FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 01-16375

ICWUC LOCAL NO. 867-C,

Union,

and

CARGILL, INCORPORATED,
Company.
_______________________________/

OPINION OF THE ARBITRATOR

July 28, 2003

After a Hearing Held June 5, 2003 in Marysville, Michigan

For the Union: For the Company:

James T. Simensen Tracy Wessel Johnson

Representative Cargill, Incorporated
ICWUC Law Department
799 Bristol View Drive PO Box 5624
Hamilton, OH 45013-6377 Minneapolis, MN 55440-5624
 World’s Last Alberger Salt Plant

Cargill, Incorporated (“Cargill” or “Company”) operates the world’s

last salt processing plant using the Alberger method invented by J.L.

Alberger, a Buffalo, New York inventor, as a radical modification to the

grainer process for making evaporated salt crystals. The original U.S. Patent

was No. 351,082, and the date was October 19, 1886.1 The plant, located in

Saint Clair, Michigan, opened circa 1890. Cargill bought the plant as part of

a broad asset acquisition from Akzo Nobel, Inc. in 1997.

The International Chemical Workers Union Council of the United

Food & Commercial Workers Union and its Local 867-C (“Union”)

represented the hourly employees when the plant was owned by Akzo

Nobel. After Cargill acquired the plant, it refused to accept the existing

collective bargaining agreement. However, it hired more than 50% of the

hourly employees and so was forced to recognize the Union.

After an acrimonious beginning, the parties entered into their first

collective bargaining agreement in September of 1998 (JX 3). Hourly

employees were credited with their previous seniority. The current

agreement (JX 1 or “CBA”) covers the period March 15, 2001 to March 15,

2005.

1
Patent information courtesy of Susan Feldman, Technical Director, Salt Institute, susan@saltinstitute.org.

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 In June of 2001, about a month after the CBA had been signed, the

Company laid off 11 Union employees, out of seniority. The Company had

experienced serious production problems at the plant and, because of its

inability to furnish customers with a continuous supply of Alberger products,

it lost 25-30% of its customer base. Four non-Union employees were laid off

at the same time.

On June 8, 2001, the Union filed a grievance (JX 2) in which it

charged that the “Company failed to lay off hourly employees in proper

order.” The Company denied the grievance, stating:

The layoffs were done according to the C.B.A. Some people retained
their jobs due to skill and ability as were some people recalled out of
seniority because of skill and ability this past year.

The Union demanded arbitration, and after several postponements, a hearing

was held at a neutral site in Marysville, Michigan on June 5, 2003.

Pertinent Provisions Of The CBA

At issue are the interpretation and application of Sections 4 and 9 of

Article VII, Seniority:

4. The following jobs will be filled based on ability and

qualifications: Boiler/Power Plant Operator, Maintenance A/
Electrician, Maintenance A, Production Operator, Process Operator,
and Utility Operators. If ability and qualifications are equal among
competing employees, seniority will prevail.

Team Leader positions will be posted and selected based solely on

skill and ability and proven leadership. …

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 9. The Company retains the right to layoff employees or reduce the
workforce and to determine which jobs will be retained. In the event
of a layoff or reduction in force, employees will be laid off and
recalled in order of plant seniority provided that it is understood that
maintaining efficient and continuous operations may require retaining
or recalling employees out of seniority for employees having
necessary special skills or abilities.

a. For a layoff or temporary reduction in the workforce not

exceeding seven (7) calendar days affected employees may
be laid off by seniority within the affected classification
without the right to bump employees in any other
classification.

b. Any employee who is permanently laid off or displaced in a

reduction in force may bump the least senior employee in
the department. An employee bumped from a department
may bump the least senior employee in the plant and will be
trained accordingly. Such employee must qualify for the job
within the normal training period. Employees displaced due
to a reduction in force shall have recall rights to their former
job classification for a period of six (6) months. …

In order to grasp the full significance of the classifications listed in

Section 4, it is helpful to set forth all job classifications from Article XI,

Section 1:

Maintenance Team Leader

Maintenance A/Electrician
Maintenance A
Processing Utility
Power Plant Utility
Production Utility
Processing Team Leader
Packaging Operator
Processing Area Operator
Boiler/Power Plant Operator
Production Team Leader

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 Production Operator
Warehouse/Shipping Team leader
Warehouse/Shipping Operator.

Not A Case For Past Practice

Both parties appeal to the doctrine of past practice, the Union in its

opening statement and the Company in its brief @ 6. All too frequently, the

term “past practice” is interjected into a situation in which it has no

applicability, and this is one of those cases. The Company did not accept the

contract by which its predecessor was bound. Instead, it insisted upon

negotiating a new one in 1998, only 3 years before the incident in question.

The contractual provisions at issue were amended in the current CBA (UX

3). As a result, there is no consistent history of dealings from which a

practice can be inferred. At most the parties point to a layoff in March of

2000 and subsequent recalls of laid-off employees, but a single incident

hardly establishes a practice.

In addition to a lack of history, there is no mutual understanding

dehors the contract in which a practice can be grounded. Hill & Sinicropi,

Management Rights (BNA 1986) @ 20-21; Elkouri & Elkouri, How

Arbitration Works (ABA/BNA 5th ed 1997) @ 630-645. As a result, the

doctrine of past practice is inapplicable. IBEW, Local 2356 and Okonite

Company, 01-2 ARB ¶ 3830, 28 LAIS 3805 (Cornelius Arb 2001). The Union

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did introduce evidence that it had rejected the inclusion of an integration or

zipper clause in the CBA (UX 4), but the presence or absence of such a

clause is but one factor to be considered. IBEW and Okonite, supra. This is a

case of pure contract interpretation and application.

The Positions Of The Parties

The Union is not challenging the Company’s right to recall out of

seniority, only to lay off that way. Union Brief @ 7. The Union contends

that Section 4 does not apply to Section 9, and that the latter must be read

independently of the former. Moreover, Section 9.b should be read as a

stand-alone provision, at least with respect to layoffs, without regard to the

“necessary special skills or abilities” proviso of the initial paragraph of

Section 9. The Union insists that, during the most recent negotiating

sessions, it made clear to the Company its willingness to strike over layoffs

out of order. Senior Union members testified that seniority effectively is

meaningless without the right to bump.

The Company relies on the language of the Collective Bargaining

Agreement and the logic behind it. The arbitrator deems the plain language

determinative.

The Plain Language Of The CBA

An arbitrator has no authority to ignore the plain language of a

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collective bargaining agreement. Elkouri & Elkouri, supra @ 482-485. The

CBA under examination embodies this limitation: “The arbitrator will have

no power to add to, subtract from, or modify any of the terms of this

Agreement or any agreement made supplementary hereto … .” Article IV,

Section 4. Whatever Union members may have thought or hoped the

language of Article VII, Section 9 was supposed to mean, the arbitrator is

limited to giving it its plain English interpretation.

Both the language and the layout of Section 9 make clear that the

Company “may require retaining or recalling employees out of seniority for

employees having necessary special skills or abilities” (emphasis supplied).

It is just not possible to read this language as pertaining only to recalls.

Moreover, this language appears in the opening paragraph of Section 9,

which overarches the following three labeled paragraphs, a-c, that are

indented under the first one, in a format that literally makes the quoted

language overriding. There is nothing about the language or the layout that

lends itself to the Union’s interpretation.

Be Careful What You Ask For

Similar but not identical phrases appear in the relevant sections of the

CBA: “ability and qualifications”, “skill and ability”, “special skills or

abilities”. Nothing in the CBA sheds light on these differences or explains

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their various nuances, but the Company has interpreted Article VII, Section

4 as delimiting those employees having “special skills or abilities” within the

meaning of Article VII, Section 9. The Union may wish to be cautious about

objecting to the Company’s interpretation because, if Section 4 does not

limit the Company’s right to layoff and recall out of seniority, then the

Company might take the position that its right extends to other positions not

specified in Section 4. While not ineluctable, the Company’s interpretation

is not unreasonable and evinces an intention not to act arbitrarily.

Plain Language Is Not Enough

Of course, it does not suffice for the Company merely to point to the

“special skills or abilities” language of Section 9, even if limited to the

classifications listed in Section 4. When challenged, the Company must be

able to demonstrate that it is laying off or recalling out of seniority

employees with “necessary” talents because it is “required” to do so to

“maintain efficient and continuous operations,” and the Company concedes

as much in its brief @ 9. With respect to the layoffs at issue, the Company

made such a showing.

To understand the Company’s decision, it is helpful to reproduce

portions of CX 1, identifying affected employees and listing them in order of

seniority; those 11 laid off are indicated by asterisks:

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 Department Name Comments
Packaging Operator Lopicollo, Sam* Return/Layoff
Packaging Operator Combs, James* Return/Layoff
Production Operator Arnold, Jerry Alberger
Process Operator Richards, Christopher Screening and Grading
Packaging Operator Quant, William* Return/Layoff
Packaging Operator Lucas, Thomas* DECLINED Recall
Process Operator Stevens, Leonard* Return/Layoff
Packaging Operator Baxter, Donald* Transferred to Colorado
Ship/Ware Operator Wilson, Barbara*
Production Operator Renno, James Alberger
Production Operator Carter, Brian Alberger
Production Operator Surline, Ronald Alberger
Production Operator Beattie, Stephen Alberger
Powerhouse Operator Hines, Jonathan*
Powerhouse Operator Morauski, Nancy* Rehired/Salaried Position
Production Operator Hutchinson, Gerald* Alberger
Powerhouse Operator McAuley, Aura*

It is important to bear in mind that these employees were at the very bottom

of the seniority list (UX 10), having had only 2 or 3 years’ seniority as of the

layoffs on June 6, 2001.

Prior to the layoffs in dispute, 19 Production Operators were needed

to operate the Alberger process. Had the Company laid off 11 employees

solely by seniority (i.e., the bottom 11 from CX 1 above), it would have lost

5 of its 19 Alberger Production Operators, creating grave production and

safety problems, because of the time required to train new ones. Since the

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plant is the only one still utilizing the Alberger process, the Company can’t

hire replacements from the outside. Alberger is the plant’s raison d’etre; if

that process is not operating near capacity, the plant closes.

A Production Operator is required to work with high-temperature,

high-pressure steam; high-speed, rotating machinery; and toxic chemicals;

just to name a few of the job hazards. A mistake by a Production Operator

can shut down the entire process and spill harmful effluent into the Saint

Clair River where the plant is located. In a previous arbitration, the Union

insisted that the Production Operator position is a high-skill, high-stress job

and won a wage increase for that classification. The Company simply could

not afford to lose over 25% of these key employees at one time. Under the

circumstances, the Company exercised its right to lay off out of seniority and

thereby limited its loss to a single Alberger Production Operator. It was

amply justified in doing so.

Two Process Operators were affected by the layoffs and, in keeping

with seniority rights, the junior employee was laid off. To justify laying off

employees senior to the Process Operator retained, the Company presented

evidence that a Process Operator plays a key role in quality control over the

plant’s some 250 salt products, which are distinguished by crystal size and

additives and are used primarily in foods.

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 Different foods require different kinds of salt, so that pretzels, potato

chips, and popcorn may call for different salt products. The amount of iodine

in a product can determine whether it is deficient in a desired mineral or

dangerous to those with iodine allergies. The Process Operator’s job is

crucial to meeting customer requirements. As a result, the Company was

justified in retaining one out of seniority.

The Union’s Concerns

Union members with decades of experience expressed fears that their

seniority is virtually valueless if the Company is allowed to lay off out of

seniority. As noted above, in the instant dispute, only junior employees

actually were involved. In the Company’s brief @ 9, it notes:

[T]he Union’s concerns are … met because as a general rule, layoffs

are still by seniority, and only in certain circumstances will skills and
abilities take precedence over seniority.

In reality, long before senior employees could be affected by a layoff,

the plant will have closed. Thus, the overriding concern would seem to be

keeping the plant open. It is unique, sui generis, with one-of-a-kind

equipment, for which replacement parts must be custom made. Senior

employees will not lose their jobs because of Article VII, Section 9,

especially not as the Company interprets and applies it.

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 The Union indicated its desire to record the hearing, a request this

arbitrator invariably grants, unless, of course, the labor agreement prohibits

recording. In AFGE Local 1629 and VA Medical Center, FMCS No. 86K-

29201 (Cornelius Arb 1987), the arbitrator noted:

Accuracy is essential to due process and the availability of a tape

recording promotes accuracy in briefing and decision making.

The only condition is that the recording party must furnish the

opposing party a copy of the recording. The Union objected that it never

before had been required to do that, but the rationale is simple. If only one

party has access to the recording and a dispute should arise over the

testimony, then there might be a natural tendency to give more weight to that

party’s version of the facts. To avert such an unfair situation, the arbitrator

requires that both parties have a copy of the recording.

The Union did, however, express some concerns which seem quite

valid. At the very outset of the hearing, even before opening statements,

when the arbitrator knew essentially nothing about the dispute, the Company

suggested a plant tour, limited to the job functions of Production and Process

Operators, which the Company represented were the only classifications

involved. The arbitrator finds plant tours generally helpful in dispute

resolution. See, for example, Feralloy Corp, 115 LA 346, 01-1 ARB ¶ 3711,

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28 LAIS 1033 (Cornelius Arb 2000) (tour of steel processing plant to observe

working conditions).

The Union objected to a limited tour, but at the time, the arbitrator did

not understand the objection and so agreed to the Company’s suggested

limitation. Having taken the tour, heard the testimony, and reflected upon

the evidence, the arbitrator now understands the Union’s objection and

accordingly limits this opinion to the Production and Process Operator

classifications. Should a future dispute arise over layoff or recall of other

classifications, their job functions will have to be assessed separately at that

time.

Award

For all the foregoing reasons, the grievance is DENIED.

Dated July 28, 2003 _____________________________

E. Frank Cornelius, Arbitrator

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