International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Lodge 128 v. Babcock & Wilcox, International Division
[1994] OLRB Rep. March 199
0927-93-G International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Lodge 128, Applicant v. Babcock & Wilcox, International Division, Responding Party
BEFORE: Brain Herlich, Vice-Chair, and Board Members R. M. Sloan and B. L. Armstrong.
APPEARANCES: David McKee, Hugh Laird and Michael Church for the applicant; Bruce Binning and Murray Sanderson for the responding party.
DECISION OF THE BOARD; March 10, 1994
1The applicant, pursuant to section 126 of the Labour Relations Act, has referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding determination.
2The grievance in question relates to water lancing work (which will shortly be described in greater detail) performed by the responding party (also referred to as "B&W" or the "company") on steam generators located within Unit 6 of the Pickering nuclear power facility operated by Ontario Hydro (also referred to as "Hydro"). The applicant (also referred to as the "union") asserts that the work in question falls within the scope of the collective agreement (also referred to as the "EPSCA agreement") between the Electrical Power Systems Construction Association and the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers. It was not disputed that B&W is bound to the EPSCA agreement; the company argues, however, that the work in question does not fall within the scope of that agreement. The union argues, in the alternative, that the work in question falls under the terms of the collective agreement (also referred to as the "BCA agreement") between the International Brotherhood of Boilermakers’ Iron Ship Builders, Blacksmiths, Forgers and Helpers and the Boilermaker Contractors' Association. Despite the alternative position advanced by the union, the parties agreed that, at least at this stage of the proceedings, the Board should consider only whether the work in question falls under the EPSCA agreement; the parties' evidence and submissions were directed to that issue and it is that issue which is the subject of the present decision.
3During the hearing in this matter numerous documents were filed as exhibits. In addition the Board heard the oral evidence of seven witnesses including not only representatives of the company and the union but also two Hydro officials the union called to testify. In coming to its findings of fact the Board has carefully considered all of the evidence before it and taken into account such factors as: the demeanour of the witnesses when giving their evidence, the clarity and consistency of that evidence when tested in cross-examination, the witnesses' ability to recall events and resist the tug of self-interest in shaping their answers, and what seems most probable in all the circumstances. Having said that, however, it is also appropriate to observe that, upon reviewing the evidence, it does not appear to us that there are material or significant conflicts in the evidence of the various witnesses who testified. The parties continued, however, to disagree about the appropriate characterization and consequent legal conclusions which ought to flow from that evidence.
4The work in question was performed by B&W in or about March and April of 1993 during a planned shutdown of unit 6 of Hydro's Pickering facility. The main purpose of the shutdown, which lasted approximately 110 days, included boiler maintenance, chemical cleaning, water lancing and other work. It is, of course, only the water lancing work which is the subject of the instant grievance. Case Bassie, a contract administrator for Hydro's technical procurement and services, estimated that the water lancing would take 2 to 3 24 hour days of work for each of the 4 sets of 3 to 4 boilers involved.
5Each of the boilers or steam generators is a large vertical heat exchanger. Within each generator is a series of thousands of tubes which carry reactor coolant. The tubes are each approximately 1/8 inch in diameter and are spaced approximately 1/8 inch apart. Outside the tubes but within the boiler, feed water flows to cool the reactor. Steam is produced during this process. As the boiler feed water circulates through the piping it picks up various metallic contaminants and trace impurities. As the feed water is converted to steam some of the various impurities remain as solids and precipitate to the bottom of the boiler in an area referred to as the tube sheet. This results in a sludge pile which tends to collect in the center of the tube bundle on the tubesheet. This sludge is as hard as concrete and packed as it is in the midst of a densely packed tube bundle is difficult to remove. The waterlancer is a device which can pump water at pressures up to 10,000 pounds per square inch. The generator is a solid unit which cannot be dismantled. Consequently, special access holes are cut to facilitate access by the water lance. The lance itself is approximately 1/8 inch wide, 1-1/2 inches high and 8-9 feet long. It is made of a flexible material which allows it to bend through the various radii and angles within the tube lanes. The water lance directs the high pressure water back and forth across the sludge pile. In this fashion the sludge pile is broken up and washes away through a suction hose which is placed in the boiler to facilitate the process.
6This was not the first time that B&W has performed water lancing work for Hydro. Although the circumstances leading to Hydro's decision to do the work may have varied, it would appear that similar work has been performed by B&W for Hydro on three previous occasions: in 1989 on Unit 2 at the Bruce Generating Station at Douglas Point; in 1990 on Unit 1 at the same facility; and in 1992 on Unit 5 at the Pickering facility. The water lancing work done on Unit 5 appears to have been virtually identical to that currently under consideration. The work on Unit 5, however, was performed during a forced outage which resulted from severe leaks within the boilers. Mr. Bassie conceded that Unit 5 was damaged although he referred to the work done there as required maintenance. He contrasted that to the work on Unit 6 (which was neither damaged nor the subject of a forced outage) which he characterized as preventative maintenance. Regular performance of water lancing (and related operations) will contribute to the prevention and control of the kind of extensive pitting and corrosion which may damage the boilers and reduce their efficiency. Up to 10% of the tubes within any boiler may be plugged before there is any impact on boiler efficiency. There had been no loss of efficiency within Unit 6 at the time the water lancing work was done. Mr. Pink, B&W's manager of nuclear services, also described the work done at Unit 6 as maintenance which does not affect the capacity of the unit but rather improves or maintains the longevity of the boilers, insuring that they will reach their design life expectancy.
7On each of the previous occasions that the company performed water lancing work, the union and B&W reached an agreement whereby the latter would remit to the union monthly dues of $30.00 for each B&W employee performing water lancing work at the relevant Hydro site. It was conceded by the union that the $30.00 figure does not correspond to any relevant construction or shop collective agreement to which the union is a party. Apart from the dues payment just described, the work in question was performed entirely free from the strictures of any collective agreement whether in respect of hiring or otherwise. Towards the end of 1992 and the beginning of 1993 the union advised the company that it was unwilling to continue this arrangement in relation to future water lancing work. This change in position on the part of the union coincided with Ed Power's assumption of the position of business manager. By letter dated January 15, 1993 addressed to Dave Butt, B&W's manager of industrial relations and safety, Mr. Power articulated the union's position as follows:
Please be advised that after seeing the labour requirements clause for upcoming Boiler lancing work at Ontario Hydro and seeking legal council [sic], that you should make your submissions for this work based on the construction field rates.
I realize in the past this Local has permitted workers to do this type of work, but, that was under a different Business Manager.
I believe that all of this work from this date forward should be done at construction rates....
8While the union's position was that water lancing work should be considered construction work, the company responded that it was prepared to negotiate what it referred to as a "suitable service type agreement" to apply to its employees performing water lancing work. In any event, the discussions between the parties were neither prolonged nor fruitful and B&W proceeded to do the work in question without reference to the terms of any collective agreement including the EPSCA agreement and the union initiated the current proceedings.
9Both parties~ for different reasons, pointed to the previous arrangement governing water lancing work as relevant to our determination in this matter. The company emphasized the significance of the fact that it had previously, and without any grievances being filed, performed water lancing without applying the terms of any collective agreement with the union. The union undermined that assertion by questioning whether the company's previous remittance of union dues in respect of that work could legitimately be seen as ex gratia and pointed, at least in its questioning of one B&W witness, to various possible explanations for the company's conduct including the value to it of being able to tell other trades and Hydro employees on site that dues were being paid to the union in respect of B&W employees. While there may well be some compelling, though conflicting, logic to the assertions of both parties in respect of the previous water lancing work, the Board is ultimately unable to see how that evidence is of assistance to us in dealing with the issue which currently concerns us, namely whether the work in question falls within the scope of the EPSCA agreement. We find any attempt to distil motives and infer the appropriate interpretation of the collective agreement from the prior arrangement to be remarkably similar to performing the same functions in relation to the settlement of a prior related grievance. Consequently, even assuming consideration of the prior manner in which the parties dealt with water lancing work pointed unambiguously to one result or another in the present case (something which we seriously doubt), the Board is reluctant to ascribe too much significance to that consideration. To effectively hold the parties to the terms of what no one suggested was anything other than an ad hoc arrangement would be akin to arbitrarily and unproductively stripping a grievance settlement of its without prejudice character. The Board is reluctant to do anything which will serve as a disincentive for the parties to bargain their ways out of difficult labour relations problems. Such agreements are fundamental to the continuing health of labour relations and as such are a prominent feature of the labour relations landscape and perhaps particularly so in the construction industry.
10In a similar vein, there is other evidence, primarily pointed to by the union, which we find to be ultimately equally unhelpful to our determination. In a memo dated March 11, 1993 from Hydro to B&W, Mr. Bassie communicated the following:
... As the precedent has already been set on Unit 5 Boiler Lancing and your bid was submitted on the same basis, the work to be done by Babcock and Wilcox under this contract for Unit 6 Boiler Lancing shall be under the terms of our Form B Labour Requirements Clause...
11Hydro's Form B Labour Requirements Clause as opposed to its Form 1 Labour Requirements Clause applies to work other than that covered by the EPSCA agreement.
12A week later Mr. Bassie transmitted a further up memo to B&W as follows:
Further to my Fax dated March 11, 1991 [sic], I am advised by our Labour Relations that precedence was not set in labour assignment on the Pickering Unit 5 Steam Generator lancing contract. However, after some discussions between Ontario Hydro Labour Relations, Construction and the Boiler Maker's Union it was agreed to allow B&W to complete the work as contracted. i.e. it was not determined that the work was not Construction Industry Work and decisions made regarding Unit 5 would not automatically apply to Unit 6 or other subsequent units.
Therefore I must retract my statement re the Form B, and advise you that any of the B&W scope of work under the contract must be performed under our Form 1 Labour Requirements Clause, should the work be determined to be Construction Industry work. Ontario Hydro shall not be responsible for any additional costs in this event. B&W will also be responsible for determining whether or not the work is Construction Industry work.
[emphasis added]
13Consideration of these memos along with Mr. Bassie's viva voce evidence does not persuade us that any determination was made by Hydro that the work in question was construction work or otherwise fell under the terms of the EPSCA agreement. All that Hydro appears to be saying is that the prior arrangement regarding water lancing work is not dispositive, a conclusion consistent with the view the Board has just expressed. Thus, even assuming its view of the nature of the water lancing work might be of assistance to us, Hydro appears to be saying little more than the work is subject to the terms of the EPSCA agreement if it is construction work.
14This, of course, brings us squarely to the very issue to be decided by the Board in this case: is the water lancing work performed by the company construction industry work or, put perhaps more accurately, does it fall within the scope of the EPSCA agreement?
15The employer refers us to a number of Board decisions including Belmont Property Management Ltd., [1991] OLRB Rep. Oct. 1117; Levert & Associates Contracting Inc., [1989] OLRB Rep. June 630; and Gallant Painting, [1987] OLRB Rep. Mar. 367 each of which deals, in the context of a certification application, with the often vexing distinction between "construction" and "maintenance" work. Each of these cases rely on the seminal case of The Master Insulators' Association of Ontario inc., [1980] OLRB Rep. Oct. 1477 in which the Board at paragraphs 28 and 29 dealt with the distinction as follows:
with the exception of the work performed at the premises of Fearman and the work on a new emergency shower and minor work in a change house at 5telco, the work performed by the employers who were named in this complaint was essentially similar in nature. In our view, the work at the premises of Fearman, which involved an addition to an existing facility and involved both relocation of producing units and the expansion of existing capacity, was clearly new construction. Similarly, the work on the emergency shower and change house at Stelco was an addition for the safety and comfort of Stelco's employees and represented new construction. This work is clearly within the industrial, commercial and institutional sector of the construction industry. The rest of the work referred to in the complaint was, for the most part, clearly work which sustained and maintained an operating facility and enabled that facility either to operate efficiently or to attain its designed or production capacity and it [ought] to be regarded as maintenance work. Maintenance work is to be distinguished from construction work which involves the addition to an existing facility or which will increase the designed or production capacity of an existing facility. However, in so far as there was work of new construction, which was purportedly done under the maintenance agreement, it was a violation of section 134(a) of the Act.
Maintenance work performed by the employers who were named in this complaint is in reality part and parcel of the production and maintenance operations of the industrial clients for whom the work is performed. These industrial clients may, and frequently do, perform their own maintenance work with their own employees who are included in their own industrial bargaining units. In the context of the work affected by this complaint ~~maintenance" is difficult to distinguish from "repair". In our view, it is a question of the context of any given work and the degree of addition or subtraction of such work to an existing system or part of a system. Where the work assists in preserving the functioning of a system or part of a system, such work is maintenance work. Where the work is necessary to restore a system or pan of a system which has ceased to function or function economically, such work is repair work. "Maintenance" and "repair" are not mutually exclusive concepts, and lack of adequate maintenance will surely produce a situation where repair becomes inevitable. In our view, the performance of adequate and timely maintenance forestalls or reduces the requirement for repair.
16We note as well that the Board observed in that case that the word repair (which is included in the statutory definition of construction found in section 1(1) of the Act) as it was used in the maintenance agreement there under consideration was not to be construed as "repair” as contemplated in the statutory definition.
17The union does not challenge the authorities relied upon by the company. Indeed, the union candidly concedes that the water lancing work in question may well not be construction industry work if one is limited to the statutory definition and its interpretation in the cases just cited. That, however, asserts the union, is not the issue before the Board. In The Electrical Power Systems Construction Association, [1990] OLRB Rep. Oct. 1031 the Board concluded that the work performed by an employee assigned to light duties in Hydro's pallet yard was (whether or not it was construction as defined in the Act) work covered by the relevant collective agreement. The Board framed the issue in that case as follows (at paragraph 34):
…..The issue before us is not whether the work performed by Mr. Richards is work in the "construction industry" as that term is defined in the Act. Rather, the issue is whether the work which Mr. Richards was performing fell within the parameters of the collective agreement.
[emphasis in original]
18We adopt the reasoning in arriving at that formulation of the question and are satisfied that, with the appropriate changes, this is the very issue we must decide in the present case: does the water lancing work fall within the terms of the EPSCA collective agreement?
19The union points us to Article 1.1 of the collective agreement which provides as follows:
EPSCA recognizes the Union as the exclusive bargaining agency for ... [boilermakers] engaged in all construction industry work* performed in the Province of Ontario on Ontario Hydro property for the bulk power system...
* ... The work encompasses:
construction of new facilities
additions to existing facilities
major - modifications
rehabilitation
reconstruction of
existing facilities
20While the union may well be correct in its assertion that the scope of work covered by the EPSCA agreement is broader than the parameters of construction industry work as defined in the Act, we are not persuaded that the provisions of the EPSCA agreement are wide enough to capture the water lancing work performed at Unit 6. We are not convinced that this work is properly characterized as the kind of "major modification rehabilitation" contemplated by the agreement. Indeed, unlike tube plugging work which involves a physical modification to the boiler systems and which has apparently been performed previously under the terms of the EPSCA or BCA agreements, we are not satisfied that the current work is properly characterized as "modification". Similar observations apply to the support work done by Hydro - work which was not part of B&W's contract but was done by Hydro under the terms of the EPSCA agreement - to facilitate the water lancing work, namely the cutting of holes in the boilers to facilitate access for the lance and its manipulator. And, finally, while it may be that we would be driven to a different conclusion were we examining the water lancing work performed previously at Unit 5 and the circumstances necessitating that work, we draw no conclusions about the nature of that work since it is not the subject of our deliberations.
21We accept the evidence of both Mr. Bassie and Mr. Pink regarding the appropriate characterization of the work in question. The work was, in essence, preventive maintenance designed to maintain the proper and efficient functioning of the boilers and to prevent the need for future repairs which might well be necessary in the absence of such maintenance. It is not work which falls within the scope of the EPSCA collective agreement and to the extent it alleges a violation of that agreement, this application is dismissed.
22In view of the parties' agreement about the limited nature of the Board's inquiry at this stage of the proceedings, the applicant is directed, within 30 days of the date hereof, to advise the Registrar whether there are any remaining issues in dispute between the parties requiring further hearing. In the absence of any such notification this application will be deemed to have been dismissed in its entirety.