[1991] OLRB Rep. April 555
1500-88-R National Elevator & Escalator Association, Applicant v. International Union of Elevator Constructors and its Locals 50, 90 and 96, Respondents v. Canadian Elevator Contractors Association, Intervener
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.
APPEARANCES: Ross Dunsmore, Patty J. Murry and Guy W. Giorno for the applicant; B. Chercover, E. Shaw and P. Verrege for the respondent unions; Carl Peterson for the intervener.
DECISION OF THE BOARD; April 22, 1991
The name of the applicant is amended to: "National Elevator & Escalator Association". The name of the respondents is amended to: "International Union of Elevator Constructors and its Local Unions 50, 90, and 96".
This is an application for accreditation within the meaning of sections 125 through 127 of the Labour Relations Act. The applicant seeks to be accredited as the bargaining agent for certain employers in the residential sector of the construction industry in the province of Ontario which have a bargaining relationship with the respondents.
Pursuant to Letters Patent issued on April 6, 1977, the applicant is an Ontario Corporation without share capital. The applicant's Letters Patent and by-laws authorize it to (among other things) act on behalf of its members in collective bargaining matters. The applicant's status or ability to bring this application was not challenged. On the basis of the material before the Board, and for the purposes of this decision, the Board finds the applicant to be an employers' organization within the meaning of section 117(d) of the Labour Relations Act, and, further, that it is a properly constituted organization of employers within the meaning and for the purposes of section 127(3) of the Act.
The respondents are four separate trade unions within the meaning of section l(l)(p) and 117(f), and for the purposes of the Labour Relations Act. The three individual local unions are affiliated bargaining agents of the designated employee bargaining agency International Union of Elevator Constructors for purposes of collecting bargaining in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario. That designation applies only to the industrial, commercial and institutional sector, however. Further, it is doubtful that the respondents constitute a "council of trade unions" within the meaning of the Act (see the Ontario Erectors Association, [1971] OLRB Rep. Aug. 522). Nevertheless, for the purpose of this decision, we assume, without finding, that the four trade unions are appropriate respondents to this application.
The Board therefore assumes, for the purposes of this decision, that it has the jurisdiction to entertain this application.
The applicant filed the membership evidence on behalf of five employers. This evidence is in the form of identically worded individual letters. Each letter authorizes the applicant to represent the employer signing it as its bargaining agent and representative, and to bargain on its behalf with the respondents for a collective agreement pertaining to elevator construction in the residential sector of the construction industry in the Province of Ontario. Each letter also specifically supports this application. The applicant also filed a duly completed Form 88, Declaration Concerning Representation Documents Application For Accreditation, Construction Industry which attests the regularity and sufficiency of its documentary re representation evidence. The Board is satisfied that the applicant's evidence of representation complies with the requirements of sections 102 and 120 of the Board's Rules of Procedure. The Board is also satisfied that each of the individual employers on behalf of which the applicant the applicant has submitted membership evidence has vested appropriate authority in the applicant to enable it to discharge the responsibilities and accredited bargaining agent.
At a hearing held on April 18, 1990 with respect to this application, before a differently (in part) constituted panel of the Board, the parties agreed that the bargaining unit of this application is appropriately described in terms of the residential sector in the Province of Ontario. On the basis of the material before the Board, and having regard to the agreement of the parties, and notwithstanding that the International Union of Elevator Constructors is designated to represent "Journeymen and Apprentice Elevator Constructors" represented by its affiliated bargaining agents in bargaining in the industrial, commercial and institutional sector the Board finds, for the purposes of this decision, that all employers of elevator and escalator mechanics and their helpers for whom the respondents have bargaining rights in the residential sector of the construction industry in the Province of Ontario, constitute a unit of employers appropriate for collective bargaining.
In accordance of the Board's Rules of Procedure, a notice of this application was sent to thirty-two employers. Of these, ten failed to file a Form 94, Employer Filing, Application For Accreditation, Construction Industry or a Schedule H list of employees as required by the Board's Rules of Procedure. At the hearing on April 18, 1990, the list of employers in the unit of employers on the date the application was made who had had, within the one year period prior to the date of application, employees for whom the respondents have bargaining rights engaged in elevator construction work in the residential sector of the construction industry in the Province of Ontario (section 127(1) - Schedule E) consisted of, on the face of the material before the Board, thirteen employers. Of these, the applicant asserted that eight (Adco Elevator Service Ltd. ("Adco"), Canadian Escalator and Elevator Service Co. Ltd. ("Canadian Elevator"), Miro Elevators Limited ("Miro"), York Elevators Limited ("York"), APV Canada Inc. ("APV"), Capital Elevator Co. Ltd. ("Capital"), Televator Corporation Limited ("Televator"), and Valley Elevator Co. Ltd. ("Valley")) should not be included on Schedule E.
At the joint request of the parties, the panel before which they appeared on April 18, 1990, authorized the Labour Relations Officer to inquire into and report to the Board with respect to, among other things, the list of employers on Schedule E and the applicant's challenges thereto.
Subsequently, the applicant conceded that two of the employers it had challenged (APV and Canadian Elevator) were properly included on the Schedule E list of employers for the purposes of section 127(1) of the Act.
The Officer designated to conduct inquiry authorized by the Board did so and prepared a report to the Board with respect thereto, which report included a transcript of the evidence adduced before him. A copy of the report was provided to counsel for the various participating parties and a hearing was convened to hear the representations of the parties with respect thereto.
It was common ground that if three or more of the applicant's remaining challenges to the list of employers on Schedule E failed, its application would, having regard to the provisions of section 127(2) of the Act, also fail.
The applicant submitted that the work performed by Capital during the material time was not elevator construction work; that for the purpose of this application Valley was part of Westinghouse Canada Inc. Elevator Division ("Westinghouse"), already an employer on Schedule E; that Adco, Miro and Televator were not engaged in construction work at any material time; and, finally, that Adco and Miro had no "employees" engaged in elevator construction work in the residential sector at any material time.
The applicant referred the Board to Levert & Associates Contracting Inc., [1989] OLRB Rep. June 630, where, at paragraphs 12 to 15, the Board dealt with a question regarding whether certain work was in the construction industry or not as follows:
The Board has recognized a distinction between maintenance work and construction work since its decision in Tops Marina Motor Hotel, 64 CLLC ¶16,004, the first reported decision interpreting the definition of construction industry in what is now clause (f) of subsection 1(1) of the Act, even though the words maintenance or maintaining are not used in the definition or elsewhere in the Act. The problem always is to make the distinction in a particular fact situation because there is no clear demarcation between maintenance work and construction and, in the Board's experience, what the parties see generally as being one or the other appears to be very much in the eye of the beholder. See, for example, Kidd Creek Mines Ltd., [1984] OLRB Rep. Mar. 481, at paragraphs 46 and 47. The Board, of course, must determine whether or not work characterized by a party as maintenance work is construction work for purposes of the Act, not for some more general purpose. The Board's decision in Master insulators', supra, is the first reported decision which lends some definition to the task of distinguishing maintenance work which is not construction work from repair work which is.
The facts here are clear. The dissolving tank and the vapour pipe were functioning fully immediately prior to the shutdown. But, because they both had developed thin areas, it was decided, in the case of the tank, to reinforce those areas and, in the case of the pipe, to replace it because that was more economical than patching or cutting out and replacing the thin areas. The work was not an addition to the recovery and steam plant and was not for the purpose of increasing its production capacity. It was work done for the purpose of avoiding having the tank or pipe fail while the mill was operating. Clearly, it was work which would assist in preserving the functioning of the recovery and steam plant and it was not work done for the purpose of restoring a system which had ceased to function or function economically.
These facts distinguish this case from Inscan, supra, on which the applicant relies, where fire damage at a refinery stopped production for three weeks of a feedstock for lubricating oils. That process represented approximately ten per cent of the total product capacity of the refinery. The facts herein are much more analogous to those in Gallant Painting, supra, on which the respondent relies. In that case the Board found that the painting of "...pipes, tanks and other containers...", amongst other things, in two petrochemical plants, was work which ".. will preserve and protect the structures from corrosion and thereby extend their useful lives.". The patching of the tank and replacement of the vapour pipe served to extend the useful life of the recovery systems in the recovery and steam plant of the mill.
The fact that there were other contractors in the mill who may have been employing boilermakers pursuant to the boilermakers provincial agreement, an agreement which has application in the industrial, commercial and institutional sector of the construction industry, is of no assistance to the Board in this case. The question the Board must answer is whether the respondent was performing work in the construction industry and was an employer within the meaning of clause (c) of section 117 of the Act. That requires an analysis of the work which the respondent's employees were performing. There is no evidence that the work which they were doing had any connection whatsoever with the work being performed by the other contractors.
[emphasis added]
Counsel for the applicant urged the Board to conclude that insubstantial or "minor" work should not be characterized as construction work; that is, that not every correction of a malfunction in an elevator system constitutes construction work.
- Section 1(1)(f) of the Act defines the construction industry broadly for labour relations purposes:
1.-(l) 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;
The Board's decision in the Master Insulators Association of Ontario Inc., [1980] OLRB Rep. Oct. 1477 is probably the one most often referred to in cases in which the Board must determine whether a particular kind of work is in the construction industry or not. At paragraphs 22 to 24 and 27 to 29 of that decision, the Board offered an analysis which has become the corner-stone of the jurisprudence on this question:
However, the Board, since the introduction of the construction industry provisions into the Act in 1962 in The Labour Relations Amendment Act, 1961-62, SO. 1961-62, c.68, has regarded maintenance as not included in the definition of "construction industry" in section 1(1)(f). For example, in the Tops Marina Motor Hotel, case, 64 CLLC ¶16,004, an application for certification was held to be properly made under the construction industry provisions of the Act. In that case the Board, in determining an appropriate bargaining unit of carpenters and carpenters' apprentices, stated that it was not its intention to include in that bargaining unit carpenters who might subsequently be employed to do ordinary maintenance work once the motor hotel was in operation. In the Dravo of Canada Ltd. case, [1967] OLRB Rep. June 261, the Board distinguished between an employer's maintenance operations and its construction operations and in The Board of Governors of The University of Western Ontario, case, [1970] OLRB Rep. Oct. 776, the Board determined that the employer was not operating a business in the construction industry because the employees who were the subject of an application for certification were engaged in maintenance rather than repair. In the Overhead Door Co. of Toronto Ltd. case, [1974] OLRB Rep. July 482, the Board examined the business of an employer who was engaged in the sale, distribution, installation, maintenance and warranty of various types of wood and metal doors and concluded that whether "maintenance" is to be considered as part of "construction industry" depends on the type of "maintenance" being performed and on the context of a given employer's operations.
The evidence before the Board established that insulators use the same tools, apply the same insulation and exercise the same skills whether the work is clearly new construction, which was agreed by all of the parties to be included within the definition of "construction industry" in section 1(l)(f) of the Act, or is described as either "maintenance" or "repair". Indeed, the line of demarcation between "maintenance" and "repair" is not a sharp one. On more than one occasion witnesses who were unable to define either "maintenance" or "construction" expressed confidence that they knew "maintenance" and "construction" (and, therefore, "repair") when they saw it.
Almost all of the work upon which this complaint is based involved applying insulation in order to maintain or sustain a system that was either producing or capable of producing a product according to its design. In some instances the system or portion of a system was actually functioning during the removal or application of insulation. In other instances a system or portion of a system was briefly closed down or advantage was taken of periodic or annual shutdowns in order to remove or apply insulation.
The complainant referred to numerous legal authorities in its argument and its word by word analysis of section 1(1)(f). These authorities were drawn from many jurisdictions and concerned the interpretation of "constructing", "altering", "repairing", "demolishing", and "revamping" in contracts and legislation in a wide variety of contexts. However, the Board found none of these authorities to be persuasive. The authorities cited before the Board under scored [sic] the necessity of considering the context in which a word is used in order to interpret its meaning.
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 compliant 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 it 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 1341a(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 either 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]
As is evident from the Master Insulators, supra, case and the Board's subsequent jurisprudence, there is no clear distinction between construction and non-construction work. It is particularly difficult to draw a distinction between "repair" work, which is construction work, and "maintenance" work, which is not (see, for example, Levert & Associates Contracting Inc., supra, Briecan Const. Limited, [1989] OLRB Rep. May 417, Inscan Contractors (Ontario) Inc., [1986] OLRB Rep. May 640, Kidd Creek Mines Ltd., [1984] OLRB Rep. March 481, Quinard Limited, [1982] OLRB Rep. July 1054). Whether something is repair or maintenance work will depend upon the nature and purpose of the work in question in the context of the facility or system in or to which the work is being performed. Generally, work performed on existing equipment in an existing facility for the purpose of keeping the facility or a system in it operating properly before the facility or system has ceased to do so, is appropriately characterized as maintenance work. On the other hand, work involving the addition to or replacement of equipment for the purpose of either increasing the capacity of the facility or system, or restoring the ability of a facility of system to function properly, is appropriately characterized as repair work. The amount, apparent significance, or value of the work in question may be part of the context in which the assessment is properly made but are in no way determinative of the question. Similarly, whether a facility or system is shut down while the work in question is being performed may also be relevant, but will not be determinative.
It was not disputed that Capital and Valley were engaged in construction work in the residential sector of the construction industry in the province of Ontario during the material times. However, the applicant argued that Capital was not engaged in elevator construction work and that Valley provided only labour to another employer in the bargaining unit (Westinghouse), so that the latter was the true employer, not Valley. Accordingly, submitted the applicant, Capital and Valley should not be included on the list of employee in the bargaining unit for purposes of the determination which the Board must make under section 127(1) and (2) of the Act.
During the material times, Capital installed small lifts and elevators in private residences, replaced some water damaged elevator buffer channels in passenger elevators in a condominium building, and removed existing lighting and installed new lighting and drop ceilings in passenger elevators in another condominium building.
Section 1(g) of the Elevating Devices Act defines an "elevating device" as:
a non-portable device for hoisting lowering or moving persons or freight, and includes an elevator, dumbwaiter, escalator, moving walk, manlift, passenger ropeway, incline lift, construction hoist, stage lift, platform lift and stairway lift as defined in the regulations;
Notwithstanding that the Elevating Devices Act does not apply to elevating devices in or in connection with private dwelling houses used exclusively by the occupants and their guests unless the owner of the device so requests (section 2(a)), it is clear that Capital was engaged in installing what are undoubtedly elevating devices. The fact that a particular elevating device is not regulated by the Elevating Devices Act does not mean either that it is not an elevating device or that the installing one is not elevator construction. On the contrary, we are satisfied that the installation of any elevating device constitutes elevator construction work within the meaning of the Labour Relations Act and for the purposes of this application. In addition, we are satisfied that replacing the water damaged buffer channels constituted a repair work and it was therefore construction work within the meaning of the Act. We are therefore satisfied that Capital is properly included on the Schedule E list of employers.
In our view, the work done by Valley for Westinghouse was performed on a sub-contract basis. Westinghouse provided the elevator "materials" and Valley supplied the labour, tools and equipment to install them. The individuals who perform this elevator construction work were brought to the job site, supervised and paid by Valley, and we are satisfied that they were employees of Valley. We are also satisfied that Westinghouse exercised only that control over Valley which any general contractor exercises over a sub-contractor in the construction industry. We are therefore satisfied that Valley should also be included on the Schedule E list of employers.
The applicant argued that, during the material times, Televator was engaged in only minor maintenance work and that York's work, although more extensive, was also maintenance.
Among other things, Televator replaced a door operator motor and belts, installed new safety edge switches, removed defective door locks and installed new ones, and replaced a governor tension wheel. This work was performed in the residential sector of the construction industry in the Province of Ontario during the material times. The respective elevators on which this work was performed could not be operated, either at all in the case of the first three examples, and not safely in the case of the last example. We are satisfied that this was repair work and that it constitutes elevator construction work for the purpose of this application. Televator therefore is properly included on the Schedule E list of employers as well.
Similarly, York should also be included on Schedule E. The work that it was engaged in during the material times in the residential sector of the construction industry in the Province of Ontario included dismantling and removing malfunctioning controllers and installing new programmable controllers, replacing old door operators and interlocks with new ones, installing new door equipment (including clutches, hanger rollers and hangers), replacing damaged safety edges and adding safety edges where there had not been any, replacing hoisting equipment (including some hoisting cables), replacing worm gear and adding safety retainer gibs on elevators which did not previously have them. In our view, this was construction work.
With the inclusion of Capital, Valley, Televator, and York, there are eleven employers on Schedule E. The applicant filed representation evidence with respect to only five of these employers. Having regard to the provisions of section 127(2) of the Labour Relations Act, its application can therefore not succeed. We therefore find it unnecessary to deal with the applicant's challenges to Adco or Miro.
This application is dismissed.