Past Practice

By:  Joe Hegedus, Esquire

          I recently spoke as part of a panel discussion at the annual State Employment Relations Board (“SERB”) Fact-Finding Conference.  The subject of our discussion was the topic of “Past Practice.”

          The exchange between the participants at the conference, on the topic, reminded me of what a complex and often misunderstood legal tenet that past practice is.

          On its face, it appears to be rather straightforward.

          According to Elkouri & Elkouri, How Arbitration Works, 8^th Ed. (Bloomberg BNA Books, 2016) at p. 12.–4, “[i]ndeed, many arbitrators have recognized that, “In the absence of a written agreement, ‘past practice,’ to be binding on both parties, must be (1) unequivocal; (2) clearly enunciated and acted upon, (3) readily ascertainable over a reasonable period of time as a fixed, and established practice accepted by both parties.”

          Similarly, the Ohio Supreme Court defined past practice, in its Syllabus, in Ass’n of Cleveland Fire Fighters, Local 93 of the Int’l Ass’n of Fire Fighters v. City of Cleveland, 99 Ohio St.3d 476 (2003), as follows:

To be binding on parties to a collective bargaining agreement a past practice must be (1) unequivocal, (2) clearly enunciated, and (3) followed for a reasonable period of time as a fixed and established practice accepted by both parties.

While the above definitions seem to be straightforward on their face, their application is often somewhat convoluted.

          The City of Cleveland case, itself, is a good example of that.  In City of Cleveland, supra., the Court considered an alleged practice labeled as “arrowing” by the parties, which began in the 1960’s as a manner of temporarily rescheduling firefighter’s work shifts to purportedly balance manpower over various shifts.

          This supposed practice existed prior to the advent of collective bargaining and consistently continued uninterrupted for more than twenty years after the first collective bargaining agreement (“CBA”) between the parties was negotiated in 1977.

          The Union unsuccessfully attempted to prohibit the practice of arrowing throughout the 1990’s during three separate contract negotiations.

          In 1999, the Union finally grieved the practice, at which point, the arbitrator ruled that the CBA permitted arrowing and that arrowing was binding past practice.

          The Union appealed and the Common Pleas Court vacated the arbitrator’s decision, without any real analysis.

          The Eighth District Court of Appeals, affirmed in part and reversed in part, by upholding the vacation of the arbitrator’s award, but, in doing so, significantly muddied the waters, by holding that the CBA neither authorized, nor prohibited, arrowing.

          After both parties appealed to the Supreme Court, the Court adopted its definition of past practice, as set forth above, and then held that “the plain language of the CBA clearly does not allow arrowing.”[1]

          The Court included the following rationale in support of its position at pp. 479-481:

The arbitrator also concluded that arrowing is a binding past practice, “established and recognized by both parties * * * practiced openly and notoriously for more than 30 years.”   However, arrowing cannot be interpreted as a binding past practice because of the union’s continuing vehement fight against its use.

Other states have contemplated the factors required for a past practice to be binding.  The predominant definition, and the one used by both the arbitrator and the union, requires that to be binding on parties to a collective bargaining agreement, a past practice must be (1) unequivocal, (2) clearly enunciated, and (3) followed for a reasonable period of time as a fixed and established practice accepted by both parties.  Celanese Corp. of Am. (1954), 24 Labor Arb. Reports 168, 172.  We think this a sound and logical test, and hereby adopt it.

Under this newly adopted test, it is clear that arrowing cannot be considered a binding past practice, because the union did not accept the practice.  The facts in the record are inadequate to properly examine the first two prongs of the test.  The arbitrator merely summarily stated that the practice as “unequivocal and clearly enunciated and acted upon.”  The arbitrator’s opinion provides no further assessment of those issues.

An examination of the first two prongs of the test is unnecessary, however, because there is ample evidence to adequately address the third prong.  The third prong of the test requires that the practice be followed for a reasonable period of time as a fixed and established practice accepted by both parties.  The city argues that the union in effect agreed to the practice because it failed to file a grievance for over 20 years.  Nevertheless, filing a grievance is not the only vehicle for disagreement for the union.  The union repeatedly attempted to negotiate language into CBAs to prohibit the practice or remove language that may have been construed to support the practice, so that the CBA would clearly and indisputably prohibit the further use of arrowing by the city.  The history of the negotiations on this issue sufficiently demonstrates the union’s complete lack of acceptance of arrowing.

The union also asks us to close the loophole created by the appellate court’s caveat that “this is not, however, a determination that the CBA prohibits arrowing” and to hold that the CBA expressly prohibits arrowing.  Given our discussion above, we conclude that arrowing expressly violates the CBA.  There is no question that arrowing violates the Article VIII requirement that fire fighters’ hours of duty follow a 24-hour-on and 48-hour-off schedule because it results in fire fighters having only 24 hours off between work days.  Because we have also examined and rejected the theory that arrowing is a binding past practice, we see no other avenue by which an argument may be made that arrowing is permissible.  Therefore, we hold that arrowing violates the CBA.

          While, as a Union advocate, I obviously agree with the Courts’ decision in this case, the fact that an arbitrator and three different courts had alternate approaches to the resolution of the same problem, is some indication that the evaluation of past practice is often difficult.

          As a result, OPBA members should always consult their OPBA attorney when attempting to navigate the past practice mine field.