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Past Practice 

"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:    

  • Occurs Regularly

  • Both union and management have accepted and/or not challenged

  • Does not violate the contract or any written company rule.

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 past practice. 

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.

 

                                 •    Acceptance - 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 contract language. 

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.

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Revised: 06/08/06.