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.
