Ontario Labour Relations Board
0174-01-R Tony Monaco, Applicant v. The International Brotherhood of Electrical Workers and The IBEW Construction Council of Ontario and affiliated IBEW Local Union 353, Responding Parties v. Midtown Enterprises Limited, Intervenor.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; September 12, 2001
Decision
1This is an application to terminate bargaining rights in the ICI sector of the construction industry. By decision dated August 8, 2001, I directed the International Brotherhood of Electrical Workers and the IBEW Construction Counsel of Ontario and affiliated IBEW Local Union 353 (the union) to provide submissions with respect to the vote eligibility of the four persons they had challenged. The applicant and Midtown Enterprises Limited (the employer) were given an opportunity to respond. The union did provide timely and full submissions. Only the applicant responded.
2The union has abandoned its challenges to Kenneth Faria, Zeljko Kucinic and Tony Monaco. As a result, all three are eligible to vote. The union maintains its challenge to David Burlo, and has explained why. The applicant, although responding to the union’s challenge, has indicated that it is “…prepared to drop Mr. Burlo’s name from the list solely for the purpose of counting the ballots in his [sic] application. For the purposes of the vote, the applicant respectfully asserts that the Board would not need to inquire into or determine the merits of the respondent’s [the union’s] challenge”. In the alternative, the applicant proposes that the Board count the ballots of the three voters agreed to be entitled and only in the event that Mr. Burlo’s ballot becomes relevant would the Board inquire into his eligibility to vote. The applicant’s counsel also submitted that in the circumstances of this case, the Board should count that single ballot
3Since the applicant has, effectively, agreed that Mr. Burlo’s ballot not be counted, there is no need for the Board to consider the merits of the alternative proposal.
4The Board directs the counting of the ballots cast by Mr. Faria, Mr. Kucinic and Mr. Monaco. This file is referred to the Manager, Field Services, to arrange the counting of the ballots. It is hoped that the ballots can be counted before the scheduled hearing dates.
5This matter, and only this matter, (that is not the union’s referral of grievance with respect to the continued employment of Mr. Burlo), is scheduled for hearing on October 1 and 2, 2001. In its response, the union made allegations that the employer initiated this application, contrary to section 63 (16). Those allegations have not been particularized beyond what is set out in paragraph 12 of the response. It may be that the parties’ attention has been focused more on the voter eligibility issues to this point. In the event that the union maintains its position that the employer has contravened section 63(16), it is required to meet the obligations of Rule 38 of the Board’s Rules of Procedure by no later than September 24, 2001.
“Mary Ellen Cummings”
for the Board