Canadian Health Care Workers v. The Women's Christian Association of London, 1998 CanLII 18305

[1998] OLRB REP. MAY/JUNE 496

3146-97-R; 3149-97-R; 3150-97-R; 3186-97-PS Canadian Health Care Workers ("CHCW"), Applicant v. The Women's Christian Association of London ("WCA"), Responding Party v. London & District Service Workers' Union, Local 220 ("SEIU" or "the incumbent union"), Intervener v. St. Joseph's Health Centre, Interested Party; London and District Service Workers' Union, Local 220 ("SEIU"), Applicant v. The Women's Christian Association of London "(WCA") and St. Joseph's Health Centre ("St. Joseph's"), Responding Parties, v. Canadian Health Care Workers ("CHCH") and Ontario Nurses' Association ("ONA"), Interveners

BEFORE: R. 0. MacDowell, Chair.

APPEARANCES: E. D. Coetzee for the "CHCW"; Stephen Krashinsky for the "SEIU"; Brian 0 'Byrne for the "WCA"; Frank Angeletti and Robert Landry for "St. Joseph's"; Gail Sax for "ONA" (taking no position in these proceedings).

DECISION OF THE BOARD; May 12, 1998

INTRODUCTION: WHAT THIS CASE IS ABOUT - IN GENERAL

1. This decision deals with the relationship between a certification application filed by the CHCW under the Labour Relations Act, 1995, and a later application filed by the SEIU under the Public Sector Labour Relations Transition Act, 1997 ("Bill 136"). The chronology is fairly simple: Bill 136 came in to force on October 29, 1997; the CHCW filed its certification application on November 21, 1997; and the SEIU filed a Bill 136 application, in response, on November 25, 1997. The Board is being asked to determine whether the certification matter can still proceed, given the later filing of the Bill 136 application. And that, in turn, requires the Board to consider the relationship between the Labour Relations Act and Bill 136.

2. It may be useful to begin by briefly describing what the certification proceeding is about.

3. In its application for certification, the CHCW seeks to represent a grouping of service employees, who work at the "Parkwood Hospital" and the "McCormick Home for the Aged" in London, Ontario. Those service employees are currently represented by the SEIU. The CHCW seeks to replace the SEIU as the employees' bargaining agent.

4. The Board has already held a representation vote at the two facilities, so that employees can indicate whether they wish to be represented by the CHCW or the SEIU. The Board has segregated the ballots from each institution, so that the ballots can be counted separately. The balloting was conducted in this way in order to preserve the option of defining separate bargaining units for each institution, so that the employees at each location can decide, separately, which union they prefer. However, those ballot boxes have been sealed pending a resolution of the outstanding issues in this case.

5. The reasons for sealing the ballot boxes are set out in the Board's decision of December 22, 1997, and will not be repeated here. It suffices to say that, a few days after the certification application was filed, the SEIU made an application under Bill 136, which, it says, prevents the CHCW's certification applications from going forward. In view of this challenge, the Board decided to seal the ballot boxes, until the parties had an opportunity to address the SEIU's objections.

6. Briefly put, the SEIU argues that Parkwood hospital is currently involved in a multi-institution "restructuring process" to which Bill 136 applies. At the end of that process, Parkwood will no longer be owned and operated by the Women's Christian Association of London ("WCA") - the named employer in the certification applications. Instead, Parkwood will become part of the St. Joseph's Health Centre, and St. Joseph's will replace the WCA as the employer of the service employees working at Parkwood.

7. The SEIU says that until this restructuring exercise is completed, the SEIU's status as bargaining agent cannot be challenged. Bill 136 imposes a "bar"; and the employees will simply have to wait.

8. It is not entirely clear how long the employees may have to wait, because the restructuring of these health care facilities has been ongoing since early 1997, and, I am told, may ultimately involve a number of other, formerly independent, organizations. At the end of the day, there will be fewer, larger, health care organizations in the London area. However, at this stage, it is difficult to predict what shape the restructured organizations will take, or how long it will take to complete the process. So, as a practical matter, the "bar" asserted by the SEIU may last for years.

9. The CHCW replies that there is no "bar" at all under Bill 136, either because Bill 136 simply does not apply, or because the provisions of Bill 136 do not create any legal obstacle to the CHCW's outstanding certification application, even if they do apply.

10. The CHCW argues that the Board has a discretion whether or not to apply Bill 136, as well as a discretion about how Bill 136 should be applied in a hospital setting; and, in the CHCW's submission, the Board should not exercise either of those discretions in a way that would derail the outstanding certification proceedings. In the CHCW's submission, its certification proceeding was first in time, and should be dealt with before considering the subsequent application under Bill 136. The CHCW urges the Board to count the ballots and dispose of the certification issues in accordance with the wishes of the employees. In the CHCW's submission, the employees should not be saddled with a union that they do not want.

11. The CHCW further argues that even if Bill 136 were made to apply, the provisions of Bill 136 do not prevent employees from changing bargaining agents in the setting here under review. A timely certification application was already filed with the Board before anyone sought to invoke Bill 136, and in the CHCW's submission, the certification application can proceed to a conclusion without any conflict with any section of Bill 136 - and, indeed, without any conflict with the policy objectives of Bill 136. The CHCW says that the SEIU's Bill 136 reference was filed as a defensive measure, to prevent employees from changing bargaining agents. It has nothing to do with the "restructuring problems" to which Bill 136 was addressed.

12. The CHCW argues that, as a matter of interpretation, the facts of this case do not engage the provisions of Bill 136 - either generally, or specifically, with respect to the sections "barring" a certification application while a Bill 136 proceeding is underway. Quite apart from that, though, the CHCW argues that, as a policy matter, there is no reason to apply Bill 136 here, because there is no bargaining unit/bargaining agent restructuring issue requiring the application of Bill 136. The CHCW says that it is prepared to "stand in the shoes" of the SEIU, as bargaining agent for the bargaining units formerly represented by the SEIU, and is content to abide by all of the agreements and understandings formerly given by the SEIU. Its certification will not inhibit restructuring at all.

13. The CHCW says that its confirmation as the employees' bargaining agent will not interfere with the institutional restructuring that is currently ongoing. It will merely ensure that the nominal bargaining agent actually does represent the employees involved in that process. The CHCW says that these employee rights should prevail unless there is a clear conflict with the provisions or purposes of Bill 136, and here there is neither.

14. In summary, the CHCW maintains that Bill 136 cannot stand in the way of the certification proceeding, because the legal preconditions necessary for the application of Bill 136 have not been met. In the alternative, the CHCW says that even if Bill 136 could be made to apply, there is no conflict between Bill 136 and the certification provisions of the Labour Relations Act. The CHCW contends that the employees are entitled to be represented by the union of their choice, where, as here, these employee interests can be accommodated without conflicting with the purposes or processes established in Bill 136.

SOME MECHANICS

15. The foregoing is a brief statement of "the problem" posed by the two kinds of application now before the Board. That "problem" was canvassed by counsel in their written submissions, and in a 2-day "consultation" held in late January 1998. I have used the term "consultation" because these issues were explored pursuant to section 37 of Bill 136, which reads this way:

16. (1) Subject to this section, sections 110 to 118 of the Labour Relations Act, 1995 apply, with necessary modification, with respect to anything the Board does under this Act.

(2) Where the Board is given authority to make a decision, determination or or order under this Act, it shall be made,

(a) by the chair or, if the chair is absent or unable to act, by the alternate chair; or

(b) by a vice-chair selected by the chair in his or her sole discretion or, if the chair is absent or unable to act, selected by the alternate chair in his or her sole discretion.

(3) The Board may authorize a labour relations officer to inquire into any matter that comes before it under this Act and to endeavour to settle any such matter.

(4) The Board has, in relation to any proceedings under this Act, the same powers to make rules to expedite proceedings as the Board has under subsection 110(18) of the Labour Relations Act, 1995.

(5) Rules made under subsection (4) apply despite anything in the Statutory Powers Procedure Act.

(6) Rules made under subsection (4) are not regulations within the meaning of the Regulations Act.

(7) The Board may make interim orders with respect to a matter that is or will be the subject of a pending or intended proceeding.

(8) The Board shall make decisions, determinations and orders under this Act in an expeditious fashion.

(9) A decision, determination or order made by the Board is final and binding for all purposes.

(10) Subsections 96(4), (6) and (7) and sections 122 and 123 of the Labour Relations Act, 1995 apply, with necessary modifications, with respect to proceedings before the Board and its decisions, determinations and orders.

Section 37 incorporates sections 110(18) to (22) of the Labour Relations Act, which read:

110. (18) The Board may make rules to expedite proceedings to which the following provisions apply:

111. Section 13 (right of access) or 98 (interim orders).

112. Section 99 (jurisdictional, etc., disputes).

113. Subsection 114(2) (status as employee or guard).

114. Sections 126 to 168 (construction industry).

115. Such other provisions as the Lieutenant Governor in Council may by regula­tion designate.

(19) Rules made under subsection (18) come into force on such dates as the Lieutenant Governor in Council may by order determine.

(20) Rules made under subsection (18),

(a) may provide that the Board is not required to hold a hearing;

(b) may limit the extent to which the Board is required to give full opportunity to

the parties to present their evidence and to make their submissions; and

c) may authorize the Board to make or cause to be made such examination of records and such other inquiries as it considers necessary in the circumstances.

(21) Rules made under subsection (18) apply despite anything in the Statutory Powers Procedure Act.

(22) Rules made under subsection (17) or (18) are not regulations within the meaning of the Regulations Act.

And, to complete the picture, the Board's "Bill 136 Rules" provide:

COMMENCEMENT

108a. These rules come into effect on November 1, 1997.

Manner of Filing

108k. Documents required to be filed with the Board under these rules may be filed in any manner except facsimile transmission.

Number of copies to be filed

1081. Parties must file three (3) copies of their application or response.

Verification of Delivery at time of Filing

108m. The parties must verify in writing at the time of filing that they have delivered the application or response to the other party or parties as required by these rules.

Obligation to deliver copies of all filings to all other parties

108n. In addition to applications and responses, a party filing any document or correspondence with the Board must at the same time deliver a copy of the document or correspondence to all other parties in the case. Any such document or correspondence filed with the Board must be accompanied by a statement that the party filing it has delivered the document or correspondence to all other parties as required by this Rule. The statement must also include the names and titles of the persons to whom the documents were delivered and information regarding the date, time and method of delivery.

APPLICATIONS UNDER SECTION 21, 22 or 23 OF THE ACT

108o. Unless the Board directs otherwise, Rules 12(d) and 14(d) do not apply to applications under section 21, 22 or 23 of the Act.

lO8p. An application under section 21, 22 or 23 of the Act (which may include a related application under section 9 of the Act) must be made on Form GG- 1.

108q. The applicant must deliver the following to the responding parties before filing its application with the Board: (a) a completed copy of the application; and (b) a blank response form (Form GG­ 2).

GENERAL

108w. In order to expedite proceedings in an application under the Act, the Board may, on such terms as it considers advisable, consult with the parties, conduct a pre-hearing conference, issue any practice direction, shorten or lengthen any time period, change any filing or delivery require­ment, schedule a hearing, if any, on short notice, or cancel a hearing, make or cause to be made such examination of records or other inquiries as it considers necessary in the circumstances, or limit the parties’ opportunities to present their evidence or to make their submissions.

108x. Where the Board is satisfied that a case can be decided on the basis of the material before it, and having regard to the need for expedition in labour relations, the Board may decide the application under the Act without an oral hearing.

16. As will be seen, Bill 136 contemplates a dispute resolution process that is very different from the standard litigation model. The Board is expected to do its work quickly, and without the requirement of a traditional hearing.

17. There is not much doubt that, but for Bill 136, the CHCW's certification application would proceed in accordance with the Labour Relations Act, the ballots would be counted, and the employee wishes would probably prevail. Indeed, were it not for Bill 136, that is the way that the certification application would unfold even of Parkwood were being (or had been) transferred from the WCA organization to the St. Joseph's organization. That is so, because, under the Labour Relations Act, an otherwise timely certification application is not derailed merely because a "part" of the business organization is being transferred from one owner to another. The new employer is simply "plugged in" to the certification proceeding, the matter continues as before, and any "reorganization questions" are sorted out under the "successor rights" provisions of the Act (see below and see section 69 of the Labour Relations Act). So, were it not for Bill 136, the disposition of Parkwood would not affect the CHCW's certification application.

18. Nevertheless, it is certainly arguable that Bill 136 changes the situation; and, as things now stand, the new statute is completely uncharted territory. The Board has yet to consider the precise relationship between rights found in the Labour Relations Act, and the restructuring formula prescribed in Bill 136; and the reality is: Bill 136 may not address those issues specifically or completely -especially in an unusual situation like the present case, where the restructuring was already in progress when Bill 136 was proclaimed, where only one part of an institution is being transferred to a new setting, and where the certification proceeding was ongoing before any Bill 136 application was made. This case is a bit of a puzzle. That is why the Board sealed the ballot boxes pending receipt of the parties' submissions.

19. There is no doubt, though, that the applications before the Board present a rather novel mix of facts in the context of a totally new legislative regime; and, as things now stand, it is not at all clear how the two pieces of legislation fit together or potentially collide. Of course, in the event of any operating incompatibility between the two statutes, the provisions of Bill 136 must prevail (see section 39 of Bill 136). Bill 136 is paramount. But, it is not at all clear whether, in a case like this one, there actually is such operating incompatibility, or whether through the exercise of discretion the Board can avoid any collision, while, at the same time, furthering the stated purposes of both statutes.

20. Accordingly, given the novelty of the case, it may be useful to begin by considering how it would have unfolded under the Labour Relations Act, were it not for Bill 136. I will then look at Bill 136, to see whether the outcome would or should be different - either because Bill 136 commands a different result, or because that is what makes labour relations sense, having regard to the purposes of Bill 136 and the various discretions given to the Board under Bill 136.

THE FACTUAL SETTING - IN BROAD OUTLINE

21. The City of London has a number of health care facilities, that, historically, have been separately owned and operated. These undertakings form part of the mosaic that is now commonly described as the "broader public sector". They have a number of common features: they are all engaged in providing public services, they are all subject to various forms of public regulation, and, in many cases, they receive financial support (directly or indirectly) from the public purse.

22. In an era of fiscal restraint, governments of all stripes have begun to look for ways to improve service delivery, and make these pubic sector institutions more "cost effective". In the health care sector, that means the merger of hospitals, the consolidation of programs, shared service arrangements, and so on. However, these reforms "on the employer side of the bargaining table" usually have collective bargaining consequences, which may necessitate changes "on the union side of the table". That is the process to which Bill 136 is directed.

23. The City of London has not been immune from these influences. In fact, hospital reorganiza­tion has been part of the local scene for many years. The current round of "restructuring" is part of an ongoing process, which, as we shall see, began well before the passage of Bill 136.

24. The St. Joseph's Health Centre is a broadly-based health care organization, with a religious orientation and a number of institutional components. As I understand it, the current structure of St. Joseph's reflects some previous (i.e. pre-Bill 136) reorganization, so that it now operates several different kinds of facilities at several different sites. For collective bargaining purposes, St. Joseph's is subdivided into a number of different bargaining units represented by various trade unions. Among those bargaining units are several separate "service units", currently represented by the SEIU.

25. It appears, therefore, that the current bargaining structure at St. Joseph's is already quite fragmented, even within the generic employee groupings that one normally finds in the hospital sector (i.e. service units, paramedical units, nursing units, etc.). There are already a number of separate "service units" - no doubt reflecting the fact that, at one time, the institutions now grouped together under the St. Joseph's umbrella, were once separate facilities. And all of these service units are now represented by the SEIU.

26. There is nothing in the material before me to suggest that this multiplicity of service units has generated any serious labour relations problems. There is, for example, no indication that St. Joseph's has sought to consolidate some of those service units. On the contrary, it appears that the parties have been content to live with the somewhat balkanized bargaining structure that is associated with the institutional subdivisions within the St. Joseph's organization. The absorption of Parkwood will add two more service units, that St. Joseph's plans (for the time being at least) to leave intact.

27. Historically, the Women's Christian Association (WCA) of London has owned and operated a public hospital known as "Parkwood Hospital" and a separate home for the aged, known as the "McConnick Home". The service employees working at the two sites are also represented by the SEIU. But the bargaining unit configuration is a bit eccentric. One "service unit" consists of a broad grouping of workers at both geographically-separate institutions, together with the RPNs at the McCormick Home. That service unit crosses institutional lines, and covers service employees working at both sites. In addition, there is another, much narrower bargaining unit, that encompasses only the RPNs at Parkwood Hospital.

28. The CHCW's objective is to displace the SEIU as the bargaining agent for all employees at the Parkwood and McCormick sites, now represented by the SEIU. The CHCW "wants" what the SEIU currently has; and its certification applications have been framed to secure that result.

29. This historical status quo is fairly easy to describe. The problem is, that since early 1997, St. Joseph's and the WCA have been working together with a view to transferring Parkwood Hospital to St. Joseph's. This has not been a completely consensual exercise, because in June 1997, the Health Services Restructuring Commission directed that the WCA relinquish to St. Joseph's the ownership, operation, management and control of Parkwood Hospital, including its programs, services, buildings and assets by September 30, 1997. That deadline was subsequently extended to November 30, 1997; however by December 1, 1997, St. Joseph's was to assume all of the funding, facilities, and functions formerly associated with Parkwood.

30. In other words, well before the proclamation of Bill 136, St. Joseph's and the WCA were engaged in a process designed to transfer Parkwood from the WCA organization to the St. Joseph's organization; and that staged process included events which might at the time have been considered legally significant under the Labour Relations Act (i.e. pre-Bill 136), and might now be considered legally significant under Bill 136 (if the Board determines that Bill 136 applies). Moreover, the transfer and absorption of Parkwood was still ongoing while these proceedings were before the Board, with the result that a more complete chronology looks like this:

• February 1997: discussions about the Parkwood transfer begin

• June 1997: the Hospital Restructuring Commission orders the transfer of Parkwood by September 30, 1997 - later extended to November 30, 1997

• September 1997: some WCA directors join the Board of directors of St. Joseph's

• October 29, 1997: Bill 136 comes in to force

• November 21, 1997: the CHCW files its various certification applica­tions in respect of employees at McCormick and Parkwood

• November 25, 1997: the SEIU files its Bill 136 reply, raising a "bar" to the certification applications

• November 30, 1997: the transfer is nominally completed so that St. Joseph's has the assets, funding and responsibilities of Parkwood (i.e. the WCA has relinquished any residual control)

31. In other words, a legally significant event - the completion of the asset transfer - (arguably a "successorship" in itself under one statute or another) may have occurred on November 30, 1997 after the litigation started.

32. What does one make of the fact (asserted by St. Joseph's and the WCA but questioned by the CHCW) that by September 1997, the St. Joseph's board of directors contained 10 members from the WCA, so that it might be said that, from that point, (pre-Bill 136) the St. Joseph's and Parkwood organizations were being governed at the top by a single management team? What does one make of the fact (not seriously disputed) that as of December 1, 1997, St. Joseph's was to have acquired the ownership, operations, management, funding and control of Parkwood - that is, after the proclamation of Bill 136, but also after both the certification application and the Bill 136 application were filed with the Board? What does it mean that the "purported merger" of part of the "service provider" may have occurred while these proceedings were pending before the Board; or to put the matter another way, that legally significant events may have occurred after the proceedings were launched?

33. Conversely, what is the situation at the McCormick Home, to which the pending certification applications also apply? It is not disputed that only Parkwood Hospital has been affected by the above-described "restructuring exercise". The McCormick Home continues to be operated by the WCA. But, in the circumstances, how do the certification applications now apply to the two "parts" of the once unified organization that was run by the WCA? What happens if, in the course of a certification application, "part" of the target bargaining unit is split off and transferred to another employer in a transaction to which the Labour Relations Act and/or Bill 136 may apply?

34. I should observe, parenthetically, that while these may be interesting questions under the Labour Relations Act or Bill 136, they did not engage the parties' attention, prior to the certification application filed by the CHCW. Until the CHCW arrived on the scene, the SEIU, St. Joseph's, and the WCA were working, step by step, towards the orderly absorption of Parkwood Hospital into the St. Joseph's organization; and there was no dispute about the resulting bargaining unit configuration. Indeed, there was an agreement that the bargaining unit status quo would be preserved while this process was underway.

35. This agreement or understanding to preserve the bargaining unit status quo was not reduced to writing, so I am unable to say whether the Parkwood units were to remain intact permanently, or whether this was an interim arrangement, pending a reconsideration of the bargaining unit structure at some later stage of the organizational evolution. What can be said is that a balkanized bargaining structure was not, in itself, thought to be an impediment to restructuring the two organizations. The absorption of Parkwood would merely add two more "service units" to the mix of service units already in place in the St. Joseph's organization - although, of course, at that point, all of these employees were represented by the SEIU. Nevertheless, it is difficult to resist the conclusion that whatever Bill 136 may say about "rationalizing" the bargaining structure, it has not been a dominant concern of the institutional parties in this case - at least not at this point.

36. I will return to some of these questions later. First, I will look briefly at certain features of the Labour Relations Act, under which the certification applications were brought. It seems to me that it may be useful to consider how this case would have unfolded under the Labour Relations Act before determining how the situation may have been, or may have to be, modified by Bill 136.

SOME GENERAL OBSERVATIONS ON THE SCHEME OF THE LABOUR RELATIONS ACT, AND HOW THIS CASE WOULD LIKELY HAVE UNFOLDED IF BILL 136 DID NOT APPLY.

37. Under the Labour Relations Act, a trade union can become the exclusive bargaining agent for a bargaining unit of employees by demonstrating that the majority of those employees want that trade union to represent them. The wishes of the employees are tested by means of a representation vote. A vote is triggered when a trade union applies for certification, and makes out a plausible case that at least 40% of the employees have an interest in being represented by that union. The Board then orders a vote to test whether the union actually does represent a majority of the affected employees.

38. If employees are unrepresented, there are very few limitations on their right to form or join a trade union. They can do so at any time. However, if employees are already represented by a trade union, they can only oust their existing bargaining agent and select a new one, towards the end of an existing collective agreement.

39. This formula is modified a little bit in the hospital sector, where interest arbitration provides the mechanism for achieving a new collective agreement. In the hospital sector, a challenge to an incumbent union must sometimes be postponed because of an ongoing arbitration proceeding. But the basic scheme remains the same: every two or three years employees will have a window of opportunity to reject their bargaining agent altogether (i.e. go non-union) or select a new trade union to represent them. The trade union's status depends ultimately upon the support of employees. For among the purposes of the Labour Relations Act, (listed in section 2), one finds this one:

40. The following are the purposes of the Act:

41. To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees.

42. A fundamental premise of our collective-bargaining system is that the trade union should be the "freely-designated representative of employees". Collective bargaining is an instrument for employ­ees to advance their position through a trade union of their own choice; and if employees are dissatisfied with a trade union's performance, the law allows them to "go non-union" or choose a new bargaining agent by supporting a certification application by a rival union.

43. That is what the employees have done in this case. Quite a number of them have signified their support for the CHCW, and the CHCW has applied for certification as their bargaining agent. Upon receipt of that certification application, the Board directed a representation vote, so that the employees could choose between the SEIU and the CHCW.

44. Were it not for Bill 136, the result of that certification application would in all likelihood be determined by the wishes of employees. If the CHCW won the vote, the CHCW would become the bargaining agent for the bargaining unit(s) of employees now represented by the SEIU. The CHCW would be the "freely-designated representative of the employees". Conversely, if the CHCW lost the vote, its certification application would be dismissed, and the employees would continue to be repre­sented by the SEIU.

45. It is important to note, however, that a "displacement certification application" (or "raid") like the one before the Board in this case, does not normally change either the number or description of the bargaining units. It merely allows the employees in those units to change their union affiliation. To put the matter another way: a raid by one union upon another has no effect on the bargaining structure - only upon the identity of the bargaining agent. The raiding union merely "takes" what the incumbent union "has", and the bargaining structure remains unchanged.

46. The discussion so far has focused on changes on "the union side of the bargaining table". But the Labour Relations Act also contemplates the possibility of change "on the employer side", because, from time to time, a business (or parts of it) may be sold or otherwise transferred to another business organization. If that happens, the statute provides that collective bargaining rights flow through such changes of ownership, so long as there is a continuation of the same business. Basically, the new owner steps into the shoes of its predecessor.

47. But what if the new owner is already unionized and has its own collective agreement? What if the new owner wants to intermingle employees of the two businesses, so that the inherited bargaining structure and collective agreement may no longer make sense in the new operational setting? If that happens, the Board has a discretion to sort out those problems, and has the power to redefine the bargaining unit perimeter, terminate bargaining rights, or conduct such representation votes as it considers appropriate (see generally section 69(6) of the Act).

48. Most of section 69 is concerned with the impact of business transfers on established bargaining rights. However, this 'flow-through principle" is also triggered where there is a transfer of ownership while a certification application is pending before the Board. Section 69(2) of the Labour Relations Act reads, in part, as follows:

…..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.

And section 69(1) provides:

69. (1) In this section,

"business" includes a part or parts thereof;

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

47. So, in summary, the Labour Relations Act contemplates the transfer of all or part of an organization from employer A to employer B; and meets this contingency with the flow-through formula described above. That is the approach which would have applied in this case, were it not for Bill 136.

48. If there were no business reorganization or disposition involving the WCA, the certification applications currently before the Board would be processed in the ordinary course, and, if timely (as they seem to be here) would, in all likelihood, be resolved in accordance with the wishes of employees, recorded in a representation vote. Alternatively, if there were some kind of disposition affecting all or part of the the WCA organization, before the certification application was filed or while the certification application was pending before the Board, the certification would still go forward, and the transferee would be "plugged into" the process, by virtue of section 69 of the Labour Relations Act. The Board would then address any problems involving the identity of the employer or the bargaining unit perimeters, or the continuation of bargaining rights under section 69(6) of the Act, which reads as follows

49. (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.

49. Under the Labour Relations Act, a transfer of all or part of a "business' would not derail a certification application, and questions of bargaining structure are sorted out under section 69(6).

BILL 136 - SOME GENERAL OBSERVATIONS

50. The Labour Relations Act is a general collective bargaining statute, with only a few provisions dealing with business reorganization. By contrast, restructuring is one of the central themes of Bill 136, which is entitled: "An Act to provide for the expeditious resolution of disputes during collective bargaining in certain sectors and to facilitate collective bargaining following restructuring in the public sector and to make certain amendments to the Employment Standards Act and the Pay Equity Act". Section 1 of Bill 136 sets out these purposes:

51. The following are the purposes of this Act:

52. To encourage best practices that ensure the delivery of quality and effective public services that are affordable for taxpayers.

53. To facilitate the establishment of effective and rationalized bargaining unit structures in restructured broader public sector organizations.

54. To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees following restruc­turing in the broader public sector and in other specified circumstances.

55. To foster the prompt resolution of workplace disputes arising from restructur­ing.

56. The background of Bill 136 is familiar to everyone: the merger of school boards and municipalities, the closure or reorganization of public hospitals, the restructuring of public utilities, and so on. Each of these organizational reforms has an impact on collective bargaining; and in view of the pace and volume of change, the Legislature has determined that new tools are needed to rationalize the collective-bargaining structure, and facilitate collective bargaining in the new setting. That is the purpose of Bill 136; and to accomplish that objective, the Board has been given new powers to merge or realign bargaining units and determine which trade union will represent employees in those more broadly-based units.

57. The focus of Bill 136 is on institutional change, and the consequent need to rationalize bargaining structures. But Bill 136 has not abandoned the notion of employee self-determination -either in its stated purposes or its substantive provisions. There is still a recognition that the trade union should be the "freely-designated representative of the employees", and the statute makes extensive use of representation votes so that employees will have an opportunity to participate in the selection of their bargaining agent.

58. In other words, while employee wishes may not bulk large in the determination of bargaining unit perimeters, they remain a significant factor to be taken into account in the selection of the bargaining agent - just as they are under the Labour Relations Act. Moreover, if the values and processes found in that Act can be squared with Bill 136, without serious friction, it seems to me that the Board should endeavour to do that. The fact that Bill 136 is paramount does not presuppose any particular inconsistency, nor preclude efforts at harmonization.

59. I will return to this consideration later.

60. Bill 136 is triggered by what might be described as a "restructuring event" (usually some form of merger) involving the employer. It is that restructuring event that makes it necessary to redefine the bargaining structure, and may make it necessary to determine which trade union represents employees in the newly-defined bargaining unit(s). In most cases, the date of the restructuring event fixes the so-called "changeover date", which Bill 136 uses as a kind of "before and after" benchmark, for a variety of statutory purposes.

61. The statute permits a new employer and the affected trade unions to agree on the number and description of the bargaining units. The affected parties can also agree on the identity of the union that will represent each bargaining unit. And, if there is complete agreement, there is no need for any Board involvement in this aspect of the restructuring process (sections 20 and 21). However, in the absence of such agreement, the Board has to resolve these issues, taking representation votes as necessary to determine which competing union will prevail. And if 40% of the employees in the new bargaining unit(s) were "non-union" before the restructuring event, there must be a non-union option on the ballot as well.

62. For present purposes, it is unnecessary to review the restructuring mechanism in any detail. It suffices to say that Bill 136 combines successorship notions familiar from the Labour Relations Act, with a greatly expanded authority - indeed imperative - to restructure bargaining units to suit the new institutional setting. Bill 136 envisages that the amalgamation or rationalization of public sector service providers (school boards, municipalities, hospitals, etc.) will be accompanied by a parallel process for consolidating bargaining units - using representation votes, as necessary, to allow employees to choose between competing unions. While this process is under way, bargaining rights are maintained in the "like unit" that existed before (section 14), the collective agreements continue to apply (section 15), and certain ongoing proceedings are terminated until the restructuring exercise is completed (section 18). Once the new bargaining units and bargaining agents are determined, the resulting employer and union parties are expected to renegotiate the amalgam of predecessor collective agreements (notionally "stapled together" and treated as one) which have been maintained in place up to that point (see sections 14 and 24).

63. In most cases, what sets the Bill 136 process in motion is some kind of merger of public sector organizations, that before that, were separate "employers" under the Labour Relations Act. However, I have used the term "restructuring event" in an earlier paragraph, because in the hospital sector, the Board's restructuring powers can be engaged without any formal merger of the predecessor entities. Sections 8 and 9 of Bill 136 read this way:

64. (1) This Act applies upon the amalgamation of two or more hospital corporations during the transitional period.

(2) For the purposes of this Act, the corporations that are amalgamated are the predecessor employers and the corporation that exists when the amalgamation takes effect is the successor employer.

(3) For the purposes of this Act, the changeover date is the date on which the amalgamation takes effect.

(4) In this section, "hospital corporation" means a corporation that operates a hospital.

9. (1) The Board may by order declare that this Act applies as a result of,

(a) the merger of all or part of the operations or administration of two or more employers who operate hospitals during the transitional period; or

(b) a substantial restructuring of two or more employers who operate hospitals during the transitional period.

(2) The order must specify which employers are the predecessor employers and which are the successor employers for the purposes of this Act.

(3) For the purposes of this Act, the changeover date is the date on which the order is made, or such other date during the transitional period as the order may specify. The order may specify a date earlier than the date on which it is made.

(4) An employer operating a hospital that may be the subject of an order or a bargaining agent that represents employees at such a hospital may request the Board to make the order.

(5) The Board shall not make an order under this section except pursuant to a request under subsection (4).

(6) When making an order under this section, the Board shall consider the following factors and such other matters as it considers relevant:

1. The scope of agreements under which services are shared by the participating hospitals.

2. The extent to which the participating hospitals have rationalized the provision of services.

3. The extent to which programs have been transferred among participating hospitals.

4. The extent of labour relations problems that have resulted or could result from the agreements, rationalizations or transfers.

(7) This section does not apply with respect to an employer that is a municipality or local board or the Crown.

59. Section 8 contemplates the same kind of mergers that have happened recently with school boards or municipalities (for example, the new City of Toronto). Section 8 envisages a formal fusion of the predecessor corporations. The date of the amalgamation establishes the "changeover date".

60. Section 9 is a little different. Section 9 contemplates the discretionary application of the Act in what might be described as an "operational merger" - a situation where there has been a "rationaliza­tion of service delivery" between corporate entities that are not formally amalgamated. Section 9 extends the statute's remedial reach to circumstances which do not fit a standard merger scenario, but nevertheless give rise to the kinds of problems to which Bill 136 is addressed.

61. Section 9(6) sets out some of the circumstances which the Board must consider in deciding whether to make an order under section 9(1). These items illustrate the kind of scenario which would not be caught by section 8, but to which Bill 136 might sensibly apply. However, in deciding whether section 9 "should be made to apply" (i.e. how the Board should exercise its discretion under section 9(1)), it seems to me that the Board should also take into account the general scheme and purposes of Bill 136, read as a whole. Those purposes are recorded in section 1 of Bill 136, that has been reproduced above.

62. What is missing from this overview - but also from Bill 136 itself - are any clear rules about how the restructuring processes governed by Bill 136, "can" or "should" be squared with the acquisition of bargaining rights by certification under the Labour Relations Act. Section 18 of Bill 136 terminates certain outstanding proceedings following the occurrence of a restructuring event, but outstanding certification proceedings are not among those mentioned in section 18. Section 18 does not address new certification or termination applications at all - which suggests (at least implicitly) that the Legislature did not intend any automatic suspension of such matters.

63. Similarly, section 39 of Bill 136 provides a statutory override in the event of any operating incompatibility between Bill 136 and any other statute. In the event of a collision, Bill 136 prevails. But there is no suggestion that a new certification application automatically generates that kind of conflict. In fact, section 15(4) of Bill 136 contains these words:

"If ... after the changeover date a bargaining agent is certified or voluntarily recognized as the bargaining agent for a bargaining unit of the successor employer but there has never been a collective agreement between the bargaining agent and the successor employer, the following rules apply

That language specifically contemplates that there may be a successful certification application after the "changeover date", (i.e. the date on which the merger or other restructuring event occurs). These words would be unnecessary if the merger (etc.), automatically prevented a certification or termination application from being made or from being continued.

64. The only provision of Bill 136 that expressly restricts certification applications is section 28, which reads as follows:

65. (1) Subsections (2) and (3) apply if an order under section 22 is requested.

(2) During the period beginning 10 days after the order is requested and ending when the order is made, no person may apply for certification of a bargaining agent to represent employees of the successor employer who are not members of a bargaining unit when the order is requested.

(3) During the period beginning when the order is requested and ending when the first collective agreement between the parties comes into operation after a collective agreement continued under subsection 24(2) or a composite agreement expires, no person may apply,

(a) for a declaration that the trade union no longer represents the employees in the bargaining unit; or

(b) for the certification of a different bargaining agent to represent the employees in the bargaining unit.

Thereafter, the right of a person to make the application is determined under the Act that otherwise governs collective bargaining in respect of the employees.

(4) Subsection (3) applies with necessary modifications if an agreement under section 20 is in effect and, for that purpose, the applicable period begins when the agreement comes into effect.

65. Section 28(2) contemplates that non-union employees may make a certification application despite an application to the Board to restructure bargaining units under Bill 136. Indeed, the section gives non-union employees an additional 10 days after the order is requested to make their application. In other words, not only is there no incongruity between an outstanding certification application and an outstanding restructuring request, but the Legislature has given non-union employees an extra window of opportunity to make such certification application, despite a Bill 136 request. The statute clearly contemplates that the two can proceed together - or, at least, that the certification application can go forward without any necessary conflict with Bill 136.

66. Against that background, it is difficult to see why employees should be in a substantially different position if they want to change bargaining agents. There is no obvious policy reason why this should be so - particularly when changing unions would not normally have any effect on bargaining unit structure. For as I have already noted, the Board's normal policy in such matters is that a raiding union is required to "take" the unit as it finds it, so that a "raid" has no impact on the bargaining structure at all. All that happens is that one union is substituted for another, in accordance with the wishes of the employees in the bargaining unit.

67. To trigger a section 28(3) bar, there must be a restructuring request to the Board under section 22 - in which case the bar begins to operate when the request is made. The section 28(3) bar has no retroactive effect on certification applications already in process. Thus, if the certification application is made prior to the application of Bill 136, or to a request made under Bill 136, section 28(3) raises no obstacle.

68. To trigger a section 28(4) bar, the parties must have an agreement on the bargaining unit configuration properly entered into under section 20 - in which case the bar begins to operate when that agreement comes into effect. Again, there is no retroactive effect; moreover, the agreement must be one that otherwise meets the statutory requirements.

69. I shall have more to say later about each of these provisions - and, in particular, about the express restrictions on certification found in section 28. For the moment, I simply observe that a restructuring event (for example, a merger) does not automatically raise a bar to a certification application by non-union employees, or to an effort by employees to oust one trade union and replace it by another.

70. So, in summary, unless the circumstances of this case engage section 8 or 9 of Bill 136, Bill 136 has no application at all, and the situation falls to be determined under the general provisions of the Labour Relations Act. However, even if Bill 136 can be said to apply, it is not at all clear that a certification application is barred; and it is certainly not barred automatically upon the occurrence of the restructuring event. Finally, in exercising its discretion under section 9, I think that it is sensible for the Board to ask whether there is a good labour relations purpose for making the Act apply at the time and in the circumstances under review - which is to say, a purpose rooted in the restructuring imperatives of Bill 136. Because if there is no obvious Bill 136 purpose to be served, it may make sense to let matters work themselves out under the Labour Relations Act, reserving the parties' rights to make a later application under Bill 136 if a restructuring problem actually does arise. The fact that Bill 136 may not apply now, or in the manner suggested by the SEIU, does not mean that it cannot apply later, or to address concrete restructuring issues.

71. With these observations, then, I will examine the "bar question" in a little more detail.

DOES (OR SHOULD) BILL 136 APPLY IN THIS CASE, AND IF BILL 136 DOES APPLY, WOULD THERE BE A "BAR" TO THE CHCW'S CERTIFICATION APPLICATION?

72. On the basis of the material before me, I am not persuaded that there has been an "amalgam­ation of two or more hospital corporations during the transition period", within the meaning of section 8 of Bill 136. There may have been a transfer of certain functions or assets from the WCA to St. Joseph's. But I do not think that the two corporations have been "amalgamated". Each of them maintains its separate existence and continues to deliver services to the public in accordance with its own mandate. The two organizations have not become one.

73. Moreover, the interaction between the WCA and St. Joseph's in furtherance of the Parkwood transfer cannot be construed as an "amalgamation" during the transition period - or at least during the transition period, and prior to the CHCW's certification application.

74. The transition period is defined in section 2 of Bill 136. It begins on October 29, 1997 when Bill 136 was proclaimed, and runs until December 31, 2001. Nothing happened after October 29, 1997 but before the filing of the CHCW's certification application on November21, which could be construed as an "amalgamation" - which is what would be necessary in order to engage section 8 and fix a "changeover date" before the certification application was filed.

75. It is true that certain directors from the WCA crossed over to St. Joseph's in September 1997. But I do not think that amounts to an "amalgamation" of two or more hospital corporations; and in any event, that change occurred in September 1997 - prior to the proclamation of Bill 136, and therefore prior to the beginning of the "transition period" defined in section 2. It did not happen during the transition period.

76. Accordingly, I do not think that section 8 has any application to the issues raised in this case; for even if it were applicable as of December 1, 1997 (i.e. if the transfer of assets were somehow said to effect the "amalgamation" of the hospital corporations), that would not generate a changeover date prior to the CHCW's certification application on November 21, 1997.

77. Does section 9 apply? Or, more accurately, since the Board has a discretion under section 9(1), "should" section 9 be made to apply? And if section 9 could apply, should the Board also exercise its discretion under section 9(3) to set a "changeover date" prior to November 21, 1997 - which is to say, in a manner that might raise a potential timeliness issue for the CHCW's certification application?

78. That is what the SEIU urges the Board to do. The SEIU argues that the Board should "back­date" the "changeover date" to a point prior to the filing of the SEIU's Bill 136 application, in order to set up a potential timeliness problem for the CHCW's certification application. The SEIU argues that it is necessary to do that, so that a change in bargaining agents for the employees of Parkwood, will not inhibit the restructuring process in which Parkwood is engaged. (I say "potential" timeliness problem, because it is not so clear that this would necessarily raise a bar. As I have already noted, the statute seems to contemplate that, in at least some circumstances, a certification application can proceed even after the "restructuring event" which fixes the "changeover date" - again, see section 15(4) of Bill 136.)

79. However, there are several problems with the SEIU's proposition.

80. First of all, I can think of no good policy reason (i.e. a reason rooted in the purposes of Bill 136) for the Board to exercise its discretion in this way. Why should the Board back-date the changeover date to some artificial point after October 29, 1997, but before November 21, 1997, when the CHCW's certification application was filed? Why choose a date other than November 30 or December 1, 1997 - the date that the Hospital Restructuring Committee specified for the final transfer of assets and funding to St. Joseph's? That is the date that was prescribed by the Hospital Restructuring Commission, and that is the date to which the WCA and St. Joseph's were working to complete the transfer. Why choose an earlier date - particularly when doing so might inhibit the exercise of employee rights?

81. In this regard, it is interesting to note a October/November communication from Parkwood to its employees, which includes this update:

The Women's Christian Association announced a further delay October 31 in the transfer of Parkwood Hospital to St. Joseph's Health Centre. The delay is the result of outstanding matters still to be resolved around the issue of compensation to be paid to the WCA for its assets.

The Ministry of Health again asked the Health Services Restructuring Commission for an extension of the transfer date to November 30, 1997. The Commission granted the Ministry's request.

Similarly, a December 1997 communication to employees (and others) from the President and CEO of Parkwood begins:

On November 30, 1997 Parkwood Hospital will join the St. Joseph's Health Centre family, combining the rich history of two organizations with a strong tradition of caring in London. Through it new representation on the board of directors of the St. Joseph's Health Centre, the Women's Christian Association will continue to have a voice and care of Parkwood, and to extend beyond Parkwood, its particular expertise in caring for the elderly, the disabled and the dying.

82. The expectation of the parties - communicated to employees - is that the transfer date would be November 30, 1997. Why should the Board pick any other "changeover date" under section 9(3)?

83. If section 9 applies at all, there is a strong case to be made for fixing the changeover date as at December 1, 1997 - the point at which St. Joseph's had acquired the assets and funding for Parkwood. But in my view, there is no case at all for choosing a changeover date after October 29, 1997 but prior to November 21, 1997, which might set up a barrier to the employees choosing whether they wish to be represented by the SEIU or the CHCW.

84. Both Bill 7 and Bill 136 recognize the importance of the trade union being "the freely-designated representative of employees"; and I do not think that this value should be discounted or overridden, unless to do otherwise would frustrate the processes or purposes set out in Bill 136. And here it would not. If the CHCW is successful, it will simply stand in the shoes of the SEHJ, representing the bargaining units at Parkwood that were formerly represented by the SEIU. These bargaining units will remain part of the mix in any future restructuring exercise, just as they would if the SEIU were to remain the employees' bargaining agent.

85. To reiterate: a successful certification application merely substitutes the CHCW for the SEIU in respect of the established bargaining units at Parkwood now represented by the SEIU - which is to say, merely adds a new bargaining agent to the scene as the representative of employees. It does not change the existing bargaining structure, and does not prevent a restructuring from going forward, just as before, with whatever resort to Bill 136 seems necessary. Furthermore, the CHCW has already agreed to be bound by any understandings respecting the bargaining structure formerly concluded with the SEIU. A successful certification application by the CHCW will not change those understandings at all.

86. Accordingly, the fundamental problem with the discretionary application of Bill 136 (i.e. pursuant to section 9(1)) is that, at this point, there is simply no reason for it. The situation does not display the "mischief' which Bill 136 was designed to remedy. Assuming for the moment that the "rationalization" of hospital services is (or was as of November 21, 1997) sufficiently far advanced to fit within section 9(6) [the SEIU says it was, the CHCW says it was not], the material simply does not demonstrate any "restructuring problem" at all at this point. The SEIU had agreed with St. Joseph's -albeit informally (see below) - to preserve the existing bargaining unit pattern at Parkwood, as Parkwood was added to the constellation of institutions run by St. Joseph's, and the results of the certification application will not change that.

87. Whether this bargaining unit pattern should remain in the long run, is perhaps an open question. But there was no resort to Bill 136 necessary or contemplated at any time prior to the certification application, nor does the certification application, in itself, change the bargaining unit perimeters at Parkwood or St. Joseph's. All that will happen is that Parkwood will 'join the St. Joseph's Health Centre Family" [to use the phrase from the President's communique] bringing with it two bargaining units represented by the CHCW rather than two bargaining units represented by the SEIU.

88. There is, therefore, no good reason to apply section 9(1) (and thus Bill 136) at this time, and even less reason to "back-date" the "changeover date", so as to raise a potential barrier to the exercise of employee rights.

89. Counsel for St. Joseph's expressed concern that if a "new player" is added to the collective bargaining mix, it may be more difficult to achieve the kind of overall agreement which would minimize litigation, and facilitate the integration of Parkwood into the St. Joseph's organization. Counsel notes -correctly I think - that there is no love lost between the CHCW and the SEIU; and that the SEIU remains the dominant force in the St. Joseph's organization. Counsel suggests that one can reasonably anticipate some friction between these two union rivals, who may use the tactical tools available to them to advance their own position, to the detriment of the orderly absorption of Parkwood. That, after all, is what the SEIU is seeking to do with its Bill 136 application and its novel request to back-date the changeover date so as to derail the CHCW's certification application.

90. I do not minimize this very practical concern. However, there are several answers to it.

91. First of all, as I have already noted, the CHCW's certification application will not disturb the pre-existing bargaining structure, which the SEIU and St. Joseph's were content to live with; moreover, the CHCW is not seeking to repudiate any settled understandings that St. Joseph's had with the SEIU. On the contrary. The CHCW is prepared to abide by the SEIU's agreement to maintain the bargaining unit status quo. There is no current dispute between the parties over the "rationalization" of the bargaining structure.

92. Secondly, if there is a failure to agree on one point or another, Bill 136 provides ample tools to address that situation. If there is a deadlock - or even serious friction - it is open to an interested party to apply to the Board under Bill 136 for an appropriate interim or final order.

93. Finally, I doubt that counsel's proposed solution - keeping the SEIU in place, perhaps for years - is a recipe for harmony. That solution entails locking employees into a bargaining agency relationship that they may not want; and I doubt that that will facilitate Parkwood's smooth absorption into the St. Joseph's organization. For the fact is: employees at Parkwood have already voted for or against the SEIU, and I doubt that orderly labour relations will be furthered by a formula which discounts their wishes and destroys their ballots.

94. So in all the circumstances, I do not think that this is an appropriate case for the Board to exercise its discretion under section 9(1) to make Bill 136 apply in the way suggested by the SEIU.

95. It is also worth noting (as the parties did in the course of argument), that the application of Bill 136 may have quite unintended consequences. For example: in October 1997 (i.e. prior to the proclamation of Bill 136) St. Joseph's received an arbitration Award which it has implemented, but which has not yet been transformed into a formal collective agreement. The parties did this in good faith and for sound labour relations reasons. Yet the status of that Award is somewhat ambiguous if Bill 136 is made to apply.

96. No one has any appetite to resile from this Award, which results from an arbitration proceeding that was not aborted by section 18(5) of Bill 136, and which replaces the terms of a collective agreement that expired in 1995. The employees affected by that Award have been expecting a revision of their conditions of employment for three years, and no one sees any purpose in shattering those expectations. However, the fixing of a "changeover date" for the purposes of Bill 136 restructur­ing, may also have the effect, as a matter of law, of resurrecting the old, long-expired collective agreement, for the purposes of Bill 136 (but perhaps not for other legislative purposes - see section 15(2) of Bill 136). This poses a legal and practical conundrum of uncertain proportions in circumstances where, I repeat, there is really no "Bill 136 problem" at all - at least not yet.

97. In my view, therefore, there is no good reason for fixing a "changeover date" and engaging in the Bill 136 exercise at this stage, there are good reasons for not doing so, and there are no reasons at all for fixing a changeover date before the significant restructuring event that occurred on November 30, 1997.

98. However, suppose that Bill 136 were made to apply, either because the Board exercised its discretion under section 9(1) of Bill 136, or because the Board was able to pinpoint an "amalgamation of two or more hospital corporations" occurring during the transition period (i.e. between October 29, 1997 and December 31, 2001). In either event, it seems to me that the changeover date (flowing from statute or selected the Board) would, on the material before me, be November 30/December 1, 1977 -the actual transfer date, the date towards which St. Joseph's and the WCA have been working for many months, and the date that they announced to the employees of the two institutions. What effect would that have on the processing of the CHCW's certification application?

99. This scenario raises the application of section 28 of Bill 136 - which is entitled "Restriction on certification applications" and is the only provision which deals expressly with a potential bar to an otherwise timely certification application.

100. It is common ground that section 28(2) can have no application, because it applies only to "non-union employees" - i.e. employees of a successor employer who are not members of a bargaining unit as of November 25, 1997, when the SEIU filed its Bill 136 application. Leaving aside, for now, whether St. Joseph's can be described as a "successor employer" under Bill 136 as of November 25, 1997 (which entails a finding that either section 8 or section 9 apply to make it so) it is evident that the employees of Parkwood are currently members of a bargaining unit represented by SEIU, so that section 28(2) cannot apply.

101. Section 28(3)or (4) might apply "if an order under section 22 is requested" - as it was on November 25. But under section 28(3) that bar begins "when the [Bill 136] order is requested" – which is November 25, 1997. Here, the CHCW's application for certification was launched on November 21, 1997, before the order was requested, and thus before the 28(3) bar is triggered. Accordingly, I do not think that section 28(3) creates any obstacle.

102. Section 28(4) is a little more complicated, because it refers back to section 20, which has its own legal intricacies.

103. Section 20 of Bill 136 describes the process by which institutional parties (or some of them) may agree on a new bargaining unit configuration in the new organizational setting. Once again, it requires that there to be a "successor employer" under Bill 136, which means that Bill 136 must apply or be made to apply under section 9(1). However, quite apart from that, such agreement can only be concluded "on or after the changeover date" - which, in the instant case (either on a reading of the statute or through the exercise of the Board's discretion) would not be before December 1, 1997 at the earliest. Any understanding or agreement prior to the changeover date is of no force and effect; or, to put it more accurately, does not fit within section 20(1), unless formally confirmed "on or after the changeover date".

104. What Bill 136 contemplates is that after the beginning of the transition period on October 29, 1997, and after the "changeover date" triggered by the restructuring event, the parties will sit down and try to work out the appropriate bargaining structure in the new institutional setting. The informal understanding in this case to "preserve the status quo" does not meet those requirements.

105. In addition, pursuant to section 20(7) of Bill 136, "an agreement does not come into effect until it is executed by the employer and every bargaining agent that is a party to the agreement". In my view, that means that there must be a formal document "executed" by the parties. It is not enough that there is some informal understanding that the bargaining unit status quo will be maintained, as the restructuring process unfolds. The parties are obliged to formalize and sign their agreement.

106. I am reinforced in that view by the parallel language of section 21(2), concerning the companion agreement respecting the identity of the bargaining agent. That agreement, too, must be formally executed, with a copy for the successor employer.

107. It seems to me therefore that what the statute requires is an instrument in writing that is "executed" by the parties. And there is no such document in this case. All that we have here is an informal understanding that the bargaining pattern will remain in place for now. That is something that may well be sensible and is quite understandable when all of the units are represented by the SEW. However, it is not the kind of "agreement" contemplated by Bill 136 (and necessary to raise a section 28(4) bar).

108. The SEIU submits that the word "executed" is elastic enough so as to encompass an unwritten understanding upon which the parties are acting. Counsel notes that pursuant to section 20(8), an agreement under section 20(4) to maintain the status quo can be in effect, even though there is no related agreement under section 21 or related Board order under section 23. In this respect, he says, the kind of status quo agreement contemplated by section 20(4) need not meet the same requirements as the broader multi-party agreements on the bargaining unit contemplated by sections 20(1) or 20(2).

109. However, in my view, the use of the term "executed" in section 20(7) contemplates a formal document, not some informal, unwritten understanding. Nor is this a purposeless formality. Under Bill 136 a "section 20 agreement" binds the Board and affects both employee and third-party rights; and in that context, I do not think it is inappropriate to look for a written instrument. On the contrary. Policy considerations support the inference that, in my view, already flows from the way in which section 20(7) is framed. The scheme of the Act (for example, the application of section 28(4)) requires a clearly defined and indisputable starting point, so that everyone will know where they stand. A "20(4) agreement" has to be reduced to writing and executed by the parties.

110. In the instant case, there is no agreement executed between the SEIU and an employer defining the bargaining unit structure which will prevail for Parkwood and St. Joseph's if a restructuring event were found to have occurred. Accordingly, for this reason, too, (and even if Bill 136 applies) I do not think that section 28(4) stands in the way of the certification application filed by the CHCW on November 21, 1997.

THE NEXT STEP TO BE TAKEN IN PROCESSING THE CERTIFICATION APPLICATION.

111. For the foregoing reasons, I am satisfied that however one approaches the interplay between the Labour Relations Act and the various provisions of Bill 136, the CHCW's certification application should proceed.

112. In my view, there are neither legal nor policy reasons for derailing that application and denying employees the opportunity to change their bargaining agent if that is their wish; moreover, this is so however one considers the various options under Bill 136, or whether the matter simply proceeds under the Labour Relations Act (leaving any real restructuring issues that surface, to be sorted out later)

113. That said, having heard the parties' representations, I am also satisfied that the employees at McCormick and Parkwood should be treated separately for "appropriate bargaining unit purposes" under section 9 of the Labour Relations Act. Whatever may have been the case before, events have separated the interests of the employees in each of these institutions, so that it is appropriate for them to be treated as separate bargaining units, and have their ballots counted separately.

114. To this extent, the Board's normal approach to bargaining unit determination under section 9 of the Labour Relations Act should be modified, to take into account the new labour relations reality, where the McCormick Home and its employees will continue with the WCA and under the Labour Relations Act alone, while Parkwood will find its way into the St. Joseph's organization, and Bill 136 may apply. The transfer - actual or imminent - requires that McCormick and Parkwood be treated separately. McCormick and Parkwood employees should be in two different bargaining units (which may be the result of a "successorship" anyway).

115. With this in mind, the Board directs that the ballots be counted in a voting constituency comprising all service employees working for the WCA at the McCormick Home for the Aged.

116. The Board further directs that the ballots be counted for the two groupings of employees at Parkwood who are currently represented by the SEIU (i.e. the RPNs; and the rest of the service employees, excluding RPNs).

117. For the moment, it is sufficient to count the ballots. It is unnecessary to finalize the bargaining unit descriptions at Parkwood, nor consider whether St. Joseph's is now a "successor employer" under section 69 of the Labour Relations Act, or under one or other provisions of Bill 136 (whatever may have been the case prior to December 1, 1997). The precise identity of the employer can be sorted out later if there is any disagreement about that.

118. If the raiding union is successful in one or other of the groupings described above, the certification application can proceed, and any outstanding issues can be resolved. Alternatively, if the SEIU is successful in one or more of those groupings, the certification application can be dismissed insofar as it applies to that grouping, and a one-year bar will be imposed pursuant to section 10 of the Labour Relations Act.

119. The matter is remitted to the Manager of Field Services so that the ballots can be counted.

120. Such count must occur forthwith.

121. I will remain seized in the event that the parties are unable to resolve any outstanding issues, in accordance with the observations set out above.