Employer didn't like representative spending every Wednesday in lunchroom
A British Columbia employer’s decision to deny a union representative access to an employee lunchroom every week to meet with employees was unreasonable and contrary to the collective agreement, an arbitrator has ruled.
The employer operated a full-service resort hotel and conference centre in Harrison Hot Springs, BC. The union represented more than 200 employees at the hotel.
The collective agreement included a provision allowing a “properly authorized representative of the union to investigate the standing of all employees’ conditions” and allowing the hotel to require such a representative to substantiate their status as a union representative. The union representative was required to notify the hotel in advance and the hotel could not unreasonably deny access of the property.
For about 30 years, the union representative who undertook the role was a former employee who lived nearby. When she retired, the union assigned several members who had a 1.5-hour drive to the hotel, so they visited the property less frequently. They also did not have a regular schedule for when they came to meet with employees about specific or general workplace concerns.
Sometimes, employees met with representatives away from the property before or after shifts. They also met in the employee break room or designated smoking area at the hotel.
Employee-union visits stopped in pandemic
When the pandemic hit in 2020, the impact on the hospitality meant that many employees were laid off or weren’t working much. There wasn’t much need or opportunity for the union to meet with employees at the hotel, so such visits became nearly nonexistant.
In November 2022, a new general manager started at the hotel, while the union selected a room attendant to be the new representative because she could provide more contact and service to employees there. The union informed the hotel that this worker would be on an unpaid leave of absence each Wednesday to attend to union business. She would also require access to the hotel’s property as an authorized union representative.
The worker started meeting with employees for a full shift on Wednesdays in a staff lunchroom. However, the hotel believed that her presence for an entire shift was excessive – previous union representatives had met with employees in the lunchroom, but not on a weekly basis for such a long time.
The hotel offered alternate arrangement for the worker to meet with employees, but the union didn’t accept them. The hotel then denied the worker access to the lunchroom to meet with employees on Wednesdays.
The union grieved, claiming that the hotel was violating the collective agreement’s stipulation that an authorized union representative would not be unreasonably denied access to the property in order to investigate the status and concerns of employees.
Lunchroom not workplace
The arbitrator noted that this was not a situation where the union wanted access to places where employees work and union business should be interpreted broadly as anything related to the union’s responsibility to service its bargaining unit and supervise the collective agreement.
The arbitrator also noted that the collective agreement’s access provision “encompasses all matters of union business” and there didn’t have to be a specific event or grievance.
The arbitrator found that the union determined that employees needed to have more direct access to a union representative after a break in such contact during the pandemic. It was also important to note that a new round of collective bargaining would be starting soon, so it made sense that the union felt it important to have more contact with its members, said the arbitrator.
In addition, the union had notified the hotel of the new representative and the hotel initially allowed her access to the employee lunchroom – a place where it had allowed union representatives repeatedly and frequently in the past, the arbitrator said.
No interference in employe’s operations
The evidence indicated that the worker was pursuing union business during her weekly visits, and she had weekly union leave to do it. It was possible that the need for weekly visits in the lunchroom might change, but there had not been an adequate opportunity for the union to determine whether the regularity and frequency of the visits met the needs of employees in the circumstances, the arbitrator said.
The arbitrator also found that there was no evidence that the worker’s access to the lunchroom for union business for a full shift every Wednesday interfered with the hotel’s operations or affected the worker’s job duties, or that she had done anything wrong.
The arbitrator determined that the hotel’s denial of access to the employee lunchroom was unreasonable. The hotel was ordered to allow the worker access as the union’s authorized representative in order to meet with bargaining unit members. See Unite Here! Local 40 v. Aldesta Hotel Group Co., 2023 CanLII 19171.
