KingSpry Good Intentions May Create a Binding Past Practice

No Good Deed Goes Unpunished When It Comes to Collective Bargaining Agreements – Good Intentions May Create a Binding Past Practice

Photo of Timothy E. Gilsbach

Posted on January 16th, 2018
by Timothy E. Gilsbach

In an interesting case that should be cautionary reminder for all employers who have a collective bargaining agreement (CBA), the Commonwealth Court found that an employer was bound by a past practice of permitting employees to have Christmas Eve or New Year’s Eve off, despite any language in the CBA that provided for the same.

In Lackawanna County v. Lackawanna Count Adult and Juvenile Probation and Domestic Relations Section Employees Association, No. 657 CD 2017 (Jan. 10, 2018), the CBA included a list of negotiated paid holidays that would be provided to employees, but it did not include Christmas Eve or New Year’s Eve.

Nonetheless, from 1998 to 2015, the employer provided a “gift day” to employees where half the employees would have Christmas Eve off and the other half would have New Year’s Eve off.  In 2015, the employer stopped providing the same and the union filed a grievance, claiming this was a past practice which the employer was bound to continue providing.

The Commonwealth Court agreed with the union that a past practice was created and, despite no language in the CBA that provided for the gift days, found they were a benefit the employees were entitled to. The Court found that the CBA did not include a broad integration clause and that there was nothing in the CBA that would prohibit the creation of this new benefit by past practice.

While the case is consistent with existing case law, it should serve as a warning to employers who have CBA’s to ensure that the CBA contains a strong integration clause or other provisions that would limit the ability to create new benefits by past practice or eliminate any past practices under prior CBA’s.  In addition, employers should take steps to avoid creating such past practices. Employers who want to be generous to their employees and provide additional benefits are best served by offering the same at the bargaining table or not at all.





The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice GroupJeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.