Award Number 99-021

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Award Date:	1999-11-23
Arbitrator:	Knopf, P. View awards by Knopf, P.
Municipality:	Waterloo View awards from Waterloo
Region:	South West View awards from South West
Classifications:	Grievance Procedure, Management Rights, Privacy, Arbitrability, Arbitrability
Grievor:	Association
Appearances:	I. Roland, for the Association A. Millikin, for the Employer
Length of Award:	43 pp
Collective Agreements Cit.	Art. 2, 19, 23; Appendix B
Statutory Cit.	Police Services Act ss. 25, 31(c), 41(1)(a), 123(1), 124(2), 126; Labour Relations Act

Summary

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Grievance Procedure   Beard policy – Association referring grievance to arbitration without first processing it through grievance procedure – Statutory requirements of Labour Relations Act and Police Services Act distinguished – s. 124(2) of Police Services Act creating dispute resolution scheme “in addition” to grievance procedure under collective agreement – Direct submission to arbitration not bar to arbitrability.

Management Rights   Management rules – Reasonableness – Uniform members – Beard policy – Requirement that employer rules with disciplinary consequences be reasonable – Blanket prohibition against wearing of beards by uniform officers not reasonable – No health and safety rationale or legitimate business interest demonstrated – Grievance allowed.

Privacy   – Personal appearance – Uniform members – Beard policy – Policy prohibiting wearing of beards by uniform officers except for religious purposes, medical need or special investigations – Employer having right to make policies affecting personal appearance – However blanket prohibition unreasonable – Absence of cogent business reasons or health and safety rationale – Grievance allowed.

Arbitrability   Statutory limitations – S. 126 of Police Services Act not precluding arbitrator’s jurisdiction to determine reasonableness of beard policy – OCCOPS not having exclusive jurisdiction – Grievance arbitrable.

Arbitrability   Jurisdiction of arbitrator – Uniform members – Beard policy – Dispute arising from collective agreement – Case law requiring that company rules with disciplinary consequences be reasonable – Arbitrator having jurisdiction to determine reasonableness of beard policy.

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Facts

The Board had a policy prohibiting the wearing of beards or goatees by uniform officers, except for medical or religious reasons or if required as part of a special investigations unit. The Association challenged the policy as being unreasonable and discriminatory, contrary to the management rights clause of the collective agreement, Art. 2.

Article 2 required that an employee could only be discharged or disciplined with "reasonable cause". Article 19 gave the Board the authority to enact by-laws and regulations which could be challenged through the grievance procedure only if they offended the collective agreement or the Police Services Act. Article 23 of the collective agreement provided that all complaints and grievances were to be dealt with under Appendix B, the grievance procedure.

In this case the Association proceeded directly to arbitration, which formed one of the Board's preliminary objections. The Board also claimed that the grievance was inarbitrable because OCCOPS had jurisdiction, and because of the background context - viz. a discipline case involving one officer who had defied the policy. At the time of arbitration that officer's discipline was under appeal to OCCOPS.

Argument

The Board argued that the grievance was inarbitrable on several grounds. First, the Association had bypassed the grievance procedure. Secondly, the grievance didn't involve the interpretation, application or administration of the collective agreement; rather the difference between the parties arose from "other causes", which meant that it had to be referred to OCCOPS. The Board submitted that OCCOPS had exclusive jurisdiction to determine the validity of the beard policy. In the Board's view, the Police Services Act created a statutory scheme whereby OCCOPS and the Solicitor General had exclusive power to review and adjudicate matters within the disciplinary code and policy aspects of a police service. The Association argued that s. 124 of the Police Services Act gave it the right to refer a grievance directly to arbitration. The Association submitted that it wasn't challenging the discipline of the constable who defied the policy; instead it was seeking a ruling on the reasonableness of the policy itself. OCCOPS might have overlapping, but not exclusive jurisdiction. The reasonableness of rules could be challenged at arbitration. On the merits, the Association adducced evidence to the effect that of 21 municipal Ontario forces, only 3 had policies prohibiting beards. There was no health and safety objective, in that there was no equipment that officers were required to wear that would be impeded by beards. There was no evidence of any legitimate business reason or community rationale for the blanket prohibition. Therefore the policy was unreasonable. The Board countered that the Service had the authority to regulate hair and appearance. Nothing in the collective agreement required that management policies be reasonable. However, in the Board's submission the policy was reasonable and it reflected community preferences.

Award #

The Arbitrator dismissed the Board's preliminary objections and ruled that the grievance was arbitrable. In contrast to the Labour Relations Act, s. 124 of the Police Services Act created a dispute resolution scheme that was explicitly stated to be "in addition" to the grievance procedure under the collective agreement. There was no procedural bar to arbitration. On the question of exclusive versus overlapping jurisdiction with OCCOPS, the Arbitrator found that while OCCOPS might have jurisdiction, nothing in the statutory framework led to the conclusion that such jurisdiction was exclusive. OCCOPS would be ruling on the constable's discipline case, but that wasn't the issue at arbitration. The issue here was whether the policy (that led to discipline) was unreasonable and contrary to the collective agreement. The Arbitrator found that as a matter of "labour relations and arbitral jurisprudence", the issue of the reasonableness of a rule with disciplinary consequences was arbitrable. The "difference" between the parties involved the administration of the collective agreement; thus it fit within the realm of a labour relations arbitrator's expertise. For those and other reasons, the grievance was arbitrable.

On the merits, the Arbitrator found that in this collective agreement a standard of reasonableness could be implied from the just cause provision. The reasonableness standard applied to policies that could form the basis of discipline. The Arbitrator noted that management had a right to formulate personal appearance policies. However, as found in the Borough of Scarborough case, the onus was on the Employer to establish health and safety or "legitimate and cogent" business reasons for policies affecting personal appearance. The Board in this case failed to meet that onus. There were no health and safety reasons: officers weren't required to wear special equipment that might be impeded by beards. It was insufficient for the Board to simply say that clean shaven officers were consistent with the profile it was trying to project, without offering objective evidence that a bearded officer would be inconsistent with the desired image.

In other words, the Board had not demonstrated that there was any legitimate rationale for a blanket prohibition. The beard policy was unreasonable because there was no objective basis for it, and it subjected employees to disciplinary sanctions while significantly imposing upon their individual rights.

Grievance allowed.

Authorities Cited

* Deeks v. Saanich (District) Police Board (1995), 5 W.W.R. 206 (BCSC)
* Carpenter and Vancouver Police Board (1986), 18 D.L.R. (4th) 585 (BCCA)
* British Columbia v. Tozer (1998), B.C.J. No. 2594
* Waterloo Regional Police Services Board and Waterloo Regional Police Association (O'Reilly - nee Moule) [# 98-0010] (April 16, 1998) unreported (Haefling)
* Metropolitan Toronto (Municipality) v. C.U.P.E. (1990), 74 O.R. (2d) 239
* Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police (1978), 88 D.L.R. (3d) 671 (S.C.C.)
* Trumbley et al. and Fleming et al. (1986), 55 O.R. (2d) 570 (C.A.)
* Re Borough of Scarborough and International Association of Fire Fighters, Local 626 (1972), 24 L.A.C. 78 (Shime)
* Re Canadian Freightways and Office & Technical Employees Union (1995), 49 L.A.C. (4th) 328 (Korbin)
* Re Dominion Stores and United Steelworkers of America (1976), 11 L.A.C. (2d), 401 (Shime)
* Union Carbide Corporation and Oil, Chemical and Atomic Workers International Union, Local 3-550, 82 L.A. 1084 (Goldman)
* Charlottetown (City) and Charlottetown Police Association (Aug. 15, 1996) (P.E.I. S.C.)
* Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association (1981), 124 D.L.R. (3d) 684
* OCCOPS Decisions:
Hopviavuri v. Waterloo (Nov. 20, 1982)
Thompson v. Chatham (1977)
Murphy v. Metro Toronto (1983)
Cameron v. Ottawa (1975)
Alexander v. Metro Toronto (1973)


** Award 99-021 selected for publication in Labour Arbitration Cases.

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