Collective Bargaining Agreement Dated 12-6-95

EXHIBIT 10.38


COLLECTIVE BARGAINING AGREEMENT


between


SWISS AMERICAN SAUSAGE COMPANY


and


UFCW LOCAL 101


APRIL 1, 1995 THROUGH MARCH 31, 1998


THIS AGREEMENT is made and entered into by and between SWISS AMERICAN SAUSAGE CO., located at 35 Williams Avenue, San Francisco, hereinafter referred to as the "Employer" or "Company" and UNITED FOOD AND COMMERCIAL WORKERS UNION LOCAL 101, AFL-CIO, hereinafter referred to as the "Union".


WITNESSETH
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In order to establish Working conditions which are fair and equitable to all Employers and Employees, the parties hereto agree to the following:


The parties to this Agreement recognize the competitive nature of the industry and further agree that no Employee will be required to work hours in excess of the working hours established in this Agreement.


SECTION 1. RECOGNITION, JURISDICTION
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1.1 Union Recognition. The Employer recognizes the Union as the exclusive
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bargaining agent for all Employees employed in the classification set
forth in Section 10 working in the plant of the Employer located in
the City of San Francisco or County of San Mateo.


1.2 Classification Definitions. It is understood and agreed that the
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following groups of Employees shall be recognized as:


1.2.1 Sausage Makers: This group shall consist of a minimum of seven (7)
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Journeymen and/or Apprentices engaged in processing and manufacturing
specialty sausage items, smoked, cooked and cured meats and meat food
products involving trimming and boning, grinding, formulating, and
other preparation, chopping and mixing, hanging, tying and linking,
stuffing casings, loaves and table work, cooking, smokehouse, steam
cabinet, curing and other work incidental to the above.


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1.2.2 Production Workers: This group shall consist of those Employees whose
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job is primarily work other than that outlined above as the work of
Jobbing Butchers and Sausage Makers requiring skills outlined above.
It will include, but not be limited to, work in shipping, receiving,
driving, driver sales, warehousing, slicing, packing, preparation for
production and handling of finished meat cuts and sausage products.
Production workers may be used to supplement the work of Sausage
Makers performing the routine, less skilled tasks, such as, but not
limited to, operation of automated stuffing devices, grinding,
flushing casings, hanging product, opening boxes or similar duties
which cannot be shown to require predominantly Journeymen Sausage
Maker skills.


It is agreed and understood that the use of Production Worker as
herein described shall not result in the displacement of any current
Employees from his/her current classification of work. It is further
agreed that, in the event of a reduction in workforce involving or
affecting the kitchen, Employees in the Production Worker
classification shall be the first removed from the kitchen.


1.2.3 Maintenance Workers: Employees engaged primarily in the maintenance
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and repair of the Employer's equipment.


1.2.4 Sanitation Workers: Employees engaged primarily in the sanitation and
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cleaning of the work place.


1.2.5 Working Foreperson: A Working Foreperson shall not be disciplined by
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the Union or discriminated against in any way for exercising
discretionary duties on behalf of Management or effectively
recommending courses of action to Management.


1.2.6 Supervisors
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Supervisors will not be a part of the bargaining unit, will not be
required to join the Union, and will be permitted to perform whatever
work the Company assigns; provided however that the number of
supervisors shall be limited to a number equal to ten percent (10%) of
the number of bargaining unit employees.


1.2.7 Owner's Family Members
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It is agreed and understood that officers and their immediate family
may, is assigned to perform bargaining unit work, become members of
the Union on the same terms and conditions membership is made
available to all other bargaining unit employees provided that the
officer is stationed in the


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jurisdiction of this agreement and these family members do not cause
the displacement of any current employee.


1.3 Performance of Bargaining Unit Work. The Employer agrees that only
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Employees included in the bargaining unit shall perform any of the
work coming within the jurisdiction of this Agreement, provided
however; that non-bargaining unit work may perform bargaining unit
work where necessary for: emergencies beyond the control of the
Employer, work in the instruction or training of Employees, and
testing materials in production.


1.4 Definitions:
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1.4.1 Regular Employees. A Regular Employee is one who has completed the
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probationary period for all new Employees in accordance with Section
18 hereof.


1.4.2 Extra Employees. Any employee hired to either relieve a regular
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employee or to supplement the existing work force. Extra Employee
shall not be employed to displace Regular Employees. An Extra Employee
who works forty-five (45) work days for the same Employer within a
twelve (12) month period shall become a Regular Employee for the
purposes of benefit eligibility. Extra Employees may be scheduled less
than forty (40) hours per week. Regular Employees on layoff shall be
called to hired. No Extra Employees will be hired when Regular
Employees in the same classification are on layoff.


It is agreed and understood that assignment of Employees to work less
than forty (40) hours per week within the meaning of this provision,
shall not operate to replace any existing Employees and, further, the
hiring of Employees to work less than forty (40) hours per week shall
not be done for the purpose of permanently replacing full-time
positions. In the event of a reduction in force, those Employees
regularly scheduled to work less than forty (40) hours per week shall
be laid off prior to the layoff of any Regular Employees.


1.4.3 Probationary Employees: A Probationary Employee is one who has not
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yet completed the required forty-five (45) work days of trial
employment with the current Employer, as specified in Section 18
(Seniority) herein. New Employees to the industry hired on or after
April 1, 1988, shall not be entitled to health and welfare
contributions, holidays, funeral leave, sick pay and jury duty pay
during the probationary period.


1.5 Management Rights. The Employer shall have the right to the general
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management of all operations and the direction of the workforce,
including


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but not limited to, the right to hire, transfer, promote, maintain
discipline and efficiency, layoff, establish new processes or use new
equipment, establish schedules of production, and to extend, limit or
curtail its operations. Nothing in this Agreement shall be construed,
by any manner or means, to preclude the subcontracting of work by the
Company or to require the Company to perform work at this Plant rather
than elsewhere so long as the rights specified herein are not
exercised in a manner inconsistent with this Agreement.


SECTION 2. UNION SECURITY
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2.1 Local Union Membership. Every person performing work covered by this
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Agreement who is a member of the Union on the effective date of this
Section shall, as a condition of employment or continued employment,
remain a member of the Union. Every person employed to perform work
covered by this Agreement shall, as a condition of employment, be a
member of the Union, or shall, within a period of thirty-one (31) days
after the effective or execution date of this Agreement, whichever is
later, become a member of the Union.


2.2 Maintenance of Membership. The Employer shall discharge every person
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who has failed to comply with the provision of Section 2.1 at the end
of the work day during which notice of such noncompliance is received.
The Employer further agrees not to again employ or re-employ any
person(s) so discharged until he or she is a member of the Union;
provided, however, in the event that the Labor Management Relations
Act, as amended, is applicable to this Agreement, the provisions of
this sentence of this Section 2.2 shall not be applied until a final
administrative or judicial decision has been rendered which would
permit its application under the Act.


2.3 Applicants for Membership. Membership in the Union shall be available
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to person employed in work covered by this Agreement upon terms and
qualifications not more burdensome than those applicable generally to
other applicants for such membership.


SECTION 3. EMPLOYMENT
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3.1 No Discrimination. The Employer shall have sole responsibility for
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the full freedom in the selection and employment and discharge of
persons employed or to be employed in work covered by this Agreement,
subject to the provisions of this Agreement; provided, that there
shall be no discrimination because of membership or non-membership in
or participation or non-participation in the activities of the Union.
The Employer will not discharge or discriminate against any Employee
upholding lawful Union principles such


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as serving as an officer or other representative of the Union,
soliciting membership in the Union, wearing Union buttons,
distributing Union literature or attending Union meetings provided
that such activity does not interfere with his or her work. The
Employer will not discharge or discriminate against any Employee for
failing or refusing to purchase stock, bonds, securities, or any other
interest in any corporation, partnership or company.


3.2 Hiring Notification. An Employer who desires to employ a person in
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work covered under this Agreement shall inform the Union of the number
and qualifications of persons desired, the location of the job site,
in advance of the time that such perons are required.


3.3 Hiring Consideration. In the hiring of new Employees, the Employer
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agrees that it will give equal consideration to all applicants,
including those referred by the Union. The Employer and the Union will
not discriminate compensation, terms or conditions of employment
because of such individual's race, color, religion, sex, age (to the
extent provided by law), or national origin; nor will they limit,
segregate or classify Employees in any way to deprive any individual
Employee of employment opportunities because of their race, color,
religion, sex, age (to the extent provided by law), or national
origin. Any reference to the male gender in this Contract shall be in
the generic sense and it shall refer equally to either sex without
discrimination, as provided above.


3.4 Union Notification. The Employer shall notify the Union within one
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(1) week of the name, address, Social Security Account Number and
classification of every such person employed in work covered by this
Agreement, together with the date of such employment and location of
the place or prospective place of employment. Whenever a person is
rejected for or discharged for such work, the Employer shall, upon
request of the Union, notify the Union of the reason or reasons
therefor. The notice required by this Article shall be made in writing
within forty-eight (48) hours after such request. Any Employees hired
shall report to the Union within one (1) week after the date of
employment to fill out and sign applications, forms and papers for
health and welfare, dental and pension purposes.


SECTION 4. DISCHARGE
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4.1 Prohibition Against Discharge. No Employee covered by this Agreement
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shall be suspended, demoted or discharged without just and sufficient
cause. Discharge for failure to comply with Section 2.2 of this
Agreement shall be deemed a discharge for cause. Before an Employee is
suspended for more than three (3) days or discharged, he or she shall
receive written warning of


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unsatisfactory conduct and a copy of such notice shall be sent to the
Union. Such written warning shall not be effective for suspension
actions for more than nine (9) months. The Employee receiving such
warning shall be given reasonable opportunity to rectify or change
such conduct. The notice and warning required by this section need not
be given to Employees disciplined for, but not limited to any gross
violation of reasonably acceptable conduct.


4.2 Notice From Insurance Carrier. When an insurance carrier notifies the
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Employer that the Firm's vehicle insurance is being cancelled because
of a driver's record of on-the-job driving on file with the California
Department of Motor Vehicles, that driver may be transferred to
another job, if available, where he or she shall have seniority as a
new Employee or, if no job is available, he or she may be laid-off
pending the results of the grievance procedure.


4.3 Right of Appeal. Any Employee claiming unjust dismissal, demotion or
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suspension shall make his or her claim therefor to the Union within
ten (10) working days of such dismissal, demotion or suspension and
the Union will that day notify the Employer by telephone and confirm
in writing, otherwise, no action shall be taken by the Union. If,
after proper investigation by the Union and the Employer, it has been
found that an Employee has been disciplined unjustly, he or she shall
be reinstated with full rights and shall be paid his or her wages for
the period he or she was suspended, demoted or dismissed.
Investigation of any claims shall be rode within ten (10) days of the
making of such complaint by the Employee. Any dispute arising out of
such suspension, demotion, or discharge shall be processed under
Section 19 (Grievance and Arbitration) of this Agreement.


4.4 Notification of Discharge. When an Employee is discharged, the
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Employer must give written notice to the Employee, stating the reasons
for such discharge, and the Union shall receive a copy of said notice.
Upon written notification by the Union of an Employee holding a second
job, the Employer will either terminate the employment of the Employee
or require that he or she resign his or her second job. Where an
Employee is holding a full-time second job, the Employer, five (5)
working days after written notice to the Employee requesting he or she
resign his or her second job, may terminate him or her if he or she
does not do so.


SECTION 5. HOURS
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5.1 Hours of Operation. The hours of operation of the Employer's facility
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shall be as hereunder provided and shall apply to all Employees of the
Employer covered herein. Hours worked in excess of eight (8) straight-
time hours in a day or in excess of forty (40) straight-time hours in
any week shall be paid


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at one and one-half (1 1/2%) times the straight-time rate.


5.2 Posting Requirement. All regular Employees shall have their schedule
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posed by Friday noon for the following work week. It shall not be
changed except by reason of an Act of God or other reason beyond the
reasonable control of the Employer. The schedule shall show the full
name of the Employee, the starting times and the days scheduled for
him or her during the following week in ink or typewritten.


5.3 Schedule of Shift. All first shift hours shall be regularly scheduled
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to commence no earlier than 5:00 a.m. and no later than 10:00 a.m. The
second shift hours shall commence on or after 10:00 a.m. and no later
than 5:00 p.m. The third shift hours shall commence on or after 5:00
p.m. and before 5:00 a.m. All work commenced on or after 10:00 a.m.
but no later than 5:00 p.m. shall be paid for at the rate of the
second shift premium for all hours worked. All work commenced on or
after 5:00 p.m. and before 5:00 a.m. shall be paid at the third shift
premium for all hours worked.


5.4 Guaranteed Work Week. Regular Employees shall be guaranteed payment
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for and expected to work eight (8) hours each day, forty (40) hours
for each week subject to the addition of all premium and overtime
provisions, unless such work ceases to be available by reason of an
Act of God, or other reason beyond the control of the Employer.
Employees unable to work eight (8) hours a day, forty (40) hours a
week shall provide a reasonable explanation and verification of the
reason of absence where appropriate and in compliance with the
provisions of this Agreement.


5.5 Extra Employees Work Week. Extra Employees may be scheduled to work
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less than forty (40) hours per week. Extra Employees shall be
scheduled to work in accordance with their seniority. Extra Employees
scheduled to work less than forty (40) hours shall be scheduled as
work is available.


5.6 Regular Work Week. The regular work day shall consist of eight (8)
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hours within nine (9) hours, Monday through Friday, inclusive,
provided however, it is agreed and understood that the Employer may,
during the course of this Agreement, with seven (7) calendar days
notice to the Union, institute a Tuesday through Saturday work week.
This work week shall be comprised of a regular crew and established
only for the purpose of expanding production capability. This work
week shall be offered on a voluntary basis to existing Employees and
shall not be used to reduce existing Saturday overtime opportunities.


5.7 Minimums. Five (5) days consisting of eight (8) working hours per
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day, forty (40) hours, Monday through Friday, inclusive, except as
otherwise herein


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provided, shall constitute a work week for all eligible Employees
except that during a week in which a holiday falls, the work week
shall consist of thirty-two (32) hours. Employees called to work will
be provided with a minimum of eight (8) hours work or pay in lieu of
work, such pay to start from the hour the Employee is required to
report for work, except in case of matters beyond the control of the
Employer. Employees doing security inspection or quality control shall
be guaranteed a minimum of one (1) hour work or pay in lieu thereof.


5.8 Bid on Job Shifts. Employees shall have the right to bid on job shift
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assignments in the order of their seniority except that no Employee
shall have this opportunity more often than once in every six-month
period, except when a shift is re-established Within the six (6)
months. It is understood that this privilege shall not result in chain
bumping. When a shift is discontinued, the senior Employee shall have
the right to bid on the job classification in the existing shift.


5.9 Call Back. An Employee called back to work within twelve (12) hours
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from the end of his or her shift shall be paid one and one-half (1
1/2%) his or her applicable rate for the hours worked prior to the
expiration of such hours.


5.10 Meal Periods. All Employees shall receive one (1) full uninterrupted
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hour for a meal period or by mutual agreement between the Employees,
the Employer and the Union one-half (1/2) hour, approximately in the
middle of the working day, and in no event shall an Employee work more
than five (5) hours before any meal period. In agreeing on lunch
periods, the parties will consider the requirement set by the USDA for
meat inspectors.


5.11 Rest Periods. All Employees shall receive two (2), fifteen (15)
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minute rest period in an eight (8) hour day. Employees working beyond
nine (9) hours in a day shall receive an additional ten (10) minute
rest period.


5.12 Clean Up. Sufficient time shall be allowed to clean up the Plant in
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order that the Employees may leave by their regular quitting time.


SECTION 6. OVERTIME
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6.1 Overtime Pay. All work in excess of eight (8) hours in one (1) day
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and all work in excess of forty (40) hours in one (1) week shall be
paid for at the overtime rate of one and one-half (l 1/2) time the
Employee's regular straight time rate of pay. Employees shall be paid
at one and one-half (1 1/2) for all work performed on the sixth (6th)
day of the Employee's work week. All work performed in excess of ten
(10) hours in any one (1) day shall be paid for at the overtime rate
of two (2) times the Employee's regular straight time


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rate of pay. When overtime work is scheduled for Sundays and Holidays,
such work shall be paid for at the overtime rate of (2) times the
Employee's regular straight time rate of pay (double time). All work
performed either before the Employee's scheduled eight (8) hour shift
or after the completion of his or her scheduled eight (8) hour shift,
except as provided above, shall be paid for at the rate of one and
one-half (1 1/2%) times the Employee's regular straight time rate of
pay. In the event an Employee is required to report for work earlier
than his scheduled shift starting time, the Employer shall schedule a
minimum thirty (30) minutes of work time in this period. There shall
be no pyramiding of overtime u ...