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September 27, 2019

Arbitrator's consideration of "past practices" in resolving a collective bargaining dispute may be limited



A collective bargaining agreement between the School District [District] and the Teachers Association [Association] provided that "covered teachers shall be paid graduate hour compensation ... for additional study approved by the chief school administrator" up to a specified maximum number of semester hours beyond the bachelor's degree.

The Association filed a contract grievance on behalf of a number of teachers after the District refused to pay the teachers for graduate study hours earned prior to their employment by the District.

The contract was silent with respect to payment for "pre-employment" graduate study. An arbitrator, however, decided that these teachers should be paid for graduate study credits completed before they were hired by the District because of the District's "past practice" of granting "salary enhancement to newly hired teachers."

Supreme Court vacated this arbitration award, and the Association appealed. The Appellate Division affirmed the lower court's ruling to deny payment for graduate credits earned prior to employment by the District.

The Appellate Division explained that past practices may be considered by an arbitrator only when interpreting a specific contractual provisions covering the issue in dispute or when the agreement expressly allows for the consideration or  inclusion of past practices in fashioning a remedy.

Here the controlling collective bargaining agreement did not provide for the inclusion of benefits characterized as based on past practices. Furthermore, the arbitrator acknowledged that the agreement did not cover the situation before him.  Noting that the agreement "expressly provides that an arbitrator's decision shall be final and binding only as to the interpretation of the contract," the Appellate Division said that it was not persuaded by the Association's contention that the arbitrator "merely considered past practices as an aid to interpretation of the contract."

Rather, the Appellate Division decided that the arbitrator's decision "derived not from the contract ... but, rather, apparently from his deliberate and intentional consideration of matters dehors [i.e., is foreign to] the contract" and dismissed the Association's appeal.


The decision is posted on the Internet at:

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