0895-01-G United Brotherhood of Carpenters and Joiners of America, Local 2486, Applicant v. Interpaving Limited, Responding Party v. Labourers' International Union of North America, Local 493, Intervenor.
BEFORE: Harry Freedman, Vice-Chair.
APPEARANCES: Mike McCreary, Fred Karts and Tom Cardinal appearing for the applicant; Jeffrey D. Chisholm appearing for the responding party; Carolyn Hart and Arthur Adams appearing for the intervenor.
DECISION OF THE BOARD; October 4, 2001
The applicant filed a grievance against the responding party alleging, among other things, that the responding party had employed persons who were not its members to perform work coming within the scope of the Carpenters ICI Provincial Agreement to which it and the responding party are bound. The applicant referred the grievance to the Board for determination under section 133 of the Labour Relations Act, 1995, S.O. 1995, c. 1, as amended (the “Act”). The intervenor filed a Notice of Request for Hearing and Notice of Intent to Defend/Participate and sought to intervene in the proceeding. The intervenor alleged that the grievance raised a sector dispute. By letter dated July 31, 2001 from counsel for the applicant, the Board was advised that the parties agreed to adjourn the hearing of the section 133 referral sine die (which was done by decision dated July 31, 2001) pending the determination of that sector dispute. It is the sector dispute raised by the intervenor that was before me and I proceeded to deal with this matter under section 166 of the Act, the grievance referral having been adjourned sine die. The Alternate Chair of the Board authorized me to sit alone to determine this matter pursuant to section 110(14)(a) of the Act.
The construction project giving rise to this sector dispute is the Municipal Skateboard Park in the City of Timmins (the “Project”) adjacent to the Whitney Community Centre. The applicant asserts that the Project comes within the industrial, commercial and institutional sector of the construction industry whereas the intervenor submits that the Project comes within the roads sector, or in the alternative, within the heavy engineering sector of the construction industry.
The Corporation of the City of Timmins (the “City”) awarded the Project to the responding party who carried out the work in accordance with the drawings prepared by B.H. Martin Consultants Limited (“B.H. Martin”). B.H. Martin is a firm of consulting engineers and architects, although only engineers prepared the drawings and specifications for the project. The Project involved earthmoving and grading, creating a subsurface base of 36 inches of compacted granular material covered by a 6 inch surface layer of reinforced concrete, concrete forming to construct what the responding party and intervenor referred to as curbs around the perimeter of the Project and ramps, concrete finishing, installing drains, railings and interlocking stone and other miscellaneous work.
The Municipal Skateboard Park (the “Park”) features a number of ramps, slopes and a kidney bowl for use by the skateboarders, in-line skaters, cyclists and other visitors to the facility. Around the perimeter of the Park is a 12 inch wide 24 inch high ledge (or curb or wall) with an 18 inch foundation below grade. At the entrance to the Park (a thirty-eight foot space without a ledge) are eleven 36 inch high 6 inch diameter stainless steel pipe bollards filled with concrete in a line approximately 3 ½ feet apart from each other that are bolted to the concrete surface. The bollards prevent vehicle access to the Park, but are wide enough apart to allow pedestrians and bicycles to enter.
The responding party is a construction contractor that, in the Timmins area, is principally engaged in road construction. It uses earthmovers, graders and excavators and a separate concrete crew and asphalt crew for its road and paving work. Generally, the concrete crew constructs curbs, sidewalks and retaining walls associated with its roadbuilding work. Because the Project involved concrete work similar to the kind of work its concrete crew does, and earthmoving, grading, excavating and backfilling work similar in nature to the work it performs when building a road (including the installation of storm drains), it used its concrete crew on the Project.
Counsel for the intervenor submitted that although the Board approaches sector determinations by adopting an “end use analysis”, the end use analysis does require some consideration of the work characteristics associated with the construction in issue, and in any event, the Project is like a road in that the users of the Park would otherwise be on a road to engage in the activity if the Park was not available to them. She argued that roads have a recreational element to them; a road is not simply a transportation tool. A road has multiple uses, including recreation and therefore if recreation is the end use of the Project, and that recreation would otherwise be undertaken on a road, then the end use of the Project indicates that it can fall logically into the roads sector. She also argued that different sectors must have different work characteristics that distinguish one sector from another. She argued, for example, that ICI sector construction invariably has an architect involved in the design of the project whereas a road does not. In this case, no architect was used on the Project. She pointed out that the specifications adopted by the engineer were the same specifications used by the Ministry of Transportation for highways. The granular foundations and perimeter ledges were similar, if not identical, to the foundations used in road construction and the retaining walls and curbs that are often associated with road construction. She submitted that where the end use might point to one sector, but the work characteristics point to another, then the work characteristics must ultimately be used to determine the sector into which the work falls. In this case, the work characteristics point to finding that the Project came within the roads sector of the construction industry.
In the alternative, she submitted that the Project came within the heavy engineering sector as it involved only engineering work, was designed and supervised by an engineer, required significant earth moving and because the work characteristics are typical of a heavy engineering project, such as a tunnel.
I did not require counsel for the applicant to reply to the intervenor’s alternative argument. There was no tunnelling involved in the Project and earthmoving takes place over most, if not all, sectors of the construction industry. A good description of an essential characteristic of a construction project coming within the heavy engineering sector is found in Heavy Construction Association of Toronto, [1973] OLRB Rep. May 245 where the Board wrote at page 250:
The other characteristic of construction in this sector is that it involves the use of “heavy equipment”. That is, equipment which is capable of lifting, for example, heavy steel or concrete beams or equipment that is capable of moving huge amounts of earth, stone or concrete. Perhaps the classic example of a heavy engineering project is the construction of a large bridge. [emphasis added]
There was no suggestion by the responding party or intervenor that the kind of “heavy” equipment the Board was describing in the above passage was used on the Project. Furthermore, the magnitude of the Project could hardly be described as involving the movement of “huge” amounts of earth. In my view, the intervenor’s alternative argument had no merit.
As the Board explained first in the Heavy Construction Association of Toronto case and in a number of subsequent decisions including H. Kerr Construction Ltd. (No. 2), [1999] OLRB Rep. July/August 609 (application for judicial review dismissed [2000] OLRB Rep. Sept./Oct. 1078) and Dufferin Construction Company, [2001] OLRB Rep. March/April 323 the end use of the construction that is in dispute will, in most situations, point to the applicable sector. In this case, the intervenor asserted that the Project was in the roads sector (and alternatively in the heavy engineering sector) while the applicant asserted it came within the industrial, commercial and institutional sector. Despite the imaginative argument of counsel for the intervenor, I do not accept that it is necessary to examine work characteristics of a particular project where the dispute involves sectors other than the heavy engineering sector. Since I already concluded that the intervenor’s alternative argument ought to be dismissed, the dispute remaining is whether the Project came within the industrial, commercial and institutional sector or the roads sector. The definition of sector in section 125(1) of the Act, although dividing the construction industry into sectors based on work characteristics, enumerates six of the seven sectors by reference to the product of the construction being carried out. Where, as 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 inquired into work characteristics, the dispute related to the heavy engineering sector and, more importantly the Board in that case indicated that it could not determine the sector issue based on the end use of the construction. I am convinced by and adopt the submission of counsel for the applicant that it is unnecessary to consider specific or detailed work characteristics where the end use of the construction clearly indicates that it is in one of the specific enumerated sectors (other than the heavy engineering sector) listed in section 125(1) of the Act.
Counsel for the intervenor submitted that the Board should not confine itself to asking whether the Project involved the construction of a road, but rather whether the Project came within the roads sector. She submitted that there are several kinds of construction projects that come within the roads sector that are not roads. She pointed to parking lots and bicycle and pedestrian paths as examples. When pressed, counsel acknowledged that an essential element of a road is to permit persons, riders and vehicles to move from point A to point B. She emphasized, however, that a road has many more uses other than just transportation, including recreation and that the Board should not be limited in making its determination by focussing on just one particular use of a road.
The roads sector of the construction industry clearly encompasses the construction of all types of roads. An essential element of any road, in my view, involves transportation or travel from a starting point to a destination. Although the construction of parking lots (as opposed to multi-storey commercial parking garages) or bicycle paths or pedestrian walkways or airport runways might arguably come within the roads sector of the construction industry even if they are not normally considered roads, it is not necessary for me to determine the breadth of the roads sector in this case. I would observe, however that a parking lot can be an adjunct to a road and must, in any event, be connected to a road and that bicycle paths and pedestrian walkways (and even airport runways) are constructed to facilitate the movement of persons and things from place to place, so it is not untenable to argue that their construction comes within the roads sector.
The Park is not connected to a road. Indeed, vehicular access to it is barred by the height of the ledges (or curbs) and by the spacing and size of the bollards at its entrance. The Park was designed solely for recreational purposes and not to facilitate travel from one place to another. There is no element of transportation related to the Project. Although construction of the Park was undertaken when the Whitney Community Centre was in existence and is distinct from it, the Park is adjacent to it and is a part of the recreational complex operated by the City. The City owns the Park and is responsible for it. While the Park has no direct “commercial” component, and is certainly not industrial, it is administered (to the extent there is any administration undertaken of it) by the parks and recreation department of the City. In that regard, I note that the sign prescribed in the Project’s construction specifications and drawings instructs users to “inform the parks and recreation department of any damages or needed repairs”.
I am therefore satisfied that the Project, as it was construction undertaken on behalf of the City exclusively for recreational use by the City’s residents and visitors, comes within the industrial, commercial and institutional sector of the construction industry.
The Board, pursuant to section 166(6) of the Act hereby makes an order declaring that the construction of the Municipal Skateboard Park in the City of Timmins was construction work coming within the industrial, commercial and institutional sector of the construction industry.
Should the applicant, responding party or intervenor wish to proceed with the grievance referral that was adjourned sine die by the Board’s decision dated July 31, 2001, the Registrar must be notified within 15 days of the date of this decision. In the event the Registrar is not advised that a party wishes to proceed with the grievance referral, it will be deemed terminated without further notice to the parties. If the grievance referral does proceed before the Board, this panel of the Board is not seized with it.
“Harry Freedman”
for the Board