Carpenters' District Council of Toronto and Vicinity v. West York Construction Ltd., 1983 CanLII 800

[1983] OLRB Rep. December 2132

1556-79-M; 1397-81-M The Carpenters' District Council of Toronto and Vicinity on behalf of Locals 27, 666, 681, 1133, 1747, 1304, 1963, 3227 and 3233, United Brotherhood of Carpenters and Joiners of America, Applicant, v. West York Construction Ltd., Respondent, v. Van Bots Construction, Respondent, v. General Contractors Section of the Toronto Construction Association, Intervener, v. Metropolitan Toronto Apartment Builders Association, Intervener, v. Ontario Form Work Association, Intervener, v. Labourers International Union of North America, Local 183, Intervener.

BEFORE: Ian C. Springate, Vice-Chairman, and Board Members J. A. Ronson and H. Kobryn.

APPEARANCES: Douglas J. Wray, Fred J. Leach and Joseph Campbell for the applicant; S. C. Bernardo and A. Kunz for West York Construction; S. C. Bernardo and Dan Van Leeuwen for Van Bats Construction; Bruce Binning for the General Contractors Section of the Toronto Construction Association; Bruce Binning and Karl Mallette for the Metropolitan Toronto Apartment Builders Association; Jeffrey L. Davies and Tony Michael for the Ontario Form Work Association; S. B. D. WahI and C. DeToni for Labourers' International Union of North America, Local 183.

DECISION OF IAN C. SPRINGATE, VICE-CHAIRMAN, AND BOARD MEMBER J. A. RONSON; December 19, 1983

1. These proceedings arise out of two applications to the Board under section 150 of the Labour Relations Act wherein the Board is asked to determine whether two separate projects, both now completed, came within the industrial, commercial and institutional sector (the "ICI sector") of the construction industry. It is common ground that if the two projects did not fall within the ICI sector, they came within the residential sector. Although both projects are now completed, the sector issue remains relevant to the merits of certain grievances filed by the Carpenters District Council of Toronto and Vicinity. The Carpenters' District Council takes the position that both projects were within the ICI sector. All of the other parties, however, contend that the projects came within the residential sector.

2. The Act nowhere expressly defines what is meant by the terms "residential sector" and "ICI sector". Reference to the various sectors is, however, found in section 117(e). The provisions of both section 117(e) and section 150 are set out below:

“117 (e) ‘sector’ means a division of the construction industry as determined by work characteristics and includes the industrial, commercial and institutional sector, the residential sector, the sewers and watermains sector, the roads sector, the heavy engineering sector, the pipeline sector and the electrical power systems sector.”

“150. 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 117(e).”

3. The idea that the construction industry is divided into different divisions or sectors originally developed independently of any provisions in the Labour Relations Act. Instead, the different sectors evolved as a result of employer associations and trade unions entering into separate collective agreements covering particular types of construction work. The lines separating the different types of work or sectors evolved primarily on the basis of common understandings, and to the extent they were written down, it tended to be only in collective agreements negotiated between the various unions and employer associations. In 1971 the Act was amended to reinforce the bargaining position of employer associations by permitting the Board to "accredit" them as the statutory bargaining agent for employers, whether members of the employer association or not. In that many employer associations tended to be active only in a particular geographic area, and in one or, at most, a relatively small number of sectors, the accreditation provisions of the Act specified that the Board could accredit an employers' association by reference to a geographic area and by reference to one or more sectors. (The current provision in this regard is set out in section 126 of the Act). So as to explain what it meant by the term sector, coincidental with the enactment of the accreditation provisions in the Act, the Legislature enacted what is now section 117(e). In setting out the various sectors, the legislation referred to the residential and 1Cl sectors as being separate sectors, a move which recognized, and likely hastened, an already existing trend towards treating "building construction" differently on the basis of whether it is residential or ICI. In 1978 the Legislature amended the Act so as to consolidate bargaining structures in the ICI sector on a province-wide basis, and to stipulate that, with certain exceptions, the only agreements which could apply to ICI work were the provincial agreements referred to in section 137(1)(e). This amendment gave increased importance to the concept of sectors, and to the issue of determining exactly what work came within the ICI sector. We do not believe, however, that by giving statutory recognition to the concept of different sectors and by enacting special provisions with respect to the ICI sector, the Legislature thereby intended to change the existing understandings between trade unions and employers concerning the scope of the different sectors.

4. The two projects with which we are concerned can be summarized fairly quickly. One of the projects involved the construction of a nineteen level building built for, and on land owned by, the Hospital for Sick Children in Toronto. The building is located approximately one block from the Hospital itself. The eighth to nineteenth levels of the building contain 119 self-contained apartment units. The first and second levels are parking garages for use by the occupants of the apartment units. The third to seventh levels are also parking garages but for use by the general public. Although no evidence was led on point, given the proximity of the building to the Hospital proper, it is reasonable to infer that the public parking garages will primarily be used by staff and visitors to the Hospital. There is a sharp disagreement between the parties as to how the self-contained apartment units should properly be characterized. The Carpenters’ District Council characterizes this portion of the building as a "staff residence", whereas the other parties contend that the apartment units are open to the general public. Unfortunately, no one from the Hospital was called as a witness to explain the Hospital's rationale for building the apartment units, or how they have in fact been utilized. The evidence we do have with respect to these matters is very limited. The architects plans, which were filed as an exhibit on agreement of the parties, refer to the building as a "staff residence and parking garage for the Hospital for Sick Children". However, Mr. Van Leeuwen, who at the relevant time was a senior officer with Van Bots Construction ("Van Bots"), the general contractor on the project, indicated that the matter was not quite that simple. According to Mr. Van Leeuwen, the apartments are to be leased through A. E. LePage acting as property manager and rental agent. Preference for the apartments is to be given to medical doctors serving their periods of residency at the Hospital, but any apartments not taken up by these doctors are to be leased to the general public. According to Mr. Van Leeuwen, any doctors who do occupy the apartments will be charged the same rent as the general public.

5. The second project involved the construction of a building on the campus of the Salvation Army Training Centre in Toronto. The building has two floors and a basement. On the second floor of the building there are five self-contained apartments to be used by persons attending the Salavation Army Training Centre as well as their families. In the basement are rooms holding mechanical and electrical equipment, as well as a laundry room and a washroom. Also located in the basement is a large playroom. It is the understanding of Mr. Kunst, the president of the project's general contractor, West York Construction Ltd. ("West York"), that this playroom is for the use of children resident in the building. Part of the first floor of the building is taken up by a small lounge and office. However, the greatest part of the space on the first floor is given over to three additional large playrooms. It is the understanding of Mr. Kunst that these playrooms are for the use of children living in other buildings on the Salvation Army Training Centre campus, but that none of the playrooms are to be used for a licensed day care center.

6. The dispute between the parties arises primarily out of the manner in which the concrete forming work was performed on the two projects. In both instances, all of the forming and related concrete work was performed by members of Labourers' International Union of North America, Local 183 ("Local 183"). In the case of the project for the Hospital, members of Local 183 were employed directly by Van Bots to perform the work. On the Salvation Army project the Local 183 members were employed by Rili Brother Forming Ltd. a concrete forming contractor to which West York had sublet the work. On both projects, members of Local 183 built and repaired the forms used to take the concrete. Local 183 members also placed the iron rods used to reinforce the concrete, poured the concrete and then did the related cement finishing work. In addition, all of the associated general labouring work was performed by Local 183 members. The grievances filed by the Carpenters' District Council reflect the claim that the projects in question fell within the ICI sector and that pursuant to the terms of the provincial agreement covering carpenters employed in the ICI sector, all of the carpentry work associated with building and repairing the forms should have been performed by members of the United Brotherhood of Carpenters and Joiners of America. Given that a central issue with respect to both grievances was whether the work in question actually came within the ICI sector, both grievances were adjourned so as to allow the Board to deal with the sector issue pursuant to the provisions of section 150 of the Act.

7. The Board heard considerable evidence with respect to the history of concrete forming in the Toronto area. In the unionized portion of the ICI sector, concrete forming has generally been performed by members of a number of different trades. The forms themselves are built and repaired by carpenters belonging to the United Brotherhood of Carpenters and Joiners of America. The reinforcing rods are installed by rodmen belonging to the International Association of Bridge, Structural and Ornamental Ironworkers. All of the labouring work on a project, including the pouring of the concrete, is performed by members of the Labourers' International Union of North America, Local 506, which is a "sister local" of Local 183. The finishing work on the concrete is performed by cement masons belonging to the Operative Plasterers' and Cement Masons' International Association of the United States and Canada.

8. Historically, wooden forms built to take a concrete pour were disassembled after a pour and then re-built for the next pour. In the 1960's, however, there was a great increase in the construction of concrete high-rise apartment buildings in the Toronto area. Because of the repetitive nature of the buildings and the fairly short spans between vertical walls, residential concrete forming firms developed a procedure by which they could re-use the same forms. The forms were moved intact from one location on a building to another by way of a crane. The movement of the forms by a crane became referred to as "flying" the forms, and the forms themselves became known as "flying forms". The use of flying forms greatly increased the speed of construction and also lowered the costs associated with the construction of high-rise apartment buildings. Because of the nature of most ICI projects, generally they have not been amenable to the use of flying forms. However, as a result of certain technological advances, there is now a growing use of flying forms in ICI sector concrete forming.

9. Initially, in the Toronto area concrete forming work on high-rise apartment buildings was performed on a non-union basis. The non-union employees who performed the work tended to work as a single "gang" or "crew", and while an individual employee might be particularly proficient in one aspect of the work, when not engaged in his speciality he would work on other aspects of the work as well.

10. In the mid-1960's there were a number of attempts to organize employees in the residential concrete forming field. One of these attempts involved the formation of a council of unions known as the Council of Concrete Forming Trades Unions comprised of locals of the Carpenters, Cement Masons, Ironworkers and Labourers Unions, as well as Local 793 of the International Union of Operating Engineers. The Operating Engineers Union is a trade union that represents crane operators and its involvement in the Council reflects the fact that flying forms are actually "flown" by a crane. The Council of Concrete Forming Trades Unions proved to have no lasting organizing success. A more lasting organizing effort, however, was undertaken by Local 183. Local 183's approach involved taking into membership all employees engaged in concrete forming except the crane operators. In 1977 an association of concrete forming companies known as the Ontario Form Work Association entered into a collective agreement with Local 183 covering "all construction employees" employed by its member companies with the exception of crane operators represented by' Local 793 of the Operating Engineers Union. Local 183 and Operating Engineers Local 793 subsequently entered into a council of unions known as the Form Work Council of Ontario. In 1979 this council entered into a collective agreement with the Ontario Form Work Association covering "all construction employees" of the forming companies belonging to the Association. Under this agreement, the crane operators were required to be members of Operating Engineers Local 793, while all other employees belonged to Local 183. Renewal agreements between the same two parties was entered into in 1981 and 1983. Although these agreements did not purport to limit their applicability to any one sector, the forming contractors belonging to the Ontario Form Work Association have generally performed the majority of their work in the residential sector. Further, we gather that the great majority of firms engaged in high-rise residential concrete forming in the Toronto area are either bound by this agreement, or by separate but similar agreements. As already noted, on the Salvation Army project the concrete forming work was subcontracted to Rili Brother Forming Ltd. This firm is a member of the Ontario Form Work Association and is bound to the collective agreement with the Form Work Council of Ontario. On the project built for the Hospital, Van Bots did its own forming work. Van Bots is not a member of the Ontario Form Work Assosciation. However, on September 26, 1977 Van Bots and Local 183 entered into an agreement whereby Van Bots agreed to apply the terms of the then current agreement between the Form Work Council of Ontario and the Ontario Form Work Association, as well as the terms of subsequent agreements between the same parties.

11. For their part, the major apartment builders in the Toronto area have grouped themselves into an association known as the Metropolitan Toronto Apartment Builders Association (the "MTABA"). In May of 1970 the MTABA entered into a collective agreement with Local 183. On November 28, 1975 the then current agreement between Local 183 and the MTABA was amended so as to require that members of the MTABA "not … sublet concrete forming to sub-contractors other than those who are in contractual relationship with the union". It appears that this clause has been included in all subsequent agreements between the same par­ties. West York is a member of the MTABA. As already noted, on the Salvation Army project, West York sublet the concrete forming work to Rili Brother, a firm bound to Local 183 through the Ontario Form Work Association agreement. Van Bots, the builder of the project for the Hospital, is not a member of the MTABA. However, on July 23, 1976 Van Bots entered into an agreement with Local 183 whereby it agreed to apply the terms of the then existing agreement between Local 183 and the MTABA, as well as to honor the terms of subsequent agreements between the same parties. In this regard, it might be noted that Van Bots is unusual in that it is a developer that does its own forming work. This explains why it has bound itself to the terms of both the MTABA agreement with Local 183 (the developers agreement) as well as the Ontario Form Work Association — Form Work Council of Ontario agreement (the forming contractors agreement).

12. The agreement between the MTABA and Local 183 does not purport to cover lCl work. The agreement does, however, contain the following fairly wide description of what is a residential apartment building for the purposes of the agreement:

“1 .01 Each of the Employers recognize the Union as the Collective Bargaining Agent for all of its own Construction Employees, (whose Classifications fall into a category listed on Schedule "A" attached hereto), engaged in the on-site Construction of all types of Apartment Buildings only and their natural amenities, and without restricting the generality of the foregoing, and for the purposes of clarification, it is agreed that the following building types shall be deemed to be an Apartment Building for the purposes of this Agreement:

(i) all Public Housing, Co-operatives, Senior Citizens' and Student Housing;

(ii) a stacked row dwelling, which means a building divided vertically into three or more dwelling units, and horizontally into four or more dwelling units each having its own private entrance;

(iii) a stacked structure which is four storeys or more above grade;

(iv) notwithstanding Items 1.01(i) and 1 .01(u), a traditional three-storey Apartment Building, with common corridors, stairwells and parking;

(v) a separate structure which includes space designed to be used fur Commercial, Retail and/or Office purposes of not more than 50 per cent (50%) of the gross floor area (excluding Parking and Recreational facilities);

(vi) those Sections of a multi towered single Complex on a common podium which are divided vertically by lines relating directly to Commercial and Residential Sections; then each Section shall be built according to its base use.”

(emphasis added)

13. Local 183 is not the only union with which the MTABA has a bargaining relationship. On September 20, 1969 the MTABA entered into an agreement with the Toronto Building and Construction Trades Council. The Council, now known as the Toronto — Central Ontario Building and Construction Trades Council (the "Construction Trades Council") is a grouping of most of the locals of the various building trades unions in the Toronto area, and includes among its members both Local 183 and the Carpenters District Council of Toronto and Vicinity. The first and subsequent agreements between the MTABA and the Building Trades Council have provided that once a union can establish that a number of conditions have been met with respect to certain work, MTABA members are required to sublet that work only to contractors employing members of the union. However, if the necessary pre-conditions are not met, then MTABA members are free to sublet the work to any contractor they choose. It has generally been the understanding that the MTABA — Building Trades Council agreement applies only to the residential locals of the Building Trades Unions. In instances where the same local of a Building Trades Council affiliate represents employees in both the residential and ICI sectors, but with different wage rates and other conditions of employment, the residential wage rates and terms have generally been regarded as applicable. The 1969 MTABA — Building Trades agreement expressly excluded concrete forming from its scope, although as already noted, in 1975 the MTABA entered into a separate agreement with Local 183 which expressly dealt with concrete forming. It is of some interest that originally no locals of the Carpenters Union were regarded as meeting the requirements to be insured that work would be sublet by MTABA Developers to firms employing members of the union. However, on July 5, 1973 the MTABA and the Building Trades Council agreed that Carpenters Local 1190, a residential local affiliated to the Carpenters District Council of Toronto and Vicinity, met the requirements to be insured that trim carpentry work be sublet only to firms employing its members. Concrete forming and the installation of forms was expressly excluded from this arrangement.

14. The original 1969 agreement between the MTABA and the Building Trades Council referred to the work which it covered in the following terms:

“1.01 This agreement shall apply to Residential Construction, that is, the on site construction of all types of apartment buildings only and their natural amenities, and shall not apply to commercial, industrial and institutional construction which is tendered through the normal bid depository systems, provided that apartment projects under the Ontario Housing Authority tendered through the normal bid depository system shall be covered; provided however, where a member owns any land directly or indirectly, beneficially or otherwise, upon which he intends to construct a commercial, industrial or institutional building, then the terms and conditions of this agreement, and not the terms and conditions of the commercial Unions, shall apply.”

From this wording, it appears that the initial MTABA — Building Trades agreement applied not only to "apartment buildings" (which term was in no way defined) but also to ICI projects where a member of the MTABA owned the land.

15. On January 23, 1975 the MTABA and the Building Trades Council entered into a second agreement. The scope of this agreement differed in two major respects from that of its predecessor. Firstly, it eliminated any reference to ICI work on land owned by MTABA members. Secondly, for the first time it described what projects were to be included in the term "apartment building" and thus covered by the agreement. The language employed in this regard was almost identical to the language employed in the MTABA — Local 183 agreement. The actual wording of the relevant part of the MTABA — Building Trades agreement read as follows:

“1.01 This agreement shall apply to Residential Construction, that is, the on-site construction of all types of apartment buildings only and their natural amenities, and shall not apply to commercial, industrial and institutional construction. It is understood that the terms and conditions of this agreement, and not the terms and conditions of the Commercial Unions, shall apply.

Without restricting the generality of the foregoing, and for the purposes of clarification, it is agreed that the following building types shall be deemed to be an apartment building for the purposes of this agreement:

(i) All Public Housing, Co-operatives, Senior Citizens' and Student Housing;

(ii) a stacked row dwelling, which means a building divided vertically into three or more dwelling units, and horizontally into four or more dwelling units, each having its own private entrance;

(iii) a stacked structure which is four floors or more in height;

(iv) notwithstanding Items (i) and (ii), a traditional three-storey apart­ment building, with common corridors, stairwells and parking;

(v) a separate structure which includes space designed to be usedfor commercial, retail and/or office purposes of not more than 50 per cent (50%) of the gross floor area (excluding parking and recreational facilities);

(vi) those sections of a multi-towered single complex on a common-podium which are divided vertically by lines relating directly to commercial and residential sections; then each section shall be built according to its base use."

(emphasis added)

16. Similar language to that set out above has been included in all of the renewals of the MTABA — Building Trades Council agreements. These agreements have also continued to require that MTABA members sublet trim carpentry only to contractors employing members of Carpenters Local 1190. However, there has also been included in subsequent agreements a requirement that MTABA members sublet any caulking and weatherstripping work to firms employing members of Carpenters Local 1747, and the installation of lath, gypsum drywall boards and acoustical ceiling systems to firms employing members of Carpenters Local 675. Form work, however, is still exempted from the agreement's coverage.

17. Before leaving the subject of bargaining rights, we would note that in 1964 Van Bots signed a "working agreement" with the Toronto Building and Construction Trades Council, and that West York signed a similar agreement in 1967. By virtue of these agreements, both firms agreed to recognize the Building Trades Council and its affiliated unions as the collective bargaining agents of their employees. It is on the basis of these documents that the Carpenters District Council of Toronto and Vicinity, being an affiliate of the Building Trades Council, claim bargaining rights for the two companies. Due to the effect of the provincial bargaining sections of the Act, any bargaining rights held by the Carpenters District Council and its member locals in the ICI sector are now covered by the provincial agreement entered into between the designated carpenter employee and employer bargaining agencies. Earlier we made reference to certain grievances filed by the Carpenters District Council. These grievances were filed against Van Bots and West York and claimed that the two firms had violated the provincial agreements by not employing, or not sub-contracting the work to firms who did employ, carpenters to perform the forming work.

18. The evidence indicates that since the early 1970's most high-rise apartment construction in the Toronto area has been performed pursuant to the terms of the MTABA —Building Trades Council and MTABA — Local 183 agreements. Pursuant to the MTABA —Local 183 agreement, apartment developers have sublet the concrete forming work to contractors employing Local 183 members. Pursuant to the terms of the agreement between the Ontario Form Work Association and the Form Work Council of Ontario, these contractors have employed members of Local 793 of the Operating Engineers Union to operate the cranes and members of Local 183 to do all of the remaining work, including building the forms, setting the reinforcing rods and pouring and finishing the concrete. Many members of Local 183 are in fact specialized in one aspect of the work, but when an employee's special skills are not required, he may perform other types of work, including assisting other members working at their specialties. On low-rise apartment buildings, flying forms may not be used. In these cases, members of Local 183 build the forms and then disassemble them after each pour. As already indicated, in contrast to the procedures utilized in the residential sector, most unionized ICI concrete forming is performed pursuant to the terms of the provincial agreements of the various trades, with members of the carpenters union building and repairing the forms.

19. The parties led considerable evidence concerning how buildings built by institutions for residential purposes, as well as buildings with both residential and commercial uses, have been classified in the Toronto area. The evidence with respect to mixed residential-commercial buildings was by far the more detailed. Prior to the mid- 1970's these types of mixed-use buildings were quite rare in the Toronto area, but since then they have become increasingly common. Indeed, at least one third of all new high-rise apartment buildings have some commercial component. In most instances, the commercial use is restricted to the first one or two floors which are given over to retail stores and/or professional offices. In accordance with the terms of the MTABA — Building Trades Council agreement, these projects have generally been built on a residential basis. There have also been a number of instances where the commercial component has been somewhat more substantial. Again, the description of an apartment building contained in the MTABA — Building Trades Council agreement has generally been applied to determine whether the project was to be constructed on a residential or ICI basis. Highly relevant examples of such mix-use buildings include two projects where a number of levels were constructed as public parking garages to be operated by the City of Toronto parking authority, while the remaining, floors were self-contained apartments to be rented out by the City's housing authority. In both cases, the projects were constructed pursuant to the MTABA — Building Trades Council agreement.

20. The evidence indicates that a variety of institutions have become active in the construction of residential apnstitutional buildings and hence constructed as ICI projects. Evidence was led, however, concerning a number of talmost always been built pursuant to the MTABA — Building Trades Council agreement. Many of these projects have involved the construction of buildings by various government bodies so as to provide subsidized or medium — cost rental accommodation to the general public. In addition, a number of ethnic organizations have built similar buildings for use by their members, particularly senior citizens. Here again the proj­ects have generally been built as residential apartment projects in accordance with the terms of the MTABA — Building Trades Council agreement. Unfortunately, very little evidence was led with respect to the manner in which institutions have constructed residential buildings for directly institutional uses. We surmise (although there was no direct evidence on point) that at one time the traditional form of university residences in the Toronto area were considered as institutional buildings and hence constructed as ICI projects. Evidence was led, however, concerning a number of town houses built in 1978 and 1979 as student residences at Erindale College, which is a branch of the University of Toronto located in Mississauga. West York was the general contractor on the project and it sublet the forming work to a forming con­tractor which employed members of Local 183. It will be recalled that both the MTABA —Local 183 and the MTABA — Building Trades Council agreements expressly include "student housing" as a type of apartment building.

21. It is of some interest that both Van Bots and West York are actively engaged in building ICI buildings using a mix of construction trades on the form work, and that both also build residential buildings where, apart from the crane operators, all of the concrete forming work is performed by members of Local 183. In bidding on the jobs for the Hospital and for the Salvation Army, both Van Bots and West York bid for the work on the understanding that the projects were residential. Pursuant to the MTABA — Building Trades Council agreement, most sub-contracts on the projects were let to firms employing members of residential locals of the building trades unions (or residential divisions of multi-sector locals) and as permitted under that agreement, some of the work was sublet to non-union firms. As already noted, the concrete forming work on both projects was performed by members of Local 183. Flying forms were utilized on the project for the Hospital, but due to its relatively low height not on the project built for the Salvation Army. The trim carpentry on both jobs was performed by members of Local 1190, a residential local of the Carpenters Union.

22. Before considering which sector the two projects in question actually came within, we would note that no party argued in favour of treating one part of the projects as residential and another part as ICI. Indeed, it appeared to be accepted that such an approach would not be feasible. In this regard, various witnesses referred to problems that would arise in bidding a job and then subletting the work if part was viewed as residential and part as ICI. There would also be difficulties in deciding how to characterize the initial excavation work and installation of underground services. Witnesses from both Van Bots and West York also voiced a concern that if the lower levels of a building were built by an ICI contractor, and the upper floors by a residential contractor, it would be difficult to establish which contractor was responsible for problems which might develop with respect to the upper floors, in that the root of the problem could lie in the manner in which the lower floors were constructed.

23. It is the contention of Van Bots, West York and the MTABA that the Board need not reach any actual conclusion on the merits with respect to which sector the two projects came within. It is their view that the Carpenters District Council is estopped from contending that the description of what constitutes a residential apartment building contained in the MTABA — Toronto Central Ontario Building and Construction Trades Council agreement does not apply. In this regard, they rely on the fact that the Carpenters District Council is a member of the Building Trades Council, and that certain of its locals have taken advantage of the MTABA — Building Trades Council agreement, in particular residential Local 1190 with respect to trim carpentry. They also rely on the fact that the Carpenters District Council acquired its bargaining rights with respect to both West York and Van Bots on the basis of those firms signing a "Working Agreement" with the Building Trades Council. Given these facts, they contend that it simply does not lie in the mouth of the Carpenters District Council to now challenge the description of what constitutes an apartment building agreed to by the Building Trades Council. On a number of occasions the Board has, in fact, applied the principle of estoppel to stop a party from relying on its strict rights under a collective agreement where because of its own prior conduct it would be unfair to let it do so. However, we do not believe that the principle of estoppel can apply to a determination under section 150 of the Act. In this regard it is to be noted that the Act clearly indicates that the ICI sector is to be treated differently from the other sectors of the construction industry. In addition, section 146 stipulates that except for the various provincial agreements, it is not open to employers and trade unions to enter into agreements or arrangements which purport to cover the ICI sector. It follows from this that it is simply not open to parties to seek to contract out of the provisions of the Act relating to the ICI sector by agreeing that certain ICI work does not come within the ICI sector. See: Quinard Limited [1982] OLRB Rep. July 1054. Given these considerations, we are of the view that the Carpenters District Council is not estopped from contending in these proceedings that the two projects came within the ICI sector.

24. Having reached this conclusion, the issue remains as to what weight, if any, should be given to the description of what constitutes an apartment building contained in the MTABA agreements and in particular the agreement between the MTABA and the Building Trades Council, as well as to the practice that has grown up in light of those agreements. The Carpenters District Council takes the position that it would be inappropriate for the Board to look at local area practice or to apply the descriptions of an apartment building contained in the agreements. In this regard, the District Council contends that since agreements and practices differ in different parts of the province, if the Board were to rely on local conditions and agreements, it might possibly end up concluding that a particular type of project falls within the residential sector in the Toronto area, but in the ICI sector in another part of the Province. A number of the other parties, however, strongly contended that local area practice was a reasonable consideration to take into account.

25. Lacking a definition of either the residential or the ICI sector in the Act, the Board is required to determine the dividing line between them with limited statutory guidance. In determining the matter, we incline to the view that as far as reasonably possible our conclusion should be one which takes into account existing industrial relations realities. We would refer in this regard to our earlier expressed view that by incorporating the notion of sectors into the Act, the Legislature did not thereby intend to change the existing understandings between trade unions and employers as to the scope of the different sectors. We recognize that local practices and understandings might vary in different parts of the Province and that our approach has at least the potential for different results in different areas. We also recognize that this might create a number of uncertainties. Nevertheless, we view such a situation as something that both trade unions and employers can accommodate themselves to. Indeed, if the result of this approach is that the line separating the residential and ICI sectors is somewhat different in various parts of the Province, it would be precisely because trade unions and employers in different parts of the province have already adopted different approaches to the issue.

26. This is not to say that local area practices or local agreements will always be determinative. Most projects clearly fall within one sector or another, and a local practice or agreement cannot alter that fact. Accordingly, an agreement to regard a clearly ICI project such as a shopping plaza or a school as residential would not find much favour with the Board. Rather, it is only with respect to those relatively small number of projects which fall into the grey area" between the sectors that a widely accepted local practice or agreement might assist in deciding how the project should be characterized. We would caution, however, it is possible that for one reason or another other relevant factors might be persuasive enough to cause the Board to conclude that a local practice or agreement should not be followed. Each situation will have to be determined on the facts involved.

27. With respect to the Toronto area, an agreement has been reached between the MTABA as the representative of most of the major apartment builders, and the Toronto-Central Ontario Building and Construction Trades Council, a central body of building trades union locals, concerning what constitutes a residential apartment. The evidence indicates that the terms of this agreement have generally been applied throughout the Toronto area in determining whether a particular project comes within the residential or the ICI sector. Indeed, there was no evidence to show that in recent years any other guideline has been used for this purpose. It is perhaps also worth noting that the General Contractors Section of the Toronto Construction Association, which represents many of the large general contractors engaged in ICI construction, indicated at the hearing that it had no opposition to the terms of the MTABA —Building Trades Council agreement being applied to the projects in question.

28. In these circumstances, we are prepared to give considerable weight to the relevant provisions in the MTABA — Building Trades Council agreement (which provisions are also to be found in almost identical language in the MTABA — Local 183 agreement), as well as the practice that has grown up under that agreement. As already indicated, however, such an agreement can only be persuasive and the Board is under no obligation to follow it.

29. We turn now to specifically consider the project built for the Hospital for Sick Children. As detailed above, the building in question consists of twelve levels of self-contained dwelling units and seven parking levels. Under the following provision in the MTABA —Building Trades Council agreement, the building would appear to be considered an apartment building in that it is:

"a separate structure which includes space designed to be used for com­mercial, retail, and/or office purposes of not more than 50 per cent (50%) of the gross floor area (excluding parking and recreational facilities.)"

We do not find a test of majority use to be an unreasonable one for this type of mixed-use building, irregardless of the owner. We would also note that as a general proposition we do not regard the exclusion of parking facilities from this type of calculation as necessarily unreasonable, particularly in instances where it might reasonably be assumed that the parking will be used by persons who are in the building in connection with either the building’s residential or commercial uses. In the instant case, however, most of the parking facilities are aimed not at the users of the building, but rather at the general public who might be working at or visiting the Hospital. In this type of situation we are not prepared to exclude from our calculation all of the parking levels. Instead, we propose to exclude only the two underground parking levels which are to be used by the residents of the apartments and treat the remaining five levels of parking as a commercial or institutional use. Nevertheless, in that there are twelve levels of self-contained apartments in the building, it appears that over fifty per cent of the space in the building (excluding parking for the residents) is given over to residential use. In these circumstances, and given the prevailing pattern in the Toronto area of treating such projects as residential, we are satisfied that the project built by Van Bots did in fact come within the residential sector of the construction industry and not within the ICI sector.

30. The parties disagree on whether or not most of the space in the Salvation Army project is residential. In this regard, the Carpenters District Council contends that the play-rooms in the basement and on the first floor of the building as well as the mechanical room and certain other facilities should be counted as non-residential. One of the playrooms in the building is apparently for use by children resident in the building. In our view this is very much a residential use. The other playrooms are for children resident in nearby buildings on the same property. The evidence indicates that it is fairly common when residential buildings are built in clusters for the same owner that recreational facilities will be concentrated in one of the buildings, and that when this is done all of the recreational facilities in the building are generally regarded as being residential. We regard this as a very reasonable approach. It is also to be noted that the MTABA — Building Trades Council agreement indicates that for the purposes of determining whether a building is primarily residential or ICI, recreational facilities are not counted in the determination. Whether this approach is adopted, or whether all the playrooms are regarded as residential, which we feel would be the only reasonable alternative, the result is the same, namely, that the building is predominately residential in character. Accordingly, in all the circumstances we are satisfied that the project should be regarded as having come within the residential and not the ICI sector.

31. To summarize, we are satisfied that the work performed on both projects in question did not come within the industrial, commercial and institutional sector of the construction industry.

DECISION OF BOARD MEMBER H. KOBRYN;

1. This is my dissent from the majority in the above named cases as heard under section 150 of the Act which states as follows:

"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 117(e)."

That is the basic question which this Board must decide and this section gives the Board the right:

"'sector' means a division of the construction industry as determined by work characteristics and includes the industrial, commercial and institutional sector, the residential sector, the sewers and watermains sector, the roads sector, the heavy engineering sector, the pipeline sector and the electrical power systems sector."

Looking at the industrial, commercial and institutional sector commonly known as the ICI sector and the meaning of these three words as spelled in Webster's New World Dictionary, College Edition:

"Industrial" means (i) having the nature of or characterization by industry or industries, (2) of connected with, or resulting from industry, or industries, (3) for use by industries; said of products.

"Commercial" means (1) of or connected with commerce (2) made or done primarily for sale or profit.

"Commerce" means the buying and selling of goods, especially when done on a large scale between cities, countries, etc; business dealing; trade;

"Institutional" means of, pertaining to, or characteristic of an institution.

"Institution" means (i) corporate body organized to perform some particular function, often in education, research, charity, etc.; an institution of learning; a financial institution; also, the building or buildings housing such a body.

The above meanings describing each word in the ICI sector is clear and unambiguous such as the meaning for institutional: "of an institution, pertaining to an institution or characteristic of an institution."

2. The Legislature when it drafted and passed this legislation using the words "industrial", "commercial" and "institutional" to describe the ICI sector were using words that were clearly understood by the parties in the construction industry to mean work performed by employees in the industrial, commercial and institutional construction and to give these words any other meaning would only be bastardizing their true meaning and intent.

3. Based on the above meanings I find the two projects in dispute fall within the meaning of institutional as follows:

(1) West York Construction project was the Salvation Army Training College as clearly described in the drawings of Exhibit #9. This is a project ''of' and ''pertaining to'' the Salvation Army and is characteristic of that institution and its expansion training program. This is not a residential as defined in the collective agreement between the Metropolitan Toronto Apartment Builders Association and the Toronto Building and Construction Trades Council as outlined in Article 1 .01 and its sub-clauses (i) to (vi).

(2) Van Bots Construction project was the staff residence and parking garage for the Hospital for Sick Children as clearly described in the drawings of Exhibit #10. This is a project "of" and "pertaining to" the Hospital for Sick Children and characteristic of that institutions new staff residence and parking garage and is not a residential building as defined in the M.T.A.B.A. and T.B. & C.T.C. collective agreement in Article 1.01 and its sub-clauses (i) to (vi).

One of the major arguments put forward by management was the great emphasis on the difference that exists between residential construction as compared to commercial, institutional construction in the costs of the construction and the skill required by the employees perform­ing this construction. This very point comes out loud and clear when Mr. Bev Howard the President of Rampart Enterprises took the stand to give evidence?

"Q. — What is the difference in cost of residential forming and commercial forming?

A. — There is between a low residential bidder and low commercial bidder of 35 per cent.

Q. — Is there a difference in skills involved?

A. — I believe in a residential crew we have two or three leaders with skills comparable to people in a commercial crew and the rest of the crew is semi-skilled who work under the leader. In commercial field all people in the forming crew would be craftsmen.

Q. — Do you need a less perfect job in residential construction?

A. — Not really, but we do get less perfect job because the work is not controlled by architect. The standards are not as strict in residential as in commercial because most of the work is covered in residential."

4. The above reasons of cost cutting, using lesser standards and semi-skilled workmen are the worst reasons for assigning the work invoved in these two projects to residential construction when you consider the recent consultants' report to the Ontario Government, estimating it will cost up to Six Billion Dollars over the next 20 years to up-grade and conserve all the privately built high-rise rental apartments constructed between the late 1950's and 1981.

5. This report lists seven major areas that are in serious need of conservation and upgrading. Among the seven areas mentioned were weather protection, making roofs, walls and windows weatherproof, structural integrity of parking garages, building systems, such as galvanized plumbing, aluminum wiring and undersized (by today's standard) electrical services, occupant safety & equipment and fittings. The report has this to say about their "initial design'':

"The report says the major reason conservation will cost so much is "the inadequacy of the initial design and construction". Although information about the best construction and equipment is readily available, little of it reaches the ordinary workman or mechanic on the job."

6. I will also refer in part to an editorial in the Toronto Star dated August 25, 1983 headlined "Rent Controls Don't Ban Repairs":

"A report prepared for the Ontario Housing Ministry says it will cost six billion in the next twenty years to keep the Province's apartment buildings in good repair. At a glance that looks like a scary figure and it undoubtedly will be used by some people as an argument to get rid of rent controls. In fact it is no agreement at all for the abolition of controls. The report indicates that the main reason landlords face such massive repairs and maintenance bills is that the buildings were shoddily-built in the first place. So it would hardly be fair to lift controls and to saddle the tenants in one full swoop, with much of the cost of making up for builders' short-sighted cost cutting."

This cavalier attitude of the builders is not acceptable under any circumstances especially when one considers that for the average family the cost of shelter, whether it be ownership or rental is the largest expenditure they make in their lifetime. There are horror stories that abound of families with modest incomes paying as much as forty to fifty per cent of their incomes for rent. These families and all persons seeking shelter deserve the certainty of a properly constructed shelter which will not require above average maintenance or major repairs to shoddy construction the costs of which they have to foot.

7. The report and its statements say it all, short-sighted cost-cutting cannot be tolerated and must be stopped for the protection of the unsuspecting public. The general public must be protected in the same manner as the owner and the general public are protected in industrial, commercial and institutional building construction by the vigilant architects. Who in turn make certain that the standards of materials and equipment are strictly adhered to and the work performed is properly performed by qualified skilled tradesmen to his standards and specifications. This is the least that the general public should expect.

8. As further protection these skilled tradesmen are trained under the Apprenticeship and Tradesmen's Qualifications Act. When this Act was passed by Legislature it had two main purposes, (i) a highly trained and qualified workforce and (2) the protection of the general public from shoddy work performed by unqualified workmen. This legislation was to assure the public that the tradesman who performed building construction was fully trained in all aspects of his respective trade through an approved apprenticeship system with the assurance that he can skillfully and properly perform his work. That is why I reject the argument, we should have the work because we do cheaper.

9. For all the above reasons, I find the two projects in dispute fall within the industrial, commercial and institutional sector and the applicant should succeed.