Ontario Labour Relations Board
[1995] OLRB Rep. September 1209
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 Fails Imax Theatre and/or Niagara Falls Theatre Venture, Responding Party v. Bernard Willer, 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; Hugh Christie, Peggy Pelletier and Sonja McGibbon for the responding party; C. J. Abbass and Bernard Willer for the objector.
DECISION OF THE BOARD; September 28, 1995
1This is an application for certification in which there have been a number of days of hearing held on the issue of the craft status of the projectionists working in the employ of the responding party.
2As noted in our decision of August 4, 1995 (see para. 7), the union called Mr. Jim Walterhouse to give evidence. In the course of cross-examination of Mr. Walterhouse by Mr. Abbass, counsel for the objecting employee, the union made an objection to the line of questioning. Having heard Mr. Fishbein's objection and considered the matter (see para. 8 of August 4, 1995 decision), the Board ruled as follows:
"Mr. Fishbein has squarely raised an issue. We want to hear submissions on the next day of hearing about why the licensing requirement under the Theatres Act is not determinative of the skills part of section 6(3). If we are persuaded by the union's position and the rest of section 6(3) is satisfied, that may likely be determinative of the bargaining unit description."
3On September 5, 1995 the parties returned to make their submissions on this issue. Section 6(3) of the Act states:
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.
4Mr. Fishbein's objection about the relevance of the evidence being elicited on cross-examination was made because he maintains that the licensing requirement in the Theatres Act, R.S.O. 1990, c.T.6., makes the projectionists members of a craft by reason of which they are distinguishable from the other employees, especially given the rigour of the licensing requirements under the Act and Regulations. The union argues the Theatres Act is a law of general application which prohibits anyone outside of the union's proposed bargaining unit from doing projection work, and to do projection work, one must have a license. That in and of itself makes these employees obviously distinguishable from the rest of the employees at this entertainment venue. The fact that in some provinces projectionists do not need a license is not helpful, it is argued, because it is only in Ontario that this Board has jurisdiction. The union states that the requirements of the Theatres Act are analogous to the Trades Qualification Act, R.S.O. 1990, c. T.17, from which certified construction craft units flow.
5The Trades Qualification Act requires those wishing to be apprentices to apply for apprenticeship in their trade of choice, and to act as apprentices for a period of at least two years. After serving the time required for the trade in question, the apprentice must write the requisite exams to determine competency to the satisfaction of the Director of Apprenticeship. A certificate of qualification in a trade follows the successful completion of a program of apprenticeship.
6Mr. Abbass argued the Board should not uphold the union's objection to his questions because the intervenor and employer will call evidence to show that even if one has to have the license, the projectionists have no technical skills to define themselves as a craft. He argued that if projectionists had been covered by the Trades Qualification Act, then there may be support for the union's position. The objecting employee wishes to be able to call evidence of what skills an IMAX projectionist actually needs at this particular workplace.
7On behalf of the employer, it was argued the Board should find the licenses to be relevant but not determinative and the Board should continue to hear evidence of distinguishability. Mr. Christie argued that, at best, the licenses are surrogates for distinguishability and that the Board needs to know how good the surrogate is in this workplace, i.e., how useful is the license in this IMAX theatre. The employer maintains that since it should not be covered by the Theatres Act, the license is not important. In addition, it is suggested that at an IMAX theatre projectionists are not required to exercise enough skill to be a craft because IMAX owns the projectors and no one can work on a defective projector except IMAX personnel. The employer asks if it is appropriate to judge the distinguishability of these employees on the basis of what the employer terms "anachronistic legislation" -
8Having considered the submissions of the parties we have reached the conclusion that the licensing requirement under the Theatres Act is determinative of the skills component of the test the union must meet pursuant to section 6(3) of the Act, and therefore, the union's objection to the relevance of further questions about the specific skills of projectionists is upheld. The facts which we have relied upon and our reasons for this decision follow.
9Some of the relevant sections of the Theatres Act are as follows:
- In this Act,
"standard film" means cinematographic film of 35 millimetres or more in width.
Theatres are classified and defined as follows:
Class A theatre means premises in which standard film is used to exhibit moving pictures.
No person shall,
(a) operate a projector designed for the use of standard film; or
(b) operate a projector in a Class A or C theatre,
unless the person is licensed as a projectionist under this Act and no licensee, manager or person in charge of a Class A or C theatre shall permit any person to operate a projector in the theatre unless the person is licensed as a projectionist under this Act.
Projectionist licenses are classified as first class, second class and apprentice.
An application for examinations and tests for any class of projectionist license shall be made to the Director accompanied by the prescribed fee.
10The Ontario Theatres Act requires that projectionists in the type of theatre which is the subject of this application, the IMAX theatre, must be licensed. While there was some suggestion in the employer's submissions that this company does not agree with the governing authorities about whether it falls under the auspices of the Theatres Act, it was conceded that the company nonetheless complies with its obligations under this Act. There is no dispute that IMAX film is 70 millimetres in width.
11According to the provisions of the Theatres Act, the process to get a projectionist's license is as follows. One must first apply to the Director appointed under this Act (at the Ministry of Consumer and Commercial Relations) for an apprenticeship license. The main qualifications to get this license are that the individual must be 18 years of age or older, provide satisfactory evidence of physical ability to handle projection and fire-fighting equipment, and must provide satisfactory evidence that s/he does not suffer from any physical or mental disability which would prevent the person from operating projection equipment safely (section 28 (3)). Pursuant to Regulation 1031, R.S.O. 1990, section 34(7), an apprentice must then work under the supervision of a licensed projectionist for a minimum of 800 hours to qualify to write an exam.
12There are two sets of exams which qualify one for a Second Class License (for general projection work), or for a First Class License (for more detailed operation of equipment and dealing with more electronics). The Act states that the examinations and tests are designed to determine the competence and ability of the applicant to act as a projectionist in the particular class of license (section 26). Passing the exam gets one the license to act as a projectionist in Ontario in a facility which requires a licensed projectionist in the booth. If one fails the exams and tests, one cannot try the exams a second time without working as an apprentice or second-class license holder for a further period that the Director (appointed under the Act) requires (section 27). If one fails the exams and tests twice, one cannot try again without leave of the Director (section 27).
13Projectionists' licenses are not transferable (section 29). Pursuant to the Regulations, licensed projectionists must have their licence in their possession while on duty at a theatre (section 6), must remain on the theatre premises at any time when film is being exhibited in the theatre (section 7(1)), and the projectionist is responsible for ensuring that projection equipment in the theatre is in good repair and in good working condition at all times, and must be in a position to inspect and keep in good repair all film in the theatre which is under the control of the projectionist (section 9).
14Contraventions of the Act are punishable by fines of up to $25,000 or up to one year in prison for individuals, and fines of up to $100,000 for corporations (section 58).
15While the employer's argument appears on the surface to have some merit because the Board is being asked to look behind the license, we are not convinced it is necessary to hear extensive evidence about what either the training regime of the apprenticeship entails, or evidence of what aspects of projectionist training are actually utilized in the course of these IMAX projectionists' work. In the final analysis, the Board would still be left with the fact that the Legislature of this province has determined it is mandatory for qualified and licensed projectionists to be the only ones who can operate the film projection equipment in film theatres of the type in question in this case.
16The Board's jurisprudence suggests that the Board has refused to grant a craft unit where the individuals in question do not require a license or do not need any formal training. It is clear from the wording of section 6(3) of the Labour Relations Act that if the projectionists are not "members of a craft by reason of which they are distinguishable from the other employees", the union would then have to show that the projectionists exercise technical skills which make them distinguishable. However, it is not necessary for both conditions to be met to satisfy the first criterion in establishing craft status.
17From a review of the Theatres Act it is apparent to us that the licensing provision in the Theatres Act is not a frivolous requirement. The process by which projectionists are licensed is not a pro forma one, but has the hallmarks of acquiring a trade or craft. The requirement that only licensed projectionists can work in a projection booth to run films in Class A theatres suggests the Legislature's concern that only those persons who have met the criteria set by the government should be responsible for the showing of certain types of film.
18As indicated to the parties in our ruling made on July 27, 1995 (in para. 7 of the August 4, 1995 decision), the Board's jurisprudence on the skills component of the craft status test is clear: the Board has placed emphasis on the distinguishability of the group in question from other employees of that enterprise, having regard to the work done by the members of the group. The nature of the skills used is not the governing factor in the Board's analysis.
19We cannot accept the position taken by the responding party and intervenor that the Board should proceed and hear evidence that even though these projectionists are licensed, they do not have the requisite technical skills to constitute a craft. What we are being asked to do is to accept the license as a mark of distinguishability, but to continue with an inquiry into whether the projectionists exercise technical skills. The relevant portion of section 6(3) states:
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 . .
[emphasis added]
The legislation does not contemplate a union having to meet both criteria, but only one. Since we are satisfied that the union has established the projectionists are the members of a craft and are therefore distinguishable from the other employees of this employer, it is unnecessary to hear any evidence of the technical skills of these employees at this workplace.
20We do not agree with the employer's argument that the fact of the license is "relevant, but no more" and that the Board needs to hear more about how the Theatres Act operates in this workplace. The Board is not in a position to determine the applicability of the Theatres Act to this theatre, nor is it in a position to comment on the appropriateness of that legislation's provisions to the IMAX context. The undisputed fact is that at present the Theatres Act is being applied at this theatre, and it is not for this Board to consider any other regime which may better fit this business or whether this is the type of theatre contemplated by this Act.
21To state the obvious, the Theatres Act is valid law in this province, this responding party is governed by that law, and that law requires that only projectionists who have met provincial standards and who hold a valid license can show films of the sort shown in the responding party's theatre. The Board is therefore satisfied that the projectionists "are members of a craft by reason of which they are distinguishable from the other employees".