By Geoff Kiernan
In Broward County Sheriff’s Office, the Arbitrator held that the city could not unilaterally change the way in which the Union President was paid for doing Union work on the clock, especially when such a change violated an established past practice.
The Broward County Sheriff’s Office includes a firefighter bargaining unit which was involved in this grievance. The Union filed a grievance based on the allegation that the Sheriff violated the language of Article 7 of the CBA by debiting the President’s pay from a union time pool rather than paying him his “normal” wages. The CBA contained a clause creating a pool of time to use for union activities, but a practice had existed of union activities being paid separate from this pool despite the lack of any specific CBA language allowing such release time.
The Union asserted that this was a direct violation of the past practice which had allowed the Grievant to pursue union activities on the clock, so long as he was not leaving the Tri-county area. The Union contended that this “full release” was a “stipulated and unspoken provision of the Agreement, nonetheless an enforceable term by which both parties must observe and respect”. Furthermore, the Union argued that if the Sheriff’s Office wanted to make these changes, the correct means of doing that should be at the bargaining table, rather than unilaterally changing the contact.
The Sheriff’s Office contended that nothing within the contract language, or past practice, explicitly prohibited management from using time pool deductions to offset the Union President’s full release. The Sheriff’s Office denied that an enforceable past practice had existed between the parties. The Sheriff asserted that in order to prove a past practice, the practice must be incontrovertible and easily discernable to both parties. The Sheriff argued that throughout the arbitration, the Union failed to determine exactly what the past practice was, and thus it would be unfair to hold the employer to a murky standard.
The Arbitrator disagreed with the Sheriff’s argument, finding that a past practice was established. He found that evidence clearly showed that prior to June 2009, a majority of the Union President’s hours were considered “regular” and did not require the use of the union time pool. However, starting June 2009, which the Union promptly grieved, the vast majority of the President’s hours were deducted from the Union time pool. The Arbitrator notes that the Sheriff does not dispute this claim; it simply asserted that the contract language gives them the inherent right to this, and thus any claim of a past practice is unfounded.
The Arbitrator dismissed this stating:
…the claim that a binding past practice failed to exist is clearly inaccurate. To be sure prior to June 2009, the Grievant’s past time cards demonstrate that the majority of the Grievant’s hours were classified as regular hours…clearly, the Employer systematically altered the way in which the Grievant’s work hours were classified without first consulting the Union.
The Arbitrator went on to explain, that since the Union bargained for the language of the contract there was “an inherent duty to bargain over any proposed changes regarding the manner in which the article is implemented.”
The Arbitrator rejected the idea that no past practice had been created, because the evidence clearly showed a change in how the Union President’s wages were paid. The Arbitrator held that since the Union bargained for this language, the Employer is unable to change the interpretation of this article unilaterally without first consulting the Union.
Editor’s Note (Jim Cline): This case demonstrates the importance of “past practice.” It seems here that Sheriff’s Office had a colorable claim that would have allowed the release time to be docked out of the Union time pool. After all, the pool was seemingly adopted for that purpose and no other contract language existed defining a right to release time outside the pool.
The primary responsibility of an arbitrator on a contract interpretation case is to determine the parties’ intent. As the Arbitrator noted, CBA language is not interpreted in a vacuum. To determine the parties’ intent, past practice and negotiations history becomes important.
Although the CBA language here authorized access to the pooled hours, it did not expressly state that this was the only source of allowed release time. Therefore, a look to the surrounding past practice revealed an intent to allow other forms of release time. As arbitrators have found previously, those other unwritten past practices, in essence, become part of the enforceable CBA.
