Darrell Hunter v. International Union of Operating Engineers, Local 793, 1998 CanLII 18281

Darrell Hunter v. International Union of Operating Engineers, Local 793

[1998] OLRB REP. NOVEMBER/DECEMBER 903

2873-92-G; 2379-93-G; 2425-96-U; 2426-96-G; 0213-97-FC; 0214-97-FC; 0458-98-R International Union of Operating Engineers, Local 793, Applicant v. Associated Contracting Inc., Responding Party; International Union of Operating Engineers, Local 793, Applicant v. Associated Paving Company Ltd. and/or Capobianco Manage­ment Limited and/or Associated Contracting Inc. and/or Rosalucia Landscaping Inc. and/or The Core Group Inc. and/or Capo Contracting Inc., Responding Parties; Labour­ers International Union of North America, Local 183; International Union of Operating Engineers, Local 793, Applicants v. Associated Paving Ltd., Capobianco Management Limited, Associated Contracting Inc., RosaLucia Landscaping Inc., The Core Group Inc., Capo Contracting Inc., Responding Parties; International Union of Operating Engineers, Local 793, Applicant v. Associated Paving Ltd., Capobianco Management Limited, Associated Contracting Inc., Rosalucia Landscaping Inc., The Core Group Inc., Capo Contracting Inc., Responding Parties; Labourers International Union of North America, Local 183, Applicant v. Associated Paving Ltd., Capobianco Manage­ment Limited, Associated Contracting Inc., Rosalucia Landscaping Inc., The Core Group Inc., Capo Contracting Inc., Responding Parties; International Union of Op­erating Engineers, Local 793, Applicant v. Associated Paving Ltd., Capobianco Man­agement Limited, Rosalucia Landscaping Inc., The Core Group Inc., Capo Contracting Inc., Responding Parties; Darrell Hunter, Applicant v. International Union of Operating Engineers, Local 793, Responding Party v. Associated Contracting Inc., Intervenor

BEFORE: Robert Herman, Alternate Chair.

APPEARANCES: Darrell Hunter appearing on his own behalf; S.B.D. Wahl and John Cordeiro for Labourers' Local 183; S.B.D. Wahl, A. Silveira and Ken Lew for Operating Engineers, Local 793; Walter Thornton and Tony Capobianco for Associated Contracting Inc. et al.

DECISION OF THE BOARD; November 24, 1998

1Although a number of applications have been listed together involving many of the same parties (as set out above in the style of cause), this decision involves only the application under section 63 of the Labour Relations Act, 1995, for a declaration terminating the bargaining rights of the responding union, the International Union of Operating Engineers, Local 793 (Board File No. 0458-98-R).

2At a hearing held on October 13, 1998, the responding union ("Local 793") asserted that the application to decertify was untimely, on several grounds, and that the application ought to be dismissed. In a "bottom line" decision dated October 28, 1998, the application was dismissed, with reasons to follow. The Board now provides those reasons.

3There were two grounds raised by Local 793. First, under the Rules applicable to construc­tion industry terminations (or certifications), if an application is filed with the Board by Canada Post Priority Courier, the date of filing the application is the date on which the application is sent (as verified by the Post Office). Local 793 asserted that the application was not filed during the open period under the collective agreement, as it was not "filed" until after the conclusion of the day on April 30, 1998, the last day of the open period. Although the application was filed through Priority Courier, Darrell Hunter, the termination applicant, did not give the application to Priority Courier until after 6:00 p.m. on April 30th, and accordingly, argued Local 793, the filing date should not be April 30th, but should be the following day when it would have actually been "sent" by Priority Courier. If the application date was May 1, 1998, it would be untimely. Second, the application was not delivered to the employer and the union within the two days required by the Board's Rules. The requirement to deliver is mandatory, the union submitted, and the application should be dismissed for failure to comply.

4At the beginning of the litigation of these issues, the facts were agreed to by all three parties, and it was further agreed that argument would be based on these facts. The collective agreement expired on April 30, 1998. On January 15, 1998, the union served notice to bargain on the employer, and on April 8, 1998, the union made a request for conciliation. On April 23, 1998, a conciliation officer was appointed by the Minister. On Thursday, April 30, 1998, the last day of the collective agreement, Mr. Hunter registered or filed the application with Canada Post for delivery by Priority Courier. He did so at approximately 6:00 p.m. on April 30, 1998. Canada Post stamped its Priority Courier envelope with both the date, "April 30, 1998", and the phrase "Mailed After Cut Off Time". The application was received by the Board, from Priority Courier, on Monday, May 4, 1998. That same day, May 4th, the applicant registered or filed the application with Canada Post for Priority Courier delivery to the union and to the employer. The union received the application by Priority Courier two days later, on Wednesday, May 6, 1998. There were no agreed facts as to why the application was delivered as it was, nor any facts suggesting a reason why it was not delivered within the two days required by the Rules, nor any facts suggesting that it was in any way impractical for the applicant to have done so.

5It is not disputed that the open period for bringing the termination application closed as of the end of the day on April 30, 1998. By that time, the collective agreement had expired, and a conciliation officer had been appointed. If there was not already at that point a timely termination application filed, any subsequently filed application would be untimely (see section 67(2) of the Act).

6Section 63(3) of the Act reads as follows:

63.(3) The applicant shall deliver a copy of the application to the employer and the trade union by such time as is required under the rules made by the Board and, if there is no rule, not later than the day on which the application is filed with the Board.

7At the time the instant application was filed, both the Board's general Rules and its Interim Certification and Termination Rules were applicable. The Interim Rules applicable to the matters here in issue read as follows:

43i. These Rules amend the Board's Rules of Procedure, which continue to apply, except to the extent that they conflict with these interim Rules. These Rules apply only to applications for certification and to applications for termination of bargaining rights filed on or after the day on which these Rules come into effect and Rules 43 to 56 do not apply to those applications.

43j. Where there is any conflict between these interim Rules and any other rules, these interim Rules apply.

43l. Material required to be delivered under these Rules must be delivered in one of the following ways:

(a) facsimile transmission;

(b) Priority Courier; or

(c) hand delivery.

43m. Where the Board considers that it is impractical for any reason to deliver an application in the construction industry within the time period set out in these Rules, the Board may make an order for substituted delivery or for such other order as may be appropriate.

43o. The date of filing is the date that a document is received by the Board. However, in the construction industry, if an application is sent by Priority Courier, the date of filing is the date on which the application is sent (as verified by the Post Office).

43p. Where these Rules refer to a period of time, that period of time does not include Saturdays, Sundays and holidays on which the Board's offices are closed.

43cc. In the construction industry, the applicant must deliver the following to the employer not later than two (2) days after filing its application with the Board:

(a) a copy of the application for termination of bargaining rights (but not the material described in paragraphs (a), (b) and (c) of Rule 43z);

(b) a copy of the form set by the Board for intervening in the application (new Form TA-69) together with schedule(s) of employees in the form set by the Board;

© a copy of Information Bulletin No. 2© — Vote Arrangements;

(d) a copy of the Board’s Interim Certification and Termination Rules;

and must also deliver the following to the union not later than two (2) days after filing its application with the Board:

(e) a copy of the application for termination of bargaining rights (but not the material described in paragraphs (a), (b) and (c) of Rule 43z);

(f) a copy of the form set by the Board for responding to the application (new Form TA-2 1);

(g) a copy of Information Bulletin No. 2© — Vote Arrangements;

(h) a copy of the Board’s Interim Certification and Termination Rules.

43gg. Except in respect of an application in the construction industry, the parties must verify in writing at the time of filing that they have delivered the application and response as required by these rules. In a construction industry application, the applicant must verify in writing that it has delivered the application as required by these Rules not later than two (2) days after filing its application.

8Also applicable were the following Rules:

1. In these Rules,

(h) "file" means file with the Board, and a "filing" is anything that is filed.

10. The date a document is delivered is the date that document is received by another party or its authorized representative.

11. An application or response may not be processed if it does not comply with these Rules.

12. The Board may relieve against the strict application of these Rules where it considers it advisable.

13. The Board may shorten or lengthen any time period set out in or under these Rules, as it considers advisable.

9As noted, the first ground raised by Local 793 was that the application was not filed on April 30, 1998, as it was given to, and accepted by, Canada Post Priority Courier after the close of regular business hours on that day, and was so stamped by Canada Post. Local 793 argued that the filing date is the date when Priority Courier actually sends the material to the Board, and not the day on which such material is filed with Priority Courier. Where the application accepted by Canada Post is stamped "Mailed After Cut Off Time", and when it was mailed after the regular business day, the application cannot be sent by Priority Courier as of that same day.

10The Board did not call on the other parties to respond to this argument. Pursuant to Rule 43o, in the construction industry the date of filing with the Board is the date on which the application is sent by Priority Courier. For purposes of affixing the application date under the Rules, the date an application is "sent" by Priority Courier is the date on which the application is accepted by Priority Courier, regardless of when Priority Courier actually delivers the application, and regardless of whether the application is received by Priority Courier after 5:00 p.m. on that particular day. As long as Canada Post Priority Courier accepts the application prior to midnight on a particular day, that same day is the date on which the application is "sent" by Priority Courier, for purposes of affixing the application date in a construction industry application for termination.

11Any other approach would defeat the purpose of the Rule, which allows the application date to be affixed by filing the application with Priority Courier. In the construction industry, both unions in certification applications and individual employees in termination applications must be able to know with certainty the application date for their particular application, since choosing the specific date has such singular importance. In both certification and termination applications, it is the wishes of employ­ees at work on the application date that are taken into account (see, for example, Crete Flooring, [1992] OLRB Rep. July 792). As well, in terminations, the application date determines whether the application is timely. To give Rule 43o the reading urged upon the Board by the union would leave parties uncertain as to when the application date might be, for parties would be unable to ascertain in advance when Priority Courier would actually "send" the application.

12Since the applicant had filed the application with Canada Post Priority Courier on April 30, 1998, the Board ruled orally that the application date was April 30, 1998.

13The union also asserted that the applicant had not "delivered" the application to it as required by section 63(3) of the Act and Rule 43cc. Although the application date was April 30, 1998, the application was not delivered to the union until May 6, 1998, four days later (not counting Saturday and Sunday, as per Rule 113p). The union submitted that the application must be "delivered" within 2 days of filing (Rule 43cc) and that delivery is only effective upon receipt, and not upon filing the application with Priority Courier (Rule 10, and see in contrast, Rule 43o dealing with the effective date of filing an application with the Board). Since the application was received on Wednesday, May 6, 1998 and not May 4, 1998, it was not delivered as required by Rule 43cc: "not later than two (2) days after filing lithe] application with the Board". Local 793 asserted that the requirement to deliver within two days of filing is mandatory, failing which the application must be dismissed as not being properly filed, or in the alternative, where an applicant is late in delivery of the application to the other parties, the application date should be fixed at a point in time two days prior to the actual date of delivery.

14This issue has not previously been dealt with by the Board. In Call-A-Cab Limited, [1997] OLRB Rep. Jan/Feb. 5, also an application for termination pursuant to section 63 of the Act (but not one arising in the construction industry), the Board wrote as follows:

5. At the hearing, counsel for the applicant was invited to provide an explanation for the failure by the applicant to comply with the Act and with the Board's Interim Certification and Termination Rules by delivering a copy of the application to terminate bargaining rights to the responding party and the intervenor employer prior to filing it with the Board. No explanation was provided other than inadvertence.

6. It was not disputed that, in order to be a timely application for termination, the application in this matter had to have been filed with the Board by January 7, 1996. It was in fact received by the Board on January 9, 1996, although the union argues that it was not properly filed as it had not yet been delivered to the other parties as required by the Act and the Rules. Leaving aside the issues concerning delivery, however, the application was not filed in a timely fashion unless we accept the applicant's argument that the application should be treated as having been filed on the date on which it was sent by registered mail.

7. Rule 43o of the Interim Certification and Termination Rules provides as follows:

43o The date of filing is the date that a document is received by the Board. However, in the construction industry, if an application is sent by Priority Courier, the date of filing is the date on which the application is sent (as verified by the Post Office).

11. The previous Rule dealing with the date of filing was Rule 8, which provides as follows:

12. 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.

13. This Rule was clearly superseded with respect to applications for certification and termination by the Interim Certification and Termination Rules promulgated on November 16, 1995. Rule 43i of the interim rules provides as follows:

43i These Rules amend the Board's Rules of Procedure, which continue to apply, except to the extent that they conflict with these interim Rules. These Rules apply only to applications for certification and to applications for termination of bargaining rights filed on or after the day on which these Rules come into effect and Rules 43 to 56 do not apply to those applications.

13. The rationale for Rule 43o is apparent from a reading of the other Rules relating to certification and termination applications, and from a reading of Bill 7, which brought into effect the Labour Relations Act, 1995. The Act, and the new rules which were put into place to implement the changes it contained, creates an entirely new regime for certification and termination applications, where representation rights are to be determined by the speedy holding of votes in virtually all cases. As a result, the interim rules reflect the need to quickly process certification and termination applications in order to meet in most cases the legislative mandate of fifth-day votes. As well, the legislation provides (in section 63(3) of the Act with respect to termination applications) for the delivery of applications to responding parties before filing with the Board, unless the Board establishes rules to relieve of this requirement (as the Board has done with respect to applications in the construction industry). In this context, the use of registered mail to deliver applications to the Board is quite simply unworkable, as is the assigning of application dates to any date other than the date material is received at the Board. If the latter were permitted, the Board would in many cases not even be aware of the existence of applications filed in this manner within five days after the date of filing, which is the date on which votes are to be held unless the Board directs otherwise.

14. Rule 43o also makes sense in light of the final sentence of the previous Rule 8, which already prohibited the fixing of application dates by registered mail filing in various types of time-sensitive matters. The effect of Rule 43o is essentially to add certification and termination applications in non-construction matters to this list of expedited proceedings.

15. The applicant asks that we relieve in these circumstances from the strict application of Rule 43o, but offers no reason for this request, other than the obvious fact that the application is untimely unless it is treated as having been filed on an earlier date. This is not a case where the applicant can reasonably plead ignorance of the changes in the Board's rules as an excuse for non-compliance. The applicant was represented in its filing by competent counsel who had an obligation to inform himself of the law and of any rules governing such applications to the Board. A review of Bill 7, which was proclaimed in effect on November 10, 1995, almost two months prior to the filing, would inevitably have led to the conclusion that the rules governing termination applications must have been changed, if only because of the wording of section 63(3). The Board's Interim Certifica­tion and Termination Rules were available at the Board's offices beginning on November 16, 1995, were mailed to those on the Board's mailing list that same day, and were announced in the November 1995 issue of Highlights. In these circumstances, there is little excuse for the manner in which the applicant commenced the application at the beginning of January 1996.

16. For all of these reasons, the majority of the panel concluded, Board Member Sloan reserving his decision, that it was not appropriate to treat the application as having been filed on January 3, 1996, the date on which is was sent by registered mail. As January 9, 1996 is the earliest date on which it can be considered to have been filed, in which case it would still be untimely, it is not necessary for us to determine whether or not the receipt of the application on that date was adequate to constitute filing, given the deficiencies in delivery to the other parties, and we thus decline to consider the other arguments made by the union.

15The Board in that case declined to rule upon the issue to be decided here - the consequences of failure to "deliver" the application to the other parties within the time required by the Act and the Rules. However, the comments made by the Board concerning the new scheme for certifications and terminations, and the quick votes required for such applications, remain apposite.

16The importance of moving expeditiously through the procedures in a termination application is made evident in the scheme described in section 63 of the Act. Section 63(3) explicitly addresses the requirement to deliver the application to the employer and to the union, and states that such delivery must be effectuated no later than the day on which the application is filed with the Board, unless the Board has made Rules otherwise. The statutory intention is clear. Delivery of the application is to be made by the applicant directly upon the employer and the union, and is to be done so quickly. The Legislature has also agreed, through section 63(3), to defer to the Board's rule-making powers with respect to allowing a time for delivery later than the date on which the application is filed. Such a deferral does not, however, minimize the legislatively expressed concern for expedition in delivery of the application. It would hardly be consistent with the statutory intention that delivery be prompt were the Board to make a rule requiring delivery, in a less than expeditious time. Although a discretion is given to the Board, it must be exercised with reference to the need for expedition expressed throughout section 63, of which section 63(3) is only one example. Subsection 63(8) precludes the Board from holding a hearing when making the determination under subsection 5 (as to whether the 40 percent of support required to direct a vote is present). Section 63(9) requires, unless the Board directs otherwise, that the representation vote be held within 5 days after the day on which the application is filed with the Board.

17It is in this context that the Board's Interim Certification and Termination Rules were made. With respect to delivery of the application to the employer and to the union, Rule 43cc requires delivery within two days of filing the application. Another Rule, Rule 22, gives the Board the ability to relieve against the strict application of Rule 43cc. Rule 27 allows the Board to shorten or lengthen any time period as set out in the Rules.

18Local 793 argued that the Board has no jurisdiction to extend or waive the two day delivery requirement in Rule 43cc, in light of the wording of section 63(3). It submitted that it is only a rule specifically dealing with delivery (Rule 43cc) which qualifies as a rule as referred to in section 63(3). The union asserted that a general rule giving the Board discretion to relieve from the application of other rules cannot stand in the face of the language of section 63(3), as it could not have been intended that the Board could set a time for delivery on a case by case basis. The union submitted that section 63(3) only authorizes a rule or rules dealing specifically with delivery of the application.

19However, I am satisfied that the Board can exercise a discretion under Rules 22 or 27, and when it does so, it is acting in a manner authorized by and consistent with the provisions of subsection 63(3). This subsection allows the Board to determine when delivery "is required under the Rules made by the Board". The reference is to the "Rules" of the Board, and this refers to the Rules in their entirety, not only the rule that deals particularly with delivery times. Section 63(3) reflects a legislative recognition of the Board's expertise in determining appropriate delivery times for the application and a willingness to defer to that expertise as long as there are rules delineating delivery times. The expression of the Board's expertise in this respect is manifested not only through the provisions of Rule 43cc, but as well with reference to the Rules which allow the Board to make exceptions, to consider whether to relieve from the requirements of Rule 43cc (or any other Rule) in appropriate circumstances. Of course, when considering whether there is good reason to grant such relief, the Board will have a continuing regard for the need for expedition in termination applications, a need legislatively acknowledged in the numerous provisions of section 63 referred to earlier.

20The question is whether the applicant has demonstrated appropriate circumstances here for relieving against the requirement in Rule 43cc to deliver the application within two days.

21There could be a number of circumstances which would justify an exercise of the Board's discretion to extend the time or relieve from the delivery requirement. Perhaps if an applicant were to be misled by a responding union with respect to delivery requirements. Perhaps if an unexpected circumstance beyond the applicant's control occurred, preventing delivery that otherwise would have been timely. Whether the Board extends the time will depend upon all the circumstances, including the reasons for the failure to deliver, the length of the delay in delivery, and prejudice to the other parties.

22The applicant did make oral submissions (after both the union and employer had finished their submissions) asserting that he had not understood the Rules, and had not appreciated that an application sent by Priority Courier for delivery to the other parties was treated as delivered only upon receipt. However, this explanation was not reflected in the agreed facts, which formed the factual basis for the submissions, and the facts provided no explanation for the late delivery.

23Even if the Board were to accept that the reason for the delay in delivery was that the applicant had misunderstood the Rules, the Board is not satisfied that such a mistake provides sufficient reason to extend the time. It is difficult to see how the two day delivery requirement in Rule 43cc would continue to have any meaning if an expressed misunderstanding of the relevant Rules would alone be enough to lead the Board to relieve from their requirements. The timing requirement for delivery of a termination application is a matter spoken to directly in the Act. The need for expedition is important enough that it has explicit statutory treatment.

24Whether because no reason has been given for the failure to deliver in time, or because the only reason given was a misreading of the Rules, the Board declined to relieve from the requirements of Rule 43cc. Delivery of the application to the union was not therefore made within the time required under the Rules. That requirement is mandatory (absent the Board granting relief from it). An application is only properly made when it is filed and delivered. The consequence of failure to deliver in a timely manner is therefore that an application is not properly made. As the application was not made within the time prescribed by the Act, it was dismissed.