In The Matter of Arbitration Between:

Anderson Erickson Dairy, Employer

and Teamsters Local 120,

Union FMCS Case Number 160526-55496-8

(Contract Language) Carol Berg O'Toole

Arbitrator

Date of Hearing: November 9, 2016 Date Record Closed: January 20, 2016 Date Award Issued: January 26, 2016

Representatives:

For the Union: Kyle A. McCoy, Esquire Solden Law Firm, LLC 5502 Upland Trail Middleton, Wisconsin, 53562

For the Employer:

Matt Robinson, Esquire Hess Martone 13354 Manchester Road, Suite 100 St. Louis, Missouri 63131

For the Union: Witnesses: John Klootwyk, Dairy Consultant, Teamsters Local 120 John W. Rosenthal, Vice President and Business Agent, Teamsters Local 120 Also in Attendance: Kevin Saylor, Business Agent, Teamsters Local 120

For the Employer: Witness: Dave Horton, Director of Plant Operations, AE Dairy Also in Attendance: Joel Abbott, Human Resources Director, AE Dairy

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Steve Flattery, Distribution Manager, AE Dairy Sherry Miller, Human Resources Manager, AE Dairy

Preliminary Statement

The hearing in the above matter commenced on November 9, 2016 at 9:35 A.M.

and concluded at 11 :45 A.M. on the same day. The parties involved are Teamsters

Local 120 (Union) and AE Dairy (Employer). The hearing was transcribed. The parties

presented opening statements, oral testimony, oral argument, and exhibits. All exhibits

offered were received with the arbitrator's admonition that, depending on the exhibit,

some would be given less weight. Post hearing briefs were timely filed by both parties

on January 13, 2017. The arbitrator closed the hearing upon receipt of the last post

hearing brief on January 13, 2017.

Issues Presented

The parties did not agree on the issues. T. at 7. The arbitrator fashioned them in

this way:

The issues are:

Issue One: Whether the Union met its burden of proof to show the Company

violated the Collective Bargaining Agreement when the Company failed to use the

training list for all jobs?

Issue Two: If so, what is the appropriate remedy?

Jurisdiction

The Employer and the Union are signatories to two collective bargaining

agreements, the Master Dairy Agreement, Joint Exhibit 1, and a Local Addendum, Joint

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Exhibit 2. They cover various employees, including all Production and Maintenance

employees, Truck Drivers, Wholesale Commission Route Drivers, and Garage

Mechanics. The Master Diary Agreement, Joint Exhibit 1, provides in Article 7 that if the

grievance is not resolved during the grievance procedure, the grievance may be

referred to arbitration. The parties could not agree on a resolution through the

grievance procedure; thus, the dispute is properly before the arbitrator. Both parties

agreed that there were no procedural or jurisdictional issues.

Grievances

The grievances involved in this arbitration are four. Joint Exhibit 4 and 6.

The February 12, 2016, grievance alleges, "The company is attempting to

change contract language by not calling the training list for all jobs." Joint Exhibit 4 .

This grievance is referred to as the "all members grievance" and is at the heart of this

arbitration.

The October 8, 2015, grievance alleges, "The Company violated the Contract as

stated in Article 26.2 By not calling the training list that Brett was on October 2, 5 pm to

9 pm. The Supervisor Victor did the work (Pasturizing)" Joint Exhibit 4.

The October 13, 2015, grievance alleges, "The Company violated the Contract

by not calling the training list Saturday night, October 10, 2015 at 9:30 pm to 7:30 am

Sunday, Oct. 11. As stated in Article 26.2 for overtime in receiving room. Kevin Dewey

worked these hours and is a supervisor." Joint Exhibit 6.

The October 20, 2015, grievance alleged, "The company violated the contract by

Victor not calling me on the training list For the blend job he called Brian Shillinger For

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October 19, 2015 For the hours of 4:00 pm to 9:00 pm which Brian came in on at 5 pm

to 9 pm I have seniority on Brian and am on the Oct. Training List." Joint Exhibit 6.

Applicable Agreement Provisions

The pertinent provision of the Local Addendum, Joint Exhibit 2 is Article 26,

entitled Hours. Joint Exhibit 2. The grievance states that, "The company is attempting

to change contract language by not calling the training list for all jobs." The Union asks

that the company call the training list for all jobs and points to Article 26.

Article 26, section 26.2 reads, "Overtime will be offered by seniority and

qualifications. If employees fail to sign the overtime sheet, they will not be called for

overtime. If the Company is not able to find anyone on the overtime sign-up sheet that

wants the overtime, it will then call the training list in order of seniority and offer the

overtime."

Section 26.6 provides, "Overtime shall be offered in line of seniority to qualified

employees via the overtime list and training list."

Section 26.7 continues, "There shall be a list maintained and posted by the

Company of the jobs that employees are qualified to perform and will be updated

quarterly. Employees shall notify the Company of additional jobs they are qualified to

perform. Employees can be removed from any job that they cannot perform."

The pertinent provisions of the Master Dairy Agreement, Joint Exhibit 1, are

Article 6 and 17. Article 6, Maintenance of Standards, provides in pertinent part that,

"all conditions of employment ... shall be maintained at not less than the highest

standards in effect at the time of the signing of this Master Agreement, unless otherwise

agreed to in the addenda negotiations." Joint Exhibit 1. Article 17, Work Assignments,

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provides, "Recognized work of employees within the bargaining units included herein

shall be performed by these employees covered by this Agreement. However, the

parties recognize that circumstances may necessitate exceptions to this general rule.

Such exceptions may be made by mutual agreement between the Union and

Employer." Joint Exhibit 1.

Discussion

Position of the Union

Counsel for the Union opened by stating that in the Local Addendum under

Article 26.2 employees sign up on lists for overtime for the next week. Transcript (T) at

5, Joint Exhibit 1. Then, the Employer prepares a seniority based training list which is

compiled monthly to fill the jobs. T. at 6. "The employees on the list obviously are not

qualified to perform all of the jobs in the plant and they, by putting their name on that

list, said I would like to be trained." T. at 6. Employees that are on the list but not

qualified can fill the job when they become qualified. It is the Union position that all jobs

should be called from the training list. T. at 7.

The first witness for the Union was Jack Klootwyk who is a dairy consultant for

the Teamsters Local 120. T. at 12. Klootwyk was an employee for 18 years and the

steward for 15 or 16 years. T. at 12. He participated in negotiating the agreements

starting in 1996 or 2000. T at 13. Klootwyk filed one of the grievance which is the

subject of this arbitration. Joint Exhibit 4. Klootwyk stated that he had been a "filler"

and that most jobs take two to three weeks to learn. T. at 16.

Klootwyk testified that the company proposed in negotiations that the training list

be deleted because it takes too much time to go through the list. T. at 18. For some jobs

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it takes too long to be trained for the job. Klootwyk agreed that employees would be

brought in and work alongside a supervisor but never became fully trained. T. at 19. At

the end of negotiations the parties decided to leave the list as it was. T. at 19. Starting

in 2012, trouble ensued with grievances over unit supervisors doing bargaining unit

work. T. at 21 . Klootwyk stated that the training list was exhausted and supervisors

had to perform jobs. The Union has no right to file a grievance in those cases. T. at 22.

Three types of jobs have separate overtime lists: drivers; maintenance worker;

garage mechanics. Drivers need a commercial drivers' license. T. at 28. Maintenance

workers cover for themselves. T. at 29. Garage mechanics do not have an overtime

list. T. at 28. There is no training list for drivers. T. at 28.

On cross examination, Klootwyk agreed that AE Diary had "ridiculously high

standards" and were more expensive than other companies. T. at 30-31. Klootwyk

testified that he did not have an example of the Employer calling the training list for a

milk receiving position. T. at 35. Klootwyk stated that calling the training list was a

long standing practice before it was put in the contract. He stated that the training

period for the milk receivers was "not necessarily" lengthy and that the company put the

list together. The Union doesn't approve the lists. Klootwyk agreed that if the milk

receiving was not done correctly there are serious consequences. T. at 41. Klootwyk

stated that milk receivers had to be licensed, drivers had to be licensed

(COL) and mechanics had to be licensed (ASE). T. at 42. He also agreed that the

company did not force overtime, but that there is a provision in Section 26.6 allowing the

Employer to force overtime. T. at 45. Klootwyk agreed that the grievances seek that the

company call the training list for all plant positions, but this was not a change, as far as

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he was concerned. T. at 46. "This is not a change as far as I am concerned because

they should've been doing it all; along, and the Company would not have requested a

change in the language if it was otherwise. T. at 46-47.

On redirect, the witness testified that an opening in milk receiving was "rare".

A second witness, John W. Rosenthal was called for the Union. Rosenthal is

and has been a Vice President of Teamsters Local 120 since 2015. He is located in

Dubuque, Iowa. T. at 46. He was the chief negotiator for the Union for the Local

Addendum in 2015, but didn't participate in bargaining in 2012. T. at 49-50. He

explained the reason for keeping the language the same. He also explained the reason

for putting the language in initially: to prevent the supervisor from performing bargaining

unit work. He testified that the company changed its practice.

On redirect, when asked if he had any idea how the training list was done before

2015, he testified that he wasn't handling the group at AE dairy. T. at 54. Rosenthal

was asked if the training list was called for the milk receiving position before the 2015

contract. T. at 54. He testified, "I have no-any proof that it was or wasn't." T. at 55.

Position of the Company

Counsel for the Employer opened by stating that the training list has existed for

many years. T. at 8. The reference to the training list was put into the contract in 2012.

In 2015 a new contract was negotiated. No changes were made to the training list

reference except to add a reference to it in another part. T. at 8. The training list is a

compilation of employees who volunteered to work overtime shifts for positions they are

not qualified to perform. T. at 8.

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"The purpose of the training list is to increase the pool of qualified employees for

overtime opportunities so the overtime doesn't arise .. . " T. at 8. Counsel explained that

in situations where overtime is needed, the first calls are to employees who have

volunteered to work the overtime and are qualified. T. at 8. If none accept, the Employer

cannot force employees to work overtime. T. at 9. So the Employer needs to find

another way to fill the need. T. at 9. The Employer must call the training list and

supervisors will have trainees perform as much as possible. If none of the employees

accept the overtime, the Employer still has an overtime need. T. at 9. The Employer

can either have the supervisor perform the work or just not have that position filled for

that shift. T. at 9. "Now, if the supervisor is going to perform it, they must call the

training list for certain positions and have an employee come in and attempt to be

trained ... . [T]he supervisor will have the employee perform as much of the job as

possible, but since they're not qualified it's likely that the employee is just watching the

supervisor perform certain functions." T. at 9-10

Counsel stated that the training list has always excluded positions that can't be

trained on a night in one shift; that is, positions requiring certification, i.e., milk receivers

who are licensed by the Iowa Department of Labor. T. at 10. Counsel stated that the

training list has never been called on that position and the employee is legally prohibited

from performing that job without certification. T. at 10. That position was excluded in

2012 and it is excluded in 2015. Counsel labeled this grievance an attempt to change

the language of the contract through the grievance and arbitration process rather than

through negotiations.

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The Employer's first witness, Dave Horton, is the Director of Plant Operations

and has been for four years. T. at 56. He oversees intake and plant production. T. at

56-57. He has been with the company for 29 years. He started as a union employee.

T. at 57. Horton described the process and pointed out that the milk receiver person is

at the critical control point where loss of thousands and thousands of pounds of milk

could occur. He testified that a recall could hurt or shut down the facility. T. at 58. He

pointed out that the Employer depends on quality.

Horton was asked about the length of time required for a milk receiver to get

licensed. The training occurs on site. A State Inspector comes to the company to

watch the employee perform the unloading process. Then, the State Lab has to watch

the process. T. at 59. Finally, the lab has to sign off and certify the employee on testing

the product. T. at 59. At the conclusion of this, the employee obtains a license. T. at

59. Horton pointed out that the Employer depends on quality.

Horton said there were a total of eight licensed milk receivers: three full-time,

three relief milk receiver, and two supervisors. If a receiver is absent due to vacation,

the supervisors schedule relief. Horton described the process in detail. He said they

had a lead of two days on customer demand for milk. He said that he fills shifts by

seniority. The process may take an hour to an hour and one-half. For machine

operators, the Employer goes down the overtime list and goes to the training list if they

have a supervisors that can train. The training list was a compromise they made in

2012. There was no training list prior to 2012. Positions that are excluded are

maintenance, milk receivers and pasteurizers. Horton said that the training list always

excluded the above three positions, even after 2015. T. at 59-60

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Horton described the training for the pasteurization position. T. at 61 . When

asked how long it would take for someone who has never done the pasteurization job to

learn that position, he said six months. T. at 61 . Horton was asked how an employee

could learn to perform the job, Horton testified that, "They could bid on a - voluntarily

bid on an open position of a pasteurizer or voluntarily bid on an open relief position. T.

at 61 . Horton said the company would train the employee to be a pasteurizer. T. at 62.

Horton testified that he had been involved with the training list ever since it came

into practice and it always excluded maintenance personnel, milk receiving and

pasteurization. T. at 67. When asked why it excluded them, he said, "Milk receiving,

you have to license for that - to be able to perform that job, and it's a critical control

point of our process." T. at 67. Horton said the positions were excluded before and

after the 2012 contract and the 2015 contract.

Award

This dispute presented difficult issues in light of the Employer's and the Union's

obvious desire to enable employees to improve their positions within the company.

The background of Horton himself is evidence of that mutually shared goal as well as

the testimony of the Employer about an employee bidding on an open pasteurizer or

relief position and being trained by the company. T. at 61-62. In that context, an

examination of the language is in order.

Interpreting the Plain and Clear Words

This dispute centers on the meaning the clauses in Section 26 of the Agreement.

Joint Exhibit 2. In three sections of Article 26, the reference is to employees who are

senior and qualified to perform the job. In Section 26.2, it reads, in pertinent part,

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"Overtime will be offered by seniority and qualifications. (Emphasis added.) If

employees fail to sign the overtime sheet, they will not be called for overtime. If the

Company is not able to find anyone on the overtime sign-up sheet that wants the

overtime, it will then call the training list in order of seniority and offer the overtime."

Further, Section 26.6 provides, "Overtime shall be offered in line of seniority to qualified

employees via the overtime list and training list. (Emphasis added.)" Finally, in Section

26.7 it states, "There shall be a list maintained and posted by the Company of the jobs

that employees are qualified to perform and will be updated quarterly. (Emphasis

added.)" The language is consistent. If an employee is senior and qualified for the

position available for overtime, the employee can have it.

Most of the jobs in AE Dairy are jobs that can be learned by observation and with

on-the-job training for a relatively short time. The exceptions are those jobs that need

licensure or certification and take a much longer period to learn. Klootwyk testified that

some jobs could never become fully trained by working alongside a supervisor. T. at

19. You don't become qualified and learn during a shift how to become a milk receiver

or a pasteurizer, or a maintenance worker or a driver. These exceptions take an

outside agency to observe and certify that the employee is qualified. They are licensed

positions.

"[l]f the words are plain and clear conveying a distinct idea, there is no occasion

to resort to interpretation, and their meaning is to be derived entirely from the nature of

the language used." Ralphs Grocery Co., 109 LA 33, 35-36 (Kaufman 1997), as cited

by Elkouri & Elkouri, How Arbitration Works, 8th Ed., BNA at 9-8.

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The Employer and the Union agreed to language in 2012 that reflected the practice

and was intended to continue the practice. Klootwyk Testimony. T. at 47. The

language is clear. The Employer is only obligated to call an employee on the training

list if the employee is qualified to do the job or can be in a short time by observing the

job being done. Observing alone will not result in being qualified for the four jobs listed

above.

Union's Burden of Proof

In this contract interpretation case, the Union alleges a violation of the contract

and has the burden of proof. Rosenthal stated in response to a question about the

training list being used for milk receiving jobs said he had no examples. T. at 35.

Rosenthal testified that the company had changed its practice but when asked if the

training list had been used before 2015, he said he wasn't handling the AE group. T. at

54. He then admitted he had no proof of the company calling the training list for the milk

receiving position. "I have no-any proof that it was or wasn't." T. at 55.

To the contrary, Horton testified that he had been involved with the training list

ever since it came into practice and it always excluded maintenance personnel, milk

receiving and pasteurization. T. at 67.

The Union produced no witnesses who had signed the training list for milk

receivers or pasteurization that were not called when there was a need.

Interpretations of One Clause that Nullify Another Clause

This interpretation of the language the Union urges would negate the limiting

language of Sections 26.2, 26.6 and 26.7 of the Agreement. Joint Exhibit 2. A general

rule in contract interpretation is that one gives effect to all clauses and words. "It is

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axiomatic in contract construction that an interpretation that tends to nullify or render

meaningless any part of the contract should be avoided because of the general

presumption that the parties do not carefully write into a solemnly negotiated agreement

words intended to have no effect." John Deere Tractor Co., 5 LA 631 , 632 (Updegraff,

1946), as cited by Elkouri & Elkouri, How Arbitration Works, 8th Ed., BNA at 9-36.

In the instant case, the union's position that all jobs are subject to the training list

would negate the consistently stated requirement of being qualified. The position the

Union asserts would make the qualified language meaningless.

Past Practice

The Employer argues that past practice compels denial of the grievance. I do not

consider past practice determinative unless the language is unclear. The language of

the agreement is clear in this case. The individual has to be qualified and most senior

to get the position. The two positions at the center of this controversy require outside

certification which cannot happen in a shift watching a supervisor.

But, let's assume for argument's purpose that a consideration of the past practice

is appropriate and determinative. The practice was that the training list was never used

for pasteurization or milk receiving positions. The testimony of Horton was

uncontroverted. T. at 67. The positions which require licensing and a substantial period

of training have consistently been treated differently. If a consideration of past practice

was appropriate, the result would be the same. The Employer has never used the

training list for these jobs. The testimony of Horton was credible and unrefuted by the

Union.

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Bargaining History

The Union argues in its post hearing brief that bargaining history compels

sustaining the grievances. The Union asserts that the Employer proposal for doing

away with the training list for milk receivers and pasteurizers proves their point.

However, Joint Exhibit 4 shows that the Employer proposed total elimination of the

training list. Rosenthal agreed in his testimony. T. at 53. In light of this bargaining

history, the argument fails.

Three of the four grievances (dated 2/12/16, dated 10/8/15, and dated 10/13/15) deal

with the use of the training list for pasteurization and milk receiver jobs. The union did

not meet its burden of proof to show the company violated the collective bargaining

agreements when the company failed to use the training list for all jobs. These three

grievances are denied.

The fourth grievance (dated 10/20/15) deals with a blend job and the allegation is

that the most senior person was not called. There was some testimony regarding the

nature of the blend pasteurizing job (T. at 26) but no testimony about failure to use the

training list for this position or using a supervisor because no one was qualified to

perform the job. The Union did not meet its burden of proof to show the company

violated the collective bargaining agreements when the company failed to use the

training list for all jobs .. This fourth grievance is denied.

Dated thi~ ay of ~·2017.

Carol Berg O'T oole

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