BETWEEN:

(the "Company")

AND

(the "Union")

SOLE ARBITRATOR: H. Carl Goldenberg

A hearing in this matter was held at Montreal in March 1966.

The Chateau Laurier Hotel, Ottawa, Ont., for some years operated a cocktail lounge, known as the Jasper Lounge, with male staff employed as waiters. Because of unsatisfactory earnings, the Hotel closed the Jasper Lounge in or about November 1964. The Company then embarked on plans for a complete new lounge with a different motive and decor and providing a new service. In June and July, 1965, representatives of the Company notified the Brotherhood that the new cocktail lounge, the Cock and Lion, as a combined English and French in, would be staffed with waitresses in period costumes, instead of waiters, but at the same rate of pay, and that the waiters formerly employed in the Jasper Lounge would be able to exercise their seniority in their seniority group under the provisions of the collective agreement between the Company and the Brotherhood. The change of personnel in The Cock and Lion was effected on November 1, 1965, whereupon each of the waiters affected lodged a grievance.

Schedule A to the collective agreement between the parties lists the grouping and rates of pay of the employees to whom the agreement applies. Each group is divided into a number of classifications and the relevant positions are listed under each classification. The group in the instant case is Group 6 – Food and Beverage Service Department – which is divided into three classifications. Classification A lists three positions – Captain Waiter, Waiter, and Waiter ( Cocktail Lounge ). To give effect to its change of policy, the Company abolished the position of "Waiter ( Cocktail Lounge )" and created the new position of "Waitress ( Cocktail Lounge )".

The Brotherhood complains that this action constituted a unilateral change in the terms of the collective agreement which had the effect of depriving the waiters of seniority rights. It submits that Schedule A was negotiated by the parties and, therefore, was not subject to change unilaterally. It further submits that all previous changes to classifications had been affected by agreement between the parties. As supporting evidence, it filed, inter alia, a copy of a letter dated July 6, 1965, from the General Manager of the Company to the General Chairman of the Brotherhood, dealing with the proposed change in the cocktail lounge, which said, in part: "A memorandum of agreement will be required to be drawn up, establishing certain changes as the result of the opening of The Cock and Lion Lounge." Because of refusal by the Brotherhood, such a memorandum was not signed.

The Company denies that it is in violation of the collective agreement. It submits that in abolishing a position and creating a new position and in establishing qualifications for the new position, it exercised rights recognized by the agreement. it denies that it has destroyed the seniority rights of the waiters. It admits that it has generally followed the practice of effecting changes in positions by agreement with the Brotherhood and that it sought agreement in the present case, but it denies that it is bound to follow this practice if agreement cannot be reached on matters which lie within its authority.

It has been noted that Schedule A to the collective agreement establishes groups, classifications within each group, and positions within each classification. In the instant case, the Company did not change groups or classifications as such: it abolished a position in classification A of Group 6 and created a new position by bulletin. I find that it was exercising authority recognized by the collective agreement explicitly or by implication.

There is reference to the creation of new positions during the term of the agreement in at least three articles. Article 1.1 reads as follows: "The provisions of this Agreement shall apply to the employees of the Chateau Laurier Hotel in positions listed in Schedule A hereof and to employees who are assigned to positions similar in kind or class to those listed in Schedule A which might be created during the term of this Agreement." Article 5.2 provides for the bulletining of new scheduled positions, while Article 11.4 prescribes that: "The rates of pay for new scheduled positions shall be in conformity with the rates of pay for schedule positions of similar kind or class."

The agreement also recognizes the authority of the Company to abolish existing positions. Article 4.3 governing the exercise of seniority rights, sets out that : A displaced employee or one whose position is abolished may exercise his seniority in a classification group other than his own within his seniority group to displace an employee with less seniority provided he has the qualifications to perform the work. An employee who fails to exercise his seniority to a position in a classification group other than his own shall exercise his seniority within his own classification group provided he has the qualifications to perform the work. An employee exercising his seniority in accordance with this Article, shall, within five calendar days of the abolition of his position or his displacement, make his choice in writing, failing which he shall forfeit his seniority.

It is clear that the exercise of seniority under the agreement is always subject to the provision that the employee has the qualifications to perform the work. Article 2.1(f) defines qualifications as the ability to perform the duties of a position, including general appearance and aptitude to meet and handle the public, where required. Under "Bulletining of Positions", the agreement makes the Company the judge of qualifications, subject to the employee’s recourse to the grievance procedure. Article 5.1 says that: "Appointment under the provisions of this Article shall be made by appropriate supervisory officer of the Company on the basis of the qualifications and seniority of the applicant. The Manager will be the judge of qualifications subject to the right of appeal by the employee and/or the Brotherhood, in accordance with Article 15."

The Brotherhood submits that the action of the Company has unilaterally abridged the exercise of their seniority rights by the waiters within their own classifications, since they are precluded from applying for the position of waitress (Cocktail Lounge). While this has been the effect of the Company’s action, I note that the right to exercise seniority under Article 4.3 is not absolute. It is always subject to the provision that he has the qualifications to perform the work, and it is the Company which sets the qualifications. Except with respect to the position of waitress (Cocktail Lounge) the seniority rights of the waiters, which they have all in fact exercised, under reserve, within their seniority group, have not been affected. Considering that the collective agreement recognizes the authority of the Company in respect of the abolition of positions, the creation of new positions and judging the qualifications of employees, I find that the limitation on the exercise of seniority resulting from the ineligibility of the waiters for the new position of waitress, does not constitute a violation of the said agreement.

The fact that the Company has always endeavoured to reach agreement with the Brotherhood on proposed changes and that such agreement has generally been reached, is to the credit of both parties. It is a practice which, as far as possible, should be maintained. I do not find, however, that the practice has established a usage which has had the effect of modifying the rights of either party under the terms of the collective agreement.

For the foregoing reasons, the grievance is dismissed.

Signed at Montreal, Que., April 13, 1966.

Arbitrator

COMMENTARY: This case confirms a Company position that the right to exercise seniority is not absolute but is always subject to the judgment of qualifications and it is the Company which establishes and judges these qualifications. The Arbitrator also ruled that the established practice by the Company of attempting to reach agreement with the Brotherhood before introduction of changes did not modify the right of the Company to take unilateral action in the absence of such agreement.