FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 91-10780

Grievant Jessie Phillips
GRAPHICS COMMUNICATIONS
INTERNATIONAL LOCAL UNION 394-S,
Union,

and

TOP FLIGHT, INC.,

Company.
______________________________________/

OPINION OF THE ARBITRATOR

August 7, 1991

After a Hearing Held June 17, 1991

At the YMCA on Sixth Street in Chattanooga, Tennessee

For the Union: For the Company:

Sandra K. McCrea, Esq. Frank P. Pinchak, Esq.

Summers, McCrea & Wyatt, P.C. Hutcheson, Pinchak, et al.
500 Lindsay Street Suite 600, One Central Plaza
Chattanooga, Tennessee 37402-1490 Chattanooga, Tennessee 37402
 Background

Grievant, Jessie Phillips, was employed by Top Flight, Inc. ("Company"),

in its Envelope Department. She was represented by Graphics Communications

International Union Local 394-S ("Union"). On Wednesday, October 17, 1990,

Grievant's supervisor announced that Grievant would be laid off on Friday,

October 19, 1990, and on Monday, October 22, 1990, due to a business

slowdown. However, some employees in the Envelope Department, with less

seniority than Grievant, were to be allowed to work. Grievant, who was

qualified to work, expressed her desire to do so and asked to bump one of the

employees with less seniority. Grievant's request was denied.

Grievance
A grievance was filed on October 24, 1990 (JX 1), alleging a violation of

Section 15 of the Collective Bargaining Agreement (JX 2) ["CBA"], which

provides in ¶5.b:

Bumping - No bumping from job to job will be permitted on temporary

lay-offs. Employees not scheduled as a result of a shutdown in a division
for one day or less shall be considered as being temporarily laid off. An
employee who has not completed his sixty (60) day probationary period
may be bumped by an employee who has completed his probationary
period consistent with fitness and ability.

See also CBA §15, ¶l. The parties were unsuccessful in resolving their dispute

through the conference levels of the grievance procedure and hence resorted to

arbitration under Section 19, ¶5 of the CBA.

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 The Company claims that the parties have a past practice of treating

Friday-Monday layoffs as two one-day layoffs. Specifically:

The Company contends that the layoff on Friday, October 19, was a
temporary layoff and that the layoff on Monday, October 22 was a
separate and distinct temporary layoff. This is so because these two
layoffs occurred in separate weeks. Accordingly, the Grievant was not
entitled to exercise seniority rights and "bump". Company Brief at 2.

The Union denies applicability of the doctrine of past practice and points to the

plain language of the Collective Bargaining Agreement. Specifically:

The Union maintains that the contract clearly states that temporary
layoffs are layoffs of one day or less. Therefore, a layoff on two
consecutive working days is not a temporary layoff. To the extent that the
Company offers past practice as evidence of its interpretation, that
practice pre-dates the current contract and the evidence indicates that the
"practice" merely reflected the then existing contract language which
provided that a temporary layoff was a layoff of less than one day during
a work week or pay period. Accordingly, the "practice" which merely
reflected compliance with the express contract has no application where
the contract language has been amended to alter the practice. Union
Brief at 6.

Law

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:

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 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.

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 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.

Discussion
I am unable to find a practice between these parties, primarily because

the relevant contract provisions have changed over the years. Although the

parties did not offer copies of past contracts, there was ample testimony (from

the Company's own witnesses) that one or more prior agreements provided in

effect that a temporary layoff was a layoff of one or less day's duration in a

"work week" or "pay period". With such language in a labor agreement, a

Friday-Monday layoff could be interpreted as being two one-day layoffs in

separate work weeks or pay periods. See CBA §5, ¶l.

The Collective Bargaining Agreement under consideration has no such

language, because it was deleted at some (unspecified) point in the parties'

negotiations. The logical implication from this change of language is that it

marked a change in the way the parties wanted to handle certain layoffs. The

Company presented no evidence or argument that would persuade me to deviate

from the plain meaning of the contract language, especially in view of the

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evidence that key provisions have been changed in a manner counter to the

Company's position.

In UAW Local 62 and Jackson Innova Corp, FMCS No. 89-06881 [105

LRP 55078 (Cornelius Arb 1989)], the Company claimed that contract

language regarding composition of work crews was ambiguous. The union

responded with uncontroverted evidence that the composition of work crews

had been the same for almost 30 years. To me, that was a "past practice". In the

matter before me, there is not such clarity of evidence. To the contrary,

Grievant, herself an employee of 24 years, testified against any past practice.

Moreover, the Company could establish but this single occurrence of a Friday-

Monday layoff since 1984, in contrast to the daily routine of designating work

crews in Jackson Innova.

In United Steelworkers of America, Local 1900 and Allor Mfg Inc,

FMCS No 90-00034 [105 LPR 55080 (Cornelius Arb 1990)], I rejected the

union's claim of a past practice regarding bumping from day to night shift. The

evidence presented established no more than informal attempts by management

to accommodate workers' lifestyles. Similarly, we see here an attempt by the

Company to schedule layoffs at the convenience of its workers. The fact that

few complain is testimony to the popularity of the policy. However, popularity

is not a legally cognizable defense to the few, like Grievant, who do complain

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and whose complaints are soundly grounded upon the language of the

Collective Bargaining Agreement.

Award

For all the foregoing reasons, the grievance is SUSTAINED. Grievant is

awarded two days' back pay, as requested. Costs of the arbitration are to be

borne equally by the parties, per CBA §19, ¶5.

DATED: August 7, 1991 ___________________________

E. Frank Cornelius, Arbitrator

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