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IN THE MATTER OF ARBITRATION ARBITRATION AWARD
between
FMCS Case No. 220217-03550
CITY OF COLUMBUS, DEPARTMENT Grievance No. 21-24
OF PUBLIC SAFETY, DIVISION OF FIRE Re: Shane Michaels
and
INTERNATIONAL ASSOCIATION OF JOHN M. FELICE
FIRE FIGHTERS, LOCAL NO. 67 Arbitrator
SUBJECT: Promotion
Virtual Hearing held on July 20, 2022
APPEARANCES
For the City For the Union
Lee Ann Rabe, Esq. Colleen M. Arnett, Esq.
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BACKGROUND
The undersigned Arbitrator was selected by the parties to hear and decide a matter
in dispute between the International Association of Fire Fighters, Local 67 (hereinafter
teferred to as "Union") and the City of Columbus, Department of Public Safety, Division
of Fire (hereinafter referred to as "City").
The dispute is properly before the Arbitrator in accordance with the Collective
Bargaining Agreement (CBA) between the parties.
On July 20, 2022, a virtual hearing was held at which time a full opportunity to
introduce evidence and examine and cross-examine witnesses was afforded to both parties.
Post-hearing briefs were filed by the parties on August 16, 2022.
ISSUE
Did the City violate section 10.1 in Article 23 of the CBA when it did not promote
the Grievant to the position of fire Lieutenant in November 2021? If so, what shall be the
remedy?
RELEVANT CONTRACT PROVISIONS
Article 10: Discipline and Treatment
Section 10.1:
Any discharge, demotion, suspension, removal, or other disciplinary measure shall
be only for just cause. Additionally, all other treatment of an employee, including
assignment and transfer, shall be reasonable, fair and non-discriminatory in nature.
Article 23: Promotions
Section 23.1:
The reason the Civil Service Commission administers fire promotional examinations
is to select competent supervisors for the Division. The City and Union support
and agree to the goal of the development of content-valid, job-related promotional
examinations, and further commit their best efforts to assure this end. The
Commission is given this responsibility under City Charter, and must comply with
Charter requirements, Commission rules, federal regulations and professional testing
standards and guidelines; provided, however, that nothing in this statement or in
this Article shall be construed as a limitation on the Union’s bargaining rights as set
forth in Ohio Revised Code Chapter 4117 and applicable case law thereunder.
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Article 23.5(D):
When a promotion eligible list is in existence and a vacancy occurs in a position for
which the list was established, the Appointing Authority shall certify the fact to the
Civil Service Commission. The Civil Service Commission shall then certify the list
of eligible to the Appointing Authority, and the promotion made within fifteen (15)
working days of said Appointing Authority certification. The fifteen (15) working
days time line refers to Civil Service Staff working days.
Article 23.5(E):
All other rights of bargaining unit employees related to promotions are specified in
Article 23 of this Contract, the City Charter, or Civil Service Commission Rules and
Regulations.
NATURE OF THE GRIEVANCE
On November 23, 2022, the Union filed a grievance on behalf of Shane Michaels
(the Grievant) claiming the City violated the CBA when it did not appoint the Grievant to
the vacant Fire Lieutenant position. The Union asserts that the City’s failure to appoint the
Grievant to the Fire Lieutenant position was not reasonable, fair and nondiscriminatory.
The City contends that the grievance is without merit, referencing the plain
language in the CBA. The City asserts that it’s decision to appoint was consistent with the
rules of the Civil Service Commission (Commission).
When the parties were unable to resolve the dispute by means of the grievance
procedure, they submitted the matter to the undersigned arbitrator for final binding
disposition.
CONTENTIONS THE PARTIES
The Union contends that, under the Commission’s “Rule of Three,” the City has a
practice of promoting the next highest-ranking individual of the three certified for
promotion. The Union also contends that the City did not follow that procedure when it
chose to bypass the Grievant for promotion. The Union requests that the Grievant be
promoted to the rank of Fire Lieutenant and be awarded rank seniority commensurate with
the promotion and awarded back pay for the time lost in the rank of Fire Lieutenant.
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The City contends that the appointing authority is not required to select the
individual with the highest total score to fill a promotion. The City also contends that there
is no provision in the CBA or the Civil Service Commission rules and regulations that
require that the appointing authority select the highest-scoring candidate on the eligibility
list. They request that the instant grievance be denied.
FINDINGS AND CONCLUSIONS
When a vacancy occurs in the rank of Fire Lieutenant, the City’s Department of
Public Safety notifies the Commission, which then certifies a list of the three highest
ranking candidates from the eligible list to the appointing authority. In the instant case, the
appointing authority is the City's Director of Public Safety (“Director”). According to the
Rule of Three, the Director then selects one of the three on the list to be promoted.
The Grievant has been a firefighter/paramedic since 2002 and served with the
Columbus division of Fire since 2015. The Grievant served as a fire instructor with the
Columbus division of Fire since 2016. The Grievant successfully completed the
promotional exam to become a Fire Lieutenant and was then placed on the 2021 Fire
Lieutenant eligibility list along with two other individuals. These two individuals also
passed the eligibility examination. The three names provided to the Commission were the
Grievant, Brandon G. Lauck, and Mitchel Klosterman. All three were ranked by their total
score, Klosterman was selected to fill the vacancy. This action precipitated the grievance
in the instant case filed on behalf of the Grievant.
At the threshold, the Union argues that the Grievant was denied a promotion
because of his previous accidents. The essence of the Union's argument centers on its
claim that the CBA is clear and unambiguous. While the Rule of Three does provide for the
appointing authority to select one of the three highest ranking candidates for promotion,
such promotion decisions must comply with section 10.1 of the CBA, which requires that it
be reasonable, fair and nondiscriminatory. In the instant case, the Union bears the burden
of demonstrating with credible evidence that bypassing the Grievant for the promotion was
not reasonable, fair and nondiscriminatory.
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The Union argues that the candidate with the highest score at the time of the
vacancy should be awarded the position. However, there was no evidence of a probative
value presented by the Union that the individual with the highest score would control
promotions. The Commission rules state that when filling a vacancy, “Each appointment
shall be made from a group of three eligible certified from those standing highest on the
eligible list and one of said group must be appointed.” There is no provision in the CBA or
in the Commission rules stating that the highest-scoring candidate must be appointed. If
the arbitrator were to sustain the Union's position, it would vitiate the Commission’s Rule
of Three, wherein, in the Union's opinion, the individual with the highest score would
automatically be appointed.
The Union introduced no evidence as to the reason for the selection of Klosterman.
The Grievant appears to believe that he was passed over for promotion because of his
criminal record and/or the fact that he had an open administrative investigation at the time
of the November 2021 vacancy.
When selecting a candidate to fill a vacancy, the appointing authority “may
consider departmental personnel records of efficiency, character, conduct and seniority
when making their decision.” The Grievant's criminal arrests and convictions and his
subsequent discipline for those acts are part of his overall personnel record.
In October 2019, the Grievant was arrested for operating a vehicle under the
influence of alcohol or drugs (OVI), City Code 2133.0.1 He refused to take a breath test at
that time and his license was administratively suspended. Subsequently, on July 30, 2020,
the Grievant pleaded guilty to reckless operation, City Code 2133.02, a Third Degree
Misdemeanor. As a result of this conduct, the Grievant received a verbal reprimand.
In August 2021, the Grievant was again arrested for OVI, this time charged under
State Code R.C. 4511. He again refused to take a breath test at the time of his arrest and his
license was suspended for 21 days. On January 6, 2022, the Grievant pleaded guilty to
physical control, R.C. 4511.194(B), a First-Degree Misdemeanor which constituted a
serious level of misdemeanor offenses. In November 2021, at the time the vacancy
occurred in the instant case, the Grievant’s second arrest was still under administrative
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investigation. Ultimately, in March 2022, the Grievant received a written reprimand for the
second offense.
The Director may have considered these offenses in the Grievant's overall personnel
record when making his decision regarding the November 2021 vacancy. He may also
have considered the fact that the Grievant had an administrative investigation at the time,
as well as previous discipline. The Director was within his rights to consider these facts
when making his decision.
In support of its position that the Director's decision was discriminatory, the Union
presented a list of employees who had been promoted despite having various offenses on
their records. However, the listing did not indicate to what position each individual was
promoted, no evidence was presented involving the other candidates and their respective
scores on the eligible list for promotions at the time relevant and no evidence was
presented as to the reasons for the Director’s decision-making process for those
promotions.
The essence of the Union's position on discrimination rested on allegations which
are not proof. Mere allegations unsupported by convincing evidence are generally not
given any weight by arbitrators. In the instant case, the Union provided no sufficient
evidence for this arbitrator to make an informed decision on this issue.
The Grievant, in testimony, stated that he was recommended for promotion by the
Fire Chief. However, recommendations by the Fire Chief does not bind the Director in any
manner. The Director is permitted to consider the efficiency, character, conduct and
seniority of the individuals certified to potentially fill a vacancy. The Union representative
admitted in his testimony that the Director is not bound to follow the recommendation of
the Fire Chief.
The Union argues that the City chose not to call the Director as a witness to testify
as to why he chose not to promote the Grievant. The Union argues that the City provided
no evidence at the hearing to support its claims that the August 2021 accident and
subsequent investigations had no bearing whatsoever on the Director's decision to bypass
the Grievant for promotion. The Union asserts that when a party fails to call, as a witness,
person who would be in a position to contribute informed testimony, the arbitrator may
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infer that, had the witness been called, the testimony adduced would have been adverse to
the position of that party.
Assuming arguendo, that those facts were integral to the Director’s decision-making
process, the consideration of those facts is not unreasonable, unfair or discriminatory.
In the instant case, if the Union believed that the testimony of the Director was
critical to its overall position, they could have subpoenaed the Director to testify in the
hearing. The Union did not call the Director to testify.
In an effort to further support its position, the Union introduced a previous
arbitration award which, in their opinion, confirms their overall position in the instant case.
However, after reviewing that prior award, the arbitrator finds it is not dispositive of
the issue presented in the instant case. In that prior award, the case centered on the
grievant’s insubordination as the basis for the appointing authority’s decision to deny
promotion to the grievant. In his award, that arbitrator stated that he, “... cannot overlook
the fact that it was the City that explicitly chose as a result of the settlement to drop its
insubordination charge against the grievant, and to impose discipline against the grievant
solely for an attendance violation.” That arbitrator also found that, “It would be unfair for
me to now consider that conduct, and unfair in my view for the City to rely on that conduct
in denying the promotion to the grievant. Further, once the City agreed to drop the
insubordination charge, the grievant was entitled to believe that whether the City
eventually denied or approved his promotion, it would not be denied on the basis of the
alleged insubordination.”
That arbitrator found that the City's decision not to promote the Grievant was unfair
and was in violation of section 10.1 of the CBA. However, in the instant case, the
Grievant’s OVI arrest, convictions for reckless operations and physical control the
discipline for his first conviction and the ongoing investigation in the second were an
integral part of the Grievant's record at the time of the Director’s decision. Therefore, it
would be reasonable and fair for the Director to have considered those circumstances
when making his promotional decision.
In a final effort to bolster its case, the Union alleged there has been a customary past
practice of the appointing authority to promote the highest-ranking individual on the
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eligible list of candidates. The Union alleges that this customary past practice constitutes
an implied term under the CBA. The Union, in support of this claim, states that: It is
clear that it has been the custom, or past practice of the appointing authority to promote
the highest-ranking individual on the list of three. In fact, even individuals with active
discipline on their records have been promoted in accordance with this practice. In some
circumstances, custom can 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 granted that
it may be said that the Contract was entered into upon the assumption that the customary
action would continue to be taken, such customary action may be an implied term.”
(Citing Esso Standard Oil Co., 16 LA 73, 74 in support thereof).
Past practice has been utilized by arbitrators for any of the following purposes:
1 To provide the basis of rules governing matters not included in the written
contract,
To indicate the proper interpretation of ambiguous contract language, or
To support allegations that the clear language of the written contract has
been amended by mutual action or agreement.
Understandably, the weight to be accorded past practice, as an interpretation guide
varies greatly from case to case. The weight to be given to past practice in any case is
how well it is established. In this regard, Arbitrator Robert E. Mathews provides insight: “If
practice is to be given sufficient weight in contract interpretation, the practice must be of
sufficient generality and duration to imply acceptance of it as an authentic construction of
the contract.” (See Sheller Mfg. Corp., 10 LA 617, 620).
To become a practice, the way of operating must be so frequent and regular and
repetitious so as to establish a mutual understanding that the way of operating will
continue in the future. (See Dayton Steel Foundry, Wagner, 30 LA 35). A past practice
may be made manifest by the consistent conduct of the parties. Attempts to block that
conduct may be evidence of non-concurrence and, hence, absence of mutuality. Lacking
mutuality, the practice is not an established one. A review of the overall record leads to
the inescapable conclusion that a consistently applied, mutually acceptable past practice
with respect to promotions under the Rule of Three does not exist in the instant case.
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On the basis of the foregoing and after considering the facts and evidence adduced
in the instant case, there was no evidence adduced by the Union to confirm that the
decision of the Director was unreasonable, unfair or discriminatory.
AWARD
The grievance is hereby denied.
Respectfully submitted,
in M. Felice, Arbitrator
Dated: August 23, 2022
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a oe Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Nov 22 10:56 AM-22CV007871 0G170 - Cl IN THE MATTER OF ARBITRATION ARBITRATION AWARD between FMCS Case No. 220217-03550 CITY OF COLUMBUS, DEPARTMENT Grievance No. 21-24 OF PUBLIC SAFETY, DIVISION OF FIRE Re: Shane Michaels and INTERNATIONAL ASSOCIATION OF JOHN M. FELICE FIRE FIGHTERS, LOCAL NO. 67 Arbitrator SUBJECT: Promotion Virtual Hearing held on July 20, 2022 APPEARANCES For the City For the Union Lee Ann Rabe, Esq. Colleen M. Arnett, Esq. a Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Nov 22 10:56 AM-22CV007871 0G170 - Cl BACKGROUND The undersigned Arbitrator was selected by the parties to hear and decide a matter in dispute between the International Association of Fire Fighters, Local 67 (hereinafter teferred to as "Union") and the City of Columbus, Department of Public Safety, Division of Fire (hereinafter referred to as "City"). The dispute is properly before the Arbitrator in accordance with the Collective Bargaining Agreement (CBA) between the parties. On July 20, 2022, a virtual hearing was held at which time a full opportunity to introduce evidence and examine and cross-examine witnesses was afforded to both parties. Post-hearing briefs were filed by the parties on August 16, 2022. ISSUE Did the City violate section 10.1 in Article 23 of the CBA when it did not promote the Grievant to the position of fire Lieutenant in November 2021? If so, what shall be the remedy? RELEVANT CONTRACT PROVISIONS Article 10: Discipline and Treatment Section 10.1: Any discharge, demotion, suspension, removal, or other disciplinary measure shall be only for just cause. Additionally, all other treatment of an employee, including assignment and transfer, shall be reasonable, fair and non-discriminatory in nature. Article 23: Promotions Section 23.1: The reason the Civil Service Commission administers fire promotional examinations is to select competent supervisors for the Division. The City and Union support and agree to the goal of the development of content-valid, job-related promotional examinations, and further commit their best efforts to assure this end. The Commission is given this responsibility under City Charter, and must comply with Charter requirements, Commission rules, federal regulations and professional testing standards and guidelines; provided, however, that nothing in this statement or in this Article shall be construed as a limitation on the Union’s bargaining rights as set forth in Ohio Revised Code Chapter 4117 and applicable case law thereunder. Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Nov 22 10:56 AM-22CV007871 0G170 - Cl Article 23.5(D): When a promotion eligible list is in existence and a vacancy occurs in a position for which the list was established, the Appointing Authority shall certify the fact to the Civil Service Commission. The Civil Service Commission shall then certify the list of eligible to the Appointing Authority, and the promotion made within fifteen (15) working days of said Appointing Authority certification. The fifteen (15) working days time line refers to Civil Service Staff working days. Article 23.5(E): All other rights of bargaining unit employees related to promotions are specified in Article 23 of this Contract, the City Charter, or Civil Service Commission Rules and Regulations. NATURE OF THE GRIEVANCE On November 23, 2022, the Union filed a grievance on behalf of Shane Michaels (the Grievant) claiming the City violated the CBA when it did not appoint the Grievant to the vacant Fire Lieutenant position. The Union asserts that the City’s failure to appoint the Grievant to the Fire Lieutenant position was not reasonable, fair and nondiscriminatory. The City contends that the grievance is without merit, referencing the plain language in the CBA. The City asserts that it’s decision to appoint was consistent with the rules of the Civil Service Commission (Commission). When the parties were unable to resolve the dispute by means of the grievance procedure, they submitted the matter to the undersigned arbitrator for final binding disposition. CONTENTIONS THE PARTIES The Union contends that, under the Commission’s “Rule of Three,” the City has a practice of promoting the next highest-ranking individual of the three certified for promotion. The Union also contends that the City did not follow that procedure when it chose to bypass the Grievant for promotion. The Union requests that the Grievant be promoted to the rank of Fire Lieutenant and be awarded rank seniority commensurate with the promotion and awarded back pay for the time lost in the rank of Fire Lieutenant. a a Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Nov 22 10:56 AM-22CV007871 0G170 - C2 The City contends that the appointing authority is not required to select the individual with the highest total score to fill a promotion. The City also contends that there is no provision in the CBA or the Civil Service Commission rules and regulations that require that the appointing authority select the highest-scoring candidate on the eligibility list. They request that the instant grievance be denied. FINDINGS AND CONCLUSIONS When a vacancy occurs in the rank of Fire Lieutenant, the City’s Department of Public Safety notifies the Commission, which then certifies a list of the three highest ranking candidates from the eligible list to the appointing authority. In the instant case, the appointing authority is the City's Director of Public Safety (“Director”). According to the Rule of Three, the Director then selects one of the three on the list to be promoted. The Grievant has been a firefighter/paramedic since 2002 and served with the Columbus division of Fire since 2015. The Grievant served as a fire instructor with the Columbus division of Fire since 2016. The Grievant successfully completed the promotional exam to become a Fire Lieutenant and was then placed on the 2021 Fire Lieutenant eligibility list along with two other individuals. These two individuals also passed the eligibility examination. The three names provided to the Commission were the Grievant, Brandon G. Lauck, and Mitchel Klosterman. All three were ranked by their total score, Klosterman was selected to fill the vacancy. This action precipitated the grievance in the instant case filed on behalf of the Grievant. At the threshold, the Union argues that the Grievant was denied a promotion because of his previous accidents. The essence of the Union's argument centers on its claim that the CBA is clear and unambiguous. While the Rule of Three does provide for the appointing authority to select one of the three highest ranking candidates for promotion, such promotion decisions must comply with section 10.1 of the CBA, which requires that it be reasonable, fair and nondiscriminatory. In the instant case, the Union bears the burden of demonstrating with credible evidence that bypassing the Grievant for the promotion was not reasonable, fair and nondiscriminatory. Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Nov 22 10:56 AM-22CV007871 0G170 - C2 The Union argues that the candidate with the highest score at the time of the vacancy should be awarded the position. However, there was no evidence of a probative value presented by the Union that the individual with the highest score would control promotions. The Commission rules state that when filling a vacancy, “Each appointment shall be made from a group of three eligible certified from those standing highest on the eligible list and one of said group must be appointed.” There is no provision in the CBA or in the Commission rules stating that the highest-scoring candidate must be appointed. If the arbitrator were to sustain the Union's position, it would vitiate the Commission’s Rule of Three, wherein, in the Union's opinion, the individual with the highest score would automatically be appointed. The Union introduced no evidence as to the reason for the selection of Klosterman. The Grievant appears to believe that he was passed over for promotion because of his criminal record and/or the fact that he had an open administrative investigation at the time of the November 2021 vacancy. When selecting a candidate to fill a vacancy, the appointing authority “may consider departmental personnel records of efficiency, character, conduct and seniority when making their decision.” The Grievant's criminal arrests and convictions and his subsequent discipline for those acts are part of his overall personnel record. In October 2019, the Grievant was arrested for operating a vehicle under the influence of alcohol or drugs (OVI), City Code 2133.0.1 He refused to take a breath test at that time and his license was administratively suspended. Subsequently, on July 30, 2020, the Grievant pleaded guilty to reckless operation, City Code 2133.02, a Third Degree Misdemeanor. As a result of this conduct, the Grievant received a verbal reprimand. In August 2021, the Grievant was again arrested for OVI, this time charged under State Code R.C. 4511. He again refused to take a breath test at the time of his arrest and his license was suspended for 21 days. On January 6, 2022, the Grievant pleaded guilty to physical control, R.C. 4511.194(B), a First-Degree Misdemeanor which constituted a serious level of misdemeanor offenses. In November 2021, at the time the vacancy occurred in the instant case, the Grievant’s second arrest was still under administrative Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Nov 22 10:56 AM-22CV007871 0G170 - C2 investigation. Ultimately, in March 2022, the Grievant received a written reprimand for the second offense. The Director may have considered these offenses in the Grievant's overall personnel record when making his decision regarding the November 2021 vacancy. He may also have considered the fact that the Grievant had an administrative investigation at the time, as well as previous discipline. The Director was within his rights to consider these facts when making his decision. In support of its position that the Director's decision was discriminatory, the Union presented a list of employees who had been promoted despite having various offenses on their records. However, the listing did not indicate to what position each individual was promoted, no evidence was presented involving the other candidates and their respective scores on the eligible list for promotions at the time relevant and no evidence was presented as to the reasons for the Director’s decision-making process for those promotions. The essence of the Union's position on discrimination rested on allegations which are not proof. Mere allegations unsupported by convincing evidence are generally not given any weight by arbitrators. In the instant case, the Union provided no sufficient evidence for this arbitrator to make an informed decision on this issue. The Grievant, in testimony, stated that he was recommended for promotion by the Fire Chief. However, recommendations by the Fire Chief does not bind the Director in any manner. The Director is permitted to consider the efficiency, character, conduct and seniority of the individuals certified to potentially fill a vacancy. The Union representative admitted in his testimony that the Director is not bound to follow the recommendation of the Fire Chief. The Union argues that the City chose not to call the Director as a witness to testify as to why he chose not to promote the Grievant. The Union argues that the City provided no evidence at the hearing to support its claims that the August 2021 accident and subsequent investigations had no bearing whatsoever on the Director's decision to bypass the Grievant for promotion. The Union asserts that when a party fails to call, as a witness, person who would be in a position to contribute informed testimony, the arbitrator may 5 a a a Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Nov 22 10:56 AM-22CV007871 0G170 - C2 infer that, had the witness been called, the testimony adduced would have been adverse to the position of that party. Assuming arguendo, that those facts were integral to the Director’s decision-making process, the consideration of those facts is not unreasonable, unfair or discriminatory. In the instant case, if the Union believed that the testimony of the Director was critical to its overall position, they could have subpoenaed the Director to testify in the hearing. The Union did not call the Director to testify. In an effort to further support its position, the Union introduced a previous arbitration award which, in their opinion, confirms their overall position in the instant case. However, after reviewing that prior award, the arbitrator finds it is not dispositive of the issue presented in the instant case. In that prior award, the case centered on the grievant’s insubordination as the basis for the appointing authority’s decision to deny promotion to the grievant. In his award, that arbitrator stated that he, “... cannot overlook the fact that it was the City that explicitly chose as a result of the settlement to drop its insubordination charge against the grievant, and to impose discipline against the grievant solely for an attendance violation.” That arbitrator also found that, “It would be unfair for me to now consider that conduct, and unfair in my view for the City to rely on that conduct in denying the promotion to the grievant. Further, once the City agreed to drop the insubordination charge, the grievant was entitled to believe that whether the City eventually denied or approved his promotion, it would not be denied on the basis of the alleged insubordination.” That arbitrator found that the City's decision not to promote the Grievant was unfair and was in violation of section 10.1 of the CBA. However, in the instant case, the Grievant’s OVI arrest, convictions for reckless operations and physical control the discipline for his first conviction and the ongoing investigation in the second were an integral part of the Grievant's record at the time of the Director’s decision. Therefore, it would be reasonable and fair for the Director to have considered those circumstances when making his promotional decision. In a final effort to bolster its case, the Union alleged there has been a customary past practice of the appointing authority to promote the highest-ranking individual on the / Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Nov 22 10:56 AM-22CV007871 0G170 - C2 eligible list of candidates. The Union alleges that this customary past practice constitutes an implied term under the CBA. The Union, in support of this claim, states that: It is clear that it has been the custom, or past practice of the appointing authority to promote the highest-ranking individual on the list of three. In fact, even individuals with active discipline on their records have been promoted in accordance with this practice. In some circumstances, custom can 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 granted that it may be said that the Contract was entered into upon the assumption that the customary action would continue to be taken, such customary action may be an implied term.” (Citing Esso Standard Oil Co., 16 LA 73, 74 in support thereof). Past practice has been utilized by arbitrators for any of the following purposes: 1 To provide the basis of rules governing matters not included in the written contract, To indicate the proper interpretation of ambiguous contract language, or To support allegations that the clear language of the written contract has been amended by mutual action or agreement. Understandably, the weight to be accorded past practice, as an interpretation guide varies greatly from case to case. The weight to be given to past practice in any case is how well it is established. In this regard, Arbitrator Robert E. Mathews provides insight: “If practice is to be given sufficient weight in contract interpretation, the practice must be of sufficient generality and duration to imply acceptance of it as an authentic construction of the contract.” (See Sheller Mfg. Corp., 10 LA 617, 620). To become a practice, the way of operating must be so frequent and regular and repetitious so as to establish a mutual understanding that the way of operating will continue in the future. (See Dayton Steel Foundry, Wagner, 30 LA 35). A past practice may be made manifest by the consistent conduct of the parties. Attempts to block that conduct may be evidence of non-concurrence and, hence, absence of mutuality. Lacking mutuality, the practice is not an established one. A review of the overall record leads to the inescapable conclusion that a consistently applied, mutually acceptable past practice with respect to promotions under the Rule of Three does not exist in the instant case. oe . Franklin County Ohio Clerk of Courts of the Common Pleas- 2022 Nov 22 10:56 AM-22CV007871 0G170 - C2 On the basis of the foregoing and after considering the facts and evidence adduced in the instant case, there was no evidence adduced by the Union to confirm that the decision of the Director was unreasonable, unfair or discriminatory. AWARD The grievance is hereby denied. Respectfully submitted, in M. Felice, Arbitrator Dated: August 23, 2022