Perth and Smiths Falls District Hospital v. Ontario Public Service Employees Union, 1997 CanLII 15576

Perth and Smiths Falls District Hospital v. Ontario Public Service Employees Union

[1997] OLRB REP. MAY/JUNE 491

1774-96-R Perth and Smiths Falls District Hospital, Applicant v. Ontario Public Service Employees Union, Canadian Union of Public Employees and its Local 2119, Association of Allied Health Professionals: Ontario, Independent Canadian Transit Union and its Local 6, Responding Parties v. Non-Union Employees, Perth and Smiths Falls District Hospital, Intervenor

BEFORE: Laura Trachuk, Vice-Chair.

APPEARANCES: Donna Guidolin, Shirley Rogers and Caroline Mattley for the applicant; Kelly Waddingham, Richard Blair, David Wright, Bill McNicol and Roger Haley for Ontario Public Service Employees Union; Martha Rans, Betty Sommers and Doreen Beath for Canadian Union of Public Employees; Susan Ursel, Sylvia Davis, Maureen Fraser and Chris Luscombe-Mills for Association of Allied Health Professionals: Ontario; Nelson Roland, Dilip Yoga Sundram and Cindy Read for Independent Canadian Transit Union; David Burns for the Non-Union Employees.

DECISION OF THE BOARD; June 24, 1997

1. This is an application under section 69 of the Labour Relations Act, 1995. In a decision dated March 20, 1997 the Board held that an intermingling of employees had occurred between the members of the numerous bargaining units represented by the responding parties. The Board held that the bargaining units should be combined into two bargaining units as requested by the applicant (referred to as the hospital). The Board also directed that two representation votes be held to determine which bargaining agent should represent the employees in each bargaining unit.

2. The Board directed that a representation vote be held to determine whether the Association of Allied Health Professionals: Ontario (referred to as AAHP:O) or the Ontario Public Services Employees Union (referred to as OPSEU) would represent the employees in the following bargaining unit:

all paramedical employees of the Perth and Smiths Falls District Hospital, save and except supervisors and persons above the rank of supervisor.

3. The Board also directed that a representation vote be held to determine whether OPSEU, the Canadian Union of Public Employees, Local 2119 (referred to as CUPE) or the Independent Canadian Transit Union, Local 6 (referred to as ICTU) would represent the employees in the following bargaining unit:

all employees of the Perth and Smiths Falls Hospital, save and except supervisors, those above the rank of supervisor, professional and medical staff, registered, graduate nurses and undergraduate nurses, graduate and student dieticians, paramedical employees, the Secretary to the Administrator. the Secretary to the Business Manager, the Secretary to the Director of Nursing, students employed during the school vacation period and employees covered by the collective agreement with the Canadian Union of Operating Engineers and the Independent Canadian Transit Union at Smiths Falls.

Prior to the vote taking place ICTU withdrew from the ballot.

4. In an earlier decision dated October 13, 1995 the Board (differently constituted) declared that a sale of a business occurred when the Smiths Falls Community Hospital and the Great War Memorial Hospital of Perth District merged to become the Perth and Smiths Falls District Hospital, However, in that decision the Board found that as of the date of that hearing the applicant had failed to demonstrate that sufficient intermingling of employees had occurred or would occur to warrant the direction of a representation vote. The applicant has now proceeded further with respect to the merger of the hospitals and renews its request that a vote be directed in each of two combined bargaining units, a service/office/clerical unit and paramedical unit. The applicant also filed a request for reconsideration of the Board's October 1995 decision but that request was withdrawn prior to the commencement of this hearing.

5. The Board heard many days of evidence and argument with respect to this application and determined that intermingling had occurred which warranted the merger of the bargaining units and the holding of representation votes as described above. The following are the reasons for the Board's "bottom line" decision of March 20, 1997.

The Facts

6. The relevant facts are as follows. The Perth and Smiths Falls District Hospital operates out of three physical plants. There is a North Unit and a South Unit in Smiths Falls which together were formerly the Smiths Falls District Hospital. There is also a site in Perth which was formerly the location of the Great War Memorial Hospital of Perth. The Perth site and the North Unit in Smiths Falls are twenty-two kilometres apart. The hospital is closing the South Unit at Smiths Falls. It hopes to redevelop the North Unit but has not yet received approval from the Ministry of Health. In the meantime, the services offered at the South Unit are being transferred to the North Unit and to Perth.

7. Both the Perth and Smiths Falls sites maintain active treatment facilities. The Perth site is comprised of a 24-hour emergency room service, operating room and recovery room services, special care services, medical and surgical and long-term care and rehabilitation services. The Smiths Falls site consists of 24-hour emergency services, operating room and recovery room services, obstetrical services, medical/surgical services, special care services and long-term care.

8. The management of the hospital has been fully integrated. There is a manager for each service covering both sites, as well as a manager for each treatment department, i.e. there is one patient care manager for the emergency rooms at both sites, one patient care manager for medical/surgical at both sites, etc.

9. At the time of the merger, CUPE represented full-time and part-time "service" bargaining units at the Smiths Falls site. OPSEU represented full-time and part-time "clerical" units and full-time and part-time "service" units at the Perth site. It is OPSEU's position that the four bargaining units are in fact a single bargaining unit even though they were certified separately. It appears that the collective agreement negotiations are conducted jointly although separate seniority lists continue to be maintained. ICTU represents a unit of full-time stationary engineers and maintenance workers at the Perth site as well as a unit of full and part-time stationary engineers at the Smiths Falls site. However, the hospital withdrew its application with respect to ICTU's bargaining unit at Smiths Falls. Subsequent to the official incorporation of the new hospital on March 31, 1995 OPSEU organized a bargaining unit of paramedical employees including both full-time and part-time workers at the Perth site and AAHP:O organized a bargaining unit of full-time and part-time paramedical employees at the Smiths Falls site. AAHP:O also represents laboratory staff at the Perth site as a result of a "sale of business" in acquiring the laboratory (see paragraph 19 below), There are therefore four unions representing either seven or ten bargaining units (depending on how OPSEU's units are characterized) involved in this application. There are approximately five hundred and twenty employees in those bargaining units.

10. The Canadian Union of Operating Engineers also represents a bargaining unit of stationary engineers. However, the application against that union was withdrawn at the outset of the hearing. The Ontario Nurses Association represents a merged bargaining unit of registered and graduate nurses at both sites,

11. There is also a group of non-union clerical employees at the Smiths Falls site who have intervened in this application.

12, The scope clause in the OPSEU collective agreement for two of its bargaining units, the ICTU collective agreement and the bargaining unit description in the certificate for the OPSEU paramedical unit describe representation rights in the Town of Perth. The scope clause for the other two OPSEU bargaining units do not refer specifically to the Town of Perth. The scope clause in the CUPE collective agreement and in the AAHP:O certificate describe representation rights in the Town of Smiths Falls.

13. The OPSEU, CUPE and ICTU collective agreements have all expired and not yet been renegotiated. The OPSEU paramedical unit and AAHP:O have both yet to negotiate their first collective agreements.

14. The history of the merger of the two hospitals up to July, 1995 is set out in the Board's decision dated October 13, 1995 and will not be repeated here. However, one of the matters not dealt with in that proceeding was the effect, if any, of the application for certification filed by AAHP:O on May 17, 1995. The parties agreed to adjourn that certification proceeding pending the outcome of the hospital's application. AAHP:O had intervenor status in those proceedings. On November 20, 1995 AAHP:O was certified as the bargaining agent for "all paramedical employees of Perth and Smiths Falls District Hospital in the Town of Smiths Falls."

The July 8. 1996 Agreement

15. On April 10, 1996 AAHP:O applied to represent the paramedical employees represented by OPSEU at the Perth site. A vote was held and AAHP:O was unsuccessful.

16. Three employees, a physiotherapist, a speech pathologist and an occupational therapist who were hired at the Smiths Falls site but rotated to the Perth site were excluded from the vote at Perth. AAHP:O subsequently took the position that the three individuals were not represented by any bargaining agent and applied to represent them. OPSEU objected and claimed that they were in the OPSEU bargaining unit. The parties reached a settlement on July 8, 1996 which provides as follows:

Board File #3616-94-R

0452-96-R

BETWEEN:

Association of Allied Health Professionals: Ontario

and

Ontario Public Service Employees Union

and

Perth and Smiths Falls District Hospital

MINUTES OF SETTLEMENT

The parties agree to the following terms as full and final settlement of all outstanding issues between them in the above matters:

(1) The parties agree that Physiotherapists employed at the Smiths Falls site may be assigned on a rotational basis to work at the Perth site on a temporary basis and that when so assigned will continue to be part of the AAHP:O bargaining unit:

(2) The parties agree that the Speech Language Pathologist employed at the Perth site when assigned to work at the Smiths Falls site on a part time basis will continue to be part of the OPSEU paramedical bargaining unit:

(3) The parties agree that the Occupational Therapist employed at the Perth site is part of the OPSEU paramedical bargaining unit:

(4) The parties agree that the description of the AAHP:O bargaining unit will be amended to provide that it applies to employees working in or out of Smiths Falls and that the description of the OPSEU paramedical bargaining unit will be amended to provide that it applies to employees working in or out of Perth:

(5) AAHP:O hereby seeks leave of the Board to withdraw its application in Board File #0452-96-R.

DATED AT TORONTO THIS 8TH DAY OF JULY. 1996

"Illegible Signature" "Illegible Signature"

AAHP:O OPSEU

"Shirley Rogers" - H. R. Manager

Perth and Smiths Falls District Hospital

17. On July 16, OPSEU's job security officer, Mr. Roger Haley, wrote to the hospital outlining his understanding of the settlement as follows:

RE: Transfer of South Unit Site Staff to Perth

I find it regrettable that you either choose to ignore OPSEU's proposals or simply do not understand them when we spoke on June 19, 1996 in Perth concerning the movement of beds from the hospital's Smiths Falls site to Perth. And it is becoming increasingly frustrating to continuously waste the time and effort at the Labour Board for OPSEU to make its case clear.

Since your letter of July 10, 1996 to Mr. McNicol is far removed from our earlier discussions, let met try to explain it to you one more time.

On June 19, 1996 I suggested to you that a formal transfer agreement was not absolutely necessary. Collective agreements already exist which provide for the filling of vacancies at both sites. Again; simply put; if additional staff are required at Perth when the beds are transferred, post those vacancies in accordance with the OPSEU collective agreement. If vacancies still exist after that two week process then restrict the search of applicants to those who may be interested from the Smiths Falls unit.

OPSEU also proposed that any Smiths Falls employees who chose to transfer during this process would receive the salary level on the OPSEU salary grid closest to their former pay at Smiths Falls and also retain the recognition of service for the purposes of vacations, pensions and benefits. However seniority could not be recognized for the purposes of layoff, recall, promotions, etc.

The Memorandum of Agreement that you signed along with OPSEU and Allied Health on July 8. 1996 at the OLRB allows for the movement of three (3) occupations only between those bargaining units. It does not give the hospital the free will to move everyone in all bargaining units. It relates only to those three positions in question before the Board at the tune. I am hearing that some managers at the hospital incorrectly believe that this Agreement pertains to all operations. It is however somewhat ironic to see the hospital agree to this movement and retention of bargaining unit rights in this scenario while it has been rejected as initially proposed by OPSEU for the past two years.

I trust that the hospital will clearly understand OPSEU's position at this time; ... all vacancies must be posted within the provisions of the collective agreements. Any variations in that process without the agreement of all parties will be followed up accordingly.

[emphasis in original]

18. AAHP:O and the hospital both understand the settlement to mean that the scope of the paramedical bargaining units are amended to permit paramedical employees to work at either location while remaining covered by the terms and conditions of employment contained in the collective agreement (when there is one) for their original unit. The above letter from Mr. Haley was not withdrawn or clarified prior to the hearing. OPSEU's witnesses' testimony with respect to their view of the settlement was somewhat confusing and even contradictory at times. However, Mr. Haley did concede that his understanding of the agreement outlined in the above letter had been incorrect. OPSEU's counsel set out OPSEU's current position with respect to the settlement in a letter to AAHP:O's counsel as follows:

Re: Perth & Smith Falls District Hospital v. O.P.S.E.U., CUPE, AAHPO, ICTU. CUOE

Great War Memorial Hospital of Perth District, Smith Falls Community Hospital v. O.P.S.E.U., CUPE, Local 2119, Independent Canadian Transit Union and its Local 6 v. Non-Union Employees, Smith Falls Community Hospital, ONA, AAHPO

Board File No's 1774-96-R and 3824-94-R

Thank you for your letter of January 6, 1997.

The Ontario Public Service Employees Union's (OPSEU) position with respect to the July 8th, 1996 settlement is that this settlement deals with 3 positions of Speech Pathologist. Occupational Therapist and Physiotherapist and that OPSEU reserves the right to object to the Hospital's movement of other members in or out of the paramedical unit in Perth. However, OPSEU also acknowledges that if the Hospital does properly move persons in other occupations with the paramedical unit, bargaining rights for such persons will be governed by paragraph 4 of the July 8th agreement.

Mr. Hailey's correspondence of July 16, 1996, was in reply to Ms. Rogers letter of June 10, 1996, which appeared to indicate that she was relying on the agreement of July 8, 1996 to transfer nursing staff from the South Unit in Smith Falls to Perth. It is OPSEU's position that the July 8th, 1996 settlement dealt only with the paramedical unit and not the nursing unit.

I trust that this provides the requested clarification.

Laboratory Services

19. The two original hospitals each had separate laboratories. Smiths Falls operated its own lab and Perth contracted for the service. After the merger, the hospital purchased a laboratory programme. It became operational at both sites on April 1, 1996. In a memorandum of agreement dated March 22, 1996 the hospital and AAHP:O agreed that the hospital would recognize AAHP:O as the representative of the laboratory employees transferred from the lab contractor as a result of the "sale of a business". As a result AAHP:O represents lab employees at both hospitals but in different bargaining units. The hospital advised AAHP:O that it intended to transfer staff between sites and subsequently did so on eight occasions in the summer of 1996. In August, 1996 the hospital prepared a Master Rotation for the laboratory staff at both sites.

20. The rationalization study with respect to the two hospitals had been completed and released prior to the Board's October, 1995 decision. However, on April 1,2, and 3, 1996 the detailed re-engineering recommendations were released to staff in the Nursing, Housekeeping, Maintenance and Rehabilitation Services.

Housekeeping and Maintenance Services

21. The hospital's plan with respect to the Housekeeping and Maintenance Services, as set out in the re-engineering recommendations and Ms. Rogers' evidence, is to merge the housekeeping and maintenance/physical plant departments of both sites into a new department for the entire hospital called Environmental Support Services. The contract with VERSA services which had been providing management of the maintenance department at Perth was cancelled in May, 1996 and a manager for the combined service, Paul Simpson, was selected.

22. The stationary engineer 4th class position at the Perth site will be eliminated. New job classifications for this department will replace all of the the current housekeeping and maintenance positions. The other positions in the OPSEU. ICTU and CUPE bargaining units to be eliminated are housekeeping aide, heavy cleaner, skilled maintenance, maintenance porter, electrician, laundry foreman and seamstress. They will be replaced with the positions of environmental assistant I and II and environmental technician-electrical. Job descriptions for the new positions have been drafted. However, meetings with the unions with respect to the job descriptions were scheduled to take place during this hearing and were therefore cancelled. One of the documents submitted suggests that there will be some lay-offs in the CUPE unit as a result of this re-engineering plan combined with the closure of the South Unit. The evidence was not clear whether there would be lay-offs in any of the other bargaining units. When the detailed re-engineering of this department was announced in April, 1996 the hospital indicated it would be implemented in eighteen to twenty-four months. Ms. Rogers testified that the unit assistants, (see Nursing Re-engineering below), the environmental technicians 1 and 2 and the environmental technician-electrical were to be implemented by the end of March 1997.

23. The hospital has indicated its intention, both through Ms, Rogers' evidence and in the recommendations in the Rationalization Study, that the employees in Environmental Support Services are to provide the service to all three sites, The Rationalization Study gives an example of needing to use the environmental technicians as a team to periodically strip and wax floors at both sites.

24. The linen inventory control function will be transferred to the Material Management Department. One employee will work for three hours per day at each of the Perth site and the Smiths Falls site to perform the linen inventory control function. It is intended that the employee who has been performing the linen inventory control function continue to do so under the new environment. He is in the CUPE bargaining unit. Ms. Rogers testified that this position would arguably fall within the ICTU or the OPSEU bargaining unit at Perth.

The Day Hospital

25. The Day Hospital Service is offered at the Smiths Falls site, South Unit and is to be moved to Perth as part of the South Unit closure. It employs a non-bargaining unit coordinator and a full-time day hospital assistant who is in the AAHP:O unit. It receives other services from other departments including occupational therapy, physiotherapy, speech pathology and nutrition.

26. On May 13, 1996, AAHP:O filed a jurisdictional dispute application claiming that its work was being assigned to CUPE members. On the same date it also filed an application alleging a violation of the statutory freeze.

27. In October, 1996, the above applications were resolved on the basis that Madeline Forrest, the day hospital assistant, would be transferred with the Day Hospital to Perth and would remain in the AAHP:O bargaining unit. The parties also agreed that Vicki Craig, the part-time pharmacy technician, would be transferred to Perth but would remain in the AAHP:O bargaining unit. OPSEU was not given notice of either the applications or the settlement. Ms. Rogers testified that it was her view that this agreement was in keeping with the agreement reached on July 8, 1996 between the hospital, AAHP:O and OPSEU.

Rehabilitation Services

28. Currently both inpatient and outpatient physiotherapy, occupational therapy and speech language pathology services are offered at both sites. The hospital plans to locate the Rehabilitation Inpatient Unit, Rehabilitation Therapies and the Day Hospital Programme (as noted above) to Perth by the end of March 1997. Outpatient therapy services will continue to be offered at Smiths Falls. The hospital anticipates that these re-engineering changes will result in an increase of physiotherapy hours at Perth and a decrease at Smiths Falls. Physiotherapists working in Perth will continue to be in the AAHP:O bargaining unit. The hospital considers this to be consistent with the July 8, 1996 agreement.

The Nursing Department

29. The hospital is reorganizing the nursing department. One of the changes is to implement the position of "unit assistant" in each Patient Care Unit at each site. The unit assistant will perform housekeeping functions formerly performed by housekeeping aides and will assume the non-nursing functions currently carried out by registered nurses (RN's) and registered practical nurses (RPN's). This will result in a total of 29,049 hours being transferred from the housekeeping department to the nursing department. The hospital anticipates the necessity to transfer unit assistants between units and between sites to cover vacations, sick leave etc.

The Chronic Care Unit

30. On May 14, 1996 the hospital formally announced the steps it would be taking to close the Chronic Inpatient Unit at the Smiths Falls South Unit. Ten chronic care beds were to be transferred to Perth. Subsequently it was decided that seven more patients qualified for chronic care and were to be transferred to Perth as well. However, these further seven patients will be placed into existing medical/ surgical beds at Perth and transferred to chronic care beds as they become available. The staff assigned to those patients are in the OPSEU bargaining unit. The ten beds originally scheduled for transfer by the hospital will also be set up on the medical/surgical unit at Perth but will house only the Smiths Falls chronic care patients. The hospital is transferring the staff with these beds and therefore two full-time and eleven part-time RPN's were transferred with the beds on January 13, 1997. The hospital's intention to transfer the staff with the beds was communicated to the parties in its documents relating to the closure, through its committees and in its announcement on May 14. The hospital continues to recognize CUPE as the bargaining agent of the nurses who were transferred along with the chronic care beds to Perth. Ms. Rogers explained that the hospital transferred the staff with the beds to maintain the continuity of care of these chronic patients, some of whom may be patients of the hospital for a year or more, and because it was the work of the chronic care staff that was being transferred.

31. It was not originally the hospital's intention to assign housekeeping staff from the CUPE bargaining unit at Smiths Falls to Perth along with the chronic care beds. However CUPE filed five grievances with respect to that decision. Two grievances were allowed and a regular full-time CUPE housekeeping aide position will be transferred to the Perth site. According to CUPE's pleadings, the work of its heavy cleaner will be performed by an OPSEU member. No dietary service employees will be transferred with the chronic care beds so that work will be performed by someone outside the CUPE bargaining unit. CUPE therefore is proceeding with three grievances with respect to those positions.

32. The hospital's eventual plan is to redevelop the North Unit and to relocate the chronic care beds there. It has submitted plans to this effect to the Ministry of Health for approval but there is as yet no firm timetable and the hospital acknowledged it could take many years to complete.

33. It appears that the timing of this application was dictated by the hospital's decision to transfer the chronic care beds and staff in January, 1997 as well as by the implementation of the re-engineering recommendations in maintenance, housekeeping and rehabilitation services. The hospital anticipates that the implementation of all of those initiatives will require intermingling. The hospital was also motivated by its expectation that its budget would be cut a further million dollars in the next fiscal year.

Pharmacy Services

34. The hospital was unable to implement its re-engineering plans with respect to the pharmacy until a new pharmacy manager was hired in mid-October, 1996. The hospital is now consolidating the pharmacies but will continue to operate a pharmacy at both Perth and Smiths Falls. However, the Smiths Falls pharmacy will be a satellite and the stock kept there will be substantially reduced. The pharmacy at the Perth site was staffed at the time of the hearing by a full-time nurse manager and a part-time office clerk. The pharmacy at Smiths Falls was staffed by a 1'ull-time pharmacy technician, a part-time pharmacy technician and a casual relief technician. The full-time nurse manager position at Perth was to be eliminated on February 1, 1997 and the Perth site was to be staffed by two full-time-equivalent pharmacy technicians and the Smiths Falls site by one full-time pharmacy technician. The part-time pharmacy technician from Smiths Falls is to be transferred to Perth at the completion of this project,

35. The pharmacy technicians at the Smiths Falls site fall within the AAHP:O bargaining unit. The part-time clerical position at Perth was in the OPSEU clerical unit. In Ms, Rogers' opinion the pharmacy technician positions at Perth will fall within the OPSEU paramedical bargaining unit. However, the part-time pharmacy technician, Vicki Craig, who will be transferred from Smiths Falls to Perth will continue to be in the AAHP:O bargaining unit. This is in keeping with the settlement between AAHP:O and the hospital described at paragraph 27.

Dietary and Nutrition Services

36, The hospital plans to reorganize its dietary and nutrition services but is in the very early stages of that process. It has not yet decided whether to provide the service "in-house" or to contract it out, At present, dietary services are provided in-house at Smiths Falls by CUPE and AAHP:O members but they are contracted out in Perth, At the Perth site, the employees of the contracting agency are members of an OPSEU bargaining unit,

37. There are nine employees who were permitted to become part-time employees of both hospitals in 1994 and are therefore represented by both unions, The hospital agreed to this, according to Ms, Rogers, because it fully expected the parties to reach a transfer agreement and because it was consistent with its policy of optimizing the use of staff between sites. It appears that this was a continuation of a situation which arose when the hospital was two separate entities and some employees worked part-time or casual at both. When it became apparent that the parties would not be able to reach a transfer agreement, the hospital stopped the practice but it allowed the employees in this situation to continue to work and maintain their seniority in both bargaining units. Ms. Rogers testified that this has led to a situation in which both CUPE and OPSEU have filed grievances with respect to an employee who was disciplined. This situation has also led to confusion about the status of an employee who is eligible for early retirement in one bargaining unit but not the other. The CUPE president is also one of these anomalous employees and as a result she is paid for committee work she performs as CUPE president when she is scheduled at Smiths Falls but must take an unpaid leave of absence if meetings are held while she is scheduled at Perth.

38. The hospital put up a posting at Smiths Falls for a casual position located at Perth. However, employees were told they would have to give up their positions at Smiths Falls if they applied. CUPE filed a grievance with respect to this stance and relied on the hospital's past practice of allowing employees to be members of both bargaining units, That grievance was referred to arbitration and is presently in abeyance.

Negotiating History

39. The parties (with the exception of AAHP:O which had not yet been certified) attempted to negotiate a transfer agreement with respect to the hospital merger from April to October 1994. The hospital was proposing a total merger of "seniority" for all employees including the non-unionized group. OPSEU was proposing that the seniority of transferred employees from another bargaining unit be recognized after two years and that there be no seniority recognized for non-union employees. The parties were unable to reach an agreement based on either of these suggestions and in September, 1994 CUPE filed an application under section 64 (now section 69) of the Act seeking a representation vote, That application was withdrawn in January 1995 and the hospital filed the application that led to the Board's October, 1995 decision. There has been very little negotiating activity since that time. However, OPSEU proposed transfer agreements on a number of occasions which all of the other parties, except ICTU, rejected. There was very little actual negotiation between the parties and the other parties usually indicated their lack of interest in OPSEU's proposals by ignoring them.

40. In July, 1994 OPSEU proposed an agreement to the hospital. The agreement provided, among other things, that the hospital would recognize OPSEU as the bargaining agent of the employees at Perth and would recognize and comply with the "home" collective agreements of all bargaining unit employees. If any vacancies occur, employees from the other site who are scheduled to become redundant would be entitled to fill them after the job posting provisions of the collective agreement where the vacancy occurs had been exhausted. Employees thus transferred from the other site would not have their seniority recognized initially, but after two years their full seniority would be recognized. Any employee permanently transferred to the other site would be covered by the terms of that site's collective agreement except that he or she would still be entitled to any superior benefits from the original collective agreement. Integrated seniority lists would be created and would become effective twenty-four months after the date of the signing of the memorandum.

41. On January 27, 1995 OPSEU proposed an agreement to the hospital, CUPE and ICTU which contained much the same terms as the July, 1994 agreement except that it also specifically prohibited anyone from outside the bargaining unit from performing bargaining unit work and it no longer contained the provision for integrating the seniority list after two years. As a result, any employees transferred after the job posting provisions had been exhausted would have their full seniority recognized. The agreement also proposed that after the unionized employees had had an opportunity to be placed in the positions, non-union employees facing lay-off would also have the opportunity. However, seniority (but not service) would only start to accrue for them after being placed in the bargaining unit position.

42. On January 5, 1996, after the Board's October, 1995 decision, OPSEU proposed an agreement to the other unions (this time including AAHP:O). This agreement was essentially the same as the January, 1995 agreement. There was some evidence that CUPE's representative indicated to OPSEU that the agreement was acceptable in principle, but that it was ultimately rejected by the CUPE local.

43. Mr. William McNicol, OPSEU's Local President, advised the hospital president, Ms. Man-Icy, on one occasion that if the hospital could provide a definite date as to when the chronic care beds would return to Smiths Falls, OPSEU might be able to accept the CUPE members being transferred with the beds. Ms. Manley did not provide him with a date and the hospital still does not know when the renovations to the North Unit will occur.

44. On June 19, 1996, OPSEU's representative, Mr. Haley, met with Ms. Rogers to attempt to negotiate the January 1996 transfer agreement proposal. However the provision recognizing seniority accrued in the other bargaining unit had been removed as that provision had been rejected by the OPSEU membership. The hospital rejected the agreement. Mr. Haley then suggested verbally that no transfer agreement was necessary. He proposed instead that the hospital post the South Unit positions to be transferred to Perth in the OPSEU bargaining unit. He claimed that it was likely that after the OPSEU members who were interested applied there would still be part-time positions left for some of the laid off CUPE members, The CUPE members would have their service but not their seniority recognized for two years. Ms. Rogers discussed the proposal with the hospital's counsel and then sent Mr. McNicol a letter indicating the hospital would proceed with transferring the staff to Perth as it had planned. Mr. Haley responded with the letter found at paragraph 17 above.

45. OPSEU's witnesses testified that Ms. Rogers had indicated that she did not want to enter into OPSEU's proposed transfer agreements because it would prevent the hospital from returning to the Board to seek a representation vote. Ms. Rogers did not specifically remember such a conversation but essentially agreed that that was a factor the hospital considered,

Evidence of Intermingling

46. At the outset of the hearing, the Board indicated that as the situation continued to evolve it would permit the parties to introduce evidence of "intermingling" which occurred up to the first day of hearing. The Board also advised that it would permit the parties to introduce evidence relating to their future plans with respect to changes at the hospital.

47. Ms, Rogers testified that prior to the first Board decision the hospital tried not to "intermingle" employees because it was bargaining with the unions and because it had already received a grievance, It expected the Board's decision to resolve the situation quickly. However, after receiving and reviewing the Board's October 13, 1995 decision, it was the hospital's view that it was entitled to move employees between sites for legitimate business reasons which Ms, Rogers testified included; vacation relief, avoidance of paying over-time, sick leave relief, covering any kinds of leaves of absences and transfers of programmes and services. As a result, the applicant alleges that the following examples of "intermingling" which affect the responding parties have occurred since the Board's decision in October 1995;

2. Leslie Morgan. laboratory technologist (AAHP:O/Smiths Falls) worked at Perth (AAHP:O/ Perth) on July 16, 1996.

3. Krista Simmons, laboratory technologist (AAHP:O/Smiths Falls) worked at Perth (AAHP:O/Perth).

4. Pam Burns, laboratory technologist (AAHP:O/Perth) worked at Smiths Falls (AAHP:O/ Smiths Falls) on September 23 and 27, 1996.

5. Kim Kehoe, laboratory technologist (AAHP:O/Perth) worked at the Smith Falls site (AAHP:O/Smith Falls) on September 26, 1996.

6. Candace Plotz, pharmacy assistant (AAHP:O/ Smith Falls-check) worked at Perth (AAHP:O/Perth or OPSEU/Perth) on Sept. 23, 24 and 25. 1996.

7. Esther Barker, speech pathologist (AAHP:O/Smiths Falls) replaced a speech pathologist in the OPSEU paramedical bargaining unit at the Perth site on July 29, 31, August 1, 5, 6, 12, 14, 15, 1996.

8. Cindy Neville, ultrasound technologist (OPSEU/Paramedical) worked at Smiths Falls on September 17, 1996 for four hours.

9. Joanne Gilbert, physiotherapist (AAHP:O/Smiths Falls) worked regularly at the Perth site.

10. Marjorie Billings, patient registration clerk. (OPSEU/clerical) worked at Smiths Falls site (non-union) on October 7 and 14, and November 12 and 17, 1996.

11. Jean Larocque, RPN (CUPE) worked at the Perth site (OPSEU/service) on September IS. 1996. Mr. McNicol testified that his wife called and advised she had arranged to cover the shift for the scheduled RPN who was not available but she was told that someone else had already been assigned.

II) Sharon Newans, RPN (CUPE) worked at Perth site (OPSEU/service) on September 24 and 28, November 10, 16, 24 1996.

12. Greg Cushing. RPN (OPSEU/service) worked at Smiths Falls (CUPE) on June 28,. 1996.

13. Constance Cross, seamstress (CUPE) worked at Smiths Falls on February 9 and June 11, 1996.

14. Tom Okaguchi, laundry foreman (CUPE) worked at Perth on Jan. 14, 15, 16, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, February 3, 4, 11, 12, 13, 17, 18, 24, 25, 28, 29, March 28, August 26, 27, Sept. 26 and Nov. 5, 7, 9, 11, 13, 15, 18, 20, 21, 22, 25, 26 and 29, 1996. OPSEU denies that Mr. Okaguchi was performing work of its bargaining unit on the specified dates.

15. Gary Lackey, maintenance 11 (ICTU/Perth) worked at the Smith Falls site (CUPE) on September 11, 13, 18, 19 and October 8, 1996.

16. Mike Girdwood, CSR (OPSEU/Perth) worked at Smiths Falls on March 21. 22 and 23, 1996. CUPE filed a grievance which was withdrawn after investigation disclosed that work Mr. Girdwood was performing was not CUPE bargaining unit work. Mr. Girdwood had been a CUPE member who applied for the posted CSR job at Perth. When he took the job he had to give up his CUPE seniority.

17. Sheila Paul, dictatypist (OPSEU/clerical) worked at Smiths Falls (non-union) on October 22 and 24.

18. Judy Saunders, switchboard operator (OPSEU/clerical) worked at Smiths Falls (nonunion) on October 27, 1996.

19. Sue McLellan, stores clerk (OPSEU/clerical) worked at Smiths Falls (non-union) on October 8, 9, 10, 15 and 16, 1996. She also did computer training at Smiths Falls on April 30, May 8, 14, 15, 17, 22.

20. Nancy Roberts, stores clerk (Smith Falls/ non-union) worked at the Perth site (OPSEU) on January 16, 31, February 14, 28, April 24, May 29 and July 3, 1996.

21. Greg Patterson, lead hand/heavy cleaner, (CUPE) worked at the Perth site on July 18, 20, 21, Dec. 1, 11, 1995 and Jan. 9, 23, 31, July 23, August 22, September 12, 1996 and October 4, 1996. OPSEU denies that Mr. Patterson was doing the work of its bargaining unit on the specified dates.

22. Diana Shackleton and Verna Evoy, housekeeping aides, (CUPE) both worked at the Perth site on December 6, 1995 for two hours. OPSEU denies that the individuals were performing the work of its bargaining unit on December 6, 1995.

23. Debbie Hart, housekeeping aide (CUPE) commenced training for a CSR (Central Supply and Receiving) Aide at the Perth site on October 8, 1996. She will assume a CSR-OR position at Smiths Falls upon completion of her training.

24. Erma Findlay. CSR aide (OPSEU/service) worked at Smiths Falls (CUPE) on November 5, 1996.

25. Fred Kelly is a licensed electrician in the CUPE bargaining unit. He is the only licensed electrician employed by the hospital and has therefore worked on numerous occasions at the Perth site. ICTU does not have a licensed electrician in its bargaining unit and does not claim that the work being performed by Mr. Kelly at Perth is work of its bargaining unit. OPSEU has also not made such a claim.

26. Cecil Ferguson, truck driver (CUPE) performs truck driving services for all three sites and distributes mail, CSR materials and laundry between them.

27. There has been an increase in the need for physiotherapy services at Perth attributable to the fact that 75% of surgery and all orthopaedic surgery is performed there and rehabilitation services have been relocated there. As a result physiotherapists from Smith Falls (AAHP:O) have been working increased hours at Perth.

GRIEVANCES

48. At least nineteen grievances have been filed since July 1995, as a result of perceived problems with the assignment of work between bargaining units. Many of the grievances have been resolved but some are outstanding and are in abeyance pending the outcome of this application. Only one of the nineteen grievances involves a complaint that a paramedical employee is doing the work of someone in another bargaining unit. OPSEU has filed a grievance with respect to the pharmacy technician from AAHP:O working at Perth. There is no pharmacy technician in the existing OPSEU agreements but the pharmacy clerk was in the OPSEU clerical unit. There are no paramedical collective agreements so it has not been possible to file any other such grievances. The fact that no paramedical grievances have been filed may also reflect the parties agreement of July 8, 1996,

49. On each of February 21, 22 and 23 1996, CUPE filed a grievance complaining about OPSEU members performing work of the CUPE bargaining unit. These grievances were withdrawn.

50. On June 21 and June 22, 1996 CUPE filed three policy grievances with respect to the assignment of work. The grievances were subsequently withdrawn.

51. On July 2, 1996 CUPE filed one policy and two individual grievances when Greg Cushing RPN (OPSEU) worked at the Smiths Falls site. The grievances have been referred to arbitration.

52. On July 24, 1996 CUPE filed one policy grievance and two individual grievances objecting to the lay-off of staff and the "contracting out" of dietary services as a result of the South Unit closure and movement of beds to Perth.

53. On August 20 and 21, 1996 CUPE filed four individual grievances and one policy grievance alleging that OPSEU would be doing work of its bargaining unit in relation to the transfer of beds to Perth. Two grievances were settled and withdrawn.

54. On September 12, 1996 Mr. McNicol filed a policy grievance with respect to Ms. Jean LaRocque RPN (CUPE) working at the Perth site on September 15, 1997.

55. On September 16, 1996 CUPE filed a policy grievance complaining that a member of ICTU was performing the work of its bargaining unit.

56. On September 26, 1996 OPSEU filed a grievance with respect to Candace Plotz working as a pharmacy technician at Perth. The hospital believes this situation is covered by the July 8, agreement. OPSEU disagrees.

Other Labour Relations Difficulties

57. Ms. Rogers testified about other labour relations problems that the hospital was experiencing as a result of the present bargaining unit structure. She explained that the present situation causes problems with recruitment. Currently, postings for vacancies are posted at all three sites. Any employee may apply but preference must be given to members of the bargaining unit whose collective agreement it is posted under. Therefore, an RPN position in the OPSEU bargaining unit would go to an RPN in that bargaining unit instead of to an RPN in the CUPE unit who has more service/experience but no seniority in the OPSEU bargaining unit. If the applicant from the other site is appointed to the job she or he must give up all of his or her seniority to take it. Ms. Rogers testified that this is a disincentive to employees to transfer, and from a recruitment perspective did not allow the hospital to obtain the most qualified candidates for the position. Ms. Rogers testified that the present structure caused labour relations problems because the most junior employee is not necessarily the one laid off as a result of the separate bargaining structure. She noted that with the closure of the South Unit 'junior" RPN's at Perth have retained their position and more "senior" RPN's at Smiths Falls have been displaced or have bumped into lower classifications such as housekeeping or dietary. Ms. Rogers indicated that this situation concerned the hospital as it was losing the employees with the most experience and that is not the most optimal use of resources.

58. The hospital is also concerned that the present structures result in inflexible staffing. The hospital intends to transfer staff between sites for legitimate business purposes but in the present situation every occurrence could lead to a grievance alleging a member of the other bargaining unit is performing the work or a failure to post the position. If the hospital is restricted from transferring and intermingling staff it leads to costs for the hospital.

59. Ms. Rogers also testified that it was difficult to develop a new "culture" reflective of the now merged hospital when the bargaining units remain site specific. Staff will not get to know each other unless they are working side by side.

60. Ms. Rogers also perceives it to be a problem that on all of the hospital's multi-party committees there are two unions representing the same classifications of employees with potentially conflicting interests.

The Nature of the Evidence

61. The hospital called one witness, CUPE called two and OPSEU called two. Many documents were also tendered, including the studies and plans supporting the restructuring and re-engineering of the hospital and numerous c-mails sent to the hospital's witness, Ms. Rogers, from the managers advising of transfers of employees from one site or bargaining unit or the other and the reason for those transfers. The hospital also submitted notes written by the electrician, some shift schedules and some travel expense forms.

Submissions of the Parties

62. At the outset of its submissions the applicant suggested five issues upon which the Board would have to make determinations:

1. Whether intermingling within the meaning of section 69(6) of the Labour Relations Act had occurred.

2. If such intermingling has occurred, ought the Board to exercise its discretion, in particular under section 69(6)(b)?

3. What are the appropriate bargaining units'?

4. Should the Board order a representation vote to determine who will represent the employees in the bargaining units'?

5. What weight ought the Board to give to certain documents that were the subject of objections?

63. The hospital argues that the re-engineering subsequent to the merger is close to completion. Any aspects that have not been completed are certain enough for the Board to rely upon. It claims that intermingling within the meaning of the Act has now definitely occurred and it refers to concrete examples, as well as to specific re-engineering initiatives which it claims require the movement of staff between sites. It asserts that it is necessary for it to have complete flexibility with respect to intermingling employees in order to meet the mandate of the hospital reorganization.

64. The hospital also argues that the Board should exercise the discretion set out in 69 (6)(a) to (d) because of the labour relations difficulties raised by the current bargaining unit structure. The hospital claims that the bargaining structure prevents it from recruiting the most qualified (which it equates with most long-term) employee, for a position. Furthermore, when lay-offs occur 'junior" employees are retained while more senior ones lose their jobs. That leads to higher severance costs and the result that the most qualified employees do not remain employed. The hospital also cited the number of grievances that have been filed as a result of the current bargaining unit structures. The hospital asserts that the evidence demonstrates that the unions have "dug in their heels" and will not allow employees from other bargaining units to do "their work". The hospital also pointed to the number of applications which have been filed with the Board by various parties. The hospital also cites cost issues inherent in being unable to move employees from one site to another, for example, having to pay overtime to use an employee in a specific bargaining unit. In addition, the hospital claims that the division between unions is detrimental to developing a corporate identity. The hospital also referred to the problem of the employees with dual union membership. It claims that the parties have demonstrated an inability to negotiate a workable solution.

65. The hospital submits that the Board ought to combine the bargaining units into two bargaining units, a paramedical unit and a service/clerical unit, both of which would cover both locations. It argues further that the positions in dispute between AAHP:O and OPSEU belong in the paramedical bargaining unit. The hospital asserts that a representation vote should be held pursuant to section 69(8) of the Act in the paramedical bargaining unit between AAHP:O and OPSEU and in the service! maintenance/clerical unit between OPSEU, CUPE, ICTU and that there should also be a non-union option to reflect the interests of the non-unionized employees at the Smiths Falls location.

66. The hospital urged the Board to give full weight to the documentary evidence tendered in support of its claim that intermingling had occurred. The hospital referred to its one witness's role in collecting the disputed e-mails in support of their reliability. It claimed that the documents were generated in the course of business and were therefore acceptable exceptions to the hearsay rule. It also pointed out that OPSEU and ICTU had had notice of the facts of the allegations of intermingling through these documents and had called no evidence to challenge it. The hospital indicated that it was also relying upon time-sheets, travel payment requests, and schedules to prove that individuals worked at one site or the other. It pointed out that the movement of staff outlined in the documents was all in keeping with the re-engineering documents which were reliable. The hospital asserted that if it called every manager to testify as OPSEU and ICTU claim it is required to do, the hearing would not have been completed for a very long time. The hospital noted that even with the limited number of witnesses called the hearing lasted for twenty-two days. The hospital also referred to the Board's ability under the Statutory Powers Procedures Act to admit hearsay evidence. On this issue the hospital relied upon the following decisions: Setak Computer Services v. Burroughs Business Machines Ltd. et. al. 1977 CanLII 1184 (ON HCJ), 15 O.R. (2d) 750 and R. v. Smith, 1992 CanLII 79 (SCC), 94 D.L.R. (4th) 590.

67. The hospital claims that the facts of this case are somewhat different from many of the others that the Board has considered in that here, two corporations have ceased to exist and in their dissolution have created a new company. In these circumstances a very broad interpretation of intermingling is warranted. The intention of the section has been met in that employees are working side by side in a business that has become integrated who would not otherwise have been working side by side. The hospital referred the Board to the following decisions: Caressant Care Nursing Home of Canada Limited, [1984] OLRB Rep. Aug. 1060; Royal Ottawa Health Care Group, [1993] OLRB Rep. July 664. The hospital also referred to the decisions included in CUPE's Book of Authorities (infra at paragraph 83).

68. Mr. Burns submitted on behalf of the non-unionized employees that they should be excluded from the bargaining unit and the vote. He argued that they should not be subjected to mandatory collective bargaining. He was concerned that the non-unionized employees would have to join a union, would have no seniority, and would be subject to bumping.

69. AAHP:O agreed with the hospital that the Board can rely upon the documentary evidence submitted in support of the hospital's allegations of intermingling because they are business records and therefore an exception to the rule against hearsay. On this issue AAHP:O referred the Board to Reimer Overhead Doors Ltd., [1984] OLRB Rep. Oct. 1493.

70. AAHP:O articulated the other issues the Board has to determine as follows:

71. What are the Board's powers under section 69 of the Act?

72. Is there intermingling to the extent that a vote should be ordered?

73. In spite of a finding of intermingling, do the geographic scope clauses with respect to the paramedical units constitute a bar for relief?

74. Does the situation justify a vote under section 69(8) relative to the constituencies on the ballot?

75. If a vote is ordered, what is the bargaining unit and what is the voting constituency?

76. If a vote is ordered what is the date of the list?

77. AAHP:O argues that there is a conflict between the OPSEU and AAHP:O bargaining units which falls within section 69(4)(c) and (d) of the Act. The conflict arises because both unions represent paramedical employees at one location of the employer. It notes that while it may be arguable that the geographic limitations in the scope clauses provide a complete answer, the many proceedings that have taken place between the parties indicate that it is not. In the alternative, AAHP:O argues that the facts fall within the definition of intermingling found at section 69(6) of the Act. AAHP:O asserts that the three paramedical bargaining units (including the lab at Perth) should be combined into one bargaining unit and a vote held between it and OPSEU.

78. AAHP:O argues that the two positions which have been identified as falling within both its bargaining unit and OPSEU's service unit should be included in its unit because they share a community of interest with the other paramedical positions.

79. AAHP:O urges the Board to find that sufficient intermingling has occurred for the Board to order a vote. It argues that intermingling has occurred in two ways: through employee transfers and through the integration of two businesses or organizations with the result that employees are working side by side.

80. It was argued that the intermingling has given rise to significant labour relations problems which AAHP:O places into two categories; issues that affect the administration and management of the hospital and difficulties that affect both unions' members. A vote, according to AAHP:O would provide the best resolution to these difficulties. It anticipates an escalation of problems if a vote is not held.

81. AAHP:O addressed the jurisprudence found in some of the Board's successorship cases (specifically Silverwood Dairies, [1980] OLRB Rep. Oct. 1526) which suggests that there is no intermingling if, as a result of the geographic scope of the bargaining units neither union could ever represent individuals in the other location. However, AAHP:O notes that in this case both unions can claim "accretions" to their bargaining units when paramedical employees are moved from one location to another and refers to the Board's decision in The Municipality of Metropolitan Toronto, [1992] OLRB Rep. March 3 15 which found that the "accretion" analyses did not add anything to the question of whether employees have been intermingled. AAHP:O also notes that the July 8, 1996 agreement amends the scope clauses in the paramedical units and does accord representation rights to both locations. In any case, relying upon discrete bargaining rights will not resolve the ongoing problems. It was also suggested that the Silverswood Dairies (supra) line of cases were distinguishable in that in those cases the employer had not attempted to integrate the two workplaces completely. These cases are not useful where the employer has integrated the business and is transferring between sites. The Board should craft a response which recognizes the labour relations reality.

82. AAHP:O argued that the situation justifies a vote under section 69(8) because there has been intermingling, there are significant labour relations difficulties and attempts to settle have not resolved the problems, It would not be appropriate to simply appoint a bargaining agent as the two unions both represent a significant percentage of the employees.

83. AAHP:O relies upon the following decisions of the Board: Caressant Care (supra); Bermay Corporation Limited, [1979] OLRB Rep. July 608; Select Commercial Laundries, [1991] OLRB Rep. May 691; Emrick Plastics Inc., [1982] OLRB Rep. June 861, as well as a number of decisions in the CUPE Book of Authorities (infra at paragraph 83),

84. CUFF adopts the majority of AAHP:O's submissions and elaborates on the argument with respect to the remedial nature of the Board's discretion in these cases. In these circumstances, it claims, a restructuring of bargaining units and a representation vote will resolve the issues of undue fragmentation and will promote industrial peace. CUPE also points out that in this case, unlike most of the others the Board has dealt with, there has been full integration of two businesses and extensive intermingling has occurred as a result.

79, CUPE outlines the evidence of intermingling that had been presented that did not include the contested c-mails,

80. CUPE also argues that the Silverwood Dairies, (supra) decision is distinguishable from the facts before the Board and notes that it was in an industrial context at a very different point in time. The facts before this Board should be understood in the context of the ongoing massive restructuring of hospitals.

81. CUPE also argues that the members of its bargaining unit have the right to perform work at Perth that was formerly performed at Smiths Falls because its collective agreement contains a "no contracting out" clause as well as a "work of the bargaining unit clause". It notes as well that the hospital's corporate address is actually at Smiths Falls so it arguably has representation rights for the entire hospital. It also claims that, in any case, the Board has the discretion under section 69(4) and (6) to amend the recognition clause in the collective agreement including the geographic scope.

82. CUPE then highlighted the labour relations difficulties caused by the current situation as experienced by its members. It advocates that the bargaining units be restructured into an "all employee" service/office/clerical unit which includes the non-union employees.

83. CUPE referred the Board to the following decisions:

Association of Allied Health Professionals v. Stratford General Hospital [1976] OLRB Rep. September 459

The Canadian Textile and Chemical Union v. Union Felt Products 11992] OLRB Rep. July 871

The Municipality of Metropolitan Toronto s: Ontario Nurses 'Association [1992] OLRB Rep. March 315

The Toronto Hospital v. The Ontario Nurses' Association [1991] OLRB Rep. September 1098

Ontario Public Service Employees Union v. The Brandford General Hospital [1994] OLRB Rep. August 1103

Ontario Nurses 'Association v. Kitchener - Waterloo Hospital [1991] OLRB Rep. October 1130

Ensign Security Services Inc. v. United Steelworkers of America [1994] OLRB Rep. October 1310

Teamsters, Local Union No. 647 v. Silverwood Dairies [1980] OLRB Rep. October 1526

Ontario Public Service Employees v. St. Mary's of the Lake Hospital [1995] OLRB Rep. October 1303

Canadian Union of Public Employees (Local 139) v. North Bay General Hospital [1995] OLRB Rep. November [1401]

84. ICTU directs its submissions primarily to the issue of the admissibility and weight to be given to the evidence of intermingling which was submitted. It argues that the documentary evidence relied upon by the hospital, particularly the e-mails, was hearsay and often "double hearsay" and should therefore be given no weight. It denies that the e-mails fall into the category of "business records" which would be an exception to the rule against the admission of hearsay. It also argues that the documents are not being used to prove specific facts of intermingling but to show the reason or the "rationale" for the various transfers of staff. Those explanations are the very issues upon which the parties opposing the application should be entitled to cross-examine. ICTU offers examples of the kinds of questions it would like to put in cross-examination with respect to one of the e-mails referring to Fred Kelly the electrician. It would like to ask the following questions about a day upon which he fixed a generator: Who sent him to fix it? Why was that day chosen'? Was it that pressing'? Did Kelly do the work? Did whoever sent Kelly have some alternative motive to "stack the deck"'? Were there legitimate business reasons (for sending him the fix the generator)'? ICTU argues that the evidence in this area has to be cogent as it is the central issue the Board has to decide. As the evidence is hearsay it is not cogent, It submits that faced with evidence that was merely hearsay it had no obligation to lead any contradictory evidence.

85. ICTU also objects that the e-mails were solicited by the hospital's only witness. Shirley Rogers, for the purposes of this litigation and that the documents themselves betray signs that the authors were conscious of trying to bolster the hospital's case. ICTU refers the Board to section 35 of the Evidence Act, 1993 as amended. It argues that the documents would not fall within that section. ICTU urges the Board to adopt the "best evidence rule" and that in this case the "best evidence" would be that of the managers who wrote the e-mails, It refers the Board to The Law of Evidence in Canada (Sopinka, J,, Lederman, S., Bryant A., Butterworths) and Adderly. Bremner [1968] 10. R. 621.

86. ICTU also argues that the application is premature in that there is no evidence that the hospital tried to negotiate with it with respect to its labour relations problems. It submits that intermingling has not, in any case, been demonstrated.

87. ICTU declined to take any position on what the bargaining unit structure should be if the Board does find the conditions of section 69 had been met. ICTU also declined to take any position as to whether it should be included on the ballot in the event that a vote was held.

88. OPSEU submits that the issue for the Board to decide is whether there has been intermingling under the Act as a result of the merger. If the Board finds that intermingling has occurred, does the situation warrant the Board's interference? OPSEU argues that section 69(8) and (9) are to be used when the existing bargaining units cannot be preserved because the sale has created operational problems for the employer. In this case there was no intermingling within the meaning of the Act. Although there has been an amalgamation it is still possible to identify two operations in Smiths Falls and Perth. OPSEU challenges both the evidence of intermingling submitted by the hospital as well as its claims to be experiencing operational problems. A vote would not be appropriate in these circumstances because the employees have already chosen the bargaining agents that they want to represent them. Even if the Board finds that intermingling has occurred it was nominal and does not warrant intervention. In any case, there is no conflict in bargaining rights,

89. OPSEU adopts ICTU's submissions with respect to the hearsay nature of the intermingling evidence. OPSEU focuses on the fact that Ms, Rogers had no personal knowledge as to whether bargaining unit members had been contacted before employees from outside the bargaining unit were assigned to do the work. She also had no personal knowledge of the "legitimate business reasons" used to justify the intermingling. OPSEU denies that this evidence falls within any exception to the hearsay rule. It notes that the c-mails clearly came from interested parties and that the hospital should have called the managers as witnesses so that they could be subject to cross-examination. It argues that the employer's rationale for the various transfers of staff is not within OPSEU's knowledge so it cannot be expected to lead contradictory evidence. It wants to be able to cross-examine the managers on what work the employees were doing; whether anyone in the bargaining unit was available to do it and whether it really had to be performed on a particular day.

90. OPSEU also argues that the intermingling that has been demonstrated is not sufficient to warrant the Board's intervention in the form of a representation vote. Furthermore, most of the significant organizational changes had occurred prior to the Board's October 1995 decision and the Board had not found at that time that intervention was warranted. OPSEU asserts further that the hospital did not have firm dates for future re-engineering changes and that any decision based on such proposed changes would be premature. OPSEU submits that the hospital is committed to retaining two active treatment sites so, presumably, labour relations difficulties between unions are not necessary. However, OPSEU accuses the hospital of actively attempting to create the appearance of labour relations problems since 1995. It alleges that the hospital's decision to move the CUPE staff with the chronic care beds was in flagrant disregard of OPSEU's collective agreement and and was a deliberate attempt to create intermingling. According to OPSEU, if the hospital had accepted its proposal to post the jobs in the OPSEU bargaining unit it could have avoided operational difficulties, It also refers to other examples of what it considers to be the hospital's attempt to create intermingling, such as the transfer of OPSEU bargaining unit employees to do work normally done by non-union employees at Smiths Falls since no one could grieve such a transfer, and the decision to transfer a trained dictatypist to do work at Smiths Falls and replace her at Perth rather than to train a casual employee as a dictatypist at Smiths Falls.

91. OPSEU also reviews the history of its attempt to negotiate a transfer agreement. It submits that it is not appropriate for the Board to intervene as the hospital refused to negotiate a transfer agreement because it was determined to have the Board order a representation vote. OPSEU defends its proposals with respect to lay-offs and seniority on the basis that its members had less seniority than CUPE members. It argues as well that the July 8, 1996 agreement proves that it is possible to reach agreements that deal with the hospital's operational needs without combining the bargaining units and ordering a vote. Any disagreement with respect to the interpretation of that agreement can be submitted to an arbitrator.

92. OPSEU also argues that the transfer of staff that occurred was not intermingling within the meaning of the Labour Relations Act because the geographic scope of the bargaining units does not overlap. OPSEU relies upon a number of decisions of the Board which it claims support that principle, specifically Silverwood Dairies, (supra); Chateau Gardens (Queens) Inc., [1979] OLRB Rep. Apr. 289; Sunnylea Foods Limited, [1981] OLRB Rep. Nov. 1640 and New Dominion Stores Inc., [1986] OLRB Rep. Apr. 5 19. Since there is no overlap in the geographic scope, any employees who are transferred to the other site accrue to the bargaining unit represented by the union at that site. This, according to OPSEU is not intermingling for the purposes of the Act. OPSEU denies that the amendment contained in the July 8, 1996 agreement gave either paramedical union any representation rights at the other location.

93. Finally, OPSEU denies that there are ongoing operational difficulties or "cultural barriers" as a result of intermingling as alleged by the hospital. It notes that the one CUPE RPN who testified did not find any difference when working at either site and had no concerns about working at Perth. It points out that there was no evidence that the present structure was actually causing any difficulties with any committees. OPSEU also notes that it has not complained about any training that occurred across bargaining units with the exception of the Plotz grievance which is really a complaint that a position was not posted in the OPSEU bargaining unit. It denies that the problem with employees who have membership in both bargaining units arises from the merger. OPSEU challenges the hospital's assumption that optimal patient care is provided by the most senior staff. OPSEU also points out that a representation vote will not necessarily solve the problem of seniority and there may still be a requirement for negotiation and agreement on that issue. It argues that the employees' right to be represented by the bargaining agent they have freely chosen should be given precedent over the minimal operational difficulties alleged or proved by the hospital. It claimed that this approach is consistent with the most recent amendments to the Labour Relations Act, 1995 which emphasize democracy. It reminds the Board that AAHP:O tried to displace OPSEU as the representative of employees in Perth in April, 1996 and was defeated. The employees have therefore recently expressed their views as to their preferred bargaining agent. Here, where the hospital is committed to retaining two active care facilities there is no reason not to give effect to the employees' wishes. When a business remains functionally separate the Board must recognize the existing bargaining rights. The employees can easily identify which bargaining unit they belong to as the geographic scope does not overlap. Furthermore, the unions have allowed the employer to use employees from other bargaining units when necessary. OPSEU also asserts that the vote will not deal with any seniority issues and as the Board has no jurisdiction with respect to seniority that will still have to be resolved after the vote. OPSEU claims that it will be much more difficult to deal with that issue after the vote.

94. OPSEU refers to the following cases:

United Brotherhood of Carpenters and Joiners of America, Local Union 1669 v. Reimer Overhead Doors Ltd. [1984] OLRB Rep. Oct. 1493

Canadian Paperworkers ' Union and its Local 36, 311 and 112 v. Somerville Belkin Industries Limited [1986] O.L.R.B. Rep. Sept. 1307

CAW-Canada v. Polytech Coatings Limited [1992] O.L.R.B. Rep. Mar. 362

Teamsters Local Union No. 647 v. Silvernood Dairies. [1980] O.L.R.B. Rep. Oct. 1526

Christian Labour Association of Canada v. Chateau Gardens (Queens) Inc., [1979] O.L.R.B. Rep. Apr. 289

United Food and Commercial Workers International Union v. Sonnylea Foods Limited, [1981] O.L.R.B. Rep. Nov. 1640

Loeb Inc. v. Teamsters. Chauffeurs, Warehousemen and Helpers Local Union No. 91, [1985] O.L.R.B. Rep. May 697

United Food and Commercial Workers International Union, Locals 175 and 633 v. New Dominion Stores Inc., [1986] O.L.R.B. Rep. Apr. 519

The Canadian Textile and Chemical Union v. Union Felt Products (Ontario) Ltd.. [1992] O.L.R.B. Rep. July 871

United Brotherhood of Carpenters and Joiners of America, Local Union No. 446 v. Pitts Engineering Construction. [1983] O.L.R.B. Rep. June 938

Division 1320, Amalgamated Transit Union v. City of Peterborough, [1979] O.L.R.B. Rep. Feb. 133

Teamsters Local Union No. 879 v. Hamilton Cargo Transit Limited, [1983] O.L.R.B. Rep. June 887

95. OPSEU adopts CUPE's submissions as to how the bargaining units should be comprised if the Board does order them to be amalgamated. It also agrees that the appropriate date for determining voter eligibility, in the event a vote is ordered, is the date of the application.

96. OPSEU submits that the "anomalous" positions found in both the OPSEU service and the AAHP:O paramedical unit, should remain in the service unit as they have been in the OPSEU bargaining unit for a number of years and therefore have a community of interest with that unit. It also notes that the paramedical units have no collective agreements.

97. The hospital replies to OPSEU's and ICTU's submissions with respect to the nature of the evidence of intermingling. It argues that it has demonstrated a prima facie case of intermingling and the issue with respect to whether or not it had legitimate business reasons for the transfer of employees only arises because OPSEU and ICTU have claimed that the hospital did not intermingle employees for bona fide reasons but for the sole purpose of proving intermingling to the Board. After a question from the Board, OPSEU agreed that its argument with respect to the documentary evidence applied to the "second part of the test", i.e. whether the hospital had bona fide reasons for intermingling. OPSEU agreed that it could not dispute that some intermingling had occurred. The hospital then pointed out that neither CUPE or ICTU have pleaded any particulars to support their claim that the transfer of employees was not bona fide. The hospital therefore responded to the allegation as best it could and provided the e-mails. However, the hospital argues the onus with respect to any challenge to the hospital's bona fide reasons for moving employees from site to site rests with the challengers, OPSEU and ICTU.

Decision

98. The relevant sections of the Act provide as follows:

99. (1) In this section,

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

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

(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 the person 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 the employer 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 the person 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 16 or 59, 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 16 or 59, 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 represents 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.

(6) Despite subsections (2) and (3). where a business was sold to 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.

(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 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) For the purposes of sections 7, 63. 65, 67 and 132, 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 10.

99. The facts of this case fall within section 69(6) above. The Board found in its October 1995 decision that a sale of a business had occurred and in its decision dated March 20, 1997 that intermingling had occurred for the purposes of the Act. On the basis of those determinations, the Board directed that the ten bargaining units be combined into two bargaining units and that a representation vote be held.

The Evidentiary Challenge: Has the Hospital Demonstrated that "Intermingling" Has Taken Place?

100. OPSEU and ICTU deny that the Board can find intermingling for the purposes of the Act on the facts of this case. Most of their arguments stem from the claim that the hospital has failed to prove that it has transferred employees from one bargaining unit or site to the other for bona fide reasons. The applicant introduced numerous e-mails from hospital department managers to the Manager of Human Resources, Ms. Rogers, detailing the reasons that employees were moved from one site to another into evidence. The majority of these e-mails were forwarded after the application and responses were filed and were submitted to Ms. Rogers at her request to meet OPSEU's and ICTU's allegations that the "intermingling" which had taken place was undertaken in bad faith. The Board permitted these e-mails to be introduced in the hearing through Ms. Rogers subject to objections by OPSEU and ICTU that they were hearsay. The Board ruled that the documents could be introduced through the Manager of Human Resources as the source of her information. It was appropriate for her to testify to her complete understanding of the facts supporting the hospital's application. However, to the extent that the documents are intended to "prove" the reasons for the movement of staff the Board agrees that they are hearsay. The hospital claims that the e-mails are business documents and therefore an exception to the rule against hearsay, but the Board finds that they have no greater status than if Ms. Rogers' repeated a verbal conversation she had with a manager.

101. Nevertheless, the absence of direct evidence for the reasons for each instance of intermingling is not fatal to the applicant's case. OPSEU and ICTU allege that the hospital has acted in bad faith but it is not sufficient to merely make such an allegation in defence of an application of this nature. Although OPSEU claimed in its response that the hospital had committed an unfair labour practice it did not file an application under section 96 of the Act. It cannot make such an allegation in a defence to an application under section 69 of the Act and then claim that the applicant has the obligation to prove the contrary. The hospital provided extensive particulars as to the reasons for the movement of staff, sufficient for OPSEU and ICTU to do any investigation necessary to determine the validity of the reasons. They had the onus of showing a prima facie case of bad faith in the transfer of employees and if they had, it would have been incumbent on the hospital to adduce evidence to justify its actions.

102. The only evidence submitted by OPSEU with respect to its allegation was the conversation in which Ms. Rogers indicated that the hospital was not interested in OPSEU's transfer agreement proposal as it would prevent the hospital from ever returning to the Board for a vote. That evidence does not amount to a prima facie case of bad faith as the hospital had no ongoing obligation to bargain a transfer agreement with OPSEU if it was of the view that such an agreement would not resolve its concerns. OPSEU and ICTU therefore have not demonstrated a prima facie case. The Board accepts that the "intermingling" took place and will not go behind the fact of its occurrence to search out improper motives.

103. The e-mails indicate that the managers knew that they were being solicited to support the application. However, there is no indication that the actual intermingling occurred for that reason. There is nothing about the intermingling that suggests illegitimacy, there is no pattern or anything suspicious about the circumstances in which the occurrences took place. Mr. McNicol testified that his wife had agreed with a colleague to work the shift that Ms. LaRocque was called in for. However, management was not originally apprised of that agreement, and when Mr. McNicol's wife did call to advise she could work she was informed that someone had been found. OPSEU then filed a grievance. If anything, this is an example of the problems the hospital faces with the present situation. It must exhaust every possible bargaining unit source to perform the work or risk facing a grievance. This is an expenditure of time and effort it should not have to make in a merged facility.

104. OPSEU and ICTU also argue that the hospital's case should fail because it did not produce the managers who had direct knowledge of exactly what work employees were performing. They claim that without this evidence the hospital has not shown that the employees performed work normally within the scope of another union's bargaining unit. This objection must also fail. OPSEU's and ICTU's bargaining rights cover all hospital employees at Perth except the lab and anyone excluded as managerial or confidential. CUPE and AAHP:O represent all employees at Smiths Falls except the clerical employees. The Board can infer from the breadth of the bargaining units and from the positions held by those doing the work that in most cases the work being done could be claimed by another union or that intermingling between union and non-union employees was occurring.

105. OPSEU and ICTU did not directly challenge the fact of the movement of employees. In argument OPSEU acknowledged that it could not dispute that some intermingling had occurred. In its response to the application OPSEU also acknowledges some intermingling has occurred as follows:

106. With respect to nursing, the Respondent OPSEU does represent RPN's. Commencing on September 11, 1996, the Applicant has on limited occasions used part-time or casual RPN's employed as [sic] the Smiths Falls site to work at the Perth site instead of calling in part-time or casual RPN's employed at the Perth site or posting a vacancy for casual RPN's at Perth. OPSEU has filed a grievance regarding these transfers (which is attached to Schedule A of the Application as Exhibit 80).

It also states at paragraph 18 of its response:

18. On or about May I. 1996, the Respondent began on occasion assigning members of the OPSEU bargaining units to the Smiths Falls site to work in non-union positions. When questioned by Mr. McNicol about this, Ms. Rogers stated that this was being done to try to show intermingling, that the people were being placed in non-union jobs so neither union could grieve and that this way the Respondent [sic] could "get one union and it wouldn't be OPSEU." Mr. McNicol again asked about the agreement and was told by the Respondent [sic] was not interested in an agreement, only a vote and was not interested in talking about a proposal Mr. McNicol had to avoid job loss at either site. At about the same time the Applicant began on a very occasional basis to assign OPSEU members to do temporary work of CUPE members in Smiths Falls and CUPE members to do temporary work of OPSEU members in Perth.

[Note: OPSEU did not pursue the claim that the hospital was attempting to insure that OPSEU would not represent the employees.]

106, Neither OPSEU nor ICTU called any evidence or made any argument to challenge the fact of the movement of employees and there is other evidence to support that it occurred. CUPE and AAHP:O agreed that the intermingling involving their members had occurred. Furthermore the grievances filed support that instances complained about in those documents took place. The Board therefore accepts that the transfer of staff outlined above occurred as alleged.

Is the Assignment of Employees That Has Taken Place Intermingling for the Purposes of the Act?

107. OPSEU and ICTU argued that the assignment of employees that has taken place is not intermingling for the purposes of the Act because the scope of the bargaining units do not overlap. In fact the scope of two of the OPSEU bargaining units could arguably extend to the Smiths Falls location but the Board accepts OPSEU's apparent assertion that it does not interpret its agreement that way. Nevertheless, the Board does consider the intermingling which has taken place to be intermingling for the purposes of the Act, The intent of section 69 of the Act is twofold. It provides trade unions with the right to continue to represent employees after the sale of a business. However, it also permits parties to apply to have significant changes made to bargaining structures and bargaining agents in the event the unions' rights to continue to represent employees conflict with the result that difficulties arise for the operation of the business, In other words, a business is not supposed to be significantly disadvantaged in its ability to function because two or more unions now represent its employees and a conflict arises.

108. The essence of OPSEU's argument is that if the hospital were to comply with its collective agreement as OPSEU interprets it, there would be no operational or labour relations difficulties. If anyone is to be moved to Perth, there would be a new position in the OPSEU bargaining unit. Therefore, rather than moving someone from Smiths Falls along with a service or a bed, the position should just be posted as an OPSEU position as required by its collective agreement. The position is an "accretion" to the OPSEU bargaining unit and would presumably be filled first by qualified or laid off OPSEU bargaining unit members, The same argument would apply to jobs moving to Smiths Falls if that were ever to occur, If someone is moved temporarily, it appears that OPSEU may not complain providing that the hospital has made every effort to find an OPSEU member to do the work first. However, it also appears that OPSEU believes that it does have the right to grieve in such a situation but is showing its willingness to accommodate the hospital's business requirements, On the other hand CUPE believes that its collective agreement protects its members if their positions are transferred to Perth. It claims that its agreement does not permit employees other than those in its bargaining unit from doing its work and that its work cannot be contracted out. Both unions have filed grievances with respect to the transfer of employees. The hospital is caught in the middle. Both unions could conceivably win their arbitrations and then it may be impossible to resolve the situation, At the moment, the hospital appears to recognize that both unions have legitimate claims and is generally proceeding on the basis that employees should move with their work. This is not an unreasonable position from the hospital's point of view. In the meantime, the hospital is also burdened by the extra work involved in trying to exhaust bargaining unit lists before assigning available employees to do the work or face a grievance. The Board agrees with OPSEU that it is probably not a coincidence that the hospital has had OPSEU members doing non-union work at Smiths Falls on numerous occasions since it can exercise that flexibility without facing any grievances.

109. There are, as yet, no collective agreements applying to the paramedical units so there can be no grievances with respect to that work except where OPSEU has alleged that an AAHP:O employee is doing the work of someone in its service unit. The parties have, however, reached an agreement which specifically contemplates the intermingling of employees. Under the July 8, 1996 agreement, employees doing the same work under different terms and conditions of employment will be working side by side. It appears that the purpose of the agreement was to permit precisely that kind of intermingling without OPSEU and AAHP:O disputing it. Unfortunately, the parties do not appear to have had the same understanding of the agreement at the time they signed it and OPSEU read it much more narrowly than AAHP:O and the hospital. Even now, after OPSEU has attempted to clarify its position, there is still significant room for dispute as to how the settlement would be interpreted. It is unclear what OPSEU means by the stipulation "properly move persons in other occupations" in the letter drafted by its counsel and it appears there is still room for further grievances and labour relations difficulties. For example, the parties may have very different views on whether the July 8, 1996 agreement applies to permanent transfers (see, for example, Madeline Forrest and Vicki Craig in paragraph 27 above). It is also not clear whether the agreement applies to someone from the AAHP:O unit being transferred to the OPSEU service unit. What is clear is that the hospital needs flexibility in moving its paramedical professionals from site to site, and the terms and conditions of employment of those employees ought not to change each time they are providing therapy to a patient at a different site.

110. The Board therefore finds that intermingling for the purposes of section 69(6) of the Act has occurred. Employees who are in one bargaining unit have been moved both temporarily and permanently to a location where another bargaining agent claims rights. Two or more different bargaining agents are claiming that certain work is the work of their bargaining units and numerous grievances have been filed as a result.

111. This area of the Board's jurisprudence is evolving to meet the current labour relations realities. Hospitals have recently been frequently transferring services or merging parts or all of their operations. This activity is only going to increase in the near future, A few years ago, no one would have predicted the extent that hospitals would be facing the labour relations fall-out which is the natural result of such restructuring. Nevertheless, section 69 provides the Board with some tools (although far from a complete kit) to assist the parties with these difficulties. Section 69 must be interpreted with that in mind. The Board is aware that the kinds of problems caused by restructuring in hospitals are compounded by the bargaining unit fragmentation which is traditional in that sector. It is not uncommon for a hospital's employees to be represented by four or even five unions. If it is merged with another hospital or service with a like number of bargaining agents, the operational problems may be staggering. In this case there are four unions and seven to ten bargaining units involved. That is a distinguishing feature of this case from the decisions relied upon by OPSEU and ICTU in which typically only two unions are involved.

112. This case is also distinguishable from the decisions relied upon by OPSEU and ICTU because the hospital is a merged entity which now straddles both geographic scopes with the result that employees regularly move back and forth. In Silverwood Dairies; Chateau Gardens (Queens) Inc. and Sunnylea Foods, the employers had all closed part of the business and moved operations to another location outside the geographic scope. In such circumstances, the Board has said that the union should not be better off as a result of a sale than if the company had just moved to a new location outside of the geographic scope. That is not the case here. In Union Felt, the one decision in which both plants remained operational and intermingling occurred, the Board did order a vote. The other cases relied upon by OPSEU and ICTU are those in which the Board found that insufficient intermingling occurred to warrant interference, The intermingling demonstrated in this case far exceeds the examples given in any of the other decisions,

113. OPSEU and ICTU claim that staff moved to Perth should be treated as an accretion to their bargaining units. This concept of "accretion" is not found in section 69(6) of the Act and the Board noted in Metropolitan Parking (supra) that it is not particularly helpful. (See Metropolitan Parking (supra), at paragraph 58.) In this case, employees are being moved back and forth between sites with regularity. They cannot be an "accretion" to the other bargaining unit for part of the time, i.e. the maintenance staff cannot be an accretion to one or the other bargaining unit depending on what floors they are stripping. If such were the case, the terms and conditions of employment of the employees would be constantly changing and they would all essentially be covered by two collective agreements. It appears that OPSEU and ICTU may be willing to forbear complaining about such temporary transfers, providing the hospital has a bona fide reason acceptable to the union and has exhausted the list of employees in the bargaining unit, However, the unions reserve their right to grieve these situations, and have done so. The effort the hospital must make to avoid such grievances is significant and inevitably occasions will arise when the unions are not satisfied with the hospital's efforts and will grieve. In any case, the employees are still left performing the same work beside someone with different terms and conditions of employment.

114. Furthermore, the hospital is of' the view that both unions have the right to claim certain work and that, f'or example, CUPE is entitled to claim work transferred from Smiths Falls to Perth. OPSEU's position means that the hospital would be precluded f'rom this interpretation of the collective agreement it entered with CUPE. If OPSEU is ultimately wrong that CUPE has no right to this work, the hospital is in an untenable position.

115. For all of the above reasons, the Board finds the Silverwood Dairies line of cases distinguishable from the facts of this case, These facts are much closer to those cases relied upon by CUPE and AAHP:O in which the Board has found intermingling and has ordered a vote. The problems posed by the intermingling is the same in those cases as in this and the same remedy is available here.

Does the Intermingling Which Has Taken Place Warrant Intervention From the Board?

116. Ms. Rogers testified that the present situation causes operational difficulties for the hospital. It cannot retain or recruit the most senior employees. If OPSEU's claim to all work performed at Perth prevails, the hospital cannot transfer employees along with the services they work in. This is particularly significant with the chronic care beds in which the patients have a long-term relationship with the staff. The hospital needs to be able to move staff around to fill vacancies and it needs to be able to assign employees, particularly its maintenance, physical plant and paramedical people to either location. If it does transfer employees, it may face grievances and future jurisdictional dispute applications. In any case, it has employees working side by side with different terms and conditions of employment. On the other hand, the Board is not convinced, given the lack of any evidence, that the present situation presents "cultural" barriers or impediments to employees understanding themselves to be working for an integrated enterprise. Furthermore, while the existence of two unions representing the same types of employees on the same committees could conceivably cause problems there is no evidence that it has done so.

117. OPSEU also argues that the Board should not intervene because the other parties, except ICTU, have been unwilling to negotiate a transfer agreement which would vitiate the necessity of any Board interference, However, the Board does not consider this a persuasive argument not to intervene in these circumstances.

118. The unattractiveness of OPSEU's proposals to the other parties (except ICTU) reflects the conflicting interests that underlie this application, OPSEU cannot agree to a merger of bargaining units and a representation vote even if it is prepared to risk its representation rights because its members have less seniority than CUPE's members and may therefore be more adversely affected by pending lay-offs. CUPE cannot agree to maintain the status quo even if its members' seniority would be recognized once they were appointed to positions at Perth (which is no longer the case) because they will not get many of the positions at Perth. As it has been apparent for some time that the South Unit will be downsizing and that any job growth will be at Perth, CUPE's members are adversely affected by a quid pro quo agreement. That is generally true for AAHP:O as well,

119. The hospital could take the position that any jobs at Perth are OPSEU's as OPSEU proposes and face the many grievances likely to follow. However, the hospital claims to be of the view that CUPE does have a legal right to the jobs that accompany work formerly performed at Smiths Falls. It also objects to OPSEU's proposals on the grounds that it is both unfair and bad for patient care to lay off its most senior employees because the jobs, particularly jobs that have been the jobs of CUPE members, have to go to less senior OPSEU members first. The hospital was opposed to OPSEU's written proposals as it believed it would prevent it from making further re-engineering changes because it prohibited lay-offs and reclassifications and it objected to the provision which provided for no seniority for non-unionized employees. Ms. Rogers also did agree that she did not want to sign the agreement proposed by OPSEU because it would prevent the hospital from filing an application such as this with the Board no matter what changes transpired in the future.

120. The hospital and the other unions have no statutory obligation to negotiate a transfer agreement, unlike their obligation to bargain in good faith for a collective agreement. Nevertheless, the Board generally encourages parties to try to resolve their differences through negotiation. In these circumstances, for the reasons outlined above, it is unlikely that there would be common ground between the parties. OPSEU could not agree to full seniority for CUPE members and CUPE could not agree to anything else. OPSEU complained that no one would really enter a give and take exchange with respect to its proposals. It claimed that even if the proposals on their face were unacceptable to the other parties they should have known that they could be subject to negotiation. However, when the central issue in the agreement is fundamentally unacceptable to other parties, it may well be that they will not embark on the process if they are not legally required to do so. This is particularly true if they see other options as being more to their advantage. While the parties should have been more forthcoming in their responses to OPSEU's proposals, the Board does not see their refusal to seriously enter negotiations for a transfer agreement in these circumstances as a good reason not to intervene in the face of the intermingling and resulting operational difficulties demonstrated by the applicant.

What kind of Intervention is Appropriate in the Circumstances?

121. The problems outlined above are principally caused by two factors. The first is that there is more than one bargaining unit with employees performing the same work and the second is that more than one trade union represents the different bargaining units. It was therefore appropriate for the Board to exercise its discretion under section 69(6)(d) to amend the bargaining units defined in the certificates and collective agreements and then to exercise its discretion under section 69(8) to order a representation vote to determine which trade unions will represent the employees.

122. Section 69(6)(b) of the Act permits the Board to determine whether the employees constitute one or more "appropriate" bargaining units. Section 69(6)(d) permits the Board to amend bargaining unit definitions as necessary. The determination as to how the new bargaining units should be described in this case was made on the basis that the bargaining units likely to be in conflict, that is, the units whose work overlapped, should be combined. The Board also took into account that it was OPSEU's position that its service and clerical units were already one bargaining unit and that all of the parties agreed that the full-time and part-time units should be combined. The Board therefore made the directions outlined in paragraphs 12 and 13 above.

123. The Board also had to determine whether the physiotherapy assistant and activity coordinator positions should be included in the clerical/service or the paramedical bargaining unit. For the reasons outlined in paragraph 6 of its March 20, 1997 decision the Board directed that the positions be included in the paramedical bargaining unit, OPSEU has requested that the Board reconsider that decision. It submits essentially that the fact that these two positions have been included in the OPSEU service unit for some time indicates that they have a community of interest with that bargaining unit. Furthermore, the president of the OPSEU local holds the position of Activity Coordinator. The Board has some sympathy with the problems caused by the fact that OPSEU's president holds one of the positions found to be in the other bargaining unit and the Board had some hopes that the other unions would find a way to accommodate that problem. However, the Board must determine the appropriate bargaining units for this restructured environment. On the limited evidence submitted by the parties, the positions appear to be paramedical rather than clerical or service, In any case OPSEU has not provided any argument as to why this decision should be reconsidered which was not included in its original submissions on this issue. The Board therefore declines to reconsider its decision.

124. The Board decided that all of the unions which represented the combined bargaining units should participate in the vote. ICTU had originally declined to take a position on whether it should be included on the ballot but has since requested that it not be. The Board had to decide whether the non-unionized employees would be included in the combined bargaining unit. The non-unionized employees had to be included in the combined service/clerical bargaining unit in order for the problems caused by intermingling the unionized and non-unionized employees to be resolved. The Board did not consider it appropriate to provide an option on the ballot for employees to choose not to be represented by any trade union because the vast majority of employees in the combined bargaining unit are unionized and in the circumstances it is not appropriate for this representation vote to be a decertification vote.

125. For all of the above reasons, the Board made the declarations and directions contained in paragraph 15 of its March 20, 1997 decision. For ease of reference the Board repeats those declarations and directions here:

1. A sale of a business within the meaning of the Act has occurred.

2. There has been an intermingling of employees within the meaning of section 69(6) of the Act.

3. Two representation votes will be conducted to determine which union shall represent the employees of the employer in the bargaining units set out in paragraphs 7 and 13 [of the March 20, 1997 decision] above.

4. All employees of the applicant on September 19, 1996, are eligible to vote. (The parties agreed that eligibility should be determined by the application date.)

5. Employees in the paramedical unit will be asked whether they wish to be represented by OPSEU or AAHP:O. Employees in the other unit will asked whether they wish to be represented by OPSEU, ICTU or CUPE. [ICTU subsequently withdrew from the ballot.]

126. Prior to and subsequent to the representation votes, the Board received correspondence from the parties with respect to issues related to those votes. Those issues will be outlined and dealt with in a subsequent decision of the Board relating to the conduct and outcome of the votes.