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McClatchy-Tribune  08/08/2014 9:09 PM ET
Kellogg says workers returning Monday [The Commercial Appeal, Memphis, Tenn. :: ]

Aug. 08--The fat lady hasn't sung yet for Kellogg Co. workers seeking to turn back a company push to lower labor costs at the Memphis cereal plant.

But Kellogg confirmed Friday that 200-plus workers would report back to work on Monday, while the company continues to mull over a ruling in its favor handed down late Thursday.

After initially saying "we must re-evaluate our prior plan to bring employees back to work next week," the Battle Creek, Michigan company said in a statement Friday:

"While we are pleased with the judge's decision and validation of our legal position, for now our key focus needs to be on bringing our Memphis employees back to work. Memphis employees should report to work on Aug. 11, as previously directed."

The worker's union characterized the ruling as "an errant opinion that missed the point" and expressed confidence the labor-friendly National Labor Relations Board in Washington would agree.

An administrative law judge sided with the company late Thursday. The pro-Kellogg finding was the first bump in the road for an NLRB case, filed earlier this year, accusing the company of unfair labor practices for a nine-month-old lockout and the negotiations that led up to it.

On July 31, with a ruling on the NLRB case still pending, U.S. Dist. Judge Samuel "Hardy" Mays issued an injunction to end the lockout. Mays said the injunction, requested by the NLRB, would protect workers from further hardships pending the conclusion of a potentially lengthy administrative proceeding.

Mays said there was reasonable cause to believe the company violated labor law, but administrative law judge Ira Sandron, ruling on Thursday, seemed to reach an opposite conclusion.

Based on several days of testimony from union and company in Memphis in May, Sandron found no problem with the lockout or the company's negotiating strategy.

In the end, a final decision will rest with the five-member NLRB or even U.S. Circuit Court of Appeals. The board, which includes two Republicans, has been assailed as activist for pushing a pro-worker agenda such as complaints about labor practices at certain McDonald's.

NLRB attorneys argued a Kellogg proposal to broaden use of lower-wage casual workers wasn't a legitimate topic for last October's bargaining between Kellogg and the worker's union, Bakery Confectionery Tobacco Workers and Grain Millers International Local 252G. The parties were negotiating a new local or supplemental agreement affecting only the Memphis plant. The NLRB and union contended casual pay and staffing should properly be discussed as part of a master or national agreement between Kellogg and workers at four cereal plants.

The company wants to pay casuals less, $22 an hour compared to a regular wage of $28, as part of a plan to eventually staff the plant at the lower rate.

The talks broke down when the union refused to bargain on the proposal. The company locked out the workers, brought in replacements and continued to produce cereals including Frosted Flakes and Froot Loops.

Washington lawyer Jeffrey Freund, who argued the case for the NLRB, said Sandron issued a "recommended decision" that automatically goes to the board in Washington for final action.

The NLRB's makeup bodes well for the union side, said Gary Chaison, a professor of industrial relations at Clark University in Worcester, Massachusetts.

"If it's a close case, and it appears to be, I think the activist high-profile NLRB would have a predisposition to agree with the union. And so if the board disagrees with the administrative law judge, it's off to the Court of Appeals."

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