Attorney Leah Barrault Wins Past Practice and Paid Leave Grievance for Woburn Firefighters.

In January 2013, an independent Arbitrator agreed with Local 791, International Association of Firefighters, that the City of Woburn violated the collective bargaining agreement when it stopped a decades-old practice allowing firefighters to accumulate personal leave. Leah M. Barrault, a partner of Pyle Rome Ehrenberg, PC, successfully represented the Association.

The collective bargaining agreement (CBA) negotiated by the City and the Association provides for two personal days each year, plus an extra one if employee uses no sick leave days during six months. The parties also agreed upon language that guarantees past practices not specified in the agreement will continue and remain enforceable through the grievance language. The CBA did not expressly discuss what happens to personal leave after a year.

Past practices can be enforced through a grievance, or used to interpret contract language, if a) the practices are relatively clear and consistent, existing over a significant period of time or repeating in a number of instances, b) known to the Union and the employer, and c) accepted by both parties (or at least not opposed by either). Here, the accumulation of personal leave over time met this standard. Since at least 1979, Woburn firefighters have been allowed to bank personal leave days to preserve for later use. In fact, Woburn Chiefs regularly advised new hires to bank their personal leave in case they ever become injured off duty while employed. The City unilaterally stopped this decades-long practice in 2012.

The City tried to dispute the “knowledge” element of the past practice standard, claiming it had no idea about the longstanding practice. The Arbitrator described this claim as “totally without merit.” He sided with the Association that the City’s actions violated the personal leave and past practice provisions of the agreement.

To remedy the City’s contract violations, the Arbitrator ordered the City to restore leave to the firefighters and pay retired firefighters for any personal or other leave time they lost as a result of the City’s actions.
This case demonstrates the benefits of documenting a past practice and using it to aggressively enforce contract language – either specific benefits or a past practice clause -- when an employer seeks to reduce benefits and wages for employees.