International Brotherhood of Painters and Allied Trades, Glaziers Local 1819 v. Rybrek Construction
File No.: 2581-99-R Date: June 16, 2000
Before: David A. McKee, Vice-Chair.
Appearances: Ursula Boylan, Sean Keogh, Ian Poole, James Dixon and Rich Atton for the applicant; Kevin Gallagher and Jay Rider for the responding party.
DECISION OF THE BOARD
- This is an application for certification brought pursuant to the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995, ch. 1 (“the Act”). At the commencement of the hearing, the parties advised the Board that they had agreed that the appropriate bargaining unit was as set out in the responding party’s response, namely:
all journeymen and apprentice glaziers and metal mechanics employed by the responding party in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, and in all other sectors of the construction industry, excluding the industrial, commercial and institutional sector, in OLRB Area No. 6, save and except non-working foremen and persons above that rank.
The only issue for the Board in this case is the proper characterization of work performed on the application date. Both parties agreed that the Board’s general approach of looking only at the work done on the application date was appropriate for this application. Further, there was agreement about the nature of the work performed as described in a statement prepared by Kevin Gallagher, principal of the responding party. The only issue between the parties was whether the work was performed by persons who come within a bargaining unit of journeymen and apprentice glaziers and metal mechanics.
The work took place at the Grand Valley Institute for Women, a correctional facility in the Kitchener-Waterloo area. Rybrek received the contract for the work from Sherwood Windows (“Sherwood”). Sherwood had the original contract for the supply and installation of windows when the facility was being built. The windows consisted of pre-fabricated wood-frame windows with casement opening devices. Soon after the windows were installed, Sherwood received complaints from the administrators of the facility that cold air and dampness were entering the buildings around the windows. The Ministry of Correctional Services held back a substantial portion of Sherwood’s money until the problem was fixed. Sherwood retained Rybrek to fix the problem.
Rybrek discovered that the previous subcontractor had installed the window and attempted to create a seal around the window by using the paper covering from the Tyvec (a structural component) as a vapour barrier. The paper was not properly used (assuming it even could be) and no seal was created. Rybrek determined that the way to fix the problem was to uncover the original window frame, create a seal with a vapour barrier called blueskin (a trade name) and aluminum flashing, and then to replace the siding, facia, and other materials to recreate the exterior surface of the building.
In simplified form, the work performed by all three employees on four windows on the application date was as follows:
Cut away the vinyl siding and existing caulking around the window edge.
Remove facia boards, cedar sill and perimeter cedar trim, using pry-bars and hammers.
On one window, a groove was routered into the plywood around the window frame, as this was necessary to create sufficient space to anchor the blueskin to the structural frame of the building.
The existing Tyvec paper was stapled back into place.
A moisture barrier (the blueskin) was applied, using staples and heat, creating a seal between the wooden window frame and the plywood wall sheathing.
An existing cedar sill was cut lengthwise, to narrow it as the new moisture barrier encroached into the space originally occupied by the sill. The cedar sill and trim was then reinstalled.
In one or two instances, water seepage had caused plywood to rot or split. This plywood was replaced.
The aluminum flashing was attached over the blueskin, window and plywood wall sheathing.
Another strip of moisture barrier was applied over the aluminum flashing.
A new piece of facia was nailed over the top of the window.
Although it was not performed on the application date, Rybrek’s intention was to replace the caulking and any siding cut away.
In the Board’s view, virtually all of the work performed on the application date was work within the trade of a glazier. The owner of the buildings correctly identified the problem as defective window installation. Mr. Gallagher’s evidence was that Rybrek was contacted because the supplier of the windows, Sherwood, was not paid a substantial portion of its contract price as a way of forcing it to remedy the deficiency. Sherwood contacted Rybrek, a company which according to Mr. Gallagher had a business which is fifty percent general contracting and fifty percent glazing work, and which had done considerable glazing work for Sherwood in the past.
Rybrek was retained, not to replace rotting plywood or to redo the wooden sills on the windows. It was retained to stop the leak at the window opening. The essence of the work was the creation of a vapour barrier by means of blueskin and aluminum flashing. That was the core and essential activity of the repair job.
It is true that, during the initial construction, not all of this work would have been done by glaziers. The Board accepts Mr. Gallagher’s evidence that a frame structure would have been built by carpenters (as this building was constructed of wood frame). Had the building been constructed of block or brick, a mason would have erected the structure. During the erection of the structure, the carpenters or the masons might have installed the blueskin vapour barrier into the structure they were building. It would hang loose in the window opening waiting for the glazier. However, it would have been a glazing sub-trade, or a crew of glaziers, who installed the window frame and who ensured that the air and moisture-tight seal around the window frame was properly installed. As noted, it was the failure of Sherwood’s previous window subcontractor to do this that led to the need for the repairs. As it was, the subcontractor attempted unsuccessfully to achieve this result with the Tyvec paper, a technique which failed. The essence of the work assigned to the three employees was to repair, and in some senses to install in the first place, the air and moisture seal associated with the window. The other work, removing caulking, siding, facia and Tyvec paper was all incidental to this work. It is necessary to get the exterior cladding and trim off the window in order to perform the work. Material damaged in the removal had to be replaced. Sills were narrowed to accommodate the greater thickness of the new vapour barrier once the blueskin was installed. Perhaps the only work not precisely incidental to the sealing of the vapour barrier was the replacement of rotted plywood on the structural wall. This work would only have involved a small portion of the day.
The Board’s emphasizes that this decision is not intended to define the work jurisdiction of glaziers for all time and in all contexts. Even absent a jurisdictional dispute with another trade, it is entirely possible that, in the course of constructing the buildings for the first time, the work associated with the installation of structural members and trim (which might include the fastening of one edge of the vapour barrier to the wood or block structure), the facia, siding and possibly the caulking would not necessarily be the work of the glazier. Most likely some or all of it would have been done by other trades. Much depends on the context in which the work is performed. This job involved the repair of windows, and the work necessarily incidental to the performance of that primary task and in that context is work which brings the three individuals into the bargaining unit of journeymen and apprentice glaziers and metal mechanics.
Accordingly, the Board finds that all three employees were engaged in work such that it brought them within the bargaining unit.
On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant.
Section 160(1) of the Act, which states as follows, provides for the issuance of more than one certificate if the applicant has the requisite support:
- (1) The Board shall certify the trade unions on whose behalf an application for certification is brought as the bargaining agent of the employees in the bargaining unit if more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade unions. The Board shall issue one certificate that is confined to the industrial, commercial and institutional sector and another certificate in relation to all other sectors in the appropriate geographic area or areas.
Therefore, pursuant to section 160(1) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the International Brotherhood of Painters and Allied Trades and the Ontario Council of the International Brotherhood of Painters and Allied Trades in respect of all journeymen and apprentice glaziers and metal mechanics in the employ of Rybrek Construction in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.
Further, pursuant to section 160(1) of the Act, a certificate will issue to the applicant trade union in respect of all journeymen and apprentice glaziers and metal mechanics in the employ of Rybrek Construction in all sectors of the construction industry in the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township) , excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non‑working foreman.
The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.
The responding party is directed to post copies of this decision immediately, adjacent to the "Notice of Vote and of Meeting" posted previously. These copies must remain posted for a period of 30 days.
“David A. McKee”
for the Board