Dress code changes not uniform requirements

The employer changed its policy of supplying a uniform top and requiring black pants and shoes as part of the dress code. It began to supply vests rather than tops, and extended the dress code to include a white shirt. The arbitrator found that the requirement to wear a white shirt was not part of the uniform and need not be supplied by the company.

When a retail grocery store changed its dress code and ceased to provide employees with a uniform shirt, the union grieved.

Before 2002, employees at the store paid for their own work clothes. However, after that date, the employer instituted a hybrid approach to employee dress.

Employees were furnished with a “Uniform” shirt supplied by the company — at that time a green polo shirt decorated with the company logo. The terms governing the provision and maintenance of uniform shirts were spelled out in the collective agreement. However, with respect to implementation, Article 27.4 of the collective agreement said only this: “When the company decides to implement a uniform shirt, the following will apply.”

To supplement the uniform shirt, employees were required to supply work attire at their own expense that conformed to the company dress code. The dress code specified black dress pants and black shoes.

New dress code

In 2010, the employer advised the union of new dress requirements for employees. Instead of the uniform shirt, the employer would now provide a red vest. All the other elements of the ensemble, including a new requirement for a white, collared shirt — either a dress shirt or in polo style — were to be supplied by the employee in order to conform to the revised dress code.

The union grieved, arguing that the new requirement for a collared, white shirt constituted a “uniform shirt” under the terms of the collective agreement. The union said the employer was obligated to reimburse employees for the cost of the white shirts.

The union argued that the employer’s specificity about the newly required shirt — white, no visible logos, dress or polo style — went beyond the dress code requirements of a clean and presentable appearance and sought to impose a degree of sameness more characteristic of a uniform.

The union said that while the language in the collective agreement addressing the implementation of uniform elements was ambiguous, past practice between the parties suggested the employer should supply the shirts.

The employer said that past practice indicated the contrary. Over the previous 10 years, the parties accepted that identical shirts were “uniform shirts” but that non-identical clothing — even where “somewhat prescribed” — was part of the dress code.

The grievance was denied.

Degree of specificity at issue

The Arbitrator said the evidence showed the parties accepted that identical shirts were uniform shirts. In this case, the shirts in question were not required to be identical.

The Arbitrator referenced cases cited by the parties to determine the difference between dress code and uniform requirement, including Overwaitea Foods and UFCW, Local 1518 [1995]: “Arbitrators have generally distinguished a dress code from a requirement that employees wear a uniform or special apparel by reference to the degree of specificity established by the employer. Where there is freedom on the part of employees as to material and style of clothing, the requirement is typically seen as a dress code. It is not enough that the clothing worn by employees be similar, particularly where the policy is applied with flexibility and common sense, and employees retain some scope for personal selection.”

The Arbitrator acknowledged the union’s assertion that the white, collared shirts as specified by the employer may not match the personal taste preferences of employees and would therefore have limited use outside of the workplace.

That did not alter the fundamental calculation.

“[I] must conclude that considerable latitude is left to employees in selecting the shirt to be worn … The options open to employees within the scope of the white shirt requirement are significant, and it is clear that quite different shirts are in equal compliance with the [dress code] Policy. I am unable to find that the white shirt in issue here is a “uniform shirt” as contemplated by article 27 of the collective agreement, but rather find that ‘the degree of sameness’ here is insufficient to justify such characterization.”

Reference: Westfair Foods Ltd and United Food and Commercial Workers Canada, Local 1000A. Marie Lou Tims — Sole Arbitrator. Zoe King for the Employer. Patrick Groom for the Union. Oct. 19, 2011. 16 pp. Full Decision Order No. LVI3977-1.

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