OPAC 82-002 IN THE MATTER OF AN ARBITRATION PURSUANT TO THE POLICE ACT, R.S.O. 1980, c.381 B E T W E E N : THE TOWNSHIP OF INNISFIL POLICE ASSOCIATION FOR THE TOWNSHIP OF INNISFIL POLICE FORCE -and- Applicant THE BOARD OF POLICE COMMISSIONERS FOR THE TOWNSHIP OF INNISFIL Respondent THE HONOURABLE MAYER LERNER, Q.C., ARBITRATOR. G. Teskey, Q.C. for the applicant Association. Kevin Carroll for the respondent Board of Police Commissioners. Heard; Tuesday, December 15, 1981 These proceedings are pursuant to an appointment Issued November 26, 1981, by the Honourable Roy R. McMurtry, Q.C., directing me to arbitrate the differences between the
-2- parties stated as follows. The issue is whether two officers, Aurel Dorion and William Money, should be classified as detectives and returned to their detective duties pursuant to such classification. At the opening of the hearing the parties formally agreed that: (1) My appointment conformed with The Pol ice Act. (2) The time limits imposed by the Act had been complied with. (3) I had jurisdiction to arbitrate the matter in dispute. The aggrieved, William Money, now 34 years of age, joined the Innisfil Township Police Force on July 26, 1971, as a police constable and, in due course, became a Class 1 constable. Some time in the spring of 1976, while still employed, his duties were changed to that of an investigating member of the Force. In this capacity he carried out investigative duties of matters alleged to involve crime and the necessary follow-up thereto. For the next five years he was a "plainclothes" officer
-3- carrying on his duties in civilian clothes as distinguished from a constable in uniform and was referred to as a "detective". During that period he did not carry out constable's patrol duties which would include, among other things, traffic law offences; he would only respond to requests for police patrol assistance or duties if uniformed constables were unavailable. As a matter of record in that entire period he was only involved in the usual duties of a uniformed police constable on two occasions, which, incidentally, related to traffic law enforcement. In the course of his plainclothes duties, on one occasion he had been in charge of the investigation of an attempted murder alleged to have occurred while he was off duty; on another occasion while on duty an alleged kidnapping originally assigned to a uniformed constable was turned over to him by the sergeant on duty when the nature of the occurrence was established and, on a further occasion, he was instructed to assist in the investigation of an armed robbery. Money was never specifically instructed or advised that he was being promoted to the classification of a detective. During all of this period he received no salary different from that of a Class 1 uniformed constable, nor did he, according to the evidence,
-4- ever claim a salary different from that paid to such constables. The other aggrieved, Aurel Dorion, at the time of this hearing, was 52, with 23 years of service. He had worked as a plainclothes officer for three months in 1971 or 1972 and then had reverted to working as a uniformed constable. In January, 1980, he again became a plainclothes officer performing the same duties as Money and working as the other member of the plainclothes members of the Force. He was present during Money's testimony and, without going into any detail, confirmed his evidence. I assume that his evidence so tendered was within his personal knowledge, but in any event his evidence was not challenged by the Board of Police Commissioners. It would appear from the evidence that the requirements of the duties carried out by Money and Dorion differed from those of a uniformed constable in the following specific matters: (a) the hours of duty consisted of two shifts of eight hours each, the first commencing at 8:30 a.m.,
-5- whereas uniformed constables worked one of three shifts of eight hours in each of every 24 hours, commencing at 12:00 midnight, with the second shift commencing at 8:00 a.m.; (b) (c) tours of duty for uniformed constables except non-commissioned officers were consecutive and of one week's duration; Money and Dorion were provided with an office in the police headquarters. A sign with the words, "Detective Squad Room" was affixed to the outer side of the door of the room used for their duties (see photo, Exhibit 3). It was furnished with a desk, chairs, telephone and a desk basket as a repository for incoming memoranda; (d) Money or Dorion would, upon arrival at headquarters on each day, go directly to their office; (e) they never had to take the usual daily instructions given to uniformed constables or go on daily "parade".
-6- Any investigative assignment would have been placed in the basket on the desk in the "Detective Squad Room". When they left their quarters to conduct investigations outside the premises they would leave word of their intended or expected whereabouts. Similar investigation commenced and undertaken by a uniformed constable in the course of his patrol duties would be turned over to either one of these two men if not completed before the end of the constable's shift. Where an occurrence was of a serious criminal nature, the constable on patrol would take some information and then refer the matter to Money or Dorion and the Chief, Deputy Chief, or Sergeant would put either of them in charge of that particular investigation. The respondent Board of Commissioners rested its case substantially on the evidence of Chief Constable Brown who has held that position,except for a short period, since about 1960. In January, 1981, the Innisfil Police Force was faced with the problem of increasing crime and the resulting need for accelerated "clearance". The term "clearance" included determining whether an occurrence,
7- when observed or investigated, constituted a crime and, if found to be such, then followed by the necessary processing and disposition to conviction or acquittal. In order to achieve this objective, all officer personnel were put on active patrol duty in order to improve the rate of "clearance" As a consequence, Money and Dorion were returned to wearing uniforms and carrying out patrol duties; in this way, all constables were engaged in patrol duty and investigations concurrently when such were necessary. Chief Brown stated further that during his tenure of office, some constables (officers) would be placed on plainclothes duty to give them more freedom of movement and to increase the efficiency of the force; that it was always understood that such members of the Force could be returned to uniformed constable patrol duties if, as and when necessary. During Chief Brown's approximate 21 years with this police force, the specific rank of staff sergeant, patrol sergeant or detective had never been established, although for one short period of time there had been a
corporal and also an Inspector. No.plainclothes member of the Force had ever asked for promotion to detective, patrol sergeant or other rank above that of a constable on patrol by virtue of having been on plainclothes duty. On occasions, as he testified further, some uniformed constables had been plainclothes members of the Force for more than six months and then returned to the duties of uniformed constable on patrol. -8- All members of the Force working on plainclothes duties were of equal rank with uniformed constables but with no authority over the latter. In 1980 he had asked, without success, that two more constables be taken on strength which, I infer, led to MOney and Dorion being put back in uniform. Chief Brown testified further that there were no complaints about the performance or service rendered by Money and Dorion who, as plainclothes officers, were basically investigating criminal cases; that at all pertinent times he had jurisdiction to deploy men as plainclothes or uniformed members of the Force in his discretion, and that all constable personnel were inter-
-9- changeable as plainclothes members of the Force, or uniformed constables for patrol duty, as he as Chief would from time to time determine. The pertinent employment agreement, dated August 14, 1979, Exhibit 1, was entered into between the applicant Association and the respondent Board of Commissioners and was in force from January 1, 1979, for two years, to expire on December 31, 1980, and was to continue from year to year unless terminated by notice. Supplementary and collateral to this agreement were "the Rules and Regulations for the Government of the Township of Innisfil Police Force" (Exhibit 2), hereinafter referred to as the "Regulations". The resolution of the issue is dependent upon interpretation of the terms of both documents read together in light of the manner in which they were treated in the day-to-day operation by the Board of Commissioners and the Police Association. Exhibit 1, stated at page 2, inter alia, Article 2 of the agreement, The Board agrees that it will not exercise any of the functions set out in this article in a manner inconsistent with the provisions of this agreement or The Police Act of Ontario and the Regulations thereto.
-10- It was not suggested 1n these proceedings that the agreement, Exhibit 1, and Regulations, Exhibit 2, did not comply with the provisions of The Police Act. There was no reference in the agreement (Exhibit 1) to the rank of detective. The Regulations, however, set out under the heading "Order of Rank" five categories of the division and scope of activities of all members of the Force of the Township of Innisfil. They were: 1. Chief of Police. 2. Inspector. 3. Staff Sergeants. 4. Patrol Sergeants or Corporals (not both) and Detectives. 5. Police Constables (all classes, male and female)." The pertinent agreement, Exhibit 1, which governed the relationship between the Police Force and the Board of Commissioners did not provide for an inspector, staff sergeant or patrol sergeant but only referred to one classification, that is, "sergeant". Furthermore, the rank of "Deputy Chief" was not named or designated as a rank 1n the Regulations. in counsels' submissions. This Inconsistency was not raised
-n- The working hours of constables and progression of shifts were specifically spelled out in Article 5 of the agreement, i.e. for a normal weekly period of police duty. No specific hours or the progression of shifts was spelled out for any of the other ranks. While no member of the police force was designated in the agreement as a detective, Article 12(a) and (b) of the agreement did recognize a distinction between members of the Force in uniform and those members thereof detailed to perform duties in the "plainclothes section" with respect to clothing, wherein it was stated: ARTICLE 12: (a) (b) CLOTHING All members of the Association who are detailed to perform police duties in the plainclothes section of the Force shall be paid a clothing allowance on the basis of Four Hundred ($400.00) dollars per annum twice a year in arrears. In the case of broken periods of service proportionate payments will be made in the month following the termination of plainclothes duty. In all cases, receipted bills covering purchases of civilian clothes to be used on duty must be produced and such bills must be approved for payment by the Chief of Police or his deputy. All members of the Association in uniform and in plainclothes duties shall receive a clothing cleaning allowance in the amount of Eighty-Five ($85.00) dollars per annum. All payments must be presented to the Chief of Police or his deputy.
-12- These references, in my view, contemplated that plainclothes duty, while being the type of work normally carried out by investigative officers or detectives, was to be carried out by the lowest rank in the hierarchy of the Police Force, i.e. those with the rank of Police Constables. While the establishment of the rank of detective was provided in the Regulations, it does not follow that a detective rank,as contemplated by the Regulations, was ever established in this Police Force nor can it be inferred from the activities of Mr. Money or Mr. Dorion, or officers who had preceded them in similar circumstances. No specific or active steps were ever taken by the Commission or the Association to establish the rank of detective or a detective division in the employment agreement. Notwithstanding this, some members of the Police Force with the rank of constable by the very nature of their daily activities carried out the duties normally conducted by detectives without any formal steps having been taken to create the rank of detective in the agreement, Exhibit 1.
-13- The applicant Association relied upon the Miscellaneous Regulations. In Exhibit 2, under the heading "Miscellaneous Regulations" at page 44, it is stated: Duties 1. Members of the Force shall perform the tours of duty prescribed by the Chief of Police. 2. When assigned to perform the duties of another rank, a member of the Force shall be governed by the Regulations and Orders affecting that rank. and under the heading of "Co-operation", at page 45: 8(a) In the best interests of the police service, all members of the uniformed branch, detective branch and traffic branch shall co-operate with each other. These provisions contemplated the de facto existence of three branches of service, i.e. uniformed service, detective branch and traffic branch. The Regulations are collateral to the agreement which is the governing instrument between the parties. The authority for a by-law creating regulations to assist in the efficient management, control and operation of a Police Force is found in The Police Act, section 16,
-14- which states: A Board may by by-law make regulations not inconsistent with the regulations under section 74 for the government of the Police Force, for preventing neglect or abuse, and for rendering it efficient in the discharge of its duties. Section 74(l)(d) of the Act gives the Lieutenant Governor in Council power to make regulations, (d) establishing the ranks that shall be held by members of police forces; and in subsection (2) of section 74, it is stated: Counsel Any regulation made under the authority of subsection 1 may be general or particular in its application. for the applicant Association relied on Article 17(c) and (d) of the collective agreement, Exhibit 1, wherein it is stated: (c) On promotion to, or in the noncommissioned ranks, a police officer will receive the pay of that rank, but will be on probation for a period of six (6) months, at the end of which time, on recommendation of the Chief of Police, he will either be confirmed in this rank or revert to his previous rank.
-15- (d) When a member is required to serve in an active rank higher than that which he regularly holds, he shall receive the equivalent pay for the acting rank, and automatic promotion to such acting rank after completion of six (6) months continuous service in such acting rank. Respectfully, in my view, section 17 of Exhibit 1 cannot be applied here. Constables MOney and Dorion had never been promoted to detective nor had a detective division ever been created. It is noteworthy that,while the ranks and duties were described in the Regulations for detectives, provision was also made for the rank of inspector including the duties of an inspector. Neither rank was provided or created in the governing collective agreement, Exhibit 1. As stated supra the agreement contemplated and treated officers with the rank of constable capable of doing either plainclothes or uniformed duty. The applicant Association submitted that Money and Dorion "should have been treated and called detectives with all the duties of detective, etc." and "classified as detectives and returned to their detective duties."
-16- relied on the following: In support of these submissions, the Association (1) the differences in the duties of uniformed constables and plainclothes officers; (2) the d_ facto duties performed by Money over a five-year period and Dorion for a lesser time; (3) the "Detective Squad Room" facility provided by the Board of Commissioners through its Chief Constable; (4) the rank of "detective" was recognized because the duties of detect-ive were spelled out in Regulations at pages 21 to 24 of Exhibit 2; (5) Money and Dorion carried out the duties in keeping with those of detectives and different duties from those carried out by constables in uniform. Notwithstanding these facts, it cannot be said that MOney and Dorion were required to serve in an acting
-17- rank higher than that which they ordinarily held because the agreement had not created or designated the rank of detective or created a detective division. The provision for "equivalent pay for the acting rank" likewise was of no assistance because the agreement did not provide for any rate of pay for detective duties. Lastly, the requirement for automatic promotion to the rank of detective after six months continu^ ous service in that classification has no valid support because there was no such rank created in the collective agreement. For such to be established, it would have been necessary for the Police Association and the. Board of Commissioners to have included provision for the rank of detective with corresponding salary rates applicable to such rank in the collective agreement. purpose in Article 1: The preamble of that agreement stated its The purpose of this agreement is to establish the salary, hours of work and other working conditions covered by this agreement.
-18- While 1t 1s also my view that the duties performed by Mr. Money and Mr. Dorion were quite different from those carried out by uniformed constables, neither the Association nor the Board recognized those duties as warranting the creation or recognition of the rank of detective with any distinction of rates of salary from those provided for uniformed constables. The Association cannot succeed in having Money and Dorion classified as detectives with a detective salary, where neither was provided in the collective agreement. This may seem to be inequitable because it would appear that the duties performed by members of the Force in plainclothes were somewhat different from those performed by uniformed constables during the period that Mr. Money and Mr. Dorion were so employed. It may be that when the agreement was executed the bargaining parties were of the view that all constables, uniformed or plainclothes, were interchangeable as to their duties and capable of performing the duties of uniformed or plainclothes officers during the term of any collective agreement. In the result the application of the Association
-19- must be refused in view of the clear terms of the agreement. As stated supra, the members of the Force, Messrs. Money and Dorion, cannot be classified as detectives because there is no provision for such rank in the collective agreement dated August 14, 1979, providing for such classification. I wish to take this opportunity of thanking the parties for the assistance and the fairness with which the witnesses gave their evidence and counsel made their submissions. The Honourable Mayer Lerner, Q.C, Dated: January 28, 1982.