OPAC 77-007

IN THE MATTER OFTHE POLICE ACT,R.S.O. 1970, c.351, asamended, AND AN ARBITRATION

BETWEEN:

THE SUDBURY REGIONAL POLICE ASSOCIATION(hereinafter referred to as the "Association")

- and -

THE SUDBURY REGIONAL BOARD OF COMMISSIONERS OF POLICE(hereinafter referred to as the "Board")

CONCERNING THE PROMOTIONAL SYSTEM

Arbitrator: Professor J. W. Samuels

Appearances:

For the Association -

E. Sopha, CounselR. Bastien, PresidentG. MacKay, TreasurerV. Collison, First Vice-PresidentA. McCauley, Member of the Bargaining CommitteeR. Bulman, Member of the Bargaining CommitteeMax Doan, President, Sault Ste.Marie Police Association

For the Board -

J. R. Reid, CounselD. B. Taylor, ChairmanJ. Shilliday, Chief of PoliceH. Guillet, Deputy Chief of PoliceWalter Johnson, Chief of Police, City of London

C O N T E N T S

Paqe

Introduction................."..................... 1

History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

The Promotional System............................ 10

Argument of the Association....................... . 11

Argument of the Board............................. 14

Decision.......................................... 14

List of Exhibits.................................. 18

INTRODUCTION

On May 6, 1977, I was appointed by the Solicitor-

General to hear and determine the difference between these

parties, pursuant to section 33 of The Police Act, as amended.

Under the Act, I am required to hold the hearing within thirty

days. The hearing was held in Sudbury on June 6, 1977 and the

parties consented to this slight extension of time, pursuant

to section 34 of the Act. It was also agreed that I had juris-

diction in the matter.

The problem here is long-standing and has involved a

number of appearances before arbitrators and the courts. It

is, therefore, with considerable reservation that I embark on

yet another attempt to sort out this dispute in an adequate

way.

HISTORY

In October 1974, the Board promulgated two documents -

a Performance Rating Manual, and The Promotional Process

(combined in Exhibit D.4). These two documents constituted the

new system of promotion which the Board intended to implement

in the Sudbury Regional Police Force. This plan was modelled

on the system used in the City of London. In January 1975,

the Association made it known that it was opposed to the new

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scheme. This opposition was reduced into writing and submitted

to the Board on October 6, 1975 (Exhibit "A" appended to

Exhibit D.10). However, on March 10, 1975, the Board formally

adopted the new promotional system (Exhibit H).

In June 1975, the Association grieved the failure

of the Board to confirm the rank of seven officers promoted

to the rank of Acting Sergeant in June 1974. Had the new

system not been introduced, these men would have been confirmed

in the rank of Sergeant. Eventually, Professor Swan was

appointed to hear and determine this difference. On December 21,

1976^, he recommended that they be confirmed in the rank

(Exhibit F). This was done by the Board in February 1977.

In October 1975, the Board attempted to hold written

promotional examinations. However, the building wherein they

were to take place was picketted by members of the Force and no

one wrote the examinations in Sudbury. One member of the Force

happened to be in Aylmer at the Ontario Police College and

wrote the examination there on that day. As a result of this,

he was promoted. This is the sole promotion which has taken

place in the Force since the introduction of the new system,

except for the confirmations of acting rank.

In 1975, the parties were unable to reach accord on

a new collective agreement. Thus, in early September, they

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found themselves before Professor K. Swan, who had been

appointed to arbitrate the new agreement. At the hearings,

the Board introduced the new 'Manual as its contribution to

the lengthy discussions on the question of seniority and

promotion. On October 31, 1975, Professor Swan issued his

award. Because this award is the underlying basis of the

difference now before me, I think it wise to reproduce what

he said (Exhibit D.5, at pages 27-35) :

This topic, and the succeeding one, areapparently part of a complex dispute between theparties which involves a newly instituted promotionprocedure. According to the evidence of Chief Shillidayand Deputy Chief Guillet, the Board adopted on March 10,1975 a promotion scheme which was first developed inthe City of London Police Force. This new plan wasadopted at the urging of, and was approved by, theOntario Police Commission, and an excerpt from thereport of the Commission dated January 15, 1974, out-lining the requirements of an acceptable promotionalscheme was presented to me as Exhibit C-10.

Because of the importance placed on the planby the Board's witnesses, and because of the Association'sconsiderable concern over the possible defects of theplan, I have studied Exhibit C-ll at length and haveweighed its implications as carefully as possible,considering that the plan has not yet gone into effectand that there was no evidence of any actual experiencethereunder. The plan provides for a complicated assess-ment mechanism'to be conducted by a member's immediatesuperior on a regular basis, in order to produce a currentperformance rating. In any competition for promotion,that rating counts for 50% of the total merit computationon which promotion is to be based. A written examinationcounts for 30% and an appraisal by interview by a promo-tion committee counts for another 10%. Seniority, on aweighed scale of up to 15 years, counts for only 10%of the total merit computation.

The Association's proposal would insert aseniority clause into the agreement in the followingterms:

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"Where any promotions or changes are madewithin the department, such promotions orchange will be made with regard to: a)seniority of a member, accumulated as apolice constable in the department; b)the requirements arid efficiency of opera-tions and ability, knowledge, trainingand skill of a member to fill the normalrequirements of the promotion or change."

This clause, according to the Board's witnesses, would bea direct reversal of the new promotion scheme. Accordingto Mr. Conroy, it would serve simply to ensure that, allother things being equal, seniority should be recognizedas the governing factor in order to prevent favouritismor abuse.

In my view, the proposed provision would onlyhave the effect suggested by the Board's witnesses if itwere read so as to create a priority between seniorityand qualifications, with the emphasis on seniority firstand with qualifications only as a secondary consideration.If that were the intent of the clause, I am bound to saythat I would not consider awarding it. In police work,perhaps to a greater degree than anywhere else, thestultifying effect of a promotion scheme based strictlyon seniority would be contrary to the interests of policeand public alike, and unacceptable. On the other hand,if the purpose of the Association is merely to preventfavouritism and abuse by introducing an objective elementof seniority, such a result can surely be achieved withoutresorting to such extreme measures.

The usual form of promotion clause designed toachieve this purpose in industrial sector collectiveagreements provides that where the qualifications ofcandidates are relatively equal, seniority shall prevail.Indeed, comparing the usual industrial practice with theprovisions of Exhibit C-ll reveals serious weaknesses inthe new scheme. First, there is apparently no forum towhich an appeal can be taken to test the validity of thepromotion decision; in the industrial sector the arbitra-tion process is always available. Second, the schemestretches the importance of numerical accuracy to the verylimits of credulity, first by using a range of lOOo overwhich candidates may theoretically be assessed, and thenby providing that wher-e fractions occur they will beextended to two decimal places (Exhibit C-ll, PromotionalProcess, paragraphs 15(3), 24, 39 and 46). Finally, theprocess provides that candidates with the same total points(presumably still to two decimal places) will be placed ona list of successful candidates according to seniority.

5.

Clearly, such a process tries to do theimpossible. It is based upon the premise that it ispossible to detect (by a complex structure involvinga considerable amount of evaluation by an immediatesuperior which must of necessity contain a subjectiveelement; a written test; and an interview by a panel ofsenior officers) differences between police officers sominute as to be measurable to two decimal places. It iscommonplace knowledge that, in any scoring system, thebulk of the candidates will end up occupying a verynarrow range of the possible scoring spectrum; this isthe basis of the use (in places as diverse as universitiesand the Armed Forces) of normal distribution curves formarking the examinations of large numbers of candidatesspread among several class groups.

In the scheme described by Exhibit C-ll, theinformation used to compile the total comes from fourdifferent sources, only one of which (seniority) is totallyobjective and free from the possibility of" either erroror bias in the testing process. Moreover, the mostimportant single factor, the performance ratings, may wellcome, as between two candidates, in totally differentkinds of police work. In such circumstances, a smalldifference in total marks between any two candidates would,of necessity, be completely meaningless.

Finally, the most distressing element of theentire scheme is that, having gone to such lengths tograde and rank candidates, the drafters of the system placeno obligation upon the Chief of Police to be bound by theresults of the competition. Paragraph 45 of the PromotionalProcess part of Exhibit C-ll, simply provides:

"The Chief of Police may select candidatesfrom the list of successful competitorsand recommend their promotion to theBoard."

Thus, there is apparently no obligation upon the Chief ofPolice to choose candidates for promotion in order ofmerit, nor does it seem likely that, given the confiden-tiality restrictions which surround the system, therewould be any way for anyone to know whether he had or not.

These comments are, of course, only personalassessments of the new promotion scheme based upon a studyof the evidence presented, and without the advantage ofhaving seen the scheme in operation. Consequently, itmust not be forgotten that I have a limited jurisdctionunder the Police Act, and that any action I may take indealing with the dispute between the parties concerning

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promotions is restricted thereby. It is thus importantto discuss the limits of that jurisdiction before proceedingto a settlement of the dispute. Section 29(2) of the Actprovides that an agreement may provide for "workingconditions... except such working conditions as aregoverned by a regulation made by the Lieutenant Governorin Council under this Act". Section 72(1) (c) providesthat regulations may be made "governing the qualificationsfor the appointment of persons to police forces and fortheir promotion". By R.R.O. 1970, Regulation 680, section 31the qualifications for appointments to police forces areestablished by O. Reg. 780/73, subsections 4(4) to 4(7),the minimum service requirements for "re-classification"through the four grades of the rank of constable are setout. No regulation has been made concerning promotion,and it therefore follows that, until the Lieutenant Governerin Council chooses to regulate promotion of police officers,the matter is subject to bargaining under the Act and,ipso facto, is within the jurisdiction of an arbitratorappointed under section 32 to deal with a dispute concern-ing promotion policy.

I do not, however, consider that it is withinmy jurisdiction to amend Exhibit C-ll; that document repre-sents an attempt by the Board to exercise its right todirect the operation of the police force. That right,however, is subject to the provisions of the agreement,and it is within my jurisdiction to deal with any disputeas to the terms of that agreement. It would, nevertheless,be dangerously close to exceeding that jurisdiction toinclude any term in the agreement which had the effect ofcompletely nullifying Exhibit C-ll.

After much deliberation, I have decided upon asettlement which will preserve the operation of ExhibitC-ll, but will subject its results to certain safeguardsto meet the concerns of the Association. It is unnecessary,but perhaps only courteous, to remark that the awardingof the safeguards is in no way a reflection upon theintegrity of the Board, the Chief of Police, or any policeofficer. Rather, they are designed to answer the justifi-able concern of the Association not about actual abuse,but about the possibility of abuse and the difficulty ofproving, in a disputed case, that no abuse has occurred.

It is my award that the agreement include aclause in the following terms:

"Where promotions are to be made through anypromotion competition instituted by theBoard, the Chief of Police shall recommendcandidates for promotion on the basis that

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candidates of relatively equal merit shallbe recommended in order of seniority, basedupon the date of promotion to the presentrank held by the candidates. The promotionprocess shall be subject to the grievanceprocedure and, at the option of the Associa-tion, to arbitration under the Police Act."

This provision is designed to produce the following effects

1. Only candidates who are successful in the promotioncompetition will be eligible for promotion. Thus theauthority of the Board to set reasonable standardsfor promotion will be unimpaired.

2. The selection among the successful candidates by theChief of Police will continue to be a matter for hisjudgement. He will be able to select an exceptionalcandidate over a more senior but less qualified one,but will be restricted from choosing among candidateswhose marks are "relatively equal" — that is, whofall into the same general range of marks -- on anybasis except seniority in rank.

3. The process will, in disputed cases, be subject toindependent review through the grievance and arbitra-tion processes. This is not so onerous to the Boardas it may seem to the uninitiated. First, the Associa-tion itself will act as a filter to block vexatiousor unfounded appeals, since it will be responsiblein part for the costs of any arbitration. Second,the principles developed by arbitrators under theLabour Relations Act, R.S.O. 1970, c.232, as amended,in cases of this sort give considerable latitude tothe employer to set the qualifications for promotion.to conduct testing, and to determine relativelyequal qualifications subject to the requirements thatthose decisions be made fairly, reasonably and ingood faith. (See, e.g.: Union Carbide Canada Ltd.(1967) 18 L.A.C. 109 (Weiler); St. Lawrence SeawayAuthority (1969) 23 L.A.C. 156 (Weiler). Thosedecisions would certainly guide any arbitratorinvolved in a promotion arbitration under the presentaward.) The purpose of the grievance mechanism isto ensure that, where a genuine dispute exists overa particular promotion, a system exists to resolvethat dispute in a fair, open and conclusive way.Such a mechanism is in the interests of the Board,the Association and the individual police officers,and is far more conducive to harmonious relationsbetween the parties than the smouldering resentmentsand bitter feelings that are produced when allegationsof bad faith cannot be openly resolved.

8.

The legitimate interest of the Board in selectingthe best qualified candidates for promotion, andthe countervailing legitimate interest of theAssociation in protecting its members from thepossibility of (or any apprehension of) favouritism,bias or caprice are balanced in a way which gives dueweight to each of these important considerations.

On December 1, 1975, the Board appealed this part of

the award to the Divisional Court on the basis that the arbitrator

had no jurisdiction to deal with the matter of promotions. The

decision of the Court was not issued until July 6, _1976. We

shall come to it in a moment because, in the interim, several

events occurred.

On January 27, 1976, the Board posted a notice

announcing written promotional examinations on May 28, to be

held pursuant to the Board's promotional system. On May 26,

the Association moved for an injunction. Mr. Justice O'Leary

dismissed the application but ordered that the examinations

be postponed for at least two months (Exhibit D.6).

The decision of the Divisional Court of July 6, 1975

(Exhibit D.8) upheld the Swan award. The Court concluded

(at page 6) :

"that promotion was a working condition(my note: within section 29 of the Act)and therefore within the authority ofthe arbitrator and that he was actingwithin his authority in stipulating aclause dealing with promotion for thecollective agreement."

9.

Shortly before the decision came down, the parties

were engaged in hearings before Mr. George Ferguson in order

to arrive at the 1976/77 collective agreement. The question

of promotion and seniority was not discussed because the matter

was before the Court. In the end, the parties came to their

own agreement and the Ferguson award recorded it. The Swan

provision, now Article 25 of the agreement, was retained.

On January 26, 1977, the Board posted a notice

announcing written promotional examinations on May 27

(Exhibit D.12). Fifty-six members of the Force applied to

write these examinations. The Association moved for an

injunction. Mr. Justice Craig (in Exhibit E) dismissed the

application on the basis that the Sudbury Regional Police

Association was not capable of maintaining the action. He

held that the collective agreement is not binding on the

Association, only the municipality, Board and members of the

Force. In the alternative, he held that there had not been

established a prima facie case of the likelihood of irreparable

injury.

t

Nonetheless, on May 27, members of the Force picketted

the building wherein the examinations were to take place and

they were not held.

10.

In his decision dated April 13, 1977 (Exhibit E),

Mr. Justice Craig made it clear that the Association may take

to arbitration its dissatisfaction with the Board's promotional

system. Hence, the difference now before me.

THE PROMOTIONAL SYSTEM

The promotional system set out in the Manual and

The Promotional Process involves a number of elements.

Firstly, there is a twice-yearly performance evalua-

tion of all personnel up to the rank of Inspector. This

evaluation is done by an officer's immediate superior.

Secondly, there are promotional examinations. A notice

concerning these examinations will be posted approximately

four months before they are to be held. Those persons interested

in writing the examinations will be given training material

three months prior to the.day of writing.

Thirdly, an applicant for promotion at this stage

will be graded on his or her seniority, performance and written

examination. If a minimum number of points is received, then

an interview will be arranged with the Promotion Committee.

This Committee consists of the two Deputy-Chiefs and an Inspector

appointed by the Chief of Police. After the interview, the

Committee will award further points.

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The relative weighting of the various elements is

as follows (for each element, the maximum number of points

possible is given):

Seniority 10 points

Performance 50 points

Written examination 30 points

Committee appraisal 10 points

Fourthly, the Committee will report to the Chief on

the results of the promotional evaluation. The precise word-

ing of The Promotional Process is important here (Exhibit D.4):

"47. The Promotion Committee shall preparea list of successful competitors... and thenames of the candidates on the list shall bearranged in order of merit according to theaggregate points awarded, commencing from thegreatest number to a lesser number. Wheretwo or more candidates have the same totalpoints computed on merit, their names shallbe arranged in order of seniority of appoint-ment to the Force."

Fifthly, the Chief of Police will make his recommenda-

tions to the Board concerning promotion.

Sixthly, the Board will decide on promotions.

ARGUMENT OF THE ASSOCIATION

On behalf of the Association, Mr. Sopha argued that

the Association is fundamentally opposed to the use of the

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Manual and The Promotional Process by the Board. Three of the

main reasons for this are:

a. the grading scheme leaves too much up to the

individual subjective opinion of the superior

officer,

b. paragraph 49 of The Promotional Process permits

the Chief of Police to ignore the merit of the

candidates for promotion and to recommend whom-

ever he wishes, and

c. inadequate attention is paid to seniority as is

contemplated in Article 25 of the agreement.

He argued that Article 25 of the agreement calls for

a promotional process which is fair and which is agreed to by

the Association. It is worth repeating the Article here -

"Where promotions are to be mad;- throughany promotion competition instituted bythe Board, the Chief of Police shallrecommend candidates for promotion onthe basis that candidates of relativelyequal merit shall be recommended in orderof seniority, based upon the date ofpromotion- to the present rank held by thecandidates. The promotion process shall besubject to the grievance procedure and,at the option of the Association, toarbitration under the Police Act."

The Manual and The Promotional Process do not comply with

Article 25. Professor Swan, in the award which established

Article 25, had expressed grave reservations about the use of

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the Manual. Mr. Sopha argued that it was not just for the

Board to continue using the Manual in the face of the Swan

award.

Mr. Sopha argued that the Board has never waivered

from its view that it was the sole authority in deciding upon

the promotional process. He suggested that this view is

indefensible in light of the Divisional Court decision of

July 14, 1976 (Exhibit D.8) which held that promotion was

within the ambit of working conditions. I am satisfied from

the evidence led by both parties that the Board is determined

to try the new promotional system, that the Association is

adamant in its opposition to the scheme, and that the parties

have had considerable difficulty finding an opportunity to

discuss the matter in a reasonable and fruitful fashion.

Argument was advanced and evidence led to show that

the Board's promotional system was not a good one. I heard

from Mr. Bastien, President of the Association, and Mr. Doan,

President of the Sault Ste. Marie Police Association (where

a similar system is in operation). ,

Furthermore, it was argued that there is no need in

the Force for promotions at this time. The Association takes

the view that the ranks are already filled adequately.

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Therefore, the Association asks me to declare that

the Manual cannot be used in the promotional system.

ARGUMENT OF THE BOARD

On behalf of the Board, Mr. Reid argued that Article 2'.

governs the situation but that it permits use of the Board's

promotional system. He argued that particular recommendations

could be grieved but that no valid difference could arise for

submission to arbitration until the process had been employed

and found wanting. The Association had never permitted the

system to operate.

Evidence was led in the testimony of Chief of Police

Walter Johnson, from the City of London, that this type of

promotional process can work successfully.

The Board is of the view that there is now a crying

need for new promotions. The existing complement of 213 officers

soon to be 233, requires additional personnel in the higher

ranks.

DECISION

In the first place, we must make absolutely clear the

power of this arbitration. We can determine only the question

15.

of the validity of the Board's promotional system pursuant

to Article 25 of the collective agreement. It is irrelevant

to the decision in this arbitration whether Article 25 is

wise or not, and whether the promotional system is a good

one or not. For the purposes of this arbitration, Article 25

is the rule. The sole question is whether or not the Board's

promotional system complies with it.

»

Carrying this preliminary point a step further, it

is important to note that while the present Article 25 arises

out of the Swan award of 1975, that award does not govern the

implementation of Article 25. Professor Swan expressed grave

reservations concerning the use of the Manual and The Promo-

tional Process. Nonetheless, if Article 25 permits their use,

then the Board's promotional system is valid.

Turning to Article 25, it contemplates a "promotion

competition instituted by the Board." It contemplates a

system whereunder recommendations for promotion are to be made

"on the basis that candidates of relatively equal merit shall

be recommended in order of seniority." This Article places

no fetter on the Board's method of evaluating merit. It places

no fetter on the Board's determination of the type of promotion

competition. All it provides is that, when the dust has settled,

seniority must govern where merit is relatively equal.

16,

In fact, this is what Professor Swan intended. Though

he criticized strongly use of the Board's system, he said

(Exhibit D.4, page 32):

"I have decided upon a settlement whichwill preserve the operation of ExhibitC-ll, but will subject its results tocertain safeguards to meet the concernsof the Association." (My note: ExhibitC-ll was the Manual and The PromotionalProcess)

The safeguard was the right of the Association to grie-

and process through arbitration any promotion decision with whic:

it disagreed.

I am driven to the conclusion that, under the exis-ting

agreement, the Association has no option but to accept the Board'

promotional system. If the Association is of the view that any

particular decision does not comply with Article 25, then it may

grieve that decision.

While the award could end here, I cannot refrain from

making several observations. It is now clear that the promo-

tional system is a matter of working conditions and can be

negotiated between the parties. The Divisional Court, in its

decision of July 14, 1976, came to this conclusion. Indeed,

the Chairman of the Board, in March or April 1977, said on

television that promotion was a negotiable item and would be

negotiated for 1978.

17

Much evidence was introduced before me concerning

the usefulness of the Board's system. I make no comment on

it, except to say that it ought to be brought forward again

at the negotiations for the 1978 agreement.

It seems to me that the historical record of the

impact of the present Article 25 shows that it is inadequate

to solve the difficulties between these parties concerning

the promotional system. It may be that these parties need

a mutually agreed upon system incorporated at length in the

agreement or by way of an annex which can be changed easily

by mutual agreement.

In accordance with the wishes of the parties, I

shall remain seized of this difference if there are any problems

of interpretation of this award.

Done at London, Ontario, this 14th day of June, 1977.

W. Samuel

18.

LIST OF EXHIBITS

(None of the exhibits is appended to this award. Adequatequotation has been made from those necessary to the decision.)

A. Letter to The Honorable" John P. MacBeth, Solicitor-General,from R. Bastien, dated April 15, 1977. An explanationof the difference between the parties is appended tothis letter.

B. Letter to R. Bastien, from J. L. Ross, Secretary to theBoard, dated May 11, 1977.

C. Letter to J. L. Ross, from R. Bastien, dated May 12, 1977.

D. Compendium of documents submitted by the Association,consisting of:

1. Request for an Arbitrator.2. 1975 Working Agreement.3. 1976-77 Working Agreement.4. The Performance Rating Manual and The

Promotional Process.5. Professor Kenneth- Swan's Award.6. Justice O'Leary's Order.7. Divisional Court Order.8. Reasons for Judgment of Division Court.9. Affidavit & Exhibits attached of Deputy

Chief Guillet, May 21st, 197610. Affidavit & Exhibit attached of Chairman

Taylor, May 21st, 1976.11. Memorandum #28, January 27th, 1976, by

Deputy Chief Guillet.12. Memorandum #18, January 26th, 1977, by

Deputy Chief Guillet.13. Memorandum #29, February 4th, 1977, by

Deputy Chief Guillet.14. Letter to Chairman Taylor, February 8th, 1977.15. Letter to Chairman Taylor, April 15th, 1977.16. Letter of Reply from Chairman Taylor, April 21st,

1977.17. Amended Copy of the London Police Force -

The Performance Rating System and ThePromotional Process - Second Edition,September, 1976.

E. Decision of Mr. Justice Craig, dated April 13, 1977.

F. Award of K. P. Swan in the matter of a grievance relatingto acting sergeants, dated December 21, 1976.

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G. Memorandum from II. A. Guillet, to all division, branch,and platoon commanders, dated December 1, 1976.

H. Record of Board motion of March 10, 1975.