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On Wednesday, Adam LaRoche announced his retirement from baseball because his son, Drake, who had accompanied him in the clubhouse every day last season, would no longer be permitted to do so by the White Sox in 2016. While there has been a lot of complaining about LaRoche and Kenny Williams for various reasons—some of them justified—when I learned about the change in White Sox policy, I thought of Justice William O. Douglas’s opinion in the Supreme Court’s case, United Steelworkers of America v. Warrior & Gulf Navigation, 363 U.S. 574 (1960), and how labor law treats conditions of employment that have ripened into established past practices. On Thursday, Tony Clark, Executive Director of the Major League Baseball Players Association (MLBPA) remarked that the Union was looking into whether it would file a grievance on the matter.

In Warrior & Gulf, one of the three Supreme Court cases that developed the scope and process for labor arbitration known as the Steelworkers Trilogy, Justice Douglas wrote, “the labor arbitrator's source of law is not confined to the express provisions of the contract, as the industrial common law—the past practice of the industry and the shop—is equally a part of the collective bargaining agreement although not expressed in it.”

A year later arbitrator Richard Mittenthal, at the urging of Archibald Cox, wrote the seminal treatise on past practice for the Michigan Law Review. He wrote, “past practice may serve to clarify, implement, and even amend contract language. But these are not its only functions. Sometimes an established practice is regarded as a distinct and binding condition of employment, one which cannot change without mutual consent of the parties.”

In order to prove that there is a past practice, the party claiming the practice exists must show that there is: clarity—the practice can be proven to exist; longevity, consistency, and repetition—the practice occurs regularly and not randomly over a period of time; and mutuality and acceptability—both parties know and accept the practice.

In the LaRoche situation, he reportedly brought his son into the clubhouse all season in 2015. Kenny Williams has been quoted as saying, “I just told him that he needed to dial it back, that’s all…. But the kid is there every day: in the clubhouse and on the field, during drills, everywhere.” That quote covers every prong of establishing the past practice. It happened all season, consistently and repeatedly, and not just due to lax supervision, but with the knowledge and acceptance of management. Williams obviously knew about Drake’s presence last year, but chose to accept it, rather than intervene at the time.

In NLRB v. Katz, 369 U.S. 736, (1962), the Supreme Court held that an employer's unilateral change in a subject matter within the scope of its duty to bargain over wages, hours, and other terms and conditions of employment amounted to an unfair labor practice, for it is a circumvention of the duty to bargain.

With this as the backdrop, I believe that LaRoche has a sustainable grievance against the White Sox for its prohibition of his son from the clubhouse. But, there is one thing that could override the establishment of a past practice: waiver. The National Labor Relations Board (NLRB) has held that either party can waive its right through clear and unmistakable waiver.

The Major League Baseball-MLBPA Collective Bargaining Agreement (CBA), Article XXII entitled Management Rights, states, “nothing in this Agreement shall be construed to restrict the rights of the Clubs to manage and direct their operations in any manner whatsoever except as specifically limited by the terms of this Agreement.”

Neither the NLRB nor an arbitrator would consider this contractual provision to be a clear and unmistakable waiver of the Union’s right to bargain. The right to manage has to do with the things that are not wages, hours, and other terms and conditions of employment, like the determination of products and the setting of prices. “Manage and direct” usually includes the right to hire, fire, layoff, and recall, things that all make more sense in a baseball setting. The right to direct is the assignment of work—what employees are to do. In baseball it’s who is going to start and at what position and where in the batting order and when they are going to be replaced in the game. These management rights are not things that waive the Union’s right to bargain over a change in the policy related to family access to the clubhouse.

The CBA, Article XXVII entitled Comprehensive Agreement, is what is commonly referred to as a zipper clause. It provides, “this Agreement represents a complete, full and final understanding on all bargainable subjects covering Players during the term of this Agreement, except such matters as may become bargainable pursuant to the reopener provisions of this Agreement” with exceptions provided for the Players Benefit Plan, the Joint Drug Prevention and Treatment Program, and dues check-off. It goes on to state, “All rights to bargain with one another concerning any subject whatsoever regarding Players for the duration of this Agreement are expressly waived by the Parties, except to the extent permitted in said Agreements and in the reopener provisions of this Agreement.”

Zipper clauses are only specifically enforced by arbitrators, the NLRB, and the Courts. The MLB-MLBPA zipper clause does not allow either party to negotiate new subjects during the term of the agreement. Obviously, either party may begin a discussion of a new subject and that could lead to mutual agreement, but neither party can compel the other to engage in bargaining over a new subject, even one within the duty to bargain.

In the LaRoche situation, it would only be considered a clear and unmistakable waiver if MLB and the MLBPA discussed the issue at the bargaining table and the Union yielded, so that there was no provision on the subject of family access to the clubhouse in the CBA.

Even if the zipper clause were intended to wipe the slate clean and eliminate past practices from the prior contract, it would not have served to eliminate the future re-creation of the same past practice under the new contract once all of the prongs were met to establish the past practice again.

Without knowing the bargaining history of the parties on this subject, it’s impossible to know whether this topic was fully discussed and explored and the Union consciously yielded its rights. My suspicion is that it did not.

The odd thing is how Tony Clark commented about the LaRoche situation. Andy McCullough of the LA Times reported Clark said, “the question becomes when a player makes a decision to retire, that means one thing. If there is a discipline involved, that means something different. We are 24 hours removed from everything that you are aware of. And I can suggest to you that we are likely aware of a little bit more, but aren’t in a position to suggest what tomorrow is going to look like, as a result of what happened yesterday.” I don’t see this as a discipline case. Moreover, if the Union pursues this as a constructive termination, it has a much more difficult case to prove, one that is nearly impossible.

Eugene Freedman is Special Counsel to the President for a national labor union.

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roarke
3/18
Is one season enough to establish past practice, especially if it was just with regards to one player? It seems reasonable that a team could have permitted the condition to exist for a season and upon review after the season determined that the situation wasn't working and decided to make a change. I'm not arguing for or against LaRoche or the White Sox, it just seems that one season of a condition may be too short a period of time to establish past practice.
eugenefreedman
3/18
The past practice was established by it happening game after game. While we think of seasons as discrete periods of time, you need to view it more like a workplace. Each game is another workday for the the purposes of proving the practice was continuing and repeated and not random in its occurrence.
roarke
3/18
So is the length of time required to establish past practice a 'facts and circumstances' type of thing? If the White Sox had intervened after a month or after two weeks would it have been soon enough? I get what you are saying about each game being a workday, but baseball is a different type of industry where each season *is* a discrete period of time and teams/players/organizations are judged by the success over a whole season. Policies and strategies are often changed during the offseason after a team has had an opportunity to evaluate the effects of things during a review of the past season. I still think it seems completely reasonable that a club should have the right to change a policy after a single season of allowing it, given that the offseason is a typical review time for the successes and failures of policy in the industry.
eugenefreedman
3/18
It is a facts and circumstances test, although I don't think anyone's exactly articulated it in that manner. If team management had intervened within a few games or even a couple weeks I think it would have not been an established past practice. Also, had they told him it was a problem and the conduct continued, it would have broken the mutuality of the activity.
Ryan13636
3/18
This is absurd, how many readers here can bring their kids to work each day? The White Sox should be thrilled to be rid of this albatross.
huztlers
3/18
The readers here and Adam LaRoche likely have nothing in common in regard to their work environments. I don't think playing in the big leagues and pushing papers or driving a cab are quite the same thing.
bhacking
3/18
I suspect the White Sox might have handled it differently if LaRoche hit .270 with 40 HR's last year.
boards
3/18
Don't kids still go to school these days? Maybe that's the problem.
jcutiger
3/18
Why does Drake need to go to school? I'm sure Dad will let him stay in the room over the garage, live high off the hogs for as long as he likes, and will him all of his assets upon. Drake may never need to work a day in his life.
misterjohnny
3/18
Clearly you people aren't parents of school age kids. What gets taught in school in one day can be taught in about 2 hours in a home school setting. The rest of the day is keeping kids in line, switching subjects, switching classrooms and teachers, recess, lunch, and administrative stuff. I don't home school but I know families that do. And when you have a child, as they hit their teens you realize how little time you have left with them. Off to college and they are on their own before you know it. Even if they boomerang back home after college, they are doing their thing and not doing stuff with their parents.
Dodger300
3/19
I am aware that many people feel they are experts on education simply because they went to school when they were growing up. However, believing that one is an expert simply because he is a parent takes it to a new level of arrogance. Most schools have seven periods of instruction at 45 minutes each, for a total of 6 hours and fifteen minutes per day in class. Even if you allow five minutes to get settled in and very generous five minutes to prepare to leave, that is still over five hours of devoted classroom time per day. Meanwhile, passing to a new class six times a day at five minutes each takes 30 minutes of the day, and lunch takes at most 30 minutes more. Moreover, it is ridiculous to assert that a student the age of Drake LaRoche would ever receive any recess, as even elementary students are not allowed much, if any, recess these days. This just reveals how many people demean the efforts and productivity of teachers, by believing that anyone at home can be well-versed enough in Algebra, English Composition, World History, Biology, and a host of elective courses to be able to teach all of them, and can easily impart that knowledge in 120 minutes or less per day while in the comfort of their own living room. Maybe a few parents are that capable, but not many. Not many. But what the heck, you are only insulting teachers, and everyone knows they are any easy target. After all they are nothing but union thugs trying to rip off the public for things like health insurance and a retirement account, while only working, in your view at least, about two hours a day.
tearecrules
3/20
I'd imagine a family that has made somewhere around $60,000,000 could arrange some sort of tutoring of an acceptable quality for their child.
brownsugar
3/18
To me, the key phrase in your article was this one: "The right to manage has to do with the things that are not wages, hours, and other terms and conditions of employment..." Even if LaRoche were to argue that bringing his son to work was an established practice, I fail to see how that particular established practice is a condition that is relevant to the terms and conditions of his employment. So it seems to me that this situation falls within that right to manage.
eugenefreedman
3/18
They do negotiate access to the clubhouse as part of the CBA for media. I believe the CBA or a side-letter requires media to be admitted 10 minutes after the final pitch. If you view this as a generic who may you bring to into the workplace, at what times, and for what durations, it is definitely a condition of employment.
carlbrownson
3/18
As roarke suggests above, we need more to establish "past practice" than a repeated practice by one player for one period of time. The "past practice of the industry and the shop" is not established by the actions of one player - in fact, that player's repeated actions may be in contravention of the longer-established past practices of the industry. Past practice ought to be restricted to conditions like, say, an employer eliminating lunch, where lunch is not called for in the contract, but et cetera - past practice.
vonckx
3/18
I'd just point out that Williams says he didn't know that Drake was there basically everyday. Robin Ventura certainly knew and permitted it explicitly. Rick Hahn appears to have been fine with it, too, but probably on the premise that this was a decision to be made by Ventura.
misterjohnny
3/18
If that is true then Williams is an incompetent leader.
huztlers
3/18
You don' need a lawsuit to do the right thing. The White Sox should just can Williams. At the point where you are creating an environment where people do not want to work for your organization, you are not doing your job as GM. Fathers are not a protected class, but if Williams shot off his mouth like that at a different demographic he would already be gone.
cburnell
3/18
Nice piece. Didn't think I would run into the Steelworkers' Trilogy in Baseball Prospectus.... It would be interesting to know how the parties have interpreted the scope of the management rights clause in the past, what disputes have arisen and how they have been resolved. I suspect there are many prior grievances and arbitration awards where this has been discussed and addressed. Another item for consideration: whether there are side letters, published or unpublished, between the parties. Presumably LaRoche had no provision in his contract which assured his son's access to the clubhouse -- otherwise it would have been raised and a specific grievance already filed. Again, nice job.
TroJim
3/18
A few thoughts: 1. No sure that bring a family member to work is anything more than a benefit...in this a case a benefit that was extended to exactly 1 player for a period of 1 season. 2. If LaRoache is going to argue that this "established practice" is a "condition of his employment", must he not also argue that it is condition of employment for every member of the CWS...or even an "established practice" for every MLB in the country....that all MLB players be allowed to bring their families into all clubhouses at all times. 3. If LaRaoche is going to argue that the "established practice" applies only to him, then it seems like he has a very weak argument. Are we really talking about a "labor" issue, or a specific contractual issue between employer and employee. 4. Lets be clear. All MLB players have unique contracts which provide them with unique compensations, incentives and benefits. What goes for one does not go for all. It seems to me that LaRoache's dispute is a contractual one, then the contractual arrangement between him and the CWS (whatever that might be) should prevail. Not sure collective bargaining arguments apply since we are not talking about collective "established practices".
dfloren1
3/19
MLB dads don't get to spend much time with their kids between March and October. I'd argue that it is relevant to working conditions to be able to spend adequate time with one's own children. MLB is not analagous to the miliary and ballparks are not war zones, so the presence of children should not be considered inherently wrong. Beyond that, there is little precedent and probably no reasonable argument for allowing players' kids free access to the clubhouse and the restricted access areas of a ballpark. If you want that in your contract, negotiate for it! When Kevin Brown left my Padres to join the Dreaded Dodgers, he negotiated several paid flights on private jets for his family and him to see each other during the regular season. Why couldn't LaRoche have bargained for an arrangement to have his kid constantly present? My theory is that LaRoche simply wanted to spend more time with his kid and lucked into a good situation. But when he was informed the gig was up, he reasoned that he'd get more joy from quitting so he could spend oodles more time with his kid than he would having to play a full season for the team without the kid near. Props to LaRoche for valuing his relationship with his child over the urge to earn more duckets than he reasonably needs for financial independence for him and his.
ndparks
3/22
It could be argued that his son's presence obviously impacted his performance to a material degree. That was likely Williams point all along. An earlier comment stated the Sox would have handled things differently if he had a better season, and that is exactly the point. The Sox were paying for a certain level of performance, and got a completely different level. Since - like in most other jobs - LaRoche couldn't be fired for poor performance, removing distractions that may have clearly impacted his performance seems to me a prudent decision by management. If it was your $13MM a year, you might agree. Personally, I am happy for LaRoche that he values a few hours a day extra with his son for a few weeks out of the year at $13MM. There are a lot of people that wish they had such problems. If you look at ability to spend time with children annually and compare MLB players with that vast majority of other professions, I'd wager they are near the very top of available time to spend with them. Add into that the fact that the quality of that time would be very high given the presence of significant economic considerations, and frankly I have no idea what anyone is arguing about. Lastly, the request was merely to "tone it back", not to completely eliminate it. Management's position seems very reasonable to me and this fallicy that somehow poor Adam LaRoche has to make this massive sacrifice to go to work everyday is simply silly. Again, millions of people would not only love to make the money he makes, but would KILL to spend the time he gets with his son, even if his son didn't ever step foot in that clubhouse.
onegameref
3/20
The players enjoy the ability to be home for half of their games and certainly would be expected to live near enough to their home team to enjoy their family company at those times. Asking for the Sox or any team to allow constant access for his son seems more than a bit out of line. How would the Sox deal with the son accidentally running into a player while shagging flies as it has been reported took place? Or if he was hit by a line drive while looking the other way during batting practice? I think it is a more risk management move by the Sox and if any players had expressed displeasure with the son's presence, the Sox had to take action or risk even worse conditions for players to succeed.