BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 245 UNITED FOOD AND COMMERCIAL
INTERNATIONAL UNION, AFL-CIO &
DEAN PICKLE & SPECIALTY PRODUCTS
Mr. Eugene L. Krull, Representative, Local 245 United Food &
Commercial Workers International Union, AFL-CIO & CLC, West 2620 Rock Road,
Appleton, Wisconsin 54915, appearing on behalf of the Union.
Schiff, Hardin & Waite, by Attorney Henry W. Sledz, Jr., 6600
Sears Tower, Chicago, Illinois 60606, appearing on behalf of Dean Pickle & Specialty
Local 245 United Food & Commercial Workers International Union, AFL-CIO
hereafter Union, and Dean Pickle & Specialty Products Company, hereafter Employer
are parties to a collective bargaining agreement that provides for the final and binding
grievances arising thereunder. The Union requested, and the Employer concurred, in the
of a Commission staff arbitrator to resolve a pending grievance. The undersigned was so
on July 8, 1999. The hearing was not transcribed. The record was closed on September 28,
upon receipt of post-hearing written argument.
The parties stipulated to the following statement of the issue:
Did the Company violate the collective bargaining agreement by
not offering voluntary off-day
work to the Grievants on February 27, March 1, March 22 and March 27, 1999?
If so, what is the appropriate remedy?
ARTICLE 1. INTENT
The general purpose of this Agreement is in
the mutual interest of the employer and employee
to provide for the operation of the Green Bay Plant of the Dean Pickle and Specialty
Company (other than as respects receiving and handling crops as hereinafter excepted) under
which will further to the fullest extent possible the safety and welfare of the employees,
operation, quality and quantity of output, elimination of waste, cleanliness of plant and
property. It is recognized by this Agreement to be the duty of the Company and the
cooperate fully, individually and collectively for the advancement of said conditions.
. . .
MANAGEMENT RIGHTS CLAUSE
The right to hire, promote, discharge or
discipline for cause, to maintain reasonable discipline and
efficiency of employees, is the responsibility of the Company. In addition, the products to
manufactured, the location of plants, the schedule of production, the methods, processes and
of manufacturing are solely and exclusively the responsibility of the Company. The
at any time, employ a person in the plant who is a bonafide (sic) Management Trainee
management position, but who is not intended to remain permanently in the plant; provided,
that the employment of such trainee shall not cause a lay-off (sic) of any regular employee
such Management Trainee displace regular employees. Such Management Trainee shall not
required to join the Union. There shall be no Management Trainees working in the plant if
a regular employee on lay-off. (sic)
. . .
ARTICLE 16. OVERTIME
Section 1. Except in cases of
emergency, no employee other than weekly employees shall be
required to work on the following days: Sunday, New Year's, Memorial Day, Independence
Labor Day, Thanksgiving, Day after Thanksgiving, Christmas Eve, Christmas Day and Good
Section 2. Whenever the
company shall consider it necessary, the Company can provide
for a six day work week (six day week consisting of Monday through Saturday). Employees
may be required to work on their scheduled off
day(s), except an employee will not be
forced to work more than eleven (11) of his/her scheduled
days off during the calendar year, and the employee will not be forced to work his/her
off more than seven (7) weeks in a row; however, the Labor Day weekend is optional. The
Company's production requirements will dictate whether or not the plant will operate. If an
employee would like the Labor Day weekend off, it will be the employee's responsibility to
the time off, at least two weeks in advance, and the Company will reply within one week. If
necessary, there will be restrictions as to the number of employees from the same department
will be granted the Labor Day weekend off. Seniority will decide.
Section 3. No employee, other than
weekly employees, except when a six day work week is
in effect, or in cases of emergency, shall be required to work on Saturday; provided,
any employee may, at his/her option, work on Saturday when there is work to do and the
requests him/her to work at his/her regular time rate in order to complete his/her maximum
regular employment for such week. Employees working on Sundays or on any of the
holidays, except weekly employees, shall be compensated at the rate of time and one-half.
When employees, other than weekly employees, work on Saturday because of an
emergency or mandatory six day work week, they shall be compensated at the rate of time
and one-half, but when working on Saturday voluntarily for the purpose of completing their
for such week, they shall be compensated at their regular hourly rate.
. . .
The work week shall be forty (40) hours per week. The normal working day shall
be eight (8) hours per day. One half hour shall be allowed for dinner. Time and one-half
shall be paid
for all hours worked over eight (8) hours in any one day or over forty (40) hours in any one
First shift production work shall commence no earlier than 5:00 a.m. and not later than 8:00
with the understanding that the main workforce will start no earlier than 6:00 a.m., and the
for start up will start no earlier than 5:00 a.m., unless other start times are mutually
between the Company and the Union.
Section 2. It
is agreed that there shall be no split hours in any one work day, but that work shall
Section 3. Whenever the Company
shall consider it necessary, the Company can provide for
Whenever the Company shall consider it necessary, the Company can provide for
specialty shifts. (Class rate Article 8, Section 1 25) for the following:
a. Pickle Process
b. Pourables/Hoffman House
. . .
ARTICLE 30. FOUR
DAY/TEN HOUR SCHEDULE
Section 1. Four Day/Ten Hour Option:
The Company shall have the right to
schedule the plant or any portion of the plant on a four (4)
day/ten (10) hour schedule upon two (2) weeks advance notice to the Union. Such four (4)
schedule shall be any four (4) consecutive days during Monday through Friday. In such four
day/ten (10) hour schedule, the contract shall be modified to reflect that the following shall
employees who are scheduled on a four (4) day/ten (10) hour schedule:
Article 10 Holiday
Eight (8) hours pay shall be ten (10) hours
Eight (8) hours shall be ten (10) hours.
Article 15 Vacations
Add the following:
Employees who select one (1) week of
vacation to be taken on a daily basis and who work on
both a five (5) day/eight (8) hour schedule and a four (4) day/ten (10) hour schedule during
shall not receive more than forty (40) hours (44 hours for employees hired prior to October
pay for that one (1) week of split vacation (i.e. If the employee is on a four (4) day/ten (10)
schedule and takes three (3) days of vacation and receives thirty (30) hours of vacation pay
goes to a five (5) day/eight (8) hour schedule, that employee will have only ten (10) hours of
pay remaining for his/her split week of vacation. He/she may take his/her remaining
vacation as two
(2) separate days off, receiving eight (8) hours pay for one (1) day and two (2) hours pay for
other day; or he/she may take the one (1) day off as vacation and receive eight (8) hours pay
to be paid the remaining two (2) hours in lieu of actually taking the day off [Note: In
example will be adjusted for employees hired prior to October 30, 1997, to reflect that those
employees are eligible for 44 hours per week.]). An employee
who works a four (4) day/ten (10)
hour schedule throughout the year and who chooses to select one (1) week of vacation to be
on a daily basis, shall be entitled to only four (4) days of time off for that week.
Article 18 Working
This article shall be modified to reflect that
time and one half shall be paid for all hours worked
over ten (10) hours in any one day (for employees on a four (4) day/ten (10) hour schedule).
Article 18, Section 6
Change the last sentence to reflect five (5)
hours rather than four (4) hours.
. . .
In December of 1998, the Company advised the Union that it would implement a
ten-hour shift schedule. The four-day, ten-hour shift schedule was implemented on January
Under this schedule, production lines were operated Tuesday through Friday.
On Saturday, February 27; Monday, March 1; Monday, March 22; and
Saturday, March 27,
1999, the Company scheduled a fifth production day of ten hours. The Company did not ask
Brier and Denise Fassbender, hereafter the Grievants, to work on any of these production
all times material hereto, each of the Grievants had a medical restriction that limited her
work to eight
hours per day.
On March, 1999, the Grievants grieved the failure of the Company to offer them
of work on each "fifth day" of production. Plant Manager Dennis Bentley denied the
stating, inter alia, that both employes were on medical restrictions
of not more than 8 hours per day;
that the Company had scheduled 10 hour shifts on each "fifth day" of production; that the
were not physically able to work the 10 hour shifts; and that, when the Company schedules
production on an off day, the Company schedules the proper amount of crew for that
Thereafter, the grievances were scheduled for arbitration.
POSITIONS OF THE PARTIES
Article 16, Overtime, Sections 3 and 4, allow for employes to work at their regular
enable them to complete their maximum hours or regular employment for a week. Article
Working Hours, Section 1, states that the workweek shall be forty (40) hours per week.
The Company claims that it must be cost competitive. The Company, however,
operate the fifth day of production with all employes being paid overtime, rather than to
work to the Grievants, who would have been paid straight time.
During the regularly scheduled production days, the Grievants covered the ten-hour
splitting their shifts. The testimony of the Local Union President demonstrates that, on
1999, two employes who were scheduled for production failed to show up for work and the
production line was operated successfully. The fifth day of production could run efficiently
two Grievants working eight-hour split shifts to provide ten-hour coverage.
Prior to the start of the four day, ten hour production schedule, the Local Union
agreed that the Company would not have to make special accommodations for the Grievants.
record demonstrates, there was no discussion concerning what would happen if the Company
scheduled a fifth day of production. The Company allowed another employe with an
medical restriction to work on some of the fifth days of production.
The Company should have asked the Grievants to work on the fifth days of
grievances should be sustained and the Grievants awarded the monies owed them.
The Union bears the burden of proof to establish that the Company's conduct violated
specific provision of the contract. If the Union cannot establish such a violation by a
of the evidence, the grievances must be denied.
Articles 16 and 18 do not create a guarantee of 40 hours of work per week per
conclusion is buttressed by the evidence of the conversation between Froberg and Fye, in
Froberg was advised that the contract did not create a 40 hour guarantee, and by the fact that
grievance was filed at the time that the four employes with medical restrictions were
scheduled to work thirty-two hours per week.
Management has the right to schedule work in a manner designed to optimize plant
The contract does not require the assignment of regular work or overtime work by seniority.
The Company has articulated legitimate and sound business reasons for not offering
day work to the Grievants, which reasons remain factually unrebutted by the Union. The
explained why it could accommodate the Grievants' medical restrictions on normal
but could not do so for off day work.
Another employe on medical restriction was offered work on an off day because less
full ten-hour shift of work was available. When the available work was a full ten-hour shift,
employe was not offered work. The Company has acted consistently and fairly. Arbitrators
rejected the proposition that an employer must offer available work to an employe who
to medical restrictions, adequately complete all of the available work.
Historical production standards are based upon 85% of maximum production
15% "discount" reflects production lost to breakdowns, bad product, employe absences, and
changes. The fact that, on March 1, 1999, the production line ran smoothly, does not negate
validity of the Company's scheduling policies.
The Union has failed to demonstrate that the labor agreement requires the Company
available off-day work to the Grievants. The grievances must be denied.
The Union relies upon Article 18, Section 1, of the parties' collective bargaining
to argue that the Grievants are entitled to work forty hours per week. Article 18, Section 1,
in relevant part, that the "work week shall be forty (40) hours per week."
At all times material hereto, the Company has provided a forty-hour workweek,
i.e., four days
of ten-hour shift. Article 30 of the collective bargaining agreement provides the Company
right to establish such a workweek and the Union does not dispute that the Company has the
to establish such a workweek.
At all times material hereto, the Grievants have been subject to a medical restriction
their work to no more than eight hours per day. Prior to the implementation of the
schedule, Union and Company representatives discussed the scheduling of employes that had
restrictions that limited work to no more than eight hours per day.
Plant Superintendent Brad Froberg and Union President Al Fye participated in these
discussions. Their testimony establishes that the parties mutually understood that, under a
four-day/ten hour work schedule, the medically restricted employes were not guaranteed a
workweek and that the Company could schedule the medically restricted employes to work a
four-day/eight hour schedule. Given this understanding, it would not be reasonable to
18, Section 1, as providing the Grievants with a contractual right to work forty hours per
As the Union argues, the disputed work was performed on a fifth day of production
falls outside of the forty-hour workweek established by the Company. As the Union
further argues, the record does not demonstrate that the Company and the Union had
concerning the right of the medically restricted employes to work on a fifth day of
Relying upon Sections 3 and 4 of Article 16, Overtime, the
Union argues that the Grievants
have a right to work on the fifth day of production, at their regular hourly rate, in order to
a forty-hour workweek. Under Section 3, "any employe may, at his/her option, work on
when there is work to do and the Company requests him/her to work at his/her regular time
order to complete his/her maximum hours or regular employment for such week." Section 4
that employes that perform such Saturday work will be paid at their regular hourly rate.
The fifth days of production at issue occurred on February 27, March 1, March 22,
27, 1999. Given the fact that only two of these days were Saturdays, the language of Section
its face, has limited applicability. Additionally, as set forth in the plain language of Section
employe's right to work on Saturday for the purpose of completing the employe's "maximum
or regular employment for such week" is not unconditional, but rather, the Company must
the employe to work.
Article 16, Section 3, does not state that the Company must "request" the most senior
employe to work. Nor does this language contain any other restriction on the right of the
to determine whom it will request to work. Absent such a restriction, the decision to offer,
or to not
offer, Saturday work to the Grievants is within the discretion of the Company.
As the Union argues, on some of the fifth days of production, the Company offered
ten hours of work to a lab employe who had the same medical restriction as the Grievants.
collective bargaining agreement does not require the Company to provide the Grievants with
work opportunities as this lab employe. Moreover, the Company's decision to run a ten-hour
on the production line, but not in the lab, is consistent with the Company's Article 4,
Rights, to schedule production and determine the "methods, processes, and means
manufacturing." The Company did not abuse its management discretion when it offered fifth
production work to the lab employe and did not offer fifth day of production work to the
It may be as the Union argues, that the Company was in error when it determined
that it could
not accommodate the Grievants' eight-hour work restrictions and meet its fifth day of
needs in the most efficient manner. Inasmuch as the record fails to demonstrate that the
determination was made in bad faith or unreasonable per se,
the Company's determination that it
could not accommodate the Grievants' medical restrictions is not an abuse of management
As set forth in the Company's response to the grievances, the Company did not
Grievants to work on February 27, March 1, March 22 and March 27, 1999, because the
were not physically capable of working a ten-hour shift. Neither the decision to schedule a
shift, nor the decision to staff this shift with employes that were physically capable of
working a ten-hour shift, is an abuse of the Company's management discretion.
In summary, the contract language relied upon by the Union does not provide the
with a contractual right to work on February 27, March 1, March 22 and March 27, 1999.
Accordingly, the grievance has been denied.
Based upon the above and the foregoing, and the record as a whole, the undersigned
1. The Company did not violate the collective bargaining agreement by
not offering voluntary
off-day work to the Grievants on February 27, March 1, March 22 and March 27, 1999.
2. The grievance is denied and dismissed.
Dated at Madison, Wisconsin, this 14th day of October, 1999.
Coleen A. Burns, Arbitrator