THE POLICY THAT WOULD
NOT DIE
The “terror” of past practice
A Stewards Halloween Story
STEWARDS COUNCIL TRAINING
Enter if you dare!
Manager’s Lament
“Every time I try to
make changes, the
UPE steward says
I have to follow
past practice”
Those old practices rise up
So what is a “Past
Practice?”
Definition
• Past practice is the term used to describe a pattern of
workplace behavior that is sufficiently clear, of long
enough duration, and well enough known to both
management and union officials to constitute an
unwritten rule or policy. To qualify as a bona fide past
practice, such a pattern of behavior must also involve a
condition of employment of bargaining unit employees,
and must not conflict with applicable laws. Once
established, essentially by unwritten consensus or silent
toleration, a past practice becomes just as enforceable
as a formally negotiated workplace rule that is placed in
writing by the parties. That is, it may be enforced through
application of the ULP procedures of the statute and the
negotiated grievance procedure of a labor agreement.
Courts and arbitrators have
upheld Past practice
THE SUPREME COURT ON PAST PRACTICE
The Supreme Court explained the legal status
of past practice in 1960:
The collective bargaining agreement covers the whole
employment relationship. It calls into being a new common
law -- the common law of a particular industry or of a
particular plant... [T]he industrial common law -- the practices
of the industry and the shop -- is equally a part of the
collective bargaining agreement although not expressed in it.1
Past practices can be enforced
A past practice based on
a mutual agreement
between the parties is
part of the contract. If the
employer ignores,
departs from, changes or
eliminates the practice,
the union can grieve it.
Is it a past practice?
Your first step is to confirm that the conduct
satisfies the threshold requirements:
• longevity
• repetition
• consistency
• knowledge
• acceptance
Longevity
• To be considered a past practice, the behavior must
continue for a substantial amount of time. In other words,
if something happens for a short time or in response to a
one time event, it is likely not going to be considered
“past practice.”
• The supervisor wants to “thank” the staff for finishing a
difficult project, so she allows them all to leave 15
minutes early every Friday for the rest of the month. After
that everyone is again required to stay until the end of
their shift. Even though the behavior is repeated for 3
weeks, it doesn’t occur over a long enough period of
time to be considered a past practice.
Repetition
• The behavior must be repeated. Just because
something occurs once or twice, even if
management is aware of it, does not make it a
past practice.
• An example: workers are normally required to
use vacation time when they are late to work,
but the supervisor had a rare, soft-hearted
moment and allowed a worker who was out of
vacation time because he had just returned to
work after a serious illness to make up the time
at the end of the day. Since it only happened
once, it does not create a past practice.
Consistency
• To be considered a past practice, the behavior
must be the usual response to a situation.
• For example, one year management gave
everyone a box of chocolate for the holidays, the
next year they gave out only 10 boxes by a
drawing. Another year they didn’t give out any
candy but gave coupons for $1.00 off Sees
Candy. This was followed by a year in which
they again gave everyone candy and then a
year in which they gave no one candy. The
behavior is not consistent enough to become a
past practice.
Knowledge
• Both management and the union must have
knowledge of the practice.
• For example: A supervisor has quietly been
‘delaying’ workers step increases by the number
of days they were absent in the previous year.
When a worker raises the issue, the union
objects and threatens to file a grievance. The
supervisor claims it’s her ‘past practice’ and
she’s “always done this”. Since only the
supervisor was aware and of her behavior, it is
not a past practice. The grievance would be
won.
Acceptance
• Not only do both the employer and the union
have to know about the practice, but both have
to agree to it.
• Not objecting can sometimes be taken as
acceptance.
• The union has always had a brief stewards
meeting after lunch on the last Friday of the
month. The union has always sent a copy to the
manager of the meeting notice. The manager
has never objected to the meetings. This could
be considered an agreed past practice.
What type of ‘past practice”?
Next you must determine which of three
types of practice you are looking at. The
categories are clarifying practices,
independent practices, and conflicting
practices.
These past practices are considered to be ‘mutual
agreements”
I. Clarifying Practices - implements general or ambiguous
contract language.
II. Independent Practices -relate to subjects not covered
by the written agreement. An independent practice
usually involves a worker benefit, such as free parking.
Rarely, there is a 3rd kind of past practice - Conflicting
Practices. Consult with your Business Agent before filing
on this type.
III. Conflicting Practices- Conflicting practices contradict
language in the written contract. A conflicting practice is
usually not considered a mutual agreement. However,
exceptions arise if the practice is intended to amend the
contract or if the practice causes a party to alter its
bargaining demands or otherwise change position to its
detriment.
Grievances
Grievances to enforce clarifying practices
have the strongest legal standing.
Grievances to maintain independent
practices depend on the nature of the
practice.
Grievances to enforce conflicting
practices are the most difficult to win.
Remember: Not all past practices are
contractually binding!
It is important to challenge all
changes to past practice
WHEN THEY OCCUR
• When you hear or see changes :
– Contact your Business Agent
– Determine if it is a past practice
– Don’t let the change ‘slide’
– File a grievance if necessary
Management Rights
• Managers often will claim
that ‘management rights’
allow them to change
anything not in writing.
• This is not true
• Then they’ll tell you ‘they
didn’t know”
• Its their job to know the
rules and laws!
Past Practice Quiz
Work together in a small
group to bat around
answers to the quiz!
QUIZ: Which of the following are likely to
be enforceable past practices?
•
A supervisor allows a worker who is feeling ill to skip a mandatory meeting. The
following week another worker asked to skip it citing ‘past practice”
• At Thanksgiving, the Program Manager has always provided turkeys to the clerks in
the unit because she feels bad they don’t make more money. She even brags to the
union about how she ‘takes care of her people.” This year, she is annoyed that none
of them will volunteer for OT and has announced. “No more turkeys”
• The employer’s policy says that each worksite will have a procedure to allow workers
to select vacant offices. At the Dodo building, workers have selected by bureau
seniority for 7 years. Someone complains that wasn’t fair and the manager agreed so
future assignments will be made by pulling names from a hat.
• For 20 years, the employer did not dock an employee for being late if it was under 6
minutes. The Steward learns that 2 years ago payroll started docking people for even
being one minute late. The Business Agent confirmed that the union was never
notified of the change nor agreed to it.
• Sarah’s job is data entry and record keeping. When she was hired, she was told that
she would be entering data on an electric typewriter. This was 17 years ago. She has
used that typewriter for the entire time she worked here. Now she has been told that
she will have to enter the data using a computer. She wants you to file a grievance
over this because the past practice was to use typewriters.
• The parking lot at Building X is always crowded. The manager has announced that
since the primary mission of the County is to serve clients, that from now on workers
will have to pay for parking, but clients can park free. Would it make a difference if
they charged clients too?
One last reminder: Even if a change is permissible, the employer may have to meet
with the union over the impact of those changes.
Remember
• If you learn of changes in wages, benefits,
hours or other conditions of employment,
contact your Steward or Business Agent
right away.
• Was this training helpful? Let us know! Do
you have more questions? Contact us at
info@upe1.org