Judge: Mondelez can't force workers to take a day off each week to reduce OT pay

By Dan Churney | Jan 9, 2019

By Mike Mitchell - Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=31472269

A Chicago federal judge has burnt a suit by a Chicago-area bakery company, which wanted employees to take 24 hours off every seven days to avoid overtime, finding labor law requires bosses let employees rest every seventh day, but also must give them the option of working.

The ruling was issued Jan. 2 by U.S. District Judge Matthew Kennelly favoring the Burr Ridge-based International Association of Machinists and Aerospace Workers District No. 8, Local Lodge 1202, in litigation against Mondelez Global. 

Mondelez, which makes products such as Oreo and Chips Ahoy cookies, as well as Ritz crackers, among other items, operates plants in the Chicago region, including one in Naperville, which turns out Triscuit crackers. The company has dual headquarters in suburban Deerfield and in East Hanover, N.J.  

In 2015, Mondelez told union members they would no longer be allowed to work seven straight days. The company cited the federal One Day of Rest in Seven Act, which requires such periods of R&R, and state law that administers the Act.  

The union considered the idea half-baked, replying the labor contract permitted workers to voluntarily put in seven consecutive days, to allow the chance for overtime pay. The union filed a grievance, with the arbitrator ruling the rest periods were not to be imposed. The arbitrator reasoned that because Mondelez had previously let union members work seven days in a row, a binding past practice had taken hold. 

The arbitrator directed Mondelez to reinstate its previous weekend overtime procedure, permitting employees to voluntarily work a seventh straight day, and make whole the employees who had lost money since the company changed past practice.     

Mondelez went to court in November 2017 to overturn the arbitrator's decision, arguing it had to obey the One Day of Rest Act, while the union contended the National Labor Relations Act demanded the arbitrator's decision be enforced. 

The answer was clear to Judge Kennelly. 

“As the arbitrator correctly concluded, Mondelez Global was not entitled to unilaterally change a long-standing mutually understood and implemented past practice, particularly one effectively memorialized in the Collective Bargaining Agreement, without bargaining with the union,” Kennelly pointed out. 

Kennelly added: “The cited provision of One Day of Rest in Seven Act, as it has been administered by the Illinois Department of Labor, allows parties to contract around it, which is exactly what Mondelez and the union have done for many years.” 

The arrangement between Mondelez and employees was voluntary, with the union there to ensure it remained so, according to Kennelly. 

Kennelly ordered Mondelez to comply with the arbitrator’s decision. 

Mondelez also lost a similar legal action it brought in February 2017, against the union in connection with the company’s Chicago plant. In July 2017, the case was tossed on the same grounds as last week’s dismissal. 

Mondelez is represented by the Chicago firm of Jackson Lewis P.C. 

The union is represented by the Chicago firm of Carmell, Charone, Widmer, Moss & Barr.

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Carmell Charone Widmer Moss & Barr Jackson Lewis P.C. Mondelez International, Inc. U.S. District Court for the Northern District of Illinois

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