Sunkist Growers Inc. Area
and International Brotherhood of Teamsters Local
Union No. 517
ARBITRATION PROCEEDINGS PURSUANT TO
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.
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
The workweek is defined as Sunday through Saturday, and the workday is
defined as 12.01 A.M. through Midnight.
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 9.01 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
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
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).
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.
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 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
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.
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.
 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.