Labor arbitrators have long recognized that the relationship between unions and employers extends beyond the written words of their collective bargaining agreements. One of the most important unwritten elements is past practice - the established patterns of workplace conduct that can become as binding as the contract itself. Let's explore how this doctrine works in practice.

Understanding the Core Elements

For a workplace routine to become a legally enforceable past practice, arbitrators typically require three foundational elements:

First, the practice must demonstrate clarity - meaning it has been applied uniformly and is readily identifiable. Second, there must be consistency - a repeated pattern of similar conduct over time. Third, both parties must have accepted the practice, either through explicit agreement or tacit understanding shown through their conduct.

Evidence matters significantly in establishing these elements. Rather than relying on general assertions about "how things have always been done," successful past practice claims require specific documentation showing repeated instances of the practice and both parties' acknowledgment of it.

The Critical Management/Benefits Distinction

Perhaps the most important principle in past practice analysis is the distinction between employee benefits and basic management functions. Arbitrators generally treat practices involving direct employee benefits - like break times, vacation scheduling, or bonuses - quite differently from those involving operational decisions like production methods or staffing levels.

This distinction stems from the recognition that while employee benefits can reasonably become fixed through practice, management needs flexibility to adapt operational practices to changing business conditions. Therefore, a practice of providing a particular employee benefit is much more likely to be deemed binding than a practice involving how work is assigned or performed.

Relationship with Contract Language

Past practice plays two distinct roles in contract interpretation. When contract language is ambiguous, arbitrators often look to established practices to understand what the parties intended. Here, past practice serves as a lens for interpreting unclear terms.

However, when contract language is clear and unambiguous, most arbitrators will not allow past practice to override it. The exception comes when there is compelling evidence that both parties consciously agreed through their conduct to modify the clear contract terms. This is a high bar to meet.

Evolution and Change

While past practices can become binding, they aren't necessarily permanent. Several circumstances may justify modification:

A fundamental change in the underlying conditions that created the practice
Explicit agreement through collective bargaining to modify the practice
Clear notice at contract expiration that one party will no longer honor the practice
Evidence that continuing the practice would create significant operational problems

However, unilateral changes to established practices - especially those involving benefits - carry significant risk. The preferred approach is addressing desired changes through negotiation.

Practical Implications

For labor relations professionals, several key principles emerge:

Maintain clear records of workplace practices, including specific examples of how and when they've been applied. Consider carefully whether current practices might become binding precedents. Address problematic practices through negotiation rather than unilateral action. Remember that past practices can help fill gaps where contracts are silent.

Also recognize that as technology and workplace conditions evolve rapidly, analyzing past practice becomes more complex. What constituted a binding practice in a traditional workplace may need reconsideration in remote or hybrid environments.

Looking Ahead

Understanding past practice remains essential for effective labor relations. As workplaces continue evolving, both unions and employers must balance preserving valuable established practices while maintaining flexibility to adapt to changing circumstances. By understanding how arbitrators analyze these issues, parties can better manage their ongoing relationships and avoid unnecessary disputes.

Law Offices of Brian J. Smith, ltd