International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 58, Toronto v. Ontario Place Corporation and MCA Concerts Canada
[1995] OLRB Rep. June 840
4539-94-R International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 58, Toronto, Applicant v. Ontario Place Corporation and MCA Concerts Canada, Responding Parties
BEFORE: Gail Misra, Vice-Chair, and Board Members R. M. Sloan and P. V. Grasso.
APPEARANCES: Thomas W. G. Pratt, James C. Fuller, Richard Karwat and William Hamilton for the applicant; Michael Fleishman and Lou Seiler for Ontario Place Corporation; James Knight and Martin Onrot for MCA Concerts Canada.
DECISION OF THE BOARD; June 30, 1995
1As noted in the Board's decision of May 12, 1995, this is an application made pursuant to section 64 of the Labour Relations Act. The applicant alleges that there has been a sale of a business, as defined by the Act, from Ontario Place Corporation to MCA Concerts Canada and that MCA Concerts Canada, as a successor employer, is therefore bound by a collective agreement between the applicant and Ontario Place Corporation. The applicant also claims that it is, as a result of the sale of this business, the exclusive bargaining agent for certain employees of MCA Concerts Canada.
2The preliminary issues upon which evidence was called and submissions made were as follows:
whether the applicant and Ontario Place Corporation had a collective bargaining relationship;
whether the applicant could hold exclusive bargaining rights for its members who worked for the Ontario Place Corporation since the Crown Employees Collective Bargaining Act apparently makes the Ontario Public Service Employees' Union the exclusive bargaining agent for all Ontario Place Corporation employees; and,
even if the Board finds the persons in question to be employees of the Ontario Place Corporation and that the applicant can be their exclusive bargaining agent, whether the document the applicant purports to be a collective agreement is a valid collective agreement between these two parties.
3Having heard evidence and submissions from the parties on the preliminary issues, the Board, with Board Member Grasso reserving, dismissed the application. These are our reasons for that decision.
THE FACTS
4There was no dispute about the facts in this case. The applicant ("IATSE", "Local 58", or the "union") called one witness to give evidence of the use of IATSE members at the Ontario Place Forum. The Forum was an open air live entertainment theatre operated in the summer season by the Ontario Place Corporation ("OPC") at Ontario Place. Following the 1994 summer season, the Forum was torn down and a new live entertainment amphitheatre was built by MCA Concerts Canada ("MCA") which was to be operated by MCA under the name of the Molson Amphitheatre. The union's claim before the Board was with respect to work performed by their members at this locale. There is at least one other stage at Ontario Place which we heard some reference to, however, that was not in contention at this hearing.
5The Ontario Place Corporation is a Crown Agency under the Ontario Place Corporations Act, R.S.O. 1990, c.O.34. Since the fall of 1994 the Crown in Right of Ontario has, through its agent the OPC, leased lands at Ontario Place to MCA for a 35 year period. It is upon these lands that the Molson Amphitheatre has been constructed. During the term of the lease the Molson Amphitheatre is to be operated by MCA with minimal control by, and without reliance upon, the OPC.
6Canadian Staging Projects ("CSP") is a company operated by IATSE, which apparently has a collective agreement with IATSE Local 58. Mr. Jim Fuller controls Canadian Staging Projects and is also the president of Local 58 of IATSE. From around May 1979 to September 1994 CSP supplied OPC with a Lighting Director and an Alternate Lighting Director for the Forum every summer. These individuals were members of IATSE Local 58. Mr. Karwat, the Lighting Director from 1979 to 1994, gave evidence on behalf of the union. He was paid by Canadian Staging Projects, which in turn billed OPC for Mr. Karwat's services, his alternate's services, and for any other personnel who may have been needed by OPC for television shoots. Mr. Karwat would contact the Local 58 Business Agent when such personnel were needed and the union's hiring hall would provide its members.
7For an unknown period prior to 1991, and continuing until 1994, three IATSE apprentice stage hands were a part of the production crew every summer at Ontario Place. The production crew was made up of eight Production Assistants: five summer students and the three IATSE apprentices, all of whom worked for the entire summer. The Production Assistants set up the stages and band equipment for all shows held at Ontario Place. All of the Production Assistants were paid by Ontario Place Corporation and their activities were directed by the Ontario Place Stage Manager. It is unclear whether any union dues or remittances were paid by the OPC on behalf of the apprentices to the applicant.
8In 1991 the OPC entered into an agreement with MCA to provide some bigger name shows at the Forum, and began to charge admission to such shows. Prior to 1991, the public was charged one admission price to Ontario Place in return for which the public could attend at all attractions at Ontario Place. After 1991, admission to Ontario Place was free, but the public had to pay to enter any particular attraction. This method of payment was known as the "open gate" policy.
9In a letter dated May 1, 1991, Mr. Lou Seiler, the Senior Manager of Programming, wrote to Mr. Fuller, to put in writing what appeared to have been discussed at a lunch the previous day. In the letter he said "As we agreed, our relationship with I.A.T.S.E. Local 58 will not change for this season while we 'test the waters', so to speak, with our new admissions policy in the Forum". On May 23, 1991 Jim Fuller, the president of IATSE and the person in charge of CSP, and Max Beck, the General Manager of the OPC entered into a letter agreement pursuant to which the OPC would hire four persons for Load In, six persons for Follow Spots (a lighting function), and four persons for Load Out, from Local 58 of IATSE. This staffing arrangement was only for those shows for which ticket prices of $20 for reserved seats, and $16 for lawn seating, would be charged. The letter indicates the rate to be paid to the persons hired, that the OPC would be responsible for payroll coordination, and for the payment of benefits and Workers' Compensation on behalf of the individuals who may work such shows. The OPC undertook to ensure that the three IATSE apprentices on the production crew would be scheduled to work on each of the performances for which the additional IATSE personnel were being hired. Subsequent letters confirmed the arrangements for the 1992, 1993, and 1994 seasons. Reference will be made to these letter agreements later.
10From 1991 to 1994 Mr. Karwat would receive a production schedule from Brian Bailey, the OPC Production Manager. This schedule would set out the times at which any show would be arriving at Ontario Place and when the show time was. Mr. Karwat would then contact the IATSE Business Agent to inform him of the concert and to indicate how many persons Mr. Karwat thought were required, within the confines of the letter agreement noted above. If there were to be any changes to the established number of persons required, Mr. Karwat would discuss such changes with Mr. Bailey, and then would inform the Business Agent of what staffing was needed. On two occasions Mr. Bailey contacted the IATSE hiring hall himself to arrange for additional persons to be sent. This only happened after Mr. Bailey had tried to find Mr. Karwat at home or at the CSP office, without success.
11Of the four persons needed for Load In and Load Out, Mr. Karwat would be considered one of those persons. The other three would be sent by the hiring hall to do Load In, Load Out, and Follow Spots. Three additional persons would be sent by the hiring hall to cover the remaining three Follow Spot positions. The Local 58 IATSE people sent to work at Ontario Place reported to Mr. Karwat, and he directed their work while they were at Ontario Place. Only if a visiting show had its own Lighting Director would Mr. Karwat simply assist that individual in setting up the lights, and the visiting Lighting Director would then also direct the Follow Spot operators during the show. Mr. Karwat would fill out payroll sheets for the persons working, with their hours, rates, and Social Insurance Numbers. He would sign the sheets and send them on to Brian Bailey. Mr. Karwat was paid for the work he did on these crews by OPC but for the Lighting Director work he continued to be paid by CSP. Mr. Karwat testified that the OPC paid the union a percentage of the hourly rate for RRSP contributions, vacation pay, and health benefits on his behalf. The letter agreement does not specify the details of these remittances, however, it appears that the union's benefit plan administrator wrote directly to the OPC and outlined what deductions and remittances had to be made since the union administered the benefit packages.
12Mr. Karwat worked five to seven evenings a week all summer at Ontario Place. He also worked during the days at the CSP office at 571 Adelaide Street East in Toronto where he was a shop foreman. At Ontario Place Mr. Karwat considered himself the shop steward for IATSE. He was told by the Business Agent for IATSE that he should take on this role. However, during his tenure at Ontario Place, there was never any problem wherein Mr. Karwat had to act as a shop steward. Between 1991 and 1994 no grievances were filed.
13From 1979 to 1994 Mr. Karwat's services were not overseen by any person at OPC and he was never disciplined or evaluated by anyone at the OPC. He was told what productions were to take place, but there was no direction of his work or that of those he directed on Load In, Load Out, or Follow Spots. If Mr. Karwat was absent for any reason, OPC would contact CSP for a replacement and the IATSE Business Agent would arrange for a person to attend at Ontario Place. IATSE would decide who the alternate was for Mr. Karwat.
14On two occasions Mr. Karwat voiced a concern when the OPC used its regular staff to augment those called in from IATSE to do Load In or Load Out. Significantly, he did not object because of anything in the letter agreement, but rather because he felt untrained persons did not know how to work efficiently and safely, as did the IATSE members, so that everyone's safety was jeopardized.
15The union operates a hiring hall. Employers, by various means, indicate to the Business Agent the number of persons they require and the Business Agent arranges to have that number of persons sent out. Persons are chosen for the jobs available off a roster of the members. The roster is a list of the members arranged by seniority.
16The June 11, 1992 letter agreement between the OPC and Jim Fuller, for the union, contains the following paragraph:
"As you have already indicated this agreement is for the 1992 season only and is without prejudice to future agreements that may be entered into."
Each subsequent letter agreement contained a similar paragraph, the only change being the year, to reflect the year the parties were referring to.
17In February 1995 Mr. Fuller, in his role as president of IATSE, wrote to Mr. Beck about a meeting the two of them were to have. In that letter Mr. Fuller wrote of the "relationship" between the OPC and Local 58, Local 58's "involvement" at Ontario Place, the "arrangements" which have developed over the years, and expressed his interest in exploring how those "arrangements might be expanded and developed in the upcoming season and beyond". Mr. Fuller indicated he was desirous of renewing their "current contractual arrangements" for the 1995 season and "to make any adjustments to those arrangements that the new situation requires". The "new situation" referred to was the presence of the new Molson Amphitheatre. There was no reference to a collective agreement, proposals for a new collective agreement, or any of the commonly used language of collective bargaining.
18On February 13, 1995, Mr. Fuller wrote to Mr. Martin Onrot, the Senior Vice President of MCA. He indicated his desire to meet with Mr. Onrot to work out terms of an agreement with MCA to enable the Local to continue to provide stagehands for the MCA productions. Mr. Fuller drew Mr. Onrot's attention to the "agreements" the Local had previously had with Ontario Place, and indicated he would be using those as the basis for discussions regarding terms of an "agreement" with MCA. Mr. Onrot replied by a letter of February 28, 1995, indicating that MCA had already entered into a long-term agreement with another organization to supply MCA with stage labour for the shows at the Molson Amphitheatre. Nowhere in these letters was there any suggestion that the union held bargaining rights for anyone at the OPC, or that the agreements referred to were collective agreements.
19As a result of discussions and correspondence between the parties it became clear to the applicant that Ontario Place Corporation would not be using its members at what had been the Forum, and that MCA was not going to use the applicant's members either as it had entered into its own agreement with another entity for the supply of stage hands. The present application was then made to the Board.
REASONS FOR DECISION
20With respect to the three apprentices who were hired by the OPC to work on the production crew for the summer, along with five other summer students, there is simply no evidence to indicate what their relationship was to the applicant. There is no evidence to indicate who these individuals were, and whether any remittances were made on their behalf to the union. There is also no evidence that the union negotiated on their behalf with the OPC with respect to wages and working conditions. The only reference made to them is in the letter agreements where the OPC said it would schedule the three apprentices to work on all the shows on which other Local 58 members would be working. There is therefore no evidence to establish that the applicant had an exclusive bargaining agent relationship with the OPC with respect to these individuals.
21Those persons who worked at the OPC but were paid through Canadian Staging Projects were not employees of the OPC. According to Mr. Karwat, it was CSP that had a collective agreement with the union, and when people were needed, Mr. Karwat, who worked through CSP, called the union hiring hall to arrange for persons to be sent out. By all appearances, this was a sub-contracting arrangement for the provision of technical services.
22The remaining category of individuals are those whom Local 58 provided directly to the OPC through the letter agreements of 1991, 1992, 1993, and 1994. It is noteworthy that the letter agreements with respect to these individuals were addressed to Mr. Jim Fuller, both in his capacity as the president of IATSE, and as the person responsible for Canadian Staging Projects, and were sent to the CSP office, not to the union's office. This suggests that, from the perspective of the OPC, the distinction between the two organizations was blurred. In addition, the letter of May 1, 1991, which appears to be the first correspondence after Ontario Place moved to an "open gate" policy, states that these parties agreed that OPC's relationship with IATSE would not change that season. Hence, even though OPC agreed to use some additional IATSE personnel in the presentation of higher-price ticket concerts, the parties were of the view that their fundamental relationship was not changing but that, because of the increasingly technical nature of the services required, the OPC would be sub-contracting more work to a company that used IATSE members.
23The evidence disclosed that the relationship did not change fundamentally. Mr. Karwat, the CSP contact at Ontario Place, called the hiring hall when IATSE members were needed for the scheduled bigger shows; the members were chosen by the union and sent to the Forum; and, they reported to Mr. Karwat and were directed by him except where a show had its own Lighting Director, who then directed the Follow Spot operators. Mr. Karwat prepared the documentation to support payment to these persons for their work. The only difference between the relationship of the OPC, the union and CSP before 1991 and since 1991 is that since 1991 the OPC has been paying the individuals directly, rather than being billed by CSP for their services.
24The Board notes that the work done by the IATSE members for the bigger shows was the same work which was done by members of the production crew for all of the other shows which were held at the Forum. There appears to have been no exclusivity of work for these IATSE members.
25The Board further notes that the parties agreed in 1992, 1993, and 1994 that the letter agreement reached in each respective year was for that season only, and was without prejudice to any future agreements which the parties may enter into. If these letters are supposed to be collective agreements, as the union argues they are, this is highly unusual language to include. The language used by the parties suggests that neither side thought it was bound to a collective agreement, but rather suggests they knew they were making seasonal arrangements that did not create any future obligations.
26We are not convinced that the union and the OPC ever intended to create a collective bargaining relationship. From the facts before us we are drawn to the conclusion that the OPC acted as a general contractor in relation to CSP, which acted as a sub-contractor to provide the general contractor with technical assistance in a specific area. The Ontario Place Corporation has the authority to sub-contract and it did so here. In 1991, the OPC decided, as a result of adding bigger name shows to its summer line-up, that it needed more technical help on the bigger shows. It therefore was seeking to extend its relationship with CSP. In that process the OPC contracted to use union personnel for some specific shows. This is not unlike a general contractor in the construction industry having a project agreement with a union to supply members of that union and the general contractor agrees to pay those persons union rates. Such agreements are not collective agreements, but are simply project agreements and no bargaining rights attach to such agreements.
27We are drawn to this conclusion because the letter agreements do not carry any of the usual language connoting a collective agreement, or even a memorandum of agreement reached in anticipation of the signing of a collective agreement. Indeed, the letter agreements seem to have been very carefully crafted to avoid any mention of employees, collective bargaining or of collective agreements. The term of the letter agreements was only for each season (May to September), even though the Labour Relations Act requires all collective agreements to have a term of at least one year (section 53). Given that the president of the union and the General Manager of the OPC were negotiating these agreements, it is reasonable to assume that these persons would be aware of this legislative provision. As mentioned earlier, the "without prejudice" provision is also at odds with common collective agreement construction.
28In Ainsworth Electric Co. Limited, [1993] OLRB Rep. Sept. 817, IATSE Local 58 (also the applicant in this case) was seeking a section 1(4) declaration that Ainsworth Electric Co. Limited and the Stadium Corporation of Ontario (which leases the Skydome Stadium) were carrying on associated or related activities or businesses. In that case IATSE did have a collective agreement with Ainsworth Electric, which contained a lengthy "Recognition and Jurisdiction" clause. The Board found that although Ainsworth and the Stadium Corporation had had a contractual agreement for some years, IATSE had never previously asserted that the two were one employer for labour relations purposes. The Board held that the union was seeking to extend its bargaining rights to the employees of a separate employer whom it had never previously sought to represent and dismissed the application.
29It is apparent that this union does have collective agreements with employers; it just did not have one with the Ontario Place Corporation. We are bolstered in our conclusion by our reading of the letters sent by the president of the union to the General Manager of the OPC and to Mr. Onrot of MCA in February 1995. Nowhere in those letters is there any suggestion that negotiations for a new collective agreement are being opened. In the letter to Mr. Beck, of the OPC, Mr. Fuller wrote of "contractual arrangements", and about expanding and developing those arrangements. In the letter to Mr. Onrot, Mr. Fuller indicated he wished to "work out the terms of an agreement with MCA", and drew Mr. Onrot's attention to previous "Agreements with Ontario Place". There was no mention to Mr. Onrot of having had a collective bargaining relationship with the OPC, or of wishing to open negotiations for a new collective agreement. It seems reasonable to us that if the union had believed it had bargaining rights at the OPC it would have put what it now claims is the successor employer on unequivocal notice that it was seeking to enforce those rights. It did not do so.
30Pursuant to the general powers and duties section of the Ontario Place Corporation Act, section 9, the Corporation has the power to:
9(1).
(c) to make agreements with persons with respect to the establishment or operation by them of any works or services in connection with Ontario Place;
31Thus it would seem that the OPC has the power to make agreements with persons for the provision of services in connection with the running of Ontario Place. Based on our review of the evidence led before this panel we find that the OPC did just that: It made an agreement with Mr. Fuller for the provision of services to the Ontario Place Forum when it had need of the technical specialized services which Mr. Fuller's members were capable of supplying. This finding is consistent with the evidence that Mr. Bailey would inform Mr. Karwat, an IATSE member and CSP employee, that he would need certain personnel for a particular show. Mr. Karwat would contact the hiring hall and convey the specific needs and times that persons would be required. Thereafter, Mr. Bailey would have nothing more to do with the matter except to ensure that whoever worked got paid. The persons sent reported to Mr. Karwat and were directed by him. They were not evaluated or in any way supervised by the OPC, but rather, acted as the professionals they were bringing technical skills to the Forum for specific shows at a specific price.
32The Board therefore found that there was no collective bargaining relationship between IATSE and the OPC. Although the parties had made other arguments in support of their respective positions, having made the finding we did, we do not propose to address the other arguments made. For the reasons outlined above, the Board dismissed the application.
33Shortly after the hearing, the Board, with Board Member Grasso reserving, issued a bottom-line decision dismissing the application. Having had a full opportunity to assess all the evidence and submissions of the parties, Board Member Grasso now concurs with the decision.