CASE-NO :AH113

DATE :10/03/81

PARTIES :HOTEL Nova Scotia HOTEL & RESTAURANT UNION

COMMENTS:

CASES# :

TEXT :

 

 

 

IN THE MATTER OF THE TRADE UNION ACT

AND THE MATTER OF AN ARBITRATION

 

BETWEEN :

THE HOTEL & RESTAURANT EMPLOYEES

& BARTENDERS INTERNATIONAL UNION

LOCAL 662

On behalf of Claudette Vincent

(hereinafter called the Grievor)

-and-

THE HOTEL NOVA SCOTIAN

(hereinhafter called the Employer)

 

 

ARBITRATOR

JUDGE J. A. MACLELLAN

Hearing Held at The Hotel Nova Scotian

on March 10, 1981

 

 

 

 

1. This is a grievance of Claudette Vincent dated December 2, 1980 wherein she

alleges that effective November 27th, 1980 her hours were reduced from forty hours to approximately twenty-eight hours per week. She states her position is presently being filled by a supervisor. She alleges a violation of Article 24.5 of the Collective Agreement and request that she be re-instated to her regular shift and claims full compensation for time lost.

In addition to this grievance the Union filed a grievance dated December 1st, 1980

also alleging a violation of Article 24.5 insofar as the alleged violation effected the grievor, Claudette Vincent.

2. Article 24.5 of the Collective Agreement between the parties reads as follows:

Employees of the company in non-scheduled supervisory positions shall not

perform or assume the duties of any scheduled position exept on an occasional and

necessary basis for the purpose of meeting the demands of service and on no

account with the purpose or effect of eliminating any scheduled position.

3. By letter dated November 24th, 1980 the grievor received a letter from Ms.

M.A. Reid, the manager of the Sambro, being a restaurant within the Hotel complex. The body of the letter reads as follows:

Please be advised that effective Saturday November 29, 1980,

your present schedule will be abolished. You may exercise your

seniority rights, in accordance with the Collective Agreement to

apply for the bulletined positions dated November 24, 1980. If

you have any questions, please donít hesitate to ask me.

4. The grievor had been employed as a Captain Waiter in the Sambro when she

received the letter from Ms. Reid. A Captain Waiter assist the customers entering the Sambro to be seated. As a result of the letter from Ms. Reid the grievor exercised her seniority rights and applied for the position of waitress in the Sambro and was succesful in her application.

5. The past practice in the Sambro was fulled detailed to this board by Tom

McCaughey and Patricia Heading former supervisors in the Sambro and now

holding other positions with the employer and Ms. Reid who is the present

supervisor. The evidence was clear from these persons that the supervisor always

assisted customers to their seats as did the Captain Waiter. The past number of years, the hotel has experienced a slump in business during the winter months. For

various reasons during the time was described by these witnesses, Captain Waiters had left their employment for one reason or an other and had not been replaced.

Ms. Heading stated that during her time as supervisor she had laid off two Captain Waiters. One in one year and one another. The reason for these lay offs were because there was not enough business to keep all of the Captain Waiters employed. In addition if they were to remain employed the supervisor would have a substantial part of time with nothing to do. It was stated that during the slack period the supervisor easily looked after the seating of customers and was also able to complete all other related duties expected of a supervisor. The evidence disclosed that previously when a Captain Waiter left a position during the slack period she was not replaced and there was no grievance filed. There was a general

consensus from all of the witnesses that the grievor and other Captain Waiters held a scheduled position.

6. Mr. Wheatley argues very strongly that the hotel business is such that they must

carry on an efficient operation when the occupancy rate is very slow. He

further argues that past practice has been to do what the company has done in this instance and there has been no grievance filed. He also argues that not- withstanding what the Collective Agreement says in article 24.5 it has been the

normal practice to reduce staff and carry on with the supervisor in that position.

7. Mr. Martell argues that the union does not dispute the right of the employer to

layoff as provided in the collective agreement. The unionís position is that the

grievor held a scheduled position and that the supervisor is in a non- scheduled supervising position clearly performing duties of the grievor. He argues that this is in direct violation of article 24.5 of the collective agreement.

Mr. Martell also states that the union does not dispute the fact of the supervisor seating guests in busy periods or emergencies. However, the union was strenuously objecting to the supervisor taking over the duties of the grievor who was in a regularly scheduled position as prescribed in article 24.5.

8. The wording of article 24.5 is clear and unambiguous. The evidence disclosed that the employer has violated this article by abolishing the work schedule of the grievor and having her work performed by the supervisor.

9. The evidence also disclosed that the grievor may not have had her hours reduced as much as was anticipated. Time cards presented for three periods after the grievance seems to indicate that in fact the grievors hours were not reduced. However, in view of the finding that the employer has violated the clear meaning

of article 24.5 the employer is ordered to re-imburse the grievor for any loss time

that may have occured as a result of the November 24th letter advising that her scheduled would be abolished.

10. At the hearing the parties agreed the matter was arbitrable and that the use of a

mechanical recorder was satisfactory and a transcript was not required unless requested.

11. At the hearing the employer was represented by Gordon Wheatley and the union

was represented by Henry Martell.

12. Dated at Kentville this 13th day of March 1981.

 

------------------------------------------------

Judge J. A. MacLellan

Arbitrator