Past Practice

A "past practice" is nothing more than the way things have been done. Such practice does not have to be written down in a collective bargaining agreement, but can arise on the basis of regular, repeated action, or inaction by management.

Generally, the existence of the following four factors will indicate that a "past practice" exists:

The practice was clear and applied consistently.
The practice was not a special, one-time benefit or meant at the time as an exception to a general rule.
Both the union and management knew the practice existed and management agreed with the practice or, at least, allowed it to occur.
The practice existed for a substantial period of time and occurred repeatedly.

Management cannot unilaterally change an established and accepted "past practice" if the practice is not contrary to law or government-wide regulation. Rather, management must notify the union if its intent to change a practice and to bargain over the proposed change. If the "past practice" is contrary to law or government-wide regulation, however, management may unilaterally change the practice without bargaining either the decision to change the practice or the practice itself. Management is obligated to provide notice to the union about the change to give the union an opportunity to negotiate the impact the change may have on bargaining unit employees.