In Ohio's public sector labor landscape, some of the most binding workplace rules aren't found in any contract. These unwritten customs, known as "past practices," can carry the same legal weight as formal collective bargaining agreements, and understanding their power is essential for both unions and public employers navigating the complexities of labor relations.

Understanding Past Practice in Ohio Labor Law

The State Employment Relations Board (SERB) recognizes past practice as a "custom or practice evolved as a normal reaction to a recurring situation." For such a practice to become legally binding, it must represent an accepted course of conduct that has been characteristically repeated in response to specific circumstances over time. The nature of the practice, its duration, and the reasonable expectations it has created among the parties all factor into whether it has achieved protected status.

This concept gains particular significance when collective bargaining agreements remain silent on specific issues. In these situations, SERB evaluates whether the practice constitutes a "term or condition of employment" and whether it falls under mandatory or permissive bargaining subjects. The Ohio Revised Code Section 4117.08(A) requires collective bargaining over all matters pertaining to wages, hours, and terms and conditions of employment. Even decisions that fall within inherent managerial policy require bargaining under Section 4117.08(C) if they affect these fundamental employment conditions.

The Southeast Local School District Case: When Tradition Becomes Contract

The case of State Employment Relations Board v. Southeast Local School District Board of Education illustrates how deeply rooted practices can become enforceable obligations. For decades, even predating Ohio's Public Employees' Collective Bargaining Act of 1984, the Southeast Local School District had consistently offered supplemental contract positions to bargaining unit members first. The Athletic Director position, the highest paying supplemental contract, had been held by bargaining unit member Richard Young annually since 1988.

When the District attempted to reassign the Athletic Director duties to a non-bargaining administrative position in 2001, they faced immediate pushback from the Euclid Teachers Association. Despite repeated warnings from the union that such changes required negotiations, the District proceeded unilaterally, claiming they had no duty to bargain.

SERB disagreed forcefully. The Board found that the District's unilateral reassignment constituted an unfair labor practice, determining that the longstanding practice had created a mandatory subject of collective bargaining. Applying a three-prong balancing test, SERB concluded that the Athletic Director position was logically related to wages and working conditions, that the unilateral change was not necessary for the District's educational mission, and that collective bargaining was the appropriate mechanism for resolving the conflict between management interests and employee rights.

Significantly, SERB rejected the District's argument that the union had waived its bargaining rights. The union's consistent assertions that changes required negotiation preserved their rights, and the District's unilateral action created a "fait accompli" that rendered formal bargaining requests futile. SERB ordered the District to cease its violations, reinstate Young with back pay, and restore the status quo.

The Clark County Case: Past Practice During Organizing Campaigns

The State Employment Relations Board v. Clark County Board of Developmental Disabilities case demonstrates how past practices take on heightened importance during union organizing efforts. For at least a decade, the Clark County Board of Developmental Disabilities had maintained an annual practice of granting across-the-board wage increases to all non-unionized employees, typically approved in June. This consistent practice created clear expectations among the workforce.

When Registered Service Workers filed for a representation election in May 2009, the DD Board suddenly denied them the expected 2.5 percent wage increase while simultaneously granting that exact increase to all other non-union employees. The Board explicitly stated that the workers' decision to seek union representation was the reason for withholding the raise.

SERB found multiple violations in this conduct. The denial of expected wage increases during an organizing campaign constituted interference, restraint, and coercion under Section 4117.11(A)(1). The Board's actions created a coercive environment designed to dissuade employees from unionizing. Additionally, SERB found that the DD Board had interfered with the formation and administration of an employee organization and had discriminated against workers for engaging in protected activity.

The ruling emphasized that when an employer has an established practice of providing a benefit, it becomes part of the status quo that must be maintained during representation elections. The DD Board's failure to maintain this status quo, combined with its explicit anti-union messaging, warranted a new election, back pay for denied increases, and cease and desist orders.

Strategic Implications for Unions

These cases offer crucial lessons for union representatives in Ohio's public sector. First and foremost, unions must meticulously document consistent workplace practices, especially those relating to wages, hours, and working conditions. Even practices that predate collective bargaining agreements or exist outside formal contracts can create enforceable rights.

When employers attempt unilateral changes to established practices, unions should respond immediately and in writing, asserting their bargaining rights. The Southeast Local case demonstrates that consistent assertion of bargaining rights prevents waiver arguments and preserves the union's position even when employers proceed unilaterally. Silence or acquiescence can be fatal to preserving these rights.

Unions should also recognize that past practices gain special protection during organizing campaigns. The Clark County case shows that employers cannot use changes to established practices as weapons against organizing efforts. This protection extends to both existing bargaining units facing changes and new groups of workers seeking representation.

The Limits of Management Rights Clauses

While management often relies on broad management rights clauses to justify unilateral action, these clauses do not automatically override established past practices. SERB requires a "clear and unmistakable" waiver of bargaining rights, meaning general language in a collective bargaining agreement will not suffice to eliminate obligations created by longstanding practices.

This standard places the burden on employers to demonstrate that unions have explicitly and intentionally relinquished their rights to bargain over specific practices. Vague references to management prerogatives or general zipper clauses may not provide sufficient protection for employers seeking to alter established customs.

Building Stronger Labor Relations Through Recognition of Past Practice

Understanding past practice doctrine serves the broader goal of fostering orderly and constructive labor relations in Ohio's public sector. For unions, it provides protection for beneficial workplace customs that have developed over time, ensuring that workers' reasonable expectations are honored even when not reduced to writing. For employers, it emphasizes the importance of consistency and good faith in labor relations.

The power of past practice in Ohio public sector labor law cannot be overstated. These unwritten rules shape the daily reality of public employment just as surely as formal contracts. By recognizing and respecting these practices, both unions and employers can build more stable, predictable labor relations that serve the interests of workers, management, and the public they jointly serve.

As labor relations continue to evolve in Ohio, the doctrine of past practice remains a cornerstone principle that protects worker rights and promotes stability in public employment. Unions that understand and effectively invoke these protections will be better positioned to serve their members and preserve the benefits that generations of public workers have earned through consistent practice and mutual understanding.

This blog post is for informational purposes only and does not constitute legal advice. Each case is unique, and you should consult with a Ohio Union Labor Attorney about your specific situation.