A note from the Senior LRR - Martin Mejia
5/13/2008
Enforcing Past Practice
One of the most controversial issues union representatives encounter is that of Past Practice. Are long-standing benefits and working conditions binding even when they are not referred to in a collective bargaining agreement (contract)? Several principles have emerged resulting from cases:
• Past practices that concern valuable personal benefits and privileges for employees or the union are generally considered binding on the employer.
• Past practices that concern methods of work or the direction of the workforce are generally considered subject to change.
Arbitrators are likely to find benefit practices binding because it is reasonable for a union to expect that long-standing benefits and privileges will continue during the contract if management does not object to the practice during negotiations. Arbitrators often classify such customs as “silent” or “implied” agreements. Some practices that typically are enforced under this principle are:
• Paid lunch periods
• Holiday bonuses
• Free meals or parking
• Time off for union business
• Short shifts before a holiday
Pas practice involving methods of work may not be as easy. For example, a school district’s transportation department may have used buses with manual transmissions for 20 years. If it changes to automatics, does it violate the past practice doctrine? The answer is NO. An arbitrator would consider it unreasonable for a union to assume that, by signing a contract, the employer has agreed to freeze its work methods until the contract expires. So, a union that wants to guarantee a particular work practice needs to obtain an agreement in writing. Pas practice does not prevent a district from:
• Adopting new work rules
• Changing work assignments
• Installing new machinery or equipment
• Creating new work schedules
Of course, the fact that a past practice is not appropriate does not mean that the union will have no grounds to object. We also look at contract language and the Education Code and various other State and Federal laws. We might also file an Unfair Labor Charge if the employer makes a change unilaterally.