"Past practice" has to be one of the most misused phrases in labor relations, seldom used correctly by labor or management. In the past three months, the Bureau of Mediation Services has published a trifecta of arbitration decisions which spell out how to effectively break a past practice, how to establish that one exists, and how a past practice applies when the labor contract is silent.
In a City of Duluth case, Arbitrator Befort ruled in favor of the Employer in a case concerning standby pay. The Union argued there was an established past practice to pay travel time as part of standby pay. The Employer argued they provided clear notice to the Union they were ceasing the practice of paying travel time, and provided the Union with the opportunity to engage in bargaining over the decision. In the award, Arbitrator Befort sets out a nice primer on how to properly break a past practice when the contract is silent. He noted, 1) the Employer advised the Union of its intent to alter the practice following the expiration of the contract, 2) the Employer indicated a willingness to engage in negotiations over the topic, and 3) the Union failed to address the issue during the 2013 round of bargaining.
In an Isanti County case, past practice was again argued. But this time the Employer claimed the existence of a past practice to deny holiday pay to officers in a non-work status, who were receiving worker’s compensation benefits. Arbitrator Jacobs agreed with the Employer and indicated there was a 20 year history and practice of not paying holiday pay while the employee is off work on an injury.
Finally in the third case involving past practice, Arbitrator Beens ruled in favor of the State of Minnesota. The labor agreement provided the State would provide safety boots for 950 employees, but did not specify the amount that would be paid by the State. Instead, the State relied on a policy and a long-standing past practice to reimburse $125.00 for the cost of each pair of safety boots. The Union argued this amount was insufficient to cover unique sizes and specific boots sometimes needed by the employees. Where the contract was silent, Arbitrator Beens found a 20 year reimbursement policy raised the issue of past practice, and applied the classic standard test of: 1) clarity and consistency; 2) longevity and repetition of the activity; 3) acceptability of the pattern; and 4) mutual acknowledgment of the parties.
These three arbitration awards in less than three months are a trifecta for Employers on past practice. Employers with unionized workforces would be wise to review these three arbitration decisions, and use them as an instructional primer for future past practice issues.