FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 00-12547

IBEW LOCAL NO. 2356, Grievance No. 2781

Union,

and

THE OKONITE COMPANY,

Company.
______________________________________/

OPINION OF THE ARBITRATOR

February 20, 2001

After a Hearing Held January 10, 2001

At the Hampton Inn in Richmond, Kentucky

For the Union: For the Company:

Walter D. Hall Desmond Massey, Esq.
Chief Steward Grotta, Glassman & Hoffman, PA
IBEW Local 2356 75 Livingston Avenue
Cobb Hill, KY 40336 Roseland, NJ 07068-3701
 Background

In 1988, The Okonite Company (“Company”) engaged in coordinated

bargaining with unions at three of its plants, including the one in Richmond,

Kentucky, where employees are represented by Local No. 2356 of the

International Brotherhood of Electrical Workers, AFL-CIO (“Union”). In

their negotiations, the parties agreed to implement on a limited basis an

alternate 4x4 work schedule consisting of 4 twelve-hour workdays, followed

by 4 off days.

Employees were to be paid at their regular rate for the first 8 hours

and at time-and-one-half for the last 4, subject to certain premiums covering

Saturdays, Sundays, and holidays. The parties raised but did not resolve the

issue of how employees were to be paid for a 5th day, should the occasion

arise. The 4x4 or alternate work schedule since has been expanded and

currently is embodied in section G of Article 10 of the Richmond collective

bargaining agreement, which was entered into evidence as JX 1 (“CBA”).

In an internal memorandum dated 4/29/88 (CX 1), T.M. Scanlon,

Company spokesman, set forth the Company’s position regarding the

functioning of the alternate work schedule:

An employee who works additional days to fill in for an absentee will

be paid as follows:

a. During the week (Monday-Friday) pay will be eight (8) hours at

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 straight time and four (4) hours at time and one-half.

b. Saturdays will be paid at one and one-half times.

c. Sundays/Holidays will be paid at double time.

The memo was directed to the managers of the three plants involved,

including Don Nelson, then manager of the Richmond plant.

The Union alleges that, notwithstanding the policy articulated in the

Scanlon memo, the call-in provisions of CBA Article 14, § B.3 have been

used to compensate employees who work a 5th day on the alternate schedule,

at time-and-one-half for the entire 12 hours. Article 14, § B states:

1. Any Electrical Craftsman, Mechanical Craftsman or Craftsman

Helper called in to work after the termination of his regular shift
shall be advised of the specific job that he is expected to perform
and shall not be required to perform any other duties upon
satisfactory completion of his specific job. He shall receive no less
than four (4) hour’s pay. His rate of pay shall be double time.
Double time will not be paid, unless covered by Article 12, when
electrical or mechanical craftsmen are called in to replace an
employee who has called in absent or has failed to show up for
work. This will be treated as replacement call-in at time and one-
half. …

2. Employees will be paid at the above rate when called in to work

when the plant is not normally scheduled to work. Example,
vacation period, weekends not scheduled.

3. Any employee called in to work after the termination of his regular

shift shall receive no less than four (4) hours pay. His rate of pay
shall be at time and one-half (1 1/2) his regular straight time rate.

The Union concedes that, if an employee is asked during his shift to

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work a 5th day and agrees to do so, then he is entitled to be paid only in the

usual way on the alternate schedule, i.e., 8 hours at his regular rate and 4

hours at time-and-one-half. However, the Union insists that if the employee

is called in under any circumstances to work a 5th day, then he is entitled to

be compensated at time-and-one-half for all 12 hours under Article 14, §

B.3.

The Union’s position is stated as follows, on pages 2-3 of its brief:

While the Collective Bargaining Agreement does not define exactly

what the Union says, it does not define what the Company contends
either. If an Alternate Shift employee is canvassed prior to the end of
his shift to report to work on one of his off days, the Union agrees he
would receive straight time pay for the first eight hours, Monday
through Friday. However, the Union has a problem with an employee
being called by phone to report to work after termination of his
regular scheduled shift. The Union relied on past practice for a lot of
this arbitration case. (Emphasis in original.)

The Company claims that, in May of 2000, it became aware of

payroll abuses at its Richmond plant. The Company claims that a kind of

game developed through which first-line supervisors would schedule 5th-day

overtime by calling employees at home, and the employees then would

claim call-in pay. If an employee was approached during his regular shift to

work a 5th day of overtime, he would ask to be called so he could claim call-

in pay. The Company alleges that supervisors even would call employees

while the employees were in the plant, so the employees could claim that

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they had been “called in to work.” According to the Company, the situation

deteriorated to the point that no one would agree to work overtime except

under the CBA’s call-in provisions.

Upon learning of the alleged abuses, the Company put an immediate

halt to them. The Union filed a grievance, Grievance No. 2781 (JX 2),

alleging a past practice extending over a decade. The Company denied the

grievance, and the Union demanded arbitration. A hearing was held on

January 10, 2001, at a neutral site in Richmond, Kentucky. Now that the

parties have filed briefs, the matter is ripe for decision.

The Issue of Past Practice

The principles regarding application of the doctrine of past practice

are articulated in Hill & Sinicropi, Management Rights (BNA 1986):

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.

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 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 Marlin Volz likewise recognized that the contractual

relationship between the parties normally consists of more than 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. @ 20-21; footnotes omitted.

The arbitrator has encountered allegations of past practice in

numerous situations. In UAW Local 62 and Jackson Innova Corp, FMCS

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No. 89-06881 (Cornelius Arb, 1989), the company claimed that contract

language regarding composition of work crews was ambiguous. The union

responded with uncontroverted evidence that their composition had been the

same for almost 30 years. When the Company could point to no changed

conditions to which it was reacting, the arbitrator upheld the union’s claim

of a past practice. However, the arbitrator declined to apply past practice

principles to the union’s claim in Local 7-591, Oil, Chemical and Atomic

Workers International Union and Pennwalt Corp, FMCS No. 88-10581

(Cornelius Arb, 1988), because of new and changed conditions.

In Graphics Communications International Local Union 394-S and

Top Flight, Inc., FMCS No. 91-10780 (Cornelius Arb, 1991), the arbitrator

rejected the company’s claim of a past practice regarding bumping, because

of changes in contract language and a paucity of incidents. In United

Steelworkers of America, Local 1900 and Allor Manufacturing Inc., the

arbitrator declined to uphold the union’s claim of a past practice of allowing

employees to change shifts, because it appeared that only 12 employees had

been allowed to change, each under different circumstances. Finally, in

Dravo Lime Co v United Steelworkers of America, AFL-CIO, Local Union

No. 81, FMCS No. 95-01944 (Cornelius Arb, 1995), the arbitrator found no

past practice with regard to discipline for drug and alcohol abuse, on the

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basis of only 4 incidents, two of which involved the grievant himself.1

The Union insists that use of the call-in provisions to staff overtime

has become so ingrained as to constitute a past practice by which the parties

are bound. In Elkouri & Elkouri, How Arbitration Works (ABA/BNA 5th ed

1997), the authors quote Arbitrator Jules J. Justin’s criteria for proof of a

past practice:

“In the absence of a written agreement, ‘past practice,’ to be binding

on both Parties, must be (1) unequivocal; (2) clearly enunciated and
acted upon; (3) readily ascertainable over a reasonable period of time
as a fixed, and established practice accepted by both Parties.” Id. @
632; footnote omitted.

When measured against these criteria, the practice alleged by the Union does

not measure up.

Curiously, not a single witness—either Union worker or first-line

Company supervisor—was called, who had personal knowledge of the

alleged practice. The apparent reluctance of witnesses to admit to

participation in the practice says much about its validity. Such evidence as

was presented consisted of Company records from the week ending 8-4-96

(UX 3) and a summary of records from 12-18-97 through 4-23-99, prepared

by the Union (UX 1). However, without testimony as to the circumstances

under which individuals were working a 5th day, it is impossible for the

1
Copies of the arbitrator’s unpublished opinions are available upon request.

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arbitrator to conclude that they were acting according to some practice. The

only individual upon whom any testimony focused was T. Kelly, clock #

30598, during the week ending 8-4-96 (UX 3), and, even as to this lone

employee, the testimony was highly conflicting.

Perhaps cognizant of the weakness of the evidence introduced at the

arbitration hearing, the Union sought to augment the record during the

briefing process by submitting to the arbitrator time records for the week

ending 8-2-98, along with a note of explanation from the Union President.

There was no indication that the Company was copied on this post-hearing

submission. It would be improper for the arbitrator to consider material

tendered after the close of the evidence, unless done by stipulation with the

opposing party. For these reasons, the Union’s post-hearing submission is

not considered and is forwarded to the Company for review and return to the

appropriate Union official.

The party asserting a practice bears the burden of proving its

existence. Hill & Sinicropi, Management Rights @ 29-30. Not only was the

evidence of any practice inconclusive, but proof of its acceptance by higher

management was not convincing. See Elkouri & Elkouri @ 632-633, n 11

(distinguishing acquiescence by individual supervisors from mutual

agreement by contracting parties); Hill & Sinicropi, Management Rights @

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26-30 (“Mutuality”). Although no current or former manager of the

Richmond plant was called to explain any local deviation from Company

policy as articulated in the 1988 Scanlon memo (CX 1), such deviation as

may have existed seems to have originated in the Richmond accounting

department, which may have paid without investigation any time marked

“call-in”, under the call-in provisions of Article 14. As soon as higher

management learned of the deviation, management acted to correct it.

Yet another reason not to impose a past practice on the Company is

the existence of a strong integration or zipper clause in the CBA. See Hill &

Sinicropi, Evidence in Arbitration (BNA 2nd ed 1987) @ 340; Elkouri &

Elkouri @ 645-647. Article 2 provides:

A. … It is also the intent and purpose of the parties to set forth herein
their total agreement covering rates of pay, hours of work and
conditions of employment.

B. This Agreement shall constitute the entire Agreement between the

parties and no modification or amendment thereto shall be binding
upon the parties unless such modification or amendment is made and
executed in the same manner as in the Agreement. The waiver of any
breach or condition of this Agreement or former agreements by either
party shall not constitute a precedent in the future enforcement of any
terms or conditions herein.

C. This Agreement shall be subject to amendment at any time by

mutual consent of the parties hereto. Such amendments shall be
reduced to writing, stating the effective date of amendment and
executed by authorized representatives of the Company and Union.

In the face of contractual language this strong, it might be difficult to bind

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the Company to even a well defined past practice.

Call-in versus Overtime

That the parties intended a distinction between call-in and overtime is

clear from the fact that they are addressed in separate provisions of the CBA,

the former being covered in Article 14 and the latter in Article 15. Moreover,

it is clear that the parties understood that overtime would be required on the

4x4 schedule, because the following sentence is included both among the

provisions establishing the alternate work schedule (Article 10, § G.9) and

among the general provisions governing overtime (Article 15, § C.11):

Alternate work schedule overtime involving twelve (12) hour shifts,

will first be offered to employees on the alternating shift.

Although the CBA does not contain an exhaustive definition of call-

in, it does contain a number of examples which provide guidance as to its

intended purpose. In addition to the examples provided in Article 14, § B.1

(call-in provisions apply when craftsmen are called in to replace employee

who has called in absent or has failed to show up for work),2 Article 14, § C

yields these:

It will not be considered a “call-in” situation when an employee is

notified prior to the end of his shift to report early for subsequent
shifts and work into normal starting hours. It will be considered a
“call-in” situation when an employee is called by phone to report to
work prior to [h]is shift and to continue into his normal starting hour.
2
The examples in Article 14, § B.2 (“when the plant is not normally scheduled to work”) do not appear to
pertain to this arbitration over a 5th day on the 4x4 schedule.

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 Given the difference between call-in and overtime in the CBA, these

examples suggest that the key distinction is the unforeseen nature of the

staffing need. Moreover, although the medium of the telephone is mentioned

explicitly in Article 14, § C, that medium obviously is not sacrosanct, so that

an employee urgently summoned at home in person because his phone is out

surely is entitled to call-in pay, and an employee called at home a week in

advance to work overtime equally surely is not entitled to “call-in” pay,

notwithstanding the fact that he is called at home.

When the relevant provisions of the CBA are combined with the

Union’s admission (that an employee, who, during his shift, agrees to work

overtime, is entitled to pay at only the usual rate for the alternate schedule),

the conclusion is ineluctable that whatever practice may have existed was

the result of inadvertence, not agreement, as required for a practice to

become part of the labor contract. Overtime is intended to cover staffing

needs which are known in advance; call-in is for exigencies.

Award

For all the foregoing reasons, the grievance is DENIED.

Dated February 20, 2001

_______________________________
E. Frank Cornelius, Arbitrator

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