Labourers' International Union of North America, Local 1059 v. Ellis Don Limited, 1992 CanLII 6347

[1992] OLRB Rep. June 695

1933-90-JD Labourers' International Union of North America, Local 1059 and Labourers' International Union of North America, Ontario Provincial District Council, Complainants v. Ellis Don Limited and Operative Plasterers' and Cement Masons International Association of the United States and Canada, Local 598, Respondents.

BEFORE: Robert Herman, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.

APPEARANCES: L. A. Richmond and J. MacKinnon for the complainants; Joseph Liberman and Paul Richer on behalf of respondent Ellis Don; N. L. Jesin and Livio Balanzin on behalf of respon­dent Operative Plasterers' and Cement Masons International Association of the United States and Canada, Local 598.

DECISION OF THE BOARD; June 30, 1992

1. This is a jurisdictional dispute complaint filed on October 24, 1990, pursuant to section 93 of the Labour Relations Act.

2. The work in dispute in this complaint is the chipping, grinding, parging, patching, rub-up and finishing (hand trowelling) of concrete at the University of Western Ontario Library project of Ellis Don in London, Ontario. Ultimately, this work was performed by members of the Labourers Local 1059, resulting in a grievance filed by the Cement Masons, Local 598, which in turn was deferred to the filing of the instant jurisdictional complaint.

3. Consistent with the Board's Practice Note #15, Briefs were filed by the parties, and a Pre-Hearing Conference was held before a differently constituted panel of the Board, on Decem­ber 16, 1992. A Memorandum was issued to the parties, following the Pre-Hearing Conference, setting out matters agreed to, those in dispute, and the positions of the parties on certain issues. A hearing was then held, on May 19, 1992, before the instant panel, the "merits" panel, to consider preliminary matters or objections raised by the parties. This decision sets out some of the rulings made orally at the hearing, together with our decisions on those matters reserved on at the hear­ing.

4. The Cement Masons argued that there was no dispute involving potentially overlapping work jurisdictions before the Board. It submitted that the instant complaint raised, instead, issues of overlapping representational rights or bargaining rights. More particularly, as noted in its letter to the Board of February 14, 1992, the Cement Masons took the position that the Labourers' juris­diction over the work in dispute flowed exclusively from the Cement Finishers Appendix to the Labourers' Provincial Agreement, rather than from the labourers' designation with respect to industrial, commercial, and institutional ("I.C.I.") work. As counsel for Local 598 put it in his let­ter of February 14, 1992: "Thus, the Labourers' claim to the work in dispute can only arise if the Labourers' have bargaining rights for cement finishers (as distinct from just labourers) employed by Ellis Don. Because the Labourers' do not represent cement finishers employed by Ellis Don, this complaint should be dismissed without a hearing on the merits".

5. This argument, and the submissions in support of it, were not reflected in the Brief filed by the Cement Masons, as required by the provisions of Practice Note #15. An issue arose over whether it could be raised before the merits panel.

6. The relevant parts of Practice Note #15 read as follows:

7. The Board has adopted a pre-hearing conference procedure for jurisdictional disputes heard by the Board under section 93 of the Labour Relations Act. The Board will schedule a pre-hear­ing conference before a Vice-Chair and/or Board members. The purpose of this pre-hearing conference is to settle the dispute or, in the absence of settlement, to narrow the issues in dis­pute.

8. The parties are required to file complaints, replies or interventions in accordance with the Board's Rules and this Practice Note, and, in particular in accordance with Rule 60. Rule 60 states:

9. A complainant shall file together with his complaint, and every person served with a notice of application shall file together with his reply,

(a) any union constitution;

(b) any collective agreement;

(c) any agreement or understanding between trade unions as to their respective jurisdictions or work assignment;

(d) any agreement or understanding between a trade union and an employer as to work assignment;

(e) any decision of any tribunal respecting work assignments; and

(f) any other document, relating to the work in dispute which may be in his possession and upon which he proposes to rely in support of his claim for relief of his claim that the relief requested should not be granted, as the case may be, and a statement as to any area or trade practice relating to the work in dispute, and pictures, diagrams or drawings of the disputed work.

IN ADDITION, each party must, at the same time, file a brief which contains a concise state­ment of the issues in dispute, including a detailed description of the work in dispute, and the material facts upon which it intends to rely.

3. Prior to filing its complaint with the Board, the complainant must serve a copy of its com­plaint with the material referred to in paragraph 2, as well as a copy of this Practice Note, on each respondent and each person named by the complainant as someone who may be affected by the complaint.

4. The complainant must file its complaint and the material referred to in paragraph 2 in qua­druplicate with the Board. The complaint must be accompanied by a certificate of service as set out in paragraph 7 in respect of each respondent and each person named in the complaint as someone who may be affected by the complaint. When all the material has been served and filed, a date for the pre-hearing conference will be set by the Registrar. A COMPLAINT WILL NOT BE PROCESSED BY THE BOARD UNLESS THE COMPLAINANT HAS COM­PLIED WITH THE REQUIREMENTS OF PARAGRAPHS 2, 3 AND 4.

5. Prior to filing its reply with the Board, a person served with the complaint must serve a copy of its reply and the material referred to in paragraph 2 on each of the other parties.

6. A reply and the material referred to in paragraph 2 must be filed in quadruplicate with the Board. The reply must be accompanied by a certificate of service as set out in paragraph 7 in respect of each other party. All respondents and others served with notice of the complaint must file their replies and other material referred to in paragraph 2 with the Board no later than twenty-one (21) days from the date service of the complaint was effected on them by the com­plainant. If the twenty-first day falls on a day on which the Board's offices are not open to the public, the reply with accompanying material must be filed no later than the next business day of the Board.

7. EXCEPT WITH LEAVE OF THE BOARD, PARTIES WILL NOT BE PERMITIED TO ADDUCE EVIDENCE AT THE HEARING OF ANY MATERIAL FACT NOT DIS­CLOSED IN THE MATERIAL FILED WITH THE BOARD PURSUANT TO THIS PRAC­TICE NOTE.

8. If a hearing is to be scheduled following the pre-hearing conference, the Vice-Chair and/or the Board members conducting the conference shall forward to the Registrar for distribution to the parties, a memorandum of all agreements reached by the parties. The Vice-Chair and/or the Board members conducting the conference will not be members of the panel hearing the com­plaint on its merits.

9. Counsel for Local 598 conceded that the preliminary objection set out in paragraph 4 above had not been included in Local 598's Brief but submitted that it had been raised in subse­quent correspondence and in any event, the essential facts upon which it was based had been set out in its Brief. Further, Local 598 noted that its preliminary objection had been raised during the Pre-Hearing Conference itself, although the Memorandum had not noted this. In counsel's submis­sion, Local 598 was not raising a new matter, but only elevating its argument to the next logical step.

10. The Board accepted, for purposes of its ruling, that Local 598 had raised this issue dur­ing the Pre-Hearing Conference. Nevertheless, the issue had not been identified in its Brief, as it should have, in accordance with Practice Note #15. In paragraph 2 of the Practice Note parties are directed to file Briefs that identify the issues and the material facts, amongst other matters. What was raised in the Brief, at paragraph 14, was the position of Local 598 that the area practice evi­dence ought to be restricted to those employers who had or have either a collective bargaining relationship with Local 598, or with Labourers' Local 1059 insofar as Local 1059 represented con­struction labourers. In its Brief, Local 598 argued that evidence should not be allowed of the prac­tice of employers who bargained with the Labourers' with respect to cement finishers.

11. That is a different matter from arguing, as it now does, that the issue before the Board is not a jurisdictional work dispute, but one of overlapping bargaining rights, and accordingly the complaint ought to be dismissed without a hearing. Since Local 598 had not properly raised this issue in its Brief, and given the nature of the argument, the Board ruled that it would not decide the issue as a preliminary objection, without prejudice to the right of Local 598 to raise this argu­ment in final submissions. Parties raising preliminary objections in jurisdictional complaints must identify them in their briefs, or at least prior to the Pre-Hearing Conference.

12. The Board next dealt with the issue of area practice. The parties agreed that evidence of the practice of other employers ought to be restricted to practice in Board Area 3. But they dis­agreed on whether the evidence should be limited to ICI. projects or whether it should include the practice in all sectors. The Labourers' and the employer also submitted that Local 598 should not be allowed to lead any evidence of area practice, as it had not set out material facts of area practice in its Brief.

13. First, the Board dealt with whether area practice in Board Area 3 should include all sec­tors. The work in dispute was performed in the I.C.I. sector. The Labourers' argued that the work in dispute was generic work, and was performed essentially the same across all sectors. There was nothing, in its submission, that made I.C.I. concrete work, of the nature here, any different than non-I.C.I. concrete work. Contractors competed with each other with respect to this type of work, regardless of whether the work arose in the I.C.I. or other sectors. Focusing solely on practice in the I.C.I. sector would not, in the Labourers' submission, tell the Board the entire story of how the industry had developed with respect to work similar to the work in dispute.

14. The Board orally ruled that evidence with respect to area practice would encompass only work within the I.C.I. sector. The dispute in question arose in the I.C.I. sector, and it is only projects within that sector that can assist the Board in determining the correct assignment. The fact that the work in question was described as generic, similar across all sectors, does not cause the Board to expand the hearing to include evidence arising in other sectors. This would significantly increase the time and expense of the hearing, to little practical effect, as it is the practice in the sec­tor in question that is of assistance to the Board. See, for example, in this respect: Adam Clark Company Limited, [1992] OLRB Rep. Jan. 6.

15. Second, the Board reserved on the question of whether Local 598 would be given leave by the Board to lead evidence of area practice. We now provide our decision.

16. Practice Note #15 states clearly, in paragraph 2, that each party must file a Brief which contains a "concise statement of the issues in dispute, including a detailed description of the work in dispute, and the material facts upon which it intends to rely". In paragraph 8 of the Practice Note, the parties are put on notice that "EXCEPT WITH LEAVE OF THE BOARD, PARTIES WILL NOT BE PERMUTED TO ADDUCE EVIDENCE AT THE HEARING OF ANY MATERIAL FACT NOT DISCLOSED IN THE MATERIAL FILED WITH THE BOARD PURSUANT TO THIS PRACTICE NOTE".

17. Labourers' 1059 is the complainant, and as such, it first served its Brief upon the other parties, who then each had approximately twenty-one (21) days in which to file their replies. In its Brief, the Local 1059 identified the particular projects, locations, and dates upon which it intended to rely for its evidence of area practice. Local 598 was served with this Brief before it compiled its own. It was aware of both the requirements of the Practice Note, and the detail of the job lists filed by the complainant union. Nevertheless, the Brief filed by Local 598 did not set out a job list or list of projects upon which it claimed it would rely with respect to area practice. Instead, the Brief only provided a list of ten employers "in Board Area 3 who have traditionally assigned work similar to the work in dispute exclusively to Local 598". No projects were identified, nor locations or dates.

18. At the Pre-Hearing Conference, on December 16, 1991, the Labourers' indicated it would be objecting to the right of Local 598 to call evidence of area practice, having regard to its Brief and the lack of material facts. The Labourers now make that argument before us, that job or project lists constitute "material facts" within the meaning of the Practice Note, and that failure to plead them in the Brief means Local 598 cannot now provide them or lead evidence of them. The Labourers' argue that merely naming employers, with no identifying aspects such as location or dates of projects, does not sufficiently disclose the material facts. Local 598 has still not filed any job or project lists.

19. Further facts were agreed among the parties, for purposes of dealing with this prelimi­nary objection. On this basis, it was agreed that Local 598 had not been the local union with bar­gaining rights for cement masons in Board Area 3 until approximately September, 1988. At that time, the current business agent took over operations of the local that held bargaining rights. Until that point, no one in Local 598 would have had knowledge of the practice in Board Area 3, nor would anyone in Local 598 have known what contractors in Board Area 3 were bound to agree­ments with Local 598.

20. Based on the above facts, Local 598 argued that it had pleaded all material facts, and had met the obligation set out in Practice Note #15. Alternatively, if the Board decided that job or project lists constituted material facts and ought to have been identified in the Brief, the Board ought nevertheless to exercise its discretion and grant leave to Local 598 to lead such evidence. Local 598 based this submission on two grounds, the inability of Local 598 to have provided the information, and the practice of the Board in granting leave to lead such evidence. Local 598 argued that it could not afford the funds to acquire and maintain such information and it did not, at the relevant time~ have any mechanism in place to obtain and maintain records of the area prac­tice. Local 598 submitted that it was not in a position to provide that information. Local 598 antici­pated summonsing employers to the hearing to give evidence with respect to their practice, and to provide the information in this manner. With respect to the Board's practice in requiring job lists as part of the Briefs (if a party intends to lead evidence of past practice), and refusing leave to lead evidence if job lists had not been provided, Local 598 argued that the Board had been inconsistent in its approach to this issue. It would be unfair, in Local 598's view, to only now adopt a rigid posi­tion, and to do so would cause extreme prejudice to Local 598. Local 598 submitted that prior deci­sions of the Board supported its position that the Board had not previously required job lists.

21. In the Board's view, Practice Note #15 is clear. Parties are required to file Briefs which contain all "the material facts upon which [they intend] to rely". The Practice Note also clearly indicates that failure to file material facts will mean that parties will not be allowed to lead evi­dence of those material facts, except with leave of the Board. In Spruce Falls Power and Paper Company Limited, [1989] OLRB Rep. June 645, the Board had to deal with a similar deficiency in the pleaded material facts. The Board ruled that leave would not be granted to the complainant to lead evidence of material facts not disclosed in its materials. The Board stated:

22. The Board's rules and practice concerning jurisdictional dispute complaints, particularly Rule 60 and Practice Note #15, are designed to assist the parties in the resolution and the adjudica­tion of jurisdictional disputes. Once the complaint and any replies are filed, the Board schedules a pre-hearing conference in order to assist the parties in settling the dispute or to narrow the issues in dispute. If it is necessary to have a hearing, which is often the case, compliance with the Rules, the Practice Note and the work of the pre-hearing conference should result in more pro­ductive and shorter hearings than would otherwise be the case. In order for the procedure to produce the intended results, it is crucial for the parties to comply with the requirement to file what is required to be filed by Rule 60 and the Practice Note in a timely fashion. In this matter, each party was obliged to file any documents it intended to rely on and the statement of the area practice it asserts is relevant with its complaint or reply, as the case may be. At the pre-hearing conference, each party and the Board should be aware of the issues in dispute, and the material facts and the documents upon which each party intends to rely. The extent to which this does not occur will result in the failure to meet the objectives the procedure is intended to achieve.

23. Prior to the amended Practice Note, it was not uncommon for parties to fail to meet the filing requirements of Rule 60 and the previous Practice Note (see, for example Marine-Hamlyn Joint Venture, [1988] OLRB Rep. Feb. 158). The revision of Practice Note #15, which adopts proce­dures similar to those contained in the Practice Notes on first collective agreement arbitration, should indicate to the community that the Board is serious in its efforts to adopt and follow pro­cedures which will assist in the resolution and adjudication of jurisdictional disputes.

24. Paragraph 8 of Practice Note #15 provides that parties will not be permitted to adduce evi­dence at the hearing of any material fact not disclosed in the material filed with the Board, except with leave of the Board. The wording of the paragraph indicates that a party who fails to comply with the Rules and the Practice Note will not be permitted to introduce certain evidence unless that party can satisfy the Board that the circumstances warrant granting leave. Although the Board may consider any factors it considers relevant, particular significance will be given to the reason why a party has failed to comply with the Rules and Practice Note.

25. In reviewing the circumstances here, the Board notes that it is the complainant, the party which can choose the timing for filing the complaint, which has failed to comply with Rule 60 and Practice Note #15 as well as its undertaking concerning area practice. In its complaint, Local 2995 did not indicate it intended to rely on area practice and it failed to comply with its undertaking concerning area practice. Local 2995 only advised the parties with respect to its intentions with respect to area practice a short time before the first day of hearing on the merits. With respect to this failure, Local 2995 did not provide us with any satisfactory explanation for why it did not comply with Rule 60 and Practice Note #15. Similarly, no satisfactory explana­tion was given by the Local 2995 for failing to include C-i and C-2 with its complaint. The fact that Local 2995's representative did not check the Local's general correspondence and discover C-i and C-2 until just prior to the pre-hearing conference does not constitute a satisfactory explanation. The evidence of area practice and C-1 and C-2 were in the possession of Local 2995 when if filed its complaint and the failure to comply with Rule 60 and Practice Note #15 is attributable only to Local 2995. In exercising its discretion, the Board was satisfied, given all of the circumstances and particularly those referred to above, that it would have been inappropri­ate to grant Local 2995 leave to introduce C-1 and C-2 or any evidence of area practice.

26. We agree with those comments. We would add that since the Practice Note was amended, in August, 1988, a significant number of jurisdictional complaints have been filed with the Board. The Board's experience has reinforced the merit of requiring such pre-hearing disclo­sure and of not giving leave, without very good reason, to lead evidence of material facts not prop­erly disclosed. A far greater number of these complaints now settle or take significantly less time to litigate because of these requirements.

27. We do not agree that the Board's practice has led the community, and the parties here, to believe that parties need not file job lists in their Briefs. There is no decision that supports Local 598's contention in this respect. It relied upon the decision in Acco Canadian Material Handling, (unreported, Board File #2841-88-JD, July 18, 1989). But that decision arose in a different con­text, where all parties were directed to file job lists. In Acco, there was a dispute over the descrip­tion of the work in dispute, and after the Board ruled on that issue, the Board indicated which past practice would be relevant (that is, only with respect to two types of conveyors). The Board there concluded that its ruling necessitated providing further opportunity to all parties to file further job lists. The Board there identified the information required for each job. None of the same type of information has been provided here by Local 598. (It is worth noting that Acco where adequate job lists had not been filed by anyone in their Briefs, apparently took approximately 45 hearing days to litigate.)

28. Counsel for Local 598 also relied upon the decision of the Board in Vic West Steel Limited, (unreported, Board File #0013-90-JD, November 28, 1991), an ongoing complaint. But that decision does not support Local 598's position either. The Board stated:

29. Although the Ontario Sheet Metal workers' and Roofers' Conference and Sheet Metal Work­ers International Union, Local 539 (the "Sheet Metal Workers") are the complainants herein, the reason this complaint has been brought is that the United Brotherhood of Carpenters and Joiners of America, Local 1256 (the "Carpenters"), a respondent herein, filed a grievance against the respondent, Vic West Steel ("Vic West") complaining of the assignment to members of the Sheet Metal Workers by Vic West of work in connection with the installation of siding at a LOEB IGA Store and other buildings in a "retail strip" located on Exmouth Street in Sarnia. The Sheet Metal Workers description of the work in dispute is broad enough to encompass work in connection with the installation of all sheet metal siding at the job site in question. However, both in its brief and at the hearing on May 29, 1991, the Carpenters conceded (and were subse­quently not permitted to resile from conceding) that the work in connection with the off-loading, handling, distribution, site transport, rigging, erection, installation and application of siding fastened to metal had, in this case and for purposes of this complaint, been properly assigned to members of the Sheet Metal Workers. In other words, the Carpenters disputed the assignment of, or claim, in this proceeding, only that work in connection with the off-loading, handling, distribution, site transport, rigging, erection, installation and application of siding fas­tened to wood. Therefore, that is, as the Board pointed in its May 29, 1991 decision herein, the work in dispute in this case.

30. That being the case, it was not obvious to the Board why it would be necessary, having regard to the Carpenters concession, to hear evidence of the practice regarding the assignment of work in connection with the installation of siding onto anything other than wood (although the Board did appreciate that evidence with respect to jobs on which siding was applied to or installed on both wood and some other sub-structure could be of assistance). The Board therefore inter­rupted the proceedings to explore the need for such evidence with the view to expedite the pro­ceedings.

31. From what followed, it emerged that the positions of the parties are such that it will be neces­sary for the Board to hear evidence regarding the practice of assigning work in connection with the installation of siding on all sub-structures. However, it also became apparent that there might be a more expeditious way to do it than through a parade of witnesses. The Board there­fore directed the parties to provide the following information with respect to all job sites listed in their materials with respect to which they had called, or intended to call, evidence:

[emphasis added]

a) the date(s) of the job;

b) the location of the job;

c) the names of all contractors involved with the contracts for and application of siding on the job together with an indication of which of the two unions involved in this case each such contractor had a collective bargaining rela­tionship with at the time;

d) the square footage of the siding installed;

e) the man-hours the job took to complete;

f) the sub-structure(s) onto which the siding was applied or installed;

g) the trade to which the siding work was assigned and, if different, which trade did the work.

Further, the Carpenters were directed to particularize the factual basis for its "Sarnia Construc­tion Association" argument as mapped out at the November 26, 1991 hearing.

5. It appeared that all of this information was, or should be, readily available to the parties. Indeed, it was the very information with respect to which various witnesses had already been examined.

6. The Board in Vic West was not giving leave to lead evidence of jobs not identified in the Briefs. Rather, it ordered that additional information be provided with respect to the "job sites listed in their materials", in order to reduce the length, expense, and delay, in the hearing.

7. Neither of these decisions therefore, can be said to establish any reasonable expectation in the community that the Board will not enforce Practice Note #15. The decisions on point are clear and unequivocal, and in contrast to the position of Local 598. The Board in Spruce Falls (supra) demonstrated no uncertainty or ambivalence in its decision. It indicated that the Practice Note means what it says.

8. The Board recently issued another decision confirming this approach. In E. S. Fox Ltd. [1992] OLRB Rep. Feb. 145, the Board wrote:

9. In paragraph 17 of its brief, the complainant pleads that:

It is submitted that area and industry practice support the assignment of the work in dispute to the Millwrights. In particular, work of a similar nature was assigned to the Millwrights.

Was the work referred to the same or merely similar? If it was "similar", how was it different, and how was it the same from the work in dispute in this case? What are the particulars of the area and industry practice relied upon by the complainant? That is, what was the work and the nature of the project where it was done? When was it done? Where was it done? Who was the employer which assigned the work? Was the work done on a sub-contract? With which trade union(s) did all of the companies involved have collective agreements?

7. In the brief submitted by the respondents Sheet Metal Workers International Association, Local 269 and Ontario Sheet Metal Workers' & Roofers' Conference (the "Sheet Metal Work­ers"), they plead at paragraph 10 that:

It is the practice of the Respondent E. S. Fox Ltd. to assign the Work in Dispute to the Sheet Metal Workers. On at least two prior occasions, the installation of a furnace at Alcan Canada Ltd. has been performed by Sheet Metal Workers.

In what way was the work involved in the "installation of a furnace of Alcan Canada Ltd." like the Work in Dispute herein? When and where was the work done? Who assigned the work? With which trade union(s) that the assigner of work have a collective agreement?

8. In paragraphs 11 and 12, the Sheet Metal Workers plead that:

The Work in Dispute at the Project should be performed by employees experienced in doing work of this nature. Since Sheet Metal Workers members have always been associated with the Work in Dispute and other similar work, they are more qualified to perform the same than are members of Local 1410.

Throughout the province of Ontario, including OLRB Geographic Area #29, it is the well established practice of employers bound to the Sheet Metal Workers' Collective Agreement to assign the Work in Dispute to members of the Sheet Metal Workers. They have the skills, ability, experience and qualifications to perform such work in a competent and efficient manner.

What "similar" work is of relevance? What training, skills, ability, experience or qualifications do members of the Sheet Metal Workers have which favours the assignment of the Work in Dis­pute herein to them?.

9. In paragraph 15, the Sheet Metal Workers plead:

It is the practice of employers bound to the Sheet Metal Workers' Collective Agreement throughout the province of Ontario, including Board Area #29, to use Sheet Metal Workers to perform the Work in Dispute. As such, the Millwrights demand for the work is disruptive of industrial relations stability in the province.

What are the particulars of the practice being pleaded? Is the practice relied upon by employers bound to a Sheet Metal Workers' Collective Agreement as well as to a collective agreement with the complainant? In what way is the complainant's demand for the Work in Dispute disruptive of industrial relations stability?

10. The respondent employer's brief is similarly lacking in particularity, especially in paragraphs 3, 5, 6 and 7.

11. The above is intended to be illustrative rather than exhaustive. Further, it illustrates not only the deficiencies in this instance but also a general tendency by parties to submit "boiler plate" briefs in complaints with respect to the assignment of work. This approach is both counter pro­ductive and not in keeping with either the intent or letter of Board Practice Note #15. It not only retards and undermines the pre-hearing process, but also tends to prolong and complicate unnecessarily the hearing of such a complaint.

12. In summary, we are satisfied that the practice of the Board has been clear. While it may be that certain panels have not exercised their discretion identically (nor would one expect them to), at best it can be said that parties take a significant risk when they fail to file properly particularized Briefs.

13. There is no doubt that the material facts with respect to area or employer past practice include, at the very least, sufficient information by which the parties, and the Board, can identify the projects upon which a party seeks to rely.

14. Simply listing the names of employers does not provide sufficient information to consti­tute the "material facts". The parties are unable to properly investigate what occurred at particular projects, and they cannot attend at the Pre-Hearing Conference with information as to the practice of particular employers. They will not be aware of the particulars being alleged as to the past prac­tice. The effectiveness of the Pre-Hearing Conference lies in its ability to narrow the issues or to settle the matter. Past practice is of paramount importance in determining whether unions will fight over particular assignments, and in determining the correct assignment in any particular cir­cumstance. If parties do not particularize the practice upon which they intend to rely, the entire process is undermined.

15. We are therefore satisfied that Local 598 was required to file job lists, as part of the requirement to disclose the material facts upon which it intends to rely, and it neglected to do so. We see no reason in the circumstances before us to give leave to Local 598 to either file those job lists now, or to be allowed to lead any evidence with respect to area practice. Local 598 had ample opportunity to file those lists in its Brief, and it has no reasonable excuse for its failure to do so. The fact that Local 598 was not the bargaining agent prior to September, 1988 is not a reasonable excuse for its failure to file the material facts in the instant application. Nor is the financial state of Local 598 a reason to relieve it from the obligation to file material facts. Pursuing expensive, often protracted, litigation is not the means to discover what the relevant practice has been. Local 598 will not be allowed to lead any evidence of area practice.

16. We turn next to the question of employer practice. Neither the Labourers' nor Ellis Don seek to lead evidence of employer practice outside Board Area 3. They both argue that the work in question is basic work, done on many occasions by the employer, throughout the province. It would be too expensive, they submit, in terms of litigation costs, and would cause too much of a delay, for the Board to hear evidence of the employer's practice from around the province. Fur­ther, it would be of little practical assistance to hear evidence of employer practice outside Board Area 3, when there exists such an extensive practice within that Board Area. They argue that only evidence of practice in Board Area 3 ought to be allowed. Local 598 argues that existence of employer practice throughout the province is relevant and ought to be entertained.

17. The Board reserved on this issue at the hearing. We conclude that evidence of employer practice (provided it has been properly pleaded) throughout the province will be allowed. The par­ties do not agree on the material facts with respect to the practice of Ellis-Don in Board Area 3. This is I.C.I. sector work, work performed in a province-wide sector and scheme, where there can be province-wide practices. At the end of the day, the Board may well conclude that evidence of practice outside Board Area 3 is of little assistance. For example, if the practice of Ellis Don within Board Area 3 is to consistently or predominantly use members of one trade, it may be that Ellis-Don's practice in other parts of the province is largely irrelevant. However, we are not prepared to preclude parties from relying on that evidence.

18. Evidence of employer practice must still have been properly pleaded in the Briefs. In paragraph 17 of its Brief, Local 598 refers to employer practice. The Brief notes that it is the prac­tice of Ellis-Don when performing the work in dispute to directly assign the work to members of Local 598. It states that "Ellis-Don also assigns the work in dispute exclusively to members of Local 598 in Toronto, Kitchener, Oshawa, Hamilton, Barrie and surrounding areas". At Tab 13 of its Brief, Local 598 lists job sites together with the location of the particular job, to the extent of identifying the name of the site (e.g. "I.B.M. Phase I", "Le Hotel") and the city or town in which the job site was found.

19. We are concerned that the information provided by Local 598 is not sufficient to enable the other parties to sufficiently identify the projects in question, in order to investigate what took place on those projects, and in order to come prepared to the Pre-Hearing Conference and the hearing. However, there was no suggestion that the detail provided by Local 598 was insufficient to allow the other parties to properly identify the projects in question, nor is it apparent how the other parties would be prejudiced by the lack of detail with respect to these projects. We are pre­pared therefore, to give Local 598 the benefit of the doubt. Local 598 will be allowed to lead evi­dence of employer practice with respect to the job sites listed in its Brief.

20. The last preliminary issue was the question of whether to exclude evidence of employer practice of employers who have bargaining relationships with the Labourers' for cement finishers. This was the issue referred to above in paragraph 4. Local 598 submitted that this case really raised questions of overlapping bargaining rights, rather than overlapping work jurisdictions. In its Brief, at paragraph 14, it submitted that the Board ought "to confine its inquiry to employers who have a collective bargaining relationship with Local 598. Only then will evidence that the work in dispute is assigned to members of Local 1059 in preference to members of Local 598 assist the Board in determining whether the area practice is to assign the work in dispute to labourers over cement masons or vice versa". At the hearing, Local 598 argued that it was unfair for the Labourers' to be able to rely upon the practice of contractors with bargaining relationships with the Labourers' with respect to cement finishers, since the real contest was between construction labourers (where the Labourers' represent a bargaining unit described as "construction labourers"), and cement masons. Local 598 referred to two decisions in support of its argument, Runnymede Development Corporation, [1987] OLRB Rep. Oct. 1305, and Doug Chalmers Construction Limited, [1990] OLRB Rep. July 788. It submitted that the only employers that ought to be considered by the Board ought to be those which had bargaining rights with the Cement Masons, or with them and the Labourers', but excluding those employers which had agreements with the Labourers' covering cement finishers.

21. The Board orally ruled that it would not restrict the evidence in the fashion requested. The Board was being asked, at the beginning of the case, to limit the evidence of area practice of employers based upon the bargaining relationships and collective agreements those employers had with the two particular unions, and more particularly, based upon whether the Labourers' repre­sented "cement finishers" on a particular project. It was not appropriate to do so. The parties can lead evidence of the practice of employers in Board Area 3 who have used members of the Labour­ers' or Local 598 to perform work similar to the work in dispute.

22. This matter need now be rescheduled. During the Pre-Hearing Conference, the Board set for hearing, on the parties' agreement, April 27, May 19, 20, 21, 25, 26, 27, June 24, 25, July 6, 7, 8, 14 and 15, 1992. Shortly before April 27, that date had to be adjourned, as counsel was unavailable at the last moment, for personal reasons. On May 5, 1992, Local 598 wrote to the Board indicating that the parties had agreed to adjourn May 25, 26, 27, June 24, 25, July 6, 7, 8, 14 and 15, 1992, leaving only May 19, 20 and 21 for the hearing, which the parties had agreed would be used only to address preliminary issues. Those preliminary issues have all been addressed above. It took only one day of hearing to hear them all, resulting in May 20 and 21 being can­celled.

23. In the result (excluding April 27, which cancellation was unforeseen, unavoidable and understandable) there were 13 days set by the Board for hearing, but the parties on consent adjourned 12 of them. In these circumstances, we are not prepared to tie up further scheduling dates, at cost to other parties and the Board, to accommodate the convenience of the parties.

24. Accordingly, we do not propose to set further hearing dates. This matter will be adjourned until August 1, 1992. If the Board does not receive by that date a request that this mat­ter be relisted for hearing, this application will be terminated. If the Board does receive such a request, the party making the request is to make the request in writing and at the same time copy the other parties. All parties will have 7 days from the date the request is received to notify the Board, in writing, of their available dates for hearing. There will be no consultation with the par­ties with respect to available dates. The letters should indicate the total number of days each party feels will be needed for the presentation of their own evidence, and their submissions. The Board will then set dates for hearing.

25. We note that the parties are agreed (paragraph 9, Pre-Hearing Conference Memoran­dum) that Local 1059 will proceed first with its evidence, followed by Ellis-Don, and then Local 598. The parties are to be prepared to lead their evidence and make submissions at the resumed hearing.

26. Any future adjournment requests must be received by the Board no later than two weeks prior to the hearing dates in question. Failing this, the parties will have to attend at the hearing to speak to any adjournment request.

27. This matter is referred to the Registrar.