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.
