When does past practice expire?

[wilyum]

When an employer claims past practice, a practice that contradicts the language in the collective that the union for whatever reason did not challenge, what happens during next contract negotiations? Is the onus on the union to negotiate with the employer to cancel the new practice and revert back to what was originally written in the CA, or is it up to the employer to negotiate to have the language changed so that it reflects the new practice that the employer has been enforcing? thanks

 

[eerelations]

Up to both to negotiate it. Whoever brings it up first starts the process. If the union really wants it in/out of the contract, the union had better bring it up first as it shouldn't count on the employer to bring it up at all. If the employer really wants it in/out of the contract, the employer had better bring it up first as it shouldn't count on the union to bring it up at all.

 

[wilyum]

Up to both to negotiate it. Whoever brings it up first starts the process. If the union really wants it in/out of the contract, the union had better bring it up first as it shouldn't count on the employer to bring it up at all. If the employer really wants it in/out of the contract, the employer had better bring it up first as it shouldn't count on the union to bring it up at all.

and if neither brought it up the new practice stands? Even though it still conflicts with the language in the new contract, that did not change?

 

[eerelations]

If this practice favours the employer, it stands as long as the union allows it to stand. If it favours the union, it stands as long as the employer allows it to stand.

 

[wilyum]

If this practice favours the employer, it stands as long as the union allows it to stand. If it favours the union, it stands as long as the employer allows it to stand.

favors the employer, thanks for the reply

 

[eerelations]

So it's up to the union to take it up with the employer.

 

[HC1432]

Clear contract language prevails over past practice. If the language is clear then it does not matter what the recently accepted practice was. If the union chooses to no longer accept the practice that contradicts the language (i.e. files a grievance, discusses their position during negotiations, etc.) then the practice described in the CBA would be the outcome.

If the language is not clear, is negotiated out, or never existed, then the unchallenged past practice applies.

 

[OHRoadwarrior]

You should discuss you circumstances with your BA, who is the one that defends or is proactive in working with your individual situation with your boss. Be aware of your Weingarten Rights before opening your mouth at work.

 

[wilyum]

We've decided to grieve the issue mentioned in my original post. The grievance is regarding a benefit that is offered on an annual basis. The language is as follows: 'Employees requesting to drop their hours of work, must do so in writing to their respective manager prior to January 31st of each year.' The employer is claiming that the language is ambiguous, and since it doesn't state anywhere that it is a benefit open to all employees, they are only allowing one employee per year to reduce their hours. Does there have to be a disclaimer on every benefit mentioned in a collective that states, by the way, this benefit is open to all employees? Also, the employer is claiming past practice regarding this issue because last year a denied request by an employee for reduced hours went uncontested by the union. Is one denial enough for the employer to claim past practice, with a year having past since the first occurrence? The grievance now is for the second denial this past Jan 31st.

 

[Zigner]

We've decided to grieve the issue mentioned in my original post. The grievance is regarding a benefit that is offered on an annual basis. The language is as follows: 'Employees requesting to drop their hours of work, must do so in writing to their respective manager prior to January 31st of each year.' The employer is claiming that the language is ambiguous, and since it doesn't state anywhere that it is a benefit open to all employees, they are only allowing one employee per year to reduce their hours. Does there have to be a disclaimer on every benefit mentioned in a collective that states, by the way, this benefit is open to all employees? Also, the employer is claiming past practice regarding this issue because last year a denied request by an employee for reduced hours went uncontested by the union. Is one denial enough for the employer to claim past practice, with a year having past since the first occurrence? The grievance now is for the second denial this past Jan 31st.

If that is the entirety of the benefit, then there is no requirement that such a request be honored.

 

[wilyum]

Would you think this constitutes past practice?

 

[Zigner]

Would you think this constitutes past practice?

If that is the entirety of the benefit, then the question is moot because there is no requirement that such a request be honored.

 

[OHRoadwarrior]

If not contractually changed in a contract, past practice changes when about 3 or 4 workers get away with doing it another way and the Business Agent can use those as the most recent examples.