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SAGINAW (MI) FIREFIGHTERS
LOCAL 102
SAGINAW (MI) FIREFIGHTERS LOCAL 102 |
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Past Practice—Actions Can Speak Louder Than Words in Enforcing Collective Bargaining Agreements By Ron R. Helveston, Legal Counsel MPFFU Magazine, Winter 2002
Introduction
The facts in the Garden City case are as follows: Forty hour employees of the City had been allowed to take designated holidays off of work and still receive their regular pay and holiday premium for twenty-nine years. If the holiday fell on a week-end, the employee would be able to take the nearest weekday off, either Friday or Monday. The City appointed a new City Manager who, upon reading the contract for the first time, decided that the practice was inconsistent with the contract language, and ordered the forty hour employee to work the next holiday or to use vacation or personal time if he/she wanted it off. The Union grieved the change, which culminated in arbitration.
Elements of a Past Practice During the arbitration, the Union had the burden of proving that the past practice rose to the level of a binding practice. Generally speaking, in the absence of a written agreement, a “past practice” to be binding on both Parties, must be (1) unequivocal;(2) clearly enunciated and acted upon; and(3) readily ascertainable over a period of time, and (4) mutually agreed upon by both Parties. All of these elements are necessary in order to show a past practice.
Unequivocal To be unequivocal, a claimed past practice must have few, if any, exceptions. In the Garden City case, the practice had been repeated over 400 times throughout the twenty-nine year period without exception. If exceptions do exist, the Union should be prepared to explain them—perhaps the exceptions were without the Union’s knowledge, or arose only under extreme emergencies.
Clearly Enunciated And Acted Upon Past practices must also be clearly enunciated and acted upon. In the Garden City case, the practice was clear that forty-hour employees did not have to work on designated holidays. The parties had in fact not required forty-hour employees to work on designated holidays for twenty-nine years.
Readily Ascertainable Over A Period Of Time A past practice must be readily ascertainable over a period of time. An employer’s handling of a situation one way at one time will not give rise to a past practice. A re-view of arbitration decisions reveals that most past practices re-occur frequently over many years. The Garden City case involved a practice that had occurred repeatedly over twenty-nine years, however, past practices can be of a much shorter duration and have been found in cases where the practice was in place less than a few years. An exception to this rule may arise where a past practice is such that it is incapable of frequent repetition. For example, a claim that there is a past practice for a special holiday routine on Christmas is obviously incapable of being repeated more than once a year.
Mutually Agreed Upon Perhaps the most complicated (and sharply contested) element of past practice is that it be mutually agreed upon. Ideally, this mutual agreement would be shown by proof of actual negotiations. More often, however, practices just sprout up in the day-to-day administration of the contract, for example, in the Garden City case the par-ties began the practice upon implementing a forty-hour position in the department. The language of the contract did nonspecifically state that forty-hour employees received designated holidays off. In these cases, arbitrators will often presume that a practice has been agreed upon if it has occurred over a long period of time without complaint from either party. Arbitrators in these cases will often speak of” implied” or “constructive” agreement. Occasionally, an employer will claim that it had no knowledge at all of a claimed past practice. In the Garden City case, the City attempted to argue that the new City Manager had the right to interpret the agreement as he read it and should not be bound by the parties’ long-standing practice. The Union correctly argued that “past practices are evaluated by the relationships between the institution and the employees, not based on the individuals.” If the City’s position were upheld, an employer could void past practices every time it changed labor relations personnel. The Arbitrator agreed, finding the practice binding on the City. Granting the grievance, Arbitrator Kahn concluded: The practice of granting holidays off to forty-hour employees is a condition of employment that has continued for twenty-nine years. During that time, many agreements have been renegotiated. The Employer had the opportunity to bargain to change—either to modify or revoke—the practice but it did not. Both parties appear to have regarded the allowance as an ongoing element of the forty-hour employee’s holiday entitlement.
Also, some arbitrators will permit employers to police against claimed abuses of a recognized past practice. For example, de-spite a past practice of freely trading shifts, the Chief may be able to make limitations to secure enough qualified paramedics torn the rescue. It should also be noted that a so-called “maintenance of conditions” clause may render an arbitrator more willing to grant grievances on “gap-filling” past practices. Such clauses usually take the following form: Conditions of employment existing at the commencement of this contract shall not be changed unless expressly agreed between the parties or modified herein.
The final and most controversial use of past practice is to vary the clear terms of the contract. Generally, past practice can-not be used to change clear contract language. The main exceptions to this rule occur when the contract clause is itself a mistake (typographical error, omitted paragraph, etc.), or when the parties truly in-tend their practice to amend the contract. In these rare circumstances, a longstanding practice has been held to trump clear con-tract language. Many arbitrators will also require a party who intends to rely on con-tract language which is at odds with a past practice to give prior notice that the con-tract will be enforced.
Summary This overview of past practice is not and cannot be exhaustive. Indeed, whole books have been written on the subject. Hope-fully, this short overview will assist you in better understanding the value and limits of past practices for your Union. Happily, the Garden City Fire Fighters Union learned that the value of past practices cane substantial.
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