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February 7, 2013 Directed to: General Teamsters, Local Union No.

362 - Al Porter, McGown Johnson - Clayton Cook, Bennett Jones LLP - John R. Gilmore, Dear Santa Productions Inc. - Chad Oakes/Mike Frislev, Dennis Penney/Luke Burton/Clayton Budd - c/o Blair Chahley - J. Robert W. Blair, Directors Guild of Canada - c/o Blair Chahley - J. Robert W. Blair, Directors Guild of Canada Carol Romanow RE:
OUR VISION The fair and equitable application of Albertas collective bargaining laws.

Application for certification as bargaining agent brought by the General Teamsters, Local Union No. 362 affecting Dear Santa Productions Inc. - Board File No. CR-04459 Introduction

OUR MISSION To administer, interpret and enforce Albertas collective bargaining laws in an impartial, knowledgeable, efficient, timely and consistent way.

[1] This decision addresses the appropriateness of the bargaining unit applied for in the certification application of the General Teamsters, Local Union No. 362 (the Teamsters) affecting Dear Santa Productions Inc. (DSI). [2] The bargaining unit applied for by the Teamsters is: All drivers, transportation coordinators, wranglers, wrangler coordinators, caterers, catering staff, locations, location managers, location assistant managers, location production assistants excluding personnel covered by I.A.T.S.E., Local No. 212 and I.A.T.S.E., Local No. 669 and A.C.T.R.A. [3] In her report, the Board Officer recommended the Board find the proposed bargaining unit to be an appropriate bargaining unit subject to the following:

501, 10808 - 99 Avenue Edmonton, Alberta T5K 0G5 Tel: 780-422-5926 Fax: 780-422-0970

308, 1212 - 31 Avenue NE Calgary, Alberta T2E 7S8 Tel: 403-297-4334 Fax: 403-297-5884

1. References to wranglers, wrangler coordinators, caterers, and catering staff be deleted as there were no individuals performing those functions; 2. The term locations be deleted;

E-mail: alrbinfo@gov.ab.ca Website: www.alrb.gov.ab.ca

3. The exclusion of personnel covered by other bargaining agents be deleted as it is unnecessary. Accordingly, the Board Officer found an appropriate bargaining unit description would be: All drivers, transportation coordinators, Locations Manager, Assistant Locations Manager and Locations Production Assistants. [4] DSI objects to the proposed bargaining unit. It submits that historically, locations department members have been grouped into a different

bargaining unit than members of the transportation, animal handling and catering departments and that such location department members have historically been represented by the Directors Guild of Canada (DGC). [5] In addition to the objection filed by DSI to the proposed bargaining unit, the Board received objections from Dennis Penney, Luke Burton and Clayton Budd who are members of Directors Guild of Canada Alberta District Council (DGC-Alberta) and who, along with DSI, submit that locations department personnel have not historically been represented in the film industry by the Teamsters and that the proposed bargaining unit is contrary to established industry practice. [6] The Board also received an objection to the proposed bargaining unit from DGC-Alberta which is part of DGC which represents key creative and logistical personnel in the film and television industries. It has approximately 130 members and over 100 permitees in membership categories covering all areas of production, design and editing. DGC-Alberta also objected to the inclusion of location department personnel in the bargaining unit. [7] Finally, the Board received an objection from the Canadian Media Production Association (CMPA). CMPA is a not-for-profit organization which represents almost 400 film, television and interactive media companies across Canada. Its mandate is to promote and stimulate the Canadian production industry. Like DSI and DGC-Alberta, CMPA objects to the inclusion of locations department personnel and the proposed bargaining unit on the basis that such employees have historically been organized for labour relations purposes in bargaining units represented by DGC. [8] Shortly before the hearing into this matter, the Board received correspondence from counsel for DGC-Alberta and Messrs. Penney, Burton and Budd indicating that these parties did not intend to continue with their objection to the proposed bargaining unit description. The correspondence concludes: Given that the Employer in this case has been found to be Dear Santa Productions Inc., and given that the DGC Alberta District Council does not assert any bargaining rights in respect of that entity, our clients concerns are relatively limited. Because any work associated with Dear Santa is long since finished, this application is virtually moot in any case. If it were the case that Local 362 were attempting a partial raid (as it has done unsuccessfully in the past) that would be an entirely different matter, given the Boards policy concerning fragmentation of existing bargaining units. Should such a case arise, the DGC Alberta District Council will defend the integrity of existing voluntarily recognized bargaining units vigorously. [9] After carefully considering the evidence and submissions of the parties, a panel of the Board (Kanee, Kozielec, Moench) concludes that the proposed bargaining unit, as amended, is appropriate. Our reasons for this conclusion follow. Facts [10] The Board heard evidence from Petros Danabassis, the Production Manager and Line Supervisor for Dear Santa and from Warren Ross, National Director, Industrial Relations for CMPA.

[11] Mr. Danabassis, who has worked in the film industry since 1996, was responsible for the overall scale of the Dear Santa production, including the budget and the execution. He hired all of the below the line staff including actors, production staff, technical and support crews and independent contractors. The locations and transportation personnel were all hired under the same form of contract and paid a daily rate. [12] The location manager was one of the first staff to be hired. The location manager sat down with the director and producers three or four weeks before the shoot commenced in order to gain an understanding of the look they were striving for and to begin considering locations. He then embarked on the process of finding locations that reflected the directors and producers vision and that fell within the budget limits of the production. Various options were considered and reviewed with the director and producers before final choices were made. Access to the location was one of the factors considered. [13] Mr. Danabassis accepted as accurate the position description of the location manager contained in the Board Officers report which is excerpted from the DGC national collective agreement: Location Manager (a) The Location Manager is engaged by the Producer and searches, surveys, secures and arranges for locations for the approval of the Producer in consultation with the Director and Production Designer. (b) A Location Managers duties include the following: locate sites, whether through file search or scouting; contact property owners as an authorized functionary of the Producer; negotiate property rental and use rates between owners and the Production company; obtain necessary permission or permits for location sites and location parking from appropriate government authorities; maintain the negotiated condition and use of the location site under the rental contract or government permit; meet with the appropriate area film office or council and maintain a liaison with same during location use; meet with local business or residents associations, if necessary. In the performance of their duties they may drive others provided such driving does not interfere with the Location Managers regular duties. (c) Prepare detailed location budgets and in so doing, consult with the Producer and the Production Manager. Identify extraordinary costs and required adjustments and keep the Producer and the Production Manager informed of same. (d) Coordinate the work of the location department staff, as well as any relevant outside contractors. [14] As the title suggests, the location assistant manager assists the location manager in carrying out their responsibilities. [15] There were two location production assistants (LPAs) employed on the production of Dear Santa. The role of the LPAs is logistical. Again, Mr. Danabassis accepted as accurate the position description for LPAs contained in the Board Officers report that is excerpted from the DGC national collective agreement:

The Location Production Assistants (a) The Location PA is engaged by the Producer in consultation with the Location Manager to assist the location department. A Location PA may not work without the supervision of either the Location Manager or Assistant Location Manager except as provided for in this Agreement. Before being engaged as a Location PA, the Guild Members must have completed professional training courses included but not limited to propane certification and first aid. A Location PA must have a valid drivers license. (b) The Location PAs duty is to assist the Assistant Location Manager in the performance of the functions and duties as outlined in article 11.17. In addition and without limitation such duties include: prepared the locations department vehicle; prepared the film locations with signage and protective coverings; ensure the equipment base areas, additional make-up & hair stations, background holding areas, washrooms, greenrooms and lunch areas are prepared; maintain a clean working environment; perform crowd and traffic control except where this work is customarily performed by police officers or by security personnel of a facility at which the photography takes place and which requires security personnel under its location agreement; and distribute film notification letters and collect signatures if required by the location permit. [16] Mr. Danabassis testified that many LPAs are film school graduates who are looking to break into the business. However they learn the duties and responsibilities of the LPA position on the job. Many also work in other positions in the arts and media industries. [17] There were three drivers employed on the production of Dear Santa. They reported to the transportation coordinator. The drivers were hired a few days before the shoot began. In the days before the shoot, they readied their vehicles and picked up and delivered actors and equipment. The drivers do not move equipment individual departments are responsible for loading and unloading their equipment from the vehicles driven by the drivers. [18] Both the transportation and the locations department personnel work long hours during the shoot, which in the case of Dear Santa took 13 days. [19] The drivers require proper licences to drive their vehicles. A number of them own vehicles that are specially equipped for film productions which they lease to the production company. However that is not a requirement of the position. When not working on a film production the drivers generally drive vehicles in other industries. [20] Neither locations personnel nor transportation personnel are involved in the postproduction process. [21] In Mr. Danabassis experience, locations personnel have always been represented by DGC-Alberta on unionized productions in Alberta. According to him, DGC typically represents persons working in the creative department of the production. During cross-examination, he agreed that production designer is a shared position between DGC and IATSE. On some productions they are represented by DGC and on others, IATSE. [22] Warren Ross is responsible for the bargaining and administration of collective agreements on behalf of film and television producers who sign voluntary recognition agreements with the unions that represent employees in those industries.

He is unaware of any instance in Alberta in which locations personnel have been represented by a union other than DGC-Alberta. Producers have become accustomed to the locations personnel being represented by DGC-Alberta. [23] He explained that industrial stability is critical to the success of the film and television industries in Canada. Financing in these industries is often difficult to obtain. Financiers are unlikely to become involved if there is a concern that a jurisdictional dispute will arise or there will be any industrial instability. It would cause confusion in the industry if the Teamsters were certified to represent locations personnel for this production. [24] During cross-examination, Mr. Ross acknowledged that some locations personnel working for major production companies in California are represented by the Teamsters Union. Decision [25] In arriving at her conclusion, the Board Officer relied upon Board Information Bulletin #9, which provides in part: II. GENERAL PRINCIPLES

An appropriate bargaining unit is a grouping of employees that makes labour relations sense. See: Re: City of Edmonton Bargaining Units [1993] Alta.L.R.B.R. 362; General Teamsters 362 v. Southland Transportation [1997] Alta.L.R.B.R. 443; Kidd Creek Mines Ltd. [1984] OLRB Rep. March 481; Island Medical Laboratories Ltd. (1993) 19 CLRBR (2d) 161. The Board considers the following factors in deciding whether a unit is appropriate. None of these factors alone dictate a result. The Board weighs these and other competing considerations in each case. As well, the Board may use these factors differently depending upon the question before it: certification, successorship or reconsideration. See: CUPE 3203 v. Horizon School [1995] Alta. L.R.B.R. 439; South Peace Health Unit #20 SNAA v. Mistahia Regional Health Authority et al. [1996] Alta. L.R.B.R. 362; East Central Regional Health Authority v. AUPE et al. [1996] Alta.L.R.B.R. 327; AUPE v. Good Samaritan Society [1997] Alta.L.R.B.R. 88; and UFCW 401 v. Freson Market [1995] Alta.L.R.B.R. 491. Community of Interest: Do the employees in the proposed unit have common interests? Do they have common skills and working conditions? Do they do similar work? Do they work together, or in a close functional relationship to one another? Will they have conflicting goals in collective bargaining? This factor favours smaller bargaining units. The greater the community of interest between employees in the unit, the more likely it is that the Board will find the unit to be appropriate. Bargaining History: Is there a history of collective bargaining with the employer? Does the employer already bargain with several bargaining agents?

Would the application "carve out" a group of employees from an existing, viable bargaining relationship? The Board is more likely to approve a small bargaining unit where the employer already operates with several units and several bargaining agents. On the other hand, the Board will not certify a unit that "carves out" a small group of employees from an existing viable bargaining unit unless there are compelling labour relations reasons to do so. Nature of Employer's Organization: Where an employer operates in several locations, the Board will consider the degree to which the operations are integrated or interdependent. If employees are highly mobile between departments or locations of the employer, the Board is less likely to find a departmental or localized unit appropriate. See: CSU 52 et al. v. City of Edmonton. [1993] Alta.L.R.B.R. 362. Viable Bargaining Structures: Larger bargaining units tend to promote more effective bargaining and representation by the trade union than small units. The larger the bargaining unit proposed, the more likely it is that the Board will find it appropriate, so long as the employees share a community of interest. Avoidance of Fragmentation: Multiple bargaining units within one employer's operations are more difficult and costly for an employer to administer. They also tend to restrict the job mobility of employees. The Board may not find a bargaining unit to be appropriate if it would unduly fragment the employer's bargaining structure. Agreement of the Parties: If the trade union and employer agree that a proposed unit is appropriate, the Board may give the agreement some weight. The Board will, however, reject an agreed unit if it is not otherwise an appropriate unit. [26] The Information Bulletin goes on to review a number of policies the Board has developed for determining appropriate bargaining units in various specialized industries including manufacturing, medical and health laboratories, and utilities. The Board has not developed policies specific to the film and television industry. [27] DSI, which bears the onus of convincing the Board that the proposed bargaining unit is inappropriate, focuses its submissions on industry practice. It argues that location personnel have historically been placed in the bargaining unit represented by DGC-Alberta. It worries that there will be industrial instability if the Board sanctions a bargaining unit represented by the Teamsters that includes location personnel. [28] The Board has little experience with certification applications in this industry. The business model of film making has made seeking representation through certification impractical and as a result the parties have relied upon voluntary recognition agreements to establish relationships. The British Columbia Industrial Relations Council noted the unique characteristics of the industry in Teamsters Local Union 155, et al. v. Golden Spurs Productions, Limited, BCIRC No. C145/90 (July 20, 1990):

The Teamsters and IATSE agree that the film industry does not lend itself to organizing through the certification process. A typical film shoot is of short duration, even shorter than many construction projects: about six weeks. It is simply impractical to wait until employees are working on the project, sign them up or present their membership cards as evidence of support to a labour relations tribunal, obtain certification, and then attempt to negotiate a collective agreement for the employees. A film production company and its employees have one focus during a film shoot, mainly, making the film; it would be impractical and counterproductive for them to consider a certification proceeding as well. Moreover, even if a certification could be granted during the six week shoot, Teamsters and IATSE witnesses testified that it would be impractical to negotiate a collective agreement in the traditional way during that time. The prospect of a work stoppage to obtain desired employment terms and conditions is just not acceptable in the film industry because if that happened, the film would not be made here: the producer would pack up and leave for a more convenient location elsewhere in the world. Moreover, British Columbia's reputation as a film location would sink, hurting Teamster and IATSE members in the long run. Therefore, voluntary recognition agreements are entered into with a film producer before any employees are actually working on the production. A producer comes to the province, scouts locations, talks to the unions and negotiations begin in that way. [29] The shooting of Dear Santa began on March 28, 2011 and was complete on April 13, 2011. No drivers or locations personnel have been employed since its completion. As a single production company, DSI is unlikely to employ drivers or locations personnel in the future. Accordingly, there is no risk of industrial instability at DSI. Rather, DSI and CMPA are worried that the stability the parties in the industry have created through a system of nationally negotiated collective agreements and voluntary recognition agreements with production companies will be disturbed. This concern was concisely articulated by the Saskatchewan Labour Relations in Inconvenience Productions Inc. (Re), [2001] S.L.R.B.D. No. 24 at paragraph 116: 116 The issue of the appropriateness of the bargaining units sought by Teamsters 395 and IATSE 295 is delicate and has ramifications beyond the immediate interests of the parties that may affect the future configuration of the organization of labour in the industry. Given the process of film production and its customary practice, the general agreement of the stakeholders, and the expectations of employers and workers in the industry, it would be destabilizing to alter the broad craft categories described above. The self-organization of the industry has operated with relative stability with the broad consensus of the parties involved. Accepting that a bargaining unit comprising technicians is appropriate we must decide whether the smaller unit proposed by Teamsters 395 is also an appropriate unit and for labour relations reasons should be certified. [30] In Inconvenience, the Saskatchewan Board found a bargaining unit of transportation department employees represented by the Teamsters was appropriate, despite a history in the film industry in that province of transportation employees being represented by IATSE, in a bargaining unit comprised of all film technicians. In fact, the employer had already entered into a voluntary recognition agreement with IATSE covering film technicians including transportation department positions before the Teamsters filed its certification application. However in

Saskatchewan, the voluntary recognition agreement did not create a bar to the certification application of the Teamsters. [31] Unlike the situation in Inconvenience, we are not faced with a contest between two unions seeking to represent the same employees. There is no live jurisdictional dispute between DGC-Alberta and the Teamsters over the locations personnel. DGC-Alberta chose not to seek representation of the locations personnel or any other positions it typically represents, employed in the production of Dear Santa. [32] The employer and CMPA did not strenuously argue that, but for the industry history, a bargaining unit including transportation and location personnel would be inappropriate. While the location managers duties include a creative element, the vast majority of the duties of locations personnel can be characterized as logistical, including some driving. Although not identical, the working hours and conditions of transportation and location personnel are similar. The evidence about promotional opportunities was insufficient for us to draw any conclusions. Accordingly we conclude that transportation and location personnel have a sufficient community of interest. [33] It is now almost two years since the application for certification was made and the film shoot was complete. It is likely that our decision will have no practical impact on the parties. Nonetheless, we were urged by the parties to rule on the appropriateness of the bargaining unit and so we have approached our decision by considering the question as of the date of the application, which was the first day of the 13-day shoot. At that point, DGC-Alberta had not established a relationship with DSI and had in fact decided not to pursue a relationship with DSI. Given the size of the project and perhaps other factors, the established industrial practice of national agreements and voluntary recognition was not being applied to the production of Dear Santa. If not represented by the Teamsters, the location personnel would be unrepresented. In those circumstances, we agree with the Board Officer that the proposed bargaining unit (as amended) is appropriate. We are not persuaded that the general industrial practice is a sufficient reason to deny this certification application. [34] By this decision, we are not concluding that a bargaining unit that includes the positions traditionally represented by DGC-Alberta, including location personnel is inappropriate nor are we intending to interfere with the agreements the parties in the industry concluded in the past or may enter into in the future. Conclusion [35] Having found that the bargaining unit applied for, as amended, is appropriate for collective bargaining, we direct the ballots cast in the representational vote conducted by mail in April 2011 be counted. The Board Officer will contact the parties to make the appropriate arrangements. Lyle S.R. Kanee, Vice-Chair