Past practice and other arcane collective-bargaining matters

Now that the spring semester is over, it’s time for me to catch up on a bunch of reading. In the current-higher-ed-commentary genre, I just finished Matt Reed’s Confessions of a Community College Administrator, and am looking forward to Jeff Selingo’s College (Un)bound, which came out this week. I thoroughly enjoyed Reed’s book, though I have some (expected) disagreement with his comments about tenure and a few other matters. I need to ponder his broader argument a bit more, and the following discussion in the collective-bargaining weeds should not dissuade you from reading Reed’s book. It is what my mind grabbed on to as an issue few other readers would know about.

Briefly, I think Reed overestimates the authority of past practice in a unionized context. What he describes of past practice is somewhat close to my understanding of adverse possession in property law: if a union can allege a pattern of practice, they can use that (even poorly-documented) claim in effect as a contractual right that can contradict the written contract and (unlike adverse possession) without firm documentation. That land rights grab is much broader than what I understand the principle to be: I think of past practices as clear, documented commitments by behavior that can clarify an otherwise-ambiguous existing contractual clause but cannot override what the contract says explicitly.

The classic work on past practice is a 1961 book chapter by Richard Mittenthal that focuses on past practice as part of the (then-new) literature on arbitration principles. Arbitration is the common last (and binding) step for resolution of grievances if they cannot be resolved informally or at previous formal stages. In collective bargaining, arbitration is a quasi-judicial administrative hearing heard and decided upon by a neutral third party (usually someone trained by the American Arbitration Association). In his 1961 article, Richard Mittenthal identifies a number of criteria by which an arbitrator can judge whether the history of managerial decisions constitutes a past practice that is binding on the parties:

  • The clarity and consistency of action: Is the behavior objectively clear, with minimal variation?
  • Longevity and repetition: Is the behavior longstanding and the common response to a coherent set of circumstances?
  • Knowledge and acquiescence: do both the union and upper-level management know about and acquiesce to the practice?
  • Is the behavior something that is clearly a mutual commitment?

The principle here is that a contract is not meant to capture everything about labor relations, and that if consistent practices on the ground demonstrate a long-term understanding by both parties, neither party (generally the union’s members) should be punished by the fact that the long-term understanding was not captured in contractual language. For an example of an arbitrator making a decision based on past practice in a community college, see a 2005 arbitration ruling involving an Ohio CC by N. Eugene Brundige. I see Brundige’s explanation towards the very end of the ruling as telling: “If ambiguity [in the contract] exists, then a binding past practice does appear to be present” (emphasis added). Mittenthal leaned towards the narrower interpretation of past practice (the type of reasoning in Brindge’s ruling) as relevant to arbitration: “The mere existence of a practice, without more, has no real significance. Only if the practice clarifies an imperfectly expressed contractual obligation or lends substance to an indefinitely expressed obligation or creates a completely independent obligation will it have some effect on the parties’ relationship” (p. 34). At least in my limited experience, arbitrators are unlikely to use past practice to justify rights of either party in express contradiction of contractual language, and a chapter by Gregory Saltzman in the 2010 NEA Almanac of Higher Education is consistent with that impression, as are a number of webpages from private-employee unions. Only with a very small group of arbitrators can a party to an agreement successfully argue that past practice undermines express contractual language. And even in the context of clarifying existing language or filling a gap, past practice requires documentation with the burden on the party alleging the past practice.

My observation here is tentative: I know a small piece of Reed’s experience from a brief email exchange, plus an interesting explicit reference to past practice in the current collective bargaining contract of the County College of Morris (Reed’s first public CC job). Apart from that explicit reference, the CCM contract does not have a zipper clause1 that might be interpreted in the way Reed describes. But that may not be the whole story, as contract language changes. Further, while my (lay) understanding of past practice is that only a very small number of arbitrators would view past practice as expansively as Reed claims, maybe they are all concentrated in New Jersey (or maybe New Jersey and also Massachusetts, where Reed currently works). Finally, college administrators (and a CC’s in-house or contracted lawyer) may recommend avoiding grievances based on past practice, and so the informal (if incorrect) understanding spread, that any and all past practice claims are binding commitments. But my sense of the world and experience suggests that if Reed is operating on the assumption that vague allegations of past practice are binding, he is practicing “defensive administration.”

Does this matter to Reed’s overall argument? Not really, since his proposals in Chapter 6 are not directly about faculty relationships. But I think he somewhat exaggerates the portion of inertia that is attributable to union contracts and their enforcement.

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  1. A zipper clause is something that is broadly inclusive in an “everything not talked about explicitly here” sense, and contracts can have zipper clauses that confer expansive rights on either a union or management. []