3219-99-R International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local 128, Applicant v. N.G.P. Steel Inc., Responding Party.
BEFORE: Harry Freedman, Vice‑Chair, and Board Members G. Pickell and G. McMenemy.
DECISION OF THE BOARD; February 7, 2000
This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995, c.1 as amended (the “Act”). This application was filed on February 1, 2000.
The Board finds that the applicant is a trade union within the meaning of sections 1(1) and 126 of the Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 153(1) of the Act on January 30, 1978, the designated employee bargaining agency is the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers.
The responding party, although duly served with the application material on February 1, 2000, according to the Certificate of Delivery filed by the applicant, failed to file its response with the Board within the time stipulated by Rule 135 of the Board's Rules of Procedure.
Counsel for the applicant filed the application form (Form A-71) by having it delivered to the Board on February 1, 2000. Counsel, in a covering letter with the application, advised that the balance of the documents that must be included with an application for certification, as required by Rule 131 of the Board’s Rules of Procedure, that is, membership evidence, a list of employees and a declaration verifying the membership evidence (Form A-74) were being forwarded to the Board by Priority Courier under separate cover. Those documents were given to Priority Courier on February 1, 2000 and were received by the Board on February 2.
Applications for certification in relation to the construction industry are governed by Part VI of the Board’s Rules of Procedure. Rule 131 provides:
“An application for certification as bargaining agent must also include:
(a) any membership evidence relating to the application;
(b) a list of employees, in alphabetical order, corresponding with the membership evidence filed; and
(c) a declaration verifying the membership evidence (Form A-74).”
Thus, it is clear that an application for certification is comprised of the application form itself together with the documents described in Rule 131. Rule 129 deals with the filing of documents with the Board in proceedings under Part VI of the Rules. Rule 129 provides:
“The date of filing is the date that a document is received by the Board. However, 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).”
In this case, the applicant filed its membership evidence, list of employees and declaration by having those documents delivered by Priority Courier to the Board. Those documents were given to Priority Courier on February 1, 2000 and were therefore sent on that day. See Associated Contracting Limited, [1998] OLRB Rep. Nov./Dec. 903 in which the Board wrote at page 906:
“… 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, …”
We are of the view that those documents are an integral part of an application for certification and we therefore accept that those documents were filed with the Board on February 1, 2000, as that was the date they were sent by Priority Courier, in accordance with Rule 129.
The documents required by Rule 131 were not in the same envelope as the application in Form A-71. Indeed, they physically arrived at the Board on different days but by reason of Rule 129 had been filed with the Board on the same day. In our opinion, in order for an application to “include” material, the application and the material must all be filed with the Board on the same day. The date of application is the unit of time the Board uses in dealing with applications for certification. The Board does not subdivide that unit of time any further. See Harnden & King Construction Ltd., [1987] OLRB Rep. Dec. 1510 at 1512; Laurent Lamoureux Co. Ltd., [1985] OLRB Rep. Nov. 1618 at 1623; Associated Contracting Inc., supra. If all of the material required for an application under Part VI of the Board’s Rules is filed with the Board on the same day, then, in our opinion, that material is “included” with the application for purposes of Rule 131 of the Board’s Rules of Procedure. It does not matter that the material physically arrived at the Board in separate envelopes, or at different times on the same day, or on different days, so long as all of the material was filed with the Board (pursuant to Rule 129) on the same date.
It appears to the Board on an examination of only the information provided in the application and the information and membership evidence filed by the applicant (see section 8(3) of the Act), that not less than forty per cent of the individuals in the bargaining unit proposed in the application for certification were members of the union at the time the application was made.
The Board finds that this is an application for certification within the meaning of section 128 of the Act and is an application made pursuant to section 158(1) of the Act which provides that:
An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in the definition of "sector" in section 126 shall be brought by either,
(a) an employee bargaining agency; or
(b) one or more affiliated bargaining
agents of the employee bargaining agency,
on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic