Arbitrator Sustains Grievance Over Change In Vacation Advances Even Without Specific Contract Language

What happens when an employer changes a long-standing past practice that is not covered by the collective bargaining agreement? You can certainly file an unfair labor practice charge with the National Labor Relations Board (NLRB) alleging that the employer failed to bargain in good faith, but sometimes you can also succeed in arbitrating a grievance over the matter. When Vulcan Tools eliminated a decades-long practice of providing vacation advances, USW Local 9432-1 filed a grievance over the change, and on May 26, 2023, an arbitrator held that the Company had indeed violated the contract by curtailing the practice. Pyle Rome attorney Al Gordon O'Connell arbitrated the case for the Union.

In ruling that the Company violated the contract, the arbitrator first determined that the long-standing practice -- having existed for many years with the consent of both the Union and the Company -- amounted to an "implied contractual provision" that constituted a "separate and binding obligation" even though it did not appear in the contract. Importantly, the arbitrator also determined that the Company violated the contractual recognition clause, holding that the Union's status as "exclusive bargaining agent" meant that the Company violated the contract when it changed conditions of employment without bargaining.

Because many contracts contain provisions prohibiting an arbitrator from considering matters outside the four corners of the agreement, it is often advantageous to file an unfair labor practice charge in addition to a grievance in these types of cases. The unfair labor practice charge would likely be deferred to arbitration in any event, giving the arbitrator the power to consider the change in practice regardless of the contract language. And should the arbitrator determine that they are without the power to rule on the matter, it would be returned to the labor board for consideration.