Ontario Labour Relations Board
[1984] OLRB Rep. September 1194
0842-84-R Ann Cooper, Jill Hulton, Judy Hanlon, Karen Schwarz, Applicants, v. Kingston Township Professional Fire Fighters Association, Respondent
BEFORE: Corinne F. Murray, Vice-Chairman, and Board Members I. M. Stamp and L. C. Collins.
APPEARANCES: Ann Cooper and Jill Hulton for the applicants; J. Sack, Q. C., A. Baker, P. R. Burke, Ron Bowman and Claude Dupuis for the respondent.
DECISION OF THE BOARD; September 17, 1984
1This is an application for a declaration terminating the bargaining rights of the respondent pursuant to section 57(2)(a) of the Labour Relations Act. Section 57(2)(a) provides:
(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,
(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;
2The respondent by its reply raised a jurisdictional challenge to the application, i.e., that the Labour Relations Act does not apply to the employees in the bargaining unit defined in the relevant collective agreement. On this basis the respondent seeks to have the application dismissed.
3The collective agreement which is the foundation of this application is between the Corporation of the Township of Kingston ("Corporation") and the Kingston Township Professional Fire Fighters Association Local 2852, International Association of Fire Fighters ("Association"). It was a first collective agreement between these parties. Its duration was between January 1, 1982 and December 31, 1983. The Association never received certification from this Board. This means that if the Labour Relations Act applies, any existing bargaining rights flow from and are determined by this collective agreement. The bargaining unit described in the collective agreement is:
all employees of the Township of Kingston Fire Department as defined in the collective agreement.
"Employee" is defined in the collective agreement to mean:
all personnel of the Fire Department under the jurisdiction of the Fire Chief, excluding the Chief, Deputy Chief and Volunteer Fire Fighters, pursuant to the Fire Department [sic] Act, R.S.O. 1980.
No list of "personnel" is set out. The balance of the definitions dealing with bargaining unit positions in the collective agreement which could encompass those who are under the jurisdiction of the Fire Chief pursuant to the Fire Departments Act, are:
"Fire Fighter" is defined in the collective agreement to mean:
all employees regularly employed in the Fire Department and assigned exclusively to fire protection and/or fire prevention duties.
"Fire Alarm Technician" is defined to mean:
all employees regularly employed in the Fire Department and assigned exclusively to communication's operations and clerical duties of Kingston Township Fire Department.
"Communications Officer" is defined to mean:
all employees regularly employed in the Fire Department and assigned exclusively to supervision of operations, communications and fire alarm technician.
"Mechanic" is defined to mean:
a fire fighter holding a valid Ontario mechanic's license and performing the function of mechanic with the Kingston Township Fire Department.
4The Township of Kingston Fire Department is made up of 1 fire fighter who is a mechanic; 1 fire prevention officer (fire fighter); 4 fire alarm technicians (also known as dispatchers); 1 communications officer (also known as supervisor of the fire alarm technicians) in addition to the Fire Chief, a Department Fire Chief and a number of volunteer fire fighters. All, except the volunteer fire fighters and one fire alarm technician, are employed on a full-time salaried basis. The part-time fire alarm technician is not excluded by definition of the bargaining unit nor by definition of the position of "fire alarm technician" set out above. Article 15.03 of the collective agreement provides for money payment to part-time fire alarm technicians in lieu of various benefits and overtime provisions enjoyed by full-time employees. We therefore conclude that the part-time fire alarm technician is included in the bargaining unit of the collective agreement.
5The Labour Relations Act, R.S.O. 1980, c. 228, section 2, states that it does not apply:
(e) to a full-time fire fighter within the meaning of the Fire Departments Act;
The Fire Departments Act, R.S.O. 1980, c. 164, section 1(d), defines a "full-time fire fighter" to mean:
a person regularly employed in the Fire Department on a full-time salaried basis and assigned exclusively to fire protection or fire prevention duties, and includes officers and technicians.
Fire Protection or Prevention duties are left undefined as are the terms "officer" and "technician". Section 5 of the Fire Departments Act gives the full-time fire fighters the opportunity to bargain with the council of the municipality regarding renumeration, pensions or working conditions in the following fashion:
5.-(1) When requested in writing by a majority of the full-time fighters, the council of the municipality shall within sixty days after receipt of the request bargain in good faith with a bargaining committee of the full-time firefighters, and shall make every reasonable effort to come to an agreement, for the purpose of defining, determining and providing for renumeration, pensions or working conditions of the full-time firefighters other than the chief and the deputy chief of the fire department.
(3) Where not less than 50 per cent of the full-time fire fighters belong to a trade union, any request under subsection (1) shall be made by the union.
6.-(1) Where, after bargaining under section 5, the council of the municipality or the bargaining committee is satisfied that an agreement cannot be reached, it may by notice in writing to the bargaining committee or the council, as the case may be, require all matters in dispute to be referred to a board of arbitration of three members, in which case the council and the bargaining committee shall each appoint a member and the third member, who shall be the chairman, shall be appointed by the two members so appointed.
7.-(1) Every agreement under section 5 and every decision or award under section 6 shall be in writing and is binding upon the municipality and the full-time fire fighters.
(emphasis added)
6All the applicants are fire alarm technicians (3 full-time and 1 part-time). They submit that they do not fall within the statutory definition of "full-time fire fighter" because they are not "exclusively assigned to fire protection or prevention duties". In addition to their fire alarm room responsibilities, they do a range of "clerical duties" for the fire department such as writing all correspondence, doing the payroll for volunteer fire fighter, bookkeeping, secretarial and reception duties. They submit that no alarm room technician has ever been qualified to perform fire fighting duties per se prior to or after taking the alarm room technician job.
7The respondent claims that the applicants are encompassed with the definition of "full-time fire fighter" in the Fire Departments Act because all of their duties are integral to and necessary for fire protection services of the department. The respondent also points out that the definition of "full-time fire fighter" itself, which explicitly includes "technicians", indicates a legislative intent to include those who do not have exclusive involvement in fire-fighting duties. Alternatively, the respondent states that the Board should not permit the application even if it can find that the applicants are not full-time fire fighters within the definition of the Fire Departments Act because the dispatchers or alarm room technicians are more appropriately included within the fire fighters unit. The respondent relies on the Board's decision in The Corporation of the Town of Oakville, [1970] OLRB Rep. Oct. 754 as authority for the proposition that this Board has found employees like the applicants to be "full-time fire fighters" and excluded from the Labour Relations Act by section 2(e). This Board also concluded in the same decision that even if they are not so excluded they ought not to be included in a unit different from the fire fighters because of the different economic sanctions available between the Labour Relations Act (strike/lockout) and Fire Departments Act (compulsory arbitration). The respondent also relied on an arbitration rights decision of Richard R. Walter, Q.C. between the Chatham Fire Fighters Association, Local 486, International Association of Fire Fighters and the Corporation of the City of Chatham, unreported, dated August 12, 1980, wherein the arbitrator found that the position of control room operator/dispatcher for the operation of the alarm room of the Chatham Fire Department is one covered by the collective agreement between the City and the Association. In the course of arriving at this conclusion the arbitrator considered the definition of "full-time fire fighter" in the Fire Departments Act and determined that those in the position of operator/dispatcher in the Chatham Fire Department were included. This finding was consonant with and relied upon another arbitration (rights) decision, i.e., Re Borough of Scarborough and Scarborough Professional Fire Fighters Association, Local 626, I.A.F.F. (1977) 1977 CanLII 2883 (ON LA), 15 L.A.C. (2d) 71 (Burkett). Also cited was the decision of Paul C. Birnie in Nepean Professional Fire Fighters Association Local 1487 and the Corporation of the City of Nepean, unreported, February 11, 1980.
8We have considered the submissions of the parties and have come to the conclusion that three of the applicants are full-time fire fighters within the meaning of section 1(d) of the Fire Departments Act. Fire protection or fire prevention duties include more than fire-fighting duties. This is made clear by the Fire Departments Act itself. In section 2 of the Act the hours of work for full-time fire fighters are set out according to whether the full-time fire fighters are "assigned to fire-fighting duties" or "assigned to other than fire-fighting duties". Therefore it is apparent that a person does not cease to be a full-time fire fighter if assigned to duties other than fire-fighting. Having regard to the duties described by the applicants we find that all of these duties are performed for the Fire Department and that most are integral to its operation. The alarm room dispatching functions fall squarely within the area of fire-protection duties. This has been affirmed not only in the Town of Oakville decision of this Board but in the Chatham decision, supra, (which, although not binding on us, provides helpful guidance). In the Town of Oakville case the Board found that alarm room operators who spent 99% of their time dispatching fire units on receipt of an alarm and 1% of their time typing correspondence for the Fire Chief and the Fire Department personnel were assigned exclusively to fire protection or fire prevention duties and, therefore, were full-time fire-fighters excluded from the Labour Relations Act by section 2(e). In our view the fact that the applicants may perform a greater amount of clerical functions necessary to the operation of the fire department does not take them out of the definition of full-time fire-fighters. We are persuaded that the alarm room functions in combination with their other duties are duties integral to fire protection for the Township of Kingston whose actual fire-fighting is done in large part by a volunteer force. We interpret the definition of fire-fighter in section 1(d) of the Fire Departments Act to be designed to include all functions necessary and integral to the Fire Department so long as they are exclusively performed on a full-time basis. The definition itself states that it includes "technicians" — we agree with the respondent that this displays a legislative intent to encompass more than those engaged in fire-fighting duties. The applicants are undoubtedly technicians because they are described in the collective agreement as "alarm room technicians" and therefore were regarded by the parties thereto as "technicians". While this designation does not dictate our conclusion, it does confirm our assessment that 3 of the 4 applicants fall within the definition of "full-time fire fighters" in section 1(d) of the Fire Departments Act.
9Insofar as the applicant employed on a part-time basis is concerned, we consider that this individual alone could apply for the termination of the bargaining rights with respect to herself because she is not excluded by section 2(e) of the Labour Relations Act. While it is clear that an application for certification could not have been brought by a trade union to obtain representation rights for her alone, because section 6(1) requires that in every case an appropriate bargaining unit must have more than one employee, it is nevertheless possible for the Board to receive and process a termination application by the only employee in a bargaining unit (see, A. R. Milne Electric Ltd., [1982] OLRB Rep. June 911). The respondent argues that this ought not to be permitted because in the Town of Oakville, as an alternative to its major conclusion that alarm room operators were excluded from the Labour Relations Act by reason of being full-time fire-fighters, the Board found that it would be inappropriate to include such operators in a unit with other non-full-time fire fighters. We do not think this reasoning is applicable to this termination application because the Township of Oakville case was considering an application for certification and section 6(1) requires the Board to consider the appropriateness of the unit applied for. No similar requirement is set out in connection with termination applications and the Board does not normally consider whether the unit forming the basis of the termination application is appropriate. We therefore will allow the application to proceed insofar as the part-time fire fighter is concerned.