ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
DRYDEN POLICE ASSOCIATION
Applicant
DRYDEN POLICE SERVICES BOARD
Respondent
Presiding Members:
Sam Cancilla, Member
Appearances:
Sergeant Shayne MacKinnon, Dryden Police Association
Constable D.W. Shankorik, Dryden Police Association
R.W. Gould, Chair, Dryden Police Services Board
Chief Bob Imrie, Dryden Police Service
Nancy Murdick, Administrative Assistant
Bob Gale, Counsel, Dryden Police Services Board
Hearing Date: Wednesday, September 23, 1998
This is an application by the Dryden Police Association (the “Association”) pursuant to s.
116 of the Police Services Act R.S.O. 1990, c. P.15 as amended (the “Act”) to determine the status of the Administrative Assistant to the Dryden Police Service (the “Service”).
Background
The town of Dryden is located midway between Thunder Bay and Winnipeg on the CPR mainline and Trans-Canada Highway. It is policed by the Service which is composed of sixteen officers, ten civilians, and a number of crossing guards and custodial staff.
One of the civilian positions is that of Administrative Assistant. The current occupant of this position is Mrs. Nancy Murdick. Mrs. Murdick joined the Service in 1978. She left the Service in 1981 for four years. Upon her return in 1985 she performed various clerical and support duties as well as being the supervisor of the Service’s communications staff (radio dispatch). In 1991 she was appointed Executive/Records Coordinator, with responsibilities for OMPPACC and CPIC files, Freedom of Information requests, general office duties, and supervision of all office staff including radio operators.
Her job description was revised in 1993 and retitled Administrative Assistant. It contained fifty-six duties and responsibilities. It is described as non-union, reporting to the Chief of Police.
The time allotment for the position was defined as:
50% of time to provide secretarial support to the Chief
40% of time to assist with the administration of operations
10% of time to supervise operations
Mrs. Murdick continued to supervise up to six persons until 1996. Since then, she supervises only one part time clerical assistant, who is employed from 9:00 a.m. to 1:00 p.m., Monday to Friday.
The clerical assistant, substitutes for Mrs. Murdick in her absence and is a member of the Association. In the past the Association has invited Mrs. Murdick to become a member. Mrs. Murdick has quite emphatically declined. The Dryden Police Services Board (the “Board”) has also declined to deduct Association membership dues from Mrs. Murdick .
On December 17, 1997 the Ontario Civilian Commission on Police Services (the “Commission”) received an undated letter from the Association concerning Mrs. Murdick’s position. It stated: “the Police Services Act stipulates all members of a Police Service must be represented by an Association. Therefore, we respectfully request a Status Hearing to resolve this matter pursuant to section 116 of the Police Services Act. “In response, the Board wrote a letter to the Commission dated January 19, 1998 which stated:
Prior to the designation of Administrative Assistant, this position was identified as Police Secretary, and it has never been a union or Association job.
The Administrative Assistant dealt with and prepares information that is extremely confidential in nature, with regard to Board/Association negotiations, typing of personnel evaluations, and disciplinary matters, in- camera reports to the Board and Freedom of Information requests, to name a few. The Board is of the opinion, that for reasons outlined above, this position should be classified, and remain as a non-union in nature.
Given the disagreement a hearing was scheduled.
The Law
Municipal police forces in Ontario are composed of “members” who are appointed by local police services boards. Section 2 of the Act defines the term “member of a police force” to include” a police officer, and in the case of a municipal police force includes an employee who is not a police officer”.
The Act permits members to form associations for the purposes of collective bargaining. Under section 115(2) both chiefs of police and deputy chiefs are excluded from these provisions.
Section 118(1) of the Act recognizes that “If a majority of the members of a police force, or an association … assigns the members of a police force to different categories … bargaining, conciliation and arbitration shall be carried on as if each category were a separate police force.” This normally is done under two categories: uniformed officers and civilians.
The Act also allows for the establishment of a separate association for senior officers. Section 118(2) provided that “If at least 50 percent of senior officers of a police force belong to an association composed only of senior officers, bargaining, conciliation and arbitration shall be carried on as if the senior officers were a separate police force.” Section 114 of the Act defines “senior officer” to mean “a member of a police force who has the rank of inspector or higher or is employed in a supervisory or confidential capacity”.
No senior officers' association exists in Dryden. However, there is a collective agreement between the Board and the Association. Parts of this agreement state:
1.0.1 The Board recognizes the Association as the exclusive bargaining agents of the Police Service, hereinafter called the bargaining unit, and shall bargain in good faith with a Negotiating Committee of the Association
1.03 The Board and the Association agree that the terms of this agreement shall apply to all members of the service, save and except those excluded by statute, or as set forth in this agreement ...
1.05 The Board agrees that as a condition of employment all employees failing within the scope of this Agreement shall obtain and maintain membership in the Dryden Police Association after 30 days of employment.
It covers both uniform and civilian staff. Section 116 of the Act provides:
116(1) If there is a dispute as to whether a person is a member of a police force or a senior officer, any affected person may apply to the Commission to hold a hearing and decide the matter.
(2) The Commission’s decision is final.
This is the provision under which this hearing is being conducted.
The Hearing
The hearing took place in Dryden on September 23, 1998.
The Association was represented by Sergeant Shayne MacKinnon. The Board was represented by Mr. Bob Gale.
There were no preliminary motions presented or agreed statements of facts. However, both parties acknowledged that Mrs. Murdick is a member of the Service within the meaning of section 2 of the Act.
The parties were asked to confirm whether they had received copies of all relevant correspondence filed with the Commission. Sergeant MacKinnon indicated that the Association had not been given a current copy of the job description for the subject position. He was provided a copy and given time to review the document.
A number of written documents and briefs were tabled by both parties and marked as exhibits. These included:
Exhibit “A”, (the Association) binder with 21 pages of correspondence and five authorities.
Exhibit “B”, (the Association) Service organization chart.
Exhibit “C”, (the Board) 1993 Administrative Assistant job description.
Exhibit “D”, (the Board) Personnel Evaluation form from the Service.
Exhibit “E”, (the Board) Binder with statute excerpts and seven authorities.
Exhibit “F”, (the Association) Summary of closing remarks.
Exhibit “G”, (the Association) Memorandum of Agreement between the
Dryden Police Services Board and the Dryden Police Association.
Oral testimony from Mrs. Murdick and Chief Bob Imrie was also received.
Mrs. Murdick gave a brief history of her employment since 1978. She defined her role and described both her general duties and confidential responsibilities. She advised that she is the only key holder to the Service office other than the Chief and has access to all locked files. She prepares contract and labour negotiation material as well as documents required for presentation to the Board. Confidential long-term planning and budgetary issues are also part of her responsibility.
During cross-examination, questions were asked by Sergeant MacKinnon concerning the Administrative Assistant job description.
Mrs. Murdick stated that many duties in the description were shared with other personnel. These include all sergeants and a court officer who have access to most files in her office. The sergeants are also accountable for OMPPAC and CPIC systems and review of staff reports.
Mrs. Murdick acknowledged that the sergeants supervise fourteen personnel in the office while she supervises only one. She stated she could neither hire nor fire anyone, but could make recommendations to the Chief.
On redirect, Mrs. Murdick spoke of her position as being in a different category from that of the sergeants as she handles and prepares confidential personnel and labour negotiation material between the Board, the Association and the Chief.
Chief Imrie testified that he has been with the Service for 29 years and Chief since
He stated that Mrs. Murdick enjoys a position of trust and “is the only other key holder to the office and has access to everything”. He suggests that the Administrative Assistant function is confidential in nature and although the sergeants have access to some files they do not have access to all the files without his permission.
The Chief confirmed that Mrs. Murdick is involved with confidential budget and contract negotiations and prepares Board material. She is the only person in the office other than himself who is not a member of the Association.
Applicant’s Position:
Sergeant MacKinnon stated that the question of Mrs. Murdick’s status is a long standing unresolved issue going back to 1992. Essentially, he argued that the Administrative Assistant should be a member of his Association.
He sought a finding that would classify the position as falling under the scope of the collective agreement. As well, the Association sought membership dues retroactive to
1992 and an award of hearing costs of $700.00 plus $60.00 for incidentals. Alternatively, he would accept the Board reinstating the Association business days for the hearing plus $60.00 for incidentals. The Association also sought a ruling to the seniority rights of the position in question under article 3.04 of the collective agreement.
The Association pointed to the fact that in the collective agreement the Board recognizes the Association as the exclusive bargaining agent for the Service. Sergeant MacKinnon also noted that there is no senior officers' association in Dryden and no reference to such an organization in the collective agreement.
He argued that even if this were not so Mrs. Murdick would not qualify as a senior officer. He pointed to section 114 of the Act which defines a “senior officer” as one “who has the rank of inspector or higher or is employed in a supervisory or confidential capacity”.
Sergeant MacKinnon argued that Mrs. Murdick’s responsibilities are of a general nature. He suggested that many of the duties assigned to Mrs. Murdick such as answering the telephone, typing court documents, information’s, time sheets and accounts receivable, ordering stationery and equipment, preparing correspondence for the Chief, filing, and front counter reception, do not meet the requirements for “senior officer” status.
In response to the argument that Mrs. Murdick has access to confidential personnel, labour relations, planning and budgetary information, Sergeant MacKinnon stated that the level of confidentiality required for her role is over stated.
First, the responsibilities of her position are split with a part time secretary who is a member of the Association. Second, all of the sergeants on staff are aware of disciplinary matters affecting personnel and have access to the files located in the Administrative Assistant’s office. The sergeants are members of the Association.
In testimony, the Chief indicated that he plans budgets for presentation to the Board and town council with Mrs. Murdick’s assistance. As well, the Chief assists the Board with labour relations negotiations.
However, Sergeant MacKinnon pointed out that the Board has its own secretary who prepares minutes of Board meetings. Sergeant MacKinnon stressed that any labour or contract negotiation documents of a confidential nature could easily be prepared and handled by the Board secretary who is not a member of the Association. He also noted that the Chief is an advisor to both parties in negotiations and as such has no confidentiality issues which would filter down to the Administrative Assistant.
Sergeant MacKinnon stated that the supervisory nature of this position is minimal; pointing out that Mrs. Murdick only oversees one part time person. He noted that the Communications Supervisor who supervises six full time staff is a member of the Association.
Respondent’s Position:
Mr. Gale, for the Board, made two assertions.
First, he argued that Mrs. Murdick is employed in a “supervisory or confidential capacity” and is a “senior officer” within the meaning of section 114 of the Act. He stated the sole issue to be determined was the supervisory and confidential nature of the position as the statute is paramount.
Assuming the Commission were to conclude that the position is properly a senior officer, Mr. Gale suggested that the Commission has no authority to either compel the formation of a senior officers' association or direct Mrs. Murdick to be a member of the Association.
Mr. Gale highlighted the confidential aspects of the position. He pointed to the personnel evaluation form used by Mrs. Murdick to evaluate personnel for promotion and/or probationary status. He also noted that Mrs. Murdick offers her opinions to the Chief on staffing and discipline matters, reviews and prepares reports submitted by uniform and civilian staff ensuring completeness and accuracy within established policy guidelines.
He argued that the Chief requires a person to perform such duties in a confidential capacity.
Mr. Gale suggested that even though Mrs. Murdick only supervises one part time person she does in fact perform a broader supervisory role. He pointed to her supervision, care and protection of all Service records, files and confidential documents.
The Board is not seeking compensation for hearing costs.
Decision:
In considering this matter I found the Commission’s decision in Guelph Police Association (May 14, 1984) to be both helpful and relevant. That decision in turn relies heavily on Metro Toronto Police Association (February 17, 1975).
In particular pages 2 and 3 state:
There is a fine line separating the degree of responsibility of the civilian employee in a supervisory capacity and the civilian employee who cannot be so related. This means that every situation must be considered separately and in the end a common sense view must prevail after all the factors in the individual cases have been taken into consideration. Some of these factors are as follows:
a) How important is the responsibility of the employee?
b) How much initiative does he exercise?
c) Does the employee report to a position high in the hierarchy of command or management?
d) How many employees does he oversee?
e) What is his contribution in respect to the hiring and discharging of employees?
f) What powers of discipline does he exercise?
g) What powers does he exercise as to distribution of work-load and hours of work?
h) Does he assign work, assess quality of work and issue corrective instructions if work is improperly done?
i) Does he train employees?
j) What discretion does he have to grant favours to employees, such as time off?
k) What does he contribute in respect to formulating procedures in his area of duty?
l) What influence does he exercise in respect of choice of equipment and accommodation?
m) Do all reports from employees whom he oversees flow through him or do these employees, or any of them, report directly to someone superior in rank to the subject?
n) Is he but a conduit for the transmission of orders from his superior or does he initiate orders and discipline within the general framework of management police?
o) Is his salary range commensurate with supervisory function?
p) Would he have a conflict of interest in relation to disputes between employees whom he oversees and management?
q) Does he spend a large part of his time in overseeing the work of others as opposed to actual performance of work itself?
The above list is not exhaustive, nor does an employee necessarily qualify in all of the above categories in order to be employed in a supervisory capacity as set out in The Police Act, but to determine his status there must be a balance of factors before a conclusion can be drawn in an individual case, and it should be noted that the factors above mentioned are not necessarily of equal importance in any individual case”.
The panel in Guelph Police Association goes on at page 4 of its decision to state:
“Confidentiality” itself is not a factor. All police officers and many civilians share confidential information as an essential part of their daily work.
The question of confidentiality is one of whether or not that knowledge or responsibility would place them in an apparent conflict of interest between the force and their association…
How does this apply to the facts of this case?
- The Supervisory Role
The 1993 job description entered as evidence allocates 10 per cent of the job time to personnel supervision. The reality of the situation would appear to be somewhat less. The Administrative Assistant supervises only one person, a part time clerk typist who works from 9:00 a.m. to 1:00 p.m. daily. Further, she has no authority to hire, fire, discipline, set hours of work or grant time off.
I agree with the Dryden Police Association that the supervisory or oversight portion of this position is minimal and singularly insufficient to justify senior officer status. This is particularly the case when the supervisory nature of Mrs. Murdick’s position is contrasted with those of the sergeants and Communications Supervisor who oversee more staff and remain members of the Association.
- Confidential Role
The Dryden Police Service office is not unlike similar size police service offices in Ontario with some administrative employees performing multiple roles: answering telephone calls, routine front counter clerical work and general office duties.
However, these routine tasks do not take away from some of the extraordinary responsibilities vested in this position.
The evidence indicates that the Administrative Assistant has a special position of confidentiality in this office having complete and unfettered access to all restricted and confidential documents. In particular, she prepares and discusses evaluations, budget strategies, long term planning, contract negotiations, sensitive personnel and discipline issues. She prepares confidential matters to be presented to the Board.
In many respects the position in question is similar to what used to be called administrative or executive secretary to the chief. On several previous occasions the Commission has determined that the confidential nature of such positions requires senior officer status. See Metropolitan Toronto Police Association (June 1, 1972), Halton Regional Police Association (January 15, 1982), Owen Sound Police Association (April 21, 1987), Brockville Police Association (July 13, 1989) and Hamilton-Wentworth Police Association (June 24, 1992). A similar conclusion was reached with respect to an Executive Assistant to the chief in Orillia Police Association (August 4, 1993).
Accordingly, I find that Mrs. Nancy Murdick, occupant of the Administrative Assistant position to the Dryden Police Service, meets the requirements of section 114, the Act in that her role is of a confidential nature and I determine that the status of this position is “senior officer”.
That being said, it is evident that there currently does not exist a senior officers' association in Dryden to which Mrs. Murdick can belong. Further, I agree with Mr. Gale that I have no authority to direct that one be created.
Does this mean that Mrs. Murdick is to remain in some form of limbo?
This question appears to have been considered on previous occasions by both the Commission and the courts. In 1984 in Guelph Police Association the Commission stated at page 4:
Even where confidential information with an apparent conflict may exist, such as with a chief’s secretary, if there is no senior officers' association to join, the existing police association bargains for that secretary. This is so whether or not the secretary chooses to be a member of the association.
The general rule appears to be that every person employed in a police force is a member thereof. Where a majority of members of the force decide upon a bargaining agent, which may be their association, then that agent bargains for all members of the force, (not just all members of the
association). The exceptions are the chief, the deputy chief, and members of a senior officers' association”.
There is no deputy chief or senior officers' association in Dryden. Given that reality, the chief of police would appear to be the only person exempted from potential membership in the Association.
This issue has also been considered by the courts. In Brockville Police Association (July
13, 1989) the Commission determined that the secretary to the chief of police was a senior officer. However, there was no senior officers' association in place at that time and the local Association attempted to include the position in its collective agreement for civilians in 1990.
Unfortunately, it was not possible to negotiate an agreement and the matter was referred to arbitration. The arbitrator released his award on January 8, 1991. It read in part:
In 1989 a hearing was held before the Ontario Police Commission under Section 23 of the Police Act. The hearing was an application by the Association for a declaration that the two secretaries were “senior officers” within the meaning of Section 30 of the Police Act. This was essentially a determination of whether or not they were employed in a supervisory of confidential capacity. The decision of the Ontario Police Commission was that the secretary to the Chief qualified as a senior officer. The difficulty with the decision is that there are no senior officers in the bargaining unit and accordingly if the Chief’s secretary is not included in this unit, one will have to be set up to cover the position.
I can see the dilemma, but if in fact this person is acting in a supervisory capacity, it would be improper for he/she to be included within the bargaining unit. Indeed, that result seems to be mandated by the Ontario Police Commission decision. In the result, the secretary must remain outside the unit.
The arbitrator refused to include the chief’s secretary in the collective agreement.
This decision was the subject of an application for judicial review before O’Driscoll, O’Brian and Rosenberg JJ. of the Ontario Court of Justice (Divisional Court). At page 9 of a decision dated January 7, 1992 O’Driscoll J. described the key issue as follows:
Question: Is the secretary to the Chief of the Brockville Force to be excluded and left out of the collective bargaining process because she has been designated by the O.P.C. as a “senior officer” and because no senior
officers’ association exists at the Brockville Police Force? Or, is the secretary to the Chief to be included in and represented by the applicant association unless and until a senior officers’ association is formed and qualifies as a separate bargaining unit under s. 30(2) of the Act?
Essentially, the court unanimously answered no to the first question and yes to the second.
At page 12 of the judgment the court held:
We are also of the view that the arbitrator’s interpretation of s. 30(2) of the Act was “patently wrong”; he ignored the significant differences in the words of the Police Act and the Labour Relations Act and wrongly incorporated into the Police Act a managerial and confidential exclusion. The only issue before the arbitrator was whether the ‘secretary to the Chief’ was a “member” of the force under s. 29(2) of the Act. Instead of asking and answering that question, the arbitrator decided whether or not the ‘secretary to the chief’ was a “supervisory or confidential” employee.
It overturned the arbitrator’s award “in so far as it failed to include the position of
‘secretary to the chief’ within the bargaining unit” and directed that the position “be included within Appendix “A” of the Civilian Collective Agreement”.
The wording of the relevant sections of the Act in 1991 remains much the same today. As a result, the same principle would apply to this case. There is acknowledgment by all parties that Mrs. Murdick is a “member” of the Service. In the absence of a senior officers' association, the Administrative Assistant cannot be the subject of a management exclusion or otherwise unilaterally deemed non-union. This position can be included in the Association’s collective agreement and indeed would appear to be already captured by Article 1.03.
The Association requested a decision on the matter of retroactive dues, seniority rights and hearing costs. The question of dues and seniority rights is not within the Commission’s mandate. In the absence of agreement these would appear to be questions for arbitration under Part VIII of the Act. Further, the Commission has no authority under the Act to award costs.
My thanks to Mr. Bob Gale, and Sergeant Shayne MacKinnon for their helpful, thorough and courteous presentations.
DATED THIS 17th DAY OF NOVEMBER 1998.
Sam Cancilla
Member, OCCPS