Winning
Past Practice Grievances
Understanding and Defending Past Practices at Work ...
One of the powerful tools that each steward has in their Steward's Toolkit is
the use and understanding of past practices. Stewards need to know what
constitutes a valid past practice and what are the past practices in their
workplace. It is important that all stewards are aware of the past practices so
they can defend them from erosion by management.
Definition of a past practice
A past practice is any long-standing, frequent practice that is accepted and
known about by the union and management. A practice that meets the standards of
being a bone fide past practice is considered to be part of the contract. Since
it is part of the contract, grievances can be filed if management violates a
past practice. 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.
Be sure to check your contract for any language that may limit the use of past
practices for grievances.
The test for a valid past practice is as follows:
It must exist for a reasonably long time.
The longer a practice has been in effect the more weight it carries. We are
talking about years, not weeks or months. Many arbitrators think that a practice
must be 3-5 years and "cross over contracts," that is, it must have
been in practice during the life of at least 2 contracts.
It must occur repeatedly
To be valid, a practice has to occur many times, the more times the better. It
should also occur consistently. A practice that happened 5 times, four years ago
and hasn't happened again, is not a very strong past practice. An exception to
this might be a practice that occurs around a specific holiday. If every year
for 7 years the management allows workers to go home without penalizing them
after working only half the day on the day before Christmas, this could be a
valid past practice.
It must be clear and consistent
Whatever the past practice is, there must be a clear and consistent pattern of
it being repeated in the same way each time. If there are minor deviations, then
there must be at least a predominate pattern of consistency.
Example: Management has always let workers accept
personal phone calls. The union can document over 100 times in the last 5 years.
Management says they can prove that on 3 occasions workers were refused the
right to accept a personal phone call. In this case the clear and overwhelming
pattern is in favor of the union. Three refusals over five years doesn't break
up the clear and consistent pattern.
It must be known to both management and the union
While a past practice does not have to be "negotiated," it must be
something that both parties know about. On the management side it sometimes is
not good enough for a low-level foreman to know, it must be higher management.
Example: For years workers have been leaving the
work place early on Fridays and the foreman knows it. According to the
"absentee program" workers should receive one point for leaving early,
but the foreman never gives points for Friday. Upper management finds out and
decides to give everybody warnings for leaving work early. The union could argue
that nobody should get a warning because management did not inform the union
that they wanted to change the practice of no discipline for leaving work early
on Friday. 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, without discipline.
It must be accepted by both management and the union
The practice not only has to be known by both parties, it must be accepted by
both parties. Often times 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. When management acknowledges a past practice as part of a
grievance answer, its "legal" status is much more secure.
Example: For many years workers have been allowed
to line up at the time clock after the first bell rings, signifying there are
five minutes left until quitting time. A new boss says that no one can line up
until the quitting bell rings. The union has a strong case of past practice.
Management cannot claim they didn't know workers were lining up after the first
bell. In this case since management never did anything to stop this practice,
this indicates acceptance of the practice.
The Types of Past Practices
There are three categories of past practice. The "contract clarifying past
practice" is the strongest type and the "contract conflicting past
practice" presents the weakest legal argument.
Contract clarifying past practice: These practices
come into being when there is contract language that is vague or general. The
practice defines the general language.
Example: The contract language reads, "The
company will allow union stewards reasonable time off from work to attend union
meetings." The general phrase is "reasonable." For many years the
company has allowed stewards to attend monthly union meetings and three times a
year the District council meeting. Every year one steward and the officers get
time off to attend the National Union convention. This past practice now
clarifies what the contract means by "reasonable."
This is the strongest type of past practice because it is backing-up negotiated
language. In most cases an employer must bargain to change the past practice,
and they cannot change it if the union doesn't agree.
Independent past practice: This is a practice that
is 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. Management cannot just decide to remove them. Parking has always
been free in the company parking lot. Management cannot just decide to begin
charging employees.
Independent past practices can be terminated by management
for the following reasons:
*If they can prove that there has been a significant change in the original
conditions that started the practice;
*If they can prove significant ongoing employee abuse of the practice;
*Finally, if they notify the
union during contract negotiations that they will end the practice during the
next contract.
Even under the "change in conditions" and "abuse" situations
the employer must bargain with the union before ending the practice.
Most arbitrators will not extend these past practice rights to "work
methods."
Example: Management wants workers to run 3 machines
instead of two, claiming new technology makes them easier to run. The union
probably cannot claim it is a past practice that workers only run two machines.
However in most cases the union can demand that management bargain over a change
in working conditions.
Contract conflicting past practice: In this case
the practice clearly conflicts with the contract language. These are the hardest
to prove, with most arbitrators coming out on the side of saying the contract
should prevail. With a contract conflicting past practice an arbitrator may look
at practices that have existed for very long times, happen very frequently, very
clearly conflict with the contract and were very clearly known to both parties.
In these cases the arbitrator may rule in favor of the practice.
Example: The employer has never given Union
Representatives "points" under the absentee system for attending union
conventions, even though there are no provisions for this exclusion in the
absentee system which is part of the contract. This has been going on for ten
years. The union notifies management each year as to who will be attending the
convention. In this case although the practice conflicts with the contract it
probably would be considered a valid past practice.
The employer must notify the union of its intent to end the past practice and
must bargain with the union, if the union requests to bargain. After bargaining
the employer may end the past practice.