Ellis-Don Limited v. United Brotherhood of Carpenters and Joiners of America, Local 27, 1993 CanLII 7917

[1993] OLRB Rep. November 1130

1206-92-JD Ellis-Don Limited, The Jackson-Lewis Company Limited and Eastern Construction Company Limited, Applicants v. United Brotherhood of Carpenters and Joiners of America, Local 27, and Labourers International Union of North America, Local 183, Responding Parties

BEFORE: S. Liang, Vice-Chair, and Board Members W. N. Fraser and G. McMenemy.

APPEARANCES: Joseph Liberman for the applicants; S. B. D. Wahl and T. Dionisio for Labourers, Local 183; James Nyman and Frank O'Reilly for Carpenters, Local 27.

DECISION OF THE BOARD; November 4, 1993

1. This is a complaint concerning work assignment filed pursuant to the provisions of sec­tion 93 of the Labour Relations Act. On June 1, 1993, the Board held a consultation with the par­ties, in order to consult with the parties on all matters raised by the complaint. Pursuant to section 93(1.2) of the Act, the Board may make any interim or final order it considers appropriate after consulting with the parties, or may inquire into any matter raised by the complaint.

2. At the consultation the Board was informed that the complaint insofar as it relates to Konvey Construction Limited has been settled. The complaint by Konvey Construction Limited is withdrawn by leave of the Board and the title of the proceedings is thus amended to delete refer­ence to it.

3. The remaining parties will be referred to herein as "the companies" or "Ellis-Don", "Jackson-Lewis" and "Eastern", and "the Labourers" and "the Carpenters".

4. At the outset of the consultation, counsel for the Labourers requested that notice of these proceedings be given to all persons and trade unions that have any contact with the construc­tion undertaken at the job sites which are the subject of this jurisdiction dispute. Counsel stated that notice was required because in the course of this complaint, the Labourers have raised an issue as to which sector the work in dispute belongs, and the disposition of this issue should involve all interested parties. Further, counsel requests that the Board hear evidence with respect to the sector issue. Counsel thus indicated that the Board would not be able, in light of the sector issue, to deal with all matters raised by the complaint with a view to making a final order on the jurisdic­tion dispute. Counsel also suggested that it would be necessary for the Board to hear evidence on other issues raised by this jurisdiction dispute before making a final order.

5. After hearing submissions from all parties on the matters raised by the Labourers, the Board ruled that it would reserve on the request that notice be given to other persons with an interest in the construction projects at issue, and on the necessity of hearing evidence on any of the issues. We ruled that we would proceed to hear the representations of all parties with respect to all of the issues raised by the section 93 complaint. The parties are well aware of the factors that this Board takes into account in making determinations of work assignment. The issue of the existence of a landscaping sector was raised by the Labourers in resisting the application of a trade agree­ment on which the Carpenters rely. In hearing the parties' arguments, therefore, the Board expected that the parties would direct themselves to the applicability of this agreement to the work in dispute.

6. The applicability of this agreement is, however, only one of a number of factors which may be relevant to the determination of this jurisdiction dispute. We indicated to the parties that we expected them to direct their submissions to any factor on which they seek to rely for the deter­mination of this dispute. We indicated that at the conclusion of the submissions and on review of the material, we will determine whether the Board will hold a hearing, whether it will require any oral evidence to be led, whether it will require notice to be served on other parties, and whether it will make any interim or final order on the issues raised in this complaint under section 93.

Background of the Dispute

7. A brief outline of the history of this proceeding is in order. Between November 1991 and April 1992, the Carpenters filed grievances against the three applicants with respect to the sub­contract of certain work to contractors which employed members of the Labourers to perform the work. The issue underlying all these grievances was the assignment of work to members of the Labourers instead of to members of the Carpenters. On July 1992, the three companies filed a joint complaint under section 93 regarding the work in dispute under the grievances.

8. It was the position of the Carpenters that the work in dispute involves the carpentry portion of concrete forming construction work in the industrial~ commercial and institutional sector of the construction industry ("ICI sector"), and that jurisdiction over this work had been assigned to the Carpenters pursuant to an agreement between the Carpenters and Labourers dated May 15, 1991.

9. In its reply to the section 93 complaint, the Labourers stated:

The Work in Dispute falls within the Landscaping Sector of the construction industry and/or within the roads, sewer and watermain, utilities, heavy engineering and/or electrical power sys­tems sectors of the construction industry dependant upon the particular application of landscap­ing work at the project. Accordingly, the Ontario Labour Relations Board must determine the applicable sector of the construction industry within the context of this Complaint Concerning Work Assignment. It is the primary position of Labourers, Local 183 that the landscaping con­struction work at any of the named projects does not fall within the industrial, commercial and institutional sector of the construction industry. Accordingly, a determination by the Ontario Labour Relations Board pursuant to Section 152 is required in the course of these proceedings.

10. In the course of these proceedings the sector issue has been narrowed so that the dis­pute is whether the work in question is in the ICI sector or is in a yet unrecognized sector known as the "landscaping sector".

11. On September 30, 1992, the Board convened a pre-hearing conference with the parties for the purpose of narrowing the issues in the jurisdiction dispute. The panel presiding over the pre-hearing conference noted in its report that, with respect to the sector issue,

[W]hether the work in dispute is in the ICI sector, as maintained by the Carpenters, has implica­tions for the "peace treaty". The complainants and the Labourers maintain that the work in dis­pute is not work which falls within the ICI sector.

The complainants want the sector issue determined first and separate from the merits of the jur­isdictional dispute. The Labourers prefer that the sector issue be dealt with during the course of the merits of the jurisdictional dispute. The Carpenters want the Board to hear the sector issue together with the merits of the jurisdictional dispute.

12. On January 4, 1993, the Board convened a consultation with respect to this complaint, before this panel, in accordance with section 93(1.1). After hearing submissions from the parties with regards to various preliminary issues, the Board made certain rulings, contained in a decision of February 11, 1993. Amongst other things, the Board ruled that it would not split off the "sector issue" into a separate proceeding, as requested by counsel for the companies. Instead, the panel stated, "[i]f in the course of making our determinations on the complaint, this panel is required to determine whether the work in dispute is governed by the agreement between the Carpenters and the Labourers, and the resolution of this issue requires a determination as to which sector the work belongs to for the purposes of that agreement, then we will deal with this issue in the course of dealing with the complaint." [para. 30]

13. In its decision of February 11, this panel also directed detailed further filings from the parties. Amongst other things, the Labourers were directed to state all of the facts on which they rely in support of their position that the work in dispute is in the landscaping sector and is there­fore not covered by the agreement with the Carpenters, and to file copies of any documents on which they will rely in this matter.

14. In response to the Board's directions, the Labourers and the Carpenters filed, over the next several months, voluminous documentation with respect to the issues raised in this proceed­ing, in addition to documentation which had already been filed. All parties have had ample time to review each other's materials, and to respond with further filings if necessary. The issues in dispute are apparent from the materials filed and the parties have had an opportunity to address them in their own filings.

15. Additionally, in a further decision of the Board dated March 15, 1993, the Board stat­ed:

1.... For the assistance of the parties, the Board reiterates that this complaint concerning work assignment is scheduled for consultation before the Board on May 18, 1993 [adjourned on agreement of the parties to June 1]. The purpose of the consultation is to consult with the par­ties on all matters raised by the complaint, including whether or not the work in dispute is cov­ered by a trade agreement and in this regard the parties are referred to paragraph 30 of our prior decision of February 11, 1993. The filings directed by the Board include a statement of facts and any materials on which the parties rely to support their positions on the applicability of the agreement, including their positions based on "sector".

2. After consulting with the parties, the Board may make any interim or final order it considers appropriate, or may inquire into any matter raised by the complaint.

Description of the Work in Dispute

16. The work in dispute was generally described in the Board's decision of February 11, but has been further clarified since. With respect to Ellis-Don, it involves the carpentry portion of con­crete forming work in relation to various outdoor concrete structures on the Metro Hall site in downtown Toronto. These structures include retaining walls, seating walls, structures relating to an elevated stage, planters and curbs.

17. With respect to Jackson-Lewis, the work is also the carpentry portion of concrete form­ing construction work, and encompasses various outdoor concrete structures on the Hewlett Pack­ard site in Mississauga, including retaining walls, seating walls, signage structures, planters and curbs.

18. With respect to Eastern, the work in dispute is also the carpentry portion of concrete forming work in relation to various outdoor concrete structures on the Confederation Life site in downtown Toronto including retaining walls, seating walls, planters and curbs.

The Sector Determination

19. We do not intend to review the submissions of the parties in detail. All referred to and relied on the briefs and books of documents filed. Counsel for the Labourers submitted that sec­tion 153 of the Act requires the Board to determine whether work is in the ICI sector, where that has been put in issue. Further, for the purposes of such a determination, the Board cannot apply the procedures provided for in section 93, but is obliged to hold a hearing and hear evidence. The Board must adjourn the consultation in order to give notice of the sector issue to all affected par­ties. The companies take no position on whether the work in dispute is in the ICI sector, but agree that once a request for a sector determination has been made, the Board is obliged to hold a hear­ing and decide the issue.

20. In the case before us, the sector issue arises in the context of a jurisdiction dispute. It has been no secret that jurisdiction disputes have over the years been the focus of lengthy and costly hearings before the Board. The adjudication of the simple question "which trade should do the work?" has resulted in hearings thirty and forty days in length. The Act as amended recently has provided a response to the calls from the community for a better procedure to answer that question. As outlined by the Board recently:

21. For years prior to January 1,1993, the construction labour relations community cried out for a more responsive and expeditious jurisdictional dispute process before the Board. On January 1, 1993 the present section 93 of the Labour Relations Act came into effect. This provision is a response to the community's call and contemplates a much more expeditious procedure. The Board's new Rules of Procedure with respect to jurisdictional dispute (Rule 72-76) complement the new section 93 of the Act and also contemplate a radically expedited procedure. The Act and the Rules both contemplate that a complaint concerning work assignment may be disposed of without an oral hearing. The Act specifically gives the Board a discretion with respect to whether or not it will entertain a jurisdictional complaint, and also with respect to how the Board proceeds with a complaint it decides to entertain (section 93(1.1)). The Act goes on to provide that the Board may make any interim or final order it considers appropriate after hold­ing a consultation or a hearing (section 93(1.2).

22. In this case, the Board found it appropriate to schedule a consultation, a proceeding which is something less than a hearing in the traditional sense. Nevertheless, a consultation is an oppor­tunity, perhaps the only opportunity, for the parties to a jurisdictional dispute complaint to address the Board with respect to the matter. The rules of natural justice do not apply to such a proceeding in any traditional sense. However, the parties are afforded the opportunity to refer to the extensive materials which they are required to file in such cases, and to make representa­tions with respect to how the Board should proceed (including whether the Board should hear evidence or otherwise hold a hearing on any matter or issue) or dispose of the complaint. (Ontario Hydro et al. Board File No. 3238-92-JD, dated May 12, 1993, as yet unreported).

23. In the case before us, as well, the Board scheduled a consultation with the parties. As with jurisdiction disputes that proceed in this manner, it may be that after holding a consultation with the parties, the Board will decide that it is necessary to hold a hearing on some or all of the issues raised by the jurisdiction dispute. The decision whether or not to proceed to hear evidence is a decision that the Board will be in a position to make after its initial consultation. The Board does not proceed to a hearing on the mere request of a party.

24. In the case before us, the Board has been asked to decide whether the Carpenters or the Labourers ought to have been assigned specific work on three projects. That is the issue whose determination is the purpose of this jurisdiction dispute. In the course of setting forward its posi­tions on the jurisdiction dispute, the Labourers have asserted that the Board must determine whether this work is in the ICI sector, or in the "landscape" sector, a sector not referred to in the Act. This issue arises because of the terms of a trade agreement between the Labourers and the Carpenters, dated May 15, 1991, which, among other things, provides:

25. The carpentry portion of concrete forming construction work on any other project in the Geographic Area which may be found to be in the ICI sector of the construction industry, other than on the projects referred to in paras. 1 and 2 above, shall be performed exclusively by mem­bers of Local 27 employed under the Carpenters' Provincial Agreement.

26. The position of the Labourers is that the work in question is not covered by the trade agreement because it is not work in the ICI sector. The Board has a responsibility at this juncture to determine whether that issue regarding sector is one which is necessary to be determined in order to dispose of the jurisdiction dispute. If the Board is satisfied that it is indeed necessary for the determination of the jurisdiction dispute to make a finding as to what sector the work is in, the Board must also determine whether it is possible to decide this issue within the framework of the consultation procedures, or whether evidence is required on the issue.

27. We are satisfied on the material before us that the jurisdiction dispute can be deter­mined without the necessity of an oral hearing, either on the sector issue or on any issue raised by these proceedings. We are satisfied that we can determine the sector issue for the purpose of these proceedings, on the basis of the material before us and the consultation with the parties.

28. There is no obvious reason to us why the issue of sector, since it has been raised in the context of this jurisdiction dispute, cannot be determined within the course of these proceedings. The Labourers assert that the Board is obliged to hold a hearing with respect to the sector issues because of the provisions of section 153 of the Act. They also assert that such a hearing must be held after notice to all affected parties. They rely in this on a number of previous decisions of this Board in which the Board has adjourned other proceedings (such as grievances or jurisdiction dis­putes) in order to give notice to affected parties of a sector dispute, and has held a hearing with respect to a sector dispute.

29. It is important to note that the context of these previous Board decisions is quite differ­ent from our current context. There were no provisions previously for the resolution of jurisdiction disputes after a consultation with the parties. There was no question that once a complaint regard­ing a jurisdiction dispute was filed with the Board, the Board would determine it after an oral hear­ing. In some cases, it was more efficient to hear the sector dispute separately, since it was possible that the determination of that issue would assist in narrowing the scope of other issues in the main proceeding. However, in all cases, the Board was operating within the traditional framework of oral hearings.

30. The Labour Relations Act, however, has been recently and specifically amended to pro­vide for greater flexibility to the Board in determining jurisdiction disputes. We have set out above the effect of these amendments. We read the provisions of section 93(1.2), permitting the Board to make any interim or final orders with respect to a jurisdiction dispute after consultation with the parties, to permit the Board also to make any findings necessary to these interim or final orders, including any findings on sector.

31. In the case before us, the parties were put on notice by the Labourer's Reply to the complaint that a sector issue would be raised. The Board ruled on February 11 that this issue would be dealt with in the course of the jurisdiction dispute if necessary. The parties were provided with the opportunity to file further materials with respect to the sector issue. Further, they were provided with the opportunity, and specifically invited to make full representations with respect to all issues raised by the jurisdiction dispute, including the sector issue, at the consultation.

32. With respect to the issue of notice, we are satisfied that in the circumstances of this case, it is unnecessary to give notice of the sector issue raised to any additional parties. We note that all of the contractors who have performed the work which is specifically in dispute and which the Labourers assert is work in the landscaping sector, have been sent copies of Board correspon­dence on these matters, including notice of these proceedings and copies of all decisions to date.

33. Additionally, we emphasize that the provision of notice to other parties of Board pro­ceedings serves two distinct functions. Where the other parties are clearly affected parties in the sense of having a direct legal interest in the outcome of the proceedings, the Board must, in the interests of natural justice ensure that those parties have the opportunity to participate in the pro­ceedings. On the other hand, there may be cases where other parties do not have a strictly legal interest, but are invited to participate in a proceeding. In these latter cases, the Board may act out of a desire to ensure in the interests of labour relations stability, and particularly where the dispute involves a major project with many participants, that its rulings have general application. Thus, in a number of cases which have involved sector determinations, the Board has applied a broad con­cept of "affected parties" to include all parties which have a direct connection to a job site.

34. However, the Board has also, on occasion, determined the issue of sector in the course of making a determination with respect to a dispute between parties, without requiring notice of the proceedings to be given to a broader group of interested persons: see Ecodyne Limited, [1979] OLRB Rep. July 629 and Four Seasons Drywall, [1990] OLRB Rep. May 525.

35. In the case before us, we are satisfied that all parties which have a direct legal interest in the outcome of this case have been provided with notice of the proceedings. We are also satisfied that we ought not to apply a broader definition of affected party to extend this notice to other par­ties. Although there may be cases where the issues raised ought to be determined with broader participation from the labour relations community, we do not find it necessary in the case before us to turn what is essentially a narrow disagreement over work assignment into a more generalized forum. Weighing the desirability of resolving the jurisdiction dispute without further delay (and we also take into account the fact that the notice issue was not raised until June 1), and the benefits of deciding some of the issues raised in this dispute in a more generalized fashion, we opt to resolve the dispute for the parties before us. We therefore decline to adjourn these proceedings to provide notice to other parties.

36. Turning to the merits of the sector issue~ we are satisfied~ having regard to all the mate­rial before us and the representations of the parties, that the work in dispute is work in the ICI sec­tor of the construction industry. Even assuming for the present purposes there is a distinct sector known as the "landscaping sector", we are not satisfied that it extends to include the work in dis­pute. It does not appear to us that the concrete forming work in relation to the outdoor structures is materially different from the concrete forming work in relation to the building to which it is related. The types of materials used, skills required and problems and solutions to be dealt with are also similar. It may be, as the Labourers assert, that there are unique problems for concrete forming where its purpose is to sustain plant life. Yet it is also true that any concrete forming on an ICI project must take into account the particular needs of the structure being formed. Further, concrete planters are only one element of the work in dispute, much of which does not relate to plantings.

37. Further, part of the work is physically situated on or connected to the ICI structure. For instance, on both the Ellis-Don project and the Jackson-Lewis projects, many of the structures are located on an underground garage serving the building. Other aspects of the work are directly con­nected to the building. It is all work which was done in conjunction with the erection of an ICI building and which came under the overall responsibility of the general contractor responsible for the erection of the building. To the extent that it is relevant to look to "characteristic relations with employees" in deciding sector issues, the materials indicate that on many other similar projects, the work has been done by ICI formwork contractors. Sometimes the analogous work forms part of the overall formwork package for the project, and on occasion it has been done under a separate contract for formwork in relation to outdoor structures. As well, on some ICI projects, fewer in number than the above, the formwork has been part of a contract which also included general landscaping work. We are satisfied that, overall, concrete forming work on outdoor structures on ICI projects has tended to be organized in the same or similar way as work on the ICI structure itself.

38. Although it is not necessary for us to decide, we are also satisfied, in any event, that there is no sector of the construction industry known as the "landscaping sector" which can be dis­tinguished from the other sectors by virtue of its work characteristics. Section 119 of the Act defines "sector" for the purpose of the construction industry provisions as:

……a division of the construction industry as determined by work characteristics and includes the industrial, commercial and institutional sector, the residential sector, the sewers and watermains sector, the roads sector, the heavy engineering sector, the pipeline sector and the electrical power systems sector.

36. It is important to note that section 119 does not include "landscaping" as a sector. It is also relevant to note that the definition does not appear by its words to be exhaustive, since it states that the notion of sector "includes" those sectors enumerated. The Labourers rely on the wording of section 119 to request that this Board find that landscaping is a sector of the construc­tion industry for the purposes of the Act, and that the work in question is in the landscaping sector.

37. In the more than twenty years that this definition has been in Act, there have been no cases before the Board where the Board has found a sector in addition to those enumerated. There have also been no cases where the Board has been required to decide whether the list of sectors in section 119 is exhaustive. The Board was referred to only one case in which a party has argued for the recognition of a new sector under the Act, The Ontario Erectors Association, [1973] OLRB Rep. Aug. 444, which was an application for accreditation. The panel in that case did not deter­mine whether the list of sectors found in section 119 is exhaustive, but found that the evidence and representations did not support the establishment of a new sector. Among other things, the Board stated:

5.... The Board is not satisfied that the "work characteristics" of the proposed structural steel and mechanical erection sector are unique to such a sector. Moreover, the proposed sector would encompass a part of most if not all of the sectors specifically named in section 106(e). Having regard to foregoing considerations, the interveners have justifiable reasons for their apprehensions as to the results which they anticipate would flow were the Board to recognize structural steel and mechanical erection as a sector. Accordingly, in all the circumstances the Board is not prepared to acquiesce in the request of the applicant and establish a structural steel and mechanical erection sector. The Board therefore further finds that the unit of employers for which the applicant is seeking accreditation is not an appropriate unit of employers for collective bargaining.

38. In the case before us, as well, it is unnecessary to decide whether the list of sectors in section 119 is exhaustive. We are not satisfied having regard to the materials before us and the rep­resentations of the parties that there is a division of the construction industry distinguishable by its work characteristics, known as the "landscaping sector". It is clear to us that there are a number of contractors who perform work similar to the work in dispute under the terms of a common collec­tive agreement with the Labourers which the Labourers call the "Landscaping Agreement" which, parenthetically, also appears to cover work outside of the construction industry. On the other hand, it is also clear that there are a number of contractors who have performed similar work using members of the Carpenters under the terms of the Carpenters provincial collective agreement.

39. Further, the collective agreement on which the Labourers rely to support their assertion that there is a distinct pattern of collective bargaining relationships in the "landscape sector" is lim­ited in geographic area to two Board areas, 8 and 18. If the Labourers seek recognition of a sector which is confined to these two Board areas, this would conflict with the province-wide application of the term "sector" in section 119. If the Labourers seek recognition of a province-wide landscape sector, we find this collective agreement to be less than compelling grounds to justify this.

40. The Labourers state that the "sihgle most influential determinant of landscaping con­struction is the creation of an environment that can support plant life." However, much of the work that the Labourers seek to characterize as landscaping work has nothing to do with plant life, including the construction of outdoor seating areas, plazas, retaining walls and other outdoor struc­tures. We are also aware that structures that hold plant life can be constructed within a building as well as outside a building.

41. Some of the functions and materials associated with the proposed sector are common to work in many of the existing sectors, such as the work functions and materials used in the concrete forming in dispute. As we have stated, no doubt some of the functions and materials can be consid­ered quite special, such as the placing of plants. It would be tautological, however, to rely on this to establish a distinct sector, inasmuch as at all stages of construction on a project, there might be certain work functions or materials which can be considered unique to that stage.

42. Ultimately, we would not find it wise to further fragment construction projects by carv­ing out the "outside construction" from the project as a whole, just as the Board in The Ontario Erectors Association, supra, found it unwise to carve out structural steel and mechanical erection as a sector. Given the absence of a clear and unambiguous practice in the construction industry to treat this work as a discrete sector, in our view, the creation of a new sector as proposed would be disruptive and divisive.

43. We therefore are not convinced that there is a distinct sector known as the landscaping sector to which the work in dispute belongs.

The Jurisdiction Dispute

44. Having regard to our findings regarding the work in dispute, and in particular our find­ing that it is work in the ICI sector of the construction industry, we are satisfied that the Labourers and the Carpenters are party to a trade agreement in which they acknowledged that such work is to be performed by members of the Carpenters. As the Board has stated before (see among others, Pigott Construction Limited [1992] OLRB Rep. June 748), "peace agreements" between unions over work jurisdiction issues will be accorded great weight by the Board.

45. Turning to other factors which the parties addressed in their representations during the consultation, we are satisfied that both trades have the skills to perform the work in question. Both trades are involved in the carpentry portion of concrete forming construction work, as recognized by their trade agreement.

46. Both the Labourers and the Carpenters have filed extensive documentation to support their claim that both area practice and employer practice support the assignment of the work in dispute to their members. To the extent that the general contractors who are the applicants in this matter have control over the ultimate assignment of the work to a particular trade by having con­trol over the choice of sub-contractor, we turn to a review of the practice of these contractors. To a greater or lesser extent, it appears that all of the applicants have in the past had analogous work performed by way of subcontracts with formwork contractors who have employed members of the Carpenters to perform the work. Further, Ellis-Don has on a number of projects performed similar work itself using members of the Carpenters under the terms of the Carpenters ICI collective agreement.

47. Other than the projects in dispute, the materials filed by the Labourers indicate that Ellis-Don has sub-contracted a small amount of concrete forming work on one project to a lands­caping contractor as part of a package of work, which was then performed by members of the Lab­ourers. As well, the materials contain reference to work including concrete forming which was sub­contracted by Jackson-Lewis on two occasions to a landscaping contractor, which in turn employed members of the Labourers. There is also reference to concrete formwork in connection with lands­caping on another Jackson-Lewis project, but it is not possible to determine whether the work was in connection to ICI or residential construction.

48. The companies that actually performed the work were Underground Construction Ltd. ("UCL"), THM Construction Ltd. ("THM") and Woods Johnson and Associates Inc. ("Woods Johnson"). All of these companies have had notice of these proceedings, have been sent copies of the Board's decisions on this matter to date, and none of them chose to participate in the consulta­tion. From the materials before us, as clarified at the consultation, it appears that UCL performed the work using members of the Labourers applying the terms of a sewer and watermain collective agreement. Some of the work contracted to THM was further sub-contracted to a contractor which performed it applying the terms of a road builder's collective agreement.

49. It is not clear which collective agreement was applied to the performance of the work by THM, as the materials indicate that it became bound to a collective agreement covering landscape work as of October, 1992.

50. Woods Johnson was at the time of the performance of its work, bound to a collective agreement with the Labourers covering landscaping work.

51. The materials before indicate that THM has employed members of the Labourers in concrete formwork in connection with what is described as "landscaping construction" on a num­ber of ICI projects. There is no evidence regarding any prior practice by UCL in connection with analogous work. The Labourers have also submitted documentation with respect to a number of projects on which Woods Johnson employed members of the Labourers; however, only one of these appears to involve concrete forming, and this work is on a residential project.

52. The Carpenters do not have collective agreements with THM, UCL or Woods Johnson.

53. With respect to the practice by other contractors, it appears that on many projects, both ICI and residential, the Labourers have performed concrete forming in relation to outdoor con­struction. Without exception, the concrete forming work appears to have been part of a larger package of work which is generally described in the materials as "landscaping construction", and which includes site grading, excavating and backfilling, earth retaining walls, and planting of gar­den material.

54. The Carpenters have done an extensive amount of similar work on ICI projects. On some jobs, the materials indicate that the work was included in the total forming package. On other jobs, the work was under a separate contract from the forming for the main structure. On most, it is not indicated. The Carpenters have also submitted photographs showing the work on the majority of projects on which they rely.

55. In general, it is fair to conclude that most of the analogous work which is done by the Labourers is with respect to non-ICI construction, usually residential. Taking the practice evidence as a whole, it appears that the Labourers are regularly engaged in landscaping work which requires concrete forming. However, it also appears that when the work is in connection with the construc­tion of a new structure in the ICI sector, the work has to a significantly greater degree been per­formed by members of the Carpenters.

56. With respect to the factor of economy and efficiency, the materials and submissions of all the parties was rather sparse. The Labourers assert that the work is of an intermittent nature and therefore it would be more economic and efficient to have it done by members of the Labour­ers who are on the job performing all aspects of what it terms landscaping construction. The Car­penters assert simply that economy and efficiency dictate the assignment of the work to members of the Carpenters.

57. The applicants did not file any materials with the Board for the purposes of the consul­tation. In their complaint, which started this proceeding, they support the assignment of work that was made and requested that the Board confirm this assignment. They do not rely (in their com­

plaint) on any arguments regarding economy and efficiency to support this assertion. Nevertheless, at the consultation, they submit that the factor of economy and efficiency is an important one for the determination of these cases.

58. The applicants seek to lead evidence to establish the "commercial realities" that led to the manner in which the work in dispute was contracted. The applicants agree that the work in dis­pute is sometimes included in the general forming package for the construction of the building, and is sometimes included in a separate package for outside construction. Counsel submitted that it is a question of "convenience" as to which prevails on a particular project, and therefore which trade will be employed to do the work. Implicitly, the applicants suggest that they ought to have the dis­cretion to determine in each case whether it is more convenient to sub-contract the work to a con­tractor who will employ the Labourers, or to a contractor who will employ the Carpenters, or indeed, to have the work performed by their own forces.

59. The only basis for the assertions regarding economy and efficiency by the applicants were the representations of counsel at the consultation. The applicants have chosen not to file any material in support of these assertions, nor set out in written form the specifics of these assertions. Having regard to the Board's detailed requirements for the filing of any documents and the partic­ularization of any facts on which parties intend to rely in a jurisdiction dispute proceeding, we decline to give much weight to this submission or to hear evidence in support of it.

60. Having regard to the written materials before us and the representations of the parties, we are satisfied that the factor of economy and efficiency favours neither trade clearly in its claim to the work in dispute in these cases.

Decision of the Board

61. Having regard to all of the factors which the Board normally takes into account in the determination of jurisdiction disputes, which include collective bargaining relationships, trade agreements, employer preference, area practice, skills and economy and efficiency, we are satis­fied that the Carpenters ought to be assigned the work in dispute.

62. To summarize our findings, we are satisfied that the trade agreement on which the Car­penters rely support its claim to the work in dispute in that the Labourers and the Carpenters have agreed that the carpentry portion of concrete forming work in relation to an ICI project shall be performed exclusively by members of the Carpenters, with specific exceptions which are not appli­cable here.

63. We have found that other factors such as skills, economy and efficiency and employer preference favour neither trade definitively.

64. We have found that the factor of area practice favours the Carpenters, in that they have been employed on significantly more projects to perform the carpentry portion of concrete forming work in relation to outdoor structures built as part of a project for the erection of a building in the ICI sector.

65. We therefore direct that the work in dispute be assigned to members of the Carpenters.