Text of Award
HIGH, Arbitrator; STATEMENT OF THE CASE. The Company is a manufacturer of hardwood early American furniture at its Tell City , Indiana Plant. It is approximately 100 employees below its usual complement of 600-630. In the instant Grievance, filed by a shop steward, the Union claims that a past practice has developed, in cases of short term layoffs where some employees are required in a given department of offering the available work to the most senior employee in the classification, with that employee having the right to refuse. In other word, the Company, the Union contends, should go down the seniority roster allowing refusals and come up from the bottom with the mandatory assignment. On the occasions in question, the Company assigned the work mandatorily, to the senior employees in the classification. The parties have been unable to resolve the grievance and it is before the Arbitrator for disposition.
Issue
The issue for disposition is whether there is a past practice which can cause Section 12 of the Agreement to be read as permitting senior employees to decline work assignment where here is to be a layoff of less than all of a classification for five days or less.
Facts
The facts of this case are largely undisputed. The Grievance arose in the Shipping and Warehouse Department, Plant 3. It appears that the plant which produces tables for dining room sets frequently is behind the plant producing the chairs. Therefore , on some days less than a full complement is required in that department.
It appears that for the week ending Christmas Day 1981 and the week ending New Year’s Day 1982, the Chair Plant was shut down.
The Company had need of two employees in the Shipping and Warehouse Department for the first four days of those weeks and sometime before December 18, 1981, scheduled the two most senior employees in the department to work.
The most department raised the question with his steward-elect of whether his refusal to work would deprive him of unemployment compensation benefits.
Upon receiving an affirmative reply, he decided to work and the two senior employees worked the days in question.
On December 17, 1981, a negotiation meeting, looking toward the present Agreement, was held and the question was raised by the union. It appears that the Company stood by its position that it would assign（rather than offer the choice）the work to the senior employees.
It appears that the matter did not come up again in the negotiations and the parties stipulated that the relevant contractual provision, Section 12, remained unchanged in the new Agreement, effective January 25, 1982.
For weeks January 15, January 22, and January 29, 1982, the Company scheduled the Chair Factory for four days, closing each Friday.
It decided, however, to schedule two employees for each of the Fridays from the 85 classification of the Shipping Warehouse Department, with the result that the two senior employees in the 85 classification were assigned, without choice, to work the three Fridays.
It is undisputed that prior to December, 1981, there were a number of occasions when less than a full crew was required in the 85 classification for one day and the most senior employees were given the choice of accepting or declining the assignment（apparently, the most senior 85 frequently declined extra work）. The steward who filed the grievance testified that this practice was followed when he worked as a forklift driver in Department 301.
(Position of the Parties)
The Company’s evidence is that prior to July, 1981, at least four methods of assigning the work existed. There were: (1) allowing the senior employees the choice, as in the Shipping and Warehouse Department; (2) assignment to the crew of the machine which had the work and laying off entire crews without regard to seniority; (3) involuntary scheduling of the most senior employees; and (4) in some cases, simply asking for volunteers.
According to the Company, its present policy derived from the settlement of a grievance by an employee named [O.]. The evidence shows that [O.] was member of one of only two crews which operate a certain type of machine. The grievance arose because there was insufficient work for both machines one day and because the other machine was already working on the work in question that crew was assigned the work, notwithstanding that [O.] had superior seniority to some, or all, of the members of the other crew. [O.] filed a grievance, which was resolved at the third step with the following Answer:
There solution of this grievance is that the Company shall follow Section 12 of the current contract where there are work crews with the same classifications. Example: the double end tenoner and offbearer at Plant #2, recognizing that the offbearer classification goes with the machine and this applies to full days of work only. Partial days are excluded. This resolution shall apply throughout the Company. The grievant shall receive 4 hours of day work pay in the settlement of this grievance. The one day extension to the Company is appreciated.
The Company emphasizes the language, ‘shall apply throughout the plant.’ Section 12 of the Agreement provides, in pertinent part:12. Seniority shall be on a departmental basis by job classification and shall govern all permanent layoffs and rehirings. When a layoff occurs at a time when the Company anticipates a temporary layoff of less than five (5) days, it shall be made by seniority on a job classification basis, in that department. Here, the Company emphasizes the ‘shall be made by seniority on a job classification basis…’ language, arguing that this compels the assignment to senior employees (not permitting a choice to the senior employees).
The Union argues that its position is consistent with both the mandate of Section 12 and the settlement of the [O.] grievance. Its position is that while Section 12 requires that the Company offer work during a partial layoff of five days or less to the senior employees in the classification, the past practice upon which it relies establishes a right on the part of the senior employees to waive that right.
The Company’s position is that the past practice was not uniform, but, in any case, was terminated by the [O.] settlement. It points out that it defended the [O.] grievance on precisely the same grounds as the Union raises in this case; namely, that the past practice in [O.’s] department called for assignment of work during temporary layoff depending upon which crew was doing the work, not the seniority of individual employees. Its evidence is the language of Section 12, and that it, accordingly, decided it should settle that grievance, but that it should insist upon language in the settlement agreement which would ensure uniformity throughout the Company’s operations. As can be seen from the language of the settlement agreement, the agreement was made applicable ‘throughout the Company.’
Question
1. Evaluate the issue in this case.
2. Explain the concept of past practice and its importance for labor-management relations.
3. Discuss the importance of past practice for this case.
4. How should the arbitrator rule in this case? Why?
