Ironworkers District Council of Ontario v. Canadian Communications Structures Inc., 1992 CanLII 6319

[1992] OLRB Rep. July 777

1408-91-R; 1496-91-U Ironworkers District Council of Ontario, Applicant v. Canadian Communications Structures Inc., Respondent; International Association of Bridge, Structural and Ornamental Ironworkers, Local 721, Complainant v. Canadian Communications Structures Inc., Respondent

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members J. Trim and C. McDonald.

APPEARANCES: Bertha Greenstein for the applicant; Thomas Ward for the respondent. [Messrs. Green and Geiger appeared for the applicant and respondent, respectively on the first day of hearing].

DECISION OF THE BOARD; July 14, 1992

1. This is an application for certification and a related complaint under section 91 of the Act. These reasons deal only with the constitutional question raised by the respondent in its reply. The parties wished the constitutional question to be dealt with before the issue of whether the work in question is properly considered construction under the Act. The employer takes the posi­tion that its operations are integrally related to those of Bell Cellular and Cantel, both agreed to be federal works or undertakings and subject to federal jurisdiction in matters of labour relations. The applicant takes the position that the respondent is engaged in the erection and maintenance of steel structures and is properly governed by provincial law. The Attorneys General of Canada and Ontario were advised of the constitutional question, but neither wished to intervene.

2. The following findings of fact are made on the basis of the evidence of the following wit­nesses: for the employer, Jeffrey Sopik, President of the respondent, known as CCSI, and Reimer Riske, a construction co-ordinator for Bell Cellular, and for the union, John Burke, CCSI's Rig­ging Supervisor. As will be seen below, the evidence is essentially not in dispute, but its character­ization is very different depending on the parties' differing points of view, both literal and figura­tive.

3. CCSI installs, tests, maintains and services antennae for cellular phone systems. To date, this has been exclusively for two clients, Bell Cellular and Cantel, predominantly the former. CCSI's niche in the market appears to have two main roots. First is the experience in cellular tech­nology of its president and founder, Jeff Sopik, who is a professional engineer with a background in radio system design. Immediately prior to setting up CCSI in mid-1990, he worked for Bell Cel­lular evaluating its technology and in the design and implementation of microwave radio connec­tions to expand its cellular network in Ontario and Quebec. The second root is its employees' abil­ity to erect and climb the structures necessary to support cellular phone antennae. The dispute before us is in sum, a split on which of these two aspects of the operation is dominant for constitu­tional purposes. The parties are agreed that once in place, the structures supplied by CCSI are integral parts of a federal operation and that if the cellular phone companies performed the work done by CCSI themselves, it would be part of the federal operation as well.

4. Except for CCSI's first microwave project which involved improving the cellular system between Ottawa and Meech Lake, Quebec, all of CCSI's work to date has been in Ontario. The work done in Quebec was done after the application date but the Board decided that for matters of constitutional jurisdiction it was appropriate to hear the evidence about this project. In any event, the respondent does not base its case on an argument that CCSI is an interprovincial operation, but rather that it is integral to the cellular phone companies' operations, which are interprovincial.

5. Although the structures which CCSI erects and installs could have applications for cli­ents other than cellular phone companies, including clients who would be within provincial juris­diction, there is no evidence before us that CCSI has done, or intends to do such projects.

6. Reduced to its very basics, a cellular phone network combines radio transmission and traditional phone systems to allow customers to have mobile phone service. It does this through a system of fixed radio relay sites. Each of these is equipped with radio equipment in a shelter (a radio shack), transmission lines and antennae. Each antenna grouping allows phone communica­tions in a certain area, or cell. The antennae receive signals from, and send signals to, mobile phones operated by customers of the cellular phone companies. When a signal is received by an antenna, it is relayed through cable to a receiver which makes sense of it and allocates it by com­puter to a channel by which it can communicate to the fixed ("land") phone system by microwave, fibre optics or hard cable. If a call comes in for a mobile phone, the system sends out a signal to which the mobile unit can respond.

7. Cellular phone antennae are to be found on roof tops, poles, or towers of several varie­ties, depending on a number of factors including topography, cost and the wishes of the owner of the land on which the cellular site is to be located. Their support structures range in height from three feet on rooftops to upwards of 160 feet for certain towers. The location and tilt of each antenna precisely determines its geographical coverage, and is a matter decided by each cellular phone company. For internal reasons, neither Bell Cellular nor Cantel install their own antennae. For instance, Bell Cellular employees are not allowed to climb heights, and that is one reason the work is contracted out to companies such as CCSI. As Bell Cellular's Reimer Riske testified, they also employ contractors who do not need to be told how to get the towers up.

8. The specifications from the client are extremely detailed and require high quality per­formance because of the sensitive nature of the transmission system and its exposure to weather on a constant basis. CCSI is one of 3 qualified, pre-approved contractors who are invited to tender on Bell Cellular projects and one of seven who tender for Cantel. CCSI is not more important than any of the other similar companies to Bell Cellular. The client phone company makes all the deci­sions about what cell sites are to be worked on and what work is to be done on them, by what date. However, CCSI has made suggestions as to different ways to do things to the client which have been accepted. Normally those bidding will have a site visit before submitting the bid. With Bell Cellular, CCSI has attended "post-mortem" meetings after projects to give input as to better ways to do things.

9. Many projects require co-ordination with the phone company and/or sub-contractors to do work that is not within CCSI's tender or expertise. For example, a phone company contractor removed a drywall box on one project so CCSI employees could rearrange transmission cable. On other projects, CCSI sub-contracts roofing work made necessary by work on antenna mounts or foundation work to support towers. In the past it did some of this type work itself. Often the sub­contractor will be designated or approved by the phone company or the landowner. CCSI also sub­contracts with crane operators when necessary to lift tower parts into place. Prior to getting their own testing equipment, CCSI subcontracted for line testing equipment, although its personnel did troubleshooting and interpretation of the test results. Since mid-1991, CCSI has done all its own testing. On some sites, there will also be other contractors on site engaged by the phone company to do other necessary work, such as erecting or enlarging an equipment shelter, building roads, fences or installing hydro service.

10. A very large quantity of the work done by the employees in the bargaining unit affected by this application is the real "nuts and bolts" work of putting up structures. This can involve pour­ing concrete, creating a load-worthy foundation, digging ditches, and does involve bolting steel together (or unbolting it), climbing it and rigging it with cable and steel antennae mounts. It also often involves lugging or hoisting steel to roof tops or other structures. Although as much rigging as possible is done on the ground, it can take a three or four person crew anywhere from six hours to 4 days to get material to the top, depending on what difficulties are encountered. Rigging a 200 foot tower with cable requires a clip every meter - a full days work for three or four men. Putting the cable connectors together involves precision soldering. Other than the employee who is actu­ally operating the testing equipment, even testing involves physically manipulating antennae and dealing with weatherproofing tape. The employees in the desired bargaining unit do not have extensive training on the testing equipment, although some have attended a one-day seminar.

11. John Burke, who testified for the union, and described himself as a rigging supervisor, was a communication specialist for the Armed Services and has worked in microwave installations since for civilian industry. His training in the military involved antenna systems and installation of lines, connectors and how they should be made, problems on sweeps (line testing) and transmis­sion lines. He was clear that it is very important for employees to be very careful with cable because of its function. He said the most important part of the job is the metal connectors on the cable, to provide continuity to make proper connection so the signal is not interfered with. He con­siders his specialty to be structures — how to get something up to support something.

12. Each cellular phone company is allocated a fixed number of radio channels by the fed­eral Department of Communications. In high density use areas like Toronto and Montreal, a tech­nique known as sectorization can be used to multiply the capacity of each channel to handle calls. This involves splitting the 360 degree coverage cell into smaller sectors, each with its own antennae so that it can operate as its own cell site. Sectorization services are one of the specialties of CCSI, and one of its arguments for federal jurisdiction. Accordingly, there was detailed evidence of its role in this process, which it is appropriate to summarize here.

13. Since no revenue is generated when customers can not make phone calls, as much pre­paratory work for the sectorization as possible is done while the system is still operational. Access to the sites for this purpose has to be arranged through the cellular phone company, who often has a roof-top lease arrangement with the landowner with restricted access. Typically CCSI employees are involved in positioning antennae and their mounts, laying cable and arranging for any neces­sary roofing work while the system is still operational. Much of the equipment is supplied by the phone company, such as the cable, although arrangements with phone company personnel are often made for CCSI to supply or pick up material of various kinds. Much of the advance work is done in the absence of Bell personnel.

14. On a designated cut-over day, often Saturday since it is a low use day, service will be cut for the affected cell site by phone company employees. CCSI personnel will be available to change or reposition antennae, reconnect and seal transmission lines and test the connections between the lines and the antennae. Positioning the antennae involves obtaining the right vertical tilt and horizontal location. This is done by CCSI personnel using compass, protractor and detailed topographical maps to get the directional positioning right. Each antenna's position is checked by a phone company technician. Personnel from the cellular phone company are also present to rear­range equipment inside the radio shack and connect the transmission lines readied by CCSI to the radio equipment itself and to approve the work done by CCSI once CCSI has tested the antenna and transmission line system. Testing is done with equipment which simulates a phone signal and indicates if there is any problem in the transmission line. Although CCSI now has its own test equipment, phone company test equipment is often used as well, and test results are usually checked by the phone company's technicians. Once the testing is done, cables are labelled under the active supervision of phone company employees to ensure that the right antenna is attached to the right radio equipment. The phone company technician must sign off CCSI's work before they are free to go. CCSI employees wait for the phone company employees to do a coverage check with the system operational locally before they leave. During this check they may be asked to reposition antennae. They are then on call to rectify any problems that occur thereafter.

15. CCSI is responsible to hand over an antenna system which is capable of functioning, which includes for Bell Cellular, printed test results to Bell Cellular's specifications. CCSI's responsibility ends at the jumper going into the radio shelter. CCSI employees leave 5 feet of cable in the shelter for Bell employees to connect. Bell then does its own testing. Changes to software and hardware are also made in the main switch of the phone company by its own personnel. CCSI personnel do no work on the phone companies' radio or computer equipment. (Nor do they do any work directly for the phone companies' customers.)

16. The other main services provided by CCSI to the cellular phone companies are new installations of roof-top or tower structures to support antennae or microwave dishes and mainte­nance on existing installations. For the year 1991, the only full calendar year of CCSI's operation, approximately 50% of CCSI's work was referred to as maintenance. The rest was a combination of new site installation, sectorization or microwave installation.

17. In the category of preventative maintenance was a year-long contract CCSI had with Bell Cellular to inspect, inventory and report on each of 254 cell sites as to the structural integrity and condition of the supporting structures, antennae, safety equipment and property. This involved climbing whatever structures were involved, identifying antennae and testing things like torque on bolts and guy wire tension. Minor repairs such as minor rustproofing, adjusting non-mi­crowave guy-wire tension, replacing worn tape and light bulbs were done on the spot. Other work brought to light by the inspections was tendered, some of which CCSI has since contracted to do. The reports categorized the work needed by order of urgency based on whether it affected safety or not. The inventory, inspection and minor repair work is done while the system is operational, and does not involve interruption of service.

18. Other work was referred to by the respondent as demand maintenance, for instance where a problem has been picked up by the cellular phone company or its customers, but has not been diagnosed. A problem anywhere in the system can affect the whole system and cause revenue loss because of the interconnectedness of the whole system, the reuse of frequencies and the over­lap of coverage areas. CCSI employees have been asked to "troubleshoot", i.e. work on the trans­mission line and antenna system to isolate the problem, which will often be interference in trans­mission because of a problem with a connector caused by weather or a problem with the tilt of the antenna. On these occasions, a phone company technician will be there in the equipment shelter, giving instructions. The antenna being worked on has to be removed from service, as well as con­nected to the testing system from inside the equipment shelter, which a Bell employee does.

19. New installations involve the erection of appropriate structures to support the cable running from the radio shelter to the antenna and the antenna itself. On roof tops, this involves antennae mounts about 3 feet high, but in other locations, it involves erecting 120 foot steel mono­poles or 160 foot aesthetic towers. CCSI supplies the tower, but the Bell Cellular provisions manager may pick where to buy it from by tender. Sopik estimated for a monopole installation that 10 percent of the 500 man hours budgeted would be involved in the actual erection of the pole. The rest of the time would involve attaching cable and antennae.

20. Burke testified that CCSI determines hours of work and he takes his work instructions from CCSI.

The Parties' Argument

21. For ease of reference, we set out in approximate chronological order the cases filed and referred to by both counsel in argument, the citations of which will not be repeated below:

Letter Carriers' Union of Canada v. Canadian Union of Postal Workers

(1973), 1973 CanLII 183 (SCC), 40 D.L.R. (3d) 105 (S.C.C).

Butler Aviation of Canada Limited v. International Association of Machinists, 1975 CanLII 2241 (FCA), [1975] F.C. 590 (F.C.A.).

Northern Telecom Ltd. v. Communications Workers of Canada (1979), 1979 CanLII 3 (SCC), 98 D.L.R. (3d) 1 (S.C.C.) (referred to as Northern Telecom I). Construction Montcalm Inc. v. The Minimum Wage Commission et. al., 1978 CanLII 18 (SCC), [1979] 1 S.C.R. 754 (S.C.C.).

Northern Telecom Canada limited et al. v. Communications Workers of Canada et al.,1983 CanLII 25 (SCC), [1983]1 S.C.R. 733 (S.C.C.) (referred to as Northern Tele­com II).

W. Rourke Ltd.,[1983] OLRB Rep. Oct. 1711.

Canadian Telecommunications Group, [1985] OLRB Rep. February 182.

Re Bernshine Mobile Maintenance Ltd. and Canada Labour Relations Board

(1985) 1985 CanLII 5507 (FCA), 22 D.L.R. (4th) 748. (F.C.A.).

Re Canada Labour Code (1986), 1986 CanLII 3986 (FCA), 34 D.L.R. (4th) 228 (F.C.A.).

Re Ontario Energy Board and Consumers' Gas Co. et. al. (1987), 1987 CanLII 4400 (ON HCJ), 59 O.R. (2d) 766 (C.A.).

Waschuk Pipeline Construction Ltd. v. General Teamsters Local 362, (1988), 1988 CanLII 3526 (AB QB), 62 Alta L.R. (2d) 318 (Alta. Q.B.).

IUOE, Local 793 v. Peter Kiewit Sons Co. Ltd., [1988] OLRB Rep. May

LIU, Local 607 v. Vibration Assessment Limited, (1989] OLRB Rep. Feb.

The following is a very brief account of the salient points of both counsel's able argument.

22. For the respondent, Mr. Ward, following Mr. Justice Dickson's opinion in Northern Telecom I, described the federal core undertaking as the transmission of cellular phone services throughout the country and CCSI's work as the installation, upgrading, maintenance and repair of cellular transmission systems. Counsel says that the common thread in all CCSI work is that they are working on the cellular phone antenna system, an essential element to the functioning of the cellular phone system.

23. Employer counsel relies principally on the two Northern Telecom decisions, and asserts that the facts of this case are practically on "all fours" with Northern Telecom II. He argues that CCSI is even more involved than the Northern Telecom installers, who did no maintenance. He cites the continual give and take between CCSI and Bell Cellular. Referring to the Letter Carriers casey he notes that the truck drivers in that case were doing 90 percent federal work and were determined to be in federal jurisdiction; here CCSI does 100 percent work for a federal operation. Counsel observes that in Butler Aviation, servicing a federal aviation operation was sufficient to be deemed federal. Counsel distinguishes the Construction Montcalm case on the basis of the lack of continuity and regularity of contact with the federal work in that case, which is present for CCSI. In distinguishing the Canadian Telecommunications Group, he said that the proper distinction is work for customers, which Bell Canada could live with or without. He analogized it to a company who installed mobile phones in cars.

24. The union starts with the proposition that the onus is on the respondent to demonstrate that there is a reason why the prima facie provincial labour relations jurisdiction should not apply. Ms. Greenstein posits the question in the following manner: Can the province regulate this com­pany without interfering in the operation of Bell Cellular as a federal undertaking? She says that it is absolutely clear that it could. It would have no effect at all. There is no direction of CCSI as to day-to-day conditions of employment.

25. Although the union does not dispute that the antenna system is essential to Bell, it dis­putes the idea that CCSI as a company is integral to its operations, making a distinction between the work done and the end use. Counsel suggests the appropriate analogy is putting up an addition to a Bell Cellular building. Once it is up and running it will be federal, but the construction com­pany would not need to be considered federal. Counsel asserts that the new site and sectorization work is all construction or manufacturing. The dominant work here is putting up towers - straight construction of structural steel. Further, counsel argues that this is work of a temporary nature. CCSI goes in and gets out, much more like Construction Montcalm in that respect. Further CCSI makes none of the decisions as to location, or similar matters, that the court found could have made the work there federal. The mode of construction is within provincial jurisdiction, and that is what CCSI does. The union attaches a lot of importance to the fact that Bell Cellular people are prohibited from doing the work that CCSI does because of the climbing involved.

26. Counsel says the major distinction with the Northern Telecom, Butler Aviation, and Letter Carriers cases, is the extent to which the CCSI employees work in isolation. Counsel sug­gests that the only time the two groups of employees work together is cutover day. Most impor­tantly, the union says there is no operational connection between the two, and therefore the facts fail the criterion cited as most important in a number of the judgements. The Northern Telecom installers, in the union's submission, participated much more directly in Bell's operations, includ­ing having the authority to "busy out", which is equivalent to cutting service.

27. Counsel underlines that provincial regulation is valid on a federal undertaking as long as it reaches the federal undertaking on a valid provincial subject. She cites this case as analogous to the quirk of constitutional law cited in Re Canada Labour Code, whereby there is a certain class of work that if done by the core federal undertaking would be federal, but if done by a separate sub­sidiary operation is properly considered provincial. Citing the Ontario Energy Board and Consum­ers' Gas Co. case, counsel stresses that it is not the importance of Bell Cellular to CCSI that is at issue here, but how important CCSI is to Bell. Counsel finds the Vibration Assessment Limited case conceptually similar to the facts before us. The work in that case was incidental to construc­tion, not to Bell's federal undertaking, and thus was provincial.

28. Put most simply, the union argues that building a tower is provincial. The attachment of an antenna to it does not make it federal. The antennae are incidental to the work CCSI employees do as illustrated by the fact that they could be building lighting towers for municipalities. Finding this work to be in federal jurisdiction could create an odd mix of jurisdiction if CCSI does take on other work.

29. As to the maintenance work, union counsel suggests that it is Bell Cellular, not CCSI, who is maintaining the system. It does all the diagnosing of problems. The contractor is called in to climb and do the physical work. She suggests that the Northern Telecom installers were much more like the Bell Cellular radio technicians, doing ongoing diagnosis of the system. As to the maintenance contract, she says the purpose is to update information and inventory, and inspect structural integrity of sites, rather than actually working on the system. Changing light bulbs and grounding straps is incidental, and not enough to characterize the work in the union's view.

30. The union suggests that Bell Cellular has divided the work this way: We'll do the techni­cal work and testing, people who know how to climb and build can do the rest of the work. She says the timing of the work and the need for quality is no different than any construction where things have to happen in a sequence, and work has to be done to proper standard. CCSI is on their own as to how to get the work done correctly and on time.

Decision

31. The basic principles in this area of constitutional law may be briefly stated; their detailed development can be found in the cases cited above. Labour relations are primarily in pro­vincial jurisdiction. However, if the work is within a federal undertaking, or an integral part of one, labour relations will be within federal jurisdiction, since they are considered essential to the management of the undertaking. Where the operation is not the core federal undertaking, but an enterprise in some relation to the core federal undertaking, it is necessary to consider the nature of the relationship between the two, as a going concern, without reliance on microscopic distinctions, exceptional or casual factors, or the structures of corporate relationships, to determine whether the subordinate operation is necessary or integral to the core undertaking. The degree of integration is a factual call. Although there has been some commentary questioning the necessity for labour rela­tions to be federal because of a close relationship to a federal core undertaking, the law as it now stands is that the jurisdiction over labour relations will follow the constitutional characterization of the operation. See the cases cited above and more recently, Bell Canada v. Quebec (C.S.S.T) 1988 CanLII 83 (SCC), [1988] 1 S.C.R. 897 and the Court of Appeal decision in Ontario Hydro, [1991] OLRB Rep. Jan. 115.

32. As the Supreme Court of Canada's Northern Telecom decisions set out, the necessary inquiry can be conveniently done according to the following headings:

The general nature of CCSI's operation as a going concern.

CCSI provides a variety of services exclusively to cellular phone companies. Although it is rela­tively new, and there is no certainty about what work it will do in the future, there is consistency to date on the focus on cellular phone transmission systems, their installation, maintenance and the erection of the necessary structures for their support. This includes the physical work necessary to that end. Although the employees build towers and climb them, the purpose of that is for use in the cellular phone system. CCSI is not, as a going concern, primarily a supplier of towers per se. It is, in part, an installer of cellular phone transmission systems and may supply the towers necessary to that end.

33. The nature of the corporate relationship between CCSI and the companies that it serves, notably Bell Cellular.

There is no corporate relationship between CCSI and its customers. The case law makes clear that this is not determinative. Subcontracting of work is not necessarily an indication that the work is not essential.

34. The importance of the work done by CCSI for the cellular phone companies as compared with other customers.

There are no other customers. The work for the cellular phone companies is clearly the raison d' tre of the enterprise, and neither a casual nor an exceptional factor.

35. The physical and operational connection between CCSI and the core federal undertaking, in particular the extent of the involvement of CCSI in the operation and institution of the federal undertaking as an operating system.

To start, it is important to be clear on how we view the term "operating system". The term cannot mean that the inquiry depends solely on the role of CCSI when the system is actually delivering calls to customers, which was how some of the discussion at the hearing appeared to categorize it. Otherwise, this would lead, for instance, to the result that the decisions such as where to put an antenna which is not yet in operation was not part of the core federal undertaking, when both par­ties agree that it would be. It is clear that the Supreme Court of Canada in Northern Telecom II, and the cases that precede it, was looking at this factor in the sense of the ensemble of the day to day operations of the core federal undertaking, and not just whether the system was "on" or "off'.

36. Viewed in this light, we find extensive physical and operational connection between the two, to the extent that CCSI's function is, in our view, integral to that of the undertakings of the cellular phone companies it services. The antenna and cable portion of the cellular phone system is agreed to be essential to the system and integral to it once installed. CCSI has regular contact with that system in a number of roles: installation, manipulation, testing, replacing, inspecting, always on the phone companies' sites. Although much of the work, preparatory and maintenance, is done in the absence of Bell Cellular personnel, it is all done to the detailed specifications of the cellular phone companies. Those aspects most directly relating to the transmission system are done under Bell Cellular's direct supervision. Thus, on the fourth criterion, we find the evidence to support federal jurisdiction. None of the other three detracts from this support.

37. To acknowledge that the location of these antennae requires elaborate support struc­tures, which must be built and climbed, is not to make the purpose of the exercise any different. To acknowledge that from the point of view of the employee climbing steel at 150 feet, this project may seem like any tower erection project, does not answer the crucial constitutional question: how important is this work to running a cellular phone system? All of the evidence indicates that it is vital. Although R. v. Ontario Labour Relations Board, Ex p. Dunn (1963), 1963 CanLII 616 (ON HCJ), 39 D.L.R. (2d) 346, [1963] 2 O.R. 301, where Telecom's manufacturing facility was found to be provincial, is good authority for the proposition that end use is not controlling, we are not here dealing simply with a manufacturer or a supplier of poles. We are dealing with a supplier of a variety of services to the cellular phone companies, which can include poles, but often does not.

38. We are cognizant of the respectability of opposing views on matters of constitutional jurisdiction. Judges, labour boards and commentators at all levels regularly come to well reasoned, opposite, conclusions on the same facts. Mr. Justice Laskin did not agree with the majority in Construction Montcalm where the construction of a federal airport was found to be within provin­cial jurisdiction. Mr. Justice Beetz, who wrote the majority decision in Construction Montcalm, did not agree with the majority decisions in Northern Telecom II, and would have found the installers' work to have been provincial. Mr. Justice Dickson, part of the Northern Telecom II majority, found the facts to be close to the line between federal and provincial jurisdiction, but apparently not close enough to have the general rule of provincial competence tip the balance, as Mr. Justice Beetz would have had it in his dissent. To the extent that the facts before us can be described as similarly close to the sometimes permeable constitutional divide, we find the decision of the Supreme Court of Canada in Northern Telecom II to be most persuasive. Although there are dif­ferences in the details of the work of the Northern Telecom installers and the employees of CCSI, they are, in our view, minor for the purposes of constitutional jurisdiction. For instance, although the installers apparently did mostly interior work installing equipment; including support equip­ment, which was not of the size that CCSI deals with, this has more to do with the mechanics of the "land" phone system than with the importance of the two kinds of installation work to their respective phone systems. Although the Northern Telecom installers had limited authority to cur­tail service on the Bell lines or operate it for training purposes, this was not evidently the predomi­nant feature of their work. The macro relationship between the Northern Telecom installers and the Bell system is directly analogous to that of the CCSI metalworkers to the cellular phone sys­tem. CCSI is, on a regular basis, involved in the constant improvement of the cellular phone net­work. A similar finding was the crux of the court's decision that the Northern Telecom installers' labour relations were to be controlled by federal jurisdiction.

39. By contrast, the Construction Montcalm facts are very different from those before us. That company was a construction company presumed by the Court to have had a number of clients and projects over time. It was clear that once finished its work, the construction company would have nothing to do with the airport again. Each time CCSI hands over a supported transmission system, capable of functioning, there is a similarity. However, that similarity loses its force for con­stitutional purposes when one looks at the regularity of the work on the system, in its several varie­ties, including the inspection work and the jobs that flowed from it.

40. We have carefully considered all the authorities and arguments cited and find those which found provincial jurisdiction distinguishable. One distinction is the difference between oper­ations whose only reason for being is to service a federal undertaking and those where servicing the federal operation is only one facet of the local operation. See on this point Loomis Messenger Service, [1985] OLRB Rep. July 1131. These include Vibration Assessment Limited, where an inde­pendent blast monitoring consultant was found to be within provincial jurisdiction as incidental to construction, despite its work monitoring the construction and installation of a Bell cable along a Trans Canada Pipeline right of way. Cases of infrequent construction or reconstruction such as Re. Canada Labour Code, where railway bridges were replaced or Peter Kiewit, where a canal lock was rehabilitated, are to be distinguished on the basis of the exceptionality of the work and the closer analogy to the facts in Construction Montcalm which one could describe as pure construction, which is not the case before us. The Ontario Energy Board and Consumers' Gas Co., and Canada Telecommunications Group cases are to be distinguished on the basis of their not being integral to the federal undertaking, but a service to the customers of the federal undertaking. In W. Rourke Ltd., where contractors who spent 90 percent of their time exposing cable for repair by Bell was found analogous to the construction work in Construction Montcalm, the Board said the result might have been different if the contractors were working on existing lines. Here CCSI employees are working on existing lines, and are far more extensively involved in the general upgrading of the cellular system than the employees in that case.

41. For all the above reasons, we are of the view that we are without jurisdiction over these matters.