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Title: Sunkist Growers Inc. Area Group and International Brotherhood of Teamsters Local Union No. 517
Date: June 10, 2005
Arbitrator: Allen Pool
Citation: 2005 NAC 137

 

American Arbitration Association
Case No. 74300 00237 05

C. ALLEN POOL, Arbitrator
Arbitrator's Case No. 5-13-05

IN ARBITRATION PROCEEDINGS PURSUANT TO
AGREEMENT BETWEEN THE PARTIES

International Brotherhood of Teamsters 
Local Union No. 517

                            and

Sunkist Growers Inc. Area Group

Grievance:  Scheduling Issue, 6th day

 

ARBITRATOR'S

OPINION AND AWARD

June 10, 2005

 


            This Arbitration arose pursuant to Agreement between the INTERNATIONAL BROTHERHOOD OF TEAMSTERS, Local Union No. 517, hereinafter referred to as the “Union”, and SUNKIST GROWERS, INC., hereinafter referred to as the “Company”, under which C. ALLEN POOL was selected by the parties through procedures of the AMERICAN ARBITRATION ASSOCIATION to serve as the Arbitrator.  The Parties stipulated that the matter was properly before the Arbitrator and that his decision would be final and binding.

            The hearing was held in the City of Visalia, California on May 13, 2005 at which time the parties were afforded the opportunity, of which they availed themselves, to examine and cross-examine witnesses and to introduce relevant evidence, exhibits, and argument.  The witnesses were duly sworn.  Post Hearing briefs were timely submitted to and received by the Arbitrator on June 6, 2005 at which time the record was closed. Briefs were exchanged between the parties via the Arbitrator.

APPEARANCES:

For the Union: For the Employer:

 

John Provost, Esq.
Beeson, Tayer & Bodine
1001 – 6the St., Suite 500
Sacramento, CA 95814



                                                                       
Donald E. Warner, Esq.
Law Offices of Donald E. Warner
11355 West Olympic Blvd., Suite 200
Los Angeles, CA 90064



STIPULATED ISSUES

Did the Company violate the Collective Bargaining Agreement in its compensation of employees who worked more than six consecutive days without a day off?  If so, what is the appropriate remedy?

 

RELEVANT PROVISIONS OF THE AGREEMENT

 

Article 7.04

            The workweek is defined as Sunday through Saturday, and the workday is defined as 12.01 A.M. through Midnight.

 

Article 7.12

 

            Production employees will not be scheduled for more than six (6) consecutive days.  Should it be necessary to for an employee to work on a seventh day (7th) or subsequent days, he shall be compensated in accordance with the provisions of Article 9.

 

Article 9.01 PREMIUM PAY

 

                        One and one-half (1-1/2) times the regular straight time rate shall be paid for all hours worked over eight (8) through twelve (12) hours in any one day or over forty (40) hours in any one work week.  Two (2) times the regular straight time rate shall be paid for all hours worked excess of twelve (12) in any one day. 

            If an employee is required to continue working beyond his regular eight (8) hour shift and his foreman estimates the additional work required will last for more than two (2) hours, a compensated rest period of fifteen (15) minutes shall be provided.  Two (2) times the regular straight time rate shall be paid for the seventh (7) consecutive day worked in any work week.  Overtime work in excess of eight (8) hours per day, funeral pay and unworked holidays shall not be used to compute overtime payment for work over forty (40) hours per work week.

 

 

 

 

 

BACKGROUND

            The events that led to this arbitration took place at the Company’s Tipden plant in the vicinity of Visalia, California.  The Tipden plant processes citrus, primarily oranges, which are sold under the Sunkist label as juice drinks of various types.  Like other agricultural operations the harvesting and processing of the citrus is heavily influenced by the forces of nature. 

            The two main citrus crops processed by the Company are Navel and Valencia oranges.  Navel oranges are the primary crop with the season commencing in November and ending in May.  The processing of Valencia oranges stretches from June through August/September.  The plant shuts down for approximately two weeks in October following the Valencia season.  The plant then reopens in November for the next Navel orange season. 

            The Tipden plant is the only facility in the region with the means to process citrus juices into a concentrate.  As a result, the Company will, on occasion, receive orders from other clients to process lemons into a concentrate.  These orders must be filled and are usually done so on weekends by sandwiching the work in between regular operations.

            In preparation for the commencement of the Fall Navel orange season, the Company will start by assembling and organizing its crews.  Crew members on layoff are given first option to return to work.  However, since about a third of the crew members do not return for the Fall season the Company must fill the vacancies with new hires.  A crew consists of 25 employees.  When the harvest season is at its heaviest the Company will have three full crews working full time at the Tipden plant.  This translates into approximately 25 newly hired employees each season that need to be trained. 

            The plant is highly automated and nearly all members of a crew, in turn, are highly trained as key production operators.  The training period for a new production operator usually takes about 30 days.  The training takes place on the job with the new hire being “shadowed” by a trainer. 

            The Fall Navel orange season starts off relatively slow with the plant operating with one to two crews working.  Soon, however, the forces of nature will kick in.  The harvest and processing of the crop will move into its heavy period and three full crews will be working daily at the plant to process the citrus.  The term “heavy” is appropriate in that citrus ripens according to the forces of nature and must be harvested and processed when ripe. 

            The Tipden plant receives its citrus, in trucks, from the packinghouse.  On a daily basis, the work of processing the citrus continues until the trucks stop coming in.  All of this translates into a significant amount of overtime costs for the Company.  For the crew members, it translates into long work days and frequent long stretches of consecutive work days without a day off.  The crew members routinely worked as many as 9 to 13 consecutive days without a day off.  A related problem stemming from the working conditions was the high number of absentees which contributed to frequent staffing problems.  When a key operator was absent, the Company would need to call in an off-duty operator to fill that employee’s position. 

            In the summer of 2004, negotiations were held which led to the current CBA.  The Company entered the negotiations with the goal of achieving stability in the workforce, keeping overtime costs down, increasing efficiency, and being a good employer.  The Union’s primary goal was to attain language that would give its members, the production employees, a scheduled day off after six (6) consecutive days of work.

            The Union started the negotiations with proposed changes in the existing language of Article 7.04 which defined the work week.  The Company rejected the proposal.  The parties, among other topics, discussed the problem of no scheduled days off after long consecutive days of being on the job.  As shown by the testimony of its chief spokesman and the plant managers, the Company was aware of the “burn out” of many crew members and, wanting to be a good employer, offered the Union a new provision, new language to address the problem, Article 7.12. 

            The Company made the offer after discussing the matter, in caucus, with the plant managers.  The plant managers assured the Company’s chief negotiator that they could work with the conditions expressed in Article 7.12; that is, they would not schedule employees to work more than six consecutive days except if necessary.  The Company’s chief negotiator accepted the assurance given to him by the plant managers.  He cautioned them, however, that if the employees were worked beyond a sixth consecutive, the Company would have to pay the penalty; that is, the Company would have to pay them overtime.  When offered the proposal, the Union accepted the proposal as what they wanted for its members, a scheduled day off.  The Union, in return, dropped its proposal for any changes to the language in Article 7.04, the work week. 

            The CBA was effective as September 1, 2004 just before the start of the Fall Navel orange season.  As work began anew, in November 2004, the new scheduling was working well.  However, circumstances soon changed and crew members were again being assigned to work more than six consecutive days. 

            On November 12, 2004 the Union filed a grievance alleging that the terms of Article 7.12 were being violated (Jt-1).[1]  According to the Union, crew members were being scheduled for more than six consecutive days, some as many as 10 consecutive days.  As a remedy, the Union demanded that the affected employees be paid double time as agreed to in Article 7.12.  The Company’s response was that while the Company had agreed not to schedule the employees for more than six (6) consecutive days there was no agreement to pay double time.  Specifically, the Company’s response stated that it had agreed “to pay the employees appropriately in accordance with Article 7.04” (Jt-2).  The grievance was then processed to this arbitration.

POSITION OF THE UNION

            The Company violated the Collective Bargaining Agreement in its compensation of employees who worked more than six consecutive days without a day off.  The negotiated language in Article 7.12 of the CBA requires the Company to pay premium pay for all days worked beyond six consecutive days work without a day off.  Moreover, the grievance is a “class action grievance” that automatically applies to all similar fact situations which may have occurred or may occur hereafter.  The Company’s violation of Article 7.12 is also a “continuing violation”.  All employees who worked more than six consecutive days without a day off since November 14, 2004 to the present are entitled to premium pay, as specified in Article 9.01, for such work.  The grievance should be sustained.

POSITION OF THE EMPLOYER

            The Union’s claim that this is a “Class Action” grievance has no validity.  Class action is a creature of rule or statute and has no application in these circumstances.  There is also no basis for the Union’s conflation of the “class action” claim with the “continuing violation” doctrine.  Nor is any basis for the establishment of a grievance “in force indefinitely” by writing on the grievance form the phrase “Class Action”.

            The Company did not violate the Collective Bargaining Agreement in its compensation of the employees who worked more than six consecutive days without a day off.  The employees were paid in accordance with the provisions as negotiated.  The parties did not change the method whereby employees would be paid.  The grievants were paid in accordance with the overtime provisions in Article 9.1 of the CBA which governs the payment of overtime in circumstances wherein a bargaining unit employee works more than six days without a day off.  In its payment to the grievants, the Company conformed to Article 9.1. The grievance must be denied.

DISCUSSION

            As a prelude to the discussion of the merits of this case, a few comments about the concept of a “continuing violation” may be helpful.  The concept is applicable in instances wherein each day that passes there is another occurrence of the same violation. The remedy, in such instances, normally accrues from the date the grievance was filed.  In the instant case, the concept of “continuing violation” was not applicable.  The seven employees named in the grievance were scheduled for and worked ten (10) consecutive days.  In their grievance they claimed that they were not paid the appropriate overtime pay for the three days they worked beyond the sixth consecutive day.  The issue, as stipulated, was limited to the question of whether the Company’s compensation to them for the seventh, eighth, ninth, and tenth day violated the Agreement.  

            The Union also contended that the grievance was a “class action” grievance.  The evidence record did not support the Union’s contention.  The Company was persuasive in arguing that, according to Rule No. 23 of the Federal Rule of Civil Procedures, class action is created by the jurisdiction that tries the action and not unilaterally by the statement of one of the parties.  Even more persuasive was the absence of any language CBA that referred to “class action” grievances.  The CBA refers only to “disputes arising out of the Agreement” (Jt-3, p. 8).

            There was no dispute between the parties that the seven production employees were scheduled for and worked three days following a sixth consecutive day.  The dispute was whether the compensation paid to them for the three days was the appropriate premium pay as was required by Article 7.12 of the Agreement.  The negotiated language in Article 7.12 clearly expressed the intent of the parties when they agreed Article 7.12 would be added as a new provision to the CBA. 

            The Company pledged not schedule employees for more than six (6) consecutive days.  The evidence record revealed that the Company was very sincere in its pledge to the employees. The Company was very aware of the “burn out” problem, its impact on absenteeism, and the resulting staffing problems.  The record also revealed that the Company believed that new provision (Article 7.12) would not penalize the Company and contribute to an increase in the payment of overtime.   The Company’s chief spokesman had been assured by the plant’s managers that they could work with the limitation on the scheduling expressed in the Article 7.12.  He cautioned the plant managers that if it became necessary schedule the employees a seventh day or more that the Company would have to pay them the appropriate premium pay according to Article 9.1.

            The second sentence in Article 7.12 stated that “Should it be necessary to for an employee to work on a seventh (7th) or subsequent days, he shall be compensated in accordance with the provisions of Article 9”, specifically Article 9.1 which specified various types of overtime pay.  The only issue in this case was whether the compensation the seven production employees received for the three extra days was the appropriate overtime pay according to Article 9.1.

            The evidence record was clear in that the Company had agreed to pay production employees premium pay if scheduled to work a seventh consecutive day or subsequent days.  However, there was nothing in the evidence record showing that the parties agreed on what the appropriate premium pay would actually be.  The record only showed that there was meeting of minds that the compensation shall be in accordance with the provisions of Article 9 (Emphasis added). 

            In the initial grievance filed in November 2004, the grievants claimed that the Company had agreed to pay “double time pay” for the hours worked on those three days (Jt-1).  However, the Union, in its brief stated that it was understood that the Company’s proposal (Article 7.12) “required time and a half for all days worked after six consecutive days, and double time if the employee worked more than 12 hours on any of those days” (Union Brief pp. 3 & 4).   As mentioned in the above, the evidence record was clear that the Company had agreed to pay premium pay in instances such as the above.  The record also supported the Union’s contention that the appropriate premium pay in such instances should be required time and a half for all days worked after six consecutive days, and double time if the employee worked more than 12 hours on any of those days. Therefore, if the Grievants, in this instance, were compensated an amount less than the premium pay specified above, they are entitled to be paid the difference between the two amounts. The Arbitrator used the word “if” because nothing was put into evidence showing the compensation that was actually paid to the grievants for the three days they worked passed the sixth consecutive day.

            For the reasons discussed in the foregoing, the conclusion of the Arbitrator is that the Company was required to compensate the grievants time and a half for the three days they were scheduled to work following the sixth consecutive day and double time if they worked more than 12 hours on any of those three days.  The grievance is sustained.

 

 

AWARD

            The Grievance is sustained.   The Company was required to compensate the grievants time and a half for the three days they were scheduled to work following the sixth consecutive day and double time if they worked more than 12 hours on any of those three days.

 

REMEDY

 

            If the grievants were compensated an amount less than the premium pay specified above, the Company is directed to pay the Grievants the difference between the two amounts. 

 

            The Arbitrator retains jurisdiction over any dispute that may arise in implementing the remedy.

 



[1]  Joint Exhibits are referenced as Jt-1, Jt-2, etc.  Union Exhibits are referenced as U-1, U-2, etc.  Company Exhibits are referenced as C-1, C-2, etc. 

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