"Past practice" is a
term you may hear often as a steward. A short definition of a past practice is
any long-standing practice that:
Past practices usually
cover situations where the contract is silent or ambiguous. A past practice
grievance usually arises when management unilaterally, and without notice to the
union, changes an established procedure or disciplines a worker for following a
For example, "wash-up
time" was once a common past practice. A company allowed workers to leave their
work areas fifteen minutes before the end of the shift to wash-up before
clocking out. When the company changes the practice without notice to the
employees or union, then disciplines an employee for following the practice, the
union can file a grievance based on a violation of past practice.
These guidelines will
help you determine if a past practice violation has occurred.
• Uniformity - Was the policy
consistently applied over a period of time and did at least a majority of the
employees have the opportunity to enjoy the practice?
Longevity - The longer the period of time a policy has been in
effect, the stronger the case for it being considered a past practice.
- Both the union and management know that the practice has been in effect and
neither party has objected.
• No Written Language - There is nothing in writing either in the
contract or in written company rules regarding the practice. Written language
supersedes past practice.
Past practices are
often difficult to establish. Past practice grievances have become less common
in recent years, as there are fewer practices not covered by work rules or
For example: Employer
gifts such as a Christmas bonus or a Thanksgiving turkey are gratuities and
cannot be considered past practices. Management's right to direct its work
force and change operating procedures if it does not conflict with contract
language has been upheld in numerous arbitrations. Furthermore, lax enforcement
of a rule does not create an enforceable past practice. Finally, even if a past
practice meets all of the criteria listed above, an arbitrator still may refuse
to uphold the grievance.