Past Practice Rules in Safety Shoe Arbitration

This article originally appeared in Standing Strong at Solvay: May 2018.

When management at Solvay’s Chicago Heights plant reinterpreted contract language regarding safety shoe reimbursement and unilaterally implemented its new policy, Local 7-765-01 filed a grievance, an unfair labor practice (ULP) charge and took the case to arbitration.

The local won.

The contract language for over 20 years stated: “Safety Shoes. The Company will provide each employee with up to $300 each year for the purchase of Company approved safety shoes.”

In testimony before the arbitrator, the local said that Solvay and its predecessor, Rhodia, Inc., included a safety shoe allowance in workers’ paychecks for the full $300 amount after the anniversary date of the collective bargaining agreement (CBA) each year on Jan. 16. Employees did not need to obtain approval for their safety shoes.

The dispute began several days after Jan. 16, 2016 when the local asked the company when the shoe payment would be made. At the time, both parties were in contract negotiations and had extended the old contract. Management said the shoe and other “reimbursements” would be handled when a new CBA was settled.

The local filed a grievance on Jan. 26 because withholding the shoe payment would violate the existing agreement. It also filed a ULP with the National Labor Relations Board (NLRB).

It appeared to the local that the company was leveraging the safety shoe payment in order to apply pressure during negotiations for a new contract, and that it was going to unilaterally implement a change to the existing practice rather than negotiate over it.

The NLRB Region 13 director decided to let the arbitrator handle the ULP.

Solvay denied the grievance on Feb. 8, and the local modified it to demand that past practice be followed regarding payment for the safety shoes. The local also demanded that supervisors stop polling employees regarding their need for safety shoes.

Then, plant management said the safety shoe payment would be processed according to a modified procedure, HSE-1062. Employees would be reimbursed for their shoes, regardless of the pending negotiations, as long as they provided the name of the shoe manufacturer, the shoe type and its price plus tax. The local learned of this policy during the third step grievance meeting.

The company witness admitted to the arbitrator that even though HSE-1062 was not put into effect, Solvay followed it and did not share the policy with employees on a shared computer network. The company also admitted it never told the union prior to 2016 how it was going to handle the safety shoe payment from that point forward.

The union testified that Solvay’s implicit concern of employee “abuse” of the safety shoe reimbursement was unfounded and without facts to back it up.

Arbitrator Award

The arbitrator said that all the union witnesses confirmed the long-standing past practice of payment and that the company’s witness did not provide evidence contradicting this past practice.

The arbitrator also determined the company acted unilaterally when it changed the reimbursement policy without bargaining first with the union.

The local’s grievance was granted. The arbitrator ruled for continuation of the past practice with the exception that employees would be subject to discipline for wearing safety shoes that do not confirm to the standard adopted by the company. Lastly, Solvay had to cease and desist from implementing unilateral changes to the safety shoe provisions of the CBA.

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