[1994] OLRB Rep. January 25
3061-93-R; 3111-93-R International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Applicant v. Cineplex Odeon Corporation, Responding Party; International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Applicant v. Cineplex Odeon Corporation c.o.b. Scarborough Town Centre Cinemas, Responding Party
BEFORE: Pamela Chapman, Vice-Chair, and Board Members R. M. Sloan and C. McDonald.
APPEARANCES: B. Fishbein, R. Davis and Pat Travers for the applicant; David Corbett for the responding party.
DECISION OF THE BOARD; January 17, 1994
- These are two applications for certification. The only issue in dispute between the parties in each of the applications is the description of the bargaining unit. In the first application, the applicant seeks to represent employees in the following bargaining unit:
all employees of Cineplex Odeon Corporation in the City of Brampton, save and except assistant managers and persons above the rank of assistant manager, and those persons for whom a trade union held bargaining rights on December 1,1993.
In the second application, the following bargaining unit is sought by the applicant:
all employees of Cineplex Odeon Corporation at the Scarborough Town Centre Cinemas in the Municipality of Metropolitan Toronto, save and except assistant managers and persons above the rank of assistant manager, and those persons for whom a trade union held bargaining rights on December 6,1993.
- The responding party proposes the following bargaining unit description, which would cover both applications:
all employees of the responding party in the Greater Toronto area and for greater particularity those theaters listed below, save and except assistant manager and persons above the rank of assistant manager, office, clerical and sales staff and those covered by a subsisting collective agreement between IATSE Local 173 and the responding party:
Canada Square Oakville Mew Carlton Promenade Centennial, Brampton Scarborough Town Centre Champlain Centre Sherway Eaton's Centre Cataraqui, Kingston Erin Mill's Town Centre South Common Mall Fairview Varsity Finch Warden Woods Hillcrest Woodbine Humber Woodside Square Hyland, Toronto York Market Square 401 & 7 Centre
Madison Centre
In the alternative, the responding party accepts the bargaining unit requested by the applicant in the first application but seeks a bargaining unit in the second application which includes all the theatres operated by Cineplex Odeon Corporation in the Regional Municipality of Metropolitan Toronto.
It is undisputed that the bargaining unit description proposed by the applicant in the first application ("the Brampton application") would include all of the employees below the rank of assistant manager at two theatres operated by the responding party in the city of Brampton, except for the projectionist(s) at each theatre who are represented by an affiliate of the applicant, IATSE Local 173 ("Local 173"). These employees work, for the most part, as ushers, cashiers and concession attendants, and are described by both parties as the "front-of-house" staff, which we are told is a term derived from live theatre settings. There are 23 employees in the applicant's proposed unit.
Similarly, the unit proposed by the applicant in the second application ("the Scarborough Town Centre application") is a front-of-house unit excluding the projectionist(s), who are also represented by Local 173, but at a single theatre operated by the responding party at the Scarborough Town Centre. There are 27 employees in this proposed unit.
The parties agree that the bargaining unit description proposed by the responding party essentially mirrors, in a geographical sense, the scope clause in the collective agreement between Local 173 and the responding party which covers the terms and conditions of employment of projectionists employed at the theatres listed, including the theatres in Brampton and at the Scarborough Town Centre. There are 550 employees in the unit proposed by the responding party.
The parties also stipulated to certain additional facts relating to Local 173 and to the pattern of union representation in theatres operated by the responding party and in the industry generally. They agree that:
(a) Local 173 is an affiliate local of the applicant;
(b) other affiliates of the applicant have collective agreements with the responding party which cover only projectionists and not front-of house staff. The scope clauses of these agreements cover all of the theatres operated by the responding party within the geographical jurisdiction of that affiliate;
(c) no affiliate of the applicant or the applicant itself has a collective agreement anywhere in Canada covering front-of-house personnel in a movie theatre;
(d) Local B173 is the front-of-house local chartered by the applicant in Ontario. It presently has collective agreements covering employees at several live theatres;
(e) the applicant has commenced an organizing drive for front-of-house personnel in movie theatres in all of Ontario of which these are the first applications;
(f) the applicant is an international trade union representing employees in the entertainment industry which organizes itself on quasi-craft lines; and,
(g) the responding party is a movie chain which operates across North America with its head office located at Toronto.
The other facts relating to these applications are also undisputed. The work performed by the front-of-house staff at each of the theatres in the respondent's proposed unit is virtually identical, as are the general terms and conditions of employment. Each of the theatres has a manager, and in most cases an assistant manager, on site; they are responsible for hiring, firing, discipline and other personnel matters at each theatre. Ultimate control, however, rests in the hands of a district manager, and the same district manager directs all of the theatres in the respondent's proposed unit except for the Kingston location. There is some interchange of employees between theatres, particularly in the Toronto region, in the sense that employees at one location may be offered, and may accept on a strictly voluntary basis, additional shifts at another busier location.
Both parties made reference to an earlier decision of the Board dealing with the certification of front-of-house staff in a movie theatre, which dealt specifically with the question of whether a single theatre in a theatre chain is an appropriate bargaining unit. In Famous Players Inc., [1990] OLRB Rep. May 509, the Board reviewed recent jurisprudence concerning single branch bargaining units, and then reached the following conclusions:
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.
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.
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.
Noting that the facts in this case are virtually identical to those canvassed in the Famous Players Inc., supra, case, the applicant asks that we reach the same conclusion here with respect to the Scarborough Town Centre application, and that with respect to the Brampton application we find a traditional municipality unit to be appropriate. In addition to Famous Players Inc. counsel for the applicant relies upon Carecor Security Service Inc., [1991] OLRB Rep. Aug. 962, and Toyota Canada Inc., [1991] OLRB Rep. July 922.
The responding party, on the other hand, seeks to distinguish this case from Famous Players Inc., and also argues that the jurisprudence relied upon by the Board in that case has been altered significantly by the subsequent release of MDS Health Group Limited, [1993] OLRB Rep. September 849. Counsel acknowledges that the facts set out in Famous Players Inc. do not differ substantially from the facts in the present application, but relies on two differences he claims are significant: the fact that the applicant is a union with experience organizing employees in this industry, unlike (we are asked to presume) the applicant in Famous Players Inc.; and the history of bargaining on a broader geographical basis, as detailed above, by affiliates of the applicant who represent other theatre employees, and in particular Local 173. These distinctions, he submits, demonstrate that there are no significant obstacles to organizing front-of-house employees of the responding party on a broader geographical basis, and also establish that the unit proposed by the responding party is presumptively appropriate.
Furthermore, counsel for the responding party asks us to interpret the MDS Health Group Limited, supra, case as requiring an applicant who seeks a single location unit despite the existence of other locations within the same municipality to call evidence to establish the existence of significant impediments to organizing on a broader basis. As no such evidence was called by the applicant in the present case, he submits that we must find the larger unit to be appropriate in order to prevent fragmentation. He also relies upon Mobil Chemical Canada, Ltd., [1987] OLRB Rep. Apr. 559, Kidd Creek Mines, [1986] OLRB Rep. June 736, and Hornco Plastics Inc., [1993] OLRB Rep. May 411.
There are important distinctions between the facts in the present case and those reviewed in the MDS Health Group Limited decision, in addition to the most obvious one that a different industry is involved. The employer's operations in that case were much more integrated than those of the responding party here in terms of reporting relationships, interchange and interrelationship of employees and of work, and even the physical locations of the various sites. While the number of employees at the specific location sought to be certified in that application was comparable to the sizes of the units proposed here~ many of the other locations operated by MDS were much smaller, including nine single-person locations. And perhaps most importantly, the circumstances in the MDS Health Group Limited application were virtually identical to those reviewed in an earlier decision of the Board, Cybermedix Limited [1979] OLRB Rep. Aug. 743, where a municipal-wide bargaining unit was proposed by the applicant but challenged by the employer. Given these circumstances, and the absence of anything in the particular facts or evidence to establish any unusual obstacles to organizing on a broader basis, the Board in MDS Health Group Limited declined to depart from the finding in Cybermedix Limited that a municipal-wide unit was appropriate.
In the present case, having carefully reviewed the submissions of the parties and the jurisprudence of the Board they rely upon, we are not convinced that the distinctions highlighted by the responding party between these applications and the one in Famous Players Inc. warrant a departure from the conclusion reached in that case that a single-theatre unit is viable and thus appropriate for collective bargaining. Neither the applicant's experience representing other employees in this industry, nor the scope clause negotiated by Local 173 are determinative of the question of whether or not the unit proposed by the responding party would create obstacles to organizing. While affiliates of the applicant have been able to organize projectionists into a quasi-craft unit encompassing theatres in a fairly broad geographical region, front-of-house staff have not been successfully organized in the past, and never by this applicant. The unit proposed by the responding party covers a large distance and a large number of employees working at quite autonomous locations. In this situation, the obstacles to organizing are self-evident.
At the same time, the responding party has not identified any serious labour relations problems which would result from finding the units sought by the applicant to be appropriate for collective bargaining. As this Board has said in numerous cases since Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, the central question in determining whether or not the bargaining unit sought by an applicant is appropriate is whether or not it encompasses a grouping of employees viable for the purposes of collective bargaining without causing serious labour relations problems for the employer; if it is, it will generally be granted regardless of whether or not it is the most appropriate, or the most comprehensive. Indeed, this is stated clearly in the MDS Health Group Limited case relied upon by the responding party, at paragraph 41. For the same reasons set out in the Famous Players Inc. case, we are satisfied that the single theatre unit proposed by the applicant in the Scarborough Town Centre application is viable and thus appropriate for collective bargaining. There were no serious objections by the responding party to the municipal unit sought by the applicant in the Brampton application, and we similarly find this unit to be appropriate.
With respect to the application for certification in Board file 3061-93-R, the Board finds that all employees of Cineplex Odeon Corporation in the City of Brampton, save and except assistant managers and persons above the rank of assistant manager, and those persons for whom a trade union held bargaining rights on December 1, 1993 constitute a unit of employees of the responding party 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 responding party in the bargaining unit described in paragraph 15, on December 1, 1993, the certification application date, had applied to become members of the applicant on or before that date.
With respect to the application for certification in Board file 3111-93-R, the Board finds that all employees of Cineplex Odeon Corporation at the Scarborough Town Centre Cinemas in the Municipality of Metropolitan Toronto, save and except assistant managers and persons above the rank of assistant manager, and those persons for whom a trade union held bargaining rights on December 6,1993 constitute a unit of employees of the responding party 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 responding party in the bargaining unit described in paragraph 17, on December 6, 1993, the certification application date, had applied to become members of the applicant on or before that date.
Certificates will issue to the applicant with respect to both bargaining units.