Past practices can be a double-edged sword.  Sometimes, through indifference or convenience, a practice to the benefit of employees can be established through years of repetition.  Other times, an employer can establish its own method of doing business, or paying employees, consistent with its interpretation of a contract, and that practice becomes the law of the shop.

In AFSCME, Local 450 and Dakota County, Minnesota, the union attempted to prove that an employer was violating the collective bargaining agreement (CBA) between the parties by failing to pay probation officers on-call pay for every hour those officers were not on-duty, due to the nature of their jobs.  The County, of course, disagreed, and stated it had established a practice of paying the covered employees only 40 hours of on-call pay per week, starting around the year 2000.

The language in question states, “When employee (sic) are outside of their normal work hours but are designated by management to be ion-call (sic), they shall be compensated for on-call status at the rate of two ($2.00) per hour for each hour they are designated to be on-call.”

In his decision on the merits, Arbitrator Jacobs found that while the employees in question were on-call during off hours, they did not have what were considered “normal hours” due to the nature of their work.  He found the evidence showed there was initially a practice of paying the employees 30 hours a week in on-call pay.  He also found there was a later agreement between the parties that the amount of on-call pay should be increased to 40 hours per week.

Arbitrator Jacobs also noted discussion about on-call pay during contract negotiations in 2018-2020, and that language was added to the CBA that allowed for an additional payment of two hours of straight time for employees during the weeks they were considered on-call.  However, the union’s originally requested language on on-call pay was not included in the contract.

The County kept its notes from the negotiations, which showed that the parties agreed that employees were only paid 40 hours of on-call pay per week.  The union never made any efforts to repudiate the practice, though the parties went through two separate contract negotiations following the language change.

In the end, the arbitrator found that a binding past practice between the parties existed, limiting on-call pay to forty hours per week.  He found that there was “specific discussion about it and that there was no ‘error’ or oversight.” The arbitrator then went through the intricacies of both past practices and repudiation of practices at length.  In short, he found that the repetition of the practice over the course of two decades, along with the agreement by the union that the practice applied to the employees in question, created a binding past practice on the parties, and the union never negotiated language to the contrary.

It is important that employers keep track of the practices in place for its employees.  If the employer disagrees with the practice (if one exists), the employer must take steps to repudiate it formally during contract negotiations.  In addition, as much as it might pain employers to keep the notes from every negotiations meeting, mediation, or arbitration, or even e-mails about a certain practice, they WILL benefit the employer in the future.  So take good notes, and keep them forever.

Past practices can be difficult to manage, and even more difficult to get rid of.  If you, or your organization, need assistance in dealing with or getting rid of past practices, contact Wiley Reber Law, for negotiating experience that works.