FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 90-00034

Grievance No. 89-01
UNITED STEELWORKERS OF AMERICA,
LOCAL 1900,
Union,

and

ALLOR MANUFACTURING INC.,

Company.
_______________________________________/

OPINION OF THE ARBITRATOR

April 9, 1990

After a Hearing Held February 2, 1990

At the Holiday Inn in Farmington Hills, Michigan

For the Union: For the Company:

Clint Parrott, Staff Representative Carl-G. Karlstrom, Esq.

United Steelworkers of America Booth, Patterson, Lee,
AFL-CIO-CLC 7000 Karlstrom & Steckling
Roosevelt Road, Suite 200 1090 West Huron Street
 Allen Park, Michigan 48101 Pontiac, Michigan 48053
On June 19, 1989, Michael G. Chabot, Grievant, a vertical mill operator on the

night shift at Allor Manufacturing Inc. ("Company"), reported for work on the day

shift, with the tacit approval of Art Loveland, the general foreman. The shift change

was made at the recommendation of Grievant's physician, who was treating him for

substance abuse. However, the very next day, Grievant was told to report back to the

night shift, as a result of a directive from Jim Newbold, the Company's secretary-

treasurer.

Grievant then filed a grievance through his union, Local 1900 of the United

Steelworkers of America ("Union"). The parties were unable to resolve their

differences administratively and so proceeded to arbitration, pursuant to the

Agreement between the Company and the Union, effective January 16, 1989 -

January 15, 1991 ("CBA"). A hearing was held February 2, 1990, at the Holiday Inn

in Farmington Hills, Michigan.

At the hearing, the Company proferred CX 1, a list of employees involved in

shift changes. The Company produced a large box of personnel records, which it

claimed supported the information in CX 1. To expedite matters, the parties agreed to

meet after the hearing and go over the personnel records to verify the information in

CX 1, which they did on February 15, 1990. However, in their briefs postmarked by

February 23, 1990, the parties took rather different views of CX 1, as revised.

Because of the importance of this exhibit, the arbitrator, by letter dated February 27,
1990, requested the parties to prepare a single exhibit upon which they could agree.

This they did, and the arbitrator has received CX 1 as revised 4/3/90 and accepted in

writing by both parties. The matter is, therefore, ready for decision.

The Union contends that there is a past practice under which employees are

permitted to change shifts in accordance with their personal needs, the Union claims

that employees have been allowed to change shifts for such reasons as substance

abuse problems, transportation difficulties, family concerns, spousal illness, and

softball schedules.

The Company concedes the existence of a practice but claims it is limited to

unclassified, entry level jobs in assembly and secondary operations. Classified jobs

are defined in Article XXII of the CBA, at 22-23. The Company contends that

transfer to or within classified positions is governed by Article VII, §8(d), which

provides:

An employee will be entitled to change shifts within the same classification in

the event an employee is a successful bidder for a job available but only in the
event the change does not result in a decrease in pay or downgrade in job
classification.

The Company asserts that this provision was inserted into the CBA to prevent

defections from the night shift, on which it has staffing problems.

Although there is no single test for the existence or parameters of a practice,

the authorities are agreed that the evidence establishing or defining a practice must be
clear, unequivocal, and mutually accepted by the parties. Elkouri & Elkouri, How

Arbitration Works (3rd Ed), at 22-24. In the matter before me, the evidence does not

meet these criteria.

At the hearing, the Union presented UX 5, a list of employees who the Union

claimed were permitted to change shifts. In its brief at 2, the Union backed away

from UX 5 somewhat, so that the arbitrator is left with CX 1 as the only mutually

agreeable evidence as to the parties' practice. Unfortunately, CX 1, even as jointly

revised, is quite incomplete, because job classifications are not specified for all of the

employees named. Inasmuch as the Union accepted CX 1 after it had received a copy

of the Company's brief in which the Company clearly articulated its version of the

practice, a reasonable assumption is that all employees named in CX 1 worked in

unclassified positions, except as otherwise indicated on the exhibit or at the hearing.

Only twelve (12) employees are claimed to have changed shifts pursuant to

practice -- Robert Flournoy, Rick Flournoy, R. Beddingfield, A. Hawken, Bliven Sr.,

Bliven Jr., M. Quinn, J. Sawle, R. McPherson, D. Beddingfield, K. Cleary, and M.

Cleary. Of these twelve, there is evidence that at most three (3), Robert Flournoy, R.

Beddingfield and M. Quinn, worked in classified positions.

The parties seem agreed that Robert Flournoy changed shifts outside of normal

channels. He was a boring mill operator on nights, who wanted to spend more time

with his family. To do so, Robert Flournoy took a lesser paying job as a drill press
operator on the day shift, August 1, 1988. Thus, his transfer definitely was contrary to

the terms of the CBA, Article VII, §8(d), and so supports the Union's position.

The parties further agree that on June 5, 1989, M. Quinn, the night welding

leader, became the day welding leader, when Roland Morency, the prior day leader,

transferred to an office job. M. Quinn's move, on its face, appears consistent with the

CBA and hence supports the Company's position.

On January 16, 1989, R. Beddingfield, a secondary drill press operator on the

night shift, transferred to days as a Hi-Lo operator in the secondary department. Since

he went from unclassified to classified, his shift change was consistent with Article

VII, §8(d) and so supports the Company's position.

Of the remaining nine (9) shift changes, all nine are consistent with the

Company's position that shift changes are permitted within unclassified positions, so

long as there is a new hire or probationary employee to replace the transferee. Thus,

D. Beddingfield, who had a substance abuse problem, was permitted to transfer to

days on September 17, 1984, because D. Horton and R. McPherson had been hired

on September 6, 1984. The fact that the transfer occurred shortly after D.

Beddingfield requested a transfer, was coincidental.

Similarly, Bliven Sr., who had transportation problems, was permitted to

transfer from nights to days on February 3, 1988, because Alan Hawkins had been

hired on December 1, 1987, and was completing his probationary period. Bliven Jr.
transferred from nights to days on September 8, 1987, to be with his family, but only

after John Boyden had been hired on August 10, 1987. On February 29, 1988, Rick

Flournoy switched from nights to days, to be with his family, but only because Craig

Thomas, who had been hired December 3, 1987, was coming off probation.

In general, the evidence of a practice along the lines that the Union asserts was

unclear, conflicting, and confusing. In the absence of evidence that is clear,

unequivocal and mutually accepted, any grievance over past practice must be denied.

There is a practice, but it heretofore (with minor exception) has been limited to

unclassified positions. For all the foregoing reasons, the grievance is DENIED.

DATED: April 9, 1990 ________________________

E. Frank Cornelius, Arbitrator