Corporation of the County of Simcoe (Trillium Manor Home for the Aged) v. Ontario Nurses' Association

[1990] OLRB Rep. April 472

2624-89-M Corporation of the County of Simcoe (Trillium Manor Home for the Aged), Employer v. Ontario Nurses' Association, Trade Union

BEFORE: Ken Pet ryshen, Vice-Chair, and Board Members G. 0. Shamanski and H. Peacock.

APPEARANCES: Steven F. Wilson and Lynda Toms for the employer; David Nicholson for the trade union.

DECISION OF THE BOARD; April 4, 1990

1. This is a reference to the Board by the Minister of Labour pursuant to section 107 of the Labour Relations Act ("the Act"). The Minister has referred to the Board for its advice the follow­ing question:

Is the Minister required to appoint a conciliation officer in this case even though an arbitration board has already been established under the Hospital Labour Disputes Arbitration Act?

2. The parties agreed on the facts. In December 1987, the Ontario Nurses Association ("ONA") was certified to represent a bargaining unit of nurses employed by the Ladies Orange Benevolent Association ("LOBA"). LOBA operated a home for the aged which is an institution included within the definition of "hospital" in the Hospital Labour Disputes Arbitration Act ("I-ILDAA"). Shortly after ONA was certified, it gave notice to bargain to LOBA. The negotia­tion process resulted in the resolution of some issues, the appointment of a conciliation officer and the Minister issuing a no collective agreement report. A board of arbitration was constituted and the dispute is scheduled to be heard by that board on April 11, 1990.

3. On July 31, 1989, LOBA sold the business to the Corporation of the County of Simcoe ("the Corporation"). After some discussion between ONA representatives and representatives of the Corporation, a bargaining session took place on September 25, 1989. On September 27, 1989, ONA sent the Corporation a notice to bargain. The Corporation applied for the appointment of a conciliation officer on November 23, 1989 and it was ONA's objection to the appointment that gave rise to this reference.

4. Counsel for the Corporation argued that the Board should advise the Minister that he has the authority to appoint a conciliation officer in these circumstances. Counsel took the position that, upon the sale of the business to the Corporation, ONA was required to give notice to bargain to the Corporation and that all of the statutory mechanisms are then available to these parties, including the appointment of a conciliation officer. In counsel's submission, the Corporation is not required by law to inherit any results of the bargaining process between ONA and LOBA. In par­ticular, it is argued that the board of arbitration constituted by ONA and LOBA has no jurisdic­tion subsequent to the sale of the business to the Corporation. In support of its position, the Cor­poration relied primarily on Davidson-Walker Funeral Homes, [1981] OLRB Rep. Oct. 1359.

5. Very generally, counsel for ONA argued that the Board should advise the Minister that on these facts he does not have the authority to appoint a conciliation officer. If the Board felt compelled to advise the Minister that he can appoint a conciliation officer in this situation, counsel submitted that the Board should advise the Minister that he should not make the appointment until after the presently-constituted board of arbitration has performed its functions. ONA takes the position that the board of arbitration that has been constituted continues to have jurisdiction. In response to the Corporation's reliance on Davidson-Walker Funeral Homes, supra, counsel for ONA argues that the Board should take a different approach given the interrelationship between the Act and the HLDAA.

6. Counsel for ONA emphasized the consequences of accepting the Corporation's position for ONA and the employees in the relevant bargaining unit and argued that the Legislature could not have intended such consequences. Counsel noted that the process of obtaining a collective agreement under the HLDAA is often a lengthy one. Counsel noted that an interpretation of the Act and HLDAA as suggested by the Corporation would have the effect of delaying and postpon­ing the concrete benefits of unionization for a considerable and unwarranted length of time. Coun­sel referred to subsections 10, 11 and 13 of Section 10 of HLDAA in emphasizing that the timing of the notice to bargain is particularly significant under the HLDAA.

7. In considering this matter, the panel has reviewed the HLDAA as well as the relevant provisions of the Act. For convenience, we set out below section 16(1) and (2) and section 63(3) and (10) of the Act as well as certain provisions of the HLDAA:

Ontario Labour Relations Act

16.-(1) Where notice has been given under section 14 or 53, the Minister, upon the request of either party, shall appoint a conciliation officer to confer with the parties and endeavour to effect a collective agreement.

(2) Notwithstanding the failure of a trade union to give written notice under section 14 or the failure of either party to give written notice under sections 53 and 122, where the parties have met and bargained, the Minister, upon the request of either party, may appoint a conciliation officer to confer with the parties and endeavour to effect a collective agreement.

63.-(3) Where an employer on behalf of whose employees a trade union or council of trade unions, as the case may be, has been certified as bargaining agent or has given or is entitled to give notice under section 14 or 53, sells his business, the trade union, or council of trade unions continues, until the Board otherwise declares, to be the bargaining agent for the employees of the person to whom the business was sold in the like bargaining unit in that business, and the trade union or council of trade unions is entitled to give to the person to whom the business was sold a written notice of its desire to bargain with a view to making a collective agreement or the renewal, with or without modifications, of the agreement then in operation and such notice has the same effect as a notice under section 14 or 53, as the case requires.

(10) For the purposes of sections 5, 57, 59, 61 and 123, a notice given by a trade union or council of trade unions under subsection (3) or a declaration made by the Board under subsection (6) has the same effect as a certification under section 7.

Hospital Labour Disputes Arbitration Act

2.-(1) This Act applies to any hospital employees to whom the Labour Relations Act applies, to the trade unions and councils of trade unions that act or purport to act for or on behalf of any such employees, and to the employers of such employees.

(2) Except as modified by this Act, the Labour Relations Act applies to any hospital employees to whom this Act applies, to the trade unions and councils of trade unions that act or purport to act for or on behalf of any such employers of such employees.

10.-(10) Except where the parties agree to a longer term of operation, any document that consti­tutes a collective agreement between the parties shall remain in force for a period of one year from the effective date of the document.

(11) Notwithstanding the provisions of subsection (10) and except where the parties agree to a longer term of operation, a document that constitutes a collective agreement shall cease to oper­ate on the expiry of a period of two years.

(a) from the day upon which notice was given under section 14 of the Labour Relations Act; or

(b) from the day upon which the previous collective agreement ceased to oper­ate where notice was given under section 53 of the Labour Relations Act.

(13) In making its decision upon matters in dispute between the parties, the board of arbitration may provide,

(a) where notice was given under section 14 of the Labour Relations Act, that any of the terms of the agreement except its term of operation shall be retroactive to such day as the board may fix, but not earlier than the day upon which such notice was given; or

(b) where notice was given under section 53 of the Labour Relations Act, that any of the terms of the agreement except its term of operation shall be retroactive to such day as the board may fix, but not earlier than the day upon which the previous agreement ceased to operate.

8. As noted earlier, the case which the Corporation relies on and which ONA argues does not address the facts of this situation is Davidson-Walker Funeral Homes, supra. The case involves an application under section 92 of the Act in which the applicant alleged that because of a sale of a business a lawful strike against its predecessor cannot be lawfully continued. The Board decided that a trade is not permitted to continue to strike, nor an employer permitted to continue to lock out when the sale of a business has occurred, but in the circumstances declined to exercise its dis­cretion to grant the applicant any relief and dismissed the application. The Board's reasoning on the strike issue has relevance to this case. After noting that the resolution of the complaint before it turns on the interpretation of section 63 of the Act, the Board made the following comments:

9. Section 63 as it now stands has evolved through several amendments of the Act. A review of the history of the section is helpful to a better understanding of the rights and duties which it confers on unions and employers respectively.

10. Prior to the enactment of successorship legislation, the bargaining rights of a trade union ter­minated upon the sale or disposition of a business. The common law afforded no protection to established collective bargaining rights when the employer's legal identity was altered. As con­cluded in earlier cases such as Brantford Produce Company Ltd. 61 CLLC ¶16,193, unless the parties to the employment relationship were contractually bound or the union had been certified for that specific employer's business, the Board could not enforce collective bargaining. A mere change in the legal ownership of the business was therefore fatal to the trade union's representa­tion rights.

11. In the 1962 Ontario Royal Commission's Report on Labour - Management Relations in the Construction Industry, (the Goldenberg Report), the need for statutory protection of a trade union's bargaining rights upon a transfer of ownership was seen as essential to orderly industrial relations. At. p. 114 of its report, the Commission suggested:

i. The Act should provide that where a business or part thereof is sold, leased or transferred, the purchaser, lessee or transferee shall be bound by all the proceedings before the date of sale, and shall become ipso facto a party thereto, and that the proceedings shall continue as if no such change has occurred, and that if a bargaining agent was certified the certification shall remain in effect, and if a collective agreement was in force that agreement shall continue to bind the purchaser, lessee or transferee to the same extent as if it had been signed by him.

ii. Consideration should be given to measures for the protection of acquired bargaining rights in situations arising from certain types of business prac­tices which may affect such rights, for example, where a contractor, engaged on a number of projects in each of which he has a different part­ner, is in a position to shift employees from a project with respect to which certification has been granted to another.

12. In response to this concern the Legislature enacted successor rights legislation in the form of the Labour Relations Amendment Act, SO. 1962-63, c. 70, s. 47(a), which provided:

47a.-(1) In this section,

(a) 'business' includes a part of parts thereof;

(b) 'sells' includes leases, transfers and any other manner of disposition, and sold' and 'sale' having corresponding meanings.

(2) Where an employer who is bound by or is a party to a collective agreement with a trade union or on behalf of whose employees a trade union has been certified as bargaining agent or has given or is entitled to give notice under section 11 or 40 sells his business, the trade union continues, until the Board otherwise directs, to be the bargaining agent for the employees of the person to whom the business was sold in the like bargaining unit in that business, and the trade union is entitled to give to the person to whom the business was sold a written notice of its desire to bargain with a view to making a collective agreement, and such notice has the same effect as a notice under section 11.

13. It should be noted that the Legislature's first intention, reflected in The Labour Relations Amendment Act, SO. 1961-62 c. 28, was to enact a provision similar to the present section 63, including the "flow through" of any collective agreement in effect at the time of the sale of a business. However that amendment was not proclaimed in force and the more limited rights described above were enacted instead. It is clear from these tentative and incremental legislative steps that in its first proclaimed version section 63(2) (then section 47a(2)) was intended only to preserve the bargaining rights of the trade union on the sale of a business. The union then gained the advantage of not being required to reorganize and obtain certification in respect of the like bargaining unit in the business of the new employer. The limited right which the union had, however, was to give notice to bargain to the new employer, who in turn must recognize its right to act as exclusive bargaining agent, as though it had been certified. It is clear that in enact­ing that legislation the Legislature was concerned only with protecting the union's bargaining rights. To the extent that a collective agreement could not survive the sale of a business, the Legislature obviously did not intend to preserve the established rights of employees, apart from the right to be represented by the same union.

14. The Legislature did not, in other words, adopt the broader Goldenberg recommendation that when a business is transferred the purchaser of the business should be "bound by all of the proceedings before the date of sale". As noted in Aircraft Metal Specialists Ltd., [1970] OLRB Rep. Sept. 702 the purpose of section 47a was twofold:

To prevent the subversion of bargain-rights by transactions which are designed to get rid of the union. We have encountered situations where there are transactions between various corporate entities which are in effect 'paper transactions'~ and are a form of corporate charade engaged in for the purpose of eliminating the trade union. In this type of case the Board has liberally interpreted section 47(a) to preserve the bargaining rights and has attempted to look beyond 'paper transactions' to achieve that purpose.

To preserve the bargaining rights with respect to work which has accrued to the benefit of the employees as a result of their union becoming the bargaining agent through certification or voluntary recognition. Once the union had been recognized with respect of a particular business the union then obtains a right to bargain with respect to wages, hours and other conditions of employment in that business. The right to participate in the business and its functions in that manner is in the nature of a vested right and section 47(a) allows the union to pursue that bargaining right when all or part of the business is sold.

15. It is significant that the language of section 47(a)(2) as first enacted, which is the very lan­guage of the present section 63(3), did not preserve the rights of employees or their union under the Act as they stood at the time of a sale; only the right of representation was preserved. This was reflected by the following observation of the Board in Thorco Manufacturing Ltd., 65 CLLC ¶16,053:

Section 47(a) does not operate to bind the successor of the business with the collective agreement which has been made between the union and the predecessor employer but only with the obligation to recognize the union's bargaining rights for his employees in a like bargaining unit. The new employer is therefore, left free to bargain for and to negotiate his own agreement with the union.

16. It was not until a further amendment of The Labour Relations Act in 1970 (The Labour Relations Amendment Act 1970 (No. 2), SO. 1970, c. 85, s. 22) that the language currently found in section 63(2) was introduced. That legislation provided for the flow through of a collec­tive agreement that was in effect at the time of a sale.

17. The section was amended to provide, in part:

47(a)(2) Where an employer who is bound by or is a party to a collective agreement with a trade union or council or trade unions sells his business, the person to whom the business has been sold is, until the Board otherwise declares, bound by the collec­tive agreement as if he had been a party thereto and, where an employer sells his business while an application for certification or termination of bargaining rights to which he is a party is before the Board, the person to whom the business has been sold is, until the Board otherwise declares, the employer for the purpose of the appli­cation as if he were named as the employer in the application.

(3) Where an employer on behalf of whose employees a trade union or council of trade unions, as the case may be, has been certified as bargaining agent or had given or is entitled to give notice under section 11, sells his business, the trade union or council of trade unions continues, until the Board otherwise declares, to be the bar­gaining agent for the employees of the person to whom the business was sold in the like bargaining unit in that business, and the trade union or council of trade unions is entitled to give to the person to whom the business was sold a written notice of its desire to bargain with a view to making a collective agreement and such notice has the same effect as a notice under section 11.

18. Under the then section 47(a)(2) (later section 55(2) and now section 63(2)) a subsisting col­lective agreement was protected from termination upon a sale of a business. Significantly the amended section 47(a)(3) (now section 63(3) as further amended by SO. 1975, c. 76, s. 15(1)) adopted the very language of the earlier section 47(a)(2) to describe the rights of a union which did not have a collective agreement, but was certified and had given notice or was entitled to give notice to bargain under section 13 (now section 14). In 1975 the same language was extended to explicitly cover a union whose collective agreements had expired at the time of the sale of a business. The right of a union, whether in a first agreement negotiation or in a renewal situation, was to give the new employer notice to bargain, such notice to have the same effect as notice under section 13 (now 14) or section 45 (now 53).

19. Counsel for the union concedes that the giving of notice under section 63(3) has significant legal consequences to the extent that, in the words of the Act, it "has the same effect as a notice under section 14 or 53..." Notice under those sections triggers the duty to bargain and the nego­tiation and conciliation processes which are the preconditions to a lawful strike or lockout under the Act. More specifically, section 15 of the Act requires the parties to meet and bargain within fifteen days from the giving of the notice. The notice effectively freezes the rights and duties of the union, the employer and the employees by the operation of section 79(1) of the Act. Where the notice has been given under section 14 or 53 the Minister is required, by section 16 of the Act, to appoint a conciliation officer. By virtue of section 72(2) of the Act where no collective agreement is in operation no strike or lockout can commence until the Minister has appointed a conciliation officer and fourteen days have elapsed after a no-board report. The scheme of bar­gaining under the Act clearly contemplates that the giving of notice under sections 14 and 53, and by clear extension the giving of notice under section 63(3) of the Act, are required before a union can lawful strike or an employer can lawfully impose a lockout. That is not disputed by the union in the instant case. Counsel for the union maintains, however, that in this case the union did not give notice under section 63(3). In her view the union is therefore free to pursue the continuation of the prior right to strike which matured against the predecessor employer, Davidson Funeral Homes.

20. In other words, counsel for the union submits that sections 63(3) gives the union a choice. She argues that when the sale of a business takes place during a strike the union may either con­tinue the strike as an ongoing incident of continuing bargaining or, in the alternative, it can give notice to the employer under section 63(3), thereby ending its strike and reverting to the negoti­ation and conciliation process that must be pursued to the point of a no-board report before a strike can be lawfully undertaken against the new employer.

21. In our view that analysis of section 63(3) raises some fundamental problems. Firstly, bearing in mind that legislation must be presumed to have some meaning and purpose, it is difficult to see why a union should need the alternative which she describes. Mediation is generally avail­able to willing parties when a strike is ongoing. Moreover, there is nothing under the Act to pre­vent a union from pursuing mediation and suspending ongoing strike for such time as it sees fit, assuming no lockout has been imposed. It is difficult to see why the Legislature would have deli­berately fashioned the possibility of a second round of conciliation as a precondition to a strike at the option of the union when the union already has the capacity to suspend its strike and explore the possibility of a mediated solution to its dispute.

22. A further difficulty with the union's interpretation is the obvious inequality in bargaining that it would create. In the scheme of the Act the strike and lockout are co-relative rights. Nei­ther party can strike or lockout until the requirements of the Act, in the form of notice, bargain­ing conciliation and the lapse of time after a no-board report have been met. A significant fea­ture of the balance of bargaining under the Act is that neither party can, except by making a collective agreement, remove the other's power to lawfully use economic sanctions once those conditions precedent have been met. As a corollary right, the choice as to the timing of a strike or lockout rests entirely in the discretion of the union and employer respectively. If the union's interpretation of section 63(3) obtains, that fundamental balance would be shifted on the sale of a business. If we were to accept the union's interpretation, the Act so construed would give to the union the unilateral right to end not only an ongoing strike by giving notice under section 63(3), but also the unilateral right to end an ongoing strike lockout by giving the same notice. Since the power of notice under section 63(3) is exclusively the union's, the employer could not exercise a similar right. Counsel for the union was not troubled by that anomaly. We are.

23. We cannot accept the union's construction of the rights granted by section 63(3) of the Act. Its interpretation would spawn procedures that are unnecessary and which are fundamentally counter to the scheme of bargaining generally contemplated by the Act. In effect, counsel for the union submits that section 63(3) of the Act, by continuing the union's right to bargain for the employees has, in the words of Goldenberg, continued all collective bargaining proceedings as they were before the sale. Neither the history nor the words of the section support that con­clusion.

24. The limited words of section 63(3) of the Act and their piecemeal evolution stand in sharp contrast to the plain words that might have been chosen to impart the intention advanced by the union, and which have been chosen by the Legislature in a different context of successorship. Section 62 of the Act, which deals with the consequences of amalgamation or merger by which one union may become the successor another, is unequivocal in its terms. Where there has been a merger, amalgamation or transfer of jurisdiction the section vests in the Board the authority to declare that the successor union has "acquired the rights, privileges and duties under this Act of its predecessor" and subsection 3 of section 63 provides:

Where the Board makes an affirmative declaration under subsection (1), the succes­sor shall for the purposes of this Act be conclusively presumed to have acquired the rights, privileges and duties of its predecessor, whether under a collective agreement or otherwise, and the employer, the successor and the employees concerned shall reorganize such status in all respects.

25. The wording chosen by the Legislature to describe the rights of a union vis-a-vis the succes­sor employer where no collective agreement is in effect are obviously more limited. The plain reading of the section leads to the conclusion that the union has what the section gives it, namely the entitlement (in our view a word indistinguishable from "right") to give notice to the new employer of its intention to bargain to make a first collective agreement or to renew and amend a previously expired collective agreement. By the inescapable words of the Act the notices so given, for the purposes set out in subsection (10) of section 63, has the same effect as certification.

26. The issue in this case relates directly to the issue before the Board in Oxford Manor Rest Home, [1980] OLRB Rep. Dec. 1786. In that case the Board was required to assess a union's claim that a freeze of the employee's rights under section 79 of the Act instituted by notice to bargain to the predecessor employer continued in effect against the successor employer after the sale of the business. Interpreting section 63(3) (then 55(3)) the Board determined that the freeze binding the predecessor employer, triggered by notice to it under section 14 of the Act, did not survive the transfer of the business. In other words, the rights of the union as against the prior employer as they stood under the Act at the time of the sale did not continue without interruption to bind the new employer. Any freeze of the conditions of employment binding the successor employer was found to originate entirely in the notice to bargain given to the succes­sor employer under section 63(3) of the Act and extended only to conditions as they stood at that date. In concluding that section 63(3) does not vest in the union all ongoing proceedings and rights under the Act as against the successor employer the Board commented at p. 1788:

In essence the trade union, such as in the instant case, continues 'to be the bargaining agent for the employees of the person to whom the business was sold' and 'is entitled to give to the person to whom the business was sold a written notice of its desire to bargain with a view to making a collective agreement'. Nothing in the section explic­itly puts the new employer into the shoes of the previous employer so as to make all the rights and obligations relating to the collective bargaining relationship automati­cally attach to the new employer. The fact that the Legislature has specifically set out that the trade union shall continue to be the bargaining agent and shall have the right to serve notice to bargain on the new employer, militates against there being any additional rights or privileges from any other notice to bargain which may have been served on the previous employer. This view is further fortified by an examination of section 55(2) which, in dealing with a sale of business while an application for certifi­cation or termination is before the Board provides, '... person to whom the business has been sold is ... the employer for the purposes of the application as if he were named as the employer in the application'. In this latter case where the Legislature intended that the new employer should fit precisely into the shoes of the previous employer it has explicitly said so. Had the Legislature similarly intended in section 55(3) we have no doubt it would have said so.

27. It should be noted that the giving of notice to a successor employer under section 63(3) affords the union extraordinary protection to its bargaining rights - protections which are clearly beyond those available if the section were merely to continue all proceedings under the Act as they stand at the time a business is sold. In a recent decision the Board had occasion to explore the benefit to a union conferred by sections 63(3) and (10). In Vaunclair Meats Limited, [1981] OLRB Rep. Aug. 1186 the Board found that the giving of notice by a union under section 63(3) (then 55(3)) has the effect of sheltering a union for at least one year from applications for the termination of its bargaining rights or from raids by another union. When a union gives notice under the section that would otherwise be the open period in which the union is vulnerable to termination or displacement is effectively closed. In dismissing the application for termination brought by an employee in that case the Board commented:

Where a business has changed hands the possibility of greater stress on a union is real; it can no longer be sure that it will bargain with the same expectations along the paths that it travelled time and again with the predecessor employer. In this sense a union bargaining with a successor employer after the transfer of a business is in a situation similar to a union bargaining a first collective agreement after certification. By enact­ing section 55(10) of the Act the Legislature has recognized that reality and provided the union faced with a first negotiation with a successor employer the same protection of its bargaining rights as would operate to protect the negotiation of a first collective agreement. Like a newly certified union, a union dealing with a successor employer can proceed with the assurance that its bargaining rights cannot be subject to attack for a minimum of one year. That is the unequivocal effect of section 49(1) of the Act and it is the clearly intended consequence of section 55(10) of the Act.

28. There are compelling reasons for qualifying the rights of unions and employers by postpon­ing the right to strike or lock out on the sale of a business. By the present operation of article 63(3) an employer who purchases a business during a strike is given at a minimum the opportu­nity to advance his own proposals and attempt to make a collective agreement in an atmosphere free of the inevitable tension of a strike or lockout. The industrial dispute will, after all, gener­ally not be of his own making. The new employer may well bring to the bargaining table a sub­stantially different point of view, shaped by such various factors as his own production and mar­keting strategies, his employment policies or collective agreements in other plants, his general objectives for the business, and an economic well being that may differ substantially from his predecessor's. In many respects he may display a more positive face with more positive results. The view, implicit in the Act, therefore, is that at the moment of the sale the successor employer should be given a fair opportunity to bargain initially in an atmosphere devoid of the stress caused by a lockout or strike. Moreover, the opportunity so given to the new employer is not prejudicial to the union in any terminal sense. The right to strike the new employer is not removed; it is only postponed for the time which the Act allows for any two parties to avail themselves of the statutory mechanisms designed to assist them to reach an accommodation. In our view that result is more consistent with the scheme of the Act. It is, moreover, the only con­clusion supportable on the words of section 63 viewed in the overall context of the statute.

29. We agree with the above reasoning and we are satisfied that it does support the position of the Corporation in this case. We note that the statutory provisions which are determinative are contained in the Act and not in the HLDAA. The sale of a business, the notice to bargain and the appointment of a conciliation officer provisions are in the Act and these provisions are not modified by the HLDAA. The fact that the circumstances of this case concern a "hospital" as defi­ned by the HLDAA cannot affect the Board's interpretation of section 63 of the Act.

30. The essence of Davidson-Walker Funeral Homes, supra, is that section 63 of the Act has the effect on a sale of a business of preserving a trade union's bargaining rights and a collective agreement, if one exists. Section 63 of the Act does not preserve all of the rights of employees or their trade union as they stood at the time of the sale. When a sale occurs after certification and before a collective agreement is executed, the trade union has the right to give notice to bargain to the successor and that notice has the same effect as certification under section 7 of the Act. The trade union and the successor, the Corporation in this case, are free to engage in collective bar­gaining and to utilize all of the dispute resolution mechanisms available to them, including in this case, a conciliation officer and a board of arbitration if necessary. Given this scheme, the Board is of the view that the board of arbitration constituted by LOBA and ONA cannot have any impact on the parties to this application subsequent to the sale of the business from LOBA to the Corporation.

31. Accordingly, the Board's advice to the Minister is that he is required to appoint a con­ciliation officer in this case even though an arbitration board has already been constituted under the Hospital Labour Disputes Arbitration Act.

CONCURRING OPINION OF BOARD MEMBER H. PEACOCK; April 4, 1990

1. I concur in the Board's advice to the Minister and add the following observations.

2. In paragraph 10 above the Board writes that:

the board of arbitration constituted by LOBA and ONA cannot have any impact on the par­ties to this application subsequent to the sale of the business from LOBA to the Corporation.

3. That first board of arbitration was scheduled to convene April 11, 1990. The question then may be, does the first board of arbitration have jurisdiction to settle terms and conditions for the period from the first notice to the date of sale. It may decide that it does not. Such a decision would require the parties to put their positions regarding the pre-sale period terms and conditions before the second conciliation officer and ultimately a second board of arbitration, if one is required. Though it was not for the Board to decide in advising the Minister, a result is possible, from considering the submissions of counsel, that no tribunal may have jurisdiction for the period from the date notice was first given following certification to the date of sale, an interval of 19 months in this case. The Goldenberg report contemplated that the purchaser should be "bound by all the proceedings before the date of sale", but the Legislature did not adopt this broader recom­mendation in enacting section 63 as it is now numbered. (Paragraph 14 of Davidson-Walker Funeral Homes, supra). Instead, by enacting subsection 63(10) which gives the notice of desire to bargain following a sale the same effect as certification, the Legislature may have afforded the par­ties, but especially the new employer, a clean slate, erased of all of the matters, settled or other­wise, that were on the bargaining table prior to the sale. When time runs, as it has in this case, the impact of decisions of the Labour Relations Board and possibly two boards of arbitration may be to deny the affected employees for a very long period of time the access to collective bargaining their certificate granted them.

4. We were not advised of any application for termination of bargaining rights. The trade union has maintained its representational duties, obviously. There has likely been a reliance by employees on an expectation that there will be a collective agreement covering the period from the date notice to bargain was given following certification in December 1987. This Board cannot amend the law. But in agreeing that this panel has correctly applied the law I feel compelled to say that the Board must point out this potential lapse in the law for these employees, as part of our advice to the Minister.