Kevin Corporan

The applicant union sought certification for a bargaining unit of employees at the respondent's soil preparation business.

The parties disputed whether part-time employees should be excluded from the unit and whether the respondent's operation was excluded from the Labour Relations Act as an agricultural or horticultural enterprise under sections 2(b) or 2(c).

The Board found that the respondent had an established practice of hiring part-time employees during its peak season, warranting their exclusion from the bargaining unit.

Furthermore, the Board determined that the respondent's business of processing natural products into soil for the home garden market was a commercial enterprise, not agriculture or horticulture.

The Board directed that a certificate issue to the applicant.

The complainant union filed a complaint alleging the employer breached the statutory freeze under section 79(2) of the Labour Relations Act by altering employee privileges while a certification application was pending.

The employer and the incumbent union (intervener) argued the Board should not inquire into the complaint because there was a subsisting collective agreement, the certification application was untimely, and the matter should be deferred to arbitration.

The Board held that section 79(2) applies even when there is an incumbent union and declined to defer to arbitration, noting the complainant was not a party to the collective agreement.

The Board also reconsidered its initial ruling and granted the intervener status to participate in the proceedings.