|
From The Chronicles of LR authored by Mike Hull, Labor Relations Lead (June 15, 2009) In addition to working conditions that are established by a CBA, law, or an Agency regulation, working conditions can also be established by a “past practice.” A past practice is defined as an existing practice, sanctioned by its use and acceptance that is not specifically contained in the CBA. Additionally, past practices can be enforced through the negotiated grievance procedure because they are considered part of the CBA. In order for a past practice to be enforceable, the practice must be: ·
A condition of employment;
It is clear, based on FLRA case law, that past practices are NOT contained within a collective bargaining agreement. Simply stated, a past practice is an existing practice sanctioned by use and acceptance, that is not specifically included in a collective bargaining agreement. Additionally, Arbitrators may use evidence of past practices to interpret ambiguous contract language. Under FLRA case law, a matter does not ripen into a condition of employment through an extended practice. The practice itself must be a “condition of employment” for a “past practice” to be established. Management may not unilaterally alter or otherwise change a past practice without notice to and opportunity to bargain the change in practice. Even if a past practice has been deemed illegal (a violation of law), an Agency has an obligation to negotiate the cessation of the past practice. Even if a past practice may violate law or a government-wide rule or regulation, it is required for an agency to provide the Union with the appropriate notice and opportunity to bargain any change in that past practice. However, if a past practice has been deemed to be illegal, the Union may be limited in what it may negotiate. The Agency may be allowed to cease the illegal practice and the Parties must negotiate its cessation. Below is relevant FLRA case law regarding past practices: · Conditions of employment may be established through unwritten past practices. (53 FLRA 1228) · The mere fact that a matter has been allowed to occur repeatedly over an extended period of time does not render it a condition of employment. (17 FLRA 890) · The provision of bottled drinking water for employees for an extended period of time became a condition of employment through past practice. (38 FLRA 899) · It does not matter whether a working condition is specified in the contract or merely a past practice which has developed over time. In either case, failure to afford the Union advance notice of an intended change constitutes bad faith bargaining. (27 FLRA 322) · We have specifically held that an agency may not change unilaterally, a condition of employment established through past practice, even if the condition established by the practice differs from the express terms of the parties’ collective bargaining agreement. (36 FLRA 567) and (39 FLRA 130) · The FLRA upheld the decision of an Administrative Judge (AJ) that the agency had an obligation to bargain with the Union over the removal of a television set from the break room after seven (7) years. The AJ stated that the use of the TV set had, over the course of many years, become an established condition of employment. (5 FLRA 817) · Discontinuing the practice of allowing officers to carry their weapons between home and work was a unilateral change. Advance notice to the Union was required. (52 FLRA 563) · Even where an existing practice violates the law, management must notify the Union of the intended change and entertain proposals over the impact and implementation of its decision. (34 FLRA 635) · The AJ found there was a past practice of granting administrative leave for an annual athletic competition and the agency committed a ULP when it unilaterally changed the practice. (56 FLRA No. 136) Failure to bargain in good faith: Now that I have discussed the FAA’s obligation to bargain in good faith, including written or unwritten practices, what is your recourse if you allege that the FAA is not fulfilling their obligation to do so? There are four (4) options which you can pursue. Those options are: ·
File a grievance;
The option you choose will depend on the circumstances of and the level of bad faith bargaining. For example, a grievance is appropriate for a violation of an agency rule or regulation and/or a collective bargaining agreement, while a ULP is appropriate for a violation of federal law. As explained earlier, the failure of an agency to bargain in good faith can be a ULP that is incorporated within a grievance. Arbitrators are authorized to rule on ULPs as part of a grievance. However, they are not necessarily compelled to do so. It all depends on the circumstances of each case. Whenever you are faced with the agency possibly bargaining in bad faith, it is always best to contact your regional labor relations lead or your RVP prior to taking any action. They will give you the assistance that you need in order to help you choose the correct path for redress. This will be very important especially considering the fourth bullet above due to the fact that a grievance and a ULP may not be filed on the same issue. You may need assistance in separating out the issues to ensure proper wording on both the grievance and the ULP. As you can see, there is a very high threshold in accordance with the many federal laws that cover the duty to bargain in good faith. Although I will cover documentation, as it relates to bargaining, in a future edition of the LR Chronicles, it is extremely important to document each and every conversation, correspondence, and negotiating session because you will have to “prove” your allegation to a third party. The best way to “prove” your allegation is through good, solid documentation. Please remember that the duty to bargain in good faith does not ONLY apply to the FAA. The Union is also required by law to bargain in good faith. 5 USC 7116(b)(5) makes it an unfair labor practice against the Union, if the FAA can prove that you abrogated this obligation. Mike
Hull
|
PERMERICA.COM