[1994] OLRB Rep. July 824

4534-93-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

BEFORE: Judith McCormack, Chair, and Board Members W. H. Wightman and P. V. Grasso.

APPEARANCES: Bernard Fishbein, J. Watterhouse and A. Olsen for the applicant; David N. Corbett for the responding party.

DECISION OF JUDITH McCORMACK, CHAIR, AND BOARD MEMBER P. V. GRASSO; July 22, 1994

1. This case involves an application under section 7 of the Labour Relations Act in which the applicant union seeks to combine seven bargaining units in theatres in Ontario. The responding party is a movie chain corporation which operates across North America.

2. The parties were in agreement with respect to the facts in this matter. For the most part, the employees for whom consolidation is sought work as ushers, cashiers and concession attendants, and are described by the parties as the "front-of-house" staff. The seven bargaining units, which range in size from eight to thirty employees, constitute all the units of this nature that the applicant has organized to date. Each involve one location, except for the Brampton unit which includes two. The other units are located in Scarborough, Mississauga, Guelph, Sudbury and Toronto. The work performed in the theatres is virtually identical. This is true as well for the terms and conditions of employment. Each theatre has a manager, and in most cases an assistant manager, and their responsibilities include hiring, firing, discipline and other personnel matters. In addition, there are district managers who wield the ultimate control in these matters. There is some interchange of employees between some of the units. The units were all organized over a period in January and February of this year. None of them are covered by a collective agreement. If the units were combined, the total number of employees in the combined unit would be approximately 110 to 120.

3. Section 7 provides as follows:

7.-(l) On application by the employer or trade union, the Board may combine two or more bargaining units consisting of employees of an employer into a single bargaining unit if the employees in each of the bargaining units are represented by the same trade union.

(2) On an application under subsection (1) that is considered together with an application for certification, the Board may do the following:

1. Combine the bargaining unit to which the certification application relates with one or more existing bargaining units if the certification application is made by the trade union that represents the employees in those existing bargaining units.

2. Combine the bargaining unit to which the certification application relates with other proposed bargaining units if the certification application is made by the trade union applying for certification for the other proposed bargaining units.

3. Combine the bargaining unit to which the certification application relates with both existing and proposed bargaining units if the certification application is made by the trade union that represents the employees in those existing bargaining units and that has applied for certification for the other proposed bargaining units.

(3) The Board may take into account such factors as it considers appropriate and shall consider the extent to which combining the bargaining units,

(a) would facilitate viable and stable collective bargaining;

(b) would reduce fragmentation of bargaining units; or

(c) would cause serious labour relations problems.

(4) In the case of manufacturing operations, the Board shall not combine bargaining units of employees at two or more geographically separate places of operations if the Board considers that a combined bargaining unit is inappropriate because the employer has established that combining the units will interfere unduly with,

(a) the employer's ability to continue significantly different methods of operation or production at each of those places; or

(b) the employer's ability to continue to operate those places as viable and independent businesses.

(5) In combining bargaining units, the Board may amend any certificate or any provision of a collective agreement and may make such other orders as it considers appropriate in the circumstances.

(6) This section does not apply with respect to bargaining units in the construction industry.

(emphasis added)

4. Since this case does not involve either a manufacturing operation or the construction industry, we find it helpful to set out some of the Board's comments with respect to its approach to section 7(3) in Mississauga Hydro-Electric Commission, [1993] OLRB Rep. June 523. In the following passages, the Board reviewed some of its earlier jurisprudence with respect to the importance of minimizing fragmentation in facilitating visible and stable collective bargaining:

5. The task of facilitating viable and stable collective bargaining in connection with bargaining units is familiar territory for the Board, which has explored this theme extensively in the context of determining appropriate bargaining units at the point of certification. This is true as well for the proposition of reducing fragmentation, since the Board has sought to avoid undue fragmentation in shaping units. Much of the Board's jurisprudence reflects a relatively sophisticated approach to these issues, which has evolved over a number of years of considerable experience. Accordingly, we find it useful to review some of that jurisprudence under section 6 in considering these criteria in the context of combining bargaining units as well.

6. We observe firstly that viability, stability and fragmentation have been interwoven in the Board's determination of bargaining units. A review of the cases indicates that the Board has considered more comprehensive bargaining units and minimizing fragmentation to be key elements in facilitating viable and stable collective bargaining. For example, in The Board of Education for the City of Toronto, [1970 OLRB Rep. July 430, the Board expressed the view that fragmentation may make it impossible to have a viable and meaningful collective bargaining relationship:

7. The fact-finding process is at all times directed toward and governed by the concept of appropriateness and the essence of appropriateness in the context of labour relations is that the unit of employees be able to carry on a viable and meaningful collective bargaining relationship with their employer. It is the Board's experience that employees may in some cases subdivide themselves into small groups which may result in an unnecessary fragmentation or atomization of the employees. Thus an employer faced with the possibility of lengthy, protracted and expensive bargaining and the further possibility of jurisdictional disputes among multiple bargaining groups represented by one or more trade unions may find it impossible to carry on a viable and meaningful collective bargaining relationship. The Board therefore is adverse to certifying employee groups where the result is undue fragmentation and in those circumstances the Board will find the unit proposed inappropriate on the basis that a meaningful and viable collective bargaining relationship will not result. See e.g. Waterloo County Health Unit, [1969] January OLRB Mthly. Rep. 1016.

8. The British Columbia Labour Relations Board set out the same kind of factors favouring broader bargaining units in the Insurance Company of British Columbia, [1974] 1 Can LRBR 403 (adopted by this Board in National Trust, [1986] OLRB Rep. Feb. 250) where it said at p. 259 as follows:

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 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.

9. In Board of Governors of Ryerson Polytechnical Institute, [1984] OLRB Rep. Feb. 371, the Board noted that in striving to create a viable structure for collective bargaining, a broadly based bargaining unit offers several advantages over a fragmented structure, and went on to elaborate on the undesirable effects of fragmentation, including the increased risk of work stoppages:

10. Organizational concerns are not the only forces that shape bargaining units. The Board must also strive to create a viable structure for ongoing collective bargaining. See Usarco Limited, [1967] OLRB Rep. Sept. 526; K Mart Canada Limited, [1981] OLRB Rep. Sept. 1250; and Insurance Corporation of British Columbia, [1974] 1 CLRBR 403 (B.C.). From this perspective, a broadly based bargaining unit offers several advantages over a fragmented structure.

11. A proliferation of bargaining units increases the risk of unnecessary work stoppages. The likelihood of a strike occurring grows with the number of rounds of negotiations and may be further increased by competitive bargaining between two trade unions. The potential for mischief is greatest when the work performed in two or more units is integrated. In these circumstances, whenever one group strikes, other employees who are functionally dependent upon struck work are deprived of employment, though they may stand to gain nothing from the strike because their agreement has just been renewed. Even in the absence of functional integration, strikers may erect picket lines that keep other employees away from work, although a concerted refusal to cross a picket line, by employees who are not entitled to strike, is an illegal work stoppage.

12. There are other drawbacks to a multiplicity of bargaining units. Each unit is likely to become an enclave surrounded by legal barriers - designed to enhance sic] the job opportunities of employees within the wails - that impede the mobility of employees. Restrictions on mobility may entail significant costs for an employer whose practice is to frequently transfer employees between jobs that fall in different units. In some cases, these barriers may close natural lines of job progression to the detriment of all concerned. A fragmented bargaining structure also inevitably spawns jurisdictional contests over the allocation of work among units, disputes which in the long run benefit no one. And a proliferation of bargaining units entails the time and trouble of negotiating and administering several collective agreements. From the perspective of an employer with centralized control over labour relations, there is an unnecessary duplication of effort. All of these concerns - work stoppages, restricted employee mobility, jurisdictional disputes and administrative costs - favour consolidated bargaining structures, although the force of each vector varies from case to case.

(emphasis added)

10. Similarly, in Kidd Creek Mines Ltd., [1984] OLRB Rep. Mar. 481, the Board suggested that fragmentation could contribute to labour management problems, tension within and between bargaining units, and an escalation of industrial conflict, and described fragmentation as "a recipe for industrial unrest - if only because in an integrated enterprise it takes only one collective bargaining breakdown to start the whole system unraveling". And in Ponderosa Steak House, [1975] OLRB Rep. Jan. 7, the Board noted that fragmentation could result in a weak employee presence at the bargaining table.

11. In other words, it is well established in the Board's jurisprudence that facilitating viable and stable collective bargaining in the context of bargaining unit determinations is strongly connected to minimizing fragmentation.

12. With this in mind, we turn to the application of section 7(3) to the case before us. The company acknowledges that combining these units would minimize fragmentation. As the cases above reflect, the Board has found that minimizing fragmentation is a key element in facilitating viable and stable collective bargaining. There was no evidence which would suggest that the usual reasons for reducing fragmentation including administrative efficiency and convenience, lateral mobility, a common framework of employment conditions, and industrial stability would not apply to this case. Indeed, the similarity in the functions performed by employees and their working conditions imply the contrary.

13. The company opposes the application on the basis that the union had an obligation to advise both the company and employees at the time it filed the certification applications that it would subsequently be requesting a combination order. Although counsel acknowledges that nothing in section 7 precludes the union from applying for such an order at this point, in two of the certification cases the bargaining units were disputed. In counsel's view, the fact that the union requested smaller bargaining units in those cases for organizing purposes should lead the Board to exercise its discretion to refuse to combine the units now. Although he agrees that this is not a matter of res judicata or issue estoppel, he takes the position that the appropriate time for the union to have asked for combination orders was as each unit was certified. However, he acknowledges that the Act is designed to facilitate organizing, and that a combination order would reduce fragmentation. He also conceded that all of the Board's jurisprudence was against his position.

14. There is no dispute that the union is legally entitled to apply for combination at this point. Rather the company's arguments appear to suggest that we should apply an estoppel-like concept in the absence of the usual requirements of that doctrine. As noted earlier, it is not asserted that the union misled the company or employees by advising them that it would not be requesting combination at any subsequent point, or that it is resiling from some agreement. No prejudice or detriment to the employer was cited, except for the fact that the union was certified in the earlier proceedings. In essence, the company's position is really that there is a sort of vague inequity to this sequence of events which should outweigh the criteria in section 7(3) and the Board's jurisprudence.

15. There are several problems with this argument. If it is based on the union taking a different position in these proceedings than in two of the earlier certification cases, the same argument would apply to the company, which argued for larger bargaining units previously and is now opposing one. More importantly, however, it ignores the fact that certification and combination are quite distinct types of actions and that the tests the Board applies, while overlapping, are indeed different. As the Board noted in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, the issue in certification cases is whether the unit which the union seeks to represent encompasses 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. While some elements of the Board's jurisprudence in the context of this test are echoed in the criteria set out in section 7 and the Board's cases under it, there are factors which are

not.

9. As the Board has observed previously, when it fashions bargaining units in certification cases, its approach to fragmentation is mitigated by an opposing concern to facilitate access to bargaining. In Loeb Highland, [1993] OLRB Rep. Mar. 197, the Board considered some of its prior jurisprudence in this regard:

In certification cases, however, this is tempered by an opposing concern that bargaining units not be described so broadly that they impede access to collective bargaining. In Ryerson, supra, the Board noted that assisting employees to join together for collective bargaining was a fundamental objective of the Labour Relations Act, and that as a result, the Board has been reluctant to establish units that are so broadly based that they defy organization:

14. A trade union may experience insurmountable difficulties in trying to organize employees in a unit that is broadly defined to embrace employees who are geographically dispersed or perform substantially different jobs. As one of the fundamental objectives of the Labour Relations Act is to assist employees to join together for collective bargaining, this Board has been reluctant to establish units which are so broadly based that they defy organization. See Ponderosa Steak House, [1975] OLRB Rep. Jan. 7. The public polity of facilitating organization is a two-edged sword. A trade union may propose a unit defined so as to leave unrepresented a group so small that they have no real chance of entering the world of collective bargaining alone. In these circumstances, the Board expands the proposed unit to include the employees in question, even though the result may be to dilute support for the union to the point that the application is dismissed. See Board of Education for the City of North York, [1982] OLRB Rep. June 918 at paragraph 7.

15. The design of bargaining units becomes even more complex when the focus of attention is expanded to include not only ongoing collective bargaining but also organizational concerns. The optimal unit for long-term bargaining may be larger than the grouping within which a trade union can be reasonably expected to obtain the level of employee support necessary for certification in the short-run. In other words, there is an inherent stress lurking within the concept of an appropriate bargaining unit because it performs two very distinct functions. How has the Board responded to this industrial relations conundrum? The decision in K Mart Canada Limited, supra, at paragraphs 18 to 20, provides an apt illustration. The employer operated four stores in one municipality, the union had organized one at which 127 employees worked, and a certificate was granted for this unit. A broader-based structure was rejected, because it might significantly impede access to collective bargaining. However, the Board suggested it would have been "hard pressed" not to certify a municipal unit if the union had organized all four stores, suggesting a consolidated structure would lead to more effective collective bargaining than several smaller units. In other words, the viability of ongoing collective bargaining was compromised to this extent in order to foster self-determination. But the Board declared that self-determination would not always come out on top. One example used to make this point involved an employer operating fast food outlets at several locations in a municipality and employing at each a substantially smaller number of employees than worked at one K Mart store. The Board strongly hinted that an application for a bargaining unit comprised of one outlet would be rejected.

16. In the same vein, the Board said in Canada Trustco Mortgage Company, [1977] OLRB Rep. June 330:

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.

13. Indeed, in K Mart Canada Limited, [1981] OLRB Rep. Sept. 1250, the Board expressed the view that "[w]here, 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".

14. Similarly, in The Hudson's Bay Company, [1993] OLRB Rep. Oct. 1042, the Board reviewed its extensive jurisprudence in certification applications with respect to fostering self-determination and facilitating access to collective bargaining in determining bargaining units:

15. In other words, the Board may consider factors in fashioning bargaining units at the time of certification which may be less relevant in combination applications where employees are already organized. For example, in Ponderosa Steak House (A Division of Foodex Systems Limited), [1975] OLRB Rep. Jan. 7, the Board noted that in determining appropriateness the Board had developed two general themes of fundamental importance, the right of self-organization and the need for a viable collective bargaining relationship:

Two themes of fundamental importance appear to emerge from these sources, the right of self-organization and the need for a viable collective bargaining relationship.

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, s. 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. Given this legislative policy favouring the right of self-organization, the Board must be careful that its determination as to the appropriateness of the bargaining unit has given proper weight to the wishes of the employees. An earlier decision of the Board, The Board of Education for the City of Toronto, July OLRB Monthly Report 430, clearly endorses such an approach. In giving due consideration to the wishes of the employees, the Board, in the absence of contrary evidence must assume that their wishes are expressed by the applicant union as the representative of the employees. This point was made by the Board in Board of Health of the York-Oshawa District Health Unit, (1969) OLRB M.R. 340.

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. This responsibility was recognized by the Board in the McMaster University case, (1973), OLRB MR. 102, and in the Board of Education for the City of Toronto case, supra.

27. More specifically in Coca-Cola Ltd., [1989] OLRB Rep. Jan. 1, the Board referred to Bruce Peninsula & District Memorial Hospital, [19821 OLRB Rep. May 656 in setting out the reasons for the one location practice in certification which included, among other things, the right to self-organize, and providing a measure of predictability for organizing purposes. In the latter case, the Board included these quotes from Adams Furniture Co. Limited, [1975] OLRB Rep. June 491 in discussing the one location practice and awarding a multi-location bargaining unit:

28. This does not mean, however, that a regional bargaining unit will never be appropriate. Rather it simply means that such a unit must be consistent with two basic considerations - 1) the right of self-organization; 2) the requirement that collective bargaining relationships be viable.

29. In this case, the applicant has organized all but one of the stores falling within its proposed bargaining unit description, virtually eliminating any interference with the right of self-organization. This means that in this case considerations of viability assume greater importance.

30. Again in Tip Top Tailors, [1979] OLRB Rep. May 445, the Board also ties in its policy on bargaining unit certifications to the right of employees to obtain union representation, among other things:

31. Having reviewed all of the foregoing and in particular the evidence with respect to transfers, the Board finds that the extended area bargaining unit argued for by the respondent raises an insurmountable obstacle to the rights of any of the employees to obtain union representation. That right is the foundation and base upon which the whole structure of the Act is built. To require the employees of the respondent to organize the whole area which includes so many municipalities would be to defeat the paramount purpose of the Act.

32. Initially the Board determined that a municipality wide unit was appropriate for stores (The Goodyear Service Stores (1964), 65 CLLC ¶16,018). However, in Canada Trustco Mortgage Company, [1977] OLRB Rep. June 330, the Board found that either a one branch unit or a unit consisting of all branches in Southwestern Ontario shared a community of interest. In deciding to certify a one branch unit, the Board again referred to its concerns about access in the passage cited in Mississauga Hydro-Electric Commission, supra, and adopted the views of the British Columbia Labour Board to this effect:

33. 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 an 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."

30. In K Mart Canada Limited, [1981] OLRB Rep. Sept. 1250, the Board identified three statutory objectives which must be balanced in determining the appropriate unit in certification applications:

31. Although the Board must be sensitive to the impact of its bargaining unit determinations upon the ability of trade union to organize, there are other factors which must also be taken into account. The objectives of the statute relate not only to the promotion of collective bargaining as a means of determining terms and conditions of employment, but also to a recognition of the principle of individual freedom of choice, and to the creation and maintenance of sound and viable bargaining structures. In determining the appropriate bargaining unit the Board does not give effect to one of these aims to the exclusion of the others. Rather, the task which falls to the Board in the exercise of its discretion under section 6(1) of the Act requires a balancing of these statutory objectives in the circumstances of each case.

32. The Board also noted that the concern about fragmentation was weightier where the Board was unable to restructure bargaining units at a future date, as was the case at that time:

33. There are other important considerations which enter the picture as well where the employer operates from two or more locations within the same municipality. 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 or 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.

34. Many of the single branch determinations in this sector can be explained by the following passage in K Mart, supra:

35. 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. It follows that in doing so the Board takes into account the pattern of organization. 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.

36. The Board noted in K Mart that in the earlier cases of Goodyear, supra, and Cybermedix Limited, [1979] OLRB Rep Aug. 743, the union had organized all employees in the municipality and was requesting a municipality wide unit, as had the union in Fotomat Canada Limited, [1979] OLRB Rep April 306 and in Tip Top Tailors, [1979] OLRB Rep. May 445. In that sense, these cases were not inconsistent with K Mart decision, the Board said, the latter two because the Board gave favourable consideration to the pattern of union organizing, and took into account the adverse effect upon access to bargaining:

37. The Board has reviewed both Fotomat, supra, and Tip Top Tailors, supra, relied upon by the respondent. The primary issue in both cases is different than that raised in the instant case. In both cases the Board was asked to depart from its standard practice of circumscribing bargaining rights by reference to the municipal boundary and to certify on a broader basis. While the Board refused, and certified for all stores within single municipalities, in both cases, its reasons for doing so lend support to the position of the applicant in this case. In both these cases the Board gave favourable consideration to the pattern of union organizing, as the applicant asks us to do in this case. In both cases, as in the Goodyear and Cybermedix cases the union organized on a municipal-wide basis. Furthermore, in both cases the Board took into account, as the applicant asks us to take into account in this case, the adverse effect upon employee access to collective bargaining of unit descriptions extending beyond a single municipality. The Board commented in its Fotomat decision that any drawbacks associated with the possibility of the respondent having to deal with a multiplicity of bargaining units "are more than outweighed by the restrictive effect that a single bargaining unit would have on the right of the respondent's employees to decide whether or not they wish to be represented for collective bargaining purposes". Similarly in its Tip Top Tailors decision the Board found that "the extended bargaining area argued for by the respondent raises an insurmountable obstacle to the rights of any of the employees to obtain union representation."

38. In National Trust, [1986] OLRB Rep. Feb. 250, the Board reviewed the jurisprudence in the service sector at great length. Among other things, the Board was prepared to grant a multi-location bargaining unit even at the point of certification as an option available to an applicant, without signalling a rejection of single branch units:

39. 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).

(emphasis original)

This was adopted by the Board in both Harlequin Enterprises Limited, [1987] OLRB Rep. Feb. 226 and in Famous Players, [1990] OLRB Rep. May 509, and the case is cited in other respects in VS Services Ltd., [1987] OLRB Rep. June 931 and The Board of Education for the City of Scarborough, [1987] OLRB Rep. Jan. 119. The Board went on to quote from Canada Trustco, Woodward Stores, Insurance Corporation and K Mart, supra, in this regard, and noted the British Columbia Labour Board's practice of certifying single branch store units and combining them subsequently. However, the Board also observed that neither the practice of this Board to certify single store or branch units or the B.C. Board's practice in this regard vitiated the overall principle that "bigger is better" in terms of issues such as fragmentation. Rather, they reflected the Board's concerns about access to collective bargaining.

35. National Trust, supra, was quoted at length in Famous Players where the Board found a single theatre to be an appropriate unit. Again, the Board's decision is based in part on the obstacles to organizing a municipal-wide unit would create:

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 summary then, in certification applications the Board has considered a number of factors relating to facilitating organization and fostering self-determination which may not be relevant to combination applications, or which may have different implications in this context. As a result, these cases do not suggest to us that the units before us should not be combined.

11. As a result, the Board's approach to combining bargaining units involves both a degree of commonality with the factors it considers in certifications and some significant differences. In Mississauga Hydro, supra, for example, the Board noted that access to bargaining may not be an issue in a combination application, either at all or in the same form. When the Board's predilection for minimizing fragmentation is freed from concerns about self-determination and access to bargaining, the effect in the context of a combination application may be a stronger preference for larger units than in certification applications:

At the same time, it is also evident that the Board's approach to combining bargaining units must be somewhat different than the method the Board uses to structure those units at the point of certification. Although the criteria in section 7(3) echo some of the themes addressed by the Board under section 6, there are some notable absences. Section 7(3) does not employ the language of appropriateness set out in section 6, and there are obvious differences in the kinds of factors relevant even to viability. For example, the Board may not have the same concern that larger bargaining units might impede the right of employees to organize themselves in a combination application, when access to collective bargaining is not an issue. This brings the problems associated with fragmentation and its impact on viable and stable collective bargaining into sharper focus. Indeed, in the absence of this concern, the Board's views on the undesirable impact of fragmentation may suggest a more marked preference for larger units. Likewise, the Board's approach to displacement applications for certification is shaped to some extent by specific considerations with respect to gerrymandering, which may take a different form in the context of combination applications.

12. This difference in approach is also reflected in the certification decisions for two of the seven bargaining units before us. Both rely on Famous Players, supra, where the Board considered obstacles to organizing as one of the factors in arriving at a determination of a single branch unit. There may well be combination cases in which access to bargaining or fostering self-determination is an issue, although it may arise in a different manner or have varying implications than in the context of a certification application. In this case, however, it is not a factor. The result is that the Board has the relative luxury of applying the criteria under section 7 in a manner which reflects the accumulated wisdom of its jurisprudence with respect to minimizing fragmentation and facilitating viable and stable collective bargaining, undiluted by some of the concerns that may arise at the point of certification.

13. In light of the criteria in section 7(3), the Board's different jurisprudence in these areas and the fact that access is not an issue before us in this combination application, the company's argument amounts to the proposition that a party should not be permitted to take a different position on a different issue in a different type of case because some of the factors the Board considers are similar.

14. What lies behind this argument, we think, is that the company feels aggrieved because the union has been able to draw on support from the Board's respective areas of jurisprudence in both the certification and combination proceedings. As the Board observed in Mississauga Hydro, supra, however, it is well aware that the parties' positions in both certification and combination cases are often shaped to a significant degree by strategic considerations. In the absence of facts which suggest that the integrity of the Board's processes are threatened, or which amount to estoppel or res judicata, the Board is generally reluctant to get caught up in the parties' litigation manoeuvres or to allow them to influence the substance of its decisions. It is also far from clear that the company would be in a better position if the union had brought combination applications with each certification, as the company asserts would have been preferable.

15. Alternatively, counsel asks that the Guelph and Sudbury locations remain separate units on the basis that this would be similar in some respects to the projectionists' units represented by locals of the same international union which seeks the order in this case. In that regard, counsel disagrees with the premise that "bigger is better" in connection with bargaining units. He asserts that there would be more Toronto employees in a combined bargaining unit than those from Sudbury, for example, and that they might vote for a strike where employees from Sudbury would not. If the Sudbury theatre is less financially viable than those in Toronto, counsel argues, the effect might be problematic. While he acknowledges that the Board's cases do not support the proposition that geographically separate units should not be combined, he is still of the view that Guelph and Sudbury should be kept separate.

16. It must be acknowledged, however, that this is a very speculative concern, assuming as it does financial data which was not in evidence, a failure to reach a collective agreement, a vote in which regional differences were both relevant and ignored, a union insensitive to these interests, and a number of other contingencies which we have no particular reason to presume. We note that section 7 refers to serious labour relations problems, and not simply labour relations problems. The mere possibility of difficulties of such a conjectural nature does not appear to fit the criteria in section 7. Moreover, although counsel pointed to the projectionists' units as the inspiration for such a configuration, it is apparent that this would not perfectly mirror the projectionists' units in any event. And to the extent that those units represent some historical anomalies with a craft flavour, this pattern does not recommend itself to us in a fresh area of collective bargaining. We also accept that in labour relations matters such as this, the duly certified bargaining agent speaks for employees, either exclusively or at the very least with considerable authority.

17. Having regard to the criteria set out in section 7 and the Board's jurisprudence, we conclude that combining these units would reduce fragmentation and facilitate viable and stable collective bargaining without causing serious labour relations problems. As a result, we direct that the even bargaining units before us be combined. We remain seized with regard to any further remedial relief.

OPINION OF BOARD MEMBER W. H. WIGHTMAN; July 22, 1994

1. There can be no doubt that under existing law the Board has the discretionary power to direct that the seven bargaining units be combined.

2. Indeed it would seem the Board would be hard put to deny any bargaining unit configuration requested by any union, whether in the context of a certification application or a subsequent application under section 7, to combine units.

3. The reservations I have as to the advisability of doing so stem on the one hand from a concern as to the extent to which the decision reflects the wishes and serves the interests of individual employees, and on the other the implications of the decision for coherency in Canadian systems of collective bargaining. The latter point I deal with first it being more philosophical in nature.

4. The most apparent distinction between collective bargaining systems in western Europe and those to be found throughout Canada is reflected in the manner in which negotiations are conducted. European models have evolved what some describe as "top down" bargaining, an expression coined by North Americans to distinguish those models from our systems wherein negotiations are more typically at a local level in virtually all private sector industries other than construction.

5. This is not to argue that one model is to be preferred over the other but it is at least arguable that our "bottom up" approach to collective bargaining is to some degree predicated on a notion that the closer decisions are made to and even by the people who will be directly affected, the more sensitive the decisions will be to local conditions and needs.

6. The strategic benefit to the union is apparent in the majority decision to combine all seven units. Any benefit to the individual employees is much less evident. I suppose that as members of a single bargaining unit it might be possible for ushers to move about between Sudbury and Toronto by virtue of seniority rights in the event of a lay-off. Such a benefit strikes me as less likely, and less appealing, than for employees at Sudbury and Guelph to be able to negotiate provisions which would address their own needs and interests.

7. As a Board we have no knowledge as to the preferences of the individual employees. Absent that knowledge I would have opted for a structure which allowed for the possibility of more local decision-making and left the Guelph and Sudbury locations as separate units.