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Dear Steward: FMLA and Past Practice

This recent case illustrates the dynamic nature of a labor-management relationship.   Below is an edited excerpt.


This CBA provided that employees who wanted to take FMLA leave (that they were entitled to) would have to use up their vacation time first.  This is a fairly common provision in CBAs.  At this plant, it had been in the CBA for 15 years.

But for the same 15 years, the employer never made employees use up their vacation time first.

Then, in the middle of the contract period, the employer announced that it was going to go back to the contract and enforce the language.

During the grievance procedure, the union was able to find out how many times employees in that 15-year period used FMLA leave without first using up their vacation leave.  And it was hundreds of thousands of times.  I think we would all agree that this met every element of a binding past practice:  clear, consistent, repeated over a period of time, and mutually accepted (both parties knew and accepted the practice).  And a binding past practice becomes an implied term of the contract, as though the parties had written it into the contract.


I ruled for the union, but there are arbitrators who would have ruled for the employer.  Those arbitrators believe that the parties’ true intent is found in the words they agreed to in the CBA.  Furthermore, that all parties hire an arbitrator to enforce the clear terms of the CBA.

I ruled for the union for essentially two reasons.  First, based on undisputed evidence, the parties had modified their contract.  They negotiated successive agreements knowing this practice was re-interpreting the original CBA language.  I think parties have this right.  Second, the employer was taking this action in the middle of the contract term.  At the end of the term, it could have said, “we are going back to the original language” and this would have forced the union to either accept that or negotiate new language in their next contract.


I sit on a tripartite panel, so I have a member of the union leadership and a member of the management team sitting with me.  I knew that one party was going to be quite unsatisfied with either decision.  I tried to convince them to settle the case.  

I wrote the opinion and circulated the draft  to both members.  The union member of the panel wanted time to re-think their position.  He was worried that there was other clear language in the contract and a clear practice which went the other way, but benefited management.   In other words, would a win in this case give management a win in a future case?  So, he withdrew the grievance.

This case shows us the dynamic nature of labor-management relationships.  These are complex relationships that require parties to be strategic.  

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