IWA - Canada v. Saxon Athletic Manufacturing Inc.
[1990] OLRB Rep. May 618
2824-89-R IWA - Canada, Applicant v. Saxon Athletic Manufacturing Inc., Respondent v. Group of Employees, Objectors
BEFORE: M. G. Mitchnick, Chair, and Board Members W. A. Correll and R. R. Montague.
APPEARANCES: Roman Stoykewych, David W. T. Matheson and Harold Sachs for the applicant; Peter Quinlan and George Markovich for the respondent; Cheryl Conway and Sonia Williams for the objectors.
DECISION OF THE BOARD; May 15, 1990
1This is an application for certification in which the Board fixed March 1st, 1990 as the "terminal date", or the date under section 103(2)(j) of the Labour Relations Act for the receipt of evidence of "employee wishes" by the Board. Prior to the terminal date the Board was in receipt of a statement of desire or "petition" signed by a number of employees indicating that they did not wish to be represented by the applicant trade union. The number of names on the petition corresponding to individuals who had also signed membership cards indicating a desire to be represented by the applicant was, however, marginally short of that needed to make the said petition "numerically relevant" (subject to the outcome and effect of the employer's charges pertaining to the Union's methods of organizing in this matter). There was, however, a further petition forwarded to the Board on the terminal date, by Priority Post, containing the signatures of two more employees, and the parties recognize that if that second petition were allowed to be added to the first, the question of numerical relevance would be reversed in the petitioners' favour. The Board has accordingly received the extensive submissions of the parties on the issue of whether or not the second of these petitions ought to be accepted by the Board as delivered to it in a "timely" fashion.
2The Board's Notice to Employees of an Application for Certification provides, in accordance with its Rules of Practice:
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.
Section 73(1) of the Rules also states:
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 for a declaration terminating bargaining rights unless the evidence . -.
(b) is filed not later than the terminal date for the application.
At the hearing the Board directed the attention of the petitioners' spokespersons to the above passage in the Notice posted in the workplace, and inquired how it was that the petition in question came to be sent to the Board by "Priority Post". The petitioners acknowledged that they had read the notice, but that they knew that they had reached the last day for the sending of signatures, and that as they believed that these last two signatures might be important to their casey the representative attending at the Post Office inquired of the Post Office clerk what method was available to ensure that the document would get to the Board with the minimum delay possible. The representative was advised that the service she should choose in that circumstance was "Priority Post", as the Post Office would then guarantee next day delivery to Toronto. The petitioners' representative agreed to the selection of that service, and was given a receipt for the document filled out by the postal clerk, and showing both the date and the time of acceptance of that document on behalf of the Post Office.
3When it comes to compliance with the directions for delivery set out in its Notice to Employees, the Board has on numerous occasions made it clear that "close" is not good enough. In Durso Steel Limited, [1988] OLRB Rep. Sept. 883, for example, a petition was left on the Board's reception desk approximately one-half hour after the Board's offices had closed on the terminal date, and the Board ruled that it could not be accepted. The Board in the past has declined to accept as well petitions allegedly sent to it on the terminal date by private courier. Counsel for the Union argues that Priority Post is simply the Post Office's version of private courier service (in fact designed to compete with that), and that the approach of the Board in the past should be applied to the method adopted by the petitioners in this case as well. Counsel notes that this very issue of "Priority Post" has been considered by the Board in the Westin Hotel case, [1986] OLRB Rep. Oct. 1486, and held to be unacceptable. For the Board to now alter its approach in the present case, therefore, Counsel submits, would be "unfair in the extreme", and if the Board were inclined to do so, it should do so on a prospective basis only.
4Having considered the matter carefully, the Board does not find the submissions put forward by the Union in the present circumstances to be persuasive. The reason that the Board's Rules and Notice refer to "registered mail" is to attempt to avoid any evidentiary dispute over the date on which a document not delivered to the Board prior to the terminal date was placed in the custody of the Post Office. It is that act of "registering" delivery with the Post Office that is of interest to the Board, and we do not find ourselves in a position where, from that point of view, we feel we can or ought to say that the petitioners have failed to bring themselves within the language of the Rules or the Notice. Both of those sources of direction, as those who support the timeliness of the petition in this case point out, refer simply to "registered mail", in small letters. There have, however, been substantial initiatives by the Post Office in recent times to upgrade and market its various services offered to the public. From the literature filed with us, for example, it can be seen that the Post Office currently is offering services called "Registered", "Security Registered", and "Priority Courier Service" or "Priority Post". We do not think that the continued efficacy of the Board's Rules of Practice need depend on whether the Post Office in those marketing endeavours chooses from time to time to retain the use of the term "Registered" in its literature, as opposed, for example, to a term like "Secured". Nor do we feel it should depend on whether one service versus another is grouped from time to time in the Post Office's literature under a broader heading of "Registered Mail", as opposed to being represented by the Post Office as another (superior) class of service entirely. A more reasonable and practical approach, we think rather, is to consider the "registrable" elements of the new service being offered, and make a judgement on that basis as to whether it can fairly be said to provide delivery to the Board by a form of "registered mail". The Board's Rules of Practice of course apply to a variety of documents and circumstances, and the more narrow approach would, in addition, for no apparent practical purpose under our Rules, deny all parties the avenue of sending documents to the Board on the terminal date by an enhanced service that would permit the Board to receive and process those documents a great deal sooner than by the original service entitled "Registered Mail".
5The form adopted here, "Priority Post", is not analogous to private courier service, at least from the point of view of the language of the Board's Rules. To begin with, private courier service is not the "mail". Private courier service also places the attestation of date of delivery to the carrier in the hands of a private operator, rather than a government agency. On the requirement of being "registered", we note that with the "Priority Post" service the written receipt issued by the Post Office at the point of acceptance records not only the date of receipt (the information the Board is concerned with on the receipt for what is presently termed by the Post Office either "Registered" or "Security Registered" Mail) but the time of such acceptance as well. The "registration" particulars for "Priority Post", in other words, contain the critical information that those latter two forms of postal service currently offer, and more. And it is the presence of that written record of receipt itself, provided not by a private service but by the Post Office upon delivery to and acceptance by it of the document, that in our view brings the service currently entitled "Priority Post" within the meaning of the Board's Rules' "registered mail". The decision of the Board in Westin Hotel, supra, was given orally, as a matter of first impression, and by the time it came to be confirmed by the Board in written reasons, the petition had already been determined to be numerically irrelevant. On the basis of the full examination of the issue made available to us here, we are not persuaded that the decision of the Board in the Westin Hotel case, supra, was mandated by the language of the Rules, and we respectfully decline to follow it. As for applying what we find to be the appropriate interpretation prospectively only, consideration of that as the Union requests would be called for were there any conduct on the part of the Union in reliance upon the comments in the earlier decision of the Board. Here obviously there was none. The Union is simply hopeful, after the fact, that the election by the petitioners' representative to expedite delivery of the remaining signatures to the Board by the higher class of service referred to as "Priority Post" will disentitle the petitioners from having those additional signatures considered by the Board.
6Accordingly, as the parties were advised on May 1, 1990, the Board accepts as timely the second petition as well in this case, delivered to it by "Priority Post" and so forwarded on the terminal date set for the application. It should be noted that this case involves simply a full consideration, for the first time, of the expedited-delivery service currently being offered by the Post Office called "Priority Post", and ought not to be viewed as a relaxation in general of the Board's current approach to the filing requirements imposed by its Rules.