Académique Documents
Professionnel Documents
Culture Documents
and
August 7, 1991
October 19, 1990, and on Monday, October 22, 1990, due to a business
qualified to work, expressed her desire to do so and asked to bump one of the
Grievance
A grievance was filed on October 24, 1990 (JX 1), alleging a violation of
provides in ¶5.b:
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
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The Company claims that the parties have a past practice of treating
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
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
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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.:
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.
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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
Elkouri & Elkouri, How Arbitration Works (3rd Ed), at 22-24. In the matter
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
marked a change in the way the parties wanted to handle certain layoffs. The
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
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,
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
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
Company to schedule layoffs at the convenience of its workers. The fact that
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
Award
awarded two days' back pay, as requested. Costs of the arbitration are to be
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