Past practices are consistent actions or behaviors relating to conditions
of employment that are recognized by employees, the union and the employer
as the standard. These are used and accepted practices which are not
specifically addressed in a unit’s collective bargaining agreement. It is a
past practice when an organization consistently carries out tasks not
addressed in their agreement over a substantial period of time and all
parties involved have either accepted it or have not challenged it.
- Both management and the union must be aware of the practice. There
must be a showing that the practice was consistently exercised for an
extended period of time, with management`s knowledge and express or
implied consent. A Past practice is also developed when management knows
of such a practice and does not protest it.
- Past practices can be enforced if they are included in a negotiated
- Past practices must be legal. When a practice is found to be
illegal, the practice must cease immediately. Management is not
obligated to bargain the discontinuation of the practice, but it must
notify the union and bargain the impact and implementation of such
discontinuation. Bargaining under these circumstances does not have to
be complete for the practice to be discontinued.
- Management must notify the union when it plans to discontinue a past
practice. As long as the practice is not in conflict with any applicable
law, management and the union must bargain over any changes made to a
- Management’s failure to notify and bargain the impact and
implementation with the union when ending a past practice, legal or not,
is grounds for an unfair labor practice (ULP). If an agency discontinues
a past practice because they consider it to be illegal and does not
notify the union, they act at their own peril. In this case, if the
union files an ULP and the practice is found to be legal, the agency
will be held responsible.
- Arbitrators often use evidence of past practices to interpret
ambiguous contract language.