Ontario Sheet Metal Workers' and Roofers' Conference v. Vic West Steel, 1993 CanLII 7827

[1993] OLRB Rep. March 256

0013-90-JD Ontario Sheet Metal Workers' and Roofers' Conference and Sheet Metal Workers International Association, Local 539, Complainants v. Vic West Steel, United Brotherhood of Carpenters and Joiners of America, Local 1256, Responding Parties v. Ontario Sheet Metal and Air Handling Group, Intervenor

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members G. O. Shamanski and J. Redshaw.

APPEARANCES: S. B. D. Wahl, J. Raso, G. Ward and L. Dicker for the Ontario Sheet Metal Workers' and Roofers' Conference and Sheet Metal Workers' International Association; T. K. Billings, Fred Heerema and M. Bolton for Vic West Steel; Kevin Banks (on May 22, 1991), N. L. Jesin and Ron Carlton for United Brotherhood of Carpenters and Joiners of America, Local 1256; Fred Heerema, T. K. Billings and B. Gardner for the Ontario Sheet Metal and Air Handling Group.

DECISION OF THE BOARD; March 23, 1993

I - INTRODUCTION

1. This complaint concerning work assignment was made and litigated under section 93 of the Labour Relations Act as it was prior to January 1, 1993. It was filed on April 2, 1990 by the Ontario Sheet Metal Workers and Roofers Conference, and the Sheet Metal Workers Interna­tional Association, Local 539 (hereinafter jointly referred to as the "Sheet Metal Workers") in response to a grievance by the United Brotherhood of Carpenters and Joiners of America, Local 1256 (the "Carpenters") with respect to certain work performed by members of the Sheet Metal Workers for Vic West Steel ("Vic West"). In effect, the Carpenters grieved that the work in ques­tion ought to have been assigned to its members.

2. The complaint meandered through an excruciating pre-hearing and hearing process which did not conclude until some two years and eight months after it was filed. The course it fol­lowed was a difficult and sometimes frustrating one for the hearing panel, and we suspect for the parties as well. In many ways, it stands as a testament to much of what was wrong with the jurisdic­tional dispute process as it was prior to January 1, 1993.

3. In the course of the hearing of this complaint, the Board was required to make a num­ber of significant rulings relating to the conduct of the proceedings. Normally, we would recount these first. However, in this case, we find it appropriate to deal first with the merits and the dispo­sition of the complaint and then set out those rulings.

II - Merits and Disposition

4. The work in dispute in this complaint is the work in connection with the off-loading, handling, distribution, site transport, rigging, erection and installation or application of sheet metal siding at the Loeb IGA store on Exmouth Street in Sarnia.

5. As a result of a concession by the Carpenters earlier on in the proceedings, the litigation of the complaint was more narrowly focused; namely, on the work in connection with the off-loading, handling, distribution, site transport, rigging, erection and installation or application of sheet metal siding onto wood at the Loeb IGA store on Exmouth Street in Sarnia.

6. In complaints concerning work assignments, the Board generally considers the factors first set out in Canada Millwrights Ltd., [1967] OLRB Rep. May 195. These factors have since been summarized in the jurisprudence as follows:

• collective bargaining relationships

• skill and training

• economy and efficiency

• employer practice and preference

• area practice.

As the decided cases demonstrate, this is not an exhaustive list. It is neither possible to make an exhaustive list, nor appropriate to mechanically apply some formula or list of factors to a jurisdic­tional dispute complaint. Instead, the Board considers whatever factors are relevant to the particu­lar dispute before it, which may include some or all of the factors listed above, or others which are not. Further, some of the five factors listed above will be of little assistance in any given case. In recent years, for example, the jurisdictions asserted by various trade unions in their collective agreements (or constitutions) have become so broad that little weight can be given to them. Because of this, the historical development of the division of labour in the construction industry on a craft or trade basis, and the increasing overlap between trades and the jurisdictions which they assert, the Board has recognized that collective bargaining relationships cannot, by themselves, be determinative of a jurisdictional dispute complaint. Consequently, while a trade union which has no collective agreement with the employer which assigned the work in dispute may have a difficult time in having the assignment altered, a trade union which has a collective agreement with the employer which made the assignment will not necessarily be successful in fending off a claim for such work by a trade union which does not a collective bargaining relationship with that employer (see, for example, Brunswick Drywall Limited, [1982] OLRB Rep. Aug. 1143, Pigott Construction Limited, [1992] OLRB Rep. June 748 ("Pigott IF'). On the other hand, a single factor may be det­erminative of a jurisdictional dispute complaint. Work jurisdiction agreements provide one exam­ple (see Pigott Construction Limited, supra). In some cases, area practice will be determinative (Ilena Construction Company Limited, [1974] OLRB Rep. Nov. 775; Acco Canadian Material Handling, [19921 OLRB Rep. May 537), although in other cases the Board has awarded the work in dispute to the trade union which that factor did not favour (see, for example, Simcoe Mechanical Contracting Ltd., [1982] OLRB Rep. Sept. 1352; K-Line Maintenance & Construction Limited, [1979] OLRB Rep. Dec. 1185). In recent years, area practice has become a dominant factor in terms of the time and energy devoted to it in jurisdictional dispute proceedings. This complaint was no exception. The parties devoted the bulk of their time during the hearing to exploring the area practice relating to the installation of sheet metal siding in Lambton County.

7. It seems counter intuitive to suggest that someone other than a sheet metal worker should install sheet metal siding. On its face, such work is at the very core of the Sheet Metal Workers' trade jurisdiction. In our view, it would take a clear trade agreement, or compelling economy and efficiency, or evidence of a well defined and virtually invariable area practice to cause the Board to conclude that the installation of sheet metal siding should be assigned to other than Sheet Metal Workers.

8. In this case, there is nothing, either in the traditional factors considered by the Board or otherwise, which favours an assignment of the work in dispute to members of the Carpenters.

9. The jurisdictional claims in the applicable collective agreements and in the two trade unions' constitutions favour neither one. However, the Sheet Metal Workers' inherent jurisdic­tional claim is the stronger of the two. In these circumstances, the nature of the material being installed is much more important than the base onto which it is installed.

10. With the exception of one anomalous assignment, Vic West's invariable practice has been to assign all work associated with the installation of sheet metal siding, regardless of the base it is applied to, to members of the Sheet Metal Workers. This is so whether or not the practice of Lorlea Steel Limited (acquired by Vic West in September 1987 and which the Carpenters submit­ted should not be considered as part of Vic West's practice herein) is included as part of Vic West's practice. This practice also demonstrates the employers preference in this case.

11. The evidence suggests that at the basic level, members of both the Carpenters and the Sheet Metal Workers have the necessary skill and ability to perform the work in dispute. To the extent that the requisite training is a normal part of the training of the members of the Sheet Metal Workers, while members of the Carpenters appear to require some special additional training, this factor very slightly favours the Sheet Metal Workers.

12. Although the estimates varied from roughly 2% to 15%, the evidence suggests that roughly 10% or less of the sheet metal siding installed in Lambton County is applied onto wood. Further, the evidence suggests that wood is rarely, if ever, the only base. Generally, as on the job in question herein, a smaller percentage of the base is wood with the dominant percentage being some other material, generally steel (in this case 30% of the sheet metal siding installed onto the Loeb IGA store was applied to wood and the remaining 70% was applied to steel). We are satis­fied that it would make little practical sense to require an employer to either change the assign­ment according to the base to which the sheet metal siding is being applied, or to assign it to a com­posite crew consisting of variable numbers of sheet metal workers' and carpenters' depending on the percentages of different kinds of bases. In our view, the factor of economy and efficiency favours the jurisdictional claim of the Sheet Metal Workers.

13. The area practice evidence before the Board indicates that members of the Sheet Metal Workers and members of the Carpenters have both performed the work in dispute in Lambton County, generally in accordance with particular predilection of the employer assigning the work. We note that even if the Carpenters' area practice evidence which the Board declined to receive

(see paragraphs ³o~⁵R^8~ infra) had been received, it would have done nothing more then confirm this. The evidence does not substantiate the Carpenters assertion that there was a Lambton County practice pursuant to which members of the Sheet Metal Workers install sheet metal siding onto steel and members of the Carpenters install it onto wood. Though such a division of work seems to be given much lip service, particularly at the Sarnia Construction Association, it does not in fact exist, either at or through the Sarnia Construction Association, or otherwise. Indeed, it seems that employers which profess that there is such a division of work generally ignore both this alleged "practice" and any attempts by the Sarnia Construction Association to have it applied. On the evidence before the Board, there is no readily definable area practice with respect to the work in dis­pute. Perhaps that is the crux of the problem.

14. In the result, there is nothing before the Board which suggests that the work in dispute herein should have been assigned to members of the Carpenters, and we see no reason to disturb the assignment made by Vic West in that respect.

15. In argument, counsel for the Sheet Metal Workers submitted that the Board should grant all of the relief sought by the Sheet Metal Workers in their Brief. The Carpenters submitted, in response to this argument (its primary submission being that the work in dispute was its work) that any Board order or decision should be limited to the work in dispute as litigated.

16. In their Brief, the Sheet Metal Workers requested the following orders:

(a) an Order confirming the assignment by Vic West Steel of:

All work in connection with the offloading, handling, distribution, site transport, rigging and installation of sheet metal siding at the Loeb IGA Store, Exmouth Street, Sarnia, Ontario,

to members of the Ontario Sheet Metal Workers and Roofers Conference and Sheet Metal Workers International Association, Local 539.

(b) an Order that all general contractors, including but not limited to, Aries Construction bound by the Carpenters' Provincial Agreement may properly and lawfully subcon­tract,

All work in connection with the offloading, handling, distribution, site transport, rigging and installation of sheet metal siding, throughout the County of Lambton (O.L.R.B. Geographic Area 2) to subcontractors who are not bound by the Carpenters' Provincial Agreement and in particular, to subcontractors bound by the Sheet Metal Workers' Provincial Agree­ment.

(c) an Order that contractors bound by the Sheet Metal Workers Provincial Agreement assign and person,

all work in connection with offloading, handling, distribution, site trans­port, rigging and installation of sheet metal siding,

throughout the County of Lambton (O.L.R.B. Geographic Area 2) with members of the Ontario Sheet Metal Workers' and Roofers' Conference and Sheet Metal Work­ers International Association, Local 539.

17. In their Briefs and throughout this proceeding, the Sheet Metal Workers and Vic West agreed that the work in dispute herein is work in connection with the off-loading, handling, distri­bution, site transport, rigging and installation (or application) of sheet metal siding at the Loeb IGA Store on Exmouth Street in Sarnia. In its Brief, the Carpenters described the work in dispute as:

“…..all work in connection with the off-loading, handling, distribution, site transport, rigging, erection, installation and application of siding fastened to wood...".

18. Both (implicitly) in its Brief, and subsequently (explicitly) at the hearing on May 22,

1991 (see paragraph

25, infra), the Carpenters conceded that the work in connection with the installation of sheet metal siding onto a base other than wood (in this case steel) at the Loeb IGA store on Exmouth Street in Sarnia had been properly assigned by Vic West to members of the Sheet Metal Workers.

19. While the actual litigation herein was limited to work in connection with the installation of sheet metal siding onto wood, the complaint as a whole was not so limited. We note that the Carpenters did try to "clarify" its concession by stating that it did not concede jurisdiction with respect to sheet metal siding fastened to a base other than wood other than for purposes of this complaint. We are also aware that there are other jurisdictional dispute complaints concerning the installation of sheet metal siding presently before the Board.

20. In that context, and having regard to the evidence and representations of the parties, the Board finds it appropriate to confirm the assignment by Vic West Steel of all the work with respect to which this complaint was made; namely, all work in connection with the off-loading, dis­tribution, site transport, rigging and installation of sheet metal siding, regardless of the base to which the siding was applied, at the Loeb IGA Store, Exmouth Street, Sarnia, Ontario, to mem­bers of the Sheet Metal Workers.

21. Further, the Board finds it appropriate to declare that Vic West Steel did not breach the Carpenters Provincial Agreement to which it is bound by assigning the said work to members of the Sheet Metal Workers, and further that any such future assignment by Vic West Steel in Lamb-ton County will not constitute a breach of the Carpenters Provincial Agreement either.

22. This decision shall be binding on the parties for all other jobs in existence on the date hereof or undertaken in the future in Board Area No. 2 (Lambton County).

23. In our view, no other declarations, directions or orders are appropriate.

24. We turn now to a review of various determinations made in the course of this proceed­ing.

III - Defining the Work in Dispute and Focusing the Litigation

25. At the hearing (not a pre-hearing as it was referred to in some of the subsequent corre­spondence) held on May 22, 1991, the Board ruled on a number of preliminary matters. In a writ­ten decision issued on May 29, 1991, the Board set out its rulings in that respect as follows:

26. At the hearing, the United Brotherhood of Carpenters and Joiners of America, Local 1256 (the "Carpenters") conceded that the work in connection with the off-loading, handling, distri­bution, site transport, rigging, erection, installation and application of siding fastened to metal was properly assigned by the respondent Vic West Steel to members of the complainant. The Carpenters claim only that work in connection with the off-loading, handling, distribution, site transport, rigging, erection, installation and application of siding fastened to wood should have been assigned to its members. Consequently, this complaint concerns only that latter work.

27. Further, having regard to the representations and agreements of the parties at the hearing, the Board determined that:

a) subject to argument with respect to the issue of damages (if any), the project to which this complaint relates includes the Loeb IGA store and the other buildings in the "retail strip" that that store is located in on Exmouth Street in Sarnia where the work in dispute herein was performed;

b) without prejudice to the Carpenters right to argue, at the conclusion of the evidence, that evidence with respect to the past practice of Lorlea Steels Limited is irrelevant or should be given no weight, the evidence regarding the practice of assigning work of Westeel-Rosco, Jannock Limited, Victoria Metal Corporation, and Lorlea Steels Limited, as well as that of the Vic West Steel, will be admissible with respect to the issue of employer prac­tice;

c) the scope of the evidence admissible with respect to the issue of employer practice will be all sectors of the construction industry in the Province of Ontario;

d) evidence with respect to the issue of area practice will be limited to Board Area 2, but not limited by sector (i.e. evidence with respect to a]l sectors of the construction industry in Board Area 2 will be admissible); and

e) the respondent, Vic West Steel, and the intervener, Ontario Sheet Metal and Air Handling Group, will present their evidence first.

26. On August 26, 1991, the first day of hearing scheduled with respect to the actual merits of the complaint, the Carpenters sought reconsideration of paragraph 2 of the May 29, 1991 deci­sion as aforesaid. The Carpenters submitted that it had not conceded that all work in connection with the off-loading, handling, distribution, site transport, rigging, erection, installation and appli­cation of sheet metal siding fastened to metal had been properly assigned to members of the Sheet Metal Workers.

27. The Carpenters' submission was inaccurate. The Carpenters had quite clearly and spe­cifically stated that its claim for work in the grievance which gave rise to this complaint was restricted to work in connection with the installation of sheet metal siding onto wood. The Board's decision in this respect was completely accurate and we saw no reason to permit the Carpenters to resile from its earlier position. The Carpenters' request for reconsideration was therefore dismissed (in an oral ruling).

28. We note that Ron Carlton, Business Manager of the Carpenters for Lambton County, subsequently testified and specifically stated that the Carpenters Union will refer its members to perform such work if an employer chooses to perform it with carpenters, but that the Carpenters Union does not claim the application of sheet metal siding onto metal as part of its trade jurisdic­tion in Lambton County.

29. In the result, the work which was the subject of this complaint is all work in connection with the off-loading, handling, distribution, site transport, rigging erection, installation and appli­cation of all sheet metal siding at the Loeb IGA store on Exmouth Street in Sarnia, but the work actually remaining in dispute after the Carpenters' concession was all such work in connection with sheet metal siding installed onto wood at that job site. Consequently it is the latter upon which the litigation herein focused.

IV - Evidentiary Rulings

(a) Area Practice Evidence

30. At the November 26, 1991 hearing, the Board made certain (oral) directions with respect to the area practice materials filed by the parties and the evidence which they proposed to lead in that respect. The Board reiterated its directions in a written decision, dated November 28, 1991. In the course of that decision, the Board wrote that:

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:

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.

31. Although it took them longer than expected, the parties did exchange and file docu­ments which reflected the results of their efforts to comply with the Board's these "job list" direc­tions.

32. The Sheet Metal Workers were not satisfied with the Carpenters' filings. When the hearing resumed on March 2,1992, the Sheet Metal Workers submitted that the Carpenters' job list contained references to work which had not been referred to in the materials filed previously with the Board, and that the facts pleaded in it lacked the requisite particularity in any event. The Sheet Metal Workers objected to the Carpenters calling evidence with respect to jobs which were either "new" or not properly particularized. Vic West and the Ontario Sheet Metal and Air Han­dling Group (which though respondent and intervenor respectively were represented at the hearing by the same counsel and are allied in interest with the Sheet Metal Workers in this proceeding) supported the Sheet Metal Workers' position.

33. The Carpenters argued that it had performed the best investigation it could and that it had been unable to provide further particulars because the contractors it had contacted had been uncooperative. The Carpenters also submitted that it was too onerous to require a party to provide area practice particulars in the form of a job list within three-week window stipulated by the then Practice Note No. 15. The Carpenters submitted that there was nothing nothing in the Practice Note which precluded it from presenting evidence with respect to work which had not been previously referred to in its filings.

34. Upon hearing the representations of the parties with respect to this Sheet Metal Work­ers' objection, the Board ruled (orally) that it would not receive evidence of area practice to which there was no reference in the materials filed prior to November 26, 1991. Notwithstanding that the job list filed by the Carpenters in response to the Board's November 1991 directions fell far short of providing the particulars contemplated, the Board declined to rule, at that time, that the Carpen­ters had failed to make reasonable efforts to obtain the requisite particulars. Because we wanted to get on with the hearing and avoid delaying the matter to make rulings which might ultimately prove to be unnecessary, the Board ruled that the Carpenters could seek to call evidence with respect to items on its job list which were not "new" (and therefore excluded by our ruling in that respect), subject to the right of the other parties to make specific objections which could be dealt when made.

35. Unfortunately, this approach proved to be unworkable. On September 16, 1992, the Board was required to revisit the issue. The Sheet Metal Workers raised an objection in the course of the testimony of the Carpenters' first witness, and it was apparent from the way in which the matter had unfolded in the interim, that it was necessary and appropriate to deal with this area practice evidentiary issue in a comprehensive way.

36. In essence, the Sheet Metal Workers, again supported by Vic West and the intervenor, renewed their March 2, 1992 objection; that is, that the job list provided by the Carpenters in response to the Board's November 26, 1991 directions (which job list had been marked as Exhibit 22) was "new" in that it did not relate to materials originally filed or, in the alternative, that it was inadequately particularized. The Sheet Metal Workers, submitted that the Carpenters should not be permitted to call evidence with respect to anything on this job list, or with respect to anything in its original materials which had not been properly particularized either pursuant to the Board November 1991 directions or otherwise. The Carpenters argued that with the exception of the Sandrin Bros. jobs shown on its Exhibit 22 job list, neither the Board's March 2, 1992 ruling nor anything else precluded it from calling evidence with respect to the contents of that job list, or with respect to its original area practice filings. Counsel submitted that he and his office had, on behalf of the Carpenters, made reasonable efforts to obtain the requisite particulars but had been unable to do so, that the job list contained sufficient particulars to permit the parties to identify and inves­tigate the area practice the Carpenters asserted and sought to rely on, and that there was no preju­dice to any party as a result of any deficiency in that respect.

37. Although the Board considered Practice Note 15, the March 2, 1992 decision was not merely a question of applying that Practice direction. Practice Note No. 15 was merely a starting point. It requires every party to a jurisdictional dispute complaint to the Board to file certain speci­fied documents and all documents upon which they rely, and "... 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 it intends to rely." These pleading requirements, and the pre-hearing confer­ence process, are designed to compel the parties to identify and properly address themselves to the matters and issues between them before any hearing, so that a rational attempt can be made to set­tle the matter, or failing settlement, to clarify and narrow the issues in order to facilitate an orderly and expeditious hearing of the complaint. If parties make a meaningful effort to comply with the Board's rules, practice directions and case specific directions (if any), a jurisdictional dispute com­plaint will be resolved more fairly and expeditiously than it they do not.

38. This complaint was the subject of two pre-hearing conferences. The pre-hearing mem­oranda in that respect revealed that the pre-hearing process accomplished very little. However, the second memorandum, dated August 1, 1991 (almost a year and a half after the complaint was filed) indicates that on consent of the parties, the Board directed them to "... exchange with each other, and deliver to the Board, by the morning of August 26, 1991, a statement indicating which of the facts pleaded by the other parties they agree with, and which of the facts pleaded by the other parties they do not agree with, explaining why they might disagree with any of those asser­tions."

39. The parties did exchange statements. Indeed, the Carpenters took the opportunity to file a "supplementary" pre-hearing Brief. In it, the Carpenters stated that its previous concession that the installation of sheet metal siding onto metal had been properly assigned to members of the Sheet Metal Workers in this case was not a general concession in that respect. The Carpenters also made additional statements and submitted additional documents with respect to "area practice". No one objected to the filing of this "supplementary" Brief.

40. In the result, the Carpenters had nearly a year and a half to gather and file particulars of the area practice it wished the Board to consider in this case.

41. Since the amendment of Practice Note No. 15 (in August 1988), the Board has consis­tently required parties to comply with it. It may be that in some cases a party has been permitted to call evidence with respect to matters which have not been adequately particularized. However, this merely demonstrates the Board's willingness to exercise its discretion in that respect in appropriate circumstances. It does not mean that the Practice Note need not be taken seriously. On the con­trary, the Board's recent jurisprudence demonstrates that parties to a jurisdictional dispute com­plaint run a significant risk of being precluded from calling evidence of matters they have failed to properly particularize (see, Spruce Falls Power and Paper Company Limited, [1989] OLRB June 645; E.S. Fox Ltd., [1992] OLRB Feb. 145; Ellis-Don Limited, [1992] OLRB June 695). Acco Canadian Material Handling, Board File No. 2841-88-JD, July 18, 1989 unreported, which was referred to by the Carpenters, is both consistent with the Board's general approach and demon­strates the utility of the pleading requirements of the Practice Note.

42. In arriving at our March 2, 1992 ruling, we concluded that it would have been contrary to Practice Note No. 15, and the plain wording and intent of the Board's November 1991 job list directions, to permit the Carpenters to slip in particulars of area practice evidence to which there had been no earlier reference. It would also have been unfair, in our view, to the other parties, particularly Vic West and the intervenor which had already closed their case in chief, to permit the Carpenters to do so after the hearing was well underway. Except in extraordinary circumstances, or where a satisfactory explanation is offered, a party will not generally be permitted to unilaterally alter the structure of a proceeding by adding new allegations or particulars.

43. In this case, we were not satisfied that there were extraordinary circumstances or a sat­isfactory explanation. In addition to Practice Note 15, the Board had specifically directed the par­ties to provide specified 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). The Carpenters response, Exhibit 22, did not, as we observed on March 2,1992, contained the necessary particu­lars. Further, in response to a question from the panel, counsel for the Carpenters specifically stated that there was nothing in Exhibit 22 which relates to anything in either of the two Briefs the Carpenters filed before the hearing on the merits began. We understood counsel to mean that everything in Exhibit 22 was new.

44. The Board's November 1991 direction clearly required the parties to exchange and file particulars, in the nature of the job list, of the jobs to which they had already referred to in their materials, and only to such jobs. These directions were not intended to present an opportunity to introduce new area practice. Although the Sheet Metal Workers March 2, 1992 objection in that respect focused on the Sandrin Bros. jobs listed in Exhibit 22 as examples of both new and inade­quately particularized area practice, neither that objection nor the Board's ruling on it was limited to those examples. On the contrary, the Board had specifically ruled that it would not receive evi­dence of anything in Exhibit 22 which was new; that is, if it did not relate to area practice materials filed prior to November 26, 1991, the Board would not hear the evidence. Since the Carpenters conceded that everything in Exhibit 22 is new, the result of the Board's March 2, 1992 ruling was that the Board would not receive evidence of anything in it. To the extent that it was necessary to clarify matters, the Board so ruled.

45. Further, since the Carpenters conceded that everything in Exhibit 22 was new, it fol­lowed that nothing in it constituted particulars of the Area Practice referred to in its two Briefs. That is, the Carpenters have filed no particulars in accordance with the Board's November 19, 1991 directions.

46. The Carpenters again asserted that it had made reasonable efforts to obtain particulars and that the Board should therefore receive the evidence the Carpenters had to offer in that respect. Counsel advised that he had written a letter to Doug Chalmers Construction (which appeared to constitute a significant part of the area practice the Carpenters wished to rely on) requesting particulars and that his firm had followed up that letter by telephone. Counsel said that he had personally gone to Sarnia for one day which he spent talking to various people, mainly members of the Carpenters Union. In the result, no particulars were obtained.

47. For purposes of dealing with the September 16, 1992 objection, the Board accepted counsel's account of the efforts made to obtain particulars. We found that writing a letter, making a few telephone calls, and making a single, and what must have been a rather brief visit to the area was not, in the circumstances, adequate in that respect. Indeed, it seemed to be little more than a token effort. A party to a jurisdictional dispute complaint (or any other proceeding) must take whatever steps are required to ensure that the particulars or materials which it is obliged to put before the Board, whether by the Board's Rules, Practice Note, Board direction or otherwise, are in fact put before the Board in some comprehensible form. Difficult though it may be, it is incum­bent upon a party to do so. Further, we found it difficult to understand how a party could have a hard time providing particulars of something which it had alleged, particularly, where, as the Car­penters did here, it states that it has the necessary evidence at hand. If a party is really unable to provide the requisite particulars, one might well wonder what basis there was for making the alle­gation in the first place.

48. Further, the purpose of particulars is to inform the other parties of the case they must prepare to respond to, and to give the proceeding focus and make it manageable. If a party, in this case the Carpenters, is unable to obtain the particulars of area practice on which it wishes to rely, how can the other parties be expected to deal with it? The other parties appeared to have no diffi­culty in providing particulars of what they asserted was the relevant area practice.

49. In the result, we were satisfied that the Carpenters did not comply with the Board's November 1991 direction. The Board was also satisfied that, with the exception of an EPSCA job referred to in tab 4 of the Carpenters first Brief, the area practice materials in both of the Carpen­ters' Briefs lacked the particularity required, either by Practice Note No. 15 or the Board's direc­tions. It was, or should have been, well understood that if a party did not provide particulars as directed, and any other party objected in that respect, the delinquent party would not be permitted to adduce area practice evidence to the extent that particulars were lacking. The Board therefore ruled, on September 16, 1992, that the Carpenters would not be permitted to call area practice evi­dence to the extent that its materials had not been properly particularized as aforesaid.

50. The matter did not end there, however. On October 14, 1992, the Carpenters again sought to lead evidence of matters referred to in Exhibit 22. When it was brought counsel's atten­tion that the Board had already ruled that it would not receive such evidence, counsel asserted that he had not understood that to have been the ruling. Counsel said he had understood the ruling to relate only to evidence of the practice of Doug Chalmers Construction.

51. Counsel apologized for his misunderstanding and sought reconsideration of the Septem­ber 16, 1992 ruling. Counsel repeated his plea that reasonable efforts had been made to provide the particulars directed by the Board and that it was not his or the Carpenters fault that these efforts were not productive. Counsel also cross-referenced Exhibit 22 and the area practice materi­als in the Carpenters' first Brief.

52. The Board was not persuaded that there was any cogent reason to reconsider its Sep­tember 16, 1992 ruling. The September 16, 1992 ruling was clear. Any misunderstanding in that respect, though unfortunate, did not detract from the fact that the ruling had been made. Nor did Carpenters' counsel say anything new in support of his assertion that reasonable efforts had been made to provide the required particulars. The Board found those efforts inadequate on September 16, 1992, and they were still inadequate on October 14, 1992.

53. When the same issue was being argued on September 16, 1992, counsel said very clearly that nothing in Exhibit 22 related to anything in tab 4 of the Carpenters' Brief. This statement was made in response to a specific question which the panel asked because it was not at all apparent that Exhibit 22 had any connection to the previously filed materials. On October 14, 1992, counsel took a different position and asserted that items 1, 2, 3, 4, 7, 9, 11 and 13 in Exhibit 22 were partic­ulars of jobs listed on the third page of tab 4 of the Carpenter's first Brief. Counsel submitted that these particulars either fully or substantially satisfied the Board's November 1991 directions.

54. On the face of the two documents there is no connection between them. With the assis­tance of counsel's cross-referencing at the hearing, it was possible to discern an apparent connec­tion between the items in Exhibit 22 identified by him and items on page 3 of tab 4 of the Carpen­ters' first Brief. However, the discrepancies in the information between the two documents made it impossible to make that connection without counsel's assistance with respect to all but item 7 in Exhibit 22, and even then October 14, 1992 was too late to make that connection. In the result, the Carpenters' request for reconsideration of the Board's September 16, 1992 ruling was dismissed.

55. Counsel asked for immediate written reasons for the Board's ruling. Though under no obligation to provide written reasons for other than a final decision, the Board indicated that it would provide written reasons at an appropriate time (namely herein) but that we would not inter­rupt the proceedings to do so. Counsel then asked for time to consider his position and obtain instructions. In the circumstances, including the proximity to the normal lunch break, the Board adjourned for lunch.

56. Upon reconvening after lunch, Carpenters' counsel stated that he was instructed to make a written request for reconsideration and to request an adjournment for that purpose. The Board saw no reason to adjourn the proceeding to permit yet another request for reconsideration of its evidentiary ruling and the request was denied.

57. Sure enough, the Carpenters again sought reconsideration of the Board's evidentiary ruling by letter dated November 3, 1992. There was little new in the Carpenters' written submis­sions other than an assertion that it was beyond the Board's jurisdiction and a denial of natural jus­tice for the Board to refuse to receive what the Carpenters asserted was relevant area practice evi­dence.

58. The Board saw no reason to reconsider its earlier decision in that respect. For evidence to be relevant it must relate to a pleaded material fact. The evidence which the Carpenters sought to lead was not relevant to the material to the facts it had pleaded or particulars it had provided. Further, all parties are entitled to natural justice. In our view, to permit the Carpenters to lead evi­dence with respect to facts which it had failed to plead or particularize as it was required to, would, in the circumstances, have been a denial of natural justice to the Sheet Metal Workers and Vic West (and the intervenor). This request for reconsideration was therefore dismissed as well (orally at the November 10, 1992 hearing).

(b) - Recalling of a Witness

59. Near the conclusion of their case, the Sheet Metal Workers sought to call Roland Hill as a witness. The Carpenters objected on the basis that Hill had already testified, as Vic West's (and the intervenor's) witness. The Sheet Metal Workers asserted that they should be permitted to recall Hill in order to put "fuller and more complete" evidence of the practice of a company named Peerless enterprises before the Board in accordance with the Board's interest in that respect as expressed in the November 1991 job list directions as aforesaid. Vic West and the intervenor sup­ported the Sheet Metal Workers' position, pointing out that the Carpenters' objection could not be sustained if the Sheet Metal Workers sought to call someone other than Hill to testify with respect to the practice of Peerless.

60. The Board allowed the Carpenters' objection and ruled that Hill could not testify again. The Sheet Metal Workers were seeking to recall Hill; they were not seeking to call someone else for the first time. Hill had already testified as a witness of Vic West and the Ontario Sheet Metal and Air Handling Group. He had been examined by their counsel and cross-examined by counsel for the Sheet Metal Workers. The complainants, responding party and intervenor respectively, the Sheet Metal Workers, Vic West and the Ontario Sheet Metal and Air Handling Group are allied in the interest of this proceeding. Hill was an employee of Peerless when he first testified and the Board was satisfied that he could have testified about the relevant practice of Peerless at that time. It appeared that what the Sheet Metal Workers were trying to do was to fill what they perceived were gaps in the evidence which did not become apparent until after Hill had left the witness stand.

61. Nothing in either the November 28, 1991 or March 2, 1992 rulings by the Board did anything to change the nature or focus of this complaint. Nor, until September 15, 1992(when the Sheet Metal Workers sought to recall Hill), was there any suggestion that the Board's directions or rulings had placed any party in a position that required or might require a party to seek to recall a witness. Indeed, the November 1991 directions required no more then the filing of appropriate particulars of the cases which the parties had already pleaded, and which it was hoped would expe­dite the proceeding. The March 2, 1992 ruling confirmed this. The fact that the Sheet Metal Work­ers, and Vic West and the intervenor, intended to rely upon evidence with respect to the practice of Peerless was well known to all from the outset as evidenced by the Briefs filed by them in that respect.

62. Other than in reply, a party should not be permitted to recall a witness, whether its own or that of another party, except in extraordinary circumstances. All parties must ask whatever questions they may have of a witness with respect to the matters and issue in a proceeding when that witness testifies. If any party does not do so, either purposely or through inadvertence, it can­not be expected to be able to recall a witness to answer questions which could have been asked the first time without requesting leave to do so, which leave the Board will not grant unless there is a cogent reason to do so. In our view, there was no such cogent reason in this case.

IV - Motion to Terminate the Proceedings

63. At the hearing on October 5, 1992, the Carpenters advised the Board that it and Vic West had resolved the grievance in Board File No. 2715-89-G, and that, pursuant to the agreement between them in that respect, the Carpenters sought leave to withdraw that grievance and referral to the Board. The Carpenters indicated that if leave was granted, as in its submission it had to be, it would request that the Board terminate the jurisdictional dispute proceedings herein on the basis that the demand for the work which had given rise to the complaint, namely the grievance, no longer existed.

64. The grievance in Board File No. 2715-89-G was not before the Board on October 5, 1992. However, no one objected to it being brought forward, and upon doing so, and upon hearing the representations of the parties, the Board granted the Carpenters' request and the grievance in Board File No. 2715-89-G was withdrawn with leave of the Board. However, the Board also directed that a copy of the written agreement between the Carpenters and Vic West in that respect be filed with the Board as an Exhibit in this proceeding.

65. The Board then heard the representations of the parties regarding the effect of the dis­position of the grievance on this complaint. The Carpenters argued that the removal of the griev­ance meant that the demand for the work in dispute herein which led to the complaint no longer existed, and that therefore the Board no longer had the jurisdiction to deal with it. Counsel referred to the Board's decision in E.S. Fox, [1990] OLRB May 504 in that respect. In the alterna­tive, the Carpenters submitted that there was no good labour relations or other reason to continue with the jurisdictional dispute complaint in the circumstances.

66. The responding party Vic West supported the Carpenters (as it was obliged to do by the agreement between them). Counsel for Vic West observed that it was likely that the Board's juris­dictional dispute process would change in the near future (a reference to the anticipated amend­ments to the Labour Relations Act which have since come into force and the new streamlined juris­dictional dispute procedure) such that the time and energy invested in this proceeding would not have to be reinvested if the same issue was brought before the Board again in another case. Coun­sel submitted that there was nothing to be gained from proceeding with this complaint.

67. The Sheet Metal Workers did not agree. They reviewed the history of this complaint. They argued that all the parties had agreed to the Board's jurisdiction to hear and determine the jurisdictional dispute herein, and that it was not open to any party to now challenge the Board's jurisdiction in that respect so late in the process. The Sheet Metal Workers submitted that, given the stage of the proceeding, the settlement of the grievance should be taken as an acknowledge­ment of the Sheet Metal Workers' jurisdictional claim in the complaint and that the Board should therefore make the appropriate orders in that respect, including orders regarding future jobs in Board Area 2 generally. Counsel argued that once a hearing on the merits has begun, a "with­drawal" by a complainant or the responding parties entitles the parties opposite to a disposition of the matter on its merits. Counsel referred to the Board's decision in Steen Contractors Limited, [1986] OLRB Rep. May 677. He also argued an analogy based on Rule 23 of the Ontario Rules of Civil Procedure and referred to Court decisions in Blum v. Blum, [1965] 10. R. 236 (Court of Appeal), Hennig v. Northern Heights (Sault) Ltd., 1980 CanLII 1574 (ON CA), [1981] 30 O.R. 2nd 346 (Court of Appeal), and McCarthy v. Acadia University, 1977 CanLII 1807 (NS CA), [1977] 3 C.P.C. 42 (Nova Scotia Court of Appeal). The Sheet Metal Workers submitted that while it is appropriate for the Board to encourage settlement, the Board should do so responsibly, and that in this case the Board should award the relief sought by the Sheet Metal Workers for both labour relations reasons and to prevent what they counsel char­acterized as an abusive process in the form of a tactical withdrawal in the middle of the withdraw­ing parties case. In the alternative, the Sheet Metal Workers argued that the Board should either continue with the hearing or at lease order the Carpenters to pay the Sheet Metal Workers' costs of this proceeding.

68. As we have already indicated, this jurisdictional dispute complaint was filed on April 2, 1990, in response to the Carpenters' grievance in Board File No. 2715-89-G. In the grievance pro­ceeding, the parties (which included the Sheet Metal Workers as an intervenor for those purposes) agreed among themselves that the Board should defer consideration of the grievance pending the disposition of this complaint. However, because the responding party Vic West had denied that the Carpenters held any relevant bargaining rights, the Board decided, for the reasons expressed in Schindler Elevator Corporation, [1990] OLRB Rep. Oct. 1092 (request for reconsideration dis­missed [1991] OLRB Rep. Jan. 111) the Board decided to deal with the bargaining rights issue in the grievance proceeding first (see Board decision dated December 10, 1990 herein in that respect).

69. Before that issue could be heard by the Board, the responding party Vic West con­ceded, by letter dated March 25, 1991, that the Carpenters did indeed hold relevant bargaining rights. Having regard to that concession, and to the agreement of the parties with respect to how the matter should then proceed, the grievance proceeding was adjourned sine die pending the dis­position of this complaint.

70. The Board then proceeded with the hearing on the merits of this complaint. When the Carpenters made its motion to terminate this proceeding on October 5, 1992, there had been ten days of hearing (including the May 22, 1991 hearing day when preliminary matters were dealt with). Fifteen other hearing days had been scheduled but were adjourned. Three more hearing days remained.

71. It seemed probable that the Board's rulings as aforesaid played no small part in assisting the Carpenters to come to a settlement of the grievance with Vic West. Indeed, in his submissions in support of the "termination motion", counsel for the Carpenters specifically said that the Board's "technical" rulings had had something to do with it. The Carpenters and Vic West reduced the settlement of the grievance in writing as follows:

OLRB FILE NO 2715-89-G

Between

United Brotherhood of Carpenters & Joiners of America, Local 1256

Applicant

and

Vic West Steel Limited

Respondent

Whereas the parties wish to resolve the grievance which is the subject of OLRB File No. 2715-89-G

The parties hereby agree as follows:

1. The Respondent acknowledges and agrees that it is bound to the Carpenters Provincial ICI. Collective Agreement between the Carpenters' Employer Bargaining Agency and the Ontario Pro­vincial Council, United Brotherhood of Carpenters and Joiners of America.

2. The Respondent acknowledges that at the time that the work which is the subject of this grievance was assigned and at the time the subject grievance was filed, the Respondent was not aware that it was bound to the afore-mentioned Collective Agreement.

3. The Respondent agrees that when assigning the installation of siding in future in Lambton County, the Respondent will con­sider the jurisdictional claims of both the Applicant and the Sheet Metal Workers Local 539 to such work.

4. The Applicant hereby withdraws the grievance and section 124 referred in OLRB File No. 2715-89-G.

5. The Respondent agrees to support the request of the Applicant to terminate the proceedings on O.L.R.B. File No. 0013-90-JD in light of paragraph 4 herein.

Dated at Toronto this 5th day of October, 1992

72. It was in this context that the Carpenters brought their motion to terminate this com­plaint.

73. In E.S. Fox, supra, the Board allowed a similar motion as follows:

10. We find it unnecessary to determine whether the Board has jurisdiction to inquire into a complaint concerning work assignment in circumstances like those in this case. Assuming, with­out finding, that the Board does have the jurisdiction to continue to inquire into the merits of this complaint, this is, in our view, an appropriate case for the Board to exercise its discretion to not do so. (We do note, however, that we find much merit in the submission that the Board is without jurisdiction to do so. In that regard, we prefer the suggestion that the words "was or is requiring" in section 91(1) refer to whether or not the work in dispute has been completed to the submissions of the complainant in that respect. In our view, it would make little sense, from either a labour relations perspective or otherwise, to interpret section 91(1) in a way which would effectively prohibit a party which has made a demand that certain work be assigned in a different way from withdrawing that demand in every case: See Anchor Shoring Limited, supra,; Commonwealth Construction Company, supra; but see Scope Mechanical Contracting Limited, supra for a contrary view.)

11. Scope Mechanical Contracting Limited, supra, was a complaint concerning the assignment of work (i.e. a jurisdictional dispute). One of the respondents had filed two grievances: one against the employer which had assigned the work in question to members of another trade union, and one against the general contractor alleging that it had improperly subcontracted the work in question to the employer which had assigned the work. Both grievances were referred to the Board pursuant to section 124 of the Act. Subsequently, the grievance against the employer which had assigned the work in question was withdrawn with leave of the Board. Consideration of the second grievance was deferred pending the disposition of the jurisdictional dispute. The respondents argued that the Board had no jurisdiction to inquire into the jurisdictional dispute because the grievance against the employer which had assigned the work in question had been withdrawn and there was therefore no one requiring that the work assignment be changed. The Board referred to Napev Construction Ltd., [1980] OLRB Rep. Feb. 247 and was satisfied that the grievance against the general contractor could not give rise to a complaint under section 91 (see also Harold R. Stark Co. Ltd., [1982] OLRB Rep. Feb. 222, April 5,1976). The Board held that notwithstanding that the grievance against the employer which had assigned the work had been withdrawn, the necessary demand that the work assignment be changed had been made and that the Board had jurisdiction to inquire into. However, there is no indication on the face of the Board's decision in Scope Mechanical Contracting Limited, supra, that the Board was asked to or that it considered whether it should inquire into the complaint even if it had the jurisdiction to do so. Because we have determined that it is appropriate for us to exercise our discretion to not inquire into this complaint even if we have the jurisdiction to do so, the Scope Mechanical Contracting Limited, supra, decision was of little assistance to us and we decline to comment on it further.

12. In Steen Contractors Limited, supra, the Board drew an analogy between a jurisdictional dis­pute proceeding and a civil proceeding in which a claim and counter-claim is made and to a mechanic's lien action in which a number of claims are made. With great respect, neither anal­ogy is, in our view, an apt one. First, in a civil proceeding, a claim and counter-claim are consid­ered to be separate actions within the same proceeding. In a complaint under section 91, there may be competing claims for the work in question, but there is only one action. Second, labour relations considerations are very important in jurisdictional disputes but have little or no place in civil proceedings or mechanic's lien actions. It was precisely such labour relations considerations which led the Board to deny the complainant's request for leave to withdraw its complaint in Steen Contractors Limited, supra. In paragraph 16 of that decision, the Board explained its reasons in that respect as follows:

13. In the instant case, therefore, while it may not make sense to compel Plumbers' Local 463 to pursue its initial claim in spite of its request to withdraw it, there are good labour relations reasons for not allowing Local 463 to bring to an end the pro­ceedings with respect to Labourers' Local 597's counter-claim to the work. First, the work in dispute herein has been and remains a source of conflict between the two trade unions in the Oshawa area, conflict which has demonstrated a potential for causing unlawful strikes. Therefore, it makes labour relations sense that the Board proceed to determine the merits of the dispute, as Labourers' Local 597 and the inter­vener have argued. Second, in view of the Board's comments at paragraph 16 of its decision in the Stark case, supra, about the problems of dealing under section 124 of the Act with what is essentially a work assignment dispute, it also makes labour rela­tions sense that the determination be made in the context of a section 91 complaint rather than leaving it to arise again as a referral of a grievance under section 124. Given the purpose of section 91 and the fact that Plumbers' Local 463 initially came before the Board with a request for an inquiry into its claim concerning a work assign­ment dispute and with a request for an interim order, which it obtained, the Board is of the view that this is a case where the complainant should not be permitted to unilaterally cause the proceedings to be terminated. To allow Local 463 to do so would mean that the conflict which gave rise to the complaint would remain unresolved. The Board is not prepared to have that happen. Moreover, Local 463 has enjoyed the benefit and protection of the Board's interim order and, having set in motion a request for a final order or direction respecting the work in dispute, it should not be permitted to deprive Labourers' Local 597 and the intervener of the opportunity to have their interests in a potentially disruptive dispute protected by means of an adjudication of the matter on its merits.

(emphasis added)

13. In this case, there is no indication that the work in question is a source of conflict with the demonstrated or any potential for causing unlawful strikes. Second, this is not a case in which Local 562 or the Sheet Metal Conference seek to have the proceedings terminated after having obtained the benefit of some interim relief with respect to the work assignment in question. In short, the labour relations considerations which led the Board in Steen Contractors Limited, supra, to exercise its discretion to inquire into the complaint in that case are not present in this one. Accordingly, it too was of little assistance to us.

14. The Board is an adjudicative tribunal, not an advisory body (except where the statute specif­ically enables the Minister to refer to the Board any question that arises with respect to the Min­ister's authority to make an appointment under sections 16, 44 or 45 of the Act). Accordingly, the Board does not normally embark upon inquiries into academic or hypothetical questions (see, for example, Magna International Inc., supra; Beverly Enterprises Canada Limited, supra; Daynes Health Care Limited, [1983] OLRB Rep. May 632). The Board's function is to deter­mine labour relations matters brought before it under the Labour Relations Act or other legisla­tion (like, for example, the Occupational Health and Safety Act, R.S.O. 1980 Chapter 321 and the Colleges Collective Bargaining Act, R.S. 0. 1980 Chapter 74). In our view, it would be gen­erally futile and perhaps counterproductive for the Board to engage in speculation with respect to disputes which have not developed either to the point that they have been brought before the Board or at all.

15. Perhaps the Board will have to deal with a jurisdictional dispute like this one in the future. Perhaps not. If it does, who can say what differences there will be between this dispute and one which may come before the Board in the future? Any future case may well involve work which is somewhat different, it may involve different parties, it may involve a different geographic area, and it may even involve a different sector of the construction industry.

16. In jurisdictional disputes, which are difficult enough to determine even with the benefit of evidence and representations from the parties which are affected by the dispute, it is rarely possible and generally inappropriate for the Board to attempt to determine anything more than the complaint before it. Similarly, attempts at advance rulings are generally inappropriate. The impact that the Board's jurisdictional dispute jurisprudence has on a future case is best left to be determined in that future case.

17. It is fundamental to a complaint concerning the assignment of work that there be a dispute concerning the assignment of some specific work. Where there is no demand that some specific work be assigned in the manner different from the way it was assigned, there is no continuing dispute concerning the assignment of work and no jurisdictional dispute which is appropriate for the Board to inquire into in the absence of extraordinary circumstances (as in, for example, Steen Contractors Limited, supra).

18. In this complaint, the demand that the assignment that the work described in paragraph 4 above be changed came in the form of the grievance which has since been withdrawn. Accord­ingly, there is no longer any trade union which is requiring that that work assignment be changed.

19. To proceed with an inquiry into a complaint where its basis has disappeared would tend to emasculate the pre-hearing procedure which has been adopted by the Board in complaints con­cerning work assignments. The purpose of that pre-hearing procedure is to encourage the reso­lution of jurisdictional disputes without a determination by the Board. Such resolutions can and sometimes do include the withdrawal of the complaint or the demand which led to it being made after the discovery afforded by the Board's pre-hearing process, and, in some cases, a determi­nation of issues which, though they are preliminary in nature, tend to shape the litigation. Also, and perhaps more importantly, to proceed with a jurisdictional dispute in such circumstances will not usually further harmonious labour relations. Indeed, it would likely have quite the opposite effect.

20. We recognize the expense (in terms of both time and money) that the parties have incurred in this matter. The fact that Local 562 has decided to retract its demand that the work assign­ment in question be changed shows that this has not been for nought. In any event, the fact that expenses have been incurred is not a reason to require a matter to continue to be litigated to the bitter end and certainly does not, in our view, constitute "prejudice" within the meaning of that term in law. We also observe that if, as the complainant fears, a complaint is made to the Board with respect to the same or substantially the same work, some or all of the parties will be able to draw upon the time and money invested in this proceeding in the course of that one. If there is no such future complaint, there is no point at all to forcing this proceeding forward.

21. In short, we are not satisfied that there is any cogent reason to proceed further with this complaint. On the other hand, the labour relations considerations favour not proceeding with it. In the result, we find it appropriate to exercise our discretion to not inquire further into this complaint. The complaint is therefore dismissed.

(emphasis in paragraph 10 added)

74. The E.S. Fox, supra, decision was expressly made in the exercise of the Board's discre­tion under section 93 of the Act, based on the assumption that the Board had the jurisdiction to continue with the matter if the Board considered it appropriate to do so. Further, a hearing on the merits of the complaint in E.S. Fox, supra, had not yet begun. We do not agree with the Board's obiter suggestion in paragraph 10 of the E.S. Fox, supra decision that the withdrawal of the griev­ance which raises a jurisdictional dispute complaint removes the Board's jurisdiction to entertain that complaint. Otherwise, we agree with the E.S. Fox, supra decision.

75. In the interests of labour relations stability in the construction industry (which is the context in which the vast majority of jurisdictional disputes complaints arise), the Board has adopted a broad approach to jurisdictional disputes. Once satisfied that it has the jurisdiction to do so, the Board will generally hear a complaint concerning work assignment on its merits unless there are good labour relations reasons not to do so. It is not uncommon for a grievance to raise an issue which is essentially or substantially a jurisdictional dispute. When a complaint under section 93 has been filed with respect to the same assignment of work which is the subject of a grievance which has been referred to the Board, the Board is faced with deciding how the dispute is best resolved. The purpose of section 126 (the provision pursuant to which a grievance in the construc­tion industry is referred to the Board for arbitration) is to provide an expeditious mechanism for resolving grievances in an industry in which the nature of the work and the structure of labour rela­tions often renders ineffectual the kinds of arbitration provisions typically found in collective agreements. On the other hand, section 93 is specifically designed to be the primary means by which jurisdictional disputes are to be resolved. Accordingly, although there may be circumstances in which it is not appropriate to do so, the Board will generally defer consideration of a grievance until a jurisdictional dispute which relates to the same assignment of work has been resolved. When faced with that kind of situation, the Board has generally concluded that the grievance con­stitutes a demand for the work in question (Eaman Riggs Limited, [1978] OLRB Rep. March 228, Napev Construction Limited, [1979] OLRB Rep. Sept. 886, Pre-Con Company (a division of St. Mary's Cement Limited), [1981] OLRB Rep. July 947, Ontario Hydro, [1982] OLRB March 428). A jurisdictional dispute complaint need not be dispositive of a grievance before the Board will defer a consideration of the latter.

76. In Schindler Elevator Corporation, [1990] OLRB Oct. 1092, the Board declined to defer consideration of a grievance which had jurisdictional implications until a jurisdictional dispute complaint in that respect was disposed of on the basis that it was far from clear that the grievance would succeed, and it was not evident that any useful purpose would be served by setting the (then cumbersome) jurisdictional dispute process into motion until it was established that there had been a breach of the collective agreement therein as alleged by the grievance.

77. In this case, the parties agreed among themselves that the Board should defer consider­ation of the now withdrawn grievance in Board File No. 2715-89-G pending the disposition of this jurisdictional dispute complaint. For the reasons given in Schindler Elevator Corporation, supra, the Board decided not to proceed with the jurisdictional dispute notwithstanding the agreement of the parties. Instead, the Board directed that the grievance proceed at least to the stage of deter­mining whether the Carpenters held any relevant bargaining rights with respect to Vic West. In a decision dismissing the Sheet Metal Workers' request that the Board reconsider its decision to pro­ceed in this way (1991 OLRB Rep. Jan. 111), the Board reasoned that:

3. A recurrent complaint from the labour relations community in recent years has been that jur­isdictional disputes take too long and are too expensive to litigate before the Board. The com­munity has complained that this situation has developed because the Board has failed to be suf­ficiently active in directing the proceedings. The Board has been aware of and sensitive to these concerns. It too has experienced some frustration in that respect. Jurisdictional disputes have come to consume an ever increasing and disproportionate amount of the Board's resources. It has become increasingly apparent that the costs of jurisdictional dispute proceedings, both to the Board and to the parties, often far exceed the value of any benefit derived from them. That situation is rapidly going from bad to worse.

4. Originally, the parties agreed among themselves that it would be appropriate to defer the sec­tion 124 proceeding herein pending a determination of the complaint concerning work assign­ment filed by Sheet Metal. The Board will generally proceed in accordance with an agreement between parties in hearings before it. However, it has become apparent that the nature and diversity of interests involved in disputes concerning work assignments are such that it is unreal­istic to expect that either the labour relations community in general, or the parties to a particu­lar dispute are likely to do anything to reverse or stop the escalation in the temporal or financial costs of litigating such complaints. It is therefore appropriate for the Board to look more closely at such proceedings, and, having regard to the discretion which the Board has under section 91 of the Labour Relations Act, to be more willing to question and determine how such litigation should proceed.

5. We do not understand Sheet Metal's assertion that "... it is not the grievance filed by Carpen­ters', Local 1256 captioned as OLRB File No. 2715-89-G that "raises a spectre of a jurisdictional dispute"." It is readily apparent that the complaint in Board File No. 0013-90-JD has been filed in response to the grievance referred to the Board in Board File No. 2715-89-G. In that respect, we note that the work in question has been assigned to members of Sheet Metal, the complain­ant in the jurisdictional dispute proceeding. In addition, whether or not the United Brotherhood of Carpenters and Joiners of America, Local 1256 ("Local 1256"), the applicant in the section 124 proceeding, holds any relevant bargaining rights with respect to Vic-West Steel (Limited) (a respondent in both proceedings) remains an issue in both proceedings, notwithstanding the alteration of Sheet Metal's position in that respect. In addition to maintaining that Local 1256 holds no relevant bargaining rights, it is now Vic West Steel (Limited)'s position that the Board should proceed to determine that issue first, in the context of the section 124 proceeding.

6. It is implicit in the manner in which the parties have conducted themselves that it is common ground that Local 1256's grievance constitutes a demand for the work in question. But if Local 1256 does not hold the bargaining rights upon which its grievance is based, its grievance will be dismissed. Since there does not appear to be any competing demand for the work in question independent of Local 1256's grievance in Board File No. 2715-89-G, there would no longer be a jurisdictional dispute within the meaning of section 91 of the Act.

7. of course, if its grievance fails, Local 1256 could itself file a complaint under section 91 which, if it proceeded, would raise the same work assignment dispute as the present complaint. However, a very significant difference would be that the issue of Local 1256's bargaining rights would have been determined as between the parties. It is true that the existence of bargaining rights is but one factor which the Board considers in determining jurisdictional disputes. How­ever, a review of the Board's jurisprudence makes it readily apparent that it is a very significant factor where one of the trade unions involved holds relevant bargaining rights and the other does not. Consequently, a determination of the bargaining rights question is very likely to put the jurisdictional dispute into different perspective, whichever way it is determined, but particu­larly if Local 1256 is found to not hold any relevant bargaining rights. Consequently, resolving this issue before proceeding with a jurisdictional dispute may well reduce the costs of any juris­dictional dispute proceeding both to the Board (and therefore the taxpayer) and the parties.

8. In the result, we are not persuaded that it is either necessary or useful to proceed with the complaint concerning work assignment herein at this time. Nor are we satisfied that any preju­dice will result to Sheet Metal if the Board proceeds to determine the bargaining rights issue in the section 124 proceeding first, given that the work assignment which is in dispute was made in favour of Sheet Metal and given that Sheet Metal now appears to take no position on the bar­gaining rights issue.

78. As we have already explained, Vic West subsequently conceded the bargaining rights issue and the Board proceeded with this jurisdictional dispute complaint.

79. It is true that there must be a demand for work which has been otherwise assigned before the Board had jurisdiction under section 93. Indeed, there could be no complaint unless there was a dispute regarding some assignment of work.

80. This complaint was filed by the trade union whose members were assigned the work in dispute, in response to the Carpenters' grievance which asserted jurisdiction over that work and that the work should be assigned to its members. The grievance was the only demand for the work in dispute.

81. At the time the motion to terminate was made, that was no longer the case. In this com­plaint, the Carpenters, though conceding that work in connection with the installation of sheet metal siding onto bases other than wood at the Loeb IGA Store on Exmouth Street in Sarnia had properly been assigned by Vic West to members of the Sheet Metal Workers, joined issue with the Sheet Metal Workers (and Vic West) with respect to the claim by the Sheet Metal Workers that the dispute in connection with the installation of sheet metal siding onto wood at that job site had

also been properly assigned to members of the Sheet Metal Workers. In response to a question from the panel during the argument of the "termination motion", the Carpenters specifically stated that it did not withdraw, amend or resile from any of the assertions or claims it had made in this proceeding. Those assertions boil down to this:

The work associated with the installation of sheet metal siding onto wood both generally and specifically at the Loeb IGA Store on Exmouth Street in Sarnia is within the trade jurisdiction of the carpenter and should have been assigned to members of the Carpenters Union.

82. Further, it was readily apparent that there was still a jurisdictional dispute between the Sheet Metal Workers and the Carpenters, both specifically with respect to the work in dispute herein and more generally with respect to the handling and installation of sheet metal siding in Lambton County.

83. We have already noted that in ES. Fox, supra, the hearing on the merits had not yet begun. Further, it was not apparent that there was any continuing jurisdictional dispute which had to be resolved, and the Board was satisfied that there was no labour relations or other reason to continue with that complaint. In this case, it was apparent that the work in dispute continued to be a source of conflict between the Sheet Metal Workers and the Carpenters. Further, the Sheet Metal Workers wanted the dispute resolved. The Board was not satisfied that the responding par­ties should be allowed to unilaterally put an end to proceedings instituted by the complainant, even if one of them is allied in interest with the complainant in the particular proceeding. Finally, it was readily apparent that the Carpenters Union, after ten days of hearing, and after the parties opposed in interest had closed their cases, and because of the rulings against them as aforesaid, was simply attempting to avoid what it perceived should be a negative result for it in this matter.

84. Jurisdictional dispute proceedings should not generally be terminated after hearing on the merits has begun where, as in this case, it is clear that the jurisdictional dispute still exists. The circumstances of this case were significantly different from those in E.S. Fox, supra. The Board had jurisdiction to continue with this complaint and, in all the circumstances, the Board was satis­fied that it made labour relations sense to do so to a determination of the dispute on its merits.

85. The Board therefore dismissed the Carpenters' motion and directed that the matter pro­ceed (see Board decision dated October 8, 1992) in that respect.