In Minnesota Department of Corrections, an Arbitrator ruled that various Unions failed to demonstrate a binding past practice of paying employees for misallocated overtime when the Employer made errors in overtime distribution.
This dispute involved a class action grievance brought by multiple affected Unions, alleging that the Minnesota Department of Corrections unilaterally changed their past practice of paying employees for the hours they would have worked when overtime was incorrectly allocated. Although the parties’ CBA was clear on how overtime should be allocated, it was silent on how to address situations when overtime had been incorrectly allocated.
The Unions offered testimony asserting that paying employees for missed overtime had been consistent past practice, including undisputed testimony that payment for missed overtime had been going on for “at least the past 20 years.”
The Employer disputed this, noting that overtime distribution errors are consistently resolved through the grievance process on a case-by-case basis. While this did lead to agreements to pay employees for missed overtime, it also was settled with agreements allowing employees to pick future regular or overtime shifts of their choice.
The Arbitrator sided with the Employer, noting the lack of consistency in addressing these situations. Proving a past practice requires strong evidence of its uniformity for it to be considered an implied term of a contract, which the Unions failed to demonstrate. This quote best summarizes the Arbitrator’s reasoning:
“The hearing record shows that overtime distribution errors are resolved through the grievance process and has been resolved in a number of different ways over the past twenty years. The union failed to introduce any evidence to counter this fact.”
Thus, the Arbitrator denied the class action grievance and left it to the parties to resolve the issue through the bargaining process.
This arbitration decision is a bit of a head scratcher in that the arbitrator bypassed at least two cardinal labor law concepts in reaching the result. It seems as if he “punted” instead of resolving the dispute.
While the union believed that remedy for missed overtime that it sought here had been granted in the past, the employer argued that negotiated resolutions for individual settlements. But individual grievances cannot bypass the terms of the CBA.
Further, arbitrators have the inherent authority to issue an appropriate remedy for a contract violation. It appears that the union tired of having to negotiate each breach of the contract and wanted the contract enforced. By dismissing the grievance and telling the parties to “negotiate” a remedy for each violation, this decision seems to bypass the binding arbitration process the parties had already negotiated for.
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