February 2012
Chief of Labor Relations Corner

Chief of Labor Relations
Michael Eagleson

Safety Negotiations Update

For the past three months SEBA and the County have been in the process of negotiating a successor MOU for the Safety Unit. During this time, there has been little or no progress. Due to the lack of movement from both sides, SEBA Attorney Steven Silver recommended having a mediator come in and attempt to assist the parties in reaching an agreement. This meeting is scheduled for January 26th. The mediator will be Draza Mrvichin. Mr. Mrvichin was a mediator for the State of California before retiring and going into private practice.

SPO Negotiations Update

On December 21, 2011, the Specialized Peace Officer Unit ratified the arbitrator’s award for a successor MOU by a 71.8% margin. Out of the 377 bargaining unit members, 277 members voted. This was a marked improvement from the previous vote where only 130 members voted. I would like to thank the SPO negotiating team as well as the Station Directors for the SPO unit for their tireless efforts.

Past Practice!

Over the years there has been much discussion on the theory of “Past Practice” and what it actually means to the Association. This article will provide the basic framework of this theory.

Past practice is one of the most useful and hence commonly used aids in resolving grievance disputes. It can help an arbitrator a variety of ways in interpreting a Memorandum of Understanding. It may be used to clarify what is ambiguous, to give substance to what is general, and perhaps even modify or amend what is seemingly unambiguous. It may also, apart from any basis in the agreement, be used to establish a separate, enforceable condition of employment.

Although the facts in a grievance arbitration may be readily ascertainable, an arbitrator must still determine what their significance is, whether they add up to a practice, and if so, what that practice is. Thus, in deciding the threshold question of whether a practice exists, an arbitrator must look to the organizational setting rather than the theories of contract administration.

The conception of what constitutes a practice differs from one employer to another and from one association to another; however there are certain characteristics that typify most practices. These characteristics have been noted in many arbitration awards.

First, there should be clarity and consistency. A course of conduct that is vague and ambiguous or has been contradicted as often as it has been followed does not qualify as a practice. However where those in an organization invariably respond in the same way to a particular set of conditions, their conduct may well turn into a practice.

Second, there should be longevity and repetition. A period of time has to elapse during which a consistent pattern of behavior emerges. Hence, one or two isolated instances of a certain conduct do not establish a practice. Just how frequently and over how long a period something must be done before it can be characterized as a practice is a matter of judgment for which no formula can be devised. However, the longer the behavior has been followed, the greater the chance of it becoming a practice.

Third, there should be acceptability. The employees and the supervisors alike must have knowledge of the particular conduct and must regard it as the correct and customary means of handling a situation. Such acceptability may frequently be implied from long acquiescence in a known course of conduct.

Finally, the significance to be attributed to a practice may possibly be affected by whether or not it is supported by mutuality. Some practices are the product, either in their inception or in the application of a joint understanding.

In short, something qualifies as a practice if it is shown to be the understood and accepted way of doing things over an extended period of time.

If you have any questions regarding this article give me a call at the SEBA office.