[1985] OLRB Rep. March 431
3030-84-R International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, Local 128, Applicant, v. 3-L Filters Limited, Respondent, v. Sheetmetal Workers' Conference and Sheetmetal Workers' International Association Local 562, Intervener, v. Group of Employees, Objectors
BEFORE: Harry Freedman, Vice-Chairman, and Board Members I. M. Stamp and H. Kobryn.
APPEARANCES: Malcolm Boyle, Stan Petronski and Reg White for the applicant; Ian S. Campbell, Les A. Kadar and Werner G. Joch (March 8 only) for the respondent; S. Wahl (March 1 only) for the intervener, T. J. Billo (March 8 only), Rick Tackacs, Charles G. Rose (March 1 only) and Rick Milne (March 8 only) for the objectors.
DECISION OF THE BOARD; March 15, 1985
The name of the respondent is amended to read: "3-L Filters Limited".
This application for certification initially came before the Board on March 1, 1985 before a differently constituted panel. At the outset of the hearing on that day, counsel for the intervener advised the Board that it was withdrawing its intervention. Counsel stated that the intervener did not wish to obstruct the application by the applicant to represent the employees of the respondent engaged in shop fabrication work and that the interest of the intervener was being pursued in a proceeding under section 124 of the Labour Relations Act before the Board against the Electrical Power Systems Construction Association (EPSCA) and Ontario Hydro in relation to the sub-contracting of shop fabrication work allegedly contrary to the collective agreement between the intervener and EPSCA. That panel of the Board then referred this matter to a Labour Relations Officer, but the case was not reached on that day. The application was subsequently rescheduled for hearing and came before this panel of the Board on March 8, 1985.
The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.
Before the Board entertained submissions with respect to the description of the appropriate bargaining unit, all parties agreed that the Board should first deal with whether some of the membership evidence filed by the applicant in support of its application was filed on or before the terminal date. After the Board heard the evidence and submissions of the parties on that issue, it recessed to consider the matter and then returned to deliver the following oral ruling:
In this application for certification, Reg White, an assistant business manager of the applicant, attended at Postal Station "E" in Hamilton, Ontario at approximately 5:40 p.m. on February 21, 1985 to mail an envelope (see exhibit #1) containing applications for membership and receipts by registered mail to the Board. February 21, 1985 was the terminal date in this application. The postal clerk who handled the transaction, Carl George, advised Mr. White that his mail would not be dispatched until the next day and would bear the next day's registration date. Mr. George and Mr. White both testified that Mr. White wanted it registered on February 21. Mr. George accepted the envelope and numbered it when he received it on February 21. Mr. George cancelled the postage stamps and stamped the envelope with a date stamp dated February 22 and also gave Mr. White a registration receipt dated February 22. (See exhibit #2.)
Mr. George explained that Postal Station "E" closes at 5:45 p.m. with the last dispatch of registered mail from that office taking place at 5:30 p.m. He said that postal regulations permit him to accept registered mail after that time of day because the mail can be secured in the Post Office vault provided he advises the customer that it will be dispatched and dated the next day. Mr. George also explained that a number is placed on a registered mail envelope so that it can be traced.
Counsel for the applicant submits that the membership documents were mailed by registered mail on February 21, 1985. Counsel for the respondent and counsel for the objecting employees submit that the membership documents were not mailed until February 22 because that was the date that the envelope containing those documents was dated, processed, and dispatched by the Post Office.
All counsel agree that section 75(1)(b) of the Board's Rules of Procedure govern this matter. That section states:
Where a document is required to be filed by these Rules, filing shall be deemed to be made,
(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.
[emphasis added]
The Board in this case must determine the time the envelope containing the membership documents was mailed by registered mail. It is clear to us that the envelope containing the membership documents was deposited with the Post Office on February 21. It was numbered at the Post Office, the cancellation stamp with the next day's date was applied to it, and it was placed in the Post Office vault on February 21. There is no doubt that the Post Office had exclusive custody of the envelope and that the postal clerk had numbered the envelope so that it would appear on the list of registered mail after it was received from Mr. White on February 21. The registered mail list was dated February 22, but the entry relating to Mr. White's envelope was made to that list on February 21.
In our opinion, the depositing of the envelope with the postal clerk who stamped and numbered it and entered it on the registered mail list, constitutes mailing by registered mail within the meaning of the Board's Rules of Procedure. Since that happened on February 21, 1985, we find that the membership documents were mailed by registered mail to the Board on February 21, notwithstanding that the envelope and receipt were dated February 22, 1985.
/Balance of decision omitted]