Topics included on this page:
Weingarten Rights - Request for
a Shop Steward
If you are called into a meeting with a management
representative and you have reason to believe that disciplinary action
against you may result, you have the right to have a steward present
during this meeting. Read the statement below to the management representative,
and contact your steward immediately.
READ THIS STATEMENT TO MANAGEMENT:
“If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I request that my union representative, officer, or steward be present at the meeting. Without representation, I choose not to answer any question.
“This is my right under a U.S. Supreme Court decision called Weingarten.”
Past Practice
Past practice is a much-misunderstood aspect of grievances. Most members
think if the company has maintained any practice or policy that it
violates the contract if they make a change. This assumption is far
from the truth. In fact, past practice grievances are probably the
hardest for us to win.
Evidence of custom and past practice can be used for the following purposes:
- To enforce rules or policies not included in the written contract (there is no contract section to cite).
- To help interpret ambiguous contract language (we use practice as part of our evidence to support a grievance where we can cite a contract section that has been violated).
- To support an argument that clear contract language has been changed by mutual agreement (the practice is different from specific contract language).
While the Employer has the burden of proof in discipline cases, the grieving party has the burden of proof in past practice cases.
The remainder of this outline focuses on the difficulty of proving past practice where there is no contract language.
In the absence of a written agreement, we must be able to prove the practice is:
- Unequivocal (Black’s Law Dictionary definition: clear; plain; free from uncertainty or doubt).
- Clearly described and acted upon by management and employees.
- Mutually accepted by both parties.
What types of things are generally found to be binding past practice and what types of things are not? Generally, it comes down to exercise of management discretion in the day-to-day operation of the business v. a benefit of value to employees.
Arbitrators generally recognize the authority of management to control methods of operation and to direct the workforce, and to make changes in these areas, PROVIDED the changes do not violate a right of the employees under the written contract. Examples: determining the number of employees needed on a job; adding or eliminating job duties; not filling a vacancy, changing time cards, changing payday. In these areas, management should notify the Union and negotiate if requested, but, if negotiations fail, management may unilaterally implement.
Types of past practice where arbitrators have found past practice to be binding generally involve benefits given to employees that have value. Examples: discontinuing wash up periods, providing paid work breaks, free coffee or meals, discounts, non-contractual bonuses.
The key element is mutuality. We have to be able to prove that there was a meeting of the minds: that the parties have had actual or implied agreement. We look at how many employees are affected; how long as the benefit been in existence; how often have employees relied on it. The Union relies on past practices in forming contract proposals. “If it ain’t broke, don’t fix it.” If the benefit is major, is verifiable, and has been in existence for some time, and we rely on the practice in forming our contract proposals, we have an excellent chance of getting an arbitrator to enforce it.