The Municipality of Metropolitan Toronto v. Ontario Nurses' Association, 1992 CanLII 6761

[1992] OLRB Rep. March 315

0140-91-R; 0387-91-U The Municipality of Metropolitan Toronto, Applicant v. Ontario Nurses' Association and Service Employees International Union, Local 204, Respondent v. Canadian Union of Public Employees, Local 79, Intervener; Ontario Nurses' Association, Complainant v. The Municipality of Metropolitan Toronto, Respondent v. Canadian Union of Public Employees, Local 79, Intervener

BEFORE: R. O. MacDowell, Alternate Chair, and Board Members D. G. Wozniak and K. Davies.

APPEARANCES: D. Smith for Metropolitan Toronto; S. Shacter for Ontario Nurses' Association; J. Nyman for CUPE; no one appearing on behalf of SEIU.

DECISION OF R. O. MacDOWELL, ALTERNATE CHAIR, AND BOARD MEMBER D. G. WOZNIAK; March 25, 1992

Background

I

1. The trade unions mentioned in this decision will be referred to in abbreviated form as:

ONA, CUPE, and SEIU. The applicant will be referred to as "Metro". The CR Vint Charitable Foundation will occasionally be referred to simply as "Vint".

2. This case is about the labour relations consequences which flow from Metro's decision to purchase an old age home called "Carefree Lodge" from the CR Vint Foundation. It concerns the effect of that transaction on bargaining rights held by CUPE and ONA; and, in particular, whether the bargaining rights held by ONA should be preserved in the new institutional context. The matter comes before the Board as an application under section 63 of the Act, which was heard together with a related unfair labour practice complaint. Section 63 reads as follows:

63.-(1) In this section,

(a) "business" includes a part or parts thereof;

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

(2) Where an employer who is bound by or is a party to a collective agreement with a trade union or council of 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 purposes 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 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.

(4) Where a business was sold to a person and a trade union or council of trade unions was the bargaining agent of any of the employees in such business or a trade union or council of trade unions is the bargaining agent of the employees in any business carried on by the person to whom the business was sold, and,

(a) any question arises as to what constitutes the like bargaining unit referred to in subsection (3); or

(b) any person, trade union or council of trade unions claims that, by virtue of the operation of subsection (2) or (3), a conflict exists between the bargaining rights of the trade union or council of trade unions that represented the employees of the predecessor employer and the trade union or council of trade unions that represent the employees of the person to whom the business was sold,

the Board may, upon the application of any person, trade union or council of trade unions concerned,

(c) define the composition of the like bargaining unit referred to in subsection (3) with such modification, if any, as the Board considers necessary; and

(d) amend, to such extent as the Board considers necessary, any bargaining unit in any certificate issued to any trade union or any bargaining unit

defined in any collective agreement.

(5) The Board may, upon the application of any person, trade union or council of trade unions concerned, made within sixty days after the successor employer referred to in subsection (2) becomes bound by the collective agreement, or within sixty days after the trade union or council of trade unions has given a notice under subsection (3), terminate the bargaining rights of the trade union or council of trade unions bound by the collective agreement or that has given notice, as the case may be, if, in the opinion of the Board, the person to whom the business was sold has changed its character so that it is substantially different from the business of the predecessor employer.

(6) Notwithstanding subsections (2) and (3), where a business was sold to a person who carries on one or more other businesses and a trade union or council of trade unions is the bargaining agent of the employees in any of the businesses and such person intermingles the employees of one of the businesses with those of another of the businesses, the Board may, upon the application of any person, trade union or council of trade unions concerned,

(a) declare that the person to whom the business was sold is no longer bound by the collective agreement referred to in subsection (2);

(b) determine whether the employees concerned constitute one or more appropriate bargaining units;

(c) declare which trade union, trade unions or council of trade unions, if any shall be the bargaining agent or agents for the employees in such unit or units; and

(d) amend, to such extent as the Board considers necessary, any certificate issued to any trade union or council of trade unions or any bargaining unit defined in any collective agreement.

(7) Where a trade union or council of trade unions is declared to be the bargaining agent under subsection (6) and it is not already bound by a collective agreement with the successor employer with respect to the employees for whom it is declared to be the bargaining agent, it is entitled to give to the employer 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 14.

(8) Before disposing of any application under this section, the Board may make such inquiry, may require the production of such evidence and the doing of such things, or may hold such representation votes as it considers appropriate.

(9) Where an application is made under this section, an employer is not required, notwithstanding that a notice has been given by a trade union or council of trade unions, to bargain with that trade union or council of trade unions concerning the employees to whom the application relates until the Board has disposed of the application and has declared which trade union or council of trade unions, if any, has the right to bargain with the employer on behalf of the employees concerned in the application.

(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.

(11) Where one or more municipalities as defined in the Municipal Affairs Act is erected into another municipality, the two or more such municipalities are amalgamated, united or otherwise joined together, or all or part of one such municipality is annexed, attached or added to another such municipality, the employees of the municipalities concerned shall be deemed to have been intermingled, and

(a) the Board may exercise the like powers as it may exercise under subsections (6) and (8) with respect to the sale of a business under this section;

(b) the new or enlarged municipality has the like rights and obligations as a person to whom a business is sold under this section and who intermingles the employees of one of his businesses with those of another of his businesses; and

(c) any trade union or council of trade unions concerned has the like rights and obligations as it would have in the the case of the intermingling of employees in two or more businesses under this section.

(12) Where, on any application under this section or in any other proceeding before the Board, a question arises as to whether a business has been sold by one employer to another, the Board shall determine the question and its decision thereon is final and conclusive for the purposes of this Act.

(13) Where, on an application under this section, a trade union alleges that the sale of a business has occurred, the respondents to the application shall adduce at the hearing all facts within their knowledge that are material to the allegation.

[emphasis added]

3. Metro claims that following the purchase Vint and Metro employees have been "intermingled" within the meaning of section 63(6) of the Act - indeed, that the Vint business and its employees have been totally absorbed by Metro, with the result that they now work side by side with Metro employees in a single, larger, consolidated operation. Metro and CUPE urge the Board to terminate ONA's collective agreement, and/or redefine the bargaining structure so that the "Vint nurses" represented by ONA can be assimilated into the Metro-wide bargaining unit(s) represented by CUPE. ONA replies that there has been no "intermingling" within the meaning of section 63(6), but if there has, ONA's right to represent nurses at Carefree Lodge should be preserved, or, in the alternative, extended to encompass some broader grouping of registered nurses employed by Metro.

II

4. Carefree Lodge is a home for the aged which, until 1991, was owned and operated by the CR Vint Charitable Foundation. The building is located in North York and had a capacity of 163 beds. Carefree Lodge was only authorized to provide residential (as opposed to "extended care") services, and for some time, its occupancy rate was less than fifty percent. In August 1989, the Board of Directors of the CR Vint Foundation resolved to divest itself of the institution and requested proposals regarding the sale of the Home.

5. Metro operates a network of eight homes for the aged with approximately 2,300 beds and 3,700 employees. Metro also has 2 "satellite homes" with a further 160 "residential care" beds. The Municipality provides these services to its residents in accordance with the Homes for the Aged and Rest Homes Act.

6. By 1989-90, growing waiting lists and the escalating needs of existing residents prompted Metro to expand its facilities. Instead of constructing a new home "from scratch"~ Metro decided to purchase Carefree Lodge, which it planned to renovate and adapt to meet the demands of its own clients and business organization. The extent of those changes can be appreciated when one compares the purchase price of Carefree Lodge with the cost of the renovations. Under the purchase agreement, Metro acquired "the property, the furniture, furnishings, fixtures and equipment, the inventoried supplies and merchandise, the operating equipment, ... and all other assets attributable to the business of [Carefree Lodge] ... "for the sum of 1.5 million dollars. The renovations will cost 3 million dollars and will be phased in over three years. From a purely structural point of view, Metro's Carefree Lodge is quite different from the institution run by Vint.

7. The purchase of Carefree Lodge was completed on January 31, 1991, and with the consent of the Ministry of Community and Social Services, the Home was changed from a charitable institution within the meaning of the Charitable Institutions Act, to a municipal home for the aged operated under the Homes for the Aged and Rest Homes Act. Metro was already authorized under that Act to provide these services, so, in this respect, Carefree Lodge was merely an extension of the Metro system.

8. As of the purchase date, Vint had a total of 29 employees working at Carefree Lodge: 13 full-time and 16 part-time. The 10 managerial, administrative and clerical personnel had no union affiliation. The remaining 19 employees were clustered in small bargaining units represented by SEIU or ONA.

9. At the time of the sale, SEIU represented a bargaining unit consisting of 12 full-time and part-time nurses' aides and RNA's. ONA represented a full-time registered nurses' unit with 2 members and a companion part-time unit with 5-7 members. (By the time this case was completed, the number of ONA members was reduced to 2 full-time and 3 part-time nurses). The recognition clause of the ONA collective agreement is as follows:

"The employer recognizes [ONA] as the bargaining agent of all registered and graduate nurses employed by the Lodge, save and except the Director of Nursing and persons above the rank of Director of Nursing. For greater clarity it is acknowledged that there are two certified bargaining units: (a) registered and graduate nurses engaged in a nursing capacity and regularly employed for not more than twenty-four hours per week (part-time); (b) registered and graduate nurses engaged in a nursing capacity and regularly employed for more than twenty-four hours per week (full-time)".

10. Vint/Carefree had no employees of its own engaged in housekeeping, laundry, maintenance or dietary services. These activities or functions were not, strictly speaking, part of Vint's business. They were performed on a sub-contract basis by employees of Beaver Foods. There were 37 Beaver employees, who had their own trade union and collective bargaining relationships. SEIU represented 6 full-time and 17 part-time dietary staff. An independent employee association represented 7 full-time and 4 part-time housekeeping staff. In summary, then, at the time of the sale, the Vint employees in the two small bargaining units represented by ONA, worked in conjunction with larger groupings of workers who were either unrepresented, were represented by another trade union, or were working for another employer as well as being represented by another trade union.

11. Following the purchase of Carefree Lodge, Metro began to renovate the premises to bring its services up to Metro standards and to make the Home an integral part of Metro's establishment. There were major structural changes. The number of beds was reduced from 163 to 120. Thirty-four of those beds were redesignated for residents who needed "extended care", and plans are currently underway to increase the number of "extended care" beds. Vint had no extended care beds or residents. It was not authorized to accept such residents or provide such services.

12. As a result of the purchase by Metro, all of the beds at Carefree Lodge are now occupied. There has been a sixty percent increase in the actual occupancy of the Home (from 73 residents to its full capacity of 120), together with a very substantial change in both the kind and level of care provided. The 73 residents "carried over" from Vint, now live in accordance with Metro's servicing, funding and residence rules. The Vint residents were maintained at Carefree because neither Metro nor the Provincial authorities considered it wise to move them. But Metro did not in any sense depend upon Vint for its resident/client base. Metro had its own needs and plans for Carefree Lodge. The services now provided at Carefree Lodge are those that Metro considers appropriate and these services are delivered in the manner prescribed by Metro.

13. Thirty-four of the new residents are legally blind. They were transferred to Carefree Lodge in accordance with arrangements that Metro made with the CNIB prior to the closure of the CNIB's Clarkwood Home in June 1991. The rest of the "new" Carefree residents came from Metro's own admission list. Metro maintains a centralized system for resident placement, applying common criteria at the global level, then, in a more detailed way, at each home. There is no shortage of "customers". That is why Metro wants to expand its capacity - particularly for those residents requiring "extended care".

14. The initial renovations and organizational changes were completed by the fall of 1991; however, it is likely that the institution will continue to evolve in response to the needs of an ageing Metro population. According to Sandra Pitters, the Assistant General Manager of Metro's Homes for the Aged Division, an increase in the number of extended care beds is inevitable, as the overall number of residents increases, and more and more of them have stable chronic conditions requiring higher levels of direct health care. The renovations were undertaken with these developments in mind, and Metro continues to press the Province to designate all 120 beds at Carefree Lodge for "extended care residents". Metro also plans to expand the range of services to include an adult day centre for local senior citizens. It follows, therefore, that there are likely to be further changes at Carefree Lodge, to meet the needs of a growing, more dependent resident population.

15. As a result of the increase in the number of residents, the change in resident mix, and the adoption of Metro standards and programs, Metro has increased the level of nursing, housekeeping, dietary and social services provided at Carefree Lodge. The blind residents, in particular, have their own nursing, restorative, therapeutic and dietary programs. All of these services are now provided directly by Metro's own employees. The contract with Beaver Foods was terminated shortly after the Home was purchased.

16. In keeping with these organizational changes, there has been a dramatic restructuring of both the employee complement and collective bargaining relationships at Carefree Lodge. Instead of 29 workers employed by Vint (the predecessor employer), working with 37 workers employed by Beaver (a different employer), there are now 93 staff all directly employed by Metro (the successor employer). Of these, about 50 are "permanent full-time" complement, and another 43 are classified by Metro as "part-time". It should be noted, however, that within the Metro organization, the term "part-time" encompasses employees who are not part of the permanent complement but who may still work up to 40 hours per week. Accordingly, the number of workers that Metro labels "part-time" (i.e. not permanent full-time complement) may underestimate the current work level in the Home, and is not strictly comparable with the number of workers formerly labelled "part-time" by either Vint or Beaver. For example, a registered nurse working for Metro may well be designated "part-time", yet regularly work for more than twenty-four hours per week - the dividing line between "full-time" and "part-time" status under the ONA collective agreement. Thus, the increase in the number of employees working at Carefree Lodge - while significant in itself - may underestimate the volume of work now being done there.

17. A number of the Metro employees currently working in the renovated facility were simply carried over from the employee complement of Vint. Others were drawn from the employees of Beaver who chose to continue working at Carefree Lodge. In addition, existing Metro employees were given the opportunity to transfer and/or apply for positions at Carefree Lodge, pursuant to the CUPE collective agreements which cover some 11,000 employees throughout Metro. About 20 employees (including 4 managers) were transferred to Carefree Lodge from Metro's other homes for the aged.

18. With the exception of some of the registered nurses (who will be dealt with in more detail below), all of the employees at Carefree Lodge are now represented by CUPE. Pursuant to section 63 of the Act, the Board endorsed the agreement of Metro and the SEIU to transfer to the CUPE bargaining unit all of the former employees of Beaver and Vint who had been represented by the SEIU. The details of that agreement need not be reproduced here. It is set out in the Board's decision of August 6, 1991. It suffices to say that the workers carried with them their accumulated seniority with their former employers, and were placed in job classifications in the CUPE bargaining unit most analogous to those that they had occupied at Carefree Lodge prior to the purchase by Metro.

19. As a result of the expansion of the former workforce, and the agreements with the SEIU, the two bargaining units represented by ONA remain a small minority in a sea of other employees represented by CUPE; moreover, Carefree Lodge is but one of a number of homes in the Homes for the Aged Division, and the Homes for the Aged Division is only one of the operating divisions of Metro. To put the matter in perspective: the "full-time" Metro/CUPE collective agreement covers 1,840 permanent employees in the Homes for the Aged Division alone, and (as of May 1991) applied to approximately 154 full-time registered nurses. The so-called "part-time" Metro/CUPE agreement covers 1,846 employees in the Homes for the Aged Division, including 290 registered nurses. CUPE Local 79 also represents several hundred public health nurses employed by the City of Toronto, and all of the employees of Riverdale Hospital, including nurses. Local 79 has more than 12,000 actively employed members.

20. The CUPE collective agreements are both open-ended "all employee" agreements which, together, nominally cover virtually all employees of Metro, including all those in the Homes for the Aged Division and therefore all of the registered nurses working at Carefree Lodge. As noted, the CUPE bargaining units at Metro encompass thousands of Metro employees and hundreds of registered nurses working in the Homes for the Aged Division and elsewhere. By contrast, the ONA collective agreement is restricted to "registered and graduate nurses employed in a nursing capacity"; but by virtue of section 63(2) of the Act, it too purports to apply to the registered nurses now working in Metro's Carefree Lodge. Both the CUPE and ONA collective agreements designate a union - CUPE or ONA - as the exclusive bargaining agent for registered nurses working at Carefree Lodge (albeit in bargaining units defined somewhat differently). Obviously, there is a conflict of bargaining rights which this Board must resolve.

21. Metro recognized that the purchase of Carefree Lodge would probably precipitate "successor rights" claims from one or more of the three employee organizations that represented employees working in the facility. Metro knew that it would be necessary to address those claims and determine the bargaining structure which would prevail when Carefree Lodge became part of the Metro establishment. With this in mind, Metro entered into discussions with the unions involved, and eventually resolved all outstanding issues respecting employees represented by the SEIU. There was no similar agreement with ONA - hence this application under section 63 of the Act.

22. While this application has been pending before the Board, Metro has preserved what it submits is the "collective bargaining status quo". For the registered nurses at Carefree Lodge who were represented by ONA at the time of the purchase from Vint (the "ONA nurses"), Metro has maintained the terms and conditions of employment that prevailed prior to the sale. Metro continued to apply the ONA collective agreement (since expired) to the "ONA nurses", continued to treat ONA as their bargaining agent, and continued to remit to ONA union dues on behalf of those nurses. The only significant exception involves the "ONA nurses"' pension rights. As Municipal employees, the "ONA nurses" are now governed by legislation establishing the "Ontario Municipal Employees Retirement Fund" in which membership is compulsory. The legislation prescribes pension arrangements which supersede those that were applicable when Vint was their employer.

23. On the other hand, while Metro preserved the specific rights of those individual "ONA nurses", as well as ONA's status as their bargaining agent, all of the other staffing at Carefree Lodge was done pursuant to the terms of the CUPE collective agreements (which, on their face, applied to all employees of Metro including those at Carefree Lodge - that is the conflict to which we have already referred). In other words, the ONA agreement was applied to the "ONA nurses" as individuals, but all of the other workers at Carefree Lodge were treated like other Metro employees for the purposes of payment, transfer, promotion, hiring, job posting and so on. The terms of employment applied or offered to them were those set out in the CUPE agreement. Metro anticipates that the transfers and/or new hiring will continue as the renovations proceed, and more extended care residents are added to the Carefree Lodge population.

24. Metro took the position that Carefree was not some detached, insular institution, at arm's length from the rest of the Homes for the Aged Division or from Metro as a whole. From Metro's perspective Carefree Lodge is now a Metro home for the aged. The programs provided at Carefree Lodge are Metro programs designed and delivered in accordance with Metro's standards to all of the current residents regardless of their origin. The physical structure is substantially different and many of the residents served there (the blind residents) were not part of Vint's business and could not have been part of Vint's business, because Vint was not authorized to accept them. From Metro's perspective, whatever the Vint business may have been, it has been totally absorbed into Metro's organization and transformed to meet Metro's requirements. Accordingly, with the exception of the "ONA nurses" Metro is allocating workers to Carefree Lodge, and in some cases hiring new employees to work at Carefree Lodge, as if they were all employees of Metro, with the terms and conditions of employment, mobility rights, and work assignment obligations of other employees of Metro - regardless of whether they happen to be assigned for the time being to work at Carefree Lodge. Thus, in addition to the two full-time and three part-time "ONA nurses" still at Carefree Lodge, two other registered nurses were transferred into Carefree Lodge from other homes for the aged (one has since transferred back) and a further six "part-time" (on Metro's definition) registered nurses were hired when Metro was unable to immediately secure enough nurse transferees pursuant to the posting and transfer provisions of the CUPE collective agreement. These additional nurses now working at Carefree Lodge, have all been transferred or recruited, and later treated, just like the other 450 nurses in Metro's Homes for the Aged Division covered by the CUPE agreements. To put it another way: their jobs were not considered an "accretion" to the ONA bargaining unit preserved by section 63; their jobs were not posted pursuant to the ONA collective agreement; and neither the direct transferees nor the new hires were paid pursuant to the ONA agreement. Among other things, this meant a different wage rate for those to whom the Metro/CUPE agreement applied, together with significantly different benefits - as perhaps might be expected for a bargaining unit encompassing thousands of workers, many of whom have the right to strike. (The current CUPE units mix employees covered by the Hospital Labour Disputes Arbit rations Act with those who are not, without any apparent labour relations difficulties, and some arguable advantage to the workers concerned.) It also meant that the "ONA nurses" are a minority of the nurses now working at Carefree Lodge.

25. According to Harold Ball, Metro's Director of Labour Relations, these recruiting initiatives were undertaken in accordance with Metro's understanding of its obligation under section 63 to maintain the status quo for those nurses represented by ONA prior to the purchase of Carefree Lodge and its incorporation into the Metro organization. He also indicated, however, that Metro anticipated real difficulties in transferring nurses from other homes or recruiting nurses for the jobs at Carefree Lodge, if those nurses were to be paid less than other Metro nurses, or if their employment prospects were limited to this one home. Quite apart from Labour Relations Act considerations, Metro considered it advantageous to both itself and the employees added to the Carefree Lodge complement, if their conditions and work opportunities were governed by the Metro-wide CUPE agreement.

26. Metro and ONA have not renegotiated the terms of the now-expired ONA agreement formerly concluded with Vint. Metro takes the position that under section 63(9) of the Act it is not required to bargain with ONA until the Board has resolved any conflict with CUPE's bargaining rights, and has determined which employees CUPE and ONA will represent in the new circumstances. In this proceeding, of course, Metro and CUPE both take the position that ONA's vestigial bargaining nghts should be eliminated altogether, in favour of a broader bargaining unit encompassing all Metro employees. In their submission, the half dozen "ONA nurses" still working at Carefree Lodge, together with the new hires and transferees, should be in the same bargaining unit as the other employees working in Metro's homes for the aged, which, as mentioned, includes 450 nurses represented by CUPE.

27. The preservation of the name "Carefree Lodge", and the continuation of a home for the aged at the same location, both tend to mask the extent to which the institution has been transformed from the time it was run by Vint. We have already mentioned the substantial renovations to the physical premises, the changes in the size and make-up of the resident community, the shift to extended care services with the addition of 34 blind residents, the introduction of Metro standards and programs, and the consequent changes in the size and composition of the employee complement. These changes were ongoing while this case was before the Board, and there is no reason to doubt either their direction or effect. From an administrative and operational perspective, Carefree Lodge is no longer a free-standing independent institution. It has become totally integrated into Metro's network of homes for the aged. Indeed, apart from matters associated with the present dispute with ONA, Carefree Lodge is now being run very much like, and in conjunction with, Metro's other homes.

28. As might be expected in an organization with thousands of employees (3,700 of them in the Homes for the Aged Division alone - including hundreds of nurses and other professionals), Metro has an elaborate body of procedures which govern all aspects of its operation. Some of these are a function of Metro's size, Metro's regulatory and funding requirements, and the need to maintain organizational and political accountability. Others are designed to maximize economies of scale, ensure uniform service, and preserve the flexibility to adapt programs (e.g. meals on wheels or community health) to meet shifting client needs. We need not here detail the daunting list of policy manuals which now govern the operation of Carefree Lodge. It suffices to say that the organizational and managerial framework is quite different from what it was when the Home was operated by Vint. Conversely, the system of monitoring, accountability, and managerial control are no different from any other Metro home for the aged.

29. The management team installed at Carefree Lodge was drawn largely from existing managerial employees working in Metro's other homes. Like the other homes, Carefree Lodge is accountable to the General Manager of the Homes for the Aged Division, which is part of the Community Services Department. The General Manager directs the senior managers at the Division level who ensure that all homes comply with divisional standards and procedures. Divisional staff visit Carefree Lodge on a regular basis to assist the local management with program implementation. Initially, much of this contact concerned the ongoing renovations and the expansion of the resident base to include the blind and other clients admitted through Metro channels; however, Metro staff also monitor the ongoing workings of the Home. Regular visitors may include: the General Manager and/or Assistant General Manager of the Homes for the Aged Division, who visit on a monthly basis to oversee the operation; the Manager of Administrative Services, who provides support with respect to the computer and office systems established in the Home; the Manager of Resident Care, who assists the Director of Nursing in matters related to resident care and nursing practice; and various administrators or coordinators of social work, staff development, activation, building services, rehabilitation programs, and food services.

30. Carefree Lodge management (like managers in other homes) are expected to seek telephone advice and arrange visits on an as-required basis, from such divisional personnel as: the staff assistants who advise on matters related to personnel and payroll; the intake supervisor who advises on matters related to the admission process; and various personnel concerned with resident accounting, budget review, and purchasing. Each home, including Carefree Lodge, has a medical director and consulting physician; moreover, Carefree Lodge is now part of a central system for geriatric services and out-patient consultation with both medical and non-medical staff. There is a central pharmacy for all nine homes that dispenses drugs and maintains a centralized drug registry. There is also a centralized laundry service. Like other homes for the aged (and other Metro workplaces), Carefree Lodge uses the services of various Metro departments including Personnel, Treasury and Legal. Centralized computer services are available through Metro's "mainframe".

31. In order to ensure that all employees at Carefree Lodge understood their responsibilities and opportunities within the Metro organization, it was necessary to undertake retraining of those workers who had previously been employed by Beaver or Vint. A number of these sessions were scheduled to take place at Cummer Lodge, another Metro home for the aged located not too far from Carefree Lodge. While the employees were away on these orientation sessions, their positions were covered by other Metro staff.

32. The orientation sessions were designed to acquaint new employees with Metro's administrative structures, and to introduce the workers at Carefree Lodge to the practices and people with whom they will now be associated in either reporting relationships or on various committees. Carefree Lodge staff are now expected to attend monthly, inter-home meetings, in order to discuss management and policy-making for the Homes for the Aged. These meetings establish home standards and ensure that all Metro homes are being operated consistently. In addition, all nursing and activation staff can be sent, from time to time, to other Metro homes for on-site training.

33. The functioning of Carefree Lodge is subject to ongoing reviews, and there are a variety of reporting requirements that allow senior levels of management to monitor program delivery and keep in touch with what is going on at the Home. Insofar as personnel matters are concerned, the administrative processes at Carefree Lodge must now conform to established Metro norms. In the result, any significant decisions affecting employees (including job posting, promotions, demotions, or discipline) must now be discussed with, and approved by, Metro's Personnel Department before being implemented. Local policies must also conform to budgetary and labour utilization requirements. Various inter-home committees consider health and safety issues, record-keeping, budgeting, appropriations and purchasing, nursing care, staff development and training, and social work services.

34. Scheduling must necessarily be done to meet the exigencies of each home; however, within Metro's system it is not uncommon for personnel to be transferred from one home to another to meet local needs. The training sessions provide one example of this, but it is not at all unusual for "nursing staff' (which in Metro's case includes RN's, RNA's and NA's) to transfer temporarily to cover needs at another home (for example, an opening occasioned by educational or pregnancy leave). Nor is it unusual for part-time nurses in the Metro system (i.e., employees working up to forty hours per week) to work at more than one home in order to increase their hours or achieve a more desirable mix. There is an established practice of "twinning" homes that are geographically close, so that nurses and others can make up their hours or construct a more desirable work schedule. There is no reason to believe the practice at Carefree Lodge will be any different (unless the maintenance of a separate ONA unit precludes it); although, of course, until recently the situation has been in a state of flux because of the substantial renovations and organizational changes ongoing at the Carefree site.

35. The so-called "part-timers" in the Metro system typically work 32 hours per week. In the case of Carefree Lodge, the likely "twin" is Cummer Lodge, where the training sessions took place. The CUPE collective agreement has an elaborate seniority-based system for allocating available work to non-permanent staff. This is one of the recruiting advantages to which Mr. Ball referred. Under the CUPE collective agreement, part-timers have the opportunity not only to establish a more flexible work schedule, but also to accumulate, apply and transfer their seniority to other homes and to permanent work opportunities in the companion full-time ("permanent") CUPE bargaining unit. There is also a job-sharing program for employees who find that option attractive. There is no reason to expect the situation to be any different at Carefree Lodge except to the extent that such initiates might be inhibited or foreclosed by the maintenance of a separate bargaining unit of "ONA nurses

36. In order to provide continuous employee coverage and maintain Metro standards of care, Metro occasionally engages "agency personnel" (including nurses) on an as-needed basis; however, Metro's policy is to discourage that practice, preferring instead to cover its short-term needs with personnel drawn from within its own organization. Metro has used agency nurses to cover extra shifts when the part-time nurses working at Carefree Lodge were unable or unwilling to increase the number of their nursing shifts, and Metro hopes to maintain that option. But Metro prefers to draw upon nurses from its other homes for the aged. Similarly, Metro hopes to be able to draw upon Carefree Lodge's "part-timers" to cover exigencies at other homes. Again, there is no reason to expect these flexible work assignment practices to be any different for employees at Carefree Lodge except to the extent that they might be inhibited or foreclosed by the maintenance of a separate ONA bargaining unit.

III

37. For many years Metro has had a unified collective bargaining structure encompassing virtually all non-managerial employees. Those employees can move freely throughout the organization and they are all represented by CUPE, whatever position they may hold from time to time. Since the vast majority of former Vint and Beaver employees are now part of that bargaining structure, and Metro urges the Board to merge the "ONA nurses" as well, it may be useful to describe it in a little more detail.

38. Since the creation of Metro in 1953 and the transfer to Metro of large numbers of employees from its constituent municipalities, virtually all unionized employees have been represented by either CUPE Local 79 (predominantly white collar staff) or CUPE Local 43 (predominantly blue-collar staff). The Metro/CUPE bargaining structure currently encompasses some 11,000 employees, including hundreds of nurses and other professionals. Some of these employees - like pharmacists, nurses and RNA's - have professional responsibilities to provincial regulatory agencies. Many of the members of CUPE Local 79 have professional, technical or graduate training which equals or exceeds that of registered nurses. CUPE is not a "professional union" like ONA, but neither is it any stranger to the representation of professionals - including nurses.

39. Apart from the approximately 450 nurses in the homes for the aged, there are nursing positions in community health, public health, occupational health, hostels, and perhaps elsewhere. Metro witnesses were unable to be very specific because in addition to "clear" nursing positions, there are a variety of managerial and non-managerial occupations for which nursing training would be useful, or at least relevant, and the CUPE units are not restricted to nurses "employed in a nursing capacity". For example, Ms. Pitters is a registered nurse and nurses' training would be relevant in a variety of counselling roles. For nurses who, for some reason or another (disability, for example) are either inclined or obliged to depart from the confines of their own discipline, there are a number of transfer options. This is important for legal, as well as career development or compassionate reasons, because Human Rights and Workers Compensation legislation requires accommodation of disabled workers by providing alternative job opportunities.

40. Metro has general programs for career development and specific programs to encourage female employees to move into non-traditional areas; and with a job hierarchy as varied and extensive as the one covered by the CUPE/Metro agreements, there is ample opportunity for employees to broaden their career horizons, and acquire experience in different work settings. Conversely, the adverse employment effects of a contraction, reorganization or redistribution of work opportunities can be cushioned by reclassification or transfer to opportunities elsewhere within Metro, and within the CUPE units. The advantage to employees of extended area bargaining is obvious, as is the desirability of expanding the range of occupations over which employees may exercise seniority rights.

41. In fact, the CUPE/Metro relationship described above understates the degree of centralized extended area bargaining. The effective bargaining structure in Metropolitan Toronto, actually encompasses an additional five thousand employees employed by the City of Toronto. These employees are also represented by CUPE, and bargain together with Metro employees in a joint bargaining arrangement with CUPE, Metro and the City of Toronto.

42. This system of coalition bargaining flows from the functional, historical, and institutional connections between CUPE, Metro and the City, and results in both a co-ordinated bargaining strategy, and negotiated terms of employment which are substantially similar. This, in turn, facilitates employee mobility from one employee grouping to another, both within Metro and between Metro and the City. In both cases, congruent conditions of employment enhance the exercise and transfer of seniority-based rights from one job or location to another.

43. Because of the long-standing and comprehensive basis of CUPE's bargaining rights at Metro, there is a well-developed process of consultation both within the union (special nursing stewards, for example), and on a variety of union-management committees. Some of these are ongoing structures to involve the union in decision-making, address and adjust differences, and identify operational problems. The Joint Health and Safety committees has a statutory mandate. For more than two years Metro and CUPE have worked together to develop a "gender-neutral" job evaluation system to facilitate the implementation of Pay Equity. There are also institutional arrangements to promote employment equity across the system. Pay equity legislation contemplates plans based upon established collective bargaining structures: the more bargaining units, the more plans to be devised and harmonized, and the more parties whose interests must be accommodated. In Metro's case, it currently deals only with CUPE, and, effectively, one bargaining unit.

44. The ONA collective agreement is quite different from the CUPE agreements in both content and scope - not least because it applies only to "registered and graduate nurses" working at the home, and then only when they are "employed in a nursing capacity". At Metro, there is no such restriction, no ambiguity about the perimeter of the bargaining unit, and no possibility for jurisdictional disputes or competing union claims based upon different perceptions of what a nurse, an RNA, or other employee may do. Such matters are resolved within the confines of a single bargaining structure and collective agreements with one trade union.

45. The ONA collective agreement has different wage rates, a different salary grid, different shift differentials, different vacation entitlements, different job posting and scheduling arrangements, different pension disability and insurance plans (and carriers), a different dividing line between "full-time" and "part-time" employees and a different nominal differentiation between managerial and non-managerial employees. For example, "Head Nurses" are excluded from the CUPE bargaining unit because, in Metro's view, they exercise managerial functions, but in the ONA collective agreement, the managerial exclusions begin with the Director of Nursing. As things now stand, the agreements have different expiry dates, which means that there will be a different collective bargaining cycle. According to Ms. Pitters, seemingly minor matters such as different holidays, make it more difficult to schedule on a team basis, because all of the other team members (including the new nurses at Carefree Lodge) work pursuant to the CUPE scheduling arrangements. The different work week and "part-time" definition have the same effect, and the separate unit makes it harder to set up the "pairing arrangements" applicable to other homes.

46. None of these differences between the ONA and collective agreements is particularly surprising given the different historical context in which the ONA agreement was negotiated with the CR Vint Foundation. On the other hand, if those differences were maintained, there would at the very least be serious labour relations difficulties for Metro, which would have to constantly adjust its personnel practices, both within the Home and generally, to take into account the different legal position of a small employee grouping which is otherwise functionally integrated into the Metro system. There is already some indication of that in the exchanges between ONA and Metro in connection with these proceedings, the application of the ONA agreement, the impact of the statutory freeze, etc. Of course, such difficulties could be eliminated if the terms of employment for all of the nurses working at Carefree Lodge were identical to those of nurses working pursuant to the CUPE agreement in the rest of the Metro organization, and if there was an agreement with CUPE to permit portability of seniority and related rights if a nurse was required to leave Carefree Lodge by reason of promotion, transfer, lay-off, etc. But that is not currently the case; and if it were, one might well ask why it was necessary to maintain two legally distinct bargaining units. Similarly, the Pay Equity problems associated with the addition to Metro's organization of another tiny female-dominated bargaining unit (for which a separate Pay Equity plan would have to be negotiated), might be eliminated if ONA agreed to simply consider its members to be part of the establishment represented by CUPE and agreed to adopt the gender-neutral job evaluation system which CUPE and Metro have already devised for Metro employees. But there is no undertaking to do that either.

47. As we have already mentioned, while this case has been pending before the Board, Metro continued to apply the ONA collective agreement to the ONA members as if they were a distinct and separate employee grouping. That, in itself, is awkward and inconvenient, not only because there are different wages, benefits, holidays, scheduling provisions, grievance procedures etc., but also because all other Metro employees (including the other nurses recruited or transferred to Carefree Lodge) have common terms and conditions of employment, and can be dealt with by Metro's "mainframe" computer. The machine manages all payroll calculations, hours of work, overtime items, employee deductions, unemployment insurance data, tax deductions, and so on. The computer also keeps track of the employees' accumulated seniority, sick bank, vacation entitlement, premium pay, and progression through the grid on anniversary dates. All of this is being done separately and manually for the small group of "ONA nurses" who continue to work at Carefree Lodge in accordance with the terms of the ONA agreement. According to Wanda MacKenzie, the Assistant Manager of Central Payroll, it would take Metro's systems analysts at least three months' work to re-program the computer monitoring system to process information from a separate and different bargaining unit at Carefree Lodge.

48. Of course, Metro could maintain a separate clerk to deal with the paper work generated by a separate bargaining unit covering nurses at Carefree Lodge. It could train personnel to administer the ONA agreement and deal with the separate grievance procedure. Metro could engage in separate negotiations, separate interest arbitrations, and so on for the nurses at Carefree Lodge, separately from the other nurses in the system. It could try to negotiate agreements with ONA and CUPE to provide for portability of seniority and other rights, and to facilitate the transfer of workers, or work, in or out of a separate ONA unit at Carefree Lodge. It could negotiate a separate pay equity plan with ONA, or modify the existing one to meet ONA's concerns. It could involve ONA representatives on all of the employer-employee committees which currently consider matters of interest to Metro employees, as the "ONA nurses" have now become. It is simply a matter of training, expense and the allocation of labour relations personnel to deal with an ONA unit.

49. Counsel for ONA points out that Metro is a large, sophisticated well-funded organization which should be able to tolerate the administrative arrangements and costs associated with a separate ONA bargaining unit; moreover, the very size of the Metro/CUPE unit makes it necessary to recognize the special needs of nurses by preserving their own unit. And ONA is an experienced and established organization uniquely placed to represent nurses. Counsel for Metro describes this proposition as an "administrative headache" which is costly, unnecessary and totally inappropriate in the circumstances - which here include the fact that Local 79 already represents hundreds of nurses employed by Metro.

IV

50. For the purposes of this decision, we are prepared to assume that some or all of the current "ONA nurses" would prefer to continue to be represented by ONA. No direct evidence on this point is necessary. On the other hand, there is no evidence that any of the other nurses working for Metro at Carefree Lodge, or elsewhere, are members of ONA or wish to be represented by

ONA.

The Application of Section 63

I

51. There is no dispute that there has been a "sale of a business" to which section 63 applies. Metro has acquired all or part of Vint's "business", and therefore is a "successor employer" within the meaning of section 63. The general effect of that section was described in Vaunclair Meats Limited, [1981] OLRB Rep. May 581, in the following terms:

52. When a business or part of a business is transferred or disposed of, the transferee acquires it subject to the collective bargaining obligations of the transferor. A union holding bargaining rights for the employees of the transferor retains those bargaining rights for the employees in a "like unit" to that which existed prior to the transfer, and the transferee must continue to apply the collective agreement to that unit until the Board otherwise declares. This transfer and continuation of bargaining rights happens automatically upon the sale of all, or part, of the transferor's business. The Board may terminate the union's bargaining rights if the successor employer significantly alters the character of the business or part of a business acquired; however, until the Board otherwise declares, the transferee stands in the shoes of his predecessor with respect to established bargaining obligations. In this sense, a union's bargaining rights are in the nature of a vested right, which, by statute. "runs with the business

The problem is to determine the consequences of this "successorship".

II

52. Section 63(2) and 63(3) are both concerned with preserving a union's right to represent employees in a bargaining unit when there is a change in the ownership of the business in which those workers are employed. When the employees in the bargaining unit are not covered by a collective agreement at the time of the sale, subsection (3) provides that the union continues to be the bargaining agent for the employees "in the like bargaining unit in that business". Where the subject employees are covered by a collective agreement at the time of the sale, subsection (2) provides that the successor is "bound by the collective agreement as if he had been a party thereto". Section 63(2) was added some years after section 63(3), and has the effect of preserving not just the union s bargaining rights, but also the results of their exercise: the prevailing collective agreement.

53. The words in section 63(2) have been interpreted by the Board in a manner consistent with the language in section 63(3). The scope clause of the collective agreement preserved by section 63(2)is not applied literally to all pertinent employees of the successor after the sale, but only those of its employees who are at the time engaged in the sold business (see Bryant Press Limited, [1972] OLRB Rep. Apr. 301; Antonacci Clothes Inc.,[1984] OLRB Rep. July 887 at paragraph 24; and Caressant Care Nursing Home of Canada Limited, [1984] OLRB Rep. Aug. 1060 at paragraphs 32-33). In Caressant Care, the Board observed that:

…..It is only the employees of the business that was sold which continue to be covered by the collective agreement, just as in subsection (3) a trade union continues 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.

[emphasis in the original]

54. But the application of sections 63(2) or 63(3) may not resolve all of the labour relations issues which can result from the sale of a business. Section 63(4) and 63(6) address the complications which can arise when the successor employer is already engaged in a business at the time of the sale, and has established employment relationships or collective agreements which may conflict with the obligations inherited from the predecessor. Section 63(4) empowers the Board to resolve questions of definition in order to properly preserve the boundaries of the "like unit" which is maintained pursuant to section 63(2) or 63(3). Subsection (6) recognizes that new labour relations realities may make ineffective or undesirable the attempt to maintain the boundaries that have previously been established.

55. Taken together, sections 63(4) and 63(6) allow the Board to take a second look at the situation following a successorship in order to clarify, or if appropriate, redefine the bargaining structure. In Essex County Board of Education, [1969] OLRB Rep. July 552, the Board made these comments:

56. The purpose of section [63(6)] is to avoid that confusion which arises where employees represented by one trade union as their bargaining agent are intermingled with other employees who may or may not be represented by a bargaining agent. Hence, intermingling, whether it is factual or deemed by operation of section [63(11)], is a condition precedent to bringing an application under section [63(6)]. Once that condition is satisfied the Board then may exercise its powers under section [63(6)] and section [63(8)]. Intermingling then becomes one of the factors which the Board considers in determining an appropriate bargaining unit under section [63(6)(b)].

The exercise of the Board's power under [subsection (6)(b)] may result in one or more new bargaining units containing elements of the bargaining unit for which rights are preserved by [subsection 2 or 3] as well as elements of an actual or inchoate bargaining unit of employees engaged in the business in which the successor was engaged prior to the sale. This redefinition of bargaining units will raise a representation issue which is not resolved simply by asking whether a sale of business has occurred and then determining the description of the bargaining unit affected by the sale. The remaining provisions of subsection 6 of section 63 empower the Board to resolve that representation issue and deal with the consequences of that resolution. In Alliance Dairy Limited, [1966] OLRB Rep. Aug. 336, the Board noted that it will not in every such case be necessary to conduct a representation vote in order to resolve this issue of representation.

5. The purpose of section [63] is, subject to the provisions set out in the section, to continue the bargaining rights of a trade union which had represented employees in a bargaining unit where the employer has sold his business. Bargaining rights thus are protected in the interest of stability in collective bargaining relationships. Where two or more bargaining units are, as the result of a sale and the intermingling of employees, merged into one, as in the instant case, both the need for stability in collective bargaining relationships and plain common sense would require that, where there is a large disparity in the size of the two groups of employees, there would be no representation vote, with its necessary expense, propaganda and disruption, but rather a declaration should be made that the trade union representing the great majority of the employees is to be bargaining agent for the new bargaining unit.

In the same vein, the panel in Caressant Care, supra, noted:

The focus of section 63 is on the business, and it is the practical problem of running two integrated businesses, either each ostensibly under a different collective agreement, or one under a collective agreement and one "non-union", which would appear to have prompted the Legislature to provide the relief contemplated by subsection 6.

In Loeb Inc., [1985] OLRB Rep. May 697 the Board observed:

Every existing collective agreement represents negotiated and entrenched rights and obligations on the part of all parties involved, and the Board's jurisdiction to restructure the scope clauses of existing collective agreements, or otherwise affect the entrenched and negotiated rights of the parties, is to be found under the narrower provisions of section 63(6) of the Act. That subsection requires that an intermingling of the two or more operations in question has taken place, and as the Board articulated in, for example, Caressant Care Nursing Home of Canada Limited et al, [1984] OLRB Rep. Aug. 1060 at paragraph 32, the Board for this purpose looks at whether the work or job opportunities themselves have been intermingled in the new form of operation.

III

56. There can be little - doubt that the situation currently before us displays, at the very least, the kind of difficulties which are addressed by section 63(4). There is a problem defining the "like unit", there is a conflict between the ONA and CUPE collective agreements, (which both nominally apply to the nurses working at Carefree Lodge), and there is a claim by ONA that the new hires and transferees fall within its jurisdiction. Indeed, ONA contends that it was an unfair labour practice for Metro to pay the new hires and transferees the CUPE rates and otherwise deal with them pursuant to the CUPE collective agreements.

57. But is there also an "intermingling" within the meaning of section 63(6) which permits, or in all the circumstances, warrants the exercise of the Board's remedial authority (these are two separate questions)? To return to the language of the statute: has Metro intermingled the employees of one of its businesses with those of another of the businesses? And if it has, should the Board vary the bargaining structure or the parties' bargaining rights?

58. In addressing these questions, we might observe, at the outset, that we have not found it very helpful to use the term "accretion" which counsel mentioned in argument and which can be found in a number of Board decisions under section 63(6). Not only does the word "accretion" not appear in the statute itself, but a perusal of those decisions suggests that it has been used in two different and analytically distinct ways:

(a) to describe a situation which fits the opening words of 63(6), but does not require the Board to exercise its remedial discretion because the "intermingling" results in a "mere accretion" to a bargaining structure which can be sensibly preserved;

(b) to describe a situation which may seem to fit a literal reading of the language of 63(6) but is not an "intermingling" at all, so that no remedial authority is available.

One useage has a jurisdictional flavour and the other does not.

59. In this case, of course, we have a two-union situation, with potentially overlapping collective agreements, and a plausible claim by both unions that there has been an "accretion" to their bargaining units, i.e. that the "new" (to each union) work group associated with the acquisition, belongs to the business and the bargaining unit for which that union has bargaining rights. ONA can claim the transferees and new hires are a "mere accretion" to the ONA bargaining unit established in Vint's former business. CUPE can claim that the acquisition and metamorphosis of the former Vint business results in an accretion to its "all employee" bargaining unit with Metro. The label really doesn't help us to determine the factual or legal issues posed by section 63(6): whether Metro has "intermingled" the employees of Vint's business with those of Metro's business (to return to the words of the statute), and if so, what the Board's response should be. As the Board noted in Essex County Board of Education, supra, the fact of intermingling does not, by itself, require the Board to exercise its discretion in any particular way. Intermingling, once found, is but one of the factors to be considered.

60. We have read with interest the various cases to which we were referred, including Caressant Care, Antonacci Clothes, Daynes Health Care Limited, Bermay Corporation Limited, [1979] OLRB Rep. July 608, Hamilton Cargo Transit Limited, [1983] OLRB Rep. June 887, Long-Year Canada Inc., [1979] OLRB Rep. March 225, and the decision of the British Columbia Labour Relations Board in Boston Bar Lumber, [1976] 1 Can. LRBR 380. In each of those cases the tribunal was called upon to consider the application of the intermingling provisions to the particular circumstances before it; and in some of the cases the Board expresses somewhat different views - or, at the very least, uses somewhat different terminology (compare Bermay with Antonacci at paragraph 27 and Caressant Care at paragraph 32). We do not think that any useful purpose would be served by reviewing those decisions here. Whatever view might be taken of the scope or ambit of section 63(6), we are satisfied that it applies here.

61. What was the Vint "business"? Vint provided 73 residents with a place to live (the institution was less than half full) and arranged for the supply of supporting services. Most of those services were not supplied by Vint itself with its own employees, but rather subcontracted to Beaver and delivered by Beaver employees. After the purchase by Metro, the former Vint residents still have a place to live, but now the available programs and services are those which Metro chooses to provide in the way Metro chooses to provide them: exclusively by its own employees who therefore perform some functions which are the same as those provided by Vint employees and some functions which were not previously performed by employees of Vint. Elements of Metro's business -its programs and delivery system - have been infused into the Carefree Lodge organization and made available to the total residential community, including the residents inherited from Vint.

62. But these are not the only changes. The number of residents has been increased even though the overall capacity was reduced; and 47 of the new residents have themselves been intermingled with those who are already there. In the case of the extended care residents, the clients and their programs are a clear addition to those that were provided before because Vint was not authorized to provide "extended care". The Vint "business" (however defined) has not only been added to the Metro organization, it has been completely absorbed and adapted. Former Vint, Beaver and Metro employees are now working side by side, and even if one focuses solely on the ONA unit, there has been an intermingling of ONA nurses with nurses employed by Metro. To suggest that there has only been a token intermingling ignores the relative size of the pre-existing "ONA unit", the complete integration of all the other employees inherited from Vint, and the likelihood of continuing further intermingling on a periodic and permanent basis. Carefree Lodge, as it is now operated, is an amalgam of elements from the businesses of Metro and Vint.

63. A few admittedly hypothetical examples will illustrate the problem which this poses under section 63.

64. Suppose an "ONA nurse" is involved in a program not formerly provided by Vint but now open to all residents? Are her activities part of Vint's business or Metro's? Suppose an "ONA nurse" provides services to the new residents - especially the extended care residents with special needs not formerly addressed by Vint? Is the work associated with this activity part of Vint's business or Metro's? Suppose a Metro/CUPE nurse has been transferred or hired to work at Carefree Lodge as part of the increased complement necessary to service the new residents, or implement Metro's standards, but (as might be expected) she works with the former Vint residents as well? Is her work covered by the ONA bargaining unit/agreement, or the CUPE bargaining units/agreements, or both from time to time? And what of the nurse who is transferred from another home to Carefree and back again (which on our evidence has occurred and will continue to occur)? The fact is that the businesses and the employees have been integrated and "intermingled" in precisely the manner described in Caressant Care, supra. The Board there found an "intermingling" within the meaning of section 63(6), and so do we.

IV

65. There remains the question of whether or how we should exercise the remedial authority given to the Board under section 63(4) or section 63(6)(a)-(d); for as we have already noted, the existence of an "intermingling" or an apparent conflict of bargaining rights does not, in itself, demand that the Board modify the bargaining structure in any particular way. The Board is merely empowered to take a second look, and to realign the bargaining rights in a manner that makes industrial relations sense in the circumstances before it. What makes industrial relations sense in the facts before us?

66. Since we can exercise discretionary authority under both section 63(4) and section

63(6), we should note that sections 63(4) and 63(6) have a somewhat different emphasis, or at least different remedial possibilities. Section 63(4) is designed to preserve the like unit(s) with such revision as may be necessary to define or eliminate conflicts between established bargaining units. The terms of section 63(6) are broader, and contemplate the possible elimination of collective agreements, the termination of bargaining rights, or the realignment of bargaining units and bargaining agents to meet the new situation. In each case the Board must give appropriate weight to the status quo, but, at the same time consider the desirability of modifying the bargaining structure and representation rights to suit the new business situation.

67. Section 63(6)(b) contemplates that the Board will designate "one or more appropriate bargaining units". The use of the term "appropriate" suggests an exercise that is similar to the one undertaken by the Board on an application for certification (see section 6). But the Board's powers and functions are not the same, nor are there the same policy considerations, in "two union situations" like the one now before us. In Kitchener-Waterloo Hospital [1991] OLRB Rep. Oct. 1130 the Board put it this way at paragraph 46:

The considerations applied by the Board in determining an appropriate bargaining unit, under section 63(6)(b), must therefore take into account existing bargaining structures. It may well be, therefore, that the Board will find appropriate a bargaining unit, where there has been intermingling under section 63, which it would not have found acceptable in certification proceedings. Too rigid an approach to describing the appropriate bargaining unit would undercut the purpose of section 63, to protect bargaining rights despite a change in legal ownership of a business. We must balance these two aspects, the need to protect bargaining rights and the need to determine an appropriate bargaining unit.

In Kitchener-Waterloo the Board ultimately refused to preserve a pocket of ONA nurses in two departments of an otherwise unorganized hospital where there were many other unrepresented nurses in other departments. The Board found that concerns about fragmentation (i.e. the problems associated with negotiating a separate collective agreement for this small "island" of "ONA nurses") overrode the inclination to preserve bargaining rights. The Board terminated ONA's bargaining rights without a representation vote; and its analysis is consistent with the approach of the British Columbia and Canada Labour Boards in cases such as Boston Bar Lumber, [1976] 1 CLRBR 380 and Seaspan International Ltd. [1979] 2 CLRBR 213, and the comments of former Ontario Labour Relations Board Chair G. W. Adams, Q.C. in Canadian Labour Law, at page 421:

When intermingling involves the merger of two groups of unionized employees~ a board will look to the existing bargaining structure to decide if maintaining these separate units can be justified. The boards note that the choice of the employees regarding their bargaining agent should be honoured, unless to do so would undermine rational collective bargaining. Balanced against this recognition of the employees' wishes is the preference for single, all-employee units. Where a conflict arises between these two policy goals, the interest of maintaining industrial peace prevails and undue fragmentation is avoided.

68. Where there is a successorship, intermingling, and a "two union situation", the momentum to preserve bargaining rights, must be considered in relation to the express power to realign the bargaining structure to meet the new circumstances; moreover, that realignment will not raise the same concerns about access to collective bargaining that the Board mentioned in certification cases such as Canada Trust Co., [1977] OLRB Rep. June 330, or K Mart Canada Limited, [1981] OLRB Rep. Sept. 1250. The situation is more like the one before the Board in Stratford General Hospital, [1976] OLRB Rep. Sept. 459, where two unions were competing and the Board observed:

Even where the Board has found that two competing applications propose appropriate bargaining units, it has exercised a discretion in favour of the more comprehensive bargaining unit in finding "the" appropriate bargaining unit for the purposes of section 6(1).... Surely where there are competing applications, the Board can be more concerned with the ideal characteristics of collective bargaining structures in that, whatever the decision, employees will not be denied access to the collective bargaining process.

In the instant case, for example, the issue is not whether the nurses will continue to be represented, but rather which union will represent them and what the bargaining structure will be. There is not the same concern about access to collective bargaining altogether or even whether they could sensibly fit into the CUPE bargaining units which already cover hundreds of nurses. This is not a situation in which a unionized group has been absorbed into a non-union one and we are asked to eliminate the former's bargaining rights. Accordingly, in two-union intermingling situations like the one here, the Board may be disposed to give less weight to the pre-existing status quo and employee preferences, and exhibit more concern about the problems of fragmentation and the establishment of coherent, sensible bargaining arrangements in the new business context.

69. The Board has often favoured broader-based bargaining units even in certification situations where the shape of the unit may well influence whether there will be any collective bargaining at all. The structure of collective bargaining "matters", as the Board noted in Bestview Holdings Limited, [1983] OLRB Rep. Aug. 1250:

70. Self-determination and community of interest often favour relatively small units, but these are not the only relevant factors in bargaining unit design. The Board must also strive to create a viable structure for ongoing collective bargaining and, to this end, undue fragmentation must be avoided. Consolidated bargaining offers several advantages over a fragmented structure. A proliferation of small units may result in unnecessary work stoppages. Each time one group goes on strike, other employees performing jobs that are functionally dependent upon the work normally done by strikers are brought to a halt. Even in the absence of functional integration, strikers may erect picket lines that keep other employees away from work. The likelihood of strike occurring increases as the number of rounds of bargaining grows, and is further enhanced by competition among bargaining agents. Secondly, each of several units typically becomes a separate seniority district, enclosed by walls which impede the movement of employees between jobs. In addition, broader-based structures may lower the cost and thereby increase the availability of insurance schemes and benefit plans. A multiplicity of bargaining units also inevitably spawns jurisdictional disputes over the assignment of work and entails the cost of negotiating and applying several collective agreements. Finally, the existence of a single bargaining unit facilitates equitable treatment of employees doing similar jobs.

Likewise, in Board of Governors of Ryerson Polytechnical Institute, [1984] OLRB Rep. Feb. 371, a panel of the Board had this to say:

15. Organizational concerns are not the only forces that shape bargaining units. The Board must also strive to create a viable structure for ongoing collective bargaining. See Usarco Limited, [1967] OLRB Rep. Sept. 526; K Mart Canada Limited, [1981] OLRB Rep. Sept. 1250; and Insurance Corporation of British Columbia, [1974] 1 CLRBR 403 (B.C.). From this perspective, a broadly based bargaining unit offers several advantages over a fragmented structure.

16. A proliferation of bargaining units increases the risk of unnecessary work stoppages. The likelihood of a strike occurring grows with the number of rounds of negotiations and may be further increased by competitive bargaining between two trade unions. The potential for mischief is greatest when the work performed in two or more units is integrated. In these circumstances, whenever one group strikes, other employees who are functionally dependent upon struck work are deprived of employment, though they may stand to gain nothing from the strike because their agreement has just been renewed. Even in the absence of functional integration, strikers may erect picket lines that keep other employees away from work, although a concerted refusal to cross a picket line, by employees who are not entitled to strike, is an illegal work stoppage.

17. There are other drawbacks to a multiplicity of bargaining units. Each unit is likely to become an enclave surrounded by legal barriers - designed to enhance the job opportunities of employees within the walls - that impede the mobility of employees. Restrictions on mobility may entail significant costs for an employer whose practice is to frequently transfer employees between jobs that fall in different units. In some cases, these bafflers may close natural lines of job progression to the detriment of all concerned. A fragmented bargaining structure also inevitably spawns jurisdictional contests over the allocation of work among units, disputes which in the long run benefit no one. And a proliferation of bargaining units entails the time and trouble of negotiating and administering several collective agreements. From the perspective of an employer with centralized control over labour relations, there is an unnecessary duplication of effort. All of these concerns - work stoppages, restricted employee mobility, jurisdictional disputes and administrative costs - favour consolidated bargaining structures, although the force of each vector varies from case to case.

18. But the community of interest among employees may point towards either a broadly-based structure or separate bargaining units. In this context, the word interest, in the phrase community of interest, refers to the bargaining objectives of the employees in question. The most important determinate of those objectives is the work performed. Skills and terms and conditions of employment are also relevant, but these factors are largely derived from the nature of work. In deciding whether to include a population of employees in one bargaining unit or to divide them into separate units, the Board has recognized that within a single unit there is a tendency to .compress existing differentials in wages, benefits and other work rules. People who perform the same, or substantially similar, work are likely to have similar aspirations concerning terms and conditions of employment. And a strong argument can be made that they ought to be treated in the same way. Equal treatment is fostered by including all such employees in one bargaining unit.

Similar policy considerations were enunciated by the British Columbia Labour Relations Board (in a somewhat different context) in Insurance Corporation of British Columbia, [1974] 1 CLRBR 403:

The simplest reason favouring one overall unit is administrative efficiency and convenience in bargaining. All other things being equal, it is preferable to have only one set of negotiations going on, rather than spreading management efforts among two or three or even more units... .A second administrative factor, this one clearly in the interests of both employer and employee, is the matter of lateral mobility. The presence of several bargaining units, each with their own seniority lists and different contract benefits, is an obstacle in the way of an employee's transfer or promotion out of the original unit into which he was hired. This limits the mobility of the employee..., it also restricts management's range of selection among qualified persons to fill a job... .The existence of a single bargaining unit facilitates the achievement of a common framework of employment conditions - vacations, statutory holidays, overtime, insurance scheme, pension plan, and so on... .another factor favouring a single large unit is the objective of industrial stability. If there is one union and one set of negotiations, then the risk of strikes has to be less than if there are several unions negotiating separately. If there are two or more units representing employees in an operation which is functionally integrated, then if one unit goes on strike, it will put the employees in the other unit out of work as well (and even if they have nothing to gain from a strike because they have already signed their agreement)... .These virtues of the employer-wide unit are significant, especially when considered cumulatively. However, they are not absolutely compelling. It is common to find certifications granted by this Board where narrower unit boundaries are drawn. The usual reason for that description of the appropriate bargaining unit is the Board's judgement about the community of interest of the employees. There is a simple explanation for the importance of this factor. The point of certification under the Code is to secure collective bargaining for the employees. Accordingly, the group on whose behalf this bargaining is to be carried on should include only those categories of employees whose interests can reasonably be reflected in one set of negotiations and whose working conditions can be incorporated into one document. If some groups differ greatly in background, skills, nature of work, method of payment, and so on, it may prove difficult to accommodate their interests in one bargaining unit... .In each case, then, the Board must decide whether the distinctive needs of special groupings of employees are strong enough to outweigh the practical arguments in favour of one all-employee bargaining unit....

(See also Board of Education for the City of Toronto, [1986] OLRB Rep. June 900, Kidd Creed Mines Ltd., [1984] OLRB Rep. March 481, and T.V. Guide Inc., [1986] OLRB Rep. Oct. 1451.) It is these factors which the Board must consider in conjunction with the pre-existing bargaining structures associated with the former business(es) in order to determine what the bargaining structure should be in the new circumstances.

V

70. We have weighed the practical and policy considerations referred to above~ as well as the pre-existing status quo, and the evident desire of the "ONA nurses" to continue to be represented by ONA in their own bargaining unit. On balance, we do not think that the circumstances of this case favour the preservation of a bargaining unit consisting of registered nurses employed at Carefree Lodge, whether that unit is defined in terms of the "ONA nurses" working in the remnants of the Vint business still identifiable in the institution, or a somewhat broader unit encompassing all nurses at Carefree Lodge without reference to the origin of their work opportunities. Such unit description would artificially and unnecessarily divide the nurses from the other Metro employees at Carefree Lodge and elsewhere, including the other registered nurses employed in the Homes for the Aged Division and elsewhere.

71. In our opinion, the new organizational context requires a practical, workable and effective structure for collective bargaining. That would not result from the preservation of a narrow, restricted unit confined to nurses at Carefree Lodge, detached from the main bargaining unit, but still substantially dominated by it; for there is no doubt that the substantive terms of employment for the nurses at Carefree Lodge would ultimately end up being very much the same as those of other Metro nurses - as indeed they should be, since their functions are the same and their jobs are integrated into the Metro organization. As CUPE pointed out, even a separate pay equity plan would have male comparators in the CUPE unit which would then, through pegging and maintenance, dictate the rates paid to the "ONA nurses"; and the "duty to accommodate" disabled workers would demand a transfer to the CUPE unit. These collective bargaining and employment law outcomes substantially undercut ONA's demand for a separate bargaining unit with all its attendant costs.

72. We simply do not consider it "appropriate" for collective bargaining purposes to sub-divide Metro's organization in the manner' urged upon by ONA. From an operational point of view, we do not think that Metro should be required to deal separately with a tiny minority of its employees (which is also a tiny minority of its nurses), with separate negotiating processes, separate interest arbitration, separate grievance procedures, separate representation on employer/employee committees, separate salary administration, separate seniority lists, separate pay equity plans, separate seniority promotion and transfer arrangements, etc. Any such barrier erected around the nurses at Carefree Lodge would be totally artificial, impractical, and would impede orderly collective bargaining. This is not a matter of mere administrative convenience, but rather an illustration of the kinds of labour relations problems which flow from fragmented bargaining structures, and to which the Board should be sensitive (see again: Kitchener-Waterloo Hospital, supra, at paragraphs 47-48). We do not consider these problems to be trivial, nor is it relevant that it is the employer that has raised them. It is precisely because these problems are real that the Board will not usually consider classification or departmental employee groupings to be appropriate for collective bargaining, and has been exceedingly reluctant to subdivide an integrated work force into a number of small bargaining units.

73. Nor is there any substantial basis for ONA's alternative claim that the nurses' bargaining unit now confined to Carefree Lodge should be extended to encompass all nurses working for Metro - essentially "carving out" a unit of several hundred nurses from the established CUPE bargaining unit. It has not been the Board's practice to endorse such carve-outs even where a craft union seeks them (and would therefore be entitled to its craft unit as a matter of right in an unorganized situation - see section 6(3)), and there is no reason to do so here. Once again, concerns about the consequences of fragmentation override the desires of particular groups of employees to have their own bargaining unit. In any case, there is no indication that ONA represents even the "new hires" or transferees at Carefree Lodge, let alone the several hundred nurses employed at Metro's other homes for the aged, who are, of course, represented by CUPE.

74. Having regard to the foregoing, and pursuant to section 63(6)(a) of the Act, the Board declares that Metro is no longer bound by the ONA collective agreement preserved by section 63(2), and extended by the operation of the "freeze" provisions of the Act and/or the Hospital Labour Disputes Arbitration Act. It is the Board's intention that the "ONA nurses" formerly bound by that agreement, will now be covered by the CUPE "all employee" collective agreements in the applicable nursing classifications therein provided.

75. Pursuant to section 63(6)(b), the Board determines that the appropriate bargaining units for the employees of Metro, including those Metro nurses working at Carefree Lodge and affected by this application shall be the bargaining units defined in the recognition clauses of the CUPE collective agreements filed as Exhibits 2 and 3 in these proceedings. The "ONA nurses", like the other nurses employed by Metro and represented by CUPE, will fall into one or other of those units depending upon their particular personal circumstances.

76. Pursuant to section 63(6)(c), the Board declares that CUPE represents the employees at Carefree Lodge to whom this application relates, and in particular, the "ONA nurses" formerly employed by Vint, and that ONA no longer represents them. No representation vote is necessary pursuant to section 63(8) because ONA represents only a miniscule minority of the employees in the appropriate bargaining units.

Retrospectivity

77. The parties have raised a residual question concerning the effective date of our declaration; that is, whether we can declare that ONA's collective agreement ceases to bind Metro only as at the date this declaration is made, or in the alternative whether we can or should declare that the ONA agreement is no longer binding as at the date of the sale, or at some other date. There are plausible legal and policy arguments to be made in favour of each of these options.

78. In the first place, it must be remembered that the notion of "successorship" may create

a legal anomaly potentially at odds with the established scheme of the Act. Ordinarily, the legislation demands that a trade union be the exclusive bargaining agent for a defined unit of employees.

There is only one collective agreement at a time in respect of that defined unity and therefore no

uncertainty about either the scope of the unit or identity of the bargaining agent (see sections 42,

49 and 50 of the Act). The union is entitled to bargain on behalf of that group of employees, and

the employer is obliged to engage in that bargaining process.

79. But a successorship creates a situation where the employer may become bound by two collective agreements with different unions, which nominally apply to some or all of the same employees; moreover, an intermingling of employees and/or the activities of the businesses, may make it difficult or impossible to apply the agreements consistently. That is why the Board has been given the remedial authority described in sections 63(4) and 63(6), and the employer is not obliged to negotiate with the union(s) until the Board has addressed the problem (see section 63(9)). A declaration effective as at the date of the sale would resolve any ambiguity associated with the intervening period, and would neutralize the consequences of any delays related to litigation. Neither party would benefit, or suffer from, the fact that the Board could not render a decision instantly after a sale, even if the application was filed immediately. Here~ for example, it might be argued that the "ONA nurses" should be bound by the CUPE collective agreement from the date of the sale, and that they should be paid and otherwise dealt with accordingly.

80. On the other hand, a retrospective declaration might produce problems of its own (particularly if the litigation itself was time-consuming), and may not be consistent with either the terms of the Act or its policy objectives. Just as employees not previously bound by a particular collective agreement might claim retroactive benefits under it, so persons who nominally had the protection of a collective agreement may later find that they did not. The language of the statute suggests a temporary preservation of the status quo (see section 63(2), 63(3) and 63(9), not the ex post facto imposition of something different; and it would certainly seem odd if employees discovered later that they had been "overpaid" or "underpaid". And, of course, in either scenario, it may be difficult to reconstruct what might have been.

81. In the instant case, the parties have asked us to remain seized of this aspect of the remedy, i.e.: whether a declarations that effectively terminate ONA's bargaining rights and merge the ONA nurses into the CUPE units should operate from the date these declarations are made, the date of the sale, or some other date. The parties requested the opportunity to pursue this matter

among themselves before addressing the Board and that is certainly a sensible thing to do. We therefore remain seized of this aspect of the remedy, and will address the issue only if necessary.

The Unfair Labour Practice

82. ONA alleges that Metro's response to the acquisition of the Vint business (pending the Board's decision) breaches sections 15, 50, 63, 64, 66, 67, 79 and 89 of the Labour Relations Act, as well as section 13 of the Hospital Labour Disputes Arbitrations Act. ONA complains that Metro advised ONA that it wished to incorporate the ONA nurses into the CUPE collective agreement (i.e. the result we have declared above). ONA complains that the new hires and transferees have, without ONA's consent, been added to the employee complement at Carefree Lodge pursuant to the CUPE collective agreement rather than the job posting provisions set out in the ONA agreement. ONA complains that these individuals should have been hired and paid pursuant to the ONA agreement. ONA complains, conversely, that Metro has failed to offer the ONA nurses the rates of pay prescribed under the CUPE agreements but rather has continued to pay them at the rates that ONA negotiated with Vint. ONA complains that the "ONA nurses" were not offered the same terms as the new hires/transferees. ONA complains that Metro has refused to table proposals or otherwise engage in collective bargaining with ONA following the sale, but has bargained with CUPE.

83. There are a number of difficulties with ONA's position.

84. As we have already mentioned, the application of section 63 creates an anomalous legal regime lacking a precise definition of the resulting bargaining unit(s), the application of the collective agreements, and the rights of the bargaining agents. Indeed, it is precisely because Vint's business has been integrated and its employees intermingled with the business and employees of Metro that these definitional problems arise. The statute contemplates that with a "sale of a business" there will be legitimate issues of recognition or collective agreement administration which only the Board can sort out, and Metro made a timely application to the Board as soon as it became clear that its dispute with ONA could not be settled otherwise. Once that application was made, Metro was no longer obliged to bargain with ONA on behalf of any of the "employees concerned by the application

85. ONA'S claim also overlooks the fact that at all material times, Metro was also bound by a collective agreement with CUPE which, nominally at least, applied to all of the employees at Carefree Lodge including those whom ONA asserts should be an accretion to its bargaining unit. The purchase from Vint did not negate any legal rights previously held by CUPE and its members. Those, too, were matters for consideration by the Board under section 63(4) and 63(6).

86. In keeping with the thrust of section 63, Metro sought to preserve the status quo pending a resolution of the case before the Board. As a first approximation, Metro continued to apply the ONA collective agreement to all of the former Vint employees who had been represented by ONA, and the CUPE collective agreement to all of the new hires and transferees from the CUPE bargaining unit. That, we might note, would appear to be consistent with the Board's description of the "status quo" in Bryant Press, Antonacci Clothes, and Caressant Care.

87. Now, it might be argued that Metro's approach lacked the precision which the statute requires. Metro did not try to dissect the day-to-day functions of the nurses on an individual basis, to see whether their tasks were traceable to Vint's residential regimen, or had their origin in the changes introduced by Metro. Metro did not try to unravel the Vint elements and Metro elements from what was now a merged and fully integrated organization, or to delineate precisely when nurses were working in the Vint business or the Metro business into which it had been assimilated.

Metro did not, for example, pay the transferees at the ONA rate when they were performing services for Vint residents that ONA nurses had done before, but at the CUPE rate when they served the extended care residents whom Vint had not been legally authorized to accept. Such efforts would have made no sense for a labour force that had become functionally integrated, and we do not think that it wits required by the Labour Relations Act. The Metro solution was a reasonable one in these circumstances - particularly since Metro moved promptly to put the problem before the Board, settled a similar dispute with the SEIU (on terms much like our declaration above) and proposed to ONA the very result which we have found to be appropriate. The fact is, that if the Board had been able to render an immediate decision, none of the interim measures implemented by Metro would have been necessary or could have been the subject of a complaint. All of the new hires/transferees and all of the ONA nurses would have been dealt with pursuant to the CUPE collective agreement and ONA could have been ignored. Instead, Metro continued to recognize ONA as the representative of the "ONA nurses", continued to forward union dues to ONA, and continued to apply the ONA agreement to those to whom it had been applied before while the case was before the Board. The ONA agreement was inferior to the CUPE agreement in many respects, but that consequence has nothing to do with Metro, nor is Metro required to rectify it at the bargaining table until the Board's decision is released.

88. In all of the circumstances, we are not persuaded that Metro's actions constitute a breach of any provision of the Labour Relations Act or the Hospital Labour Disputes Arbitration Act, but even if its response to the sale did constitute a technical breach of one or more of those provisions (for example - the application of the "freeze" provisions to this unusual situation), we do not think that any remedy would be appropriate. The section 89 complaint is therefore dismissed.

DECISION OF BOARD MEMBER KAREN S. DAVIES; March 25, 1992

1. Having had the opportunity to read the decision of the majority I must dissent from their decision. I disagree with the result and with the reasoning that I feel has been simply misapplied to the facts of this case. I shall begin with an interpretation of the purpose of section 64 [previously section 63] and policy considerations that underlie the Board's decision whether or not to exercise its discretion under section 64 [previously section 63] of the Act. The simplest way to do that is to quote from some authorities on the issue. George Adams in Canadian Labour Law, sets out these considerations this way:

When intermingling involves the merger of two groups of unionized employees, a board will look to the existing bargaining structure to decide if maintaining these separate units can be justified. The boards note that the choice of the employees regarding their bargaining agent should be honoured, unless to do so would undermine rational collective bargaining (Oshawa Wholesale Ltd., [1965] O.L.R.B. Rep. Feb. 584). Balanced against this recognition of the employees wishes is the preference for single, all-employee units (Regional Municipality of Sudbury, [1981] O.L.R.B. Rep. Mar. 251). Where a conflict arises between these two policy goals, the interest of maintaining industrial peace prevails and undue fragmentation is avoided (Boston Bar Lumber, [1976] 1 Can. L.R.B.R. 380 (B.C.)). The criteria to be applied in determining the appropriate bargaining unit are not identical to those used in certification proceedings. While the boards may indeed consider these certification criteria, priority must always be given to the existing bargaining rights to the extent they can be reasonably accommodated within the new employment structure (City of Peterborough, [1979] O.L.R.B. Rep. Feb. 133). Thus, a bargaining unit which would be inappropriate on a certification may nonetheless prevail if it has proved itself workable in the circumstances. Some of the criteria to which the boards look are similarity in job functions; shared community of interests; the employer's preference (for a single unit); and the nature and degree of integration. Further, the length of the bargaining units existence in any given business will be weighed when considering the consequences flowing from existing benefits, (such as seniority, pensions and insurance) (City of Peterborough, supra). Unless compelling reasons can be shown to justify the maintenance of separate bargaining units, employees performing the same job function will be grouped into one unit. Instances where separate units have been maintained include where the degree of intermingling is and will continue to be negligible (City of Peterborough and Oshawa Wholesale); where there is significant decentralization of the employer's administrative structure so that a corresponding fragmentation of units is viable; and where there is a history of multiple units being workable within the employer's structure. A key factor to this determination is the size of the employer and its ability to deal with a plurality of units. The larger the employer the more predominant the issue of the shared community of interests and the need for specialized units, (Pacific Western Airlines Ltd., [1980] 3 Can. L.R.B.R. 180 (Can.).

Intermingling occurs where a "business" is sold within the meaning of the successor provisions of a labour relations statute, and the employees covered by the collective agreement relating to that business are mixed or "intermingled" with the pre-existing workforce of the successor employer. Although "the central character of the intermingling concept" is the "mixing of members of two unions or persons covered by separate collective agreements who perform the same job function" (Eastern Canada Towing Ltd., (1977), 24 di 152 at p.162.)' "intermingling" is to be given a "liberal and broad interpretation" (Airwest Airlines Ltd., [1981] 1 Can. L.R.B.R. 427 (Can.). Therefore, intermingling provisions also apply to the absorption of a group of unionized employees into a non-unionized workplace. The Board has said on numerous occasions that the purpose of section 64 [previously section 63] of the Act is to preserve not extend bargaining rights. The bargaining rights being preserved in this case are those of the employees of the transferred business.

[emphasis added]

2. Further authority on the purpose of section 64 (then section 55) and the factors that are

considered in its application can be found in a Paper presented by Rick MacDowell, at pages 38 to

39, the Fourth Annual Institute on Continuing Legal Education (Canadian Bar Association - Ont.)

on Labour Law: Aspects for the General Practitioner. It was held at the Toronto (Harbour Castle)

Hilton on April 5th, 1979:

"The Board has consistently held that great weight will be given to preserving the existing bargaining structure. The island of collective bargaining will be considered prima facie appropriate and will be maintained if there is a reasonable basis for preserving its identity. In making its determination the Board will not apply the same criteria as would be applied if the union had sought certification for the subject employees. Thus in Loblaws Groceterias Co. Ltd., [1973] OLRB Rep. Jan. 13, the Board preserved a union's bargaining rights in a single retail food store in Windsor and declined to redefine the bargaining unit to include all stores in the municipal area even though that is what it would have done had the union applied de novo for certification for that single store.

In City of Peterborough, [1979] OLRB Rep. Feb. the franchisee who ran the city bus service failed to renew the franchise agreement and the city decided to run the service directly. A transfer was effected which the Board found to be "sale" of a business and, as a result, the drivers, mechanics, etc. became employees of the city. There was no actual intermingling with other city employees, but there was an apparent conflict of bargaining rights. The bargaining agency for the drivers was the A.T.U., but CUPE already had an agreement with the City which purported to apply to all city employees. The Board treated the matter under section 55(4) and in preserving the A.T.U.'s position in the transit operation (only) remarked:

The consistent point of departure in the decisions of the Board in applications under section 55 of the Act is a recognition that the primary purpose of the section is the preservation of employees' bargaining rights upon the transfer of a business. The section protects employees of a transferred undertaking against automatically losing their union or seeing their bargaining rights transferred to a bargaining agent not of their choosing.

Thus while the remedial scope of the section allows the Board to engage in an assessment of what is the appropriate bargaining unit the criteria to be applied are not identical to those which obtain in an application for certification of previously unrepresented employees. While the Board may have regard to all of the criteria that apply to that determination in certification proceedings it must also, having regard to the purpose of section 55, seek to balance the interests of the employees of the transferred undertaking and their union. In other words, in the fashioning or amending of bargaining units under section 55 of the Act the Board must give effect to existing bargaining rights to the extent that those rights can be reasonably accommodated within the new employer's administrative structures. (Oshawa Wholesale Ltd. [1965] OLRB Rep. Feb. 504; The Corp. of the City of Kitchener [1973] OLRB Rep. June 306; Yarntex Perth, Division of Yarntex Corporation Ltd. [1975] OLRB Rep. 137).

Of particular concern in the determination of bargaining units under section 55 of the Labour Relations Act is that existing bargaining structures not lightly be interfered with.

[emphasis added]

3. The majority decision places a great deal of emphasis on certain of the criteria mentioned and completely ignores others. For example, G. Adams refers to the policy need to maintain industrial peace and the preference for single, all-employee units influencing whether the Board will preserve bargaining rights or merge them in the face of the employees' wishes. This would seem to be the primary basis for the majority decision in this case and one which is erroneously applied. The criteria to be considered (similarity in job functions; shared community of interests; the employer's preference (for a single unit); and the nature and degree of integration) have not been accorded anything like equal treatment in the majority decision, particularly on a close analysis of the facts in this case. This has resulted in an unfair balancing of the interests of the parties to this application.

4. The majority at paragraph 50 have assumed "that some or all of the "ONA nurses" would prefer to continue to be represented by ONA". I would agree with that assumption. While direct evidence of those employees would have been preferable I believe it is a fair assumption to make. Parenthetically I would simply note that ONA is the certified bargaining agent of the nurses at Carefree whereas CUPE's representation of Metro's employees is the result of voluntary recognition by the employer. None of the nurses at Carefree saw fit to file an intervention so the logical conclusion, absent any evidence to the contrary, is that they are satisfied with ONA's representation of their interests.

5. In terms of the intermingling of employees it is important to define which employees have been intermingled. Is it the intermingling of any employees that is significant or should attention be focused on those employees that are or should be in the bargaining unit in respect of which the section 64 [previously section 63] application is made? The ". . . central character of the intermingling concept" is the "mixing of members of two unions or persons covered by separate collective agreements who perform the same job function", (supra). The importance of making a distinction in the present case is that there is no doubt that some intermingling of the employees of the predecessor and successor employers has occurred. In the case of the predecessor employer there were two bargaining units. A nursing unit represented by ONA and a unit made up of other employees represented by the SEIU. In the case of the successor employer, Metro, there is only one bargaining unit represented by CUPE. This bargaining unit represents all of Metros unionized employees including nurses. The intermingling which has taken place has been predominantly among the unit at the nursing home previously represented by SEIU and Metro employees, who would fall within the scope of this unit, represented by CUPE.

6. A look at the evidence reveals that if any intermingling of nurses has occurred it has been minimal and largely as a result of Metro's failure to respect the collective agreement that exists with respect to the nurses at Carefree represented by ONA. At paragraph 17 of the decision the majority indicate that there has been a transfer of 20 employees from Metro's other Homes for the Aged to Carefree. While it is mentioned that 4 of these are management it does not distinguish between the rest in so far as their job function is concerned. The applicant's exhibit #22, "Staff Transfers from Other Homes in the Homes for the Aged Division", reveals that only two of these were Registered Nurses who would be performing the job function at issue. The evidence of the applicant's witness was that she believed that these were part-time employees.

7. Another exhibit of the applicants, #21 - Carefree Lodge Employees as of July 31, 1991, shows that of the 93 employees there as of that date there were 13 RN's, four full-time and 9 part-time. These employees included new hires. At the time, the number of "ONA nurses", to adopt the terminology of the majority, was 5, 2 full-time and 3 part-time. A comparison of exhibits 21 and 22 and a little arithmetic reveal that 2 of the full-time nurses and 4 of the part-time nurses were new hires. Metro chose to hire these nurses under the terms of the CUPE collective agreement rather then the ONA collective agreement.

8. In the words of section 64 [previously section 63] of the Labour Relations Act "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...". Section 64 [previously section 63] does not contain an exemption for situations where the successor employer is bound by a different collective agreement with a different bargaining agent and there may arise a conflict as to which collective agreement to apply. It does not provide the employer with a discretion as to which parts of the collective agreement it must apply or which it may apply. The employer is bound by the whole agreement "as if he had been a party thereto". To borrow the words of the Board in Vaunclair Meats Limited (cited at para. 51 of the majority). "In this sense, a union's bargaining rights are in the nature of a vested right, which, by statute, "runs with the business

9. I believe the analysis of the majority and their application of the cases cited at paragraph 53 is flawed. In those cases, made explicit in the excerpt from Caressant Care, the conflict between the collective agreements is resolved by applying them to the employees of the sold business and the employees of the person to whom the business was sold respectively. When an intermingling of the two workforces occurs you have the problem that section 64 [previously section 63] was designed to address. The impracticalities of having employees performing the same or similar job functions for the same employer in the same workplace require resolution. Those cases do not address the issue of new hires such as we have here.

10. In paragraphs 22 through 24 the majority set out Metro's interpretation of its obligation under section 64 [previously section 63], in the words of the majority "to maintain the status quo" for those nurses represented by ONA prior to the purchase of Carefree Lodge". With all due respect to Mr. Ball I do not think he got it right. By definition collective bargaining rights cannot attach to individuals. The collective agreement to which Metro became bound on purchasing Carefree was not between ONA and the employer on behalf of certain individuals but was between ONA and the employer in respect of a bargaining unit. This comment is made to highlight the reason for the numbers of what the majority have elected to call "ONA nurses" and "CUPE nurses" at Carefree Lodge. It would be somewhat specious to rely on these numbers and the situation created of having nurses working side by side but subject to different collective bargaining regimes as a basis for analyzing whether intermingling as contemplated by the Act has occurred.

11. The employer's creation of a de facto intermingling situation, when there would not be one if it had applied the ONA collective agreement in its entirety to the new hires at Carefree, should not usurp the Board's role of determining the appropriate declaration to make pursuant to a section 64 [previously section 63] application.

12. Also, paragraph 25 states that Metro considered it advantageous to both itself and the employees added to the Carefree Lodge complement if their conditions of work and opportunities were governed by the Metro Wide CUPE Agreement. Clearly here Metro thinks it has the right to act on behalf of the employees. To my understanding Metro is not their bargaining agent. Metro in this instance has created their own problem by implementing two collective agreements for Nurses.

13. It is appropriate at this point to highlight some of the evidence given by the applicants own witness, in respect of "the real difficulties in transferring nurses from other homes or recruiting nurses for the jobs at Carefree Lodge".

14. Ms. Pitters was questioned about registered nurses working in more then one home. Her testimony was that this only occurred where two homes had been twined and they were only twined if in close proximity to each other. She further testified that this only involved part-time RN's and that lateral transfers between homes were considered for personal reasons and sometimes for increased hours in the case of part-time nurses.

15. This evidence leads me to believe that transfers between homes are not nearly as frequent as might be assumed from Mr. Ball's testimony. I should say that this is not meant to indicate that Mr. Ball intended to mislead the Board. His testimony was accurate in so far as he was aware. Ms. Pitters, Assistant General Manager of Metro's Homes for the Aged Division, has a greater awareness of the reality, what is, as opposed to the theory, what could be, and her testimony is persuasive in this regard.

16. The testimony of Mr. Ball and Ms. Pitters, also reveals a true sense of the expanded career opportunities that would be available to the nurses if they were under the CUPE collective agreement. Both these witnesses testified that in their opinion the career opportunities of the nurses would be enhanced by having greater access to transfer and promotional opportunities. They asserted that the nurses would have job opportunities in Metro's other divisions that would not be available to them if they were outside the CUPE collective agreement. However, when questioned about specific instances of nurses from the CUPE bargaining unit taking advantage of these transfer and promotional opportunities they could not recall even one. The evidence of Ms. Pitters was that nurses, while applying to Metro's Homes for the Aged Division, are in fact hired to work in specific Homes.

17. A great deal of the majority decision is occupied with an analysis of the change in character to Carefree Lodge by reason of the expansion of beds and services that Metro intends to provide. With respect, I really do not see the relevance of this analysis. On an application under section 64 [previously section 63] an analysis of the changed character of the business is appropriate where the respondents position is that the change is of such significance that a sale of the business did not take place but merely a sale of assets. Then the Board must enter into the kind of inquiry the majority has here in order to determine if a sale of a business as contemplated by section 64 [previously s.63] did in fact take place.

18. That is not the case here. In this instance the parties are agreed that a sale of business did take place. The Board has so found. The only inquiry necessary is as to the job function of the members of the bargaining unit. While the majority have decided that the changes to Carefree have significantly altered the job function, I disagree. The members of the bargaining units in issue are still RN's and they are still working in a nursing capacity. They are still providing care-giving services to the elderly. Some individuals will need specialized care but that doesn't go to issue of intermingling of the bargaining unit.

19. The majority, in particular at paragraphs 28 to 30, speak of the integration of Carefree with the other Homes in Metro's Homes for the Aged Division. This integration is at the administrative and managerial level only. The nature of the work performed is still care-giving by RN's. As mentioned above, far from being integrated, the RN's, with few if any exceptions, work in one specific home providing nursing care. The integration of the administration and management is irrelevant to the issue of intermingling of the bargaining units.

20. My comments on paragraph 42 are that it is fine for the employer and the Board to say these things but I didn't hear any nurses saying it. Unfortunately I do not read paragraph 44 as clearly as the majority would like. I do not see that CUPE's collective agreement clearly eliminates any of these problems. I believe the problems are still there. They would not be called a jurisdictional dispute they would be a work classification dispute. The only difference I see between the ONA and the CUPE unions is the fact that the resolution forum is different.

21. The "problems" enumerated in paragraph 45 can and should be dealt with at negotiations between parties. Scheduling would not be a problem if there were only one bargaining unit of nurses. Scheduling becomes a problem when the employer starts to recognize portions of two different collective agreements. At paragraph 46 the acknowledgement is made that the differences are largely explained by the "different historical context in which the ONA agreement was negotiated". This acknowledgement of reality makes all the commentary in the majority decision about the differences between the agreements superfluous. There is no reason that within the new context of bargaining with Metro ONA would not attain similar, or the same or even improved benefits over those contained in the CUPE agreement.

22. Paragraph 49 concludes with the sole and overriding argument of the employer for merging the bargaining units. Counsel for Metro said it would be an "administrative headache" for Metro to have to negotiate a separate agreement with a different bargaining agent. In cross-examination, however, Mr. Ball admitted that Metro employs some 40 individuals who as tradespeople are covered by province-wide trade collective agreements. In his evidence he said that there were four different collective agreements covering these 40 employees and he was not aware of any problems in the application or administration of these agreements by Metro.

23. In paragraph 69 the majority cite several decisions as precedence for favouring a large, all inclusive bargaining unit. There are two main criteria considered in these excerpts. The administrative convenience and efficiency for the employer and the problems inherent in having a multiplicity of bargaining units with the potential result of a multiplicity of work stoppages. This being not only economically inefficient but unfair to employees whose work is so integrated that they have to be laid off every time one of the bargaining units goes on strike. (See the majority decision, Bestview Holdings, at the bottom of page 30; Ryerson Polytechnical, para. 16 at page 31, and Insurance Corporation of B.C., near the bottom of page 33).

24. In the case before this panel the nurses employed in the bargaining units at issue are covered by the Hospital Labour Disputes Arbitration Act and are not permitted to strike. The concern over work stoppages and their effects is largely moot. This leaves us with the "administrative headache" for the employer, in this case Metro. I do not believe that to negate the free selection of their own bargaining agent by the nurses at Carefree is an appropriate cure. The thrust of section 64 [previously section 63] is to preserve bargaining rights if at all reasonable.

25. In the result, the Board should issue an order preserving the existing collective agreement and ONA's bargaining rights in respect of the nurses unit at Carefree. The CUPE bargaining unit definition/recognition clause to be amended accordingly.