Labourers' International Union of North America, Local 837 v. Dufferin Construction Co.
[1998] OLRB REP. JULY/AUGUST 609
4821-97-JD Labourers' International Union of North America, Local 837, Applicant v. Dufferin Construction Co. and United Brotherhood of Carpenters and Joiners of America, Local 18, Responding Parties
BEFORE: D. L Gee, Vice-Chair, and Board Members J. G. Knight and G. McMenemy
APPEARANCES: A. M. Minsky and M. Bastos for the applicant; Joseph Liberman and Jake Sudac for Dufferin Construction Co.; David McKee and Bob Yakiwchuk for United Brotherhood of Carpenters and Joiners of America, Local 18.
DECISION OF THE BOARD; August 11, 1998
- This is a complaint filed under section 99 of the Labour Relations Act, 1995 (the "Act") in which the Labourers' International Union of North America, Local 837 (the "Labourers") requests the Board to make a direction with respect to work described as:
the concrete formwork (ie. all work associated with the on-site fabrication, installation, stripping and dismantling of forms to receive concrete) for the base slab and containment walls built in connection with the salvage and replacement of two high concentration glycol storage tanks.
The parties are in dispute as to which sector of the construction industry the work in dispute is in but are agreed that, if the work falls in a non-ICI sector of the construction industry, such would be determinative as the United Brotherhood of Carpenters and Joiners of America, Local 18 (the "Carpenters") does not claim any work performed outside of the ICI sector by employees of Dufferin Construction Co. ("Dufferin") as it has no bargaining rights with respect to such sectors. It is the Board's determination, for reasons set out below, that all of the work in dispute is outside of the ICI sector such that the work was properly assigned by Dufferin to members of the Labourers.
The work in dispute involved replacing an existing glycol recovery system at the Hamilton International Airport. The parties are agreed that the following description of how the improved system would operate is accurate:
The improved system will function as follows. Airplanes requiring de-icing proceed to the designated area where a tanker truck sprays it with glycol. The glycol will either be sucked up by a vacuum truck or travel across the apron into the catch basins and the storm sewer system. The glycol proceeds through the sewers to the sampling chamber, where the concentration of glycol in the sewage can be determined. If the concentration of glycol is greater than three per cent (3%). the glycol may be pumped out of the sample chamber to the tanks for storage for recycling, if possible. If the concentration is within acceptable levels, it may then be discharged, either directly into the sewer system or into the holding pond for later discharge into the sewer system.
Very little is known about how the glycol is ultimately removed from the tank. Once removed from the tank the glycol is transported to another location, presumably by truck, for processing. No processing takes place in the tank or at any processing facility to which the tank is attached. The tank merely holds the glycol for recycling purposes.
Dufferin's contract involved the demolition and expansion of large sections of the runways, aprons and taxi ways, the installation of new 36 inch sewers lines, catch basins, man holes and the sampling chamber, as well as the excavation for the holding pond. The work in dispute comprised less than two percent of work performed by Dufferin. It is not disputed that the other 98 percent of the work performed by Dufferin is work falling within one of the civil sectors such as roads or sewers and watermains. It is estimated that 75 per cent of the work was roads work and the remainder was sewers and watermain construction. The work in dispute is valued at approximately $24,000. Dufferin's contract was for $1.2 million.
The parties are in dispute as to how to describe the function performed by the storage tanks for which the base slab and containment walls were built. The dispute arises as a result of the Board's decisions in Matthews Contracting Inc., [1993] OLRB Rep. Dec. 1332, affd. (Ont. Div Ct.) [1995] OLRB Rep. March 391 and Duntri Construction Ltd., [1996] OLRB Rep. June 399.
In Matthews Contracting Inc. the Board found the construction of an underground concrete water storage tank to be work in the ICI sector of the construction industry. The tank in question was connected to a pumping station which pumped the dirty water to a water treatment plant located four to five miles away. In addition to a holding function, the tank performed a settling function and contained a device which permitted the sludge which settled to the bottom of the tank to be flushed. The Board concluded that the tank was an adjunct to a system of treating sewage and water which was viewed as an industrial process and thus work in the ICI sector of the construction industry.
In Duntri Construction Ltd. the Board determined that the construction of a raw sewage pumping station fell within the sewer and watermain and not the ICI sector of the construction industry. The Board determined that the pumping station did not treat or process the sewage in any fashion, it merely moved it along from its point of origin to its point of destination. In the Board's view, it was no more an adjunct of the treatment process than the sewer pipes which carry the sewage. The Board distinguished the tank at issue in Matthews Contracting Inc. on the basis that it affected the material stored and could, as a result, be said to be part of the "processing" of the material.
In our view, the tank at issue in the present case is one step further removed from the processing function than was the pumping station in Duntri Construction Ltd. In the present case, not only does the tank have no affect on the material stored within it, the tank is not connected in any way to the facility where the processing takes place. The glycol has to be removed from the tank and transported to the processing facility by truck. In our view, this factor makes the tank at issue in the present case more remote from the processing function than was the pumping station at issue in Duntri Construction Ltd. and accordingly, in our view, the work performed in connection with the glycol holding tank is within the sewer and waterman sector and not the ICI sector of the construction industry.
As a result, the assignment of the work in dispute to the Labourers is upheld.