Understanding and Defending Past Practices

— David Cohen

Stewards need to know what a valid past practice is and what the past practices in their workplace are—to defend them from erosion by management. A past practice is any longstanding, frequent practice that is accepted and known by both union and management. Bona fide past practices are considered part of the contract, so grievances can be filed if management violates them. Be sure to check your contract for language that limits their use for grievances. In most cases management cannot end a past practice without first bargaining with the union. In some cases management must wait until contract negotiations to change a past practice.

There are three categories:

• Contract-clarifying past practice, the strongest type. When contract language is vague or general, the practice clarifies the general language. For instance: Contract language reads, “The company will allow union stewards reasonable time off to attend union meetings.” For many years the company has allowed stewards to attend monthly union meetings and three times a year the district council meeting. This practice now clarifies and backs up what the contract means by “reasonable.”

  With such a strong past practice, an employer must bargain to change it and cannot change it if the union doesn’t agree.

• Independent past practice, not addressed by any contract language. Most often these are “benefits” that workers take for granted and so were not included in the contract.

  Example: There have always been vending machines in the cafeteria and free parking in the company lot. Management cannot just do away with these benefits.

  Management can terminate independent past practices under three conditions:

  It can prove the original conditions that started the practice have changed significantly.

  It can prove significant ongoing employee abuse of the practice.

  It notifies the union during contract negotiations that it will end the practice during the next contract.

  Even in the first two situations, the employer must bargain with the union before ending the practice.

  Most arbitrators will not extend these past practice rights to work methods.

  An example: Management wants workers to run three machines instead of two, claiming new technology makes them easier to run. The union probably cannot claim it is a past practice that workers run only two machines. However, the union can demand that management bargain over a change in working conditions.

• Contract-conflicting past practice. These are the hardest to prove, with most arbitrators saying the contract should prevail. However, the arbitrator may rule in favor of practices that have existed for a long time, happen frequently, clearly conflict with the contract, and were clearly known to both parties.

  For instance: The employer has never given union reps absentee “points” for attending union conventions, even though there are no such provisions in the contract. For 10 years, the union has notified management each time who would be attending. Although the practice conflicts with the contract, it probably would be considered valid.

  The employer must notify the union of its intent to end this type of past practice and must bargain if the union requests.

The tests for a valid past practice are:

• Has existed for a reasonably long time. The longer a practice has been in effect, the more weight it carries. Many arbitrators think that a practice must be three to five years old and must have been in practice during at least two contracts.

• Occurs repeatedly, the more times the better. An exception might occur around a holiday. If every year for seven years management allows workers to go home early Christmas Eve, this could be a valid past practice.

• Is clear and consistent, repeated the same way each time. If there are minor deviations, there must be at least a predominant pattern of consistency. An example: Management has always let workers accept personal phone calls. The union can document 100 times in the last five years. Management points out three occasions where workers were refused the right. The overwhelming pattern favors the union.

• Must be known to both management and union. While a past practice does not have to be “negotiated,” it must be something that both parties know about. Sometimes it’s not good enough for a low-level foreman to know; it must be higher management. For instance: Workers have been leaving work a little early on Fridays for years. According to the absentee program, they should receive one point, but the foreman never gives points for Friday. Upper management finds out and decides to give everybody warnings. Management did not inform the union that it wanted to change the practice. However, since upper management did not know about this practice, it would be hard to argue that workers could continue to leave work early every Friday.

• Must be accepted by both management and union. Often the fact that a practice occurs frequently over a long period of time indicates that the parties agree to it. A practice that is openly agreed to by both parties gains past practice status quicker than one that is not openly accepted.

An example: For many years workers have been allowed to line up at the time clock after the first bell rings, signifying five minutes till quitting time. A new boss says no one can line up till the quitting bell rings. The union has a strong case: the fact that management never did anything to stop this practice indicates acceptance.

When filing a grievance, gather plenty of evidence on how long and how frequently the practice took place, and how the employer knew about it. The more, the better.

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David Cohen is an international rep, United Electrical Workers

This article is based on attorney Robert Schwartz’s book, How to Win Past Practice Grievances. It can be ordered from Work Rights Press.

Auto Workers Told to Take Concessions, Abandon Retirees

— Tiffany Ten Eyck

President George Bush announced December 19 a $17.4 billion dollar bridge loan for General Motors and Chrysler, a day after it hinted that the companies could be forced into “orderly” bankruptcy.

Auto workers who advocated for short-term aid to the auto industry’s crisis bristled at the conditions attached to the loan. The Bush administration's requirements mirror demands from anti-union Republicans who torpedoed Congressional action last week. They would decimate UAW contracts and place retiree health care funds into company stock.

The plan hinges on a demand that UAW auto worker wages and work rules become “competitive” with wages and work rules in foreign-owned, non-union transplant factories in the South.

Lost in the discussion, auto workers said, is any recognition that wages and benefits are less than 10 percent of the cost of a vehicle and can’t pull the Big 3 back to profitability.

“We've already taken concessions to help the industry become viable,” said Brett Talbot-Ward, a UAW Local 1700 member who works at Chrysler’s Sterling Heights Assembly plant. “Why are they asking for more from us when there are all sorts of other costs in the vehicle production process, much less the CEO pay, that haven’t even factored into the debate?”

Bush’s terms will eliminate the jobs bank, a concession the UAW signaled it would accept two weeks ago. The program gives laid-off workers income and sends them into communities to provide public services. Foreign-owned auto firms have similar programs, and often use production downtime to train workers.

"The jobs bank was our safety net," Talbot-Ward said. "That in and of itself is a huge sacrifice, when we know that there will be a huge amount of safety needed."

Chrysler announced plans this week to suspend all production for a month, two weeks longer than its usual holiday break.

The bridge loan calls for auto retirees to sink half of their retiree health care fund, the UAW-administered Voluntary Employee Beneficiary Association, into company stock. Auto workers questioned the wisdom of putting the remaining VEBA payments into stock, having watched GM’s stock plunge from $29 a share in February to $2.79 by November.

“It’s not worth the paper it’s printed on,” said Tom Brown, a member of UAW Local 600 who works at the Ford Dearborn Truck Plant. “They're going to attack the retirees badly on this one.”

The VEBA began as an underfunded vehicle: financial analysts predicted at its outset that General Motors was only willing or able to offer less than $35 billion of the estimated $50 billion that it owes retired workers.

The under-funding could lead to a simple, grim arithmetic: each dollar shortchanged translates into a dollar that can’t be spent on health care premiums, co-pays, deductibles, or quality of care. Under a VEBA, the remaining costs of maintaining health care benefits will have to be shifted back to the workers themselves.

“I don’t think the rank and file will go for it—to bring our wages down, to put our benefits into (company) stock, that’ll be too risky,” said Tony Browning, UAW Local 1700 member at Chrysler’s Sterling Heights Assembly.

Browning said that his fellow union members are well aware that non-union auto workers make similar wages, and predicted that UAW leaders will have a tough sell convincing workers to take yet another round of concessions.

RELENTLESS ATTACKS ON UNION

The deal proves President George Bush is ready to extract from auto workers what Republican senators were unable to secure last week, when they blocked a $14 billion loan package for the industry over demands to cut wages and benefits for unionized auto workers and retirees.

Republicans refused to hand over the loan without promises of even more UAW concessions. Republicans, apparently expert enough about auto to renegotiate contracts in a matter of hours, blamed the UAW for refusing to drive down wages to parity with non-union, foreign-owned auto facilities in the South by next year.

Auto workers, of course, already agreed to similar concessions in November 2007, when they voted up contracts that put starting wages lower than those in non-union plants. The major cost difference between non-union and union auto makers in the U.S. is not wages but retiree benefits, particularly health care costs. In demanding that the UAW reduce costs to the auto makers, the Republicans were insisting that more than a million auto retirees—40 percent of whom are not yet eligible for Medicare—put their health care coverage at risk.

The UAW made a last-ditch effort to save the bridge loan and placate viciously anti-union Southern senators. That wasn’t enough for Republicans, who—along with four Democrats—voted down the bill.

“It’s part of the right-wing agenda to do away with unions or to severely cripple any kind of labor struggle in this country,” Talbot-Ward said. “Or maybe it’s a little payback for union support of the Obama campaign.”

Fast disappearing is an era when workers on assembly lines can afford to buy the vehicles they make. When the UAW agreed to a mid-contract opener in 2005, and a 2007 agreement that lowered new-hire wages to $14.50 an hour, the union struggled to squeak out approval from an angry (and increasingly financially unstable) membership.

BLAMING THE WORKERS

UAW President Ron Gettelfinger himself later said his decision to negotiate with a lone Republican senator was a mistake, especially when the whole pantomime seemed like a warm-up act for Republican opposition to the card-check bill, the Employee Free Choice Act. But the administration’s insistence on linking the bridge loan to wage cuts angered auto workers even more.

Jim Theisen, a member of UAW Local 212 who joined the auto worker caravan to D.C., said the caravan brought the message to Capitol Hill that rank-and-file wages aren’t the industry’s problem, and that cutting union wages harms everyone.

“Our Southern brothers and sisters don’t get $24 an hour out of the kindness of the auto owners’ hearts,” he said. “If there wasn’t a union in the North they’d be getting $10 an hour.”

Smithfield Meatpackers Stay Off Work To Demand Martin Luther King Holiday

— William Johnson

21 immigrant meatpackers were arrested by Immigration and Customs Enforcement (ICE) officers January 24 at the Smithfield Foods plant in Tar Heel, North Carolina. ICE spokespeople told the Associated Press that workers were arrested on “administrative immigration charges,” but United Food and Commercial Workers (UFCW) organizer Eduardo Peña, who’s been organizing at the plant for more than four years, believes the ICE raid was an act of retaliation. To learn more about the Smithfield workers’ struggle, go to Justice at Smithfield.

Hundreds of meatpackers from the Smithfield Foods hog processing plant in Tar Heel, North Carolina honored Martin Luther King Jr. Day at a January 15 rally in nearby Fayetteville, where they lambasted the company for its refusal to give workers the holiday off.

Smithfield’s 5,000 Tar Heel workers, the majority of whom are Black and Latino, have been trying to organize into the United Food and Commercial Workers (UFCW) since the early 1990s. The company has responded with, in the words of one federal court ruling, “intense and widespread coercion”: retaliatory firings, intimidation, and beatings by plant security.

According to UFCW organizer Eduardo Peña, support for Smithfield workers at the Fayetteville rally was “overwhelming.” Some 700 people attended the rally, where community and religious leaders attacked Smithfield for its treatment of the Tar Heel workers, while many workers made the connection between their struggle and Dr. King’s legacy.

“He died for the workers,” Smithfield worker Johnnie Davis told the Associated Press, referring to King’s involvement with a Memphis sanitation workers strike at the time of his assassination. “He died for us.”

In early January, 4,000 workers at the Tar Heel plant signed a petition requesting a paid holiday on Martin Luther King Jr. Day, which is recognized as a state holiday in North Carolina. When they presented the petition to Smithfield Vice President Larry Johnson on January 9, he refused to accept it.

According to Smithfield worker Keith Ludlum, the company explained its refusal in part by noting that workers were recently allowed to vote on whether they could have a paid holiday for Martin Luther King Day or Easter. The workers chose Easter, but Ludlum said that the vote left a bad taste in his mouth.

“What we’re telling the company,” said Ludlum, “is they’re asking us to choose between Jesus and Martin Luther King. We think they’re both important and we should honor both of them.”

Ludlum said that Tar Heel workers were “extremely upset” that Smithfield refused to even consider the petition. According to Ludlum, “It got a lot of workers saying they’re not going to show up for work, or that they’ll show up, get the line started, get some hogs killed and hanging, and then walk out.”

BRIDGING THE DIVIDE

Campaigning around Martin Luther King Day allowed UFCW organizers to tackle one of their biggest obstacles: the divide between Tar Heel’s Black and Latino workers. Last spring, when immigrants rallied across the country demanding fair immigration reform, many of Smithfield’s Latino workers walked off the job in solidarity, while most Black workers remained at work.

Ludlum explained that the vote to choose between Easter and Martin Luther King Day reflected, and exploited, those divisions: “A majority of the workers at the plant were Latino and immigrant, they didn’t know the history of Martin Luther King, but of course they know what Easter is.”

To bridge the Black/Latino divide, Smithfield workers organized an educational campaign during the lead-up to Martin Luther King Day. Said Ludlum, “We’ve been passing out flyers in Spanish explaining the history of Dr. King, the fact that he fought for all people, that when he took the bullet he was supporting sanitation workers in Memphis who wanted to be treated with respect.”

According to Eduardo Peña, who’s been organizing in Tar Heel for more than four years, the educational work paid off. Said Peña: “We’ve got Latino workers here ready to walk out for the holiday. I hear them saying things like, ‘People assume that we don’t know who King was—his struggle was the same struggle we’re going through now.’”

COMPANY RESPONSE

As buzz about the Martin Luther King Day walkout spread, Smithfield announced January 11 that workers who took the holiday off could be fired. “Some of the workers were intimidated,” said Peña. “The company publicly threatened them—in the media, with a press release.”

Peña said management also pressured workers individually to come to work on the holiday. Said Peña, “They targeted senior workers, people who already had points against them, told them, ‘If you go out, you’ll most likely lose your job.’”

According to Peña, Smithfield also went after recent hires, telling them flatly, ‘If you walk out, you’re fired.’

The threat of retaliation had convinced many workers who signed the original petition to show up for work on the holiday. Despite that, the union estimates that between 400-500 workers didn’t work on Martin Luther King Day, with many of them heading to Fayetteville for the rally.

SLOWING THE LINES

In the plant, the walkout had a serious impact. According to Peña, first-shift production was dramatically reduced, while some managers had to work until midnight to meet production goals.

Said Peña, “In this type of facility, just a few workers missing has a big impact. If you’re working one of those specialized jobs and you don’t show up, everything slows down. In some departments, dozens of people were missing [on the holiday] and the lines were moving very, very slow.”

When workers returned to the plant, they found the company had backed down from its threats of disciplinary action. Management posted an announcement saying that there would be no retaliation against workers who walked out.

Said Peña, “Workers that ended up working [on the holiday] are very angry…we told them, ‘If we stick together, the company doesn’t have the ability to discipline us.’”

Peña said that by backing down from its threats, Smithfield has also given the union more credibility. “The company is making it easier for us to do our work,” he explained. “We’re telling workers, ‘See, the company only responds to action. We can’t win by negotiating, we win by walking out, by taking action.’ And it’s working.”

Beyond affecting production, Peña said that the workplace education around Martin Luther King Day could have a lasting impact. “You don’t build African-American/Latino unity by doing a flyer or coming up with a catchy phrase,” he said. “You do it by educating workers and letting them decide what they’re going to do.”

Peña believes that the walkout, and the Smithfield plant’s legacy of militant action, is laying the foundation for a strong union in Tar Heel.

“This local union will be established with a history of struggle,” said Peña. “When the bargaining committee sits down with the company, there won’t be any question in the company’s mind of whether the union will be militant—they’ve already seen walkouts, demonstrations.

Peña concluded: “Nothing’s been easy here. There won’t be any secret ballot election to win the union. It’s a question of whether the workers want to fight for it or not. That’s why the company is so afraid. That’s what’s going to make it so sweet.”

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