Part and parcel to our firm’s practice is receiving phone calls an emails from our clients asking that we evaluate specific problems and issues they are experiencing in the workplace concerning the administration of their collective bargaining agreement (CBA). When the call or email comes in, the evaluation process is always handled the same way. First, we listen to the facts of the matter and then ask the client, what sections of the CBA do you believe are being violated? Sometimes the client will provide us with an answer that cites the specific sections of the contract that they believe are at issue. In other situations, they may point to the contract in a more generalized way. However, the response that we frequently receive is that the client does not believe the CBA is being violated; rather, the behavior of the employer runs afoul of a “longstanding past practice” that has been in place between the union and the employer. When we hear this statement, the client will typically follow it up with “we have been doing it this way forever” or words to that effect, in support of their belief that their claim of breach is not so much embedded in a violation of the contract itself, but rather it is deeply rooted in the behavior of the parties.

When we hear statements such as those listed above, we often have to explain to the client that the analysis of their problem must start with the language of the contract itself in an effort to see if there is a violation of the agreement. With this being the case, it is imperative to understand that so long as the language of the contract is clear and unambiguous, it will always control the conduct of the parties and carry the day at a grievance arbitration hearing.

Precedents provide that when contract language is “clear and unambiguous”, an arbitrator should only assess the language of the agreement itself, i.e. the “four corners” of the document, to determine if a violation has occurred. This longstanding principle of contract interpretation is widely known as the “plain meaning rule.” See Elkouri & Elkouri, How Arbitration Works, Ch. 9.2.A, 9-8 (8th Ed. 2016). When these “plain meaning” circumstances occur, the Arbitrator should not consider extrinsic evidence of any kind. Ibid. Moreover, “the scope of the arbitrator’s authority depends on the terms and conditions contained within the agreement between the parties and, properly, the arbitrator can neither disregard those terms nor rewrite the agreement for the parties.” PBA Local 160 v. Twp. of North Brunswick, 272 N.J. Super 467, 474 (App. Div. 1994) (emphasis added).

To this end, when a contract is silent with respect to a given activity or if the language is not “clear and unambiguous”, the presence of a well-established practice which has been accepted or condoned by the parties may effectively constitute an unwritten principle on how the given situation should be treated. Elkouri & Elkouri, How Arbitration Works, Ch. 12, pg. 606 (8th Edition 2016).

To have a past practice applied in an arbitration, the party relying on past practice must show that the plain meaning rule is inapplicable and the practice is: 1) unequivocal; 2) clearly enunciated and acted upon; and 3) readily ascertainable over a reasonable period of time as a fixed and established practice accepted by both parties. Elkouri & Elkouri at pg. 608. However, it is important to note that past practice that is contrary to the express unambiguous and clear language of a contract must be disregarded. See In re Bergen Pines Cty. Hosp. and JNESO, 1991 NJ PERC LEXIS 229, at 37. This principle must be followed because once again, the language of the contract is controlling.

Finally, it is important to know that past practice can take three forms: it can be independent, contract-conflicting, or contract-clarifying. Independent refers to situations when a past practice is not addressed by the contract language whatsoever. Contract-conflicting is when a past practice clearly conflicts with the contract language; and, contract-clarifying past practices are situations in which the past practice between the parties is relied upon because the contract language is vague or ambiguous, or to help give clarity to a general contract provision.

While this is a short summary of evaluating whether past practice must be considered in a grievance analysis, we hope it provides the reader with a better understanding on how conflict resolution should be approached and analyzed in a union workplace.