Canadian Labour Reporter

February 25, 2019

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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8 Canadian HR Reporter, a Thomson Reuters business 2019 February 25, 2019 ARBITRATION AWARDS 8 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 em- ployees should be considered ho- tel 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 an- nual 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 mem- bers of the public and not hotel guests. Hotel staff encouraged guests to stay and linger at the table dur- ing dinner services, which was un- like the "grab and go" experience offered by Starbucks, said Fair- mont. 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 em- ployer. Arbitrator Mark Asbell upheld the grievance and ordered Fair- mont to immediately include the Starbucks workers into the bar- gaining unit. "I also order that the employer pay an award of dam- ages equivalent to the lost union dues from Jan. 20, 2014, to the im- plementation 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 Star- bucks 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, dut- ies, authority, obligations, and responsibilities, is not identical to that of a hotel server it is, nonethe- less, similar in kind or class to that of a hotel server," said Asbell. "By way of analogy, and to underscore the employer's pos- ition in a slightly different context, it is difficult to see how a flight at- tendant serving the business class section on a long flight would be in a different kind or class of pos- ition from flight attendants serv- ing 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 attend- ants 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. Reference: 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 Canada at the uranium mill oper- ation, was scheduled to be flown into the site from his home base of Saskatoon. He arrived at 6:30 a.m., for the expected 7:15 a.m. flight. However, poor weather condi- tions prevented outbound and in- bound flights at the airport. McEwen remained at the air- port until 3 p.m., and then went home. He was able to reach the mill site the following day for his regular shift. McEwan was paid for all the hours he should have worked on Sept. 2, but he didn't receive the expected flight-delay benefit. According to a July 1 letter of understanding (LOU) that was part of the collective agreement, "where transportation is delayed (defined as arrival at the drop-off point) either five hours later than scheduled arrival time or after 11 p.m., whichever applies, the com- pany will compensate employees on such flights with a benefit of $300." On the same day of the delay, pipefitter Wesley Churchill was scheduled to return home to the Prince Albert, Sask., airport, but the bad weather meant he stayed at McClean Lake and worked an extra shift. Churchill was paid $300 for the delayed flight home and received overtime pay for working the ex- tra day. McEwen, and the union, Unifor, Local 48-S grieved the denial of the flight-delay payment. The $300 compensation was only intended for homeward- bound flights, testified Mark Campbell, manager of HR and training. Employees who are heading into work are being paid for all time spent, even if they don't work that day, he said. The extra money was intended for employees who were late get- ting to their homes, according to Campbell. However, this distinction didn't exist in the LOU wording, argued Unifor. Arbitrator William Hood agreed with the union and or- dered the employer to pay $300 to McEwan. "The objective of the extraor- dinary flight delays LOU is clearly stated. The objective does not dif- ferentiate among employees or the direction of the flight. What the employer is asking me to do is read into the extraordinary flight delays LOU that which is not there. In my view, should I restrict the stated objective to compen- sate only employees for extraordi- nary flight delays leaving the mine site defeats the objective of the extraordinary flight delays LOU" said Hood. Other parts of the collective agreement distinguish between differing flights, said Orano, and this should be construed to mean the LOU also refers to outbound flights only. "The language does not differ- entiate between inbound flights and outbound flights like the lan- guage found in articles 31.3 and 31.4 of the collective agreement. It would be a fair conclusion to reach, and one I am inclined to make, that the language of the extraordinary flight delays LOU does not restrict the compensa- tion for flight delays only to out- bound flights. It does not say that, and I have no mandate to change the words the parties have agreed to," said Hood. "I also do not agree with the em- ployer's submission that the drop- off point should be so narrowly construed to mean only the point the employee ceases to be under the supervision of the employer" said Hood. "There is no support for the ar- gument. There is nothing in the collective agreement that defines a drop-off point, let alone a drop- off point where the employee is supervised," said Hood. Reference: Orano Canada and Unifor, Local 48-S. William Hood — arbitrator. Kevin Wilson for the employer. Gary Bainbridge for the employee. Jan. 25, 2019. 'Language does not differentiate' between flights: Arbitrator < Flight-delay payment pg. 1 < Bargaining unit pg. 1 Differences between coffee chain, rest of hotel: Employer

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