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In the Matter of an Arbitration
between
The Regional Municipality of Niagara Police Services Board
and
The Niagara Region Police Association
(Pay Audit Grievance)
Richard L. Jackson, Sole Arbitrator
Before:
Appearances:
For the Association:
Mike Pratt
Richard Frayne
Ron Stewart
George Onich
Administrator
President
Director
Director
For the Board:
Woodward B. McKaig
Bob Rippey
Lynne Pay
Chris Fisher
Counsel
Member
Director, Human Resources
Finance and Budget Analyst
A hearing was held in this matter in St. Catharines on December 4, 1997.
This is an arbitration between the Niagara Regional Police Services Board and the
Police Association. The Association grieves that, in introducing a change in policy and
procedure with respect to the annual pay audit, the Board violated the collective
agreement. It asks that I so find.
Background
The situation giving rise to this grievance is somewhat complicated and confining.
Accordingly, I will start with a brief history, then set out the evidence and arguments of
the parties.
The action giving rise to the grievance has its roots in 1986, when the parties
negotiated a Compressed Work Week System, under which some officers would work
four 12-hour shifts, followed by four days off The basic structure of the new system is
seen in the following schematic, an excerpt from the shift schedule for December 1997:
December
8
9
10
11
12
13
14
15
16
17
1997
M
T
W
T
F
S
S
M
T
W
12-A
N
N
D
D
N
N
N
N
D
D
12-B
12-C
12-D
D
D
D
D
N
N
D
D
N
N
The officers on " D Platoon, for example, would work a 12-hour day shift on Monday,
December 8, and Tuesday, December 9, a 12-hour night shift that Wednesday and
Thursday, and would then have the next four days OK Friday, December 12, and
Saturday, December 13, would be covered by "B" and "C" Platoon on days and nights,
respectively, while Sunday and Monday would be covered by "A" and "B" Platoons on
days and nights, respectively.
Under this new system, officers would work, over the long term, an average of 42
hours per week. Given the traditional 40-hour week in the Niagara Police Service, the
parties agreed that every officer on the compressed work week system would receive 104
hours of "float time" each year, to be added to the lieu-time bank1 in order to compensate
officers for the extra two hours above 40 hours per week.
From the outset, the parties understood that officers on each of the four different
platoons would work slightly different numbers of hours in any given year, depending on
how their shifts and days off actually fell during the calendar year. Nevertheless, they did
not see this as a problem in the early years, given the fact that, over a four-year period,
every officer in all four platoons would work the same number of hours per week. In
assuming this, the parties failed to consider that some officers were transferred between
platoons and, as a result, might end up working slightly more or slightly fewer hours than
other officers worked, but be paid the same amount. One officer in this situation grieved.
As a result, the parties agreed in 1989 to institute an annual audit of hours. Under the
audit, officers were to be measured against the 2080-hour benchmark.* That is to say,
officers who were found to have worked more than 2080 hours would have float-time
added to their lieu-time banks to reflect that fact, while those who had worked fewer than
2080 hours would have float-time subtracted from their banks. Thus, after the 104-hour
lieu-time adjustment, and also after any hrther lieu-time adjustment arising out of the
annual audit, officers on the 12-hour shift (hereinafter referred to as "C.W.W. officers")
would have what might be thought of as "net remaining compensable hours" of 2080 per
year.
The grievance arose out of the following situation that precipitated an action by
the Board. On one hand and as noted above, C.W.W. officers have net remaining
1
This figure was the result of the following calculation: [42 hours (actually worked per week, on
average) - 40 hours (the appropriate theoretical hours per week)] x 52 weeks.
2
The basis of the 2080-hour benchmark was that it was the product of 40 (hours per week) x 52 weeks.
compensable hours of 2080 after the general adjustment of 104 hours and any specific
adjustments arising out of the annual audit. On the other hand, these officers are paid the
identical dollar amount received each week by those officers (of the same rank) on straight
8-hour days-that
is, 40 times their annual salary divided by 2080.
While all of this seems entirely logical on its face, there is a problem: namely, that
the officers on straight 8-hour days (hereinafter referred to as "8-hour officers") actually
work more, on average, than 2080 hours per year. The reasons for this are, first, that the
365 days in a normal year make slightly more than 52 weeks3 and, second, Leap Years
have an extra day, so that every fourth year has an extra 24 hours. As a result, while 8hour officers always receive 40 hours' pay at their hourly rate of pay (their annual salary
divided by 2080), every fourth year, they receive 53 rather than 52 pays. Thus, for
example, 8-hour officers worked and were paid for 2096 hours in 1996 (a Leap Year)
while, in 1995, they worked and were paid for 2080 and, in 1997, will have worked and
been paid for 2088 hours. Given that the pay of the C.W.W. officers (who, after the lieutime adjustments are made, always have 2080 remaining compensable hours), is
identical-in
terms of both the amount and thefrequency of their paycheques-to
that of
the 8-hour officers, it can be argued that they are being paid for hours not worked. That is
exactly the Board's perspective on the matter; the Board views the C.W.W. officers as
having been paid for 2096 hours in 1996, but having worked only 2080, in terms of
remaining compensable hours-that
is, the working hours that remain to be compensated
after both the 104-hour and the pay-audit lieu-time adjustments. The Association views it
differently.
The specific action giving rise to this grievance was the Board's unilateral decision
to change the base of the 1996 annual pay audit.4 Rather than base the audit on 2080
hours, as had been the case since its inception in 1989, the Board used a new audit base of
2096 hours-that
is, the exact number of hours worked by the 8-hour officers. Officers
who had worked fewer than 2096 hours had their lieu-time banks adjusted downwards,
3
7 (days) divided into 365 (days) = 52.143 (weeks) = 52 weeks + 1 day (approximately). For Leap
Years, this becomes 366 lvided by 7 = 52.286 weeks. Over a four-year period, the average number of
weeks in a year is 52.178.
That is, the audit conducted in January 1997 with respect to calendar 1996.
while the banks of those with more than 2096 were adjusted upwards. The net result of
this was that C.W.W. officers lost compensation, relative to the way they had been, and
would have been, treated under the 2080-hour audit base. The Association argues, first,
that the Board's action violates the collective agreement or, in the alternative, that the
Board should at least be estopped from unilaterally implementing this change for the 1996
calendar year.
Evidence
The parties submitted an agreed statement of facts, which is now set out.
Agreed Statement of Facts
Re: 1996 Pay Audit Grievance
Niagara Regional Police Members work 8, 10, or 12 hour shift.
There are 388 Members who work 12 hour shifts and 118 who work 10 hour shifts.
The 10 and 12 hour workers work what is called "compressed work weeks".
Compressed work week workers are paid on the same basis as the 8 hour day shift
workers, that is they are paid for 40 hours work each Thursday, subject to a 2 week lag,
notwithstanding that the compressed work week workers will work more or less than 40
hours in any given week.
In 1986, the compressed work week system was instituted. It was agreed by both
management and Association that the hours worked would not be equal in a given year
but over a four year period, they would work out.
In the late 1980s, some Members who had been transferred from platoon to platoon
complained about being treated unfairly with respect to hours. Accordingly, an audit of
hours was instituted in 1989.
A compressed work week worker works an average of 42 hours per week whlch amounts
to an extra 104 hours per year. These Members receive 104 hours off during the year as
"float" time.
When the audit of hours started in 1989, it was decided that the hours should be audited
against 2080 hours (52 weeks times 40 hours).
In 1996, an 8 hour day shift worker worked and was paid for 2096 hours.
10. In 1996, a compressed work week worker, after the audit reduced his effective hours
worker to 2080 hours, received pay for 2096 hours.
1 1. Since 1989, the hours paid to each 8 hour day worker and each compressed work week
worker are as follows:
1989
2080
1990
2088
1991
2088
1992
2096
1993
2088
1994
2080
1995
2080
1996
2096
1997
2088
In each of those years, 8-hour-day workers worked the stated number of hours and were
paid for those hours. However, compressed work week workers after the float time was
taken and the audit process was completed, were audited against a work year of 2080
hours but were paid pursuant to the hourly equivalent as set out above.
12. The general "audit of hours" issue has been negotiated at collective bargaining sessions
at various times, at least since 1993 in reference to the administrative difficulties in
terms of carrying out the audit process and the current language (Article 5.09 Uniform,
and 4.10 Civilian) was negotiated in connection with an attempt to alleviate the
administrative problem. There was no discussion by either the Board or the Association
of any overpayment to compressed work week workers.
The provisions from the 1995 collective agreement which may be relevant to this
situation are the following.
Article 2 -Salaries
2.01 The annual salary of each member of the Bargaining Unit for the year 1995 shall
be in accordance with Appendix " A and made part of this Agreement.
2.02 The Niagara Police Board agrees that the salaries shall be paid to the members of
the Bargaining Unit weekly, and such weekly pay period will be on Friday of each week.
Article 5 - Hours of Duty
5.01 A four platoon shfi system of three eight (8) hour shifts shall be established
whereby a member shall be on duty for eight consecutive hours, followed by at least
sixteen (16) consecutive hours off duty.. ..
5.06 A normal work week shall consist of forty (40) hours, but allowing for the four
platoon shift system and subject to the provisions of the foregoing subsections, the hours
of work shall consist of one hundred and sixty (160) hours out of every two hundred and
twenty-four (224) hours, or twentyeight (28) day period.
5.08 Effective January 1, 1988, Articles 5,6, 7, 9, 11, 12, 22,23, and Appendix "B"
shall be amended in accordance with the 12 hour Compressed Work Week System
provisions, as set out in Appendix "E" attached hereto.
Effective January 1, 1989 Articles 5,6,7,9, 11, 12,22,23 and Appendix ''I3''
shall be amended in accordance with the 10 hour Compressed Work Week System
provisions, as set out in Appendix "F'attached hereto.
5.09 To ensure that no member has been scheduled to work more or less than 2,080
hours in a calendar year, the following rules relating to an audit of hours shall apply:
(a) On or before March 1" of each year, each member shall meet with his or her
supervisor and review the relevant material provided by the payroll office...
(f) This provision applies only to those members who have worked a Compressed
Work Week during the course of the calendar year and "debits" and "credits" are those
that arise directly as a result of working such a system.
Article 6 -Overtime
6.01 Overtime shall mean all hours worked in excess of a regular tour of duty, and shall
be paid for at time and one-half for all such hours worked, save and except as otherwise
expressly provided for in this Agreement.
6.05 Overtime worked and paid for in cash or by cheque shall be computed at an hourly
rate based on the annual salary of the member affected at the time such overtime is
worked, divided by 2,080 being the total annual regular hours of work.. .
Article 13-Court Allowance
13.02 The hourly rate of pay shall be based on the annual salary of each member of the
S e ~ c affected,
e
divided by 2,080, being the total annual regular hours of work.
13.05 Each member of the Service who is required to attend a Court sitting as a witness
while off duty on annual vacation or on a statutory holiday, because of his or her duties
and status as a Police Officer, shall be paid in cash or by cheque or by way of tie off as
set out in Articles 6.03 and 6.04 herein, a minimum of four (4) hours of pay at double
the member's regularly hourly rate.. ..The hourly rate of pay shall be based on the
annual salary of each member of the Service affected, divided by 2,080, being the total
annual regular hours of work.
30.11 The arbitrator shall not have the jurisdiction to alter or change any of the
provisions of this Agreement or to substitute any new provision in lieu thereof, nor to
give any decision inconsistent with the terms and provisions of +is Agreement or to
deal with any matter not related to the subject matter of this Agreement.
Re: 12 Hour Com~ressedWork Week Svstem
5.01 A four platoon system of twelve hour shift scheduling shall be established,
whereby a member shall be on duty for twelve consecutive hours, followed by at least
twelve consecutive hours off duty. A normal shift cycle shall contain two (2) twelve
hour consecutive night shifts in accordance with the schedule set out in Schedule " A
attached hereto. A normal twelve (12) hour duty shift shall be as follows:
Day Shift:
0700 to 1900 hrs.
Night Shift:
1900 to 0700 hrs.
or:
0800 to 2000 hrs.
or: 2000 to 0800 hrs.
Each member, while on hidher twelve hour duty shift shall have there out, two rest or
lunch periods of forty-five (45) minutes duration each. One is to be scheduled midway
through the first six hours of the sift, the other midway through the second six hours of
the shift. Lunch or rest periods not taken as a result of work commitments shall be paid
for at straight time.
5.06 A normal work week shall consist of forty (40) hours but allowing for the
Compressed Work Week System, a normal work week under the 12 hour shift schedule
averages 42 hours per calendar week; therefore a bank of 104 hours "Float Time" is
credited over the period of a year. Ninety-six (96) hours of that bank shall be
characterized as "leave days" and scheduling of those days shall be administered in
accordance with the process and time lines as established for Annual and Statutory leave
days pursuant to Appendix "B".
The remaining eight (8) hour float time shall be taken off during the course of the
calendar year in which it was credited by agreement between the member and hidher
supervisor. In circumstances of illness or Duty Injury, a member may not be able to take
time off when required.
Therefore it will be banked and taken off at a later time in accordance with this
Agreement.
5.09 No change.
6.01 No change.
6.05 Overtime worked and paid for in cash or by cheque shall be computed at an hourly
rate based on the annual salary of the member affected at the time such overtime is
worked, divided by 2,080 being the total annual regular hours of work. Time worked in
excess of a member's scheduled tour of duty shall not be deemed as overtime unless it
exceeds fifteen (15) minutes.
Re: 10 Hour Com~ressedWork Week Schedule
5.01 A ten hour shift scheduling system shall be established, hereby a member shall be
on duty for ten consecutive hours, followed by at least fourteen consecutive hours off
duty, unless the parties agree otherwise. The normal shift cycles shall be in accordance
with Appendices "A to H" as attached hereto. A normal ten (10) hour duty shift shall be
as follows:
Day Shift:
or:
0700 to 1700 hrs Afternoon Shift: 1200 to 2200 hrs
0800 to 1800 hrs
or: 1400 to 2400 hrs
or: 1500 to 0100 hrs
or: 1600 to 0200 hrs
Each member, while on their ten hour duty shift shall have there out, a rest or lunch
period of seventy-five (75) minutes duration. Lunch or rest periods not taken as a result
of work commitments shall be paid for at straight time.
5.02 A member's days off shall be established in accordance with the shift schedule.
5.06 A normal work week under the 10 hours shift schedule shall average 40 hours per
calendar week
5.09 No change.
6.05 Overtime worked and paid for in cash or by cheque shall be computed at the
hourly rate based on the annual salary of the member affected at the time such
overtime is worked, divided by 2,080 being the total annual regular hours of
work. Time worked in excess of ten (10) hour per tour of duty shall not be
deemed as overtime unless it exceeds fifteen (15) minutes.
The Compressed Work Week was instituted in 1986 on the basis of a report by
the "Compressed Work Week Committee", a joint labour-management committee.
Pursuant to the recommendations of this Committee, the parties executed a letter of
understanding, part of which is set out below.
Letter of Understanding
Between:
The Niagara Regional Board of Commissioners of Police
(Hereinafter called the "Niagara Police Board)
and
The Niagara Region Police Association
(Hereinafter called the "Association")
Re: 12 Hour Com~ressedWork Week Svstem
The Niagara Police Board and the Association hereby agree to implement a 12
Hour Compressed Work Week System subject to the following terms and conditions:
1. The Association and the Force Administration shall jointly monitor the Scheduling
System via a committee known as the Compressed Work Week Committee. The
Committee will function in accordance with the Information Manual as established
in the Policy and Procedures of the Force.
2. The 12 Hour Compressed Work Week System shall commence on January la, 1987
and terminate on December 3 la', 1987, unless otheNvise agreed by both parties.
3. The 12 Hour Compressed Work Week System may be extended by mutual
agreement of the parties, otherwise all Members affected shall revert back to the
shift schedule that was in effect on December 3 1" 1984, as of January la, 1988.
4. During the tenure of this Letter of Understanding, the following Articles of the
Uniform Branch Collective Agreement shall operate as hereinafter specified, for
those members assigned to work the 12 Hour Compressed Work Week Schedule:
Article 5 - Hours of Duty
5.01 A four platoon system of twelve hour shift scheduling shall be established,
whereby a member shall be on duty for twelve consecutive hours, followed by at
least twelve consecutive hours off duty. A normal shift cycle shall contain two (2)
twelve hour consecutive day shifts followed by two (2) twelve hour consecutive
night shifts in accordance with the schedule set out in Appendix " A attached
hereto. A normal twelve (12) hour duty shift shall be as follows:
Day Shift: 0700 to 1900 hrs
Night Shift: 1900 to 0700 hrs
or: 0800 to 2000 hrs
or: 2000 to 0800 hrs
Each member, while on his twelve hour duty shift shall have thereout, two rest or
lunch periods of forty-five (45) minutes duration each. One is to be scheduled
midway through the first six hours of the shift, the other midway through the
second six hours.
5.02 A member's days off shall be established in accordance with the shift schedule.
5.03 No change.
5.04 No change.
5.05 No change.
5.06 A normal work week under the 12 hour shift schedule averages 42 hours per
calendar week; therefore a bank of 104 hours "Float Time" is earned over the
period of a year. This "Float Time7'must be taken off by the end of the year
therefore the year must be divided into quarters. For the purpose of controlling
this "Float Time", 26 hours "Float Time" will be taken off in each quarter by
agreement between the member and his supervisor. The member shall be advised
of any time left outstanding in the quarter. Any time not taken off by the first day
of the thrd month in the quarter shall be taken off prior to the end of each
quarter. If the member fails to provide a time off schedule upon request of the
supervisor, such time will be designated by the supervisor in a minimum of four
hour blocks. In circumstances of illness or Duty Injury, a member may not be
able to take the time off when required. Therefore it will be banked and taken off
at a later time in accordance with this Article.
5.07 No change.
Artlcle 6 - Overtime
6.01 No change.
6.02 No change.
6.03 No change.
6.04 No change.
6.05 Overtime worked and paid for in cash or by cheque shall be computed at an hourly
rate based on the annual salary of the member affected at the time such overtime
is worked, divided by 2,080 being the total annual regular hours of work. Time
worked in excess of twelve (12) hours per tour of duty shall not be deemed as
overtime unless it exceeds fifteen (15) minutes.
6.06 No change.
Civilian employees
Article 4 - Hours of Duty
Shall provide the same as the Uniform Branch Article 5 provisions.
Article 5 - Shift Premiums
5.01 Civilian members required to work the shift system as provided for in Article 4
shall receive thirty-four cents ($.34) per hour additional compensation for all
hours worked on the night shifts only.
Article 6 - Overtime
Shall provide the same as the Uniform Branch Article 6 provisions.
Detective Richard Frayne, President of the Niagara Regional Police Association,
testified at the hearing that it was his understanding that, when the Force instituted the
compressed work week in December 1986, there was to be no change in pay, that all
Board employees-including
both 8-hour and C.W.W. officers-were to continue to be
paid once per week, on ~ h u r s d a ~and
s , ~that they were to receive 40 hours' pay at the
appropriate hourly rate, which was their annual salary divided by 2080. According to
Detective Frayne, this was the case with the move to the compressed work week in 1986
and remains the case today. Detective Frayne also testified that, until the 1997 audit of
1996 pay, the annual pay audit always used the figure 2080 as the benchmark.
Ms Lynne Pay, Director of Human Resources for the Niagara Regional Police
Service, testified for the Board that she first became aware of the fact that C.W.W.
officerswere paid for more hours than they actually worked in January 1997, when it was
raised in a meeting with Lucy Stevens, Director of Finance, and Chris Fisher, Finance and
Budget Analyst. It was then brought to the attention of the Police Services Board and,
ultimately, a decision was made that C.W.W. officers should be adjusted back to the level
5
The evidence made clear that employees were paid on Thursdays, even though Article 2.02 of the
collective agreement states that they are to be paid on Fridays.
of uncompensated hours they actually worked-namely, 2080. Pursuant to that decision,
the Chief of Police sent out a memorandum, part of which is reproduced below.
MEMORANDUM
TO:
All District and Division Commanders
DATE: 97-02-23
FROM:
Chief J. Grant Waddell
SUBJECT:
1996 AUDIT OF HOURS INFORMATION
Information relating to the 1996 Audit of Hours is now available and is being
distributed for your attention. The Audit is primarily directed to those members who
work a compressed work week and all C.W.W. members must advise. in writing, how
time owing is to be handled. All members in 1996 were paid for 2096 hours and
relevant adjustments will be made accordingly.. .
In 1997, members assigned as follows with
Shift Base
B Platoon
C Platoon
D Platoon
I
2208
2196
2220
2184
Hours Worked
Less Float
I
I
A Platoon
I
104
104
104
104
discrepancies should reflect:
Difference from
Audit Base
2080 Hours
I
2104
2092
2116
2080
Difference
from Hours
Paid in 1996 2096 Hours
+ 24
+ 12
+ 36
0
*
All Audit adjustments will be based on the difference between hours actually
worked, the Audit base of 2080 hours and the actual hours paid (2096) in 1996.
The Chiefs memo was supplemented three days later by the following memo from Chris
Fisher.
MEMORANDUM
To:
TO ALL COMPRESSED WORK WEEK PERSONNEL
Date:
1997-02.26
From: Chris Fisher, FinancialBudget Analyst
Subject: 1996 AUDIT OF HOURS & 1997 HOURS OF PAY
In addition to the correspondence dated 97-02.14 to "All District and Division
Commanders" in reference to the 1996 Audit of Hours, please note the following:
Members who were assigned to work the following shift base in 1996, with no
discrevancies, will have been scheduled to work:
Shift
Hours Worked
Difference
from Hours
Paid (2096)
A PLATOON
2208 less float (104) for a total of
2 104 hours
+ 8 hours
B PLATOON
2196 less float (104) for a total of
2092 hours
- 4 hours
C PLATOON
2184 less float (104) for a total of
2080 hours
- 16 hours
D PLATOON
2196 less float (104) for a total of
2092 hours
- 4 hours
NOTE: For those members thinking about 1997 hours, be advised that each person with
no discrepancies will normally receive 2088 hours of pay in 1997. Therefore,
you may want to consider working 2088 hours, when reviewing your 1997 work
schedule.
For your information,
Chris Fisher
It is the decision reflected in these memoranda which the Association is grieving; that is to
say, the decision to adjust lieu-time banks relative to 2096 hours of work rather than 2080.
Ms Pay also testified that she and Ms Stevens, Director of Finance, had had several
complaints from officers on 8- and 10-hour shifts, to the effect that C.W.W. officers were
getting a benefit not enjoyed by other officers.
Mr. Chris Fisher, who was Director of Finance from 1989 to 1995 and, from that
point on, FinanceJBudget Analyst, also testified for the Board with respect to the
compressed work week. Mr. Fisher was asked what the intent or purpose of the annual
pay audit was. His response was that it was intended to ensure that all C.W.W. officers
were treated equally vis-a-vis all other compressed work week employees; that is, that
they were paid equally in terms of pay for hours worked. In response to a question as to
why the audit was tied to the figure of 2080, Mr. Fisher responded that 2080 was
established as the benchmark because it was the product of 52 (weeks) times 40 (hours),
and that the parties making that decision simply "did not look at a calendar7'-that is, they
failed to realize that there are slightly more than 52 weeks in the average year. Mr. Fisher
explained that, in fact, in most years, there are 52 weeks plus one extra paid day and, in
Leap Years, 52 weeks plus two paid days. Thus, with a system that generates a cheque for
40 hours of pay (at the rate of one's annual salary divided by 2080) every Thursday,
employees will receive 52 pays each year for three years but, in the fourth year, they will
receive 53 pays.
Mr. Fisher was asked, in examination-in-chief, what could have been done in 1989
to correct this problem. He answered that there were three possible solutions. First, the
parties could have made 2088, rather than 2080, the benchmark against which the audit
was to be done. Second, the wording in Article 5.09 of the collective agreement could be
changed so as to make the audit base equal to the hours an 8-hour employee actually
performed in a given year. Finally, the actual pay of the C.W.W. officers could be based
on salary divided by the number of hours actually worked in a given year, rather than
2080.
Mr. Fisher testified that he had first realized that this was a problem in late 1991 or
early 1992. At that time, he had orally drawn his concerns to the attention of the thenDirector of Administration, Larry Inman, as well as to the then-Chief of Police, John
Shoveller. Mr. Fisher testified that he did not know what Mr. Inman or Chief Shoveller
did about the problem, but that he was not asked to prepare any sort of report for the
Board or take any firther action. In any event, nothing was done about the situation until
the Board's decision in January of 1997.
Finally, it should be noted that, in negotiations for the 1996-97 collective
agreement, the Board proposed a change to the pay system in order that officers no longer
receive payment for the extra day in Leap Years. While this request was denied by the
arbitration board, of which I was chair, Lucy Stevens's written explanation of the Board's
proposal was submitted into evidence by the Association in this arbitration. It is
reproduced below.
Leap Day
An attempt at explaining the payroll process in a leap year.
The Niagara Regional Police Service personnel are paid on an hourly basis.
Each position has an annual rate, which is then reduced to an hourly rate. For example,
a first class constable has a base salary of $5 1,278.66 which, based on 2080 hours a year
equals an hourly rate of $24.65. The pay is calculated on the actual hours worked in the
year. For payroll purposes, the pay week runs from Monday to Sunday. Therefore, in
any given year the amount of pay any individual receives may or may not be equal to
2080 hours. In 1996, an eight hour employee worked and was paid for 2096 hours.
This happened because there were 52 weeks plus 2 days in the calendar year. December
3013 1 pays will be reflected in the 1997 T4's of the employees. In most years, an 8
hour/day employee works 261 days or 2088 hours. This was the case in 1995 and will
be in 1997 and 1998. To equate this to the earning of the employee, a first class
constable who is in a day shift will be paid $5 1,476 most years. In 1996 calendar year
the pay was increased to $5 1,673 reflecting the extra day in the year.
Since the employees on the compressed work week are paid in the same manner as the 8
hour employee an inequality occurs as a result of the float bank equation. Each first
class constable will be paid for 262 days. However, due to the 2080 hour cap, 16 hours
will be added to the float bank of every member on the compressed work week schedule.
Therefore, they will have received pay for 2096 hours but only be required to work 2080
hours.
In setting the base of hours for the audit purposes, if the compressed work week
continues, the hours paid to an 8 hour employee must be used as the benchmark.
An average daily cost for based salaries in the NRPS is 130,000.
By requesting that each member have a day off without pay in the leap year the effect on
each member would be unnoticed over the prior year's pay.
Base salary
$51,279
Actual calendar pay
$5 1,476
Leap Year pay
$51,673
Arguments
As set out above, the Association advanced two lines of argument. Their first
argument was that, in unilaterally changing the pay audit to a baseline of 2096, the Board
violated the collective agreement. Essentially, this argument is founded on the notion that
the parties understood that the 8-hour employees actually worked and were paid for more
than 2080 hours and, when the compressed work week was brought in, it was the parties'
intent that, notwithstanding that the C.W.W. officers would work 2080 hours (after the
104 lieu-time adjustment), they would continue to receive identical pay to the 8-hour
people - that is, for more than 2080 hours. This slightly higher hourly rate would make
sense, after all, since C.W.W. officers work night and weekend shifts, and don't receive
overtime, even thought they will work 48 hours in one week.
According to the Association's argument, it simply is not credible that the parties
would have not have seen this, given the importance of salaries to employees, and given
that this regime was drawn up by experienced and sophisticated police labour relations
practitioners. This was confirmed, according to the Association, by the fact that, although
this situation was drawn to the attention of the Chief of Police and Director of
Administration in late1991 or early 1992, they did nothing to change it. We must
conclude, in other words, that they did nothing about it because they knew that was the
way it was supposed to be.
The Association's second argument was that, should I find that the Board's action
did not violate the collective agreement, then I should at least find that the Board should
be estopped from taking the action it did, given the Association's detrimental reliance on
the practice. The earliest the Board should be allowed to act should be 1999, with respect
to the calendar year, 1998, according to the Association.
The Association cited the following cases for my assistance: Re CN-CP
Telecommunicationsand Canadian Telecommunications Union, 4L.A.C. (3d) 205
(Beatty, 1981); Re Canadian National Raihvay Co. et al. and Beatty et al., 128 D.L.R.
(3d) 236 (Osler, 198 1); Re Maple Lodge Farms Ltd. and United Food & Commercial
Workers, Local 175,24 L.A.C. (4")) 2 11, (Brown, 1991).
The Board argued, on the other hand, that it was all a mistake, that the parties
really did not realize the implications of what they were doing. To use Mr. Fisher's
words, they "didn't look at the calendar" and failed to take into account that there are
more than 52 weeks in any year. In other words, they built a salary-payment process on
the assumption that there are exactly 52 weeks in every year, left it in place for many
years, and only when the Board realized and engaged with the true implications did it try
to remedy the pay-for-hours-not-worked flaw by adjusting the audit base for the 1996
calendar year from 2080 to 2096.
The Board cited the following cases for my assistance: Brown & Beatty, 8:1410;
Re Northern College of Applied Arts and Technology and Ontario Public Service
Employees Union, 21 L.A.C. (4th) 82, 23 C.L.A.S. 435 (Burkett, 1991); Re Lincoln
County Board of Education and Canadian Union of Public Employees, Local 1 5 2 ' 3 1
L A C . (4th) 327 (Whitehead, 1993); Re Corporation of City of Belleville and Canadian
Union of Public Employees, Local 907, 42 L.A.C. (4th) 224 (Allison, 1994); Re United
Electrical Workers, Local 512, and Standard Coil Products (Canada) Ltd , 2 2 L.A.C.
377 (Weiler, 1971); Re Ottawa Board of Education and Federation of Women Teachers'
Federations, 25 L.A.C. (3d) 146 (Picher, 1986).
Decision
The first question that must be addressed is whether or not, as the Association
argues, the Board has violated the collective agreement in using a base of 2096 hours for
the audit of hours worked over the calendar year 1996. To answer this question requires
a detailed analysis of the collective agreement, but not just of Article 5.09, because this
situation is an outgrowth of a large, complex, and long-standing set of factors.
Starting from the beginning, then, the collective agreement between the parties
makes clear the following:
1. that officers are to be paid weekly (Article 2.02);
2. that the normal work week is 40 hours (Article 5.06).
Taken together, Articles 2.02 and 5.06 require that officers-all officers-be
paid
regularly once per week for 40 hours of work.
The question that arises at this point is at what rate these 40 hours of work should
be paid for these hours. Articles 6 and 13 seem to answer that question, especially the
latter. Article 13 deals with court allowance, and 13.02 uses this language:
The hourly rate of pay shall be based on the annual salary of eaqh member of the Service
affected, divided by 2080, being the total annual regular hours of work.
Article 13.05 refers to "the member's regular hourly rate" in the first sentence and, then, in
the third sentence, defines that term as "the annual salary of each member.. .divided by
2080.. . ." Article 6.05 uses language similar to that of 13.02:
Overtime worked and paid for in cash or by cheque shall be computed at an hourly rate
based on the annual salary of the member affected at the time such overtime is worked,
divided by 2,080 being the total annual regular hours of work.
Article 13 provides for pay at time and a half for court attendance while off duty
and Article 6 provides for pay at time and a half for overtime. Both articles make clear
that time and a half is to be calculated using the member's regular annual salary divided by
2080. Given that it is virtually universal practice under collective agreements, not to
mention common sense, that the premium rate of time and a half uses an employee's
regular hourly rate of pay, it seems clear that, that under the terms of these parties'
collective agreement, "member's hourly rate" means their annual salary divided by 2080.
Indeed, that has been the parties' practice with respect to all officers, including those on
the compressed work week.
The conclusion that emerges from the interaction of Articles 13 and 6 on one hand
and Articles 2 and 5 on the other is that officers are to be paid, once per week, for 40
hours of work, at the rate of each member's annual salary divided by 2080 for each of
those 40 hours. When combined with the facts that (1) the C.W.W. officers are reduced,
through the 104-hour and pay-audit float-time adjustments, to remaining net compensable
hours of 2080 per year and (2) there are more than 2080 hours in the average year, this
inevitably results in a situation which can be characterized as C.W.W. officers either being
paid for hours not worked or being paid at a slightly higher actual hourly rate6 for the
hours they did work (aside from those hours compensated for by the 104-hour and
specific lieu-time adjustments).
This is exactly how the collective agreement has been administered over the years,
and, indeed, it is not clear that there is any dispute between the parties, at least up to this
point. Rather, the dispute arises in what comes next-that
is, whether or not the Board
had the right to unilaterally adjust the annual pay-audit base in.order to overcome the
situation described in the last sentence of the previous paragraph.
Article 5.09 deals with the pay audit and is set out again here for convenience.
6
Higher, that is, than the rate of their annual salary divided by 2080. For example, in 1996, a First Class
Constable's nominal salary, as set out in Appendix A of the collective agreement, was $5 1,278.66.
That salary divided by 2080 was $24.65. On the other hand, since the First-class Constable on the
compressed work week was actually paid identically to a First-class Constable on straight days-that is,
C.W.W. Constable received an actual hourly rate of $24.84, when
$51,673 ($24.65 x 2096-e
calculated on a base of 2080 hours.
5.09 To ensure that no member has been scheduled to work more or less than 2,080
hours in a calendar year, the following rules ...shall apply.
(0 This provision applies only to those members who have worked a Compressed Work
Week during the course of the calendar year and "debits" and "credits" are those
that arise directly as a result of working such system.
The opening sentence of Article 5.09, on its face, is ambiguous and difficult to
understand; taken literally, it does not at first appear to say what it really means. While
the first sentence gives as the purpose for the audit, "to ensure that no member has been
scheduled to work more or less than 2,080 hours", which has a clear literal meaning, we
know fiom the evidence that, under the compressed work week, every member is likely to
have actually been scheduled to work more or less than 2,080 hours. What it really
means, on the other hand, is something along the following lines: to ensure that any
member who has actually worked more or less than 2,080 hours (after the 104-hour lieutime adjustment) is properly compensated, thefollowing rules. . . ." In fairness to the
original drafters of this language, one can see that the context allows for this second
interpretation, although it is not as immediately obvious as the more literal interpretation
set out above.
The ambiguity in the first sentence of Article 5.09 allows and, indeed, requires an
examination of whatever extrinsic evidence might exist to reveal the parties' joint intent
with respect to this provision. Happily, such evidence is present in Chris Fisher's evidence
and in the parties' agreed statement of facts, specifically the following paragraphs.
In 1986, the compressed work week system was instituted. It was agreed by both
management and the Association that the hours worked would not be equal in a gven
year but over a four year period, they would work out.
In the late 1980's, some Members who had been transferred froitl platoon to platoon
complained about being treated unfairly with respect to hours. Accordmgly, an audit of
hours was instituted in 1989.
When the audit of hours started in 1989, it was decided that the hours should be audited
against 2080 hours (52 weeks times 40 hours)
In the light of this evidence, the meaning and intent behind Article 5.09 become
clear. The first sentence sets out the purpose of the audit-that
is, to eliminate inequities,
as between C.W.W. officers, stemming fiom the fact that, while the yearly average of
hours worked comes out equally over a four-year period as long as an officer remains on
the same platoon, an officer who is transferred may end up working more than other
officersbut not be paid for them (or, presumably, vice versa---that is, an officer might
work less than other officers, but still be paid the same as those officers). Thus, the hours
of each officer on the compressed work week must necessarily be compared or audited
against a common base. The parties decided that that base should be 2080 hours and
enshrined that specific figure in Article 5.09.
It should be understood that, in order to accomplish the original and stated
purpose of the audit-namely,
to equalize compensation in terms of pay for hours worked
amongst officers on all four platoons on the compressed work week, whether or not they
had transferred--any base could have been used, including 2096. The trouble is that
Article 5.09, the parties' agreed statement of fact, and Mr. Fisher's evidence all make clear
that the entire audit process is centred on the figure 2080. The parties agreed on that
figure; that is what the collective agreement states; and that is what they have practised
over the years since 1989. There is simply no question about the audit base being
anything but 2080. Thus, the Board appears to have gone beyond what Article 5.09
allows in unilaterally applying a new audit base of 2096.
But there is another problem, as well. It is clear, on the basis of the wording of
Article 5.09 in the light of the agreed statement of facts, as well as the testimony of Mr.
Fisher, that the parties' intent in setting up the audit process was to eliminate unequal
treatment in terms of pay for hours worked as between officers on the compressed work
week. Subparagraph ( f ) speaks to this intent:
This provision applies only to those members who have worked a Compressed Work
Week during the course of the calendar year and "debits" and "credits" are those that
arise directly as a result of working such system.
Like the opening sentence of Article 5.09, subparagraph ( f ) is open to several
different interpretations. While the first clause makes it clear that the audit system applies
only to those on the compressed work week, the second clause is more difficult to
understand and is open to several different interpretations. Does it mean that the debitingand-crediting system applies only with respect to whether C.W.W. officers are above or
below 2080 remaining compensable hours (after the 104-hour float-time adjustment), or
can it also be interpreted, as the Board has done, to apply with respect to something
beyond that---namely, the actualpay received by C. W: W: ofJicers? On its face, both
interpretations are possible.
Again, the extrinsic evidence of the parties' agreed statement of facts helps cla*
it. First, the purpose of the pay audit was to ensure equal treatment, in terms of pay for
hours worked, as between the officers on the compressed work week. Subparagraph (f)
then makes clear that "debits" and "credits" must arise directly as a result of working the
compressed work week system and that debiting and crediting applies only to those
officers on the compressed work week. The terms "debits" and "credits" clearly mean
subtractions from and additions to members' lieu-time banks, which raises the questions as
to what criterion determines whether a member is debited or credited and the extent of any
such debit or credit. The antecedent of subparagraph (f) is the introductory sentence of
Article 5.09; the determining criterion is, of course, whether or not, and the extent to
which, members are above or below 2080 net remaining hours compensable after the 104hour lieu-time adjustment. Members found to have remaining compensable hours of less
than 2080 hours, after the 104-hour adjustment, are to be debited float-time hours, while
those found to have uncompensated hours of more than 2080, also after the 104-hour
adjustment, are to be credited hours, the net result of which is that both groups (in fact, all
officers in all four platoons) will end up having been compensated equally in terms of pay
for hours worked. The debit-and-credit system, then, is internal to the C.W.W. regime
and pivots on the figure 2080; it simply measures hours actually worked against that
figure. It measures hours against hours. The Board's unilateral changing of the audit
base to 2096, on the other hand, is a comparison of hours againstpay received. In effect,
then, the Board's action has altered the basic principle of the audit to something that was
never intended, was never negotiated, and is inconsistent with Article 5.09.
It therefore must be concluded that the Board has violated Article 5.09 in
unilaterally altering the base. Until and unless the Article is changed, the audit must be
tied to the figure of 2080 because Article 5.09 specifies that figure.
But what of the Board's argument that the parties simply did not put their minds to
the fact that there are more than 52.0 weeks in a year and that, in instituting the 12-hour
shift system without changing the pay mechanism under the collective agreement, they
inadvertently started paying the C.W.W. officers for more hours than they actually
worked? What if this situation is simply due to a mistake? According to counsel for the
Board, the parties simply cannot have intended such an absurd result.
At this point, it is instructive to review the different ways in which the "pay for
hours not worked" problem (as the Board views it) might be resolved, and the
implications each one has for the collective agreement. It will be remembered that, when
Chris Fisher was asked what the parties could have done in 1989 to prevent this problem,
he cited three solutions:
(1) The parties could have made 2088, rather than 2080, the benchmark against which the
audit would be done.
(2) The wording in Article 5.09 could have been written so as to make the audit base
equal to the hours an 8-hour employee actually worked in a given year.
(3) In calculating the hourly rate of the C.W.W. officers, their annual nominal salary could
have been divided by the hours actually worked rather than by 2080.
Any of these three options could have been chosen by the parties but, unfortunately for the
Board's position, were not. Options 1 and 2 are foreclosed by the fact that the parties
decided on an audit base of 2080, wrote it into the agreement as Article 5.09 and, until
1996, followed it. Option No. 3 is foreclosed by the clear meaning of "members' hourly
rate" in the collective agreement, the parties' long-standing understanding of that term,
and the Niagara Regional Police Service's tradition and practice. The divisor has always
been stated in the collective agreement and understood to be 2080 for all officers, and new
language will have to be negotiated to change it for the C.W.W. officers.
There are also at least four other ways in which this situation could be remedied.
First, the 104-hour float time adjustment itself could be adjustable-that is, rather than a
fixed 104 hours of float-time every year, officers could receive whatever number of floattime hours would take them down to the number of hours which the 8-hour people had
worked and for which both groups had been paid (to take 1996 as an example, 2096,
rather than 2080). The problem with this option, obviously, is that it is contrary to Article
5.06 of Appendix E, which specifies an addition of 104 hours of float time. A second
option is that all officers could be paid twice monthly instead of weekly. That, of course,
ignores the requirement in Article 2.02 that officersbe paid weekly, not to mention the
fact that it would fhndamentally alter the entire pay regime. Third, the weekly salary paid
could spec@ as the member's annual salary divided by 52.178 (the actual average number
of weeks in a year over a four-year period). This, however, would require a fhndamental
change in the pay model and, no doubt, new language in the collective agreement.
Fourth-and this is really only a variant on the previous idea--officers could receive equal
weekly payments of their annual salary divided by 52 for 5 1 weeks, and one final variable
payment which would bring their compensation up to the exact hours worked during that
particular year. This, too, would significantly hndamentally alter the pay model, at least
for the C.W.W. personnel, and would require new language in the agreement.
In the context of a rights arbitration, none of these options is an acceptable
solution because, of course, all of them are inconsistent with the collective agreement.
The first two options require, in effect, that Article 5.09 be rewritten, while the third
option requires, most probably, an entirely new provision, explicitly stating that the hourly
rate for C.W.W. officers be calculated, not as it has always been done in the Niagara
Police Service for all officers-annual
salary divided by 2080-but
as annual salary
divided by the number of hours actually worked. The fourth option requires an
amendment to Article 5.06 of Appendix E to the collective agreement, and the fifth, sixth
and seventh options require amendments to Article 2.02 of the collective agreement and a
hndamentally new approach to remitting pay to officers. As a rights arbitrator, I am
foreclosed by the general jurisprudence, as well as by Article 30.11 of the parties' own
collective agreement, from doing any of these things. Article 30.11, again, is as follows.
The arbitrator shall not have the jurisdiction to alter or change any of the provisions of
this Agreement or to substitute any new provision in lieu thereof, nor to give any
decision inconsistent with the terms and provisions of this Agreement...
Some of the methods set out above for resolving the C.W.W. problem including
the first two, both of which deal with the audit and Article 5.09-require the ignoring and,
in effect, the rewriting of various provisions of the collective agreement. While counsel
for the Board did not argue the doctrine of rectification, that is in a sense the next logical
step in the hndamental thesis of his argument: that the parties intended one thing when
the compressed work week was brought in (that C.W.W. officers would continue to be
paid equally, in terms of pay for hours worked, vis-a-vis other officers) but that, due to an
oversight (namely, that one year contains more than 52.0 weeks) in combination with the
parties' pay regime (once per week, for 40 hours, at an effective hourly rate of annual
salary divided by 2080), the result has been something other than equality. It seems to me
that counsel for the Board, in asking that I sustain the Board's unilateral changing of the
audit base, is coming close to asking that, in effect, I rectifjr the agreement so as to reflect
the parties' real intent.
The Supreme Court of Canada decisions in Port Arthur Shipbuilding (1968) [70
D.L.R.(2d) 693,68 C.L.L.C. 14,136 (S.C.C.)] and Metropolitan Toronto Police
Association et al. v. Metropolitan Toronto Board of Commissioners of Police (1974) [45
D.L.R.(3d) 548, C.L.L.C. 14,223 (S.C.C.)] put very tight strictures on arbitrators in terms
of their authority to rectifjr a collective agreements; that is, unless explicitly permitted to
do so by the governing labour statute or a provision in the collective agreement, they
could not. In more recent years, however, some arbitrators have departed from this line
and have applied the doctrine of rectification. The most persuasive line of reasoning, in
my view, suggests that, where it is clear that the language of the collective agreement does
not reflect what the parties agreed to in negotiations (typically because of a clerical or
typographical mistake), a distinction must be drawn between the document entitled
"collective agreement" and the real agreement between the parties. Arbitrator Jane
Devlin explained how this theory got around the strictures imposed by such provisions as
Article 30.11 in the Niagara agreement.
In my view, these restrictions are designed to prohibit any change or amendment to
the true agreement and were not designed to impose upon the parties the results of
a clerical error or omission which was never part of the bargain which they struck.
Re Ethyl Canada Inc. and E. C. W.U., Local 300 (1987), 26 L.A.C. (3d) 20 1 [at
2081.
The question arises, then, as to whether or not I can use this line of argument to
rewrite Article 5.09 so as to free the Board to base on the audit on pay actually received
and thus eliminate the C.W.W. pay "problem". The answer is that I cannot. The doctrine
of rectification, while applied, is used very carefully, as Arbitrator Devlin noted in Ethyl
Canada,
If there is uncertainty as to whether the written document reflects the true
agreement of the parties, then that uncertainty ought to be resolved in favour of the
language of the written document.
Arbitrator M. V. Watters put it even more forcehlly in Re Seminole Management and
Engineering Co. and C.A.W., Local 195 (1989), 4 L.A.C.(4th) 380 [at p. 3881.
...there are certain restrictions inherent to the concept of rectification which will
serve to limit or restrict its use.. .the party seeking its benefit has the burden of
producing convincing proof not only that the document to be rectified was not in
accordance with the parties' true intentions at the time of its execution, but also
that the document in its proposed form does accord with their intentions.
Clearly, there is no such proof in this case. While the Board argues that the parties must
have made a mistake because they could not have intended such an absurd result, the
Association argues that, given the importance of pay to the members and the
sophistication of the parties, they could not possibly have overlooked such an outcome, a
conclusion that it argues is reinforced because it is clear from the evidence that the
situation was drawn to the attention of the Chief of Police and Director of Administration
in late 1991 or early 1992, and they did nothing about it. Both the Board and the
Association make plausible arguments; either could be right. The reality is, however, that
we do not know with a high enough level of certainty what was intended. And we are not
talking here about a simple clerical error; we are talking about an outcome resulting fiom
a complex combination of factors, all of which have been in place at least since 1989. In
the result, there is no possibility of my rewriting the collective agreement in order to
sustain the Board's action.
The situation with respect to the doctrine of rectification reflects a more
fkndamental principle of rights arbitration and, indeed, of contract interpretation. The
essence of the arbitrator's task, in a contract-interpretation case, is to ascertain the parties'
intentions and to base his or her award upon those intentions. Those intentions are
assumed to be found in the parties' own written words. In this situation, while I certainly
have some doubts that the parties in Niagara intended this particular outcome and believe
that the Board may very well be right when it argues that it was simply an oversight, those
concerns must be outweighed by the specific language of the collective agreement which,
when looked at in the light of the evidence of the parties' agreed statement of facts, is
clear. An unintended consequence does not empower me as a rights arbitrator to ignore
or alter the language of the collective agreement.
Counsel for the Board argued that the parties cannot have intended a result which
can only be described as "absurd. The Association, as noted, disagreed with this
argument. With respect, I do not agree that it is "absurd". Black's Law Dictionary, for
example, defines an "absurdity7' as follows:
Anythmg which is so irrational, unnatural, or inconvenient that it cannot be
supposed to have been within the intention of men of ordinary intelligence and
discretion. Obviously and flatly opposed to the manifest truth; inconsistent with
the plain dictates of common sense, logically contradictory; nonsensical,
ridiculous.
In my view, "absurdity" is too strong a word to use for this situation. If it were truly
absurd, then the parties would have noticed it and done something about it long before
now. A better word, in my view, would be "anomalous7'. That, unfortunately, provides
no basis for ignoring the clear meaning and intent of the agreement. Arbitrator J.F.W.
Weatherill's words in Re United Automobile Workers, Local 1524 and General Spring
Products Ltd. 23 L.A.C. 73 (1 971) are instructive in this regard.
It was contended by the company that this result was "absurd", and that the
agreement should be interpreted so as to avoid an absurdity. It may well be that
the result of the application of this provision according to its plain meaning leads
to anomalous results in some situations, in that it is sometimes actually to the
benefit of "Z" shift employees to remain away fiom work. This may be thought to
be anomalous or ill-considered; it may not fit into what one of the parties regards
as the pattern of vacation payments; but it is not "absurd as that term is used in
the context of contract interpretation.
Fundamentally, this "anomalous" o u t c o m k f it is anomalous, and not just what
the parties understood all along, as argued by the Associatiorris a product of the
peculiar pay regime embedded in the Niagara Regional Police Service's collective
agreement and reflecting the parties' long-standing practice and tradition. It stems, first,
fiom the fact that the system is based on an annual salary amount, but pays it out as if the
officers were hourly rated employees. This particular "problem" came about because the
pay system remained in place and unamended even as the organization around it changed
in terms of the working hour arrangements of a large proportion of the Force-that is, the
compressed work week. Indeed, the C.W.W. pay "problem" is but one of several aspects
which could be considered anomalous: not only are C.W.W. officers either paid for hours
not worked or paid a slightly higher hourly rate than non-C.W.W. people (depending on
how one looks at it), but in fact all staff actually receive slightly more in most years than
their salary as set out in the collective agreement.
Given the clarity of the intent in the various collective-agreement provisions and
the long-standing practice of the parties, this is a problem (assuming it is a problem, and
not, as the Association argued, simply what the parties intended all along) that cannot be
solved at rights arbitration. Fundamentally, since the elimination of the C.W.W.
"problem" requires amendments or additions to the collective agreement, the parties are
going to have to it work it out for themselves in negotiations. Failing that, if it has to be
solved by an arbitrator, then it must be in the context of interest arbitration. However, it
must be said that, given that the situation is a product of a complex and long-standing set
of factors, and also taking into account the large number of different options for solving it
(many, no doubt, with complex and subtle implications), it goes without saying that it
would be far more preferable for the parties to do it for themselves.
In any event, for all of the above reasons, the grievance must succeed. The Board
violated the collective agreement when it unilaterally altered the audit base for 1996 fiom
2080 to 2096. The Board is directed to restore the lieu-time banks of all officers to what
they would have been had the 1996 audit been carried out using a base of 2080. The
Board is hrther directed to continue to use an audit base of 2080 until the parties jointly
agree on some other base or redesign their pay model or an interest arbitrator awards a
change to the pay and/or audit processes.
I will remain seised in the event the parties have any difficulties implementing any
aspect of this award. It thus only remains for me to thank spokesmen for both parties for
their very thorough and helphl presentations on this complicated issue.
Dated at Kingston, this 20' day of January, 1998.
R. L. Jackson