International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 357 v. Famous Players Inc., 1993 CanLII 7878

[1993] OLRB Rep. December 1270

2036-93-U International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 357, Applicant v. Famous Players Inc., Responding Party

BEFORE: R. O. MacDowel!, Alternate Chair, and Board Members R. M. Sloan and B. L. Armstrong.

APPEARANCES: Larry Steinberg for the applicant; Harry Freedman, Michael Scher, Beth Pierson and Brian Holberton for the responding party.

DECISION OF THE BOARD; December 16, 1993

I

1. In this application the union asserts that the employer has contravened section 73.1 of the Labour Relations Act. That section limits the use of replacement workers when employees in a bargaining unit are on a lawful strike. Section 73.1 reads as follows:

73.1-(1) In this section,

"employer" means the employer whose employees are locked out or are on strike and includes an employers' organization or person acting on behalf of either of them;

"person" includes,

(a) a person who exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations, and

(b) an independent contractor;

"place of operations in respect of which the strike or lock-out is taking place" includes any place where employees in the bargaining unit who are on strike or who are locked-out would ordinarily perform their work.

(2) This section applies during any lock-out of employees by an employer or during a lawful strike that is authorized in the following way:

1. A strike vote was taken after the notice of desire to bargain was given or bargaining had begun, whichever occurred first.

2. The strike vote was conducted in accordance with subsections 74(4) to (6).

3. At least 60 percent of those voting authorized the strike.

(3) For the purposes of this section and section 73.2, a bargaining unit is considered to be,

(a) locked out if any employees in the bargaining unit are locked out; and

(b) on strike if any employees in the bargaining unit are on strike and the union has given the employer notice in writing that the bargaining unit is on strike.

(4) The employer shall not use the services of an employee in the bargaining unit that is on strike or is locked out.

(5) The employer shall not use a person described in paragraph 1 at any place of operations operated by the employer to perform the work described in paragraph 2 or 3:

1. A person, whether the person is paid or not, who is hired or engaged by the employer after the earlier of the date on which the notice of desire to

bargain is given and the date on which bargaining begins.

2. The work of an employee in the bargaining unit that is on strike or is locked out.

3. The work ordinarily done by a person who is performing the work of an employee described in paragraph 2.

(6) The employer shall not use any of the following persons to perform the work described in paragraph 2 or 3 of subsection (5) at a place of operations in respect of which the strike or lockout is taking place:

1. An employee or other person, whether paid or not, who ordinarily works at another of the employer's places of operations, other than a person who

exercises managerial functions.

2. A person who exercises managerial functions, whether paid or not, who ordinarily works at a place of operations other than a place of operations in respect of which the strike or lock-out is taking place.

3. An employee or other person, whether paid or not, who is transferred to a place of operations in respect of which the strike or lock-out is taking place, if he or she was transferred after the earlier of the date on which the notice of desire to bargain is given and the date on which bargaining begins.

4. A person, whether paid or not, other than an employee of the employer or a person described in subsection 1(3).

5. A person, whether paid or not, who is employed, engaged or supplied to the employer by another person or employer.

(7) The employer shall not require an employee who works at a place of operations in respect of which the strike or lock-out is taking place to perform any work of an employee in the bargaining unit that is on strike or is locked out without the agreement of the employee.

(8) No employer shall,

(a) refuse to employ or continue to employ a person;

(b) threaten to dismiss a person or otherwise threaten a person;

(c) discriminate against a person in regard to employment or a term or condition of employment; or

(d) intimidate or coerce or impose a pecuniary or other penalty on a person,

because of the person's refusal to perform any or all the work of an employee in the bargaining unit that is on strike or is locked out.

(9) On an application or a complaint relating to this section, the burden of proof that an employer did not act contrary to this section lies upon the employer.

[emphasis added]

2. As will be seen, the date of the "notice to bargain" provides a reference point for calculating who the employer can and cannot use as a "strike replacement". There are limitations on the use of persons transferred to the "struck location" after the union has begun the bargaining process by sending its notice to bargain.

II

3. The company operates two theatres in Kitchener, Ontario, known as the King's College Square Cinema, and the Capital Theatre. The two theatres employ a number of workers, including: projectionists, ushers, doorpersons, box office staff, and miscellaneous service employees. There is also a small complement of managerial personnel which currently includes: Darren Phillips, Christina Knudsen, Nicole Mayer, and A. Texeira.

4. Darren Phillips is currently employed as an "assistant manager". He has a first-class projectionist's licence which, under the Theatres Act, entitles him to operate projection equipment; however, he is not employed as a projectionist and his ordinary duties do not encompass the operation of a projector. The projectionists can and do run the equipment on their own, without Mr. Phillips' assistance, instructions, or supervision.

5. At the time of the notice to bargain, Mr. Phillips was working as an assistant theatre manager in Toronto. He was not employed as a projectionist nor working in Kitchener. The parties are agreed that because Mr. Phillips was transferred to Kitchener after the notice to bargain was given, he is not a managerial person entitled to perform bargaining unit work during a strike.

6. Christina Knudsen is also an assistant manager in Kitchener. She holds an apprentice projectionist's licence that permits her to operate projection equipment "under the direct supervision" of another licensed operator. Ms. Knudsen has worked in Kitchener since January 1992, but she has not worked as an apprentice projectionist, nor operated projection equipment as part of her regular duties. However, because she was on site prior to the notice to bargain, she is not caught by the "transferee limitations" of section 73.1. Unlike Mr. Phillips, she is allowed to do bargaining unit work during a strike.

7. The two theatres in Kitchener operate under the auspices of the Theatres Act, which regulates various aspects of the theatre business. That Statute imposes these restrictions:

8. No person shall,

(a) operate a projector designed for the use of standard film; or

(b) operate a projector in a Class A or C theatre;

unless the person is licensed as a projectionist under this Act and no licensee, manager or person in charge of a Class A or C theatre shall permit any person to operate a projector in the theatre unless the person is licensed as a projectionist under this Act.

24. Projectionist licences are classified as first class, second class and apprentice.

(REGULATION)

10. A holder of an apprentice licence shall only operate projection equipment designed for the use of standard film in a theatre under the direct supervision of a projectionist holding a licence as a first-class projectionist or a second-class projectionist.

11. We were told that these regulations are something of an anomaly, stemming from an era when employees needed significant skills to operate projection equipment, and there was some risk to the operator and the public. We were told that times have changed: technical innovations have eliminated both the risks and skill requirements. Today, projectors are safe and relatively simple to operate, so that some provinces have discarded the licensing restrictions formerly in place.

12. But Ontario has not. In Ontario, certain equipment can only be operated by a licensed employee. In the case of an "apprentice", the equipment can only be operated "under the direct supervision" of a first or second-class projectionist. The equipment cannot be run by unlicensed personnel, and an apprentice cannot run the equipment without supervision.

13. The regulations do not define what the required "supervision" of apprentices might entail; but presumably it involves what we might describe as "operational supervision". The projectionist monitors, instructs and corrects the apprentice, to ensure that the equipment is being operated in a safe and appropriate manner. This supervisory function is related to the superior knowledge and experience of the projectionist, which s/he is expected to impart to the apprentice. It is linked to training and skill, rather than "managerial" authority as that term is used in section 1(3) of the Labour Relations Act.

III

11. The union represents the projectionists who work at the employer's two theatres in Kitchener. The bargaining unit consists of two regular employees (one for each theatre). There is also a third, casual employee, who fills in, from time to time, when the regular projectionist is unavailable.

12. The union's bargaining rights are confined to the projection booth. The other theatre employees are unrepresented.

13. Ordinarily, there is only one company employee in the projection booth: the licensed projectionist, who operates the equipment, and does miscellaneous related tasks, including minor maintenance and adjustment, inspection, replacement of defective parts, housekeeping, paper work, and so on. No one else is employed by the company to undertake these tasks. They are performed exclusively by the licensed projectionist, who is the only "bargaining unit employee" in the theatre.

14. The company does not employ apprentice projectionists. Indeed, the union has not permitted the company to select and train apprentices, or to place other employees in the projection booth for training purposes. When the company wishes to train its own staff, it must do so at another location, away from the bargaining unit, using instructors who are not members of the union.

15. Because the company has not been permitted to hire or use apprentices for operating purposes, the projectionist members of the bargaining unit have never been required by the company to "supervise" apprentice employees. That has not been part of their job functions.

16. This is not to say that there have never been persons in the projection booth who are being trained or supervised by the projectionist. This does happen from time to time. But these individuals have not been employees of the company, nor have they been persons selected by the company for training. They have been "outsiders", chosen for apprenticeship training by the union, and permitted to be present in the projection booth by virtue of Article 10.01 of the collective agreement:

10.01 The Union has the right to place apprentice(s) in any theatre(s) covered under this Agreement for the purpose of training. Only apprentices recognized and approved by the Union will be allowed in the Projection suite for training as Projectionists. The names of all proposed Projectionist trainees shall be submitted to the Employer in writing who for reasonable cause conveyed to the union in writing shall have the right to refuse any nominee, subject to Article 6.

[emphasis added]

These persons are there at the behest of the union, not the company; and while there is a possibility that they may be eligible for employment at some time in the future, there is no settled arrangement in this regard.

17. In summary, the training or supervision of apprentices has not been a function which the company has been permitted to require of bargaining unit members, or which bargaining unit members have undertaken on the company's behalf. Projectionists have not been directed by the company to do this "work" or paid specifically to do this "work". However, this "work" has been done on company premises and company time by bargaining unit members who were being paid while they were doing it; and no one else has done it at the Kitchener locations.

18. The union and the company were parties to a collective agreement which expired on January 7, 1993. That collective agreement contains a number of clauses which describe, or relate to, the work of the bargaining unit:

UNION RECOGNITION

2.01 The Employer recognizes the Union as the sole and exclusive bargaining agent for motion picture machine operators (employed by the Employer) within the territorial jurisdiction granted to the union by the International Alliance of Stage Employees and Motion Picture Machine Operators of the U.S. and Canada.

MANAGEMENT RIGHTS

3.05 A projectionist will present to the Employer film inspection reports, performance interruption reports, payroll time sheets, requisition for supplies form, booth inventory report, maintenance log and other relevant reports when requested by the Employer for the proper operation and administration of the projection suite. Such reports will be performed during regular hours or other paid hours where possible. If a projectionist is required to complete reports outside of the Regular and paid hours the service and repair rate will be paid with a two hour minimum.

UNION SECURITY

4.01 The Employer agrees to employ only motion picture machine operators and stage employees supplied by Local 357 and further agrees to only employ members of the Union who are in good standing. It is, however, the responsibility of the Union to inform the Employer if a member is not in good standing.

4.02 The Union agrees to supply competent and efficient Projectionists and stage employees to perform work as required by the Employer under the provisions of this Agreement. Both parties agree to make every effort not to permit employees covered by this Collective Agreement to contravene the provisions of the Employment Standards Act in complying with this Agreement.

JURISDICTION

5.01 All moving picture projection equipment, video projection equipment, satellite receivers, laser projection equipment, television and telemeter operation and other electronic equipment including the projection of all films of every kind and character regardless of size, in theatres and places (excluding telemeter, television and video tape equipment situated in the lobby and areas adjacent to the theatres and places for which no separate admission may be charged) in which the EMPLOYER now or hereafter may maintain within the jurisdiction of Local 357 is subject to all terms of this Collective Agreement herewith set forth. All such equipment and other theatre equipment requiring operation by a projectionist shall be manned only by members of this Union. This shall include all premises of the EMPLOYER, directly or indirectly, where motion pictures are projected or run and shall include any image or sound which is projected by any use of film, screen or otherwise. It is understood and agreed that the EMPLOYER will recognize and employ members of the Union.

5.02 The Union shall supply persons to construct, install and erect stage equipment, such as screens, screen frames, screen maskings, curtains, curtain travellers and lines, draperies and acoustics, and shall construct, install and erect all scenery used on stage or within the premises of the theatres or theatres owned or operated by the Employer or its subsidiaries within the aforementioned jurisdiction. The number of persons required shall be negotiated and mutually agreed upon between the Employer and the Union's business agent or authorized Representative.

5.03 All stage lighting and equipment used for the presentation of stage shows shall be installed and operated by members of Local 357 as referred to hereinbefore. There shall be a minimum three (3) hours for each of the take-in, performance and take-out, with the wage to be negotiated when required.

5.04 When a contractor or sub-contractor is to install any equipment as outlined in clauses 5.01, 5.02, 11.14, 11.15, 11.16, or is to carry out any of the aforementioned work in any theatre or theatres owned or operated by the Employer or its subsidiaries, the union shall be notified forty-eight (48) hours in advance, whenever possible, and will supply members as required pursuant to the above clauses.

9.05 COMPONENTS OF GROSS EARNINGS

REGULAR HOURLY earnings

ADDITIONAL TIME earnings

PUBLIC HOLIDAY premium

PUBLIC HOLIDAY ADDITIONAL TIME

MORNING OPERATIONS earnings

EXTRA MATINEE earnings

CONTINUOUS OPERATIONS earnings

LATE OPERATIONS earnings

SERVICE & REPAIRS earnings

EQUIPMENT INSTALLATION earnings

MAKE-UP & BREAKDOWN earnings, if any

PREPARATION TIME (This shall form part of the Regular Hours)

11.14 Service and Repairs

No inspection, transmission tests, sound service or repair work on equipment, as outlined in Article No. 5.01, may be performed in the booth without the presence of the regular Projectionist. The Regular Projectionist will be made available and paid at the Service and Repair Rate detailed in Appendix “A” of the theatre involved, with a two hour minimum, without Pension deductions and contributions and without Health and Welfare Benefit deductions or contributions. The two (2) hour minimum will not apply where the hours worked are contiguous to the REGULAR HOURS or other paid hours.

11.15 Equipment Installation (Existing Theatres)

For any major installation, replacement or modification of equipment, as detailed in Article 5.01, in an existing theatre, the Regular Projectionist will be made available to perform such work as is required and he/she will be paid at the SERVICE AND REPAIR HOURLY RATE, as detailed on Appendix “A” of the theatre involved, with a 2 hour minimum, without Pension deductions and contributions and with Health and Welfare Benefit deductions or contributions. The two (2) hour minimum call will not apply where the hours worked are contiguous to the REGULAR HOURS or other paid hours.

11.16 Equipment Installation (New Theatre)

If the EMPLOYER develops a new theatre requiring the installation of equipment, as detailed in Article 5.01, the UNION will be notified and will provide a competent employee to perform such work as is required. The UNION will advise the EMPLOYER, in writing, the name(s) of the regular Projectionist(s). The total cost to the EMPLOYER for such equipment installation work will not exceed two (2) weeks REGULAR WEEKLY BOOTH COST of the theatre involved subject to the prevailing applicable benefits, regardless of the number of Projectionists supplied by the UNION or the number of hours worked by the Projectionist(s).

14.02 Film Carrying

The projectionist will not be required to carry film to and from the projection suite, except to the extent that there are no other employees of the employer capable of doing so within the theatre, or if an emergency arises.

[emphasis added]

19. The agreement reserves bargaining unit work to union members of the bargaining unit, and describes that work in a variety of ways - including by reference to types of equipment. The work is described generically, in accordance with the union's traditional craft jurisdiction and work claims - even though the employer may not have the particular equipment contemplated by the agreement. (See, for example, Article 5.02.)

IV

20. On November 26, 1992 the company gave the union notice of its desire to bargain a new collective agreement. That notice set in motion the collective bargaining process regulated by the Act. The date of the notice also provides the reference date for some of the restrictions imposed by section 73.1.

21. Following the notice to bargain, the parties met on a number of occasions between April 1993 and September 1993 in an effort to conclude a new collective agreement. They were unable to reach agreement. On September 2, 1993 the membership of Local 357 voted 21-2 to authorize a strike. All members of the Local voted - not just the two employees working for Famous Players.

22. No objection is taken to the result of this strike vote or the manner in which it was conducted.

23. On September 3, 1993 the Minister of Labour advised the parties that he had decided not to appoint a conciliation board. Subsequent mediation efforts did not resolve the collective bargaining impasse. A lawful strike began on Monday, September 20, 1993.

24. Once the strike began, the company decided to close the Capital Cinema. It has continued to operate the cinema at King's College Square. The way in which it has done so gives rise to the present proceeding.

25. The union's complaint involves three distinct areas of concern:

(1) the activities of Mr. Phillips at the beginning of the strike, when he operated the projection equipment and performed the ancillary functions ordinarily done by a bargaining unit projectionist;

(2) the activities of a subcontractor whose employees were installing or upgrading the projection equipment, and, while so doing, performed some incidental work that a projectionist normally does;

(3) the activities of Ms. Knudsen and Mr. Phillips who, together, continue to run films on the projection equipment - with Ms. Phillips, the apprentice, doing the actual operation of the projector, and Mr. Phillips, with his first-class licence, providing the "supervision" required by the Regulations under the Theatres Act.

The union's primary concern is Item 3, because without Mr. Phillips and Ms. Knudsen to run the equipment, the theatre would not be able to stay open.

26. The employer concedes that some of the activities described in items 1 and 2 above, involve a breach of section 73.1 of the Act; however, the employer submits that these are isolated "technical" violations, arising from the local manager's ignorance of the new law. Any improper conduct came to an end prior to the hearing, and is unlikely to be repeated. Counsel submits that, in the circumstances, no remedy is necessary or appropriate. The company denies that its current mode of operation involves any breach of section 73.1, because, it argues, "supervising" an apprentice (what Mr. Phillips is doing) is not, and never has been, "bargaining unit work", and Ms. Knudsen is permitted to do bargaining unit work.

27. It will be convenient to examine these situations one by one.

Mr. Phillips' Activities at the beginning of the Strike

28. The strike began on Monday, September 20. When the projectionist did not report for work by the time the show was to begin, Mr. Phillips threaded the film into the projector and pushed the start button. Since the system is automated, there was little else for him to do. There is no dispute, however, that on Monday, September 20, Mr. Phillips performed the work ordinarily done by a bargaining unit projectionist - including the operation of the projector and any ancillary duties. He did the same work on Tuesday, September 21, and for the early evening show on Wednesday, September 22.

29. Late in the day on Wednesday, September 22, Mr. Phillips was advised by his superiors that he was not permitted to do bargaining unit work and should stop doing so. Since that time (with one exception) he has not touched the projector or the film. It seems clear, however, that on September 20, September 21, and September 22, Mr. Phillips' conduct was contrary to section 73.1 of the Labour Relations Act, and we so declare.

30. Should the Board go further and issue a cease-and-desist direction? The company submits that such direction is unnecessary because the illegal conduct has ended and will not be repeated. But even after the warning and instructions from senior management, Mr. Phillips handled some film in circumstances which, again, involved his doing bargaining unit work and which triggered a further complaint from the union and admonition from his superiors, instructing him not to do so. And Mr. Phillips (on behalf of the employer) has continued to contravene the Act in other ways which were ongoing at the time of the hearing (see below). In the circumstances, the Board considers it appropriate to supplement management's instructions with its own cease-and-desist direction, ordering Mr. Phillips not to do bargaining unit work, and prohibiting the company from further contraventions of section 73.1.

The Activities of the Subcontractor and its Employees

31. The company has a long-standing commercial relationship with a firm known as "General Sound". General Sound is engaged, as necessary, for the installation, repair or maintenance of projection equipment. When there is work of this kind to be done, General Sound is retained, and performs that work with its own technical employees. Those technicians are also members of IATSE, with which General Sound has a collective bargaining relationship.

32. After the commencement of the strike, it was necessary to install new "platters" on the projection equipment, as part of a systems upgrade. The work was done by two technicians (members of a sister IATSE local), and a technical supervisor. The work took about six and a half hours to complete.

33. No objection is taken to the installation of the new equipment or the modification work in which the technicians were engaged. It is acknowledged that this is the kind of work that they normally do, and that it is not ordinarily done by a bargaining unit projectionist. At the very least, it is work which the technicians are entitled to do, and the union makes no complaint about it.

34. The problem arises because when work of this kind is undertaken, Article 11.15 of the collective agreement provides that "the regular projectionist will be made available to perform such work as is required and he/she will be paid at the service and repair hourly rate .... with a two-hour minimum ....". Similarly, when service or repairs are to be done, the regular projectionist is to be present and "made available".

35. This stand-by provision is primarily intended to protect the projectionist from income loss, and does not entail any specific obligation to do particular work; moreover, as a practical matter, the projectionist's role has been limited to "helping out" the technician, to the extent that the technician considers it necessary. Since the technician and the projectionist are members of the same union, and are both being paid for their time, they ordinarily do help each other out. But such assistance is rendered on an entirely fluid and flexible basis, which involves no precise work definition, work limitations, or work obligations.

36. All that can be said, therefore, is that if there had not been a strike, the regular projectionist would have been available, and probably would not have been totally idle for the six hours or so, that the technicians were working in the projection booth. In all likelihood, the projectionist would have helped out as he has done in the past. But it is quite impossible to say what work or how much work he would have done. The fact is, there is an overlap of employee functions which cannot be unraveled and was never considered relevant prior to the passage of section 73.1.

37. In the circumstances, while there may well have been some minor contravention of section 73.1, the Board sees no purpose in making such declaration or making any remedial direction.

The Working Relationship of Ms. Knudsen and Mr. Phillips

38. Since Wednesday, September 22, Mr. Phillips has not actually operated the projection equipment, nor, after some initial instruction, has he told Ms. Knudsen how to do so. As we have mentioned above, Ms. Knudsen already has an apprentice projectionist's licence and knows, in a general way, how to operate the equipment. The operation of the projector may not be as simple as "threading the film and pushing the buttons", but the task is not a difficult one, so long as the equipment does not malfunction, and does not need any significant adjustment.

39. But whatever Ms. Knudsen's abilities may be, and whether or not she is able to operate the equipment entirely on her own, the fact is, Mr. Phillips is the only employee with the technical skills to provide any supplementary advice or assistance that she may require; and, more significantly, he is the only person able to provide the "supervision" of an apprentice that is required by the Theatres Act. If Mr. Phillips cannot "supervise" Ms. Knudsen, Ms. Knudsen cannot run the projector by herself - even if she has the technical knowledge and mechanical ability to work without supervision - because the Theatres Act prohibits her from doing so. And if Ms. Knudsen cannot run the projector, there is no one else on site able to do so.

40. Is this kind of "supervision" to be considered "bargaining unit work", which Mr. Phillips is prohibited from doing? The company claims that it is not bargaining unit work, because "supervising" apprentice employees is not something that bargaining unit employees have done in the past, and is not work specifically described in section 5 of the collective agreement. Counsel asks parenthetically: if the "supervision" function is not work claimed in the collective agreement, ts not work that bargaining unit employees have actually done for their employer in the past, and is not work which the union will even permit bargaining unit employees to do (because the employer cannot use apprentice employees), how can it be "bargaining unit work" within the meaning of section 73.1?

41. The answer, we think, lies in a purposive reading of section 73.1, and an appreciation of the way in which the section is structured to achieve that objective.

42. The purpose of section 73.1 is to inhibit a struck employer's ability to carry on business. The Legislature has decided that it is appropriate to enhance the union's power to wage a successful strike, by limiting the means open to an employer to resist. When bargaining unit members withdraw their labour, the employer is prohibited from drawing upon specified pools of replacement labour (bargaining unit members who don't support the strike and may wish to work, employees from other locations, managers from other locations, transferees after the notice to bargain is given, the employees of a subcontractor, volunteers, etc.). Section 73.1 is not confined to "strike breakers" in the traditional sense. It encompasses a wide variety of potential sources of substitute labour. It is substitute labour or "replacement workers" that is the focus of the section, and it is in that light that one must consider the concept of bargaining unit work: the Statute prohibits employers from using replacement workers to get the strikers' job done.

43. We agree with company counsel that the collective agreement and past practice may provide considerable assistance in determining "the work of an employee in the bargaining unit that is on strike ...". But we do not think that these sources are necessarily conclusive. Nor do we think that the Statute requires a minute or abstract examination of every function performed by bargaining unit employees in the past.

44. The fact that a function is specified in the collective agreement is persuasive evidence that the particular function should be considered the work of bargaining unit members (although perhaps not exclusively). Similarly, past practice may provide some useful guidelines: the "work of employees in the bargaining unit" is what employees, in the past, have customarily done. But the impact of a strike may well prompt an employer to modify the way in which work is performed, so that there may not be an exact correlation with what went before. Individuals may be doing "the work of employees in the bargaining unit" within the meaning of section 73.1, even though the work might not have been done that way before.

45. A hypothetical example may illustrate what we mean.

46. Suppose the employer's operation required employees to handle material and move boxes. Suppose that they ordinarily did that work by using motorized lift trucks, and that there is a "lift truck driver" rate in the collective agreement. Clearly the operation of a lift truck would be considered bargaining unit work. But so is moving boxes. Thus, if the employer hired six new workers during a strike to move the boxes manually, that would still be "bargaining unit work", even though members of the bargaining unit may not have performed that precise function before.

47. In our view, the Statute requires a more general or common-sense approach, bearing in mind that section 73.1 is designed to prohibit the substitution of replacement labour for that of bargaining unit members. With that in mind, it is easy to conclude, quite simply, that "the work" of an employee in a projectionists' bargaining unit is the operation of projection equipment.

48. What one needs to operate projection equipment, lawfully, is a set of skills that can be applied to the job at hand, and a licence that permits such application. Prior to the strike, the legal, physical and intellectual capacity to do the job were combined in a single person, whereas now, the company is seeking to have the projector run by two persons: Ms. Knudsen who is doing the physical work, and Mr. Phillips who is providing the operational supervision required by the Statute. Ms. Knudsen and Mr. Phillips, together, are doing the work of the striking projectionist:

operating the projector in a safe and efficient manner in accordance with the law.

49. Ms. Knudsen is entitled to be a strike replacement. She was on the premises prior to the notice to bargain. But Mr. Phillips is prohibited from doing "the work of an employee in the bargaining unit that is on strike".

50. However, even if we were to confine the analysis to the past practice and the terms of the collective agreement, we would still conclude that supervising apprentices is the work of the bargaining unit within the meaning of section 73.1.

51. There is no doubt that supervising apprentices operating the company's equipment has been done before, by bargaining unit projectionists. This is a recognized function which projectionists are entitled to perform while on the job and while they are being paid by the company (see Article 10.01 of the collective agreement). Nor is there any doubt that if the company engaged apprentices, a bargaining unit person would be responsible for their "supervision". Managerial personnel like Mr. Phillips would not have that responsibility. Finally, we should note that the agreement requires the union to supply competent and efficient projectionists (Article 4.02), and in order to meet that obligation, the union may have to train and supervise prospective employees in precisely the same way that Mr. Phillips is now monitoring Ms. Knudsen. Indeed, that is why projectionists have provided such training: so the union can send competent personnel when requested to do so by this employer or others.

52. Against that background, we find it difficult to accept the employer's contention that what Mr. Phillips is now doing, is not part of the work of an employee in the bargaining unit. The fact that the employer is trying to get that work done in a different way, using managerial personnel, does not alter its characterization as bargaining unit work.

53. For the foregoing reasons, the Board concludes that the employer is not permitted to use Mr. Phillips to supervise Ms. Knudsen's operation of the projection equipment. Such use contravenes section 73.1 of the Act.

54. The employer is therefore directed to immediately stop using Mr. Phillips in this capacity and for this purpose. No order is made in respect of Ms. Knudsen because her activities do not contravene the Labour Relations Act and the Board has no authority to enforce the Theatres Act.

55. The Board will remain seized with respect to any outstanding remedial issue attributable to the above-described breaches of section 73.1 of the Act.

DECISION OF BOARD MEMBER R. M. SLOAN; December 16, 1993

1. I dissent from the majority decision.

2. For the majority decision to find that while Ms. Knudsen has the right under the Act to perform bargaining unit work during the course of the strike but she is nevertheless prohibited from exercising that right because she is not being supervised by a striking member of the bargaining unit, is difficult to understand and accept.

3. It is an agreed upon fact that bargaining unit projectionists have never supervised or trained apprentice projectionists who were employees of the company and indeed would never be expected to exercise such function under the provisions of the collective agreement nor as part of their regular job duties. How can the Board conclude that work that has never been done by bargaining unit members in relation to fellow employees is somehow bargaining work?

4. The supervision and training of employees, including the bargaining unit projectionists when at work, rests solely with company management, and it is in the exercising of these functions that Mr. Phillips supervises the work activities of Ms. Knudsen. It is clear that under no circumstances could the supervisory functions performed by Mr. Phillips in his working relationship with Ms. Knudsen from September 23rd. onward constitute the performance of bargaining unit work.

5. The Position Description Guidelines filed by the respondent at the outset of this hearing, for the job of Assistant Manager - the position currently held by Mr. Phillips - clearly states under Sec. II - Responsibilities and Duties that the Assistant Manager:

2.b) Hires and supervises theatre staff to maintain well groomed, trained and mannered and motivated employees.

6. Of prime significance, in my view, is the fact that Ms. Knudsen is not an apprentice in training as defined under section 10.01 of the collective agreement. She is assigned to the job in the projection suite solely by the employer exercising its rights under the Act and she should be permitted to continue performing the projectionist function. The supervision issue in my view, is irrelevant and immaterial to the matter at hand.

7. If in fact the Kings College Square Cinema is shut down as a result of the majority decision it will create serious employment problems for the majority of the employees at this location who are not represented by I.A.T.S.E. or for that matter any other trade union.

8. Those employees performing the jobs referred to in paragraph 5 of the majority decision will be faced with a loss of employment due to the strike action of a single employee at this location - surely this is wrong, and something the Board can properly take into account when interpreting section 72.1. Are the rights of independent or unrepresented employees to earn a living to be abrogated regardless of fairness and cost? Is such a disproportionate impact beyond the discretion of the Board to rectify? In my view, at the very best, the section must be strictly construed against this unjust result. If it is not the intent of the legislation to put out of work a majority of the employees who are not participating in the work stoppage, and I believe this to be the case - then the Board should exercise its discretion to overcome this unjust result.