CHECKLIST FOR PAST PRACTICE
- Is the language of the contract plain and clear?
- Is the contract silent? If so, is this because MCO has agreed the matter has been reserved for management's decision, or right?
- Does the contract, though not expressly embody the practice, refer to it and contemplate its continuance?
- Has the practice been consistently followed in the past?
- How often has the practice been used?
- How did it originate?
- Has a contract been negotiated since the practice began without repudiating or limiting it?
- Has it been clearly enunciated and is it fully understood by both parties?
- Was there any intention of giving new meaning to the contract through establishing the practice?
- Does the practice deny either party of its rights under the law?
- If there has been a consistent past practice which is at variance with "plain and clear" contract language, some arbitrators will take the view that the contract is law and must be the guiding principle. A few will look at the contract as a living document and will rule that the parties must have meant to modify the contract to adjust to existing conditions.
- If there has been a consistent past practice where the contract language is silent or unclear, arbitrators as a rule take the view that past practice in this case is the ruling factor.
- Inconsistent past practice has no weight where the contract language is clear. When the language is silent or unclear and the inconsistent practice has been clearly preponderant in respect to the total practices, then made the past practice should be given much weight in the decision.
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