Ferry Agents, Supervisors & Project Administrators Assoc. v Washington State Ferries, May 31st, 2018

The phrase “past practice” is often taken to mean that something happened, or was done, in the past. While this might seem logical, in the labor relations context, the term “past practice” is a specific concept; one that’s not typically well understood and is often misinterpreted or misused. A proper understanding of past practice and its implications is critical for practitioners who must successfully navigate workplace changes that might affect an established practice.

This case highlights the tremendous impact a true past practice has on the labor-management relationship. When full-time supervisors represented by the Union requested occasional compensatory or vacation days off, the Employer first assigned full-time relief supervisors, and then on-call supervisors drawn from non-supervisory employee groups. On-call supervisors spent up to 85% of their time filling shifts and full-time supervisors were able to use their accrued leave time without issue. On-call supervisors received the benefits of higher pay rates while assigned and gained valuable supervisory experience to which they would not otherwise have access. The parties’ collective bargaining agreement did not specifically require on-call supervisors be assigned, but it also did not preclude their assignment. In 2016, the parties negotiated significant changes to the leave provisions, including an increase to the minimum number of slots available for single-day leave by supervisors each week. A few months after the changes were implemented the Employer, facing a budget shortfall, became concerned about the additional costs incurred by using the on-call supervisors.

The Power of Perspective
From management’s perspective, eliminating the use of on-call supervisors for the purpose of covering time-off requests was a logical cost-cutting measure. Management notified employees via email that single-day leave requests would henceforth be granted only to the extent relief supervisors were available to provide coverage. When the Union asked the Employer not to move forward with the change until the parties had a chance to discuss it the Employer agreed, and the parties met on two occasions but could only “agree to disagree”. Believing they had given the Union sufficient opportunity to have their concerns heard, the Employer implemented the change and instructed that on-call supervisors were “…not to be used to grant additional days off beyond what the contract allows.” Given the budget constraints, the Employer believed it was reasonable to restrict the use of on-call supervisors to the number of slots guaranteed by the contract. It deemed the action to be consistent with the terms of the contract and therefore permissible.

From the Union’s perspective, the Employer gave no indication it intended to change the way it managed leave requests. The Union had understood through its discussions with management that the Employer was continuing to administer the shift coverage as usual. After learning of the Employer’s communication to employees, the Union immediately stepped in, but it was clear perspectives on both sides of the table were different and no agreement could be reached. The Union held that, even though the contract did not require the Employer to use on-call supervisors to fill shifts, they had been doing it that way for as long as most union officials could remember. More than that, the change could negatively impact the membership: access to leave could be restricted, as could the ability of employees to earn extra money by picking up those shifts. These were significant issues, mandatory subjects of bargaining, and not ones on which the Employer had the right to deal directly with employees. 

The Power of Process
At hearing, the Union was able to establish that the original approach had been consistently used for at least the last 16 years, and the Employer agreed this was the case. The Union was also able to demonstrate that, following the change, its members enjoyed significantly reduced benefits: supervisors used about 40% fewer leave days and a significant number of leave requests were being denied where supervisors previously had no trouble using their leave. While the Employer’s intent was to meet its budgetary needs, the arbitrator determined that “…employees’ interests in wages and ability to use leave outweigh the employer’s managerial prerogative.”

The Employer argued that the Union waived its right to bargain the change when it agreed to other leave changes in the most recent round of bargaining. However, nothing in the negotiations record indicated the subject was ever a topic of discussion. Noting that “…the employer did not bargain in a way that would have put the Union on notice of its intent to significantly change the past practice…”, the arbitrator found that the Employer had committed an unfair labor practice by failing to bargain in good faith with the Union and unilaterally changing terms of a mandatory subject of bargaining. The Union prevailed.

The Power of Practice
So what, exactly, is a past practice and how does it affect the labor-management relationship? In general terms, a past practice demonstrates how parties to a collective bargaining agreement have chosen to conduct a particular aspect of their relationship.
There are a certain elements required to establish that a past practice exists:

• The activity must involve some sort of benefit in wages, hours or working conditions.
• The activity must be deliberate and consistently performed given a particular set of circumstances. Actions taken in error will not be deemed a past practice. Where different actions are taken in similar circumstances, this will not be sufficient to establish a past practice. This is known as a “mixed practice” and is typically not binding on the parties.
• The activity must have occurred over an extended period of time. There is no hard and fast rule for how long a practice must have been in existence in order for it to be binding, since it will largely depend on the nature of the practice and how it is administered. Isolated or occasional occurrences do not a past practice make. For example, two years of free Thanksgiving turkeys is unlikely to rise to the level of a past practice, while two years of allowing employees to access their bi-weekly paycheques prior to payday could. 
• The activity must have been known to, and accepted by, both the Union and the Employer.

A past practice will not be found within the pages of the collective bargaining agreement. It can  define or clarify existing language that is unclear or ambiguous, in that it demonstrates the parties’ understanding of the terms of the contract and their implied agreement that this understanding is correct. However, a practice which is clearly contrary to the express terms of the collective bargaining agreement will generally not be upheld at arbitration.

It is easy to lose sight of the true implications of an established practice; the activity is often so entrenched in the parties’ relationship that it’s barely noticed until something needs to change. In fact, it has been said that the nature of a past practice is such that it’s simply unnecessary to include it in the collective bargaining agreement because “everybody knows this is the way we’ve always done it”. In a later post, we’ll discuss in detail how to determine whether a past practice truly exists and how to navigate changes to an established practice. For now, it’s important to remember that a past practice cannot be changed without prior notice and bargaining because the parties have tacitly agreed to conduct themselves under those terms and must continue to do so until there is a mutual agreement to do otherwise.

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