Past Practice

njjel

Help is needed from all of you with unions. If an issue was handled in a certain way 7-10 years ago and never came up since, is that still considered "past practice" in the union sense?

mdm

My understanding of past practice, (and I could be wrong) is that it starts when the union agreement starts. So I guess my answer to you is no. You may want to check with your attorney regarding this issue.

System

From the very practical view, just because something was done a certain way years ago, it does not mean you are bound to that method forever. Management has the right to change the way things are done as long as it is applied consistently without regard to bias for a reason that is illegal. I imagine that you've ratified a new contract in 7-10 years and the issue was not a matter for bargaining. In that case, it's a matter for management. Easier said though. I'm finding that nearly everything is 'grievable.'

By the way, what's the issue?

Whatever

I find the union claims "past practice" only for what is helpful. In any case, management has the right to change procedures that are not part of a contract and the union has the right to file a grievance and threaten arbitration. However, if you give notice in writing in advance to all the ees, the best the union can do is try and raise the issue at the next negotiation and management can refuse to
discuss it.

HRLASS

Theoretically no, but we have frequently had the union bring up past practices from 15+ years ago (and we therefore stretched our relevant record retention accordingly). It can be frustrating and annoying, but it's not actually avoidable.

Hunter1

[font size="1" color="#FF0000"]LAST EDITED ON 09-07-05 AT 04:00PM (CST)[/font][br][br]Past practice is an open and consistent course of conduct. In order for it to be open and consistent, BOTH parties to the agreement have to know it's going on. HRLASS is absolutely correct; theoretically, this isn't a past practice since it apparently occurred once so long ago, but that won't keep the union from grieving it. You should win, though.

Edit: UNLESS there's clear contract language which defines the expectation, it was just never applied. In that case, the clear contract language may trump the past practice.

LivindonSouth

[font size="1" color="#FF0000"]LAST EDITED ON 09-08-05 AT 07:45AM (CST)[/font][br][br]All those logical answers aside, a union will dredge up 'past practice' anytime they have any scintilla of knowledge whatever indicating that you did or might have done one certain thing in the past, no matter how the past is defined or how distant it might be.

The only reason to cite 'past practice' is to convince an arbitrator or an NLRB judge. You cannot count on a union to observe any particular rule on this subject. You cannot cry foul. Count on them to introduce this argument no matter what.

(edit) As a personal experience, here's an example. I sat through a week long, 10 hour day NLRB trial four years ago regarding the termination of a steward for walking off the job and out of the plant without permission. During that trial, and we anticipated this, the union attorney (NLRB) presented specific evidence going back almost 20 years where people had not been terminated for doing essentially the same.

Dictionaries and HR logic aside aside, "past practice" is whatever the union and the arbitrator or judge want it to be. The employer is at the mercy of the judge and the memory of others.

WT

There are a number of elements commonly looked at for past practice. It must be notorious. In other words it must be out in the open and known about by management and employees. Somebody sneaking and getting away with with something, even if over a long period of time, does not a past practice make. It must be of long duration. This means it must have happened consistently over a long period of time if a common practice, OR HAVE BEEN DONE THE SAME WAY EACH TIME THE SITUATION CAME UP IF AN UNCOMMON PRACTICE. This is crucial for your case. Has this issue come up other times and been handled other ways? Further, in a case where it does not come up often, the management person who authorized the action must be of high enough rank to set policy. Thus, if a lower level manager did a favor for an employee, and upper management does not agree, arguably there was no past practice established. There must be a "reasonable expectation" on the part of the employees that this practice would continue.

HRLASS

This is the reason why, if you make any settlement with the union, you include a clause saying that the conditions of the settlement are "not precendential" and cannot be used in relation to future issues. You can't force an arbitrator or administrative law judge to include it, but if you settle, make sure that clause is in!

LivindonSouth

....not what?

WT

This settlement is without prejudice or precedent. That means it is a one time thing and does not bind future decisions.

LindaS

I run into the same issue with our union on numerous occasions. Your best course of defense would be to ensure that you are handling issues consistently as they occur. Union representatives are notorious for dredging past issues EVEN IF you have agreed that a certain settlement is non-precedent setting and/or the issue was negotiated differently in a contract situation.

For instance, we have a current situation with an EE who was out on a medical LOA (she had previously used all her FMLA) and was unable to return within the 3-month timeframe as designated in the contract. When she did return she was on restricted hours and was not working enough hours to be considered FT within our health insurance plan. Per the instructions of our TPA she remained on COBRA until she was able to work the minimum number of hours. We are currently in the process of going to arbitration over this even though the contract specifically states that the longest length of time an EE can be maintained under our insurance before going on COBRA is 3-months. This was negotiated back in 2000 and the union is brining forth issues from the early 1990's even though we have been very consistent in this application since it was negotiated.

This just goes to show that union representatives have long memories and no matter how hard you try, they will bring up long ago issues if it suits their needs.

Be consistent, document and hope for the best if issues go to arbitration.