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

BEFORE: Laura Trachuk, Vice-Chair.

APPEARANCES: Ross Dunsmore, Garth Dix, Dave Clark, Lorna McGrath, Ross Bennett and Amanda Hunter for the applicant; Howard Goldblatt, Luisa Monteiro, Ed Glover, Don Casey, Steve Armstrong, Gord Stubbert, Eugene Neziol, Bruce Carpenter, Henry Watson and Jim Byatt for the responding party.

DECISION OF THE BOARD; May 17, 2001

1. This is an application with respect to firefighter status filed under section 54(2) of the Fire Protection and Prevention Act (the “FPPA”). The applicant (referred to as the “City”) asks the Board to declare that the individuals in the positions of Platoon Chief, Training Officer and Chief Fire Prevention Officer are not “firefighters” as they “exercise managerial functions”. In a decision dated October 11, 2000, the Board held that it would hear the evidence and argument with respect to the Platoon Chiefs first. After it has rendered an interim decision with respect to the Platoon Chiefs it will continue with the hearing with respect to the rest of the positions. This is the Board’s interim decision with respect to Platoon Chiefs.

Legislative Background

2. The background to this dispute is set out in the Board’s decision of June 28, 2000 (cited as City of Hamilton, [2000] OLRB Rep. May/June 437). The Board has only had jurisdiction with respect to the status of firefighters since the Fire Protection and Prevention Act (referred to as the “FPPA” or the “Act”) was passed in 1997. This is the first decision in which the Board must determine whether Platoon Chiefs are firefighters or whether they should be excluded from the bargaining unit. Under the Fire Prevention Act which preceded the current legislation, all full time firefighters, except the Chief and the Deputy Chief, were included in a bargaining unit of firefighters. Therefore, Platoon Chiefs were included in the bargaining unit by statute. The only excluded positions in any fire department, no matter the size, were the Chief and the Deputy Chief. The FPPA changed that scheme significantly. The Act still provides for bargaining units of “firefighters” but it no longer defines that bargaining unit as all full-time firefighters except the Chief and the Deputy Chief. The FPPA provides as follows:

3. (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.

3. Therefore, an employer such as the applicant now has two mechanisms by which it can try to establish a management structure. Under subsection 54(4), it can designate a specified number of people who will then be deemed to be exercising managerial functions. The Act provides however (in subsection 54(6)) that the individuals may refuse. If they do, they must be placed in bargaining unit positions with no loss of pay. The City has chosen to use the other mechanism available for establishing managerial exclusions. It has applied to the Board under subsection 54(2) for a declaration that the Platoon Chiefs exercise managerial functions.

4. The Association argued previously that the City was required to use its designations under subsection 54(4) before asking the Board to make any declarations under subsection 54(2). However, that argument was dismissed in the City of Hamilton, decision supra.

5. As this is the first decision with respect to the issue of whether persons in the position of Platoon Chief are firefighters under the FPPA, the Board has set out a detailed review of the facts and arguments.

Facts

6. The Board heard extensive evidence from three witnesses, the Chief (referred to as “Chief Bennett”, the Deputy Chief (referred to as “DC Dix”) and retired Platoon Chief, William Clawsie (referred to as “PC Clawsie”). Chief Bennett has been in his position for five years. He was Deputy Chief for three and a half years previously. He has been employed by the department for 35 years. DC Dix was a firefighter for 20 years and a Captain for one year before he became the Deputy Chief in 1995. PC Clawsie had worked for the department for 33 years when he retired on October 31, 1999. He was a Platoon Chief for five years and a Captain and Acting Platoon Chief for 12 years before that. All three of the witnesses had held various positions with the Association, including the position of president. At the time of his retirement PC Clawsie sat on the Association’s executive as past president. All three witnesses were called by the applicant. The Association agreed ultimately that PC Clawsie was sufficiently representative that it would call no evidence. Sixty-one documents were submitted. In the end there was little dispute about the facts. There was significant dispute as to how they should be interpreted and about what conclusion should be drawn from them.

7. There is no question that the Platoon Chiefs are supervisors on their shifts, the issue is whether their duties extend to managerial functions. Chief Bennett repeated numerous times that the Platoon Chief “manages his shift”. However, PC Clawsie felt constrained by departmental policies and procedures which accord discretion only to the Chief and the Deputy Chief. Nevertheless, when he retired he told them he appreciated the trust they had in him to carry out the procedures and standards of the department and that they left him alone to direct his shift. What became apparent through the evidence is that most areas of operation in the department are governed by a policy, procedure or rule. The Platoon Chief is responsible for ensuring that the shift operates according to those guidelines. He must exercise good judgment in the areas not covered or where discretion is permitted. However, the Platoon Chief’s most important responsibilities are ensuring personnel are ready when a fire call comes and taking command at a fire scene.

8. The Brantford fire department had approximately 95 full-time employees as of the date the application was made, not including the Chief, the Deputy Chief and the department secretary. There are 84 firefighters in the fire suppression division. (For convenience I will use the pronoun “he” to refer to firefighters as there are no women firefighters in this department. There are women who are control room dispatchers.) The Association represents a bargaining unit of the following: personnel in the ranks of fourth to first class firefighter, Captains, Platoon Chiefs, control room dispatchers, mechanic, Chief Fire Prevention Officer, Fire Prevention Officers, and Training Officer.

9. The department has a rank structure. New recruits are on probation for 12 months. At the end of that period if they successfully complete their exams and are otherwise determined to be successful, they become fourth class firefighters. At the end of another year they can sit the third class exams. If they pass them they move on to third class firefighters. At the end of another year they can sit the second class exams and so on. They are paid at the first class rate at the commencement of the fifth year. Once they become first class firefighters they can sit the Captain exams when they are offered. If they pass they will become Captains when a position becomes available according to seniority. In the meantime they may be assigned to act as Captains on a seniority basis. Once they have become Captains they may sit the Platoon Chief exams. If they pass, and they complete a year of probation as a Captain, they will become Platoon Chiefs when a position becomes available according to seniority. In the meantime they may be assigned to act as Platoon Chief according to seniority. Platoon Chiefs are paid 126% the salary of a first class firefighter. The Association has a role as an invigilator in the exam process.

10. The fire department has three stations, a main station and two substations. The department is divided into four platoons. Each platoon has a Platoon Chief, four Captains, 16 firefighters and a control room dispatcher. Platoons are scheduled to work four day shifts, four off and then four nights in rotation. The day shift is 10 hours long, the night shift is 14 hours. The Platoon Chief usually works out of the main station with two Captains and nine firefighters. One Captain and three firefighters are assigned to substation 2 and one Captain and four firefighters are assigned to substation 3. The Chief and Deputy Chief have offices at the main station.

11. The fire department operates using the concepts of “unity of command” and “span of control”. Unity of command means that each person reports to, and communicates with, the person above him. In the hierarchy the firefighters report to the Captains, the Captains to the Platoon Chiefs and the Platoon Chiefs to the Deputy and the Chief. Instructions and commands are given in reverse order. The span of control is the number of people under someone’s direct supervision. These concepts are designed and implemented specifically for a fire scene but are applied, more or less, at the stations as well. However, that does not mean that Platoon Chiefs do not give direct orders to firefighters at the stations as they certainly do.

12. In March 1999, a new job description was imposed on Platoon Chiefs. It differed from former job descriptions in that it was not passed as a by-law of the City. The new job description imposed more duties on Platoon Chiefs of a supervisory or managerial nature. The new job description provides as follows:

PLATOON CHIEF RESPONSIBILITIES

1. The Platoon Chief is responsible for fire fighting of an administrative and supervisory nature in conjunction with and under the direction of the Fire Chief or Deputy Fire Chief or their designate.

2. The Platoon Chief shall have command and control of all personnel on their respective platoons and the operations of the Control Room and staff assigned to the Control Room and develops station assignments in consultation with the Captain as per Department Policy.

3. Responds to fire alarms and conducts the Incident Management System as per Department Policy.

4. A member of the team responsible for the recruitment of firefighters, this position requires participation in screening of applications, review of test results, interviewing and selecting new recruits when required.

5. Investigates and submits written reports to the Chief or Deputy Chief when violations of regulations and neglect of duty occurs.

6. Makes recommendations on disciplinary matters, up to and including dismissal. Participates in the grievance procedure as required.

7. Conducts annual performance reviews on personnel in their platoon as per Department Policy and makes recommendations on re-classification through the ranks. Coaches personnel to improve performance.

8. Schedules vacations, approves overtime and all other time off for the Platoon as per Department Policy.

9. The Platoon Chief will ensure that the building or buildings and all apparatus and equipment therein are kept in a neat and clean condition, and that the department is in compliance with the rules and regulations pertaining to the Workplace Hazardous Material Information System (WHMIS).

10. The Platoon Chief will ensure that all emergency apparatus and non-emergency vehicles are ready at all times for immediate use and to exercise economy in the use of supplies.

11. Makes recommendations to the Chief on staffing levels and the purchase of equipment and supplies for use by the department to assist the Chief in the preparation of the Department’s annual budget.

12. Reviews fire and occurrence reports, summarizing the data to make recommendations on improvements to future responses and identify training needs.

13. Participates in developing new departmental policies and procedures relating to fire department operations. Train staff. Ensures delivery of training programs to all firefighters to meet departmental objectives and legislative compliance.

14. Conducts regular Health and Safety inspections and investigates line-of-duty accidents in accordance with City policies and requirements of the OH & S Act (and in conjunction with the Occupational Health and Safety Committee) and makes effective recommendations to prevent re-occurrence.

15. Consults with Fire Prevention to develop and maintain building profiles. Recommends expansions, modifications and operational procedures.

16. Ensure that all books, personnel and activity records are kept up to date so that a complete history and accurate account is maintained of the operations of the Platoon Chief’s respective shift.

17. Supervise training of subordinates on his platoon in co-operation with the Training Officer.

18. Generally assists his superior officers in the supervision and prevention of fires and maintaining discipline and efficiency of the Department.

19. In the absence of the Chief or Deputy Chief, the Platoon Chief will act as liaison between the Fire Department and any emergency co-ordinating group.

20. Perform public relation activities and promote fire prevention when required.

21. Responds to inquiries by the public. Attends public information meetings as a representative of the Fire Department to provide information on Fire Department issues.

22. When an emergency call back of personnel has been ordered by the Chief or Deputy Chief, the off-duty Platoon Chief called in will be responsible for the co-ordinating of all personnel and activities at #1 Fire Hall.

23. Shall perform other duties when directed or assigned by the Chief, Deputy Chief or their designate.

24. Chief Bennett testified that all of the new duties were in effect as of March 1999 except for participation in hiring. He had decided not to enforce that obligation temporarily due to complaints from the Association. The Association filed grievances with respect to items 4,6,7 and 11 in the above job description. PC Clawsie testified that he understood that the new duties had not been implemented when he retired in October 1999. In any case, he had not performed them and did not believe he had been asked to perform them. There was no evidence that the new duties had been performed by anyone prior to the date the application was filed.

25. There was no dispute that the Platoon Chiefs supervise the firefighters on their shifts in the sense that the Captains and firefighters report to them. They do not perform the same duties as the firefighters either at the station or on the scene. They ensure, through the Captains, that tasks and training are carried out. The Chief and Deputy Chief communicate to the firefighters through the Platoon Chiefs. However, there is a dispute as to whether the duties and responsibilities are managerial. The parties focussed the evidence and argument with respect to the Platoon Chiefs’ duties on several areas including: responsibility in the absence of the Chief and Deputy Chief; ratio of management to bargaining unit members; performance evaluations; discipline; assignments and time off; responsibility at a fire scene; hiring; conflict of interest; micromanagement of the workforce and training.

Responsibility in the Absence of the Chief and Deputy Chief

15. Chief Bennett and DC Dix work approximately 10 hours per day Monday to Friday. Chief Bennett advised that he worked Saturday or Sunday about 40% of the time. Either the Chief or the Deputy Chief is supposed to be available by pager the rest of the time. For the other 14 hours in the day, the Platoon Chief is in charge of the fire suppression division.

Ratio of Management to Bargaining Unit Members

16. If only the Chief and Deputy Chief are excluded from the bargaining unit, the ratio of management to excluded positions is two to 96 (2:96). If the Platoon Chiefs are excluded as well the ratio is one to 16 (1:16) or, if you only consider the Platoon Chiefs and firefighters one to 22 (1:22).

Promotion and Performance Evaluations

17. Platoon Chiefs do annual performance evaluations of the Captains and Acting Captains in their platoons. This duty involves a written evaluation plus an interview. PC Clawsie testified that he usually involved his Acting Platoon Chief (the most senior Captain in the platoon who has passed the Platoon Chief exams) in the process. Sometimes he would involve a Captain in the evaluation of an Acting Captain. The Platoon Chief and the Deputy Chief jointly do performance appraisals on Acting Platoon Chiefs.

18. The performance evaluations are filled out according to a form. If the person is evaluated as “performing to expectations” the Platoon Chief is not required to add any comments. If the person is marked below or above that, the Platoon Chief must include an explanation. Two of the areas officers are evaluated on are leadership and staff development. After the performance evaluation is completed it is forwarded to the Deputy Chief who reviews and files it. The evaluation is signed by the employee being evaluated, the evaluators i.e. Platoon Chief and Acting Platoon Chief. There is also a line for “Chief/Deputy Chief’s Acceptance”.

19. DC Dix testified that he reviewed the evaluations to see the progress of individuals being evaluated. He said they were kept on file for promotion or for circumstances in which there might be a personnel issue such as discipline. He said that he also used them to determine personnel deficiencies. If a deficiency is identified on an evaluation and the Platoon Chief identifies how it is being addressed, the Deputy Chief would not likely take further action although he would expect the next assessment to be positive.

20. DC Dix explained the examination and promotion process. In order to be promoted, a firefighter must pass a qualifying set of exams and have the requisite seniority. There is a written exam and an oral exam. The firefighter may not take the oral exam until he has passed the written exam. Eighty-five per cent of the oral exam is based on the answers to questions on job knowledge. Fifteen per cent are subjective marks based on past performance, how the person conducted himself in the interview and demeanour. Chief Bennett’s assessment of the performance appraisals usually amounts to about five of the 15 subjective marks. DC Dix recalled that in one instance a firefighter did not receive sixty per cent on the exam questions but the 15 per cent, including the five per cent for the evaluations, allowed him to pass. DC Dix testified he has not seen a case where a negative appraisal has prevented promotion. (There are few negative appraisals.) PC Clawsie testified that he would be called in about an evaluation if a firefighter got a failing grade on an exam.

21. As noted above, the new job description provides that the Platoon Chief will make recommendations on re-classification through the ranks. There was no evidence that any Platoon Chief had done so prior to the application being filed. Chief Bennett acknowledged in cross-examination that promotion was on the basis of passing exams but he said that if a firefighter failed an exam he would rely upon the recommendation of the Platoon Chief as to whether the firefighter could rewrite the exam.

22. Platoon Chiefs also do performance appraisals bi-monthly on probationary employees. Performance appraisals for probationary employees must be completed before they sit an exam. Meetings are held between the Platoon Chief, usually the Captain, and the probationary employee to discuss each one. The appraisals are forwarded to the Deputy Chief for review. Sometimes comments are given to the Chief. PC Clawsie testified that he involves his Captains in those appraisals as they are working more directly with the firefighter. The Platoon Chiefs are not asked whether or not they recommend that a probationary firefighter be retained. The performance appraisals may affect whether a probationary employee is successful and permitted to write the fourth class exam, is let go or has his probation extended. DC Dix recalled four candidates who failed their exams during the probation period but were permitted to rewrite them based on their positive performance appraisals.

23. If the appraisals of the probationary employees are positive, the Chief and Deputy will have little involvement although they do decide if the employees will be kept on. If there are problems with a probationary employee they will have more involvement. The Board heard about one probationary employee who initially received a negative evaluation. Chief Bennett met with him and his subsequent evaluations by PC Clawsie were more positive. He did become a firefighter but further problems arose later.

24. The collective agreement stipulates the criteria for promotions as follows:

9.4 Candidates competing for the various ranks and classifications above 1st Class Fire Fighter must signify their intention in writing, to the Chief, and meet the following criteria:

(a) Recommendations for all promotions in any division in the Brantford Fire Department shall be based on seniority within that division provided that all the requirements for the positions are met. The Brantford Fire Department shall consist of these five divisions: Fire Prevention Bureau, Training Office, Mechanical, Fire Fighting and Control Room Dispatch. The employee’s personnel record will be utilized in assessing the qualifications of the employee being considered for promotion. In the event that one or more employees qualified for promotion to the same rank has equal seniority, the employee attaining the highest aggregate qualifying mark shall be the first promoted. In all other cases of promotion, the employee with the earlier qualification or promotion date for their respective rank shall be the first promoted to any higher rank.

(b) Attain a 60% in each phase of the departmental examinations. It is agreed that candidates who have written and failed to attain the required mark, or who have failed to exercise their option to write, on three (3) separate occasions will not be accepted as candidates for future examinations, except in extenuating circumstances, at the discretion of the Chief.

(c) Attend the Ontario Fire College and other related institutions of learning as determined by the Chief. Successfully complete the prescribed courses.

9.5 Probationary, 4th class, 3rd class and 2nd class fire fighters must attain a passing mark of 60% in all phases of the examination. No salary increase will be made for these classifications until they have successfully passed the examinations. Employees failing their second and/or third year examinations may be permitted to rewrite the examination within one (1) year following such failure and should they pass the re-examination the qualifying seniority date of increase will only be effective from the date of the re-examination. In the event that on re-writing the examinations as outlined herein, the employee should again fail, he will not be retained as an employee.

Discipline

25. There were relatively few examples of discipline being imposed on a firefighter over the last 20 years. (The Board has not included any examples prior to 1980.) The Board has no doubt that the lack of examples of disciplinary action is attributable to the personal discipline and high standards of most members of the department. The Board does not accept that it is attributable, as suggested by the City in argument, to the Platoon Chiefs not wanting to report the infractions of the firefighters because they are in the Association. If that were the case, Chief Bennett or DC Dix were in a position to testify about such things occurring during the many years that they were firefighters or Association executive members. No such evidence was tendered.

26. The Platoon Chiefs are responsible for enforcing the policies and procedures of the department as well as the house rules. The house rules include such things as hours when television can be watched; lunch hours; when people can go to bed; how people should be dressed; language; when the telephone can be used for personal calls. The Platoon Chief may discuss infractions with the Deputy or the Chief. There was an example from 1991 of a Platoon Chief recording actions he had taken with respect to a firefighter abusing phone privileges which had been discussed with the Deputy Chief at the time. In the substations the Captains are responsible for enforcing the house rules but they report to the Platoon Chief if there are any problems. The Chief testified that if he or the Deputy become aware of an infraction of the house rules they tell the Platoon Chief to look after it.

27. Platoon Chiefs do not impose discipline resulting in any loss of pay to a firefighter. They will give verbal reprimands which are not recorded. PC Clawsie said that if a verbal reprimand was required the Chief or Deputy Chief generally knew about it but it was their view that he should deal with it on the shift. There are corrective actions that the Platoon Chiefs do take i.e. relieving a firefighter of driving duties; moving their work location; depriving them of privileges such as the ability to leave 30 minutes early if a replacement from the next shift has come on; giving them menial tasks. PC Clawsie estimated that he had to take such actions once or twice per year. If the firefighter did not like it he would tell him that he could take it up with the Chief or Deputy. The Captains in the substations use some of the same methods to maintain discipline among the firefighters. They advise the Platoon Chief if they are using such actions. Any infraction which requires further investigation, or a permanent record or suspension, is reported to the Chief or Deputy. It is the Chief or Deputy who takes further action. However the Platoon Chiefs do submit memos to the Deputy or the Chief about infractions which may be placed in the firefighter’s file. The Platoon Chief may describe the problem and may suggest that further action be taken. However, they are not involved in the investigation or consulted as to the appropriate penalty. Prior to March 1999, they were not usually present when the Chief and/or Deputy met with the firefighter although PC Clawsie suggested they may be brought in at the end of a meeting and advised of the result. Sometimes, however, they were not even advised of the result. However in two incidents after March 1999, the Platoon Chief was present at the disciplinary meeting with the firefighter.

28. As this is the first time the Board has considered whether someone should be excluded from the firefighter bargaining unit it may be useful to provide some specific examples of the kinds of involvement the Platoon Chiefs have with respect to discipline.

29. In April 1999, Acting Platoon Chief Hogg sent a memo to the Deputy Chief advising him that a firefighter had not reported to duty after attending fire college. He reported that he had granted the firefighter a lieu day. He also noted to the Deputy that when he spoke to the firefighter he was under the impression that he was unwilling or unable to return to work. A meeting was held with the Chief, the Platoon Chief, the Acting Platoon Chief and the firefighter to investigate. The Chief then issued a memo saying that the firefighter would be marked 2.5 hours late for the day and would be deducted 2.5 hours pay. The firefighter also had to pay back 11.5 hours through overtime. The memo indicated that the firefighter had made errors in the matter but also that the Acting Platoon Chief had erred in booking him a lieu day instead of telling him to report to work. Chief Bennett testified that the decision was made with the involvement of all the officers present. The Acting Platoon Chief provided the Chief with a memo recognizing his “error in judgment” and stating that he is in agreement with the mutually agreed upon action with respect to the firefighter.

30. The Board also reviewed documents from an incident in May 1999. PC Clawsie forwarded a report to the Chief about an incident in which the dispatcher had dispatched a vehicle to the wrong address and later corrected it. He did not make a recommendation. PC Clawsie indicates in the report that he had reviewed the matter with the dispatcher and felt that that type of incident would not happen again. A meeting was subsequently held with the dispatcher, the Platoon Chief and Chief Bennett. Chief Bennett issued a verbal reprimand which was recorded on a written report. He indicated that the dispatcher may wish to forward a copy to the Association. The Chief, the Platoon Chief and the dispatcher signed the report.

31. The Board also heard about an incident involving PC Clawsie in September 1996. A firefighter had asked for three change days as he would be out of town. He only provided change slips for the first two days but said that the third would follow. It did not, and on the third day he called in sick. PC Clawsie found this suspicious. He set out the circumstances in a memo to the Chief and asked him to follow up the sick slip. PC Clawsie’s involvement ended at that point. Chief Bennett followed up and the firefighter lost two days sick pay and received a four day suspension. The discipline was grieved and the Association became involved. The firefighter apologized and it was resolved that he would lose six days pay. PC Clawsie was not involved in the grievance or consulted with respect to the resolution. PC Clawsie testified that he felt this was not a minor matter which he could deal with himself and that it was something which should be looked at by management. He said that if he had not brought it to the Chief’s attention he could have been disciplined himself. He testified that he did not hear anything from the Association about this matter.

32. Most of the other examples provided to the Board were of Platoon Chiefs informing the Chief or the Deputy Chief of something that had happened on the shift. For example, the Board saw a handwritten note from a Platoon Chief to Chief Bennett in 1998 describing the Platoon Chief’s involvement in a dispute between a Captain and a firefighter. It appears that this note was for the purpose of informing Chief Bennett of the conflict between the Captain and the firefighter.

33. The Board saw a letter from 1998 from a Platoon Chief which was placed in a firefighter’s file because of improper use of an air horn. The letter indicates that “in consultation with Deputy Dix, I have recommended that your name not be removed from our drivers’ list…” It goes on to say that the firefighter’s name will be removed from the list if there are any further incidents of unsafe driving.

34. The Board saw another example from 1997 of an Acting Platoon Chief advising the Deputy that he had investigated a vehicle accident. He advised that the firefighter agreed he had made a mistake and the Platoon Chief recommended that, given the circumstances and that other drivers had made the same mistake, the firefighter not be removed from driving DC Dix indicated that he agreed with the recommendation.

35. The Board learned of an incident in 1987 in which a Platoon Chief advised the Chief he had been informed that the Captain at station 2 was in a van with a woman during his shift. The Deputy Chief at the time met with the Captain in the presence of the Association president (now DC Dix). The Platoon Chief was not present. A written reprimand was placed in the Captain’s file.

36. There was also an example of the Chief directing a Platoon Chief to take action. In May 1998, Platoon Chief Barber advised Chief Bennett in a memo that a pump on one of the trucks was malfunctioning when one of the firefighters was driving it but was not malfunctioning at the station. The Chief investigated it with the mechanic and firefighter and decided it was a driver error. He directed the Platoon Chief to take action and advise him. The Platoon Chief issued the firefighter a memo advising him that he would not be permitted to drive apparatus with pumps until the officers in the platoon and the Training Officer were satisfied with his retraining. The memo was copied to the Chief.

37. The Board also saw an example of a Platoon Chief asking that discipline not be taken against a firefighter. DC Dix sent a memo to Platoon Chief Casey in March 1999 asking why Platoon Chief Casey thought they should forgo discussion with a firefighter about sick leave usage. The Platoon Chief responded that he had taken steps to deal with the problem and that a discussion with the Deputy might counteract those steps. He recommended that they wait to see if his approach would eliminate the problem. It appears that the Deputy agreed initially but eventually intervened.

38. The new job description states that Platoon Chiefs will investigate and submit written reports to the Chief and Deputy Chief when a violation of the regulations and neglect of duty occurs. It also provides that they will make recommendations on disciplinary matters, up to and including dismissal. However, as of his retirement in October 1999 PC. Clawsie had never done so. He was still of the view that it was not part of his job duties. There was no evidence from the other witnesses that any Platoon Chief had imposed discipline pursuant to the new job description prior to the date the application was filed. The Chief testified that the Platoon Chiefs had the authority to recommend discipline prior to the changes in the job description. Nevertheless, the Board heard no examples of that except for the examples above where the Platoon Chiefs recommended that no action be taken for minor problems.

Assignments and Time Off

39. Firefighters and Captains are assigned to a station for approximately one year at a time. Platoon Chiefs recommend to the Deputy Chief which firefighters and Captains should be assigned to which station. The Deputy will review the list and may or may not agree. PC Clawsie testified that in the last few years he proposed any changes to the Deputy or Chief verbally first so he would not have to put it in writing twice. The Deputy must be informed in writing of any changes. The relevant policy and procedure says that the Platoon Chief is responsible for the rotation of firefighters among the stations under the direction of the Deputy and in consultation with the shift officers. The policy then goes on to specify certain requirements for station changes i.e. first class firefighters may only be assigned to a substation for 24 months and must then be reassigned to the main station for 12 months. The senior firefighter qualified to act as Captain must be assigned to the main station, he may act as Captain at a substation but not for more than three tours of duty. There are also rules for firefighters below first class, for probationary employees and for officers, setting out the length of time they may be assigned to the substations and main station. In some cases the rules specify where they may be assigned. In July 1998, PC Clawsie felt that a different arrangement was necessary and sought approval from the Deputy. Approval was granted but the Deputy noted that it was an exception and any “further requests of this type must be dealt with individually.” In 1995 PC Clawsie also asked the Chief, in writing, if he could transfer a firefighter to Station 2 one month prior to his first class exam. The Chief agreed that he could do so providing that the firefighter had time to study. Also in 1995, PC Clawsie advised the Chief, in writing, that he could not comply with the policy and procedure with respect to temporary replacements due to manpower fluctuations in his platoon. He advised that he would follow the procedures when the manpower problems were corrected and the Chief agreed.

40. The Chief and Deputy Chief decide to what platoon personnel are assigned.

41. The Platoon Chiefs have no authority to call in personnel if they consider themselves to be short staffed on a shift. The exception is that the Platoon Chief can call in staff if firefighters are performing an emergency extrication outside the City. In such circumstances the county pays for the extra personnel and the Platoon Chief may call in staff. There is a protocol with respect to calling in staff but the Platoon Chief has some discretion.

42. The Captains will advise the Platoon Chief as to who is assigned to which vehicle. The Platoon Chief may decide to change the assignment.

43. If a Captain from one of the stations is absent, the Platoon Chief will assign a Captain from the main station. If another one is absent he may assign an Acting Captain pursuant to the collective agreement provisions. A firefighter assigned to an Acting Captain position will receive the Captain’s rate for whatever period of time he is Acting.

44. The Platoon Chiefs spend a lot of time scheduling and reporting absences. The firefighters average between 28 to 35 days off per year including vacation and lieu days for statutory holidays but not including sick days or fire college. There are between 182 to 185 shifts to be covered per year. Therefore rearranging assignments i.e. moving firefighters to different stations and equipment happens on a daily basis. The Platoon Chief must ensure that the number of firefighters at the substations remains constant and must assign firefighters from the main station when someone is absent from the substations. Therefore, when the platoon is operating with reduced numbers, as it usually is, there are fewer firefighters at the main station. If the Platoon Chief finds that he has insufficient people to staff the equipment he may decide not to use one of the trucks that shift.

45. Platoon Chiefs have the authority to grant lieu days and vacation time off. The policy and procedure relating to “Vacation, Lieu Days, Time Owing, Fire College, etc.” is very specific as to how many firefighters may be off at any time. During the period May 1 to October 15, one Captain and three firefighters may be off for vacation or lieu days. Any absences for fire college would be in addition. A firefighter may take the officer’s spot if the officers have had the opportunity to book the day and the Chief or the Deputy approves. During the rest of the year, four firefighters may be booked off per shift including those attending fire college. Vacations, lieu days, time owing may be deferred or altered by the Chief or the Deputy Chief. Any changes to vacation or lieu days once scheduled must be approved by the Chief or the Deputy. On one occasion PC Clawsie cancelled a lieu day for a dispatcher when he was short handed. He knew the reason she had booked off had not materialized and he asked her if she would rather take her lieu day later. He testified that he would not have cancelled it if she had objected. He informed the Deputy of the change in a memo. Chief Bennett testified that PC Clawsie had booked one of the available vacation spots for himself the next day and he took it even though he knew that two firefighters were off sick the day before. Chief Bennett said that the Platoon Chiefs have the power to cancel lieu days. PC Clawsie testified that he could book a firefighter off on “time owing” if he could verify that it was owing (the secretary kept the records) and he did not go over the four people off limit. He also testified that it was not uncommon for him to come on shift and find a memo from the Chief or the Deputy Chief advising him that someone was off on time owing.

46. The Platoon Chief approves shift changes between firefighters. The policy and procedure applicable to shift changes may only be made between firefighters of equal or lesser rank who can perform the same duties. Exceptions may only be approved by the Chief or Deputy Chief. The firefighter must include the reason he is requesting a shift change; he may not just write “personal”. When the Platoon Chief has approved a change day he sends the form to the Deputy Chief who reviews it. The Chief testified that, on occasion, a Platoon Chief may cancel changes that have become official. If a firefighter does not want to put the reason for a request on the form he may advise the Chief or the Deputy Chief. The collective agreement provides:

4.2 Any full-time Fire Fighter requesting a change of shift or shifts must provide the Chief or the Platoon Chief on duty at the time of the request, with the name of a qualified replacement in the judgement of the Chief or the Platoon Chief on duty at the time. When a change has been granted, it shall become official.

47. The Platoon Chief can grant up to three days off on shift change but a whole tour (four days) must be approved by the Deputy or the Chief.

48. The Platoon Chief must also ensure that when the dispatcher is not on duty he or she is replaced with a qualified individual.

49. The Board saw an example of a Platoon Chief cancelling four hours of time in lieu of overtime which had been previously booked off due to a personnel shortage. There was also an example of a Platoon Chief asking the Chief if he should freeze lieu time on a particular day because of the number of people he already had off. The Chief said yes and advised him to allow a lieu day for each person who returned from sick leave.

50. The policy provides that days in lieu of statutory holidays are booked after vacation is booked. The policy provides for a draw to be held among the firefighters for the order of booking.

51. Individuals who return after more than three sick days are supposed to present a doctor’s note to the Platoon Chief which is forwarded to the Deputy Chief. Sometimes other individuals are required to present doctor’s notes for absences. In those cases the Chief or the Deputy Chief would impose the requirement on the individual then advise the Platoon Chief.

52. Staffing arrangements are thoroughly recorded and provided to the Deputy Chief. The Platoon Chief must record all the assignments and who is off in the log book. He must send all lieu day requests he has approved to the Deputy for filing. The Deputy may review them. The Platoon Chief also fills out a form each shift advising who is off and on what basis i.e. off duty, lieu day, holiday, sick day, on course, compensation or change day. He also fills out a form specifying crew assignments, which station and which equipment/truck. The Platoon Chief also initials the replacement form for firefighters being relieved early. The forms are forwarded to the Deputy.

53. The Platoon Chief may grant a paid leave of absence of up to one hour during a shift. The collective agreement provides that the officer in charge may grant a leave the duration of the shift for a family emergency. Essentially, with sickness, family crisis, bereavement etc. a firefighter advises the Platoon Chief that he needs to be absent. The Platoon Chief informs the Deputy via a form or report. The Platoon Chief may indicate how he thinks the time should be designated i.e. sick leave or compassionate leave. However, the Deputy decides how the time is to be accounted for and paid. If a firefighter needs to leave early or to come in late the Platoon Chief will send a memo to the Deputy Chief advising him. However, the Board saw a memo from 1999 from a Platoon Chief to the Deputy advising him that a firefighter had missed three hours on a shift as he was at the hospital emergency department. The Platoon Chief advised the Deputy that he told the firefighter he could have one hour emergency leave but the other two hours would be charged to his sick time.

54. The Board heard little about overtime. The collective agreement provides for overtime to be paid at time and one half. The Chief has the discretion to grant time in lieu of overtime. Employees who are called back work overtime as do employees who have been subpoenaed. Employees may also work overtime in an emergency that extends beyond the end of a shift. The Platoon Chief would submit the information to the Deputy. PC Clawsie denied that he “approved” such overtime but it did not sound like anyone else did either since it was performed out of necessity. The new job description provides that the Platoon Chief approves overtime and all other time off.

55. The Platoon Chief does not schedule annual vacation but does schedule any extra weeks.

56. Time off for union leave is approved by the Chief or the Deputy.

Responsibility at a Fire Scene

57. If a Platoon Chief is dispatched to a fire he will decide if he will take over command from the first arriving Captain. PC Clawsie testified that in the last few years he would generally take command if there were two stations involved at a fire scene. Statistics show that he would be in command at a fire scene between approximately 100 and 150 times per year. Even when he does not take command he is responsible and his gear makes him recognizable as the Platoon Chief to other agencies. If he does take command he retains it. Command may require him to interact with other people or agencies for information, crowd control or other reasons. He will determine whether more or fewer vehicles and firefighters are required at the scene. The Platoon Chief decides whether to leave people in the building at a fire scene after obtaining information from the people at the scene. The Platoon Chief has the authority to switch to another radio frequency if he needs to speak privately

58. If the Chief or the Deputy attend at the scene they will not take over responsibility. They will be available to the Platoon Chief as a resource and to deal with the press or other agencies. If the fire requires that all three stations be actively engaged, the Platoon Chief will ask the communications officer to contact the Chief or the Deputy to issue a call-back. A Platoon Chief, a Captain and four other firefighters will be called back to respond to any other fires, to cover the city’s obligations with respect to road rescues and to provide respite for the firefighters at the scene if necessary. The Board heard evidence of one occasion upon which the Chief and Deputy could not be reached and the Platoon Chief directed the call back himself. If the Chief or Deputy are not present, the Platoon Chief decides whether it is necessary to involve other agencies, i.e. police, public health, Ministry of Environment. The Chief estimated that in five years he had received a call requesting a call back perhaps 30 times. The Platoon Chief coordinates the activity of the crew fighting the fire but also the incoming crew On one occasion in 1999 PC Clawsie called back eight firefighters although the policy only authorized six. He felt he needed the extra personnel for relief at the scene. He received no discipline, censure or comment of any kind about that decision.

59. Personnel at the scene communicate according to unity of command. Each person reports to only one person. Firefighters report to Captains who work alongside them. The Captain reports to the Platoon Chief who remains stationed outside (or in the firefighters’ room) where he can coordinate the firefighting. Communication is in reverse order i.e. the Platoon Chief communicates directions to the Captain who communicates directions to the firefighters. The Platoon Chief will issue instructions to the Captain as to what is to be done but not how to do it, i.e. he may tell the captain to ventilate but not how to accomplish that.

60. Any time a vehicle responds to a call, the Platoon Chief must fill out a detailed report which he forwards to the Deputy. The platoon meets as soon as possible after an incident to debrief. It appeared that the debriefing is led by the Platoon Chief.

61. There is a policy and procedure which dictates the minimum vehicle and personnel response to various kinds of emergency incident calls. The dispatcher issues the calls. The Platoon Chief is responsible for ensuring the minimums are met.

Hiring

62. The Platoon Chiefs have not been involved in hiring except on one occasion. In July 1998, they were asked to sit on an interview panel. The candidate had already passed an aptitude test, a physical fitness test and had had two prior interviews. Three Platoon Chiefs and the Training Officer sat on the interview panel. The Chief and someone from the City’s human resources department were also present. The Platoon Chiefs were each assigned a few questions to ask by the City’s human resource professional. After the candidate had left they were asked what they thought of him. PC Clawsie said that he thought he seemed like a likeable person. Chief Bennett testified that the consensus of the group was that the candidate would fit in. The Platoon Chiefs were not asked if they thought he should be hired. The candidate ultimately was hired. Chief Bennett testified that the decision to hire him was based on the interview.

63. Chief Bennett testified that he asked the Platoon Chiefs to participate in the interview on that occasion because one of them had asked that they be involved in hiring. Chief Bennett testified that on September 22, 1998 he was informed by the Platoon Chiefs at an officers’ meeting that the Association had advised them not to participate in the hiring process. He sent a memorandum to that effect to the City’s Director of Human Resources. The Chief testified that he therefore decided to “relax” the requirement on Platoon Chiefs to participate in hiring interviews. The notes of the officers’ meeting for September 22, 1998 do not mention such a discussion. PC Clawsie could not specifically recall the discussion but seemed to be aware of it.

64. The new job description provides that Platoon Chiefs will be members of the team responsible for the recruitment of firefighters. It states that they will be required to participate in screening applications, reviewing test results, interviewing and selecting new recruits. There is no evidence however of any involvement in hiring other than the incident described above prior to the application being filed. The Chief testified that it was his intention that they would be involved in the future.

Conflict of Interest

65. The City asserts that the position of Platoon Chiefs in the bargaining unit creates a conflict of interest. It provided a number of examples. As noted above, the City has included hiring in the new job description. In March 1999 after the new job descriptions had been finalized, the Association filed grievances with respect to the provisions requiring the Platoon Chiefs to be involved in recruitment; to be involved in discipline; to conduct performance reviews and make recommendations on reclassification and to make recommendations on staffing levels and to assist in the preparation of the budget. The Association took the position that those duties are not the responsibility of its members. The Association also filed grievances with respect to some of the new house rules. Some of the grievances have been adjourned, none of them have been decided. As a result of the grievances, the Platoon Chiefs are in a conflict between their obligations to comply with the duties assigned by the City and the Association’s position that they should not be performing those duties. However it is the same kind of conflict any employee faces if assigned a task which he does not consider to be part of his job and must “obey now and grieve later”. Nevertheless, it is a problem for the City if it may not assign duties to its staff without facing a grievance.

66. PC Clawsie testified that he was aware that it was the Association’s position that the Platoon Chiefs should not be involved in hiring and that it was not in favour of the Platoon Chiefs being at the hiring interview. He said, however, that since hiring was a management function he assumed that was why they were never asked if the candidate should be hired. PC Clawsie testified that he never had a problem between the “push and pull” of his position as Platoon Chief and his membership in the Association because there was a clear distinction as to what management could do and what he could do.

67. The new job description provides that the Platoon Chiefs will participate in the grievance process as required. However, Article 13.1 to Article 13.3 of the relevant collective agreement provides as follows:

68. GRIEVANCE PROCEDURE

13.1 A grievance shall be defined as any difference arising from the interpretation, application, administration, or alleged violation of any provisions of this agreement or other terms and conditions of employment.

13.2 In the event that an employee has cause for complaint concerning any provision contained in this agreement, or other terms or conditions of employment, he may present the matter to his shift platoon chief for settlement. Such complaint shall not prejudice any formal grievance which may ensue from the complaint.

13.3 STEP 1: Failing settlement of any complaint, the employee may, with appropriate Association representation, present a grievance in writing within five (5) days of occurrence of the complaint to the Fire Chief who shall render his decision in writing, together with the reasons therefore, within five (5) working days.

68. In the fall of 1998, the Platoon Chiefs were asked to a meeting with the Chief and Deputy. They were given draft copies of new job descriptions for all positions in the department and were asked not to copy or distribute them. They were to discuss them with the Captains and firefighters and to provide input to the Chief and Deputy. The Association subsequently contacted the Chief and said it had received a copy of the draft job descriptions and had concerns about some of the contents. The Chief said he was told that PC Clawsie had given the document to the Association. PC Clawsie denied it at the hearing. The City met with the Association thereafter with respect to the job descriptions and in March, 1999 they were finalized. The City claimed this was an example of the conflict of interest inherent in the Platoon Chiefs’ position.

69. Prior to January, 1999, the Platoon Chiefs were directed by the Chief that they could book a fifth man off on lieu time. This was a deviation from the policy and procedure. The Association advised the Chief in January 1999 that the Association had passed a motion that “in general alleviates the responsibility of the Platoon Chiefs booking time owing in the fifth slot in the lieu day book when there is already four people booked off.” The Association expressed the concern that staffing levels were too low and it did not want to contribute to the problem of understaffing. The Chief sent a memo to the Platoon Chiefs advising them that any motions by the Association may not interfere with their duties. In August, 1999 PC Clawsie advised a firefighter that he would not book him off as he was the fifth man but that the firefighter could ask the Chief to authorize it. The Chief said that PC Clawsie could authorize it but he refused to do so until the policy and procedure was changed. Chief Bennett testified that PC Clawsie informed him that the Association had directed the Platoon Chiefs not to book off a fifth person. The Chief sent another memo to the Platoon Chiefs advising them that they do not take direction from the Association. PC Clawsie testified that he consulted a lawyer about his position and was advised he should comply with the policy and procedure. He said he was concerned about his responsibility in the event of an incident if he failed to follow the policy and procedure. He denied that the Association’s position had influenced him in taking the position he took. However, the Board notes that his position was identical to the Association’s.

70. PC Clawsie testified that the constitution of the Association contains a provision against knowingly wronging a brother. He said it was not something he cared about in performing his duties. He said he did not know what the consequences might be for wronging a brother but that in all his years in the department he had never seen anyone punished for anything like that.

71. PC Clawsie testified that he was never approached by an Association representative to speak about an action he had taken with a member.

Micromanagement of the Workforce

72. The Association introduced the index to the policies and procedures manual. It includes 209 policies and standard operating procedures. Not all of them apply to personnel under the command of Platoon Chiefs. Many of the policies and procedures introduced require referral to the Chief or the Deputy Chief in order to take action or to take action different from that outlined in the procedure. There are also general rules and house rules. The officers are responsible for enforcing the rules and must report any transgression to the Chief or the Deputy.

73. The Association also introduced a number of policies and memos to demonstrate the kinds of things that are covered, for example; the colour of sunglasses and when they may be worn; a memo directing that only the top button on a shirt may be open; a memo requiring the Chief or Deputy to be informed if a firefighter is issued equipment such as gloves or helmet parts to include the information in their files and to ensure that an adequate stock is available. It also introduced an exchange of documents in which the Deputy Chief complained that the windows had been removed from a pumper truck, something that was common in the summer, without first submitting a request to him.

Training

74. The Platoon Chief is responsible for ensuring that the firefighters on his shift receive the training that they need. However, the organization of the training to be held in the platoon is delegated to the platoon training officer usually the Acting Platoon Chief (the most senior Captain). The training is actually carried out by the Captains or firefighters who are specialists in the procedure. PC Clawsie testified that until the last year he attended all training sessions (not necessarily for the duration) but that in the last year he had attended about half. More formal departmental training is organized by the department’s training officer. The Platoon Chief is responsible for ensuring it takes place. Firefighters also periodically attend fire college but that is scheduled by the Training Officer, the Deputy and the Chief. The Platoon Chief may need to transfer firefighters from one station to another to accommodate training.

75. PC Clawsie testified that it was his regular practice to unexpectedly ask his firefighters to perform certain procedures to ensure they were up to date or to see if they needed retraining.

Other Duties and Miscellaneous Facts

76. Platoon Chiefs wear white helmets at a fire scene so that they are readily identifiable. The Chief, Deputy, Chief Fire Prevention Officer and Training Officer also have white helmets. The lettering on the helmets specifies their rank. Captains have different coloured helmets, as do firefighters and communications officers. Platoon Chiefs have dedicated vehicles set up for command.

77. The Platoon Chiefs provide work orders to the Deputy if something needs to be repaired. The Platoon Chiefs rotate filling out a monthly report outlining things such as training, personnel issues and needs and deficiencies with the building and equipment. PC Clawsie testified that he often did not fill this report out because he advised the Deputy immediately if there were problems. One of the items under “personnel” is “The present status of any personnel requiring assistance or consultation to meet the performance standard for this department.” However none of the status reports submitted had comments of that nature except one by PC Clawsie in which he noted that the new shift was progressing well but that there were “still some hard nuts to crack”.

78. The Platoon Chiefs have had no responsibility for budget. Chief Bennett testified that he expected that would change with the new job description as they would be providing information so that he could budget. The Platoon Chiefs have no signing authority and no authority to commit funds. Therefore, for example, if more first aid supplies are needed a request must go the Deputy Chief.

79. Platoon Chiefs must fill out WCB accident and injury reports if an injury occurs at the main station. The Captains fill them out if an injury occurs at the substations or on the training ground. The Platoon Chiefs are responsible for ensuring that they are filled out and forwarded to the Deputy.

80. Platoon Chiefs attend senior officers meetings which are held twice per year. The Chief testified that at these meetings they discuss topics such as the budget (its status), the purchase of equipment, staffing, station status, current projects and policies.

81. Platoon Chiefs do not have access to employee files.

82. PC Clawsie received extremely high job evaluations from the Chief. He received high ratings for leadership. He saw it as his role to instil good work habits in “his men”. It was his view that if they had good work habits away from the fire ground they would have good work habits at the fire ground.

83. In the two or three years before the application, the complement of firefighters was reduced by 12 by attrition. The Platoon Chiefs were not involved in that decision. When P.C. Clawsie complained about the reduction in staff to the Chief he was told he had to play with the cards he was dealt.

84. Certain facts were stipulated by the Association and not disputed by the City. There has been no decision anywhere in Canada in any forum including a court, a labour board or a board of arbitration which has removed Platoon Chiefs, or their equivalent, from a bargaining unit on the basis that they exercise managerial functions. There are situations in which people at the Platoon Chief level have been excluded by agreement. Platoon Chiefs do not necessarily perform the same duties in every department.

Submissions of the Parties

85. Both parties presented thorough and helpful oral and written arguments. The following are synopses of those arguments.

86. The City argued that the evidence demonstrated that Platoon Chiefs should be excluded from the bargaining unit on the grounds that they exercise managerial functions.

87. The City submits that this situation is similar to determination of who should be excluded from a bargaining unit in a certification application under the Labour Relations Act, 1995, rather than an application under section 114 of that Act because, although Platoon Chiefs have historically been included in the bargaining unit, that has been a statutory requirement. It does not reflect a choice by the parties.

88. The City structured its arguments on eight points; that the duties of the Platoon Chiefs are not routine; that management responsibility is not incidental to the job; that Platoon Chiefs are thinkers more than doers; that there are conflicts between the duties of Platoon Chiefs and their inclusion in the bargaining unit; that the breadth of their duties must lead to the conclusion that they are managers; that the ratio of supervisors to subordinates is consistent with being managers; that they are the sole supervisory authority for more than 70% of the time work occurs in the department; and that they do impose and make effective recommendations with respect to discipline.

89. The City argues that Platoon Chiefs are the operational leaders of the Brantford Fire Department and pointed to PC Clawsie’s retirement letter in which he thanked the Chief and Deputy for their trust and cooperation. The City denies the implication that the department is not run by the Platoon Chiefs but is rather run by “paper” through the policies, procedures and memos that are issued.

90. The City asserts that the Platoon Chiefs are more than the “eyes and ears” of management, they are its hands. The City relies heavily upon the fact that Platoon Chiefs are the highest level of management in the department 70% of the time work is being performed. When the Chief and Deputy are not present they are the face of authority. Furthermore, they are not the lowest level of management. They also use the Captains to run the department.

91. The City argues that the inherent conflict in the Platoon Chiefs’ situation causes them to not perform as well as they could if they were excluded from the bargaining unit. It postulates that the lack of disciplinary action in the department is not due to the good behaviour of the firefighters but to the Platoon Chiefs’ unwillingness to discipline them or bring their failings to the attention of the Chief and the Deputy Chief. The City argues that, for example, the Platoon Chiefs must enforce the house rules which include rules against pilfering, lateness etc. It submits that the enforcement of such rules puts them in obvious conflict with their subordinates. The City argues that it is essential that Chief and Deputy be able to trust the Platoon Chiefs as they are in charge of the fire suppression division 70% of the time and are in charge of their shift all of the time. The City is entitled to expect complete loyalty from its managers.

92. The City applies the analysis found in McIntyre Porcupine Mines Limited, [1975] OLRB Rep. April 261 to the facts of this case and argues that, on that analysis, the Platoon Chiefs should be excluded from the bargaining unit. The essence of the job is managerial i.e. managerial functions are not incidental. Their duties are not “direct execution or routine implementation of pre-determined direction”. The City also refers the Board to the analysis in The Corporation of the City of Thunder Bay, [1981] OLRB Rep. Aug.1121.

93. The City refers to the facts and documents which it claims support its position that the Platoon Chiefs exercise managerial functions. However, it focuses on the “sole supervisor” factor, i.e. that the Platoon Chief is the most senior supervisor on shift, as well as on the ratio of Platoon Chiefs to firefighters (1:22) versus the ratio of Chief and Deputy to firefighters (2:96).

94. The City also submits that the analysis the Board must undertake in this case is similar to the one it undertook in Ford Motor Company of Canada, [1993] OLRB Rep. Jan. 1. In that decision the Board found that supervisors exercised managerial functions and were excluded from the bargaining unit. The City provides a detailed comparison of the facts and analysis in that case to the facts and analysis in this one.

95. The City also refers the Board to the following decisions: Chrysler Canada Limited, [1976] OLRB Rep. Aug. 396; Toronto Transit Commission, [1994] OLRB Rep. Mar. 319; Transit Windsor, [1991] OLRB Rep. April 585; Ottawa Public Library Board, [1995] OLRD No. 1001; London Free Press Printing Company Ltd., [1997] OLRD No. 425.

96. The Association provided the Board with legislation pertaining to firefighters across the country. It argues that the same test with respect to managerial exclusion is found throughout, yet Platoon Chiefs have not been excluded from firefighter bargaining units except by agreement. It notes that there is no presumption in the FPPA that anyone currently in a bargaining unit should be excluded. The structure of the Act does not invite or encourage the Board to undo the historical bargaining relationships. It asserts that the legislation is more akin to section 114(2) of the Labour Relations Act, 1995 which governs a situation in which a party seeks to exclude someone from a bargaining unit who has previously been included. The Association also argues that the legislature has decided the appropriate ratio of management to employees by dictating the number of automatic exclusions to which a fire department is entitled according to the size of the department. It claims that if the City wants to exclude individuals who have been in the bargaining unit under the managerial exclusion there is a heavy onus on it to show they are doing something different, that they are now performing managerial duties which take them outside the bargaining unit. It argues that the FPPA contemplates the reorganization and assignment of managerial duties to employees under section 54. It does not contemplate the disruption of long standing relationships by turning people who are in positions in which the same duties have been performed for 50 years, into managers. It asserts that the Board will need a very fundamental reason to find that a department which has been run by two people and has now been reduced by 12 requires four more people to manage it.

97. The Association disputes the claim that the Platoon Chief to firefighter ration is 1:22 as it is rare for all 22 firefighters to be present on a shift. It also points out that some of the firefighters are at substations which the Platoon Chief may only visit once per tour. It also notes that either the Chief or the Deputy is available by telephone 24 hours per day. It suggests that because of the command structure, the Platoon Chief could be said to be directing only the four Captains.

98. The Association argues that the Platoon Chief’s role in assigning firefighters is a coordinating, not a management, function. It claims that the fundamental function of the firefighters on the shift, including the Platoon Chief, is fighting fires. At a fire scene everyone knows what he is supposed to be doing. It is a team effort, the Platoon Chief is the leader of the team. It argues that the department is highly regulated with little room for discretion. It claims that the more regulated the work the less management there is except at the highest level.

99. The Association denies that the lack of reports on infractions of the rules indicates that the Platoon Chiefs are not reporting them. It argues that, if anything, it shows that the current situation is working. It says that the evidence to the contrary is that the Platoon Chiefs think they have to report everything. The Association argues that a collective agreement has been in place for 35 years with very little structural change. The agreement contemplates a role for Platoon Chiefs.

100. The Association argues that the previous Board decisions most applicable to these facts are not those submitted by the City but those dealing with professional employees such as head nurses, university department chairs and principals. The Association also claims however that, even on the cases presented by the City, the Platoon Chiefs would be excluded as they do not exercise independent decision making functions or make effective recommendations with an economic impact. The Board was referred to the following decisions: Ottawa General Hospital, [1984] OLRB Rep. Sept. 1199; Dominion Stores Limited, [OLRB] Rep. Dec. 2006; Ottawa & District Association for the Mentally Retarded, [1988] OLRD No. 748; Associated Medical Services Incorporated (Toronto), [1960] OLRB Rep. Oct. 249; Ontario Secondary School Teachers’ Federation, [1980] OLRB Rep. 348; The Board of Education for the City of York, [1985] OLRB Rep. May 767; Ajax and Pickering General Hospital, [1970] OLRB Rep. Feb. 1283; Oakwood Park Lodge, [1982] OLRB Rep. Jan. 84; Oakwood Park Lodge (1982) CLLC 12,063; Peterborough Civic Hospital, [1973] OLRB Rep. March 154; Ottawa General Hospital, [1974] OLRB Rep. Oct. 714; Laurentian University of Sudbury, [1979] OLRB Rep. July 672; Hydro Electric Commission of The Borough of Etobicoke, [1981] OLRB Rep. Jan. 38; Reynolds-Lemmerz Industries, [1995] OLRB Rep. Jan. 59; J.M. Schneider Inc., [1987] OLRB Rep. Mar. 381; Royal Ontario Museum, [1985] OLRB Rep. Feb. 325; Riverview Health Association, [1966] OLRB Rep. Jan. 743; The Corporation of the City of Barrie, [1983] OLRB Rep. Aug. 1239 and Calgary (City) (Re) [2000] Alta. L.R.B.R. 550 (Alberta Labour Relations Board).

101. The Association reviewed the evidence and denies the conclusions that the City said should be drawn from it. It argues that the Platoon Chiefs do not perform functions considered to be managerial. It denies that the Platoon Chiefs have effective control and authority over the firefighters as they do not have the power to discharge, discipline, transfer, promote or demote. Furthermore, they do not have the power of effective recommendation relating to conditions of employment. They do not make decisions which affect the economic lives of their fellow employees thereby raising a conflict of interest with them.

102. The Association argues that the evidence demonstrates that the Platoon Chiefs are not performing the new job duties found in the March 1999 job description, but that even if they were, those duties would not be sufficient to cause the kind of conflict for which they should be removed from the bargaining unit. The duties they have performed for the past 35 years have not caused conflict. The Platoon Chiefs play an important role in the department but it is not a managerial role.

103. The City replies that there is nothing in the FPPA to suggest that its managerial exclusion test should be more onerous than the test under the Labour Relations Act, 1995. It denies that it should have to prove why more excluded positions are necessary if only two have been excluded historically, since that limit was imposed by statute and was not a choice of the parties. The City also claims that the Board can assume that conflicts exist in certain situations without hard evidence. It also replies that it is not appropriate to rely upon the Board’s decisions with respect to professionals as the Platoon Chiefs are not professionals in the context of the Labour Relations Act, 1995 jurisprudence. Specifically, there is no licensing or governing body enforcing professional standards to which they must adhere. It asserts that if an employer cannot be confident that its first level of management will manage the way it wants, those positions should be excluded. The employer must be certain that those employees are acting solely in management’s interest. The City also suggested that if PC Clawsie had not been in the bargaining unit he would not have had to use a “soft” management style and his management style could have been more consistent with that used in the rest of the City.

Decision

104. These are unusual facts because one would expect that individuals responsible for operating a shift of 22 employees, often in the absence of any management personnel, would have significant authority to affect the working lives of those employees. However, the Platoon Chiefs do not have that kind of authority. The Platoon Chiefs do supervise, lead, coach and motivate. PC Clawsie clearly saw the firefighters on his shift as “his men”. The Platoon Chiefs are responsible for ensuring that the work of their shift gets done, that fires are fought, that training is accomplished and that the station is maintained. The Board finds that they are responsible for the 22 men on their shift i.e. the ratio is 1:22. However, the Platoon Chiefs exercise almost no authority which impacts the economic working lives of the people they supervise. Perhaps the parties have fashioned a role for Platoon Chiefs which can accomplish the goals of managing the shift with little traditional “managerial” authority because they have been included in the bargaining unit by statute. PC Clawsie referred to using a wet noodle instead of a stick to get the firefighters to perform to his expectations. The City has now conferred some of the traditional authority upon the Platoon Chiefs in the job description. But as of the date of the application almost none of it had been exercised. It is possible that the reason some of the duties are not being performed is that the Platoon Chiefs continue to be in the bargaining unit. The Association filed grievances because the duties were assigned to the Platoon Chiefs. The City held off requiring them to participate in hiring because the Association complained. However, the Board cannot know if the authority will be exercised or in what manner. The Board cannot know if the Chief or the Deputy will give effect to any disciplinary recommendations they receive or whether the Platoon Chiefs will actually make such recommendations.

105. On the other hand, the Platoon Chiefs are the sole supervisors of their shifts and of the department much of the time. Even when the Chief and Deputy Chief are present they do not appear to exercise much day to day supervision. While the Platoon Chiefs have never imposed any real discipline or even really recommended any, they are usually the ones who can identify when a transgression has occurred requiring discipline.

106. The Board agrees that it should approach the analysis of these facts in the same way it approaches a bargaining unit description matter in a certification application under the Labour Relations Act, 1995 i.e. there is no presumption arising from any prior agreement to include Platoon Chiefs in the bargaining unit as they were included by statute. The FPPA may contemplate situations in which individuals in the bargaining unit are actually managers under the Board’s definitions but could not be excluded because of the statutory definition. On the other hand, if their inclusion does create a conflict one would expect there to be evidence of that. The City claims that there were such examples but in reality there were very few. Furthermore, all three witnesses had been involved in the Association in an executive capacity and would have been well placed to provide examples of such conflicts with Platoon Chiefs if they existed. What conflicts there were appeared to arise from the Association’s desire to keep the Platoon Chiefs in the bargaining unit, not from the exercise at any managerial duties.

107. Although this is the first time the Board has considered the question of whether a Platoon Chief (or anyone else in the fire service) is exercising managerial functions, the Board has had to consider the position of supervisors with little independent decision making authority in a number of other contexts. Over 20 years ago, in McIntyre Porcupine Mines Limited, supra, the Board had to decide whether shift bosses and foremen exercised managerial functions. In making that decision the Board described the conundrum as follows at paragraph 40:

108. One of the most difficult situations confronting the Board in this penumbral area is applying its “effective control” test to persons who spend most of their working hours supervising the work of others and who report the progress of the work with or without making recommendations. Are these people mere conduits “carrying orders or instructions from management to the employees” or do they have effective control over the employment relationship of the people they supervise? Do these people exercise independent discretion or are they merely gatherers and collators of information which will be acted upon by a person who is truly a member of management? The incidence of this kind of problem has been increasing in recent years, again, because of the tremendous specialization in decision-making associated with corporate or organizational growth. Where great numbers of people work at a common enterprise they need to have their efforts co-ordinated and therefore many persons may be principally engaged in co-ordinating activities. Co-ordination may also become very routinized because of the enactment of rules, and policies to channel working energies with the maximum certainty and efficiency. More particularly in this latter regard, in many enterprises it has become recognized that efficiency and employee morale go hand in hand and require a consistent and deliberate application of the rules. Accordingly, in these enterprises, it has been thought unwise to give supervisors so much independent discretion that they are enabled to act precipitously or inconsistently which, in turn, has resulted in a spectrum of functional alternatives to “the foreman as king-pin”. For example, the supervisor may consult with someone else before making the decision – thus giving him the benefit of another viewpoint and “cooling” the context in which to make the decision. Or the supervisor may consult with someone else and they will make the decision in concert. Another alternative might have the supervisor reporting only the facts to someone else with this other person making the decision and taking exclusive responsibility for it. And a final variant might have the supervisor’s superior making the decision on the recommendation of and after consultation with the supervisor. As a general matter, but also of note, is the fact that the independence of decision-making associated with all of these possibilities may be further muted when the employees being supervised and their employer are subject to the terms of a collective agreement. Collective agreements have become complex and sophisticated regulatory documents. These agreements may severely limit the discretion of the employer and his agents to affect materially the terms and conditions of a worker’s employment through the provision of seniority systems, minutely defined job structures and grievance procedures. Overtime, promotions, transfers, demotions and wage increases may come to have an almost automatic quality to them. Supervisors must, of course, work within such provisions.

109. The Board subsequently answered the question as to where the line was to be drawn, drawing it at the point where someone who spends most of his or her time supervising also makes effective recommendations that materially affect the conditions of employment of those supervised. It stated as follows at paragraph 44:

110. And over a series of cases dealing with frontline supervisors this change in emphasis has evolved into the concept of “effective recommendation” – a change which we believe is in response to the metamorphosis that industrial relations has undergone. This concept has come to mean that if a person spends most of his time supervising the work of others and makes effective recommendations that materially affect the conditions of employment of those supervised, the Board may conclude that such persons are exercising managerial functions. In this sense an effective recommendation is a serious recommendation that the evidence demonstrates is usually acted upon, and therefore a recommendation that materially affects the economic lives of employees.

111. In the McIntyre Porcupine Mine, supra decision the shift bosses and foremen resembled the Platoon Chiefs in some ways. They each supervised 20 to 22 people and were the sole management under ground (as the Platoon Chiefs are in the evenings, overnight and on weekends). However the shift bosses and foremen did make effective recommendations up to and including discharge, they were consulted on other penalties, some of them had suspended employees. They were therefore found to be exercising managerial functions. The Platoon Chiefs, like the foremen and shift bosses, do spend most, in fact all, of their time involved in supervisory tasks and do not perform the same work as the other bargaining unit members. However, they do not have the power of effective recommendation with respect to discipline, promotion, or hiring. Later in the McIntyre Porcupine Mine, supra decision the Board distinguished an earlier decision as follows:

112. … The principle issue is whether the person in question exercises managerial functions and the fact that the person performs supervisory work exclusively does not in itself determine the application of section 1(3)(b) as the “white collar” cases demonstrate. The Board must go on to consider whether the supervisory duties in combination with other responsibilities permit a person to affect materially the economic lives of employees – a fact that would place the person in a fundamental conflict of interest. …

113. The new job description suggests that the City is attempting to impose the power of effective recommendation upon the Platoon Chiefs. However, whether recommendations will be sought, whether people will actually recommend, and most importantly, whether such recommendations will be effective, has to be demonstrated through examples and as of the date of the application there were no such examples. The Board stated in The Corporation of Thunder Bay, supra, as follows:

(5) The acceptance of the “effective recommendation test” mentioned above, means that it is not necessary to show that the disputed individual performs his role independently of higher levels of management. But it is necessary to show that his recommendations are really effective, so that, in practice, and to a substantial degree, he becomes the effective decision maker in respect of matters impacting upon his fellow employees From an evidentiary stand-point, it will be useful and often necessary to provide concrete examples of this kind of decision, and it will also frequently be necessary to hear from the person who actually made the decisions in order to show that the recommendations of the disputed individual were indeed decisive. In too many cases, in recent years, this evidence has either not been available at all, or when examined closely, amounts to no more than a “participatory decision-making style”. Whatever value the latter may have in improving employee performance or ensuring adherence to corporate goals, it does not necessarily mean that managerial authority has percolated downwards.

111. In Chrysler Canada Limited, supra, a decision also relied upon by the City, the Board again had to decide whether foremen who spent all their time supervising were also exercising managerial functions. The Board decided they were, but again those foremen had significantly more authority to impact upon the economic well being of the bargaining unit members than the Platoon Chiefs do. The foremen were responsible for the first three levels of the disciplinary procedure for certain infractions up to written warnings. They participated in the decision making with respect to suspensions and made recommendations which were sometimes followed. They made effective recommendations with respect to the retention of probationary employees. They were the first step of the grievance procedure and could settle simple monetary claims. They could grant leaves of absences up to five days.

112. The City proposes that the Board’s decision in Ford Motor Company of Canada Limited, supra, is most on point with the facts of this case. In that decision the Board found that supervisors exercised managerial functions and were not employees under the Labour Relations Act, 1995. Like the supervisors in Ford Motor Company, supra, the Platoon Chiefs spend their time supervising and can be said to be the “eyes and ears” of management with respect to the firefighters. For example, if the Platoon Chief does not tell the Deputy that a firefighter is late he will not know. However, the supervisors in the Ford Motor Company of Canada, supra had more managerial functions than the Platoon Chiefs. The supervisors in that case had been excluded from the collective agreement with the workforce and an application had been filed for a separate bargaining unit. The supervisors were part of the grievance process and had to issue decisions on grievances in writing. Platoon Chiefs receive complaints but that is prior to the grievance procedure being initiated. If the supervisor in the Ford Motor Company, case was involved in an interview or investigation that might give rise to discipline, the worker was entitled to have a union representative present. Platoon Chiefs have only been present in two such interviews, both after March 1999. They have never been involved in such an investigation. If the supervisors were not excluded in the Ford Motor Company, case there would have been 12 managers for a workforce of 700, a ratio of 60 to 1, with the supervisors excluded the ratio was 14 to 1. Like the Platoon Chiefs there were substantial periods of time in which there was no other management in the plant and they were in charge. Like the Platoon Chiefs they were responsible for the coordination of work. Also like the Platoon Chiefs the supervisors performed evaluations on new employees. They performed similar functions to Platoon Chiefs with respect to shift changes and time off. They could grant up to one day off. However, the supervisors had to authorize days off prior to a holiday and had to grant passes for employees to leave the plant. Employees leaving without passes could be disciplined and supervisors sometimes refused to grant them. The supervisors had a degree of independent discretion to grant overtime to meet production needs. The supervisors’ selection of employees for overtime was the frequent subject of grievances. Supervisors would be involved in investigating and recommending resolutions of the grievances and would testify on the company’s behalf if they were not resolved. Like the Platoon Chiefs, the supervisors were constantly involved in control of staffing and absenteeism. But unlike the fire department, this function generated controversy and produced demands for overtime authorization, distribution and pay claims. Like the Platoon Chiefs, the supervisors were required to enforce plant rules and production requirements. They were required to “write-up” infractions. The “write-ups” were written disciplinary notations issued to employees on a form called “Foreman’s Record of Disciplinary Action”. The write-up could be, and often was, the subject of a grievance. However, the “write-ups” were routinely reviewed by the labour relations personnel who had the authority to revise or disregard the supervisor’s decision. The supervisors also exercised the authority to send workers home from a shift for reasons such as insubordination or making threats. The supervisors might consult with human resources and higher levels of management but they still carried out the discipline to the level of a write-up. Supervisors were consulted about the facts of a case involving discipline and often about the remedy. At least one supervisor said his recommendations were followed. They also engaged in disciplinary interviews with the union steward present. Supervisors delivered the notice of warning or suspension. They had asked for discipline to be withdrawn and their recommendations had been acted upon. Unlike the situation before me, the Board in the Ford Motor Company case had numerous examples before it of the supervisor’s involvement in written warnings and suspensions of various lengths.

113. All of the positions at issue in the other decisions provided by the City exercised more managerial authority that the Platoon Chiefs as well. In particular, they all had a more significant role in the discipline process.

114. The analyses in the public sector cases provided by the Association are not completely applicable in that they contemplate a modern participatory management style based on professional expertise. The rank hierarchy of the fire department more closely resembles the old industrial model. On the other hand, the highly trained professional firefighters, like professional health care workers are not likely to require the degree of direct supervision and control that workers in an industrial factory might require. The Platoon Chiefs run the shift because they passed the exams and have the most seniority. However, a firefighter takes orders from a Platoon Chief because he has a higher rank not because he will discipline him. Management authority in the sense considered in the Board’s jurisprudence has not been dispersed, it has been kept in the hands of the Chief and Deputy Chief with only enough given to the Platoon Chiefs to run their shifts.

115. The Board was referred to one decision with respect to the issue of whether an officer in a firefighters’ bargaining unit exercises managerial functions. In Calgary (City)(Re), [2000] Alta. L.R.B.R. 550, [2000] A.L.R.B.D. No. 97 the Alberta Labour Relations Board had to decide whether four newly created Deputy Chief positions should be excluded from the bargaining unit on the grounds that they exercised managerial functions. The positions, although called Deputy Chiefs were primarily performing functions as the chief officer of the platoons. The Board found that they were not exercising managerial functions, that “matters affecting the terms and conditions of employment of the firefighters are still determined by the collective agreement, preset policies, the decision of the Chief, pre-established procedures or by other designated persons within the department.” All of that can also be said of the Brantford fire department.

116. The City urged the Board to find real and inherent conflicts resulting from the presence of the Platoon Chiefs in the bargaining unit. However, it is not possible to find either. The only incident approaching a conflict was PC Clawsie’s refusal to book a fifth man off on a lieu day which was probably at least partly influenced by the position of the Association. However, that was not a conflict vis-a-vis the firefighters. It was a refusal to perform a task, a refusal for which he could have been disciplined. It is normal for those in supervisory positions to have the obligation to report infractions to someone in management. Whatever conflict is inherent in that role is insufficient to deprive them of the right to collective bargaining because they are not part of the apparatus which decides whether and what discipline will be imposed.

117. Ultimately the Platoon Chiefs in the Brantford fire department have little authority to materially affect the working conditions of those they supervise. They do not hire or fire, do not impose discipline or effectively recommend discipline, they do performance evaluations but those evaluations have almost no effect on the working lives of the firefighters since promotion is almost completely determined by exams and seniority, they can only grant one hour off with pay, they rarely determine overtime opportunities.

118. On the other hand it is significant that they are the highest position in the workplace 70% of the time and are therefore in charge during those periods. However, there is no evidence that the absence of the Chief or the Deputy Chief has resulted in the Platoon Chiefs exercising any greater authority. The Chief and the Deputy have been very clear that they may be called at any hour of the day or night. If the Platoon Chiefs are not excluded from the bargaining unit there are still only two management excluded positions for approximately 90 employees. However, that situation need not be permanent as the City has not exercised its designations and has two other positions which it is asking the Board to exclude.

119. As the Board commented at the beginning of this section it is unusual for supervisors with as much responsibility for employees and the operation of their shift to have so few management functions with respect to labour relations. Perhaps this situation is a result of the historical bargaining unit or perhaps it is related to the “paramilitary” nature of the organization that the parties referred to at various times. In another setting with less disciplined workers than the firefighters it might not be possible for supervisors to accomplish what the Platoon Chiefs accomplish without the “stick” of management authority. But, whatever the cause, the reality is that the Platoon Chiefs supervise their shift with little authority which could put them in conflict with the firefighters. The FPPA provides that they are not firefighters if they actually exercise managerial functions not if such functions would be consistent with their other responsibilities. The Platoon Chiefs simply do not exercise managerial functions. They are therefore firefighters and part of the bargaining unit defined in the FPPA.

“Laura Trachuk”

for the Board