GUIDE TO USE OF PAST PRACTICE

As a Steward, it is important that you understand what past practice is and how it can be a useful tool in the grievance and arbitration procedure.

In interpreting the wording, intent and application of contractual provisions, arbitrators may be guided by past practice under the contract.

What is the Definition of a Past Practice?

One definition is that “A practice is a reasonable uniform response to a recurring situation over a substantial period of time, which has been recognized by the parties implicitly or explicitly, as the proper response.”

They are often a customary way, not necessarily the best way, of handling a given problem.  A method of handling a problem cannot be considered a practice if it is only one of several ways of doing it.

The practice must be recurring and deal with the same type of situation.  It must have existed over a substantial period of time.  The lax enforcement of a rule may not constitute a valid practice since there may not be acceptance , either implicit or explicit.  Lax enforcement might nonetheless be used in some cases to build proof of discriminatory or inequitable treatment.

Generally the burden of proof is on the Union to show that the practice in fact does exist.  This is frequently difficult to do, since the Union may not have very complete records and the Employer is able to give evidence of different practices.

If the practice is unclear or conflicting, the arbitrator is not likely to place much weight on it either way.

Of What Importance are Past Practices in Collective Bargaining?

1.                 It can be an aid to the interpretation of ambiguous contract language.

2.                 Even where contract language is clear and agreed practice may modify it.

3.                 Past practice is important in defining jobs and classification lines which may affect layoffs, wages and promotions.

4.                 Under some circumstances a long history of a practice indicates a mutual agreement even though the contract is silent.

5.                 A past practice is not binding and cannot be enforced when it is clearly contrary to the contract.

The validity of a past practice argument can only be determined by complete knowledge of the details of the entire agreement in effect.