Labor Relations: The Meet and Confer Process

equities balance in favor of contract rejection, and (3) reasonable efforts to negotiate a voluntary modification have been made, and are not likely to produce a prompt and satisfactory solution. 139

2. P AST P RACTICE The current status of a matter or subject within the scope of representation may exist in the form of an agreement (MOU or side letter), a written policy, or an unwritten past practice. In order for a method or procedure to be a valid past practice, it must be:



unequivocal;

 clearly enunciated and acted upon; and

 readily ascertainable over a reasonable period of time as a fixed and established practice.” 140

An employer generally may not change a past practice within the scope of representation without providing the exclusive representative with notice and an opportunity to meet and confer over the proposed change. This is because a past practice affecting conditions of employment has the same standing as “an existing agreement or rule.” 141 An employer, however, does not commit an unlawful unilateral change when its actions are consistent with an unambiguous, but previously unenforced, MOU provision. 142 The areas most commonly associated with past practice arguments include such benefits or working conditions as: personal leave, overtime, seniority rights, call back procedures, and meal periods and other breaks. Procedures pertaining to leaves of absence, however, can be especially difficult for supervisors in terms of a past practice. A supervisor can unwittingly establish a binding practice of laxity by the manner in which he or she implements or “audits” the taking of leaves.  Am I consistently implementing, and if necessary, enforcing current rules and policies?  Am I holding rank-and-file employees in my unit accountable for basic responsibilities to their employer (e.g., punctuality, satisfactory attendance, etc.)?  Is there any laxity or lack of even-handedness in the application of disciplinary practices, benefits or assignments?  Are there any procedures which I now need to curtail or eliminate before they become a binding and undesirable past practice? a. Identifying and Avoiding Negative Past Practice The following are some basic questions to ask:

Labor Relations: The Meet and Confer Process ©2019 (s) Liebert Cassidy Whitmore 23