Past Practices

Past practices are consistent actions or behaviors relating to conditions of employment that are recognized by employees, the union and the employer as the standard. These are used and accepted practices which are not specifically addressed in a unit’s collective bargaining agreement. It is a past practice when an organization consistently carries out tasks not addressed in their agreement over a substantial period of time and all parties involved have either accepted it or have not challenged it.

Both management and the union must be aware of the practice. There must be a showing that the practice was consistently exercised for an extended period of time, with management`s knowledge and express or implied consent. A Past practice is also developed when management knows of such a practice and does not protest it.
Past practices can be enforced if they are included in a negotiated grievance procedure.
Past practices must be legal. When a practice is found to be illegal, the practice must cease immediately. Management is not obligated to bargain the discontinuation of the practice, but it must notify the union and bargain the impact and implementation of such discontinuation. Bargaining under these circumstances does not have to be complete for the practice to be discontinued.
Management must notify the union when it plans to discontinue a past practice. As long as the practice is not in conflict with any applicable law, management and the union must bargain over any changes made to a past practice.
Management’s failure to notify and bargain the impact and implementation with the union when ending a past practice, legal or not, is grounds for an unfair labor practice (ULP). If an agency discontinues a past practice because they consider it to be illegal and does not notify the union, they act at their own peril. In this case, if the union files an ULP and the practice is found to be legal, the agency will be held responsible.
Arbitrators often use evidence of past practices to interpret ambiguous contract language.

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