Dear Legal Mailbag:

I was appointed this fall to serve as an assistant principal at a new school. Each school has its customs and traditions, and my new school is no exception. I was particularly surprised, however, to see that the teachers here scatter to the four winds at lunch every day. In my old school, we had to sign out so that the principal would know that we had left the building and could keep an eye out for our return.

It seemed wrong that teachers could just leave the building without any accountability, and I delved deeper into this question. I was surprised and pleased, therefore, to find that the teacher contract addresses this situation. It specifically provides that “Teachers must sign out when leaving their school during the school day and must sign back in when they return.” Delighted to bring some clarity to the situation, I purchased a nice notebook and left it at the front desk with a note reminding teachers of their obligation to sign out before leaving the building.

The day after I set out the notebook, some union types paid me a visit. They told me that teachers at my school have never been expected to sign out. Warning me against “violating past practice,” they told me that, if I know what’s good for me, I should promptly remove the notebook, apologize for my confusion, and inform teachers that they are again free to leave at lunch as they see fit. Help!?!

Eager Beaver

Dear Eager:

Your energy and initiative are an inspiration to the rest of us. The question is whether you overstepped here, and Legal Mailbag says that you did not.

“Past practice” is an important concept, and Legal Mailbag appreciates the opportunity to explain it. When employees are unionized, the employer and the union must negotiate over “wages, hours and conditions of employment.” However, it would be way too much trouble if the parties had to negotiate contract terms for all working conditions. Instead, the parties negotiate over key working conditions as either party may propose, and the remaining conditions of employment are subject to the “past practice” rule, i.e., working conditions that are not addressed in the contract may not be changed without prior negotiations. That last point is worth repeating and clarifying — past practice does not cause the related working condition to be binding; it can be changed, but only through negotiations.

“Past practice” can also be relevant in interpreting ambiguous contract language. If the meaning of a specific contract provision is not clear, the parties (and arbitrators on review) look to how the contract language has been interpreted in the past. That “past practice” will often clarify ambiguous contract language and give it meaning. Conversely, however, unambiguous contract language will be binding irrespective of whether the contract language was enforced in the past.

Here, the contract language you found requiring that teachers sign out upon leaving the building is clear. Accordingly, the failure of prior administrators to enforce this clear contract provision does not establish a new “past practice,” and you remain free to enforce the contract as written. Just don’t expect to receive many thank-you notes as you do.

Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.