[1982] OLRB Rep. July 1054
0566-82-U Mechanical Contractors Association Ontario: Mechanical Contractors Association — Zone 1, Applicants, v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 628; G. Merservier, Kamtar Construction Limited; and Quinard Limited, Respondents.
BEFORE: Ian Springate, Vice-Chairman, and Board Members J. Wilson and H. Kobryn.
APPEARANCES: R. A. Werry for the applicants; Alexander J. Ahee, George Meservier and Barney Anderson for United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 628, and George Merservier; R. .1. Mc Comb and D. Magne for Kamtar Construction Limited; R. J. Mc Comb and R. Morissette for Quinard Limited.
DECISION OF THE BOARD; July 20, 1982
This is an application for relief under sections 135 and 89 of the Labour Relations Act. On the evidence, we are satisfied that no claim for relief under section 135 has been made out.
The Mechanical Contractors Association Ontario (the "MCAO") is a designated employer bargaining agency representing employers in the industrial, commercial and institutional sector (the "ICI sector") of the construction industry whose employees are represented by the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (the "U.A.") and its locals, including Local 628 which is based in Thunder Bay. The corresponding designated employee bargaining agency is comprised of the U.A. and the U.A.'s Ontario Pipe Trades Council. Local 628 is an affiliated bargaining agent of the designated employee bargaining agency.
The most recent provincial agreement between the designated employer and employee bargaining agencies expired on April 30, 1982. On or about May 25, 1982 the designated employee bargaining agency called a lawful strike. Pursuant to the provisions of section 148(1) of the Act Local 628 was required to call a strike of all of the employees it represented in the ICI sector. Further, pursuant to section 146 it was unlawful for any employer to enter into a separate arrangement with Local 628 with respect to employees in the ICI sector of the construction industry. Section 146(1) and (2) provide as follows:
"146(1) 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 139 and 145, 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."
Kamtar Construction Limited ("Kamtar") is a mechanical contractor which frequently employs members of U.A. Local 628. In the ICI sector of the construction industry Kamtar is represented in bargaining by the MCAO. Prior to the commencement of the strike Kamtar employed approximately 30 members of Local 628 on a job at the Abitibi-Price mill in Thunder Bay. The work involved the replacement of large pieces of existing equipment as well as associated piping work. The terms of the most recent provincial agreement between the MCAO and the designated employee bargaining agency were applied to the members of Local 628 who were performing the work.
On or about May 25, 1982 all of the members of Local 628 employed by Kamtar at the Abitibi-Price mill went on strike. On or about June 15, 1982 many of these same employees returned to continue the work, but this time in the employ of Quinard Limited ("Quinard"). Quinard was not bound by the terms of the most recent U.A. provincial agreement, but was signatory to a "maintenance agreement" with Local 628. The evidence establishes that Kamtar sublet the work to Quinard and that Quinard entered into an arrangement with Local 628 whereby the Local was to supply Quinard with the tradesmen to work on the project.
Having regard to the provisions of section 146(2) of the Act, we are satisfied that the maintenance agreement between Quinard and Local 628 cannot be a valid agreement insofar as ICI construction work is concerned. We are further satisfied that the arrangement by which Local 628 was to supply tradesmen to Quinard, and Quinard was to employ such tradesmen, would amount to the type of arrangement prohibited by section 146(2) if the work at the Abitibi-Price mill is ICI construction work. The respondents in this matter, however, contend that the work in issue is not construction work, but rather non-construction maintenance work. If they are correct, then section 146(2) would not be of any application.
Section l(l)(f) of the Act defines that construction industry as follows:
"'construction industry' means the businesses that are engaged in constructing, altering decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site thereof."
Ever since the introduction of this definition into the Act in 1962, the Board has interpreted section l(l)(f) so as not to include maintenance work within its scope. See, for example, the Tops Marina Hotel case 64 CLLC ¶ 16,004. A real difficulty arises, however, from the fact that frequently the line of demarcation between "maintenance" and "construction" is not an easy one to discern.
In the instant case the work in issue was and still is being performed by approximately 30 members of Local 628. The total value of the work (not including the equipment which is being supplied by Abitibi-Price) is about two million dollars. The work was let to Kamtar as a fixed sum contract. The work was described by Mr. D. Magne, the Thunder Bay area manager of Kamtar, as involving the replacement of rundown equipment, including cleaners, pumps and screens. Prior to the strike, alterations were done to the mill to allow a new screening machine to go in beside the machine it was to replace so that the production process need not be shut down. Additional piping had to be attached to the new screening machine. Counsel for the MCAO contended that the new equipment is being put in to increase capacity. However, this contention was not supported by any direct evidence. Instead the evidence is to the effect that the new equipment is not being installed to increase the mill's capacity, but only to replace worn out equipment.
It is the contention of the respondents that the purpose of the work in question is to preserve the functioning of an existing system and hence according to the reasoning of the Board in Master Insulators Association of Ontario Inc. [1980] OLRB Rep Oct. 1477, the work should be regarded as maintenance work. We are unable to accept this contention. To the extent that work is done on existing equipment and piping to keep it functioning properly, we agree that it can properly be classified as maintenance work. However, in the instant case, large pieces of existing equipment are being taken out of the production process and replaced by new equipment. Piping has to be attached to all of the new equipment and a certain amount of additional piping installed. In our view, the removal of large pieces of equipment forming part of the existing production system, and the installation of new equipment along with the related piping work, goes beyond simple maintenance work and constitutes work which comes within the construction industry. We are further satisfied that it is work within the ICI sector.
Having regard to the above, the Board finds that the "maintenance agreement" between Quinard and Local 628 is not a valid agreement insofar as the work at the Abitibi-Price mill in Thunder Bay is concerned. Further, any arrangement between Quinard and Local 628 to apply the terms of the maintenance agreement to this project is an arrangement contrary to the terms of section 146(2) of the Act. The Board accordingly directs Quinard and U.A, Local 628 to cease applying the terms of this agreement to the Abitibi-Price project. The Board also finds that the arrangement between Local 628 to supply, and Quinard to employ U.A. tradesmen amounted to an arrangement contrary to section 146(2). Accordingly, U,A. Local 628 is directed to cease supplying and Quinard Limited to cease employing members of U.A. Local 628.