International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 58, Toronto and T.C. Sclocco v. Crocodile Labour Services Inc., 1997 CanLII 15502

Ontario Labour Relations Board

Citation: [1997] OLRB Rep. September/October 832

Board File Nos.: 3829-95-U; 4029-95-R; 4039-95-R; 0675-96-U

Applicants: International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 58, Toronto and T.C. Sclocco Responding Parties: Crocodile Labour Services Inc., MCA Concerts Canada Intervenor: Victoria M. Desroches

Applicants: International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 58, Toronto Responding Party: Crocodile Labour Services Inc.

Applicants: International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 58, Toronto Responding Parties: Crocodile Labour Services Inc., and MCA Concerts Canada Intervenor: Victoria M. Desroches

Appearances: John R. Evans and James Fuller for the applicant union John Barrack and Brian Low for Crocodile Labour Services Inc. Jainie Knight, Kristin Taylor and Paul Corcoran for MCA Concerts Canada

Before: Janice Johnston, Vice-Chair.

Decision of the Board; October 9, 1997

1. Board File No. 4029-95-R is an application for certification. Board File No. 4039-95-R is an application pursuant to section 1(4) of the Labour Relations Act, 1995 (the "Act") and Board File Nos. 3829-95-U and 0675-96-U are unfair labour practice complaints filed pursuant to section 96 of the Act. On agreement of the parties, a representation vote has not been held in the application for certification.

2. These matters have been the subject of several decisions by differently constituted panels of the Board. With the agreement of the parties, these matters were put before me to deal with one specific issue.

3. At the hearing on this matter, the parties filed the following Agreed Statement of Facts and Issue.

AGREED STATEMENT OF FACTS AND ISSUE

FACTS

1. The Union applied for certification on February 20. 1996.

2. At the time of the application for certification ("the application"), no employees were working for Crocodile at the Molson Amphitheatre. The Molson Amphitheatre is a seasonal operation which commenced its 1995 season in May and concluded its season in September. The normal season is from May until September each year and accordingly the 1996 season was due to commence in May.

3. The last day on which work was performed by employees of Crocodile prior to the application, falling within the scope of the bargaining unit which the Union seeks to represent, was on or about October 6, 1995. The vast majority of those employees were not given notice of termination by Crocodile nor were they provided with a Record of Employment stating that they were no longer employed.

4. Attached hereto and marked as Exhibits "16" and "17" are the Contracts for Services between Crocodile and Universal which governed their relationship for the years 1995 and 1996. An agreement for the 1996 season was reached on May 5, 1996.

5. The next date following the application on which work was performed by employees of Crocodile, falling within the scope of the bargaining unit which the Union seeks to represent, was in May 1996.

6. For purposes of the within preliminary motion only and without any admission of liability by the respondents, the parties agree that the Board should assume that the material facts pleaded by the Union in Board File Nos. 3829-95-U, 4029-95-R, 4039-95-R, 0675-96-U are true and accurate.

ISSUE

7. Should the application be dismissed given that there were no employees of Crocodile actually performing work, falling within the scope of the bargaining unit which the Union seeks to represent, on February 20, 1996 which date fell within the October-May off season at the Molson Amphitheatre, and/or given that there was no assurance as of that date that Crocodile would have any employment to offer within the scope of the bargaining unit for the 1996 season?

8. At the outset of the hearing, the parties were in agreement that this issue would be decided on the basis of the agreed statement of facts and the pleadings of the union. No one sought to call viva voce evidence.

9. The applicant, the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 58 (the "union" or "IATSE") is a trade union pursuant to section 1(1) of the Act. IATSE is a craft union pursuant to section 9(3) of the Act which represents, amongst others, stagehands. MCA Concerts Canada ("MCA") is a corporation which owns, maintains, operates and manages the Molson Amphitheatre, a large open-air concert venue located at 909 Lakeshore Boulevard West, Toronto, commonly known as Ontario Place. The responding party, Crocodile Labour Services Inc. ("Crocodile" or the "employer") is a supplier of labour services at the Molson Amphitheatre. Specifically, Crocodile employs and supervises persons who have skill and experience as stage hands and in performing related labour. A review of the contracts for services referred to in paragraph three of the agreed statement of facts indicates that at the time of the application for certification, on February 20, 1996, MCA and Crocodile were bound to a contract which was intended to set out the terms and conditions that would govern the supply of labour by Crocodile to MCA, and the fees to be paid for the labour which is supplied.

10. Accordingly, the issues before me are:

(a) whether or not there were any individuals with an employment relation­ship with Crocodile; and

(b) is it a requirement in this industry that there be more than one employee actually performing bargaining unit work on the application date.

7. The relevant sections of the Act are section 7(1), (12), (13), (14), section 8 and section 9, which read as follows:

8. (I) Where no trade union has been certified as bargaining agent of the employees of an employer in a unit that a trade union claims to be appropriate for collective bargaining and the employees in the unit are not bound by a collective agreement, a trade union may apply at any time to the Board for certification as bargaining agent of the employees in the unit.

(12) The application for certification shall include a written description of the proposed bargaining unit including an estimate of the number of individuals in the unit.

(13) The application for certification shall be accompanied by a list of the names of the union members in the proposed bargaining unit and evidence of their status as union members, but the trade union shall not give this information to the employer.

(14) If the employer disagrees with the description of the proposed bargaining unit, the employer may give the Board a written description of the bargaining unit that the employer proposes and shall do so within two days (excluding Saturdays, Sundays and holidays) after the day on which the employer receives the application for certification.

8. (1) Upon receiving an application for certification, the Board may determine the voting constitu­ency to be used for a representation vote and in doing so shall take into account,

(a) the description of the proposed bargaining unit included in the application for certification; and

(b) the description, if any, of the bargaining unit that the employer proposes.

(2) If the Board determines that 40 per cent or more of the individuals in the bargaining unit proposed in the application for certification appear to be members of the union at the time the application was filed, the Board shall direct that a representation vote be taken among the individu­als in the voting constituency.

(3) The number of individuals in the proposed bargaining unit who appear to be members of the trade union shall be determined with reference only to the information provided in the application for certification and the accompanying information provided under subsection 7(13).

(4) The Board shall not hold a hearing when making a decision under subsection (1) or (2).

(5) Unless the Board directs otherwise, the representation vote shall be held within five days (excluding Saturdays, Sundays and holidays) after the day on which the application for certification is filed with the Board.

(6) The representation vote shall be by ballots cast in such a manner that individuals expressing their choice cannot be identified with the choice made.

(7) The Board may direct that one or more ballots be segregated and that the ballot box containing the ballots be sealed until such time as the Board directs.

(8) After the representation vote has been taken, the Board may hold a hearing if the Board considers it necessary in order to dispose of the application for certification.

(9) When disposing of an application for certification, the Board shall not consider any challenge to the information provided under subsection 7(13).

9. (1) Subject to subsection (2), upon an application for certification, the Board shall determine the unit of employees that is appropriate for collective bargaining, but in every case the unit shall consist of more than one employee and the Board may before determining the unit, conduct a vote of any of the employees of the employer for the purpose of ascertaining the wishes of the employees as to the appropriateness of the unit.

(2) Where, upon an application for certification, the Board is satisfied that any dispute as to the composition of the bargaining unit cannot affect the trade union's right to certification, the Board may certify the trade union as the bargaining agent pending the final resolution of the composition of the bargaining unit.

(3) Any group of employees who exercise technical skills or who are members of a craft by reason of which they are distinguishable from the other employees and commonly bargain separately and apart from other employees through a trade union that according to established trade union practice pertains to such skills or crafts shall be deemed by the Board to be a unit appropriate for collective bargaining if the application is made by a trade union pertaining to the skills or craft, and the Board may include in the unit persons who according to established trade union practice are commonly associated in their work and bargaining with the group, but the Board shall not be required to apply this subsection where the group of employees is included in a bargaining unit represented by another bargaining agent at the time the application is made.

(4) A bargaining unit consisting solely of professional engineers shall be deemed by the Board to be a unit of employees appropriate for collective bargaining, but the Board may include professional engineers in a bargaining unit with other employees if the Board is satisfied that a majority of the professional engineers wish to be included in the bargaining unit.

(5) A bargaining unit consisting solely of dependent contractors shall be deemed by the Board to be a unit of employees appropriate for collective bargaining but the Board may include dependent contractors in a bargaining unit with other employees if the Board is satisfied that a majority of the dependent contractors wish to be included in the bargaining unit.

Argument

8. What follows is a very abbreviated version of the submissions made by the parties. Much of the argument was made in the alternative, and given the basis upon which I am going to determine this matter, it is not necessary to set it out in detail.

9. Counsel on behalf of MCA proceeded first in argument. Counsel argued that there are two routes open to the Board to follow in dealing with these issues. The first route he referred to as the "section 8" route. Counsel argued that after reviewing all of the materials filed, which included the agreed Statement of Facts, the Board should conclude pursuant to section 8(2) that as there were no employees in the bargaining unit, the union could not have forty per cent support. As there were no "employees" in the bargaining unit, it is not appropriate for the union to apply to become their bargaining agent.

10. The second approach urged upon me by counsel for MCA revolved around an interpretation of section 9 of the Act. Pursuant to section 9(1) of the Act, counsel suggested that the application for certification should be dismissed because the union failed to establish that there is an appropriate unit for collective bargaining, as at the time the application was filed there was not more than one employee in the bargaining unit. Counsel pointed out that the last day of work for the employees occurred in October, 1995. On the application date, there were no employees employed at the Molson Amphitheatre and no employees returned to work until May, 1996. At the time the application was filed, MCA and Crocodile had not signed a contract for the provision of stagehands for the 1996-1997 season. Accord­ingly, as there were no employees on the application date, the Board ought to dismiss the application for a failure to meet the requirements of section 9(1).

11. In the final alternative, counsel for MCA argued that if the Board was not prepared to decide the issue based on the analysis outlined above, which he referred to as the "broader approaches", then the Board should apply the reasoning utilized by the Board in Theatrecorp Ltd., [1992] OLRB Rep. March 388. Counsel pointed out that the Theatrecorp case picked up the approach utilized by the Board in dealing with applications for certification in the construction industry. In an application for certification in the construction industry, the Board looks to the number of employees who were actually performing bargaining unit work on the date of the application. Counsel suggested that the logic behind the adoption of the policy for the construction industry was the same as in the case before me. In support of his argument, counsel referred the Board to: Theatrecorp Ltd., supra; Mel Evans Electric Div. of 1136234 Ontario Limited, [unreported] decision dated November 27, 1996; Milnes Fuel Oil Ltd., [1969] OLRB Rep. Oct. 847; Cooper Construction Company Limited, [1982] OLRB Rep. Aug. 1152; Meridian Building Group Ltd., [1974] OLRB Rep. July 444; Brown Boveri Howden Inc., [1987] OLRB Rep. March 316; F. Mohr Construction Inc., [unreported] decision dated January 20, 1997; Donvan Services Ltd., [unreported] decision dated May 7, 1997.

12. Counsel for Crocodile started his submissions by agreeing with the approach articulated by counsel for MCA. He suggested that pursuant to section 9(1) the Board was required to determine whether there was more than one employee in the appropriate bargaining unit. In reaching a determina­tion as to whether or not there were "employees" in the bargaining unit, the Board is required to determine whether there are any individuals in an employment relationship with the employer. Counsel agreed that in the industrial sector the Board has defined individuals to be in an employment relationship with an employer even if they are absent from the workplace at the time of the application for certification, as long as there is a reasonable expectation that they shall return to work. However, counsel pointed out that the jurisprudence demonstrates that there are no situations in which the Board has granted an application for certification which has been brought for a "seasonal operation" in a period of time when the seasonal operation was not ongoing and no employees were working.

13. In this case, counsel for Crocodile argued that there were no individuals in an employment relationship as there was no reasonable expectation that persons who had been employed in October, 1995 would return to work the following year. No one worked after October, 1995, which was four months prior to the application date. In support of his assertion that there were no employees in the bargaining unit, counsel also pointed out that although Crocodile and MCA had a contractual relation­ship that extended from March 1, 1995 to February 29, 1996, there was no certainty that this contractual relationship would continue for 1996-1997. As the contract between Crocodile and MCA did not come into effect until May, 1996, at the time of the application for certification there was no guarantee that any of the employees who had worked for Crocodile in 1995 would have a job to return to in 1996.

14. Counsel argued that as the Molson Amphitheatre was covered with snow when the applica­tion for certification was filed, from a policy point of view, the Board needs to consider what is the appropriate time to file an application for certification in this industry. Counsel urged the Board to follow the reasoning in the Theatrecorp case and come to the same conclusion reached in that case, that those eligible to vote in a representation vote will be those employees who were at work in the bargaining unit on the application date. In this case, as there was no one at work on the date of the application, it should be dismissed. In support of his argument, counsel referred the Board to Burns International Security Services Limited, [1996] OLRB Rep. Mar/Apr. 192; SGS Supervision Services Inc., [1982] OLRB Rep. Jan. 105; Rix-Athabasca Uranium Mines Limited, [1961] OLRB Rep. July 127; Pilkington Glass Limited, [1970] OLRB Rep. Aug. 566; Canadian Linen Supply (Ontario) Limited, [1965] OLRB Rep. Oct. 467; Janiti Building & Civil Works Ltd., [1970] OLRB Rep. July 470.

15. Counsel for the union agreed that there were no employees working at the Molson Amphi­theatre on the date of the application for certification. However, he disagreed with the assertions of counsel for MCA and Crocodile that there were no "employees" on the application date. In his view, there were individuals in an employment relationship with Crocodile on the application date, as they had a reasonable expectation that they would return to work when the season started in May, 1996. Counsel for the union argued that it was not relevant whether or not individuals were actually at work on the application date. The Board in this case should determine whether or not there were individuals in an employment relationship with Crocodile on the application date. In reaching a conclusion on this question, the Board should look at whether or not there was a reasonable expectation that various individuals would return to work for Crocodile in the 1996 season.

16. Counsel for the union argued that the Board should not follow the reasoning in the The­atrecorp case as it should not be applied in the circumstances of this case. He pointed out that the facts in this case are quite unique and that the rationale in the Theatrecorp case was inapplicable. In this case, in counsel's view, it was not appropriate to apply the policy articulated in Theatrecorp, as had the union waited until the season commenced in May, it would have faced arguments from MCA and Crocodile that the application should be dismissed for delay. In support of his argument, counsel referred the Board to Smiths Construction Limited, [1984] OLRB Rep. March 521 and Calvano Lumber and Trim Co. Limited, [1989] OLRB Rep. Apr. 337.

17. In response, counsel for MCA reiterated his position that as there were no employees in the bargaining unit on the application date, pursuant to section 9(1) of the Act, this application should be dismissed. In the alternative, should the Board conclude that there were individuals with an employment relationship on the date of application, the Board should dismiss this application pursuant to the reasoning set out in the Theatrecorp case. Clearly, there were no employees at work on the application date; therefore, counsel submitted that this application for certification should be dismissed. In his view, the Theatrecorp case was not distinguishable from the case before me.

Decision

18. After having given this matter a great deal of consideration, I am of the view that I simply do not have enough facts to determine whether or not there were individuals who had an employment relationship with Crocodile on February 20, 1996. Although I do have some facts, what gives me concern, amongst other things, is the lack of any historical perspective or past practice in this case. I do not know, for example, how many individuals return, year after year, to employment with Crocodile, or whether the workforce changes from year to year. As I cannot answer these questions, I cannot determine whether there is any continuity of employment from year to year or even day to day. The facts agreed to by the parties are extremely limited and the union's pleadings do not provide assistance with this question. Accordingly, based on the limited information I have, I cannot determine whether or not there were any individuals with an employment relationship with Crocodile. In order to do so, it would be necessary to hear further from the parties.

19. However, this does not end the matter. As was suggested by the parties, there is a narrow basis upon which this application can be determined, namely by answering the question "Is it a requirement in this industry that there be more than one employee actually performing bargaining unit work on the application date?". For all of the reasons which follow, the answer to the above-framed question is "Yes". For the purposes of answering this question, I am prepared to assume, clearly without finding, that Crocodile did have employees on the application date.

20. As a starting point, it is essential to stress that this is not the first case to deal with this question. In the Theatrecorp case, supra, the question was answered in the affirmative. Although counsel for the union sought to distinguish the case before me on the basis that we are dealing with live music shows in this case, whereas in Theatrecorp the Board was dealing with live theatrical productions, I am of the view that it is a distinction without a difference. The production requirements of a live musical show or a live theatrical show are similar in that both require, for example, staging and lighting. Both create a similar employment context for stagehands. Accordingly, while the facts may or may not have been somewhat different in the Theatrecorp case, the general observations of the Board with regard to this industry which were made in Theatrecorp are equally applicable to the case before me. The Board in Theatrecorp stated:

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 administer 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....

21. In reviewing the limited facts before me, it is clear that in this case the work is seasonal and transitory in nature. The Molson Amphitheatre is open annually from May to September. From October to April the facility is closed. During the period in which the facility is closed, the individuals who were employed in the previous season are free to pursue other employment opportunities. This type of transitory work bears a significant similarity to the construction industry, some of which is exclusively seasonal, as contrasted to what the Board loosely refers to as the "industrial sector" which predomi­nantly refers to operations which run on a year-round basis. In the industrial sector, the nature of the work is generally more permanent and less transitory than in the construction industry. While it may very well be that the workforce in this industry and in particular at this venue is not as transitory as the construction industry, it is also obviously not as stable as a year-round industrial or commercial enterprise. This industry generally lies somewhere in the middle on the continuum which has the "industrial" sector at one end and the "construction" sector at the other. However, in my view, it is more analogous to the construction industry than the industrial sector.

22. Although the facts with regard to the relative permanence of employment at this venue vis a vis other venues in this industry is not as clear as it could have been, there is no reason to conclude that employment at this venue is any less or more transitory than any other venue in this industry. However, even if employment at the particular venue at issue in this case was slightly more or slightly less transitory than at others, I agree with the observation in Theatrecorp that it makes sense to adopt a bright line test that will be consistently applied in this industry. Based on the Board's labour relations experience, I am prepared to take judicial notice that this industry can be both seasonal and transitory in nature and as already noted more akin to the construction industry than the industrial sector.

23. In addition, for a variety of other reasons, it makes sense to require trade unions seeking to represent employees working in this industry to apply for certification while the venue is operating. In the "off-season" or when the theatre is "dark", especially in this case when the application for certification was made four months after the last day worked, the Board will inevitably be faced with the difficult task of determining which individuals have an employment relationship with the company and which individuals do not. This type of litigation, depending on the extent of the disagreement, can be extremely time-consuming and expensive. If there is any lengthy delay determining the eligible voters, another season or another show could commence and in all likelihood the workforce could change significantly. If the trade union no longer has the requisite support, it may be difficult to win the representation vote and even if it is successful in that endeavour, the union may find that the bargaining rights will be difficult to maintain. In addition, on a purely practical note, if the vote is to take place during the off-season or when the venue is not operating, it could be difficult to simply locate potential voters and could result in the Board being unable to meet the five-day vote requirement in the Act.

24. Accordingly, for all of these reasons, it makes sense to have a bright line test in this industry which, as in the construction industry, focuses on the application date as the relevant date for determining who is eligible to cast a ballot. It has been noted in decisions involving construction industry applications for certification that although on occasion it may appear to work an unfairness on the trade union to have such a rigid approach to determining who is eligible to vote, ultimately the union is in control of the application date. The same is true for this industry. Therefore, in this industry, in order to be eligible to vote in a representation vote, an individual must be an employee of the employer and be at work in the bargaining unit on the date of application.

25. As there were no employees performing bargaining unit work on the application date in this case, the application for certification is dismissed. The parties did not address the issue of the imposition of a bar in the event that the application for certification was dismissed. As such, it is not appropriate for me to deal with this issue and it can be dealt with if and when it becomes necessary to do so should the union initiate another application for certification.

26. The applicant is directed to advise the Board and the other parties within 15 days of receipt of this decision concerning how it wishes to proceed with the unfair labour practice complaints and the related employer application.

27. I am not seized of this matter.