A Council of Trade Unions v. Dufferin Construction Company, 2001 CanLII 14941

A Council of Trade Unions v. Dufferin Construction Company

Court File No.: 1788-99-JD Date: April 17, 2001 Ontario Labour Relations Board

Re: A Council of Trade Unions acting as the representative and agent of Teamsters’ Local Union 230 and Universal Workers Union, LIUNA Local 183 and Universal Workers Union, LIUNA Local 183 on its own behalf, Applicants v. Dufferin Construction Company; Carpenters & Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America and Greater Toronto Sewer & Watermain Contractors’ Association, Responding Parties.

Before: Harry Freedman, Vice-Chair, and Board Members J. Knight and G. McMenemy.

Appearances: A. M. Minsky and Mark Lewis for the applicants; Joseph Liberman and Paul Rea for Dufferin Construction Company; D. Wray, Walter Tracogna and Manoj Ravindran for the Carpenters & Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America; Richard J. Charney and Salvatore Morra for the Greater Toronto Sewer & Watermain Contractors’ Association.

DECISION OF THE BOARD

1This is a work assignment dispute under section 99 of the Labour Relations Act, 1995, S. O. 1995, c. 1, as amended (the “Act”) that arose because Dufferin Construction (“Dufferin”) assigned to members of the Universal Workers Union, LIUNA Local 183 (“Local 183”) the carpentry portion of certain concrete forming construction work done at the Lester B. Pearson International Airport (the “Toronto Airport”). The Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners Of America (“Local 27”) claimed that Dufferin should have assigned that carpentry work to its members.

2The Greater Toronto Airports Authority (the “GTAA”) determined that it was necessary to carry out de-icing of aircraft at one principal location at the Toronto Airport and decided to construct the Central De-Icing Facility (the “CDF”) at the Toronto Airport. The GTAA established a tendering process for the CDF project which included the construction of underground diversion vaults and holding tanks designed to hold and permit a controlled release into the sewer system of the ethylene glycol fluid compounds (“Glycol”) applied to aircraft prior to their take off, the foundation and above ground base on which storage tanks for the fresh Glycol (to be applied to departing aircraft) were installed and as well the CDF Operations and Control Building. Dufferin was the successful bidder for the entire CDF project. It carried out the construction of the underground vaults, holding tanks and the foundation and above ground base for the fresh Glycol tanks. Dufferin subcontracted the construction of the Operations and Control Building to Dineen Construction.

3The CDF Operations and Control building was a discrete “sub-project” within the overall CDF project at the Toronto Airport. The GTAA developed separate drawings and specifications for the CDF Operations and Control Building. Dineen Construction quite properly treated the construction of the CDF Operations and Control Building as coming within the industrial, commercial and institutional sector of the construction industry. It applied the ICI collective agreements by which it was bound, including the provincial agreement by which Local 27 was bound, in carrying out that work. As a result, members of Local 27 were assigned by Dineen to carry out the carpentry portion of the concrete forming construction work with respect to the CDF Operations and Control Building, and no issue has been raised about that assignment of work by Dineen.

4Dufferin, which acknowledges that it is bound by a collective agreement with Local 183 in respect of at least the sewers and watermains sector of the construction industry but does not admit it is bound by a collective agreement with Local 27 in the ICI sector, assigned the carpentry portion of the concrete forming construction of the underground vaults, holding tanks and the foundation and above ground base for the fresh Glycol tanks (the “Work in Dispute”) to members of Local 183. Local 27 filed a grievance against Dufferin with respect to members of Local 183 performing the Work in Dispute. As a result of that grievance, Dufferin, Local 183 and Local 27 entered into a memorandum of agreement by which they agreed to the adjournment of the grievance sine die pending the disposition of this application, a timetable for the filing of material in respect of this application and agreed:

As a result of the grievance in this matter filed by Local 27, a question has arisen as to whether or not the work in dispute falls within the ICI sector of the construction industry (“the ICI sector”) and the parties therefore request that the Board make such sector determination at the outset of its consultation with respect to the jurisdictional dispute application.

Based on the parties’ agreement, the Board proceeded to deal with the sector issue before receiving any materials or submissions with respect to any other issue raised in this application.

5The Board is satisfied that the resolution of the sector issue in this proceeding may well be determinative of the result of this application as Local 27 acknowledges that it does not have bargaining rights in respect of Dufferin outside of the ICI sector. While the absence of bargaining rights is not fatal to a union claiming that its members ought to be assigned work (see Ilena Construction Company, [1974] OLRB Rep. Nov. 775 at paragraph 20, application for reconsideration dismissed, unreported, Board File No. 3902-73-JD, decision dated February 13, 1975; J. R. Seguin et Fils Limited, unreported, Board File No. 0718-76-JD, decision dated June, 1977; Brunswick Drywall Inc., [1982] OLRB Rep. Aug. 1143; Pigott Construction Limited [1992] OLRB Rep. June 748; and Steel City Millwork, [2000] OLRB Rep. Nov./Dec. 1224) that is a significant factor. Local 183 in its brief submits that because Local 27 does not have bargaining rights for Dufferin outside of the ICI sector while Local 183, either on its own or as a member of the council comprised of Local 183 and Teamsters’ Local Union 230 holds bargaining rights for Dufferin outside of the ICI sector, Local 27 “has no proper claim to dispute the assignment of the work in dispute to members of Local 183”. Local 27 suggests that if the Work in Dispute comes within the ICI sector, an existing agreement between Local 27 and Local 183 would establish that the Work in Dispute should have been assigned to members of Local 27. Both Local 27 and Local 183, although not conceding that they do not have the right to claim the Work in Dispute should it fall outside of the sector in which they hold bargaining rights for Dufferin, both appear to agree that the sector into which the Work in Dispute comes will likely result in the parties resolving their dispute in this proceeding.

6At the outset of the hearing of this matter, it was clear that the parties had framed the issue before us as whether the Work in Dispute came within the ICI sector or the sewers and watermains sector of the construction industry. It was also clear that the parties viewed the Work in Dispute as relating almost entirely to the construction of the underground vaults and storage tanks. The foundation and base for the above ground fresh Glycol tanks was a very minor element of the CDF project. Thus, the Board will determine the sector issue by principally focussing on the underground vaults and storage tanks aspect of the project, bearing in mind that the foundation and base for the above ground fresh glycol tanks was nevertheless a part of that project. In that regard, we note that the Operations and Control Building was also a part of the CDF project and that part of the project was dealt with as a discrete “sub-project”.

7Section 125(1) defines the term sector in the following way:

“sector” means a division of the construction industry as determined by work characteristics and includes the industrial, commercial and institutional sector, the residential sector, the sewers and watermains sector, the roads sector, the heavy engineering sector, the pipeline sector and the electrical power systems sector;

The Act divides the construction industry into sectors based on “work characteristics”. The seminal decision discussing the Board’s approach to determining into which construction industry sector a project falls is The Heavy Construction Association of Toronto, [1973] OLRB Rep. May 245. The Board in that decision reviewed the precise definition of sector found in what is now section 125(1) of the Act and wrote at page 249:

An examination of the enumerated sectors in clause (e) of section 106 [now 125] leads to the conclusion that for all but one of the sectors listed the names given to these divisions of the construction industry relate to the use which is ultimately made of the construction…. Thus, each of the sectors enumerated, by focusing on the different end uses of the construction, distinguishes one type of construction from other types of construction on the basis of the peculiar tasks which are common to that type of project.

The emphasis on the “end use” of the project for determining the construction industry sector was explained at page 250 of The Heavy Construction Association of Toronto:

…section 106(e) [now 125] should not be interpreted in a way to allow such an ambiguity or uncertainty as to the meaning of the term “sector”. The problem, however, is not difficult to overcome. As pointed out earlier, the other sectors are defined in terms of the use ultimately made of the construction. This has the clear advantage of determining the sector at the earliest stages of the project. Thus any uncertainty as to whether the project falls in one sector or another can be removed even before work has commenced at the job site. The removal of such an uncertainty is, of course, as desirable goal in labour relations and indeed the Legislature in its wisdom has seen fit to remove the uncertainty from the definition by labelling the other sectors with names designating the end use of the project.

That approach has been adopted by the Board when it has had to determine a “sector” issue in many cases including Ecodyne Limited, [1979] OLRB Rep. July 629 at 634-35; Steen Contractors Limited, [1989] OLRB Rep. Nov. 1173 at 1176-77; Matthews Contracting Inc., [1993] OLRB Rep. Dec. 1332 at 1338 (application for judicial review dismissed, [1995] OLRB Rep. March 391); Duntri Construction Ltd., [1996] OLRB Rep. 399 at 400; H. Kerr Construction Ltd., [1999] OLRB Rep. March/April 196 at 198-99; H. Kerr Construction Ltd. (No. 2), [1999] OLRB Rep. July/Aug. 609 at 611-12, (application for judicial review dismissed [2000] OLRB Rep. Sept./Oct. 1078); Modern Mechanical Contracting Ltd., [1999] OLRB Rep. July/Aug. 655 at 660-61; Eastern Construction Limited, unreported, Board File No. 1796-99-JD, decision dated October 20, 2000.

8In Armbro Materials and Construction Limited, [1987] OLRB Rep. July 948 the Board was dealing with a jurisdictional dispute over the installation of site services for a car manufacturing plant under construction. The Board determined that the sector issue should be dealt with before determining the merits of the work assignment dispute and at page 952 approached the sector determination by requiring the parties to lead evidence with respect to the work characteristics of the work in dispute. It is clear that the Board in Armbro Materials and Construction Limited, supra was approaching the sector issue by reviewing the work characteristics of the work in dispute without first examining the end use of the construction to consider whether that factor might be determinative of the sector issue. In Dufferin Construction Company, unreported, Board File Nos. 1067-88-G; 1068-88-G and 1465-88-JD, decision dated August 31, 1992, the Board at page 23-25 noted that underlying any sector determination were “work characteristics” and that although the construction in issue in that case (the departure level bridge at Terminal 3 at the Toronto Airport) was functionally, structurally and architecturally integrated with the terminal building, hotel and parking garage (building construction that was clearly within the ICI sector), functional, structural and architectural integration were not work characteristics. Furthermore, the Board also found that such integration did not affect the “work characteristics” of constructing that bridge. The Board wrote at page 25:

In the Board’s view, therefore, even if the departures level bridge is integrated with the three other structures in the manner argued, that fact would not be useful in deciding whether its construction was work in the ICI sector, and therefore not in the heavy engineering sector, or vice versa.

The Board then went on to examine the work characteristics of the construction of the departures level bridge because a sector determination could not be made on the basis of its end use.

9In our opinion, the Board did not in either Armbro Materials and Construction Limited, supra or Dufferin Construction Company, supra, diminish the importance of the end use of the construction in issue as a factor in making a sector determination. In Armbro Materials and Construction Limited, supra the Board was determining whether it would receive evidence concerning area practice. It held that although relations with employees was a work characteristic and therefore area practice may be relevant to the sector determination, how different trades in a Board Area resolve sector disputes in that area was not relevant to the Board. In Dufferin Construction Company, supra, the Board recognized that work in the heavy engineering sector, unlike the other sectors enumerated in the definition of sector in section 125 of the Act, is not distinguishable by the end use of the construction. The Board did not in that case address whether the end use of the construction would be decisive. In H. Kerr Construction Ltd., supra the Board acknowledged the uniqueness of the heavy engineering sector when it said at page 198:

…the end-use of the construction work in issue will be determinative of the sector into which the work falls, except in the heavy engineering sector.

and again in H. Kerr Construction Ltd. (No. 2), supra where the Board wrote at page 612:

The Board has consistently held that except in the heavy engineering sector, a consideration of end use is the first, and potentially, the only consideration in a sector determination. Put simply, the first question for the Board is what is the product of the construction?

See also Modern Mechanical Contracting Ltd., supra at page 660 where the Board stated:

…the use that will ultimately be made of the construction will to a large extent determine the sector into which it falls. Thus, where an end-use analysis is determinative of the sector, the Board would not have to inquire any further. Where the end-use analysis is not determinative, the Board must inquire into the work characteristics which may distinguish one sector from the others.

10Where, as here, the issue is whether the work in dispute is either in the ICI sector or in the sewers and watermains sector, we adopt the analysis of that issue applied by the Board in Duntri Construction Ltd., supra at page 400 where the Board wrote:

In a sector determination where the issue is whether particular work falls within the ICI sector or the sewer and watermain sector, the primary focus is the end use of the construction work in issue. Where an end-use analysis is determinative of the sector, it is unnecessary to inquire further. Where an end-use analysis is not determinative, it is necessary to inquire further and examine “work characteristics” to determine into which of the seven sectors of the construction industry the work in issue falls.

Therefore, we have to examine the end use of the construction work to determine whether the principal purpose of the product of the construction is carrying out an industrial process or engaging in commercial activity on the one hand or transporting or holding water or effluent without changing its composition on the other. If it were the former purpose, then the concrete forming construction would come within the ICI sector, but if it were the latter then such work would come within the sewers and watermains sector.

11The end use analysis, although particularly appropriate for assessing discrete types of construction projects, may be difficult to apply where the project is, for example, a mixed use commercial/residential building. In West York Construction Ltd., [1983] OLRB Rep. Dec. 2132 the Board was required to determine whether the construction of a 19 level mixed use building in which the lower levels were commercial and the upper ones were residential and a second three level building with apartments on only the upper level was work within the ICI sector or residential sector. While the purpose of the work on each level was ascertainable the Board was not prepared to subdivide an integrated project into different sectors. The Board wrote at page 2141:

Before considering which sector the two projects in question actually came within, we would note that no party argued in favour of treating one part of the projects as residential and another part as ICI. Indeed, it appeared to be accepted that such an approach would not be feasible. In this regard, various witnesses referred to problems that would arise in bidding a job and then subletting the work if part was viewed as residential and part as ICI. There would also be difficulties in deciding how to characterize the initial excavation work and installation of underground services.

The Board in Steen Contractors Limited, supra considered whether a “single” construction project may fall within more than one sector. In the case before us, the CDF project included the Operations and Control Building which had been treated by the parties as a discrete segment of the CDF project. The Work in Dispute, however, was comprised of concrete forming construction for two distinct types of structures; underground vaults and holding tanks on the one hand and the foundation and above ground base for fresh Glycol storage tanks on the other. Separating portions of a construction project for different purposes or treating portions of a construction project as falling into different sectors is not at all unusual. The Board in Steen Contractors Limited commented on this possibility at page 1178:

Construction projects may be large or small, may carry on for only days or weeks or may extend over many months or years. Construction projects will have different phases, calling for different kinds of work to be done. In our view, all of the work done on a particular construction project, however that term is defined, need not necessarily come within the same sector of the construction industry….

Where construction work for a particular project is closely integrated, as would be the case in the construction of a building, then all of the work of that project would fall within the same sector. Where however the work to be done is distinct, the responsibility for it is clearly severable and where such work appears to patently fall within one of the enumerated sectors of the construction industry, there is not any compelling reason to distort the concept of sector in order to find that all of the work on a project falls within the same sector.

That approach was recently adopted by the Board in Eastern Construction Limited, supra at page 4.

12The parties focussed their attention on the construction of the underground vaults and holding tanks as that portion comprised nearly all of the Work in Dispute. The underground vaults and storage tanks were designed to capture, hold and permit the controlled release into the Toronto Airport sewer system of spent Glycol after it is applied to departing aircraft when there is a risk of ice forming on the aircraft. Christopher Stewart, the project manager for the GTAA testified that Glycol is applied to aircraft beginning in October. He explained that Glycol contamination of the ground where the de-icing takes place and the adjacent areas may remain until early June. John J. Dejak, an associate of Marshall Macklin Monaghan Consulting Engineers, and that firm’s Project Manager for the CDF project at the Toronto Airport explained that between 75% and 90% of the Glycol applied to aircraft lands on the de-icing pads and adjacent areas as a result of the spraying of the fluid onto the aircraft surfaces and wind drift. The effluent (a mixture of Glycol and water) from the de-icing pad areas and the “pink snow” stockpile area adjacent to the CDF Operations and Control Building flows into the underground vaults and storage tanks. (“Pink snow” is snow, slush or ice removed from the de-icing pads that is contaminated with spent Glycol.) There are a number of collection systems designed to capture the spent Glycol, including Glycol recovery vehicles that vacuum the de-icing pads and dump the spent Glycol into a catchbasin; surface drains and catchbasins at the de-icing pads to capture surface effluent and underground interconnected perforated pipes installed directly above a high density polyethylene liner to capture effluent that has infiltrated underground from the surface. The drains are connected to the catchbasins and the catchbasins and perforated pipes are connected to the underground diversion vaults and holding tanks by a conventional storm sewer system.

13The principal difference between the parties was whether the underground vaults and storage tanks processed the spent Glycol or, to put it another way, whether the Glycol is treated before it is released into the Toronto Airport sewer system. Mr. Dejak provided a comprehensive review of the Glycol recovery and disposal process put in place at the Toronto Airport. (The GTAA retained Marshall Macklin Monaghan Consulting Engineers to undertake preliminary design, detailed design and related services in relation to the CDF project.)

14Glycol is a toxic substance that is biodegradable and can reduce oxygen levels available for aquatic animals and plants. It has an estimated biochemical oxygen demand (BOD) of 400,000 mg of oxygen per litre of pure ethylene glycol. (The Glycol applied to aircraft is an ethylene glycol and water suspension with either approximately 55% or 63% concentration, depending upon whether it is being used for anti-icing or de-icing.) Its release into local waterways is subject to environmental guidelines that prohibit the discharge of fluids with an ethylene glycol concentration greater than 100mg/L (or 0.01% concentration) as sampled every 24 hours. Both Messrs. Dejak and Stewart explained that an ethylene glycol and water mixture that cannot be discharged into a waterway may be discharged into the sanitary sewer system, depending upon whether the BOD daily load limits established by agreement with the Region of Peel have been reached. (According to Mr. Stewart, the agreement between the GTAA and the Region of Peel permits a daily discharge of 7000 kg BOD into the sanitary sewer system. The actual amount or volume of fluid that may be released depends upon the concentration of ethylene glycol in the mixture.) Mr. Stewart provided the following examples:

a) At 1% concentration, approximately 700,000 kg. of fluid or 700,000 litres can be discharged daily into the sanitary sewer under the agreement;

b) At 50% concentration, approximately 1400 kg. of fluid or 1400 litres can be discharged daily into the sanitary sewer under the agreement

Mr. Stewart also testified that effluent with an ethylene glycol concentration of less than 300 mg/L or 0.03% can be discharged into the sanitary sewer system on an unlimited basis and that effluent with an ethylene glycol concentration less than 100 mg/L or 0.01% can be discharged into the storm sewer system on an unlimited basis. The ethylene glycol concentration of the normal rainfall runoff from the de-icing pads was approximately 1.5%. The GTAA must therefore ensure that the Glycol remaining on the ground after aircraft are sprayed is collected and not discharged into the environment except under controlled conditions.

15The Glycol collection system of underground vaults and tanks is designed to maximize the amount of effluent that can be discharged into the storm sewer system first (effluent with an ethylene glycol concentration of less than 100 mg/L or 0.01%), then next into the sanitary sewer system without limit (effluent with an ethylene glycol concentration of more than 100 mg/L or 0.01% and less than 300mg/L or 0.03%), and finally into the sanitary sewer system on a measured basis of not more than 7000 kg BOD per day where the effluent has an ethylene glycol concentration greater than 300mg/L or 0.03%. The system also permits effluent with a particularly high concentration of ethylene glycol (greater than 20%) to be pumped into tanker trucks and shipped off site for disposal. The costs of trucking effluent from the Toronto Airport are significantly higher than the costs of discharging it into the sanitary sewer system. There are no fees associated with drainage into the storm sewer system while there are fees and surcharges for effluent discharged into the sanitary sewer system. The sanitary sewage flows from the Toronto Airport to a water treatment facility on Lake Ontario approximately 13 kilometres away.

16There are three large holding tanks (one of which had been constructed in 1996 as part of the Satellite De-Icing Facility) at the CDF. The construction of Tank No. 1 in 1996 was carried out by Toronto Zenith Contracting Limited under a subcontract from Dufferin pursuant to the collective agreement between Local 183 and the Heavy Construction Association of Toronto. The carpentry portion of the concrete forming construction of Tank Nos. 2 & 3 was part of the Work in Dispute. Tanks 2 & 3 contain three cells; one cell for holding up to 4,000,000 litres of low concentration effluent (less than 20% ethylene glycol), a second cell for holding up to 1,000,000 litres of high concentration effluent and a third cell for pumps and valves. Tank Nos. 2 & 3 are connected to each other to allow the operator to move effluent between the tanks, since one tank may fill more quickly than another as some de-icing pads are used much more frequently than others. Each holding tank contains a mixer to maintain a constant concentration of the liquid in the tank. (In the absence of agitation, the effluent would stratify as Glycol has a higher density than water and other compounds suspended in the effluent would have a tendency to settle out.) The effluent can be released from only the low concentration chamber of a holding tank into the sanitary sewer (or storm sewer if the concentration is low enough). Effluent held in the high concentration chamber of a holding tank can either flow into the low concentration chamber or be pumped out of the chamber and into a tank truck for disposal.

17In addition to the holding tanks, there are seventeen diversion vaults. The carpentry portion of the concrete forming construction of those diversion vaults was also a part of the Work in Dispute. Each of the diversion vaults includes a pump to send effluent samples to the Operations and Control Building for analysis to measure the ethylene glycol concentration. Depending on the level of concentration, effluent in the diversion vaults can be directed into the storm sewer or to either the low concentration chamber or high concentration chamber of the holding tank connected to that particular diversion vault. Unlike the holding tanks, there are no mixers in the diversion vaults. There is a grit sump in each vault to allow for the collection of grit or debris carried by the effluent that settles out of the mixture while it is in the vault. A grit sump is a common feature of storm sewer catchbasins and manholes to prevent grit from entering the storm sewer system or debris from blocking sewer pipes.

18Rain water falling in the vicinity of or on the de-icing pads does not flow directly into the storm sewer system. Rather, it flows through the sewer grates, catchbasins and pipes into the diversion vaults where it is assessed to determine the level of Glycol concentration. During the late spring, summer and early fall when Glycol is not being applied to aircraft, the rainwater flows from the diversion vaults into the storm sewer system. Sampling of the rain water is carried out for some two months after Glycol application has ceased as a result of the Glycol residues that can remain on the ground.

19Fresh water is not added to the holding tanks to dilute the effluent. Mr. Stewart explained that it is the mass (or number of kilograms) of Glycol suspended in the effluent that determines how much effluent can be discharged into the sanitary sewer, not the volume of effluent. He testified that adding water to the effluent would not affect the mass of Glycol in it. We understood Mr. Stewart’s evidence to mean that although adding water to the effluent would reduce the level of Glycol concentration, given the levels of concentration (in the range of 20% or more when Glycol is being applied to aircraft on a regular basis) it would not be feasible to add the volume of water necessary to reduce the Glycol concentration level from 20% to below 0.03%. The Glycol concentration of the effluent in the tanks may change due to more effluent flowing into the tanks rather than as a result of filtering, heating or cooling it or adding chemicals or other substances to it. The witnesses maintained and the material filed with the Board conclusively established that the effluent is not treated or otherwise processed so as to change its composition before it is discharged into the storm or sanitary sewer systems. Rather, the holding tanks and diversion vaults are components of a Glycol recovery system that manages the flow of effluent into the Toronto Airport sewers through a network of pipes, pumps and valves.

20Counsel for Local 27 did not take issue with the applicable principles used by the Board in determining the sector into which the Work in Dispute falls. Rather, he submitted that the Glycol recovery system was designed to protect the environment from having unacceptable levels of Glycol go untreated into the sewer systems. Compliance with environmental regulations was an operational responsibility of the GTAA. The Glycol recovery system was therefore one element of the Toronto Airport’s operations. He acknowledged that the catchbasins and manholes connected directly to sewer pipe were properly considered appurtenances of the sewers installed at the Toronto Airport. He referred to the description of the bargaining unit of employers in the sewers and watermains sector used by the Board in Metropolitan Toronto Sewer and Watermain Contractors Association, [1986] OLRB Rep. Oct.1362 at 1363-64:

…employers of employees…who are performing the following work:

The installation of main and/or lateral sewers and their appurtenances for the collection and transportation of sewage and storm water and main and/or lateral watermains and their appurtenances for the supply of water, whether installed in conjunction with any other works or services, along public roads, easements or allowances or within private property lines up to three feet of any building or structure, regardless of the ultimate use of the private property.

Counsel argued that the two large tanks, each with a capacity of 5,000,000 litres of fluid could hardly be characterized as an “appurtenance” of a sewer pipe. It was a structure designed to be an integral part of the Toronto Airport’s operations which include environmental compliance.

21Counsel also submitted that the construction of the tanks and the diversion vaults was akin to a sewage treatment plant that is, according to counsel, clearly within the ICI sector. We were referred to Sutherland-Schultz Limited, [1988] OLRB Rep. June 632 in which the Board observed that the concrete forming construction that was being undertaken at an expansion of the Waterloo Sewage Treatment Plant was work that was within the ICI sector. The issue in that case was whether the carpenters’ union, engaged in a lawful province wide strike in respect of the ICI sector, was lawfully picketing that project. The Board held that the picketing was in connection with a lawful strike and thereby must have concluded that the work in question was within the ICI sector. We note that the Board in that case said at page 632:

There is no real dispute between the parties with respect to the facts relevant to this application. The applicant is a general contractor on an industrial, commercial and institutional (“ICI”) sector construction project at the Waterloo Sewage Treatment Plant.

Counsel also relied on Matthews Contracting Inc., supra to submit that the construction of the tanks and diversion vaults came within the ICI sector in which the Board stated at page 1338:

In our view, the end use of the tank falls within the ICI. It is part of a process of sewage treatment and water pollution control. To the extent that industrial projects are about the processing or transformation of raw materials, this tank is one element or stage in the processing of sewage overflow and storm water overflow into clean water. If this tank were located directly in a processing facility, we would have no trouble considering it as part of the process. The fact that it is physically separate from the processing plant does not change its nature, in our view, since it was clearly built as an extension to the system of water and sewage treatment.

In Matthews Contracting Inc., supra the Board noted that the tank also performed a “settling function” allowing the cleaner water at the top of the tank to flow out into the lake if the sewage treatment plant did not have the capacity to process all of the water in the holding tank before it went into the lake. Prior to the construction of the tank, storm water and sewage that overflowed because the sewage treatment plant had reached its capacity went directly into the lake.

22Local 27 submits in essence that the management of fluid flowing into and out of the diversion vaults is designed to ensure that Glycol contaminated effluent will not flow untreated into the environment. The function is identical to the function of the tank, the construction of which was considered by the Board to come within the ICI sector in Matthews Contracting Inc., supra. The tanks and vaults are, in Local 27’s submission, simply a part of a larger system of sewage processing and treatment that is squarely within the ICI sector.

23The Board in Duntri Construction Ltd., supra determined that a stand alone sewage pumping station came within the sewers and watermains sector and not the ICI sector of the construction industry. The Board distinguished the decision in Matthews Contracting Inc., supra by noting that the sewage pumping station did not process the material in any way; rather it merely pushed the sewage along on its way to its destination at a sewage treatment plant. The Board, at page 404 of Duntri Construction Ltd., supra wrote:

Sewage which enters the pumping station is not processed or even held for settling purposes at the pumping station. It is simply moved along and is no more an adjunct of the treatment process than the sewer pipes which carry the sewage.

The description of the function or “end use” of the pumping station is also, we believe, an apt description of the function of the tanks and vaults in issue before us. The Board in Duntri Construction Ltd., supra referred to the settling function of the tank in the Matthews Contracting Inc. decision as an element of the processing of sewage by a sewage treatment plant. Whether the passive settling of liquid suspensions is the processing of that liquid is not a matter upon which we need to comment in this decision. The Board in Duntri Construction Ltd., supra provided an analysis of the difference between a pumping station and a storage tank designed to permit settling of the material stored at page 404:

Sewage treatment plants, lagoons and even the water storage tank in Matthews Contracting all affect the material stored or treated and in this way can be said to be part of the “processing” of the material. Thus for example, lagoons and the underground water storage tank improve the quality of material held through a “settling” function. The Brookfield Pumping Station does none of these things. It simply assists in the carriage or transport of sewage from point of origin to point of destination at a time when gravity and topography render it inefficient or impossible for the sewage to continue flowing through sewage pipes. Indeed, the pumping station’s function is quite the opposite to settling. Rather than permitting the sewage to settle, its function is to continue to move it along the sewage lines to the treatment or processing facility. The functions of settling, disinfecting, aeration etc. which one would normally associate with the processing of raw sewage do not take place at the Brookfield Pumping Station and are not affected by that station. The sewage which entered the pumping station untreated, leaves the pumping station, in the same untreated form.

In our view, that is precisely what happens with the effluent that enters the diversion vaults and tanks. It leaves the tanks in the same form in which it entered. Indeed, to ensure that there is no change to the composition of the effluent, the tanks have mixers to agitate the effluent to ensure that settling does not take place.

24Counsel for Local 27 had suggested that the tanks and diversion vaults could hardly be considered appurtenances to the sewer pipes to which they were connected and therefore were outside of the sewers and watermains sector. An appurtenance to something does connote a relatively small appendage to something much larger. Appurtenance is defined by the Encarta World English Dictionary as “accessory, an accompanying part or feature of something” and by the Concise Oxford Dictionary as “belonging; appendage; accessory”. Words and Phrases Legal Maxims, Canada provides the following explanation for the adjective appurtenant: “The adjective ‘appurtenant’ means ‘belonging to, annexed to or appended to’. It does not necessarily connote that the property owner enjoys ‘actual use, enjoyment [or] benefit’ of the property.” and “In its normal legal sense, the word ‘appurtenant’ would mean ‘connected with the use and enjoyment of the dwelling-house”. Black’s Law Dictionary provides the following definition of the word “appurtenance”:

That which belongs to something else; an adjunct; an appendage; something annexed to another thing more worthy as principal, and which passes as incident to it, as a right of way or other easement to land; an outhouse, barn, garden, or orchard to a house….An article adapted to the use of the property to which it is connected, and which was intended to be a permanent accession to the freehold.

While counsel for Local 27 is justified in suggesting that it is difficult to conceive of a 5,000,000 litre tank being an appurtenance to some sewer pipe (even large diameter sewer pipe) it seems to us that the term appurtenance used by the Board in the Metropolitan Toronto Sewer and Watermain Contractors Association, supra decision was meant to apply to something directly connected to a sewer or watermain in both a physical and a functional dimension. Clearly, catchbasins, sewer grates and manholes are directly connected to sewers and are integral to the function of the sewer and are therefore “appurtenances” of a sewer line because they are “something directly connected” to it. The Board has concluded that a pumping station comes within that category of something (Duntri Construction Ltd., supra) but a holding tank that does more than merely hold sewage and storm water by carrying out a “treating” or “processing” function through settling falls outside of that category of something (Matthews Contracting Inc., supra). A storage tank that also has a treatment or processing use is more closely connected in a functional sense to a water or sewage treatment or processing facility which the Board views as coming within the ICI sector. In Duntri Construction Ltd., supra the Board made the following observation at pages 404-05:

In Matthews Contracting Inc., supra the Board referred to work which may exist at the “juncture of two sectors”. In our view, that is the difficulty with the case of this pumping station which is physically separate form the treatment or processing facility and yet which is not something which one would readily or easily identify as a sewage (as opposed to a sewage treatment) system. On balance, however, we have concluded that, although close to the dividing line between a “processing” facility (which would normally be considered to be in the ICI sector), and work such as sewer “line” work (which is typically considered in the sewer and watermain sectors [sic]), ultimately the end use of this pumping station falls within the sewer and watermain sector.

In our view, a storage tank that holds effluent in connection with a Glycol recovery system without permitting settling and to which nothing is added to change the nature or composition of the effluent, while “close to the dividing line” is directly connected to the sewer system both physically and functionally. The tank does nothing more than hold the effluent in the same state until it can be either discharged into the sewer or pumped into a truck for disposal elsewhere. It functions, in that respect, as an appendage or appurtenance to the Toronto Airport sewer system. The end use of the tank is to hold and release effluent without affecting its composition or characteristics, in much the same way that a sewer pipe conveys effluent without affecting its composition or characteristics and a sewage pumping station pushes effluent to its destination without affecting its composition or characteristics.

25In Dufferin Construction Company, [1998] OLRB Rep. July/August 609 the Board determined that the construction of a glycol storage tank was in the sewers and watermains sector. In that case, the tank was used to hold glycol that had been sprayed onto aircraft and was either sucked up by a vacuum truck or entered into the sewer system and flowed to a sampling chamber. Depending on the concentration of glycol, it was either pumped into the tanks for storage and recycling or into the sewer system or holding pond for later discharge into the sewer system. The recycling of the glycol held in the storage tank was done off site. The glycol had to be removed from the storage tank and transported to a processing facility by truck. The Board at page 611 noted:

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 watermain sector and not the ICI sector of the construction industry.

26Thus, we are satisfied that the construction of the tanks and the diversion vaults (which do not even hold the effluent for a period of time, but merely direct it to either a storm sewer or holding tank) at the Toronto Airport as part of the Glycol recovery system is work that comes within the sewers and watermains sector of the construction industry.

27Counsel for Local 183, counsel for Dufferin and counsel for The Greater Toronto Sewer & Watermain Contractors’ Association submitted that the construction of the foundation and above ground base for the fresh Glycol storage tanks was part of the CDF project that was not part of the Operations and Control Building subproject that had been subcontracted to Dineen Construction and therefore should fall into the same sector as the sector in which the construction of the tanks and vaults comes. Alternatively, they argue that the Board should not determine the sector into which that particular work falls because it is such a small amount of the overall work that is in issue in this proceeding. Counsel for Local 27 submitted that all of the Work in Dispute was in the ICI sector and that the carpentry portion of the concrete forming construction of the foundation and above ground platform for the fresh Glycol storage tanks is before the Board for determination.

28The Board earlier referred to the difficulty in segregating portions of a single project into different sectors. In Steen Contractors Limited, supra the Board wrote at page 1178:

Where however the work to be done is distinct, the responsibility for it is clearly severable and where such work appears to patently fall within one of the enumerated sectors of the construction industry, there is not any compelling reason to distort the concept of sector in order to find that all of the work on a project falls within the same sector.

The Board in Matthews Contracting Inc., supra commented on the demarcation between sectors when the same general contractor is responsible for the work in issue at page 1338-39:

It is true that the tank is located at the juncture of two “systems”, the sewer system and the sewage treatment system. It was urged on the Board that because the contract by Matthews included the installation of sewer lines which all parties accepted as part of the sewer and watermain sector, it was not logical to view the construction of the tank as being in a different sector. To the extent that Matthews performed all of the work itself, using an interchangeable work force, the responsibility for all aspects of the job has been integrated, regardless of sector lines.

Although at first blush, there is some logic to this position, we are not ultimately persuaded by it. First, this position gives undue weight to the manner in which this particular contractor viewed the project. It also gives undue weight to the particular collective bargaining relationship between Matthews and the Labourers on this site. As was clear from the evidence, these parties have never had to draw strict demarcation lines between sectors in respect to formwork, since Matthews has until recently only employed Labourers for this work, and has been bound to agreements with the Labourers covering forming in a number of different sectors. Although there are obvious advantages to such an approach for these two parties, it does not assist the Board to determine a sector issue once it has been raised, as it was here, by the introduction of another collective bargaining relationship which relies on a sector determination.

In the instant case, the foundation and above ground base were installed to support the storage tanks holding the fresh Glycol (in two different concentrations depending on whether it is to be applied to aircraft for anti-icing or de-icing) that is delivered by truck to the Toronto Airport. The fresh Glycol flows out of those storage tanks through underground pipes to the de-icing pads where it is pumped into tanker trucks for application to the aircraft. The fresh Glycol tanks are not connected to the sewer system in any way; the end use of the tanks is the storage of fresh Glycol for application to aircraft.

29In our opinion, the application of fresh Glycol to aircraft is part of the industrial or commercial activity taking place at the Toronto Airport; at the very least, it has no end use that could even be remotely described as relating to the disposal, carriage or storage of effluent. The end use of the construction of the foundations and bases on which the fresh Glycol tanks were placed is clearly related to aircraft leaving the Toronto Airport. There can be no doubt that the operation of aircraft carrying passengers and freight is a commercial activity; similarly, there is no doubt in our minds that the application of fresh Glycol to those aircraft so that they can safely depart from the Toronto Airport is a part of that commercial activity and might well be considered commercial activity on its own. If we were concerned only with the construction of the foundation and base for those tanks as a discrete project, we would conclude without hesitation that such construction work comes within the industrial, commercial and institutional sector of the construction industry. Thus, the issue for us is whether that is still the case in the circumstances before us because Dufferin treated that portion of the CDF project as a part of the underground tank and vault work, or to put it more accurately, as not a part of the CDF Operation and Control Building subproject.

30In our view, the general contractor’s choice (or the owner’s or engineer’s choice) of how it will carry out the work cannot be determinative of the sector issue. We agree with the Board’s comments in Matthews Contracting Inc., supra that to do so would give “undue weight to the manner in which this particular contractor viewed the project. It also gives undue weight to the particular collective bargaining relationship between Matthews and the Labourers on this site.” Ultimately, if the parties affected cannot reach a resolution of the sector issue, the matter falls to the Board to determine as a question of law. As the Board noted in Steen Contractors Limited, supra unless there are factors which require the Board to treat an entire project as coming within the one sector of the construction industry, the Board should not “distort the concept of sector in order to find that all of the work on a project falls within the same sector.”

31In the case before us, the CDF project was considered to come within different sectors of the construction industry with the Operation and Control Building done by Dineen Construction as a distinct subproject coming within the ICI sector and according to the material filed by the applicants, the paving of the de-icing pads coming within the roads sector. There was no suggestion made to the Board that the work associated with the foundation and base of the storage tanks could not have been included in the Dineen Construction project as a part of the Operation and Control Building work, other than that portion of the forming work was “minuscule” in comparison to the other forming work being done at the project. Counsel for Dufferin submitted that the GTAA and the consulting engineers responsible for the CDF project determined that the Operations and Control Building, according to Mr. Dejak, “would be presented as a stand-alone sub-project, with its own set of construction drawings and specifications.” Mr. Dejak at page 3-1 of his report filed with the Board as part of the pre-hearing process explained the reasons for segregating the Operations and Control Building from the rest of the project:

The CDF Operations and Control Building work was segregated as a sub-project within the overall construction package in recognition of the nature of the work, the type of trades that would be involved and to minimize interface and co-ordination issues. It was felt that by having separate construction drawings and specifications for the building subproject, a prospective proponent could more easily obtain a quotation from an ICI contractor. In the view of the GTAA and MMM [the consulting engineers], there were no other components of work that warranted special consideration in terms of construction delivery and tendering approach.

While Mr. Dejak’s reasons for segregating the Operations and Control Building from the rest of the project certainly explains why Dufferin treated the foundation and base of the fresh Glycol tanks as part of the sewers and watermains sector, there was no compelling reason provided for not including that portion of the work in the Operations and Control Building sub-project since, in our view, the construction of the foundation and tank base was clearly within the ICI sector applying an end use analysis for determining sector.

32Therefore, we are satisfied that all of the Work in Dispute, except that portion related to the construction of the foundation and above ground base for the fresh Glycol tanks is work coming within the sewers and watermains sector of the construction industry. That portion of the Work in Dispute related to the construction of the foundation and above ground base for the fresh Glycol tanks is work coming within the industrial, commercial and institutional sector of the construction industry.

33Although the Board’s sector determination concerning the Work in Dispute may well resolve the merits of this application under section 99 of the Act, if any of the parties wish to have the Board reconvene to deal with any matter remaining in dispute in this proceeding, that party must notify the Board and the other parties to this application within 30 days of the date of this decision that it wishes to continue with this matter. If no request is made to continue the hearing of this application within that time, then this application will be deemed terminated without further notice to the parties.

34This panel of the Board remains seized with this matter.

“Harry Freedman”

for the Board