Ontario Labour Relations Board

[1980] OLRB Rep. May 717

2150-79-R; 2131-79-U United Brotherhood of Carpenters and Joiners of America, Applicant/Complainant, v. D. Kemp Edwards Limited, Respondent, v. Group of Employees, Objectors.

BEFORE: R. D. Howe, Vice-Chairman, and Board Members E. J. Brady and W. F. Rutherford.

APPEARANCES: D. Wray, J. Nyman and T. Harkness for the applicant/complainant; W. T. Langley and Michael Edwards for the respondent; H. Hunter Phillips for the objectors.

DECISION OF THE BOARD; May 29,1980

1. File No. 2150-79-R is an application for certification. File NO. 2131-79-U is a complaint under section 79 which alleges that the grievor, Tim Winges, was dealt with by the respondent contrary to sections 56,58,61,70 and 71 of The Labour Relations Act. In view of the agreement of the parties that the evidence led before the Board would be applied to both files, the Board consolidated them.

2. The Board finds that the applicant is a trade union within the meaning of section 1(1)(n) of The Labour Relations Act.

3. Having regard to the representations of the parties, the Board finds that all employees of the respondent employed at its plant in Ottawa, Ontario, save and except foremen, persons above the rank of foreman, office and sales staff, and security guards, constitute a unit of employees of the respondent appropriate for collective bargaining.

4. The applicant first applied to the Board to be certified as bargaining agent for employees of the respondent on February 4, 1980. On February 18, 1980, the applicant requested leave of the Board to withdraw that application and, on the same date, filed with the Board the present certification application. On February 19, 1980, another panel of the Board granted leave to the applicant to withdraw the initial certification application. March 5, 1980 was set as the terminal date for the present application which was scheduled for hearing on March 21, 1980. Membership evidence and a petition filed in connection with the initial certification application were transferred to the present application at the request of the applicant and the objectors, respectively. At the hearing on March 21, 1980, the Board disposed of all matters concerning the certification application with the exception of matters relating to the petition. The hearing then adjourned and the application was scheduled for continuation of hearing in Ottawa on April 21, 1980.

5. The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on March 5, 1980, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

6. As indicated above, there was filed with the Board prior to the terminal date a petition consisting of two pages signed by a number of employees in the bargaining unit. The number of signatures on the petition which correspond to signatures of persons in the bargaining unit who signed applications for membership in the applicant is sufficient that the Board, if satisfied on a balance of probabilities that the petition represents the voluntary wishes of those signing it, would exercise its discretion under section 7(2) to direct the taking of a representation vote.

7. The legal basis and effect of petitions and the Board's practice concerning same were explained in Peacock Lumber Ltd., [1979] OLRB Rep. May 423 as follows:

"7. Neither 'statements of desire' nor 'petitions' are mentioned in The Labour Relations Act itself, but they do appear to be contemplated by Rule 48 of the Rules of Practice (R.R.O. 1970 Reg. 551 as amended.) The Board has a long established practice of accepting such petitions and exercising its discretion to order a representation vote where the petition is voluntary, complies with Rule 48, and contains the signatures of a sufficient number of persons who have previously signed membership cards, that there is some doubt whether the union's 'members' continue to support its certification. In Radio Shack, [1978] OLRB Rep. Nov. 1043 (at p. 1046) the Board explained the effect of a petition in the following way:

'16. Having regard to the statutory definition of 'member' and the provisions concerning membership evidence, the Board is satisfied that more than fifty-five per cent of the employees in bargaining unit #1 are 'members' of the union, and that therefore the union may be certified without a representation vote. However, section 7(2) of the Act gives the Board the discretion to order a representation vote where it considers it advisable to do so. The practice of the Board is to exercise this discretion in favour of ordering a representation vote where a sufficient number of the employees, who have been found to be union 'members', subsequently indicate that they no longer wish to support the union. When faced with this 'change of heart', the Board will order a representation vote in order to satisfy itself that, in addition to meeting the statutory membership support requirements, the union continues to enjoy the support of its members.

17. The 'change of heart' will often take the form of a petition or statement of desire indicating that the signatories no longer wish to support the union. There is no specific form required for such petition, but it must comply with the requirements of Rule 48, and clearly indicate the member's change of heart. Typically, the petition in opposition to the union is signed by members who have indicated their support only a few days before. Moreover, while an employee can be reasonably assured that his support for the union will not be communicated to his employer, he may have no such assurance concerning his refusal to sign a petition opposing the union. In these circumstances an employee may sign a petition out of fear that his refusal to do so will be made known to his employer rather than a genuine opposition to the union. It is for this reason that the Board undertakes the enquiry into the origination and circulation of the petition contemplated by Rule 48(5), in order to satisfy itself that the statement in opposition to the union is truly voluntary.

18. The statement of desire filed in opposition to the application bears a sufficient number of signatures which correspond to the signatures of persons in the full-time bargaining unit who signed membership cards that, if proven to be a voluntary expression, will cause the Board to exercise its discretion under section 7(2) of the Act and direct the taking of a representation vote...

8. Rule 48 casts upon the petitioners an onus to call evidence as prescribed by 48(5), and to generally demonstrate that the petition is voluntary. The Board must be satisfied that when the members signed the petition, they were evidencing a genuine change of heart and were not motivated by a concern that their failure to sign would be communicated to the employer, or could result in reprisals. It must be clear that the circulation of a petition is free from the actual, or perceived, influence of management. In this respect the Board takes the same approach as it does with union membership evidence. (See, for example, Veres Wire, [1976] OLRB Rep. July 337 where the involvement in a union organizing campaign of a person reasonably perceived to be managerial, prompted the Board to reject the union's membership evidence because it was not satisfied that 'members' had signed voluntarily.) In Radio Shack, supra , the Board commented:

'24. The Board has long held that there is an onus on a party relying on a statement of desire in opposition to an application for certification to establish that the 'sudden change of heart' by those who have signed for the union and shortly thereafter repudiated the union, represents a voluntary change of heart. The Board recognizes the delicate and responsive nature of the employer-employee relationship and having regard to it, is circumspect in its assessment of the voluntariness of any statement of desire which bears the signatures of employees who have also signed cards in support of the union. The Board's approach to these matters is described in the leading Pigott Motors case, 63 CLLC 16,264 in the following terms:

'In view of the responsive nature of his relationship with his employer and of his natural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously peculiarly vulnerable to influence, obvious or devious which may operate or impair or destroy the free exercise of his rights under the Act. It is precisely for this reason and because the Board has discovered in a not inconsiderable number of cases that management has improperly inhibited or interfered with the free exercise by employees of their rights under the Act, that the Board has required evidence of a form and of a nature which will provide some reasonable assurance that a document such as a petition signed by employees purporting to express opposition to the certification of a trade union, truly and accurately reflects the voluntary wishes of the signatories.'

Having regard to the sensitive nature of the employer-employee relationship, the Board has consistently held that it must be governed by the overall environment in the work place in deciding whether or not the statement of desire represents a voluntary expression of those who signed it. If the evidence establishes that the hand of management has been actively involved in its origination, preparation or circulation, the Board will dismiss the statement. The Board will also, however, dismiss the statement of the evidence establishes that an employee might reasonably suspect the involvement of management and hence be concerned as to whether or not management might become aware of his decision to sign it or not to sign it. (See Morgan Adhesives of Canada ltd. [1975] OLRB Rep. Nov. 813 and the cases cited therein.)"

8. The petition in the present case was drafted by Philippe Collins, a shipper in the bargaining unit who has been employed by the respondent for twenty-seven years. His wife, who is not an employee in the respondent, assisted him in drafting the following heading which she wrote on each of the two sheets filed with the Board:

"We all employees at D. Kemp Edwards Limited of 25 Bayswater Avenue of Ottawa. This is a petition. We don't want any union."

Collins testified that he obtained twenty-one of the thirty signatures (namely, numbers 1 to 5, 7 to 11 and 13 to 23, inclusive) on the petition between 7:00 and 7:30 a.m. on February 8, 1980 in the office of the Head Shipper, Bob Tompkins, on the premises of the respondent. He stated that he positioned himself at a counter in the office about five feet away from Tompkins' desk and showed the petition to employees who came along the passageway behind the counter after they punched in. He asked these employees if they wanted a union or not and told them to sign the petition if they did not want a union. He stated that it is his normal practice to sit by his counter each morning at 6:50 a.m. to talk to the drivers until he commences work at 7:30 a.m. In response to questions by the Board, he stated that Tompkins arrived between 7:20 and 7:25 that morning. Collins also told the Board that Tompkins did not see the petition because when Tompkins arrived, he (Collins) put it back in his pocket. In cross-examination, Collins said: "I wasn't worried that the Head Shipper might see the petition because I had nothing to hide. .. .1 wasn't trying to sign it in such a way as to keep management from knowing about the petition. I would have asked Tompkins to sign it if I thought we needed his signature but we had enough signatures."

9. Counsel for the petitioners also called as a witness Bernard Boudria, an employee in the respondent's shipping yard. He identified his signature as number 12 on the petition and testified that he signed around 7:30 a.m. on February 8, 1980. He further testified that Tompkins was present when he signed and that Tompkins would have seen him sign the petition because Tompkins was at his desk only five or six feet away. Boudria also testified that Tompkins was close enough that he probably would have been able to overhear Collins tell Boudria and other employees: "If you don't want the union, sign here". He further stated that Tompkins "must have seen some of the other employees sign".

10. It was not disputed that Tompkins is a member of management excluded from the bargaining unit. The evidence established that Tompkins has been an employee of the respondent for twenty years and was appointed to the position of Head Shipper only five or six months prior to the hearing. Before his promotion he had been the senior shipper in the yard. Since no new employees were hired to work in the yard after Tompkins became Head Shipper, all of the employees in the yard would have known Tompkins prior to his becoming Head Shipper. On the basis of these facts, counsel for the objectors submitted that it was unlikely that Tompkins would be associated with management by employees. The only evidence before the Board concerning the way in which Tompkins was viewed by employees was the testimony of Boudria who stated: "Mr. Tompkins is my foreman". Michael Edwards, the President of the respondent, described Tompkins as "a supervisor" who is "not in the bargaining unit". In the absence of other evidence concerning this matter, the Board is not prepared to draw the inference suggested by counsel.

11. Although Edwards testified that the area in which the petition was signed would be in a general state of confusion at 7:30 a.m. and that there could be ten or fifteen people in a rather small area, he was not present in the area at the time the petition was being signed and, therefore, is not in a position to assist the Board in determining what actually occurred that morning. While the presence of Tompkins was innocent in the sense that he was merely at his normal work place at his normal time, we find that his presence under the circumstances created a situation in which management may have unintentionally influenced some of the employees who signed the petition. As noted in Winson Construction Limited, [1976] OLRB Rep. Nov. 714; 77 CLLC ¶16,064, at para. 10, "[t]he Board has consistently refused to exercise its discretion and direct the taking of a representation vote where it feels that employees may have been influenced to sign a statement by the action of management even if that influence may have been unintentional." (See also Imperial Paving Company Limited, [1966] OLRB Rep. July 253.)

12. In view of the contradictory evidence of the two persons who testified on behalf of the objectors concerning crucial factual matters in relation to the voluntariness of the signatures on the petition, the Board adopts and applies the following passage from N. Weingarten, [1969] OLRB Rep. Oct. 849, para. 5:

"There were two persons that testified on behalf of the group of employees and we find that their evidence was contradictory with respect to a number of facts concerning the circulation of the statement of desire. We are satisfied from the demeanor of the witnesses that neither fabricated testimony, but that they had either forgotten or were mistaken with respect to a part or parts of their evidence. It is therefore difficult to determine which part or parts of the evidence presented is reliable and accordingly we are not prepared to accept the evidence with respect to the statement of desire as casting doubt on the evidence of membership filed."

Thus, the Board finds that the objectors have not proved on a balance of probabilities that the petition represents the voluntary wishes of the employees who signed it. In view of this finding, it is unnecessary for the Board to deal with the other submissions made by counsel concerning the petition.

13. Accordingly, in the exercise of its discretion under section 7(2) of the Act, the Board declines to direct the taking of a vote. In the result, therefore, the Board repeats the finding in paragraph 5 hereof that it is satisfied, on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on March 5,1980, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

14. A certificate will issue to the applicant.

15. The grievor, who had been a lathe and shaper operator in the employ of the respondent for three and one half years, was discharged by the respondent on February 12, 1980. As noted above, it is contended that this discharge was in violation of the Act.

16. The respondent has been a family owned and operated business for fifty-six years. Edwards testified that apart from the organizational campaign of the applicant which gave rise to the present application for certification, there has been no previous union organizational activity to the best of his knowledge.

17. The grievor testified that he first became interested in forming a union on July of 1979 at which time he and Rick Ferrier, another employee of the respondent, contacted the applicant. The first meeting with the applicant was held on August 23, 1979 and was attended by five employees of the respondent, including the grievor. At that meeting the grievor decided to join the applicant and thereafter began to attempt to sign other employees into the applicant.

18. Edwards testified that he first became aware of union organizational activities in late August when some union literature was distributed in the lunchroom. In response to this literature which included a notice of a union meeting to be held at 5:00 p.m. on August 30, 1979 at an Ottawa hotel, which notice was posted on the bulletin board in the employees' lunchroom, Edwards, with the approval of his lawyer, personally distributed to each employee the following pamphlet which he asked each of them to read:

"NOTICE TO EMPLOYEES IN THE FACTORY, MILL AND YARD

You are going to be asked to attend a meeting to know if you wish to join a union or not.

You will be asked to pay an amount to join the union and sign a union card so that you may have a collective bargaining unit to deal with management. If this is the wish of the majority of employees then management will have to accept this but if you would like the opportunity to deal with management directly there are some things to be considered.

The last year has not been a good one for the construction industry yet our firm has tried to maintain a competitive wage in light of economic circumstances. Our firm has yet to lay off any employees. As conditions improve, so naturally would the wages.

Under our present arrangement [sic] if dissatisfaction over wages exists the employee has the right and opportunity to go directly to management to discuss his grievance. Under a union agreement the employee pays monthly dues to be bound by a written agreement which will regulate the terms of employment.

In the past we have enjoyed a good employee — employer relationship with many benefits flowing to both sides.

The Management

D. KEMP EDWARDS LIMITED"

Edwards explained that he distributed this document to each employee individually because he felt it to be important that all employees should see it and because it was too late in the day to effect notice by posting it in the lunchroom as the employees would have no reason to return to the lunchroom after the afternoon break.

19. Approximately five employees, including the grievor, attended the union meeting on August 30, 1979 to discuss grievances and methods of signing up additional members. After returning from a vacation, the grievor and Ferrier continued to attempt to sign more employees into the applicant. They also prepared and distributed to employees the following written response to the aforementioned notice distributed by Edwards:

"NOTICE TO EMPLOYEES IN THE FACTORY, MILL AND YARD

Please consider and protect your future at D. Kemp Edwards. Learn and understand the real difference between a union and a non-union shop and then use your own judgment on the basis of real facts to help decide your own future situation here. Let's consider them now.

Without a union, you will save $12.00 a month union dues. Without a union you may deal directly with management as individuals, and strike up your own deal. Without a union you are not bound by any written or binding agreement signed by your union representative. While considering these facts please understand management's position. Running a company the size of D. Kemp Edwards is a responsible and difficult task. The management deserves our respect and understanding, as we deserve theirs.

There are unreasonable, over powerful union organizations that would close your employer's doors in bankruptcy — if you let them. God forbid this should happen. We are not in favor of over powerful union people any more than we are of an intimidating company management.

This United Brotherhood of Carpenters and Joiners of America AFL-CIO-CLC is your organization, represented by your elected employee representatives, picked by you from within your own group. Union management in this case acts only as a guiding hand in negotiations. All agreements must be accepted by your own local representative and ratified by a majority of the members.

The employees that are attempting to start a union at D. Kemp Edwards believe that with a little common sense, a good agreement for the employees and a fair and reasonable contract that management can live with, may be struck all in the same bargain. This union is not out to bankrupt the time-honored firm of D. Kemp Edwards. This would be to no one's benefit.

Please understand that as a group our bargaining power would be greatly increased. We should expect to achieve some basic fringe benefits like company paid O.H.I.P. premiums (a common practice in both union and non-union companies today). Also, we hope to achieve at least a reasonable wage increase in close pace with the inflation rate.

The law protects your rights to apply for union membership, and prevents an employer from discharging any employee because he has applied for union membership. The Labour Relations Act Sec #3 says 'Every person is free to join a trade union of his own choice and to participate in its lawful activities.' R.S.O. 1970, c. 232,s. 3. Also, please note the law under section #56. 'No employer or employer's organization, and no person acting on behalf of an employer or an employer's 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, but nothing in this section shall be deemed to deprive an employer or his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.' R.S.O. 1970, c. 232,s. 56.

Please consider these facts and use your own good judgment to decide your future position at D. Kemp Edwards.

Thank you for reading this."

20. During the first half of November, 1979, an employee brought the document set forth in the previous paragraph to the attention of Edwards, who, after reading it, went into the plant and asked Winges: "Can I speak with you a minute, Tim?" They then walked together to the kitchen near the main office area. Edwards explained that he chose to meet with Winges, whom he knew to be "a leading supporter of the union", in the kitchen because his (Edwards') office consists of partitions which do not reach the ceiling. He stated that he could not speak with Winges in the plant because the noise level there makes it difficult to hear. Thus, he indicated that it has been his practice to meet with employees concerning confidential matters in the kitchen. At that meeting, Edwards placed the union document on the table and asked if the union activity was still continuing and how far it was going to proceed. Winges said that the union activities were continuing because there were changes in working conditions which had to be implemented. Winges then briefly explained the employee grievances concerning terms and conditions of employment. Edwards expressed a willingness to consider the grievances with a view to attempting to implement changes which would be beneficial to all concerned. Edwards then complimented Winges on his work efforts and told him that his wage rate was being increased by seventy-five cents per hour (from $6.30 to $7.05). Winges testified that he was the only employee who received a wage increase at that time and also stated: "I think I got the wage increase to keep me quiet in terms of the organization of the union... .It did keep me quiet for a while. I knew it would keep me quiet for a while." During cross-examination, Winges conceded that the respondent has a practice of giving merit increases throughout the year and that none of the other union organizers received an increase. Edwards testified that this increase was given to Winges to raise his rate from that of an assistant bench hand to that of a bench hand. He further testified that three other employees also received increases at that time, in accordance with a decision which Edwards had made a week earlier after discussions with the factory foreman, at a time when Edwards was not yet aware that Winges was a leading union organizer. Although Winges inferred that the increase was an attempt to buy him off, the Board is of the view that the evidence does not support such inference.

21. Winges testified that Edwards also said at that meeting: "If the union gets in, I'll close up doors." In his testimony, Edwards categorically denied making any such threat or statement about what he would do if a union came in and also stated: "When I went to see my lawyer in August, 1979, he advised me of union procedures, my rights and limitations as to what I could or could not say."

22. A week or two later, Winges went to Edwards' office of his own volition and made several suggestions concerning proposed changes in terms and conditions of employment. Edwards listened to the suggestions and told him that one of them (the sick leave proposal) could possibly be implemented at the time of the next general plant wage increase, which Edwards testified usually occurs in May. There was no discussion about unionization at that meeting.

23. Winges told the Board that the applicant's organizing campaign resumed in January of 1980. He called a union meeting at his home on January 19,1980 by distributing circulars, maps and notices. It was at that meeting that the decision was made to apply for certification.

24. Edwards testified that the events which lead to the discharge of Winges occurred on February 11, 1980. Edwards returned to his office that evening between 7:15 and 7:30 and commenced to work at his desk from which he was able to see into part of the plant working area through glass partitions. Two employees, Rick Ferrier and Andre Beauchamp, had been authorized to work that evening on a particular order. Edwards stated that the respondent's policy is that no employee returns to the premises after hours except selected employees who have keys or employees who have been authorized to work on a particular night. One of the night watchmen employed by the respondent is on duty on the premises at all times from 5:00 o'clock in the evening to 8:00 in the morning. The watchmen are employed to provide fire protection, to safeguard the respondent's inventory and to stoke the boiler. For ten minutes of every hour they do a security round during which they punch various security clocks. The remaining fifty minutes of each hour are spent in the boiler room. Edwards testified that to enter the premises after hours, a person without a key would ring the door bell located near the top of the door frame on one of the front doors to the premises. This would cause a bell to ring in the boiler room to summon the watchman. The watchman is advised by management of the names of any employees who have been authorized to return to work on any particular evening.

25. While working at his desk on the evening of February 11, 1980, Edwards observed Winges "over in one corner of the plant, just standing there". He estimated that Winges was about twenty to twenty-five yards from where Ferrier and Beauchamp were working. Edwards then went downstairs to see who had punched in. When he found that Ferrier and Beauchamp had punched in but that Winges had not, Edwards went up to the factory. He met Armstrong, the night watchman on duty that evening, on the way but did not speak with him because Armstrong was two or three minutes into his rounds and was on his way to punch a clock in the central office. (Failure to punch a clock at the proper time triggers an alarm at the office of the security company to which the clock system is wired.) When Edwards reached the place in the plant where Winges was standing, he asked Winges what he was doing. Edwards' evidence was that Winges gave no answer at that time. Edwards then brought him to the general office area and asked him how he had gained access to the plant. Winges said that he had climbed over the fence. It was Edwards' testimony that Winges, when asked again to explain his presence, said that he had come to try to get Armstrong to sign into the union. Edwards testified that Winges gave no other reason for being on the premises. Edwards stated that he was aware at that time that Armstrong was excluded from the bargaining unit for which the applicant had applied to be certified. (It was not disputed that the exclusion of "security guards" was intended by all parties to exclude Armstrong and the other employees referred to by the witnesses as "night watchmen".) Edwards told Winges "not to report for work the following day until further notice". Being concerned to know over which fence Winges had climbed, Edwards went out into the yard and followed a set of footprints in the freshly fallen snow from the plant to a point along the fence at the back of the yard. Edwards subsequently spoke with Armstrong who told him that he had not seen Winges in the plant.

26. After speaking with his lawyer to clarify his position, Edwards prepared and sent by registered mail a letter of discharge to Winges on February 12, 1980 which read.

"This letter is to advise you that your employment is hereby terminated effective immediately. As your [sic] admitted to me last night you climbed over the fence to gain illegal entry to the yard and factory. You had neither permission nor authorization to be on the premises after hours.

Your cheques are enclosed for wages owing to 5 P.M. yesterday together with appropriate vacation pay. Application will be made for refund of pension contributions and a cheque will be forwarded when received."

27. Edwards testified that he is always concerned about the security of the respondent's inventory. Although he conceded that there has not been a recent rash of thefts of inventory by employees, he noted that the respondent has suffered such losses in the past. He stated that he was concerned about the breach of security at the plant by Winges, particularly in view of the implausible reason given by Winges for his presence, namely, an attempt to sign into union membership a person who is excluded from the bargaining unit for which the applicant sought bargaining rights, at a time when, according to Edwards' understanding, all of the union cards had already been signed since the application had already been filed. In response to a question by counsel for the applicant, Edwards stated that he understood the terminal date to be the date by which he had to file lists of employees and specimen signatures. He was unaware that evidence of union membership could be submitted to the Board on or before the terminal date. Edwards also testified that he disbelieved the reason given by Winges because if Winges had wanted to see Armstrong, he could have rung the bell. Edwards suggested that the existence of the bell and its purpose are generally known by employees of the respondent.

28. Edwards conceded that Winges had a good attendance record and had never been suspended or otherwise disciplined to the best of his knowledge. Although he had never posted a written rule forbidding employees to return to the plant after closing, Edwards stated: "One has to assume that if you break and enter, severe action will be taken. ... I didn't feel that it was necessary to put up a notice not to break in." He further stated that in the 1960's, while his father was running the business, a number of employees were discharged for breaches of security. However, he indicated that since he took over the operation of the business in 1974, there has been no breach of security other than the Winges incident to the best of his knowledge. He testified that he discharged three or four other employees in the past year for cause, including intoxication and incompetence. When asked why he did not discharge Winges immediately on the evening of February 11th, Edwards said: "I didn't discharge him on the spot because I knew he was involved in the union. I thought that I should get legal advice that night. I wasn't sure whether I could discharge him or not. I had to assess the situation. I knew that I couldn't change the working conditions. I wasn't fully aware of the ramifications of what that means.

29. Winges testified that he went to the respondent's premises at 7:45 p.m. on February 11, 1980 "to sign up the night watchman and to meet with the boys (Ferrier and Beauchamp) afterwards". He stated that after standing outside the front gate for about twenty minutes hoping to see Armstrong, he walked around to the back of the respondent's property and with very little effort climbed over a ten foot fence which was covered almost completely with snow. He indicated that he did not know whether the night watchmen were included in the bargaining unit because he did not prepare the application for certification and only briefly read the Form 5 posted in the lunchroom. According to his testimony, after climbing over the fence he went to the boiler room to see if Armstrong was there. Failing to find him there, he entered the plant, saw Armstrong and, after introducing himself, spoke to Armstrong for approximately five minutes about their respective jobs. Winges evidence-in-chief concerning this matter was: "I didn't ask the watchman if he wanted to join the union. I was waiting till he let Rick (Ferrier) and Andre (Beauchamp) out the gate. I decided to wait until then because he was on his working hours. His working hours were finished at midnight. I understood that he was going to let Rick and Andre out at midnight.... I decided to wait until he let Rick and Beauchamp out to ask him because at that time I would have been off the premises. The union representatives told me not to sign people up on company property during working hours." Winges' evidence was that he returned to the door through which he had entered after he saw Edwards and stood there to wait until Edwards came up. According to his testimony, when Edwards asked him what he was doing there, he replied: "I'm here to go out with Rick and Andre after and to talk to Mr. Armstrong about joining up with the union." Winges asserted that Edwards was very angry and grabbed him by the coat to escort him to the front door. He also stated that before he left the building, he asked Edwards whether he was going to "close up shop" if the applicant was certified, to which Edwards allegedly responded: "Did I say that?" Winges further stated that he had only gone through the door with the bell once or twice since he commenced employment with the respondent and testified that he did not know on the evening of February 11, 1980 that the bell existed. He claimed that he was totally unaware of any company policy about returning after hours, although he conceded that it would be necessary for an employee to punch in if he returned to work in the evening.

30. The Board has concluded that Winges was not a credible witness, particularly in relation to the events of February 11, 1980. His testimony was marked by lengthy pauses between questions and answers. Moreover, he tended to exaggerate or distort facts. For example, while testifying-in-chief concerning his first meeting with Edwards, he stated: "At that meeting he slapped [the union document] down on the table and said: 'What does this mean? How far is this union bit going to go?"' However, under cross-examination he conceded that Edwards merely placed or tossed the document on the table and said in a non-threatening voice: "What do you know about this? How far is this thing going to go." He also testified-in-chief that no one else received a wage increase in November of 1979 but conceded in cross-examination that his only basis for this statement was that each of the other four organizers had advised him that they had not received any increase. Moreover, Winges was evasive and unresponsive in some areas while under cross-examination, particularly when he was cross-examined as to why he could not have spoken with Armstrong at some other time and location. A number of contradictory responses by Winges also cast serious doubt on his credibility. For example, he stated that Armstrong comes in at 5:15 p.m. but then under further cross-examination admitted this to be untrue. He stated that he only briefly read the Form5 posted in the lunchroom but later conceded: "I probably saw that security guards were excluded from the bargaining unit described in Form 5." He testified that his question to Edwards about whether the latter was still going to close the shop if the union came in was not included in the statement of particulars provided to the respondent by the applicant because it had "slipped [his] mind", but he later changed this answer by saying that although he did tell someone about it, it "just didn't find its way into the letter of particulars". He asserted that Edwards "grabbed [him] on the right shoulder" in the plant on the evening of February 11, 1980, but conceded in cross-examination that Edwards had merely put his hand on his shoulder and guided him in a different direction from that in which he had been going. His evidence also contained serious inconsistencies. For example, he testified that he was not going to discuss the union with Armstrong while on company property, but also suggested that he was going to determine through talking to Armstrong whether he would be interested in the union. He testified that Armstrong would have to step off company property when he opened the gate to permit Ferrier and Beauchamp to exit, but then conceded that the gate opens inwards onto company property. Furthermore, Winges was unable to offer any explanation of his apparent belief that it would be permissible to sign up a watchman while the watchman was on duty if the watchman stepped off company property momentarily in the course of his duties. The grievor also failed to provide a satisfactory answer to the question of why he was attempting to sign only one of the security guards into the applicant and not the others.

31. Edwards, on the other hand, testified in a candid and forthright albeit somewhat nervous manner and his testimony was not in any way shaken under rigorous cross-examination. Accordingly, having regard to the demeanor of these witnesses and the matters set forth in the previous paragraph of this decision, where the evidence given by Winges and Edwards conflicts, the Board accepts the testimony of Edwards and rejects the testimony of Winges. In particular, we share Edwards' disbelief that Winges entered the premises of the respondent on the evening of February 11,1980 to attempt to persuade Armstrong to sign an application for membership in the applicant. Although Edwards was admittedly aware at the time of Winges' discharge that he was a leading union organizer, it is not insignificant that Edwards had been aware of that fact for approximately three months prior to the discharge. Generally, an employer who desires to chill unionization by discharging a union leader, takes such action early in the organization campaign, not five days after the Notice of Application for Certification has been received by the Board at a time when most, if not all, of the membership evidence will already have been gathered. Moreover, Winges testified that Ferrier was "a leading supporter of the union" who was "even more involved (than Winges) in signing up members". However, there is no allegation or evidence that any adverse action whatsoever was taken by the respondent against Ferrier or any other union supporter.

32. On the basis of all the evidence, the Board finds that the respondent has satisfied the burden of proof placed upon it by section 79(4a) to establish on the balance of probabilities that the reasons given for the discharge are the only reasons and that these reasons are not tainted by any anti-union motivation (see Barrie Examiner D71975 OLRB Rep. Oct. 745; and Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299). We conclude that Winges' union activities played neither a major nor a minor role in the respondent's decision to discharge him (see Fielding Lumber, [1975] OLRB Rep. Sept. 665).

33. Even if the reason advanced by Winges were the true reason for his entry onto the premises of the respondent on the evening of February 11, 1980, such conduct is not protected by The Labour Relations Act. Section 62 of the Act provides:

"Nothing in this Act authorizes any person to attempt at the place at which an employee works to persuade him during his working hours to become or refrain from becoming or continuing to be a member of a trade union."

Section 10 empowers the Board to direct an employer to grant a trade union representative access to the property of the employer for the purpose of attempting to persuade employees to join a trade union, but this provision only applies where employees of the employer reside on the property of the employer or on property to which the employer has the right to control access. Thus, even if the reason given by Winges to explain his presence on the respondent's premises were true, the Board would not find his discharge to be in violation of the Act unless, of course, the respondent failed to prove on the balance of probabilities that the true reason for the discharge was the grievor's unauthorized presence on the premises of the respondent and that the discharge was not in any motivated by the grievor's activities in support of the union prior to that evening. As indicated above, the Board finds that the respondent has met this burden of proof in the instant case.

34. Accordingly, the section 79 complaint is dismissed.