Union wage lawsuit argues COVID-19 was not an ‘act of God’
June 17, 2021
Representatives for union drivers in Illinois are trying to collect unpaid wages after hours were cut due to the pandemic, but the company is claiming it is off the hook because COVID-19 was an act of God.
In May, Teamsters Local 710 in Illinois filed a lawsuit in an Illinois federal court against Frisco, Texas-based Quality Custom Distribution in an attempt to collect an arbitration award issued in December. An arbitrator found that the distributor breached a labor contract when it cut union drivers’ hours last year, denying thecompany’s argument that its actions were due to an act of God.
According to the lawsuit, the union’s collective bargaining agreement with Quality Custom Distribution contains an hours-guarantee provision. In that agreement, the top 80% of the seniority roster is guaranteed 40 hours of work or its equivalent in pay. The remaining 20% do not receive that 40-hour guarantee and are subjected to on-call schedules as needed.
However, that hours-guarantee provision also includes an “act of God” exemption. In the event of an act of God, Quality Custom Distribution is not obligated to guarantee a 40-hour workweek. When that occurs, the company will notify union workers not to report to work. Available work is given in seniority order.
In April 2020, Quality Custom Distribution reduced work hours across the board for union workers from 40 hours per week to 30 hours after Gov. J.B. Pritzker issued a statewide stay-at-home order. The company claimed the pandemic constituted an act of God.
According to the complaint, both the governor and Archdiocese of Chicago referred to the pandemic as an act of God.
Quality Custom Distribution argued at that “it is hard to imagine a more compelling act of God circumstance than the COVID-19 pandemic that has struck the world, closing businesses, causing more than 200,000 deaths (at the time) in the U.S. alone and bringing the country to the brink of collapse,” the lawsuit states. In the past, arbitrators have found influenza outbreaks that are widespread as acts of God for purposes of collective bargaining agreements.
“The COVID-19 pandemic constitutes an ‘act of God’ under Section 4.5 of the agreement because, in accordance with the ordinary definition of that term, the pandemic was due to an extraordinary natural force free of human interference , and because it could not have been prevented by the exercise of reasonable care and foresight,” Quality Custom Distribution argues in court documents.
Shortly after hours were cut, the union, which was not consulted before the decision was made, filed a grievance challenging the reduction.
The Teamsters challenged the “act of God” claim. Rather than reduce work hours, the union insisted that the company lay off employees in reverse-seniority order and assign 40 hours of work per week to the most senior employees, as required by the collective bargaining agreement requires.
Teamsters argue that the term “act of God” must be applied in accordance with its customary, general meaning. Although the pandemic could be considered an act of God, the union claims that it was not the direct, or even secondary, cause of Quality Custom Distribution’s hour reduction. Rather, the governor’s actions were the proximate cause.
“The union submits that in this case, the company’s decision to suspend the 40-hour guarantee was not a direct result of the viral outbreak,” the arbitrator’s order states. “Instead, the evidence confirms that the company suffered a temporary loss of business as its food-service customers saw their own sales decrease. The union contends that the decrease in sales experienced by the company’s customers also was not directly caused by the pandemic. This sales decrease actually was caused by the economic and movement restrictions imposed by the governor’s administration in response to the pandemic.”
The grievance was never resolved, forcing the union to demand arbitration based on the collective bargaining agreement. Although helpers were laid off, company drivers and warehouse workers received 30 hours’ pay each week. Furthermore, they retained benefits from April through June 2020.
In December, the arbitrator agreed with the union, finding the act of God provision does not apply here.
“The spread and negative impact of the COVID-19 pandemic could have been better controlled, but those in authority failed to act quickly and decisively enough,” the arbitrator concluded. “By late March and early April 2020, the pandemic and the damage it was causing no longer could accurately be described as an ‘act of God.’ Instead, a significant part of all of this was the direct result of human action, human inaction and human error.”
Quality Custom Distribution was ordered to pay the balance of the 40-hour guarantee to affected employees. However, the company has yet to comply with the arbitrator’s order. Instead, the distributor filed a petition to vacate the award in March. A motion to dismiss filed by the Teamsters is still pending in that case. The union’s latest lawsuit is asking the courts to force Quality Custom Distribution to comply with the arbitration order. LL