FROM A UNION ONLINE SOURCE

A past practice is something which evolves at the workplace, rather than in the Agreement or through agency regulations. A past practice always involves a working condition, and what is actually being practiced in the workplace, not what higher level management has directed, or thinks is being done. An example might be if the agency regulations require an employee to call in every day when sick, but in your Sector, employees are only required to call in every third day. 

a.    In order for a past practice to become an established condition of employment, which management cannot change without bargaining with the Union, the practice must be consistently followed for a substantial period of time, and known to both parties. If the practice is intermittent, or is too remote in time, then it will not be regarded as an established past practice.  Office of Workers Compensation Programs, Boston, MA and AFGE Local 948, 56 FLRA No. 94 (8/31/00), [100 FLRR 1-1136]. 

b.    When the Agency changes a past practice, it must give the Union notice and bargain (if the Union demands bargaining) before changing the past practice, just as it must give notice and bargain before making changes to its written policies. However, management frequently refuses to bargain when changing a past practice, claiming that it is simply enforcing the existing rules. This is a violation of the Statute. Remember, though, that in order to be a past practice, the practice must be known to both management and the Union, and consistently followed. Just because supervisors occasionally look the other way and allow an employee to get away with something does not create a practice.

c.    Under FLRA case law, either party can request bargaining to change existing past practices. 

1.The duty to bargain exists only at the level of exclusive recognition, unless mutually delegated to a lower level. See Immigration and Naturalization Service, US Border Patrol, Del Rio, TX and AFGE, National Border Patrol Council, Local 2366, 51 FLRA 768 (1996); reconsideration denied 51 FLRA 1561 (1996).