§ 28-9-27 - Use of past practices in arbitration hearings.
SECTION 28-9-27
§ 28-9-27 Use of past practices inarbitration hearings. – (a) An arbitrator shall have the authority to consider the existence of a pastpractice that may exist between the parties to a collective bargainingagreement only under the following circumstances:
(1) the collective bargaining agreement does not contain anexpress provision that is the subject of the grievance, or
(2) the collective bargaining agreement contains a provisionthat is unclear and ambiguous, or
(3) the collective bargaining agreement contains a provisionwhich has been mutually agreed upon by the parties that preserves existing pastpractices for the duration of the collective bargaining agreement.
(b) A party claiming the existence of a past practice shallbe required to prove by clear and convincing evidence that the practice;
(1) is unequivocal;
(2) has been clearly enunciated and acted upon;
(3) is readily ascertainable;
(4) has been in existence for a substantial period of time;
(5) has been accepted by representatives of the parties whopossess the actual authority to accept the practice.
(c) A past practice that may exist between the parties to acollective bargaining agreement may not override any contrary provision of anexisting collective bargaining agreement, statute or ordinance.
(d) A past practice that may exist between the parties to acollective bargaining agreement may not override any contrary provision of anywritten rule, regulation, or policy that has been promulgated, adopted, andpublished pursuant to either the Administrative Procedures Act or promulgatedand published by the appropriate governing entity in a city or town.
(e) Any party to a collective bargaining agreement mayprovide written notice to the other party that it no longer intends to be boundby a past practice unless the collective bargaining agreement contains aprovision which has been mutually agreed upon by the parties that preservesexisting past practices for the duration of the collective bargainingagreement. This notification must describe the past practice and set forth theeffective date of the termination of the practice. Neither party is obligatedto follow the practice thirty (30) days following this notification.