A recent Minnesota arbitration award offers a useful reminder that doing something for a long time does not necessarily make it a binding past practice. The details matter.

In AFSCME Council 5 and State of Minnesota MMB/Department of Corrections, the dispute involved mistakes in distributing overtime. The collective bargaining agreement established how overtime should be distributed but did not specify what should happen when an employee was mistakenly skipped.

AFSCME argued that the answer could be found in more than 20 years of history. According to the Union, when an employee missed an overtime opportunity because of an employer error, the longstanding practice was to pay the employee for the overtime they would have worked.

Union witnesses testified that the remedy was so routine that it was sometimes handled informally; a supervisor would simply authorize the employee to put the missed hours on a timecard. The Union also pointed to prior bargaining discussions as evidence that MMB knew of, and had effectively acknowledged, the practice.

The Employer saw the history differently. While overtime mistakes had been remedied for years, they had not always been remedied the same way. Employees had received full overtime pay, straight-time pay, partial payment, or an opportunity to work a future overtime shift. Many formal grievance settlements also expressly stated that they were non-precedential. The Employer argued that this demonstrated case-by-case problem solving, not a mutually accepted rule.

In their decision, arbitrator Joseph Daly, found that consistency counts when establishing a past practice.  In applying the general rule that a binding past practice must be unequivocal, clearly acted upon, and sufficiently established and accepted by both parties, the arbitrator agreed with the employer.

Although the parties had a long history of correcting overtime mistakes, the remedy was not uniform. The arbitrator found insufficient evidence of the clarity, repetition, mutuality, and acceptance necessary to establish a past practice that would transform one particular remedy into an implied term of the CBA. Further, the arbitrator declined to create a remedy where the CBA was silent, particularly in this case where the terms of the CBA expressly prohibited an arbitrator from adding provisions to the contract.

Management Rights Takeaway: Don’t assume repetition equals obligation. As we have been discussing, when faced with a past-practice claim, employers should be evaluating the precise circumstances:

• What exactly is the claimed practice and can it be resolved with existing CBA language, or is there a genuine gap?
• Review the history: Are there variations, exceptions, different remedies or unique circumstances with respect to the claimed practice? Is there bargaining history that reflects whether the parties recognized, rejected or attempted to change the practice?
• Is the alleged practice consistent and mutual or was management exercising its discretion?
• Carefully document resolutions to similar issues when resolving case-by-case to explain any unique circumstances, expressly identify when non-precedential, and clearly establish the resolution is not a contractual interpretation.

This award highlights the value of labeling grievance settlements non-precedential when appropriate and documenting when a resolution reflects the unique circumstances of a grievance rather than an agreed interpretation of the CBA. If you or your organization are faced with claims of past practice, contact Wiley Reber Law for legal advice that works.