LOU specified rules regarding use of outside labour
ON MULTIPLE occasions, workers at a poultry plant were told to leave work while outside contractors were brought in, leading to a grievance.
Employees of Rossdown Natural Foods in Abbotsford, B.C. worked in various departments (live end, evisceration, cut and pack and shipping) while chickens were processed.
Certain departments were sometimes temporarily laid off depending on the workflow coming through other departments.
To help better manage the workflow, the employer often employed outside contractors to work — mainly in the live end and evisceration departments — although the number of contractors continued to decline due to automation.
During negotiations for the 2019 to 2021 collective agreement, the use of contractors was clarified after mediation on Aug. 7, 2018.
“The company agrees to not contract out bargaining unit work that results in the layoff of a bargaining unit employee, or in a reduction of their regular hours of work,” said article 18.8.
A further letter of understanding (LOU) was attached that recognized contracting will continue but “the company agrees it will not use contract labour in a manner that erodes the bargaining unit or reduces the regular daily hours of an employee in the department where contract labour is utilized.”
But in the early months of 2019, workers in the evisceration and cut and pack departments were sent home, while contract employees remained on the job. The workers received less than a full day’s pay.
The United Food and Commercial Workers union (UFCW), Local 1518 filed three grievances that alleged Rossdown violated the collective agreement.
The employer should have used workers from another department before deploying the contactors, said UFCW, which would comply with the final paragraph of the LOU. “Further contract labour will only be utilized after any qualified employees on the recall list have been given an opportunity to
perform such work.”
However, the agreement only called for workers in the same departments to replace laid off workers, not from other departments, said Rossdown.
Arbitrator James Dorsey partially disagreed and upheld two out of three grievances.
“Within a department ‘where contract labour is utilized’ on any day it cannot be used in a manner that ‘reduces the regular daily hours of an employee.’ Because this happened in the cut and pack department group grievances 19-0167 and 19-0192 are allowed.”
However, the other grievance was denied because workers in the evisceration department were sent home, while contract workers were employed in the cut and pack department.
“The language in the final paragraph in LOU does not contemplate utilizing employees and contract labour on the same production day and having any qualified employee in any department displace contract labour to avoid a reduction in regular daily hours. That situation is contemplated and addressed in the second limitation in the preceding paragraph and is expressly confined to bargaining unit employees working alongside contract labour in the same department being able to displace contract labour to avoid a reduction in regular daily hours. Therefore, I conclude the fact pattern presented by group grievance 19-0155 is not covered by the limitations on the use of contract labour in LOU,” said Dorsey.
“The limitation in the final paragraph of LOU contemplates a circumstance when the employer has a choice to use contract labour or recall a laid off qualified employee with recall rights in a different department. Under the second limitation in the preceding paragraph, the employer cannot use contract labour in a department if there is an employee laid off in that department.”
Reference: Rossdown Natural Foods and United Food and Commercial Workers union, Local 1518. James Dorsey — arbitrator. Keith Murray for the employer. Chris Buchanan for the employee. Aug. 9, 2019. 2019 CarswellBC 2349
