[1989] OLRB Rep. February 223
0878-87-R Labourers International Union of North America, Local 607, Applicant v. Vibration Assessment Limited, Respondent
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members D. A. MacDonald and J. Redshaw.
DECISION OF THE BOARD; February 6, 1989
- By decision dated May 18, 1988, the Board certified the applicant as the exclusive bargaining agent of all construction labourers in the employ of the respondent in all sectors of the construction industry in the District of Kenora including the Patricia portion, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman. In disposing of the matter, the Board found, at paragraph 7 of its decision, that:
(a) This application is within the Board's jurisdiction;
(b) The work in which the respondent and its employees were engaged on the date of application was in the construction industry;
(c) The three employees; Brian Munro, Martha Kutowy, and Roger Ball, were construction labourers, within the meaning of that term as used by the Board, on the date of application.
Subsequently, the respondent requested reasons for those findings. These now follow.
The respondent, Vibration Assessment Limited ("VAL") is an engineering consulting company which provides vibration monitoring and assessment services to anyone who requests it, including the Government of the Province of Ontario, municipalities, utilities, architects, insurance companies, construction contractors, quarry operators, railroads, and pipeline companies. Tony Yan is the principal and president of the respondent. He is a professional consulting engineer who has been designated as a specialist in explosives and blasting.
Bell Canada ("Bell") owns 48 per cent of TransCanada Pipelines Limited ("TCPL") and is, as such, the majority and controlling shareholder of TCPL. International Pipeline Engineering Limited ("IPEL") is a wholly-owned subsidiary of TCPL. Bell retained IPEL to provide certain engineering inspection services with respect to the construction and installation of a Bell fibreoptic telecommunications cable along the TCPL right-of-way between the Ontario-Manitoba border and (near) Barrie. TCPL owns and operates a natural gas pipeline along that right-of-way. This pipeline runs from the Alberta-Saskatchewan border to Montreal, Quebec. As such, it is subject to the jurisdiction of the Natural Energy Board which must approve any construction along the right-of-way. Bell contracted with SPIE Construction ("SPIE") to do the actual construction work, including the requisite blasting. All of that construction work was to take place within the Province of Ontario. In order to ensure that the blasting which would be a necessary part of SPIE's construction work was done in accordance with the applicable laws, codes, and TCPL's specifications, IPEL retained the respondent VAL as an independent blast monitoring consultant, rather than relying on SPIE to provide that service. VAL was responsible for reviewing the blast design, ensuring that SPIE complied with that design, monitoring the vibrations caused by the blasts, and assessing the blast results. While VAL's job was to ensure that SPIE's blasting did not damage dwellings and other structures as well, its primary responsibility was to protect the integrity of the TCPL pipeline. In addition, IPEL was appointed to be TCPL's agent with respect to the performance of some aspects of the TCPL-Bell agreement, including the blasting which would take place. Accordingly, SPIE, IPEL and VAL worked together.
The parties agreed that Brian Munro, Martha Kutowy, and Roger Ball were all at work for VAL in the geographic area to which this application relates on the date the application was made.
However, the respondent asserted that because VAL's work was in relation to the TCPL pipeline, which is a federal undertaking, the subject matter of this application was also within federal jurisdiction. It further asserted that it and its employees were not engaged in the construction industry, and that the three employees were not construction labourers at any material time.
The three employees in question variously describe themselves as "vibration control technicians", "blasting inspection technicians", and "vibration technicians". In this case, their primary job was to monttor the vibrations caused by SPIE's blasting operations in order to ensure that these did not exceed the pre-established acceptable level (50 millimetres per second). The parties agreed that Brian Munro's evidence with respect to the nature of the work he performed should be accepted by the Board as representative of that of Martha Kutowy and Roger Ball as well. Mr. Munro's testimony in that respect reveals that the work he performed on the date of application is also representative of his normal working day.
After an early morning meeting with IPEL representatives to establish the work to be done that day, each VAL employee would go to the job site s/he had been assigned to. There, each joined the SPIE blasting crew, which was composed of construction labourers, whose blasts each was monitoring. While the SPIE employees began preparing a blast, the VAL employee set up the monitoring device s/he was using in an appropriate location on on near the TCPL pipeline. This set-up required an average of thirty minutes, but could take from as little as fifteen minutes to as long as sixty minutes, depending on the terrain. Because a "normal" blast took approximately two hours to prepare, the VAL employee then returned to the blast site where s/he observed the remaining preparations. Although it did not form a normal part of his/her duties and responsibilities, the VAL employee did on occasion, and only when s/he felt so inclined, assist in the manual labour associated with preparing a blast. S/he did this only to alleviate the boredom associated with having nothing else to do while waiting for the blast preparations to be completed.
After the blasts were detonated (by a SPIE employee), the VAL employee would assist in checking the blast hole to ensure that all the explosives had been detonated. S/he then returned to the monitoring device to take and read a printout of the vibrations caused by the blast. "Reading" the printout consisted of perusing it and answering "yes" or "no" or assigning a numerical value, as the case might be, to questions which the machine was programmed to ask. The machine did all or substantially all the necessary computations. This generally took approximately one and a half minutes.
The VAL employee then disassembled the monitoring equipment, which took approximately twenty minutes, and then moved it to another location in order to monitor the next blast.
The aforesaid process was repeated for each blast. In the absence of equipment problems or bad terrain, ten to fifteen blasts could be detonated in a day. On the date of application, there were seven blasts.
There are no formal educational or other qualifications which an individual must possess in order to be employed to perform the kind of monitoring functions performed by the VAL employees in this case. On the evidence before the Board, it appears that an individual without any previous background in explosives could be trained to perform a vibration monitoring function relatively quickly. However, some relevant education (in an engineering or technical program) or experience with explosives is desirable and VAL did seek employees who had what it considered to be some suitable combination of education and experience. Once hired, the employees were provided with a four-day training program by Mr. Yan. It is also clear, however, that such employees need not have any expertise beyond that which is possessed by a construction labourer who is employed as a blaster.
It appears that these particular VAL employees generally worked approximately seventy-two hours per week and were paid a salary of $14,500.00 per year based on a forty-hour week. This breaks down to (approximately) $278.85 per week or (approximately) $6.97 an hour. They also received $50.00 per day as a living allowance and $20.00 per day as compensation for the overtime they worked.
The Parliament of Canada has no general jurisdiction over labour relations as such. On the contrary, labour relations is prima facie, a matter which is within provincial jurisdiction. The Parliament of Canada has exclusive jurisdiction over labour relations only if it is demonstrated to be an integral part of its primary competence over some other federal work, business or undertaking (see, for example, General Enterprises Ltd., [1977] 1 CLRB Rep. 432 (Canada), Montcalm Construction Inc., 1978 CanLII 18 (SCC), 93 DLR (3d) 641, 79 CLLC 14,190, [1979] 1 8CR (8CC); W. Rourke Ltd., [1983] OLRB Oct. 1711). The courts and labour relations tribunals have applied a functional test to determine whether or not the labour relations in issue are within federal jurisdiction; that is: does the work in which the employees are engaged form an integral part of, or is it necessarily incidental to, a federal work, undertaking or business, as a going concern? (See, for example, Bachmeier Diamond & Percussion Drilling Co. Ltd. v. Beaver Lodge District Mine, Mill & Smelter Workers, Local Union 913, 1962 CanLII 309 (SK CA), [1962] 35 DLR (2d) 241 (Saskatchewan Court of Appeal); Midvalley Construction Ltd., [1974] CLLC 16,100, ¶ aff'd. 74 CLLC 14,242, ¶ 1974 CanLII 262 (AB SCTD), [1974] 6 WWR 575 (Alberta Supreme Court); Lettercarriers Union of Canada v. Canadian Union of Postal Workers et al, [1975] 1 8CR 178 (Supreme Court of Canada); Montcalm Construction Inc., supra; Northern Telecom Ltd. v. Communications Workers of Canada et al, 1979 CanLII 3 (SCC), [1979] 98 DLR (3d) 1 (Supreme Court of Canada); Re Henuset Rentals Ltd. & United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 488, [1978] CLLC ¶16,137 (Saskatchewan Labour Relations Board), affd. 96 DLR 3 651, 79 CLLC 14,194 ¶ 1979 CanLII 2170 (SK QB), [1979], 2 WWR 727 (Saskatchewan Queen Bench), aff'd. 119 DLR 3 639, 1980 CanLII 2289 (SK CA), [1981] 1 WWR 748 (Saskatchewan Court of Appeal); Manitou Mechanical Limited, [1978] OLRB Rep. July 657; Brotherhood of Railway, Airline & Steamship Clerks, Freight handlers, Express & Station Employees v. Canadian Pacific Limited & Marathon Realty Company Limited, [1978] 1 CLRB Rep. 493 (Canada); Tymac Launch Service Ltd. v. Canadian Brotherhood of Railway, Transport & General Workers Local 400, [1981] CLLC 16,072; ¶ Re Burn-shire Mobile Maintenance Ltd. & Canada Labour Relations Board, 1985 CanLII 5507 (FCA), [1985] 22 DLR (4th) 748 (Federal Court of Appeal); National Protective Guard Service Company Limited, [1987] OLRB Rep. Feb. 245).
In this case, VAL's work was an integral part of, or necessarily incidental to, the construction of the Bell cable, which is itself in provincial jurisdiction. It formed no part of the ongoing operation of the TCPL pipeline and would not have been required at all but for the construction of the Bell cable. Accordingly, the Board concluded it had jurisdiction to deal with this application.
The work the VAL employees performed in this case was in connection with the Bell cable rather than in connection with the TCPL pipeline. Indeed, it was an integral or necessarily incidental part of that construction since the construction could not proceed without it. Accordingly, the Board concluded it was construction work.
Finally, the Board had to determine whether the three VAL employees were construction labourers. It is no easy matter to define that term. The Labour Relations Act provides no assistance in that respect. In addition, while they have never been entirely clear, the lines of demarcation between construction labourers and other trades or crafts have recently become even more blurred. Certainly, it is no longer, if it ever was, fair to say that construction labourers are necessarily unskilled or unsophisticated workers. While it may be difficult to provide any exhaustive description or definition of what a construction labourer is, it is far less difficult to "know one when you see one". In this case, the Board was satisfied that the work performed by the VAL employees is work that is commonly associated with blasting (which blasting is construction labourers' work), that it is work which can be and is done by construction labourers, and that it is not work which is identifiable or associated with any other construction trade or craft. In addition, the qualifications and abilities required, and the rate of pay associated with the work tended to suggest they were construction labourers. Accordingly, the Board found they were.