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This guidance is provided for the information of MEDCOM managers, servicing CPACs, Staff Judge Advocates, and MEDCOM Civilian Personnel Liaison Offices. SUBJECT: Past Practice and ULPs Many managers don't understand the Labor Relations concept of "past practice".Past practices involving bargaining unit conditions of employment don't have to be in writing, but rather, just be an "understanding" by management, employees, and recognized unions about the manner in which things are done.The danger being that a supervisor or manager may think since the practice is not in writing, contained in a local regulation, or covered in the labor agreement, they can change it without notice to the union.Changing past practices require union notification and bargaining just like changing any other condition of employment. How many times have you had a new supervisor/manager/commander come in and decide they didn't like how things were done before their arrival, and make unilateral changes that may affect conditions of employment?Such changes without notifying the union is simply a "dice roll" and a unfair labor practice (ULP) waiting to happen.Just because they have the authority to make changes or because it wasn't an official policy, they think they can change it unilaterally. Management generally does not have to negotiate "decisions" to change past practices in the following situations (although it may still have to negotiate over the impact and implementation of the change): a.If
the past practice violates or nullifies a management right.
So, when in doubt about making changes to conditions of employment or past practices, managers are encouraged to discuss the matter with representatives of their servicing CPAC. The following "CyberFEDS" on the web case law discussion may be useful to addressees. Joe
Gray
DSN 471-7096 Joe.Gray@cen.amedd.army.mil
******************************************************** Past Practice Overview Past
practice is the term used to describe a pattern of workplace behavior that
is sufficiently clear, of long enough duration, and well enough known to
both management and union officials to constitute an unwritten rule or
policy. To qualify as a bona fide past practice, such a pattern of behavior
must also involve a condition of employment of bargaining unit employees,
and must not conflict with applicable laws or government-wide regulations.
Once established, essentially by unwritten consensus or silent toleration,
a past practice becomes just as enforceable as a formally negotiated workplace
rule that is placed in writing by the parties. That is, it may be enforced
through application of the ULP procedures of the statute and the negotiated
grievance procedure of a labor agreement.
Key Points These key-point summaries cannot reflect every fact or point of law contained within a source document. For the full text, follow the link to the cited source. ·In order to qualify as a past practice, an established pattern of behavior must involve a condition of employment of bargaining unit employees. Customs Service, 18 FLRA 1, 85 FLRR 1-1146 ·A matter that qualifies as a condition of employment can become established as a condition of employment of bargaining unit employees either through bargaining or through practice. Letterkenny Army Depot, 34 FLRA 606, 90 FLRR 1-1126 ·A matter that does not involve the working conditions of bargaining unit employees cannot "ripen" into a past practice through simple repetition. IRS, 27 FLRA 322, 87 FLRR 1-1251 ·On remand from the D.C. Circuit, the FLRA ruled that access to post exchange facilities that had been allowed for 18 years had become a valid past practice in light of a) the fact that it had been used as an employment inducement, and b) the particular working conditions involved. FortBuchanan, 37 FLRA 919, 90 FLRR 1-1515 ·Mere repetition of particular behavior is not sufficient to establish a past practice. To qualify, a particular practice must be consistently exercised -- usually over an extended period of time -- with both parties aware of the practice and neither attempting to halt it. Dept. of Labor, 38 FLRA 899, 90 FLRR 1-1633 Social Security Administration, 56 FLRA 1108, 101 FLRR 1-1080 ·The burden of proving the existence of a past practice rests on the party alleging it. It must be supported by evidence of a clear and consistent pattern of conduct. VA MedicalCenter, Memphis, 42 FLRA 712, 91 FLRR 1-1441 ·The existence of an alleged past practice cannot nullify a statutory management right. Federal Grain Inspection Service, 18 FLRA 119, 85 FLRR 1-1168 ·Past practices can be established by one or a few supervisors who do have authority over a particular condition of employment. Social Security Administration, 38 FLRA 193, 90 FLRR 1-1579 ·Reaffirmation of an existing policy does not constitute the unilateral change of a contrary past practice. SSA, Mid-AmericaServiceCenter, 9 FLRA 229, 82 FLRR 1-1539 ·Prolonged failure to enforce a policy may result in the creation of a practice that cannot be changed without first bargaining. Bureau of Land Management, 12 FLRA 686, 83 FLRR 1-1250 ·Local variations from a condition of employment negotiated at the national level do not create valid past practices if such variations were not known and accepted by national-level officials. Social Security Administration, 17 FLRA 1011, 85 FLRR 1-1137 ·An agency is entitled to terminate a practice it believes to be in violation of law without first obtaining union agreement through collective bargaining. U.S. Marine Corps, 34 FLRA 635; 90 FLRR 1-1130 Dept. of Justice v. FLRA, 727 F.2d 481 (5th Cir. 1984), 84 FLRR 1-8045 ·An agency is not required to bargain in order to obtain union agreement to bring a past practice into conformance with an applicable government-wide regulation. Portsmouth Naval Shipyard, 49 FLRA 1522, 94 FLRR 1-1157 ·An agency acts at its own peril in changing or discontinuing a past practice based on a belief that it is in conflict with law or government-wide regulation; i.e., if it's belief is later determined incorrect, it is liable to a ULP finding. Naval Underwater SystemsCenter, 30 FLRA 697, 87 FLRR 1-1682 ·Although there is no obligation to bargain as to whether an agency will terminate a practice in conflict with law or government-wide regulation, or as to when it will do so, it is nonetheless obliged to provide notice of the change to the exclusive representative (i.e., union) and to bargain concerning the impact, if any, of the change. Customs Service, New Orleans, 38 FLRA 163, 90 FLRR 1-1575 ·Benefits
extended to union officials in connection with their representational functions
can become established past practices. SSA, 38 FLRA 193, 90 FLRR 1-1579
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