3735-99-R National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada), Applicant v. Ontario Jockey Club, Responding Party v. Service Employees International Union Local 528, Intervenor.

BEFORE: Timothy W. Sargeant, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.

APPEARANCES: Anthony F. Dale and Paul Forder for the applicant; Brian O’Byrne and Gary Reynew for the responding party; Melissa J. Kronick for the intervenor.

DECISION OF THE BOARD; May 25, 2000

1. This is a displacement application for certification.

2. In a decision of the Board dated March 23, 2000 a vote was ordered to be held on March 29, 2000. In accordance with that decision the ballot box was sealed.

3. Paragraph 11 of the Board decision dated March 23, 2000 held:

11. The responding party and intervenor raise the issue of the timeliness of the application based on an assertion that a conciliation officer had been appointed prior to the bringing of the application. By decision dated March 21, 2000 the Board directed the parties to file submissions regarding the timeliness issue. Having regard to those submissions and in all of the circumstances of this case, the matter is referred to the Registrar to be scheduled for hearing in order to provide the parties with the opportunity to present their positions on this issue.

In accordance with paragraph 11 a hearing was scheduled by the Registrar to take place on May 3, 2000.

4. The facts surrounding the issue in dispute are not really in dispute. The Board heard from one witness, Mr. Paul Forder, (“Forder”) National Director, Organizing Department for the applicant.

5. The application for certification was hand delivered to the Board on March 16, 2000 and date stamped by the Board at 4:48 p.m. There is no issue that a facsimile was sent and received by The Ontario Jockey Club sometime after 4:00 p.m. on March 16, 2000

6. In respect of the intervenor, although the applicant attempted to deliver a copy of the application to the intervenor by facsimile between 4:00 p.m. and 5:00 p.m. such facsimile did not transmit. This was not discovered until the next morning by Mr. Forder, who arranged for the application to be sent to the intervenor sometime between 9:45 a.m. and 10:00 a.m. March 17, 2000. The intervenor admits this facsimile was received. In the original Certificate of Delivery it was stated that delivery to the intervenor was made by facsimile on Thursday March 16, 2000. This certificate was amended on March 17, 2000 to reflect that delivery was actually made to the intervenor by facsimile on March 17, 2000.

7. An appointment of a conciliation officer was made on March 16, 2000.

8. Based on these facts the intervenor and the responding party submit that in accordance with the Board’s Rules this application should be dismissed. In the alternative these parties argue that since service to the intervenor was not completed until March 17, 2000, the application is untimely pursuant to section 67(2) of the Act because of the appointment of a conciliation officer on March 16, 2000.

9. The applicant of course takes the position that this application is effective as of March 16, 2000 and in these circumstances the Board should relieve, as it is empowered to do pursuant to the Rules, against any irregularities concerning service of the application to the intervenor. In the applicant’s view there was no prejudice shown, and thus the Board should relieve against, what is at best, a technical irregularity. The applicant therefore submits that its application is timely and the submissions of the responding party and the intervenor should be dismissed.

10. The parties made detailed submissions concerning their respective positions.

DECISION

11. Having heard and carefully considered the submissions the Board finds that this application should be dismissed as being untimely.

12. Given this decision it is not necessary to rule on the arguments concerning the Certificate of Delivery. However, the Board would comment that it does not find any attempt by the applicant to deliberately mislead the parties or the Board.

13. In making this decision the Board paid particular attention to Rule 25 and Rule 68. These rules state:

25. Before, or at the same time as, filing the application with the Board, the applicant must deliver to the responding party (and to any affected party identified in the application):

(a) a completed copy of the application;

(b) any additional material or documents specified in Parts III to VII of the Rules that relate to the particular application being filed;

(c) a blank copy of the form set by the Board for responding to the application;

(d) the appropriate Notice to Responding Party and/or Affected Party set by the Board in respect of the application; and

(e) the appropriate Information Bulletin, if any.

68. If the applicant has identified an affected trade union in its application, the applicant must deliver the following to the affected trade union before or at the same time as filing its application with the Board:

(a) a completed copy of the application (but not including the material described in paragraphs (a), (b), and (c) of Rule 65);

(b) a blank copy of the form set by the Board for intervening in the application (Form A‑3);

(c) a copy of Information Bulletin No. 1 -- Certification of Trade Unions;

(d) a copy of Information Bulletin No. 3 -- Vote Arrangements;

(e) a copy of Information Bulletin No. 4 -- Status Disputes in Certification Applications; and

(f) a copy of Part III of the Board's Rules of Procedure.

Also relevant is Rule 12 which states:

12. Except for applications covered by Part VI of these Rules, the date of filing is the date a document is received by the Board at its office.

14. The Board agrees with counsel for the applicant that the Board under the Rules may “shorten or lengthen any time period set out in or under these Rules, as it considers advisable” (see Rule 48); “may allow a filing to be amended as the Board considers advisable” (see Rule 47) and “may relieve against the strict application of these Rules where it considers it advisable” (see Rule 44).

15. The possible consequence of the failure to serve the intervenor in the manner required by Rule 25 and Rule 68 might, in accordance with Rule 39, result in the application not being processed.

16. In this instance based on the circumstances of this case the Board would be prepared to extend the time limit for delivery to the intervenor, and therefore would not as requested by the responding party and the intervenor dismiss the application solely on the basis that the applicant had not delivered the application to the intervenor until March 17, 2000.

17. However, in the Board’s view there are other considerations in this matter. Clearly the Rules contemplate as part of the process that the applicant serve the responding party and any affected party (the intervenor in this instance) “before or at the same time as filing the proper application with the Board”. This is a mandatory provision unless relief is granted. The applicant has control of when an application is to be filed. Mr. Forder testified it was the practice of the applicant to serve the other parties around 4:00 p.m. on the filing date so that the other parties would not have “a leg up”. The applicant, pursuant to the Rules (unlike previously when the Board delivered the application for certification to the responding party and affected party) is obligated to now deliver the application for certification to the responding party and affected party in the manner set by the Board. In this instance given the activity of the numerous applications for certification filed by the applicant affecting the intervenor, it is not surprising that the applicant was unable to transmit the application to the intervenor by facsimile. The applicant took that risk. It had the option of delivering the application earlier in the day or delivering the application by courier or delivering the application by hand. For whatever reason it chose not to do so, and thus it ran the risk that might result from a failure to deliver the application in accordance with the Rules. While the Board is satisfied that the applicant attempted to comply with the Rules, the evidence is clear that the applicant did not comply with the delivery requirements of Rules 25 and 68. Further Mr. Forder candidly admitted that he was familiar with the Rules and aware of his obligation to serve the intervenor before or at the same time as filing the application with the Board.

18. What then is the result of this failure? While the Board has discretion to extend the time for delivery under the Rules, in the Board’s view it cannot deem delivery to have been made on a date prior to the date of actual delivery. Thus in this instance though the Board would allow an extension for delivery of the application to the intervenor to March 17, 2000, the Board is not prepared to find that such delivery was effective as of March 16, 2000. This finding is consistent with the recent oral ruling of the Board in St. Joseph’s Health Centre dated May 2, 2000 and cited to this panel. The circumstances before the St. Joseph’s Health Care Centre panel are clearly distinguishable. In the St. Joseph’s Health Care Centre case the delivery in question was not made to the respondent by the applicant until after 5:00 p.m. on March 14, 2000 the filing date of the applications for certification. However, it is to be noted that the applications were actually delivered to the respondent on March 14, 2000 though after 5:00 p.m. On this issue the Board exercised its discretion to allow delivery of the application on March 14, 2000 after 5:00 p.m. to be effective as of March 14, 2000. The Board in the St. Joseph’s Health Care Centre decision therefore exercised “its discretion to permit the applications to be filed and delivered on March 14, 2000. The Board specifically relieves against the strict application of the Rules in this regard”. As pointed out above, in the matter before this panel, actual delivery of the application to the intervenor was not made until March 17, 2000, a day after the date of filing the application for certification with the Board.

19. Section 67(2) of the Act states:

67. (2) Where notice has been given under section 59 and the Minister has appointed a conciliation officer or a mediator, no application for certification of a bargaining agent of any of the employees in the bargaining units as defined in the collective agreement and no application for a declaration that the trade union that was a party to the collective agreement no longer represents the employees in the bargaining unit as defined in the agreement shall be made after the date when the agreement ceased to operated or the date when the Minister appointed a conciliation officer or a mediator, whichever is later, unless following the appointment of a conciliation officer or a mediator, if no collective agreement has been made,

(a) at least 12 months have elapsed from the date of the appointment of the conciliation officer or a mediator;

(b) a conciliation board or a mediator has been appointed and 30 days have elapsed after the report of the conciliation board or the mediator has been released by the Minister to the parties; or

(c) 30 days have elapsed after the Minister has informed the parties that he or she does not consider it desirable to appoint a conciliation board,

whichever is later.

20. In part section 67(2) provides that no application for certification “shall be made after the date when … the Minister appointed a conciliation officer”.

21. When then is this application made? The Rules provide that the “date of filing” is the date a document is received by the Board. The Board agrees with counsel for the applicant that the date of filing the application is March 16, 2000. However, in the Board’s view an application is not made until all the requirements, of Rule 25 have been completed, including proper delivery.

22. The Board had an opportunity to visit a similar issue in the decision of Associated Contracting Inc. [1998] OLRB Rep. November/December 903. While this case involved an application to decertify in the construction industry the Board did consider the effects of not delivering a document in accordance with section 63(3) of the Act and what was then Rule 43cc.

23. At the time of the Associated Contracting Inc. decision, Rule 43cc. stated:

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:

(c) a copy of Information Bulletin No. 2(C) – 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-21);

(g) a copy of Information Bulletin No. 2(C) – Vote Arrangements;

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

24. The Board recognizes that the statutory language requires that delivery of the application in the Associated Contracting Inc. decision was to be made by the applicant directly upon the union and the trade union. While there is statutory language requiring the delivery of a certification application upon the employer (section 7(11) of the Act, there is no specific statutory obligation to deliver such application to an affected party. However, the Board is authorized under the Act to make rules to govern its practice and procedure. The rules in this regard, as set out before, require delivery of an application to be made to an affected party before or at the same time as filing the application with the Board. As the Board stated in Associated Contracting Inc. at paragraph 24:

…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.

25. In the Board’s view the requirements in Rule 25 and 68 are mandatory. While the Board is prepared to relieve and extend the time for delivery of the application to the intervenor to March 17, 2000, the Board is of the view that this application is not made until it is filed and delivered. As the Board stated in the Association Contracting Inc. decision “the consequence of failure to deliver in a timely manner is therefore that an application is not properly made”. Though the Board may extend the time for delivery, the consequence of the applicant’s action is not complying with Rule 25 and 68 is that the application was not properly made until March 17, 2000.

26. Therefore pursuant to section 67(2) this application is untimely as an appointment of a conciliation officer was made on March 16, 2000.

27. The application is therefore dismissed. As the matter is dismissed because it is untimely pursuant to section 67(2), a bar will not be imposed in these circumstances

“Timothy W. Sargeant”

for the Board