Ontario Labour Relations Board
Parties: Labourers' International Union of North America, Local 183, Applicant v. Belmont Property Management Ltd., Respondent
Before: Louisa M. Davie, Vice-Chair, and Board Members W. H. Wightman and R. R. Montague.
Appearances: Craig Flood, Steve Wahl and Biagio Palazzolo for the applicant; Walter Thornton and Harry Nicholls for the respondent.
Decision of the Board: October 22, 1991
Decision
- 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" or "the union") 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(3) of the Act. In this application that bargaining unit consists of all construction labourers in the employ of the respondent:
in all sectors of the construction industry other than the industrial, commercial and institutional sector, 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. In addition, the Labourers' Local 183 seek a clarity note that the bargaining unit includes all employees engaged in cement finishing, waterproofing, and restoration work.
- The respondent (hereinafter referred to as "the employer" or "Belmont") asserts that it was not engaged in construction work on the application date. Counsel for Belmont submits that as Belmont was not an employer in the construction industry, the unit sought by the Labourers' Local 183 is not appropriate for collective bargaining. Consistent with that position the respondent proposes a bargaining unit described in the following terms:
All garage maintenance employees employed by the Respondent in the Municipality of Metropolitan Toronto, save and except foremen and persons above the rank of foreman and students employed during the school vacation period.
Counsel for Belmont also submits that in the event the Board determines that Belmont is an employer in the construction industry, and that the unit sought by the Labourers' Local 183 is appropriate, the Board ought not to grant the clarity note sought by the union as there is no evidence that Belmont employed persons engaged in cement finishing, waterproofing and restoration work on the application date.
Counsel for the union agrees with the description of the bargaining unit proposed by Belmont if the Board should determine that Belmont is not in fact an employer in the construction industry and that the application has been improperly brought pursuant to the construction industry provisions of the Act.
The employer filed a list of employees containing eight names on Schedule "A" and two names on Schedule "D". The parties are agreed that the list of employees remains the same regardless of whether the Board finds as appropriate the construction industry bargaining unit proposed by the Labourers' Local 183 or the non-construction bargaining unit agreed to by the parties if Belmont is found not to be an employer in the construction industry. If the Board accepts the respondent's assertion that it is engaged in maintenance and not repair and is therefore not an employer in the construction industry, only one of the two employees listed on Schedule "D" would meet the Board's usual 30-30 day rule employed in non-construction certification applications and be included for purposes of the "count". The applicant filed membership evidence on behalf of each of the eight employees whose name appears on Schedule "A". It is clear therefore that the applicant is numerically entitled to be certified to represent the employees of Belmont regardless of which of the two alternate bargaining unit descriptions the Board finds appropriate.
We turn then to address the evidence and submissions of the parties with respect to the primary issue raised in these proceedings, namely whether Belmont operates a business in the construction industry as defined in section 1(1)(f) and is therefore an employer within section 117(c) of the Act, or whether its employees are engaged in maintenance (and not repair) so that Belmont's operations do not meet the definition of "construction industry" found in section 1(1)(f) of the Act.
We heard the evidence of Paul McGrath, Harry Nicholls, Devon Cooper and John Roberts. With the exception of Devon Cooper the witnesses were credible and offered their testimony in a candid and forthright manner. We found Mr. Cooper to be an unreliable witness. We found him to be argumentative~ non-responsive and evasive in cross-examination and motivated by self-interest throughout his testimony. As a result, where his evidence conflicts with the evidence of the other witnesses, the evidence of the other witnesses is preferred.
Belmont, as its full legal name would suggest, is a property management company involved in all aspects of property management including the day to day operation and maintenance of buildings and the financial and accounting services associated with that. Belmont is paid a management fee calculated as a percentage against revenue for providing these services. Any costs incurred are charged directly back to the owner(s) of the buildings. Belmont does not provide its services to "outside parties" rather it is the property management company which is engaged to manage buildings in which the principals of Belmont have a controlling ownership interest. Belmont manages approximately 55 to 60 commercial properties and residential high-rise apartments. Belmont employs persons who work as cleaners or superintendents of the buildings. It also employs persons engaged in what it terms as "maintenance" work which it defines as anything to do with the interior and exterior of the buildings, including the boiler equipment, mechanical equipment, plastering, plumbing, roofing, landscaping, asphalting, and work in the garages.
With respect to this "maintenance" work, Belmont engages two separate and distinct groups of employees. Both groups are ultimately supervised by Paul McGrath the maintenance supervisor at the company. One group of employees works exclusively in the garages while the other performs all of the other "general maintenance" work. We use the term "general maintenance" for ease of reference only and as a means of distinguishing the two groups of employees. This application deals only with the former group of "garage employees". We heard very little evidence about the work performed by the "general maintenance" group. The evidence we did hear indicates that there are approximately 15 persons employed in that group. Work performed by the "general maintenance" division of Belmont may be contracted out. On the other hand, outside contractors are not used extensively to perform work in the garages.
As part of its service Belmont routinely conducts an inspection of the buildings which it manages. On at least an annual basis, the principals and executives of Belmont, together with Mr. McGrath and the property manager of the particular site or building conduct a building inspection and walk through. The purpose of the walk through is to observe the state of the building and note any problems or potential problems. The walk through involves all interior and exterior parts of the building, including for example the hallways and garages. In addition, there are weekly maintenance and purchasing meetings at which decisions are made about what work is to be done and how that work is to be performed.
More specifically and with respect to the parking garages the group attending at the site walks through the garage noting problems or potential problem areas such as "delaminations" or "spalling". A delamination is a rupture or crack in the concrete that has developed because of corrosion. Snow and road salt from the cars will fall off the cars onto the concrete and work its way into the concrete and steel. Salt is corrosive to the steel. Pressure exerted on the concrete as a result of this corrosion from within causes the concrete to erupt or delaminate. Spalling is similar to delamination. It is generally caused by the freeze/thaw cycle which may cause cracked blocks or flaking of concrete. Mr. McGrath also referred to block laitenance, a problem which he likened to ''peeling paint''.
With respect to the garages, at the weekly maintenance and purchasing meeting decisions are made about where the work needs to be done, the urgency of the work to be done and the cost associated with the work. In determining what work is to be done cost is an important factor. Mr. McGrath stated in his evidence that "we try to do work before it becomes a major problem. In this way we can cut costs". Mr. McGrath indicated that safety was also a factor in determining work to be done. If a condition presents a hazard that work is prioritized accordingly. Finally, Mr. McGrath referred to the "urgency of the job itself'. He stated "If we find a crack that we know potentially in two or three years the wall or slab will collapse we will try to repair it now to save that.".
After a decision has been made at the weekly meeting about work to be done Mr. McGrath returns to the building site to prepare the job. To do that he marks red lines on problems areas to show "what sort of repairs [I'm] looking for and what I want to be removed and maintained.".
On the date of application the employees subject to this application for certification were working in the garages at two buildings referred to throughout this hearing as the "Gates of Bayview" site and "Carluke Crescent" site.
The Carluke site consisted of an underground parking garage in which employees worked on minor delaminations and other problems which could be rectified without major cost being incurred. Mr. McGrath testified that at the Carluke site we were "looking for cracks in the walls and in blocks, leakages, anything that could be repaired relatively easily.".
Work at the Carluke site performed by the employees involved taking out the loose mortar between blocks, removing and/or replacing blocks (some blocks were replaced with new blocks) and re-grouting these and other areas. All of this work was performed manually with the use of hammers, chisels, chipping hammers and fifteen pound jack hammers. The grouting involved the application of a hand mixed and hand trowelled cementitious product. While this work was performed those portions of the garage where employees were working were cordoned off and cars were prevented from parking in the area. The remainder of the garage however remained in operation.
The job at the Gates of Bayview was, in our view, significantly different. It involved what Mr. McGrath referred to as "slab delamination repair". It involved locating the problem and removing the top two or three inches of the concrete floor slab, preparing the patch and readying it for the pouring of new concrete.
Generally the area of the concrete slabs replaced was ten square feet or less. At the Gates of Bayview, however, there was at least one large area which consisted of 400 to 500 square feet. In total the top two or three inches of approximately 35 per cent of the garage was removed and re-poured with new concrete.
At the Gates of Bayview the removal of the top two or three inches of concrete slab was done by an outside contractor (Hydro Demolition Company). This contractor used a jet blaster to remove and/or break to pieces the concrete slabs. The contractor was engaged to expedite the job.
The employees of Belmont working at the Gates of Bayview job were involved in (a) removing from the garage the concrete which had been jet blasted; (b) cleaning up the surfaces jet blasted including miscellaneous chipping of the area and jack hammering the edges or areas missed by the jet blaster to ensure that the area was clean and ready for the concrete to be poured; (c) the pouring of new concrete. In addition and/or as part of this employees also looked for any additional delaminations or spalling, secured steel, cleaned or replaced rusty rebar (which causes delaminations), placed shoring or supports underneath the areas to be poured, and cut and placed plywood for the concrete pour. The Belmont employees performed the pour and all jobs associated with finishing the cement poured.
While the work was carried out portions of the garage were cordoned off. Cars were prevented from parking in those areas, although cars could continue to enter and exit the garage. At no time was the entire garage shut down. The witnesses estimated that anywhere from one-third to one-half of the garage was not used for the parking of cars while work was in progress. The cars displaced from the parking garage were either accommodated in other areas of the garage or alternatively at locations on the property outside the garage. The areas of the garage at which work was not carried out continued to be operational.
The work performed at both locations took a significant period of time which can be measured in terms of weeks rather than days. Mr. McGrath however testified that the work in the garages was never finished but was ongoing and is something that is "maintained all the time". As the work at one garage is completed employees are assigned work at another garage. As a result Belmont has never laid off any of its "garage" employees.
The question whether work is "maintenance" (which is not construction work) or "repair" may at times be as easily answered as the familiar question about how many angels can dance on the head of a pin. There is no clear demarcation line between maintenance work and repair/construction work. Maintenance is not defined in the Act yet both the Board in its decisions (see, for example, Tops Marina Motor Hotel, 64 CLLC ¶16,004, The Master Insulators of Ontario Inc., [1980] OLRB Rep. Oct. 1477, Inscan Contractors (Ontario), [1986] OLRB Rep. May 640 and the other cases cited herein) and the labour relations community itself (see, for example, the General Presidents' Maintenance Agreement) have long recognized and accepted a distinction between maintenance work and construction work.
In The Master Insulators, supra, the Board enunciated a test designed to give some definition to the task of distinguishing "maintenance" work from "repair" work. "Repair" work, by reason of section 1(1)(f) of the Act is work which falls within the construction industry. In the Master Insulators, supra, the Board stated at paragraphs 28 and 29:
With the exception of the work performed at the premises of Fearman and the work on a new emergency shower and minor work in a change house at Stelco, the work performed by the employers who were named in this complaint was essentially similar in nature. In our view, the work at the premises of Fearman, which involved an addition to an existing facility and involved both relocation of producing units and the expansion of existing capacity, was clearly new construction. Similarly, the work on the emergency shower and change house at Stelco was 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.
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]
Although the test enunciated in that decision is easily stated (and has long been accepted) it is often difficult to apply to the facts of any case. This is evident from the circumstances before us where both parties relied upon the Board's decision in The Master Insulators, supra, to support their respective positions. Counsel for the employer argued that application of the test leads to a conclusion that the work is maintenance. Counsel for the union argues application of the test points to a conclusion the work is repair and therefore construction. As the Board stated in Levert & Associates Contracting Inc., [1989] OLRB Rep. June 630, at paragraph 12 when referring to the difference between maintenance and construction "... what the parties see generally as being one or the other appears to be very much in the eye of the beholder ... the Board, of course~ must determine whether or not work characterized by a party as maintenance work is construction work for purposes of the Act, not for some more general purpose". In The Master Insulators, supra, a portion of the work was found to be construction while other parts of the work was found to be maintenance.
In addition to The Master Insulators, supra, counsel for the Labourers 183 relied upon the decisions of the Board in Keith Holdsworth Consulting Limited, [1989] OLRB Rep. June 619, Briecan Construction Limited, [1989] OLRB Rep. May 417 and Overhead Door Company of Toronto Limited, [1974] OLRB Rep. July 482. Placing particular emphasis on the decision in Keith Holdsworth, supra, a case also involving work in parking garages, and applying The Master Insulators test, counsel for Labourers Local 183 asserted that the purpose of the work was to "restore a system or part of a system which had ceased to function or function economically.". The parking garages where Belmont employees work suffer from water damage which is evident on the surfaces worked upon. Those damaged areas are marked with red spray paint. The crews perform work to restore those damaged areas, to restore the waterproofing capabilities of the concrete, and to restore the full functioning capacity of the parking garages.
On the other hand, counsel for Belmont relied upon The Master Insulators, supra, and Levert & Associates Contracting Inc., supra, in support of his position that the work involved was maintenance. Counsel distinguished Keith Holdsworth, supra, from the facts of this case. He submitted that unlike the company in Keith Holdsworth whose business consisted primarily of sealing cracks and fixing leaks in underground parking garages, Belmont is a property management company engaged in all aspects of the operation and maintenance of the buildings, including the financial and accounting services. Whereas the company in Keith Holdsworth, supra, was specifically engaged by property owners to fix the leaks in garages, Belmont's work in the garages is the result of an on-going relationship to maintain the buildings in which it holds a majority ownership interest. The buildings and garages are regularly inspected and work in the garages is part of an on-going, continuous program of maintenance. The garages continue to operate while the work is in progress. Work was not necessarily undertaken because the garage was leaking and needed to be "fixed" as was the case in Keith Holdsworth, supra, rather work was undertaken as part of the regular maintenance program and to prevent damage and deterioration.
We agree with the statements in each of the various Board decisions to which we were referred that, in applying the test enunciated in The Master Insulators, supra, the context in which the work takes place and the purpose of the work must be considered.
With that context and purpose in mind we have determined that the work performed by the employees at the Carluke Crescent site is, on balance, maintenance work. The garage was functioning fully prior to the work being undertaken. However, as the garage had certain problem areas it was decided to remove or reinforce those areas. The work was not an addition to the garage and was not for the purpose of increasing its capacity. The work was done for the purpose of avoiding major problems in the future which would then result in increased costs to repair. It was work done to assist in preserving the functioning of the parking garage, and not work done for the purpose of restoring a system which had ceased to function economically.
In our view, the facts as they relate to the Carluke Crescent site are distinguishable from Keith Holdsworth, supra. There is no evidence before us that there was any leakage at the Carluke Crescent site. This was not a situation where Belmont was attempting to restore the waterproofing capabilities of a concrete structure which was leaking. There wasn't any evidence that the parking garage system was so damaged that it needed to be "fixed". The waterproofing capabilities had not failed. The garage wasn't leaking. Rather, the work was patching and the replacement of a relatively small portion of concrete blocks (when viewed in context of the whole) undertaken as part of a regular and continuous preventative maintenance program designed for the primary purpose of sustaining and protecting an operating system to avert or preclude deterioration. The work was done to protect the structure from corrosion and thereby extend its useful life. Paraphrasing the language found in The Master Insulators, supra, the work was "timely maintenance [to forestall] or reduce the requirement for repair.".
On the other hand, we have determined that the work performed at the Gates of Bayview site is significantly different and is, on balance, repair or construction work. The work performed there went beyond timely maintenance to reduce the requirement for repair. Rather the lack of adequate maintenance produced a situation where approximately 35 per cent of the existing structure had to be repaired or re-surfaced.
Large amounts of the existing concrete had to be demolished, taken out and replaced with new concrete. On occasion, new rebar had to be tied. The demolition jet blaster work performed by the outside contractor falls within the definition of construction work found in section 1(1)(f) of the Act. The work undertaken by the Belmont employees was part of that work, an extension of that work. The pouring of new concrete and all the work necessarily incidental to that pour (jack hammering edges, cleaning rebar, tying new rebar etc.) was work done to make that part of the garage operational again and went beyond mere routine or simple maintenance work. (See, Quinard Limited, [1982] OLRB Rep. July 1054 at paragraph 9). As stated in The Master Insulators, "maintenance" and "repair" are not "mutually exclusive concepts". Although the resurfacing of approximately 35 per cent of the garage at the Gates of Bayview could be described as general maintenance to parts of the garage, we are of the view the work is more properly characterized as general repairs of a structure.
Belmont therefore is an employer which employs persons to perform both work which falls within the construction industry and work which does not. Where a person operates a business in the construction industry, (even if that business is only a part of the 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. (See, for example, Ridsdale Steel Fabricators Inc., [1987] OLRB Rep. Apr. 601 at paragraphs 9, 10 and 11.) Having regard to the totality of the evidence before us and the inferences which may reasonably be drawn from the evidence, we find that, on the date of application Belmont was an employer in the construction industry, engaged in construction activities, employing persons who fell within the definition of employee in section 117(b) of the Act.
We are satisfied that more than fifty-five per cent of the employees in the bargaining unit defined herein who were engaged in that construction work at the time the application was made, were members of the applicant on March 14, 1990, 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.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act.
The Board further finds that this application for certification does not relate to the industrial, commercial and institutional sector of the construction industry referred to in section 117(e) of the Labour Relations Act.
The Board further finds that all construction labourers in the employ of the respondent 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, constitute a unit of employees of the respondent appropriate for collective bargaining.
A certificate will issue to the applicant.