Ontario Nurses' Association v. Kitchener-Waterloo Hospital

[1993] OLRB Rep. March 187

0913-89-U; 0914-89-R Ontario Nurses' Association, Complainant/Applicant v. Kitchener-Waterloo Hospital, Respondent v. Group of Employees, Objectors

BEFORE: Robert Herman, Vice-Chair, and Board Members J. A. Ronson and C. McDonald.

DECISION OF THE BOARD; March 15, 1993

1. In a prior decision ([1991] OLRB Rep. Oct. 1130), the Board (by majority) concluded that a sale of part of a business had occurred from St. Mary's Hospital to Kitchener-Waterloo Hospital (the "Hospital", or "Kitchener-Waterloo") within the meaning of section 64 [formerly section 63] of the Act and that Kitchener-Waterloo Hospital had committed an unfair labour practice in certain respects. By operation of section 64, both bargaining rights and the collective agreement were in effect at Kitchener-Waterloo until the Board otherwise declared. The Board did declare that the bargaining rights of the Ontario Nurses' Association, ("O.N.A."), at the Hospital were terminated, and that the Hospital was no longer bound by the collective agreement between O.N.A. and St. Mary's. The Board reserved on the issue of the effective date of the declarations terminating those rights. The Board also reserved on whether sections 51 [formerly section 50], 65 [formerly section 64], and 68 [formerly section 67] of the Act had been breached by the Hospital. The Board concluded that the Hospital had breached section 67 [formerly section 66] of the Act. The Board remained seized with respect to all remedial aspects. These matters were remitted to the parties to afford them an opportunity to settle them.

2. Unfortunately, the parties were not able to resolve the remaining matters, and in early August, 1992, counsel for the Hospital wrote to the Board asking that the Board deal with the matters described above, and do so without a hearing, on the basis of written submissions from the parties.

3. Shortly thereafter, the Board issued two decisions, in which it directed extensive written submissions from all parties, including comprehensive statements of material facts upon which each might rely, with respect to the issues remaining, and in which the Board set a time- table for the filing and exchanging of the written submissions. The submissions of the parties were filed with the Board on or before October 27, 1992.

4. A more complete recital of the facts can be found in the earlier decision (see paragraphs 11 to 32 therein). O.N.A. was the bargaining agent for the nurses at St. Mary's. The nurses at Kitchener-Waterloo were unorganized. Through a mutual reorganization plan, the two hospitals rationalized services, transferring some from one hospital to the other and closing others. O.N.A. contacted Kitchener-Waterloo Hospital, to request that the parties get together to discuss the transferred services, as O.N.A. was asserting that it had bargaining rights and a collective agreement with respect to the obstetrics and paediatric departments, which were to be transferred from St. Mary's to Kitchener-Waterloo. Kitchener-Waterloo refused to meet with O.N.A., or otherwise discuss the matter, and took the position that O.N.A. had no such bargaining rights and that the collective agreement did not apply.

5. Before they were closed down at St. Mary's and transferred to Kitchener-Waterloo, there were approximately 110 nurses at St. Mary's and 143 at Kitchener-Waterloo respectively in these departments. Kitchener-Waterloo had identified 74 new nursing positions, including full-time, part-time, and casual, that would be created in obstetrics and paediatrics at Kitchener-Waterloo as a direct result of the transfer over of those services from St. Mary's. These were not specific positions that had as such existed until then at St. Mary's. Rather, they were new positions made necessary by the fact that all the obstetrics and paediatrics service would now be provided only at Kitchener-Waterloo. In filling these positions, the Hospital decided that it would first offer them to its own personnel, and around June 19, 1989 it posted the 74 newly-created positions internally. After the internal postings were completed, the Hospital opened the remaining unfilled positions to nurses in the general community, including those then at St. Mary's. Forty-two nurses then in the obstetrics and paediatrics department of St. Mary's applied, along with other nurses from the community. The Hospital offered the vacant positions first to the St. Mary's applicants, and 27 of them accepted. Fifteen of them did not accept the offered jobs, in some cases because the new jobs would have resulted in lower wages, or reduced or different hours. In terms of the timing, although the internal postings were on June 19, 1989, the jobs actually commenced on a staggered basis from the beginning of July until the end of September, 1989. The incremental filling of the new positions occurred because the services were phased out at St. Mary's and transferred on a gradual basis.

6. We turn first to consider the effective date of our declarations that O.N.A. is not the bargaining agent for any of the Hospital's nurses and that the applicable collective agreement is no longer binding. These declarations were made pursuant to section 64(6)(a) and (c) of the Act.

7. There is a dispute between the parties over our jurisdiction to decide as of what date the declarations are to be effective. O.N.A. asserts that the Board has no jurisdiction to make the declarations retroactive. It asserts that the declarations can only be made effective the date of the Board's decision, in this case, October 15, 1991. The Hospital asserts that the Board has the jurisdiction to make the declarations retroactive to the date of the "sale", so that the effect is as if the sale never occurred.

8. The relevant statutory language is found in section 64:

(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, her or its 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, her or its 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 54, sells his, her or its 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 54, as the case requires.

(6) Despite 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 the 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 the 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.

9. The Board considered this issue in Bermay Corporation Limited [1980] OLRB Rep. Feb. 166. As the Board wrote:

10. The respondent's argument raised the suggestion that an order under Section 64(a) of the Act terminating the collective agreement would relieve the employer of both past and present obligations under the contract. While counsel's argument was not absolutely clear on this point, it seemed to anticipate that a declaration at the present time terminating the collective agreement would retroactively void the agreement from the time of the sale. He also seemed to hold the alternative view that a declaration at this time favourable to the continuation of the collective agreement would mean that it would apply to the transferred employee only from this time forward. It is clear to us, given the very words of the section, that any declaration by the Board under section 64(a) that an employer "is no longer" bound by the collective agreement" can only be prospective in effect. Many rights under the Act, including access to arbitration, conciliation and the bar against strike and lock-out depend on the existence of a collective agreement. Given the scheme of the Act there are obvious policy reasons to limit the scope to be given to the Board's order in this circumstance. In this regard it is instructive to compare the wording of section 50, by which the Act renders "void" a collective agreement made following a certification obtained by fraud. While, given the outcome of this application, it need not be conclusively determined by this case, it would appear that under section 64(a) the Board cannot rescind the operation of the collective agreement for any period of time prior to the date that an application is filed under the section. (The Bryant Press Limited, [1972] OLRB Rep. Mar. 186).

11. In Bermay, the Board was of the view that its authority under section 64(6) could not be applied retroactively. In reaching its conclusion, the Board interpreted the words "is no longer bound by the collective agreement" to mean that the declaration could only be effective from the time of making the declaration. We note that the issue of retroactivity was not then before the Board, as the Board itself acknowledged at paragraph 33 of its decision. We also note that, notwithstanding its opinion that such a declaration could only be prospective in effect, the Board was of the view that its declaration could be retroactive to the date that the application was filed. No justification was provided for the authority to make the declaration effective as of the application date rather than the decision date, nor for any distinction between that type of retroactivity and retroactivity to a time before the date of application. In any event, the conclusion of the Board on this point was clearly obiter.

12. In our view section 64(6) does give the Board the jurisdiction to make its declarations terminating bargaining rights and declaring that a collective agreement no longer applies effective at a time earlier than the date of issuing the declarations.

13. The starting point of the Board's analysis is the purpose of section 64: to preserve, through a variety of legal transactions, the bargaining rights enjoyed by a union and the rights of the employees it represents. This statutory purpose or mischief against which the legislation is directed is relevant in assessing many issues under section 64, not only whether a "sale" has occurred. Section 64(6) is perhaps the most sensitive tool that can be utilized in appropriate circumstances by the Board to ensure that the purpose of section 64 is furthered, and to work out problems which result from a "sale" finding in cases of intermingling. There can be no serious question that the Board has a discretion under section 64(6) with respect to the exercise of its various powers contained therein. That discretion should be exercised in a manner contemplated by the legislation, consistent with the mischief section 64 is directed to, and the overall mandate of the Board to make sound labour relations judgements.

14. When events occur that lead an employer or union to assert that a sale has occurred, the provisions of section 64 require parties to continue to respect those rights and obligations in the absence of any application to the Board and until the Board otherwise declares. This approach removes any hiatus in the representation rights and collective agreement obligations while any dispute is being resolved. And it must be so. Otherwise, employers could delay applications and in practice defeat the purpose of section 64, to preserve existing rights. Employers could engage in a series of corporate transactions, which if timed properly, could have the effect of forever avoiding any collective bargaining obligations. The "default" mode of the legislation, that rights continue to apply until the Board determines otherwise, eliminates this problem. This is why subsections 64(2) and (3) are written in a manner stipulating that obligations continue to apply "until the Board otherwise declares". It is why the relevant words in subsection 64(6) mean that the collective agreement continues to apply until the Board makes a declaration that the successor employer "is no longer bound". They do not mean that the successor will always be bound until the date of the Board declaration.

15. The purpose of section 64 is to ensure that bargaining rights and collective agreement obligations carry forward with no interruption through legal transactions and legal litigation. The purpose is to ensure that rights that ought to be preserved do not lapse in the "in-between" times. But where, for sound labour relations reasons, the Board concludes that those rights ought to be terminated, the statutory scheme does not demand that the terminated rights continue until the date of the Board's decision. To read section 64(6) in this manner would undercut the purpose of section 64. It would serve to extend bargaining rights until applications could be disposed of, rather than severing them at the time the Board, as directed by the legislation, determines it is appropriate to do so. It would also interpret section 64(6) in a manner that could lead to absurd results.

16. If the orders or declarations could never be effective earlier than the date of the Board's decision, there would regularly occur serious labour relations problems. One example arises when two inconsistent collective agreements cover the two intermingled businesses. Each union could file grievances under its collective agreement. An employer would likely be in the position of breaching one of those agreements regardless of what it did. Even if bargaining rights were later terminated by the Board, or if it later declared which collective agreement applied, a successor employer would still have breached one of the agreements during the time before the declaration issued, with potentially enormous liability given the time necessary in some cases to litigate these disputes. This is, with respect, an absurd result, one that flows from the interpretation that the Board is without jurisdiction to make its declarations under subsection (6) effective earlier than the date the declarations are made.

17. The Board in Bermay acknowledged this problem, but concluded that "it was not unreasonable to expect the parties to make the necessary adjustments in the language of the agreement" (Bermay, supra, paragraph 27). But section 64 is the vehicle by which the Board resolves problems that the parties cannot. Otherwise, there is no mechanism by which a neutral adjudication can reconcile two inconsistent agreements. To give such a reading to section 64(6) makes no labour relations sense.

18. Further, successorships under the Labour Relations Act can and do create problems in the labour relations structure of the workplace. A literal reading of the statute and the scope clauses of the collective agreements can produce a legal regime in apparent conflict with what other parts of the statute require. Generally under the Act, one union becomes the exclusive bargaining agent for a group of employees (section 42(1)), and only one collective agreement can apply, at a given point in time, to that group of employees (section 50). In successorships, where a sale has occurred in a union-union context, until the Board otherwise declares, an intermingled group of employees may have two collective agreements apply to them and have two different bargaining agents. Section 64(6) is there to give the Board the power to resolve problems that the dual bargaining and representation rights may create, and to enable the Board, where appropriate, to issue remedies that return the parties to a normalized labour relationship, with one exclusive bargaining agent and only one collective agreement. If the declarations could not be effective at a time prior to the date of issuance, then there would always be a period of overlapping bargaining rights, which would, in typical scenarios, lead to serious labour relations problems.

19. Nor does it make sense to give section 64(6) an interpretation which would provide incentives to a party to delay the process, in order to ensure that for the longest possible period the collective agreement would be applicable, regardless of the merits of the case and regardless of its eventual outcome. (See Caressant Care, [1984] OLRB Rep. Aug. 1060, at paragraphs 32 and 33.)

20. In our view, the language, structure and purpose of section 64, and labour relations common sense, all support the view that the Board has jurisdiction to determine the effective dates of its declarations under section 64(6)(a) and (c). The Board has held so before. In Great Atlantic and Pacific Tea Company Limited [1986] OLRB Rep. Apr. 485, at paragraph 49 therein, the Board declined to follow Bermay and it made its declarations retroactive to the date of the sale, as if the sale had never occurred. We agree with this assessment of the Board's jurisdiction. (Also, in this respect, see the discussion of retrospectivity at paragraphs 77 et. seq. in The Municipality of Metropolitan Toronto [1992] OLRB Rep. March 315.)

21. What then is the appropriate time at which to terminate the bargaining rights of O.N.A., at Kitchener-Waterloo Hospital, and to declare that the St. Mary's collective agreement no longer applies, insofar as the Kitchener-Waterloo nurses are concerned? In our prior decision, the Board wrote the following:

22. In balancing these considerations, we nevertheless cannot accept the unit sought by ONA. We do not consider a bargaining unit consisting only of two departments in a multi-department, multi-service hospital to be appropriate. In our view it would lead to undue fragmentation, and would likely result in serious labour relations problems for all parties. Bargaining units in hospitals are generally defined in terms of "all nurses", or "all employees employed in a nursing capacity", without differentiation based solely upon the department or departments in which particular nurses work at a given point in time. In hospital settings throughout the province, as reflected at St. Mary's where ONA. represents the nurses, the employers and the union have generally not delineated units on a departmental basis, for to do so is neither consistent with the administrative operation of hospitals nor to the benefit of the nurses represented by a trade union. Such fragmentation may well impede a nurse's ability to move to other departments within a hospital. It may also seriously impede the efficient running of the hospital.

23. O.N.A. and both St. Mary's and the Hospital treated their nurses as falling within an "all hospital" or "all nurses" grouping. We conclude similarly, given the context in the hospital sector, that the appropriate grouping would be of all the nurses at Kitchener-Waterloo, and not only those in obstetrics and paediatrics. We therefore conclude that the appropriate bargaining units will generally be described as all nurses engaged in a nursing capacity at Kitchener-Waterloo. For reasons that follow, we need not finalize the precise description of the bargaining unit, nor decide whether there should be both a full-time and part-time bargaining unit. (We note that the parties' submissions did not distinguish between the full-time and part-time nurses or units). In so deciding, we are cognizant of the fact that such a bargaining unit here may lead to the extinguishment of O.N.A.'s bargaining rights. But in the hospital sector, and given the evidence, to find appropriate a unit of only the nurses in obstetrics and paediatrics would create serious labour relations problems.

24. We consider next whether a vote ought to be directed. The vote would ask nurses whether they wished to be represented by the applicant. Ordinarily in cases of intermingling, the Board considers the relative percentages in the voting constituency of the unionized and non-unionized employees in determining whether or not to direct a representation vote.

25. Here, if a vote were to be directed, it would be directed of those nurses properly falling within the all nurses bargaining unit(s) at the hospital. The total number of nurses at Kitchener-Waterloo, full-time and part-time, is approximately 807. We must determine how many of the 807 nurses are nurses or positions which O.N.A. represents. On the facts, 74 positions in obstetrics and paediatrics were created at the Hospital as a direct result of the "sale". Regardless of who actually has filled those positions, given our "sale" finding, 74 positions were transferred over. The union at best therefore represents, in effect, 74 employees at Kitchener-Waterloo. The union thus represents 74 out of 807 nurses, or approximately 9% of the bargaining unit.

26. Such a small percentage of the bargaining unit represented by ONA. would not lead us to direct that a representation vote be held. And even if we took the union's best position on the numbers, and accepted O.N.A.'s argument that all 110 nurses in the obstetrics and paediatrics departments at St. Mary's should be considered, the applicant would represent only approximately 14 per cent of the nurses, again too small a number to direct a vote.

27. In these circumstances, we decline to direct a representation vote and we declare that ONA. is not the bargaining agent for any of the Hospital's nurses and that the applicable collective agreement is no longer binding.

28. Even though a sale had occurred, in defining the appropriate bargaining unit the Board did not find the bargaining unit requested by O.N.A. to be appropriate. The Board was unwilling to carve out of the larger hospital setting a bargaining unit consisting only of the nurses in obstetrics and paediatrics. The Board was unwilling to create a "like" unit at Kitchener-Waterloo Hospital, for to find such a unit appropriate would have created serious labour relations problems. In order to rationalize the results occasioned by the intermingling, the Board defined the bargaining unit as hospital-wide.

29. In turn, having thus described the appropriate bargaining unit, the Board concluded that O.N.A.'s bargaining rights and the collective agreement ought to be terminated, so that they did not apply at Kitchener-Waterloo. Given that determination, it follows that the declarations ought to be effective as of the date of sale, so that the rights that have been terminated, because of the sale and intermingling, are terminated before serious problems occur.

30. As a general proposition, significant labour relations problems are likely to result when bargaining rights and the collective agreement are terminated, yet nevertheless continue to apply for a period of time to the intermingled business. This is particularly true in a union-union context, where two collective agreements might apply, until the Board otherwise declared. It is easy to see why declarations terminating bargaining rights for one of the unions and its collective agreement ought ordinarily to be made retroactive to the point of sale. Otherwise, there will always be a period during which the two potentially inconsistent collective agreements apply, with the resulting uncertainty, problems, and costs for all interested parties.

31. Even in a single union setting, if the collective agreement applies for any period of time, all the problems of the intermingling would still exist, with two groups of employees performing the same work, but under different terms and conditions. In this respect, we agree with the prior decisions of the Board in Bryant Press Limited, [1972] OLRB Rep. April 301, and Caressant Care, supra, where the Board concluded that the collective agreement continues to apply, until the Board otherwise declares, only to the business or part of the business that has been transferred. An employer would have two workforces, side by side; the employees in the transferred business, and those who had always worked for the successor. The former group would be covered by all the terms of the collective agreement, the latter by none. Having the collective agreement apply for a time, even in the single union context, will only create more problems and uncertainty, and will further defer the resolution of the problems caused by the sale and intermingling.

32. If the Board were to make the declarations here effective as of the application date, as the Board in Bermay, supra, did, then problems would remain. The collective agreement would apply to the filling of the 74 newly-created jobs in obstetrics and paediatrics, and those positions would have to be filled as required by the collective agreement in effect in June 1989. And this restaffing according to the collective agreement would obtain in a context where the Board has already concluded that the collective agreement ought not to be applicable at Kitchener-Waterloo. The remedy would therefore be inconsistent with the main finding of the Board that those rights ought to be terminated.

33. The only reason to make the declarations effective as of the application date would be to protect the jobs of the St. Mary's nurses. That, of course, is something that might result, pursuant to section 64, if it had been determined that the bargaining rights of O.N.A. and the collective agreement ought to apply at Kitchener-Waterloo. But the Board reached the opposite conclusion here. Since bargaining rights have been terminated, for the reasons expressed in our earlier decision, to have the collective agreement apply for some period of time can only be rationalized on the basis of the Board attempting to protect the work opportunities for the St. Mary's nurses. But work opportunities and bargaining rights are not synonymous terms, at least insofar as section 64 of the Act is concerned. It is bargaining rights that section 64 is designed to protect, and, to repeat, we have already determined that these ought to be terminated and not extended to Kitchener-Waterloo.

34. In addition to the reasons already expressed for making the declarations effective as of the date of transaction, picking another date would likely lead to parties litigating matters, rather than encouraging them to attempt to settle their disputes. If the declarations were effective, for example, as of the application date, parties would have to file their application almost immediately after the sale was alleged to have taken place. Failure to file applications in prompt and immediate fashion would mean that any negative consequences occurring between the date of the transaction and the application date would remain, despite Board intervention. There would be little incentive to settle prior to commencing litigation, and no incentive to hold off litigating until a concrete problem arose in the workplace. Alternatively, picking an effective date subsequent to the application date would mean that rights that ought not to be preserved would continue during the time taken to litigate the matter, an obviously undesirable result.

35. For all these reasons, we consider it appropriate to make our declarations effective as of the date of the transaction, as if the transaction never occurred, and we so direct. There may in other circumstances be reasons when it would be appropriate to make the declarations effective other than at the date of sale. There are no such circumstances or reasons here.

36. Given the effective date of our declarations, even if Kitchener-Waterloo Hospital has breached sections 51, 65, and 68 of the Act, matters upon which we reserved earlier, no remedy would issue for any such breaches. Accordingly, we make no further comment in this regard.

37. In our prior decision we found that Kitchener-Waterloo had breached section 67 of the Act in how it filled the 74 newly-created positions (see paragraphs 59-63 of the decision of October 15, 1991). That breach was independent of the sale finding and a remedy should issue putting the aggrieved parties in the position they would have been in but for that breach, a position where the formula used by Kitchener-Waterloo to fill the new positions would not have involved a breach of the Act. Had the Hospital not committed the unfair labour practice, we are satisfied that in filling the 74 newly-created positions in obstetrics and paediatrics, it would have formed a pool of nurses, consisting of the Kitchener-Waterloo nurses who were about to be laid off in the medical and surgical units at Kitchener-Waterloo, and the St. Mary's nurses in obstetrics and paediatrics at the time. From that pool of nurses, the Hospital would have filled the jobs with the nurses who were the most skilled, who had the greatest ability to perform the jobs in question, provided those nurses would have accepted the positions if offered (see paragraph 21 of the Board's prior decision).

38. Since the nurses at St. Mary's who should have been in the pool were working at the time in either the obstetrics or paediatrics departments at St. Mary's, it is quite likely that most or all of the 74 positions would have first been offered to and awarded to St. Mary's applicants, on the basis of their greater skills in the services in question. This is however, a matter that the parties have not yet had a chance to discuss, or to litigate. At this stage, we merely conclude that the appropriate remedy is for the 74 new jobs, identified and created in obstetrics and paediatrics at Kitchener-Waterloo in June, 1989 to be now offered to the appropriate nurses, according to the conditions described above, from a pool of the St. Mary's obstetrics and paediatrics nurses at the time and the Kitchener-Waterloo nurses who were to be laid off.

39. The St. Mary's nurses in this pool who should have been offered the positions are entitled to the right to fill the particular job now, provided they can establish that they would have been offered and accepted such positions if Kitchener-Waterloo had used its originally planned (and untainted) method of selection. They are also entitled to any damages and other remedial relief that might flow because they were not offered the job back in June of 1989, keeping in mind that the terms of the job set by the Hospital apply, and that the jobs are not at collective agreement rates or other conditions. Any damages are subject to the principles of mitigation. If any of the nurses who might have been entitled to and accepted one of the 74 positions has earned more, or enjoyed greater benefits, in the interim than s/he would have, had s/he originally accepted the job, s/he would not be entitled to damages, only the right to now take up the position if s/he so chooses. Conversely, any nurse who can establish both the right of first refusal for a particular position (that s/he should have been offered the job originally) and the fact that s/he would have exercised it at the time, may be entitled to damages even if s/he does not want the job now.

40. Given the obligation to mitigate, the fact that the St. Mary's wages were generally higher than those that were offered for the 74 positions, the fact that no St. Mary's nurse was laid off because of the transfer, and the difficulties in proving that a given nurse would have been offered and would have accepted a position, it seems likely that there may be significant difficulty in establishing damages for many, if not all, of the 74 positions. However, O.N.A. is entitled to seek to establish such harm and any nurse suffering such damages is entitled to be compensated accordingly.

41. The Hospital asserts that damages, or entitlement to the jobs, is limited to the 42 who did apply at the time. It argues that in June, 1989, O.N.A. was already claiming that the collective agreement applied, and if a nurse nevertheless declined to apply for a job, she is no longer entitled. We do not agree. St. Mary's nurses were not offered the jobs on the appropriate basis, but only in a manner that breached the Act. This context is not a variant of the "work now, grieve later" approach. That principle applies to ensure that the workplace can continue to be managed, while resolving certain disputes through the acknowledged mechanism, arbitration. An employee need not, however, comply with a breach of the Act in order to preserve his/her rights to later seek a remedy for the breach. It cannot reasonably be said, then, that those nurses who failed to apply for jobs that were offered are now disentitled from any remedy because they didn't so apply. Whether a nurse applied then or not is of little assistance. The question is whether a St. Mary's obstetrics or paediatrics nurse (at the time) can now establish she would have applied, qualified for, and accepted a position had the job opportunities been properly offered.

42. What about nurses at St. Mary's who would not be within this group (those entitled to one of the 74 positions who also would have accepted it) but whom O.N.A. asserts suffered damages because some of the 74 nurses who should have had rights to go to Kitchener-Waterloo, and who would have gone, remained at St. Mary's? Some nurses only stayed at St. Mary's because they were not offered the proper terms and conditions at Kitchener-Waterloo, asserts O.N.A. In turn, these nurses bumped other St. Mary's nurses, because they filled other jobs at St. Mary's. Had they gone to Kitchener-Waterloo, O.N.A. argues, someone else at St. Mary's could have filled the job. O.N.A. argues therefore, that some nurses at St. Mary's suffered consequential damages because they were bumped out of or squeezed out of their current jobs at St. Mary's by those who did not, wrongly, have and exercise the opportunity to go to Kitchener-Waterloo, or they lost out on other jobs that went to St. Mary's nurses who would have gone to Kitchener-Waterloo, but for that Hospital's breach of the Act, and wrongful refusal to apply the collective agreement.

43. Since the collective agreement didn't apply, no damages flow from the failure of the Hospital to apply it. However, to the extent that O.N.A. can prove that the losses, if any, suffered

by a nurse, are directly attributable to the breach by Kitchener-Waterloo of section 67 of the Act, as found above, then those nurses may be entitled to damages, subject again to the principles of mitigation. The Board also has some concerns about remoteness and forseeability with respect to any damages on such grounds. As noted, the transfer of obstetrics and paediatrics to Kitchener-Waterloo was part of an overall rationalization where services also were redirected or transferred to St. Mary's with resultant increases in positions in some services at St. Mary's. And under the rationalization Plan, the total budgets of the two institutions did not change. The overall financial position for St. Mary's was deteriorating, and St. Mary's was otherwise in a position where it needed to reduce its costs. In these circumstances, O.N.A. may have difficulty in establishing that a particular nurse suffered the losses claimed directly because of Kitchener-Waterloo's wrongful behaviour. O.N.A. is however, to have an opportunity to seek to prove entitlement to such damages.

37. The Hospital asserts that if any St. Mary's nurses are to be "reinstated" to Kitchener-Waterloo Hospital then it is only fair that any nurses at Kitchener-Waterloo that will be supplanted because of such reinstatement ought in turn to be transferred over to St. Mary's or offered "reinstatement" at St. Mary's. Such an order would not be appropriate. All incumbents in the 74 positions are at risk, not only those originally from Kitchener-Waterloo. More importantly, Kitchener-Waterloo Hospital did not seek this remedy when the case commenced (now several years ago). It is now too late to raise this novel remedial request.

38. Ordinarily, the Board would at this stage remit (again) to the parties the question of the appropriate remedial relief, in light of our comments and findings above, and we would remain seized with respect to such matters. However, given the demonstrated inability of the parties to agree on any matter, and the slow pace of this litigation when left to the parties (as evidenced by the nine month delay between our original decision and the request to relist the matter to deal with remedial relief), it does not appear in the interest of any of the parties, nor of the nurses at either institution, that this matter continue according to the parties' timetable.

39. The potential liability continues to increase as time passes, and the ultimate cost to all the parties, particularly the nurses involved who might be affected by any of the remedies, continues to mount. There is no question that all interested parties will be better served by O.N.A. and Kitchener-Waterloo Hospital resolving the remaining matters themselves. Any decision the Board might issue will cause further delay in reaching a final resolution, and will necessarily be less sensitive to the realities of the workplace and all the nurses involved, and will no doubt be considerably more expensive, in terms of increased litigation and delay costs, to both parties. We urge the parties to make serious efforts to try to resolve the remaining remedial aspects. To this end, Alternate Chair Rick MacDowell is hereby appointed to meet with the parties and assist them in resolving the outstanding issues. This matter will not be relisted to deal with the remaining remedial matters until we are in receipt of a report from Mr. MacDowell advising that the matter be relisted. If this should be necessary, continuation dates shall be set without consultation, but sufficiently in advance that counsel can make arrangements to attend or to instruct other counsel. Further, we may again direct extensive written pleadings prior to recommencing litigation.

40. The Board remains seized on the basis described above.