3832-97-R International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 58, Applicant v. Toronto Symphony Orchestra, Responding Party v. The Corporation of Massey Hall and Roy Thomson Hall, Intervenor.
BEFORE: Brian McLean, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.
APPEARANCES: John Evans and David Still for the applicant; Richard J. Charney, Anne K. Gallop and Cathy Blewett for the responding party; Richard Anstruther and Susan Jegins for the intervenor.
DECISION OF THE BOARD; May 31, 2001
This is an application under section 1(4) of the Labour Relations Act, 1995 (“the Act”).
The responding party Toronto Symphony Orchestra (“TSO”) has requested that the Board dismiss the application without a hearing into the merits of the application. Roy Thomson Hall (“RTH”) supports the TSO’s request. The Board held a hearing to consider the parties’ representations with respect to TSO’s request. This decision deals with that issue.
It is useful to set out the background to this application. The facts relating to this application are reproduced from the Board’s decision involving the same parties dated October 23, 1998:
RTH is an owner/operator of two theatres in Toronto, Roy Thomson Hall and Massey Hall. Organizations lease RTH’s facilities for arts performances and other purposes. RTH employs stagehands who work at performances and are represented in their relations with RTH by the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local 58 (“the Union”). Under the collective agreement between the union and RTH, the union’s bargaining rights are in respect of Massey Hall and Roy Thomson Hall. Stagehands are either employed semi-permanently by RTH or, when additional persons are required, are engaged through the union’s hiring hall.
TSO is a tenant of RTH and puts on musical performances at its theatres. Under the terms of the TSO’s lease with RTH, the TSO is required to use stagehands supplied by RTH. This lease provision is mandated by the terms of RTH’s collective agreement with the union. The lease also mandates that stagehands are to be engaged on the same terms as the collective agreement.
This application was filed on January 19, 1998. Prior to that, in December 1997 the trade union filed an application for certification (Board File No. 3485-97-R) with respect to the TSO’s employees with a proposed all Ontario bargaining unit. Those are the same employees who are at issue in this section 1(4) application. The TSO requested that the Board dismiss both applications without a hearing on the merits. The Board, in its decision dated October 23, 1998, dismissed TSO’s motion on the following basis:
However, on careful examination of the agreed/undisputed facts, it is apparent that the employees at issue are employed under one of two sets of circumstances. On one hand, they may be RTH employees who are employed by RTH to assist the TSO with their productions when TSO leases a RTH facility. On the other hand, RTH may refer the stagehands to TSO which then employs them, not under a collective agreement but on the same terms and conditions as exist in the collective agreement between the union and RTH. Given the facts that we know, we are simply unable to determine at this stage which set of circumstances exists and to apply the Board’s normal “who is the employer tests” in order to decide who is the employer of the stagehands.
Since all of TSO’s and RTH’s preliminary objections on the application for certification are based on the assumption that RTH is the stagehands’ employer at all times, we are not prepared to dismiss the application at this time.
The Board has also decided that the responding parties’ preliminary motion with respect to section 1(4) must be dismissed. It is impossible at this stage to determine with the requisite certainty that the application must fail if the applicant’s only purpose is to clarify the identity of the employer. The Board may decide the identity of the employer is a labour relations purpose for deciding the application after having heard the facts. It may be that following the hearing of the matter, the Board will decide not to exercise its discretion to make a declaration even if the parties are found to meet the criteria under section 1(4). However, that is a matter of discretion which, under the circumstances, is best left until after hearing the evidence.
On May 10, 2000 the trade union withdrew its application for certification.
TSO’s primary argument in this motion is that there is no labour relations purpose for the Board to grant a declaration under section 1(4) of the Act, even if all of the criteria set out in that section are met. The fact that the collective agreement which exists between Roy Thomson Hall and Massey Hall is site specific means the union cannot gain anything from the application even if it is successful. The union will hold bargaining rights for stagehands at all TSO performances at RTH and Massey Hall as they do now, whether or not TSO and RTH are declared to be related employees. In addition there is no allegation that the union has been adversely affected in any way by the leasing arrangement which exists between RTH and TSO.
The trade union responded with four separate arguments. First, it asserts that the Board ought not to allow the TSO’s motion because to do so would amount to a reconsideration of the Board’s decision dated October 23, 1998 and the TSO has not filed a request for reconsideration of that decision. Secondly, it asserts that the TSO’s argument goes to the Board’s discretion and the decision about whether that discretion should be exercised is best left until the Board has heard all of the evidence in the case. Thirdly, the trade union argues, candidly, that its purpose for bringing the section 1(4) application is to bring the TSO to the table, because they are the “paymaster” of the stagehands, and the union would like to represent the TSO’s employees at performances at locations other than Massey Hall and Roy Thompson Hall. Finally, the trade union asserts that there is no discretion to hear the case because section 1(4) of the Act does not specifically allow the Board to decline to hear a case as section 96(4) of the Act does.
RTH supports the TSO’s position.
Decision
Section 1(4) of the Act states:
(4) Where, in the opinion of the Board, associated or related activities or businesses are carried on, whether or not simultaneously, by or through more than one corporation, individual, firm, syndicate or association or any combination thereof, under common control or direction, the Board may, upon the application of any person, trade union or council of trade unions concerned, treat the corporations, individuals, firms, syndicates or associations or any combination thereof as constituting one employer for the purposes of this Act and grant such relief, by way of declaration or otherwise, as it may deem appropriate.
It is useful to set out the purpose of section 1(4) of the Act which the Board described in Albert Sliwinski Limited c.o.b. as Avon Sportswear and Victory Cap and Sportswear Limited, [1993] O.L.R.D. No. 133, as follows:
The purpose of section 1(4) is to prevent form, or an alternation in form, from undermining a trade union’s bargaining rights or the rights of employees to bargain collectively with their employer through that trade union. As a result, collective bargaining rights need not be congruent with a corporate framework and traditional common law or commercial law concepts have limited application. Indeed, it is those very concepts which led to the labour relations problems which section 1(4) (and section 64) are intended to remedy
(see Industrial Mine Installations Ltd. [1972] OLRB Rep. Dec. 1029, Brant Erecting and Hoisting [1980] OLRB Rep. July 945 and Oct. 1353, KNK Limited [1991] OLRB Rep. Feb. 209, among many others).
The classic example of the mischief section 1(4) is designed to remedy is that of an employer bound to a collective agreement which seeks to avoid the provisions of that collective agreement by forming another company to carry on the same or substantially the same business or activity, or by syphoning off work from the unionized entity to another one (see, for example, Napev Construction Ltd. [1976] OLRB Rep. Mar. 109, application for judicial review dismissed by Divisional Court, May 24, 1977, unreported, Brant Erecting and Hoisting, supra, Roy Brandon Construction [1981] OLRB Rep. Feb. 219, Metro Century Construction Ltd. [1983] OLRB Rep. July 1122). However, section 1(4) is neither an unfair labour practice provision nor a penalty provision. It also applies to bona fide commercial transactions or restructuring which directly or incidentally affect established rights under the Labour Relations Act.
The Board will first consider the trade union’s argument that it has no discretion whether to hold a hearing into an application under section 1(4) of the Act because unlike section 96(4) of the Act, section 1(4) does not state that the Board “may inquire” into a dispute. We disagree with the trade union’s argument. In our view, the Board may dismiss any application where that application does not disclose a prima facie case for the relief claimed under an appropriate section of the Act. The Board ought not to hear cases which have no prospect of success. The Board’s authority to do this is described in Rule 46 which states:
Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons.
An application under section 1(4) of the Act is no different from an application under any other section of the Act. The application must assert facts which meet the elements contained in section 1(4). The applicant must also assert facts in its application which could cause the Board to exercise its discretion to make a declaration under section 1(4). This is not the first time the Board has determined it could dismiss an application under section 1(4) when there was no basis on which the Board would exercise its discretion to make a declaration. In Albert Sliwinski the Board dismissed an application without a hearing where the applicant was unable to assert any labour relations purpose for a declaration under section 1(4) of the Act.
A similar result applies to the applicant’s contention that the Board ought to hear all of the evidence first before determining whether this was a case in which it ought not to exercise its discretion. In our view, the applicant must assert a labour relations purpose which might cause the Board to exercise its discretion in its favour before the Board hears the case on its merits. To do otherwise would turn these applications into fishing expeditions.
There is little doubt that there are instances where the Board will make a declaration under section 1(4) of the Act in order to permit the trade union to deal with the “paymaster” (or the real focus of power. (See Penmarkey Foods Limited, [1984] OLRB Rep. Sept. 1214.) However, the Board will not make a declaration under section 1(4) of the Act where the purpose of the application is to extend, rather than preserve, bargaining rights. In this case, the trade union candidly acknowledges that its purpose is to bring TSO to the negotiating table so that it can bargain with it to extend the scope clause to cover TSO’s performances which occur at locations other than the RTH and Massey Hall. The trade union does not allege that it has suffered any harm whatsoever to its existing bargaining rights because of the absence of TSO from the table. For example it has not alleged that TSO puts pressure on RTH during negotiation to keeping stagehands’ wages low. In these circumstances, the only purpose for the application is to seek to extend the union’s bargaining rights. In our view, the labour relations purpose that has been advanced by the trade union is not such that would cause the Board to exercise its discretion in the absence of allegations that the trade union is suffering by the absence of the TSO.
The trade union’s final argument is that the Board ought not to allow the TSO the motion because it amounts to an inappropriate request for reconsideration of the Board’s decision dated October 23, 1998. It is inappropriate because it was not filed on the appropriate form, it was not filed in the appropriate timeframe following that decision and the circumstances are not such so as to bring the request into the criteria normally accepted by the Board in determining whether a request for reconsideration should be granted.
In our view, the Board’s original decision was based on the fact that both the application for certification and the section 1(4) application were proceeding to hearing together. At that time, the “identity of the employer” was the fundamental issue to be determined in the application for certification and was an issue which could also be decided in the section 1(4) application. By withdrawing the application for certification, the trade union removed much of the impetus for determining that issue. In its decision the Board stated “that is a matter of discretion which, under the circumstances, is best left until after hearing the evidence.” (emphasis added). The trade union fundamentally changed the circumstances of the case by withdrawing the application for certification, and under the circumstances which now exist, the Board may look at the matter afresh. However, even if that were not the case, nothing prevents the Board from reconsidering its earlier decision, based on the changed circumstances. To the extent necessary, the Board relieves against the defects in the TSO’s filing of its request. Quite simply, the Board ought not to let technicalities cause it to proceed to hear a case which has no chance of success. Accordingly, this application is dismissed.
“Brian McLean”
for the Board