Seafarers' International Union of Canada, AFL-CIO-CLC v. Wakeham & Son Ltd., 1981 CanLII 1021

Seafarers' International Union of Canada, AFL-CIO-CLC v. Wakeham & Son Ltd.

0549-81-R Seafarers' International Union of Canada, AFL-CIO-CLC, Applicant, v. Wakeham & Son Ltd., Respondent, v. Local 401 —Canadian Maritime Union Canadian Brotherhood of Railway Transport & General Workers, Intervener, v. Group of Employees, Objectors

BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.

APPEARANCES: Martin Levinson, David Cote and William Ross for the applicant; Thomas A. Stefanik, Michael Gordon and Wayne Wakeham for the respondent; Rick Beck with and Jim Todd for the intervener; Timothy Dufresne and Joseph Goyetch for the objectors.

DECISION OF THE BOARD; July 27, 1981

1. This is an application for certification in which the applicant seeks to be certified as the bargaining agent for the following unit:

"All employees [of the respondent] working aboard [its] tugs at the port of Hamilton, Ontario, excluding Captains, Mates, Engineers, Management and office employees."

2. In its reply to the application, the respondent submitted that the Board "has no jurisdiction in this matter as it is one that comes within the exclusive jurisdiction of the Canada Labour Relations Board pursuant to the provisions of Section 91(10) of The British North America Act."

3. There was filed with the Board on behalf of the intervener a certificate issued by the Canada Labour Relations Board on February 1, 1977 by which the intervener was certified as the bargaining agent for "all unlicenced personnel employed aboard the ships operated by Wakeham & Son Limited." The representatives of the intervener advised the Board that it had subsequently entered into a collective agreement with Wakeham Shipping Ltd. It was common ground among the parties that Wakeham Shipping Ltd. and the respondent, Wakeham & Son Ltd., are separate legal entities. Counsel for the applicant advised the Board that his client seeks bargaining rights only with respect to the respondent, Wakeham & Son Ltd., and does not seek bargaining rights with respect to Wakeham Shipping Ltd. Counsel for the respondent advised the Board that the respondent is not alleging that there exists any collective agreement which bars the present application. The representatives of the intervener stated that the intervener does not claim bargaining rights with respect to any employees of the respondent, and further advised the Board that the intervener has abandoned any bargaining rights which it may have had with respect to such employees by virtue of the aforementioned certificate since it has not represented any employees of the respondent since June of 1978. The representatives of the intervener indicated that their only purpose in attending the hearing was to advise the Board of their existing bargaining rights with respect to Wakeham Shipping Ltd. Having been assured by the other parties to this application that the application does not affect Wakeham Shipping Ltd. or any of its employees, the representatives of the intervener withdrew from the hearing.

4. At the hearing of this matter on June 26, 1981, the Board heard evidence and argument on the constitutional issue raised by the respondent.

5. The respondent owns three vessels, commonly referred to as "tugs~~ the Princess #1, the Jenny T #2 and the R & L #1. The respondent uses those vessels at various times to push and tow barges and, in particular, to push the "fuel barge" described below; to dock ships; to provide supplies to seismic operations in Lake Erie and to tend buoys off the coast of Newfoundland (for a company whose primary concern is seismic testing for gas and oil). Although the respondent's corporate charter empowers it to engage in dredging activities, it has never actually done so.

6. The respondent acquired the Princess #1 approximately four years ago. Prior to 1981, she "pushed a fuel barge in the Port of Hamilton", towed and docked ships, and provided supplies to a "gas company" engaged in seismic work on Lake Erie. Deck-hand Grant Daniels testified that during 1979, the Princess #1 "was on Lake Erie supplying supplies to the gas company during the summer months,. . . towed two scows up the St. Clair River. . . [and] made the odd trip to Oshawa to dock some ships." In 1980, she made a towing trip to Quebec City and also went to Cleveland, Ohio, to tow a barge (with a crane on it) from there to Oshawa, Ontario. However, she has never had any "regular schedule. . . for leaving Ontario" and has done so only on a sporadic basis. She spent a "substantial amount" of her time in 1980 pushing the fuel barge in the Port of Hamilton. In 1981, the Princess #1 has worked exclusively "on the fuel barge in the Port of Hamilton". In this role, she pushes the "Shell Oil fuel barge" out to ships in the Hamilton harbour which require fuel. The ships in question can "come and go from anywhere to anywhere". Although the evidence does not indicate what proportion of the ships fuelled by the barge arrive from or travel to places beyond the Province of Ontario, it is clear that many of them are "salt water, deep sea ships" engaged in international shipping. Wayne Wakeham, an agent of the respondent (who is "contracted to the Company to look after administrative problems and employee problems"), agreed during cross-examination by counsel for the applicant that the Shell Oil fuel barge is "like a gas station for fuelling ships".

7. The Jenny T #2 was purchased by the respondent in 1969. Prior to 1981, she pushed the aforementioned fuel barge in the Port of Hamilton in the manner described above. Since the beginning of 1981, she has been "tied up" in the Port of Hamilton and has not been used at all.

8. The R & L #1 was purchased by the respondent in 1979. The respondent sent it down the St. Lawrence River to "pick up a ferry" in the east and tow it to Oshawa. However, she "only got as far as Montreal [because she] didn't have enough power to get up the river As of the date of the hearing of this matter, she was "on her way to the east coast off the coast of Newfoundland to tend buoys" until October, pursuant to a contract between the respondent and a company whose primary concern is seismic testing for oil and gas. Earlier in the year, she performed a "towing job" by going to Port Colborne, Ontario, and "taking on the line of a ship". She also was used "two or three times" for docking ships at a dry dock in the Port of Hamilton. During 1980, the R & L #1 was primarily engaged in providing oil and other supplies to oil and gas rigs in Lake Erie, although she also did some towing and docking of ships. In response to a question by Board Member Ronson, Mr. Wakeham stated that while the R & L #1 is working off the coast of Newfoundland, future requests for docking assistance will be accommodated by sending the Princess #1.

9. The evidence indicates that the operation of the respondent's three vessels is governed to a large extent by Federal legislation and regulations. For example, the maritime mobile radios on the ships are licenced by the Department of Communications of the Government of Canada and the Ships' radiotelephone installations are inspected by Transport Canada; Canada Customs has issued a "coasting licence" for the Princess #1 by which its owner is "authorized to transport duty—paid or Canadian goods for hire or reward and passengers between Canadian ports without reporting to Customs; the Canada Department of Transport has issued an Inspection Certificate in respect of the Princess #1 by which it certified, inter alia, that the ship "has been duly inspected in accordance with the provisions of the Canada Shipping Act" and that the ship is "fit to ply as an Inland Waters Towboat"; the persons who serve as "captains" on the ships are licenced by the Canadian Coastguard and are governed by the Canada Shipping Act; and each of the three ships is "registered in Canada under the Canadian flag".

10. Counsel for the respondent contended that the extensive regulation of the Company's operations by the Federal Government precludes the Board from assuming jurisdiction over it. However, the labour relations of an employer who operates ships may be within provincial jurisdiction despite the existence of federal licencing and inspection requirements and other forms of federal regulation with respect to its vessels (see, for example, Underwater Gas Developers Ltd. v. Ontario Labour Relations Board(1960), 1960 CanLII 145 (ON CA), 24 D.L.R. (2d) 673 (Ont. C.A.)). It was also contended on behalf of the respondent that the fact that it is empowered by its charter to engage in dredging is relevant to the determination of whether the respondent falls within provincial or federal labour law jurisdiction. However, the Board cannot accept that submission as it is not what an employer is authorized to do, but what it actually does, which governs the determination of the jurisdiction under which it falls (see Re Tank Truck Transport Ltd., 1960 CanLII 120 (ON HCJ), [1960] O.R. 497, at 502 (H.C.); R. v. Manitoba Labour Board Exparte Invictus Ltd. (1967), 1967 CanLII 606 (MB QB), 65 D.L.R. (2d) 517, at 526 (Man. Q.B.); The Letter Carriers' Union of Canada v. Canadian Union of Postal Workers and M & B Enterprises Ltd., 73 CLLC ¶ 14,190; 1973 CanLII 183 (SCC), [1975] 1 S.C.R. 178 (S.C.C.); Ottor Freightways Limited, [1975] OLRB Rep. Jan. 1; and Windsor Airline Limousine Service Limited, [1980] OLRB Rep. Feb. 272; application for judicial review dismissed (1981), 1980 CanLII 1897 (ON HCJ), 30 O.R. (2d) 732 (Div. Ct.); leave to appeal denied, September 15, 1980.

11. It was submitted on behalf of the respondent that its operations fall squarely within section 92(10) of the British North America Act (hereinafter referred to as the "B.N.A. Act"), which enumerates "Navigation and Shipping" as one of the classes of subjects over which Parliament has legislative jurisdiction. Counsel also suggested that section 91(29) read in conjunction with section 92(10) might be relevant to the determination of this matter. Section 92(10) provides as follows:

"In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subject next hereinafter enumerated; that is to say,—

10. Local Works and Undertakings other than such as are of the following Classes:—

(a) Lines of Steam or other Ships, Railways, Canals, telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the limits of the Province;

(b) Lines of Steam Ships between the Province and any British or Foreign Country;

(c) Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the advantage of Two or more of the Provinces."

Section 91(29) make it clear that classes of subjects expressly excepted from provincial jurisdiction, such as the classes of subjects listed in parts (a), (b) and (c) of section 92(10), are within the exclusive authority of Parliament (see Underwater Gas Developers Ltd., supra at 677-678, and Invictus, supra, at 522).

12. Prima facie the regulation of contracts of employment, hours of work, minimum wages and other aspects of employment law, including labour relations, is a matter of "Property and Civil Rights in the Province", within the meaning of section 92(13) of the B.N.A. Act and is, accordingly, within the jurisdiction of the provincial legislatures (see Toronto Electric Commission v. Snider, 1925 CanLII 331 (UK JCPC), [1925] 2 D.L.R. 5 (J.C.P.C.); Re Northern Electric Company Limited, 63 CLLC ¶115,484; and Windsor Airline Limousine Services Limited, supra). However, there is also a sphere of federal labour law jurisdiction in respect of employees of employers who are engaged in enterprises that are within federal jurisdiction, such as those set forth in section 9 1(10) and in parts (a), (b) and (c) of section 92(10) of the B.N.A. Act. Accordingly, Parliament has enacted legislation that governs labour relations in federal areas of activity. Section 108 of the Canada Labour Code, R.S.C. 1970, c.L-l, as am., provides:

"This Part applies in respect of employees who are employed upon or in connection with the operation of any federal work, undertaking or business and in respect of the employers of all such employees in their relations with such employees and in respect of trade unions and employers' organizations composed of such employees or employers."

13. In Northern Telecom Ltd. v. Communications Workers of Canada et al. (1979), 98

D.L.R. (3d) 1, at 13 (S.C.C.) Dickson J. stated (in delivering the unanimous judgment of the Court):

"The best and most succinct statement of the legal principles in this area of labour relations is found in Laskin's Canadian Constitutional Law, 4th ed. (1975), p. 363:

In the field of employer-employee and labour-management relations, the division of authority between Parliament and provincial legislatures is based on an initial conclusion that in so far as such relations have an independent constitutional competence; and, secondly, in so far as they are merely a facet of particular industries or enterprises their regulation is within the legislative authority of that body which has power to regulate industry or enterprise...

In an elaboration of the foregoing, Mr. Justice Beetz in Montcalm Construction Inc. v. Minimum Wage Com'n etc. (1978), 1978 CanLII 18 (SCC), 93 D.L.R. (3d) 641, [1979] 1 S.C.R. 754, 25 N.R. I, set out certain principles which I venture to summarize:

(1) Parliament has no authority over labour relations as such nor over the terms of a contract of employment; exclusive provincial competence is the rule.

(2) By way of exception, however, Parliament may assert exclusive jurisdiction over these matters if it is shown that such jurisdiction is an integral part of its primary competence over some other single federal subject.

(3) Primary federal competence over a given subject can prevent the application of provincial law relating to labour relations and the conditions of employment but only if it is demonstrated that federal authority over these matters is an integral element of such federal competence.

(4) Thus, the regulation of wages to be paid by an undertaking, service or business, and the regulation of its labour relations, being related to an integral part of the operation of the undertaking, service or business, are removed from provincial jurisdiction and immune from the effect of provincial law if the undertaking, service or business is a federal one.

(5) The question whether an undertaking, service or business is a federal one depends on the nature of its operation.

(6) In order to determine the nature of the operation, one must look at the normal or habitual activities of the business as those of 'a going concern', without regard for exceptional or casual factors; otherwise, the Constitution could not be applied with any degree of continuity and regularity."

See also Windsor Airline Limousine Services Limited, supra, at paragraph 25, in which the Board stated:

"Regulatory control of labour relations on a federal level can be exerted only in respect of activities which fall within federal authority by specific reference, (see Eastern Canada Stevedoring Limited, 1955 CanLII 1 (SCC), [1955] S.C.R. 529; [1955] 3 D.L.R. 721), by reference to the federal general or residuary power (See Pronto Unranium Mines Ltd. and Algoma Uranium Mines Limited v. Ontario Labour Relations Board, 1956 CanLII 153 (ON HCJ), [1956] O.R. 862; 5 D.L.R. (2d) 342;), by the exercise of federal authority by a declaration under section 92(l0)(c) of the B.N.A. Act, or by direct relation to federal government operations and federal Crown enterprises, (see Reference Re Legislative Jurisdiction Over H ours of Labour, 1925 CanLII 77 (SCC), [1925] S.C.R. 505; [192513 D.L.R. 1114)."

14. It was common ground in the instant case that if the respondent's operations fall within federal labour relations jurisdiction, they do so by virtue of the provisions of section 91(10) or section 92(10) (read in conjunction with section 91(29) of the B.N.A. Act.

15. Section 91(10) of the B.N.A. Act gives Parliament jurisdiction over "Navigation and Shipping". In City of Montreal, v. Montreal Harbour Commissioners, 1925 CanLII 325 (UK JCPC), [1926] 1 D.L.R. 840 (J.C.P.C.), Viscount Cave, L.C.. stated (at page 848) that "there is no doubt that the power to control navigation and shipping conferred on the Dominion by section 91 is to be widely construed". One of the leading constitutional cases with respect to the scope of the federal "Navigation and Shipping" power is Reference re Validity of Industrial Relations and Disputes Investigation Act (Can.), and Applicability in Respect of Certain Employees at Eastern Canada Stevedoring Co. Ltd., 1955 CanLII 1 (SCC), [1955] 3 D.L.R. 721 (S.C.C.). That Reference involved a stevedoring company which supplied stevedoring and terminal services to seven shipping companies in the ports of Halifax, St. John, Montreal, Mont Lewis, Rimouski and Toronto, for the loading and unloading of ships of those companies operating on regular schedules between ports in Canada and ports outside Canada. The majority of the nine individual judgements rendered in that case ruled that the stevedores and office staff employed by the company at the port of Toronto were subject to the federal Industrial Relations and Disputes Investigation Act and not to The (Ontario) Labour Relations Act in their employment relations with the company. The members of the Court adopted a variety of terms to express the rationale for that conclusion. Kerwin C. J. concluded that stevedores work was "intimately connected" with shipping and that they were "part and parcel of works in relation to which the Parliament of Canada has exclusive jurisdiction to legislate" (pages 730-732). Estey J. found the work of the stevedores to be an "integral part" of or "necessarily incidental" to the (inter provincial) steamship lines operated by the seven shipping companies, since the loading and unloading of the freight transported by those ships was "necessary to the successful operation of the stemships lines" (page 759). Locke J. (who dissented with respect to the majority finding that the office employees in question were within federal labour law jurisdiction) agreed with the majority that the stevedores were covered by federal labour law since "the loading and unloading of cargo are part and parcel of the activities essential to the carriage of goods by sea". He therefore concluded that "legislation for the regulation of the relations between [stevedores and their employers] is, in pith and substance, legislation in relation to shipping" (page 768). Taschereau J. stated (at page 737): "The transportation of goods by water by means of ships, is an operation entirely dependent on the services of stevedores of the Company and both are so closely connected that they must be considered as forming part of the same business."

16. The approach which has generally been adopted by the Courts (and by labour relations boards) in determining constitutional issues such as those raised in the present case was aptly summarized by Paul C. Weiler as Chairman of the British Columbia Labour Relations Board in Arrow Transfer Company, Ltd., 74 CLLC ¶ 16,130, at 1079-1080:

"They [the Courts] begin with the operation which is at the core of the federal undertaking (e.g. railway, shipping, or the postal service). They then look at the particular subsidiary operation engaged in by the employees whose collective bargaining is in question and reach a judgment about the relationship of that operation to the basic federal undertaking. The judges have used a variety of terms to characterize the part the particular operation may play in the over-all enterprise. It must have a 'vital', 'essential', 'integral', 'important', or 'intimate' role in the undertaking if it is to fall within the jurisdiction of Parliament. As was said earlier, that has been the conclusion about the relationship of stevedoring to shipping and of mail pick-up to the postal service; the opposite conclusion was reached regarding the relationship of a hotel to the railroad. In each case the judgment is a functional, practical one about the factual character of the ongoing undertaking and does not turn on technical, legal niceties of the corporate structure of the employment relationship."

In the Northern Telecom case, supra, at 14, the Supreme Court of Canada described that passage as "a useful statement of the method adopted by the Courts in determining constitutional jurisdiction in labour matters

17. In the instant case, the "core of the federal undertaking" is (extra provincial) shipping. The crucial issue is the proper characterization of the part which the respondent's "subsidiary operation" plays in that overall enterprise. That issue has presented the Board with some difficulty as this is a "border line" case.

18. If the respondent's operation was confined to the activity (carried on by the Princess #1 during 1979 and the R & L #1 during 1980) of carrying supplies on its vessels from the mainland to seismic operations on Lake Erie, it would be relatively clear on the basis of the Ontario Court of Appeal decision in Underwater Gas Developers Ltd. v. Ontario Labour Relations Board, supra, that the respondent in its relations with its employees would be subject to The Labour Relations Act and not to the Canada Labour Code; although those operations involve some "navigation" and some "shipping", those activities would be strictly incidental and subordinate to a totally different activity and undertaking, namely, seismic activities carried out with a view to determining appropriate locations for gas well sites (see, in particular, page 681 of Underwater Gas Developers Ltd.). However, other aspects of the respondent's operation have a much closer nexus with navigation and (extra provincial) shipping.

19. A recent decision of the British Columbia Labour Relations Board provides some insight into where the Courts and labour boards have drawn the line between federal and provincial labour law jurisdiction with respect to services rendered in relation to "Navigation and Shipping". In Tymac Launch Service Ltd., 81 CLLC ¶1 16,072, that Board was faced with a constitutional challenge to its jurisdiction over an employer which operated a launch service that supplied transportation services to anchored ships (including "water taxi" services by which customs officers, pilots and crew members were transported to and from ships) waiting for berths to become available at which they could dock. At pages 14,636 and 14,637, the Board stated:

"The role of Tymac [the employer in question] must be viewed in the context of the shipping industry and ancillary services. The core federal undertaking is shipping. That is, undoubtedly, within the sphere of federal legislative competence. In addition, it has been determined that the pilots who must necessarily guide ships in and out of port are subject to federal legislation in respect of-labour relations. Similarly, the tow boat industry has been held to be an essential aspect of shipping and, therefore falling within federal legislative competence. At berth, the loading and unloading of cargo has been held to be an essential aspect of shipping and, therefore, within federal legislative competence (see the Stevedoring Reference, supra).

All of these activities are essential to shipping and shipping could not be carried on without any one of them.

In contrast to those subsidiary operations which have been held essential to the shipping industry, there are several operations which, while they service the shipping industry, are not considered to be essential to it. The business of ships chandelers supplies food stuffs and other products to ships in port. The employees of ships chandelers are treated as being within provincial legislative competence in the province of British Columbia.

The repair of ships is carried out by drydock and repair operations in the port of Vancouver. The employees of these operations are provincially certified.

In my view, the operation of Tymac falls more closely within the type of functions performed by ships chandelers and ships repair services. These sorts of services are incidental to the operation of shipping. Without them, shipping could exist and could go on at some inconvenience, but it could go on. It cannot be said that Tymac's launch operation is an 'essential' or 'vital' part of the operation of shipping. In the absence of a service such as Tymac's, the ships crews would find other ways of reaching shore, for example, by the use of the ships' own equipment, (and those persons coming on board from shore would have to find alternative means of reaching the ships). While this may involve delay, inconvenience, and added expense to the shipping operation, it is by no means 'essential' to that operation."

20. Provincial labour law legislation is applicable to shipping undertakings whose operations are carried on entirely within the boundaries of a single province (see, for example, Finlay Navigation Limited, 78 CLLC ¶116,143, in which the Canada Labour Relations Board held that it had no jurisdiction with respect to personnel employed on tug boats which towed logs on an inland waterway entirely within the province of British Columbia). Provincial jurisdiction is not ousted by the fact that vessels used in such undertakings occasionally travel beyond the boundaries of the province (see Agence Maritime Inc. v. Canada Labour Relations Board(1969), 1969 CanLII 109 (CSC), 12 D.L.R. (3d) 722 (S.C.C.), in which the appellant owned and operated three ships which transported merchandise along the St. Lawrence River within the boundaries of Quebec, and which had travelled beyond the territorial limits of Quebec "only on three occasions, by way of exception" within the three year period preceding the application for certification). In Royal Hydrofoil Cruises (Canada) Limited, [1980] OLRB Rep. Sept. 1322, the Board relied upon the Agence Maritime case to conclude that it had jurisdiction over the labour relations of a company which transported passengers by ship between Toronto and Niagara-on-the-Lake along a route which ran for approximately half its length through U.S. waters in Lake Ontario.

21. In North Shore Supply Co. Ltd., [1974] OLRB Rep. July446, the Board was called upon to decide whether it had jurisdiction over employees of a "Ship Chandler" in Thunder Bay. The respondent in that case engaged solely in supplying ships with provisions (such as produce, meats, vegetables, hardware and ropes) necessary for the day to day functioning of the ships and their crews. The provisions were supplied as needed on a continuous (24 hours per day, 7 days per week) basis by the respondent from its warehouse in Thunder Bay. Approximately ninety-five per cent of the respondent's business related to ships whose operations extend beyond Ontario. The respondent provided its services to approximately seventy-five per cent of the ships coming into the Thunder Bay area. After reviewing the applicable jurisprudence, the Board concluded that it had jurisdiction to entertain an application for certification of the respondent's employees because "the operations consisting of 'Ship Chandler' services as provided by the respondent are not an integral part, nor are they necessarily incidental to the federal undertaking of 'Navigation and Shipping"'. The Board characterized the "Ship Chandler" services as a "convenience" (at paragraph 8):

"In our opinion, the characterization of 'convenience' would also apply to the respondent's operations and although we are satisfied that, without its intervention, there could be some delay occasioned in the stocking of these ships with provisions essential for their voyages, that factor of itself would not render such operations an integral or necessary part of the federal undertaking of 'Navigation and Shipping'."

22. If the activities of the respondent's tugs were confined to pushing the fuel barge in the Port of Hamilton, the respondent's operation might, by analogy to the North Shore case, be within the jurisdiction of the Board, although we would have some hesitation in characterizing the provision of fuel that is essential to the continued operation of a number of the ships in the Port of Hamilton which regularly travel beyond Ontario, as being a mere "convenience~~ associated with such shipping. The aquatic supply of fuel to such ships, without which they could not operate, appears to us to be distinguishable from the types of services which have been found in the case law to be mere "conveniences" associated with federal undertakings, such as hotel services provided by a railway for the convenience of its passengers (Canadian Pacific Railway Company and A.G. for B.C. and A.G. for Canada, 1949 CanLII 278 (UK JCPC), [1950] A.C. 122 (J.C.P.C.)), services provided by baggage porters to airline passengers up to the time their baggage is given to the airline prior to departure and immediately after their baggage is returned by the airline after landing (Murray Hill Limousine Services Ltd. v. Sinclair Batson, 66 CLLC ¶1 14,143 (Que. Ct. Q.B.)), and ground transportation services provided to and from Toronto International Airport (Re Colonial Coach Lines Ltd. and Ontario Highway Transport Board (1967), 1967 CanLII 178 (ON HCJ), 62 D.L.R. (2d) 270 (O.H.C.)). Accordingly, we would be more inclined to characterize the fuelling service provided by the respondent as being intimately connected with, an integral part of or necessarily incidental to the (federal) shipping undertaking which it serves, by analogy to the Stevedores Reference, supra. However, it is unnecessary for the Board to express a final view on that matter in the instant case since the fuelling service provided by the respondent is only part of its normal activities as a going concern. The respondent's operations also include docking ships, which appears to the Board to be an essential part of the "navigation" of those ships since (presumably) they could not be docked without such assistance; towing vessels extra-provincially; and tending buoys off the cost of Newfoundland. When those activities are viewed as a whole, it appears to the Board that the respondent's tug boat operations are an integral part of or necessarily incidental to the "Navigation and Shipping" undertakings operated by many of the customers to which the respondent provides its varied equatic services. Viewed as a whole, the respondent's operations appear to the Board to be as essential to those Federal undertakings as were the services provided by an aircraft ground service company in Butler Aviation of Canada Limited, v. International Association of Machinists and Aerospace Workers et al., 76 CLLC ¶1 14,008 (Fed. C.A.) in which it was held that the Canada Labour Relations Board properly decided that it had jurisdiction over an employer which provided re-fuelling, hanger parking, baggage handling and passenger lounge facilities for private planes and some regularly scheduled flights of certain commercial airlines at Montreal International Airport. In his judgment on behalf of the Court, Hyde D. J. stated (at page 41)

“. . . If one uses [the company's General Manager's] general description of the service supplied by his company 'a gas station' for aircraft — it is difficult to conceive how the customers it services could operate their planes or their businesses of transportation by air without those services, whether provided by it or by someone else.

What we have to consider in this case is whether a particular local operation is an 'integral part of, or necessarily incidental' (in a practical and commercial way) to an operation within federal legislative jurisdiction. . . .

Obviously there is no clear cut test that can be applied in each instance. However, I consider that the re-fuelling of an aircraft between flights is obviously 'necessarily incidental' to its operation as is the general servicing that the [company] provides. . . .”

Although the respondent's ships do not travel outside of Ontario on a regularly scheduled basis, it appears that one or more of them has done so in each of the past three years as the need has arisen. It is difficult to characterize that aspect of the respondent's operation as "casual" when one of the two active vessels for whose crews the applicant claims bargaining rights, is so engaged at the time of the application and will continue to be so engaged for a substantial period of the 1981 navigational season. (In response to a question by the Vice-Chairman, Mr. Levinson indicated that the applicant seeks bargaining rights in respect of the R & L #1, in addition to the tug currently operating in the Port of Hamilton. Presumably it is the intention of the applicant to seek leave of the Board to amend the description of the requested bargaining unit accordingly.) Moreover, employees need not be exclusively employed upon or in connection with a federal work or enterprise to come within federal labour law jurisdiction (see M & B Enterprises Ltd., supra).

23. The respondent's ships can and do travel far beyond the Province of Ontario as part of its normal undertaking. Thus, deckhands employed by the respondent in the Port of Hamilton one day, may find themselves en route to Ohio, Quebec or New Foundland the next day. It would not foster harmonious labour relations or promote sound collective bargaining to have such employees subject to a certificate of this Board one day, and subject to no certificate, or perhaps to a certificate issued by the Canada Labour Relations Board, the next day, depending upon the location of the vessel. Assumption of jurisdiction by this Board with respect to the employees in the bargaining unit applied for in this case might result in a situation in which such employees could from day-to-day be shifted from provincial to federal jurisdiction for the purposes of such matters as certification, collective bargaining, and various terms and conditions of employment. When faced with a similar prospect as a result of an argument advanced on behalf of a construction company engaged in building an airport runway, Beetz J. stated (in Montcalm Construction Inc. v. Minimum Wage Commission et al., 79 CLLC ¶1 14,190 (S.C.C.), on behalf of the majority): "I cannot be persuaded that the Constitution was meant to apply in such a disintegrating fashion." We respectfully share his view that such bifurcation of a company's labour relations is unworkable and is not dictated by the B.N.A. Act. The distinct possibility of such an unworkable situation fortifies the Board's conclusion that the respondent's tug boat operations are governed in their entirety by the Canada Labour Code, not by The Labour Relations Act.

24. For the foregoing reasons, this application is hereby dismissed.