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HomeMy WebLinkAboutVacca 05-06-13 '.. :',:, IN THE MATTER OF AN ARBITRATION BETWEEN: '. CASINO NIAGARA - and - (the "Employer") ONTARIO PUBLIC SERVICE EMPLOYEES UNION on behalf of its Local 278 (the "Union") AND IN THE MATTER OF THE GRIEVANCE OF A. VACCA - ARTICLE 3.02 OPSEU FILE # 03-278-122 AWARD Board of Arbitration: Paula Knopf, Chair Clay Appleton, Employer Nominee Edward E. Seymour, Union Nominee APPEARANCES: For the Employer Simon E. Mortimer, Counsel Paul Pingue Richard Paris For the Union Mitch Bevan, Grievance Officer A hearing in this matter was held in Niagara Falls, Ontario on May 17, 2005. This grievance challenges a personal appearance and grooming policy which prohibits male personnel from wearing earrings on duty. The Union alleges that the policy is unreasonable and discriminatory. The Employer asserts that the policy is based on legitimate business interests and does not offend the Human Rights Code. The parties agree that this Board of Arbitration has jurisdiction to deal with the matter. Both parties elected not to call evidence but to proceed by way of a stated case. The background facts are not complex. The Employer operates a casino and hotel facility. This is a bargaining unit of security guards. The Employer has published a personal appearance and grooming policy which deals with uniforms, clothing and grooming. The policy is consistently enforced and the Union agrees that the Employer has the right to maintain and enforce a reasonable appearance and uniform policy. The only aspect of the policy that the Union challenges in this case is the portion that proscribes male personnel from wearing earrings. The relevant part of the policy provides: GROOMING Proper grooming and hygiene goes hand in hand with personal appearance and is essential in our continued efforts to maintain proper sanitary conditions. You are expected to be clean when you report to work and are required to comply with department and company policy on this subject. A. MALE PERSONNEL All uniform personnel will be clean shaven at all times while working, which is representative of the image desired by this department and Casino Niagara. Moustaches are authorized, and if worn, will be neat, trimmed and not cover the upper lip nor extend below the corners of the mouth. Hair will be neat, combed, trimmed and shall not extend below the bottom of . i " I ¡ "'I, -.,; 2 the shirt collar in the back nor below the eyebrows in the front. Sideburns will be neat, trimmed and must not extend below the bottom of the ear. Earrinas will not be worn on duty. B. FEMALE PERSONNEL All female personnel employed by this department will ensure their hair is neat, clean and worn in a casual style which is conducive to the wearing of the security uniform. When wearing the security uniform, hair shall not extend more than one inch below the bottom of the shirt collar in the back nor below the eyebrows in the front. The wearing of hair nets, stockings, headbands or similar ornamentation is not authorized. One earrina in each ear is permitted. They must be stud type with the stone or ornamentation not exceedina 1/4" in diameter. Makeup should be moderate. [Emphasis added] The Union asserts that prohibiting men, but not women, from wearing earrings is discriminatory and that it violates Article 3.02 of the Collective Agreement that provides that the employees have the "rights. . . . under the Human Rights Code". The Union also argues that the rule is unreasonable and in violation of Article 4.01 (e) of the Collective Agreement which allows the Employer to "make, enforce and alter from time to time reasonable policies, rules and regulations to be observed by the employees". The Union suggests that the Employer is simply imposing a sense of style upon the male employees. This argument is advanced because the Employer does not suggest that there is any health and safety problem with the wearing of earrings because female personnel are allowed to wear earrings of a prescribed style. The Union accepts that the same prescriptions on style could be applied to the men. The Union also points out that the Employer has failed to call " 3 '.~ any evidence to support its claim that there may be a legitimate business interest in prohibiting the wearing of earrings by male employees. While it was conceded that some customers may not take favorably to seeing male staff members with earrings, it was stressed that the Employer has failed to call any evidence to suggest that it would lose any business if any of the male security guards wore earrings. In support of its submission, the Union relied on the following cases: Re Wardair Canada Inc. and Canadian Air Une Flight Attendants' Association (1987) 28 LAC. (3d) 142 (Beatty); Re Thrifty (Canada) Ltd. and Office and Professional Employees International Union, Local 378 (2001) 100 LA.C. (4th) 162 (Larson); and Re Co-op Centre Ltd. and Retail, Wholesale & Department Store Union, Local 1065 (1990) 17 LAC. (4th) 186 (Collier). The Employer argues that the policy prohibiting male security guards from wearing earrings is based on rational business interests. Stressing that it operates a business involving a casino and a, hotel operation, the Employer ,argues that it has the right and the responsibility to present a "crisp and professional face to its customers". It was stressed that personal image is an important factor in this competitive industry. It wàsargued thaHhe existence of the appearance policy as a whole demonstrates that the image of a male security guard wearing an earring is not part of the appearance that the Employer wants to project. Counsel described the desired image to be "button-down", and argued that the picture of a male with an earring is inconsistent with that image. Counsel for the Employer argued strenuously that the rule does not impinge significantly on the employees' individual rights. The male employees are allowed to wear the earrings during any of their off-duty hours, during their breaks or during lunch time. The rule only affects when they are on duty. Further, it was said that it would be easy for the employees to remove or reinsert their earrings. Accordingly, it was argued that this policy should not be looked at as strictly as an appearance policy that might affect an employee's personal life, such as a policy regarding length of hair and beards. . ";/ # 4 The Employer relies on the National Steel Car Ltd. and United Steel Workers of American, Local 7135 (1998) 76 LAC. (4th) 176 (Craven) case to establish that an employer has a legitimate business purpose in setting personal appearance standards and to present a clean and professional image. The Employer also relied upon the case of Canada Safeway Ltd. and United Food and Commercial Workers, Local 1518 (1998) 74 LAC. (4th) 306 (Kelleher), which contained a survey soliciting customers' views about "what would detract from cleanliness and neatness". Nineteen per cent felt that males with earrings would detract. The Employer argues that given the limited impact of the "no earring" policy on the members of the bargaining unit, there should be a lesser burden of proof in order to establish that it has a legitimate business interest to justify the rule. Finally, the Employer answered the allegation of discrimination by making reference to the Supreme Court of Canada's decision in Law v. Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497. That case sets out the principles that should be applied to an analysis of allegations of discrimination. In a nutshell, the Employer argues that while there may be a gender-based distinction imposed by the appearance policy in this case, that distinction does not amount to discrimination because the male members of the bargaining unit are neither vulnerable nor being disadvantaged as a group. The Board of Arbitration was asked to impose the Supreme Court of Canada's "purposive test" and determine that the facts in this case do not warrant a finding of discrimination. In the alternative, the Employer argued that if there is a finding that the appearance policy is either unreasonable or discriminatory, the Board of Arbitration should simply make a declaration of such and allow the Employer to determine what, if any, replacement rule would be appropriate. By way of reply, the Union asked the Board of Arbitration to declare that the existing policy is unenforceable and that men be allowed to wear " 5 earrings. Further, the Union argued that the desire of the male members of the bargaining unit to be able to wear earrings is an important enough right to be declared to be discriminatory under the Human Rights Code. Finally, the Union argued that the survey that the Employer relied upon from the Canada Safeway case, supra, is not relevant to the situation at hand. Or, in the alternative, it points out that the same survey indicates that 15% of the customers also disapproved of female employees wearing earrings in terms of cleanliness. THE DECISION In some ways this case is very simple. The parties agree that the Emp10yer has a legitimate business interest in formulating and enforcing a personal appearance and grooming policy. The Union does not attack the existing policy in this case, except with regard to the policy's prohibition against male personnel wearing earrings. Further, the Union accepts the policy's restrictions on the styles of earrings for women. Further, the parties agree that we have jurisdiction to deal with this matter both in terms of the claim of discrimination and in terms of determining whether the rule is reasonable. We turn first to the question of whether or not the policy is reasonable. In answering this question, it is important to point out that the Board of Arbitration is not being asked to articulate its own views as to whether or not it is appropriate, attractive or undesirable for the male security guards in this bargaining unit to wear earrings. Our task is simply to determine whether this is a reasonable rule in the context of this bargaining unit. The case law cited to us by both parties makes it clear that an employer has the right to preserve its public image by regulating employees' personal appearance. However, this interest is balanced against the individual employee's interest in determining his/her own appearance. But it is also recognized that an employee has an interest in determining his/her own ~- "'" .. , . 6 appearance. Rules that would impose upon an individual employee's life outside of the workplace are looked at much more strictly. Arbitrators apply more scrutiny to personal appearance policies regarding length of hair and beards than they would policies regarding jewelry. However, the cases are also consistent in holding that there is a requirement that an employer provide objective evidence that its policy is designed to prevent an adverse impact on its legitimate business interests. It is not outside the realm of possibility that some customers of Casino Niagara may not appreciate seeing male security guards wearing an earring. However, the Employer has presented no objective evidence that wearing an earring would have any adverse impact on this business operation. It is insufficient for the Employer to simply assert the proposition that the rule is necessary to maintain the "crisp and professional" image that it desires. The concept of a man wearing an earring is not in itself so atypical an event that we can take judicial notice that the earring would damage the image of the Employer. The survey that the Employer relies upon in the Canada Safeway case, supra, cannot be relied upon to support the Employer's case. That survey was taken in a different business context and it is dated. Therefore, it does not assist in the determination of this case. In addition, no health and safety concerns have been raised about earrings per se. We note that the female security guards are allowed to wear specific types of earrings on duty that would not pose a safety risk. Accordingly, absent any actual evidence of potential or direct adverse impact, the Employer has simply failed to establish that the rule is reasonable. As a result, we must declare that the current rule is unreasonable in that it prohibits male members of the bargaining unit from wearing earrings. We declare that this aspect of the policy must be deleted. . 7 Having made this finding, it is unnecessary for the Board of Arbitration to deal with the allegations of discrimination. We do note, however, that the Law v. Canada (Minister of Employment and Immigration) case, supra, is an important case for the parties to consider. For the foregoing reasons, the grievance is allowed. The policy is declared unreasonable insofar as it prohibits the male members of the bargaining unit from the wearing of earrings. DATED at TORONTO this 13th day of June, 2005. "I dissent" - Dissent to follow Clay Appleton, Employer Nominee "Edward E. Seymour" -I concur Edward E. Seymour, Union Nominee '> "'" . '<',.. . '~