§ 28-9-27. Use of past practices in arbitration hearings.
(a) An arbitrator shall have the authority to consider the existence of a past practice
that may exist between the parties to a collective bargaining agreement only under
the following circumstances:
(1) The collective bargaining agreement does not contain an express provision that is
the subject of the grievance; or
(2) The collective bargaining agreement contains a provision that is unclear and ambiguous;
or
(3) The collective bargaining agreement contains a provision which has been mutually agreed
upon by the parties that preserves existing past practices for the duration of the
collective bargaining agreement.
(b) A party claiming the existence of a past practice shall be 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; and
(5) Has been accepted by representatives of the parties who possess the actual authority
to accept the practice.
(c) A past practice that may exist between the parties to a collective bargaining agreement
may not override any contrary provision of an existing collective bargaining agreement,
statute, or ordinance.
(d) A past practice that may exist between the parties to a collective bargaining agreement
may not override any contrary provision of any written rule, regulation, or policy
that has been promulgated, adopted, and published pursuant to either the administrative
procedures act, chapter 35 of title 42, or promulgated and published by the appropriate governing entity in a city or town.
(e) Any party to a collective bargaining agreement may provide written notice to the other
party that it no longer intends to be bound by a past practice unless the collective
bargaining agreement contains a provision that has been mutually agreed upon by the
parties that preserves existing past practices for the duration of the collective
bargaining agreement. This notification must describe the past practice and set forth
the effective date of the termination of the practice. Neither party is obligated
to follow the practice thirty (30) days following this notification.