United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 552 v. The Board of Education for the City of Windsor
[1983] OLRB Rep. May 831
1791-82-R United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 552, Applicant, v. The Board of Education for the City of Windsor, Respondent, v. Canadian Union of Public Employees, Intervener.
BEFORE: R. A. Furness, Vice-Chairman, and Board Members S. Cooke and I. Stamp.
APPEARANCES: S. B. D. Wahl and J. Boyle for the applicant; L. P Kavanaugh, G. W King, W T Mickle, W Piliotis, R. Dureno, E. Laub and A. Lawrenson for the respondent; Helen O’Regan for the intervener
DECISION OF THE BOARD; May 18, 1983
1The applicant has applied for certification with respect to a bargaining unit defined as "all plumbers, pipefitters and steamfitters and all plumber, pipefitter and steamfitter apprentices in the employ of the Respondent: (i) in the Industrial, Commercial and Institutional sector of the Construction Industry in the Province of Ontario; and (ii) in all other sectors of the Construction Industry save and except the Industrial, Commercial and Institutional sector in the County of Essex (O.L.R.B. geographic area (1) [sic], save and except non-working foremen and persons above the rank of non-working foreman".
2The respondent has suggested that the appropriate bargaining unit ought to be described as: "All employees of the Respondent who are engaged in plumbing trade work in the Respondent's maintenance department, save and except those performing work designated by the Respondent as preventive maintenance and performed by persons employed by the Respondent in the classification of 'Preventive Maintenance' referred to in the collective agreement between the Respondent and C.U.P.E. Local 27 and save and except non-working foremen, those above the rank of non-working foreman and persons not regularly employed for more than twenty-four hours per week".
3The respondent adopted the position that it was neither an "employer" nor a member of any "employer bargaining agency" as defined in section 117 of the Labour Relations Act. The respondent also adopted the position that it was neither a member of any "sector" as defined in section 117(e) nor a member of any "employer bargaining agency as defined in section 137(l)(d). The respondent also opposed this application under the construction industry provisions of the Act on the grounds that it did not carry on a business in the construction industry, did not employ any plumbers, pipefitters, steamfitters or their apprentices in the industrial, commercial and institutional sector of the construction industry in Ontario or any other sector of the construction industry.
4The intervener intervened in order to protect its bargaining rights for permanent employees of the respondent who are engaged in caretaking, maintenance and stockroom work. The current collective agreement between the intervener and its Local 27 and the respondent excludes, inter alia, temporary employees and union craftsmen employed on the maintenance staff if they continue membership in their own craft unions. The applicant made it clear to the intervener that this application related to the alleged construction industry aspects of the respondent's operations. At this point the intervener withdrew from this application and did not participate further in this proceeding.
5The bargaining rights of the applicant may be traced back to a certificate which was issued by the Board on February 27, 1967 (see Board File No. 12733-66-R). The decision therein is in standard form, is without reasons and is noteworthy on two grounds. Firstly, while a craft unit was determined to be appropriate for collective bargaining, the exclusion from the bargaining unit is "foremen and persons above the rank of foreman". Secondly, the Board did not find that the application was an application for certification within the meaning of section 92 [now section 119] of the Act and did not define the appropriate bargaining unit with reference to a geographic area. The bargaining unit defined by the Board on February 27, 1967, was "all plumbers and plumbers' apprentices in the employ of the respondent, save and except foremen and persons above the rank of foreman". The fact that the Board did not make a finding under section 119, did not exclude "non-working foreman and persons above the rank of non-working foreman" (as would be customary in the construction industry), but rather excluded "foremen and persons above the rank of foreman" (as would be customary in most other circumstances) from the bargaining unit and did not define the bargaining unit with respect to a geographic area (in that instance, the Counties of Essex and Kent), all point to the conclusion that the bargaining rights granted on February 27, 1967, were with reference to non-construction endeavours of the respondent and with no reference to any present or future activities in the construction industry. The Board finds the bargaining rights granted in the certificate dated February 27, 1967, did not extend to and cover bargaining rights in the construction industry.
6The applicant and the respondent subsequently entered into a collective agreement which was retroactive to January 1, 1966, and which expired on April 30, 1969. Under that collective agreement permanent employees (those hired through the applicant's hiring hall and employed for a year or more) received ninety per cent of the total of the applicable rate plus a welfare allowance. The parties provided a working definition of maintenance work in article 9 of that collective agreement. The applicant and the respondent did not negotiate a new collective agreement. However, in 1971, the applicant and the respondent reached an understanding which has continued since that time. In this understanding, the respondent has paid to the employees who are members of the applicant eighty-five per cent of the rate in the provincial collective agreement together with benefits with respect to welfare, pensions, and supplementary unemployment benefits. These employees also receive all of the fringe benefits received by the respondent's employees who are covered by its collective agreement with the intervener and its Local 27.
7In March of 1982, the respondent extended invitations to the applicant and five other craft trade unions in the construction industry to negotiate new collective agreements. Subsequently, these five other trade unions concluded separate collective agreements with the respondent. The applicant did not conclude a collective agreement with the respondent. In our opinion, there is no significance to be attributed, within the context of the instant application, to the fact that five trade unions did conclude a collective agreement and one trade union did not conclude a similar collective agreement. The objectives and perceptions of trade unions are frequently different and the alleged characterization by these five other trade unions of the respondent's operations as being within the confines of maintenance work is in no way binding on the conduct of the applicant.
8The applicant has bargaining rights with respect to the respondent's maintenance operations. In this application the applicant seeks to obtain bargaining rights with respect to the respondent's alleged activities in the construction industry. The evidence establishes that the respondent is engaged on a continuing basis in performing routine maintenance in connection with its fifty-five separate buildings and structures. Towards the end of 1982, the respondent was engaged in a programme to install replacements for obsolete and/or non-functioning radiators and thermostats so that its heating system would perform more economically. It is the intention of the respondent to monitor its new heating system by using a computer with a view to a more efficiently operated system. The programme consists of restoring the functioning of the heating system which had in part ceased to function adequately and which no longer functioned economically. Such work, in our view, is properly characterized as repair work rather than as maintenance work. See The Master Insulators Association of Ontario Inc., [1980] OLRB Rep. Oct. 1477. Repair work is included in the definition of construction industry in section 1(l)(f) of the Act.
9The evidence before the Board establishes that at least two of the seven plumbers employed by the respondent on the date of the filing of this application were engaged in repair work and, therefore, work in the construction industry. As stated earlier, the applicant already possesses bargaining rights with respect to the employees who are engaged in performing routine maintenance functions for the respondent. The applicant has sufficient membership support to satisfy the requirements for certification with respect to the activities of the respondent which fall under the heading of construction industry whether two or any additional plumbers were performing construction work on the date of the filing of this application.
10The respondent has argued that it is not an employer in the construction industry and is not operating a business in the construction industry as defined in section 117(c) of the Act. The respondent also argued that it was not engaged in performing work which would fall into a sector as defined in section 117(e) of the Act. There can be no doubt that the principal business of the respondent is that of education. As a necessary part of its principal business of providing services and education, the respondent must necessarily perform a variety of ancillary activities. Such activities or businesses consist of routine maintenance with respect to its buildings, and towards the end of 1982, the modernization and repair of its heating system as referred to previously. In Tops Marina Motor Hotel 64 (3) CLLC ¶16,004, the Board held that in order to operate a business in the construction industry, the construction business need not be the principal or only business of the employer of the labour. Similarly, the Board has also held that on occasions a board of education may enter into a business in the construction industry. See: Kapuskasing Board of Education, [1972] OLRB Rep. June 583. In addition, the Board has also found that municipalities may on occasions operate businesses in the construction industry. See, for example, City of Toronto, [1978] OLRB Rep. Dec. 1145 and Municipality of Metropolitan Toronto, [1980] OLRB Rep. Jan. 62. The Board has also held that an employer may simultaneously carry on the businesses of maintenance and construction. See, for example, M. G. Burk Investments, Board File No. 0640-76-R, decision dated February 28, 1978. In considering whether a business is being operated, the Board has also held in the Kapuskasing Board of Education, supra, that it is not necessary that the business be carried on with a view to making a profit. See also, the Municipality' of Metropolitan Toronto, supra. The work performed on the date of the filing of this application is clearly work which would fall within the industrial, commercial and institutional sector of the construction industry. There can be no doubt that work performed on schools falls within the institutional portion of the industrial, commercial and institutional sector. The fact that the respondent has not previously been "a member of an employer bargaining agency" and may not have previously performed work in any sector of the construction industry does not insulate the respondent from the consequences of its activities in the construction industry on the date of the filing of this application.