The Corporation of the City of Brantford v. Brantford Professional Fire Fighters’ Association

2458-99-M The Corporation of the City of Brantford, Applicant v. Brantford Professional Fire Fighters’ Association, Responding Party.

2684-99-M City of Hamilton, Applicant v. Hamilton Professional Fire Fighters Association, Responding Party.

BEFORE: Laura Trachuk, Vice-Chair.

APPEARANCES: R. Ross Dunsmore, Samara B. Kaplan, Glen Peace and Ross Bennett for the applicants; Howard Goldblatt, Ed Glover and Larry Staples for the responding parties.

DECISION OF THE BOARD; June 28, 2000

1. These are two applications with respect to the status of certain individuals pursuant to section 54(2) of the Fire Protection and Prevention Act (referred to as the “FPPA”). The responding parties (referred to as the “Associations”) have raised two preliminary objections to the Board proceeding with these applications. The Associations claim that the applicants (referred to as the “Cities”) must exercise their entitlement to designate a certain number of individuals as managerial or confidential exclusions from the bargaining units before the Board should proceed to hear the applications. The Hamilton Firefighters Association also argues that the City of Hamilton’s application is premature in view of the pending amalgamation pursuant to the Fewer Municipal Politicians Act, 1999 and Schedule C to that Act, the City of Hamilton Act, 1999. The parties filed thorough written materials and also presented oral argument with respect to these issues. This is the Board’s decision with respect to the two preliminary issues.

2. The sections of the FPPA relevant to this preliminary argument provide as follows:

3. (1) In this Part,

“Board" means the Ontario Labour Relations Board; (“Commission”)

“collective agreement” means an agreement in writing between an employer and a bargaining agent that represents firefighters employed by the employer containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the bargaining agent or the firefighters; (“convention collective”)

“employer” means a municipality, person or organization that employs firefighters; (“employeur”)

“firefighter” means a person regularly employed on a salaried basis in a fire department and assigned to fire protection services and includes technicians but does not include a volunteer firefighter. (“pompier”)

(2) For the purposes of this Part, a person shall be deemed not to be a firefighter if,

(a) in the opinion of the Board, he or she exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations; or

(b) he or she is a person designated under subsection 54 (4).

(3) Sections 110 to 112, subsections 114 (1) and (3), sections 116 to 118 and 120 to 123 of the Labour Relations Act, 1995 apply with necessary modifications to proceedings before the Board under this Act and the Board may exercise the powers under those provisions as if they were part of this Act.

45. (1) The firefighters employed in a fire department constitute a bargaining unit for the purposes of collective bargaining under this Act.

(2) The bargaining unit shall not include persons who are deemed not to be firefighters under subsection 41(2.

54. (1) An employer may assign a person employed by it to a position which, in the opinion of the employer, involves the exercise of managerial functions or employment in a confidential capacity in matters relating to labour relations, but, subject to subsection (4), the assignment is not conclusive of the question of whether the person does exercise such functions or is employed in such capacity.

(2) Subject to subsection (4), the Board, on application of an employer, has exclusive jurisdiction to determine any question as to whether a person exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations, and its decision is final and conclusive for all purposes.

(3) Subject to subsection (4), a person shall remain in the bargaining unit until the Board makes a determination under subsection (2), unless the parties otherwise agree.

(4) Subject to subsections (5) and (8), an employer may, in its sole discretion, designate a person described in subsection (1) as a person who shall for purposes of this Act be conclusively deemed to be exercising managerial functions or acting in a confidential capacity in matters relating to labour relations.

(5) An employer shall not designate a person under subsection (4) unless the person consents to the designation.

(6) If a person does not consent to a designation under subsection (4), the employer shall assign the person to a position in the bargaining unit. If the position to which a person is assigned has a lower salary than the position held by the person before the assignment, he or she is entitled to be paid the same salary and to receive the same benefits after the assignment as he or she was paid and received before the assignment.

(7) A designation under subsection (4) may be revoked by the employer at any time.

(8) An employer shall not designate under subsection (4) more than,

(b) three persons, if the employer employs 25 or more but fewer than 150 persons;

(d) five persons, if the employer employs 300 or more persons.

(9) For the purposes of subsection (8), the number of persons employed by the employer is the sum of,

(a) the number of persons employed by the employer who are firefighters; and

(b) the number of persons who are performing or conclusively deemed to be performing managerial functions with respect to firefighters or acting in a confidential capacity in matters relating to labour relations with respect to firefighter.

3. Prior to 1997, labour relations between the parties were governed by the Fire Prevention Act. That act provided that all full-time firefighters were included in a bargaining unit of firefighters except the chief and the deputy chief. There was no process for a fire department to apply to the Board for a declaration that any other individuals were exercising managerial functions or were employed in a confidential capacity in matters respecting labour relations. The Cities submit that, as a result, management functions had to be exercised by bargaining unit members. They have submitted one arbitration decision in which the arbitrator found that a platoon chief could issue discipline to other members of the bargaining unit. (see Corporation of the City of York, July 28, 1995, Picher, unreported). In 1997, the FPPA was passed. As set out above, section 45 of the FPPA provides that all “firefighters employed in a fire department constitute a bargaining unit for the purposes of collective bargaining” unless those persons are deemed not to be firefighters under subsection 41(2).

4. The FPPA no longer specifically excludes the chief and deputy chief of a department from the bargaining unit. However, it provides a number of ways in which a City can seek to remove individuals from the bargaining unit to provide a managerial workforce. The FPPA also now provides for a conciliation process for collective bargaining which was not previously available under the Fire Prevention Act.

5. Subsection 54(4) provides that the City can designate individuals who will be deemed to be exercising managerial functions or acting in a confidential capacity in matters relating to labour relations. The number of people to be so designated is prescribed under section 54(8) and depends on the size of the fire department. In this case the City of Hamilton is currently entitled to designate five people and the City of Brantford is entitled to designate two.

6. Subsection 54(2) provides that an employer may ask the Board to determine whether a person exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations. Pursuant to section 41(2) such a person would not be a “firefighter” and would therefore be excluded from the bargaining unit. In the City of Hamilton application, the City requests that the Board find that 21 individuals including, the chief and two deputy chiefs, are excluded from the bargaining unit pursuant to subsection 54(2). In its application however, the City also says that the chief and the two deputies are currently excluded. In the City of Brantford application the City is asking that the Board declare that six individuals be excluded from the bargaining unit. In that case the City takes the position that the chief and the deputy chief are excluded pursuant to the collective agreement and it is not seeking a declaration with respect to them.

7. The Associations frame their argument within the statutory regime for firefighters which they note is unique in a number of respects. Firefighters have statutorily described bargaining units and only a “sketchy” set of provisions for determining the bargaining agent and how it is to be replaced. The other unique aspect, according to the Associations, is the automatic designation of individuals out of the bargaining unit. The Associations argue that the scheme of the FPPA requires an employer of firefighters to make its “automatic” designations pursuant to section 54(4) prior to asking the Board to make any determinations under section 54(2). The Associations make this argument first as a matter of statutory interpretation and alternatively as a matter which ought to affect the exercise of the Board’s discretion. According to the Associations, the Board ought not to permit the Cities to apply for managerial exclusions in the absence of exercising the designation powers open to them.

8. The Associations argue that the intention of the legislature in drafting this legislation was to require an employer to exercise the “automatic” exclusions prior to applying to the Board under section 54(2). They submit that the process of using automatic exclusions is consistent with the model in effect for 50 years under the Fire Prevention Act. The Fire Prevention Act automatically excluded the chief and deputy chief. The FPPA merely expands the number of exclusions. “The use of an automatic designation system removed the possibility of litigation and disagreement between the parties and, therefore, was intended to promote the smooth organizational operation of the Fire Department.” The Associations argue that the legislature could never have intended that the positions of chief and deputy chief would not be included in the number of automatic designations. It could not have been contemplated that an employer could apply to the Board for a determination that they exercise managerial functions and use the designations for someone else. The Associations point out that pursuant to section 54(3) the chief and deputy chief and anyone else who is not designated remains in the bargaining unit until the Board makes a determination. The Associations suggest that the legislature could not have intended that the chief and the deputy be included in the bargaining unit until the Board determines otherwise. Such an interpretation would “be inconsistent with the intention of the Legislature to foster a harmonious organizational structure and avoid unnecessary litigation.” In these cases, if the Cities’ interpretation is accepted, the chief and deputy chief in Hamilton are currently in the bargaining unit and should be paying dues as they are subject to an application and therefore in the bargaining unit until the Board’s determination is made. In the Brantford case, the fact that the chief and deputy chief are excluded from the bargaining unit in the collective agreement should not be considered an agreement to exclude them under the current FPPA because their exclusion only reflected the Fire Prevention Act. The chief and deputy chief in Brantford would also therefore be in the bargaining unit if the Cities’ argument were accepted.

9. The Associations argue as well that if a fire department is not required to exercise its automatic exclusions prior to making an application to the Board, it could increase the number of exclusions to an absurd or unreasonable degree. It uses the example of a five person fire department. In such circumstances, according to the Associations, the employer could designate two individuals and then seek to have the Board exclude the chief and deputy with the result that only one person in the five person department would be in the bargaining unit. The Associations argue that the legislature could never have intended such a result.

10. The Associations submit that the provision which permits the employer to revoke a designation and assign it to someone else “is consistent with the desire of the Legislature to allow employers to modify their managerial structure as it deems appropriate without the necessity of seeking a determination from the Labour Relations Board on managerial and confidential status.”

11. The Associations argue further that sections 54(1)(2) and (3) which all refer to a determination to be made by the Board on managerial or confidential status, are all made subject to subsection (4) the automatic designation section. The scheme therefore anticipates that the designations will be exercised prior to any determination by the Board. The FPPA could not have been intended to permit these employers to have the Board determine that individuals are to be excluded from the bargaining unit on a managerial or confidential basis and then after that process designate other individuals out of the unit who do not perform those functions.

12. The Associations argue that in interpreting the FPPA the Board should minimize restrictions on access to collective bargaining “particularly where an employer seeks to deprive employees of long established collective bargaining rights.”

13. The Associations submit further that the Board should not deprive those who would be designated if the Cities were required to designate first, the opportunity provided by section 54(4) to refuse to be excluded from the bargaining unit.

14. According to the Cities, the Board’s role in an application under section 54(2) is the same as its role in an application pursuant to section 1(3)(b) of the Labour Relations Act, 1995. The Cities claim that the arguments made by the Associations should appropriately be made before an arbitrator.

15. The Cities deny that the FPPA requires them to designate individuals before they can apply to the Board for a determination pursuant to section 54(2). They point out that the Act stipulates that they can choose whether to use their designations or to make an application to the Board at their sole discretion. The Board has no power to require them to make any choice or to choose in any order. The Board’s practice in cases under section 1(3)(b) of the Labour Relations Act, 1995 is not to defer a determination because a party makes an argument that circumstances may change. The Board decides such cases on the facts as they exist on the day of the application. In applications under section 54(2) of the FPPA, the Board must also decide the question put before it in the application as of that date and not defer or delay.

16. The Cities argue that the scheme of the Act provides employers of firefighters with three choices about how managerial functions are assigned. Under section 54(1) it can assign managerial duties to an employee. However, that assignment is not conclusive of the question as to whether exercising those functions excludes the individual from the bargaining unit. The individual remains in the bargaining unit until the parties agree to exclude him or her or the employer decides to exercise one of the other options. Pursuant to section 54(4) the employer can designate someone to whom it has assigned managerial functions under section 54(1) and that person is deemed to be exercising managerial functions or to be acting in a confidential capacity in matters relating to labour relations. An employer is entitled to make such a designation at its sole discretion. If it does so, the designation is conclusive. However, the individual designated can refuse and if she or he does so, she or he must be assigned to a position in the bargaining unit and red circled. The Cities posit that if someone refused a designation they would have to transfer that person, post the vacated position with a requirement that anyone hired must accept designation and then after that process, designate the person. They argue that that could be expensive and time consuming so an employer might not want to use that approach. They also note that having three or four red circled employees would be expensive.

17. The Cities suggest that they were therefore given the third option. Under section 54(2) they have the sole discretion to ask the Board to exercise its exclusive jurisdiction to determine whether a person is exercising managerial functions or is employed in a confidential capacity in matters relating to labour relations. If a person is determined to fall into one of those categories they are deemed not to be firefighters and are excluded from the bargaining unit. The choice is to be made at the sole discretion of the employer and the FPPA does not impose any time limit or procedure by which the choice must be made. As the choice is at the sole discretion of the employer the Board has no role in requiring it to make a certain choice.

18. The provisions of the FPPA have been considered in an arbitration decision, The Corporation of the City of Timmins and the Timmins Professional Firefighters Association (May 28, 1999, Tims, unreported) which was submitted by the Cities. In that case, the City of Timmins had designated the Chief Fire Prevention Officer and one of the platoon chiefs pursuant to section 54(4) and they had agreed to the designation. The Association in that case argued that the individuals were performing the same duties they had always performed and since they had been in the bargaining unit and the other platoon chiefs were still in the bargaining unit they were performing bargaining unit work. They also argued that the employer cannot exercise its right to designate under section 54(4) arbitrarily, discriminatorily or in bad faith. The arbitrator found that she had the jurisdiction to construe the FPPA pursuant to section 53(9)(j). She then found that the employer’s right to designate an employee under section 54(4) is not unfettered. Section 54(1) provides that an employer may assign a person to a position which exercises managerial or confidential functions. Therefore, before designating an employee pursuant to section 54(4) the employer must form an opinion pursuant to section 54(1) that the person has been assigned to a position involving managerial functions. The employer’s opinion in that regard must be formed in good faith and in a non-arbitrary, non-discriminatory manner. The arbitrator found that the work being performed was the same as the work the individuals had performed while in the bargaining unit and was the same as that performed by the other platoon captains who were still in the bargaining unit. She found that there was therefore no basis for the employer to form an opinion that the work was managerial and it therefore acted arbitrarily and its designation could not stand. She notes however, that in an application to the Board, the Board does not determine whether managerial duties are being performed in the employer’s opinion but whether they are actually being performed.

19. The arbitrator also accepted the Association’s alternative argument that the collective agreement prohibited the employer from assigning work customarily performed by bargaining unit members to non-bargaining unit members. The Cities also point to the above case to show that what the Associations call “automatic” exclusions are not actually “automatic”.

20. The Cities argue that now they have choices with respect to how many individuals with management functions should be excluded from the bargaining unit. The choices are at their sole discretion and each present different risks. At the Board, the employer may lose and the managerial functions may fall into the bargaining unit. However an employee may refuse designation and the employer will be obliged to keep her at her former salary no matter what assignment she subsequently receives. There are two other choices. The employer can leave the work in the bargaining unit as before, or the parties can agree to exclude a person from the bargaining unit.

21. The Cities deny that the reference in sections 54(1)(2) and (3) to being “subject to subsection (4)” indicates an intention that the designations would occur prior to the determination of status by the Board. “Rather the Board would have jurisdiction to determine whether or not an employee is exercising managerial or confidential functions if it has not already been designated by the employer as such.” The phrase “subject to subsection (4)” is a limitation which should be interpreted as meaning “except when subsection 54(4) is utilized”. The Board has exclusive jurisdiction to determine firefighter status unless the employer has designated under section 54(4). The Cities also note that under section 41(2) the Board’s opinion is listed before the employer’s designations.

22. The Cities also argue that requiring them to use their designations prior to applying to the Board pursuant to section 54(2) could lead to difficulties in conducting their operations. They may not have as many managers as they need and could face the same problems as the City of Timmins faced with only being able to designate one of five captains.

23. The Cities also submit that the designations are to be used when they require more managers but none of its employees perform sufficient management duties to be excluded by the Board. Once designated under section 54(4) the City could give them additional managerial duties.

24. The Cities deny that it was intended that the automatic designations be used for fire chiefs and deputy fire chiefs. It notes that in almost every collective agreement the chief and deputy are excluded so it is not necessary to use the designations or apply to the Board as in respect to them. In other cases, an application to the Board would be a mere technicality. They also argue that if they use their designations for the chief and deputy under the statute they could refuse and they would have to be paid their salaries for performing bargaining unit work. They argue that the issue of whether they must be in the bargaining unit and should be paying dues if they are seeking to exclude them should be the subject of a grievance and is not a matter for the Board to determine.

25. The Cities also noted in oral argument that a determination that they had to make their designations first would not mean that they would have to designate any of the people they seek to exclude through these applications. They could designate completely different people.

26. The Cities deny that an interpretation which does not require designations to be used first would lead to abuses. They point to the City of Timmins decision (supra) to show that any perceived abuse can be controlled through the arbitration process although it does not agree with that particular decision.

27. The Cities point out that there is nothing in the statute which says that the designations must be used first and the legislative debates do not support such an interpretation.

28. The Cities also argue that they have the sole discretion to designate and to revoke a designation. However, they note that it must follow from the Associations’ argument that if they revoked a designation after an application to the Board, the Associations would claim that they had to make another one. However the legislation does not require that and leaves designations and revocations to the sole discretion of the employer.

29. The Cities submit that the scheme of Part IX of Bill 84 was intended to assist them with managing the difficulties of downloading and also to address the kinds of problems identified in the City of York decision (supra).

30. The Associations reply that that the “designation process was intended to enable the Employer to exclude, readily, a defined number of persons without the need to establish their excluded status before the Labour Board. It is only once that process is concluded that the employer can then seek any additional exclusions which it wishes to claim.” They point to the Cities’ claim that section 54(4) is to be used to allow employers to designate persons who do not perform sufficient duties for the Board to find that they are managerial as the very reason why the Cities’ interpretation should not be accepted. The Associations argue that it could not be intended that section 54(4) could be used to designate people who are not exercising managerial functions, or who the Cities do not even think are exercising managerial functions, from the bargaining unit.

31. The Associations deny that prior to Bill 84 there were difficulties in the management of fire departments as a result of the limited number of managerial exclusions. They deny that any bargaining unit members were acting in a managerial or supervisory capacity. They also deny that the situation of the platoon chiefs in the City of York, (supra) was representative of the situation elsewhere in the province. According to the Associations there was no history of a problem which needed a radical reformation and section 54 should not be interpreted as a response to such a problem.

32. The Associations deny that the Cities could designate persons under section 54(4) who do not perform sufficient managerial functions to be excluded by the Board. They assert that the Cities can only designate individuals who are in fact performing managerial or confidential functions and that section 54(1) requires them to form the opinion that the position involves managerial or confidential functions in order to assign a person to a position which may be excluded. The Associations argue that this interpretation is consistent with the City of Timmins decision (supra) and means that the employer should determine who is in fact exercising managerial and confidential functions and designate them first.

33. The Associations respond that no weight should be placed on the fact that the Cities are given the sole discretion to apply to the Board for a determination under section 54(2) as that is consistent with the fact that all of the firefighters are in the bargaining unit. They assert that it is counterintuitive that they would make such an application.

34. The Associations deny that Bill 84 is designed to permit employers to override the contracting out provisions in most agreements through use of the designation provisions.

35. The Associations argue that the fact that section 54 says “subject to” either supports their position that the designation rights must be utilized first or is neutral to it.

36. The Associations deny that the legislative debates indicate anything about the order in which the options are to be exercised. On the other hand, the Associations rely upon the position of the Fire Marshal of Ontario, whom they claim was one of the chief architects of Bill 84. The Associations submitted a letter from the Fire Marshal in which he advises that he did recommend in his report to the solicitor general that fire chiefs be included in the automatic exclusions.

37. The Associations deny that their interpretation of the legislation would limit the flexibility of the Cities to manage their operations. On the contrary, the ability to designate the senior managers immediately will assist the employer in managing the enterprise.

38. The Associations submit that they are not necessarily asking the Board to direct that a certain sequence must be followed with respect to the options under the FPPA. They suggest rather that they are asking the Board to decline to proceed with these applications on the basis that they are premature until the designations are made.

Decision

39. The argument presented by the Associations is reasonable but is not supported by the legislation. The Associations argue that the scheme of the FPPA requires that an employer of firefighters designate those performing managerial duties under section 54(4), i.e. the chief and deputy. If entitled to further designations it may use them for individuals to whom it has assigned managerial duties in good faith. It is only after this process that the employer may apply to the Board for a determination that other persons should be excluded. Certainly that is a logical sequence and is likely the one followed by most of the employers of firefighters in the province. The most obvious reason to include section 54(2) in the Act was to make it unnecessary for most employers to take the time and expense of filing and proving applications to the Board. If an employer believed it required more managerial employees than its designations permitted, then at least the parties would not have to litigate those that had been designated thereby shortening the process significantly. However, while it may have been contemplated that employers of firefighters would use the provisions in that sequence, the Act does not actually require that they be used that way. The provisions indicate that the employer can choose to designate employees or apply to the Board at its sole discretion. There is no sequence set out in the Act and provisions imposing a sequence would not be difficult to include if that was what the legislature intended (see for example the provisions of the Public Sector Labour Relations Transition Act). The words “subject to” found in sections 54(1) and (2) do not indicate a sequence in the context of those provisions. In this context they must be interpreted as meaning “unless” or “except” where someone has been designated pursuant to section 54(4). Furthermore, the FPPA permits employees whom the employer seeks to designate to refuse the designation. Therefore, if the employer wants to avoid that possibility, the FPPA requires that it prove that the employee is actually working in a managerial or confidential capacity through an application to the Board.

40. The Associations are concerned that the FPPA not be interpreted in a way which would allow an employer to designate employees who would be considered firefighters in the bargaining unit if the Board were to determine the matter, or that an employer could designate an employee after the Board has found that he or she does not exercise managerial or confidential functions. However, requiring an employer to use its designations first would not guarantee that they would only be used for managerial employees and the Associations would have to look elsewhere, as the Association did in the City of Timmins case, supra to rectify the situation.

Issue No.2 The Board’s Jurisdiction with respect to the City of Hamilton Application

41. The Hamilton Professional Firefighters Association also objects to the continuation of the application at this time on the grounds that it is barred by the Fewer Municipal Politicians Act (1999) (referred to as “Bill 25”) and Schedule C to that Act, the City of Hamilton Act (1999) (referred to as “Schedule C”). The legislation came into effect in December, 1999, approximately one month after the application was filed. The Association also makes a related objection that the application is premature in light of the pending amalgamation of the City of Hamilton and six other municipalities.

42. The relevant provisions of Bill 25 and its Schedule C are as follows:

Section 18. …

(5) the primary function of the transition board is to facilitate the transition from the old municipalities and their local boards to the city and its local boards,

(a) by controlling the decisions of the old municipalities and their local boards that could have significant financial consequences for the city and its local boards; and

(b) by developing business plans for the city and its local boards in order to maximize the efficiency and costs savings of this new municipal structure.

(6) The transition board has such powers and duties for the purposes of this Act as may be prescribed by a regulation made under this section, in addition to the powers and duties set out in this Act.

(7) The transition board may authorize one or more of its members to exercise a power or perform a duty under this Act on its behalf.

(9) The Minister may make regulations providing for the matters referred to in this section as matters to be dealt with or prescribed by a regulation made under this section.

20. (1) The transition board shall establish the key elements of the city’s organizational structure and hire the municipal officers required by statute and any employees of executive rank whom the transition board considers necessary to ensure the good management of the city.

21. (1) The Minister may make regulations providing that an old municipality or a local board of an old municipality,

(a) shall not exercise a specified power under a particular Act;

(a) shall not exercise a specified power under a particular Act unless it is exercised in the manner specified in the regulations;

(b) shall not exercise a specified power under a particular Act without the approval of the transition board or of such other person or body as is specified in the regulation;

(d) shall not exercise a specified power under a particular Act unless it is exercised in accordance with the guidelines, if any, issued by the transition board under this Act.

28. (1) The collective agreement, if any, that applies with respect to employees of an old municipality immediately before this subsection comes into force continues to apply with respect to those employees and with respect to employees hired to replace them until the day on which the collective agreement or the composite agreement of which it becomes a part ceases to apply under subsection 23 (8) or (24 (7), section 29 or subsection 31 (3) of the Public Sector Labour Relations Transition Act, 1997 with respect to those employees.

(2) If no collective agreement is in operation immediately before subsection (1) comes into force, the most recent collective agreement, if any, shall be deemed to be in effect from that day for the purposes of this Act, and subsection (1) applies with necessary modifications.

(3) On the day subsection (1) comes into force, the appointment of a conciliation officer under section 49 of the Fire Protection and Prevention Act, 1997, section 18 of the Labour Relations Act, 1995 or section 121 of the Police Services Act for the purpose of endeavouring to effect a collective agreement between an old municipality and a bargaining agent with respect to employees described in subsection (1) is terminated.

(4) No conciliation officer shall be appointed in respect of a dispute concerning a collective agreement described in subsection (3).

(5) On and after the day subsection (1) comes into force, no bargaining agent is under an obligation to bargain as a result of a notice to bargain given to it by an old municipality and no old municipality is under an obligation to bargain as a result of a notice to bargain given to it by a bargaining agent.

(6) On and after the day subsection (1) comes into force, no bargaining agent shall give notice to bargain to an old municipality under section 47 of the Fire Protection and Prevention Act, 1997, section 16 or 59 of the Labour Relations Act, 1995 or section 119 of the Police Services Act.

(7) On and after the day subsection (1) comes into force, no old municipality shall give notice to bargain to a bargaining agent under section 47 of the Fire Protection and Prevention Act, 1997, section 16 or 59 of the Labour Relations Act, 1995 or section 119 of the Police Services Act.

(8) On the day subsection (1) comes into force, interest arbitrations to which an old municipality is a party and in which a final decision has not been issued are terminated.

(9) Before January 1, 2001, no employee of an old municipality shall strike against the municipality and no old municipality shall lock out an employee.

29. (1) Before January 1, 2001, for the purposes of section 20 of the Public Sector Labour Relations Transition Act, 1997, the transition board may make an agreement with bargaining agents who represent employees of an old municipality to change or not to change the number and description of the bargaining units in respect of which the agents have bargaining rights, and the agreement is binding upon the city as if it had been made by the city.

(2) The agreement does not come into effect until the later of,

(a) the day on which the conditions described in

subsections 20 (7) and (8) of the Public Sector Labour Relations Transition Act, 1997 are satisfied; and

(b) January 1, 2001.

(3) If an agreement is made, during the period beginning 10 days after it is executed and ending when it comes into effect, no application may be made for certification of a bargaining agent to represent employees of an old municipality who are not members of a bargaining unit when the agreement is executed.

(4) During the period beginning when subsection (1) comes into force and ending on December 31, 2000, no application may be made for certification of a bargaining agent to represent employees who are already represented by a bargaining agent and no application may be made for a declaration that a bargaining agent that represents such employees no longer represents them.

(5) On and after January 1, 2001, the right to make an application described in subsection (4) is (subject to the Public Sector Labour Relations Transition Act, 1997) determined under the Act that otherwise governs collective bargaining in respect of the employees.

(6) For the purposes of clause (2) (a) of this section and of subsection 20 (7) of the Public Sector Labour Relations Transition Act, 1997, the transition board shall be deemed to be the employer.

(7) If an agreement described in subsection (1) is made, any agreement made by the bargaining agents concerned under section 21 of the Public Sector Labour Relations Transition Act, 1997 does not come into effect until the later of,

(a) the day on which the conditions described in subsection 21 (2) of that Act are satisfied; and

(b) January 1, 2001.

(8) A copy of the agreement under section 21 of the Public Sector Labour Relations Transition Act, 1997 may be given either to the transition board before January 1, 2001 or to the city after December 31, 2000, for the purposes of clause (7) (a) of this section and of subsection 21(2) of that Act.

(9) For the purposes of subsection 21 (4) of the Public Sector Labour Relations Transition Act, 1997, the transition board or a bargaining agent may make a request to the Ontario Labour Relations Board before January 1, 2000.

30. (1) Before January 1, 2001, for the purposes of section 22 of the Public Sector Labour Relations Transition Act, 1997, the transition board may apply to the Ontario Labour Relations Board for an order determining the number and description of the bargaining units that, in the Board’s opinion, are likely to be appropriate for the city’s operations.

(2) An order by the Ontario Labour Relations Board under section 22 of the Public Sector Labour Relations Transition Act, 1997 is binding upon the city as if the application had been made by the city, and is binding even if the order is not made until after December 31, 2000.

(3) An order made under section 22 of the Public Sector Labour Relations Transition Act, 1997 on an application under subsection (1) cannot take effect before January 1, 2001.

(4) If the transition board applies under subsection (1) for an order under section 22 of the Public Sector Labour Relations Transition Act, 1997, during the period beginning 10 days after the application is made and ending when an order comes into effect, no application may be made for certification of a bargaining agent to represent employees of an old municipality who are not members of a bargaining unit when the application is made.

(5) During the period beginning when subsection (1) comes into force and ending on December 31, 2000, no application may be made for certification of a bargaining agent to represent employees who are already represented by a bargaining agent and no application may be made for a declaration that a bargaining agent that represents such employees no longer represents them.

(6) On and after January 1, 2001, the right to make an application described in subsection (5) is (subject to the Public Sector Labour Relations Transition Act, 1997) determined under the Act that otherwise governs collective bargaining in respect of the employees.

37. (1) This Act applies despite any general or special Act and despite any regulation made under any other Act, and in the event of a conflict between this Act and another Act or a regulation made under another Act, this Act prevails.

(2) In the event of a conflict between a regulation made under this Act and a provision of this Act or of another Act or a regulation made under another Act, the regulation made under this Act prevails.

43. The relevant subsections of Ontario Regulation 101/00 (passed February 18, 2000) provides as follows:

44. (1) Subject to subsection (2), an old municipality or a local board of the old municipality shall not,

(d) hire a new employee, promote or change the job classification of an existing employee or appoint a person to a position;

(c) increase the value of the compensation package, including onetime bonuses, of any employee or statutory officer of the old municipality or of a local board of the old municipality or of any elected or appointed member of the council of the old municipality or of a local board of the old municipality;

(2) Subsection (1) does not apply to anything done with the approval of the transition board or done in accordance with a guideline issued under section 1 or 2.

44. The relevant sections of the Public Sector Labour Relations Transition Act, 1997 (referred to as Bill 136) provide as follows:

45. (1) This Act applies upon,

(a) the amalgamation of two or more municipalities or two or more local boards during the transitional period;

22. (1) Subject to any agreement under section 20 that is in effect, the Board, upon the application of a successor employer or any bargaining agent that has bargaining rights, may by order determine the number and description of bargaining units that are appropriate for the successor employer's operations after the occurrence described in

sections 3 to 10.

23. (1) Following a request under subsection 21 (4) or when making an order under section 22, the Board shall determine which one of the bargaining agents, if any, represents the employees in each bargaining unit whose description is changed by the agreement under section 20 or the order under section 22.

24. Schedule C of Bill 25 provides for the amalgamation of the Regional Municipality of Hamilton-Wentworth; the City of Hamilton; the Town of Dundas; the Town of Stony Creek; the Town of Ancaster; the Town of Flamborough and the Township of Glanbrook into the City of Hamilton on January 1, 2001. In the meantime a Transition Board has been appointed by the provincial government to oversee the transition. As a result of the amalgamation, a new Hamilton Fire Department will be established. Four of the municipalities currently have fire departments which will be amalgamated. The Hamilton Firefighters’ Association asks that the Board exercise its discretion not to proceed with this application until the new fire department has been established. The Association argues that it is only at that time that the parties will know the actual functions being performed by the individuals that the applicant seeks to exclude.

25. On March 13, 2000, the City submitted a document to the Board upon which it relies. The document is an endorsement by the Transition Board of this application. The document is part of the minutes of the 4th meeting of the Transition Board on February 22, 2000. The minutes indicate that that the Transition Board received correspondence from Robert Menagh, Director of Labour Relations for the applicant requesting that it give approval of “an application before the Ontario Labour Relations Board to rationalize 21 managerial positions within the City of Hamilton fire department”. There was a motion to have Mr. Menagh attend and address the meeting “in respect of the application and the need for the Board’s approval”. It appears that Mr. Menagh then attended and the Transition Board adjourned to discuss the matter with him in camera. When the meeting reconvened publicly the Board passed the following motion:

That: The Board hereby approve and endorse the initiative taken by the City/Region of Hamilton, set out and described in the Ontario Labour Relations Board File No. 2684-99-M and communicated in the letter addressed to the Board by Mr. Robert Menagh, Director, Labour Relations, City/Region of Hamilton, under the date of February 21, 2000.

47. The letter referred to was produced at the hearing of this matter at the request of the Association.

48. The Association argues that under Bill 25 the bargaining unit structure for the new fire department must be established by the Transition Board which is presiding over the amalgamation. Under Bill 25 the pre-amalgamation City of Hamilton will lose its authority to deal with the question of exclusions from the bargaining unit, including pursuing this application, on December 31, 2000. The Association argues that section 20(1) above gives the Transition Board the authority to establish the organization structure and hire employees of “executive rank”. Under section 30(1) it is only the Transition Board which has the authority to enter into agreements with bargaining agents to change bargaining unit descriptions prior to January 1, 2001. Only the Transition Board could therefore bring this application according to the Association. Furthermore, it is the Transition Board which must apply to this Board under Bill 136 for an order determining the number and description of bargaining units. The legislature has frozen existing collective bargaining arrangements during the transitional period.

49. The Association argues further that section 50.8(2) of Schedule A of Bill 136 amends s.54 of the FPPA and says that the number of designations in a new municipality is the total number of persons who could have been designated in each municipality. In this case that number will be 12 after January 1, 2001.

50. The Association also argues that section 28(1) of Schedule C provides that a collective agreement will continue to apply to employees of a municipality until it ceases to apply pursuant to the Public Sector Labour Relations Transition Act. The Board therefore cannot order that employees of the City of Hamilton currently covered by the collective agreement are excluded from that agreement which would be the result of a finding that an employee is not a firefighter.

51. The Association argues that the effect that Schedule C of Bill 25 has on collective bargaining cannot be ignored. There will be a new fire department, a new bargaining unit description and the identification of a new bargaining agent. The new bargaining unit description will need to address who is in or out of the unit. However, the applicant, the old City of Hamilton is asking this Board to make findings that will change the description of the old bargaining unit which it can no longer do.

52. Furthermore, the Association challenges the ability of the Transition Board to “approve” an application filed by the City. It takes the position that only the Transition Board can file the application. It asserts that Regulation 101 cannot give the Transition Board the authority to approve such an application by the City if the City does not have that authority under Bill 25. The regulation only says that it has to approve if the City wants to hire or promote or change job classifications of employees. Regulation 101 does not say that the City can apply to the Board for a change in the description of the bargaining unit. By asking the Board to take people out of the bargaining unit the City is essentially asking it to expand the “save and except” clause. However, the Transition Board is the only body with the power to make an application to the Board or to make an agreement with a bargaining agent to change the bargaining unit description prior to January 1, 2001.

53. The applicant refers to section 28(1) of Bill 25. The collective agreement and its bargaining unit description continue to apply to employees until such time as it is changed in accordance with Bill 136. Everything else is frozen.(section 29) The only changes that can be made to the description of the bargaining unit is by agreement between the Association and the Transition Board. Even if the parties agree to amend the description, or the Transition Board applies to the Board for an amendment, it will not come into effect until January 1, 2001(see section 30(1)). Thus the City of Hamilton has no authority subsequent to the passing of Bill 25 and its Schedule C to continue the application.

54. The Association submits, in the alternative, that the Board should defer dealing with this application in order to avoid a multiplicity of proceedings. After January 1, 2001 the new City will have a minimum of 12 “automatic exclusions” and no one can predict at this time what, if any, issues will be litigated. It is possible that while this application is proceeding the City will be restructured and there may be a different dispute about the description of the bargaining unit.

55. According to the Association, proceeding with this application flies in the face of the legislature’s clear intention in this transition period. It is not intended that the City should be able to apply to the Board for an order with respect to a fire department which will not exist by January 1, 2001. If the City can file such an application, so can all of the other towns and municipalities which are going to be amalgamated with it. According to the Association, on January 1, 2001 there would have to be new proceedings and that is not what the transitional process in Schedule C or Bill 136 intended.

56. The City of Hamilton acknowledges that the Transition Board can control its decisions “respecting matters of significant financial consequence” and that only the Transition Board can apply to the Board for a determination on the number and description of bargaining units. However, the City denies that the legislation prohibits is from pursuing this application. It also denies that a determination by the Board as to whether an individual is a firefighter or exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations is a determination with respect to the number or description of bargaining units.

57. The City notes that at the time the application was filed, amalgamations were governed by Bill 136 which did not apply to the City of Hamilton. It will apply to the City of Hamilton but only after the “changeover date”. Bill 25 creates additional authority for the Transition Board prior to that date. However, the City denies that Bill 25 and its Schedule C has interfered with the capacity of the City to proceed with the application it had the capacity to file in November, 1999. Bill 25 and 136 do terminate some labour relations processes, such as conciliation, but do not terminate an application such as this.

58. The City also agrees that Bill 25 section 29 does give the Transition Board the discretion to change the number and description of bargaining units if it can agree with the bargaining agents. If it makes such an agreement it is binding. However, there is no real discretion to change this bargaining unit description since the Act dictates that the bargaining unit is “all firefighters”, and thus there is no “save and except” clause in a firefighter description. Therefore, a determination under section 54 or the exercise of the discretion to designate, is not related to the bargaining unit description.

59. The City also denies that section 28(1) of Schedule C applies to this situation. While that subsection freezes the terms and conditions of employment it does not say that individuals are frozen in certain positions. The City asserts that it has always been the Board’s practice to deal with status questions on the basis of the employee’s duties on the date of the application even if a job is in transition.

60. According to the applicant, the responsibilities of the individuals subject to the application will be regulated by it from the application date November 29, 1999 for 13 months until January 1, 2001. The City has decided that here is enough conflict to have these matters determined now. Furthermore, it asserts, the reality is that after the changeover date the collective agreement will continue to exist for some time because it will take some time to negotiate a new one for the combined fire department. The facts from November 29, 1999 could still have a significant impact in to 2003. The City does not want to delay changes that the chief thinks are necessary and which have been approved by City Council and the Transition Board.

61. The City notes, with respect to Regulation 101, that section 26 (3) provides that a regulation cannot prevent an action approved by the Transition Board. No regulation specifically prohibits the ability of the City to file an application with the Board under section 54(2) of the FPPA or to designate individuals under section 54(4). However, in any case, the City did get approval. Assuming that changing the job classification of an existing employee is covered by Regulation 101, the conclusion must be that it is specifically allowed to proceed as it must only not proceed if it does not have approval.

62. The applicant submits that the individuals it seeks to designate will very likely continue to exercise managerial functions in the new municipality as it will not need fewer managers since the new department will be larger. In any case, they will continue to exercise managerial functions at least until a new collective agreement is reached and thus should be excluded as soon as possible. The City argues that its business plan and organizational structure was intentionally designed to be “dynamic” because it knew of the potential of amalgamation.

63. In reply, the Association reiterates its concern that if the Board proceeds and makes determinations with respect to the list of individuals presented by the City, on January 1, 2001 the City will be able to designate further exclusions. The parties do not know at this time what the new fire department will be like. It also reiterates that section 28 prohibits restructuring during the transition period and notes that the City cannot even hire into the fire department without the approval of the Transition Board. It argues that the City is asking the Board to change the structure of a fire department which will only exist for 5 or 6 months after the decision at most. Furthermore, it argues that the role of the Transition Board itself stymied by this application as the Association will have no interest in entering discussions on issues related to the subject of the application. On the other hand if the Transition Board itself brought the application the Association would have no argument that it was prohibited by Bill 25.

Decision

64. The Board has carefully considered the submissions of the parties. There is nothing in Bill 136 or Bill 25 which deprives the Board of the jurisdiction to proceed with this application. The Board is not being asked to amend the bargaining unit. It is being asked to determine a question with respect to the composition of the bargaining unit. The only thing in Bill 25 and its regulations that would deprive the Board of jurisdiction, is Regulation 101 section 4, which prohibits the old City from changing any individual’s position absent approval of the Transition Board. If an application for a declaration that an employee exercises managerial functions and is therefore no longer in the bargaining unit is covered by Regulation 101 section 4 then the Transition Board would also have to approve any designations made under section 54(4) of the FPPA. Certainly, if new duties are assigned to an individual resulting in a new position that would appear to require approval. But, in any case, the Transition Board has approved this application and the Board finds that that is sufficient under Bill 25 and Regulation 101 for it to proceed.

65. The Association also argued, in the alternative, that the Board should exercise its discretion not to proceed with this application due to the fundamental changes which will occur as of January 1, 2001. However, it is not possible to predict at this point whether determining the status of the individuals identified by the City at this time will hinder the transition to the new municipality. Having a managerial staff identified in the largest of the fire departments to be amalgamated ahead of time, or at least knowing that the individuals are firefighters and not managers, may well facilitate the transition. Therefore, even if the Board had the discretion to decline to proceed with the application or to defer it, this would not be an appropriate case to exercise it.

66. Neither Bill 136 nor Bill 25 contemplate that all labour relations activity will cease during the transition period. For example, a union can still apply to represent the employees in a bargaining unit unless the parties have reached an agreement. Certain processes are specifically terminated, such as conciliation or interest arbitration, and other labour relations matters are specifically frozen. However, there is nothing which prevents an employer from applying to the Board for a determination as to whether an individual is a firefighter. The City of Hamilton continues to be the employer of the firefighters until January 1, 2001. After that date the amalgamated City of Hamilton, will continue to be the employer of the firefighters.

67. The Board will therefore proceed to hear these applications. The hearing is scheduled to proceed on the following three dates October 17, 18 and 19, 2000 at 9:30 a.m. in the 2nd Floor, “Boardroom” at 505 University Avenue, Toronto.

“Laura Trachuk”

for the Board