AH – 24
IN THE MATTER OF AN ARBITRATION
Canadian National Hotels Limited
Canadian Brotherhood of Railway, Transport and General Workers
IN THE MATTER OF THE GRIEVANCE OF Lois Lawrence, Juliette Dupuis and Francoise Acker CONCERNING COMPULSORY OVERTIME
SOLE ARBITRATOR: Hon. C.A. Cameron, Q.C.
There appeared on behalf of the Company:
N. A. McLean – Labour Relations Assistant, Personnel and Labour Relations Dept.
M. F. Craston – Manager, Chateau Laurier Hotel
B.Turner – labour Relations Supervisor, Hotel Dept.
L.Monfils – Assistant Manager- Personnel, Chateau Laurier Hotel
And on behalf of the Union:
J. R. Greely – General Chairman of the Brotherhood
L. St. Pierre – Local Chairman
G. Danis – President of the Local
A hearing in this matter was held at Montreal on May 14, 1981.
The parties to this arbitration entered into a collective agreement ( Exhibit 2 ) covering certain employees of the Chateau Laurier Hotel, Ottawa, dated February 22, 1963, and effective for a period of three years from March 1st, 1963. The agreement covered, inter alia, the waitresses in the Auberge Coffee Shop, including the grievors, Mrs. Lois Lawrence, Miss Juliette Dupuis and Mrs. Francoise Acker. At the hearing it was agreed that the grievance procedure set out in Article 15 of the agreement had been properly carried out. This dispute being unresolved resort was had by the Brotherhood to the arbitration procedure found in Article 16 but the parties being unable to agree on a choice of an arbitrator, I was appointed as sole arbitrator by the Minister of Labour for Canada (as provided in Article 16.3) to determine the issue.
The regular staff at the Auberge consists of three hotesses, 15 waitresses and 13 bus boys. For the waitresses there are three shifts; two of these shifts are of height consecutive hours exclusive of the full meal period; and on the date in question, namely, June 23rd, 1964, the night shift was from 1:30 p.m. to 10:00 p.m. The third shift was a split shift, the regular hours of which by the terms of Article 6 of the agreement were limited to eight hours work within a spread of twelve consecutive hours on any day. It is agreed that those hours on that date, after allowing for a meal period from 10:00 a.m. to 11:00 a.m. were from 8:00 a.m. to 2:00 p.m. and from 5:00 p.m. to 8:00 p.m., thus falling within a spread of twelve consecutive hours on any day.
Prior to 7:45 p.m. on that date there had been no rush of business in the Auberge. There had been five waitresses on the split shift but one had finished her tour of duty at 7:30 p.m. and had left. Another at left before 7:45 p.m. without notifying the hostess Mrs. Rietta Courtemanche. At about 7:45 p.m. there was quite a rush of new customers and everything became busy in the opinion of Mrs. Courtemanche. She felt that in addition to the three waitresses remaining on the night shift whose tour of duty would expire at 10:00 p.m. it would be necessary to have at least two waitresses on the split shift work overtime beyond 8:00 p.m. for a period not exceeding one-half hour in order to give adequate and prompt service to the customers. The Auberge closes its doors at 9:00 p.m.
Accordingly Mrs. Courtemanche requested the three waitresses in the order named above to work overtime (i.e. – after 8:00 p.m.) for a short time to meet the emergency, but each in turn refused to do so for reasons which I shall deal with individually. In the result Mrs. Courtemanche felt obliged to assist in waiting on tables herself which was not part of her duties, she being in charge of the Coffee Shop.
On the following day the three grievors after working part of their split shift were called to the office and because of their refusal to work overtime were suspended for three days and went home. The Brotherhood on their behalf unsuccessfully protested the suspension and now asks that they be compensated for the hours lost as a result of the suspensions.
There was a considerable discussion at the hearing as to whether those working on a split shift were or were not working on regular assignment (Article 7.1 relating to overtime) but finally Mr. Grealy agreed that the spilt shift was a regular assignment. I think he was right in so doing as the assignments to that shift are bulletined and filled in accordance with Article 5 – Bulletining of Positions. In my opinion it follows that the provisions of Article 7 relating to overtime, overtime pay etc. are applicable equally to those employees on split shifts as well as to those on other regular shifts. Indeed as shown by Exhibit 5 a small amount of overtime had been worked from the opening of the Auberge in January, 1964, averaging 2.56 hours per employee for the first seven months in 1964, apparently with the full approval of the employees. As provided in Article 7 overtime in such cases is paid for at 1-1/2 times the hourly rate.
The main contention advanced on behalf of the Brotherhood is that while employees, if they wish so, may work overtime when requested to do so by Management, they cannot be required or compelled to do so; and if they refuse such a request they are not subject to a penalty. It is clear from a reading of the Union’s brief and the submissions made that the Union wishes to establish another shift of waitresses on the ground that the Auberge is understaffed. It is worthy of note also that on this occasion all split shift workers either left before 8:00 p.m. or declined to work overtime for a short time thereafter to meet an emergency, whereas previously there had been no difficulty in securing such waitresses to work overtime for a short period of from five minutes to half an hour – or longer if needed.
In my opinion since split shift waitresses are on a regular assignment, and overtime and penalty pay therefore are clearly provided for in the contract for all regular assignments, Management has the right in endeavouring to maintain the efficiency of such an operation to require waitresses to work a reasonable amount of overtime when, in its opinion. the need arises, unless the employee has a reasonable and truthful reason for declining to do so. I have read the agreement as a whole and have come to the conclusion that while the matter is not fully spelled out such an interpretation is implicit in the agreement; and I am fortified in my view that such is the case because the parties themselves by their conduct prior to the date in question had so interpreted it. It seems to me therefore that while the provisions for the standard work week provide for a normal schedule the contract contains no prohibition of work beyond it, but rather contemplate that there will be occasions when overtime will be required and will be worked. In this connection reference may be made to (1) International Association of Machinists, in re the Timken Roller Bearing Co., 1951 L.A.C. p. 693; and (2) United Steel Workers and Algoma Steel Corporation Limited, 1961 L.A.C. 118.)
Mrs. Courtemance gave evidence for the hotel, refreshing her memory from a report made on the same date (Exhibit 6 ). She was an excellent witness and while still a member of the Brotherhood although now employed in another department of the hotel, gave her evidence with frankness and was not shaken in cross-examination. I preferred her evidence as to what occurred on the evening of June 23rd.
Re: Mrs. L. Lawrence – Mrs. Courtemanche states that when this waitress was asked to do overtime she replied that as she had been refused an extra day off on an earlier occasion, she refused to work overtime. She denies that Mrs. Lawrence told her – as alleged by the latter – that she was not feeling well and consequently would not remain. I prefer the evidence of Mrs. Courtemanche both as to the fact that there was a ‘rush’ of customers at that time and as to Mrs. Lawrence’s assigned reason for refusing to work overtime – a reason which I think was wholly unreasonable. This grievance will therefore be rejected.
Re: Miss Juliette Dupuis – This witness, an employee for 18 years, says that she was ordered to stay overtime but that she refused to do so as someone was waiting for her and ‘I had to go’. This witness was rather vague in her evidence but did admit that when she left she had not finished her attendance on certain customers but gave her checks to another waitress. Mrs Courtemanche agrees that Miss Dupuis did refuse to work overtime on the ground that someone was waiting for her and that it was well known that her boy friend was in the habit of calling her. In my view this was a wholly unsatisfactory reason for declining to stay for a very short time in the emergency facing Management, with a rush of customers at 7:45 p.m. I therefore dismiss the grievance.
Re: Mrs. Francoise Acker – This witness has been employed at the hotel since December, 1963 and in the Auberge since it opened. She has often worked overtime before and after the date in question. She says she refused Mrs. Courtemanche’s request to work overtime on the ground that her feet were very sore and Mrs. Coutemanche agrees that was so. At the hearing the grievor said that she had been wearing a new pair of shoes that day and as a result here feet were sore. She said that Mrs. Courtemanche was a reasonable supervisor and was always co-operative. There is no evidence to corroborate Mrs. Acker’s statement that her feet were too sore to enable her to work overtime or that her shoes did not fit and it may well have been given merely as an excuse. Having worked all day without any great difficulty there was, it seems to me, no good reason for refusing to work a short period of overtime in the emergency. It is apparent that Mrs. Coutemanche did not believe the excuse offered was truthful and this grievance therefore will be dismissed.
In the result therefore I find that in all cases Management was justified in disciplining the grievors and the Brotherhood has taken no objection to the length of the suspensions.
The Brotherhood also referred me to a brochure issued by the Industry and Labour Board of the Province of Ontario, as to Hours of Work and Vacations with Pay Act, and its regulations.
It concludes a reference to the Regular hours of work and to Overtime in the hotel industry. I am of the opinion that this regulation is of no effect in the instant case as the employees of the Chateau Laurier fall under Federal jurisdiction; in any event the regulation submitted does not seem to affect in any way the overtime here in question.
Ottawa, May 27, 1965. Chas. A. Cameron