One Occasion Does Not A Past Practice Make

Written on 08/07/2021
Will Aitchison

Local 1404 of the IAFF represents firefighters working for the City of Norwich, New York. Prior to the 2003-2004 collective bargaining agreement between Local 1404 and the City, retirees did not contribute towards their receipt of retiree health insurance benefits. In the 2003-2004 collective bargaining agreement, Local 1404 and the City agreed that retirees would pay percentage contributions toward health insurance.

Two firefighters who retired in 2013 were on the City’s single health insurance plan. When one of the firefighters requested to change to the family plan after his retirement, the City granted his request. However, when the second firefighter made the same request six years later, the City denied the request, citing the results of a recent audit which concluded that firefighters should not be permitted to switch coverage after their date of retirement.

An administrative law judge for New York’s Public Employment Relations Board recommended the rejection of Local 1404’s unfair labor practice complaint alleging that the City was obliged to bargain before changing the past practice of allowing post-retirement changes in health insurance plans. The ALJ had no difficulty with the proposition that post-retirement health care benefits were mandatory for bargaining, he concluded that Local 1404 was unable to establish the necessary past practice to trigger the City’s bargaining obligation.

The ALJ ruled, “In this case, the record establishes only one retiree had been permitted to switch from a single to a family health insurance plan in retirement. Because Local 1404 failed to establish that the practice it alleges occurred on more than one occasion, I cannot conclude that it is unequivocal.

“Furthermore, although Local 1404 has presented testimony that the retiree and then-Local 1404 President met with the City’s HR Director in May of 2013 and were advised that the City’s policy permitted the retiree to switch from single to family health insurance after he retired, as of the date of their discussion, no retiree had yet done so. The HR Director’s recitation of the City’s then-policy, by itself, is not adequate to establish a past practice.

“There is no evidence to establish that the policy was otherwise unequivocal and had continued uninterrupted for a sufficient period of time. Thus, I cannot conclude that it was reasonable under the circumstances presented for bargaining unit members to expect that the at-issue policy would continue.”

Norwich Firefighters Association, 54 PERB ¶ 4520 (NY PERB ALJ 2021).

The post One Occasion Does Not A Past Practice Make appeared first on Labor Relations Information System.