International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 58, Toronto v. Theatrecorp Ltd., 1992 CanLII 6762

[1992] OLRB Rep. March 388

0626-90-R; 1678-90-R International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 58, Toronto, Applicant v. Theatrecorp Ltd., and WGC Facility Management Corpo­ration, Respondents; International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 58, Toronto, Applicant v. Theatrecorp Ltd., WGC Facility Management Corporation and Theatremark Ltd., Respondents

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members J. A. Rundle and C. McDonald.

APPEARANCES: Thomas W. G. Pratt for the applicant; John S. Kelly for the respondents.

DECISION OF LOUISA M. DAVIE, VICE-CHAIR, AND BOARD MEMBER J. A. RUNDLE; March 13, 1992

1. The style of cause is hereby amended to reflect the correct name of the respondent: "WGC Facility Management Corporation".

2. Board File No. 1678-90-R is an application filed pursuant to section 1(4) of the Labour Relations Act ("the Act") in which the applicant ("IATSE" or "the union") seeks a declaration that the respondents constitute a single employer for purposes of the Act. Board File No. 0626-90-R is an application for certification in which IATSE seeks to be certified as bargaining agent of certain employees of the respondents. For ease of reference those employees will be referred to throughout as stagehands as IATSE seeks to represent only its "standard" craft unit of stagehands. The applications are related and the parties agreed that the matters be heard together. It was agreed that the evidence heard by the Board during the course of the hearing and contained in a report prepared by the Labour Relations Officer appointed to inquire into the employment status of certain persons be applied and considered by the Board in its decision in both these applica­tions.

3. A number of matters were agreed upon by the parties. The primary issue in dispute which is central to both applications revolves around the question "who is the employer of the stagehands?" We note at the outset that the position of the respondents that the stagehands were not "employees" but were independent contractors was not pursued in the respondents' final sub­missions to the Board.

4. It is not disputed that WOC Facility Management Corporation ("WGC"), Theatrecorp Ltd. ("Theatrecorp") and Theatremark Ltd. ("Theatremark") are under common control or direc­tion. The respondents submit however that they do not carry on associated or related activities or businesses and assert instead that they carry on businesses separately but in a related enterprise.

FACTS

5. The Ontario Heritage Foundation ("O.H.F.") owns the premises at 189 Yonge Street, Toronto, Ontario, known as the Elgin and Winter Garden Theatre complex ("the complex"). The building is an historical site which contains two theatres called respectively the Elgin Theatre and the Winter Garden Theatre. The Elgin Theatre is a 1005 seat facility while the Winter Garden Theatre has 991 seats.

6. By an agreement in writing dated November 21, 1988 the O.H.F. granted to WGC a licence to use and to authorize other persons to use the complex to present theatrical productions and concerts; motion picture films; the operation of dining lounges and the like; the exhibition of items of interest in the areas of history, architecture etc.; non-profit cultural and community events; meetings, seminars, classes and industrial shows and reception; and related administrative functions. For ease of reference this wide variety of uses will hereinafter be referred to as a "theat­rical production".

7. WGC operates the complex. In so doing it employs a variety of people including bar­tenders, office personnel, maintenance personnel, box office personnel, theatre ushers etc. WGC has never itself engaged in producing or presenting a theatrical production. Rather WGC grants licences or leases to other entities to use the complex for producing or presenting theatrical pro­ductions. Two of the entities to whom WGC has leased the complex are Theatrecorp and Theatre-mark. The majority of time however WGC licences the premises to third parties with whom it does not share common direction or control.

8. Both Theatremark and Theatrecorp are entities which on occasion produce and/or present theatrical productions. A "presentation" of a theatrical production is a circumstance where Theatremark or Theatrecorp "buys" a complete theatrical production (including for example director, stage manager, company manager, actors etc.) and presents the production at a particular venue such as the complex. Where Theatremark or Theatrecorp "produces" a theatrical produc­tion it is the originator of the production at that venue and as such is responsible for hiring the actors, directors, stage managers etc. necessary to put on the production.

9. In addition to its business as producer or presenter of theatrical productions Theatre-corp also provides "technical services" to WGC. By an agreement in writing dated April 12th, 1990 WGC retained the services of Theatrecorp to "provide and/or co-ordinate all technical ser­vices (as commonly understood within the theatrical industry) for the purpose of protecting all areas from persons unfamiliar with the complex". In exchange for a monthly payment of $1,000.00 Theatrecorp provides to WGC the following services:

1. All production and technical services for the COMPLEX as they relate to the requirements for productions and/or presentations taking place within the COMPLEX

2. All arranging or coordination of the providing of labour required to per­form the functions as outlined in #1 above

3. All payroll functions (including but not limited to payment, processing, workers' compensation insurance, deductions, benefits etc.) required to remunerate any and all labour retained by THEATRECORP to perform any of its obligations under this agreement

4. The services of Miss Sandra Robinson as liaison and coordinator between

WGC and THEATRECORP

The agreement further states that WGC will:

1. Reimburse THEATRECORP for any and all disbursements made on

behalf of WGC in the performance of the functions outlined above

2. Withhold a sufficient amount of funds from box office receipts sold on behalf of Licensees of the COMPLEX in order to reimburse THEATRE-CORP for costs paid on behalf of such Licensees

3. Provide THEATRECORP with office space, a telephone and such other office equipment as may be required to carry out its tasks.

10. The Ms. Robinson referred to in the agreement between Theatrecorp and WGC charac­terizes herself as an independent contractor. She has entered into a written contract dated Decem­ber 1, 1989 with Theatrecorp to provide the following services:

1. Production management services to THEATRECORP for any and all presentations produced and/or presented by THEATRECORP within the COMPLEX

2. Production management coordination and/or assistance to Licensees within the COMPLEX for any and all presentations produced and/or pre­sented by such Licensees

3. Supervision and/or coordination of all technical services within the COM­PLEX in order to protect the COMPLEX from unauthorized persons per­forming any technical services within the COMPLEX

Ms. Robinson invoices Theatrecorp and is paid a weekly amount.

11. It is helpful to examine Ms. Robinson's various roles and duties in order to understand the relationship amongst the respondents and their relationship with third party users at the complex.

12. Where a third party user has licensed the complex from WGC to a producer presenting a theatrical production, Ms. Robinson meets with representatives of the third party to review with the licensee their technical requirements for the theatrical production. She assists and advises the licensee in ascertaining those technical requirements~ advises the licensee about the equipment available for use at the complex, advises about any restrictions in the use of that equipment or the complex, and ultimately assists in preparing the licensing agreement and appropriate documenta­tion entered into between WGC as licensor and the licensee.

13. Where Theatremark or Theatrecorp produces or presents a theatrical production at the complex, it enters into a standard form licensing agreement with WGC. It is then the licensee of the complex. In that instance Ms. Robinson is responsible for making all arrangements relating to the technical requirements of the production. She arranges for any contracts for services relating to those technical requirements, and directs and supervises the persons who provide those services including the stagehands whom IATSE traditionally represents in collective bargaining.

14. As the agreement between Theatrecorp and WGC indicates, Theatrecorp also performs certain payroll functions. These payroll functions are provided by Theatrecorp to licensees of the complex. The reasons for the provision of this service are twofold. First, the service is provided to assist licensees of the complex. Licensees of the complex are generally itinerant. The licensee uses the facility for a relatively short period of time to produce or present the theatrical production and then moves on. Other licensees are small and/or non-profit organizations. As a result many of the users of the complex do not have banking and other accounting capabilities in Toronto which the licensee can draw upon while engaged in a theatrical production at the complex. Secondly, and of equal importance however is the fact that payroll services are provided to licensees of the complex at the request of IATSE. In this instance Mr. Fuller, the president of IATSE Local 58 requested the principals of WGC, Theatremark and Theatrecorp that payroll services be provided to licen­sees of the complex. Given the many and varied licensees who use the facility, IATSE does not want to deal with or attempt to recover salary and benefits from individual itinerant producers or presenters of theatrical productions when it sends its members from the hiring hall to work at the complex. Rather IATSE has insisted that the complex be responsible for paying the stagehands and performing the role of paymaster of wages and benefits. In this instance that responsibility is borne by Theatrecorp.

15. Payroll services such as the one provided by Theatrecorp to licensees of the complex are common in the industry for these same reasons. The venue at which a theatrical production is pre­sented or produced typically provides payroll services to licensees. In this instance that industry practice could result for example in persons engaged in a Theatremark produced theatrical produc­tion at the Elgin Theatre receiving cheques from Theatrecorp, while persons engaged in a Theatre-mark produced theatrical production at Massey Hall, the O'Keefe Centre or the Royal Alexandra Theatre would receive their cheque from the appropriate entity which provides payroll services at those venues. Many producers or presenters of theatrical productions will not lease facilities unless payroll services of this nature are provided for in the licence agreement with the owner/operators of the theatrical complex.

16. The provision of the payroll service is referred to and agreed upon in the licensing agreement between WGC as licensor and the licensees (including Theatremark) who make use of the complex. The system used is relatively simple. The number of hours worked by persons employed in the theatrical production is entered on sheets and sent off to a computer payroll ser­vice (in this case operated by the Toronto Dominion Bank). Cheques are issued by Theatrecorp. Deductions for CPP, Income Tax etc. are made from the cheques. An invoice representing the total amount of the earnings and benefits paid on behalf of IATSE members is sent by Theatrecorp to the licensee. The invoice will specify the amount of money withheld by WGC from the box office receipts. WGC pays the box office receipts it has withheld to Theatrecorp. Any balance out­standing after receipt of such box office funds are recovered directly from the licensee by Theatre­corp. Theatrecorp pays to IATSE the amount due for health and other benefits.

17. We note that since WGC has held the exclusive license to the complex as a rule licen­sees using the complex have used persons sent from the IATSE hiring hall to perform the stage­hand functions associated with their use of the complex. The exceptions to this rule have been rare and the stagehands working at the complex are typically IATSE members. Pursuant to what the parties agreed was a "without prejudice agreement" with IATSE a tariff of rates to be paid to IATSE members working at the complex was fixed. The Board heard no evidence about the terms of that agreement or its negotiations.

18. Having outlined in general terms the businesses and activities of the respondent and Ms. Robinson we turn now to examine the specific facts and circumstances applicable to these applications.

19. IATSE filed this application for certification on June 25th, 1990. The application pursu­ant to section 1(4) of the Act was filed on September 27th, 1990. During the months of June and July a number of theatrical productions and events each of which required the use of stagehands took place at the complex. In abbreviated form these included:

(a) the Renaissance Theatre Company production of two theatrical pro­ductions entitled "A Mid-Summer Nights Dream" and "King Lear" (this theatrical production was "presented" by Theatremark);

(b) a CTV sales presentation;

(c) a photography session by the O.H.F. requiring the set up to specifi­cations of the Elgin and Winter Garden Theatres by stagehands;

(d) the Steven Wright Concert/HBO taping;

(e) a theatrical production entitled "Love Letters" (presented by Thea­tremark);

(f) the Dora Mayor Moore Awards (presented by the Performing Arts Information Service); and

(g) the DuMaurier jazz festival.

20. On June 25th, 1990 the date on which the certification application was filed the complex was used for a theatrical production entitled "The Dora Mayor Moore Awards" (the Doras). The Doras were presented and produced by the Performing Arts Information Service ("PAlS") an organization affiliated with the Toronto Theatre Alliance. It is a non-profit organization whose pri­mary objective is to stimulate awareness in theatrical activities in the Toronto area. One way PAlS achieves this is through the presentation of the Doras. The Doras is a yearly celebratory evening of the theatrical community and includes the presentations of awards with respect to theatrical activi­ties in Toronto in the preceding year. In the past the Doras have been presented at the complex, the Royal Alexandra Theatre, and the St. Lawrence Centre for the Arts.

21. On June 18th, 1990 PAlS entered into a standard licensing agreement with WGC for the use of the complex on June 25th, 1990. The agreement specifies that the licensee PAlS may use specified parts of the complex for "take-in" Friday, June 22nd, 1990 from 8:00 a.m. to 11:00 p.m., rehearsals from 8:00 a.m. to 5:00 p.m. on Monday, June 25th, 1990, the performance itself com­mencing at 8:00 p.m. on Monday, June 25th, 1990, and the "take-out" on Tuesday, June 26th, 1990 from 8:00 a.m. to 12:00 p.m. The term "take-in" refers to the set up of the necessary props, scenery, lighting equipment, audio equipment etc. prior to the show. Conversely the term "take­out" refers to the dismantling of those items.

22. The producer of the Doras was Ms. Catherine McKeehan. Ms. McKeehan is an independent theatrical producer who has worked within the theatre industry for more than thirty years. She had been engaged by PAlS to produce this event. Ms. McKeehan had been involved in the presentation of the Doras in past years. Before producing the show in June, 1990, Ms. McKeehan discussed the nature of the show and its technical requirements with Ms. Robinson.

23. Prior to the 1990 Doras Ms. McKeehan met with Mr. Fuller in the same manner she had done in the past years. Ms. McKeehan advised Mr. Fuller the awards were coming up and that IATSE would, as usual, participate in the event. Ms. McKeehan specifically indicated to Mr. Fuller that IATSE members would be used on the show. There apparently had been some sugges­tion that IATSE union members would not be working the show. Having advised Mr. Fuller of the use of IATSE members she requested any consideration that could be given in light of the nature of the event.

24. There was some discussion between Mr. Fuller and Ms. McKeehan as to the possibility of using the lighting and sound equipment of the theatrical production scheduled for the complex at around the same time as the Doras. Ms. McKeehan questioned Mr. Fuller as to whether the Doras would have a separate IATSE crew or whether the Doras would/could use the same stage­hands working the other theatrical production.

25. Ms. McKeehan did not specifically discuss with Mr. Fuller the rates of pay for IATSE members. She was aware of the rates paid to IATSE members who worked at the complex. Her past experience with Mr. Fuller had indicated that those rates were not negotiable - not even for the Doras. Save for the schedule of hours Ms. McKeehan did not discuss any other working condi­tions with Mr. Fuller as she "wouldn't have thought it necessary". Ms. McKeehan did not discuss with Mr. Fuller the number of persons required for the show leaving those matters to Mr. McKay the production manager. She did discuss with Mr. Fuller IATSE's monetary contribution to the Doras and its sponsorship of an award. Ms. McKeehan also discussed a separate contribution to be made by Canadian Stage and Projects Limited, a company owned by Mr. Fuller which rents light­ing and equipment to various theatres.

26. Ms. McKeehan testified that the stagehands who worked on the Doras were not paid directly by the PAlS in 1990 or in any of the preceding years. Rather payment to the stagehands had always gone through "the management of the theatre" via the payroll service of the various theatrical venues at which the Doras had been produced. Similarly in 1990 the Doras used Theatre-corp's payroll services. It is evident that had a payroll service not been available to PAlS a differ­ent venue for the Doras would have been chosen.

27. The production manager of the Doras was Kent McKay. Mr. McKay is regularly employed as the production manager for Ainsworth Electric at the Sky Dome in Toronto. As pro­duction manager of the Doras it was Mr. McKay's responsibility to use the drawings or plans of the designers (including for example the lighting and set designs) and transform those designs onto the stage. He therefore worked and has always worked closely with stagehands and IATSE members from the union's hiring hall.

28. Prior to 1990 Doras Mr. McKay consulted with Ms. Robinson about the size of the crew required for the Doras. Mr. McKay testified "... I ultimately decided (the size of the crew) based on that consultation, the plans and what I knew was required". Having determined the size of the crew Mr. McKay provided Ms. Robinson with a list detailing among other items the number and classification of stagehands required for the show, and the hours of work.

29. Mr. McKay consulted with Ms. Robinson because "from a practical point of view I see it as Sandy's (Robinson) venue". Mr. McKay considered Ms. Robinson to be more familiar with the "idiosyncrasies" of the theatre complex including the ease or difficulty of rigging certain light­ing designs, scenery etc. As an example, Mr. McKay testified that Ms. Robinson advised that the theatre's fly system (the space above the stage for storing and operating scenery, lights, etc.) required two persons. Ms. Robinson was there to help and assist with such technical services and Mr. McKay took full advantage of her knowledge and expertise in this area.

30. Ms. Robinson and Mr. McKay discussed who would place the call to IATSE's hiring hall requesting that members be sent to the complex. It was agreed that Ms. Robinson would place the call. Ms. Robinson testified that generally after the users or licensees of the complex have given her the required information she contacts the business agent of the union to advise them of the call for members. Mr. McKay testified that he considered having Ms. Robinson make the call to the union to be a matter of "professional courtesy" as the complex was "her house".

31. On June 22nd Mr. McKay met with Ms. Robinson at the complex. Ms. Robinson showed Mr. McKay around the facility and introduced him to the department heads who had been sent out from the hiring hall. Some explanations and information about the use of the facility and its physical limitations was provided by Ms. Robinson. Thereafter she left and had no further con­tact with the stagehands who worked on the Doras.

32. Neither Ms. Robinson nor any employee of WGC, Theatrecorp or Theatremark gave any instruction, or direction to the stagehands who worked at the complex on the production and presentation of the Doras. Neither Ms. Robinson nor any employee of any of the respondents supervised the work, disciplined employees nor determined when employees were no longer required. All direction and supervision of stagehands working on the Doras was done by represen­tatives of PAlS and in particular Mr. McKay.

33. After the presentation of the Doras and the take-out Theatrecorp paid the stagehands who worked on the show. The total amount of wages and benefits incurred for stagehand labour was back charged to PAlS pursuant to the terms of its license with WGC and WGC's agreement with Theatrecorp. A portion of the total owing was paid to Theatrecorp by WGC from the box office receipts for the performance. Thereafter PAlS paid Theatrecorp directly the outstanding balance owed.

34. It is relevant to compare and contrast the terms and conditions of employment of the stagehands who worked on the Doras with those of the stagehands who worked on other theatrical performances (including those presented or produced by Theatremark) at the complex.

35. The method by which stagehands arrived at the complex to work on the Doras was the same as in the past. Ms. Robinson called the union hiring hall requesting that persons attend at the complex on a particular day. If Theatrecorp or Theatremark is producing or presenting the theatri­cal production Ms. Robinson makes the call requesting members on behalf of each of those compa­nies. Where Theatrecorp or Theatremark is producing or presenting the theatrical production it is Ms. Robinson who determines the number of IATSE members required and their hours of work. In so doing she may on occasion consult with others employed or contractually engaged in the the­atrical production.

36. If a third party licensee is producing or presenting the theatrical production Ms. Robin­son places the call to the hall on behalf of such third party licensee. In that instance however Ms. Robinson acts merely as a conduit of information from the licensee to IATSE. On the evidence before us we have concluded that in these circumstances IATSE knows that Ms. Robinson's role is limited to that of a conduit. For example on May 24, 1990, at the request of IATSE Ms. Robinson provided the union with a schedule of events at the complex from May 30th to June 30th, 1990.

The schedule states it "is based on information currently available from the licensees. It is subject to change/addition as more information becomes available.". The schedule further states what the licensees' estimates are for their respective productions. Thus for example a reference to the OHF photography session states "R. Smerdon to supervise for O.H.F. - estimates 4 men for 5 hours". The schedule Ms. Robinson sent to IATSE has attached to it the production schedule prepared by CTV with respect to its sales presentation and states "see their scheduled attached. Their Produc­tion Manager has advised that she will be bringing me a revised version ... I will fax to you when I have it.". Thus where a third party licensee is using the complex Ms. Robinson is merely a conduit of the decisions made by the licensee (perhaps after consultation with Ms. Robinson) about the number of IATSE members required and their hours of work.

37. Where Theatrecorp or Theatremark produces a theatrical production it is Ms. Robinson who supervises and directs the stagehands. Where Theatrecorp or Theatremark presents the theat­rical production it is Ms. Robinson and/or any other technical personnel engaged by the Corpora­tion for that production (i.e. a stage manager who "comes with the show") who supervises and directs stagehands. On the other hand where a third party licensee produces or presents a theatri­cal production at the complex, the technical personnel of the licensee directs and supervises the stagehands. In this latter instance Ms. Robinson's role is limited to introducing such technical per­sonnel to the "heads" of the departments ("heads" are generally designated by the union) and where necessary ensuring that the physical integrity of the complex is not compromised by the licensee.

38. In fact the stagehands require little supervision. As skilled qualified and "professional" members of their craft the members are generally merely directed to the type of work required to be performed. In addition, although IATSE members may be dispatched by the hall to a number of different theatrical complexes within the local's jurisdiction throughout the year, those members who are regularly or frequently dispatched to a particular location develop a pride about "their house". As skilled technicians who regularly work at a particular venue on many different produc­tions they know by experience and training generally what needs to be done. Where Theatrecorp or Theatremark is the licensee of the complex however Ms. Robinson directs the stagehands to the specific type of work required or what specifically needs to be done. Where another licensee uses the complex it is the representative of such licensee who directs the stagehands about what specifi­cally needs to be done or the specific work required.

39. Some of the "traditional" aspects of the employer/employee relationship such as the appointment of "lead hands" or "working supervisors" and the imposition of discipline are not present when IATSE members are engaged. This is so whether WOC licenses the complex to a third party licensee or to one of the other respondents. Thus for example it is generally the union which determines who will be the department head(s) during a theatrical production, not the pro­ducer or presenter of the production. Similarly matters of discipline of employees are generally dealt with internally by the union through the head or union steward on site. The producer or pre­senters role in disciplining stagehands appears to be limited to informing IATSE, the department head and/or the steward of any problem.

40. All time sheets for stagehands working at the complex are provided to Ms. Robinson by the department heads regardless of the identity of the licensee of the complex. Ms. Robinson checks the time sheets against the information and schedule she has about the number of stage­hands and their hours of work required for the theatrical production. Where a third party licensee is the producer or presenter of the theatrical production, and there is a discrepancy between the hours on the time sheets and the information provided to Ms. Robinson about the hours to be worked, Ms. Robinson investigates the discrepancy with the licensee and the head of the crew involved. Ultimately Ms. Robinson forwards the time sheets to WGC.

41. Pursuant to the payroll services of Theatrecorp the stagehands receive a single cheque from Theatrecorp for all work done at the complex in any particular week. This notwithstanding the fact that Theatrecorp may back charge one or more licensees of the complex for the monies paid to the stagehands. Thus on the application date a portion of wages and benefits owing to W. Culley was back charged to Theatremark, the company which presented the "Renaissance Thea­tre" theatrical production at the Elgin Theatre in June 1990 for the completion of the take-out of that production. The remainder was back charged to the PAlS for work on the Doras. Similarly, of the 26 !ATSE members at the complex on June 22nd the day of the Dora take-in, the bill for wages and benefits worked by seventeen of these persons was back charged by Theatrecorp to the PAlS for the Doras. The bill for wages and benefits of the other nine persons was back charged by Theatrecorp to DuMaurier Limited Downtown Jazz, a licensee which had entered into the stan­dard licensing agreement with WGC to present a jazz festival performance on June 22nd, 1990. On June 26th, the day of the take-out 22 IATSE members worked at the complex. The wages and ben­efits of eight of these persons was back charged by Theatrecorp to PAlS for the take-out of the Doras. The wages and benefits paid to the other fourteen persons were back charged by Theatre-corp to Theatremark for the take-out of the Renaissance Theatre. Stagehands however receive one cheque from Theatrecorp from which all standard deductions for income tax, CPP etc. are made. At the end of the year T4 tax statements are issued by Theatrecorp to stagehands who have worked at the complex during the year.

42. Health and pension benefits for the stagehands are provided under the auspices of the union. Theatrecorp remits a percentage of the total funds paid to the stagehands to the union hir­ing hall for the provision of these benefits. These are also back charged to the licensee of the com­plex.

43. It would appear that the stagehands' view the venue at which they work as their employer. Thus in this instance when asked for whom they worked the member answered "the Elgin Theatre" or "the Elgin Winter Garden Theatre". Similarly, when asked about previous employment the stagehands indicated that they worked for Massey Hall, the O'Keefe Centre, the Royal Alexandra Theatre etc.

44. The stagehands are aware that they are paid pursuant to a payroll service and that ulti­mately the money for their wages and benefits comes from the producer or presenter of the theatri­cal production.

THE SINGLE EMPLOYER DECLARATION

45. There are three conditions which must exist before a common employer declaration can be made pursuant to the Board's authority under section 1(4) of the Act. These are:

(a) there must be more than one corporation, firm, individual associa­tion or syndicate involved;

(b) these entities must be engaged in associated or related businesses or activities, whether or not simultaneously; and

(c) these entities must be under common control or direction.

Even if these three conditions are present, the Board's authority to grant a common employer dec­laration is discretionary.

46. In this instance it is agreed that the three corporate respondents are under common direction and control. The respondents submit that they do not carry on associated or related activ­ities or businesses. It is further argued that at the relevant time none of the respondents either alone or as a "single" employer pursuant to section 1(4) of the Act was the employer of the employees whom IATSE seeks to represent. Accordingly, the respondents submit that the Board exercise its discretion under section 1(4) and refuse to grant a single employer declaration.

47. We find that the three conditions precedent to the Board's authority to grant a single employer declaration exist. We find that the respondents are engaged in associated or related busi­nesses or activities.

48. WOC's business is to run, operate and manage the theatre complex. That theatre com­plex is under the complete operational control of WGC. Pursuant to its licensing agreement with the O.H.F., WGC has certain duties, obligations and rights with respect to that complex. To assist it in performing its business, WGC has entered into a technical services contract with Theatrecorp. Payroll services to licensees of WGC are provided pursuant to that technical services contract. In order to provide the technical services Theatrecorp has in turn entered into contractual relations with Sandra Robinson. By reason of the contractual terms between WGC and Theatrecorp Ms. Robinson is to act as liaison and co-ordinator between the two entities. Through these various con­tractual relationships Theatrecorp is functionally integrated with the business activities of WGC. For its part, Theatremark is the corporate entity which produces or presents theatrical productions within the complex operated and managed by WGC. In the circumstances of this case Ms. Robinson's role and status as production supervisor or production manager of such productions is the link which in turn binds Theatremark to the other respondents and their contractual relations.

49. Mr. Rubinstein testified that if Ms. Robinson's services through Theatrecorp were not available WGC would not necessarily have provided the services she provides to the third party licensees. It was a "business choice we made to have [Ms. Robinson] on staff through Theatre­corp". As mere licensor of the complex WGC was not in the business of providing technical ser­vices to licensees.

50. The fact remains however that the "business choice" was made. As licensor of the com­plex WGC has chosen to provide certain theatre related services including box office services, bar services etc. It has also chosen to provide technical and production services and payroll services to its licensees through the auspices of Theatrecorp. Conversely WGC makes provisions with its licensee that the box office receipts it collects on behalf of the licensee can be used to pay any charges owing to Theatrecorp for expenses which Theatrecorp has incurred in the supply and co­ordination of technical services to the stage areas of the theatrical complex.

51. In determining whether to exercise our discretion, we find it useful to refer to the oft-

quoted decision of the Board in Industrial-Mine Installations Limited, [1972] OLRB Rep. Dec.

1029 where the Board addressed the purpose of section 1(4) and stated at paragraphs 9 to 13:

9. Section 1(4) is obviously contemplated to cure the mischief [sic] that results from being unable to properly define and tie down the employment relationship. In many situations where companies have a close relationship an employee may be shifted from one company to another so that his employment relationship, at any given period, is difficult to define in terms of one employer. So too, the number of employees employed by one of those companies at any given time may be impossible to ascertain.

10. Prior to the enactment of section 1(4), where such situations existed, it was difficult to define the employment relationship and to determine the proper employer for certain purposes under the Act. For example, in certification proceedings it was necessary to determine the proper employer in order to determine whether the union had sufficient membership among the employees to be certified.

11. Also, in some situations where a union had been granted bargaining rights for the employees of one employer the employees could be shifted to another associated or related employer with the result that the bargaining rights which had been earned by the trade union for the employees was lost.

12. So too, in the case where associated or related employers joined in a common enterprise and used one work force, which was shifted and transferred from time to time the certification with respect to one employer only was, in effect, a certification of a segment of the total enterprise, and could seriously impair the totality of the business operations by inhibiting the shifting of employees between union and non-union segments of the enterprise. It was also possible in situ­ations where associated or related companies carried on a single enterprise that employees of the separate legal entities could be represented by different trade unions so as to cause the bar­gaining rights within the single enterprise to be unduly fragmented. An example of the type of situation where section 1(4) was applied is found in Walters Lithographing Company Limited, et al, [1971] OLRB Rep. 406.

13. It is in these types of situations that the interests of the parties in having the Board treat sep­arate employers as constituting one employer for the purpose of the Act became apparent, and it is for that reason that section 1(4) was enacted.

14. A review of the numerous single employer decisions rendered by the Board since that time have identified the principles and legislative objectives which underline section 1(4). These may be conveniently summarized by stating that section 1(4) is designed:

(a) to preserve or protect from erosion the bargaining rights of the union,

(b) to create or preserve viable bargaining structures, and

(c) to ensure direct dealings between a bargaining agent and the entity with real economic power over the employees.

53. Having regard to these principles and purposes we find that in the circumstances of this case the Board ought to exercise its discretion in favour of the applicant union and make the single employer declaration. In particular the Board's determination with respect to the certification application and concerns about the creation of viable bargaining structures can, and in this instance should be addressed through the common employer declaration. In this instance the separate work forces of the respondents are carrying on an integrated operation.

THE CERTIFICATION APPLICATION

54. The certification application raises directly the question who is the employer of the

stagehands. York Condominium, [1977] OLRB Rep. Oct. 645 was cited for the factors to which

the Board looks to determine who is the true employer of the stagehands. At page 648, paragraph

10 of that decision the various factors were succinctly summarized as follows:

(1) The party exercising direction and control over the employees performing the work.

(2) The party bearing the burden of remuneration.

(3) The party imposing the discipline.

(4) The party hiring the employees.

(5) The party with the authority to dismiss the employees.

(6) The party who is perceived to be the employer by the employees.

(7) The existence of an intention to create the relationship of employer and employee.

55. As the case law indicates no one of the seven enumerated criteria is determinative in all cases. The weight to be attributed to the factors also cannot be assigned in a vacuum. Due regard must be given to the industry within which the persons are employed. In this case it is particularly important to assess the entire context within which all relevant circumstances must be viewed in order to determine "how the industry works".

56. We have heard substantial evidence from all of the witnesses about "how the industry works". Within the industry there are two constants. There is always a venue, "a house", and there is always a "producer" a person or entity which presents or produces a theatrical production at a venue. At times the venue itself may be the producer as was the case both before and after the application date in this case when Theatremark produced both the "the Renaissance Theatre" and later "Love Letters". In the circumstances before us, however, it is not disputed that the "the house" and "the producer" are two different entities. Indeed, in the case before us the parties have agreed that "at the time the application was made" (see section 7(1)) there were sixteen employees at work in the bargaining unit on a production produced by PAlS called the Doras. The parties have agreed that only the employee complement which existed on the application date con­stitutes the lists of employees in the bargaining unit at the time the application was made. That employee complement consisted of 16 persons at work on the Dora production. We must deter­mine who is the employer of those employees.

57. The respondents have argued that they are not the employer of the employees IATSE seeks to represent. Counsel asserts that in answering the question as to who is the employer, there is a "fundamental difference" in the case where one of the respondents is the producer or presen­ter of a theatrical production at the complex, and the fact situation before us where an indepen­dent, third party lessee has leased the complex for the production or presentation of its theatrical production. He argued that had IATSE applied to be certified at a time when the respondent(s) were the lessees of the complex and producing or presenting the theatrical production at the com­plex his submissions would be "different". From the totality of his submissions it is evident that the respondents view the "producer" as the employer of the stagehands and the appropriate respon­dent in the certification application.

58. For its part IATSE asserts that the owner/operator of the complex is the employer of the stagehands. In this instance that owner/operator employer is the fully integrated single employer WGC/Theatrecorp/Theatremark. The three corporate entities together perform the vari­ous functions of the employer vis-a-vis the stagehand employees. The single employer declaration makes it unnecessary to determine with any greater degree of precision which entity amongst the three named respondents is the employer of the employees in question. It is sufficient to determine that the three entities which together comprise "the house" is the employer. Counsel submits that as the operator and licensor of the complex to third party users, "the house" provides a full range of services including the supply and employment of the stagehands and other technical services personnel (i.e. Ms. Robinson) required by such third party licensee for its theatrical production. In making his submissions counsel focused primarily on the written contents of various agreements and documents, the legal "form" of the evidence presented before us. The viva voce evidence however either contradicted or modified that legal form. In the circumstances we find it more appropriate to focus on the substance of the various transactions and agreements rather than their legal form.

59. There are a number of competing policy considerations which alternatively favour either a finding that the "producer" is the employer of the stagehands or a finding that "the house" is the employer of the stagehands dispatched to it from the union's hiring hall. These competing policy considerations were alluded to but were not addressed in any detail by either party.

60. From the applicant's perspective it is extremely onerous to require it to seek to be certi­fied for each theatrical production which may be produced or presented at the complex. Theatrical productions may last for periods of time which range from hours or days to months or even years. From the evidence before us with respect to Theatrecorp's and Theatremark's own past history it is apparent that legal ownership and make-up of production companies may itself undergo several different transformations as new partnerships and entities are created to produce or present differ­ent theatrical productions. In these circumstances granting bargaining rights to the applicant union with respect to employees of a particular "producer" appears somewhat illusory and meaningless. The producer certified today may be gone tomorrow - never to return to the venue or perhaps to return in some other legal form. As a result, it is argued that within the industry only the venue, "the house", is an enduring permanent factor. A constant which is easily identifiable within an industry in which both "producers" and those who work in relation to their productions are essen­tially transitory.

61. The labour relations policy considerations which mitigate finding "the house as employer" but favour a finding of "producer as employer" are equally sound. The Board does not certify unions for physical locations. It certifies unions to represent employees employed by an employer. In that context it makes little sense to find an entity which does not impact upon the employment or conditions of employment of a group of employees accountable for labour relations matters pertaining to that group of employees. To certify an entity which does not in fact for exam­ple exercise direction or control over the employees performing the work, or which does not disci­pline, dismiss or pay employees is equally illusory and meaningless. In bargaining IATSE would be required to negotiate with an entity which does not hire, discipline, or direct employees or which does not control the purse strings about those very conditions of employment. From a labour rela­tions perspective there can be little merit to granting such certification.

62. We do not find it useful or appropriate to focus with any great particularity on the issue whether "the house" or "the producer" is the employer of stagehands. In the matter before us the producer was not named as respondent in either the certification application or the single employer application. In these circumstances therefore it is impossible and particularly inappropriate for us to determine whether another entity not party to these proceedings is the employer of the stage­hands. Rather we must determine which entity, if any, between the ones put forward by the parties (whether alone or together as a single employer having regard to the common employer applica­tion) was the employer of the stagehands at the relevant time.

63. We turn therefore to apply the usual criteria which the Board looks to in making a determination which of various named entities, if any, is the employer. Before so doing however, we note parenthetically that in this case counsel for the respondents and some of the witnesses sug­gested that the union itself was or should be considered the employer of the stagehands. It acts as the provider of labour services to all users of the complex through its hiring hall. We reject such a suggestion. Hiring halls such as the one run by this applicant can provide an equitable and efficient means of distributing employment opportunities in an industry where positions are temporary and personnel needs fluctuate. In Joe Portiss, [1983] OLRB Rep. July 1160 the Board made the following observations about the hiring hall system within the construction industry. We view the com­ments as equally applicable to the IATSE hiring hall.

64. The hiring hall offers advantages to both employees and employers. It saves the employee from the need to canvass numbers of employers in an often fruitless search for work, acting as a clearing house in which available jobs and available workers can be matched. Particularly in periods of high unemployment it also provides the worker with a rational and objective system for the more equitable distribution of work among all employees rather than to the privileged few. The employer gains to the extent that the hiring hall relieves him of the need to screen and recruit employees with adequate qualifications for short term jobs. The employer avoids the administrative cost he would otherwise bear as well as incidental costs which he might have to incur to retain a crew of workers through slow periods to insure available manpower in busier times. A well run hiring hall will give the employer a ready pool of labour from which he can draw on short notice with little or no administrative cost. Moreover, to the extent that the hiring hail dispatches the same members to different kinds of jobs for different employers, as is nota­bly the case for labourers, it may engender a work force with greater experience and sophistica­tion, which will also benefit the employer.

Hiring halls in an industry organized along craft lines can't be compared to and should not be equated with mere temporary employment agencies.

64. With reference to the exercise of direction and control over the employees we find that at the relevant time none of the respondents or their representatives exercised direction and con­trol over the persons at work. Such direction and control as was required was provided by Mr. Kent McKay the production manager of the Doras who was the lessee's (PAlS) representative on site. The stagehands carried out his directions. He determined what specific tasks the stagehands were to perform. He also determined the hours of work including the start and finish of the work day. Mr. McKay exercised both "immediate control" over the employees in the sense of directing specific tasks, and "overriding control" in the sense of ensuring that all stagehand work required to be done on the production was done satisfactorily. After making appropriate introductions Ms. Robinson left. Neither she nor any other representative of the respondent retained any "overriding control" which permitted the respondents, for example, to direct stagehands to work at something other than the Doras (See for example Toronto Arts Productions, [1980] OLRB Rep. Oct. 1556). Where a third party licensee uses the complex Ms. Robinson's role is at best limited to acting as conduit for the licensor's (WGC) instructions respecting only the maintenance of the physical integrity of the building. Ms. Robinson liases with the licensee's personnel on that matter but does not direct, control or supervise the stagehands. The situation is of course quite different when Theatremark or Theatrecorp is a producer of the theatrical production and Ms. Robinson wears her "production supervisor" hat. At the relevant time however, and with respect to the 16 persons who the parties have agreed are in the bargaining unit, the fact of direction and control does not point to the respondents as the employer.

65. With respect to the criterion of the party bearing the burden of remuneration we find that, at first blush this factor points to Theatrecorp as the employer. It is Theatrecorp which issues cheques to the employees after making all the appropriate deductions from those cheques. It is Theatrecorp which makes the remittances to the union. Normally a significant factor in determin­ing who is the employer is to focus on the party which actually pays the employees. In this case, however, the evidence is uncontradicted that Theatrecorp is a mere paymaster for the licensee of the complex, and it is the producer who ultimately bears the burden of remuneration. Theatrecorp is indemnified for the costs it has incurred through the box office receipts and, where necessary a direct charge to the licensee for any short fall between expenditures incurred and box office receipts recovered. The labour costs appear to be borne primarily by the charge through ticket sales. The Board has consistently found that mere administrative paymaster arrangements are not indicative of the true employer. (See fox example Templet Services, [1974] OLRB Rep. Sept. 606; Ralston Purina Canada Inc., [1979] OLRB Rep. June 552; Province of Ontario Board of Internal Economy, [1980] OLRB Rep. Jan. 88; Alwell Forming Limited, [1978] OLRB Rep. Aug. 709; Toronto Arts Productions, [1980] OLRB Rep. Oct. 1556).

66. Moreover the evidence before us goes even further. Within the industry itself paymaster services are well established and common. More importantly both !ATSE and its individual mem­bers know that such paymaster services are typically provided by the complex. Indeed the paymas­ter service itself was instituted at the request of the union. There is no evidence before us from which we can determine what the result would be if stagehands were not in fact paid for work done at the complex - whether the stagehands and !ATSE would seek to recover wages and benefits from the complex or the producer. The viva voce evidence from all of the witnesses including the stagehands does establish however that the stagehands at work and IATSE itself knew of the artifi­ciality of Theatrecorp as the payer of wages and benefits. Both IATSE and its members recognize that all wages and benefits would be charged back to the licensee of the complex.

67. In these circumstances we find that the criterion of the party bearing the burden of remuneration also does not necessarily or standing alone point to the respondents or any of them as the employer of the stagehands.

68. With respect to the third and fifth criteria relating to discipline and discharge, the evi­dence discloses that had it been necessary to discipline any person Ms. Robinson and/or Mr. McKay would refer the matter to the union and its on-site representative. Similarly had circum­stances warranted the drastic step of discharge it is clear that the matter would first have been brought to the union's attention. In turn the union would handle the matter and "police its own". From the stagehand's perspective, when problems arose the stagehand would first go to the per­sonnel associated with "the show".

69. With respect to the factor as to "the party hiring the employees" we find that although Ms. Robinson placed the call to the union hiring hall she was merely a conduit for the instructions of the producer. It was Mr. McKay and Ms. McKeehan who determined the size of the crew and hired the employees. Moreover, the totality of the evidence demonstrates that at all times the union which dispatched its members to the complex knew that Ms. Robinson was acting merely as a conduit and relaying information which had been provided to her by the licensee of the complex. In light of Ms. McKeehan's conversation with Mr. Fuller and having regard to the nature of the industry and the use of the hiring hall we find that the criterion of the hiring of the employees does not point to the respondents as the employer of the stagehands. With respect to the hourly rates paid to members working at the complex we find that on the application date the role of the respondents in that matter was limited to providing PAlS with the IATSE tariff or rates charged when members were dispatched from the hall to the complex.

70. The employees at work on the application date tended to refer to the complex, the Elgin Theatre, as their employer. The stagehands also stated however that they were working at the complex for a producer or presenter of the theatrical production. One of the stagehand wit­nesses for example testified about working for the principals of the respondents at Massey Hall on the "Cats" production road show. The perception of the employees in these circumstances is there­fore an inconclusive factor and does not unequivocally point to any particular entity as the employer.

71. With respect to the final criterion we find that there was no intention to create the rela­tionship of employer and employee by the respondents in any theatrical production which was not presented or produced by the respondents. At the relevant time therefore this factor points to another entity and not the respondents as the employer.

72. The seven criteria point in different directions. On balance however and having particu­lar regard to the direction, control and supervision of the stagehands on the list agreed to by the parties we find that the respondents were not the employer of the employees at the time of the pro­duction of the Doras which led to this application.

73. We find it appropriate to make reference to two matters ancillary to these applications. First, in this case the parties focused their attention and submissions upon the sixteen employees at work on the application date. In so doing the parties recognized the special problems posed by the employment of stagehands within the theatrical industry. Employment within the industry is neces­sarily transitory. Stagehands are generally dispatched from the union hall to different venues within the union's jurisdiction. At any particular venue members may quite literally be here today and gone tomorrow. Theatrical productions at any particular location may last for periods of time which range from hours or days to months or even years. The "mix" of stagehands at a particular venue on any given day may be different depending on the needs of the particular theatrical pro­duction or at what phase of the production the stagehand is working. The frequency of any particu­lar theatrical production, the needs of a particular theatrical production, the availability of financ­ing for such productions must inevitably affect the level of employment of IATSE members not only within the industry generally but also at specific venues such as the Elgin Winter Garden The­atre. Theatres may be "dark" for periods of time until the production or presentation of new theat­rical performances is arranged. Conversely "problems" or the requirement to meet deadlines may require the employment of more stagehands at a venue if only on a short term basis. Corporate entities such as Theatremark may produce or present a number of theatrical productions at differ­ent venues within IATSE's jurisdiction whether simultaneously or not.

74. For all of these reasons the complement of stagehands at a particular venue may vary markedly from day to day making it very difficult to pin down with any precision individuals who should be treated unequivocally as "employees in the bargaining unit" as required by the Act. Nat­urally the union's hiring hall also significantly affects the employment of stagehands within the industry.

75. In light of these various considerations, the inherent transitory, uncertain and ephem­eral nature of employment of stagehands in the theatrical industry and the use of the hiring hall within the industry we agree that it is most appropriate to use the application date in order to "as­certain the number of employees in the bargaining unit at the time the application was made" as required by the Act.

76. For purposes of "the count", the employee complement is that which exists on the application date. We fully recognize that the number of employees may well be different on that day from the day before or the day after. Nevertheless a bright line test which focuses on the appli­cation date (as is also the case in the construction industry) is certain, easy to understand and administers and avoids costly and time consuming litigation associated with other possible alterna­tives. It is a compromise which avoids the complex and uncertain determinations which would need to be litigated if the Board and the parties were required to inquire into reasons why certain per­sons were/were not working at a particular venue either on a particular day or during any chosen "representative period" during which any number of stagehands could have worked at the venue. In this particular case for example approximately one hundred different stagehands worked at the complex on different days in different theatrical productions and for various lengths of time in the period from Monday, May 28th, 1990 to Tuesday, June 26th, 1990. Only one IATSE member worked at the complex in the 30-day period thereafter. If the Board were to adopt its usual "30-30 rule" to determine if persons not at work at the complex on the application date should neverthe­less also be included for purposes of "the count", determinations of the "list" would, in many cases be an extremely difficult, if not impossible task. Focusing on the application date provides an expeditious and orderly method of processing the certification application without the obvious prejudice caused by delay if other alternatives were adopted.

77. Secondly, we have made the single employer declaration pursuant to section 1(4) of the Act notwithstanding the fact that the applicant has not established any bargaining rights with respect to the employees of any of the respondents. The Board does not normally grant such decla­rations unless a labour relations purpose would be served by such declaration. Typically the labour relations purposes served relate to the established bargaining rights of the union which seeks the declaration. Nothing in this decision should be taken as an indication that the Board seeks to depart from its usual practice or that the Board will entertain applications or grant common employer declarations in a vacuum or in circumstances where no bargaining rights exist and where no immediate labour relations purposes would be served in granting that declaration.

78. The parties to these proceedings have spent both time and money in their litigation of the single employer declaration. The evidence before us established that notwithstanding the apparent lack of "formal" bargaining rights, IATSE continues to have a "relationship" with the named respondents. From the evidence, although this "relationship" is not founded on either a voluntary recognition of bargaining rights or certification under the auspices of the Act, it is ongo­ing and appears to be quite common within the industry. For these reasons we are of the view that immediate labour relations purposes, albeit not the "usual" ones, are served by granting the com­mon employer declaration. It can assist the parties in their ongoing and future relationships and will make it unnecessary to re-litigate this particular issue at some future date.

79. For all of these reasons the declaration sought in Board File No. 1678-90-R is granted. We hereby declare that Theatrecorp Ltd., WGC Facility Management Corporation and Theatre-mark Ltd. constitute one employer for purposes of the Labour Relations Act. However, as there were no employees of the named respondents at work in the bargaining unit at the time the appli­cation was made the certification application in Board File No. 0626-90-R is dismissed.

DECISION OF BOARD MEMBER CAROLE McDONALD; March 13, 1992

1. I concur with the majority decision with respect to the single employer declaration. I do not however concur with their decision on the certification application.

2. IATSE asserts that the owner-operator of the complex is the employer of the stage­hands. In this instance that owner-operator employer is the fully integrated single employer WGC, Theatrecorp, Theatremark.

3. WGC, Theatrecorp and Theatremark together comprise "the house" and as operator and licensor of the complex to third party users "the house" provides a full range of services including the supply and employment of stagehands and other technical services personnel required by such third party licensee for its theatrical production;

4. By an agreement in writing dated April 12, 1990 WGC retained the services of Theatrecorp to provide and/or co-ordinate all technical services;

5. As stated in the majority decision, paragraph 9, and reproduced here, Theatrecorp pro­vides to WGC services including:

i) All production and technical services for the Complex as they relate

to the requirements for production and/or presentations taking place within the Complex;

ii) All arranging or co-ordination of the providing of labour required to perform the functions as outlined in number i) above;

iii) All payroll functions (including but not limited to payment, process­ing, workers' compensation insurance, deductions, benefits etc.) required to remunerate any and all labour retained by THEATRE-CORP to perform any of its obligations under this agreement;

iv) The services of Ms. Sandra Robinson as Liaison and co-ordinator between WGC and Theatrecorp.

The agreement further states that WGC will:

i) Reimburse Theatrecorp for any and all disbursements made on behalf of WGC in the performance of the functions outlined above;

ii) Withhold a sufficient amount of funds from box office receipts sold on behalf of licensees of the Complex in order to reimburse Theatre-corp for costs paid on behalf of such licensees;

iii) Provide Theatrecorp with office space, a telephone and such other office equipment as may be required to carry out its tasks;

6. In an agreement dated December 1, 1989, Ms. Robinson as liaison and co-ordinator between WGC and Theatrecorp contracted to provide the following services to Theatrecorp as outlined in the majority decision, paragraph 10, and reproduced here:

i) Production management services to Theatrecorp for any and all pre­sentations produced and/or presented by Theatrecorp within the complex;

ii) Production management co-ordination and/or assistance to licensees within the complex for any and all presentations produced and/or presented by such licensees;

iii) Supervision and/or co-ordination of all technical services within the complex in order to protect the complex from unauthorized persons performing any technical services within the complex.

7. As licensor of the complex WGC has chosen to provide theatre related services, includ­ing technical and production services and payroll services to its licensees through the offices of Theatrecorp. In this instance WGC, Theatrecorp, Theatremark performed the various functions of the employer, vis-a-vis the stagehand employees. Union counsel in his submissions focused primar­ily on the legal "form" of the evidence. The majority decision at paragraph 58, however, states that "the viva voce evidence however either contradicted or modified that legal form. In the cir­cumstances we find it more appropriate to focus on the substance of the various transactions and agreements rather than their legal form". I do not agree, it is my opinion parole evidence can not be introduced to alter, abrogate or add to the terms of the written contracts that are in evidence before this panel. Control of the complex and stagehand employees belongs to WGC/Theatrecorp/Theatremark through its lease agreements with the third parties.

8. These agreements provide that Ms. Robinson assists and advises the licensee in deter­mining the classification of stagehands, the size of the crew and the hours of work. Ms. Robinson generally contacts a business agent of the union to advise them of the call for members.

9. Stagehand employees require little or no direct control or supervision by either the licensor or the licensee. As stated in the majority decision at paragraph 38:

In fact IATSE members require little supervision. As skilled, qualified and "professional" mem­bers of their craft the members are generally merely directed to the type of work to be per­formed As skilled technicians who regularly work at a particular venue on many different productions, they know by experience and training generally what needs to be done.

10. The manner of control of the licensee of the stagehand employees in this instance is lim­ited to that of informing the lead hand what they require for their production and having the lead hand if necessary instruct the other employees to carry out the tasks~ as required, within the allot­ted time.

11. I believe the banquet/catering and convention business to be analogous to the instant application. The banquet/catering/convention facilities are leased for various functions, similar to this complex being leased for productions. The lessor generally agrees to provide to the lessee a full range of services including the supply and employment of its banquet/catering/convention employees in the same manner this complex does with stagehand employees.

12. The lessee may direct and supervise the banquet/catering/convention employees in the same manner Mr. McKay directed the stagehand employees. This does not however, make the les­see the employer of the employee providing the services it has contracted for. It would be ridicu­bus to expect that each lessee would be the employer of these employees, as defined in the Ontario Labour Relations Act. In my opinion, it would effectively deny these employees from ever being able to exercise their rights under the Act.

13. Payroll functions are provided by Theatrecorp to licensees of the complex. All time sheets for IATSE members working at the complex are provided to Ms. Robinson by the depart­ment heads regardless of the identity of the licensee to the complex. Ms. Robinson checks the timesheets, investigates any discrepancies and ultimately forwards the timesheets to WGC. IATSE members receive paycheques and T4 statements from Theatrecorp for work performed at the com­plex. As part of its contractual agreement (reproduction page 1, paragraph 3 (iii)) to lease the complex and all of its service the licensee of the complex bears the burden of remuneration of wages and all other costs paid on its behalf by Theatrecorp.

14. With respect to Discipline and Authority to dismiss the majority decision at paragraph

39 states:

Some of the traditional aspects of the employer/employee relationship such as the appointment of "lead hands" or "working supervisors" and the imposition of discipline are not present when IATSE members are engaged. This is so whether WGC licenses the complex to a third party licensee or to one of the other respondents. Thus for example it is generally the union which determines who will be the department head(s) during a theatrical production, not the producer or presenter of the production. Similarly matters of discipline of employees are generally dealt with internally by the union through the head or union steward on site. The producer or presen­ters role in disciplining IATSE members appears to be limited to informing IATSE, the depart­ment head and/or the steward of any problem.

This would once again be similar to that of a lessee of banquet facilities.

15. With respect to the factor as to the party hiring the employees, Ms. Robinson placed the call to the union hiring hall as she generally does. It was her assistance and advice to the licensee that determined the classification of stagehand, the size of the crew and the hours of work. Ms. Robinson fulfilled her obligations as licensor in providing the labour required to perform the func­tions of this production.

16. WGC, Theatrecorp and Theatremark is the party who is commonly perceived to be the employer by the stagehand employees. When asked for whom they work the member answered "the Elgin Theatre" or the "Elgin Winter Garden Theatre".

17. With respect to the seventh and final criteria I do not believe that the evidence discloses that there was any intention to create the relationship of employer and employee by either the licen­sor respondents or the third party licensee in the theatrical productions which were presented or produced.

18. Unlike the majority, I believe that the policy considerations favour a finding that the house is the employer. Paragraph 60 of the majority decision states the following:

From the applicant's perspective it is extremely onerous to require it to seek to be certified for each theatrical production which may be produced or presented at the complex. Theatrical pro­ductions may last for periods of time time which range from hours or days to months or even years. From the evidence before us with respect to Theatrecorp's and Theatremark's own past history it is apparent that legal ownership and make-up of production companies may itself undergo several different transformations as new partnerships and entities are created to produce or present different theatrical productions. In these circumstances granting bargaining rights to the applicant union with respect to employees of a particular "producer" appears somewhat illusory and meaningless. The producer certified today may be gone tomorrow -never to return to the venue or perhaps to return in some other legal form. As a result, within the industry only the venue, "the house"~ is an enduring permanent factor. A constant which is easily identifiable within an industry in which both "producers" and those who work in relation to their productions are essentially transitory.

19. During the months of June and July 1990, seven theatrical productions and events (as listed in majority decision paragraph 19) requiring the use of stagehands took place. As the major­ity decision is written this would have required the union to organize seven times and file seven sepa­rate certification applications for seven separate employers. The certification applications would not be limited to those seven productions in June and July. There could possibly be numerous applica­tions on the same day, covering the same employees performing the same work under the same roof, for the same house (but for different producers). I believe this would have the effect of denying these employees their rights to organize themselves into a union, become certified and have a collective bargaining relationship with "their" employer. Further it does not make labour rela­tions sense nor is it the intent of the Act. Ironic that the majority in this instance does not have the same policy considerations that it would have when considering an application for a bargaining unit that would create "undue fragmentation".

20. The numbers and types of employers are only as limited as one's imagination. Would a charity, political party, church, rock band, trade union, government body or any other organiza­tion leasing the Complex for a production/event be the employer of the stagehands? In my opinion that would be analogous to one who rents a hotel room being the employer of the housekeeping employee who services that hotel room. A ridiculous thought indeed!

21. I believe that the house does impact upon the employment or condition of employment of this group of employees and should therefore be accountable for labour relations matters pertaining to this group of employees. The house is in the business of using the complex to present theatrical productions and in authorizing other persons to use the complex through lease agree­ments.

22. The house determines who it will lease this complex to. The house determines when it will lease the complex. The house determines for how long it will lease the complex. The house further determines what the cost will be for the services, including the labour, for the lease of the complex. The house through its lease agreements has economic control over the stagehand employ­ees.

23. Therefore, for all of the above reasons I would find that WGC,Theatrecorp/ Theatremark, "the house" is the employer of the stagehand employees.