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.
- the express or implied consent of responsible management.
Let's look at the four 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.
- Consistently practiced over an extended period of time. Unfortunately, there is no precise answer to what "consistently" means and how long is "an extended period of time." What you might look at is, "Did the practice occur 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 is a past practice. Further, a practice occuring 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.
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.