_271) HearinaDURHAM REGION

Date of Award

Nov. 12, 1985

95'-031..IN THE MATTER OF THE POLICE ACT,R.S.O. 1980 CHAPTER 381 AS AMENDEDAND IN THE MATTER OF AN ARBITRATION

BET WEE N:THE DURHAM REGIONAL POLICE ASSOCIATION

(The Association)

- and -

THE DURHAM REGIONAL BOARD OF COMMISSIONERSOF POLICE

(The Board)

RE: 1985 Contract Bargaining

BEFORE: Peter G. BartonArbitrator

PLACE: Bowmanville, Ontario

DATE: November 4, 1985

APPEARANCES:

For the Association:

Dale AllanPhil AllenTom CameronTerry DelvesJohn Wilson

Aleksandr G. Bolotenko -

;

PresidentVice-PresidentDirectorDirectorDirectorSolicitor

For the Board:

Jon M. JenkinsWalter BeathDonald HouckR. AttersleyR. C. DowsettWilliam M. MercerJohn Kay

Chief of PolicePolice CommissionerConsultantChairman

Inspector

AWARD

On September 30, 1985 I was appointed by the Solicitor-

General, Ken Keyes, under s.32(1) of the Police Act to deal with

the 1985 uniform agreement between the parties. At the time

of the hearing five issues remained unresolved. The parties

requested that an Award be issued fairly quickly. Although I

have given the issues considerable thought, my reasons may be

a bit abbreviated.

The Durham Regional police force has a complement of

approximately 374 uniform members including staff sergeants and

five cadets. Of this number approximately 260 are first class

constables with an average age close to 40 years. The force

was set up on January 1, 1974 when the Regional Municipality

of Durham was created. At that time the various forces which

were then in existence in the area were merged and a single agreement

covered all officers. The municipality is a large one, stretching

from Thorah township on the shores of Lake Simcoe to Pickering,

Ajax, Whitby, Oshawa and Newcastle on the shores of Lake Ontario.

For the purposes of police administration, the municipality is

divided into at least five divisions with separate stations.

The courts which the officers attend in connection with their

business are all in the southern regions of the municipality.

Because of its proximity to the Metropolitan Toronto area, the.

municipality has seen a large increase in population in the last

few years as well as a significant increase in residential and

industrial development.

The factors relevant to matters of this sort have been

most recently considered by me in the 1985 Meaford award. I

will not specifically deal with them again except where one seems

of particular significance. As with most other police arbitrations,

2

the question of police-police comparability and the choice of forces

with which to compare the Durham Regional force was raised. It seems

to me comparisons to other regions which have similar problems of

administration and coverage is perhaps most apt.

I was aided at the hearing and in my resolution of the

matters by the able presentations of Dale Allan, President of the

Association and Donald Houck of Houck Associates. Thoroughly professional

briefs were filed and requests were kept to a realistic number.

The first Association request is for an Article to provide

for a survivor's allowance. The request of the Association is that

the spouse and family of an officer killed in the line of duty should

continue to receive the salary and benefits of that officer until

that spouse remarries or until her or she dies or until the time

at which the officer would have normally retired. This is a type

of top-up provision which the Association suggests would complement

Workers' Compensation, Canada Pension Plan and any OMERS benefits.

This is not a common benefit in that it appears to exist

in only one police agreement in Ontario the present provision for

insurance is two times annual salary, or approximately $60,000.

Fortunately, no officers in the Durham Region have been

killed in the line of duty. There is always a risk that this will

happen and wherever it happens it is a tragic occurrence. There

are only so many contingencies that a collective agreement can provide

for.My own view is that protection for a widowed spouse is better

obtained through insurance than through an open-ended liability

of this sort. It is open to individual officers to take some respon-

sibility for providing for contingencies, and one would hope that

they would do so. In the result I decline to grant this request.

3

The second Association request concens court attendance

on days off. The present Article 12 of the agreement provides

a four and one-half hour guarantee for appearance in court on a

day off. Should the officer be required to attend an afternoon

or evening session, each of these attendances carries an additional

four and one-half hour minimum guarantee. Court is widely defined

ln Article 12.4, and there is an option of time in lieu. The request

of the Association is that the first appearance guarantee be increased

to six hours. It appears that in Ontario approximately 48 forces

have a minimum six hour guarantee. The other regions are York,

Peel, Halton, Hamilton-Wentworth, Waterloo and Niagara. Of these

the common guarantee is four and one-half hours at straight time

which is the Durham guarantee. The exception to this seems to

be York which appears to have a six hour guarantee.

On balance, I do not think that the Durham provision

is out of line and I decline to grant the request.

The third association request is for a provision which

would pay mileage to officers required to attend court on their

days off. The reason for this request is that a number of officers

are stationed in the northern area of the municipality. On approximately

nine times each year, these officers are required to attend court

in the southern divisions where the courts are situated, off duty.

In addition to travel time for which no compensation is received,

there are certain mileage costs incurred. Clearly these expenses

cut into the minimum guarantees provided in Article 12. The request

is that if officers are required to travel off duty to court in

another division more than ten kilometers away, they receive .2SC

per kilometer.

4

The issue of obtaining witness fees and mileage from the

court itself was raised with the then Attorney-General, R. McMurtry

in 1984 and it was his position that there was no statutory require-

ment that the court itself pay these amounts.

The position of the Board is that there is only one Region,

i.e., Peel which does have a provision such as the one requested. It

also suggests that it would be more appropriate to calculate mileage

from the station from which the officers normally work than from their

homes.

I have considerable sympathy with this request. It seems

to me to be an appropriate one but the mechanics of it are not

particularly clear. In addition, I am not clear as to the approximate

cost of implementing such a request. Because of this, I feel it is

appropriate that I direct the parties to meet and try to negotiate

an appropriate provision. I remained seized of that issue should they

be unable to do so.

The final two requests of the Association are the most

significant. One relates to the provision of optional service in

the Type 3 Pension. The other relates to salaries. Because of the

significance of the principle of total compensation, the two requests

are inter-related in the sense that the question of the appropriate

salary will in part be determined by whether or not I grant the

optional service request. I will deal with that request first.

In 1974 when the municipality was set up, a number of police

forces were merged. At that time members of the Oshawa police force

were covered by OMERS Type 1 and Type 3 (early retirement) . The same

benefit was extended to the members of all of the other amalgamated

forces and thus from 1974 all service in predecessor~ forces and in

5

the Durham Regional force counts toward the OMERS Type I and Type 3.

The request of the Association is that the Type 3 benefit be extended

to cover optional service. 'Under the OMERS Type I Supplementary

Benefit Program, optional service can include both war service in

World War II or Korea and other government service, which includes

service in other police forces or in the military in a non-war period.

The mechanics of the provision of such a benefit is that basically

both the employer and the employee are required to buy up that past

service. What this means is that for each year of optional service

the employee must pay a certain percentage of the salary he or she

was then making with compound interest to the date at which the

service is purchased. If such an agreement is entered into, this

must be done within one year. This can amount to a substantial cost

to an individual employee, which the employee can amortize over fifteen

years. Should he or she reach retirement age before that date, of

course, the full amount must be paid up.

In addition to cost to the employee, the employer has certain

costs. These include the balance of the cost of accrued benefits to

date plus any future liabilities resulting from salary increases. The

employer cost also varies for each employee covered but a lump sum can

be calculated and the employer has the option of amortizing the amount

over fifteen years.

In the various regional municipalities, Peel, Halton and

Niagara have war service coverage. In Waterloo all optional service

is covered and there is a hybrid provision in Hamilton-Wentworth which

does cover war service and unbroken city or regional service. Thus

there is some optional service provided in 5 of the 7 regions and

none in Durham Region or York Region. This optional service has

6

normally been obtained as a result of negotiations although in 1979

this arbitrator granted war service to the Niagara Region.

There are other effects associated with the granting of optional

service. One is that past service can be purchased, as explained

above. The second is that the years for which past service is

bought up are counted as years of service for the purposes of early

retirement. Thus if a person is able to buy up 5 years of war

service for example, those 5 years count toward retirement and the

person is able to retire 5 years earlier than if such a purchase is

not possible.

The position of the Association is that a number of its

officers were either not covered by pensions in some of their earlier

employment or if covered, were not able to transfer those pension

benefits to the police force which they joined. In some cases they

were able to take out their own contribution, paying the usual tax,

but the employer contribution remained with their previous employers.

I was assured by Mr. Allan that none of the members for which this

request is made are in the position of sitting on deferred pensions

from previous employers. Thus, to grant the request, would not put

a person in the position of having double pension coverage. There

are approximately 72 people on the Durham Regional force with relevant

prior service. At the date of hearing 52 indicated that they wished

to purchase some or all of the prior service should it become available.

A list was filed and the Association undertook that if the request

was granted, only those persons on the list plus possibly Mr. Graham

would be allowed to take advantage of the benefit.

Early retirement for police officers is undoubtedly a useful

and necessary benefit. The problems of burnout, inefficiency, and needec

7

recruitment of younger officers have been well documented. Given

that the average age of police officers in this Region is now approx-

imately 40, it is understandable that they are turning their minds

to the question of retirement benefits.

A similar request was made in Sudbury last year. At that

time Professor McLaren denied the reques~ primarily because of the

existence of a restraint year, reasonably good sa~aries, and the

breadth of past service covered. He pointed out in that award that

a similar request was made in.Durham in 1980 and rejected.

The primary concern of the Board relates to cost and the

ripple effect. In terms of the latter concern, there a number of

senior officers covered by a separate agreement with the Board and

it is undoubted that if uniform officers obtained the benefit the

senior officers would request it. In terms of cost, for the uniform

officers alone, assuming the employees pay amortization costs of their

own benefits, the cost to the employer would be close to $90,000 a year

over 15 years or a lump sum of approximately $750,000.00. with the

addition of this benefit to the senior officer agreement, a matter

which is not within my jurisdiction, the cost would be a lump sum of

approximately $1,000.000.00.

In terms of cost to individual officers, it is clear that

as of January 1, 1985 at least, the cost can be quite high. One officer

for example who would be in a position to purchase 21 years of service,

would do so at a lump sum cost of approximately $60,000.00. The

employer cost would be $66,000.00. In all cases the employer cost

exceeds the employee cost.

It is apparent to me that the provision of this benefit

has been the.matter of considerable acrimony between the parties.

8

Indeed, the focus of negotiations this year was the optional service

benefit. I draw from this the conclusion that the Association has

made its own political decision to seek a benefit for 20% of its

members at some cost to the remaining 80%. Although OMERS offers

an option of purchase of war service only, the Association did not

request a partial Award.

As is no doubt apparent from past history, I have considerable

sympathy with requests for war service supplements. I do have some

difficulty with the theory that peace time military service can be

equated with police service from the point of view of stress and

the need for early retirement. Thus in terms of years counted towards

retirement, I have some resistance to including this time, given

that individual officers chose to change jobs. In terms of other

police service in forces other than those which became part of the

region, I am reasonably sympathetic toward crediting those years

toward retirement.

The other difficulty I have with this request is that although

the amortized cost is approximately 1/2 of 1% of salary, the employer

would be locked into that amount for 15 years. To grant the request

this year would be to depress salaries by at least that much and I

have absolute assurance that a few years down the road, that 1/2 of

1% would be forgotten and an argument would be made by the Association

for catch-up on salaries. In reality therefore, a significant cost

to the municipality is involved. Given those views, particulary the

former, I deny the Association request.

In terms of salary, the Association requests an increase

from the first class constable rate of $32,850.00 to a final 1985

rate of $35,222.00. A comparison is made to other forces in the

9

province with the strength of 200 or more. The request is a 4.2%-2.9%

split amounting to 5.7% increase. The actual increase would be 7.1%.

The Board, on the other hand, compares salaries with various regional

municipalities and suggests a 4%-1% - 1.287% increase to a final salary

of $34,950.00 with an actual increase of 6.287%. It is pointed out

that in terms of other benefits, with of course the exception of

optional service, Durham is highly competitive with forces in other

regions.

At this time both Halton and Waterloo are in the process

of arbitration. I do not know what the result in those matters will

be. I do agree that in terms of salary, a comparison with other

Regions is most appropriate and that a final salary in the range of

$35,000.00 is most fair. Looking at the increases in the various

regions, it is clear that Peel, Niagara, Hamilton-Wentworth and

York all come in just over $35,000.00. It is my award that a

percentage increase across the board of 4% as of January 1, 1985 and

2.5% compounded as of July 1, 1985 be implemented.

The parties were able to resolve a number of issues and a

list of these appears on page 12 of the Association's brief. These

agreed issues are part of this Award. I remained seized of problems

that might arise concerning implementation and particularly concerning

the issue of court mileage.

DATED AT London, Ontario

this \1- day of November, 1985.

Pete~G. BartonArbitrator