To prove that a course of conduct is based on mutual agreement, the union must establish that it satisfies five requirements: longevity, repetition, consistency, knowledge and acceptance.
Next the practice must be analyzed based upon its relationship to the contract. There are three categories as summarized below, each of which has different rules:
- Clarifying Practices. Clarifying practices implement terms in the contract whose meaning is unclear or general. Clarifying practices are always viewed as mutual agreements.
- Free-standing practices. Free-standing practices — also known as independent practices — relate to subjects about which the contract is completely silent. Free-standing benefits are usually considered mutual agreements. Free-standing methods of operation are usually viewed as subject to change.
- Conflicting practices. Conflicting practices contradict clear contract language. Conflicting practices are not considered mutual agreements unless the parties adopted the practice to amend the contract or the employer has used the practice to induce the union to alter its bargaining position.
Proving a Practice
The factors cited most frequently as necessary for a part practice are longevity, repetition, consistency, knowledge and acceptance.
- Longevity. Under the longevity standard, a past practice must occur for a reasonably long period of time. A period of three or more years is usually required but a shorter period may be sufficient in particular circumstances. In the case of a free-standing practice, the conduct must bridge the current bargaining agreement and its predecessor.
- Repetition. To meet the test of repetition, a past practice must be followed on several occasions and affect more than one employee. If the conduct has occurred on only one occasion, or has affected only one employee, an arbitrator is unlikely to imply a union-management agreement.
- Consistency. A past practice must be consistent. Total compliance is preferred, but an arbitrator may be satisfied if the conduct follows a predominant pattern (for example, a practice that’s applied more than 75% of the time).
- Knowledge. A course of conduct does not have to be discussed between the parties, but upper-level management and union officials must be aware of its existence. If either side is ignorant, the practice is not bona fide.
- Acceptance. Past practices must be accepted by the parties. Explicit endorsement is best, but it is often said that a party consents to a practice if it allows it to continue without objection. If a party consistently complains about a practice, the acceptance test is not satisfied.
Adapted from Schwartz, Robert M.. How to win past practice grievances. 3rd ed. Cambridge, Mass.: Work Rights Press, 2007. Print.