Past practice

ast practice may be the most misunderstood term in labor relations. In examining many published decisions, it becomes apparent that there are no unanimously accepted standards for defining past-practice. Arbitrators frequently, although not always, have recognized a wide authority in management to control the methods of operation and to direct working forces. This authority includes the right, without penalty, to make if these changes do not violate a right of employees spelled out in a collective bargaining agreement.

Past practice arguments are sometimes made to support a desired interpretation of existing contract language. Additionally they are made to convince an arbitrator that, absent any language, a practice has become a binding unwritten contract between the parties.

Some of the prerogatives for which management will usually succeed in thwarting a union’s challenge citing past practice are:

  1. Changing work schedules.
  2. Determining the number of employees needed on a job or a shift.
  3. Adding or eliminating position duties within reasonable limits.
  4. Eliminating positions altogether.
  5. Discontinuing a particular service.
  6. Not filling a vacancy.
  7. Changing pay periods.

Generally, the following conditions need to be met before an arbitrator will validate a past practice argument:

  1. The application of the practice must be clear and consistent.
  2. The application of the practice must be repeated over a period of time.
  3. The employees and management have accepted the practice as the appropriate and customary means of behaving.
  4. The practice should relate to its origin and/or purpose. If it was originally started to address a specific issue, it should not be broadened in scope.
  5. The parties should have a mutual understanding when the practice began. It should not have been a unilateral decision on the part of management that was well within their discretion to change in the future. One of the arbitrators, Mario Bognanno, offered this definition of past-practice: “A practice (binding past-practice) is a reasonable uniform response to a recurring situation which over a substantial period of time has been recognized by the parties, explicitly or implicitly, as the correct response.”