FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 88-10581

Grievance No. 984B
LOCAL 7-591, OIL, CHEMICAL AND ATOMIC
WORKERS INTERNATIONAL UNION,
Union,

and

PENNWALT CORPORATION
Wyandotte, West Plant,
Company.
_________________________________________/

OPINION OF THE ARBITRATOR

May 16, 1988

After a Hearing Held May 5, 1988

In Riverview, Michigan

For the Union: For the Company:

Arthur M. White Fred W. Veil, Esq.

International Representative Legal Department
OCAW, AFL-CIO Pennwalt Corporation
849 Augusta Drive Three Parkway
Rochester, Michigan 48309 Philadelphia, Pennsylvania 19102
 Stipulation of Facts

At the beginning of the arbitration hearing, the parties agreed upon the

following facts:

1. Pennwalt Corporation (the "Company") operates a plant in Riverview,

Michigan, where it is engaged in the manufacture of organic chemicals.

2. The Company's production, maintenance and laboratory employees are

represented by Local 7-591, Oil, Chemical and Atomic Workers
International Union (the "Union").

3. The Company and Union have been parties to successive collective

bargaining agreements, including an agreement dated March 1, 1986 (the
"Agreement" or "CBA").

4. The Company manufactures two organic chemicals in a production unit

known-as Process 46. In August 1987, the Company completed the
installation of an additional reactor in Process 46.

5. Hydrochloric acid (HCL) is a by-product of the Process 46 operation.

6. Before the expansion, Process 46 operations were performed by one

operator ("Process 46 Operator") for each shift of operation. The
expansion significantly increased the work load for the process.

7. In July 1987, in anticipation of the Process 46 expansion, the Company

established a new job classification ("Process 46 Operator B").

8. The duties of the Materials Handler include the loading and unloading of
products and materials throughout the plant. Prior to the Company's
creation of the Operator B classification, the Materials Handler loaded
HCL for shipment to the Company's sole HCL customer (Pressure Vessel
Services or "PVS"). Materials Handlers work a day shift schedule only,
and the loading of HCL on "off shifts" was performed by Materials
Handlers on an overtime basis.
9. The Operator B classification established by the Company was assigned
the duties of loading HCL on the "off shifts".

10. In July 1987, the Company notified the Union of its creation of the
Operator B classification, and thereafter discussed it with Union
representatives in accordance with Section 136 of the Agreement.

11. The Operator B classification is a shift job. The Company hired four new
employees and assigned one to each operating shift in Process 46.

12. On or about December 15, 1987, the Operator B loaded an HCL tank
truck for shipment to PVS. The Union thereafter grieved the assignment.
The grievance was processed through the grievance procedure, denied by
the Company, and is now before the arbitrator.

Issues Presented

Although able to agree on some basic facts, the parties were unable to

agree upon the issues presented. The Union stated the issue as follows:

Did the Company violate Section 148 of the Agreement and all other
sections of the Agreement that may apply when it transferred the work of
loading HCL tank trailers on the "off shifts" from the Materials Handler
classification to the newly established Process 46 Operator B
classification?

The Company stated it as follows:

Did the Company violate Section 148 of the Agreement when it

transferred the work of loading HCL tank cars and trailers on the "off
shifts" from the Materials Handler classification to the newly established
Process 46 Operator B classification?

Having stated "the" issue thusly, the parties proceeded to expand the

scope of the hearing to include the related issue of the assignment of "the

hooking and unhooking of Chlorine and Mercaptan Tank Cars" (UX 1), without
objection. Since neither side objected and both introduced evidence on the issue,

I decide it also.

Relevant Contract Provisions

Section 8: Except as limited by this collective bargaining Agreement, the

Company retains all of the normal and customary rights of management in the
operation of its business and the direction and control of the working force. ***

Section 30: The arbitrator shall have no power to add to, detract from or modify
any of the terms of the Agreement or any supplements thereto, nor shall he
entertain or make any award on any grievance relative to changes in hourly rates
or hourly rates for newly established classifications.

Section 135: *** Nothing herein shall prevent the Company from changing
production methods or putting in new methods. After such new or changed
methods have been established, the provisions of Sections 136, 137 and 138
shall become applicable.

Section 136: When a new classification is established, the Company will

submit to the Union a temporary job description and will establish a temporary
rate therefor. Forty-five (45) calendar days and no later than sixty (60) calendar
days after the new classification has been in effect, the Union may request
changes in the temporary job description (if the job description does not
conform to the duties of the job established by the Company) and the temporary
rate. Such request for changes shall be submitted directly to the Management
Committee for discussion within two (2) working days of submission. The
decision of the Management Committee, which shall be given within five (5)
working days after the discussion, shall be final and such decisions shall not be
subject to arbitration. ***

Section 137: Within five (5) calendar days after making any substantial change
in an existing classification as the result of new or changed production methods,
the Company will submit to the Union a temporary job description and will
establish a temporary rate therefor. Thirty (30) calendar days after such change
in an exiting classification has been in effect, but not later than sixty (60)
calendar days after such a change, the Union may request changes in the
temporary job description (if the job description does not conform to the duties
of the job established by the Company) and the temporary rate. Such request for
changes shall be submitted directly to the Management Committee for
discussion within two (2) working says of submission. The decision of the
Management Committee, which shall be given within five (5) working days
after the discussion, shall be final and such decision shall not be subject to
arbitration.

Section 148: It is the intent of the parties that this Agreement will constitute the
complete Agreement between them and that no additions, waivers, deletions,
modifications or amendments shall be made during the term of this Agreement
except by written agreement of the parties hereto. Is" is the intent of the
Company, however, to continue those practices which have been established in
the past and which are not provided for in the Agreement, but the Company
reserves the right to discontinue or change such practices by notification to the
Union in advance together with the reasons therefor, provided however, that
should the Company wish to discontinue or change those practices which have
been established in the past and which are not provided for in this Agreement
which affect all of the employees in the bargaining unit in a like manner, the
Company must first obtain the approval of the Union to such discontinuance or
change.

Discussion

By letter dated July 6, 1987 (JX 6), the Company transmitted to the

Union the proposed job description for Operator B, Process 46 (JX 3), which

stated in pertinent part:

In addition to the duties common to all operating personnel, the Operator

B, Process 46, may perform the following:

A. In Process 46:
1. Operates all process equipment as necessary.
2. Performs necessary record keeping.
3. Performs normal housekeeping duties.
4. Performs duties incidental to the job.

B. In Area as required:
1. Loads waste trailers.
2. Loads by-products HCL off shift.
 3. Transfers crude product from drums to crude product storage
tanks.
4. Provides maintenance assistance.
5. Connects and disconnects tank cars.
6. Performs other miscellaneous work in the area as assigned by
the Area Supervisor.

At the time, the Union acted in all respects as if Sections 135 and 136 of the

CBA were applicable and even endorsed the tasks listed under paragraph A,

because they were duties traditionally assigned to Operator, Process 46 (JX 4).

However, the Union objected to the tasks listed under paragraph B, as belonging

to other job classifications, most notably to Materials Handlers.

Let us consider the tasks at issue in this arbitration, (B.2) and (B.5),

separately. The Company concedes that loading by-product HCL historically

has been the province of Materials Handlers; the issue, therefore, is the

Company's authority unilaterally to transfer that task to Operator B, Process 46.

As quoted above, the CBA contains a strong Managements Rights clause;

whatever is not forbidden is permitted ("Except as limited by this collective

bargaining Agreement"). Thus, the first issue reduces to whether the transfer of

HCL loading is forbidden by the CBA.

The parties point to no provision of the CBA which expressly prohibits

the transfer of duties from the Materials Handlers, and I am unable to find any.

To the contrary, Sections 135, 136 and 137 all but expressly permit it. Indeed,

Section 137 expressly permits the making of "substantial" changes in an existing

classification, "as the result of new or changed production methods." Even if the

transfer of HCL loading were considered to be a "substantial" change for

Materials Handlers, it would not be forbidden. Moreover, apparently neither

party considers it to be a "substantial" change, because neither ever specifically

mentioned Section 137; rather, both seem to assume that HCL loading was just

one small task among myriad others performed by Materials Handlers. If even

"substantial" changes are permitted, a fortiori so are nominal ones. Thus, the

issue of the transfer of HCL loading is resolvable from an examination of the

CBA itself.1

The issue regarding the hooking and unhooking of chlorine and

mercaptan tank cars is somewhat more complicated, because it initially was

bargained and embodied in a written agreement. During the 1986 contract

negotiations, the Company sought and received from the Union permission to

transfer the task of hooking and unhooking chlorine and mercaptan tank cars

from Pipefitters to Materials Handlers, in anticipation of introducing flexible

hosing to replace rigid pipe. The Company insists that it agreed to bargain over

the initial transfer from Pipefitters to Materials Handlers because (1) it was not

then operating under express authority of Sections 135 and 136 (i.e., it was not

1
The transfer of work from one job classification to another has been upheld on the basis of a broad management
rights clause. See Elkouri & Elkouri, How Arbitration Works (BNA 1973), at 455-456. Here, in addition to
Section 8, we have Sections 135, 136 and 137. These latter sections might, of course, be read to limit Section 8, in
the absence of "new or changed production methods."
implementing "new or changed methods") and (2) it was attempting to transfer

work across trade lines. Agreement was embodied in a Memorandum of

Agreement dated March 14, 1986 (UX 1). However, when the Memorandum

subsequently was integrated into the CBA (JX 1), these (and other) work

transfer provisions were omitted from the final text. Apparently the mercaptan

task was transferred as anticipated, but the chlorine transfer has not been

implemented due to a lack of suitable hose.

Since the mercaptan transfer from Pipefitters to Materials Handlers was

in fact implemented, the subsequent transfer of that task from Materials

Handlers to Process 46 Operator Bs is covered by what already has been said.

The fact that the initial transfer was bargained and embodied in a written

agreement does not change the result. These parties do not customarily bargain

over the details of job descriptions (see Section 133), and the omission of any

mention of the initial transfer in the CBA suggests that it was not etched in

stone.2 Moreover, even if the initial transfer had been embodied in the CBA, the

result would be the same, because Section 135 expressly provides:

Nothing herein shall prevent the Company from changing production

methods or putting in new methods.3

2
See generally Elkouri & Elkouri, How Arbitration Works (BNA 1973), at 454-458.
3
The precise of scope "herein", as used in Section 135, is unclear. Thoughout the CBA, reference to the entire
Agreement is made specific (e.g., Section 8), as is reference to various provisions (e.g., Section 64). If a section
references itself (e.g., Section 76), again, the reference is specific ("this Section"). "Herein" probably means the
entire portion of the Agreement subsumed under the heading, "Job Groups and Wages", i.e., Sections 133-140
together with related Appendix "A". If the parties' agreement concerning the hooking and unhooking of chlorine
Thus, the fact that the hooking and unhooking of mercaptan tank cars was

transferred from Pipefitters to Materials Handlers via written agreement, does

not preclude subsequent transfer to Process 46 Operator Bs, pursuant to the

express authority of Sections 135-137.

The final task transfer under consideration is the proposed transfer of the

hooking and unhooking of chlorine tank cars from Pipefitters to Process 46

Operator Bs, as soon as suitable hosing is obtained and appropriate training

completed. The transfer of work from a skilled trade (such as Pipefitters) to a

semi-skilled position (such as Materials Handlers), and vice-versa, may be

closely scrutinized. Elkouri & Elkouri, How Arbitration Works (BNA 1973), at

456; see also id., at 459-462. Here, however, Sections 135-137 make no

distinctions between levels of skill and place no limitations upon the job

classifications which may be affected. Thus, even without the 1986

Memorandum of Agreement expressly authorizing the transfer from Pipefitters

to Materials Handlers, nothing in the CBA precludes the transfer from

Pipefitters to Process 46 Operator Bs at this time.

Good Faith

The Company concedes that it can be held to a duty of good faith; indeed,

the CBA expressly imposes a duty of good faith upon both parties (Purpose of

and mercaptan tank cars had been embodied in the CBA, it most appropriately would have been under "Job
Groups and Wages", and so subsumed under "herein".
Agreement, CBA p 3). There is in this matter ample evidence of good faith on

the part of the Company in exercising its rights under applicable sections of the

CBA.

Management at Wyandotte, West Plant is not autonomous and does not

have authority to create a new job classification. To obtain the requisite

corporate approval, local management had to justify the creation of a new

classification. In the planning stage, it did not appear that the duties enumerated

in paragraph A of JX 3, duties directly related to the operation of Process 46,

would occupy an Operator B for a full shift. In order to provide Operator Bs

with a full shift of work, local management proposed that Operator Bs also

perform the tasks enumerated in paragraph B, two of which are at issue here.

Thus, the Company did not act arbitrarily in deciding to assign additional duties

to Operator Bs.

The choice of which additional duties were to be assigned was, of course,

up to management (absent a showing of improper motive, and there is not even

an allegation of such). There was, however, substantial independent justification

for assigning the task of loading by-product HCL to the Operator Bs on off

shifts.

Since Materials Handlers worked a day shift only (7:30 a.m. - 4:00 p.m.),

HCL loading on their off shifts had to be done on an overtime or call-in basis.
Call-in had proved to be especially troublesome because of the time lag between

the call to an off duty Materials Handler and the actual commencement of

loading. If a waiting truck was detained for more than two hours, the Company

was forced to pay a $50/hr. detention charge. These problems were eliminated

by assigning the work to Operator Bs on the Materials Handlers' off shifts.

The hydrochloric acid produced in Process 46 is of a low grade, and the

market for it is quite limited. Indeed, in the Company's entire history, it has

found only one customer for its by-product HCL, Pressure Vessel Services.

When the Company sought to increase the capacity of Process 46 (by some 60%

or more), PVS agreed to take the additional by-product HCL, provided that the

Company expand the loading hours for PVS1 trucks. In response to PVS'

request, the Company extended loading hours from 7:30 a.m. - 4:00 p.m., the

usual shift worked by Materials Handlers, to 5:00 a.m. - 7:00 p.m., weekdays

(UX 2). To accommodate these extended hours, the Company either had to pay

Materials Handlers on an overtime or call-in basis, or reassign the work on off

shifts. It plainly was cheaper to reassign the work. Thus, there was a strong

economic argument for reassigning the task of HCL loading on off shifts.

In conclusion, I find that the Company has acted in good faith. The

upshot of the Process 46 expansion has been the creation of four new Union

jobs in the Operator B classification and even the hiring of an additional

Materials Handler. Indeed, the increase in work has been so great that the

Materials Handlers now have even more opportunities to work overtime than

they had before expansion (CX 1 & 2). All have benefited as a result.

Past Practice

The Union relies primarily on the past practices provision of the CBA,

Section 148. That section is inapplicable to the instant matter because it requires

Union approval only of changes "which affect all of the employees in the

bargaining unit in a like manner." Here, very few members of the bargaining

unit are affected at all, much less in a like manner. In general, past practice

principles pertain to matters of long standing which have not been changed

during contract negotiations. Elkouri & Elkouri, How Arbitration Works (BNA

1973), at 389-390. Here, we are confronted with new and changed conditions

and matters (such as chlorine and mercaptan) which recently have been the

subject of collective bargaining. Thus, past practice principles are inappropriate.

Arbitrability

The Company challenges the arbitrability of this dispute, based upon the

language of Section 136 ("such decisions shall not be subject to arbitration").

The Company claims that the Union in effect is challenging the job description

for the newly created classification of Process 46 Operator B, which the

Company claims the Union has no right to do. The presumption in favor of
arbitrability is strong, Hill & Sinicropi, Evidence in Arbitration (BNA 1987), at

27-28, and the exception urged by the Company admits of a very narrow

interpretation. The literal language of Section 136 excepts from arbitration only

decisions of the Management Committee regarding (a) alleged discrepancies

between job descriptions and actual duties, and (b) temporary rates. A narrow

reading is supported by Section 30, which (in pertinent part) precludes the

arbitrator from entertaining or making an award only with respect to "hourly

rates for newly established classifications."

The Union contends that the Company raised arbitrability for the first

time at the arbitration hearing and hence is untimely with its objection. Because

the issue of arbitrability is not close, timeliness is unimportant. See generally

Hill & Sinicropi, Evidence in Arbitration (BNA 1987), at 314-317.

Award

For all the foregoing reasons, the grievance is denied.

DATED: May 16, 1988 _____________________

E. Frank Cornelius