Employer Changes Schedules Based on Business Need, Survives Past Practice Argument From Union

If there’s one thing we LOVE on this blog, it’s arbitration awards discussing how past practice is analyzed in a labor arbitration setting (yes, we’re not very cool).  Every arbitrator has a different way of looking at past practices, and it’s important to pay attention to how they can be applied in different situations.

In Teamsters Local 792 and Breathru Beverage Minnesota, the employer changed the scheduled working day for employees, based on its business needs and management rights.  Night shift employees were historically scheduled to work on the Wednesday before Thanksgiving.  However, in 2023, the employer introduced a new schedule that required them to work on Thanksgiving night.  Obviously, this did not sit well with the employees, or their union (could you imagine having to miss 9ers-Seahawks in the evening matchup??).  The union grieved, claiming a violation of the contract and an established past practice.

The union introduced records showing that from 2016-2022, the night crew worked the Wednesday before Thanksgiving and had the following day off.  One employee testified that that was the schedule for the last 30 years.  The employer introduced evidence that it could not have product sitting in trucks overnight due to lack of security and lack of insulation.

In his analysis of the contract and evidence, Arbitrator Stephen Befort found that the contract did not limit the scheduling of work for holidays, but did provide the discretion to the employer to change work schedules with two weeks’ notice to affected employees.  With that, he turned to the past practice argument of the employees.

The arbitrator found that while all of the elements of a past practice were met in the case, the practice did not override the terms of the parties’ CBA.  First, he found that a strong “zipper clause” existed in the contract that precluded any past practices.  Second, he found that factual circumstances underlying the practice changed significantly when the company changed work locations.  Third, and most importantly, the arbitrator found that the scheduling of shifts was reserved for management discretion through the contract’s management rights clause.

Having found that the union had not met its burden, the grievance was denied.  While this doesn’t appear to be that close of a case, the union was able to establish that a past practice existed.  With some arbitrators, that information could be enough to overcome strong management rights language.  If you, or your organization, need assistance with discipline or grievance arbitration, contact Wiley Reber Law, for arbitration representation that works.