E-Gardener is a company, which provides lawn and garden servicesthrough an app. The app matches between private and commercialresidence owners (“Owners”) and talented gardeners (“TalentedGardeners”) in Ontario. The Owner, who uses the app, can choosefrom a variety of options to describe the work they are looking forand/or browse through the list of Talented Gardeners subscribed tothe app, check their ratings and reviews, previous work, and choosewho they would like to hire. The app may also make recommendationfor “the perfect match” Talented Gardener based on the descriptionof work. The Owner is then required to complete a detailedquestionnaire on the app, which upon completion generates acustomized contract for the Owner and Talented Gardener to signonline. A final non-refundable quote is also generated by the app.Once the Owner consents to the terms of contract and the price, theTalented Gardener may either accept or reject. The Owner then hasto pay in full through the app; the Talented Gardener gets 70% andE-Gardening 30% of each transaction. Some Talented Gardeners ownsmall gardening businesses or work for others and use the app foradditional income. As per the terms signed by each TalentedGardener upon subscribing to the app, Talented Gardenrs are all“independent contractors”, responsible for acquiring tools thatmeet safety regulation and for obtaining liability insurance. Inaddition to around 2,500 Talented Gardeners, who offer theirservices through this app, E-Gardening employs in its Torontooffice: 30 product development employees, 5 product managers, 10marketing & sales employees, 20 employees in Customer Servicesand 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 howE-Gardener is treated him and his work buddies. His neighbour,Khadija is a product development worker at E-Gardener and she hasbeen unhappy as well (“long hours, hard work, no respect”, shesays). Together they decide to turn to Unifor (the “Union”) forhelp in organizing their workplace. Unifor Local 222 files anapplication for certification with the Ontario Labour RelationsBoard (the “Board”) as the exclusive bargaining agent of “allemployees of E-Gardener in Ontario, including Talented Gardenerswho subscribed to the app, product development workers, marketing& sales employees, customer services and communicationsworkers, employees in data science & analytics and humanresources employees”. The Union estimates that the bargaining unitincludes 2,585 employees and provides the Board with 40% signedcards (all by Talented Gardeners but 3, Khadija and her 2 friendsfrom the human resources department). E-Gardener files its responsesubmitting that: (1) the Talented Gardeners are “independentcontractors” who cannot organize under the Ontario Labour RelationsAct; (2) even if they can, it would not be appropriate to includethem together with the other workers from the Toronto office; (2)product managers should be included because they “have no authorityto fire anyone and only direct the work of product developmentworkers; they may provide input on disciplinary action, which isoften followed but not always”; (3) human resources employeesshould be excluded because “they might start working on salariessoon as we plan to terminate our contact with an external payrollservice company”. E-Gardener estimates that the appropriatebargaining unit should include only 85 employees, with only onevalid signed card of Khadija.
On the same day, the President of E-Gardener Ariel calls Khadijaand then Braydon to an “emergency” one-on-one meeting. Based onwhat she hears from them, Ariel decides to give all workers(including independent contractors) a one-time bonus of $200. Shealso sent out an email to all workers to let them know that theyare looking “deeply into changing things for the better and wouldwelcome any suggestion that does not include unions because unionsmean bad blood and no turning back”.
A few weeks later, the Board ordered that a certification votewould be held in E-Gardening and a hearing is scheduled for laterto determine the appropriate bargaining unit. The vote is held.Although the votes are not counted yet, as the Board had todeliberate on the appropriate bargaining unit, Khadija is prettycertain the Union will lose the vote. She therefore instructs a fewfriends at the human resources department to take long lunch breaksand a few friends at the customer services and communications torespond to calls but not emails.
QUESTION: If the Union loses the vote, whatcomplaint can the Union file with the Board? What will the Unionargue? What would E-Gardener argue? What do you think the Boardwill decide? What remedies it may award?
