Rigby Air Employees v. United Association of Journeypersons and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 787

File No.: 0378-01-R Date: July 25, 2001

Rigby Air Employees, Applicant v. United Association of Journeypersons and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 787, Responding Party v. Rigby Air Inc., Intervenor.

BEFORE: John Morgan Lewis, Vice-Chair.

APPEARANCES: Denis Cleary and Paul Rigby on behalf of the applicant; Larry Steinberg and R. Harford for the United Association of Journeypersons and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 787; no one appearing on behalf of the intervenor.

DECISION OF THE BOARD; July 25, 2001

1. The applicant has applied to the Board under section 63 of the Labour Relations Act, 1995 (the “Act”) for a declaration that the responding party (the “union”) no longer represents the employees in a bargaining unit for which it is the bargaining agent.

2. In its decision dated May 7, 2001, the Board (differently constituted) directed a representation vote to be taken of those employees of Rigby Air Inc. (the ”employer”) who were employed in the following bargaining units and who were at work on the date of application:

all Journeyperson and Apprentice Refrigeration and Air Conditioning Mechanics, Maintenance Mechanics, save and except persons above the rank of working Forepersons, employed by Employers in the Province of Ontario engaged in all of the Employers’ maintenance and/or service activities and all construction work in the Province of Ontario, other than construction work in the Industrial, Commercial and Institutional Sector of the Refrigeration and Air Conditioning Trade

and

all Journeyperson and Apprentice Refrigeration and Air Conditioning Mechanics, save and except persons above the rank of working Forepersons, employed by Employers in the Province of Ontario engaged in the Industrial, Commercial and Institutional Sector in the Refrigeration and Air Conditioning trade

3. As perhaps evidenced by the reference to the two bargaining units, the application is in reference to two separate collective agreements to which the employer is bound. One is the provincial collective agreement covering all work performed in the industrial, commercial and institutional sector of the construction industry (the “Provincial Collective Agreement”). The second is an agreement covering the non-ICI construction work, service and maintenance work (the “Other Agreement”). It would appear that the two collective agreements cover all work which falls in the refrigeration and air conditioning industry.

4. A representation vote was held on May 9, 2001 as was directed by the Board. The responding party raised a number of challenges as to the validity of the application and also challenged one of the individuals who cast a ballot on the grounds that he falls within the managerial exclusion contained in section 1(3)(b) of the Act and should be excluded from the bargaining unit. In light of the positions taken by the union, the Labour Relations Officer conducting the representation vote sealed the ballot box.

5. This matter was heard by this panel of the Board on July 10, 2001. The applicant was not represented by counsel. As a result, the Board advised the applicant at the commencement of the hearing that there was no requirement that parties appearing before the Board retain legal counsel. The Board often conducts hearings where one or more of the parties are not represented by legal counsel. The Board advised the applicant, however, that hearings before the Board are legal proceedings and that the Board’s role was to adjudicate the issues in dispute. The Board could not act as an advocate for or as an advisor to any party merely because legal counsel did not represent that party. Such role would be inconsistent with the Board’s role as a neutral adjudicator.

6. At the commencement of the hearing the parties advised the Board that there were two issues to be determined. The first was in which of the two bargaining units were employees working on the date of application and second, the status of Paul Rigby and whether he falls within the managerial exclusion pursuant to section 1(3)(b) of the Act. The parties advised the Board that they were prepared to argue the first issue without the need of calling evidence. The Board proceeded to hear argument on this issue and reserved in making a determination. The matter of Mr. Rigby’s status was not dealt with at the hearing and remains in dispute (although the parties may wish to have the uncontested ballots counted which could render Mr. Rigby’s status moot).

7. The agreed facts are set out in correspondence dated June 5, 2001 from counsel for the union and is reproduced as follows:

Based on the information provided to the Responding Party at the Regional Meeting, it appears that on the termination application date, Denis Cleary (“Cleary”) worked at the University of Toronto Faculty Club doing spring startup. At that time it was discovered that there were leaks in the system and therefore no refrigerant. Accordingly, it was necessary to repair the leaks in the system, change the oil, evacuate the system and then charge it. The system, in the state that it was in, could not possibly be operational.

On the termination application date, Jeff Shephard (“Shephard”) was working at a medical building in response to complaints that the air conditioning system was found to be non-operational and it had to be replaced. Paul Rigby (“Rigby”) worked alongside Shephard on this job.

8. The applicant takes the position that the work performed by all of the employees was not construction but rather maintenance work which is covered by the Other Agreement. The union asserts that all of the employees were performing construction work covered by the Provincial Collective Agreement. The union relies upon Francis H.V.A.C. Services Ltd. (Board File No. 3214-98-G, June 12, 2000, unreported) in which the Board analyzed the scope of the Provincial Collective Agreement and the Other Agreement and reviewed the distinction between construction and maintenance in the context of those agreements. Beginning at paragraph 9 the Board writes:

9. It is not difficult to find general definitions of the distinction between construction and maintenance in the Board’s jurisprudence. Essentially construction work involves the addition to an existing facility, results in an increase of the production capability of a facility, or restores to a working order a system which has ceased to function or to function economically. Maintenance work sustains, maintains or preserves an operating facility or part thereof, and enables it to operate efficiently or to attain its production capacity. The first such definition was set out in The Master Insulators’ Association of Ontario Inc., [1980] OLRB Rep. October 1477 as follows:

28. With the exception of the work performed at the premises of Fearman and the work on a new emergency shower and minor work in a change house at Stelco, the work performed by the employers who were named in this complaint was essentially similar in nature. In our view, the work at the premises of Fearman, which involved an addition to an existing facility and involved both relocation of producing units and the expansion of existing capacity, was clearly new construction. Similarly, the work on the emergency shower and change house at Stelco was an addition for the safety and comfort of Stelco’s employees and represented new construction. This work is clearly within the industrial, commercial and institutional sector of the construction industry. The rest of the work referred to in the 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 is 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 134a(1) of the Act.

29. Maintenance work performed 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.

This test has been followed with no substantial variation since: see Quinard Limited, [1982] OLRB Rep. July 1059, Levert & Associates Contracting Inc., [1989] OLRB Rep. June 630, and Abitibi-Price Inc., [1986] OLRB Rep. Dec. 1613, among others.

10. The real difficulty comes in the application of this test to the facts in any particular dispute. The distinction is one which is never easy to draw. This is particularly so since the context in which the work is performed is frequently determinative of the issue. In Jaddco Anderson Limited, [1998] OLRB Rep. Feb 38 the Board wrote:

11. The Board in that case came to the conclusion that the dichotomy between construction and maintenance is based primarily on a factual context. It is an analysis of the factual underpinning of any given work which allows an adjudicator to decide whether the work is construction or maintenance. In certain situations replacements of components might lead to the conclusion that the work in that context is maintenance. However in another context the replacement of components when viewed in their totality might lead to a conclusion that the work is construction because when one replaces all the components he or she is in fact rebuilding the entire system or structure.

In National Elevator & Escalator Association, [1991] OLRB Rep. April 555 the Board said:

16. … Whether something is repair or maintenance work will depend upon the nature and purpose of the work in question in the context of the facility or system in or to which the work is being performed. Generally, work performed on existing equipment in an existing facility for the purpose of keeping the facility or a system in it operating properly before the facility or system has ceased to do so, is appropriately characterized as maintenance work. On the other hand, work involving the addition to or replacement of equipment for the purpose of either increasing the capacity of the facility or system, or restoring the ability of a facility of system to function properly, is appropriately characterized as repair work. The amount, apparent significance, or value of the work in question may be part of the context in which the assessment is properly made but are in no way determinative of the question. Similarly, whether a facility or system is shut down while the work in question is being performed may also be relevant, but will not be determinative.

Finally, in Delta Catalytic Industrial Services Ltd., [1997] OLRB Rep. Nov. 979 the Board said:

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

11. One of the clearest examples of a definitional problem is the distinction between the replacement of a system, and the replacement of a component. Generally speaking, the replacement of a system is construction work and the replacement of a component is maintenance work; see Quinard Limited, supra. This merely begs the question of what is a system and what is a component. For example, Ontario Hydro Services Company operates a transmission system for the transmission of power in Ontario. Replacing the entire system would be construction. Replacing 90 kilometers of poles under a live transmission line is also construction (Ontario Hydro, [1994] OLRB Rep. Oct. 1404). To replace a single insulator on a single pole on a rural distribution line would clearly be the replacement of a component and therefore maintenance. What about one kilometer of line? What about one pole? One large steel transmission tower? In cases such as those, context is determinative. Thus in drawing on the Board's caselaw it is often more instructive to refer to the actual facts on which the decision is made by the Board than the formula articulated as the line between construction and maintenance.

The Board went on in Francis H.V.A.C. Services Ltd., supra, to apply this analytical model to a number of specific instances of work which had been performed and which were the subject matter of the dispute between the parties. The Board’s analysis in the following two references are of particular assistance to the Board in this case:

18. Exhibit 2A The customer complained of noise in the fan. When he arrived at this location the technician discovered that the fan was not working. He concluded that the bearings were “gone”, necessitating the replacement of the motor and blower wheel in an air handling unit. The unit was a 5-ton split air conditioning/heating unit. The purpose of the replaced items was for the delivery of air to the occupied area. There was no evidence as to how much of this system the replaced parts represented.

19. Simply put, this heating system was not working. Although only a single component of the system was at fault, it needed to be repaired. This is similar to the repair work described in paragraph 22 of the National Elevator case, supra. Repair is work in the construction industry. The grievance is dismissed with respect to this exhibit.

20. Exhibit 2D This was a “no heat” call from a customer. The technician discovered that the thermocouple was defective and replaced it. This is a $15 item. It detects the presence of ignition in an ignition chamber and only permits gas to flow into the chamber if it will be ignited. In this case the thermocouple had lost the ability to detect the ignition source and had cut off gas flow.

21. This exhibit presents the same problem that Exhibit 1 presents. The system is not operating, but the work required to get it to operate is trivial. The work was not planned as maintenance, but was a response to the fact that an entire system has ceased to operate. It involved the removal of an defective part and the replacement with another one. Accordingly the work is repair, trivial though it may be. The grievance is dismissed with respect to this exhibit.

9. Applying this analysis to the agreed facts leads the Board to determine that the work being carried out by the employees on the date of application is properly characterized as construction. The air conditioning systems at both job sites were not operational. As in the examples referred to in Francis H.V.A.C. Services Ltd., supra, the work is repair and falls within the construction industry. It was not disputed that the projects fall within the industrial, commercial and institutional sector of the construction industry so therefore the Provincial Collective Agreement is the applicable agreement for the purposes of this application.

10. The Board directs the Manager of Field Services to appoint a Labour Relations Officer to meet with the parties and attempt to address any issues which remain in dispute.

11. This panel of the Board is not seized with this matter.

“John Morgan Lewis”

for the Board