FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 06-58212

UNITED FOOD WORKERS LOCAL 825,

Union,

and

WELCH FOODS, INC,

Company.
_____________________________________/

SUPPLEMENTAL OPINION OF THE ARBITRATOR

May 19, 2007

Upon a Joint Statement of Facts and the Issue Presented

Submitted to the Arbitrator May 14, 2007

For the Union: For the Company:

Edward M. Smith James A. Prozzi

Pinsky, Smith, Fayette & Kennedy Jackson Lewis LLP
146 Monroe Center St, NW, Ste 1515 1 PPG Place, 28th Floor
Grand Rapids, MI 49503 Pittsburgh, PA 15222
 1. Background of New Issue

Following a hearing on October 24, 2006, the arbitrator issued an opinion

in this matter on December 23, 2006, awarding Grievant short-term disability

benefits and reinstatement upon his compliance with conditions precedent.

United Food Workers Local 825 and Welch Foods, Inc, 07-1 ARB ¶ 3786 (Arb

2006). However, the arbitrator retained jurisdiction to resolve any issues which

might arise over implementation of the award. Id. @ 8095. An issue indeed has

arisen, which the parties have submitted to the arbitrator for resolution, in a Joint

Statement of Welch Foods, Inc. and UFCW Local 825, submitted May 14, 2007

(“Joint Statement”).

The Company and the Union executed a last chance agreement on

January 16, 2007, which Grievant signed on January 18, 2007. Joint Statement

Ex 1 (“Last Chance Agreement” or “LCA”). That agreement provides in

pertinent part:

This “Last Chance” Agreement is between Welch Foods Inc., Lawton,

Michigan, [Grievant], employee, and the United Food Workers Union,
Local 825.

The Company will return [Grievant] to employment with Welch Foods

Inc., Lawton, Michigan. In return for allowing [Grievant] to return to
work, [Grievant] and the United Food Workers Union, Local 825 agrees
to the following:

Your reinstatement will be effective Monday, January 22nd, 2007,

providing you agree to accept the following mandatory conditions.

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 1. Disability leave will be processed following [Grievant]’s return to
work with Welch Foods Inc. ***

3. [Grievant] will satisfy a return to work physical and drug screening

before being allowed to physically perform any job. If results are not
received before January 22nd, 2007, [Grievant] will be scheduled as soon
as possible following the results of the physical and drug screen being
received. ***

7. You will be assigned to the 2nd shift General Utility position. You may
be required to fulfill some training requirements on 2nd shift to get your
qualifications updated for the position. ***

11. Except as noted otherwise, the provisions of this Agreement shall

expire after Twenty-Four (24) months after the date hereof, and all other
provisions of the Collective Bargaining Agreement shall apply to your
employment.

12. [Grievant] is required to acknowledge that he has been represented

by his Union and that he understood the conditions and has voluntarily
agreed to the terms of the Last Chance agreement. ***

This foregoing agreement has been explained and accepted as written

this 16th day of January 2007. LCA; emphasis supplied.

The origin of the issue now before the arbitrator is explained as follows in

the Joint Statement:

At about the same time [as the LCA was executed], the Company posted
a job bid for Stockroom Attendant. The Stockroom Attendant position
involves interaction with outside vendors and running errands outside the
Company facility. Bids were accepted until January 19, 2007. On the day
Grievant executed the Last Chance Agreement, he also signed the bid
sheet for the Stockroom Attendant position. Grievant, with a seniority
date of December 28, 1978, was the senior employee on the bid sheet.
(The documents relevant to the job bid are attached as Exhibits 2(a), 2(b)
and 2(c)).

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 However … the Company refused to award the job of Stockroom
Attendant to [Grievant]. The Company’s position was that while Grievant
is the senior employee, the job involves off-site and third party
responsibilities similar to the lead warehouseman position involved in the
discharge case, and that the Company has the right to deny Grievant a
similar position while he is on his Last Chance Agreement, particularly
where the Grievant sought the job on the same day he agreed to the terms
for his reinstatement and the two-year Last Chance Agreement. The
Union’s position was that as the senior employee, Grievant should be
allowed to take the position, despite his Last Chance Agreement and the
reasons for it.

2. The New Issue Presented

In their Joint Statement, the parties phrase the current issue as follows:

Whether the Company violated the collective bargaining agreement when

it denied the job of Stockroom Attendant to Grievant upon his return to
work under a Last Chance Agreement.

3. Discussion And Decision

Last chance agreements are to be strictly construed and enforced. Elkouri

& Elkouri, How Arbitration Works (ABA/BNA 6th ed 2003) @ 969-973. In

Bakers Union Factory v ITT Continental Baking Co, 749 F2d 350 (6th Cir

1984), a case discussed at length in Hill & Sinicropi, Evidence in Arbitration

(BNA 2nd ed 1987) @ 158-160, the Sixth Circuit ruled that an arbitrator has no

authority to disregard a settlement embodied by parties in a last chance

agreement. Thus the arbitrator has no choice except to enforce the LCA

according to its terms.

As one of the “mandatory conditions” for Grievant’s reinstatement, he

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and his Union agreed that he would “be assigned to the 2nd shift General Utility

position.” To allow him to bid on another position on the very day on which he

agreed to accept a General Utility position would vitiate paragraph 7 of the

LCA, contrary to well established rules of contract interpretation. Elkouri &

Elkouri, supra, @ 463-464; Hill & Sinicropi, supra, @ 354-355.

Moreover, according to the provisions of the collective bargaining

agreement, which was admitted into evidence as JX 1 at the October 24, 2006

hearing, Welch Foods, supra, @ 8087, seniority need not be determinative of

the outcome of job bidding. Section 1.b of Article VII, “Job Posting and

Qualification”, authorizes the Company to consider “such factors as skill and

ability”. Only when the factors “are equal in the case of two or more qualified

employees who have answered the posting” must the position be awarded “on

the basis of seniority”. Thus the job does not always go to the most senior

employee.

The Company was well within it contractual rights to take into

consideration Grievant’s “skill and ability”, or lack thereof, to function in the

Stockroom Attendant position, based upon his veritable meltdown as lead

warehouseman. Welch Foods, supra, @ 8087-8089. As Stockroom Attendant,

Grievant would be placed in the very types of situations with which he had so

much difficulty coping at the warehouse. See Joint Statement Ex 2(a) (“Notify

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outside contractor”, “Run errands”, “Must have excellent interpersonal skills

and ability to deal with outside vendors.”).

For all the foregoing reasons, the question presented must be answered in

the negative, and the Company’s decision is upheld.

Dated May 19, 2007 _____________________________

E. Frank Cornelius, Arbitrator