State of the union

“SOMEONE TO SEE YOU.”

Mike Hachey didn’t have time. Not today. He was in the process of sorting through paperwork dregs from last week’s Atlantic Lottery commercial shoot, planning a Canada Games event wrap-up, juggling planned/hoped-for/maybe pitches for future projects and overseeing – from the afar of Halifax – renovations at his company’s Moncton office. And, oh, yes, Sara Thomas, Egg Films’ president (and Hachey’s life partner), was off on maternity leave.

No time…

“There’s someone here to see you.”

THE WOMAN WHO’D ARRIVED, unannounced, at Hachey’s downtown Halifax office at 3 p.m. on Friday, March 11, 2011, was Mary Lou Stewart, the chief operating officer of the Nova Scotia Labour Board. She had come to hand-deliver a message she carried in a yellow envelope. The International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts (IATSE), Local 849, had applied for certification to represent technical crews on Egg’s commercial productions.

What! This must be some sort of mistake. We’re good people. We pay our technicians better than union scale. They like us. We like them… Why?… The woman asked for a list of Egg’s technician employees as of March 5, 2011. Employees? They’re not… Hachey gave her the call sheet from the lottery commercial.

There will be a vote this coming Wednesday, Stewart announced. She had a notice about the vote too. He was to post it in a prominent place so his employees would see it. Employees? Hachey tried to explain. The technicians weren’t his employees. He hired them to work on commercial shoots. They’d work a day, maybe two on location, get paid and be gone. Most never even came to the office. Hachey eventually agreed he would post the notice beside the elevator and at reception.

Can I contact them? Talk to them? Tell them what we think? You shouldn’t, Hachey remembers Stewart advising him. Though Stewart didn’t say so, there were sound historical reasons for the formalistic, legalistic, even adversarial nature of this process; employers too often attempted to intimidate workers who tried to form unions.

But what did any of that have to do with Mike Hachey, his modestly successful production studio and his (he was convinced) happy freelancers?

I suggest, Stewart suggested, you contact your lawyer.

For Mike Hachey, none of it made sense. And yet, all of it did.

In the early 1980s, 33.4 per cent of Canada’s private sector workers belonged to trade unions. Today, that percentage has shrunk to less than half that, just 16 per cent, and continues to shrivel faster than a pricked balloon. There are all sorts of reasons for this: global competition, outsourcing, technological displacement, western consumer demand for ever cheaper goods and services, corporate attacks on the traditional rights of unions and the rise of corporate-friendly media cheerleaders and right-wing governments that have collectively altered the legislative landscape and made organizing increasingly more difficult.

All of this has played out against the backdrop of the emergence of a generation for whom the solidarity-forever victories of the past – the 40-hour work week, holidays with pay, pensions, employment standards, unemployment insurance, family allowances, universal health care and progressive taxation – seem hopelessly historic. What can a union do for me now, besides take my hard-earned wages for its dues?

None of this is to suggest that unions have actually become irrelevant. Or that the need for balance in the workplace is passé.

You don’t need to be a union-makes- me-strong activist to recognize that the lack of a strong, countervailing labour movement contributed to tragedies like the July collapse of that Bangladeshi garment factory in which 1,132 workers were killed while making cheap clothes for western consumers. Or the reality that, according to international investigators, Chinese workers are currently making those newer, cheaper iPhones we covet while standing through 12-hour shifts, six days a week, for an average of 69 hours a week in a factory without adequate protective equipment and at risk from chemicals, noise and lasers.

And it’s not just in the Third World where labour’s increasing impotence changes the landscape, often for the worse.

According to the Canadian Centre for Policy Alternatives, the bottom 90 per cent of Canadians, which is to say most of us, earn just $1,700 a year more today, adjusted for inflation, than we did in 1982 when unions were still a dominant force. By contrast, the top one per cent of Canadians make (again adjusted for inflation) almost $180,000 more today than they did in the year Olivia Newton-John’s “Physical” topped the Billboard music charts.

Unions used to act as a check on such inequities.

Thanks in part to globalization and de- unionization, they no longer do. And those power dynamics filter down to the local level.

Consider the case of AB InBev, the world’s largest brewing company. Its after- tax profits last year foamed to $9.4 billion on sales of close to $40 billion USD. If you drink any one of 200 beer brands – from Budweiser to Becks, from China’s Harbin to Belgium’s Hoegaarden – you’re actually drinking InBev beer.

In 1995, one of the conglomerates that would ultimately become InBev, after ever more acquisitions, mergers and mash-ups, paid $2 billion to acquire Labatt, Canada’s largest brewing company. Including its St. John’s operation.

That plant’s 50 workers are represented by the Newfoundland and Labrador Association of Public and Private Employees. NAPE is the province’s largest union with 27,000 members – a significant number in Newfoundland terms, but a trifle in the global corporate scheme of things.

When the clearly profitable company began negotiating a new contract for its Newfoundland workers last year, its starting point was an Alpha-to-Omega demand for concessions on everything from wage rates for new hires to medical benefits for retirees. After those discussions bogged down in late March 2013, the company instructed its union workers to begin training the non-union employees it intended to bring in to replace them in the event of a strike. That triggered a brief wildcat strike, which was followed by an official strike vote – unanimous – and a picket that continues to this day.

This past summer, the union launched a limited boycott of beers produced in the St. John’s plant. But, even with the support of the Canadian Labour Congress and other unions across the country, that is unlikely to cause even a modest belch at Labatt/InBev, which has five other breweries across this country alone.

What does all of that have to do with Mike Hachey?

Nothing. And everything.

Mike Hachey hadn’t paid much attention to unions or their place in the larger world. He’ll tell you he has nothing against unions, so long as they don’t interfere with his ability to run his own small business.

Hachey’s 10-year-old Egg Films is Atlantic Canada’s largest commercial production house. It employs more than a dozen fulltime producers, directors, audio engineers, post- production specialists and administrators, and performs mostly corporate and web video work. “If it moves,” says Sara Thomas, “we can make it.” It also shoots the occasional TV or web-based commercial, either directly for corporate clients or through advertising agencies. Hachey says Egg’s commercial business is a small piece of a small pie: no more than 15 to 20 shooting days in a typical year.

Which is where IATSE wanted to come in. IATSE is an international union that represents stage hands, electrics, gaffers, grips, carpenters, wardrobe, hair and make- up, catering and other behind-the-scenes crews in the entertainment business, a labour category waterfront that covers everything from Hollywood blockbusters to indie films, TV series and plenty of live concerts and shows in between.

But not commercials.

Traditionally, the commercial production side of the business hasn’t been unionized, in part because most shoots last no more than a few days. Many production companies, including Egg, employ mostly union crews on their shoots anyway, because they’re the most skilled, experienced people available. Egg pays union rates or better in order to attract technicians who continue to earn most of their income from lucrative, longer-term unionized projects.

That said, Egg considers them independent freelancers. It doesn’t pay workers’ compensation or unemployment insurance on their behalf, and it doesn’t contribute to their union pension, health or benefit plans.

Hachey insists the technicians he hires don’t care about those things. Some operate their own freelance businesses and carry their own insurance. Many feel they already contribute more than enough to pensions and benefits through their union jobs on film and TV projects. “Commercials are gravy for them,” Hachey says.

The only real loser from that arrangement, of course, was the union, which reaped no dues, or contributions to member benefits programs as a result, but which, after all, had used its clout to help create the fiscal framework that created the union scale Egg now pays better than.

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.

 

**

This story won the 2014 silver award for feature writing from the Trade Association Business Publications International. The judges described the article as a “… thought-provoking feature that has great writing, art and human interest appeal. The entire story is beautifully written and presented.”


  1. Many of the same problems arise in other theatrical unions. In the case of Actors Equity, of which I was a long-standing member (along with a few other performance unions), actors under contract to a production were considered self-employed contracted professionals. Stage managers, employed by the same production under the exact same contract, were considered employees.

    In some years I worked as both actor and stage manager and was therefore self-employed and employee. As self-employed I could take advantage of all expenses incurred as deductibles, and as an employee I could not, but could claim EI benefits. Both had advantages and disadvantages, but none of them crossed over or coincided.

    I sat on Equity’s contract negotiating team and couldn’t explain it.

    Needless to say Revenue Canada was more confused than I was. To my knowledge, this has never been satisfactorily resolved. It appears from this story that it still heads its ugly rear.

    Reply

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