Service Employees Union Local 183 v. Famous Players Inc., 1990 CanLII 5825

[1990] OLRB Rep. May 509

0711-89-R Service Employees Union Local 183, Applicant v. Famous Players Inc., Respondent v. Group of Employees, Objectors

BEFORE: Robert Herman, Vice-Chair, and Board Members M. Rozenberg and D. A. Patterson.

APPEARANCES: Norman C. Dunlop and Gerry Goyer for the applicant; Lynn H. Harnden, John Xinos and Pat Cioffi for the respondent.

DECISION OF THE BOARD; May 4, 1990

1. This is an application for certification. At the time and place set for the hearing, no one appeared on behalf of the employee objectors. The Board was in receipt of a letter from the repre­sentative of the employee objectors indicating that she was unable to attend the hearing. There was no request for an adjournment. The hearing therefore continued, but it did not commence until approximately one half hour after the scheduled start time, to ensure that no one else on behalf of the employee objectors might be attending. No one appeared on behalf of any of the employee objectors at any time during the hearing.

2. As set out in an earlier decision of the Board, differently constituted, the only issue in dispute between the parties is with respect to the description of the bargaining unit. The applicant seeks to represent the employees at the theatre at Place de Ville, a theatre owned and operated by Famous Players Inc. in the City of Ottawa. The respondent asserts that a single theatre is not an appropriate unit, and the appropriate bargaining unit should consist of all theatres of the respon­dent in the Regional Municipality of Ottawa-Carleton, or in the alternative, all theatres of the respondent in the City of Ottawa. This appears to be the first decision of the Board which consid­ers whether a single theatre in a theatre chain is an appropriate bargaining unit.

3. The respondent operates eight theatres within the Regional Municipality of Ottawa-Carleton, four of which are found within the City of Ottawa itself. The number of employees at each theatre ranges from thirteen to forty-six, the vast majority of whom would be part-time employees, mostly high school students. These employees work, for the most part, as ushers, cash­iers, or concession attendants. The work performed by the employees at each location would be virtually identical, as are the general terms and conditions of employment. Employees work on a predetermined schedule based upon the particular theatre's operating needs and the availability of the employee.

4. A District Manager is responsible for the overall operations of all the theatres and there is central coordination with respect to training of staff and the forms and methods of operation of each theatre. Each theatre has its own Manager, who is responsible for personnel matters involving employees at his or her theatre, including hiring, firing, discipline, scheduling, and performance evaluations. Based upon these performance evaluations from the Manager of the theatre, the Dis­trict Manager decides whether an individual employee merits a wage increase. Employees are asked upon occasion to move between branches, either by substituting another theatre for the the­atre they generally work at, or by working additional shifts at any theatre. A particular Manager may need extra staff, and if so he or she will call one of the other theatres and ask whether any employees of that theatre or branch are willing to do additional or substitute shifts. If an employee volunteers to do these shifts, he or she is paid for them by the theatre where the shifts are per­formed. There are occasions where a Manager needs help for a very short time, for a particular shift or for relatively few shifts. Again, employees are given the choice of whether to work these shifts at the other theatre. In these circumstances, where the shifts are relatively few in number, the employee would continue to be paid by the theatre at which he or she customarily works. There are no "transfers" between theatres in the sense that the employer directs employees to move to another theatre or to do additional shifts there. Insofar as employees at Place de Ville are concerned, such interaction has been infrequent and irregular. During the summer of 1988 one employee there was asked to and agreed to work additional shifts at other theatres. Employee movement in the other theatres has been greater. In all 8 theatres in the Regional Municipality, in a recent 2 year period approximately 18 employees "transferred" between theatres, in the sense of agreeing to change the theatre they usually worked at, and approximately 50 employees worked additional shifts at other theatres. Promotions to managerial positions outside the bargaining unit are made by the District Manager.

5. In arguing that the single theatre bargaining unit requested by the applicant is inappro­priate, the employer notes that to grant such a unit would result in undue fragmentation and a mul­tiplicity of bargaining units. It argues that the nature of the work and the working conditions are virtually identical at each location, and there is therefore a coherent community of interest amongst all theatres or branches. The overall administration and operation of the theatres is done on a regional basis. Although "exchanges" or "transfers" of employees at Place de Ville are lim­ited, the employer asserts that the Board ought to take account of the entire picture of interaction, including employee activity in other theatres within the Regional Municipality.

6. The employer acknowledged that the Board does not insist on its traditional municipal­ity bargaining units in certain circumstances and has historically found single branches in the ser­vice industry to be appropriate. Counsel noted that the reason the Board found single branch units to be appropriate was a concern that to conclude otherwise would place significant obstacles in the paths of unions attempting to organize in multi-branch contexts. Counsel argues, notwithstanding this concern, that the Board must still be satisfied that any bargaining unit found to be appropriate creates a viable bargaining structure. In the instant case, the unit requested by the applicant encompasses a relatively small number of part-time employees, most of whom are high school stu­dents. Thus, asserts the employer, the nature of the employees in the bargaining unit sought here is different from those employees in other contexts in which the Board has granted single branch bargaining units. In those bargaining units, employees were generally full-time employees. To grant a bargaining unit of approximately twenty-five high school students who only work part-time would be to create a bargaining unit with virtually no economic bargaining strength, and therefore a bargaining unit which would not in the result be viable. This lack of viability is highlighted, the employer submits, by the fact that the turn-over of employees at Place de Ville in less than a year has been eleven out of twenty-five.

7. Recently, the Board had occasion to survey and reconsider its approach to granting sin­gle branch bargaining units. In National Trust [1986] OLRB Rep. Feb. 250, the application con­cerned branch offices of a financial institution in the Regional Municipality of Metropolitan Toronto. The parties there agreed that a single branch of the respondent would constitute an appropriate bargaining unit, but the applicant was seeking a unit consisting of seven of the thirty-seven branch offices of the respondent. The respondent asserted that, if each single branch was not to be the bargaining unit, the only other unit appropriate for collective bargaining was all of the respondent's thirty-seven branches in Metropolitan Toronto. In summarizing the jurisprudence, the Board wrote as follows:

8. The duty of the Board to determine the appropriate bargaining unit in an application for cer­tification is set out in section 6(1) of the Labour Relations Act. That section provides:

Subject to subsection (2), upon an application for certification, the Board shall deter­mine the unit of employees that is appropriate for collective bargaining, but in every case the unit shall consist of more than one employee and the Board may, before determining the unit, conduct a vote of any of the employees of the employer for the purpose of ascertaining the wishes of the employees as to the appropriateness of the unit.

As the Board recently emphasized in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, however, there may in any given case be any number of bargaining-unit configurations which are not "inappropriate", and the Board, in the exercise of the discretion granted to it, must decide which of those configurations is the appropriate one for that particular case. After ana­lyzing the language of some of the Board's earlier cases in this regard, and in particular the Board of Education for the City of Toronto case, [1970] OLRB Rep. July 430, the Board in Hosp ital for Sick Children wrote:

21. ... In any given situation there may not be only one uniquely appropriate bargain­ing unit. Quite the contrary. As we have already noted, the institution of collective bargaining has shown itself capable of accommodating a variety of bargaining struc­tures, even in broadly similar circumstances, and in particular situations there may be several alternative and equally appropriate ways of framing the bargaining unit description. There may be varying degrees of "appropriateness", with one or more unit descriptions being appropriate, even though some other (usually more compre­hensive) bargaining unit might also be appropriate. For example, a single plant unit may be appropriate but so may a multi-plant unit.

To the same effect, see K-Mart Canada Limited, [1981] OLRB Rep. Sept. 1250, at paragraph 18; Parnell Foods Limited, [1969] OLRB Rep. April 38, at paragraph 17. while the "most com­prehensive" bargaining unit available has obvious industrial-relations advantages, the Board has long made it clear that other considerations, such as the ability to organize at all, may cause the Board to look at lesser groupings as an appropriate bargaining unit. In Canada Trustco, [1977] OLRB Rep. June 330, for example, the applicant trade union had organized the only branch of the employer in the town of Simcoe. The employer took the position that the only appropriate bargaining unit was either one that included the branch in the neighbouring Township of Delhi, or all of the branches in the employer's administrative division of southwestern Ontario. In reviewing its options, the Board noted:

19. In the instant case, the standardization impressed on all employment relations by the flow-charts and policies of the employer does give rise to a community of interest among all employees in the branches of the south-western Ontario region. But that does not of itself dispose of the question of what is the appropriate bargaining unit. As the Board said in Ponderosa (supra at 10):

It should be observed, however, that the Act does not create any presump­tion in favour of the most comprehensive unit of employees, even though these employees may have a community of interest. 5ection 1(1)(b) of the Act states that: "'bargaining unit' means a unit of employees appropriate for collective bargaining, whether it is an employer unit or a plant unit or a subdivision of either of them." This provision makes it quite clear that the determination of appropriateness does not always lead to the conclusion that the most comprehensive unit is also the most appropriate unit. Consid­eration of the wishes of employees and of industrial relations policy, may very well dictate that a smaller bargaining unit is the appropriate unit.

20. It is also possible, of course, that different communities of interest will exist at one and the same time among several different groupings of employees. Obviously certain common employment interests exist among all employees of the respondent in Canada; the portion of those employees who are within Ontario have a further com­mon interest; and the group of employees working under the direction of the London regional office have employments interests in common that they do not share with their fellow employees elsewhere in Ontario or in Canada at large.

21. The Canada Trustco case ultimately decided that the single-branch bargaining unit for Sim­coe was appropriate, and, as will be discussed, that decision reflected an evolving pattern of sin­gle-branch organizing in both the financial and other sectors of he economy. Rowing from that, the respondent argues that an important measure of predictability has developed for trade unions and employees organizing in the financial sector, and that the Board ought not to jeopar­dize that position by moving to the unusual form of grouping being put forward by the applicant in this case. The respondent notes, in that regard, the observations of the Nova Scotia Labour Relations Board in Michelin Tires (Canada) Limited, [1979] 3 Can LRBR 429, at page 437:

Another set of factors which the Nova Scotia Board regards as important, and which often dictates our determinations of appropriateness, involves the legitimate expecta­tions of the parties to the certification process. Employees who want a union, and unions organizing them, must have a fair opportunity to know before applying for cer­tification what the appropriate bargaining unit will be held to be. The effort and expense of an organizing campaign and of the certification procedure itself should not have to be wasted because of an unpredictable Board decision that the unit applied for is not appropriate. This Board is not bound by any formal system of precedent to follow its own previous decisions but we must attempt to make sensible determina­tions of appropriateness which are consistent from one case to the next.

The concern there expressed by the Board, however, was that a particular bargaining unit previ­ously found to be appropriate would, without warning, be found by the Board after organizing not to be appropriate. That is not what is at issue here. And as difficult as it may be for any employer to accept, that is not the way the process has tended to work. The preamble to the Labour Relations Act discloses a clear legislative predilection toward the fostering of collective bargaining, and nowhere has that predilection been reflected more than in the determination of the "appropriate" bargaining unit under section 6(1). Each time the Board is persuaded to move to a further stage in bargaining-unit determinations, the history of the jurisprudence shows that the effect of that movement generally is to increase the options available to unions for organizing in the province. Exactly as applicant counsel has argued, in other words, the find­ing, if the Board were to make it, that a grouping of seven certifiable branches within Metro is the appropriate bargaining unit in the facts and circumstances of this case, would not in any way signal a rejection of the basis on which single-branch units have in the past been, or in the future would be, found to be appropriate (or the basis upon which they have been agreed to be appro­priate in the present case).

14. To recognize that reality, however, is not to say that employees or their trade union are given a free hand to determine the form which their organizing will take. see, in particular, the Hospital for Sick Children case, supra, at paragraph 17. The goal stated in the preamble itself is to further "harmonious" relations, and, there are other interests at stake, such as those of the employer in being able to efficiently manage its enterprise. The need for "appropriateness" in a bargaining unit at all times serves as a check against tipping the scales too far in the direction of accommodating the desire for self-organization. As the Board as early as the Ponderosa Steak House case, [1975] OLRB Rep. Jan. 7, put these competing considerations:

15. A primary theme set out in the Labour Relations Act, and affirmed by the Board, is the principle of freedom of association. The preamble to the Act makes it clear that it is the intention of the Legislature to encourage collective bargaining "between employers and trade unions as the freely designated representatives of employees." More specifically, section 6(1) of the Act expressly provides that the wishes of the employees as to the appropriateness of the unit are to be considered by the Board. In other words, the Act recognizes that it is desirable that employees be able to organize in a form that corresponds with their own wishes.

16. The right of self-organization, however, must at times compete with the need for viable and harmonious collective bargaining. Section 6 of the Act specifically requires the Board to determine, not just a unit of employees~ but "the unit of employees that is appropriate for collective bargaining." In other words, the Board has a responsibil­ity under the Act to create a rational and viable collective bargaining structure, even though the exercise of this responsibility may sometimes conflict with the right of self­organization.

17. In all cases the necessary balancing is made on the basis of the particular facts and interests in the specific case before the Board. As the Board described it in Canada Trustco, supra:

18. In any particular case, the determination of the unit of employees that is appropri­ate for collective bargaining must be grounded in the facts before the Board. The Act contemplates a process of unit determination that is not absolute and to a great extent the Board's determination must depend upon the competing alternatives presented by the parties. In the contemplation of the Act, therefore, the duty to determine the appropriate bargaining unit is a mandate to describe the unit in the light of the labour relations realities of the particular case.

The assessment of those "labour relations realities", at the same time, may be affected by his­torical perspectives, and form part of the continuing evolution of thought on bargaining unit "appropriateness". To draw upon the words of the Board in Hospital for Sick Children, sup ra, at paragraph 14:

……Real life collective bargaining experience has outstripped some of the conventional wisdom and has shown that the collective bargaining system can exhibit quite a vari­ety of structures, which, at one time, parties might have considered unconventional or inappropriate.

16. That process of evolution is well demonstrated in the history of this Board (and others) com­ing to define bargaining units in terms of single branches or outlets. The initial approach, that of all retail outlets within a municipality being considered the appropriate bargaining unit, was dis­cussed in the early case of Goodyear Service Stores, 65 CLLC 16,018. There the union applied for a unit of all of the employer's retail stores in Metro, and the employer argued that only indi­vidual stores were appropriate. The Board wrote:

…..In our opinion, where an employer conducts essentially similar retail or service store operations at a number of locations in a given geographical area it would not, generally speaking, be conducive to sound collective bargaining for a series of bar­gaining units to be established in respect of groups of employees performing similar tasks and having similar bargaining interests. Such a situation where some employees might be represented by one trade union, others by another and others not at all would be invidious from the employer and trade union points of view as well as from the points of view of most individual employees.

The Board, therefore, considers that the policy it has followed in cases of retail food markets, variety chain stores and brewers' warehousing stores, and which has fre­quently been applied in other cases involving retail or service stores, should be adopted as its general policy in cases of retail or service stores where the interests of employees throughout a group of stores can be said to be essentially similar as in the present case.

17. That was indeed the pattern for some time, but then a Board tolerance for individual branches, or outlets, at least where the union was the one seeking them, began to emerge, par­ticularly in the hospitality and financial sectors. The reason for that departure was succinctly stated by the Board again in Canada Trustco, [1977] OLRB Rep. June 330, at paragraph 27:

18. In determining the appropriate bargaining unit the Board cannot disregard the labour relations realities before it. When a group of employees signify that they wish to exercise their right to bargain collectively, and that grouping is seen by the Board as sufficiently conforming to the Board's criteria of appropriateness as a bargaining unit, this Board should not require bargaining in a more comprehensive unit if to do so would effectively impede the access of that group of employees to any collective bargaining at all. As was said by the British Columbia Labour Relations Board in Woodward Stores Vancouver Limited, [1975] 1 C.L.R.B.R. 114, quoting the earlier Insurance Corporation of British Columbia, (No. 2) decision of the same Board:

"However, clearly one can't have collective bargaining at all unless there is a unit in which a majority of employees will select a trade union's represen­tative. There are certain types of employees who are traditionally difficult to organize and there are some employers who are willing to exploit that fact and stipulate opposition to a representation campaign. If notwithstand­ing these obstacles, a group of employees within a viable unit wishes to have a union represent them, the Board will exercise its discretion in order to get collective bargaining under way. In that kind of situation, it makes no sense to stick rigidly to a conception of the best bargaining unit in the long term, when the effect of that attitude is to abort the representation effort from the outset."

18. In K-Mart Canada Limited, 11981] OLRB Rep. Sept. 1250, the applicant union had orga­nized one of the four retail department stores operated by the employer in Metropolitan Toronto. The employer argued that an all-Metro unit was the appropriate one. As in Canada Trustco, the Board noted:

19. ... Where it is raised as an issue the Board must consider the effect of a broader based unit upon employee access to collective bargaining within the industry. In addi­tion, the Board must recognize the wishes of the employees affected by the particular application to bargain collectively. This latter consideration requires the Board to take into account the pattern of organization in the case before it and to balance the pattern of organization against the disruptive effects of excessive fragmentation. The potential for fragmentation takes on an added weight where the Tribunal lacks the authority to restructure existing bargaining units at some future date.

The Board then went on to say:

18. As noted earlier the Board must balance a number of statutory objectives in the exercise of its discretion under section 6(1) of the Act to determine which is the appropriate bargaining unit in any given case. It is clear from a review of the authori­ties that the blanket policy enunciated in the Goodyear decision, supra, with respect to the geographic scope of bargaining units, where an employer conducts essentially similar retail or service store operations at a number of locations in a given geographi­cal area, has given way to a series of considerations which must be made in each case. Viability for purposes of collective bargaining, on an application of community of interest principles and a consideration of the effect of fragmentation, remains a pre­requisite for a finding of appropriateness. However, the Board recognizes that there may be more than one appropriate unit in any given case. Where there is more than one appropriate unit, the Board will attempt to accommodate the desire of the employees on whose behalf the application has been filed to bargain collectively. Furthermore, in making its determination, the Board will be mindful of the precedential impact of its decision. Where, as in the department store sector, collective bargaining has not taken a foothold, the Board will lean towards the bargaining structure which best facilitates organization.

And, once again in that case, to facilitate organizing, a single retail outlet within the municipal­ity was found to be the appropriate one.

19. Yet all of these departures ran contrary to the instinctive attractiveness of broader-based bargaining units, and the Board's preference for such units, where their impact would not stifle organizing, remained evident. In Canada Trustco itself, supra, the Board noted:

20. ... There is no presumption that the smallest unit in which a material community of interest can be found will be the appropriate bargaining unit. Along with the exis­tence of a separate community of interest within the smaller unit, the Board must weigh the risk of fragmentation and the manageability of that unit or a pattern of units like it from the standpoint of both parties. Balancing all of these factors the Board must strive to define a rational Dilantin of employees that will be a viable entity for collective bargaining.

And in Bestview Holdings, 11983] OLRB Rep. Aug. 1250, at paragraph 28:

28. Self-determination and community of interest often favour relatively small units, but these are not the only relevant factors in bargaining unit design. The Board must also strive to create a viable structure for ongoing collective bargaining and, to this end, undue fragmentation must be avoided. Consolidated bargaining offers several advantages over a fragmented structure. A proliferation of small units may result in unnecessary work stoppages. Each time one group goes on strike, other employees performing jobs that are functionally dependent upon the work normally done by strikers are brought to a halt. Even in the absence of functional integration, strikers may erect picket lines that keep other employees away from work. The likelihood of a strike occurring increases as the number of rounds of bargaining grows, and is further enhanced by competition among bargaining agents. Secondly, each of several units typically becomes a separate seniority district, enclosed by walls which impede the movement of employees between jobs. In addition, broader-based structures may lower the cost and thereby increase the availability of insurance schemes and benefit plans. A multiplicity of bargaining units also inevitably spawns jurisdictional disputes over the assignment of work and entails the cost of negotiating and applying several collective agreements. Finally, the

existence of a single bargaining unit facilitates equitable treatment of employees doing similar jobs.

Similar concerns have of course been reflected in the comments of other Labour Relations Boards. In the Michelin Tire case, supra, for example, the Nova Scotia Board observed:

…..Canadian Labour Relations Boards, including the Nova Scotia Board, have recog­nized that from the point of view of the employer and the public, and in some respects of the employees, there are important values to be served by certifying larger rather than smaller bargaining units. Stability in industrial relations and the viability of the bargaining units certified have been dominant concerns.

This view has also received substantial elaboration by the British Columbia Labour Relations Board, notably in the Insurance Company of British Columbia case, [1974] 1 Can LRBR 403. That case was decided at approximately the same time as the B.C. Board in Wood ward Stores, [1975] 1 Can LRBR 114, was granting certification for less than the full complement of retail outlets within a municipal area. In the ICBC case, the Board had before it the applications of three different trade unions, and the risks of undue fragmentation were readily apparent. In considering its overall approach to bargaining-unit determinations, the Board wrote, commenc­ing at page 407:

What are the standards which the Board should apply? The statute gives no specific direction for the exercise of our judgment and we must develop the guidelines on our own. That is a difficult task for several reasons, but primarily because there is a ten­sion between the two uses of the bargaining unit. On the one hand, the scope of the unit is the key to securing trade union representation and collective bargaining rights for the employees. Since this is a fundamental purpose of the Code, the Board's defi­nitions must be such as to facilitate organization of the employees. On the other hand, that unit sets the framework for actual bargaining for a long time into the future. A structure is needed which is conducive to voluntary settlements without strikes and will minimize the disruptive effects of the latter when they do occur. Unfortunately, the lesson of experience is that these two objectives often point in dif­ferent directions.

The simplest reason favouring one overall unit is administrative efficiency and convenience in bargaining. All other things being equal, it is preferable to have only one set of negotiations going on, rather than spreading management efforts among two or three or even more units.

A second administrative factor, this one clearly in the interest of both employer and employees, is the matter of lateral mobility. The presence of several bargaining units, each with their own seniority lists and different contract benefits, is an obstacle in the way of an employee's transfer or promotion out of the original unit into which he was hired. This limits the mobility of the employee whose place of residence may have changed and who thus needs a different job or the employee who wants to improve his job position through promotion to a position which has come open in another divi­sion. It also restricts management's range of selection among qualified persons to fill a job.

The existence of a single bargaining unit facilitates the achievement of a common framework of employment conditions - vacations, statutory holidays, overtime, insur­ance scheme, pension plan, and so on. ICBC has developed a wage structure whereby all the positions across every division have been evaluated and placed in some coher­ent relationship one to the other. It is unlikely that this pattern would continue if there were two units represented by different unions. Indeed, if we did not expect dif­ferent terms of employment to emerge, there is no reason to allow separate represen­tation for groups of employees.

Another factor favouring a single large unit is the objective of industrial stability. If there is one union and one set of negotiations, then the risk of strikes has to be less than if there are several unions negotiating separately.

20. In fact, the British Columbia Labour Relations Board's whole treatment of this issue is par­ticularly noteworthy. In Woodward Stores itself, supra, the Bakers' Union had organized at three of the employer's stores in Greater Vancouver, and applied to be certified for a separate unit at each of the stores. The employer raised the problem of fragmentation with the Board, and argued that the only viable unit for it was one composed of all nine of its stores in the prov­ince, or, alternatively, of all five of its stores in Greater Vancouver. In answer to the employer's submissions, the Board wrote at page 118, as noted in our own Canada Trustco, supra:

Whatever be the reasons for it, it remains a fact that if the Board were to focus on the long-range enquiry of how collective bargaining should best be carried on in the department store industry, it will likely achieve the short-run result that collective bargaining will not be conducted at all.

In deference to the employer's concerns, however, the Board went on to state:

We should not leave this discussion of the Board's general policy under s. 42 of the Code without some further remarks about how we do view the problems of the devel­opment of bargaining units for an employer. Counsel for Woodwards accurately depicted the industrial instability which can be produced by a multiplicity of unions in a patchwork of small bargaining units - whipsawing of the employer, consecutive strikes and picket lines, jurisdictional disputes and so on. That is the risk attendant on a policy of facilitating the achievement of collective bargaining through the building blocks of small units. For the reasons stated above, we do not feel it desirable to fore­stall any such risks by sticking rigidly to bargaining units so large that the process of collective bargaining is aborted before its birth. However, we do intend to minimize that risk through a policy of strict control over the growth in the number of bargaining units in an operation such as Woodwards.

There is one common practice, in particular, which produces excessive fragmentation of the employees of one employer or in one industry. A union applies to represent one small group of employees and obtains certification; a second union applies for certification for another small group and also is certified; after this process has contin­ued for a period, another union, (perhaps one of the incumbents) applies to be certi­fied for all of the employees except those already represented by someone else. One can understand why it is in the mutual interest of trade unions to reach that type of accommodation. However, the Board is determined not to permit that kind of prac­tice to build in, indefinitely, a large number of small collective bargaining relation­ships with one employer. We will be flexible in defining appropriate bargaining units in areas such as the department store industry to afford collective bargaining some room to put down firm roots. However, after a time, rather than creating new bar­gaining units, we will consider that the existing units must be enlarged or merged and all of those employees represented by one "trade-union

And concluded, at page 122:

While a single location bargaining unit must be considered appropriate in light of the history of bakery certifications in this province, we do consider this an apt case in which to apply our policy of minimizing the number of separate bargaining units at an employer such as Woodwards'. The Union has as members a majority of the bakery employees at each of the three store locations for which it has applied and has a sub­stantial majority when all three are put together. Consequently we conclude that there should be one unit comprising of all the bakery employees at the three locations.

In addition, the Board, out of a further concern for fragmentation, went on from there to state what has come to be known as the "Amon principle", as follows":

If and when the Union organizes the employees at the other locations the Board will enlarge this existing bargaining unit to include them.

21. Amon Investments Ltd. was a decision of the B.C. Board issued July 20, 1978. The employer owned a number of apartment buildings in Vancouver, and the union had applied for certifica­tion for the maintenance and service staff of one of them. Over the objections of the employer, the Board ruled that the employees working at that one location constituted a viable, separate bargaining unit. The Board then added, at page 20:

This conclusion does not, as we have previously hinted, require that we ignore the concerns expressed by counsel for the Employer with regard to the potentially incon­venient and disruptive consequences of a fragmentation of the employees into a num­ber of bargaining units. We return again to the Woodward decision. In granting the Bakery and Confectionery Workers International Union of America, Local 468, certi­fication for a unit comprised of bakery employees at only three of the several stores in which the employer in that case operated a bakery, the Board added:

if and when the union organizes the employees at the other locations the Board will enlarge the existing bargaining unit to include them."

We consider the same kind of qualification to be appropriately added to the certifica­tion the Board has granted the Union for the employees at the Nelson Place Apart­ments. The effect of this qualification is to confine the number of bargaining units to one only.

This principle was again made reference to by the B.C. Board in another case that year, The Original Dutch Pannekoek House, [1979] 1 Can LRBR 212, in which the Board certified a union for a bargaining unit of two of six restaurants in the City of Vancouver.

22. By 1981, the B.C. Board appears to have been lumping together a selected number of branch outlets of an employer as a matter of course. In Thompson Valley Savings Credit Union, Board decision numbered 414/81 and issued September 2, 1981, the union had applied for eight of the employer's branch credit offices, and then amended it to seven. The Board wrote, in con­struing the language of its own statute:

…..The Employer argues that the bargaining unit applied for by the Union is inappro­priate for collective bargaining. In respect of the initial application the Employer argued that branch-by-branch certification was the only appropriate way to have Union representation of the Credit Union's employees. With respect to the amended application the Employer argued, in addition, that the unit applied for by the Union is not appropriate even if an all-employee unit were considered appropriate by the Board.

This argument misconceives the requirement in the Labour code for a determination by the Board, in certifying unions, to find an appropriate bargaining unit.

Section 42(1) of the Labour Code reads as follows:

5. 42(1) Where a trade union applies for certification as a bargaining agent for a unit, the Board shall determine if the unit is appropriate for collective bargaining, and may, before certification, include additional employees in or exclude employees from the unit.

The Board is not required to determine which is the most appropriate bargaining unit, but rather must determine whether the unit for which the Union applies as bargaining agent is appropriate. There is not necessarily a particular bargaining unit which the only appropriate one for an employer. The determination which the Board must make is whether the bargaining unit for which the Union applies is an appropriate bargaining unit (of Royal Bank v. SORWUC, [1978] 1 Can LRBR 326).

In this case it may be arguable that individual branches of the Employer, or all branches of the Employer, are more appropriate bargaining units than the one applied for by the Union. However, that is not the determination which we must make. What must be decided is whether the unit applied for by the Union here is an appropriate bargaining unit. There is little doubt that the employees, while at differ­ent locations, share sufficient community of interest to be considered as within a sin­gle bargaining unit and I find that the unit applied for is an appropriate one for collec­tive bargaining.

Given the comments of the Board in our own province with respect to not being required to determine the "most" appropriate unit, cited above and below, it is not apparent that the differ­ence in the British Columbia language and our own section 6(1) is a material one.

23. Finally, the case of the B.C. Board in Sung Food, issued March 15, 1984, is interesting, not only because of some obvious parallels on the facts with our own, but also because it specifically addresses the question of how membership support is to be calculated. The employer operated eleven low-cost, self-service retail food outlets and a central warehouse in the Lower Mainland. The union applied for a unit consisting of four of the retail outlets. The original panel, concerned about "sweep-ins" decided that membership support should be calculated separately for each of the four store locations. The result of that was automatic certification for a bargaining unit consisting only of the two stores for which the union had better than 55 per cent, even though the union's overall percentage amongst the four stores exceeded 55 per cent. Both sides sought reconsideration of that decision.

24. On the "four stores out of eleven" issue, the review panel wrote, at page 4:

……in considering an appropriate bargaining unit we must consider not only the Employer's need for a structure minimizing industrial unrest in the long run but also the Union's request for a vehicle which will allow for the establishment of collective bargaining. This four-store unit achieves one of the goals; it permits trade union rep­resentation. Does it thwart the competing one?

First, the employees in these four stores presently share a common framework of employment conditions - a framework which can form the basis for a single collective agreement for all of those employees. Second, the employees in the four locations share a community of interest, receive the same training, work essentially the same hours for the same rate of pay and perform virtually identical duties. Third, although there are four different locations, the evidence reveals that there is some lateral mobility available to and utilized by the employees in each of those stores to transfer from one store to another. Finally, it is in the interests of the Employer to have a sin­gle bargaining unit where day-to-day decisions regarding the terms and conditions of employment of the employees, their continued employment, or their cessation of employment is administered through centralized management in a uniform and con­sistent manner.

The fact that there are seven other store locations which could, in the future, be var­ied into this bargaining unit does not detract from the existence of a rational and defensible line being drawn around the four units presently proposed.

And then, after a discussion of Woodward and Amon, at page 5:

…..here, an all-employee bargaining unit for all eleven stores and the central ware­house would clearly be the most appropriate bargaining unit. However, to require that would be to discourage the acquisition and exercise of collective bargaining rights which can be exercised and encompassed within the language of a single collective agreement.

The review panel then went on to decide that it had no jurisdiction to apply the 55 per cent test to any constituent part of an applied-for bargaining unit, and certified the union for a unit of all four stores, on the basis of its overall percentage. Whatever we might say about that latter aspect of the British Columbia Board's approach to the question, the foregoing review of the jurisprudence appears to produce one common theme in the inclinations of Labour Boards across the country when called upon to determine the "appropriateness" of a bargaining unit: except to the extent that it would unduly create an obstacle to the introduction of collective bar­gaining at all, for a variety of labour-relations considerations affecting all parties to an applica­tion for certification, as well as the public, generally "bigger is better".

25. Before turning to the facts of our on case, it is important to refer once again to the present state of the jurisprudence on bargaining-unit "appropriateness" in the province of Ontario. That state is best set out in the Board's recent decision, adverted to earlier, in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266. To begin with, that case notes the following passage from Kidd Creek Mines Ltd., [1984] OLRB Rep. March 481:

26. We may begin by observing that the notion of an "appropriate" bargaining unit is a labour relations concept with no common law antecedents and in the general case, no precise statutory definition. What it means, quite simply, is the group of employ­ees whom it makes "labour relations sense" to lump together for the purpose of col­lective bargaining, and section 6(1) of the Act leaves the Board's discretion to fashion bargaining units largely unfettered.

And further, at paragraph 20:

20. In Kidd Creek (and Stratford General Hospital, to a lesser extent), it was sug­gested that an inappropriate or unduly fragmented bargaining structure could contrib­ute to subsequent labour-management problems, tension within and between bargain­ing units, and an escalation of industrial conflict. Such outcomes are undesirable. If these problems can be avoided by more careful attention to the determination of the bargaining unit "at the front end", without prejudicing other collective bargaining or statutory objectives, then that attention is obviously warranted.

And finally, at paragraph 23:

We are troubled by the fact that a largely administrative and policy-laden determi­nation has mushroomed in some cases into an elaborate, expensive, and time-consuming process for deciding a relatively simple question: does the unit which the union seeks to represent encompass a group of employees with a sufficiently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer.

[emphasis added]

35. The final point that the Board must consider is the respondent's submission that the Board ought not to use its power to determine bargaining units as a means of addressing the question of relative strength at the bargaining table. The respondent submits that that is a matter appro­priate for the parties themselves to address in bargaining, and the respondent points in support to the decision of the Canada Labour Relations Board in Bank of Montreal, [1982] 2 Can LRBR 390.

36. We fully recognize that the designation of "the appropriate bargaining unit" by the Board may carry with it a significant impact on, amongst other things, the question of strength at the bargaining table. As the Board noted in Kidd Creek Mines Ltd., [1984] OLRB Rep. March 481, at paragraph 50:

…..section 6(1) of the Act leaves the Board's discretion to fashion bargaining units largely unfettered. Yet the Board's determination is obviously of immense practical importance, not only for the immediate parties, but for the structure and performance of the collective bargaining system as a whole. The definition of the unit affects the bargaining power of the union and the point of balance it creates with that of the employer. It influences the potential scope and effectiveness of collective bargaining for dealing with different matters, and to some extent, even the substantive issues covered in the collective agreement. And, perhaps most important, the shape of the bargaining unit can profoundly influence the potential for industrial peace or collec­tive bargaining discord.

And, ironically, as was also noted in K-Mart Canada Limited, [1981] OLRB Rep. Sept. 1250, at paragraphs:

The company maintains that the Board must look to bargaining structures which will work and argues that the proven viability of all-store units should convince the Board to follow its standard practice with respect to retail outlets. The company points to the certification within the banking industry on a branch by branch basis as an example of a bargaining structure which has not worked.

8. Returning to the facts, the Place de Ville theatre is run essentially as an independent branch. The Manager makes all decisions with respect to hiring, firing, and scheduling of employ­ees. Although employees from Place de Ville do work at other theatres, and employees throughout the 8 theatres do work shifts at different theatres, the "transfers" or additional simultaneous shifts are agreed to by employees and are usually shifts in addition to their regular shifts at their base theatres. Although fragmentation and a potential multiplicity of bargaining units could result if a single theatre is found to be appropriate, as the jurisprudence recited indicates, those legitimate and significant concerns must be weighed against the obstacles to organizing that would be created by finding a multi-branch bargaining unit to be the only appropriate bargaining unit.

9. It may well be that the employer's prediction will prove to be accurate and the bargain­ing unit sought by the applicant will not provide it with sufficient bargaining strength to secure any significant gains for the employees. But this potential bargaining strength problem does not war­rant the conclusion that bargaining would not be viable in what is otherwise an appropriate unit, a unit where employees share a sufficiently coherent community of interest.

10. In the result, we are satisfied that the bargaining unit sought by the applicant is an appropriate bargaining unit, and having regard to the agreement of the parties, the Board finds that all employees of the respondent regularly employed for not more than twenty-four (24) hours per week at the Place de Ville cinemas, 300 Spark Street, Ottawa, save and except supervisors, persons above the rank of supervisor, office and clerical staff and projectionist constitute a unit of employees of the respondent appropriate for collective bargaining.

11. 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 June 27, 1989, 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.

12. A certificate will issue to the applicant.