By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors. Please submit your questions to: legalmailbagcasciacorg. _________________________________________________________________________________________

Dear Legal Mailbag:

I have been keeping a careful eye on one of my teachers. He seems never to be around when I need him, and he is quite the slippery character. He always seems to have a good excuse for being unavailable when I am looking for him. However, what I do know is that he takes every personal day he has every year, as well as most of his sick leave. I was therefore quite annoyed by his gall when he told me that he wants to leave school early on Tuesdays to take a class. He does have a free period at the end of the day, but I have no interest in rewarding a malingerer with permission to leave early every Tuesday. Trying not to smile, I told him that I would not be granting his request, and I thought that would be the end of it.

Yesterday, the teacher showed up at my office again, this time with the union in tow. This time he wasn’t asking; he was telling. He said that he needed to take this class to move on the salary schedule, and that he had the right to leave early to do so. When I asked where he got that from, the steward piped up. He told me that he had done some research and found out that two years ago I let a teacher leave early to take a class, albeit on Wednesdays. He claimed that I had created a past practice, and that, unless I want union trouble, I should let the slippery teacher leave early for class as well. I bravely told them that I wouldn’t be changing my mind. However, now I am wondering just what “union trouble” awaits me. What gives?

Signed,
Annoyed Administrator

Dear Annoyed:

The union’s claim here is pretty weak, but it does remind us of the adage that no good deed goes unpunished. Past practice is an important concept in labor relations. Briefly put, it goes like this. Employers and unions negotiate over wages, hours and conditions of employment, and those negotiations result in a collective bargaining agreement. However, there are many working conditions in a school, and no contract covers everything. Therefore, the labor boards and the courts have ruled that working conditions that are not in the contract are considered past practice. Moreover, they have ruled that employers cannot make changes in such past practices without negotiations. When unions assert “past practice,” they are asserting their right to negotiate over a proposed change before it is made.

Past practices arise over time and are supported by a consistent way of handling similar situations. Once they arise, however, they are binding until the employer negotiates a change in the practice. Here, it is a stretch for the union to claim that letting one teacher leave early two year ago to take a class somehow created a past practice that now provides that any teacher can leave early to take a class. However, this situation is a cautionary tale. You must consistent in how you treat all teachers. If you grant special favors to teachers you like, you may find yourself obliged to do the same favors for everyone.