Ontario Labour Relations Board
[1989] OLRB Rep. November 1173
3472-84-JD United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 463, Complainant V. Labourers' International Union of North America, Local 597 and Steen Contractors Limited, Respondents V. Mime and Nicholls/Vanbots Joint Venture, Intervener #1 V. Labourers' International Union of North America Ontario Provincial District Council, Intervener #2 V. Valentine Enterprises Contracting, a Division of Valentine Developments Limited, Intervener #3 v. Metropolitan Toronto Sewer and Watermain Contractors Association, Intervener #4 v. Ontario General Contractors Association, Intervener #5 v. The Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Intervener #6 v. Canadian Automatic Sprinkler Association, Intervener #7 v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada Local Union 853, Intervener #8 v. International Brotherhood of Electrical Workers Construction Council of Ontario, Intervener #9
BEFORE: Harry Freedman, Vice-Chair, and Board Members W. Gibson and C. A. Ballentine.
APPEARANCES: L. C. Arnold for the complainant; A. M. Minsky, Q. C. for Labourers' International Union of North America, Local 597 and Labourers' International Union of North America Ontario Provincial District Council; no one appearing for Steen Contractors Limited, Ontario General Contractors Association, Milne Nicholls/Vanbots Joint Venture, and Canadian Automatic Sprinkler Association; Richard I. Charney for Metropolitan Toronto Sewer and Watermain Contractors Association and Valentine Enterprises Contracting; A. J. Ahee and Lionel G. Clarke for The Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada Local Union 853 and International Brotherhood of Electrical Workers Construction Council of Ontario.
DECISION OF THE BOARD; November 2, 1989
One of the issues that the parties to this proceeding disagreed over was whether the work of installing storm sewers and manholes within the property lines and outside the perimeter of buildings at the General Motors stamping plant project in Oshawa came within the industrial, commercial and institutional sector of the construction industry. The Board in this decision determines that issue.
The complainant filed a complaint under section 91 of the Labour Relations Act over the assignment of work described as the handling and installation of storm sewer pipe and catch basins between the building and property lines at the General Motors stamping plant project -Oshawa (not including excavation and back filling), to members of the respondent Local 597. By decision dated April 3, 1985, the Board issued an interim order on the parties' agreement directing that a composite crew made up of members of the complainant and the respondent Local 597 be assigned to perform the work in dispute. Subsequently, after the work in dispute had been completed, the complainant sought leave of the Board to withdraw the complaint. By decision dated May 15, 1986, [1986] OLRB Rep. May 677, the Board refused to consent to the withdrawal of the complaint. The Board noted in that decision that these proceedings would continue, but that the complainant was free to withdraw from them and leave the matter to be decided based on the evidence and representations made by the remaining parties. The complainant continued as an active party in this proceeding.
When the hearing of this matter resumed, the Board ruled, by decision dated January 9, 1987, [1987] OLRB Rep. Jan. 137, that it would first hear and determine into which sector of the construction industry the work in dispute fell. As a result, a number of parties were subsequently added as interveners in the proceeding by decision dated October 30, 1987.
Pursuant to the Board's decisions of January 9, 1987 and October 30, 1987, the Board received extensive and detailed evidence and representations over numerous days of hearing and lengthy written argument following the conclusion of the hearings.
The position of the parties over the sector issue can be stated simply: the complainant and interveners #6, 8 and 9 asserted that the work in dispute came within the industrial, commercial and institutional sector of the construction industry; the respondent Local 597 and interveners #2, 3, 4 and 5 asserted that the work in dispute came within the sewers and watermains sector of the construction industry. The respondent Steen Contractors Limited and interveners #1 and 7 did not participate in the hearings nor did they submit written argument relating to the sector issue.
The original description of the work in dispute involved the handling and installation of storm sewers and catch basins within the property but outside the buildings at General Motors in Oshawa. The evidence established that the actual work in dispute did not involve catch basins, but rather manholes. The difference between the original description of the work in dispute and the evidence as to the actual work in dispute was not material to the resolution of the sector issue.
Steen Contractors Limited contracted with Valentine Enterprises Contracting for the supply and installation of outside storm sewers and manholes, which included excavating trenches and providing the necessary supports for the safe installation of the storm sewers. The storm sewers were to be connected to existing sewer lines on General Motors' property. The storm sewer pipe to be installed by Valentine consisted of 225 feet of 15 inch diameter concrete pipe. It was placed in trenches to a depth of between 10 feet and 15 feet from approximately 5 feet from the building and connected to an existing 36 inch diameter storm sewer pipe. There were three manholes also installed along that length of pipe.
The work that is the subject of the complaint under section 91 did not include the excavation and backfilling aspects of the sewer installation. Nevertheless, the parties adduced considerable evidence above the excavating and trenching work associated with sewer construction.
Counsel for the complainant sought to introduce evidence, through cross-examination, about the work related to the installation of underground storage tanks at the General Motors project. The nature of that cross-examination would have explored, among other things, the nature of the excavation work associated with that kind of underground installation. The Board ruled that that line of cross-examination was irrelevant for reasons set out in its decision of December 16, 1987. The Board also stated clearly in that decision that this proceeding and decision was not going to establish the line of demarcation between the sewers and watermains sector and the industrial, commercial and institutional sector, but rather would only decide the sector into which the work in dispute came.
The evidence made it abundantly clear that the characteristics of excavation work associated with sewer construction varied depending on the size of pipe and the depth and location of the trench. The evidence concerning excavation work related to firemain and watermain construction also established that the work characteristics of such excavation work varied, although not to the same degree as sewer excavation, because of the smaller range of sizes of pipe and the location and depths of the trenches into which those mains were placed. Watermains and firemains, when laid in trenches excavated for those lines only, were generally closer to the ground surface than sewer pipe and because such lines involved generally smaller diameter pipe, the excavation work associated with watermains and firemains generally involved shallower and narrower trenches than sewer pipe installation.
It seemed clear to us that the characteristics of excavation work are a function of the purpose of the excavation. We assume for purposes of this decision that excavation work for underground electrical conduit, storage tanks and process piping will also vary depending on the size of the item or pipe to be installed and the depth and location of the installation and that some characteristics of that excavation work are similar or identical to excavation work for sewer and watermain installation.
The Board noted in its December 16, 1987 decision that the installation of underground fuel storage tanks was not work within the sewers and watermains sector. Given the location and purpose of that construction on private property in connection with an industrial facility, we assumed that that type of construction work came within the industrial, commercial and institutional sector. Therefore, the excavation work associated with that installation would also come within that sector. It would be anomalous to conclude that excavation work carried out to install an underground fuel storage tank and the actual installation of that fuel storage tank are in different sectors of the construction industry.
It appeared to us that excavation work characteristics may differ depending on the purpose of the excavation. Nevertheless, excavation work for different purposes may share some of the same characteristics. While excavation work to install process piping and electrical conduit may be similar to the excavation work associated with the installation of firemains, watermains and sewers, it is not only the characteristics of the excavation work that determines the sector of the construction industry into which the work falls.
Section 117(e) of the Labour Relations Act defines "sector" as 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. "Construction industry" is defined by section 1(1)(f) of the Act as businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipelines, tunnels, bridges, canals or other works at the site thereof. Sections 117(e) and 1(1)(f), when read together, suggest that certain businesses may, by undertaking particular kinds of work, exhibit common characteristics, and when engaged in work specifically mentioned in both sections 1(1)(f) and 117(e) are likely to come within the sector that describes the work performed. While businesses which undertake activity referred to in section 1(1)(f) may fall into more than one sector of the construction industry depending on the construction activity undertaken, it is significant, in our view, that sewers and watermains are specifically mentioned in both sections 1(1)(f) and 117(e).
The Board in Heavy Construction Association of Toronto, [1973] OLRB Rep. May 245 commented on the similarity of terms appearing in what is now sections 1(1)(f) and 117(e). The Board noted at 248:
Although certain terms appearing in the definition of construction industry also appear in clause (e) of section 106 [now 117(e)], the relationship between these two definitions is not sufficient to afford any assistance in interpreting the meaning of the term sector.
It seems to us that the use of the term "work characteristics" in section 117(e) and the appearance of identical terms in both sections 117(e) and 1(1)(f) does suggest that work characteristics may also include the characteristics of the particular businesses that are undertaking the work referred to in both sections. We believe that it is relevant to our determination of sector to examine the characteristics of the particular segment of the businesses that are engaged in the kinds of work described in section 1(1)(f) and which are specifically identified as a sector of the construction industry in section 117(e) and whether those businesses have distinct work characteristics.
- The Board in West York Construction Limited, [1983] OLRB Rep. Dec. 2132, in determining a sector issue, relied on the practice that had developed with residential apartment builders. It also noted that the General Contractors Association, which represented general contractors engaged in industrial, commercial and institutional construction, did not oppose using the practice that had developed with respect to classifying mixed use buildings as a way of defining the sector into which construction of a mixed use building came. It therefore appeared to us that an established industry practice is certainly relevant, and may be significant, in assessing into which sector of the construction industry certain work falls. Having reached that conclusion, we also adopt the caution expressed by the Board in West York Construction Limited at paragraph 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.
The evidence established that the actual work of installing the sewers and manholes that were the subject of dispute was virtually identical to the work of installing the same type of sewers in a subdivision or under a public road. The differences that could arise related principally to the work associated with the excavation for the sewers. Those differences were not exclusively a function of whether the installation was within or outside of private property lines, but rather were dependent upon the size of the sewer, and the depth of the required trench. Other conditions affecting work characteristics, such as soil conditions, obstacles and underground services including gas mains, electrical conduit and telephone lines may exist on private property or under public roads.
Counsel for the complainant, joined by counsel for the interveners who supported the complainant, both argued that the industrial, commercial and institutional sector was primary, and therefore the Board should not permit any encroachment on the scope of that sector. The industrial, commercial and institutional sector is but one of several sectors of the construction industry. While it is the subject of a specific legislative scheme that sets it apart from the other sectors, it does not follow that the Board should define the line between sectors with a view to enlarging the reach of the industrial, commercial and institutional sector.
The approach taken by the Board in defining the sector into which work falls has been consistent. In Heavy Construction Association of Toronto, supra, the Board analyzed the definition of sector at 249-50:
Thus, it is clear that when the Legislature enumerated the specific sectors set out in the definition it must be taken to have applied the test set out in that section when enumerating the sectors named therein. That is to say the enumerated sectors are divisions of the construction industry determined by work characteristics. Thus, the enumerated sectors give us a key to interpreting the expression "work characteristics" and in turn once the expression work characteristics is clarified this will provide assistance in the correct interpretation of each of the enumerated sectors.
An examination of the enumerated sectors in clause (e) of section 106 [now 117(e)] leads to the conclusion that for all but one of the sectors listed the names given to these divisions of the construction industry relate to the use which is ultimately made of the construction. At first this may appear to be somewhat of a puzzle in that the connection between the use of the construction and the work characteristics may not be obvious. Open [sic] examination, however, it becomes clear that the use that is ultimately made of the construction will to a large extent determine the task or the work to be performed at the construction site. The task in turn will have certain characteristics which make that project distinguishable from other types of construction. Thus, each of the sectors enumerated, by focusing on the different end uses of the construction distinguishes one type of construction from other types of construction on the basis of peculiar tasks which are common to that type of project. The work characteristics which distinguish one sector from the other sectors of the construction industry may be shown in terms of the type of problems to be dealt with at the job site, the types of solutions resorted to at certain job sites, the material used, the relative importance of various specifications, the variety of skills and trades, and certain characteristic relations with employees. This list of characteristics is not to be thought of as exhaustive, but as examples of particular characteristics which differ between the various sectors enumerated in the Act.
Having given a meaning to the test for determining sectors on the basis of work characteristics we can now turn to use this meaning as a tool for obtaining the criteria which separate one sector from another sector of the construction industry. However, as noted above there is one sector which unlike the other sectors enumerated in the Act does not refer to the end use made of the construction in that sector. This is the heavy engineering sector, which is the subject matter of this application. The name of this sector comes from the view that the division of the construction industry with which it is concerned has distinct peculiarities. As the name implies the problems faced in such construction projects are primarily engineering problems as distinct from design or architectural problems. Thus, for instance, these are projects in which it is more important that they serve their intended function rather than be attractive. The other characteristic of construction in this sector is that it involves the use of "heavy equipment". That is equipment which is capable of lifting, for example, heavy steel or concrete beams or equipment that is capable of moving huge amounts of earth, stone or concrete. Perhaps the classic example of a heavy engineering project is the construction of a large bridge.
That approach was adopted by the Board in Ecodyne Limited, [1979] OLRB Rep. July 629.
The dispute over sector arises in this case because the work in dispute was carried out on private property. Nevertheless, as indicated above, the work characteristics of the work in dispute were virtually identical whether carried out on private property or under existing roads.
Counsel for the complainant also suggested that to find the work in dispute came within the sewers and watermains sector would fractionate one construction project into different sectors. The difficulty with counsel's argument arises from the concept of a construction project. Construction projects may be large or small, may carry on for only days or weeks or may extend over many months or years. Construction projects will have different phases, calling for different kinds of work to be done. In our view, all of the work done on a particular construction project, however that term is defined, need not necessarily come within the same sector of the construction industry. This is not to say, however, that the actual construction of, for example, a mixed use commercial/residential building will involve work that is within the residential sector for the residential part of the building and the industrial, commercial and institutional sector for the balance. That problem was noted in and commented upon in West York Construction Limited, supra, at 2141:
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 project as residential and another part as ICI. Indeed, it appears 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.
We note parenthetically that the Board in that case seemed to suggest that underground services and excavation would, of necessity, come within the same sector as the building. That may have been the situation in that case, but the Board did not have before it the same issue that is before us. Furthermore, the underground services that the Board may have had in mind in that comment might only have been underground connections within or adjacent to the building lines since both building projects were located in Toronto and may have already had existing sewer and water services in place prior to construction.
Where the construction work for a particular project is closely integrated, as would be the case in the construction of a building, then all of the work of that project would fall within the same sector. Where however the work to be done is distinct, the responsibility for it is clearly severable and where such work appears to patently fall within one of the enumerated sectors of the construction industry, there is not any compelling reason to distort the concept of sector in order to find that all of the work on a project falls within the same sector.
The installation of sewers and watermains in the construction industry has been carried out largely by specialty contractors who hold themselves out as sewer and watermain contractors. Their work involves principally the excavation and installation of sewers and watermains under roads, for subdivisions and on land that will be developed and used for residential and industrial, commercial and institutional construction. A portion of their work also involves sewer and watermain installations on private property outside of building lines, generally on large industrial sites. Sewer and watermain contractors will also infrequently perform excavation and installation of sewers and watermains, drains and other piping within building lines as well as other kinds of excavation work.
Mechanical contractors, who are principally engaged in the construction and installation of mechanical services for industrial, commercial and institutional buildings and building sites will also, on occasion, perform sewer and watermain installation within private property outside of building lines. Mechanical contractors will rarely, if ever install sewers and watermains under public roads or in subdivision road allowances. Generally, mechanical contractors are retained to do sewer and watermain installation on private property as part of a larger overall mechanical contract for the plumbing and drain work for a building. Even in such cases, the excavation for the exterior sewers and water lines on a project may be subcontracted to an excavating contractor who is often also a sewer and watermain contractor. Indeed, the work assignment dispute arose in this case because the mechanical contractor subcontracted both the excavation and installation of the sewers to Valentine Enterprises Contracting after being awarded that work as part of its mechanical subcontract from the general contractor.
Unionized sewer and watermain contractors in Ontario have collective bargaining relationships with the Labourers International Union of North America, and one or more of its Locals, and the International Union of Operating Engineers, Local 793. Unionized mechanical contractors have collective bargaining relationships with Locals of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada and perhaps another trade such as the Sheet Metal Workers.
In cases where a sewer and watermain contractor has installed sewers and water lines on private property but outside building lines, the award of that work has generally come from the general contractor, not the mechanical contractor. Often, the general contractor may separate outside sewer and watermain installation from interior plumbing and drain work. In those cases, the sewer and watermain work is almost invariably subcontracted to a sewer and watermain contractor. It appeared to us that whether outside sewer and watermain installation was part of a mechanical contract and subcontracted to a mechanical contractor or separated and awarded to a sewer and watermain contractor was the choice of the architects and engineers responsible for the construction and was based on whether outside sewer work was included in either the general contractor's or the mechanical contractor's portion of the job specifications.
The characteristics of the actual work in dispute did not differ because it was performed within private property lines. As one witness commented in his testimony, a sewer is a sewer is a sewer. That is, no matter where a storm sewer is installed, it retains its characteristic as a storm sewer and the work characteristics associated with its installation do not depend on whether it is on private property or under a road or road allowance.
We have also assumed that certain characteristics of sewer and watermain installation would be similar, if not identical, to the work characteristics of other underground installations that would come within the industrial, commercial and institutional sector. While there are similarities in some of the work characteristics, such as employee skills required in excavating, machinery and equipment used and job site problems and solutions for both the installation of underground process piping, storage tanks or electrical conduit and sewers and watermains, other work characteristics are clearly different. For example, the materials and specifications for sewer and watermain work are quite different from the materials and specifications for other underground services. Furthermore, the collective bargaining relationships will differ if a mechanical or electrical contractor performs that work, rather than a sewer and watermain contractor. In our view the installation of sewers have some different and distinct work characteristics that separate sewer installation work from other kinds of underground service work.
In the Heavy Construction Association of Toronto decision, supra, the Board made clear that a sector determination depended to a great extent upon the end use of the construction. At paragraph 16 of that decision, the Board discussed its definition of the heavy engineering sector:
However, if we try to to define the heavy engineering sector in terms of the emphasis of engineering problems and the use of large scale equipment, we are confronted with the problem that these two characteristics are not sufficient to distinguish projects which clearly fall into the other enumerated sectors. Thus, for instance the construction of a large refinery, steel mill, power station or sewage settling basin may have these same characteristics. We are thus faced with the potential conflict that any project in any of the sectors can arguably be placed in the heavy engineering sector if the problem is an engineering problem and the equipment used is large scale or heavy equipment. Clearly, section 106(e) should not be interpreted in a way to allow such an ambiguity or uncertainty as to the meaning of the term "sector". The problem, however, is not difficult to overcome. As pointed out earlier, the other sectors are defined in terms of the use ultimately made of the construction. This has the clear advantage of determining the sector at the earliest stages of the project. Thus any uncertainty as to whether the project falls in one sector or another can be removed even before work has commenced at the job site. The removal of such an uncertainty is, of course, a desirable goal in labour relations and indeed the Legislature in its wisdom has seen fit to remove the uncertainty from the definition by labelling the other sectors with names designating the end use of the project.
[emphasis added]
In this case, the end use of the work in dispute is a sewer, albeit one that is used to carry rain water away from an industrial building. The work was performed by a sewer and watermain contractor in a manner that did not differ from the manner in which it and other sewer and watermain contractors install sewers on private property, under roads and in subdivisions. Its installation on private property did not affect the nature or quality of the work. The characteristics of that work, while similar to some characteristics of excavation work in the industrial, commercial and institutional sector, is identical to all other work that is clearly part of the sewers and watermains sector. We therefore conclude that the work in dispute was work which came within the sewers and watermains sector of the construction industry.
We are fortified in our conclusion by the Board's earlier determination in Metropolitan Toronto Sewer and Watermain Contractors Association, [1986] OLRB Rep. Oct. 1362. In that case, the Board concluded that the sewers and watermains sector included sewer work on private property to within three feet of a building line, regardless of the ultimate use of the property.
We also wish to emphasize that our conclusion of this issue relates only to the work in dispute, that is, the installation of storm sewers on the General Motors' property. As we noted above, other excavation work related to the installation of underground services which are not sewers or watermains does not come within the sewer and watermain sector of the construction industry.
Having regard to the foregoing, the Board hereby declares that the work in dispute in this proceeding comes within the sewers and watermains sector of the construction industry.
Should any of the parties to this complaint wish to have the merits of this work assignment dispute determined, the Registrar must be advised within fifteen days of the date of the release of this decision. Otherwise it will be deemed terminated.