THE POLICY THAT WOULD NOT DIE. The “terror” of past practice A Stewards Halloween Story. STEWARDS COUNCIL TRAINING. Enter if you dare!. Manager’s Lament. “Every time I try to make changes, the UPE steward says I have to follow past practice”. Those old practices rise up.
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The “terror” of past practice
A Stewards Halloween Story
“Every time I try to make changes, the UPE steward says I have to follow past practice”
So what is a “Past Practice?”
THE SUPREME COURT ON PAST PRACTICE
The Supreme Court explained the legal status
of past practice in 1960:
The collective bargaining agreement covers the whole employment relationship. It calls into being a new common law -- the common law of a particular industry or of a particular plant... [T]he industrial common law -- the practices of the industry and the shop -- is equally a part of the collective bargaining agreement although not expressed in it.1
A past practice based on a mutual agreement between the parties is part of the contract. If the employer ignores, departs from, changes or eliminates the practice, the union can grieve it.
Your first step is to confirm that the conduct satisfies the threshold requirements:
Next you must determine which of three types of practice you are looking at. The categories are clarifying practices, independent practices, and conflicting practices.
I. Clarifying Practices - implements general or ambiguous contract language.
II. Independent Practices -relate to subjects not covered by the written agreement. An independent practice usually involves a worker benefit, such as free parking.
Rarely, there is a 3rd kind of past practice - Conflicting Practices. Consult with your Business Agent before filing on this type.
III. Conflicting Practices- Conflicting practices contradict language in the written contract. A conflicting practice is usually not considered a mutual agreement. However, exceptions arise if the practice is intended to amend the contract or if the practice causes a party to alter its bargaining demands or otherwise change position to its detriment.
Grievances to enforce clarifying practices have the strongest legal standing.
Grievances to maintain independent practices depend on the nature of the practice.
Grievances to enforce conflicting practices are the most difficult to win. Remember: Not all past practices are contractually binding!
Work together in a small group to bat around answers to the quiz!
One last reminder: Even if a change is permissible, the employer may have to meet with the union over the impact of those changes.