Monday, April 2, 2012

Arbitrator rejects Union's claim that past practice modified contract

Arbitrator Thomas Gallagher has issued an Award in a dispute between the City of Chisolm, Minn and AFCSME, Council 65, rejecting the Union’s claim that the City breached its agreement by allegedly ignoring a past practice concerning overtime. While the agreement contained a fairly broad management’s rights clause giving the City broad authority to “schedule work”, the Union claimed that the parties had established a practice by which employees called in to work early had the option to either leave after eight hours or continue to work their full shift, earning overtime for hours in excess of eight.
Both sides introduced evidence concerning prior incidents and grievance settlement agreements, but Arbitrator Gallagher found the evidence insufficient to establish that the past practice rose to the level of an amendment to the contract, modifying the management rights clause.
The arbitrator noted
In rare cases, arbitrators may rule that the parties to a contract have shown by their conduct—i.e., by practice—an intention to amend contract language that is not ambiguous. In such a case, however arbitrators require a showing, beyond mere practice, that the parties have a mutual intent to amend clear, unambiguous language. Arbitrators require not only a showing of longstanding and consistent conduct, but, in addition, some indication that both parties have understood that the practice conforms to an intended amendment of that clear language.
Finding nothing in the evidence showing the Employer decided to accept a limitation on its broad authority to schedule work, the arbitrator denied the grievance.

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