The Master Insulators' Association of Ontario Inc. v. International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, 1980 CanLII 863

[1980] OLRB Rep. October 1477

0868-80-U The Master Insulators' Association of Ontario Inc., Complainant, v. International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Respondent, v. Catalytic Enterprises Limited, Intervener #1, v. Consolidated Maintenance Services Limited, Intervener #2, v. General Presidents' Committee for Plant Maintenance in Canada, Intervener #3.

BEFORE: R. A. Furness, Vice-Chairman, and Board Members C. A. Ballentine and F. W. Murray.

APPEARANCES: Robin B. Cumine, Q.C., J. R. Blandford and Herb Near for the complainant; S. B. D. Wahl and J. Duffy for the respondent; R. C. Filion, P. Thorup and S. M. Smillie for intervener #1; James B. Noonan, Susan Bisset and George E. Temple for intervener #2; and H. M. Pollit and R. J. Watson for intervener #3.

DECISION OF THE BOARD; October 23, 1980

1. The complainant had complained under section 79 of The Labour Relations Act that it has been dealt with by the respondent contrary to the provisions of section 134a(l) of the Act and requests that the Board order the respondent and its officers and members to cease and desist from acting in breach of section 134a(l).

2. The complainant has alleged that on and after June 23, 1980, and continuing to the date of the filing of this complaint on July 23, 1980, it was dealt with by the respondent and its officers and members contrary to the provisions of section 134a(1) in that the respondent and its officers and members on behalf of the respondent having called, authorized and commenced a lawful strike concerning bargaining in connection with the renewal of the provincial collective agreement between the parties the respondent failed to call or authorize such strike in respect of all of the employees represented by it in the industrial, commercial and institutional sector and have continued to supply men and services to certain employers.

3. In paragraph 3(a) of this complaint, the complainant has completed the statement, "name of any other person, trade union, council of trade unions or employers' organization that may be affected by the complaint" by supplying the following names on a Schedule "A":

Dewar Insulations Inc.

Johns-Manville Canada Inc.

Lewis Insulations Services Limited

Per-fec-tion Insulations Ltd.

Catalytic Construction and

EPI Incorporated.

In paragraph 7 of its complaint, the complainant has completed the statement, "Other relevant statements" by adding a Schedule "B" to its reply as follows:

1. The Applicant [sic] states that the Respondent called authorized and commenced on or about June 23, 1980, a lawful strike in connection with collective bargaining for the renewal of the Provincial Collective Agreement.

2. The Respondent withdrew the services of its members from most of the members of the Applicant [sic] and has continued to withhold such services. A new collective agreement has not been reached.

3. The Respondent has, however, continued to authorize its members to supply services between the 23rd day of June, 1980 and the present, at inter alia, the following job sites to the following employers shown on Schedule "A":

JOB SITE

(a) Stelco Plant,

Hamilton, Ontario

(b) General Motors Plant,

St. Catharines, Ontario

(c) F. W. Fearman Co. Ltd.,

821 Appleby Line,

Burlington, Ontario.

(d) Sunoco Incorporated, Sinclair Parkway,

Sarnia, Ontario.

(e) Shell Oil,

Corunna, Ontario.

(f) Stelco Plant,

Nanticoke, Ontario.

EMPLOYER

Dewar Insulations Inc.

Johns-Manville Canada Inc.

Lewis Insulations Services Ltd.

Lewis Insulations Services Ltd.

Per-fec-tion Insulations Ltd.

Catalytic Construction

Catalytic Construction

EPI Incorporated

4. The Applicant [sic] may ask the Board to make certain determinations under the provisions of Section 135 in connection with this application [sic].

5. The Applicant [sic] requests that the Board abridge the time limits in order to obtain an early hearing in connection with this matter.

During a hearing on August 7, 1980, the Board considered certain preliminary matters of a procedural nature (see the decision of the Board in this matter dated August 22, 1980, which sets forth written reasons for an oral ruling which was made on August 7, 1980) and it was understood and agreed by all parties that references in the complaint which named "Catalytic Construction" referred to "Catalytic Enterprises Limited".

4. Section 134a(l) and 135 of the Act state:

134a-(l) Where an employee bargaining agency desires to call or authorize a lawful strike, all of the affiliated bargaining agents it represents shall call or authorize the strike in respect of all the employees represented by all affiliated bargaining agents affected thereby in the industrial, commercial and institutional sector of the construction industry referred to in clause e of section 106, and no affiliated bargaining agent shall call or authorize a strike of such employees except in accordance with this subsection.

135. The Board shall, upon the application of a trade union, a council of trade unions, or an employer or employers' organization, determine any question that arises as to whether work performed or to be performed by employees is within the industrial, commercial and institutional sector of the construction industry referred to in clause e of section 106.

136. The Board heard extensive evidence with respect to the nature of the work referred to in the complaint. In order for the complainant to be in a position to request the Board to exercise its powers under section 79, it is necessary for the complainant to establish that work which has been referred to in the complaint is work within the industrial, commercial and institutional sector of the construction industry and that such work was or is being performed contrary to the provisions of section 134a(1). There is no dispute that the complainant, being a designated employer bargaining agency pursuant to section 127 of the Act, and the respondent and the International Association of Heat and Frost Insulators and Asbestos Workers (the "International"), being a designated employee bargaining agency pursuant to section 127 of the Act, are parties to a provincial collective agreement applicable to the industrial, commercial and institutional sector of the construction industry. In addition, there is no dispute that this collective agreement was effective from May 14, 1979, until April 30, 1980, and that on June 23, 1980, the respondent was in a position to engage in a lawful strike with respect to that provincial collective agreement. In fact, the respondent did call or authorize a strike with respect to the provincial collective agreement on June 23, 1980. One of the questions to be answered in this complaint is whether such a strike is in violation of section 134a(l). In order to answer this question it is necessary for the Board to determine whether a document entitled "Maintenance Addendum as per Article #1.02 of Collective Agreement dated May 14, 1979" (the "maintenance agreement") between the complainant and the respondent and the International is merely an addendum to the provincial collective agreement in the industrial, commercial and institutional sector of the construction industry and which expired on April 30, 1980, or whether it is a separate collective agreement with respect to maintenance work and outside the construction industry. It is the complainant's contention that the maintenance agreement is merely an addendum to the provincial collective agreement in the industrial, commercial and institutional sector of the construction industry. On the other hand, the respondent takes the position that the maintenance agreement is a separate collective agreement with respect to maintenance work. Moreover, the respondent has requested the appointment of a conciliation officer with respect to the maintenance agreement. This request is opposed by the complainant (see Board File No. 0875‑80‑M). Moreover, the respondent has entered into several collective agreements with employers in the same form as the maintenance agreement. It is the complainant's position that work is being performed under the maintenance agreement which is in fact work in the industrial, commercial and institutional sector of the construction industry. It is the position of the complainant that such maintenance agreements are in violation of the provisions of section 133(2) of the Act and are null and void. Section 133 provides:

133-(l) An employee bargaining agency and an employer bargaining agency shall make only one provincial agreement for each provincial unit that it represents.

(2) On and after the 30th day of April, 1978 and subject to sections 127 and 132, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection 1, and any collective agreement or other arrangement that does not comply with subsection 1 is null and void.

(3) Every provincial agreement shall provide for the expiry of the agreement on the 30th day on April calculated biennially from the 30th day of April, 1978.

6. Intervener #1 and intervener #2 are parties to a series of collective agreements with intervener #3. These collective agreements are commonly referred to as General Presidents' agreements and are formally entitled "Project Agreement for Maintenance by Contract in Canada". These agreements are in force for one year and are between parties, such as intervener #1 and intervener #2 and twelve international trade unions in the construction industry. The International is included in these twelve international trade unions. These agreements are signed with respect to individual sites and the rates of pay are based upon local rates. In order to be a signatory to the General Presidents' agreement, an employer is required to fulfil two conditions. Firstly, the employer is required to employ not less than four trades on a site and have a collective bargaining relationship with such trades in the region where the site is located. Secondly, the employer is required to have contracted to perform industrial maintenance work of at least one year's duration. General Presidents' agreements have been in existence and have been applied from coast to coast since 1952. It is the position of the complainant that work in the industrial, commercial and institutional sector of the construction industry is being performed under the General Presidents' agreements in Ontario by Intervener #1, Intervener #2, EPI Incorporated and Erie Insulations Limited. It is the position of the complainant that such plant maintenance agreements in so far as they purport to cover work in the industrial, commercial and institutional sector of the construction industry are in violation of the provisions of section 133(2) and are null and void.

7. This complaint has been framed so as to include the various types of arrangements and conditions under which insulation work is being performed in Ontario and is in the nature of a test case. In this complaint the complainant seeks to establish the work which is being performed as maintenance work is work which falls within the meaning of "construction industry" as defined in section 1(1)(f) of the Act and that such work is within the industrial, commercial and institutional sector of the construction industry. The effect of such a finding would be to invalidate any purported collective agreement in the industrial, commercial and institutional sector of the construction industry with respect to insulation work other than the one between the employer bargaining agency and the employee bargaining agency referred to in paragraph five and to establish that the respondent is in violation of section 134a(1) of the Act.

8. Before considering the evidence and argument which was addressed to the Board, it is appropriate to set forth the provisions of the various collective agreements and alleged collective agreements which are in issue before the Board.

9. The provincial collective agreement was effective from May 14, 1979, until April 30, 1980, and was between the complainant, the employer bargaining agency, and the respondent and the International, the employee bargaining agency. The provincial collective agreement contains the following preamble and articles:

WHEREAS the Association, on behalf of all Employers whose employees are represented for collective bargaining by the Union and the Union have bargained together collectively in an effort to reach a collective agreement applicable to the Industrial, Commercial and Institutional sector of the Construction Industry pursuant to the provisions of The Labour Relations Act, R.S.O. 1970, c. 232, as amended;

AND WHEREAS the Association, on behalf of each Employer who is a member of the Association and any new Employer becoming a member of the Association subsequent to the date hereof, and the Union have bargained together collectively in an effort to reach a collective agreement encompassing all sectors of the Construction Industry save and except the Electrical Power Systems sector pursuant to the provisions of The Labour Relations Act;

AND WHEREAS the parties have agreed to enter into a Collective Agreement to govern wages, hours and working conditions; to establish fair and peaceful adjustments to all disputes which may arise; to prevent strikes, walk-outs and lock-outs and to eliminate waste, expense, unnecessary overtime and unnecessary delays in the performance of work;

AND WHEREAS the purpose of the Collective Agreement is to govern the wages and working conditions applicable to all work performed by the Employees in the application of those types of insulation which are within the jurisdiction of the Union in the Province of Ontario, provided, however, that under no circumstances shall this Agreement apply to work which is performed by employees of any Employer represented by the Association in that Employer's plant and not on a construction site.

NOW THEREFORE THIS AGREEMENT WITNESSETH:

ARTICLE I- RECOGNITION AND SCOPE

1.01

"Employers" as used herein means all Employers whose employees are represented for collective bargaining by the International Association of Heat and Frost Insulators and Asbestos Workers and Local Union 95 and Local Union 58 thereof with respect to bargaining rights in the Industrial, Commercial and Institutional sector of the Construction Industry and, in addition, means members of the Association and new Employers becoming members of the Association subsequent to the date hereof, including such other Employers as may become bound to the provisions of this Agreement pursuant to either Article 14 hereof, with respect to all sectors of the Construction Industry save and except E.P.S.C.A. or pursuant to the provisions of The Labour Relations Act.

1.02

"Employees" as used herein shall mean and include all mechanics, improvers and/or apprentices who are members of the Union. This agreement covers the rates of pay, rules and working conditions of all mechanics and improvers of that work traditionally and regularly performed by this craft for the employers signatory to this Agreement at the site of construction, in performance of the preparation, distribution, fabrication, alteration, application, erection, assembling, molding, spraying, pouring, mixing, hanging, adjusting, repairing, dismantling, reconditioning, maintenance, finishing and/or weatherproofing, of cold or hot thermal insulation with such materials as may be specified when these materials are to be installed for thermal purposes in voids, or on other piping, fittings, valves, boilers, ducts, flues, tanks, vats, equipment, or on any hot or cold surface for the purpose of thermal control and such other work as may be awarded the Union pursuant to trade jurisdictional award.

1.02(a)

Maintenance as specified in Clause 1.02 may, if the employer has signed a Maintenance Addendum, which is in full force, be performed under the terms of the said Maintenance Addendum and such maintenance work shall be subject to all terms and conditions of the "Maintenance Addendum".

1.03(a)

All Employers whose employees are represented for collective bargaining by the Union recognize the Union as the sole bargaining agent for their employee performing work covered by the Agreement within the Industrial, Commercial and Institutional sector of the Construction Industry.

1.03(b)

All Employers who are members of the Association and new Employers becoming members of the Association subsequent to the date hereof recognize the Union as the sole bargaining agent for their employees performing work covered by this Agreement in all sectors of the Construction Industry, save and except E.P.S.C.A.

1.03(c)

This agreement and any Maintenance Addendum thereunder shall be the only Agreement signed or in effect between the Association, members of the Association, new Employers becoming members of the Association subsequent to the date hereof and employer signatories to a collective agreement which acknowledges that the said Employer is bound by this Agreement and incorporates by reference the terms and conditions of this Agreement and all other Employers bound by the Agreement and the Union (other than E.P.S.C.A., Specialty and Residential Groups).

The Union agrees that it will not sign any other Agreement or Maintenance Addendum with any other employer or an Association representing employers, on terms more favourable to such employers or Association than those contained in this Agreement or any Maintenance Addendum thereunder.

10. The maintenance agreement was effective from May 14, 1979, until June 30, 1980, and was between the complainant on the one hand and the respondent and the International on the other hand. The maintenance agreement states on its cover, "Maintenance Addendum as per Article #1.02 of Collective Agreement dated May 14th, 1979" and contains the following preamble and articles:

WHEREAS the Employers are engaged from time to time in the business of plant service, repair and renovation work (as defined in Article 2 herein), for members of the "Owner-Client Council of Ontario", and this work is of importance to the Union and it being recognized there is an essential difference in the conditions required to perform this type of work, the Union and the Association wish to enter into this agreement for their mutual benefit covering work of this nature.

WHEREAS the Union have in their Membership throughout Ontario Members competent and qualified to perform the work of the Employers.

WHEREAS the Employers have employed and now employ Members of the Union on service, repair and renovation work recognized by the Unions of the AFL-CIO as being within the jurisdiction of said Union.

WHEREAS in order to insure relative equity and uniform interpretation and application, the Union wishes to negotiate and administer said collective agreement in concert with the Employers.

WHEREAS the Parties of this agreement agree, that due to the particular nature of the work covered by this agreement, there shall be no strikes or lockouts during the life of this agreement, and provisions shall be made to achieve this end.

IT IS THEREFORE AGREED by the Parties hereto, in consideration of the mutual promises and covenants contained herein that the agreement be made as follows:

ARTICLE 1 RECOGNITION

1.01 The Employer recognizes the Union as the exclusive bargaining agent for all employees engaged in service, repair and renovation work within the Province of Ontario, as defined in Article 1.02 of the collective agreement dated May 14th, 1979.

ARTICLE 2 SCOPE OF AGREEMENT

2.01 The scope of this agreement shall cover all work of a service, repair, renovation and revamp nature, including shutdowns and turn-arounds in an existing facility assigned by an Owner-Client to an Employer covered by the terms of this Agreement.

2.02 The scope of this agreement shall not apply to work performed by the Employer of a new construction nature which is work required to erect new facilities in which event the work shall be performed in accordance with the provisions of the collective agreement dated M4y 14th, 1979.

2.03 The Union and the Employers understand that the Owner-Client, may at his discretion, choose to perform or directly subcontract work for any part or parts of the work necessary in his plant.

2.04 No Contractor covered by the terms of this agreement will subcontract work to a Contractor who is not in contractual relations with the Union.

11. The collective agreements with individual or independent employers are between the employer on the one hand and the respondent and the International on the other hand. These collective agreements are identical with one and the other and are in short form. The short form agreements are each dated May 14, 1979, and provide:

WHEREAS the Union is entitled to represent the employees of the Employer within the bargaining unit hereinafter described.

AND WHEREAS the Union and the Employer desire to enter into a Collective Agreement covering all work of a service, repair, renovation and revamp nature, including shut-downs and turn-arounds in existing facilities and not applicable to new construction required to erect new facilities.

AND WHEREAS the Union and the Master Insulators' Association of Ontario, Incorporated, have entered into a collective agreement expressed to be applicable to the work above described and applicable to the employees within the bargaining unit hereinafter described, effective as of May 14th, 1979 until June 30, 1980 ("the Collective Agreement").

The Employer and the Union hereby acknowledge and agree as follows:

1. The Employer hereby recognizes the Union as the sole and exclusive bargaining agent for all employees, Journeymen and Apprentice Insulators and Asbestos Workers in the employ of the Employer in the Province of Ontario, performing work of a service, repair, renovation and revamp nature, including shut-downs and turn-arounds in an existing facility. The scope of this Agreement shall not apply to work performed by the Employer of a new construction nature which is work required to erect new facilities;

2. Except as may be otherwise provided for herein, the Employer and the Union hereby acknowledge and agree to recognize, observe and be bound by all the terms, conditions, provisions (both monetary and non-monetary) and appendices and schedules set forth and forming part of the Collective Agreement and including any renewals thereof, as if the same was made between the Union and the Employer. The Employer acknowledges that it is in possession of and is familiar with all the terms, conditions and provisions of the Collective Agreement.

3. In the event of any of the terms, conditions, provisions (both monetary and non-monetary) and appendices and schedules of the Collective Agreement are in any way altered, added to or amended by the parties thereto, then the parties to this Memorandum of Agreement shall be bound by the same for all work covered by the Collective Agreement as if original parties thereto and the Employer shall execute such documents as may be presented to it by the Union in order to confirm and acknowledge such intention.

IN WITNESS WHEREOF each of the parties hereto has caused this Memorandum of Agreement to be signed by its duly authorized representatives as of the date and year first above written.

12. The General Presidents' agreements are effective from April 30 to April 29 of the succeeding year and are entitled "Project Agreement for Maintenance by Contract in Canada". Under the title there appears the name and location of the client for whom the employer who is a party to the collective agreement is performing the work. The collective agreements are virtually identical in form and one example provides:

PROJECT AGREEMENT FOR MAINTENANCE

BY CONTRACT IN CANADA

This Agreement is entered into this 30th day of April, 1978 by and between CATALYTIC ENTERPRISES LIMITED of Sarnia, Ontario (hereinafter referred to as the "Company"), and those INTERNATIONAL UNIONS OF THE AFL-CIO listed hereunder (hereinafter referred to as the "Unions"), for the purpose of maintenance, repair and renovation work for SHELL CANADA LIMITED located at Oakville, Ontario.

The Unions are composed of the following International Unions of the AFL-CIO:

International Association of Heat and Frost Insulators and Asbestos Workers

International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers

United Brotherhood of Carpenters and Joiners of America

Operative Plasterers and Cement Masons International Association

International Brotherhood of Electrical Workers

International Association of Bridge, Structural and Ornamental Iron Workers

Labourers International Union of North America

International Union of Operating Engineers

International Brotherhood of Painters and Allied Trades

United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada

Sheet Metal Workers International Association

International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers

Whereas the Company is engaged in the business of plant maintenance, repair and renovations (as defined in Article 4.000) with miscellaneous industries, and this work is of importance to the Unions herein listed, and it being recognized there is an essential difference in the conditions required to perform this type of work, the Unions herein listed with the Company wish to enter into an agreement for their mutual benefit covering work of this nature.

Whereas the Unions have in their membership throughout the area members competent and qualified to perform the work of the Company.

Whereas the Company has employed and now employs members of the Unions on maintenance, repair and renovation work recognized by the Unions of the AFL-CIO as being within the jurisdiction of said Unions.

Whereas, in order to insure relative equity and uniform interpretation and application, the Unions, through the duly appointed and constituted General Presidents' Committee for maintenance in Canada wish to negotiate and administer the said Collective Agreement in concert, each with the other, and all with the Company.

Whereas, the Company and the Unions desire to mutually establish hours of work and working conditions for the workmen on an area basis to the end that satisfactory conditions and harmonious relations will continue to exist for the benefit of both parties to this Agreement.

Whereas the Company and the Unions agree that, due to the particular nature of the work covered by this Agreement, there shall be no lockouts or strikes during the life of the Agreement, and provisions must be made to achieve this end.

Whereas, it is recognized that all employees covered by this Agreement shall have the protection of all existing Federal, Provincial and Local laws applicable to employees in general, and provisions in this Agreement which are in contravention of any Federal, Provincial, or Municipal regulation or laws affecting all or part of the limits covered by this Agreement shall be suspended in operation within the limits to which such law or regulation is in effect. Such suspension shall not affect the operation of any such provisions covered by this Agreement, to which the law or regulation is not applicable. Nor shall it affect the operations of the remainder of the provisions of the Agreement within the limits to which law or regulation is applicable.

It is, therefore, agreed by the undersigned Company and the undersigned Unions that in consideration of the mutual promises and covenants contained herein, the project agreement be made as follows:

ARTICLE 1.000 – RECOGNITION

1.100 The bargaining unit under this Agreement shall comprise all employees of the Company, coming under the jurisdiction of the Unions signatory to this Agreement, now employed and employed in the future for maintenance, repair and renovation work at the Owner's plant site.

1.200 The Company and the Unions

1.201 Agree that the jurisdiction recognized herein for each Union shall be the jurisdiction recognized by the AFL-CIO, provided, however, that if they or the Unions are unable to agree upon the Union which is to have jurisdiction over any group of employees, the Company will recognize one as having jurisdiction until such time as the Claimant Unions agree upon another and provided further that work considered within the jurisdiction of any Union which is not represented by the Unions listed herein may be assigned by the Company to the jurisdiction of the most appropriate Union.

1.202 Recognize the Unions as herein duly constituted for the purpose of bargaining collectively and administering this Agreement for the members of their respective Unions.

1.203 Agree to bargain collectively with the Unions and to be governed by the terms of this Agreement and by all lawful settlements of disputes and grievances made pursuant thereto.

ARTICLE 3.000 – SCOPE OF WORK

3.100 The scope of this Agreement covers all work of a maintenance, repair and renovation nature, assigned by the Owner to the Company and performed by the employees of the Company covered by this Agreement, within the limits of the Owner's plant site.

3.200 The scope of this Agreement does not cover work performed by the Company of a new construction nature which is work required to erect new facilities in which event the work shall be done in accordance with existing building construction agreements.

3.300 The Unions and the Company understand that the Owner, may, at his discretion, choose to perform or directly subcontract work for any part of parts of the work necessary in his plant.

ARTICLE 4.000 – DEFINITIONS

4.100 Maintenance shall be work performed for the repair, renovation, revamp and upkeep of property, machinery and equipment within the limits of the plant property.

4.200 All work performed by the Company on existing equipment and machinery, including all associated work in a given plant, shall be maintenance. This shall include replacement of existing individual items of machinery and equipment with new units, including all associated work. It is understood that this concept would not include replacement of an entire process system installation in a plant in order to increase production.

4.300 Addition of spare machinery or equipment may be done under the maintenance agreement provided it is for debottlenecking purposes. Example: There are two existing pumps. Both pumps are required to run at all time to maintain full production. A spare may be added for the purpose of having one pump for maintenance.

4.400 Changes to existing units for reasons of feed stock changes or fuel changes shall be maintenance.

4.500 The administration and interpretation of this article is the responsibility and prerogative of the General Presidents' Committee for Contract Maintenance in Canada.

4.600 "Long-Term Maintenance" shall be the continuing work performed of a maintenance, repair renovation character within the limits of the plant property exclusive of "Short-Term Maintenance" defined below.

4.700 "Short-Term Maintenance" work means work that is terminated within 65 available days of work.

4.800 The word, "repair" used within the terms of this Agreement and in connection with maintenance, is work requested to restore by replacement or by revamp of parts of existing facilities operating conditions.

4.900 The word, "renovation", used within the terms of this Agreement and in connection with maintenance, is work required to change by replacement or by "revamp" of parts of existing facilities to efficient operating conditions.

Unlike the earlier agreements referred to in paragraph nine, ten and eleven, the General Presidents' agreements are multi-trade collective agreements.

13. Members of the complainant have been engaged in performing work on the premises of Stelco in Hamilton, General Motors in St. Catharines and F. W. Fearman Co. Ltd. in Burlington both prior to the subsequent to June 23, 1980. The work which was performed for Stelco at Hamilton was performed by Dewar Insulations Inc. ("Dewar"), Johns-Manville Canada Inc. ("Johns-Manville") and Lewis Insulations Services Limited ("Lewis") pursuant to standard form agreements to perform "General Insulation Work – Construction and Maintenance". These standard form agreements set forth the general conditions under which work is to be performed and do not in themselves guarantee that any work will be awarded to Dewar, Johns-Manville and Lewis. The actual work is awarded on the basis of purchase orders which specifically refer to the work to be performed and which generally stipulate that the work should not exceed two thousand dollars in value.

14. Per-fec-tion Insulations Ltd. ("Per-fec-tion") was engaged in performing work on the premises of F. W. Fearman Co. Ltd. ("Fearman") after June 23, 1980. This work was performed in connection with the addition of one hundred thousand square feet to an existing facility. Fearman installed new steam, compressed air and refrigeration capacity and added two new boilers. In addition, Fearman installed one hundred feet of new piping and connected it into an existing steam line. Two refrigeration units were relocated during the expansion of Fearman's plant. As a part of this programme of expansion and relocation, Per-fec-tion's employees replaced existing insulation and applied new insulation. After June 23, 1980, following the advice of the respondent's steward, Frank Burns, and Per-fec-tion's superintendent that this work was maintenance rather than construction, such work was performed by employees of Pec-fec-tion who were members of the respondent.

15. Dewar Insulations Inc. ("Dewar") performed insulation work of a routine nature on various systems at Stelco's plant in Hamilton both before and after June 23, 1980. Dewar's contract with Stelco does not provide a definition of maintenance and construction. Until 1980 Dewar never differentiated between maintenance and construction and always charged construction rates because it had never signed a maintenance agreement with the respondent. However, after June 23, 1980, Dewar commenced using maintenance rates and so advised Stelco. Gabriel Larocque, Dewar's superintendent at Stelco, testified that Dewar's work at Stelco did not include new construction work. The work performed by Dewar at Stelco after June 23, 1980, consisted of insulating damaged furnaces, insulating steam lines, new emergency showers and minor work in a change house. In general terms, this work was performed in order to maintain or sustain production through an existing operating system. In some cases, however, the system is shut down to allow the insulators to work on it.

16. Lewis Insulations Services Ltd. ("Lewis") performed insulation work on the premises of Stelco's plant in Hamilton both before and after June 23, 1980, and after June 23, 1980, at General Motors' plant in St. Catharines. At Stelco's plant in Hamilton, Lewis was engaged in insulating pipes and steam lines during the shutdown of one of the basic oxygen furnaces in a pumphouse and in a screening room. Some of this work involved the removal of hazardous asbestos insulation and replacing it with fibre glass insulation. At the General Motors' plant in St. Catharines, Lewis was engaged in repairing plates and replacing insulation during a shutdown in July and August.

17. Johns-Manville Canada Inc. ("Johns-Manville") was engaged in insulation work at Stelco's plant in Hamilton both before and after June 23, 1980. In fact, Johns-Manville has been engaged in an ongoing maintenance schedule at Stelco's plant in Hamilton since 1965. Apart from certain temporary work in order to protect personnel, all of the insulation was performed on existing systems. Shawn Tilson, Johns-Manville's national manager of contract business, testified that before June 23, 1980 he did not particularly make any distinction between maintenance and non-maintenance work. Certain evidence was produced before the Board with respect to Stelco's plant at Nanticoke. However, the work which was allegedly performed at Nanticoke by Johns-Manville was not part of the particulars of this complaint. Accordingly, the Board is not prepared to consider such evidence as part of this complaint.

18. Catalytic Enterprises Limited ("Catalytic") performed work which involved the application of insulation material for Sunoco Incorporated ("Sunoco") at Sarnia, for Shell Canada Limited ("Shell") at Corunna and at various other locations in Ontario both before and after June 23, 1980. Catalytic's work for Shell commenced in 1952 and its work for Sunoco commenced in 1953 or 1954. Catalytic's work for Shell and Sunoco involves the use of a crew of employees with a steady core of that crew who commenced work for Catalytic in 1952 or 1953. Catalytic's employees apply insulation work on pipes, pumps, compressors, tanks and vessels. At Shell's chemical plant and refinery Catalytic employs sixty per cent of the maintenance forces with Shell employing the balance of the maintenance forces. At Sunoco's refinery, Catalytic employs all of the maintenance forces. Shell and Sunoco operate their facilities on a twenty-four hours a day and three hundred and sixty-five days a year basis. Catalytic performs its maintenance services for Shell and Sunoco on a "cost plus" basis together with a fixed annual fee.

19. Consolidated Maintenance Services Limited ("Consolidated") performed work which involved the application of insulation work for the refinery of Gulf Oil Canada Limited at Clarkson and for the refinery of Texaco Canada Limited at Nanticoke. George Temple, Consolidated's Vice-President, described his company's work as basically similar to the work performed by Catalytic. Indeed, Catalytic and Consolidated are each other's principal competitor in the field of plant maintenance which involves the use of four or more trades.

20. EPI Incorporated ("EPI") is apparently a newcomer to multi-trade maintenance work on industrial facilities. EPI has performed work which involved the application of insulation material for Stelco at its Nanticoke plant both before and after June 23, 1980. Such work included removing and replacing insulation on a brine pump in a powerhouse. There were two brine pumps connected in parallel into a producing system and one pump was shut down while insulation was being replaced. Once the insulation was being replaced. Once the insulation was replaced both pumps were connected into a producing system.

21. The distinction between "maintenance" and "repair" in the construction industry is not one which is easily made. While section 1(1)(f) of the Act defines "construction industry" and refers to "repairing", the words "maintenance" and "maintaining" do not appear in the Act. Several of the witnesses who appeared before the Board used the words "maintenance" and "repair" interchangeably. Before June 23, 1980, Mr. Tilson, the national manager of contract business for Johns-Manville, did not particularly make any distinction between maintenance and repair. For some journeymen insulators the difference between maintenance work and construction work was the difference between working forty hours each week as opposed to thirty-six hours per week in construction work. For Frank Burns, a steward for the respondent, the difference between maintenance and construction was one dollar and fifty-six cents an hour. Dewar performed work for Stelco in Hamilton, did not differentiate between maintenance and construction and always charged construction rates until this year because it had never signed a maintenance agreement.

22. However, the Board, since the introduction of the construction industry provisions into the Act in 1962 in The Labour Relations Amendment Act, 1961-62, S.O. 1961-62, c. 68, has regarded maintenance as not included in the definition of "construction industry" in section 1(1)(f). For example, in the Tops Marina Motor Hotel case, 64 CLLC ¶16,004, an application for certification was held to be properly made under the construction industry provisions of the Act. In that case the Board, in determining an appropriate bargaining unit of carpenters and carpenters' apprentices, stated that it was not its intention to include in that bargaining unit carpenters who might subsequently be employed to do ordinary maintenance work once the motor hotel was in operation. In the Dravo of Canada Ltd. case, [1967] OLRB Rep. June 261, the Board distinguished between an employer's maintenance operations and its construction operations and in The Board of Governors of The University of Western Ontario case, [1970] OLRB Rep Oct. 776, the Board determined that the employer was not operating a business in the construction industry because the employees who were the subject of an application for certification were engaged in maintenance rather than repair. In the Overhead Door Co. of Toronto Ltd. case, [1974] OLRB Rep. July 482, the Board examined the business of an employer who was engaged in the sale, distribution, installation, maintenance and warranty of various types of wood and metal doors and concluded that whether "maintenance' is to be considered as part of "construction industry" depends on the type of "maintenance" being performed and on the context of a given employer's operations.

23. The evidence before the Board established that insulators use the same tools, apply the same insulation and exercise the same skills whether the work is clearly new construction, which was agreed by all of the parties to be included within the definition of "construction industry" in section 1(1)(f) of the Act, or is described as either "maintenance" or "repair". Indeed, the line of demarcation between "maintenance" and "repair" is not a sharp one. On more than one occasion witnesses who were unable to define either "maintenance" or "construction" expressed confidence that they knew "maintenance" and "construction" (and, therefore, "repair") when they saw it.

24. Almost all of the work upon which this complaint is based involved applying insulation in order to maintain or sustain a system that was either producing or capable of producing a product according to its design. In some instances the system or portion of a system was actually functioning during the removal or application of insulation. In other instances a system or portion of a system was briefly closed down or advantage was taken of periodic or annual shutdowns in order to remove or apply insulation.

25. Reference was made to a decision of this Board and other labour relations boards where in accreditation proceedings "employers of employees employed in all phases of industrial plant maintenance and repair were excluded from an appropriate unit of employers. See The General Contractors' Section of The Toronto Construction Association case, [1975] OLRB Rep. 134. Similarly, the Alberta Board of Industrial Relations in 1974 excluded maintenance work from a unit of employers in a proceeding analogous to accreditation. In Nova Scotia in 1975 in accreditation proceedings, the Labour Relations Board noted the agreement of the parties that "Catalytic Enterprises Ltd., in its work for Canadian General Electric Ltd. at Port Hawkesbury, and employers similarly engaged in industrial plant maintenance under contract should be excluded from the unit [of employers]". In an accreditation proceeding in 1975, the Prince Edward Island Labour Relations Board decided that "maintenance and service work performed on completed installations" did not fall within the meaning of "construction industry". The definition of "construction industry in section 51(c) of the Labour Act, R.S.P.E.I., c. L.-1, is in all material respects the same as in section 1(1)(f) of Ontario's Labour Relations Act. In an accreditation proceeding in 1976 the Industrial Relations Board of New Brunswick excluded from a unit of employers "industrial plant maintenance work performed by employers such as Catalytic Enterprises Limited and other employers doing such work". None of the parties were able to refer to any cases in any jurisdiction where industrial plant maintenance had been regarded and treated as falling within the construction industry as defined either in section 1(1)(f) or in analogous definitions in any legislation. These decisions treat industrial plant maintenance as separate and apart from the construction. However, with the exception of the decision of the Prince Edward Island Labour Relations Board, none of these decisions has determined that industrial plant maintenance does not fall within the meaning of "construction industry". Therefore, the decisions referred to in this paragraph, other than the decision of the Prince Edward Island Labour Relations Board, are open to the interpretation that the exclusions of employers engaged in industrial plant maintenance from units of employers in accreditation proceedings are based upon a concept analogous to a lack of a community of interest when defining appropriate bargaining units.

26. Catalytic referred to its submissions before The Industrial Inquiry Commission into Bargaining Patterns in the Construction Industry where it argued that the definition of construction contained in section 1(1)(f) of the Act is not sufficiently explicit to make it clear that industrial maintenance is not included in the definition of construction. Catalytic also referred to pages 60 and 61 of the Report of Mr. D. E. Franks in support of its argument that industrial plant maintenance ought not to be regarded as part of the construction industry. The portion of the Report states:

One further matter concerning the scope of these recommendations must also be dealt with. A number of the building trades have collective agreements which cover maintenance work. Under these collective agreements members of building trades unions work for employers engaged in general maintenance and repair work, usually on industrial sites. Such operations are really service operations rather than construction operations. As service operations they are outside the construction industry and thus outside of the recommendations made by this Commission. There is, however, a concern by those in the construction industry that construction work might be done under the guise of such a maintenance collective agreement. This is a valid concern, and where the work done under a maintenance agreement involves new construction or substantial reconstruction of premises, then that work is clearly within the construction industry and thus covered by the recommendations made in this report.

While the Board may look at the Report in order to see what was the mischief at which the amendment to The Labour Relations Act in 1977 with respect to province-wide bargaining was aimed, it may not look at what the Report recommended. Lord Denning, M. R. expressed a cautious approach to the use of Reports in Letang v. Cooper, [1965] 1 Q.B. 232, when he stated at page 240:

It is legitimate to look at the report of such a committee [the Tucker Committee on the Limitations of Actions] so as to see what was the mischief at which the Act was directed. You can get the facts and surrounding circumstances from the report so as to see the background against which the legislation was enacted. This is always a great help in interpreting it. But you cannot look at what the committee recommended, or at least, if you do look at it, you should not be unduly influenced by it. It does not help you much, for the simple reason that Parliament may, and often does, decide to do something different to cure the mischief.

These remarks by Lord Denning are applicable to Catalytic's argument. This is particularly the case where in enacting The Labour Relations Amendment Act, 1977, S.O. 1977, c. 31 (province-wide bargaining) the Legislature did not see fit to amend the definition of construction industry in section 1(1)(f). In fact, the definition of "construction industry" in the Act has remained unchanged since its introduction in 1962.

27. The complainant referred to numerous legal authorities in its argument and its word by word analysis of section 1(1)(f). These authorities were drawn from many jurisdictions and concerned the interpretation of "constructing", "altering", "repairing", "demolishing", and "revamping" in contracts and legislation in a wide variety of contexts. However, the Board found none of these authorities to be persuasive. The authorities cited before the Board under scored the necessity of considering the context in which a word is used in order to interpret its meaning.

28. With the exception of the work performed at the premises of Fearman and the work on a new emergency shower and minor work in a change house at Stelco, the work performed by the employers who were named in this complaint was essentially similar in nature. In our view, the work at the premises of Fearman, which involved an addition to an existing facility and involved both relocation of producing units and the expansion of existing capacity, was clearly new construction. Similarly, the work on the emergency shower and change house at Stelco was an addition for the safety and comfort of Stelco's employees and represented new construction. This work is clearly within the industrial, commercial and institutional sector of the construction industry. The rest of the work referred to in the complaint was, for the most part, clearly work which sustained and maintained an operating facility and enabled that facility either to operate efficiently or to attain its designed or production capacity and it to be regarded as maintenance work. Maintenance work is to be distinguished from construction work which involves the addition to an existing facility or which will increase the designed or production capacity of an existing facility. However, in so far as there was work of new construction, which was purportedly done under the maintenance agreement, it was a violation of section 134a(l) of the Act.

29. Maintenance work performed by the employers who were named in this complaint is in reality part and parcel of the production and maintenance operations of the industrial clients for whom the work is performed. These industrial clients may, and frequently do, perform their own maintenance work with their own employees who are included in their own industrial bargaining units. In the context of the work affected by this complaint "maintenance" is difficult to distinguish from "repair". In our view, it is a question of the context of any given work and the degree of addition or subtraction of such work to an existing system or part of a system. Where the work assists in preserving the functioning of a system or part of a system, such work is maintenance work. Where the work is necessary to restore a system or part of a system which has ceased to function or function economically, such work is repair work. "Maintenance" and "repair" are not mutually exclusive concepts, and lack of adequate maintenance will surely produce a situation where repair becomes inevitable. In our view, the performance of adequate and timely, maintenance forestalls or reduces the requirement for repair.

30. For reasons which are set forth in Board File No. 0875-80-M, infra, at page 1497 the Board finds that the document entitled "Maintenance Addendum as per Article #1.02 of Collective Agreement dated May 14, 1979" is a separate collective agreement covering maintenance as opposed to the provincial collective agreement which covers work which includes work in the industrial, commercial and institutional sector of the construction industry.

31. Article 1.02 of the provincial collective agreement refers to, among other terms, "repairing" and "maintenance". However, Article 1.02 also refers to "repairing" and "maintenance" performed "at the site of construction". With the exception of the new construction referred to in paragraph 28 the rest of the work referred to in that paragraph was not performed "at the site of construction". The rest of the work was performed on the premises of industrial clients. The Board finds that the provisions of Article 1 of the provincial collective agreement do not cover the rest of the work referred to in paragraph 28.

32. The separate maintenance collective agreement which was referred to in paragraph 30 purports to cover "repair" work in Article 2 thereof. To the extent that "repair" in this collective agreement purports to cover the repair work referred to in paragraph 29 and not as a synonym of "maintenance", such work is beyond the scope of the separate maintenance collective agreement. Such repair work is properly covered by the provincial collective agreement. The preceding remarks in this paragraph are also applicable to the inclusion of the word "repair" in independent collective agreements referred to in paragraph 11.

33. The General Presidents' agreements clearly address themselves to plant maintenance. In our view, where the word "repair" is used in Article 1.100, 3.000 and 4.000, it is also used as a synonym for "maintenance" and is not to be construed as "repair" as contemplated in section 1(1)(f) of the Act.

34. For the foregoing reasons the Board finds that the provincial collective agreement is the collective agreement contemplated by section 133(1) of the Act and that none of the other collective agreements referred to in this decision are null and void by virtue of the provisions of section 133(2).

35. Prior to the calling or authorizing of a strike by the employee bargaining agency on June 23, 1980, the respondent explained to its members that a strike was to be commenced with respect to employers which were covered by the provincial collective agreement. Thereafter, the respondent made every reasonable effort to ascertain the type of work which such employers were performing. These efforts called for descriptions of the work to be performed, visits to the job sites by representatives of the respondent and reports by stewards and members. The respondent received requests for employees from many employers. Where the respondent was satisfied that the work to be performed was maintenance work and not covered by the provincial collective agreement it supplied its members to perform the work where an employer had signed a maintenance collective agreement. The complainant in making its allegations and in introducing evidence to establish violations of section 134a(1), relied upon work which had been performed by its members. In some cases the respondent supplied its members to perform work under the maintenance collective agreement only after a member of the complainant had either commenced a proceeding under section 123 of the Act or had threatened to commence a proceeding under section 123 of the Act if the respondent did not supply its members to perform work under the maintenance collective agreement. The performance of such work was then attacked by the complainant as contrary to the provisions of section 134a(1). Eight of the ten directors of the complainant either own or represent employers who performed work under the maintenance collective agreement after June 23, 1980. Twenty-one of the forty-four members of the complainant employed members of the respondent to perform work under the maintenance collective agreement after June 23, 1980, and other members of the complainant said they would do likewise if they could obtain the work. To say the least, the complainant, in fact, adopted one position while a majority of its members and directors behaved in an entirely opposite and inconsistent manner.

36. The new construction work referred to in paragraph 28 was performed after June 23, 1980, and the respondent has violated section 134a(l) of the Act. However, the violations of section 134a(1) were quantitatively small in terms of the totality of the evidence with respect to the work which was performed. Many of the issues raised in this complaint have not been previously considered by the Board and the respondent has made reasonable efforts not to violate section 134a(l). The respondent's business manager, Joseph Duffy, was prevented from visiting the premises of Fearman by security guards and was unable to inspect the work which was being performed. While not condoning the violations of section 134a(1), the totality of the evidence before the Board, the conduct of the membership of the complainant and the fact that the construction work has been completed do not warrant the exercise of the Board's discretion in issuing a cease and desist order pursuant to section 79 of the Act.

37. The complaint is dismissed.