United Brotherhood of Carpenters and Joiners of America, Local 1256 v. Doug Chalmers Construction Limited, 1998 CanLII 18327

Ontario Labour Relations Board

[1998] OLRB REP. JULY/AUGUST 594

4462-97-JD United Brotherhood of Carpenters and Joiners of America, Local 1256 ("Carpenters"), Applicant v. Doug Chalmers Construction Limited ("Chalmers") and Labourers' International Union of North America, Local 1089 ("Labourers"), Responding Parties

BEFORE: G. T Surdykowski, Vice-Chair, and Board Members J. G. Knight and G. McMenemy

APPEARANCES: N.L Jesin and R. Carlton for the applicant; G.E Luborsky and Doug Chalmers for Doug Chalmers Construction Limited; A.M. Minsky and Robert Leone for Labourers' International Union of North America, Local 1089.

DECISION OF THE BOARD; July 2, 1998

I Introduction

1. This is a proceeding under section 99 of the Labour Relations Act, 1995 concerning a dispute over the assignment of work; that is, a jurisdictional dispute.

2. The dispute between the parties concerns the assignment of tending work associated with the erection and dismantling of scaffolding. The particular dispute which led to this complaint arises out of grievances filed by the Labourers and referred to the Board under section 133 of the Act concerning the assignment of scaffolding work at several petro-chemical plant locations in Lambton County. Board File No. 1167-97-G is a grievance dated June 18, 1997 alleging a failure or refusal to employ members of the Labourers to tend carpenters on scaffolding work at Nova Corunna, contrary to the Labourers' provincial agreement. Board File Nos. 1168-97-G, 1169-97-G, 1170-97-G, 1171-97-G and 1459-97-G are identical grievances dated May 21, 1997, June 24, 1997, June 27, 1997, June 16, 1997, July 23, 1997 and September 26, 1997 respectively; alleging the same breach of the Labourers' provincial agreement at H.C. Starck Bayer and Nova Corunna, Imperial Oil, Nova (Sarnia), Imperial Oil Plant #3, and Cabot Canada, respectively.

3. But the dispute is broader and less contained than those particular grievances or assignments of work. There is a history to the dispute between the parties which goes back to 1991, and which includes two previous jurisdictional dispute proceedings at the Board, one of which raised substantially the same issue which is before the Board in this case.

4. Grievances referred to the Board in 1991 (Board File No. 2315-91-G) and 1992 (Board File No. 3453-91-G) alleged that Chalmers' failure to assign "labourers work" on scaffolding erected or dismantled by Suncor constituted a violation of the Labourers' provincial agreement. These led to the jurisdictional dispute proceedings in Board File No. 2214-92-JD. A differently constituted panel of the Board disposed of that matter by decision dated January 29, 1993. The Board described the dispute in that case as follows:

5. The nature of the dispute can be briefly summarized as follows. Doug Chalmers Construction Limited ("Chalmers") was involved in performing certain maintenance work on what we will refer to as the Suncor project at Sarnia, Ontario. The work in dispute can be described as the handling (from base of scaffolding), erection and dismantling of scaffolding at the Suncor project. Chalmers assigned the erection and the dismantling of scaffolding to members of the United Brotherhood of Carpenters and Joiners of America, Local 1256. Local 1089 contends that this work should have been assigned on a composite crew basis to labourers and carpenters.

The Board determined that "the erection and dismantling of scaffolding shall be assigned to carpenters, with labourers tending."

5. Also by decision dated January 29, 1993, the same panel of the Board dealt with another jurisdictional dispute (Board File No. 2213-92-JD) involving a different employer (Catalytic Mainte­nance Inc.) in which the issue was substantially the same. The Board issued an identical final order.

6. This is significant only because of what happened next. First, the Labourers', without the participation of or notice to the Carpenters, entered into a Memorandum of Understanding with each of Delta Catalytic Industrial Services Ltd. (which presumably is the same or a related entity to Catalytic Maintenance Inc.), and another with Chalmers. Although similar, these agreements are not the same.

7. The agreement with Delta Catalytic is dated March 19, 1993 and provides as follows:

MEMORANDUM OF UNDERSTANDING

BETWEEN:

Delta Catalytic Industrial Services Ltd.

and

Labourers International Union of North America (LIUNA) Local 1089 - Sarnia

In an effort to interpret the Labour Relations Board decision (OLRB) of January 29th, 1993, file # 2213-92-ID re Jurisdictional Dispute between Carpenters Local 1256 and Labourers Local 1089 on the handling (from base of scaffolding), erection and dismantling of scaffolding.

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

1. Cost and efficiency

2. Productivity of work crews

The Company makes the following assignments:

The following outlines the general manner in which scaffolding will be handled, erected and dismantled:

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

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

3. At the base of scaffold, it is agreed that Labourers will hand and/or tie on scaffold materials and the Carpenter will draw up from the top of the scaffold.

In those job circumstances where the above outlined assignment is not practical and efficiency is compromised the following procedure will apply.

1. On any low level scaffolding where the job requires only two people, the handling, erection and dismantling will be performed on a composite crew basis. (Carpenters/Labourers) Should the job require additional manpower either in the handling or the erection/dismantling portions, those additional forces will be determined and supple­mented by the employer.

2. This assignment supersedes all previous company correspondence [sic] pertaining to scaffolding.

Signed this 19th day in March, 1993

("lllegible Signature") ("Robert Leone")

FOR THE COMPANY FOR THE UNION

8. The Agreement with Chalmers is dated April 13, 1993 and provides that:

Memorandum of Understanding

Between:

Chalmers Construction Ltd.

And

Local Union 1089

In an effort to interpret the Labour Relations Board decision (OLR.B) 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, handing 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 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")

9. Unfortunately, neither the jurisdictional dispute proceedings in Board File No. 2214-92-JD, nor the subsequent April 13, 1993 agreement between the Labourers and Chalmers resolved the dispute between the parties regarding the assignment of tending work associated with the erection or dismantling of scaffolding. Since the Carpenters were not party to the April 13, 1993 agreement, this is not particularly surprising. Further grievances (Board File Nos. 0496-96-G and 0497-96-G) and an application under section 96(7) of the Act (Board File No. 0498-96-U) were filed by the Labourers.

10. These led directly to another jurisdictional dispute complaint in Board File No. I 450-96-JD which was considered and determined by another panel of the Board, which the Vice-Chair herein also chaired. A decision issued in that matter on May 8, 1997 (reported as Doug Chalmers Construction Limited, [1997] OLRB Rep. May/June 385). That jurisdictional dispute concerned two things:

(a) the assignment of the work of tending carpenters working on scaffolding at five "projects" at Suncor, Imperial Oil, Shell Oil and Nova (Petrosar) in Sarnia;

(b) the supervision of that tending work.

The erection and dismantling of scaffolding was not in issue in that case.

11. By majority decision in Doug Chalmers Construction Limited, supra, the Board directed Chalmers to assign at least one construction labourer to tend carpenters on all scaffolding "jobs" in issue, and specified that the employer could add additional labourers to tend carpenters as it considered appropriate. The majority of the Board declined to disturb the assignment of tending supervision which Chalmers had made. The Board also declined Chalmers' request to make directions or orders affecting future assignments of work.

12. This still did not end the matter, and within months the grievances referred to in paragraph 2, above, were delivered, against the backdrop of Chalmers and the Labourers accusing each other of all manner of things, including refusing to accept or comply with the Board's decision in Doug Chalmers Construction Limited, supra.

13. When the parties came before the Board with respect to the various outstanding grievances, it was apparent that the real dispute between them continued to focus on the assignment of tending work associated with the erection or dismantling of scaffolding. The parties agreed to give the Board an opportunity to try to mediate the dispute instead of plunging ahead with litigation. To facilitate this process, and to decrease the number of distractions, the Board ordered a moratorium of all "Chalmers' litigation", without prejudice to the right of any of the parties in that respect. This moratorium expired on June 1, 1998.

14. The mediation process was unsuccessful. The issues were clarified and positions crystal­lized, but a settlement could not be achieved. The Board therefore directed that the dispute enter a litigation mode, with the Carpenters as the nominal applicant to facilitate the process. The Board was hopeful that further mediation opportunities might be revealed, but that did not occur.

15. The Board dealt with some preliminary and procedural matters on April 30, 1998 (see decision dated May 4th, 1998), and subsequently convened a consultation on May 11, 1998. Because of what had occurred in the consultation and after the decision in Doug Chalmers Construction Limited, supra, the Board considered whether there was any issue with respect to which it wished to hear evidence or further representations. By a decision dated May 14, 1998, the Board advised the parties that it had concluded that no evidence or further representations were necessary.

II Decision, Part 1: Positions of the Parties

16. The parties, particularly Chalmers and the Labourers, spent some time arguing the meaning of the Board's decision in Doug Chalmers Construction Limited, supra. The Labourers ended up in effect asserting that what it was seeking was an affirmation of that previous decision. That is, the Labourers seek the same result, although in a "clarified" form.

17. The employer's understanding of the decision in Doug Chalmers Construction Limited, supra, is manifestly wrong, and frankly, difficult to understand, given the company's own written representations and supporting materials in that proceeding. (The parties agreed that all materials filed in both of the early jurisdictional dispute proceedings in which they were also involved are also properly before the Board in this case.)

18. To the extent that Chalmers' position concerning the meaning of the Board's decision in Doug Chalmers Construction Limited, supra, suggests that the company relied upon the management Board Member's dissent in that case, it should not have, and this case demonstrates why it is dangerous to rely on a dissent as an aid to interpreting a decision of the Board.

19. A dissent is in itself a separate decision. It is a decision which disagrees, in whole or in part' with the decision of the majority in the case. It indicates that the dissenter has come to a different decision than the majority, and that s/he considers the majority decision to be incorrect, at least in part. A dissent generally sets out the area(s) of disagreement with the majority decision, and the decision which the dissenter has concluded is the appropriate one. However, the majority decision is the decision of the Board and it speaks for itself. Whatever a dissent may say about it, it is not generally appropriate to use a dissent as an aid to interpreting a majority decision. A dissenting decision or opinion is just that, and it cannot operate to affect, "put a gloss on", or give meaning to the majority/Board's decision.

20. In his dissenting decision in Doug Chalmers Construction Limited, supra, Board Member Reaume states that he dissents "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." That was his view of the effect on the company of the Board's decision. The Board's decision does not indicate that the Board intended or considered that to be the effect of its decision.

21. In any event, Chalmers apparently determined that the Board's decision in Doug Chalmers Construction Limited, supra, did not require the company to assign a construction labourer to tend carpenters on every scaffold. Instead, Chalmers gave itself the benefit of its own very liberal interpreta­tion of the decision, and appears to have carried on very much as it had before. The Labourers, on the other hand, interpreted that decision as requiring the employer to assign at least one construction labourer to tend carpenters on each individual scaffold.

22. With respect, the Labourers' understanding of the Board's decision in Doug Chalmers Construction Limited, supra, is correct.

23. First of all, in paragraph 5 of Schedule "B" of the Brief filed by Chalmers in that previous proceeding, the company itself asserted that a job consists of an individual scaffold as follows:

……As a matter of industry practice. through a recognized tagging procedure, each scaffold is considered an individual job. A scaffolding job may be as simple as one or two Carpenters with no Labourers performing all of the work on the specific job, or it may require several Carpenters with or without Labourers or other trades groups performing tending functions. In response to the grievances and complaints of Local 1089. Chalmers specifically states:

(a) that with respect to the "tending carpenters" dispute. for reasons of economy and efficiency, and consistent with area/industry practice as well as Chalmers' past practice, Chalmers does not utilize the services of Labourers in all tending work, but rather, given the diversity of scaffold jobs, the Carpenters themselves may be assigned to tend to their own needs (or. in some cases members of the Teamsters Union and/or Operating Engi­neers perform tending functions); and

[emphasis added]

24. Second, the only reasonable interpretation of the materials filed by Chalmers in support of its position in the earlier case, and specifically the documents at Tab 6 of the Company's Supplementary Documents Book #4, is that these present individual scaffolds; that is, that a scaffolding job consists of one scaffold. It is quite conceivable that Chalmers could, as its materials in that case suggested, have erected 2,394 scaffolds over the approximately 3 1/3 years the materials covered. It is equally inconceivable that Chalmers had that many projects, some significant number of which consisted of more than one scaffold, during the same period.

25. It is apparent that the Board adopted the employer's own position regarding what a job was, and used the employer's own pleadings and documents in arriving at its (majority) decision. It is clear that the Board drew a distinction between "projects", at which more than one scaffold could be erected and dismantled, and individual scaffolding 'lobs" (see and compare paragraph 4 to paragraphs 34 to 36 in Doug Chalmers Construction Limited, supra). While an individual scaffolding job can constitute a project, it is not necessarily the case that every project consists of a single job. Indeed, the materials suggest the contrary; that is, that a single scaffolding "project" may consist of any number of individual scaffolding 'lobs". In the context of this jurisdictional dispute, "project" and 'job" are not equivalent terms.

26. Fourth, even the dissent in Doug Chalmers Construction Limited, supra, accepted or adopted the majority's approach. In paragraph 6, for example, Board Member Reaume wrote that the Board decision "... now requires Chalmers to use at least one labourer to tend all scaffolding erection and dismantling jobs [not "projects"] regardless of cost and efficiency ..." [emphasis added].

27. The Labourers are absolutely right. The Board's decision in Doug Chalmers Construction Limited, supra, required Chalmers to assign at least one labourer to tend carpenters on every individual scaffold.

28. However, we do not accept the Labourers' submission that that is determinative of the jurisdictional dispute herein. It is worth recalling that the Board in Doug Chalmers Construction Limited, supra, expressed concerns regarding the focus and sufficiency of the materials before it in that case. At paragraphs 32 and 33 of the majority decision, the Board wrote that:

29. 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.

30. 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.

31. In this proceeding, the parties have tried to address those concerns, and also the questions asked by the Vice-Chair sitting alone herein in paragraph 4 of a decision dated April 1, 1998 issued in the context of this proceeding. Still, the positions of the parties in this proceeding closely mirror their respective positions in Doug Chalmers Construction Limited, supra, except that it appears that Chalmers and the Labourers have switched positions on what constitutes a scaffolding 'job". It is now the Labourers who say that each scaffold is a job, while Chalmers takes the clearly untenable position that a job is all of the scaffolding work required under a contract.

32. Further, Chalmers, as it did in the earlier case, again pleads for finality, and that it be given a broad discretion with respect to assigning the work in dispute. The two unions also seek closure, but they disagree with Chalmers and each other on how that can be achieved.

33. To the extent that the employer seeks a decision which will be determinative of other or future work assignments, we reiterate the Board's comments in paragraphs 6 to 9 of the May 8, 1997 decision in Doug Chalmers Construction Limited, supra. Having said that, it is worth noting that although as a technical matter the Board may no longer have the specific jurisdiction to make directions concerning work assignments which are not specifically before it, as a practical matter, the Board's determination of a jurisdictional dispute will have the same effect such a decision has always had. The effect of a Board determination of a jurisdictional dispute will generally not be limited to the work assignment(s) in dispute in the particular case. The Board's jurisdictional dispute decisions will continue to have the impact on subsequent work assignments or cases that they have always had. Accordingly, where a jurisdictional dispute complaint between the same parties concerns an assignment of work which is the same, or substantially the same as one which has previously been determined by the Board, a party which seeks a different result is likely to encounter significant difficulty in that respect, unless it can persuade the Board that there is either good reason to doubt the correctness of the previous determination, or that there is some cogent reason to think that the previous determination should not be considered to be dispositive of the matter. This is particularly so, where the previously determined jurisdictional dispute is relatively recent, and involved the same parties in the same geographic area.

34. In this case, the parties all ask the Board to take a second look at the same jurisdictional dispute which was before the Board in Doug Chalmers Construction Limited, supra, only a year ago. The parties have had every opportunity to consider the earlier decision and its effect, and to re-state their positions in light of that earlier determination. Any party which seeks to bring the same dispute before the Board after the Board issues its decision in this case will therefore have to explain to the Board why it should be given other than short shrift. In that respect, as a purely technical matter, it may be that the concepts of res judicata or issue estoppel do not apply where a different assignment of work is being disputed, but it is far from clear why the Board could not take an analogous approach where the work assignments in question concern the same work, the same parties, and the same geographic area.

35. Nevertheless, having regard to the peculiar and unique history of the jurisdictional dispute between the parties, and because the previous proceedings have not resolved the real dispute, the nature and extent of which has been clarified for all concerned in this proceeding, the Board considers this to be one of those rare cases in which it is appropriate to take a "second look".

III Decision, Part 2: Merits

34. We see no reason to doubt the correctness of the Board's reasoning and conclusion in paragraph 10 of the decision in Doug Chalmers Construction Limited, supra, that it would be inappro­priate for the Board to clothe an employer with an absolute and unfettered discretion to assign work as it pleases (assuming that the Board even has the jurisdiction to do so). This is not to say that an employer like Chalmers should not have some discretion, but rather that its discretion is limited by a reconciliation of the competing work jurisdictions claimed by the (in this case, two) trade unions. In the construction industry work jurisdictions are the concrete expression of the bargaining rights which unions hold.

35. The Board's recitation of how it approaches jurisdictional disputes has achieved almost "boilerplate" status. Nevertheless, it is worth repeating paragraphs 12 to 16 of Doug Chalmers Con­struction Limited, supra, if only for ease of reference:

36. 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, [1982] 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-Line Maintenance & Construction Limited, [1979] OLRB Rep. Dec. 1185), area practice has more and more often been a determining factor (Ilena Construction Company Limited, [1974] OLRB Rep. Nov. 775; Acco Canadian Material Handling, supra). Indeed, in Electrical Power 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 minor 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. We emphasize that this accurately describes the Board's general approach. But as even that general approach specifically recognizes, the Board stands ready to consider whether a particular case merits a modified or different approach. This appears to be such a case.

18. The materials filed in Doug Chalmers Construction Limited, supra (which we have already noted are also before the Board in this case) included a substantial amount of information concerning area and employer practice. It is apparent that these materials are incomplete. Similarly, the additional practice materials filed in this proceeding do not include all of the available information in that respect. The Labourers, for example, have specifically stated that they have further practice materials available.

19. However, as we indicated in our May 14, 1998 decision, the Board is satisfied that it is appropriate to determine this matter without evidence, or further materials or representations from the parties.

20. Two things are apparent from the materials and representations which are before the Board.

21. It may be possible to categorize scaffolds into classifications delineated according to the size and type of scaffolding, and the environment in which scaffolding work is being performed. However, it is equally apparent from the materials that there would be a large and potentially unlimited number of such classifications. This suggests that there is little to be gained by approaching this jurisdictional dispute by emphasizing area or employer practice. Indeed, the failure of the Board's decision in Doug Chalmers Construction Limited, supra (which took that approach) to resolve the dispute demonstrates that there is little practical or predictive value to such an approach.

22. The approach which the parties have taken to the dispute in this proceeding suggests that they recognize this, at least implicitly. This would explain why the Board still has virtually nothing before it regarding the size or type of scaffolding or the environment in which the scaffolding work which gave rise to the specific grievances which are at the root of this proceeding, notwithstanding the Board's comments in paragraphs 32 and 33 of the Doug Chalmers Construction Limited, supra decision, and the parties avowed attempt to address those concerns in this case. It would also explain why notwithstanding the debate in which they engaged concerning the utility of the various statistics included in the materials, the parties all pointed to these in different ways and suggested that the numbers provided support their respective positions.

23. That is, the parties have implicitly recognized that it cannot be said that "a scaffold is a scaffold is a scaffold", that it is difficult to compare scaffolding jobs (i.e. one scaffold to another), and that it is therefore futile to attempt to resolve the jurisdictional dispute between the two trade unions on the basis of the particular scaffolding work with respect to which the various grievances have been filed. Instead, the parties have taken a more general approach to the jurisdictional dispute, an approach which recognizes the generic nature of the problem, and which cries out for a concomitant generic resolution.

24. With respect, we consider such a general approach to be the appropriate one in this jurisdictional dispute. The dispute clearly transcends individual jobs, and a determination of the dispute which is restricted to specific individual jobs would be both of little use to anyone, and would do virtually nothing to actually resolve the jurisdictional dispute between the two unions. On the other hand, the more general approach is more practical, more directly addresses the real dispute between the parties, and therefore makes more labour relations sense. It will certainly make it more difficult for any party which wishes to continue the dispute to do so, and will provide a clear structure within which the parties can (and hopefully will) work to repair the damage that this dispute has done to their relationship.

25. That being the case, the Board is satisfied that making further inquires into the area practice factor, for example, would not be a useful exercise. It is unlikely that the historical practice could be broken down by the size, type and work environment of scaffolding work in any useful way, or at all. Second, it seems unlikely that any further practice materials would reveal anything different from the materials which are already before the Board. Third, it is apparent that there have been developments in scaffolding "technology" or systems which raise questions concerning the cogency of past practice information which is more than a few years old. Fourth, the more fundamental or generic nature of this jurisdictional dispute, and the fact that a general approach appears to be the most appropriate one to take, makes the detailed area practice approach which is adopted in many jurisdictional disputes proceedings less useful in this case.

26. Upon further consideration, and in light of the further materials filed herein, the statistical approach taken in Doug Chalmers Construction Limited, supra, appears to have dubious value except as an indicator of general trends and something against which the other factors can be measured.

27. To repeat, the work in dispute, or what this jurisdictional dispute is all about, is the tending of carpenters who are erecting or dismantling scaffolding. The ordinary meaning of the verb "to tend" is "taking care of, looking after" something or someone. So what we are dealing with is the work of construction labourers "looking after" the needs of carpenters engaged in erecting or dismantling scaffolding. There was a dispute in this case about what construction labourers can or should be able to do in that respect. This raises questions of economy, efficiency, ability and safety. It also raises questions concerning what tending in this context consists of, where it begins and ends, and where the work jurisdictions of construction labourers and carpenters intersect, as they clearly do. This is one of those difficult cases in which there is no obvious bright line between the two trade jurisdictions.

28. Chalmers continues to take the position that it ought to be able to organize and assign the work in dispute in the manner in which the company considers to be the most economical and efficient. In that respect, Chalmers says that it is neither necessary nor appropriate to require the company to employ construction labourers to tend carpenters on every individual scaffold, particularly those which are erected or dismantled by crews of two or three carpenters. Indeed, the company submits that its competitive position will be severely eroded if it is required to do so. Chalmers submits that there is a "self' or "trade tending" component to the work carpenters do on scaffolding, and that such self-tending is sometimes the only tending work which is required, particularly under the 1S09002 scaffolding program in systems scaffolding which is becoming the method and material of choice in its operations.

29. Chalmers asserts that the Labourers "minimum manning" approach is both overly simplistic, and failed to recognize the evolution and realties of modern scaffolding construction. Such an approach, says the company, would result in significant "feather bedding" for construction labourers at the company s expense, and ultimately to the detriment of all parties. Further, Chalmers submits that the Board's jurisdiction is limited to determining who the work in dispute should be assigned to, and not how many employees should be assigned to do it. The Carpenters' position of course is very much aligned to Chalmers, although the Carpenters is leery of giving the company the broad discretion it seeks. Ultimately, the Carpenters' position can be simply stated: the company should be required to assign tending work to construction labourers when there is sufficient work to occupy a labourer full time, and that what counsel referred to as "incidental bits" of tending work should be performed by the Carpenters themselves as part of the scaffolding work they perform.

30. Both Chalmers and the Carpenters point out that carpenters are the more expensive employ­ees (in terms of wages and benefits), so that this is not a case of a trade or trade union trying to buy jurisdiction.

31. Although the Labourers begin by saying it is happy with the Doug Chalmers Construction Limited, supra, decision, ultimately it wants more. It submits that all tending work, however small in quantity should be assigned to construction labourers because that is part of the core jurisdiction the construction labourer. However, apparently unable to conceive another response to the "feather bed­ding" concern expressed by the company, the Labourers suggest that the construction labourers assigned to tend the carpenters could perhaps assist or participate in the erection or dismantling work in order to fill any time not occupied with tending work. That is not a possible outcome in this case. Erection and dismantling work is not part of the work in dispute and it is not otherwise "up for grabs". As a result of the decisions in Board File Nos. 2213-92-ID and 2214-92-JD, the Labourers have no claim to erection or dismantling of scaffolding assigned by Chalmers in Lambton County (Board Area #2).

32. The work in dispute is the tending of carpenters for erecting or dismantling scaffolding. "Tending" consists of looking after the needs of carpenters in that respect (see paragraph 46, above). In the context of this case, any handling of material from the delivery drop point to the point of use by the Carpenters is tending. The handling of material after the point of first use by the carpenters may or may not be tending. If the handling beyond the point of first use is integral to the carpenters' erection or dismantling functions it is either not tending at all, or it is a tending, whether properly called self-tending or not, which is part of the carpenters' work jurisdiction. That is, not all handling of materials is tending work which is in the construction labourers' work jurisdiction. The construction labourers' tending work jurisdiction is limited to the tending functions which are severable from the erection and dismantling work performed by the carpenter. This is consistent with the Board's decision in Ecodyne Limited, [1997] OLRB Rep. Mar./Apr. 197 where the Board determined that "the work of tending the pairs of carpenters", which appears to have been in the nature of general tending work, should have been assigned to construction labourers.

33. The amount of construction labourer tending work associated with a particular scaffolding “job" (which consists of all of the work associated with the erection and dismantling of an individual scaffold) will depend on the kind, size and components of the scaffold, and the environment in which the scaffold is being erected or dismantled. Accordingly, there may be much or very little construction labourer tending work associated with the scaffolding job, perhaps as little as none.

34. This approach to tending is entirely consistent with the Board's conclusions in Doug Chalmers Construction Limited, supra, although it does require an extension of the analysis in order to obtain a result which is a reasonable reconciliation of the work jurisdictions of the two unions.

35. As the Board pointed out in Doug Chalmers Construction Limited, sup ra, this jurisdictional dispute involves the Labourers and Carpenters' provincial (ICI) agreements. These are the collective agreements under which the two unions assert their respective work jurisdictions and which must be reconciled. Both provincial agreements assert a tending jurisdiction (as do both union constitutions).

Paragraph 30 of the Doug Chalmers Construction Limited, supra, decision, the Board went on to say that:

30. 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.

With the benefit of the additional materials and representations in this proceeding, and upon further consideration, this statement appears to be not entirely accurate. It is accurate to say that tending of various trades, including the trade of carpenter, is an important part of the work jurisdiction of the construction labourer, and that is at the core of that work jurisdiction. However, it is not entirely fair to say that tending work is not also at the core of the carpenter's work jurisdiction. As such, "tending", in the sense of what construction labourers do, is not part of the carpenters' work jurisdiction at all. However, there is a tending aspect to that work jurisdiction; namely, the handling of material which is not severable from, in this case, the erection and dismantling of scaffolding by carpenters. The issue is not one of overlap between the two work jurisdictions but rather where one ends and the other begins. Accordingly, neither is it a matter of expanding or shrinking the tending jurisdiction of the construction labourer, but rather discerning what work falls within that jurisdiction. The fact that a construction trade union claims or clearly has jurisdiction over certain work is no guarantee of the amount of work which may be found within that jurisdiction at any given time. The jurisprudence demonstrates that a particular trade's work jurisdiction may not be uniform across the province, and that the boundaries of that work jurisdiction may change over time, again not necessarily in the same way or to the same extent in every part of the province. However, whatever the boundaries of a trade's work jurisdiction are at any particular time, and even if those boundaries do not change, the amount of work within that jurisdiction will inevitably be a variable thing. As it happens, this case raises both issues; namely:

(a) what is the tending jurisdiction of the construction labourer with respect

to the erection and dismantling of scaffolding? and

(b) how much work is there in it in Lambton County?

55. The first question is what most jurisdictional disputes are about. The second does not arise often, or is unnecessary to determine, and is much more difficult to answer.

56. In this case, the collective agreement factor favours the Labourers' claim to what might fairly be called the general tending work associated with the erection and dismantling of scaffolding. However, when it comes to tending work which cannot rationally be severed from the erection and dismantling functions which carpenters perform, the collective agreement favours the claim of the Carpenters. In the Board's view, erection and dismantling functions include any necessary fabrication and inspection work, and non-operating engineers' hoisting at the scaffold itself.

57. When it comes to employer and area practice, the Board's comments at paragraph 31 of the Doug Chalmers Construction Limited, supra, decision are equally applicable here. Of course, as was the case in that proceeding, further analysis is required. Having been given the benefit of the further materials and representations of the parties in this proceeding, the Board is not prepared to give the same weight to the statistical analysis that the Board engaged in Doug Chalmers Construction Limited, supra. This is not to say that the available statistics offer no assistance, but the nature of scaffolding, with the variations in size and environment, make them useful only as a general indicator. Further, there are two ways in which one can look at the statistics. Taking the statistics which the Board looked at in Doug Chalmers Construction Limited, supra (at paragraphs 34 to 36), one can say, as the Board did in that case, that the dominant ratio suggested by the practice materials is one labourer for every two carpenters, and that even Chalmers has historically used at least one labourer on 80% of all of its scaffolding jobs. On the other hand, in 30% of its scaffolding jobs, Chalmers has used either one or no labourers regardless of the number of carpenters on the scaffold. Further, while the company's three person scaffolding crews either included or required a labourer in addition to the carpenters on approximately 50% of its scaffolding jobs, that was equally often not the case. Indeed, all of the materials, including those which the Labourers have filed in this and the previous proceedings, suggest that a ratio approach is inappropriate, and the fact that one may be able to calculate a series of ratios from the statistics is a statistical fortuity, which upon closer inspection demonstrates the unreliability of the statistical approach. The statistical approach does not take into account the idiosyncrasies of individual jobs, which all of the materials before the Board suggest are the most significant determinant of the amount of construction labourer tending work which is associated with a particular job (scaffold). Further, the practice materials taken as a whole, including those filed by the Labourers, suggest that the ratio approach inevitably suggested by statistical analysis is not appropriate.

58. The same purported "trade agreement" which was before it in the previous litigation is also before the Board in this case, although the parties paid scant attention to it during the consultation. For the reasons given in paragraph 38 of Doug Chalmers Construction Limited, supra, the Board can give no weight to this agreement. It is apparent that events have overtaken and left it behind.

59. Chalmers and the Labourers both point to the April 7, 1992 Memorandum of Understanding between them in support of their respective positions. Although at pains to point out that it is not party to and does not accept that agreement, the Carpenters side with Chalmers in that respect. The Board observed the existence of this agreement but paid little attention to it in Doug Chalmers Construction Limited, supra. In this "second look", the Board finds it appropriate to observe that on its face, and in contrast to the similar agreement the Labourers obtained from Delta Catalytic (see paragraphs 7 and 8, above), the agreement with Chalmers attaches great significance to considerations of costs, efficiency and productivity, to the extent that it is only subject to those considerations that the parties agreed to the "general manner in which scaffolding will be tended, erected and dismantled." [emphasis added] While it is neither a trade agreement, nor otherwise determinative of anything in this jurisdictional dispute, the structure of this agreement does lend support to Chalmers plea for more discretion, and suggests that greater consideration is appropriately given to the company's economy and efficiency submissions.

60. In Doug Chalmers Construction Limited, supra, (at paragraph 28), the Board concluded that the factor of skill, training and safety favoured the claim of neither trade union. Strictly speaking, that is of course true. But the dispute here is not really about what is properly considered to be construction labourers tending work, but rather where to draw the line between the tending that labourers do and the tending that is part of the carpenters' erection and dismantling work jurisdiction. In that respect, skill, training and safety favours the existence of such a line. That is, the materials suggest that in addition to "practicalities", skill, training and safety require that the handling or tending component of the erection and dismantling work performed by Carpenters is properly considered to be a part of that work.

61. In paragraph 39 of the Doug Chalmers Construction Limited, supra, decision, the Board commented that 'jurisdictional disputes are about work jurisdiction, not about economy and efficiency." Strictly speaking, that is true, if not trite. However, and notwithstanding that this panel agrees with the statements in paragraphs 40 and 41 of that decision, economy, efficiency and employer preference must be given fair consideration in a jurisdictional dispute proceeding. It may be that in many cases, these factors will neither be determinative nor of any particular assistance, but they have long been considered to be relevant considerations and should not be given short shrift. To say that they are no more than a kind of "tie breaker", although generally accurate as a matter of jurisprudential history, is nevertheless probably understating their significance. This is particularly true in the more unusual cases, like this one, particularly where the amount of work is also in issue (see, for example, Boise Cascade Canada Inc., [1979] OLRB Rep. Sept. 850, which although not a construction case nevertheless illustrates the point; and in a construction context, see Tilechem Limited, Board File No. 1 880-88-JD, July 14, 1982, unreported).

62. Our analysis of the work in dispute, and of the other factors or considerations as aforesaid, leads us to conclude that it is appropriate to give economy, efficiency and employer preference greater weight than the Board was prepared to do in Doug Chalmers Construction Limited, supra. In that respect, the Board finds the photographs, the video of the Safway systems scaffolding, and the descriptions of how scaffolding work is performed very helpful. The Board has also considered the Labourers' response in that respect, including its inability to satisfactorily answer the feather bedding concerns, to be significant.

63. In the result, having considered all of the material before the Board, we are satisfied that it is inappropriate to require a minimum of one or any other number of construction labourers to be assigned to tend carpenters on every scaffold. However, while as a general matter, the Board does not get particularly specific about the numbers of employees who must be assigned to do disputed work, even when the Board considers a composite crew to be the answer, there is no reason why the Board cannot do so in the appropriate case. This is one of those (probably rare) cases in which it is not only appropriate but necessary to do so.

64. The Board is satisfied that the approach which the Board took in Tilechem Limited, supra, is applicable to this dispute. The work in dispute in that case was the erection and dismantling of masonry scaffolding. The work was assigned to "mason tenders" who were members of the Labourers' union. The Carpenters disputed the assignment. In upholding the employer's assignment, the Board in that case made the following pertinent comments:

65. The final criteria the Board looks to involves considerations of economy and efficiency. The erection of scaffolding on this type of project is intermittent, and there is not enough work to keep even one person busy. To assign the work to the carpenters would mean that for much of the time a carpenter would have to be specifically called in for relatively brief periods of time to do the work, perhaps for three days every two weeks. In the alternative, a carpenter would have to be permanently employed to do the work. In such a situation, the carpenter would either spend most of his time with nothing to do. or he could keep busy by primarily working as a mason tender.

66. It is true that more trades than just masons and mason tenders work off the scaffolding. However, the fact remains that the construction of unit masonry acid resistant tanks and vessels primarily involves masonry work. Carpenters and ironworkers are normally on a project for only relatively brief periods of time. Further, because the walls of the tanks must go up fairly slowly, the use of a full-time scaffolding crew, such as is done on other types of construction, would make very little sense.

67. Given all of the above, we are satisfied that it is more appropriate that the work in dispute be assigned to mason tenders belonging to the Labourers' union rather than to carpenters.

This is an appropriate approach to take to the factor of economy and efficiency and the manner in which Chalmers organizing its scaffolding work (see Premier Pipelines Limited, [1988] OLRB Rep. Oct. 1068).

65. Accordingly, as a general matter, a labourer is not required to tend a crew of two or three carpenters which is erecting or dismanfling a scaffold. A labourer will be required to tend carpenters only where there is sufficient general (i.e. labourers) tending work available to fully occupy a labourer for a minimum of four hours during a single shift (i.e. the equivalent of a labourer working day).

66. To borrow from the example presented in Chalmers' materials and developed at the consulta­tion, assume a stock pile, a materials inspection and fabrication point some distance from the stock pile, and a point of erection a further distance away from the inspection fabrication point. Two or three carpenters are assigned to erect a single simple systems scaffold in an unobstructed petro-chemical plant environment. The handling and movement of the scaffolding material to the inspection/fabrication point is general tending work, inspection/fabrication work is part of the erection work assigned to carpenters, the movement of the material from the inspection/fabrication point to the point of erection is general tending work, and all work at the point of erection, including the tying on and hoisting of materials is part of the erection work assignment to carpenters. If the total of the general tending work in this process (i.e. both movements - from the stock pile to the inspection/fabrication point, and from that point to the erection point) would reasonably occupy a worker for a minimum of four hours a day, that tending work must be assigned to a construction labourer. If not, it need not be.

67. Assuming the same scenario, but adding another scaffold and another two or three carpen­ters, the work assignment requirements are the same. If there is any movement of scaffolding material between the two scaffolds (i.e. '~jobs") that is general tending work which is added into the equation to determine whether the total amount of general tending amounts to a minimum of four hours of work.

IV Decision, Part 3 - The Result

68. It is apparent that the amount of general tending work which will be available is not necessarily proportional to either the number of scaffolds, the number of carpenters engaged in erection or dismantling work, or the amount of erection or dismantling work which is required. However, it is nevertheless possible to construct a general formula for approaching the assignment of tending work associated with the erection and dismantling of scaffolding (i.e. the work in dispute) as follows:

(a) General tending, as defined in this decision, is prima facie in the work jurisdiction of the construction labourer.

(b) All other tending work is within the work jurisdiction of the carpenter.

(c) General tending work is to be assigned to one or more construction labourers, unless there is insufficient general tending work required to keep a construction labourer occupied for a minimum of four hours during a working day, in which case it may be assigned as Chalmers in its discretion considers appropriate.

(d) An additional construction labourer must be assigned to perform general tending work when there is sufficient such work to keep the first labourer fully occupied for a full working day and there is additional work to fully occupy another labourer for an additional four hours. If there is less than four hours more than a full day's general tending work, that additional increment may be assigned as Chalmers in its discretion considers appropriate.

(e) An additional construction labourer must be added as necessary in accordance with this formula; that is, every time the amount of general tending work to be performed exceeds any multiple of one full day of such work by a minimum of four hours.

(f) Chalmers is always free to assign additional construction labourers to perform general tending work as it considers appropriate. That is, the fact that the amount of general tending work available is less than four hours worth of work does not mean that that work is within the Carpen­ters' work jurisdiction.

69. The Board therefore orders Doug Chalmers Construction Limited to assign construction labourers to tend carpenters engaged in the erection or dismantling of scaffolding in accordance with this decision, and specifically the formula as aforesaid.

70. Given the unusual nature of this case, the Board will also take the further unusual step of remaining seized with this matter for the purposes of dealing with any difficulties arising out of the interpretation or implementation of the decision or the Board's order for a period of six months.