Ontario Labour Relations Board
[1994] OLRB Rep. November 1527
0158-94-R International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Applicant v. Famous Players Inc., Responding Party
BEFORE: Pamela Chapman, Vice-Chair, and Board Members R. W. Pirrie and P. V. Grasso.
DECISION OF PAMELA CHAPMAN, VICE-CHAIR, AND BOARD MEMBER P. V. GRASSO; November 23, 1994
This is an application for a combination of bargaining units pursuant to section 7 of the Labour Relations Act.
By certificates dated February 10, 1994, the applicant ("the union") was certified to represent employees in the following bargaining units:
all employees at the Eglinton Theatre in the City of Toronto, save and except the Relief Manager and persons above the rank of Relief Manager and;
all employees at the Gloucester 5 Cinemas in the City of Ottawa, save and except Relief Managers and persons above the rank of Relief Manager.
By letter dated February 16, 1994, the union gave notice to bargain to the responding party ("the employer") and suggested that negotiations encompass both units with a view to concluding a single collective agreement.
By letter dated February 21, 1994, the employer responded that it intended to bargain for each of the units separately.
On April 14, 1994, the union brought the instant application seeking a combination of the two bargaining units, which is opposed by the employer.
The facts respecting the two units and the operations of the employer are not in dispute. Famous Players Inc. operates movie theatres across Canada, including those where the two bargaining units have been certified. Each of the units of employees is made up of what is called "front-of-house" staff: ushers, ticket takers and concession sales staff, including both full and part-time employees. The employees at the two theatres perform essentially the same duties under essentially the same terms and conditions of employment. Each theatre has a manager.
The Eglinton Theatre is a single screen theatre, employing approximately 10 employees in the bargaining unit. The Gloucester 5 Cinemas in Ottawa, on the other hand, is a five screen theatre complex employing 27 persons in the bargaining unit. These different configurations result in certain variations in the hours of work at the two theatres, arising from the fact that the nature of the single movie showing at the Eglinton location will influence the times during which the theatre is open. Thus, a family film will result in daytime and early evening hours in contrast to a more adult film, which may only require two evening showings. At the Gloucester cinema complex, the hours are fairly fixed due to the range of films being shown: in the summer, the theatre operates all day long, while for the remainder of the year, excepting the Christmas season, it is open only in the evening.
There is marginally more movement by employees among the different jobs at the Gloucester theatre, where employees may perform concession, usher and ticket taker functions within a matter of days. There is less movement among the employees at the Eglinton theatre.
While employees from one theatre may work shifts at other theatres in the same geographic area where required, such interchange does not occur between the units which are the subject of this application, given the distance between them.
The employer is divided for administrative purposes into several regions, each the responsibility of a Director or Executive Director. The Gloucester S cinemas fall into the Eastern Region, under the direction of an Executive Director based in the regional office in Montreal. This region includes theatres in Ontario east of Kingston, in Quebec and in the Maritimes.
The Eglinton Theatre falls into the Ontario Region, which includes Kingston and theatres west of that city, including Sudbury and Timmins, but not Thunder Bay. Thunder Bay falls into the Western Region.
The Executive Director or Director of each region has overall responsibility for all facets of the operations of the theatres in his or her region, including employment relations. The theatre managers, however, are directly responsible for the management of employees, including hiring and firing.
Because of this regional structure, the employer struck two separate bargaining committees to bargain collective agreements for the two units. The committee for the Gloucester theatre is made up of the Executive Director for the Eastern Region, the Ottawa District Manager, the theatre manager, and the Executive Director for Industrial Relations. The Eglinton committee comprises the Director of the Ontario Region, the employer's General Counsel, and the Executive Director for Industrial Relations. The individual holding the latter position, who sits on both committees, has overall responsibility for labour relations for the employer, and is based at the head office of the employer in Toronto.
Finally, it was agreed that locals of the applicant union are certified to represent projectionists in the employ of the employer, who are the only other employees of the company represented by a trade union. These bargaining units are generally organized as separate units for each municipality, but they are also considered to have quasi-craft status, and there are certain historical anomalies, such as the inclusion of projectionists in Kingston and Belleville in the Toronto local as a result of a merger between the locals and an unopposed successorship application to the Board. The projectionist units are each represented by a separate local union, while the international union is the bargaining agent for each of the units in the present case.
Section 7 of the Act provides as follows:
7.-(1) 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:
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.
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.
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.
The Board has had occasion recently to consider appropriate bargaining unit configuration for front-of-house staff, resulting in at least two reported decisions in applications for certification in this industry (Cineplex Odeon Corporation, [1994] OLRB Rep. Jan. 25; Cineplex Odeon Corporation, [1994] OLRB Rep. Jan. 30). These decisions reflect the Board's conclusion that both single theatre and municipal units are appropriate for collective bargaining purposes.
In an even more recent decision, however, the Board considered an application by the same union for a combination of five single-theatre units and one municipal unit comprising two theatres into a single unit, including theatres in Brampton, Mississauga, Toronto, Scarborough, Guelph and Sudbury. In Cineplex Odeon Corporation, [1994] OLRB Rep. July 824, after an extensive review of the jurisprudence of the Board in combination cases, the Board stated as follows:
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 seven bargaining units before us be combined. We remain seized with regard to any further remedial relief.
The union in this case relies upon the Board's decision in Cineplex Odeon Corporation, supra, and also upon other decisions in combination applications including The Hudson's Bay Company, [1993] OLRB Rep. Oct. 1042, and Mississauga Hydro-Electric Commission, [1993] OLRB Rep. June 523. Counsel for the union points out that the facts in this case are virtually indistinguishable from those in Cineplex Odeon, and that as such we should take guidance from the Board's conclusions in that case. Indeed, this matter was adjourned for several months upon agreement of the parties, while the decision in Cineplex Odeon was pending.
Counsel for the employer, on the other hand, submits that the present application is clearly distinguishable from the Cineplex Odeon decision, and also from the Hudson's Bay case. This assertion is based upon that fact that in each of these cases the employer conceded one of the key factors in section 7, the fact that combination would reduce fragmentation. Indeed, it would appear from a review of each of those decisions that fragmentation was admitted and that no serious argument was made that combination would not reduce fragmentation. Rather, argument focused on whether combination would enhance viable and stable collective bargaining, which was to a large extent conceded as following automatically from a reduction of fragmentation, and more importantly, on whether or not combination would result in serious labour relations problems.
In the present case, the employer took the position that no fragmentation exists with the present bargaining structure, and that fragmentation would thus not be reduced by combination. In addition, and as a result, the employer submitted that combination would not enhance viable and stable collective bargaining, but would to the contrary impede bargaining and cause serious labour relations problems.
The employer's argument around fragmentation had two components. First, counsel for the employer submitted that the notion of fragmentation contemplated the splitting apart or "fragmenting" of some larger complete whole. That seems self evident, but counsel appeared to be taking it one step further, suggesting that the corollary of this proposition is that fragmentation is not reduced unless the larger whole is restored. In this case, he suggested, there is no larger appropriate whole which could be made up of these two units, geographically and organizationally disparate as they are. The case would be quite different, he submitted, if the union was seeking to combine all of the branches of the employer within a municipality, or an otherwise appropriate "whole".
In advancing this submission, counsel for the employer appeared to be importing the notion of appropriateness as it has been considered in certification cases into the adjudication of an application for combination. There is no doubt some overlap in the factors to be considered in certification and combination cases, as has been noted in previous decisions of the Board. All of the factors set out in section 7, fragmentation, viable and stable collective bargaining, and serious labour relations, have featured in the Board's deliberations on appropriateness in certification applications. At the same time, however, the Board has noted that "certification and combination applications are quite distinct types of actions and that the tests the Board applies, while overlapping, are indeed different" (Cineplex Odeon Corporation, supra, at paragraph 8). It cannot be ignored that the legislature did not include, when listing the factors which must be considered in determining whether or not combination should be ordered, the question of whether or not the proposed new unit was "appropriate".
It is also important to note that the Act refers to the "reduction" of fragmentation, rather than its "elimination". Thus, if, by way of example, we define a completely unfragmented whole as the entire operations of the employer, there remains the possibility of combining some fragments of that whole, thus reducing fragmentation, without combining all of the fragments and eliminating it entirely. This is likely to occur in situations where the entire operation has not been organized, and will inevitably occur, given subsection (1) of section 7, where different fragments are represented by different trade unions. In our view, this is exactly what is presented by the application before us, and we are satisfied that we can still speak of reducing fragmentation despite the fact that the combined unit proposed does not encompass an obviously coherent "whole", but rather appears to be a larger "fragment".
Despite the assertion of counsel for the employer that such a finding would be a radical departure from the Board's established approach to bargaining unit configuration, we find support for this proposition in a much earlier decision of the Board on a certification application, National Trust, [1986] OLRB Rep. Feb. 250. In that case, the Board certified a unit consisting of 7 out of 37 branches of National Trust across Metropolitan Toronto. Six of these branches fell into the employer's eastern region, and one in the western region. Each branch had a manager with the power to hire and fire, although regional and head office management retained the right to approve a wide range of labour relations decisions. Employees at the various branches had common terms and conditions of employment, and performed similar duties in the same classifications requiring the same skills and training.
In responding to the applicant's proposed bargaining unit, the employer took the position that the Board should either certify single branches or all of the branches in Metropolitan Toronto. As set out at paragraph 10 of the decision, the employer's concerns included the fact that the branches cut across regional administrative divisions, the geographical disparity of the branches, and in general, the efficacy of the Board grouping branches into a bargaining unit on the basis of where the applicant had succeeded in organizing, which in this case would produce, in the view of the employer, a "random and irrational" configuration.
In deciding National Trust, the Board reviewed this Board's jurisprudence relating to appropriate bargaining units, and also the approach of the British Columbia Labour Board to similar cases. At paragraphs 20 through 24, a number of B.C. decisions are cited, including Wood ward Stores, [1975] 1 Can. LRBR 114, The Original Dutch Pannekoek House, [1979] 1 Can. LRBR 212, and an unreported decision Thompson Valley Savings Credit Union (B.C. Labour Board, file 414/81, September 2, 1981). These cases demonstrate that the approach of the B.C. Board has been to certify less than the full complement of branch outlets of an employer if that is what the union has been able to organize, with the proviso, known as the "Amon" principle, that "if and when the Union organizes the employees of the other locations the Board will enlarge this existing bargaining unit to include them" (see Arnon Investments Ltd., B.C. Labour Board, July 20, 1978). In adopting this approach, the B.C. Board has acknowledged that its role is not to certify only the most appropriate unit, but rather an appropriate unit, noting that to require a union to organize all of an employer's branches would in many cases thwart organizing and prevent employees from accessing collective bargaining at all.
Noting that this same principle is applied by this Board, the panel in National Trust went on to consider whether or not the seven branches proposed had, in the words from Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, "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". After enumerating a number of the factors often considered in relation to this test, the Board went on to state as follows:
All of these factors could, of course, be used to support the appropriateness, if disputed, of the broadest unit of branch-offices possible within Metro, being one comprised of all 37 of the branches therein. But once again the "most comprehensive" form of bargaining unit would begin to compete with the notion of allowing collective bargaining to begin at all. From our earlier review of the jurisprudence we have noted how Labour Boards in this and other jurisdictions have, in deference to that consideration, found it appropriate to impose upon en employer the burden of individual branch or outlet bargaining units, with all of the risks attendant upon such a proliferation of separate bargaining units: fragmentation of the employer's enterprise, duplication of bargaining, additional exposure to strike and picketing activity, and the potential for "leap-frogging" should different units fall to be organized by different trade unions. From that point of view, the issuance of bargaining certificates for individual branches or outlets would appear to present a "worst case" scenario for the employer, with any consolidation of branches into one bargaining unit tending to minimize the number of bargaining units which the employer may ultimately be required to deal with.
This is true, we note, whether or not a particular Labour Board has the power to subsequently amend or consolidate existing certificates. The British Columbia Labour Relations Board, as noted, has that power. The Ontario Labour Relations Board has effectively said that it does not (see City of Toronto Non-profit Housing Corporation, [1982] OLRB Rep. Feb. 280. But nothing in the present case turns on that. The "Amon principle" of the B.C. Board was not a response to employer concerns over the certifying of 3 out of 5 retail outlets; it was a response to employer concern over certifying anything less than all of the employer's outlets in a given municipality, and in particular over the practice of issuing certificates for individual locations. Indeed, the Amon case itself involved the issuance of a certificate for a single location in the municipality. What the "Amon" principle represented in other words, was recognition that the individual-branch approach to certification was a departure from standard notions of what would constitute for everyone a more viable form of bargaining structure, and an attempt to move back toward more comprehensive, broader-based collective bargaining. Whether, as with the B.C. Board, the result might eventually be a municipality-wide bargaining unit, or whether, as under the present Ontario case law, the Labour Board is restricted to whatever consolidation of bargaining units is available to it at the outset, the result, in moving away from the ultimate in fragmentation posed by individual branch bargaining units, would appear in any event to be a improvement administratively from the point of view of the employer.
It is important to note, of course, that the Board now has the power to combine bargaining units either subsequent to certification, or as they are organized, so that a larger, and perhaps most appropriate, bargaining unit, may eventually be achieved. The addition of these powers, in our view, commends this reasoning even further.
Returning to the argument made by the employer in the present case concerning the meaning of fragmentation, it appears it appears in its essence to be a concern for the geography of the proposed unit, which is admittedly somewhat odd. It is difficult, however, to see how the combination of a unit in Toronto with one in Ottawa really differs, other than in the number of original units, with the combination orders issued by the Board in the Cineplex Odeon and Hudson's Bay cases. In the former case, the units combined spread over at least as large an area, and certainly did not fall into any obvious division of the employer's operations. Similarly, the combined unit in the latter case included Hudson's Bay stores in Windsor, Kitchener, Kingston, Brampton and Toronto. As in the present case, the stores in the proposed unit did not all fall into the same region for administrative purposes. In each of these cases, in the absence of any serious labour relations problems relating to the locations of the various stores, the Board did not consider geography to be determinative.
The second argument made by counsel for the employer with respect to fragmentation was that the usual reasons advanced for reducing fragmentation, as enumerated in prior decisions of the Board, are not present in the present case. These factors were reviewed by the British Columbia Labour Relations Board in Insurance Company of British Columbia, [1974] 1 Can. LRBR 403, and were adopted by this Board in National Trust, supra. According to this approach, the goals of reducing fragmentation are: administrative efficiency and convenience in bargaining; lateral mobility for employees; a common framework of employment conditions; and, industrial stability.
The employer submitted that administrative efficiency and convenience in bargaining was not a factor here because the employer would prefer to bargain the two units separately and has in fact established two separate bargaining committees. This begs the question, however, of how two separate rounds of bargaining, and the administration of two separate agreements, would impact on the union, which clearly favours a combined structure at least in part because of these very concerns.
Lateral mobility is also not an issue according to the employer, as there is no interchange of employees between these units. The union responds that this is not to say that employees would not be interested in transfers, certainly in the event of promotion, if this possibility was opened up through central bargaining.
The establishment of a common framework of employment conditions is not important here, the employer submitted, because the issues facing the employees in these regions may be different. It does seem, however, that the employees in the two units would have as much in common as not, given the central facts that they perform the same duties, have the same job classifications, and have enjoyed the same terms and conditions of employment. In the absence of evidence to establish the significant regional differences to which the employer adverted, a common framework of employment conditions would seem an obvious goal in these circumstances.
Finally, the concern for industrial stability is said to be mitigated by the fact that the two units are represented by the same union. It is not clear, however, how this would avoid the possibility of a multiplicity of strikes, or would eliminate competitive bargaining. Indeed, it seems that some problems around potential work stoppages, such as illegal strikes, may be exacerbated where the same union is involved.
Our conclusions that at least some of the Insurance Bureau factors are present here, and thus that fragmentation is a concern, are confirmed by a review of how these factors have been applied in the Board's jurisprudence under section 7. In Premark Canada Inc., [1993] OLRB Rep. June 540, a case cited to us by the employer, the Board was asked to combine an existing bargaining unit of employees working out of Richmond Hill with a new unit of employees based in Sudbury. In considering the employer's argument that fragmentation was not an issue, the Board acknowledged that it was not in issue in the same sense as it has been in other cases such as Kidd Creek Mines Ltd., [1984] OLRB Rep. Mar. 481, but that the statute nonetheless requires a consideration of whether fragmentation will be reduced through combination. The Board went on to state that "if two separate bargaining units are retained, the union's concerns with regard to consistency in the terms and conditions of employment of individuals performing the same work could be borne out" (at paragraph 32).
Similarly, the Board made the following comment in Cineplex Odeon, a case where the facts were virtually indistinguishable to those here:
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.
For all of the reasons discussed above, we find that the combination of the two units proposed would reduce fragmentation, which would itself tend to enhance viable and stable bargaining.
Having rejected the employer's arguments as to the absence of fragmentation, we must also dismiss its submissions about viable and stable bargaining and serious labour relations problems, as its position on these issues was indistinguishable from its position on fragmentation. Indeed, the employer conceded in reply argument that it had led no evidence to establish serious labour relations problems, asserting only that the geographic and administrative disparateness which formed the foundation of its argument on fragmentation would obviously lead to serious labour relations problems in the case of combination. On the facts as set out above, we are satisfied that any problems associated with regional conditions, the managerial structure, and the minor differences between conditions at the two locations could easily be dealt with in bargaining. These facts do not disclose serious labour relations problems so as to recommend against combination.
Having regard to the criteria set out in section 7 and in light of our conclusions above, we direct that the two bargaining units in the application before us be combined into a single unit. We remain seized with regard to any further remedial relief.
DECISION OF BOARD MEMBER R. W. PIRRIE: November 23, 1994
As in the Cineplex Odeon decision I share the concerns expressed by Mr. Wightman.
I have considerable difficulty with the efficacy of a single bargaining unit consisting of 10 employees in Toronto and 27 in Ottawa. While the legislation permits the Board to order such a combination, and some of the recent jurisprudence promotes the Board doing so, in this case I would have exercised our discretion and declined to order the combination.