Ontario Labour Relations Board

[1989] OLRB Rep. May 417

2002-87-R United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 800, Applicant v. Briecan Const. Limited, Respondent

BEFORE: Inge M. Stamp, Vice-Chair, and Board Members W. Gibson and J. Redshaw.

APPEARANCES: A. J. Ahee, B. Whitehead, M. Zangari and R. LaForest for the applicant; K. R. Valin and Wilfrid Dupuis for the respondent.

DECISION OF INGE M. STAMP, VICE-CHAIR, AND BOARD MEMBER J. REDSHAW; May 1, 1989

1. This application for certification filed pursuant to the construction industry provisions of the Labour Relations Act was scheduled for hearing to deal with a number of issues as outlined in decisions of the Board, differently constituted, dated November 25, 1987 and January 11, 1988.

2. On the day scheduled for hearing this matter, the first issue the Board dealt with was whether the documents filed by the applicant purporting to be evidence of membership in the applicant constitute evidence of membership within the meaning of section 1(1)(l) of the Act. The applicant in the instant application for certification filed membership evidence which on its face does not clearly state that any money was paid to the applicant on account of initiation fees or union dues, nor is there any clear statement that anyone on behalf of the applicant collected the money.

3. After considering the viva voce evidence adduced by the applicant and the submissions of the parties, with respect to the sufficiency of the membership evidence, the Board was satisfied that the money was in fact paid to the applicant on account of initiation fees. The Board was therefore satisfied, on the basis of all the evidence before it, that the membership evidence filed by the applicant meets the requirements of section 1(1)(l) of the Act, and made an oral ruling to that effect.

4. The second issue before the Board is whether or not this application is properly brought under the construction industry provisions of the Act. The positions of the parties are set out in paragraph 4 of the Board's decision (differently constituted) dated January 11, 1988, which reads as follows:

5. The respondent concedes that the employees who were the subject of this application were its employees during the material times but asserts that it is not, and was not during the material times, an employer in the construction industry within the meaning of section 117(c) of the Act. In essence, the respondent asserts that its employees, and specifically the one affected by this application, were performing maintenance work, as opposed to construction work, for Kidd Creek Mines Ltd. in Timmins and that this application is not properly brought under the construction provisions of the Act. The applicant, which seeks to be certified for its standard bargaining unit of plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of the respondent in all other sectors of the construction industry in Board Area 19, save and except non-working foremen and persons above the rank of non-working foreman (and also request a clarity note declaring that welders working at the plumbing and steamfitting trades are employees included in the bargaining unit), maintains that there were such persons employed by the respondent doing construction work during the material times.

6. The Board heard the evidence of Wilfrid Dupuis, the Kidd Creek Mines Ltd.'s General Foreman in charge of maintenance in the smelter plant. Briecan Const. Limited ("Briecan") has a contract with Kidd Creek Mines Ltd. ("Kidd Creek") to supply maintenance manpower as needed. A few days prior to the application date, a major outage (also known as a "shutdown") commenced at Kidd Creek. This was the eighth shutdown since 1980 and Kidd Creek has been able to reduce the frequency of these shutdowns from every six months to eighteen months due to improved refractory brick for the smelter. Apart from the major shutdowns of approximately thirty-five days, there are also mini shutdowns of twelve hours as well as routine day-to-day maintenance work.

7. There are four crews within the smelter complex to maintain the equipment of the smelter plant related to the operation. Each crew is made up of all the trades required to handle ongoing maintenance tasks. A few days prior to this application, a major shutdown was scheduled to begin. Kidd Creek made a determination as to how much additional manpower was required during the shutdown to augment its own maintenance forces. There were approximately 235 Briecan employees at Kidd Creek throughout the operation with approximately 80 employees in the crew supervised by Mr. Dupuis.

8. The work that is the subject of this application was performed in the smelter plant and was part of the rebricking of the furnace, which included crashing the roof containing refractory bricks and copper blocks, removing the pipes, replacing the bricking inside, repiping and testing the copper blocks. The old pipe is scrapped and although it could have been reused, it is more efficient to use new pipe.

9. Kidd Creek supervision was assigned to Briecan employees. No blueprints were used in the rebricking of the furnace. The experience of successive shutdowns enabled Kidd Creek to rebrick and repipe without blueprints. It is the evidence of the Kidd Creek representative that the furnace was "only restored and not changed in any way". There were some modifications as there had been in the other "campaigns" (shutdowns). During each shutdown, more is learned about the heat problem and how to extend the life of the refractory bricks in order to extend the time between shutdowns. The modifications to the furnace this time included the adding of two 10 ton copper blocks used in the cooling process, as well as repositioning the existing copper blocks for maximum cooling efficiency. It is only during a shutdown that there is access to these cooling blocks. Approximately 10% of the shutdown work on the furnace involved piping.

10. The two copper blocks were installed by another contractor with Briecan working on the piping system that interacted with the installation of the two additional blocks. There are approximately 80 cooling blocks in the furnace, and the only opportunity to test these blocks is during the shutdown, when approximately eight to ten copper blocks were replaced together with the required replacement piping. Both Kidd Creek and Briecan employees worked on the piping.

11. Additional cooling lines (1" diameter water pipe) were installed around the two new copper blocks. In order to conserve the expensive use of water, a decision was made to "twin" the two new blocks. There were approximately a dozen blocks that were already twinned. The Kidd Creek representative testified that there were approximately 50% Briecan and 50% Kidd Creek employees, gasfitters and welders, working on natural gas piping around the smelter, including work on valves and regulators. A number of bypasses were done to facilitate future repairs to the regulators without shutting down the gas line. Briecan forces did most of these bypasses. The bypasses were fabricated by Briecan forces in the Kidd Creek maintenance shop. Approximately 80% of the bypasses were done by Briecan forces and 20% by Kidd Creek.

12. When rerouting the gas line, some flanges had to be replaced due to wear and tear. The existing line had gas meters which were removed because they malfunctioned and replaced with new meters. The Kidd Creek representative stated that it "probably was 50-50, Kidd Creek and Briecan forces" that worked on the gas lines, as Kidd Creek's policy on any critical work is to have one Kidd Creek to one contractor employee.

13. The applicant called four steamfitters and three welders to give evidence with respect to the work they did on the application date. The applicant's evidence generally corresponds with that of the respondent. Work was performed on the cooling system including the new copper blocks, 1" and 2" piping, headers (welding and threading), a new 4" take-off line from the 6" watermain, valves, flanges, the installation and fabrication of the gas bypass system including new meters. Each meter had its own bypass. The old system was cut out and replaced. Briecan employees performed "hundreds of gas welds" according to one witness.

14. The following is a summary of the extensive submissions and cases cited by both parties in support of their positions in this matter.

15. The respondent takes the position that it does not operate a business in the construction industry, but rather is an employer engaged in maintenance. If a minority of the work is found to be construction, the respondent contends that the appropriate unit is an industrial unit due to the intermingling of Briecan and Kidd Creek forces and because of the mix of construction and non-construction work. Further, the respondent submits since Briecan's employees are working side by side with Kidd Creek maintenance employees doing the same work and are supervised by Kidd Creek's General Foreman, and since Kidd Creek is not in the construction business but in the mining and smelter business, Briecan has to be considered as being in the same business for the purpose of this application.

16. It is the respondent's position that it would make no labour relations sense to create a construction bargaining unit for a small part of the maintenance crew. In the respondent's view, it would lead to fragmentation and jurisdictional disputes and destroy the relationship which now exists in a mine site such as Kidd Creek. In support of its position, the respondent cited two Kidd Creek decisions, [1984] OLRB Rep. Mar. 481 and [1986] OLRB Rep. June 736. The respondent referred the Board to the former with respect to what work is considered maintenance as opposed to construction.

17. On the nature of the work, it is the respondent's position that the work is maintenance. Unlike Inscan, [1986], OLRB Rep. May 640, the furnace did not cease to function; it was stopped for routine maintenance and inspection and is distinguishable from that case. New piping replaced the existing piping and that the piping was new is not relevant to the determination of the nature of the work performed. The old piping could have been reused. The new cooling blocks, the twinning of some blocks and the bypasses on the gas line, as well as the new meters was work done to maintain, not to improve, the furnace's capacity and therefore, falls within the definition of maintenance, not construction.

18. The respondent contends that had Kidd Creek done the work with its own forces, it would have been found to be maintenance as the prior Kidd Creek cases found. The respondent also cited Gallant Painting, [1987] OLRB Rep. March 367, and Master Insulators Association of Ontario Inc., [1980] OLRB Rep. Oct. 1477 for the distinction between construction and maintenance.

19. The respondent cited the following cases for the proposition that an all employee unit is appropriate if some construction work was done and a finding is made that there was a mix of activities: Ethier Sand & Gravel Limited, [1979] OLRB Rep. Oct. 962 and Dominion Paving Limited, [1981] OLRB Rep. Oct. 1370. The respondent submits that if the Board found some of the work to be construction, it will also have to find that the work is completely interchangeable. There was no distinction made by Kidd Creek between their own employees and Briecan employees - they were totally integrated. The respondent submits that it does not matter for the purpose of his argument that Kidd Creek was not a party to the proceeding. It is the nature of the work performed that is relevant. The percentage of the mix is not important. If both construction and nonconstruction work is done by the same employees, then an industrial bargaining unit is appropriate. The respondent contends that the applicant is applying under the wrong section of the Act and that this application should be dismissed.

20. The applicant submits that there is a threshold issue of what work was performed. The position of the applicant is that the work performed during the shutdown, in particular the two cooling blocks that were added and the modifications made to the furnace "made the operation more efficient" on the respondent's own evidence. The cooling system was enlarged and enhanced in order to extend the life of the refractory brick and to cut down on the frequency of shutdowns -if the furnace runs longer it puts out more product. Twinning of the cooling blocks was designed to make the furnace more cost-efficient by saving on water used in the cooling process. The fact that new piping was used when repiping is not determinative of whether the work is construction or maintenance. New water lines from the existing water main were installed for the new cooling blocks. New magnaflux meters with bypasses were installed on the gas lines to the furnace to make the operation more efficient. The repair and modification to the gas lines facilitate maintenance but is not regular maintenance. The applicant's members were not intermingled with Kidd Creek employees, but rather both Briecan's and the owner's forces were working in the Smelter plant.

21. It is the applicant's submission that the work in dispute is work that falls within section

1(1)(f) of the Act and is construction work. The way in which the work is perceived by Kidd Creek does not affect this application. In Abitibi-Price Inc., [1986] OLRB Rep. Dec. 1613, the owner/client performed the work. They were found to be an employer in the construction industry. The second issue is whether Briecan is an employer in the construction industry for the purpose of the construction industry provisions of the Act. The applicant contends that its members performed construction work on the date of application, and that it met the test of what is construction work as set out in paragraphs 28 & 29 of Master Insulators, supra, in that the work performed made the furnace more efficient and easier to maintain throughout the year.

21. The applicant cited Abitibi, supra, for its position that it is entitled to bring an application pursuant to section 144(1) of the Act for its craft. In Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220, the Board stated that it would look at the work performed on the date of application in the construction industry. In the applicant's view, Ethier, supra, does not apply in this case since there the respondent employer operated two distinct businesses and the applicant was not a union with a history in the construction industry. This is not the situation here. In Dominion Paving, supra, no members of the applicant were at work on the date of application. In the instant application before the Board, pipefitters and welders were at work on the date of application performing construction work.

22. The applicant argues that if Briecan is engaged in construction work, the applicant has a right to be certified for their craft unit. This does not in any way impact on the respondent's operation. There is no evidence before the Board as to what the other Briecan employees were doing outside the smelter plant. The Kidd Creek cases do not apply to this situation. The IBEW wanted to carve out an IBEW maintenance unit from a larger maintenance unit. The applicant's position is that their members were in the smelter plant for a specific purpose and a specific period of time. The applicant submits that it has met the criteria in section 6(3) as set out in the Kidd Creek cases and the Board should issue a certificate.

23. There are two related issues before the Board: 1) whether the work performed on the application date is construction work as defined in the Act, and 2) whether Briecan is an employer in the construction industry. 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 off-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.

24. The Board has stated in a number of cases that if an employer employs workers performing construction work he is then an employer in the construction industry for purposes of the construction industry provisions of the Act. In Ridsdale Steel Fabricators, Inc., [1987] OLRB Rep. April 601, the Board states in paragraph 10:

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.

25. This brings us to the issue of whether the work performed by the employees that are the subject of this application falls within the definition of construction work pursuant to the Labour Relations Act.

26. In our view, the Kidd Creek decisions are distinguishable. The applicant was trying to carve out a group of employees performing maintenance work from a larger maintenance group of one employer. It was not an application pursuant to the construction industry provisions of the Labour Relations Act. A lot of evidence was heard about what in the IBEW's opinion was maintenance work and we would only note that in paragraph 46 of the earlier Kidd Creek decision the Board stated:

27. The other problem is, that in this situation, the term "maintenance work" really has no precise meaning. Not only is such work done pursuant to the ICI agreement at construction rates, but much of it may actually be construction work. The definition of maintenance varies as one moves from I.B.E.W. Local to I.B.E.W. Local; moreover, the witnesses had quite different (and sometimes bizarre) characterizations of work which, in their view at least, was "clearly" maintenance - as opposed to construction.

28. In the case before us, there is only one respondent, Briecan. The type of work done by Kidd Creek forces can have no bearing on the instant application for certification. In the absence of any section 1(4) or 63 issues being raised, the nature of the work done by Kidd Creek employees is irrelevant for the purpose of this application.

29. With respect to the "mixed activities" cases, Ethier, supra, and Dominion Paving, supra, are both distinguishable from the facts in this case. In Ethier, the applicant was not found to be a trade union "that according to established trade union practice pertains to the construction industry". In Dominion Paving, no construction trades were at work on the date of application and the bargaining unit was restricted to employees in non-construction. The evidence before us is that Briecan had a contract to do maintenance work at Kidd Creek. The Briecan employees included a number of trade classifications which are also common to the construction industry.

30. With respect to the nature of work that was performed on the date of application, the date the Board looks at in an application in the construction industry, we are satisfied that the nature of the work meets the criteria set out in Master Insulators, sup ra, and Inscan, supra. Master Insulators in paragraphs 28 and 29 states:

31. 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, insofar 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.

[emphasis added]

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]

The Board, following the Master Insulators in paragraphs 20 and 21 of the Inscan decision states:

20. The Board, having found at paragraph 28 that the work at the Fearman and Stelco plants was work within the ICI sector of the construction industry and the remaining work was to be regarded as maintenance work, seems to be offering in the emphasized words in paragraph 29 a definition of maintenance and repair by which to distinguish the remaining work from work which might be captured by the word "repair" in section l(1)(f). Since the Board ultimately found that the remaining work, which it regarded as maintenance work, was not captured by the scope clause of the provincial collective agreement, that is the construction agreement, it is reasonable to conclude that it also was not captured by section 1(1)(f). It is no less reasonable, then, to conclude that repair work defined as work "...necessary to restore a system or part of a system which has ceased to function or function economically ..." is captured by the section 1(1)(f) definition of construction just as certainly as it captures work ". . . which involves the addition to an existing facility or which will increase the designed or production capacity of an existing facility." Those were the words which the Board used in paragraph 28 of its decision to distinguish the work it regarded as "new construction" from the rest of the work which it regarded as maintenance.

21. The definition of repair work as work necessary to restore a system or part of a system which has ceased to function or function economically certainly fits the work performed by Inscan at the Clarkson Refinery. Richard Ives' graphic description of the fire damage to the hydrotreater was that both stages of the unit were producing product the day before the fire and incapable of producing it the day after. It was three weeks before the second stage could produce its normal product. There is no doubt that the hydrotreater ceased entirely to operate for three weeks. The installation by Inscan of the replacement insulation on piping and equipment was part of the exercise of restoring normal function to both stages of the hydrotreater. That is work in the construction industry as defined in section 1(1)(f) of the Act and clearly is work within the industrial, commercial and institutional ["Id"] sector of the industry.

22. In Gallant Painting, supra, the Board found that the painting was done for the primary purpose of sustaining and protecting operating systems and was therefore maintenance. This is not inconsistent with Master Insulators or Inscan and is distinguishable from the instant case.

23. The key words "work necessary to restore a system or part of a system which has ceased to function or function economically" and "work which involves the addition to an existing facility or which will increase the production capacity of an existing facility" can be applied to the work performed at the smelter plant at Kidd Creek. In Quinard Limited, [1982] OLRB Rep. July 1054, the Board in paragraph 9 stated:

24. 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 industry. We are further satisfied that it is work within the ICI sector.

25. In order to determine whether the work performed by the applicant's members is construction work as defined in the Act, it is useful to look at the context in which the work was performed. The furnace had ceased to operate. The fact that it was shut down to replace the worn-out refractory brick does not alter the nature of the work. The definition of construction in section 1(1)(f) of the Labour Relations Act includes "... repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site thereof". In order to replace the refractory brick, the furnace had to be "crashed" and the piping cut out. This demolition work is defined as construction work under the Act. The work of making the furnace operational again is beyond routine maintenance work and is repair work as defined in Inscan, supra: "... work necessary to restore a system or part of a system which has ceased to function or function economically...". The additions and modifications that were made during the shutdown clearly were done to improve the cooling system, conserve valuable water resources and facilitate easier maintenance on the new meters without having to shut off the gas. All of the work performed in connection with the rebricking or restoring of the furnace, whether demolition, repair or new construction is construction work as defined in the Act.

26. Having regard to all the evidence before us, the submissions of the parties and the cases cited, the Board finds that the work performed on the date of application by members of the applicant is construction work as defined in the Labour Relations Act and that the respondent is an employer who operates a business in the construction industry pursuant to section 117(c) of the Act.

27. Having regard to the evidence before us and the earlier decisions in this matter, the Board finds that pursuant to section 144(1) of the Act, all plumbers and plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all plumbers and plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of the respondent in all other sectors within a radius of 81 kilometers (approximately 50 miles) of the Timmins Federal Building, 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.

28. 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 November 5, 1987, 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.

29. 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 2 of decision dated January 11, 1988 in respect of all plumbers and plumbers' apprentices, steamfitters and steamfitters' apprentices 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.

37. Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all plumbers and plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of the respondent in all sectors of the construction industry within a radius of 81 kilometers (approximately 50 miles) of the Timmins Federal Building, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.

DECISION OF BOARD MEMBER W. GIBSON; May 1, 1989

1. I dissent from the majority decision.

2. For the following reasons, I believe the work carried out by Briecan on the date of application was maintenance work, previously defined by the Board as work "to sustain and maintain an operating facility, and to enable that facility either to operate efficiently, or to attain its designed or production capacity" (Master Insulators Association of Ontario Ltd., [1980] OLRB Rep. Oct. 1477):

(i) The contract between Kidd Creek Mines and Briecan Construction called for Briecan to supply maintenance manpower as needed.

(ii) By viva voce evidence the Board heard that Kidd Creek made a determination, a few days prior to the shutdown, as to how much additional manpower was required to augment its own maintenance forces. Although Kidd Creek has a permanent crew employed year-round on maintenance duties, it is obvious that, over a shutdown period when the plant is out of production, maximum possible manpower must be applied so that the plant is back on stream as soon as possible. Kidd Creek could not maintain a permanent maintenance crew year-round at this peak level.

(iii) Kidd Creek's supervision was assigned to Briecan employees who work side by side with Kidd Creek employees doing the same work. Kidd Creek is not an employer in the construction business.

(iv) Over the course of time, by means of improved materials and improved technology, Kidd Creek has been able to reduce the frequency of these shutdowns from every six months to every eighteen months. The work in dispute here was carried out for the production capacity to be sustained for even longer periods between shutdowns.

(v) The major portion of the work involves the periodic replacement of the refractory brick, and Kidd Creek is constantly working to improve the cooling process so that the refractory brick retains its efficiency for a longer period. The addition of 2 more copper blocks, with the additional 1" cooling lines, is clearly for this purpose.

(vi) Also, the installation of a number of bypasses to the gas regulators so that they can be serviced in the future without shutting down the gas line, is designed to simplify the maintenance of these regulators.

3. Briecan, on the date of application, was not an employer in the construction industry within the meaning of section 117(c) of the Labour Relations Act because its employees were engaged in maintenance work. This application should have been brought under the general provisions of the Act, not the construction industry provisions.