3062-98-R Greater Essex County District School Board, Applicant v. International Brotherhood of Painters and Allied Trades, Local 1494, Responding Party.

3270-98-U International Brotherhood of Painters and Allied Trades, Local 1494, Applicant v. Greater Essex County District School Board, Responding Party.

BEFORE: David A. McKee, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.

APPEARANCES: L. P. Kavanaugh, Q.C., Jack Sullens, Al Cook and Murray Inverarty for Greater Essex County District School Board; A. M. Minsky, Q.C. and Kevin Elliott for the International Brotherhood of Painters and Allied Trades, Local 1494.

DECISION OF THE BOARD; March 29, 2000

1. These are two applications filed pursuant to different sections of the Labour Relations Act, 1995, R.S.O. 1995, ch. 1 (the “Act”). The first application is brought pursuant to section 127.2 by the Greater Essex County District School Board (“GESB”) for a declaration that the International Brotherhood of Painters and Allied Trades (the “Painters”) no longer represents certain employees of the GESB. The second is an application under section 96 of the Act filed by the Painters which contains, in part, the Painters’ defence to the application. It alleges that the GESB terminated the employment of Kirby Parent, a painter employed under the Painters’ Provincial Collective Agreement, contrary to sections 70 and 72(a). The Painters allege that but for that unlawful termination, he would have been at work on the application date and that therefore the application should be dismissed as the GESB does not meet the qualifying requirements of section 127.2 (2).

2. The two applications as framed by the parties pose three questions:

(1) Is the GESB a “non-construction employer” as defined in section 126;

(2) Did the GESB have any employees on December 3, 1998 (the application date) who were “employed in the construction industry”, i.e.

(i) was the termination of Kirby Parent contrary to sections 70 and 72(a) such that he should be deemed to be an employee on December 3, 1998; and

(ii) were Steve Kasaris and Robert Campbell employed in the construction industry on December 3, 1998.

3. Since the Board finds against the GESB on both of the questions in paragraph 2(i) and (ii), we propose for the purposes of this decision to assume, without finding, that the GESB is a non-construction employer within the meaning of section 126.

4. One of the predecessors of the GESB, the Board of Education for the City of Windsor, had a relationship with a number of building trades unions for many years. For approximately thirty years, it had a collective agreement with the Painters. This collective agreement basically covered the direct employees of the Board of Education for the City of Windsor who are engaged in painting. The current recognition provision describes a bargaining unit of persons employed as “painters, decorators and paperhangers in the Board’s Plant Department (Maintenance), save and except foremen and persons above the rank of foreman” (the “Maintenance Collective Agreement”). The Board was advised that the Board of Education for the City of Windsor had such agreements with other trades. Prior to 1997, there was also an informal use of the Painters’ Provincial Collective Agreement. Article 16.01(b) and 17.01(b) of the current Maintenance Collective Agreement provide as follows:

16.01(b) Temporary employees covered by this agreement shall be paid the full provincial wage rate applicable to such Trade. In addition and in lieu of coverage under the Board’s Welfare Benefits, the Board shall remit monies as set out in Article 17.01(b) hereunder to the appropriate person or firm designated by the union.

17.01(b) The Board agrees to maintain its present practice of remitting benefit contributions to the union for temporary employees hired by the Board. It is understood that the amounts remitted will be the same as construction (ICI) in order that temporary employees may maintain union benefits.

5. The Board was advised that for many years prior to 1997, the Board of Education for the City of Windsor hired “temporary” painters pursuant to predecessor provisions of these two Articles. In 1997 the Painters applied to be certified as the bargaining agent for all painters and painters’ apprentices employed in the construction industry by the Windsor Board. A certificate issued and the Windsor Board became bound to the Provincial Collective Agreement.

6. The Board of Education for the City of Windsor was amalgamated into the Greater Essex County District School Board. This was an amalgamation as defined in Public Sector Labour Relations Transition Act., S.O. 1997 ch.21, Schedule B (the “PSLRTA”) The changeover date was January 1, 1998. The parties advised the Board that the GESB became bound to the Painters’ Provincial Collective Agreement in accordance with the terms of the PSLRTA and, we were advised, a decision of a different panel of this Board.

7. At the time the application for certification was filed, the Windsor Board employed 7-10 painters as part of a larger construction crew renovating and rebuilding classrooms. That number apparently was not usual, but reflective of a single large capital work. Typically, there were three painters employed, although for the latter half of 1998 there was only one painter employed by the GESB, Kirby Parent.

8. After the “Bill 31” amendments to the Labour Relations Act (S.O. 1998, ch. 8) were proclaimed, section 127.2 became part of the Act. The GESB considered its options internally and concluded that it came within the definition of a non-construction employer and determined that it wished to exercise its right to terminate at least the Painters’ Provincial Collective Agreement. Messrs. Al Cook (Facility Services Manager) and Murray Inverarty (Coordinator of Trades and Contracts) consulted with counsel as to the best approach to bring such an application. They decided to bring the application in the week commencing Monday, November 30, 1998.

Kirby Parent – employment status

9. Kirby Parent was laid off on Friday, November 27, 1998. Some argument was directed to the status of Parent. The GESB argued that he was in fact employed pursuant to the Maintenance Collective Agreement, specifically Articles 16 and 17. The following dates were agreed on as Parent’s date of employment with the GESB and its predecessor Windsor Board:

April 13/87 – Nov. 13/87

May 16/88 – Dec. 31/88

Apr. 3/89 – Dec. 1/89

Apr. 2/90 – Oct. 15/91 (removed because of work injury)

Oct. 28/91 – Dec. 18/92

July 5/93 – Dec. 17/93

Jan. 18/94 – Dec. 15/95

June 24/96 – June 30/98

July 13/98 – Nov. 27/98

June 7/99 – [not in evidence].

If there were provisions similar to Articles 16.01 and 17.01, quoted above, in earlier maintenance agreements, it seems that painters hired by the Windsor Board of Education might have been considered to be employed pursuant to those provisions. If they were performing construction work, the terms and conditions of employment were identical to that in the Provincial Collective Agreement and accordingly, questions raised by section 162 of the Act were likely academic. However, it is worth noting that when the Painters applied for certification under the construction industry provisions of the Act in 1997, the Windsor Board did not take the position that the painters then employed were covered by a subsisting collective agreement, perhaps because it did not view such an argument as legally sustainable. It simply asked for an exclusion for “temporary, maintenance employees and those persons performing maintenance”, a limitation on the bargaining unit the Board did not grant. In other words, the Windsor Board did not take the position that painters engaged in construction work were covered by the Maintenance Collective Agreement nor did it persuade this Board to create an exclusion for “temporary employees” from an I.C.I. sector certificate.

10. There was very little evidence about the actual work performed by Mr. Parent. According to Murray Inverarty, Mr. Parent was the first person he would wish to hire from the Painters’ Union (which permits, at least, the GESB to “name hire”). Mr. Inverarty testified: “He’s put in the role of leadership, watching over painting crews, he can coordinate and push along so we can get the kind of product we need”. Neither party asked whether the “crews” were maintenance employees of the GESB or whether they were contractors performing work for the GESB. The word “crew” suggests the former, but given that the number of painters employed was typically 1-3, we conclude he meant the latter. When Parent was recalled in June of 1999, the work he did was clearly construction work, painting and staining lockers and cabinets prior to their installation by construction carpenters.

11. More fundamentally, Articles 16 and 17 of the maintenance collective agreement deal only with wages and benefits. Persons employed under that collective agreement are covered by the entire agreement for all other purposes. Thus, all of the non-monetary provisions of that collective agreement would apply to any employee covered by it, including the seniority provisions and specifically the lay-off provision in Article 8.02. Clearly these Articles were not applied to Mr. Parent.

12. We conclude therefore that Mr. Parent was hired to perform construction work. Since there was no dispute that the terms and conditions of the Provincial Collective Agreement were applied to him, we conclude that he was employed in the bargaining unit covered by that collective agreement and performing construction work prior to his lay-off.

Kirby Parent – severance from employment

13. As indicated, Mr. Parent was laid off Friday, November 27, 1998. Mr. Inverarty testified that there were two reasons for his lay-off: budgetary constraints and the desire to facilitate this application. Much argument was directed at the validity of the budgetary concerns. It is our conclusion that the concerns were real, but were not specifically pressing during the week of November 30. Inverarty testified that he is always under budgetary pressure and is constantly forced to prioritize capital expenditures, the need for which inevitably exceeds the supply of funds. He testified that he was getting near the end of his budget and that the GESB “typically released temporary painters” in November and December. However, Parent’s dates of employment set out above do not indicate a regular annual lay-off (and almost never as early as November 27). No one from any of the other skilled trades groups was laid off at that time. Inverarty was also candid in acknowledging that because of the amalgamation of the school boards, the GESB did not know what its final financial position was going to be as it was not aware of the size of the provincial transitional grant that would be (he expected) forthcoming.

14. Much argument was directed at whether the termination of Mr. Parent represented any monetary savings to the GESB at all. Parent suffered a workplace injury in September of 1998. His claim was allowed on October 1, 1998 as a “no-lost-time injury”. He was assigned to light duties after his injury occurred. The effect of his lay-off, and subsequent inability to obtain other work due to his restrictions, had the inevitable result of activating his claim as a lost-time injury. As a Schedule II employer, the GESB may have paid as much (depending on administration costs) to have Parent off work as it would have if it continued to employ him and assign him to light duties. Be that as it may, we accept the evidence of Mr. Inverarty that he was not aware of the existence of the WSIB claim until after the lay-off had been decided on (but before it occurred). That is, whether he was correct or not in his calculations, there was some budgetary consideration involved in the decision to lay Parent off.

15. More significant, in our view, was the GESB’s intention to bring the instant application. In chief, Mr. Inverarty candidly admitted that the GESB’s decision to lay off Parent on November 27 was motivated by the fact that he regarded this application as a complex one and that he wanted to “remove part of [the complexity] … to make this [application] as uncomplicated as possible”. In cross, he acknowledged that it was in the interest of the GESB to have Kirby “out of the equation” when the application was filed. He believed it was not possible to make the application if an employee was working under the Provincial Collective Agreement, or alternatively, that it would be “easier” if Parent was not there on the application date. Parent’s paycheque and record of employment were delivered to him two days before November 27, rather than the typical five days after the last day worked. We conclude that this was to ensure that the separation from employment was complete before the week of November 30.

16. Following his lay-off, Parent’s injury did not improve and in fact, he underwent surgery in February of 1999. From some point in time not clear from the evidence, a Human Resources employee, Marina Mancini, called him a number of times seeking to have him return to work, even if only to light duties. Mr. Inverarty agreed that it was in the GESB’s economic interest to get him back to work as soon as possible. Doing so would reduce the GESB’s immediate cost, provide rehabilitation potential (thus lowering future potential costs) and provide the GESB with some work in return for payments made to Mr. Parent. Mr. Parent did return to work as soon as his injury permitted on June 7, 1999.

17. The Board concludes, therefore, that one of the reasons for laying off Mr. Parent was a desire to terminate his employment in order to bring the GESB within the scope of section 127.2(2). It was, in our view, the dominant reason for his lay-off, and the only reason for choosing November 27 as the date of lay-off.

18. The Painters allege the decision to lay off Parent constitutes a violation of sections 70 and 72(a) which provide:

19. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

20. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

19. The GESB argues that it cannot be said to have violated either section, since it had a legal contractual right pursuant to Article 25.03 of the Provincial Collective Agreement to lay off any employee with two hours’ notice. It argues that in the construction industry, a lay-off is not the equivalent of a discharge, even though it represents a complete severance of the employment relationship.

20. With respect, even on a contractual level, this is something of an overstatement. There is a prohibition against a discharge without just cause (Article 3.01) and a lay-off may not be used to disguise what is in fact a discharge: Canadian Engineering & Contracting Co. Ltd., [1983] OLRB Rep. July 1017. In any event, statutory rights and prohibitions such as those set out in sections 70 and 72(a) are mandatory and the parties are not entitled to contract out of them. If the statute has been violated, a contractual right to do the same thing (if such exists) is irrelevant. See, for instance, Dr. Hiller’s Peppermint Canada Limited & Karl Mayer, [1979] OLRB Rep. May 375.

21. It is difficult to see how section 72(a) does not apply to the GESB’s actions. To extract the relevant words: “No employer … shall refuse to … continue to employ a person … because the person … is a member of a trade union”. That is precisely what the GESB did in this circumstance. It determined to terminate the employment of Kirby Parent because he was a member of the Painters’ Union, who was employed under the Provincial Collective Agreement and his continued employment would have made the instant application difficult, if not impossible. In our view, this was a discharge and one of the reasons, indeed the main reason, was a motive prohibited by section 70(a).

22. From the advent of the predecessor to section 72(a), both courts and this Board have held that even if the prohibited motive is only one of several motives for an employer’s action in discharging an employee, that employer is in violation of the statute: R. v. Bushnell Communications Inc., (1974) 1973 CanLII 475 (ON HCJ), 1 OR (2d) 442 (appeal dismissed 1974 CanLII 559 (ON CA), 4 OR (2d) 288 (OCA); Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299; The Barrie Examiner, [1975] OLRB Rep. Oct. 745; Barton Feeders Inc., [1993] OLRB Rep. Feb. 89, and Loeb IGA Highland, [1993] OLRB Rep. Mar. 208. Even in circumstances where a discharge or a lay-off was imminent in any event due to economic circumstances, if the timing of the lay-off or discharge is motivated by the fact of an employee’s membership, or anticipated membership in a trade union, the act of discharge is a violation of section 72(a): Barton Feeders Inc., supra, at para. 53; Tillotson-Sekisui Plastics Limited, [1979] OLRB Rep. Oct. 1027 at para. 13; Manor Cleaners Limited, [1982] OLRB Rep. Dec. 1848, at para. 17. Therefore we find that Mr. Parent was discharged contrary to sections 72(a).

23. In addition, this discharge represents a violation of section 70. To some extent, any application under section 127.2 is designed to have an effect on the administration of a trade union, to use that term in its broadest sense. Clearly an application under section 127.2 cannot, in itself, be a violation of section 70. However, in this case, the GESB discharged an employee, Mr. Kirby, for the purpose of preventing his bargaining agent from continuing to represent him under the Provincial Collective Agreement. This constitutes interference in the selection of a union by Mr. Parent and in the representation of that employee by the Painters Union, and as such is a violation of section 70 (see Dr. Hiller’s Peppermint Canada Limited & Karl Mayer, supra, para 31).

24. Two further arguments made by counsel need to be addressed briefly. The GESB argued that since the Painters had not filed a grievance alleging a discharge for unjust dismissal contrary to Article 3.01 of the provincial collective agreement, the union had in fact conceded that this was a proper lay-off, and not a discharge. The Painters did of course file one of the two instant applications alleging a violation of sections 70 and 72(a) arising out of those same facts and seeking all of the relief that could have been sought in a grievance. A further grievance and referral pursuant to section 133 of the Act would add nothing to this case. We do not draw any inference from the fact that no grievance was filed. Similarly, the Painters argued that paragraph 21 of Appendix “A” to the response to the section 96 application filed by the GESB constituted an admission by

that party that it had laid off Parent improperly. We disagree. The paragraph is more an argument than a recitation of facts, and the proposition of law advanced does not amount to an admission of any fact.

Kirby Parent – effect of discharge

25. The effect of this discharge is very straightforward in this application. Section 1(2) of the Act provides:

26. (2) For the purposes of this Act, no person shall be deemed to have ceased to be an employee by reason only of the person's ceasing to work for the person's employer as the result of a lock‑out or strike or by reason only of being dismissed by the person's employer contrary to this Act or to a collective agreement.

Section 127.2(2) provides:

127. (2) On the application of a non‑construction employer, the Board shall declare that a trade union no longer represents the employees of the non‑construction employer employed in the construction industry if, on the day the application is made, the non‑construction employer does not employ any such employees represented by the trade union.

128. The GESB argues that section 1(2) can have no application for several reasons. First, it says that section 1(2) refers only to “discharge” and not to “lay-off”. As noted above, the choice of the term used for the severance of employment is of little importance. Counsel was forthright in stating that the GESB considered the employment relationship terminated. There were no continuing rights to employment held by Mr. Parent or any obligation on the GESB arising out of his employment relationship with it. His rehiring was a matter of choice on the part of the GESB, or at most, part of an obligation under the Workplace Safety and Insurance Act. In the Board’s view, a culpable severance from employment for reasons that constitute a violation of sections 70 and 72(a) of the Act is a discharge for virtually any purpose, and certainly for the purposes of section 1(2).

129. Second, the GESB argues that once the employment relationship is severed, Parent may not be an “employee” for the purposes of section 127.2. Counsel engaged in a lengthy analysis of the Board’s reasons in Don Park Inc. (unreported, Feb.10, 2000, Board File 1837-98-R), particularly at paras. 39 and 40. While we do not read that portion of the Board’s decision in the same way that counsel to the GESB appears to, we see no need to comment on his argument, vigorous though it was. The term “employed” in section 127.2 is subject to section 1(2) of the Act. Since we have found that Parent was discharged contrary to sections 70 and 72(a), we need go no further than that. For the purposes of this application under section 127.2, he was employed by the GESB on the application date, four working days after his discharge. Contrary to counsel’s suggestion, such an analysis does not mean that every painter who was ever laid off by the GESB retains some sort of employment right or relationship forever. Section 1(2) is limited to very specific circumstances, such as the ones before this Board.

130. Further, the GESB argues that the phrase “such employees represented by the trade union” in section 127.2(2) refers to the earlier phrase “employees … employed in the construction industry”. Even if the Board were to deem Parent to have been employed on December 3, 1998, counsel argues that it does not follow that he was employed “in the construction industry” as there is no evidence of what work he did or might have performed on that date. First, it does not lie in the mouth of the party who has violated the Act to argue that its own violation deprives the Board of the evidence necessary to answer an evidentiary question, where the absence of evidence operates to the legal benefit of the party in violation of the Act. More fundamentally, Parent was employed pursuant to the Provincial Collective Agreement. The bargaining unit in that collective agreement covers persons engaged in work in the construction industry. Since the GESB is bound only by virtue of the certificate issued by the Board, that collective agreement cannot extend beyond the boundaries of the construction industry: London Sandblasting and Painting Ltd. [1982] OLRB Rep. Sept. 1322. We have no evidence that Parent ever did anything other than the work that is covered by that collective agreement, i.e. construction work. On the facts of this case, we are not prepared to conclude that Parent was anything other than an employee in the construction industry, albeit employed by the GESB only pursuant to section 1(2) of the Act on December 3, 1998. Accordingly, this application must fail as the applicant does not meet the necessary conditions set out in section 127.2(2).

131. We also note that the meaning to be given to the phrase “employees engaged in the construction industry” is not necessarily as restricted as either party suggested. An examination of the specific tasks performed by an employee on the application date may answer the question of whether or not he or she is employed in the construction industry, but this is not necessarily so. A line between maintenance and construction, as all parties in the industry know, is not an easy one to draw. Maintenance employees are often engaged in tasks which, if viewed in isolation, may be viewed as “construction work”. Similarly, employees engaged under a Provincial Collective Agreement may perform work that comes closer to maintenance than to repair. We note as well that section 126 defines “employee” for the purposes of, inter alia, section 127.2 as including “an employee engaged in whole or in part in off-site work but who is commonly associated in work or bargaining with on-site employees”. That is, such an employee might be employed in the construction industry even though the tasks and work functions performed on one day, viewed in isolation, might not appear to be work in the construction industry.

132. In an application of this sort, this Board is likely to have greater regard to the collective agreement an employee was employed under, the dominant purpose of the work performed in a particular work relationship, whether the work is being performed by persons other than those who normally perform such work and the overall context of the project within which particular work was performed, than to the specific tasks performed on a specific day. In this case, it is clear that Parent was employed to perform construction work under a construction collective agreement. There is no basis for concluding that he was employed otherwise than as “an employee” in the construction industry.

133. The GESB also argued that an employer ought to be able to arrange its affairs in order to time a “decertification application” under section 127.2 in the same way that a union picks the date for a certification application without reference to the views of the employer and to the union’s maximum advantage. Aside from the lack of statutory authority, this analogy is not apt. It is true that in the construction industry, the Board determines a voting constituency based only on persons who were actually at work on the date of application (subject to any relief granted in a section 96 application). A construction union is able to time its application for certification to its maximum advantage. However, the union has absolutely no control over the employer’s operation. It cannot affect the number of employees in its target bargaining unit; it cannot dictate the number of sites on which the employer works; it cannot determine what work will be contracted to third parties. It can only wait until the employer’s natural state of organization reaches the stage (if ever) which is most advantageous to the union. Nor is the employer prohibited from lawfully altering the manner in which it performs work in order to respond to a potential union organizing campaign: see Marsil Mechanical Inc. [1997] OLRB Rep. July 636 at para. 17. A section 127.2 application is essentially a test of whether the employer meets a definition rather than a question of employee wishes. The employer may certainly time the application to its maximum advantage. However it may not, in this panel’s view, distort its natural form of organization, and in so doing violate the Act, in order to bring itself within a definition that it does not otherwise meet.

134. Counsel for the GESB argued strenuously that section 127.2 was introduced into the Act, specifically for the benefit of employers such as the GESB. He asserted that the Board would be ignoring what he called the clear intention of the Legislature in enacting the section if the Board did not grant the application. In enacting section 127.2, the legislature intended, in our view, to provide for two types of employers: those who formerly carried on business in the construction industry and no longer do so, and those who did so only to the extent of falling within the previous definition of a construction industry employer. Such employers are entitled to come to the Board to assert that their businesses or activities have, since becoming bound to the collective agreement, ceased to be involved in the construction industry at all, or to demonstrate that they meet the new definition of a non-construction employer. The task of the Board is to examine the business of the employer and determine whether it meets the definition of a non-construction industry employer and to answer the question of whether there were any employees employed in the construction industry on the application date. If the answer to both questions is affirmative, then the Board is directed to terminate the collective agreement that is no longer applicable to the employer’s business or activities. The legislature did not, in our view, intend to give employers who continue to employ persons under a construction industry collective agreement the opportunity to discharge those employees, apply to terminate the construction industry collective agreement, and then rehire the same employees to do the same work they had done previously under a new and different collective agreement.

Steve Kasaris and Robert Campbell

33. Although it is not strictly necessary to determine this case, since the parties devoted considerable evidence and argument to the issue of the nature of the work performed by the two “maintenance” painters on December 3, 1998, we will deal with that issue also. Steve Kasaris and Robert Campbell are two “permanent” employees of the GESB. Their employment is, and was on December 3, 1998, governed by the Maintenance Collective Agreement. Both were at work on December 3, 1998. Mr. Inverarty attended at the schools and took photographs. The evidence about what was actually done that day is less than precise. Mr. Inverarty attended on two or three days to prepare a report on the work being done on each day and in his testimony initially confused the dates of some of the photographs. Neither employee (quite properly) was told of the significance of the day and therefore neither had a very precise memory of the day. However, this is not, as suggested by counsel for the Painters, a question of some sort of onus on the applicant to demonstrate that every minute of the day was spent doing something other than construction work. Both parties put in issue what these two employees were doing on December 3, 1998. This Board can only examine the evidence and determine on a balance of probabilities what the two employees were doing on December 3. If there is an absence of evidence about what Robert Campbell did between 7-8 p.m., then there is no evidence on which the Board can make any finding of fact.

34. Robert Campbell worked at the Ada C. Richards School, painting exterior doors. Much of this work involved repainting the front and back exterior doors. Although most of the work done on the front doors was done on the days before and after the application date, we find that some of the work on the front doors was performed on December 3, 1998. The front doors are sealed and are functionally just part of the wall. The back doors were used for entrances and exits. Mr. Campbell spent some time preparing the surface of the front doors (peeling, sanding and perhaps priming). He replaced some worn caulking around the back doors and did some painting of these doors which had been damaged by blows from numerous feet and skateboards. There was also some typical schoolyard graffiti, which he covered up.

35. Steve Kasaris worked at J.E. Benson School, mostly in the basement floor. The basement is used for classrooms and other student purposes. The paint in the hallway had cracked and flaked off, portions of the paint were peeled away, and certain areas had suffered water damage. Kasaris spent the day scraping and peeling paint, filling in the water-damaged areas with a plaster filler, sanding the surfaces and preparing them to receive paint. He also painted part of the stairwell with primer. The GESB argued that the work of both persons was maintenance work. Counsel referred to the Board’s first and leading decision on this point, Master Insulators, at paras. 28 & 29:

36. … 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 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)(1) of the Act.

37. 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 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.

He also referred with respect to the specific work of painting to Gallant Painting, [1987] OLRB Rep. March 367, at para. 11:

11. The evidence reveals that, at the time the application was made, the respondent was engaged in painting various platforms, railway cars, buildings, pipes, tanks and other containers, and other structures at the petrochemical complexes operated by Petrosar Limited and Dupont Canada Inc. in Corunna, near Sarnia. Though some of the painting was within or of enclosed structures, the bulk of it was of exterior structures. All of the painting done by the respondent was of existing operating structures that had been painted before. Further, this painting was part of the ongoing plant “maintenance” programs of Petrosar and Dupont. The purpose of the painting was and is to apply a coating that will preserve and protect the structures from corrosion and thereby extend their useful lives. Colours, though selected by Petrosar and Dupont respectively, are dictated by the concern for protection and by legislation. We find that, contrary to the suggestion of the applicant, aesthetics plays little or no role in the painting and only becomes a consideration, if at all, after the primary goal or protection is achieved and the dictates of the legislation are satisfied. We are also satisfied that there is a difference between the techniques and materials used in the relevant painting done by the respondent and the techniques and materials used in new construction painting.

12. Counsel for the Painters took a polar opposite approach. In his submission, the definition of construction industry in section 126 has a different impact on the painter’s trade than it does on any other trade. The construction industry is defined in section 1(1) as “the businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures … “. In his submission, the word “decorating” means that virtually any time new paint is applied, it serves a decorative function and is therefore construction. He distinguished Gallant on the basis that “aesthetics play[ed] little or no role in the painting”. He referred to Courtesy Maintenance, [1990] OLRB Rep. Nov. 1124; Waterloo Regional Roman Catholic School Board (unreported, Dec. 21, 1990, Board File 1373-90-R); Keither Holdsworth Consulting Ltd., [1989] OLRB Rep. June 619, and Delta Catalytic Industrial Services Ltd., [1997] OLRB Rep. Nov./Dec. 979. In his submission, Gallant represents the very rare occasion on which the application of new paint does not constitute repair or construction. While he conceded that the existence of the Maintenance Collective Agreement assumes that there must be some maintenance painting work done in the schools, counsel declined to identify any specific type of work falling within that category.

13. In this panel’s view, Mr. Campbell was performing maintenance work. The work on the front door was simply to preserve the surface of the wood and to ensure that the weather did not destroy it prematurely. The work on the rear doors is only slightly more problematic. The replacement of caulking was urged upon the Board as “repair” of the water/weatherproofing system. In our view, the caulking is a part or “component” of the entire door “system” (to borrow the vocabulary from cases involving mechanical work). The replacement of a component of a system, whether it is caulking around a door or a washer in a tap, is generally maintenance work. Components wear out and need to be replaced as part of regular maintenance. An entire system fails and needs to be repaired or replaced. While the application of the GESB’s standard brown colour had some decorative element (in the best school colour scheme tradition), the primary purpose was to protect the surface of the door from further erosion and weathering. This work was maintenance.

14. The same cannot be said for the work done by Mr. Kasaris. The paint, as a covering for the plaster or drywall surface, had simply come to the end of its life. The paint had cracked, parts of it had fallen off. Water damage had destroyed some of the paint, as well as the underlying surface. The holes needed to be repaired and new coats of primer, base and top-coat needed to be reapplied. The architectural function of the existing paint as a protective sealing system for the ceiling and walls had been exhausted. The repainting amounted to a replacement of the protective coating. In fact, the work on the basement hallways was prompted by what Mr. Inverarty described as a “report” or “notice” under the Occupational Health and Safety Act R.S.O. 1990 ch. O.1 (“OHSA”) filed by a teacher who was the Health and Safety representative for the school. He decided that “the first job was to get the ceilings scraped and get the Health and Safety issue out of [his] hair.” There was one hallway left to be done on December 3, 1998. In this case the work place had deteriorated to the point where it perhaps did not conform to the requirements of OHSA. It required repair to bring it up to, or to resolve any question about whether it conformed to, the standards required by the statute. Repair work is, by definition, work in the construction industry.

15. In addition, the painting served a decorative function since clearly discoloured, cracked and peeling paint is unsightly and, in a basement classroom, depressing. The work had a clearly decorative function. In Country Maintenance, the Board said at paragraph 9:

16. In our view, the primary purpose for the painting in this case was a decorative one. It was not a matter of attempting to sustain or protect the function of the premises being painted. Rather, it was to decorate the premises in order to improve the appearance of the student’s residence and thereby improve the quality of the living space. The colour of paint being used was of little relevance, although we do observe that beige can be used as a decorative colour. And, while the repetitive nature of the painting is a relevant consideration, it is certainly not determinative. It is not unusual for living spaces to be redecorated periodically.

17. In this case, the decorative aspect of the work was more pronounced. Both the decorative and functional nature of the work lead us to the conclusion that this was work in the construction industry.

18. The GESB argued that if the Board found that either of the two employees was performing construction work on the application date, it conceded that it would then not meet the requirements of section 127.2(2) and that the Board would have no choice but to dismiss this application. While the statutory test may not be so narrow, the parties (including the GESB) gave the Board very little evidence about these two employees other than the specific tasks they performed on December 3, 1998. On that basis, since we have found that one of the employees was performing work which falls within the definition of work in the construction industry, on the case as framed by the applicant the application must be dismissed.

19. Accordingly, the application by the GESB under section 127.2 is dismissed. The application filed by the Painters under section 96 is allowed. The Board declares that Kirby Parent was discharged by the GESB contrary to sections 70 and 72(a).

In the event that he has suffered any loss of wages, the GESB is ordered to compensate him. The Board remains seized of this application if the parties are unable to agree on the quantum of damages, if any.

“David A. McKee”

for the Board