Public Employment Relations Commission similarly defines
“past practice” as a course of events “which is repeated, un-
equivocal, clearly enunciated and acted upon, and readily as-
certainable over a period of time as a fixed, established prac-
tice accepted by both parties.” If a particular practice meets
these requirements, it may be both binding and enforceable
through the grievance and arbitration procedure.
Past practice arguments generally arise in two instances.
First, a pure past practice case may arise when the CNA is
completely silent on a particular issue. Second, a past prac-
tice may be used to interpret contract language. There are
certain cases where arbitrators have determined that a past
practice has modified or amended the collective bargaining
agreement, but these cases are exceedingly rare. When con-
tract language is absolutely clear, past practice will not be
considered, as the contract language will govern.
Proving the existence of an enforceable past practice is of-
ten more difficult than it initially appears. The party alleging
that a practice exists bears the burden of proof. We recently
received two arbitration awards where we successfully argued
violations of past practice on behalf of PBA Locals 277 and 4.
In Camden County Sheriff’s Office and PBA Local 277, the
PBA alleged that the county violated longstanding practice by
unilaterally prohibiting sergeants from working sheriff’s offi-
cer overtime. The PBA argued that there was a decade-long
practice whereby sergeants cou ld work sheriff’s officer over-
time if the sergeant had the fewest overtime hours for the
year. Numerous witnesses testified that sergeants were eligi-
ble for and worked overtime for many years until the county
unilaterally changed the practice. The county argued that the
CNA did not address overtime, that the sheriff had a manage-
rial prerogative to distribute overtime the way he saw fit and
that the overtime was being distributed fairly.
The arbitrator first determined that there was no contract
language prohibiting sergeants from working sheriff’s officer
overtime. She then found that the testimony presented by the
PBA’s witnesses and the documents presented were consis-
tent and established that all sergeants were eligible for and
regularly worked sheriff’s officer overtime prior to the unilat-
eral change. The arbitrator ordered that sergeants be permit-
ted to work sheriff’s officer overtime.
Similarly, in City of Elizabeth and PBA Local 4, the PBA ar-
gued that a past practice existed which required the City to
pay a retiring member for his accrued but unused holiday,
compensatory and vacation time. In support of its argument,
the PBA presented the testimony of two individuals employed
in the City’s payroll department. These employees testified
that the City had always paid employees for accrued and un-
used holiday and compensatory time upon retirement. The
PBA also proved through testimony that there was an agree-
ment between it and the mayor to provide payment for vaca-
tion time for a fixed period of time. The PBA also submitted
documentary evidence supporting its claims.
The arbitrator found the existence of a binding past prac-
tice. He noted that the City employees who testified had first-
hand knowledge of the practice and found that testimony
compelling. The arbitrator also relied upon the documentary
evidence, which established that the City routinely pays retir-
ing officers for accrued but unused holiday time.
These two cases provide insight as to the evidence need-
ed to prove a pure past practice case. Both arbitrators relied
upon the consistent testimony of multiple witnesses, as well
as documentary evidence. Consistent testimony shows that
a given practice is unequivocal, clearly enunciated and act-
ed upon over a fixed period of time. Without the consistent
testimony of several witnesses, arbitrators may have difficulty
determining whether the practice is clear and consistent.
The fact that neither employer provided any evidence con-
tradicting the PBA’s description of the practice is also im-
portant. Employers may defeat a past practice argument by
showing that its response to identical circumstances is not
consistent. Employers may also defeat past practice argu-
ments by showing a break in the practice.
Past practices may also be used to interpret disputed con-
tract language. When a contract clause is unclear or ambigu-
ous, arbitrators will generally look to the way the parties have
interpreted their agreement in the past. For example, a PBA
contract may have a provision for “detective pay” but no lan-
guage stating that it is or is not part of pensionable base pay.
Under such circumstances, the ambiguity can be resolved by
looking to past practice; i.e., how has detective pay been treat-
ed in the past. Remember, however, if the contract language
at issue is clear, past practice is almost always not relevant.
Past practices are important contractual enforcement tools.
However, if the PBA does not enforce them when violated, the
past practice may be broken and lost until it can be renego-
tiated. That is why it is important to thoroughly research any
changes made by your employer to terms and conditions of
employment that are ambiguous in your contract — or not
contained in your contract — to determine if you have a “past
practice” grievance.d
James M. Mets, Esq., is a partner and Brian J. Mannetta, Esq., is
a senior associate with Mets Schiro & McGovern, LLP.
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