Making History

Digging into memories and archives can help union members win a case

Volume CIX, No. 4April, 2009

Joel LeFevre

Can words have history? In the world of union contracts, the answer is yes.

Almost every phrase or topic in a union contract can be said to have a “collective bargaining history.” It is literally the history of how the union and an employer have addressed this topic.

When a claim, grievance or contract proposal is not directly covered by the black and white letters on a page, the first thing labor professionals ask is whether there is a significant past practice that the parties have accepted as the way business is done.

For example, as I write this at the beginning of March, most schools and colleges here in New York City and the suburbs are closed for a snow day.

School systems with union contracts typically define how many snow days the employer has to pay for before other accumulated leave is tapped. Other contracts may not cover the issue directly.

When an employer has a written policy of what occurs in the event of weather closing and then does something different, the union can file a grievance or make a claim based on past practice — even if there is no written policy.

Time for hypothetical example.

Let’s say the employer paid everyone in the past during a snow day but this year announced it could not afford to do so. (Remember, we’re talking about a union shop. In a nonunion situation, anything goes.)

Ten days after the snowstorm, in a grievance meeting with the employer, the union asserts that management must pay its workers for the snow day, based on prior practice.

The employer counters that the contract’s “management rights” clause is to be broadly interpreted and the decision not to pay is covered by its right to run the business. The employer asserts it is not being arbitrary. Rather, it has a legitimate reason for the decision: business is down 18 percent.

At the arbitration, several workers testify that they were, in fact, paid during past weather closings.

Management brings in its bargainers from 12 years ago. They say that the employer takes an expansive view of the management rights clause, which has not changed since first written. They introduce copies of their notes taken at the time which support the verbal testimony.

Their argument, in a nutshell, is this: if it’s not covered by the words in the contract, then every circumstance is covered by the company’s right to run the business.

At the conclusion of this testimony, the long-time union rep and a senior steward confer with their attorney. The union requests an adjournment date for additional testimony from the witnesses. Obviously the bargaining history has hurt the union’s case.

The employer consents to the adjournment — assuming that the union wants to concede — and the arbitrator offers the parties a continuation date in six weeks.

Back at the union, the senior rep and steward meet with the officer in charge and initiate a search for old records in contract files.

For two whole days they search in the basement of the union hall.

They locate documents from a quarter-century earlier and find a long-retired member whose signature is on one of the documents.

At the reconvened hearing, the senior steward testifies about searching in the basement — then identifies the two documents they located.

The first document is a petition to management, signed by 90 percent of the workers, asserting their right to be paid for a weather closing.

The second is a letter signed by the company founder, agreeing to pay for a one-time snow day, and stating the company reserves the right not to pay in the future. However, the letter also states that the company would always consult with and advise the union before taking an action that would negatively impact compensation.

Case closed. So what does the arbitrator decide?

The arbitrator rules that the company does not, in fact, have to pay for a snow day – despite past practice – if it consults with and advises the union, as it promised to do 25 years ago.

However, in this instance, it did not. Therefore, the employer must pay one day’s pay to all employees scheduled to work the day of the closing.

Bargaining history is an institutional memory extending beyond legal files.

It’s also the afterlife of union members taking action in the workplace and the dozens of ways that management and labor get along in the day-to-day life of the workplace.

I introduced this little story as a hypothetical discussion but I’ll confess now that this was a real case in which I was peripherally involved, and the arbitrator was Mr. Burton Turkus, whose name you may know from the ruling known as the “Turkus Award,” which influenced Broadway benefit payments.

(Mr. Turkus’s legacy was briefly threatened by the New York state budget crisis of 2009. But that is another bargaining history.) 

Joel LeFevre is the assistant to the president and the organizing director. Previous articles in this series can be found by using the drop-down search menu to look for “Knowledge is Power.”