Labor Relations: The Meet and Confer Process

b. Revising Past Practice But simply because a practice exists, does not mean that the practice cannot be curtailed or eliminated. If the practice constitutes a binding past practice on an issue subject to negotiations, then, unless the practice is inconsistent with an unambiguous provision of the MOU, or the union has waived, by agreement or otherwise, its right to negotiate the issue, the first step would be to give the union both notice and an opportunity to meet and confer concerning the proposed change in the practice. Upon completion of the meet and confer obligation, as well as any applicable impasse resolution procedures, the agency should (a) put employees on clear notice of the change in practice, and (b) give them a reasonable opportunity to adjust to the change. Both the timing and method of notice to the employees, and the adjustment period are negotiable impacts that the agency would need to discuss with the union as part of the meet and confer process. If the past practice conflicts with the clear and unambiguous language of the MOU, the agency is free to enforce the MOU. However, before enforcing the MOU provision, it is only fair for the agency to notify employees that the practice conflicts with the MOU, and that going forward the agency will be enforcing the MOU provision. In this situation, it is very important that management be able to show by documentation that employees were notified of the intention to modify a practice to conform to the MOU. This may be done by memoranda, directives or bulletins in which management points out how it has come to its attention that certain procedures are not being followed, or that the procedures need to be adjusted. It is important to remember management is merely putting employees on notice of an impending change; management should not make the effective date of such modification or change immediate. The next critical factor when seeking to change or eliminate a past practice is the time element. That is, management having publicized its intent to make such an alteration, must now allow a sufficient amount of time for all employees to become duly informed, and to make the adjustment to the change in practice. This period should also provide an opportunity for dialogue with employees regarding the change. There is, of course, no hard and fast rule as to what length of time is required for a reasonable interval between announcement and implementation. Management must understand the purpose here is to provide ample transition time for conscientious employees to adapt to the change, and also to allow for any possible objections which might be forthcoming from individuals or the union. Finally, management should remove or rescind all previous written directives regarding the practice. Should an agency desire to change a long-standing past practice which does not constitute a matter within the scope of representation, that change will not be subject to meet and confer. For example, in one case a Sheriff’s Department had a longstanding practice of permitting a deputy under investigation to access their investigative file prior to the start of his or her investigative interview. The Sheriff eventually determined that this practice undermined the integrity of the disciplinary investigation and issued an order delaying access to the investigative file until after

Labor Relations: The Meet and Confer Process ©2019 (s) Liebert Cassidy Whitmore 24