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: For the Company:

A.O. Smith, Jr. F. Kenneth Hall

International Representative President,
Region 1-C, UAW Jackson Innova Corporation
1002 East South Street 2001 Wellworth Avenue
Jackson, Michigan 49203 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 - $8.50
Heater - $7.50
Trimmer - $6.75

See JX 2, ¶8 @ 32.

Sample Rate: Hammer #1 (5,000#) and #2-4 (4,000#)

Operator - $10.75 per hour

Heater - $9.70 per hour
Trimmer - $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