One of the most common disputes between labor and management is over whether something is a past practice.
Unions frequently tell management that it may not make a change, because the change would be a change in a past practice.
For the most part, past practices may be changed, but management must first bargain with the union over the change in practice.
Some practices cannot be changed if they have become terms of the collective bargaining agreement. A practice which has become the custom for how an agreement is interpreted becomes a provision of the collective bargaining agreement and may not be changed until the agreement is re-negotiated. If a past practice is changed without notice and bargaining with the union over such change is an unfair labor practice.
Four Elements of Past Practices
There are four elements that must exist for there to be a past practice.
Element 1
The practice must concern a working condition. Only something which is a working condition can become a past practice.
To be a working condition, it must pertain to employees in the bargaining unit, and it must directly affect the employment relationship of bargaining unit employees.
Example
If a practice develops of allowing retired employees to visit the workplace, stopping their access is not a change in a past practice, because practices concerning non-bargaining unit employees are not working conditions. In other words, a practice concerning retired employees is not a working condition, because it does not pertain to bargaining unit employees and therefore cannot become the basis for a past practice.
Element 2
The practice must be exercised consistently. The consistent exercise of a practice is dependent on the nature of the practice. The more often a particular practice would naturally occur over a given period, the more often it must be shown to have occurred.
If something takes place once a year, then it must have occurred each year for a number of years. If something happens every day, it must have occurred every day for a period of months or for some other substantial period.
Example
If a practice develops of employees drinking beverages at their desks, there must be a showing that this practice was exercised consistently. It would not be sufficient to show that employees occasionally drank beverages. There must be evidence that employees regularly drank beverages at their desks because drinking beverages is the type of practice which occurs on a regular basis. If the practice in question only occurs once a year, then there would need to be evidence that showed it occurred for a number of years in row.
Element 3
The practice must be in existence for a sufficient period of time, depending on the nature of the practice. The length of time a practice must be in existence depends on what the practice is. If a practice occurs frequently, the period required would be shorter. If the practice occurs infrequently, the period would have to be longer.
Example
Employees have been permitted two hours of administrative leave for donating blood each of the five times blood donations have been requested over the past year. This might be considered a sufficiently long period of time, since each time blood donations were requested, administrative leave was granted. However, if blood donations occurred only once a year, a one-year practice would not be sufficient.
Element 4
The practice must be known by management and agreed to or acquiesced in by it.
The actions – or inaction – of management can amount to an agreement to a past practice. If responsible management knows of the practice and either agrees to the practice or allows the practice to continue, this meets the requirement of this element.
Who constitutes responsible management can become a key question, depending on the nature of the practice. A practice which only affects an individual supervisor’s unit and is not derived in any way from the collective bargaining agreement can be agreed to or acquiesced in by the supervisor of that unit. A practice which changes the meaning of a collective bargaining agreement can only be agreed to by management at the level at which the collective bargaining agreement was signed.
Example
A practice developed in Region 6 of the agency of allowing the Union President 100% official time for union activities. The agency collective bargaining agreement, which covers all the regions of the agency, provides that union officials will receive reasonable official time for union activities. The new Regional Director terminated the 100% official time for the Union President because he felt it was inconsistent with the contract. The union filed an unfair labor practice claiming that management terminated a past practice without bargaining.
A past practice cannot develop at the local level which is inconsistent with the collective bargaining agreement. The prior Regional Director could not agree to or acquiesce in a past practice that was inconsistent with the agency level collective bargaining agreement. He would not be considered a responsible management official with authority to change a provision of the collective bargaining agreement by practice when that provision was agreed to at a higher level of the agency. The union would have to show that someone at the agency level knew of the practice in Region 6 and either agreed to the practice or acquiesced in it.
Illegal Past Practices
If a practice is found to be illegal because it violates law, management may immediately terminate the practice without first bargaining. It may, however, have an obligation to bargain post-implementation over the adverse effects on employees from the termination of the practice.
Example
Management just discovered that employees have been paid standby time in violation of law. It immediately terminated the practice.
The union claims this was a past practice which can only be terminated after bargaining. If there is a dispute over the legality of the practice, the union can file an unfair labor practice or a grievance. If management is correct, then the only bargaining obligation management might have is to bargain after the change takes place over the adverse effects on employees.
When can management change a past practice?
- When the practice is not a working condition. If the practice is not a condition of employment it can be changed at any time.
- When the practice is inconsistent with law. An illegal past practice can be changed at any time.
- After the completion of bargaining over the change in practice the practice can be changed.
- In a nationwide unit if the practice is not known at the national level or different from national agreement it may be changed without bargaining.
- If the practice does not meet elements of past practice, it can be changed.
When a practice reaches the status of a past practice it becomes an established working condition which can not be changed prior to bargaining.
