State of the Union

Posted on December 03, 2013 | Atlantic Business Magazine | 0 Comments

IATSE had been trying unsuccessfully for years to get at least a toehold in the lucrative commercial business in larger Canadian centres like Toronto, where specialized production houses beaver away, making commercials 365 days a year. Although Egg is an economic afterthought in such global bottom-line equations, if the union could strike a deal with a small company like Egg in Atlantic Canada, that might provide them with the precedent and the leverage to…

IATSE 849’s secretary, Michel Boulet, and Hachey had been fishing buddies for more than a decade. So when Boulet had approached Hachey two years earlier about the possibility of becoming unionized voluntarily, Hachey was at least willing to listen. At one point, Hachey even accepted an invitation from Sean McGuire, the assistant to the president of IATSE International, to join him for a weekend fishing adventure on Nova Scotia’s Margaree River.

According to Hachey, the union reps told him IATSE wasn’t interested in Egg per se. The union knew Hachey was a good employer who treated his freelancers well. Their real goal, they said, was to unionize Egg in order to get to the chicken of Toronto commercial production that would keep on giving. “We want to own commercials in Canada,” Hachey says McGuire told him.

Over the next two years, the two sides exchanged occasional contract proposals. The stumbling blocks were always the same: Hachey insisted he couldn’t pay more, meaning union dues, workers’ compensation, pension contributions, etc…, would have to be carved out of the fees he was already paying. And he continued to doubt whether his IATSE-member freelancers actually wanted such a deal, especially if it meant paying union dues and other deductions out of their freelance earnings.

Those friendly but inconclusive back- and-forth discussions came to an abrupt end in the late winter of 2011. An ad agency had contracted Egg to produce a new Atlantic Lottery commercial. But the project was threatening to unravel because several members of ACTRA (another union that represents performers) complained the agency hadn’t given them a fair opportunity to audition for the commercial, which they argued was essentially being paid for by taxpayers’ dollars. There was the threat of a picket line. The Lottery Corporation, concerned about generating the wrong kind of publicity, immediately postponed the shoot until the problem could be sorted out.

Enter Michel Boulet. Hachey says Boulet offered him a deal: If Egg would sign a four-month contract and agree to begin negotiations on a longer deal, IATSE would agree to cross any ACTRA picket line.

“I spoke with Sean,” Boulet explained in an email to Hachey on February 25, “and his feeling was that if we were going to toss ACTRA under the bus and sign a deal with you, saving the commercial, then we were going to have to have something more than a one-day deal to show for it.”

Hachey says he lost it. He told Boulet: “It’s over, it’s done… No f**king way will I negotiate with a gun to my head. I’ll never unionize under those conditions.”

One week later (the ACTRA issue having been resolved in other ways), the $140,000 Atlantic Lottery commercial shoot finally went to camera.

That same day, IATSE filed its application to be certified as the bargaining unit at Egg – in effect, to represent the 11 technicians working that day’s shoot, all but one of them already a card-carrying union member.

A week after that, Mary Lou Stewart showed up at Mike Hachey’s office with a copy of the application.

Even then, Hachey thought it would be “a no-brainer – we’d win.”

“We’d never read the Trade Union Act,” adds Sarah Thomas ruefully. “We didn’t know the rules.”

So Mike Hachey followed Stewart’s advice, picked up the phone, called the company’s lawyer. But he wasn’t an expert in labour law, so he referred Hachey on to someone else, and so on and so on until Wednesday morning, March 16, the day of the vote, when Egg finally hired Jack Graham, a labour specialist with Halifax law firm McInnes Cooper.

By then it was too late to stop the wheels that had been set in motion from running over his company. The vote was held. The company countered by appealing to stop the certification before the votes could even be counted.

And the war was joined.

At one level, the issues in dispute seemed straightforward enough.

During three days of hearings in July 2011, Egg argued the technicians working for the company on March 5, 2011, were not actually employees but independent contractors with no stake in the ongoing business of the company. Given that Trade Union Act rules say workers must be employed in the business both on the date the application is filed and the date when the vote takes place, the company also made the point that none of the technicians should have even been eligible to vote.

Hachey was sure it would be a slam dunk.

But, on October 6, 2011, the labour board issued an interim ruling declaring the technicians employees “for purposes of” the Trade Union Act.

Six months later, on April 3, 2012, the Board finally explained its reasons in a 58-page decision. Acknowledging the case posed “significant issues by virtue of its contrast to run-of-the mill, standard certification applications,” the board said it was attempting to take a “balanced approach” to the key questions involved, including whether film crews could be considered employees and whether the union’s application for certification based on a one-day shoot was legitimate.

Even though technicians might end up working for a number of different companies during a year, the board ruled, they were – like skilled tradespeople in the construction industry – dependent on the industry rather than true independent contractors, so they were employees and therefore eligible to join the union.

“As with much precarious employment in the so-called ‘new economy,'” the ruling noted, making the case that the business and economic climate had changed dramatically from the job-for-life environment for which trade union legislation had originally been drafted, “workers with particular skills may be unable to gain full-time or even regular part-time work with a single employer… In some industries, serial, or even concurrent employment with a number of employers may be the norm.”

The technicians were employees. Since the technicians did the same jobs and even had the same titles (gaffer, best boy, etc…) they had while working in unionized film projects, commercials were not a “niche” industry as Egg had argued, but part of the larger film industry and therefore a logical bargaining unit. That these “employees” were employed the day of the application and not of the vote, the board said, was acceptable in the new-economy circumstances.

To rub salt in the wound, the board declared Egg could have communicated with the technicians before the vote. “Even if it mistakenly believed it could not,” noted one legal analyst, “it was the employer’s responsibility to familiarize itself with the rules.”

On September 27, 2012, 18 months after the ballots were originally cast, they were finally counted. Only five of the eligible technicians had voted, but the vote was unanimous in favour of the union.

Not everyone in the union’s 420-member local would have voted in favour.

Jake Clarke, who has been an IATSE electric for 25 years, working on both film and TV projects as well as commercials, told CBC Radio’s Halifax Information Morning he believed the attempt to unionize Egg was really “a directive from New York… I don’t think it has anything to do with us.”

When Information Morning host Don Connolly put the “conspiracy theory” question – that the Egg certification was really just a stalking horse for the union’s efforts to unionize commercial production in larger centres – to Gary Vermeir, Local 849’s business agent, he insisted, “my job is to take care of my 420 members.”

Later, he elaborated in an email to me: “We sought a collective agreement to ensure that our members who work on Egg productions have the protection of workers’ compensation, employment insurance and a union collective agreement, including medical and retirement benefits.”

Having won in every legal venue to date (in April, the Supreme Court of Nova Scotia turned down Egg’s application for a judicial review of the labour board’s decision), Vermeir said at the time that the union is “now very close to settling on a collective agreement. We look forward to establishing a good working relationship with Egg going forward, a relationship beneficial to both Egg Films and the membership of IATSE Local 849.”

It didn’t turn out that way. Although both sides claim the high road in negotiations that lasted eight months, the union ultimately concluded the company was not bargaining in good faith and asked the labour board to impose a first contract under recently enacted provincial legislation.

Both sides submitted what they considered their last best offers, and the board came up with what it saw as a fair solution.

Mike Hachey says the imposed contract not only isn’t fair (he claims it will drive up his costs by 25-30 per cent, meaning he will be unable to compete with his regional competitors) but also that “this labour board screwed us in such a big way that now we sit back and go and say, ‘Do we stay in this province?'”

While that may be emotion talking (the reality is that Hachey and Egg have already spent $180,000 of their own money on what he calls “discounted” legal fees without winning a single legal skirmish), Hachey doesn’t appear ready to give up. “We will continue to advocate for our rights as an employer and business in this region… I can tell you that we will take this to the Supreme Court of Canada if we have to.”

Mike Hachey and Michel Boulet, needless to say, are no longer fishing buddies.

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