Past Practice

Vol. 2 | No. 5

ALSIS Publishing

May 2026

By A. Lee Scott
When convenient, both employers and unions tend to lean on “past practice” as a way to push back on proposals that stray from how things have traditionally been done.

It is not uncommon to hear, in informal discussions, formal grievances or unfair labor practice meetings; You can’t do that, it violates "past practice.” Meaning, it is not merely what has been done before, but ostensibly, both sides have come to rely on the practice as the norm.

Which is usually followed by individuals scrolling through the collective bargaining agreement (CBA) trying to find language that backs their position. More often than not, they come up empty. Because the specific language they are looking for is not in the contract.

That matters because when an issue rises to the level of a binding past practice, it can influence how the contract is interpreted, especially when language is silent or unclear. So what is the basis for a “past practice” challenge?

The Basis
A general contract provision often tucked into the miscellaneous section of the agreement, reads something like this:

Except as this Agreement otherwise provides, all terms and conditions of employment in effect on the effective date of this Agreement, as established by existing administrative practices and procedures will remain in effect for the duration of this agreement.

This type of language commonly called a “past practice” or “savings” clause, brings established past practices into the contract, even if they are not spelled out in detail. In effect, this clause gives past practices the same weight as the contract’s explicit terms.

Binding Past Practice
A binding past practice is not just a habit or convenience. It must be a long-standing pattern where there exists; mutual knowledge, acceptance and reliance on the unwritten practice.

The key, to proving that a past practice is binding; the pattern of workplace behavior must involve bargaining unit employees, the matter is germane to the collective bargaining agreement, as well as, meeting the following criteria:

Knowledge - Both parties know of the practice.
Acceptance - Both parties accept the practice.
Longevity - The practice must be long-standing.
Repetition - The practice occurs frequently.
Legality - The practice must comply with state and federal law.

Once established, past practice can become just as enforceable as a written policy negotiated by the parties.

In Conclusion
If your contract does not include a “past practice” or “savings clause” it is probably best to continue avoiding adding one.
If such a provision already exists, consider proposing it’s removal. If removal is not possible, the clause should clearly define the terms and conditions that constitute a past practice. This approach helps limit the risk of unintended or unrecognized practices.

“Consistency is what transforms mediocre into excellence.
Without consistency, one will never achieve greater success."