STATE OF CALIFORNIA

DEPARTMENT OF INDUSTRIAL RELATIONS

INDUSTRIAL WELFARE COMMISSION

Public Hearing

April 15, 2002

Ronald Reagan State Building Auditorium

300 South Spring Street

Los Angeles, California

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HAROLD ROSE, Hearing Officer

DOUG McCONKIE, Analyst

TRACI PILGRIM, Analyst

Page

Proceedings 4

Public Comment:

ROBERT A. CANTORE, United Food and Commercial 4

Workers, Local 324; Graphic Communications

Union, District Council 2

Adjournment 8

Certificate of Transcriber 9

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(Time noted: 10:00 a.m.)

COMMISSIONER ROSE: We're on the record. We're in Los Angeles at the Ronald Reagan State Building, and we're here for public comment on proposed amendments to Wage Order 1 regarding the modification of Section 11 in order to permit a meal period to commence after six hours instead of five.

And we have one person who's going to speak.

Mr. Cantore?

MR. CANTORE: That's correct.

COMMISSIONER ROSE: Okay. Go ahead.

MR. CANTORE: Yes. My name is Robert Cantore, and I'm here on behalf of the United Food and Commercial Workers Union and the Graphic Communications Union, District Council Number 2 -- oh, by the way -- United Food and Commercial Workers Union, Local 324.

Both of my clients are concerned about the possible amendment to Wage Order Number 1. As I understand it, the amendment would only permit a six-hour meal in the event it was made pursuant to a collective bargaining agreement. My clients' concerns are several-fold:

First, we believe that such an amendment would increase the pressure upon unions to waive their members' rights under the wage order and create situations in which the employer would say, "Unless you waive your members' rights under the wage order, you're not going to have a collective bargaining agreement."

We'd prefer that it be mandatory that our members receive meal periods after five hours.

The second concern is that while it is thus far limited to the manufacturing industry, where you have UFCW Local 324 has very few members -- they have about 22,000 members in the Counties of Orange and -- Los Angeles and Orange County. Only a small portion of them are in the manufacturing industry. Most of them are in the retail industry. They don't see it as being a long time before the other industries start asking for the same type of exemption. Once the manufacturing industry gets it and it's going to be -- this is the nose in the camel's tent -- the nose in the camel -- the camel's nose in the tent, rather.

Finally, we are concerned that six hours -- not finally -- we're concerned that six hours is too long a period of time within which to have an employee go without a meal. We are familiar with the exemption that already exists in the motion picture industry. But if you've ever seen the motion picture industry operating, at the end of the six-hour period, they roll up catering trucks, and it's a fully catered hot meal. If the manufacturing industry would like to provide catered meals the way the motion picture industry does, we'd probably be more amenable to having the exemption pass.

And our final concern is that we think it is unlawful. Since the famous Supreme Court case of Livadis v. Bradshaw, which involved the Labor Commissioner of this state, the Supreme Court of the United States has made it very clear that union employees and nonunion employees must be treated the same.

In a Ninth Circuit case involving Labor Code Section 750, which deals with the 8-hour day in the mining industry, the Ninth Circuit held that -- in an attack on that section by a nonunion mining company, held that the section was not unlawful by providing this contract opt-out under a collective bargaining agreement, because the nonunion employees, by a two-thirds vote -- much like the wage orders -- also had the opportunity to opt out of the 8-hour day.

In this proposed change to the wage order, only union members with a collective bargaining agreement would have the right to opt out of the five-hour meal and go to six hours. And we feel that the whole wage order then would be subject to attack by the nonunion manufacturing industry as being unfairly discriminatory against them, and risk losing the whole meal period provision of the wage order.

So, with all of those concerns, my clients believe the better solution to any problems our brothers and sisters in the United Oil Workers might have with their five-hour meal would better be addressed by amending Section 17 of the wage orders, all of the wage orders. Section 17 allows for certain types of exemptions, to rest periods, change rooms, records, but not meal periods. What we suggest doing is changing the exemption provision to allow for exemptions from meal periods, at least as to the five-hour versus the six-hour provision.

Then that request for an exemption would be investigated by the Division of Labor Standard Enforcement and, at least in theory, would not be granted unless the exemption is really needed. Whereas, if you amend the wage order and allow for the automatic exemption if it's provided in the collective bargaining agreement, there's no way really of knowing, by the state and by the Commission, that the exemption is really needed, or rather, it was simply forced upon the union by the employer.

And for those reasons, the United Food and Commercial Workers, Local 324, and the Graphic Communications Union, District Council 2, are opposing the proposed amendment to Wage Order Number 1.

COMMISSIONER ROSE: Okay.

MR. CANTORE: Thank you.

COMMISSIONER ROSE: I have a question. Did you or anybody representing your clients attend the wage board meetings and bring this up?

MR. CANTORE: No. We weren't aware of them.

COMMISSIONER ROSE: You weren't aware of them?

MR. CANTORE: We were not aware of them.

COMMISSIONER ROSE: Okay. Thank you.

MR. CANTORE: Sorry.

COMMISSIONER ROSE: Is there any other person to speak?

(No response)

COMMISSIONER ROSE: Seeing none, hearing none, the meeting is adjourned.

(Thereupon, at 10:12 a.m., the public

hearing was adjourned.)

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CERTIFICATE OF TRANSCRIBER

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I, Cynthia M. Judy, a duly designated transcriber, do hereby declare and certify under penalty of perjury under the laws of the State of California that I transcribed the tape recorded at the Public Hearing of the Industrial Welfare Commission, held on April 15, 2002, in Los Angeles, California, and that the foregoing pages constitute a true, accurate, and complete transcription of the aforementioned tape, to the best of my ability.

Dated: April 19, 2002 ______________________________

CYNTHIA M. JUDY, Transcriber