International Union of Operating Engineers, Local 793 v. Reclamation Management Canada Ltd., 1993 CanLII 7857

[1992] OLRB Rep. June 549

0333-93-R; 0334-93-R International Union of Operating Engineers, Local 793, Applicant v. Reclamation Management Canada Ltd., Responding Party; International Union of Operating Engineers, Local 793, Applicant v. Cal-Nevada Iron and Metals Corp., Responding Party

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members R. M. Sloan and P. V. Grasso.

APPEARANCES: Jack J. Slaughter, Michael Quinn and George Palanuk for the applicant; David Cameletti, Jerry Ross and John Little for the responding party.

DECISION OF THE BOARD; June 8, 1993

1. These two applications for certification came on for hearing together on May 31. 1993.

Both responding employers opposed the respective applications on the basis that their operations

are within federal jurisdiction and go4erned by the Canada Labour Code, and that the labour relations of the responding employers are therefore not within this Board's jurisdiction.

2. The parties agreed to the facts which they considered material to the jurisdiction issue as follows:

(a) in Board File No. 0333-93-R (Reclamation of Canada Ltd. ("Reclamation")):

AGREED STATEMENT OF FACTS

1. The Responding Party is engaged in the business of decommissioning mines and industrial facilities particularly where environmental concerns play a major factor.

2. The Responding Party holds a contract with Rio Algom Ltd. to decommission three uranium mines sites in Elliot Lake, Ontario. The Responding Party is the managing contractor responsible for all activities required to collect and store hazardous and toxic materials, asbestos containment and removal, dismantling and cleanup, asset removal, sales and site restoration. In doing so the Responding Party is required to observe the provisions and regulations of the Atomic Energy Control Act of Canada.

3. In order to execute the Responding Party's responsibilities it subcontracted parts of the work as follows:

(i) asbestos containment and removal to Continental Insulation;

(ii) asset removal, dismantling and cleanup to Cal-Nevada Iron & Metals;

(iii) hazardous material removal and disposal to Laidlaw Environmental.

4. The balance of the work is performed by the Responding Party directly. Work activities are:

Hazardous Material Collection: including acid generating materials, chemicals, hydro carbons, P.C.B. 's, radio active contaminated material;

Sales - Used Assets: Ball mills (used to grind uranium ore), crushers, pumps, electrical components;

Warehousing - Storage and shipment of sold assets;

Removal of Asbestos Covered Pipe to landfill: including containing, transporting and burying asbestos;

5. The scheduling of work activities is regulated by the federal Atomic Energy Board, the provincial Ministry of Labour and the provincial Ministry of the Environment. Hazardous material collection and asbestos containment must be completed before any dismantling activities can be done.

6. The Responding Party has hired employees to perform the activities which it must perform at the three uranium mines at Elliot Lake. These employees make up the bargaining unit for which the Applicant seeks to be certified.

All of which is agreed by the parties hereto.

(b) in Board File No,. 0334-93-R (Cal-Nevada Iron & Metals Corp. ("Cal Nevada")):

AGREED STATEMENT OF FACTS

1. The Responding Party is a subcontractor engaged by Reclamation Management Canada Ltd., a general contractor, pursuant to a contractual relationship with Rio Algom Ltd. which is more fully described in Paragraph 2 of the Agreed Statement of Facts of Board File No. 0333-93-R.

2. In carrying out their subcontracted responsibilities for the general contractor under the aforesaid contractual relationship, the Responding Party is required to observe the provisions and regulations of the Atomic Energy Control Act of Canada.

3. The subcontracted work performed by the Responding Party can generally be described as the taking down, cleanup, and restoration of the areas of three uranium mine sites in Elliot Lake, Ontario.

4. The work specifically involves:

a) the careful and safe taking down and dismantling of all above-ground structures on the three sites;

b) opening up of pipe tunnels, conveyor ways, and underground basement and then subsequently backfilling these to complete grade restoration;

c) taking down of any upstanding structure above 1 foot below finished grade level;

d) the final general grading and ripping of all site areas to match the adjacent natural contours and which will encourage natural vegetation;

e) the removal and cleaning of probable assets for future or present disposal;

f) the safe and approved disposal of material, equipment, and debris which cannot be readily sold, arising from this work at a specified location identified by Rio Algom Ltd.

5. The above work is to be completed between 1992 and 1994.

6. The scheduling of work activities is regulated by the Federal Atomic Energy Board, the Provincial Ministry of Labour, and the Provincial Ministry of the Environment.

7. The Responding Party has hired employees to perform the subcontracted activities which it must perform at the three uranium mines at Elliot Lake, Ontario. These employees make up the bargaining unit for which the Applicant seeks to be certified.

All of which is agreed by the parties hereto.

3. Counsel for Reclamation submitted that the work of decommissioning a uranium mine

15 under federal jurisdiction because it is an integral part of or necessarily incidental to the mining of uranium for use in the production of atomic energy. Counsel referred to section 18 of the Atomic Energy Control Act and argued that closing a mine is an integral part of operating it, and that it is therefore part of the undertaking as a whole. Counsel for Cal-Nevada adopted the representations of counsel for Reclamation and also argued, in the alternative, that the work of the responding employers is within federal jurisdiction because it is work physically on or in connection with a federal undertaking and therefor comes within section 4 of the Canada Labour Code. In that respect, counsel submitted that the work in question is like construction work. In support of their position, the responding employers referred the Board to Vis-U-Ray, [1971] OLRB Rep. Nov. 703; Manitou Mechanical Ltd., [1978] OLRB Rep. July 657; Reliable Window Cleaners (Sudbury) Limited, [1982] OLRB Rep. Nov. 1714; Robertson-Yates Corporation Limited, [1962] OLRB Rep. Oct. 215; Industrial Construction Division Allied Structural Steel Company, [1973] OLRB Rep. Dec. 636; Cant v. Canadian Bechtal Ltd. (1957) 1957 CanLII 317 (BC SC), 12 D.L.R. (2d) 215 (County Court, B.C.); Chamberlin v. The King, (1909) 62 Can. S.C.R. 350 (Supreme Court of Canada).

4. The applicant conceded that the "operation" of a uranium mine is within federal jurisdiction and under the Canada Labour Code. However, it submitted that neither responding employer is engaged in operating the mines in question and that legislation like the Atomic Energy Control Act must be given a purposive interpretation. The applicant submitted that the mere fact that the work is "on" what was a federal undertaking, or that there is federal regulatory legislation which applies~ does not put the responding employers' operations within federal jurisdiction. The applicant referred the Board to Northern Telecom Limited v. Communications Workers of Canada et. al., (1979) 1979 CanLII 3 (SCC), 98 D.L.R. (3d) 1; 79 CLLC ¶15,256 (Supreme Court of Canada); Construction Montcalm v. Minimum Wage Commission, 1978 CanLII 18 (SCC), [1979] 1 S.C.R. 754; 79 CLLC ¶14,190; Bachmeier Diamond and Percussion Drilling Co. Ltd. and Beaverlodge District of Mine, Mill and Smelter Workers Local Union No. 913, (1962) 1962 CanLII 309 (SK CA), 35 D.L.R. 241; 63 CLLC ¶15,435 (Saskatchewan Court of Appeal); Peter Kiewit Sons Co. Ltd., [1988] OLRB Rep. May 510.

5. Section 91 of the Constitution Act (1867) R.S.C 1985, App. II provides, in part, that:

6. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, ii is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next herein-after enumerated; that is to say, -

7. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

(often referred to as the "peace, order, and good government" or "p.o.g.g." clause). Further, section 92 of the Constitution Act, 1867 provides that:

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming

within the Classes of Subjects next herein-after enumerated; that is to say,­

10. Local Works and Undertakings other than such as are of the following classes:­

c. Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.

6. In section 2 of the Atomic Energy Control Act, R.S.C. 1985, c. A-16, "atomic energy" and "prescribed substances" are defined as follows:

"atomic energy" means all energy of whatever type derived from or created by the transmutation of atoms;

"prescribed substances" means uranium thorium, plutonium, neptunium, deuterium, their respective derivatives and compounds and such other substances as the Board may by regulation designate as being capable of releasing atomic energy or as being requisite for the production, use or application of atomic energy;

Section 18 of that Act provides that:

18. All works and undertakings constructed

(a) for the production, use and application of atomic energy,

(b) for research or investigation with respect to atomic energy, and

(c) for the production, refining or treatment of prescribed substances,

are, and each of them is declared to be, works or a work for the general advantage of Canada.

7. Sections 2 (h) and 4 of the Canada Labour Code provide that:

8. (h) a work or undertaking that, although wholly situated within a province, is before or after its execution declared by Parliament to be for the general advantage of Canada, or for the advantage of two or more of the provinces,

9. This Part applies in respect of employees who are employed on or in connection with the operation of federal work, undertaking or business, in respect of the employers of all such employees in their relations with those employees and in respect of trade unions employers' organizations composed of those employees or employers. R.S., c. L-1, s. 108; 1972, c. 18,s.1.

10. It is readily apparent that the Parliament of Canada does not have a general jurisdiction over labour relations. On the contrary, employment matters, including labour relations, are prima facie within provincial jurisdiction, as a matter of property and civil rights, and that federal jurisdiction is the exception rather than the rule. (Indeed, even an unemployment insurance commission scheme was found to be ultra-vires the federal parliament in Unemployment Insurance Preference 1937 CanLII 363 (UK JCPC), [1937] A.C. 355 and had to be overcome by an amendment to the Constitution Act which added "unemployment insurance" as a new head of federal power.) Labour relations matters come within federal jurisdiction only if it is demonstrated that they are an integral part of a federal work, business or undertaking, or of a "local work or undertaking" excluded from provincial jurisdiction under section 92 (10) of the Constitution Act, 1867 (see, for example, Toronto Electric Commission v. Snider [1925] D.L.R. 5; 1925 CanLII 331 (UK JCPC), [1925] A.C. 396 (J.C.P.C.); Northern Electric Company Limited 63 CLLC ¶15,484; General Enterprises Ltd. [1977] 1 CLRB Reports 432; Construction Montcalm v. Minimum Wage Commission, supra; Northern Telecom Ltd. v. Communications Workers of Canada et al., supra; Four B Manufacturing v. United Garment Workers, 1979 CanLII 11 (SCC), [1980] 1 S.C.R. 1031; Windsor Airline Limousine Services Limited, [1980] OLRB Rep. Feb. 272, application for; judicial review dismissed, (1981) 1980 CanLII 1897 (ON HCJ), 30 O.R. (2d) 732 (Ont. Div. Court), leave to appeal denied by Ontario Court of Appeal September 15, 1980, unreported; W. Rourke Ltd., [1983] OLRB Rep. Oct. 1711). Both the courts and labour relations tribunals (including this Board) have applied a functional test in determining whether the labour relations in issue in a particular case are within federal jurisdiction. That is, the question to be answered is: does the work in which the employees in question are engaged form an integral part of, or is it necessarily incidental to, a federal work, undertaking or business as a going concern?

11. The fact that the employer or activity in question is subject to some form of federal regulation may be relevant but will not be determinative of a jurisdiction issue. Of far greater significance is the existence of a functional or operational connection between the activity and an undertaking which is within federal jurisdiction. For example, employees engaged in constructing airport runways are not swept into federal jurisdiction if their work is simply construction and is unrelated to the design or operation of an airport which would be an integral part of aeronautics (Construction Montcalm v. Minimum Wage Commission, supra); the employees of a company operated by "Indians" on "Lands reserved for the Indians" (section 91(24) of the Constitution Act, 1867) who are engaged in manufacturing shoes are not in federal jurisdiction (Four B Manufacturing v. United Garment Workers, supra,) and employees of a hotel owned by but functionally separate from a inter-provincial railway will not be within federal jurisdiction (C. P.R v. A-G B.C. (Empress Hotel), 1949 CanLII 278 (UK JCPC), [1950] A.C. 122). (See also, Bachmeier Diamond and Percussion Drillings Co. Ltd. v. Beaverlodge District of Mine, Mill Workers Local Union No. 913, supra; Northern Telecom Ltd. v. Communications Workers of Canada et al, supra; Re Henuset Rentals Ltd. and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 488, 78 CLLC ¶16,137 (Saskatchewan Labour Relations Board), affirmed 1979 CanLII 2170 (SK QB), 96 D.L.R. (3d) 651, 79 CLLC ¶14,194, [1979] 2 W.W.R. 727 (Saskatchewan Queen's Bench), affirmed 1980 CanLII 2289 (SK CA), 119 D.L.R. (3d) 639, [1981] 1 W.W.R. 748 (Saskatchewan Court of Appeal); Manitou Mechanical Ltd., supra; Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees v. Canadian Pacific Limited and Marathon Reality Company Limited, [1978] 1 CLRB Reps. 493; Wakeham and Son Ltd., [1981] OLRB Rep. July 1036; Re Burnshire Mobile Maintenance Ltd. and Canada Labour Relations Board, (1985) 1985 CanLII 5507 (FCA), 22 D.L.R. (4th), 748 (Federal Court of Appeal); National Protective Guard Service Company Limited, [1987] OLRB Rep. Feb. 245; Blue Water Bridge Duty Free Shop Inc.,[1988] OLRB Rep. Feb. 109; Vibration Assessment Ltd., [1989] OLRB Rep. Feb. 223.)

12. In this case, the activities of the responding employers in decommissioning the Rio Algom uranium mines in Elliot Lake are regulated by both federal and provincial legislation. The "decommissioning" of the mines is analogous to demolition work in the construction industry. Just as construction of something (like an airport) which is to be used in operating a federal undertaking is not necessarily itself within federal jurisdiction, neither is its decommissioning or demolition. It is clear that none of the mines are operating and that none of the responding employers' activities involve the production, refining or treatment of a prescribed substance within the meaning of section 18 of the Atomic Energy Control Act, or that any of the activities are otherwise "works or undertakings" under that provision. In short, the employees or the responding employers are not engaged in work which is an integral part of or necessarily incidental to a federal work, undertaking or business as a going concern. The Board is therefore satisfied that the labour relations of these responding employers fall within provincial jurisdiction and that these application are within the Board's jurisdiction.

13. The parties have reached agreement with respect to all other matters necessary to the

disposition of these two applications. The Board is satisfied that it is appropriate to dispose of the applications on that basis.

12. Accordingly, in Board File No. 0333-93-R:

(a) the Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act;

(b) the Board finds that all employees of Reclamation Management Canada Ltd., in the City of Elliot Lake, save and except project foremen, persons above the rank of project foreman, office, clerical and technical staff, constitute a unit of employees appropriate for collective bargaining;

(c) the Board is satisfied, on the basis of the evidence before it, that more than fifty-five percent of the employees of the responding employer in the bargaining unit, at the time the application was made, were members of the applicant on April 29, 1993, the date on which this application was made and the date on which membership was ascertained under section 8(1) of the Act.

A certificate will therefore issue to the applicant in Board File No. 0333-93-R.

13. In Board File No. 0334-93-R:

(a) the Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act;

(b) the Board finds that all employees of Cal-Nevada Iron & Metals Corp., in the City of Elliot Lake, save and except project foremen, persons above the rank of project foreman, office, clerical and technical staff, constitute a unit of employees appropriate for collective bargaining;

(c) the Board is satisfied, on the basis of the evidence before it, that more than fifty-five percent of the employees of the responding employer in the bargaining unit, at the time the application was made, were members of the applicant on April 29, 1993, the date on which the application was made and the date on which membership is ascertained under section 8(1) of the Act.

A certificate will therefore issue to the applicant in Board File No. 0334-93-R.