~ -- ..",..~ -.. n~ I ~ORK 9S-00~t NON-OPAC Burkett, Kevin Feb. 24, 1995 I AWARD INTEREST - 1993 Uniform ContrdC:' I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I 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.
10
Embed
I Burkett, Kevin Feb. 24, 1995 I AWARD INTEREST I IN THE …policearbitration.on.ca/search/documents/awards/95-001.pdf · 2015. 1. 19. · burkett, kevin feb. 24, 1995 i award interest
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
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off or otherwise withdrawn in the normal give and take of collective bargaining.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know precisely which items would have been traded off or withdrawn.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
\
\
\
\
I
3
- -- - --- --- - - --
I
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
I
4I
I
I
II
---------
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
5
~ -- -- ~ - - - - ~ - - - - -- - -
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;
6
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
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~
1
I
\
-\
\
\
\
\
\
\
\
\
\
\
\
\
\
\
\
\
\
\
\
\
\
\
\
\
\
\
\
\
\
\
\
\ '
\
\
\
\
\
\
--- --_u u
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
I
8
I"
:,'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
I
September 1,1995 I
I DATED at Toronto this J~-+:ay of February, 1995."