FEDERAL MEDIATION AND CONCILIATION SERVICE In the Matter of the Arbitration between FMCS No. 89-06881

Grievance No. DC-138429 UAW LOCAL 62, Union, and JACKSON INNOVA CORPORATION, Company. __________________________________/

OPINION OF THE ARBITRATOR

March 21, 1989

After a Hearing Held March 6, 1989 In Jackson, Michigan

For the Union: A.O. Smith, Jr. International Representative Region 1-C, UAW 1002 East South Street Jackson, Michigan 49203

For the Company:

F. Kenneth Hall President, Jackson Innova Corporation

2001 Wellworth Avenue Jackson, Michigan 49203

Issue and Decision On September 15, 1988, the following notice was posted on the bulletin

board of the Company's Jackson Drop Forge plant:

TO TRY TO IMPROVE THE PRODUCTIVITY IN THE HAMMER SHOP EACH HAMMER CREW WILL BE COMPOSED OF TWO HAMMERMAN AND ONE HEATER. TRIMMER CLASSIFICATION IS ELIMINATED. THE HAMMERMAN WILL ALTERNATE ON THE HAMMER AND THE TRIM PRESS. THIS CHANGE WILL BE IN EFFECT SEPTEMBER 19, 1988.

See JX 1. The management rights clause of the collective bargaining agreement

("CBA") provides:

Nothing in this Agreement shall be deemed to limit the Company in any way in the exercise of customary functions of management unless otherwise expressly provided herein, and all management rights are reserved, including but not limited to the making and enforcing of Company rules and regulations, the direction of the working force, the right to change operations, change production equipment, add or remove machinery, change production methods and facilities, regulate quality and quantity of production, the right to relieve employees from duty, and to employ, lay off, transfer, suspend, demote or discharge employees for just cause, as the operation of the plant may require, to determine the starting and quitting times, the number of hours to be worked, including a reasonable amount of overtime, the number of shifts, the schedules of work, or to move the plant to another location, or sell, lease or liquidate the operation as the Company shall deem necessary.

See JX 2 @ 3; emphasis supplied. The issue presented is whether, under the management rights clause, the

Company had the right unilaterally to make the changes announced in the

notice. I conclude that it did not. However, because the Union presented no

evidence of damage, back pay is denied.

Discussion The Company argues that the CBA does not expressly provide that the

Company cannot change the composition of three-man hammer crews from

operator (i.e., hammerman), heater, and trimmer, to two operators and one

heater, with the operators alternating on the trim press. However, the CBA

expressly refers to operators, heaters and trimmers, and past practice reveals

that, except on the 10,000# hammer, standard crews have consisted of an

operator, heater and trimmer for at least 28 years.

The applicable legal principles are explained in Hill & Sinicropi,

Management Rights (BNA 1986), ch 2, "The Role of Past Practice":

Few questions in contemporary American labor arbitration are more difficult than determining when a past practice exists and when, if ever, it should be given the same status as if it were included in the written contract. In 1960 the United States Supreme Court approved the inclusion of past practices as part of the total bargaining of parties. The late Justice William O. Douglas, in Steelworkers v Warrior & Gulf Navigation Co., stated:

The labor arbitrator's source of law is not confined to the express provisions of the contract, as the industrial common law - the practice of the industry and the shop - is equally a part of the collective bargaining agreement although not expressed in it.

Arbitrator Arthur Jacobs stated both the principle and the rationale for according deference to the parties' past practices in Coca-Cola Bottling Co.:

A union-management contract is far more than words on paper. It is also all the oral understandings, interpretations and mutually acceptable habits of action which have grown up around it over the course of time. Stable and peaceful relations between the parties depend upon the development of a mutually satisfactory superstructure of understanding which gives operating significance and practicality to the purely legal wording of the written contract. Peaceful relations depend, further, upon both parties faithfully living up to their mutual commitments as embodied not only in the actual contract itself but also in the modes of action which have become an integral part of it.

Likewise, Arbitrator Whitley McCoy, in Esso Standard Oil Co., declared that under certain circumstances custom can form an implied term of contract, stating:

Where the Company has always done a certain thing, and the matter is so well understood and taken for granted that it may be said that the Contract was entered into upon the assumption that that customary action would continue to be taken, such customary action may be an implied term.

Arbitrator Marl in Volz likewise recognized that the contractual relationship between the parties normally consists of more that the written word. Volz noted that day-to-day practices mutually accepted by the parties' collective bargaining agreement, particularly where these practices are not at variance with any written provision, are long-standing, and were not changed during contract negotiations.

Id. at 20-21; footnotes omitted. The matter before me involves not a practice about which the CBA is

silent, but one to which it speaks. Exhibit A to the CBA, which covers the

Hammer Shop, contains no fewer than twenty-six (26) express references to

operators, heaters and trimmers. See JX 2 @ 32-37. A few illustrations are

compelling:

The daily bonus will be paid as follows:

Operator Heater Trimmer

- - -

$8.50 $7.50 $6.75

See JX 2, ¶8 @ 32. Sample Rate: Hammer #1 (5,000#) and #2-4 (4,000#)

Operator Heater Trimmer

- - -

$10.75 per hour $9.70 per hour $8.60 per hour

See JX 2, ¶13 @ 33. The Company argues that these many references mean only that crews

may consist of operators, heaters and trimmers. The Union's position is, of

course, that inclusion of a trimmer is mandatory. At the very least, these twenty-

six express references create an ambiguity regarding crew composition, the

resolution of which requires resort to extrinsic evidence. Hill & Sinicropi,

Evidence in Arbitration (BNA 1987), @ 348-349. The uncontradicted testimony

of Robert Fiddler, who has worked at the plant for twenty-eight years, was that,

except on the 10,000# hammer, the standard crew always has consisted of one

operator, one heater and one trimmer. The exception for the 10,000# hammer is

noted in the CBA by asterisks ("When there aren't two qualified operators").

See, for example, JX 2, ¶ 31 @ 36. Mr. Fiddler's testimony was consistent with

the twenty-six express references to operators, heaters and trimmers contained

in Exhibit A to the CBA and explains the meaning of those references. See

Management Rights, supra, @ 39-42.

The Company, apparently under new management, makes several

arguments worthy of note. First, the Company urges that it is a sad state of

affairs if management cannot institute changes which it sincerely believes are

beneficial. The difficulty with such an argument is that it is one of labor policy,

not contract. Arbitrators interpret and apply labor contracts; they do not decide

labor policy. See JX 2 @ 7, limiting authority of arbitrator. If the Company

wants the composition of work crews changed, it is free to offer to negotiate

with the Union.

Next, the Company argues that the changes are beneficial for all parties.

The Company points out that the wages of an operator are higher than those of a

trimmer, so that employees have been given the opportunity to increase their

earnings. The Company also claims that productivity is increased and

employees can earn production bonuses. The Company insists that work quality

is improved. The Company points out that the position of hammerman is

physically demanding and hammermen, by alternating as trimmers, will not tire

as much during shifts and will be subjected to less stress over their lifetimes.

The Company simply cannot be faulted as having any improper motives

in making the crew changes. Indeed, the Company seems to have acted with the

best of intentions. In Local 7-591, OCAW International Union and Pennwalt

Corp, FMCS No. 88-10581 [105 LRP 55076 (Cornelius Arb 1988)], I upheld

crew changes based upon the installation of new equipment. Here, however, the

Company offers no changes in products, equipment or processes that might

justify a change in work crews. Instead, it offers only its own sincere desire for

change, mid contract. The difficulty is that the CBA and federal labor law forbid

a unilateral change of a decades-old practice, absent changed circumstances.

Lastly, the Company claims that it experimented with crew changes in

duly and August of 1988, without objection from the Union, so that a grievance

filed in September over the changes is untimely. It is unclear that the Union was

aware that anything was afoot earlier in the summer. Both parties agree that,

from time to time, two operators have been, and rightfully may be, assigned to a

crew when trimmers are unavailable. Because two-operator situations arise

naturally, the Union could not have been expected to divine a major change in

crew composition from the mere fact that two operators were assigned to some

crews in July and August. Moreover, the notice plainly stated that the change

was to take place in the future. The very day the change was announced

formally, the grievance was filed and therefore was timely. See JX 2 @ 4.

The Union claims that trimmers with more seniority have been displaced

by operators with less, and requests back pay for all trimmers affected. The

difficulty with this request is that the Union presented absolutely no evidence of

any particular trimmer who has been affected adversely by the crew change.

The Union offered not one name, Social Security number or clock number of a

trimmer who claims to have been displaced, and did not document a single

instance of actual displacement. Thus, the record is devoid of any evidence upon

which an award of back pay could be based.

Award

For the foregoing reasons, the grievance is sustained, but back pay is

denied for lack of evidence. The Company shall rescind its notice of September

15, 1988, and shall assign work crews as it has done in the past. The Company

shall pay the costs and expenses of the arbitrator. See JX 2 @ 7.

DATED: March 21, 1989 ______________________________ E. Frank Cornelius, Arbitrator