A past practice is defined as an existing practice sanctioned by use and acceptance, that is not specifically included in the collective bargaining agreement.
For a past practice to be found, the following conditions must be present:
- the practice must be a condition of employment;
- which has been consistently practiced over an extended period of time;
- with management's knowledge; and expressed or implied consent.
Let's look at the three factors in determining whether a certain matter is a past practice:
Condition of Employment.
The first consideration is whether the matter is a condition of employment. Conditions of employment are personnel policies, practices and matters affecting working conditions. If a matter is not a condition of employment, there is no obligation to bargain over it. Over time, a condition of employment can become a past practice, but simply because something has happened over time does not necessarily make it a condition of employment. That is, if a certain action is not a condition of employment, consistently performing that function, even over a protracted length of time, does not make it a condition of employment and, thus, subject to bargaining. For example, if employees have been swimming in the installation lake after work for the past three years, swimming in the lake would still not be a condition of employment since it does not relate to working conditions. As such, management could terminate the practice without first bargaining over the change.
Consistently practiced over an extended period of time.
Unfortunately, there is no precise answer as to what "consistently" means and how long is "an extended period of time." What you might look at is whether the practice occured most of the time. If something occurs on a daily basis, a past practice will occur sooner than for something that happens only quarterly. For example, the daily use of microwave ovens in a break room for five months would be a past practice. Further, a practice that occurs only five times in a year may or may not be a past practice. If the condition leading to the event happened only five times, then the practice occurred every time the event occurred. For example, if management responded orally to all five grievances filed within a year, oral responses may be a past practice. On the other hand, if it responded orally to five of the fifty grievances filed, then that wouldn't necessarily be a past practice. In this issue, common sense will probably be the best guide.
Management's knowledge and express or implied consent.
This is not a formal acknowledgment by management of the practice. Rather, it is merely an awareness that the event is occurring with no action being taken to terminate it. By not stopping the condition, management is, in essence, consenting to it.
Of course, whether or not a practice has ripened into a past practice will have to be judged on its individual merits. Such decisions are made on a case-by-case basis.
Past practices can occur that contradict terms of the negotiated agreement. For example, if the negotiated agreement provides that employees may not eat at their desks. However, for the last year, supervisors have not stopped employees from eating at their desks. This would likely be found to be a past practice and supersede the contract language.
Normally, supervisors cannot unilaterally stop an established past practice. Rather, they must give the union notice of intent to terminate or modify the practice and afford the union an opportunity to bargain, if requested. The proposed change to the past practice cannot be implemented until negotiations have been completed. One exception to this is if the past practice is illegal. In that case, the practice must be stopped immediately, the union given notice of the change, the reason for its immediate termination and an opportunity to bargain over the impact and implementation of the change.