International Brotherhood of Electrical Workers, Local 353 v. Delta Catalytic Industrial Services Ltd., 1997 CanLII 15544

[1997] OLRB REP. NOVEMBER/DECEMBER 979

0988-96-G International Brotherhood of Electrical Workers, Local 353, Applicant v.

Delta Catalytic Industrial Services Ltd., Responding Party v. General Presidents'

Maintenance Committee, Intervenor

BEFORE: Robert Hermnan, Alternate Chair

APPEARANCES: L.A. Richmond and D. Hasky for the applicant; Daryn Jeffries, Roy Filion and Gord Duggan for the responding party; Chris G. Paliare and Steven Smillie for the intervenor.

DECISION OF THE BOARD; November 28, 1997

1. This is an application pursuant to the provisions of section 133 of the Labour Relations Act, 1995. It was filed on July 2, 1996. There were a number of hearing days dealing with other matters, but ultimately the matter was heard on the merits on October 15, 1997.

2. There is no dispute that the responding party, (hereinafter referred to as "Delta Catalytic"), was at all applicable times bound to a collective agreement with the applicant (also referred to as "Local 353"). This agreement (the "Principal Agreement") covers, amongst other matters, "construction" work in the ICI and other sectors of the construction industry. Similarly, there is no dispute that Delta Catalytic did not apply the terms of the Principal Agreement to the work here in issue. Instead, Delta Catalytic applied the terms of what will be referred to as the "General Presidents' Maintenance Agreement" or "GPMA" (more accurately, the "General Presidents' Maintenance Committee for Canada Project Agreement for Maintenance by Contract in Canada for Petro-Canada Products Lim­ited"), an agreement applicable to the Mississauga Refinery site of Petro-Canada, which is where the work took place. The agreement is between Delta Catalytic and 12 International building trade unions, including the IBEW, and it covers "maintenance" work. The instant decision determines whether the work in dispute is "construction" work, covered by the Principal Agreement, or "maintenance" work, covered by the GPMA.

Background

3. The General Presidents' Maintenance Committee for Canada ("GPMC") is a council of 12 International trade unions which negotiates and administers multi-craft collective agreements covering on-going maintenance work performed by building trades persons at locations throughout Ontario and the rest of Canada. The GPMC currently administers agreements which deliver between six and seven million hours of maintenance work to building trades persons in Canada each year.

4. Its authority with respect to negotiations for and administration of collective agreements is covered by its Constitution and By-laws, as signed by its 12 constituent members. The GPMC has negotiated collective agreements for maintenance work at the Petro-Canada Products Limited refinery in Mississauga since the 1960's, and the work in question was performed by Delta Catalytic at this refinery pursuant to the provisions of the currently applicable GPMA covering that site.

5. One objective of the GPMC is to enter into collective agreements which provide employ­ment to building trades persons for maintenance work, and do so because the wages and other conditions in the agreements are competitive. The concern is that major industrial customers, such as Petro­Canada, might choose to have the work in question performed by their own in-house unionized or non-unionized staff, with the result that work otherwise available to the building trades would not be performed using their members.

6. The work in dispute was all performed under the terms of the GPMA. Although members of Local 353 were used for most, if not all, of the electrical work in question, the employer applied the terms and conditions of the GPMA to the work, and not the terms and conditions of the Principal Agreement. Local 353 objected, asserting that the work was properly "construction" work, encompassed by the Principal Agreement, and ultimately, a grievance and the instant application were filed. As initially filed, the applicant asserted that the Principal Agreement had been breached with respect to 50 different pieces of work. The parties were able to narrow the dispute to eight pieces of work. None of the eight items remaining in dispute were amongst the 50 items originally the subject of this application.

7. It is agreed that the only issue for the Board to determine is whether each of the eight items of work in dispute is properly characterized as "construction" work, within the meaning of the Act, and therefore properly the subject matter of this application. It is not disputed that if the Board determines that the work in question was "construction", then the employer would have breached the Principal Agreement through its failure to apply the terms of that agreement to that work,

8. The GPMA is a comprehensive agreement. It defines the scope of the work covered thereunder as follows:

ARTICLE 5.000 - SCOPE OF WORK:

5.100 The scope of this Agreement covers all work of a maintenance, repair and renovation nature, assigned by the Owner to the Company and performed by the employees of the Company covered by this Agreement, within the limits of the Owner's plant site.

5.200 The scope of this Agreement does not cover work performed by the Company of a new construction nature which is work required to erect new facilities in which event the work shall be done in accordance with existing building construction agreements.

5.300 The Unions and the Company understand that the Owner may, at his discretion, choose to perform or directly subcontract work for any part or parts of the work necessary in his plant.

ARTICLE 6.000 - DEFINITIONS:

6.100 Maintenance shall be work performed for the repair, renovation, revamp and upkeep of property, machinery and equipment within the limits of the plant properly.

6.101 "Long-Term Maintenance" shall be the continuing work performed of a main­tenance, repair, renovation character within the limits of the plant properly exclusive of "Short-Term Maintenance" defined below.

6.102 The Company will designate the anticipated number of Long-Term Mainte­nance force job openings at the pre-job meeting and from time to time as job conditions warrant.

6.103 "Short-Term Maintenance" work means work that is terminated within 30 available days of work.

6.200 All work performed by the Company on existing equipment and machinery, including all associated work in a given plant, shall be maintenance. This shall include replacement of existing individual items of machinery and equipment with new units, including all associated work. It is understood that this concept would not include replacement of an entire process system installation in a plant in order to increase production.

6.300 Addition of spare machinery or equipment may be done under the Maintenance Agreement provided it is for debottlenecking purposes. Example: There are two existing pumps. Both pumps are required to run at all times to maintain full production. A spare may be added for the purpose of having one pump down for maintenance.

6.400 Changes to existing units for reasons of feed stock changes or fuel changes shall be maintenance.

6.500 The work "repair" used within the terms of this Agreement and in connection with maintenance, is work requested to restore by replacement or by revamp of parts of existing facilities to efficient operating conditions.

6.600 The word "renovation" used within the terms of this Agreement and in connection with maintenance, is work required to change by replacement or by 'revamp" of parts of existing facilities to efficient operating conditions.

6.700 Fire restoration work will be administered as follows:

6.701 The restoration of a plant completely destroyed by fire is considered construc­tion work.

6.702 The restoration of a major part of a plant including several sections which have been destroyed or damaged by fire, shall be governed by the following criteria:

(a) The removal of damaged equipment and the preparation of the damaged area to make it suitable for new equipment will be Mainte­nance.

(b) The installation and erection of new equipment will be Construc­tion.

6.703 When the fire damage is localized to a given operating unit, such as a heater, distillation tower, compressor, pumphouse equipment and the like, then the restoration of same is to be considered Maintenance.

6.800 The administration and interpretation of this Article is the responsibility and prerogative of the General Presidents' Committee for Contract Maintenance in Canada.

9. As can be seen, Article 6.800 states that it is the responsibility and prerogative of the General Presidents' Committee for Contract Maintenance in Canada (or the GPMC, as referred to herein) to deal with matters of interpretation of Article 6. Article 7.000 sets up a grievance procedure:

ARTICLE 7.000 - GRIEVANCE PROCEDURE:

7.100 It is agreed that it is the spirit and intent of this Agreement to adjust grievances promptly. All grievances, including discharge for just cause, but not those pertaining to jurisdictional disputes that may arise on any work covered by this Agreement, must be initiated within fifteen (15) working days of the incident by either the employee in Step I or the Local Union in Step II and shall be handled in the following manner:

10. Article 8.000 deals with jurisdiction, and reads as follows:

ARTICLE 8.000 - JURISDICTION:

8.100 Project maintenance conditions do not always justify adherence to craft lines which, in itself, does not establish precedent or change the appropriate jurisdiction of the crafts involved. Composite crews may be formed where conditions warrant, but this is not to be construed under regular operating conditions as the Company's prerogative to assign men out of their usual skill classification.

8.200 The Company may, if it desires, maintain a variety of skills, within its group of employees to be prepared to have skills and/or supervision for any type of work that may arise.

8.300 It is understood that all employees will work together harmoniously as a group and as directed by the Company.

8.400 In the event that any jurisdictional disputes shall arise between two or more Unions represented by this Agreement, an immediate assignment of the work in question shall be made by the Company representative, based upon decisions and agreements of record or other information available. The work is then to continue and, if any of the Unions involved are not satisfied with the assignment, the matter shall be referred to the International Office of the Unions involved for a project decision.

8.500 The Company and the Unions agree that such assignment of work involved in a jurisdic­tional dispute is imperative to the satisfactory operation of this Agreement and the continued operation of the Owner's plant.

11. After the filing of the instant application, a subcommittee of the GPMC, acting on its own initiative, met at the Petro-Canada work site, along with representatives of Delta Catalytic, in order to review the work in dispute. The subcommittee was composed of a representative from the IBEW, along with representatives from the International Boilermakers and the International Ironworkers, and the Executive Director of the GPMC. The subcommittee reported to the GPMC on November 21, 1996, and the GPMC itself issued a decision, on or about March 25, 1997, by which it determined that all of the items in dispute, save one, were properly characterized as "maintenance" work and were to be performed under the GPMA. It determined that the remaining item was properly characterized as "construction" work. It is worth setting out the introductory part of the decision of the GPMC:

Background:

This decision arises out of an unusual string of events and actions taken by Local 353 of the I.B.E.W.

In June of 1996 Local 353, through its lawyer, advised Delta Catalytic that it was disputing in excess of 50 items of work. This work had been performed under the General Presidents' Mainte­nance Agreement and the local alleged such work was construction. At the same time, Local 353 advised the company it would be referring the dispute directly to the Ontario Labour Relations Board under the Section 133 arbitration provisions of the Labour Act.

Local 353 did not grieve this dispute through the grievance procedure nor did it request the General Presidents' Committee to review the work and make a determination as per its prerogative under Article 6.700 of the General Presidents' Maintenance Agreement.

Through subsequent hearings at the Ontario Labour Relations Board, Local 353 narrowed its complaint to 13 items of work. The company researched these items fully and provided information to all parties. This Committee, in the face of this dispute, decided on its own to investigate these items and make a determination as to whether the work was maintenance.

On November 12, 1996, a G.P.C. sub-committee met at the site with Delta Catalytic, reviewed the work, relevant drawings and inspected each job in the field. The sub-committee's decision was presented to the full Committee at a meeting held November 21, 1996 in Winnipeg. The sub­committee decision was endorsed as a decision of the full Committee.

The Work in Dispute and Decision:

The November 12, 1996 Site Sub-Committee was composed of:

William Warchow, I.B.E.W.

George Henry, Boilermakers.

Don Oshanek, Ironworkers.

Steve Smillie, G.P.C. (recording)

Present for the Company:

Gord Duggan, Area Manager.

Bruno Barazza, Superintendent.

Daryn Jeffries - Legal Counsel

12. As a result of this decision, Delta Catalytic acknowledged it had breached the Principal Agreement with respect to the work found by the GPMC to be "construction" work, which was the work performed on the Phoenix Temporary Feeder.

13. The applicant asserts that the eight projects or bundles of work remaining in dispute are all "construction" work. Delta Catalytic asserts that they are all properly characterized as "maintenance" work. In addition, both Delta Catalytic and the GPMC submit that the Board ought to defer to the decision of the GPMC, reached on March 25, 1997, and adopt its determination as to the proper characterization of the work in dispute. Failure to do so, in their submission, would undermine the many years of stability enjoyed by the employers in this sector of the industry, and seriously impede their ability to remain competitive, and undermine the many years of stability and work opportunities obtained for members of the building trades unions. They note that no other local union is challenging the role and effect of the GPMA's. In the circumstances, they submit, the Board ought to accede to the GPMC's characterization of the work, unless it was patently unreasonable, or unless there is a compel­ling reason otherwise. As they put it, the main players in this industry are the International Unions, and they have determined, through their membership on the GPMC subcommittee, that the work in dispute is "maintenance". The Board ought to endorse that decision, both in recognition of the expertise of the decision-makers, and for the overall good of the process.

The Decision

14. The first question for the Board is what weight or effect to give to the decisions made by the GPMC. The Board begins by acknowledging the very real value of the GPMA's, which have been entered into by the industry major players, and which have been applied to work in this sector for decades. Twelve international building trade unions have chosen to enter these agreements, and have chosen to regularly renew them over this time period. These trades have made the assessment, shared by the employer parties to these agreements, that it makes economic and business sense in this sector for a separate legal and regulatory regime to exist for in-house industrial repair and/or maintenance (the word "maintenance" is used here as parties to the GPMA's describe such work in their agreements). These agreements pre-date the existence of the statutorily imposed province-wide ICI collective agreements, and through them, the participants have tried to treat differentially work of this nature, in recognition of the competitive realities prevalent in this sector. The Board has no doubt that the existence of these arrangements, and their application, has enabled the signatory building trade unions to receive work for their members which would otherwise have been contracted on a non-union basis.

15. Whatever the merits of these relationships, structures, mechanisms and collective agreements, when issues do arise in Board proceedings, the Board is guided by the provisions of the Labour Relations Act, 1995. The parties have agreed that this Board is to determine whether the work in question is "construction" or "maintenance", or more accurately, whether it is "construction" work covered by the Principal Agreement. Even absent their agreement in this respect, it is unclear whether the Board would have declined to rule on this issue: see, in contrast, the facts recited in the decision of the Board in Delta Catalytic Industrial Services Limited No. 1, [1996] OLRB Rep. March/April 233, where the Board determined it was appropriate to defer to the GPMC decision-making process.

16. As the Board is to determine the proper characterization of the work in dispute, the role of the GPMC and the impact of its decisions are very limited, and we give very little weight to the decision of the GPMC of March 25, 1997.

17. We say this for several reasons. First, this is the Board's determination to make in the circumstances here, and not the GPMC's. Second, the argument for deferring to the expertise of the GPMC and adopting its decision on the questions in issue, as opposed to deferring to its process and decision-making power, depends to a large extent on the GPMC having reached its decision through the mechanisms set out in the GPMA. The entitlement of the GPMC to make a decision rests upon the claim that the subcommittee, or the full GPMC, was exercising the rights or duties it has under the GPMA.

18. However, it is not evident that the process utilized by the GPMC to investigate and rule upon the work in dispute was duly authorized. The applicant did not grieve (assuming it could have), nor is there any evidence that the International did, as signatory party to the agreement. The GPMC initiated the investigation on its own motion. The applicant in no way participated in the subcommittee process, nor is there any evidence that it was aware that the subcommittee was conducting an investiga­tion and that it would be making a decision on the work in dispute. Presumably, the GPMC was desirous of resolving this dispute "in-house", so to speak, and in a manner which would minimize the potential for disruption of the GPMA scheme, and it therefore took pre-emptive action to ensure, to the extent possible, that the Board had before it the views of the GPMC on the work in dispute.

19. Such an intention would perhaps explain why one of the members of the subcommittee investigating the work was an international representative of the IBEW. Having a representative of the trade involved in the work dispute on the subcommittee investigating the dispute, would appear inconsistent with the GPMC's own procedures for investigating work disputes. As the Board in Delta No. I (above) wrote, at paragraph 16:

Mr. Smillie [Executive Director of the GPMC] testified that Step IV of the grievance procedure, as it relates to the obligations on the GPC contained in Article 6.800, involves the setting up of a committee of International Representatives from unions not involved in the dispute. In this case Mr. Smillie assigned Mr. Gerry Bentley from the U.A. (who served as Chair of the panel), George Henry, from the Boilermakers, and Don Oshanek, from the Ironworkers, who served on the panel as members. Mr. Smillie was present throughout the Step IV process and served as note taker.

20. Third, quite apart from the process utilized by the GPMC in the instant case, its decision offers little guidance to the Board. The decision merely states the conclusions reached by the subcom­mittee with respect to each item in dispute. Generally speaking, the decision of the GPMC gives a very brief description of each item, and then sets out its conclusion that the work is "maintenance" or "construction", as the case may be. There is no analysis, no reference to prior decisions of the GPMC, nor to the definitions contained in the GPMA, nor to jurisprudence of this Board. Given this lack of analysis or detail, the request of the Board that it give deference to the decision of the GPMC amounts in practical terms to a request that the Board merely adopt in its entirety the decision of the GPMC as determinative, simply because it was made by the GPMC. The Board is asked to accept the expertise of the GPMC without any information as to how or why the GPMC made the decisions which it did in the circumstances, and without any ability to assess whether those decisions were reasonable or not. The request to defer to the expertise of the GPMC is in reality a request to defer to its decision-making process, a request inconsistent with the question to be determined by the Board, whether the work is "construction" or "maintenance".

21. For these reasons, the Board has found the decision of the GPMC to be of little assistance.

22. The Board turns then to a consideration of whether the work in dispute is "construction" or "maintenance". The general approach taken by the Board to this question is as described in National Elevator & Escalator Association, [1991] OLRB Rep. Apr. 555:

23. The applicant referred the Board to Levert & Associates Contracting Inc., [1989] OLRB Rep. June 630, where, at paragraphs 12 to 15, the Board dealt with a question regarding whether certain work was in the construction industry or not as follows:

24. The Board has recognized a distinction between maintenance work and construction work since its decision in Tops Marina Motor Hotel, 64 CLLC ¶116,004, the first reported decision interpreting the definition of construction industry in what is now clause (f) of subsection 1(1) of the Act, even though the words maintenance or maintaining are not used in the definition or elsewhere in the Act. The problem always is to make the distinction in a particular fact situation because there is no clear demarcation between maintenance work and Construction and, in the Board's experience, wham the parties see generally as being one or the other appears to be very much us the eye of the beholder. See, for example, Kidd Creek Mines Ltd., [1984] OLRB Rep. Mar. 481, at paragraphs 46 and 47. The Board, of course, must determine whether or not work characterized by a party as maintenance work is construction work for purposes of the Act, not for some more general purpose. The Board's decision in Master Insulators', supra, is the first reported decision which lends some definition to the task of distinguishing maintenance work which is not construction work from repair work which is.

25. The facts here are clear. The dissolving tank and the vapour pipe were functioning fully immediately prior to the shutdown. But, because they both had developed thin areas, it was decided, in the case of the tank, to reinforce those areas and, in the case of the pipe, to replace it because that was more economical than patching or cutting out and replacing the thin areas. The work was not an addition to the recovery and steam plant and was not for the purpose of increasing its production capacity. It was work done for the purpose of avoiding having the tank or pipe fail while the mill was operating. Clearly, it was work which would assist in preserving the functioning of the recovery and steam plant and it was not work done for the purpose of restoring a system which had ceased to function or function economically.

26. These facts distinguish this case from Inscan, supra, on which the applicant relies, where fire damage at a refinery stopped production for three weeks of a feedstock for lubricating oils. That process represented approximately ten per cent of the total product capacity of the refinery. The facts herein are much more analogous to those in Gallant Painting, supra, on which the respondent relies. In that case the Board found that the painting of ". pipes, tanks and other containers...", amongst other things, in two petrochemical plants, was work which "will preserve and protect the structures from corrosion and thereby extend their useful lives.". The patching of the tank and replace­ment of the vapour pipe served to extend the useful life of the recovery systems in the recovery and steam plant of the mill.

27. The fact that there were other contractors in the mill who may have been employing boilermakers pursuant to the boilermakers provincial agreement, an agreement which has application in the industrial, commercial and institutional sector of the construction industry, is of no assistance to the Board in this case. The question the Board must answer is whether the respondent was performing work in the construction industry and was an employer within the meaning of clause (c) of section 117 of the Act. That requires an analysis of the work which the respondent's employees were performing. There is no evidence that the work which they were doing had any connection whatsoever with the work being performed by the other contractors.

[emphasis in the original]

Counsel for the applicant urged the Board to conclude that insubstantial or "minor" work should not be characterized as construction work; that is, that not every correction of a malfunction in an elevator system constitutes construction work.

15. Section 1(1)(f) of the Act defines the construction industry broadly for labour relations purposes:

l.-(l) In this Act,

(f) "construction industry" means the businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site thereof;

The Board's decision in the Master Insulators Association of Ontario Inc., [1980] OLRB Rep. Oct. 1477 is probably the one most often referred to in cases in which the Board must determine whether a particular kind of work is in the construction industry or not. At paragraphs 22 to 24 and 27 to 29 of that decision, the Board offered an analysis which has become the corner-stone of the jurispru­dence on this question:

22. However, the Board, since the introduction of the construction industry provisions into the Act in 1962 in The Labour Relations Amendment Act, 1961-62, SO. 1961-62, c.68, has regarded maintenance as not included in the definition of "construction indus­try" in section 1(1)(f). For example, in the Tops Marina Motor Hotel, case, 64 CLLC ¶116,004, an application for certification was held to be properly made under the construc­tion industry provisions of the Act. In that case the Board, in determining an appropriate bargaining unit of carpenters and carpenters' apprentices, stated that it was not its intention to include in that bargaining unit carpenters who might subsequently be em­ployed to do ordinary maintenance work once the motor hotel was in operation. In the Dravo of Canada Ltd. case, [1967] OLRB Rep. June 261, the Board distinguished between an employer's maintenance operations and its construction operations and in The Board of Governors of The University of Western Ontario, case, [1970] OLRB Rep. Oct. 776, the Board determined that the employer was not operating a business in the construction industry because the employees who were the subject of an application for certification were engaged in maintenance rather than repair. In the Overhead Door Co. of Toronto Ltd. case, [1974] OLRB Rep. July 482, the Board examined the business of an employer who was engaged in the sale, distribution, installation, maintenance and warranty of various types of wood and metal doors and concluded that whether "mainte­nance" is to be considered as part of "construction industry" depends on the type of "maintenance" being performed and on the context of a given employer's operations.

23. The evidence before the Board established that insulators use the same tools, apply the same insulation and exercise the same skills whether the work is clearly new construction, which was agreed by all of the parties to be included within the definition of "construction industry" in section 1(1)(f) of the Act, or is described as either "mainte­nance" or "repair". Indeed, the line of demarcation between "maintenance" and "repair" is not a sharp one. On more than one occasion witnesses who were unable to define either "maintenance" or "construction" expressed confidence that they knew "mainte­nance" and "construction" (and, therefore, "repair") when they saw it.

24. Almost all of the work upon which this complaint is based involved applying insulation in order to maintain or sustain a system that was either producing or capable of producing a product according to its design. In some instances the system or portion of a system was actually functioning during the removal or application of insulation. In other instances a system or portion of a system was briefly closed down or advantage was taken of periodic or annual shutdowns in order to remove or apply insulation.

25. The complainant referred to numerous legal authorities in its argument and its word by word analysis of section 1(1)(f). These authorities were drawn from many jurisdictions and concerned the interpretation of "constructing". "altering", "repairing", "demol­ishing", and "revamping" in contracts and legislation in a wide variety of contexts. However, the Board found none of these authorities to be persuasive. The authorities cited before the Board under scored [sic] the necessity of considering the context in which a word is used in order to interpret its meaning.

26. 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 Stelco, 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 compliant 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 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 1341a(1) of the Act.

27. 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 either 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 part 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.

[emphasis in the original]

16. As is evident from the Master Insulators, supra, case and the Board's subsequent jurisprudence, there is no clear distinction between construction and non-construction work. It is particularly difficult to draw a distinction between "repair" work, which is construction work, "maintenance" work, which is not (see, for example, Levert & Associates Contracting Inc., supra, Briecan Const. Limited, [1989] OLRB Rep. May 417, Inscan Contractors (Ontario) inc., [19861 OLRB Rep. May 640, Kidd Creek Mines Ltd., [1984] OLRB Rep. March 41, Quinard Limited, [1982] OLRB Rep. July 1054). Whether something is repair or maintenance work will depend upon the nature and purpose of the work in question in the context of the facility of system in or to which the work is being performed. Generally, work performed on existing equipment in an existing facility for the purpose of keeping the facility or a system in it operating properly before the facility or system has ceased to do so, is appropriately characterized as maintenance work. On the other hand, work involving the addition to or replacement of equipment for the purpose of either increasing the capacity of the facility or system, or restoring the ability of a facility of system to function properly, is appropriately characterized as repair work. The amount, apparent significance, or value of the work in question may be pan of the context in which the assessment is properly made but are in no way determinative of the question. Similarly, whether a facility or system is shut down while the work in question is being performed may also be relevant, but will not be determinative.

17. The applicant submits that in today's technological world, practically speaking, every time new electrical work is done on a facility, project, system, or machine, it is "construction" work and not "maintenance". Employers will virtually always choose to upgrade electrical systems when work is being done on them, and any work on them will involve new wiring, new conduits, new termination devices or new process control devices, to take some examples. Such work will always, asserts the applicant, enable the facility, project, system, or machine to add to or enhance its capabilities, if only because of the installation of the improved technology.

18. This is too simplistic and microscopic an analysis. The nature of electrical work will inevitably mean that new hardware is installed as part of the work, whether it be wiring or electrical or electronic devices, but this does not inevitably mean that the work is "construction". In some cases, work of this nature may not be meaningfully different in concept from the installation of new piping, new iron plating or new insulation. While the raw material involved may be new, that fact alone will not necessarily be determinative. The Board still must consider the nature and purpose of the work, in the context of the particular facility, project, system, or machine in question. The replacement of an outdated electrical measuring device with an updated electronic measuring device, which may well be more efficient and enhance the measuring capability, will not necessarily be "construction" work, where that is all that is being changed, and where the nature and purpose of the system has neither changed nor has its overall capability or productivity been enhanced. The result will depend on the extent of the change and its nature and purpose. Similarly, the installation of new gauge wiring for old gauge wiring will not necessarily be "construction" work. It is the context and purpose of the work which must always be considered and not only the detail of the work that the particular trade is asked to perform.

19. For its part, Delta Catalytic asserts that the Board's approach in considering whether work is "construction" consists of asking itself the following three questions, a positive answer to any one of which will lead to a conclusion that the work is "construction":

(1) Does the work represent a significant addition to the facility or system?

(2) Does the work increase the design or production capacity?

(3) Was the work necessary to restore a system or part of a system which it ceased to function or function economically?

26. It is with respect to the first question that some comment is appropriate. It represents too simplistic and macroscopic an analysis. Work which does not represent a significant addition to a facility or system can still be "construction" work. To phrase the question as the employer has presupposes the answer, and assumes that only major construction projects or works would be classified as "construction" under the Act. This is not so. As will be seen in some of the items in dispute here, work on an isolated project which is a relatively small and discrete part of a facility or system can nevertheless constitute "construction". The approach taken by the Board remains as described in National Elevator and Escalator (above). Whether the work represents a significant addition is only one factor.

27. With these comments, we deal now with the individual projects or items in dispute.

Effluent Feeder Upgrade

28. The work on this system was necessary in order to comply with provincial environmental legislation. Petro-Canada was required to increase its effluent treatment capacity, as the existing capacity was insufficient to accommodate large amounts of inflow of contaminated storm water during heavy rainfalls or runoffs. Previously, the system had two storm basins, which collected and held the water until it could be treated and released. The work involved the installation of two extra holding tanks, and an increase in the pumping capacities at existing basins or tanks. Six new 200 horsepower pumps were installed, as was new cable, conduit and instrumentation. The instrumentation included new bearing detectors, pressure transmitters, and level sensors. A new 30 foot high bridge was built over the road, and power was supplied along this bridge and to motors situated on a new platform constructed on one of the tanks. A new data line was also installed, to link the new monitoring equipment.

29. The stored water is still filtered, aerated, clarified and tested in the same manner as it was before, to ensure it is free of contaminant before being released into the lake. There has been no increase in the speed with which the water is treated, nor change in the method of treatment. Nevertheless, this work is all "construction". The capacity of the system, albeit its storage capacity, has been increased in order to comply with environmental requirements. The work was done as an enhancement or addition to the system, and not merely to preserve its current function or level of function. Additional tanks were added, additional pumps were added, and completely new electrical systems and instrumentation were added, with monitor systems or parts of the system which did not exist before. But for the need for the increased storage capacity, the system would not have changed. The nature and purpose of the work was to change the system to meet new regulatory requirements, to increase its capacity, and not merely to maintain it. The electrical or electronic work that was performed was part of the "construction" work involved in this project.

Cooling Tower Reliability

30. For environmental reasons, Petro-Canada decided to replace chlorine as its treatment chemi­cal in the Cooling Tower, and to use the more environmentally friendly chemical, Javex, in its place. The corrosion monitoring system was replaced to allow for a portable corrosion rate meter probe instead of the existing manual corrosion monitoring system. Existing transmitters were replaced with flow transmitters, but the existing conduit was re-used in this process. An electronic differential pressure transmitter was installed in the biofilm monitoring system in order to monitor the system at the control room, instead of locally. The oxidizing microbiocide controlling system was altered in order to allow for automated monitoring and water treating, thereby eliminating the need for operators to manually test and treat the water. Instrumentation was changed, which allowed for data to be sent to the control room for monitoring.

31. Although the Cooling Tower still performs the same function, it uses a different chemical process, and a new and different monitoring system, which allows monitoring at the control room, rather than at the local site. The electrical work involved replacing the existing, manual corrosion monitoring system with a new portable corrosion rate meter probe, and the existing pressure transmitters were replaced with flow transmitters utilizing different technology. There was various other new instrumentation and wiring installed in order to allow monitoring from the control room.

32. This is "construction" work. The way in which the process works has been changed, although the purpose and role of the Cooling Tower remains the same. The system itself has been changed, not merely maintained, so that it can perform its function through a different process, with a monitoring system that now monitors a different chemical, and from the control room, rather than locally. This work was designed to change and improve upon the manner in which the system worked, by converting to a new type of system which is able to use a chemical that is less damaging to the environment.

HDN/DDS Unit Revamp

33. This unit removes sulphur and nitrogen from the feedstock and debottlenecks the flow from one unit to another. The system performs the same function, with what appears to be a reduction in capacity.

34. The facts are very sketchy, and it is not entirely clear as to what work was done, or why it was done; however, it appears as if some of the work was done in order to repair the system, or at least to repair the electrical parts of the system, as they were found to be unsafe and unreliable, and some was done in order to change the unit to allow the use of a different feedstock for the removal of the nitrogen and sulphur. New instrumentation, incorporating new technology was installed, along with the necessary new cabling and conduit to support the new instrumentation.

35. The applicant has not established that this work is "construction". The nature and purpose of the unit and system remain the same, capacity is reduced, and the manner of operation has remained unchanged.

Tank 12

36. This tank was converted from a bunker storage facility holding bunker oil, to a wax product storage unit, holding liquid wax. The electrical work involved new conduit and instrumentation, which flowed from the change in the nature of the product being stored. A new power source was installed.

37. This is "construction" work. The capacity has not changed and this is not a significant change to the facility or system, but the purpose of the tank has changed. While the tank remains a storage tank, the nature of the product being stored is different, with all the necessary work performed in order to enable the tank to store the new product, in effect changing the tank's function.

Hydrobon Compressor Cooling System

38. This system was formerly an open system, which cooled the hydrobon unit compressor deck. It had to be checked and filled weekly. For reasons of safety and reliability, and environmental concerns, the system was converted to a closed loop system. More efficient pumps were installed, with relocated new wiring, and new instrumentation to permit remote sensing at the control room. The changes were made to reduce the time spent in checking and filling the system, and to prevent potential contamination of the system which can result from the weekly checking and filling.

39. This is "construction" work. The way in which the system is operated has changed, although its overall function has not, and although it uses the same method of cooling the hydrobon unit compressor deck that it did before. Because of the work, the system no longer has to be filled and checked as it was before. Thus, the work changed the way in which it is run, making it more efficient than it was before and also making it an enhanced system, as the risk of contamination has been reduced.

Fiber Optic Data Highway

40. Prior to the installation of the Fiber Optic Data Highway, Petro-Canada had three control rooms which were unconnected and which could not communicate with each other. The installation of the Fiber Optic Data Highway connected these three control rooms, so that any part of the plant can be controlled through any one of the three control rooms. The purpose of the project was to ensure that, in the event of a system crash in any unit or area due to a broken circuit, there will be no shutdown or down time of units due to the lack of critical monitoring, and also presumably, to enable central control monitoring.

41. This is "construction" work. A new and different monitoring system has been installed, in order to change the manner in which the three control rooms can communicate with each other and the manner in which they can monitor systems. Through the installation of the highway, the three control rooms can now monitor the entire refinery. This is a change in capacity and in the manner in which the monitoring takes place. An entirely new highway has been installed, where none existed before.

Stack Emission Monitoring

42. The boilerhouse stack and the sulphur recovery unit stack at Petro-Canada emit fumes. The monitoring of these stack emissions has always occurred at Petro-Canada, for environmental reasons. Prior to 1985, stack emissions were monitored manually. Between 1985 and 1991, Dragger Tubes were used. Between 1991 and 1995, local electrical readouts in the control room were used to continue this monitoring. This system has now been replaced with a new modern fiber optic link to the computer control rooms, where no fiber optic link previously existed. This system has been upgraded, so that it now complies with environmental regulations and standards, by changing the way in which emissions are monitored. The system worked properly before, and did not require maintenance to ensure that it continued to function properly. Rather, in order to meet increased standards, it had to be upgraded. It now monitors emissions where no monitoring was done before, and new monitoring systems have been installed, not merely replacements. This is "construction" work.

Dock Shelter

43. The Dock Shelter is a portable office, used as a shelter for employees working on the dock. The former dock shelter was getting old and it needed replacing. A new prefabricated shelter was bought and installed on the foundation of the former dock shelter. The electrical work necessary consisted of the wiring of the new shelter and the installation of an air-conditioning system, where none existed before. The work is the installation of a brand new building, with an entirely new system (the air conditioning system) added as part of the installation. This is not merely maintenance, it is "construction" work.

44. We have now dealt with all the work in dispute. As noted, and consistent with the decision of the GPMC of March 25, 1997, it was agreed at the hearing that the work on the Phoenix Temporary Feeder was properly characterized as "construction" work.

45. Where the Board has concluded that the work in question was "construction", the responding party has breached the collective agreement, through its failure to apply the terms of the Principal Agreement.

46. The Board will remain seized with respect to all remedial aspects and any matter arising out of this decision.