[1996] OLRB REP. JANUARY 26
2961-95-JD Labourers' International Union of North America, Local 506, Applicant v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America and Rapid Forming Inc., Responding Parties
BEFORE: Lee Shouldice, Vice-Chair, and Board Members W. N. Fraser and G. McMenemy.
APPEARANCES: John Moszynski and Armando Camara for the applicant; J. James Nyman and Jack Slaughter for the responding party, Carpenters and Allied Workers Local 27; Bruce Binning for Rapid Forming Inc., the General Contractors Section of the Toronto Construction Association, and the Concrete Formiuig Association of Ontario.
DECISION OF THE BOARD; January 12, 1996
1This is an application respecting a jurisdictional dispute which is brought before the Board pursuant to section 99 of the Labour Relations Act, 1995, S.O. 1995, c.1 ("the Act"). The application was filed with the Board on November 7, 1995. The parties filed extensive briefs with the Board and a consultation was held with the parties on January 2, 1996.
2Rapid Forming Inc. ("the employer") is engaged as a concrete forming contractor and is currently constructing a parking garage in Brampton, Ontario. The employer has been subcontracted the concrete forming work by Inzola Construction, the general contractor for the project. The employer is bound to both the Carpenters' Provincial I.C.I. collective agreement and the Labourers' Provincial I.C.I. collective agreement. The employer is a member of the Concrete Forming Association of Ontario.
3The work in dispute is described somewhat differently by the parties but is, in essence, the placement and rough assembly of shoring frames and the placement and rough assembly of column forms on this project. The employer has assigned the work on this project to a composite crew of Labourers and Carpenters. In short, the Labourers have been cleaning and oiling the shoring frames, screwjacks and u-heads, and then moving those components as well as stringers, joists, plywood and bracing to the point of assembly or erection. At that point, members of the Labourers have been placing the screwjacks, bracings and u-heads on the shoring frames, and then have been placing stringers in the u-heads and rough tightening the nuts, bolts and washers, securing the stringers to the u-heads. The precise layout, alignment and blocking of the shoring frames is then performed by members of the Carpenters union. The Carpenters assert that its members should be assigned the work consisting of the placement of screwjacks, bracings and u-heads on the frames, and the placement of the stringers and the rough tightening of the nuts, bolts and washers referred to above.
4With respect to the placement and rough assembly of column forms, the Labourers have been assigned the particular tasks of dropping into place the prefabricated rebar cage and column forms, and the rough placement of a shoring jack against the column form. The employer has assigned Carpenters to build the various templates required, and members of the Carpenters also perform the precise plumbing and straightening of the columns and the shoring jacks, as well as the bolting of the column form. The Carpenters assert that its members should be assigned the above work which has been assigned to members of the Labourers' union.
5When determining a jurisdictional dispute application, the Board takes into account a number of criteria including (but not limited to) the various collective bargaining relationships affecting the work in dispute, the skills and training required to perform the work, considerations of economy and efficiency, the employer's practice, and the area practice.
6With respect to the latter criterion, the materials filed by the parties respecting the practice in Board Area 8 were somewhat unsatisfactory and at best establish only that there is no consistent area practice in the assignment of the work in dispute. As noted earlier, both the Carpenters and the Labourers have collective bargaining relationships with the employer. Both agreements can be read to claim jurisdiction over the work in dispute, although the Carpenters' Provincial Agreement appears to more clearly capture the full extent of the work in dispute.
7The materials filed with the Board suggest that both members of the Labourers and members of the Carpenters have the necessary skills and training to safely perform the work in dispute.
8There were no materials placed before the Board to suggest that the assignment of the work in dispute to the Carpenters on site would lead to a more economical or efficient work place. The Labourers asserted that the work as assigned was being performed in a fast and efficient manner; the Carpenters questioned the economy and efficiency of the work assignment but did not explain why the assignment as made was in any way uneconomic or inefficient in relation to an assignment which would be made to its members.
9In our view, the most significant material before the Board is that of the employer's past practice. It is evident that the employer has, in Board Area 8, performed seven projects in the I.C.I. sector of the construction industry since December, 1985 (not including the project in question). The latest of the seven projects was performed in October, 1989. Of these seven projects, two were parking garages without any meaningful difference to the project in question. In each of these seven projects the employer assigned the work in dispute to a composite crew of Carpenters and Labourers. No grievance was filed by the Carpenters' relating to the work assignment on either parking garage project (or any of the other five projects), although it acknowledges a bargaining relationship with the employer since December, 1985. This criterion strongly favours assignment of the work in dispute to the Labourers as part of a composite crew.
10By way of correspondence dated January 8, 1996, counsel for the Carpenters wrote to the Board "to make it clear again that in the past on prior projects, as pleaded in our brief, the Employer assigned the work in dispute to members of Local 27. If the issue of Employer practice is pivotal to the disposition of the Application then we request a full hearing with evidence tendered under oath in this regard". It is to be noted here that the Labourers' brief filed with the Board contained a list of projects upon which it was asserted that the employer had previously assigned work similar to the work in dispute to a composite crew of carpenters and labourers. In the Carpenters' initial brief, it was asserted that there was no relevant employer practice or preference, as the employer had not been engaged in formwork construction for several years. In a supplementary brief, it is asserted that on six of the projects listed (including the two parking garages) the work was "assigned in a manner consistent with the Carpenters' claim" and the Carpenters state that it is prepared to call evidence to that effect.
11Since January, 1993, the Board has dealt with jurisdictional disputes by way of consultation rather than by hearing, as is permitted by section 99 of the Act. The Board's procedures involved in the disposition of these disputes are created in such a manner as to minimize the length and cost of litigation. The Board has made it quite clear that in the typical jurisdictional dispute proceeding the application will be determined by reference to the material contained in the briefs filed with the Board (see, for example, I.B.E.W., Local 1788, Board File 3415-95-JD, as yet unreported, December 6, 1995). There are no circumstances here suggesting that the Board ought to entertain oral evidence on the issue of employer practice. Accordingly, it is inappropriate to entertain the evidence desired to be called by the Carpenters.
12Having considered all of the material before the Board, and the representations of the parties made at the consultation, we are not satisfied that the assignment of the work in dispute was improper and confirm the assignment made by the employer.