Ontario Labour Relations Board

[1989] OLRB Rep. June 619

3202-88-R Labourers International Union of North America, Local 183, Applicant v. Keith Holdsworth Consulting Ltd., Respondent

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.

APPEARANCES: S. B. D. Wahl, A. Dionisio and L. D'Agostini for the applicant; Peter Chauvin and Keith Holdsworth for the respondent.

DECISION OF THE BOARD; June 13, 1989

1. This is an application for certification filed pursuant to the construction industry provisions of the Labour Relations Act ("the Act"). In its application, the applicant, (hereinafter referred to as Labourers Local 183) seeks to acquire bargaining rights for, what may be described in short form, as its "standard" construction industry bargaining unit in applications filed pursuant to section 144(1) of the Act. In this application, that bargaining unit consists of all construction labourers in the employ of the respondent:

(a) in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario; and

(b) in all other sectors of the construction industry in the Regional Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham (OLRB Geographic Area 8).

save and except non-working foremen and persons above the rank of non-working foreman.

In addition, the Labourers Local 183 seek a clarity note that the the bargaining unit includes all employees engaged in cement finishing, waterproofing and restoration work.

2. In its reply to the application the respondent (hereafter referred to as Keith Holdsworth) states that it

"was not engaged in construction work on the application date. The respondent;s [sic] activities were routine maintenance work. This Application for Certification, filed under the construction provisions of the Act, has no application to the Respondent. The names of the Respondent's employees have been listed on Schedule "A" to assist the Board, without prejudice to the Respondent's position."

The "occupational classification" of the five employees listed on the respondent's Schedule "A" is "Maintenance Worker".

3. When the hearing convened, counsel for Keith Holdsworth stated that Keith Holdsworth did in fact engage in a "small amount of construction work". Counsel emphasized that the vast majority of the respondent's business was not construction work and did not fall within the definition of "construction industry" found in section 1(1)(f) of the Act. Counsel indicated however, that the respondent's Schedule A as filed was in error and acknowledged that in fact four of the five employees listed were employed on new construction sites (the SkyDome and the Signature Inn at Norfinch at Finch Avenues). Counsel asserted that the fifth employee, Alfredo Arellano, was not employed on a new construction site but was engaged in certain maintenance work at an underground garage. He submitted that the work in which Mr. Arellano was engaged at the time was the type of work which was the respondent's usual and principal business and was not work within the construction industry. Counsel asserted that if, in its application, Labourers Local 183 sought to acquire bargaining rights for all of the employees, including those employees not engaged in construction, that it would be "improper" to issue a certificate to the applicant.

4. Counsel further submitted that as the work performed by Mr. Arellano was "fundamentally no different" than any other work of the respondent, the Board ought to determine whether that work was construction work or not. Citing Ethier Sand and Gravel Limited, [1979] OLRB Rep. Oct. 962 and Dominion Paving Limited, [1981] OLRB Rep. Oct. 1370, counsel argued that an all employee unit was the appropriate unit where an employer engages in some "construction" work, and the employees performing that work are integrated or interchangeable with the employees performing work that is "essentially outside" the construction industry. He submitted that, if both construction and non-construction work is done by the same work force, an all-employee, "industrial" bargaining unit is the appropriate unit.

5. Counsel for the Labourers Local 183 submitted that all of the work performed by all of the employees fell within the "construction industry" as defined in the Act. Counsel also submitted that if part of the employer's business fell within the construction industry, Labourers Local 183 was entitled to be certified for that part of the business. He further submitted that Ethier Sand and Gravel Limited and Dominion Paving Limited were no longer good law and referred to the more recent decision of the Board in Ridsdale Steel Fabricators Inc., [1987] OLRB Rep. April 601.

6. Both counsel indicated they were prepared to call evidence in respect of the issues as to whether or not the nature of the work performed by the respondent fell within the construction industry.

7. We wish to first address the respondent's submissions that, where an employer carries on both construction and non-construction activities with a single work force, the appropriate bargaining unit is an "all-employee" non-construction type unit and a certificate should be granted under the general provisions of the Act (section 5, 6, and 7) rather than the construction industry provisions. In our view, where a person operates a business in the construction industry, (even if that business is only a small part of the person's business activities) and the person employs "employees" (within the meaning of section 117(b) of the Act) to perform the work of that construction part of the business, a trade union is entitled to be certified pursuant to the construction industry provisions of the Act for the employees engaged in the construction part of the business. In this regard, we agree with the statements of the Board in Ridsdale Steel Fabricators, supra at paragraphs 9, 10 and 11.

8. In Ethier Sand & Gravel Limited, supra, one of the issues before the Board was whether or not the application for certification before the Board was properly brought under the construction industry provisions of the Act. In dealing with that issue, the Board said in part at paragraphs 8 and 9 that:

9. Before an application may be successfully made under the provisions of section 108 of The Labour Relations Act, it is necessary for an applicant to establish not only that it is a trade union within the meaning of section 117(f) but also that the employer is an employer within the meaning of section 117(c) and that the employees are employees within the meaning of section 117(b). With respect to section 117(b), the applicant might well have been able to establish that the employees affected by the application are employees within the meaning of that subsection if it had called any evidence on this point. Since no evidence was called on this point, the Board is not prepared to find that the employees who are affected by this application are employees within the meaning of section 117(b) of The Labour Relations Act.

10. The respondent performs essentially the work of a supplier of materials to employers who apparently operate businesses in the construction industry. As a secondary feature, the respondent constructs roads from its own materials. There is no doubt that the construction of roads is included in the definition of "construction industry" in section 1(1)(f) of The Labour Relations Act. The delivery of materials to employers who are engaged in performing work at the site of the construction of roads is not the operation of a business engaged in construction of "works" at the site thereof and does not fall within the definition of "construction industry" within the meaning of section 1(1)(f). See the Cedarhurst Paving Co. Limited, case [1964] OLRB Rep. Dec. 442. The respondent, on the facts before the Board, is engaged in operations which essentially fall outside the definition of "construction industry" in section 1(1)(f) and as a secondary feature is engaged in operations which fall within the definition of "construction industry" within the meaning of section 1(1)(f). Where an employer is engaged in the construction and non-construction activities with the same work force, the Board has held that such mixed activities do not fall within the meaning of "construction industry" in section 1(1)(f) and that such an employer is not an employer as defined in section 117(c) of the Labour Relations Act. See the John Harvie Limited case [1969] OLRB Rep. April 145; and the Canadian Pittsburgh Industries Limited, case Board File No.

15984-69-M.

[emphasis added]

In Ethier Sand & Gravel Limited, the Board did not have before it an employer that operated a fabricating shop, a mode of operation that is common in the sheet metal business. Further, both of the decisions cited as authority for the proposition that an employer who engaged in construction and non-construction activities with the same work force is not an employer in the construction industry were made prior to the enactment of the Labour Relations Amendment Act Statute of Ontario, 1970 (No. 2) c.85, section 39 which introduced what is now clause (c) of section 117 of the Act and defined who is an 'employee' in the construction industry for the first time. Prior to that, as for example in its John Harvie Limited, [19691 OLRB Rep. April 145 and Canadian Pittsburgh Industries Limited, Board File No. 15984-69-M decisions, the Board had excluded shop, yard, and other off-site employees from bargaining units when considering applications for certification under the construction industry provisions of the Act.

10. Clauses (b) and (c) of section 117 of the Labour Relations Act define "employee" and "employer" in the construction industry as follows:

(b) "employee" includes an employee engaged in whole or in part in off-site work but who is commonly associated in his work or bargaining unit 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;

Nowhere in the Act is it stipulated that a person must operate a business that is engaged solely or even primarily in the construction industry in order for that person to be an employer in the construction industry. Nor has the Board required that a person's business be operated solely or primarily in the construction industry in order for that person to be an employer in the construction industry (see, The Board of Education for the City of Windsor, [1983] OLRB Rep. May 831 and the Board decisions cited therein at paragraph 10). Similarly, there is no requirement that an employee perform a majority or any of his work on a construction site in order to be an employee in the construction industry. It is sufficient for an employee to be "commonly associated in his work or bargaining with on-site employees". Consequently, it is not correct, in our view, to say that an employer engaged in construction and non-construction activities with the same work force cannot be an employer in the construction industry..

11. Dominion Paving Limited, supra, illustrates the Board's response, where, in an application for certification, the respondent employer carries on both construction and non-construction activities with essentially different work forces. That response, which was underlined in Metro Railing Ltd., supra, is to group the employees into separate construction and non-construction bargaining units.

12. We note that in the evidence before us there is simply no evidence to substantiate the respondent's submissions that the portion of its business which is non-construction is inextricably tied to its construction activities so that it would be impracticable, unreasonable or impossible for the respondent to group its employees into separate construction and non-construction bargaining units. In the circumstances of this case we find that this application has been properly brought pursuant to the construction industry provisions of the Act.

13. 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 September 30, 1983, the designated employee bargaining agency is The Labourers' International Union of North America and The Labourers' International Union of North America, Ontario Provincial District Council.

14. The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides that:

An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e) shall be brought by either,

(a) an employee bargaining agency; or

(b) one or more affiliated bargaining agents of the employee bargaining agency,

on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection 3 or by voluntary recognition.

11. The Board further finds, pursuant to section 144(1) of the Act, that all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all construction labourers in the employ of the respondent in all other sectors in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.

12. Our determination in respect of this matter is sufficient to dispose of this application in view of the respondent's admission at the hearing that four of its employees were in fact employed in the bargaining unit, and were engaged in construction activities on new construction sites on the date of application. We disclosed the count at the hearing and advised the parties that, the Labourers Local 183 had filed membership evidence in respect of four of the five persons listed as employees in Schedule "A". Numerically therefore, the dispute between the parties as to whether Alfredo Arrelano was or was not engaged in the construction industry on the date of application, and whether he was or was not an employee within the bargaining unit sought by Labourers Local 183, could not affect the applicant's right to be certified. The parties however, led evidence in respect of the respondent's operations in general, and the work performed by the five employees listed on Schedule "A" in particular. The respondent specifically requested the Board to proceed with hearing the evidence as to the work performed by Alfredo Arrelano so that the Board could address the issue as to whether a part of the respondent's business was non-construction. In his final submissions, counsel for the respondent argued that a part of the respondent's business was "maintenance" and not construction, and urged that such a finding "should be reflected in the decision."

13. In view of the evidence and submissions we have heard, we will deal with the matter as to whether part of the respondent's business is non-construction. In so doing, we recognize that our decision in this regard is obiter and not strictly necessary in order to deal with this application (the Board having the authority to issue an interim certificate pursuant to section 6(2) of the Act in circumstances such as these). Indeed, counsel for the respondent indicated that his client did not necessarily consider itself bound by our determination as to whether a portion of its operations were "maintenance" or "repair and reserved its right to raise that matter again in the future in any other proceedings. Notwithstanding this, we have addressed the issue in the hope that our findings in respect of the respondent's operations will assist the parties in their future dealings without the need for further costly and time-consuming litigation (litigation which also invariably serves as an obstacle to the establishment of harmonious labour relations between the parties).

14. In its reply the respondent describes the general nature of its business as "concrete maintenance". Primarily, its operation involves various pressure grouting processes involving all types of materials. Pressure grouting itself is a process which involves pumping fluid materials into walls, ceilings, floors, etc. After the liquid has been pumped it solidifies thus becoming a "seal". The respondent described the major purpose of its operations was "to seal cracks against the egress of water."

15. The major part of the respondent's operations involves sealing cracks in underground parking garages. The size of the cracks vary and range from one thousandth of an inch to one eighth of an inch. On occasions, the respondent has however dealt with larger cracks. In the evidence before us, the size of the cracks varied from a crack sufficient to let in a "small waterfall" to cracks which let through water "like a steady drip of a bathroom tap". In addition to this work in underground garages, in recent months the respondent has also carried out its operations in places other than underground parking garages, a matter which is addressed in some detail below.

16. Mr. Keith Holdsworth, the owner and President of the respondent testified that it is normal, "almost without exception", for parking garages to spring leaks. In most cases, cracks will develop in the concrete while at other times the water proofing to the joints fails or deteriorates. In most cases the water leakage is due to a deterioration of the structure over time. On occasion leakage may be the result of initial defects in construction. In either event the purpose of the work is to recreate the waterproofing capacity of the structure, or that part of the structure which has lost its capacity to keep out the water.

17. On the date of application two of the employees, David Bindle and John Hainey worked at the Signature Inn Hotel at Norfinch and Finch Avenue. The construction of the walls at that site was hollow concrete block construction with concrete poured into the cavity of the blocks to stabilize the walls. The contractor on site had experienced certain technical problems in pouring the concrete into the basement walls. Having proceeded with the job notwithstanding these difficulties, and having placed the floor on top of these concrete blocks, the contractor called upon the respondent to fill the concrete blocks by pumping a cementitious grout instead of concrete into the cavity of the block. Mr. Holdsworth described that the purpose of this operation was to "stabilize and strengthen the concrete blocks up to their full function as load bearing walls." Mr. Holdsworth described this operation as being "totally different" from his other operations in parking garages because this work was "structural in nature."

18. On the date of application two other employees, David Hand and David Jennings worked on the steel truss pedestrian bridge crossing the railroad tracks to the Dome Stadium in Toronto. The work at the SkyDome was necessitated because certain work performed by a contractor on the bridge bearing pads was found to be unacceptable by the consulting engineers on site. On that site the respondent's work consisted of pumping an epoxy resin (which has a structural use) to fill small gaps above and below the rubber bridge bearings. Mr. Holdsworth testified that the purpose of the work was "to make sure the bearings would not fail in use." Although Mr. Holdsworth described this work as "a nightmare" when compared to his other operations, this was primarily because of certain scheduling requirements and the stringent requirements of the consulting engineers in respect of the type of material used. He acknowledged that the nature of the work, the actual details of the process, was similar to his other operations although the context was obviously different. He described the purpose of the work performed at the SkyDome Bridge as being different because it involved structural ability while generally the purpose of his operations was "to stop leaks".

19. Only one employee, Mr. Alfredo Arellano was at work at an underground parking garage on the date of application. That garage was situated at 333, Clark Avenue in Thornhill, Ontario. The evidence disclosed however, that Mr. Arellano's job was not limited to merely fixing leaks at that garage. An equal proportion of his time was spent in the repair of an expansion joint situated between two floors of concrete. There was a large gap between the joint and the concrete. Styrofoam SM had been placed in the crack. The respondent removed the styrofoam and pumped grout to fill the crack. The purpose of that grout was not to fuse the concrete but rather to act as a filler, to permanently fill the gap and thereby keep back the water. In addition, the water proofing membrane on the top part of the expansion joint was, and had, gradually deteriorated necessitating work in respect of that water proofing membrane by the respondent.

20. Generally when working in underground garages the work required to be performed is indicated to Mr. Holdsworth by the client who walks around the garage facility with Mr. Holdsworth. During this walk around the client either points out the leaks which need to be fixed, or Mr. Holdsworth will make his own notes. As Mr. Holdsworth testified, the client tells him to "fix that one, fix that one", etc. Although the respondent can often return to the same garage for a successive period of years, this return is necessitated by new leaks or the respondent's own warranty. There is no formalized schedule or system used by the respondent to periodically return to garages. To the contrary, the respondent attends on an "as needed" basis. Generally, the garages remain in use while the respondent is performing the work.

21. The actual work done in underground parking garages involves cleaning the crack, drilling holes (at intervals along the joints) and thereafter pumping material through these holes. The material ultimately solidifies in the cracks thereby sealing the cracks.

22. In addition to his work in underground garages, in the last six months the respondent has (a) worked on cracks in a concrete suspended floor slab at MacMillan Bloedel; (b) worked on cracks at the Bloor Viaduct Bridge (while the bridge was closed and a site described by Mr. Holdsworth as an "actual construction site"); (c) "repaired" cracks in the elevator shaft at the Ottawa Civic Hospital; (d) sealed the Waterproof joints around certain tanks at the Napanee Sewage Treatment Plant; (e) worked on cracks at the Old Mill Bridge in Toronto; (f) worked on cracks in the rough pressure wall in a cement quarry; and (g) performed work in the basement of a Spar Aerospace storage facility. The work performed and the process used on each of these occasions is similar to the work performed and the process used at underground garages. The purpose for performing the work however was different. For example, in the case of the suspended floor slab at MacMillan Bloedel the client was afraid that the slab would fall and hurt someone and the respondent was retained to "repair that crack". The Bloor Viaduct Bridge job involved the repair of certain expansion joints which were part of the overall restoration of the bridge. The respondent was engaged by the general contractor to fill a void caused by the improper installation of the new concrete. The work at the Old Mill Bridge on the other hand involved a longitudinal crack in the concrete arches which the respondent's employees filled with an epoxy resin. That filling was not structurally necessary but was filled for "cosmetic" reasons. The purpose of the work at the Napanee Sewage Treatment Plant was to "bring the tanks back to standard" and ensure that the gas tanks did not leak.

23. Counsel for the respondent submitted that part of respondent's business was maintenance and not construction. Although he acknowledged that the work performed by Messrs. Bindel, Hainey, Hand and Jennings on the date of application was construction work, he argued that work performed by Alfredo Arellano, and generally the work performed by the respondent in underground parking garages was not construction work. He argued that, like most things, concrete deteriorates after a period of time and therefore requires maintenance to prevent deterioration of the structure. The respondent's work is to seal cracks, prevent them from leaking further, thereby maintaining the facility and thereby preventing damage to the structure. That damage could ultimately require repair. Counsel emphasized that the respondent's work was part of an ongoing process with the respondent's work forces returning to the same garage as many as three or four times a year. He also underscored the fact that the respondent's operations were carried out while the garage was still in operation and functioning.

24. In support of his submissions, counsel cited the decision of the Board in The Master Insulators' Association of Ontario Inc., [1980] OLRB Rep. Oct. 1477. Counsel argued that the test to determine whether the work was "maintenance" or "repair" should not be whether employees use the same tool, exercise the same skills or apply the same process as employees performing that portion of the work which the parties have agreed is clearly within the definition of "construction industry" found in the Act. Counsel stated that the test to be applied was enunciated by the Board in The Master Insulators' case where the Board stated at paragraphs 28 and 29":

25. 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 in 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.

26. 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 difficulty [sic] 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]

25. Counsel asserted that the Board should look to the purpose of the work performed by the employees. Counsel submitted that concrete requires maintenance as it deteriorates. The purpose of the work performed by the respondent was to prevent further deterioration to the garage structure. The purpose was not to add or subtract work to an existing structure or system. Counsel characterized the respondent's activities as an ongoing process of the maintenance of the underground garage facility. That maintenance was conducted while the garage was still in operation and is significantly different from the "repair" of a garage facility which is generally performed by a general contractor (who shuts down the garage while performing that work). The thrust of counsel's submissions were that, unlike the work of a general contractor who "restores" the garage facility to its operational level, the work of the respondent merely assists in preserving the functioning of the garage structure.

26. In addition, counsel referred to the decision of the Board in The Board of Governors of the University of Western Ontario, [1970] OLRB Rep. Oct. 776 where at paragraph 4 the Board stated:

27. In order to rectify cracks which appeared on the exteriors of some of its buildings, the respondent hired two stonemasons on a temporary basis to affect this purpose. Although the work may be described as general repairs to the exteriors of certain walls, we are of the opinion that the work performed by the two stonemasons is properly characterized as maintenance work rather than as repairing a building or a structure. We therefore find that the respondent is not a person operating a business in the construction industry as defined in sections 90(a) and 1(1)(da) of the Labour Relations Act and that this is not an application for certification within the meaning of section 92 of the Labour Relations Act.

As this reported decision predates the decision of the Board in the Master Insulators', and is sparse in its recitation of facts relating to the work actually performed or the context in which it was performed, we have found it of little assistance.

27. On the evidence before us we are unable to concur that the work performed by Mr. Arellano was "maintenance" and not "repair". Although we concur that the work functions performed by employees is neither a determinative factor nor the test employed to distinguish "maintenance" work from "repair", we find it convenient to use these work functions as a starting point in our analysis. We note that the work functions of the employees (drilling, wire-brushing, trowel work and the operation of a grout pump) are the type of work functions typical of certain persons employed in the construction industry. That however, is not sufficient to make this "repair" or "construction" work rather than maintenance. Similarly, we are not persuaded that merely because these employees perform the exact same work functions and employ the exact same process, regardless of whether they are engaged in the disputed work (parking garages) or in what the parties have agreed is clearly construction work (i.e. work on the Dome, and the Signature Inn site) is determinative of the issue. The context in which the work takes places the purpose of the work is the demarcation line between maintenance and repair. At times that demarcation line is bold and readily identifiable. On other occasions, such as the present one, that line is thin and less easily identified.

28. In our view, application of the test enunciated in the Master Insulators' case in respect of this purpose and context, namely is the work "... necessary to restore a system or part of a system which has ceased to function or function economically" leads to the conclusion that this work is "repair~~ and not "maintenance". (See also Inscan Contractors (Ontario) Inc., [1986] OLRB Rep. May 640 at paragraphs 20 and 21). In the case of the work performed by Mr. Arellano on the date of application, fifty percent of that work involved the removal and replacement of an expansion joint and the waterproofing membrane of that joint. That work falls squarely on the "repair" side of the demarcation line between repair and maintenance. In respect of this work we note the decision of the Board in Quinard Limited, [1982] OLRB Rep. July 1054 where at paragraph 9 the Board stated:

29. It is the contention of the respondents that the purpose of the work in question is to preserve the functioning of an existing system and hence according to the reasoning of the Board in Master Insulators Association of Ontario Inc. [1980] OLRB Rep. Oct. 1477, the work should be regarded as maintenance work. We are unable to accept this contention. To the extent that work is done on existing equipment and piping to keep it functioning properly, we agree that it can properly be classified as maintenance work. However, in the instant case, large pieces of existing equipment are being taken out of the production process and replaced by new equipment. Piping has to be attached to all of the new equipment and a certain amount of additional piping installed. In our view, the removal of large pieces of equipment forming part of the existing production system, and the installation of new equipment along with the related piping work, goes beyond simple maintenance work and constitutes work which comes within the construction indust y. We are further satisfied that it is work within the ICI sector.

[emphasis added]

29. Similarly, we are of the view that the remaining fifty percent of Mr. Arellano's work at the underground parking garage (work which the respondent characterizes as the typical and major portion of its activities) is work which is also properly characterized as repair or construction and not maintenance. Although that work is much closer to the demarcation line, on balance and after a review of all of the evidence, we find that the work falls within the definition of "construction industry" as found in section 1(1)(f) of the Act. The work of the respondent in underground garages involves restoring the waterproofing capabilities of the structures. The waterproofing capability of the garage has failed and the respondent's job is to recreate or reestablish that waterproofing capacity. To paraphrase the language of the Board in Master Insulators', the respondent is adding the required waterproofing capacity to the concrete structure to enable that structure to function properly. Unlike the case before the Board in Gallant Painting, [1987] OLRB Rep. Mar. 367 where the Board concluded that the exterior painting of structures at a petrochemical complex was "maintenance" and not "repair", this is not a case where the respondent applies a sealant, paint or tar to prevent leakage or saturation of water that has not yet occurred. To use the language of the Board in Gallant Painting, supra, this is not work "done for the primary purpose of sustaining and protecting operating systems". Rather it is work performed after the system has ceased to function. The "system" in this case is the water proofing capabilities of the concrete structure.

30. We are reinforced in this view by a number of factors. First and foremost is the manner in which the respondent is advised or becomes aware of the work which has to be performed. When the respondent is called in, the garage is already leaking. Water is already coming in through cracks in the concrete. As Mr. Holdsworth himself testified on several occasions, his company is there "to fix the leaks". Although the semantics of the words repair, maintenance, or fix are not in and of themselves conclusive (the words are often although at times erroneously used interchangeably), Mr. Holdsworth's use of the word "fix" in this case accurately summarises the nature of the respondent's work. A garage leaks. The leaks are identified and the employees perform the work required to fix or repair the cracks which cause the leaks.

31. Secondly, and as a factor auxiliary to the first, we note that the work of the respondent does not involve a continuous program of routine or regular "maintenance". There is no evidence of regular or routine attendance by the respondent in the parking garages of its customers. Although the respondent may attend at a garage several times a year, this reattendance is necessitated by further problems and/or new leaks. If something breaks down and needs to be fixed, the company reattends. Neither is there any evidence to suggest that the respondent has a system through which regular or routine attention is paid to the parking garage structures or the concrete structures on which it has worked or continues to work. There is no evidence to suggest the continuous, regular or preventative work which goes towards sustaining the concrete structure to avert or preclude deterioration. The respondent does not, for example, have a contract which obliges it to keep the structure free of leaks. Rather, the respondent collects a fee for service. The service is to fix and repair leaks in the structure.

32. For all of these reasons we have concluded that all of the work performed by Mr. Arellano was work within the construction industry.

33. 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 April 12, 1989, 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.

34. Section 144(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate if the applicant has the requisite membership support:

…the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.

[emphasis added]

Therefore, pursuant to section 144(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 9 above in respect of all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.

35. Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all construction labourers in the employ of the respondent in all sectors of the construction industry in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.