Ontario Labour Relations Board

[1988] OLRB Rep. September 883

0925-88-R United Steelworkers of America, Applicant v. Durso Steel Limited, Respondent, v. Group of Employees, Objectors

BEFORE: Ian C. Springate, Vice-Chair, and Board Members G. O. Shamanski and C. McDonald.

APPEARANCES: P. Turtle and P. Falbo for the applicant; Carl Peterson and Joe D'Urso for the respondent; D. Hutchinson and I. Mohamed for the objectors.

DECISION OF THE BOARD; September 9, 1988

1. This is an application for certification.

2. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

3. Having regard to the agreement of the parties, the Board further finds that all employees of the respondent in the City of Brampton, save and except forepersons, persons above the rank of foreperson, office, clerical and sales staff, constitute a unit of employees of the respondent appropriate for collective bargaining.

4. 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 29, 1988, the terminal dale 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(i) of the said Act.

5. There was delivered to the Board offices a statement in opposition to the application signed by six employees in the bargaining unit. The statement was date-stamped as having been received by the Board on Tuesday, August 2, 1988. On August 3, 1988 the Registrar wrote to a representative of the group of employees advising him that the statement appeared to have delivered to the Board after the July 29, 1988 terminal date fixed for the application. Representatives of the group of employees attended at the hearing, however, and contended that the statement had in fact been delivered to the Board's offices on Friday, July 29th.

6. The Board's offices close at 5:00 p.m. At the hearing, employee Dalton Hutchinson indicated that the following events occurred on July 29, 1988. Mr. Hutchinson attended at 400 University Avenue in Toronto, the building which houses the Board's offices, at about 5:30 p.m. He had with him the statement in opposition to the application. Mr. Hutchinson was stopped in the lobby of the building by a security guard. Mr. Hutchinson indicated to the security guard that he wished to deliver a letter to the Board. The security guard replied that the Board's offices were closed and accordingly he could not do so. Mr. Hutchinson then proposed that the security guard accompany him to the Board's offices while he dropped off some material. The security guard agreed with this proposal and accompanied Mr. Hutchinson to the receptionist's desk at the entrance to the Board's offices on the fourth floor of the building. No one was at the desk. Mr. Hutchinson left an envelope containing the statement on the desk, and then departed.

7. As already noted, the envelope containing the statement in opposition to the application for certification was date-stamped Tuesday, August 2, 1988. Monday, August 1st, was the Civic Holiday, a day the Board's offices were closed. Presumably the envelope was discovered by one of the Board's staff on August 2, 1988 and then date-stamped.

8. At the hearing, the issue was raised as to whether or not Phil Falbo, a full-time union organizer, had advised employees that they had until midnight on the terminal date to file a statement in opposition to the union. Employee Imtiaz Mohamed testified that Mr. Falbo had made such a statement to those employees who attended a union meeting held on or about July 18, 1988. Mr. Falbo denied making such a statement. It was his evidence that at the July 18th union meeting he was asked if union supporters could continue to get other employees to sign union cards, to which he replied that they could continue to do so since the union had until the terminal date to file any cards with the Board. Mr. Falbo denied giving any advice at the meeting concerning the filing of a document in opposition to the union. He testified that what he said was that employees should keep their eyes out for a petition and if they saw one being circulated they should keep notes about it.

9. Having considered the conflicting evidence of Mr. Falbo and Mr. Mohamed, we are led to conclude that Mr. Falbo's version of what he said at the union meeting is likely the more accurate. In this regard, it seems unlikely that Mr. Falbo, a union organizer, would offer advice to employees concerning the procedure for filing a statement in opposition to the union's application for certification. It makes more sense that he would have told employees who attended the union meeting that they should make notes about the circulation of any such document. It may well be that Mr. Mohamed subsequently learned of the procedure for filing a statement in opposition to the application from one of the Board notices and assumed that employees had until midnight on July 29th to file such a document.

10. As with union membership evidence, a statement in opposition to a certification application must be filed with the Board by the terminal date. This is provided for by Rule 73(1) which reads, in part, as follows:

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

(b) is filed not later than the terminal date for the application.

11. Rule 75(1) deals with the issue of when a document is deemed to have been filed with the Board. It provides as follows:

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 the time it is mailed.

12. The requirement that any statement in opposition to the certification application be mailed registered mail or received by the Board by the terminal date, was made known to employees by way of the posting of a Form 6 "Notice to Employees of Application for Certification and of Hearing", which stated as follows:

13. The Board has fixed Friday, the 29th day of July, 1988, as the TERMINAL DATE for this application.

4(1) The Board will not hear evidence or representations of employees objecting to certification of the applicant unless one or more documents, sometimes referred to as petitions, expressing objection to the certification of the applicant are filed with the Board.

(2) A document referred to in subsection (1),

(a) must be signed by the objecting employee or employees;

(b) must be,

(i) received by the terminal date if sent other than by registered mail, or

(ii) mailed to the Board by the terminal date shown in paragraph 3 if sent by registered mail;

No oral evidence of employee objection to certification of the applicant will be accepted by the Board except to identify and substantiate written evidence which complies with these requirements.

13. As already noted, the terminal date is the cut-off point by which a union must file its membership evidence with the Board and employees must file any statement indicating that they no longer support the union. The Board also requires that any "revocations" or "counter-petitions" by employees indicating that they wish to withdraw their names from a statement in opposition to a union be filed by the terminal date. Given the importance of a final cut-off point for the filing of such material, the Board has consistently declined to accept material relating to employee support for or opposition to a union filed subsequent to the terminal date. See: Addressograph-Multigraph of Canada Limited, [1968] OLRB Rep. March 1183. The Board made the following comments with respect to this issue in The Westin Hotel case, [1986] OLRB Rep. Oct. 1486:

14. ... It is our view that the terminal date, and Rules relating to it, are not technical matters. Furthermore, the need for clear rules and their consistent application requires the Board to make it clear to parties when their documents will be considered filed and when all evidence must reach the Board. The question of the appropriate terminal date is not equivalent to the failure to name the employer on a petition or the failure to designate the section under which a complaint has been made, situations in which amendments are permitted; rather, as pointed out above, it addresses a matter of significance in labour relations: the date at which all parties can be satisfied all evidence must be filed if it is to be considered by the Board.

15. Rule 75(1) provides that a document shall be deemed to be filed "at the time it is received by the Board". A document left on a deserted desk at the Board's offices after office hours cannot reasonably be said to have been "received" by the Board. Rather, a document is received by the Board only when it comes into the hands of a person authorized by the Board to receive material on its behalf. In the instant case, the relevant document was received by the Board when it came into the possession of a member of the Board's staff on Tuesday, August 2, 1988. This being the case, we are satisfied that the document in question was not filed by the terminal date, and hence does not meet the filing requirements of Rule 73(1). Accordingly, the document will not be given any weight.

16. A certificate will issue to the applicant.