WHEN PAST PRACTICE TRUMPS CONTRACT LANGUAGE
What do you do if management suddenly announces that despite following a certain past practice for years, which obviously conflicted with the contract language, it is now pronouncing the past practice dead and insisting the parties immediately follow the clear and unambiguous contract language in the future? The first thing you would do is figure out whether you want to object, and if you do the second thing would be to read the newly issued decision AFGE, 66 FLRA 963 to refresh your recollection of how the law treats those situations.
For example, suppose management tells you that it will no longer bargain with union teams that contain union representatives who do not work for the agency. It claims it has the right to unilaterally make that change because your contract has said for over a decade that all members of the union’s bargaining team must be employed by the agency. However, you know that the practice has been to allow the local union president, who retired years ago, to lead bargaining teams.
In this AFGE case, the union asserted that the past practice took precedence over the clear and unambiguous contract language. It noted that the contract had been renegotiated three times since that language was added and throughout that time the agency had allowed non-employees to lead the union team, namely retired former union officials. Although the agency refused to budge, the ALJ agreed with the union that past practice trumped contract language. When the agency appealed the arbitration decision to the FLRA, the Authority agreed with the union as well.
The Authority built its ruling around the three following statements that apply whether an arbitrator or ALJ is making the decision:
- “. . . arbitrators may appropriately determine whether a past practice has modified the terms of a collective-bargaining agreement.”
- “there is ‘nothing improper about the [Judge]’s determination to interpret the [agreement] as the parties modified it’ through their practice, rather than relying solely on the contractual wording.”
- “. . . that ‘judicial and arbitral decisions’ may be ‘mixed’ on the issue of whether a past practice may modify unambiguous contract language, . . . does not establish that the Judge could not properly interpret the parties’ undisputed, eleven‑year past practice as demonstrating the parties’ intent to modify Section 2.”To paraphrase, past practice trumps clear conflicting contract language because it is considered to be evidence that the parties “modified” the contract terms and FLRA is fine with arbitrators and ALJ favoring contract language over practice or doing the reverse. (For more details as to how the parties’ actions can amount to a modification of a clear contract agreement read AFGE, 64 FLRA 732.)Resolving a conflict between clear contract language and an obvious past practice is difficult under any circumstances. As the Authority noted, arbitrators and ALJ not only have a mixed record on which takes precedent, but in most cases the decision will be based on the arbitrators or ALJ interpretation of the contract, which is very, very difficult to get overturned at FLRA. The neutral can also decide that there was no past practice and consequently the contract language controls. While that might a little easier decision to have FLRA overturn given that there are statutory elements of a past practice, the elements are not easy to meet due to their own ambiguity, e.g., sufficient duration, joint knowledge by responsible officials, acquiescence, etc.
- This article was originally posted on 9/12/13 and the issue has been further addressed since then in U.S. Department of Homeland Security, U.S. Customs and Border Protection, El Paso, Texas, 69 FLRA 261 (2016)
- In any event, if put in a situation where management declares that it will no longer honor a past practice because the contract language is clear and contrary to the practice (or it says the reverse, namely, that it will no longer follow the clear contract terms because the past practice shows that the parties have actually modified the written agreement terms), decide first whether you are OK with that or not—or even if you want to strike a slightly different deal. If you are opposed to the change, make it clear that you disagree and also ask to negotiate over that as a proposed change. Asking to negotiate before any change is made protects you in case the neutral decides that you had no right to refuse to make the change. The right to bargain might at least get you the ability to bargain I&I before the change is implemented. Check out POPA, 39 FLRA 1477 for more on that point.
This article was originally posted on 9/12/13 and the issue has been further addressed since then in U.S. Department of Homeland Security, U.S. Customs and Border Protection, El Paso, Texas, 69 FLRA 261 (2016)