[1995] OLRB Rep. December 1433
1106-95-R International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 634, Applicant v. 1085803 Ontario Limited c.o.b. as Grand Theatre Centre of Sudbury, Responding Party
BEFORE: M. Kaye Joachim, Vice-Chair, and Board Members R. M. Sloan and D. A. Patterson.
DECISION OF THE BOARD; December 21, 1995
This is an application for certification in which the parties have reached agreement on all matters in dispute between them with the exception of the matter described below.
The parties have agreed upon the following bargaining unit description:
All stage employees of 1085803 Ontario Limited c.o.b. as Grand Theatre Centre of Sudhury. in the Regional Municipality of Sudbury, save and except Theatre Manager and persons above the rank of Theatre Manager.
The only dispute between the parties is whether the stage employees are employees or whether they are independent contractors within the meaning of the Act. The applicant union takes the position that the disputed individuals are employees. The responding employer takes the position that they are independent contractors. By a decision of the Board dated July 28, 1995, a Labour Relations Officer was appointed to inquire into and report to the Board concerning the matter in dispute.
The Labour Relations Officer issued his report on October 17, 1995 and it was circulated to the parties. The parties were requested to make written submissions to the Board by October 26, 1995. The Board received the applicant's submissions; the responding party did not make any written submissions.
On the date of the application, June 13, 1995, there were four persons working as stage hands on a production at the Grand Theatre Centre of Sudbury. The officer's report consists of the evidence of Kevin McArthur, Rob Nardin, Bernie Lalonde. The parties agreed that the examinations of these persons are representative of all persons in dispute.
The Board has carefully considered the transcript of the examinations, the exhibits filed, and the submissions of the applicant, and has concluded that the persons in question are employees, rather than independent contractors.
The individuals in question work as stage hands for the responding party when the responding party has a production to present at the Grand Theatre Centre of Sudbury.
Rob Nardin was originally a full-time technical director for the responding party. In April 1994 he was issued a record of employment terminating his employment, but he continued to do the same work for the responding party. Since April 1994, he has been paid on a per production basis at a rate of $150.00 per day. He estimates that there are approximately 100 productions annually. His job is to implement the technical theatrical needs of the artist for the production. In this capacity, he acts as a liaison between the artist production crew and the principal of the responding party, Claude Michel. Under the direction of Mr. Michel, he selects the staff, such as Kevin McArthur and Bernie Lalonde, needed to set up the production. Mr. Michel has the ultimate power with respect to hiring or firing or limiting the work opportunities of the stage hands.
Bernie Lalonde and Kevin McArthur each have other jobs and work for the responding party on an occasional basis. Kevin McArthur testified that he has been called in approximately 10 times per year for the last three years. He has also worked as a stage hand for other organizations although the majority of his stagehand work is done for the responding party. Bernie Lalonde testified that he has been hired for all the shows that required additional stage hands for the last five years. He estimated the number of shows he worked on as 30 to 50 shows per year.
The individuals bring some tools of the trade with them. For example, Kevin McArthur usually brings a crescent wrench. Bernie Lalonde usually brings a set of tools, a rope and a harness which he needs to perform his work. Rob Nardin brings his own set of tools. All these individuals also work with tools provided by the responding party. Kevin McArthur and Bernie Lalonde are paid an industry-wide salary of $9.00 an hour and are called in for a minimum of four hours for each production. They are supervised by Rob Nardin who in turn reports to the principal of the responding party, Claude Michel.
None of these individuals have their own company or registered business for the purpose of carrying out the stage hand work. None of them hire employees of their own. They do not have a contract in writing or otherwise with the responding party. None of the employees currently invoice or bill the responding party. The employees are paid either in cash or by cheque by the Grand Theatre. Currently, no statutory deductions or withholdings are made. All of the employees regard themselves as employees of the Grand Theatre.
In Algonquin Tavern, [1981] OLRB Rep. Aug. 1057, the Board applied a list of eleven factors which, alone or in combination, assist in determining whether a person is an independent contractor:
The use of, or right to use substitutes. It has been considered inconsistent with an employment relationship if one could fulfil the bargain with someone else's labour rather than one's own work and skill. This is significant however, only to the extent that it is the alleged employee who makes that decision.
Ownership of instrumentalities, tools, equipment, appliances, or the supply of materials. These factors indicate something in the nature of a capital investment so that gains or losses will depend upon something other than the individual's own labour. On the other hand, reliance upon another's financial loss on capital infrastructure for the essential tools necessary for performance of the work is more likely to be associated with an employment relation-ship.
Evidence of entrepreneurial activity. This factor is closely associated with ownership of tools and encompasses self- promotion, advertising, use of business cards, soliciting to develop "clients"~ the use of agents, and organizing one's "business" (by incorporation or otherwise) to take advantage of limited liability or the tax laws. It may be significant whether the individual has a "chance of profit" or "risk of loss"; that is whether business acumen, sensitivity to the needs of the market, astute investment, innovation, or risk taking, yield a reward or financial loss.
The selling of one's services to the market generally. If the purchasers of individual's services are numerous and of diverse character, the individual looks more like an independent self employed person than an employee. If, on the other hand, an individual has a long standing and consistent relationship with one or a limited number of purchasers, he is more likely to be considered a "dependent" contractor or employee — especially if the circumstances or contractual relationship limit his ability to dispose of his skill to other purchasers, or his "prime customer" is given priority.
Economic mobility or independence, including the freedom to reject job opportunities, or work when and where one wishes. Of course, few independent contractors are entirely free in this regard, but the question is one of the degree. A "self-employed" person has more scope for choice than an employee or dependent contractor who must look for the bulk of his work opportunities to one or restricted number of sources with whom he has "tied his fortunes".
Evidence of some variation in the fees charged for the services rendered. This factor is less helpful when those services are standardized and the market is relatively competitive. In such circumstances, one would expect a uniform fee structure even if the individuals providing the services were doing so as "independent contractors", and individual employees may also bargain about their wage levels; however, the ability to bargain or fix the contract fee in accordance with the work or the purchaser's ability to pay, may indicate independent contractor or self employed status.
Whether the individual can be said to be carrying on an "independent business" on his own behalf rather than on behalf of an employer or, to put it another way, whether the individual has become an essential element which has been integrated into the operating organization of the employing unit. Integration in this sense usually presupposes a stable rather than a casual relationship and also involves the nature, importance and "place" of the services provided in the general operation of the employing unit. The more frequent the re-engagement or longer the duration of the relationship, the more likely the individual will be regarded as part of, or integrated into, the employer's organization. In the case of entertainers, the cases suggest that it may also be useful to determine the extent to which the artist's material or co-workers are influenced by the employer; that is, whether the artist is left to entertain in his own right, or whether his talents are moulded to conform with the employer's artistic vision or interests. Even an individual engaged for a short time may be considered "integrated" into the employer's operation in the manner of an employee, if he is required to devote the whole of his working time during the period to the service of the employer, promote its organization, or fill in his "non performing" time with unrelated ancillary duties. (See: Whittaker, supra.)
The degree of specialization, skill, expertise or creativity involved. If these are dominant element in the relationship, the control test becomes less useful as an indicator of employee status, and in the absence of "integration" into the respondent's organization, the disputed individual is "self-employed" professional.
Control of the manner and means of performing the work — especially if there is active interference with the activity. However, it is the right to interfere rather than the ability to do so which is significant. The fact that a particular occupation involves technical skill, putting control of the details beyond the capacity of the employer, does not preclude a skilled employee from being so regarded, since the right to control may exist even though the ability to do so does not. Similarly, the power to discipline, withhold rewards, or terminate the relationship at will and without cause may indicate an employment relationship whether or not the employer exercises this power.
The magnitude of the contract amount, terms, and manner of payment. If the financial terms of the relationship approximate wages (for example, if deductions are made for income tax or other benefits are provided or if an individual is paid by the hour rather than the result) an employment relation-ship may be indicated. The magnitude of the contract amount can sometimes be significant, (although sports celebrities and professionals may be very highly paid yet still be "employees"; and independent professionals may charge an hourly rate rather than a block fee).
Applying those features to the facts of this case, the Board finds that these persons are not independent contractors.
While these individuals supply some of their own tools, they also work with the tools provided by the Responding party. None of the workers exhibited the traditional indicia of entrepreneurial activity. They did not incorporate businesses to carry out the stage hand work; they did not have business cards or advertise their services. Kevin McArthur and Bernie Lalonde both testified that that had performed similar work for other organizations. Rob Nardi's evidence was that while he did occasional work for other organizations, the majority of his time was spent working for the responding party.
Kevin McArthur testified that although he could hypothetically refuse to accept work offered if he was already working for another organization, that this had never occurred. Bernie Lalonde testified that when this had occurred in the past, he chose work at the responding party. Rob Nardi testified that he had an arrangement with the principal of the responding party, Claude Michel, that he would work on all the productions put on by the responding party.
Kevin McArthur and Bernie Lalonde are paid according to the "industry standard" for a minimum call-in period. There is no negotiation involved. Rob Nardi is paid a set rate of $150 per day/per show.
It cannot be said that any of the individuals are carrying on an "independent business" on his own behalf. Rather, they supply their labour on an as needed basis to assist in the responding party's enterprise of staging productions.
Kevin McArthur and Bernie Lalonde work under the direction and control of Rob Nardi, who reports directly to Claude Michel. While each of them exercises some degree of independence as a skilled employees, they are subject to the ultimate control of Claude Michel.
Although no deductions are currently made from the amounts they are paid approximate wages. None of the employees currently invoice or bill the responding party.
In light of all of the above, the Board concludes that the individuals in question are not independent contractors, but rather, employees. While the relationship between Kevin McArthur and Bernie Lalonde and the responding party is of an occasional nature, in the Board's view, this does not detract from our finding that they are employees.
The casual or occasional nature of the relationship between the employer and the individual does not preclude a finding that the person is an "employee". See Sack and Mitchell, Ontario Labour Relations Board Law and Practice (1985, Butterworth & Co. (Canada) Ltd. Toronto) at paragraph 3:3335 and the cases cited therein.
Accordingly, the Board concludes that the stage employees are employees of the responding party.
In the previous decision of the Board dated July 28, 1995, the Board found that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act and set out the appropriate bargaining unit, described in paragraph 2 above.
In accordance with the Rules of Procedure respecting applications for certification, the responding party has filed a list of employees in the bargaining unit together with some sample signatures for the employees on that list.
In support of its application for certification the applicant union filed documentary evidence of membership in the form of cards. The cards were signed by each employee concerned and indicate a day within the six month period immediately preceding the application date. The membership evidence is supported by a duly completed declaration verifying membership evidence.
The Board is satisfied on the basis of all the evidence before it, that more than fifty-five per cent of the employees of the responding party in the bargaining unit on June 13, 1995, the certification application date, had applied to become members of the applicant on or before that date.
A certificate will issue to the applicant.