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Dear Steward: CBA is More Than What’s in the Contract

A manager and the union president are discussing the CBA.  The manager says:  “If it’s not in the contract, you don’t have it.”

At a labor conference last month, two nationally-known labor arbitrators responded to this exchange.

Arb. #1

The union president’s response should be respectful, and he or she should laugh respectfully.  And then, tell the manager:  “You’re wrong.”

The CBA is a contract, like any other.  But it is also (as the US Supreme Court has ruled) a living, breathing document.  Some parts of the contract are very specific.  And a lot of it is not specific.  That’s probably because you don’t know everything that’s going to come up.  The courts recognize this and that the relationship is ongoing.

The manager’s statement is just not true.  Yes, you have what’s in the contract.  But you also have what’s outside the contract.  What arises outside the contract is your interpretation of the language.  For example, a binding past practice is an implied term of the contract.  The just cause provision is subject to interpretation as well, by how the parties have handled discipline and discharge.

You can also have side letters.  I know parties who don’t want to open up negotiations to modify the CBA, but they will use a side-agreement.  You have grievance settlements.  If the parties don’t write at the bottom that it is signed without precedent or prejudice (as in, the matter can be raised again), the settlement is precedent-setting.  And the arbitrator will enforce it, as though it were part of the CBA.

Arb. #2

The manager is speaking from a position that was commonly held in the 1950s.  It was called the reserved rights theory.  And the manager summarized it well:  if it’s not in the contract, the employer has kept it for itself.

But as more parties adopted CBAs, as more federal and state laws were passed, as more court decisions came down, the reserved rights theory fell away.   It has been decades now where the labor-management relationship consists not just of the contract, but also practices, industry customs, side agreements, grievance settlements, etc.

-L2019 Steward Council

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