International Union of Operating Engineers, Local 793 v. E. S. Fox Limited, 1993 CanLII 8024

[1993] OLRB REP. APRIL 321

3256-91-G; 3540-91-G International Union of Operating Engineers and it's Local 793, Applicant v. E. S. Fox Limited, Responding Party; Millwright District Council of Ontario on its own behalf and on behalf of its Local 1007, Applicant V. B. S. Fox Limited, Responding Party

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members F. B. Reaume and B. L. Armstrong.

APPEARANCES: Bernard Fishbein, Joseph Kennedy and James Anderson for the International Union of Operating Engineers and it's Local 793; J. David Watson and Ron Coltart for the Millwright District Council of Ontario on its own behalf and on behalf of its Local 1007; W. J. McNaughton and H. Miron for the responding party.

DECISION OF LOUISA M. DAVIE, VICE-CHAIR, AND BOARD MEMBER B. L. ARMSTRONG; April21, 1993

1The applicant in each of these two applications has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding determination pursuant to section 126 (formerly section 124) of the Labour Relations Act ("the Act"). Each grievance arises out of work performed by employees of the responding party ("E. S. Fox" or "the employer"). The employer's defence to each of these grievances is that the work it performed was not covered by any collective agreement to which it is bound with either the applicant International Union of Operating Engineers, Local 793 ("Local 793" or the "O.E.") or the applicant the Millwright District Council of Ontario ("Millwrights").

FACTS

2E. S. Fox is primarily a mechanical engineering firm. It operates a number of different "divisions". These divisions are not separate corporate entities. As a result of its methods of operation E. S. Fox is bound to a number of different collective agreements. Thus, for example, E. S. Fox operates a "fabricating division" at Niagara Falls. Employees at that location are covered by a collective agreement which E. S. Fox has with the United Steelworkers of America ("Steelworkers").

3E. S. Fox also operates a "construction division". The work generally performed by that division can best be described as work of a steel erection or mechanical engineering nature. E. S. Fox is a member of the Association of Millwrighting Contractors of Ontario Inc., ("AMCO") a designated employer bargaining agency ("EBA") and is bound to both the province-wide agreement between that EBA and the Millwright District Council of Ontario ("the Millwrights Provincial (ICI) Agreement") and another collective agreement between those same two entities entitled "Agreement for Maintenance and Occupied Premises Projects" ("the Millwrights Maintenance Agreement"). E. S. Fox is also a member of the Ontario Erectors Association, Incorporated (OEA) and is thus bound to the provincial collective agreement between the O.E. employer bargaining agency and the O.E. employee bargaining agency (the O.E. province-wide agreement) to which the OBA is a signatory. In this proceeding E. S. Fox takes the position that these various agreements only apply to employees of its "construction" division.

4E. S. Fox also operates a pipe fabrication division known as the Port Robinson Pipe Fabrication Facility. Employees at that location are covered by the national standard agreement for a commercial pipe fabrication shop to which E. S. Fox is bound. That agreement is between the Canadian Pipe Fabricators Association and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ("the U.A.") and will be referred to as the U.A. Pipe Shop Agreement.

5The work which gives rise to these grievances was performed on a barge which was floating on water in a branch of the Welland Canal. That branch of water is physically located adjacent to the Port Robinson Pipe Fabrication Shop property.

6The work was not however performed by E. S. Fox's Pipe Fabrication Division pursuant to the U.A. Pipe Shop Agreement. Rather the work was performed by E. S. Fox's "Marine Division" pursuant to the terms of a separate collective agreement entitled a "Marine Agreement" between E. S. Fox and the U.A. Local 666. There was some dispute amongst the parties concerning the status and/or validity of that agreement but, in the circumstances of this case that dispute is not relevant to the determination of these grievances.

7There was no dispute about the work which gives rise to these grievances. The work involved a conversion of a large barge. E. S. Fox obtained a contract from St. Mary's Cement to convert or refit a barge several hundred feet long to a self-unloading barge. The specific work involved raising the deck of the hold of the barge, and the installation of a conveyor system to enable cargo to be taken from the hold of the barge to deck level. A further conveyor system (described by counsel for the employer as a long boom conveyor system) was built to swing the cargo over the deck and onto the dock adjacent to the barge. Upon completion of the barge its owner, St. Mary's Cement, would use the barge for service on the Great Lakes.

8As indicated the work on the barge was undertaken while the barge was floating on water in a branch of the Welland Canal. At the time the work was undertaken the barge was moored to the dock by means of cables and nylon ropes. A four foot wide walkway led from the shore into an access port cut approximately ten to fifteen feet above the water line on the barge. The walkway was welded onto the barge. The purpose of the mooring lines and cables was to secure the barge so that it would not move while the refitting work was undertaken.

9In order to perform the work E. S. Fox used a large crane to lift steel, equipment and materials onto the barge. In addition, one or two smaller cranes were used on the ship itself to move material. There is no dispute that the operation of those cranes is the same type of work typically done by members of the O.E. on E. S. Fox's construction division projects.

10The installation and alignment of the conveyor system and self-unloading equipment was performed by persons referred to as "shipwrights". There is no dispute that the type of work performed by the shipwright is the same type of work typically done by members of the Millwrights on the employer's construction division projects.

11All of the employees at the project worked under the Marine Agreement which E. S. Fox has with the U.A. Local 666. The Millwrights generally assert the work of the shipwrights should have been performed in accordance with either the Millwrights Provincial (ICI) Agreement or the Millwrights Maintenance Agreement. Local 793 asserts the operation of equipment and cranes should have been performed in accordance with the O.E. province-wide agreement. E. S. Fox disputes these assertions.

12The evidence also discloses the following facts.

13In or about 1988 E. S. Fox fabricated a vessel or tank which was part of a desalinization plant. That vessel was put on a barge for transportation to the customer. The vessel was contained within a frame and welded onto the barge for transportation. In addition a number of alterations were made to the barge itself, including the installation of handrails, catwalks etc. A member of Local 793 operated a 25 ton grove crane to lift material onto the barge while work was being done on the vessel on the barge. That Local 793 member worked on this E. S. Fox project for approximately four to five months and was paid pursuant to Schedule "B" of the O.E. province-wide agreement.

14In the past E. S. Fox has done work on ships using millwrights from the union. On those occasions the unionized millwrights performing the work were paid in accordance with the Millwrights' provincial (ICI) agreement. Thus in 1978-1979 E. S. Fox's fabricating division at Niagara Falls built two "shunters" (both used to push/pull ships through the locks). From time to time during the course of the building of these shunters, E. S. Fox used unionized millwrights (who were regularly employed by E. S. Fox) to do such millwrighting work as the alignment of the engines. After such millwrighting work had been completed the fabricating division continued to build the shunters around the work that had been installed by the millwrights. When the fabricating division had built as much of the shunters as it could in the Niagara Falls shop, the shunters were transported to the McCreary docks. There the shunters were put on blocks about ten feet off the ground. E. S. Fox employed the same group of millwrights to install the propellers, drive shafts etc. before the shunters were launched in the water. The final alignment done by the millwrights was done when the shunters were in the water.

15E. S. Fox employed between five and twelve millwrights from the union hall to do these various millwrighting jobs. The millwrights required came from E. S. Fox's construction division. After they had completed their work on the shunters these unionized millwrights went back to whatever else E. S. Fox's construction division had on-going at the time.

16As E. S. Fox did not have large enough cranes to move the shunters it engaged both Sarnia Crane Rental and Nadrofsky Steel Erecting Limited for that purpose. Both of these companies are unionized contractors who have a collective bargaining relationship with Local 793. The crane operators employed on the shunter project were therefore members of Local 793 employed in accordance with the O.E. province-wide agreement.

17In the winter of 1988 E. S. Fox performed work on two ships in the Kingston area. At that time it employed between two to four millwrights from the local union hall to work on a tour boat called "Island Queen" and a coast guard buoy tender called "Spune". The Island Queen was in dry dock while the Spune was moored in the water alongside a dock.

18On these ships the millwright work involved changing drive shafts, work on the propellers, bushings, bearings, the installation of pumps and miscellaneous mechanical equipment. These two projects were winter projects performed by E. S. Fox millwrights. The work took approximately six to seven weeks as millwrights were sent by E. S. Fox for one or two days at a time to do the work when those millwrights were not needed elsewhere. When not working on the ships the millwrights performed their other "normal" work for E. S. Fox. At all times the millwrights were paid the appropriate millwrights provincial (ICI) agreement rates. There was no hoisting or crane work associated with E. S. Fox's work on these ships.

19Other evidence which was placed before this panel with the agreement of the parties consisted of the operations at certain ship repair companies. Thus, the parties agreed that Port Weller Dry Docks, Fraser Ship Repair, and Marsh Engineering are three ship repair companies who could have done the work performed by E. S. Fox. Each of these ship repair companies has an "industrial" type collective agreement with either the Boilermakers or the Steelworkers. None of these companies have agreements with either the Millwrights or Local 793. The industrial type collective agreements at these three ship repair companies consist of a typical, single "wall to wall" bargaining unit which includes within it all employees regardless of their job functions.

20The parties agreed that each of these three companies may from time to time contract out certain work thereby involving outside contractors who may in turn have collective agreements with either or both the Millwrights and Local 793. In those instances the outside contractors may come to these three ship repair companies bringing with them their "construction" or "craft" workers. As a result members of both the Millwrights and the Operating Engineers have worked at these three facilities from time to time.

21In addition, and as permitted by article 2.02 of the collective agreement between E. S. Fox and the Steelworkers, members of both Millwrights and the Operating Engineers may from time to time perform work at the Niagara Falls Fabricating Division. When employed at the Fabricating Division members of each of these two trades do what is normally recognized as their craft work, that is to say the millwrighting or operating engineers' work that they would normally perform while employed with the construction division of E. S. Fox. When working at the Niagara facility these persons have always been paid the rate which they would normally receive under the Millwrights' provincial (ICI) agreement or Local 793's province-wide agreement if they were working on a construction division project.

22The final area of evidence before us relates to the application of the O.E. province-wide agreement. That evidence came principally from Mr. J. Kennedy who was business representative of Local 793 from 1964 to 1974, and business manager of Local 793 from 1974 to 1992. Mr. Kennedy was involved in the negotiation of every collective agreement since the introduction of province-wide bargaining in 1978.

23Mr. Kennedy testified that even before the introduction of legislated province-wide bargaining in the ICI sector, Local 793's practice and experience was to negotiate collective agreements which had province-wide application with the various employer organizations and individual contractors. He stated that as a result of this experience when province-wide bargaining legislation was enacted, Local 793 merely incorporated the legislation into its existing scheme of bargaining. A meeting was held between representatives of Local 793 and the various contractors and employer organizations at which it was agreed and established that the newly enacted province-wide ICI bargaining scheme would be incorporated into a single province-wide agreement with various appendices. Mr. Kennedy testified that at that initial meeting it was "clearly understood" by all parties present that notwithstanding the introduction of the province-wide bargaining legislation, the recognition portion of the existing province-wide collective agreements would remain unchanged. Mr. Kennedy testified that the intent of the parties was that the new province-wide collective agreement with its various appendices would continue to cover all the work performed by all the contractors bound to the agreement in the same way that the individual predecessor province-wide agreements had done. It was therefore Mr. Kennedy's evidence that the current province-wide agreement also covers all of the work that a contractor bound to that collective agreement does with hoisting (cranes), earthmoving or excavation equipment.

24Mr. Kennedy testified that the work covered by the agreement is not limited to ICI sector construction work, and indeed is not limited to construction work. He testified that those contractors bound to Schedule "B" of the province-wide agreement such as E. S. Fox (generally members of the OEA) are bound to apply Schedule "B" to all of the work they perform. As an example Mr. Kennedy referred to his personal experiences and those instances when he was paid in accordance with Schedule "B" (or its predecessor) while employed by an OEA member contractor such as Dominion Bridge for such work as moving "pots" at the Steel company in Hamilton, straightening trucks that had skidded off the road at a northern location uranium mine etc.

25We also heard from various members of Local 793. These persons testified about their personal experiences with the application of the collective agreement to work they had performed on behalf of other contractors (not E. S. Fox) bound to Schedule "B" of the province-wide agreement. Local 793 members testified to experiences similar to those of Mr. Kennedy's including instances when they were paid in accordance with Schedule "B" for such work as loading steel onto trucks in a yard, unloading machinery from ships for Algoma etc. The totality of their evidence indicates that when employed by an employer bound to the province-wide agreement, these Local 793 members have always been paid in accordance with the collective agreement, including those occasions when they performed work that is without doubt not construction work. It would appear however that generally, that work was performed at times when the contractor was already at the site engaged in construction activities, or at times when the Local 793 member was in between" construction jobs but nevertheless continued to be employed by the contractor bound to the O.E. province-wide agreement.

26More specifically we heard the evidence of one Local 793 member employed by E. S. Fox about his personal experiences with the application of the province-wide agreement at about the time when work on the barge commenced. Mr. Holder testified that he has been employed by E. S. Fox as a crane operator for approximately twelve years. Throughout his employment he has always been paid in accordance with Schedule "B" of the province-wide agreement.

27At around the time work on the barge commenced Mr. Holder was working at the Port Robinson Pipe Fabricating facility property. Initially, Mr. Holder was part of the crew that first assembled a rented 165 ton crane. That initial assembly took place just outside the pipe shop. Mr. Holder then spent approximately one and a half to two weeks operating the crane. During this period of operation he unloaded steel plates from a truck and placed them behind the pipe shop facility. It was Mr. Holder's evidence that these steel plates were "for the barge job". After unloading the steel Mr. Holder was involved in the dismantling of the crane (i.e. removal of the boom). He then "walked" the crane down to the dock where the barge was moored. There he was involved in re-assembling the crane. He continued to operate the crane at its new location for approximately two weeks loading and unloading material from the barge. Throughout this time Mr. Holder continued to be employed pursuant to the terms and conditions of the province-wide agreement including the rates of pay set out in Schedule "B".

28A dispute arose about Mr. Holder's continued employment under the terms and conditions of the province-wide agreement and Schedule "B". Another operator was engaged by E. S. Fox to operate the 165 ton crane. Mr. Holder however continued to work at the barge site operating a 25 ton Grove crane for approximately one week. During this period of time he loaded scrap into scrap bins and unloaded and loaded material from or onto trucks. He continued to be paid in accordance with Schedule "B" of the province-wide agreement. Thereafter Mr. Holder was transferred to another project and left the barge site.

29Based on all of the evidence each of the trade unions asserted the work performed by E.S. Fox was construction work and/or in any event was covered by their collective agreements. On the other hand, E. S. Fox asserts that the work is not construction work as it involves work on a chattel and not a fixture. E. S. Fox also argues that the work is not covered by any collective agreement to which it is bound with either Local 793 or the Millwrights.

30Before we determine the issues raised by the parties to these grievances, we wish to make it clear that in the context of a referral of a grievance to arbitration under section 126 of the Act it is not always necessary to determine whether work is or is not "construction". Pursuant to section 126 of the Act the Board has jurisdiction to hear grievances arising out of a collective agreement between a construction industry trade union and a construction industry employer as defined in section 119 of the Act. (See Babcock and Wilcox Canada Limited, [1988] OLRB Rep. Dec. 1198; The Electrical Power Systems Construction Association, [1990] OLRB Rep. Oct. 1031).

31In the circumstances of this case the issue as to whether this particular work is construction work arises because it is inextricably tied to the position of the parties that the work does or does not fall within the ambit of the collective agreements to which E. S. Fox is bound. The issue before us is the interpretation of those collective agreements. E. S. Fox submits that it is not bound to apply those collective agreements to work which it asserts is not covered by the collective agreements. As a result we have to decide whether this particular work falls within the ambit of those collective agreements. Given the respective positions of the parties, the adjudication of that issue involves a determination as to whether the agreements are confined solely to "construction" work.

The Submissions with respect to the Millwrights' Grievance

32We note also that in the circumstances of this case the issues revolving around the respective positions of the parties that the work is or is not construction industry work might well have arisen in the context of a jurisdictional dispute regarding the assignment of the work to members of U.A. Local 666. An earlier decision of the Board (before a different panel) noted however that U.A. Local 666 had not expressed an intent to file a jurisdictional dispute and, in the circumstances denied U.A. Local 666 status to intervene in these grievances (see 1992 OLRB Rep. April 431).

33The following are the relevant provisions of the Millwrights' provincial (ICI) agreement:

Article One

SCOPE OF AGREEMENT AND RECOGNITION

(c) This Agreement shall cover and be applicable to all Employers of Employees in the Industrial, Commercial and Institutional sector of the Construction Industry within the Province of Ontario.

We were also referred to the trade jurisdiction claimed by the Millwrights which forms part of that provincial agreement. We find it unnecessary to set out that lengthy claim to jurisdiction. Instead, we consider it sufficient to merely note that the Millwrights' claim jurisdiction inter alia with respect to the installation of conveyor systems of the type installed on the barge.

34The following are the relevant provisions of the Millwrights' Maintenance Agreement:

Agreement for Maintenance and Occupied Premises Projects:

This Agreement recognizes the need to depart from the normal Building Construction traditional work practices and conditions, and therefore, the following special conditions concerning wages and travel allowances are to enable the members of the Association the opportunity to become more competitive in order to provide work opportunities to the members of the Council.

All Articles of the I.C.I. Collective Agreement which remain silent in this Agreement are hereby considered an integral part of this Agreement.

ARTICLE ONE - RECOGNITION:

The Association hereby recognizes the Council as the sole and exclusive Bargaining Agency for all Employees engaged in the performance of repair, replacement, maintenance and renovation.

The Council hereby recognizes the Association as the sole and exclusive Bargaining Agency for all Employers engaged in the performance of repair, replacement, maintenance and renovation.

ARTICLE THREE - SCOPE OF WORK:

(a) This Agreement covers all work assigned by the Owner under a single purchase order to the Employer and performed by Millwrights covered by this Agreement. When these Employees work under the direction and control of the Owner's maintenance department, then such work will be covered by this Agreement and shall not be limited under Definitions in Article Four below.

(b) This Agreement does not cover other work performed by the Employer of a new construction nature, in which event said work shall be done in accordance with the existing I.C.I. Provincial Agreement between the Association of Millwrighting Contractors of Ontario, Inc. and the Millwright District Council of Ontario, United Brotherhood of Carpenters and Joiners of America.

ARTICLE FOUR - DEFINITIONS:

(a) Maintenance shall be defined as any work performed of a renovation, replacement, repair or maintenance character within the limits of a plant property, or other locations related directly thereto.

(b) The word 'repair' used within the terms of this Agreement and in accordance with maintenance, is work required to restore by replacement of parts of existing facilities to efficient operating condition.

(c) The word 'renovation' used within the terms of this Agreement and in connection with maintenance, is work required to improve and/or restore by replacement or by revamping parts of existing facilities to efficient operating condition.

(d) The term 'existing facilities' used within the terms of this Agreement is limited to a constructed unit already completed and shall not apply to any new unit to be constructed in the future, even though the new unit is constructed on the same property or premises.

35Counsel for the Millwrights argued that the evidence disclosed that the barge was essentially an industrial platform immobilized and affixed to the dock. Further, the product installed on the barge (i.e. conveyors and loading and unloading systems) fell within the jurisdiction of the Millwrights. It was asserted that that installation was "construction" within the meaning of Article 1(c) of the provincial agreement. It was submitted that the fact that the barge could be moved from place to place was immaterial to the determination as to whether the work was construction work within the meaning of the collective agreement. In this regard counsel argued that theoretically any other ready-mix plant could also be moved from area to area by an owner if the owner was prepared to incur the time an expense of so doing.

36Counsel for the Millwrights further submitted that the Board must determine the intent of the parties to the collective agreement on the basis of the entirety of the language used in the collective agreement. Therefore, the Board's jurisprudence with respect to the meaning of "construction industry" (and its distinction between work in connection with chattels or fixtures) was not determinative. Counsel stated that the Board could not simply decide whether the work falls within the definition of "construction industry" as used in the Act because there was no reason to assume the parties intended "construction industry" as used in Article 1(c) of the collective agreement to be synonymous with the jurisprudence of the Board which defines "construction industry" under the Act. It was further argued that the breadth of the jurisdiction claimed within the collective agreement by the Millwrights indicated that the parties didn't merely intend the collective agreement definition of "construction industry" to be restricted to the definition of "construction industry" found in the Act.

37In the Labour Relations Act "construction industry" is defined as follows:

"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.

The Millwrights' asserted that at best the Board's jurisprudence interpreting and applying this definition could only be used as an aid to interpretation. That jurisprudence was not determinative. Other statutes dealing with the definition of "construction industry" were equally relevant.

38Counsel argued that section 45(8)(3) of the Labour Relations Act permits the Board to interpret and apply the requirements of human rights and other employment-related statutes . . and for that reason the Occupational Health and Safety Act was an equally relevant aid to interpretation. We were therefore referred to the following provisions of the Occupational Health and Safety Act:

1.-(1) In this Act,

"construction" includes erection, alteration, repair, dismantling, demolition, structural maintenance, painting, land clearing, earth moving, grading, excavating, trenching, digging, boring, drilling, blasting, or concreting, the installation of any machinery or plant, and any work or undertaking in connection with a project but does not include any work or undertaking underground in a mine; ("construction")

"project" means a construction project, whether public or private, including,

(a) the construction of a building, bridge, structure, industrial establishment, mining plant, shaft, tunnel, caisson, trench, excavation, highway, railway, street, runway, parking lot, cofferdam, conduit, sewer, watermain, service connection, telegraph, telephone or electrical cable, pipe line, duct or well, or any combination thereof,

(b) the moving of a building or structure, and

(2) For the purposes of this Act and the regulations, a ship being manufactured or under repair shall be deemed to be a project.

Counsel submitting that these provisions of the Occupational Health and Safety Act indicated that ship building could be considered to be "construction".

39It was also argued that in any event the barge was a "structure" as that term is used in both the Labour Relations Act and the Occupational Health and Safety Act.

40Finally, with respect to the provincial (ICI) agreement, counsel for the Millwrights submitted that both the inconsistency between the recognition and jurisdiction articles of that agreement, and the past practice evidence with respect to the application of that agreement gave rise to an ambiguity. Extrinsic evidence to resolve that ambiguity was therefore relevant and admissible. Counsel referred to Nei/Ferranti Packard, 1991 CanLII 13403 (ON LA), 22 L.A.C. (4th) 51 and Hermes Electronics Ltd., 1990 CanLII 12935 (NS LA), 14 L.A.C. (4th) 289. In this case the past practice evidence, although not extensive supported the Millwrights' position that the parties intended to apply, and in fact had applied the Millwrights' provincial (ICI) agreement to millwrights employed by E. S. Fox when those millwrights were working on or upon ships.

41As an alternative position, it was submitted by counsel for the Millwrights that the Maintenance Agreement covered the work. In this regard counsel stated that on its face, and having particular regard to article 3(b), the Maintenance Agreement captured all of the other types of work performed by a millwright contractor who was a member of the AMCO, if that work was not otherwise covered by the provincial (ICI) agreement. It was asserted that the two collective agreements must be read together and were intended by the parties to cover all of the work performed by millwrights. Thus if the work was not within the ambit of the provincial (ICI) agreement it was by definition covered by the Millwrights' Maintenance Agreement.

42In response to these submissions counsel for E. S. Fox stated that the work was neither "construction" nor "maintenance". It was not work in connection with a fixture or real property. Rather it was work in connection with a chattel or personal property.

43Counsel referred to the decisions of the Board in defining "construction industry" in which a distinction between chattels and fixtures has been made. (See M. G. Burke Investments Limited, Board File No. 0640-76-R, unreported decision dated February 28, 1971; City of Toronto, [1978] OLRB Rep. Dec. 1145; Disney Display, [1986] OLRB Rep. Feb. 236). Counsel submitted that the Board's jurisprudence indicates that work performed on chattels is not construction work. Only work performed upon or in connection with fixtures can be considered construction. It was stated that such a distinction was equally applicable in determining the scope of the Millwrights' provincial (ICI) agreement.

44Counsel for E. S. Fox stated that the barge was a chattel and the work which forms the basis of the Millwrights' grievance was work in relation to a chattel. Counsel asserted that the essence of a chattel is that it is movable, personal property which is not free-hold. In addition, the barge was not a structure and the work upon the barge was therefore not work upon a structure because the essence of a structure is that it is affixed in some way to the land.

45It was argued by counsel for the employer that the Millwrights' provincial (ICI) agreement covered only construction work within the ICI sector of the construction industry. Neither ship building nor ship repair or refitting of a ship is construction work in the ICI sector of the construction industry. In this regard we were referred to the Board's decision in Port Weller Dry Docks, [1991] OLRB Rep. Sept. 1090. There the Board found "... that the business of repairing or building ships in dry docks does not constitute a business in the construction industry".

46Counsel further submitted that the claims to jurisdiction contained within the Millwrights' provincial (ICI) collective agreement applied only if a contractor was engaged in construction work in the ICI sector. As a result it is not necessary for the Board to consider the Millwrights' claim to jurisdiction in this instance.

47In response to the Millwrights' position that the Maintenance Agreement applied counsel for the employer stated that the parties intent with respect to the application of that agreement was clear. It was a collective agreement designed to permit contractors employing millwrights to compete with the in-house maintenance crews of owners for "maintenance" work. Counsel disputed that the Maintenance Agreement covered all millwrights' work performed by the AMCO members which was not "construction" work.

48Counsel referred to the Board's jurisprudence regarding the distinction between maintenance and construction. In particular, we were referred to Levert and Associates Contracting Inc., [1989] OLRB Rep. June 630, and Quinard Limited, [1982] OLRB Rep. July 1054. It was submitted that in the present circumstances the wholesale changes made to the barge when it was converted to a self unloading barge could not be characterized as "maintenance". It was not work done merely to keep the barge going. The work did not involve maintaining or patching what was already there.

The Submissions with Respect to the Grievance of the Operating Engineers

49With respect to the application of the Operating Engineers' province-wide agreement counsel for Local 793 adopted (and counsel for the employer disputed) the submissions of the Millwrights that the work performed was construction work.

50Counsel for the O.E. further submitted however that the issue as to whether or not the work was construction was largely irrelevant in the adjudication of Local 793's grievance. He asserted that both the language of the province-wide agreement and the viva voce testimony of the witnesses regarding the application of that agreement supported Local 793's position that its collective agreement was not limited to construction work.

51For its part counsel for the employer acknowledged that the O.E. province-wide collective agreement covers more than just ICI construction work. It was his position however that the province-wide agreement covers only the construction activities of E. S. Fox. It does not cover the activities of E. S. Fox's Marine Division such as ship repair or ship refitting.

52In order to comprehend the respective positions of the parties it is necessary to set out the provisions of the relatively complicated O.E. province-wide collective agreement. In so doing we note that although the parties ultimately disagreed about the extent of the application of the province-wide agreement, they agreed on a number of matters with respect to the application of that collective agreement. Thus, for example, each party referred to and adopted as correct the unreported decision of the Board in Rumble Contracting Limited, (Board File No. 1644-83-M unreported decision dated August 31, 1984). In that decision the Board stated:

4. The collective agreement before us is an exceedingly complicated one. It covers the whole of the province geographically. It also covers sectors in the construction industry other than the industrial, commercial and institutional sector and it deals with various classifications of employees working in various areas. It also deals with various types of employers. To understand the dispute between the parties one must examine the whole of the agreement in some detail. The agreement is divided into two parts: a master portion which sets out certain standard terms and conditions applicable to everyone covered by the agreement, and a collection of some 14 "Schedules" running alphabetically (excluding "I") from Schedule "A" to Schedule "0". These schedules in turn deal with specific types of employers, the conditions to be applied in various areas of the province and, in one instance, certain types of employees....

5. The typical format for a schedule is a page listing the schedule and setting out, "This Schedule shall cover and apply..." followed by several pages setting out wages and working conditions for employees covered by that schedule. It would be wrong to think of these introductory words as preambles. They define the coverage of each of the specific schedules. Because these "definitions" which introduce each schedule are at the root of the dispute between the parties, we shall quote from the various schedules in the collective agreement the "definitions" for each of the schedules...

[emphasis added]

Similarly the "definitions" of the schedule are at the root of the current dispute. These definitions currently read as follows:

SCHEDULE "A"

This Schedule shall cover and apply to Employees [sic] engaged in the CRANE AND EQUIPMENT RENTAL BUSINESS within the Province of Ontario.

SCHEDULE "B"

This Schedule shall cover and apply to Employers engaged in the STEEL ERECTION OR MECHANICAL INSTALLATIONS BUSINESS within the Province of Ontario.

SCHEDULE "C"

This Schedule shall cover and apply to Employers engaged in the FOUNDATION, PILINGAND CAISSON BORING BUSINESS within the Province of Ontario.

SCHEDULE "D"

This Schedule shall cover and apply to Employers that are member Companies of the Toronto & District Excavators Association engaged in the EXCAVATING BUSINESS within the Province of Ontario.

SCHEDULE "E"

This Schedule shall cover and apply to Employers engaged in all work other than the work covered by Schedules "A", "B", "C" & "D" hereof and without limiting the generality of the foregoing BUILDING AND CONSTRUCTION WORK within the Counties of Essex and Kent.

SCHEDULE "F"

This Schedule shall cover and apply to Employers engaged in all work other than the work covered by Schedules "A", "B", "C", & "D" hereof and without limiting the generality of the foregoing BUILDING AND CONSTRUCTION WORK within the County of Lambton.

SCHEDULE "G"

This Schedule shall cover and apply to Employers engaged in all work other than the work covered by Schedules "A", "B", "C" & "D" hereof and without limiting the generality of the foregoing BUILDING AND CONSTRUCTION WORK within the Counties of Oxfor. , Perth, Huron, Middlesex, Bruce and Elgin.

SCHEDULE "H"

This Schedule shall cover and apply to Employers engaged in all work other than the work covered by Schedules "A", "B", "C" & "D" hereof and without limiting the generality of the foregoing BUILDING AND CONSTRUCTION WORK within the Regional Municipalities of Niagara, Haldimand, Norfolk, Hamilton, Wentworth and Waterloo, the Counties of Brant, Dufferin, Grey, Wellington and that portion of the Regional Municipality of Halton lying West of #25 Highway.

SCHEDULE "J"

This Schedule shall cover and apply to Employers engaged in all work other than the work covered by Schedules "A", "B", "C" & "D" hereof and without limiting the generality of the foregoing BUILDING AND CONSTRUCTION WORK within Metropolitan Toronto, the Regional Municipalities of Peel, York, Durham, the Counties of Simcoe, Muskoka, Victoria, Haliburton, Peterborough and that portion of Northumberland lying West of a line running North from Colborne to McCrackens Landing and that portion of the Regional Municipality of Halton lying East of #25 Highway.

SCHEDULE "K"

This Schedule shall cover and apply to Employers engaged in all work other than the work covered by Schedules "A"~ "B", "C" & "D" hereof and without limiting the generality of the foregoing BUILDING AND CONSTRUCTION WORK within the Regional Municipality of Ottawa-Carleton, the Counties of Prescott, Glengarry, Russell, Stormont, Dundas, Grenville, Leeds, Lanark, Renfrew, Frontenac, Lennox and Addington, Hastings, Prince Edward and that portion of the County of Northumberland lying East of a line running North from Colborne to McCrackens Landing.

SCHEDULE "L"

This Schedule shall cover and apply to Employers engaged in all work other than the work covered by Schedules "A", "B", "C", "D" hereof and without limiting the generality of the foregoing BUILDING AND CONSTRUCTION WORK within the Districts of Sudbury, Manitouline Island, Parry Sound, Nipissing, Temiskaming, Cochrane and that portion of the District of Algoma lying East of a line running North from Blind River to the Southerly boundary of the District of Sudbury.

SCHEDULE "M"

This Schedule shall cover and apply to Employers engaged in all work other than the work covered by Schedules "A", "B", "C" & "D" hereof and without limiting the generality of the foregoing BUILDING AND CONSTRUCTION WORK within the District of Algoma excluding that portion lying East of a line running North from Blind River to the Southern Boundary of the District of Sudbury.

SCHEDULE "N"

This Schedule shall cover and apply to Employers engaged in all work other than the work covered by Schedules "A", "B", "C" & "D" hereof and without limited the generality of the foregoing BUILDING AND CONSTRUCTION WORK within the Districts of Kenora, Kenora Patricia, Rainy River and Thunder Bay.

SCHEDULE "0"

This Schedule shall cover and apply to Employers engaged in SURVEY WORK within the Province of Ontario.

53In Rumble Contracting, supra, the Board went on to note:

A perusal of these descriptions of the various schedules sheds some light on the scheme of the collective agreement. Schedules "A", "B"~ "C" and "D" refer to certain types of employers. Schedules "E" through "N" deal with various specific areas of the province, and taken together, cover the totality of the Province of Ontario. And Schedule "0" deals with a specific kind of employee, namely, one engaged in survey work.

[emphasis added]

54For the sake of completeness we note also the following provisions of the province-wide collective agreement which may be relevant to this referral of a grievance:

COLLECTIVE AGREEMENT

BETWEEN:

OPERATING ENGINEERS EMPLOYER BARGAINING AGENCY hereinafter called the "Employer"

• and -

OPERATING ENGINEERS EMPLOYEE BARGAINING AGENCY hereinafter called the "Union"

WHEREAS the Union and the Employer are desirous of establishing a form of standard collective agreement with respect to employees of Employers engaged in the construction industry and equipment rental within the Province of Ontario. to provide uniform interpretation, application and administration of the relationship established.

IT IS EXPRESSLY AGREED AND DECLARED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:

ARTICLE 2- RECOGNITION

2.1 The Employer recognizes the Union as the exclusive bargaining agent for all employees of the Employer for whom the Union has bargaining rights within the Province of Ontario engaged in work covered by the schedules and classifications set out in this agreement, and any additional classifications as may be agreed to by the parties.

2.2 The onsite operation, repair, maintenance and servicing of all equipment listed in this agreement shall be performed by a member of the Union including the assembly and dismantling of equipment operated by members of the Union and coming within the jurisdiction of the Union, boom, boom sections and counter-weight installation and removal and any other requirements necessary to put equipment into production or preparation for removal from operations. Additional assistance by other than Union members for the installation or removal of boom, boom sections and counterweight components shall only be used upon agreement with the Union.

ARTICLE 28

The parties agree that Schedules "A" to "0" attached hereto are incorporated into and form part of this Collective Agreement.

IN WITNESS WHEREOF the parties have caused this instrument to be executed by their duly authorized representatives, THIS 14TH DAY OF NOVEMBER, 1990.

55Counsel for Local 793 argued that a reading of the recognition clause indicates the collective agreement covers every employer for whom Local 793 has obtained bargaining rights doing work covered by the Schedules. There is no dispute that Local 793 has obtained bargaining rights and the only real issue is whether E. S. Fox was doing work covered by the Schedules. In this regard, counsel asserted that Schedule "B" (the parties agree that this is the only schedule under which E. S. Fox performs work) does not specify that it applies only to construction work or work within the ICI sector. Rather the introductory words of Schedule "B" indicate that it applies to certain types of employers engaged in certain types of work. Counsel submitted that the schedule applies regardless of whether the work performed by the employer covered by that schedule is on a barge, or in a highrise apartment, or in an industrial factory. The work that is covered by the schedule is the operation of cranes and other similar equipment.

56Counsel referred to other provisions of the collective agreement in support of his assertion that the parties to the collective agreement intended the agreement to cover all of the activities of the employer in relation to the operation of cranes and other equipment. For example, he drew the Board's attention to the fact that the collective agreement covered the maintenance and servicing work of the equipment arguing that such mechanical work was not normally understood to be construction.

57As further evidence of the intention of the parties to the agreement counsel for Local 793 referred to the evidence of the witnesses to the effect that they had always been paid in accordance with Schedule "B" of the collective agreement when employed by contractors bound to that schedule notwithstanding that they may not have been engaged in construction activities, or in work that was not steel erection or mechanical installation. Counsel noted that there had not been any challenge to this evidence.

58Finally counsel for Local 793 referred to the provisions of the collective agreement signed by E. S. Fox prior to the advent of provincial bargaining and the execution of the O.E. province-wide collective agreement in 1978. Thus, he referred to the "pick-up" agreement signed by E. S. Fox in May 1978 in which E. S. Fox agrees to be bound to the newly negotiated province-wide agreement. That pick-up agreement states:

The undersigned Employer hereby approves and accepts the Agreement entered into between the Employer Bargaining Agency designated by the Minister of Labour percent [sic] to clause a of subsection 1 of section 127 of The Labour Relations Act, R.S.O. 1970, c. 232, as amended and the International Union of Operating Engineers and Local 793 of the International Union of Operating Engineers, a copy of which is to be filed with the Ontario Labour Relations Board.

The Employer and the Union agree that the agreement referred to in Paragraph 1 above shall apply in all sectors of the construction industry as defined in Sec. 106(e) of the Labour Relations Act and the Crane and Equipment Rental Business, save and except where the Employer is bound by a subsisting Collective Agreement with the Union pertaining to work performed in a certain sector or sectors of the construction industry.

59In addition, counsel referred to the 1975-1977 collective agreement between E. S. Fox and Local 793. The recognition and union security and jurisdictional claim provisions of that predecessor agreement state:

ARTICLE 2- RECOGNITION AND UNION SECURITY

2.1 The Employer recognizes the Union as the exclusive collective bargaining agent for all employees employed by the Employer in his Erection or Construction Departments in the Province of Ontario, including Federal projects, who come within the jurisdiction of the International Union of Operating Engineers.

2.3 As a condition of employment, it is agreed that only members in good standing of the International Union of Operating Engineers shall be employed on work coming within the terms of this Agreement.

The classifications within the collective agreement indicate that Local 793 claimed jurisdiction in the operation of all cranes and equipment including the maintenance and repair of such equipment.

60It was submitted by counsel for Local 793 that these agreements, which in part formed the foundation of E. S. Fox's bargaining rights and continuing contractual obligations with Local 793, show that E. S. Fox and Local 793 intended the collective bargaining relationship between them to extend beyond the parameters of the employer's activity within the ICI sector of the construction industry.

61Thus, it was argued, the pick-up agreement referred to "all sectors of the construction industry ... and the crane and equipment rental business". The latter aspect clearly going beyond mere construction activities.

62Similarly, the predecessor agreement was evidence that the collective bargaining relationship was not merely limited to E. S. Fox's construction activities as, for example, it spelled out the employer's obligation with respect to such non-construction activities as maintenance of equipment. Moreover, the recognition clause indicates the collective agreement was not limited to construction as it referred to the employer's erection or construction departments.

63Counsel for E. S. Fox submitted that the work on the barge was not work in the construction industry or equipment rental as contemplated by the agreement. In his submissions counsel for E. S. Fox accepted that the O.E. province-wide agreement extended beyond the ICI sector of the construction industry once the employer's activities fell within the coverage of the schedules contained in that agreement. Thus, he accepted that once the employer's activities fell within the categories set out in Schedule "B", namely steel erection or mechanical installation, all of the work related to the operation of cranes or equipment with respect to that activity was provided for including, for example, the maintenance of the equipment. Counsel for the employer also adopted the analysis of the Board in Rumble Contracting that the introductory words of Schedule "B" defined the coverage of that schedule. It was his position however that the work on the barge did not fall within the definition of coverage in Schedule "B" or of any other schedule.

64With respect to Schedule "B" of the O.E. province-wide agreement, it was his assertion that E. S. Fox's marine division was not engaged in steel erection or mechanical installations. It was engaged in ship building and ship repair or refitting. Schedule "B" does not apply to ship repair or ship building and therefore the work which gave rise to this grievance is not covered by the O.E. province-wide agreement.

65Similarly, with respect to the predecessor agreements, counsel argued that E. S. Fox's marine division was not engaged in any sector of the construction industry or in the crane and equipment rental business as referred to in the pick-up agreement. Neither was E. S. Fox's marine division the employers' "erection or construction departments" as referred to in the 1975-1977 predecessor agreement between Local 793 and E. S. Fox. In his view therefore the predecessor agreements did not support the assertion that E. S. Fox had always been bound to apply the O.E. collective agreements to all of its activities and not just its construction activity.

66Counsel submitted that the evidence disclosed that E. S. Fox engaged in activities beyond its construction activities and that this fact had been recognized and accepted by both trade unions. He pointed to the other collective agreements which E. S. Fox has with the United Steelworkers and the U.A. with respect to the fabricating division and the pipe shop operated by E. S. Fox. He argued that the activities of E. S. Fox's marine division was similarly merely another one of the employer's activities.

Decision

67Before turning to our decision in these two grievance referrals we note that in this proceeding E. S. Fox did not challenge the authority of either the AMCO or the OEA to bargain on its behalf. There is no suggestion in either the evidence or the submissions of the employer that either of these organizations exceeded their authority to negotiate collective agreements which the union's have asserted extend beyond the ICI sector of the construction industry. Thus, although the AMCO is a designated EBA and in that capacity is statutorily authorized to bargain with respect to E. S. Fox's millwright employees in the ICI sector of the construction industry, no issue was raised that the AMCO did not also have E. S. Fox's authority to bargain with respect to other matters (i.e. the Maintenance Agreement).

68Similarly, no issue was raised by E. S. Fox that the OEA exceeded its authority to bargain if it negotiated a collective agreement which extends beyond the ICI sector of the construction industry. In this regard we note that the employer is a member of the OBA. The OBA is a constituent of the designated employer's bargaining agency. The OEA is also signatory to the province-wide collective agreement.

69We accept the submissions of Local 793's counsel (submissions which were not challenged by counsel for E. S. Fox) that while the authority of a designed EBA is limited to negotiating collective agreements with respect to the ICI sector of the construction industry, in the present circumstances it is significant that Schedule "B" is incorporated in a province-wide agreement which was executed by both Local 793 and the OEA. Thus, in our view Schedule "B" attains its legitimacy with respect to the ICI sector of the construction industry because the master portion of the agreement has been executed by the designated EBA (see section 145 of the Act). At the same time, Schedule "B" attains its validity with respect to any other matters because it has been executed by an employers' organization. As a result, E. S. Fox is bound to the entirety of the province-wide collective agreement by virtue of its membership in the OBA, the employer organization which negotiated and signed that collective agreement. It is now well established that a properly authorized employers' organization may bargain on behalf of its employer members beyond the parameters of the construction industry (see for example Williams Contracting Limited, [1980] OLRB Rep. July 1115, London Sandblasting and Painting Limited, [1982] OLRB Rep. Sept. 1322, and The Jackson-Lewis Company Limited, [1981] OLRB Rep. Dec. 1794.) In this regard we also find it important to note that E. S. Fox voluntarily entered into the May 1978 pick-up agreement in which it agreed to be bound to the province-wide agreement. It is not so bound merely by reason of the statutory certification and province-wide bargaining provisions of the Act.

The Millwrights' Grievance

70It is a well established rule of interpretation that where the words of a collective agreement are unambiguous they must be given their ordinary meaning without recourse to extrinsic evidence. Where the words on the face of the agreement are ambiguous it is said that a patent ambiguity exists and recourse to extrinsic evidence may be made to assist in interpreting the collective agreement.

71At times the words on the face of the agreement are not ambiguous but application of those words to the facts is “doubtful” or “difficult”. In those instances it is said that there is a latent ambiguity. Where an ambiguity is latent it is permissible to refer to extrinsic evidence to resolve the ambiguity. It is also well established that it is permissible to rely upon extrinsic evidence to disclose whether there is any latent ambiguity. As was stated by the Ontario Court of Appeal in Leitch Goldmines Limited et al. v. Texas Gulf Sulphur Company (Inc.) et. al. 1968 CanLII 405 (ON HCJ), 3 D.L.R. (3d) 161 at page 215-216:

The Court is not necessarily concerned only with the literal meaning of the language used but rather with its meaning in the light of the intentions of the signatones…

A transaction having been reduced to writing, extrinsic evidence is generally inadmissible to contradict, vary, add to or subtract from its terms. This is fundamental in the interpretation of written instruments. Parol evidence may, however, be admitted in aid of interpretation.

Where the language of the document and the incorporated manifestations of initial intention are clear on a consideration of the document alone and can be applied without difficulty to the facts of the case, it can be said that no patent ambiguity exists. In such a case, extrinsic evidence is not admissible to affect its interpretation. On the other hand, where the language is equivocal, or if unequivocal but its application to the facts is uncertain or difficult, a latent ambiguity is aid to be present. The term "latent ambiguity" seems not to be applied generally to all cases of doubtful meaning or application.

Extrinsic evidence may be admitted to disclose a latent ambiguity, in either the language of the instrument or in its application to the facts, and also to resolve it, but it is to be noted that the evidence allowed in to clear up the ambiguity may be more extensive than that which reveals it.

Thus, evidence of relevant surrounding circumstances can be accepted to ascertain the meaning of the document and may clarify the meaning by indirectly disclosing the intention of the parties.

If the surrounding circumstances, however, do not explain the latent ambiguity an equivocation is said to be established, in which event, in addition to evidence of circumstances, direct evidence of the parties' intentions may be received to resolve the equivocation.

(See also Noranda Metal Industries Limited, Ferguson Division and International Brotherhood of Electrical Workers, Local 2345 et. a!. (1984) O.R. 2d 529 (Ct. of Appeal); Re International Union, United Automobile, Aerospace and Agricultural Implement Workers, Local 1967 and McDonald Douglas Canada Limited, 1984 CanLII 2055 (ON HCJ), 47 O.R. 2d 78 (Ont. Divisional Court); and The Brant County Board of Education, [19841 OLRB Rep. Oct. 1349.

72In our view the words of the Millwrights' provincial (ICI) collective agreement are not ambiguous. The agreement on its face applies only to those employees of the employer in the ICI sector of the construction industry in the Province of Ontario.

73We recognize that in this instance the Board is adjudicating in its capacity as a Board of Arbitration under section 126 of the Act. Our role therefore is to hear and determine the difference between the parties to the collective agreement arising from the interpretation, application, administration or alleged violation of that collective agreement. The issue before us is not whether the work performed is work in the "construction industry" as that term is defined in the Labour Relations Act. Rather, the issue is whether the work on the barge falls within the parameters of the collective agreement. Nonetheless we have found the Board's jurisprudence in defining the term construction industry to be particularly helpful as an examination of the entirety of the collective agreement indicates the intent of the parties to negotiate a collective agreement under the construction industry provisions of the Act.

74We interpret "construction industry" as that term is used in the collective agreement to involve work in relation to fixtures and not work in relation to chattels. In our view that is the normal, ordinary and commonly understood meaning of the term and the only meaning which in the context of this collective agreement makes sense. There is nothing in the collective agreement to show the parties intended to use the words in some other sense.

75The barge is a chattel. It is not affixed to the land and is not part of the land. It is both easily removed from its location and generally movable. It is personal property. The work performed by E. S. Fox's employees upon that personal (as opposed to real) property, or upon that chattel, is not work performed by employees in the ICI sector of the construction industry.

76Neither is the language of the Millwrights' provincial agreement to the facts before us uncertain or difficult" so as to disclose a latent ambiguity. There is therefore no need to refer to extrinsic evidence to ascertain the meaning of the collective agreement and resolve any ambiguity. The intent of the parties who negotiated this collective agreement and its application is clear from the language used by the parties.

77On the other hand we view the words of the Millwrights' Maintenance Agreement to be ambiguous. In addition, the application of the language used in that agreement to the facts before us is "uncertain or difficult" and discloses a latent ambiguity. It is "doubtful" (and certainly disputed) whether the work performed by E. S. Fox employees can be characterized as "repair, replacement, maintenance and renovation". The revelation of this latent ambiguity permits us to refer to extrinsic evidence to ascertain the meaning of the collective agreement and resolve the ambiguity.

78Neither party to the Millwrights' grievance however, placed before this Board any such extrinsic evidence. We have for example no evidence concerning the past practice or application of that collective agreement. We are therefore left only with interpreting the collective agreement and the parties' intent through a careful reading of the entirety of that collective agreement.

79Having regard to the totality of the agreement we find that the intent of the parties with respect to that collective agreement is in fact stated in its title and preamble. The purpose of the agreement is to permit the work force of a contractor such as E. S. Fox's construction division to compete with "in-house maintenance" crews of "owners" (see article 3(a)) for available work within a plant or "existing facility" (see article 4(d)).

80The agreement goes on to define both maintenance and repair in terms commonly used by this Board when it is called upon to distinguish between "maintenance" (which is not "construction" within the meaning of the Act) and "repair" (which does fall within the definition of "construction" in the Act). Thus the agreement speaks of work "required to restore by replacement of parts of existing facilities to efficient operating conditions" in much the same manner as the Board's jurisprudence in Master Insulators' Association of Ontario Inc., [1980] OLRB Rep. Oct. 1477; Levert and Associates Contracting Inc., supra; and Quinard Limited, supra.

81Again we emphasize that our role is to determine the coverage of the Millwrights' Maintenance Collective Agreement, not to determine if the work is “construction” or “maintenance” under the Act. Although we have found the Board's jurisprudence in this area to be of some assistance in determining the intent of the parties to this collective agreement, in determining whether the agreement applies to the work we have considered only the definitions of "maintenance", "repair" and renovation used in the agreement.

82Having regard to the entirety of the agreement, we find that the work on the barge was not work done on existing equipment or with respect to an existing facility to keep it functioning properly. It was not work done to assist in preserving, sustaining or maintaining the operating condition of an existing system. The wholesale changes to the barge cannot be characterized as "repair, replacement, maintenance and renovation" as those terms are defined in the Maintenance Agreement. It cannot be said that the work was restoration by replacement to enable the barge to operate efficiently or retain its production capacity. The conveyor system installed was not restored but created.

83For all of these reasons we find that the work on the barge is not covered by any agreement to which E. S. Fox is bound together with the Millwrights. Accordingly, the Millwrights' grievance is hereby dismissed.

The Operating Engineers' Grievance

84Next we turn to examine the O.E. province-wide agreement. Unlike the Millwrights' provincial agreement we find the words of the O.E. province-wide agreement to be ambiguous or equivocal. Certainly, the preamble of the collective agreement suggests the agreement is intended to apply only to employees of employers engaged in either the construction industry or equipment rental. The preamble thus lends some support to the employer's position in this case. The preamble however was not referred to by counsel for E. S. Fox in his submissions. Nor was it put to or addressed by any witness in these proceedings. Moreover, it is now well established in arbitral jurisprudence that although a preamble may be used as a guide to interpretation, "it has no independent validity as a source of rights or obligations nor can it override any provisions of the agreement" (Brown & Beatty, Canadian Labour Arbitration, 3rd edition at p. 4-27). In any event therefore the preamble must be examined in the context of the recognition provisions of the collective agreement.

85The recognition provisions appear to extend the coverage of the agreement beyond construction industry or equipment rental activities. The recognition clause refers generally to "all employees - ... engaged in work covered by the schedules and classifications" and arguably is applicable regardless of whether such employees or such work is either in the construction industry or equipment rental as the schedules and classifications generally set out only different classifications of equipment operators. The recognition clause also goes on to specifically deal with matters that are not necessarily construction or equipment rental.

86In addition the application of that language to the facts is uncertain and difficult and discloses a latent ambiguity. More specifically the application of the schedules creates some ambiguity. With respect to Schedule "B" for example it is "doubtful" (and certainly disputed) whether the work on the barge is steel erection or mechanical installation. It is also doubtful (and certainly disputed) whether that schedule on its face applies to all the work of "employers engaged in steel erection or mechanical installation", or only to employers engaged in the steel erection or mechanical installation business while such employer is performing steel erection or mechanical installation.

87The ambiguity in the language and the latent ambiguity disclosed in its application can be resolved if we have recourse to the extrinsic evidence of past practice in negotiating history to ascertain the intent of the parties to the collective agreement.

88We heard very little evidence regarding the negotiating history between these parties or for that matter the past practice application of the collective agreement by E. S. Fox which assists us in determining the intent of the parties. The evidence placed before us with respect to either of these two areas came from Local 793.

89In terms of negotiating history the only evidence we heard was Mr. Kennedy's evidence that, at the initial negotiations of the first province-wide agreement under the statutory scheme of province-wide bargaining it was the intent of the union and "clearly understood" by all parties that the province-wide collective agreement would apply to all work performed by all contractors bound to the agreement. This evidence was not shaken on cross-examination or contradicted by any other witness. It is the only direct evidence of the parties' intentions before us. We have no direct evidence from E. S. Fox itself or any signatory to the agreement on behalf of the employers' bargaining agency concerning their intent. Thus, we have not heard any evidence from any representative of E. S. Fox or the OEA (or any other constituent of the EBA) that Mr. Kennedy's impressions of that initial meeting were in error or that the intent or understanding of the contractors who would be bound by such an agreement was not as stated by Mr. Kennedy.

90The accuracy of Mr. Kennedy's recollection of the intent of the parties and his understanding of the application of the province-wide collective agreement is strengthened by all of the evidence before us as to how E. S. Fox itself has applied the agreement. Thus, the only evidence before us indicates that this employer has always applied Schedule "B" of the collective agreement when it employs qualified operating engineers to perform work on its behalf. This is so regardless of the nature of its activities. For example, we have the evidence of the crane operator who assisted in the transport of a chattel fabricated by E. S. Fox (the vessel required in a desalinization plant) who was employed in accordance with Schedule "B" of the province-wide agreement. This notwithstanding the fact that in that instance E. S. Fox was merely the manufacturer and supplier of that chattel and was not engaged in any "construction" activities in relation to the installation of that chattel. The manufacture of the frame, "catwalks, handrails etc. and other alterations to the barge required for the sole purpose of the safe transport of that chattel from supplier to customer is not necessarily a "construction industry" activity. The same is true for the hoisting work involved with the transport of the shunters and their placement in the water. In that instance the work was also performed in accordance with the province-wide agreement although the mere manufacture, transport and delivery of those chattels by a supplier for a customer also is not necessarily a construction industry activity.

91The employer has submitted that Local 793 is aware of the fact that it carries on activities other than "construction activities". E. S. fox referred to its pipe fabricating shop and its Niagara Falls Fabricating facility and the collective agreements it has with other unions at those locations. There is no evidence before us, however, to suggest that any cranes or other equipment are used at those facilities, or if used, that the operation of that equipment is done in a manner that is either inconsistent with or in violation of the O.E. province-wide agreement. Indeed, as these two examples indicate the evidence is to the contrary and suggests that even when another division of E. S. Fox has primary responsibility for a project (such as the fabricating division's responsibility for the shunters) the O.E. province-wide agreement is applied to the hoisting or crane work involved with the project.

92Having regard to the broad recognition clause of the province-wide agreement in the absence of any evidence to suggest that the other divisions of E. S. Fox which do not engage in construction industry activities have operated cranes, earthmoving, excavation or similar equipment in a manner which suggests these divisions have not been considered to be bound to the O.E. province-wide agreement, we are not persuaded that the mere existence of such divisions is evidence that the O.E. province-wide agreement applies only to E. S. Fox's construction division.

93Further evidence about E. S. Fox's intent and its application of the agreement by its other divisions is found in the evidence of the operation of the cranes in a manner consistent with the application of the O.E. province-wide agreement at the barge project location itself. Mr. Holder's evidence that he was paid in accordance with the province-wide agreement when he assembled the crane and used it to unload steel plates at the pipe shop location, and his subsequent evidence about loading and unloading material from the barge and trucks at that location suggests E. S. Fox intended the agreement to apply beyond the activities of its construction division. Although it would appear that Mr. Holder's nominal employer at that time was E. S. Fox's construction division, the work he was doing was not carried out for the benefit of the construction division of E. S. Fox. Instead the work was performed on behalf of and for the benefit of either E. S. Fox's marine division responsible for the barge project or E. S. Fox's pipe fabrication shop division.

94From the totality of the evidence we have therefore concluded that the intent of the contracting parties to the O.E. province-wide agreement was not to restrict its application to the construction industry. In addition, E. S. Fox itself has not limited the application of this agreement to its construction activities. Our conclusions that the province-wide agreement is not restricted to activities in the construction industry is confirmed by the evidence we heard of the experience of other Local 793 members employed by other OEA contractors. That evidence also uniformly indicates that the application of the province-wide agreement is not restricted to the construction industry or activities carried on within that industry.

95This then leads us to the employer's submissions that there is another restriction in the language of the collective agreement which indicates that the collective agreement is not applicable to the work on the barge. It was argued that the collective agreement is not applicable because the work on the barge was not work performed by an "employer engaged in the steel erection or mechanical installations business" as set out in the introductory words of Schedule "B". It was asserted that the work was not work that could be characterized as "steel erection" or "mechanical installation".

96We are not persuaded by that argument for two reasons. First, there is no doubt that E. S. Fox is an employer "engaged in the steel erection or mechanical installation business within the Province of Ontario". That may not be the only activity of E. S. Fox. The fact that an employer also engages in other activities however, is irrelevant to the interpretation and application of this collective agreement. The fact that E. S. Fox engages in other activities does not detract from the fact that it is also an employer engaged in the steel erection or mechanical installation business within the Province of Ontario.

97Secondly, and notwithstanding the fact that the identity of the employer at the project was E. S. Fox's "marine division", the work that occurred on the barge can properly be characterized as steel erection or mechanical installation. E. S. Fox sought to characterize this work as "ship building", "ship repair", or "ship refitting". We consider those descriptions to be misnomers. Certainly with respect to those first two terms, E. S. Fox was neither building nor repairing the barge. Rather, it was engaged to install a self-unloading conveyor system on the barge. That activity may perhaps be characterized as "refitting" the barge. The refitting however involved steel erection and mechanical installation. The installation of the conveyor system and the changes made to the barge to convert it to a self-unloading barge involved work that would typically be characterized as steel erection and mechanical installation if it were to be performed within an industrial facility or as part of a new construction project. That self-unloading system was made of steel and the hoisting and crane work involved with the installation of that system can be said to be steel erection. The fact that such work took place on a chattel rather than in relation to real property does not affect the fact that the work continued to be steel erection or mechanical installation. Moreover, the fact that it was performed by E. S. Fox’s marine division simply means that this division at the time was an "employer engaged in steel erection or mechanical installation" within the meaning of the collective agreement. We reject the suggestion implicit in the employer's submissions that because steel erection or mechanical installation is not the only or not the typical or preponderant activity of an employer, the employer is therefore not engaged in the steel erection or mechanical installation business.

98For all of these reasons we find that the O.E. province-wide collective agreement does apply to the work on the barge. E. S. Fox has admitted that it did not employ Local 793 members on the job to operate the equipment. Local 793's grievance is therefore allowed. The Board will remain seized of the issue of damages in the event the parties are unable to resolve that issue.

DECISION OF BOARD MEMBER F. B. REAUME; April 21, 1993

1. I strongly dissent from the majority decision with respect to File No. 3256-91-G.

2. It is clear to me, and the majority decision fails to change this, that the work in question is outside the Provincial Collective Agreement the respondent employer is party to with the applicant union.

3. The preamble of the Provincial Collective Agreement clearly shows that the collective agreement is intended to apply only to employees of the employers engaged in either the construction industry or equipment rental (business) within the Province of Ontario. Nothing in the recognition provisions acts to extend the coverage of the agreement beyond either the construction industry or equipment rental (business). Under article 2.1 the union must show where it has bargaining rights. As far as E.S. Fox is concerned, these rights were clearly stated in the last agreement signed between the parties just prior to the execution of the Operating Engineers province wide collective agreement in 1978. In this "pick-up" agreement signed by the parties to this grievance in May of 1978, it was agreed that (as far as E. S. Fox was concerned) the Provincial Agreement "shall apply in all sectors of the construction industry as defined in section 106(c) of the Labour Relations Act and the Crane Rental Business, save and except ... of the construction industry". We have no evidence of the further extension of this understanding between the parties after May of 1978.

4. Furthermore, with respect to the preamble of the Operating Engineers' Provincial Agreement, there are only two groups of employers referenced, those engaged in equipment rental (a service business) and those engaged in the construction industry. Since Schedule "A" clearly deals with the former group, it stands to reason that the balance of the schedules must deal with employers engaged in the construction industry. Further evidence of this two group division is confirmed by a review of the schedules. Schedule "A" provides a seniority clause which all the other schedules, as is customary in the construction industry, do not. Thus all the schedules from "B" to "0" should be recognized as pertaining to the construction industry.

5. I need only point out that the periodic use of members of the union outside construction (even on ship repair or refitting) under the terms of Schedule "B" must be taken with the knowledge that employers often use construction employees on work outside their agreement as needed especially in emergencies, during bad weather, or to avoid lay-offs, for the mutual good of the company and the employee. E.S. Fox applied the terms of Schedule "B" so as to ensure a satisfied employee as per the normal practice in the industry.

6. The bold assertion by Mr. J. Kennedy of the Operating Engineers, particularly in light of the make-up of the panel, that it was the intent of the union and "clearly understood" by all parties that the province-wide collective agreement would apply to all work performed by all contractors bound to the agreement, is to say the least enlightening. The best evidence we have to the contrary, although not given personally at the hearing by an E.S. Fox or Ontario Erectors' Association representative, is the clear and deliberate action by the employer in removing an Operating Engineer employee from the job in question prior to the assignment of work to another union in an all-employee voluntary agreement arrangement. They did it openly and obviously did not "clearly understand" they were bound in any way by the Operating Engineers Agreement for their barge refit. I do not doubt it was the union's intent as stated above by Mr. Kennedy, but a number of employers would put the Operating Engineers to strict proof of their bargaining rights even outside the I.C.I. sector of the construction industry. Mr. Kennedy should not be surprised at my skepticism with regard to this evidence, since the Ontario Erectors' Association does not even give this recognition to their principle trade-agreement namely the Structural Ironworkers. Perhaps Mr. Kennedy meant to say "all construction work", perhaps not.

7. The recognition clause deals as well with the general maintenance of tools or equipment which in principle applies to all construction trades and does nothing to determine the scope of the agreement. The recognition clause in 2.1 refers to "all employees of the employer for whom the union has bargaining rights etc.". In my opinion the union has failed to show that it has bargaining rights with E. S. Fox outside "all sectors of the construction industry as defined in the Labour Relations Act and the Crane and Equipment Rental Business".

8. I can only conclude that the application of the province-wide agreement is clearly restricted to the construction industry or activities carried on within that industry, and crane and equipment rental and does not apply therefore to the barge refit since it is clearly outside the scope of the provincial agreement.

9. For the above reasons, I would have dismissed the grievance.