OPAC 80-014 IN THE MATTER OF THE POLICE ACT, R.S.O. 1970 c. 351 AS AMENDED AND IN THE MATTER OF AN ARBITRATION B E T W E E N : THE BOARD OF COMMISSIONERS OF POLICE FOR THE CITY OF STRATFORD (hereinafter referred to as the "Board" - and - STRATFORD POLICE ASSOCIATION (hereinafter referred to as the "Association") ARBITRATOR: B. Welling APPEARING FOR THE BOARD: J. Skinner APPEARING FOR THE ASSOCIATION: R. Morrow A HEARING IN THIS MATTER WAS HELD IN STRATFORD, ONTARIO, ON 25 AUGUST 1980
AWARD "' This grievance arose out of the denial of "service pay" to police officers Brown, Bunting, and Hoy of the Stratford Police Force. A hearing in this matter was held in Stratford, Qntario> on 25'August 1980 at which time the parties presented evidence and argument. No objections were raised to the jurisdiction of the arbitrator or that the dispute could be subject to arbitration, The crux of the matter can be simply stated. The Collective Agreement provides that an extra amount of pay, caller' service pay, may be paid to police officers in recognition of past service with other police forces. The three grievors in this case applied for service pay on this basis and their applications were denied. The grievors claim that their past service records, which are not disputed by the Board of Police Commissioners, compelled the payment of the service pay increment. They further claim that the failure to award this pay was discriminatory, which would also be a violation of the Collective Agreement. The Board of Police Commissioners responds that while they clearly have the power to award service pay for past service with other police forces, they have no obligation to do so and that the Commissioners are entitled to differentiate between individual officers in using this power. This is, then, a dispute as to whether the wording of the Collective Agreement is mandatory or permissive.
The parties submitted an agreed statement of facts which greatly assisted in clarifying the issues. This reads as follows: The agreement between the Board of Commissioners of Police for the City of Stratford and the Stratford Police Association dated June 13, 1968 but effective commencing January 1st, 1968, contained provisions relating to service pay as follows: 8:04 The members of the Stratford Police Department shall receive service pay at the rate of $6.00 per month for each five years of service. 8:05 If a member leaves the service of the Department, he is to be paid service pay on a pro rata basis, an amount equal to his entitlement for that year. 8:06 In the event of death, Board to pay service pay entitlement earned to the estate. Although these provisions probably appeared in earlier agreements, no attempt has been made to trace the history of the section prior to 1968. A further agreement was entered into dated July 3rd, 1969, to be effective from January 1st, 1969. The service pay provisions were amended so that the clause in the agreement read as follows: 8:04 The members of the Stratford Police Department shall receive service pay at the rate of $6.00 per month for each five years of service. The Board may approve payment of service pay to members of the Department for years of service with other Police Departments prior to joining the Stratford Police Department. The pay-out of service pay for prior service will have no effect on seniority. 8:05 If a member leaves the service of the Department, he is to be paid service pay on a pro rata basis, an amount equal to his entitlement for that year. 8:06 In the event of death, Board to pay service pay entitlement earned to the estate.
The question of service pay was part of the negotiations leading up to the 1969 contract being entered' into. Although the agreement was dated July 3rd, 1969, it was given retroactive effect to January 1st, 1969. The agreement was accepted by the Board of Commissioners of Police for the City of Stratford at a meeting July 3rd, 1969. At the same meeting, the question of service pay was dealt with in the minutes as follows: 4. Re: Section 8:04 of the agreement with the Association - Service pay for officers with previous experience. A motion was made by Judge Ehgoetz, seconded by Judge Lang, that this Commission agrees that the following officers receive service pay on the basis of previous Police experience prior to joining the Stratford Police Force as follows: Cst. R. Harefeld - 8 years; Cst. A. Large - 20 years; Cst. R. Parker - 10 years; Cst. D. Pommer - 12 years retroactive to January 1st, 1969. Carried. The next occasion on which service pay appears to be dealt with in the minutes was for a meeting on November 20, 1969. The relevant exerpt was as follows: Letters from S. Payne and R. Coe, regarding application for service pay for prior Police service, were read. A motion was made by Judge Ehgoetz, seconded by Judge Lang, that the following Officers receive service pay on the basis of previous Police Experience prior to joining the Stratford Police Department: S. Payne - 1 year; R. Coe - 3 years retroactive to January 1st, 1969. Carried. With respect to the Officers named above, the following were the years when they commenced employment as Police Officers in Stratford, their prior Police service, and an indication of the level at which they started with the Stratford Police Department:
5. NAME DATE STARTED PRIOR POLICE SERVICE STARTED AS Richard Coe Ross Parker Albert Large Donald Pommer Ross Harefeld Scott Payne 1962 1964 1967 1967 1967 3 years 10 years 20 years 12 years 8 years 1 year Probationary 2nd Class 1st Class 1st Class 2nd Class Probationary Between 1969 and 1973, no other service pay was awarded on the basis of prior Police service as no ex- Police Officers joined the Force during that period. In 1973 and 1974, the following Officers joined the Stratford Police Department, having prior Police Service: NAME DATE STARTED PRIOR POLICE SERVICE STARTED AS Larry Stacey John Balmer David Mills William Appel Harold Vousden 1973 1973 1974 1974 1974 5 years 6 months 6 years 1 year 1 year 1st Class 3rd Class 1st Class 3rd Class 3rd Class Service pay was not awarded by the Department to any of the above-mentioned Officers with respect to any Police service prior to joining the Stratford Police Department. There is no reference in the minutes to any application ever being made by them or on their behalf for service pay based on prior service. Cst. Vousden resigned prior to having 5 years total Police service in any event. On December 8, 1977, service pay was approved for John Roper who started with the Department in 1976 on the basis of seven years' prior Police service. Cst. Roper joined the Department as a Police Officer as a Probationary Constable at a salary of $9,899.59 (the Third Class Constable rate at that time was $14,759.13). On February 1st, 1979, service pay was approved for Peter Snell who started with the Department in 1976 with four years, seven months' prior Police service. Cst. Snell started with the Department as a Probationary Constable at a salary of $9,899.59 (the Third Class Constable rate at that time was $14,759.13).
Csts. Bunting and Brown (who are Grievors in these proceedings) had applied for service pay in 1978 at the same time as Cst. Snell, but service pay was not granted to them at that time. A further request was made by Csts. Bunting, Brown and Hoy in 1979, but the request for service pay was not granted at that time and this grievance arises out of that last decision. Cst. Bunting joined the Stratford Police Department in 1976 having two years' two months' prior Police service. He started as a Third Class Constable at a salary of $14,759.13 (the Probationary Constable salary would have been $9,899.59). Cst. Albert Brown commenced service with the Stratford Police Department in 1977, having 12 years' seven months' prior Police service, as a Third Class Constable earning $15,939.87 (Probationary Constable salary was $10,691.55). Cst. Randy Hoy joined the Stratford Police Department in 1978 having three years' eight months' prior Police service as a Third Class Constable earning $17,055.66 (Probationary Constable salary was $11,439.96). Under the collective-agreement, a Probationary Constable would receve an increase in salary after six months' service and would be promoted to Third Class Constable after one year. There would be a further increase in salary as a Third Class Constable after eighteen months' service and a promotion to Second Class Constable after two years' service. A promotion to First Class Constable would usually follow three years after joining the Police Force. - End of agreed statement of facts - 6. In sum, the parties are in agreement that all who applied for service pay in the past on the basis of service with other police forces had their requests granted. Constable Brown, who had twelve years and two month s ' prior service with the Essex Police Force in the United Kingdom and five months of service with the Metropolitan Toronto Police Force had his request denied.. Constable Bunting who had two years' and two months' prior
7. service with the York Regional Police had his request denied Constable Hoy who had three years' and eight months' prior service with the Ontario Provincial Police had his request denied. Constable Brown was called as a witness by the Association and essentially confirmed certain details of the agreed statement of facts. Constable Bunting was also called as a witness. He further confirmed some of the agreed facts and, in addition, gave some particulars of his own case. It appears that Constable Bunting was required to travel out of town several times during his first year of appointment in Stratford because of Court cases held over from his work in Toronto. He had requested some assistance from his superiors in Stratford in order that he could avoid out-of-pocket expenses in attending these hearings, but all that was done was to permit him to use his statutory holiday time for these days. There appears to have been some misunderstanding as to whether the Police Chief had suggested to him that he would be awarded service pay, but the misunderstanding seems clearly to have resulted from a break down in communication between the two. Chief of Police MacDonald, who was also called as a witness by the Association, did not recall having made such a commitment to Constable Bunting. As both witnesses were entirely forthright and clear in their evidence, I have no doubt that both were giving the facts as accurately as they could recall them. It therefore seems doubtful that any special consideration was promised to Constable Bunting, even though he may have mistakenly got that impression from his conversations with the Chief of Police.
The Association's case is that Article 8:0 4 8. (set out on p. 3) of the Collective Agreement gives the Board power to approve payment of service pay in these cases and that it gives the power in such a way that it is unclear whether the Commissioners are left» with any discretion in exercising the power. There is well established authority for the proposition that where the Collective Agreement is unclear, it may be interpreted by reference to past practice. past practice in this case, according to the Association, was to award service pay on the basis of prior service with other police forces to all police officers who requested it. The To deny the service pay in this case would be a breach of the mandatory provisions of Article 8:04 and also of Article 3:02 which states: The Board and the Association agree that there will be no discrimination, interference, restraint or coercion exercised or practiced by the parties or their representatives against members of the Force, or membership in the Association. (Emphasis added). The association also submitted in evidence a recent Ontario Divisional Court case, Beauchamp v. Espinola, released 27 June 1980 and not yet reported. This case involvad the dismissal of a Police Constable without a hearing and although it does include some comments regarding "fair play" it is clearly not applicable to this case. Mr. Skinner, representing the Police Commissioners, interpreted the facts in quite another light. He argued that Article 8:04 of the Collective Agreement is entirely clear on its terms and is permissive not mandatory. He further argued that the
denial of.a request for service pay in this case was not discriminatory as the evidence of past practice would support the conclusion that the Commissioners differentiated between the requests for service pay on the basis of the salary levels at which some individuals started with the Force and on the basis of familiarity with the past work of certain other individuals. Mr. Skinner set out the classic dilemma, usually found in statutory interpretation, involving the words "may" and "shall", As he conceded, the word "may" sometimes is interpreted as mandatory, although it ordinarily is taken to be permissive. He sought to establish that it was permissive in Article 8:04 by two methods. First, he noted the fact that Article 8:04 was clarified in 1968 and the word "may" was used to allow for payments of service pay in recognition of past service with other police departments, whereas the word "shall" was used in reference to service pay for years of service with the Stratford Police. Second, he pointed out other other sections in the Collective Agreement, Article 20:01 and 20:02; 22:03 and 24:01, in which "shall" and "may" were used. His conclusion was that the intent of the Collective Agreement was clear: mandatory is indicated by use of the word "shall"; discretionary powers are given by use of the word "may". I think Mr. Skinner is correct on this point. Article 8:04 clearly requires the Police Commissioners to pay service pay for each 5 years of service with the Stratford Police Force. word "shall" is used to give them this power and obligation. By The
' 10. contrast, the word "may" is used in giving the Commissioners power to award service pay for past service with other Police Forces. This is not mandatory. The Board has no obligation to award service pay on this basis in particular situations. Their only obligation is to decide whether or not to award the service pay without breaching any other section of the Collective Agreement. Thus, provided they do not act in a discriminatory fashion in contravention of Article 3:02, they are free to differentiate between various requests. In this regard Mr. Skinner's review of the facts suggested a past practice of distinguishing between various requests on a non-discriminatory basis. It must be kept in mind that the past practice here is based on a relatively small number of cases. According to the agreed statement of facts service pay for past service with other police forces has been granted to only eight people. Four of them, Richard Coe, Scott Payne, John Roper, and Peter Snell started their careers in the Stratford Force at the rank of Probationary Constable. Four others, Ross Parker, Albert Large, Donald Pommer, and Ross Harefeld began as First or Second Class Constables. According to Mr. Skinner's argument, the group that started as Probationary Constables would have begun at approximately $5,000.00 per year lower salaries than had they been appointed at the Third Class rank. It would thus be possible that the Commissioners had considered this large salary differential in determining whether to give them monetary credit
11, for their prior years of service with other police forces. In the case of the four who had been awarded service pay despite their appointment at.the higher ranks, these were Police Officers whose prior performance was well known to the Stratford Police Chief. Chief MacDonald gave evidence that he was personally familiar with the work of these four individuals prior to their appointment to the Stratford Force. This was because three of them, Constables Parker, Large and Pommer, had all been- previously employed at Sebringville, the O.P.P. Detatchment service the Stratford area, and Constable Harefeld was with the Mitchell Police Force, which was only 12 miles away. Mr. Skinner's submission of the basis of these facts was that the past performance of the Board was consistent with using their power under Article 8:04 to either compensate people appointed at a relatively low starting salary or to treat prior police experience of a nature known to be somewhat similar to the Stratford requirements in the same manner as if it had been with the Stratford Force. Thus, the Board was using its discretion in a perfectly reasonable manner and was not being discriminatory. It is not necessary to determine whether that was the method of making decisions actually employed by the Board of Commissioners as there seems no doubt that the evidence is consistent with Mr. Skinner's interpretation. No evidence was tendered as to how the Board actually had made its decisions, nor need any have been presented. It was the responsibility of the Police Association in
12. this case to show that the power was handled in a discriminatory fashion. As the evidence is no more consistent with their contention than it is with that of the Police Commissioners, the Association has failed in proving their case. In sum, the Collective Agreement gives the Commissioners power to award service pay for past service with other police forces. They are not obliged to award service pay in such situations, but may.exercise discretion in so doing. Their decisions on this issue in the past were not shown to be inconsistent with their refusal of service pay in the case of the three grievors. I should like to thank both parties for their concise and helpful submissions in this case. In particular, their ability to agree upon a statement of facts was of great assistance in bringing the hearing to a speedy conslusion. The parties are to be commended for their co-operative approach to the grievance procedure. The grievance is dismissed. 1980. DATED at London, Ontario, this 29th day of August, ' B. Welli^f/ Sole Arpijzrator.