United Food and Commercial Workers International Union v. 570466 Ontario Ltd., 1995 CanLII 10021

Ontario Labour Relations Board

[1995] OLRB Rep. November 1396

2504-95-R United Food and Commercial Workers International Union, AEL, CIO, CLC, Applicant v. 570466 Ontario Ltd., c.o.b. as Niagara Poultry Services, Responding Party

BEFORE: Gail Misra, Vice-Chair, and Board Members J. A. Rundle and P. V. Grasso.

APPEARANCES: Larry J. Fisher, Shawn Haggerty and Billy Krieger for the applicant; Barry Adams and Lou Nieuwland for the responding party.

DECISION OF THE BOARD; November 8, 1995

1. The name of the responding party is amended to read: "570466 Ontario Ltd., c.o.b. as Niagara Poultry Services".

2. This is an application for certification in which the parties have reached agreement on all matters except one and requested that the Board convene a hearing to address that matter. The responding party claims the bargaining unit proposed is comprised of persons employed in the agricultural sector. The applicant is seeking a bargaining unit comprised of all employees of the responding party, with some exceptions, and it is of the view that the employees in question are not agricultural workers. The Board heard the parties' argument regarding this issue on October 30, 1995.

THE FACTS

3. The parties agreed upon the facts and to the extent that we have relied on those facts in reaching our decision, they are outlined below.

4. 570466 Ontario Ltd. ("Niagara Poultry") came into existence in 1983. The two principals of the company are Mr. and Mrs. Nieuwland. Mr. Nieuwland has a background in farming. In 1979 he began to work at Port Colborne Poultry where he is presently employed in a part-time capacity as the Procurement Manager. Port Colborne Poultry is an industrial poultry processor which is organized by the applicant trade union. In addition to operating Niagara Poultry and his employment at Port Colborne Poultry, Mr. Nieuwland owns and operates a golf course and runs a tender fruit farm.

5. Niagara Poultry is a chicken catching service which is operated out of Mr. Nieuwland's home. Ninety per cent of the chicken catching work done by Niagara Poultry is for Port Colborne Poultry, while the remaining ten per cent of chicken catching is done for Cuddy Chicks Ltd. and for L & B Poultry, two other chicken processors. The responding party employs about 25 persons as chicken catchers. Three Niagara Poultry vans pick up employees at their homes or at a central location before midnight every night. The employees, working in crews, are taken to any one of a dozen farms with which the chicken processors have contracts. At the farm, the processor has its live-haul trailer present and the farmer identifies which floor of chickens is ready to be shipped out. Five Niagara Poultry employees go into the barn and begin to catch the chickens by their legs in groups of eight to ten at a time. Dead birds are the farmers' responsibility, and are not removed by the catchers. The groups of caught chickens are taken to the door of the barn where they are handed to another person, usually a Niagara Poultry employee, who "runs" them to the trailer where the chickens are loaded into holding crates by the tractor trailer driver. The drivers of the live haul trailers are provided by the processor, not by Niagara Poultry (and if they come from Port Colborne Poultry, they are members of the applicant trade union). Twelve to 14 chickens are loaded into each holding crate; holding crates are stacked in the trailer, and each truck load carries between 7,200 and 8,400 birds. It takes the crew about four hours to retrieve 15,000 chickens, for two loads. Drivers never enter the barns. Niagara Poultry staff work catching chickens at seven farms per week for Port Colborne Poultry alone.

6. Chicken catcher crews are remunerated on the basis of each 1000 chickens gathered and delivered to the processor unbruised, not moribund and alive. Since the live haul trailer drivers receive bonuses based on the number of live chickens delivered, they have an interest in ensuring that the chickens are caught and crated without undue roughness or stress to the chickens. Live haul drivers are also paid on the basis of how many trips they make. It is therefore in their interest to assist in the loading of the chickens so that the load is completed faster.

7. Farmers can catch their own chickens. However, since the processors offer the chicken catching as a service to make the processor's bid more competitive, the farmers tend not to do the catching themselves. Niagara Poultry does offer farmers vaccination services for the chickens when there are outbreaks of Laryngo. It may offer to clean out a barn when all of the birds die in a barn and the birds must be removed. For the chicken processors, Niagara Poultry offers a chicken checking service pursuant to which a Niagara Poultry employee attends at a farm three or four days before a potential harvesting of the chickens to ensure the chickens have reached the processor's required weight.

8. The applicant union argued that the chicken catching service is simply an extension of Port Colborne Poultry work, and therefore is industrial rather than agricultural in nature. In support of this position, the applicant pointed to the fact that the Niagara Poultry vans are parked at the Port Colborne Poultry facility; potential employees can get Niagara Poultry application forms for employment at Port Colborne Poultry; employees can pick up their pay cheques at Port Colborne Poultry; and, Mr. Nieuwland has an office at Port Colbome Poultry.

9. The responding party posits that employee pay cheques can be picked up at Port Colborne Poultry because Mr. Nieuwland works there half days on Friday mornings, so it may be a convenient location for employees of Niagara Poultry to pick up their respective cheques. Pay cheques are generally sent out on Thursday nights with the lead hands to be handed out to those who are working, and can also be picked up at Mr. Nieuwland's home. Mr. Nieuwland has an office at Port Colborne Poultry as a consequence of his employment there. The Niagara Poultry vans are parked at Port Colborne Poultry for security reasons: they used to be kept at Mr. Nieuwland's golf course, but gasoline was being siphoned out of the tanks at that unsecured location, so the vans are now kept at the Port Colborne Poultry facility. The vans have also been kept at Mr. Nieuwland's home on occasion.

ARGUMENTS

10. The responding party argues that the chicken catching work is simply a harvesting function, integral to the growing of the chickens on the farm. These employees do work which is similar to those who pick tender fruit or tobacco, which labour is often also supplied through an agency. The chicken handling, it is suggested, is a necessary and integral part of the raising of chickens on a farm, a clearly agricultural endeavour. Since it is indisputable that a poultry farm is an agricultural operation, catching the chickens in the barn of the farm is also said to be an integral part of that agricultural operation.

11. In addition, the responding party argues that nothing can be drawn from Niagara Poultry's apparent connections with Port Colborne Poultry. Those connections are conveniences which have been arranged as a result of Mr. Nieuwland's employment at that processor. The responding party points out that there are no connections with the other two processors who are Niagara Poultry customers, so it argues the Board should focus on whether the chicken catching, in and of itself, is part of the agricultural endeavour.

12. The applicant union argues that the whole operation of raising the chickens and their removal are all part of the Port Colborne Poultry enterprise, so it is more akin to an industrial enterprise than to an agricultural one. The union points out that the farmers concerned sign agreements with this processor to get the chicks from Port Colborne Poultry, they agree to raise the chickens to a size determined by the processor, and then the processor pays to have the chickens caught and loaded into the processor's trucks for transportation to the processing plant. The union relies on the fact that Mr. Nieuwland works for Port Colborne Poultry, has an office there, and gets paid for the catching work by this processor. The catchers can seek employment applications at the processing plant and can pick up their paycheques at the processor's facility. The vans which transport the catchers are stored at the Port Colborne Poultry facility.

13. The union argues that since the chicken catchers do nothing that is part of the farming process, they should be treated like the live haul drivers, who also go to the farms and handle the chickens, and, are unionized.

14. In response to the applicant's arguments the responding party argues that the applicant's reliance on the relationship between Mr. Nieuwland and Port Colborne Poultry is misplaced. Mr. Nieuwland and his company have no connections to Cuddy Chicks Ltd. and L & B Poultry, the other two major customers of Niagara Poultry. It is common ground that there is a long enduring practice of food processors having contracts with farmers for the supply of fruit, vegetables or live stock, so the responding party suggests it cannot be argued that the whole process is industrial in nature. The responding party posits that the only issue for the Board to decide is where the line between the agricultural operation and the industrial operation lies. It argues that chicken catching, which is essentially a harvesting function, is integral to the poultry operation and is agricultural because it is work done in the barn to remove the chickens when they are full grown and ready for shipment. There is no argument that the transportation of live stock to the processors is not agricultural in nature.

DECISION

15. The relevant portion of section 2 of the Labour Relations Act states as follows:

16. (1) This Act does not apply,

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

Although the applicant would have been in a position to argue that the employees it is seeking to represent fall under the auspices of the Agricultural Labour Relations Act, it specifically chose not to make that argument. Therefore, this panel has only considered whether the employees in question are persons employed in agriculture or not.

16. The applicant relied on the Board's decision in Sunnylea Foods Limited, [1980] OLRB Rep. April 530, for the proposition that "when a company prepares farm products for market, not as an integrated part of a farming operation, but as a separate commercial operation, then the employees involved are not persons employed in agriculture" (at p. 531). While the Board has taken this view in defining where the line may be drawn between an agricultural and an industrial enterprise, it is important to consider the facts in Sunnylea. In that case the Board was asked to certify the union as the bargaining agent for employees of an egg grading station. Trucks transported the eggs from various farms in the area to the egg grading station where workers washed, candled, graded and packed the eggs, before the eggs were transported out to the company's customers. The Board found the workers were not agricultural workers because the egg grading operation was not integral to the farming operation, but was a separate commercial operation involved in the preparation and delivery of eggs to the market. That case is of little assistance to us because unlike the case before us, Sunnylea dealt with an agricultural product which had already been harvested and shipped to a location away from the farm. The Niagara Poultry employees work in the barns at the farms themselves, actually catching the chickens which have been raised in the barn, and then assisting in loading the caught chickens for transportation to the processor.

17. The Board in Sunnylea quoted from another Board decision, Federal Farms, 63 CLLC Para. 16,293, wherein the Board commented as follows:

……In our opinion the growing and harvesting of the vegetable produce on the farm and the preparation of the produce for market in the plant are readily divisible.

We agree with the panel in that case and are of the view that the growing and harvesting of chickens on the farm are integral to the agricultural enterprise, and, are clearly separate functions from the transportation and later processing of the chickens in preparation for sale to the consumer market.

18. None of the cases provided to us by the parties were precisely on point. However, the cases provided by the responding party generally supported the proposition that where the work performed was integral to the farm operation it would be considered agricultural in nature. If, however, the employer's business was clearly separate, severable and ancillary to the farming operation, then it may not be characterized as agricultural (see Wellington Mushroom Farm, [1980] OLRB Rep. May 813, at p. 819). While it may be argued by the applicant that Niagara Poultry is indeed a separate business, it is clear that it is a business designed to assist the farmer and the processor in the "harvesting" of the grown chickens. It is done on the farm, in the barn where the chickens are raised, and but for the chicken catching activity, the chickens would not get from the farm to any other destination. In that respect the services provided by Niagara Poultry are not different than an employment agency which supplies fruit or tobacco pickers during the harvest season to those farmers who seek assistance in bringing in the harvest.

19. In Spruceleigh Farms, A Division of Canada Packers Limited, [1972] OLRB Rep. Oct. 860, the Board stated that "the breeding, hatching and growing operations ... are all part of the life cycle of a chicken and each forms an integral part of the operation of raising chickens". The Board specifically found that the growing of chickens was part of the business of agriculture within the meaning of section 2(b) of the Act. We have no doubt that harvesting is the natural extension of the process of the growing of the chickens, and is integral to the agricultural operation.

20. Since livestock operations have been subsumed under the rubric of agriculture, we are therefore satisfied that the employees of Niagara Poultry are employed in agriculture, and that the responding party is engaged in an agricultural endeavour.

21. Since the Labour Relations Act excludes from its application persons employed in agriculture, the employees whom the applicant seeks to represent do not have the right to bargain collectively within the framework of this statute. Accordingly, and for the above reasons, this certification application is dismissed.