[1995] OLRB Rep. October 1273
1247-95-R International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 173, Applicant v. Niagara Falls Imax Theatre and/or Niagara Falls Theatre Venture, Responding Party v. Bernard Wilier, Objector
BEFORE: Gail Misra, Vice-Chair, and Board Members R. W. Pirrie and D. A. Patterson.
APPEARANCES: Bernard Fishbein and Larry Miller for the applicant; A. P. Tarasuk, Peggy Pelletier, and Sonja McGibbon for the responding party; C. J. Abbass for the objector.
DECISION OF THE BOARD; October 6, 1995
In this application for certification the applicant is seeking to represent a bargaining unit comprised of all projectionists in the employ of the responding party in the city of Niagara Falls, save and except Managers and persons above the rank of Manager. The responding party and the objecting employee do not agree to this bargaining unit description, and each has its own preferred bargaining unit description. Nonetheless, the parties had agreed at the outset of the hearing that the Board should decide whether the applicant has craft status with respect to the projectionists, before proceeding to hear the other matters in dispute.
Section 6(3) of the Labour Relations Act, the provision which addresses craft units, states as follows:
6.-(3) Any group of employees who exercise technical skills or who are members of a craft by reason of which they are distinguishable from the other employees and commonly bargain separately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or crafts shall be deemed by the Board to be a unit appropriate for collective bargaining if the application is made by a trade union pertaining to the skills or craft, and the Board may include in the unit persons who according to established trade union practice are commonly associated in their work and bargaining with the group, but the Board shall not be required to apply this subsection where the group of employees is included in a bargaining unit represented by another bargaining agent at the time the application is made.
The Board has required an applicant seeking a craft bargaining unit to meet three conditions in order to establish craft status. In Art Wire & Iron Co. Ltd., 54 CLLC Para. 17,080, the Board outlined the conditions as follows:
The group of employees concerned exercise technical skills or are members of a craft by reason of which they are distinguishable from other employees;
the group of employees concerned commonly bargain separately and apart from the other employees through a trade union that, according to trade union practice, pertains to such skills or craft; and,
the application for certification is made by a trade union pertaining to such skills.
In its decision of September 28, 1995 [reported at [1995] OLRB Rep. Sept. 1209] the
Board found that the first condition, the skills and craft component, had been satisfied by the applicant (also referred to as the "union" or "Local 173"..
In Orange-Roof Canada Limited, [1974] OLRB Rep. Nov. 761, the Board outlined as follows how the second element of section 6(3) is to be construed:
As for the second requirement, these same cases, reflecting trade union practice in relation to such employees in this industry, eliminate it as an impediment to the applicant's claim. There is no need for the applicant to establish that these specific employees in this specific company commonly bargain separately and apart having done so for the industry in general; (see The Steel Co. of Canada Ltd. 46 CLLC Para. 16,463; N. Slater Company Limited 52 CLLC Para. 17,029).
(emphasis added)
- With regard to this second element of section 6(3), this panel of the Board adopts the jurisprudence of the Board, as outlined above, and as stated in Kidd Creek Mines Ltd., [19841 OLRB Rep. March 481, paragraph 61:
As a matter of syntax, section 6(3) begins with a reference to the "group of employees" whom the union seeks to represent - here a group of electricians employed in the respondent's mining operations in Timmins, Ontario. This is the reference group to which the rest of the section relates, and it might be said that the practice of separate bargaining which the union must establish is in the respondent's enterprise, or in Ontario, or even in Timmins. However, in our view, such interpretation would be an unduly restrictive reading of the terms of section 6(3), which the Board has not adopted heretofore, and which is not justified in light of the section's purpose and historical roots. However, assuming the union's position that the subject group of employees can be described generically, and are, "electricians", the union must still put before the Board a coherent body of collective bargaining experience to demonstrate that it commonly bargains on behalf of such employees, separately and apart from other employees.
The responding party and the objector posit that the union is actually applying for a craft unit of persons who do projectionist work and other unskilled work. Therefore, on this argument, the union must satisfy the Board that it has bargained separately and apart for like groups, has an established history of doing so, and if it cannot prove these elements, the Board cannot find that the union has craft status with respect to this group of employees.
The applicant has, throughout this proceeding, maintained it is seeking to represent only the projectionists at this workplace. As the Board's decision of September 28, 1995 notes, it was conceded by the employer that it complies with the provisions of the Theatres Act and there was no dispute that the theatre in question shows film of the type which requires that a projectionist carrying a valid license be present to run such film. The Board is satisfied that the bargaining unit being proposed by the union, and the one it is claiming is a craft unit, is one composed of licensed projectionists. Given the determination the Board made as a consequence of the application of the Theatres Act, it was unnecessary for the Board to hear evidence of what specific duties projectionists have at this theatre.
The fact remains in this case that as a result of legislation this employer must use licensed projectionists to show films at its establishment. No one except a licensed projectionist can screen the films. The Board, for the reasons given in the September 28, 1995 decision, therefore found that the projectionists at this IMAX theatre were members of a craft by reason of which they were distinguishable from the other employees. For the purposes of reaching our decision on the other elements of section 6(3) of the Labour Relations Act, the group of employees the Board must concern itself with, therefore, is these projectionists. It may be that in the past the responding party has required projectionists to perform tasks in addition to those required in the projection booth. If that is so, the parties will have to negotiate how work will be distributed in the future if the union is certified to be the bargaining agent for the projectionists. However, the union cannot be precluded from making a craft unit application simply because an employer structures its workplace to mix craft and non-craft related tasks. The responding party could provide the Board no decisions in support of its position on this issue.
It was suggested by the responding party that jurisdictional disputes may ensue if the Board granted the craft unit the union is seeking in this application. To the Board's knowledge there is no other bargaining agent representing any other employees at this workplace. It is therefore unclear who will be claiming work jurisdiction. In any event, the Board has stated that overlapping or competing claims on work are not proper matters to be addressed in a representation proceeding of the type before us. Such issues are better dealt with under the provisions of a collective agreement or the provisions of the Act designed for the resolution of work assignment disputes.
The International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators (the "International") was established in 1893. As the Board found in Famous Players Inc., [1995] OLRB Rep. July 954, this union represents employees in the entertainment industry and has a long history of organizing along craft lines. In 1909 the International Alliance of Theatrical Stage Employees of the United States and Canada granted a charter to the applicant, Local 173, a Toronto local of the International union. The charter required the local to act in accordance with the Constitution and By-Laws of the International. The present constitution of the International lists Local 173 as one of its affiliated local unions, chartered to represent Motion Picture Projectionists, Operators, and Video Technicians. Motion Picture Projectionists and Operators are synonyms and in this decision the Board will refer to the two groups as "projectionists". Article 18, Section 9 of the Constitution and By-Laws of the International states that the working jurisdiction of the affiliated local union is expressly limited to that defined by the charter issued to that local.
It was uncontested that the union had submitted all of the collective agreements negotiated by Local 173. Those collective agreements were for projectionists and service technicians for theatre sound and projector equipment. Most of the union's bargaining rights have been acquired through voluntary recognition. In particular, the union has had bargaining relations with Famous Players and Cineplex Odeon for between 40 and 50 years. The only certification applications made by the union have been to represent projectionists, and until this application, employers have agreed to bargaining units comprised of only projectionists. Hence, the applicant has never been required to prove its craft status despite having been chartered by the International union to represent projectionists in 1909. In July 1995, as a result of a successful application under section 63 of the Act, Local 173 acquired the bargaining rights for projectionists from eight other IATSE locals across Ontario (see Famous Players Inc., cited above).
There is no evidence that during its 86 year history as a "projectionist" local that Local
173 has ever represented any persons other than those for whom it has been chartered. The projectionists the union is applying to represent in the present application are a definable group of employees who fall within the category described generically as "motion picture projectionists, operators, and video technicians". The Board is satisfied that this is a group for which this union has commonly bargained separately and apart from other employees, and the Board is further satisfied that the applicant is a trade union which has an established practice of bargaining on behalf of this craft.
There is no dispute that the application for certification is being made by Local 173. The Board accepts that Local 173 is a chartered local trade union of the International which pertains to the skills of motion picture projectionists, operators and video technicians, commonly referred to as projectionists and technicians.
The employer and objecting employee take the position that an IMAX theatre is different from other movie theatres, that projectionists in such theatres do not have to exercise their skills, and that the Board should therefore not grant craft status in this application. The Board has dealt with this issue in its decision of September 28, 1995 and reiterates that the nature of the technical skills exercised is not the governing factor, provided that the technical skills are sufficiently used to distinguish the job from others in that workplace. (See Cooper and Beatty Limited, 58 CLLC Para. 18,100, Commercial Papers Limited, [1969] OLRB Rep. Nov. 939, and Harbourfront Corporation, [1982] OLRB Rep. Nov. 1624).
The responding party provided the Board with two decisions in its argument. British Columbia Place Ltd., [1987] 15 CLRBR (NS) 106, is a reconsideration decision of the Labour Relations Board of British Columbia. In that case IATSE Local 118 was seeking reconsideration of the Board's decision not to grant the union a craft unit of audio-visual equipment operators. The governing legislation in British Columbia at that juncture is different in a significant aspect from the section 6(3) of the Ontario Labour Relations Act. Section 41(1) of the B.C. Labour Code states as follows:
Where a group of employees belong to a craft or group exercising technical or professional skills which distinguish it from the employees as a whole, and they are members of one trade union pertaining to the craft or skills, the trade union may, subject to sections 39, 40, 43, and 45, apply to the board to be certified as bargaining agent for the group if it is otherwise an appropriate bargaining unit.
(emphasis added)
We have reviewed this decision but did not find it to be of assistance to us in reaching our decision since the legislative framework in British Columbia was so different from the Ontario Act, and the fact situation in that case made it distinguishable from the situation before us. In addition, the B.C. Board relied on American jurisprudence in this case, which also appeared to reflect a different regime.
Hornco Plastics Inc., [1993] OLRB Rep. May 411, was also submitted to the Board by the responding party. This case addressed issues of fragmentation of bargaining units but not in the context of craft units. Since the issue to be decided by the panel in this case is one of craft status, we did not find Hornco Plastics to be of assistance to us in reaching our decision. While the Board is cognizant that a finding of a craft unit in the case before us will lead to some fragmentation of a potentially larger bargaining unit, that is not a consideration which section 6(3) contemplates.
On behalf of the objecting employee it was argued that since the union did not have a large number of collective agreements for projectionists, despite having represented projectionists since 1909, the Board should find that the union had not established sufficient history of bargaining separately and apart in this industry. This argument has no merit. The Board does not gauge bargaining history by looking at how many bargaining units an applicant has or the number of collective agreements reached. The issue for the Board is the quality of the bargaining history: Among other factors the Board may consider who the applicant has represented historically, how long that history is, and whether the applicant has been consistent in maintaining its practice of representing only those for whom it is claiming craft status.
While the Board is not bound by the decisions made by Labour Relations Boards in other jurisdictions, it is worth noting that the applicant supplied the Board with a current collective agreement between the Societe du Vieux-Port de Montreal Inc. (Cinema IMAX) and IATSE Local 262 in which the employer recognized the union as the bargaining agent for all employees who were performing the duties of projectionists for the IMAX Cinema in Montreal. That collective bargaining relationship came about as a result of the Canada Labour Relations Board certifying the union as the bargaining agent for the projectionists on February 14, 1990. In Saskatchewan Science Centre Inc. (Saskatchewan L.R.B. File No. 288-94, Feb. 21, 1995), the Saskatchewan Labour Relations Board certified IATSE Local 295 as the bargaining agent for a bargaining unit comprised of all the projectionists at the Kramer (IMAX) Theatre in the Saskatchewan Science Centre. It would appear that bargaining units comprised solely of projectionists working in IMAX theatres have been found, by other labour relations tribunals, to be appropriate bargaining units.
For all of the above reasons, the Board finds that the three conditions referred to in section 6(3) of the Act have been satisfied.