Reorganization had salesmen doing more in-store work, an area unionized workers usually looked after
This instalment of You Make the Call features a dispute over the definition of bargaining unit work in a collective agreement.
The Pepsi Bottling Group had a collective agreement with its union for delivery and distribution employees in Saskatoon. The agreement specified that employees who weren’t members of the bargaining unit could not perform work customarily performed by bargaining unit employees unless there was no other option due to an emergency or absence.
Typically, Pepsi had driver/merchandisers deliver its product to stores in Saskatoon. The driver/merchandisers drove the delivery trucks and unloaded them to storage areas in the stores. They were usually followed by chase merchandisers, which would stock the shelves in the store and perform other in-store duties such as rotating product, building displays and filling holes on the shelves. Occasionally, salesmen, who were not part of the bargaining unit, would do some shelf merchandising work if they came to a store and noticed a need for restocking or arrangement of displays.
In 2008, Pepsi reorganized its sales staff so they could do fewer calls and spend more time with clients. Because they spent more time at stores, they often fully stocked the shelves. At the same time, Pepsi reassigned a chase merchandiser into a driver/merchandiser position as the increased stocking by salesmen eliminated the need for one driver/merchandiser position. Though salesmen were spending about one-half of their time doing shelf merchandising and there was a reduction of driver/merchandisers, the number of bargaining unit members actually increased because sales to large stores increased.
The union filed a grievance, claiming the work of driver/merchandisers had been reassigned to salesmen, contrary to the collective agreement’s provision prohibiting non-union members doing the work of union members. The union argued if the shelf merchandising work had not been given to salesmen, there would be another driver/merchandiser position to do the work.
You Make the Call
Did Pepsi violate the collective agreement by assigning merchandising duties to salesmen?
Was Pepsi allowed to assign some of the merchandising to salesmen?
If you said it was permissible for Pepsi to give some of the merchandising duties to salesmen, you’re right. The board found salesmen performing merchandising work was not new and they had done some before the reorganization. The collective agreement specified work “customarily” performed by bargaining unit members was to be only performed by bargaining unit members. This, said the board, implied that circumstances where non-bargaining unit employees performed the work would be rare. However, salesmen had always performed merchandising work in stores to some extent.
Therefore, the board found the overlapping of salesmen and bargaining unit members stocking shelves meant it could not be considered work only performed by bargaining unit members. The board also noted no bargaining unit members lost their jobs because of the reorganization and, in fact, more jobs were created. As a result, the integrity of the bargaining unit had not been adversely affected by the overlapping of duties, said the board.
The board also found Pepsi’s decision to reorganize was a legitimate business decision and there was no bad faith. The grievance was dismissed.
“The concept of work customarily performed by members of the bargaining unit would imply that performance by non-bargaining unit personnel would be uncommon or contrary to custom,” said the board. “That, however, is not the case as the evidence was uncontradicted that salesmen have always been engaged in merchandising and, in particular, have been involved in stocking shelves.” See R.W.D.S.U., Local 558 v. Pepsi Bottling Group (PBG), 2009 CarswellSask 807 (Sask. Arb. Bd.).