No good deed goes unpunished, or so the old saying goes. And employers who are unaware of the concept of “past practice” soon learn the meaning of this expression. Recently a Connecticut Superior Court decision, which upheld the decision of the State Board of Labor Relations, affirmed how a past practice on the part of an employer can create a non-bargained benefit for its employees.
A Teachers’ Union filed a complaint with the State Board of Labor Relations after a teacher’s request for use of sick days from a “sick bank” was denied. The Union claimed a unilateral change to a mandatory subject of bargaining in violation of the Teacher Negotiation Act. Specifically, the Labor Board found that the practice of donated sick leave to a sick bank and the ability of a teacher to use this time upon exhaustion of their own sick leave was a benefit that had been established by past practice, despite the fact that the collective bargaining agreement contained no reference to a sick bank. In response, the Board of Education appealed the decision of the Labor Board.
In upholding the decision of the Labor Board, the Superior Court cited evidence of what the Court described as a “clearly enunciated and consistent” practice. It noted the findings of the Labor Board of the existence of a ten year practice of teachers being able to access additional sick days from a donated sick bank. Specifically, it found that six teachers during this time period, who had exhausted their sick leave, were able to utilize sick leave donated by other teachers with the knowledge of the Superintendent of Schools. In addition, the Court noted that the process in place did not indicate that management exercised any discretion in the granting of donated sick leave to any of these individual teachers.
The Court came to this conclusion despite, in its words, the lack of written evidence of the features of the sick bank policy, or the fact that the parameters of this unwritten sick bank policy was more generous than similar plans contained in collective bargaining agreements across the state, and did not “negate its existence as an established practice.” In sum, the Court would not substitute its judgment for that of the Labor Board, and upheld the finding that the practice over a ten year period was sufficient to make a virtually unlimited and undefined sick bank benefit an employee benefit, despite the fact that it was neither bargained for nor contained in a memorandum or the collective bargaining agreement.
This decision should serve as a reminder that decisions to extend a temporary or one-time benefit to an employee or employees should be undertaken with care, with an understanding and agreement that the benefit is only a one-time benefit and not evidence of some ongoing practice. This is not a warning to avoid all good deeds, but to take care that these good deeds be carefully considered and memorialized, lest a school district’s good intention be punished as a permanent, ill-considered practice.