Past practice grievances can be difficult to handle because there is no express contract or policy language to support your case. It is, however, an important consideration because of the many practices and procedures that exist outside the contract -- everything our members do in a day cannot possibly be written in contract form.

 

This section describes what a past practices is, and what it takes to win a grievance on a past practice violation.

 

When interpreting the working, intent, and application of contractual provisions, arbitrators may be guided by past practice under the contract.

 

What is the definition of Past Practice?

 

One definition is that "A practice is a reasonable uniform response to a recurring situation over a substantial period of time, which has been recognized by the parties implicitly or explicitly, as the proper response."

 

The term, practices, usually refers to local practices and working conditions which can vary considerable at different facilities within the same Department. They are often a customary way, not necessarily the best way, of handling a given problem. A method of handling a problem cannot be considered a practice if it is only one of several ways of doing it.

 

The practices must be recurring and deal with the same type of situation. It must have existed over a substantial period. The lax enforcement of a rule may not constitute a valid practice since there may not be acceptance, either implicit or explicit. Lax enforcement might, nonetheless, be used in some cases to build proof of discriminatory or inequitable treatment.

 

Generally, the burden of proof is on MCO to show that the practice in fact does exist.  This is frequently difficult to do since MCO may not have very complete records, and the employer is able to provide evidence of different practices.

 

If the practice is unclear or conflicting, the arbitrator is not likely to place weight on it either way.

 

What is the importance of Past Practices in Collective Bargaining?

 

Past practices have made the following contributions to the development of industrial self-government. It can be an aid to the interpretation of ambiguous contract language.

 

Even where contract language is clear and agreed upon, past practice may modify it.

 

Past practice is important in defining jobs and classification lines that may affect layoffs, wages, and promotions.

 

Under some circumstances, a long history of past practice indicates a mutual agreement even though the contract is silent.

 

Past practice is not binding and cannot be enforced when it is clearly contrary to the contract.

 

The validity of a past practice argument can only be determined by complete knowledge of the details of the individual agreement in effect at the facility, camp, or center.

 

Other Possible Limitations on the Use of Past Practices

 

If MCO has raised the issue of a past practice at contract negotiations and made it one of its demands, it is possible for the Department to eliminate the practice if MCO does not win its demand and have the practice placed in the contract. Arbitrators usually cannot "give the Union what it could not win at the bargaining table." If the Department continues the practice well beyond negotiations, it may be possible to show the arbitrator that the practice has remained in effect and should be upheld.

 

Zipper Clauses:

Management often relies on the management’s rights clause in the contract to show that it has the right to make changes in working conditions not set forth in the contract. Because arbitrators have ruled in the Union's favor on some past practice, management now is attempting to zip up the contract by having language in the contract which states that both sides agree that all working conditions and agreements between the parties are in the contract. This type of language makes it more difficult for MCO to win past practice grievances.

 

Example of Zipper Clause:

The parties acknowledge that during negotiations which resulted in this agreement, each had the unlimited right and opportunity to make decisions and proposals with respect to any subject or matter not removed by law from the area of collective bargaining, and that the right and opportunity are set forth and solely embodied in this agreement.

 

Therefore, the Department and the Union, for the life of this agreement, each voluntarily and unqualifiedly waives the right, and each agree that the other shall not be obligated to bargain collectively with respect to any subject matter referred to, or covered in this agreement, or with respect to any subject or matter not specifically referred to or covered in this agreement, even though such subjects or matters may not have been within the knowledge or contemplation of either or both of the parties at the time they negotiated or signed this agreement.