[1999] OLRB REP. NOVEMBER/DECEMBER 969
1657-99-R International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, Local 58, Applicant v. Canadian Opera Company, Responding Party
BEFORE: Brian McLean, Vice-Chair.
APPEARANCES: Bernard Fishbein and James Fuller for the applicant; Richard J. Charney, Cathryn Gregor and Bruce McMullan as the responding party.
DECISION OF THE BOARD; December 15, 1999
This is an application for certification.
By Order of the Board dated September 13, 1999 a representation vote was directed to be held and in fact was held on September 15, 1999. All twenty employees of the responding party, the Canadian Opera Company (the "COC"), who cast a ballot, voted in favour of representation by the applicant ("Local 58" or the "union").
Both prior to and after the representation vote, the COC took the position that this application ought to be dismissed as an abuse of the Board's process or in the alternative delayed as a result of a build up in the responding party's workforce. In the further alternative, the COC asserted that any certificate issued by the Board be confined to locations where the responding party's employees were actually working on the application date.
A hearing into the responding party's arguments was held on October 13, 1999.
The Facts
The parties agreed to all but one of the facts relevant to the application. Therefore, no witnesses were called. With respect to the fact in dispute, the parties agreed to the testimony that would have been given about that fact had a witness been called and asked me to make a finding of fact based upon the agreed testimony.
The COC is a producer of operas. It currently puts on operas at the Hummingbird Centre in Toronto. It also occasionally uses facilities at Harbourfront when it puts on smaller performances. In addition, the COC uses two facilities, 185 Melita Avenue and the Imperial Oil Opera Centre at 237 Front Street East in Toronto (the "rehearsal facilities") to design and prepare sets and to rehearse.
The Hummingbird Centre has a collective bargaining relationship with Local 58. Under the collective agreement between the parties anyone who uses the Centre must use stagehands selected from the Local 58 hiring hall. Therefore, when the COC puts on performances at the Hummingbird Centre the COC uses Local 58 stagehands employed by the Hummingbird Centre.
When the COC requires stagehands to design and create sets and props and to assist with rehearsals at the rehearsal facilities it requests Local 58 to provide it with stagehands from Local 58's hiring hall. Although it is not bound to a collective agreement with Local 58, the COC pays the stagehands it employs wages in accordance with the rates found in a collective agreement (It was not clear which collective agreement's rates apply).
The COC also occasionally puts on performances at Harbourfront Centre. On these occaÂsions the COC does not use stagehands referred by Local 58's hiring hall. Local 58 used to enjoy bargaining rights at the Harbourfront Centre but those rights were deemed abandoned by the Board.
For several years the COC has desired that an opera house be built which would be dedicated to opera performances and which would be the permanent home of the COC. Attempts to have the facility built with public money were unsuccessful. More recently the COC has been planning to build a facility through primarily private means. The COC has identified a vacant property in downtown Toronto which is owned by the province of Ontario. The province has agreed to sell it the COC provided that the COC has a realistic prospect of obtaining the financing necessary to construct an opera house.
The COC has taken certain steps to ensure that its opera house is built. The COC engaged an architect who has produced a design for the facility. The COC has 30 million dollars in pledges out of a total of 85 million dollars it estimates it needs to complete the project. The COC needs to raise an additional 15 million dollars in pledges by December 19, 1999 or financing in order to close the transaction with the government and commence construction. If everything goes according to plan the opera house will open in the fall of 2002.
In the mid-summer of 1999 Local 58 went to the COC and asked whether the COC would, once the new opera house was constructed, continue to use stagehands referred from local 58's hiring hall. There was apparently no response. In August, 1999 the union once again asked the COC whether the existing arrangement would continue at the new opera house. The COC advised Local 58 that although they might decide to use stagehands referred through local 58's hiring hall they could make no guarantees in this regard.
Local 58 sought legal advice and shortly thereafter filed this application for certification. The parties agreed that a representative of Local 58 would have testified that among the reasons for filing the application were to obtain bargaining rights for the new opera house, to bring certainty to the existing relationship, and to give stagehands access to the full realm of collective bargaining rights.
The COC took the position that this application ought to be dismissed as an abuse of process or in the alternative that any certificate which the Board issues ought to be restricted to the rehearsal facilities where the COC currently employs stagehands.
Decision
The COC's first argument was that this application ought to be dismissed as an abuse of the Board's process. The COC asserted that the real reason for this application was not to obtain bargaining rights for the COC's existing stagehands, who already are hired through Local 58's hiring hall and who are paid collective agreement wage and benefit rates. Instead, the COC asserts that the purpose of this application is to obtain bargaining rights for employees at the new opera house when it is built. The COC argues that such a purpose is contrary to the purposes of the Labour Relations Act because it is an attempt to skirt the normal certification procedures, including the requirement that a secret ballot representation vote be held among employees.
Assuming that the Board has the power to dismiss an application for abuse of process, I am unable to accept the COC's argument that this application ought to be so dismissed. The COC's argument completely ignores the interests of the individuals who matter most in an application for certification: the employees. The fact is that all of the COC's current complement of employees voted in favour of representation by the applicant. If I were to accept the COC's argument, the COC's employees would be denied union representation altogether until the opera house is completed, if it is completed at all.
Moreover, even if Local 58's application is partially (as it obviously is) or even entirely motivated by a desire to represent employees at the new opera house that does not mean that this application is an abuse of process. Unions apply to represent employees (and employees desire union representation) for many reasons. A desire to expand employment opportunity is a perfectly legitimate reason to seek certification under the Act. Unions have an interest in representing employees of employers that are growing. The union is also entitled to apply for certification to formalize its existing relationship with the COC and to attempt to ensure that jobs at the existing facilities are not moved to the new opera house. The fact that the COC has no plan to do this does not mean that it will not happen. (It is not difficult to imagine that an organization hard pressed for funds, as the COC is, might want to consolidate the number of locations it has.) Therefore even if the union's primary motivation for this application was the one suggested by the COC there is no abuse of the board's process. Local 58 is therefore entitled to bring this application.
The COC's alternative argument was that if the Board were inclined to certify Local 58 any such certificate should be restricted to the rehearsal facilities.
The Board has commented on numerous occasions about the criteria it takes into considerÂation in determining an appropriate bargaining unit. In The Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, the Board stated the following which is the starting point for any discussion about the appropriate bargaining unit:
- We might make an additional but related observation. We are troubled by the fact that a largely administrative and policy-laden determination has mushroomed in some cases into an elaborate, expensive, and time-consuming process for deciding a relatively simple question: does the unit which the union seeks to represent encompass a group of employees with a sufficiently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer. In this case, for example, the process of bargaining unit determination has already taken up more than a year and, fifteen days of hearing, with the prospect of many more. (Kidd Creek is still pending before the Board after eighteen months and about a dozen hearing days.) That delay may be seriously prejudicial to the applicant union, even if its position is ultimately accepted, and, in the instant case, it will undoubtedly be of concern to the large number of employees who support the union but whose rights remain in limbo until this Board determines the group of their fellow employees with whom, by law, they must bargain. It is also a matter of concern to that group of employees whom the union does not seek to represent, and who may not wish to be represented, but who the Hospital says must be included in the unit. They may well have some difficulty understanding why they should be swept into the ambit of collective bargaining against their wishes and despite the union's express position that it does not seek to represent them. Having regard to the purpose of section 6(1) one might well ask whether the resolution of the issues in dispute here really justifies the cost and potential prejudice. To put the matter more concretely: are the distinctions which the parties urge upon us significant from a labour relations perspective; or are they like the distinctions among paramedical employees considered by the Board in Stratford General Hospital - real, and to them important, but not determinative when it comes to drawing a workable bargaining unit.
- In addition to the Board's tendency to find the unit applied for to be appropriate unless it creates serious labour relations problems, the Board favours municipal-wide units. As the Board stated in York Steel Construction Limited, [1980] OLRB Rep. Feb. 293 at page 295:
- The Board in Wix Corp. Ltd., [1975] OLRB Rep. Aug. 637 canvassed in some detail the Board's practice with respect to defining geographic limitations in the appropriate bargaining unit. Apart from the construction and perhaps certain service industries, the Board's policy, where the employer has employees at only one location within a municipal area, is to describe the bargaining unit in terns of the municipality itself (Perimeter industries Limited, [1973] OLRB Rep. March 174). On ALOa5iorA the Board will expand its definition of the bargaining unit to encompass an area greater than a single municipality (see The Board of Health of the York-Oshawa District Health Unit,[1969] OLRB Rep. Feb. 1178; The Adams Furniture Company Limited, [1975] OLRB Rep. June 491; and note as well the Board's normal unit of the Municipality of Metropolitan Toronto), but is reluctant to do se to the absence of compelling reasons (Wittich 's Bread Limited, [1969] OLRB Rep. Jan.. 1019: Del Zotto, [1972] OLRB Rep. June 637 and Canada Safeway Limited, [1972] OLRB Rep. Mar. 262). The primary reason for this policy of municipality-wide bargaining units is the Board's concern for stability of bargaining rights: i.e. the unions bargaining rights will not be affected by a subsequent move of the employers operation to some other location within the same municipality. On the other hand, actual accretions to the employer’s operations within the municipality, such as a second or third plant. will automatically be covered by the union's certificate.
To this latter extent, the right of self-determination of a bargaining agent by the employees at these new locations is compromised, in favour of the over-riding concern for stability of bargaining units.
The COC's primary argument for restricting the bargaining unit to the rehearsal facilities was that the Board ought to follow an alleged industry wide practice which, the COC asserts, restricts bargaining rights to "house units".
The COC provided the Board with eight collective agreements between Local 58 and various employers in the live entertainment industry. The COC argued that all of the agreement provided are restricted to the performance house. Local 58 disputed this assertion, arguing that the recognition clauses of many of the agreements were not so narrowly defined and in many cases could be construed as "province wide" recognition clauses. For the purposes of this decision I assume, without finding, that the COC is correct and that the eight agreements provided are all "house specific".
The first problem with the COC's argument is that is unclear whether the eight collective agreements presented represented most of the collective agreements in the "industry". The COC asserted that there were 12 collective agreements in total, a figure which Local 58 was not prepared to agree to. I note that the number of collective agreements in the industry was not one of the agreed facts presented at the start of the case. Given the absence of agreement about the number of collective agreements in the industry it is difficult for the Board to come to any conclusion about an industry practice.
A second problem with the COC's argument is that even with respect to collective bargaining relationships of which the Board is aware, it is apparent that there is no consistent industry practice. In the case of the Harbourfront Centre, for which the COC did not produce a collective agreement, it is apparent from the Board's decision [Habourfront Corporation, [1981] OLRB Rep. Nov. 1624] that Local 58 was certified for a municipal wide bargaining unit.
Third, I also agree with Local 58 that it is difficult to ascertain an industry wide practice, if there is one, based solely on collective agreements without supporting certificates or voluntary recogniÂtion agreements. Quite simply, parties may agree to a particular scope clause for a variety of reasons and such scope clauses may be amended over time. What Local 58 may agree to in settlement or as part of a voluntary recognition agreement ought not to restrict its right to a bargaining unit which it would otherwise be entitled to.
Finally, it is also important that all of the collective agreements provided to the Board were between Local 58 and a performing house. It makes sense that such collective agreements would be site specific because the "house" is a relatively immovable object and does not seem likely to hold its own performances elsewhere. A performance organization like the COC, however, can hold a perforÂmance virtually anywhere. The venue chosen as the house depends on the performance and the anticipated audience. This was demonstrated in this case by the COC's occasional use of the Harbour-front Centre. There is no reason why the COC might not put on a small performance, perhaps for a charity event, virtually anywhere in the City of Toronto. More importantly, there is no reason why the COC could not build sets anywhere in the City. To restrict Local 58's bargaining rights with respect to set building would significantly reduce the stability of Local 58's bargaining rights.
In short, based on the evidence before me at the hearing I am not satisfied that there is an absolute industry practice of site specific or "performance house" bargaining rights. I also hasten to add that even were I to find such a practice, that would not necessarily mean that "house specific" bargaining units are the only appropriate bargaining units in this industry. In accordance with the Hospital for Sick Children decision, the Board must still determine it the unit applied for is appropriate.
The COC argued finally that serious labour relations problems would be created by a municipal wide certificate because such a bargaining unit would overlap and conflict with bargaining rights held by Local 58 and perhaps other unions who held with respect to "performance houses". For example, the COC's obligation to use Local 58 stagehands at the Hummingbird Centre will be governed by two different collective agreements which might conflict.
I am unable to accept that these conflicts which may occur amount to serious labour relations problems. Quite simply these are issues which ought to be easily worked out between the parties since Local 58 is the union for both the COC and the Hummingbird Centre. If not, the issue of which collective agreement applies will be determined based on a determination of the true employer of the employees at issue. In any event the lease agreement between COC and the Hummingbird Centre which purports to require that the COC use Local 58 stagehands was not provided to the Board and it therefore is impossible for me to determine whether any serious conflict might exist.
The arguments advanced before me were a creative attempt to skirt around the fact that the COC could not win a deferral of the vote based on a "build up" in the workforce. It is common ground that the facts of this case would not lead the Board, applying its normal build up jurisprudence (even assuming it still applies), to defer or re-hold the representation vote in this application. The "build up" will occur too far into the future and is too uncertain.
The Board therefore finds that:
all stage employees in the employ of the Canadian Opera Company in the City of Toronto; and all stage employees in the employ of the Canadian Opera Company at the Scene Shop located at 195 Melita Avenue in the City of Toronto and at The Imperial Oil Opera Theatre in The Joey and Toby Tanenbaum Opera Centre at 227 Front Street East in the City of Toronto, save and except scenic artists, prop shop staff, scene shop painters, costume staff, wardrobe attendants, make-up and wig staff, wardrobe, make-up and wig crew members, designers and design assistants, shop supervisors and persons above the rank of shop supervisor,
constitute a unit of employees of the responding party appropriate for collective bargaining.
Clarity Note
For the purpose of clarity, "stage employees" are defined as: employees who are trained in and exercise skills related to the technical aspects of the production and presentation of live theatrical performances. These skills include the loading, assembly, operation, maintenance, disassembly and loading of stage sets, properties, stage, electrical, lighting, sound and projection equipment; and exclude the loading, handling, use and maintenance of theatrical costumes, wigs and make-up. These skills also include the construction, but not the painting or finishing, of stage scenery and large properties; and exclude the construction or finishing of hand props, set dressing and other small properties.
On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant.
A certificate will issue to the applicant.
The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.
The responding party is directed to post copies of this decision immediately, adjacent to all copies of the "Notice of Vote and of Hearing" posted previously. These copies must remain posted for 30 days.