Past Practice and Bargaining
A few weeks ago, I wrote a Quick Primer on Past Practice. Obviously, my focus was on how arbitrators consider past practices and their application to the collective bargaining agreement. The parties may wonder, however, if they are saddled with their past practices forever, and the answer, of course, is no. I thought I would discuss how past practices go away.
The first and most obvious way that past practices can go away is that the parties stop the practice, either gradually or abruptly, and the other party does not object. In that case, there is mutual agreement, either explicit or implied, to have a different practice. For example, in a CBA that requires grievances to be filed within 10 days of discipline, the parties' practice had been to treat "days" as calendar days. However, over several instances, the union files their grievances 10 work days after discipline, and the employer does not object. Ten workdays is longer than 10 calendar days, owing to weekends and holidays. The practice shifts and neither parties object; the old practice is gone.
In other cases, one party, usually the employer, gives notice that they intend to end a particular practice, and the union does not object. If they did object, we assume they'd file a grievance, and whether the practice continued would be up to the arbitrator. The most certain way for one party to end a practice is to repudiate the practice in bargaining, declaring that they no longer intended to continue that practice once the new agreement is executed.
Sometimes the party which wishes to extinguish the practice identifies the specific practice that they no longer intend to follow, such as, "following the execution of this CBA, we will no longer pay overtime for a sixth day of work unless an employee worked all five of their assigned work days." On other occasions, an employer will propose a "zipper clause" which "zips closed" the contract once it is signed, that says, essentially, "this clause ends all past practices prior to the current CBA, whether we've identified them or not."
Beware, however: If the parties continue a practice even after a zipper clause has been included in a CBA, that past practice springs back to life for the next term of the agreement. For example, if an employer who has obtained a zipper clause nevertheless continues to pay overtime on a 6th day even to employees who were sick in one of their prior five scheduled days, they have revived the practice and cannot eliminate it without bargaining.
Most unions and employers anticipate that a new CBA will require a different approach to an unsatisfactory past practice. A good bargaining tool for either side is to identify all the past practices before bargaining and then crafting proposals to add to the contract that incorporate, modify, or eliminate that practice.
My apologies for the short post but I'm heading out on vacation today. As always, let me know if there are any topics you are interested in.
