in the matter of an arbitration between administration/91… · in the matter of an arbitration...

IN THE MATTER OF AN ARBITRATION

BETWEEN:

THE CORPORATION OF THE CITY OF BURLINGTON

("Employer")

and

THE BURLINGTON PROFESSIONAL FIRE FIGHTERS' ASSOCIATION

Stephen Raymond Jeffrey Sack, Q.C. Michael Riddell

Appearances for the Employer:

Mark H. Mason Roy Male Dave Beatty TonyBavota Jeff Weber Leanne Sneddon Kim Phillips

Appearances for the Association:

Sean McManus Henry Watson Dan V anderlelie Paul Cunningham Kevin Ritchie Craig Slack Chris Burville

Chair Association Nominee Employer Nominee

Counsel

("Association")

Executive Director of Human Resources Acting Fire Chief Deputy Fire Chief Deputy Fire Chief Human Resource Representative General Manager of Corporate Services

Counsel Advocate BPF A President BPF A Secretary BPF A Vice-President Member Member

AWARD

We have been constituted as a Board of Arbitration ("the Board") pursuant to the Fire

Prevention and Protection Act ("the Act") to adjudicate upon the issues in dispute

between the parties in respect of the negotiation of a collective agreement. It is our

function to replicate the collectively bargained result that the parties would have

achieved.

There are a number of issues in dispute between the parties. There is a dispute between

the parties in respect of the term of the collective agreement. The City requested that we

continue the pattern of the parties and have a term that runs from May to April. The

Association requested that we change the term so that the collective agreement ends at

the end of the calendar year. We see no reason, at this time, to do other than what the

parties have done themselves with respect to this issue. The collective agreement shall

have a three year term commencing May 1, 2011 and expiring April 30, 2014.

The rates of pay for the first class firefighter shall be as follows:

Effective May 1, 2011



$ 83 826

$ 86 173

$ 88 500

All other rates shall be adjusted accordingly.

We award that the Employer shall pay the amounts owing retroactively to the dates set

out above. In making the calculation of the retroactive payment, the Employer is entitled

to deduct all payments it has made as an advance on retroactive pay.

We award the following changes effective sixty ( 60) days following the date of the

award:

Increase the maximum reimbursement for orthodontics from $2000 to $3000.

Increase the maximum reimbursement for vision care from $350 to $450.

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Experience pay to Communication Operators and eliminate any existing right to Service

Pay.

Increase the number of Deputy Fire Chiefs from two to three and pluralize Deputy Fire

Chief as necessary in the collective agreement.

Grant the City's proposal in respect of the grievance procedure.

Grant the City's proposal in respect of making one of the thirteen statutory and declared

holidays a lieu day to be booked off.

We remit the following proposals back to the parties and remain seized:

Health care spending account, promotional process, a captain on a second vehicle

(including rate), Training Supervisor, paramedical benefits, experience pay to mechanical

division and the City's proposed changes to sick leave.

The parties spent a great amount of time and energy in respect of litigation over the issue

of the introduction of a trial of a twenty-four shift. We have had the benefit of the

extensive reasons of Arbitrator Etherington in Ajax who heard the same expert testimony.

The City argued vigorously against the introduction of a trial. It noted that this is a

decision that should be left to the City and/or to the management of the fire department

and neither supports the introduction of a trial. It stated that the Association had not

demonstrated a need to change the status quo and the current shift. In respect of

comparators, it noted that in the departments with more than 45 fire fighters and fewer

than 350 fire fighters (we were informed that Burlington had 196 members in the

Burlington Fire Fighters Association at the time of the hearing) only 15 of the 34

departments were working the twenty-four hour shift. Accordingly, even if this board

was to base its decision on comparability, the data does not support introducing a trial of

a twenty-four hour shift.

The City argued that the only expert testimony that we heard (which was called by the

City) was that the current shift arrangement is better and safer than the twenty-four hour

shift. If, the City argued, the Board determines there should be a change then there ought

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to be considered a number of alternatives to the twenty-four hour shift. As well, it

asserted that the fact that the fire fighters wanted the twenty-four hour shift ought not to

be given much weight and that the onus ought to be on the Association to demonstrate

conclusively that there is some benefit to be obtained by switching to the twenty-four

hour shift.

The City also argued that a trial is not really a trial as many municipalities that have tried

to end a trial have been met with stem and effective resistance to revert to the prior shift

structure by fire fighters.

The Association argued as vigorously in support of the introduction of a trial of the

twenty-four hour shift. It argued that where there are comparables which support the

demand, it is not necessary to demonstrate need for the demand. It was argued that most

firefighters in the province were already working the twenty-four hour shift and the trend

in the bargaining was clearly towards more fire fighters working that shift.

In respect of the expert testimony called by the City, the Association noted that the same

expert had appeared before Arbitrator Etherington in Ajax and relied on his comments in

that award. In fact, the expert had testified before numerous boards of arbitration and had

not persuaded any arbitrator or arbitration board not to award a trial of the twenty-four

shift. It urged this board to do likewise.

We are not satisfied that there has been established any safety concerns that would cause

us not to award the introduction of a trial. We understand that the twenty-four hour shift

is presently being worked by many fire fighters in Ontario. The current shift requires ten

hour and fourteen hour shifts. There is no information in respect of how well rested the

fire fighters who are working the current shift are and whether the length of the shift

impacts the ability to perform the duties of the job. This is a matter that can be studied

during the trial period. We are most informed in making this decision by the principle of

replication and that the fire fighters in the neighbouring municipalities of Hamilton and

Oakville are currently working a twenty-four hour shift trial. We direct the parties to

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form a committee consisting of equal members from the City and the Association to

create a twenty-four hour shift trial with a duration of two years. The committee will be

provided with a period of six months from the date of this award to establish the

parameters of the trial and we remain seized in respect of any issue upon which they

cannot agree.

We also award all agreed to provisions.

All other proposals of either party are denied.

We remain seized in accordance with this award and until a collective agreement is in

place. We further remain seized in respect of this award and any matter that may arise

between the parties with respect to its implementation or interpretation.

Dated at Toronto, this 61h day of March, 2015.

"Dissent attached" Michael Riddell

" Dissent attached" Jeffrey Sack, Q.C.

5

Dissent of Employer Nominee

I have reviewed the A ward of the Chair and I dissent from the A ward on the issue of the imposition of the trial of the twenty-four hour shift. However, I would first express my apologies to the Parties for the failure of our Board of Arbitration to issue an A ward in a reasonable time subsequent to the last hearing date. The last hearing date was in December of 2013 and our Board has taken approximately fifteen months to issue this A ward. The Chair's decision to refer seven issues back to the Parties for further discussion with our Board of Arbitration retaining jurisdiction is simply wrong and destructive of good labour relations. The Collective Agreement that was subject to this Arbitration expired on April 30, 2014, and the next round of bargaining is the more appropriate forum for the Parties to deal with unsolved issues. Most of the issues have substantial monetary implications and this A ward already provides substantial monetary improvements.

On the issue of the trial of the twenty-four hour shift, this is another case of an Arbitrator in the Fire Sector imposing a substantive change in hours of work, which is not supported by the City, or the management of the Fire Department. Outside of the Fire Sector, there is little or no precedent for Arbitrators imposing such a draconian change to work schedules. When Firefighters work only seven or eight 24 hour shifts per month and are allowed to sleep as much as approximately 30% of each shift, it must inevitably impact on the operations of the Fire Department on issues such as training and supervision. Moreover, while characterized as a trial, no Municipality has been successful in ending a trial and reverting to the prior shift schedule. Ultimately, it is not surprising that Firefighters would prefer to work seven or eight days per month even though such preference is not available to the overwhelming number of taxpayers who fund the Fire Department.

Dated at Toronto, Ontario this 5th day of March, 2015

Employer Nominee

1

PARTIAL DISSENT OF ASSOCIATION NOMINEE

While the Chairman has sought to balance and accommodate the interests of the Association and Corporation, in light of the criteria of the Fire Protection and Prevention Act, I would have awarded additional monetary and non-monetary changes. Nonetheless, the parties will soon be in negotiations for 2014 and following years, and can address their attention again in that process to outstanding issues.

Jeffrey Sack, Q.C.


BETWEEN:


("Employer")

and




Mark H. Mason Tony Bavota Leanne Sneddon


Dan V anderlelie Paul Cunningham


Counsel Fire Chief Human Resources

President Secretary

A hearing was held in Toronto on December 15, 2015.

("Association")

SUPPLEMENTARY A WARD





achieved.

By award dated March 6, 2015, we ordered the commencement of a trial period of the

twenty-four hour shift. The parties have been through extensive negotiations and have

arrived at a consensus on almost every issue in respect of the trial. They have remitted a

discrete issue to the Board for determination. We address it as follows:

The City has developed benchmarks to be studied during the trial. Its measurement tools,

objectives, baselines and data to be collected for each benchmark are attached to this

decision. The City takes the view that each of the baselines must be met in order for the

trial to achieve a pass. If so, the City takes the position that the trial will be made

permanent automatically. If it does not, the trial shall end and the parties shall return to

the previous shift. The Association takes the view that the matter of the success of the

trial should be determined at the end of the trial. It is our view that success of the trial

should be determined by taking into account all data available in respect of the

benchmarks established. The Board concludes that it has no jurisdiction to bind the

deliberations of the board that may be created at the end of the trial to determine if it was

a success.

Dated at Toronto, this 23rd day of December, 2015.

2

"I dissent, in part - attached" Michael Riddell

" I concur - attached" Jeffrey Sack, Q.C.

3

Benchmark Measurement Tool Objective Baseline

Average of 2013, 2014, 2015 (until

June 30, 2015)

Sick Leave It is the goal of the Demonstrates that the Fire 6.8 Days per parties to reduce where Fighter is less ill when working employee (one day practicable, sick time a 24-hour shift. Fire Fighters equals 12 hours). usage. Comparative are working less consecutive analysis will be days so a natural reduction in undertaken to confirm sick time should occur. The Average number of that there is no number of sick days and the incidents 2.2 increase sick leave as a number of sick incidents will result of the 24-hour be used. shift.

W.S.l.B. A comparative analysis A measurement that In analyzing the past 3

of all claims during the determines the affects the new years,8.3% of

trial period will be shift may have on claims. approved claims

occurred between 12 reviewed as well as #of lost time incidents =6.3 am & 7 am those from previous years. #of lost time days=15.6

Rf move a Comparative analysis A measurement to determine 0 v hi~le from of how often a vehicle the affects the new shift may

is taken out of service have on emergency response service

due to Fire Fighter's not service.

reporting to work on

time, or because

minimum staffing could not be achieved or was unavailable, based on

3.04 of the collective agreement

Training

Turn out Time

Overtime

Public Education

Harassment/ violence complaints

An increase in the time A measurement to determine it takes to deliver the affects the new shift may programs have on Fire Fighter training.

There shall be no training conflicts as a result of the 24 hour shift.

There shall be no increase costs in training as a result of the 24-hour shift. No reduction in the assigned training initiatives completed as a result of the 24 hour shift.

A measurement to determine the affects the new shift may have on turn out times to

65,692 Hours

Based on 172 FF

2014 actual turnout

Comparative analysis of turn out times during the trial period versus previous year turn out times.

ensure that the level of service 2min. 1 seconds for all

All BFD Code 2 Ontario Fire Marshall types (lights and sirens).

Comparative analysis of costs during the trial period as it relates to the 24 hour shift.

Comparative analysis of activities during the trial period.

Comparative analysis will be completed during the trial period.

to the community is maintained or improved

A measurement to determine the affects the new shift may have on overtime costs. Specifically overtime to cover 12 or more hours

A measurement to determine the affects the new shift may have on ensuring the level of activities have not decreased.

A measurement to determine the effects the new shift may have on staff and their ability to get along for 24 consecutive hours. Specifically, respect in the workplace, harassment or violence

code 2 responses

6836.55 hours

Number of public education events and participation

2014 - 525 events and 80081 participants

0 complaints

Data Collection

Benchmark Dept. System(s) Collection Method Measure

Sick Leave HR Banner I EmpCentre All unionized employee sick leave data; days Increase Negative (pay code) and incidents averaged

Calculation= Aggregate monthly total (increases incrementally moving forward from 2013) divided by the total months x 12 = Moving Average

WSIB HR Banner/ EmpCentre WSIB Form 6 Count - Filing to Board Increase Negative

Calculation: - count lost time (hours) · - count lost days - time of day of accident (12pm - 7am)

Remove Fire FDM Calculation: The count of career emergency Increase Negative Vehicle from (Apparatus Unit #; response vehicle(s) that are removed from Service example Pump 311 or service based on the minimum staffing level

P311) not being achieved due to the 24 hour shift.

Minimum Staffing Level= CA Article 3.03-

4 Rescue Pump 2 Aerial 2 Rescue

The department currently has 10 emergency response apparatus and a Platoon Chief.

35 staff are required to ensure this level of response.

Current Experience with 10/14 shift = 0

Data Collection

I I

Benchmark Dept. System(s} Collection Method Measure

Training Fire (Our Training Room) Calculation = Number of suppression personnel Decrease Negative Training (participants) x courses x planned hours= total

hours

Turn-out Time Fire FDM All trucks responding code 2 Increase Negative (Burl. Incidents) = Dispatch time to enroute time at the goth

percentile time achieved. Career emergency response apparatus only.

Calculation: En route time achieved less the time dispatched= turn-out time achieved

Overtime HR& Banner I EmpCentre BTE and OTl hours, at 12 hours or greater Increase Negative Hours Fire (pay code}

Calculation: Count of Overtime shifts for the above noted pay codes that are at 12 hours or greater

Public Fire FDM All public education events entered in FDM Decrease Negative Education (eventtype)

Calculation= PubEd events totaled by the count of event categories (e.g. smoke alarm) and the participant total.

Harassment HR Index Filing System Investigation notes, investigation results Increase Negative /Violence By Year Complaints Calculation= total count of sealed files count

(per year)

• Data will be provided on a quarterly and annual, (exception public education due to data entry in RMS system).

Partial Dissent of City Nominee

I have reviewed the Award of the Chair in this matter, and I respectfully

dissent in part. I would have awarded the City's proposed approach to

determine, possibly for the first time in Ontario, that there is an objective

basis on which to conclude whether a 24 hour trial shift has been successful

or not. However, in the absence of determining this matter on a conclusive

basis as the City has proposed, the Chair's Award in recognizing the validity

of the City's proposed measurables (to which there were no objectives from

the Association) represents a step in the right direction. This will assist the

Parties in determining whether or not this trial has been successful.

Dated at Toronto, Ontario this 19th day ofDecemberh, 2015

"5ttichae[ <Rjdde[[''

City Nominee

1

Concurrence of the Association Nominee

I agree with the Chair's Award. I do not agree with the "spin" put on the Award by the

Employer's Nominee. The Chair refused to endorse the City's proposed weighting of factors

relating to the 24-hour shift trial or its proposed marking scheme, leaving it to a future

arbitration board to decide on the outcome of the 24-hour shift trial, taking all data into

account. As for the City's proposed measurables, while most accord with the Association's,

some do not (attached is the Association's proposed list of measurables).

I do not understand the Chair to have recognized the list established by either party as valid.

My own understanding is that the parties are free to submit whatever measurables they

choose, and their relevance and weighting, if any, will be determined, as stated above, by a

subsequent board of arbitration. On this point, I reiterate the words of the Chair: "The Board concludes that it has no jurisdiction to bind the deliberations of the board that may be created

at the end of the trial to determine if it was a success."

Jeffrey Sack, Q.C. Association Nominee

Absences

Training

Association's Proposed List of Measurables

• Comparative analysis to measure whether there is a difference in sick leave totals that can be attributed to the 24 hour shift schedule.

• Comparative analysis to measure whether there is a difference in the amount of requests for modified work due to stress/fatigue that can be attributed to the 24 hour shift schedule.

• Comparative analysis to measure whether there is a difference in the number of WSIB claims that can be attributed to the 24 hour shift schedule.

• Comparative analysis to measure whether there is a difference in the on duty Training statistics that can be attributed to the 24 hour shift schedule.

Response Times • Comparative analysis to measure whether there is a difference in the turnout and response times that can be attributed to the 24 hour shift schedule.

Overtime • Comparative analysis to measure whether there is a difference in the amount of overtime that can be attributed to the 24 hour shift schedule.


BETWEEN:


("Em p I oyer")

and




Mark H. Mason Roy Male Dave Beatty Tony Bavota Jeff Weber Leanne Sneddon Kim Phillips


Henry Watson Dan Vanderlelie Paul Cunningham Kevin Ritchie Craig Slack Chris Burville


Counsel

("Association")

Executive Director of Human Resources Acting Fire Chief Deputy Fire Chief Deputy Fire Chief Human Resource Representative General Manager of Corporate Services

Advocate BPF A President BPF A Secretary BPF A Vice-President Member Member

SECOND SUPPLEMENTARY AWARD





achieved.

By decision dated March 6, 2015, we remitted back to the parties the following issues:

Health care spending account, promotional process, a captain on a second vehicle

(including rate), Training Supervisor, paramedical benefits, experience pay to mechanical

division and the City's proposed changes to sick leave.

The parties engaged in a protracted process to resolve these issues. Unfortunately, only

the promotiona l process was resolved. Having considered the submissions of the parties,

we direct that the parties amend the collective agreement in accordance with the

Association' s proposal to amend article 13.04 in respect of Captains and Acting Captains.

Given the economic impact of granting this demand, we direct that half of the increase be

paid sixty days (the "effective date") following the date of this award and the second half

to be paid on the one year anniversary of the effective date. All other proposals are

denied.

We remain seized in accordance with this award and until a collective agreement is in

place. We further remain seized in respect of this award and any matter that may arise

between the parties with respect to its implementation or interpretation.

Dated at Toronto, this 201h day of July, 2017.

2

" Dissent attached" Michael Riddell

" Dissent attached" Jeffrey Sack, Q.C.

3

Dissent of City Nominee

I have reviewed the Award of the Chair on the issue of requiring the City to

appoint a Captain on second fire trucks at a Fire Station, and I strongly

dissent. That issue was one of several issues that the majority of the

Arbitration Board (with me dissenting) decided to refer back to the Parties

for further consideration with the Board remaining seized of the issues if the

Parties could not reach agreement. Provincial Legislation today prohibits

such referral. The Collective Agreement that was subject to this Arbitration

expired on April 30, 2014. More than three years later, the Chair has issued

this Award that requires the City of Burlington to appoint additional

Captains at an estimated cost to the taxpayers of approximately $200,000 per

year.

The events leading this Award are as follows:

On November 16, 2016, the President of the Local Firefighters' Association

had a meeting with the City's Human Resource person responsible for the

Fire Department. He advised her that Mr. Sack had informed him that the

Award was being released and that it awarded a Captain on second fire

trucks at a Fire Station. At this point in time, although the Chair and I had

discussed the supplementary award, the Chair had not sent a draft A ward to

me. When I subsequently received the draft Award, the Chair indicated to

me that he was only prepared to consider changes in form, not substance. I

was outraged that a draft Award had been discussed, yet alone prior to me

being aware of it. When I advised the Chair that Mr. Sack had disclosed the

draft Award to the President of the Local, the Chair was concerned. We

1

delayed the release of the Award. There were further discussions with the

Chair in which I suggested awarding some alternative approaches to resolve

the matter. The Chair ultimately rejected these suggestions, and this Award

confirms the original draft Award with a slight variation in the timing of the

implementation of the requirement for a Captain on second vehicles.

The extreme delay in issuing an Award for a Collective Agreement, which

expired more than three years ago, is not supportive of an ongoing,

harmonious relationship between the Parties.

Dated at Toronto, Ontario this 19th day of July, 2017.

"gvt_ icliae [ <RJ,cfcfe[('

City Nominee

2

Partial Dissent of Association Nominee

I must dissent from the second supplementary Award to the extent that it delays full implementation for a

year. There is no justification for doing so as the Award simply replicates the practice of comparator

municipalities and the decisions of other arbitrators.

According to the evidence, unlike Burlington, the vast majority of municipalities in Ontario do not make a

distinction, in pay or otherwise, between officers in command of a primary vehicle and those in command of

a secondary vehicle. Across Ontario, officers in charge of a fire vehicle are all typically classified as

captains, without distinguishing in rank or pay. Indeed, for the most part, the rank of "junior captain" or

"lieutenant" was abolished years ago.

As for the remarks in the Corporation nominee's dissent regarding the supposed premature disclosure of

the Chair's draft Award, this assertion is based on a report by a member of the City's Human Resources

staff of a conversation she had with the president of the local union. However, this assertion is contested by

the local union president, and in my view there is no reason to alter the award in any respect.

in the matter of an arbitration between administration/91… · in the matter of an arbitration...

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