Labourers' International Union of North America, Local 607 v. Wilco Landscape Contractors Ltd.
[1997] OLRB REP. NOVEMBER/DECEMBER 1053
2175-96-R; 2254-96-U Labourers' International Union of North America, Local 607, Applicant v. Wilco Landscape Contractors Ltd., Responding Party
BEFORE: Robert Herman, Alternate Chair.
APPEARANCES: John Moszynski, Gino Russo and Tony Neil for the applicant; Peter Maat for the responding party.
DECISION OF THE BOARD; December 4, 1997
1This is an application for certification, arising in the construction industry, and a related unfair labour practice application.
2A number of issues were dealt with previously by the Board, and were the subject of oral rulings, with reasons also provided orally. These applications are now scheduled to resume, to deal with the union's allegation that the employer has committed various unfair labour practices, and its request that it be certified pursuant to the provisions of section 11 of the Labour Relations Act, 1995.
3I am not seized with the remaining matters. The instant decision is issued to set out the various oral rulings previously made by the Board.
4The first issue dealt with the applicability of section 3(c) of the Act. Section 3(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 silviculture, who is employed in horticulture by an employer whose primary business is agriculture or horticulture;
5The Act does not apply to a person who is employed in horticulture by an employer whose primary business is agriculture or horticulture. The responding employer asserted that it was a landscape contractor, with the majority of its work being of a landscaping nature, and that the Act did not therefore apply to it, as it was engaged in horticulture.
6The Board provided the following decision orally at the hearing:
The responding employer relies upon the provisions of section 3(c) of the Act, to assert that it is engaged primarily in the business of horticulture.
It is important to understand what is in issue here. First, it is not asserted by the responding employer that it is engaged in agriculture. Second, section 3(c) of the Act deals with individuals. It is a subsection which deals with whether persons or individuals might not be covered by the provisions of the Act. Third, the test described in section 3(c) is two-fold in nature. To be excluded from coverage of the Act, the primary business of the employer must be horticulture (at least in the circumstances herein, where the employer only asserts that it is engaged in horticulture) and the person in question must himself or herself be employed in horticulture.
Thus, if I were to decide that the primary business of the responding employer was horticulture, then those employees, if any, not actually employed in horticulture would nevertheless be covered by the provisions of the Act, as it states in section 3(c) itself.
Turning to the evidence, in balance I conclude that the primary business of the responding employer is not horticulture. There are several factors or reasons which have led me to this conclusion. Looking at the nature of the projects engaged in by the responding employer, the majority of those projects, numerically, appear to involve only landscaping, and they include projects such as sodding, hydro seeding, and putting in trees. However, the majority of the overall work of the responding employer is not landscaping, nor is it horticulture. This employer is in the business of construction contracting, albeit with a meaningful landscaping component, and even though the trees utilized by the company are grown by the company itself. The employer's business has various components or aspects. In characterizing the nature of the business, one must look to the business in its entirety, and when one does so here, I conclude that the business of the responding employer is one of various types of contracting. Some of its business involves landscaping contracting, some of it involves roads contracting, and some meaningful portion of the business is of a general construction contracting nature.
In seeking business and in performing its business, the employer sometimes engages in general contracting. In those cases, even though its own employees might only do landscaping work, the business that the company is engaged in is one of general contracting, whether it involves landscaping or some other type of work. It is acting as a general contractor, and it subcontracts out various portions of the work. The business the company engages in is not only the landscaping work that some of its direct employees may perform, but the nature of its business is given content and meaning by the totality of what the company does.
The employer asserted in its submissions that it only bids on non-landscaping jobs in order to be able to secure the landscaping component of those jobs. Apart from the fact that there is no evidence of this whatsoever before the Board, even if it were true, on the evidence that is before the Board, I would conclude that the company is still engaging in a business which is not primarily of a horticultural nature. Rather, it is of a construction nature, which has a landscaping component in many, but not all, of the contracts it obtains.
In balance therefore, I conclude that the company is not engaged primarily in the business of horticulture.
Alternatively, even if it is engaged primarily in horticulture, it appears that a significant number of the employees are not themselves employed in horticulture but are employed in construction work, work such as putting up guard rails or wires, breaking up concrete, removing concrete, and building docks. The evidence did not indicate that these employees were also "employed in horticulture" to any meaningful extent. These employees would still be covered by the Act, and the application would still continue. In the result, the application will proceed and will not be dismissed.
7The Board also found that the appropriate bargaining unit was the unit requested by the applicant union in its application, as it was a standard bargaining unit for the construction industry, referring to the ICI sector and all other sectors in the Board area in question, insofar as construction labourers were concerned.
8A representation vote was directed and held, with a number of the ballots cast segregated and the box sealed, pending the resolution of various challenges to the entitlement of certain individuals to vote. The Board next turned to those challenges.
9With respect to the five individuals who were listed on the Voters' List Schedule "A" as #'s 2 (Bakker), 3 (Brink), 10 (Dysievick), 11 (Flint), and 14 (Hogan), the Board ruled that none of them were in the bargaining unit at the relevant time, and accordingly were not eligible to vote. None of them were performing work in the ICI sector on the application date, nor were they working in the other sectors in Board Area #22, the area in question. Accordingly, none of them properly fell within the bargaining unit at the relevant time.
10After this ruling, the responding employer withdrew its challenges with respect to employees #6, 7, 19, and 20 as listed on Schedule "A". This left in dispute employees #4, 5, 16, 17, and 22.
11With respect to employee #5, Alice Cramer, the Board ruled that she did not properly fall within the bargaining unit. She was working in the nursery, pruning trees, and did not fall within a bargaining unit consisting of construction labourers.
12With respect to employee #16, Donald Ladelle, the Board ruled that his ballot would not be counted. On the application date, he was engaged in repairing machinery and vehicles. This work is not commonly associated with construction labourers, and is not generally the work of those in the bargaining unit. Accordingly, he did not fall in the bargaining unit at the relevant time and his ballot would not be counted.
13With respect to employee #4, Leo Chasehuk, the Board similarly ruled that he was not engaged in the bargaining unit at the relevant time, and his ballot would not be counted. He was driving a brushcutter on the application date, which is not work of a construction labourer, and he spent the majority of his time on the application date engaged in this work.
14With respect to employee #17, Chris Leisander, the Board ruled that he did not exercise managerial functions, at the relevant time, and he was an "employee" for purposes of the Act. Although he did have some involvement in hiring, one had to consider all the circumstances. Where to draw the line in construction, with respect to whether an individual is a working foreman properly falling within the bargaining unit, or is to be excluded from the bargaining unit, is a very difficult question, and will always depend on the facts. Given the nature of the business, how it was conducted, the projects involved, their geographical remoteness, and Mr. Leisander's role in the incidents put in issue by the parties, the Board concluded that he had acted as a working foreman, and as such fell properly within the bargaining unit. Mr. Leisander's ballot was therefore to be counted.
15With respect to the final individual challenged, employee #22, Dan Defeo, the Board concluded that Mr. Defeo had not worked on the application date, although he had assisted the employer for some short period that day. He would show up at the yard each day, help load the truck, and wait to be assigned, or wait to be told that there was no work available for him that day. Neither Mr. Defeo or the employer treated his loading of the truck as paid work if he was not assigned to work that day. There was nothing to suggest that anything different happened on the application date, in terms of this arrangement. This was not a question of a waiver, but rather a question of ascertaining the terms and conditions of employment. Although he worked on the application date for some period greater than five minutes, but substantially less than one hour, that arrangement of voluntary work still prevailed. This was the accepted business arrangement at this company. Accordingly, even though he did some work on the application date, it was not paid work and he was not doing so as a paid employee, and was therefore not working on the application date such that his ballot should count.
16After making these various rulings, in the presence of the parties the Board unsealed the box and counted the ballots that were to be counted. There were four votes cast in favour of the applicant and five votes cast against representation by the applicant.
17The parties were given an opportunity to examine the individual ballots, and they agreed that they had no objection to the manner in which the ballots were counted.
18In the result, more than fifty percent of the ballots cast were not cast in favour of applicant, and accordingly the applicant was not certifiable as a result of the representation vote. The Registrar is to destroy the ballots cast in this application.
19Given the results of the vote, it was necessary to proceed with the union's application pursuant to section 11 of the Act, and the related unfair labour practice complaint.
20This matter is referred to the Registrar.