The Key Elements of Past Practice

The City of Easton, Pennsylvania and Lodge 17 of the Fraternal Order of Police are parties to a collective bargaining agreement. On October 21, 2022, Lodge 17 filed an unfair labor practice charge with the Pennsylvania Labor Relations Board against the City. The Lodge alleged that the City had failed to bargain in good faith by implementing a new policy eliminating the past practice of employees being permitted to use sick leave while on FMLA leave for the birth of a child.

The City first argued that the underlying issue – whether sick leave could be used for ‘baby bonding’ time – was not mandatory for bargaining. A hearing officer for the Board disagreed, noting that “the Board found that employee use of sick leave during FMLA absences is a mandatory subject of bargaining.”

The City then argued that no past practice had been created. Again, the Hearing Officer disagreed, observing that “a custom or practice is not something which arises simply because a given course of conduct has been pursued by management or the employees on one or more occasions. A custom or a practice is a usage evolved as a normal reaction to a recurring type of situation. It must be shown to be the accepted course of conduct characteristically repeated in response to the given set of underlying circumstances. This is not to say that the course of conduct must be accepted in the sense of both parties having agreed to it, but rather that it must be accepted in the sense of being regarded by the men involved as the normal and proper response to underlying circumstances presented.

“Here, the record shows that the practice existed for four years and con­tinued unabated into the term of the parties’ current CBA. The Board has long held that a practice which continues unabated into the term of a new contract remains binding, regardless of the presence of an integration or waiver clause in the contract. As a result, the City committed an unfair labor practice by unilaterally implementing a new policy on October 3, 2022, which eliminated the practice of allowing officers to use paid sick leave for the birth of a child.”

The City next contended that that there was no past practice because the non-bargaining unit managerial police personnel, who permitted the use of paid sick leave in this fashion, are also members of the FOP, and therefore “broth­ers” of the bargaining unit officers. The Hearing Officer found this contention “equally untenable. The record shows that the Captains and Lieutenants are excluded from the bargaining unit as managerial employees. As a result, those officers are also agents of the City, who knew and approved of the practice that spanned a number of years and multiple contracts. The Board has held that a public employer commits an unfair practice by unilaterally changing a past practice of which its agents are aware.

“The City also maintains that the charge should be dismissed because the CBA precludes the use of paid sick leave for paternity leave in connection with the birth of a child. However, the CBA is silent on the issue of paid sick leave in connection with paternity leave for the birth of a child. The CBA does not specifically authorize such leave or preclude it. The sick leave article does provide that the purpose of sick leave is protecting employees from financial loss resulting from lost wages due to incapacitation from illness or injury or to incapacitation due to pregnancy and confinement.

“It cannot be seriously contended that this provision expressly forbids the use of paid sick leave for FMLA-qual­ifying events, such as illness, injury, or pregnancy to care for a family mem­ber. Indeed, there is no requirement whatsoever that such illness, injury, or pregnancy must be for the employees themselves. Certainly, the employees can suffer financial loss resulting from lost wages due to a need to care for a sick, injured, or pregnant family member.

“Because the CBA here is silent and therefore ambiguous regarding the use of paid sick leave for the birth of a child, then the parties’ past practice of allowing the use of such leave for several years is appropriate to determine the existing terms and conditions of employment. What is more, even if the CBA could somehow be read as prohibiting the use of paid sick leave under these circum­stances, as alleged by the City, the parties’ established practice of permitting the use of such leave for several years unabated into the term of the new CBA demon­strates that such an alleged provision has been waived by the parties.”

City of Easton, 55 PPER ¶ 3 (Penn. LRB Hear. Off. 2023).

This article appears in the September 2023 issue of our monthly newsletter, Public Safety Labor News.

Also in the September 2023 issue:

  • Employer Liability For Coworker Sexual Harassment
  • Agreement To Recitation Of Facts Not A Guilty Plea
  • Police Officer’s Criticism Of Chief Not Protected Speech
  • Charges Dismissed After State Fails To Prove That Garrity Material Was Not Used In Criminal Investigation
  • Transfer To Rotating Shift Not ‘Adverse Action’
  • Union Should Have Sought Clarification Of Award From Arbitrator
  • Opening Food Door To Cell Did Not Cause ‘Accidental’ Injury
  • Officer’s Suit Against BLM Protest Organizer Allowed To Proceed
  • Corrections Lieutenant Loses Job Because Of Social Media Posts
Recent Articles From Public Safety Labor News

Become an LRIS Premium Subscriber

Get access to each article from our monthly newsletter, access to the newsletter archives, and more benefits.