After a Starbucks coffee outlet opened in the lobby of the Fairmont Palliser Hotel in Calgary in 2014, the union asked the employer to place all new employees into the bargaining unit.
However, the employer disagreed and said the Starbucks workers were out of scope.
Article 2 of the collective agreement called for “employees who are assigned to positions similar in kind or class to those listed in schedule A which might be created during the term of this agreement” to be included in the bargaining unit for Unifor, Local 4050.
The Starbucks workers should be classified into the hotel servers group, said Unifor, because they did substantially similar work.
The employer argued that although the workers, who were known as baristas, were paid by the hotel, they were restricted to work on the Starbucks premises, which also was accessible to the public.
As well, the baristas received only two days of training in hotel protocol and five days of training under the Starbucks methods of work.
Unifor said all Starbucks employees should be considered hotel employees because the baristas were eligible to be honoured as employee of the month, they ate their lunches in the hotel staff room and were invited to the annual Christmas party.
Fairmont countered and said the Starbucks employees were not on the included list on schedule A, so they could not be considered hotel employees.
As well, the large majority of Starbucks customers were members of the public and not hotel guests.
Hotel staff encouraged guests to stay and linger at the table during dinner services, which was unlike the “grab and go” experience offered by Starbucks, said Fairmont. This proved they were not in the same class as hotel workers, who served coffee in fine china and not in paper cups as happens at the coffee chain, said the employer.
Arbitrator Mark Asbell upheld the grievance and ordered Fairmont to immediately include the Starbucks workers into the bargaining unit. “I also order that the employer pay an award of damages equivalent to the lost union dues from Jan. 20, 2014, to the implementation of the award.”
The differences cited by the employer were not strong enough to exclude the workers, accord to the arbitrator.
“The employer argues a Starbucks barista is not of the same ‘kind’ or ‘class’ as a hotel server primarily because the ‘class’ of the service provided is quite different. I reject this argument. The term ‘class’ is not used in the article as an adjective describing the style of service provided; it is not used as a differentiator vis-a-vis other operations, such as Starbucks, which uses paper cups and ‘to go’ containers versus the use of such niceties as china, cutlery, and table linens,” said Asbell.
“I am satisfied there are many commonalities and similarities between Starbucks employees and hotel servers. I am satisfied that while the barista position, inclusive of job functions, duties, authority, obligations, and responsibilities, is not identical to that of a hotel server it is, nonetheless, similar in kind or class to that of a hotel server,” said Asbell.
“By way of analogy, and to underscore the employer’s position in a slightly different context, it is difficult to see how a flight attendant serving the business class section on a long flight would be in a different kind or class of position from flight attendants serving economy class merely because business class passengers are served with linen, stainless steel cutlery, wine glasses and superior food over those flying economy. While the passenger experience is quite different in terms of product of food and style of delivery, the core functions of the flight attendants are the same. The term ‘class’ reflects back on ‘position’, not style of delivery and, consequently, the positions are similar in kind or class,” said Asbell.
Inn Vest Hotels o/a The Fairmont Palliser Hotel and Unifor, Local 48-S. Mark Asbell — arbitrator. Michael Ford for the employer. Karen Scott for the employee. Jan. 28, 2019. 2019 CarswellAlta 124
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