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Employment Blog

Beware of Past Practice Clauses in Collective Bargaining Agreements

Authored by Ruder Ware Attorneys
Posted on October 15, 2015
Filed under Employment

Last month, a staff arbitrator with the Wisconsin Employment Relations Commission (WERC) issued a grievance decision interpreting certain language in a collective bargaining agreement regarding past practices.  The WERC is a Wisconsin state agency responsible for the oversight and enforcement of the state’s public and private sector labor laws, including the conducting of hearings throughout the state regarding disputes under collective bargaining agreements and the issuing of grievance decisions.  Due to legislative changes, namely Act 10, there are significantly fewer WERC issued grievance decisions.  The following decision is noteworthy due to the current low frequency of such decisions and also due to the subject matter.    

In Milk Specialties Global, Case ID: 442.0000 (Houlihan, 9/11/15), a private company and union were signatories to a collective bargaining agreement.  The bargaining relationship between the parties went back many years.  A clause within the collective bargaining agreement stated that the overtime policy and practices in effect under the prior agreement will continue in effect.  The company had a practice for at least 23 years, spanning numerous collective bargaining agreements, that paid employees time and one-half for all hours worked on Sunday regardless of the number of hours worked during the week.  Sunday work was regularly scheduled and employees working Sunday could work no more than 40 hours in the applicable workweek.  When the company stopped paying time and one-half for work on Sundays, the union grieved.  The Arbitrator sustained the grievance and found that this past practice was incorporated by reference into the collective bargaining agreement due to the overtime past practice clause. 

This case is a good reminder for companies to check their collective bargaining agreements when considering a change to a past practice or a response to continue a claimed or actual past practice.  If there are contractual past practice clauses, an examination of the collective bargaining agreement should be made to determine if there must be mutual agreement between the parties prior to changing or eliminating a past practice.  Even in the absence of past practice clauses, an examination of the particular facts, the relevant bargaining history, the relationship between the parties, the subject matter of the past practice and its treatment, and the scope of the practice is needed to avoid an undesirable grievance arbitration award.