United Food and Commercial Workers International Union, AEL-CIO-CLC v. Mar-Brite Foods Co-operative Inc., 1994 CanLII 9969

[1994] OLRB Rep. March 270

3555-93-R United Food and Commercial Workers International Union, AEL­CIO-CLC, Applicant v. Mar-Brite Foods Co-operative Inc., Responding Party

BEFORE: K. G. O'Neil, Vice-Chair, and Board Members W. H. Wightman and K. Davies.

APPEARANCES: Michael KIug and John Fuller for the applicant; Barry Brown for the responding party.

DECISION OF K. G. O'NEIL, VICE CHAIR AND BOARD MEMBER K. DAVIES; March 9, 1994

1This is an application for certification in which there are two outstanding issues: are the employees the union seeking to represent employed in agriculture and, if not, should the bargain­ing unit include seasonal workers when the application was not brought "in season"?

2The facts outlined below, which are not substantially in dispute, are based on the evi­dence of Hector Delanghe, the co-op's secretary treasurer, and Don Fuller, a union organizer.

3Mar-Brite is a co-operative owned by 285 apple farmers and 14 tomato farmers, located near Leamington, Ontario. Its members' farms are situated from Windsor to the Quebec border. The members are bound together by agreements which describe the quantity of shares each owns and the obligations of the producer to supply, and the co-op to purchase product. Individual farm­ers, rather than the co-op are responsible for the cost of transporting product to the co-op. Shares are not transferable on the open market; they may be returned to the co-op for future purchase from the co-op by another producer. Each farmer, regardless of the size of shareholding, has one vote. These arrangements are considerably different than many arrangements with commercial canneries where the farmer is not able to require the purchase of his product, and/or is not obliged to supply. The co-op has been recognized as an agricultural co-op by the federal government for funding and taxation purposes, because of the fact that it is owned by farmer producers.

4Mar-Brite is the only plant in Ontario that squeezes and cans apple juice. Other plants squeeze the juice and tanker it out to be canned in the States to be brought back for sale in Ontario. The co-op also cans tomatoes and tomato juice. Except for a small orchard around the plant, all the orchards and farms supplying product to Mar-Brite are geographically separate from the plant property.

5Mr. Delanghe grows both tomatoes and apples and gave evidence about aspects of his farming operation, which in his view includes the processing functions performed at Mar-Brite. Making juice from apples is the largest part of Mar-Brite's work, and Mr. Delanghe explained that he also does juice or cider making on his farm. It is because of the high cost of pasteurizing equip­ment that the farmers formed a co-op to make the juice, which has a longer shelf life than cider. Juice is made from apples which do not have the appropriate size or quality for table apples, which are prepared directly for market on the farm, and are not part of Mar-B rite's operation.

6For the twenty years prior to 1991, Mr. Delanghe sold his juice apples to a company known as Olinda Foods. When it became clear that it was in receivership and going bankrupt, and he stood to lose a local place to process his product, Mr. Delanghe and other farmers banded together to form a co-op. They were then eligible for federal funding to assist with both the pur­chase and operation of the co-op. They bought the Olinda Foods plant and continue to operate it as a cannery. Olinda, because it was not a producer owned outfit, was not eligible for the same type of federal funding.

7Four employees originally from Olinda, who had been hired to operate it for the receiver, stayed on to manage the canning operation for the co-op. Three of those are still with the co-op. The directors and shareholders of the co-op are not involved in the day-to-day operation of the co-op, but the five managing directors may be there once a week or more to keep informed. During pack season, Mr. Delanghe for example, would spend five to ten hours a week at the can­nery. Communication with the cannery increases in general during pack season, as farmers call to schedule their delivery of produce.

8In the area of labour relations, they give advice to the Production Leader, Gerry Dericks, but are not involved in day-to-day management of the employees. The co-op employs approx­imately 15 people year round, and about 50 in pack season, which generally lasts from early August to early December. Because there is traditionally a shortage of Canadians available for packing jobs, seven to thirteen of these have been Mexican workers whose employment is arranged through a program associated with the federal Immigration Department. Fluctuations in the labour force outside of pack season are short-lived and related to rush orders or perhaps replacement for sickness or vacation.

9The work the employees do is centred around a conveyor belt canning operation, and the work for the seasonal employees is similar to that of the year-round employees.

10The union's witness gave evidence that there are at least two canneries in Ontario who have bargaining units which include all employees, and do not exclude seasonals. The evidence did not indicate whether the applications were brought during packing season or not. There was an application for certification for Mar-Brite employees by the current applicant which was made and withdrawn in the fall of 1993, during pack season. The employee complement at the time was in the vicinity of 35 and the union had approximately 26 cards as their membership evidence.

11As to the process of organizing seasonal workers, Mr. Fuller said that it was hard to convince them that organizing a union was in their interests until they had been back for more than a season or two.

Are these employees employed in agriculture?

12Section 2(b) provides that the Labour Relations Act does not apply to a person employed in agriculture, except as may be prescribed by regulation. There is no regulation applica­ble to Mar-Brite's operations. Thus, if the employees of Mar-Brite are employed in agriculture the application must be dismissed.

13Employer counsel argued that the work of the employees at Mar-Brite should be found to be agricultural. Although they are not doing field work, he says their work is post harvest pro­cessing which is an integral part of the farming operation of each of the farmers who are sharehold­ers in the co-op. It is an extension of the farm. Counsel argues that this is no less a part of the agri­cultural operation than the weighing, grading and waxing of apples on a farm. The fact that the farmers have pooled their resources to let each make pasteurized juice and retain ownership and control, should not change the character of the work, in counsel's submission.

14The fact that the cannery is physically separate from the farms of its owners should not change anything either says counsel. Counsel underlines that it is the nature of the work that must be determinative. The production of food is what agriculture is, argues counsel, and this is part of that. Counsel says that a sensible definition of agriculture includes a range of activities both before and after planting and harvesting, such as the purchase of seeds, weighing and transporting goods. No farmer gets paid until delivery to a market or a consumer. What he does to ready the product for market or consumption is integral to the agricultural enterprise. Counsel suggested that once the farmer turned the product over to someone else, that the work involved with the produce would cease to be agricultural. As long as the work is done by the farmer, or under the producer's control, the Board should consider it to be agricultural. Counsel suggested that the only difference between the juice Mar-Brite sells to a grocery store and the cider a farmer sells at his farm gate is that a number of farmers have gotten together to do the same function as the single farmer with the cider. This is not merely a question of ownership, says counsel, but something which should characterize the work.

15Counsel referred to and distinguished Ontario Tree Fruits Co-operative Limited, [1962] OLRB Rep. March 411, Federal Farms Limited, [1963] OLRB Rep. October 341, and Sunnylea Farms, [1980] OLRB Rep April 530. He noted that, as opposed to the plants in those cases, Mar­Brite processes almost exclusively the product of its member owners. Further, he asks the Board to reject the analysis of those cases to the extent that it suggests that agriculture is limited to the culti­vation of the ground. Counsel submits that there is a false dichotomy in the earlier cases between work in the field and functions involved in preparation for market, all of which are integral to agri­culture. He suggests that the analysis of the Board in Wellington Mushroom Farm, [1980] OLRB Rep. May 813, which goes a long way to dispelling the myth of the bucolic family farm, is prefera­ble. In that case the "industrial look" of the operation did not take away from the fact that the work was agricultural in nature.

16Counsel submits that the fact that the federal government has recognized the co-op as agricultural, producer owned, supports the co-op's argument, since it can be inferred that the rec­ognition of the co-op as eligible for farm financing reflects a policy decision that it is part of the farm.

17Counsel for the co-op argues that one of the policy reasons for the exclusion of agricul­ture from the scheme of the Labour Relations Act is the fact that there is a point in time where the farmer is catastrophically vulnerable to strikes. It is the position of the co-op that this is no differ­ent for the canning end of the operation, which is just as valuable to the farmer as getting the apples off the tree, and is a basis on which the Board should find that this is agriculture.

18The union says that whatever would be the case if the canning were done on the farm, this cooperative is running an industrial canning plant. Its employees are not employed in agricul­ture, says the union; the ownership structure should not determine the result.

19Union counsel says the true test is whether the work is integral to an agricultural operation, as dealt with in Sunnylea Foods, and Federal Farms, both cited above. The most important question, submits counsel is: what do the workers do? There is no dispute that they do industrial, conveyor belt canning work and packing. Cannery workers are not excluded by the Act, nor are employees of co-operatives.

20Further the union argues that the Bill 40 amendments to the Act in 1993 add further elements to the Board's determinations which weigh in favour of the union's position. The amended purpose clause, for example, directs the Board to encourage collective bargaining so as to enhance employees' abilities to negotiate. As well, the legislature has announced its intention to provide a collective bargaining regime for agricultural workers.

21Union counsel suggests that the limit proposed by the co-op, that work ceases to be agriculture when the farmer loses control over the produce, is not clear enough, nor the question the Act poses. The exclusion is not for employees of farmers, but for persons employed in agricul­ture. On the test the employer proposes, grain mills, grocery stores or manufacturers of farm equipment owned by farmers would be indistinguishable from the farm itself for the purpose of the Act. Counsel underlines that the agricultural exclusion was not framed to exclude "agribusiness” and all its works, and that it should be interpreted narrowly in light of the amendments to the Act.

22Union counsel referred to the same cases as employer counsel, and argued that they supported the union's position and should be followed. The union relies on the definition of agri­culture that the Board used in Ontario Tree Farms, cited above.

23The union draws particular attention to the evidence that the farmers are not the experts in canning. They retained the services of the people who ran the earlier Olinda operation in the same plant. Counsel says it is also significant that the co-op is a separate legal entity from the individual farmer, despite the cooperative nature of the enterprise.

24Employer counsel argued in reply that it was important that Bill 40 retained the agricul­tural exemption, and that the legislation being proposed was not a repeal of that exemption, but the creation of an entirely separate regime, a renewed recognition of the necessity of separate treatment for agriculture.

25We agree with employer counsel that the fact that the cannery is physically separate from the farms of its owners is not determinative. Nor is the fact that more than one farmer oper­ates it. Otherwise, a farm with fields physically separate from each other, or owned by more than one person would somehow lose its character. It must be, as both counsel agreed, the nature of the work which determines the result in this matter.

26We have carefully considered the arguments of both counsel as to the appropriate defi­nition of agriculture. We not think it is necessary here to conclusively define agriculture. Both counsel agreed that agriculture included a range of activities, and did not seek to restrict the idea to field employees. Perhaps the most useful test is whether or not the work in question is integral to the agricultural enterprise, a proposition that each counsel seemed to find useful to a greater or lesser extent. This is essentially a line-drawing exercise.

27We are of the view that the facts of this case do not indicate that the employees are employed in agriculture, although they are engaged in the processing of agricultural product. The concept of readying that product for market as part of the agricultural enterprise is one that is not unsound. However, it is clear that the co-op serves as an intermediate market itself, that the indi­vidual farmer does alienate his product at the point of sale to the co-op. The farmer is paid in co­op shares and cash for the product delivered. This supports the idea that the co-op's cannery is a separate and severable enterprise from the farm operation. The ownership by the farmer produc­ers is the only aspect of the facts which can support the exclusion of these employees as agricul­tural. The work itself is indistinguishable from other routinized, conveyor belt work which is clearly industrial, such as bottling or canning any liquid which is not a food produced by farmers. On balance, the view of cases such as Ontario Fruit Trees, cited above, seems correct and applica­ble to these facts. See also paragraph 8 of Sunnylea Foods, cited above. Co-operative ownership by producers, admirable and advantageous though it may be, does not actually convert this cannery, with all its industrial qualities, into an agricultural enterprise.

Should the bargaining unit be "all employee" or exclude seasonals?

28Counsel for the co-op says that we should describe the bargaining unit in terms of the employees who were working when the application was brought since it is the employer's position that the seasonal workers deserve a say in whether they are organized. Since there were none working around the time of the application, it would be unfair to them to sweep them into a bar­gaining unit. Referring to Melnor Manufacturing Limited, [1969] OLRB Rep March 1288, counsel says the Board has an established practice to not include seasonals in a bargaining unit where the application is brought out of season, because they are not there to express their views. Counsel submits that that practice was reaffirmed in Filkon Food Services Limited, [1981] OLRB Rep. May 1771 and R. J. R. MacDonald Inc., [1992] OLRB Rep. February 195. In the latter case, the season had clearly begun, although it was not full season.

29Further counsel argues that the seasonal employees are a distinct group, as many are from out of the country, and have been hired on a fixed term or task. They have far less attach­ment to the workplace than the year round group.

30We are urged to reject the idea that there is any relevancy to the evidence of member­ship in the previous application for certification. The employer is in no position to dispute it or gather information about it. No seasonal gave any support to the application currently before the Board. Membership support in an earlier application should not be able to affect the Board's earlier practice in any event.

31The union, by contrast, says that the applicable Board practice is to certify for all employee bargaining units as a rule. Where a party is seeking to exclude a group, the onus should be on them to justify it, an onus which has not been discharged in counsel's view. Counsel says that it is difficult to see how the Board could find that an all-employee unit was not at least an appropri­ate unit, if not the most appropriate.

32Counsel says that the practice that the employer refers to is really something that hap­pened twice in twenty years, and is not something the Board should follow. As well, union counsel says that more recent cases seem to contradict them. Further, the union argues that any exception to the general policy of all-employee bargaining units should be rethought because it is not grounded in logic or standard Board practice. Although Melnor Manufacturing, cited above, refers to a practice, Filkon's reference is entirely obiter, and there is very little discussion of the issue at all. Further, counsel suggests that this seasonal policy is limited to the tobacco industry.

33Referring to Consumers Distributing Company Limited, [1982] OLRB Rep. Jan. 26, counsel submits the Board found that seasonal employees were not distinct. In Spramotor Ltd., [1976] OLRB Rep. May 215, at paragraph 4, union counsel sees the Board as saying that if there ever was a policy about seasonals, it is gone. That is a clear statement that the Board does not see seasonal bargaining units as appropriate.

34As a matter of principle under section 6, the union suggests there is no justification for the canning industry having seasonals excluded when other industries do not. The union submits that no distinction in community of interest has been demonstrated; the work is identical for sea­sonal and non-seasonal workers. Counsel also observes that the season is fairly long, five months of the year. As well, the Board's longstanding aversion to fragmentation, and the Act's intention to facilitate organization in previously unorganized sectors support the union's position. Counsel refers to Canada Trustco Mortgage Company, [1977] OLRB Rep. June 330 for the latter position.

35The union submits that if the Board has lingering doubts about the potential support among seasonal employees, that it is entirely proper to rely on the evidence filed in support of the earlier application. The seasonals are in need of the protections of collective bargaining, says coun­sel. Bill 40 intended to extend collective bargaining to just this sort of work force, and should not be ignored.

36In reply, counsel for the co-op submitted that seasonal employees in a retail operation are an entirely different problem than seasonals in the tobacco and canning industries. The retail sector does not use offshore workers and special immigration provisions.

37Since 1985, the test utilized by the Board in bargaining unit determinations has usually been the one set out in The Hospital for Sick Children, [1985] OLRB Rep. Feb. 266:

Does the unit which the union seeks to represent encompass a group of employees with a suffi­ciently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer?

As the Board said in General Signal Limited, [1993] OLRB Rep. Nov. 1141, this test represents a change of emphasis, which developed in a context of experience which indicated that many differ­ent configurations could produce viable bargaining structures.

38The test from The Hospital for Sick Children has gone hand in hand with the Board's longstanding and recently reaffirmed aversion to fragmentation. See, for example, Sifton Proper­ties Limited, [1993] OLRB Rep. Oct. 1010, and The Governing Council of the Salvation Army, [1994] OLRB Rep. Jan. 85. When applied to the facts of this case, those tests would indicate that an all employee unit is an appropriate one. Although the seasonals will have some difference in community of interest, it is nowhere near large enough to necessitate a separate unit. There was nothing presented to the Board which would lead us to find that it is not viable. As to serious labour relations problems, none were shown. It was said that the foreign workers were a different problem than seasonal workers in the retail industry, but it was not suggested that their inclusion in an all-employee bargaining unit would pose structural obstacles to harmonious bargaining.

39The practice the Board noted in cases referred to by employer counsel, the "tobacco and cannery exception", is one for which the rationale is not well articulated. In particular, the rationale for having seasonal fluctuations determine appropriateness in canning and tobacco, but no other industry, is lost to history. It is interesting to note that the policy was not used to exclude seasonals in any of the cases cited. In Melnor Manufacturing Limited, cited above, it is used to jus­tify an all-employee unit, albeit on an application brought in season. In none of the other cases cited did either branch of the "tobacco and canning exception" apply, and it was used merely to underline the Board's general practice to make its bargaining unit determinations without regard to seasonal fluctuations, no matter how predictable.

40We are aware that an all employee unit has the effect of giving the more permanent employees the right to decide concerning union representation for the seasonal employees. How­ever, there is no indication in the evidence that the alternatives, which include an application brought in season, but close to its end, would be any more democratic. It might well mean that one year's seasonals decide for the next year's. Throughout the regime of the Labour Relations Act, it is recognized that it is impractical to include the wishes of future employees in a large range of cir­cumstances as a number of cases such as Consumers Distributing, cited above, make clear.

41In sum, we are of the view that the unit the applicant has applied for is an appropriate unit, and that the employer has not demonstrated that it would cause it serious labour relations problems. A certificate will issue to the applicant for its requested unit:

all employees of Mar-Brite Foods Co-operative Inc. in Leamington, save and except supervi­sors, persons above the rank of supervisors, office and clerical staff.

CONCURRING OPINION OF BOARD MEMBER W. H. WIGHTMAN; March 9, 1994

1. It is with regret, and considerable misgivings, that I concur.

2. My regret and misgivings flow from a concern as to the possible consequences for the cannery operation which would not exist even today had it not been for the inventiveness of grow­ers who at once saved a number of cannery jobs while in the process of devising a means of coping with, among others, the high cost of pasteurizing equipment.

3. I believe the Board is entitled to take notice of the virtual disappearance of canneries over the years and the consequent shipping of product to canneries in the United States where value is added and the product returned to Canada for ultimate sale.

4. The initiative of these growers is of a type that will be necessary in the increasingly com­petitive agriculture sector if family-owned farms are to continue to exist. Whether the bargaining unit includes or excludes seasonal employees will be less important than the need for both parties to avoid strikes at critical harvest periods, lest disaster be visited upon all concerned. It is not diffi­cult to envision the employer concluding that negotiations must be brought to impasse at a (rela­tively) non-critical point in the year so that, if need be, a lock-out can be endured.

5. Having expressed those concerns I repeat that the decision is entirely consistent, in my view, with the evidence and the Labour Relations Act.