Using past practice to win grievances
Most grievances are based on a violation of the contract, but no contract can cover every minute detail of what occurs on the job. On the job, procedures and practices are often worked out between the supervisors and the workers verbally, and nothing ever gets into the contract.
These unwritten agreements and standing policies give rise to the term "custom and practice," or what we more often call "past practice."
Using a past practice as grounds for a grievance is not always easy. Here are some guidelines for determining whether something is a past practice.
First, the practice itself must be unambiguous and easy to understand. If the member can't explain the practice to you, or if he says they do it one way sometimes and another way other times, the actual practice may not be clear enough to win the grievance.
Second, find out how the practice began. It helps if you can show that the practice was decided jointly. If management can show they instituted it with no input from the workers or the union, then it will most likely be treated as a company policy, not a past practice.
If workers started the practice without consulting management, you'll need to show that management knew about it and made no attempt to eliminate it. Arbitrators often say the company should wait until the contract is opened to change an ongoing practice.
Third, you'll need to be able to show that the practice continued in a single form over a period of time. Previous grievances based on the practice are good, even if they were handled in the first step. If the practice is very new, it probably won't carry, and if it has been handled inconsistently, you don't have a good argument.
Fourth, the practice must not conflict with the law, nor encourage unsafe behavior. No arbitrator will let you continue such a practice no matter how long you've been getting away with it.
Fifth, if the underlying reason for the practice is gone, then the employer can eliminate it. For example, if the company builds a break room, they can justify stopping the practice of allowing you to take your break off-premises.
Sixth, the practice should give your members a clear benefit. If you cannot show that it benefits your member(s), the arbitrator may feel the grievance is frivolous. Of course, "benefit" is a subjective term.
The other side of that coin is that if the practice causes no inconvenience or expense to the employer, the arbitrator is likely to rule in your favor.
On many jobs, past practices account for a large number of grievances, and all stewards can benefit from learning about them.
Many contracts include a clause stating that specific past practices must be continued. This clause can sometimes be used to argue that other practices should be continued, even if they are not specifically mentioned in the contract.
Your grievance is always on more solid ground when you can tie it to the contract, even if it's just the general clause giving you the right to bargain for wages and working conditions.