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
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