Past Practice: What It Is and How You Can Use It to Enforce Your Rights under the Contract

The management at your facility has allowed controllers to arrive 15 minutes or so late with no consequences. This has gone on for many years and everyone knows about the policy so that a few minutes lateness on occasion will be excused. Then one day a supervisor charges a controller with AWOL for being 15 minutes late due to unusually bad traffic. Has the controller violated the attendance policy? Is there an enforceable right to come in late without being disciplined?

Past practice is a common term used to describe work place rules and policies that are not written in the contract or official rules, but are developed over time in the workplace. A past practice must be established consistently and for a long period of time. In order to be enforceable, such practices must concern conditions of employment, such as leave and attendance policies. Once established, past practices are considered incorporated into the collective bargaining agreement and enforceable through the grievance-arbitration process. In addition, the agency may not change established past practices without notice and bargaining. The only exception to this is if the practice was illegal.

In order to establish the existence of a past practice, the union must show 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. That is, the union must prove that management was aware of the past practice and accepted the practice over a long period of time.

If you said yes to the above, you are correct: the practice of excusing a few minutes tardiness was in place over a long period of time and known to management and not challenged. Therefore, practice of excusing a few minutes tardy on occasion was an established condition of employment and the controller cannot be charged AWOL. The agency cannot discipline a controller for being a few minutes late without first changing the policy through notice and bargaining.