[1989] OLRB Rep. June 630
1409-88-R International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Applicant v. Levert & Associates Contracting Inc., Respondent
BEFORE: N. B. Satterfield, Vice-Chair, and Board Members W. Gibson and J. Redshaw.
APPEARANCES: Michael A. Church, Edward Power and Andy Holder for the applicant; K. R. Valin and R. Levert for the respondent.
DECISION OF N. B. SATTERFIELD, VICE-CHAIR, AND BOARD MEMBER W. GIBSON; June 9, 1989
In this application for certification made under the construction industry provisions of the Labour Relations Act, the applicant is seeking to represent all boilermakers and boilermakers' apprentices, save and except non-working foremen and persons above the rank of non-working foreman in the employ of the respondent in the industrial, commercial and institutional ("ICI") sector of the construction industry in the Province of Ontario and in all other sectors in the District of Cochrane. The respondent claims that it is not an employer in the construction industry and, accordingly, the unit sought by the applicant is not a unit of employees appropriate for collective bargaining. Consistent with that position, the respondent proposes a bargaining unit described in the following terms as a unit which would be appropriate for collective bargaining: all employees of the respondent at Smooth Rock Falls, Ontario, save and except supervisors, persons above the rank of supervisor, office, clerical and technical employees.
The issues raised by the application and reply to it caused the Board, differently constituted,to authorize one of its labour relations officers to inquire and report to the Board respecting:
(a) whether the Respondent was an Employer in the construction industry during the material times;
(b) the nature of work performed by the Respondent's employees during the material times; and
(c) the list and composition of the bargaining unit herein.
The officer has submitted his report to the Board. Copies were served on the parties and, subsequently, the Board held a hearing for purposes of receiving the parties' submissions on the conclusion which the Board should reach about the issues addressed by the inquiry, based on the evidence contained in the report.
The respondent had identified three employees whom it believed would be in the bargaining unit proposed by the applicant: Rick Atchinson, Richard Charbonneau and Alain Dubord. The parties later agreed that Dubord "... does not fall within a unit of boilermakers and apprentices for the purposes of this application.". Atchinson and Charbonneau testified at the inquiry, as did Ed Power, Claude Brunet and Joseph Girardin. Power was called by the applicant to testify and Brunet and Girardin were called by the respondent. Their testimony is set out in the officer's report. The findings of fact set out herein have been made based on the Board's assessment of their evidence and having regard to the parties' submissions thereon.
When this application was made, the respondent was performing a contract for certain work at a pulp and paper mill in Smooth Rock Falls operated by Mallette Kraft Pulp and Paper. The mill was shut down for its annual overhaul. The respondent had contracted to affix four steel plates to a dissolving tank in the recovery and steam plant and to replace a pipe which conducts vapour to an evaporator in the recovery and steam plant. Tests carried out by the mill's engineering staff had shown that some areas of the tank and pipe had become thin. The dissolving tank held a liquid referred to as "smelt", a by-product of the steam boiler used to produce green liquor for the pulp and paper making process. The pipe was described as approximately 22 to 24 inches in diameter and eight feet long. It made a horizontal connection between two vertical vent pipes. Both the tank and the pipe had been patched previously by employees of the mill. While they were operating right up to the annual shutdown, Mallette wanted to patch the tank and replace the pipe so as to reduce the risk of their failure while the mill was operating. The mill's engineering staff had decided it would be more economical to replace the eight feet of vapour pipe than to patch or replace weak sections. The Board accepts Girardin's evidence that neither the tank nor the pipe was leaking prior to the shutdown. He is assistant superintendent of the recovery and steam plant and was around the equipment on a daily basis as part of his job.
The work on the tank involved welding metal plates to its exterior surface to "re-line" or reinforce areas of the tank which the tests had shown to be thin. This involved approximately one-third to one-half of the tank's surface. The four plates, four by eight feet and a half inch thick, were supplied by the mill to conform to the shape of the tank, but the respondent's employees found it necessary to cut them in half in order to get a satisfactory fit. They also found it necessary to cut out one of the patches on the tank in order to get one of the plates to fit. In order to have working access to the tank's surface, the employees had to remove a permanent catwalk and erect a working scaffold. After the work was finished, the scaffolding was taken down and the catwalk put back in place. There is no evidence that any work was performed on the catwalk, except to remove it and put it back. The surface of the tank where the edges of the plates were to be welded had to be ground to remove scale, or any contaminants. The plates were rigged and hoisted into position, fitted to the tank surface and welded in place.
Replacement of the vapour pipe involved cutting out and removing the old pipe section, cutting a pipe flange from it, welding the flange to the replacement pipe, rigging and hoisting the new pipe into place and connecting each end to the vertical pipes. It was bolted at the flange end and welded at the other end.
The respondent's employees performed the work on the tank and the vapour pipe using tools, equipment and work methods commonly, although not exclusively, used by the boilermaker trade whether working on site or in a fabricating shop.
There was also evidence that the respondent installed a hood or cover over an electric motor in the recovery and steam plant. There had not been one over that motor before. The parties agree, however, that this work was performed after the application date and, therefore, is not relevant to the issues before the Board.
A witness for the applicant testified that, in addition to the respondent, there were two boilermaker contractors performing work in the mill during the shutdown. Both were said to have employed members of the applicant under terms of the boilermakers provincial agreement. One was performing work on a boiler in the recovery and steam plant where the respondent's employees were working. The other was performing work on the bleach washers and a precipitator. The evidence does not reveal the nature of the work being performed by either of them.
The parties characterized the main issue before the Board as being whether the work described in paragraphs 5 and 6 is construction work. More precisely, the main issue is whether the respondent is an employer in the construction industry within the meaning of the Act. If it is not, this application could not properly be brought under the construction industry provisions of the Act. Clause (c) of section 117 of the Act defines "employer" as follows:
(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.
The term "construction industry" employed in that definition is itself defined in clause (f) of subsection 1(1) of the 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.
The heart of the main issue is whether the work described in the facts set out above is work in the construction industry as it is defined in clause (f) of subsection 1(1). If it is, it is common ground that the respondent is an employer in the construction industry for purposes of the Act. The respondent submits that the work in issue is maintenance work and not construction. The applicant takes the position that it is "repair", as that word is used in the definition of construction industry, and therefore is construction work. Both parties relied in part for designating the work as maintenance or repair on the principles stated in The Master Insulators' Association of Ontario Inc., [1980] OLRB Rep. Oct. 1477, paragraphs 28 and 29:
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 134a(1) of the Act.
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". 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]
Their respective applications of those principles to the facts in this case arrive at opposite conclusions because of their different interpretations of the evidence. That is not surprising since it is almost trite to say that cases of this sort must be decided on their unique fact situations. This is evident from other decisions of the Board on which each party relied and which they submit, correctly, followed the principles enunciated in Master Insulators'. In this respect, the applicant referred the Board to Inscan Contractors (Ontario) Inc., [1986] OLRB Rep. May 640 and the respondent referred us to Gallant Painting, [1987] OLRB Rep. March 367.
The Board has recognized a distinction between maintenance work and construction work since its decision in Tops Marina Motor Hotel, 64 CLLC ¶16,004, the first reported decision interpreting the definition of construction industry in what is now clause (f) of subsection 1(1) of the Act, even though the words maintenance or maintaining are not used in the definition or elsewhere in the Act. The problem always is to make the distinction in a particular fact situation because there is no clear demarcation between maintenance work and construction and, in the Board's experience, what the parties see generally as being one or the other appears to be very much in the eye of the beholder. See, for example, Kidd Creek Mines Ltd., [1984] OLRB Rep. Mar. 481, at paragraphs 46 and 47. The Board, of course, must determine whether or not work characterized by a party as maintenance work is construction work for purposes of the Act, not for some more general purpose. The Board's decision in Master Insulators', supra, is the first reported decision which lends some definition to the task of distinguishing maintenance work which is not construction work from repair work which is.
The facts here are clear. The dissolving tank and the vapour pipe were functioning fully immediately prior to the shutdown. But, because they both had developed thin areas, it was decided, in the case of the tank, to reinforce those areas and, in the case of the pipe, to replace it because that was more economical than patching or cutting out and replacing the thin areas. The work was not an addition to the recovery and steam plant and was not for the purpose of increasing its production capacity. It was work done for the purpose of avoiding having the tank or pipe fail while the mill was operating. Clearly, it was work which would assist in preserving the functioning of the recovery and steam plant and it was not work done for the purpose of restoring a system which had ceased to function or function economically.
These facts distinguish this case from Inscan, supra, on which the applicant relies, where fire damage at a refinery stopped production for three weeks of a feedstock for lubricating oils. That process represented approximately ten per cent of the total product capacity of the refinery. The facts herein are much more analogous to those in Gallant Painting, supra, on which the respondent relies. In that case the Board found that the painting of "...pipes, tanks and other containers...", amongst other things, in two petrochemical plants, was work which ". . .will preserve and protect the structures from corrosion and thereby extend their useful lives.". The patching of the tank and replacement of the vapour pipe served to extend the useful life of the recovery systems in the recovery and steam plant of the mill.
The fact that there were other contractors in the mill who may have been employing boilermakers pursuant to the boilermakers provincial agreement, an agreement which has application in the industrial, commercial and institutional sector of the construction industry, is of no assistance to the Board in this case. The question the Board must answer is whether the respondent was performing work in the construction industry and was an employer within the meaning of clause (c) of section 117 of the Act. That requires an analysis of the work which the respondent's employees were performing. There is no evidence that the work which they were doing had any connection whatsoever with the work being performed by the other contractors.
The Board finds the reasoning in the Master Insulators' decision respecting the distinction between maintenance and construction work applicable to the facts of this case and adopts that reasoning. The Board finds, therefore, that the work on which the respondent's employees were engaged on the date of making of this application was not work in the construction industry. Therefore, the respondent is not an employer as defined in clause (c) of section 117 of the Act and this application for certification is not properly made under the construction industry provisions of the Act.
In this result, the applicant has requested the Board to process the application pursuant to sections 5, 6 and 7 of the Act. It has been the Board's practice to do so in cases where it has found the application cannot be processed under the construction industry provisions. The respondent did not oppose the request. Accordingly, having regard to the Board's practice, it will treat this as an application made pursuant to section 5 of the Act.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The respondent argued that the applicant was not an appropriate bargaining agent for a unit of the respondent's employees for two reasons. First, because the applicant was unwilling to represent labourers (apparently Dubord). Second, because the applicant did not have an established practice of representing maintenance employees in the pulp and paper industry. Both grounds are wholly irrelevant. The respondent is not an employer in the pulp and paper industry and, with respect to the first ground, the applicant merely took the position that Dubord was not a boilermaker or apprentice boilermaker and, therefore, could not be in a craft unit of boilermakers. The respondent agreed. The applicant is fully prepared to represent employees who would be in an "all employee" unit, and, as a trade union within the meaning of the Act, is entitled to do so if it can demonstrate that it has the requisite number of employees in a unit found by the Board to be appropriate for collective bargaining are its members.
The Board finds that all employees of the respondent at Smooth Rock Falls, Ontario, save and except office and sales staff, foremen and persons above the rank of foreman, constitute a unit of the respondent's employees appropriate for collective bargaining.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on October 3, 1988, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
A certificate will issue to the applicant.
DECISION OF BOARD MEMBER J. REDSHAW; June 9,1989
I cannot agree with the majority that the work performed by the employees of Levert & Associates Contracting Inc. was "maintenance" work. In my opinion the work is repair work.
The maintenance performed on the system by in plant forces was not adequate enough to prevent the pipe walls and tank walls from thinning and it was not economical to continue to patch the system. It became necessary to replace the pipe with a new pipe. The foreman who did the work testified that one half of the skin on the tank was replaced with new plates welded over the existing walls. The reflector or hood was completely new construction. There had previously been no protection for the motors. The only evidence regarding the stairs and catwalks was that they had to be dismantled to replace the skin on the tank and were replaced afterwards. No one said that any work had to be performed on the stairs or catwalks themselves.
Mr. Claude Brunet, the Maintenance Planner, of Mallette Kraft Pulp and Paper Mill testified that "It's work that we can't do when we're running.".
Charbonneau testified that the tank walls were so thin that the skin was bulging out in spots and that there were holes the size of a fifty cent piece in places.
The Master Insulators' case in paragraph 29 states: "Where the work is necessary to restore a system or part of a system which has ceased to 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.".
It had become a situation where it was no longer economically feasible to patch the system. It surely was a situation where repair had become inevitable.
In my view the work that was performed by the employees in the proposed bargaining unit was repair work and not maintenance