1.                  This is an application concerning a work assignment dispute filed by The International Union of Painters and Allied Trades, Local Union 1891 (“the Painters”) pursuant to section 99 of the Labour Relations Act, 1995 S.O. 1995 c.1 as amended (“the Act”).  The responding parties are Sirro Brothers Cement Finish & Spray Ltd. (“Sirro”) and The Formwork Council of Ontario (”the Council”). Labourers International Union of North America, Local 183 (“the Labourers”) has intervened herein.

2.                 The work in dispute is the following:

3.                 Further to the Board’s decision of July 23, 2015, the Board continued its consultation herein on June 10 and August 11, 2016.  On the first date, the Board heard specific evidence about Sirro’s past practice. On the second date, the Board heard final argument on the employer and area practice criteria as they pertain to this jurisdictional dispute.  In its July 23, 2015 decision, the Board had determined that all of the other criteria the Board typically employs to determine jurisdictional disputes were neutral, save and except the safety, skills and training criterion, where the Board found that the Painters’ extensive training program tipped this criterion in favour of the Painters.

4.                 Before embarking on an analysis of the employer and area practice criteria, it is worthwhile to explore the evolution of the parties’ positions on the work assignment. 

5.                 Initially, the Painters took the position that all of the work in dispute should be assigned to its members.  The Labourers took the position that the appropriate work assignment would be to a composite crew of Painters and Labourers but did not specifically submit the proportions of members of the two trade unions who would make up the composite crew.  Sirro’s position was that there had been “a steady mixed crew for years and no one has complained”.  Furthermore, Sirro stipulated that this “steady mixed crew” had contained persons who were not members of either trade union.

6.                 After the evidentiary portion of the consultation was over, the parties modified their positions in final argument.  The Painters proposed that the work assignment should be on a composite crew basis of 3 Painters to 1 Labourer.  The Labourers proposed that the work assignment should be on a composite crew basis of 1 Painter to 1 Labourer.  Sirro said two things: (a) the work assignment should be on a composite crew basis of 3 Labourers to 2 Painters and (b) the Board should not determine how the work previously assigned to non-union workers should be assigned, but should remit that issue back to the parties.  In this regard, counsel for Sirro relied on the Board’s decision in Calabria Cement & Tile, 2012 CanLII 8032 (February 16, 2012).  Neither trade union supported the second argument made by Sirro.

7.                 The Board does not accept Sirro’s second argument.  The facts of Calabria, supra, are readily distinguishable.  In that case, an employer tried to create a jurisdictional dispute where there was no conflict between the two allegedly competing trade unions.  Quite rightly, Vice-Chair John D. Lewis was having none of it.  This case is completely different.  There is a hotly contested dispute between two trade unions.  The fact that there are non-union workers in the mix just adds an extra layer of complexity to an already toxic labour relations brew that has been simmering for years.  Counsel for Sirro conceded in final argument that Sirro has no ongoing right to employ non-union workers to perform the work covered by the collective agreements of both trade unions.  Moreover, Sirro admits that the work performed by all the workers requires exactly the same skills.

8.                 The Board has been specifically tasked with determining who should perform the work in dispute.  It is claimed by both trade unions.  All parties acknowledge that each trade union should be assigned some of it.  The non-union workers do not have the right to perform any of it.  In these circumstances, the Board has the jurisdiction to determine the assignment of all the work in dispute, and should make that determination to fulfil its statutory mandate found at section 2 of the Act to “promote the expeditious resolution of labour relations disputes”.

9.                 Therefore, after examining the employer and area practice criteria, the Board will make an assignment of all the work in dispute.

10.              As noted in the Board’s July 23, 2015 decision, the initial briefs filed by the parties referred to approximately 200 contested projects performed by Sirro.  Given the inconsistent and conflicting materials about those projects contained in the briefs, the Board directed the filing of further documentary material and provided for limited oral testimony pertaining to those materials.

11.              Vince Sirro testified for Sirro.  Peter Plouskas testified for the Painters.  Mr. Sirro is the owner and operator of Sirro.  Mr. Plouskas is the Painters’ Business Representative specializing in EIFS/stucco work.  Despite being the owner and operator for Sirro, Mr. Sirro’s evidence was not of much assistance to the Board.  While Mr. Sirro was able to identify the overall hours worked by Sirro’s workers and the names of the projects they worked on, he was unable to supply details about specific projects.  Therefore, his testimony descended to the level of vague generalities that did little to illuminate how work was assigned on any particular project.  On the other hand, Mr. Plouskas was able to identify a number of projects and their detailed work assignments from his survey reports made on visits to the job sites.  While the survey reports did not come close to capturing all Sirro’s job sites, they are helpful and provide the only specific evidence of actual crew compositions on various projects.  Cross-examination of Mr. Plouskas by opposing counsel disclosed possible exaggerations in his evidence, but did not diminish his overall credibility or undermine the general veracity of his statements and records.

12.              All parties made reference to Sirro’s remittance reports.  Those reports are helpful but not determinative.  They do not identify the work done on specific projects.  Nor do they separate out the work in dispute from other work covered by the relevant collective agreements.  The Labourers’ remittances might cover grinding, floor levelling, and clean-up work separate from the work in dispute.  The Painters’ remittances might cover ICI work separate from the work in dispute.  While the parties acknowledge these frailties, and each trade union attacks the other for inflating its amount of practice, there is no reliable way to gauge the amount of the discrepancies except to say they exist.

13.              What then is the Board to make of Sirro’s employer practice?  The Board finds that the best place to start is Mr. Plouskas’ survey reports, and the second best place to look is Sirro’s remittance reports.  Thereafter, the Board will look at the balance of Mr. Plouskas’ will say statement, Mr. Sirro’s will say statement, and the declarations of other persons filed by the parties.

14.              The relevant time period for assessing employer practice is the time period during which both trade unions have held bargaining rights with Sirro: Intrepid General Limited, 2015 CanLII 68893 (October 23, 2015); TC Contracting Inc., 2015 CanLII 54967 (August 28, 2015).

15.              Mr. Plouskas filed a significant number of survey reports spanning a number of years.  For the reasons stated above, the Board finds his reports to be generally accurate.  A summary of his reports discloses the following:  

16.              Sirro’s remittance reports clearly indicate the amounts of hours remitted for members of the Painters and Labourers working under the respective collective agreements.  However, the hours reported may contain hours worked that relate to hours of work spent performing work other than the work in dispute: ICI work in the case of the Painters; and grinding, levelling and cleanup work in the case of the Labourers.  There is no question that the Painters enjoyed a significant edge in 2009-10, but that is the time when Sirro had an abundance of ICI work.  For the two years leading up to the instant dispute, there has been a very consistent pattern of 2 Painters to 1 Labourer shown in Sirro’s remittances.

17.              The Board will now turn to the balance of Mr. Plouskas’ will say statement.  The Board finds that Mr. Plouskas has made a valiant effort to determine who performed the work in dispute on Sirro’s various projects, and to sift out irrelevant work.  While cross-examination disclosed some exaggerations and flaws in Mr. Plouskas’ efforts, on the whole the Board finds Mr. Plouskas’ evidence to be credible and generally accurate.  Where documentary evidence exists, it tends to corroborate Mr. Plouskas’ written assertions and testimony. A fair characterization of his overall evidence would be that Painters performed a significant majority of the work in dispute, but with one or more Labourers involved on a more or less regular basis.

18.              Mr. Sirro’s will say statement is not helpful.  While Mr. Sirro identifies many projects performed by Sirro over the past decade, he is completely unable to elaborate on how the work in dispute was assigned on even one project.  Therefore, any general assertion by him on how work was assigned is not supported by any objective documentary evidence.  In these circumstances, Mr. Sirro’s evidence really amounts to nothing more than “wishful thinking” and the Board accordingly cannot attribute any weight to it.

19.              The Labourers filed one declaration from Business Representative Nuno Godinho; another declaration from Vincenzo Panetini, an employee of Sirro; and a third one from Damino Sirro, a principal of Sirro.  Their declarations establish that members of the Labourers perform the work in dispute.  They do not do much beyond that.  While that point was a live issue at the outset of the case, by the time of final argument it was conceded by the Painters in consideration of the detailed evidence before the Board.  As noted in paragraph 50 of the Labourers’ brief, the declarations filed by the Labourers do support the assignment of the work in dispute to a “composite stucco/EIFS crew of members of the Painters and members of Local 183”.  However, they do not say anything meaningful about what the make-up of the composite crew should be.

20.              The Labourers also submitted a declaration from Rocco Sirro.  In the mid-2000s, he performed the work in dispute as a member of the Labourers.  Then he left Sirro and created his own firm.  That firm is in contractual relations with the Labourers and performs the work in dispute under subcontracts from Sirro and other contractors from time to time.  Rocco Sirro remits a standard number of hours to the Labourers every month to maintain his pension and benefits, regardless of the amount of work he actually performs.  At the end of the day, his evidence provides more proof Sirro engages members of the Labourers to perform the work in dispute but does not do more than that.

21.              The Labourers also filed a declaration of Filippo Sirro.  He only began to perform the work in dispute as a member of the Labourers on the instant project.  Before that, he worked in Sirro’s shop.  Given these facts, the declaration of Filippo Sirro can have nothing to say about Sirro’s past practice of assigning the work in dispute.  Therefore, the Board will give it no weight.

22.              The Painters filed declarations from several non-union workers who have performed the work in dispute for Sirro for a number of years.  No party disputes their evidence.  No party disputes that the Labourers have never grieved this, or that the Painters did not grieve it up until the project that gave rise to this dispute.  The presence of non-union workers performing the work in dispute does not assist either trade union in this dispute.  The persistence of Sirro’s non-union work force speaks more to inertia and non-cooperation on the part of the two trade unions than anything else. It is not a work force that Sirro has any legal right to use, as was conceded by counsel for Sirro.  At the end of the day, it is not a factor that will affect how the Board divides the work between the two trade unions.

23.              The Board now comes to its conclusion on employer practice.  There is no way this conclusion can be arrived at with any kind of mathematical certainty.  This is not an electrical power systems sector dispute where mark-up meetings clearly indicate that one trade union received 5 work assignments while the competing trade union received 2 work assignments.  Rather this is the rough and ready world of the residential sector of the construction industry in the Greater Toronto Area.  Even the best evidence in this case is highly imperfect.  However, the Board must decide the issue as best it can having regard to the evidence before it.

24.              The best evidence is found in the survey reports of Mr. Plouskas and the remittance reports of Sirro.  All parties agree that all the evidence before the Board points in the direction of a composite crew.  The only question is the make-up of that composite crew.  The most prevalent, although certainly not only, ratio is that of 2 Painters to 1 Labourer.  Accordingly, on the unique facts of this case, that is what the Board finds to be prevailing employer practice.

25.              The relevant area practice is work within the residential sector of the construction industry in Ontario Labour Relations Board Area No. 8 : Kvaerner Construction Ltd., [2004] OLRB Rep. May/June 756; BIT Millwrighting Inc. (2005), 115 C.L.R.B.R. (2d) 248 (Ont.)

26.              Apart from the practice of Sirro, the Labourers rely on the practice of two other “dual trade” contractors, meaning contractors that have collective agreements with both trade unions.  The contractors in question are Saverino General Contracting Ltd. (“Saverino”) and Rocco Stucco Inc. (“Rocco”).  However, the only evidence the Board has before it of their practice is the declaration of Nuno Godinho.  That declaration is devoid of dates, times, projects or crew assignments of either Saverino or Rocco.  As such, it is of no assistance to the Board and can be given no weight.  At the consultation, the Board denied the request of the Labourers to give oral evidence about the practice of Saverino and Rocco in light of the failure of the Labourers to particularize it in a timely fashion.  The Board expects all parties to a jurisdictional dispute to file timely and complete sets of materials.  Extensions of time can be granted upon agreement of the parties and/or with leave of the Board, and indeed numerous extensions of time were granted by the Board in this very case.  In any event, what the Labourers were seeking to establish through this evidence was that Saverino and Rocco use composite crews of members of the Painters and the Labourers to perform the work in dispute.  That basic fact is no longer in dispute.

27.              The Painters have filed ample evidence of instances of single trade contractors, bound only to the Painters, assigning the work only to members of the Painters.  The Board has no reason to doubt that evidence.  However, evidence of the practice of single trade contractors carries little weight where the Board has evidence of the practice of dual trade contractors: PCL Contractors Canada Inc. (2004), 104 C.L.R.B.R. (2d) 132 (Ont.), Alliance Verdi Civil Inc., [2011] OLRB Rep. January /February 1.

28.              In light of the foregoing, the Board finds that the best evidence of area practice is that of the only dual trade contractor for which reliable evidence has been submitted, namely Sirro itself.

29.              Accordingly, the employer practice criterion yields a past practice consisting of a composite crew with a ratio of 2 Painters to 1 Labourer.

30.              A final review of the Board’s jurisdictional criteria reveals that there are 3 criteria which are not neutral.  The criterion of safety, skills and training favours the Painters.  Both the employer and area practice criteria point in the direction of a composite crew composed of 2 Painters and 1 Labourer.

31.              The Board’s objective in determining a jurisdictional dispute is to replicate what would have happened on a real life job site had the parties applied the right criteria.  The Board realizes that what happens on residential construction sites in the Greater Toronto Area is a fast-moving series of events not always amenable to academic solutions.  There is no question that Sirro has ordered its affairs in a way most favourable to Sirro without a great deal of attention to its legal obligations.  The inactivity and squabbling between the two competing trade unions has permitted the ongoing existence of a significant non-union workforce at Sirro.  There is no legal basis for such a workforce.  It is time for that non-union workforce to come to an end. That time is now.

32.              The Board will endeavour to fashion a practical solution.  The Board will direct the assignment of work in dispute to a composite crew where circumstances warrant to effect an equitable distribution of the work in question:  T.A. Andre & Sons (Ontario) Ltd., [1996] OLRB Rep. July/August 690; EKT 90 Inc., [1996] OLRB Rep. July/August 611; Board of Governors of Exhibition Place, [2015] OLRB Rep. September/October 756; Alliance Site Construction Ltd., 2016 CanLII 6788 (February 10, 2016).  In light of all the evidence adduced herein, the Board determines that the work in dispute should have been assigned to a composite crew, using a ratio of 2 Painters to 1 Labourer.  For greater clarity, the order of assignment should have been:  Painter, Labourer, Painter; Painter, Labourer, Painter; and so on.  None of the work in dispute should have been assigned to non-union workers.

33.              The Board wishes to thank counsel for their assistance in litigating this factually challenging matter.

34.              In the end result, this application is granted.  The Board directs that the work in dispute shall be assigned to a composite crew of Painters and Labourers in accordance with the terms set out in paragraph 32 above.