[1985] OLRB Rep. November 1560
1570-85-R The International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local #58, Toronto, Applicant, v. Centrestage Toronto, Respondent
BEFORE: R. A. Furness, Vice-Chairman, and Board Members B. L. Armstrong and R. J. Gallivan.
APPEARANCES: T. W Pratt and J. C. Fuller for the applicant; W. G. Phelps, Edgar Dobie and Ivan Habel for the respondent.
DECISION OF THE BOARD; November 25, 1985
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The applicant has applied for certification with respect to a bargaining unit defined as "stage carpenters, stage electricians and property men employed by the respondent in the Municipality of Metropolitan Toronto". The respondent in its reply has suggested that the appropriate bargaining unit ought to be defined as "all stage carpenters employed by the respondent at its scenery construction shop, 9 Hanna Avenue in the Municipality of Metropolitan Toronto". Prior to the hearing of this application, the parties notified the Board that the appropriate bargaining unit ought to be described as "stage carpenters and stage electricians employed by the respondent at its scenery construction shop at 9 Hanna Avenue in the Municipality of Metropolitan Toronto". Although the parties were prepared to waive a hearing of this application, a hearing was held so that the Board could obtain further information on the extent of the respondent's operation and on the appropriateness of the bargaining unit which reflected their agreement.
The respondent is a theatre production company and is the successor to the Toronto Arts Productions. It is run by a board of directors as a non-profit unincorporated organization and is a charity under the Income Tax Act. The respondent puts shows together, hires actors, builds scenery and stages shows. These shows are staged at the St. Lawrence Centre. When a show is running at the St. Lawrence Centre the stage hands required to run the show are employed by the St. Lawrence Centre under a collective agreement between the St. Lawrence Centre and the applicant. In the event that set scenery is constructed in the St. Lawrence Centre, such scenery is constructed under the collective agreement between the St. Lawrence Centre and the applicant.
The set construction, which is affected by this application, is not constructed at the St. Lawrence Centre but is constructed at the respondent's comparatively new scenery construction shop at 9 Hanna Avenue (the "first location") which is near the Canadian National Exhibition. On September 25, 1985, the date of the filing of this application, the respondent employed five stage carpenters at the first location who had been hired through the hiring hall of the applicant in order to construct scenery. At the material time, the respondent did not employ stage electricians. However, the respondent conceded that it is possible that there may be the occasional future requirement for a stage electrician at the first location. The respondent also has an additional location at 39 Niagara Street in the City of Toronto (the second location"). At the second location the respondent employs up to seven property men. On September 25, 1985, the respondent employed four property men at the second location. The property men were not hired through the applicant's hiring hall.
The work at the two locations requires the exercise of different skills. The first location is a scenery fabrication shop, while the work at the second location involves the building and the maintaining of movables (props). The respondent also employed at the material time about twenty wardrobe personnel at several locations, including the St. Lawrence Centre where the respondent rents space. None of the wardrobe personnel work at either the first or second locations. The property men and wardrobe personnel are employed on a seasonal basis from the beginning of September to the end of May of each year. The respondent has leased what it described as "a fair amount of space" at the first location. The respondent is not bound by any collective agreements.
The Board discussed with the parties the scope and location of the appropriate bargaining unit. The applicant informed the Board that it has never represented, has never sought to represent wardrobe personnel and that the applicant does not take them into membership. However, the applicant informed the Board that it does take property men into membership and does represent them under the terms of its various collective agreements. It was the position of the applicant that wardrobe personnel were taken into membership and represented by its sister local 822 in the same way that another sister local 873 represented motion picture mechanics.
The respondent argued that a bargaining unit of all stage employees at the first location would be too restrictive because if the respondent was required to consolidate its operations at the first location a bargaining unit of all stage employees would be a substantial impediment to accomplishing this. The respondent pointed out that in the unlikely event that it did move from the first location, such a move could be dealt with in collective bargaining because it had obtained the stage carpenters from the applicant. As an alternative description to the bargaining unit proposed by both parties, the respondent suggested that the appropriate bargaining unit might be described as "stage carpenters, stage electricians employed by the respondent in the scenery construction shop" with a clarity note that at the time of the application the shop was at 9 Hanna Avenue and a further clarity note that property men and wardrobe attendants are not included in the bargaining unit.
The applicant has rarely used the Board's certification procedures in obtaining its bargaining rights. In Harbourfront Corporation, [1982] OLRB Rep. Nov. 1624, the Board entertained an application for certification by the applicant wherein the applicant had applied for certification for an alleged craft bargaining unit of employees described as "all stage employees, theatre technicians, audio-visual technicians and equipment operators, stage hands and stage electricians employed by the respondent at its premises in Toronto". The employees for whom the applicant sought certification were the employees who were involved in the audio-visual aspects and the staging of the performing arts. Harbourfront also had employees in its communications, property and administration and planning and development divisions. The Board in Harbourfront Corporation considered the collective bargaining relationship to which the applicant was a party and stated at pages 1632 and 1633:
The applicant filed a number of collective agreements. These collective agreements were between the applicant and the following employers:
Hart House
Massey Hall
The Canadian Broadcasting Corporation
Ed Mirvish Enterprises Limited operating the Royal Alexandra Theatre
Maple Leaf Gardens
O'Keefe Centre
The Canadian National Exhibition
The Board of Management of The St. Lawrence Centre for the Arts, and
CP Hotels Limited operating The Royal York Hotel.
The classifications referred to in these collective agreements cover a wide variety of jobs such as, electricians, carpenters, special operators, flymen, stagehands, switchboard operators, follow spot operators and house sound systems, property men, front light operators, public address operators. portable switchboard operators, chief sound technicians, chief grips, property masters, operators and assistants, spotlight operators, superintendents of construction of stage settings and soundmen. The descriptions in the bargaining units in these collective agreements also vary, with the terse "all stage employees" for the collective agreement between the applicant and CP Hotels Limited operating The Royal York Hotel and "electricians, carpenters, special operators and flymen" for the collective agreement between the applicant and Hart House. On the other hand, the collective agreements between the applicant and Maple Leaf Gardens and between the applicant and The Canadian National Exhibition set forth the classifications of employees in considerable detail.
All of the classifications referred to in the preceding paragraph are not present in each of these collective agreements. No doubt this is a function of the productions and art forms which are variously produced by or for the employers who are parties to these collective agreements. Typically, the areas of craft trade unionism which the Board encounters are mainly in the construction industry and to a lesser extent in the printing and allied trades industry. The description of the craft bargaining units in the construction industry tends to follow a repetitive pattern with very little variation, such as, for example, millwrights and millwrights' apprentices or electricians and electricians' apprentices. In the printing and allied trades industry the craft bargaining units do not always follow repetitive patterns with very little variation and show more variations in the composition of the bargaining units than in the construction industry. While the construction industry and the printing and allied trades industry are by far the largest groupings of craft trade unionism which generally fall within provincial jurisdiction, there are nevertheless other small pockets of craft trade unionism such as, for example, butcher workmen, stationary engineers, fur workers and bar employees. The Board has generally had little contact with the applicant which asserted its claim to the status of a craft trade union. The respondent did not dispute that the applicant is a craft trade union. On the basis of the evidence and representations before it, the Board finds that the applicant is a craft trade union as contemplated by the provisions of section 6(3) of the Act. The question of whether the applicant is entitled to be certified by the Board for the bargaining unit referred to in paragraph ten depends upon whether the applicant is able to establish that all of the conditions set forth in section 6(3) have been met in the circumstances of this application.
The Board proceeded to determine that all of the conditions set forth in section 6(3) had been satisfied and that pursuant to section 6(3) the appropriate bargaining unit was "all stage employees of the respondent in Metropolitan Toronto, save and except managers, persons above the rank of manager, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period". The Board added a clarity note that "the bargaining unit presently consists of audio-visual technicians". The Board also noted in the decision that in the event that the respondent subsequently employed other stage employees, then such employees might form an accretion to the bargaining unit.
In the instant application the applicant initially applied for a bargaining unit described as "stage carpenters, stage electricians and property men employed by the respondent in the Municipality of Metropolitan Toronto". This proposed bargaining unit includes the existing property men and the non-existing stage electricians and defines the bargaining unit with respect to a municipality. The bargaining unit initially described by the respondent as "all stage carpenters employed by the respondent at its scenery construction shop, 9 Hanna Avenue in the Municipality of Metropolitan Toronto" does not include either the non-existing stage electricians or the existing property men. Moreover, this proposed bargaining unit is defined with reference to a municipal address rather than a municipality. The proposed bargaining unit which has been agreed to by the parties has been defined as "all stage carpenters and stage electricians employed by the respondent at its scenery construction shop, 9 Hanna Avenue in the Municipality of Metropolitan Toronto". This proposed bargaining unit includes the non-existing stage electricians, excludes the existing property men and has defined the proposed bargaining unit with reference to a municipal address rather than a municipality.
While the Board decided in Harbourfronl Corporation that the applicant satisfies the requirements of section 6(3), the bargaining units described in its various collective agreements do not show any uniformity. The classifications contained in the suggested bargaining units referred to in paragraph nine parallel the diversity of the bargaining units referred to in the excerpt from Harbourfront Corporation in paragraph eight. In Harbourfront Corporation the Board contemplated a situation where it was determined to be appropriate to define an appropriate craft bargaining unit which was reflected in some of the applicant's bargaining units and which would at the same time provide a description which was broadly defined so as to include by accretion any additional classifications which might be subsequently employed in a variety of employment situations which came within the jurisdiction of the applicant.
It is the usual practice of the Board to define an appropriate bargaining unit with reference to the municipality where an employer's place of business is located rather than with reference to a municipal address unless the employer has more than one place of business within a municipality. The Board set forth its policy in 7'. R. S. Food Services Limited, [19801 OLRB Rep. April 542, where it stated at pages 542-543:
Where an employer has only one location within a municipality, the Board's consistent practice, apart from the construction industry, has been to describe the geographic scope of the bargaining unit by reference to the municipality rather than the respondent's particular location. This practice results from a balancing of two competing interests: the individual's interest preserved by section 3 of the Act to be free to join a trade union of his own choice, on the one hand, and, on the other, the concern of the Board as well as the union and employees involved in any particular case that sufficient stability adhere to the bargaining rights conferred....
While limiting a bargaining unit to the respondent's particular location would give considerable latitude to an individual's freedom to join a trade union of his own choice, it could, at the same [time], jeopardize the stability of the bargaining rights conferred upon the union. If an employer moves the location of its operation in a situation where the bargaining unit has been defined by reference to the employer's street address, the union's bargaining rights may be extinguished by the move. The Board's general policy of describing the geographic scope of a bargaining unit by reference to the municipality in which the employer's operation is situated instead of the particular location inhibits bargaining rights from being disturbed in this manner.
Where an employer has business operations at more than one location within a municipality, the Board's policy is to define the appropriate bargaining unit for each location unless the operations are integrated and the employees share a community of interest. In the instant case, the respondent's operations at the first and second locations do not appear to be integrated. The respondent, however, may in the future consolidate its operations at the first location.
From the information before the Board it appears that the wardrobe personnel and property men do not share a community of interest with each other. Neither the wardrobe personnel nor the property men work with the stage carpenters. Moreover, while the property men are normally represented in collective bargaining by the applicant, the wardrobe attendants are usually represented by a sister local of the applicant. The membership evidence which has been filed by the applicant is confined to the stage carpenters which it has supplied to the respondent. There is nothing before the Board to indicate that the applicant has made any attempt to sign any of the property men into membership. The operations of the respondent appear to be separated not only by location but also by function. The stage carpenters work at the first location and are the only employees of the respondent at the first location who fall within the jurisdiction of the applicant. The Board notes that the applicant and the respondent have agreed that the appropriate bargaining unit ought to be described with reference to the first location. In these circumstances, the Board is prepared to define the appropriate bargaining unit in terms of the first location only.
The description of the appropriate bargaining unit poses an issue of whether to define the appropriate bargaining unit in terms of (a) one classification (stage carpenters), (b) one existing classification (stage carpenters) and one non-existing classification (stage electrician) or (c) all stage employees which would include stage carpenters who are presently employed and by accretion other stage employees who may be subsequently employed at the first location, for example, stage electrician and property men. In our opinion, the latter option is the preferred resolution on the facts of this application. The latter option addresses and covers the present employment situation in a craft bargaining unit context and allows for the inclusion of other members of the craft who may be subsequently employed at the first location. With the latter option, the property men are not included in the bargaining unit unless they are moved to the first location. The respondent will not be faced with a substantial impediment unless it either moves the property men to the first location or the applicant successfully organizes the property men at the second location. In either situation, the respondent will be required to bargain collectively with respect to the property men.
Having regard to the foregoing, the Board further finds that all stage employees in the employ of the respondent at 9 Hanna Avenue in Metropolitan Toronto, constitute a unit of employees of the respondent appropriate for collective bargaining.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on October 4, 1985, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
A certificate will issue to the applicant.