Oregon lawmakers last year approved a bill that was drafted for one reason: To stop the Nabisco plant in North Portland from penalizing workers who decline to work overtime with little notice. But when the law took effect last month, the company continued its longstanding discipline practice, claiming it was exempt from the legislation. Now, the state’s labor bureau is investigating.
Senate Bill 1513 prohibits bakeries and tortilla manufacturers from taking “adverse employment action” against a worker for refusing to work overtime when an employer gives less than five days notice. It fixed what Nabisco workers say is a longstanding problem at the plant.
“You’re in the process of leaving, you’ve already changed your uniform, you head to your car, and suddenly they’ll stop you and say, ‘Hey, we need you for five more hours,’” says Mike Burlingham, secretary-treasurer for BCTGM Local 364 and a 15-year worker at the Nabisco plant. Local 364 represents about 200 workers at the plant.
It’s fine if the worker wants the overtime shift. But what if the worker has prior commitments, or simply doesn’t want to stay? Declining the shift means receiving an attendance point, just like if a worker called out for the day without scheduling time off. After four attendance points, a worker can face disciplinary action. [pullquote] “You’re in the process of leaving, you’ve already changed your uniform, you head to your car, and suddenly they’ll stop you and say, ‘Hey we need you for five more hours.’”
–Mike Burlingham [/pullquote]
Speaking before lawmakers last year, Nabisco workers said the system forces them to choose between accruing attendance points and keeping doctor’s appointments or picking up their kids from school.
State lawmakers approved the bill ending that system. It had strong bipartisan support in the Senate. Then Governor Kate Brown signed it into law last March. It took effect Jan. 1, 2023, but Nabisco managers have continued telling workers they’ll receive attendance points if they decline last-minute overtime. And for one worker, attendance points from declining overtime after Jan. 1 appeared on disciplinary paperwork.
Sheela Simon was suspended in late January for accruing attendance points. She acknowledges accruing points last year, possibly enough to trigger a suspension, but when she received paperwork related to the suspension, she saw she’d accrued attendance points from declining overtime after the new law took effect.
BCTGM Local 364 took the issue to the Oregon Bureau of Labor and Industries (BOLI), which has the authority to enforce the overtime law. Local 364 filed a complaint with the agency on Jan. 23, pointing out that Simon’s Jan. 12 disciplinary notice included attendance points for refusing overtime on Jan. 4, 5 and 6 without the five days notice required under the new law.
Nabisco parent company Mondelēz did not return a request for comment. But according to Local 364, Nabisco argues it is exempt from the law that was drafted and passed specifically to cover its bakery. The law contains an exemption if workers are covered by a collective bargaining agreement that lays out how overtime is handled. According to BCTGM, the company is citing that provision and noting that the company and union have a union contract, so the law doesn’t apply. But BCTGM says the contract only details the rate of pay for overtime (time and a half), not factors like notification or overtime limits, so the law does apply.
BOLI spokesperson Rachel Mann confirmed the agency received a complaint and has sent investigators on two occasions to visit Mondelez. Mann declined to comment further because it is an open case.
The Oregon AFL-CIO strongly supported the overtime bill last year, which the organization said was a “direct response” to Nabisco’s overtime scheduling policy.
“There is obvious, clear legislative intent that Local 364 members are to be covered under SB 1513,” Oregon AFL-CIO President Graham Trainor said by email. “It’s incredibly shameful that the company continues to mandate forced overtime with little to no notice, which is blatantly defiant of the law in Oregon. We will continue to support all bakery workers in Oregon in the fight against unjust overtime scheduling practices.”
Simon, who has worked at the Nabisco plant for 24 years, says last-minute overtime has become more common as the plant has faced short-staffing. She says it used to be two or three workers being asked to work overtime, whereas on one recent day, the company assigned 11 workers to overtime shifts.
Burlingham, Local 364’s secretary-treasurer, says the plant has been understaffed for several years and that the company seems to prefer paying overtime to hiring more workers, because it’s cheaper.
