Famous Players Limited v. Motion Picture Projectionists Union, Local 432, 1982 CanLII 923

[1982] OLRB Rep. July 1011

2685-81-M; 2686-81-M; 2687-81-M Famous Players Limited, Employer, v. Motion Picture Projectionists Union, Local 432, International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada, Trade Union; Canadian Odeon Theatres Ltd., Employer, v. Motion Picture Projectionists Union, Local 432, International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada, Trade Union; Premier Operating Corporation Limited, Employer, v. Motion Picture Projectionists Union, Local 432, International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada, Trade Union.

BEFORE: Ian Springate, Vice-Chairman, and Board Members B. L. Armstrong and F. W. Murray.

APPEARANCES: B. R. Baldwin, John Williamson and Harry Green for Famous Players Limited; B. R. Baldwin, John Williamson and Bob Yeoman for Canadian Odeon Theatres; B. R. Baldwin, John Williamson and John Stewart for Premier Operating Corporation, Stephen Shan field, John Pistor, Lee Carpenter, Hugh Usher and Larry Steih for the trade union.

DECISION OF THE BOARD; July 16, 1982

1. These are three references from the Minister relating to his authority to appoint a conciliation officer. In each case, the key portion of the reference to the Board from the Minister reads as follows:

"(1) By application dated February 26, 1982, the employer requested the Minister of Labour to appoint a conciliation officer in the above matter pursuant to section 16 of the Act.

(2) By telecommunication of March 3, 1982, counsel for the trade union and the Ontario Projectionists Association objected to the employer's request for conciliation, asserting that the trade union has designated the Ontario Projectionists Association as its agent for the purpose of collective bargaining with the employer.

(3) In a letter of March 3, 1982, counsel on behalf of the employer responded to the objection, submitting that the trade union is the proper party to its application for conciliation.

(4) A question has arisen that in the opinion of the Minister relates to his authority to appoint a conciliation officer in the circumstances of this request.

(5) Specifically, the question is whether it is the trade union or the Ontario Projectionists Association which has the authority to bargain for the unit of employees that is the subject of the request for conciliation."

2. The International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada ("the Alliance") is an international union headquartered in the City of New York in the United States of America. The Alliance is active in various aspects of the entertainment industry. In these proceedings, however, we are concerned only with members of the Alliance employed as projectionists.

3. The affairs of this Alliance are governed by its international constitution. Article 1 section 3 of the international constitution deals as follows with the issue of union membership:

"The membership of this Alliance shall comprise the members in good standing of such local unions as shall hold a charter from this Alliance, and said affiliated local unions and such persons who, having been members of any local union which has had its charter revoked or suspended, shall retain their membership in this Alliance in the manner provided in these laws, and such persons as may acquire and hold direct membership in this Alliance pursuant to these laws.”

4. Local 432 is a chartered local of the Alliance headquartered in the City of Peterborough. The affairs of the Local are governed by both a local constitution and local by­laws, as well as by the international constitution of the alliance. It is of some importance to note that the charter of Local 432 has never been revoked or suspended.

5. In the past Local 432 has entered into separate collective agreements with three major movie house chains, namely, Canadian Odeon Theatres Ltd., Famous Players Limited and Premier Operating Corporation Limited ("the companies"). The negotiations with the three companies were carried on at the same time (apparently through joint negotiations) and resulted in three almost identically worded collective agreements limited to the Peterborough area. The most recent collective agreement between the companies and Local 432 expired on December 31, 1981.

6. Just as Local 432 has bargained with the three companies for the Peterborough area, so its sister locals across the province have bargained with the companies with respect to their respective geographic jurisdictions. Over time the officers of most of the locals came to the conclusion that their membership would be better off if the locals could bargain jointly with the three companies. To this end twelve Ontario locals of the Alliance, including Local 432, established the Ontario Projectionists' Association. The various steps required to establish the association were completed on February 25, 1981 when the International President of the Alliance formally endorsed the association's constitution. It is clear from a reading of this constitution that membership in the association is limited to union locals, and that individual projectionists cannot be direct members. Particular reference is made to the following articles in the association's constitution:

"1.1 Name& Object

The name of this organization shall be The Ontario Projectionists' Association of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada.

This association is dedicated to the principles of trade unionism. Its objects are to unite the Projectionist Locals of the I.A.T.S.E. in Ontario for the purpose of joint negotiations and to engage in such other activities as may be in the best interest of the constituent locals of the O.P.A.

1.2 QUA LIFICA TION FOR MEMBERSHIP

The membership of this association shall consist of all I.A. locals in Ontario who represent projectionists. Each application for membership shall be accompanied with a letter of commitment and $100.00 application fee.

2.2 BASIS OF REPRESENTA TION

Each affiliated local shall have one vote and one designated representative in the O.P.A. Each local union shall be entitled to one additional guest visitor who shall have no official status or vote.

2.3 REVENUES

All expenses of the O.P.A. shall be equally divided between its affiliated local unions."

Reference is also made to paragraph 3 the by-laws of the Ontario Projectionists' Association which provides that local unions can withdraw from membership in the association.

7. On October 6, 1981, the president of Local 432 wrote to each of the three companies as follows:

"This is the official notification that Local 432 desire to open for negotiations the agreement with your company that expires on December 31, 1981.

Local 432 as a member of the properly constituted "Ontario Projectionists Association" has designated the power to this Association to negotiate our contracts.

The O.P.A. Committee will be pleased to meet with you as soon as possible to begin negotiations."

8. On November 24, 1981, Mr. Lawrence Steih, the secretary-treasurer of the Ontario Projectionists' Association wrote to the three companies as follows:

"Please be advised that the Ontario Projectionists' Association of the International Alliance of Theatrical Stage Employees and Moving

Picture Machine Operators of the United States and Canada has been appointed by the following I.A. Locals in Ontario to act as their representative in the upcoming contract negotiations with your company.

Local 105 — London, Ontario

Local 257 — Ottawa, Ontario

Local 303 — Hamilton, Ontario

Local 345 — Brockville, Ontario

Local 357 — Kitchener, Ontario

Local 432 — Peterborough, Ontario

Local 461 — St. Catharines, Ontario

Local 467 — Thunder Bay, Ontario

Local 528 — Kingston, Ontario

Local 580 — Windsor, Ontario

Local 582 — Brantford, Ontario

Local 634 — Sudbury, Ontario

These Local Unions of the I.A.T.S.E. possess the bargaining rights for their respective members and have seen fit to appoint a negotiating committee consisting of the Ontario Projectionists' Association of the I.A.T.S.E., which is properly constituted, and has been endorsed by the International Alliance's General Office.

The Power of Attorney has been inferred to the Ontario Projectionists' Association by these Locals and, with respect to that power, hereby request a meeting at a mutually agreed upon date, such meeting to take place in the City of Toronto, Ontario to discuss the terms and conditions of the agreements which affect these Locals.

If your company is not in agreement, then Affiliates of the Ontario Projectionists' Association have no choice but to file for a conciliation officer."

9. The three companies responded to the letters from both Local 432 and the Ontario

Projectionists' Association in a similar vein. Typical was the following letter dated December

10, 1981 from Famous Players Limited to Local 432:

"In response to your letter of the 27th day of November, 1981, this is to advise that this Company will not agree to negotiations taking place jointly with other I.A.T.S.E. Locals in Ontario, as you have suggested. It is this Company's position that it will negotiate with the Local in Peterborough, Ontario, with whatever bargaining committee has been appointed by the Local. The Company is not prepared to negotiate at one central bargaining meeting for all Locals. This has not been the practice of the Company in the past as it is the Local that clearly possesses the bargaining rights for the employees affected by these negotiations.

We also advise that we consider the position that the Local is taking with other Locals in order to achieve any meetings between the parties to be a refusal to bargain in good faith and make every reasonable effort to make a Collective Agreement.

We suggest that a meeting be held on the 18th day of January, 1982, in Peterborough, Ontario, in order to commence negotiations. Please confirm if this date is acceptable."

10. On February 26, 1982 each of the three companies requested the Minister of Labour to appoint a conciliation officer to assist the parties to effect a collective agreement. In each case the request named Local 432 as the trade union. By telegram to the Minister, dated March 3, 1982 counsel for the Ontario Projectionists Association objected to the appointment of a conciliation officer on the grounds that the Association was the proper party to the negotiations in that it had acquired "the rights, privileges and duties of its predecessor Local 432 by reason of a merger, amalgamation or transfer of jurisdiction". This objection prompted the Minister to refer the matter to the Board.

11. At the hearing before the Board, counsel for the Ontario Projectionists' Association contended that pursuant to section 62(1) of the Act, the Board should declare that the Association had acquired the rights, privileges and duties of Local 432, including the right to negotiate collective agreements. Section 62(1) of the Act provides as follows:

"Where a trade union claims that by reason of a merger or amalgamation or a transfer of jurisdiction it is the successor of a trade union that at the time of the merger, amalgamation or transfer of jurisdiction was the bargaining agent of a unit of employees of an employer and any question arises in respect of its rights to act as the successor, the Board, in any proceeding before it or on the application of any person or trade union concerned, may declare that the successor has or has not, as the case may be, acquired the rights, privileges and duties under this Act of its predecessor, or the Board may dismiss the application."

12. For section 62(1) to be applicable, it is clear that the rights, duties and privileges of one trade union must have been transferred to another trade union. The companies contend that the Ontario Projectionists' Association is not a trade union whereas the association submits that it is. It now well established that at common law a trade union is an organization of employees who have bound themselves together in a contractual membership one with. another. This point was perhaps most clearly put by Mr. Justice Evans when delivering the majority decision of the Ontario Court of Appeal in Astgen v Smith (1977) 1969 CanLII 488 (ON CA), 7 D.L.R. (3d) 657. In referring to the International Union of Mine, Mill and Smelter Workers his Lordship stated (at page 662):

"Mine Mill is not a corporation, individual or partnership, and is accordingly not a legal entity; it is an unincorporated group or association of workmen who have banded together to promote certain objectives for their mutual benefit and advantage and in law nothing is recognizable other than the totality of members related one to another by contract. The objects and purposes of the association are spelled out in the memorandum of association usually referred to as the 'constitution'; the by-laws or rules provide the machinery for the proper carrying out of activities intended to advance the objectives and purposes of the voluntary association. Each member of Mine Mill, upon being granted membership, subscribed to those purposes and objects and in so doing entered into a contractual relationship with every other member of Mine Mill."

See also the decision of the Supreme Court of Canada in Orchard v Tunny (1957) 1957 CanLII 57 (SCC), 8 D.L.R. (2d) 273 at pp. 28 1-282.

13. An employee usually joins a chartered local of a trade union, and thereby enters into a contractual relationship with other members of the local. The terms of this contractual relationship are usually to be found in both the constitution of the "parent" trade union which chartered the local as well as in the constitution and by-laws of the local itself. In joining a union local, an employee also becomes a member of the parent union. In so doing he enters into a contractual relationship with all other members of the union (even those in other locals), the terms of which are to be found in the parent union's constitution. Having carefully reviewed the constitution and by-laws of Local 432 as well as the constitution and by-laws of the Alliance, we are satisfied that both the local and the Alliance are trade unions at common law.

14. The Ontario Projectionists' Association is not in our view a trade union at Common Law. It is not an association of individuals who have contractual links one with another. Rather it is an organization of trade union locals. Counsel for the Ontario Projectionists' Association referred us to a 1953 decision of the Saskatchewan Court of Queen's Bench in Re F. W. Woolworth Company Limited and Saskatchewan Joint Board, Retail, Wholesale and Department Store Union, C. 1.0. 53 CLLC ¶115,071 in which it is held that an association of trade unions is itself a trade union. With respect, however, we are unable to concur with this result. In that an em~3Ioyee has no individual rights vis-a-vis an association of trade unions, we are satisfied that such an association cannot be a trade union at common law.

15. Section l(l)(p) of the Labour Relations Act sets out the following definition of a trade union for the purposes of the Act.

"'trade union means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national, or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency.”

The first part of the statutory definition wherein it refers to a trade union as being an "organization of employees" would take in all organizations which would qualify as trade unions at common law. However, section 1(l)(p) goes on to also define as trade unions for the purposes of the Act two entities which would not otherwise qualify as trade unions, namely "a certified council of trade unions" and "a designated or certified employee bargaining agency". Designated or certified employee bargaining agencies are peculiar to the provisions of the Act government provincial bargaining in the industrial, commercial and institutional sector of the construction industry and need be of no further concern in these proceedings. Councils of trade unions, however, are quite another matter.

16. A council of trade unions is defined in section l(l)(g) of the Act as follows:

"'council of trade unions' includes an allied council, a trades council, a joint board and any other association of trade unions."

Being an association of trade unions (as opposed to an association of employees) a council of trade unions would not qualify as a trade union at common law. However, the Legislature has decided that for the purposes of the Labour Relations Act certain councils of trade unions should be regarded as trade unions in their own right, namely, those councils which have been certified as a bargaining agent by this Board. Section 10 of the Act sets out the requirements for the certification of a council of trade unions. It is of some interest to note that due to the fact that councils of trade unions do not have employee members, section 10(3) provides that for purposes of determining whether there is sufficient membership support to certify a council of unions (and only for this purpose) "a person who is a member of any constituent trade union of a council shall be deemed by the Board to be a member of the council."

17. The Ontario Projectionists' Association has never been certified by this Board. Accordingly, it is not a certified council of trade unions. Further, in that it is not an "organization of employees" it does not otherwise come within the definition of a trade union. Accordingly, we are satisfied the association is not a trade union for the purposes of the Act. Not being a trade union, the association cannot be declared to be a successor trade union under section 62 of the Act. In this regard see: Bathe & McLellan Const. Ltd. [1969] OLRB Rep. Jan. p. 1041.

18. In our view, what the Ontario Projectionists' Association is an uncertified council of trade unions. The Act clearly envisages that both certified and uncertified councils of trade unions can bargain and enter into collective agreements, albeit that different considerations apply depending on whether or not the council has been certified. In this regard see sections I(l)(e), 51, 53, and 55 of the Act.

19. The role of an uncertified council in negotiating a collective agreement was summarized by the Board in The Board of Education for the City of Toronto case [1982] OLRB Rep. March 496 as follows:

"It was agreed that the Council is not a certified council of trade unions as defined in section l(l)(d). The Act contemplates that the role of an uncertified council of trade union is to act as an agent of the trade unions which it represents rather than as an independent participant and bargaining agent. The decision of the Board in Bathe & McLellan Const. Ltd.. [1969] OLRB Rep. Jan. p. 1041, held that 'trade union' does not include an uncertified council of trade unions. It follows that the Council may neither hold nor exercise bargaining rights in its own name. However, the Council may act as an agent of other trade unions which possess bargaining rights."

20. In that the Ontario Projectionists' Association is an uncertified council of trade unions, to the extent it can act in the name of Local 432 it is only as a representative of, or agent for, Local 432. Local 432 still holds the relevant bargaining rights. This being the case, even if we were to assume that the companies could be required to negotiate with the Ontario Projectionists' Association as agent for Local 432, there can be no valid objection to the naming of Local 432 in the requests for the appointment of a conciliation officer. In these circumstances, we are satisfied that regardless of the matters referred to below, the Minister has the authority to appoint a conciliation officer in each of these files, and that in the requests for appointment Local 432 was quite properly named as the relevant trade union.

21. The above conclusion does not, of course, provide a total answer to the issue between the parties. The question still remains as to whether the companies can be required to bargain with the Ontario Projectionists' Association acting on behalf of Local 432 and whether the companies are required to negotiate with the association in a single round of bargaining with respect to all of the Locals which have chosen the association to act as their agent. When this question was put by the Board to counsel for Local 432, in the context of the association being an uncertified council of trade unions, as opposed to a trade union in its own right, counsel indicated that he was not prepared to make a full submission on the matter. For his part, counsel for the companies contended that although it was open to an employer to voluntarily decide to negotiate jointly with a number of locals through an uncertified council of trade unions, the employer was also at liberty to decline to do so. In that this issue was not fully argued, we are reluctant to make any final determination of the matter. However, the parties are referred to the Board's decision in the Journal Publishing Co. of Ottawa Ltd. [1977] OLRB Rep. June 309, where the Board appeared to indicate that although a union can select its own representative for bargaining, the issue of whether an employer will negotiate with several unions in a single set of negotiations is a matter for bargaining, and that the employer is entitled not to agree to such a procedure. The actual reasoning of the Board was as follows:

"46. The question here is whether a union, as bargaining agent of the employees, is entitled to determine the manner in which it will conduct its part of the negotiations, and the persons who will act as spokesmen at these negotiations. We consider that such an entitlement does exist, and is qualified only by the obligation on that trade union to bargain in good faith and make every reasonable effort to reach a collective agreement. Section 56 of the Act provides:

56. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

57. This section protects a union from employer interference with not only the formation, selection or administration of a trade union, but also the representation of employees by a trade union. The structure and composition of the union's bargaining team cannot be determined by the employer. A refusal by an employer to negotiate until the composition of the union's bargaining team is altered, therefore, amounts to a breach of the duty to bargain in good faith — the essence of the wrong being the failure to recognize the union, as represented by its properly constituted bargaining team.

58. The legality of the refusal to meet the full Council is more problematic. It is clear that the Council had no status as a bargaining agent. The Council, therefore, was not entitled to usurp the bargaining rights of its constituent members and insist upon dealing with the individual contracts together. On the other hand, the constituent members are entitled to shape their own bargaining structure, and choose their own spokesmen when bargaining for their individual contracts. Was The Journal's refusal to meet with the Council merely a refusal to deal with the individual contracts as one package, or was it an attempt to determine the composition of the unions' bargaining team? On the evidence, we find that The Journal was not simply objecting to the discussion of the individual contracts as one package but was objecting to the bargaining structure itself. This objection, as well as the objection to McCarthy's presence at the bargaining table, constituted a failure to bargain in good faith."

59. The specific question put to the Board by the Minister was as follows:

"5. Specifically, the question is whether it is the trade union or the Ontario Projectionists Association which has the authority to bargain for the unit of employees that is the subject of the request for conciliation.

6. Pursuant to section 107 of the Act, the Minister refers to the Labour Relations Board the question which has arisen concerning his authority to make the requested appointment."

Having regard to our reasoning set out above, we are satisfied that Local 432 holds the formal bargaining rights for three units of employees and that accordingly the Minister does have the authority to make the requested appointments.