United Steelworkers of America v. Baron Metal Industries Inc., 1999 CanLII 19988

[1999] OLRB REP. MAY/JUNE 363

2607-98-R; 2687-98-R; 3150-98-U United Steelworkers of America, Applicant v. Baron Metal Industries Inc., Responding Party

Certification - Charges - Representation Vote - Timeliness - Unfair Labour Practice -Prior to representation vote, union writing to Board to advise it that it was investigating allega­tions of intimidation of employees and that it intended to file unfair labour practice complaint -Union not filing detailed statement of representations within five days of vote as required by notice posted in workplace and under Rules of Procedure, but union filing unfair labour practice complaint fourteen days later - Employer asking Board to reject union's complaint as untimely -Board considering explanation provided by union for late filing and assessing parties' relative prejudice and concluding that union's unfair labour practice complaint should be considered by Board - Employer asking Board to exercise its discretion under section 7(9) of the Act to bar certification application where union had withdrawn earlier application after having received employer's response, including employee list - Board not finding it appropriate to impose bar

BEFORE: Christopher J. Albertyn, Vice-Chair.

APPEARANCES: Mark Wright, Brando Paris and Doug Lefaive for the applicant; Erin R. Kuzz, Joseph Liberman, and Scott Bates for the responding party.

DECISION OF THE BOARD; May 17, 1999

1. Board Files 2607-98-R and 2687-98-R are certification applications under the Labour Relations Act, 1995 (the "Act"). Board File 3150-98-U is an unfair labour practice claim ("the unfair labour practice application") by the union against the responding employer.

2. This decision deals with several preliminary objections made by the employer to the applications. The objections are described more fully below.

Background

3. A brief history of the matter is useful. The union first applied for certification of the bargaining unit which is the subject of the current certification application (Board File 2687-98-R) on September 19, 1997 (in Board File 2293-97-R) ("the first certification application"). A representation vote was held and the union lost the vote. Its application was dismissed and it was barred from bringing a fresh certification application for a period of one year.

4. The union complied with the bar and, on November 2, 1998, brought a fresh application for certification in Board File 2607-98-R ("the second certification application"). The employer raised a section 8.1 objection to the application. The union alleged there were 65 employees in its proposed bargaining unit (it took that figure from the information provided by the employer in the first certifica­tion application), the employer asserted there were 89 and it provided a list of employees it said were in the union's proposed bargaining unit. On November 5, following receipt of the employer's response, the union sought leave of the Board to withdraw the application. By decision of the Board (differently constituted) on November 9, 1998, such leave was granted unconditionally.

5. Armed with the information provided in the employer's response to the second certification application, on November 6, the day after it sought the Board's leave to withdraw the second, the union brought a fresh certification application in respect of the same bargaining unit (Board File 2687-98-R) ("the third certification application"). Presumably, by reference to the names provided on the employer's employee list provided in the second certification application, the union asserted there were 80 employees in its proposed bargaining unit. The employer responded on November 10, claiming there to be 92 employees. The bargaining unit proposed by the union was accepted as being appropriate by the employer. In the third certification application the union reserved its right to rely upon the provisions of section 11 of the Act, if necessary.

6. The Board (differently constituted) considered the parties' representations and, on Novem­ber 12, ordered a representation vote. That vote was to be held on November 16, 1998.

7. On November 13 the union wrote to the Registrar and the employer in the following terms:

I am assisting counsel to the Applicant United Steelworkers of America in the above captioned application.

The Board has ordered that the vote in this application for certification take place on Monday November 16, 1998.

We are writing to the Board to advise that since the filing of our application, several employees have been the subject of violent and extreme threats in the workplace. We are still presently investigating the full scope of the allegations. However, we are writing to advise the Board that while the Union is prepared to proceed with the vote on Monday, we are putting the Board and the Employer on notice that it is our intention to file an Unfair Labour Practice Complaint under section 96 of the Act and that we shall seek all available remedies under section 11 of the Act.

Furthermore, it is our understanding that certain employees have been offered substantial financial incentives to not vote on Monday. Others may have been intimidated into not voting on Monday. In these circumstances, we would ask that the Board officer conducting the vote on Monday check the identification of all persons who attend at the vote.

[emphasis on original]

8. It is common cause between the parties (this information is taken from the unfair labour practice application and the employer's response) that, on about November 11, four employees brought to management's attention claims that they had been threatened at work with violence by two fellow employees, Kutti and Kodi. As a result of the meeting between management and the four employees, Kutti's and Kodi's employment was terminated. Management then convened meetings with the employ­er's Sri Lankan employees on November 11 and 12 and the threats of violence to certain employees by Kutti and Kodi were discussed.

9. The representation vote was held on November 16. Some spoiled ballots and the status of seven individuals were in dispute between the parties. The ballot box was sealed under the Board's decision ordering the vote.

10. The Board's Retuming Officer issued the Board's standard Form T-36 to the parties with his report following the representation vote. The Form reads:

TO: THE PARTIES LISTED ON APPENDIX "A"

[not included]

1. Attached is a copy of my report following the representation vote held on November 16, 1998, under the Board's direction dated November 12, 1998.

2. If you wish to make representations concerning any matter relating tot he application for certification which remains in dispute, or any matter relating to the representation vote, the accuracy of the report, or the conclusions the Board should reach in view of the report, you must file a statement of representations with the Board which must include the following details:

(a) the full name, address, telephone number and facsimile number (if any) of the party making the representations, of a contact person for that party, and of any other party;

(b) a detailed statement of all the material facts on which you rely, including the circumstances, what happened, when and where it happened and the names of any persons said to have acted improperly; and

(c) a complete and detailed statement of all the representations that you would like the Board to consider.

3. A statement of representations referred to in paragraph 2 must be filed with the Board so that it is received by the Board not later than November 23, 1998.

4. Please note that you will not be allowed to present evidence or make any representations at a hearing about any material fact that was not set out in the statement of representations and filed promptly in the way required by the Board's Rules of Procedure, except with the permission of the Board.

5. Copies of this notice and the attached report must be immediately posted by the employer where they are most likely to come to the attention of all employees who may be affected. They must be kept posted until the close of business on November 23, 1998. The employer must promptly inform the Registrar of the date and time of the postings by completing and returning Form T-48 (Return of Posting) which is attached. The applicant must also promptly inform the Registrar of the date and time of the postings by completing and returning Form T-49 (Advise of Posting) which is attached.

DATED at Woodbridge, Ontario on November 16, 1998.

11. No written representations were received from the union between the date of issue of the Form T-36 on November 16 and November 23, 1998, the date stipulated in the Form for the filing of a statement of representations. No request was made to the Board by the union for leave to extend the time period of 5 days for the filing of a detailed statement of material facts pursuant to the requirement of paragraph 2(b) of Form T-36, or to condone the late filing of its representations.

12. On December 11, one working day prior to the scheduled hearing date of the third certifica­tion application, the union filed the unfair labour practice application. It gave content to the broad allegations made in its letter of November 13.

13. The matter came before the Board on December 14. The Board (differently constituted) issued a decision on December 15, explaining what occurred on December 14. For ease of reference that decision is repeated:

1. This matter is an application for certification.

2. Following the taking of the representation vote on November 16, 1998, three issues remained in dispute. The applicant challenged a number of ballots cast in the representation vote on the basis that they were spoiled. The applicant further challenged seven individuals as not properly on the voters list on the basis that they were either managerial or not employees. The responding party argued that a one year bar should be imposed in an earlier application for certification (Board File No. 2607-98-R) which was withdrawn by the applicant on November 5, 1998 such that the instant applicant should be dismissed.

3. At the commencement of the hearing, the panel was advised by counsel for the applicant that the applicant was withdrawing its challenge to the ballots it had asserted were spoiled. Excluding the ballots cast by the seven individuals challenged by the applicant on the basis that they are not properly on the voters list, 42 ballots were cast in favour of the applicant and 42 ballots were cast in opposition to the applicant.

4. Based on the fact that the applicant's count position was such that 50 per cent or less of the ballots cast in the representation vote were cast in favour of the applicant and, as a result, pursuant to section 10(3) of the Labour Relations Act, 199S (the "Act"), the application would be dismissed and a one year bar imposed, counsel for the responding party advised the panel that the responding party agreed to the removal of the seven individuals challenged by the applicant from the voters list. Counsel for the responding party advised the panel that the responding party maintained its position that a one year bar should be imposed in Board File No. 2607-98-R.

5. The panel was further advised that, on Friday, December 11, 1998, the applicant had filed an application under section 96 of the Act in which the applicant asserts that the responding party committed a number of unfair labour practices prior to the representation vote as a consequence of which the results of the representation vote taken on November 16, 1998 do not reflect the true wishes of the employees and seeks relief pursuant to section 11 of the Act. As of the morning of the hearing, the applicant's section 96 application had not yet been processed by the Board and the matter had not been assigned to the instant panel for determination. The applicant's section 96 application has since been processed and assigned Board File No. 3150-98-U. The responding party sought to argue that Board File No. 3150-98-U be dismissed on the basis that it was not filed in a timely manner.

6. Board File No. 3150-98-U was not scheduled for hearing on December 14, 1998. As indicated above, the matter was only filed with the Board on the preceding Friday and had not yet been processed by the Board. No response had yet been filed by the responding party and accordingly it was not possible to identify the facts relied upon by the responding party in support of its assertion that the matter was untimely and the extent to which such facts were in dispute. As a result, the panel determined that it would not entertain the responding party's preliminary motion with respect to Board File No. 3150-98-U. The panel indicated that Board File No. 3150-98-U was to be processed in the normal course. In accordance with the usual procedure, the responding party is free to set out its position concerning the timeliness of the application in its response and request that the matter either be dealt with by way of written submissions or a single day of hearing prior to the matter being scheduled on the merits.

7. The panel further determined that it was not appropriate to issue a final decision in Board File No. 2687-98-R until such time as a decision is rendered in Board File No. 3150-98-U. Likewise, the panel determined that the responding party's request that a bar be imposed in Board File No. 2607-98-R is more appropriately dealt with after a final decision is rendered in Board File No. 3150-98- U.

8. Having regard to the foregoing, Board File No. 2687-98-R is hereby adjourned. When Board File No. 3150-98-U is scheduled for hearing, the Registrar of the Board is directed to list it for hearing together with Board File Nos. 2607-98-R and 2687-98-R.

9. This panel is not seized of any of these matters.

14. The employer reiterated its preliminary objections in writing on February 14, 1999. The Board (differently constituted) endorsed the file records in the applications on February 22, directing the union to respond to the objections. The union's response was made on March 19.

15. The employer responded to the unfair labour practice application on March 15. The matter came before me on May 4, 1999.

The preliminary objections

16. The employer makes the following preliminary objections to the applications, some in the altemative. It contends that:

(a) by failing to file "a detailed statement of all the material facts on which" the union was relying and "representations concerning" the matters raised in the unfair labour practice application in a timely manner by November 23, 1998, as required in Form T-36, that application and the union's endeavour to rely upon section 11 of the Act are flawed to the extent that any relief is sought in relation to the representation vote;

(b) the unfair labour practice application fails to disclose a prima facie case;

(c) in the alternative to the prima facie challenge, certain portions of the applica­tion should be stricken as being prejudicial and/or of no probative value and/or for lacking sufficient particularity;

(d) a bar should be imposed against the union's third certification application because of the circumstances of the withdrawal of the second certification application.

17. These objections will be addressed in turn.

The timeliness objection

18. The timeliness requirement for unfair labour practice applications is contained in

Rule 16, which reads:

16. Where a party in a case intends to allege improper conduct by any person, he or she must do so promptly after finding out about the alleged improper conduct and provide a detailed statement of all material facts relied upon, including the circumstances, what happened, and when and where it happened, and the names of any persons said to have acted improperly.

19. The timeliness requirement for representations concerning representation votes is

contained in Rule 41, which reads:

41. Any party or person who wishes to make representations about the vote or the report must file those representations in writing promptly, and in any event within five (5) days of the date the report was first posted. If a party or person wants an oral hearing, this request must be set out in the representations together with the reasons for the request in the way required by these Rules.

20. There is little dispute between the parties that, if only Rule 16 is of application, then the union has filed its complaint "promptly". The incidents giving rise to the complaint occurred on or about the period of November 7 to 12, 1998, and the unfair labour practice application was filed on December 11, 1998. The Board measures timeliness in unfair labour practice applications in "months rather than years". The union's unfair labour practice application certainly complies with that.

21. But the union's unfair labour practice application is, in large measure, also governed by Rule 41 (and Form T-36). The wording of Rule 41 and of Form T-36 is sufficiently broad to encompass most of the unfair labour practice application. The application is incorporated within the terms, "any matter relating to the application for certification which remains in dispute" or "any matter relating to the representation vote". The gist of the union's complaint is that the representation vote was tainted by the action of persons whom the union alleges were acting at the behest of the employer and its certification application has been thwarted by that action. (Some of the relief sought by the union goes beyond what is ancillary to another representation vote, and the portion of the unfair labour practice application which pertains to that relief is governed solely by Rule 16. But the bulk of the relief sought by the union is directed to obtaining a fresh representation vote and relief ancillary to that). All conduct directly connected to the representation vote, such as the serious intimidation and coercion alleged by the union, is covered by the provisions of Rule 41 and Form T-36. The union should therefore have filed representations and a detailed statement of material facts by November 23, 1998. The effect of this conclusion is that the requirement merely to file the application "promptly", as provided for in Rule 16, is constricted by the specific context of the complaint against the employer, wbich brings the application within the parameters of Rule 41 and Form T-36.

22. Was there compliance by the union with Rule 41 and Form T-36? Rule 41 requires a prompt filing of representations, which must have been done, in this case, by November 23. The union complied with that obligation. Its letter to the Board and the employer of November 13 meets the requirement to make "representations about the vote" by November 23.

23. The union did not comply with the requirements of Form T-38. The Form requires the filing of a statement of representations which must include the following details: "...a detailed statement of all the material facts on which you rely, including the circumstances, what happened, when and where it happened and the names of any persons said to have acted improperly..." The union's detailed statement of representations appeared only in the unfair labour practice application on December 11, some 14 working days after the date stipulated in Form T-36.

24. Is the union's unfair labour practice application a nullity, as the employer argues, because it was filed after the 5-day period stipulated in Form T-36, or will the Board, in the circumstances of this case, relieve against the strict application of its provisions? In other words, does the Board treat the requirement in Form T-36 (as read with Rules 41 of the Board's Rules) to file representations (under Rule 41) and a detailed statement of all the material facts (Form T-36) within 5 days of the vote as being peremptory, in the sense of a bright line test, which the Board will not relieve against; or, does the Board relieve against that time limit if there is good reason to do so, and if so, is this such a case?

25. Much careful argument and authority was presented by the parties on this issue. The parties referred, among others, to Burlington Hotel Company Limited [1969] O.L.R.B. Rep. November 970; Gignac, Sutts, Nosanchuk [1973] O.L.R.B. Rep. August 438 (which followed Burlington Hotel on similar facts); Polytech Coatings Limited [1991] O.L.R.D. No. 901; Pure Spring [1964] O.L.R.B. Rep. December 476; H.D. Lee Company of Canada Limited [1975] O.L.R.B. Rep. January 55; Canadian General-Tower Limited [1968] O.L.R.B. Rep. October 712; B & B Electrical Co. [1996] O.L.R.B. Rep. November/December 907 and Maxi [1998] O.L.R.D. No. 3975.

26. The Board cannot condone non-compliance with the provisions of the Act (see Associated Contracting Inc., [1998] OLRB Rep. Nov./Dec. 903). It can, and in appropriate circumstances does, relieve against the strict application of its Rules, as contemplated in Rule 22:

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

27. What is significant in all of the cases to which I was referred is that the Board has not adopted a bright line test in dealing with the late filing of particulars. The Board approaches the matter by asking questions like the following: What is the extent of the delay? Is there a good explanation for the delay? Was notice of the application given in a timely manner? Was the party seeking condonation of the late filing duly diligent in bringing the application to fruition or could the application reasonably have been brought within the prescribed time limit? Are the allegations made in the application particularized, and are they substantive allegations which, if proved, might constitute a serious violation of the Act? Most importantly, what is the relative prejudice to the parties caused by the delay? The Board will balance these considerations against its interests of ensuring that parties are encouraged to comply with the time limits set out in the Board's Forms and Rules and that its procedures remain expeditious (see, in this regard, paragraph 17 at page 63 of H.D. Lee Company of Canada Limited).

28. I turn now to the explanation provided by the union for the late filing of its representations and to the parties' relative prejudice. In the union's letter of November 13 it gave the broad brush of the allegations it would subsequently amplify. It also explained that it would be investigating "the full scope of the allegations". That investigation involved taking statements from employees of Sri Lankan origin who are not English-speaking, through the use of an interpreter. Telephone interviews were not possible. That process, according to the union, was such that it could not be completed within the time period stipulated in Form T-36.

29. The union ought to have sought an extension of time from the Board prior to the expiry of the period stipulated in Form T-36. That was the proper way for dealing with its difficulty in complying with the time limit. Had it done so and explained the reasons now provided, it would almost certainly have got an extension. That was the proper procedure and it would have avoided the time and effort involved in having this aspect of the employer's preliminary objections determined.

30. What of the relative prejudice to the parties which would be occasioned by the grant, or refusal, of condonation for the union's late filing of its application? The employer alleges that it was deprived of the opportunity of addressing the matters raised by the union in a timely manner. It contends that, had it been informed in a timely manner of the union's complaint, it might have taken appropriate steps to ensure the propriety of the representation vote. It contends that it could do nothing to correct any misapprehensions concerning the vote once the vote was over and the particulars of the union's complaint were provided.

31. In contrast, the union contends that the allegations it has made in its complaint are extremely serious (threats of death, physical assault, allegations of bribery) and if it is not given the opportunity to have the complaint aired it will suffer severe prejudice in that it will not be able to attempt to overturn the result of a representation vote which it considers tainted by illegality.

32. I am persuaded that the union would suffer considerable prejudice if its complaint were not permitted to proceed and if it were not given an opportunity to prove its allegations of unlawful conduct. My comments as to the prima facie merits of its complaint are addressed below. I am not persuaded that the employer has suffered any significant prejudice by the late filing of the union's complaint. It knew the broad outline of the complaint on November 13, three days before the vote. In addition, it is common cause that the employees who complained of being threatened and intimidated reported their fears to the employer before the representation vote and meetings were held between management and the employees who might have been affected by the offending occurrences and management took steps to assuage their fears. In any event, the union had an entitlement to file its detailed statement of material facts within five days after the representation vote, and had it done so, complying with the terms of Form T-36, the employer would have been in no better position to address the particularity of the complaint than it is now. Therefore, the balance of convenience, or the relative prejudice to the parties, strongly favours the union.

33. In the Burlington Hotel case the Board found that the applicant union in that case had not investigated the allegations it made at an early time so as to comply with the provisions of the Board rule requiring a timely application. The other parties in that case were "caught by surprise with no reasonable time to prepare a defence to any charges by the hearing date" (paragraph 6). There was no notice to the other parties of the charges of impropriety before the day preceding the hearing. Those charges were in general terms. An important different between this case and Burlington Hotel is that here the union gave the notice (which appears in Burlington Hotel to have been given the day before the hearing) prior to the representation vote, on November 13, and within the period prescribed in Rule 41, alerting the employer to the allegations which would be given substance and particularity in the subsequent unfair labour practice application. It also

alerted the employer and the Board of the fact that additional time would be required to gather the necessary particulars so as to prepare a section 96 application.

34. Polytech Coatings has significant differences from the facts in this case. Principally, there was an agreement by the parties to put aside their differences and have their dispute determined in a representation vote. Then, some time after the vote, one of the parties sought to revive allegations of misconduct which it had decided to forego by agreeing to the representation vote. The Board had this to say on the matter (at paragraph 9):

…Having agreed to that vote with full knowledge of the car threats, the respondent cannot legitimately be permitted to resurrect those allegations after the vote has been taken and has yielded a result which is not to its liking.

Furthermore, in Polytech Coatings the Board found that there was no legitimate explanation for the respondent's failure to file its allegations in a timely manner.

35. In this case the union relies upon the provisions of section 123 of the Act:

123. No proceeding under this Act is invalid by reason of any defect of form or any technical irregularity and no proceeding shall be quashed or set aside if no substantial wrong or miscarriage of justice has occurred.

36. It contends that a "substantial wrong or miscarriage of justice" would occur if the Board time limits were strictly applied in this case. In general the Board has applied this section only in circumstances in which there is a purely technical breach of its Rules. That is not the case here. A failure to file a pleading in a timely manner is not a purely technical error, as contemplated by section 123, it is a substantive matter which requires substantive consideration (see Saint Elizabeth Health Care - Durham Region [1996] OLRB Rep. Nov.IDec. 1008; Win. Roberts Electrical and Mechanical Limited and Win. Roberts Investment Inc. and others [1999] OLRB Rep. Jan./Feb. 113).

37. This case is, in very large measure, similar to that decided by the Board in Maxi. That case, like this, involved an unfair labour practice complaint which was linked to a certification application, and to relief sought under section 11 of the Act. The applications were consolidated, just as the applications in this case are to be heard together. In that case the Board was faced with an unfair labour practice application which was filed over S months after a representation vote. Prior to the end of the post-vote period (the 5 days following the Officer's Report after the vote), the union had filed a statement which contained some general allegations, which were amplified in the later unfair labour practice application. The unfair labour practice application was launched so that the applicant union in that case could rely upon additional allegations, not previously pleaded, for relief under section 11 of the Act in its certification application. The Board found, firstly, that it could relieve against the strict application of its Rules, and, in the circumstances of that case, it did so. It found the unfair labour practice application to be timely.

38. The facts in this case are more compelling for condoning the late filing of the union's unfair labour practice application than was the case in Maxi. The period of delay here is less than 3 weeks, there it was over 5 months. The relative prejudice to the parties by the grant or refusal of condonation is at least as persuasive and the explanation for the delay is at least as convincing (see paragraph 10 of Maxi).

39. The union's error in this case was not to seek an extension of time within which to file its section 96 complaint in circumstances when it ought to have realized that, by seeking relief linked to the certification application, it had to comply with the time limits set in Form T-36. However, for the reasons stated above, I am satisfied that the balance of convenience between the grant of relief to the union (to enable it to proceed with its complaint) as compared to the prejudice to the employer in receiving the application about three weeks later than it should have, weighs heavily in favour of the union. The allegations in the unfair labour practice application, if proved, are serious and deserve the Board's attention. In all the circumstances I condone the union's late filing of its section 96 complaint and I dismiss the first preliminary objection.

The prima facie merits of the union's application and its particulars

39. The employer argues that the union's unfair labour practice application fails to disclose a prima facie case or, in the alternative, certain portions of the application should be stricken as being prejudicial and/or of no probative value and/or lacking sufficient particularity.

40. In the course of argument, the employer pointed to various allegations in the application which it regarded as prejudicial to it. That was as much conceded by the union and I ruled that portions of the complaint, detailed below, be struck out.

41. Besides the portions of the union's particulars of claim, which I have struck out, the employer argues that certain others lack sufficient particularity. Pleadings are designed to enable a party to respond accurately to the allegations made. The particulars should be such that the incidents they describe are readily identifiable in the mind of the responding party - i.e. as to who was present, what happened, where and when - so that the respondent can either admit, deny or qualify the allegations made in the particulars. Save in one respect, I find that the union's particulars meet that standard. I am not persuaded that any greater particularity is required by the Board's Rules than has already been given by the union, except in paragraph 15 of its particulars. As provided in the conclusion of this decision, the union is directed to provide better particulars there.

42. The test, in respect of the prima facie objection, is whether, taking the union's allegations, as amended, as being true and provable, can the Board find that there has been a violation of the Act entitling the union to all or some of the relief it seeks? Treated as a whole, I am satisfied that the union's particulars of claim set out a case that the employer hired particular individuals after the certification application was launched, but before the representation vote was held, who, with some degree of employer accommodation, set about (in a manner described in detail in the particulars) threatening, cajoling, frightening and intimidating various employees who were to cast ballots in the representation vote. If those allegations are proved, the Board could find that there has been a violation of the Act by the employer. The Board could also find that the reliability of the representation vote which occurred after the alleged unlawful conduct by the new hires might have been vitiated by their conduct. In these circumstances there is at least an arguable case which the employer must meet. I therefore dismiss the preliminary objection that the union's unfair labour practice application does not disclose a prima facie case.

Should a bar be imposed against the union's third certification application because of the circumstances of the withdrawal of the second certification application?

43. The union withdrew its second certification application once it had received the employer's response. It acquired a copy of the employee list and it then submitted its third certification application. Presumably it checked its membership evidence against the employer's employee list and it determined from the list the names of the persons whom it regarded as being employees. It then gave a different (a larger) number of employees as its estimate of the number of employees in its proposed bargaining unit than it had given in its second certification application. The employer regards the union's action as being an abuse of process which should warrant the imposition of a bar on the third application.

44. Under subsection 7(9) of the Act, the Board has a discretion to impose a bar on a certification application which is withdrawn prior to the holding of a representation vote. The Board has, on several occasions, determined that if a certification application is withdrawn in the face of certain defeat (such as is contemplated under subsection 7(10) which has a mandatory bar), or if the withdrawal and subsequent application together constitute an abuse of the Board's processes or amount to harassment of the employer or are disruptive of the working relationship between the employer and its employees, the Board will exercise its discretion and impose a bar. The Board has, in Sara Lee Bakery Canada [1996] O.L.R.B. Rep. May/June 480 considered the situation in which a certification application follows on the heels of an earlier application. At paragraph 46, at page 487, the Board stated:

46. It may often be the case that the applicant trade union will discover information from the employer's response that will cause it to withdraw its application. A trade union's ability to obtain accurate information abut the identity of the employer, the configuration of the workplace, the number of employees, and other matters which may be relevant to the certification application, is limited. The employer's response to the certification application may provide new information to the applicant to cause it to reconsider the advisability of pursuing the application. Although an employer may suffer inconvenience in responding to a certification application which is subse­quently withdrawn, the employer suffers no prejudice in the withdrawal of a certification application prior to the taking of a vote, and the subsequent refiling of a new application. We recognize that the subsequent application may be based upon information the union has gained from the first applica­tion but we see nothing improper in this.

45. The union's first certification application is irrelevant to my consideration of whether a bar should be imposed following the withdrawal of the second application. The union complied with the burden imposed upon it when it lost the representation vote which was ordered in that application. It was barred from making a new application and it complied with that bar. That bar is analogous to a sunset clause in a collective agreement - when the period has expired, there is a "washout" of the prior conduct.

46. The union withdrew the second application upon receipt of the employer's response, which included a challenge to the union's estimate of the number of employees in its proposed bargaining unit and a notice under section 8.1. of the Act. As stated in Sara Lee Bakery, a union has a limited capacity to make an accurate assessment of the number of employees in its proposed bargaining unit. It cannot itself check the information given to it by the employees who support its efforts to be certified. It must rely upon their information until it is able to receive the information provided by the employer in its response. In this case the union relied upon the information it had obtained in the first certification application. It was only after receiving the employer's response in the second application that it was apprised of the change in circumstances. The information showed that the union's initial impression of the number of employees in its proposed bargaining unit was inaccurate and it chose to amend it. Such clarification, particularly in the context of a further certification application which follows quickly thereafter, as in this case, suggests a bona fide attempt to provide the Board with accurate information and to avoid unnecessary litigation.

47. I do not find the union's second certification application to be a mere reconnoiter to determine the lie of the land, without a serious intention to proceed further. The union showed that was not the case when it immediately launched a fresh application. The third application was not an abuse of process - on the contrary, it appears more to have been an attempt to perfect an application which the union found, on being better informed, to be factually incorrect.

48. The employer suggests that in a vote-based system, as opposed to a card-based system under which the Board's jurisprudence in this area was developed, a withdrawal after receipt of the employer's response is tantamount to a recognition that the union could not win the vote, and hence a bar should be imposed. That view is not borne out by the facts in this case. The union did not withdraw the second certification application and then proceed no further. It withdrew only to correct its estimate of the number of employees in its proposed bargaining unit. That suggests a desire to provide the Board with accurate information, not an endeavour to avoid a defeat at the poll.

49. In all of these circumstances, this is not an appropriate case to impose the discretionary bar contemplated under subsection 7(9) of the Act.

Conclusions

50. Accordingly, I confirm that each of the preliminary objections is denied, save as provided below. The union's unfair labour practice application is amended by the striking out of the following portions of Schedule "B" thereof:

(a) the words following the word, "companies", in the fourth line of para­graph 2;

(b) paragraphs 3 and 4;

(c) the words, "and other supervisors" in the second line of paragraph 22;

(d) paragraph 34.

51. The union is directed to provide further and better particulars to the reference to "persons known to be members of a Sri Lankan street gang" in paragraph 15 of its particulars of claim.

52. The hearing will proceed on May 20, 1999. Although there is a reverse onus, the parties have agreed that the union should present its case first.

53. l am seized.