International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada v. Famous Players Inc.

[1997] OLRB REP. JANUARY/FEBRUARY 50

3792-95-U 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: Janice Johnston, Vice-Chair, and Board Members Orval R. McGuire and P V Grasso.

APPEARANCES: Bernard Fishbein, Lesha Van Der Bij, J. Wood, L. Miller and D. Marcone for the applicant; Harry Freedman and Dough Smith Jc2for the responding party.

DECISION OF THE BOARD; January 20, 1997

1. This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging a violation of sections 70, 72, 76, 87 and 17 of the Act.

2. At the hearing scheduled to deal with this matter, the parties provided the Board with the following agreed statement of facts:

AGREED STATEMENT OF FACTS

(a) The Applicant commenced an organizing campaign for "front-of-house" employees at various movie theatre locations operated by the Responding Party. The Applicant was certified at the following locations:

(i) OLRB File No. 3182-94-R

Britannia Six Theatre, City of Ottawa, on or about December 20, 1994.

(ii) OLRB File No. 3467-93-R

Gloucester 5 Cinemas, City of Ottawa, on or about February 10, 1994

(iii) OLRB File No. 0l00-95-R

Capitol Square Cinemas, City of Ottawa, on or about October 2, 1995

(iv) OLRB File No. 0099-95-R

Rideau Centre Cinemas, City of Ottawa, on or about October 2, 1995.

(v) OLRB File No. 2236-94-R

Uptown Theatre, Municipality of Metropolitan Toronto, on or about December 6, 1994.

(vi) OLRB File No. 3412-93-R

Eglinton Theatre, Municipality of Metropolitan Toronto, on or about February 10, 1994.

(vii) OLRB File No. 1143-95-R

400 Drive-In, City of Vaughan, on or about August 2, 1995.

(vii) OLRB File No. 4709-94-R

Jackson Square Cinemas, City of Hamilton, on or about October 2, 1995.

(b) In the initial applications for certification for the Capitol Square, Rideau Centre and Jackson Square Cinemas (OLRB File Nos. 3719, 3847 and 3916-94-R) the Responding Party challenged the form of membership evidence the Applicant had filed in support of the application. The challenge was successful and the Board, by decision dated April 25, 1995 ([1995] OLRB Rep. April 397) dismissed the applications. When the applicant filed subsequent applications using different forms of membership evidence, the Responding Party challenged that membership evidence as well. Those challenges were dismissed by the Board by decision dated October 2, 1995. The Responding Party has sought reconsideration of various of the Board's certificates based upon the decision in [1995] OLRB Rep. April 387. That matter was heard by the Board February 21, 1996. No decision has been issued by the Board as of this date.

(c) When the Applicant served notice to bargain on or about February 16, 1994, it requested the Responding Party to negotiate the various locations together in one set of negotiations for one collective agreement. The Responding Party refused on the basis that each certificate should be bargained separately. As a result, the Applicant subsequently made an application to combine the bargaining units under what was then Section 7 of the Labour Relations Act (OLRB File No. 0158-95-R).

(d) Although a combination application was scheduled for hearing, the parties agreed to adjourn it pending the release of the decision in a similar application involving Cineplex Odeon Corporation (OLRB File No. 4534-93-R). After the decision in Cineplex Odeon Corporation [1994] OLRB Rep. July 824 was released on or about July 22, 1994, the Responding party took the position that the outcome did not govern the facts in the application relating to it. As a result, a combination application was rescheduled for hearing before the Board. The Board noted that the facts "were virtually indistinguishable" from the Cineplex Odeon case and chose to follow the decision in Cineplex Odeon Corporation and by decision dated November 23, 1994 ([1994] OLRB Rep. Nov. 1527) the Board chose to combine the bargaining units.

(e) Negotiations between the Applicant and the Responding Party for a collective agreement began on or about March 9, 1995, the first date that the Responding Party was available. Two earlier meeting dates were cancelled at the request of the Responding Party.

(f) Numerous and lengthy negotiation meetings were held before a collective agreement was ultimately concluded, effective November 7, 1995 (the "Collective Agreement").

(g) Prior to the Collective Agreement, the Responding Party had provided its front-of-house employees at various locations throughout Ontario with free passes which allowed them to attend movies at the Responding Party's various locations.

(h) Following the execution of the Collective Agreement, the Responding Party immediately ceased providing free passes to the front-of-house employees covered by the Collective Agreement.

(i) When counsel for the Applicant was advised of this development he contacted counsel for the Responding Party in the hope that the matter could be resolved. By letter dated December 7, 1995, counsel for the Responding Party wrote to counsel for the Applicant confirming that the Responding Party would no longer issue free passes to those employees covered by the Collective Agreement since such movie passes were not required by the Collective Agreement. A copy of the letter is attached.

(j) The Responding Party took the position that it was not required to continue to provide the free passes by virtue of Article 17.01 of the Collective Agreement:

This Agreement constitutes the complete Agreement between the parties and supersedes all prior agreements and understandings, whether oral or written, that may have existed up to the effective date of this Agreement. It expresses the obligations and rights of the

Employer and the Union during its term. Neither party relies on any statements or representations unless they are expressly set out in this Agreement.

(k) Section 17.01 of the Collective Agreement was proposed by the Responding Party. There was limited discussion and negotiations on this section and primarily only during the conciliation meeting of August 13, 1995. The Applicant, initially refusing to agree to this proposal, characterized it as an anti-estoppel clause. The Responding Party acknowledged this and maintained its position that the provision be included in the Collective Agreement. The Responding Party asserted that since there were several locations that would be covered by the Collective Agreement, it could not risk being subject to grievances concerning practices that could vary from theatre to theatre, each with a different individual manager with their own discretion and whose individual theatre practices the Responding Party might not even be aware of. Ultimately, later that day, the Applicant agreed to include section 17.01. There was never a prior agreement or understanding, oral or written, between the Applicant and the Responding Party with respect to movie passes. The issue of movie passes was never discussed or raised in negotiations. There were never any statements or representations made by either party with respect to movie passes during negotiations.

(I) The Responding Party is also bound to collective agreements in all of these same locations with Local 173 or Local 303 of the Applicant covering the projectionists at those locations. For example, the Local 303 collective agreement with the Responding Party contains the following provision:

1.02 Except for the express provisions of applicable legislation, this Agreement represents all the terms and conditions which govern the relations between the Union, the Employer and those employees of the Employer to whom this Agreement applies. No other or future terms and conditions, express or im­plied, are applicable or enforceable, except where, to the extent of, further mutual agreements which are committed to in writing by the parties and expressly appended to this Agreement.

The Local 173 Agreements in the Toronto and Ottawa areas contain the exact same provision. The Responding Party is bound by collective agreements with Local 173 or Local 303 at all of its locations throughout the Province of Ontario in respect of projectionists.

(m) The Responding Party has and continues to allow its individual managers the discretion to provide free passes to attend movies at the Responding Party's various locations to the projectionists covered by these agreements.

(n) The terms and conditions of employment of the front-of-house employees of the Responding Party who are not covered by the Collective Agreement differ from the terms and conditions of employment of the bargaining unit employees. The bargaining unit employees are eligible to receive a higher rate of pay based upon their length of service. Furthermore, the bargaining unit employees have seniority rights in respect of scheduling, lay-off and re-call from lay-off and also have access to a grievance and arbitration procedure while the front-of-house employees not covered by the Collective Agreement do not.

(n)(i) The Responding Party provided all of its front-of-house employees with a 256 beverage cup benefit prior to the execution of the collective agreement. That benefit is continued under the collective agreement in accordance with section 13.08. The Applicant had initially proposed a clause in the collective agreement granting a discount on all concession items, including beverages, for all front-of-house staff. The Responding Party refused and ultimately section 13.08 was agreed upon. There was no discussion of section 17.01 during the negotiations about section 13.08. Section 17.01 formed part of the Responding Party's proposals from the outset. In fact, section 13.08 was agreed upon prior to the specific negotiations about section 17.01. Conversely, there was no discussion about section 13.08 during the negotiations about section 17.01.

(o) The Responding Party has had a practice known as "run-throughs". A run-through is when a print of the movie is run-through or screened prior to its exhibition for the public by a projectionist to ensure that the print has no defects or flaws, and that the projectionist has put the film together in the correct order. Customarily, the run-through would occur late in the evening or in the daytime hours when the theatre was not open to the public. In the Hamilton area, members of the staff have been permitted to attend at the run-through and view the movie for no charge.

(p) Since the execution of the Collective Agreement, at the Jackson Square Cinema, the Responding Party has instructed that no one other than the projectionist is now permitted to attend at the run-through. Other employees at the other locations not covered by the Collective Agreement in the Hamilton area are still permitted to attend run-throughs for no charge.

DATED AT Toronto THIS DAY OF .1996.

INTERNATIONAL ALLIANCE FAMOUS PLAYERS INC. OF THEATRICAL STAGE, EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF THE UNITED

STATES AND CANADA

APPENDIX A

Dear Mr. Fishbein:

Re: Famous Players Inc. - Jackson square Cinemas

You and I spoke last week about a concern you had with respect to bargaining unit employees at the above location being denied movie passes.

I raised the concern you expressed to me with the Company. I am advised that the Company is no longer issuing movie passes to those employees since the Company is not obliged to do so under the collective agreement. The Company's obligations are set out in the collective agreement. Section l7.0l of the collective agreement makes clear that any prior understandings that may have existed prior to the effective date of the collective agreement are superseded by the collective agreement. For example, employee entitlement to purchase beverages at a special price for their break was negotiated. Continuation of movie passes was not. Simply put, the Company is not obliged to issue movie passes to employees at Jackson Square who are subject to the collective agreement.

I trust that this makes clear the Company's position in this matter.

Yours very truly,

Harry Freedman

3. After the Board had had an opportunity to review the agreed to facts, we proceeded to final submissions. In final argument the parties referred to several additional articles in the Collective Agreement. They read as follows:

2.03 If during the term of this Agreement, should the Ontario Labour Relations Board revoke the Union's certificates in respect of the Britannia Six Theatre, the Gloucester Cinemas, Uptown Theatre or Eglinton Theatre, that theatre location shall be deleted from section 2.01. Similarly, should the Board certify the Union during the term of this Agreement in respect of any of those theatre locations following the revocation of the Union's certifi­cate, that theatre location shall be added to section 2.01.

2.04 Unless the parties enter into a separate agreement in writing that provides that the theatre locations listed in section 2.0l above comprise one bargaining unit, each theatre location listed in section 2.01 above constitutes a separate bargaining unit.

I 3.08 Employees who are at work shall be permitted to purchase beverages for their break with a "staff cup" at a cost of twenty-five (25) cents for each beverage.

4. The relevant sections of the Labour Relations Act, 1995 are as follows:

5. The parties shall meet within IS days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collective agreement.

6. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administra­tion of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

7. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employ­ment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

76. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

77. (1) No employer, employers' organization or person acting on behalf of an employer or employers' organization shall,

(a) refuse to employ or continue to employ a person;

(b) threaten dismissal or otherwise threaten a person;

(c) discriminate against a person in regard to employment or a term or condition of employment; or

(d) intimidate or coerce or impose a pecuniary or other penalty on a person, because of a belief that the person may testify in a proceeding under this Act or because the person has made or is about to make a disclosure that may be required in a proceeding under this Act or because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act.

(2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall,

(a) discriminate against a person in regard to employment or a term or condition of employment; or

(b) intimidate or coerce or impose a pecuniary or other penalty on a person, because of a belief that the person may testify in a proceeding under this Act or because the person has made or is about to make a disclosure that may be required in a proceeding under this Act or because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act.

96. (5) On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to the person's employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization.

97. Counsel for the employer argued that the issue before the Board in this case, was whether it was an unfair labour practice for an employer, after having executed a collective agreement containing a clause such as article 17.01, to discontinue the practice of issuing free movie passes given that the union didn't ask for the practice to continue. He suggested that the labour relations community would be shocked if a union who didn't raise something in bargaining could come to the Board and ask for it. In his view, the terms and conditions of employment for this group of employees was spelled out in the collective agreement. In reviewing the sections of the Act which the applicant relies upon, counsel suggested that the only section which might raise some concern was section 72. However, in his view, the elements of section 72 have not been satisfied as there is no connection between union membership and what took place in this case. There is no evidence of any threats, penalties or compulsion. Counsel argued that there is no evidence of any message being sent by the employer such as, get rid of the union and you'll get the passes back. In counsel's view section 17 of the Act was inapplicable as the parties had successfully bargained a collective agreement which had been signed nine months ago.

98. In reviewing the agreed to facts, counsel for the employer pointed out that there was no suggestion that the employer had committed an unfair labour practice or exercised any powers in an improper way leading up to the union's ultimate certification. While he conceded that the employer had raised issues and taken positions that may have extended the litigation process, they were entitled to do so. Counsel also admitted that the employer had engaged in hard bargaining but pointed out that after six months of bargaining (not unusually protracted for first contract negotiations) the parties were able to reach agreement on some complex issues and sign a collective agreement. Therefore, there is no history of unfair labour practices being committed by the company and no history from which the Board could infer an anti-union animus.

99. Turning to the effect of article 17.01, counsel pointed out that it was part of the company's proposals from the beginning. Both parties were experienced negotiators. Counsel argued that it was not up to the employer to tell the union what to ask for. In his view the language of article 17.01 makes it clear that all prior agreements are subsumed by the collective agreement. He pointed out that the union negotiated article 13.08 which resulted in the continuance of a long standing practice. The issue with regard to the free passes never came up and in counsel's view, if the union wanted the practice to continue, they should have sought that. It was not up to the employer to raise it. In the same way that the union sought and obtained the continuation of the beverage discount, they could have raised the issue of the movie passes and did not. Counsel stressed that it was important to note that there are trade offs in collective bargaining. If the union had asked for the continuation of the free passes, they might have gotten it and/or it might have been a trade off for something else.

100. In dealing with the fact that the non-union front-of-house employees still get the free passes, employer counsel suggested that it is not illegal to have different terms and conditions of employment for represented and unrepresented employees. Although the unrepresented employees continue to receive the passes, they do not have many of the benefits enjoyed by the bargaining unit employees. Although individual theatre managers can provide free passes to the projectionists (members of a different bargaining unit), counsel pointed out that it is important to note that there is generally one projectionist and at most two projectionist per theatre, but that there are numerous front-end employees.

To continue the practice of issuing free passes to the front-end staff would result in a loss of revenue. With regard to the discontinuance of the free admittance of staff to "run throughs" at the Jackson Square Cinema in Hamilton, counsel argued that this approach is consistent with the elimination of the free passes. Once again, he suggested that if the employees wanted to ensure the continuance of this practice they should have raised the issue during collective bargaining.

9. Counsel referred the Board to two cases, Major Foods Ltd. and Retail, Wholesale & Department Store Union, Local 1065 1989 CanLII 9301 (NB LA), 7 L.A.C. (4th) 129 and Inco Limited, [1984] OLRB Rep. Nov. 1584. In the Major Foods case, an arbitrator concluded that the company, in providing a benefit to its non-union employees (a dental plan) that it did not give to its unionized workers, was not motivated by an anti-union animus. Counsel suggested that the analysis was equally applicable to the facts before us. In the Inco Limited case, the Board rejected the proposition that it is a violation of what now is section 72(a) of the Act for an employer to give benefits to unrepresented employees that are not also being received by employees who are represented by a trade union. Although the Board in the Inco Limited case alluded to the fact that it might be a breach of the Act in certain instances for an employer to refuse to agree to provide unionized employees with benefits enjoyed by unorganized employees, counsel argued that this was not the case before us as the employer had never refused to provide the passes as the union had never raised the issue in negotiations. Counsel argued that, although this case may have the superficial appearance of unfairness, there is no basis for concluding that the employer violated the Act.

10. Counsel on behalf of the union argued that it is important for the Board to look at the context in which this application arose. To summarize briefly: the union organizes and is successful; the employer challenges the cards and wins; the union applies with new cards and ultimately wins; the employer refuses to combine the bargaining units until it is forced to by the Board; and negotiations are slow to begin as the employer is unavailable. Although counsel conceded that there was no history of unfair labour practices on the part of the employer that the union could point to, he suggested that, to use his words, the employer "relentlessly resisted the organizing campaign" and stalled the negotiations for as long as possible. Immediately after the collective agreement was signed, all of the employees covered by the collective agreement were denied the free movie passes which, counsel pointed out, are still given to the unrepresented employees and the projectionists. At one theatre in Hamilton, the employer went one step further and denied the admittance of employees to "run throughs". Counsel characterized the employer's contention that the free movie passes resulted in revenue loss as ridiculous and pointed to the fact that there was no support for this in the agreed to facts. If the employer wanted to assert some sort of financial cost, it should have been included in the agreed to facts and wasn't.

11. Union counsel argued that the employer's conduct was a violation of section 70, as the cutting off of the free passes without any justification interfered in the representation of the employees by the trade union. The employer's conduct violates section 72(a), as the employer is discriminating against those people who joined the trade union by taking away the free movie passes and violates section 72(c) as eliminating the passes is a pecuniary penalty. Section 87 of the Act is applicable to this case, as in counsel's view, employees are being discriminated against because they applied for certification.

12. It is not surprising that the employer does not admit to an anti-union motive for its actions in denying the movie passes. Counsel for the union pointed out that he did not expect the employer to agree that it was trying to send a message to the newly organized employees. However, he urged the Board to conclude that the employer's reasons for eliminating the passes were not devoid of anti-union animus and that the employer had not met its onus pursuant to section 96(5) of the Act. There is no economic basis for the decision to eliminate the passes, the employer merely wanted to "get in a dig at employees and show them what happens when you join a union", to use his words. In counsel's view, article 17.01 does not provide a defence to the employer as a party cannot contract out of the Act. Union counsel interpreted article 17.01 as not referring to agreements between the employer and the individual employees, but to prior agreements between the union and the employer. As such, 17.01 was not intended to cover practices such as the issuance of free movie passes to staff. As noted in the agreed to facts, the issue of the movie passes was never raised in negotiations and a different rationale for article 17.01 was given by the employer during negotiations.

13. Union counsel pointed to the fact that despite similar language in the collective agreement covering projectionists, they still get free movie passes. As he put it, "a deal is a deal" is not true for the projectionists, whereas the employer seeks to hold the front-end staff to the terms and conditions of the collective agreement. Counsel questioned how far the company would pursue this approach of denying employees anything not included in the collective agreement, as it is impossible to include each and every term and condition of employment in the collective agreement. In counsel's view, if the employer was planning to take away the movie passes, the union should have been told this so that discussions could have taken place. The company's failure to raise this issue amounts to bargaining in bad faith in his view. In support of this proposition counsel referred the Board to Westinghouse Canada, [1980] OLRB Rep. April 577. Counsel suggested that the reason for the denial of admission to employees to the run throughs at the Jackson Square Cinema in Hamilton cannot be characterized as anything but anti-union. He took the view that neither case put forward by the employer was helpful and that they were distinguishable from the case before the Board. After referring to the comment by the Board in the Inco Limited case (supra) that in some circumstances where an employer refused unionized employees benefits given to non-unionized employees it could constitute an unfair labour practice, counsel urged the Board to conclude that the circumstances in this case fit the situation alluded to in the Inco Limited case (supra).

14. In support of his position counsel for the union referred the Board to Johnson Controls Limited, [1971] OLRB Rep. Oct. 643 and to the Cambridge Reporter, [1993] OLRB Rep. Oct. 1035. In the Johnson Controls case, although the employer made changes to the employee pension plan for legitimate business purposes, the Board nevertheless concluded that the employer in treating the unionized employees differently from the non-unionized employees was acting contrary to the Act. Counsel also referred the Board to the Cambridge Reporter decision, which in his view is supportive of the proposition that the employer is entitled to treat employees differently but their motivation in so doing, may constitute a violation under the Act.

15. In reply, counsel for the employer argued that the Cambridge Reporter case was distinguish­able from the facts before us, as in it the Board had direct evidence of anti-union animus and was dealing with a situation in which no collective agreement was in place. He pointed out that in the Johnson Controls case, we do not know whether the collective agreement contained an article compara­ble to article 17.01. The Board in the Johnson Control case was dealing with arrangements beyond the collective agreement. If it had had before it language in the collective agreement similar to article 17.01, the result would have been different in counsel's view.

16. Employer counsel characterized the interpretation of article 17.01 put forward by the union as nonsensical. While acknowledging that article 17.01 was intended to deal with different arrangements which might exist in different theatres, clearly it was also intended to terminate all prior agreements and understandings affecting employees. Article 17.01 was intended to and does supersede all prior agreements and is not restricted to agreements between the union and the employer. In Counsel's view, the fact that the employer still allows the projectionists free passes should lead to the opposite inference than that suggested by counsel for the union. If the employer was anti-union and out to get its unionized employees, then it should have denied the free passes to all unionized employees. The practice of free passes ended for the front-end employees as the collective agreement superseded it. Counsel argued that in the face of article 17.01, the union should have raised the issue of the free passes if it wanted to ensure the continuation of the practice. The employer did not give the benefits attained by the unionized employees (i.e. seniority in layoffs, scheduling, etc.) to the non-union staff and there is nothing illegal about having different terms and conditions of employment for unionized versus non-unionized staff.

17. In conclusion, counsel argued that the employer has not acted illegally in this case. Although the employer is being tough, this is consistent with its previous activities which were not anti-union. The collective agreement provides the terms and conditions of employment for the unionized employees and there is nothing in the collective agreement about free movie passes. The union did not ask for it, so the Board should not give it to them.

DECISION

18. Before turning to the specifics of this case it is helpful to briefly review the approach taken by the Board when an employer decision is alleged to constitute an unfair labour practice and a violation of the Act. In the Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299, the Board stated:

19. Section 79(4a) of The Labour Relations Act places the legal burden upon the employer in complaints such as the one before us, to satisfy the Board, on the balance of probabilities, that it has not violated the Act. In order for the Board to find that there has been no violation of the Act it must be satisfied that the employer's actions were not in any way motivated by anti union sentiment; the employer's actions must be devoid of "anti union animus". (See the Bushnell case [1944] OR (2d) at page 442). The employer cannot engage in anti union activity under the guise of just cause or under the guise of business reasons. Regardless of the viable non-union reasons which exist the Board must be satisfied that there does not co-exist in the mind of the employer an anti-union motive. The employer best satisfies the Board in this regard by coming forth with a credible explanation for the impugned activity which is free of anti union motive and which the evidence establishes to be the only reason for its conduct (See Barrie Examiner [1975] OLRB. Rep. Oct. 745 and The Corporation of the City of London [1976] OLRB Rep. Jan. 990).

20. In cases such as these the Board is very often required to render a determination based on inferential reasoning. An employer does not normally incriminate himself and yet the real reason or reasons for the employer's actions lie within his knowledge. The Board, therefore, in assessing the employer's explanation must look to all of the circumstances which surround the alleged unlawful acts including the existence of trade union activity and the employer's knowledge of it, unusual or atypical conduct by the employer following upon his knowledge of trade union activity, previous anti union conduct and any other "peculiarities". (See National Automatic Vending Co. Ltd. case 63 CLLC 16,278). If, having regard to the circumstantial evidence, the Board cannot satisfy itself that the employer acted without anti union motivation, the Board must find that the employer has violated the Act. These determinations, however, are most difficult and require an incisive examination of all the evidence. Not only must the Board "see through" the legitimate reasons which often co-exist with the unlawful, but at the same time the Board must be capable of distinguishing between the unlawful and the unfair. The Board cannot find, and neither should it automatically infer, that an employer who has engaged in conduct which is unfair has violated the Act even if the unfair treatment is coincidental with an organizing campaign. However, because of the nature of the proceedings and the frequent requirement for inferential reasoning the Board would be delinquent if it did not consider, for purposes of drawing an adverse inference, unfair treatment during an organizing campaign of itself or in conjunction with the other circumstantial evidence. The Board, therefore, must be acutely sensitive to all of the circumstances and must not be unduly swayed by either the co-existence of unfair treatment or by the co-existence of legitimate reasons for the employer's conduct in determining if The Labour Relations Act has been violated.

21. The employer in this case, relying on article 17.01 of the collective agreement, has ended the practice of providing free movie passes to the newly organized front-of-house staff. The decision to terminate the practice was implemented immediately after the first collective agreement between the parties was signed. After considering the innovative submissions of counsel for the union regarding the interpretation of article 17.01, we are of the view that article 17.01 should not be restricted in the manner in which he suggests. In our view, it means what it says, namely that the collective agreement constitutes the complete agreement between the parties and supersedes all prior agreements and undertakings. Prior agreements that are covered by article 17.01 include the provision of free movie passes to front-of-house staff. As there is no specific language in the collective agreement dealing with the movie passes, in our view article 17.01 applies to the situation.

22. Had we been sitting as a Board of Arbitration charged with the task of interpreting article 17.01, our task would likely have ended at this point. However, that is not our role in this case. As the tribunal responsible for ensuring compliance with the Act, we must make a different determination. Our function in this case is not to interpret a provision in the collective agreement but to decide whether or not an unfair labour practice has been committed. Accordingly, the issue before us is whether or not the employer, in denying the free movie passes to the unionized front-of-house staff, was motivated not only by a desire to comply with the collective agreement but also an anti-union animus or intention to penalize this group of front-of-house employees.

23. The employer, as is the norm in cases of this nature, denies that it was in any way motivated by an anti-union animus in eliminating the movie passes. The Board therefore, as is usually the case, must reach its own conclusions regarding the employer's motives. In assessing motive, the Board looks at the reasonableness of the employer's explanation for its conduct and assesses whether the employer's actions are unreasonable or unduly harsh in light of all the circumstances. In this case the employer asserts that it was complying with the collective agreement and in particular article 17.01. As noted, we accept that the employer's interpretation of article 17.01 is the preferable one, and that it was one reason for the denial of the free movie passes.

24. In reviewing the history between these parties, clearly the employer has not ever been found to have crossed the line and committed an unfair labour practice. Both parties agree that the employer has taken a tough stance with the union. Counsel for the union characterizes the employer's conduct as "relentlessly resisting" the organizing campaign. Employer counsel points out that the denial of movie passes is consistent with the previous approach taken by the employer which was not and has not been found to be anti-union. Obviously, in and of itself there is nothing illegal about the employer applying the terms and conditions of the collective agreement.

25. However, our task in this case is to determine whether the employer has established that the only reason it no longer provides free movie passes to the unionized front-of-house staff, is because it is no longer required to under the collective agreement. Or to put it another way, was the employer only motivated by a desire to assert its strict contractual rights when it took away this privilege, or were they motivated in some way by a desire to penalize the newly organized front-of house employees. Regard­less of whether we agree with the employer's interpretation of article 17.01, namely that there is nothing in the collective agreement that entitles the front-of-house employees to the movie passes, we still must examine the employer's motives in eliminating this privilege in the manner and in the circumstances in which it did.

26. Despite similar language in the collective agreement which determines the terms and conditions of employment for the projectionists, the employer nevertheless has continued the practice of giving the individual theatre managers the discretion to issue free movie passes to the projectionists. When this inconsistency was raised, counsel for the employer made an attempt to justify the distinction on economic grounds. As pointed out by counsel for the union there is no factual basis for this assertion and it is not an inference we are prepared to make. Therefore, that leaves us with the question why the unionized front-of-house staff are denied the free passes when the projectionists are not. Is it, as counsel for the union suggests, indicative of an anti-union attitude towards the front-of-house staff or, as counsel for the employer suggests, is the appropriate inference to be made by the Board that if the employer was anti-union they would have denied the passes to all of their unionized employees.

27. As was noted in the Pop Shoppe case, the Board must distinguish between conduct that is unlawful and conduct that is unfair. Clearly it is unfair to continue to provide the passes to the projectionists on a discretionary basis and not to the unionized front-of-house staff. But, is the conduct illegal? Was the employer motivated by an intention to penalize this newly unionized group of employees when it refused to continue the issuance of free movie passes, or is it truly and only motivated by the principle that "a deal is a deal" and as the union did not negotiate the continuance of the practice, the front-of-house staff no longer will receive the free passes.

28. The call in this case is a very difficult and close one to make. The circumstances in this case are quite novel. We agree with counsel for the employer that its position with regard to the free passes is a tough one and is consistent with the approach it has taken generally with regard to this bargaining unit. It is very difficult to draw the line between a decision which is motivated by a desire to be firm with the newly unionized employees, and one which is motivated by a desire to, as union counsel put it, show the front-of-house employees what happens when you join a union. If the employer had discontinued the issuance of the passes to all of its unionized staff for legitimate established business reasons, it would not have appeared that the employer was singling out the unionized front-of-house staff. We agree with counsel for the employer, that an employer is entitled to have different terms and conditions of employment for unionized and non-unionized staff and between different bargaining units of organized staff. Clearly the employer is entitled to treat different groupings of staff differently, but in this case the union, as it is entitled to do, is questioning the employer's motives for singling out and denying the free movie passes to the front-of-house staff.

29. The Board in this case did not hear any evidence. Our factual conclusions are based on an agreed statement of facts. Part of the agreed statement of facts was a letter written by employer counsel to counsel for the union indicating that in accordance with the employer's interpretation of article 17.01 of the collective agreement, it would no longer provide free movie passes to the newly unionized staff. However, neither in the letter nor anywhere else in the agreed statement of facts is there any explanation of the employer's motive in denying the passes to the front-of-house staff while it continued, in the face of similar collective agreement language, to give individual theatre managers the discretion to issue passes to the projectionists. Counsel for the employer attempted to justify the employer's conduct on economic reasons but that is not an agreed-to-fact, nor do we have any evidence to support this conclusion. We therefore have no explanation for this differential treatment of the two groups of unionized employees. It is on this point that we feel the case must turn. In the absence of any evidence or agreed upon fact which explains the employer's motive, we must conclude that the differential treatment of two groups of unionized employees with virtually the same collective agreement language, in the unique circumstances of this case, constitutes a violation of the Act.

30. The conduct of the employer in discontinuing the practice of issuing free movie passes to the newly organized front-of-house employees immediately after the signing of their first collective agreement must have been motivated, albeit in a small part, by a desire to send a message to the employees. While clearly the union made a mistake in not ensuring the continuation of the free passes by enshrining the practice in the collective agreement, we are also of the view that the employer seized the opportunity presented by this omission to send a message to the union and the employees. This motivation, and the subsequent conduct, goes beyond being tough with the union and newly organized employees and passes into the realm of anti-union conduct.

31. Accordingly, we find that the actions of the employer in this case constitute a violation of section 72 of the Act. We hereby direct the employer to cease and desist from its practice of treating the unionized front-of-house staff differently with regard to this issue of free movie passes.

32. For all of the reasons outlined, we are also of the view that the conduct of the employer in denying access to the "run throughs" to the unionized front-of-house staff at the Jackson Square Cinema in Hamilton, was also tainted by an intention to penalize the newly unionized front-of-house employees. Accordingly, we hereby direct the employer to cease and desist from its practice of denying the unionized front-of-house staff access to “run throughs" at the Jackson Square Cinema.

33. Counsel for the union has argued that the employer, in failing to raise its intention to terminate the practice of issuing the free movie passes during the negotiations, has violated section 17 of the Act and has not bargained in good faith. We are not persuaded by this argument. Clearly an employer has the obligation to disclose during bargaining any decisions which have been made which would have a serious impact on the bargaining unit. In this case, there is no evidence before us concerning when the decision to terminate the practice of issuing free movie passes was made. It may have been made after the negotiations concluded. In addition, this kind of change is not of sufficient magnitude to fall within the rubric of "serious impact on the bargaining unit". This is not the kind of decision dealt with in the Westinghouse case (supra) and subsequent decisions (see for example Union Carbide Canada Limited, [1992] OLRB Rep. May 645).

34. In the event that the parties have any difficulty implementing this award the Board will remain seized.