Past Practice Doctrine

The author discusses the concept of past practice as it applies to bargaining agreements between an agency and a union.

The most often-cited reference to “past practice” should be a relatively easy concept to understand, and to apply when the parties recognize that it exists.

A simple definition of past practice is: a course of conduct that is the understood and accepted way of doing things over an extended period of time, and thus, mutually binding and enforceable. However, this simple and what should be reasonably clear definition is an area that is very often the source of conflict resolved through the grievance arbitration portion of the parties collective bargaining agreement.

By way of example, in government the stated lunch break is 30 minutes.  Now, assume that the alleged past practice is that everyone in the organization takes 45 to 50 minutes for a lunch break.

The contract is silent on the duration of the lunch period, and a new supervisor observing this behavior has a meeting to bring compliance back to the 30 minute timeframe.  One or more grievances ensue, stating that this change to the “past practice” was made without negotiations or input from the union, and that this was notorious, long standing, and not challenged.

To prevail at arbitration in the above example, a union will need to show that this time was regularly taken, and repetition is key to the consistency argument.

How is this demonstrated?  It is through witnesses that can or will testify with clarity and conviction that the condition exists, and it has occurred for a reasonably long duration.  It is important to either party that their witness(es) do not appear ambiguous.

Next, a big factor, and perhaps most important in this example, is that the practice has been accepted by both parties as an integral part of the employment relationship and workday.

In order to prevail, a party must show that the practice was not something of convenience or happenstance.  The union must show that management knew and accepted the condition without challenge.

Naturally, management is going to need to demonstrate the contrary, and that it has been challenged.  How do you do that?  You better hope that you have a good documentation trail, because oral testimony here is not always worth the paper it is written on.  Memorandums to the union on this very topic, minutes of staff meeting with employee, negotiation minutes, etc. are prime examples to show that the practice was not mutually accepted.

This is the constant struggle in the parties relationship where the workplace has to be a balance between the benefits of working conditions, and the need for organizational efficiency and productivity.

While conditions of employment are normally stated in the contract, assignment of work, duty hours, and productivity are not necessarily well defined. Failure by either the union to file grievances or failure by management to challenge may be enough of an agreement to find that a past practice exists.

If the circumstances surrounding a past practice ceases to exist, then the past practice ceases to exist.  However, if all of the conditions remain the same and unchallenged on a timely basis, then the practice is binding through the duration of the contract or until a negotiated change is made.

In contract negotiations it is vital for the offended party to state: “We no longer will abide by specific practice(s).”  If such a statement is not made, and the new term agreement is silent, and the former practice remains in place as before, it is binding.

The language of some contracts may preclude interim amendments or bargaining whereas the rollover of a past practice then remains for the full duration to the new agreement.  Some contracts seek to eliminate past practices by using zipper clauses to state “the parties hereby eliminate all past practice, except the following…..”  But, that is not foolproof as a forbidden practice can re-appear, and the parties are back to where they began, in conflict.

The biggest problem is having proof that a past practice exists. This is not only tortuous to one side or another to demonstrate, it is equally vexing to the arbitrator to determine.  A way to prepare for arbitration is to look at the following and to prepare your arguments and evidence around each:

  1. Does the practice concern a major condition of employment?
  2. How was it established, and does it violate some law or government-wide regulation?
  3. Was it established and administered unilaterally?
  4. Did one of the parties seek to establish it during the term negotiations without success?
  5. How frequent or repetitious is the practice?
  6. Is the practice longstanding?  (Can a timeframe be established?)
  7. How detailed is the practice, and what is its universal acceptance in the workplace?
  8. Do the majority of employees know about it, and do they rely upon it?

Always keep in mind that arbitrators and the Authority view labor agreements as binding contracts.  Unions and employees will push the edge of the envelope to gain an advantage.  Number four above frequently occurs, and it is not always the union pushing this agenda.

About the Author

Since retiring in 2011 after nearly 40 years of federal service, Bob Dietrich has been active in training supervisors and HR staff on FLSA and FMLA. He has a three-day course that he can bring to your agency, and he may be reached through the website.