NEW YORK NURSE: October/November 2007

RNs at work

Q.: I know that if our employer violates the language of our collective bargaining agreement we can file a grievance. But what if we have a way of doing things at our facility that is not memorialized in the CBA? If the employer tries to change a particular practice, can we win a grievance or arbitration even though there is no language in the contract regarding the particular issue we want to grieve?

A.: It depends. You may be able to file what is called a ‘past practice’ grievance. An arbitrator would acknowledge that collective bargaining agreements cannot include every single enforceable workplace right. There are always going to be things that the parties, for whatever reason, did not include in the contract. In order to establish a valid past practice, it is helpful if you can show the following:

That the practice at issue has provided a benefit to employees.
That the conduct at issue is always the way employees (or managers) respond to a particular situation.
That this particular way of dealing with a specific situation has been in place for a long time and has often been repeated.
That both employees and management have been aware of and accepted that a particular situation is always dealt with in this way.
The practice is not in violation of the law.

Past practice is a complicated subject, and different arbitrators will apply different rules to determine whether or not an enforceable past practice exists. Nevertheless, if you can establish the above elements, you may be able to prevail in a grievance based on past practice.

Contact your NYSNA representatives to ensure that your rights are protected.

The NYSNA EGW Program receives many inquiries each month from members who have problems in their workplaces. If you have a question about labor relations at your facility, contact your NYSNA nursing representative. If you have a question you think should be featured in this column, send it to: RNs at Work, NYSNA, 120 Wall Street, 23rd Floor, New York, N.Y. 10005.