[1980] OLRB Rep. December 1811

2099-79-U; 2139-79-U; 2140-79-U; 2216-79-U; 2443-79-R; Hotel and Club Employees' Union, Local 299, Toronto, of the Hotel and Restaurant Employees' and Bartenders' International Union (A.F.L.-C.I.O.-C.L.C.), Applicant, v. Skyline Hotels Limited, Respondent.

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members F. W. Murray and B. L.

Armstrong.

APPEARANCES: Alick Ryder, Q. C. for the applicant; G. Grossman for the respondent.

DECISION OF M. G. MITCHNICK, VICE-CHAIRMAN, AND BOARD MEMBER B.L. ARMSTRONG; December 30, 1980

1. This matter involves the consolidation of a number of Board files arising out of efforts by the applicant, the Hotel and Club Employees' Union, Local 299, to organize employees of the respondent's Skyline Hotel located on Dixon Road in Toronto. The Board finds the applicant to be a "trade union" within the meaning of section 1(1 )(n) of The Labour Relations Act. The respondent's "bar" employees already are represented by Local 280 of the same union, and still another Local represents the employees of the respondent at its Skyline Hotel in Ottawa. Local 299 itself already represents employees of the respondent at "The Old Mill in Toronto.

2. The present organizing campaign began in the last week of January 1980. As a result of certain incidents occurring in the first week of February, the applicant filed a section 79 complaint, containing a number of unfair labour practice charges, on February II, 1980. Thereafter further section 79 complaints were filed, and these have all now been consolidated in the present proceedings. In essence, the complaints being pursued before the Board charge the respondent with excessive and improper use of security and surveillance arrangements, the fostering of an "in-house" employee committee, the issuance of an intimidating letter to switchboard operators, the removal of union cards from an employee's locker, and the lay-off or discharge, over a period of two weeks, of nine employees because of their union activity.

3. On February 28, 1980, the applicant filed its application for certification, in which it requested the taking of a pre-hearing vote. On March 13, 1980, the parties met with a Labour Relations Officer of the Board to determine the voting constituency and membership strength of the applicant, and the applicant discovered at that meeting that it lacked the thirty-five per cent membership support prerequisite to the Board's directing of a pre-hearing representation vote. The applicant then withdrew its original application (see decision of the Board dated March 31, 1980, Board File No. 2229-79-R) in favour of the present application for certification (Board File No. 2443-79-R). This application requested the issuance of a certificate pursuant to the Board's discretion under section 7a of The Labour Relations Act, relying upon the alleged violations of the Act contained in the aforesaid section 79 complaints. The Board in a further decision dated June 5, 1980, ruled that it was not improper for the applicant to determine whether it had sufficient membership evidence for a pre-hearing vote, prior to relying on the inherently more protracted proceeding of an application under section 7a. With the agreement of the parties the new application for certification, being Board File No. 2443-79-R, was then consolidated with the section 79 complaints ongoing before this panel of the Board. The application essentially covers the full-time, non-bar employees of the respondent, being some 370 in number. There are approximately 250 part-time employees employed in the same categories.

4. Word of the applicant's organizing campaign first came to the respondent as a result of a complaint about the union made by an employee to her supervisor. This occurred on Friday, February 1st. The supervisor, Mrs. Bomba, then reported this to the Hotel's General Manager, Mr. Elsayed. Mr. Elsayed responded the same day by contacting the Hotel's regular security firm, Intertec, and arranging for the addition of three further security men for the next day, as well as the implementation of a signing-in procedure for all employees. The sign-in form itself requires an employee to indicate the time of his arrival, his scheduled starting time, and his department and supervisor. Mr. Elsayed testified that security at the Hotel had to that point been under-staffed and below the level needed to cover all exits and entrances for a normal hotel operation. He explained that it had not appeared necessary or he had not gotten around to doing anything about the situation until he heard the reports of union organizing taking place on the premises. He stated the purpose of the additional staff, apart from manning the sign-in procedure, was to patrol the Hotel "from top to bottom" to ensure that normal Hotel policies were observed and no one interfered with the staff while working, and also to prevent anyone who was not "authorized" from entering staff areas. It appears from the evidence that "staff areas" really meant any areas which were the property of the Hotel. Mr. Tom Lyall, who supervised the Hotel's security arrangements on behalf of Intertec, gave evidence before the Board and testified that his instructions were to lead management to any "abnormal employee movements" on the property owned by the respondent (including the portions exterior to the building). According to Mr. Lyall, the Security build-up began on the morning of Saturday, February 2nd, with an "emergency" request for three additional staff to handle the sign-in procedure. Mr. Lyall further testified that the build-up of security measures lasted until about the middle of March (which the Board notes was roughly the terminal date for the first application for certification) and that during that period Mr. Lyall moved into the Hotel at the request of the respondent.

5. Initially Mr. Elsayed testified that he took the action he did on February 1st in response to the report from Mrs. Bomba in the morning that one of her employees complained of being approached by the union. When examined on this by counsel for the applicant, however, Mr. Elsayed stated that Mrs. Bomba returned to him in the afternoon and reported that several more employees had been approached by the union that day. There are problems with either version in explaining Mr. Elsayed's actions. Firstly, the evidence of both the employee, Joyce Barclay, and Mrs. Bomba make it clear that Mrs. Barclay's only complaint on the 1st was that someone from the union had telephoned her at home, when no one was supposed to have her number. Secondly, Mrs. Bomba was again clear in her evidence in saying that she had no further conversations with Mr. Elsayed that day.

6. In any event, Mr. Elsayed's next step on that day was to call a special meeting of all of the department heads in the Hotel at 4:30. Mr. Elsayed testified that he asked whether anyone else had heard of any organizing on the premises, and he advised the supervisors present that the employees could organize if they wanted to, so long as they did it properly. This apparently meant off the premises. The supervisors were instructed to keep a lookout for employees being approached on the premises. If an incident of this type were observed, they were to contact the Manager, or if it was another employee involved, to sent that employee back to his or her own work area.

7. That same afternoon an incident occurred involving a member of the Hotel's bell-stand, Mark Clarke, and the Hotel's Personnel Manager, Christine Smith. The applicant had held three meetings off the Skyline premises to discuss the possibility of organizing the Hotel, and these were attended by 5 or 6 employees interested in helping, including two members of the bell-stand, Mr. Clarke and Rick Walker. According to Clarke, Ms. Smith stopped him as he was reporting to work at 3:00 p.m. on February 1st and asked: "When's the union getting in?" She added that she knew it was Mr. Clarke who had started it. Mr. Clarke said he had not been scheduled to work the last two days, and had no idea what she was talking about. Ms. Smith then apologized for what she had said, and explained that she had to use a scare tactic to see if he was involved. She mentioned that she had gotten word from the front desk that the organizing had come from the bell-stand, and added, "It must have been Rick then". The conversation then turned to unions in general, and Ms. Smith commented that she did not mind herself if a union came in, but Mr. Hodgson (the owner) told her she would be Personnel Manager as long as the union did not get in.

8. That same day Mr. Clarke, as happens on occasion, was sent home early because of lack of business for the bell-staff. He returned after 1:00 a.m. with Mr. Walker and Mr. Hounslow (a staff organizer for the applicant) and began signing people up outside the Hotel. Because of the cold, the three eventually went inside the Hotel to the employee's time-clock area, and continued to sign people up there. After Hounslow and Walker had left, Mr. Clarke sat talking with another employee, Ian Jenkyn, for about an hour. The union cards were stacked beside him on the security desk. Around 3:30 a.m. security officer returned to the area, and discovered Mr. Clarke and Mr. Jenkyn. There is wide disparity in the evidence as to what ensued, but it is clear that the security officer ultimately said that he had better inform the Duty Manager about this, whereupon Mr. Clarke and Mr. Jenkyn departed in haste.

9. Around 8:30 a.m. Mr. Elsayed received a report that someone from the bell-stand had been at the security desk at 3:30 in the morning trying to organize on company premises, and Mr. Elsayed attended at the Hotel within the hour. From the description given by the security officer it was surmised that one of the individuals involved was Mark Clarke. Mr. Elsayed checked and found that Mr. Clarke was not yet punched or signed in for that day. About 10:15, however, it was reported to Mr. Elsayed that Mr. Clarke had been seen on the Hotel premises, in uniform. A search then began for Mr. Clarke involving Mr. Elsayed, his assistant Mr. Shukler, the front desk manager, the Duty Manager, and Mr. Lambrakos, the head of maintenance. Mr. Clarke, however, was not seen again that day.

10. Mr. Clarke's evidence was that because he had been sent home early on Friday, he decided to come in early on his own on Saturday, around 10:00 a.m., and work just for tips, in the hope that registrations would be heavy. Because he was not scheduled until noon, he did not punch in. He did notice a number of employees at the security desk, but walked past without being seen and without signing in. He testified that at the time he was unaware of a new sign-in procedure, and that he felt the employees gathered at the security desk may have been simply reading a newspaper. He described this practice of coming in early and working only for tips as not uncommon amongst members of the bell-stand, although not one that had ever been approved by the Bell Captain, George Lucas. Mr. Clarke agreed that the Hotel was slow during the period, but said that sometimes a Saturday might be busy between 11 a.m. and 1 or 2 p.m. He maintained that he was unaware that anyone was looking for him. Rather, he testified that after being on for something less than 45 minutes, it was decided amongst the bell staff that business was slow and someone ought to go home. According to Mr. Clarke, Rick Walker, who was the Senior Bellman that day, suggested that since Clarke had not punched in, he might as well take the whole day off. The respondent's evidence on this point is that the Senior Bellman does not have the authority to send a man home early without checking with the Duty Manager. In any event, Mr. Clarke left the Hotel some time around 11:00 a.m.

11. When Mr. Elsayed was unable to locate Mr. Clarke that morning, he asked to see the time-sheet, and discovered that Mr. Clarke was not scheduled to start until noon. He then phoned George Lucas, the Bell Captain, at home and told him that one of his men, Clarke, had been seen at 3:30 that morning trying to organize on company premises. He directed Mr. Lucas to get hold of Mr. Clarke and suspend him pending investigation. Mr. Elsayed then decided on Sunday to discharge Mr. Clarke (without speaking to him) and Mr. Lucas was told to notify Clarke of that fact. The reason given by Mr. Elsayed for not waiting to hear Mr. Clarke's explanation is that Clarke failed to show for his Sunday shift as well. Mr. Clarke denies this, and the Board notes that no reference was ever made in the respondent's reasons for discharge to missing more than one shift. The grounds which Mr. Elsayed gave to the Board for the discharge of Clarke (apart from one dealt with below) are as follows:

(1) being on company premises when he was not supposed to be in;

(2) being on duty the next morning in uniform without using the proper entrance;

(3) failing to show up for his 12 o'clock shift;

(4) organizing on company premises.

Mr. Elsayed testified that it is a rule of the Hotel that employees must be off the premises within half an hour of completion of their shift. Ian Jenkyn, the other employee with Clarke at 3:30 Saturday morning, received a three-day suspension for the incident. Mr. Jenkyn is employed in one of the Hotel's bar-rooms, and accordingly is covered by the collective agreement with the applicant's sister local. The outstanding feature of Clarke's case, according to Mr. Elsayed, was the fact that he had alcohol on the premises. However, the evidence indicated there were two cans of "pop" that night, so that the distinction between Clarke and Jenkyn on this ground is difficult to sustain. More importantly, the applicant complained that this was not a ground raised by the respondent at any time prior to the hearing, and objected to its admission. The majority of the Board upheld the applicant's objection on the basis that the ground sought to be relied upon was not one of the previously-stated reasons for discharge, and noted as a practical matter that the respondent could scarcely hope to satisfy the reverse onus under section 79(4a) with a ground now said to be critical but which was overlooked by the respondent in filing its own reply.

12. The Board notes that evidence in connection with Clarke's discharge was also given by Mr. Lucas, the Bell Captain, and his evidence conflicted in a number of respects with that of Mr. Elsayed. Mr. Lucas, however, had at the time of testifying just returned from extensive hospitalization, and his recollection of the events in question appeared to be hazy at best. Because of Mr. Lucas' difficulty in recalling material points in the events of that period, the Board finds that it can place little reliance on his evidence, and the respondent must be judged on the basis of Mr. Elsayed's testimony. The Board notes that it was Mr. Elsayed's evidence in any event that the decision to discharge Mr. Clarke was his, and Lucas simply acted on his instructions.

13. The respondent was permitted to place before the Board a further incident with Mr. Clarke occurring on the evening of Monday, February, as evidence of the kind of conduct the respondent was encountering. The evidence is not disputed that Mr. Clarke and one or two other organizers were in "Diamond Lil's", one of the Hotel's bars, and that Mr. Clarke twice refused to leave when requested to do so by management. Mr. Clarke told first the Duty Manager and then the Assistant General Manager that they did not have the right to order him off the premises. The police were summoned by the respondent, and Mr. Clarke, after conferring with the police officer, left.

14. The earlier incident involving Mr. Clarke (at 3:30 Saturday morning) led to a discussion between Tom Lyall, the supervisor from Intertec, and Santos Perri, the security officer on duty that night. In the discussion Mr. Perri made it apparent that he was sympathetic to the union and was therefore having difficulty carrying out the instructions from the Hotel. Mr. Perri in fact indicated at that time (although he retracted it later) that he had even signed some employees on behalf of the union. It was agreed between the two men that it would be appropriate for Mr. Perri to resign, and he did so. A couple of days later Mr. Perri returned to the Hotel to clear out his locker, and was chatting with an employee in one of the shops. According to Mr. Perri, the owner, Mr. Hodgson, entered with several others and began swearing at him. He was told not to come back to the Hotel, and thereupon was escorted out. Mr. Perri testified that after that incident he became an active organizer of the Hotel's employees on behalf of the union. He added that on one occasion while doing so outside the Hotel, Mr. Shukler came running over and asked the lady Mr. Perri was talking to: "Is this man bothering you?" After that, the lady refused to talk to Mr. Perri.

15. The next significant event was the layoff (and ultimate discharge) of Frank Ragni. Mr. Ragni worked in the Hotel's restaurant known as Alf redo's, and the evidence establishes that he was employed essentially as a busboy. Mr. Ragni's evidence is that he was enlisted as an organizer by Ian Jenkyn on January 30th, the Wednesday before his layoff. He signed up a number of employees while at work on both the Wednesday and the Friday of that week. On Friday the restaurant's Maitre'd, Mr. Scovenna, approached Mr. Ragni and told him he had "a big mouth" and should not have "gotten involved". Mr. Ragni asked Scovenna's opinion of the organizing and was told it was all right, as long as he did not get caught. Mr. Scovenna in his evidence went so far as to agree that he had a discussion with Ragni a day or two before the layoff on the value of a union, and testified that he "may" have told him he had a big mouth. Mr. Scovenna' s main evidence was that it was decided about 10 days previously that there had to be a layoff, based on the level of business which the Hotel's figures forecast. Mr. Ragni was the choice for Alfredo's because the remaining employees were waiters and could do the work of both a waiter and a busboy. Upon further examination, however, it was revealed that no firm decision to lay off had been made at that time, and that in fact Mr. Scovenna was optimistic that no layoff would be necessary. No new element was raised to explain the decision attributed to Mr. Elsayed to lay Mr. Ragni off on Saturday, February 2nd, and Mr. Elsayed did not give evidence on Mr. Ragni's complaint. When Mr. Ragni reported for his shift at 3 p.m. that Saturday, he was not allowed to start work. Rather, he was advised by Mr. Shukler that he had to be laid off, and escorted out of the Hotel by security. The Board heard evidence from the respondent that it was normal to ban employees from the Hotel premises for a period of time following a discharge, but it is not clear whether the same policy is alleged to have applied to persons merely laid off. There was, in any event, no cogent evidence of the extent to which this policy was being enforced prior to the applicant's campaign.

16. The remainder of the respondent's evidence on Mr. Ragni pertained to the subsequent events of that evening. Mr. Shukler testified that he observed Mr. Ragni around the time-clock area around 7 p.m., but when he called to him, Mr. Ragni ran off. He saw Mr. Ragni again at 9 p.m., and made it clear that he was not wanted on the premises. About 11. p.m. Mr. Shukler heard from security that Mr. Ragni was again outside the south lobby, and Mr. Shukler proceeded to that entrance. Mr. Ragni explained that he was there to meet his sister. Mr. Shukler offered to escort him in to do so, but Mr. Ragni then said he had to wait for someone named "Bill". Mr. Shukler indicated to Mr. Ragni that if he persisted in coming back to the Hotel, he would have no alternative by to terminate him. According to Mr. Shukler, Mr. Ragni stated that he didn't care one way or the other, and that Shukler knew what it was about. Mr. Shukler then threatened to call the police, and Mr. Ragni left. Mr. Shukler then reported the incident to Mr. Elsayed, who apparently made the ultimate decision to fire Mr. Ragni. Mr. Ragni in his evidence agreed that he was in the area of the Hotel that evening, but he testified that he was simply waiting in his car for his sister, and that he left when he was told to do so. He testified that he met Mr. Shukler some weeks later and Mr. Shukler told him that he would get his job back "when all this cooled down". Mr. Shukler denies saying anything of that nature.

17. A complaint was also filed by the applicant in connection with Mr. Ragni's locker. Mr. Shukler testified that when he observed Mr. Ragni return to the time-clock area after his layoff on Saturday evening, he became concerned about the two Hotel tuxedoes which Mr. Ragni kept in his locker. Mr. Shukler therefore went to the locker room with Tom Lyall and opened Mr. Ragni's locker. He took note of everything which the locker contained, including a pile of union cards. Mr. Lyall testified that Mr. Shukler picked up a couple of the cards, glanced at them briefly, and put them back. Mr. Shukler testified that he re-locked the locker and then put a second lock on it. He returned later with a maintenance crew and placed the locker in the food-and-beverage storeroom, which is also locked. Mr. Regni testified that amongst the cards in his locker were two that had been signed. When he went to clear out his locker a week after his layoff, Mr. Ragni claims the two signed cards were missing.

18. Rick Walker, the second member of the Bell-stand allegedly referred to by Christine Smith, was discharged on either February 4th or 5th. The evidence established that there was considerable dissatisfaction with Mr. Walker's work performance during the early part of 1979. Mr. Lucas, the Bell Captain, could not, however, recall any specific incident of speaking to Mr. Walker since August of 1979. On either February 4th or 5th, Mr. Lucas called Mr. Walker into his office and stated that as a result of a complaint from a guest on the weekend, he was discharging him. Mr. Walker testified that he asked Mr. Lucas to tell him the nature of the complaint, but Mr. Lucas refused. Mr. Lucas, in his testimony, could not recall what he said to Mr. Walker, or what he said to Mr. Elsayed about this incident, or why he might have waited a day before acting on the complaint, or when it was that he first learned of the organizing activity at the Hotel.

19. Greg Kewley, another member of the bell-stand, was also notified by Mr. Lucas that he was being let go. Mr. Kewley testified that he was the one originally responsible for signing into the union the other members of the bell-stand. He had been employed since August of 1979 without a complaint. On February 5th, he was called into the office of Mr. Lucas and discharged. Mr. Lucas told him the decision came from higher up, as a result of complaints from customers. Mr. Kewley chose to call no evidence on his complaint.

20. The fourth member of the bell-stand terminated was Randy Nichols. Mr. Lucas testified that Nichols was approaching the end of his 3-month probationary period, and simply did not seem capable of picking up the work of a good bellman. Mr. Lucas further testified that he spoke to Nichols on a number of occasions and finally decided to terminate him on February 7th. In his own evidence, Mr. Nichols confirmed that he had in fact been employed for just under three months, but denied that he had ever been singled out by Lucas for criticism. Mr. Nichols testified that he signed a union card at work in the week of January 28th, and on several occasions thereafter spent some time outside the Hotel talking to the union recruiters. He added that on Wednesday, February 6th, Mr. Shukler and other management personnel came outside 2 or 3 times and were writing things down. The next day when he reported for work Mr. Lucas advised him that the Hotel had had a couple of complaints from guests and that he was being let go. Mr. Nichols' replacement was already on the job, and his separation papers were ready for him.

21. In addition to the extra security measures already undertaken within the Hotel, the respondent, on or about February 5th, instituted outside security patrols as well, beginning with one car normally stationed on the receiving ramp, which immediately overlooks the Hotel's employee-entrance. The evidence of Mr. Elsayed was that the purpose of the outside security was to ensure that no employees were being harassed by campaigners, and to provide an escort service to any employees who wished it. He added that management had received a number of requests for help from employees who were refusing to come to work. The Board did hear evidence more or less to that effect from several employees at the hearing, and their written complaints to management were filed as well. The written complaints, however, are mostly undated, and the oral evidence suggests that all of them were made at a point much later in February. There is no evidence that any employee ever used the outside security staff as an escort during the campaign, or recognized that as its purpose, and it is admitted that the respondent took no steps to communicate that purpose to employees generally.

22. Mr. Lyall, Intertec's supervisor, testified that the purpose of the cars was foremost to ensure that the people in the campaign which the Hotel had suspended did not come on the premises. This was confirmed by the testimony of the other Intertec personnel who were carrying out the exterior patrols. Indeed, the evidence of one of them, Bernard Wilson, was that he was having so much difficulty keeping the banned individuals from entering the Hotel that he recommended the addition of a second car. The evidence discloses that Messrs. Ragni and Walker, in particular, made repeated efforts to enter the premises when requested not to do so. When the security man would leave his post in pursuit of one of the banned individuals, or to report his entry to management, another of the group would be discovered to have entered the Hotel. Mr. Ragni would also drive his Corvette through the Skyline parking lot from time to time, apparently taunting the security staff. Following several of the above incidents, a second car was instituted on February 7th.

23. One of the cars regularly used for this purpose, and parked on the loading ramp, was a readily identifiable white "Intertec" car with an orange bubble on its roof. If a union organizer would step onto Skyline property to approach an employee, the security man would honk, and the organizer would step back. The evidence of the security personnel makes it clear that the ban on entry of the premises extended both to the terminated employees of the respondent, such as Messrs. Clarke, Ragni, and Walker, and to staff organizers such as Mr. Hounslow.

24. Early in the week of February 4th, two members of the Hotel's switchboard staff were terminated as well. One of them, Linda Hartery, testified that she had been employed 3 years without any complaints from management. On Monday, February 4th, Ms. Hartery came to work about an hour-and-a-half early and joined in the recruiting activity taking place just off the Hotel's back parking-lot. She testified that a number of members of management, including Mr. Shukler, at one point came out on the loading platform for several minutes and observed the actions of herself and the other recruiters. Her evidence is that shortly after she reported for work on the switchboard, Mr. Shukler entered the switchboard room and angrily asked her if she had just been organizing for the union. She answered that she had. Mr. Shukler asked her if she had asked her lawyer about the propriety of recruiting and then reporting to work. He left, but a few minutes later returned and summoned her outside. In the hall they met Christine Smith, the Personnel Manager, and Mr. Shukler told Miss Smith to put down that Miss Hartery was being terminated for listening in on Mr. McGrath's calls. Mr. McGrath was the Duty Manager at the time. Miss Hartery denies handling any call from Mr. McGrath during her shift that day. The evidence of Miss Martino, another switchboard operator on duty at this time, was clearly confused as to the sequence of events that day, but her evidence did substantiate the initial exchange between Shukler and Hartery, and she described Mr. Shukler as "storming". In addition, Miss Martino testified that she spoke to her supervisor Eileen Sleightholm about the discharge afterwards, and that Mrs. Sleightholm commented that Miss Hartery was not fired "for the right reason".

25. The respondent's evidence with respect to this discharge came from Mr. Shukler and Mr. McGrath. It will be recalled that one of Intertec's security personnel, Mr. Perri, had resigned and commenced to organize at the Hotel on behalf of the applicant. Mr. Shukler testified that he began to have doubts about Mr. Perri because of the number of times he had to be chased off the premises, and so he requested Mr. McGrath to find out from the police whether Mr. Perri had a criminal record. His explanation for this was that if Mr. Perri did, that would give him more leeway in getting the police to act. Mr. Shukler testified that he was present in Mr. McGrath's office when Mr. McGrath made the telephone calls to the police. According to Mr. Shukler, Mr. McGrath picked up the telephone and said, "Linda, put me through to Division 23". Mr. McGrath then slammed the phone down, saying he had been cut off. He again picked up the receiver and said: "Linda, you cut me off'. After a pause, McGrath began a conversation with someone, but interrupted it to indicate to Shukler that he thought someone was listening in. Mr. Shukler told him to hang up. Seconds later Detective Lupinski of 23 Division rang back, and McGrath advised Shukler that Lupinski also thought someone was listening in. Shukler advised McGrath to hang up and call again so that he (Shukler) could check it out. Shukler then went to the switchboard room. He said that through the doorway he could observe the first operator with her hand over the mouthpiece, and heard her say: "Oh my God, he's calling Division 23 again". Shukler testified that he then entered the asked, "Who is Linda here"? When the first operator identified herself, Shukler said: "I remember you" and indicated he had seen her with the recruiters earlier that day. He then stated that she had been listening in on telephone calls and asked her to leave the room with him. Shukler testified that another operator said: "You don't have to say anything, you don't have to give them any information". Miss Hartery stated that she was going to get in touch with the union.

26. Mr. McGrath, as indicated, was the Deputy Manager at the time, and gave evidence in a somewhat discomforted state after working the night-shift. He confirmed that Mr. Shukler had asked him to telephone the police about Perri, and that he encountered difficulties in doing so, both in being cut off, and in hearing female voices on the line. Contrary to Mr. Shukler's evidence, however, he testified that when he asked for the call to be placed the second time, after being cut off, he heard someone on the line say: "Oh my God, he's calling the police again". He testified that Mr. Shukler entered his office at about that time, and he indicated to Shukler that someone was listening in. Shukler told him to hang up and call back, and at that point Shukler left his office. Mr. McGrath did confirm telling Shukler that Detective Lupinski as well had commented upon the problems with the line. Mr. McGrath had no more involvement in the matter.

27. The Linda H artery incident was followed by a February 6th memorandum from the Hotel's owner, Mr. Hodgson, to Mr. Elsayed expressing deep concern over the possibility of switchboard operators listening in on telephone calls. The memorandum suggests that a copy be shown to each operator, and includes the following paragraph:

I would ask you to meet with Mrs. E. Sleightholm, your switchboard supervisor, and her staff if possible and to again fully impress upon them the seriousness of this matter and the consequences should it ever happen.

The applicant complains about this as a further attempt to convey to employees that what happened to Linda Hartery as a result of her union activities could happen to them.

28. Prior to this memorandum, a second switchboard operator, Debbie Chevalier, was terminated. Miss Chevalier had been employed about 2 years, and had received no negative comments about her work. She testified that she arrived at work about an hour early on Sunday, February 3rd. The security guard made a fuss about her arriving that early, so she told him she had just come from bowling. On Monday, her supervisor, Eileen Sleightholm, came to her upset and trembling and said to her: "I can't tell you what was said, but watch yourself— they think you came in early yesterday to get signatures". On Tuesday Miss Chevalier was again approached by Mrs. Sleightholm, who said: "They still think it's you". Shortly thereafter, Mrs. Sleightholm was summoned to Mr. Shukler's office. When she returned, she was crying and called Miss Chevalier out of the switchboard room. She told Miss Chevalier: "I hate to do it; It's not my idea, but he told me I have to let you go immediately". Miss Chevalier then went to see Mr. Shukler, who said that there were complaints about her work. According to Miss Chevalier, Mr. Shukler refused to specify the complaints, and denied that it had anything to do with the union. He then added that it was not his idea anyway, rather that Eileen [Sleightholm] was not satisfied with her work. Mr. Shukler expressed his surprise when Miss Chevalier related to him what Mrs. Sleightholm had just said. Miss Chevalier further testified that she saw Mrs. Sleightholm several days after the discharge and began chatting informally with her. Mrs. Sleightholm indicated that it was "weird" working at the Hotel with all the security there then, and added: "You know you were fired because of the union".

29. Mr. Shukler did not testify about the discharge of Miss Chevalier, but rather Mr. Elsayed did, indicating to the Board that the decision to discharge her was his. He testified that a few months prior, the Chairman of the Board had complained to him about Miss Chevalier wandering around the Hotel, and not being at the switchboard when he needed her. Mr. Elsayed stated that her discharge was triggered by reports from security that she was seen at the Hotel after her shift on Friday, which "of course was against company policy". Miss Chevalier at the hearing denied returning to the Hotel after her shift, but subsequently advised the Board by letter that she recalled doing so, and offered to re-attend as a witness.

30. At the end of this same week, a maintenance cleaner, Adriana Colagiacomo was laid off by the respondent. She had been employed for just over a year and was the most junior of the cleaners. Miss Colagiacomo, it would appear, was not above writing love letters on the surface of Hotel desk drawers, nor "disappearing" into the washrooms for extended breaks. While this may evidence that Miss Colagiacomo was a less than model employee, the respondent did not appear to rely on such matters at the time she was let go. Rather, Mr. Lambrakos, the maintenance manager, testified that Miss Colagiacomo was laid off because business was slow and she was the employee with the least seniority. The evidence of Miss Colagiacomo is that the same morning that she was laid off, she had arrived at work by bus and was stopped by a union organizer at the bus-stop. She says she signed a union card at that point. She did not see anyone around from management, but testified that the bus-stop is located in front of the Hotel. She was advised of her layoff later that morning. Miss Colagiacomo had been "resting" in the washroom for over an hour that morning before Mr. Lambrakos was able to locate her. Miss Colagiacomo says that after she returned with Mr. Lambrakos to his office he asked her if she had signed a union card. She admitted that she had. In the same conversation she was advised of her layoff. Shortly after that discussion Mr. Lambrakos called her back to his office to tell her that her layoff had nothing to do with the union. Mr. Lambrakos' evidence is that it was Miss Colagiacomo who mentioned the union, and that he had no knowledge of her signing a card. He testified that when he advised her that a layoff was coming up and that she had to be laid off as the most junior person, she started to cry and said it was because she had signed with the union. Miss Colagiacomo had at the close of the hearings not yet been recalled.

31. The final discharge covered by these complaints occurred approximately a week later. The employee terminated was Litza Damianidis, a waitress in the coffee shop. She had been employed a short time only, and had in fact been terminated by Mr. Elsayed for her poor service once before. Her supervisor, Mrs. Tomlinson, on that occasion had persuaded Mr. Elsayed to give Mrs. Damianidis another chance. Mrs. Damianidis continued to have problems however, and Mrs. Tomlinson finally decided to fire her when she disobeyed the clear instructions of Mrs. Tomlinson and pocketed a "tip" which Mrs. Tomlinson had told her was meant to be applied to a customer's bill. Mrs. Damianidis appealed her discharge to the Personnel Manager, Christine Smith, who discussed it with Mrs. Tomlinson, but it was decided that the discharge must stand. Mrs. Damianidis did not appear at the hearing to testify on her own behalf, and there was no evidence of any union activity on her part.

32. In addition to the matters already reviewed, the applicant complains that the respondent was instrumental in the formation of a "Hotel Committee" for employees as a means of diverting support away from the union. The purpose of the Committee was to represent the employees in dealing with Hotel management. Considerable evidence was called to show that the principal figure, Mr. Morelli, an employee in the room-service department, was allowed to circulate freely to solicit signatures on the "petition" supporting the Hotel Committee, and that a meeting of some 100 employees was held by Mr. Morelli in one of the Hotel's ballrooms. The evidence does establish that at least one supervisor, Gina, (and possibly two others) was involved to an extent in promoting the petition, and that Mr. Lucas, the Bell Captain, urged members of his staff to attend the meeting. Mr. Elsayed testified that he made it clear to Mr. Morelli that no meeting could take place on Hotel premises and that he had no knowledge prior to the hearing that the meeting took place in the Hotel's ballroom. Mr. Lyall, of Intertec, and Mr. Shukler both testified, however, that they learned of the meeting shortly after it took place. Mr. Elsayed appears to have shown more than a passing interest in employee activity during this period, and the Board has difficulty accepting that he would not have been informed of the meeting by one of these other two gentlemen. In addition, Mr. Morelli himself was not called to give evidence. The Board has grave suspicions, therefore, over Mr. Elsayed's denials.

33. What conclusion is the Board to draw from the evidence pertaining to the various incidents of discharge and layoff, particularly in light of the respondent's conduct in general? The lawfulness of the respondent's security response will be discussed below. The very immediacy and extent of this response, however, is indicative of the respondent's pre­occupation with the applicant's organizing efforts during this period, and cannot be divorced from the comment attributed to the owner of the Hotel, Mr. Hodgson, that Miss Smith would be Personnel Manager "as long as the union didn't get in". Miss Smith was a totally credible witness, and the Board notes that she was not asked to deny her statement when she herself testified later in the proceedings. In addition, there are the statements attributed to the switchboard supervisor, Eileen Sleightholm, indicating that Miss Chevalier was fired for her union activity, and that Linda H artery was not fired "for the right reason". The Board waited throughout the proceedings for a denial to come forth from Mrs. Sleightholm, but Mrs. Sleightholm never was called as a witness.

34. Given the uncontradicted evidence pertaining to Mrs. Sleightholm, together with the patent flimsiness of the respondent's case against Miss Chevalier, the Board has no doubt that Miss Chevalier was fired for union activity, in violation of section 58 of the Act. Indeed, the Board cannot say enough about the effect the decision to contest a case like Miss Chevalier's, particularly through the respondent's chief witness, Mr. Elsayed, had upon the respondent's credibility in the remainder of the proceedings.

35. In the case of Linda Hartery, even accepting that Mr. McGrath was confused in his evidence and that Mr. Shukler did observe Miss Hartery with her hand over her mouthpiece saying "Oh my God, he's calling Division 23 again", the decision to terminate her immediately, without discussion, cannot be readily explained, when Mr. Shukler knew that the operator was being asked to place the call. Rather, Mr. Shukler's spontaneous reaction appears to be a carry-over from his earlier pique when he discovered Miss Hartery engaging in recruiting activity to reporting for work. In the circumstances, the Board is satisfied that Miss Hartery's union activities were at least a factor in her summary discharge. That, as the Board has said on numerous occasions, is sufficient to establish a violation of section 58. See, for example, R. v. Bushnell Communications (1974), 1974 CanLII 559 (ON CA), 47 D.L.R. (3d) 668 (Ont. C.A.). The Board does not, however, on the evidence find the memorandum of February 6th from Mr. Hodgson, expressing his concern over the possibility of wire-tapping, to be a violation of the Act.

36. The comments attributed to Miss Smith, and not denied, also colour the discharges

of the four members of the bell-stand, which Miss Smith identified as the source of the organizing. It is to be noted that the discharges of Walker, Kewley and Nichols all were allegedly triggered by complaints from customers, about which no details were given. This is a patently convenient ground for the respondent to adopt, since it can claim that to disclose any details of the complaint would have identified the customer to the grievors, and such claim cannot be said to be unreasonable. A natural suspicion arises, however, as one proceeds from one discharge to another in this case, not unlike the situation before the Board in ABC Day Nursery and Kindergarten Limited, [1980] OLRB Rep. April 391. In the circumstances of this case, the Board finds it was incumbent upon the respondent to satisfy the Board by affirmative evidence that the customer complaints did take place and (as always) that the complaints were the only factor in the grievors' discharge. This the respondent has failed to do. On the evidence the Board finds that Messrs. Walker, Kewley and Nichols were discharged for their union activity, in violation of section 58 of the Act.

37. The case of Mr. Clarke in more difficult. The Board has considerable doubt over the candour of Mr. Clarke in telling the Board that his appearance at work on the Saturday morning, virtually without sleep, was unrelated to his union activities, particularly when he chose to vacate the premises immediately prior to the time when business might be expected to pick up. The involvement of Mr. Walker, his fellow organizer, in the decision to leave the premises and not report for his scheduled shift scarcely lends authenticity to Mr. Clarke's testimony. It is to be noted that the protections under section 58 of The Labour Relations Act extend only to the lawful activities of a trade union and its supporters. See, for example, Durham College of Applied Arts and Technology, [1979] OLRB Rep. Nov. 1077. Mr. Clarke's presence on the premises at an unauthorized time, in the early hours of Saturday morning, for example, could in some circumstances be characterized as unlawful. The rule banning such presence after the completion of an employee's shift appears, however, to have been rarely enforced, if at all, prior to this time, and certainly not with the dedication and vigour exhibited after the applicant's campaign began. Having regard to the minimal impact which Mr. Clarke's conduct had on the respondent's operations and the fact that the decision to discharge was made before any discussion with Mr. Clarke, as well as the overall circumstances of this case, the Board is not satisfied that the penalty imposed on Mr. Clarke would have been discharge, had his "improper" activities not been connected with the union. The Board therefore finds that Mr. Clarke was discharged in violation of section 58 of the Act.

38. The discharge of Mr. Ragni must be viewed in the light of his layoff earlier in the evening. The evidence discloses that no clear decision had been made to lay off Mr. Ragni prior to Saturday, February 2nd, and that the respondent became aware of Mr. Ragni's organizing activities at least the day before. Mr. Ragni is then headed off when he reports for work on Saturday, before he can commence his scheduled shift, and escorted off the premises. In addition, the decision both to lay off and to terminate Mr. Ragni on this complaint. Given the surrounding circumstances, and the reverse onus created by section 79(4a), the failure to testify on the part of the individual who actually made the decision is in itself fatal. The Board finds that Mr. Ragni was both laid off and then terminated because of his union activity, in violation of section 58 of the Act.

39. With respect to the signed cards allegedly missing from Mr. Ragni's locker, the Board would have to be satisfied that the respondent did take the cards, before ordering it to return them, and the Board finds this allegation not to have been established. The treatment of the locker by Mr. Shukler in double-locking it and then moving it to the locked storage area is indicative of the paranoia of the respondent surrounding the applicant's organizing campaign, but the Board finds it unlikely that Mr. Shukler would have removed the two signed cards after so clearly tampering with the locker. On the balance of probabilities, therefore, the Board concludes that it is more likely that Mr. Ragni misplaced the cards in some other fashion, and that the cards were not left in the locker as Mr. Ragni believed. This aspect of the complaint therefore is dismissed.

40. The case of Adriana Colagiacomo is a difficult one. Miss Colagiacomo, unlike the other grievors, engaged in no overt union activity, and it is possible that her layoff on the last day of the week only coincidentally occurred on the day she signed a union card. In that event it is readily understandable that Miss Colagiacomo would think she was being laid off because she had signed, and blurt that out in the manner described by Mr. Lambrakos. On the other hand, it is the evidence of Miss Colagiacomo that it was Mr. Lambrakos who first raised the question of the union card, thus indicating that her activities at the bus-stop had been observed and that the timing of her layoff was more than mere coincidence. The Board has difficulty in choosing the evidence of one over the other. However, given the pattern of conduct otherwise established in these proceedings, together with the reverse onus provided by section 79(4a), the Board finds that the uncertainty must be resolved against the respondent. The Board therefore concludes that the layoff of Miss Colagiacomo, occurring when it did, was at least in part a reaction to her lawful union activity, and in violation of section 58 of the Act.

41. The final complaint is that of Litza Damianidis, the waitress discharged by Mrs. Tomlinson. The Board found no reason to doubt the testimony of either Mrs. Tomlinson or Miss Smith in this regard. The grievor appears to have played no part in the applicant's organizing campaign, and did not appear at the hearing in support of her complain. The Board finds on the evidence that the complaint of Mrs. Damianidis must be dismissed.

42. There are in addition charges filed by the respondent alleging that the applicant obtained membership evidence by harassment, intimidation, and misrepresentation. The last ground included both misrepresentation as to the nature of what was being signed, and as to the employment status of organizers such as Mr. Ragni and the former security officer, Mr. Perri.

43. Six employees gave evidence with respect to being constantly approached by union organizers when coming to or going from work. Each of the six had filed a note with management setting out their complaint. While a number of the employees indicated they had someone else (not in management) actually transcribe their words onto paper, they all insisted that the idea of writing a note was entirely their own, and that the words appearing in the note were also their own. Each denied as well having ever discussed the note with any other employee. This was the first time any of them had ever communicated their views to management in writing. Given the difficulty in writing that most of them attested to, this is not surprising. The English translation, provided by the respondent, of each of the notes is as follows:

"To Hotel Management:

I'm sick and tire to be approached mornings and nights by Union people. I don't want the union. You have to do something. Thank you.

TO THE HOTEL MANAGEMENT

I'm tired to be harassed after a working day from people wanting Union.

I don't want the union.

TO HOTEL MANAGEMENT

The undersigned Cecilia Angelucci would like to let you know that I’m sick and tired from what his happening here. Every day when I leave work I meet these people who keeps harassing me, even in the morning when I come to work. I want to be left alone in peace, I don't want to be disturbed. Try to do something.

To Hotel Management:

It's a real problem, every morning when I come to work I'm approached by Union people. I don't want the Union. You have to do something. Thank you.

TO SKYLINE MANAGEMENT

Every morning and night coming and leaving work I'm harassed by Union people. I don't want the Union. Thank you.

I have repeatedly been harassed [sic] by the union members both coming

& going from work on several occasions. They have repeatedly phone my

home as well. This has involved both myself and my children. I do not

like the idea of them having my private phone number."

The Board has no reason to disbelieve that these employees were being repeatedly approached by the organizers. Indeed, by the end of his testimony, Mr. Ragni admitted as much. Mr. Ragni explained his own persistence on the basis that he often found that even though an employee would tell him not to talk to him, if he kept after the employee (including getting on the same bus) and eventually was able to speak to that employee with no one else around, the employee would show more interest. He found, on the buses, for example, that he might approach an employee when he thought they were alone, but the employee would say: "Not now, there's another employee two rows up

45. In terms of what is credible in this case, no single aspect can be viewed entirely in isolation from the full circumstances set out earlier by the Board. Given the kind of security response initiated by the respondent, together with the number of union-related firings taking place in one week, a sense of anxiety and mistrust amongst the employees is not hard to believe, nor is the reluctance of many to openly and freely participate in discussions with a union organizer. The need for persistence on the part of the union organizers was therefore, in large measure, a reflection of the atmosphere which the respondent deliberately sought to create. Had that persistence reached unlawful proportions, such as, for example, actual physical interference, there are matters which can be, and could have been, reported to the police. The Board does not find on the evidence that the conduct of the union organizers here reached such proportions. Each of the employees who testified agreed that the persistence of the organizers was not such as to cause them to do anything they did not want to do. Indeed, while the Board is prepared to believe that complaints were made, given the curious similarity in the notes, the Board is skeptical that the conduct was even such as to cause the employees, without management involvement, to go as far as writing their own notes.

46. The misrepresentation evidence came primarily from Mrs. Pavlovska and Mrs. Castaneda. Mrs. Pavlovska testified that she signed the union card because she thought she was buying a lottery ticket. She testified that Mr. Ragni said: "Sign down here and you'll get more money". Initially she stated flatly that Mr. Ragni never used the words lottery ticket. When asked on cross-examination how she had come to the conclusion she did, she became markedly evasive, and testified that Mr. Ragni said it was a lottery ticket.

47. Mrs. Castaneda said that she saw Mr. Ragni and others collecting signatures outside the Hotel when Mr. Perri (whom she did not know was no longer employed as a security officer), came over and said: "You know me. We need the signatures to protect the night girls". So she signed. She then testified that she became confused and spoke to her supervisor, who gave her time off to speak to the manager. It was the manager who told her for the first time that what she signed was a union card. This took place on Monday, February 4th. Mrs. Castaneda worked both the Saturday and Sunday before (when both the applicant's campaign and the respondent's reactions "broke") but testified that the first she knew of the union was from the manager. When asked on cross-examination, she could not explain in any way that was consistent why it was she decided to take her problem to management before finding out it was the union that was involved.

48. The Board is not satisfied on their evidence that either Mrs. Pavlovska or Mrs. Castaneda were misled as to what they were signing. Given the respondent's own conduct and the series of firings, the Board finds it more likely that these employees knew what they were signing, but afterwards began to fear for their jobs, and went to management to explain away their actions. The Board notes as well that no one (including Mrs. Castaneda) who testi­fied that they thought either Mr. Ragni or Mr. Perri were still employed could explain how it would make a difference to them if they were not. In light of the respondent's unequivocal response to the applicant's campaign from the beginning, the Board would be hard pressed to find that anyone could have been mistakenly viewed by employees as soliciting union signatures with the authority and support of the respondent.

49. It is the evidence of Linnett Demetrius which causes the Board the most concern. Her note says:

"To Mr. M. Elsayed -

On leaving work last evening around 7 P.M. I was harassed [sic] by 3 men of the Union at the Bus Stop. One of the men threatened me and made an issue they knew me well and said when the Union came in I wouldn't have any chance to keep my job. I had my 2 children with me and they were quite scared. He pointed his finger at me and was quite determined I would loose [sic] my job."

The note, however, was written by Mrs. Demetrius' supervisor, and Mrs. Demetrius' own testimony was considerably different. She says she told the organizers that she had nothing to say to them, and one of them said: "I know you, and when we get inside there, you have no support". She told her supervisor that she thought from this he meant that she would lose her job. Mrs. Demetrius did not sign a card.

50. The broad disparity between the note and Mrs. Demetrius' oral evidence leaves the Board in doubt as to what it was that was said to Mrs. Demetrius. But even accepting Mrs. Demetrius' oral version, the conversation, while somewhat menacing, clearly falls short of supporting the conclusion that Mrs. Demetrius claims to have taken from it. In the circumstances, the Board is persuaded that this single statement as reported by Mrs. Demetrius is insufficient to cast doubt on the membership evidence filed by the applicant. (See also Green Giant of Canada Ltd., [1973] OLRB Rep. June 376.)

51. A final point arising out of the respondent's evidence is the allegation that one of the employee-witnesses, Joyce Barclay, was threatened by Mr. Ragni after her first appearance at the Board. Ms. Barclay's evidence is that she was walking on the sidewalk beside the Hotel and observed Mr. Ragni and another man (Mr. Compton) organizing for the union. Mr. Compton began to approach her, but Mr. Ragni rushed over and told him not to because she was "one of those who go to Court to lie on him". A few minutes later Ms. Barclay came out of the bank and was standing on the sidewalk waiting for a ride when Mr. Ragni came over and said: "Go in there and tell them who is out there signing and I'll see what I get".

52. Mr. Ragni agrees that he said something close to the initial statement, as does Mr. Compton. He denies, however, approaching Ms. Barclay again. Mr. Compton supported Mr. Ragni in this regard, but given the unreasonableness of Mr. Compton denying that Ms. Barclay could have overheard the first comment, or that she could have gone in and out of the bank without him seeing her while he was busy soliciting other employees, his evidence is of limited value.

53. The Board concludes, based on Ms. Barclay's testimony, that a second incident did occur. Her evidence in general on the two days that she testified does, however, raise a question about both her perception and recollection of events, and the Board is not certain that it has before it an accurate account of what was said, in order to evaluate it. The Board will characterize the incident as one of indiscretion on the part of Mr. Ragni. While a matter of concern, the Board does not, however, find this indiscretion (and lack of candour) on the part of Mr. Ragni sufficient to alter the inferences which the Board concludes, on the prepon­derance of evidence, it must otherwise draw against the respondent on the issues material to these proceedings. This is not, in fact, the first occasion in the proceedings where the Board detected in the testimony of Mr. Ragni a lack of total candour. As indicated, the same can be said for Mr. Clarke, and to the extent he sought to support Mr. Clarke's testimony, Mr. Walker as well. In addition, the applicant's supporters were markedly youthful, and cannot be said to have conducted themselves with the utmost discretion at all times, for example, in persistently attempting to enter the Hotel premises, in almost game-like fashion, after being requested several times not to do so. There is no doubt that such conduct contributed to an ultimate escalation in the situation surrounding the applicant's campaign. But even apart from the legality of the respondent's "ban", it must be recalled that, with the exception of Mr. Clarke, all of the terminations (which, for Mr. Ragni, was for material purposes his layoff) preceded such indiscretions, as did, on the respondent's own evidence, the great bulk of the Hotel's security response.

54. The Board turns now to a more detailed consideration of the various security arrangements at issue in this case: the extra staff assigned to patrol inside the Hotel, the sign-in procedure, the cars outside the Hotel. The right of an owner to take steps for the adequate security and control of his premises is, of course, a prima facie incident of ownership, and not one to be lightly interfered with by a labour relations tribunal. On the other hand, none of the measures complained of by the applicant were in effect prior to the emergence of the applicant's campaign, and, apart from a less than credible claim on the part of Mr. Elsayed, the respondent can scarcely argue that the measures adopted were inherently necessary to the normal operation of the hotel facility. The respondent, in fact, does not argue that. Rather, the justification primarily put forward is that the security measures were simply a response to what the respondent considered to be improper organizing activities by the applicant and its agents. The respondent, in other words, admits (as, on the evidence, it must) that all of the measures in dispute were designed in one way or another to restrict the organizing activities of the applicant, as they did. This does not necessarily make the respondent's conduct unlawful. What it does, rather, is bring squarely into issue the interpretation which the Board must give to section 56 of The Labour Relations Act.

55. Section 56 reads as follows:

No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or inter­fere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

The striking aspect of this section is that on its face it makes no mention of anti-union motive or purpose. It simply uses the word "interfere", which, in normal parlance, could be taken to connote either intentional or unintentional conduct. As the Board commented in Westinghouse, [1980] OLRB Rep. April 577, at paragraph 54:

.... .section 56 of the Act can be interpreted as prohibiting any employer action which has the effect of interfering with the representation of employees by a trade union regardless of whether or not an anti-union motive exists."

It would not matter, in that event, whether the employer could satisfy the Board of a legitimate business purpose for its conduct. But the Board has always had regard to industrial relations reality, and to the scheme of the Act as a whole, and has never interpreted the section in this manner. To do so would of course render meaningless the other specific provisions of the Act, such as section 58, which clearly require the finding of an anti-union motive. Any discharge of a union organizer, or perhaps of any employee during a campaign, for example, could be litigated successfully by a trade union under section 56, whether or not an anti-union motive could be shown under section 58. It is impossible to contemplate that section 56 creates that kind of an unfair labour practice. As the Board commented in Ontario Banknote Ltd., (Board File No. 0590-80-U unreported):

5. The union's representatives argued, notwithstanding the clear evidence [of no anti-union motive] before the Board, that a discharge during a union campaign can have a chilling effect on the ability to organize. That is no doubt true. Other innocent factors, such as lay-offs for good business reasons for a financial downturn might also have a negative impact on the fortunes of a union. As real as those concerns may be to a union, they are not matters which the provisions of the Act are designed to protect unions or employees against. They should, therefore, not be the basis of a complaint to this Board (National Automatic Vending Co. Ltd., 63 CLLC ¶16,278 at p. 1162).

See also Walker Brothers Quarries Limited, [1980] OLRB Rep. July 1107, at paragraph 16. In the absence of an anti-union motive, in other words, it is not a violation of the section if the employer's conduct simply affects the trade union in pursuit of an unrelated business purpose. As the Board said in A.A.S. Communications Ltd., [1976] OLRB Rep. Dec. 751, in commenting on this purposive meaning of the word "interfere":

3 1. The essential element in any complaint under section 56 is employer interference with a trade union. A distinction must be made, however, between employer conduct that actually interferes with a trade union, and employer conduct that only incidentally affects a trade union. (emphasis added)

As has often been noted, however, the trade union will not in every case be required to prove by affirmative evidence the existence of an anti-union motive, this is so because the effect of certain types of conduct is so clearly foreseeable that an employer may be presumed to have intended the consequences of his acts: A.A.S. Communications, supra; G. W Martin Lumber, [1980] OLRB Rep. May 737; Bank Canadian National, [1980] 1 Can. LRBR 470; Radio Officers' Union v. NLRB, (1954) 33 LRRM 2417. Once such conduct has been established, then as a practical matter (and whether or not section 79(4a) of the Act applies to the situation) the onus is upon the employer to come forward with a credible business purpose to justify the conduct (ef. NLRB v. Great Dane Trailers, (1967) 65 LRRM 2465). It is up to the Board then, in all the circumstances, to decide what the motive of the employer really was.

57. In the present case it is clear that all of the new security measures and controls were a response to the organizing activity of the applicant. According to Mr. Lyall, the instructions given to Intertec were to lead management "to any abnormal employee movements on the premises. Mr. Elsayed claimed that the purpose of the internal security was to prevent employees from being solicited while working. There was, however, evidence of no more than isolated incidents of such occurences (none involving outside organizers), and no apparent reason why attempts were not first made to control this through the usual means of instructions to employees and monitoring by supervisors. The policy of Mr. Elsayed, in fact, seemed to be aimed at banning organizing altogether from the premises, whether on an employee's work-time or not. If this was the case, the respondent misconceived its legal rights in this regard. As the Board stated in Consolidated Fastftate Limited, [1980] OLRB Rep. April 418, at paragraph 15:

In assessing an allegedly illegal restriction on trade union activity, the Board begins with the premise that "working time is for work", and that time outside of working hours is an employee's time, to use as he wishes, without unreasonable restraint, even though he may be on company property.

58. The purpose put forward in the evidence for the external security was two-fold. The

evidence of the security officers made it clear that one of its purposes was to ensure that no one connected with the applicant's campaign, whether a professional organizer or a recently-discharged employee, entered the premises for any purpose. It is extremely difficult, however, to discern the business purpose behind such discrimination, bearing in mind that the facility which the respondent operates, unlike a production site, is open to virtually every other member of the public. There is no evidence from the respondent, for example, that Mr. Clarke and the other union organizers, when drinking at Diamond Lil's, were attempting to solicit members or otherwise distracting employees while the employees were supposed to be working. The total ban on anyone connected with the applicant appears to have been simply part of the respondent's resolve to "outlaw" union activity on its own premises, and to brand as outcasts those persons identified as being a part of the applicant's campaign.

59. The other purpose for the outside security, put forward by Mr. Elsayed himself, was to prevent harassment and provide an escort service to the bus-stop for employees who requested it. There was, however, no evidence that employees were ever made aware that that was its purpose, or ever made use of it in that way. In light of this, together with the placement of the Intertec car on the loading ramp immediately overlooking the employees' entrance, and the immediate intercession of a security officer if an organizer set foot on company property, the Board concludes that one of the purposes of the external patrols was to make patent to employees the closeness with which their movements were being monitored, in order to further discourage them from exercising their rights under the Act. The Board finds on the facts of this case, that all of the security measures adopted by the respondent in response to the applicant's organizing efforts were a violation of section 56 of the Act, and in overall impact, of section 61 as well.

60. Taking into account the sudden initiation of a sign-in procedure and religious enforcement of the "thirty-minute" rule, the ringing of the premises (inside and out) with security, the systematic termination of virtually everyone identified as an activist in the applicant's campaign (and even, it would appear, one person simply observed signing a card), and the various uncontradicted admissions of management, the Board is left with no doubt that a decision was made, for whatever reason, at the very highest levels of the respondent's organizations to squelch the applicant's campaign at all costs before it got off the ground. It would appear that the respondent, in large measure, has succeeded.

61. The applicant has requested, as the only remedy now capable of remedying the wrong done to it by the respondent, a certification under section 7a of the Act. That section reads:

Where an employer or employers' organization contravenes this Act so that the true wishes of the employees of the employer or of a member of the employers' organization are not likely to be ascertained, and, in the opinion of the Board, a trade union has membership support adequate for the purposes of collective bargaining in a bargaining unit found by the Board pursuant to section 6 to be appropriate for collective bargaining, the Board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit.

There is no doubt that the respondent has contravened the Act, and if ever there was a case where the true wishes of the employees are not likely to be ascertained by the conventional means now available, this appears to be it. But does the applicant have "membership support adequate for the purposes of collective bargaining"? This condition was added in the 1975 amendments of The Labour Relations Act (S.O. 1975, c. 76). To gain some insight into its meaning, reference must be made to its predecessor section, which read:

7.-(4) If the Board is satisfied that more than 50 per cent of the employees in the bargaining unit are members of the trade union and that the true wishes of the employees are not likely to be disclosed by a representation vote, the Board may certify the trade union as bargaining agent without taking a representation vote.

In making this comparison, it becomes clear that the phrase "membership support adequate for collective bargaining" is not simply a reference to majority support. Were this is the case, it would have made no sense to eliminate the explicit requirement for majority support already contained in section 7(4). Even more striking, however, is the removal of the words "by a representation vote" from section 7(4). By doing so, the Legislature appears to have clearly contemplated the application of the new section 7a, in appropriate cases, to situations where the applicant's membership support fell even below the minimum level required in the statute for entitlement to a representation vote. (See also Lorain Products, [1977] OLRB Rep. Nov. 734.) The section could now apply, in other words, to situations where the employer's response is so massive and so early as to prevent a trade union from ever attaining the level of support needed for a vote. This, as the Board has found, is precisely the case here. Had it not been for the unlawful interference of the respondent, the applicant might well have garnered the 35 per cent support it initially sought for the taking of a pre-hearing vote. As it is, the applicant can demonstrate the membership support of only 30% of the unit. Is 30% sufficient in this case? support of only 30% of the unit. Is 30% sufficient in this case?

62. The competing policy considerations which underlie a section such as section 7a are aptly set out by the British Columbia Labour Board in commenting on similar changes made to their own statute, in International Brotherhood of Boilermakers, Lodge 359 and Forano Limited[1974] 1 Can LRBR 13, at page 20:

... Certification without a vote…creates a real disincentive to the use of [intimidatory] kinds of tactics. It does so by depriving the offender of the fruits of its unlawful conduct.... However, that is just part of the case for this remedy, because the party primarily affected by the certificate is the employees. We can assume that the Legislature did not want to visit the sins of the employer or the union on the innocent employees, who, after all, are supposed to be the beneficiaries of this freedom of choice about collective bargaining. Accordingly, the remedy is to be used where one cannot feasibly determine the true wishes of the employees through the normal means... I think everyone is aware of the risks involved in that kind of certification. In some cases, the employees may have foisted upon them a bargaining representative which they really don't want. Undoubtedly, the remedy must be carefully used...

As the above passage underscores, the true wishes of the employees are always the Board's primary concern, and the remedy is not meant to be punitive. As well, where the support is not there, the Board is scarcely placing the trade union in an enviable position by sending it off with a certificate. On the other hand, the Board must not hesitate to consider the provisions of section 7a when an employer's own conduct seriously impairs the Board's ability to ascertain with more certainty what the wishes of the employees are. As the B.C. Board went on to say in Forano Limited:

the Board must not be afraid to use it when it appears appropriate. The Legislature conferred it for the very good reason that there is another equally serious risk to employee freedom. The majority in a unit may really want collective bargaining but have been intimidated from choosing it openly. The only way they will get it is for the Board to certify the union...

63. These policy considerations are clearly reflected in our own section 7a. The "bright line" test fixing a minimum level of support needed for certification is gone, and an employer who intervenes unlawfully takes his chances. On the other hand the Legislature has added the eminently practical caveat that the Board not certify unless the applicant trade union, in the opinion of the Board, has membership support adequate for the purposes of collective bargaining. What this will mean in terms of percentages must vary with the facts of each case, and no single catalogue of criteria can be laid down (see Viceroy Construction Ltd., [1977] OLRB Rep. Sept. 562). It clearly will involve the Board in some measure of speculation. The duty of the Board to make this assessment only arises where the employer has intentionally destroyed the more reliable and conventional means of ascertaining employee wishes — and such speculation must be undertaken with care.

64. Having regard to the severity of the applicant's conduct in this case, and the early stage at which the respondent intervened, the Board is impressed by the fact that the applicant was still able to demonstrate, by signed cards, the commitment of 30 per cent of the unit. This to the Board suggests the strength of that commitment, and a substantial and workable "core~~ from which the applicant can muster additional support, once the opportunity for free collective bargaining has been put in place. There is, in addition, no evidence in the present case to suggest that the applicant's campaign had been anywhere close to being "spent" at the point that the respondent began its massive interference. Any inference, in fact, is to the contrary. In all of the circumstances of this particular case, the Board is of the opinion that the 30 per cent membership support demonstrated by the applicant constitutes "membership support adequate for the purposes of collective bargaining".

65. The Board therefore has discretion whether or not to certify the applicant in this case. The applicant argues that, because of the time it was forced to spend in litigating all of the section 79 complaints, no other remedy is capable of placing it in the position it would have been in had the respondent not deliberately intervened to chill its campaign. The Board finds this argument to be persuasive. Even the most massive of access orders would not likely overcome the chilling effect of seven months of hearings on any momentum the applicant may have had. The alternative remedy assumes as well that the true wishes of employees could now be ascertained through the medium of card solicitation, and the Board, as noted, does not consider that this is the case. The pre-conditions of section 7a having been met, the Board finds that the respondent, by its deliberate conduct, has left the Board with no reasonable alternative but to exercise its discretion to grant a certificate to the applicant.

66. The Board therefore certifies the applicant, pursuant to the provisions of section 7a of the Act, as bargaining agent for all employees of the respondent at the Skyline Hotel, Dixon Road, Etobicoke, save and except supervisors, persons above the rank of supervisor, office and sales staff, accounting staff, security staff, front desk staff, persons regularly employed for not more than 24 hours per week, students employed during the school vacation period and employees covered under subsisting collective agreements, being a unit which the Board finds to be appropriate for collective bargaining.

67. As well, the respondent appears to have done everything in its power to create amongst its employees the impression that the activities of the applicant, and employees' participation in those activities, are illegitimate forms of conduct. The respondent therefore is directed to grant to the applicant the same legitimacy the Board considers was granted to the Hotel Committee by permitting the applicant, without delay, to use one of the respondent's ballrooms, at no charge, for the purpose of convening meetings to address the employees in the unit. The meetings shall be two in number and scheduled by the applicant so that each employee in the unit has the opportunity at a non-working time to attend one of them. Each of the meetings shall not exceed three hours in length.

68. The respondent is also directed to sign and post a notice in the form attached as Appendix "A" in at least three conspicuous areas reserved for employees only. The notices are to remain posted for a period of sixty consecutive working days. The respondent is further directed to permit a representative of the applicant access to the same three areas for the purpose of posting notices of any meetings of employees to be held in connection with negotiations for a first collective agreement.

69. Finally, the respondent is directed to offer to reinstate forthwith Deborah Chevalier, Linda Hartery, Mark Clarke, Rick Walker, Frank Ragni, Randy Nichols and Adriana Colagiacomo, and to compensate each of them, together with Greg Kewley, for any loss of earnings suffered as a result of their unlawful terminations, with interest payable in accordance with the formula set out in Hallowell House, [1980] OLRB Rep. Jan. 35.

70. The Board will remain seized with this matter in the event a dispute over the implementation of its order.

DECISION OF BOARD MEMBER F. W. MURRAY:

1. 1 dissent.

2. While I agree with the majority regarding the unlawfulness of the terminations and

the company's security responses, it is the granting of a certificate under section 7a with which

I disagree.

3. While the conduct of the respondent cannot be defended, the majority's concern is clearly with the ability of the individual employees to now express their true wishes by signing cards. It seems to me unfortunate that the Board does not have proper authority to order the taking of a representation vote. This now does not appear to be within the Board's power under the present legislation.

4. Since the option is not, however, available to provide the Board with clear proof as to the true wishes of the employees, I would not have gone so far as to certify the applicant in the present case where the only certain membership support the union has is the 30 per cent demonstrated by the signed cards submitted at the time of the making of the application.

5. 1 would not have concluded that this 30 per cent satisfies those provisions of section 7a dealing with membership support adequate for the purpose of collective bargaining. Accordingly, I would have attempted to redress the wrongs of the employer in some other way.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

We have posted this notice in compliance with an Order of The Ontario Labour Relations Board, issued after a series of hearings arising out of the efforts of Local 299, of the Hotel and Club Employees' Union to become the Collective Bargaining Agent for our employees. The Ontario Labour Relations Board found that we violated The Labour Relations Act by interfering with the rights of our employees to select a bargaining agent of their choice.

The Act gives all employees these rights:

To organize themselves,

To fore, join and participate in the lawful activities of a trade union,

To act together for collective bargaining,

To refuse to do any and all of these things, if they wish.

We assure all of our employees that,

WE WILL NOT do anything to interfere with these lawful rights that all employees enjoy, WE WILL NOT discriminate against any employees for participating in the lawful activities of the trade union, or for engaging in free collective bargaining with us through Local 299, WE WILL offer to reinstate the following persons:

DEBORAH CHEVALIER, LINDA HARTERY, MARK CLARKE, HICK WALKER, FRANK RAGNI, RANDY NICHOLS AND ADRIANA COLAGIACOMO.

We SHALL pay these seven employees as well as GREG KEWLEY for any earnings they lost as a result of our discrimination against them, plus interest.

WE WILL bargain in good faith with Local 299 as the duly certified collective bargaining representative of our employees in the bargaining unit described below and sake every reasonable effort to make a collective agreement.

The bargaining unit is,

All employees of Skyline Hotels Limited, Dixon 19usd, Etobicoke, save and except supervisors, persons above the rank of supervisor, office and sales staff, accounting staff, security staff, front desk staff, persons regularly employed for not sore than 24 hours per week, students employed during the school vacation period arnd employees covered under subsisting collective agreements.

SKYLINE HOTELS LIMITED

Per:

General Manager

Dated, December 30, 1980

This is an official notice of the Board and must not be removed or defaced.

This notice must remain posted for 60 consecutive working days.