Over the years I have noticed many misconceptions that OPBA members possess in the area of labor law.  Those misconceptions range from “the law provides us with guaranteed breaks” to “HIPPA prevents my employer from inquiring about my illness” to “we’ve always done it that way so it’s a past practice.”    
Each of these misconceptions has a basis for belief but none are actually true.  In this article I examine and discuss the real law and meaning of the popular term “past practice”.

Past practice is a term of art that arises when a party to a collective bargaining agreement attempts to enforce a “practice” regarding a matter that is not included in the written contract.  It is also asserted in order to assist in the actual interpretation of a confusing written term of a contract.  And finally, past practice is sometimes cited to support a claim that a “clear” term of the written contract has been “amended” by mutual agreement as evidenced by the parties’ past practice.

Evidence Required To Establish A Past Practice

Most arbitrators have recognized that for a past practice to be established that certain elements must be proven  in regard to the practice.  The practice must be unequivocal; clearly understood and acted upon; and readily ascertainable over a reasonable period of time as a fixed, and established practice accepted by both parties.

A couple of understandable ways that arbitrators have defined a past practice are: “a pattern of conduct which appears with such frequency that the parties understand that it is the accepted way of doing something”; “a practice exists when a certain result has been utilized in repetitive and identical circumstances”; “a practice is established if, when one circumstance occurs, it is consistently treated in a certain way”. To constitute a past practice, the occurrence need not be daily or weekly, or even yearly, but when it happens, a given response to that occurrence must always follow.

Past Practice When The Contract Is Silent

In cases where the labor contract is completely silent with respect to a given activity, the presence of a well-established practice may constitute an “implied” term of the contract.  In law, an implied term of a contract is as enforceable as a written term.
In labor law, though, the enforcement of an implied term often depends on whether the term involves methods of operation and/or direction of the workforce or whether it involves a benefit of personal value to the employees.  Generally, past practices involving a benefit are permitted to become an implied term while practices involving the exercise of management rights are not.

As we all know, arbitrators have permitted wide authority in management to control methods of operation and to direct the work force, including the right without penalty to make changes if the changes do not violate some right of the employees granted elsewhere by the written contract.  As such, arbitration case law contains many examples of a past practice not becoming an implied term sufficient enough to prevent management from: changing work schedules or reassigning work or determining the number of workers or eliminating a job and/osr adding or eliminating job duties within reasonable limits.  The rationale behind these cases is that if management really intended to concede its management rights, then it would do so expressly in writing, and not implicitly.

An illustration of this outcome would be a situation where management has retained its  right to schedule and pursuant to that right management has utilized fixed shifts for several years.  Despite this history the parties have not referenced such a practice anywhere in their labor contract.  When the employer suddenly decides to implement rotating shifts instead, most employees think that the long standing  past practice of utilizing fixed shifts will prevail.  Uh, no; the contract is silent and the implied term we think exists will not be enforced because a management right relating to running the operation is involved.

In contrast to the freedom management is afforded regarding its basic functions, arbitrators often rule that past practice matters involving “a benefit of peculiar personal value to the employees” can be implied enough to become enforceable.  Because these matters generally do not involve management rights and because a long standing but unwritten benefit is at stake, arbitrators have found the provision of the benefit to be implied. 

Arbitrators reason that an employer would not ever provide something of value to its employees, regularly and routinely, unless it intended to do so.  Wash-up periods, lunch period arrangements, paid work breaks, free coffee or free meals, payment of employee’s salary during workers’ compensation waiting period, release time for collective bargaining, allowances and maternity leaves of absence are all examples of a “benefit of a peculiar value” that arbitrators have permitted to become implied terms of a contract.

A great example of a past practice becoming an implied term of the contract involves the giving/taking of a promotional test in 24/7 operation like a police department.  In this instance there will always be candidates taking the exam while they are on duty and other candidates taking the exam while they are on their off time.  Yet rarely is there a contract term that addresses this activity.

In most cases involving this activity the parties have, knowingly or not, developed a past practice of releasing working candidates from duty and/or compensating off duty candidates for attending.  Even though this may happen once every three (3) years, it happens the same way each time. Should the employer ever decide to terminate such a practice and refuse to pay those taking the test while off duty, it will probably be on the losing end of an implied term past practice case.

Past Practice Used To Interpret A Contract Term

The most common use of a past practice is for the interpretation of ambiguous or unclear contract language.  This makes sense because unclear language can best be defined or explained by the parties’ “intent” in agreeing to and constructing the contract’s language. And a party’s intent is most often and best defined in its actions.  Those actions are demonstrated and measured through the “practice and custom of the parties” in relation to the unclear term.  Thus the parties’ past practice often provides the real meaning to an unclear contract term.

The general attitude of arbitrators is that they give great weight to a past practice when interpreting unclear language.  They routinely rule that where a practice has established a meaning for language in a contract, the language will be “presumed” to have the meaning given it by that practice.
A past practice used to interpret an ambiguous term does not have to be so “frequent and regular and repetitious.”  For purposes of interpreting ambiguous language, relatively few past instances have been required to establish a binding practice.  This is especially so when the incidents giving rise to the issue rarely occur.  So long as the parties’ practice is consistent upon each infrequent occurrence, it still rates as sufficient to define the ambiguous term.

Past Practice Used To Permit Variances From Clear Contract Language

While past practice is frequently used to establish the intent of contract language that is subject to different interpretations, it rarely can be used to alter the meaning of a clear and unambiguous term.  In almost every instance the clear language is enforced.  This is so even where an arbitrator overwhelmingly believes that, on the basis of fairness, the past practice should have prevailed.

Here are some illustrative arbitration holdings standing for the principle that clear language always trumps a past practice:  “Where a conflict exists between the clear and unambiguous language of the contract and a long standing past practice, the Arbitrator is required to follow the language of the contract”; “While the Arbitrator recognizes that it is difficult to accept the overturn of a fifteen (15) year past practice, the Arbitrator is required to do so in light of the clear and certain language”;  “Past practice” is a useful means of ascertaining intention in case of ambiguity or indefiniteness, but no matter how well established a practice may be, it is unavailing to modify a clear promise.” 

A good example of this principle involves the specific time limits set forth in a grievance procedure that also includes a provision requiring the parties to “strictly adhere” to such time limits.  Even though the parties may have established a past practice of routinely ignoring and/or relaxing those specified time limits, should one or the other insist that one acted untimely, that insistence will prevail.  This is because of the contract’s clear language requiring strict compliance.

Any past practice that the parties have mutually followed or that have been enforced by an arbitrator can ultimately be broken and discontinued.  This can only occur, though, upon the expiration of the contract, during the collective bargaining process.  At the table the party who wants to terminate the practice simply declares that the practice will no longer be recognized, thus allowing or forcing the other party to regain (or not) the practice through the bargaining process.
As the foregoing indicates, what OPBA members often think of as a past practice is probably still a past practice.  It is wrong, however, to think that every past practice can be made to be binding as if it was a written contract term.  For further guidance and explanation of the law of past practice, consult your OPBA Representative.    

Remember Senate Bill 5, the itsy bitsy piece of legislation that consumed the OPBA for eleven months last year?  Remember Senate Bill 5's long formation process involving  additions, modifications and ultimately the final amendments that resulted in the final legislation?

To refresh your memory, among the last additions to Senate Bill 5 (SB5) were the prohibitions against fair-share agreements and payroll deductions directed to union political action committees.  Those additions had nothing to do with SB5's stated purpose – "financial relief and flexibility for strapped public employers" – and everything to do with its real purpose which was to strip unions of their financial resources, the same resources used to elect Democrats and/or to support causes favorable to workers.

Fair-share agreements are essential for any chance of success by a union.  Simply put, they are the provision in your contract that requires all employees to either join the union or to pay their fair share to the union.  Obviously, such agreements maximize the union's financial resources but they also foster the American tradition that no one (without good cause) should be permitted to get a "free-ride".

Public opinion polls taken last Fall  indicated that Ohioans bought into many of  SB5's elements.   They liked SB5's pay requirements and its anti-seniority prohibitions not to mention its shift in health-care burdens.  At least those elements of SB5 supported its stated purpose.  Had those elements of SB5 been adopted, public employers could have then followed the tactics routinely used by many private sector non-union employers ie., eliminate the more senior, highly paid employee leaving behind the newer, less paid employees, some of whom  are now compensated from a newly created 2nd tier for wages and even benefits.

Had SB5 been limited to include only those aspects addressing employee wages and benefits, it would have been a much tougher fight for your OPBA sponsored "Protector of the Protectors" opposition group to defeat the bill.  Instead, Ohioans were wise enough to recognize SB5 for what it was:  an over-reach; a law driven by political vindictiveness and a sinister ulterior motive; a hypocritical grab by anti-union/anti-Democratic politicians, who themselves survive and/or thrive from their own special interests' political action committees.

Thankfully, Ohio voters recognized and rejected the "over-reach" that Senate Bill 5 represented.  Ohioans sent a resounding message to Kasich and his supporters to back off from any political agenda that serves no purpose other than to eliminate political opposition and worker's rights.
Unfortunately, there still are a substantial amount of misguided and hostile individuals in Ohio and nation-wide who believe that unions are the cause of all evil and a hindrance to the success of the U.S. economy.  They have now turned their attention and energy to implementing "right-to-work" laws in many of the 28 states, including Ohio, that currently do not have one. 

Right- to-work laws came into effect in 1947 with the passage of the "Taft-Hartley Act" by the U.S. Congress.  Under the National Labor Relations Act (NLRA), passed 12 years earlier in 1935, all private sector unions were allowed to enter into labor contracts that required employees at private sector workplaces to either become members of the union or pay their "fair-share" for the union's services and benefits.  The Taft-Hartley Act amended   the NLRA so as to permit any of the 50 states the ability to pass their own law that would forbid "union shops" in their state.  To date, 23 states have implemented a right-to-work law.

Proponents of right-to-work laws of course claim that individual freedom is restricted when workers are forced to pay fees when they do not wish to.  Looking beyond that claim, the real motive of right-to-work law proponents is no different than the motive of the over-reaching legislators in Ohio – to weaken the union at the shop level and to undermine the financial resources of the private sector unions who, too, generally support and contribute to Democratic and pro-worker candidates and causes.

This obvious motive notwithstanding, right-to-work campaigns famously assert the line successfully used by the Indiana Chamber of Commerce during its successful campaign for a right-to-work law there – "that the law helps create jobs, because companies searching for a good location won't even consider non-right-to-work states for their business growth and expansion plans."

Whether or not right-to-work laws harm states is a matter of interpretation.  Former U.S. Labor Department economist Jared Berstein recently told the Washington Post that "other variables affect the job-growth equation, including natural resources, infrastructure, workforce quality, location, standard of living, schools, tax rates and other policy decisions not related to unionization.

Even our beloved Governor Kasich knows that union shops, and laws allowing fair-share agreements, are not an obstacle to job growth or to a state's fiscal success.  Kasich is on record as being "dismissive" of a right-to-work law in Ohio, commenting to the Associated Press that "the public is not prepared for that and does not have an understanding of the issue."   

Kasich must concede and disagree with the falsehoods spread by right-to-work proponents because he often boasts about the superior ranking and favorable conditions he has brought to Ohio.  Ohio's willingness to permit unions to enjoy full membership has not stopped American Greetings,  Wendy's and others from leaving or Ford, Chrysler and Timken from expanding.

The sad fact is that hardly any private sector employees are actually "union" and covered by collective bargaining agreements.  There are less than 2 out of every 10 U.S. workers who are union members.  Under this circumstance, how much difference could a right-to-work law even make?  Except, of course, to the financial resources of the union, some of which support political causes and candidates!

I recently read an article written by Holly Rosenkrantz for Bloomberg News where she quoted a labor law professor from Clark University as saying "There is a very strong likelihood that a Republican Congress and a Republican White House would pass a national right-to-work law.  It should be expected from a Republican Congress that, in terms of national jobs growth, sees unions as a part the problem rather than part of the solution."

In the same article, Rosenkrantz wrote that "Labor leaders say Republicans trying to limit unions are misreading public sentiment, as demonstrated by Ohio voters who repealed a law limiting bargaining for public employees".   The labor leaders remark that because of the "backlash against governors who have tried to pass anti-worker laws off as job creation, national Republicans would be wise to take heed."  The Bloomburg News article closed with a quote from Harley Shaiken, a prominent labor professor at Cal Berkeley, who said "the likelihood of a national right-to-work law dimmed somewhat after the Ohio vote and the effort in Wisconsin to recall Governor Scott Walker, who also won legislation restricting public worker unions.

How about that, members of the OPBA community?  Congratulations, you and the rest of the broad based "Vote No" campaign not only shut down Kasich and his cronies, you may have also become the actual catalyst to a country-wide shutdown of this irrational and wasteful right-to-work movement.  
Keep up the good work!

Caught in Crossfire

Police officers are trained to protect themselves from all lines of fire.  They are taught to stay a step, and a thought, ahead of their aggressor.

Senate Bill 5 is one such aggressive force.  That legislation’s quest to weaken public sector unions and workers has unfortunately dragged in the police officer profession.  Because Senate Bill 5 includes the police profession, virtually every law enforcement officer in the State of Ohio faces a severe reduction in what had become the “going rate” for what was once considered a worthy profession.

The line that Governor Kasich and Senate Bill 5 supporters will use in the referendum campaign is that public sector workers make more money and have better benefits than their counterparts in the private sector.  They will say that this (unproven allegation) is unsustainable given the financial struggles facing the employers of those employees (local governments).

There may be some truth to that line in general, but there is also a significant falsehood.  And that falsehood is grouping the profession of “police officer” in the broad category of “public sector worker”.

Unlike a service department worker or a water treatment worker, or a snow plow driver, or an administrative secretary or a finance director or a records clerk, a police officer does not have a counterpart (an employee doing like work) in the private sector.  Except for the police officers working for the Cleveland Clinic and perhaps other hospitals, there is no such thing as a police officer working for the private sector.

The falsehood that Kasich and his supporters infer, if not express, is that public sector police officers make more than private sector police officers and it’s all due to collective bargaining so let’s undermine their ability to bargain.  No Governor, the market forces that you so trust have properly defined the police officer’s wage and benefit package

The true measuring stick for Ohio’s police officers wages and benefits is determined by comparing them to what police officers in other cities and other states make, not by comparing them to their employer’s other workers or to their city’s school teachers.  Comparisons are the proper way that the value for any object is determined, but the comparison must be between like objects.

When you determine what is a fair price for selling or buying a home you look to see what other similar homes are selling for.  You do not measure a home’s value by comparing it with the costs of an apartment complex or commercial building just because they are in the same neighborhood.  While they all may be structures within a near vicinity, their values are all measured with different measuring sticks.

The market adjustment that Kasich and his supporters want to achieve with Senate Bill 5 has already successfully occurred under the current bargaining law.  Trust me, when the OPBA’s employers struggle so do the OPBA’s members.

As such we have made virtually no progress in pushing up law enforcement wages and benefits ever since September, 2008.  And until revenues begin to rise again we will continue on the same course, with or without Senate Bill 5.

The 5^th Quarter Management Tool

For a few years now I have been referring to what I have deemed the 5^th quarter in the law enforcement collective bargaining process.  Not coincidentally, the past few years have been marked by the “Great Recession.”

The 5^th quarter is the ultimate push back technique utilized by employers when they feel squeezed by what they consider an unfair decision issued by a “neutral” such as a fact-finder, conciliator, or arbitrator.  As for example, the employer who finds itself “ordered” by a conciliator to pay a raise that the employer maintains it cannot afford.

What this employer might do is file an action in Common Pleas Court seeking to vacate the conciliator’s “order”.  This is one way how the OPBA can be forced into a 5^th quarter in a process that everyone believed was a four quarter game.

Creating a 5^th quarter can benefit the employer in several ways beyond the obvious attempt to “overturn” the conciliator.  Most important it creates another battle with the union as the union is forced to counter-claim, in court, with its own action to “enforce” the conciliator’s “order”.

While the parties engage in what can be lengthy and costly litigation, the employer is not obligated to implement the terms of the conciliator’s “order”.  Until the Common Pleas Court rules on the enforcement/vacation countering claims lawsuit, there is no basis for either the union or the employees to compel payment of the ordered wage increases.

As you can imagine, creating a 5^th quarter can afford the employer great leverage in regard to the negotiations’ final outcome.  During the litigation process, which can  be further lengthened by an appeal to the Appeals Court, the parties can continue to bargain and make an agreement that would then “moot” the litigation.  Most assuredly any such agreement reached will involve the union “giving up” something that it had obtained in conciliation.

Indeed the employer does not even have to wait until bargaining to invoke or create a 5^th quarter.  During the term of every labor contract the employer is able to take action either under its lay-off clause or pursuant to a lay-off provision contained in a civil service rule.

So what is there to prevent an employer from claiming that its finances are necessitating a reduction in expenditures to its police department?  That kind of declaration then allows the employer to approach the union and demand that it choose between a layoff or a wage and benefit “adjustment” (reduction) in order to maintain the status quo.

Unfortunately there is nothing, short of a weak grievance, that can be used to counter such a move.  As a result there are some OPBA units who have been literally forced to give up the present value of portions of their contract while that contract is in full force in order to prevent a layoff.  And this is accomplished without Senate Bill 5!

As the Pendulum Swings

Observers of the economy know that markets sway back and forth and up and down, but usually in one direction until there is a bubble and bust causing the direction to reverse, but still in a back and forth and up and down direction.  When the overall direction of these markets reverse, one way or the other, some observers call this the swing of the pendulum.

The pendulum effect happens in virtually every market.  Markets like the housing market where properties gain value over time or lose value over time.  Same thing with the stock and money markets.

All of those markets, along with the “labor market”, swing back and forth over periods of time.  This effect is known and proven.  What is not known is how long these movements last and when they do actually reverse, at what pace and at what rate.

Right now the pendulum is obviously swinging in a direction that will be harmful to the interests of all law enforcement personnel.  This swing follows a fairly long stretch of a direction yielding nice gains in the wage and benefit areas.  This swing was created by the Great Recession which deflated property values, deleted jobs and reduced revenue to local governments.

Coinciding with the Great Recession and its monumental effect on governmental revenues is a swing in political attitudes.  This recession greatly influenced last fall’s elections to the point where anti-government politicians were elected.  Their lopsided victories left many of them with what they think is a “mandate” to reduce government.  In trying to accomplish that a new political and economic direction has been created, for sure.

Who knows how far such a negative direction will go or how long will it take to bust and reverse to the other direction.  It may last for a little while or it may last for half of your career but trust me the pendulum will one day swing back to a better and more prosperous direction.  The sooner, the better!!

by S. Randall Weltman, Esq.
The talk around the Ohio labor scene these days is, hands down, all about Governor John Kasich and the Republican dominated legislature.  To me, our new governor presents an interesting combination of a businessman turned politician, or is it the other way around?

Governor Kasich is, no doubt, a pro business Republican.  As a Republican, generally speaking, Kasich is not expected to be pro-union or even union neutral.  And generally speaking, most Republicans (including Kasich) do not favor unions and most unions do not favor Republicans (including Kasich).

If you check the Political Action Committee (PAC) funds of the big unions that donate money, like AFSCME, SEIU, UAW and the Steelworkers, they give most of their money to Democratic candidates.  They also supply enthusiastic bodies to engage in valuable grass root electoral efforts (like calling and knocking on doors to get out their voters).