A Quick Primer on Past Practice

Last week, I had to pleasure of speaking to labor and management advocates at the Labor Arbitration Institute about evidence and past practice. Actually I talked about a lot of things, but those were two topics about which I gave short lectures, and based on the questions from the audience, I thought it might help to talk a little bit about past practice.

Past Practice is the concept that certain practices in a workplace become so commonplace that the parties can rely on them regardless of whether they are in the collective bargaining agreement. That definition doesn't really illuminate the purpose of considering past practice in an arbitration case, though. Arbitrator Richard Mittenthal provided this common definition: It is "a course of conduct that is (an) understood and accepted way of doing things over an extended period of time, and thus mutually binding and enforceable."

Evidence of a past practice is commonly used in contract disputes for several reasons.

1. To give specificity to a general contract term. For example, most contracts require that an employer have "just cause" to discipline an employee. While there's a common enough understanding of that phrase, how it has been used in this particular workplace - the practice - will best demonstrate what the term means in this particular CBA.
2. To demonstrate that a stand-alone practice is an implied term of the contract even if the CBA is silent on that practice. Let's say an employer offers a benefit to employees that is not in the contract. For example, a bakery allows its employees to eat baked goods as long as they are not consumed in the manufacturing area, and provides coffee in the breakroom. Most employees rely on this for their breakfast or lunch breaks. The employer decides to cut costs by eliminating this benefit during the term of the agreement. This would be a past practice that has become an implied term of the CBA even if there was no language about it.
3. To clarify an ambiguous term or contract provision. The most common example of the use of past practice in this situation is to determine what is meant by a word or phrase that has been relied on in the past, such as the word "day" or "week." While those may seem like obvious to understand words, a dispute might arise if one party asserts that a day is a "work day" and the other asserts it is "calendar day," for example. How the word day has been interpreted in the past would be past practice evidence.
4. To fill a gap in the agreement. Imagine a CBA provision that determined shift scheduling for "full-time employees" but was silent as to "part-time employees." The past practice would be helpful for determining shift scheduling for employees about whom the contract is silent.
5. (and rarely) To modify the agreement. Typically a CBA cannot be modified during the term of the agreement without the consent of the parties. There are occasions, however, such as a change in the law, which create a practice that is antithetical to or modifies the agreement.

Evidence of a past practice will not alone control the arbitrator's interpretation of the CBA. Remember, the clear and unambiguous language of the agreement will always control. Past practice comes in handy when the language of the CBA is not clear and unambiguous, or when (as noted above) there is no language for the arbitrator to look at for resolving the dispute.

So how do you prove that a past practice exists. Let me take apart Arbitrator Mittenthal's definition to show you:

There's a course of conduct = what the employer or employees have done, and specificity is required. No impressions like, "I think . . . it's my understanding."

That is understood and accepted = Both parties know what the specific conduct or practice is and allow it to continue.

over an extended period of time = the practice needs to be long-standing and repetitive. You need to show that the practice occurred every time the occasion arose to use it. It can't be sometimes, it must be always.

If you can show those components, the practice is likely to be mutually binding and enforceable. The practice can be shown with witnesses but is even more evident in documents. For example, if payroll records show that an employer always paid overtime for a sixth day of work regardless of whether the employee had worked the prior five days, that is strong evidence of a past practice.

Okay, that's the basics. Let me know if you have any questions. I will write more about past practice in my next newsletter. While there's plenty more to say, I am happy to address specific questions that readers might have!