FMLA And Bargaining Agreement

hrquestion · November 2002

Bargaining member has filed step 3 grievance requesting to go to arbitration
regarding FMLA absences. His wife had a baby- we allowed him to utilize 80 hours of paid sick leave to run concurrently with FMLA. He wants more paid time off. Is trying to focus on past practice. Meanwhile we have new personnel policies in place (after his leave) that indicate that they are allowed 80 hours of paid sick leave and must take the remainder as vacation, personal holiday, or LWOP. It's a gamble- do you think that it is worth going to arbitration or should we just pay another 16 hours?

Down_the_Middle · November 2002

Unless your new policy has clear language to address the "interim people", I'd pay the 16 hours and save yourself the embarrassment at arbitration. I would think the arbitrator will eat you for lunch......

Don D · November 2002

[font size="1" color="#FF0000"]LAST EDITED ON 11-11-02 AT 12:35PM (CST)[/font][p]Not necessarily. An employer has a right to arbitrarily change, alter, adopt or discontinue its policies and work rules. If you did so thoughtfully and in accordance with your 'management rights clause', in writing with copies to the populace, posted the changes, started enforcing them effective with the change date and have enforced them consistently since that date and intend to do so moving forward, I think past practice is just that, past practice. How many others might you have to grandfather along under the old policies if you do so with this one? If arbitrators had us for lunch every time we changed policies, we would be fairly chewed up.

(edit) Or do I hear you saying that you did not post and publicize the new policy until AFTER his event? In that event, pay up.

vmiller MO · November 2002

There is a fundamental difference between FMLA in a non-union context and in an union context. The difference is that in the union context there are two statutes that you must consider--FMLA and the National Labor Relations Act (NLRA). These statutes are not mutually exclusive nor are they the same. The NLRA requires that you "bargain in good-faith" over mandatory subjects of bargainin with the union (bargaining agent) that the majority of your employees in an appropriate unit have selected. Since you have an union contract, then we must assume that you have a bargaining obligation under the NLRA. Certain aspects of FMLA fall within the "manadatory" subject of bargaining category. In addition, you have a contract that apparently governs medical leave and payment of wages while an employee is on medical leave. The mere fact that such a "provision" is a "past practice" does not mean that you can unilaterally change the practice at will. Under a NLRA analysis, if the past practice covers a mandatory subject of bargainin, then the NLRA requires good-faith bargaining before unilateral action. Since you already have a contract, you also are subject to the grievance and arbitration procedures of your agreement. A unilateral change of a past practice can be a violation of the collective bargaining agreement. Thus, it is possible to violate the NLRA and the contract at the same time. More than likely, however, the National Labor Relations Board will defer the processing of any charge to the contractual grievance and arbitration procedure.

In arbitration, arbitrators generally look to the contract language first and then to what is claimed as a past practice. Assuming that there is no specific contract language to the contrary, Arbitrators do up hold changes in past practice under certain circumstances. One of those circumstances is that the management has discussed, yes bargain, with the union BEFORE changing the past practice.

My advise to you is to consult with your Labor lawyer, not your corporate lawyer or employment lawyer on this issue. It is technical and you should have a thoroughly developed plan of action before making any changes.

LindaS · November 2002

I would tend to agree with the others. His leave was approved prior to changing the policy and if past practice allows for more than the 80 hours, this would probably fall into that area. Any future requests would fall under the new policy and past practice would not apply but an arbitrator would tend to side with the employee on this issue.

Good luck.

FMLA And Bargaining Agreement

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