western sugar award pdf

7/25/2019 Western Sugar Award PDF

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FREDERICK P. KESSLER

ARBITRATOR

INTERNATIONA BROTHERHOOD OF

TEAMSTERS LOCAL UNION 190

and

WESTERN SUGAR COOPERATIVE

A. INTRODUCTION

DECISION

FMCS 140820-58415-7

On October 28, 2014, this Arbitrator was advised that he had

been chosen to hear the grievance dispute between Teamsters Local

190 (hereinafter referred to as the Union ) and the Western Sugar

Cooperative (hereinafter referred to as the Company ) regarding an

alleged contract violation by the Company when it laid off three

employees. A hearing was scheduled for May 21, 2015, at 9:00 a.m.

in Billings, Montana.

The hearing began at 8:50 a.m. Witnesses testified and exhibits

were submitted in evidence. The hearing adjourned at 3:25 p.m. The

parties agreed to submit briefs. The final brief was received by the

Arbitrator on July 16, 2015.

B.

APPEARENCES

The Employer appeared by Attorney Hope K. Abramov, of

Thompson Coburn LLP. She called as witnesses Factory Manager Jeff

Anderson. Also present was Dave Devore.

The Union appeared by Attorney Vicki Nelson McDonald, of

the McDonald Law Firm. She was assisted by Business

Representative Wayne Erhart who also testified. She also called as

witnesses Greta Niles, Dennis Cass, Sandy Nava and Bob Hermann

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C

CONTRACT PROVISIONS AND RULES OF CONDUCT

The Collective Bargaining Agreement between the Union and

the Employer for the period of June 1, 2013 to May 31, 2016 provides

as follows:

ARTICLE 2

DEFINITIONS

A) By campaign Season is meant the period during which

beets are sliced or sugar is produced at the beet mills, and

includes test-out and laying-by period, which is not to exceed

five (5) days at the start prior to slicing beets and no less than

three (3) after the last beet is sliced.

B) A campaign season may be declared at the packaging

stations during the normal Intercampaign season if such

operation goes on a Universal Work Week. The Company

agrees that if a Universal Work Week is to be implemented, the

Union will be given three days notice.

C) For the beet mills Intercampaign Season is defined as

the period of the year not defined above as the campaign

season.

D) a year-round employee is one who shall have worked

1680 hours (including overtime hours) or more during the 26

two-week payroll periods prior to September 1 of each year. An

employee who attains year-round status as provided above,

shall retain such status and be eligible for benefits as provided

by this Agreement for the 12 month period commencing

October 1.

ARTICLE 16

RIGHTS OF MANAGEMENT

A) All the functions, rights, powers and authority which the

Company has not specifically abridged, delegated or modified

by this Agreement are recognized by the Union as being

retained by the Company.

B) It is agreed that the above recited management rights are

not subject to the grievance and/or arbitration procedures set

forth in Articles 17 and 18 hereof unless in the exercise of said

rights the Company has violated a specific term or provision of

one or more other Article of the Agreement.

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ARTICLE 22

INTERCAMPAIGN CREW SELECTION

A) The Term seniority, as applied in his Article, shall be

interpreted to mean seniority based upon the Factory Seniority

List.

B) An employee attains a seniority date and is added to the

Factory Seniority list when the employee attains year-around

status as defined in Article 2 Definitions. An employee's

seniority date for this purpose shall be their most recent date of

hire prior to obtaining year-round status.

C) A year-round employee with five (5) or more years of

seniority retains his/her seniority date and remains on the

Factory Seniority list if recalled within fifteen months.

D) A year-round employee with less than five (5) years of

seniority retains his/her seniority date and remains on the

Factory Seniority List if recalled by August 15.

E) The Employer shall post the respective Factory Seniority

Lists on the bulletin board at each factory within thirty (30)

days after the end of the campaign.

F) Year-round employees with five (5) or years of seniority

shall be laid-off and/or recalled by seniority, and in accordance

with section (h) below.

U) Year-round employees with less than five (5) or years of

seniority shall be laid-off and/or recalled based on experience,

skill, ability, knowledge and training as applied to the

Intercampaign work requirements and the protection of critical

skills. Should the factors of experience, skill, ability,

knowledge and training be relatively equal, length of

continuous service shall prevail.

H) Selection of the employees to be carried on the Inter-

campaign Holdover Crew shall be according to the provisions

of paragraphs (f) and (g) of this Article provided those

provisions provide the Employer with the necessary skills and

abilities to perform the work to be conducted during the Inter-

campaign period and the protection of critical skills. Work to be

conducted during the Intercampaign period shall be determined

by the Employer. For the purposes of providing the Employer

with the necessary skills and abilities to perform the work to be

conducted during the Intercampaign and/or Campaign seasons,

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the Employer reserves the right to retain up to three (3) tech-

nician employees out of seniority order.

I) Seven days prior to the end of the Campaign period, the

Employer shall prepare a list of those employees who will be

held over and discuss it with the Union Committee before

posting it on the Company bulletin board.

J) The Company agrees to give seven (7) calendar days

notice of layoff to year-round employees, if practicable.

K) If an arbitration is held concerning the Employer's

determinations, such arbitrator shall compare relative experience,

skill, ability, knowledge and training of the involved employees

to determine if the decision was arbitrarily made.

ARTICLE 23

HIRING FORMER CAMPAIGN EMPLOYEES

A) A former campaign employee will be eligible to be

rehired either during campaign or Intercampaign at the last

factory where he or she worked provided:

Should there be more former campaign employees than

available jobs at the factory, such available jobs will be

assigned on the basis of experience, skill, ability, knowledge,

and training as applied to the campaign work. Should the

factors of experience, skill, ability, knowledge and training be

relatively equal, number of consecutive campaign seasons

worked shall prevail.

B) The Union agrees that no employment relationship

exists between a former campaign employee and the Company

from the date of termination of his/her employment until such

time as the employee may be re-hired and again performs work

for the Company;

C) A former campaign employee will be rehired during

Intercampaign prior to new employees being hired provided:

1) The former employee possesses the necessary

skills, knowledge, ability, training, and experience to

perform the available work, and

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2) The former employee applies for consideration

for such Intercampaign work in writing to the Factory

Manager. The employee is responsible for providing the

Company with his/her phone number and to update the

Company as to any changes thereto, and

3) The former employee must have satisfactorily

completed the last campaign, and

4) The former employee reports ready for work at

the designated time, date, and place.

D.

STATEMENT OF FACTS

The Employer, Western Sugar Cooperative, produces refined sugar

from beets that it plants, harvests and processes at it facility in Billings,

Montana. The beets are planted in early spring. The Employer doubles its

workforce in September when beets are harvested. Then it begins a period of

time which it refers to as the Campaign which lasts for four to five

months, operating around the clock for seven days a week.

The remainder of the year is referred to by the Employer as the

Intercampaign in which the workforce ships the finished sugar beets to

clients and maintains the equipment at the plant. An employee who works

1680 hours becomes a year-rounder entitled to sick leave, vacation and

retirement benefits.

Greta Niles worked for the Company for ten campaigns. For the past

four years she worked as a Lead Lab Technician. She was laid off at the end

of the Campaign on February 19, 2014. She was recalled to work on March

17th

as a warehouse sanitation worker and laid off on July 16, 2014, working

during that Campaign only 1571.5 hours.

Dennis Cass had worked for the Company since December, 2007. He

was hired as a Sugar End Helper on September 3, 2013 and laid off on

February 20, 2014. He was recalled on March

13th

as a tote helper. He was

laid off on July 15, 2015 after working 1662 hours during the campaign, just

short of what he needed to be qualified as a year-rounder .

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The Company hired Eddie Webster and John Fisher as warehouse

extras on July 23, 2014 and hired Lany Lynde as a bin digger on August 4,

2014. None of them had more campaign years or skill sets than Niles or

Cass. Niles and Cass both had the skills necessary to perform either job.

On July 21, the Union filed grievances alleging the layoff was

inappropriate. The Company acknowledged that both Niles and Cass were

laid off in order to keep them from obtaining the 1680 hours need to be

reclassified as year-round employees. The grievance was not resolved and

was submitted to arbitration,

E.

QUESTION IN DISPUTE

Did the Company violate the Collective Bargaining Agreement

by laying off the grievants? If so, what is the appropriate remedy?

F. POSITION OF THE EMPLOYER

The Company has the unbridled discretion to lay its seasonal

employees. There is no contractual provision that limits the authority

of the Company. The language of the Collective Bargaining

Agreement is unambiguous. Outside evidence cannot be used to

interpret the provisions of the Agreement.

The Article 16 of the Collective Bargaining Agreement gives

management the right to adjust and control the employee headcount.

No other limitation exists that modif' management's control as to the

number of seasonal workers that it can employ.

The Agreement provides that employees with five or more

years of seniority will be laid off and recalled based on seniority.

Those employees with less than five years will be laid off and recalled

based on experience, skill, ability, knowledge and training based on

the needs of the Company and the protections of certain critical skills.

There is no provision in the Agreement that limits the ability of the

Company to lay off seasonal employees. The Union's witness

acknowledged that there is nothing in the Labor Agreement that

prevents it from using hours worked in making their selections.

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Article 23 restricts the Company's right to lay off year-round

employees with five years experience or more only on the basis of

seniority. Year-round employees with less the five years seniority may

be laid off based on experience, skill, ability, knowledge and training.

There are no limits in the Labor Agreement on the Company's ability

to lay off seasonal employees.

The Company argues that even if it failed to exercise its right to

use its discretion in laying off seasonal employees, its inaction did not

constitute a waiver of its authority under the Labor Agreement. The

failure to exercise a right, even after a long period, does not result in a

waiver of the right.

Even if past practice evidence were admitted, there is no

consistent practice, so at best the evidence is equivocal. Past practice

is admitted only if the language in the Agreement is equivocal. If it

was not specifically abridged elsewhere in the Agreement, it is

protected by the language of Article 16. There has been no agreed

upon practice between the Company and the Union outside of the

Agreement.

A claim of a single conversation with a former Manager of the

Company is not sufficient to show that a past practice had been

established. It is not adequate to show a clear and contiguous

application of the Agreement.

The Union submitted two information requests. They were

untimely and dilatory. They constituted discovery requests in an

arbitration process which does not provide a right for general

discovery. The Union requested information as to who replaced the

grievants. The Union contends the grievants were not replaced. The

Company did advise the Union that Lynde, Fisher and Webster were

hired after the grievants were laid off. The Union also eventually

found out the names of two employees who previously did not

become year-round employees, Fink and Bums, because they did not

work the needed 1680 hours.

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G.

POSITION OF THE UNION

The Collective Bargaining Agreement prohibits the Company

form laying off the grievants for the purpose of preventing their

eligibility for year-round employment. The language specifies that an

employee will be rehired if they meet the criteria outlined in the

provision.

The Company's decision to rehire one day and then to layoff

the employee a short time later is an act of bad faith. Every contract

imposes on the parties a duty of good faith and fair dealing in the

enforcement of a contract. A party may not accept the benefit of a

contract (the workers labor) then attempt to use the same contract to

destroy or injure the other party who provided the benefit.

The language of the contract is clear and unambiguous. Former

employees who have been hired will only be laid off when the work

for which they have the necessary skills and ability ceases to exist, as

has been the practice for decades. Such a past practice may not be

unilaterally changed because it is not explicitly stated and included in

the express terms of the Agreement.

The Company only changed the practice of not laying off

employees whose skills were still needed when Jeff Anderson joined

the Company. That is the first time the Company started to lay off

employees when they were close to the 1680 hours of employ-ment.

Prior to that, employees were laid off only when there was lack of

work. To allow the Company to lay off employees whose skills are

still needed solely to keep the employee from being able to become a

year-round employee make meaningless all of the year-round benefits

agreed in the Labor Agreement.

The work performed by both Niles and Cass has continued to

be done by the new hires, who will cost the Company less money than

if they had not been replaced. The Company failed to provide a

witness, Ray Bode, who was the manager of the plant at that time,

who would have been able to answer the question prior practice. The

Union could have brought an unfair labor practice charge, but the

process would have resulted in a substantial delay to the detriment of

Niles and Cass.

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The Company offered information regarding other employees

who were involved in a plant in Lovell, in which union membership is

not mandatory. The Lovell plant is not similar to Bozeman in work

force cohesion or in bargaining history.

The Management Rights clause of the Labor Agreement does

not give management the authority to layoff employees for the express

purpose of depriving them of year-round status. The express language

of Article 23 specifically protects the rights of laid off employees.

Any right that management claims under Article 16 was long abridged

by the past practices of the Company.

The Company's interpretation of the Labor Agreement, making

the 1680 work hour requirement meaningless was a violation of the

duty of good faith and fair dealing that is part of the collective

bargaining process and must be denied.

H. DECISION

This arbitration is the result of a grievance filed because two

employees, Niles and Cass, were laid off in order to keep them from

obtaining the 1680 hours need to be reclassified as year-round

employees. Two other former employees, who had worked in fewer

previous campaign, were hired shortly after Niles and Cass were laid

off, although Niles and Cass were sufficiently skilled and experienced

to do the jobs for which others had been hired.

The Labor Agreement creates three classes of employees whose

rights and benefits vary according to different factors. The highest

rank is an employee who has obtained year-round status by working

1680 hours and has been a year-round employee for five or more

years. Such employees shall be laid-off and/or recalled by seniority.

An employee who has been year-round for less than five years

shall be laid-off and/or recalled based on experience, skill, ability,

knowledge and training as applied to the Intercampaign work

requirements and the protection of critical skills.

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The third classification of employees is those who were former

campaign employee. They are eligible to be rehired either during

campaign or Intercampaign at the last factory where they worked. If

there were more former campaign employees than available jobs at

the factory, the available jobs will be assigned on the basis of

experience, skill, ability, knowledge, and training as applied to the

campaign work. If the factors of experience, skill, ability, knowledge

and training are relatively equal among the employees, the number of

consecutive campaign seasons worked by an employee will determine

the hiring decision.

The Labor Agreement also provides that no employment

relationship exists between a former campaign employee and the

Company from the date of termination of his/her employment until

such time as the employee may be rehired and again performs work

for the Company.

The Union argued that a past practice exists, that prevents the

layoff of one seasonal employee and replacing him/her with another

seasonal employee, if work still exists in the plant which the laid off

employee was sufficiently skilled to perform. During the examination

of former Union Business Agent Joe Dyer he was asked the following

question by the Company's Attorney, Ms... Abramov:

Q

Show me where it specifically state that seasonal

employees must be laid off in a particular manner?

A

Again, I think if you go to Article 23 and to

Section C), it would then prohibit the layoff of a seasonal

---they are not called seasonal, they are called campaign

employees---could not be laid off if they were hired

under of the Intercampaign selection list on Article 22 by

a new employee hired off the street.

Q

So I understand that's how you would like to

interpret it. But that's not what it actually says, correct?

A

That's absolutely what it says and that is

absolutely the practice.

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Q

Tell me where it says in this contract what you just

said, show me where that is in this contract?

A

I believe that Section C) speaks for itself, in

Article 23, that basically prohibits the hiring of a new

employee once a campaign employee has been selected

by the employer under Article 22.

Q

Okay. So this provision is specifically about rehire,

correct?

A

That's correct.

Q

It does not state---the word layoff' is not included

in Section C) in any form, correct?

A

No,it'snot.

Q

There is no written Agreement either inside this

contract or outside the contract, that the Company may

not to lay off employees, if they are seasonal if work still

exists, correct?

A

There's no written agreements. There was a

practice.

The Company acknowledged that it kept track of the hours of

seasonal employees. The Human Resources Department of the

Company prepared weekJy reports that indicated the number of hours

a seasonal employee had worked. The Company felt that they need the

flexibility to control the headcount by limiting the number of hours,

which enables the Company to layoff seasonal employees, without

being encumbered by the restraints the Labor Agreement places on

laying off year-round employees. The Company acknowledged that it

kept track of employee hours and used that information to avoid

allowing an employee to become a year-round employee.

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When a clear and unambiguous provision exists in a labor

agreement, arbitrators generally refuse to consider evidence that is

inconsistent with the language of the agreement. In Peabody Coal Com-

pany River King Pit 6 and United Mine Workers of America District

12, Local 1148, 99 LA 390 Arbitrator Marvin J. Feldman wrote:

A past practice establishes a term of the contract generally

of a past practice may explain a gray area of the contract.

A past practice cannot create a term of the contract where

the term sought to a clear and unambiguous term of a

written nature which was entered into at arms length by the

parties and was executed by both parties.

The Union claims that former Factory Manager Ray Bode

acquiesced to a Union request not to lay off two employees in the past

constituted an enforceable past practice is not supported by evidence.

In Tube City IMS LLC and United Steel, Paper and Forestry,

Rubber, Manufacturing, Energy, Allied Industrial and Service

Workers international Union, Local 5652-19 133 LA 1070 Arbitrator

Gregory P. Szuter, addressing a dispute in which a company had

failed to use a clear contract right wrote as follows:

Arbitrators have routinely recognized that a past practice

will not eradicate other contract language. The failure of

the Employer, even over a long period of time, is not a

surrender of the right to start exercising such right

explicit in the Agreement.

Both Niles and Cass were seasonal employees of the Company.

The equities argue that they should have been allowed to work enough

additional hours to enable them to reach the year-round employment

and have the benefits of status.

In United Steelworkers of America (AFL-CIO, Local Union

No.4264 v. New Park Mining Company 273 F.2nd 352, the Court in

that case determined that a company did not actually

go out of

business, but merely decided to subcontract its work by

a leasing

arrangement, in order to end its labor agreement, prior to its expiration

date. Judge Murrah wrote as follows:

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We think this construction of a collective bargaining

contract ignores the covenant of good faith and fair

dealings which must inhere in every collective bargaining

contract if it is to serve its institutional purpose.

The actions of the Company to layoff Niles and Cass prior to

their achieving the 1680 hours of work specifically for the only

purpose of making them ineligible to become year-round employees

has the effect of violating the implied covenant in every contract of

good faith and fair dealing.

If this practice is upheld, it makes meaningless the provisions of

the Labor Agreement, which describes the process, which the parties

agreed, an employee could attain year-found status. Arbitration cannot

sanction an interpretation which makes a provision meaningless. Such

an interpretation destroys or injures the right of the other party to

receive the fruits of the contract...

iA

The grievance of the Union is granted. Niles and Cass are

awarded year-round status and the benefit resulting there from.

Dated this day of

29th

day of August,

2015

FREDERICK P. KESSLER

ARBITRATOR

FMCS # 2694

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