United Food and Commercial Workers International Union v. Wellington Mushroom Farm
[1980] OLRB Rep. May 813
2456-79-R 2457-79-R United Food and Commercial Workers International Union, AFL-CIO-CLC, Applicant, v. Wellington Mushroom Farm, A Division of Campbell Soup Company Ltd., Respondent.
BEFORE: R. O. MacDowell, Vice-Chairman and Board Members C. A. Ballentine and C. G. Bourne.
APPEARANCES: Harold F. Caley and Kevin Corporon for the applicant; C. G. Riggs, D. A. Gendron, P. M. Barkla, H. E. Divine and I. H. Grisdale for the respondent.
DECISION OF VICE-CHAIRMAN R. 0. MACDO WELL AND BOARD MEMBER C. G. BOURNE; May 22, 1980.
This is an application for certification.
The respondent contends that the employees affected by this application are "employed in agriculture" and are therefore excluded from The Labour Relations Act. The applicant argues that the respondent's mushroom growing operation is a manufacturing facility, and should not be regarded as an agricultural endeavour. In order to understand the force of both of these arguments, it will be necessary to examine the respondent's operation in some detail. It should be noted, however, that unless the respondent's employees are excluded from The Labour Relations Act, the applicant union would be entitled to certification without recourse to a representation vote. The overwhelming majority of the respondent's employees have indicated their desire to engage in collective bargaining, and have chosen the applicant union as their bargaining agent.
The respondent's operation is located on a 227 acre plot of land in Prince Edward County near Picton, Ontario. The actual growing of the mushrooms takes place in a large, single storey building constructed of concrete blocks. The building has a floor area of some 136,000 square feet, and resembles a factory, or warehouse, with an adjacent parking lot. The property was acquired, and the building constructed, solely for the purpose of mushroom growing. It has no other use; nor are the respondent's employees engaged in any other activity. All of the employees work at the one location, producing and packaging mushrooms grown by the respondent. There is no involvement with mushrooms grown elsewhere.
Mushrooms are grown in a material called "compost" which is a mixture of hay, straw, corn cobs, gypsum, commercial fertilizer, and sometimes horse manure. Except for a small quantity of hay which is grown on the respondent's land by local farmers working on a sub-contract basis, all of the ingredients for the compost are purchased elsewhere. The various materials are assembled in huge piles (8~ x 81 x 4OO~) on concrete slabs outside the plant, where they are mixed with water and left to stand for about two weeks. The concrete slabs are heated by steam pipes beneath the surface and the material is turned, and mixed periodically to increase exposure to the air. At the end of the two week period the compost is taken inside the building by a front-end loader, and dumped into a self-emptying hopper, connected to a conveyor system. This, in turn, dumps the compost into a series of shallow trays, approximately 5 feet long and 4 feet wide, which are then stacked automatically.
From the "tray line", the trays are taken by a stacker, to a dark, temperature controlled, room holding about 480 trays. The temperature is raised to 150 degrees (Fahrenheit) and, from time to time, the room is infused with steam. This "pasteurization process" kills certain harmful bacteria and fungi, and encourages the growth of beneficial ones. The material is allowed to "condition" at lower temperatures for about five days, so that these beneficial organisms can grow. The trays are then returned to the tray line, where peat moss is mechanically added, the trays are levelled, and mushroom "spawn" (i.e. seed) are automatically injected. All of these operations take place on a moving conveyor line, similar to that used in assembly line factory operations.
Once the mushrooms are planted, the trays are taken by fork lift to the "spawn run room" where, again, the temperature is controlled and monitored. This is where the initial growing takes place. After about 14 days, the trays are moved to one of 14 dark, humid, temperature controlled, "growing rooms". Here they are stacked six high. Each growing room holds 468 trays, and has a catwalk to provide access to the higher trays.
In about 10 days the mushrooms are ready for "harvest". The harvesters go into the room, pull the mushroom out of the ground, cut the root, then sort the roots and mushrooms. The only tool used is a knife.
Following the harvest, the spent compost is stock piled, and either sold to local gardeners, or removed. The rooms are then chemically cleaned in preparation for the next cycle. The respondent's facility operates on a continuous production basis with a five-week cycle.
About half of the mushrooms grown by the respondent are shipped by common carrier to the respondent's soup manufacturing plants, where they become an ingredient in various processed food products. Most of the rest of the mushrooms are packed in smaller containers and sold to retail food stores. A few of the mushrooms are sold locally to members of the public who visit the respondent's location.
The marketing of mushrooms is similar to that of other foodstuffs, although the product is not subject to specific marketing legislation. Mushrooms are treated in the same manner as other "agricultural" products. Both federal and provincial taxing authorities regard the respondent's operation as "farming".
The Wellington Mushroom Farm is a wholly owned Division of Campbell Soup Company Limited ("Campbell's") and, as has already been pointed out, Campbell's provides a market for about fifty per cent of the mushroom crop. The employees working in the mushroom operation have terms and conditions of employment which are virtually identical to those of other Campbell's employees. They have a Campbell's employee identification card and number; they are paid every Thursday by cheque from Toronto; and income tax, unemployment insurance, and Canada Pension Plan contributions are deducted from their gross salary. The company provides sickness, accident and hospital insurance, life insurance, and payments to the workmen's compensation fund. There is an employee saving and stock option plan, which permits employees to purchase Campbell's shares, as well as certain other investments. There is also a retirement, and pension program. These plans are available to the employees in the mushroom operation on the same basis as to the other Campbell's employees.
The internal organization of the mushroom "farm" resembles that of an industrial plant. There is a plant manager and the enterprise is divided into departments, each of which has its own unit manager. There is an office, clerical and marketing staff established in offices on the premises. The employees work on a rotating shift basis, punching time cards as they begin, or end, their working day. The day shift begins at 8:00 a.m. and ends at 4:30 p.m. There is a short coffee break in the morning and the afternoon, as well as a one-half hour lunch break. Inside the plant, there is a cafeteria with vending machines, a microwave oven, tables, chairs and a telephone.
Employees who have passed their ninety day "probationary period" receive nine paid "statutory holidays". Employees working overtime are paid at time and one half. There are regularly scheduled vacations, provisions for bereavement pay and jury duty, and a regularized disciplinary system. There is a joint employer-employee safety committee and a handbook of "plant rules" which are communicated to employees. The managerial structure — from "plant manager" down to "foreman" is reminiscent of a manufacturing operation. Indeed, in recent years, the company has compared its wages to other industrial employers in the area, (Bata Shoe, Proctor Silex, Quaker Oats, etc.), and has indicated to its employees that, in its view, its wages are competitive with these enterprises.
We are satisfied that there is no material difference between the employer-employee relationship in the respondent's mushroom operation, and that of Campbell's manufacturing employees. We are further satisfied that the respondent's production process closely resembles that of a manufacturing operation, and that the economic position of the respondent's employees is similar to that of an industrial worker. Ordinarily, one does not consider a machine repairman, or a fork lift operator, to be engaged in an agricultural endeavour; and whatever one's conception of "farming" may be, it does not usually include a "plant" with adjacent parking lot, assembly line methods of production, rotating shift systems, time clocks or a sophisticated corporate personnel policy. The question before the Board, however, is whether the respondent's employees nevertheless "are employed in agriculture" within the meaning of section 2 of The Labour Relations Act.
The term agriculture refers to the art or science of cultivating the ground, and includes, in a broad sense, the production of plants and animals useful to man. Agriculture encompasses the growing of crops, and the primary production of food, in all its many forms. Agricultural activities can take a variety of forms depending on the characteristics of the particular agricultural product and its market.
The terms "agriculture" and "farming" inevitably conjure up (in the minds of non-farmers at least,) an image of pastoral tranquility — the sturdy husbandman, settling the land and tilling the fields with his family. Historically the farm has been regarded as an institution, not merely a place of employment. The small farmer has been thought to personify the virtues of hard work, enterprise, independence and self-sufficiency. Within this agrarian pre-industrial context, collective bargaining seems entirely out of place.
These pastoral notions are firmly imbedded in the imagination, and suggest a marked, but entirely erroneous, distinction between agriculture and the modern industrial world. The reality is that, in recent years, there has been a rapid shift from an industry characterized by small scale family owned operations, to one increasingly dominated by large, complex, commercial organizations, often taking corporate form. Technological change has revolutionized the farming business. Economies of scale in production and marketing require consolidation, and increasing investment in sophisticated equipment. These economic pressures have prompted the emergence of "agribusiness', and, as in the present case, the development of the "corporate factory farm".
The union contends that the agricultural exclusion first appeared in the late 1940's, and is based upon a traditional view of farming operations. The union argues that the legislature did not envisage the growth of agribusiness, and that accordingly, the term "agriculture" should be restricted to organizational forms more closely resembling those which were in existence at the time the exclusion was first drafted. In the union's submission, only a narrow interpretation of the term "agriculture" will promote the remedial purposes of the legislation. The company, on the other hand, argues that the agricultural exclusion has been preserved each time the legislation was re-enacted or amended, and that in any event, it is not unusual for the legislature to use general language which may subsequently embrace activities which were not envisaged ab initio. Indeed, this may be the very reason why such general language is used. If the scope of the statute is inappropriate or creates an anomaly, it is up to the legislature to amend it; but until it does so, the words must be given their ordinary meaning. It might be observed, moreover, that the meaning of general terms such as "agriculture" or "farming" may change over time — as was recognized by Egbert J. in Hill v. Lethbridge Municipal District No. 25, (1955), 14 W.W. R. (N. 5.) 577 at 588:
..... as in the case of many words, the word 'farmer' is a good exemplification of the fact that over the course of years the meaning of words may alter ... With the application of modern and recent scientific methods and systems to agriculture, it is hardly to be expected that such words as 'farm', 'farmer', 'farming', and 'agriculture' would bear exactly the same meanings as they bore half a century ago ... these terms have, over the years, acquired a different and wider meaning than they had in the past ... so that farming ... now includes many ancillary and incidental activities that our ancestors never dreamed of."
The trade union's position is based upon a purposive interpretation of the statute, and an assertion that there is no logical rationale for excluding employees engaged in agribusiness. These employees are subject to precisely the same economic forces as employees in other sectors of the economy and, in the union's submission, there is no reason why they should not have the same rights and protections as other employees. Counsel reviewed the various arguments which might support the exclusion of farm labourers from the protection of labour relations legislation, (see also: K. Neilson and I. Christie; The Agricultural Labourer in Canada: A Legal Point of View; [1977] Dalhousie Law Journal 330), and noted that few of these arguments are applicable to "agribusiness', and none of them are relevant to the respondent's operation. There being no apparent collective bargaining rationale for excluding the respondent's employees from the legislation, the applicant submits that the legislature could not have intended this result.
Counsel referred to a number of features of agricultural markets which, from various points of view, might make collective bargaining inappropriate. Many farm products are seasonal, and perishable — thus giving a farm workers' union inordinate bargaining leverage in the event of industrial conflict. The workforce may be made up largely of seasonal employees, who travel significant distances, to work for a short period of time. Collective bargaining would be difficult to establish, and perhaps illusory, because of their transitory relationship with any one employer. Conversely, it can be argued that unions have no place in agriculture because of the close involvement of farm employees with the employer's family. Workers may live with the family, as well as work with them. Problems may arise in determining whether members of the family are employed within a potential bargaining unit. Some argue that the unique climatic, and seasonal nature of the industry require maximum flexibility in the disposition of labour so that fixed terms and conditions of employment embodied in a collective agreement (or legislative standards) are inappropriate. Economic vulnerability may also be a factor, if it is feared that farmers are in a tenuous economic position and the impact of collective bargaining would inevitably drive them out of business. Finally, one cannot overlook the nineteenth century image to which we have already referred. If one accepts this image as the reality, one might well conclude that collective bargaining is antithetical to established rural values, and social structures.
None of these arguments apply to an integrated corporate operation such as that run by the respondent. There is no close involvement with the family farm. The production process is not seasonal, but rather, resembles a production cycle. The labour force is neither casual nor transitory. The operation is of considerable size, employing close to 200 employees in a single location with a "factory atmosphere"; and the company is much less economically vulnerable than many other employers to which The Labour Relations Act applies. The respondent has found it convenient to treat the employees on its mushroom farm in precisely the same way as its employees in its manufacturing facilities. Their terms and conditions of employment are virtually identical. The union argues that it would be illogical and inequitable to adopt an interpretation which allowed one group of employees to establish their terms and conditions of employment through collective bargaining, while denying that opportunity to their fellow employees in a related part of an integrated undertaking. Essentially, both operations are "factories" operating in an industrial environment. The union contends that this environment is completely artificial and entirely isolated from the natural environment. The production of mushrooms uses neither sun nor rain. Light, moisture, warmth and even the "soil" in which the mushrooms are grown are produced artificially. It is the manufacturing character of the process which dictates the factory form of organization, and a typical "industrial" employer-employee relationship.
The respondent's reply is both simple and factual. Mushrooms are not manufactured. They are grown. Seeds are planted and are grown by natural processes. It is this natural act of growing which is essential to the respondent's operation, and characterizes it as "agricultural". The environment is rigidly controlled — just as it would be in a greenhouse; but fundamental to the production of mushrooms is a natural organic growing process. The respondent's operation is highly mechanized, but this is typical of modem agriculture, and does not alter the character of the undertaking.
None of the cases to which we were referred are precisely on point; however, their general thrust supports the respondent's position. In Cedarvale Tree Services Limited v. Labourers' International Union Local 183 et al, 1971 CanLII 341 (ON CA), [1971] 3 O.R. 832, the Ontario Court of Appeal, (affirming the views of Wright, J. in the High Court) suggests that terms such as "horticulture" or "agriculture" should be given their "ordinary" rather than a special "collective bargaining meaning". In Re Ontario Mushroom Company Limited et al and Learie et al, (1977), 15 OR. (2d) 77, the majority of the Divisional Court adopted this approach, and found, inter alia , that mushrooms are generally understood to be "vegetables". That case involved a decision of a referee under The Employment Standards Act in which, as in the present case, the uncontradicted evidence suggested that mushroom growing is commonly regarded as a form of farming which produces an edible product marketed in the same manner as other vegetables. In Calvert — Dale Estates Limited, [1971] OLRB Rep. Feb. 48, this Board found that the stationary engineers who operated a boiler system used to heat greenhouses and to pasteurize and sterilize the soil, were employed in "horticulture". The environment in which the plants grew was artificially controlled, but the overall nature of the employer's operation was regarded as "horticultural" even though the functions performed by the employees were not unique to the agricultural sector. Similarly, in Spruceleigh Farms, [1972] OLRB Rep. Oct. 860, an employer, for efficiency reasons, had sub-divided the life cycle of the chicken into three distinct stages, each of which was carried on in a different location. The truck drivers who transported the chickens from the "breeding farm", to the "hatchery", and then to the "growing farm", were held to be employed in agriculture — even though, again, the functions that they performed were not unique to the agricultural sector. The respondent's organization was characterized as a whole, and the role of the truck drivers was regarded as an integral part of that undertaking.
Calvert — Dale Estates Limited, and Spruceleigh Farms Limited, both suggest that a highly artificial or controlled environment, is not sufficient, in itself, to remove an employer's operation from the agricultural sector; nor is it significant that some of the functions performed by the employees are not usually, or necessarily, associated with the cultivation of the soil. It is sufficient if the overall nature of the employer's operation is "agricultural", and the functions performed by the challenged employees are an integral part of that operation. These cases may be contrasted with Federal Farms Ltd. 63 CLLC ¶16,292 or Ontario Tree Fruits Co-op Ltd. 62 CLLC ¶16,235, where the employer's business was clearly separate, severable, and ancillary to a farming operation.
The facts of this case provide a striking illustration of the degree to which economic and technological changes have transformed the agricultural sector. The respondent has accommodated these forces by adopting an "industrial" mode of production and a "factory" form of organization which does not differ in any material respect from a typical manufacturing plant. Indeed, the respondent's mushroom factory employees are in essentially the same position as the employees in its food processing operation, and many of their terms and conditions of employment are identical. The evidence even suggests a single unified and well-developed personnel policy for both groups of employees. Because the respondent is a vertically integrated corporate entity which produces on a S week cycle and "consumes" fifty per cent of its own primary production, it cannot even be said that it is subject to the traditional vagaries of the agricultural product market. We accept the applicant's contention that there is no "industrial relations basis" for denying the respondent's employees the right to bargain collectively, nor can we discern any tangible prejudice to the respondent if the employees in its "mushroom factory" were entitled to the same statutory rights as their fellow employees in its soup factory. The fact remains however, that The Labour Relations Act excludes "agricultural" employees, and it is clear that: mushrooms have been held to be a "vegetable"; mushroom growing is regarded (at least by regulatory bodies) as a "farming" activity; and mushrooms are marketed in the same manner as other farm products. There is a compelling argument for a review of the legislation insofar as it excludes individuals in situations similar to that of the respondent's employees; nevertheless, we are satisfied that the words "employed in agriculture" are broad enough, in their ordinary meaning, to include persons engaged in the growing of mushrooms, in the manner practiced by the respondent. The respondent is engaged in an agricultural endeavor. Its employees are excluded from The Labour Relations Act, and do not have the right to bargain collectively within the framework of that statute. Accordingly~ this certification application must be dismissed.
DECISION OF BOARD MEMBER CA. BALLENTINE:
I agree with the majority decision's review of the evidence and the findings of fact set out there. In particular, I emphasize the characterization of the Respondent's operations, as set out in paragraph 18 of the majority decision. However, in dismissing this application on the basis that the employees are exempt from the Act, the majority decision has adopted an interpretation of the Act which is not, in my view, in accord with the purposes of the legislation.
The majority decision correctly points out that the agricultural exemption is properly applicable to the "family farm" situation. The legislature could not have intended to exclude from collective bargaining persons whose jobs and work environment are indistinguishable from persons employed in industry. The only real difference between the employees of the Respondent and the employees of an employer engaged in manufacturing is the end product of their work. The Respondent's employees produce mushrooms while other employees in the same geographic area, with whom the Respondent has compared wages (see paragraph 17 of the majority decision) produce shoes, appliances, or cereal. Surely it cannot be said that it was the intent of the legislature to deprive employees of the right to engage in collective bargaining simply because they work in a mushroom "factory" rather than a shoe factory.
In my opinion, the Board ought to be at the forefront of expanding the scope of The Labour Relations Act. The agricultural exemption contained in the Act ought to be narrowly interpreted. The Board must give meaning to the legislation with a view to providing employees with the opportunity to engage in collective bargaining if that is their wish. If the Board exceeds its jurisdiction by giving this opportunity to the Respondent's employees who have, by an overwhelming majority, demonstrated their desire to engage in collective bargaining, then the courts will no doubt tell us. In my opinion, the Board ought to have tested the extent of the agricultural exemption in this case.
It may well be that the majority's interpretation of the Act is reasonable and justified based on the existing cases. However, I would have dared to go further, otherwise, these 160 employees are deprived of the right to engage in collective bargaining. They must now await action by the legislature which ought to act to remove this obvious inequity in the statute.