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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