Hamilton Professional Fire Fighters Association v. The City of Hamilton, 2001 CanLII 5946

Hamilton Professional Fire Fighters Association v. The City of Hamilton

3115-00-PS Hamilton Professional Fire Fighters Association, Applicant v. The City of Hamilton, Responding Party.

BEFORE: Laura Trachuk, Vice-Chair.

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

DECISION OF THE BOARD; April 12, 2001

1. This is an application under section 22 of the Public Sector Labour Relations Transition Act, 1997 (the "PSLRTA"). The applicant (referred to as the "Association") asks the Board to determine the description of the bargaining unit.

2. The responding party, City of Hamilton, (referred to as the "City") is the result of the amalgamation of the Regional Municipality of Hamilton-Wentworth; the City of Hamilton; the Town of Dundas; the Town of Stoney Creek; the Town of Ancaster; the Town of Flamborough and the Township of Glanbrook. The changeover date was January 1, 2001. Four fire departments have been amalgamated. Prior to the changeover date, the Ancaster Firefighters Association; the Dundas Firefighters Association and the Stoney Creek Firefighters Association voted to merge with the applicant. There is no dispute that the Association will represent the firefighters in the bargaining unit once it is determined.

3. The Fire Protection and Prevention Act the ("FPPA") regulates collective bargaining in fire departments. It provides in section 45 that:

Section 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 firfighters under subsection 41(2).

4. "Firefighter" is defined in section 41 as follows:

Section 41

(1) In this Part,

"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).

5. There are over 300 volunteer firefighters now working in the City of Hamilton. It became apparent to the parties at some point prior to the consultation that there may be an issue as to whether the "volunteers" are truly volunteers or whether they might be part-time firefighters and therefore fall within the statutory bargaining unit. The City provided notice of this proceeding to each of the volunteers in case they were not aware of it through the Board's normal posting procedures. One individual wrote to the Board expressing interest in the matter but he did not attend the consultation although the Board is satisfied that he had notice of it.

6. At the consultation on March 27, 2001, the parties acknowledged that the statute provides that the bargaining unit includes all firefighters. However, as the issue had only recently arisen, neither party had sufficient information to take a position on whether those they have called "volunteers" are, or are not, firefighters under the FPPA. It was agreed, therefore, that the bargaining unit should reflect the statutory definition but that I would remain seized in case there is a dispute about whether the "volunteers" are firefighters once the parties have had an opportunity to look into the matter and to discuss it.

7. There was a further, and more complicated, dispute between the parties with respect to the bargaining unit definition. The City agrees with the Association that the bargaining unit should be defined as "All firefighters as defined by Part IX of the Fire Protection and Prevention Act employed by the City of Hamilton" but asks the Board to make the description subject to a clarity note as follows:

The duties of all those persons determined from time to time pursuant to the Fire Protection and Prevention Act not to be fire fighters shall be performed outside the bargaining unit subject to the provisions of section 54(1) of the Act.

8. Subsection 54(1) of the FPPA provides as follows:

9. (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.

10. The City says that the clarity note is necessary because of a dispute between the parties. The FPPA provides that an employer of firefighters may ask the Board to find that certain individuals are not firefighters and are therefore excluded from the bargaining unit because they exercise managerial functions or are employed in a confidential capacity in matters relating to labour relations. It also provides that an employer of firefighters may designate a certain number of individuals and, provided they agree, they are excluded from the bargaining unit. The legislation governing collective bargaining for firefighters prior to the FPPA provided that only two individuals, the chief and the deputy chief, were excluded from a firefighters' bargaining unit no matter the size of the department. The City now plans to have a management structure in the fire department which includes 21 individuals. It has designated four people as provided in the FPPA and it asks the Board, in a separate application, to find that the others are not firefighters as they exercise managerial functions. The Association has filed grievances with respect to the work being performed by the individuals who have been designated and are no longer in the bargaining unit. The Association claims that the City is violating its collective agreements. The Hamilton collective agreement provides:

Article 2.5 No person outside the Bargaining Unit herein described shall perform the work customarily and regularly performed by the employees of the Bargaining Unit except in the case of a natural or National Emergency.

The Stoney Creek agreement includes similar language.

10. The City argues that the Board should impose the clarity note in paragraph 7 as the PSLRTA subsection 22(1) requires the Board to determine a bargaining unit description which is "appropriate for the successor employer's operations". It stresses that this is a different consideration than the Board uses in certification proceedings under the Labour Relations Act, 1995. It claims that under section 22 of the PSLRTA the Board may determine the bargaining authority of the Association and may say that it only extends to the positions of firefighters. The Board may therefore prevent the Association from bargaining about the duties of excluded persons. It urges the Board to do this, as the Board has the responsibility to formulate the most effective bargaining unit. It submits that if the clarity note is not attached, the Association will continue to take the position that the work performed by designated individuals is still work of the bargaining unit and may only be performed by bargaining unit members. The City believes the Association will also take this position with respect to any positions found by the Board not to be firefighters, that it will say any duties not specifically managerial are bargaining unit work. The City says that the Association will seek to bargain about this work and that the City should not have to do so as it has removed the positions and the work they perform from the bargaining unit. The City does not want to leave the matter to interest arbitration and face the possibility, no matter how remote, that an interest, or rights, arbitrator may find that the work done by the excluded individuals is bargaining unit work. If it were found that the excluded positions could not perform that work it would subvert the effect of being able to utilize the processes under the FPPA to exclude people from the bargaining unit. That would adversely affect the City's operational interests. It urges the Board to take this opportunity to resolve the matter by imposing the clarity note. It claims that doing so would fulfil the purposes of the PSLRTA.

11. The Association argues that the City is asking the Board, not to determine the bargaining unit, but to determine the bargaining unit work. It doubts that the Board has the jurisdiction under the PSLRTA to do what the City is asking but argues that, in any case, it is inappropriate for it do so. It submits that if the Board imposed the clarity note it would be inserting itself directly into the collective bargaining between the parties. It acknowledges that it will seek to bargain about the duties to be performed by the excluded positions and that it is entitled to do so to protect the work performed by its members. It points out that it has "no contracting out" language in its collective agreements and that it is entitled to seek to enforce those provisions and to try to retain that protection in future agreements. It claims that it has not had the opportunity to negotiate about this issue at all because it was not recognized as the bargaining agent of the firefighters until January 1, 2001. Furthermore it has not been able to give notice to bargain because there has been no agreement between the parties, or order from the Board, about the bargaining unit description.

Decision

12. Section 22(1) of the PSLRTA provides:

13. (1) Subject to any agreement under section 20 that is in effect, the Board, upon the application of a successor employer or any bargaining agent that has bargaining rights, may by order determine the number and description of bargaining units that are appropriate for the successor employer's operations after the occurrence described in sections 3 to 10.

14. The Board can understand the City's frustration that it may not conclusively impose the management structure it seeks by designating individuals and by asking the Board to determine whether others are firefighters as provided in the SPPA. However, the problem arises, not because of a bargaining unit description issue, but because of a collective agreement provision. The FPPA does not specify how its provisions are to interact with those of collective agreements. The Association is entitled to seek to enforce the collective agreement provisions it has achieved through collective bargaining and it would be improper for the Board to try to modify those provisions in the guise of a clarity note attached to a bargaining unit description. Furthermore, the Association is entitled, like every other trade union, to bargain about the duties to be performed by its members vis-a-vis management and others and the protection of its bargaining unit work.

15. Avoiding future litigation is a factor the Board takes into account in determining bargaining unit descriptions under the PSLRTA but that does not mean it should use its authority to impose a bargaining unit description for the purpose of limiting collective agreement rights. Essentially the City is asking the Board to take away a right that the Association thinks it has under its collective agreement and to prevent it from seeking the same protection in another agreement. The City claims this is appropriate because the Association's perception that it has this protection is leading it to file grievances. Furthermore, if the protection is determined to exist by an arbitrator it may thwart the City's plans to impose the managerial structure it wants under the FPPA because it will not be able to assign its managers a full range of duties. However, by doing what the City asks, the Board would be inserting itself not only into the collective bargaining between the parties but into its grievances. That would be an abuse of the Board's authority to determine a bargaining unit description under section 22 of the PSLRTA.

16. There is a conflict between what the Association perceives is protected work under the collective agreement and the City's perceived need to impose a managerial structure. It would be preferable if that conflict could be resolved without extensive litigation. However it is not a bargaining unit description issue and cannot be resolved through this process.

17. It is not possible to specify who the non-firefighters i.e. the managerial employees, are in this department at this point because they have yet to be determined. The Board therefore finds that the bargaining unit should be described, pursuant to the partial agreement of the parties, as:

all firefighters as defined by Part IX of the Fire Protection and Prevention Act employed by the City of Hamilton.

17. The Board also declares that the firefighters in the above noted bargaining unit are represented by the Hamilton Professional Fire Fighters Association, Local 288, International Association of Fire Fighters.

18. The Board remains seized to deal with the issue of the "volunteers". The parties should advise the Board on or before April 27, 2001 if there is a dispute about that issue. If no such advice is received the application will be terminated at that time.

19. The City is directed to post copies of this decision in locations in the workplace where they are likely to come to the attention of affected employees. The copies must remain posted for 30 days.

"Laura Trachuk"

for the Board