If an employer ignores a clause under a union contract with respect to one employee for many years, does that clause become void? My college employer (part-time) is required to offer me 6 units a semester, but in an emergency can offer me 9 units. I have had 9 units for more than 15 years. Now the college would like to take me down to 6 on the grounds that 6 units is all they are required to offer.
Hello, This issue is more of a contract law question than one of employment law. The real issue is whether or not the employment contract was impliedly modified by the parties respective conduct towards each other. "Before a contract modifying a written contract can be implied, the conduct of the parties according to the findings of the trial court must be inconsistent with the written contract so as to warrant the conclusion that the parties intended to modify the written contract. " Garrison v. XXXXX XXXXX & Sons (1944) 25 Cal.2d 473. Your facts suggest a long history of the employer ignoring its own contract. This suggests that the employer consented to modify the contract based upon actual conduct, and that you continued employment in reliance upon that consent. However, if the union contract contains a "no modification except in writing" provision, then that provision would probably control the outcome of the issue, regardless of whether or not the employer repeatedly modified its contractual rights in favor of the employee. Civil Code 1698 provides that a written contract may be modified by an oral contract supported by consideration, except as otherwise provided in the written contract. This suggests that a "no modification except in writing" provision would be absolute. However, Subsection (d) provides that "waiver of a provision of a written contract" can overcome the written prohibition of modification except in writing. The botXXXXX XXXXXne here is that you could probably fight this, but not without the union's help. You are effectively asking the union to try to enforce a contractual waiver against the employer, and that is a pretty complex and expensive legal action, in the event that the employer simply refuses to bend. Please let me know if I can be of further assistance.
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).