Local Representation
Understanding past practice
Many terms and conditions of employment
are contained in the collective negotiations
agreement (“CNA” or “contract”) between the
employer and a PBA Local. Just as many nev-
er make it into the final negotiated agreement.
Few employers, if any, have the patience to sit
and negotiate every single term and condition
JAMES M. of employment, which is one reason why main-
METS, ESQ. tenance of benefits, maintenance of standards
and past practice clauses are so prevalent in PBA
contracts. These clauses usually require the em-
ployer to maintain the terms and conditions of
employment not contained in the CNA at the
same level as they were prior to negotiations.
Even if a CNA does not contain such a clause,
the employer cannot simply change negotiable
terms and conditions of employment that do not
appear in the contract. Doing so is a violation of
BRIAN J.
MANETTA, ESQ. past practice.
Despite the prevalence of past practices in an
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officer’s work life, the concept is often misunderstood. A PBA
unit member with a grievance may be quick to say, “The em-
ployer can’t do that! There is a past practice!” Prior to making
a past practice argument, however, the PBA must do its due
diligence and thoroughly investigate the grievance. In many
cases, the employer’s action will violate a contractual pro-
vision, and the grievance will not need to rely solely on the
past practice. In others, a past practice may shed light on the
meaning of ambiguous contract language. We have seen an
increase in the number of past practice grievances being filed.
This article defines past practices and how to use them.
A past practice is an implied term of the CNA. A past prac-
tice is created when both the PBA and the employer respond
to a recurring situation in the same way over a long period of
time. By repeating their response, the parties either implicitly
or explicitly recognize the response as appropriate.
Arbitrators generally agree that in the absence of a written
agreement on a specific item, a binding past practice must
be consistent, clear and acted upon, as well as ascertainable
over a reasonable period of time. Case law of the New Jersey