1.                 This proceeding is a work assignment dispute in the construction industry filed with the Board pursuant to section 99 of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (the “Act”).

2.                 This application initially named Labourers’ International Union of North America, Local 837 (“Local 837”) as a responding party.  Prior to the outset of the consultation, the parties agreed to a resolution of all of the work assignment issues relating to Local 837.  Having regard to that agreement, Local 837 is removed as a party to this proceeding. 

3.                 This proceeding was scheduled by the Registrar for one day of consultation.  The parties had filed comprehensive briefs of both fact and law with the Board in advance of the consultation, and I had reviewed those briefs.  At the outset of the consultation, I invited counsel for International Brotherhood of Electrical Workers, Locals 303 and 353 (“the IBEW”) to spend up to one hour and fifteen minutes to make submissions regarding the conclusions that his clients desired the Board to reach.  Counsel for PCL Constructors Canada Inc. (“PCL”) and Ruger Construction Limited (“Ruger”) were subsequently provided with one hour and fifteen minutes to make their submissions.  Counsel for PCL used approximately one hour of that time, and counsel for Ruger utilized the remaining time. 

4.                 After considering the submissions made by counsel for the IBEW, PCL and Ruger, I invited counsel for the International Union of Operating Engineers, Local 793 (“Local 793”) to take up to one and one-half hours to make submissions regarding certain issues raised by the IBEW, PCL and Ruger.  The latter three parties were then provided with 15 minutes each to respond to the submissions made by counsel for Local 793.  At the conclusion of the consultation I reserved my decision.

5.                 I have not included in this decision a detailed description of all of the submissions made by the parties on the various issues raised in this proceeding.  Instead, I have summarized the most pertinent submissions made by the parties on the salient issues. 

6.                 The work in dispute is defined as follows:

7.                 Local 793 states that the work in dispute ought to have been performed by its members.  As a result, the onus of establishing that the work assignment was incorrectly made lies with Local 793.  The appropriate standard of proof that must be established by Local 793 is that stated by the Board in KEW Steel Fabricators Limited, 2006 CanLII 2118 (ON LRB).  Local 793 must demonstrate, on a balance of probabilities, that the work in dispute should have been assigned to its members, having regard to all of the relevant factors.

8.                 The Board has previously identified a number of factors that it normally considers in order to resolve work assignment disputes.  The factors typically considered by the Board include the following:

9.                 The background information that follows is taken from declarations executed by Mr. Joel Collens, a Business Representative of Local 793 with responsibility to service members in and around the city of St. Catharines, and Mr. Bruce Melnyk, a Superintendent employed by PCL who was responsible for the project at which the work in dispute was performed.  None of the parties took any issue with the background information offered by these individuals.  There were, however, a number of other factual assertions made by both Mr. Collens and Mr. Melnyk that remain in dispute.  To the extent that one or more of the parties disputed certain assertions made by Mr. Collens or Mr. Melnyk, I make specific reference to those disputes below.

10.              The Niagara Premium Outlet Mall is the largest open-air outlet mall ever constructed in Canada.  It occupies 720,000 square feet of property and is located on the northwest corner of Glendale Road and Taylor Road on the outskirts of Niagara-on-the-Lake.  The mall consists of a number of separate buildings spread over the property, with parking and walkways in between.  Prior to the onset of construction, the property where the mall is now located consisted of open fields unencumbered by any structures.

11.              PCL was the general contractor responsible for the construction of the mall. The work in dispute was performed as part of two separate subcontracts that were issued by PCL.  The initial subcontract involved the installation of high-voltage duct banks within the mall property lines.  The second subcontract concerned the installation of a high-voltage duct bank on Taylor Road, outside the property lines of the mall.

12.              By way of the initial subcontract, PCL contracted to Ruger the high-voltage electrical duct bank work on the mall property.  This contract encompassed work in connection with the installation of the high-voltage duct bank that looped around the property, running power from the transformers on the project to the main feed from Niagara-on-the-Lake Hydro.  The contractors that submitted bids for the initial subcontract were Ruger, PBW High Voltage Inc. (“PBW”) and R&B Construction Services Inc. (“R&B”), each of which is an electrical contractor bound to the IBEW.  The tender package relating to this work, including the applicable electrical specifications, was drafted by electrical engineers.  PCL solicited bids only from electrical contractors because of the high level of electrical expertise required to perform the work relating to the high-voltage duct bank in question.

13.              The second subcontract covered all work in connection with the supply and installation of the high-voltage electrical duct bank on Taylor Road.  A portion of the Taylor Road duct bank feeds power to transformers which, in turn, conduct power to the mall.  A separate portion of that duct bank feeds power to transformers located around the project site, which conduct power to buildings located near the mall.  It appears that the owner of the mall project agreed with the local authorities, as part of its contract to build the mall, that it would widen and realign Taylor Road. The duct bank that previously existed on Taylor Road had to be removed and replaced because it was located within an area along Taylor Road that was going to be affected by the widening and realignment of the road. 

14.              PCL secured the contract to perform the work relating to the second subcontract from the owner of the project independently of the first contract. It tendered that subcontract separately from the initial subcontract.  Again, the tender package relating to this work, including the applicable electrical specifications, was prepared by electrical engineers and was offered only to electrical contractors for the same reason that PCL solicited bids only from electrical contractors for the initial subcontract.  Ruger was the only entity that bid on the second subcontract, and it was awarded the contract. 

15.              Certain electrical specifications were relevant to the performance of the work in dispute.  In this regard, both subcontracts contained “Excavating, Trenching and Backfill” specifications.  Section 1.2.1 of the specifications provided that:

16.              Ruger performed the work in dispute by assigning it to members of the IBEW.  As noted above, the work in dispute involved the use of a Bobcat E45 excavator and a Bobcat E80 excavator.  All parties referred to these excavators as “mini-excavators” during the course of the consultation.

17.              The decision made by Ruger to assign the work in dispute to members of the IBEW caused Local 793 to file a grievance against PCL on March 28, 2013.  That grievance was referred to the Board the same day, and was assigned Board File No. 0351-13-G.  It was subsequently adjourned on consent by the parties.  On June 7, 2013, the IBEW filed the instant work assignment application with the Board.

18.              There is no dispute that PCL is bound to the Operating Engineers Provincial ICI Agreement (“the Operators’ ICI Agreement”), and that the work in dispute is covered by the Schedules and Classifications contained in that agreement.  Article 2.1 of the Operators’ ICI Agreement states that the employer will recognize Local 793 as the exclusive bargaining agent for its employees engaged in work covered by the schedules and classifications set out in that agreement.  Article 2.2 of the Operators’ ICI Agreement states that the on-site operation of all equipment listed in the agreement will be performed by a member of Local 793.  Schedule “H” to the Operators’ ICI Agreement, which applies to Board Area No. 5, identifies engineers operating “shovels … and similar equipment” and “trenching machines, and all similar equipment” as falling within its scope.  The operation of the two excavators used at the site by Ruger clearly falls within the scope of the Operators’ ICI Agreement.

19.              Ruger is bound to the ICI Provincial Collective Agreement between the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario and the IBEW Construction Council of Ontario (“the Principal Agreement”).  Local 793 did not argue that the work in dispute was not encompassed by the work jurisdiction claims made by the IBEW in the Principal Agreement, which claims include “all work necessary to the … installation …. of all electrical … ducts … when part of distributing systems outside of buildings …”. 

20.              PCL is not bound to the Principal Agreement.  Likewise, Ruger is not bound to the Operators’ ICI Agreement.

21.              In the circumstances, the Operators’ ICI Agreement and the Principal Agreement both make valid claims to the work in dispute.  This factor is, therefore, neutral.

22.              The parties gave this factor considerable attention in their briefs, as did counsel during the course of the consultation.

23.              PCL relies upon the electrical specifications applicable to the work in dispute to support its assignment of that work to Ruger.  It argues that the specifications for the electrical work on the project required that the excavation and backfilling necessary to install the high-voltage duct banks be performed by employees of the “H.V.” (i.e. high-voltage) contractor, which was Ruger.  As a result, PCL argues that it was required to package and subcontract that work in a manner consistent with the requirements set out in the specifications, and that any failure to do so would have resulted in significant potential liability on its part.  PCL states that subcontracting the work in dispute to Ruger complied with the specifications, and that it would have been a direct violation of those specifications for PCL to separately subcontract the work in dispute to any contractor other than Ruger.

24.              With the above established, PCL argues that it cannot be an incorrect work assignment for it to subcontract work in a manner that is compliant with the applicable specifications.  In this regard, PCL argues that it is no answer for Local 793 to assert that PCL could have complied with the specifications and still assigned the work to its members by subcontracting the high-voltage duct bank work to a contractor bound to Local 793.  PCL states that it ought not to be required to subcontract the high-voltage duct bank work to a dual trade contractor, to the exclusion of all single trade contractors, simply to ensure that a small portion of the overall contract was performed by members of Local 793.  It characterizes such a result as “completely inefficient and unreasonable”. 

25.              PCL argues that the only electrical subcontractor bound to Local 793 that bid for the work covered by the first subcontract was PBW.  It states that had it been required to subcontract the high-voltage duct bank work to PBW simply because it was the only dual trade contractor that submitted a bid, such an obligation would entirely undermine the competitive bidding process, and needlessly preclude it from subcontracting the work to the high-voltage subcontractor that was otherwise best suited to take on the entirety of the high-voltage contract.

26.              With respect to the second subcontract, PCL notes that only Ruger bid for that work.  PCL argues that it would have been equally inefficient and unreasonable for it to have been required to actively seek out bids from Local 793 contractors when none had come forward to bid for the work by the closing date.  The IBEW and Ruger did not specifically comment upon this argument.  As one might expect, Local 793 disagrees with the entire analysis submitted by PCL, including this specific argument.

27.              I also do not agree with the analysis submitted by PCL. 

28.              PCL is a large, sophisticated employer.  At the time that it determined to bid on the two contracts relating to the mall, PCL understood or ought to have understood certain things with respect to its labour relations obligations.  It understood that it was bound to the Operators’ ICI Agreement.  It understood that the work in dispute would have to be performed in order to properly complete the two contracts in question.  It understood or ought to have understood that the Operators’ ICI Agreement contained a legitimate claim to the work in dispute for members of Local 793.  Finally, PCL understood or ought to have understood that the terms of the Operators’ ICI Agreement required it to either perform the work in dispute with its own forces or to subcontract the performance of that work to an entity that was bound to the Operators’ ICI Agreement (or, alternatively, to an entity that would agree to become bound to the Operators’ ICI Agreement before performing the work).

29.              There is no suggestion that PCL had any involvement in setting the specifications that were established with respect to the performance of the work in dispute.  I accept that the work specifications were established by electrical engineers retained by the owner of the mall, and I am prepared to assume that PCL had no alternative in the circumstances but to satisfy those specifications in accordance with their terms.  However, PCL undoubtedly had the opportunity to review the contractual documents prior to signing them, and knew or ought to have known of the specifications established by the electrical engineers.  With that information in hand, and with the knowledge of its labour relations obligations in mind, PCL secured the two contracts in question from the owner.

30.              Once PCL secured the first of the two contracts from the owner, it had to determine how it would perform the work and ensure that all of its contractual obligations were satisfied.  PCL had a number of options available to it.  It could have performed all of the work relating to the project with its own forces.  Alternatively, it could have performed certain tasks with its own forces, and subcontracted to one or more third parties the remaining tasks.  In the further alternative, PCL had the option of subcontracting all of the work created by the two contracts to one or more third party contractors.  As is the norm for PCL, it ultimately opted to subcontract all of the work relating to the project.  It split the larger contracts into different subcontracts and determined that, because of the significance of the electrical work portion of the high-voltage duct installation and the specifications contained in the two contracts, it would take bids for the performance of the two high-voltage duct installation subcontracts only from electrical contractors. 

31.              There is nothing wrong with PCL opting to satisfy its obligations to the owner by subcontracting all of the work created by the two contracts.  However, its contractual obligations to the owner are not the only contractual obligations binding PCL.  PCL had pre-existing contractual obligations to Local 793.  If subcontracting its work was the option chosen by PCL, those pre-existing contractual obligations to Local 793 required PCL to subcontract the work in dispute to an entity bound to the Operators’ ICI Agreement in order to ensure that members of Local 793 performed that work.  PCL did not satisfy its obligation to Local 793.  Although it could have accepted a bid made from a subcontractor bound to both the IBEW and Local 793 (therefore satisfying all of its contractual obligations), PCL chose to award the two subcontracts encompassing the work in dispute to Ruger, an entity that was not bound to the Operators’ ICI Agreement.

32.              PCL asserts certain justifications for doing so.  First, PCL argues that the engineering specifications contained in the two contracts it has with the owner require that the electrical contractor performing the high-voltage duct work perform the excavation and backfilling work with its own forces, and that, should Ruger have been authorized to subcontract the work in dispute to a third party contractor bound by the Operators’ ICI Agreement, PCL would have violated its obligations to the owner and exposed itself to potential liability. 

33.              It is not clear to me that the contractual obligations owed by PCL to the owner are as strict as PCL asserts.  However, assuming that they are that strict for the purposes of this proceeding, those contractual obligations do not justify the decision made by PCL.  PCL can hardly defend the violation of its pre-existing collective agreement obligations to Local 793 by pointing to the terms of two subcontracts which it knowingly entered into that are inconsistent with those same pre-existing obligations.  If PCL was of the view that compliance with its collective agreement obligations was impossible should it enter into the two subcontracts with Ruger because Ruger was not bound to the Operators’ ICI Agreement, PCL ought not to have entered into the two subcontracts with Ruger.  Instead, it should have accepted a bid made by a subcontractor bound to both the IBEW and Local 793.

34.              In this regard, PCL also asserts that, had it been required to subcontract the high-voltage duct bank work to PBW simply because it was the only dual trade contractor that submitted a bid, such an obligation would entirely undermine the competitive bidding process, and preclude it from subcontracting the work to the high-voltage subcontractor that it considered to be “otherwise best suited to take on the entirety of the high-voltage contract”.

35.              I do not accept the analysis offered by PCL with respect to competitive bidding.  First, the premise upon which this argument is made by PCL is unsupported by the evidence.  Mr. Melnyk states in his declaration that both PBW and R&B placed a bid for the initial contract.  Each is bound to both the IBEW and Local 793.  Accordingly, PCL was not in the position where it would have been required to issue a subcontract to PBW simply because PBW was the only dual trade contractor that bid on the contract that contains the work in dispute.  It had the choice of contracting with either PBW or R&B.

36.              However, even if PBW had been the only dual trade contractor to have placed a bid for the work in dispute, and PCL had been required to sign a contract with PBW, such a result can hardly be said to undermine competitive bidding.  On occasion competitive bidding results in only one bid being received.  A perfect example was the second subcontract offered by PCL for the installation of high-voltage duct bank on Taylor Road.  Ruger was the only contractor to bid for that second subcontract.  Perhaps that result was the consequence of Ruger having successfully bid for the first contract.  Perhaps not.  One way or the other, it is notable that PCL did not suggest that the concept of competitive bidding had been undermined with respect to the second subcontract because only Ruger determined to bid.  The concern shown by PCL regarding competitive bidding only appears to matter if it is required by a pre-existing contractual obligation to enter into a subcontract with an entity that is not the lowest bidder.

37.              I turn to other arguments made by the parties relating to the factor of economy and efficiency.  PCL, the IBEW and Ruger argue that the work in dispute represented a small portion of the total work subcontracted to Ruger, and that it was much more efficient to have the same trade that performed the high-voltage electrical duct bank work use the mini-excavators to excavate and backfill the trenches into which that duct bank was being placed.  PCL, the IBEW and Ruger assert that “significant” inefficiencies would have resulted if Ruger had not been assigned the work because the work in question “did not represent nearly enough work to occupy a subcontractor or particular employee on a full time basis”.

38.              There is no dispute that the Board has considered as a relevant factor in a jurisdictional dispute proceeding whether a particular assignment of the work in dispute would result in an inefficient utilization of labour.  The Board is hesitant to make an order that would result in employees waiting around on a construction site to be assigned work that they can perform (see, for example, Bennett & Wright Group, [1997] OLRB Rep. November/December 967; Weinmann Electric Ltd., [2010] OLRD No. 4754; Babcock & Wilcox Canada, [2007] OLRD No. 2178; and Babcock & Wilcox Industries Ltd., [2004] OLRB Rep. January/February 6).

39.              The first question to be resolved is whether the quantity of the work in dispute on the site assigned to Ruger was sufficient to keep at least one employee occupied on a full-time basis.  It is at this point that the evidence relied upon by the parties diverges.  Mr. Melnyk, the PCL Superintendent responsible for the project, asserts that Ruger could only excavate and backfill approximately 150 metres of a trench at any one time.  He states that the excavation of 150 metres of trench would take approximately 3 to 4 hours, and that backfilling that same length of trench would take approximately the same time.  Mr. Melnyk states that the backfilling of any given portion of trench normally occurred two days after its excavation.  In addition, Mr. Melnyk asserts that the various portions of the trench were not excavated continuously, but were gradually excavated on a sporadic and intermittent basis, depending upon what other work was being performed on the project at the time.  He also states that many days could pass between the excavation of different 150 metre sections of trench.

40.              Having regard to the evidence offered by Mr. Melnyk, PCL states that it would have been entirely inefficient for it to have required a separate subcontract (or for Ruger to have brought members of Local 793 onto its payroll) to perform the work in dispute, because of the sporadic, part-time and intermittent nature of that work.  Because there was insufficient work to keep a member of Local 793 busy on a full-time basis, PCL argues that it was much more efficient to simply allow the IBEW members employed by Ruger to perform the work in dispute.

41.              Mr. Collens, the Local 793 Business Representative, disputes the assertions of fact made by Mr. Melnyk.  Mr. Collens states in a declaration prepared in response to that of Mr. Melnyk that Mr. Melnyk’s description of how the work in dispute was performed by Ruger “is just wrong” and is inconsistent with the regular observations he made of the way that Ruger performed its work.  Mr. Collens states that he realized that a jurisdictional dispute was likely with respect to the work in dispute and attended at the job site on a daily basis for the purpose of providing evidence in this proceeding.  Mr. Collens also states that he deliberately varied the times of the day at which he attended at the site.  According to Mr. Collens, on all but a handful of the days when Ruger was on site working, its excavators were actively operating, and by the look of the site when he returned from an absence it was obvious to him that significant excavating and backfilling had been completed between his visits.

42.              Mr. Collens states that Ruger did not organize its work such that its equipment or its workers were idle for significant periods of time while different aspects of the work were being performed.  He states that he observed the trenching and the installation of duct bank being performed with the entire crew travelling together.  If the equipment operator finished a length of trench while the crew laying the duct bank were still performing that function, Mr. Collens states that the equipment operator would move to another area on site or complete the backfilling of trench from the previous day.  He further states that there were a number of vaults for which chambers had to be excavated and levelled, and that the excavators were employed to perform those tasks while other Ruger employees were completing a section of trench installation or pouring concrete.

43.              According to Mr. Collens, there were three exceptions to the above-referenced work pattern (other than rain days and periods when Ruger was not operating at all at the site).  First, when a significant area of trench was completed and in the ground, a radial boom derrick would attend on site and the entire crew would focus on cable pulling for a period of two or three days.  Mr. Collens states that during these time periods, which occurred every couple of weeks, the excavators were, for the most part, parked.  Second, when concrete was being poured over a completed duct bank, Ruger’s primary excavator operator (its foreman) would stop excavating because he was responsible for operating the chute of the concrete mixer.  However, Mr. Collens states that the other excavator operator would continue to excavate in those circumstances.  Third, when Ruger was moving to a new area of the job or starting a new trench or new vault excavation, Mr. Collens recalls that Ruger employees who were not operating the excavators stood around for an hour watching the excavators work before beginning work themselves.

44.              With respect to the assertions made by Mr. Melnyk relating to the excavation of 150 metre lengths of trench, Mr. Collens states that Mr. Melnyk “severely understates the amount of excavation and backfilling time and significantly overstates the amount of duct bank installation time”.  According to Mr. Melnyk, it is very difficult to generalize regarding those tasks because soil conditions varied across the site and trenching was not done in a continuous, straight-line manner.  In addition, Mr. Collens states that the depths to which Ruger was trenching appeared to vary depending upon the location it was at on site.  Mr. Collens estimates that in good conditions the excavator operating the Bobcat E45 with an 18-inch bucket was able to open up 150 metres of trench in the course of six to seven hours (that is, in three-quarters of a working day), and that the duct bank crew following behind could install and pour concrete for that same distance in an entire day.  Mr. Collens states that the concrete was left to set overnight, and that on the subsequent day one excavator would backfill the same amount of trench for half to three-quarters of that day, while the first excavator opened up a new trench.

45.              Finally, Ruger stated in its consultation brief that the excavation of the trench for the duct bank was performed intermittently and that there were often days when no excavation work was performed.  It states that the mini-excavators sat idle for large parts of each day, and in some cases for days, while work was performed within the trench.  Ruger also states that if a mixed crew were required, the Local 793 operators “would be completely redundant for upwards of 75 percent of the time on site”.  No declaration was filed by Ruger in support of any of these assertions.

46.              I have considered the weight to be given to the differing assessments of the work performed by Ruger at the site.  Local 793 notes that Mr. Melnyk was responsible for running the entire job site and for overseeing all workers, subcontractors, and the subcontractors’ crews working at the site.  It questions whether Mr. Melnyk actually had a sufficient opportunity to carefully observe the work being performed by the employees of Ruger on a day-to-day basis.  Local 793 contrasts the on-site experience of Mr. Melnyk with that of Mr. Collens, who was specifically on site to observe the work being performed by Ruger.  For that reason it argues that more weight ought to be given to the evidence offered by Mr. Collens.  PCL, Ruger and the IBEW disagree.  They assert that the description of the work performed by Ruger on site that is offered by Mr. Melnyk is the very best evidence available, that it is credible, and that it ought to be relied upon by the Board.

47.              Ultimately, I conclude that the description of the work performed on site that is offered by Mr. Collens represents a more credible and accurate assessment of the performance of that work.  I reach this conclusion for a number of reasons. 

48.              First, the evidence offered by Mr. Collens is far more particular than the evidence offered by Mr. Melnyk.  Mr. Collens was on site on a regular basis for the specific purpose of viewing the work in dispute with an eye towards the litigation of this proceeding.  Mr. Melnyk, on the other hand, was the Site Supervisor, with many significant responsibilities and obligations.  On any given day he is unlikely to have been able to observe for any meaningful period of time the actual work performed by the employees of Ruger. 

49.              In addition, Local 793 filed a number of supporting declarations from its members who worked on site for other contractors that were subcontracted to perform certain other trenching work.  These individuals dispute the assessment made by Mr. Melnyk and support the assessment offered by Mr. Collens.  Local 793 also filed letters from contractors bound to the Operators’ ICI Agreement who question the validity of the assessment made by Mr. Melnyk.

50.              Most importantly, however, I am persuaded that the evidence offered by Mr. Collens is the best evidence available by what is not contained in the materials before the Board.  Notwithstanding that at least two members of the IBEW actually performed the work in dispute for Ruger, no first-hand declaration by any such member of IBEW was offered by PCL, the IBEW or Ruger.  This is an omission of considerable significance for the purposes of this proceeding.  PCL, Ruger and the IBEW had access to at least two individuals who could have clearly delineated in a declaration for the Board exactly what work they performed at the mall site, and for how long on any given day they performed that work.  For obvious reasons I would have placed considerable weight on a careful, detailed declaration prepared by any one of the employees of Ruger who actually performed the work in dispute. 

51.              During the course of the consultation I raised this omission with counsel.  Counsel for PCL asserted that no one ever anticipated that there would be a factual dispute regarding the intermittent nature of the trenching and backfilling work performed on site, and that if PCL had known that such a dispute might arise it would have filed other materials in support of its position.  However, as I pointed out to counsel during the consultation, that assertion makes no sense at all.  Mr. Collens, in his initial declaration, states that from the outset Ruger operated the excavators on a full-time basis for 10 hour days for the vast majority of the time that they were on site.  It is the subsequent declaration provided by Mr. Melnyk in response to that offered by Mr. Collens that first asserts that the excavators operated on an intermittent basis.  That being the case, how can it possibly be suggested by PCL that it could not have anticipated that there would be a factual dispute regarding the amount of trenching work available on site?  That is the exact issue that the declaration of Mr. Melnyk was crafted to raise. 

52.              Simply put, Mr. Melnyk was not the best person to offer evidence regarding the work performed on site by the employees of Ruger who performed the work in dispute.  Those employees were.  No credible explanation for the failure to include a declaration from a member of the IBEW who operated one of the two excavators for Ruger was offered by counsel for PCL, Ruger or the IBEW.  In the circumstances, the absence of such a declaration can only lead me to draw the inference that the evidence that would have been offered by the IBEW members who operated the E45 and E80 Excavators for Ruger at the site would have undermined the evidence offered by Mr. Melnyk, and would have supported the evidence offered by Mr. Collens. 

53.              In the circumstances, I reject the evidence offered by Mr. Melnyk and accept as accurate the evidence offered by Mr. Collens.  With that conclusion in hand, the assertion made by PCL, Ruger and the IBEW to the effect that it would have been inefficient for two members of Local 793 to have been assigned to perform the work in dispute has no substance.  I am satisfied that there was a sufficient amount of the work in dispute to keep two employees of Ruger occupied on a regular basis.

54.              Having regard to all of the above, I am not satisfied that PCL, Ruger or the IBEW has established that the factor of economy and efficiency favours assignment of the work in dispute to members of the IBEW.  This factor is neutral in this proceeding.

55.              When assessing employer practice the Board normally considers work performed by the employer throughout the Province of Ontario in the same sector of the construction industry as the work in dispute (see, for example, Deep Foundations Contractors, cited above, at paragraph 22). 

56.              Local 793 asserts that the employer for the purpose of this proceeding is PCL, and that the relevant scope of employer practice is that of PCL in the ICI sector of the construction industry throughout the Province of Ontario.  Local 793 states that the practice of Ruger in that same sector of the construction industry ought to be given substantially less weight than the practice of PCL, if any weight is afforded its practice.

57.              The IBEW, PCL and Ruger disagree.  The IBEW and Ruger identify Ruger as the entity that assigned the work in dispute, and assert that it is the practice evidence of Ruger that ought to be given the most weight in this proceeding.  PCL, on the other hand, acknowledges that it is an employer for the purpose of assessing employer practice in this proceeding.  With respect to PCL practice, all three of PCL, the IBEW and Ruger state that the practice evidence of PCL that is relied upon by Local 793 is, in fact, irrelevant, on a number of grounds.  I discuss those grounds below.

58.              In Alliance Verdi Civil Inc., [2011] OLRB Rep. January/February 1, a panel of the Board chaired by this Vice-Chair made the following observations regarding the identity of the employer for the purposes of a work jurisdiction dispute, which I adopt for the purposes of this proceeding:

59.              The real question to be determined with respect to this factor is the relative priority to be given to the different collective agreement obligations owed by PCL and Ruger.  Local 793 states that the issuance of the subcontracts by PCL to Ruger, a single-trade IBEW contractor, effectively represented an assignment of the work in dispute by PCL to members of the IBEW.  Local 793 notes that this is not a case in which PCL was confronted by competing or overlapping contractual obligations or overlapping collective agreement claims to the work in dispute.  It states that PCL had one contractual obligation, which was to assign the work in dispute to members of Local 793, or to subcontract the work in dispute to a contractor in contractual relations with Local 793, and that it simply did not do so.

60.              In support of its position, Local 793 adduced evidence of 55 separate projects performed by PCL in the ICI sector of the construction industry in the Province of Ontario in which the work in dispute was assigned to members of Local 793.  The projects span the period running from 1994 to 2013.  The position taken by Local 793 on each project is, for the most part, supported by numerous declarations authored by one or more of its members.  I will outline some of these projects below.

61.              As noted above, PCL, the IBEW, and Ruger assert that the employer practice evidence offered by Local 793 is not relevant.  In this regard, there can be no doubt that the practice evidence offered by Local 793 is only relevant if it is comparable to the work in dispute in this proceeding (see, for example, Foster Wheeler Limited, [1991] OLRB Rep. August 990; and SLN Aecon c/o Aecon Industrial, a Division of Aecon Construction Group Inc., 2010 CanLII 76973).

62.              The IBEW asserts in its brief that the evidence relied upon by Local 793 “is not the same kind of work as the work in dispute in the present case”.  In this regard, the IBEW states that the work in dispute in this proceeding is the operation of a mini-excavator for trenching and backfilling of high-voltage duct banks “outside the building lot perimeter or property line”, and is distinguishable from the projects relied upon by Local 793 which involve excavation and backfilling for duct bank “inside a building site”.  The IBEW further distinguishes the evidence offered by Local 793 by asserting that the projects relied upon by Local 793 involved the installation of low-voltage duct bank, as opposed to the instant proceeding, where high-voltage duct bank was installed.  Finally, the IBEW states that the projects relied upon by Local 793 involved “heavier equipment, including heavier excavating equipment, and not the use of mini-excavators”.  In its brief, Ruger adopts the position taken by the IBEW.

63.              The IBEW included in its brief its own evidence of employer practice, referring to three projects performed by Ruger where the work in dispute was performed by members of the IBEW.  All three projects (a Maple Leaf Food location in Hannon, Ontario; the IBEW Head Office in Toronto, Ontario; and a Digital Realty office in Markham, Ontario) were performed during 2013 and 2014.  At least two of these projects (the projects in Toronto and Markham) were clearly performed after the filing of the grievance that triggered this proceeding, and are therefore given no weight by the Board (see, for example, Aecon Constructors, 2008 CanLII 7449, at paragraph 17).  The evidence offered by the IBEW with respect to the project in Hannon is ambiguous on its face, in that the declaration provided by Mr. Finnerty, a Business Representative for IBEW Local 353, only makes reference to the work being performed during 2013.  I return to this project below.

64.              For its part, PCL makes assertions similar to those made by the IBEW and Ruger with respect to the quality of the practice evidence relied upon by Local 793.  It states that some of the evidence relied upon by Local 793 did not involve trenching or backfilling relating to the installation of high-voltage duct banks, and did not occur outside the footprint of the building.  PCL also asserts that some of the evidence relied upon by Local 793 does not relate to the use of mini-excavators such as the Bobcat E45 and E80 excavators utilized at the mall.  Finally, PCL states that the only relevant practice evidence is that relating “to jobs on which the mini-excavators were only used on an intermittent basis”. 

65.              PCL included in its brief its own evidence of employer practice, referring to three projects upon which one of its subcontractors assigned the work in dispute to members of the IBEW.  The first project, in 2008, was a Mountain Equipment Co-Op project in Burlington.  The second project, performed in 2011 in Oakville, was the construction of a new Oakville Transit facility.  The third project, performed in 2013 in Richmond Hill, was a Viva bus terminal.  The latter project was performed after the filing of the grievance that triggered this work assignment application and is therefore of no value as evidence of employer practice.  PCL also included in its brief two projects (the first one, performed in 2011-2012 in Toronto, and the second one, performed in 2012 in Brampton) in which a similar assignment was made on a project involving low-voltage duct bank. 

66.              I have very carefully reviewed all of the practice evidence relied upon by the parties in this proceeding.  In my view, the positions taken by PCL, Ruger and the IBEW with respect to the employer practice evidence are unsupportable, for numerous reasons.  I am also of the view that the evidence of employer practice relied upon by PCL, Ruger and the IBEW is extremely weak at best.

67.              As an initial observation, I note that the submissions made by PCL, Ruger and the IBEW regarding the frailties of the employer practice evidence relied upon by Local 793 are far too general in nature to be of any meaningful assistance.  Local 793 identified 55 specific projects in its brief.  For PCL, Ruger and the IBEW to make general assertions in their briefs regarding the weaknesses of the evidence relied upon by Local 793, without specific reference to any given project or projects relied upon by Local 793 in its brief, does not establish those weaknesses.  A party to a work assignment dispute that wants to credibly challenge the legitimacy of the practice evidence relied upon by another party ought to identify the specific evidence it challenges, and specify the exact grounds for that challenge in the given case, rather than rely upon an omnibus assertion to the effect that all of the practice evidence relied upon is weak for any one of a number of reasons.  Declarations in support of those challenges would be of significant value.  In this proceeding neither PCL, Ruger nor the IBEW put forward any credible basis to undermine the employer practice evidence offered by Local 793.

68.              The general, omnibus assertion made by PCL, Ruger and the IBEW regarding the employer practice evidence relied upon by Local 793 is itself problematic.  As noted at the outset of this decision, the work in dispute in this proceeding was agreed upon by the parties to be:

69.              However, even if the distinctions asserted by PCL, Ruger and the IBEW were to be relevant for the purpose of this proceeding (and not all of them are, as I have found that the work in dispute was not performed on an intermittent basis), it is evident from the materials filed by Local 793 in its reply brief that those distinctions do not meaningfully undermine the employer practice evidence relied upon by Local 793. 

70.              The evidence filed by Local 793 in its reply brief clearly establishes that many of the work assignments it relies upon were performed on a full-time basis, many of those work assignments were performed on an intermittent basis, and that most of the assignments involved a mixture of both types of work.  Local 793 has established that its members were assigned the work in dispute in all such circumstances.  In a similar vein, the evidence offered by Local 793 in its briefs establishes that whether the work in dispute related to the installation of high-voltage duct bank or the installation of a low-voltage duct bank, that work was assigned to members of Local 793 to perform.  In fact, the evidence establishes that on any given project there are usually both high-voltage and low-voltage duct banks installed, and that members of Local 793 performed the work in dispute in both instances.  This same conclusion can be drawn with respect to the location in which the work in dispute was performed.  Whether the work in dispute was performed inside the perimeter of a building, or outside that perimeter, the work in dispute was performed by members of Local 793.  The distinctions that PCL, the IBEW and Ruger desire to draw have no significant effect on the evidence of employer practice with respect to the work in dispute.

71.              Finally, even if I were to accept as meaningful all of the various distinctions raised by PCL, Ruger and the IBEW (which I do not), of the 55 jobs relied upon by Local 793 as evidence of employer practice, counsel for PCL conceded at the consultation that 11 of those jobs meet the various distinctions raised by those parties.  It appears to me that at least another 10 such jobs meet those same distinctions.  However, even if there are only 11 such jobs,  PCL, Ruger and the IBEW are simply wrong to assert, as they do in their briefs, that none or almost none of the employer practice evidence relied upon by Local 793 supported its position.

72.              By way of contrast, the practice evidence offered by PCL, Ruger and the IBEW in support of its position is extremely weak.  First, as noted above, of the eight relevant projects (three offered by the IBEW, and five offered by PCL), three of those projects (two relied upon by the IBEW, and one relied upon by PCL) were performed after the grievance was filed that led to this application.  Accordingly, at best PCL, Ruger and the IBEW can only rely upon five relevant projects for the purposes of this work assignment dispute.

73.              The four relevant work assignments relied upon by PCL are supported by a declaration authored by Mr. Chris Robinson, the Labour Relations Manager for PCL.  The declaration authored by Mr. Robinson is itself weak.  He is not a field employee of PCL, and has no direct knowledge of the projects and work assignments referred to in his declaration. No declarations are provided by any employee of Ruger who performed the work in dispute on these projects.  As noted by Local 793 in its reply brief, the IBEW has made no reference at all in its brief to any one of the four work assignments identified by Mr. Robinson.  Accordingly, the limitations reflected by his declaration are not in any way remedied by the materials filed by the IBEW.

74.              Reference was made earlier to one work assignment that could potentially be relied upon by the IBEW, namely the Maple Leaf Food project in Hannon, Ontario, which Mr. Finnerty states in his declaration was performed during 2013. A reply declaration filed by Local 793 authored by Virgil Nose, one of its Business Representatives, states that the work in dispute on that project was not assigned until the fall of 2013, after the grievance that led to this proceeding was filed.  The assertion made by Mr. Nose was not disputed by the IBEW during the course of the consultation.

75.              Considered in its totality, the employer practice evidence supports the assignment of the work in dispute to members of Local 793.  The relevant employer practice evidence relied upon by Local 793 is detailed, and, for the most part, supported by numerous declarations.  On the other hand, Ruger has put forward no evidence of its practice.  All of the evidence put forward by the IBEW is evidence that occurred after the grievance filing date and has no relevance for the purpose of this proceeding.  PCL, for its part, can only point to four relevant work assignments in which members of the IBEW were assigned the work in dispute on one of its projects.  Even if I accept the assignments relied upon by PCL at face value, those work assignments are considerably fewer than the work assignments it made to members of Local 793.

76.              This factor favours assignment of the work in dispute to members of Local 793.

77.              When assessing area practice evidence, the Board’s well-known practice is to examine work performed in the Board Area in the same sector of the construction industry within which the work in dispute falls (see PCL Constructors Canada Inc., [2010] OLRB Rep. November/December 771, at paragraph 71; Deep Foundations Contractors, cited above, Kvaerner Constructors Ltd., [2004] OLRB Rep. May/June 756; Nicholls-Radtke Ltd., [1996] OLRD No. 2397; Comstock Canada Inc., [2005] OLRD No. 4773).  Although there have been exceptional cases in which the Board has considered third-party practice evidence beyond the geographic scope of the relevant Board Area, those cases are extremely rare.

78.              Much of the area practice evidence offered by the parties was evidence involving single trade contractors.  In Alliance Verdi Civil Inc., cited above, the Board recently commented upon area practice evidence of that nature, which I adopt for the purposes of this proceeding:

79.              Local 793 identified 67 different projects, dating from 1994 to 2013, where contractors had assigned the work in dispute to its members on ICI sector construction projects performed in Board Area No. 5.  Of those 67 projects, 39 of them reflected an assignment of the work in dispute by a contractor bound only to Local 793.  For the reasons identified in the above passage from Alliance Verdi Civil Inc. I am not inclined to place much weight on that area practice evidence.

80.              Although it is difficult to tell from the descriptions offered by Local 793, it appears that a number of the remaining 28 construction projects did not involve the performance of the work in dispute.  By way of example, Local 793 relies upon work performed for the Barnes Group in Beamsville when it constructed a new building during 2003.  The contractor that performed trenching at that site did so by using a John Deere 310 Rubbertire Backhoe.  For reasons that are obvious, that assignment of work is not an example of the work in dispute.

81.              Once all of the irrelevant area practice evidence is deleted from the list relied upon by Local 793, it appears that there are 17 examples of construction projects in Board Area No. 5 where either (a) the work in dispute was assigned to members of Local 793 by a contractor bound to both Local 793 and the IBEW, or (b) the work in dispute was assigned to members of Local 793 by one contractor, and members of the IBEW were assigned the installation of high-voltage duct bank by a separate contractor, and the IBEW did not grieve the assignment of the work in dispute to members of Local 793. 

82.              Of specific note, 11 of the 17 examples of area practice relied upon by Local 793 in this proceeding involve assignments of the work in dispute made by Weinmann Electric Limited (“Weinmann”).  Counsel for the IBEW asserted during argument that the circumstances surrounding the assignment of work by Weinmann are unique, and that the area practice evidence reflected by the assignments of work made by Weinmann is not area practice evidence to which the Board has ever given weight.

83.              As indicated in a previous Board decision, Weinmann Electric Limited, 2010 CanLII 71126 (“Weinmann Electric”), Weinmann is a utility contractor that has been bound to collective agreements with the IBEW since 1960.  It is bound to the Principal Agreement.  In 1982 the principals of Weinmann incorporated a second entity, Utility Installation Limited (“UIL”).  UIL is bound to the Operators’ ICI Agreement.  These two entities act together as a single enterprise.  They install electric services by dividing up the available work between them, by reference to what they consider to be electrical work, and what they consider to be civil work.  The electrical work is performed by members of the IBEW employed by Weinmann, and the civil work is performed by members of Local 793 (and by members of the Labourers’ union) employed by UIL.  This structure appears to have been established by the principals of the two corporate entities in order to avoid jurisdictional disputes.

84.              One of the questions before the Board in Weinmann Electric was whether a declaration that Weinmann and UIL were one employer for the purposes of the Act ought to issue pursuant to subsection 1(4) of the Act.  All parties in the various proceedings before the Board (there were five applications) agreed that such a declaration should issue.  In accordance with that agreement one did, with an effective date of December 2, 2010.

85.              Although I do not dispute that the business structure adopted by Weinmann and UIL is unique, that characterization does not mandate that little or no weight be afforded the area practice evidence offered by Local 793.  Weinmann and UIL were determined by the Board to be one employer effective December 2, 2010.  The practice evidence offered by Local 793 relating to Weinmann and UIL all post-date that declaration.  On the various projects upon which Weinmann was contracted to install electrical duct work, it assigned the work in dispute to members of Local 793.  The IBEW was undoubtedly aware of that assignment of work, but chose not to grieve the assignment.  It is valid practice evidence that can be relied upon by Local 793 in this proceeding.

86.              The collective area practice evidence offered by PCL, the IBEW and Ruger is very weak.  The IBEW identified in its brief 17 examples of area practice that it relies upon.  Ruger filed no area practice evidence, and instead relies upon the same evidence asserted by the IBEW.  PCL also filed no area practice evidence.  Of the 17 projects relied upon by the IBEW and Ruger (four involving the installation of high-voltage duct bank, 12 involving the installation of low-voltage duct bank, and one relating to a wind farm project), 11 of them (ten on their face, and a further project identified by Local 793 in its reply brief) post-date the grievance giving rise to this proceeding.  As noted above, I put no weight on practice evidence that post-dates the underlying grievance with respect to the work in dispute.

87.              Of the remaining six projects, five of them involve an assignment of the work in dispute to members of the IBEW by Galbraith Electric Ltd.  Galbraith Electric Ltd. is a single trade contractor, bound to the IBEW but not to Local 793.  Once again, for the reasons identified in the above passage from Alliance Verdi Civil Inc., I am not inclined to place much weight on that area practice evidence.  I also note here that, of these five projects, Local 793 states that two of them (Queenston Plaza Phase IV and St. Katherine Church) were projects in the roads sector of the construction industry.  Neither the IBEW, PCL or Ruger challenged that assertion during the consultation.

88.              Finally, Local 793 also notes that the assignment of the work in dispute at the wind farm project in question (an assignment by H.B. White at the Summerhaven Wind Farm project) was challenged by Local 793 and is the subject of an ongoing jurisdictional dispute proceeding at the Board.  As a result, it is not an example of area practice evidence that can be given weight in this proceeding.  In any event, Local 793 states that in the jurisdictional dispute proceeding relating to the wind farm assignment, the parties have agreed that the work in dispute was performed in the electrical power systems sector of the construction industry, and not the ICI sector.

89.              Considered in its entirety, the area practice evidence offered by the IBEW and Ruger does not establish that the work in dispute is regularly assigned to members of the IBEW in Board Area No. 5.  At its very best, the IBEW and Ruger have established three assignments of the work in dispute made to members of the IBEW by a contractor bound only to the IBEW, upon which I place almost no weight.  Local 793, on the other hand, has identified at the very least 17 projects in which the work in dispute was assigned to its members in Board Area No. 5.  Local 793 has also identified 39 projects wherein the work in dispute was made to its members by a contractor bound only to the Operators’ ICI Agreement.

90.              In the circumstances, the area practice evidence strongly favours assignment of the work in dispute to members of Local 793.

91.              There is no doubt that members of Local 793 have the skills and training required to perform the work in dispute.  Local 793 included in its written briefs materials that outline the in-school and practical training received by its members in the operation of heavy equipment for the purpose of excavating, trenching, backfilling and compacting.  It is clear that members of Local 793 have the skills and training to safely perform the work in dispute.

92.              Local 793 does not dispute that members of the IBEW can perform the work in dispute - they did so at the mall site.  However, Local 793 states that the training afforded to members of the IBEW in how to perform the work in dispute in a safe and skilful manner is not equivalent to the training offered to members of Local 793.  As a result, it asserts that members of the IBEW do not possess the same level of skill and training as its members do to perform the work in dispute safely.  Accordingly, Local 793 states that this factor ought to fall in its favour.

93.              The IBEW disagrees.  It states that the work in dispute does not involve heavy equipment but, instead, mini-excavators.  The IBEW asserts that its members have the training, skill and ability to perform the work in dispute.  It argues that the proof of that assertion is the fact that its members performed the work in dispute at the mall project without difficulty.  The IBEW asserts that this factor is neutral.  Ruger adopts the position taken by the IBEW.  It notes that the Bobcat E45 and E80 Excavators are lighter, perform fewer functions and are less complex than heavy machines, require no special training to operate, and are considered tools of the trade for IBEW Groundsmen. 

94.              PCL states that members of the IBEW have the requisite skill and training to safely perform the work in dispute.  It states that it understands that the IBEW trains its members in all aspects of the installation of high-voltage duct banks, including the performance of the work in dispute.  Like the IBEW and Ruger, PCL notes that mini-excavators are lighter, less powerful and easier to use than larger forms of heavy machinery that are operated by members of Local 793, and that no specialized skills and training are necessary to operate the machines.  It states that this factor ought to fall in favour of assignment of the work in dispute to members of the IBEW.

95.              I have no doubt that certain members of the IBEW have the skills required to operate a mini-excavator, and that mini-excavators are far less complicated to operate than a larger piece of heavy machinery.  However, the fact that members of the IBEW have the skill to operate a mini-excavator does not end the assessment made by the Board relating to this factor.  This factor requires the Board to consider, broadly, three different factors:  safety, skills and training. 

96.              With respect to training, the evidence before the Board establishes that members of Local 793 are given a considerable amount of training on how to safely operate mini-excavators such as those used to perform the work in dispute in this proceeding.  That is not surprising.  The training offered to members of the IBEW is not as evident.  Although the IBEW asserts in its brief that its members are trained in the performance of the work in dispute (and PCL states that it understands that the IBEW does, in fact, provide that training), the IBEW did not file with the Board any of its training materials to establish its assertion.  Accordingly, it is not clear at all how much training IBEW members actually receive in the safe operation of mini-excavators, if they receive any such training.

97.              In this regard, the ability to identify and avoid potentially unsafe work situations is another consideration that must be taken into account by the Board.  Here, this consideration is raised by Local 793 in its briefs.  In his initial declaration filed with the Board, Mr. Collens states the following:

98.              In its reply materials, Local 793 takes issue with the assertions made by PCL and Ruger.  Mr. Collens makes the following assertions in his second declaration:

99.              In its reply brief, Local 793 also includes a declaration authored by Mr. Harold McBride, the Executive Director of the Operating Engineers Training Institute of Ontario.  Mr. McBride is a long-time member of Local 793 and has over 25 years’ experience operating various pieces of heavy equipment.  In his declaration, Mr. McBride expresses concern regarding the safety implications arising from certain work practices depicted in photographs taken at the mall work site.

100.           Of particular concern to Mr. McBride are two photographs, one which appears to depict a utilities manhole placed in an underground trench, and a second which appears to depict a worker standing in a trench up to his armpits.  Mr. McBride states the following with respect to these photographs:

101.           I am hardly in the position to make any determination in this proceeding as to whether the safety concerns raised by Mr. Collens and Mr. McBride in their declarations are or are not well-founded.  I include this exchange of information in this decision for the sole purpose of illustrating the significance of being properly trained in the performance of the work in dispute.  Both Mr. Collens and Mr. McBride, like other members of Local 793, have been trained to identify potential health and safety issues in the course of excavating and backfilling a trench.  As noted above, it is not at all clear from the materials filed with the Board that members of the IBEW who are trained to install high-voltage duct bank are given any meaningful training on how to perform the work in dispute in a safe and skilful manner, or how to identify potential health and safety issues.

102.           In the circumstances, this factor falls in favour of assignment of the work in dispute to members of Local 793.

103.           Local 793 asserts that the work in dispute constitutes the core work of its members, and is a consideration that strongly favours assignment of the work in dispute to its members.  It observes that the standard craft bargaining unit that has been established for its trade (“all employees engaged in the operation of cranes, shovels, bulldozers, and similar equipment …”) is mirrored in the designation established by the Minister of Labour under subsection 153(1) of the Act.  Local 793 argues that the equipment used to perform the work in dispute in this proceeding is the exact type of heavy equipment that is at the core of its craft, and relies upon 2319410 Ontario Limited o/a WC Contractors, 2013 CanLII 53176 and Bruce Power LP, 2009 CanLII 17246 in support of its position.

104.           The IBEW disagrees with the position taken by Local 793.  It acknowledges that the operation of certain large pieces of construction machinery is usually performed by members of Local 793.  However, it asserts that Local 793 does not have the exclusive jurisdiction to do so.  The IBEW asserts that the operation of smaller equipment such as forklifts is performed by many trades.  Those trades claim jurisdiction to the work performed with forklifts on the ground that the machines are being used as a “tool of the trade”.  The IBEW argues that the mini-excavators used by their members at the mall site are similar pieces of smaller equipment, and that its members who lay high-voltage duct banks often operate such equipment as a tool of the trade.

105.           PCL also challenges the assertion made by Local 793 that the work in dispute falls within its core jurisdiction.  PCL argues that the assertion made by Local 793 is unfounded, and that the use of mini-excavators has never been determined by the Board to fall within the core jurisdiction of Local 793.  Ruger agrees with the positions taken by PCL and the IBEW.  During the course of the consultation, counsel for Ruger argued strongly that the operation of mini-excavators at the site was simply an instance of a specialty contractor using a tool of the trade. 

106.           There can be no dispute that the operation of machinery is at the core of the jurisdiction of Local 793.  That conclusion was reached in both 2319410 Ontario Limited o/a WC Contractors (at paragraph 10) and Bruce Power LP (at paragraph 19), both cited above.  There can also be no dispute that mini-excavators are machines that are regularly operated by members of Local 793.  However, certain types of equipment that define the jurisdiction of an operating engineer may be used by other trades to perform the core work to which their craft relates.  If that is established to be the case, this consideration would favour neither trade for the purpose of a jurisdictional dispute.

107.           The question, then, is whether mini-excavators are used by electricians for the purpose of installing high-voltage electrical ducts. 

108.           Evidence was filed by the IBEW in support of its position on this question.  Mr. Finnerty states that he has been involved with a number of different projects in Board Area No. 5 in which contractors have assigned the operation of mini-excavators for the excavation and backfilling of high-voltage duct bank to members of the IBEW.  Mr. Finnerty identifies projects performed for Grimsby Hydro in 2013, for Niagara Falls Hydro in 2011-2012, and an undated project for Canadian Niagara Power Corporation as jobs at which members of the IBEW performed the work in dispute.  In its reply brief, Local 793 does not dispute any of the factual assertions made by Mr. Finnerty.

109.           In the circumstances, this consideration does not favour either Local 793 or the IBEW.

110.           The evidence before the Board establishes that the factors of employer practice, area practice, and safety, skills and training favour assignment of the work in dispute to members of Local 793.  The collective agreement factor, the economy and efficiency factor, and the consideration of core jurisdiction are neutral. 

111.           Having regard to all of the evidence before the Board, the Board declares that the work in dispute ought to have been assigned to members of Local 793.