International Union of Operating Engineers, Local 793 v. Port Weller Dry Docks
[1991] OLRB Rep. September 1090
3458-90-R International Union of Operating Engineers, Local 793, Applicant v. Port Weller Dry Docks, A division of Canadian Ship Building and Engineering Ltd., Respondent v. International Brotherhood of Boilermakers Local 680, Intervener #1 v. I.B.E.W. Local Union 303, Intervener #2
BEFORE: Robert Herman, Vice-Chair, and Board Members W. N. Fraser and C. A. Ballentine.
APPEARANCES: Jack J. Slaughter, James Anderson, Glyn AlIman, Matt Kellway for the applicant; Robert Goheen for the respondent; James Hayes, Michael Blazer, David Brown and Michael Simons for the intervener.
DECISION OF THE BOARD; September 9, 1991
This is an application for certification pursuant to the construction industry provisions of the Labour Relations Act.
The applicant Operating Engineers seeks its traditional craft bargaining unit in this displacement certification application. In support of its request, that it not be required to apply for the existing bargaining unit, the applicant asserts that the respondent is engaged in operating a business in the construction industry, and therefore the applicant is entitled to its traditional construction industry bargaining unit. The intervener, Boilermakers Local 680, has long had a bargaining relationship with the respondent employer, and pursuant to a series of collective agreements has represented, with some exceptions, an "all employee" bargaining unit.
The parties agreed on the facts with respect to the issue of whether the respondent operates a business in the construction industry. Simply put, the respondent is in the business of building and repairing ships in dry dock. It uses a work force consisting of numerous trades, including licenced hoisting engineers who operate the gantry and mobile cranes. The licenced engineers do not operate the other cranes utilized in the respondent's business.
The applicant submitted that the business of the respondent falls within the meaning of the definition of "construction industry" in the Act, and further, that a recent amendment to the Occupational Health and Safety Act (Bill 208, Chapter 7, Statutes of Ontario, 1990, section 1(6)) supports the view that shipbuilding is now "construction" within the meaning of the Labour Relations Act. More specifically, the amendment to the Occupational Health and Safety Act indicates that for purposes of that Act and its regulations, a ship being manufactured or under repair is deemed to be a "project". A "project" is defined in that Act as a construction project. The applicant submits that this indicates a legislative intention that, for purposes of the Labour Relations Act as well, shipbuilding is considered part of the construction industry.
The Board orally ruled that the respondent was not engaged in a business in the construction industry. Notwithstanding the recent amendments to the Occupational Health and Safety Act, the Board's task was still to determine (where appropriate) the meaning of "construction industry", and other relevant provisions, within the meaning of the Labour Relations Act, and to determine whether a particular business was a business in the construction industry under the Labour Relations Act. The Board was satisfied that the business of repairing or building ships in dry docks does not constitute a business in the construction industry. If it were otherwise, then the operation of cranes with respect to numerous industrial endeavours would also constitute construction industry work; for example, on the applicant's argument, the operation of cranes to move materials used to build automobiles would also constitute a construction industry business. We did not find that such activity makes this construction work. The Board therefore ruled that the work in question was not construction industry work.
In light of the Board's ruling, the applicant sought leave to withdraw its application. This application is accordingly withdrawn with leave.