International Brotherhood of Painters & Allied Trades Local 1824 v. Courtesy Group Inc., 1990 CanLII 5750

[1990] OLRB Rep. November 1124

0558-90-R; 0597-90-R International Brotherhood of Painters & Allied Trades Local 1824, Applicant v. Courtesy Group Inc. c.o.b. Courtesy Maintenance, Respondent

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. N. Fraser and C. McDonald.

APPEARANCES: Elizabeth Mitchell and George McNenemy for the applicant; D. Brent Labord, Jim Schroeder and Steve Falk for the respondent.

DECISION OF G. T. SURDYKOWSKI, VICE-CHAIR AND BOARD MEMBER C. MCDONALD; November 14, 1990

1. The name of the respondent in both of these applications is amended to read: "Cour­tesy Group Inc. c.o.b. as Courtesy Maintenance".

2. The applicant is a trade union within the meaning of section 1(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 for section 139(1) of the Act on April 12, 1978, the International Brotherhood of Painters and Allied Trades and the Ontario Council of the Interna­tional Brotherhood of Painters and Allied Trades is that designated employee bargaining agency. It has been designated to represent, among others, journeymen and apprentice painters repre­sented by its affiliated bargaining agents in bargaining in the industrial, commercial and institu­tional sector of the construction industry in the Province of Ontario.

3. Board File No. 0597-90-R is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 114(1) of the Act.

4. The respondent took the position that it is not employer in the construction industry and that the construction industry certification provisions of the Act have no application to it. This threshold issue was argued by the parties on the basis of an agreed statement of fact. Upon hearing the statement of fact and the representations of the parties, the majority of the Board (Board Member Fraser dissenting) ruled, orally, that the respondent is an employer in the construction industry within the meaning of the Act for the purposes of the application in Board File No. 0597-90-R.

5. Although the respondent's business is primarily in cleaning and maintenance, the respondent had four employees, who were specifically hired for that purpose, engaged in painting various hallways, lounges and rooms in the student residence at Wilfred Laurier University in Waterloo at the time that is material to this application. This work was being performed pursuant to an agreement between the respondent and the university entered into on or about May 2,1990. The surfaces painted by the respondents' employees had been painted and repainted on a number of occasions. In fact, it was agreed that the residence that the respondent had been contracted to paint had been repainted approximately every two years. The university selected the colour of paint, which was the same as that previously on the various surfaces - beige. There was some inci­dental patching of the surfaces required prior to painting. The painting was done using rollers.

6. The applicant conceded that not all painting is construction work but argued that the painting done by the respondent at the Wilfred Laurier University student residence in this case was. The respondent argued that it was in the nature of maintenance work, not construction.

7. The nature of painting is such that it is often difficult to determine whether it is con­struction work or not. In Gallant Painting, [1987] OLRB Rep. Mar. 367, the Board dealt with a similar question as follows:

8. The evidence reveals that, at the time the application was made, the respondent was engaged in painting various platforms, railway cars, buildings, pipes, tanks and other containers, and other structures at the petrochemical complexes operated by Petrosar Limited and Dupont Canada Inc. in Corunna, near Sarnia. Though some of the painting was within or of enclosed structures, the bulk of it was of exterior structures. All of the painting done by the respondent was of existing operating structures that had been painted before. Further, this painting was part of the ongoing plant "maintenance" programs of Petrosar and Dupont. The purpose of the painting was and is to apply a coating that will preserve and protect the structures from corro­sion and thereby extend their useful lives. Colours, though selected by Petrosar and Dupont respectively, are dictated by the concern for protection and by legislation. We find that, con­trary to the suggestion of the applicant, aesthetics plays little or no role in the painting and only becomes a consideration, if at all, after the primary goal of protection is achieved and the dic­tates of the legislation are satisfied. We are also satisfied that there is a difference between the techniques and materials used in the relevant painting done by the respondent and the tech­niques and materials used in new construction painting.

9. Subsection 117(c) of the Act defines an 'employer" in the construction industry as follows:

117(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;

To be an employer in the construction industry, one must do work in the "construction indus­try" which is defined, in subsection 1(1)(f):

(f) "construction industry" means the business that are engaged in construc­tion, 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;

13. Though the words "maintenance" and "maintaining" do not appear in the Act, the distinc­tion between maintenance work and construction work has long been recognized by the Board (see for example, Tops Marina Motor Hotel, 64 CLLC 16,004; Dravo of Canada Ltd., [1967] OLRB Rep. June 261; Quinard Limited, [1982] OLRB Rep. July 1054). Unfortunately, there is no sharp line that separates construction work on one hand from maintenance work on the other, and what is referred to as "maintenance" work in the broad sense or for internal corpo­rate purposes is not necessarily maintenance work for labour relations purposes. In argument, both the applicant and the respondent relied on the Board's decision in The Master Insulators' Association of Ontario Inc., [1980] OLRB Rep. Oct. 1477. In addition, counsel for the applicant submitted that the painting done by the respondent at the Petrosar and Dupont facilities was (and is) "decorating" within the meaning of that word as used in section 1(1)(f) of the Act. He argues that the Act uses "decorating" in an industrial or generic sense rather than in any purely aesthetic sense.

14. In Master Insulators', (supra at paras. 28 and 29), the Board explained the distinction between construction work and maintenance work as follows:

15. 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.

16. 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 who 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 pan 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]

Though it was asserted in this proceeding that the respondent was (and is) engaged in "decorat­ing" (rather than "repairing"), we find this reasoning equally applicable to the issue in this pro­ceeding and we adopt the same. Further, the words used by the legislature must be interpreted within the context in which they are used. However, insofar as it is possible within that context, the words must be given their plain and ordinary meaning. The Legislature chose to use the word "decorating" as opposed to "painting" or some other word. The verb "decorate" is defined by the Concise Oxford Dictionary (6th ed) as meaning to "furnish with adornments". According to that same dictionary, to "adorn" is to "add beauty or lustre to" something; in other words, to improve its appearance. Accepting the submissions of the applicant would give an unnatural meaning to the word "decorating" and create a situation where virtually no paint­ing would be maintenance work. On the other hand, the respondent's position, which we accept as correct, uses "decorating" in its plain and ordinary sense and leads to an acceptable labour relations result; that is, painting can be either maintenance work or construction work, depend­ing on the circumstances.

15. In the results, we find that, insofar as the painting done by the respondent was and is of existing structures done for the primary purpose of sustaining and protecting operations sys­tems, it must be classified as maintenance work. Consequently, this application for certification was not properly made pursuant to the construction industry provisions of the Act.

(See also Keith Holdsworth Consulting Ltd., [1989] OLRB Rep. June 619).

8. We agree. In our view, it is particularly appropriate to take a purposive approach in determining whether or not any particular painting is construction work.

9. In our view, the primary purpose for the painting in this case was a decorative one. It was not a matter of attempting to sustain or protect the function of the premises being painted.

Rather, it was to decorate the premises in order to improve the appearance of the student's resi­dence and thereby improve the quality of the living space. The colour of paint being used was of little relevance, although we do observe that beige can be used as a decorative colour. And, while the repetitive nature of the painting is a relevant consideration, it is certainly not determinative. It is not unusual for living spaces to be redecorated periodically.

10. Clause (c) of section 117 of the Act defines an "employer" in the construction industry as:

(c) . . . 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;

As the Board observed in Ridsdale Steel Fabricators Inc., [1987] OLRB Apr. 601:

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 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.

(See also Keith Holdsworth Consulting Ltd., supra).

11. Having been engaged in construction activities at the time that is material in Board File No. 0597-90-R, the respondent is an employer in the construction industry within the meaning of the Labour Relations Act.

12. In the result, we were satisfied that the application in Board File No. 0597-90-R was properly made pursuant to section 144(1) of the Act.

13. The Board then went on to find that, having regard to the provisions in section 144(1) of the Act, all journeymen and apprentice painters in the employ of the respondent in the indus­trial, commercial and institutional sector of the construction industry in the Province of Ontario and all journeymen and apprentice painters in the employ of the respondent in all other sectors of the construction industry (that is, excluding the industrial, commercial and institutional sector) in the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township), save and except non-working foremen and persons above the rank of non-working foremen, constitute a unit of employees of the respondent appropriate for collective bargaining.

14. Having regard to the agreement of the parties with respect to the list of employees in the bargaining unit on the date of application and the membership evidence filed by the applicant in support of its application, we were satisfied, on the basis of all the evidence before the Board, 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 June 13, 1990, the terminal date fixed for the application in Board File No. 0597-90-R 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 Act.

15. Consequently, pursuant to section 144(2) of the Act, a certificate, to be dated November 14, 1990, 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 agents named in paragraph 2, above, in respect of all journeymen and apprentice painters 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.

16. Further, and also pursuant to section 144(2) of the Act, a certificate, also to be dated November 14, 1990, will issue to the applicant in respect of all journeymen and apprentice painters in the employ of the respondent in all sectors of the construction industry other than the industrial, commercial and institutional sector in the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries township), save and except non-working foremen and persons above the rank of non-working foreman.

17. On consent of the parties, the application in Board File No. 0558-90-R is withdrawn with leave of the Board.

DECISION OF BOARD MEMBER W.N. FRASER; November 14, 1990

1. I dissent.

2. I disagree with the decision of the majority in finding that the Respondent is an employer in the construction industry in accordance with section 117(e) of the Act.

3. The work in question, the re-painting of existing surfaces at the Nils Willison and Carla Conrad residences at Wilfred Laurier University is, in my opinion, maintenance rather than con­struction.

4. The re-painting of existing surfaces is carried out on a regular basis, said to be every two to three years. The owner chose a beige colour, the same as has been used previously.

5. The continuing nature of this work, together with the use of the same beige coloured paint, seems to me to be more to maintain cleanliness, than for decorative purposes.

6. I would not have found the Respondent to be an employer in the construction industry and would dismiss the application for certification under Section 144(2) of the Act.