PAST
PRACTICE While
there is no universal definition of what constitutes a past practice, most
arbitrators will ask themselves the following questions in attempting to
determine if a binding practice exists in a given factual situation. If you get
‘YES’ answers to questions 1, 2, 3, and 4 and a ‘NO’ answer to question
5, a valid past practice probably exists. 1.
Has the practice been in effect for a considerable length of time? Take
into consideration both the number of times the past practice has occurred and
the length of time over which the event has occurred. In general, a practice
must have been in effect for a period of time that was long enough for the
parties to reasonably believe that the situation would be handled in the same
way in similar circumstances. (One or two occurrences would not generally be
considered a past practice.) 2.
Is the alleged practice a consistently applied response to a given factual
situation? This
does not mean that an isolated exception will “wipe-out” a past practice. If
the parties have generally come to believe that a certain set of circumstances
will result in a specific outcome, the consistency test has been met. 3.
Is the practice considered a real benefit and not a gratuity? This
is a matter of judgment. However, if the employees can show an economic gain
from the practice, it probably will be viewed as a real benefit. 4.
Can the practice be shown to have been mutually accepted by the parties
(either openly or tacitly)? This
requires a showing that both parties were cognizant of the practice and accepted
it. Acceptance may be implied from long acquiescence. 5.
Does the practice conflict with specific language in the Agreement or with
specific language in the law? If
the Agreement or law clearly prohibits a specific act, the practice is not
considered valid.
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