FLRA FUBAR: THE PAST PRACTICE “ACQUIESCENCE” MESS
The FLRA has done a lot of good, and it has had moments where it neither helped nor harmed. But there also have been times when it has Fouled Up Beyond All Reason (FUBAR). Its concept of what makes something a past practice is one of its more troubling mistakes for practitioners.
If a union alleges that there is a past practice, FLRA requires that the alleged past practice —
- must be known to management,
- responsible management must knowingly acquiesce in the practice, and
- the practice must continue for a significant period of time. (See AFGE, 65 FLRA 756)
First of all, why is knowledge addressed separately in criteria 1 and 2? If a responsible management official knowingly acquiesces, isn’t it beyond any doubt that management knows about it? We will keep our fingers crossed that the next decision out of the Authority will simplify this. Otherwise, some enterprising advocate or judge will inevitably decide knowledge is addressed in two separate criteria because they are different kinds of knowledge. Please spare us that agony and put criterion 1 to rest.
Now, let’s move to the more intriguing problem with the criteria. What does it mean to “knowingly acquiesce,” as required by criterion 2? It is far, far from being a commonly used expression—and a pretty fair argument could be made that “knowledge” is an assumed property of “acquiescence.”
Here is what the Authority has given us to go on so far. “Knowing acquiescence” occurs when a practice is “followed by one party and not challenged by the other.” (AFGE, 65 FLRA 756) Sounds reasonable, but later in that same case FLRA identifies two forms of acquiescence. The Authority recognizes express acquiescence, “The Authority has described express acquiescence as occurring when management gives express consent to a practice.” That sounds right, but isn’t that also a meeting of the minds or more formally an agreement—whether it be oral or one party demands it be put in writing? If express acquiescence is to survive, FLRA owes it to practitioners to explain how it differs from the more well-known concepts of agreement or a meeting of the minds.
The Authority also recognizes implied acquiescence, “Implied acquiescence is characterized as management’s consent to a certain practice, given its knowledge of the practice, by failing to challenge it in a significant manner.” That definition appears substantively identical to how the FLRA defined the overall concept of knowing acquiescence, namely, “followed by one party and not challenged by the other.” (Moreover, isn’t this an admission by FLRA that an element of acquiescence is knowledge–as we said above?).
So, wouldn’t it be far easier to state the past practice criteria as:
- Known to a responsible management official,
- Not challenged by management, and
- Continues for a significant period of time?
Coincidently, adopting that test would reflect previous FLRA decisions that equated knowledge with acquiescence:
- In addition, the “open exercise” of a practice, in a location “where representatives of higher management might appear at any time, supports the inference of acquiescence.” (AFGE, 60 FLRA 549)
- The ALJ decided that a past practice had existed for at least a year of permitting employees to eat at the worksite during duty hours. This practice was exercised so openly that management acquiescence was found to have existed. (LIUNA, 43 FLRA 1539)
- Indeed, the Judge found that there was sufficient knowledge at the Mayaquez district level to “make it arguable that the District acquiesced in and is bound by the practices.” (AFGE, 38 FLRA 193)
Adoption of these simplified criteria would also be supported by the many cases that turned on the absence of a challenge to the known practice. (Underlining added below for emphasis.)
- In this regard, a past practice is not binding unless it has been exercised consistently over a significant period of time and followed by both parties, or followed by one party and not challenged by the other. (AFGE, 64 FLRA 1199)
- In order to establish a condition of employment by past practice, there must be a showing that the practice has been consistently exercised over a significant period of time and followed by both parties, or followed by one party and not challenged by the other. (NTEU, 59 FLRA 910)
- Past practices generally include all conditions of conditions of employment not specifically covered in the parties’ collective bargaining agreement, which are followed by both parties, or followed by one party and not challenged by the other over a period of time. (NAGE, 20 FLRA 248)
- In order to constitute the establishment by practice of a term and condition of employment the practice must be consistently exercised for an extended period of time and followed by both parties, or followed by one party and not challenged by the other over a substantially long duration. (AFGE, 9 FLRA 229)
However, in fairness the Authority needs to reconcile the “and not challenged by the other” criterion with cases that seem to reject the idea, such as–
- Also, that a party has not objected to a practice does not, by itself, establish acquiescence. See Marine Corps Logistic Base, Barstow, Cal., 46 FLRA 782, 799 (1992) (finding no acquiescence even though the union did not object to the practice because prior changes to the practice could have met with the union’s approval) (Marine Corps). (AFGE, 65 FLRA 677)
- . . . the laxity in enforcement does not amount to knowing acquiescence in a practice contrary to the policy.” (MTC, 25 FLRA 277. See also NTEU, 13 FLRA 296)
If responsible officials, as opposed to just anyone in management, are aware of an on-going routine and do not object, then why would that routine not ripen into a practice after a significant period of time? What possible policy goal listed in 5 USC 7101 is furthered by making it more complicated?
The Authority owes practitioners criteria that we can use with greater certainty than “knowingly acquiesce.” It is also time to get beyond the casual sprinkling of allegedly synonyms tests such as “tacitly condone,” “impliedly approved,” “clear consent,” “knowingly consented,” “conscious decision,” etc. Focus, please.
The same goes for the “significant period of time” criterion which has alternately been stated as an extended period, sufficient period, and considerable period.
When we say it would be a big help to practitioners administering the concept of a past practice, we mean huge. A quick count shows that the term has appeared in over 450 FLRA decisions since April 1979 and 27 since January 2011. To quote Pretty Vivian, “Big Mistake. Big. Huge.”