[1999] OLRB REP. NOVEMBER/DECEMBER 1042
0187-98-R Matteo Galeano, Applicant v. I.B.E.W. Construction Council of Ontario and International Brotherhood of Electrical Workers, Local 353, Responding Parties V. Lancor Electric (1996) Ltd., Intervenor
BEFORE: Inge M. Stamp, Vice-Chair.
APPEARANCES: P. Straszynski and Matt Galeano for the applicant; S.B.D. Wahl and M. Oram for the responding parities; Glenn Christie and Gino Bittonte for the intervenor.
DECISION OF THE BOARD; November 26, 1999
1This is an application filed under section 63 of the Labour Relations Act, 1995 (the "Act") for a declaration terminating the bargaining rights of the responding party for a province wide bargaining unit in the ICI sector of the construction industry.
2A vote was directed and held pursuant to the Board's decision dated April 24, 1998. An issue was raised before another panel of the Board resulting in the October 21, 1998 decision. That decision states in paragraph 2(i) and (ii) as follows:
- The parties have agreed that the Board issue the following declaration and direction:
i) the Respondent raised, a preliminary issue, the effect on the application of the application not having been served on affiliated bargaining agents as proper Respondents. The parties have agreed to adjourn today's hearing date and that scheduled for tomorrow, October 15, 1998. The parties have agreed to adjourn to new dates to be set by the Board. The Board has directed that the Respondent provide a list of those affiliated bargaining agents whom it takes the position on it to have been so served, and that list is attached hereto as schedule "A".
ii) the parties have agreed, without prejudice to any position that they may take on the return date of this hearing, that the Applicant shall in the interim serve a copy of the Application, together with a copy of this Endorsement, on those affiliated bargaining agents listed in schedule "A".
3This matter came on for hearing to deal with the responding union's preliminary issue that this application must be dismissed because it failed to comply with section 63(3) of the Act.
4Counsel for the responding union takes the position that section 63(3) of the Act mandates the applicant employee to deliver a copy of the application to each Affiliated Bargaining Agency (ABA) and each constituent member of the Employee Bargaining Agency (EBA). Counsel asserts each of these entities is a "trade union" under section 1(1) of the Act and an ABA and therefore must be served notice individually by the applicant.
5Counsel for the respondent union asserts the application is not timely because the ABAs and the EBA and the International Union did not receive notice from the applicant until after the open period ended. Counsel submits the applicant did not comply with section 63(3) of the Act or Rule 43cc and further that the Board has no discretion to relieve against the timeliness issue under section 63(3).
6Sections 1(1) and 63(3) of the Act read as follows:
- (1) In this Act,
"trade union" means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national, or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency.
- (3) The applicant shall deliver a copy of the application to the employer and the trade union by such time as is required under the rules made by the Board and, if there is no rule, not later than the day on which the application is filed with the Board.
7Rule 43cc(e) an applicant to do the following:
and must also deliver the following to the union not later than two (2) days after filing its application with the Board:
(e) a copy of the application for termination of bargaining rights (but not the material described in paragraphs (a), (b) and (c) of Rule 43z);
8The following facts are in dispute:
The Board sent out notices to all ABAs and any other locals including shop locals within the time period required by the Rules.
The applicant subsequently faxed copies to all ABAs.
None of the ABAs (including one ABA in whose geographic jurisdiction work was being done on the application date) responded to the Board's notices of the termination application.
The termination application named the Toronto Local 353 and the Provincial Council. Counsel for the responding party filed a response on behalf of those two entities.
Counsel for the respondent unions responded on behalf of the remaining ABAs and the remaining constituent member of the EBA, after having received the notices from the applicant.
The named "trade union" on the ICI Certificate issued by the Board is the Provincial Council. This entity was served by the applicant and named as the responding party in the style of cause. The Toronto Local 353 was named in paragraph 1(c) of the application as a responding party.
9The Board in its decision directing the vote found the application was timely. The union took the position it did not have to ask for reconsideration because the issue of timeliness was still a live issue by virtue of having raised it with the vote co-ordinator and with the Labour Relations Officer at the post-vote meeting. Counsel went on to say that the union had no proof that the panel making the timeliness finding read the union's response filed on behalf of the Provincial Council and the Toronto Local.
10There was no assertion of any prejudice to the responding parties by counsel for the union.
11Section 63(2) of the Act provides, in part:
63.(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 67, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,
12The application is with respect to a bargaining unit in the ICI sector. The parties to the Principal Agreement, which includes the ICI sector, are the two EBAs. The employer bargaining agency is "The Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario" and the employee bargaining agency is "The International Brotherhood of Electrical Workers and The IBEW Construction Council of Ontario (herein after called the Union)". The agreement goes on to say the EBA represents the following affiliated Local Unions 105, 115, 120, 303, 353, 402, 530, 586, 773, 804, 894, 1687 and 1739.
13The applicant employee served notice on the named trade union in the ICI certificate issued by the Board, namely the IBEW Construction Council of Ontario (the "IBEW Council"). The IBEW Council is one of two constituent members of the EBA.
14In these circumstances the Board finds that the applicant delivered the application to the trade union that is the party to the ICI collective agreement, as required by the Act and the Rules.
15The preliminary motion to dismiss this application is therefore dismissed.
16The Registrar is directed to schedule this matter to hear all remaining issues in dispute between the parties at the earliest date available.
17I am not seized.