[1985] OLRB RE. April 519
2920-84-U Christian Labour Association of Canada, Complainant, v. Service Employees' International Union, Local 204, v. Beverly Enterprises Canada Limited (formerly Bestview Holdings Limited and Bestview Services Limited), Respondents
BEFORE: Paula Knopf, Vice-Chairman, and Board Members R. W Pirrie and S. 0 'Flynn.
APPEARANCES: W. R. Herridge, Q. C., H. Kuntz and T. Whalen for the complainant; L. A. Richmond and R. Davidson for the respondent union; George Longo for the respondent company.
DECISION OF THE BOARD; April 24, 1985
The style of cause is hereby amended to name the respondents as "Service Employees International Union, Local 204 and Beverly Enterprises Canada Limited (formerly Bestview Holdings Limited and Bestview Services Limited).
This is an application by the Christian Labour Association of Canada (CLAC) under section 89 of the Act alleging violations of sections 49, 64, 66 and 67 and seeking a declaration that a collective agreement purportedly in force between Beverly Enterprises Canada Limited (hereinafter referred to as Beverly Enterprises) and the Service Employees International Union, Local 204 (hereinafter referred to as the SEU) is void. The facts giving rise to this complaint are not in dispute.
Beverly Enterprises operates a number of nursing homes in the province. In the Municipality of Metropolitan Toronto, Beverly Enterprises has two homes. The employees at the home located at 77 Main Street in Toronto are represented by CLAC and covered by a collective agreement. The employees at the home in Etobicoke are represented by the SEU as a result of a certificate issued by the Board in August of 1983. (See Bestview Holdings Limited, [1983] OLRB Rep. Aug. 1250; hereinafter referred to as the Brown decision.) As a result of the Brown decision, a certificate issued granting the SEU the exclusive bargaining rights in the Etobicoke home operated by Bestview. However, the SEU and Bestview then entered into a collective agreement on the 31st day of January, 1984 (hereinafter referred to as the SEU collective agreement) that expanded the right of representation to be as follows:
ARTICLE 2 - RECOGNITION AND SCOPE
The Employer recognizes the Union as the sole collective bargaining agent for all its employees in its nursing homes in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel, York, Durham, and Simcoe, excluding 77 Main Street, Toronto; R.R. #1, Markham; 329 Eagle Street, Newmarket 186 Thornton Road South, Oshawa; and 29t Mississauga Road West, Orillia; save and except registered nurses and graduate nurses, physiotherapists, occupational therapists, supervisors, persons above the rank of supervisor and office staff.
It important to note that at the time of the signing of the SEU collective agreement and up to the date of this hearing, Bestview or Beverly Enterprises operated no homes in the Regional Municipality of Peel. It only has two homes in the Region of York. These are located in Newmarket and Markham and have employees who are represented in bargaining by CLAC. Beverly Enterprises' one home in the Durham region has employees represented by the SEU. Finally, Bestview's one home in the Simcoe region has its nursing staff organized by the SEU and its housekeeping staff organized by CLAC. Thus, it can be seen that at the time the SEU collective agreement was signed for the Etobicoke home, Beverly Enterprises also accorded the SEU voluntary recognition in areas where there were and are no employees or facilities operated by Beverly Enterprises.
There is a long and documented history of rivalry between CLAC and SEU for representation rights of the Beverly Enterprises employees. This rivalry has spawned raids and extensive proceedings before this Board. One of the most volatile actions that has inspired the litigation and antagonism between CLAC and the SEU is the fact that CLAC's collective agreement with Bestview which clearly covers the Main Street location in Toronto and which predates the SEU collective agreement for the Etobicoke home gives CLAC exclusive bargaining rights in Metropolitan Toronto. The inevitable dispute that arose because of the two contracts was litigated before the Board in 1983 and resulted in the Brown decision mentioned above.
CLAC's position in these proceedings is that the voluntary recognition given to the SEU by Beverly Enterprises in these circumstances represents a violation of sections 48(a) and 64 because, insofar as it applies to Peel, York, Durham and Simcoe regions, it occurs at a time when there are either no employees in those regions or there are no employees who are not already covered by existing collective agreements. (However, it is understood by the parties that the recognition clause in the SEU contract does not conflict with the representation rights of CLAC in the homes where CLAC already has established representation rights.) CLAC relies in this complaint on the cases of this Board that have determined that voluntary recognition of a union before employees exist in a bargaining unit constitutes other support that is prohibited by section 48(a) of the Act. We were referred to the following cases: Sunrise Paving and Construction Company Limited, 72 CLLC 16,060 and C. Strauss (1973) Limited, [1975] OLRB Rep. July 581. Counsel for CLAC also pointed out that an exception to those cases exists in the construction sector that was established in Nicholl-Radtke and Associates Limited, [19821 OLRB Rep. July 1028; M. I. Gutherie Construction Limited, [19841 OLRB Rep. Jan. 50 and F.D. V. Construction Limited, [19841 OLRB Rep. May 719. However, counsel for CLAC argued that the exception created by the Nicholl-Radtke and following cases was unique to the construction industry and completely inapplicable to this situation. With regard to the Brown decision, CLAC argued that it was wrongfully decided and not to be followed.
The purpose of CLAC's application is to have the recognition portion of the SEU 1984 collective agreement declared void insofar as it purports to grant voluntary recognition to a union over a unit of employees before the unit of employees exists. It was argued that the only possible motive of such recognition must be to give SEU a preference over CLAC, given the context to the unions' prolonged competition. CLAC states its interest in obtaining this declaration at this time is to enable it to carry out an effective organizing campaign in these areas in the event that Beverly Enterprises obtains and operates homes there. It was submitted that without such a declaration, CLAC would be forced to organize in the face of an existing collective agreement with the SEU and that that would make CLAC's organizational campaign unnecessarily too difficult. The Board was requested to restore fair competition at the earliest date.
This application was strenuously opposed by the SEU. By way of preliminary objections, it was submitted that although CLAC was seeking to have the collective agreement between the SEU and Beverly Enterprises declared invalid, it was clear that CLAC does not represent any of the employees covered by that SEU collective agreement. Further, it was pointed out that no union and no employees are affected or have interests to protect as a result of the SEU collective agreement. Thus, it was argued that CLAC has no status to bring this complaint and that the complaint merely raises a moot point of law. The Board was urged not to deal with such an issue until and unless actual rights could be affected when a new home is opened in one of the relevant areas. The Board was referred to the cases of Amoco Fabrics Limited, [1983] OLRB Rep. Mar. 314 and Kodak Canada Limited, [1977] OLRB Rep. Aug. 517. In alternative submissions, counsel for the SEU also argued that this case ought to fail on its merits because of the Board's established practice of allowing parties to expand bargaining rights that were more narrowly defined when the certificate was granted (United Brotherhood of Carpenters and Joiners of America, [19781 OLRB Rep. Aug. 776). It was also submitted that the Sunrise Paving case, supra, deals with the question of the creation of a bargaining unit as opposed to the situation in this case which would deal with changing the scope of an existing unit. In any event, it was suggested that the Board ought to wait deciding upon this issue until CLAC, or any other union, could establish that it represents even one employee covered by the purported SEU agreement because the issue is merely academic at this time.
In reply, CLAC stressed the practical interest it has in obtaining a declaration that the expanded scope of representation is void because, without such a declaration, CLAC would face tremendous organizing difficulties.
The Decision
This Board is sensitive to the difficulties and expenses parties face when they feel compelled to embark on a course of action without the benefit of the foreknowledge as to the Board's viewing such conduct or actions. But this Board cannot and should not put itself in a position of deciding academic or hypothetical questions in the abstract. This is important because without the benefits of a full factual background and the opportunity to hear from the very parties who may be affected by the decision, the Board would be unable to do justice to the issues. Also, the Board would be over-burdened with applications and would be placing itself in the position of giving advice rather that fulfilling its adjudicative function.
Courts have consistently declined opportunities to decide hypothetical or future questions. In Connaught Laboratories Limited v. R., unreported decision of the Federal Court (Trial Division) dated July 11, 1978, cited in Canadian Union of Postal Workers v. Attorney General of Canada, 1978 CanLII 2091 (FC), 13 CPC 124, it was stated: It is axiomatic that the courts will not decide hypothetical and future cases. In the Canadian Union of Postal Workers v. Attorney General of Canada, supra, the plaintiff union was attempting to process a claim which alleged that an Act of Parliament was in violation of the Canadian Bill of Rights by restricting freedom to strike in certain circumstances. However, when the action was before the court, those circumstances no longer existed. Recognizing the court's ability to make a declaratory judgment, the court expressed caution and reserve in so doing:
Declaratory judgments are a matter of discretion, however, and in the present case, t cannot find that the declaration sought by the plaintiff would serve any useful purpose save for constituting some authority for use by plaintiff or others in other proceedings attacking similar legislation. This alone is sufficient to justify granting defendant's motion.
(At page 128.)
In that case, the defendant's motion to strike out the statement of claim was allowed because the issue raised by the plaintiff was plainly hypothetical and had ceased to be of any practical significance.
- This Board has also been unwilling to render a decision in a hypothetical case. In the case of Daynes Health Care Limited, [19831 OLRB Rep. May 632, the Board was asked for a declaration that the respondent had or would shortly acquire the business of another entity. That case involved a sale of a business but the transaction had not yet closed. However, both counsel in that case asked the Board to express a preliminary opinion on the question of whether, if the transaction was completed as it was expected to be, it would amount to a transfer of a business within the meaning of section 63 of the Act. Both parties argued before the Board that the Board's opinion would be helpful to them in planning their affairs. Obviously, that situation is distinguishable from the case at hand where only one party is asking for the Board's opinion. However, in any event, the Board made it clear that it understood the parties' concerns, but was unwilling to decide the issue at that stage:
We are not unsympathetic to the parties' concerns, but we have concluded that we should not express any opinion or make any determination about the application of section 63 until the transactions said to constitute a transfer of a business have been completed. Any desire to provide guidance to the labour relations community in a difficult area of law must be tempered by a recognition that preliminary opinions based on hypothetical facts could create as much mischief as they resolve, if not more. Not only would such opinions encourage a recision or restructuring of transactions to which section 63 might otherwise apply but, in addition, there could be litigation about the effect of the opinion itself and whether the transaction was actually consummated in the form upon which the Board's opinion was based. Since close cases will often turn on subtle shadings of fact, in our view it would be unwise to render opinions on what will inevitably be less than complete information It is an unfortunate fact that, like other areas of the law, the law regulating employer-employee relations has become increasingly complex and in many cases there is room for argument about how the law should be interpreted or applied. However, we do not think that the answer to this complexity or to the business planning problems faced by the labour relations community lies in this Board giving preliminary opinions on hypothetical fact situations. (Paragraph 13 page 635.)
In our view, when we are asked to give a ruling on the future rights of CLAC in the event that Beverly Enterprises opens a home in an area governed by the SEU agreement we are being placed in a situation analogous to the one before the Board in the Daynes Health Care Limited case, supra.
At the present time, CLAC simply cannot establish that it represents any of the employees affected by the SEU agreement. But CLAC is seeking a declaration that would govern employees who do not yet exist in locations which are not yet operated by Bestview. While such a declaration may well assist CLAC in organizational campaigns and while this Board is concerned about assisting parties in a practical and meaningful way, it is inappropriate for the Board to issue a declaration that deals with future rights and/or would simply ease an organizing campaign that may or may not occur in the future. On the other hand, the Board would be willing to deal with the real question of representation rights when it is established that representation rights and employees' rights will actually be affected by the award.
Therefore, we conclude that this application is premature at this time. Because of this, we do not consider it appropriate to comment on the other interesting issues raised by counsel in the course of this hearing. The application is hereby dismissed without prejudice to CLAC raising similar issues in the future in the event that it can establish that it represents employees who would actually be affected by a determination of these issues.