United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 628 v. Abitibi-Price Inc., 1986 CanLII 1516

[1986] OLRB Rep. December 1613

0175-84-R The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 628, Applicant, v. Abitibi-Price Inc., Respondent, v. Local Union 1565 - International Brotherhood of Electrical Workers, Intervener #1, v. Canadian Paperworkers Union, Locals 67, 40, 32, 109, 90, 132, 134, 133, 239, 249, Intervener #2, v. Inter­national Association of Machinists and Aerospace Workers, Thunder Bay Lodge 1120, Intervener #3

BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members J. A. Ronson and H. Kobryn.

DECISION OF N. B. SATTERFIELD, VICE-CHAIRMAN, AND BOARD MEMBER H. KOBRYN; December 24, 1986

1. This application for certification was made under the construction industry provisions of the Labour Relations Act.

2. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargain­ing agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on May 14, 1982, the designated employee bargaining agency is the United Association of Journey­men and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada.

3. The applicant seeks to be certified for its normal construction trade bargaining unit of plumbers, steamfitters and their respective apprentices, including welders engaged in the plumbing and steamfitting trade. The geographic scope of the unit it has proposed is the Province of Ontario with respect to the industrial, commercial and institutional ("ICI") sector of the construction industry and in the Board's geographic area #22 with respect to all other sectors of the construc­tion industry.

4. The applicant takes the position that the respondent operates a business in the construction industry and is an employer of employees engaged in construction work in the ICI sector of the construction industry. The respondent describes its business as manufacturing newsprint and contends that it does not operate a business in the construction industry and is not an employer of employees engaged in work in the ICI sector of the construction industry. In the alternative, should the Board find that the respondent operates a business in the construction industry, the res­pondent takes the position that its employees have performed the same or similar work for many years at its Mission Mill in Thunder Bay, Ontario, under the terms of its collective agreements with the intervener trade unions. Thus, were the Board to find the unit sought by the applicant to be appropriate, the application would constitute an attempt to carve out from the intervener trade unions' existing bargaining units a unit comprised solely of the applicant's normal trade. That cir­cumstance raises the issue of whether there are employees who at the times material to this appli­cation, were engaged in construction work in the ICI sector in the respondent's other paper mills in Ontario.

5. The interveners Canadian Paperworkers Union, Locals 67, 40, 32, 109, 90, 132, 134,133, 239, 249 ("the CPU"), International Association of Machinists and Aerospace Workers, Thunder Bay Lodge 1120 ("the IAM") and Local Union 1565 - International Brotherhood of Elec­trical Workers ("the IBEW") also take the position that, if the Board finds the respondent to be operating a business in the construction industry, they represent the respondent's employees who perform construction work and such work is covered by their respective collective agreements with the respondent. The CPU claims to represent plumbers and steamfitters, the JAM claims to repre­sent welders and the IBEW claims to represent electricians.

6. This decision deals with the issue of whether the respondent operates a business in the construction industry. The question of whether it is an employer of employees engaged in construc­tion work is implicit in the issue. The relevant sections of the Act are clause (f) of section 1(1) and clauses (b) and (c) of section 117. They provide as follows:

1.-(1) In this Act,

(f) "construction industry" means the businesses that are engaged in constructing, alter­ing, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site thereof.

117. In this section and in sections 118 to 136,

(b) "employee" includes an employee engaged in whole or in part in oft-site work but who is commonly associated in his work or bargaining with on-site employees;

(c) "employer" means a person who operates a business in the construction industry, and for purposes of an application for accreditation means an employer for whose employ­ees a trade union or council of trade unions affected by the application has bargaining rights in a particular geographic area and sector or areas or sectors or parts thereof.

7. The applicant states in its application that the employees whom it seeks to represent are employed on the respondent's top wire former project at its Mission Mill in Thunder Bay, Ontario. The respondent operates two other paper mills in Thunder Bay and still others elsewhere in Ontar­io. The top wire former project ("the project") was comprised of four components. These were described by Norman Jones, who was assistant mechanical superintendent of the mill during the project, as being:

(1) installing the top wire former on the Fordinaire system;

(2) the warm water system;

(3) the white water system; and

(4) the hot water rolls of the calender stack.

The purpose of the project was to improve the finished quality of the newsprint produced on the mill's paper machine. Jones told the Board that he was advised by his superiors that the work would be undertaken directly by the respondent and not let out to contract. Mill management subsequently decided to hire extra tradesmen for the project because its regular employees were primarily occupied by their regular tasks of keeping the mill operating 24 hours per day, seven days a week. While this application is concerned with plumbers, steamfitters and welders, the respondent hired other trades, including for example, millwrights and electricians, for work on the project.

8. The Board consistently describes an appropriate trade bargaining unit for the applicant and other local unions of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada in terms of plumbers and steamfitters (and their respective apprentices). The applicant and respondent, on the other hand, referred to persons working at this trade as "pipefitters". For ease of reference, therefore, the Board will employ the term "pipefitter" in this decision when referring to the applicant's trade. The term "welder", unless the context requires otherwise, will be used in reference to persons employed as welders in the pipefitting trade.

9. Regular mill tradesmen began preliminary work on the project shortly prior to April 1, 1984. Pipefitters and welders were hired for the project at the beginning of April and this appli­cation was made April 17th. Pipefitters and welders hired for the project worked on it throughout its duration. The installation of the top wire former, the final phase of the project, began on Sep­tember 4, 1984, when the papermaking process was shut down for 19 days for this purpose. The hired pipefitters and welders began work on the warm water and white water systems components of the project and were on that work when this application was made. The other two components of the project had not been started.

10. Jones told the Board that warm and white water are always involved in the papermaking process. White water is drawn off the process, stored and warm white water is reused at various stages of the process. If insufficient white water is available for reuse, from time to time it becomes necessary to introduce cold water which may cause the paper sheet to break. A break in the sheet causes a temporary shutdown in that part of the process with the attendant loss of production. Prior to April 1st, the mill had capacity for storing white water and reclaiming it for further use in the papermaking process. The purpose of the work on the warm and white water systems was to increase and improve the transportation and storage of white water, since one of the benefits of the top wire former project was to allow more white water to be drawn off the papermaking process than before as a result of a new foil system used jointly with the top wire former. The respondent adapted to this use existing storage facilities which had been used for other purposes. This phase of the project resulted in increased storage capacity for white Water and a more efficient system of collecting, storing and returning warm white water.

11. In order for the respondent to be able to transport surplus white water to storage and back into the operation when needed, it was necessary to install new piping and pumps and rework existing piping. Jones estimated the piping for the warm and white water systems to represent 15 per cent of the total piping in the mill. The revised systems involved approximately 60 per cent new piping and 40 per cent original or reworked piping. Most of the piping work on the project was involved with its warm and white water components. David Brimmel's evidence- in-chief for the applicant that there was over one mile of new piping installed was not seriously challenged. Gor­don Carr, another pipefitter, and Rick Hyter, a welder, who testified for the applicant also worked on this phase of the project. The work included cutting out and removing existing pipe, replacing it with new or reconditioned pipe, re-routing piping systems and installing new piping systems. Con­necting the piping and tying it into the vessels and equipment it supplied involved various kinds of welding.

12. Jones, who has been an employee of the respondent for 37 years and assistant mechani­cal superintendent for 10 years described a number of projects carried out in the mill during the past five years by its own tradesmen, including its pipefitters and welders, which involved the installation of piping for various purposes including improving the efficiency of the mill and the quality of its products, the welding of pipe joints and the hooking up of the piping to pumps and other equipment. The work was carried out under the CPU and IAM collective agreements.

13. Respondent counsel's argument in support of the contention that the respondent does not operate a business in the construction industry was made in three parts. First, that the work being undertaken at the respondent's Mission Mill in Thunder Bay at the time material to this application is not work falling within the definition of construction industry in section 1(1)(f) of the Act when the words of the section are given a strict reading. Second, the work at issue is not construction industry work within the meaning of section 1(1)(f) if the Board examines the context in which the work in issue was performed, how work of a similar nature historically has been per­formed by the respondent and the industrial relations consequences of introducing building trades unions into the mill. Third, the respondent is not an employer in the construction industry within the definition of employer set out in section 117(c) of the Act.

14. With respect to the first branch of his argument, counsel submits that, in order for there to be construction, the work activity alleged to be construction must be done on "... buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges [and] canals...;". Counsel submits that the work in issue is work which was directed to the respondent's paper machine and the systems which make up the papermaking process. Thus, the work was directed to the contents of the buildings which house that process and not the buildings themselves or any of the ele­ments, like the air handling system, which are a fixed part of the buildings, or to any of the objects included in the definition. For that reason, the work activity was not directed to the objects described by any of the nouns employed in the definition of construction industry in section 1(1)(f) of the Act. Nor did the work activity consist of "...constructing, altering, decorating, repairing or demolishing...". Therefore the work activity in issue does not fit within that definition and is not construction work.

15. The second branch of respondent counsel's argument revolves around the distinction between repair work and maintenance work arising out of the reference to "repairing" in the section 1(1)(f) definition of construction industry, and the absence from it of the words "maintaining" or "maintenance". Counsel cited the Board's decision in The Master Insulators' Association of Ontario Inc., [19801 OLRB Rep. Oct. 1477 as the authority for differentiating construction work (both new construction and repair) and maintenance work which is not construction. He points to paragraphs 28 and 29 of the decision quoted below as expressing the test for that differentiation:

16. With the exception of the work performed at the premises of Fearman and the work on a new emergency shower and minor work in a change house at Stelco, the work performed by the employers who were named in this complaint was essentially similar in nature. In our view, the work at the premises of Fearman, which involved an addition to an existing facility and involved both relocation of producing units and the expansion of existing capacity, was clearly new con­struction. Similarly, the work on the emergency shower and change house at Stelco was an addi­tion for the safety and comfort of Stelco's employees and represented new construction. This work is clearly within the industrial, commercial and institutional sector of the construction industry. The rest of the work referred to in the complaint was, for the most part, clearly work which sustained and maintained an operating facility and enabled that facility either to operate efficiently or to attain its designed or production capacity and is to be regarded as maintenance work. Maintenance work is to be distinguished from construction work which involves the addition to an existing facility or which will increase the designed or production capacity of an existing facility. However, in so far as there was work of new construction, which was purport­edly done under the maintenance agreement, it was a violation of section 134(a) of the Act.

17. Maintenance work performed by the employers who were named in this complaint is in reality part and parcel of the production and maintenance operations of the industrial clients for whom the work is performed. These industrial clients may, and frequently do, perform their own maintenance work with their own employees who are included in their own industrial bar­gaining units. In the context of the work affected by this complaint "maintenance" is difficult to distinguish from "repair". In our view, it is a question of the context of any given work and the degree of addition or subtraction of such work to an existing system or part of a system. Where the work assists in preserving the functioning of a system or part of a system, such work is maintenance work. Where the work is necessary to restore a system or part of a system which has ceased to function or function economically, such work is repair work. "Maintenance" and "re­pair" are not mutually exclusive concepts, and lack of adequate maintenance will surely produce a situation where repair becomes inevitable. In our view, the performance of adequate and timely maintenance forestalls or reduces the requirement for repair.

[emphasis added]

Relying on the emphasized passage in paragraph 28, counsel submits that the project at the Mission Mill did not increase either the designed or production capacity of the paper machine or the whole mill facility. The project's purpose was to improve product quality, increase the storage and transportation capacity for warm and white water and reduce the amount of downtime on the paper machine. Therefore, it was work on the existing papermaking systems carried out for the purpose of maintaining and sustaining the mill facility. That, counsel argues, puts the work squarely within the type of work described as maintenance in paragraph 28 of the Master Insulators' decision. At the same time, counsel argues since the project work was not for the purpose of increasing the designed or production capacity of the mill, it does not fit the definition of construction work in paragraph 28 or of repair work which is in paragraph 29.

16. Furthermore, counsel's argument continues, the Board recognized in Master Insulators', supra, that "maintenance" and "repair" are not mutually exclusive concepts and that work alleged to be the one or the other had to be examined within the context in which it was performed. The context herein, counsel submits, is one of a long history of the respondent using its own mainten­ance forces at the Mission Mill to maintain the mill's systems. Since the object of the work at issue here was to maintain the mill's capacity and was being done by its own forces in the confines of the mill's buildings, the Board should find it to be maintenance work. The fact that the Board has acknowledged that the context in which the work is being performed is important to deciding whether it is maintenance or repair calls for a case by case application of section 1(1)(f) of the Act. The respondent's historical practice of performing the kind of work at issue with its own forces for the purpose of maintaining the mill's productive capacity already was well established when the definition of construction industry was added to the Act. Therefore, in contextual terms, the Board has the latitude to find that such work is not captured by section 1(1)(f).

17. The final aspect of the second branch of counsel's argument is that the Board must con­sider the labour relations impact of its decision. A decision that the work is construction would allow construction unions into the mill and, because of the overlap between what is "maintenance" and what is "repair", would result in a flood of grievances over whether the work historically per­formed as maintenance was going to be performed under construction or industrial terms and conditions.

18. The third and last branch of respondent counsel's argument is that the respondent is not an employer as defined by section 117(c) of the Act which states that "'employer' means a person who operates a business in the construction industry,...". In order for an employer to satisfy that definition, two conditions must be met. First, the employer must operate a business. Second, the business must be operated in the construction industry. So the phrases "operates a business" and in the construction industry" must be given meaning and, in the case of the latter phrase, the meaning must relate to the section 1(1)(f) definition of "construction industry".

19. Counsel contends that the Board's jurisprudence dealing with the issue of whether an employer operates a business in the construction industry, beginning with Top's Marina Motor Hotel, [19641 OLRB Rep. Jan. 583, have failed to analyze and give meaning to those two phrases, particularly the phrase "operates a business". The fact that an employer is performing construction work does not satisfy section 117(c). The section requires more, counsel submits, and the more required is for the employer to be operating a business. That means that there must be a commer­cial purpose to the employer's performance of construction work in order for the employer to be brought within the meaning of section 117(c). Counsel views the Tops Marina, decision, supra, as coming narrowly within that definition because, at the time the application for certification was made, the only "business" being operated was the one of constructing a motel. Counsel reads the Board's decisions which have followed Tops Marina to have failed to give full meaning to the words "...operates a business in the construction industry..." because the Board has said there need not be a commercial purpose to the employer's performance of the construction work for that activity to constitute "operating a business". As a result of that interpretation by the Board of sec­tion 117(c), it has brought enterprises under the construction industry provisions of the Act which are not in the construction business. That stretches unreasonably the meaning of the words operates a business in the construction industry...", and that would be the result on the facts of the instant case were the Board to find that the respondent, by performing work on the Mission Mill's existing buildings, equipment and production systems which make up the paper machine is operating a business in the construction industry. The respondent is in the papermaking business, that is the only business which it operates and the work at issue herein, even if found to be con­struction work, is and has always been an integral part of its papermaking business. That business is machinery intensive and requires on-going maintenance and upgrading of its equipment and processes. Therefore, when the respondent is engaged in on-going maintenance and upgrading work, it is engaged in the papermaking process, not construction. Thus, it is not operating a busi­ness in the construction industry when it is performing that work.

20. Finally, counsel submits that the entire structure of the Labour Relations Act supports his interpretation of what "...operates a business in the construction industry..." means in section 117(c). The special provisions for the construction industry contained in sections 117 through 151 of the Act are an attempt to recognize and deal with differences in the different bargaining environments of the construction industry and non-construction: different job skills, different economics and different problems. The Board's interpretation of what is "construction" seems to ignore that structure of the Act by bringing under the construction industry provisions non-construction enterprises to which the general provisions of the Act apply. One result is to bring employers who are not in construction business under the highly structured and centralized provincial bargaining regime of the Act when they have no commercial interest in construction. That result alone is suffi­cient reason counsel contends, for the Board to re-evaluate its interpretation of section 117(c) enunciated in the Tops Marina line of cases because they pre-date the province-wide bargaining provisions of the Act. For the respondent, another result of the Board's interpretation of section 117(c), could be separate bargaining units of construction trades such as pipefitters, millwrights, electricians, carpenters, etc., all working on the same paper machine. That result would be con­trary to the Board's policy that it is desirable to avoid fragmenting the representation of employ­ees.

21. Counsel for the CPU and the TAM focused their arguments primarily on the Board's jurisprudence which interprets the definition of "construction industry" in section 1(1)(f) of the Act. Mr. Moore for the IBEW was concerned from the outset mainly with findings the Board would be called upon to make respecting whether the work affected by the application was work in the construction industry and whether the Board's findings would impinge upon how its collective agreements with the respondent and the Electrical Contractors Association of Ontario defined maintenance and construction work. He was satisfied that any findings the Board might make in this case would not have an adverse precedential impact on the IBEW's interests.

22. CPU counsel divided the Board's decisions, exclusive of the Master Insulators' decision, supra, dealing with sections 1(1)(f) and 117(c) into two groups: the cases where there is no history of any bargaining relationship between parties to the dispute; and, the cases where there has been a tri-partite, pre-existing arrangement amongst the parties respecting the work in question. The first group is made up of the Tops Marina line of cases where the threshold issue was whether the employer operated a business in the construction industry. The second group is composed of two subgroups. One subgroup is made up of decisions arising out of requests for a cease and desist order where there were allegations of a selective strike under the province-wide bargaining provi­sions of the Act. The other subgroup is made up of applications for certification under the con­struction industry provisions of the Act by building trades unions seeking to represent employees of municipal employers where those employers already were in a collective bargaining relationship with another trade union.

23. CPU counsel's analysis of the Tops Marina group of cases is that none of them were decided in the context of a pre-existing bargaining relationship. The applications were made in cir­cumstances where no other trade union claimed to have bargaining rights for any of the employees affected by the application. Thus, they readily may be distinguished from the instant case on the different context in which they were decided. Moreover, the Tops Marina decision, supra, the first Board decision to deal with the Act's definition of construction industry, was the only decision in the group to deal with the distinction between maintenance work and construction work. That is another reason why the Board should not rely on the other cases in the group. The Board's recog­nition in Tops Marina, supra, of that distinction is in its declaration that carpenters who might be engaged for maintenance work on the motel once it was in operation, would not be employees in the "construction" unit of carpenters which the Board had found to be appropriate for collective bargaining. That is relevant to the instant case, counsel submits, because if the Board finds that the work in issue herein is maintenance work, it would not be construction industry work pursuant to section 1(1)(f). That would be sufficient to dispose of the application.

24. With respect to those cases in the second group arising out of requests for cease and desist orders, counsel argues that they are distinguished from this case by two important elements. In almost all of these cases, according to counsel, the parties to the application were involved in bargaining relationships flowing from the construction industry provisions of the Act. They had historically treated the work which was the subject of the applications as work to be performed under construction industry conditions. In other words, there was a pre-existing consensus that the work was construction work. The applications were brought when the parties entered into an arrangement to perform it as maintenance work, departing from their historical treatment of the work. There is no similar history in this case of the respondent having treated the work in issue as construction work. Those differences in context provide sufficient reason for the Board not to rely on this group of cases.

25. Counsel acknowledges that the Board's decisions in the second group which involve building trades unions and municipal employers are marginally relevant to the instant case, but only insofar as the Board's interpretation of sections 1(1)(f) and 117(c) were made in the context of an application for certification. Counsel claims, however, that the facts of these cases do not dis­close any pre-existing bargaining relationship respecting the work in dispute. Furthermore, in some decisions involving a third party intervener, the facts show there to be a pre-existing relationship between the employer and the applicant to have the applicant's members perform the work in issue under construction industry conditions, all made possible by some appropriate arrangement between the employer and the trade union intervener. By way of example, counsel cited three Board decisions from this subgroup as supporting his analysis: The Corporation of the City of Toronto, [19781 OLRB Rep. Dec. 1145; The Municipality of Metropolitan Toronto, [1980] OLRB Rep. Jan. 62; and The Board of Education for the City of Windsor, [1983] OLRB Rep. May 831.

26. Counsel submits that, for all of those reasons, the instant case differs significantly from the cases in both groups and leaves the Board with the tests set out in paragraphs 28 and 29 of its Master Insulators' decision, supra. He also adopts respondent counsel's argument that the evidence before the Board does not support a conclusion that the work in issue is either new construction or repair within the meaning of section 1(1)(f) as the Board has interpreted it in Master Insulators. Counsel argues further that the Master Insulators' decision recognizes that there is no bright line test for distinguishing work which is repair, therefore construction, from maintenance and there­fore not construction. It is fundamental, therefore, for the Board to have particular regard to the fact that the work in issue is functionally similar to work historically performed by the respondent with mill forces under collective agreements with the three interveners; it was the respondent's intention from the beginning to perform the work in accordance with the existing collective agree­ments; and the work was performed within the confines of the existing mill facility without increas­ing the designed or production capacity of the facility, or the purpose of its existing operating sys­tems.

27. Thus, counsel contends, there was a pre-existing arrangement for the work to be performed under existing collective agreements, within a pre-existing bargaining relationship, for the purpose of maintaining and sustaining the mill processes. Even if the Board should ultimately find that the pattern of bargaining between the respondent and interveners did not capture the work in question, when deciding whether the work was work in the construction industry or something else, it is open to the Board to conclude that the parties themselves have recognized a demarcation line between maintenance work and construction industry work. Therefore just as the Board refused, in the cease and desist subgroup of cases referred to above, to define as maintenance work the same kind of work which the parties previously had treated as construction work within the context of an established construction industry bargaining pattern, by analogy with those cases, the Board reasonably could apply the Master Insulators' test for maintenance work and conclude that the work in issue is not construction work. In doing so, the Board simply would be recognizing that this particular respondent, within this particular industry, papermaking, and the three interveners have treated the work in issue as maintenance work within the context of their pre-existing bar­gaining relationships. Such a conclusion would leave their bargaining relationships undisturbed and would avoid the disruption which inevitably would occur, according to counsel, if the applicant and other building trades unions were injected into the bargaining relationship. This was by way of ref­erence to problems to which respondent counsel had alluded respecting the potential for griev­ances and work jurisdiction disputes, if work which the parties have historically treated as mainten­ance work must be done under construction industry collective agreements, by employees represented by building trades unions.

28. 1AM counsel's review of the evidence and Board decisions generally supports the argu­ments advanced by CPU counsel, but he asked the Board to have particular regard to the potential disruption of the collective bargaining relationships that would result from a finding that the work in issue is work in the construction industry as defined in section 1(1)(f) of the Act. At least half a dozen of the trades represented by the interveners at the Mission Mill have their counterparts in the building trades. Therefore, if the Board finds the work in issue to be work in the construction industry and, as a result, the applicant gains bargaining rights for pipefitters and welders doing construction work, it could lead to the whole bargaining system at the Mission Mill unravelling. Where, as here, the applicant has the onus of proving that the work in issue is work in the construction industry and the respondent operates a business in the construction industry, and where there is no clear demarcation between maintenance work and construction, it is particularly appro­priate for the Board to consider the impact of its ultimate determination on existing bargaining rel­ationships at the mill.

29. The Board will deal first with the argument that the work in issue does not fit within the literal meaning of the definition of construction industry in section 1(1)(f) of the Act. The relevant facts are that the work being performed by the employees affected by this application, at the times material to it being filed with the Board, involved the warm and white water systems of the paper-making process at the respondent's Mission Mill. The work involved, generally, such things as dis­connecting and removing pipe, installing pipe and connecting it to existing piping systems, existing and new pumps, storage vessels and other equipment. There is no doubt that the piping, pumps, storage vessels and other equipment were affixed to the buildings which are part of the mill. Thus they are a part of the building housing them and are to be considered part of the land. In this respect see the Board's decision in Arcan Eastern Ltd. [1969] OLRB Rep. Apr. 141 at paragraphs 5 and 6, and M. G. Burke Investments Limited, Board File No. 0640-76-R, an unreported decision which issued February 28, 1977.

30. The Board was dealing in the latter decision, with certain work performed by electricians and electricians' apprentices. It adopted the conclusion made in paragraph 6 of the Arcan, supra, decision that "... where an article is affixed to the land even slightly, such article is to be considered as part of the land." in finding at paragraph 22 that some of the electricians and appren­tices "...were engaged in performing work as employees of the respondent within the construction industry.". The Board made that finding after commenting as follows upon the work at paragraphs 20 and 21:

31. With regard to the first principal issue, the work of the electricians and electricians' appren­tices involves the installation of wiring which is evidently attached to the various buildings, such as the Woolworth's store and the Star Bottling plant. Their work also involved the installation of lighting in a private residence and running and strapping an electrical conduit. In addition, there were repairs to lights and electrical systems. It appears to the Board and we so find that the lighting systems, wiring and conduits are attached to buildings or structures. With respect to the repair of machinery and a belt on a conveyor it is not clear whether these items are attached to buildings or structures and accordingly the Board is not prepared to find that work on these items is work on fixtures rather than chattels.

32. For the guidance of the parties the Board sets forth two general considerations concerning whether certain objects become fixtures or remain as chattels. Where an article is affixed to the land even slightly, such article is to be considered as part of the land. The onus of establishing that a given article is intended to remain as a chattel rather than a fixture lies on the party which contends that it is a chattel. See Holland v. Hod gson (1872) L.R. 7 C.P. 328, 335; Bain v. Brand (1876) 1 App. cas. 762; Haggert v. Brampton 1897 CanLII 14 (SCC), 28 S.C.R. 174; and Stack v. T. Eaton Co. (1902) 4 O.L.R. 335, 1 O.W.R. 511. In addition, for a discussion of what constitutes a fixture, chattels which do not become fixtures and chattels which do not become fixtures [sic] - see Wil­liams', The Canadian Law of Landlord and Tenant (1973), pps 573-580. In this regard see also DiCastri, The Law of Vendor and Purchaser (1976), pps 21-22.

33. The Board finds, therefore, that the work being done in the instant case is being done to at least one of the objects, "buildings", of the work activity described in section 1(1)(f). The pipefitters were installing new piping; taking out existing piping, reworking and installing it; tying in new and reworked piping to existing piping systems and to new and existing pumps and other equipment, all in the nature of fixtures. To the extent that "constructing" includes "fitting together", the pipefitters were engaged in constructing piping systems which became part of the respon­dent's buildings. Therefore, the installation of the piping systems which were part of the warm and white water components of the project is work which would fall within the meaning of .constructing... buildings..." in section 1(1)(f) of the Act.

34. The respondent and interveners contend that the work in issue is not "constructing" because, on the facts, it is work which satisfies the definition of maintenance as set out in paragraph 28 of The Master Insulators' decision, supra, and does not satisfy its definition of construc­tion work. According to those parties, that is because it was work done to an existing facility to sustain and maintain it and enable it to operate efficiently and not work which involved an addition to the mill or which increased its designed or production capacity. The Board agrees that the project, and in particular, its warm and white water components, was not an addition to the mill in the sense that adding a second paper machine, or adding equipment that would increase the ton­nage per shift would be. But that does not remove the work in issue from the realm of what might be construction and place it within the realm of what is maintenance. If maintenance work is to be defined by the purpose of sustaining and maintaining an existing facility, the purpose of the project goes well beyond sustaining and maintaining the mill's papermaking operations. Its purpose is to improve the quality of newsprint produced by its paper machine. The purpose or object of the warm and white water components of the project is to improve and increase the transportation and storage capacity for warm and white water so as to realize the additional benefit of being able to draw off more warm and white water from the papermaking process. In turn, having more warm and white water available for use in the process will reduce the risk of lost production (i.e., the amount of downtime) because of breaks in the paper sheet. That is why those phases of the project were undertaken and any sustaining or maintaining of the papermaking process resulting from the project work is incidental to that purpose.

35. Even so, would it be reasonable for the Board to conclude that the work is maintenance work, when viewed in the context of the respondent's long history of having performed work which is functionally similar to the work in question, using its own mill forces represented by the inter­veners and working under the terms and conditions of their collective agreements and within the confines of the existing mill facility? The Board agrees with CPU counsel that the jurisprudence does not recognize a bright line test. The Board's analysis of the distinction between repair and maintenance in Master Insulators', supra, begins with the following observation at paragraph 21:

The distinction between "maintenance" and "repair' in the construction industry is not one which is easily made. While section 1(1)(f) of the Act defines "construction industry" and refers to "repairing" the words "maintenance" and "maintaining" do not appear in the Act....

Paragraph 22 of the decision acknowledges that the Board has regarded maintenance as not included in the section 1(1)(f) definition of construction industry. In spite of that acknowledgement, the Board's uncertainty about what is maintenance and therefore not construction is demonstrated by these further references in paragraph 22 to some of the Board's authorities on the issue:

. . . [ln The Board of Governors of The University of Western Ontario case, [1970] OLRB Rep. Oct. 776, the Board determined that the employer was not operating a business in the construc­tion industry because the employees who were the subject of an application for certification were engaged in maintenance rather than repair. In the Overhead Door Co. of Toronto Ltd. case, 11974] OLRB Rep. July 482, the Board examined the business of an employer who was engaged in the sale, distribution, installation, maintenance and warranty of various types of wood and metal doors and concluded that whether "maintenance" is to be considered as part of "construction industry" depends on the type of "maintenance" being performed and on the context of a given employer's operations.

[emphasis added]

The following extract from paragraph 29 of the Master Insulators' decision quoted above reveals similar difficulty on the part of the Board in that case in making the distinction between mainten­ance and repair:

29. Maintenance work performed by the employers who were named in this complaint is in real­ity part and parcel of the production and maintenance operations of the industrial clients for whom the work is performed. These industrial clients may, and frequently do, perform their own maintenance work with their own employees who are included in their own industrial bargaining units. In the context of the work affected by this complaint "maintenance" is difficult to distinguish from "repair".

[emphasis added]

Nor is it necessary to look any further than the last two quotations to find support for the claim of counsel for the respondent, CPU and IAM that the context in which the work is done is significant in deciding whether the work falls within the section 1(1)(f) definition. The emphasized passages show the Board to have considered context to be an important factor.

34. The facts about the work in the Master Insulators' case which the Board found to be maintenance are that it involved the removal and replacement of insulating material on pipes, vessels and equipment in various industrial plants operated by clients of the contractors who were the employers of the persons doing the work. It was "part and parcel" of the production and mainten­ance operations of the clients and the kind of work which the clients frequently performed with their own forces. That was the context in which the Board found the work to be that which would sustain and maintain the clients' facilities, therefore maintenance and not work which was needed "...to restore a system or part of a system which has ceased to function or function economical­ly , and therefore repair. In the instant case, while the work is being performed by the respon­dent's own mill forces on its own equipment and has been described by the respondent and interveners as essential to the maintenance and upgrading of the papermaking systems of the mill, therefore, part and parcel of the papermaking process, the evidence does not support a conclusion that the work is being done to sustain and maintain the mill's systems. Rather, the evidence is that it was being done to improve the quality of the newsprint, to increase the transportation and storage capacity of warm and white water and to reduce downtime. That is a substantial addition to these components of the mill's paper machine. In this respect, it is interesting to note the view of the Board expressed at paragraph 29 of the Master Insulators' decision, supra, when it was discuss­ing its dilemma of trying to distinguish maintenance and repair in the context of the work in evidence therein:

…it is a question of the context of any given work and the degree of addition or subtraction of such work to an existing system or part of an existing system.

While the Board was concerned there with trying to distinguish repair and maintenance, that view applies equally well to distinguishing maintenance from other types of work incorporated by the section 1(1)(f) definition of construction industry. In our view, the work performed on the warm and white water systems of the paper machine is an addition to those systems which goes significantly beyond preserving their functioning. That result is not altered merely because the parties themselves, in the past, may have treated functionally similar work as maintenance rather than construction.

35/ The arguments respecting the potential for more grievances, more disputes over work assignment and greater fragmentation of bargaining rights is irrelevant to a question of whether the work in question is work in the construction industry within the meaning of section 1(1)(f) of the Act. They may or may not be relevant to other matters in the ultimate disposition of the application. The work is either maintenance work of a kind which, having regard for the nature of the work and the context in which it was being performed, should not be considered construction even though the definition of construction industry does not explicitly exclude maintenance, or it is con­struction work and not maintenance work at all. Either result would not change because the impact of deciding the question one way or another might create a greater potential for the type of prob­lem argued.

36. The Board is not persuaded by the arguments of CPU counsel that, in deciding whether the work is maintenance or construction, the Board should distinguish the Tops Marina line of cases because they were not decided in a context of pre-existing bargaining rights, and that the Board could find the work in question to be maintenance within the principles of the Master Insulators' decision because the respondent and interveners historically have treated it as mainten­ance. Those arguments might well apply, however, in the context of the issue as to whether the bargaining rights presently held by the interveners arid the collective agreements containing those rights include the employees who perform the kind of work at issue.

37. Having regard to all of the foregoing, the Board finds that the work of removing old piping and installing new or reconditioned pipe, all of which is attached to the land, and connecting that piping to other existing piping, pumps, new and existing, and vessels for the purpose of improving and increasing the transportation and storage capacity of the warm and white water sys­tems of the mill's papermaking process is constructing and altering buildings within the meaning of section 1(1)(f) of the Act. Therefore, it is work in the construction industry.

38. It remains, therefore, to decide the issue which the parties have framed as "whether the respondent operates a business in the construction industry". The issue for the Board is more correctly framed as whether the respondent is an employer within the meaning of section 117(c) of the Act. Since the section defines "employer" as a person who operates a business in the construction industry, the definition of "construction industry" in section 1(1)(f) is brought into play. Therefore, the issue becomes one of whether the respondent operates a business "... that [is] 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.". In this respect, see the Board's decision in Cedarhurst Paving Co. Limited, [1964] OLRB Rep. Dec. 442 at p. 443. One of the questions to be decided by the Board in that case was whether the respondent fell within the definition of employer which is now part of section 117(c); that is "'employer' means a person who operates a business in the construction industry.". The Board, having noted previ­ously that it was dealing ". . .only with one aspect of the construction industry, namely, the con­struction, alteration and repair of roads ...", went cm to state that, in order to be an employer within that definition, the respondent ". . .must operate a business which is engaged in constructing, altering or repairing roads..."

(emphasis added).

39. The Board has just found the work being performed by the respondent's employees who are affected by this application to be work coming within the section 1(1)(f) definition of con­struction industry. It is undisputed that the respondent operates a business. In the Board's view, when that business includes the employment of employees to perform work coming within the defi­nition of construction industry, the business is engaged in the construction industry. The Board finds, therefore, that the respondent was a business engaged in constructing and altering buildings at the times material to this application. It follows, then, that the respondent was operating a busi­ness in the construction industry within the meaning of section 117(c) and, therefore, is an employer within the meaning of that section.

40. That is what the Board has said in its decision in Tops Marina, supra, and many of the cases which have followed it. The Board disagrees with respondent counsel's contention that, in those decisions, the Board has failed to give full meaning to the words in section 117(c) "...operates a business in the construction industry...". That failure, counsel argues, stems from the fact the Board has held that there need be no commercial purpose to an employer's perfor­mance of the construction work. To the extent that intending to make a profit is "commercial pur­pose", it would be correct to say that the Board has held it to be unnecessary for there to be a com­mercial purpose to the operation of a venture for it to be a business. (Kapuskasing Board of Education, [1972] OLRB Rep. June 587, at paragraph 4). The Board has also said that to be oper­ating a business that is engaged in construction does not require that the work be done for others rather than for the particular employer's own purposes, or that the "construction" business be the primary or predominant business of the employer (Tops Marina, supra,); or the "general nature" of the employer's business (Loblaw Groceterias Co., Limited, [1969] OLRB Rep. June 392). That decision has particular relevance for the instant case. Loblaw's employed construction trades to carry out alterations and renovations to its stores in Ontario. The Board acknowledged that the general nature of Loblaw's business was the operation of retail supermarkets, but found that there was an "alteration and renovation" aspect to its business. That caused the Board to conclude that Loblaws was engaged in the construction industry as it is defined by the Act. By analogy, it may be said in the instant case that the general nature of the respondent's business is papermaking, but there is a construction and alteration aspect to it as well. While that aspect of the respondent's business may be an integral part of its papermaking business, as counsel argues it to be, that does not change the fact that the respondent operates a business which, in part at least, is engaged in construction. The Board has also found that being a municipal corporation rather than a business corporation does not preclude an employer from being a "business" engaged in construction work (The Municipality of Metropolitan Toronto, [1980] OLRB Rep. Jan. 62). It is implicit in that hold­ing of the Board that it does not see an object of making a profit to be an essential criterion of a "business" in sections 1(1)(f) and 117(c). In that case, in the process of finding the municipality to be an employer, the Board rejected the argument that the word "business" used in sections 1(1)(f) and 117(c) did not include municipal corporations. The Board stated at paragraph 31 that "...[t]he special provisions [of the Act] with respect to the construction industry which were enacted in 1962 neither limit their application to any particular sector of the construction industry nor exclude spe­cific classes of employers such as municipal corporations.".

41. Clearly, the Board has not failed to give full meaning to the words "...operates a business in the construction industry..." in section 117(c). It may not have given the narrower meaning contended by respondent counsel, but it is clear from all of the cases starting with Tops Marina, the Board has given a very broad meaning to the word "business". The Board seems to be retro­spectively approving having done so in the following comments at paragraph 34 of its decision in Metropolitan Toronto, supra:

…As the Board stated in the Tops Marina Motor Hotel case, supra, it is not necessary that the business of an employer in the construction industry is the predominant or primary business. The soundness of that position has become clear over the years when the Board considers the number of large construction projects which have been accomplished by owner-builders and developers...

[emphasis added]

42. Further support is found for the broad meaning given by the Board to the word "business" in the following passage from the Board's decision in The Board of Trustees of the Roman Catholic Separate Schools for the City of Windsor, (1966] OLRB Rep. Mar. 920, a proceeding under what is now section 63 of the Act, quoted at paragraph 34 of the Metropolitan Toronto deci­sion, supra:

In the instant case, the term "business" should be given that interpretation most consistent with the other provisions of The Labour Relations Act and which will best effect the purposes of that section of the Act in which the term appears. It should be borne in mind that the Act does not distinguish between public and private business, and contemplates the existence of bargaining rights held by trade unions with respect to 'employers' generally and not simply those engaged in commercial enterprises. Nothing in the Act would suggest that any limitation on the continu­ance of these bargaining rights should be imposed by virtue of the non-commercial nature of any employer's 'business'. The term 'business' as it appears in The Labour Relations Act, therefore, ought not to be qualified by the addition of the adjective 'commercial', but should rather be read as referring generally to the undertaking of any employer whose operations are subject to this Act.

[emphasis added]

43. Respondent counsel argues that the Board should re-evaluate its interpretation of sections 1(1)(f) and 117(c) because that interpretation ignores the special provisions for the construc­tion industry in sections 117 through 151 of the Act, and their purpose, one result of which has been to bring under those provisions employers who have no commercial interest in construction. That has had the effect of bringing them under what counsel describes as "the highly structured and centralized bargaining regime of the Act". In the Board's view, had the Legislature intended a narrower interpretation of those sections of the statute, there has been ample opportunity since the Tops Marina decision in 1964 for the Legislature to have expressed that intention. There have been three major amendments to the construction industry provisions of the Act since then, all directed to a broader based, more structured regime of collective bargaining. There was the introduction of accreditation of employers' organizations in the 1970 amendments to the Act; the introduction of single trade, province-wide bargaining in the industrial, commercial and institutional sector of the construction industry in the 1977 amendments; and the province-wide extension of employee bar­gaining rights in that sector in the 1980 amendments to the Act. When all of those amendments were enacted by the Legislature, it was well aware of the kinds of employers which were being found by the Board to be operating businesses engaged in the construction industry. Yet the Legis­lature did not seek to amend the definitions of "employer" or "construction industry" so as to exclude any particular class of employer. This, in spite of the fact the province-wide bargaining regime was designed to apply only to employers of employees for whom particular kinds of trade unions had bargaining rights, to those unions and to those employees within those limits, the same classes of employers which the Board in the past has found to be operating a business in the con­struction industry, can be part of the provincial bargaining scheme of the Act. Had the Legislature not wanted to include those kinds of employers within that scheme, knowing how the Board had interpreted sections 1(1)(f) and 117(c), it would have amended the sections or made some other provisions so as to exclude them from access to the scheme. It did not do so. It is not unreason­able, therefore, to infer that the Board's interpretations have met the statutory purpose intended by the Legislature for the construction industry provisions of the Act.

44. Having regard to all of the foregoing, the Board finds that, as at the date of making of this application, the respondent was operating a business that was engaged in constructing and altering buildings and, therefore, is an employer within the meaning of section 117(c) of the Labour Relations Act. It follows therefrom that the pipefitters and welders employed by the res­pondent in its construction work on the date of this application are employees within the meaning of section 117(b) of the Act. Since the applicant is a trade union which pertains to the construction industry within the meaning of section 117(f), the application satisfies the conditions precedent for being an application for certification within the meaning of section 119 of the Act. Thus the appli­cant is entitled to a craft bargaining unit pursuant to section 6(2) of the Act, subject to the require­ments of section 144(1) of the Act.

45. Before this application can be finally determined, it is necessary to decide the claim of the respondent, the CPU and the IAM that the work in issue is work which has historically been performed by the mill forces under the terms of the CPU and the IAM collective agreements with the respondent. It is also necessary to decide whether, on the date of making of the application, the respondent employed pipefitters and welders (in the pipefitting trade) on ICI construction else­where in the Province of Ontario. Therefore, the Registrar is directed to list the application for hearing for the purpose of receiving the evidence and representations of the parties on the two foregoing and any other outstanding matters.

DECISION OF BOARD MEMBER J. A. RONSON;

1. In their decision my colleagues have concisely and accurately set out the facts and argu­ment of this case. I disagree with them as to whether the respondent employer is engaged in busi­ness in the construction industry. Since my findings on that aspect are determinative, I have not dealt with the other arguments raised by the respondent and the interveners, and should not be taken to either agree or disagree with my colleagues with respect to any other issue.

2. This case is really the first in which the Board has had to decide whether an industrial or manufacturing business is also a "business in the construction industry". If my colleagues are cor­rect in their reasoning, then at one time or another, practically every "business" in Ontario can form part of the "construction industry". For example, suppose I wish to partition my basement to create an office from which I will conduct business as, say, a labour relations consultant. Suppose I employ a carpenter and a labourer to do the partitioning. Accordingly, I would be an "employer" carrying on "business in the construction industry".

3. To me, the word "business" implicitly means an activity whose object is to make a gain or profit. Over the years the Board has expanded the meaning of the word "business" as found in section 1(1)(f) and section 117(c) of the Act so as to include "enterprises" whose activities need not have a profit-making objective. (For example, The Board of Trustees of the Roman Catholic Separate Schools for the City of Windsor, [1966] OLRB Rep. Mar. 920, and The Municipality of Metropolitan Toronto, [1980] OLRB Rep. Jan. 62). In those cases the Board was dealing with pub­lic bodies whose major reason for existence was to oversee the construction and maintenance of public works. That the Legislature would not be concerned with this expanded definition in rela­tion to public bodies is not surprising.

4. It seems to me that the Board's definition focuses unduly on whether the work is con­struction work and completely ignores the use of the word "business". Construction work, stand­ing alone, is not the test. Those drafting the Act were very careful and precise in their choice of words. The Act does not say "'employer' means a person who does construction work"; - it says "'employer' means a person who operates a business in the construction industry." The Act does not say "'construction industry' means the persons who are engaged in constructing ..."; it says "'construction industry' means the businesses that are engaged in constructing...".

5. No one can deny that the respondent is a "person" and a "business" in the papermak­ing industry. To my mind there was no intention on the part of the Legislature to say that a person in the papermaking industry was also engaged in a "habitual occupation, profession, trade or serious work" in the construction industry, (the definition of business in the Concise Oxford Dictionary with my emphasis). The respondent does not derive profit or gain from construction work per se. Construction work is not its serious work. It spends capital or capitalized profit to con­struct things to make paper for profit.

6. I would hold that an employer in the construction industry is a "person" whose business, habitual occupation or stated trade is to construct, alter, decorate, repair or demolish.... If construction is but necessarily incidental to the business of a person, then that person cannot be an employer in the construction industry within the meaning of the Act.

7. The respondent's business is to make paper. It is part of the papermaking industry. It is not an employer to whom the construction industry provisions of the Act apply.