concurring in part and dissenting in part.
{¶ 21} I concur in the portion of the majority’s decision (1) holding that “arrowing” is not specifically permitted as an express contractual term of the collective bargaining agreement (“CBA”) and (2) affirming the appellate court’s *482ruling that the trial court did not have legal authority to issue a cease-and-desist order. However, I respectfully dissent from the majority’s erroneous rulings that (1) arrowing is not an established past practice and (2) arrowing violates the CBA. The record unequivocally demonstrates that arrowing has been a long-established past practice that predated the CBA and continued for 15 years thereafter without objection by the union and for 22 years without a grievance being filed — despite the numerous renegotiations of the CBA prior to 1992. Moreover, even if arrowing was not an established past practice, I agree with the appellate court below that arrowing is permitted pursuant to the city’s reservation of rights under Article II of the CBA and pursuant to R.C. 4117.08 and 4117.10(A). In either event, the portions of the arbitrator’s award denying the grievance concerning that practice and determining that arrowing does not violate the CBA draw their essence from the CBA and are not unlawful, arbitrary, or capricious.
{¶ 22} The majority correctly notes that arrowing began in the 1960s, that the parties entered into collective bargaining agreements every three years from 1977 to 1992, and that the union did not attempt to prohibit or limit the practice of arrowing in the CBA until 1992. The union did not file a grievance protesting the city’s practice of arrowing until 1999 — more than 30 years after the practice began and 22 years after the parties executed the first CBA.
{¶ 23} I agree with the majority that the express language in the CBA does not specifically allow arrowing.4 Additionally, I agree with the majority and the appellate court that Article V of the CBA is limited to the issue of seniority and does not expressly permit arrowing, as argued by the city.
{¶ 24} Resolution of this case, however, hinges on the issue of past practices. The city argues that the union in effect agreed to the practice of arrowing by its inaction for a substantial period of time. The history of the parties’ practices supports this argument.
{¶ 25} When a collective bargaining agreement is silent as to a work-scheduling practice, management’s past practice is an acceptable way of addressing the issue. Ingersoll-Rand (2003), 118 Labor Arb. Reports 275 (Goldstein, Arb.); Bonnell/Tredegar Industries, Inc. v. Natl. Labor Relations Bd. (C.A.4, 1995), 46 F.3d 339, 344 (“An employer’s established past practice can become an implied term of a collective bargaining agreement”); Celanese Corp. of Am. (1954), 24 Labor Arb. Reports 168 (Justin, Arb.); Mittenthal, Past Practice and the Administration of Collective Bargaining Agreements (1961), 59 Mich.L.Rev. 1017.
*483{¶ 26} As Justice Douglas, speaking for the United States Supreme Court majority in United Steelworkers of Am. v. Warrior & Gulf Navigation Co. (1960), 363 U.S. 574, 581-582, 80 S.Ct. 1347, 4 L.Ed.2d 1409, stated, “The labor arbitrator’s source of law is not confined to the express provisions of the contract, as the industrial common law — the practices of the industry and the shop — is equally a part of the collective bargaining agreement although not expressed in it.” See, also, Jackson Purchase Rural Elec. Coop. Assn. v. Local Union 816, Internatl. Bhd. of Elec. Workers (C.A.6, 1981), 646 F.2d 264, 268, citing Detroit Coil Co. v. Internatl. Assn. of Machinists & Aerospace Workers, Lodge 82 (C.A.6, 1979), 594 F.2d 575, 579 (“An arbitrator may properly incorporate the past practices of the parties or the ‘common law of the shop’ into the written collective bargaining agreement where that document is silent or ambiguous on a matter”). This case must be analyzed in that context.
{¶ 27} I agree with the majority that Ohio should adopt the three-prong test for determining the existence of a past practice in labor cases promulgated in Celanese, supra, 24 Labor Arb. Reports at 172.5 Under Celanese, a past practice must be (1) unequivocal, (2) clearly enunciated, and (3) followed for a reasonable period of time as a fixed and established practice accepted by both parties.
{¶ 28} It is the application of the Celanese past-practice test to the facts in this case that causes me to part company with the majority.
{¶ 29} The majority finds the arbitrator’s opinion that the practice of arrowing was “unequivocal and clearly enunciated and acted upon” deficient because that opinion “provides no further assessment of those issues.” But no further assessment of those issues is necessary. Arbitrator O’Connell correctly noted: “The Association’s contention that there is no set standard policy overlooks the point that the practice is simple and easily recognized on its face. Moreover, arrowing is established and recognized by both parties. It has been practiced openly and notoriously for more than 30 years.” The practice of arrowing between the city and fire fighters began in the 1960s and has been consistently and repetitively6 applied without challenge at least until 1992 and without the filing of a grievance until 1999. The nature of that practice is not genuinely in *484dispute, and there is no credible evidence in the record that the parties had any real uncertainty as to what constituted arrowing. Likewise, the city’s practice of arrowing had been openly enunciated and followed for over 30 years. Therefore, the first two prongs of the Celanese past-practice test have been satisfied in this case and are established by the record.
{¶ 30} Under the third prong of the Celanese past-practice test, the practice must be (i) followed for a reasonable period of time (ii) as a fixed and established practice (iii) accepted by both parties. Celanese, supra, 24 Labor Arb. Reports at 172. In this case, arrowing has remained a fixed and established practice, unchallenged for 15 years after the first CBA. Arrowing existed for 30 years before the union filed its grievance. Such an extended period is more than a reasonable period of time. See, e.g., Detroit (1992), 99 Labor Arb. Reports 326, 328 (Kanner, Arb.) (four-year-old past practice recognized).
{¶ 31} Only the question of acceptance remains for analysis.
{¶ 32} An express agreement between the parties is not necessary to prove acceptance of a past practice. Bethlehem Steel Co. (1959), 33 Labor Arb. Reports 374 (Valtin, Arb.).
{¶ 33} When evidence demonstrates that the parties had knowledge of a particular course of conduct, agreement may be implied when there is a continued failure on the part of one party to object to the other’s activity. Willys Motors, Inc. (1954), 22 Labor Arb. Reports 289 (Allen, Arb.).
{¶ 34} The majority concludes that “[t]he history of the negotiations on this issue sufficiently demonstrates the union’s complete lack of acceptance of arrowing.” I disagree with this erroneous conclusion.
{¶ 35} The history of this issue unequivocally demonstrates the fire fighters’ and their union’s acceptance of arrowing as a practice for at least 15 years. From the 1960s to 1977, Cleveland’s fire fighters lived with arrowing as part of the work-scheduling process. There is no evidence that the union objected to the then-established practice of arrowing when the union negotiated the first CBA in 1977. There is no evidence that the union objected to the practice of arrowing or sought to prohibit or limit that practice from 1977 to 1992, even though the CBA was renegotiated every three years during that period. In fact, the union did not attempt to negotiate a prohibition or limitation of the practice of arrowing until 1992 — decades after the practice began and 15 years after the first CBA with the union.
{¶ 36} Silence as to a past practice during subsequent collective bargaining, absent the clear manifestation of a contrary intention, evidences acceptance of that practice. See Cox & Dunlop, The Duty to Bargain Collectively During the Term of an Existing Agreement (1950), 63 Harv.L.Rev. 1097, 1116-1117. The *485best summary of this principle is provided by arbitrator Samuel Chalfie: “A collective bargaining agreement is not negotiated in a vacuum. Rather it is negotiated in a setting of past practices and prior agreements. It may be reasonably assumed that the parties, in shaping bargaining demands as to wages and employee benefits, do so with silent recognition of existing unwritten benefits and working conditions.” Diamond Natl. Corp. (1969), 52 Labor Arb. Reports 33, 35 (Chalfie, Arb.).7 These past practices essentially constitute the “industrial common law.” United Steelworkers, supra, 363 U.S. at 581-582, 80 S.Ct. 1347, 4 L.Ed.2d 1409.
{¶ 37} Additionally, a union’s failure to file a grievance may be construed as acceptance of a past practice. Hill & Sinicropi, Management Rights: A Legal and Arbitral Analysis (1986) 34-36; Eltra Corp. (1981), 76 Labor Arb. Reports 62, 68 (Raymond, Arb.); Associated Wholesale Grocers, Inc. (1982), 82-1 Labor Arb. Awards ¶ 8240, 4098 (Mikrut, Arb.). The reasoning behind this principle has been expressed as follows: “ ‘It is generally accepted that actual practice, if continued without protest over a substantial period of time, is compelling evidence of intent. * * * Having expressed no objections to the practice, the Union has in effect accepted the interpretation [of the employer].’ Willys Motors, Inc., 22 LA 289 (1954).”8 Port Drum Co. (1984), 82 Labor Arb. Reports 942, 944-945 (Holman, Arb.).
{¶ 38} In addition to waiting 15 years to attempt to negotiate a prohibition of or limitation on arrowing, the union waited yet another seven years before it filed its grievance challenging arrowing in this case. The union’s inaction during those extended periods evidences acceptance of the practice of arrowing long before the *486union belatedly attempted to challenge arrowing. Indeed, if the union had demonstrated a “complete lack of acceptance of arrowing,” as found by the majority, and if the CBA prohibits arrowing, as the majority holds, there would have been no need for the union to seek to negotiate a prohibition against arrowing during the CBA negotiations in 1992, 1995, and 1998. If the union really believed that arrowing was not an accepted past practice or was a prohibited practice in 1992 (or before that date), all the union had to do was file a grievance. The union’s decision to pursue this issue by negotiations, not grievance, at that time, speaks volumes, especially given the obvious sophistication of the union and its experienced legal counsel.
{¶ 39} The union’s failure to object to the practice of arrowing for 15 years and its failure to file a grievance for 22 years are more than ample evidence of the union’s acceptance of arrowing as a past practice for purposes of the third prong of the Celanese test.
{¶ 40} Since arrowing satisfies all of the requirements for a past practice under the Celanese test adopted by the majority, the city’s practice of arrowing constitutes an accepted past practice in this case. Under Article II of the CBA and pursuant to R.C. 4117.08 and R.C. 4117.10(A), arrowing, as an established past practice, does not violate the CBA. The arbitrator’s award to that effect draws its essence from the CBA and is not unlawful, arbitrary, or capricious. Findlay City School Dist. Bd. of Bdn. v. Findlay Edn. Assn. (1990), 49 Ohio St.3d 129, 551 N.E.2d 186.
{¶ 41} However, as correctly determined by the majority and the appellate court, the CBA does not specifically authorize arrowing. The arbitrator’s decision that it does authorize arrowing exceeded his authority. The trial court could properly vacate the arbitrator’s ruling for correction of that specific error.
{¶ 42} Because arrowing is an accepted and permitted past practice, there is no loophole to close by holding, as the majority does, that the CBA expressly prohibits arrowing. Arrowing is neither authorized nor prohibited by the CBA. Arrowing is permitted as a recognized long-standing past practice.
{¶ 43} Any change or limitation to the past practice of arrowing should come through collective bargaining, not judicial fiat. Indeed, the judicial activism of the majority threatens the United States Supreme Court’s long-recognized “industrial common law” in Ohio and ultimately may be detrimental to the protection of Ohio’s union workers in the future. The majority’s approach — that a long-standing past practice may be unilaterally nullified merely by one party’s belated attempt to prohibit or limit that practice during later collective bargaining — establishes a dangerous precedent that could haunt Ohio’s union workers by leading to the nullification of past practices that protect union workers. The past-practice doctrine has been successfully employed by union workers to *487protect their rights. See, e.g., Weston Paper & Mfg. Co. (1981), 76 Labor Arb. Reports 1273 (Bowles, Arb.) (union established a consistent past practice entitled to protection); Printing Industry of Metro. Washington, D.C. (1981), 77 Labor Arb. Reports 911 (Epstein, Arb.).
{¶ 44} Some of the matters which arbitrators have held to be the subject of a binding past practice include attending to personal matters during shift,9 funeral leave,10 severance pay,11 maternity leave,12 wash-up time,13 crew sizes,14 coffee breaks,15 lunch periods,16 shift preferences,17 seniority of foremen,18 jury duty pay,19 payment of union officials for time spent at arbitration hearings,20 and holiday pay for Saturdays.21
{¶ 45} Long-established past-practice rights of Ohio’s union workers will now be exposed to the dangers of future judicial nullification, instead of collective bargaining. Such judicial intervention unilaterally changes the parties’ bargaining position, which can work to the detriment of union workers in future past-practice cases. All management will have to do now to satisfy the majority’s lack-of-acceptance test is seek to negotiate a prohibition or limitation of an established past practice beneficial to workers during the next collective bargaining process. Simply put, if an established past practice that continued for 15 years without objection and 22 years without grievance can be judicially eviscer*488ated in this case, how can any other established past practice expect to survive judicial extermination? That is why modification or termination of accepted and long-established past practices is best left to the collective bargaining process, as correctly noted by the appellate court below in this case.
Joseph W. Diemert Jr. & Associates Co., L.P.A., Joseph W. Diemert Jr., Thomas M. Hanculak and Jeffrey J. Sokolowski, for appellant and cross-appellee. Duvin, Cahn & Hutton and Jon M. Dileno, for appellee and cross-appellant.{¶ 46} Even assuming arguendo that arrowing is not an established past practice in this case (which it is), the appellate court below was correct in ruling that the practice (1) is not expressly prohibited or limited by the CBA, (2) does not violate any state or local laws, and (3) is consistent with the city’s reservation of rights under Article II of the CBA. Therefore, the city has the right to engage in arrowing under the facts before this court. R.C. 4117.08 and 4117.10(A).
{¶ 47} For the reasons stated above, I would (1) affirm the arbitrator’s decision denying the grievance and the portion of the appellate court’s ruling consistent therewith, (2) affirm the appellate court’s ruling that the CBA does not expressly permit arrowing and vacating the arbitrator’s award as to that specific issue, (3) affirm the appellate court’s ruling that the trial court did not have legal authority to issue a cease-and-desist order, and (4) reverse the remaining lower court’s rulings to the extent inconsistent herewith.
Lundberg Stratton, J., concurs in the foregoing opinion.. The city argues that the practice of arrowing was a practice affecting “hours of work” at the time Section (B)(7), Article IX of the CBA was negotiated. However, Article IX deals with vacations, not overtime or shift changes.
. See, also, Arkansas Power & Light Co. (1980), 81-1 Labor Arb. Awards ¶ 8039, 3178, 3181 (Sisk, Arb.); Pacific S.W. Airlines (1983), 83-2 Labor Arb. Awards ¶ 8474, 5111, 5113 (Richman, Arb.).
. The standards for determining the existence of a past practice have also been stated as including consistency (an ongoing application without numerous exceptions or contradictions) and repetition (application over a period of time from which a consistent pattern of behavior emerges). Hill & Sinieropi, Management Rights: A Legal and Arbitral Analysis (1986) 23, citing Mittenthal, Past Practice and the Administration of Collective Bargaining Agreements, Proceedings of the 14th Annual Meeting of NAA (BNA 1961) 32-33, also printed in (1961) 59 Mich.L.Rev. 1017,1019. The city’s practice of arrowing satisfies both the consistency and repetition standards.
. See, also, Eau Claire Cty. (1981), 76 Labor Arb. Reports 333, 335 (McCrary, Arb.) (“the parties will be presumed to have been aware of the instant practice as bargaining for the current agreement took place in the context of the practice. In addition, due to the parties’ awareness of the instant practice and the County’s failure to repudiate the practice during the negotiations, it is reasonable to conclude that the parties intended for the practice to continue in force”).
. Likewise, arbitrator Marvin Feldman, in Teledyne Monarch Rubber (1980), 75 Labor Arb. Reports 963, ruled that management had the right to assign management personnel to reset microprocessor equipment where in the past the union failed to challenge that practice by grievance. His reasoning is particularly instructive: “It might be further noted that the bargaining unit had never grieved for such work during their entire course of bargaining history at the facility, which dates back some eight years at the time of hearing and which had been accomplished, according to Company testimony, over a thousand times by management personnel. Thus it appears that the bargaining unit, while it may choose to police the contract of collective bargaining as it sees fit from time to time, cannot waive a right forever and then attempt to grieve one workload when the workload has been accomplished a thousand times at least prior without protest. * * * [F]ailure of the bargaining unit to protest such activity as it was occasioned throughout the course of years at the facility leads this arbitrator to believe that as a matter of fact the bargaining unit realized over that period of years that they as a matter of fact had no right to the workload which is grieved in this particular matter at this particular time.” Id. at 965.
. Reno v. Reno Fire Dept. Adm. Assn. (1995), 111 Nev. 1004, 899 P.2d 1115.
. Commercial Motor Freight, Inc. (1960), 34 Labor Arb. Reports 592 (Stouffer, Arb.).
. Jacob Ruppert (1960), 35 Labor Arb. Reports 503 (Turkus, Arb.).
. Northland Greyhound Lines, Inc. (1954), 23 Labor Arb. Reports 277 (Levinson, Arb.).
. Goodyear Tire & Rubber Co. (1960), 35 Labor Arb. Reports 929 (Killingsworth, Arb.); Internatl. Harvester Co. (1953), 20 Labor Arb. Reports 276 (Wirtz, Arb.).
. Southwest Steel Corp. (1962), 38 Labor Arb. Reports 344 (Duff, Arb.); United States Steel Corp. (1959), 33 Labor Arb. Reports 394 (Garrett, Arb.).
. Cushmans Sons, Inc. (1961), 37 Labor Arb. Reports 381 (Scheiber, Arb.); Ingalls Iron Works Co., Inc. (1959), 32 Labor Arb. Reports 960 (Reid, Arb.).
. Dayton Steel Foundry Co. (1958), 30 Labor Arb. Reports 35 (Wagner, Arb.); E.W. Bliss Co. (1955), 24 Labor Arb. Reports 614 (Dworkin, Arb.).
. Internatl. Minerals & Chem. Corp. (1960), 36 Labor Arb. Reports 92 (Sanders, Arb.).
. Borg-Wamer Corp. (-1961), 36 Labor Arb. Reports 691 (Mishne, Arb.).
. Kelsey-Hayes Co. (1961), 37 Labor Arb. Reports 375 (Gill, Arb.).
. Gen. Controls Co. (1958), 31 Labor Arb. Reports 240 (Jones, Arb.).
. Am. Can Co. (1959), 33 Labor Arb. Reports 809 (Bothwell, Arb.).