Originally appeared in the CAS Weekly Newsletter. Written by Attorney Thomas B. Mooney.
Dear Legal Mailbag:
As a new principal, I think that I have been a little intense and, frankly, I don’t think that I have been very popular with the staff members at my school. As a New Year’s resolution, I have decided to project a kinder and gentler leadership style. Just today, I was looking out the window on a snowy Friday and I saw an opportunity to be Ms. Nice Guy. I decided to let all my staff members leave work when the last bus departed, and made the announcement over the PA system. I was gratified to see the smiles of excitement as staff members rushed off to their cars to get an early start on the weekend.
I was therefore surprised an hour later to get a call from the superintendent. He was very concerned that I have created a huge problem, not only for me but also for the school district. He asked me if I have ever heard of “past practice” (I have not), and he told me that he is worried that staff members are now going to expect to be let out of work early whenever it snows on a Friday. What on earth is “past practice” and how much trouble am I in?
No More Ms. Nice Guy?
Dear Ms. Nice:
Your actions, though well-intentioned, were ill-advised. But I think that the superintendent may have overreacted and, as long as you are appropriately apologetic and grateful for this “learning experience,” you should be fine.
Past practice is an important labor relations concept that applies to unionized employees. Employers have a duty to negotiate with union representatives over “wages, hours and conditions of employment,” and that responsibility is not limited to negotiations over a successor collective bargaining agreement. Rather, as labor relations principles have evolved, the labor boards and the courts have recognized that employers and employees cannot practically bargain over every different working condition that governs the workplace. Accordingly, in addition to negotiating and adhering to collective bargaining agreements, employers have a duty to refrain from unilateral changes in working conditions that are not covered by the contract. Those working conditions are considered “past practice,” and the employer may change a past practice only through negotiations.
Past practices evolve over time, and some impose obligations and expectations on employees and others impose obligations on the employer. Being “nice” in one situation (e.g., permitting teachers to take personal leave to shop on sale days or to leave early on a snowy Friday, as you did here) can evolve into past practices that you, the superintendent and the board of education would then have to negotiate to change. It is important, therefore, to be careful not to change past practices, even to be “nice,” without thoughtful consideration as to implications for the future. In consultation with the superintendent, it is possible to be “nice” in particular cases, but you must be careful to have union agreement that a particular accommodation will be considered an exception and that it will not be cited as a “past practice” in the future. In short, in this arena, sometimes indeed “no good deed goes unpunished.”
That all said, I do suggest that you try to get Mr. Superintendent to relax here. You made a decision here, once, and the union would be hard-pressed to claim that you have established a new past practice through this single decision. On the next snowy Friday, you may well be asked by employees whether they can leave early and you can simply answer that your previous action was a mistake and that any changes in the work schedule are above your pay grade.
Please submit your questions to: firstname.lastname@example.org.