In a recent decision of the U.S. Supreme Court, Justice Douglas, who argued for the majority, stated that “the legal source of the labour arbitrator is not limited to the explicit provisions of the treaty, because labour law – industry and store practices – is also part of the collective agreement, although it does not express itself there.” This diktat seems too broad in relation to the real experience of the management union in the field of contract management. It may also be premature, as a “coherent justification for reconciling complaints” has not yet been developed. If such a justification is to be obtained, much more work is needed to identify and analyze the standards that are used to shape arbitrations. The purpose of this document is to examine in depth one of the most important standards on which so many of our decisions are based. Customs and practices have a profound influence on all areas of human activity. The Protocol guides relations between states; Etiquette affects an individual`s social behaviour Habit determines most of our daily actions; and help more to determine our laws. It is therefore not surprising that current practice in an industrial enterprise plays an important role in the management of the collective agreement. It must exist for quite a long time. The longer a practice, the more weight it has. We are talking about years, not weeks or months. Many arbitrators believe that a practice should be 3-5 years and “cross-over contracts”, i.e. it must have been in practice for the life of at least 2 contracts.
Another objective is to fill a gap in the agreement. When a contract specifically deals with an employment rule in detail, but leaves a gaping hole in a unique way, arbitrators use a past practical analysis to determine what the parties intended to do. For example, the employer has never given “points” to union delegates under the absenteeism system to participate in union meetings, although there is no provision for this exclusion in the absence system that is part of the contract. It`s been around for ten years. Each year, the union informs management of the participation in the congress. In this case, although the practice is in conflict with the treaty, it would probably be considered a valid past practice. Current practice is sometimes used to modify, modify or even contradict a clear and clear provision of the treaty. The underlying theory is that the parties have the right to change their contract for the duration of the contract, unless the contract expressly prohibits any change, either by conduct or by words. The majority of arbitrators found that current practice cannot modify, modify or contradict the contract.
But there are arbitrators who allow it when the evidence is clear. Even in “conditions of change” and “abuse situations,” the employer must negotiate with the union before terminating the practice. Most arbitrators will not extend these practical rights to “working methods.” If the circumstances remain the same, the practice is binding by the duration of the contract. For the most part, the practice becomes an implicit clause in the contract. The fourth sub-edition is repetition. It is a key element that the practice is repeated. If the break is daily, witnesses must testify in this regard. While consistency refers to the type of practice, repetition refers to the number of breaks. There are three categories of past practices. The “contractual declaration of past practices” is the strongest and the “contractual practice of the past” is the weakest legal argument. Finally, the objective may be to create a completely new advantage outside the treaty. Suppose a contract provides, among other things, that promotions are based on seniority if the qualifications are identical on all other points.
However, both parties recognized a practice where long, when a worker worked more than 50% of the time in a higher classification with pay, that worker was entitled to transportation when seniority could be determined.