PAST PRACTICE
Every NALC steward knows that contract administration is a basic part of the steward's job perhaps the most important part. The provisions of the National Agreement have been specifically negotiated to provide protection for letter carriers, protection that is only as good as the watchful eye of the steward. Article 19 of the contract makes clear that all handbooks and manuals relevant to the carrier's job, such as the M-39, are also considered part of the con-tract. Stewards therefore need to know these documents and be pre-pared to file grievances if management steps outside of any of the pro-visions contained in these handbooks.
There is another, equally important part of contract administration that may not be as obvious. The steward must also be aware of unwritten custom and past practice that exists in the relationship between carriers and management. In many cases, these unwritten expectations have evolved over many years and are taken for granted by carriers. However, USPS management can and will make attempts to unilaterally change past practiceusually when a new manager comes into an office. Such attempts should be resisted and grieved with as much effort and dedication as any management violation of the written provisions of the National Agreement.
For many years arbitrators have held that custom and past practice can be held enforceable through arbitration because such past practice is in essence a part of the parties' whole agreement. That is, the existence of an unwritten but long-established practice is just as binding on the parties as is the written language contained in all the documents, handbooks and manuals that apply to the carrier's job.
In the 2001 Revisions to the USPS-NALC Joint Contract Administration Manual (JCAM) the parties formally agreed on the binding nature of past practice and set down a general explanation of the definition and functions of past practice.
Basically, when arbitrators recognize and sustain the validity of a past practice, they are affirming the principle that no set of written documents can cover every aspect of the labor-management relation-ship. Practices evolve within that relationship that may be specific to a particular office or even a particular route. If the practice continues without change or objection from either management or the carriers for a long enough period of time, then that practice is considered by arbitrators to be a part of the labor agreement, and it cannot be changed without negotiation between the parties.
For example, in 2001 Arbitrator Carlton Snow in Case C-23057 ruled that a valid past practice existed in a California postal facility that NALC representatives could use the copy machine owned by management to copy small numbers of documents at almost any time and also to make large numbers of copies after obtaining permission from management. Also, the copying performed by union representatives was free of charge by management. This was standard operating procedure in the facility for at least eight or nine years.
However, in 1998 new management took over and changed the access codes for the copy machines. Managers told union representatives that they would have to seek permission to make any copies and further, would be charged 15 cents a page for each copy made by the union. The union grieved this change as violating a long-standing past practice, and the grievance proceeded to arbitration. Neither side disputed the facts of the grievance. The union argued that by changing the practice of allowing the union free use of copiers, management had taken a unilateral action in violation of the understanding that changes in past practice would be negotiated. Management for its
part argued that allowing the union to use the copier was a unilateral management decision in the first place, and that therefore it could unilaterally be changed.
Arbitrator Snow, in upholding the union's grievance, relied on an earlier arbitration decision by Arbitrator Richard Mittenthal, who also described the elements required to establish a valid past practice in a paper given to the
National Academy of Arbitrators and in an article in the Michigan Law Review. Mittenthal's points are also contained in the JCAM section on past practice. The fundamental elements of a valid past practice or custom, as Mittenthal has stated and the JCAM has paraphrased, are four, as follows:
1 .The practice has an established longevity and repetition.
2.The practice has clarity and consistency.
3.The practice has been accepted by both parties; and
4-The practice has a clear purpose and scope.
In the case of the union's use of management's copier, Arbitrator Snow found that the union's undisputed use of the machine for the past eight or nine years proved that the practice had an established longevity and repetition. For that amount of time, the conditions applying to union use of the copier were clear and consistent, were accepted by both parties, and had a clear purpose and scope. By mutual agreement, the parties in the office had determined that allowing the union to use the copiers was the most convenient way to provide copies of important documents that the union needed to process grievances. As Arbitrator Snow wrote, that purpose was clearin his words, "an effort to maintain stable, more peaceful relations with the Employer."
As Arbitrator Snow saw it, when a new manager took over the office and put an effective end to union use of the copiers, management was acting in an arbitrary way that violated the spirit and existence of the long-standing past practice. In his award. Arbitrator Snow charged management with restoring the union's access to the copiers and, in response to part of management's claims that union use of the copiers was costly, allowed management to charge the union the "actual, documentable costs for making copies," which would be considerably less than 15 cents a page.
In general, unions tend to grieve management violation of past practice when the discontinuation of the practice takes away a clear benefit for workers or the union, such as the above case. Generally, stewards are alert to such management actions because the workers who are affected by the change complain about the loss of the benefitfor example, in some workplaces, if a manager decides to begin charging for parking or allowing persons other than employees to use the spaces for a fee when the allocation of parking spaces to employees had been established
by past practice.
However, there are many past practices or customs that on their face seem to provide no real benefit to letter carriers. Yet NALC stewards should be alert to any unilateral changes in these practices as well, and be prepared to
grieve the changes so that the past practice can be preserved. For example, in a case heard in Connecticut last January by Arbitrator Garry Wooters, the basis for the grievance was the fact that management had made a change in the daily schedule of letter carriers so that they no longer "dragged the mail" for their routes from the clerk cases
in the morning office hours while casing their routes. (The term, "dragging the mail," in this case most likely did not mean literally dragging bags of mail from one location to another, but simply picking up cased mail from the
clerks). Instead, clerks were to "drag the mail" to the carriers. The amount of time involved in this operation was usually five minutes or lessand on its face, the unilateral change in the practice would seem relatively insignificant.
However, the NALC argued that the practice of carriers drag ging the mail had stood unchallenged for 22 years and was therefore a valid past practice that could not be unilaterally changed by management. Why would the union pursue such an issue to arbitration? Very simply, the NALC had an eye to the future and the importance of preserving carrier office time in the next round of route inspections.
Arbitrator Wooters agreed that the practice of having carriers drag the mail was indeed a valid past practice. As Wooters wrote, "It was well known to the parties, acted upon over an extended period of time and was mutually
assented to." Therefore, the arbitrator ruled that management must reinstate the practice and return the work of dragging the mail to the carriers.
Another general principle in grieving past-practice violations is that usually a number of workers are affected by the unilateral rejection of the past practice, as in the above case of dragging the mail. However, the question of how many people are affected by the change should not always be a factor in deciding whether to grieve management's abolition of an established past practice, even if that order affects only one carrier.
In Case C-23114, heard by Arbitrator Claude Ames last February, a new manager learned that a carrier was in the practice of taking his lunch break at his own home when carrying a certain route. The route was set up with authorized lunch locations which did not include this carrier's home. However, a former supervisor had agreed that the carrier could take his lunch break at home whenever he carried that route as a swing and the carrier had been following that practice ever since, which was an unspecified amount of time. However, during that time both the carrier and management had agreed on the practice. The new manager, however, noticed the carrier's deviation from "authorized lunch locations" when carrying that route and ordered that the carrier stop going home for lunch and instead go to one of the authorized locations. The NALC grieved this order, which unilaterally changed a mutually agreed upon past practice. The arbitrator upheld the union's grievance. In this case, however, stewards should note that the carrier had a clear and mutually agreed upon practice with a supervisor, which formed the basis of the arbitrator's decision. A past practice existing in the absence of such a clear and mutual agreement might well have not been upheld in arbitration.
Other recent cases that uphold the validity of unwritten but longstanding past practice include Case C-23069, in which an agreement existed between the post- master and carriers in an office that the carriers could forego their
lunch break and work an 8-hour tour instead of the standard 8 hours. When a new postmaster came in, the postmaster attempted unilaterally to change that practice, which had been in effect since 1989. As the arbitrator in
this case, Jonathan Monat, wrote, "The evidence submitted by the union met the threshold burden to establish that a past practice exists at the __ Post Office with respect to the 'no lunch' policy. Management provided insufficient evidence to overcome the preponderance of the evidence of the past practice."
In preparing a grievance based on management's violation of a past practice, NALC stewards must be prepared to undertake a kind of historical research project. The steward must seek out witnesses (who may no longer be working at the facility) who can testify to the establishment of the practice. In many cases, some of this history could even come from management. In all cases, NALC stewards should strive to meet the four elements as stated by Arbitrator Mittenthal: that a past practice has longevity and repetition; clarity and consistency; acceptability and mutuality; and a clear purpose and scope.
As demonstrated by the cases described above, each past-practice grievance has its own special set of circumstances. In the end, the union's success in winning such grievances depends on how well the steward can collect all necessary specific facts.
(REPRINTED FROM THE NALC ACTIVIST; WINTER 2003)
