DEFINING PAST PRACTICE
Past practices are defined as long-standing practices accepted by both management and the union. For instance, if a worker is disciplined for leaving his workstation for a few minutes to wash-up before punch-out time and the company has allowed workers to do this for years and years, the employee may have a grievance based on past practice. The union urges all union officials, shop stewards and employees to follow the precise terms of the collective bargaining agreement. Grievances based upon past practices can be hard to win. The burden of proof is usually placed upon the union. Issues of past practice often involves issues, for example:
- Uniformity - occurs in the same manner time after time
- Recurrence - happens repeatedly on a consistent basis
- Time Period involved - the practice is repeated over a long period of time.
- Acceptance - both parties accept the ongoing practice.
CONTRACTUAL CONDITIONS
Past practices should be examined in light of contract language. As a general rule of thumb:
- If the contract language is absolutely clear, the contract usually governs even if the past practice goes against the contract.
- If the contract is ambiguous, arbitrators will sometimes rule that in the absence of specific language a past practice is upheld, as it is an aid in the interpretation of a contract.
- When the contract is completely silent there’s a better chance of winning a past practice case, but be sure to closely examine the management rights clause in the contract. Management tends to argue (with or without a management rights clause) that it has reserved rights as a management prerogative.
- Past practice grievances can be difficult to win and grievances where past practice is involved can be complicated.
For a more in-depth discussion of past practice issues, see Elkouri and Elkouri, Chapter 12, Custom and Past Practice, pgs 605-630.
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