~ -- ..",..~-.. n~I ~ORK 9S-00~tNON-OPAC Burkett, Kevin Feb. 24, 1995I

AWARD INTEREST - 1993 Uniform ContrdC:'I

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IN THE MATTER OF AN INTEREST ARBITRATION PURSUANT TO THE POLICE SERVICES ACf

BETWEEN: THE REGIONAL MUNICIPALITY OF YORK POLICE SERVICES BOARD

(The "Board")

AND: THE REGIONAL MUNICIPALITY OF YORK POLICE ASSOCIATION

(The" Association")

IN THE MAITER OF: UNIFORM COLLECTIVE AGREEMENT

- 1993 ­

BEFORE:

Kevin M. Burkett -Chair

APPEARANCES FOR THE BOARD:

S. Raymond - Counsel E.King - Member of the Board

M. Campite1li - Member of the Board

Supt. J. Girvan - Executive Officer to Chief of Police

Insp. G. Smyth -Officer in Charge of Staff Services

APPEARANCES FOR THE ASSOCIATION:

B. Chercover - Counsel S. Davis - Student at Law

P. Bailey -President F. Stojanovic - Vice President C. Dixon - Business Manager

A Hearing in this matter was held on January 24 and 25, 1995in Toronto, Ontario.

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I have been appointed as an arbitrator under the Police Act to adjudicate upon the

issues in dispute in respect of the 1993collective agreement between these parties. There is no

dispute with respect to my authority in this regard.

This is the first time in the twenty-four year history of this collective bargaining

relationship that the parties have found it necessary to submit to arbitration. Prior to this

round of bargaining these parties had always been able to resolve their differences. Although

the parties met to bargain on six occasions in the fall of 1994, they were able to resolve but a

single item. I am told that there is presently a lack of trust between the parties which. no doubt,

has contributed to the bargaining stalemate that has necessitated my appointment. Acollective

bargaining relationship is subject to a variety of ongoing stresses and strains, ranging from the

impact of economic dislocations to the undercurrents of personality conflict. It behooves those

in positions of authority on both sides to identify the current friction points with the objective

of putting this relationship on an open and businesslikefooting, consistent with prevailing

norms.

Having sa~d this, it must also be said that the Social Contract Act distorted the

bargaining process, thereby making it much more difficult than it otherwise would have been

to achieve a two-party settlement. Under the Social Contract Act compensation for those

earning morethan $30,000 per year is frozen from June 14, 1993 to March 31, 1996, with the

result that the union is prohibited by statute from bargaining improvements to the

compensation package. In the result the parties are limited in bargaining to language issues

and to indirect monetary issues. The scope for any trade-off between monetary and non­

monetary issues is lost, with the result that the non-monetary issues are more difficult to

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resolve. Apart altogether from the loss of direct linkage. the simple fact that there can be no

compensation improvements causes the non-monetary issues to take on a life of their own. In

these circumstances a bargaining agent is inclined to put additional non-monetary items on the

bargaining table and to be less flexible in respect of their resolution. than would otherwise be

the case. On the other hand. the risk to an employer of having to pay for a "take-away" item

is significantly reduced. An employer. therefore, is more inclined to table a greater number of

"take-away" items and to be less flexible in the resolution of these items than would otherwise

be the case. Not surprisingly, the dispute before me is marked, on the Association side, by a

raft of unresolved language and indirect monetary issues, some of which are of major

significance,and, on the employer side,by a raft of "take-away"items,some of which are also

of major significance. As noted, the parties were unable to bargain constructively with the

result that I am asked to shape a renewal collective agreement from the remnants of a collective

bargaining exercise distorted by the Social Contract Act.

The issues in dispute are captioned below:

ASSOCIATION PROPOSALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ISSUE1- RECOGNITION AND SCOPE

ISSUE2- CENTRAL SICK LEAVE BANK

ISSUE3- CALL-BACK

ISSUE4- HOURS OF WORK AND PREMIUM PAY

ISSUE5- SCHEDULE "D"

ISSUE6- ANNUAL VACATION

ISSUE7- COMPASSIONATE OR SPECIAL LEAVE

ISSUE8- PAID DUTY

ISSUE 9 - PROMOTIONAL PROCEDURES

ISSUE 10- LEGAL INDEMNIFICATION

ISSUE 11- LEGAL INDEMNIFICATION

ISSUE 12- LEGAL INDEMNIFICATION

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ISSUE 13 - TWO-OFFICERCARSISSUE 14- TRANSFERS

ISSUE 15- SCHEDULE "C"

ISSUE 15A- SE~JTORCONSTABLE PAY

ISSUE l5B - LOCKER SEARCHES

BOARD PROPOSALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . .

ISSUE 16- HOURS OF WORK AND PREMIUM PAY

ISSUE 17- HOURS OF WORK AND PREMIUM PAY

ISSUE 18- COURT TIME

ISSUE 19- PAID HOLIDAYS

ISSUE 20 - WORKERS' COMPENSATION

ISSUE 21 - SERVICE PAY

ISSUE 22 - SCHEDULE "B" -SICK LEAVE CREDITS

Whereas I must assess the merits of the various issues that are before me, I must do so

in light of the distortion to the bargaining process caused by the Social Contract Act and in the

knowledge that absent this distortion many of the issues before me would have been resolved

on the basis of creative compromises fashioned by the parties, or they would have been traded

off or otherwise withdrawn in the normal give and take of collective bargaining. I am not in

a position to know what these creative compromises might have been nor am I in a position to

know precisely which items would have been traded off or withdrawn. However, keeping in

mind that it has long been accepted that an interest arbitrator ought to endeavour to replicate

what can reasonably be anticipated from free collective bargaining I am not prepared to

consider each of the items that remain in dispute without regard to the context in which this

negotiation took place. It ismy intention to weighthe competing packages in the knowledge

that the individual items would have been more constructively dealt with in the context of

collectivebargaining unencumbered bythe SocialContract Act. In this regard, saveand except

for issues that can be dealt with in committee (about which I will have more to say) and issues

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in respect of which one or the other of the parties indicated some flexibility or there is an I

obvious compromise solution. it is my intention to limit my award to items (if any) that are I

supported by evidence of compelling, immediate need. In the context of Social Contract I

- bargaining the "demonstrated need" threshold requires not only that a party satisfy an I

arbitrator that an item is justified on the basis of collective bargaining nonns and/or the I

hardship or unworkability of the status quo, but also that the prejudice worked by delay I

outweighs the labour relations benefit of having the issue dealt with in the context of full and I

free collective bargaining. I

The Association has proposed that a number of issues be referred to committee with the I

arbitrator remaining seized for purposes of dealing with the committee recommendations. I

Committees serve a useful labour relations purpose. They allow the parties to share ideas. to I

work together in gathering information, and to gain an understanding ofth~ir respective points I

of view, thereby laying the groundwork for joint problem-solving and decision-making. These I

are benefits of committee activity that are particularly relevant if, as in this case, the I

relationship is strained. Constructive committee activity provides an opportunity to rebuild I a relationship. Having said this, I amnot prepared to remainseizedfor the purposes of dealing I with the committee recommendations. The better approach is to constitute the various

I committees and establish a reporting date which will allow the parties to consider their

I respective positions in the context of dealing with the full panoply of issues in bargaining that

I isunencumbered by the Social Contract. Specifically, Ihave been satisfied that the compressed

I work week issue, the issue of promotion procedure and the issue pertaining to the extent of

I two-officer patrol cars, are suitable for committee study.

I I have weighed the remaining issuesagainst the test of demonstrated need that applies

I in the context of the bargaining distortions caused by the SocialContract Act. Except for the

I issuesor sub-issues in respect of which some flexibility was indicated or in respect of which

I there isan obvious compromise, the application of the refmeddemonstrated need test compels

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me to maintain the status quo on all other issues. The Association's Call-Back and Scheduling

demands. which would significantly reduce scheduling flexibility under pain of economic

penalty, are not.supported by police sector collective bargaining norms. The:une can be said

about its extensive rewrite of the Legal Indemnification language. keeping in mind that. in

addition. there ha ve been no denials oflegal indemnification and, therefore, no grievances. The

same can be said about the Central Sick Leave Bank where there has been but a single

grievance and where the Association's extensive demands are not supported by police sector

coll~tive bargaining norms. The Association's proposed amendment to the Senior Constable

language also lacks the support of police sector collective bargaining norms. The pregnancy

leave demand of the Association is the subject matter of a Human Rights complaint and in the

context of Social Contract bargaining is better dealt with in that forum. Indeed, it is safe to say

that absent the bargaining constraintS imposed by the Social Contract Act this issue would

have been resolved on that basis. The proposed increase to the salaries paid to cadets, while

modest, is nevertheless unsupported by comparative data, The civilian members of this force

receivedno increase for 1993. The three p.m. to three a.m. shift that iris seeking to prohibit

is no longer being used. Finally, while I have considerable sympathy for the Association's

demand for control of the central sick leave bank, the status quo can be maintained, as with \

all of the foregoing issues, until this matter is dealt with in post Social Contract bargaining. \

The Board has made seven proposals. The Board's proposal that Call-Back be a \

\ guaranteed minimum instead of a guaranteed payment inaddition to overtime issupported by

\ a reviewoflarge police force agreements. However, it would have a significant impact (both \ in terms of scheduling flexibility and economic loss) at a time when the Association is \

constrained in terms of monetary gain and at a time when I have deferred its demand in this \

area. The Board has proposed major revisions to the Workers" Compensation language. \

Again, having regard to the stance Ihave taken with respect to the Association's demands and \

the constraints imposed by the Social Contract Act and in particular to the absence of

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compelling police sector support (except in the net pay issue), I am not prepared to award these

amendments. This is not to say that in other circumstances I would not have eliminated. as I

have elsewhere, the potential for a substantial increase in net annual pay (in excess of$1O.000)

while off work in receipt of Workers' Compensation. The Board's demand for the

grandfathering of Service Pay isbest left to be dealt with in the context of unrestricted collective

bargaining. The same can be said in respect of the Board's more contentious demands for

amendments to Schedule "B", Sick Leave Credits. The Board's demands for relief from

premium payments in respect of Court Time and Paid Holidays counter the Association's

demands for less scheduling flexibility which I have deferred. Furthermore, there is an 0bvious

inequity in granting these (and most other of the Board's proposals) at a time when the \

compensation paid to Association members is frozen. Finally, the Board's demand for the \

deletion of Article 9.5 (under which a member is deemed to have completed hisiher shift upon \

completion of four hours, thereby obviating the need for sick credit utilization for the second \

half of the shift) is not supported by a sufficient number of the large force agreements to have \

me act upon it at this time. \

Having regard to all of the foregoing I hereby award as follows:

A W ARll

The parties are directed to enter into a renewal collective agreement for the period

January 1, 1993to December 31, 1993that contains all of the terms and conditions of the

predecessor collective agreement save and exCeptthat it is amended to:

1. incorporate the new article 12.6(A)agreed between the parties;

2. amend article 26to provide that each member be suppliedwith a copy of the collective

agreement every third year.with amendments supplied in the interim period;

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3. amend Article 9.6 to read as follows;

Each member}s daJ~vdUly roster shall be posted six (6) weeks in advance of each !:J"hiftbut such dal~vduty roster shall be subject to

change depepding upon We exigencies of we service as qetennined by We Chief of Police whose dl:'icretionin this rC:3ardshall be exerci~ed reasonab{v.

4. amend Article 12.7 (Annual Vacations) hy adding the following note;

~: "Confined to his residence" status shall not be affected by attendance at an appointment with a physician or by reason of

prescribed rehabilitative werapy outside his/her residence.

5. amend Article 31 of the collective agreement (Legal Indemnification) to add a clause as

follows;

A member who becomes involved in a matter which may entitle him to legal indemmfication under this clause is entitled to receive funds from we Board for a retainer and/or for interim payment of legal costs as reasonably requested by the member}s counsel to a maximum of $2,500 provided the member undertakes to indemnify the Board for such funds advanced to him if the member is finally determined not to be eligiblefor indemnification in accordance with this Agreement.

6. add a new article (Locker Searches) to read;

A member or his chosen representative must be present during any inspection/search of that member~ locker that is carried out. without a search WaITant.

7. add new Articles I5.2(B) and I5.2(C) (Workers' Compensation) as follows;

152(1]) Men a member is injured in circumstances involving a third

party andelectsto takeaction againstthatparty, suchactionshall include a claimfor therecovery of all salaryand benefitspaid to him during the period of incapacity. This recovery shall be payable to the Board whenreceived by the member.

Upon receipt of this recovery, and the member~ return to duty, the Board shall authonze the restoring of the member~

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accumulated sick pay (,Teditseqw'valent [0 the amount ofrecovery recei ved.

15 ](C)

A member covered by Article 152 and involving a third party, shall notify the Board in wdting of his decision whether or not to take the benefit package of the Workers' Compensation Board.

8. delete item 5 Schedule "B" (Sick Leave Credits) and replace with a clause that provides

each member with computer access to hislher accumulated number of sick leave credits,

as updated monthly;

add new items 10 and 11 to Schedule "B" as follows;

l.Q. AmembershaDnotifytheBoardin writingofhisintention to claim damages against a third party[or injury or illness which has caused the member to be off duty for which absence the member receives sick lea vesalary. The Board shall authorize the restoring of the member's accumulated sick paycredits equivalen t to the amount of recovery received.

1l.. In the event of any dispute between the member's physician and theBoard'smedical doctor concerningamember's fitness to work, the parties shall agree upon an independent physician (who may be a specialist) who shall examine the member and have access to hiSlher medical records.' The

independent physician, in consultation with the Board's medical doctor and themember's physician, shalldecideupon thefitness of themember to work(wjth or without restrictions). In the event theparties are unable to agreeupon anindependent physician an arbitrator, appointed under the arbitration provisions of the collective agreement, shall appoint one.

9. add a new Article 9.8 (Schedule 1- Compressed Work Week) as follows;

A committee comprised oftwo (2)representatives of management and two (2) representatives of the Association (and such additional members as are mutually agreed) shall examine a twelve (12) hour or any other altemative compressed work week schedule for the cm and identification branches. Such committee

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:,'hallcommence its inquiry forthwith and shall report no later I than September 1, 1995

10. add a new .A.rticle26.14 (Promotions) as follows; I

A committei:fcompnsed of two (2)representati vesof managemen t I

and two (2) representatives of the Association (and such I additional members as are mutually agreed) shall review the

present promotional procedures. Such committee shall commence I its inquiry forthwith and shall report no later than September 1,

1995 I

11. add a new Article (Two-OfficerCars) as follows; I

. A committee comprised oftwo (2)representatives of management I and two (2) representatives of the Association (and such

additional members as are mutua11y agreed) sha11consider the I

appropriate level of two-oilicer patrols. Such committee sha11 commence its inquiry forthwith and sha11report no later than

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September 1,1995 I

I DATED at Toronto this J~-+:ay of February, 1995."

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KEVIN M. BURKETI

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