[1983] OLRB Rep. October 1711
0968-83-R International Union of Operating Engineers, Local 793, Applicant, v. W.
Rourke Ltd., Respondent.
BEFORE: Ian C. Springate, Vice-Chairman, and Board Members E. J. Brady and H. Kobryn.
APPEARANCES E. A. Ford and L. Budge for the applicant; T C. Barber, D. Rourke, H. Kack and R. Dubeau for the respondent.
DECISION OF THE BOARD; October 11, 1983
This is an application for certification filed pursuant to the construction industry provisions of the Labour Relations Act.
At the outset of the hearing into the application, counsel for the respondent challenged the jurisdiction of the Board to consider the application. According to counsel, for labour relations purposes the respondent comes within federal as opposed to provincial jurisdiction.
The respondent is a construction company headquartered in the City of Quebec. Although most of the respondent's work is performed in the Province of Quebec, it is also active in the city of Ottawa and surrounding areas in the Province of Ontario. Fully, ninety per cent of the respondent's work in Ontario is performed pursuant to a contract with Bell Canada, a firm both parties agree is a federal work or undertaking whose employees come within federal jurisdiction for labour relations purposes. Approximately half of the respondent's work for Bell Canada involves trenching and the installation of new telephone cables. The cables are actually "hooked up" to Bell Canada's existing lines by Bell Canada craft employees. The other half of the respondent's work for Bell Canada is related to the repair of existing underground cables. Generally the respondent's employees do no more than expose the cable so as to enable Bell Canada employees to perform the actual repair work. On occasion, the respondent's employees do remove lengths of old cable, and then install new replacement cable. Before the old cable is removed, however, it is first disconnected by Bell Canada employees, and it is Bell Canada employees who later hook the new cable into the Bell Canada system.
Approximately ten per cent of the respondent's work in Ontario is performed for two cable television companies and for Ottawa Hydro. This work involves laying conduit and underground cable, with the procedures apparently being similar to those involved with the Bell Canada work. The respondent was not challenged when it contended that the two cable television companies fall under the regulatory control of the federal government, although it acknowledged that Ottawa Hydro does come within provincial jurisdiction.
The position of the respondent is that the work it performs is an integral part of the operations of Bell Canada and the two cable firms, and accordingly, for labour relations matters it also comes within federal jurisdiction. At the hearing, the Board orally rejected this contention. As opposed to Bell Canada and the cable firms, the respondent is neither in the inter-provincial telephone business nor in the cable television business. It is a construction company, and in our view, the federal government does not have jurisdiction over labour relations matters affecting it.
One of the first principles of Canadian Constitutional Law is that the Federal Government has no general jurisdiction over labour relations, but rather such general jurisdiction lies with the provincial legislatures. See: Toronto Electric Commissioners v. Snider (1925) A.C.
Parliament does, however, have authority over labour relations where such authority is an integral element of its primary competence over some other federal subject. See: In the Matter of a Reference as to the Validity of the Industrial Relations and Disputes Investigation Act 1955 CanLII 1 (SCC), S.C.R. 529 ("the Stevedoring case"). The Supreme Court of Canada dealt with the constitutional status of construction companies in Construction Montcalm Inc. v. The Minimum Wage Commission 79 CLLC ¶14,190. The employer in that case was a construction company engaged in building the runways at Mirabel Airport in the Province of Quebec. In response to a claim by provincial authorities that Quebec's minimum wage laws and regulations were applicable to its employees, the employer submitted that Parliament's exclusive jurisdiction over aeronautics meant that labour relations matters affecting its employees came under federal jurisdiction. BeetzJ, on behalf of a majority of the Court, rejected that submission as follows:
"The construction of an airport, it was argued is as much a matter for exclusive federal control as the construction of a federal railway.
In my view, the main submission is not supported by the principles enunciated above: it does not meet the test set out in the Stevedoring case (1955 CanLII 1 (SCC), S.C.R. 529) according to which Parliament has no authority over labour relations except insofar as such authority is an integral element of its primary jurisdiction over some other matter; furthermore, it implicitly but clearly ignores the requirement of the Agence Maritime and Letter Carriers' cases that an undertaking, service or business be not characterized as a federal or provincial one on account of casual factors.
The construction of an airport is not in every respect an integral part of aeronautics. Much depends on what is meant by the word "construction". To decide whether to build an airport and where to build it involves aspects of airport construction which undoubtedly constitute matters of exclusive federal concern.. .This is why decisions of this type are not subject to municipal regulation or permission. . . Similarly, the design of a future airport, its dimensions, the materials to be incorporated into the various buildings, runways, and structures, and other similar specifications are, from a legislative point of view and apart from contract, matters of exclusive federal concern. The reason is that decisions made on these subjects will be permanently reflected in the structure of the finished product and are such as to have a direct effect upon its operational qualities and, therefore, upon its suitability for the purposes of aeronautics. But the mode or manner of carrying out the same decisions in the act of constructing an airport stand on a different footing. Thus, the requirement that workers wear a protective helmet on all construction sites including the construction site of a new airport has everything to do with construction and with provincial safety regulations and nothing to do with aeronautics. See Regina v. Beaver Foundations Ltd. (1968 CanLII 280 (ON MAGCT), 69 D.L.R. 649 and Regina v. Concrete Column Clamps (1961) Ltd., Regina Louis Donolo Inc. (1971 CanLII 742 (ON HCJ), 1 O.R. 42. See also Re United Association of Journeymen, etc., Local 496 and Vipond Automatic Sprinkler Co. Ltd. (1976 CanLII 305 (AB SCTD), 67 D.L.R. (3d) 381, where Cavanagh J. of the Alberta Supreme Court held that "the fact of construction of a building called an air terminal does not...show that the construction is connected with aeronautics" and that while an aerodrome is a federal work, employees constructing such a building are subject to provincial labour relations. In my opinion what wages shall be paid by an independent contractor like Montcalm to his employees engaged in the construction of runways is a matter so far removed from aerial navigation or from the operation of an airport that it cannot be said that the power to regulate this matter forms an integral part of primary federal competence over aeronautics or is related to the operation of a federal work, undertaking, service or business
In submitting that it should have been treated as a federal undertaking for the purposes of its labour relations while it was doing construction work on the runways of Mirabel, Montcalm postulates that the decisive factor to be taken into consideration is the one work which it happened to be constructing at the relevant time rather than the nature of its business as a going concern. What is implied, in other words, is that the nature of a construction undertaking varies with the character of each construction project or construction site or that there are as many construction undertakings as there are construction projects or construction sites. The consequences of such a proposition are far reaching and, in my view, untenable: constitutional authority over the labour relations of the whole construction industry would vary with the character of each construction project. This would produce great confusion. For instance, a worker whose job it is to pour cement would from day-to-day be shifted from federal to provincial jurisdiction for the purposes of union membership, certification, collective agreement and wages, because he pours cement one day on a runway and the other on a provincial highway. I cannot be persuaded that the Constitution was meant to apply in such a disintegrating fashion.
To accept Montcalm' s submission would be to disregard the elements of continuity which are to be found in construction undertakings and to focus on casual or temporary factors, contrary to the Agence Maritime and Letter Carriers' decisions. Building contractors and their employees frequently work successively or simultaneously on several projects which have little or nothing in common. They may be doing construction work on a runway, on a highway, on sidewalks, on a yard, for the public sector, federal or provincial, or for the private sector. One does not say of them that they are in the business of building runways because for a while they happen to be building a runway and that they enter into the business of building highways because they thereafter begin to do construction work on a section of a provincial turnpike. Their ordinary business is the business of building. What they build is accidental. And there is nothing specifically federal about their ordinary business."
- A case similar in certain respects to the one now before us came before the Saskatchewan Court of Queen's Bench in Henuset Rentals Ltd. v. United Assoc. Journeymen and Apprentices et al, 79 CLLC ¶14,194. In that case, it was argued that the Saskatchewan Labour Relations Board had erred in deciding that it had jurisdiction to certify a union to represent employees of a firm engaged in the construction of an interprovincial pipeline. It was the employer's position that the construction work formed an integral part of an interprovincial undertaking and, hence, came within federal jurisdiction. The Court, relying on the Supreme Court of Canada decision in Montcalm Construction, rejected this contention, and concluded that while the operation of an interprovincial pipeline comes within federal jurisdiction, its construction does not. We would also refer to the decision of the Federal Court of Appeal in Canada Air Line Employees' v. Wardair Canada (1975) Ltd. et al [1974] 2 F.C. 91, where it is stated:
"A particular activity may be reasonably incidental to the operation of a federal work, undertaking or business without being an essential component of such operation. For example, an interprovincial railway may have its own laundry facilities or its own arrangement for preparing food for passengers, or, alternatively, it may send its dirty linen to an outside laundry or buy prepared food. Generally speaking, where such an activity is carried on by the operator of the federal work, undertaking or business as an integral part thereof, it is indeed a part of the operation of the federal work, undertaking or business. Where, however, the operator of the federal work, undertaking or business carries on the operation thereof by paying ordinary local businessmen for performing such services or for supplying such commodities, the business of the person performing the service or preparing the commodities does not thereby automatically become transformed into a business subject to federal regulation. Compare the decision of the Supreme Court of Canada in the Construction Montcaim case (1978 CanLII 18 (SCC), 25 N.R. 1, that was delivered last December.
On the basis of the above noted cases, we tend to view that if the work in question was being performed by direct hire employees of Bell Canada and the two cable companies as an integral part of their businesses, then the work would come under federal jurisdiction. However, Bell Canada and the cable companies are not performing the work themselves but have instead contracted with the respondent to perform it. There is nothing especially "federal" about the work which the respondent performs, especially since it is not involved in hooking up cables to existing lines. The result might be different if the respondent's employees actually did maintenance and repair work on existing Bell Canada telephone lines. Such work is, however, performed by Bell Canada employees, the respondent's employees doing no more than exposing the cables. While the respondent's employees do at times replace lengths of existing cable, it is Bell Canada employees who disconnect the old cable and then later connect the new cable to the Bell Canada system. We view all of the work performed by the respondent's employees as the type of construction work covered by the reasoning of the Supreme Court of Canada in Montcalm Construction; and accordingly, conclude that the employees come within provincial jurisdiction for labour relations purposes.
At the hearing the applicant requested that the bargaining unit be described in terms of all unrepresented trades in the employ of the respondent on the date of the making of the application, exclusive of those employed in the industrial, commercial and institutional sector (the "ICI sector"). On the date of the filing of the application, the great majority of the respondent's employees were construction labourers, although it also employed a number of carpenters, truck drivers and equipment operators. For its part, the respondent contended that all of its employees were employed in the ICI Sector.
The material before us indicates that on the date of the filing of the application, all of the respondent's employees in the Ottawa area were laying new and replacement telephone cables under municipal streets for Bell Canada. The respondent does not install the connections between Bell telephone cables and individual premises, and accordingly, except for the occasional right of way, its employees generally do not go onto private property.
The only reference in the Act to the various sectors of the construction industry is in section 1 17(e),which provides as follows:
"'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."
The applicant contends that the work being performed by the respondent's employees is similar to work in the sewers and watermains sector, and accordingly, the Board should conclude that the work falls within that sector. As an alternative submission, the applicant contends that the work should be viewed as coming within the pipeline or electrical power systems sectors. The respondent's answer to these submissions is that on the application date its employees were not engaged in laying sewers, watermains, pipelines or electrical cables. The respondent characterizes the telephone cables that its employees were installing as part of the facilities utilized by Bell Canada in furthering its commercial operations, and submits that the work should be viewed as coming within the ICI sector.
It is to be noted that the Act does not contain a definition of the term "industrial, commercial and institutional sector". However, in our experience, the term is not generally applied to work on the public domain and, in particular, not to work performed in connection with public roads. In this regard, section 117(e) of the Act makes it clear that road construction, as well as the construction of sewers and watermains which frequently run under roads, are not part of the ICI sector. In the Underground Services Limited case [1981] OLRB Rep. July 1012 the Board concluded that repair work on the columns of the elevated Gardiner Expressway in Toronto did not come within the ICI sector. We believe we can also take notice of the fact that work similar to that being performed by the respondent is frequently performed by firms referred to as utility contractors, and that these contractors have entered into agreements other than the provincial ICI agreements. Taking all of these considerations into account, we are of the view that the work in question does not come within the ICI sector. Given the manner in which the sector issue has arisen in this case, there is no need for us to reach any definitive conclusion as to what sector the work does come within, whether it be one of the sectors enumerated in section 117(e), or perhaps another sector not there referred to. It is sufficient for these proceedings that we find that the work does not come within the ICI sector.
Having regard to the above, and the provisions of section 6(1) of the Act, the Board finds that all construction labourers, carpenters, truckdrivers and all employees of the respondent engaged in the operation of cranes, shovels, bulldozers and similar equipment, and those primarily engaged in the repairing and maintaining of same, in the Regional Municipality of Ottawa-Carleton and the United Counties of Prescott and Russell, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.
The Board is satisfied that on the basis of all the evidence before it not less than forty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on August 15, 1983, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
A representation vote will be taken of the employees of the respondent in the bargaining unit. All employees of the respondent in the bargaining unit as of the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote.
Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.
The matter is referred to the Registrar.```