Employment past practices: Binding or not?

Unions frequently submit grievances against employers claiming the employer violated a collective bargaining agreement (CBA) by changing and failing to follow a “past practice” without getting agreement from the union before taking the action. In pursuing these grievances, unions usually assert that a past practice is binding on an employer because it establishes an implicit agreement on the terms and conditions of employment not contained in the CBA or amends the terms or conditions contained in the CBA.

In order to be binding, a practice must be: 1) clear, 2) consistently done in the past, 3) mutually accepted by both the employer and the union, 4) not contrary to clear and unambiguous language in the CBA, and 5) a major term or condition of employment. If one or more of these elements are not present, then a past practice is likely not binding on the employer nor the union. In that case, an employer may unilaterally change or refuse to follow such practice. If all of these elements are present and the employer desires to eliminate or change the practice, then the employer may only do so under certain circumstances.

Generally, an employer may change or eliminate a past practice without getting agreement from the union by doing one of the following:

  • Providing notice to the union employees before the expiration of a CBA of its intent to change the practice following the expiration of the existing CBA;
  • Changing the practice because the underlying basis for the practice has changed or been eliminated; or
  • Denying a demand by the union to incorporate language on the practice into the CBA during negotiations for a new CBA.

An employer’s authority to change or eliminate a past practice is bolstered if the CBA contains “Zipper” and “Waiver” clauses, which basically provide that the CBA contains all terms and conditions of employment, any matters not addressed in the CBA are in the authority of management to establish, eliminate or modify and the parties waive the right to negotiate over any matter not addressed in the CBA.

A past practice may always be changed or eliminated if the employer and union agree in writing to change or eliminate the practice.

Employers should be aware that determining whether a practice is binding and whether an employer effectively changes or eliminates a binding past practice is based on the circumstances of a specific case and employers should therefore consult legal counsel regarding these issues.

For more information on this issue, contact Brandon Fitzsimmons.

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