Understanding and Defending Past Practices

Stewards need to know what a valid past practice is and what the past practices in their workplace are—to defend them from erosion by management. A past practice is any longstanding, frequent practice that is accepted and known by both union and management. . . .

Stewards need to know what a valid past practice is and what the past practices in their workplace are—to defend them from erosion by management. A past practice is any longstanding, frequent practice that is accepted and known by both union and management. Bona fide past practices are considered part of the contract, so grievances can be filed if management violates them. Be sure to check your contract for language that limits their use for grievances. In most cases management cannot end a past practice without first bargaining with the union. In some cases management must wait until contract negotiations to change a past practice.

There are three categories:

• Contract-clarifying past practice, the strongest type. When contract language is vague or general, the practice clarifies the general language. For instance: Contract language reads, “The company will allow union stewards reasonable time off to attend union meetings.” For many years the company has allowed stewards to attend monthly union meetings and three times a year the district council meeting. This practice now clarifies and backs up what the contract means by “reasonable.”

  With such a strong past practice, an employer must bargain to change it and cannot change it if the union doesn’t agree.

• Independent past practice, not addressed by any contract language. Most often these are “benefits” that workers take for granted and so were not included in the contract.

  Example: There have always been vending machines in the cafeteria and free parking in the company lot. Management cannot just do away with these benefits.

  Management can terminate independent past practices under three conditions:

  It can prove the original conditions that started the practice have changed significantly.

  It can prove significant ongoing employee abuse of the practice.

  It notifies the union during contract negotiations that it will end the practice during the next contract.

  Even in the first two situations, the employer must bargain with the union before ending the practice.

  Most arbitrators will not extend these past practice rights to work methods.

  An example: Management wants workers to run three machines instead of two, claiming new technology makes them easier to run. The union probably cannot claim it is a past practice that workers run only two machines. However, the union can demand that management bargain over a change in working conditions.

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  Contract-conflicting past practice. These are the hardest to prove, with most arbitrators saying the contract should prevail. However, the arbitrator may rule in favor of practices that have existed for a long time, happen frequently, clearly conflict with the contract, and were clearly known to both parties.

  For instance: The employer has never given union reps absentee “points” for attending union conventions, even though there are no such provisions in the contract. For 10 years, the union has notified management each time who would be attending. Although the practice conflicts with the contract, it probably would be considered valid.

  The employer must notify the union of its intent to end this type of past practice and must bargain if the union requests.

The tests for a valid past practice are:

• Has existed for a reasonably long time. The longer a practice has been in effect, the more weight it carries. Many arbitrators think that a practice must be three to five years old and must have been in practice during at least two contracts.

• Occurs repeatedly, the more times the better. An exception might occur around a holiday. If every year for seven years management allows workers to go home early Christmas Eve, this could be a valid past practice.

• Is clear and consistent, repeated the same way each time. If there are minor deviations, there must be at least a predominant pattern of consistency. An example: Management has always let workers accept personal phone calls. The union can document 100 times in the last five years. Management points out three occasions where workers were refused the right. The overwhelming pattern favors the union.

• Must be known to both management and union. While a past practice does not have to be “negotiated,” it must be something that both parties know about. Sometimes it’s not good enough for a low-level foreman to know; it must be higher management. For instance: Workers have been leaving work a little early on Fridays for years. According to the absentee program, they should receive one point, but the foreman never gives points for Friday. Upper management finds out and decides to give everybody warnings. Management did not inform the union that it wanted to change the practice. However, since upper management did not know about this practice, it would be hard to argue that workers could continue to leave work early every Friday.

• Must be accepted by both management and union. Often the fact that a practice occurs frequently over a long period of time indicates that the parties agree to it. A practice that is openly agreed to by both parties gains past practice status quicker than one that is not openly accepted.

An example: For many years workers have been allowed to line up at the time clock after the first bell rings, signifying five minutes till quitting time. A new boss says no one can line up till the quitting bell rings. The union has a strong case: the fact that management never did anything to stop this practice indicates acceptance.

When filing a grievance, gather plenty of evidence on how long and how frequently the practice took place, and how the employer knew about it. The more, the better.

David Cohen is an international rep, United Electrical Workers

This article is based on attorney Robert Schwartz’s book, How to Win Past Practice Grievances. It can be ordered from Work Rights Press.