Types of Past Practices
three categories of past practice. The "contract
clarifying past practice" is the strongest type and the
"contract conflicting past practice" presents the
weakest legal argument.
clarifying past practice:
These practices come into being when there is contract
language that is vague or general. The practice defines
the general language.
The contract language reads, "The company will allow
union stewards reasonable time off from work to
attend union meetings." The general phrase is
"reasonable." For many years the company has allowed
stewards to attend monthly union meetings and three
times a year the District council meeting. Every year
one steward and the officers get time off to attend the
National Union convention. This past practice now
clarifies what the contract means by "reasonable."
This is the
strongest type of past practice because it is backing-up
negotiated language. In most cases an employer must
bargain to change the past practice, and they cannot
change it if the union doesn't agree.
This is a practice that is not addressed by any contract
language. Most often these are "benefits" that workers
take for granted and so were not included in the
There have always been vending machines in the
cafeteria. Management cannot just decide to remove them.
Parking has always been free in the company parking lot.
Management cannot just decide to begin charging
past practices can be terminated by management for the
can prove that there has been a significant change
in the original conditions that started the
can prove significant ongoing employee abuse of the
Finally, if they notify the union during contract
negotiations that they will end the practice during
the next contract.
the "change in conditions" and "abuse" situations the
employer must bargain with the union before ending the
arbitrators will not extend these past practice rights
to "work methods."
Management wants workers to run 3 machines instead of
two, claiming new technology makes them easier to run.
The union probably cannot claim it is a past practice
that workers only run two machines. However in most
cases the union can demand that management bargain over
a change in working conditions.
conflicting past practice:
In this case the practice clearly conflicts with the
contract language. These are the hardest to prove, with
most arbitrators coming out on the side of saying the
contract should prevail. With a contract conflicting
past practice an arbitrator may look at practices that
have existed for very long times, happen very
frequently, very clearly conflict with the contract and
were very clearly known to both parties. In these cases
the arbitrator may rule in favor of the practice.
The employer has never given Union Representatives
"points" under the absentee system for attending union
conventions, even though there are no provisions for
this exclusion in the absentee system which is part of
the contract. This has been going on for ten years. The
union notifies management each year as to who will be
attending the convention. In this case although the
practice conflicts with the contract it probably would
be considered a valid past practice.
employer must notify the union of its intent to end the
past practice and must bargain with the union, if the
union requests to bargain. After bargaining the employer
may end the past practice.