1.                           The applicants apply to the Board under section 166 of the Labour Relations Act, 1995, S.O. 1995, c. 1 as amended (the “Act”) for a determination that the work being done at the Green Electron Power Project (the “Project”) comes within the electrical power systems sector of the construction industry.  The responding parties and intervenors all take the position that the work at the Project is in the industrial, commercial and institutional sector of the construction industry.

2.                           This sector dispute arose as a result of grievances and certification proceedings having been filed with the Board in which the sector determination was material to the disposition of those other proceedings.

3.                           As noted in the Board’s previous decision in this matter dated January 24, 2014, the Project is a new natural gas fired combined cycle electricity generating facility located in St. Clair Township in Lambton County which is in Board Area 2.  The applicants are the owners and developers of the Project.  They have undertaken the construction of the Project by directly hiring many of the tradespeople who are working at the Project.  The applicants have not engaged a general contractor to carry out the construction of the Project.

4.                           The applicants acknowledge they are bound by the respective provincial collective agreements in the industrial, commercial and institutional sector by which Labourers’ International Union of North America, Local 1089 and Labourers’ International Union of North America, Ontario Provincial District Council (the “Labourers”); Carpenters District Council of Ontario, United Brotherhoods of Carpenters and Joiners America and its Local 1256 (the “Carpenters”); United Association of Journeymen and Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, Local 663 (the “UA”); the International Brotherhood of Electrical Workers, Local 530 (the “IBEW”) and the International Union of Operating Engineers, Local 793 (the “Engineers”) are each bound.  Although not conceded by the applicants in its materials, the Board notes that the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers and its Local 128 (the “Boilermakers”) were certified by the Board by decision dated October 15, 2013 (Board File No. 1950-13-R) in respect of boilermakers employed by the applicants in the industrial, commercial and institutional sector in the Province of Ontario and in all other sectors in Board Area 2.  As a result, the applicants are also bound by the Boilermakers’ provincial agreement in respect of the industrial, commercial and institutional sector by virtue of section 163(2) of the Act. 

5.                           None of the parties assert that the applicants are bound by collective agreements in respect of Board Area 2 outside the industrial, commercial and institutional sector.

6.                           The Sarnia Construction Association (the “SCA”) applied for an interim order declaring that the work at the Project is in the industrial, commercial and institutional sector.  The applicants and the Labourers oppose the Board issuing an interim order.  The other responding parties and intervenors support the SCA’s request.

7.                           While not specifically seeking an interim order, several of the responding parties and intervenors in their responses and interventions moved to have the Board determine the sector issue raised in this proceeding by way of a summary determination on the grounds that none of the material facts relevant to that sector determination are in dispute and because, according to the parties seeking that summary determination, there is nothing set out in the application and in the material filed by the applicants in support of their application that warrant the Board departing from the approach taken by the Board (differently constituted) in Barclay Construction Group Inc., [2008] OLRB Rep. Mar./Apr. 136 and in V.K. Mason Construction Co., [2009] OLRB Rep. Nov./Dec. 985.  The responding parties and intervenors contend those decisions, and the Barclay Construction Group Inc. decision in particular, clearly set out the how the Board determines a sector dispute in connection with the construction of a natural gas fired steam powered electric generating station that is neither owned by nor on the property of what was once Ontario Hydro.

8.                           The motions for both an interim order and summary determination were dealt with at the consultation scheduled for January 27, 2014 in accordance with the directions issued by the Board at paragraph 13 of its January 24^th decision in which it wrote:

9.                           The Board in its January 24^th decision observed that the applicants, while prepared to address both the motion for an interim order and the motion for a summary determination, were opposed to having the Board deal with the matter on the merits in the limited time available to the parties at the consultation after the Board had received the parties’ submissions on those two motions.  The applicants pointed out “they would need at least one hour to establish why the Project is different from the project that was in issue in Barclay Construction Group Inc., [2008] OLRB Rep. Mar./Apr. 136 and why that decision was wrongly decided.”  It appears that underlying the applicants’ position that they were prepared to deal with the motion for a summary determination at the consultation on January 27^th and not to have the Board consider the merits of the case at that time was their assumption that the motion for a summary determination would likely be dismissed.

10.                        The applicants in both their application and in their subsequent submissions maintained that the Project materially differed from the construction projects in the Barclay and V.K. Mason proceedings where the Board had found that the construction work at those projects was in the industrial, commercial and institutional sector.  The Board at paragraph 12 of its January 24^th decision wrote:

11.                        After hearing the parties’ submissions with respect to the motion made by the SCA for an interim order, the Board next received the parties’ submissions with respect to the motion for a summary determination.  There was a good deal of overlap between the parties’ arguments with respect to one element of the appropriate test for determining whether to grant an interim order, that is, whether the party seeking the interim order had established a prima facie case on the merits and the parties’ submissions with respect to the motion for a summary determination.

12.                        The Board in Yukon Construction Inc., [2004] OLRB Rep. May/June 664 made the following observation with respect to its power to make interim orders under section 166 of the Act at page 668:

13.                        The Board in Yukon Construction Inc. dismissed the motion for an interim order, although in doing so noted that the applicant had established a prima facie case on the merits.  The Board was not persuaded that the balance of convenience favoured the granting of the order, and was not persuaded that the labourers’ union and its members would suffer irreparable harm if the order were refused.  The Board also noted that it believed Yukon Construction Inc. would suffer irreparable harm if the order requested was granted.

14.                        The SCA and the other responding parties and intervenors that support the SCA’s motion for an interim order, other than the Labourers, contend that the interim order is needed to maintain labour relations stability at the Project.  The failure of the applicants to abide by all the terms and conditions of the applicable provincial agreements means that there is no recourse available when those collective agreements are violated.  The SCA contends that because the applicants have been applying the provincial agreements at the Project, the interim order it seeks is simply confirmatory of what is already taking place at the Project.  It submits that there is irreparable harm being caused by the applicants taking the position that the Project is not in the industrial, commercial and institutional sector since the applicants have created labour relations instability in the Sarnia area, giving rise to a situation where the applicants are taking advantage of the disputes between the various trade unions over work jurisdiction.  Those disruptions are, according to the SCA, affecting the relationships the SCA’s members have with those trade unions.

15.                        The responding parties and intervenors that support the SCA’s motion for an interim order also assert irreparable harm as their members are being deprived of the work opportunities at the Project.  They contend that if the applicants applied all the provisions of the provincial agreements their members would be assigned work at the Project in accordance with their established work jurisdictions.  They also dispute that the applicants have been complying with the provincial collective agreements as there have been some disputes over the proper application of those agreements as well as grievance referrals relating to discipline and discharge.

16.                        In this case the applicants do not seriously dispute that the SCA and the other responding parties and intervenors that support the SCA’s motion for an interim order, other than the Labourers, have demonstrated that they have a prima facie case that the work at the Project is in the industrial, commercial and institutional sector.  The applicants however contend that their case for establishing that the work at the Project comes within the electrical power systems sector is, on balance, much stronger.  They also strenuously submit that the parties seeking the interim order, that is, an interim declaration that the work at the Project is in the industrial, commercial and institutional sector have neither established that they would suffer irreparable harm if the order is not granted nor have they demonstrated that the balance of convenience favours granting the order.  The applicants also argue that if such an order was made they would suffer irreparable harm as they would be required to apply the collective agreements in the industrial, commercial and institutional sector by which they are bound (the provincial agreements with the Labourers, the Carpenters, the UA, the IBEW, the Engineers, and the Boilermakers) on an interim basis pending the Board’s ultimate determination.  They point out that there have been grievances filed under some of those collective agreements that would also proceed, presumably on an interim basis.  They contend that if those grievances succeed, they might be required to make payments that would likely not be recoverable if the work at the Project is ultimately determined to come within the electrical power systems sector.

17.                        The applicants argued that they developed and planned the Project on the basis that it is in the electrical power systems sector.  Since they are not bound by collective agreements in Board Area 2 outside the industrial, commercial and institutional sector, they determined the best manner in which to carry out the work at the Project.  They contend they do not approach the planning and execution of the construction work at the Project in the same way as general contractors or project managers.  As the owners that are responsible for carrying out the construction of the Project they require some flexibility in how they carry out that work. 

18.                        The applicants assert that they abide by the wage and benefit remittance provisions of the provincial agreements in respect of all the trades that are working at the Project so that the parties seeking the interim order are not in a position to claim that they are suffering irreparable harm.  The trades people working on the Project are being paid and having remittances made on their behalf in accordance with their respective provincial agreements.  The applicants also argue that the irreparable harm claim based on labour relations stability is a function of the conduct of the trade unions themselves.  The applicants assert that the SCA and the other responding parties and intervenors cannot come to the Board seeking an interim order and rely on their own misconduct or the alleged turmoil they themselves have created to justify that kind of  extraordinary order.

19.                        One of the purposes of an interim order under section 166 of the Act is to maintain the status quo at a construction project so that work at the construction project continues without interruption pending the resolution of the dispute.  In this case, the responding parties and intervenors contend that the status quo is that the Project is in the industrial, commercial and institutional sector given that is how construction work at such electric generating station projects in Board Area 2 is treated.

20.                        The SCA in its submissions asserts that the applicants cannot just come into Board Area 2 and disregard the bargaining patterns that have been established there.  The SCA argues that the applicants are bound by the provincial agreements with several trade unions in the industrial, commercial and institutional sector and in order to maintain the status quo ought to be required to apply those agreements on an interim basis. 

21.                        The applicants contend that the status quo at the Project is how they have been working at the Project since its inception.

22.                        The Board at the conclusion of the consultation was not prepared to issue the interim order sought by the SCA and reserved its decision on the interim order motion.

23.                        The SCA and the responding parties and intervenors supporting the motion for an interim order have not satisfied me that they would suffer irreparable harm if the order is not made.  Moreover, the applicants have demonstrated that the balance of convenience does not favour granting the interim order since having the grievance referrals proceed on an interim basis might result in orders being made against the applicants which would have to be reversed if they were successful in obtaining the sector determination they are seeking.  Finally, I have not been persuaded that the status quo is, as the SCA and the responding parties and intervenors other than the Labourers’ suggest, that the work at the Project is in the industrial, commercial and institutional sector.  In my view, given the position that the applicants have taken from the outset of the Project, the status quo is that the work at the Project is not in the industrial, commercial and institutional sector.

24.                        The motion made by the SCA for an interim order is therefore dismissed. 

25.                        The essence of position taken the by responding parties and intervenors in support of their request for a summary determination is that it is now well established that natural gas fired steam powered electric generating stations are construction projects that are in the industrial, commercial and institutional sector of the construction industry.  They contend that it is up to the applicants to demonstrate or “show cause” why their particular construction project in Board Area 2 ought to be characterized as something other than a construction project in the industrial, commercial and institutional sector.  All the responding parties and intervenors contend that the Project is not in any material way different from the construction project the Board considered and dealt with in the Barclay Construction Group Inc. case.

26.                        The applicants oppose the Board making a summary determination of the sector issue in this case.  The applicants contend there are factual matters that distinguish the Project from the project considered by the Board in the Barclay proceeding.  They also contend that the Board’s decision in Barclay ought not to be followed as it is wrong in its analysis of the relevant factors that ought to be addressed when making a sector determination, and in any event, some of the critical factual findings the Board relied on in reaching its decision were incorrect. 

27.                        The applicants in their submissions with respect to the summary determination motion were able to fully set out their arguments with respect to why the Board ought not to determine the matter in a summary fashion and in any event, why the Project is different and more importantly why some factual errors in the Barclay decision resulted in the Board making a decision that ought not to be followed in this case.

28.                        The applicants assert that the sector issue raised in this proceeding is far too important and complicated to be dealt with in a summary fashion.  They say that it is apparent from the arguments made by the parties in connection with the motion for an interim order that there are two competing cases, each with a considerable degree of merit that require a full analysis of the issues.  They also point out that the Board has not in any previous sector case made a summary determination with respect to such an important issue.

29.                        The applicants assert there is a significant and material factual dispute between them and the other parties with respect to the ultimate end use of the Project.  The applicants claim that the Project is being built for the sole purpose of generating electricity to sell to the electricity market in the Province.  They say that there is no possibility that there will be any ancillary uses for the steam or waste water that may be a by-product of the Project when it begins generating electricity.  (The responding parties and intervenors submitted that the design of the Project with some minor modifications would allow the applicants to sell excess steam or waste water to surrounding industries.)

30.                        The applicants also emphasize that they are both the owner and constructor of the Project, unlike the situation in the Barclay case where Barclay Construction Inc. was one of several general contractors engaged in construction work at the project in issue in that case.  More importantly, the applicants assert that the Board in the Barclay decision made a point of not examining the work associated with connecting the project to the provincial electrical grid.  In this case, the connection to the grid is the responsibility of the applicants and is, in their submission, a significant and critical factor in distinguishing the Project from the other steam powered electric generation projects that have either been agreed to or been found to be in the industrial, commercial and institutional sector.

31.                        Contrary to the applicants’ submissions, it is apparent that the Board in Barclay did consider the work associated with connecting the project in that case to the provincial electrical grid when it wrote at page 153:

32.                        The applicants rely on six factors to claim that the Project clearly differs from the construction project the Board dealt with in the Barclay case.

33.                        They first point out that the manner of construction is different in that they are both the owners of the Project and the entities that have undertaken construction of the Project using their own employees, some of whom have been hired through the responding parties’ or intervenors’ hiring halls and others who are existing employees whom they have engaged directly to perform both construction work and who will be employed in operating and maintaining the generating station after the construction is completed.  The project that was considered by the Board in Barclay was being constructed by general contractors engaged by the owners of that project.  They point out that Barclay Construction Inc. itself was one of the four general contractors that were engaged on that project.

34.                        The applicants are responsible for the connection of the Project to the provincial electricity grid.  That connection is an integral element of the Project.  They contend that the Board in Barclay did not consider that element when it was characterizing the overall nature of that construction project.  The applicants point out that the Board’s assessment of the characterization of the work at the Barclay project did not take into account the work associated with connecting that project to the Ontario electricity grid.  They say that the Board’s failure to consider the role of connecting that project to the Ontario electricity grid is a major distinction between the Project and the Board’s decision in Barclay.

35.                        The applicants also contend it is significant that their Project has only one end use.  It is being constructed for the sole purpose of generating electricity and selling that electricity into the provincial electricity market.

36.                        The applicants claim that bargaining patterns in respect of natural gas fired steam powered electric generating stations have not been settled.  While some have been treated as being in the industrial, commercial and institutional sector, the applicants contend that the electric generating projects that they have undertaken in Ontario have all been dealt with as construction projects that are in the electrical power systems sector and not the industrial, commercial and institutional sector.  The applicants also assert that both the end use and the work characteristics of the Project clearly point to it being in the electrical power systems sector.

37.                        The applicants submit that the Board made a number of factual errors in coming to the decision it did in the Barclay decision in describing both the nature of the work and the relevant bargaining patterns.  They argue that all those distinctions ought to cause the Board to take a proper look at the sector issue and not just merely accept that the decision in Barclay is binding on them and on the Board in coming to the proper determination in this case.

38.                        The Board in The City of Sault Ste. Marie, [2002] OLRB Rep. Sept./Oct. 870 has made clear that when determining a sector issue the Board must examine the work characteristics associated with the project in issue, its end use and bargaining patterns associated with how the employers and trade unions in the construction industry perform the work in issue.  That approach was adopted by the Board when it reached its decision in the Barclay case.

39.                        There is no doubt that the end use of the Project points to it being in the electrical power systems sector.  In coming to that conclusion I have accepted the applicants’ assertion that the sole purpose of the Project is the generation of electricity that will be connected to the provincial electricity grid and sold through the market mechanisms that have been established by the Ontario government.  That factor does not however distinguish the project that was the subject of the Barclay decision from the Project.  In Barclay the Board noted at page 137:

40.                        The applicants contend that because they are both the owners and contractors who are carrying out the construction work at the Project, the work characteristics associated with the Project are clearly distinguishable from the situation the Board was faced with in Barclay.  The construction of the project in Barclay was carried out by general contractors that had been engaged by the owners of that project.  The applicants contend that general contractors will often parcel up the work and seek bids for portions of the work that is to be done.  At the Project, the applicants are responsible for all the work that is to be done on their site.  They are not dividing up the Project into separate parcels but rather are doing all the work as one overall construction project where they have immediate and direct control over how the work is to be done.  The applicants say their work model differs significantly from the manner in which general contractors carry out construction projects on behalf of the owners that have retained them.

41.                        The Board in the Barclay decision did not find that the “connection to the electrical grid” element of that project was significant enough to conclude that that entire project came within the electrical power systems sector.  The Board in reaching its decision in that case wrote at page 159 

42.                        The applicants assert that the model of construction they carry out is much closer to how Ontario Hydro carried out construction work.  It was the Ontario Hydro model of construction work that appeared to be a significant element in discerning the extent of the electrical power systems sector.  The applicants point to the following passage at page C.1-10 of the 1978 Ellis Report referred to at page 990 of the V.K. Mason Construction Co. decision to support their assertion:

43.                        The scope of the electrical power systems sector has evolved from what might have been its limits at the time Ontario Hydro was perhaps the most significant construction industry employer in the Province of Ontario.  While the end use of all electric generation construction projects is the same, it is also clear that the construction associated with electric power generating facilities is carried out differently depending on the method by which electric power will be generated.  Indeed, the work characteristics and bargaining patterns associated with the construction of wind farms are very different from the bargaining patterns and work characteristics associated with the construction of natural gas fired steam powered generating stations.  It is also likely that the work characteristics and bargaining patterns associated with the construction of solar farms may well differ from the work characteristics and bargaining patterns associated with the construction of gas fired steam powered generating stations, or the construction of hydro electric generating stations, or the construction of nuclear powered generating stations.  Thus, it is apparent that in assessing the sector into which the work done on a construction project with generating electricity as its end use falls, that end use cannot be the sole determining factor on which the Board is to base its decision. 

44.                        The distinctions relied on by the applicants to suggest that the work characteristics associated with the Project are materially different from the work characteristics discussed by the Board in the Barclay decision do not persuade me that the work at those two projects should be in different sectors.  Both the Project and the project considered in the Barclay decision involved the construction of a natural gas fired steam powered generating station.  In my view the fact that the method of steam condensing on the two projects differed is not material to the work characteristics associated with the construction of those projects, nor is the fact that the Barclay project was designed to operate as both a single cycle and combined cycle natural gas fired steam powered electric generating station whereas the Project is only designed as a combined cycle natural gas fired steam powered electric generating station.  In addition, the difference between the pollution control systems at the Barclay project (selective catalytic reduction of nitrous oxide using a large catalytic insert and an ammonia based system to reactivate it) and at the Project (low nitrous oxide burners on the gas turbine which are ammonia free) is not in my view material to the assessment of the relevant work characteristics at the Project as the applicants contended. 

45.                        The actual construction at the Project involves the construction of two large buildings to house the electrical power generators and other related equipment, a heat recovery steam generator including flue gas stack, a cooling tower, a parts storage building, electrical transformers housed in an electrical transformer station at the site and an electrical switchyard.  The Barclay project was described briefly at paragraphs 3 and 5 of that decision where the Board wrote:

46.                        In my view, for purposes of assessing the work characteristics of the Project it is important to consider how that term has been used and understood.  The Board in its first significant decision dealing with the concept of sector under the Act discussed work characteristics in the following way in Heavy Construction Association of Toronto, [1973] OLRB Rep. May 245 at page 249:

47.                        The Project is, in my view, for purposes of analysing the work characteristics, virtually the same as the project examined in Barclay.  The Project is described by the applicants as an electrical power plant consisting of one gas turbine generator fuelled by natural gas, one heat recovery steam generator and one triple pressure, reheat, full condensing steam turbine generator set.  As the Board noted in the Barclay case, steam is a common form of energy used in a variety of industries; it is not used exclusively in electrical generating plants.

48.                        In my view, despite the able and persuasive submissions of the applicants, the work characteristics and end use of the Project cannot be distinguished from the analysis used by the Board in the Barclay case.  More importantly, the actual work characteristics associated with the construction of the natural gas powered turbine generator, the heat recovery steam generator and the triple pressure condensing steam turbine generator components of the Project are likely to be found in the construction of any large industrial facility that will use steam power in its processes, including steam driven electrical co-generation plants.  It seems to me that the work characteristics associated with the construction of a single end use natural gas fired steam powered electrical generating plant such as the Project are also more closely associated with industrial projects where the steam power being created is used not just for generating electricity but is also used for other industrial purposes.

49.                        The construction project that was the subject of the Board’s sector determination in V.K. Mason Construction Co. was a plant that generated steam for use by a paper mill and in the production of electric power for sale to the Ontario electricity grid.  The construction work taking place on that kind of a co-generation facility has long been regarded as work coming within the industrial, commercial and institutional sector.  It seems to me that both kinds of steam power plants, whether having electricity generation as its sole purpose or whether the steam power plant may also have other industrial purposes does not materially affect the work characteristics associated with the construction of those projects—the nature of the construction work carried out on those kinds of construction projects is far more akin to work that comes within the industrial, commercial and institutional sector.

50.                        The applicants strenuously argued that they are different from the owners, developers, contractors and employers that have been engaged in the construction of steam powered electrical generating stations since the late 1990’s when the Province of Ontario opened up the electricity market and encouraged a wide variety of electric generating facilities to be built, including thermal electric using natural gas fired steam power plants, wind farms and solar farms.  The applicants contend their model of construction where they are both the owner and constructor has established a pattern of bargaining that is much closer to how Ontario Hydro carried on its construction work when such work was always considered to be within the electrical power systems sector.

51.                        In my view, the applicants have approached the assessment of the factor of bargaining patterns from the wrong perspective.  It seems to me that the proper analysis of that factor when making a sector determination is to examine the bargaining patterns that have developed in connection with the construction of similar projects in the Province rather than assess the bargaining patterns being used by a particular employer.

52.                        When one considers the bargaining patterns associated with the construction of electrical generating stations that had been undertaken by Ontario Hydro; thermal, hydro or nuclear, whether the perspective used in making that assessment was focussed on the employer’s bargaining patterns or the bargaining patterns that developed in connection with the construction of those projects, the result would be the same.  Ontario Hydro was the principal, if not the only, owner and contractor responsible for those kinds of projects.  Simply put, examining the bargaining patterns associated with those kinds of projects or examining the bargaining patterns established by the principal employer and owner, Ontario Hydro, lead to the same result.

53.                        Where, however, different owners and construction contractors are undertaking similar kinds of gas fired steam powered electrical generating projects throughout the province, it seems to me that when assessing the criterion of bargaining patterns, the focus ought not to be an examination of what a particular owner or contractor has done.  If that were the case, virtually identical construction projects carried out in the province or even in the same Board Area that are undertaken by two different owners or built by two different contractors could result in similar work done on similar construction projects coming within two different sectors.  In my view, such a result would lead to uncertainty and instability and thereby adversely affect the ability of project owners and their contractors to develop, plan, budget for and carry out the construction of significant and economically vital projects in the Province of Ontario and adversely affect the ability of the trade unions that may be responsible for providing the skilled tradespeople to carry out that work to have their members available and willing to perform work on those projects by ensuring that their members who will work on similar projects are treated equally and of those trade unions to have the same opportunity to have their members assigned to carry out the available work.

54.                        The Board in Leo Alaire and Sons Ltd., [2006] OLRB Rep. Sept./Oct. 721 observed at page 725 after referring to the Board’s decisions in West York Construction Ltd., [1983] OLRB Rep. Dec. 2132 and Ontario Hydro, supra:

55.                        The applicants asserted that the electrical generation construction projects they have undertaken and completed (Keele Valley and Brock West) and the one that was aborted in Mississauga were not projects in the industrial, commercial and institutional sector.  Some of the responding parties and intervenors disagreed and asserted that those projects were treated, by at least the trade unions and their members who worked at those projects, as being in the industrial, commercial and institutional sector.  The applicants do acknowledge that the Brock West project was contracted to SNC Services Ltd. to provide a finished product to the applicants.  That project was constructed by SNC Services Ltd. using both union and non-union contractors with some contractors choosing to apply the provincial collective agreements applicable to the industrial, commercial and institutional sector.

56.                        The responding parties and intervenors in their materials referred to a number of electrical generation construction projects, many of which were co-generation projects both within and outside Board Area 2, to demonstrate the bargaining patterns that have developed in the construction industry with respect to work on such projects.  They say those bargaining patterns make clear that the work done on those kinds of projects comes within the industrial, commercial and institutional sector.  In my view, the material filed by those parties is consistent with the Board’s conclusion with respect to bargaining patterns set out at paragraph 70 of the Barclay decision where the Board wrote:

57.                        Moreover, I believe that the Act itself contains a process that allows the owners or developers of large scale construction projects such as natural gas fired steam powered electric generating stations to attempt to negotiate and secure agreements that are specific to their objectives when they themselves undertake the construction of such projects if those projects do come within the industrial, commercial and institutional sector.  The project agreement provisions set out in section 163.1 of the Act create a mechanism where the proponents of those projects, if they are able to secure agreements from the requisite number of trade unions that would likely be the source of skilled tradespeople who would work on those project, may be able to have the applicable industrial, commercial and institutional sector provincial agreements effectively amended so that the issues those owners or developers face when undertaking those projects can be addressed. 

58.                        A project agreement secured pursuant to section 163.1 of the Act can only be obtained in respect of an industrial project in the industrial, commercial and institutional sector of the construction industry unless the project is designated by regulation as a project that may be the subject of a project agreement (see section 163.1(3)¶4) or an affected party fails to file a timely objection to that project agreement on the grounds that the project is not an industrial project.  See Cope Construction and Contracting Inc., [2009] OLRB Rep. July/August 537 at 547.  It seems to me that having project agreements in place for the type of construction projects that the applicants have undertaken and may undertake in the future would create a collective bargaining structure that is similar to the kind of bargaining structure that was developed for the large scale capital construction projects that Ontario Hydro undertook.  In other words, the project agreement provisions of the Act that are principally applicable to industrial projects in the industrial, commercial and institutional sector allow both the owners and developers of those projects and the trade unions that may be affected to negotiate and enter into an agreement that varies the provincial collective agreements that the applicants asserted were not suitable to their objectives and the methods they envisioned for the construction of the Project.

59.                        The responding parties and the intervenors moved for a summary determination of the sector issue because they contended that the Project was not materially different from the construction project that was examined by the Board in the Barclay decision.  I have reached the conclusion that the distinctions or differences on which the applicants relied to contend that the Project is in the electrical power systems sector because it was materially different from the project examined by the Board in Barclay are not so materially different to warrant the Board making the determination that the applicants seek.

60.                        I did note earlier that the applicants were responsible for the work associated with the “connection to the electrical grid” and that Barclay Construction Inc. was not.  In my opinion that distinction is not material to the ultimate conclusion I have reached in this case.  The Board in Barclay simply observed that Barclay Construction Inc. was not responsible for that work in any event and, I think more importantly, left open the question as to whether the work associated with connecting that project to the provincial electricity grid was in the electrical power systems sector or the industrial, commercial and institutional sector when it wrote at page 159:

61.                        While this panel of the Board is not bound by the analysis and determination found in the Barclay decision, I am of the view that even if I had some concerns with the reasoning and result in that case (which I do not), it is more important that the Board follow an earlier Board decision dealing with the same issue and similar facts unless it is satisfied that that earlier decision was clearly wrong.  I adopt the following comment made by the Board in University of Western Ontario, [1972] OLRB Rep. Dec. 1038 where the Board wrote at page 1039:

62.                        Not only has the Board in this summary determination examined whether the Project is sufficiently distinct to warrant a result that differs from the decision made by the Board in the Barclay case, it has also considered the parties’ arguments with respect to the proper characterization of the Project based on the well established principles used by the Board when making a sector determination.

63.                        In making this determination, the Board has specifically not determined that all the construction work undertaken by or on behalf of the applicants at the Project is in the industrial, commercial and institutional sector.  In the same way that the excavation work associated with the installation of sewers and watermains within the property lines but outside the building footprint of a large industrial or commercial construction project has been determined by the Board to be in the sewers and watermains sector (see, for example, Steen Contractors Limited, [1989] OLRB Rep. Nov. 1173) even though the project itself is in the industrial, commercial and institutional sector or that despite the Board finding that a large landfill construction project is in the industrial, commercial and institutional sector, the construction of gravel roads[1] at that landfill project may arguably be in the roads sector, this decision is not determining whether the work that is carried out on some specific and discrete segments of the Project, such as connecting the Project to the provincial electricity grid or constructing the electrical transformer station or switchyard is in the industrial, commercial and institutional sector.

64.                        In the result the Board is satisfied and pursuant to section 166 of the Act hereby determines that the work at the Project that is associated with the construction of two large buildings to house the electrical power generators and other related equipment, the heat recovery steam generator including flue gas stack, the cooling tower, and the parts storage building comes within the industrial, commercial and institutional sector of the construction industry.

65.                        The summary determination motion made by the responding parties and intervenors is granted.

66.                        The consultation that had been scheduled in this matter for February 20, 2014 is cancelled.