Canadian Stagehands Association v. Corporation of the City of Ottawa, 1993 CanLII 7902

[1993] OLRB REP. OCTOBER 923 923

2338-92-U; 2339-92-U; 2344-92-U; 2345-92-U Canadian Stagehands Association ["CSA"], Applicant v. Corporation of the City of Ottawa ["the City"] and Bass Clef, Responding Parties v. International Alliance of Theatrical Stage Employees, Local 471 ["IATSE"], Intervenor; Canadian Stagehands Association ["CSA"], Applicant v. Corporation of the City of Ottawa ["the City"] and MCA Concerts Canada ["MCA Concerts"], Responding Parties v. International Alliance of Theatrical Stage Employees, Local 471 ["IATSE"], Intervenor

BEFORE: R. 0. MacDowell, Alternate Chair.

APPEARANCES: Sean T. McGee for Canadian Stagehands Association; Carey B. Thomson for the Corporation of the City of Ottawa; Ian D. Werker for MCA Concerts Canada; Sharona Freudmann for Bass Clef Entertainments Ltd.; David Jewitt for the International Alliance of Theatrical Stage Employees, Local 471.

DECISION OF THE BOARD; October 18, 1993

For ease of reference in this decision, the parties will be referred to in abbreviated form. The Canadian Stagehands Association will be referred to as "CSA", the Corporation of the City of Ottawa will be referred to as "the City", Bass Clef Entertainments Ltd., and MCA Concerts Canada will be referred to, individually, as "Bass Clef", or "MCA Concerts" and, collectively, as "the promoters", and Local 471 of the International Alliance of Theatrical Stage Employees will be referred to simply as "IATSE".

I

This proceeding originates as a series of interrelated applications under sections 91 and 94 of the Labour Relations Act. In each of these applications, CSA challenges an arrangement between the City and various concert promoters which, in CSA's submission, unlawfully deprives its members of work opportunities. The gist of that arrangement is quite simple: the City will only rent its facilities to promoters who have a collective bargaining relationship with IATSE, or who agree to use IATSE members for "stage hand work" that is done in the City's buildings.
CSA contends, among other things, that this arrangement has caused the promoters to unlawfully "lock out" the CSA members. The Act defines the term "lock-out" this way:

"lock-out" includes the closing of a place of employment, a suspension of work or a refusal by an employer to continue to employ a number of employees, with a view to compel or induce the employees, or to aid another employer to compel or induce that employer's employees, to refrain from exercising any rights or privileges under this Act or to agree to provisions or changes in provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, an employers' organization, the trade union, or the employees.

The responding parties raise a variety of issues in reply, including: whether CSA is a "trade union" within the meaning of the Act; whether CSA has a valid collective agreement with the named promoters; whether that collective agreement contemplates the very situation here under review and thus answers the "lock-out" allegations (i.e., permits the promoters to "refuse to employ" CSA members in the circumstances here present); whether there is a collective bargaining relationship between IATSE and the City that provides a legal platform for the arrangement that CSA challenges; whether the Board can or should interfere with the conditions which the City, as property owner, imposes upon those who rent its facilities; whether these proceedings should be "deferred to arbitration", and whether this controversy is "really" a jurisdictional dispute between two unions, which should be dealt with pursuant to section 93 of the Act. Section 93 reads, in part:

93.-(1) This section applies when the Board receives a complaint,

(a) that a trade union or council of trade unions, or an agent of either was or is requiring an employer or employers' organization to assign particular work to persons in a particular trade union or in a particular trade, craft or class rather than to persons in another; or

The promoters contend that they are "caught in the middle" between two unions, both of which are demanding that work be assigned to their members. The promoters assert that this is a "jurisdictional dispute" which ought to be dealt with under section 93, not section 95 which deals with "lock-outs".

When these matters originally came on for hearing before the Board, the parties met with a Labour Relations Officer in an effort to resolve the matters in dispute between them. Eventually counsel were able to work out a tentative settlement, and since no one was anxious to proceed with protracted, problematic, and potentially costly litigation, the case was adjourned pending ratification of that settlement. Unfortunately, the settlement was not ratified, and it is therefore necessary to address at least some of the issues/arguments which the parties have raised.
The parties have all agreed that it might expedite matters if the Board were to rule on a "best case" basis, whether certain stipulated facts could amount to an illegal lock-out for which relief was available. For this purpose, each of the parties was prepared to set aside, for now, certain legal arguments and factual challenges, that they have raised in their pleadings. Instead, the parties have constructed a factual scenario upon which they have all made written argument.
This approach was somewhat novel, and, in the result, the parties' statements were not completely congruent. However, it appears to the Board that it is a sensible way to proceed, and that the Board can, in fact, make the requested ruling based upon the material before it (i.e., agreed facts, assertions which for present purposes the parties will not challenge, certain background information which is not seriously in dispute, and counsel's written representations).
The Board is prepared to proceed on the basis to which the parties have agreed - provided it is understood that the Board's decision in this regard must be read in light of the parties' agreements, and the limitations set out above.

II

IATSE is an international union with substantial membership in the United States and Canada. IATSE has a multiplicity of collective bargaining relationships in Ontario and elsewhere. IATSE has had a collective bargaining presence in the Ottawa region for many years.
By contrast, CSA is a relatively new organization that was formed in 1992 by former members of IATSE, following an internal dispute within the IATSE organization. The details of that dispute are not particularly relevant. It suffices to say that IATSE locals with responsibility for different entertainment complexes in Ottawa, were amalgamated into a single, composite, local; and, thereafter, there was a dispute within the combined IATSE membership over how regional work opportunities should be distributed. That dispute resulted in the departure of certain IATSE members who, with others, formed the CSA.
Bass Clef and MCA Concerts are promoters that stage entertainment events in halls or theatres owned by others. Their business activities are not confined to the Ottawa area; however, when they are carrying on business in Ottawa, they make use of existing theatre/auditorium facilities. Their method of operation is relatively straightforward.
The promoter rents the auditorium or "house" from the local owner, then organizes the event that is to be staged there. The promoter engages such stage employees as may be necessary to set up and tear down the production. The promoter will not normally have an established complement of its own employees. It hires the number and kinds of workers that it needs for a particular event, and when the show is over, those workers may all move on to something else. In this regard, the relationships are similar to those in the construction industry, where companies move from job to job, assembling their workforce as needed, and releasing the employees when the project is over.
A "unionized" promoter typically engages out-of-work union members - usually through a "hiring hail" arrangement in which the promoter specifies the number of workers needed, and the union refers the crew. The employees then set up the show in accordance with the instructions of the promoter. The promoter bears the responsibility for their wages, benefits, etc. And while the material before the Board is not entirely clear, it appears that this is the way the system works, whether or not the promoter signs a formal collective agreement with the union. In this industry, informal understandings and local area practice are both important determinants of behaviour.
CSA has entered into what it claims are collective agreements [this is challenged by IATSE] with MCA Concerts and Bass Clef. Those collective agreements set out the terms and conditions of employment for any CSA members employed by these promoters. CSA claims that, by virtue of these agreements, it should be the supplier of stagehand labour to Bass Clef and MCA whenever the promoters organize an event. However, the collective agreements read, in part:

This agreement shall not be in force if the productions are in a location covered by another collective agreement for the supply of labour, etc., unless the said agreement is waived in favour of the Canadian stagehands Association.

It is this clause which the promoters claim relieves them of the obligation to use CSA members when the "house requirements" specify an alternative labour source. The promoters contend that if "the house" specifies the trades or trade union affiliation of the workers brought into its facility, the promoter is bound to abide by these limitations - that is why there is a clause in the collective agreement recognizing that CSA's claim must give way to established local arrangements.
The promoters assert that the practice in the industry is to recognize the local trade practices and union affiliations associated with "the house". The promoter abides by the rules established in the local area, and for the particular venue, in which the show is to take place. Thus, while there is no doubt that MCA Concerts and Bass Clef may be under some obligation to CSA to meet their labour requirements by hiring out-of-work CSA members, the extent of that obligation is a matter of debate. That is why the promoters submit that the issue should be submitted to arbitration.
CSA replies that whatever the agreements mean, they do not cover the situation here under review, or relieve the promoters of the obligation to employ out-of-work CSA members.
The City of Ottawa owns and operates Lansdowne Park, which is a recreation complex comprising a number of facilities, including an ice-skating arena known as the Civic Centre, a football stadium, and various other buildings. These facilities can be rented for trade shows, concerts, or other entertainment events. Promoters consider them desirable, and, for some kinds of production, there are no convenient alternatives.
When the City rents its facilities to a promoter, it does not hold itself out as "the employer" of individuals hired in connection with the show. Nor does the City assert any right of direction or control over employees. The City does not assume the burden of remuneration. Those arrangements remain the prerogative of the promoter and/or the entities with which the promoter may contract. But the City does purport to control the trade union affiliation of employees working on its premises, and it is that aspect of its commercial relationship with the promoter, that is central to the current controversy.
If a promoter wishes to use the City's facilities, it must enter into a rental agreement which the City describes as an "occupation permit". In addition to a rental fee, the standard form rental agreement contains the following condition:

It is understood and agreed by the Producer that where personnel are required to be engaged in event preparation, set up and tear down, to fulfill the duties under the following categories, then and in that event, all regulations set forth by the International Alliance of Theatrical stage Employees Union shall be strictly complied with, excepting in any case any of the following classes employed by the City of Ottawa and covered by its collective bargaining agreement with the Ottawa-Carleton Public Employees Union, Local 503 - CUPE (CLC).

III

Before addressing the narrow question which has been put to the Board for its determination, I think it may be useful to sketch in the broader collective bargaining perspective; for at the root of CSA's argument, is an assumed relationship between "trade union membership", "bargaining rights", "rights under the Act" and "work" which is neither grounded in nor supported by the statute. In particular, the statute does not create any general right to particular work, or to work in a particular place, and there are a number of legitimate arrangements which either link work opportunities to membership in a particular union or limit work opportunities because the employee is not a union member or belongs to the "wrong union". CSA members are understandably concerned that their choice of union has excluded them from certain work opportunities; but, as will be seen, their dilemma is not unusual, nor does their concern, in itself, provide a legal foundation for their claim.
The most common example of this "linkage" is a union security arrangement (see section 46 of the Act) which requires membership in a particular union as a condition of employment. If an individual wants access to the work that an employer provides, that person may have to join a particular union - whether or not s/he wants to do so. Union membership does not, in itself, guarantee employment, or continued employment, or any particular amount of work, but unless the individual joins the union, s/he may be excluded altogether. If a person is not prepared to join the union or is not already a member (in "hiring hall" closed-shop situations), s/he will not be employed. And, of course, if the union is not prepared to accept someone into membership, that too may exclude him/her from work opportunities that the union controls.
Closely akin to union security provisions are "sub-contracting arrangements" which either prevent the transfer of bargaining unit work to others, or direct that such work must go to members of the union party to the arrangement. In this latter form, the arrangement protects the membership of the union by channelling work only to particular employers who employ union members and not to non-union employers or employers whose employees are represented by another union. Such subcontracting conditions favour one group of unionized workers at the expense of others or non-union employees; and they do that by controlling the commercial relationship between employers. The union protects its members by defining or limiting the contractors with whom "its" employers can deal, and by encouraging its employers, to deal only with unionized businesses. Here, too, one might claim that "third parties" are "dictating" available work opportunities, but there is nothing illegal about that.
It is important to understand that a trade union's attraction for its members lies not only in its ability to negotiate favourable wages or working conditions, but also in its ability to protect or enhance those members' access to work. That is especially so where the work flow is erratic as it is in the construction industry or the entertainment business, and, not surprisingly, it is in this context that one encounters the most elaborate mechanisms to control work. The union seeks to prevent leakage of work to non-union firms or to firms represented by other unions. At the same time, it attempts to promote arrangements that direct work to "its" employer to the exclusion or non-union firms or firms with other union affiliations. (As I have already noted, from IATSE's point of view, there is no distinction between a non-union promoter and one with a relationship with some other union.)
Work restrictions and commercial restraints of this kind are not necessarily illegal simply because they enhance one union's control of work at the expense of another union or non-union employees. Nor does it matter that such devices might induce non-union employees or the members of less successful unions to abandon their previous preference in favour of a union that is better able to "deliver the bacon". It may be improper for a trade union to use illegal economic pressure to achieve such restrictions, but the arrangements themselves are not per se illegal, and, in fact, are quite common.
The situation in Metropolitan Toronto Apartment Builders Association, [1978] OLRB Rep. Nov. 1022 provides a concrete illustration of the way in which such antecedent restrictions on work allocation can impinge upon subsidiary collective bargaining relationships. It also illustrates the care which must be exercised before concluding either that access to particular work is a "right protected by the Act", or that such restrictions on workflow illegally "interfere" with the bargaining rights of a disfavoured union or the rights of employees who prefer to be non-union. Finally, it illustrates the way in which someone who owns or controls the site where work is done, can decide which firms will work at that location, and thus which group of workers will have access to those work opportunities.
In Metropolitan Toronto Apartment Builders Association, a group of general contractors got together with a group of local craft unions and decided that any work on the various projects which these contractors controlled, would be done exclusively by members of one or more of those unions. Among the unions in the group was Bricklayers Local 2 which claimed, and was promised, any ''bricklayers work'' at the various sites which the contractors controlled.
The essence of the arrangement was a restriction on tendering, so that only businesses with stipulated collective bargaining relationships could bid for, or perform, work on the projects controlled by the general contractors. The contractors promised that they would only enter into commercial agreements with construction companies that had acceptable collective bargaining relationships with the members of the union group. In addition, if the successful bidder chose not to do all of the work itself, it had to promise that any sub-contractor it engaged would likewise have an acceptable collective bargaining relationship with one of the unions in the group. The obligation to use a particular union was passed along down the contractual ladder.
These arrangements (we say "arrangements" because the Board did not decide whether they were part of a collective agreement) guaranteed that bricklayers' work would always be done by Bricklayers Local 2 members, because in order to bid for work or be on the job site, a masonry contractor had to have a collective bargaining relationship with Bricklayers Local 2. But, of course, the arrangement also guaranteed Local 2's work jurisdiction and presence on the job site to the exclusion of other trade unions representing Bricklayers, the employers of bricklayers represented by other unions and non-union employers and employees in the masonry trade.
That is what prompted a challenge from Bricklayers Local I - another Bricklayers union in the Toronto area that found itself excluded from job sites to which the arrangement applied. Local l's challenge was supported by MCAT, the group of employers with which Local 1 had a collective bargaining relationship. The rival union and rival employers attacked the arrangement which excluded them from particular job sites.
Local 1 and MCAT argued that the general contractors were "dictating" the collective bargaining relationships of other employers on the site, and interfering with the bargaining rights of Bricklayers Local 1, whose members were excluded from the site and its work opportunities, because they had the "wrong union" affiliation. In Local l's submission, its members were being told to join Local 2 or remain unemployed - they had to abandon their union in order to get work. Local 1 and MCAT claimed that this kind of "top down" influence on subsidiary collective bargaining relationships was contrary to the Labour Relations Act. However, the Board disagreed, writing, in part:
This Board concurs with the view that the primary purpose of the sub-contracting clause is to protect a union's claim to a particular work jurisdiction. Can it be said, then, that such provisions interfere with an employee's right to join a trade union of his choice~ as protected by sections 58(c) and 61 of the Act? Although employees may be tempted to join a trade union which can provide them with work, this consideration is a recognized fact of life in the construction industry where trade unions have some control over the allocation of work through their hiring halls. The availability of work through a trade union will always operate as an inducement to employees to join a particular union, regardless of the presence of a sub-contracting arrangement. This kind of inducement, therefore, cannot constitute the kind of conduct contemplated by either section 58(c) or section 61 of the Act.
Nor can it be said that the sub-contracting clause interferes with another union's bargaining rights contrary to section 56 and 59 of the Act. In the Board's view, there is no exact equation between bargaining rights and work jurisdiction, as the complainant attempted to make out. While the Board recognizes that, without a supporting work jurisdiction, bargaining rights in the construction industry may wither, the two concepts are not congruent. Under the Labour Relations Act, bargaining rights acquired either through the certification process or by voluntary recognition only entitle a union to be recognized as the exclusive bargaining agent for a particular group of employees. The bargaining rights conferred by law do not give a union any particular work jurisdiction, and any claim to a work jurisdiction must be asserted and established in the bargaining process through such means as a sub-contracting provision. Sections 56 and 59 of the Act are intended to protect bargaining rights only, and these sections cannot be interpreted as providing protection to a work jurisdiction. Conflicting claims to particular work receive much different legislative treatment, being subject to the procedure established in section 81 of the Act for the resolution of jurisdictional disputes.
The MCAT attacked the sub-contracting clause on a somewhat different ground, arguing that the clause was illegal because it restricted the tendering procedure. According to the MCAT, it was particularly unfair that its members were being excluded from access to projects being financed by public money. While this concern of MCAT is quite understandable, it should be made clear that the supervision of tendering procedures is well beyond the jurisdiction of this tribunal. Our jurisdiction is to simply determine whether sub-contracting provisions, as such, violate any provision in the Labour Relations Act. The answer to this question is clearly no.
The fact that a commercial arrangement gives some employers with particular collective bargaining relationships preferred access to business (and therefore work opportunities for their employees), does not, in itself, amount to a violation of the Labour Relations Act or unlawful interference with "rights" protected by the Act - even though such firms may have a competitive advantage over others, and employees may be attracted to a trade union that is able to secure and benefit from such arrangement. Indeed, it is quite common for an owner or a general contractor (i.e. an entity with the flexibility to decide with whom it will contract) to take into account the "union status" of the companies with whom it chooses to do business. Likewise, an industrial firm may prefer to do business with companies that have particular trade union presence (for example, by agreeing that repair work will only be done by outside contractors who use members of the "house-union"). The reasons for this are various, but ultimately reflect the business judgement of the owner or general contractor or industrial enterprise that it is in its interest to enter into such arrangements. No one has ever suggested that they are illegal merely because they prevent employers with different union affiliations from participating in the project or work; nor was the Board in MTABA prepared to tell one employer or owner which other employer it could contract with. The Board recognized that arrangements of this kind might give rise to a jurisdictional dispute, but the Board was not prepared to say that the arrangement was illegal - even though it was evident that work was being directed to Local 2 members in preference to members of Local 1, and the latter were claiming that they were "discriminated against" because they belonged to the "wrong union". The claim had rhetorical attraction, but it did not have a legal foundation.
The situation currently before me is not precisely the same as that before the Board in MTABA, but the case is useful because it illustrates that bargaining rights do not necessarily translate into a statutory claim or statutorily protected right to particular work; and there may be commercial limitations on work opportunities, linked to trade union affiliation, that do not amount to an unlawful interference with statutory rights.

IV

With that general background I turn to the narrow question that the parties have posed in this case: has the IATSE preference in the City's lease arrangement caused an unlawful lock-out of the promoters' employees, for which relief is available from the Board?
In answering that question, I think it is useful to consider the respondents separately.
The City has no collective bargaining relationship with CSA, and it seems clear that the City is not the employer of stagehands. It has neither refused to employ nor continue to employ such employees; nor does the City seek to "compel or induce" or "to aid another employer" to compel or induce its employees, to refrain from exercising rights under the Act, etc. The City is not applying pressure on stagehand employees - it has none; nor it is allied with or assisting or acting on behalf of the promoters to put pressure on the promoters' employees. The City is not the "agent" of the promoters, or acting on their behalf. The City, as property owner, for its own business reasons and in its own interest, is deciding with whom it will contract. The collateral impact on someone else's employees does not fall within the definition of a lock-out.
For the purpose of the "best case" argument, I will assume that the promoters chose not to hire out-of-work CSA members, and that this amounts to a failure to "continue to employ" employees within the meaning of the lock-out definition (although I note that "employ" and "continue to employ" are distinct concepts elsewhere in the Act, with only the latter appearing in the "lock-out" definition - c.f. section 67 of the Act). But the refusal to resort to the CSA hiring hall was not intended to compel or induce CSA members to forego rights under the Act. The fact is that there was no work available to CSA members at the Civic Centre, and they have no more valid claim to perform stagehands' work there, than they have in respect of other functions (janitorial work, say, or ticket sales, or running the lighting system) which the City may reserve to its own employees represented by CUPE, or channel to anyone else whom the City chooses to permit on its premises. In this situation the City has decided what work opportunities will be made available and to whom, and the prompters have no choice in the matter. The promoters cannot pass on or withhold "work" to members of CSA, because of the conditions upon which business opportunities are handled to the promoters in the first place. They cannot employ CSA members because there is no work for them to do, and the City will not permit them on its premises to perform the functions they claim to be theirs. The actions of the promoters lack the intention required by the definition of "lock-out" ("... with a view to compel, etc....").
There is no stipulation in the material before me of any direct communication between the promoters and potential employees designed to induce them to abandon their bargaining agent; and even if there were, I am not sure it would make any difference. Indeed, the CSA collective agreement seems to contemplate situations in which arrangements at "the house" may give preference to another union and relieve the promoters of any obligation to use CSA members. Whether or not the IATSE preference under review fits within the strict parameters of the CSA collective agreement, it is difficult for CSA to maintain that these extrinsic commercial arrangements are contrary to the statute, or, if engaged, result in a breach of the law. For if that were the case, it would not matter whether they were embedded in a collective agreement between the City and IATSE or, as appears to be the case, a long-standing policy to the same effect. In other words, the situation the CSA claims is unlawful appears to be specifically contemplated in its own collective agreement.
To the extent that there has been a "refusal to employ" CSA members, that refusal was not tainted by the improper motivation required by the definition of "lock-out". The promoters were not using improper leverage to extract concessions from employees or potential employees, or to compel those individuals to forego statutory rights. The promoters were merely responding to the commercial situation in which they found themselves, and there is no suggestion whatsoever that there was ever any attempts to pressure employees to leave CSA. To the extent that IATSE's size, reputation, contacts, or experience creates allies in the region, or collective bargaining advantages that a small new union does not have, that is simply a collective bargaining reality which CSA members must recognize. In this respect, their situation is no different from the members of Bricklayers Local 1 in the MTABA case mentioned above: they too found themselves excluded from worksites because of their choice of union. And that, the Board said, was a "fact of life".
For the foregoing reasons, I am satisfied that the promoters' decision not to hire CSA members does not, in the circumstances of this case, constitute an illegal lock-out within the meaning of the Act. However, even if the circumstances here did meet the technical requirements or a literal reading of the lock-out definition I would not be inclined to interfere with the terms upon which the City, as a property owner, contracts with another business - particularly where, as here, the City is merely maintaining a labour relations status quo which has operated satisfactorily for decades. Section 95 gives the Board a discretion to intervene, and I would not be inclined to exercise it here. For as the Board held in Peter Kiewit, [1991] OLRB Rep. July 881, where the essence of the dispute is a jurisdictional dispute, that is the mechanism which should be applied.
This is not to say that the members of CSA are entirely without remedy. If they can establish that the promoters have failed to comply with the terms of the collective agreement, they may well be able to obtain compensation. Similarly, (as counsel for MCA Concerts submits) the situation here may disclose a jurisdictional dispute for which a remedy might be sought under section 94 of the Act (although it might not be granted). However, in my view, there is no "illegal lock-out" for which relief is available against either the City or the promoters.