[1986] OLRB Rep. February 241
1346-85-M; 1804-85-M Labourers' International Union of North America, Local 506, Applicant, v. Disney Display, Respondent
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members F. W. Murray and C. A. Ballentine.
APPEARANCES: Bois P. Wilson, Tony Neil and Tim Row for the applicant; Richard J. Nixon and Suzanne Duncan for the respondent.
DECISION OF THE BOARD; February 25, 1986
- These are two referrals of grievances to the Board pursuant to the provisions of section 124 of the Labour Relations Act. Section 124(1) provides:
Notwithstanding the grievance and arbitration provisions in a collective agreement or deemed to be included in a collective agreement under section 44, a party to a collective agreement between an employer or employers' organization and a trade union or council of trade unions may refer a grievance concerning the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable,to the Board for final and binding determination.
For the purpose of this section, "employer" is defined in section 117(c) as follows:
In this section and in sections 118 to 136,
(c) "employer" means a person who operates a business in the construction industry, and for purposes of an application for accreditation means an employer for whose employees a trade union or council of trade unions affected by the application has bargaining rights in a particular geographic area and sector or areas or sectors or parts thereof;
The respondent employer in this case takes the position that it does not operate a business in the "construction industry", and that the Board accordingly has no jurisdiction to hear this matter under the provisions of section 124 of the Act. Any recourse to arbitration under the instant collective agreement, being the Exhibit and Display Association of Canada collective agreement first entered into voluntarily in 1972, the respondent submits would therefore be through the provisions of the collective agreement itself, or, if the applicant desires an expedited form of arbitration, through the provisions of section 45 of the Labour Relations Act. It might be added that the respondent also has a "shop" agreement with Local 27 of the Carpenters' Union which deals with the fabrication of the displays in its shop in Toronto, as well as field-installation work by members of Local 27 when required.
- For the purposes of the Labour Relations Act, section 1(1)(f) defines "construction industry" as follows:
(f) "construction industry" means the businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site thereof.
The parties placed before the Board a number of decisions in which the Board has had to consider the meaning of "construction". In Arcan Eastern, [1969] OLRB Rep. Apr. 141, the Board wrote, in dealing with light duty shelving and pallet racking that was bolted to the floor and attached to the ceiling by means of braces and clips, and in finding the installation of these to be "construction":
If ... the pallet racking in this case has become a fixture, it must be considered as part of the building and, in our view, its installation would come within the meaning of the words "engaged in constructing ... buildings" in section i(l)(f) of the Act.
- The question thus is have the pallet racks become fixtures? We have given this matter our careful consideration. It would appear that where an article is affixed to the land even slightly, such article is to be considered as part of the land. The onus is on the party contending that it is a chattel to show that such article was intended all along to continue as a chattel. Sec Blackburn J. in Holland v. Hodgson, (1872) L.R. 7 C.P. 328 at p. 335. See also Anger and Honsberger, Canadian Law of Real Property, C. 9. Having regard to the decision and facts in Stack v. T. Eaton Co., (1902) 4 O.L.R. 335, we are not satisfied that the respondent in this case has met the onus lying on it to show that the racking continued as a chattel. The case relied on by the respondent, Comite Conjoint de I 'Industrie de Ia Construction de Quebec v. Men-Des Inc. 68 C.L.L.C. Paragraph 14,109, would appear to be distinguishable on its facts in that the movables there in question were held in position by their own weight and were not fastened or fixed to the premises. In any event, the present case must be decided on Ontario Law and not that of Quebec, which of course does not embrace the common law. We therefore see no reason for altering our original decision in this matter dated March 7, 1969.
The Board went on to caution, however:
- We wish to make it clear that our decision in this case is not to be construed as carrying an implication that if the shelving had not been affixed to the building the case would not have fallen under section 92 of The Labour Relations Act. We express no opinion on this question, preferring to leave it open to argument in future cases.
In M. G. Burke Investments Limited decision in Board File No. 0640-76-R dated February 28, 1977, the Board, in considering an assortment of jobs not corresponding to the present activity, wrote in general terms:
There are two principal issues to be dealt with in this application before considering the nature of the work which the respondent and its electricians were performing on June 30, 1976, the date of the making of this application for certification. Firstly, whether aspects of the work which was performed by the electricians and electricians' apprentices of the respondent may be considered as work within the construction industry as contemplated by section 1(1)(t). This in turn involves a consideration of whether such work is related to chattels or fixtures. Secondly, if such work is within the construction industry as contemplated by section l(1)(f), whether the respondent is an employer within the meaning of section 106(c) of The Labour Relations Act, that is to say, whether the respondent is a person who operates a business in the construction industry.
For the guidance of the parties the Board sets forth two general considerations concerning whether certain objects become fixtures or remain as chattels. Where an article is affixed to the land even slightly, such article is to be considered as part of the land. The onus of establishing that a given article is intended to remain as a chattel rather than a fixture lies on the party which contends that it is a chattel. See Holland v. Hodgson (1872) L.R. 7C.P. 328, 335; Bain v. Brand (1876) 1 App. cas. 762; Haggert v. Brampton (1897) 1897 CanLII 14 (SCC), 28 S.C.R. 174; and Stack v. T. Eaton Co. (1902) 4 O.L.R. 335, 1 O.W.R. 511. In addition, for a discussion of what constitutes a fixture, chattels which do not become fixtures and chattels which do not become fixtures - see Williams', The Canadian Law of Landlord and Tenant (1973), pps 573-580. In this regard see also DiCastri, The Law of Vendor and Purchaser (1976), pps 21-22.
In City of Toronto, [1978] OLRB Rep. Dec. 1145, the work of the respondent's outside employees was described as follows:
- The applicant and the respondent agreed that the persons who are affected by this application work on the respondent's property and do basically repairing, restoration and remodelling. Examples of their work include layout work, the removal and installation of demountable partitions, hanging doors, attaching hardware, cuffing dutch doors, building forms, repairs to ice rink boarding, building picnic tables, the installation of picket fences, the building and installation of counters, boarding up of sheds and windows, demolition and construction of walls, the installation of drywall, the laying of floor tiles, repairs to furniture and park benches and repairs to city housing.
The Board appeared to find all but the repairs to furniture and park benches and the building of picnic tables to be "construction". The Board made reference to the earlier cases and commented:
- ... Where an article is affixed to the land, even slightly, such article is to be considered as part of the land and work in connection with such an article would fall within the definition of construction industry. Work on chattels, of course, is not work which falls within the construction industry.
Also of some interest, although of no binding effect, are two cases involving the display industry itself. In Disney Display, Board File No. 2000-80-R, released December 24, 1981, the Carpenters' applied for certification under the construction industry provisions of the Act for its usual craft unit of employees involved in the same business of the respondent as is before us now. Early in that application, the Carpenters' Union withdrew its contention that the work was "construction" and asked to have its application converted to a general one. And in I. A. Wilson, [1983] OLRB Rep. July 1080, the Board itself found the business of the employer not to be "construction", although it appears that there the involvement in on-site installation may have been "rare".
- The question of what is "construction", the jurisprudence shows, can be a difficult one where the activity in dispute approaches the border areas of the definition. In that situation, the historical perspective of the parties may be entitled to some degree of weight in the course of the Board making its determination. (Compare the comments of the Board on making "sector" determinations in West York Construction, [1983] OLRB Rep. Dec. 2132.) Here the parties have for some years dealt with each other with respect to employing labourers for the work in question by applying the terms of the Exhibit and Display Association of Canada collective agreement. There has, of course, been in the industrial, commercial and institutional sector province-wide bargaining for the various trades in this province since 1978, with the requirement now set out in section 146 of the Labour Relations Act for a single collective agreement negotiated through the "employer and employee bargaining agencies". Section 146 provides:
146.-(1) An employee bargaining agency and an employer bargaining agency shall make only one provincial agreement for each provincial unit that it represents.
(2) On and after the 30th day of April, 1978 and subject to sections 139 and 145, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (1), and any collective agreement or other arrangement that does not comply with subsection (1) is null and void.
(3) Every provincial agreement shall provide for the expiry of the agreement on the 30th day of April calculated biennially from the 30th day of April, 1978.
The work involved in these grievances was the setting up of displays for the federal government in the Automotive Building during the Canadian National Exhibition. As the respondent points out, if the applicant is correct that this is work in the "construction industry", and cannot demonstrate that the work falls in other than the industrial, commercial and institutional sector, the validity of the Exhibit and Display Association of Canada collective agreement vis-a-vis section 146 of the Labour Relations Act becomes an issue.
The business of the respondent Disney Display is the fabrication and sale of display structures for shows and exhibitions. It now operates as a separate division within a corporate organization, and a second division, Convention and Show Services, exists for the purpose of providing rental items like carpeting and furniture for display purposes. As for the respondent itself, 95 per cent of its product is considered "rental" also, and in those 95 per cent of the cases the respondent assumes the responsibility of properly setting it up or installing it at the site of the display. The framework in most instances is made from an aluminum product, manufactured by an outside supplier, called "octonorm". "Octonorm" comes in individual pieces which lock one into the other and can be built into any shape. At the end of the show, the respondent may decide to "scrap" some of the wooden frames or partitions,but the "octonorm" is generally transported back to the shop for re-use and re-fitting in another display.
For the Automotive Building display which is the subject matter of the instant grievances, the respondent was called upon in the main to provide and erect display walls, islands and cases, a mock-up of a store, two large overhead aluminum crosses from which various types of banners were hung, and pressure-mounted frames from which outside banners could be hung in window apertures. The display panels themselves were in this case supplied by the customer. The reason for the window frames was that the respondent was not allowed to deface any portion of the building's exterior, so that bolting of a banner support to the cement was not permitted. The only exception to that became a large sign over both doorways, which blew down in the wind and had to be bolted into the wall. The wall had to then be "made good", or patched, at the end of the display.
Similarly, no defacing of the building was permitted to its interior as well, and a carpet had been laid to cover the full surface of the floor. This requirement meant that all display structures had to be either free-standing or supported at the top by guy-wires, either running to the mezzanine railing, or, as with the aluminum crosses, hung from the girders in the ceiling. On the evidence, only 30 per cent or less of the structures required such support, and the guy-wires were removed without a trace when the exhibit was over.
It would appear that all of the structures erected by the respondent for the purpose of the display could be moved, with greater or lesser difficulty, into another position on the floor, and with some this actually had to be done. Even the "store", a four-sided structure with grid ceiling used for the actual sale of federal government products, was rotated some 30 feet after it had been erected in place. At the end of the exhibit, all of the display structures were dismantled by the respondent, and removed from the building without a trace, leaving the space free for the next exhibit, of which, for the Automotive Building, there are 15-20 a year. There is never any suggestion that any of these display structures become, in whole or in part, the property of the owner of the building.
The applicant argues that the fixture/chattel distinction is not the whole answer to the question of what is "construction", and points to the language in the definition going beyond a "building", in particular the words "erecting ... a structure", as indicative of the legislative intent in this regard. The applicant points to the Mattagami case, [1970] OLRB Rep. Feb. 1356, involving the assembly of mobile housing units on concrete foundations, for a statement from the Board that the structure need not be permanent. And in any event, the applicant argues, the work done in this case is integral to the building, and is meant to, and does, produce an "alteration" to the "building". More generally, the applicant urges the Board to adopt a purposive interpretation of the statute, and to take into account that the transitory nature of the employment, from exhibit to exhibit, is precisely the kind of situation that the "construction industry" provisions are meant to deal with.
On balance, the Board is not persuaded that it ought to stray too far in this case from the "fixture" versus "chattel" kind of distinction adopted in essence in the Board's jurisprudence to date. We accept, in that context, the argument of the respondent that the word "structure" in section 1(l)(t) is to be interpreted eiusdem generis in that clause, that is, with the connotation of "real" rather than "personal" property. With respect to the present "structures", all of them are moveable parts erected with a view to being dismantled the moment the show is done, and at that point they do in fact vanish without a trace, most of them being reclaimed by the manufacturer (the respondent) for its own use. As well, the designation of them as "chattels" by the Board appears consistent with the practices that have grown up in this industry, and with the existing patterns of collective bargaining that appear to have developed as a result.
On the evidence the Board finds that the respondent is not an employer in the "construction industry", and the section 124 applications are dismissed.