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Past practice and the reversion defense

Past practice and the reversion defense
Local 891, International Union Of Operating Engineers, AFL-CIO and Board Of Education of The City School District of The City Of New York, PERB U-27711, ALJ Cacavas

The term ?reversion defense? is used to describe the argument that once the parties reach an agreement on the item involved, the agreement rather than any past practice or other terms or conditions concerning that item controls.

A PERB Administrative Law Judge held that where evidence establishes a practice of allowing employees to book out of their shifts on blood donation days, without any limitation on the hours taken, the employer violated the Act by prospectively enforcing a ten year old policy which contained such a limitation, but had never been enforced.

Here the collectively negotiated agreement was not specific to the action charged. Accordingly the reversion defense* is inapplicable. Similarly, an employer may not "revert" to a unilaterally adopted policy or rule.

ALJ Cacavas noted that the Board has recently overruled prior decisions that allowed an employer to defend the alteration of a past practice on the basis that high-level managers lacked knowledge of it and thereby acquiesced in it. On a subsection (a) violation, where there was no evidence or argument offered to support the bare allegation, the cause of action fails.

Similarly, actions referenced in the parties' post hearing arguments, but not pled in the charge or any amendment thereto, will not form the basis for the finding of a violation.

Full post as published by New York Public Personnel Law on February 09, 2010 (boomark / email).