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Can Employers Change the Rules in the Middle of the Game?
For years, your employer has allowed you and your co-workers to play radios while sorting packages. But, one day, your boss says: "No more radios!" Your contract does not say anything about radios. Can your boss make this change?
Until recently, your boss has allowed you to stop work a few minutes early so you can wash up. Now, she says you have to stay on the job until your finish time. The contract is unclear about whether you have "wash-up time." What can you do?
You've always been allowed to use three sick days each year to stay home with your children if they are sick. Now your boss says you can't stay home unless you are sick. The contract specifically says sick days can only be used if you are sick. What happens?
In some situations like these, you can fight the actions of employers who change the rules on their own -- thanks to a legal principle called "past practice."
You won't find mention of past practice in any labor laws. The tradition of giving weight to how things were done in the past has been developed by arbitrators who rule on disputes over the interpretation of union contracts.
What makes something a past practice? The practice must be a customary way of doing things in your workplace that, while not spelled out in the contract, has been done for a long time, has been done consistently, and has been done with the knowledge and acceptance of both your boss and the union.
In the "radios" and "wash-up time" examples, the employer knows about and has allowed those activities for years. There's nothing about playing radios, one way or the other, in the first contract. In the second example, the contract is unclear as to whether or not wash-up time is allowed.
In both these situations, you would have a strong case if you filed a grievance against your boss.
It would be much more difficult to win this kind of grievance if the contract clearly prohibited the activity.
Take the third example listed above -- the practice of using sick days to take care of sick children. Here, the contract was clear. It specifically said you could only use sick days for your own illnesses. So, it would be hard to win a past practice grievance.
Cases involving employee benefits or privileges make for strong past practice grievances. But, in most situations, it's much harder to argue "past practice" when employers change methods of operations or introduce new technology. Other contract language may be helpful (like a requirement to give the union notice about changes), but the argument that "we've always done it that way" probably would not work in those cases.
Being aggressive--and timely--in defending your contract can help stop management from using past practice as a defense against a union grievance. If workers wait years to file a grievance against a new management policy that isn't directly addressed in the contract, management may argue that it has become a past practice. This is why it is very important to challenge management actions right away when you think they may violate your rights.
Many situations aren't cut and dried, and this area of labor law can be very complex. But this should not stop you from discussing the problem with coworkers and seeking advice from your steward or local union officials if you think your employer has violated your rights by changing the rules in the middle of the game.
Past Practices Victories
Examples of past practices not written in a contract but enforced by arbitrators because employers had allowed them for a long time include:
lost time pay while seeing the company doctor
the right to swap shifts
the right to receive sick pay during layoffs
the right to use company vehicles to commute to work
yearly company picnic
discounts on company products
free meals and coffee
pay for travel time
considering the lunch period as paid time
Christmas bonus
Get It in Writing
As shop stewards we spend a lot of time talking -- preaching unionism; communicating important information about our job; educating members about critical legislative issues; or just telling members what they missed at the monthly union meeting.
We live in a talking culture. We forget to put things down in writing.
That's not what they teach in business school or in law school. Supervisors and lawyers have been trained to put everything down on paper.
It allows them to control what is called the record. If you go into a grievance meeting and your supervisor takes notes, chances are those notes will form what is called the record of the meeting. Your memory and their memory can be faulted. Notes cannot.
That is why it is important to get into the habit of buying a small notebook and using it in all of your capacities as a steward. Most important, use it while you are handling complaints and grievances.
In your interview step with the member, write down what he or she says. Don't worry about spelling. Just get it down. Use your grievance interview sheet to help write down the story.
The very act of writing the member's story down conveys a professional image of your role to the member. And just as important, the member will be more truthful in giving you the whole story -- warts and all.
Sometimes members think they are helping the steward by embellishing a story to make it more convincing. Our role as steward is to get the truth and get the member justice. The act of writing contributes to that goal.
Taking notes in the grievance meetings conveys a sense of no-nonsense and professionalism to your employer counterparts as well.
The employer's paper trail
Let's take this issue of writing a step further. How many of us have been in the situation where the employer has created a paper trail in order to build a case against our member? Verbal warnings and letters may be indicated on some kind of disciplinary sheet in the member's personnel file.
What does the member usually do if they are assessed a verbal or written warning? In all too many cases the member does nothing. Stewards and the local union itself must counsel all members never to accept discipline that the member and/or the local union feels is unjust.
That doesn't mean every letter of warning has to be arbitrated. In many cases, it is sufficient to challenge that letter with the member's and/or union's version of what happened. This challenge should be put in writing and attached to the record or it should be properly entered directly on the discipline sheet, if possible.
If these warnings are not challenged in writing, they stand as accepted. Management has made an art form out of progressive discipline. The union needs strong ammunition in any disciplinary situation, because the next incident could trigger time off or termination.
Employer harassment
There are times when a member comes to his or her steward with a complaint about a supervisor who seems to be picking on the member. He or she gets the worst assignments. Or the supervisor always seems to breathing down the member's neck.
Issues such as employer harassment (sexual harassment is a different which we will deal with in another section) are ones which usually boil down to the member's version of the story versus the supervisor's version.
As soon as a member comes to you with a harassment issue you have got to tell the member to document each and every incident in which the harassment occurs. Just as management builds disciplinary cases against our members, we have got to build the case against the offending supervisor.
Tell the member to write down the incident, when it happened, what happened, and were there any witnesses. By putting together a record of the harassment, the member is directly involved in the grievance process and the local union will have the necessary documentation to make the best case.
Remember, get into the habit of writing down everything.
