Solving the "Past Practice" Conundrum

By Ruben, Alan Miles | Labor Law Journal, Summer 2018 | Go to article overview

Solving the "Past Practice" Conundrum


Ruben, Alan Miles, Labor Law Journal


Among the arcane concepts1 embedded in labor contract jurisprudence, none has proved more controversial than "past practice."

"Past Practice" has been defined in one frequently cited source as: "a pattern of prior conduct consistently undertaken in recurring situations so as to evolve into an understanding of the parties that the conduct is the appropriate course of action.2

Similar definitions in common use include that formulated by the late Sylvester Garrett while serving as Chairman of the Board of Arbitration for U.S. Steel and the Steelworkers Union.3

"A custom or a practice is a usage evolved by men as a normal reaction to a recurring type situation. It must be shown to be the accepted course of conduct characteristically repeated in response to the given set of underlying circumstances."4

Examining these definitions, one might conclude that a "past practice" is simply an agreement manifested by the conduct of the parties rather than by their oral or written communications. However, every definition of the term deliberately avoids interpreting a "past practice" as an "agreement."

This article examines the rationale behind this refusal, and concludes that a "past practice" should be considered as an enforceable agreement of the parties.

The "past practice" concept occurs in three contexts. The first of these raises no significant controversy:

"To provide evidence as to the appropriate meaning of an ambiguous provision of a labor contract."

Here, the past practice of the parties evidences their mutual understanding of the disputed term. What the parties have consistently done in the past in interpreting and implementing an ambiguous contract provision constitutes persuasive evidence as to their mutual understanding of its meaning.

The two other uses of a "past practice" run into difficulty.5 The first of these seeks to add a term to a written collective bargaining contract. The problem is that the written contract is usually considered to represent the entire understanding of the parties.

The second attempts to amend or contradict a provision of the written collective-bargaining agreement. The majority arbitral view seems to be that a "practice" is impotent to eliminate or modify a provision of the written Agreement. Any such change or elimination can be accomplished only by a written, duly signed memorandum. …

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