International Association of Bridge, Structural and Ornamental Ironworkers, Local 736 et al. v. Electrical Power Systems Construction Association et al., 1994 CanLII 9950

Ontario Labour Relations Board

[1994] OLRB Rep. June 752

2584-93-JD; 2658-93-JD; 2659-93-JD; 2660-93-JD; 2661-93-JD; 2662-93-JD

International Association of Bridge, Structural and Ornamental Ironworkers, International Association of Bridge, Structural and Ornamental Ironworkers, Local 736, Applicants v. Electrical Power Systems Construction Association, Ontario Hydro, Canadian Union of Public Employees, Local 1000, Responding Parties; Labourer's International Union of North America, Labourer's International Union of North America, Local 1059, Applicant v. Electrical Power Systems Construction Association; Ontario Hydro; and Canadian Union of Public Employees, Local 1000, Responding Parties; International Brotherhood of Painters and Allied Trades, International Brotherhood of Painters and Allied Trades, Local 1891, Applicant v. Electrical Power Systems Construction Association; Ontario Hydro; and Canadian Union of Public Employees, Local 1000, Responding Parties; Ontario Allied Construction Trades Council, Applicant v. Electrical Power Systems Construction Association; Ontario Hydro; and Canadian Union of Public Employees, Local 1000, Responding Parties; United Brotherhood of Carpenters and Joiners of America, United Brotherhood of Carpenters and Joiners of America, Local 2222, Applicant v. Electrical Power Systems Construction Association; Ontario Hydro; and Canadian Union of Public Employees, Local 1000, Responding Parties; United Brotherhood of Carpenters and Joiners of America, Millwright District Council of Ontario, Applicant v. Electrical Power Systems Construction Association; Ontario Hydro; and Canadian Union of Public Employees, Local 1000, Responding Parties

BEFORE: Jules Bloch, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.

APPEARANCES: Stephen Wahl for International Association of Bridge, Structural and Ornamental Ironworkers, International Association of Bridge, Structural and Ornamental Ironworkers, Local 736; Douglas J. Wray for Labourer's, Labourer's, Local 1059; Painters, Painters, Local 1891; Ontario Allied Construction Trades Council; Carpenters, Carpenters, Local 2222 and Carpenters, Millwright District Council of Ontario; Patrick Moran for Electrical Power Systems Construction Association; Neil Finkelstein, Jeffrey W. Galway and George Vegh for Ontario Hydro; Chris Dassios, John Monger, William Campbell and Dan Heffernan for Canadian Union of Public Employees, Local 1000.

DECISION OF THE BOARD; June 8, 1994

Decision

1. These are applications pursuant to section 93 of the Labour Relations Act ("the Act"). The Canadian Union of Public Employees, Local 1000 ("Power Workers") raised in these proceedings a challenge to the constitutional jurisdiction of the Board to hear and determine all issues with respect to the proper assignment of work jurisdiction pursuant to section 93 of the Act. The Attorneys General of Canada and Ontario were advised of the constitutional question, but neither wished to intervene in these proceedings.

2. On October 26, 1993, this panel made procedural rulings in Board File #3427-92-JD in respect of the Power Workers' request for reconsideration of the reasons for the panel's 1993 bottom line decision dated August 25, 1993, (reasons for which issued November 12, 1993 [reported at [1993] OLRB Rep. Nov. 1167]), regarding an assignment of work to the International Brotherhood of Electrical Workers, Local Union 1788 ("1788"). The Power Workers' Union submitted that the Board did not have the constitutional jurisdiction to decide the work assignment in respect of Hydro's nuclear business. By decision of this panel, dated November 8,1993, the Board consolidated a number of jurisdictional dispute applications (including #3427-92-JD) as they raised similar constitutional arguments in respect of the Board's jurisdiction. This panel directed the Registrar to list for hearing, a preliminary matter raised by 1788 in Board File #3427-92-JD. Local 1788 requested that the Board refrain from hearing the constitutional issue in Board File #3427-92-JD given the stage of the proceedings. The Board heard the preliminary motion on January 27, 1994 and issued a bottom line decision dismissing the Power Workers' request for reconsideration. This decision deals with the Board's constitutional jurisdiction to hear the work assignment issue with respect to the Board files listed in paragraph 3 below.

3. The Board will refer to the applicants in Board File #2584-93-JD as ("Ironworkers"); in Board File #2658-93-JD as ("Labourer's"); in Board File #2659-93-JD as the ("Painters"); in Board File #2660-93-JD as ("OACTC"); Board File #2661-93-JD as ("Carpenters"); in Board File #2662-93-JD as ("Millwrights"). The applicants noted above, save and except the Ironworkers and 1788 (who were represented at the hearing by separate counsel), will be referred to as ("the Council"). The Responding Parties in all the above-noted Board Files will be referred to as ("EPSCA/Ontario Hydro") and the ("Power Workers"). The work in dispute with respect to all the Board Files involved the installation and fabrication of a monorail at the Bruce Nuclear Generating Station.

4. The panel in its November 8, 1993 decision on procedural matters made the following directions:

5. We direct C.U.P.E. in all the above-noted jurisdictional disputes to file with the Board and all the other parties by November 19, 1993, (This direction does not change the time limits in respect of Board File No. 3427-92-JD):

a. a detailed statement of all legal positions and submissions as they affect all the work in dispute;

b. a detailed description of the orders or remedies requested;

c. a statement of all material facts which have not already been placed before the Board during the consultation and on which the applicant relies in respect of orders and remedies requested.

8. Upon receipt of the filings from C.U.P.E., all the other responding parties are directed to file with each other, C.U.P.E. and the Board by November 29, 1993:

a. a statement of agreement or disagreement with each position or submission;

b. a statement as to its position with respect to the orders or remedies requested by the other parties;

c. a statement outlining additional material facts on which the parties rely.

As well the Board, in that decision, consented after the agreement of all the parties, to assume without finding that the Board had jurisdiction to make a determination on the merits of the work assignment. The parties agreed to reserve their rights to argue the constitutional issue on a later date. At the end of the consultation, the Board issued an oral ruling regarding the monorail assignment at Boiler Alley #8.

5. In response to the directions of the Board, the parties filed twenty-three volumes of material facts, legal positions and submissions. In view of the volumes of material facts and the probability of numerous days of hearing, the parties attempted to agree on the facts in dispute. Although this did not prove successful, the parties agreed that all the material facts before us could, for the purpose of the hearing, be treated as evidence. It was agreed that the panel would first hear the arguments based on the material facts and only entertain viva-voce evidence if there were matters directly in dispute and the resolution of the factual disputes would be necessary for the final finding on constitutionality.

6. A majority of the panel (Vice-Chair Bloch dissenting) granted Local 1788 standing in this proceeding. The standing was limited to legal submissions. The Ontario Sheet Metal Workers' Conference was denied standing in this matter by a unanimous panel.

7. The argument, based on the materials facts submitted in respect of the constitutional issue, was heard in Toronto on May 3, 4 and 5, 1994. The parties made extensive submissions before the panel. The Board contacted the parties on May 9,1994 and informed them that it would not require any viva-voce evidence. These submissions have been carefully reviewed by the Board. The citations of the cases referred to by counsel in argument are reproduced below. (Northern Telecom Limited (No. 1) 1979 CanLII 3 (SCC), [1980] 1 S.C.R. 115, 98 D.L.R. (3d) 1 (S.C.C.); Northern Telecom Limited (No. 2) 1983 CanLII 56 (SCC), [1983] 1 S.C.R. 732; 1983 CanLII 25 (SCC), 147 D.L.R. (3d) 1 (S.C.C.); Ontario Hydro 1993 CanLII 72 (SCC), [1993] 3 S.C.R. 327; OLRB Rep. Oct. 1071; 107 D.L.R. (4th) 457 (S.C.C.); Ontario Hydro, [1994] OLRB Rep. Mar. 277; Montcalm Construction Inc. 1978 CanLII 18 (SCC), [1979] 1 S.C.R. 754, 93 D.L.R. (3d) 641 (S.C.C.); T-D Bank, [1992] OLRB Rep. Oct. 1123, App. for JR dis'd March 17, 1993 (Ont. Div. Ct.); Leave to appeal dis'd June 14, 1993 (Ont. C.A.); Leave to appeal dis'd Jan. 27, 1994 (S.CC.); Re Canada Labour Code (1986) 1986 CanLII 3986 (FCA), 72 N.R. 348 (Fed. C.A.), 34 D.L.R. (4th) 228; Vipond Automatic Sprinkler (1976) 1976 CanLII 305 (AB SCTD), 67 D.L.R. (3d) 381 (Alta. S.C.); Henuset Rentals Ltd. (1979) 79 CLLC 14,194, 1979 CanLII 2170 (SK QB), 96 D.L.R. (3d) 651 (Sask. Q.B.) affd (1980) 1980 CanLII 2289 (SK CA), 119 D.L.R. (3d) 639 (Sask. C.A.); W. Rourke Ltd., [1983] OLRB Rep. Oct. 1711; Manitou Mechanical Ltd. [1978] OLRB Rep. July 657; The Letter Carriers' Union of Canada 1973 CanLII 183 (SCC), [1975] 1 S.C.R. 178; Reimer Express Lines Limited (1987) 69 di 161; Bernshine Mobile Maintenance Ltd. (1985) 1985 CanLII 5507 (FCA), 62 N.R. 209, [1986] 1. F.C. 422 (Fed. C.A.); Highway Truck Service Ltd. (1985) 62 N.R. 218 (Fed. C.A.); City of Kelowna (1974) 1974 CanLII 1160 (BC SC), 42 D.L.R. (3d) 754 (B.C.S.C.); Field Aviation Co. Ltd. (1974) 1974 CanLII 240 (AB SCTD), 45 D.L.R. (3d) 751 (Alta. S.C.) aff'd (1975) 1974 ALTASCAD 62, 49 D.L.R. (3d) 234 (Alta. S.C.A.D.); National Protective Service Company Limited, [1987] OLRB Rep. Feb. 245; Canadian Communications Structures Inc.; [1992] OLRB Rep. July 777; Master Insulators' Association of Ontario Inc., [1980] OLRB Rep. Oct. 1477; National Elevator and Escalator Association, [1991] OLRB Rep. Apr. 555; Abitibi-Price Inc., [1986] OLRB Rep. Dec. 1613; Briecan Construction Limited, [1989] OLRB Rep. May 417; Windsor Airline Limousine Services Ltd. (1980) 1980 CanLII 1897 (ON HCJ), 117 D.L.R. (3d) 400 (Ont. Div. Ct.); Toronto Electric Com'rs v. Snider et al 1925 CanLII 331 (UK JCPC), [1925] 2 D.L.R. 5; Cargill Grain Co. Ltd. (1989) 1989 CanLII 5237 (FCA), 63 D.L.R. (4th) 174 (Fed. C.A.), [1990] 1 F.C. 511 (Fed. C.A.); Reference Re Validity of Industrial Relations and Disputes Investigation Act (Can.) and Applicability in Respect of Certain Employees of Eastern Canada Stevedoring Co. Ltd. (1955) 1955 CanLII 1 (SCC), 3 D.L.R. 721 (S.C.C.), [1955] S.C. R. 529; Re United Association of Journeymen & Apprentices of the Plumbing, Steamfitting & Pipefitting Industry of the United States and Canada, Local 682 and United Steelworkers of America, Local 1064 et al (1992) 1992 CanLII 8539 (NS CA), 89 D.L.R. (4th) 694 (N.S.C.A.); ATM Automatic Bank Teller (1985) 1985 CanLII 605 (BC CA), 22 D.L.R. (4th) 282 (BCCA); Service D'Entretien Avant-Garde Inc. (1985) 1986 CanLII 3914 (QC CS), 26 D.L.R. (4th) 331 (Que. S.C.); Cannet Freight Cartage Ltd. (1975) 1975 CanLII 2218 (FCA), 60 D.L.R. (3d) 473 (FCA), [1976] 1 F.C. 174 (Fed. C.A.); Ontario Hydro (1989) 1989 CanLII 3257 (ON HCJDC), 69 O.R. (2d) 268 (Ont. Div. Ct.) rev'd I O.R. (3d) 737 (Ont. C.A.); Ontario Hydro, [1991] OLRB Rep. Apr. 578; Ontario Hydro (1991) 1991 CanLII 6037 (ON CA), 1 O.R. (3d) 737 (Ont. C.A.), affd (1993) 107 D.L.R. (4th) 457 (S.C.C.); Bachmeier Diamond and Percussion Drilling Co. Ltd. (1962) 1962 CanLII 309 (SK CA), 35 D.L.R. (2d) 241 (Sask. C.A.); Henuset Rentals Ltd. (1980) 119 D.L.R. (3d) 639 (Sask. C.A.), leave to appeal refused (1981) 37 N.R. 358 (S.C.C.); Re Attorney-General of Nova Scotia and Maritime Engineering Ltd. et al (1980) 1979 CanLII 2551 (NS CA), 105 D.L.R. (3d) 158 (N.S.C.A.); Toronto Dominion Bank, [1993] OLRB Rep. June 578, leave to appeal dis'd June 14, 1993 (Ont. C.A.), leave to appeal dis'd Jan. 27, 1994 (S.C.C.); Reclamation Management Canada Ltd. et al, [1993] OLRB Rep. June 549; Vibration Assessment Limited, [1989] OLRB Rep. Feb. 223; The Anderson Company et al, [1979] OLRB Rep. Nov. 1033; Northern Communications Services Limited, [1991] OLRB Rep. Sept. 1089; Regina v. Ontario Labour Relations Board, Ex parte Nick Mansey Hotels Ltd. (1970) 1970 CanLII 478 (ON CA), 13 D.L.R. (3d) 289 (Ont. C.A.); Cedarvale Tree Services Ltd. (1971), 1971 CanLII 341 (ON CA), 22 D.L.R. (3d) 40 (Ont. C.A.); Crosbie Offshore Services et al. [1981], 2 Can LRBR 38; K-Mart Canada Limited, [1981] OLRB Rep. Feb. 185; Re Jordan et al, and York University Faculty Association et al (1977) 1977 CanLII 1837 (ON HCJDC), 84 D.L.R. (3d) 557 (Ont. Div. Ct.); Ontario Hydro et al, [1993] OLRB Rep. May 442; Re Communal Property Act 1949 CanLII 473 (AB SCTD), [1949] 1 W.W.R. 900 (Alta. D.C.); R. v. Thomas (1990), 1990 CanLII 141 (SCC), 108 N.R. 147 (S.C.C.), [1990] 1 S.C.R. 713; Cuddy Chicks Ltd. (1991), 1991 CanLII 57 (SCC), 81 D.L.R. (4th) 121 (S.C.C.); The Society of Ontario Hydro Professional and Administrative Employees v. Ontario Hydro [1988] OLRB Rep. Feb. 187; R. v. Nova Scotia Labour Relations Board (1968), 1968 CanLII 728 (NS SC), 68 D.L.R. (2d) 613 (N.S.T.D.); National Protective Service Company Limited [1987] OLRB Rep. Feb. 245; Wardair Canada (1975) Ltd. et al (1979) 1979 CanLII 4076 (FCA), 97 D.L.R. (3d) 38 (Fed. C.A.); Canadian Pacific Railway Company v. Attorney General for British Columbia et al., 1949 CanLII 278 (UK JCPC), [1950] A.C. 122; R. v. Board of Transport Commissioners 1967 CanLII 93 (SCC), [1968] S.C.R. 118; Ottawa Carleton Regional Transit Commission and Amalgamated Transit Union, Local 279 et al (1983) 1983 CanLII 1936 (ON CA), 44 O.R. (2d) 560 (C.A.); The Public Service Board v. Dionne [1978]. 1977 CanLII 207 (SCC), 2 S.C.R. 191; Field Aviation Co. Ltd. (1974) 49 D.L.R. (3d) 234 (Alta. S.C.A.D.); Commission du Salaire Minimum v. Bell Telephone Co. of Canada (1966) 1966 CanLII 1 (SCC), 59 D.L.R. (2d) 145 (S.C.C.); Pronto Uranium Mines Limited v. The Ontario Labour Relations Board et al 1956 CanLII 153 (ON HCJ), [1956] OR. 862 (H.C.); M & B Enterprises Ltd. [1975] 1 S.C.R. 178; Charterways Transportation Limited, [1993] OLRB Rep. Nov. 1125; Vis-U-Ray Limited, [1971] OLRB Rep. Nov. 703; Canada Labour Relations Board et al v. Paul L'Anglais Inc. et al (1983) 1983 CanLII 121 (SCC), 146 D.L.R. (3d) 202 (S.C.C.); Re Attorney-General of British Columbia and Attorney-General of Canada (1991) 1991 CanLII 2341 (BC CA), 84 D.L.R. (4th) 385 (B.C.C.A.); I.B.E.W. v. Alberta Government Telephones 1989 CanLII 79 (SCC), [1989] 5 W.W.R. 455 (S.C.C.); Alberta Government Telephones v. Canadian Radio-Television and Telecommunications Commission and CNCP Telecommunications [1989] 2 S.C.R. Aug. 225; Central Western (1988) 84 N.R. 321 (Fed. C.A.), rev'd (1990) 1990 CanLII 30 (SCC), 76 D.L.R. (4th) 1 (S.C.C.); Re Ontario Public Service Employees Union and the Crown in Right of Ontario et al (1994) 1994 CanLII 10557 (ON CTGD), 16 OR. (3d) 735 (Ont. Div. Ct.); and Frias v. Minister of Manpower and Immigration 7 N.R. 602 (S.C.C.).)

8. Ontario Hydro is an electrical utility. As an electrical utility Ontario Hydro has acted as a general contractor in the construction industry. As a consequence of the different work characteristics performed by Ontario Hydro (in juxtaposition to work characteristics performed by contractors in the Industrial Commercial and Institutional sector of construction industry) the Legislature promulgated a sector within the construction industry sections of the Act known as the Electrical Power Systems Sector (see: S. R. Ellis "Electrical Power Systems Sector Inquiry Report" January 31, 1978). Ontario Hydro can best be described as both the largest electrical utility and the largest general contractor in the province.

9. The work in dispute is described as follows:

Ontario Hydro has commenced the new installation of monorail systems at the Bruce "B" Nuclear Generating Station, organized into the following packages:

(a) Boiler Alley east and west sides Elevation 696 Contract No. NK29-9122-A

West Side Installation fabricate and install 111 lineal feet of 58A18.4 monorail beam at elevation of 707'-4. Include a minimum of 13 connection points across the 24" thick concrete walls of the steam drum enclosure. Allow for two locations of the monorail to be curved, one to re-route around existing piping and second to bring the monorail out to the centre of the south access stairs. Allow for installation of one new beam at the north end of the Boiler Alley on grid line 6.8. Elevation to underside of beam to match existing. Connection to existing column at east end will require field welding while the west end will sit on top of the steam drum enclosure of a bearing plate. Allow for two 58A18.4 beam used to span east/west across Boiler Alley at approximately 705'.0 elevation.

East Side Installation: fabricate and install 106 lineal feet of 58A18.4 monorail beam at elevation of 708' .0 include a minimum of 14 connection points to the existing steel at elevation 712' .9 and 14 lateral connections from the top of the monorail beam across to the 24" thick concrete walls of the steam drum enclosure. Allow for two 58A18.4 beams to span east/west across Boiler Alley at approximately 705'-0 elevation.

Material: all structural steel to be CSA G40.21-44W, fabricated and erected to CANCSA - 516.1-M89 Connections: bolts - minimum 5/8 diameter A325,

Field welding - shall be done in accordance to Ontario Hydro specification S-4135M-80 and to CSA W59, latest editions.

Anchoring to concrete - use seismically qualified cinch anchors, minimum 5/8 diameter by 6" long.

10. For ease of reference we will describe the work in dispute as the fabrication and installation of a monorail.

11. It is the usual practice of Ontario Hydro to let out work in discrete work packages. The work in question was assigned in that matter. These packages are usually temporary in nature and can be assigned to the Power Workers, the various unionized trades (either as direct Ontario Hydro hires or as part of a sub-contractor's work force) or to non-union sub-contractors. The decision as to which union will be assigned the work is made pursuant to the various collective agreements between the parties and Ontario Hydro policy. Ontario Hydro's almost exclusive practice, prior to the fabrication and installation of this monorail, was to award this type of work to the Council and the Ironworkers. The nuclear mechanical maintainers do not normally perform this type of work.

12. The work in dispute involves the fabrication and installation of a monorail system at the Bruce Nuclear Generating Station ("BNGS") by members of the Power Workers. This work does not involve the operation of the monorail at the BNGS. BNGS is a CANDU nuclear reactor site located near Kincardine, Ontario. It is operated by Ontario Hydro in accordance with licenses issued by the Atomic Energy Control Board ("AECB"). The AECB is the federal Board responsible for, among other things, regulating the development, control, supervision and licensing the production, application and use of atomic energy, pursuant to the Atomic Energy Control Act, R.S.C. 1985, c.A-16 ("the AECA"). The Atomic Energy Control Regulations C.R.C., 1978, c. 365 ("the AECR") define a nuclear facility in the following manner:

means a nuclear reactor, a sub-critical nuclear reactor, a particle accelerator, a plant for the separation, processing, re-processing or fabrication of fissionable substances, a plant for the production of deuterium or deuterium compounds, a facility for the disposal of prescribed substances and includes all land, buildings and equipment that are connected or associated with such reactor, accelerator, plant or facility: (establissement nucleaire)

13. The BNGS includes a number of facilities governed pursuant to licenses issued by the AECB. The site operates as a highly complex and integrated unit of buildings and systems, which combine to safely produce electricity from nuclear fission.

14. The monorail system is a mechanism for moving heavy materials by attaching them to mobile hooks which run along a suspended I-beam. Prior to the installation of the monorail system, these materials were handled physically. The monorail system, when completed, will be located in "boiler alley" which is in the reactor buildings at BNGS reactor "B". These monorails are placed over the service alleys located to the east and west of each reactor. The installation of the monorails is intended to reduce maintenance time and increase the safety of doing work in the boiler alleys. Ontario Hydro did not need any regulatory approval, from the AECB, for the installation or fabrication of the monorail. As well, Ontario Hydro did not require an Engineering Change Notice ("ECN") for the installation of the monorail. The monorails were fabricated by nuclear mechanical maintainers (members of the Power Workers) at the CMF. The monorails were installed by nuclear mechanical maintainers.

15. The parties filed documentary evidence regarding the safe operation of the BNGS. As an operational nuclear facility, the BNGS contains many different types of radiological hazards. Ontario Hydro, in accordance with the AECB licenses, has established comprehensive and compulsory radiation protection procedures at the BNGS. One of the key elements of these procedures is the policy pursuant to which the BNGS is divided into zones, based on the presence of radioactive systems and the probability that radioactive work will be carried out in various areas.

16. The boiler alleys which are the subject of this dispute are located within Zone Three (the high risk zone), while the Central Maintenance Facility ("CMF") is located in Zone Two. The boilers contain heavy water, which is a "prescribed substance" under the AECA as a result of the possible radiological hazard it poses. Some of the heavy water is converted to tritium as it passes through the boiler system. Tritium also is a "prescribed substance", and possesses a greater hazard than the heavy water. The radiologically active components found within the heavy water portions of the boiler system make exposure to the boilers potentially very dangerous.

17. As a result of the inherent risk of radiological contamination and in accordance with the licenses, an elaborate set of Radiation Protection Procedures ("RPP") have been developed by Ontario Hydro to ensure that the risks to anyone associated with the nuclear site are minimized. These procedures apply to the entire BNGS, regardless of the zone. The rigorousness of the procedures increases as the zone number increases. All workers are rated for their safety competence, and there is a requirement that appropriately qualified safety personnel be available to address any radiological concerns during all facets of work on or at the site.

18. The RPP book contains amongst other things, information pertaining to permissible radiation exposure levels applicable to Atomic Energy Workers ("AEW"); record keeping requirements relating to the exposure experienced by each AEW, guidelines pertaining to the movement of staff and substances between zones; and directives relating to work planning and hazard and exposure management.

19. While fabricating and installing the boiler alley monorails, the employees of Ontario Hydro, (be they members of the construction trades, members of the Power Workers, or nonunion employees) would be working under the conditions set out in the RPP for working in Zone Three. All workers working on the site must wear badges prescribed by the AECB signifying a particular level of safety and emergency training. The level of training determines the colour of the badge. The colour of the badge dictates which zones an employee is entitled to work in, and the level of supervision the employee requires or can provide in the various zones. This particular job required "greenmaning". That is to say, under the RPP's a certain number of workers had to have "greenmaning" credentials so that the monorail could be fabricated and installed safely within the nuclear station environment. The "greenmaning" credential is held by members of the various trades as well as members of the Power Workers.

20. Licenses pertaining to the BNGS require that the station be operated in accordance with AECB approved policies pertaining to staff complement and organization. These policies are in respect of minimum staffing allocation, and are directed towards the safe and efficient running of a nuclear facility. Among other classifications, the policies require that a minimum of two mechanical maintainers staff the facilities at all times. Mechanical maintainers as a group spend the majority of their work day performing tasks that involve nuclear specific knowledge. The staffing policy is silent with respect to the minimum number of "construction trades" persons required to staff the nuclear facility

21. In the summer of 1993, Ontario Hydro undertook a major restructuring of the business units. ENCON, which had previously been the Design and Construction Division, was integrated into the various business units. This reorganization created localized construction departments within each business unit. In the Nuclear Business group these departments were given the title of the "Projects and Modifications Department".

Decision on Constitutional Issue

22. Prior to the decision of the Supreme Court of Canada in Ontario Hydro v. Ontario (Labour Relations Board) ("Ontario Hydro"), all labour relations matters relating to Ontario Hydro were governed under the auspices of Ontario labour relations law. No distinction was made between the nuclear, thermal and hydro-electric components of an integrated power delivery system. As a consequence of the Ontario Hydro decision, adjudicators must now demarcate the line where the non-nuclear business of Ontario Hydro stops and the nuclear business starts.

23. Labour relations are primarily a matter of provincial jurisdiction. However through its declaratory power pursuant to section 92 (10) of the Constitution Act, 1867 ("the B.N.A.") or through its Peace, Order, and Good Government ("P.O.G.G") power pursuant to the preamble of section 91 of the B.N.A. the Federal Parliament may declare that a local Work or Undertaking, like the nuclear business of Ontario Hydro, be regulated by the Federal Parliament. (The Board when referring to "Work" or "Undertaking" is referring to these works in a constitutional sense). The delineation of these powers involves a careful balance between the federal sphere and the provincial sphere.

24. Parliament's jurisdiction over a declared Work or Undertaking is limited so as to respect the power of the Provinces, but consistent with the appropriate declared federal interest. To decide if Parliament has ousted provincial jurisdiction from a given Work or Undertaking, with respect to labour relations, one must determine the exact nature of the federal Work or Undertaking, and whether the work is integral to the federal Work.

25. As a general guideline courts have said that if the work is within a federal Work or Undertaking, or an integral part of one, labour relations, because it is considered essential to the management of the federal Work or Undertaking, will be within the federal jurisdiction. However, where the work is not part of, or integral to, the federal Work or Undertaking then the employees performing that operation are most likely governed by labour relations in the provincial sphere. If, for example, one was contracted to build a runway at an airport for a federal airport authority, one could expect that the employees engaged in building the runway would be governed by provincial labour laws. However, if one was contracted to remove snow from the same runway, one could expect that the employees engaged in removing the snow would be governed by federal labour legislation. In the same regard, if one was contracted to mine uranium one could expect that the employees engaged in the mining operation would be governed by federal labour relations. However if one was contracted to install a conveyor system in an already existing uranium mine one could expect that the employees engaged in the installation of the conveyor system would be governed by provincial labour laws. (see: Northern Telecom v. Communications Workers (No. 1) ; City of Kelowna; Montcalm Construction Inc.; Manitou Mechanical Ltd.; and Pronto Uranium Mines Ltd.).

26. This set of constitutional facts presents an interesting issue with respect to a business that has a corporate structure which includes both nuclear and non-nuclear businesses. The first step in attempting to draw the line in respect of where the non-nuclear business stops and the nuclear business begins is to understand the dimensions of the federal Undertaking. The Supreme Court of Canada in the Ontario Hydro case had occasion, in what has been referred to as a plurality decision, to decide the dimensions of the federal Undertaking in respect of Ontario Hydro's nuclear business. Lamer C. J. agreed with Iacobucci J.'s characterization of the "federal" portion of the Undertaking. Lamer C. J. frames the federal Undertaking in the following way:

……Rather, I think that stating Parliament's interest in the 'control of supervision of the…..application and use of atomic energy" directly implicates regulation of the activities involved in that application and use, which in turn involves the regulation of those employed in producing nuclear power. In fact, Iacobucci J. agrees at p. 416 that "the uniquely federal aspect of Ontario Hydro's nuclear electrical generating stations is the fact of nuclear production, with all its attendant safety, health and security concerns

As the discussion below of the regulations made under the AECA makes clear, the Atomic Energy Control Board is given broad regulation-making power, through which the production of nuclear energy is primarily controlled and supervised. Section 9(b) AECA, for example, allows the Board to make regulations "for developing, controlling, supervising and licensing the production, application and use of atomic energy". It is through this regulation-making power that the Board has made clear the federal government's interest in labour relations matters affecting nuclear energy, and to which I shall now turn.

(see: Ontario Hydro, 5CR. alp. 341-2)

Iacobucci J., speaking for Sopinka and Cory concurring, characterized the federal Undertaking in the following way:

There is nothing in this statement, nor in the rest of the Act, that explicitly or implicitly reveals a federal interest in regulating labour relations. It is apparent from the Atomic Energy Control Act that the uniquely federal aspect of Ontario Hydro's nuclear electrical generating stations is the fact of nuclear production, with all its attendant safety, health and security concerns.

(see: Ontario Hydro, S. C.R. at p. 416)

27. This analysis would limit the jurisdiction of the federal legislature to matters that effect the production of nuclear energy, with all its attendant safety, health and security concerns. Put simply, when focusing on the constitutional facts the panel must decide whether there are constitutional facts sufficient to lead the panel to the conclusion that the fabrication and installation of this monorail, at the Ontario Hydro nuclear site, is integral to the federal Undertaking.

28. The Power Workers argued that the nuclear mechanical maintainers are almost always responsible for work assignments which relate to work that is integral to the Undertaking. Consequently, they assert, when the nuclear mechanical maintainers are performing tasks which are not "vital" or "integral" to the federal Undertaking, those tasks, even though they relate to such a small portion of the overall work of federally regulated employees, must be found to be work that is integral to the federal Undertaking. Similarly the Power Workers argued that the decision about "federalness" can be decided on the basis of which "part" of Ontario Hydro assigned the work. In other words, if a department of the nuclear business made a decision about the assignment of work then the work would be integral to the federal Undertaking; however, if a department of the nonnuclear business made the assignment then the work would be found not to be "vital" or "integral" to the federal Undertaking.

29. The Power Workers relied on the reasons of the Supreme Court of Canada in Northern Telecom (No. 1) which outlined a set of questions that helped to focus the inquiry in respect of whether .the installers of telephone equipment employed by the manufacturer were part of the federal telephone and telecommunications Undertaking.

30. In the case before us, the nuclear business of Ontario Hydro is part and parcel of its overall corporate structure. The activities of Ontario Hydro are primarily provincial in nature. It is only the narrow sphere of the nuclear operations that have been held to fall within federal jurisdiction. The fabrication and installation of a monorail as such does not involve the production of nuclear energy or the operation of the nuclear facility. Accordingly, the facts before us are closer to the situation considered by the Courts in T. D. Bank, to which we will return below. Our fact situation is different then Northern Telecom (No. 1) and (No. 2).

31. This is a case where one must look at the work itself and see if the work is vital to the federal Undertaking regardless of who did it or what department of Ontario Hydro was responsible for it.

32. The federal Parliament has promulgated legislation, regulations and policies to deal with nuclear energy concerns. The AECB is an administrative tribunal which has jurisdiction to review practices, policies and procedures relating to the production of nuclear energy. It is clear that any labour relations matter dealing with the production of nuclear energy and its attendant health and safety concerns is within the federal sphere of legislative competence. That being the case, the panel must decide if the umbrella of federal legislation and subordinate regulations, policies, procedures and licenses, that apply in the environment, operate to instill a "federalness" upon the fabrication and installation of the monorail.

33. The Power Workers assert that the most important effect of the licenses, regulations, practices and procedures upon the federal Undertaking is to ensure a safe workplace in respect of radiological hazards. An example of this is the zoning practices which require a certain type of ARW to be involved with the installation of the monorail. These ARW's must wear badges which inform people about the level of safety and emergency training the ARW has received. In this case there had to be a certain number of workers with the highest level of training at the installation of the monorail. The licenses require that the stations be run in accordance with approved AECB policies relating to staff complement. These policies, submit the Power Workers, clearly relate to the safe and efficient operation of the nuclear facility. The licenses also require Ontario Hydro to keep the AECB informed of changes to the physical site. Certain changes will need prior approval by the AECB.

34. There is a high degree of involvement of the AECB in terms of regulating the construction and alteration of the physical structure of a nuclear facility. However, in respect of the fabrication and installation of the monorail, Ontario Hydro did not request AECB approval for this work. As well, although safety concerns touch upon all aspects of the facility, this by itself does not affect the labour relations jurisdiction. The dichotomy between what part of the construction process is subject to federal labour relations and what part is subject to provincial labour relations was reviewed by Beetz J. in the Construction Montcalm case at S.C.R. p. 770-71:

The construction of an airport is not in every respect an integral part of aeronautics. Much depends on what is meant by the word "construction". To decide whether to build an airport and where to build it involves aspects of airport construction which undoubtedly constitute matters of exclusive federal concern: the Johannesson case. This is why decisions of this type are not subject to municipal regulation or permission: the Johannesson case; City of Toronto v. Bell Telephone Co.; the result in Ottawa v. Shore and Horwitz Construction Co. can also be justified on this ground. Similarly, the design of a future airport, its dimensions, the materials to be incorporated into the various buildings, runways and structures, and other similar specifications are, from a legislative point of view and apart from contract, matters of exclusive federal concern. The reason is that decisions made on these subjects will be permanently reflected in the structure of the finished product and are such as to have a direct effect upon its operational qualities and, therefore, upon its suitability for the purposes of aeronautics. But the mode or manner of carrying out the same decisions in the act of constructing an airport stand on a different footing. Thus, the requirement that workers wear a protective helmet on all construction sites including the construction site of a new airport has everything to do with construction and with provincial safety regulations and nothing to do with aeronautics: see R. v. Beaver Foundations Ltd. and R. v. Concrete Column Clamps (1961) Ltd. See also Re United Association of Journeymen, etc. Local 496 and Vipond Automatic Sprinkler Co. Ltd., where Cavanagh J. of the Alberta Supreme Court held that "the fact of construction of a building called an air terminal does not ... show that the construction is connected with aeronautics" and that, while an aerodrome is a federal work, employees constructing such a building are subject to provincial labour relations legislation. In my opinion what wages shall be paid by an independent contractor like Montcalm to his employees engaged in the construction of runways is a matter so far removed from aerial navigation or from the operation of an airport that it cannot be said that the power to regulate this matter forms an integral part of primary federal competence over aeronautics or is related to the operation of a federal work, undertaking, service or business.

In our view it is clear that although the planning process, safety procedures, emergency procedures and supervision are integral to the federal Undertaking, this does not necessarily mean that fabrication or installation is.

35. In T.D. Bank the Board found that direct hire construction employees of a bank were not subject to federal labour relations laws because the construction of a bank was not found to be an integral part of the banking function. In Henuset Rentals Ltd. the Saskatchewan Court of Queen's Bench found that construction of an interprovincial pipeline was governed by provincial legislation while its repair and maintenance, being operational features, were within federal jurisdiction.

36. Both T.D. Bank and Henuset Rentals Ltd. involve construction from the ground up. The case at hand involves an addition to an already existing structure. The Board in Manitou Mechanical held that it had jurisdiction to hear a certification matter dealing with employees of a contractor performing work in respect of the installation of a conveyor system at an operating uranium mine. The Board held at page 661 of its decision that:

The application of the functional test in this case leads to the conclusion that the work in question is neither an integral part of nor is it necessarily incidental to the operation of the Denison Mine. Although the conveyor system, when installed, will be an integral part of the Denison mining operation, the installation itself is not "an integral part of or necessarily incidental to the production, refining or treatment of uranium ore." In the result, the Board is satisfied that it has the jurisdiction to proceed in this matter.

We would adopt the analysis from T. D. Bank, Henuset Rentals Ltd. and Manitou Mechanical. It is clear from those decisions that the issue is not whether the work is, "from the ground up" construction or additions, or even replacements. The issue for the particular facts is how integral or vital the work is to the federal Undertaking?

37. In our opinion planning, operation and safety issues regarding the monorail are within the federal sphere of jurisdiction. However the fabrication and installation of the monorail is not.

Work Assignment Decision

38. The panel during its deliberations focused on two factors, the competing collective agreements and the practice of Ontario Hydro and EPSCA with respect to the work in dispute.

39. In respect of the collective agreement between the Power Workers and Ontario Hydro, this panel adopts the decision of the Board in Ontario Hydro, [1993] OLRB Rep. Nov. 1167 where at paragraph 12 the panel held that:

Generally speaking, within the context of a jurisdictional dispute, the panel must satisfy itself that both collective agreements are able to be interpreted such that the work in dispute is covered within each trade unions jurisdictional work claim. In respect of Local 1788, it is clear and unambiguous that the work in dispute is covered by their collective agreement with Hydro. In fact, none of the parties argued otherwise. In respect of CUPE, although it is not clear that the work in dispute falls within the ambit of their collective agreement with Hydro, there is enough ambiguity in respect of how the agreement has been applied such that the panel declines to decide this case on the basis that there is no jurisdictional claim in the CUPE collective agreement in respect of the work in dispute.

40. Both the Power Workers and Ontario Hydro/EPSCA challenged the extent of the bargaining rights between the Council and EPSCA and the Ironworkers and EPSCA. The Power Workers submitted that the Council's and the Ironworker's bargaining rights were limited to situations where ENCON or ENCON's successor (a construction branch) was responsible for the work assignment. Since this is a case where Operations was responsible for the work assignment, asserted Power Worker's counsel, neither the Ironworkers' nor the Councils' collective agreements covered this work assignment and therefore the work could not be performed pursuant to the collective agreement. Further, the Power Workers argued that this was not a major modification and consequently the work was not covered by the collective agreement. Ontario Hydro/EPSCA argued that both the Councils' and the Ironworkers' collective agreements limited their application to situations involving major modifications with field labour of more then $100,000.00. They submitted that the original bid, by Operations, for field labour, was less then $100,000.00, and consequently neither the Ironworkers or the Council were entitled to the work.

41. We find that the collective agreements of the Council .and the Ironworkers are not limited to a construction division of Ontario Hydro. For the purposes of this jurisdictional dispute it is unnecessary to delineate the exact parameters of the Ironworker's or the Council's bargaining rights. Further, we find that this work is a major modification of the facility. The final cost of the work included in excess of $100,000.00 of field labour. Although the original work estimate was for a monorail known as "boiler alley monorail #8", the material before us indicates and we find that Ontario Hydro has also committed itself to the installation and fabrication of "boiler alley" monorail #5, #6, #7 and ancillary projects.

42. The practice evidence placed before us in the briefs uniformly shows that the fabrication and installation of monorails has been performed by the Council and the Ironworkers in all business units of Ontario Hydro across the province. The uniformity of the practices indicates that Ontario Hydro has historically treated this work as a major modification. Consistent with Ontario Hydro's practice and the nature of the work in dispute here, the appropriate assignment was to have awarded this work to the Council and the Ironworkers.

43. Ontario Hydro is a province-wide utility. The bargaining rights held by the various unions within the Ontario Hydro system are province-wide. The Board, where it can, must attempt to minimize the possibility of further jurisdictional disputes in respect of the same type of work. In Comstock Canada [1993] OLRB Rep. Aug. 740 the Board at paragraph 9 said the following:

The wording of section 93(2) gives the Board authority to make its decisions binding on parties for other jobs not then in existence, or jobs in other geographic areas. The Legislature has given the Board specific authority to make decisions affecting future jobs, where no work at all has yet been performed. To fulfill this statutory mandate, to fully determine work assignment disputes, the Board must take a realistic view of the work in dispute. The jurisdictional disputes provisions are unlike other parts or sections of the Labour Relations Act. For the Board to be able to determine work assignment disputes between trades in a practical fashion, it may in given situations have to look at the overall context. In circumstances where a dispute clearly exists over particular work, where parties have been put on notice of the nature of the competing claims and provided full opportunity to respond, it is more consistent with the Board's mandate to resolve jurisdictional disputes to deal with the real work in dispute.

44. The Board directs Ontario Hydro to assign to the applicants the work in dispute namely;

all work in connection with the fabrication and installation of monorail systems, including supplementary support steel or other supports;

all work in connection with the erection and dismantling of scaffolds used in the fabrication and installation of monorail systems;

all painting work in connection with the fabrication and installation of monorail systems;

all clean-up work associated with such construction;

at the Bruce Nuclear Generating Station, Tiverton, Ontario; and in the electrical power system in the Province of Ontario generally.

to be assigned as follows:

(a) crews of Ironworkers and crews of Millwrights shall perform all work in connection with the fabrication and installation of the Monorail systems, including support steel or other supports, in accordance with the respective division of work set out in various International Agreements between the two trades.

(b) all work in connection with the erection and dismantling of scaffolds used in the fabrication and installation of monorail systems, with members of the Carpenters Union erecting and dismantling scaffolding and members of the Labourers' Union tending carpenters and handling scaffolding material and from the place of erection.

(c) all work in connection with painting to be performed by members of the Painters' Union.

(d) all work in connection with clean-up for all trades working on the monorail systems and associated scaffolding to be performed by members of the Labourers' Union.

in the electrical power sector throughout the Province of Ontario.

45. A separate panel of this Board, which included the Alternate Chair, has, in a number of decisions dealing with a growing number of applications pursuant to the jurisdictional dispute sections of the Act, said the following:

This dispute is unique in a variety of ways, including: the number of identity of the parties involved; the provincial scope of Hydro's operations; the nature of the issues (some of which may involve "constitutional questions"); the sheer magnitude of the potential litigation; and the potential cost to the parties and the public.

It is not obvious to the Board that this dispute can, or should be, resolved by piecemeal litigation of individual applications, or that the normal hearing/consultation format is the most appropriate one. In the circumstances, if there is to be litigation, it is not obvious that the timetable should be governed by the vagaries of filing. Nor is it apparent that the existing Rules are well suited to handle a dispute of these dimensions. The Board is also aware that if the litigation commences and continues, the Board's own Rules and Procedures, will probably become a "tactical" weapon to be used by one party or the other to advance its interests.

In the circumstances, the Board has decided that it should review the general situation with a view to constructing a more economical, expeditious, and perhaps global resolution of the dispute. In the meantime (and pursuant to Rule 22) the Board will relieve responding parties from strict compliance with the Rules respecting Replies, and will neither process nor schedule for hearing/consultation new applications filed after this date. Similarly, the Board will adjourn related proceedings (for example applications under section 126 of the Act) which appear to be part or an aspect of the same general dispute.

Unless the parties are able to compose their differences, it may well be necessary to litigate some number of these applications. But until the Board has had an opportunity to review the situation and consider the best disposition of its own hearing resources, there will be a brief "moratorium".

46. It is not clear to this panel of the Board why the parties continue to litigate these matters in a piecemeal fashion. It is our view that these matters need a more comprehensive solution which would be best fashioned by the parties themselves. We would encourage the parties to this dispute to work towards such a solution in a timely manner.