An established past practice suggests, in action or application, what the parties to the written contract intended the contract provision to mean, even when the word, clause or phrase may not have explicitly covered the action – or – it is a benefit or working condition not set forth in the contract but allowed to employees through supervisory practice.
- Every past-practice was initiated or acquiesced by management through its supervisory personnel.
- The practical administration of the contract necessarily creates past practice.
- Contract administration, if variant or conflicting past practices are not to evolve, must be uniform, consistent and future-oriented.
A past practice which meets these three standards becomes, and adds to or clarifies the written contract.
If a written provision shows clear intent as to application, any contrary past practice may be set aside in its favor.
Silence on a past practice during negotiations is an “umbrella” for continuation of the validity of the practice.
Written grievance records are material facts in proving an established practice. Such records should be maintained in the Association grievance files and passed on to successor grievance committees.
New operating conditions necessitate new rules, which may void past practices applicable to old operating conditions.
An established past practice must satisfy these standards:
- It must be unequivocal, and regularly and uniformly granted;
- It must be clearly enunciated, freely and openly allowed, and exist over a reasonable period of time;
- It must be accepted – and acted upon – by both of the parties themselves through their authorized agents in administering the written contract.