[1989] OLRB Rep. March 259

2007-88-R; 2603-88-U United Food and Commercial Workers International Union, Local 1000A, Applicant v. Hillview Farms Limited, Respondent v. Group of Employees, Objectors; United Food and Commercial Workers International Union, Local 1000A, Complainant v. Hillview Farms Limited, Respondent

BEFORE: S. A. Tacon, Vice-Chair, and Board Members M. Rozenberg and R. Montague.

APPEARANCES: Brain Herlich, Kevin Corporan and Kim Bernhardt for the applicant/complainant; W. J. McNaughton and T. Masek for the respondent; no one appearing on behalf of the objectors.

DECISION OF THE BOARD; March 3, 1989

1. As noted in a decision dated December 21, 1988, the parties remained in dispute with respect to two matters, namely, whether persons regularly employed for not more than twenty-four (24) hours per week should be included in or excluded from the bargaining unit and whether or not the respondent is engaged in the business of agriculture and/or horticulture and so not sub­ject to the Labour Relations Act by virtue of sections 2(b) and/or 2(c) of the Act.

2. As directed, a Board Officer inquired into the employment records of the respondent with respect to whether there existed a pattern of employing persons on a part-time basis. Further, the parties filed an agreed statement of facts, including various exhibits, describing the respon­dent's enterprise. At the hearing on February 16, 1989, the Board heard submissions with respect to both issues. As well, the Board, following representations, directed that a section 89 complaint filed by the applicant in the certification proceeding be set down for hearing on a peremptory basis on March 8, 9, 29 and 31, 1989 (Board File 2603-88-U). In that regard, the Board also directed that the respondent file a written reply with the Board, and copied to the complainant by February 27, outlining its response to Schedule B of the complaint and indicating those material facts on which it relies.

3. The Board next sets out the submissions of counsel in a highly abbreviated form. As agreed, representations did not deal with the Charter. That is, the applicant reserved the right to argue that sections 2(b) and 2(c), if found by the Board to be applicable~ are contrary to the Canadian Charter of Rights and Freedoms. Thus, submissions were restricted to the issues of the part-time employees and whether sections 2(b) and/or 2(c) applied in the first instance.

4. Counsel for the respondent reviewed in detail the agreement on facts and documentary material in support of his submission that the respondent's business was the preparation of soil for sale to the home garden market. It was asserted the respondent's operation largely involved the reproduction, at a faster rate and in a more consistent fashion, of the natural decomposing process. As the company's product was soil, counsel contended that this constituted a segment of the agri­cultural and/or horticultural process and, therefore, was excluded from the ambit of the Labour Relations Act. It was asserted that the fact that the preparation of the soil occurred at the respon­dent's premises rather than the end-user's location was irrelevant. With respect to the part-time issue, counsel submitted that the evidence of the hiring of part-time staff for several weeks during the company's peak period in 1988 was sufficient to warrant the exclusion of this category, at the request of either party, in accordance with Board practice. Cases reviewed and referred to in sup­port included: Ontario Tree Fruits Co-operative Limited (1962), 62 CLLC 1044; McLean-Peister Limited (1962), 63 CLLC 1139; Re Cedarvale Tree Services Ltd., (1971), 1971 CanLII 341 (ON CA), 22 D.L.R. (3d) 40 (Ont. C.A.); Chatham Horticultural Society, [1980] OLRB Rep. Apr. 409; Wellington Mushroom Farm, [1980] OLRB Rep. May 813; Cuddy Chicks Limited, [1988] OLRB Rep. May 468; Spruceleigh Farms, A Division of Canada Packers Limited, [1972] OLRB Rep. Oct. 860; Calvert-Dale Estates Limited, [1971] OLRB Rep. Feb. 58.

5. Counsel for the applicant first dealt with the part-time employee issue. In this regard, counsel reviewed the evidence and submitted that the evidence was not sufficient to constitute a practice. It was noted that the Board had not established a formula for that determination but it was argued that the instant application more closely resembled an isolated instance of hiring part-time employees than an established practice. Cases referred to on this aspect were: Inter-City Bandag (Ontario) Limited, [1980] OLRB Rep. Mar. 324; Hudson's Bay Company, [1985] OLRB Rep. Dec. 1744; Teinspec Inc., [1985] OLRB Rep. May 756. Counsel then reviewed in some detail the evidence with respect to the respondent's operation. It was contended that the respondent bore the onus of establishing the business fell within the ambit of section 2(b) and/or 2(c) and that the Labour Relations Act, as remedial legislation intended to extend bargaining rights, should be inter­preted broadly and any exclusion should be given a restricted meaning. Counsel emphasized that the respondent's operation did not concern a "living, growing organism" but merely the mixing and packaging of one ingredient (the soil) useful for agriculture and/or horticulture in the same way a "tractor" would be useful. Thus, counsel submitted the process was the manufacture and packing of products used in agriculture and/or horticulture rather than those activities themselves and, hence, the enterprise did not fall within the reach of sections 2(b) and or 2(c). In the alterna­tive, if the business was so characterized, it was argued only those few employees actually engaged in the windrow operation (referred to as the "hill gang") should be excluded, i.e., that small part of the enterprise should be severed from the rest. Cases cited were: Ontario Tree Fruits Co-opera­tive Limited, supra; MacLean-Peister Limited,, supra; Federal Farms Limited (1963), 63 CLLC 1213; The University of Guelph, [1966] OLRB Rep. Sept. 394; Sunnylea Foods Limited, [1980] OLRB Rep. Apr. 530; Wellington Mushroom Farm, supra; Cuddy Chicks Limited, supra.

6. In reply, counsel for the respondent asserted the term "practice" did not require that part-time employees be present for all or a specific portion of the year provided, as here, they were, in fact, regularly employed for not more than twenty-four (24) hours per week. With respect to the severability arguments counsel contended the cases wherein a portion of the enterprise was severed concerned situations where the portion so severed was not integral to the operation. In this instance, the production of soil was integral to the respondent's business and constituted all but a small percentage of that business. Hence, it was argued that severance was not an option in the instant circumstances.

7. The facts in this case are not in dispute and are contained in the agreement on facts, the documentary material filed on consent and the Board Officer's report. Hence, the Board need not separately set out its findings of fact but, instead, refers to those facts regarded as relevant as appropriate throughout the Board's analysis of the issues.

8. The Board intends to deal first with the question of the bargaining unit description, that is, whether persons regularly employed for not more than twenty-four (24) hours per week should be in or excluded from the unit. There was no dispute with respect to the Board's practice to exclude part-time employees and/or students employed during the school vacation period where persons in those categories are employed on the certification application date or where the respon­dent has a history of employing such persons: Inter-City Bandag, supra; Hudson's Bay Company, supra; Temspec Inc., supra. Absent either of those circumstances, Board policy would preclude the exclusion of non-existent categories of employees. There is also no disagreement that there is a his­tory of employing students during the school vacation period. Indeed, the parties agreed that stu­dents employed during the school vacation periods should be excluded from the bargaining unit.

9. What is at issue is whether the evidence disclosed in the Board Officer's report consti­tutes a "practice". The report indicates that, in 1988, the respondent employed six persons for the period April 2 to May 13 on a regular basis for not more than twenty-four hours per week. The respondent asserts that is sufficient to constitute a practice, as that term is used by the Board. The applicant disagrees.

10. While the Board policy of excluding part-time employees and/or students employed during the school vacation period is firmly entrenched, there has been virtually no fleshing out or defining of the terms "practice" or "history". In Inter-City Bandag, supra, and Hudson's Bay Company, supra, the Board spoke in conclusionary terms of a "history" of students employed dur­ing the school vacation period and no "history" of part-time employees without indicating the fac­tual basis for that finding. The Board is not doubting the correctness of the finding; it is simply not­ing that those cases are of little assistance in resolving the issue in the instant application as to whether the evidence herein constitutes a "practice". In Temspec, supra, the Board held that a sin­gle instance wherein a former full-time employee was employed on mutual agreement as a part-timer on her return from maternity leave and before she recommenced full-time employment did not amount to a practice. The applicant seeks to portray the instant facts as within the principle expressed in Teinspec, supra. That is, the employment of part-timers occurred only in 1988 and only for a portion of that year. With respect, the Board disagrees.

11. In the Board's view, the term "practice" as used in reference to part-time employees or students employed during the school vacation period is not capable of being given a precise, inflexible definition arithmetically expressed. Nor should the Board seek to approach that question in a mechanistic way. Rather, the Board must look to the nature of the enterprise, including the impact of that type of business on what might reasonably be expected to be the demand for part-time employees or students employed during the school vacation period. The actual numerical evi­dence, i.e., the numbers of such employees, the number of weeks employed etc., is patently rele­vant but must be placed in the context of the enterprise itself. What might be regarded as sufficient use of part-time employees to constitute a "practice" in one enterprise might be insufficient in another. Thus, the Board approaches this issue on a case by case basis, weighing the actual use of part-timers in the context of the operation.

12. In the instant case, while the evidence of the use of part-time employees is restricted to 1988, this must be weighed in the context of the agreed facts which refer to new owners having introduced new operating systems including the use of part-time employees in the 1988 peak period and the expanded use of students. Thus, 1988 was the first year wherein one would expect evidence of part-time employee hirings and, indeed, this occurred. Moreover, in 1988, the part-timers were employed for those weeks representing the peak period in a seasonal operation. Thus, the Board is satisfied that a "practice" exists with respect to the use of part-time employees sufficient to warrant their exclusion from the bargaining unit in conformity with Board practice, where so requested by a party.

13. The Board next turns to the question as to whether the applicant is barred by virtue of section 2(b) or 2(c) of the Act. Those sections read:

14. This Act does not apply,

(b) to a person employed in agriculture, hunting or trapping;

(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;

14. Section 2(b) of the Act has been considered in a number of cases which need not be reviewed in detail herein. While the term "agriculture" is not amenable to precise definition, the characterization of the word in Ontario Tree Fruits Limited, supra, is useful:

A fair summary of these definitions is that agriculture means the cultivation of soil for the pur­pose of producing products for the use of man or beast, but in all events the prime aspect of agriculture is that of production.

It is the nature of the operation which must be considered. Commercial enterprises which involve the preparation of produce for market do not fall within the ambit of section 2(b), albeit the produce may remain in its natural state: Federal Farms Limited, supra. Thus, the trimming, wash­ing, grading and packing of vegetable produce in a plant was not found to be "agriculture": Federal Farms Limited, supra. Likewise, the storing, grading, packing, warehousing and marketing of tree fruits fell outside the section: Ontario Tree Fruits, supra. An egg grading operation where eggs were washed, candled, graded, packed and shipped was found not to be "agricultural": Sunnylea Foods Limited, supra. On the other hand, the fact that the undertaking is highly mecha­nized and is situated in an "industrial type" setting does not alter the character of the operation: Wellington Mushroom Farm, supra; Cuddy Chicks Limited, supra. In those two cases, the growing of mushrooms and a chicken hatchery were encompassed by section 2(b); see also Spruceleigh Farms, supra. Thus, the Board has generally distinguished the actual production of crops or live­stock from the later grading, cleaning, processing, packing and shipping of those products unless those latter functions are also performed by the primary producer itself as an integral part of the growing and harvesting of crops or the raising of livestock: Sunnylea Foods, supra; Federal Farms, supra; University of Guelph, supra.

15. Respondent's counsel focussed on the "preparation of the soil" as descriptive of the respondent's operation and as a definable segment of the agricultural process. Therefore, counsel urges the Board to characterize the enterprise itself as agriculture. The Board does not agree. Rather, in the Board's opinion, the operation is more akin to those commercial enterprises wherein the product is prepared for market: Ontario Tree Fruits, supra; Federal Farms, supra; Sunnylea Foods, supra. The respondent starts with a natural product (manure, wood shavings, saw­dust, leaves, natural top soil, peat moss, black muck, etc.), processes that product (through com­posting, including the addition of liquid nitrogen, pesticide, insecticide, perlite, vermiculite and sand depending on the product category), then screens, packages, stores and ships the end product ("soil", in a broad sense). The respondent's business is not essentially different from the produc­tion of chemical fertilizers in a plant; it is just that the respondent's product is a "natural" or "or­ganic" form of fertilizer destined for the home garden market, usually to be added to or mixed with existing soil in gardens or indoors for potted plants. The documentary material, in particular, makes this clear. That the product ("soil") may ultimately be utilized in an agricultural or horticul­tural enterprise (although the respondent candidly concedes the market is the homeowner or apartment dweller not a large scale agricultural or horticultural operation) does not change the character of the respondent's business to "agriculture". Thus, the Board finds that the enterprise is not agricultural and is not excluded from the scope of the Act by virtue of section 2(b).

16. The Board need not deal extensively with the question as to whether the operation falls within section 2(c), i.e., whether the employees are employed in horticulture by an employer whose primary business is horticulture as, in the Board's view, the analysis is similar. The term "horticulture" was considered in Re Cedarvale Tree Services Ltd., supra, and that definition applied in Chatham Horticultural Society, supra (see paragraphs 11 to 14 inclusive) to sustain a finding that the enterprise therein was covered by section 2(c). In that latter case, the respondent was actively and primarily engaged in the preparation, planting and maintenance of City gardens, planters and flower boxes. Likewise, a landscape gardening and nursery enterprise engaged on a sodding contract was found to fall within section 2(c): McLean-Peister Ltd., supra . In the instant case, however, the respondent's operation is more accurately depicted as the production of organic, natural fertilizer conveniently packaged in a variety of formats for use indoors or outdoors by the home gardener. Therefore, the Board further finds that the enterprise does not fall within the ambit of section 2(c) of the Act.

17. In reaching its conclusion, the Board has not found it necessary to consider the "kitty litter" product or the "aggregates" product which the respondent concedes cannot be character­ized as agriculture or horticulture. That is, the Board has determined that the production of "ma­nure , "top soil" and "potting soil" constitutes a commercial operation which begins with, pro­cesses and then ships "natural" products; the enterprise is neither agriculture or horticulture. Consideration of the "kitty litter" product and the "aggregates" product, however, strengthens the Board's characterization of the respondent's operation as a commercial enterprise rather than agri­culture or horticulture. Given the Board's characterization of the operation, the Board need not deal with the applicant's alternative submissions regarding severability. Finally, given the Board's finding, the Charter argument which was reserved by counsel for the applicant (as noted in para­graph 3 above) need not be considered.

18. Having regard to the foregoing, the Board finds that the certification application is not precluded by reason of section 2(b) or 2(c) of the Act. Further, the Board finds that the bargaining unit description is as follows:

all employees of the respondent in Norwich Township, save and except supervisors, persons above the rank of supervisor, office, clerical, sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation periods.

19. Given the level of membership support enjoyed by the applicant (as found in the December 21, 1988 decision), a certificate shall issue. Board File No. 2603-88-U is referred to the Registrar to be listed for hearing on March 8, 9, 29 and 31, 1989.