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-23CZ) Hearing Date of award ­.. - WATERLOO Nov .24 ,1984 .

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IN THE MATTER OF AN ARBITRATION HEARINGI

BET WEE N :.

WATERLOO REGIONAL POLICE ASSOCIATION

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(Hereinafter referred to as the "Association")I

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WATERLOO REGIONAL BOARD OF COMMISSIONERS OFI

POLICE

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I SOLE ARBITRATOR: Richard H. McLaren

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COUNSEL ON BEHALF OFI THE ASSOCIATION: R. Van Dalen

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COUNSEL FOR THE BOARD: E. L. MooreI

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A HEARING IN RELATION TO THIS MATTER WAS HELD AT WATERLOO, ONTARIOON SEPTEMBER 28TH, 1984.

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AWARD

Following the Notice of Intention to Bargain the parties

met to negotiate a new contract on April 2nd, 1984. It was not

until May 10th that briefs were exchanged and preliminary

discussions held between the parties. The total extent of the

negotiations between the parties entailed three short meetings.

Two were held in May with a bargaining session on June 26th after

which these binding arbi tration proceedings under the Police Act

R.S.O. 1980, c. 381 were commenced.

The hearing in connection with this interest arbitration

was held at Waterloo, On tar io on September 28th, 1984. At that

time the parties agreed the arbitrator had jurisdiction to

determine the matter. There were no preliminary objections as to

proceeding at that time.

There are a number of issues remaining in dispute. They

are:

Salaries; Established Complement, Acting Ranks;

Court-Time Pay; Hours of Work; Statutory Holidays; Association

Meetings; Vacations with Pay; Exemption from Foot Patrol Duty;

Layoff and the Complaint and Grievance Procedure. Each issue is

dealt with under separate heading below.I

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SALARIES - Article 4.01

'The Association is requesting a 6.5 percent increase

across the Board for salaries. The Board has offered a 5 percent

increase across the Board.

Both negotiated and arbitrated wage rates in 1984 for

police have clustered around the 5 percent mark. The Association

puts no compelling case forward for an increase which ought to be

above that rate. Negotiated settlements for 1984 with the City of

London, the Ontario Provincial Police, the Hamilton-Wentworth

Police and a number of smaller police associations have resulted

in settlements at or below 5 percent. It is determined that there

is no justification for .an increase in salaries in the case of the

Waterloo Regional Police of greater than 5 percent. It is ordered

that a 5 percent across the Board increase be applied for the 1984

contract.

There is a related issue under article 4.01 involving

salaries. The Association requests that officers assigned to the

youth bureau be included in article 4.01. The inclusion would

qualify them for the bonus pay that is provided for other officers

who work in the plain clothes divisions.

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In the mid-seventies as a result of collective bargaining

the former juvenile officers (now known as youth officers) were

removed from the scope of article 4.01. The request to reinsert

them in the article is based on the desire of the Association to

recognize the investigative work which they perform.

Considerable viva voce evidence was called on the point.

That evidence reveals that in substantial measure the youth

officers do the same work as detectives except for the fact that

the age of the offenders is younger. The forthcoming

implementation of the Youth Offenders Act in April of 1985 will

enhance the comparability of the work.

The data provided by the Board indicates that the

addition of the youth bureau to article 4.01 would affect 13

officers. In 1984 it would cost $28,821.00 for a total

compensation increase of .18 percent.

The distinction between the plain clothes constables and

the youth bureau is at present obscure. It will tend to be

obliterated in the near future with the introduction of the new

youth legislation. In recogni tion of these facts it is ordered

that the request of the Association be granted.

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ESTABLISHED COMPLEMENT, ACTING RANKS - Article 6.02

The Board requests that arlticle 6.02 be redrafted to

limit its operation. A redrafted article would limit acting rank

pay to those who make immediate decisions. Those who do

housekeeping duties during the absence of more senior officers

would not obtaip benefits of acting pay at the higher rank.

It is a widely recognized principle that when an employee

steps into another employees job which is paid at a higher rate;

the substitute employee receives the higher rate of pay while

doing the job. For this reason the request of the Board is

rejected. There is to be no change in,article 6.02

New Article 6.03

The Association requests the insertion of a new provision

dealing with the calculation of pay where an officer is relieving

a more senior officer because of the absence of that officer. It

is the desire of the Association that such payment be applied for

the whole day for those officers who fill-in on an acting basis

for only part of the day.

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It is the argument of the Association that the acting

rank's responsibility does not stop ab the overlap of shifts. The

responsibility continues but the acting pay ceases. There is some

continuing effect when the individujl returns to perform normal

duties. However, it does not seem to justify the additional pay

associated with the acting rank. Whln the responsibility .ceases

the pay should also end. The request of the Association is denied.

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COURT TIME PAY - Article 10.01

It is the submission of th1 Association that the time

paid to a member for appearance in Court ought to be changed from

the current four hours at straight tile to three hours at time and

one-half. The effect is to change the provisions of the

Collective Agreement to 4 1/2 hours 10f straight time versus the

present four hours.

It -is the position of the Association that Court

l .hours constltu es burden

disruption to the private life of members. It is something which

is unique to the police occupation ln being required to forego

leisure hours to satisfy the requirements of their vocation.

appearance on off-duty t a maJor and

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It appears to the arbitratbr that this provision has

worked adequately between the parties. It has caused no major

difficulties which have been in the brief of theident~fied

Association. The argument must be that 3 hours at time and one

half equalling 4 1/2 hours of straight time is consistent with a

large number of other police COllelctive Agreements. This is

demonstrated in the data provided on page 82 of the Association's

brief. For this reason the of the Association isrequ~st

accepted. Article 10.01 should be altered to read that officers

and cadets attending Court on off hours will recei ve a minimum

credit of 3 hours at time and one halfl

Article 10.03

The second aspect of the cdurt time issue between the

parties is associated with article 10.03. Article 10.03 provides

that an officer who is required to attend Court during annualI

leave be paid 16 hours Court-time for any day in which he appears

to do it. It is the request of the As~ociation to add to this

provision a reference to days off prior to or immediately after

annual vacation. In effect the thrust is to treat those days as

being part of the annual leave for fhe purposes of calculatingcompensation when attending court on those days. This request is

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being prompted by the implementation of the. compressed work week.

Prior to its introduction all annual leave was signed by the week

based on a Sunday to Saturday period. The compressed work week

requires that officers take off the full working block of time.

They cannot I therefore, protect themselves against Court

appearances immediately prior to or f6110wing vacations.

The submission of the Board is that the problem rarely

arises and is not one which ought to be dealt with by the

arbitrator.

The Board has also made a request in respect of Article

10.03 that the payment for Court tim~ during annual leave be

restricted to the first day wi th subsequent days to be paid at

straight time. The thrust of that argument is to the effect that

a major disruption occurs on the filrst day and subsequent days

ought to be simply treated as pay at straight time.

The arbitrator finds that the article has worked well

between the parties and there is no significant reason for a

change. The request of both the Association and the Board in

connection with article 10.03 are rejected. It is to remain

unchanged.

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HOURS OF WORK - Article 12.01

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The present hours of work provision provides that the

I work week is to consist of 5 days at 40 hours per week. Days of f

are to be granted consecutively except in the case of an emergency.I

The Association proposes that there be only one shiftI

change per fortnight. The arbitrator notes that such a request is

I not really a change of article 12.01 but an addition to it. There

was considerable viva voce evidence on this particular matter. ItI

reveals that members working in the detective, identification and

youth bureaus are required to change shifts as often as four timesI

in a two week period. Frequently these officers are required to

I come back on shi ft following only eight hours of time off. The

evidence of the expert witness, Mr . J. C. Shearer, on behalf of

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the Association indicates that the nature of the shift aspect of

police work takes a toll in terms of personal fatigue and familyI

relations.

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A provision in the Collective Agreement which will

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encourage management to try to schedule in such a fashion as to

prevent these shi ft changes is desirable from both parties pointI

of view. The request of the Association will provide a financial

disincentive to deter such scheduling practices. The officersI

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and cadets should only have one shi ft change schedule per work

week aside from emergencies. Overtime rates shall be applied for

the additional shifts worked in a scheduled period. It is ordered

that the Association I s request be granted. The two sentences to

be added to the existing wording of Article 12.01 should read:

"Officers and Cadets shall only have one shiftchange scheduled per fortnight.

Due the the exigencies of the service, shouldmore shift changes be required, overtime rateshall be applied for the following shiftworked."

STATUTORY HOLIDAYS - New Provision to the Article 20.03

The Association requested that a new provision be

inserted in the Collecti ve Agreement dealing with the payment to

be received by an officer who is required to perform his duties on

a statutory holiday. The request is for premium rates on

statutory holidays.

The Association brief makes the point that most other

types of occupations provide for premium pay when an employee is

required to work on a statutory holiday. In addition there are 68

police departments in the province in which there is premium pay

for working on a statutory holiday.

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It is the Board's position that under article 20.01 each

officer receives 12 days holiday per year in lieu of statutory

holidays. The typical pattern is a one week winter vacation and

seven days pay. The present scheduling is such that most officers

ordinarily work about 8 of the 12 statutory holidays in a year.

Pol ice of ficers have an occupation which requires that

there be 24 hour police coverage through out the 365 days of the

year. They knew the obligations of that occupation at the time of

becoming a police officer. It is, therefore, somewhat unrealistic

to cite that others get premi urn pay for working on statutory

holidays. Others have an expectation of having statutory holidays

off. Police from the time of entering' the occupation never had

such an expectation.

The cost of implementing such a scheme is in the vicinity

of $180,000.00 representing a total compensation cost of

approximately 1.4 percent. Such a request would be a significant

addi tion to the salary and related increases already awarded by

this award. There is no justification for the change. The

request of the Association is rejected.

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ASSOCIATION MEETINGS - Article 21.01

It is the request of the Board that article 21.01 be

redrafted so as to make it clear that members cannot reschedule

days off which happen to occur during a convention. The

Association in its rebuttal makes a request that the provision be

amended so that each member be permitted to have two days off one

prior to and one immediately after the convention.

The article has worked satisfactorily in the past. There

has been an administrative interpretation placed on the article

which has enabled it to work. The request of both parties is

rejected. Article 21.01 is to remain unchanged in the new

Collective Agreement.

VACATIONS WITH PAY - Article 27.01

It is the request of the Association that article 27.01

be changed to permi t a 5th week of vacation after 16 years of

service rather than the current 19 years of service. The primary

justification is based upon the need of older officers to find

relief from the rigors of law enforcement and the stress, strain

and fatigue associated with the work. Once again, the expert

testimony of Mr. Shearer is of assistance on this point.

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The request for an increase of vacation enti tlements is

consistent with a number of other police agreements in the

province as indicated in the Association's brief on page 101.

However, in reviewing data on the larger forces having regional

police departments the norm seems to be somewhat closer to that of

the present Collective Agreement.

It is the finding of the arbitrator that the reduction

ought to occur at 17 years which is consistent with the

Hamilton-Wentworth Regional Force as well as the Metropolitan

Toronto Force. Therefore, it is ordered that article 27.01 be

amended to permi t the 5th week of vacation enti tlement to occur

after 17 years of service.

EXEMPTION FROM FOOT PATROL DUTY - Article 28

The Board requests that the provision dealing with

assigning a member foot patrol duty be deleted. It is the

position of the Board that the number of officers who have some

disability is such that it is increasingly difficult to find light

duties for all of them.

One of the consequences of a layoff and seniority clause

is that layoff may occur due to lack of work. An employee who is

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unable or unwilling to do work may be laid off. Therefore, there

is no need for the deletion of Article 28. It does not

specifically deal with light duties. It precludes the assigning

of disabled members to foot patrol duty without their consent if

the individual has attained the 50th birthday. The request of the

Board is denied.

LAYOFF - A new provision to be Article 32.01

It is the request of the Association that a new provision

be inserted into the Collective Agreement providing for protection

of employment on the basis of seniority in the event that there is

a layoff. The recent layoffs at the City of Calgary and Edmonton

police force are cited as examples of the need for such a

protection.

In a recent decision by this arbitrator involving the

Sarnia Township police such a proposal was accepted by the

arbitrator as being an appropriate provision for insertion into a

Collective Agreement. In that case there was perhaps more

immediacy to the problem. The City of Sarnia is considering

expanding to include some of the Township thereby altering the

balance of policing between the Sarnia Township and the Ci ty of

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Sarnia police forces. Despite the absence of such a circumstance

here, the principle is a fundamental one of labour relations. ItI

is a clause which ought to be inserted in Collective Agreements.

This arbitrator in arriving at the decision to do so in the Sarnia

Township Award was concerned about the quality of the clause to be

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inserted. The arbitrator has a similar concern with the proposed

clause to be inserted at the suggestion of the Association. ItI

reads:

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"In the event of a layoff the last employeeI hired shall be the first laid off and the first

employee laid off shall be the first requestedto return."

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The Board takes the position that such a clause is in

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violation of Section 27 (b) of the Regulations to the Police Act.

The arbitrator has already dealt with that argument in the SarniaI

Township award. There is no need to repeat the arbitrator's views

in this Award.I

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The Board also made a number of submissions regarding the

quali ty of the clause proposed by the Association. It takes noI

account of availability to do the work, how long the laid off

employees are to remain employees and so on. The Board as an

alternate position proposes a clause to deal with layoff which is

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I more extensi ve in nature and deals with many gaps in the clause

proposed by the Association. It reads as follows:I

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"In the event of a layoff of one or morecadets or of one or more officers who havecompleted the probationary period prescribed by.thePolice Act, the following shall apply:

(a) The employee with the least seniorityshall be the first laid off provided that thesenior employee retained has the necessaryskills, qualifications, abilities andcompetence to perform the work available.

(b) Subject to (c) below employees on layoff,possessing the necessary skills,qualifications, abilities and competence toperform the work available, shall have right ofrecall for cadet or police officer jobopenings, as the case may be, occuring duringlayoff in reverse order of layoff.

(c) Right of recall shall cease six (6) monthsafter layoff and employment shall then ceasefor all purposes.

(d) The Board will not participate in the costof an employee's benefi ts after the month inwhich the employee is laid off, provided that,subject to the conditions of the carriers, theemployee may arrange to have benefits continuedat the employee Is expense until recall or theexpiry of the period mentioned in (c),whichever first occurs, and

(e) Seniority shall be calculated from date ofthe last hire."

The arbi trator accepts that the proposed clause by the

Association is inadequate. The clause proposed by the Board is a

more traditional form of seniority and lay off clause. The

Arbitrator orders that the clause be inserted as proposed and

drafted by the Board save for the fact that in provision (c)

dealing with the length of the right of recall that right shall

cease after 18 months rather than the 6 months proposed by the

Board.

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COMPLAINT AND GRIEVANCE PROCEDURE - Appendix "B"I

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It is the request of the Board that the provision dealing

with the launching of a grievance be added to by the followingI

proposal:I

I "No complaint or grievance will be entertainedwhich does not relate to an alleged violationof this agreement."

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It is the submission of the Board that the proposedI

addition to the agreement merely states the law as found in

I Sections 15, 29(2) and 33(1) of the Police Act.

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The Police Act governs relations between the Board and

I the Association and in part the contents of the Collective

Agreement. If the Board submission is correct then the additionalI

portion merely underscores the existing legal obligations. It is

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unnecessary to add it to the Collective Agreement. However, the

provision goes further. It restricts access to the grievanceI

procedure by enabling the Board to make jurisdictional argumentsI

to a grievance arbitrator. The argument being that there is no

I grievance because there is no alleged violation of a particular

provision of the agreement. The additional language may well goI

beyond both the law as stated in the Police Act and the thrust of

I the provision as proposed by the Board. Therefore, the request of

the Board is rejected.I

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CONCLUSION

In arriving at the foregoing determinations the

arbitrator has had regard to the employer's ability to pay and the

total impact of the cost associated with this award as required to

be done under the provisions of the Public Sector Prices and

Compensation Act, (1983 Ont.). ~e provisions of the previous

Collective Agreement are to be amended and changed in accordance

with the terms of this award. The parties are to enter into a new

Collective Agreement in accordance with this award immediately

upon receipt of it.

The arbitrator retains jurisdiction to make any

determinations as to the implementation of this award should any

dispute arise between the parties.

iiDated at London, Ontario this A 1f day of November, 1984.

Richard H. McLaren

Sole Arbitrator

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- .'. ,'" ".,t~; ;':jo"~~~ . ("" . . ",,-";,:.t:t(ej";;;;':...

.-f35) Hearing Date of award -

Michipicoten Nov.19,1984

IN THE MATTER OF THE POLICE ACT, R.S.O. 1970 c. 351 AS AMENDED

AND IN THE MATTER OF AN ARBITRATION

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BET WEE N:

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ARBITRATOR:

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APPEARING FOR THEBOARD:

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APPEARING FOR THEASSOCIATION:

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THE BOARD OF COMMISSIONERS OF POLICEFOR THE TOWNSHIP OF MICHIPICOTEN

(hereinafter called the "Board")

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THE MICHIPICOTEN TOWNSHIP POLICEASSOCIATION

(hereinafter called the "Association")

B. WelLlng

J. Lynett

F. Smith

A HEARING IN THIS MATTER WAS HELD IN SAULT STE. MARIE, ONTARIO,

ON 15 NOVEMBER, 1984

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3.

I have the power to impose a 1984 contract. The obvious

.starting point is to order (i) and (ii) above, which I do. I

trust that the parties, having essentially agreed to this format

and those terms, will have no difficulty in setting them out

in a formal agreement. Consequently, I see no purpose in my

reproducing those details in this award.

As to the rate of pay, there was substantial discussion

at the hearing concerning the particular working environment

in this Northern Ontario township. Comparisons were made with

a substantial number of other municipalities which already have

1984 contracts; further comparisons were made by focussing on

other Northern Ontario forces. This is not a rights hearing

and there seems little purpose in reciting the evidence and the

"arguments as if they had precedent value. The statistics tell

the story, and this Award will be but a small contribution to

those statistics. A pattern seems to have emerged throughout

Ontario in 1984 whereby 5% wage increases can be regarded as,

within the norm. These increases in the 5% range do not include

costed benefits, though presumably they have an impact on the

benefits packages and are locally costed by police administrators.

The Association's request for a 5% increase falls within the

1984 Ontario norm.

I impose a 5% wage increase as a term of the 1984

contract.

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5.

The present method of deducting sick days is asfollows. For the first 2 days off work due to illness,1 1/2 days per day are deducted from the officer'sbank. This is due to the officers working 12 hoursper day rather than eight. This first 2 days of illnessis not covered by'the Board's insurance carrier. Thepolice officers have experienced many difficultieswith this method of deduction and feel it is necessaryto amend the method of deduction to coincide with the12 hour shift schedule incorporated in the agreement.The police officers request an amendment under clause6(b) of the Income Protection Plan to read as per page15.

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The problem is created by the fact that all employees of the

municipality are covered by a common, insured sick leave plan.

It works fine on the credit side. On the debit side, its application

to police officers is complicated by the fact that they are the

only municipal employees who work 12 hour shifts.

From the Association's point of view, the administration

of the plan would operate equally for all municipal employees

if one day missed through sickness were debited as precisely

that - one day. It is not difficult to understand their point

of view. Individuals suffer from illness primarily on a daily

(or longer) basis, not by the hour. Thus, to the individual,

6 sick leave credits per year intuitively suggests that 6 days,

not 4, can be taken off without loss.

On the other hand, the Commissioners are likely to

view the problem of sick leave quite differently. Assuming,

for purposes of illustration, an average projected work week

of 40 hours for each municipal employee, one sick day by an employee

working 8 hour days may be seen from the employer's side as the

loss of 8/40 of a week. The corresponding work loss in the event

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I shall retain jurisdiction concerning that matter for only 60

I days following any decision that the Association has her bargaining

rights. That should give the parties adequate time to meet andI

settle this matter without my intervention.

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The final matter is the legislative requirement that

I I include some comment concerning the municipality's liability

to pay". I shall not reprodpce all the comments I made on thisI

issue in my Timmins award, dated Nov 84, but I remain convinced

that this is fundamentally a political issue and that my politicalI

opinions are of no interest to the parties. That is all I have

I to say on liability to pay".

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In closing, I congratulate the parties on what appears

to be a good working relationship which bodes well for the negotiationI

of a 1985 agreement. I shall retain jurisdiction until 15 Jan

I 85 on matters dealt with in this award (other than the civilian

employee's contract, dealt with above) against the unlikely eventI

that the parties have some difficulty in putting this award into

effect.I

DATED at London, Ontario, this 19th da I

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