Question

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”.

A few weeks later, the Board ordered that a certification vote would be held in E-Gardening and a hearing is scheduled for later to determine the appropriate bargaining unit. The vote is held. Although the votes are not counted yet, as the Board had to deliberate on the appropriate bargaining unit, Khadija is pretty certain the Union will lose the vote. She therefore instructs a few friends at the human resources department to take long lunch breaks and a few friends at the customer services and communications to respond to calls but not emails.

QUESTION: 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?

Answer 1

If the Union loses the vote, complaint that the Union can file with the Board and their argument would be that the employees were influenced by the company owners and threatened that if they voted in favour of the union formation, they would be fired from their jobs. This made the employees afraid and they voted against the formation of union. Also they were bribed by the company owners and were given money so that they do not vote for union formation.

E-Gardener would argue in its defense that the entire decision was in the hands of the employees and the company in no manner influenced their decision by threatening them for anything. The money provided to the employees was for their welfare and hard work and was in no way related to stop them from union formation.

In my opinion, the board will decide in favour of the company since there is no such proof that the employees were threatened by the company owners and also influenced them in any manner to vote against union formation. Since it was their own decision, the company was not involved in influencing their decision, hence the board will decide in favour of company. The remedies that the board may award are ensuring that all requirements are properly met and also make sure that the employees are not influenced in any manner by the Union to reconsider their decision. All processes and procedures must be put to place in order to ensure fair and reasonable decisons being made and ethical approach being followed.