Canadian Hotel and Service Workers Union v. Romzap Ltd., 1995 CanLII 10034

[1995] OLRB Rep. December 1475

0868-95-R Canadian Hotel and Service Workers Union, Applicant v. Romzap Ltd. c.o.b. as Sheraton Fallsview Hotel & Conference Centre, Responding Party

BEFORE: Dale L. Hewat, Vice-Chair.

APPEARANCES: L. Steinberg and J. Ketelaars for the applicant; W.M.A. Amadio, I. Wolfe and T. Zappitelli for the responding party.

DECISION OF THE BOARD; December 19, 1995

1. This is an application for certification in which the applicant (or "Union") has requested relief pursuant to section 9.2 of the Labour Relations Act, R.S.O. 1990 c.L.2, as amended (the "Act"). On October 3, 1995 I issued a "bottom-line" decision in this matter in which I ordered certification pursuant to the provisions of section 9.2 of the Act. Below are my reasons for the decision. Section 9.2 provides as follows:

9.2 If the Board considers that the true wishes of the employees of an employer or of a member of an employers' organization respecting representation by a trade union are not likely to be ascertained because the employer, employers' organization or a person acting on behalf of either has contravened this Act, 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.

2. For ease of reference the responding party will be referred to as the "Sheraton"/”Hotel" or the "Employer".

Procedural Matter - Notice of Constitutional Question

3. During the course of the hearing, on July 6, 1995, I ruled on the question of whether the Sheraton could raise a constitutional challenge after the completion of the Union's case. The hearing of this matter commenced on June 26, 1995. On July 4, 1995 the Union's evidence had been completed. On July 5, 1995, the Sheraton served a Notice of Constitutional Question upon the Union and upon the Attorney General of Ontario in which it stated that "it intends to question the constitutional validity of section 9.2..." This issue had not been previously raised by the Shera­ton in its response to the application for certification, filed on June 1,1995.

4. Counsel for the Union argued that the Board should not permit the Sheraton to raise the constitutional question, given the stage of proceedings. He submitted that the Union was pre­judiced because .the issue was being raised after the completion of its case. Had the constitutional issue been pleaded initially, counsel asserted, the order of proceedings and the nature of the evi­dence would have been different. Specifically, counsel submitted that evidence would have been required or entertained pertaining to section 1 of the Charter of Rights and Freedoms, and that the Charter issue would have been considered first. The case on the merits might not have gone for­ward. Counsel also argued that insufficient notice had been given to the Attorney General of Ontario, as required by the Courts of Justice Act.

5. Counsel for the Sheraton argued that it had the right to raise the constitutional question at any time during the proceedings. He disputed that there was any prejudice to the applicant. Counsel also asserted that sufficient notice had been provided.

6. I ruled that I would not allow the Sheraton to challenge the constitutional validity of section 9.2, given the late stage at which it had been raised. To do so would result in prejudice to the Union, which had just completed its case. Further, the Notice served on the Attorney General was untimely in that it was not served as required by section 109 of the Courts of Justice Act, R.S.O. 1990, c.c.43 as amended by S.O. 1994 c.12, s.43. Specifically, the Courts of Justice Act, in section 109(2.2), requires that a Notice of Constitutional Question must be served on the Attorney General as soon as the circumstances regarding it become known, and in any event, at least fifteen days before the day on which the question is to be argued, unless the court orders otherwise. Under section 109(6), the provisions in section 109 apply to proceedings before boards and tribu­nals. Fifteen days notice was not in fact provided. In these circumstances, I was not prepared to entertain the constitutional question.

Introduction

7. The Sheraton operates a hotel and conference centre in Niagara Falls, Ontario. The Sheraton is owned by Romzap Ltd. which holds a franchise agreement with the Sheraton Hotel chain. Given the seasonal nature of the tourist industry in Niagara Falls, the Sheraton's business fluctuates widely during the year. The Hotel typically runs at full capacity between May and Octo­ber, and experiences a 70-80 percent vacancy rate between November and April. As a result, lay­offs are common during the slow season. The current application represents the fifth union orga­nizing effort at the Sheraton since 1990.

8. This Union's organizing campaign began on or about April 1,1995. The Union asserts that its organizing drive was very successful during April, 1995, but came to a virtual halt in mid-May 1995 as a direct result of meetings held with staff by the President and Director of Operations, Mr. Tony Zappitelli, a poster campaign sanctioned by the Employer, the discipline, harassment and attempt to isolate the key Union organizer, Mr. Bill Wilson, and the circulation of an employer sanctioned petition. During the course of the hearing, the Union advised the Board that the Employer contravened section 82 of the Act based on an allegation that Mr. Zappitelli intimi­dated and coerced Karen Nicol, one of the the Union's witnesses. The Union asserts that each of the Employer's actions described above constitutes a violation of the Act sufficient to result in sat­isfying the tests in section 9.2 to cause automatic certification.

9. Much of the evidence regarding the meeting and actions taken by the Employer was dis­puted. Twenty-one witnesses testified at the hearing. I have carefully considered the evidence of all of the witnesses. Set out below are my factual findings and the legal conclusions with respect to each of the allegations. In making my findings of fact, I have assessed the credibility of witnesses according to the usual criteria including their ability to resist the tug of self-interest in giving their testimony, their demeanour and what is reasonably probable in the circumstances.

10. During closing submissions, counsel for the Sheraton remarked that some of the Union's allegations pertain to events which occurred after the application date. Accordingly he suggested such allegations, even if provable, cannot form the basis for proving that the employees true wishes are unascertainable since the membership evidence had already been submitted to the Board. I have determined that the actions of the Employer on or after the certification application date have been considered as they are relevant with respect to determining whether the true wishes of employees are ascertainable with or without a vote. As well, the actions of the Employer post June 1,1995 are relevant to examining the conduct in its entirety and in order to assess the initial allegations of the Union. Furthermore, despite the fact that the Employer was aware of the Union's organizing campaign it did not have notice of the application for certification until June 5, 1995. It should also be noted that the pleadings in this case were amended by both parties before the hearing commenced which resulted in an expansion of the 9.2 allegations to include events occurring after the application for certification. All of the evidence pertaining to conduct occurring on or after June 1, 1995 was led and completed without objection of the Sheraton concerning its relevance to the tests in section 9.2. It was only in closing submissions that counsel for the Sheraton objected to the Board's consideration of the evidence regarding events occurring after June 1, 1995. For these reasons noted, I have determined that the events occurring after the application for certification date are relevant to my determination in this case.

Findings of Fact

(i) The Union's Organizing Campaign

11. Jeff Ketelaars, a business agent with the Union, testified about the organizing drive and how it was affected, in the Union's view, by the various actions of the Employer. Based on Mr. Ketelaars testimony, which was uncontradicted, I find that the Union was contacted in mid-March, 1995 by a former employee of the Sheraton who indicated that the employees were interested in unionization. The Union commenced its organizing campaign on April 1, 1995. According to Mr. Ketelaars, the Union did not seek assistance of inside organizers at the outset of the campaign because of a belief that, in previous organizing drives,the Employer had taken disciplinary action against employees. As result of information that the employees were fearful of being associated with the Union by their Employer, it was decided to attend privately at employees' homes to speak to them about the Union. At the beginning of the campaign, Mr. Ketelaars was provided with the names of approximately 45 employees by a Sheraton staff member. In April 1995, a few employees approached the Union and indicated their interest in assisting with the organizing drive. Mr. Wil­son, a houseman in the housekeeping department, was one of the employees who acted as an inter­nal organizer from mid-April until the application for certification.

12. Throughout April, 1995, the Union collected membership cards, obtaining them from approximately 30 per cent of the potential bargaining unit of 261 employees. The campaign contin­ued into May, 1995, but on May 12, 1995, following a meeting held in the Sheraton's housekeeping department by Mr. Zappitelli, Mr. Ketelaars received telephone calls from four employees requesting that their membership cards be returned.

13. The Union collected a total of 79 membership cards. It was Mr. Ketelaars belief that, after the May 12, 1995 meeting, the employees were terrified Mr. Zappitelli would discover their interest in joining the Union, and as a result, the Union was unable to successfully continue in its campaign for membership. He also received a number of calls from employees requesting their Union cards back. Two membership cards were, in fact, returned. In terms of membership activity, after the May 12, 1995 meeting, the Union collected four cards, two on May 14, 1995 and two on May 25, 1995. The two membership cards signed on May 14, 1995 were signed by employees who had not attended the May 12, 1995 meeting. The application for certification was filed on June 1, 1995.

(ii) May 12, 1995 Housekeeping Meeting

14. In early May 1995, Mr. Zappitelli received complaints from some employees from vari­ous departments concerning the Union's organizing activity. The complaints, themselves were not before me in evidence for the purpose of establishing unfair labour practices on the part of the Union, but instead were relied on by the Sheraton to explain the actions Mr. Zappitelli took in response to such complaints. Generally, the complaints related to concerns that Union organizers invaded employees' privacy by gaining access to private homes and that organizers were making unrealistic wage promises. The complaints were brought forth by employees from various depart­ments at the Hotel, but not primarily from the housekeeping department. As a response to the complaints received, Mr. Zappitelli met with all scheduled housekeeping staff, at 8:30 a.m. on May 12, 1995. The employees were not advised, in advance, of the purpose of the meeting, nor, once they had arrived, were they offered the option to leave the meeting. The meeting lasted approxi­mately 30 minutes. It was an unusual meeting because it was run by Mr. Zappitelli, and because it was addressed to all housekeeping staff. Normally, Mr. Zappitelli makes only brief appearances at staff meetings to report on hotel business and such meetings usually do not include housemen or laundry staff.

15. I have also determined that this meeting was deliberately directed at the housekeeping staff because most of the union activity was occurring in that department and because two of the internal organizers Mr. Wilson and Ms. Wiley worked in that department. There was inconsistency in Mr. Zappitelli's evidence about when he became aware of the Union's organizing drive. Initially Mr. Zappitelli stated that he did not know about the Union's campaign until early May, 1995. However, in cross-examination, he admitted that he was notified about the campaign on April 5, 1995. It is apparent that the housekeeping department was treated differently than other depart­ments since the housekeeping group was personally addressed by Mr. Zappitelli not only in the May 12, 1995 meeting, but also, in a subsequent meeting on June 2, 1995. In these circumstances, Mr. Zappitelli's explanation of scheduling difficulties for not meeting, to the same extent, with other departments does not seem plausible. The special attention directed to the housekeeping staff also becomes questionable when measured against the the fact that most of the complaints came from employees of other departments.

16. During the meeting, Mr. Zappitelli read from a memorandum prepared by him, dated May 11, 1995. Following the meeting, this memo was posted and distributed by Mr. Zappitelli throughout the staff areas of the Sheraton. The memo reads as follows:

To Our Valued Employees:

It is obvious that another union organization wishes to certify our employees and thereby become the beneficiaries of weekly deductions from your pay check earned through your hard work.

We would like to point out the following:

*You have been receiving benefits that most employees at other hotels do not receive:

• Free parking

*Free meals

*Your own Human Resource Committee

• Your own Social Committee, of which the company matches employee contributions

*100% paid benefits

*Safety Committee

*Overall wage increases in 1994 were in access of 3-1/2% of payroll and will be 4% in 1995.

Another unionized hotel in Niagara Falls received only 1.5%.

*Company history has reflected a policy to review salaries, benefits and working conditions on an annual basis along with Management Staff.

*AII employees are covered under the very stringent Labour Standards Act.

*The Sheraton Fallsview is a company that works for you and with you, i.e., Market Value Assessment to have taxes reduced~ instrumental in attracting a major casino in order to extend our season and create full time jobs.

*The Sheraton Fallsview is anxious to attract and keep the best employees in the hospitality industry in the Niagara area. This philosophy has been reflected in salaries, benefits and work­ing conditions.

*We are planning another addition which will create more jobs. This will be conditional on acquiring the proper funds, etc.

What can the union do for you besides Deduct funds from each and every pay check, probably forever?

Note that the unions no longer seem to be promising job guarantees. As noted before, you are the only one who can guarantee your own job simply by having pride in your work and doing it to the best of your ability. Maintaining the standards and policies of the Sheraton Fallsview Hotel will keep us competitive in the market-place and ensure you ample work.

It is your choice whether or not you are represented by a union. Your employer cannot legally interfere with this right. When you are approached by the union, many arguments will be given to you as to why you should join.

Does favouritism concern you? We have an open and effective Human Resources Committee which you are encouraged to use.

Do you think that there's no favouritism in a union shop?

When a co-worker approaches you to join a union, please ask yourself what their motives are. Is this person a good, honest, reliable worker? Or is he/she pushing for a union to save his/her job? Why are they worried about their jobs? Have they received their last warning because of substandard performance? This may well be your designated union representative Is this the person you want to represent you?

You are being asked to sign a membership card and authorize "Canadian Hotel and Service Worker Union, its Agents or Representatives" to act for you:

Do you know who they are? They may be one of the above co-workers.

An employee who lay sick in bed was visited at his house by a union worker who claimed he was from the hotel in order to gain access to his homey with the sole purpose of soliciting his mem­bership. Do you want this type of devious representation?

Would you trust them with your paycheck?

We have not been asked for and we have not given any union your names and addresses. How­ever, they seem to have them anyway.

Tony and Connie drive a 1987 Acura in desperate need of body work. The union representative that has been in your face these past several months drives a new Mustang. These people are salesmen. Sell! Sell! Sell!

Do employees have a right to join a trade union during working hours? Generally speaking, no. This should be done outside of working hours. An employee is not prohibited from getting other employees to sign union cards before or after work.

The employer can, however, take appropriate disciplinary action if the employee's union activi­ties begin to disrupt its business operations.

Romzap Ltd., as owners and directors of operations of the Sheraton Fallsview Hotel and Confer­ence Centre have specific functions and they are as follows:

1. Maintain order

2. Maintain efficiency

3. Maintain discipline

4. Hire

5. Retire

6. Manage enterprise

7. Products sold

8. Services rendered

9. Kinds of equipment used

10. Methods employed

11. Controls used

12. Make/alter rules

13. Establish standards

14. Institute new tasks

15. Hours of work

16. Lay off etc.

Union organizers who do not work for this hotel do not have the right to come on this property to try to get employees to join their union. It would be appreciated if these people are reported to management immediately as this is a breach of hotel security.

If 55% of the employees sign a membership card, the union is automatically in,. If 40% sign up, there is a vote held.

Don't let them fool you by the number of signatures they have. Each and every card has to be verified by the Labour Relations Act.

During the last union drive you were told that they had over 50% of the employees signed up. The figures we were given unofficially were 8 cards, less than 3%.

Once a union is in de-certification is very difficult, and we cannot assist you in this.

If you have already signed a card, you still have the time (before certification) and the right to change your mind simply sending a letter to the Labour Relations Board stating that you wish to rescind your enrolment. This is your right and Management can do nothing to assist or encour­age you individually to do so.

Labour Relations Board

400 University Avenue

Toronto, Ontario M7A fF7

(416) 326-7500

To ensure this goes through, it should be done in writing.

Hotel unions have done little or nothing to promote the hospitality industry in the way of job training, (except their own union representatives), and job creation.

Please keep in mind that no one has the right to coerce you or apply undue pressure as to whether you should join a union or not. If you feel you are being unduly harassed by union representa­tives, you should report this to the Labour Relations Board.

"Tony Zappitelli"

Tony Zappitelli

Director of Operations

17. The contents of the memo were not in dispute; however, there were substantial differ­ences with respect to whether Mr. Zappitelli made any additional comments, not set out in the memo, at the meeting. Having considered all of the evidence before me, including Mr. Zappitelli's admission during cross-examination that he made certain comments not set out in the memo, it is my determination that the following statements were made by Mr. Zappitelli at the May 12, 1995 meeting.

18. When Mr. Zappitelli made the statement in the memo about plans to build another addition, conditional on the acquisition of proper funds, he pulled out his pant pockets to display that they were empty and indicated that he personally did not have the funds to build the tower addition. He further stated that he would have to obtain a loan from the bank in order to raise funds for the building addition.

19. In the context of the statement in the memo pertaining to "unions no longer promise job guarantees", Mr. Zappitelli stated that the Sheraton can only pay employees out of profits and that the Sheraton must charge competitive rates because "it is competing with the world". It is also evident that Mr. Zappitelli told employees that the more time he spends dealing with the Union, the less time he will have to spend on increasing business at the Sheraton.

(iii) Postings

20. In addition to posting the May 11, 1995 memo throughout the staff areas of the Shera­ton, Mr. Zappitelli prepared and posted a number of other memos and documents during May and early June, 1995. Below is a summary of the postings which were prominently displayed, and in some instances distributed in employees time-slots, so that all information was available to every Sheraton employee.

21. On May 17, 1995, in response to complaints about Union representative conduct, a memo was posted setting out provisions from the Act reminding employees that they have the right to oppose a trade union, or to refuse to join a trade union, subject to a union security clause in a collective agreement, and that employees have the right not to be discriminated against or penal­ized by an employer or a trade union because of exercising their rights under the Act. The memo also mentions an employer's right to freedom of expression and advises employees that, should they have any concerns about union harassment, they should write to the Labour Relations Board.

22. On May 19, 1995 a memo entitled "Keeping You Informed" was posted advising employees of the following:

No one can interfere with your decision as to whether to join a Union or not join a Union. Do not be bullied or coerced into signing a Union card if you do not wish to do so.

Do not sign a Union card just for the purpose of putting an end to the conversation or to stop someone from pressuring or harassing you. Once a card is signed, it is very difficult to get it back. If 55% of the employees sign cards, certification of the Union will be automatic even though you may have signed a card only to stop the harassment of the Union organizer.

Do not be rushed into signing a Union Card. Think it over carefully. If you wish, you may tell the Union organizer that you will contact him or her at a later time, once you have thought things out and decide you want to join. Remember, if you sign a card, you may not get a chance to change your mind or even to vote by secret ballot.

If a Union is certified, you will have to pay Union dues whether you signed a card or not. That is the law. I personally do not see why you should have to pay to work here at the Sheraton.

Please bear in mind that once a Union is certified, the Union Executive will make decisions for you. Traditionally, not many people attend Union meetings and therefore the business of the Union, is in fact conducted only by the few people who really attend the meetings. Unfortu­nately, it is often the persons with an axe to grind with management that usually attend these meetings.

Unions usually practice a lot of peer pressure and put pressure on employees in order to bring them into line. You may have already experienced this pressure in the membership drive.

Presently, if you have a problem, you can come to management. Management will usually deal with the problem quickly and in a fair way. There is also a Human Resources Committee that you can go to for fair determination of your problem if you are not satisfied with how you are treated by management.

You have the right to join a Union but you also have the right to refuse to join. No one should pressure you into joining a Union if you do not want to do so. If you are pressured or harassed by a Union representative you should report the Union and the person pressuring you to the Ontario Labour Relations Board as follows:

Ontario Labour Relations Board

400 University Avenue

Toronto, Ontario

M7A 1V4

Toll Free Phone Number: 1-800-287-2965

If you have signed a Union card and want it back, you should also write to the above address and explain that you want it back.

Unions make promises of better working conditions and more money. It is easy to make those promises but you have to consider whether the promises are realistic. We have just emerged from a recession in the hospitality industry that has hurt many businesses and employees. Our employees have fared well in comparison to others in the hospitality industry.

Unions always make the promises of job security. Unions have never created one job. Job secu­rity can only come from us working as a team to provide excellent service to our guests. This type of "good will" creates job security. Remember, Union organizers are salesmen making a sales pitch to get your union dues. Do not be fooled by their promises.

Compare your wages, benefits and working conditions with Union contracts in your area. These were achieved without a Union or you having to pay Union dues. If you are unionized, and the Union votes to go on strike, you will have to strike even though you do not wish to do so.

My reputation as the President of this company and the reputation of members of the manage­ment teams stands for fairness. We hope to maintain this reputation. If we make a mistake or you do not feel that you have been treated fairly, you have an appeal to the Human Resources Committee.

Management does not participate in Union drives as these decisions should be made on an indi­vidual basis, freely and without interference by management. This is why we have not taken any active stand in the past on these matters. You should know however that it is wrong for a Union organizer or any member of staff to harass you, coerce you, or to put undue pressure on you to join a Union. That type of conduct is wrong and you are within your rights to resist it and demand to be left alone if the conduct persists.

23. Following a meeting with the sales office staff in which the Union was discussed by Mr. Zappitelli, on June 1, 1995, a number of posters were posted by him on bulletin boards and glass enclosed cabinets throughout the staff areas of the hotel. Although Mr. Zappitelli was responsible for the content of the posters, their preparation was delegated by him to an office staff employee who falls within the proposed bargaining unit. Soon after being posted, the first set of posters were removed. When Mr. Zappitelli discovered that they had been removed, he had prepared another set of posters and marked them "NOT TO BE REMOVED! Please be considerate to your fellow staff members." The new posters were posted on June 2, 1995. The posters are described as fol­lows:

24. A poster stating: " Where would you like management to spend their time? Taking care of guests and promoting the hotel thus creating more hours for you? (a box con­taining a checkmark is beside this question) or Responding to union campaigns? (an empty box is beside this question) YOU HAVE THE RIGHT TO CHOOSE! Do you want the vocal minority to spend your money?"

25. An cartoon illustration depicting a man being grabbed around the neck by hands com­ing out of a pop machine with a caption that states "AT OTHER UNION HOTELS:

You have to pay for your soft drinks... All proceeds to the Union."

3. A poster with the heading "DEDUCTIONS ALERT!!!" which advises that summer staff at the unionized Brock and Foxhead Hotel pay $70 per season for parking, $11.25 each paycheque for union dues (including back dues owed during layoff and illness deducted from their first paycheques upon return to work), $2.50 per day for meal deductions plus all taxes including income, P.S.T and G.S.T., and pay for all pop and coffee in the staff lunchroom.

4. A poster that states that the union did not start and does not help maintain the employees' social committee and reminds employees that management encourages and co-sponsors the social committee.

5. A poster that expresses that Employment Standards can do anything for you that a union can do and advises that Employment Standards is unbiased, is free and that employees should use its services if unable to resolve problems through the Human Resources Committee. Employees are reminded not to confuse Employment Stan­dards with "labour relations" which only deals with unions and are told "for example, if you have a complaint or wish to withdraw a signed card, contact labour relations."

6. A poster that states "the union has never created a job in private industry, except for their own. The union cannot change policies set by management. The union cannot get you an unearned raise. The Company can only pay what it can afford".

7. A poster that states "Starting October, 1995, when we renew our benefit package with our supplier, we will ask that the minimum requirements be reduced to 24 hours per week from 30 hours. This issue is being considered because of the on-going con­cerns of your Human Resources Committee."

8. A poster that contains an illustration of the proposed second tower addition with the caption "Who will build the tower addition? The union OR ROMZAP?"

9. Two of the above-noted posters were defaced and left posted until June 26, 1995. The "pop machine" poster, printed on bright orange paper, was posted on a blank white wall, in plain view, directly above the coffee/pop machine in the staff smoking lunchroom. After being posted, someone handwrote the words "SUCKS THE BIG ONE" underneath the word "union". The other poster that was defaced, was the one that contained the illustration of the Hotel's second tower. It too was printed on bright orange paper, posted in plain view on a stark white wall in between the two service staff elevators, just above the elevator button. On this poster, the word "union~~ had been crossed out and the word "SUCKS" was written beside it in red pen. All employees who testified on behalf of the Union and the non-managerial employees who testified on behalf of the Employer stated that they had seen the defaced posters. All managerial staff who testified, except Rose McIntyre, a supervisor in the housekeeping department, stated that they had not seen the posters in their defaced form but gave the impression that they would have taken steps to remove such posters had they been noticed. The managerial employees also acknowledged that they were aware of the Sheraton's policy prohibiting defacing or marking of company property. Ms. McIntyre, however, gave evidence that she saw the defaced posters but did not take any action because of the words "PLEASE DO NOT REMOVE…..”.

10. Mr. Zappitelli also posted provisions of a hotel collective agreement which set out rules with respect to union dues and deductions. This posting was done because Mr. Zappitelli wanted to provide an example of how union dues and fees are collected. It was acknowledged by Mr. Zap­pitelli that he is aware that the payment and collection of union dues and fees varies depending on the terms of a collective agreement.

(iv) June 1, 1995 - Sales Office Staff Meeting

26. On June 1, 1995 a meeting was held by Mr. Zappitelli, in his office, with six sales office staff employees; four of whom are non-managerial, and therefore would fall within the scope of the proposed bargaining unit. This meeting was held as a result of a suggestion by Pat Grayley, Director of Sales, to Mr. Zappitelli. Ms. Grayley made this request because one of her staff had asked her about the inclusion of office/sales employees in a potential bargaining unit and she believed that it might be useful to hold an information session about the Union. Ms. Grayley had also advised the employee to contact other hotels in Hamilton, Ontario, in order to inquire about inclusion of sales staff in collective bargaining. This meeting was called on a last minute basis and employees were not told in advance about its subject-matter, nor were they given the option to leave the meeting which lasted approximately 30 minutes.

27. During the meeting, Mr. Zappitelli showed a chart comparing wages of sales office staff at another local unionized hotel to the Sheraton's wages in order to explain that wages at the other hotel are less than the Sheraton's once deductions are made for union dues, parking, beverages and meals. To assist in his presentation, Mr. Zappitelli displayed and read aloud each of the post­ers referred to above in paragraph 23. In his testimony, Mr. Zappittelli took the position that the reference to summer staff in the "Deductions Alert" poster was made in error. He also expressed that a union was not necessary at the present time and stated that employees should wait to become unionized until the casino and second tower addition are built so that they would have "the pick of any union". In addition, he told the employees that a chambermaid at the Sheraton had requested her union card back and that she had received forms from the Board that were so complicated that she would require a Philadelphia lawyer to decipher them. Through Mr. Zappi­telli's cross-examination, however, it became clear that he knew that the chambermaid, in ques­tion, had received her card back directly from the Union.

28. Sue Doherty, an employee who attended the meeting, and who knew about Mr. Zappi­telli's past employment experience as a union steward, asked Mr. Zappitelli a number of questions including why he had changed his opinion about unions. In response to that question, Mr. Zappi­telli told the group about his dissatisfying experience in representing workers as a union steward and explained that it caused him to leave his job and to change his views on union representation. Further, based on the testimony of Ms. Grayley and Ms. Doherty, I find that Mr. Zappitelli stated that "good workers do not need a union and only the ones who do are those that break the rules". In this regard, Mr. Zappitelli remarked that good workers never need grievance and arbitration since they do not get into trouble.

29. During cross-examination, Mr. Zappitelli stated that he had no reason to doubt Ms. Doherty's testimony regarding her understanding of his statements pertaining to the continuation of employee privileges of free meals, beverages and parking. In this regard, Ms. Doherty testified that Mr. Zappitelli, in response to her question, stated that he could not guarantee that such privi­leges would continue, in the event of certification. Further, although he did not recall stating the following, Mr. Zappitelli did not doubt Ms. Doherty's recollection that he stated that if costs went up, he would have to make cuts and that such measures would be "out of his hands". I also find that Mr. Zappitelli did not specifically state, as asserted by Ms. Doherty, that if "he was backed into a corner he would come out kicking". However, on the evidence before me, it appears that Mr. Zappitelli rolled up his shirt sleeves and told the group that he was going to set aside running of the Hotel until all staff were informed.

(v) June 2, 1995 Housekeeping Meeting

30. On June 2, 1995, Mr. Zappitelli held a second meeting concerning the union with all housekeeping staff. The meeting began at 8:00 a.m. and lasted approximately 45 minutes. It was an unusual meeting because it was run by Mr. Zappitelli, it occurred 45 minutes earlier than the usual meeting time of the chambermaid daily meeting and because it included all housekeeping staff. Employees were not advised about the subject-matter, nor were they advised that they could leave the meeting at their option. At the beginning of the meeting, Mr. Zappitelli told employees that the Union organizing campaign was emotional for him. Essentially what occurred was an expanded version of the meeting Mr. Zappitelli held with the sales office staff on June 1,1995.

31. During the meeting, Mr. Zappitelli addressed the group by displaying, using an over­head projector, and reading aloud, the posters referred to above in paragraph 23. He also showed a wage comparison chart which outlined wage rates for housekeeping positions at local non-union and unionized hotels. The wage rate for the laundry staff position at the unionized hotel was left blank. Mr. Zappitelli advised that the position does not exist at the comparator union-hotel due to contracting out of laundry services. Mr. Zappitelli used the chart to assist in his explanation that although the wage rates at the unionized hotel appears higher than at the Sheraton, the rates are, in fact lower, after deducting the cost of union dues, parking, meals and beverages.

32. I am further satisfied, giving particular weight to the testimony of Ms. McIntyre and Mr. Doucet (a non-managerial employee called on behalf of the Sheraton), that Mr. Zappitelli commented to employees that the hotel rates must remain competitive, and that if he is required to pay increased wages, increased room rates might result causing a loss in business. In addition, I am convinced, again giving particular weight to the testimony of Ms. McIntyre and Mr. Doucet, that Mr. Zappitelli expressed to employees that if the union came to the hotel, the benefits of free parking, meals and beverages would be out of his hands and gave the impression that such benefits would be charged in a similar fashion to the local unionized hotel.

33. During the meeting, a discussion ensued surrounding the value of unions in the work­place. I find that the topic was introduced by a non-managerial employee, Bill LeFave, who asked employees if they had previously belonged to a union and then proceeded to relate a story about his family's poor experience with a union. Mr. LeFave's story was followed by comments made by Mr. Zappitelli who recounted his negative experience as a union steward, essentially a repeat of the story he told to the office staff on June 1, 1995. Mr. Zappitelli also expressed his view that the only people who need unions are those who break the rules. In debating with Mr. Wilson about the tax deductibility of union dues, Mr. Zappitelli attempted to correct advice that dues were 100% tax deductible and remarked that people would be better off donating to charity.

34. Mr. Zappitelli also told employees that, if the casino is built in Niagara Falls, employees would have their pick of any union and he advised them that he would prefer that employees wait for unionization until the casino scenario occurs. According to Mr. Zappitelli, although employees have the "right to choose" a union, he wanted them to research the Union in more detail before choosing. At the conclusion of the meeting, I have determined that Mr. Zappitelli stated that he would have meetings with them every day or week, if necessary, to keep them informed.

(vi) Other Staff Meetings

35. In addition to the two housekeeping meetings and the sales office meeting reviewed above, Mr. Zappitelli discussed the Union organizing campaign with other departments, but not to the same extent. The topic of the Union arose within the context of regular meetings of the Food and Beverage department on May 30, 1995, the Front Office department on May 31, 1995, the Banquet department during the second week of May, 1995, and in a meeting of the Human Resources Committee on June 14, 1995. The minutes of the May 30, 1995 Food and Beverage department meeting reflect that Mr. Zappitelli told staff that he could not talk about the Union or discourage anyone from signing up. He also advised that no one could force them to sign a card. There were no minutes prepared for either the Front Office meeting on May 31, 1995 nor the Ban­quet department meeting above-noted. The minutes of the Human Resources Committee record that Mr. Zappitelli was asked by an employee about the "B.E.C.A.U.S.E" memo (referred to below), and that he explained that the memo's origin was unknown and that its posting was unau­thorized. A question about a petition was also raised during this meeting, but Mr. Zappitelli stated that he could not discuss a petition with anyone. He further told employees that they could call the "OLRB" if concerned about their rights.

36. When Mr. Zappitelli first became aware of the Union organizing campaign on April 5,

1995, he advised supervisors in a Human Resources meeting, to inform employees of their rights during a union organizing drive. Mr. Zappitelli also held a meeting with all managers on May 25, 1995. The minutes of the meeting reflect that Mr. Zappitelli advised managers that no intimidation is permitted to prevent employees from joining the Union, nor is the Union permitted to intimi­date employees. Mr. Zappitelli further advised that department heads were permitted to advise employees to investigate and research before making a decision to sign a union card. He also told the managers that they should talk to employees to make sure they understood both the advan­tages and disadvantages of the Union.

(vii) The" B.E.C.A.U.S.E" Memo

37. On June 10, 1995, the following memo was discovered posted in the staff change rooms, kitchen and dining room, and outside the housekeeping office:

“June 9, 1995

From: The BECAUSE. Group (Be Concerned About Unionizing of Sheraton Employees)

Topic: Work being contracted out

A strong possibility exists that any & all positions currently held by any & all employees of Housekeeping, Laundry, Security and Maintenance departments could be eliminated and these employees be permanently laid off at any time after the union sets up shop in this hotel.

The work formerly done by these employees will be contracted out to private security firms, commercial janitorial and laundry service providers and industrial maintenance workers.

If it could possibly happen to employees in these departments then ask yourself - Could my job be next ???

Do you know if the union asking to represent you has included safeguards against this type of action in the contract they want you to agree to work under ???

It is in your best interest to find out about this. Ask the union recruiters about this and see what they have to say or don't want to say about this matter."

No one was identified as responsible for the memo. The memo was in plain view to staff from 7:00 a.m. until 2:30 p.m. that day. Ms. Fortuna, a housekeeping supervisor, noticed the memo upon her arrival at work at 7:00 a.m. on June 10, 1995 and discussed it with staff that morning and at lunch. According to Ms. Fortuna, staff asked her whether laundry, maintenance and security ser­vices would be contracted out. She advised that the idea was illogical because the Hotel had in-house facilities and services. One of the Union's witnesses testified that she believed the contents of the memo were untrue. Despite knowing that the message contained a threat to job security, Ms. Fortuna did not report the memo to Mr. Zappitelli or to other senior management claiming that she thought it was posted for everyone to read and that she was preoccupied with her work.

38. When Mr. Zappitelli arrived at work at noon on June 10, 1995, he was advised about the "B.E.C.A.U.S.E" memo by his son, Albert Zappitelli, the Sheraton's Manager. Mr. Zappi­telli did not remove the memo immediately because he claimed he was confused by the language in its last paragraph, and therefore, he wanted to investigate the matter. Because of the wording of the last paragraph, Mr. Zappitelli was unsure if the Union had prepared the memo. He ordered Security, at 2:30 p.m., to remove the memo from all locations where it was posted. Security, in fact, failed to remove all of the memos, and as a result, the memo located outside the housekeep­ing office was not torn down until June 11, 1995.

viii Petition

(a) Allegations of Employer Interference

39. During the first week of June, 1995, Karen Nicol, an employee in the Accounting department, was approached by the Sheraton's Controller, Fred Alam, about a petition. Much of Ms. Nicol's evidence about Mr. Alam's comments and his alleged involvement in the petition was disputed. Having regard to the evidence tendered, I prefer the version of events stated by Ms. Nicol because it is more probable in the circumstances having regard to the usual factors in assessing credibility including the demeanour of Mr. Alam during his testimony. Accordingly, I find that the following events represent what occurred. Mr. Alam called Ms. Nicol into his office during the first week of June, 1995 and asked her how she felt about the Union. He told her that he had just been approached by an employee, Mr. Towne, who had started a petition against the Union and was asked to provide assistance. Mr. Alam explained to Ms. Nicol that he told Mr. Towne he could not assist in the petition; however, he proceeded to tell Ms. Nicol that if she was interested she should talk to Mr. Towne. He also told her that if she wanted to know more about the petition, she could meet with him, Mr. Towne and Mr. Zappitelli. Ms. Nicol advised Mr. Alam that she did not have sufficient information about both sides of the Union issue to make a judgement, and that, unless she had more information, she would not make a commitment either way. She told Mr. Alam to call her regarding a meeting with him and Mr. Zappitelli about the petition. Shortly after their discussion, Mr. Alam was questioned by Ms. Nicol about the petition and was told by him to forget about their discussion.

b) Allegation of Witness Intimidation

40. Related to Ms. Nicol's testimony regarding the petition, is the section 82 allegation involving a conversation between her and Mr. Zappitelli on June 30, 1995. The evidence about this conversation was not in great dispute. On June 30, 1995, three days after it was disclosed to the Sheraton that Ms. Nicol would be testifying about the petition, Mr. Zappitelli called her into his office, without stating a reason, and told her that she did not have to talk to him if she so chose. It should be noted that when particulars were ordered on the first day of the hearing, the Union was concerned about divulging names of employees for fear of reprisals by the Sheraton. Although I did not make an order, as requested by the Union, to bar either party from speaking to potential witnesses, I did caution the parties regarding the reprisal provisions in the Act and stated that it was in everyone's interest not to expand the numerous matters already at issue in the case.

41. The conversation between Mr. Zappitelli and Ms. Nicol lasted no more than five minutes. He advised her that he knew she would be testifying at the hearing and that he had no control over the fact that she had been subpoenaed. He then reminded Ms. Nicol, who agreed, that the information that she deals with in her position in the accounting department is confidential and that she must not disclose such information. He told her that she must not "say anything to anyone because people are recording her statements". Mr. Zappitelli also told her that she must have "leaked something which got into the wrong hands", but he explained that he could not reveal what was leaked due to the on-going proceedings at the Board. At the conclusion of their discussion, Mr. Zappitelli advised Ms. Nicol that his counsel would be at the Sheraton that after­noon, and that it was her prerogative if she wanted to talk to him. Ms. Nicol did meet with coun­sel, but did not discuss the conversation she had with Mr. Zappitelli. Ms. Nicol's uncontradicted testimony was that following her conversation with Mr. Zappitelli, she felt nervous and worried, as if she'd made an error in disclosing confidential information. However, she concluded that the only information Mr. Zappitelli could have been referring to was the petition.

(c) Petition Circulation

42. Mr. Lair, a maintenance employee, testified about a petition he circulated on or about June 16, 1995. The petition was not before me for the purpose of determining the number of mem­bership cards filed in support of the application as it was untimely. However, Mr. Lair was permit­ted to testify generally about the petition and his efforts in collecting signatures. Essentially, the petition asked employees to support the demand for the right to vote against any union in a certifi­cation process. Commencing June 16, 1995, Mr. Lair and two other employees collected signatures on the petition at work during lunch and breaks. Mr. Lair, also came into the hotel on his days off

and approached employees for signatures in support of the petition during their working hours and during their breaks. 183 employees signed the petition. Mr. Lair denied that there was any mana­gerial involvement in the petition and indicated that he was unaware of a discussion regarding the petition between Mr. Alam and one of the other employees who assisted with the petition.

(ix) Bill Wilson Incidents

43. On May 20, 1995, Mr. Wilson received a written warning and disciplinary transfer to a position in the laundry staff area from his position as a houseman. The warning letter prohibited Mr. Wilson from entering the public areas and guests floors of the hotel and warned him that fur­ther contraventions of the instructions would lead to further disciplinary action up to and including dismissal. The Sheraton maintains that its actions were not motivated by anti-union considerations, but resulted solely because of Mr. Wilson's poor work record and because of a complaint filed by Ms. Piper about Mr. Wilson on May 19, 1995. The following is a summary of the background and facts which surround the discipline of Mr. Wilson.

44. Mr. Wilson was hired in the position of houseman in April, 1994. As a houseman, Mr. Wilson's duties generally included supplying linens and toiletries and transporting laundry to the chambermaids assigned to various hotel floors. As a general rule, Mr. Wilson was assigned to ser­vice the chambermaids on floors 3 to 11. His common-law partner, Kathy Mercer, a chambermaid at the hotel, was generally assigned duties for the 14th floor. Mr. Wilson's employment record reveals that he had been reprimanded by his supervisors, regarding his uncooperative attitude toward other employees in September, 1994 and was ordered to stay off the 14th floor when he returned to work following a lay-off in January, 1995. Mr. Wilson did receive an employee disci­plinary report, which he signed noting his disagreement in part, for the September, 1994 reprimand but did not receive written confirmation of the January 1995 order. On April 3, 1995, Mr. Wilson received another written warning pertaining to complaints from other employees about his attitude and to concerns about overstocking linens.

45. In addition to the complaint filed by Ms. Piper, the written warning of May 20, 1995 refers, in part, to Mr. Wilson being observed on the 14th floor, in contravention of the January, 1995 instruction, on May 16 and May 20, 1995. The written warning also refers to an incident that occurred on May 16, 1995 in which Mr. Wilson apparently refused to service chambermaids when requested claiming that he was too busy and behind in his work. However, neither of these inci­dents were brought to Mr. Wilson's attention until he received the written warning letter on May 20, 1995, nor was Mr. Wilson asked his version of the events. I am satisfied, based on the evi­dence, that Mr. Wilson was seen on the 14th floor, on May 16, 1995 and did refuse to service chambermaids, as requested, on May 16, 1995.

46. As further background, it should be noted that Mr. Wilson has a lengthy criminal record, which was brought to the attention of Mr. Zappitelli through an anonymous phone call in January, 1995. Although shaken by knowledge of a possible criminal record, Mr. Zappitelli did not take any specific action against Mr. Wilson, except to seek legal advice and to notify his immediate supervisors generally about it. It was evident from Mr. Zappitelli's cross-examination that he mts­read Mr. Wilson's employment history as having gaps of two to three years rather than the few months gap that is noted on Mr. Wilson's employment application. During his testimony, Mr. Wil­son admitted to the existence of a record, including a conviction of assault against Ms. Mercer, but both he and Ms. Mercer deny that an assault occurred. There was also evidence before me regard­ing other personal difficulties between Ms. Mercer and Mr. Wilson, which were generally denied by them, but which certainly formed the basis of Ms. Piper's dislike and distrust of Mr. Wilson.

47. With respect to the incident involving Ms. Piper, it is my finding that the altercations

which occurred on May 19, 1995 were sparked because of a telephone call by Mr. Wilson to Ms. Piper's home on May 18, 1995. It should be noted that there were significant differences between Mr. Wilson and Ms. Piper about all of the incidents surrounding the May 19th altercations. Based on my assessment of all of the testimony provided, the following is my determination of the facts which appear to be most probable in the circumstances.

48. During the telephone call on May 18, 1995, Mr. Wilson spoke to Ms. Piper's partner, Eric Kay, and asked him why Ms. Piper requested her union card back. Mr. Kay told Mr. Wilson that he was not aware about the Union drive nor of Ms. Piper's involvement and advised Mr. Wil­son that he did not want to get involved. Later that day, Mr. Wilson bumped into Mr. Kay at a local tavern and again asked about Ms. Piper's request to rescind her card. He was essentially given the same response by Mr. Kay. Mr. Kay related his conversations with Mr. Wilson to Ms. Piper who became extremely angry that Mr. Wilson even knew about her request and had approached Mr. Kay about it. As a response, when Ms. Piper saw Mr. Wilson the next morning at work, she confronted him, in the presence of a supervisor, and, uttering profanities, told him that he had no right to call her home and question Mr. Kay.

49. Following this altercation, Ms. Piper spoke to her supervisor Ms. Fortuna, who took her to see Mr. Zappitelli. Ms. Piper told Mr. Zappitelli that Mr. Wilson had called her at home regarding her request to return her union card. She advised Mr. Zappitelli that she had changed her mind about the Union after the May 12, 1995 housekeeping meeting. She did not divulge that she yelled and swore at Mr. Wilson that morning.

50. At lunch that day, Ms. Piper was approached by Ms. Mercer who angrily questioned Ms. Piper why she had spoken to Mr. Zappitelli and stated that" people's jobs were on the line". Immediately after this incident, Mr. Wilson came into the lunchroom and yelled at Ms. Piper about her discussion with Mr. Zappitelli and warned her to keep her mouth shut about the union organizing campaign. In response, Ms. Piper told Mr. Wilson that Mr. Zappitelli knew everything about the campaign even though she had not disclosed any other information to Mr. Zappitelli other than her change of mind on the Union.

51. Tom Balkwell, another employee, testified about the confrontations that took place in the lunchroom on May 19, 1995. He could not recall the details of what was stated, but explained that he was shocked by the incidents. He stated that Ms. Piper appeared "shook-up and embar­rassed". Liz Toth, an employee who was sitting beside Ms. Piper during these incidents, was not called to testify.

52. After this altercation with Mr. Wilson, Ms. Piper remained in the lunchroom, finished her cigarette and then reported the incident to Ms. Fortuna and to Mr. Zappitelli. During her con­versation with them, she indicated that she had been humiliated by Mr. Wilson and Ms. Mercer in front of other staff members. Ms. Piper gave the impression that she felt threatened by Mr. Wil­son, particularly given her knowledge of his criminal background. She also advised Mr. Zappitelli that she had supplied 45 employee names to the Union to assist in the campaign.

53. The police were called by Mr. Zappitelli and Ms. Piper provided a report of the situa­tion but no charges were filed. Sometime later that day, Mr. Zappitelli approached Mr. Wilson in a hallway and asked him if he swore at Ms. Piper that day. Mr. Wilson responded that he did not swear, but rather, it was Ms. Piper who engaged in swearing. Mr. Zappitelli then told Mr. Wilson to stay away from Ms. Piper. Mr. Wilson called Ms. Piper on the evening of May 19, 1995, but did not speak to her. When Mr. Wilson called, he was spoken to by Mr. Kay who yelled at Mr. Wilson not to contact Ms. Piper again. On May 20, 1995, Mr. Wilson was re-assigned to a laundry position pending investigation. He was told to stay away from Ms. Piper. He was also warned that any contraventions would result in further discipline up to and including dismissal. I do not find that Mr. Zappitelli told Mr. Wilson, as alleged, that he would make his life miserable and find a reason to fire him if he continued to organize the hotel.

54. Following the disciplinary notice of May 20, 1995, Mr. Wilson attempted to contact Ms. Piper, at home, on May 25, 1995. The conversation that took place essentially involved Mr. Kay, yelling profanities and making threatening remarks at Mr. Wilson regarding any further interaction with Ms. Piper. Ms. Piper testified that she filed a complaint with the police about Mr. Wilson and also informed Mr. Zappitelli about Mr. Wilson's phone call of May 25, 1995. The Sheraton did not take any further action against Mr. Wilson relating to the May 25, 1995 phone call.

55. Other incidents which form the basis for the Union's allegations of harassment of Mr. Wilson include the following. On May 16, 1995, Mr. Zappitelli approached Mr. Wilson on the 17th floor and asked him what he was doing on that floor since normally Mr. Wilson was assigned to the lower floors. Mr. Wilson replied that he had been given an assignment by his supervisor for that floor but Mr. Zappitelli did not believe him. Mr. Zappitelli briskly picked up the house phone and called Mr. Wilson's supervisor only to receive confirmation that Mr. Wilson had been assigned duties on that floor. I am satisfied that Mr. Zappitelli used an angry tone toward Mr. Wilson dur­ing this incident. Another allegation of harassment involved an incident in which one of Mr. Wil­son's supervisor's, Ms. Fortuna, yelled at him during one shift in early June, 1995 for folding laun­dry while sitting on a chair rather than standing. Ms. Fortuna claimed that folding laundry from a sitting position is an inefficient and unacceptable method and that she would not tolerate any employees performing the task from a sitting position. Based on the evidence, I am satisfied that other employees had, in the past, folded laundry in a sitting position without reprimand.

56. The Union also alleged that another employee in the laundry department, Todd Over­all, was questioned by Ms. McIntyre, a housekeeping supervisor, regarding his decision about join­ing the union and about Mr. Wilson's union involvement. The evidence of Ms. McIntyre and Mr. Overall was in dispute. Based on the uncontradicted testimony of Mr. Overall, as well as the usual factors in determining credibility, I am satisfied that his version of events represent what occurred. Mr. Overall stated that he had told Ms. McIntyre previously, in relation to a prior Union drive, that he was not in favour of unions. In this Union's organizing campaign Ms. McIntyre told Mr. Overall that Mr. Zappitelli wanted to know who had signed union cards and asked him to keep his "eyes and ears open". On three separate occasions Ms. McIntyre asked Mr. Overall how Mr. Wil­son was doing in the laundry department. During one of these approaches Ms. McIntyre men­tioned to Mr. Overall that "Bill Wilson is trying to find things out on us." Mr. Overall replied that "you are trying to get things on him", to which Ms. McIntyre replied "all's fair in love and war".

The Law

57. With these facts in mind, I turn now to the law. An employer's right to freely express its views during a union organizing campaign is provided for in section 65 of the Act:

58. 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 the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

59. The Board's jurisprudence on the meaning of "freedom of expression" is succinctly set

out in the case of Viceroy Construction Company Limited [1977] OLRB Rep. Sept. 562 at page

563:

9. Insofar as it relates to freedom of expression that section seeks to balance two competing interests. On the one hand it protects the right of an employer to express his opinion in opposi­tion to a trade union. On the other hand it recognizes the sensitive nature of employment rela­tionships and protects employees from utterances of an employer that would have a coercive impact on their decision whether or not to be represented by a union.

10. The legislative scheme anticipates that having been exposed to the views of both employer and union the employees should decide for themselves. To insure the independence of their decision section 61 of the Act prohibits intimidation or coercion of employees by a trade union and section 56 imposes a similar restraint upon an employer. But while section 61 prohibits "in­timidation and coercion" section 56 is extended to include a prohibition of "coercion, intimida­tion, threats, promises or undue influence". Implicit in the broader reference to threats, prom­ises and undue influence, is the recognition that employees may be especially vulnerable to the influence of their employer.

11. The Act recognizes that an employer is in the more immediate position to affect an individu­al's employment relationship, if only by virtue of its freedom to advance, preserve, impede or terminate an individual's employment. Therefore, by the terms of the Act, that very freedom is restricted. In order to protect and promote the collective bargaining process the Legislature has provided that no employer is free to affect a person's job security or conditions of employment when the employer's action is prompted by an anti-union motive, (e.g. section 58 of the Act). For the same reason, by virtue of the Act, an employer's freedom of expression regarding possi­ble union representation of his employees is not absolute. While he is of course free to express his view of representation by a trade union he may not use that freedom of expression to make overt or subtle threats or promises motivated by anti-union sentiment which go to the sensitive area of changes in conditions of employment or job security.

12. The determination of whether conduct falls within the permissible boundaries of free­dom of expression requires a line drawing exercise and balancing of competing interests based on the particular facts of each case. In Lorain Products (Canada) Ltd., [1977] OLRB Rep. Nov. 734, at page 735 the Board commented as follows:

13. ... The line which separates freedom of expression from undue influence or the other prohibi­tions found in Section 56 of the Act is a thin one which must be drawn having regard to the facts of the particular case. There are, however, certain broad indicia which have been well set out in the Dylex case (supra) at paragraph 19:

"In seeking to establish where the line lies the Board starts with the presumption that employees recognize that employers generally are not in favour of having to deal with employees through a trade union, and that therefore it ought not to surprise them when their employer indicates that he would prefer it if they voted against a trade union. Following from this the Board takes the view that an invitation to employees from their employer to vote against a trade union, in the absence of any surrounding facts or circumstances which would cause the employees to place undue emphasis on such statements, does not constitute undue influence within the meaning of section 56. (See: Playtex Limited, [1972] OLRB Rep. Dec. 1027.) On the other hand, however, the Board is also cognizant that an employee may be peculiarly vulnerable to employer influ­ences. This point is clearly brought out in the decision of the Canada Labour Relations Board in the Taggart Service Limited case [(1964) CLLR Transfer Binder '64-'66, ¶16,015 at page 13,055] the following excerpt from which was cited with approval by this Board in the leading case of Bell & Howell Ltd., [1968] OLRB Rep. Oct. 695 at p. 706:

'An employer may express his views and give facts in appropriate manner and circumstances on the issues involved in representation proceedings in so far as these directly affect him and has the right to make appropriate reply to propaganda directed against him in relation thereto. However he should bear in mind in so doing the force and weight which such expressions of views may have upon the minds of his employees and which derive from the nature and extent of his authority as employer over his employees with respect to their wages, working conditions and continuity of employment. He should take care that such expressions of views do not consti­tute and may not be reasonably construed by his employees to be an attempt by means of intimi­dation, threats, or other means of coercion to interfere with their freedoms to join a trade union of their choice or to otherwise select a bargaining agent of their own choice."'

60. The Board also examines the cumulative impact of statements and conduct to determine if they are designed to influence employees in contravention of the Act. Thus one of the tests for granting certification without a vote pursuant to section 9.2 of the Act is satisfied "where the cumulative effect of a range of unlawful employer activities, none of which taken separately call the section into play, has the effect of undermining the confidence in the rule of law which a rea­sonable employee is presumed to have and which gives a reasonable employee the confidence to make a free choice" (Canac Kitchens Limited, [1994] OLRB Rep. August 972, at page 985). By way of example, in the Dylex decision (cited above) at page 367, the Board did not accept the argument that a series of letters by an employer addressed to employees during the period prior to a representation vote merely contained factual information. In that case, the employer issued three letters which clearly indicated that it was opposed to having its employees represented by the appli­cant union. In addition to urging employees to vote "no" in the representation vote, the letters contained a series of questions and answers relating to job security, a possible future strike and statements that the Union cannot guarantee various terms and conditions of employment. The Board concluded, at page 367, that the cumulative impact of the statements contained in the letters exceeded the realm of free speech when it stated that:

61. Counsel for the respondent took the position that the material set out in the three let­ters to employees was factual and that it did not constitute a form of undue influence. It may well be that each of the statements contained in the letters if taken by itself is factual. However, we nevertheless are of the view that the letters when taken together in their entirety go well beyond a mere expression of employer views but instead deliberately seek to capitalize on normal employee desires for job security and fears of loss of employment.

62. The Board also reviews the circumstances and timing of statements, such as increases to wages or benefits, to determine if such statements are designed to influence employees. See for instance, Kuhlman Plastics of Canada Ltd., [1988] OLRB Rep. Dec. 1284, at page 1288 and Canac Kitchens Limited, (cited above), where the Board concluded that the manner and timing of confer­ring improved benefits arose in response to the Union organizing campaign, and therefore, consti­tuted influence over employees in contravention of the Act.

63. Once a finding of a contravention of the Act is made, the Board must then assess, under section 9.2 whether the violation has resulted in a situation where the true wishes of employees are not likely to be ascertained. This analysis involves an objective assessment which considers the impact of the employer's misconduct on a "typical employee" (see: Zest Furniture Industries Limited, [1987] OLRB Rep. February 299, at page 304.) Furthermore, the Board has also consid­ered the impact of an employer's statements on an entire workforce where such statements were made to only a portion of employees. In this regard, the Board examines the facts to determine whether statements made, in contravention of the Act, to a smaller group of employees, "poison" the employees as a whole, given the organization of the workplace and how communication travels within it. In Domus Industries Ltd., [1994] OLRB Rep. December 1630, at page 1640, the Board applied the provisions of section 9.2 to a group of employees located at different job sites where it concluded that the true wishes of a group of employees at one job site could not be ascertained because of the employer's conduct and stated as follows, at page 1640:

Once the well is poisoned in this manner it becomes impossible to ascertain the true wishes of the "employees" as a group, and the legislative remedy in section 9.2 may be applied by the Board, To conclude otherwise would be to reward an employer for its commission of unfair labour practices.

Decision

63. Based on my review of the evidence and on the submissions, I have concluded that a number of the statements made at meetings by Mr. Zappitelli, statements made through the poster campaign, the failure to promptly remove anti-union graffiti and the B.E.C.A.U.S.E. memoran­dum establish that the Sheraton breached section 65 of the Act. I have also determined that the Sheraton, through Mr. Alam and Mr. Zappitelli must have been involved in the petition and that such involvement constitutes improper employer interference. I have found that Mr. Zappitelli intimidated Ms. Nicol with respect to her testimony in contravention of section 82 of the Act. I have further found that the discipline of Mr. Wilson on May 20, 1995 was motivated, at least in part, by anti-union animus, and therefore, the Sheraton's conduct in that regard resulted in a viola­tion of section 67 the Act. Many of the statements made by Mr. Zappitelli through discussion, memos and posters, do not breach the Act; for example, I have concluded that posting of collec­tive agreement provisions on dues deductions does not offend the Act. However, many of the statements reviewed, do not fall within the acceptable framework of employer free speech, even when juxtaposed against statements notifying employees of their rights under the Act. The fact that Mr. Zappitelli inserted statements about employee rights does not neutralize the intention or impact of the messages conveyed in contravention of the Act. The cumulative effect points to the conclusion that the Sheraton deprived the employees "of the ability to choose freely in an atmo­sphere untainted by employer undue influence and interference, whether or not they wished to be represented by the applicant trade union" (Robin Hood Multi-Foods Inc., [1981] OLRB Rep. July 972 at page 998). Below are my reasons in support of these findings.

64. A common theme that arose from all of the evidence was that employees, which include skeletal full-time year-round staff and numerous summer and seasonal staff are sensitive about the seasonal workload and are waiting in anticipation for the prospect of year-round employment that would occur with the proposed hotel "casino" expansion. It was also evident that employees, and Mr. Zappitelli, regard the current provision to staff of free beverages, meals and parking as an extremely valuable benefit unique to the local hotels in Niagara Falls. It also became clear, primar­ily through the evidence of Mr. Zappitelli, that despite the large size of the hotel and employee complement, the Sheraton is run from a "family" oriented approach with Mr. Zappitelli having close personal control over all aspects of the hotel's operation. It was evident that Mr. Zappitelli makes an effort to know employees on a first-name basis and to communicate information, where appropriate, to all employees equally.

65. Although Mr. Zappitelli tried to create the impression at the hearing that he was neu­tral about the Union and that he would be accepting of the Union if the employees voted in favour of it through a representation vote, the message that he conveyed to the employees was that he was in disfavour of dealing with them through a union, at least at the current time. As stated earlier in this decision, the caselaw has established that there is nothing improper for an employer, in the face of a union organizing drive, to express to employees that it does not want a union; in fact, that position is often what is expected as an employer's response to the prospect of unionization (see: Lorain Products (Canada) Ltd., cited above). However, Mr. Zappitelli couched his views about unionization by interweaving implied threats to employee job security and economic well-being. Coupled with this message, he repeatedly reminded employees that it was not too late to change their minds about the union and gave instructions on how they could seek the return of their mem­bership cards.

66. In the May 12, 1995 housekeeping meeting Mr. Zappitelli held a captive audience meet­ing supposedly for the purpose of providing information to employees about their rights and to, in part, respond to complaints about the union's organizing campaign. Based on my earlier findings regarding this meeting, Mr. Zappitelli's underlying motivation for personally addressing this group must have been directed at conveying his dislike for the Union and for instilling some fear and doubt in the minds of employees regarding their decision about unionization. Although portions of the May 11, 1995 memo contain valid factual statements, other statements together with Mr. Zap­pitelli's additional remarks are inappropriate.

67. During the meeting, Mr. Zappitelli clearly advised employees that the casino had been actively promoted by him for their benefit in order to extend the Sheraton's season and to create full-time jobs. He also reminded employees that an addition to the Hotel was planned which will create more jobs. It should be noted that in his testimony, Mr. Zappitelli explained that the Hotel tower addition would not be built if the casino didn't come to fruition. That was not the message conveyed to employees during the meeting nor in the posting of the May 11, 1995 memo.

68. Mr. Zappitelli's comments must be considered in the context of his stated purpose of the meeting, which was to respond to complaints and advise employees of their rights about the union. In that context, Mr. Zappitelli's remarks cannot reasonably be aimed at his stated purposes, but rather are designed to raise doubt in employees minds about hotel expansion, and greater job security. Furthermore, the implied message of the negative impact of certification on expansion plans is reinforced by the subsequent posting of the "tower" poster which raises the question of whether a second tower will be built and asks employees who will build it; the union or the Shera­ton. If not to instil fear about negative financial consequences in the event of certification, there appears to be no other purpose to Mr. Zappitelli telling employees that the Sheraton can only build the addition with bank financing. Similarly, Mr. Zappitelli focused on his precarious financial situation by making the gesture of his empty pant pockets and by comparing his dilapidated vehicle to the "new mustang" driven by the union representative. Although Mr. Zappitelli claimed that his remarks only stipulated facts, they must be considered in the manner in which they were pre­sented. The implication of his remarks suggest that neither he or the Sheraton have additional funds to spare ,and therefore , expansion plans and promises of year round employment could be negatively impacted in the event of unionization.

69. I have also concluded that the statements noted in the May 11, 1995 memo, taken together with his additional remarks about remaining competitive during the May 12, 1995 meeting are in breach of the Act. The comments about the hotel remaining competitive were made in con­junction with statements about the union no longer promising job guarantees. Mr. Zappitelli's comments that the hotel must remain competitive with rates and that the hotel can only pay out of profits, although presumably factual, are clearly playing on employees' sensitivities to continued job security. In isolation, these statements might not be of particular concern, but they occurred in a context and as part of a continuing dialogue of meetings, statements and posters. The logical con­clusion to be drawn from Mr. Zappitelli's statements is that if the Sheraton is forced to increase room rates, as a result of the increased costs arising from unionization, it would not remain com­petitive and would lose business thereby affecting jobs. This threat was also implied during the June 2, 1995 Housekeeping meeting. These comments go far beyond responding to, for example, the alleged promises to employees that wages would increase to $12 or $13 per hour in the event that the Union is certified.

70. The threat to job security and employees economic well-being is also substantiated by the fact that Mr. Zappitelli told employees at the meeting that the more time he is required to spend dealing with the Union, the less time he will have to devote to increasing Hotel business. This warning is repeated in clearer terms in the poster which questions employees about how they would like management to spend their time that Mr. Zappitelli subsequently posted throughout the staff area of the Hotel and reviewed at the June 1, 1995 sales office meeting and June 2, 1995 housekeeping meeting. Even though Mr. Zappitelli insisted that employees have the right to choose union representation, his words were not neutral and placed the choice about union repre­sentation in the context of the possibility of less work and the reduced likelihood of extended year-round employment. It is evident that Mr. Zappitelli was using his position to affect the particular vulnerability of employees by linking the union to diminished business opportunities which could directly effect continued and future employment. Such conduct is precisely what is proscribed by the Act as illustrated in the Board's jurisprudence (see: Viceroy Construction Co. Ltd., Lorain Products (Canada) Ltd. (cited above), citing Dylex Limited [1977] OLRB Rep. June 357).

71. A strong comparison can be drawn between the conduct of Mr. Zappitelli with regard to the provision of information on the withdrawal of union cards and the conduct of the employer in Dylex Limited (cited above). In that case, the employer in conjunction with making numerous statements about job security, the inability of a union to guarantee employees anything and, the possibility of a strike, urged employees to vote "NO" in a representation vote and included an illustration of a ballot with an "X" marked beside the word "NO". The Board concluded, at page 368, that the employer's letters were deliberately calculated to play upon employee fears for job security. Added to that were anti-union visual displays in constant view of employees, as well as instructions explaining how to vote "NO". As a result, the Board found that these actions taken together constituted undue influence. In comparison, Mr. Zappitelli's statements instructing employees how to obtain their signed union cards back in the context of the May 12th meeting and the posted memoranda of May 19, 1995 and the "Employment Standards" poster, also constitute undue influence because such statements were coincident to comments threatening job security, disparaging the union and affecting economic status of employees. It must also be recalled that Mr. Zappitelli's reminder messages on how to seek the return of a union card remained in employees' view until early June, 1995 when additional anti-union visual displays were posted and when fur­ther meetings between Mr. Zappitelli and staff occurred during which he stated his clear prefer­ence that employees not join a union at the current time.

72. I also find that Mr. Zappitelli contravened the Act during both the June 1 and June 2, 1995 meetings with staff and based on the numerous posters displayed by him during the meetings and through their prominent postings in the staff areas of the Hotel. Both meetings were captive audience meetings in which Mr. Zappitelli took the opportunity through the poster presentations and his remarks to play on the fears and sensitivities of the employees with respect to unionization. I have also considered the effect that such comments would have on a "typical employee" when assessed in the context of negative remarks made by Mr. Zappitelli such as "only those employees who need a union are the ones who break the rules", "you would be better off giving your money to charity" and misinformation about a "poor chambermaid" who tried to get back her union membership card. The threatening nature of Mr. Zappitelli's remarks is further confirmed by his statement to employees, at the conclusion of the June 2,1995 meeting that he would meet with them everyday, if necessary until they were informed.

73. Although Mr. Zappitelli did not specifically state that employees would be charged for parking or be required to pay for meals and beverages, the message existed implicitly. I have con­cluded that Mr. Zappitelli's responses to Ms. Doherty's questions gave a clear indication that it was likely that the continuation of these benefits was in doubt in the event of certification. Mr. Zappitelli admitted that he had no reason to doubt Ms. Doherty's testimony that if costs went up he would have to cut costs, and that such matters; benefits of free beverages, meals and parking would be "out of his hands". Mr. Zappitelli's sleeve rolling gesture also leads me to believe that he gave the impression, as described by Ms. Doherty, that, if he was backed into a corner by the union, he could be forced to take action such as the withdrawal of privileges currently enjoyed by the Sheraton staff.

74. A similar message was implied in the June 2, 1995 housekeeping meeting. Mr. Zappitel­li's evidence in this regard was not convincing, particularly, since he refused to concede that the cartoon illustration in the "pop machine" poster depicted a man being choked. In contrast Ms. McIntyre and Mr. Doucet admitted that the message being conveyed was that employees would have to pay for beverages, meals and parking if the union was certified. It is also evident that Mr. Zappitelli deliberately misled employees about how pop-machine proceeds were allocated at the comparator union hotel, and thus, employees were left with the wrong impression that proceeds were taken by the union instead of the allocation to an employee training fund pursuant to the terms of the applicable collective agreement. The "Deductions Alert" poster, particularly when considered as part of the package, also reinforces the the link that deductions of such employee benefits could occur upon certification. I further find that this poster, despite a denial by Mr. Zap­pitelli, specifically targeted the Sheraton's seasonal summer staff. The explanation given that the reference to summer staff (which was highlighted in black bold lettering) was a typographical error does not seem plausible, particularly in the circumstances where it only seems logical that Mr. Zap­pitelli would want the message conveyed to both seasonal and full-time employees.

75. With respect to the announcement of the expansion of benefit eligibility, I am not con­vinced that it was coincidental to the organizing campaign. Although Mr. Zappitelli and Ms. McIn­tyre testified that the benefit eligibility expansion was an agenda item from the Human Resources Committee, this announcement was introduced in meetings that focused on the employer's anti-union campaign. The announcement was also posted, thereby making the information available to all Sheraton staff. Even though the announcement does not specifically state that the benefit eligi­bility expansion will occur, it is clear that the Sheraton intended to seek the expanded eligibility requirements upon renewal of its insurance package. In the context of the union organizing cam­paign, and given the manner in which the benefit eligibility requirement expansion was introduced, I find that this announcement constitutes undue influence within the meaning of the Act. I see no reason to depart from the Board's jurisprudence in this area as noted in Canac Kitchens Limited, (cited above) and The Globe and Mail, [1982] OLRB Rep. Feb. 189.

76. I also conclude that another threat to job security occurred pertaining to the issue of contracting out based on the evidence introduced about the housekeeping wage comparison chart and the "B.E.C.A.U.S.E." memo. Despite the fact that Mr. Zappitelli explained that the missing wage rate for laundry staff at the comparator hotel was due to contacting out, it is clear that he did not assure employees during that meeting that laundry would remain in-house at the Sheraton in the event of unionization. Furthermore, having carefully considered the evidence with respect to the "B.E.C.A.U.S.E." memo, I cannot accept that Mr. Zappitelli was confused and thought that the Union may have prepared the memo. The memo clearly contained a direct threat to job secu­rity which caused concern among employees. In light of the contracting out information previously mentioned at the June 2,1995 housekeeping meeting, the memo could only have reinforced doubt in employees minds about the future of certain positions in the housekeeping department if the Sheraton became unionized. Given the existence of the direct threat to job security, it is also trou­bling that the memo was left posted for a good portion of the day on June 10, 1995, and was not even removed from all of the posted locations until the following day. If Mr. Zappitelli was truly concerned about the memo, I find his decision not to remove it immediately represents a response that is inconsistent with his alleged concern about the memo. Having security spend over two hours investigating the memo before ordering its removal can only be seen as a delay during which the memo would come to the attention of more employees. The Sheraton's motive with regard to the memo are also brought into doubt by the fact that other managers, including Mr. Zappitelli's son (who did not testify), saw the memo posted early in the morning and not only failed to remove it on their own accord, but did not advise Mr. Zappitelli of its existence until noon that day.

77. Similar omission, on the part of management, occurred with respect to the defaced posters which were left posted for a few weeks in constant view. On the basis of the evidence before me I find that management ignored the existence of the derogatory statements about the Union. I find it extremely unlikely that management employees failed to notice the defaced post­ers, given the locations posted, their bright colour and the defaced writing which was blatantly marked on each of the posters. Although Ms. McIntyre saw the defaced posters, her explanation for not reporting them to Mr. Zappitelli was not credible, given her knowledge of her responsibil­ity as a manager to report its existence pursuant to the Sheraton's policy prohibiting the defacing of company property. The failure to remove these posters, in their defaced form, represents another example of management permitting anti-union visual displays to remain in constant view of employees in order to discredit the Union and to attempt to dissuade employees from associating with the Union. Moreover, the defaced posters came into view following the meetings of June 1 and 2,1995 in which remarks were made which have been found to have intimidated or threatened employees in violation of section 65 of the Act.

78. With regard to the petition, I have determined the Sheraton must have assisted in the genesis of the petition and that management provided additional assistance by allowing it to be freely and openly circulated by Mr. Lair and others throughout the Hotel during working hours. In light of my findings pertaining to the conversation between Mr. Alam and Ms. Nicol in early June, 1995 and the conversation between Mr. Zappitelli and Ms. Nicol on June 30, 1995, I can only doubt the credibility of Mr. Alam's testimony that he was not involved in the petition and the testi­mony of Mr. Zappitelli that he was not aware of the petition until the hearing of this matter. Mr. Towne was not called to testify about approaching Mr. Alam, which leads me to draw an adverse inference that Mr. Alam did not exclude himself from assisting in the petition. Similarly, Mr. Zap­pitelli's warning to Ms. Nicol not to divulge information, which I have concluded was information about the petition, confirms Ms. Nicol's understanding that Mr. Zappitelli and Mr. Alam were involved in the petition.

79. I have concluded that Mr. Zappitelli's discussion with Ms. Nicol on June 30, 1995 con­stitutes a violation of section 82 of the Act. Despite concerns raised by the Union about divulging names of witnesses, and my caution to the parties, Mr. Zappitelli called Ms. Nicol into his office on June 30, 1995, and warned her not to reveal confidential information. Having considered the testi­mony of Mr. Zappitelli and Ms. Nicol, the only plausible conclusion I can reach is that Mr. Zappi­telli was warning her about the petition, which was to be the subject matter of her testimony on July 4, 1995. Her reaction was a feeling of nervousness and of being intimidated. I have deter­mined that Mr. Zappitelli intended to and did intimidate Ms. Nicol with respect to her testimony in these proceedings contrary to the protection afforded to witnesses under section 82 of the Act and, he did so in face of the Board's caution.

80. On the basis of all of the evidence before me, I have concluded that the discipline and transfer of Mr. Wilson on May 20, 1995 was motivated, in part because of Mr. Wilson's involve­ment in the Union's organizing campaign. The Board's jurisprudence establishes that the onus lies with the employer to proves on a balance of probabilities~ that the discipline was not motivated or tainted in part by anti-union considerations (see, for example, The Barrie Examiner, [1975] OLRB Rep. Oct. 745 and Tate Andale Canada Inc., [1994] OLRB Rep. June 781). It is also clear that in such cases, the Board must examine the circumstances surrounding an employer's actions to deter­mine if any inferences may be drawn with respect to the true motivation behind the discipline (Tate Andale). Reviewing the evidence as a whole, I am not convinced that the reasons for disciplining Mr. Wilson were wholly motivated due to his altercation with Ms. Piper on May 19, 1995 and the other incidents mentioned in the warning letter of May 20, 1995: There is no doubt that Mr. Wil­son has not been an "ideal" employee during his relatively short employment with the Sheraton. I am not satisfied, however, that the allegations of harassment by Mr. Zappitelli and Ms. Fortuna have been established as motivated by anti-union considerations. Nevertheless, there are a number of circumstances, based on the evidence before me, that contributed to my determination that the May 20, 1995 discipline was driven, in part, by Mr. Wilson's role in the union organizing campaign.

81. First, the insufficiency of the investigation of Ms. Piper's complaint and the failure to allow Mr. Wilson the full opportunity to explain his version of the events, leads me to question the validity of the employer's justification for discipline. Additionally, given the failure of the Sheraton to call Ms. Toth, and based on the testimony of Mr. Balkwell, the weight to be assigned to Ms. Piper's and the Sheraton's characterization of Mr. Wilson's behaviour as threatening is somewhat lessened. Although Mr. Zappitelli may have held concerns about Mr. Wilson, due to his suspicion of Mr. Wilson's criminal record, it was evident from his testimony that he may have over-reacted and jumped to conclusions about unexplained gaps in Mr. Wilson's employment history which did not exist. Secondly, two of the incidents referred to in the final warning letter had not been brought to Mr. Wilson's attention prior to his receipt of the letter, which further causes me to doubt the Sheraton's stated reasons for the discipline.

82. Thirdly, the timing of the discipline and the transfer to the laundry area must be mea­sured against the circumstances of Mr. Wilson's involvement in the Union's organizing campaign. Counsel for the Sheraton described the transfer as not constituting discipline since Mr. Wilson did not suffer a reduction in pay and was not restricted in his contacts with other employees. On the basis of the May 20, 1995 final warning letter, I cannot accept counsel's submission. The letter and the discussion with Mr. Wilson on May 20, 1995 stated in clear terms that he was being disciplined and that he was being transferred to the laundry area pending further investigation. As of the com­pletion of this hearing, the investigation of Mr. Wilson's conduct had not been completed and he remained in the laundry area. In the capacity of laundry detail, Mr. Wilson was under much closer supervision by management not only in physical location, but also in his restricted movement as a laundry staff member as compared to fairly unrestricted movement as a houseman. Although he was not restricted from entering staff areas, he was barred from public areas and guest floors of the hotel. Such restriction is in noticeable contrast to the freedom permitted to Mr. Lair and others in their circulation of the petition throughout the Hotel.

83. My findings with respect to Ms. McIntyre's monitoring Mr. Wilson's union activity through questions of Mr. Overall provides support for the conclusion that an inference must be drawn that part of the purpose of the discipline was to enable management to monitor Mr. Wil­son's union activity more closely. Finally, Mr. Zappitelli's explanation that the investigation of Mr. Wilson's conduct would be completed when the hearing was finished also raises a doubt about the underlying cause of the discipline imposed as alleged by the Sheraton. Even though the Sheraton may have taken some comfort in its decision to discipline for safety reasons by the subsequent attempt by Mr. Wilson to contact Ms. Piper on May 25, 1995, I remain satisfied that the discipline of Mr. Wilson was tainted by his union involvement.

84. Based on my findings above, it is clear that the Sheraton violated sections 65, 67 and 82 of the Act throughout the union's organizing campaign and subsequent to the filing of the applica­tion for certification. The cumulative effect of the various violations of the Act by the Sheraton has resulted in a situation where the true wishes of the employees respecting Union membership can­not be ascertained. In the final analysis, even assuming a representation vote could be an available remedy under section 9.2, I would not have ordered a vote because, based on the nature and extent of violations, I am convinced that the true wishes of employees could not be ascertained. Through the captive audience meetings held by Mr. Zappitelli and the poster campaign, threats, in the face of Union certification, to economic benefits and job security were prevalent. Further, part-time employees were subject to undue influence regarding benefit eligibility expansion. In the midst of such Employer activity and interwoven with numerous disparaging remarks about this Union and unions in general, employees were repeatedly reminded about how to rescind a union membership card. I am also satisfied that the discipline of Mr. Wilson and the targeting of the housekeeping department had a direct impact on the Union's organizing efforts. Also, the viola­tions involving the petition enhance the cumulative nature and effect of unlawful employer activi­ties. Despite the size of the workforce, I am satisfied that Mr. Zappitelli's message about the Union permeated throughout all staff areas of the Hotel, particularly through the the poster dis­play. It is clear that Mr. Zappitelli was of the view that all employees had been given the same information about the Union. Like in Domus Industries (cited above)," the well had become poi­soned". To conclude that only the 30 employees who attended the three meetings of May 12, June 1 and 2, 1995 knew of or learned of the attempts to intimidate or coerce, would in effect ignore the reality of the workplace.

85. Given my findings and legal conclusions, I am satisfied that the preconditions of section 9.2 have been met by the Union. Namely, I have determined that the Sheraton contravened the Act and as a result of such breaches, the true wishes of the employees cannot be ascertained. For all of the reasons stated, I allowed the Union's application for certification under section 9.2 of the Act.