1199SEIU Successfully Enforces Contract Against Hospital's Scheduling Policy

Where a union negotiates a term or benefit in a a collective bargaining agreement, an employer generally cannot change that benefit or even force a union to discuss a change prior to negotiations for a new contract. This rule promotes stability in labor relations, by preventing an employer from forcing a union to keep negotiating terms of employment. Attorney Betsy Ehrenberg persuaded a neutral arbitrator that 1199 SEIU United Healthcare Workers East-Massachusetts had the right to enforce contract language against Cape Cod Hospital's scheme to avoid paying benefits to beleaguered workers. In addition, Ehrenberg persuaded the arbitrator that the Union was not forced to litigate the issue at the time the Hospital implemented its policy. The award is useful for cases where a grievance doesn’t arise for several years after an employer's implementation of a policy or practice that violates a contract, and for the proposition that an employer cannot institute a policy or practice that effectively negates a clear contractual benefit.

In this case, the Union and Hospital agreed that certain employees who have their schedules changed repeatedly in a year are entitled to a premium or differential to compensate for the havoc and inconvenience caused by constant change. This "rotation differential" provision also encourages the Hospital to maintain stable schedules for employees. Stable schedules enable employees to have meaningful lives outside of work - so they can have reliable time with family, attend school and/or take a second job. A workplace without a union is much more likely to have erratic schedules.

The Hospital tried to get around this benefit during a shift reorganization by assigning certain employees to a matrix. The matrix identified a primary shift with optional alternative shift times. When the Hospital forced an employee to work other than his or her primary shift, the Hospital claimed the "rotation differential" was not triggered. The Hospital told the Union in advance about this new matrix but the Union strongly and repeatedly asserted that the Hospital remained bound to the "rotation differential" provision.

The Union did not file a grievance or ULP at this time, preferring to wait and see until the Hospital actually violated the contract. Upon discovering an instance three years later, the Union filed a grievance.

The Arbitrator agreed that the Union's grievance was timely and the Union did not waive its right to enforce the contract by not litigating the matter at the time the Hospital announced its matrix. He wrote, "It is a well established principle that 'the waiver of statutory and contractual rights by a union is not to be lightly inferred.'" He added that the Union's awareness of a dispute about contract interpretation is not enough, by itself, to indicate that the Union waived its rights. The Union's position here was strengthened by its repeated insistence that the Hospital apply "rotation differential" under the new schedule.

The Arbitrator also rejected claims that the Union effectively agreed with the Hospital's contention that the rotation differential did not apply to the new schedule.

The Arbitrator ordered the Hospital to pay the "rotation differential" retroactively to the Grievant.