[1980] OLRB Rep. April 409
2050-79-R Christian Labour Association of Canada, Applicant v. Chatham Horticulture Society, Respondent.
BEFORE: Pamela C. Picher, Vice-Chairman and Board Members J.D. Bell and 0. Hodges.
APPEARANCES: W. R. Herridge Q. C. and Henk De Zoete for the applicant; Tim Sargeant and Bill Brown for the respondent.
DECISION OF THE BOARD; April 10, 1980
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section1(l)(n) of the The Labour Relations Act.
The respondent raised a preliminary objection going to the Board's jurisdiction to entertain the application for certification. The respondent contends that by virtue of section 2(c) of the Act, the persons in the proposed bargaining unit are not covered by the Act. Section 2(c) reads as follows:
"This Act does not apply,
(c) to a person, other than an employee of a municipality or a person employed in silvaculture, who is employed in horticulture by an employer whose primary business is agriculture or horticulture."
To determine whether the Board has jurisdiction to entertain the application for certification it must decide firstly, whether the primary business of the Chatham Horticulture Society is horticulture and secondly, whether the employees in the proposed bargaining unit are employed in horticulture.
At the outset of the hearing the parties agreed that the Chatham Horticulture Society, not the City of Chatham, was the proper respondent employer to this application. Accordingly, the clause in section 2(c) relating to municipal employees is not applicable.
The Chatham Horticulture Society is organized under The Horticultural Societies Act, R.S.O. 1970, c. 207 as amended S.O. 1971, c. 50 and S.O. 1975, c. 36. Section 9(1) of the Act sets out the objects of a society organized thereunder and reads as follows:
"The object of a society is to encourage interest and improvement in horticulture,
(a) by holding meetings for instruction and discussion on subjects connected with the theory and practice of horticulture,
(b) by encouraging the improvement of private and public grounds, including highways and streets, by the planting of trees, shrubs and flowers, and by otherwise promoting outdoor art, public beautification, balcony gardening, therapeutic use of horticulture, community gardens and plot gardening;
(c) by interesting youth and others in the study of horticulture by the holding of meetings, field trips, contests and competition and by such other means as the society considers proper;
(d) by holding exhibitions and awarding premiums for the production of vegetables, plants, flowers, fruits, trees and shrubs;
(e) by the distribution of seeds, plants, bulbs, flowers, trees and shrubs in ways calculated to create an interest in horticulture; and
(f) by promoting the protection of the environment with appropriate horticulture projects; and
(g) by promoting the circulation of horticultural information through all available media including periodicals and provision of books for libraries."
Jack Dekker, one of three full-time employees in the proposed bargaining unit, gave evidence as to the nature of his duties and responsibilities for the Society which vary somewhat according to the season. The first four weeks of the spring/summer are generally spent planting flowers throughout the City of Chatham in approximately 100 flower beds, 150 patio boxed and 38 planter boxes. Dekker and the other employees in the proposed bargaining unit maintain and water these flowers throughout the summer. As well they cut grass approximately three times a week, maintain trees, repair walkways in parks which have been damaged over the winter and spring, and, when necessary, prepare newly acquired properties through such means as plowing and seeding. Dekker testified that at J-C Gardens, a public park in Chatham, his duties further include picking up garbage in the garden area and maintaining an ornamental pool and fountain. Three or four years ago Dekker was involved in building two retaining walls in J-C Gardens to keep soil from eroding onto the garden pathways.
In the fall Dekker and the other full-time employees bring in stock plants. Through the winter they carry out a program of plant propagation in the greenhouses for which seeds are planted, seedlings transplanted, cuttings taken and root stalks reproduced. In the winter months as well they assess their seed requirements and order the necessary stock. Additionally, the Chatham Civic Centre has numerous indoor plants which are maintained continually by the bargaining unit employees during the winter months. Dekker further stated that in the winter he overhauls existing flower bed plans and drafts new plans for any newly acquired property.
Dekker testified as to numerous duties and projects he's worked on over the years which do not directly involve the planting or maintaining of flowers or trees: He routinely overhauls the motors on the Society's lawn mowers, edgers, rototillers and water pumps. Last year the Society inherited a building which Dekker and another employee spent time renovating to make a workshop and office. Two years ago he assisted in the construction of one of the Society's greenhouses. Another time he installed an electric motor in one of the greenhouses as well as the accompanying electric tubing. Three years ago he made and painted flower boxes and toolboxes. Another year he made picnic tables for use in the parks and gardens maintained by the Society.
Counsel for the applicant union contends that the Board has jurisdiction to entertain the application for certification and that the employees in the bargaining unit do not fall into the section 2(c) exclusion because the primary business of the Society, as reflected in section 9 of the Horticulture Society Act, is not horticulture itself but rather to encourage interest and improvement in horticulture. He contends that the Society's dominant interest is public relations work for horticulture rather than horticulture itself. Secondly, counsel argues that the employees in question are not employed in horticulture within the meaning of section 2(c) but rather are general maintenance workers whose duties and responsibilities go far beyond horticulture. In this regard counsel emphasized their machine maintenance and repair work, renovation activities, work with power saws making flower planters and picnic tables, construction of retaining walls, repairing of walkways, maintenance of an ornamental park pool and picking up of garbage as examples of duties which do not fall into the category of "horticulture".
The meaning of "horticulture" in section 2(c) of the Labour Relations Act was considered by the Ontario Court of Appeal in Re Cedarvale Tree Services Ltd. and Labourers' International Union of North America, Local 183 (1971), 1971 CanLII 341 (ON CA), 22 D.L.R. (3d) 40, sitting on appeal from a decision of the Ontario High Court, Regina v. Ontario Labour Relations Board, ex parte Cedarvale Tree Services Ltd. (1970), 1970 CanLII 300 (ON HCJ), 15 D.L.R. (3d) 413, which was itself hearing an application to set aside and quash a decision of this Board, Cedarvale Trees Services Ltd., [1970] OLRB Rep. Feb. 1305.
In defining "horticulture" for the purposes of interpreting section 2(c) of The Labour Relations Act the Ontario High Court at pp. 416-418 stated as follows:
"I have little difficulty in determining that "horticulture" means gardening and that in the statute it covers every kind of garden and garden work known in Ontario. It includes, among much else, work in ornamental gardens, botanical gardens and arboreta, tree nursery work, the development and care of civilized parks and urban and suburban road-sides, the care of individual shrubs and trees, topiary work, garden design's, landscaping and garden care. But it only includes those functions in connection with gardens of some kind. These views are derived from the dictionaries, from encyclopedias and books on gardening and from the actual gardens and garden work known in Ontario, and from another statute of the Ontario Legislature, The Horticultural Societies Act, R.~.O. 1960, c. 175.
The last statute makes provisions for voluntary horticultural societies in Ontario municipalities. Section 9 makes it clear that the work of such societies relates directly to theory and practice, to "the improvement of home and public grounds by the planting of trees, shrubs and flowers", to outdoor art and public beautification, to the production and distribution of vegetables, plants, flowers, fruits, trees and shrubs. This is as good an indication of the meaning of "horticulture" and the intention of the Legislature in using it, as can be imagined short of an interpretation section.
Applying the above definition of "horticulture" to the facts before it, the High Court concluded at page 419 that the primary business of Cedarvale Trees Ltd. was horticulture because [i]t [stood] ready to do all that [was] required for the care of trees in gardens, parks and used in 'outdoor beautification'." The Court went on to decide that the Cedarvale employees who were employed in horticulture and spent "significant time and effort in the work" fell within the section 2(c) exception.
- On appeal, the Ontario Court of Appeal agreed with the High Court's finding that the primary business of Cedarvale was horticulture and concluded that many, if not all, of the people who fell within the proposed bargaining unit were employed by Cedarvale in "horticulture". In defining "horticulture" itself, the Court of Appeal noted that the word comes from two Latin words: hortus — garden and cultura — culture or cultivation. The Court concluded that, "[a]ccordingly, from ancient times the word has had a connotation involving garden or gardens and, particularly pertinent to the case before it, pointed out that .... the cultivation of trees has always been an integral part of gardening'." The Court of Appeal expressed agreement with the conclusion of the High Court that,
"[t]he necessity for having activity primarily directed towards growth which attracted the majority of the [Labour Relations] Board is not a concept required for the application of the word 'horticulture' in our society. The word can clearly apply to pruning, topiary work, fallow periods, removal of dead trees, plants and vegetables, and to scientific inquiry."
- Applying the definition of "horticulture" developed in these decisions to the facts of this case, the Board cannot but conclude that the primary business of the Chatham Horticulture Society is horticulture. While the Chatham Horticulture Society may hold meetings for instruction and discussion on the theory and practice of horticulture and may spend time and money on the circulation of horticultural information and educational field trips, the Board concludes on the evidence that the primary business of the Chatham Horticulture Society is the beautification of Chatham's public grounds by the planting and care of trees, shrubs and flowers in gardens, pots and boxes. The high priority placed on the actual beautification of public grounds through the cultivation of gardens is evident in section 9(2) of The Horticultural Societies Act which reads as follows:
"A society shall not expend more than one-half of its total annual receipts, other than grants or donations made for specific purposes, upon any of the projects enumerated in subsection 1, except for the purposes of planting trees, shrubs and plants on public grounds and the promotion of outdoor art and public beautification." [emphasis added]
Dekker's uncontested evidence that the main function of the Chatham Horticultural Society is the planting of flower beds in the summer and the propagation of seeds in the winter further supports the Board's conclusion that the primary business of the Chatham Horticulture Society is horticulture.
Turning to the second consideration of whether the employees in the proposed bargaining unit are themselves employed in horticulture, the Board has no choice but to conclude that they are. The evidence is clear that Dekker and the other employees in the proposed bargaining unit spend the major portion of their time in the preparation, planting and maintenance of City gardens, planters, and flower boxes. To this end they prepare the soil, plant flowers and trees and maintain flowers and trees and surrounding grass areas. At the conclusion of the season the garden work continues through the propagating of plants in the greenhouses for use in the public gardens the following year. The maintenance work engaged in by the employees in question clearly occupies a secondary role and does not detract from the conclusion that the employees are engaged in horticulture. The maintenance activities in question are all directed towards horticulture. Dekker's motor maintenance work, for example, is on machines used to prepare and maintain the gardens and grass areas, the greenhouse construction and heating installation is directed towards improving the Society's ability to propagate and maintain plants in the greenhouses. Counsel for the applicant admitted that the employees do engage in horticulture but asked the Board to conclude that they do not fall within the section 2(c) exception because they are not solely engaged in horticulture. While the Board agrees that the section, being exclusionary in nature, should be strictly construed, the Board is also of the opinion that it would unreasonably stretch the plain meaning of the section to suggest that it requires that employees do nothing other than garden, plant and tree work to fall within its ambit. In this regard we note the conclusion of the High Court in Exparte Cedarvale Tree Services Ltd., upheld on appeal, that the Cedarvale employees who spent "significant time and effort in [horticulture]" [emphasis added] fell within the section 2(c) exclusion.
For the reasons given above, therefore, the Board concludes that it does not have jurisdiction to hear the application for certification because the employees in question fall within the exclusion set out in section 2(c) of the Act.