[1984] OLRB Rep. October 1469
0817-84-R Teamsters Local Union No. 879, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Tryverse Products Ltd., c.o.b., as Lilo Products, Respondent, v. Group of Employees, Objectors
BEFORE: Owen V. Gray, Vice-Chairman, and Board Members W. H. Wightman and E. G. Theobald.
APPEARANCES: A. L. Lefort, Eric Del Junco and Ken Petryshen for the applicant,' Louisa Davie and Leonard Maclin for the respondent,' Karen E. McGuire, Donald J. Perry and Andrew K. Martin for the objectors.
DECISION OF THE BOARD; October 15, 1984
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board further finds that all employees of the respondent in the City of Hamilton, Ontario, save and except foremen, persons above the rank of foreman, office, clerical, and sales staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made, were members of the applicant on July 5, 1984, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
In connection with this application, the Board received two handwritten statements of desire. One, dated July 5, 1984 and containing three signatures, was posted to the Board by registered mail on the terminal date. There is no question that it is properly before us. The second statement of desire is also dated July 5, 1984. In the circumstances set out below, there is a dispute between the parties as to whether the second statement is properly before us. The Board heard argument on that issue at its hearing in this matter, reserved its decision, and heard the parties' evidence and submissions with respect to the origination and circulation of both statements of desire.
The circumstances of filing of the second statement of desire are not in dispute. Andrew Martin initiated the first statement of desire on the terminal date, July 5, 1984. By 5:30 p.m. he had three signatures on it. He then went to the post office, and posted it to the Board by registered mail. He and a fellow signatory then met at a restaurant and, shortly thereafter, learned that another employee, whose signature they had earlier sought and failed to obtain, was now prepared to sign. They attended at this employee's home, where the second statement of desire was written out and signed. At this point in the evening, the post office in Hamilton was closed. Martin and his colleague determined to drive to Toronto and deliver the second statement of desire by hand to the Board's offices at 400 University Avenue. They arrived at 9:15 p.m., entered the lobby of the building at 400 University Avenue and spoke to the security guard on duty there. She took them to the fourth floor, where the Board's administrative offices are located. They put the envelope containing the second statement of desire on the Board's reception desk in the elevator lobby of that floor. The security guard then wrote out and gave Mr. Martin an acknowledgement of the arrival (to use a neutral term) of the envelope in question. At the time of this attendance at the Board's premises, no one was on duty at the reception desk and it was not apparent that anyone was present in the Board's offices. The security guard in question is not an employee of the Ontario Labour Relations Board, and there is no evidence that any Board employee saw or handled the envelope or its contents at any time on the terminal date. The foregoing facts were all agreed to by counsel for all parties, without the necessity of formal proof.
Subsections 73 (1) and 75 (1) of the Board's Rules of Procedure provide:
73.-( 1) Evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall not be accepted by the Board on an application for certification or for a declaration terminating bargaining rights unless the evidence is in writing, signed by the employee or each member of a group of employees, as the case may be, and,
(a) is accompanied by,
(i) the return mailing address of the person who filed the evidence, objection or signification, and
(ii) the name of the employer; and
(b) is filed not later than the terminal date for the application.
75.-( 1) Where a document is required to be filed by these Rules, filing shall be deemed to be made,
(a) at the time it is received by the Board; or
(b) where it is mailed by registered mail addressed to the Board at its office at 400 University Avenue, Toronto, Ontario, M7A 1 V4, at the time it is mailed.
The effect of these rules on the filing of statements of desire is expressly set out in the Notice to Employees of Application for Certification and of Hearing (Form 6) which was posted, as required, in the respondent's premises and read by Mr. Martin before commencing his petition activities. Paragraphs 5 and 6 of that notice read as follows:
- The statement of desire must be,
(a) received by the Board not later than the terminal date shown in paragraph 3; or
(b) if it is mailed by registered mail addressed to the Board at its office, 400 University Avenue, Toronto, Ontario, M7A 1V4, mailed not later than the terminal date shown in paragraph 3.
A statement of desire that does not comply with paragraph 4 and 5 will not be accepted by the Board.
The threshold question is whether the physical delivery of the statement of desire to the Board's premises, in the circumstances outlined, results in the statement of desire having been "received by the Board" at the time of delivery to the Board's offices, in the absence of any evidence that it came into the hands of any person employed by the Board at any time on that day. In other words, can the words "received by" be interpreted as meaning "delivered to", or must they be interpreted as meaning "knowingly accepted by". The latter interpretation would be appropriate in a context from which it was apparent that receipt triggered some immediate obligation on the part of the recipient: see Alaska Trainship Corp. v. Canadian Merchant Service Guild, 1973 CanLII 1154 (BC SC), 41 D.L.R. (3d) 116 (B.C.S.C.). When "receipt" results in criminal liability, as with receipt of stolen goods, then the requirement of knowing acceptance springs as much from the criminal law concept that mens rea should be a necessary element in the definition of criminal behaviour as it does from consideration of the meaning of the word receive
Nothing in Form 6 suggests that a deadline for filing of documents is being specified because the Board is obliged to take some step immediately upon receipt. This becomes obvious from the fact that the alternative to arranging that a document be "received by" the Board is posting by registered mail. It would be apparent to anyone reading Form 6 or Rule 75 that if a document is filed by registered mail, the deemed filing date is not a date on which the Board can expect or be expected to do anything with the document filed. Indeed, the reader could fairly predict that a document left at the Board's premises after office hours would come to the attention of Board employees the following morning — earlier than a document posted by registered mail on the same day. The reader would likely conclude that the registered mail alternative would not be offered if the object of the rule were to ensure that a document was actually in the hands of an employee of the Board before midnight on the terminal date. Nothing in the notice expressly requires that a document be received by a particular time of day or by a particular (or any) officer or employee of the Board. It seems unlikely that persons to whom the Board's notice is addressed would anticipate that paragraph 5(a) cannot be satisfied unless the bearer of a document can arrange for it to be physically handled on or before the terminal
date by an appropriate Board employee, whomever that might be. We believe that reasonable expectations that employees would have after reading the Board's notice would be defeated if the "accepted by" interpretation were adopted. Nothing in the Board's other rules or procedures compels or prefers the "accepted by" approach.
If Rule 75(l)(a) were interpreted so as to require some positive act on the Board's behalf in order for a document to be "received by" it, a number of questions would arise. The first would be: who has the power to "accept" filings on behalf of the Board? On whom has this power to accept been conferred or imposed?: see section 102(15) of the Act. It is not at all apparent that such a power has been conferred on Board employees generally. The next question would be: how is acceptance to be proved by the party filing the document? The Board's date stamp is not conclusive irrebutable evidence of the date of receipt. Documents delivered to the Board are date stamped for internal administrative purposes. The date affixed is normally the date the document is delivered, because most documents delivered to the Board arrive during the hours of employment of the Board personnel responsible for processing and the date stamping incoming mail. While the date stamp is an important aid to the Board and its administrative staff in the processing of files, it has no official status under the Board's rules. A document "accepted by" a Board employee after the Board's mailroom staff left work would not normally be date stamped until the following day; no Board rule requires the after-hours employee recipient of mail to seek out and operate the mailroom employees' date stamping machine. Even if "received by" were interpreted to mean "accepted by", the Board would have to be prepared to act on evidence that the date of receipt has not been accurately recorded by the Board's date stamp, just as the Board is prepared to act on evidence that postal registration records are inaccurate: see Hoffman Concrete Products Ltd. [1976] OLRB Rep. Feb. 35. Short of demanding to follow the document to the mailroom or insisting on the Registrar's handwritten receipt, how could the bearer of documents for filing ensure he has complied with the "accepted by" test and can prove it? The practical answer is that he could not, particularly in view of section 109 of the Act, unless the Board and the parties who deal with it were all to adopt a far more formal approach to day-to-day dealings.
The Board's rules, procedures and notices could, and perhaps should, be amended to clarify rule 75(1 )(a). As the rule reads presently, however, we conclude that a document delivered to and left at or in the Board's administrative offices is a document received by the Board at the time of delivery, no matter who was or was not present in those offices at that time. It is conceded that the petitioners parted with the envelope and its contents at the Board's reception desk at 9:15 p.m. on the terminal date. We conclude that the filing of the second petition document was timely.
On the basis of the evidence heard by the Board with respect to the origination and circulation of the statements of desire, the applicant trade union argues that we should not treat either document as voluntary. Counsel for the applicant concedes there is no evidence of actual management involvement in the origination or circulation of either statements of desire. He points, however, to the fact that the respondent, after learning of the existence of the union's organizing campaign, commenced using written disciplinary warning letters. Previously, warnings had always been given orally. We heard evidence of the respondent's manager, and are satisfied, that this change in practice was a result of his belief that he should be cautious in speaking to his employees directly, and careful to record the nature of his communications with them during the sensitive period of an organizing campaign. Counsel for the applicant does not challenge this motivation, but observes that a change of this sort coincident, and obviously as a result of, the appearance of a trade union would convey a message, intended or not, that things will change if the employer has to deal with a union. Counsel argues that the effect of this on the employees would be such as to impair their ability to voluntarily express their wishes.
Mr. Martin and Mr. Perry, both employees in the small unit in question, testified that it was not the introduction of the written warning system which prompted them to sign the statement of desire. Their evidence is that after notice of a previous certification application by the same applicant was posted early June, union supporters became arrogant and emphasized the changes in work practices which unionization would and could effect in the work place. These other employees began asserting control over methods of performing work, behavior to which the manager had not reacted positively and which additionally, had had an adverse impact on Mr. Martin's workload. The new written warning system seemed to these objectors not to cool the manifestations of other employees' pro-union ardor; if anything, they inflamed them. Their petition was a reaction to the behaviour of these other employees; in common parlance, the petitioners were "turned off'. The evidence of these two petitioners was not seriously challenged. While we cannot assume that the motivation of the other signatories was the same as that of the petitioners, we are satisfied on all the evidence that, viewed on an objective basis, the employer's behaviour did not impair its employees freedom of expression to the point at which their signatures on a statement of desire become involuntary, as that term is understood in the Board's jurisprudence. We are satisfied that both statements of desire are voluntary. The presence on these statements of desire of signatures of persons who have also signed membership applications puts in doubt the continued desire of those persons for representation by the applicant in collective bargaining. The number of membership applications on which doubt has not been so cast would alone be insufficient to entitle the applicant to certification without a vote. In those circumstances, and notwithstanding that more than fifty-five per cent of the employees in the bargaining unit on the application date were members of the applicant on the terminal date, the Board will ordinarily exercise its discretion under section 7(2) to order a representation vote. We see no reason not to do so in this case.
Accordingly, a representation vote will be taken of the employees of the respondent in the bargaining unit. All employees of the respondent in the bargaining unit on July 13, 1984, who do not voluntarily terminate their employment or who are not discharged for cause between that date and the date the vote is taken will be eligible to vote.
Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.
The matter is referred to the Registrar.