In the Matter of an.Arbitration

between

The Hamilton-Wentworth Police Services Board

and

The Hamilton-Wentworth Police Association

(Grievance re BEAR Project Compensation)

Before: Richard L. Jackson, Sole Arbitrator

Appearances:

For the Association:

Doug Allan Administrator Rick Arnold Grievor Richard Florani Grievor Robert Hill Grievor Bob Mayea Grievor

For the Board:

Gary J. Kuzyk Counsel John Petz Inspector, Advisor

Hearings were held in this matter in Hamilton on December 15 and 18, 1998, January 12, 199, and February 24, 1999.

This is a union grievance that the Hamilton-Wentworth Regional Police Services

Board violated Article 6 (1) of the collective agreement when it rehsed to pay a premium

rate to officers assigned to a special task force in the fall of 1997. Four Police Constables

were assigned from each of the three Divisions of the Hamilton-Wentworth Regional

Police Service (hereinafter referred to as HWRPS) for temporary duty with the "BEAR"

(for "Break-and-Enters Are Reduced) Project. The Association takes the position that

their duties on this task force were investigatory in nature and, under Article 6 of the

collective agreement, should have entitled those 12 officers to be paid at the rate for the

rank that would normally carry out such duties - that is, Detective Constable. The Board

argues that they should not receive premium pay.

Article 6 is set out, in part, below.

6. (1) Where a Member has been directed by the Chief of the Hamilton- Wentwort. Regional Police Service to perform, on a temporary basis, the duties of a higher rank, the Member shall be paid the normal rate of pay of such higher rank for each period or periods that the Member performs such duties.

(2) Members assigned to perform the duties of a higher rank must be qualified by having successfully complete the promotional examinations contained in the Promotional Procedure referred to in Article 17.

Three of the officers in question were not formally qualified for Detective Constable

rank. The Board takes the position that, given Article 6 (2), the case for premium

payment for these officers is even weaker than that for the other nine.

Eight sworn officers gave evidence on behalf of the Association and two sworn

officers and one civilian members testified on behalf of the Police Services Board. I

found all eleven people honest and credible and, indeed, there was little material

disagreement between the parties on the facts of the case; the disagreement, rather, is on

the interpretation to be placed on the facts. Accordingly, rather than set out the evidence

of each of the witnesses, with a very few exceptions, I am simply going to summarize the

conclusions I have drawn from the oral and documentary evidence before me.

Facts

The "Break-and-Enters Are Reduced project (hereinafter referred to as the "BEAR

Project) was mounted in September 1997 for the purpose of targeting the specific crime

of break-and-enter. Break-and-enters had become more frequent, and the Police Service

was anticipating the normal pre-Christmas rise in the rate of break-and-enters. Four

Police Constables from each of the three Divisions were assigned to the BEAR Task

Force, under two detectives, Detectives Dan Wilson and Russell Gordon. They were to

operate in teams of six officers - each one consisting of one Detective, five Constables,

and one officer assigned to pawn-shop duties - targeting individuals and groups known to

be active in breaking and entering, and they were to operate from September 27 to

December 27, 1997. A significant element in the BEAR Project arsenal was surveillance

and, towards that end, the task force arranged for the rental of a number of civilian

vehicles, so as to be able to blend into the local scene more effectively.

As it turned out, the BEAR project was highly successfiA: in the three-month

period, it cleared 121 residential and commercial entries, arrested 138 people, laid 280

charges, recovered over $600,000 worth of stolen property, and reduced break-and-enters

by some 35%. It should be noted that, while the Project targeted break-and-enters, from

time to time its teams would encounter and deal with other forms of crime. This reflects

the fact that many of those who engage in break-and-enters do so to finance other illegal

activities.

The twelve Police Constables serving on the BEAR Project were taken from the

so-called "HEAT" units of each of the three Division. HEAT is an acronym for "High

Enforcement Action Team", which was a special concept suggested and put into effect in

March 1996. Its objective was to target crimes of particular concern to citizens (referred

to as "quality-of-life" issues, by virtue of the perception that they diminished the quality

of citizens' lives), particularly car theft, break-and-enters, prostitution, and loitering, by

augmenting the services performed by Patrol Officers. The HEAT approach was based

on developing closer ties with the community so as to gather information and improve

knowledge of problems as they arose. For example, "hot spots" for activities such as car

thefts were identified, then targeted for special projects aimed at fast resolution. The

system depended on dedicated teams supported by information received from non-HEAT

officers, resident volunteers, and uniformed officers assigned to high schools to create

two-way bonds between students and the Police Service. The objectives were not only to

deal with crime as and before it occurred, but also to work with the community to devise

solutions to conditions creating problems in the community, such as fears for safety,

damage to property, and activities that diminish the quality of life. To quote from the

"mandate" section of the original proposal for the establishment of HEAT,

These officers will provide a flexible response to problems identified in neighborhoods across the Division. Their focus must be on support for Beat Officers addressing both criminal and social issues identified by the community.

Problems will be identified, analyzed and strategies developed to resolve them. Unit objectives will include problem identification and evaluations of the effectiveness of actions.

Top priorities include: responding to quality of life issues including crime suppression, prevention and apprehension. When required they will also respond to emergencies.

In effect, then, the officers assigned to HEAT units took on a new role in the

HWRPS, in that they now performed a role that was proactive and, to some extent at

least, more investigatory than that of the typical patrol officer. Thus, in the Force's view,

HEAT units became, in effect, a new organizational entity, sitting somewhere between

the patrol and detective functions.

The HEAT officer position is profiled in the HWRPS Career Development

Program and describes the position in the following terms. It should be noted that the

Career Development Program was jointly established in 1997 by the Police Service and

the Police Association. It sets out not only position profiles for a large number of

"career-development positions", but detailed provisions for filling such positions. It is

thus very much a joint creation of the parties and an expression of their joint intent with

respect to positions and career evolution. As such, then, it is a direct supplement to the

collective agreement.

High Enforcement Action Team Officer Summary of Duties

Meet the needs of the community through special attention and flexible shift patterns. Develop, implement and evaluate enforcement and prevention actions to reduce crime and resolve quality of life problems in neighbourhoods. Reduce workload of patrol officers by developing community partnerships to attack repetitive problem areas. Liaise with other branches of the Service as well as outside agencies to solve problems. Perform any other duties of a similar nature as may be assigned from time to time by a supervisor or divisional senior officer.

Essential Qualifications: *Rank of First or Second Class Constable

Desirable Qualifications: *Oral and written communications skills that exceed expectations. *Interpersonal and sensitivity skills that exceed expectations. *Knowledge of community concerns and resources.

In understanding the context for this issue, it is helpfbl to compare the above-

noted profile for the HEAT officer with the profiles of both the Uniform Patrol Officer

and Detective Constable. These are set out below.

Uniform Patrol Officer Summary of Duties

Interact formally and informally with the community to provide information, advice and education which will be of assistance and promote public safety and awareness. Respond to assigned calls for service and perform routine patrol, confront and resolve emergency and non-emergency situations in a manner consistent with the Service mission and core values and which protects lives and property, maintains public order and provides assistance. Enforce laws, investigate offences and when appropriate, arrest offenders, lay informations and prepare cases for court.

Prepare and submit timely and complete verbal and written reports concerning investigations and Service activities. Actively identify problems in the community, prepare reports which encompass multiple solutions, take an active role in resloving and submitting regular progress reports.

Essential Qualifications: *Rank of Constable. *Knowledge of procedural and legal guidelines governing the activities of police officers.

Desirable Qualifications: *Oral and written communications skills that exceed expectations. *Interpersonal and sensitivity skills that exceed expectations. *Awareness of and commitment to the principles of problem-oriented and community- based policing. *Demonstrated commitment to physical fitness.

Criminal Investigations Branch Investigator

Summary of Duties

Conduct investigations, arrest offenders, and prepare cases for court in relation to primarily serious criminal offences, other offences, missing persons, sudden deaths, and other incidents as assigned. Supervise the activities of other officers at crime scenes and in relation to assigned investigations.

Essential Qualifications: *Rank of Qualified First class Constable. *Court preparation skills that exceed expectations.

Desirable Qualifications: *Training or experience that demonstrates interest, knowledge and competency with investigate principles and techniques and time- management and organizational skills. *Proven ability to work productively without

direct supervision

Prior to the advent of the HEAT concept, when patrol officers were seconded or

assigned to special projects which targeted specifics types of crime, such as break-and-

enters, they would be paid the 8% premium rate, the rationale being that, in effect, they

were carrying out the duties of Detective Constables. Indeed, there was just such a

break-and-enter task force in 1994, and the Constables assigned to it received the 8%

premium. With the advent of HEAT, however, this changed. The HEAT teams'

It was intended, in other words, that the two detectives would do the real detective work,

while the twelve Constables would, in effect, merely execute their directions (I put this in

stronger terms than did the Board, perhaps stronger than it deserves, simply in order to

explain it clearly). To put it in slightly different terms, the HEAT officers attached to the

BEAR Project would not perform the role typical of a Detective Constable - that is, as

partner of another detective (with the rank of Detective) - but as a subordinate of a

Detective; they would act less as independent investigators and more as assistants to the

Detectives in charge of the teams. In other words, then, according to the Police Service

Board's intent, the HEAT officers would not be hnctioning in what could legitimately be

considered an investigatory role - at least to the extent that they would not be responsible

for investigations.

It did not work out that way. The evidence - from both Association and Board

witnesses - was completely consistent that the Constables assigned to the BEAR Project

did engage in investigatory work and, in the words of Detective Russell Gordon, one of

the two officers in charge of the Project, they "took the investigations from start to

finish." All of this evidence also led to the conclusion that this was equally true for the

responsibilities embraced both proactive and investigatory elements and, from the

perspective of police Management, in effect, a new organizational "entity" had been

created which now sat between patrol officers and detectives. When HEAT officers were

assigned to a special task force on residential break-and-enters, in September 1996, they

did not receive the 8% premium.

It is clear that the Association had some misgivings about the nature of the HEAT

officers' duties and responsibilities while serving on this task force - namely, that they

were required to do a good deal of investigatory work, without either much in the way of

supervision or the 8% premium. These concerns were brought to the attention of police

management, discussion took place, and no grievance was filed. However, these

concerns informed the setting up of the BEAR project and, in the words, of Inspector

John Petz, who drafted the proposal for the BEAR Project,

The two detectives will act as supervisors and lead investigators to their units made up of five HEAT officers each. They will direct the day-to-day activities of their subordinates ensuring that all aspects of the investigations are complete.

three officers not formally "qualified" for Detective Constable by virtue of not having

written the Sergeant's exam.

There were, essentially, two reasons for this. First, the volume of break-and-

enters with which the BEAR Project had to cope was so heavy that the original

"protocol" (by which the real detective work would only be done by Detectives Wilson

and Gordon) simply broke down; the HEAT officers had to conduct their own

investigations - in the words of Detective Gordon, "from start to finish." Second, the

evidence suggested that the culture of the HWRPS is such that responsibility tends to be

somewhat decentralized, with the result that Constables generally take on perhaps a

higher level than they might in other forces. Given that the HEAT unit contained some

of the best Constables on the Force, it is not surprising that they would reflect this

element of the HWRPS culture and readily rise to the challenge by taking on completely

responsibility for B and E investigations while on the BEAR Project. Whatever the

reasons, however, there is no question that that is what they did.

Award

Since this case turns on Article 6, the operative phrase of which is "duties of a higher

rank", it is important to look to at the meaning both of "duties" and of "duties of a higher

rank". The word "duties", as it is used in Article 6, I take to mean as it is defined in

Webster 'Ninth New College Dictionary, as meaning, "obligatory tasks, conduct, service

or fbnctions that arise from one's position" - or, to put it in slightly shorter form, the

necessary tasks or fbnctions of a position.

The higher rank in question, of course, is that of Detective Constable, of which

the Career Development Program lists provision for 44 positions, spread amongst the

three divisional detective ofices (collectively, the "Criminal Investigation Branch") and

seven more specialized offices, such as forensics, surveillance, vice and drugs, street

crimes, and so on. It is not easy to capture in a phrase or two the essence of any complex

position such as that occupied by Detective Constables; but, given the issue before us in

this case, this nevertheless has to be done. If one looks at the eight Career-Development

profiles or descriptions of Detective Constables working in the CDB offices and seven

specialized detective offices, while the particular focus and subject of the positions vary

as a function of the needs and peculiarities of differing detective "jurisdictions", there is

nevertheless a common core function - namely, investigation. Indeed, it can be no

accident that the same noun is found in the position titles of all eight profiles:

"investigator". This simply reflects a fundamental organizational reality of police work;

in the Hamilton-Wentworth Regional Police Service, as well as most other police

services, patrol officers patrol and respond to calls and emergencies, while detectives

conduct follow-up investigations. This is not to suggest that patrol officers never

investigate, nor that detectives never respond; but it is to suggest that the fundamental

duty (in the sense of the necessary tasks or functions) of a detective is to investigate.

This hndamental reality is not changed, although it may be masked somewhat by the fact

that HEAT officers appear, as suggested by Inspector Petz in his evidence, to lie

somewhere between patrol officers and detectives in terms of these core functions.

It is abundantly clear from the evidence that the officers assigned to the BEAR

task force regularly performed duties normally carried out by Detective Constables - that

is, follow-up investigation - at least as far as the crime of break-and-enter is concerned;

all of the Association witnesses were consistent on this point and, as a matter of fact,

Inspector Petz's evidence confirmed it. This is true for both the five regular officers as

well as the pawn officer on each BEAR team. While it is clear that the Force's intent

was that these twelve Constables would not operate as detectives but, rather, simply carry

out specific tasks as directed by Detectives Wilson and Gordon, it is evident from the

testimony of all three groups - the Constables themselves, Detective Wilson, and

Inspector Petz - that, as things actually worked out, they operated in a much more

independent mode. Indeed, the testimony is so consistent that it can be stated that there is

really no material dispute on this point. There is no question, then, that these twelve

Constables performed the duties of Detective Constables, at least as far as the crime of

break-and-enter was concerned.

The Board did not really contest this, but took the position, however, that the

HEAT officers are still not entitled to the 8% premium pay, by virtue of the following.

First, break-and-enters are only one of a wide variety of crimes investigated by Detective

Constables and, indeed, that it is not one of the more serious. Thus, these officers did not

really take on the real duties of that rank, in the sense that it is understood in the culture

and law of the Hamilton-Wentworth Regional Police Service. Second, it argued that, for

the Association's position to prevail, it must establish that the rank of Detective

Constable somehow has "proprietorship" over investigations. Third, it argued that

officers must be expressly "directed" to take on such duties whereas, in this case, that

never happened: they were directed to join the BEAR project and - assuming I conclude

they carried out the duties of Detective Constable - therefore ended up doing so on a de

facto rather than de jure basis. And, fourth, the Board argued that, even if I find for the

Association on all of the foregoing issues, the creation and existence of the HEAT teams

now protects the Police Service from having to pay the premium rate in this situation. In

all of this, finally, it pointed out that the onus lies with the Association.

Given the consistency of the evidence on this matter, this case turns on what these

facts add up to in the light of the wording of the collective agreement, taken in the

context of both the relevant arbitral jurisprudence and the culture and practice of the

Hamilton-Wentworth Regional 'Police Service. It seems appropriate to start with the

basics of the "legal" context. As noted by Palmer and Palmer,

One of the main purposes of a wage classification system, particularly if supplemented by a specific temporary assignment provision as here, is to create uniformity and equality in payments for the same kind of work.

The general rule articulated in the jurisprudence is that management is free to make any

adjustments in classifications, either temporary or permanent, provided of course that

they do not contravene the collective agreement. Further, management can unilaterally

establish the rates of pay for and within the different classifications as long as the

requirements of the agreement are respected. When a grievor claims entitlement to

reclassification or higher wages, an arbitrator will conduct what amounts to a job

evaluation, comparing tasks and classifications to determine if the rates of pay are

sufficiently different to warrant an amendment. Among the considerations will be

"whether it can be said that the assignment was a 'material', 'substantial', 'peripheral', or

'incidental' part of the grievor's work".

Most of the case law deals with disputes over the proper classification of an

employee's normal duties or occasional (perhaps even routine) addition of some duties of

a higher classification, or over pay during periods of acting rank. In Re Ontario Hydro

and Canadian Union of Public Employees, Local 1000 (1 1 L.A.C. (3d) 404, Shime

1983), arbitrator Owen Shime noted that:

. . .work which is normally incidental or part of an employee's usual work should not be compensated at a higher rate.. . .The bargain that has been struck is that employees will perform a certain range of tasks for a fixed rate. Why then should the employee be required to perform at a higher level for the same fixed rate?

The cases have proceeded on the basis that an employee will receive a higher rate only if the employee performs in a higher-rate classification. Generally, arbitrators have honoured the classifications and wage rates negotiated by the parties.

This instant case is not a question of reclassification or of assignment to acting

rank. Rather, it is a claim of special, fbll-time, but temporary assignment to a situation in

which, it is argued, the grievors camed out the duties of a type normally performed by

officers of higher rank. As noted above, the evidence demonstrates conclusively that is

what they did - at least with respect to one type of crime, break-and-enters.

What, then, of the Board's argument that, while officers really performing the

duties of Detective Constables - that is, those entitled to the 8% premium - investigate all

manner of crimes, many of which are more serious than break-and-enters, the officers

serving on the BEAR Project dealt only with the latter? In my view, that does not

substantially weaken the Association's claim in this case. Many police services,

including this one, have various specialty detective units directed at specific offenses -

for example, fraud, child abuse, vice and drugs, and so on. The officers in those offices

are no less "Detectives", and no less entitled to the Detective Constable rate than those in

the Divisional Detective Offices, even though they don't deal with the full array of

crimes. The critical test, given the language of the collective agreement, is in the duties -

that is, are they the duties, in the sense of necessary tasks and functions, of a Detective

Constable? It does not matter that they did not investigate other forms of crime; in fact,

however, they did investigate other forms of crime at least from time to time, since the

evidence also made clear that break-and-enters are often associated with other forms of

crime, which break-and-enter officers more or less stumble upon. Given the wording of

Article 6, taken in the context of the arbitral jurisprudence, the test is this: Were the

necessary tasks andfunctions of these Constables those of investigators? My answer to

that question is that they were. Viewed from an arbitral jurisprudential point of view and

put in terms of the fbndamental wage-for-effort bargain, Arbitrator Shime's comments in

Re Ontario Hydro and Canadian Union of Public Employees, Local 1000 are germane to

this situation.

It is too narrow and inflexible a position to require an employee to bring himself or herself squarely within a higher-rate classification once the employee can demonstrate that he or she has performed a set of task extending beyond (but not merely incidental to) his or her normal classification. The employer should not be entitled to a benefit or work which is clearly beyond the lower-rated classification.

Similarly, in Re DuPont of Canada Ltd and Canadian Chemical Workers, Local

28 (,24 L.A.C. (2d) 121, Kennedy 1979), the question turned on whether an employee

filling in on a relief basis at a higher classification was performing duties comprising the

central core of the higher classification. Arbitrator Kennedy quoted Arbitrator Burkett's

comments in Re Canada Valve Ltd. and International molders and Allied Workers Union

(16 L.A.C. (2d) 258) as follows:

The burden is one which requires a grievor to establish that the work in question is beyond his classification, that it falls within the "central core" of the higher classification and that he has the skill and "ability" to perform it.

Given that the "central core" of the duties of those positions filled by Detective Constables in the

HWRPS is investigation, there can be no question that this test is met. Accordingly, then, I find

that the twelve HEAT officers assigned to the BEAR Project performed the duties of a higher

rank.

Having found that the grievors performed the duties of a higher rank, let me now deal

with the Board's position that, in order to be entitled to the 8% premium, they must have been

explicitly ordered to assume those duties and not just have assumed them in a de facto way. In

other words, having found that they performed the duties of a higher rank, can it also be said that

they were directed by the Chief of Police toperform those duties? The operative part of Article 6

is:

Where a Member has been directed by the Chief of the Hamilton-Wentworth Regional Police Service to perform, on a temporary basis, the duties of a higher rank, the Member shall be paid.. .

This Board argument is an interesting one, but it cannot carry the day. There is no

question, on the basis of the evidence, that the twelve HEAT officers were directed by

competent authority - which, in the military-like culture of a police force, is taken to

mean by the Chief of Police him or herself - to participate in the BEAR project. The

BEAR project, as it actually turned out, required them to assume the duties of Detective

Constable. The syllogism is complete: the grievors were directed by the Chief to perform

duties of a higher rank. That that was not necessarily what the Chief intended does not

change the fact that that is what the Chief directed, as became clear after the fact. To find

otherwise would open the members to being undercompensated by virtue of the fact that

a project did not play out in exactly the terms management had predicted, a proposition

which would be impossible to justify in terms of equity, law, or common sense. Surely,

too, it must be incumbent upon management to know, and to take responsibility for, the

actual level of the duties which it orders its officers to undertake. Thus, I find that these

officers were directed by the Chief of Police to perform, on a temporary basis, the duties

of a higher rank.

Finally, what of the Board's position that, because of the advent and existence of

the HEAT units, even if all of the foregoing issues are decided in favour of the

Association, the Board is still not obligated to compensate the HEAT officers serving on

BEAR with the premium 8% rate? This argument rests on, and draws on, several of the

purposes behind the formation of the HEAT units:

That HEAT provided a flexible way of dealing with some of the less-serious

forms of crime which nevertheless had a significant impact on citizens' perceived

quality of life - such as break-and-enters.

That HEAT provided promising young officers with excellent career-development

opportunities, in the sense of the experience they would gain.

That HEAT was, in effect, a new position level or "band in the structure and

organization of the HWRPS that sat somewhere between the patrol and detective

branches, both in terms of the character of the work performed and position in the

organization.

That HEAT was designed to assist patrol officers by lessening their work load.

With great respect, and without absolutely no intent to reflect anything negative about the

HEAT concept (which, on the basis of the evidence before me, seems to have been a real

success), none of these arguments goes to the essential issue in this case, which is simply

this: the parties must adhere to the collective agreement, and Article 6 of the collective

agreement requires that,

Where a Member has been directed to perform.. . the duties of a higher rank, the Member shall be paid the normal rate of pay of such higher rank.. .

The fact that HEAT was a flexible response to certain types of crimes, that it assisted

"beat officers7' by lessening their work load (although the evidence seemed to suggest

that, in reality, it helped the CIB as much or more than it did beat officers), that it was

excellent career-developmental experience for the officers involved, or that HEAT

oficers had hnctions which differed from normal patrol duties - all appear on the

evidence to be true, but do not detract in any way from this fbndamental reality of the

requirement imposed on the Force by Article 6.

Finally, what of the Board's argument that, even if I find in favour of the nine

HEAT officers who were "qualified" for Detective-Constable rank by virtue of having

written and passed on the Ontario Police College Sergeant's exam, I cannot so find for

the three officers who had not written that exam? The Board argues that the requirement

of Article 6 is explicit and that, on its face, it precludes me from finding for the three

officers not formally qualified. The Association argues that, at least as far as arbitral

jurisprudence is concerned - R. L. Kennedy's Re DuPont Ltd. and Canadian Chemical

Workers being a case in point - it is not necessary for the three grievors to have all of the

formal qualifications for the higher-level position, only qualifications to carry out the

essential core duties.

This is an interesting dilemma in one sense, because it is possible to argue that, if

the Association wants to "live7' by Article 6, it must be prepared to "die" by it as well.

Under Article 6 (I), nine officers are entitled to the premium pay but Article 6(2) is clear

that an officer assigned to the duties of a higher rank must not only be formally qualified

(as in DuPont), but must be qualified "by having successfblly completed the promotional

examinations.. . .in Article 17" and three of the officers were no so qualified. On the

other hand, it was the HWR Police Service which, in effect, violated Article 6 (2) by

assigning those three officers to the BEAR Project. All of the evidence with respect to

their participation was to the effect that they performed essentially the same duties as the

other nine officers, and without any higher level of support.

Having decided that their nine colleagues are entitled to premium pay, it would be

perverse and unfair to deny these three officers the same premium because management,

in effect, violated Article 6 (2), given the consistent evidence that they also did, in fact,

perform the duties of a higher rank. I decline to do so.

Accordingly, then, it is my award that the Hamilton-Wentworth Regional Police

Services Board violated the collective agreement by not compensating these twelve

officers at the normal rate for the rank of Detective Constable. The Board is therefore

ordered to so compensate them for the time they spent on the BEAR Project.

I remain seised in the event the parties have any difficulty with the

implementation of this award.

Dated at Kingston, this ~ 3 ' ~ of May, 1999.

R. L. ckson lYL