Article IIUnion-Management RelationsSection 2.5 Management (in pertinent part): Except as specifically abridged or limited by the express provisions of this Agreement or any supplementary agreement that may hereafter be made, the Employer retains all the rights, powers and authority exercised or had by it prior to the time the Employer entered into its first collective bargaining agreement with this Union. Without limiting the generality of the foregoing, it is understood that the rights retained by management include, but are not limited to, the following: the right to plan, determine, direct and control bakery operations and the extent thereof; ... and the right to control the workforce ... the assignment and scheduling of work.

Article VWorking Hours and Other Conditions of Employment

Workday and Workweek(B) Production Workweek (in pertinent part): The basic workweek for all bakery employees shall consist of five (5) eight (8) hour workdays for a total of forty (40) hours ... The basic workweek shall be from 12:01 a.m. Sunday and end at midnight (12:00 a.m.) Saturday.

Weekly and Daily Guarantees (B) : A minimum of eight (8) hours of work shall be guaranteed to all full-time employees under this Agreement who report for work in any one day, except that the minimum guarantee shall be only four (4) hours with respect to work requested on the sixth and seventh day of the workweek.

Work Schedules (in pertinent part): The Employer reserves the right to determine working schedules and the number and starting times of working shifts ...

Overtime and Other Premium Pay

(A) Overtime (in pertinent part): ... Overtime at the rate of time and one-half (1-1/2) the employees regular straight time hourly rate ... shall be paid for work performed ... (4) On the sixth consecutive day of work. Overtime at the rate of double (2x) the employees regular straight time hourly rate ... shall be paid for all work performed on the seventh consecutive day of work. No overtime shall be payable for Saturday or Sunday work as such.

(B) Sunday Work: Any employee who is assigned to a work schedule that does not provide for two (2) consecutive days off shall be credited with one (1) earned work credit share for each Sunday worked under any non-consecutive day work schedule.

(D) Extra Day Work (9): Saturday and Sunday work which is regularly scheduled as part of the basic workweek shall not be considered extra day work for purposes of seniority claiming.

Letter of Understanding Calculation of Double Time Pay to Bakery Workers Who Work Seven Consecutive Days (page 50 of the Agreement) (in pertinent part): Section 5.5 of the Collective Bargaining Agreement provides for the payment of double the employees regular straight time rate of pay for all work performed on the seventh consecutive day of work. It has been the past practice to combine two workweeks in order to allow employees to have seven consecutive days of work. Normally the employees pay period, as set by Payroll, runs from Sunday through Saturday and then a new week starts ...

Facts The employer is a wholesale baker and sells bakery products to others. The employer purchased the wholesale bakery assets of the former employer and is a successor employer that assumed the existing agreement. The employer employs 125 production employees, whose basic workweek for at least 14 years has been Sunday, Monday, Wednesday, Thursday, and Friday, with Tuesday and Saturday as days off. To meet increased customer demand, the employer opened a second bun line so that fresh buns would be baked on Saturday for pickup by 5 a.m. Sunday.

The employer posted bids for the new line, which showed the basic workweek for the new production employees to be Sunday, Tuesday, Wednesday, Thursday, and Saturday, and the days off would be Monday and Friday. Seventeen or 18 production employees work the second bun line and were affected by the new workweek. Two employees filed a grievance on behalf of the bakery employees affected by the new workweek schedule. The grievance charges that the employer violated the Article 5, Section 5.1 B, of the agreement by starting the workweek on Saturday at 4 p.m.

Issue Did the employer violate the collective bargaining agreement by scheduling Saturday as a part of the basic workweek?

Position of the Parties The employer contended that it is permitted to make Saturday part of the basic workweek by the clear language of the agreement. The employer argued that pursuant to Article V, Section 5.1(B), the basic workweek is clearly intended to be a seven-day period, beginning at 12:01 a.m. Sunday and ending at midnight Saturday. Furthermore, the letter of understanding confirms this by stating the workweek runs from Sunday through Saturday. Therefore, the employer may, under the management rights provision, change the basic workweek to include Saturday. The employer argued that a week is seven consecutive days usually beginning on Sunday and ending on Saturday and uses the Random House Dictionary to support that definition. Thus, the workweek necessarily runs through midnight Saturday, just before the 12:01 a.m. Sunday starting time. According to common usage, midnight is part of the day that is ending, not part of the day that is beginning. Therefore, it argued midnight Saturday means the midnight between Saturday and Sunday and not the midnight between Friday and Saturday. Midnight Saturday comes at the end of the day and is followed by Sunday. The reference to 12:00 a.m. is a misunderstanding of how to designate midnight because noon and midnight are technically neither a.m. nor p.m. Noon is generally considered to be 12:00 p.m. and midnight to be 12:00 a.m. Under a prior arbitration proceeding, the arbitrator found that the collective bargaining agreement prohibited the use of a past practice to change the meaning of the agreement and that because the employer was a successor-employer who adopted the agreement and did not negotiate it, it was even more necessary to interpret and apply the parties written agreement according to the plain and ordinary meaning of its language.

The union argued that Article V, Section 5.1(B), which provides that the basic workweek shall be from 12:01 a.m. Sunday and end at midnight (12:00 a.m.) Saturday does not permit the employer to make Saturday part of the basic workweek since Saturday is specifically excluded from the definition of the basic workweek as provided by this clear and unambiguous language. Under this language the production workweek ends 12:00 a.m. Friday night and begins again at 12:01 a.m. Sunday morning. If the negotiators had intended to have Saturday as part of the basic workweek, the language would read that the workweek would start at 12:01 Saturday morning. a.m. is morning before noon, and 12:00 a.m. is the morning of Saturday and not the morning of Sunday. In support of this position, the union cites Websters Dictionary, which defines a.m. as ante meridian, before noon: used to designate the time from midnight to noon, and p.m. as post meridian, after noon: used to designate the time from noon to midnight. The union further argues that there has been a long-standing past practice of at least 14 years that establishes that Saturday cannot be a part of the basic workweek because it is a scheduled day off for the production employees. The production employees have always had Saturday as a scheduled day off and have always been paid premium time when they have been required to work on Saturdays. The prior arbitration award did not preclude the examination of past practice in this instance because it is used to support and define the clear meaning of the agreement. Furthermore, the letter of understanding refers to a payroll issue, does not define the basic workweek, and does not override the specific provisions of the agreement that define the basic workweek.

Questions As arbitrator, what would be your award and opinion in this arbitration?

Identify the key, relevant section(s), phrases, or words of the collective bargaining agreement (CBA), and explain why they were critical in making your decision.

What actions might the employer and/or the union have taken to avoid this conflict?