Canadian Health Care Workers v. Quinte Healthcare Corporation, 2000 CanLII 12542

Canadian Health Care Workers v. Quinte Healthcare Corporation

File No.: 1418-99-R; 1419-99-R Date: January 10, 2000 Ontario Labour Relations Board

Between: Canadian Health Care Workers, Applicant v. Quinte Healthcare Corporation, Responding Party v. Service Employees International Union, Local 183, A.F.L., C.I.O., C.L.C., Intervenor.

Before: David A. McKee, Vice-Chair.

Appearances: E. Coetzee, Mike Groom, Joe Daignault for the applicant; Kees W. Kort, Alan Whyte, Janet Richardson, Linda Mitchell and Sophia Duguay for the responding party; Mark Wright and Linda Thayer for the intervenor.

DECISION OF THE BOARD

1These two files are applications for certification brought pursuant to the general provisions of the Labour Relations Act, 1995, S.O. 1995, ch. 1 (“the Act”). The applicant characterizes this as a “displacement application”. It seeks to represent, essentially, the employees currently represented by the Service Employees International Union, Local 183 (“SEIU”) employed by the Quinte Health Care Corporation (“QHC”) at its Trenton Memorial Hospital site (“the Trenton site”). The applicant asserts that these employees are represented by SEIU in two bargaining units: a full-time “service unit” and a part-time “service unit”. The SEIU and QHC take the position that this application is barred by section 28(4) of the Public Sector Labour Relations Transition Act, 1997, S.O. 1997, ch. 21, Schedule “B” (“PSLRTA”). In the alternative, they submit that the proper bargaining units are those composed of all employees represented by SEIU at all four hospital sites of the QHC, which they assert constitute one full-time and one part-time bargaining unit on the date of application.

2The applications were filed originally naming the Trenton Memorial Hospital as the responding party. While the applicant was appropriately cautious at the outset, by the time of final argument the applicant conceded that the responding party was the QHC, and that it was the employer of the employees it seeks to represent. This was without prejudice to its position of the proper boundaries of the bargaining units. Accordingly the name of the responding party in these applications is amended to “Quinte Healthcare Corporation”.

The Facts

3Notwithstanding several days of evidence, the facts are, with one or two minor exceptions, not in dispute. The QHC is a hospital corporation that resulted from corporate amalgamation of three hospitals operating at four sites: the Trenton Memorial Hospital, the Belleville General Hospital, and the Prince Edward County Memorial Hospital. A merger was directed by the Health Services Restructuring Committee in a report entitled “Hastings and Prince Edward Counties Health Services Restructuring Report” dated February 1998. The corporate amalgamation took place on November 26, 1998. The practical process of merging the operations and staff of the four sites continues to this day.

4One of the first areas addressed by QHC was a rationalization of bargaining units and collective agreements. It properly looked to the PSLRTA as the legislation governing their activities. QHC assigned certain members of management to pursue the issue of bargaining unit structure with its various unions, specifically the Ontario Nurses Association (“ONA”), SEIU, SEIU Local 633 (“Local 633”) and the Ontario Public Service Employees Union (“OPSEU”). Agreements were concluded with each of them: ONA on June 23, 1999, SEIU on August 9, 1999 and jointly with OPSEU and Local 633 on July 6,1999.

5Originally, QHC wanted single bargaining units represented by each of the bargaining agents. By May of 1999 it had concluded that it would not be able to maintain that position in a disputed application before the Board and made a proposal to each of the unions which envisioned separate full-time and part-time bargaining units covering all geographic locations. QHC’s first proposal to SEIU (along with Local 633) was made May 17, 1999. On June 2, 1999 counsel for QHC wrote SEIU asking for a reply to his May 17 letter. Linda Thayer, a business representative of SEIU, did finally call counsel for QHC with her response. Counsel for QHC sent a draft agreement on July 9, 1999. This agreement still proposed a single bargaining unit. On July 19 SEIU wrote insisting on two bargaining units. QHC decided not to push the issue.

6Linda Mitchell, Director of Human Resources for QHC, was in charge of negotiations with SEIU. She dealt with Linda Thayer. On August 6, 1999 Mitchell and Thayer spoke about the proposed agreement which they had been discussing. Ms. Thayer did not have a copy of an agreement in front of her. The general principles were, however, agreed upon by the two parties. Ms. Mitchell’s evidence was: “When I spoke to Linda [Thayer] on Friday we knew we were in agreement”. Ms. Mitchell called counsel and instructed him to send the agreement to Ms. Thayer. This was delivered to her office by courier on August 6, with a covering letter which stated:

“Thank you for your recent correspondence. QHC is prepared to maintain the separation between full-time and part-time bargaining units.

Since it appears that we have reached agreement we now enclose four original copies of the agreement. We would ask that you attend to having the document signed by the duly authorized signing officers of Local 183 and return the documents to my attention”.

7This document (the “August 9 Agreement”) was in fact received by Ms. Thayer on the morning of August 9. She executed it, as did Bill Koomen, also of SEIU. She erroneously dated it August 6, 1999 (which was in fact the date on the covering letter which had been sitting on her desk since Friday). She met with Linda Mitchell later that morning. The meeting had been called to deal with another subject. There was very little discussion about the agreement. Mitchell signed it in Thayer’s presence. Since QHC had previously notified SEIU that two signatures were required, Ms. Thayer left “all the copies” (she did not know the exact number) with Ms. Mitchell. Her evidence was “I said the union had signed, the employer had to sign it and then take the copies back to Mr. Kort’s office”. In fact, later that day Ms. Mitchell had the document executed by Janet Richardson, Vice-President of Human Resources for QHC, and delivered it to Mr. Kort’s office by the end of the day. Mr. Kort acted as counsel to QHC throughout.

8Certain other events transpired around this time. The ONA agreement was signed June 23, 1999. It too provided for a bargaining unit structure of two bargaining units, one full-time and one part-time. QHC made an application to the Ontario Labour Relations Board concerning the “paramedical employee unit”. An agreement disposing of that application was signed by OPSEU, QHC, SEIU and 633 on July 6, 1999. This agreement provided for a representation vote between OPSEU and 633.

9On June 11 QHC, ONA, SEIU, Local 633, and OPSEU entered into an agreement to recommend the ratification of a document entitled “Framework Agreement – Human Resources Labour Adjustment Plan” (the “Framework Agreement”) to their principals. The substance and effect of this document is dealt with below, but in general terms it dealt with a number of issues arising from the restructuring of QHC. This agreement required ratification by the parties. Final ratification did not take place until August 25, 1999 when it was ratified by QHC.

10Finally, QHC and its predecessors were engaged in an arbitration to settle a collective agreement with SEIU and Local 633 under the Hospital Labour Disputes Arbitration Act, R.S.O. 1990, ch. H-14, as amended (“HLDAA”). A number of hospitals, including QHC and its predecessors, and many locals of two unions, the Service Employees International Union and the Canadian Union of Public Employees, were parties to a centralized arbitration. Issues described as “local issues” had been settled previously. The “central issues”, and ultimately the collective agreement, were settled by a decision of a board of arbitration chaired by the Honorable George Adams, Q.C. The board of arbitration released its decision on June 28, 1999. This decision created a collective agreement and provided for a six-year term of that agreement, most of it retroactive, expiring October 10, 2001.

11These applications for certification were filed August 11, 1999. The bargaining units sought are, essentially, composed of all of the persons represented by SEIU employed by QHC at the Trenton Memorial Hospital in the full-time unit and the part-time unit. Whether this constitutes two separate bargaining units, or whether they are parts of larger bargaining units is an issue dealt with below.

Legal Context

12The parties originally took positions disputing or asserting the application of various statutes. Some of these issues disappeared by the time the parties came to argue this issue.

13SEIU does not take the position that this application is untimely by virtue of section 10 of HLDAA. That Act was not referred to in argument.

14The applicant does not dispute that the amalgamation of the hospitals was an amalgamation as defined in section 8(1) of the PSLRTA, and that it occurred within the “transition period” defined by that Act. That is, PSLRTA is relevant to this application.

15All parties agree that the applications were otherwise “timely” under the Labour Relations Act, 1995, (see The Women’s Christian Association of London [1998] OLRB Rep. May 496 at paragraph 17). With respect to the appropriate bargaining unit, all parties agreed that since this is a displacement application, the applicant is obliged to apply for the bargaining units which were represented by SEIU on August 11, 1999. As indicated, it is a matter of some dispute between the parties as to whether it represented a full-time unit and a part-time unit at Trenton Memorial Hospital and four other units elsewhere, or whether it represented two bargaining units, one composed of all full-time service employees of QHC and one composed of all part-time service employees of QHC, employed at all four of QHC’s sites. If the bargaining units are composed only of employees at the Trenton site, the applicant likely has demonstrated that forty per cent of the persons in each of those units were members of the applicant on the application date. If the units encompass employees at all four sites, the applicant concedes that less than forty per cent of the persons in each of the bargaining units were members on the application date.

16The contentious issues are: (1) whether the application is barred by PSLRTA (which by virtue of section 39 of that Act applies despite any provision of the Labour Relations Act, 1995); and (2) what the bargaining units represented by SEIU on the date of application were.

Decision

17Since much of the argument focuses on the details of the August 9 Agreement, it is worth reproducing it in full. The agreement states:

IN THE MATTER OF THE

PUBLIC SECTOR LABOUR RELATIONS

TRANSITION ACT, 1997

A G R E E M E N T

B E T W E E N:

QUINTE HEALTHCARE CORPORATION

(“QHC”)

• and -

SERVICE EMPLOYEES UNION, LOCAL 183

(“Local 183”)

QHC and Local 183 agree as follows:

(1) QHC is the successor Employer to the predecessor Employers – The Board of Governors of the Belleville General Hospital, Prince Edward County Memorial Hospital and Trenton Memorial Hospital within the meaning of s.8(2) of the Public Sector Labour Relations Transition Act, 1997.

(2) November 26th, 1998 is the changeover date on which the amalgamation took place as contemplated by s.8(3) of the Public Sector Labour Relations Transition Act, 1997;

(3) Local 183 is the bargaining agent that represents all service workers employed at all of the predecessor Employers;

(4) The description of the full-time bargaining unit shall be as follows:

All employees of the Quinte Healthcare Corporation in the City of Belleville, County of Hastings, County of Prince Edward, and City of Quinte West save and except professional medical staff, registered and graduate nurses, paramedical employees, office and clerical employees, supervisors, managers and forepersons, persons above the rank of supervisor, manager and foreperson, chief engineer, stationery engineers, employees employed for not more than twenty-four (24) hours per week, and students employed during the school vacation period.

(5) The description of the part-time bargaining unit shall be as follows:

All employees employed for not more than twenty-four (24) hours per week of the Quinte Healthcare Corporation in the City of Belleville, County of Hastings, County of Prince Edward, and City of Quinte West save and except professional medical staff, registered and graduate nurses, paramedical employees, office and clerical employees, supervisors, managers and forepersons, persons above the rank of supervisor, manager and foreperson, chief engineer, stationery engineers, and students employed during the school vacation period.

(6) QHC and Local 183 agree that Local 183 shall be the bargaining agent for the two bargaining units described in paragraph 4 and 5 above.

(7) QHC and Local 183 acknowledge and agree that this agreement is made to establish the description of the bargaining unit and designate the bargaining agent pursuant to s.20 of the Public Sector Labour Relations Transition Act, 1997.

(8) QHC and Local 183 agree to meet forthwith after the signing of this agreement to determine which seniority provisions of the composite agreement will apply to employees in the bargaining unit in accordance with their obligations pursuant to s.25 of the Public Sector Labour Relations Transition Act, 1997.

(9) QHC and Local 183 agree that they will co-operate in any application to the Ontario Labour Relations Board necessary to give effect to this agreement or any matters arising out of this agreement which come within the jurisdiction of the Public Sector Labour Relations Transition Act, 1997.

Dated at Belleville this 6th day of Aug. 1999

18CHCW’s primary challenge to the August 9 Agreement is that it is not an agreement as defined in section 20(2) of the Act and therefore cannot serve as a bar to the application for certification pursuant to section 28(4). The relevant statutory provisions are as follows:

20. (1) On or after the changeover date, a successor employer and all of the bargaining agents that represent employees of the successor employer to whom the Labour Relations Act, 1995 applies may agree to change the number and description of the bargaining units in respect of which the bargaining agents have bargaining rights.

(2) Despite subsection (1), a successor employer and two or more but not all of the bargaining agents that represent employees of the successor employer to whom the Labour Relations Act, 1995 applies may agree to change the number and description of the bargaining units in respect of which they have bargaining rights if the agreement does not change or affect the description of any other bargaining unit and does not result in employees who were not in any bargaining unit being included in a bargaining unit.

(4) On or after the changeover date, the employer and a bargaining agent may agree not to change the description of the bargaining unit in respect of which the bargaining agent has bargaining rights.

28. (3) During the period beginning when the first 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.

19CHCW argues that this is not a section 20(2) agreement as there is only one “bargaining agent”, i.e. SEIU. As such, it cannot be “two or more…bargaining agents” and therefore cannot enter into an agreement under section 20(2). The other parties argue that in fact SEIU is six bargaining agents for the purpose of this agreement. That is, it is the bargaining agent in respect of six different bargaining units.

20CHCW’s argument is based on an assertion that a bargaining agent and a trade union are one and the same entity. For the purpose of section 20, it argues that SEIU is a single organization, i.e. a single trade union, and therefore may not be more than one bargaining agent.

21SEIU and QHC draw a distinction between SEIU as a trade union (since it is obviously a single trade union) and a bargaining agent (which they assert it is in six different capacities in respect of six different bargaining units at QHC). The Labour Relations Act, 1995 defines “trade union” thus:

"trade union" means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national, or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency.

22Further, QHC and SEIU argue that their interpretation of the Act comes more closely to fulfilling the purposes of the PSLRTA. Section 1 of the statute includes in its purposes:

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

To give effect to this purpose, section 20 provides for an agreement among the parties. The statute presumes that parties will behave in a proper and lawful fashion and gives them the authority to carry out the purposes of the statute without reference to any other approval mechanism. Only where the parties cannot agree or where the desired configuration affects employees who “were not in a bargaining unit” (note the statute does not say “were represented by a trade union”) must the parties make an application to the Ontario Labour Relations Board.

23The legislative policy rationale behind CHCW’s argument is difficult to discern. Sub-section 1 permits an employer and all bargaining agents to agree on a new bargaining unit configuration. Sub-section 2 allows two or more bargaining agents to do the same thing. Sub-section 3 allows a single bargaining agent to confirm an existing single bargaining unit. The CHCW suggests that the legislature deliberately chose not to allow a single trade union to consolidate its existing bargaining units. Counsel suggests that the rationale lies in a belief that a single trade union, with the successor employer’s assistance, might act to protect its own institutional interests in a manner detrimental to the interests of the employees it represents, but that two trade unions together would somehow introduce a level of fairness and rationality to the process. Given that section 20(4) allows one bargaining agent and an employer to preserve the bargaining agent’s institutional existence with respect to one unit, this rationale seems unlikely. Further, it is clear that QHC reached a similar agreement with ONA. On CHCW’s argument, had SEIU, ONA and QHC reaffirmed their separate agreements in a new and combined agreement among the two trade unions and QHC on August 10, 1999, such an agreement would constitute a section 20(2) agreement. This is to elevate form over substance to a degree which renders any legislative intent incomprehensible.

24This panel of the Board prefers the interpretation of section 20(2) suggested by SEIU and QHC. A bargaining agent must be a trade union, but a trade union need not be a bargaining agent. That is, a trade union exists as an organization before it acquires any bargaining rights. It may lose bargaining rights but continue to exist as an organization. It acts as a legal entity wholly separate from its existence as a bargaining agent in renting or owning offices, purchasing supplies, employing business agents, and retaining counsel. A bargaining agent, while it must be a trade union under the Labour Relations Act, 1995, is a bargaining agent solely and exclusively in its capacity as an agent of a bargaining unit of employees for the purpose of collective bargaining. If it loses bargaining rights for a unit of employees, it ceases to be a bargaining agent for that unit, even though the same trade union may continue to be a bargaining agent for the purposes of representing employees in other bargaining units for the purposes of collective bargaining.

25Neither the PSLRTA nor the Act defines the term “bargaining agent”. However, the PSLRTA uses the terms “bargaining agent” and “bargaining unit” in virtually every section. This is not surprising since one of the purposes of the statute is:

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. (section 1, paragraph 3)

That is, the statute does not deal with all trade unions, but only those who are bargaining agents with existing bargaining rights to represent employees in defined bargaining units affected by the restructuring of employers in the broader public sector. For instance, section 14(1), dealing with the situation on the changeover date defines the rights of a bargaining agent in respect of its bargaining rights for a defined bargaining unit. Section 17 highlights the distinction between trade unions and bargaining agents:

17. If, under this Act, a trade union is made the bargaining agent of the employees in a bargaining unit, the trade union shall be deemed to have been certified or chosen as such for the purposes of…the Labour Relations Act, 1995…

This mirrors section 10 of the Labour Relations Act, 1995 which provides:

10. (1) The Board shall certify a trade union as the bargaining agent of the employees in a bargaining unit that is determined by the Board to be appropriate for collective bargaining if more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union.

That is, the trade union acquires a particular capacity as a bargaining agent for a defined bargaining unit upon the issuance of a certificate.

26The only sensible way to read section 20(2) is to define the term “bargaining agent” as a trade union in its capacity as a bargaining agent for a bargaining unit. That is, each of the bargaining agents for two or more bargaining units may make an agreement governing the bargaining unit structure of two or more bargaining units, regardless of whether or not those bargaining agents are in fact one or more than one trade union. Accordingly, I find that the August 9 Agreement is an agreement as defined in section 20(2).

27CHCW had two further arguments, in the event that the Board determined that the August 9 Agreement was found to fall within section 20(2). First, CHCW asserts that the agreement was not “in effect” on August 11, 1999 as the final step in the completion of the contract, namely delivery to the SEIU, was not completed until the fully executed copy of the August 9 Agreement was received by SEIU on August 16, 1999. Counsel referred to a summary of the basic principles of acceptance of contract found in Waddam’s, The Law of Contracts, (3d) Canada Law Book 1993 at pg. 60:

As was shown above, a subjective mutual consensus is neither necessary nor sufficient for the creation of an enforceable contract. As a general rule, it is not enough for one to whom an offer is made to assent inwardly; the offeree must communicate acceptance to the offeror, or to someone authorized by the offeror to accept it.

Ordinarily, therefore, silence will not operate as an acceptance even though the offeree should prove an intention to accept. This is not a technicality, but part of the requirement of a bargain. No reasonable person, on receiving a proposal that looks for a reply, considers the bargaining concluded until the manifestation of an assent.

28CHCW’s argument runs as follows. All parties knew that two signatures were required to bind QHC to the August 9 agreement. When Thayer left on August 9, she had seen only one signature on behalf of the hospital and therefore the agreement was not binding. The second signature was affixed on August 9 but no call was made to SEIU to tell them of this fact, and no copy was delivered to them till August 16 when Mr. Kort’s letter enclosing the document was delivered by mail to SEIU. Therefore, it is argued, no “delivery” or even communication of acceptance by QHC to SEIU occurred before August 16 and therefore there was no binding agreement on August 11.

29Even assuming it is appropriate to apply common-law principles arising out of commercial contracts to statutory agreements dealing with bargaining rights (which are hardly proprietary or commercial commodities), this analysis is not necessarily valid. Mr. Kort’s letter dated August 6 refers to an agreement and puts forward an “offer” in the form of a blank document. SEIU “accepted” the offer by executing it and “delivering” it to Linda Mitchell on August 9. Ms. Mitchell signed it in confirming the acceptability of the hospital’s offer made by counsel on August 6. To use Waddam’s words, this was not a “proposal that looks for a reply”. What the position of the parties would have been if Ms. Richardson had refused to affix the second signature is purely speculative. Alternatively, Ms. Thayer specified that once the agreement had been executed by the hospital it was to be delivered to Mr. Kort. If indeed “delivery” to SEIU was a requirement of complete execution, QHC delivered it to the person identified by SEIU as the person to receive it. The fact that he did not deliver it to SEIU until later is irrelevant to this theory of delivery and acceptance.

30However, leaving aside the general principle of the appropriateness of applying this sort of analysis to collective or representational agreements, the statute itself sets out the formal requirements which must be accomplished before the agreement is effective:

20. (8) An agreement described in subsection (1) or (2) does not come into effect until the related agreement under section 21 or the related order under section 23 comes into effect.

21. (1) If an agreement is made under section 20, all of the bargaining agents that are parties to the agreement may agree upon which bargaining agent will represent each bargaining unit that results from the agreement.

(2) An agreement under this section does not come into effect until it is executed by every bargaining agent that is a party to the agreement and a copy of it is given to the successor employer.

Thus the statute sets out what is needed: full execution and receipt of a copy by the successor employer. This process was complete by the afternoon of August 9. The agreement was effective from that date.

31In the further alternative, CHCW argues that the August 9 agreement was not binding until the Framework Agreement was ratified on August 25. Both Ms. Mitchell and Ms. Thayer testified that the August 9 Agreement required no further ratification, but the Framework Agreement did. It was not fully ratified until August 25. Ms. Mitchell’s evidence was that the Framework Agreement was the “parent agreement” of the August 9 agreement, and further that the August 9 Agreement “flowed from it [the Framework Agreement]”. She was not asked to elaborate on that characterization and Ms. Thayer did not confirm it.

32Whatever Ms. Mitchell meant by that remark, it is clear from the face of the documents that they operate independently from one another. The August 9 Agreement does not refer to the Framework Agreement (which had been finalized two months earlier). The Framework Agreement itself provides as follows in Article 5:

Bargaining Unit Representation shall be determined by agreement between or amongst the affected Unions and the successor Hospital, or, failing agreement, by the Ontario Labour Relations Board…

Where Bill 136 does not apply, the following shall occur: …

33Clearly this agreement does not deal with section 20 agreements. It places those discussions and agreements entirely outside the process of the Framework Agreement. The August 9 Agreement was therefore effective regardless of whether or not the Framework Agreement was ratified.

34Finally, counsel for CHCW also argued, although somewhat less forcefully by the time of final argument, that SEIU and QHC had “cobbled together” the August 9 Agreement quickly in an attempt to block the CHCW’s application. Regardless of what legal theories could be posited from such a factual assertion, as a factual matter I do not find this to have been the case. SEIU knew of CHCW’s organizing in June. This had no effect on the leisurely pace of discussions and negotiations about the restructuring of bargaining units. The outline of the agreement had been discussed before June, and was similar to the ONA agreement, i.e., it was similar to the restructuring of other bargaining units. There is no evidence from any witness that knowledge of the CHCW organizing played any role at all in the negotiation and execution of the August 9 Agreement. Accordingly, there are no facts on which to attack the August 9 Agreement on the basis of employer support or any other ground.

35If the above analysis is wrong, and the August 9 Agreement is not a section 20 agreement, QHC and SEIU argue that it is nonetheless an effective agreement between an employer and a trade union which modifies the scope of various bargaining units. That is, independent of the PSLRTA, the parties to the six collective agreements were able any time to amend the bargaining unit to combine all full-time employees into one unit and all part-time employees into another unit. The Board has frequently said that the only item parties may not amend in a collective agreement (absent the Board’s consent) is the term of the agreement itself. Provided both parties agree, the employer and trade union may expand the scope of the bargaining unit: Ben Bruinsma, [1984] OLRB Rep. Nov. 1542, G & H Steel Service of Canada Ltd., [1964] OLRB Rep. May 670. They may shrink the bargaining unit: Gilbarco Canada, [1971] OLRB Rep. Mar. 155, Frito Lay, [1978] OLRB Rep. Sept. 831.

36Here, no issues arise with respect to the right of the SEIU to represent all employees affected by the change in bargaining unit boundaries. It was the lawful bargaining agent in respect of each and every bargaining unit. Accordingly, the combination of bargaining units was complete on August 9, 1999. Thus, when CHCW made its application on August 11, the only appropriate bargaining units were all full-time service employees of QHC at all four hospitals, and all part-time service employees of QHC at all four hospitals. In the circumstances of this case, the membership evidence of CWCH, as it itself acknowledged in argument, is well below the forty per cent required to make the application.

37Accordingly, this application must be dismissed. However, in the circumstances, no bar will be imposed. If the application is untimely because of the PSLRTA (although it would have been timely under the Act), there is no reason to impose a bar. The PSLRTA certainly does not prescribe one and no ballots have been counted. Accordingly, section 10(2) of the Act does not come into play and section 10(3) is inapplicable. If, on the other hand, the application is dismissed because the applicant failed to demonstrate that forty per cent of the bargaining unit were members of the applicant, and since QHC gave timely notice under section 8.1, section 8.1(5), para. 7 and section 10(4) mandate a similar dismissal of this application without a bar.

38For these reasons, these two applications are dismissed. The Registrar is directed to destroy the ballots cast in this application after thirty days from the date of this decision have passed.

“David A. McKee”

for the Board