United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry v. KMT Technical Services, 1993 CanLII 8035

[1993] OLRB REP. APRIL 344

3208-92-R The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Applicant V. KMT Technical Services, a division of 839197 Ontario Limited, Responding Party

BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members R. W. Pirrie and P. V. Grasso.

APPEARANCES: Laurence C. Arnold and Robert Humphreys for the applicant; Bruce Pollock, Lorna Cuthbert and John Pevec for the responding party.

DECISION OF THE BOARD; April 19, 1993

1. The title of proceedings is amended to reflect the correct names of the parties: "The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, and the Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada ("the union" or "the applicant"); and, "KMT Technical Services, a division of 839197 Ontario Limited" ("the company").

2. This is an application for certification in which the company has raised the issue of the constitutional jurisdiction of this Board over the company's labour relations.

3. The company is engaged, among other things, in the maintenance and repair of ships. "Shipping and Navigation" is a federal head of power under section 91(10) of the Constitution Act, 1867. The company asserts that its activities are "vital", "essential", or "integral" to shipping and, therefore, within federal jurisdiction. In the alternative, the company submits that it is engaged in a "local work or undertaking" of a kind which is expressly excluded from provincial jurisdiction under section 92(10)(a) of the Constitution Act, 1867, i.e. a work or undertaking "... connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province ...". Such undertakings fall within federal jurisdiction under section 91(29) of the Constitution Act, 1867.

The Facts

4. The only witness to testify was Mr. John Pevec, the individual responsible for the company's business operations. The company commenced operations in November or December of 1989. Its shares are owned fifty per cent by Mr. Pevec and fifty per cent by Mr. George Kirchmair. Mr. Kirchmair is also the sole shareholder of Kirchmair Machine & Tool Co. Ltd. ("Kirchmair"). Kirchmair is a machine shop located at 1018 Gladwish Drive, Sarnia, Ontario. Kirchmair shares this business address with the company, and the company utilizes some of Kirchmair's facilities, both directly and with Kirchmair acting as an occasional subcontractor. When working on Kirchmair's premises, the company's employees perform welding and mechanical tasks. All machining is done by Kirchmair. Kirchmair also handles the company's payroll. On the date of application, the company employed ten employees, nine of whom were in the agreed upon bargaining unit.

5. The company's operations can be divided into two broad categories: ship maintenance and repair, and industrial work. The quantity of work attributable to each category has varied since the inception of the company's operations. From November or December of 1989 to April of 1991, ship maintenance and repair constituted approximately 60 per cent of the company's work, with the remaining 40 per cent being industrial work. For the period April 1991 to April 1992, the former rose to 90-95 per cent of the company's overall sales. In the current fiscal year Mr. Pevec anticipates that approximately 95 per cent of the company's sales will be derived from ship maintenance and repair.

6. Mr. Pevec identified two major customers: ULS Corporation ("ULS") and Enerchem Transportation ("Enerchem"). "ULS", the Board was told, is an abbreviation of Upper Lakes Shipping. ULS operates self-unloading bulk carriers and straight back bulk carriers in the Great Lakes and along the eastern seaboard. Enerchem has among its fleet class 2 chemical carriers which are licensed to sail worldwide. Mr. Pevec testified that the company has worked on both lake freighters and ocean going vessels.

7. The company's shipping repairs are of three types: piping, mechanical and plating. Piping constitutes about 75 to 80 per cent of the total, with the balance being divided equally between mechanical and plating. Piping may involve work on air piping, ballast lines, steam lines, general service lines, lube oil lines, fuel lines, sewage lines, steam tracing or hydraulics.

8. Air piping is used for general service air or in starting the ship's main engines or generators. Ballast lines involve a series of pipes that are necessary to the raising and lowering of a ship when it is being loaded or unloaded. Steam lines may be used for propulsion turbines, generators, heating systems, fuel oil systems or for heating cargo to prevent it from solidifying. General service lines are involved in cooling water, cooling fuel nozzle tips on diesel powered ships, in refrigeration systems, fire lines, and for carrying domestic water. Lube oil lines are found in the main engines, generators and electrical compressors. Fuel lines carry fuel to the ship's main engines, boilers, generators, cargo pumps and direct drive machinery. Steam tracing may be utilized, for example, to keep particular products at a constant temperature when being carried through pipes. Piping may also be found in the ship's hydraulic lines, and may be used in raising and lowering anchors, cargo and booms.

9. The dependency of a vessel on any of these systems varies. Steam lines are more essential to the running of a steamship than they are to a diesel powered ship. Likewise, not all ships utilize hydraulics in loading and unloading cargo. Fuel lines would however be critical to the operation of most ships. Mr. Pevec testified that the company is involved in the maintenance and repair of piping in respect of all types of ships whether, for example, propelled by steam or diesel or loaded and unloaded manually or by hydraulics.

10. The company's mechanical work consists of rebuilds and overhauls of pumps used to circulate water or fuel or in connection with hydraulics for use in loading and unloading. Other mechanical work may involve repairs to engines or to unloading equipment. Plating has only been performed by the company recently. It may involve both internal or external ship side plating. In sum, according to Mr. Pevec, the company performs work on "... virtually every aspect of a ship except electronics and electrical".

11. The company's shipping related work varies as to location and time of year. Work may be carried out on board ship, on Kirchmair's premises or on the premises of a subcontractor. The ship may be tied up in port for a matter of hours or days, it may be docked for the winter months (from December or January to March or April), or it may be travelling between ports. Mr. Pevec referred to the last two types of activities as "running repairs", adding that the company "goes wherever the job is".

12. During the first 15 to 17 months of its operation, 75 per cent of the company's ship maintenance and repair work was performed for ships tied up in port in Ontario, Quebec and P.E.I. The bulk of this work was performed off the ship either in Kirchmair's premises or in those of a subcontractor. The remaining 25 per cent was winter work. In the case of the P.E.I. contract, the work involved the fabrication and delivery of hatch covers. Inspection and measuring took place on board ship, but fabrication occurred in the shop. The covers were delivered to P.E.I. and installed by a third party. Another job in the first year involved "canal fendering", the preparation of wooden brackets to protect the sides of a ship from damage. Wood was purchased and cut by the company and installed on a ship tied up in Sarnia. At first, Mr. Pevec could not recall whether any work was done on board a ship in transit, but he later suggested that there may have been one or two small "travelling" jobs.

13. In the fiscal year 1991-1992, 75 per cent of the company's ship maintenance and repair work was done while ships were laid up for the winter months. Three-quarters of the remaining work was performed on board ships in harbour, with the balance being performed on board ships in transit.

14. By the completion of the current fiscal year, Mr. Pevec estimates that 80 per cent of the company's ship maintenance and repair work will have been performed in the winter months. Of the remaining 20 per cent, 60 per cent will have been performed while ships were tied up in port and 40 per cent while travelling between ports. About 10 per cent of this latter figure will have been attributable to a contract for repairs on board a ship travelling between Sarnia and Port Huron, Michigan. In the company's three and a half year existence, the Sarnia - Port Huron contract will have been the only work performed on board a vessel travelling between ports not entirely within Ontario. Work has also been performed in 1992-1993 for ships docked in Hamilton, Port Colborne and Montreal.

15. When ship repairs are performed in the summer months, a ship's engineer or welder may assist the company's employees, but Mr. Pevec said that this is more the exception than the rule. In the winter months, there may only be a watchman or "ship keeper" on board. This individual may or may not assist depending upon availability.

16. The company's industrial work is entirely local in nature and performed year round, consisting, for example, of fabricating or repairing parts for use in the chemical or food processing industries.

17. The same employees may be called upon to perform both shipping and industrial work. At the time of the application eight of the nine employees in the bargaining unit were classified as pipefitter/welders. One employee was designated as a labourer. Mr. Pevec testified that the skills demanded of the work force can change with the job. Mechanical work will generally require mechanical people, while plating work may require boilermakers. Mr. Pevec testified that he tries to obtain the most versatile employees possible.

18. The company generally obtains its personnel in Sarnia. This was true of all of the employees in the bargaining unit at the time of the application. The company's employees are then dispatched to other locations as needed, although in some limited instances, personnel have also been hired at the location in which the ship is docked.

19. The only one of the company's competitors which was identified in these proceedings was Hamilton Marine. As indicated below, Hamilton Marine was the subject of an earlier decision of the Board, differently constituted, which dealt with a similar constitutional issue.

The Parties' Submissions

The Company

20. The company's "primary" argument is that its work is integrally related to shipping and, therefore, within federal jurisdiction under section 91(10) of the Constitution Act, 1867.

21. According to company counsel where, as here, the undertaking in question is not directly involved in shipping, two issues arise. First, is there a core federal undertaking present. Counsel submits that this first requirement is met through the nature of the company's customers, i.e. shipping companies operating both within and beyond the boundaries of the Province of Ontario. The second issue is whether the activities of the undertaking in question are "vital", "essential" or "integral" to the core federal undertaking. This requirement, counsel submits, is satisfied by the fact that it is the company's business to "keep ships running".

22. In support of the latter position, counsel submits that over the last couple of years approximately 20 per cent of the company's repair activities have been performed on board ships in transit. Even more important, however, is the nature of the repairs themselves. Counsel points out that most of the company's work involves piping, which is essential to the ongoing safe and efficient operation of the vessel. By way of example, counsel refers to the cooling of lube oil and the carriage of fuel, noting that "if the fuel doesn't get to the engine, the ship doesn't go".

23. Counsel describes the company's industrial work as purely incidental in nature, and reminds the Board that not all of an undertaking's work must be "federal" for the undertaking to be federally regulated. The focus is on the normal and habitual nature of the work, and not incidental factors. The normal and habitual nature of the company's work according to counsel, is ship repairs and, in particular, the maintenance and repair of piping.

24. Counsel for the company relies on the following cases and materials:

Laskin's Canadian Constitutional Law (5th ed., 1986, Finklestein), pp. 631-634.

Reference Re Industrial Relations and Disputes Investigations Act, 1955 CanLII 1 (SCC), [1955] 3 D.L.R. 721 (S.C.C.) (the Stevedore's case).

Northern Telecom Ltd. v. Communications Workers of Canada et al. (1979), 1979 CanLII 3 (SCC), 98 D.L.R. (3d) 1 (S.C.C.) (Northern Telecom "No. 1").

Northern Telecom Canada Ltd. et al. v. Communication Workers of Canada et al. (1983), 1983 CanLII 25 (SCC), 147 D.L.R. (3d) 1 (S.C.C.) (Northern Telecom "No. 2").

Hamilton Marine, [1985] OLRB Rep. Aug. 1228.

International Longshoremen's Association, Local 1925 v. Brown and Ryan Limited and International Longshoreman's Association, Local 1926 v. Eastern Canada Stevedoring (1963) Ltd. 66 CLLC 901 (C.L.R.B.).

R. v. Nova Scotia Labour Rel. Bd., Ex Parte J. P. Porter Co. Ltd. (1968), 1968 CanLII 728 (NS SC), 68 D.L.R. (2d) 613 (N.S.S.C.).

Re North Canada Air Ltd. and Canada Labour Relations Board (No. 1) (1980), 1980 CanLII 4280 (FCA), 117 D.L.R. (3d) 206 (F.C.A.).

Canadian Communications Structures Inc., [1992] OLRB Rep. July 777.

Re Bernshine Mobile Maintenance Ltd. and Canada Labour Relations Board (1985) 1985 CanLII 5507 (FCA), 22 D.L.R. (4th) 748 (F.C.A).

25. As a "secondary" argument, counsel submits that the company is engaged in a work or undertaking "... connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province ...", within the meaning of section 92(10)(a) of the Constitution Act, 1867. As indicated above, such undertakings fall within federal jurisdiction under section 91(29) of the Constitution Act, 1867.

26. Counsel submits that federal jurisdiction over interprovincial undertakings is not limited to transportation or "transportation type" undertakings, but may involve those "connected with" transportation. While counsel says that "only one per cent" of the company's activities have involved repairs on board vessels in transit beyond Ontario, i.e. across the Detroit River from Sarnia to Port Huron, the company is "ready, willing and able" to perform such services and has done so whenever requested by the customer. Reference is made to the decision of the Court of Appeal in Re Ottawa-Carleton Regional Transit Commission and Amalgamated Transit Union, Local 279 et a!. (1983) 1983 CanLII 1936 (ON CA), 44 O.R. (2d) 560 (the "OC-Transpo" case).

27. Accordingly, counsel submits, the Board is without jurisdiction to certify the union as the bargaining agent of the company's employees.

The Union

28. Union counsel rejects the submission that the company's activities are "vital" or "essential" to shipping in the way demanded by the authorities, and suggests that "the essence of the case is that the Board will finally have to decide whether all ship repair activity is federal or provincial". By this, counsel refers to the Board's earlier decision in Hamilton Marine, supra, relied on by the company.

29. In Hamilton Marine the Board ruled that it lacked the constitutional jurisdiction necessary to declare a sale of a business or to make a related employer declaration in respect of a transaction between two corporate subsidiaries of ULS. For reasons discussed more fully below, the Board found that the alleged purchaser of the ship repair and maintenance business, Hamilton Marine, fell within federal jurisdiction, because:

[t]he function of the ships as a method of transportation is vitally and essentially affected by the activities of Hamilton Marine. Allowing for the wide interpretation usually given to shipping and navigation under head 10 of section 91, the Board finds that Hamilton Marine's operations are an essential component to operating a federal work or undertaking, navigation and shipping, and that the labour relations of its employees are governed not by the Labour Relations Act, but rather by the Labour Code, Canada (para. 24, p. 1236).

In Hamilton Marine, the Board also accepted the alternative basis for federal jurisdiction advanced by company counsel in the present case, i.e. that "the pith and substance of Hamilton Marines ~ business is a work or undertaking which provides running repairs which connect Ontario with any other or other of the provinces or extending beyond the limits of Ontario" (para. 26, p. 1237).

30. Union counsel distinguishes the facts in Hamilton Marine from those in the present case on a number of grounds, including the nature and extent of the "running repairs" performed by Hamilton Marine and the amount of such repairs performed on board ships in transit beyond the boundaries of the province. Unlike Hamilton Marine, counsel suggests, the bulk of the company's repairs are performed in dry dock and are not "immediately essential" to the running of the ship. Union counsel draws an analogy between repairs performed in port or dry dock and construction work, which has generally been found to fall within provincial jurisdiction.

31. Counsel describes the company's alternative argument under sections 92(10)(a) and

91(29) of the Constitution Act, 1867 as "something of a red-herring". He submits that in order for provincial jurisdiction to be excluded under section 92(10)(a), the company must be engaged in an interprovincial or international undertaking and that the only such undertaking present is shipping. Accordingly, the company can only succeed on this argument if it also succeeds on its first argument under section 91(10). Dealing with the argument on its merits, however, union counsel submits that one international trip in the company's three and a half year history does not an interprovincial or international undertaking make.

32. Union counsel relies on the following authorities:

Montcalm Construction Inc. v. Minimum Wage Commission et al. (1978), 93

D.L.R. (3d) 641;

Hogg, Constitutional Law of Canada, (1977) p. 324;

Toronto Electric Commissioners v. Snider et a!. 1925 CanLII 331 (UK JCPC), [1925] A.C. 396;

Industrial Relations and Disputes Investigation Act v. Eastern Canada Stevedoring Company Limited, 1955 CanLII 1 (SCC), [1955] S.C.R. 529 (the "Stevedore's case);

R. F. Welch British Columbia Limited and Construction & General Labourers' Union, Local 602, [1982] 1 Can LRBR 466 (B.C.L.R.B.);

Wakeham & Son Ltd., [1981] OLRB Rep. July 1036;

Bachmeier Diamond and Percussion Drilling Co. Ltd. and Beaverlodge District of Mine and Smelter Workers' Local Union No. 913, (1962) 1962 CanLII 309 (SK CA), 35 D.L.R. 241 (Sask. C.A.);

R. v. Ontario Labour Relations Board, Ex Parte Dunn, (1963) 1963 CanLII 616 (ON HCJ), 2 O.R. 301 (Ont. H.C.J.);

R. v. Ontario Labour Relations Board Ex Parte Underwater-Gas Dev. Ltd., 1960 CanLII 145 (ON CA), [1960] OR. 416 (Ont. C.A.);

Tymac Launch Service Ltd. and Canadian Brotherhood of Railway, Transport and General Workers, Local No. 400, [1980] 3 Can LRBR 552 (B.C.L.R.B.).

33. Having regard to the foregoing, and to the general rule that labour relations are prima facie within provincial jurisdiction, counsel submits that the Board has the jurisdiction necessary to certify the union as the employees' bargaining agent.

Decision

34. Labour relations do not form a discrete head of power under the Constitution Act, 1867. They are considered to fall within provincial competence over "Property and Civil Rights", except to the extent that they form an integral part of another aspect of federal jurisdiction. Thus, provincial competence over labour relations is the rule and federal jurisdiction is the exception:

Construction Montcalm, sup ra, at page 652.

35. Where the undertaking in question is not itself a "core federal undertaking" (i.e., one which falls within the powers specifically enumerated in section 91 of the Constitution Act, 1867), its labour relations may still be federally regulated if its activities have a sufficient connection to a core federal undertaking. The classic example is the Stevedore's case, supra, where the Supreme Court of Canada upheld the predecessor to the Canada Labour Code, R.S.C. c. L-1 as valid federal legislation, and ruled that it applied to the employees of a local stevedoring company because of the intimate involvement of their activities with those of the shipping industry.

36. The cases also make clear that "niceties of corporate organization are not determinative": Northern Telecom "No. 1", supra, at page 15. A "subsidiary" enterprise may fall within federal jurisdiction even in the absence of a corporate connection to a core federal undertaking, and the labour relations of a single corporate undertaking may be divided along constitutional lines. In each case, the issue is the degree of connection between the activities of the subsidiary and those of the core federal undertaking.

37. A number of phrases have been relied on to characterize the degree of connection necessary to trigger federal jurisdiction. These include "vital", "essential", "integral" or "necessarily incidental" to the core federal undertaking. Divorced from their factual contexts, however, these terms may obscure more than they reveal. For example, an airline cannot operate without aircraft, but the labour relations of aircraft manufacturers fall within provincial competence. It is necessary, therefore, to probe beneath the surface of these phrases to see precisely what it is that they are intended to capture.

38. As noted by the Supreme Court of Canada in Northern Telecom "No. 1",the focus must be on the "normal or habitual activities of [the "subsidiary" undertaking] as a going concern", and "to the practical and functional relationship of those activities to the core federal undertaking". In Northern Telecom "No. 2", the Court stated:

The principle and dominant consideration in determining the application of the principle enunciated in the Stevedore's case is an examination of "the physical and operational connection" between the installers of Telecom and the federal core undertaking, the telephone network, and in particular the extent of the involvement of the installers in the establishment and operation of the federal undertaking as an operating system. (p. 26)

In making this assessment, the Court said that one must look to the "... continuity and regularity of the connection and not ... be influenced by exceptional or casual factors" (page 15).

39. The result in Northern Telecom "No. 2" was a finding that Northern Telecom installers working on Bell Canada's premises fell within federal jurisdiction for labour relations purposes. The majority decision was based upon the following facts: 80 per cent of the installers' work was carried out on the premises of Bell Canada, a core federal undertaking, and involved contact with Bell Canada employees; there was a very close, tightly scheduled integration of the installers' services with the acceptance of those services by Bell's employees without interruption of the Bell network; and the expansion or replacement of Bell's telecommunications equipment by the installers was part of a continuous process of expansion, updating and renewal of the Bell system which was vital to its operations as a going concern. Despite these factors, however, Dickson J., in a concurring judgement, suggested that the case was "very close to the boundary line", and two other members of the Court felt that it was over the line.

40. To similar effect is a more recent decision of the Supreme Court of Canada in Central Western Railway Corporation v. United Transportation Union et al. (1990), 1990 CanLII 30 (SCC), 76 D.L.R. (4th) 1. That case involved a challenge to the jurisdiction of the Canada Labour Relations Board to grant successor nghts to a trade union representing employees of the Canadian National Railway following the severance and sale of a 105 mile segment of CNR track situate wholly within the Province of Alberta. Speaking for eight members of the Court, Dickson C.J.C. stated that the test developed in Northern Telecom "No. 1" "... involves looking for a practical or functional integration between the core federal work or undertaking and the employees in question", and that "if work occurs simultaneously between the two enterprises functional integration may exist" (page 20). On the facts, the Court found that each of the two railways "operated independently within its own sphere" and, unlike Northern Telecom "No. 2", could not be seen as working together to provide a single service. For these and other reasons, the Court found in favour of provincial jurisdiction.

41. Applying the tests developed in Northern Telecom "Nos. 1 & 2" to the facts at hand, the Board is prepared to accept, without deciding, that there are core federal undertakings present in the form of international or interprovincial shipping undertakings. (The Board notes, however, that it was supplied with no information as to the percentage of the company's sales attributable to such undertakings.) The real issue, however, is whether the company has demonstrated a sufficient connection between its activities and those of its federal customers.

42. A review of the evidence reveals that the overwhelming majority of the company's shipping related sales (75 to 80 per cent) consists of repairs performed for ships docked over the winter months, when the ships are not in operation. On average, for the last two years, only 6 to 8 percent of the company's shipping repairs (and a slightly smaller percentage of the company's overall sales) occurred on board ships in transit. In these circumstances, it is difficult to view the company's activities as "vital" or "essential" to the core federal undertakings as "operating systems". Unlike the situation in Northern Telecom "No. 2", there is little need for the kind of close "co-ordination" or "tightly scheduled integration" of the company's activities with those of its customers to ensure uninterrupted service. This is because the bulk of the company's work is performed when the ships are otherwise out of service.

43. Also significant from a labour relations perspective is the dearth of evidence of contact between the company's employees and those of its customers. The predominant parts of the company's activities are performed either apart from, or in the absence of, the employees of the federal undertakings. This is equally true whether the company's winter work is viewed in isolation or taken together with the additional, but relatively insubstantial, quantity of repairs performed for ships tied up in port. In the two examples cited in the first year, the company's work appeared to involve a significant degree of fabrication away from the ship and somewhat less work carried out on board the ship itself.

44. The picture we are left with then is of a company engaged in activities which may be of importance to its customers but which are generally carried out in an autonomous and unintegrated fashion, separate and apart from the federal undertakings' ongoing operations.

45. By way of contrast, in Hamilton Marine a substantial quantity of the subsidiary's work (approximately 50 per cent) consists of "running repairs" performed on board ships in transit. Indeed, the Board found that Hamilton Marine was created to carry out such repairs, the whole purpose of which was "... to keep the ship working on its tasks and to keep it out of dry dock" (page 1323, para. 18). In this way, ULS would not be losing an average of $1,000.00 an hour for ships that were stopped or "... spending between 3 and 4 million dollars each year on repairs done by outside contractors" (page 1229, para. 6). Thus, it was the Board's conclusion that "the running repairs provided by Hamilton Marine are essential to the safe and continued operations of the ship which received these services" (page 1236, para. 23) (emphasis added).

46. The decision of the Supreme Court of Canada in the Stevedore's case also does not assist the company. Critical to the outcome of that case was the central role played by stevedores in the service provided by the shipping companies. The business of the steamship companies was (in the words of Estey J.) "the transportation of freight and the loading and unloading thereof' (page 759) (emphasis added). In his judgement, Taschereau J. observed that "the transportation of goods by water by means of ships, is an operation entirely dependent on the services of the stevedores of the company and both are so closely connected that they must be considered as forming part of the same business" (page 735) (emphasis added). The Court also noted that the role of the stevedores in the services provided by the shipping companies was reflected in the fact that their work on board ship was carried out under the direction of the ship's officers. The distinction, then, between the Stevedore's case and the present is between the provision of services to the shipping companies and the participation in the provision of services by the shipping companies. The company is engaged in the former. Stevedores are engaged in the latter.

47. The Board also derives little assistance from the decision of the Nova Scotia Supreme Court in J. B. Porter Co. Ltd. (1968), 1968 CanLII 728 (NS SC), 68 D.L.R. (2d) 613. In that case, the Court's decision that persons engaged in the maintenance, repair and rehabilitation of a federal dredging undertaking at its Dartmouth Depot fell within the ambit of federal labour relations jurisdiction, appeared to rest heavily on the fact that the work was performed within the same corporate vehicle as the core federal undertaking.

48. Similarly, the decisions of the Federal Court of Appeal in North Canada Air, supra, and Bernshine Mobile Maintenance, supra do not advance the company's arguments. In North Canada Air the subsidiary company was involved in the servicing of its parent airline's electronic equipment on an ongoing basis. The evidence was that the parent company's aircraft could not take off unless its avionic equipment had been inspected and certified. This work was carried out by the employees of the subsidiary which was, itself, subject to federal transportation regulations. In Bernshine, the alleged successor's tire maintenance operations were acknowledged by the parties themselves as being "critical" to the operations of the interprovincial trucking undertaking. More importantly, however, they were performed on a 24 hour a day, 365 days a year basis from the interprovincial trucking company's premises using the latter's equipment. Both of these cases involved a level of ongoing operational integration and interdependence which is entirely lacking in the present case.

49. In the result, the Board finds that provincial jurisdiction over the company's labour relations is not precluded by section 91(10) of the Constitution Act, 1867. In reaching this result, the Board finds it unnecessary to rely on the "construction" analogy put forward by the union. As noted by the Federal Court of Appeal in Re Canada Labour Code (1986), 1986 CanLII 3986 (FCA), 34 D.L.R. (4th) 228, the result in such cases as Construction Montcalm, supra, may simply be understood as an expression of the requirement that there be a high degree of ongoing operational integration between two enterprises before federal jurisdiction will arise.

50. The Board's conclusion on the company's first argument also disposes of the second. Works or undertakings "... connecting the Province with any other or others of the Provinces or extending beyond the Limits of the Province ..." within the meaning of section 92(10)(a) of the Constitution Act, 1867 are restricted to transportation or communications undertakings (Hogg P., Constitutional Law (3rd ed.) 1992 pages 22-5). Accordingly, since the company's operations are not within the ambit of federal jurisdiction over "Shipping and Navigation", and do not involve any other transportation or communications undertaking, the company's labour relations do not fall within federal jurisdiction under sections 92(10)(a) and 91(29). Moreover, on the basis of the evidence adduced in these proceedings, we are of the view that the frequency of the company's interprovincial or international work does not satisfy the "regular and continuous" test set out in the OC-Transpo case, supra. This single isolated contract undertaken and completed entirely within the last year is "exceptional", rather than "regular and continuous".

51. Finally, although the parties were unable to direct the Board to any case squarely on point, the Board notes the view expressed by the British Columbia Labour Relations Board that the pattern of provincial certification of ship repair operations performed in the Port of Vancouver and in dry dock is supportable on constitutional grounds: Tymac Launch Service Ltd. v. Canadian Brotherhood of Railway, Transport and General Workers, Local 400, sup ra.

52. For the foregoing reasons, the Board has concluded that the company's operations fall within the ambit of provincial jurisdiction for labour relations purposes. Thus, we have jurisdiction to entertain this application.

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

54. Having regard to the agreement of the parties, the Board also finds that the following constitutes a unit of employees appropriate for collective bargaining:

all employees of 839197 Ontario Limited in its KMT Technical Services Division in the Province of Ontario, save and except forepersons and persons above the rank of foreperson, office, clerical and sales staff, and students regularly employed during the school vacation period.

55. The Board further finds that more than fifty-five per cent of the employees of the responding party in the bargaining unit on February 5, 1993, the certification application date, had applied to become or were members of the applicant on or before that date.

56. A certificate will issue to the applicant.