In a recent United States Supreme Court decision, Mr. Justice Douglas, speaking for the majority, stated that "the labor arbitrator's source of law is not confined to the express provisions of the contract, as the industrial common law-the practices of the industry and the shop-is equally a part of the collective bargaining agreement although not expressed in it." When compared to actual management-union experiences in contract administration, this dictum seems unduly broad. It may be premature as well, for no coherent "rationale of grievance arbitration" has yet been developed. If such a rationale is to be achieved, far more work must be done in identifying and analyzing the standards which serve to shape arbitral opinions. The purpose of this paper is to examine in depth one of the more important standards upon which so many of our decisions are based-past practice. Custom and practice profoundly influence every area of human activity. Protocol guides the relations between states; etiquette affects an individual's social behavior; habit governs most of our daily actions; and mores help to determine our laws. It is hardly surprising, therefore, to find that past practice in an industrial plant plays a significant role in the administration of the collective agreement.
Past Practice and the Administration of Collective Bargaining Agreements,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol59/iss7/3