BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
FLEMING COMPANIES, INC., LACROSSE
TEAMSTERS LOCAL UNION 695
Ms. Carol A. Hawkins, Director, Labor Relations and
Employment Law, Fleming Companies, 1945
Lakepointe Drive, Lewisville, Texas, 75057, appearing on behalf of the Employer.
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Scott D. Soldon, 1555
North RiverCenter Drive, Milwaukee, Wisconsin, 53212, appearing on behalf of the Union.
The Union and Fleming Companies, hereinafter referred to as the Employer, are
parties to a
collective bargaining agreement which provides for final and binding arbitration of certain
which agreement was in full force and effect at all times mentioned herein. The parties
Wisconsin Employment Relations Commission to assign an arbitrator to hear and resolve the
grievance regarding the Employer's mandatory shift overtime practice. The undersigned was
appointed by the Commission as the Arbitrator and held a hearing into the matter in
Wisconsin, on January 11, 2002, at which time the parties were given the opportunity to
evidence and arguments. The hearing was transcribed. The parties filed post hearing briefs
21, 2002, marking the close of the record.
The parties were unable to stipulate to the issue presented and left it to the Arbitrator
the issue in the award.
The Union would state the issue as follows:
Did the Employer violate the collective bargaining agreement
when it extended the maximum
mandatory shift overtime from two hours to four hours? If so, what is the appropriate
The Employer did not provide the Arbitrator with its statement of the issue.
The Arbitrator adopts the Union's statement of the issue.
ARTICLE 2 CONDUCT OF THE
2.1 Company Authority.
The conduct of the business, the management and supervision
of all procedures and operation is vested exclusively in the Company. The selection and
all working forces is vested exclusively in the Company except as modified by this
Agreement . . .
ARTICLE 3 HOURS
. . .
Overtime. . . .The Company shall continue to assign overtime
consistent with past
practice. (Emphasis in original.)
The parties do not dispute the background facts and circumstances leading to the
dispute. They do, however, dispute the proposition that those facts create a binding past
upon the parties. The Fleming Companies, Inc., LaCrosse Division, provides wholesale
distribution services to its customers. In early 2001, the company acquired a new customer,
Stores, which brought to the company a significant increase in product volume. By July,
K-Mart business and various problems associated with it, had created a situation which would
in a decrease in service levels to the customers unless the Employer found a way to increase
productivity to meet the demand.
On July 16, 2001, the Employer met with the Union to discuss the impact of the new
on the operation and to explore ways in which the Employer could meet its customer's
Employer advised the Union that it was necessary to increase the mandatory
overtime levels from the current and historic two hours per day to a maximum of four
hours. At the
meeting, the Union proposed several ways in which the mandatory overtime of two hours
perhaps be maintained, to wit.: hiring more employees; using summer help or casuals;
identifying product stored in trailers; using third shift employees to work overtime; voluntary
overtime; inventory control; asking more people on first shift to stay late. Two days
meeting, July 18, 2001, the Employer posted a notice in the form of a memorandum from
Manager Bob Wilming to the employees informing them that, for the remainder of that week
the daily mandatory overtime was being increased from two to a maximum of four hours
The posting stated that "We are hopeful that this Overtime policy can be reversed shortly."
Employer advised the Union of its intent to post this notice prior to doing so but did not ask
did it receive, the Union's agreement to implement the change. This increased mandatory
policy stayed in effect for about one month ending in the second or third week of August,
forms the basis of this grievance.
THE PARTIES' POSITIONS
The Union argues that the unilateral extension of the mandatory overtime period by
Employer violated the collective bargaining agreement because the practice of a two hour
overtime period has been in effect for over 25 years and, as such, has become a part of the
In other words, it is a binding past practice. Citing Texas Util. Generating Div., 92 LA
1312 (McDermott, 1989), the Union says "In cases where the contract is completely silent
respect to a given activity, the presence of a well established practice, accepted or condoned
parties, may constitute, in effect, an unwritten principle on how a certain type of situation
treated." The Union refers to Richard Mittenthal's characteristic's of a binding past practice:
and consistency; longevity and repetition; and acceptability and argues that these
to the instant practice and should, consequently, identify it as binding upon the parties.
The Union argues that this practice is clear and consistent because it has been the
over 25 years and because the record reflects that the practice was "normal operating
far back as 1982. (Referencing Union Exhibit 2) Also, over the years the Employer has
the Union about extending the time requirements for mandatory shift overtime reflecting the
Employer's understanding that changing it without the consent of the Union would be
with past practice.
For the same reasons mentioned above, the Union argues that the practice's longevity
repetition cannot be questioned.
As for the acceptability element, the Union argues that the practice was accepted
question for over 25 years and only became unacceptable in 2001 when the Employer
Citing Village of Washington Park, 113 LA 362 (Wolff, 1999), the Union argues that
the Employer lacked the authority to change the mandatory overtime policy because, as an
past practice, it is as binding upon the parties as any other contractual term expressed
order to change a binding past practice, the Union asserts that the Employer must negotiate
Union for its removal or modification. It cites language from United States Borax &
Corp., 48 LA 641, 645-646 (Bernstein, 1967) as follows:
Contract and practice are interconnected. . . the common law of
the shop necessarily integrates
them. . . How, then, shall a practice which is interwoven with the written agreement be
Does such an action require the approval of both parties or may the employer it to an end
Once again, there is consensus among the authorities, holding that agreement is necessary to
terminate at least in so far as employee benefits are concerned that has been in effect for at
decade cannot expire; it must be affirmatively legislated out of existence by mutual consent.
Responding to the Employer's argument that its management rights justified the
implementation of the new policy, the Union reminds the Arbitrator that other arbitrators
consistently held that management rights clauses do not relieve an employer of the duty to
over changes to a binding past practice and cites City of Rock Island, 116 LA 173 (Wolff,
and Fleming Companies, Inc., 112 LA 1018 (Bressler, 1999) in support.
Finally, the Union urges the Arbitrator to find that the collective bargaining
requires overtime to be assigned in accordance with past practice and that any deviation from
past practice absent negotiations with the Union constitutes a violation of the CBA.
The Employer argues that there is no past practice relating to the scheduling of
overtime. It cites the standards enunciated in Celanese Corporation of America, 24 LA 168,
(1954) for making a determination as to whether a past practice is binding or not:
In the absence of a written agreement, "past practice", to be
binding on both parties, must be (1)
unequivocal; (2) clearly enunciated and acted upon (3) readily ascertainable over a reasonable
of time as a fixed, and established practice accepted by both parties. Id.
The Employer argues that even though "the company for many years followed this
that is insufficient to make it binding on the company." It says that the practice is neither
enunciated nor is it accepted by the company, and there is no contractual language which
limits overtime scheduling to only two hours per shift. The Employer asserts that under
(Company Authority), it retains the exclusive right to manage and supervise all procedures
operations and to select and direct all working forces. Citing Ford Motor Company, 19 LA
241 (Shulman, 1952) as standing for the proposition that for a past practice to be binding it
spring from mutual agreement and, here, the Employer says, there was no such "mutual
This fact is evidenced, argues the Employer, by the events in September, 2000, when the
attempted to exceed the two hour practice and met resistance from the Union. Ultimately,
Employer found alternative ways to get the work out and further conflict was avoided. Also,
Employer refers to events in June of 2001 where the Employer "made another unilateral
it implemented a "five hour window between overtime shifts for safety reasons." These two
examples, says the Employer, demonstrate that in the overtime context there was no settled
doing things and, hence, no mutual agreement binding on the parties.
Relative to the language contained in Article 3.2, which states that "the company
continue to assign overtime consistent with past practice," the Employer argues that this
refers to the Union's concerns about reductions in overtime and for employees reporting
work being compelled to work overtime for an additional two hours beyond the end of their
Thus, because this language refers to concerns other than the two hour mandatory overtime
maximum, it does not control this case. Consequently, the Employer reasons that no
language limits its right to impose more than two hours in mandatory overtime if its business
The Employer cautions the Arbitrator not to read an implied term into the contract
not address the specific issue in this case and reminds the Arbitrator that simply because the
had not used its discretion to exceed the two hour limit on mandatory overtime in the past it
not consequently be deemed to have lost that discretion.
The Employer argues that because of excessive and unanticipated work volumes it
justified, by virtue of its management rights, in increasing the amount of mandatory shift
It cites Local 7815, United Paperworkers International Union, AFL-CIO, CLC, Case 58,
No. 52451, A-5349 (Crowley, 1995) as standing for the proposition that the scheduling of
"generally conceded to be a fundamental right of management" and that the past practice of
scheduling overtime alleged in that case was "nothing more than the manner in which the
had in the past, chosen to schedule overtime." The Employer also cites Mallinckrodt
Works, 38 LA 267 (Hilpert, 1961) as the authority permitting the Employer to schedule
exclusively and unilaterally and argues that its actions in the instant case were consistent with
The Employer finally argues that the scope of the practice alleged by the Union must
viewed in light of the underlying circumstances so that the "true dimensions" of the practice
appreciated. It argues that the operational needs of the LaCrosse Division required additional
overtime and that the Employer had "maxed" out on the use of casuals and summer temps
hiring new associates as fast as possible. Consequently, says the Employer, in order to
levels of customer service and productivity it was forced to increase mandatory overtime.
Employer maintains that even if the practice rose to the level of a binding agreement, it
the exercise of management's legitimate function. Citing Standard Oil Company, 16 LA 73
(1951). The Employer argues that the business levels facing the company at the time were
than the business levels which had existed previously and that any prior past practice of
scheduling should be limited in scope to the circumstances existing at the time. It cites
Meier's decision in City of Superior and Superior City Employees Union Local 244, WERC
Case No. 149, No. 54477, MA-9696 as authority for this argument.
This Arbitrator's primary consideration of this matter is governed by the terms of the
collective bargaining agreement and of the facts and circumstances surrounding the issue and
practice of the parties. In fact, it is the existence, or lack thereof, of that past practice and
character as binding on the parties, or not, upon which this grievance stands or falls.
The Union argues that a past practice has been established as to the method by which
mandatory shift overtime is scheduled. Because the practice has been to limit such overtime
hours and because this practice has been in effect for over 25 years the Union believes that it
taken on the weight and authority of a term of the contract. In other words, it has become a
past practice." While the Union argues that the binding nature of the practice alone is
the Arbitrator to sustain the grievance, it asserts that the practice has become more than a
part of the contract; it has been bargained into the contract under Article 3, Sec. 3.2's
states "The Company shall continue to assign overtime consistent with past
practice." (Emphasis in
original.) Hence, a violation of the past practice of limiting mandatory overtime to two
according to the Union, is a clear violation of the black and white letter of the contract.
The Employer's position is just the opposite. It argues that a binding past practice
established upon these facts within the accepted definitions of "past practice." It says that its
scheduling practice was merely an exercise of its managerial rights with no thought of
commitment for the future and that, faced with extraordinary circumstances, as it was in this
it had the authority to unilaterally modify the practice.
We start the analysis with a clear and workable definition of "past practice." Richard
Mittenthal provides it for us in his article "Past Practice and the Administration of Collective
Bargaining Agreements," 59 Mich. L. Rev. 1017, 1019 (1961):
First, there should be clarity and
consistency. A course of conduct which is vague and
ambiguous or which has been contradicted as often as it has been followed can hardly qualify
practice. But where those in the plant invariably respond the same way to a particular set of
conditions, their conduct may very well ripen into a practice. Second, there should be
repetition. A period of time has to elapse during which a consistent pattern
of behavior emerges.
Hence, one or two isolated instances of certain conduct do not ordinarily establish a practice.
. . .
Third, there should be acceptability. The employees and the supervisors
alike must have knowledge
of the particular conduct and must regard it as the correct and customary means of handling
situation. Such acceptability may frequently be implied from long acquiescence in a known
conduct. Where this acquiescence does not exist, that is, where employees constantly protest
particular course of action through complaints and grievances, it is doubtful that any practice
This record unequivocally supports the notion that the mandatory shift overtime
practice was clear and consistent. Ronald Stokke, a 25-year plus employee, testified that
began work at Fleming, mandatory shift overtime has always been two hours and that when
foremen advised him and his co-workers of the need for overtime they simply said "We need
stay." Stokke testified it was understood that this meant they would put in two hours of
and punch out at four o'clock instead of the normal end of shift at two o'clock. Likewise,
Molling, a 24-year plus employee, testified as follows:
. . .
Q. What shift do you work?
Q. What are the hours of that shift?
A. 6 to 2. 6 a.m. to 2.
Q. . . . And in the course of those twenty-four plus years
with the Company, have you ever been
mandatoried for overtime?
A. Yes. I have.
Q. With the exception of whatever happened during the
summer of 2001, for how many hours of shift
overtime have the people been mandatoried?
A. Two hours.
Q. And how has the Company or its foremen made it
to the fellows that they would have to work
overtime on a given day? Give me examples of how they do that.
A. Usually the foremen will just say, "You are
for late,". . .
Q. How do you know how many hours that means?
A. It's always been two. When they say, you know, "You
want to stay late?" you just automatically
figure it's two hours.
. . .
Q. Have you ever heard the phrase, "Congratulations,
you are all boned"?
Q. What does that mean?
A. That means you are mandatoried.
Q. Is that a foreman usage, that type of usage?
Q. For how many hours are you mandatoried when they
A. Generally it's always two hours.
Q. . . . Have there ever been times, except for the
of 2001, when people were mandatoried for
three or four hours?
. . .
The testimony of 18-year employee Doug Michener is consistent with the foregoing.
Newcomb, the Employer's distribution manager, who has been employed with the company
roughly 24 years, testified that, until the summer of 2001, they "Never got in a position
where we had
to do that (extend mandatory overtime beyond two hours) where it would have potentially
our customer base." Finally, Union Exhibit 2, a letter from the Employer's general counsel
Union's business representative dated April 1, 1982, refers to the two hour overtime
"the Company's normal operating procedure." Thus, I find that the practice was not only
consistent but was followed often over a
lengthy period of time giving it the requisite longevity and repetition required by
definition. The last requirement of that definition, acceptability, is also demonstrated by the
evidence. There is no question that the foremen and the workers, by virtue of the language
announce the requirement for mandatory overtime, evidenced their knowledge of the
conduct and regarded it as the correct and customary means of handling the mandatory
situation. This acquiescence of the practice continued for a long period of time thus
final element enunciated by Mittenthal, acceptability.
There were many opportunities over the years for the Employer to have bargained a
in this consistent and embedded practice had that been management's desire. It did not do
least until the year 2000, at which time the practice was codified under Article 3,
Paragraph 3.2) and
the practice became, over the years, an accepted part of the employee's working conditions.
therefore conclude that the Union has proved, as it had the burden to do, the existence of a
The Employer urges the Arbitrator to apply the standards enunciated by Arbitrator
Celanese Corporation of America, 24 LA 168 (Justin, 1954) and argues that if I do I will not
be able to find a binding past practice to exist. I disagree. The standards set forth by
Justin have been essentially incorporated in the Mittenthal test. They are that the practice be
unequivocal; clearly enunciated and acted upon and readily ascertainable over a reasonable
time as a fixed, and established practice accepted by both parties. (Id.) The record dovetails
practice in the instant case rather nicely with Arbitrator Justin's criteria and leads the
the same conclusion: the practice here is a binding one.
The Employer's argument that there was no mutual agreement between the parties
light of the foregoing references to the record. In support of this argument it refers to a
September, 2000, when the Employer "attempted to exceed the 'practice' of two (2) hour
overtime. The company did not implement it on that occasion, but met with resistance from
Union on this issue." Of course it met with resistance from the Union! As a binding past
the Employer's unilateral attempt to modify it would have constituted a breach. This event
evidence the lack of mutual agreement, it evidences the Union's expression of its belief in
nature of the practice and the Employer's acquiescence of that practice due to its failure to
change. This event is not evidence that "there was no settled way of doing things in the
context," as the Employer suggests, but, rather, that there was a settled way
of doing things in that
context and that the Union intended to keep it that way. Arbitrator Shulman's observation in
Motor Company, 19 LA 237, 241 (1952) is cogent here:
A practice, whether or not fully stated in writing, may be the
result of an agreement or mutual
understanding. And in some industries there are contractual provisions requiring the
unnamed practices in existence at the execution of the collective agreement. . . A practice
on mutual agreement may be subject to change only by mutual agreement. Its binding
quality is due,
however, not to the fact that it is a past practice but rather to the agreement in which it is
The Employer argues that the Union's reliance on the last sentence in Article 3,
3.2, in support of the idea that the practice had attained the character of a binding past
no merit because "that sentence was retained in the 2000 agreement at the request of the
address concerns other than the one at issue here." The Employer asserts that the Union
retain that sentence because it was concerned about an attempt to reduce overtime by adding
shift and because the Union did not want members who reported early for work to be held
for two hours mandatory overtime. Therefore, says the Employer, the agreement does not
the practice of limiting mandatory overtime to two hours but to other considerations related
practice. In other words, the "past practice" referred to in Article 3, Paragraph 3.2, is not
hour limit itself but the implementation of that limit upon employees who put
in hours before their
regular shift begins and the fact that the Union did not want overtime pay reduced below two
in the event a new shift were added. I find no merit in this argument. There is a past
practice or there
is not. The testimony is clear on the point that the two hour mandatory shift overtime limit
in effect for over 25 years and, with the inclusion of the language in Article 3,
Paragraph 3.2, the
practice becomes a part of the written contract as opposed to an implied term. The task then
becomes merely to define the practice to which the language refers, which I have done. The
Employer cites Service Employees International Union, Case 384, No. 47049,
(Shaw, 1993) in support of its argument that the scope of the practice here is limited to the
parameters and must exclude that part which limits mandatory shift overtime to two hours.
SEIU case, appropriately, limits the scope of a past practice "to those matters the
parties are in
agreement with." The parties in the instant case have been in agreement with this
practice's two hour
limitation on mandatory shift overtime for over 25 years. Hence, SEIU is not supportive of
Finally, the Employer cites Standard Oil Company, 16 LA 73 (1951) in support of its
argument that even if the practice rises to the level of a binding practice it cannot restrict the
of management's legitimate function, i.e., its decision to increase mandatory shift overtime in
of an increase in business. In Standard Oil, however, the agreement, unlike the one here,
an express written exception for "special circumstances" which allowed the company to
custom. The Board in Standard Oil observed:
Custom can, under some unusual circumstances, form an implied
term of a contract. Where the
Company has always done a certain thing, and the matter is so well understood and taken for
that it may be said that the Contract was entered into upon the assumption that that
would continue to be taken, such customary action may be an implied term. Id.
Such is the case here. But more, the implied term has been written into the contract at
Article 3 as
a result of the bargaining process. Since it was bargained by the parties, it came to be a
way" of doing things and not a "present way" of scheduling mandatory overtime. See Ford
Company, Id. Therefore, the facts of Standard Oil do not square with those in this case.
same distinction applies to the facts in Local 7815, United Paperworkers International Union,
AFL-CIO, CLC, Case 58, No. 52451, A-5349 (Crowley, 1995), cited by the Employer,
was no express contractual
provision on the scheduling of overtime. Even if the past practice had not been written
contract, a party may not unilaterally modify a binding past practice. The management
is broad but it does not give management the unilateral right to ignore a binding past practice
more than it gives management the unilateral right to modify a written term of the
Fulton County Treasurer, 110 LA 489 (1998); General Mill, Inc., 101 LA 953 (1993);
Mittenthal, Past Practice and the Administration of Collective Bargaining
Agreements, Id.; City
of Rock Island, 116 LA 173 (2001).
In light of the foregoing, it is my
The Employer did violate the collective bargaining agreement when it extended the
mandatory shift overtime from two hours to four hours.
In response to the Union's request that the Arbitrator issue a "cease and desist
Arbitrator believes that a finding that the Employer violated the agreement is tantamount to
order insofar as the assumption is that the Employer will discontinue any such violations
of this award.
In response to the Union's request that the Arbitrator fashion a penal remedy against
Employer for future violations of the agreement related to this award, I decline to do so with
understanding that any such violations will or may be the subject of future litigation within
award will be given appropriate weight and deference.
Dated at Wausau, Wisconsin, this 21st day of June, 2002.
Steve Morrison, Arbitrator