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

APPEARANCES: R. Ross Dunsmore, Samara B. Kaplan, Ken Knoflook for the applicant; Howard Goldblatt, Larry Staples, Henry Watson, Jim Simmons and Bruce Carpenter for the responding party.

BEFORE: Laura Trachuk, Vice-Chair.

DECISION OF THE BOARD; June 27, 2001

1. This is a further episode in the ongoing exploration of the unusual provisions of the Fire Protection and Prevention Act (FPPA). The issue this time is whether the Board can and should determine the firefighter status of individuals who have been designated under section 54(4) of the FPPA. In an earlier decision dated June 28, 2000, the Board rejected the argument presented by the responding party (referred to as the "Association") that under the FPPA the applicant (referred to as the "City") was required to exercise its power to designate individuals as managerial exclusions pursuant to section 54(4) prior to applying to the Board for a determination as to whether other individuals exercise managerial functions or are employed in a confidential capacity in matters relating to labour relations. (See City of Hamilton, [2000] OLRB Rep. May/June 437). Subsequently, the Board has also rejected an argument from the City that the Board should exercise its authority under the Public Sector Labour Relations Transition Act to amend the scope clause of the collective agreement to resolve an ongoing dispute between the parties arising from the language of that agreement. (See Board File No. 3115-00-PS decision dated April 12, 2001). The Board has also recently issued a decision in Board File No.

2458-99-M in which it found that the platoon chiefs employed by the City of Brantford fire department did not exercise managerial functions and therefore were firefighters under the FPPA. (See decision dated May 17, 2001). The parties have also received a decision from a board of arbitration allowing a grievance in which the Association claimed that the designated employees could not perform bargaining unit work. (See decision dated June 8, 2001 (Hunter).)

2. The City of Hamilton which filed this application has now been amalgamated into the new City of Hamilton. The parties have agreed that the new entity is a successor and that the application therefore applies to it. The new City of Hamilton has designated a number of individuals, including its four platoon chiefs, pursuant to subsection 54(4) of the FPPA. Nevertheless, it seeks to have the Board determine whether those individuals exercise managerial functions or are employed in a confidential capacity in matters relating to labour relations pursuant to section 54(2). The Association objects to the Board proceeding with a hearing in regard to those positions on the grounds that the matter is moot with respect to them.

3. The relevant provisions of the FPPA provide as follows:

4. (1) In this Part,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Submissions of the Parties

4. The Association argues that the City is not entitled to pursue this application with respect to individuals who have been designated out of the bargaining unit under subsection 54(4). It argues that the status of those individuals is now a matter for the collective agreement negotiations soon to commence between the parties.

5. The Association points out that subsections 54 (1) (2) and (3) are "subject to" subsection (4), the designation provision. The subsections provide that the Board has exclusive jurisdiction to determine whether the person is exercising managerial functions or employed in a confidential capacity in matters relating to labour relations, but that under subsection (3), the person is to remain in the bargaining unit until the Board so declares. It submits that the purpose of subsection (3) is to allow employees the benefits of collective bargaining until a conflict exists and the collective agreement ought not to apply. Those provisions contrast, the Association argues, with subsection (4) which allows the employer to designate employees at its sole discretion subject to subsections (5) and (6) and remove them from the bargaining unit. By designating the platoon chiefs, the City has taken them out of the bargaining unit and they are deemed to be exercising managerial functions.

6. The Association notes that the FPPA does not address what is to occur if the collective agreement contains "no contracting out" provisions as this one does. However, it asserts that that is not a problem that is within the Board's jurisdiction. The Board's jurisdiction is limited to determining whether the individuals are, in fact, performing managerial functions and are outside the bargaining unit. As the employer has already designated the individuals they are deemed conclusively to be exercising managerial functions. There is therefore no question for the Board to answer and it has no jurisdiction. Furthermore, if the Board were to proceed with respect to those positions, there is the possibility of a conflict between a decision of the Board that the platoon chiefs are not exercising managerial functions and the fact of their designation which deems that they are. The Association points to the definition of firefighter in subsections 41(1) and (2). Subsection 41(2) indicates that a person will be deemed not to be a firefighter if, in the opinion of the Board, he or she exercises managerial functions or is designated under subsection 54(4). Therefore a designated person is not a firefighter and there is no jurisdiction in the Board to rule upon his or her responsibilities.

7. The City responds that the two methods of excluding individuals from the bargaining unit contained in the FPPA have different results. If the City designates an individual, he or she has the right to refuse the designation. After the person leaves his or her position, the City has to go through the whole process again. However, if the Board makes the determination, the position will be excluded. It claims that the Board has the last word. The City points to the difference between subsection 54(2) and subsection 54(4). Subsection 54(4) says that a designated person is "conclusively deemed" to be exercising managerial functions etc. However, subsection 54(2) says the Board's decision is "final and conclusive for all purposes". The City claims therefore, that the Board could find that someone who had been designated was not exercising managerial functions even though by being designated they were deemed conclusively to be exercising such functions for the purpose of the Act. It says that the Board has "concurrent jurisdiction" but its decision is final.

8. The City argues as well that the fact that subsection (2) says "Subject to subsection (4) the Board on application of the employer, has exclusive jurisdiction..." indicates that it maintains jurisdiction even if there has been a designation. It submits that if the intention had been otherwise the provision would not contain the word "exclusive" i.e. it is the exclusivity that is lost by a designation under section 54(4) not the jurisdiction. That argument is bolstered, it claims, by subsection (3) which requires that a person remain in the bargaining unit until the Board makes a determination, unless he or she has been designated under subsection (4). The City submits that that provision must have some meaning and that meaning must be that the person may remain out of the bargaining unit if designated until the Board makes a determination.

9. The Board asked the City about the effect of a determination that the individuals in question were not performing managerial functions given that they had been designated. The City did not suggest that such a decision would nullify the designation or that it would be required to withdraw it or even that it would voluntarily do so. It suggested that the Association would have grounds to grieve the designation in those circumstances.

10. The City argues further that even if the Board has the discretion to decline jurisdiction it should not do so. It claims that by deciding the matter the Board could resolve an ongoing conflict between the parties. It points out that every time the City exercises its designation authority the Association files a grievance that the individual is performing the work of the bargaining unit contrary to the collective agreement. If the Board were to find that the work performed was managerial the Association could not grieve it.

11. The Board expressed concern that it was effectively being asked to conduct a status hearing with respect to a managerial employee. The City responded that, unlike the Labour Relations Act, 1995, in which employees are excluded from the bargaining unit until the Board decides otherwise, under the FPPA individuals remain in the bargaining unit until the Board makes a determination. Therefore, the City may need to designate them prior to applying to the Board.

12. The City argues as well that the Board should proceed to hear the application with respect to the excluded positions as it has the sole jurisdiction to make a determination with respect to managerial functions. If the parties are unsuccessful in dealing with their problem through negotiation and they end up before an interest arbitrator it will be important to have a decision from the Board. If there is no determination from this Board that employees are exercising managerial functions the interest board of arbitration will be able to say that there is not a complete problem that must be resolved.

13. The Association noted in reply that the City did not concede that it would withdraw the designations if the Board found that the employees did not exercise managerial functions. The Association asked how, therefore, could the Board's decision be final as claimed by the City?

The Decision of the Board

14. The Board has considered the submissions of the parties and finds that the application may not proceed with respect to persons who have been designated pursuant to subsection 54(4). The FPPA contemplates that an employer of firefighters choose one of two alternative routes to impose a managerial structure and thereby have individuals removed from the bargaining unit. The designation route is faster but requires the employee's consent. If the City does not want to use its designation authority, it may apply to the Board for a determination. However, it may not do both. That is why the FPPA provides that a person is deemed not to be a firefighter if the Board so determines or he or she is designated under section 54(4). To find otherwise would mean that the Board was embarking on a status hearing with respect to a managerial employee who had been deemed conclusively to be exercising managerial functions. The only answer the Board could give would be that the person is exercising managerial functions as long as he or she is designated. The use of the term "conclusively" in both subsections 54(2) and (4) also leads to the conclusion that one or the other method of exclusion must be used but not both. The person could not "be conclusively deemed to be exercising managerial functions or acting in a confidential capacity in matters relating to labour relations" if the Board could determine otherwise. Likewise, in subsection 54(2), the Board's decision could not be final and conclusive for all purposes if the employer could maintain the designation under subsection 54(4) and claim that the person was exercising managerial functions after the Board has found otherwise.

15. The Board finds that the phrase "subject to subsection (4)" means that the Board has the exclusive jurisdiction unless the City uses its designation authority. If the City does exercise that authority the Board loses its jurisdiction to determine the "question" of whether a person exercises managerial functions. Section 54(2) requires that there be a "question" as to whether a person exercises managerial functions etc. Where the employer makes a designation under subsection 54(4) in respect of that person, there can no longer be a "question" since the fact of the designation conclusively deems the person to be exercising those functions. Although subsection 54(3) is not a model of clarity, it does not mean that a person may be designated until the Board makes a determination. The subsection actually provides that a person will remain in the bargaining unit until one of two things happen; he or she is designated under subsection (4) or the Board makes a determination under subsection (2).

16. The Board acknowledges that the City's management feels thwarted in imposing the management structure it wants on the fire service due to the language in the collective agreement. The City believes that a determination by the Board would assist the parties in their negotiations over the matter and would also assist an interest arbitrator if that becomes necessary. However, the FPPA does not contemplate the Board making a determination under subsection 54(2) with respect to the duties and responsibilities of persons who are already conclusively deemed to be exercising managerial functions under subsection 54(4).

17. The hearing will therefore proceed only with respect to persons who have not been designated. The Board has permitted the City to amend its application to include facts which occurred between the date the application was filed and the last hearing date, June 15, 2001. The Board also adjourned some of the hearing dates at the City's request to allow it time to file the amendments. The City will file its amended particulars on or before August 9, 2001. The Association will have until August 31 to respond. The City will have until September 7 to reply.

18. The hearing will proceed on November 15, 26 and 29, 2001 and January 8, 10, 11, 15, 16, 17, 22 and 25, 2002 at 9:30 a.m. in the "Boardroom", 2nd Floor, 505 University Avenue, Toronto. The parties had originally agreed to a hearing date of November 13, 2001 as well but the panel is unavailable on that date.

19. The City will advise the Association in advance as to the order in which it is calling witnesses. The hearing date scheduled for July 11, 2001 will proceed, if necessary, with respect to the issue of whether the Chief and the Deputy have been designated. The hearing dates of July 12,16,17,19,23,25,26, and August 29, 2001 have been adjourned.

"Laura Trachuk"

for the Board