Ontario Labour Relations Board

[1997] OLRB REP. MAY/JUNE 385

0496-96-G; 0497-96-G; 0498-96-U; 1450-96-JD Labourers' International Union of North America, Local 1089, Applicant v. Doug Chalmers Construction Limited, Responding Party v. United Brotherhood of Carpenters and Joiners of America, Local 1256, Intervenor; Doug Chalmers Construction Limited ("Chalmers"), Applicant v. Labourers' International Union of North America, Local 1089 ("Labourers") and United Brotherhood of Carpenters and Joiners of America, Local Union 1256 ("Car­penters"), Responding Parties v. Teamsters Local 880 and International Union of Operating Engineers, Local 793, Intervenors

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members F. B. Reaume and J. Redshaw.

APPEARANCES: A.M. Minsky and Robert Leone for Labourers' International Union of North America, Local 1089; G.F. Luborsky and D.H. Chalmners for Doug Chalmers Construction Limited; N.L. Jesin and R. Carlton for United Brotherhood of Carpenters and Joiners of America, Local 1256; N.L. Jesin for Teamsters Local 880; no one appearing for I.U.O.E. Local 793.

DECISION OF G. T. SURDYKOWSKI, VICE-CHAIR, AND BOARD MEMBER J. REDSHAW; May 8, 1997

1. The name of the responding party in Board File Nos. 0496-96-G, 0497-96-C and 0498-96-U is amended to read: "Doug Chalmers Construction Limited".

2. Board File Nos. 0496-96-C and 0497-96-G are grievances in the construction industry which have been referred to the Board under section 133 of the Labour Relations Act. 1995. Board File No. 0498-96-U is a complaint under section 96 of the Act. Board File No. 1450-96-JD is a jurisdictional dispute complaint under section 99 of the Act.

3. A hearing was convened on October 2, 1996. On agreement of the parties, consideration of the two grievances and the section 96 complaint was deferred pending the disposition of the jurisdic­tional dispute complaint and the Board proceeded to hold a consultation with respect to the jurisdictional dispute complaint. It was readily apparent that the crux of the dispute between the parties concerned work jurisdiction. Accordingly, the Board considered it appropriate to proceed in the manner agreed to between the parties.

4. The work in dispute in the jurisdictional dispute complaint is the work of tending carpenters working on scaffolding, and the supervision of such work at various (it appears five) projects at Suncor, Imperial Oil, Shell Oil and Nova (Petrosar) in Sarnia in 1996.

5. The applicant employer ("Chalmers") is a major scaffolding contractor in the Sarnia area. There is a five year history to this dispute, and Chalmers asks not only that the Board affirm the correctness of the particular work assignments in issue, but also that the Board resolve the broader issue of future assignments by declaring that none of the Labourers, Carpenters and Teamsters or Operating Engineers Unions, or any combination of them, have the exclusive right to perform the work in dispute, and that it has the discretion to assign the work as it considers appropriate.

6. It is easy to understand an employer's (or a trade union's) desire for a final resolution of an issue which has vexed it for some time. However, it is not clear that the Board is able to make the kind of order sought by Chalmers in that respect. In any case, the Board is not inclined to do so.

7. Prior to the proclamation of the current Act, the jurisdictional dispute provisions in the legislation contained a provision which specifically empowered the Board to make an order regarding, future jobs. Section 93(2) of the Bill 40 Act, for example, (which Act was repealed and replaced by the current, Bill 7, Act) provided that:

93.- (2) An order may provide that it is binding on the parties for other jobs then in existence or undertaken in the future in the geographic area that the Board considers appropriate.

Prior to that, a similar provision, which had been in the Act for many years, provided that:

91.-(2) The Board may in any direction made under subsection (1) provide that it shall be binding on the parties for other jobs then in existence or undertaken in the future in such geographic area as the Board considers advisable.

There is no analogous provision in the current Act. Accordingly, it is far from clear that the Board continues to have jurisdiction to make orders regarding other or future jobs (although the Board's decisions presumably continue to have the persuasive or educational value they have always had with respect to subsequent or other assignments of the same work).

8. Even when the Board had jurisdiction to make orders regarding other or future work assignments, it did so rarely, generally in circumstances in which there was an established pattern of jurisdictional disputes concerning a particular and clearly identifiable "work" in a specific area involv­ing a specific employer, and where it seemed likely that there would be further jurisdictional disputes concerning the assignment of that particular work by that employer in that geographic area. This approach of the Board to its jurisdiction to make orders concerning future work assignments was consistent with the Board's view that the jurisdictional dispute complaint provisions empower it to inquire into complaints concerning the assignment of particular or discrete packages of work rather than "work" more generally defined (see, for example, Foster Wheeler Limited, [1989] OLRB Rep. Feb. 128; application for judicial review dismissed [1990] OLRB Rep. May 630 (Divisional Court); Acco Canadian Material Handling, [1990] OLRB Rep. Sept. 915; Commonwealth Construction Com­pany, [1991] OLRB Rep. June 742).

9. This approach is also consistent with the Board's general approach to jurisdictional dispute complaints, an approach which not only focuses on the particular work in dispute, but which also considers the specific parties to the dispute, the work assignment practice(s) of the employer involved, and the general work assignment practice in the appropriate geographic area. The Board is sensitive to the need to determine each dispute on its particular merits, and also that work practices can evolve and change over time. As a result, except in extraordinary circumstances (as described above), it would generally not be appropriate for the Board to extend its determination of a jurisdictional dispute complaint beyond the particular case before it.

10. Further, it is difficult to imagine a situation in which the Board would make an order permitting an employer to assign work to whomever it wishes (at least as between 2 or more construction trades). To do so would in effect excuse the employer from recognizing the pattern of work jurisdiction established in the construction industry, or from responding to legitimate jurisdictional claims, and from the jurisdictional dispute complaint provisions in the Act. It is not appropriate that the work assignment decisions of any employer be immune to challenge in circumstances where the legislation contemplates that there are different work jurisdictions and that these work jurisdictions will conflict from time to time, and which provides a mechanism for resolving jurisdictional dispute complaints.

11. Accordingly, the Board will limit itself to determining the particular work in dispute in this case.

12. It is neither possible nor appropriate to describe an exhaustive list of factors which are considered, or to construct or mechanically apply some formula or checklist in that respect. Notwith­standing this, the Board has developed a general approach, which has withstood the test of time and which has been accepted in the construction industry, involving the use of several broad factors which the Board will consider in determining a jurisdictional dispute complaint. These factors were first set out in Canada Millwrights Ltd., [1967] OLRB Rep. May 195, as follows:

• trade union constitutions and collective agreements

• trade agreements between the competing parties

• area practice

• employer practice and preference

• safety, skill and training

• economy and efficiency

For almost thirty years, the Board's approach to jurisdictional dispute complaints has involved an assessment of these six factors. However, the Board's jurisprudence also demonstrates the Board's willingness to consider anything which it is satisfied is relevant to the determination of a particular jurisdictional dispute complaint. Accordingly, the six factors identified as aforesaid do not constitute an exhaustive list. Nor does the order in which the factors are listed or considered indicate the weight which may be given to any of them in a particular case. Indeed, in a given case some factors will be of little or no assistance, while in another case they or one of them may be determinative. For example, in recent years, the work jurisdictions asserted by construction trade unions in their respective constitutions and collective agreements have become so broad that they are often of little assistance, particularly when the work in dispute is not part of the core of a trade's work jurisdiction, and, as is generally the case, the employer concerned is bound to collective agreements which cover the work in dispute with all of the competing trade unions.

13. Because of the historical development of the division of work in the construction industry on a craft or trade basis, and the overlap between the construction trades and the work jurisdictions which they assert, the Board has recognized that collective bargaining relationships, by themselves, will generally not be determinative of a jurisdictional dispute complaint. Consequently, while a trade union which has no applicable collective agreement with the employer which assigned the work in dispute is likely to have a difficult time having the assignment altered, a trade union which has a collective agreement with the assigning employer will not necessarily be successful in fending off a claim for work by a trade union which has no collective agreement with that employer (Brunswick Drywall Limited, 11982] OLRB Rep. Aug. 1143; Pigott Construction Limited, [1992] OLRB Rep. June 748 ("Pigott #2"); and see Groff & Associates Ltd., [1994] OLRB Rep. July 846 with respect to the difficulties which a trade union without a collective agreement will face), so long as the issue is one of work jurisdiction and not one of representation (Simcoe Mechanical Contracting Ltd., [1982] OLRB Rep. Sept. 1352).

14. Similarly, although it will equally often not be the case, a single factor may be determinative of a jurisdictional dispute complaint. Work jurisdiction trade agreements provide one example of the factor to which the Board has given great weight (especially in recent cases: Pigott #2, supra; Ellis­ Don Limited, [1993] OLRB Rep. Nov. 1130, the various decisions in Kora Mechanical Inc., [1992] OLRB Rep. June 740 and decisions dated March 3, 1993, April 26, 1993, June 14, 1993, July 12, 1993 and November 8, 1993, all unreported; but see Groff & Associates Ltd., supra, where the Board declined to give effect to a trade agreement in circumstances where the established area practice in the relevant geographic area was inconsistent with the trade agreement).

15. Similarly, although the Board has determined jurisdictional dispute complaints in favour of a trade union which area practice did not favour, (Simcoe Mechanical Contracting Ltd., supra; K-Lute Maintenance & Construction Limited, [1979] OLRB Rep. Dec. 118S), area practice has more and more often been a determining factor (Ilena Construction Co,npany Limited, [1974] OLRB Rep. Nov. 775; Acco Canadian Material Handling, supra). Indeed, in Electrical Posser Systems Construction Association, [1992] OLRB Rep. Aug. 915, the Board observed that "it is the rare and unusual complaint in which the Board does not attach significant and primary significance to area and employer past practice ...", and also that "... the real crux of most jurisdictional disputes revolves around the two past practice criteria." The emphasis on past practice is reflected in the time and energy devoted to the practice factors in jurisdictional dispute proceedings before the Board.

16. The Board has developed its approach to construction industry jurisdictional disputes having regard to the nature and organization of the construction industry (on both the employer and trade union sides), which is predominately on a "local" geographic basis which tends to mirror the geographic jurisdictions of construction local trade unions. Of course, the Board does not blindly adhere to single (local) area practice, In an appropriate case, the Board will look to an "industry practice" which is specific to the particular work in dispute but in a broader geographic area (Foster-Wheeler Limited, supra), to jurisdictions of competing trade unions which extend beyond the established Board areas or which are not congruent (Commonwealth Construction Company; supra). Cases such as this should not be taken to be anything more than the exceptions to the general rule which they are. They merely underline the Board's willingness to take special circumstances into account in particular cases, and to approach jurisdictional dispute complaints on a case specific basis.

17. Turning to the jurisdictional dispute in this case, we begin by observing that neither the Teamsters nor the Operating Engineers have made any claim to any of the particular work assignments in dispute in this case (indeed neither filed a brief as required by the Board's Rules). Their participation has been prompted by the broad net which the employer seeks to cast, and the potential concern which this raises with respect to their respective general work jurisdictions. However, the Board has deter­mined that it will limit its consideration to the particular dispute(s) before it. The nature of tending work is such that there could, for example, be a dispute between the Labourers and the Teamsters or Operating Engineers over the assignment of certain kinds or components of tending work. This complaint raises no issue of work jurisdiction as between either the Teamsters or Operating Engineers, and either the Labourers or the Carpenters with respect to the particular tending work in dispute or tending work in general, and nothing in this decision should be construed to be a comment on the distribution of tending work other than that specifically in issue in this complaint. Although it is not explicit in the materials, the focus of the jurisdictional dispute in this case is the tending and supervision of tending work from the base of the scaffolding (as indeed counsel for the Labourers specifically stated in his oral representations at the consultation).

18, Chalmers claims to be the largest supplier of scaffolding in the Sarnia area. It asserts that it and another employer, Steeplejacks Services, together perform approximately 90 per cent of all scaffolding work in Lambton County. The 90 pet' cent figure is not agreed to by the Labourers, but it is conceded that Chalmers, which is a general contractor, is an important scaffolding contractor in the Sarnia area. It is clear from the materials that Chalmers does a lot of scaffolding work in Lambton County.

19. In 1992, the Labourers filed a jurisdictional dispute complaint concerning Chalmers' assign­ment of work described as "all work involved in the handling (from base of scaffolding), erection and dismantling of scaffolding", which the Labourers asserted should have been performed on a composite crew basis, to the Carpenters (Board File No. 2214-92-JD). In that case, the Labourers' asserted that the work in dispute ought to have been assigned in accordance with the scaffolding trade agreement between the two unions; that is, on a two to one (carpenters to labourers) composite crew basis.

20. In a four paragraph decision issued on January 29, 1993 in that case, the Board made the following final order: "the erection and dismantling of scaffolding shall be assigned to carpenters with labourers tending.".

21. In another Board decision also dated January 29, 1993, the Board made an identical order in a jurisdictional dispute complaint in Board File No. 2213-92-JD, a jurisdictional dispute complaint between the same carpenters and labourers' locals herein regarding the assignment of the same work in dispute as in Board File No. 2214-92-JD by a different employer,

22. The Board gave no explanation or reasons for either order. Three things are nevertheless apparent from these decisions. The Board rejected the Labourers' claim to the erection or dismantling of scaffolding, the Board accepted the Labourers' claim to tending work from the base of the scaffolding, and the Board either rejected or decided not to deal with the concept of any particular ratio of carpenters to labourers in that respect.

23. Subsequently, Chalmers and the Labourers entered into a Memorandum of Understanding dated April 7, 1993 as follows:

Memorandum of Understanding

Between:

Chalmers Construction Ltd.

And

Local Union 1089

In an effort to interpret the Labour Relations Board decision (OLRB) of January 29th, 1993, file 2214-92-JD re-Jurisdictional Dispute between Carpenters Local 1256 and Labourers Local 1089 on the handling (from base of scaffolding) erection and dismantling of scaffold, the parties hereby agree as follows:

The Company will take the following criteria into consideration in the assignment of work

1. Cost and efficiency

2. productivity of work crews

Subject to the foregoing and any overriding jurisdiction of any trade, the following outlines the general manner in which scaffolding will be tended, erected, and dismantled.

1. The erection and dismantling of scaffold will be assigned to Carpenters, with Labourers tending.

2. It is agreed that it is Labourers jurisdiction to establish all scaffold material stock piles, handling from stockpiles which includes carrying by hand, loading and off loading, tying on/or off of scaffold material to point of erection.

3. It is agreed that at the base of the scaffold Labourers will hand and/or tie on scaffold materials and the Carpenters will draw up from top of the scaffold.

Both parties agree to act in good faith in the application of this document and agree that should any dispute arise in its interpretation the parties will meet immediately to resolve same.

In consideration of the foregoing the Union hereby agrees to advise the Ontario Labour Relations Board that its grievance dated December 13, 1991 (Board File No. 3453-91-G) will be adjourned sine die, and that its grievance (sic) dated October 29. 1992 (Board File No. 3259-92-G) and November 4. 1992 (Board File No. 3260-92-G) are withdrawn.

Dated: April 7, 1993.

For the Company For the Union "Doug Chalmers") ("Robert Leone") Doug Chalmers Robert Leone

The Carpenters, which participated in the proceedings in Board File No. 22 14-92-JD (and also in Board File No. 2213-92-JD), were not a party to this memorandum, and, by letter dated April 8, 1993, expressly took issue with it to the extent that the Memorandum is "inconsistent with and contrary to. not only the Board's decision but the past and current practice of Doug Chalmers Construction and the handling, erection and dismantling of Scaffolding."

24. Predictably, the dispute did not end there. In that respect, Chalmers pleads in its brief in this complaint that:

25. After the Board's decision of January 29, 1993. Chalmers continued assigning work to Carpen­ters and Labourers on the same basis that it had always assigned work on scaffold projects; namely. Carpenters had exclusive jurisdiction to erect and dismantle scaffolds, with Labourers tending on those specific projects of sufficient size and/or complexity where such tending functions by Labourers was determined necessary in Chalmers' opinion, and with Carpenters, Labourers. Team­sters. Operating Engineers or any combination thereof used for tending purposes where the specific scaffolding job in issue made such assignments appropriate.

26. Consistent with Chalmers' past practice. Chalmers did not assign any tending work to Labourers on a number of scaffold projects where such tending work was not necessary given the size and nature of the project concerned. Accordingly, as indicated in the supplementary documents in the Grievance Documentation already before the Board. Chalmers utilized Carpenters only on scaffold projects, with the Carpenters tending to their own needs on a regular basis after January 29, 1993 (as had been the practice in the past). Such practice was consistent with the Memorandum of Agreement entered into between Chalmers and Local 1089 dated April 7. 1993 (reproduced at Tab 7 in the Grievance Documentation).

27. The Labourers submit that that is precisely the problem; namely, that Chalmers has contin­ued to act as it always has, without regard to the Board's decision in Board File No. 2214-92-JD or the April 7, 1993 Memorandum of Understanding between them.

28. In this complaint, Chalmers' position is essentially that tending work associated with the erection or dismantling of scaffolding is not within the exclusive jurisdiction of the Labourers, or indeed of any trade or trade union, and that it is properly assigned to members of either the Carpenters, Teamsters, Operating Engineers or Labourers unions depending on the nature of the particular scaffold­ing work and Chalmers' considerations of economy and efficiency. Chalmers submits that "tending" is a flexible work component which does not lend itself to a rigid jurisdictional demarcation. It expresses a featherbedding" concern because it asserts that construction labourers would really have little or nothing to do, and it submits that it would be uneconomical and inefficient for the company to use members of the Labourers to tend the carpenters who erect or dismantle its scaffolding.

29. The Labourers say that it does not claim a specific ratio and that it recognized the need for flexibility, but that the result of the Chalmers approach to scaffolding work is that its members have been entirely cut out of the tending work to which the Board has already recognized they are entitled,

30. Let us remember what we are talking about here: essentially the manual handling of scaffolding materials up to or down from the carpenters who are either erecting or dismantling scaffolding, as the case may be. Although this work undoubtedly requires careful attention and some skill, members of either trade union can quite capably perform it. The factor of skill, training and safety favours the jurisdictional claim of neither trade union.

31. It is common ground that the applicable collective agreements relevant to the jurisdictional dispute are the Labourers' and Carpenters' provincial agreements, and that Chalmers is bound by both. Both collective agreements cover the work in dispute. So do both union constitutions.

32. Nevertheless, there is a difference between the jurisdictional claims of the Labourers and Carpenters as expressed in their respective constitutions and provincial agreements. It is apparent that tending work associated with many other trades, including carpenters, is part of the core of the work jurisdiction claimed and exercised by construction labourers represented by the Labourers' union. On the other hand, tending work is not at the core of the work jurisdiction of the Carpenters' union, although it is work which is necessarily incidental to and not far from that core jurisdiction. Accordingly, the collective agreement/constitutional factor slightly favours the claim of the Labourers.

33. The employer and area past practice materials filed by the parties indicate several things: first, that the work of tending carpenters who are erecting or dismantling scaffolding is an identifiable and severable component of that work; second, that there has been a lot of scaffolding work performed both generally, and specifically by Chalmers in Lambton County; and third, that there is no apparent (on the face of the materials) single completely consistent practice of either employing or not employing construction labourers to tend carpenters engaged in erecting or dismantling scaffolding in Lambton County, again either generally or by Chalmers. It appears that as a general matter, whether and how many labourers are assigned to tend carpenters in that respect depends on the nature and size of the scaffolding job. Clearly, construction labourers have commonly been employed to tend carpenters doing scaffolding work, both generally and by Chalmers himself. Equally clear, there are a significant number of instances in which no construction labourers have been assigned to tend such carpenters.

34. The Board's first impression was that the parties had perhaps failed to focus on the particular work in dispute in the work assignments which prompted the grievances which led to this jurisdictional dispute complaint. However, these parties are all experienced in jurisdictional dispute complaints, and all of them were represented by experienced labour relations counsel. Because of this, and because no one suggested that the Board should hear evidence or is otherwise unable to decide the issue on the basis of the materials filed, the Board reviewed the materials again.

35. As we did so, it struck us that the parties had spent no time on the types of scaffolding, on the materials used, or on the environment in which scaffolding was erected or dismantled. On the contrary, in one way or another in their employer and area practice materials, the parties have focused entirely on the number of carpenters engaged to perform the erection or dismantling. The Labourers' materials focus on the number of carpenters and the number of labourers relative thereto. The Carpen­ters' materials focus on erection and dismantling work, which is not part of the work in dispute in this complaint, but to the extent that these materials relate to tending work they do so on the basis of the number of carpenters (or apprentices). Chalmers' materials deal with the issue of the number of hours worked by carpenters, relative to the number of hours worked by labourers. There appears to be no reason why this cannot be translated into roughly equivalent numbers of carpenters and labourers. Accordingly, it appears that this is also the appropriate way to approach the dispute in this case.

36. Chalmers filed extensive materials concerning its own past practice. However, its materials for the years prior to 1993 are incomplete in that they consist of selected months from each previous year. There is nothing which suggests why the particular months (which are not the same for each year) were selected, or what they are representative of. However, the materials for the period January 2, 1993 to April 27, 1996 appear to be complete and reveal the following:

Total number of jobs - 2394

Number of jobs where no labourers used - 454

(19% of total)

Number of jobs where no carpenters used - 29

(0.01 of total)

Number of jobs where number of carpenters hours roughly equal number of labourers hours (i.e. 1:1 ratio) -299

(12.5% of total)

Number of jobs where carpenters hours were roughly double the number of labourers hours (i.e. ratio 2:1 carpenters to labourers) - 910

(38% of total)

Number of jobs where carpenters hours were roughly triple the number of labourers hours (i.e. ratio 3:1 carpenters to labourers) - 442

(18.5% of total)

Number of jobs where carpenters hours were 4 times or more the number of labourers hours (i.e. ratio 4:1 or greater) - 260

(10.9 cof total)

Note: Number of jobs in 4:1 ratio was 82 or roughly 0.03% of the total.

Accordingly, in 29.9% of Chalmers' jobs between January 2, 1993 and April 27, 1996, the company used either no labourers or fewer than one labourer for every 4 carpenters. The largest single ratio, which also appears to be the dominant area practice was 2:1 carpenters to labourers, and on 69% of its jobs during that period Chalmers used at least one labourer for every three carpenters.

35. However, the materials do not suggest a ratio correlation. That is, they do not suggest that there is necessarily a correlation between the number of construction labourers Chalmers required or used and the number of carpenters on the job, except that on over 80% of its jobs Chalmers used at least one labourer.

36. The materials suggest that tending work has generally been assigned to labourers on even the smallest scaffolding jobs, but that more than one labourer has not been generally assigned except on relatively large jobs. Even though Chalmers has assigned no labourers to tend carpenters on nearly 20% of its scaffolding jobs, it is difficult to discern any pattern to this. For example, Chalmers has used labourers on many jobs involving less than 10 hours of carpenters work. On the other hand it has not used any labourers on a number of jobs involving more than 10 hours carpenters work. Further, outside of Chalmers itself, there is no evidence which suggests an area practice which excludes labourers from tending carpenters engaged in erecting or dismantling scaffolding in Lambton County,

37. In the result, the Board is satisfied that even on Chalmers' own past practice, the Labourers have established a claim to the tending work in dispute. In our view, the factors of employer and area practice both favour the claim of the Labourers.

38. The "trade agreement" which was before the Board in Board File Nos. 2213-92-JD and

2214-92-JD, and which is before the Board in this complaint is labelled as a "Scaffolding Agreement". Although the document filed with the Board bears no signature, no one suggested that this is not an agreement which, it appears, was entered into by Carpenters Local 1256 and Labourers' Local 1089, the parties herein, on December 17, 1974. It provides that:

SCAFFOLDING AGREEMENT

between

Carpenters Local 1256 and Labourer's Local 1089

Agreement reached on Dec. 17, 1974 by

Jack Piggott, Business Manager. Local 1256

Rocco D'Andrea, Business Manager, Local 1089

Orfea Iacobelli, Business Agent. Local 1089

#1 Labourer will build stock piles as designated by management -

#2 Carpenters and Labourers will work together in hauling and labourers will assist in hoisting and erecting of scaffolding in ratio of 2 to 1, i.e. 2 Carpenters, 1 Labourer.

#3 Dismantling will be done the same way and same ratio.

NOTE That the ratio is basically 2 to 1. Carpenters to Labourers, if any variation to this ratio is needed it can only be changed by agreement between the two locals and contractor involved.

This agreement appears to be directed to the erecting and dismantling of scaffolding, and although it does not use the word, also to the tending work associated with it. However, as we have already observed, the Board has already declined to give effect to this trade agreement insofar as it purports to recognize the Labourers' claim to erection or dismantling work. Further, although the Board has recognized the Labourers' claim to tending work, the Board has not applied a ratio in that respect.

39. Turning to Chalmers' economy and efficiency concerns, in most cases, an employer is in the best position to assess the most economical and efficient way for it to structure its work force. However, employers do not always make an accurate or correct assessment in that respect, in part because they are not always entirely objective in their approach to such questions. Further, jurisdictional disputes are about work jurisdiction, not about economy and efficiency.

40. The fact is that collective bargaining rights and collective agreements inevitably affect the manner in which employers operate, particularly in the construction industry which is divided along craft or trade lines (see paragraphs 13 and 16 above). Indeed, as the Board pointed out in Ellis-Don Limited, [1988] OLRB Rep. Dec. 1254 (application for reconsideration dismissed [1989] OLRB Rep. Mar. 234), construction industry employers and trade unions have tended to organize themselves along trade lines. In the result, the focus of construction collective agreements tends to be on the employment and representation of employees engaged in particular trades. That is, construction collective agreements tend to define the employees who are in the bargaining unit to which the collective agreement applies on the basis of the work they perform. In other words, work jurisdiction is the "stuff' of construction bargaining rights and collective agreements. Jurisdictional disputes arise because the work jurisdictions of the various construction trades are not sharply defined and tend to overlap.

41. In order to give proper effect and meaning to bargaining rights in the construction industry, considerations of economy, efficiency or employer preference cannot be allowed to operate as some sort of "trump" factor. On the contrary, they must give way to other relevant considerations, particularly to the collective agreement factor, particularly when the area practice is consistent with the collective agreement and a trade union's core work jurisdiction is in issue.

42. Accordingly, considerations of economy and efficiency (and employer preference as ex­pressed through other than the employer's practice) will generally be determinative only when an assessment of all other relevant factors favours neither of the competing trade unions. That is, it is a kind of "tie-breaker".

43. What we are left with in this case then is this:

(a) the constitution/collective agreement factor slightly favours the claim of the Labourers;

(b) the skill, ability and safety factor is neutral;

(c) the area and employer past practice factors favour the claim of the Labourers;

(d) an agreement between Chalmers and the Labourers which recognizes and favours the Labourers' claim;

(e) a trade agreement which it appears the Board has declined to apply in two earlier cases, one of which involved the same employer and compet­ing trade unions as herein;

(f) factors of economy, efficiency and employer preference which it appears ought not be applied.

44. Accordingly, on the basis of the materials filed, the Board is satisfied that the Labourers do have a tending (of carpenters engaged in scaffolding work) work jurisdiction in Lambton County. The difficulty which arises is ascertaining the extent of that jurisdiction. In that respect, the Board is satisfied that in Lambton County (the relevant geographic area), both Chalmers and scaffolding contractors have assigned a labourer to tend carpenters on the vast majority of scaffolding jobs and have thereafter been permitted and have exercised considerable discretion with respect to assigning additional labourers to tend carpenters performing scaffolding work. The Board is satisfied that the result in this complaint should reflect this.

45. In that respect, the Board considers it appropriate to require that Chalmers assign at least one construction labourer to tend the carpenters on all of the scaffolding jobs in issue, and to permit Chalmers to add additional labourers to tend carpenters as it considers appropriate.

46. Turning to the issue of the supervision of the work of tending carpenters working on scaffolding, Article 10.2 of the "Local Union Schedule for Local 1089 - Sarnia" to the Labourers' provincial agreement provides that:

10.02 Whenever there is more than one (1) labourer on a project, there shall be a working labour foreman or a non-working labour foreman on the same project. With eight (8) labourers or more on a project, no labour foreman shall be a working foreman. No labour foreman shall supervise more than ten (10) labourers. With fifteen (15) labourers on a project, a general foreman shall be added. No general foreman shall supervise more than five (5) foremen. With fifty (50) labourers on a project, an area general foreman shall be added. All supervision mentioned above will be included within the number specified.

47. The collective agreement obligation is not determinative of the jurisdictional dispute con­cerning the assignment of the supervision of tending work. With respect, it is far from obvious that tending work being performing by construction labourers should be supervised by construction labour­ers, except perhaps where there is a sufficiently large number of construction labourers employed to perform such work. Further, the employer and area practice evidence before the Board, suggests that the supervision of labourers tending carpenters is not done by other members of the labourers. Nor is it obvious why a single labourer can be adequately supervised by the same individual who supervises the carpenters on the job, but where there are two labourers, one of them has to perl'orm any necessary supervision of the other. Further, since the Board has concluded that only one construction labourer is mandatory, requiring at least one of any additional labourers to be a working or non-working foreman is likely to reduce the number of discretionary labourers and therefore the work opportunities for labourers.

48. Consequently, while there may be some threshold number of labourers performing tending work which it' exceeded will require Chalmers to have a working or non-working labour foreman on the job to supervise them, none of the jobs in issue in this case seems to justify this, and the nature of the materials before the Board is such that we are not inclined to venture any opinion in that respect in this case.

49. In the result, the Board does not find it appropriate to interfere with that part of the work assignments herein.

50. The Board therefor orders Doug Chalmers Construction Limited to assign one construction labourer who is a member of Labourers' International Union of North America, Local 1089 to each of the scaffolding jobs in issue. Doug Chalmers Construction Limited is entitled to either add or not add additional such construction labourers to any of the scaffolding jobs as it considers appropriate.

DECISION OF BOARD MEMBER F. B. REAUME; May 8, 1997

1. With the greatest of respect I must dissent from the majority decision in this case although it places the least possible infringement on Chalmers' right to assign tending work based on cost and efficiency in connection with the erection and dismantling of scaffolding.

2. The Memorandum of Understanding between the applicant union and the respondent Chal­mers acknowledges the need for economy and efficiency (cost and efficiency) with regard to the understanding of the work assignments that follow.

3. In assigning work from January 2, 1993 to April 27, 1996, Chalmers utilized labourers in more than eighty percent of the jobs performed. As shown in paragraph 34, Chalmers used labourers in varying ratios to carpenters for scaffold erection and dismantling presumably based on the characteris­tics of the job and efficiency. Indeed there is no suggestion that Chalmers excluded labourers in a discriminatory manner with respect to carpenters, operating engineers, or teamsters.

4. There is no argument that tending lies at the core of the work performed by labourers. This core work was established many years ago because the work could generally be performed more economically and efficiently using "a common labourer" rather than a journeyman tradesman to perform the more menial work, However, there was never any intention of' using labourers in this capacity when there was not enough work to justify a labourer doing the tending. It became more difficult to justify over the last several years when the labourers rate moved considerably closer to the tradesman's rate on a percentage basis,

5. The fact that some employers do not always make an objective decision based on economy and efficiency in assigning work should in no way mitigate against another employer attempting to do so. Indeed economy and efficiency are a valid part of the jurisdictional assessment. This is the core of management rights in the assignment of work where there are conflicting claims by two or more parties. If the assignment is not objective, the employer will face the consequences.

6. The majority decision tends to ignore the Memorandum of Understanding between the parties and the management rights clause in the agreement in favour of the jurisdictional claims of the Labourers. It now requires Chalmers to use at least one labourer to tend on all scaffolding erection and dismantling jobs regardless of cost and efficiency but allows Chalmers to determine if any additional labourers need be used as he sees fit.

7. In principle, I find myself in dissent even though the impact may be minimal. This is not a case of the respondent trying to avoid unions but a case of assigning the work efficiently to those unions having contractual relations with the respondent and overlapping jurisdictions.