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:
- Changing work schedules.
- Determining the number of employees needed on a job or a shift.
- Adding or eliminating position duties within reasonable limits.
- Eliminating positions altogether.
- Discontinuing a particular service.
- Not filling a vacancy.
- Changing pay periods.
Generally, the following conditions need to be met before an arbitrator will validate a past practice argument:
- The application of the practice must be clear and consistent.
- The application of the practice must be repeated over a period of time.
- The employees and management have accepted the practice as the appropriate and customary means of behaving.
- 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.
- 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.”