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Title: Hekman Furniture Company and Local No. 415FW, IUE, CWA, AFL-CIO
Date: January 11, 2003
Arbitrator: Stanley Michelstetter
Citation: 2003 NAC 105

BEFORE THE ARBITRATOR

______________________________________________
In the Matter of the Arbitration of a Dispute Between

HEKMAN FURNITURE COMPANY

and

LOCAL NO. 415FW, IUE, CWA, AFL-CIO

_______________________________________________
Appearances:

Donald Riger, Representative, appearing on behalf of the Union.

Varnum, Riddering, Schmidt & Howlett, LLP, Attorneys at Law, by Donald P. Lawless, appearing on behalf of the Company.  

ARBITRATION AWARD

Hekman Furniture Company, herein referred to as the "Company," and Local No. 415FW, IUE, CWA, AFL-CIO, herein referred to as the "Union," having jointly selected the Undersigned from a panel of arbitrators provided by the Federal Mediation and Conciliation Service as the impartial arbitrator to hear and decide the dispute specified below; and the Undersigned having held a hearing on October 27, 2002, in Grand Rapids, Michigan: and each party having filed post-hearing briefs, the last of which was received September 14,2002.[1]

ISSUES

The parties were unable to agree to a statement of the issues, but agreed that I might state them.  I state them as follows:   

1.  Did the Company violate Section 6.7 of the collective bargaining agreement by working some employees less than 40 hours in the weeks following the week of November 8, 2001?

2.  Did the Company fail to give the advance notification specified in Section 6.3 for overtime in the  last quarter of 2001?  

3.  If the answer to either question is “yes,” what is the appropriate remedy?

RELEVANT AGREEMENT PROVISIONS

“ . . . 

ARTICLE IV

Grievances

. . . 

SECTION 4.2

. . . 

d) . . . The decision of the arbitrator shall be final and binding on both parties.  The arbitrator shall not have the authority to add to, detract from or change the terms and conditions of this Agreement and shall only have the authority to interpret this Agreement for the purpose of settling grievances properly raised under the terms and conditions of the contract. . . . . 

. . . 

ARTICLE VI

Hours of Work and Overtime

. . . 

SECTION 6.3 

. . . 

Whenever possible, the Company will notify employees in writing by noon on Thursday of that week for Saturday overtime.  Whenever possible, the Company will notify employees at least twenty-four (24) hours prior to required scheduled overtime. 

Whenever possible, when it becomes necessary for the Company to cancel daily or scheduled overtime, the Company will notify affected employees by noon of the of the day on which the overtime is scheduled.  If not notified by noon, work will be provided for the affected employees.  If an employee requests to be excused from overtime and the supervisors concurs then the employee will be excused and the Company will have no obligation for overtime pay.  

. . . 

SECTION 6.7

In the event poor business conditions make it advisable in the Company’s judgment to reduce the workweek of the plant as a whole below forty (40) hours, but not below thirty-two (32) hours, for a period in excess of six (6) weeks, the Company will at the end of the six (6) week period endeavor, so far as practical in its judgment in the efficient operation of its business, to reduce the work force to maintain forty (40) hours for as many employees as practical.  

. . .

SECTION 8.7

It is understood and agreed that the Company reserves the right to determine when or if the entire plant may be shut down by May 1 of each year. 

If the plant is shut down for one week for vacation purposes the following will apply:

The week in which the Fourth of July falls (or is celebrated if it falls on a Monday) would be a week of vacation for all employees.  In addition, eligible employees will receive holiday pay for the Fourth of July.   The plant will shut down at the end of the shift on Thursday before the vacation week begins.  This means that employees will have that Friday plus the following week off for a vacation period, and they will receive their vacation pay plus one day’s pay for the holiday.  Those employees who qualify for additional vacation time off may elect to take the additional time off during the period July 1 through June 30.  Vacation time must be requested 24 hours in advance and whenever possible vacation time off will be requested at least thirty (30) days in advance and must be approved by the immediate supervisor.  Approval will be given on a first-come, first-serve basis, with no more than two (2) people from each department absent on vacation at any one time.  If more than two people request the same time off and the requests are made on the same day, seniority will prevail.  

. . . . “

FACTS

The Company is a manufacturer of fine residential and home office furnishings.  The Company has a production facility in Grand Rapids, Michigan (Kent County).  It also has a separate warehouse on Madison Street.  The Union represents production and maintenance employees at the Company’s Kent County facilities.  The parties have had a long standing collective bargaining relationship, although there has been a change in the management of the Company in recent years.  

The Company enjoyed strong demand for its products for many years.  In the beginning of 2001, the demand for its products weakened and the Company made a determination to reduce its labor force and reduce its production.   At that time the unit consisted of between 136 to 144 employees.  

On April 27, 2001, the Company elected to shut down the plant for a week of vacation as authorized under Section 8.7 of the Agreement.  The Company had not exercised that right in recent history.   

The business decline became pronounced by June, 2001.  The Company relied upon trade data which suggested that orders were likely to pick up by the end of the year.  The Company determined to layoff nine bargaining unit employees by plant-wide seniority on June 8.   The Company told the affected employees that it appeared that they might be recalled by the end of 2001.  

On July 17, the Company again laid off eleven members of the bargaining unit due lack of work.    This layoff was accomplished by seniority on a departmental basis because the Company determined that the application seniority on a plant-wide would leave it without essential skills in several departments.  

By August, the conditions remained the same.   Human Resources Manager Steve Airo, Vice President of Manufacturing Tom Van Tamelen, and Production Managers, Tom Annis and Chuck Zuidema met to discuss further reductions.   At this time, the foregoing management team reviewed the staffing model for the entire plant.   This staffing model has been in existence for many years prior to these circumstances.   This model indicated that a staff of 118 was necessary to run the plant to produce 88 pieces per day for four days.   Even were the plant to try to run fewer pieces per day over a five day period, they concluded the plant would not run “efficiently.”  They, therefore,  determined that they could not reduce the staff below the then current 111 members of the bargaining unit.  Some of the major factors affecting the management team’s decision were the fact that it had developed a new home office product line for which it had committed to ship products quickly[2].  It had a number of unfilled orders and it was also likely that it would have to produce samples.  Further, the management team expected that the Company’s orders would  increase after the industry trade show in October, in Highpoint, North Carolina.  

The management team shut down the entire plant for the Labor Day week of September 4th through September 7th, with the exception of some maintenance, shipping and housekeeping functions.    It notified employees of its intention to do so on and stated the basis for the action was the lack of work.  

On September 10, 2001, the Company notified all employees of its intention to shutdown the entire plant on the following Fridays, September 14, 21, 28, and October 5, because of the lack of work.    The Company shut down the entire plant on Friday, September 14.   On Thursday, September 19, it posted a notice before noon which identified the employees who would be required to work on the next day.  It required about five employees to work in the Mill Department, 14 to work on the first floor machine department, six to work in sub-assembly and the one employee who works in the Madison Street warehouse to work.    It posted a similar notice in that manner and had the following employee work for September 28, October 5:

Date
9/28




Department
Pack
Road Repair 
Mill 
Machine 
Subassembly  (First Floor)
Sanding 
Number Scheduled for Friday Work
5                                  110[3]
2 
5 
14
6
5
10/5




Rough Mill 
Machine 
Sanding  
Subassembly  (First Floor) 
Rub/Trim 
Road Repair 
5                                  113
14
5
6
5
2

[The plant was entirely shut down Friday, September 14, 26 employees worked on Friday September, 21.]

The events of September 11 had a devastating effect on the Company’s expected recovery.   Ordinarily, about 50,000 people attend the Highpoint trade show.   However, only about 25,000 attended the Highpoint show in October, 2001.   The Company received far fewer orders for good than it expected.   It did, however, have to produce samples of its new and existing products as it had planned to do.    On October 19, the Company again notified employees that the lack of work required that it shut down the plant on Friday, October 26, November 2, November 9, and November 16.  The Company again posted notices the Thursday before those scheduled days to have the following employees work on the following Fridays;  October 26, and November 2: 

Date
10/26




Department
Subassembly
Pack 
Rub & Trim 
Moulders 
Warehouse (a/k/a Shipping)
Receiving
Number Scheduled for Friday Work
6                                  113
5
5 
2
1
1
11/2 





Clean Booths
Unpacking Imports 
Moulders  
Subassembly 
Shipping 
Receiving
Road Repair
1                                  109
1
2
6
1
2
3

[Note: On Friday, November 9, and November 16, the plant was completely shut down with the possible exception of maintenance and shipping employees.   The Thanksgiving holiday occurred on November 22.  Friday November, 23 was a regularly scheduled holiday.]

On November 8, the Company provided another notice that it intended to shutdown the plant on Fridays for the remainder of the year.  They were November 30, December 7, 14, 21, and 28.   The Company ultimately shut the entire plant down in the Thanksgiving week of November 19- 23 and the period December 24 to January 2.    It provided notices by noon of the Thursday before the following dates as to which employee would work on the following Fridays,  November 30, December 7, December 14, December 21.   The employees who worked were as follows:

Date
11/30


Department
Machine
Sanding
Subassembly
Leather
Number Scheduled for Friday Work
14                                109
5
6
1
12/7 


Finish Floor Line
Rub & Trim
Pack
Road Repair
10                                107
5
5
2
12/14






Finish
Rub & Trim
Pack
Road Repair 
Cabinet Main Line
Machine
Sanding
Subassembly (First Floor) 
32                                107
5 
5
2
10
14
5
6
12/21






Finish 
Rub & Trim 
Pack 
Warehouse 
Machine 
Sanding 
Subassembly (First Floor) 
Maintenance 
32                                107
5
5
1
14
5
6
4

[The week of December 24-28 has two scheduled holidays December 24 and 25.  There was no Friday work.  Monday December 31 was a day of shutdown, January 1 was a holiday and the plant operated January 2, 3 and 4.]

The following is a summary of the overall shutdown history:

no.

1
2
3
4


5
6
7
8

9
10
11
12

13
week
9/3-7
9/10-14
9/17-21
9/24-28
10/1-5
10/8-12
10/15-19
10/22-26
10/29-11/2
11/5-9
11/12-16
11/19
11/26-30
12/3-7
12/10-14
12/17-21
12/24-28
12/31
hours worked
0
32
32
32
32
40
40
32
32
32
32
0
32
32
32
32
0
24
hours holiday
8










16




16
8
hours shut down
32 [shutdown week]
8
8
8
8
0
0
8
8
8
8
24
8
8
8
8
24
8

[The first column demonstrates how the above weeks are counted toward the six week period of Section 6.7.]

The management team did not hold another special meeting after the one in August, but did discuss plant staffing on an on-going basis in their regular daily meetings.   The management team never met with or discussed its staffing needs with the Union. 

Section 6.7 of the Agreement is a provision of long standing, dating from about 1978.  There has been some discussion of the meaning of the provisions in negotiations over the years, but nothing relatively recently.  Chief Steward Rick Ringersma was involved in some of those subsequent negotiations.  He testified that there were some discussions in which the parties recognized that even if the plant worked less than 40 hours a week, there might be some departments which would continue to operate 40 hours.   Those included shipping and receiving, maintenance and other essential work.   The Company never applied Section 6.7 before or operated on shortened hours plant wide. 

Ringersma also testified that when some employees were laid off in his department, Department 20,  they still got the work out by rearranging staff.  He said that during the above shortened work weeks there were many times that people in his department did not do productive work the full day.  Specifically, he stated that many were assigned to do make-work, like sweeping and throwing out old lumber.   He testified that employees Jeremy Zerbe, Rafael Gallardo who both had been recalled to work in approximately October, 2001,[4]  were not necessary and could have been laid off without affecting the productivity of the department.  He also testified that there were temporary employees in his department who worked one or two weeks.[5] 

He also testified that employees who were assigned “overtime” were given less than 24 hours notice as provided in the Agreement.  It is unclear as to whether this referred to working the Fridays or actually more than 8/40 hours.   His testimony indicated that he included Fridays in the term.  

J.P. Nicholas works in Department 10 as a Class A mill operator.   He testified that during the above period, Department 10 employees were not working productively all of the time.  He stated that  recalled employees Martha Rodriquez Lopez and Nemecio Cortez Garcia were not necessary to the operation.  He also said that the Company used temporary help in his department during the same period.   He said there were many times employees in his department were assigned make-work such as excessive sweeping.  

Dana Smith works in Department 35 which does final inspection of the products.  She is also third floor steward.   She stated that employee Rafael Vega was not necessary and he could have been laid off.   She said that employees were doing make-work of excessive sweeping and excessively folding rags.   She also said that the Company employed temporary workers during this period.  This was disputed by the entire management team.  

POSITIONS OF THE PARTIES

            The Union takes the position that the Employer violated Article VI, Section 6.7 by reducing the work week below 40 hours for more than 6 weeks.  Specifically, it shut down the plant in the weeks of September 10, 17, 24, October 1, October 22, and October 29, 2001.  Those weeks constitute the 6 week period.  It then reduced the work week in the week of November 5 and continued to do so in the weeks of November 12, 26, December 3, 10, and 17.   The Union notes that a major part of the difference between the parties is an issue as to the correct interpretation of Section 6.7.   The Union points to the testimony of Union Chief Steward Rick Rigersma who testified that Section 6.7 was negotiated in 1978 and discussed in bargaining in the 1980's.  It was his view that the parties understood that the language would apply even though some essential employees might be working 40 hours.  These included maintenance, shipping employees and some finishing employees.   The Union notes that the phrasing of the Employer’s notices relating to the weeks in question demonstrates that this was essentially a plant-wide shutdown.   

It is the Union’s position that the six week period refers to any six weeks in an overall period of slow business conditions stemming from the same overlying poor business conditions.  

            The Union disagrees with the Employer’s interpretation that the six weeks must be contiguous weeks.   The Union notes that nothing in this provision requires the weeks to be contiguous.   It points to other provisions of the agreement which specify when time periods are required to be consecutive, namely Section 6.3.   

Finally, the Union argues the Employer violated the last sentence of Section 6.7, as well.  It argues that the Employer did not “endeavor” in any way to return to a 40 hour week.  It notes the testimony of Human Resources Director Steve Airo that after the week of November 2, the Employer did nothing to go back to a 40 hours week.   The decision to stay on a 32 hour week was made in September and not reviewed.   In the Union’s view, it is incredible that the Employer complied with the last sentence of Section 6.7.  No employees were laid off and, in fact, some worked overtime and some were actually recalled from layoff.    The Union even notes that in some situations the Employer resorted to using temporary employees rather than increasing the work week for at least some regular employees.   The Union offered the testimony of representative witnesses from various departments.  They testified that there were junior helpers and others who were not essential and who could have been laid off during the period in question without affecting production.    Accordingly, the Union concludes that the Employer violated Section 6.7

The Union notes that it also alleged a violation of Section 6.3.  The Chief Steward testified that employees were not being properly notified of upcoming overtime.  It notes his testimony went unrebutted.  Accordingly, it concludes that it has established that the Employer violated Section 6.3.

The Union seeks a remedy of for the first violation of back pay for all lost time for the senior 80% of the employees in the unit who would have worked a full 40 hours for the weeks in excess of 6 weeks.  It specifies the proposed remedy in more detail in its brief.   As to the second violation, the Union requests an order directing the Employer to comply with Section 6.3 in the future.  

The Employer argues that the Union has not met its burden to prove that the Employer violated Section 6.7.  Under Section 2.1 the Employer retains the “maximum freedom to manage its business.  Section 6.7 only applies under the limited circumstances when:

1. The “plant as a whole” is affected by the reduced work week schedule

2. The work week below 40 but not less than 32 hours

3.  That there be a period in “excess [of] six weeks”

It argues that this language is clear and unambiguous.  In its view, Section 4.2(d) precludes the arbitrator from modifying the clear limiting language.  In its view, none of the three circumstances occurred.  Specifically, there was no consecutive six week period.  In regard to that provision, the Employer argues that in common parlance a period of six weeks refers to consecutive weeks. The Union’s interpretation to the contrary is strained.  Further, the Employer argues that the “plant as a whole” was not affected because there were some departments other than maintenance and shipping which operated 40 hours.   The Employer also argues that when production levels were such that the work week was less than 32 hours, Section 6.7 does not apply.

The Employer argues alternatively that the Employer exceeded the spirit and the intent of Section 6.7.  The record shows that the Employer first too available layoffs before reducing the workweek fo remaining employees.  The record shows that the Employer’s staffing model required a staff of 118 to run the plant at an adequately efficient level, 7 more than the plant actually had.  Under this model the Employer could not properly make any further reductions in staff.  Accordingly, its only practical alternative was to run at reduced hours.   It notes that during this period, it scheduled as many employees as possible to work a 40 hour week.   This was as many as 79 at times.   The Employer reviewed the possibility to reduce staff in September, but concluded it was not practical to do so. 

Finally, the Employer argues that the Union has not met its substantial burden to show that the Employer failed to exercise the practical judgment required by Section 6.7.   Where the contract grants management the power to make decisions "in its judgment" arbitrators have ruled that the power to make these decisions is discretionary.   However, even if the arbitrator applies some other standard such as "arbitrary or capricious" or even "reasonableness," the Union has failed to show that the Compnay violated Section 6.7.  The Employer alleges that the evidence shows that its staffing decisions were reasonable.  These decisions were based upon the Company’s staffing model, customer orders, production and inventory requirements, and the efficient operation of the plant.  Any other configuration would have resuled in the plant building too much inventory and the inability to build and ship furniture in an efficient manner.  They were also reviewed daily   The record also shows that the Company did work 40 hours work weeks where practical.  At times, up to 75% of the plant worked a 40 hour work week.  Accordingly, the Company concludes that it did not violated Section 6.7 and it requests that the grievance be dismissed.  

DISCUSSION

1.  Statement of the Issue

The Employer phrased the statement of the issues essentially as follows:

1. Did the Company reduce the workweek of its Grand Rapids plant as a whole below 40 hours, but not below 32 hours, for a period in excess of six weeks?

2.  If so, did the Company endeavor, so far as practical in its judgment in the efficient operation of the business, reduce the workforce to maintain forty (40) hours for as many employees as practical?

The Employer also took the position at the outset of the hearing that the remedy of back pay should be limited only from three days prior to the filing of the grievance as provided in Section 4.2(d).  The Union stated at hearing that it was not seeking back pay prior to that period.  

The Union phrased the issues as follows:

Did the Company violate the collective bargaining agreement when it failed to reduce the work force after it continued to work 32 hours weeks for a period in excess of six?

If so, what is the appropriate remedy?

The parties stipulated that I might state the issue.   Both parties have highlighted the significant parts of their positions by their statement of the issues.   The Union assumes, for example, that there was a six week period within the meaning Sec. 6.7.   The parties, in fact, dispute whether there was a six week period.   I have phrased those issues more neutrally above.    The Union has assumed that the Company must reduce staff after 6 weeks even if it does not result in anyone returning to a 40 hour week.  This is not required by Section 6.7 

The grievance also separately alleges that the Company failed to give sufficient advance notice of overtime required by Section 6.3 .  The parties agreed that both matters were in issue.  I have included that issue. 

          2. Merits 

            Section 6.7 was created by the parties at a time of regular 40 hour work weeks to deal with the possibility that the Company might have to schedule shortened work weeks in slack times.   It is common in the furniture industry for employers to use shortened work weeks in times when business is slack.   The purpose of this provision is evident from its face and this context.  The provision is a broad statement of the relationship the parties have chosen to have in slack times when shortened work weeks might be necessary.  It recognizes that shortened work weeks might be necessary, but also recognizes that shortened work weeks financially impacts employees.  Both parties recognize that by articulating their mutual intention they can encourage vital experienced employees to stay if they can expect a  return to a 40 hour week as soon as possible.   Section 6.7 limits the otherwise broad management right to work shorter work weeks in any way the Company chooses by outlining specific restrictions on shortened work weeks.   The provision makes the Company accountable to employees for its decisions after six weeks, but it ultimately preserves broad authority in the Company to make economic decisions about shortened work weeks.  While it preserves the authority of the Company, the Company has expressly pledged to take its employees’ interests into account by endeavoring to return to a 40 hour work week.  It also recognizes everyone’s mutual self-interest that the plant run as efficiently as possible during slack periods.  This is true because neither the Company, nor labor benefits by unnecessary losses or reduced income for the Company.  

Because the parties recognized that this provision essentially created the parties’ mutual policy for these circumstances and because it was not practical to attempt to consider every conceivable policy, many of its terms are not precisely clear.     Many are susceptible to different interpretations.  A provision in a collective bargaining agreement is ambiguous if it is fairly susceptible to two different possible interpretations.  Section 6.7 is ambiguous in a number of ways.  For example, it is ambiguous as to; 1. Is the six week period consecutive and, if not, when the six week period restarts; 2. Does the “plant as a whole” require that the reduced work week be universal and, if not, how does it apply; 3. May the Company operate at less than 32 hours.  There are other questions as to the meaning of this provision which are addressed below.  When the provisions of a collective bargaining agreement are ambiguous, arbitrators use various methods to determine what the intention of parties was.   Arbitrators look to the actual discussions of the parties in collective bargaining with respect to the dispute provisions or other mutual discussions.  They also heavily rely  on the mutual past practice of the parties in administering the provision.  Arbitrators also look for guidance Arbitrators also use rules of construction commonly applied by the courts and arbitrators.  These rules include: a.  interpreting a provision as a whole and consistent with its subject matter, and purpose; b.  choosing that interpretation which gives effect to all clauses and works; c. that specific language should govern over general language, and d. choosing that interpretation which is reasonable over an interpretation which would lead to harsh and/or absurd results.  

One of the ambiguities in Section 6.7 is the meaning of the phrase “. . . but not below thirty-two (32) hours” in Section 6.7.  The Company contends that if it shuts the plant down completely or works employees less than 32 hours in a week, the week does not count toward the six week limitation.   This view would lead to an absurd interpretation of Section 6.7.  The correct view of the phrase is as one of limitation, prohibiting the Company from reducing a normal work week below 32 hours (other than for complete shutdown).   It is not in issue in this matter as to how to interpret the limitation in abnormal work weeks such as those containing one or more holidays.  However, it is an issue in this cases as to how to count that type of week.   A week in which the plant is entirely shut down, such as the weeks of November 19 and December 24 do not break the continuity of the six week limitation, but do not count toward the six weeks.  The chart in the fact statement above demonstrates the proper method of counting a week of entire shutdown.  

Another ambiguity raised by the facts in this case, is the meaning of the “plant as a whole” in Section 6.7.   The better view of this phrase is to treat it as meaning closer to “in general” than the equivalent of everyone in the plant.    Mr. Ringersma credibly testified that he was present when this language was discussed in collective bargaining sessions in which the parties were concerned about the meaning of the phrase.  He credibly testified that the Company and Union mutually recognized  that there might be some essential employees such as maintenance, shipping and receiving who worked during a reduced work week.   There was disagreement among many witnesses as to precisely which departments or groups of employees are essential employees.   The import of this bargaining history strongly demonstrates that “plant as a whole” is not intended to be a limitation on  the Company preventing it from having some essential departments work a full work week, while others are on reduced work weeks.   It is less clear whether these discussions ever were directed to distinguishing when Section 6.7 applies or when a prolonged period of shortened work weeks for a very small group of employees does not qualify for protection under Section 6.7 because it was not  for the “plant as a whole.”    It is clear that the parties did recognize Section 6.7 applies to weeks of general shutdown even if employees which the Company deemed essential were allowed to work 40 hours.  What is not clear is when the number of employees working becomes so large that the shutdown is not for the plant as a whole.   

The protective purpose of this provision is better served if  “as a whole” is construed to have Section 6.7 apply to a broad range of situations in which essential employees are recalled.  The facts of this case illustrate the point.   The Company frequently recalled employees for Friday work.  About 14% of the plant worked in most weeks.   On some weeks near the end the Company operated the plant with as many as 75% of the employees working a full week.    All of the reduced work weeks occurred during the same economic slow down.  All were in a relatively close time period.   In this context, the protective purpose is better served as including weeks of December 14 and December 21 as weeks that the plant worked a partial week “as a whole,” because these weeks are part of the overall scheme of events in this slack period. 

The principal issue in this matter relates to the circumstances which cause the six week cycle to restart.   Section 6.7 gives the Company unfettered discretion to operate at a work week less than  40 hours but not less than 32 hours for six weeks, as a result of poor business conditions.  Thereafter, it imposes obligations on the Company to make efforts to operate at 40 hours.  If the Company chooses to still operate at less than 40 hours, this provision permits the Union to seek review of the Company’s decision in the grievance procedure.   In this context, the six week limitation cannot be read merely to be six consecutive weeks as the Company proposes.   Were that true, Section 6.7 would be reduced to a nullity, because the Company could avoid being accountable for its actions merely by operating 40 hours in as little as one week.[6]   This provision should be broadly construed  in accordance with its purpose to provide protection for employees.   The  better view is to determine from the facts and circumstances as a whole whether a “six” week period has occurred.  The factors which I consider include: 

1. Whether the period of time occurs from one set of economic circumstances;

2. The number of intervening weeks which are not countable;

3. Whether the Company should reasonably have foreseen that it would be returning to reduced work weeks; 

4. The  Company’s motivation in the way it chose to schedule the intervening weeks.  

In this regard, I conclude that the weeks are properly counted as above.  They include the weeks of 10/8 and 10/15 which are not counted, but which do not interrupt the six week period.  It appears that the Company’s decision to run full work weeks was made entirely in good faith and entirely upon business needs.  Nonetheless, it appears that it was reasonably foreseeable at the time that the Company would return to shortened work weeks.   Similarly, the context of a slow time was continuous through this period.   Week 11/19 does not interrupt the six week period even though it was a complete shutdown because the weeks before it and after it were weeks of reduced work weeks.  It does not count toward the six week limitation.  Similarly, for the week of December 24.  This was a shortened work week with a holiday.   I conclude that the Company exceeded the six week limitation specified in Section 6.7 starting with the week of November 5.  

The next question is whether the Company complied with the provision which requires

“ . . . the Company will at the end of the six (6) week period endeavor, so far as practical in its judgment in the efficient operation of its business, to reduce the work force to maintain forty (40) hours for as many employees as practical” for those weeks in excess of six.   This provisions requires  that the Company; 1. Continuously “endeavor” to return to the forty hour work week and 2. Requires the Company to make practical judgments.   The word “endeavor” is more than merely considering or trying, it requires an honest and sincere effort with full recognition of the consequences which employees suffer in reduced work weeks.[7]   The words “so far as practical in its judgment in the efficient operation of its business” reflect that it is the judgment of the Company and not the arbitrator.   Nonetheless, it is very unlikely that the parties would have bothered to create this provision or included the word “endeavor” had they not expected that the actions of the Company would be subject to review by an arbitrator.   The record in this case demonstrates that the kind of judgment which is called for requires expertise in production planning and a detailed knowledge of the equipment and procedures in the plant.   The review of the Company’s judgment(s) by the arbitrator should be limited to determining whether:

1. The Company made the judgment in good faith

2. If its judgment is based upon a full investigation of the facts

3. If its judgment is based upon sound business judgment

4. If the Company fully considered the interests of the employees in a forty hour week

5. The judgment is supported by the facts which should have been known to the Company 

The Union does not dispute the Company’s decision made in September to go to shortened work weeks.   This judgment was made on the Company’s long standing staffing model.  It is, therefore, it was not made in bad faith with respect to Section 6.7.   The record also shows that the Company sincerely made layoffs in the months of June and July before it concluded it was forced  to go to a shortened work week.    The record also shows that the specific judgment made by the Company was reasonable.   The evidence shows that the production management team met in September to discuss a third layoff.  Mr. Annis specifically argued that the Company’s long standing staffing model would not let the plant operate efficiently with fewer people.  The team concluded  to operate on a 32 hour week instead.  

Mr. Annis supported this judgment with extensive specific examples.  For instance, he testified that operating the two production lines with fewer people would require that one be shut down while the other operates.  He supported that example with direct testimony as to why alternating lines was not  feasible.

The other objective evidence also indicates that in the months that followed, there were some weeks when the Company recalled the whole plant for 40 hours.   Other evidence indicates that the management team met on a daily basis to determine its staffing needs.  While those meetings did not focus on finding a way to run forty hours, they did demonstrate that the Company watched its staffing levels closely and honestly believed that its staffing levels were vital. 

The Union’s chief concern was that, in its view, the Company did not “endeavor” to return to a full work week.  The Union is correct that the Company did not fully comply with its responsibility to “endeavor” to return to a forty hour week.   The term “endeavor” is not ordinarily used in collective bargaining agreements.  Its choice  reflects the parties’ mutual understanding of the gravity of slack times and shortened work weeks.  When a term is used in collective bargaining agreement, it is given its ordinary meaning.  Webster’s Super New School and Office Dictionary, (Fawcett Crest, 1974) defines the term as:  “to strive for the attainment of some object.”    This includes an effort which is more than perfunctory and even more than earnest, but aggressive and inventive, as appropriate.   The term also carries with it an implication of some form of visibility.   It would seem that the term would require that the effort be recognizable the Union and employees.   The parties did not require that the Company negotiate returning to the 40 hour work week with the Union, nor did they necessarily require consultation with the Union, but some certainly is strongly advisable.  It does require that the Company at least explain to the Union and employees what it is doing to achieve a 40 hour week.  It is this visibility which can reassure employees that their interests are really being considered.   It would stand to reason, of course, that the Company would also have to give every serious consideration to those interests.  

The Employer considered its staffing needs in making its decision, but did not pursue the decision from the view of establishing a forty hour week for as many as possible.  Human Resources Manager Airo testified that he did not view Section 6.7 as applicable because he viewed  Section 6.7 as applying only to six consecutive weeks.   Thus, it is likely that the management team did not even consider that it had the obligation to “endeavor.”   As noted above, the concept of “endeavoring” would require some form of investigation to see to what extent it was possible to return to a forty hour week.   For example, the Employer’s staffing model was over 5 years old.   Employer witnesses admitted that the model was inaccurate as to the production of the new models of home office furniture.   It did not investigate on a department to department basis to find out if there were other inaccuracies which might permit some or all departments to work a forty hour week.[8]   No one from management met with the Union or individual departments heads to consider that possibility.  Non one from the Company met with the Union or explained to employees what efforts the Company was taking to return to a forty hour week after six weeks of shortened work weeks. 

The Union offered testimony to suggest both that it was incredible that the Employer fully considered returning as many people as possible to a forty hour week and that it was likely that the Company had some staff changes which would have led to more employees having 40 hours of work after the six week period.  The Union witnesses from three departments testified that there were potential ways that the Company could have returned them.   Mr. Rick Ringersma is an Operator A in Department 20.  He testified that the Company hired  new employees and temporary employees during the period of the reduced work weeks.  He said that some employees worked overtime when others could have been returned to 40 hours. 

J. P. Nicholas was the second witness.  He is a class A in Millroom, Department 10.  He testified that the Company hired two employees in his department.  He testified that his milling machine ordinarily is operated with two people, but did say he could operate the machine himself.  He implied that if the total number of helpers were reduced he could tail on another operator’s machine.  He acknowledged that either would be less efficient.  He also acknowledged that he did not work any overtime in this period.  He said that employees were doing make-work in his department including excessive sweeping.  He also stated that the Company hired temporary workers in the fall of 2001.  Dana Smith was the third witness to testify on behalf of the Union.  She is an experienced inspector in the Finish Department.   She testified that the Company hired a number of employees I her department in the fall of 2001 at the entry level.  She testified that it would not have affected the operation if they were not there.   She also testified that there were substantial periods in which helpers were doing excessive make-work and that people in he department rarely had enough work to do.   She also stated that people were moved around to different jobs more than normal.   She also indicated that the Company hired temporary workers during this period.

Human Resources Director Airo clarified that the all but possibly one of the employees who were hired were recalled from prior layoff to replace other employees who left employment.   He denied that the Company hired any temporary employees, but did admit that there may have been times when employees were temporarily recalled from layoff.   I conclude that the total number of employees remained effectively constant during this period.   He also denied knowledge of excessive make work or idle employees.  He said he went through the shop twice a day and did not see any of this.  He did admit he made no inquiries on the subject.   

Production Manager Annis credibly testified that he concluded that the Company needed to maintain the total staff it did.  This judgment was based upon the Company’s staffing model and his experience.  He responded to the examples raised by the Union and also offered additional specific credible examples as to why some of the theories of the Union were incorrect.   The Union witnesses were credible in their view that there was excessive make-work throughout the period of the shortened work weeks.   

As noted above, the Company did not fully investigate all possibilities.   Mr. Annis also did  not see or investigate for employees doing excessive make-work.  He did not view the situation from the standpoint of returning as many people to 40 hours as possible.   However, Mr. Annis and the Company are credible in the conclusion that it is unlikely there would have been a substantial opportunity(s) for many additional employees, if any, to return to a 40 hour week.   While the Company violated Section 6.7 by not sufficiently “endeavoring,” the evidence is insufficient to demonstrate a likelihood that there would have been a substantial opportunity(s) for many additional employees, if any, to return to a 40 hour week. 

The next issue is the appropriate remedy.   The remedy the Union requested is to make all employees whole for those hours less than 40 which they would have worked had the Company complied with Section 6.7.   Mr. Annis’ testimony with that of other Company witnesses makes it very unlikely that the entire plant would have worked 40 hours for more than one of the weeks after the initial six week period.   It is conceivable that some departments might have had more 40 hour weeks.  It is impossible on this record to determine the actual extent of any losses by employees.  I also note that the Company acted in good faith under its interpretation of Section 6.7 and its use of its staffing model.   I also note that this situation is the first time the Company has ever operated on  shortened work weeks.  The nature of the violation is one of failing to avail itself of all available information and failing to investigate the situation from the standpoint of employee interests in a forty hour work week.   I am satisfied that a finding of violation and cease and desist order are sufficient.  That remedy is entered below 

Mr. Ringersma testified that employees were required to work on Fridays during the shortened work week period without notice by noon on Wednesday within the meaning of Section 6.3.  Mr. Airo denied that this occurred and, alternatively, stated Section 6.3 applies only to Saturday overtime.   The evidence is insufficient to conclude whether this actually occurred.   The evidence is also insufficient to decide as to whether Section 6.3 should have applied.   I would conclude that it would apply if there never is Sunday overtime.  However, if there has been occasional Sunday overtime, Section 6.3 would not appropriately apply.   The concept of Saturday may just distinguish  this overtime from overtime which occurs after a regular shift.    The evidence is insufficient to conclude a violation of Section 6. 3 occurred. 

AWARD

1.  That the Company violated Section 6.7 of the Agreement by failing to fully “endeavor” to return all of some additional employees to a full forty hour week after the initial six week period of shortened work weeks. 

2.  That the Company shall cease and desist from violating Section 6.7 

3.  That the evidence is insufficient to conclude that a violation of Sction 6.3 occurred.

Dated at Milwaukee, Wisconsin, this 11th  day of January, 2003.

 

 

 

_______________________________________
   
                                                                         Stanley H. Michelstetter II
   
                                                                         Arbitrator


[1]The parties mutually agreed that the tape recordings of the hearing were for my own notes, would not be available to either party and would be erased after the rendering of the award.  The parties also mutually agreed that I could reserve jurisdiction over the calculation of back pay if either party requested that I do so in writing, with a copy to opposing party, within sixty (60) days of the date of the award.

[2]This required that it develop an inventory of parts which were time consuming to build.  The total time from receiving an order to shipment could be reduced if those parts were already in inventory.  

[3]This figure represents the employment level for the full plant on the week including this Friday.

[4]He was not aware that they had been recalled, but thought they were new hires.  Company witnesses testified that these employees had seniority and had been recalled to replace employees who left employment. 

[5]Company witnesses all denied that there were any temporary employees during this period.

[6]The parties have inserted the word “consecutive” in other potentially ambiguous time delineations.  See, Sections 6.1 and 6.3.  Had the parties intended to make this six week period strictly continuous, they would have followed a parallel terminology. 

[7]This term is discussed more below.

[8]The Company did meet on a daily basis to determine how to meet its daily staffing needs, but I do not believe that the Company considered staffing from the point of view of the employees’ interests in a 40 hour week.

 

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