Ontario Public Service Employees Union v. St. Joseph's Hospital, Brantford and The Brantford General Hospital, 1994 CanLII 9866

Ontario Public Service Employees Union v. St. Joseph's Hospital, Brantford and The Brantford General Hospital

Citation: [1994] OLRB Rep. August 1103 File No.: 0062-94-R Date: August 2, 1994

Before: Gail Misra, Vice-Chair, and Board Members R. W. Pirrie and R. R. Montague.

Appearances: Mary MacKinnon, Ed Ogibowski, Barbara Marshall, Jill Morgan and Rosemary Birka for the applicant; Stephen F. Gleave, Maureen Dignan and Stephen C. Raymond for St. Joseph's Hospital, Brantford; Robert Hickman, Joe Buller, and Norm Crowe for The Brantford General Hospital.

DECISION OF THE BOARD; August 2, 1994

1This is an application made under section 64 of the Labour Relations Act alleging that a sale of a business took place on or about April 13, 1994, by the St. Joseph's Hospital, Brantford (hereinafter also referred to as the "SJH") to the Brantford General Hospital (hereinafter also referred to as the "BGH"), when the SJH transferred its Laboratory Services to the BGH. The applicant requests as remedies an order that the Brantford General Hospital is a successor employer to the St. Joseph's Hospital, Brantford, and that the applicant is the exclusive bargaining agent for the following bargaining unit:

all paramedical employees of the Brantford General Hospital employed in the laboratory located on the premises of the St. Joseph's Hospital, Brantford, save and except supervisors, persons above the rank of supervisor, professional medical staff, office and clerical staff, students employed in a co-operative training programme, students employed during the school vacation period and persons in bargaining units for which any trade union holds bargaining rights as of April 10, 1991.

In addition, the applicant is seeking a Board order that the BGH is bound by the provisions of the collective agreement which the applicant had with St. Joseph's Hospital, Brantford, dated March 15, 1993.

2The hospitals have agreed with OPSEU that the transfer of the laboratory services constitutes a "sale of a business" for the purposes of the Labour Relations Act. The questions before the Board are therefore whether there has been an intermingling of employees of the BGH and SJH; what, if any, is an appropriate bargaining unit; and, does the collective agreement continue to operate.

3Over the course of three days of hearing, the parties called three witnesses and the St. Joseph's Hospital, Brantford, submitted an agreed statement of facts. The facts relied upon in reaching a decision are outlined below and were largely uncontested.

THE FACTS

4The applicant (hereinafter also referred to as the "union" or "OPSEU"), has been the certified bargaining agent for all paramedical employees of the St. Joseph's Hospital, Brantford, since April 10, 1991. The relevant clauses of the collective agreement between OPSEU and SJH read as follows:

ARTICLE 2- SCOPE AND RECOGNITION

2.01 The hospital recognizes the Union as the exclusive bargaining agent for all paramedical employees of St. Joseph's Hospital, Brantford, Ontario save and except supervisors, persons above the rank of supervisor, professional medical staff, office and clerical staff, students employed in a co-operative training programme, students employed during the school vacation period and persons in bargaining units for which any trade union holds bargaining rights as of April 10, 1991.

ARTICLE 4- DEFINITIONS

4.01 Paramedical includes occupational therapists, speech therapists, speech pathologists, physiotherapists, therapeutic and administrative dieticians, registered and non-registered laboratory technologists, registered and non-registered pathology technologists, radiological technologists (radiography), radiological technologists (nuclear medicine), registered and non-registered respiratory technologists, registered and non-registered EEG, ECG and opthamology technicians, registered and non-registered ultrasound technologists, glaucoma technicians, ear, nose and throat technicians, cardiovascular technicians, electro-encephalographists, electrical shock therapists, laboratory technicians, laboratory assistants, psychometrists, pharmacists, psychologists, remedial gymnasts, social workers, child care workers, nutritionists, dental health educators and bio-medical technicians, tissue processor, day hospital aide, chiropodists, profusionists, recreational therapists, respiratory therapy aides, laboratory aides, non-registered physiotherapy aides, occupational therapy aides, registered medical laboratory technologists, non-registered medical laboratory technologists, registered cytology technologist and others as may be added from time to time by mutual agreement of the parties.

5The St. Joseph's Hospital, Brantford, is a 120-bed hospital providing a wide range of services to its long-term care, elderly, population and has facilities for elective surgery. Prior to the transfer of the Laboratory Department to the Brantford General Hospital, the SJH had nine departments covered by the paramedical collective agreement with OPSEU, Local 219, which included the following: Cardio Pulmonary Services, Chiropody, Food and Nutrition Services, Laboratory Radiology, Recreation Therapy, Social work/Volunteer Services, Occupational Therapy, Physiotherapy, and Speech. Between fifty-five and sixty employees were members of this bargaining unit.

6The Laboratory Department at the SJH was comprised of testing areas for Histology, Chemistry, and Hematology, and it did specimen collection. Fourteen of the applicant's members were employed in this department in the classifications of Senior Technologist, Technologist, and Laboratory Aide. The laboratory performed both "stat" (emergency testing, where the result was required as soon as possible), and "routine" testing. Tests were requisitioned by nurses or ward clerks on the instructions of a doctor.

7The Brantford General Hospital is a 303-bed community hospital providing a full range of primary and secondary care services, as well as some tertiary care services. It has the only Emergency Department in Brant County. The BGH and the SJH are located three kilometers apart in Brantford.

8The BGH Laboratory Services department performs "stat" and "routine" testing. It consists of a number of sections: Chemistry, Microbiology, Hematology, Blood Bank, Anatomical Pathology, Nuclear Medicine, Respiratory, EEG, and a satellite service at the Willett Hospital in Paris, Ontario. Prior to April 1994 it employed fifty-seven employees in the Laboratory Services, not including management and clerical staff, and three Pathologists. A paramedical unit of the BGH, if inclusive of all categories of employees in the SJH paramedical bargaining unit, would consist of approximately 140 employees. The paramedical employees at the BGH are not represented by any trade union, although there was some evidence that there have been attempts to organize them, the last being in 1992.

9Sometime prior to January 26, 1994, the Chief Executive Officers of the two responding parties asked their respective laboratory managers to work together to prepare a discussion paper regarding the cost effectiveness of the two hospitals continuing to carry on separate laboratories.

10A discussion paper, dated January 26, 1994, was prepared jointly by Norm Crowe, for the BGH, and Rosemary Luska, for the SJH, which considered the implications of having combined, hospital-based, laboratory services with some potential for cost-savings and efficiencies, if SJH passed on all of its laboratory work to the BGH. The study was done with the proviso that although the BGH would perform all "routine" testing for SJH, it would provide a "stat" laboratory at the SJH premises. Collection services would continue to be located at the SJH with the routine samples then being sent to the BGH for testing.

11The study assumed the "stat" laboratory would conduct only a limited number of emergency tests, based on past clinical needs at the SJH. Hence, where the SJH laboratory had been licensed by the Ministry of Health to perform 66 tests previously, the study envisaged a menu of only thirteen tests being performed should the transfer of services occur. The hours of operation for the laboratory were to be similar to those at the time, but after-hours coverage was to be dealt with in a more cost-effective manner.

12Since 1980 the two responding parties have co-operated in the transfer of transfusion services, cystology testing, special chemistry testing and microbiology from SJH to the BGH.

13As a result of the Laboratory Services study, it was believed that SJH could realize an annual saving of $406,000 if it transferred the conduct of its laboratory services to the BGH. In addition to the cost savings the hospitals would be able to have standardized diagnostic laboratory and pathology services, could implement a laboratory information system common to both hospitals, and could create a central patient laboratory data base for all of the Brant County hospitals since the BGH was already providing the laboratory services at the Willett Hospital in Paris.

14Following discussions between the hospitals, on April 5,1994, SJH transferred its Laboratory Services to the BGH on the following terms:

(i) St. Joseph's Hospital agreed to pay Brantford General $620,000 per year for providing Lab Services (based on St. Joseph's Hospital supplying 877,950 units per year);

(ii) Brantford General Hospital agreed to maintain a "stat" lab on St. Joseph's Hospital premises. This lab would be less than one-third the size of the original St. Joseph's Hospital lab. The hours of operation of the "stat" lab would be 0700 - 2300 Monday to Friday, and 0700 - 1500 on Saturdays, Sundays and Statutory Holidays. Outside these hours, "stat" testing would be conducted at Brantford General Hospital;

(iii) Brantford General Hospital would collect "routine" testing for St. Joseph's Hospital from 0800 - 1600 Monday to Friday (statutory holidays not included).

15While there had been fourteen full and part-time employees who were OPSEU members working for the SJH Laboratory Department prior to April 5, 1994, following the transfer only five full and part-time people remained working in the "stat" laboratory at SJH, and two part-time employees transferred to the BGH main laboratory. The remaining laboratory employees were laid off from SJH, except for one employee who was receiving long-term disability benefits. The applicant is not seeking representation rights for the two employees transferred to the BGH laboratory.

16The BGH stressed in its evidence the high level of integration of the previous SJH laboratory services into the BGH laboratory services. A new supervisor at the BGH (who used to be the laboratory manager at St. Joseph's Hospital) is to be responsible for the day to day operation of the "stat" laboratory and the collection services at the SJH, and the collection services at the Willett Hospital; she will also be responsible for supervision of the phlebotomists at the BGH laboratory, in-patient and out-patient collections, and a new centralized specimen-collection handling system at the BGH.

17As a result of the transfer agreement the "stat" laboratory and the collection centre at the SJH will be one third the size of the original SJH laboratory services and almost all routine testing will be conducted at BGH premises. SJH had a Ministry of Health license to perform sixty-six tests at its laboratory. As a result of the transfer SJH has requested that the license be amended to allow only thirteen "stat" tests to be performed at the "stat" laboratory at SJH, and that the license indicate that the BGH will be performing those thirteen tests. Between 0700 and 2300 hours, Monday to Friday, and 0700 and 1500 hours on Saturdays, Sundays, and statutory holidays, all "stat" testing will be done at the SJH laboratory. Any "stat" tests needed outside those hours are sent by taxi to the BGH main laboratory where the testing is performed on an emergency basis. All of the emergency testing at SJH amounts to 5 per cent of the total laboratory testing work which has been transferred to the BGH.

18Some changes were made at the BGH to accommodate the increase in the routine testing to be conducted there as a result of the transfer. Two part-time employees were added, from among the previous SJH staff complement; part-time staff at the BGH were given more hours, and a central specimen handling system was put in place. The BGH now holds the service contracts for the equipment used at the SJH "stat" laboratory, it moved some testing equipment to the main laboratory, and it installed a new piece of equipment to improve urinalysis testing at the SJH. To reduce the number of "stat" requests for glucose tests at the SJH, the BGH introduced new glucometers for bedside testing by nurses and trained the nurses on the use of the new meters. The BGH has installed computers at the "stat" laboratory to track specimens and to link its laboratory information system to the "stat" laboratory in an effort to streamline paperwork and to provide a central data base. There was some evidence of plans for the future for equipment, staffing, and hours of operation of the "stat" laboratory; however, for the purposes of this decision, it is unnecessary to outline that evidence.

19The Brantford General Hospital had indicated to the staff of the SJH laboratory in January 1994 its plans to rotate Registered Technologists through the "stat" laboratory and the main laboratory to maintain the competence of the technologists. The rotation was to begin approximately eight to ten weeks after the transfer of services to ensure a smooth transition at the outset. At the time of the hearing the transfer had occurred about four weeks previously and no rotation was operational. Since the "stat" laboratory employees would only be conducting 13 tests, and there would be a limited volume of tests, it is believed they will have exposure to limited, basic testing, without the benefit of seeing abnormal or interesting patient cases. At the main laboratory Registered Technologists are exposed to a large volume of samples, a larger complement of laboratory testing, more sophisticated equipment, and there is therefore a greater opportunity for continuing education and to maintain competency. At present, whenever there are absences due to vacation, sick days, or social contract days, BGH staff fill in at the "stat" laboratory. All "stat" laboratory employees at the SJH have been given an orientation to the BGH main laboratory and are getting a two day orientation to the whole Brantford General Hospital. They will also receive two to three days of computer training. The "stat" laboratory employees are expected to attend eight staff meetings per year at the main laboratory and to attend the in-house continuing education program run by the pathologists at the main laboratory. BGH staff have worked in the "stat" laboratory setting up equipment, moving some equipment out, and assisting in the clean-up of the laboratory. Supervisors from the main laboratory have been to the "stat" laboratory frequently to standardize any tests which had not already been standardized, to ensure accuracy of the tests, and to check equipment, as the BGH is now responsible for all of the testing and maintenance of equipment at the "stat" laboratory. There is day to day communication between the SJH "stat" laboratory staff and the BGH main laboratory staff. A pathologist at the main laboratory may ask a technologist at the "stat" laboratory to conduct a specific test as required.

ARGUMENTS

20OPSEU argued that since the "stat" laboratory has remained operational at SJH with former SJH bargaining unit employees doing the same work as they did previously, and since there has been no intermingling, section 64(6) of the Act should not be considered. The applicant is seeking a bargaining unit composed of the "stat" laboratory employees at the SJH location only. In the event that the Board finds there has been intermingling, the applicant suggests that all of the laboratory employees of the BGH would comprise an appropriate bargaining unit and that the Board should order a vote to be held among all of the laboratory employees of the BGH.

21The BGH argued that the BGH has taken over the SJH laboratory services in their entirety, that the nature of the business has been changed substantially, that staff have been intermingled, and that the operations are now completely integrated, so that section 64(6) does become operational. The BGH argued further that the Board should not find a five-person bargaining unit made up of the "stat" laboratory alone as a viable unit given the level of integration of the operations of the laboratories. It also argued that since the percentage of SJH employees who had come into the BGH laboratory was miniscule in comparison to the number of BGH laboratory employees or to the paramedical employees at the BGH, the Board should decide the matter without directing a vote.

22The SJH also argued that there had been an intermingling of operations and employees, that section 64(6) should therefore apply, and that the Board should not find the bargaining unit proposed by the applicant to be an appropriate bargaining unit.

23The concern of the BGH is that if the "stat" laboratory becomes a separate bargaining unit the skill levels of the technologists will decrease quickly because they will not be exposed to the full range of testing they have heretofore been exposed to, they will be isolated from the staff at the BGH main laboratory, and their ability to transfer to positions in the main laboratory would be compromised because they would not possess the same skills as the technologists at the main laboratory. In addition, since the technologists at the "stat" laboratory would have limited exposure to abnormal tests, an abnormality in a patient's test may slip by them, thereby compromising patient care. The staff at the collection centre at the Willett Hospital, in Paris, Ontario, have been rotating through the main BGH laboratory for some time and the BGH had envisaged the same routine for the SJH "stat" laboratory staff.

24The union's concerns about the loss of bargaining rights for the "stat" laboratory employees are that some employees would be paid less than they were receiving as employees of SJH and will receive lower benefits, employees will not have seniority rights at the BGH, and they may be laid off without any bumping rights since the BGH does not layoff in order of seniority. As well, since attempts to organize the BGH laboratory employees had failed in the 1980's and again in 1992, the union believed the "stat" laboratory employees would not have any access to collective bargaining in the future and so the union was seeking to preserve their present bargaining rights.

DECISION

25The following sections of the Act are relevant to this proceeding:

64.(1) In this section,

"business" includes one or more parts of a business; ("entreprise")

"predecessor employer" means an employer who sells his, her or its business; ("employeur precedent")

"sells" includes leases, transfers and any other manner of disposition; ("vend")

"successor employer" means an employer to whom the predecessor employer sells the business. ("employeur qui succede")

(1.1) This section applies when a predecessor employer sells a business to a successor employer.

(2) If the predecessor employer is bound by a collective agreement, the successor employer is bound by it as if the successor employer were the predecessor employer, until the Board declares otherwise.

(3) If, when the predecessor employer sells the business, a trade union is the bargaining agent for any employees of the predecessor employer, has applied to become their bargaining agent or is attempting to persuade the employees to join the trade union, the trade union continues in the same position in respect of the business as if the successor employer were the predecessor employer.

(4) An interested person, trade union or council of trade unions may apply to the Board to determine,

(a) a question concerning the scope of bargaining rights of the trade union referred to in subsection (3); or

(b) a conflict in the bargaining rights of the trade union referred to in subsection (3) and another trade union representing employees of the successor employer.

(4.1) On an application under clause (4)(a), the Board may alter the composition of the bargaining unit for which the trade union referred to in subsection (3) holds bargaining rights.

(4.2) On an application under clause (4)(b), the Board may alter the description of a bargaining unit in a certificate issued to any trade union or the definition of a bargaining unit in a collective agreement.

(5) An interested person, trade union or council of trade unions may apply to the Board within sixty days after the predecessor employer sells the business for the termination of the bargaining rights of the trade union referred to in subsection (3).

(5.1) On an application under subsection (5), the Board may terminate the bargaining rights of the trade union only if it considers that the successor employer has changed the character of the business so that it is substantially different from the business of the predecessor employer.

(6) This subsection applies if the successor employer carries on one or more other businesses and the successor employer intermingles the employees of the business sold to him, her or it with those of another business. On application, the Board may,

(a) declare that the successor employer is no longer bound by the collective agreement to which the predecessor employer was bound;

(b) determine the unit or units of employees that are appropriate for collective bargaining;

(c) declare which trade union or council of trade unions, if any, becomes the bargaining agent for the employees in each of the bargaining units;

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

(e) define or redefine the seniority rights under any collective agreement of the employees concerned.

(7) Where a trade union or council of trade unions is declared to be the bargaining agent under clause (6)(c) 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 the 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, despite the fact 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) A declaration under subsection (6) has the same effect as a certification under section 9.1, for the purposes of sections 5 (application for certification), 58 (application for termination), 60 (termination of bargaining rights), 62 (application for certification or termination) and 125 (application for termination).

(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 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.

26As outlined earlier, the responding parties have agreed that for the purposes of the Labour Relations Act the transfer of the laboratory services from the St. Joseph's Hospital, Brantford, to the Brantford General Hospital constitutes the "sale of a business" within the meaning of section 64. Pursuant to section 64, the Board therefore declares that there has been a sale of the laboratory from the SJH to the BGH on April 5, 1994.

27Section 64(2) deals with the consequences of a sale of a business and preserves the trade union's rights with respect to transferred employees until such time as the Board determines otherwise. In this case, the Brantford General Hospital has been in compliance with the Act and all former SJH bargaining unit employees who are now employed by the BGH have been receiving the wages and benefits which flow from the collective agreement between the St. Joseph's Hospital, Brantford, and OPSEU.

28Brantford General Hospital argued that following the transfer there was a substantial change in the business and that section 64(5.1) should therefore be applied by the Board. The onus is on this responding party to demonstrate that the nature of its business is substantially different than the SJH laboratory services, the predecessor employer.

29In Winco Steak n' Burger Restaurants Limited, [1974] OLRB Rep. Nov. 788, the Board considered whether following the sale of a business the new owner had so changed the character of the business so that it was substantially different from the business of the predecessor employer. The new owner had changed the restaurant menu, the appearance and atmosphere of the premises, and was providing alcoholic beverages. The Board in that case stated the following:

…..the Board takes the view that the words "substantially different" must be viewed by the Board in the formulation of its opinion as involving a fundamental difference affecting the nature of the work requirements and skills involved in the business to the extent that continued representation by the trade union would be inadequate, inappropriate or unreasonable in all the circumstances of the particular case under review.

30From the evidence led, it would appear that the work being performed by the BGH after the transfer is substantially the same as the work that was being performed at the SJH prior to the transfer. Both "stat" and "routine" testing is still being done, indeed, the very reason for the transfer was that the BGH could apparently do the same work more efficiently and at less cost than could the SJH. To the extent that there has been any change, it is that the location of the testing has changed so that only "stat" testing and specimen collection continues to be provided at the St. Joseph's site. The routine testing is now being conducted three kilometers away at the BGH laboratory where both "stat" and routine testing has been carried out for some time. Registered Technologists, some of whom are the same employees who did the testing prior to the transfer, are still performing the tests. Some of the equipment used is the same, and at the "stat" laboratory, the same Ministry of Health licence is still operational.

31Further, there is nothing in the evidence to suggest there is a fundamental difference between the skills required or the work which is being done by the employees now and what they were doing prior to the transfer. There is therefore no substantial change in the nature of the business which has been transferred, and the Board declines to terminate the applicant's bargaining rights on the basis of section 64(5.1).

32Both of the hospitals argued that there has been an intermingling of services of the two hospitals and of the unorganized employees of the BGH with the bargaining unit members of OPSEU from the original SJH unit, and that section 64(6) of the Act should therefore be applied, that the Board should declare that the BGH is no longer bound by the collective agreement, and that the bargaining unit the applicant is seeking is not an appropriate bargaining unit.

33The applicant argued that it would be premature for the Board to find that there had been intermingling of the employees of the SJH laboratory services with the employees of the BGH and referred the Board to the City of Peterborough, [1979] OLRB Rep. Feb. 133 decision. In that case there was a transfer of a municipal bus service from a franchise operator back to the City of Peterborough, and in anticipation of the transfer, and preceding the transfer, there were inspections done of equipment by City employees who belonged to a different union than the one representing the employees of the bus company. By the time of that hearing there had been no merger of the bus service employees with the City employees, each group continued to work at separate jobs, with separate equipment, and out of separate locations, just as they had prior to the sale. The Board found there had been no intermingling of employees that would trigger what is now section 64(6) of the Act.

34The evidence in this case is different than that found in the City of Peterborough, supra. In the case before us there appears not to have been any regular interchange of employees between the "stat" laboratory and the main laboratory yet, although it is anticipated. However, there have already been occasions when main laboratory technologists have filled in for absent technologists at the "stat" laboratory, for vacations, sick days, social contract days, and while one union witness was at the Board giving evidence in this case. Main laboratory technologists worked at the "stat" laboratory at SJH to move equipment, set up equipment, and to clean out the old laboratory. Supervisors from the main laboratory have been at the "stat" laboratory to calibrate and check equipment in preparation for standardized testing. "Stat" laboratory employees have been to the main laboratory for some days of orientation to the equipment at the main laboratory and to the Brantford General Hospital itself. These employees will be receiving training on the BGH computer system so that they will be able to use the centralized patient information system utilized by the BGH laboratory. In addition to the examples of intermingling outlined above, there were also two part-time SJH employees who have already gone over to the main laboratory and have begun to work there. The transfer was only four weeks old at the time of the hearing and already there were a number of examples demonstrating the integration of employees of the two operations outlined above.

35In Caressant Care Nursing Home of Canada Limited, [1984] OLRB Rep. August 1060, the Board considered what section 64(6) [then 63(6)] was meant to address and stated as follows:

32. ... It is true that the subsection speaks of the purchaser intermingling the employees of one business with those of another. But that appears to be simply a more precise way of referring to the intermingling of the businesses themselves: it is in fact the "employees" of the businesses who are capable of being "intermingled". The focus of section [64] 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....

Reflecting the Board's view in Caressant Care in Kitchener-Waterloo Hospital, [1991] OLRB Rep. Oct. 1130, in a situation similar to the one in this case, the parties agreed there had been "intermingling" within the meaning of section 64(6) even though there had been no intermingling of employees.

36In the case before us, the responding parties specifically contemplated the take-over of the SJH laboratory services by the BGH laboratory services and agreed that the BGH would staff a "stat" laboratory and perform collection services at the SJH premises. After the "stat" laboratory hours however the "stat" work has to go to the BGH laboratory. Collection services are necessary at the SJH because test samples have to be collected to be transported to the BGH laboratory. The "stat" laboratory at the SJH is not a stand-alone operation, but is a satellite location of the BGH laboratory services designed to meet a customer need, now that the SJH is the customer. As the evidence disclosed, it is an integrated part of the BGH operation which cannot provide services on its own without the Brantford General Hospital superstructure.

37For all of the above reasons, the Board finds that there has been an intermingling of the employees of the former SJH laboratory with the BGH laboratory services, as contemplated by section 64(6) of the Act, and there has been an integration of the two services into one Brant County hospital laboratory service.

38Having found that there has been intermingling of the employees and services of the SJH and the BGH employees, we must now determine what, if any, is an appropriate bargaining unit, and whether or not the BGH is bound by the OPSEU collective agreement.

39The applicant has asked that the Board preserve the bargaining rights of the "stat" laboratory employees located at SJH only as they were already represented by a trade union and may not have an opportunity to be so represented again if a "stat" laboratory bargaining unit" is not granted by the Board. They do not seek any representation rights for employees working in the laboratory located at BGH, even though they may be doing "stat" testing.

40In all of the cases the Board was referred to by the applicant the successor employer took over the complete operation in question so that the whole original bargaining unit was transferred. Where there had been little or no intermingling of employees, the Board did find that the original bargaining unit was an appropriate one and preserved the bargaining rights of the employees and their trade union. See The Oshawa Wholesale Limited, [1965] OLRB Rep. Feb. 584; City of Peterborough, [1979] OLRB Rep. Feb. 133. In Oshawa Wholesale the Board held that the trade union should continue to hold bargaining rights in a like bargaining unit, and that therefore in deciding these types of cases the Board should not only consider what would be an appropriate bargaining unit, as it does in certification applications, but also must take into account the scope of the bargaining unit already in existence. These cases referred to by the applicant were all adjudicated when what was then section 63(4) required the Board to consider "the like bargaining unit". Amendments to the Act have removed any references to "the like bargaining unit" and the Board is now mandated to determine the unit which is "appropriate for collective bargaining" (64(6)(b)).

41In The Municipality of Metropolitan Toronto, [1992] OLRB Rep. March 315, the Board considered a situation where there had been the intermingling of two organized groups of employees when the Municipality purchased a nursing home. The Board recognized that if there has been an intermingling of employees the new labour relations realities of that situation may make ineffective or undesirable any attempt to maintain boundaries which had previously been established since there may have been a concurrent intermingling of the work or job opportunities themselves. In that case, the Board. noted that the predecessor business had been completely absorbed and adapted into the successor business, workers of both were working side by side, and they were doing similar work. The Board declined to award the applicant in that case a separate bargaining unit for the employees of the predecessor employer.

42In this case there is no doubt that a coherent and severable portion of the St. Joseph's Hospital services was transferred to the Brantford General Hospital and that the BGH has continued to provide the same type of services as the SJH was providing. However, OPSEU is not seeking a preservation of a bargaining unit like the one it had at the St. Joseph's Hospital, it is seeking a unit made up of only the "stat" laboratory employees at the SJH location. In the alternative, OPSEU is seeking a unit comprised of all of the laboratory services at the BGH. The bargaining unit at SJH was an "all paramedical employees" unit and included in that grouping the laboratory services employees, from "stat" and "routine" testing. The applicant is therefore seeking a bargaining unit which is a fragment of the one it had at SJH.

43The applicant requested that the Board consider the union's ability to organize the laboratory services employees at the BGH. As outlined earlier, there have been attempts to organize these employees, as recently as in 1992, and there has been no success. We agree with the sentiments expressed by the Board in K Mart Canada Limited, [1981] OLRB Rep. Sept. 1250, that there must be a balancing of the statutory objectives in the circumstances of each case. The Board there stated:

8. Although the Board must be sensitive to the impact of its bargaining unit determinations upon the ability of trade union' to organize, there are other factors which must also be taken into account. The objectives of the statute relate not only to the promotion of collective bargaining as a means of determining terms and conditions of employment, but also to a recognition of the principle of individual freedom of choice, and to the creation and maintenance of sound and viable bargaining structures. In determining the appropriate bargaining unit the Board does not give effect to one of these aims to the exclusion of the others.

44In Kitchener-Waterloo Hospital, supra, the Ontario Nurses Association (ONA) was seeking a bargaining unit comprised only of all nurses working in the Obstetrics and Paediatrics Departments, and not an "all nurses" bargaining unit, in circumstances not dissimilar to those in the case before this panel. At St. Mary's Hospital (the predecessor employer) ONA had represented an "all nurses" unit. At Kitchener-Waterloo Hospital the nurses were treated by the employer as one group for labour relations purposes. The Board concluded that "all nurses" units were appropriate in that case and stated as follows:

47. In balancing these considerations, we nevertheless cannot accept the unit sought by ONA. We do not consider a bargaining unit consisting of only 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 O.N.A. 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.

45On the facts before us, it would appear that the applicant is seeking a bargaining unit of one small part of a laboratory service, or alternatively, the whole of the laboratory service, but to the exclusion of the rest of the BGH paramedical staff. While the SJH laboratory employees have an interest in being represented by a trade union, the rest of the BGH laboratory staff appear not to have expressed any desire to be represented by a trade union, and the evidence discloses an integrated laboratory service in which the "stat" laboratory is but a small part. As outlined earlier, the "stat" laboratory is not an atomized portion of the laboratory service: it has common supervision with other portions of the BGH laboratory; employees and supervisors from the main laboratory have worked at the "stat" laboratory; after-hours services are provided at the main laboratory; "stat" laboratory employees have been to the main laboratory for training on the equipment there and the plan from the beginning was to rotate employees through the two laboratories; and, two employees from the SJH laboratory have transferred to the main laboratory. While there is no presumption in favour of the most comprehensive bargaining unit, to put up a figurative wall between the small SJH "stat" laboratory and the rest of the BGH laboratory services would not create a viable and stable unit for the purposes of collective bargaining, would cause excessive fragmentation in a relatively small laboratory operation, and would create considerable labour relations problems for the BGH. In the circumstances of this case the Board does not find a bargaining unit comprised of the "stat" laboratory at the SJH to be an appropriate bargaining unit.

46We turn now to a consideration of the appropriateness of a bargaining unit comprised of all the laboratory services of the Brantford General Hospital at both locations. The Board has found on numerous occasions that a bargaining unit made up of all paramedical employees is an appropriate bargaining unit at a hospital as such a configuration avoids undue fragmentation and the possibility of there being a number of collective agreements for like employees in one workplace. For reasons similar to those outlined in the paragraph above, and in Kitchener- Waterloo Hospital, supra, we do not consider a bargaining unit consisting of one department of a multi-department hospital to be an appropriate unit for collective bargaining purposes. We therefore conclude that the appropriate bargaining unit would be described as including all paramedical employees of the Brantford General Hospital, with the usual exceptions.

47Pursuant to section 64(8) of the Act the Board may order that a representation vote be held if it considers it appropriate in the circumstances. A vote would determine if the paramedical employees of the BGH wish to be represented by the applicant. In cases of intermingling the Board considers the relative percentages of the unionized and non-unionized employees in deciding whether a representation vote should be held (see Bermay Corporation Limited, [1980] OLRB Rep. Feb. 166; Silverwood Dairies, [1980] OLRB Rep. Oct. 1526; and Kitchener-Waterloo Hospital, [1991] OLRB Rep. Oct. 1130). Where there is a large disparity between the two groups and the unionized employees are in a significant minority, the Board may exercise its discretion to decide the matter without a vote being held. In Kitchener-Waterloo Hospital no vote was ordered since approximately 9% of the employees of the bargaining unit were then part of the larger nonunion successor employer nursing unit. In Mountain View Dairy Limited, [1967] OLRB Rep. Feb. 911 the Board declined to direct that a representation vote be held when the unionized employees represented only 13% of the total intermingled group.

48As outlined earlier, a total of seven full and part-time SJH bargaining unit employees have been transferred to the BGH laboratory operation. Prior to the transfer, there were 140 BGH employees who could have been considered appropriate for inclusion in a paramedical unit of the type present at the SJH, of which the SJH laboratory employees were a part. The SJH employees who have become BGH employees therefore represent approximately 4.76% of all paramedical employees of the BGH. The Board therefore exercises its discretion to decline to direct that a vote be held in this case as the vast majority of the employees in the voting constituency would be nonunion employees who have not expressed any interest in being represented by the applicant.

49We declare that OPSEU is no longer the bargaining agent for any of the Brantford General Hospital laboratory employees and that the applicable collective agreement is no longer binding upon the Brantford General Hospital.

50The final issue to be determined, having regard to section 64(6)(a), is when OPSEU's bargaining rights should be considered to have terminated. The responding parties have argued that the operative date should be the date of the sale, April 5, 1994. The applicant took no position.

51In Kitchener-Waterloo Hospital, [1993] OLRB Rep. March 187, the Board addressed this issue in the context of a sale of a part of a business from the St. Mary's Hospital to the Kitchener-Waterloo Hospital. The Board determined that it had "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 the issuing the declarations". We concur with the following statement of the Board in that case:

14. 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.

52The BGH has been complying with the terms of the OPSEU collective agreement, and while the BGH is seeking termination of OPSEU's bargaining rights as of April 5, 1994, it is not seeking any other remedy flowing from such a declaration. Since the applicant took no position with respect to the effective date of the declarations, and since there appears to be no practical effect of making the declarations effective on April 5, 1994, the Board finds it appropriate that the declarations outlined above should be effective as of the date of sale, April 5, 1994.