Another topic in our series on managerial rights. The question of whether a binding past practice exists can be more complicated than simply “this is what has always been done.” Evaluation of a past practice requires consideration of whether the “practice” has been continuous and consistent as well as the impact of applicable managerial rights and any controlling contract provisions.  As illustrated in Teamsters Local 471 and Kemps LLC,  “We’ve done it before,” and “It’s a binding past practice,” are not synonymous.

In this matter, the Teamsters, Local 471 (“Teamsters”) challenged the employer’s, Kemps LLC’s (“Kemps”) decision to reassign a route the Teamsters claimed had historically been assigned to Teamsters bargaining unit employees (Bemidji Route) to a non-union driver operating out of Detroit Lakes. The Teamsters contended they had performed the work for many years, and that this history created a binding past practice that required the work continue to be assigned to the Teamsters.

Kemps argued the route as assigned to the non-union drivers was materially different than the Bemidji Route and was not exclusive work for the Teamsters. In addition, Kemps relied on the management rights clause in the CBA which expressly reserved the rights to “assign and delegate work,” determine how work would be performed, maintain efficiency, schedule work, and change or discontinue methods of service.

The arbitrator denied the grievance, concluding Kemps acted within its contractual management rights and that the Union had not established a binding past practice by a preponderance of the evidence. The arbitrator noted the management rights clause’s broad application and found that to prevail, the Teamsters must show either contractual language or an established past practice that restricted those rights. In changing the route, the arbitrator concluded Kemps had done what the CBA permitted.

Further, the arbitrator found the “union [had] not shown that there was an unequivocal past practice, clearly enunciated, acted upon, and readily ascertainable over a reasonable period of time as a fixed and established practice by both parties.” When evaluating whether the route established a past practice, the arbitrator evaluated whether the new route was “very different” from the Bemidji Route as they focused on different geographic areas – Bemidji vs Detroit Lakes – and contained numerous different stops. Although there were some similarities, they were not enough to establish a practice. Historically, the route had been subject to modifications and had not been exclusively and consistently Teamsters work, as it had been performed at various times by non-union drivers. Importantly for employers is that the past practice must be precisely defined, consistent, and exclusive.

While this is a private sector case, the principles of a past practice are applicable to public sector as well. Next week we will look at a public sector application of past practice, which also considers management rights and other applicable contract language. If you or your organization have a question regarding managerial rights under collective bargaining agreements and application of principles of past practice, contact Wiley Reber Law for legal advice that works.