[1996] OLRB Rep. May/June 399
2181-92-M Carpenters & Allied Workers Local 27, United Brotherhood of Carpenters & Joiners of America, Applicant v. Duntri Construction Ltd., Responding Party v. Labourers' International Union of North America, Ontario Provincial District Council; The Metropolitan Toronto Sewer and Watermain Contractors Association, Intervenors
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members W N. Fraser and G. McMenemy
APPEARANCES: David A. McKee and Michael Yorke for Carpenters Local 27; Carl W Peterson for Duntri; John Moszynski for Labourers; Richard Charney and Sam Morra for Metro Toronto Sewer and Watermain Contractors Association.
DECISION OF THE BOARD; June 5, 1996
This is a sector determination.
This matter was heard by the Board on May 1, 2, 31, June 14, 15, September 29, October 3, 1995 and January l9 and 3l, 1996.
The work which is the subject matter of this sector determination involves the construction of a raw sewage pumping station, adjacent part of sanitary forcemain and sanitary sewer, inlet work modifications at a sewage treatment plant, and modifications at the River Street Pumping Station in the Town of Bracebridge. Although the modification work at the sewage treatment plant and River Street Pumping Station form part of the single contract let by the District Municipality of Muskoka, these items were relatively minor in a project worth approximately two million dollars. They did not form the bulk of the work undertaken and are not determinative of this sector determination. The essence of this sector determination revolves around the construction of the raw sewage pumping station known as the Brookfield Sewage Pumping Station in the Town of Bracebridge.
At this stage it is useful to set out the evidentiary ruling made by the Board at the commencement of the hearing as it provides some context to the case and indicates both what the sector determination does involve and what it does not.
On May 31, 1995 the Board rendered the following unanimous oral ruling:
"We have considered the submissions of the parties with respect to the evidence which the Board should properly admit as relevant to our determination of this application made pursuant to section 153 of the Act [as it then was].
Counsel for the Labourers, Duntri and Metropolitan Toronto Sewer and Watermain Contractors Association urged the Board to limit the evidence to "stand-alone" pumping stations, and not admit evidence with respect to pumping stations that were part of, or operated in connection with, water or sewer treatment facilities or reservoirs. Counsel for the Carpenters, while acknowledging that the work which forms the subject matter of this sector determination is a "stand-alone" pumping station, argued evidence of other pumping stations are relevant to counter or refute the assertions that the Brookfield Pumping Station is integral to the sewer and watermain system. One of the positions of the Carpenters is that this pumping station, if integral to something, is integral not only to the sewer and watermain work, but also to the sewer and water treatment facilities. Similarly. counsel for the Carpenters asserts that there has not been a decision with respect to the sector in which pumping stations fall. It may therefore be relevant to rely upon the fact that this pumping station is more like, or clearly different from, "something" which is clearly ICI (i.e. a pumping station at a reservoir or water or sewer treatment facility) than "something" which is clearly sewers and watermain work (i.e. pre-cast pipe laid underground). In this regard, counsel notes also that this pumping station is certainly quite unlike the pre-cast manhole with a submersible pump to which the Labourers, Duntri and the Metropolitan Toronto and Watermain Contractors Association have drawn an analogy in their respective Briefs. Just as it may be necessary to hear evidence which points to the difference and/or similarities between this pumping station and such pre-cast manholes with submersible pumps, it is also necessary to hear evidence which points to the differences and/or similarities between the Brookfield Pumping Station and pumping stations built in connection with water or sewage treatment facilities or reservoirs.
In our view, this sector determination involves a particular type of work and a particular type of situation which exists in a particular type of environment. Although in theory an analogy could probably be drawn between the Brookfield Pumping Station and any number of other structures or stations, and differences or similarities could be raised by either party, the purpose of a sector determination would not be served if this type of evidence, which at best will have only a very marginal, arguable relevance were admitted without regard to the fact that admission of such evidence would protract and lengthen these proceedings. We therefore propose to limit the evidence to work or structures which are substantially similar to the Brookfield Pumping Station. In our view, pumping stations which operate within and as an integral part of a sewage or water treatment facility, or as an integral part of a reservoir or storage tank system are not substantially similar to the pumping station which is at the core of this sector determination. Neither, however, are pre-cast manholes with submersible pumps. We therefore find that evidence relating to these types of "pumping stations" are also not relevant to this proceeding".
Thus it can be seen that the work which forms the subject matter of this dispute is a standalone pumping station - not a pumping station built in connection with or adjacent to a water or sewage treatment facility or reservoir, and not a "pumping station" or pumping system which is little more than a submersible pump in a pre-cast manhole.
The parties to this sector determination joined issue as to whether the Brookfield Sewage Pumping Station fell within the ICI sector or the sewer and watermain sector. There was, however, little dispute amongst the parties regarding the applicable jurisprudence. Indeed, the parties each relied on many of the same cases. Chief amongst these were The Heavy Construction Association of Toronto, [1973] OLRB Rep. May 245, West York Construction Limited, [1983] OLRB Rep. Dec. 2132, Sword Contracting Limited, [19851 OLRB Rep. May 743, Steen Contractors Limited, [1989] OLRB Rep. Nov. 1173, Dufferin Construction Company, unreported decision, August 31, 1992, and Matthews Contracting Inc., [1993] OLRB Rep. Dec. l332, application for judicial review dismissed March 2 1995.
Having reviewed that jurisprudence and the submissions of the parties, we find the following principles to be applicable to the case before us: In a sector determination where the issue is whether particular work falls within the ICI sector or the sewer and watermain sector, the primary focus is the end use of the construction work in issue. Where an end-use analysis is determinative of the sector, it is unnecessary to inquire further. Where an end-use analysis is not determinative, it is necessary to inquire further and examine "work characteristics" to determine into which of the seven sectors of the construction industry the work in issue falls.
This proposition was first enunciated in the very first reported sector determination rendered in The Heavy Construction Association of Toronto, supra, where the Board stated:
- We must thus turn to an examination of the meaning of section 106(e) [now 119] of the Act which defines the term sector. An examination of that definition indicates that it contains three components. The first component is that sector is a division of the construction industry. The term construction industry is defined in the Labour Relations Act in section 1(l)(f) [now 1(1)] which reads as follows:
1 .-(l)(f) "construction industry" means the business that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site thereof.
Although certain terms appearing in the definition of construction industry also appear in clause (e) of section 106, the relationship between these two definitions is not sufficient to afford any assistance in interpreting the meaning of the term sector.
The second component of the definition in clause (e) of section 106 sets out the method by which divisions of the construction industry are to be determined. Thus, the divisions of the construction industry which constitute sectors are to be "determined by work characteristics". On the other hand the expression “work characteristics" is one which is open to a variety of meanings and the problem of interpreting this section is largely one of ascribing the correct meaning to this expression.
The third and remaining component of the definition of sector is the enumeration of seven sectors of the construction industry which are included as meanings of the term sector of the construction industry. These, in turn, raise the additional problem of ascribing the correct meaning to each of the individual sectors so enumerated.
Although the definition of sector can be broken down into these three component parts, clearly the starting point in interpreting the statutory language used in the definition is the observation that they constitute one definition in the Act. Thus, it is clear that when the legislature enumerated the specific sectors set out in the definition it must be taken to have applied the test set out in that section when enumerating the sectors named therein. That is to say the enumerated sectors are divisions of the construction industry determined by work characteristics. Thus, the enumerated sectors give us a key to interpreting the expression "work characteristics" and in turn once the expression work characteristics is clarified this will provide assistance in the correct interpretation of each of the enumerated sectors.
An examination of the enumerated sectors in clause (e) of section 106 leads to the conclusion that for all but one of the sectors listed the names given to these divisions of the construction industry relate to the use which is ultimately made of the construction. At first this may appear to be somewhat of a puzzle in that the connection between the use of the construction and the work characteristics may not be obvious. Upon examination, however, it becomes clear that the use that is ultimately made of the construction will to a large extent determine the task or the work to be performed at the construction site. The task in turn will have certain characteristics which make that project distinguishable from other types of construction. Thus, each of the sectors enumerated, by focusing on the different end uses of the construction, distinguishes one type of construction from other types of construction on the basis of peculiar tasks which are common to that type of project. The work characteristics which distinguish one sector from the other sectors of the construction industry may be shown in terms of the type of problems to be dealt with at the job site, the types of solutions resorted to at certain job sites, the material used, the relative importance of various specifications, the variety of skills and trades, and certain characteristic relations with employees. This list of characteristics is not to be thought of as exhaustive, but as examples of particular characteristics which differ between the various sectors enumerated in the Act.
Having given a meaning to the test for determining sectors on the basis of work characteristics we can now turn to use this meaning as a tool for obtaining the criteria which separate one sector from another sector of the construction industry. However, as noted above there is one sector which unlike the other sectors enumerated in the Act does not refer to the end use made of the construction in that sector. This is the heavy engineering sector, which is the subject matter of this application. The name of this sector comes from the view that the division of the construction industry with which it is concerned has distinct peculiarities. As the name implies the problems faced in such construction projects are primarily engineering problems as distinct from design or architectural problems. Thus, for instance, these are projects in which it is more important that they serve their intended function rather than be attractive. The other characteristic of construction in this sector is that it involves the use of "heavy equipment". That is equipment which is capable of lifting, for example, heavy steel or concrete beams or equipment that is capable of moving huge amounts of earth, stone or concrete. Perhaps the classic example of a heavy engineering project is the construction of a large bridge.
[emphasis added]
In the vast majority of sector determinations rendered by the Board since 1973, an analysis which focuses first on the end use of the work in issue and thereafter on the work characteristics has been employed.
In this sector determination, after reviewing all of the viva voce and documentary evidence, we have concluded that an end-use analysis is determinative of the question to be answered in this sector determination as to whether construction of the Brookfield Sewage Pumping Station falls within the industrial, commercial and institutional sector of the construction industry or the sewers and watermain sector of the construction industry. We have therefore found it unnecessary to consider whether the work characteristics of this project point more to the ICI or sewers and watermain sectors of the construction industry. Accordingly, our abbreviated summary of the facts will focus on the end-use analysis and not the work characteristics of the project.
We note at the outset that the parties filed extensive written Briefs and documentary evidence with the Board. In addition, the parties agreed upon certain facts thereby obviating the necessity of calling much evidence (particularly as it related to other similar work performed by other contractors pursuant to either the terms of the Carpenters' or Labourers' provincial ICI collective agreements, or the Labourers' civil engineering agreement). Given our view on the matter of the "enduse" of the Brookfield Pumping Station had this evidence not been agreed upon, the calling of such evidence, ultimately would only have unnecessarily prolonged the hearing of this matter.
The District Municipality of Muskoka determined to construct a trunk sewer to service future development in the western portion of the Town of Bracebridge. To do this, the Municipality let two contracts out for tender at approximately the same time. The first contract covered the installation of sanitary forcemain, sanitary sewer and watermain which serviced the proposed new development area. This contract was ultimately let to Targa Limited and does not form part of this sector determination. The second contract was for the construction of the Brookfield Pumping Station. This contract was let to Duntri. Duntri performed the work using members of the Labourers' union and pursuant to its non-ICI agreement, with that union as it was of the view that the work fell within the sewer and watermain sector. It is this work which forms the subject matter of this sector determination.
At the time the District Municipality of Muskoka first considered its need to service future development in the western portion of the Town of Bracebridge, the Town of Bracebridge had an existing water pollution control plant ("sewage treatment plant"). As a result of a report prepared by Totten Sims Hubicki Associates, Engineers, the District Municipality of Muskoka considered several alternatives. One of these alternatives was to construct a new pumping station at the southern end of the service area which was to be serviced by the new trunk sewer. This pumping station would pump the sewage collected in the new lines to the existing sewage treatment plant. Another alternative was to construct a new sewage treatment plant at which the additional sewage flow from the newly serviced area would be treated. Although we did not hear any evidence from the decision-makers at the District Municipality of Muskoka, based on the content of the report by Totten Sims Hubicki it is reasonable to conclude that for reasons relating to cost and the environmental approval process, the Municipality opted to construct a new pumping station which would pump the additional sewage flow from the newly serviced area to the existing sewage treatment plant. In the result, the sewage collected in the new sewer lines would be treated at the existing sewage treatment plant (in the same manner as the sewage collected from other existing sewer lines and pumping stations throughout the Town of Bracebridge).
The need for a pumping station was the result of the topography of the area. The existing sewage treatment plant and lagoons were located on the south side of the Muskoka River. The sewage treatment plant and lagoons are located at a ground elevation of approximately 238 metres. The invert elevation of the new sewer line was approximately eight metres lower and was on the other side of the Muskoka River. In order to move the sewage along to the lagoons and treatment plant, therefore, it was necessary to construct the pumping station (in the evidence sometimes referred to as a "lift station") to pump the sewage from the lower to a higher elevation and on to the sewage treatment plant.
It is useful at this stage to briefly refer to the evidence of the witnesses as it relates generally to sewage systems and sewage treatment facilities. It is undisputed that a sewage system may rely upon gravity to transport sewage collected from one point (i.e. a residential or industrial development complex) to another point (i.e. a treatment facility or another sewage system). Unless the topography is such that there is a large drop in elevation, gravity and the natural slope of land however, will generally only transport the sewage so far. It was not disputed that at some point gravity ceases to be an economical method of continuing to move the sewage along to its intended destination as the depth of the system simply becomes too great. Thus, if the distance between the point of origin of the sewage and the point of destination for that sewage (i.e. the treatment plant) is too great, or if the topography is hilly, it may become necessary to have pumps or pumping stations installed or order to keep the sewage moving to its intended destination. In addition, pumps or pumping stations are generally installed at the sewage treatment plant itself in order to, inter alia, control the flow of sewage to be treated or to lift the sewage into the plant for treatment or processing.
The Brookfield Pumping Station is a three-level structure. Two levels are underground. The third level is a superstructure or building aboveground which, from outward appearances, looks much like a house. The top level of this structure houses a diesel generator which operates the pumps underground, a fuel storage area and a washroom and work area for persons working in the facility.
The belowground portion of the Brookfield Pumping Station is essentially a large, formed in place, reinforced concrete box with an inlet channel through which sewage from the adjacent sewage line is drawn. Sewage drawn into the pumping station flows through a bar rack or inlet grate to a lower chamber called the wet well. From there, pumps push the sewage up along to forcemains and then pump the sewage through the forcemain back into the sewer system and on to the sewage treatment plant.
What then is the function or end use of the Brookfield Pumping Station? Counsel for the Carpenters asserts that this pumping station is not a sewer and watermain project as is evident inter alia from the fact that it is not a large or small pipe carrying sewer or rain-water. The work involved certainly did not consist primarily of trench excavation and the laying of pre-cast concrete sewer pipes -work which one would normally associate with a sewer and watermain project.
Counsel for the Carpenters asserts that the pumping station does not merely enhance the flow of sewage. Rather, the function of the pumping station is to control the movement of sewage as part of a treatment process. The sewage is moved, put under pressure and pumped out to a sewage treatment plant for processing. The control of the movement of the sewage is part of that processing function. In addition, the bar rack or inlet grate in the pumping station itself performs a processing function insofar as it screens large items and grit.
Counsel for the Carpenters also referred to various factors which, although they related primarily to the issue of "work characteristics" (broadly defined) could also be indicative of the processing-type functions carried on at the pumping station. Thus, for example, the superstructure aboveground is more likely to be associated with a processing function. The equipment in the pumping station (including the pumps themselves) and the mechanical and electrical components of the project (both in terms of the kind of equipment and the extent of the equipment present) are also more likely to be associated with a processing function.
We are unable to accept counsel's characterization of the function or end use of the pumping station. The evidence discloses that the pumping station does not treat or process the sewage in any fashion, but merely moves it along from its point of origin to its point of destination. Sewage which enters the pumping station is not processed or even held for settling purposes at the pumping station. It is simply moved along and is no more an adjunct of the treatment process than the sewer pipes which carry the sewage.
Although it is true that sewage is measured both as it goes into, and exits from, the pumping station, the measuring which occurs is simply a measuring of flow. It merely enables the treatment facility which ultimately processes the raw sewage to determine the capacity of that which will subsequently be processed. The pumping station does not increase the capacity of the sewage.
The bar rack or inlet screening also does not process, treat or "settle" the sewage. Its purpose is to protect the pumps from becoming plugged and to prevent large items from entering the pumps. The bar rack or inlet screen is merely a series of parallel bars with spacing of approximately one inch. Unlike a sewage treatment plant or lagoon, the bar rack or inlet screen does not perform a "settling" type function, as was the case of the water storage tank in Matthews Contracting, supra.
Sewage treatment plants, lagoons and even the water storage tank in Matthews Contracting all affect the material stored or treated and in this way can be said to be part of the "processing" of the material. Thus for example, lagoons and the underground water storage tank improve the quality of material held through a "settling" function. The Brookfield Pumping Station does none of these things. It simply assists in the carriage or transport of sewage from point of origin to point of destination at a time when gravity and topography render it inefficient or impossible for the sewage to continue flowing through sewage pipes. Indeed, the pumping station's function is quite the opposite to settling. Rather than permitting the sewage to settle, its function is to continue to move it along the sewage lines to the treatment or "processing" facility. The functions of settling, disinfecting, aeration, etc., which one would normally associate with the processing of raw sewage do not take place at the Brookfield Pumping Station and are not affected by that station. The sewage which entered the pumping station untreated, leaves the pumping station, in the same untreated form.
In Matthews Contracting, supra, the Board referred to work which may exist at the 'juncture of two sectors". In our view, that is the difficulty with the case of this pumping station which is physically separate from the treatment or processing facility and yet which is not something which one would readily or easily identify as a sewage (as opposed to a sewage treatment) system. On balance, however, we have concluded that, although close to the dividing line between a "processing" facility (which would normally be considered to be in the ICI sector), and work such as sewer "line" work (which is typically considered in the sewer and watermain sectors), ultimately the end use of this pumping station falls within the sewer and watermain sector.