Question

Facts

E-Gardener is a company, which provides lawn and garden services through an app. The app matches between private and commercial residence owners (“Owners”) and talented gardeners (“Talented Gardeners”) in Ontario. The Owner, who uses the app, can choose from a variety of options to describe the work they are looking for and/or browse through the list of Talented Gardeners subscribed to the app, check their ratings and reviews, previous work, and choose who they would like to hire. The app may also make recommendation for “the perfect match” Talented Gardener based on the description of work. The Owner is then required to complete a detailed questionnaire on the app, which upon completion generates a customized contract for the Owner and Talented Gardener to sign online. A final non-refundable quote is also generated by the app. Once the Owner consents to the terms of contract and the price, the Talented Gardener may either accept or reject. The Owner then has to pay in full through the app; the Talented Gardener gets 70% and E-Gardening 30% of each transaction. Some Talented Gardeners own small gardening businesses or work for others and use the app for additional income. As per the terms signed by each Talented Gardener upon subscribing to the app, Talented Gardenrs are all “independent contractors”, responsible for acquiring tools that meet safety regulation and for obtaining liability insurance. In addition to around 2,500 Talented Gardeners, who offer their services through this app, E-Gardening employs in its Toronto office: 30 product development employees, 5 product managers, 10 marketing & sales employees, 20 employees in Customer Services and Communications department, 20 employees in Data Science & Analytics, and 5 employees in the Human Resources department.

Braydon is a Talented Gardener, who is unhappy with how E-Gardener is treated him and his work buddies. His neighbour, Khadija is a product development worker at E-Gardener and she has been unhappy as well (“long hours, hard work, no respect”, she says). Together they decide to turn to Unifor (the “Union”) for help in organizing their workplace. Unifor Local 222 files an application for certification with the Ontario Labour Relations Board (the “Board”) as the exclusive bargaining agent of “all employees of E-Gardener in Ontario, including Talented Gardeners who subscribed to the app, product development workers, marketing & sales employees, customer services and communications workers, employees in data science & analytics and human resources employees”. The Union estimates that the bargaining unit includes 2,585 employees and provides the Board with 40% signed cards (all by Talented Gardeners but 3, Khadija and her 2 friends from the human resources department). E-Gardener files its response submitting that: (1) the Talented Gardeners are “independent contractors” who cannot organize under the Ontario Labour Relations Act; (2) even if they can, it would not be appropriate to include them together with the other workers from the Toronto office; (2) product managers should be included because they “have no authority to fire anyone and only direct the work of product development workers; they may provide input on disciplinary action, which is often followed but not always”; (3) human resources employees should be excluded because “they might start working on salaries soon as we plan to terminate our contact with an external payroll service company”. E-Gardener estimates that the appropriate bargaining unit should include only 85 employees, with only one valid signed card of Khadija.

On the same day, the President of E-Gardener Ariel calls Khadija and then Braydon to an “emergency” one-on-one meeting. Based on what she hears from them, Ariel decides to give all workers (including independent contractors) a one-time bonus of $200. She also sent out an email to all workers to let them know that they are looking “deeply into changing things for the better and would welcome any suggestion that does not include unions because unions mean bad blood and no turning back”.

QUESTION 1) What do you think the Board will hold regarding the appropriate bargaining unit? Apply the relevant tests to determine the appropriate description.

2) If the Union loses the vote, what complaint can the Union file with the Board? What will the Union argue? What would E-Gardener argue? What do you think the Board will decide? What remedies it may award?

3) Are human resources and customer services and communications employees on a strike? If so, is that a legal strike? Can they be disciplined? Explain your answer.

Answer 1

1) What do you think the Board will hold regarding the appropriate bargaining unit? Apply the relevant tests to determine the appropriate description.

A number of workers that are put together for collective bargaining purposes is the correct bargaining unit. Both locations will be used using population of interest research. Therefore, the correct definition is; all staff of the company's manufacturing plants in the specific locations, except and exclude the supervisors, clerical workers and technicians.

2) If the Union loses the vote, what complaint can the Union file with the Board? What will the Union argue? What would E-Gardener argue? What do you think the Board will decide? What remedies it may award?

The Union will sue for unfair trade practices if the Union fails the vote on the credential. The employer will say there are workplace health and welfare issues. The Company may contend that the crock-pot manufacturing line has been discontinued. The board could vote in favor of the company. A second registration vote, a union office and access to the workforce, staff contact details and repayment of the company expenses can be awarded to the Union.

3) Are human resources and customer services and communications employees on a strike? If so, is that a legal strike? Can they be disciplined? Explain your answer.

All workers are on strike. A strike is defined for refusing to work by an organized act of more than one employee. In this situation, because of the dispute with the Organization, the workers do not reach their workplace. Whether the act was a mistake that is not a crime. But to link back to the story where, during a stressful weekend, several workers called out of work for being sick. There are other conditions that the scenario will meet to be called a lawful attack. Of example, the workers must be unionised, a collective deal must not be reached, collective bargaining has collapsed, a strike vote has been taken, and a strike is approved by a majority, and completed a conciliation process.

In this situation, the workers are unionized and a conference was held to discuss the collective agreement in question, implying there is no negotiated agreement present. But, therefore, there was no strike vote or a conciliation procedure concluded, that should not be a legal action. The employer can lodge a lawsuit with the Ontario Board of Labour Relations. When they want to see the staff disciplined. This will require the board to decide if the strike is unlawful. Employers are entitled to subject their employees to discipline.

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