8[0.. iRI"" ~ .-- - "~':;a , 902-00Q - 1M5Y BELLEVILLE MAY14/92 ­

BURKETT Kevin M. "INTEREST" AROPAC AWARD

IN THE MATTER OF AN ARBITRATION

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BETWEEN: CITY OF BELLEVILLE POLICE SERVICES larDDte,OatarigM1A2tI3

BOARD

AND: BELLEVILLE POLICE ASSOCIATION

AND IN THE MATTER OF 1991-1992 COLLECTIVE AGREEMENT - UNIFORM AND CIVILIAN

BOARD OF ARBITRATION: Kevin M. Burkett Sole Arbitrator

APPEARANCES FOR THE Malcolm Winter SpokespersonPOLICE SERVICES T. Boyd Member of BoardBOARD: R. Begbie Police Chief

W. Tremble Deputy Police Chief

APPEARANCES FOR THE Mal Connolly Spokesperson ASSOCIATION: John Walker Association President

Wayne Doyle Dan Hoxford

BargainingII Committee"

John Butler II II

II " Denise Lynch

A hearing in this matter was held in Belleville, Onto on Thursday,April 2, 1992.

"

1. I was appointed by the Solicitor General, pursuant

to The Police Services Act, to act as arbitrator in respect of

the 1991 contract bargaining between the Belleville Police

Association and the City of Belleville Police Services Board.

My appointment extends to both the Uniform and Civilian negotia­

tions. The parties advised me at the outset that they had

agreed to extend my authority to cover the 1992 calendar year.J

Accordingly, there is no dispute with respect to my jurisdiction

to hear and determine all matters in dispute between these parties

in respect of the collective agreements for both the Uniform and

Civilian staff for both 1991 and 1992.

2. The dispute before me is representative of a number of

current public sector disputes where the expectations of employees,

based upon historical comparison, corne up against the economic

reality of public sector restraint. Although both parties have

put before me a number of requests it has been made clear by

both parties that the salary issue is the number one priority.

The message that I have taken is that whatever economic resources

are available should be channelled into salary.

3. In police salary arbitration in this jurisdiction the

first class constable is the benchmark. These parties voluntarily

negotiated a 1990 annual salary for a first class constable of

$44,100. The Association is seeking a two-stage increase for

1991 that will bring the first class constable salary to $48,850

(10.8% increase end rate to end rate) and a further two-stage

2.

increase for 1992 that will bring the first class constable

salary to $51,400 (5.2% increase end rate to end rate). The

Police Services Board has responded with an offer of 5% for

1991, to produce a 1991 end rate of $46,305, and a further 1%

for 1992, to produce a 1992 end rate of $46,768. The extreme

disparity in the two positions is attributable to the parties'

respective frames of reference.

4 . The Police Association, not surprisingly, points,

firstly, to the salaries paid to other police officers in what

it refers to as comparable forces and, secondly, to the salary

paid to fire fighters employed by the City of Belleville. The

Association compares the salary paid to a Belleville first class

constable to the average of the salaries paid to first class

constables employed by the eleven forces used by Arbitrator

Samuels in his 1981 Cornwall Police award (Brantford, Chatham,

Cornwall, Gloucester, Guelph, Kingston, Nepean, North Bay, Sarnia,

Sault Ste. Marie and St. Thomas) i to the salary paid by the seven

forces of comparable Uniform and Civilian strength (i.e. between

50 and 100: Barrie, Cornwall, Chatham, Haldimand-Norfolk, North

Bay, St. Thomas, Timmins); to the salary paid by the five forces

in the same geographic area with a Uniform and Civilian strength

of between 50 and 150 (Cornwall, Gloucester, Kingston, Nepean

and Peterborough); and finally to the salary paid to the composite

of the aforementioned. Finally, the Association refers us to the

freely negotiated settlement which raised the salary paid to the

St. Thomas first class constable from $42,743 to $50,972 effective

July, 1992.

3.

5. The Association also focuses on the long-standing

relationship between the salaries paid to Belleville police

officers and the salaries paid to Belleville fire fighters.

Both the first class constable and first class fire fighter

were paid a salary of $44,100 for 1990. Historically the

first class constable has enjoyed an average premium of

$237 per annum (since 1980) over the first class fire fighter.

The Bellev~lle fire fighters were the recipie~ts of an arbitra­

tion award for 1991-92, dated December 10, 1991, that provided

for the following salary increases for the first class fire

fighters:

Belleville Fire Fighter's Award

1991-92

Effective Jan. 1, 1991 - First Class Fire Fighter $46,250 " " " "

Sept. 1, 1991 - 47,100 " " " " Jan. 1, 1992 - 49,100 " " " " Oct. 1, 1992 - 50,520

The Association also refers to the March 31, 1992 award to Kingston

fire fighters whjch brought the first class fire fighter employed

by that municipality to $50,828 effective July 1, 1~92.

6. The City of Belleville Police Services Board submits

that the salary increase for 1991 should be 5% and that the

salary increase for 1992 should be 1%. In support of its position

the Police Services Board refers to the 12-month inflation rate

for Ontario of 1.3% announced on March 20, 1992 and the negative

.4% inflation rate for Ontario over the past six months. The

Police Services Board argues that only a nominal increase is

needed to keep pace with inflation. Reference is also made to

4 .

the state of the local economy and to the recent award Brantford

Police Nov. 1991 (Jackson) in which the arbitrator, in awarding

a projected cost-of-living increase of 5% instead of a police to

police comparison increase of 6.5% stated that "... the economic

situation is so desperate that the police to police comparisons

which have always been the principal consideration ... must take

a subordinate place, temporarily, to economic necessity". Reference

is also made to the Report of the Factfinder for the Secondary

School Teachers of Metropolitan Toronto (Nov. 25, 1991) (Marcotte) .

7. The Police Services Board considers Chatham, Cornwall,

Timmins and Woodstock to be a reasonable comparison group in that

the population of these centres ranges from 30,000 to 42,000

compared to a Belleville population of 38,000. The Uniform

strength of these forces ranges from 45 to 79 while the Uniform

strength of the Belleville force is 73. The Police Services

Board argues that because the Belleville first class constable

earned 96.6% of the average of the salaries paid to the first

class constable in these other locations in the period 1982-1990,

a 5% increase for 1991, which would bring the rate for the

Belleville first class constable to 96.7%, is a reasonable

adjustment. The Police Services Board points out that a similar

comparison with forces in communities with populations of between

20,000 and 50,000, applying the proposed 5% salary increase for

1991 brings the Belleville first class constable salary to 97.1%

of the group average. It is submitted, therefore, that no case

for "catch-up" can be made.

5.

8. Finally, the Board of Police Services refers to the

settlements negotiated for 1991 and 1992 with the various

municipal and education workers in the area. The increases for

municipal workers were, on average, 5.5% for 1991 and 5% for 1992.

The teaching, office and custodial employees of the Hastings

Board of Education received a 6.3% increase for 1991. Reference

is also made to the general services settlement between O.P.S.E.U.

and the Ontario Government of 1% for 1991 and the settlement

between the O~tario Hydro Employees Union and Ontario Hydro of

a 1% increase for 1992 and a cost-of-living adjusted 2% for 1993.

9. The Board of Police Services justifies its offer of a

1% salary increase for 1992 on the basis of the dramatic reduction

in the rate of inflation and the general rate of settlement

subsequent to many of the settlements now in place for 1992.

am asked to discount the award to the City of Belleville Fire

Fighters for 1992 on the basis that when Arbitrator Mitchnick

made his award there was only one other relevant fire fighters'

settlement in place (St. Thomas) and that the subsequent decline

in both the cost of living and settlements generally demonstrate

that the fire fighter award for 1992 was excessive.

10. I have given careful consideration to the submissions

of the parties. The recent decrease in the cost of living and

the moderation of both private and public sector wage settlements

are factors that have a direct bearing on the matter at hand.

These factors are reflective of a deterioration of both the

provincial and the local economies. Having said this, however,

I

6 .

these trends did not accelerate until the end of 1991 and into

1992, after most relevant 1991 public sector wage settlements

had been determined. In this regard the following 1991 settle­

ments are in place:

(i) City of Belleville inside/outsideand library workers 5.5%

(ii) City of Belleville public utilityemployees 5.5%

(iii) County of Hastings inside/outsideemployees 5.5%

(iv) Hastings Board of Education ­academic/clerical and supportemployees 6.3%

(v) City of Belleville Fire Fighters 6.8%

(vi) Average salary increase for crosssection of police forces withsimilar strength and/or in samegeographic area (Barrie, Brantford,Chatham, Cornwall, Gloucester,Guelph, Kingston, Nepean, North Bay,Peterborough, Sarnia, Sault Ste.Marie, St. Thomas, Timmins) who havesettled for 1991 5.8%

11. It must be found, therefore, that although the current

economic situation mitigates towards a lesser increase the

Belleville police officers would have received an increase in

line with the increases set out above if they had settled in 1991.

In my view it would be grossly unfair to now disregard these

settlements and thereby single out the Belleville police officers

for special treatment vis-a-vis other public sector employees

in this area. The timing alone distinguishes this case from

the Brantford award relied upon by the Police Services Board.

7 .

Accordingly, whatever might be the impact of the current economic

downturn on 1992 salaries it is my view that the established

pattern for 1991 must prevail. In this regard we have paid

particular attention to the 1991 fire fighter salary increase,

which is in line with the pattern of police and fire fighter

salary increases for 1991, because of the long-standing relation­

ship between police and fire fighter salaries generally and, more

specifically, because of the long-standing relationship between

police and fire fighter salaries in this municipality. The annual

salary paid to a first class constable exceeded that paid to a

first class fire fighter in this municipality by an average of $237

between 1981 and 1989 inclusive. Both were paid the same annual

salary of $44,100 in 1990. Accordingly, even though the end rate

increase to the fire fighters exceeded that negotiated in respect

of other public sector employees in this area by 1.3% in the case

of municipal employees and .5% in the case of Board of Education

employees, the relationship between police and fire fighter salaries

should nevertheless be maintained for 1991. In this regard it should

be observed that the 1991 annualized cost of the fire fighter award

was 5.517%, which is essentially the same as that for other municipal

employees. Furthermore, the application of the fire fighter salary

increase for 1991 maintains the position of the Belleville first

class constable some $1,350 behind the average annual salary paid

to first class constables employed by the cross section of police

forces with similar strength and/or in the same geographic area

which are listed above.

8 .

12. It has long been recognized that salary determination

under a system of interest arbitration is not an exact science.

There is a range within which it is reasonable to fix the salary.

The objective is to award a salary which falls within this range.

Keeping in mind that no benefit improvements are to be awarded I

am satisfied that for the year 1991 an increase to the salaries

paid to police officers in this municipality that replicates the

increases awarded to fire fighters in this municipality is within

the range of what is reasonable in all the circumstances.

13. This takes me to 1992. I have before me the local public

sector settlements for 1992, which are only about 1/2% less than

for 1991, and the 1992 Belleville fire fighter salary award which

takes the salary for a first class fire fighter working in the City

of Belleville to $50,520; and end rate increases over 1991 of 7.28%.

However, at the time the fire fighter award was handed down the

only relevant fire fighter rate in place for 1992 was in respect of

St. Thomas ($50,942) where a catch-up increase in excess of 18% over

two years had been negotiated. A subsequent award, dated March 13,

1992, in respect of the City of Kingston Fire Fighters brings the

1992 end rate for a first class fire fighter working in the City

of Kintston to $50,828. More importantly, at this time the 1992

salaries for police officers have been set for only three of the

fifteen police forces used for comparison purposes in paragraph 10

herein. Accordingly, in response to the submissions of the Police

Services Board with respect to the state of the local economy,

restricted transfer payments, and the need for restraint I am

prepared to order an interim increase effective January 1, 1992

and to then remain seized for purposes of determining in late 1992

9 .

what, if any, additional increase is justified having regard to

both the 1992 public sector settlements that have been determined

and those which have yet to be determined. I will also remain

seized for the purpose of determining the effective dates of any

further increase and whether or not interest should be awarded.

14. Both parties made it clear that the issue of salary

was the number one priority. Accordingly, except for salaries

and the matters dealt with below, this is a standstill agreement.

The first exception, and one which both parties acknowledge must

be addressed, is the matter of legal indemnification. I have con­

sidered the positions of the respective parties and prefer that

advanced by the Police Services Board (except for the stipulation

that the counsel retained by the officer carryon a practice in the

City of Belleville) which is patterned after the clause found in

the Metro Toronto agreement. The second exception is the matter

of compressed schedules. These parties negotiated a mutually

acceptable schedule and, therefore, it will be my award that the

parties meet for the purpose of implementing, no later than December

31, 1992, the schedule that has been agreed upon.

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

UNIFORM AWARD

The parties are directed to enter into a renewal collec­

tive agreement for the period January 1, 1991 to December 31, 1992

incorporating the terms of the expired collective agreement save

and except that the terms of the expired collective agreement are

to be amended to incorporate all matters agreed between the parties

prior to the date hereof and, in addition, the following:

10.

I Effective January 1, 1991 the salary paid to a first class

constable is to be increased to $46,250 and all other ranks

are to be adjusted accordingly.

Effective September 1, 1991 the salary paid to a first class

constable is to be increased to $47,100 and all other ranks

are to be adjusted accordingly.

Effective January 1, 1992 the salary paid to a first class

constable is to be increased, on an interim basis, by a

further 3%, and all other ranks are to be adjusted

accordingly.

All officers who have worked since January 1, 1991 are

entitled to retroactivity.

II Add a provision to the collective agreement captioned

"Legal Indemnification" to read as follows:

".01 Subject to the other provisions of this Article,an Officer charged with and finally acquitted ofa criminal or statutory offence because of actsdone in the attempted performance in good faithof his/her duties as a Police Officer, shall beindemnified for the necessary and reasonablecosts incurred in the defence of such charges.

.02 Notwithstanding Article .01, the Board mayauthorize payment of necessary and reasonablelegal costs of an Officer pleading or beingfound guilty of an offence described in clause.01, where the court, instead of convicting theaccused, grants him an absolute discharge, pro­vided that the Board accepts the recommendationof the Chief of Police, or an Officer designatedby him to make such a recommendation that theOfficer's actions as a Police Officer in the courseof performing his/her duties were motivated by anintent to do his/her lawful duty, that such actionsdo not constitute any of the actions described inArticle .03 hereof, and that such indemnification willnot, in the opinion of the Board, reduce respect forlaw enforcement in the City of Belleville.

11.

.03 Notwithstanding Article .01, the Board may refuse payment otherwise authorized under Article .01 where the actions of the Officer from which the charges arose amounted to a gross dereliction of duty or deliberate abuse of his/her power as a Police Officer.

.04 Where an Officer is a defendant in a civil action for damages because of acts done in the attempted performance in good faith of his/her duties as a Police Officer, he/she shall be indemnified for the necessary and reasonable legal costs incurred in the defence of such an action in the following circumstances only:

.

a) Where the Chief of Police is not joined in the action as a party pursuant to the Police Services Act, and the Chief of Police does not defend the action on behalf of himself and the Officer as joint tort sole expense.

feasors at the Board's

b) Where the Chief of Police is joined as a party or elects to defend the action, but the solicitor retained on behalf of the Chief of Police and the Officer is of the view that it would Chief

be improper for him to act for both the of Police and the Officer in that action.

.05 An Officer whose conduct is called into question in the course of an inquiry under the Coroners Act because of acts done in the attempted performance, in good faith of his/her duties as a Police Officer shall be indemnified for the necessary and reasonable legal costs incurred in representing his/her interest in any such inquest in the following circumstances only:

a) Where the Chief of Police and/or the Board does not provide counsel to represent the Officer at the inquest at the Board's expense; or

b) Where the counsel provided by the Chief of Police or the Board to represent either or both of them along with the Officer is of the opinion that it~would be improper for him to act for both the Chief of Police or the Board and the Officer in that action.

.06 Where an Officer intends to apply to the Board for indemnification hereunder, the Officer shall, within thirty (30) days of being charged or receiving notice of other legal proceedings covered herein, or receiving notice that he/she

12.

will not be represented by counsel retainedby the Chief of Police and/or the Board, applyin writing to the Board for approval to retaincounsel and approval of the counsel to be soretained. Such approval shall not be unreasonablydenie~.

.07 Where the Chief of Police, pursuant to Boardpolicy elects to provide legal counsel to defendan Officer in any legal proceeding covered by thisprovision, the cost of counsel is the Board'sresponsibility irrespective of the outcome of theproceedings and neither the Officer nor the Boardmay rely upon the other provisions of this policy.

.08 For greater certainty, Officers shall not beindemnified for legal costs arising from:

i) grievances or complaints under the CollectiveAgreement between the Board and the Associa­tion, or under the Police Services Act;

ii) the actions or omissions of Officers actingin their capacity as private citizens;

iii) discipline charges under the Police ServicesAct, and regulations thereunder.

.09 For the purposes of this provision, an Officershall not be deemed to be "finally acquitted" if asa result of charges laid, he/she is subsequentlyfound guilty of, or pleads guilty to, other chargesarising out of the same incident or incidents, butnothing in this clause will disentitle the Officerto consideration under clause .02 hereof.

.10 For the purposes of this provision, "necessary andreasonable legal costs" shall be based on theaccount rendered by the solicitor performing thework subject initially to the approval of theCity's solicitor and, in the case of dispute betweenthe solicitor doing the work and the City'ssolicitor, assessment on a solicitor and clientbasis by an Assessment Officer. "

III Amend article 5.01 no later than December 31, 1992 to

incorporate the agreement between the parties with respect

to a compressed work week. The parties are to meet for

this purpose forthwith.

I

13.

I remain seized for the purpose of deciding what,

if any, additional 1992 salary increase is justified including

the effective date of any further increase and whether or not

interest should be awarded on any further salary increase.

remain seized as well to deal with any other difficulty between

the parties arising out of the implementation of this award.

DATED at Toronto the 14th day of

I Sale Arbiti

14.

CIVILIAN AWARD

The parties are agreed that the Civilian staff should

receive the same salary increase as the Uniform staff. Accord­

ingly, it is my award that the Civilian staff salaries be

adjusted on the same basis as that which has been awarded for

the Uniform staff.

I make no further award with respect to the Civilian

staff.

I will remain seized in the event of any difficulty

with the implementation of my award to the Civilian staff.

DATED at Toronto the 14th day

ofMay,17

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