In the Matter of an Arbitration
between
The Metropolitan Toronto Police Services Board
and
The Metropolitan Toronto Police Association
(Grievance re. Shift Schedule – 31 Division)
Before:Richard L. Jackson, Sole Arbitrator
Appearances: For the Association: Roger Aveling Counsel Martin Weatherall Director of Legal Services Graham Hanlon Chief Steward, 31 Division
For the Board: Bruce Stewart Counsel Supt. Al Griffiths Unit Commander, 31 Division Inspector Tony Corrie 31 Division Marianne Chen Labour Relations Jennifer Norman Articling Student Daniel Fogel Articling Student
Hearings were held in this matter in Toronto on May 3, 4, and 17, 1999, September 22, 23, and 29, 1999, April 4, 2000, and May 23, 24, and 30, 2000.
1 Introduction This is the grievance of the Toronto Police Association against the Toronto Police Services Board. The Association alleges that the Board violated the collective agreement when it switched from a shift system for the detectives of 31 Division based on a six week cycle to one based on a five-week cycle in March of 1996. It asks that I so find and that, as a remedy, I make the appropriate declaration and direct the Toronto Police Service to restore the old six-week shift cycle for the detectives in 31 Division, “with all attached conditions”. This case was exceedingly long, complex and messy (in the sense of the evidence and what it reflects). The events in question took place more than four years ago and involved a number of principal actors on each side, several of whom are no longer with the respective parties. Thus, memories are hazy. With ten days of hearings stretched over more than a year, 12 witnesses, 370 pages of testimony, and a large amount of documentary evidence, this arbitration has been an arduous process for all concerned. In the interest of keeping this award to some reasonable length, my finding of fact is to a large extent set out in parallel with the relevant evidence. The case deals with a sequence of events stretching over a period of approximately nine months in 1996. I have outlined them in chronological order on the basis of the evidence, both oral and documentary. To a considerable extent, this evidence as to what actually happened is reasonably consistent; where there are differences, however, I point them out and, wherever it is possible, come to a determination of fact.
Background This case involves the shift schedule of the detectives of 31 Division in what was at that time the Metropolitan Toronto Police Service. 31 Division is one of three divisions that
2 form 3 District, which is located in the northwest part of the city, an area that includes the Jane-Finch corridor and some of the highest-crime areas in Metropolitan Toronto; in short, the 31 Division detectives have a high volume of crime, and particularly violent crime, with which they must deal. The detectives in 31 Division fall into two different categories: those in the general “Detective Office”, often referred to as C.I.B. (Criminal Investigation Bureau), and those who are assigned to specialty bureaux, such as fraud, sexual assault, youth crime, and so on. For obvious reasons, a general detective office (CIB) must be staffed 24 hours per day, seven days per week. The detectives working in the specialized bureaux, however, work only a two-shift schedule since those functions do not require round-the-clock staffing. Until the early 1980s, police officers in Metropolitan Toronto worked eight-hour shifts. However, at that time, there was a movement away from the eight-hour shift to what was generically known as the “Compressed Work-Week” system, so-called because it was based on shifts that were longer than eight hours and so gave officers considerably longer continuous periods of time off. The Compressed Work Week was developed by the Department of Corporate Planning in the Metropolitan Toronto force and, as it happened, one of the principals in the instant case, Detective William Inglis, worked in Corporate Planning in the late 1980s and became something of an acknowledged expert on shift systems. This was to play a role at 31 Division in the events giving rise to this grievance. As part of the general movement to a compressed work week across the Metropolitan Toronto Police Service, the parties negotiated a number of different “Accords” that tailored the shift-scheduling process to the specific requirements of certain units. One of those, which became known as the “3 District Accord” because it was designed for 3 District, which embraced 31, 32, and 33 Divisions – was a pilot project to try out for a period of one year, from September 7, 1987 to September 18, 1988, a compressed work week based on a cycle of six week; that is, the shift cycle for any given officer or platoon would be repeated every six weeks. The Pilot Project was made a permanent system, and the various Accords, including the 3 District Accord, are part of the parties’ collective agreement. They remain in place to this day.
3 The 3 District Accord is a 17-page document, some relevant excerpts of which have been set out below.
ACCORD ON REVISED SHIFT SCHEDULE FOR C.I.B. MEMBERS IN 3 DISTRICT
PREAMBLE
The following provisions briefly describe the nature and the application of the current collective agreement to the members assigned to C.I.B. duties covered by this Accord, during this Pilot Project.
1. TERM OF STUDY
Officers, who are assigned to investigative operations at District Drug Squad, District Plainclothes and Divisional C.I.B.’s Youth Bureau, Oldclothes, Major Crime, Warrants, Fraud and Private Complaints, shall be assigned to work in accordance with the Revised Shift Schedule contained herein. Members assigned to other functions encompassed by C.I.B. operations could be included at the Unit Commander’s discretion.
2. (a) REVISED SHIFT SCHEDULE
The shift cycle and tours of duty to be made during the Revised Shift Schedule is to be of a type in accordance with the following general description:
(i) The cycle will consist of 6 weeks. The member will be scheduled to work 26 days and will be scheduled for 16 days off during this 6 week cycle.
(ii) All tours of duty are 9 hours in length, including a one hour lunch period. As in the present system there can be a flexibility in starting and finishing times depending on the requirements of any given day or project.
(iii) The arrangement of days worked to days off, the number of days worked in a row, the number of days off in a row and the number of days worked on any given shift will be at the discretion of the Unit Commander having regard to the needs of the particular unit or of the member working the Revised Shift Schedule….
(c) Due to the special aspects of the work of members of the C.I.B. and related investigative units, it is agreed to continue under the Chief’s discretion the past practice with respect to changes in their work schedules. Where such changes are necessary, it is understood that efforts will be made to maintain the tours worked to days-off ration in the six-week cycle in which such changes are effected, without the need for alterations to remuneration or the reduction of hours.
4 3. Working Conditions
The implementation of the Cycle is not intended to increase premium pay of members affected nor to reduce their regular salary but is intended to rearrange their working schedule as set out in Section 2. To that end, for members assigned to the Revised Shift Schedule this Accord takes precedence over the terms of the “Uniform” collective agreement and during the term of thie Accord the following articles of the collective agreement shall bear the interpretation as set out below.
(a) Sub-articles 5.01 and 5.02(a) are inapplicable;
(b) Each member shall be assigned a one hour controlled lunch period:
(i) when assigned to a nine hour tour of duty, after the completion of two and one-half hours of duty and be completed before the completion of seven hour of duty;
(ii) where the requirements of the service do not permit the taking of any lunch period the member shall be credited with one hour at straight time and where he/she is not able to take a full lunch period, he/she shall be credited with the balance of the lunch period at straight time;
(iii) a member, entitled to a controlled one hour paid lunch break who is granted permission to be excused from duty in accordance with the lieu time provisions of the Agreement after having completed half the assigned tour of duty shall have lieu time debited for hour absent and shall be credited with one hour straight time for lunch break not taken.
(c) Sub-article 5.02 (a) shall be amended in accordance with the Cycle as set out in paragraph 2 hereof provided, however that the Chief of Police in his/her discretion shall continue to have the right to change the starting time of a tour of duty, including the right to vary the starting time of a tour for overlapping at tour changes.
(d) Sub-clause (b) of 5.02 is inapplicable.
9. Study Committee
The Study Committee will comprise three representatives of the Association and three representatives appointed by the Board and the Committee will monitor this Accord, consider problems which may arise and make recommendations to the Parties. Such Committee acting unanimously shall have full power to alter, amend, delete or supplement the terms of the Accord.
5 10. Precedence of the Accord
Where a difference exists between the “Uniform” Collective Agreement and this Accord in respect to members assigned to work the Revised Shift Schedule, this Accord shall prevail.
DATED THIS 28TH DAY OF AUGUST, 1987.
Signed for the Metropolitan Toronto Board of Commissioners of Police and for the Metropolitan Toronto Police Association
The Accord also included nine appendices, each of which sets out a sample shift schedule. It is important to take particular note of Paragraph 9, which deals with modifications to any particular cycle through the mechanism of a “Study Committee”, a joint Association-management committee comprising three members from each. The last sentence, “Such Committee, acting unanimously, shall have full power to alter, amend, delete or supplement the terms of the Accord,” figures prominently in this case in that one of the key issues between the parties is the question of whether or not a particular meeting (between the President of the Police Association and the Manager of Labour Relations) constituted a Study Committee, for purposes of Paragraph 9 of the 3 District Accord and changing the shift system. A good deal of documentary and oral evidence, mostly from Paula Fairman, Board Labour Relations Analyst, was introduced by the Board with respect to how the Study-Committee mechanism actually worked over time. In the first few years, at least, when one of the parties – typically, management – wanted to introduce a change to a shift covered in one of the Accords, a proper Study Committee, consisting of three members from each of the parties, was set up. The Study Committee would meet, make a decision, and then confirm it in writing for both parties’ information and files. However, as the parties became more used to the process over time, a certain trend towards informality set it. As a first step, a Study Committee became four people – two from each side – and then, later on, often just two people - one from each side. Documentation of modifications to the shift cycle followed the same pattern of growing informality. Indeed, another pattern developed: management would raise the need for a change, there would then be an informal Study Committee – sometimes very informal - and Labour
6 Relations would then follow up with a letter to the Association setting out the change. Typically, the Association would not respond in writing, which came to be taken as assent to the change. In fact, it was typically only where the Association did have problem with the proposed change, that it would put that in writing. In short, then, the evidence made clear that, by the time of the events giving rise to this grievance took place, the Study-Committee process was both very informal and very unsystematic in terms of written follow-up. This becomes an important contextual factor for the events of 1996 and for the parties’ interpretation of them. The 3 District Accord provides for a six-week cycle, a work-to-time-off ratio of 26/16, and nine-hour shifts. The parties agree that there was flexibility to meet local needs, as long as the local shift system fell within these three parameters. The 31 Division shift system, developed under the 3 District Accord, is set out below. It appears in the form of a simple matrix, with six weeks and six platoons on the vertical axis on the left, plotted against the days of the week on the horizontal axis across the top.
31 DIVISION CIB CYCLE UNDER THE ACCORD
M T W T F S S 1 A A A A A X X 2 X X X N N N N 3 N N N X X X X 4 A A A A A A A 5 X X X D D X X 6 D D D X X D D
TOURS OF DUTY SHIFT # OF HRS. EXAMPLE D Days 9 hrs. 6:00 am to 3:00 pm A Afternoons 9 hrs. 3:00 pm to 12:00 am N Nights 9 hrs. 10:00 pm to 7:00 am
7 Under this system, twelve Detectives1 and twelve Detective Constables of the Detective Office were divided into twelve teams of one Detective and one Detective Constable each of which, in turn, were divided into six platoons or pods of four officers each – two Detectives and two Detective Constables; that is, two teams. Again, they appear on the vertical axis on the left-hand side. Thus, for example, No. 1 Platoon would work afternoons Monday through Friday of week 1, would have the next five days off, and would come back to work on the night shift on Thursday of week 2; they would work nights for seven days, have the following four days off, and then start seven days of afternoons on the Monday of week 4; they would then have three days off, work two shifts on days, following which they would have two more days off. This would bring them to week six, which would consist of three days on the day shift, two days off, and two more shifts on days. It should be noted that there are two platoons to cover the afternoon shift; thus, for example, in week 1, when No. 1 Platoon was working its five days of afternoons, No. 4 platoon was also working afternoons. This cycle met the requirements of the collective agreement, by virtue of its six week-long cycle, the 26/16 ratio of days worked to days off ratio, and its nine-hour shifts. Further, it was clear that this system was very popular with the 31 Division detectives because it provided every second weekend off and provided two teams to cover the busy afternoon shift from 3:00 p.m. to 12:00 midnight. During the early winter of 1996, 31 Division, along with other units in the Police Service, was facing reductions in manpower. Its Unit Commander, Superintendent Al Griffiths, was anticipating that he would lose a number of detectives from the Detective Office and that not all of them would be replaced. If this happened – as it did – then it would create a problem in terms of properly staffing the existing six-week shift cycle because the six-week system required twelve pairs of Detectives and Detective Constables – in other words, it required twelve Detectives. This was so because of Supt. Griffiths’s policy that there must be two Detectives on each shift so that, in the event that one was ill, on leave, training, in court, or otherwise unavailable, there would still be the other Detective available to take responsibility and supervise the two Detective
1 “Detective” (with a capital C) is a rank, equivalent to a Sergeant in the Uniform branch. “Detective Constable” is the other rank that figured in this situation; it, too, is a rank, equivalent to Police Constable.
8 Constables on the shift.2 The legitimacy of this requirement ultimately became one of the issues between the parties. In any event, it is clear from the evidence of both parties that it was common knowledge, amongst the personnel of 31 Division, that they were very likely going to lose some Detectives – Supt. Griffiths assumed he could end up with as few as seven Detectives - and that some, if not all, of these losses would not be made up. It was thus clear to all that something would have to be done with respect to the shift system, given the obvious fact that they would likely end up with fewer than twelve Detectives.
This, then, is the background to a series of events that culminated in the filing of the instant grievance in October 1996. What follows describes a series of dealings that took place at two levels – at the 31-Division level and at the corporate level of the Labour Relations Department of the Metropolitan Toronto Police Service and the leadership of the Metropolitan Toronto Police Association. It is tempting to say that what follows is an unusual litany of mistakes, misunderstandings and miscommunications. However, that would be both unfair and inaccurate. It is important to realize that, given that this situation played itself out at two levels, there were six – and really eight - separate relationships engaged3 at various times, thus increasing many-fold the all-too-human imperfection in communications, memory, understanding, and administrative follow-up. This was no doubt exacerbated by people who, at all levels, were very busy. And finally, one of the principal players – Len Hazel, then Manager of Labour Relations for the Metropolitan Toronto Police Service – was distressed and distracted over the death of his wife less than one month prior to the beginning of this chain of events.
In contrast, “detective” (without a capital D) refers to the person in a generic, job-function sense. 2 The Detective Constables fell into two groups: those “permanently” assigned to 31 Division and those “temporarily” assigned for six-month training stints; those in the latter group tended to be relatively inexperienced. Typically, one platoon or “pod” would have one “permanent” Detective Constable and one “termporary” Detective Constable. 3 (1) Corporate Labour Relations – MTPA Leadership, (2) 31 Division Management – 31 Division Detectives, (3) Corporate Labour Relations – 31 Division Management, (4) MTPA Leadership – 31 Division Detectives, (5) Corporate Labour Relations – 31 Division Detectives, (6) MTPA Leadership – 31 Division Management, (7) Police Services Board – MTPA Leadership, (8) Police Services Board – Corporate Labour Relations.
9 Discussion over the January-February Period The evidence shows that there is general agreement across both parties that, in January and February of 1996, there was a good deal of discussion at 31 Division of the impending reductions in detective personnel and, in particular, on their possible impact on the shift system. While there were no formal, organized meetings on the subject, Supt. Griffiths testified that he and Det. Sgt. Corrie4 discussed it intensively amongst themselves and that each discussed it on a one-on-one or one-on-two basis with almost all of the Detectives during this particular period. Part of these discussions involved a review of the shift systems in operation in other divisions, almost all of which, it should be noted, already used the five-week cycle. Another dimension to these discussions was whether or not having two Detectives per shift – every shift –was really a requirement or if the Division might cope adequately with only one Detective on duty. Suffice it to say that there was no meeting of the minds on this score, Supt. Griffiths believing in the importance of always having at least one experienced Detective available which, given the realities of policing, meant having two Detectives on each shift. (It is perhaps important to note that the policy of a having a minimum of two Detectives per platoon or shift did not originate with Supt. Griffiths and that it had already been in place for some years when he took over as Unit Commander at 31 Division in March of 1994.) Superintendent Griffiths, as well as discussing it with the Division’s Detectives, initiated discussions with Len Hazel, who, in turn, raised it with Paul Walter, then President of the Police Association. The evidence is somewhat imprecise on this point; however, I am confident that there was some - perhaps considerable - informal discussion between Supt. Griffiths and Len Hazel, and at least some discussion between Mr. Hazel and Mr. Walter. Mr. Hazel testified that he thought he remembered attending a meeting at 31 Division in February that was also attended by Paul Walter and Al Olsen for the Association and Supt. Griffiths, S/Inspector Marrier for the Division, and Det. Sgt. Corrie, whose roles encompassed both supervision and membership in the bargaining unit. No one else could recall this meeting when testifying, however. I conclude, as a matter of fact, that it did not take place, at least before February 22. Again, it is
4 Detective Sergeant Corrie was the senior detective at 31 Division at the time and a member of the bargaining unit.
10 important to note that, under the trying circumstances of Mr. Hazel’s life at that time, some confusion on such details is entirely understandable, particularly in view of the time lapse between these events and the hearing. Nevertheless, it is clear that there were at least informal discussions between 31 Division and Labour Relations (Supt. Griffiths and Len Hazel) and between Labour Relations and the Association (Len Hazel and Paul Walter). Supt. Griffiths also testified that he had a number of discussions with Deputy Chief Cann (to whom he reported)) on this issue, both to try to get some sense of how many replacement Detectives 31 Division might get, and also to review of the options for how best to adapt the shift cycle to the reality of reduced Detective strength.
Len Hazel’s Letter of February 22, 1996 On February 22, 1996, Mr. Hazel, sent the following letter to Paul Walter. 96.02.22
Mr. Paul Walter President Metropolitan Toronto Police Association 180 Yorkland Blvd. Willowdale, Ontario M2J 1R5
Dear Mr. Walter:
RE: REVISED SHIFT SCHEDULE – 31 DIVISION C.I.B.
As you are aware the present Revised Shift Schedule for the 31 Division C.I.B. provides for a six week cycle. The Accord also provides that if the Committee unanimously agrees the Accord can be changed.
Due to reduced manpower, it is no longer possible to man the C.I.B. with six platoons, therefore, we proposed to man the Unit using a five-week cycle as long as the present manpower remains constant.
We enclose a revised “Cycle” for your perusal. If the Committee agrees, then we will change the Accord to reflect this change.
The revision would read:
The “Cycle”
11 M T W T F S S 1 A A A X X X X 2 X N N N N N N 3 N X X X D D D 4 D D D D D* X X 5 X X X A A A A
TOURS OF DUTY
SHIFT NUMBER OF HOURS EXAMPLES
D – Days Nine (9) 7:00 am to 4:00 pm A – Afternoons Nine (9) 3:00 pm to 12:00 am N – Nights Nine (9) 12:00 am to 9:00 am D – Days* Eight (8) 7:00 am to 3:00 pm
WORKING CONDITIONS
(i) The implementation of the Cycle is not intended to increase premium pay of members affected nor to reduce their regular salary but is intended to rearrange their working schedule as set out in Section 2 and 3. To that end, for members assigned to the Revised Shift Schedule this Accord takes precedence over the terms of the Uniform Collective Agreement and during the term of this Accord the following article of the Collective Agreement shall bear the interpretation as set out below…
Yours truly,
Len Hazel Manager Labour Relations LH:mtm cc: Deputy Chief L. Cann Supt. A. Griffiths
By mistake, the schedule he attached was actually one taken from 13 Division, whereas, in their discussions with 31 Division personnel, Supt. Griffiths and Det. Sgt. Corrie had concluded that the five-week cycle that best suited 31 Division’s needs was the one from 42 Division.
12 The Meeting of March 6, 1996 On the afternoon of March 6, Superintendent Griffiths called the detectives who happened to be present in the building at that time together for a meeting. 5 He advised them that, in view of the fact that the Division was losing Detectives, the six-week cycle was no longer viable and that they were consequently going to have to move to a five week cycle. He knew the officers would not like this because, as noted earlier, they considered the six-week cycle superior; as it stood, officers would only receive two of five weekends off under the proposed five-week cycle, compared to three of six on the six-week cycle, and there would be only one team of four officers on the afternoon shift, compared to two teams with the six-week cycle. In addition, an officer might find him or herself working 18 straight days if he or she had court appearances on all days off, compared to only 12 straight days on the six-week cycle.6 The evidence from both parties’ witnesses is consistent that Supt. Griffiths seemed to be trying to get agreement from the detectives on the 5-week shift; in his own words, he felt it necessary and therefore important to move to a 5-week cycle, but wanted to do so in a way that would best accommodate the preferences of his detectives. The evidence was clear, too, that there was considerable unhappiness with the prospect, for the reasons set out above, and there ensued a general discussion over the drawbacks. The discussion did not seem to be getting anywhere in terms of achieving a consensus and, partway through the meeting, Supt. Griffiths left the room in order, in his words, to allow the Detectives to discuss the situation more freely. Discussion continued, Staff Inspector Marrier at one point asking if there was any way they could improve on the five-week cycle. This question seemed to precipitate some brainstorming, out of which came the notion of reverting to the old 50% leave-draw policy and rejigging the shift system so as to provide 50% of the weekends off. Supt. Griffiths came back to the meeting and was
5 In the afternoons, two platoons were present. As it happened, this included most of the senior Detectives, the so-called “Old Guard”. 6 That would happen if an officer was required to testify in court on each of his days off; in the immediately foregoing schedule, for example, if an officer had to appear in court (or otherwise be on duty) on the Tuesday, Wednesday and Thursday of week 3, then he or she would end up having worked 18 days straight. In contrast, under the six-week cycle (see p. 6) the longest continuous string of days would be 12, which would be the case in the event an officer was required to be in court on the Monday, Tuesday, and Wednesday of week 5.
13 shown the proposed variant on the five-week schedule; upon reviewing it, Supt. Griffiths indicated that he was not averse to this amended model of the five-week cycle – that is, a five-week cycle, but one that gave five of every ten weekends off, together with a modification to the leave-draw policy so that each person was constrained only by the leave-draw of his or her counterpart on the platoon. 7 There is general agreement that, at this point, they had arrived at consensus on this amended 5-week cycle. The direct viva voce evidence of the witnesses gives the flavour of what had transpired by the end of the March 6 meeting. Det. Sgt. Corrie: “the detectives seemed happy with it”. “[After the meeting] I went to the Detective Office…They seemed quite buoyant re what had been agreed upon.” Supt. Griffiths: “I said that this (amended 5-week cycle) would meet my needs”. S/Insp. Marrier: “…the March meeting was a very productive meeting. We had come to agreement.” Det. Inglis: “…it looked as if we might have come up with a variant of the five-week cycle that would be acceptable.” Det. Scott: “…with that [five of every ten weekends off], I didn’t think that it looked too bad. Other detectives agreed.” While there was consensus by the end of this meeting, the detectives made clear that although they might themselves support the amended 5-week cycle, they did not represent the Association and could not speak for it. In Detective Inglis’s words, “We made it clear, however, that we could not commit the Association. We spoke only for ourselves – that is, those who were at the meeting.” The amended five-week model appears below. As can be seen, one of the two modifications – the increase from two out of five weekends to five out of ten weekends – was accomplished by having one team (that is, one Detective and his or her Detective- Constable partner) switch the day shift on the Saturday of week 3 for the off-day on Thursday of week 3 and the day shift on Sunday of week 3 for the day shift on Friday of week 4, while the other team on the platoon works the Saturday and Sunday; they reverse
7 According to Det. Inglis’s testimony, the 50% leave-draw policy used to be in effect but that, at some time in the past, it was modified to the so-called “10% off” rule; that is, no more than 10% of the personnel could be off at any one time. As noted earlier, this policy did not originate with Supt. Griffiths, but had been in place for some years when he took over as Unit Commander at 31 Division. Clearly, then, an officer has a very much greater degree of flexibility in choosing his or her vacation time when drawing leave only against his or her counterpart, which is the case on the “50%-off” policy. In practical terms, he or she has a 50% change of getting his or her preferred timing as opposed to a 10% under the old policy.
14 this in second five-week period. Over a ten-week period, then, each team receives five weekends off – three in the first five weeks and two in the second five weeks or vice versa, an arrangement made possible by cutting from a full platoon of four officers to two officers (one team) once every fifth weekend. The other modification – changing the leave draw from the collective agreement’s 10% rule to 31 Division’s “draw against your platoon mate” rule (thus, 50%) – is not visible in the graphical depiction of the five-week rotation but was nevertheless part of the “agreement”. Detective Inglis then went about the process of putting the new “amended” shift system on paper. It appears below.
PROPOSED 31 C.I.B. 5 WEEK COMPRESSED WORK WEEK
Week M T W T F S S 1 A A A X X X X 2 X X N N N N N 3 N X X X/D* D D/X* D/X* 4 D D D D X/D* X X 5 X X X A A A A
* One team (i.e. 1 Detective and 1 Detective Constable) would work and one team would be off on alternate cycles.
TOURS OF DUTY
SHIFT NUMBER OF HOURS HOURS OF DUTY D – days 10 6:00 am to 4:00 pm A – Afternoons 9 3:00 pm to 12:00 am N – Nights 9 10:00 pm to 7:00 am
LEAVE DRAW
Draw by platoon – each Detective would draw against the other Detective on his platoon.
LIEU TIME OFF
Lieu time off would be permitted on any shift provided it does not result in less that one Detective on duty.
OTHER C.I.B. UNITS
Youth Bureau, Warrants, Plainclothes, M.C.U. and Frauds would be permitted to work a variant of the five-week system in a manner similar to the current six
15 week cycle and have the same total days off and hours worked, etc.. as the regular Detective Office.
31 C.I.B. – 5 WEEK COMPRESSED (based on the 42 Division models)
M T W T F S S 1 A A A X X X X 2 X N N N N N N 3 N X X X D D D 4 D D D D X X X 5 X X X A A A A
1 A A A X X X X 2 X N N N N N N 3 N X X D D X X 4 D D D D D X X 5 X X X A A A A
TOURS OF DUTY
Shift Number Of Hours Hours
D – DAYS Ten (10) 6:00am to 4:00pm A – AFTERNOONS Nine (9) 3:00pm to 12:00am N – NIGHTS Nine (9) 10:00pm to 7:00am
Each platoon will consist on 2 Detectives and 2 Detective Constables working in teams of one Detective with one Detective Constable.
*On the weekend when a platoon is working DAYS, one of the team may take the Saturday and Sunday off and work their dayshift on the Thursday preceding and Friday following providing that the other team, on the same platoon, works the Saturday and Sunday.
Supt. Griffiths then proceeded to prepare for the process of implementing the amended five-week cycle (that is the five-week cycle with the new leave draw and amended weekends-off feature). He communicated to Len Hazel at Labour Relations that he and his detectives appeared to have agreement on the special new features of the amended five-week cycle; Mr. Hazel then put together a document to reflect the “agreement”, entitled “Pilot Project – Accord on Reviewed Shift Schedule….31 Division”. On March 14, Mr. Hazel, having arranged to meet Association President Paul
16 Walter the next morning, faxed a copy of the new document to Supt. Griffiths at 31 Division, with the following cover sheet.
Al: Give me a call tomorrow morning. I am meeting with Walter at 55 Div. At 9:30. Len
“PILOT PROJECT”
ACCORD ON REVISED SHIFT SCHEDULE FOR CIB PLATOON INVESTIGATORS NO. 31 DIVISION
PREAMBLE
The following provisions briefly describe the nature and the application of the current collective agreement to the members assigned to two-shift duties covered by this Accord, during this Pilot Project.
1. TERM OF STUDY
Officers who are assigned to 7 day/3 shift duties in the CIB Platoon Investigators in No. 31 Division shall be assigned to work in accordance with the Revised Shift Schedule contained herein. Members assigned to other functions encompassed by C.I.B. operations (Youth Bureau, Warrants, Plainclothes, MCU and Fraud) could be included at the Unit Commander’s discretion.
The trial period will commence on 1996 March 18 and terminate on 1997 March 02 thus encompassing a period of 50 weeks. It is understood that the Board may terminate this Pilot Project after consulting with the Study Committee prior to the termination date if major problems are encountered in fulfilling the Board’s obligations without incurring additional manpower costs.
2. REVISED SHIFT SCHEDULE
a) The Shift Cycle and tours of duty to be made during the Revised Shift Schedule is to be of a type in accordance with the following general description.
(i) The cycle will consist of five weeks. The members will be scheduled to work 21 days and will be scheduled for 14 days off during this five-week cycle.
17 (ii) All tours of duty are nine or ten hours in length. As in the present system there can be flexibility in starting and finishing times depending on the requirements of any given day or project.
(iii) The arrangements of days worked to days off, the number of days worked in a row, the number of days off in a row and the number of days worked on any given shift will be at the discretion of the Unit Commander having regard to the needs of the partic ular unit or of the member working in the Revised Shift Schedule.
b) Due to the special aspects of the work of members of the CIB Unit it is agreed to continue under the Chief’s discretion the past practice with respect to changes in their work schedules. Where such changes are necessary, it is understood that efforts will be made to maintain the tours worked to days off ratio in the five week cycle in which such changes are effected, without the need for alterations to renumeration or the reduction of hours.
3. THE “CYCLE”
M T W T F S S 1 A A A X X X X 2 X N N N N N N 3 N X X X/D* D D/X* D/X* 4 D D D D X/D* X X 5 X X X A A A A
TOURS OF DUTY
Shift Number of Hours Example
D – DAYS Ten (10) 6:00 am to 4:00 pm
A – AFTERNOONS Nine (9) 3:00 pm to 12:00 am
N – NIGHTS Nine (9) 10:00 pm to 7:00 am
10. STUDY COMMITTEE
The Study Committee will comprise of two representatives of the Association and two representatives appointed by the Board and the Committee will monitor this Accord, consider problems which may arise and make recommendations to the parties. Such Committee acting unanimously shall have full power to alter, amend, delete or supplement the terms of the Accord.
18 The Meeting of Thursday, March 14 Supt. Griffiths removed the fax-transmission cover sheet, made copies for the detectives, gave a copy to Det. Sgt. Corrie, and told him that this was the new shift that would be commencing unless Len Hazel advised otherwise as a result of his meeting with Paul Walter the next day. Later that day, again during the afternoon shift, Supt. Griffiths called an impromptu meeting of detectives present in the building at which he announced that the new five-week system was going to go into effect on the following Monday, March 18. He passed out copies of the redrafted amended five-week cycle that Len Hazel had sent. The evidence as to what then transpired is a little fuzzy, but my conclusion is that there was relatively little discussion of this announcement at the meeting. Detective Inglis testified that he proposed that implementation of the new five-week system be delayed for another five weeks, at which point its commencement would coincide with the commencement of the six-week system. 8 However, Supt, Griffiths decided to go ahead with implementation the following Monday. The Association (Paul Walter) was contacted by Detective Randy Scott after the meeting. Paul Walter testified that he tried to get hold of Supt. Griffiths, but was unable to do so. It should be noted that there was another difference between the document which set out the new five-week system and the old 3 District Accord. In the original Accord, detectives assigned to the specialized bureaux such as fraud, youth, etc., were unequivocally included in the compressed work week; in the new one, however, such personnel “could be included at the Unit Commander’s discretion.” Det. Inglis was particularly concerned about this (because he headed up the Fraud Office and wanted to make sure that his office was included in the new cycle) and raised it at the March 14 meeting with Supt. Griffiths, who assured him that such officers were to be included.
The Meeting of Friday, March 15 There is conflicting evidence on what happened on this day and, indeed, about whether this meeting ever took place. Len Hazel testified that on Friday, March 15, he met with
8 Thus greatly easing adjustment difficulties for the officers on shift, as well as giving people enough time to adjust to the new system.
19 Paul Walter at 55 Division to discuss the 31 Division situation. At the hearing, Mr. Walter at first denied that he could remember any such meeting; in fact, he insisted that he did not become aware of the “amended” five-week cycle (as “agreed to”9 at the March 6 meeting) until April 22. However, when pressed in cross examination, he admitted that such a meeting might have taken place earlier. Mr. Hazel testified that he and Mr. Walter went over the newly redrafted “Accord on Revised Shift Schedule for CIB Platoon Investigators No. 31 Division”, which he had faxed to Supt. Griffiths the previous day. According to Mr. Hazel, Mr. Walter suggested corrections or changes to the document which Mr. Hazel put in by hand. Mr. Hazel testified that he did not intend to have this document signed, but said in his evidence that he told Mr. Walter that he would follow up with a letter to indicate that he and Paul Walter were a Study Committee and that they had unanimously agreed that this amended five-week cycle (with Mr. Walter’s penciled-in changes) was going to go into effect. In his evidence, Mr. Hazel said that he could not remember if Mr. Walter had mentioned anything at this meeting about the need to have a vote but that, in any event, it didn’t matter; that was an internal Association matter and, in any event, a Study Committee had unanimously approved the new cycle. As noted, the evidence is contradictory on whether this meeting took place or not. However, in view of the fact that Mr. Hazel’s account – that, at least, a meeting took place - is corroborated by both Supt. Griffiths’s testimony as well as the fax cover sheet of March 14 which refers to a meeting the next morning with Mr. Walter, I find as a fact that such a meeting did take place and proceeded more or less as Mr. Hazel testified – that is, with Mr. Walter making a request for some changes and Mr. Hazel writing directly into the working draft. I have some difficulty, however, with Mr. Hazel’s characterization of Mr. Walter as having agreed unconditionally to approve the five-week cycle for 31 Division, but I will comment on this more fully in the second part of this award. Superintendent Griffiths testified that, pursuant to the fax of the previous day (covering the modified “agreed-upon” five-week cycle), he called Mr. Hazel and that Mr.
9 As noted earlier, the phrase “agreed-to” is simply used as a descriptor of the cycle as modified at the March 6 meeting at 31 Division
20 Hazel told him that the shift system would go into place and that Paul Walter had no problem with it. He also testified that he advised Deputy Chief Cann that Mr. Hazel approved from the Labour-Relations point of view, of going to the amended five-week cycle and that she concurred that this was what should be done. In any event, the amended five-week system went into effect the following Monday, March 18. According to Detectives Inglis and Scott, people weren’t very happy with it – or, at least, with the speed of implementation – but were resigned to the fact that, if Supt. Griffiths had made up his mind on the five-week system, then this modified system was about as much as they could expect, given that it provided half of the weekends off and the 50% leave-draw rule.
The Paul Walter Letter and Ballot Package of April 18 On April 18, Paul Walter sent Len Hazel the following letter.
Please find attached a copy of a package which was delivered today by myself and Al Olsen to the members of 31 Div. C.I.B. affected by the proposed Revised Shift Schedule. The ballots will be counted on Friday, April 26, and we will inform you of the result of the vote at that time.
Attached to Mr. Walter’s letter of April 18 was the following letter to 31 Division detectives, together with the shift schedule, which is reproduced below it.
Dear Member:
Unfortunately, the terms of the 1987 R.S.S. Accord were not complied with and a revised system of shift rotation – 5 Week Cycle – has been implemented in your unit….
….ballots counted on Friday, April 26, 1996.
Fraternally,
Paul Walter Al Olsen
PROPOSED REVISED SHIFT SCHEDULE
31 DIVISION C.I.B. OFFICE
(Detectives and 3 Year Detective/Constables)
21 M T W T F S S 1 A A A X X X X 2 X N N N N N N 3 N X X X D D D 4 D D D D D* X X 5 X X X A A A A
TOURS OF DUTY
SHIFT NUMBER OF HOURS EXAMPLES
D – Days Nine (9) 7:00 am to 4:00 pm A – Afternoons Nine (9) 3:00 pm to 12:00 am N – Nights Nine (9) 12:00 am to 9:00 am D – Days* Eight (8) 7:00 am to 3:00 pm
As can be seen, the shift system set out above was not the correct one - that is, not the one “agreed to” in the meeting of March 6. Paul Walter testified that he had simply taken the schedule that had been attached to Len Hazel’s letter of February 22 - itself a mistake - and attached it to his letter to the 31 Division detectives. (It will be remembered, in this regard, that Mr. Walter denied in his evidence that the March 15 meeting with Mr. Hazel took place.) The fact that the wrong schedule was attached to the ballot package was discovered just before the voting was to begin – Det. Scott saw the Paul Walter letter, looked at the attached schedule, saw that it was not the schedule that was “agreed to” at the March 6 meeting and announced and handed out at the March 14 meeting, and that had been in effect since Monday, March 18. He immediately phoned Paul Walter to advise him of the mistake. Mr. Walter then called Det. Sgt. Corrie, advised that the shift system that appeared in the ballot package was incorrect, and asked that he not accept any ballots. The vote was called off.10 Det. Sgt. Corrie then faxed Mr. Walter a copy of the correct shift system. The message on the fax cover sheet read: “As per our phone call. Please let me know what you think about it. Thanks”.
10 For ease of understanding, I should perhaps note at this point that no vote was ever taken. 22 The inclusion of the wrong shift cycle with the ballot package and the aborting of the vote signaled – and probably caused – a change in the mood of the detectives and in the dynamic of the process; in the words of Staff Inspector Marrier and Det. Sgt. Corrie, the detectives suspected that “management was trying to pull a fast one”. The optimism and “buoyancy” (to use Det. Sgt. Corrie’s term) that had characterized the attainment of an acceptable five-week cycle now gave way to suspicion and caution.
The Meeting of April 26 On Friday, April 26, Association President Paul Walter and Vice President Jack Ritchie attended at 31 Division for the purpose of meeting with the divisional detectives over the shift schedule situation. Supt. Griffiths heard that Paul Walter was in the building and went to welcome him. According to Detective Inglis, Mr. Walter made it clear that, if the 31 Division detectives agreed with the amended five-week cycle, then the Association would not oppose it. It was agreed, in this respect, that it was now important to informally determine the detectives’ feelings in this matter. Detective Graham Hanlon was asked, and agreed, to conduct an informal poll of the detectives. It was at this point that the issue arose as to who, in fact, should have a say in this matter. This question had two dimensions: first, whether it should be both the detectives working in the general detective office (who were working three shifts, 7 x 24) and the detectives in the various specialty bureaux (who were working only two shifts) or just the former; second, whether it should be the Detectives and all Detective Constables or just those Detective Constables who were assigned to 31 Division detective operation on a permanent basis.11 (However, it should be noted that Det. Hanlon’s canvassing of the detectives ultimately only reflected the first of these questions.) In addition, according to Detective Inglis, he and Detective Randy Scott were nominated, and agreed, to act as members of a “Study Committee”. According to Detective Scott’s evidence, he was appointed to “some sort of committee…to work with Paul Walter and to keep the 31 Division detectives informed.”
11 That is those “permanently” assigned or those “temporarily” assigned.
23 Detective Hanlon conducted his unofficial polling and prepared the following “Information Package and Informal Ballot Relating to the 31 Division CIB Shift Schedule,” the covering page of which is reproduced below.
GENERAL INFORMATION ON THE 5 AND 6 WEEK SHIFT SCHEDULES
On Friday April 26, 1996, a meeting was held with representatives from the Police Association, Paul Walter, Jack Ritchie and CIB Officers, to discuss the recent shift schedule changes that have taken place with 31 Division CIB.
It should be noted that their opinion, based on the facts presented, is the change in schedule should have been the subject of a vote Prior to the change taking place and that the change implemented is a Breach of the working agreement.
Having said that, they do not want to interfere with this change if it is acceptable to the majority of CIB personnel, provided a formal vote is held to legally ratify this change.
In order for the Association to put forth a position held by the majority of personnel in the CIB a consensus of opinion has to be reached.
A decision was made to put an informal ballot to the officers comprising the entire CIB, to determine which shift schedule is more acceptable to the members.
This informal ballot will be used as a guide by the Association representatives in discussions with Labour relations and the Unit Commander.
One other issue that has to be determined is who should have a vote in the final decision.
This has resulted in question #2 being proposed in the same informal ballot.
I have attached a copy of each schedule, marked as Appendix A & B as well as a copy of the informal ballot. Due to time constraints, it is important that the ballot be returned no later than Friday May 3, 1996.
Once the ballots have been counted the results will be sent to the Association in the form of a letter along with the ballots.
Finally, it was concluded, that for an informed decision to be made, the pros and cons of each shift schedule should be explained. I have included a list for your perusal. The list was compiled with input from other officers and outlines the major issues.
Return the ballots to the attention of Det. Graham Hanlon in an envelope marked personal & confidential no later than Friday May, 3, 1996.
24 Attached to the foregoing page was Detective Hanlon’s comparison of the six-week and five-week systems, under the title, “Pros and Cons 6 Week Schedule versus 5 Week Compressed (Modified). As part of this, Detective Hanlon included schematics of both systems. The five-week system portrayed and compared here was the five-week cycle as modified and “agreed to” at the March 6 meeting. On May 5, Detective Hanlon reported to Paul Walter as follows.
Dear Paul:
Further to the meeting held at 31 Division on Friday, April 26, 1996, I wish to advise you of the following information.
As you are aware I agreed to put forth an informal ballot to the members of the 31 Division CIB to ascertain if a consensus of opinion could be reached in relation to the issue of the work schedule preferred by members at 31 Division CIB.
In addition a discussion was also held with respect to who should be permitted to vote on this issue.
With this in mind I forwarded an informal ballot to the 43 members of the CIB including officers from the Major Crime Unit, Fraud, Youth Bureau and Plainclothes offices as well as the Detective office itself.
The ballot contained the following two questions:
Question 1: Provided that both shift schedules are adequately staffed, which shift schedule would you prefer to work? Answer: A) The six week schedule – Appendix A B) The five week schedule – Appendix B.
Question 2: Due to the fact that their shift schedules are minimally affected, should officers from the Frauds, MCU, Youth Bureau & Pl/Clothes Offices be permitted a vote in the final decision of which shift schedule is acceptable. Answer: A) Yes they should be permitted to vote B) No they should not be permitted to vote.
In addition to the informal ballot, each office received a cover letter, a copy of each shift schedule as well as an information package containing a discussion of the pros and cons of each schedule.
Of the 43 ballots sent out 40 were returned with 1 voter abstaining on question 1. The results have been broken down into three separate categories.
25 The first is the CIB Office itself which includes the officers assigned to the main Detective Office, the second is all officers assigned to other functions in the CIB, while the third is the grand total.
1) CIB Results : Question 1: A) 11 B) 7 Question 2: A) 2 B) 16 2) Other Offices: Question 1: A) 5 B) 16 Question 2: A) 17 B) 5 3) Grand Total: Question 1: A) 16 B) 23 Question 2: A) 19 B) 21 The results show a slim majority of the officers feel the main CIB office should determine which shift schedule is implemented.
In reviewing question 1, it is clear the officers in the CIB office favour the six week shift schedule while the officers from other units are in favour of the five week compressed work week.
While this informal ballot does not answer all the questions raised during the discussions it does provide you with some idea of the opinions of a majority of the officers.
I have the original copies of the ballots and will retain them for use if they are required.
I trust this information assists you in any negotiations you may undertake on behalf of the officers at 31 Division CIB.
I look forward to hearing from you at your earliest convenience should you wish to discuss these matters further.
Sincerely yours,
Graham Hanlon
c.c. Mr. Jack Ritchie Det. Randy Scott Det. Bill Inglis
26 It is interesting to again note, as Det. Hanlon did in the foregoing report, that the result – that is the preference for either the six-week cycle or the modified five-week cycle – depended upon the voting constituency: if only C.I.B. officers were polled, then there was a slight preference for the six-week cycle; including both C.I.B. and the detectives from the specialty bureaux gave the opposite result. There was nothing more in evidence which pointed to any further developments until the setting up of a joint Association-management meeting at the Police Association building on July 2 in order to discuss the shift cycle problem at 31 Division C.I.B.
The Meeting of July 2 This was a joint management-Association meeting, present at which were Paul Walter, Detectives Scott and Inglis for the Association, and Staff Inspector Marrier and Paula Fairman (Labour Relations Analyst from Headquarters) for management. For the second time in this chronological sequence of events, the parties’ evidence diverges somewhat. Witnesses for both parties agreed that there was some general discussion about the unacceptability of management unilaterally changing to the amended 5-week cycle and the vote to be taken – or retaken – by the Association and, in particular, what the appropriate voting constituency should be. The two parties’ witnesses’ memories diverge, however, on what was supposed to happen as a result of, or after, the July 2 meeting. Paula Fairman and Staff Inspector Marrier testified that the no particular action was to be taken by either of them (or anyone else in management). Detective Inglis also testified that nothing in particular was agreed to and could not remember if there was any specific plan of action to be taken. Detective Scott, on the other hand, testified that Ms. Fairman and Staff Inspector Marrier said that they would try to “work around” the members’ concerns and come back with a proposal. Paul Walter testified that he believed another draft of the shift system would be developed by Labour Relations for further discussion purposes. The next day, July 3, Detective Scott sent the following memorandum to the detectives of 31 Division by way of keeping them up to date. It reflects what appears to be a third interpretation of what was decided at the July 2 meeting.
On Tuesday 2nd July 1996 at 13:30 hrs, a meeting was held at the MTPA build ing regarding the proposed 31 C.I.B., 5 week compressed work week. 27 Present at this meeting was Det. Scott and Det. Inglis of 31 Detective Office, Paul Walter of the M.T.P.A., A.Superintendant S. Marrier of #31 Division, and Paula Fairman, analyst of Labour Relations, Police Services Board (P.S.B.)
During this meeting, the concerns of the members of the 31 Division C.I.B., Detective Office and the Association regarding the presently proposed 5 week compressed work week were relayed to A/Superintendent Marrier and Ms.. Fairman.
As a result, the Association and the P.S.B. will meet further to review the proposed contract language. When this has been completed, a new proposal will be submitted by the P.S.B.. This proposal will be reviewed then mailed to each individual concerned for a vote.
The implementation of whichever shift is voted in will commence on September 9, 1996.
If you require any further information regarding the above, please contact either Det. Scott 7220 or Det. Inglis 6697.
The Griffiths-Walter Encounter of August 1996 In mid-August, Supt. Griffiths and Paul Walter had a chance encounter in the headquarters of the Metropolitan Toronto Police Service in downtown Toronto. According to Supt. Griffiths, he asked Mr. Walter if he had figured out how to have the vote and that Walter indicated that it was still a problem. Supt. Griffiths asked Mr. Walter if he had a problem with the Accord, to which Mr. Walter responded that, no, the problem was with the vote. Mr. Walter, on the other hand, testified that he did not remember telling Supt. Griffiths that the Accord was all right; rather, by this point (the August meeting), reversion to the old six-week schedule was the desired option.
The Negotiation Session of August 9 Mr. Walter testified that, after the July 2 meeting, the locus of negotiations switched to the bargaining table 12 and that, at a negotiation session in the fall of 1996, he made it clear that the Association wanted to switch back to the six-week cycle at 31 Division C.I.B. and that the Board bargaining team agreed that that would happen.
12 Negotiations for a new collective agreement, by coincidence, had started that summer.
28 Mike McGuire, who in 1996 was Director of Human Resources, confirmed in his testimony that the 31 Division shift issue was raised at the bargaining table by Paul Walter, but was most definite that management had not agreed to go back to the six-week cycle. Rather, in the larger context of a discussion on shift systems more generally, Mr. Walter said that the new 31 Division schedule was not consistent with the collective agreement. The-then Chair of the Police Services Board, Maureen Prinsloo, undertook that Mr. McGuire would “investigate what the issues were”, according to his testimony. Ms. Prinsloo herself gave evidence at the hearing. She testified that Paul Walter had raised the 31 Division issue, not as a specific proposal, but as an example of a larger problem – that is, shift systems that did not conform to the requirements of the collective agreement. She was quite specific and emphatic in her testimony that no commitment was made to revert to the six-week system; indeed, she said that the bargaining committee would not have had the authority to make such a commitment without Police Services Board approval, and there was not even a commitment to go to the Board with any proposal to revert to the six-week schedule. Rather, her testimony agreed with Mr. McGuire’s on this point: he was asked to look into the situation. This discussion was reflected in the minutes of the August 9 negotiation meeting, the relevant portion of which is set out below.
Mr. McGuire indicated that both sides have the right to know what is going on out there regarding the number of different schedules. The parties involved should be the Association, Management and Labour Relations.
Mr. Walter noted that there have been interpretation problems such as No. 31 Division Detective Offices where members were only given 3 days notice to change from a 6 shift operation to a 5 shift operation. Members have the right to vote on the system that they want.
Ms. Fairman stated that this was a manpower issue and that Staff Inspector Marrier stated that he cannot man a 6 week cycle.
Mr. Walter indicated that manpower is not an issue.
Mr. McGuire asked if both sides would provide an undertaking to resolve the issues.
Mr. McGuire indicated in his testimony that he knew that no Association vote had been taken.
29 The Post-August 9 Developments As a result of this interchange, according to Mr. McGuire’s testimony, he inquired of Len Hazel as to the 31 Division shift situation. Mr. Hazel told him about the aborted vote, and said that the new system had gone into effect without a vote, and that he (Mr. Hazel) felt that “the notice to Paul Walter” – presumably, the amended “agreed-upon” shift cycle discussed on March 15, but that is not entirely clear – was sufficient to meet the terms of the collective agreement requiring the change to be referred to a Study Committee. Mr. McGuire also met with Supt. Griffiths to be briefed on the situation from his point of view. Supt. Griffiths was simply trying, in Mr. McGuire’s words, to make a good-faith effort to both abide by the collective agreement and meet the needs of both the detective operations and the detectives themselves. In the end, they decided that to revert to the six-week cycle would be to impose a “change of a change”, which would simply exacerbate the problems. As a result, then, they decided to leave the amended five-week cycle in place. During this time, Mr. McGuire also had some discussions with Paul Walter who, according to Mr. McGuire, said that he would take the matter under advisement and get back to him. He did this, later in the fall, at the end of which conversation, Mr. McGuire testified, “I think I advised him to file grievances.” Mr. McGuire explained this advice in terms of Mr. Walter’s concerns – to represent the concerns of those who were unhappy with the amended five-week cycle – and his own interest – namely, to help management properly cover their operational requirements. It was after this that the Association filed for mediation. Paul Walter’s letter of October 18 sets this out. Notwithstanding my numerous discussions with members of the Labour Relations Unit and yourself and the undertaking given by your representatives at negotiations, it appears that the service continues to violate the terms of the collective agreement by unilaterally changing the compressed work week cycle in place in 31 Division Detective Office.
Please be advised that we have referred this matter to conciliation to accelerate resolution.
The grievance was spelled out on the regular Solicitor General’s “Request for Appointment of a Conciliation Officer” form in the following terms.
30 The Metropolitan Toronto Police Service has unilaterally altered the revised shift schecdule in effect in 31 Division Detective Office (CIB) contrary to the terms of the accord on Revised Shift Schedule (attached herewith) for CIB members in 3 District and contrary to the collective agreement. The Metropolitan Toronto Police Association requests that the original 6 week/cycle accord be reinstated with all attached conditions.
The parties went through conciliation, which was not successful and attended an arbitration hearing convened for this purpose on July 13, 1998, which adjourned sine die in order to give them an opportunity to resolve the issue themselves. This was not successful, so we reconvened the hearing on May 3, 1999.
Award
In their submission, the parties identified five ways in which the new five-week cycle could have replaced the old six-week cycle without a violation of the collective agreement. I agree that these constitute an exhaustive list of the possibilities; if none of the following can be said to have been true, then I must find for the Association and allow the grievance. 1. A new schedule could have been negotiated during the regular bargaining session for the renewal of the agreement.
2. The parties could have executed a new schedule in the form of a formal memorandum of agreement.
3. A Study Committee, pursuant to Clause 9 of the 3 District Accord, could have unanimously agreed to change the shift schedule.
4. The Association could have led the employer to believe that the new five week schedule was accepted by the Association, and the Association is now estopped from claiming an employer violation of the 3 District Accord.
5. The employer established the new shift system and was empowered to do so under Article 5.02 of the collective agreement, the first line of which is, “Subject to the requirements of the Service, in the discretio n of the Chief of Police: (a) the normal tours of duty will be as follows…”
Clearly, neither the first nor the second foregoing conditions were satisfied and therefore both can be eliminated immediately; the issue turns on whether or not the third, fourth or fifth of the foregoing can be said to have taken place. The employer argued that all three
31 were the case. The Association argued that none was satisfied. Let me deal with each of them in turn.
1. Did a “Study Committee” Approve the New Cycle? The employer argues that Paul Walter and Len Hazel constituted a Study Committee at their meeting of March 15, that agreement was reached, and that that agreement was “Exhibit 28”, the document drafted up by Len Hazel reflecting the version of the five week cycle “agreed-upon”13 at the 31 Division meeting on March 6, with the hand written amendments requested by Mr. Walter. In the context of the very casual and unsystematic approaches that the two parties had drifted into for purposes of modifying shift systems across the Force, counsel for the Board argued, the Hazel-Walter meeting of March 15 did in fact constitute a Study Committee meeting, despite the fact that it involved only two people and did not result in the signing of a document or any sort of follow-up letter confirming agreement. For its part, the Association argued that, at best, Exhibit 28 could only be considered as an interim agreement, subject to approval by means of a vote of those affected. As noted, the evidence with respect to the March 15 meeting is contradictory; Mr. Walter denied that it ever took place, and Mr. Hazel testified that it did, but that he didn’t know whether or not Mr. Walter had mentioned anything about the need for a vote. I have found on the evidence, as a matter of fact, that it did take place, and that the changes to the already-amended five-week cycle were discussed and noted. Be that as it may, however, there are a number of difficulties with the Board argument that Paul Walter and Len Hazel constituted a Study Committee and that there was a firm and final deal on March 15. First, however informal the Study Committee mechanism had become, I find it unlikely that Mr. Walter and Mr. Hazel both clearly viewed themselves as a Study Committee making on that day a firm and final determination of the 31 Division move to a five-week cycle. Mr. Hazel may well have done so, but that is not sufficient to make it so for Mr. Walter, as well. I agree with Mr. Aveling when he points out that Mr. Walter was a very experienced Association leader
13 As in the previous part of this award, I use “agreed-upon” simply as a descriptor of the five-week cycle as it was amended at the March 6 meeting.
32 and it seems at least improbable that, particularly after Detective Scott’s call the previous afternoon and recognizing that the move from a six- to a five-week cycle was not a trivial change, he would commit the Association irrevocably without at least taking the precaution of doing some additional checking with the 31 Division detectives. Second, there is another detail that does not jibe with the conclusion that the hand-amended draft of the “agreed-upon” five-week cycle (Exhibit 28) constituted an agreement of a Study Committee: it was never properly redrafted so that Mr. Walter’s suggested amendments, noted by Mr. Hazel in his hand, were incorporated into the typed text. One would think that would have happened, had there actually been a deal that Friday; indeed, had that been the case, the sensible and appropriate action would have been for Mr. Hazel to have the changes typed into the text, and then send the amended version to Supt. Griffiths at 31 Division so that he could distribute it to the detectives and properly represent it as a version of the new cycle jointly agreed-upon by management and the Association. In the evidence submitted by the Board to demonstrate the informality of the Study Committee process, however varied and informal the change, there was at least one accurate written version of the proposed change(s). Here, there was none. Third, there was also apparently no follow-up letter, which Mr. Hazel testified he intended to send. Thus, there was no administrative follow-up at all in the form of a letter or a signed and/or corrected version of the new cycle. Taking all of this into account, I have grave reservations about whether or not it was clear in both Paul Walter’s and Len Hazel’s minds that the meeting at 55 Division on Friday, March 15 was, in fact, a Study Committee, and that they were agreeing in an irrevocable fashion to the implementation of the amended five-week cycle. Be that as it may, however, if Mr. Hazel and management believed there was a deal on March 14-15, Mr. Walter’s letter of April 18 together with the voting package would have put paid to such a belief. For ease of reference, this letter is set out again. Dear Len, Revised Shift Schedule – 31 Division C.I.B.
Please find attached a copy of a package which was delivered today by myself and Al Olsen to the members of 31 Div. C.I.B. affected by the proposed Revised Shift Schedule. [emphasis added]
33 The ballots will be counted on Friday, April 26, and we will inform you of the results of the vote at that time.
Yours truly…
The cover page for the enclosed ballot made the Association’s position absolutely clear.
Dear Member:
Unfortunately, the terms of the 1987 R.S.S. Accord were not complied with and a revised system of shift rotation – 5 week cycle – has been implemented in your unit. We are anxious to meet with our counterparts on the study committee to review the proposed language. Of course, prior to this contract language being finalized, your unit must vote on and approve the Revised Shift Schedule (copy attached).
Also please find enclosed a ballot to either accept or reject the revisions to your work cycles….
Hence, whatever Mr. Hazel (and, thus, Supt. Griffiths and the rest of management) may have understood about whether or not the Hazel-Walter meeting of March 15 constituted a Study Committee meeting and the hand-modified version of the five-week cycle an agreement, there can be no argument that, after receiving Paul Walter’s letter and the accompanying ballot package, management could still believe that there was Study Committee agreement. I find it highly improbable that, on the morning of March 15, both Mr. Hazel and Mr. Walter believed that they constituted a Study Committee and that that Mr. Walter knowingly and irrevocably committed the Police Association to acceptance of the modified five-week cycle for the 31 Division detectives. I can draw no firm conclusion on whether or not Mr. Walter mentioned the need for a vote at this meeting; Mr. Walter denied that the meeting occurred and Mr. Hazel said he could not remember any mention of the need for a vote. On the other hand, in his testimony, on numerous occasions, Mr. Hazel was quick to dismiss the vote as an internal Association matter, political in nature, but completely irrelevant to the Board, given that the Board had the power, under Article 5.02 of the collective agreement, to amend the shift system anyway. 14 In other words, it is certainly possible that Mr. Walter did make mention of a vote, but that Mr. Hazel,
14 In which case, according to Mr. Hazel’s view, in the event that the vote was negative, management would invoke its power under Article 5.02 and simply revert to the old eight-hour shift/40-hour week.
34 given his attitude towards a vote, his assumption that any vote would be both perfunctory in nature and positive in outcome, and his distracted state of mind, either forgot or dismissed it from his mind, and so did not inform Supt. Griffiths. I therefore can draw no conclusion about the explicit mention of a vote and exactly when, in this sequence of events, the requirement for a vote first arose as an issue. It may have been as early as March 15 but, in any event, it was no later than April 18. However, I do draw a conclusion that Mr. Walter did not knowingly agree in an unequivocal, unconditional, and irrevocable way to the “agreed-upon” amended five week cycle for the 31 Division C.I.B. at the March 15 meeting with Mr. Hazel. Even if he had, however, the letter and ballot package of April 18 made absolutely clear that the Association had changed its mind - which, in the time context of this case, for practical purposes amounts to the same thing as having never agreed. Accordingly, then, we can eliminate the argument that the Hazel-Walter meeting March 15 was a Study Committee as a ground on which to dismiss the grievance. I find that that meeting cannot be considered to have been a Study Committee that agreed to the changed cycle or, if it was (however unlikely that was), the Association clearly signaled a change of mind within one month.
2. Should the Association be Estopped from Claiming that the Agreement Was Violated? Let me now turn to the argument that the Association led the Board to believe that the new five-week cycle was acceptable and should now be now estopped from asserting that the agreement was violated. Let me test this argument by matching the facts of the parties’ actions and other facts against the elements of the doctrine of estoppel. It seems appropriate to start by setting out that doctrine.
The general rule is that where a man by his words or conduct, willfully or by negligence, causes another to believe in the existence of a certain state of things and induces him to act on that belief so as to alter his own previous position to his detriment, the former is precluded from denying the existence of that state of facts. The essential factors giving rise to an estoppel in pais (by conduct) are (1) a representation intended to induce a course of conduct on the part of the person to whom the representation was made; (2) resulting from the representation, an act by the person to whom it was made; (3) detriment to such person from the act….(Canada Packers, 17 L.A.C. 60 (Reville, 1966)).
35 Counsel for the Board argued that, in the case at hand, the representation consisted of a number of elements: the detectives’ apparent agreement at the March 6 meeting at 31 Division; Paul Walter’s agreement in his dealings with Len Hazel and, in particular, at the meeting at 55 Division on the morning of March 15; the Association’s failure to protest or give any indication that there was a problem before the meeting on July 2; and the acceptance by the 31 Division detectives of the benefits of “the agreement” – namely, the 50% leave-draw rule. The employer’s reliance on this representation took the form of giving (and continuing to give) the benefits of “the deal” – namely, the 50% leave draw and the missing of an opportunity to raise the 31 Division problem in negotiations. For its part, the Association argued that several elements in the “representation” emanated, not from the Association, but from the detectives at 31 Division, who could not speak for the Association. Counsel for the Association also argued that estoppel is an argument only if I find that there was no agreement (which I have done). If there was no agreement, then what was Paul Walter alleged to have represented? The Association argued also that the new five-week system went into effect, not because of any representation by Paul Walter, but because of Supt. Griffiths’s insistence that it had to start on March 18. The Police Services Board must have known there would be some risk to “rushing ahead” on that date – some risk that the vote would turn it down. Finally, the Association argued that there is no real detriment to the Board in all of this. I believe that there are significant problems with the estoppel argument. First, and perhaps most important, is the question of the Association’s representation to management that changing to the five-week cycle was acceptable to it. According to the Board’s argument, the first element in the Association’s representation was the apparent agreement of the 31 Division detectives at the March 6 meeting. There are two problems with this: first, they did not represent the Association and, second, Detective Inglis explicitly reminded Supt. Griffiths of this fact at the meeting. Second, while I have found as a fact that the Walter-Hazel meeting of March 15 did take place and that the “agreed-upon” modified five-week shift cycle was reviewed and amended, I have also found that Paul Walter did not unconditionally and irrevocably approve the move to the five-week cycle at his meeting with Len Hazel on the morning of
36 Friday, March 15, given the non-trivial nature of the changes that were being contemplated and the fact that he knew there was some concern on the part of the detectives, at least with respect to the speed of implementation. However, even if Mr. Hazel was correct that Mr. Walter had unequivocally and unconditionally agreed to the five-week cycle at the March 15 meeting and so reported that to Supt. Griffiths, management’s belief that they had a deal could not have withstood Mr. Walter’s memorandum of April 18 with its attached ballot package; together, they make it absolutely clear that the deal must be ratified by those affected, and the implication of what will transpire in the event that it is turned down is unmistakable. While the evidence strongly suggests that Mr. Hazel did not advise Supt. Griffiths of the receipt of Mr. Walter’s letter and sample ballot package, the responsibility for that is not the Association’s; the Association advised management of the fact that a vote was going to be taken. As well, the evidence makes clear that all of the detectives at 31 Division received a copy of the package, with its covering memo, and we know that Det. Sgt. Corrie, at least, knew of the package because he knew it contained the incorrect cycle. In any event, Supt. Griffiths admitted in his testimony that he became aware in mid-April that there was going to be a vote, although he was not advised by either Labour Relations (i.e. Len Hazel) or the Association. Finally, the informal survey document put together and circulated by Det. Hanlon spelled out it yet again. While this latter document was intended for the detectives and not for management, it is likely that it ultimately came to Supt. Griffiths’s attention. In any event, that does not matter, since it is clear that management was made aware in mid- April – at the latest - that the Association was going to hold a vote on the acceptability or otherwise of the five-week cycle. That would have been reinforced by the vote itself; while the vote was aborted, it at least should have been a reminder to management of the fact that a vote was going to be taken. It does not make sense to suppose that Supt. Griffiths, on one hand, knew about the vote but, on the other hand, just assumed it away as inconsequential, as a matter for the Association only. (Or, if he had just assumed it away, he would have been mistaken.) In such a situation, one could not reasonably just ignore the question as to what would happen if, in a vote of the detectives, the “agreed upon” shift cycle were turned down.
37 That there was Association concern over the new cycle would have been reinforced yet again with the April 26 visit of its President, Paul Walter, to 31 Division because, although he did not meet with him, Supt. Griffiths personally welcomed him to the Division. So it is not correct to say, as the Board argues, that there was complete silence from the Association between the implementation of the five-week cycle on March 14 to the July 2 meeting. The most that can be said – and this is assuming that Paul Walter really did commit the Association irrevocably at the March 15 meeting, which I doubt - there was a four-week silence, from March 14 to April 18, and then several reminders that, in fact, the Association was canvassing those affected to see if they would approve the change and so remedy what, up to that point, the Association characterized as the Board’s non-compliance with the 3 District Accord. Overall, then, management became aware of the fact that there was no final agreement about one month after the five-week cycle went into effect, and certainly no later than April 22, the day of the aborted vote. From that point on, there were the Association meeting with Paul Walter attending on April 26, the July 2 meeting at the Association building, and the discussion during collective bargaining on August 9, the encounter between Supt. Griffiths and Mr. Walter at police headquarters in mid-August, and the discussions that ensued from the bargaining-session discussion that subsequently took place between Mike McGuire, Paul Walter, and Supt. Griffiths; all of these were (or should have been) signals to management that the five-week cycle at 31 Division was still very much up in the air. Moving on to the question of reliance, I agree with the Board’s argument that the element of the detrimental reliance was Supt. Griffiths’s offer, the detectives’ acceptance, and the implementation of the 50% leave-draw rule. The evidence is clear and consistent that that policy change was a concession made by Supt. Griffiths in order to “get a deal” with the detectives of 31 Division. While it was not argued explicitly, it would seem to me that the rejigging of the five-week cycle in order to give five out of every ten weekends off also could be thought of in terms of detrimental reliance, given that that was accomplished by reducing coverage to one team (i.e. two people) on the Saturday and Sunday day shifts once every fifth week.
38 On balance, however, the case for the Association’s representing to management that the change to the five-week cycle just cannot be made, given that, when matched carefully against the facts, the Association just cannot be said to have represented to the Board that it accepted the move to the five-week cycle in the 31 Division C.I.B. Thus, the estoppel argument must also fail.
3. Was the New System Imposed under the Discretion of the Chief of Police? Let me finally turn to the argument that management could change to the five-week cycle at 31 Division without breaching the 3 District Accord by virtue of the fact that Article 5.02 of the collective agreement makes the entire shift provision subject to the needs of the service at the discretion of the Chief of Police. Mr. Stewart, for the Board, argued that the reference to “requirements of the service” and the Chief’s discretion is, and has been, a trump card that the Board has tried not to use with respect to the modifying of shift schedules, preferring instead to work out a mutually agreeable mechanism with the Association. However, the authority still resides in the words of the introductory sentence of Article 5.02. He cited two awards rendered by Mr. Weatherill for these two parties, both of which turned on the arbitrator’s intepretation of this particular language. For his part, Mr. Aveling argued that, under the 3 District Accord, the discretion of the Chief is limited to varying the starting time of a tour of duty. Alternatively, if the Chief has a wider discretion than this, it is the discretion to vary the shift system within the same basic parameters as the 3 District Accord lays down – one of which is that “the cycle will consist of 6 weeks”. Article 5.02, again, reads as follows:
5.02 Subject to the requirements of the service, in the discretion of the Chief of Police: [emphasis added] (a) The normal tours of duty will be as follows: First Tour 12:01 – 8:00 a.m.…. provided that the Chief of Police shall continue to have the right to change the starting time of a tour of duty.
Article 5.02 was subsequently modified by the 3 District Accord, in the following ways, listed under Paragraph 3 of the Accord, “Working Conditions”.
39 3. Working Conditions
The implementation of the Cycle is…intended to rearrange their [the members affected by the compressed work week] working schedule as set out in Section 2. To that end, for members assigned to the Revised Shift Schedule this Accord takes precedence over the terms of the “Uniform” collective agreement and during the term of this Accord the following articles of the collective agreement shall bear the interpretation as set out below. (a) Sub-articles 5.01(a) and 5.02 (a) are inapplicable; (b) Each member shall be assigned a one hour controlled lunch period… (c) Sub-article 5.02(a) shall be amended in accordance with the Cycle as set out in paragraph 2 hereof provided, however, that the Chief of Police in his/her discretion shall continue to have the right to change the starting time of a tour of duty, including the right to vary the starting time of a tour for overlapping at tour changes. (d) Sub clause (b) of 5:02 is inapplicable.
Clearly, when the 3 District Accord is superimposed on Article 5 of the collective agreement, the qualifying clause that begins Article 5.02, “subject to the requirements of the service, in the discretion of the Chief of Police”, remains intact as the first line in the sub-article. Applying the basic principles of grammatical and contractual construction, it therefore must be taken to qualify all that follows it in the now-modified 5.02 – namely, the various dimensions of the 3 District revised shift schedule: a cycle of six weeks, tours of duty lasting nine hours, a 26/16 work days/off days ratio, and so on. This is the conclusion that Mr. Weatherill also reached in one of the cases cited. This 1985 decision dealt with a dispute between these same two parties ostensibly over the question of callback entitlement.15 In reality, however, the core issue of this dispute was whether or not the Chief of Police could temporarily change the shift of several platoons of officers, otherwise scheduled to be off duty, in order to provide more police coverage for the Pope’s 1994 visit. The question was not whether or not these officers would work but, rather, whether or not they were entitled to callback pay; the Association argued that they were so entitled, since they were scheduled to have been off duty by virtue of the regular schedule; the Board argued that because the Chief of Police had temporarily changed their schedules for purposes only of the Pope’s visit, they could not be considered to have been off duty (and therefore entitled to callback pay) but, rather, on
15 “Callback” pay is premium pay for officers called in to work on their days off.
40 duty and, therefore, not entitled to callback. The Board argued that the Chief of Police had done this because of the requirements of the service, and noted that he had provided six weeks’ notice to the officers affected. In his award, Mr. Weatherill noted the relationship between Article 5 of the collective agreement and the Compressed Work Week:
The Accord on the Compressed Work Week entered into between the parties has modified certain provisions of Article 5, although it has not altered the general provision that the shift cycle and tours of duty are “subject to the requirements of the service, in the discretion of the Chief of Police” (article 5.02, as amended, in effect, by Clause 3 of the Accord).
The Association disagrees with this and argued that, in fact, Mr. Weatherill imputed too wide a degree of discretion to the Chief of Police. Mr. Aveling’s argument, it should be remembered, was that the superimposition of the 3 District Accord on the collective agreement resulted in there being only one reference to the Chief’s discretion – that related the varying of start times of shifts. In other words, the Weatherill award was incorrect and, since the wording in 1985 is identical to the wording in the agreement under which this grievance is being argued, the Chief’s discretion is too narrow to justify a change of the magnitude we are dealing with here. With great respect, I do not see the Chief’s discretion as being that limited under the 3 District Accord; a plain reading of the Accord superimposed on Article 5 shows that the “Requirements of the Service and Chief’s Discretion” clause to still be present – right at the beginning of sub-article 5.02. It is my conclusion that it still modifies everything in 5.02 and, thus, the language setting out the parameters of the Compressed Work Week as it applies in the Accord. But this is not to argue that the Chief’s discretion is unlimited. Clearly, it is limited to applications for purposes of “requirements of the service”. That condition is satisfied in this case; the evidence was consistent that all parties acknowledged that the need to adapt the shift system was genuine and, while there was some debate as to whether or not the needs of the service might have been satisfied with fewer detectives on duty (that is, as there would be under the six-week cycle), there was no question that, at the heart of the matter, lay the needs of the service.
41 It is important to look plainly at what was done here. Supt. Griffiths, knowing that the six-week cycle would no longer be viable with the staff cuts he correctly anticipated were in the offing, entered into discussions with his detectives throughout the early winter of 1996 in order to canvass his people’s feelings and gather input; he also opened discussions with Labour Relations. He held a meeting on March 6 which evolved into a general brainstorming session of the principal players in the 31 Division C.I.D., from which emerged two ideas – how to manipulate the weekend staffing of the cycle so as to give officers half their weekends off, and a change in the leave-draw policy – that went a great distance in making the five-week cycle more acceptable to those concerned. Supt. Griffiths accepted these, notwithstanding the fact that each one could be expected to have some detrimental impact on the effectiveness of the Division. I believe that the key players in the 31 Division-detective-branch situation had worked out a deal that one side saw as tentative (meaning that it had to be properly ratified or at least approved by the Association) but that the other side, at least initially, thought was a final deal, at least upon word from Len Hazel to Supt. Griffiths that Paul Walter did not have a problem with the new cycle. Arrangements went forward to carry out ratification but, when it was discovered that the wrong shift cycle had been mistakenly attached to the ballot package, these arrangements were suddenly aborted. The evidence is clear that this changed the dynamic: the detectives were now suspicious that “management was trying to pull a fast one”. The process was tainted and people’s feelings were now more negative than they had been before the aborted vote. Subsequent to this event, there was what I would characterize as desultory discussion between and among the parties, but no focused, disciplined, or sustained attempt – from either side, much less from the parties acting together – to obtain resolution one way or the other. Ultimately, the Association grieved – apparently, on the suggestion of the-then Director of Labour Relations - in order to get that resolution. Because of the parties’ later attempts to negotiate a solution, that resolution would be more than four years away. The foregoing is my finding of what, in a nutshell, actually happened in the period January through October of 1996. It must be now looked at in the light of the collective agreement – namely, the 3 District Accord superimposed on Article 5.02. Here is the operative part of that language:
42 Subject to the requirements of the service, in the discretion of the Chief of Police:
The shift cycle and tours of duty to be made during the Revised Shift Schedule is to be of a type in accordance with the following general description…
This provision appears to say that the shift cycle and tours of duty will be either within the general model (as described below) or, if the requirements of the service, in the judgment of the Chief, require it, outside that general model. It therefore gives the Chief of Police the discretion to vary the shift cycle and tours within that general model – again, subject to the needs of the service; the first clearly implies the second. What happened in this situation comes very close to fitting within the second and narrower scope – that is, within the same general model. There is a certain flexibility to the language of the second sentence: the cycle and the shifts are to be “of a type in accordance with the following general description” [emphasis added]. This language – and particularly the phrase, “of a type” – clearly connotes a degree of flexibility which, it is arguable, has not been exceeded by what was done with the 31 Division C.I.B. The new five-week cycle, as amended at the March 6 meeting, captures the essence of the six-week cycle: it uses shifts longer than eight hours in order to concentrate work time, thus giving officers longer continuous periods of time off. In addition, the amended five-week cycle is very close to the six-week cycle in several detailed respects and is very much in keeping with the principles exemplified in Paragraph 2 (a) of the Accord. A comparison between the two is instructive in these respects. The two cycles are alike in terms of their fundamental character, and they are very similar in their details. In some respects, the five-week cycle is worse; in other respects, though, it is better. It must be remembered, in particular, that the 50% leave draw was a direct quid pro quo for moving to the five-week cycle.
43 Six-Week Cycle Five-Week Cycle Length of Cycle 6 weeks 5 weeks Days Worked 26 of every 42 25.2 of every 4216 Days Off 16 of every 42 16.8 of every 42 Length of Tours 9 hours two tours of 9 hours; one of 10 hours Weekends Off 3 of every 6 (50%) 5 of every 10 (50%)17 Leave Draw 10% Rule 50% Rule Maximum potential days 12 18 worked18 Consecutive Days on 7 days: 3 times per cycle 7 days: 5 times over two Scheduled Duty cycles 3 days: once per cycle 5 days: once over two cycles 2 days: once per cycle 2 days: once over two cycles Consecutive Days 5 days: once per cycle 6 days: once over two cycles Scheduled Off 4 days: once per cycle 5 days: 3 times over two cycles 3 days: once per cycle 3 days: once over two cycles 2 days: twice per cycle 2 days: twice over two cycles
Whatever the detail, however, in terms of its essential character, the five-week cycle, as amended by the March 6 meeting, is reasonably close to the six-week cycle. For purposes of Paragraph 2 of the 3 District Accord, then, I think that it is “of a type in accordance with the general description” that follows. The language of Article 5.02, as amended by the 3 District Accord, gives the Chief discretion to go beyond the general model outlined, but in this case, that is not necessary. Under the language of the collective agreement, the Chief of Police has some degree of discretion which can be applied to the Compressed Work Week. However, there are some limits, the first of which is that that discretion must be exercised for bona
16 Under the five-week cycle, over two cycles (or a ten-week period), officers work 42 days and have 28 days off. This is proportionately equivalent to 25.2 days on and 16.8 days off over a six-week period. 17 Weekends off is not an explicit part of the 3 District Accord, albeit it is an important implicit one. 18 Assuming court appearances on three consecutive days off between shifts.
44 fide requirements of the service; I have determined on the evidence that that was the case here. As well, the Chief’s discretion must be exercised in a non-capricious, non arbitrary, and good-faith manner. In my view, those conditions have been satisfied in this situation, specifically in terms of: (1) the fact that Supt. Griffiths went out of his way to consult ahead of time with his detectives in order to find a mutually agreeable solution to the staff-shortage problem – which was, indeed, a serious problem; (2) the fact that they reached a de facto tentative deal (a deal, it should be noted, which provided them a very substantial benefit over what they had had under the six-week cycle in terms of the 50% leave-draw policy); (3) the fact that that deal very probably would have been ratified had it not been for the wrong cycle being attached to the ballot and the April 18 vote being aborted, and hence the dynamic changed and the mood soured, and (4) the fact that the jointly amended five-week cycle was, in its essential character and many of its details, very similar to and of a type with the six-week cycle. I conclude that the Force did not violate the collective agreement when the five-week shift cycle was implemented at 31 Division. There remains one final issue in respect of the Chief’s-discretion argument: namely, that under Article 5.02, it is the Chief of Police and not the Unit Commander who is given discretion. Mr. Aveling, for the Association, while (as noted above) not conceding that the Chief of Police has sufficient discretion under Art. 5.02 to change the shift system from a six- to a five-week cycle, argued that, in any event, it was not the Chief of Police but, rather, Supt. Griffiths who made the change. Article 5.02 explicitly refers to “the Chief of Police” and that is exactly what it means, according to Mr. Aveling’s argument; and the Chief’s power cannot be delegated. The Supreme Court of Canada decision, Re Ramawad and the Minister of Manpower and Immigration was cited as authority for the proposition that, in deciding whether or not an authority explicitly given to one particular organizational position, in that case, the Minister, can properly be delegated to a lower level, one should look to the statute in order to determine the intent of Parliament. In like fashion, we should in this case look to the collective agreement and the 3 District Accord to discern the parties’ intent. If we do so, we can find in both documents, as Mr. Aveling pointed out, a number of specific references to both the Chief of Police and the Unit Commander; in other
45 words, the parties intended to be specific: where they indicate the Unit Commander, that is the rank and level which is empowered under a particular provision and, where the provision explicitly refers to Chief of Police, it is that person and no other to whom the parties intended that the provision refer. For his part, Mr. Stewart argued that whether a particular provision of the collective agreement explicitly mentioned the Chief of Police or the Unit Commander was largely dependent as a practical matter on the reach of a particular provision. He argued that we could infer that the parties could not have intended to restrict to the Chief of Police decision on a relatively trivial matter that would affect forty-odd people amongst a force of over 5,000. I am not persuaded by the Association’s argument that, given that it is the Chief of Police whose position is explicitly attached to the discretion of Article 5.02, the change to the five-week cycle in this particular case cannot be allowed by that article because the change was made by Supt. Griffiths. There are two reasons for this. The guiding maxim of the arbitrator is that he or she should try to discern the parties’ intent and, to do that, it is appropriate to put the parties’ language in appropriate context in order to better discern that intent; a word or phrase that means one thing in one industrial context may take on a very different meaning in another context. We must therefore look to the police context. Police in Canada and Ontario are a military-like organization in terms of the culture, organization, rank structure, and administrative and bureaucratic tradition. To a much greater extent than in his or her counterpart in a civilian private-sector organization, the Chief of Police, like the Commanding Officer of a quasi military establishment, is the symbol and the embodiment of the unit. As well, the lines of communications in police and the military tend to be much more formally defined than they are in a civilian organization. As a reflection of both of these realities, for example, all mail for the military unit is addressed to the Commanding Officer, whatever the particular intended department. Likewise, reflecting a similar military culture, the Metropolitan Toronto Police letterhead that comprises Exhibits 50 and 51 in this case, for example, features the notation,
David J. Boothby Chief of Police
46 in the upper left-hand corner. The letterhead which are Exhibits 41 through 46, as an earlier example, have the following notation in the upper left-hand corner:
Address all correspondence to:
Wm. J. McCormack Chief of Police
This is simply to say that, in the unique culture of policing, there is a symbolic dimension to the Chief’s name and position; it can stand for the Force collectively. To continue the example of correspondence, all the mail was not delivered to Chief McCormack - or, at least, he and his office didn’t personally read it; rather, it was directed to the department or individual responsible for dealing with the particular subject matter. This is simply argue that the expression, “Chief of Police”, may be used in a figurative or collective sense and, in my view, a degree of flexibility should sometimes be applied in interpreting collective-agreement provisions that specifically use that term which would not be used when construing a similar provision in a civilian collective agreement. An action can be properly undertaken and have the Chief’s implicit approval because it was taken by those to whom he or she has delegated authority, in accordance with principles and policies of which the Chief approves. It is neither practical nor necessary for the Chief to deal personally with every detail of administrative work, and it is not expected that he or she will do so. That is why departments such as Human Resources and Labour Relations, with their trained and specialized staff, exist. And, despite all the voluminous documentation and testimony presented in this case, the issue at its heart is, relatively speaking, a detail that, had it not been for a set of unusual circumstances, would never have assumed its current proportions but would likely have been resolved by the spring of 1996 through a vote of 31 Division detectives. Thus, in my view, we should interpret the term “Chief of Police” with sensitivity to its collective and figurative aspects, given the unique nature of the cultural and organizational realities of policing. Second, but in the context of the foregoing observations on police culture, is the question of who actually made this decision. If this was simply a case of the Unit Commander, Supt. Griffiths, taking it upon himself to unilaterally change the shift cycle, 47 I would agree with the Association’s argument; the Chief’s powers under Article 5.02 cannot be delegated that far. However, the facts of this particular case make clear that it is not a stark choice between the Chief of Police and the Unit Commander; a number of people on the management side of the Force were involved in this decision. Supt. Griffith kept his Deputy Chief informed of the situation and got her approval to proceed with the move to the five-week cycle when it appeared to him that the detectives and the Association had no problem with it. It will be noted, for example, that Deputy Chief Cann was copied on Mr. Hazel’s letter of February 22. Beyond this, however, the Labour Relations Department was involved from the outset in the person of Len Hazel, then Manager of Labour Relations for the Metropolitan Toronto Police Service; indeed, Mr. Hazel dealt directly with the President of the Police Association on this matter. Later on, the Manager of Human Resources also became involved and, in a sense, was party to a decision, taken jointly with Supt. Griffiths, that reverting to the six-week cycle would be even more problematic. Thus, there is no question but that this was what could appropriately be characterized as a corporate decision on the management side, with the Unit Commander, the Manager of Labour Relations, the Department of Human Resources and the Chief’s Office all taking part. In that sense, then, it was “the Force” making the decision. Indeed, it may very well be that the Chief of Police was informed by the Deputy and approved of the decision; we don’t know and we can’t speculate on this except to the extent of observing that this change was not something done by some low-level commander in the field on his own initiative, unbeknownst to anyone at Force Headquarters; Headquarters was kept informed and, indeed, participated in the decision. For all of the foregoing reasons, then, I find that the decision made to change from the six- to the five-week cycle in the 31 Division C.I.B., in these particular circumstances, was properly made under the discretionary provision of Article 5.02 of the collective agreement and the 3 District Accord. Accordingly, therefore, the grievance must be dismissed. I wish to close this award by thanking the parties for their courtesy and forebearance in this long process and Mr. Aveling and Mr. Stewart for their excellent presentations on a very complicated matter.
48 Dated at Kingston, this 20th day of December, 2000.
R. L Jackson
49