Christian Labour Association of Canada v. Lutheran Nursing Home (Owen Sound)
[1994] OLRB REP. October 1362
1691-94-R; 2096-94-U Christian Labour Association of Canada, Applicant v. Lutheran Nursing Home (Owen Sound), Responding Party v. Rosanne Gillard and Sandra Marshall, Objecting Employees; Christian Labour Association of Canada, Applicant v. Rosanne Gillard and Sandra Marshall, Responding Parties
BEFORE: Robert Herman, Vice-Chair.
APPEARANCES: Elizabeth Forster, Ed Grootenboer, Ed Bosveld, Betty Westrick and Mary Charlton for the applicant; John H. E. Middlebro, Lloyd Wiseman, Sylvia Statham and Joan Robinson for the responding employer; Mona Anis, Rosanne Gillard, Sandra Marshall, Sandra McLeod and Yvonne Chrysler for the group of employees.
DECISION OF THE BOARD; October 18, 1994
This is an application for certification and a related complaint filed pursuant to the provisions of section 91 of the Labour Relations Act.
At the commencement of the hearing on September 19, 1994, the applicant advised that it was no longer relying upon the provisions of section 9.2 of the Act in support of its certification application, and that it was no longer asserting that the responding parties had breached sections 65, 67, or 72 of the Act. In the result, it was asserting that the responding parties had breached section 71 of the Act.
A petition (statement opposing the certification of the applicant) had been filed by various individuals. There was a dispute over whether it had been filed in a timely manner and could be considered by the Board, and the Board first dealt with this issue. All parties agreed that in dealing with the timeliness issue, the Board could rely upon the facts as asserted by the petitioners, or as otherwise agreed amongst the parties.
In the early summer of 1994, Ms. Gillard, one of the petitioners, took steps to learn of the mechanism for opposing the union. She went to the library and read material there, and learned that employees opposed to a union could file something called a "petition". She subsequently phoned the Lawyer Referral Service administered by The Law Society of Upper Canada, and was referred to a lawyer located in Barrie, Ontario. She had some difficulty getting through to the lawyer in Barrie, and never did meet him. Instead, she saw a lawyer in Owen Sound, on August 10, 1994 at 4:00 p.m.
The following day, August 11, 1994, she received written advice from that lawyer as to how to go about filing a petition with the Board. That written advice did not include any indication that Ms. Gillard ought to have filed any petition by registered mail, or that she not use private courier service.
Also on August 11, 1994, the certification application was mailed by registered mail by the applicant to the Board. That evening, Ms. Gillard caused the petition, containing a number of signatures of employees opposed to the union, to be sent by private courier to Toronto, to the Board premises. Ms. Gillard put the petition into the hands of the courier at 7:30 p.m. on August 11, 1994. The petition was delivered and received by the Board the next day, August 12, 1994. The application for certification, sent by registered mail on August 11, was received by the Board on August 15, 1994, three days after the petition had been received by the Board. It was given an application date of August 11th, reflecting the date on which it had been mailed registered. This was done in accordance with Rule 8 of the Board's Rules.
Because the application date was August 11th, and because the petition was not received until August 12th, the petition was treated as untimely, pursuant to section 8(4) of the Labour Relations Act.
Counsel for the intervening employees asserted that the petition was timely on three grounds: first, there was no policy reason or rationale for applying or interpreting section 8(4) of the Act, in a manner that would lead to a finding that the petition here was untimely; second, the petition had in fact been "filed or presented" by the application date; third, in any event, the Board had authority under Rule 22 to waive strict compliance with the Rules, and thus ought to waive such requirement and conclude that the petition was timely.
After hearing the submissions of the parties, and after reserving its decision on the issue overnight, the following day the Board orally ruled as follows. The reasons have been expanded upon slightly here.
"1. The question for the Board is whether the petition before it was filed in a timely manner. If the petition was not timely, then it will not be considered by the Board.
The circumstances are such that the application for certification was mailed by registered mail on August 11, 1994. Also on August 11, the petition was given over to a private courier service in Owen Sound, for delivery to the Board. This method was chosen by the petitioners to ensure quick and safe delivery, and because the petitioners were unaware, although they had made significant efforts to become familiar with the Board process, of the Board's Rules. Specifically, they were unaware of the provisions of Rule 8, which reads as follows:
The date of filing is the date a document is received by the Board or, if it is mailed by registered mail addressed to the Board at its office at Toronto, the date on which it is mailed, as verified in writing by the Post Office. However, the date of filing in cases brought under sections 11.1, 41, 73.1, 73.2, 92.1, 92.2, 93, 94, 95, 126 and 137 of the Act is the date the document is received by the Board.
On August 12, 1994, the petition was actually delivered to the Board, by the courier company. Three days later, on August 15, 1994, the application for certification was actually received by the Board.
Pursuant to the provisions of Rule 8, since the application for certification had been sent to the Board by registered mail, the application was assigned an application date of August 11, 1994, the date on which it was mailed registered.
Since the petition had not been mailed by registered mail, but had been delivered by private courier, it was treated as having been "filed" on the day it was actually received, August 12, 1994, the day after the application date.
Upon receipt of the petition on August 12, 1994, the Board's staff advised the petitioners that their petition was untimely.
This in turn led to the issue before the Board, as to the timeliness of the petition.
The Board might briefly refer to the statutory and regulatory provisions on point. Pursuant to section 8(4) of the Labour Relations Act, petitions must be "filed or presented" prior to or on the application date of the certification application. Section 8(4) reads as follows:
8.- (4) The Board shall not consider the following evidence if it is filed or presented after the certification application date:
Evidence that an employee is a member of a trade union, has applied to become a member or has otherwise expressed a desire to be represented by a trade union.
Evidence that an employee who had become or had applied to become a member of a trade union has cancelled, revoked or resigned his or her membership or application for membership or has otherwise expressed a desire not to be represented by a trade union.
Evidence that an employee who had become or had applied to become a member of a trade union has done anything described in paragraph 2 but has subsequently changed his or her mind by becoming a member again, by reapplying for membership or by otherwise expressing a desire to be represented by a trade union.
It is a statutory requirement therefore that renders petition untimely if they are not received on or before the application date.
The Board also has various Rules which address the timing of materials, including, for example Rules 8 and 47. Here, it is particularly the provisions of Rule 8 that apply.
The Board acknowledges that in a sense, but for the provisions of Rule 8, this petition would have been timely, since (but for Rule 8) the application for certification would not have been deemed to have been filed on August 11, when it was mailed registered mail, but would have been filed on the day of actual receipt of August 15, 1994.
It is important however to understand that Rule 8 speaks generally to filings with the Board, and not specifically to petitions or applications for certification. In essence, it states that a filing date, for many types of documents filed (including both applications for certification and petitions opposed to certification) is the date on which something is actually received, or for one prescribed alternative, registered mail, on the date the document or material is mailed by this method.
The reason for this Rule is primarily to accommodate the interest of parties who are located out of Toronto. It is designed to facilitate their ability to file documents in a timely manner, without having to incur the cost of actually delivery to the Board's offices in Toronto, whether such delivery be in person or through courier. Thus Rule 8 applies evenly to all parties, whether unions, employers, or individual employees.
But the Board has determined, and implemented through its Rules, that it is only through registered mail, utilizing the services of Canada Post, that the result will be that the filing date will be other than the date of actual receipt by the Board.
The Board has concluded, after decades of experience, that a bright line clear test is needed with respect to determining the timeliness of documentary material. This is particularly true and necessary in light of the recent amendments to the Act and, more specifically, the provisions of section 8(4) of the Act, which give such importance to the timing of materials filed on or before the application date.
Again, the Rule is not designed to penalize petitioners, but rather to enhance their ability to participate.
The hardship for petitioners is not Rule 8; it is section 8(4) of the Act. Rule 8 does not take away a method of filing from petitioners, it only provides an additional method beyond the obvious method of filing through actual delivery to the Board. Here, had the petitions been filed by registered mail, they would also have been deemed to have been filed on the date on which they were mailed registered.
The Board recognizes that, because of the provision of Rule 8 here, the applicant obtained an application date of August 11, 1994, and the petitioners were likely unaware of this application date at the time they sent their materials to the Board. Indeed, the Board as well would have been unaware of the application on the application date, and, as with the petitioners, only became aware of it on August 15, 1994.
But this is a problem generally for petitioners in certification applications. The applicant union has sole control of picking the application date, and by virtue of the provisions of section 8(4) of the Act, the application date is now the cut-off date for the filing or presenting of petitions. This problem however, exists for petitioners whether or not an applicant utilizes registered mail as its method of filing an application. Here, had the applicant filed its application by actual delivery on August 11, the same problem would have existed for the petitioners.
The petitioners here rely upon the effort they made to learn of the correct way to file their petition, and the fact that they were unaware of the registered mail option. While the Board is sympathetic to their circumstances, parties are expected to know the provisions of the applicable law, and this is not a reason for the Board to conclude that a petition that is otherwise untimely should be found to be timely.
Turning to the specific arguments raised by the petitioners, they first assert that the filing meets the spirit (or wording) of Rule 8, because the use of a private courier is akin to the use of registered mail, and that there is no valid reason here to reject the petition as untimely. In this respect, they rely upon the Board's decision in Saxon Athletic Manufacturing Inc., [1990] OLRB Rep. May 618, a case which arose under the predecessor Rules (which had a Rule akin to the current Rule 8). There, the Board held that utilization of Canada Post priority post system qualified as forwarding something by registered mail, even though the Rule only referred to "registered mail".
The Board is not persuaded by this argument. The intent of Rule 8 is that Canada Post is to be utilized, rather than a private courier system. The decision in Saxon is consistent with this. To the Board, it does make a difference that the courier service selected is the public post system rather than private couriers. Private couriers are more varied and flexible in their arrangements and procedures, including their procedures for dating and delivering material. They may perhaps be more flexible with respect to satisfying a customer's particular needs. In short, there is no consistency in their practices, and thus the Board is not prepared to rely on such practices to the same extent as if materials were sent by Canada Post.
Use of a private courier system of course remains permissible; it is only that the filing date will remain the date of actual receipt by the Board.
The intervening employees also argued that their petition was timely in that it had been "filed or presented", within the meaning of this phrase in section 8(4) of the Act, on or before the application date. They argued that putting it into the hands of the private courier service, and thus doing all that they could to ensure its delivery, constituted filing or presenting it, and as this had taken place on August 11, the application date, the petition was in fact "filed or presented" on or before the application date.
Given the context of this phrase in section 8(4) of the Act, where the application date is given such paramount significance in the legislation, the Board cannot find that "presented" means putting material into the hands of a private courier. To the contrary, "filed or presented" means filing with or presenting materials to the Board, and not to the method or mechanism of carriage or delivery.
The intervening employees also argued that the Board ought to apply the provisions of Rule 22, to relieve them from the strict requirements of Rule 8 and any other Rules which would render the petition untimely here. Rule 22 reads as follows:
The Board may relieve against the strict application of these Rules where it considers it advisable.
The Board accepts that it has the authority to find the petition here to be timely. However, for the Board to so find would not simply be relieving from the requirements of Rule 8 in the circumstances, but would effectively be to change the provisions of Rule 8. Relief from the requirements of the Rules is appropriate in a number of circumstances, including where the Rules themselves set a time for responding, but a party with reasonable cause is unable to comply with the set time periods. Here, however, it is the Labour Relations Act which demands that a petition be filed by the application date, not the Rules. Rule 8 only indicates that if anything is sent by registered mail, then the date of filing is when those materials are mailed.
It is not apparent what relief we could appropriately give here. If the application date was changed, then the petition would be timely. The Board could accomplish this by nullifying the Rule for the applicant, so that the application date is the date of actual receipt, and not when mailed registered. But this relief would be unwarranted. To do so would mean the petitioners would have effectively determined the application date of a certification application, rather than the union, and would mean that the union here, which reasonably relied upon Rule 8, would have its provisions rendered inapplicable for no reason attributable to its own conduct. This is not an appropriate result.
If the application date is therefore to remain at August 11, as it should in the Board's view, what relief against the Rules can be given by the Board that would render the petition timely? There is no Rule that the Board could give relief from, which would render the petition timely without at the same time changing the application date. If the application date remains unchanged, then declining to apply Rule 8 to the petition would still mean the petition is untimely. It would still have been filed the day after the application date.
In effect, the intervening employees ask that the Board accept that the filing occurred on a date other than it really was filed, or alternatively, that the Board nullify or change the application date of the entire application.
Neither response is appropriate here.
Again, it appears that the intervening employees' real quarrel is with the provisions of section 8(4) of the Labour Relations Act, and not with the Board's Rules. If there is any unfairness or hardship created here, it is in the Board's view not the Rules which create it, but the Act. It is the Act which makes this petition untimely.
In balance, the Board concludes that the petition here is untimely, as it was neither received by the Board nor mailed registered by the application date. Therefore, by virtue of section 8(4) of the Labour Relations Act, the petition is untimely, and will not considered further by the Board".
A number of employees also filed allegations concerning how the membership evidence had been collected by the union. The union submitted that the allegations pleaded, even if true and provable, did not constitute a prima facie (or arguable) case, and the union asked that the allegations accordingly be dismissed.
For purposes of dealing with this issue, the Board accepted as true and provable the facts as pleaded by the intervening employees. After hearing the submissions of the parties, the Board orally ruled as follows:
The Board is satisfied that there is no prima facie case with respect to any of the matters alleged by the intervening employees.
The Board takes as true and provable all the facts as pleaded by the employees. However, the employees cannot rely upon any other facts, other than those that have been pleaded, as it is incumbent upon parties to plead sufficient facts to establish an arguable, or prima facie, case. Thus, if it is not asserted that certain conduct occurred before the application date in this proceeding, then the Board will not conclude that certain conduct did occur prior to this date. This is particularly true in light of the specific direction from a previous panel of the Board that the intervening employees plead all the particulars (material facts upon which they intended to rely with respect to their allegations).
The Board does not propose to go over each specific fact individually.
The Board notes that all parties had before them a chronology of when the membership cards relied upon by the union had been signed. This chronology was cross-referenced by the Board to the actual cards to ensure its accuracy.
Turning first to the facts set out in paragraph I of the September 7,
1994 typed letter, it appears that these events occurred sometime shortly before late July, 1994. This is apparent given the further particulars with respect to the same events set out in paragraph 2 of the letter of September 15, 1994 from counsel for the intervening employees. No specific people are named, other than Mary McBride. Either Ms. McBride did not sign a card, or if she did, she did so prior to July. There is also very little detail of the allegations. Thus, even if Ms. McBride did sign a card, the impugned conduct could not have affected the signing of her card. The conduct occurred after she signed.
The material facts set out in paragraph 2 of the September 7 letter occurred after the application date, and therefore could not have affected the collection of the memberships.
With respect to the material facts in paragraph 3 of that letter, the individual involved either did not sign a card, or signed long before the events complained of. Again, given the timing of the events, and the detail of those alleged, the conduct in question was not sufficient to cast doubt upon the memberships relied upon by the union.
The material facts set out in paragraph 4 of the letter of September 7 deal with an individual's request that she be given her card back by the union. However, a union is not required to return to an employee a card that she has signed. There is no allegation that the employee in question did not sign, only that the union refused to return to her the card she had signed. These facts do not undermine the reliability of the cards.
The material facts set out in paragraph S of the letter of September 7 occurred too late in time to effect the reliability of any of the membership cards.
The material facts set in paragraphs 6, 7 and 8 of the letter of September 7, and in the hand- written note that was also forwarded to the Board, are not such that they would undermine or cast doubt upon any of the memberships filed by the union.
In summary, with respect to the contents of the September 7 letter, and the hand-written note, and all of the contents of the letter of September 15, 1994 (other than paragraph 1 to which we will refer below), there is either insufficient detail provided, or the material facts that are pleaded are not such as to cast doubt upon the memberships relied upon by the union. In many cases, this is because the events occurred after the cards had been signed, or alternatively, filed with the Board.
With respect to the remaining allegation, that contained in paragraph
1 of the letter of September 15, 1994, memberships were still being collected by the union at the time these events occurred. Even so, it is not clear why these events ought to lead the Board to doubt any of the memberships filed by the union.
In effect, the union told employees that if it was not certified, there would be lay-offs in the workplace and that one specific employee, Janice Armstrong, would be among the first to be laid-off.
Promises of this sort are part of an organizing campaign. Unions regularly tell employees why they ought to opt for union representation, including statements such as that made here. When a union makes these statements, it is not in the same position as an employer threatening lay-offs of its employees. An employer is able to implement such action. A union is not in a position to either threaten or intimidate employees when it tells employees, in order to encourage them to sign up for the union, that there may or will be lay-offs if there is no union representing them.
Apart from the fact that this may actually be true in a given situation, in the Board's view it is part and parcel of an organizing campaign, and is the sort of campaigning that employees are able to assess and evaluate. Employees are able, in the face of such assertions, to determine whether they wish to sign a membership card or an application for membership. Such statements by unions are not a reason to discount any memberships which they may have obtained.
For all these reasons, the allegations are dismissed for failing to disclose an arguable, or prima facie, case."
After the Board had ruled on the two matters set out above, the intervening employees asked that the Board exercise its discretion under section 8(3) of the Act to order a representation vote, notwithstanding that the union had filed membership support of over fifty-five percent of employees in the bargaining unit as of the application date.
The Board orally ruled that it would not direct such a representation vote in the circumstances. The scheme of acquiring rights under the Labour Relations Act is through the collection of and filing of membership cards (or applications for membership) in a union. While the Board may have a discretion to direct that a representation vote be held, it should exercise that discretion in a manner consistent with the intent and purpose of the Act, where the predominant scheme is to refer to and rely upon the filing of membership cards. Whatever the arguments in favour or a representation vote in every proceeding, in Ontario there need not be a representation vote in each case, but only in certain narrow circumstances.
Here, the Board concluded that there was no reason to direct a representation vote, given the level of membership support and the reliability of the memberships filed by the union. According, the Board ruled that it would not direct such a vote in the circumstances.
After this ruling, the applicant union withdrew its section 91 complaint.
There were no other issues in dispute between the parties.
The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board further finds that:
all employees of Lutheran Nursing Home (Owen Sound) in the City of Owen Sound, save and except supervisors, persons above the rank of supervisor, office, clerical and maintenance staff, persons employed in a cooperative education program and students employed during the school vacation period,
constitute a unit of employees of the responding party appropriate for collective bargaining. Clarity Note: For purposes of clarity, the parties are agreed that persons employed in cooperative education programs for terms not exceeding six months will be excluded and students employed during the summer vacation period will be limited to no more than two at any one time.
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 responding party in the bargaining unit on August 11, 1994, the certification application date, had applied to become members of the applicant on or before that date.
A certificate will issue to the applicant.