One of the functions of a union is to negotiate matters related to compensation and working conditions for all unit members. The FA unit members are all faculty working in the district and the outcomes from those negotiations are recorded in the Agreement (the contract agreed to by both FA and the District) and its associated appendices and MOUs. However,there are a variety of contexts in which the faculty in the district work. Faculty in some fields might work with hazardous materials; faculty in other areas might travel with students for field trips or sporting events; some faculty supervise students working in clinical job sites. Given this variety, it is impossible for the Agreement to address all the working conditions for all faculty. Furthermore, the language of the contract needs to be flexible enough to be applied across this variety of contexts. “Past Practice” is a legal term that extends contract language to include the practices around the implementation of contract language.
A past practice is not just something that has been done before; “past practice” has a specific legal definition. From a legal perspective, a past practice is related to collective bargaining matters and must be (1) long-standing, (2) uniformly applied, (3) uniformly understood by both faculty and their manager, and (4) consistent with the Agreement and state and federal laws. “Long-standing” is understood to be several years, not weeks, or months, or even one year. About three years is the generally accepted length of time for an otherwise qualified procedure to be considered a past practice. The more years a past practice is in place, the more established it becomes. Just as the Agreement is not a perfect document covering all considerations, the same is true of past practices. Thus, “uniformly applied” means the practice is used predominately within the scope of its application and there may be necessary exceptions. For example,faculty expertise or legitimate faculty or department needs might lead to variation in application of a scheduling practice.Such departures from “uniformly applied” would not disqualify the practice from being a past practice. “Uniformly understood” means both faculty and management recognize and acknowledge the practice. New faculty and new deans coming into a division and department can mean that a past practice is not known by all, so “uniformly understood”requires substantial, not absolute consensus. “Consistent with the
Agreement and state and federal laws” means past practices cannot conflict with the contract language or any state or federal laws that may apply. For example, a department cannot establish a past practice of having full-time faculty teach part of their load on the weekends because the Agreement states that the normal academic workweek is between Monday and Friday (Article 10.2).
Some areas of the contract specifically refer to past practice. Article 9.5 states, “Past practice in assigning the number of preparations to faculty employees shall be maintained, except that a contract or regular faculty employee shall be assigned no more than three preparations of classes of three or more units in any quarter unless the faculty employee agrees to accept additional preparations.” When past practices are specifically called out in the Agreement, they haveadded protection and can only be changed through the negotiations process. For example, load factors in the district were based on past practice until 2016 when the District and FA conducted a study and established a load factor table that is now used to assign load factors to courses.
Other past practices, like those related to scheduling, are established when faculty and administrators, typically deans,reach a consensus about how a specific procedure is to be done, and then the procedure is widely recognized and followed for three or more years. These procedures would be considered past practices if they meet the four criteria outlined above. This means that past practices can be established both intentionally and unintentionally. These past practices can be changed in a two-step process: 1) faculty and manager agree to a revision (as long as it is consistent with the Agreement), and 2) after being uniformly understood and consistently applied for about three years, it becomes the new past practice. Thus, FA encourages divisions and departments to review policies and practices each academic year. Doing so not only assures that both faculty and managers are informed and up-to-date on how business is conducted within the division, but can also help prevent future misunderstandings and disagreements. Faculty with questions or who would like assistance with documenting their department and division past practice should contact the FA office (650.949.7544).
