Is a supervisor's error sufficient to establish a binding past practice?

Two recent arbitration awards on grievances brought by AFSCME Council 65 address this question.

Addressing a dispute concerning a claim for pay for travel time, Arbitrator Thomas Gallagher has rejected the Union's grievance and their claim that the employer (Allina Hospitals and Clinics)  breached an established past practice when it refused to pay travel time to two bargaining unit
employees.

 Those employees, like others at the Employer's Faribault Clinic, were occasionally required to report for the day to the employer's training facility, located approximately fifty miles away from the clinic at which they normally worked. The parties stipulated that "for many years" employees were paid for the time they spent traveling to and from the training facility and that vouchers were submitted to the employees' immediate supervisor for approval and were routinely approved.

In May of 2011, an eleven year employee of the employer, assumed the position of Clinic Manager at Faribault. In April of 2012 she became aware of the practice of payment for the travel time and ceased approving the payments. She did so because "the practice was contrary to Allina's travel time policy ...the practice had occurred because of the error of the immediate supervisors responsible for approving wage-claim vouchers, and ... none of the other Allina clinics followed the practice." The Union pursued a grievance to Arbitration and on January 12, 2014 Arbitrator Thomas Gallagher issued a decision.

The Arbitrator rejected the Union's claim that the prior payments had established a binding past practice. He noted that past practice is traditionally used to show a mutually accepted definition of ambiguous contract language,  to demonstrate an agreement to change a clear contract provision or to establish an agreement to add an entirely new provision to the contract. With regard to the latter two uses, Arbitrator Gallagher observed: 

       the evidence must show that the parties reached an agreement  to give the practice at issue binding, contractual effect in the future. To do so, evidence must show that the practice is unequivocal, clearly enunciated and acted upon, readily ascertained over a reasonable  time and accepted by both parties. As stated in Control Data Corp., 69 LA 665, 669 (Hatcher 1971), a practice "to be enforceable, must be supported by the mutual agreement of the parties. Its binding quality is due not to the fact that it is a past practice, but rather to the agreement on which it is based." In other words, a practice can rise to the level of a contractual obligation only if both parties show that they accept it as such. There must be evidence that the party to be bound by the practice intends to be bound by it in the future.

The Arbitrator concluded that while the evidence showed that the immediate supervisors had authority to approve the vouchers, "they did not have the authority to enter into a binding contractual obligation on behalf of the Employer that would supersede the travel time policy." Rejecting the Union's similar argument under the FLSA, Arbitrator Gallagher concluded that a "custom and practice" could not be based on the error of supervisors who had no authority to create policy.

In an earlier arbitration involving the Union and Greenway School District No. 316, Arbitrator David Paull also addressed the past practice question. Faced with somewhat similar arguments (involving a change in the method of calculating overtime), Arbitrator David Paull concluded that, while the contract was silent on the matter, the School District's 30 year practice of including all paid time in the calculation of overtime was a binding past practice. The District maintained that it had only recently discovered the practice, and claimed that it had been the product of a mistake or unapproved behavior. Arbitrator Paull noted that the denial of knowledge of the practice on the part of the superintendents was insufficient to overcome evidence of a "clear, unequivocal and consistent practice." He held:

        The concept that there can be no mutuality without actual knowledge is, at first glance, both a reasonable and attractive one. Mr. Adams and Ms. Jorgenson are both relatively new to District administration. Their reaction to the discovery of the practice, and their desire to make immediate changes, is completely understandable.
       However, "mutuality," not "knowledge" is what is required by this analysis. In this case, the length of time over which this practice has existed is sufficient to establish its mutual acceptance by both sides. The cases teach that mutually acceptability can be demonstrated, even in the absence of knowledge on the part of recent administrators, based on well established mutually accepted prior custom. Superintendent Adams and Ms. Jorgenson may not have been aware of the practice. But the mutual acceptability of the custom is implied based on the evidence.

Accordingly he sustained the grievance and ordered the affected employees made whole for their losses.

Arbitrator Gallagher's award can be found here.  Arbitrator Paull's here.
   

Pay for snow day?- Same city, same storm, different results

Beginning on the afternoon of Friday, February 8, 2013, a snow storm began which ultimately left the town of Wallingford, and much of Connecticut, with up to forty inches of snow. On Sunday, the Mayor of Wallingford advised the non emergency services employees of the town not to report to work on Monday. The town offices were closed, according to the Mayor, because of the unprecedented snow fall and unsafe travelling conditions. The Mayor announced on Thursday, February 14, that employees could take a vacation day for the preceding Monday when offices were closed, but otherwise employees would not be paid for the day. Unions representing various units of Town employees filed grievances seeking to have that decision reversed and employees compensated for the missed day.

On December 20, 2013 a panel of arbitrators from the Connecticut State Board of Mediation and Conciliation issued an award on the grievance filed on behalf of Town supervisory employees. The panel rejected the grievance and found no violation of the cba. It noted that the "blizzard is regarded as one of, if not the biggest storm in terms of snowfall in recent memory." On the issue of pay, however, it observed: "The issue is not whether there is affirmative language in the contract to support this action, but whether there is any language that specifically curtails or limits management's rights in this regard." Finding "no requirement that employees be paid for not working," and noting the "unprecedented emergency conditions" presented by the storm, a majority of the panel concluded that the Town did not violate the contract by the non payment of wages.

On January 9, 2014 a separate panel, addressing a grievance arising from a different unit of Town employees found the non payment of those employees in violation of their contract and ordered that they be reimbursed. The contract in this dispute contained language prescribing a normal work week as being forty hours. (This language was apparently not contained in the supervisor's contract.) The panel was not persuaded by the claimed "unprecedented" severity of the storm, and noted that the "CBA is silent as to whether the Town can require the use of vacation days for emergency closures and there is no past practice available to support the Town's position." Sustaining the grievance the panel concluded:

Article 6, Section 1 of the CBA sets forth the normal work week of Town employees which may not be altered by a unilateral decision to close Town offices even when a major snow storm creates challenging conditions for Towns and their employees.

The Record Journal reports on, and links to, the decisions, Differing labor decisions stump Wallingford officials (scroll down), and notes that grievances filed by Unions representing other town units are pending.

Refusal to submit to fitness for duty exam deemed insubordination, termination upheld

Arbitrator Jerry Fullmer has upheld a grievance filed by the Ohio Fraternal Order of Police challenging the suspension of a police officer, but rejected a second grievance over the officer's termination. The grievance upheld involved a five day suspension, imposed because of grievant's alleged conduct in addressing his Chief. Grievant was upset about what he believed to be the improper discussion of his medical information with individuals who had no need to know. Arbitrator Fullmer did not reach the merits of the issue, however, finding that the City failed to give grievant proper notice of the charges against him and failure to provide him with copies of written statements as required by the parties' cba.

The termination grievance involved two separate incidents, both leading to the termination decision. The first involved grievant's refusal to submit to a fitness for duty exam. Separately, grievant was accused of engaging in use of "physical force and abusive and threatening language toward a supervisor" who was delivering a disciplinary notice at his residence.

Regarding the first incident, the Arbitrator rejected the Union's claim that grievant had been denied due process. Arbitrator Fullmer determined that grievant had voluntarily elected not to participate in the pre-termination hearing  required by Loudermill and the parties' cba. Grievant claimed he had refused to attend on the advice of his private attorney and because he had received calls from other officers claiming that he was being tricked and would be arrested if he appeared. The Arbitrator observed:

The Grievant of course had a perfect right not to attend the April 18, 2013 Loudermill/Section 11.3 hearing. His attorney may have had a perfectly good reason to render his unspecified advice that the Grievant not attend. The question her is whether the Grievant may complain now, seven months later, that he was not accorded such a hearing when he chose not to attend.

The fact that the hearing did not take place because of grievant's failure to attend was not deemed a violation of grievant's due process rights.

On the merits, the Arbitrator concluded that the principle of "obey now, grieve later" applied.  While grievant believed the order was improper, the contractual provision he relied on was not, in the opinion of the Arbitrator, so "direct" or "clear" as to privilege grievant's refusal. Accordingly the Arbitrator found the City's claim that grievant had been insubordinate was well founded and that the termination was for just cause. In light of this finding the Arbitrator found it unnecessary to consider the validity of the second ground cited in support of termination.

The Mount Vernon (Ohio) News links to Arbitrator Fullmer's Award here.

Military leave, management rights and past practice-Arbitrator upholds grievance

Arbitrator Timothy Buckalew has sustained a grievance filed by New England PBA Local 550 claiming that the Worcester County, MA Sheriff's Department violated its collective bargaining agreement and past practice when it changed the method of compensating officers for weekend military drills.

The cba provided that officers were entitled to leave with pay of up to 17 days "for his/her annual tour of training duty." The evidence established that for at least six years officers were paid for weekend drills as well as summer annual training. In the summer of 2012  the Department stopped paying officers for weekend drills, based on a belief that the cba only provided for pay for annual training, not weekend drills.

The union grieved the dispute, and the matter was presented to Arbitrator Buckalew for resolution. Initially, the Department maintained that the dispute was not arbitrable, arguing that the management rights provision of the cba excepted from arbitration "the customary powers, authority and prerogatives of management ...including, but not limited to ...the allocation, scheduling and granting of all leaves ... " and provided that an exercise of a management right pursuant to the agreement was not subject to the grievance procedure. Arbitrator Buckalew rejected this position, observing that the express provisions of the contract governed military leave and that "[t]he existence of a contract clause covering the benefit is an express abridgement of management's rights ... and refutes the Employer's assertion that military leave is a matter solely of the Employer's discretion ... ."

On the merits, the Arbitrator determined that it was undisputed that the non payment for weekend drills represented a change in the administration of the cba. Finding no basis to conclude that the prior practice was contrary to state law, he upheld the grievance, noting:

The Employer has allowed paid leave for several years for weekend military training. That
payment was open and approved by the payroll department and the administration of the jail and
was not contested or questioned despite numerous instances of officers claiming the pay for
weekend drills. .... I find that the practice of treating weekend training as functionally the same as the annual tour training is long standing, repetitive and indicates a mutual understanding that Article 24 allowed such payments. ... . The failure to follow the established application of the contract violated Article 24 and shall be remedied by restoring the status quo and making whole officers who had unexpended earned military leave and were required to take unpaid days or to expend vacation or other leave to cover weekend drills.

NEPBA links to the Arbitrator's award here.