UFCW 1445 and Attorney Al Gordon O'Connell Uphold Seniority Bidding Rights at Gorton's

While past practice can often be a good tool to demonstrate the meaning of a contract, the Employer in this case learned that you actually have to prove the existence of the practice in order to win. Since the Employer had no actual evidence of a consistent practice, UFCW Local 1445 succeeded in enforcing the otherwise clear contractual seniority language. Pyle Rome attorney Al Gordon O'Connell prosecuted the case for the Union.

In the contract between UFCW Local 1445 and Gorton's, employees are chosen for open bids by bargaining unit seniority. Here, a senior employee voluntarily demoted from a highly classified palletizer position on first shift to a lower classified position on third shift and then, a few months later, bid for the third-shift palletizer opening. The Company refused to honor the bid, contending that there was a past practice of a one-year waiting period for employees to bid back into a position after giving it up. While the Company suggested that "everyone knew" of the practice, it failed to put on evidence of a single time it had happened.

This case stands as a reminder to both Unions and Employers that they must produce sufficient evidence of a longstanding, clear and mutually accepted practice in order to enforce such a practice in arbitration.