FMLA Grievance

System · November 2002

A year ago we decided to have employees use up to half of their earned vacation towards FMLA leave. (The union shop committee was informed of the policy change then.) Our intent was to try and deter FMLA abuse which is a big problem in our "union-factory" town. Now, the union is filing a greivance. Seems like it is their "flavor of the month." Our Shop Chair read about it in his union provided book on FMLA. The book suggested filing a grievance based on past practice and vacation use language. Has anyone else had a grievance or arbitration on this issue? What was the outcome?

Whatever · November 2002

Never had a problem like this with our union. However, our contract states that the grievance has to be filed within 5 days of the event etc. Do you have a similar clause in your contract.

TPONE · November 2002

Yes we do. Good suggestion. I couldn't see that tree through the FMLA forest!

vmiller MO · November 2002

There is also an argument that you have established a "past practice" in this matter. Of course, I am assuming that you told the union/employees about this change a year ago and that you have actually applied your rule since then. It is always interesting to see how unions react to management utilizing "past practice" as a shield.

TPONE · November 2002

Yes, I have discussed past practice with them and the fact that in essence we had a mutual agreement, although verbal, with the prior committee. Past practice doesn't matter to the current committee, and must not matter much to the local either, as we are arbitrating 2 sections of our contract that has both language and practice well over 20 years! The new reps seem to have trouble working with what they refer to as the "Girl's Club," our new manufacturing manager and myself. ;;) We have had four abritrations this fall, and only 9 total in the prior 40 years! I want to make sure we are very solid before taking a disagreement to arbitration. This practice is new, since Jan. 2002; the practice of letting employees take vacation pretty much whenever they want to is much, much, longer. :-?

vmiller MO · November 2002

An oral agreement is enforceable. What you really are confronted with is a matter of proof. Obviously a written agreement is harder to deny. Nevertheless, oral agreement are enforceable, but as you now see the union can deny the agreement or claim that the agreement was something else. However, if you have followed this practice for a year (meaning you have had specific incidents, then your conduct supports the oral agreement.

Having said the above, it is important to look at the vacation language of the contract. If the practice or oral agreement is at odds with the contractual language on vacation, then the normal rules of contract interpretation would enforce the specific written language over an oral agreemetn.

I believe that you are correct. The union is testing the "girls club." I suggest that you:

1. Make sure that your positions are sound.

2. Don't be afraid of arbitration.

3. Use a court reporter for transcripts. This shows that you are serious and if the union wants a copy of the transcript, it costs them money. However, be advised that most arbitrators will require you to allow the union to read the transcript if they don't purchase one.

4. You may want to consider using an attorney in the arbitrations. Yes, this will cost you more money, but then the unioin will feel the need to use one and it will cost the union money.

5. Put oral understandings in writing. It has been my experience that many union representatives honor their word. However, recently I have seen a resurrence of Union stewards and business representatives taking the position that it is alright to say whatever is necessary to advance the union's cause. My axiom is "If it is an agreement, then we can put it in writing."

Good luck.

FMLA Grievance

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