2226-99-R International Union of Bricklayers and Allied Craft Union of Canada, Local 23 (now known as Brick and Allied Craft Union of Canada, Local 23), Applicant v. Professional Masonry Service, Responding Party.

BEFORE: David A. McKee, Vice-Chair.

APPEARANCES: David Watson, Fiorenzo DeConti and Mario Dos Santos for the applicant; Joe Morrison, J. C. Wilhelm and Barb Willer for the responding party.

DECISION OF THE BOARD; February 22, 2000

1This is an application for certification under the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995 ch. 1 (“the Act”). The style of cause reflects the name of the applicant as set out in the application rather than any finding of status by the Board. This decision deals with the first of three issues in this application, namely whether the applicant delivered to the responding party the application for certification and other documents required by Rule 128 (“the Application”) within the time prescribed by the statute and the Board’s Rules.

2This is a case which turns on its own, probably unique, facts. In all, six witnesses were called and subject to sometimes intense cross-examination. I have made the following findings of fact based on my assessment of the demeanor of the witnesses, the objective likelihood of their testimony, their ability to remember the events to which they testified and their ability to resist the influence of self-interest.

Facts

3Professional Masonry Service is a sole proprietorship carried on by Mr. J. C. Wilhelm. The business is involved in brick and masonry construction.

4Mr. Wilhelm operates the business out of his house. He has no separate office and no office employees. The office arrangement within his house is relatively simple. For example, he owns a fax machine which sits on a night-table beside his bed. Mr. Wilhelm works with the tools, alongside his employees and is therefore generally at a construction site during the day.

5The applicant determined to file an application for certification in late October of 1999. Two organizers of the applicant, Fiorenzo DeConti and Mario Dos Santos, attended at the offices of their counsel on November 3 to prepare the Application. They and counsel were unable to obtain a facsimile telephone number for the responding party (it is advertised nowhere other than on its estimate sheets submitted to general contractors). There is no registration of Professional Masonry Service under the Business Names Act, R.S.O. 1990, ch. B-17. The address used in the Application for certification was that which appears in the Yellow Pages of the local telephone directory.

6The Application was prepared on November 3, but was not filed on that day. On November 4 the two organizers attended at the job site where Professional Masonry Service was performing work. They observed certain employees and Mr. Wilhelm working on this site laying block.

7The organizers advised their counsel to file their Application with the Board. They then drove to the address of the responding party, namely Mr. Wilhelm’s house. They placed the envelope containing the Application in the mailbox. The mail box is that venerable rural institution – a box affixed to the top of a post standing at the edge of a field across the road from the Wilhelm’s house. This is the mailbox through which the responding party, and the Wilhelm family, receive all of their mail, including some business documents and cheques. There is no lock on the box.

8As it happened, early on November 4 no one was at home at the Wilhelm residence. Mr. Wilhelm’s two small children had slept overnight at their grandmother’s house. His spouse went out early in the morning to pick them up.

9The two organizers placed the Application in the mailbox and closed the front door of the mailbox. Unfortunately, they also lifted the flag on the side of the mailbox.

10Lifting the flag on this particular route is a signal that there is mail to be picked up. The letter carrier from Canada Post is thereby signaled to pick up mail for delivery. The letter carrier, who is a contractor to Canada Post, not an employee, does not deliver or sort that mail, but simply collects it from mail boxes and places it in a bag which she delivers to a location from which it is shipped to a sorting station in London, Ontario. The responding party accepts that the organizers did not intend to convey this message to the letter carrier, but probably simply to signal to Mr. Wilhelm that there was an envelope for him in the box.

11Around noon, the route letter carrier noticed the upright flag. She stopped and removed the Application and put it in the bag for delivery to the sorting station in London. She did not notice the absence of postage, nor did she read the address.

12The Application was therefore not in the box the next time it was checked by Mr. Wilhelm or a member of his family. He did not receive the Application. On November 9 a Board Officer called Mr. Wilhelm about the fact that he had not filed a response. He stated this was the first that he had heard of an application for certification.

He faxed a letter to the Board on that date asking for information, but did not send a copy to the applicant. He may not have had the necessary information from the Board Officer to enable him to do so.

13On November 10, 1999 a panel of the Board (differently constituted) issued a decision directing that a vote be held. On November 11, (a date the Board’s offices were closed) Mr. Wilhelm wrote to the Board asking questions and asserting that he had not received the Application. This was faxed to the Board at 5:44 a.m. on November 11. Later that day he attended at the office of his counsel. His counsel called counsel for the applicant, who promptly faxed a copy of the Application to him. A response was filed by fax the same day, and was therefore filed with the Board on Friday, November 12.

14The vote was held on Monday, November 15. In its response, the responding party lists eight employees. The applicant said there were four employees in the bargaining unit. The dispute centers on four persons the responding party describes as “bricklayers’ apprentices”. A Notice of Vote was delivered to the responding party by fax on November 10, 1999. It was posted on Friday November 12, 1999 at 7:40 a.m. All eight employees voted on Monday November 15 between 8:00 a.m. and 9:00 a.m. The box remains sealed.

15Only one evidentiary matter needs to be commented on. The applicant called a witness who advised that in her experience, the policy of Canada Post is to return mail which lacked sufficient postage to the sender, with a sticker indicating the amount of postage that was necessary. Counsel called a witness from his office to give evidence that the letter had not been returned to his office. Counsel asked that the Board draw the conclusion that in fact the Application had never been returned to the mail system and that the letter carrier who testified was thinking of another piece of mail (a possibility she admitted).

16I find that the letter carrier did in fact pick up the Application. The fact that it has not been returned to counsel for the applicant does not, in my view, contradict the evidence of the letter carrier, whom I found to be forthright and entirely believable. The applicant’s witness was a wicket clerk from the Downsview Post Office. She too was a knowledgeable and truthful witness, but given the nature of her position, unable to give any evidence with respect to Canada Post’s operations in Sarnia or London. For example, she believed that there was a sorting station in Sarnia. In any event, it is not beyond the realm of belief that Canada Post treats mail with absolutely no postage on it with something less than high priority.

The Issues

17The responding party asserts that the Application was not delivered to the responding party within the time prescribed by the Rules and that the Application should therefore be dismissed. The applicant argues that it was delivered, or in the alternative, if the Board finds that it was not delivered, the Board should exercise its discretion under Rule 22 to extend the date for delivery to the responding party to November 11, 1999.

18The relevant provision from the statute is subsection 7(11) which provides:

7. (11) The trade union shall deliver a copy of the application for certification to the employer 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.

19The relevant rules are:

127. Rules 20 and 21 do not apply to applications for certification in the construction industry or to applications to terminate construction industry bargaining rights under sections 63, 127.2 or 132 of the Act.

128. Applications and all other material required to be delivered under Part VI of these Rules must be delivered in one of the following ways:

(a) facsimile transmission;

(b) Priority Courier;

(c) hand delivery; or

(d) any other way agreed upon by the parties.

133. The applicant must deliver the following to the responding party not later than two (2) days after filing the 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 131);

(b) a blank copy of the form set by the Board for responding to the application (Form A‑72), including Schedule A (List of Employees);

(c) a completed copy of the Notice to Employer of Application for Certification, Construction Industry (Form C‑32);

(d) a copy of Information Bulletin No. 6 -- Certification of Trade Unions in the Construction Industry;

(e) a copy of Information Bulletin No. 8 -- Vote Arrangements in the Construction Industry;

(f) a copy of Information Bulletin No. 9 -- Status Disputes in Certification Applications in the Construction Industry; and

(g) a copy of Part VI of the Board's Rules of Procedure.

22. Where the Board considers that it is impractical for any reason to deliver an application 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.

23. The date a document is delivered is the date that document is received by another party or its authorized representative. However, a document delivered after 5:00 p.m. will be deemed to be delivered on the next day and a document delivered by regular mail will be deemed to be delivered on the fifth day after the document was mailed.

Decision

20The first issue is whether the Application was in fact delivered by the applicant to the responding party. Rule 128 provides that the applicant has three choices, absent the agreement of the responding party. Prima facie, there is no reason to question why the applicant chose one of the three methods open to it unless it is apparent that one method will likely not bring the Application to the attention of the responding party. There are, after all, some risks involved in all three methods of delivery. Accordingly, it does not matter whether the applicant could have done more to obtain the responding party’s fax number (on the evidence I find it took reasonable steps). The applicant was entitled to make the choice it made and need not justify its reasons for not pursuing any of the alternatives.

21The responding party argued that the act of delivery was synonymous with receipt by or service on an authorized agent or the principal of the responding party and that leaving it in a mailbox is insufficient. He relied on Canadian Paperworkers Union, Local 1199, [1992], OLRD No. 254 (January 22, 1992) for the proposition that the Board has stated that delivery and filing are acts to be accomplished in keeping with the “traditional” methods of filing and service, except as specifically modified by the Board’s Rules.

22The Board disagrees. The responding party is an employer that carries on business in the construction industry. It is for the employees of that business which the applicant seeks to be certified as bargaining agent. The Act describes ‘employers’, in respect of whose employees bargaining rights are sought, more broadly than the categories of legal entities which may appear as parties in a civil proceeding. For example, subsection 1(4) refers to an employer which may be a corporation, individual, firm, syndicate or association or any combination thereof. The Act is concerned with the economic vehicle which constitutes a business which employs employees rather than the legal form of that business. It is to that business, in whatever manner or through whatever form, it carries on its activities, that the Application must be delivered.

23In any event, the Rule requires delivery to the responding party, i.e. the business. It does not require service on any person. The union delivered it to the only advertised address where that business is carried on. The organizers used the same physical apparatus that the business employed to receive mail from Canada Post, which included business documents such as cheques in payment for completed contracts. It is also the same physical apparatus that Canada Post would have employed had the applicant delivered the Application by Priority Courier, another option contemplated under the Rules. There was no evidence called with respect to the nature of Mr. Wilhelm’s house – whether there was a set of double doors between which the Application could have been left or some other secure place for delivery. The mailbox was the one customary location which business documents, including cheques, were sent by customers of the responding party. If there is any lack of security in the mailbox, that is a risk which the responding party has accepted in the way it receives mail in the ordinary course of its business. This risk falls on the responding party: Norben Interior Design Limited, [1984] OLRB Rep. June 851 at paragraph 7 and Forano Construction Ltd., [1985] OLRB Rep. Jan. 73.

24There is a real difficulty created by the raising of the mailbox flag by the organizers. There is no suggestion of deliberate impropriety. Indeed, there could be no suggestion of delay or subterfuge since delivery to the mail box on November 4 meant that it was delivered two days earlier than strictly required under the Rules and, in fact, prior to its physical delivery to the Board. Nonetheless, the actions of the organizers caused the Application to be removed from the box and placed into the mail delivery system. Thus, the applicant did not receive the Application until it was faxed to his counsel on November 11. There is no valid criticism to be made of the letter carrier. The flag indicates that mail is to be picked up. It is her duty as a contractor to Canada Post to pick it up. It is not her job to ensure that the postage has been properly affixed, in the right amount or at all, or to review the address. From the photographs of the mailbox and the Application submitted by the applicant, the Application looks like an ordinary piece of mail to be picked up. However, in the Board’s view, the potential for miscommunication to occur arising from the position of the moving parts of the mailbox is, like the lack of security of an unlocked mailbox, part of the risk the responding party assumes in using that mode of communication for its business. In the circumstances of this case, the act of leaving the Application in the mailbox of the responding party was delivery for the purposes of the Rules.

25The fact that there has been delivery of the Application does not answer the problem created by the removal of the Application from the responding party’s mailbox. First, the Board must be concerned with the integrity of its own process. Had the two organizers deliberately placed the flag to ensure that it would be removed from the mail box, the Board would likely be inclined to dismiss the application as an abuse of process. There is no suggestion in this case that they did so.

26In any application, the Board is always concerned to ensure that there is adequate notice to all employees potentially affected by the application, and that the procedural fairness envisioned by the statute and the Rules is available in a meaningful way to the responding party. The Board has a discretion in the manner in which an application for certification is processed. Where a vote is conducted in circumstances where it does not disclose the true wishes of employees, section 111(5) gives the Board the authority to hold a second vote. If the responding party has been prejudiced in any significant way, Rule 44 permits the Board to relieve against the strict application of the Rules.

27In this case all potentially affected employees received adequate notice of the vote. The Board’s Notice to employees was posted on November 12 at 7:40 a.m. It had been faxed to the responding party after 5:00p.m. on November 10, and should therefore have been posted November 11, since that was a working day for the responding party. This failure to post was also clearly an innocent error, this time on the part of the responding party. The Board is satisfied that the information contained in the Board’s notice was available to employees within a meaningful period of time before the vote.

28The Board also finds that the responding party suffered no significant prejudice. In fairness, the responding party did not itself raise any issue of prejudice until asked to address the issue by the Board. The responding party was able to file a response which has been accepted by the Board. If necessary, the date for filing the Response is hereby extended to November 12, 2000. In this response it identified all additional employees that it said should be on the list. All employees got notice of the vote. All of them voted.

29The only prejudice that the responding party could point to was that it had only one to two days rather than the four days contemplated by the statute to discuss the Application with its employees and to conduct a campaign in favour of its position among them (within the proper limits of employer conduct). Given that this is a very small unit of employees, all of whom work directly with Mr. Wilhelm on the job, this prejudice is not significant. The responding party could have asked for a postponement of the date of the vote. In the circumstances, it appears that he would likely have received it. Therefore, aside from accepting the Response on the date filed, no further action is required or appropriate to deal with any prejudice to the responding party.

30Counsel for the responding party stated that rather than ask for an extension, the responding party relied on statements in the decision directing the vote which state:

“If the application was delivered to the responding party as the applicant asserts, then the responding party has failed to file its response with the Board within the time stipulated by Rule 135 of the Board’s Rules of Procedure. If, on the other hand, the application was not delivered to the responding party as the responding party asserts, then this application must be dismissed (see Associated Contracting Inc., [1998] OLRB Rep. Nov./Dec. 903). Whether delivery of the application was made is, however, a factual matter that may be determined following the taking of the representation vote”.

31This decision of the Board was made only on the basis of the Application and Mr. Wilhelm’s November 9 letter, which is not in itself a proper response. The issue for the Board to determine at that time was whether or not to hold a vote. The decision can hardly be read as one making a final decision on all of the facts of the case, which were not then before the Board. In fact, the Board has found that the Application was delivered within the time prescribed by the rules. In the final analysis, the appropriate action on the part of the Board, given the events which occurred, is to extend the time for the filing of the response.

32In the circumstances, the Board finds that the Application was delivered to the responding party in accordance with the Act and the Rules and that no further action needs to be taken with respect to the conduct of the vote. Accordingly, the hearing will proceed to deal with the issues of the list and the application, if any, of section 8.1. On agreement of the parties, the date of February 29, 2000, originally scheduled for the continuation of this matter is adjourned. The hearing will now be held on April 3 and 4, 2000.

“David A. McKee”

for the Board