In the matter of an Interest Arbitration Pursuant to the Fire Protection and Prevention Act, 1997

Between:

AJAX PROFESSIONAL FIRE FIGHTERS ASSOCIATION Loca11092, International Association of Fire Fighters

("Union")

-AND-

CORPORATION OF THE TOWN OF AJAX

RE:

Date And Location Of Hearing:

Board of Arbitration:

Appearances:

("Employer")

The terms of the parties' collective agreement for the period January Ill 0 to December 31/12

June 14, Aug. 16, 20 II, January 30, 3I, April 17, 2012, Ajax, Ontario. Executive sessions: Dec. 9/11; June 28, July 25, 20I2 (and numerous email sessions: July 25/l2- Mar. 12/13)

Brian Etherington, Chair Jeffrey Sack, Q.C., Union Nominee Michael Riddell, Employer Nominee

Union Sean McManus, Legal Counsel Michael Pfeiffer, Advocate, IAFF Mark Somerville, President, APFF A Dave Hutchinson, Vice Pres., APFF A Aaron Burridge, Secretary, APFF A Ernie Thorne, District 1 VP, OPFF A

Employer Mark H. Mason, Legal Counsel Michelle A. Alton, Co-Counsel John Fleck, Dir. Human Resources Lorna McGrath, Mgr. Human Resources Mark Diotte, Fire Chief Michael Gamba, Dep. Fire Chief Dave Lang, Dep. Fire Chief

AWARD

I. This is an interest arbitration award under the provisions of the Fire Protection and

Prevention Act, 1997 ("the Act"). The award in this matter will complete a renewal

collective agreement between the parties effective from January I, 20 I 0 to December 31,

2012, pursuant to the Act. There are approximately 105 full-time members ofthe

bargaining unit. The Town of Ajax is part of the Durham Region, one of the fastest

growing areas of Ontario.

2. The parties met for a total of 6 days of bargaining and conciliation and also participated

in mediation during the first day of hearing on June 14, 2011. Although there were many

issues resolved by the parties in bargaining before, during and after the first day of

submissions on August 16, 2011 (which was scheduled to deal with issues other than the

24 hour shift proposals put forward by the union), several issues remained in dispute to

be resolved by this board of arbitration. At the hearing on August 16/11, despite the fact

the parties had agreed to deal only with issues other than the 24 hour shift on that date

and deal with the 24 hour shift on subsequent days of hearing, the Association requested

an interim award on its request for a trial24 hour shift and further requested a partial

final award on the merits on all other outstanding issues. These requests were spurred in

part by the Employer's indication that it would be calling expert evidence on the 24 hour

shift issue that would likely require several days of hearing. Additional hearing dates to

deal with the 24 hour shift issue were scheduled for January 30, 31 and April 17, 2012.

3. Following its consideration of the submissions made by the parties at the August 16/11

2

hearing and in subsequent written argwnent, the Board released an Interim Award on

December 16/llon the Association's requests. It declined the request for an interim

order concerning the 24 hour shift issue. It ordered the employer to implement increased

Officer differentials for the positions of Platoon Chief, Chief Training Officer, Chief Fire

Prevention Officer, and Chief Communications Officer, as agreed to by the parties at the

August 16/11 hearing, effective for the first pay period following the date of the order. It

also established that this date of implementation should be used as the effective date for

the remaining unresolved Officer differentials when those were ultimately resolved by

the board. In addition the interim order of December 16/11 ordered the parties to

implement the other items agreed to by the parties, including those items they had agreed

to at and following the August 16111 hearing. These items included interim general wage

increases in accordance with the employer's proposals in its brief for the hearing,

however noting that the Association's proposals for general wage increases remained

before the board for determination in this award. Finally, the board declined to grant the

Association's request for a partial final award on the merits on all issues remaining in

dispute other than the 24 hour shift issue, reserving the right to revisit that issue later if

necessary.

4. The issues remaining before this board for resolution in this award are: (I) Officer

differentials for the positions of Suppression Captain, Training Officer; Fire Prevention

Officer; and Fire Inspector; (2) General Wage Increases; (3) Benefits (Vision Care,

Group Insurance Accidental Death Dismemberment Plan, and Long Tenn Disability­

maximum amount); (4) Sick Notes (request that employer pay cost); (5)Article 18 LTD

3

(Employer request for language change) and (6) Association Proposal for a 24 hour shift

to be ordered for a trial period.

5. The Board orders that the renewal agreement will consist ofthe unchanged items from

the collective agreement which expired on December 31, 2009, the items agreed by the

parties themselves, as amplified by agreements reached at or prior to the hearing, which

are incorporated into this award, and the items we describe below on which submissions

were made to us by the parties. If an outstanding item listed in paragraph 4 above is not

discussed below it should be deemed to be denied and result in no changes to the

agreement.

6. The items awarded herein are effective from the date of this award, unless expressly

stated otherwise.

ISSUE 1 Officer Differentials for the positions of Suppression Captain, Training Officer; Fire Prevention Officer; and Fire Inspector

ASSOCIATION PROPOSAL

The union sought the following percentage increases to the differentials for the

outstanding officer positions:

Suppression Captain, Training Officer and Fire Prevention Officer (from 115 to 120 %);

and Fire Inspector (from 100 to 110%).

EMPLOYER POSITION

The employer position was that there should be no change to the above mentioned officer

4

differentials.

BOARD ORDER

The Board orders no change.

ISSUE 2 - General Wage Increases

UNION PROPOSAL

The union sought the following general wage increases:

January 1, 2010-3.103% $80,730.00

January 1, 2011- 3.233% $83,340.00

January 1, 2012 3.504% $86,260.00

EMPLOYER POSITION

The employer proposed the following general wage increases:

January 1, 2010 2.0% increase- $79,863.96

July 1, 2010 1.125% increase- $80,862.26 Total2010: 3.125%

January 1, 2011 2.0% increase- $82,479.50

July 1,2011 0.62% increase- $82,990.88 Total 2011: 2.62%

January 1, 2012 · 2.0% increase- $84,650.70

July 1,2012 0.25% increase- $84,862.32 Total2012: 2.25%

5

BOARD ORDER

The Board orders that the following schedule for general increases in wages be

incorporated in the collective agreement.

January 1, 2010: 3.147% increase $80,762

January 1, 2011:2.632% increase $82,888

January 1, 2011:1.5% increase $84,131

July 1, 2012: 1.48% increase $85,376

ISSUE 3- Benefits {Vision Care, Group Insurance Accidental Death Dismemberment Plan, and Long Term Disability -maximum amount)

ASSOCIATION PROPOSAL

The Association proposed the following improvements to the benefit provisions of the

agreement:

a) Increase vision care: January 1, 2010- $425.00

January 1, 2011 - $460.00

January 1, 2012-$500.00

b) Increase group insurance accidental death dismemberment plan to (two) 2X fire

annual salary with no cap.

c) Increase long term disability cap to $7,000.00

6

EMPLOYER POSITION

The employer position was opposed to all of the improvements in benefits sought by the

umon. It further submitted that if the improvements requested by the association were granted

the Board should order a new provision to require the parties to go from the existing arrangement

of the employer paying 100% of the benefit premiums to an 85/15% co/share on premiums

payable for health and dental benefits.

BOARD ORDER

The Board orders the following benefit improvements:

a) Vision care is to be increased to $450.00.

b) Group insurance accidental death dismemberment plan benefits will be

(two) 2X the fire fighter's annual salary to a maximum of$250,000.00.

c) Increase long term disability cap to $6,000.00.

The above mentioned benefit improvements will take effect 30 days following the issuing of this

award.

ISSUE 6 - Association Proposal for a 24 hour shift to be ordered for a trial period

ASSOCIATION PROPOSAL

The Association proposes moving to a 24 hour shift for suppression fire fighters on a trial

basis for a two-year period in the same manner as has been awarded in the recent Hamilton and

Cambridge firefighter awards and as was extended by the board of arbitration chaired by Kevin

Burkett in the most recent Kingston firefighter award. Ajax firefighters currently work on a four

platoon system working 1 0 hour day shifts and 14 hour night shifts. The current system is set out

7

in schedule A of the collective agreement.

The proposed 24 hour schedule would also be based on a four platoon system and would require

firefighters to work an average of 42 hours per week. The Association's proposal for the trial

period is to have Ajax firefighters work the same 24 hour shift that is currently being worked by

the Toronto, Mississauga, Kingston, Richmond Hill, Oakville, Ottawa, Peterborough, Hamilton,

Ottawa Airport, Barry and Guelph firefighters. The union submits that approximately 70% of all

firefighters in the United States work some form of the 24 hour shift. It also submitted that

approximately 75% of all firefighters in Ontario are currently working the 24 hour shift. It

further noted that approximately 34 IAFF locals were working a 24 hour shift across Canada.

The prime argument relied upon by the Association for its proposal was that of comparability

and replication, submitting that the trend in Ontario is for firefighters to move to a 24 hour shift

from the I 0 and 14 shift schedule, at first on a trial basis for a two or three-year period and then

later on a more permanent basis, either through settlement or arbitration awards. To support this

contention the Association referred to several recent arbitration awards and negotiated

settlements which included a 24 hour shift on either a trial or permanent basis. More will be said

about those later.

The association also noted that during the last round of bargaining the Corporation and the

association agreed to establish a committee of representatives to review the operation of 24-hour

shifts to determine whether they were functioning effectively and safely in other municipalities.

8

That joint committee on the 24-hour shift did in fact meet during the last collective agreement to

review the possible implementation of a 24-hour shift and presented its findings to the Fire Chief

at the end of its deliberations. However no further action was taken and the Association decided

to bring the shift issue forward in this round of bargaining. The union also pointed to an

academic study done pursuant to a request by a joint labor management committee from the City

of Toronto fire department prior to the implementation of the 24-hour shift in the City of

Toronto. It noted that this study had concluded that the 24-hour shift provided more advantages

to firefighters in terms of overall health and benefits for fire administrations when compared to

10/14 hour shift schedules. 1 The Toronto study also reported that disruptions to the human

sleep/wake cycle and circadian rhythms were minimized on the 24-hour shift as compared to a

10/14 pattern. It also noted that much greater recuperative time is made possible by the 24-hour

shift thereby avoiding the problems of persistent fatigue and sleep debt.

The Association also relied upon a follow-up study done by Dr. Glazner following the

implementation of the 24-hour shift on a pilot basis. It noted that this study also pointed to

positive results arising from the 24-hour shift and led to the recommendation to move to the 24-

hour shift on a citywide trial basis. The union also pointed to a 2005 study done by Defense

Research and Development Canada at the request of the Canadian Forces Fire Marshal which

assessed five different firefighter schedules to make a determination as to which would be the

optimum firefighter shift. While this study was based on a modeling program as opposed to an

empirical study, it did conclude that for the purpose of sustaining cognitive performance in the

1 Firefighters And Shiftwork: 24 Hour Shift Versus 10 and 14 Hour Shift, by Marco Mecozzi, Linda Glazner, DrPH,

9

face of nocturnal alarms the two optimum schedules of the five considered were the two

schedules that were based on different 24-hour shift rotations.

The Association also relied on commentary from the Fire Chiefs in Kingston and Peterborough

as to the positive effects of moving to a 24-hour shift from the 10/14 shift pattern. In addition,

the Association relied heavily upon the outcomes of recent arbitration awards in Ontario,

Alberta, New Brunswick and Massachusetts in which Association positions in favor of the 24-

hour shifts were upheld. More will be said about these awards later.

EMPLOYER POSITION

The employer was adamantly opposed to the Association's proposal for the implementation of

the 24-hour shift on any basis. It put forward several arguments in opposition.

Its first argument was that it is a presumptive management right for an employer to determine the

hours ofwork of its employees. Therefore it urged the board to start from the premise that in the

absence of any contractual or statutory restrictions, or evidence of bad faith, arbitrators should

not interfere with the shift schedules that have been implemented by management. In support of

that argument the employer pointed to the existing provisions of article 3 of the collective

agreement in which the Association acknowledges that it is the function of the town to maintain

order, discipline and efficiency and to generally supervise and administer the affairs of the fire

RN, COHNs, CHES, CCM, FNP and Andrew W Long, FIFireE, CFPS CFEI, CCFI, AT PAGE I

10

and emergency services department. It submitted that efficiency was undoubtedly affected by the

setting of hours of work for employees. It did acknowledge that there was an existing provision

in the collective agreement in which the parties had bargained the existing schedule under article

7 setting up hours of work. However it noted that the employer was simply attempting to

maintain the status quo concerning the existing shift schedule which had been in place since the

1940s and put into the collective agreement in the 1950s. In addition, the employer submitted

that because it was the Association that was seeking to alter the status quo, it should be seen as

bearing the onus of establishing there was a compelling reason for the existing shift schedule to

be changed.

The Town submitted that the 24-hour shift issue had been considered carefully by the joint

committee process referred to above and that submissions had been made following the process

to the Fire Chief on the subject of benefits for firefighters that might be associated with moving

to a 24-hour shift, but submitted that there were no tangible operational benefits from the town's

perspective and there were significant operational concerns about the administration of the 24-

hour shift in a department of the size at issue here and potential safety risks of a 24-hour shift.

The employer's third argument was that the status quo should prevail in interest arbitrations

unless the party desiring a change to a collective agreement can demonstrate that such a change

is needed and provide a reasonable proposal that addresses the establish need for change.

Further, the employer went so far as to submit that the Association bears the significant burden

of demonstrating that the status quo is so irreparably broken that the new shift schedule must be

11

implemented. It submitted that this onus would require the Association to prove that the existing

shift structure raised serious safety concerns for firefighters and that the Association failed to

present such a case. In further support of this position the employer submitted that the board's

jurisdiction in this regard was limited to the consideration of firefighter safety, and that it could

not be swayed by personal preference or perceived improvements to the level of public service

that might be provided.

The Employer also argued that the principle of comparability should be given very little weight

when considering the issue of a 24-hour shift schedule and its implementation. The employer

submitted that while comparability evidence might be relevant to issues of compensation, health

and wellness benefits, or vacation entitlement, when it came to issues of firefighter safety and

operational concerns, comparability should be seen as a less relevant factor or as not having any

relevance at all. In further support of this position, the town noted that in the majority of cases,

departments that are operating under a 24-hour shift have determined on their own terms that the

24-hour shift would be functional for that department. Finally, it suggested that the comparator

data would be relevant only if the Association could establish with compelling evidence that the

shift adopted by the comparators was fundamentally better in terms of firefighter safety. The

employer submitted that this type of evidence is lacking.

In the alternative, the employer submitted that if the board viewed comparator evidence as being

relevant to the 24-hour shift issue, it took the position that the comparator data that did exist

would not support the association's proposal. The employer noted that while more than two

12

thirds of Ontario firefighters might be on the 24-hour shift, when one looked at fire departments

as the relevant numerical comparator, only about one third of the fire departments where the

IAFF represents firefighters have adopted some form of the 24-hour shift.

In terms of the jurisprudence of previous interest arbitration boards, the employer noted that in

most cases where the 24-hour shift has been adopted by a board of arbitration there have been no

reasons provided for its adoption, and also noted that in one recent decision (City ofQuinte West)

the proposal for a 24-hour shift was rejected. Finally, the employer noted that when it came to

local comparator fire departments that were most frequently relied upon by the parties in terms

of monetary issues, none ofthose local comparators operate on a 24-hour shift schedule.

Finally, the Town submitted that there were significant reasons related to health and safety that

provided compelling arguments against the imposition of a 24-hour shift. It submitted that the

24-hour shift would generate health and safety risks for individual firefighters as well as for the

general public. To support its position on this point, the town retained Dr. Stephen Lockley, of

the Division of Sleep Medicine at Harvard Medical School, to provide expert testimony

regarding sleep, sleep deprivation, 24-hour shifts and health and safety. Dr. Lockley's curriculum

vitae and letter of opinion that was provided to the employer pursuant to its request were

submitted to the board as exhibits and Dr. Lockley was called to provide viva voce evidence

before the board.

Dr. Lockley is currently employed as an Associate Neuroscientist at Brigham and Women's

13

Hospital in Boston, MA, which is part of the Harvard Medical School. He has also been an

Associate Professor of Medicine at Harvard Medical School since 2011. After review of Dr.

Lockley's curriculum vitae and his educational background, work experience and extensive

academic research publications, he was accepted as an expert on sleep and circadian rhythm

biology. He was not put forward as an expert on firefighter operations or as a firefighter sleep

expert. It was also noted that Dr. Lockley had been accepted as an expert witness on sleep and

circadian rhythms in three prior cases, two of which involved the issue of 24-hour shifts for

firefighters. One of those cases was a 2003 interest arbitration in North Attleboro, Massachusetts.

More recently he has testified as an expert on behalf of the employer in an interest arbitration

dealing with the 24-hour shift for firefighters in Airdrie, Alberta.

The main focus of Dr. Lockley's testimony were the four factors which determine current

sleepiness and can thereby impact on an individual's reaction time and ability to function

effectively. Those four biological factors were identified as: (1) biological time of day as

affected by a person's circadian rhythm; (2) how long the person has been awake, resulting in

acute sleep deprivation; (3) chronic sleep deprivation resulting in cumulative sleep debt over

time: and (4) sleep inertia, referring to the time required to get going after waking from sleep.

Circadian rhythms are natural 24-hour biological rhythms generated automatically by a person's

circadian clock. These rhyihms regulate numerous physiological, behavioral and metabolic

functions including alertness, sleep wake cycle, and performance patterns. The natural biological

rhyihm for people is to be asleep at night in the dark and awake during daylight hours.

Disturbances of that natural order can lead to short-term safety consequences, and long-term

14

health consequences.

In Dr. Lockley's opinion, the combination of two or more of these biological factors can cause a

multiplier effect in terms of the detrimental impact on performance, such that the combination of

factors one, two and three, which he suggested would be present when a person was working 24-

hour shifts, could result in performance that was up to 1 0 times worse as compared to someone

who simply suffered acute sleep deprivation by itself. Dr. Lockley also testified that the effects

of sleep deprivation on performance could be compared to those caused by alcohol in terms of

the impairment of brain function. He testified that being awake for 17 hours has been shown to

equal the performance level equivalent to a 0.05% blood-alcohol concentration and 24 hours

awake without sleep has been shown to be equal to a 0.10% blood-alcohol concentration, or akin

to being legally impaired. He also suggested that these effects would be worsened by adding the

time necessary to commute to and from work to get ready for work because this would have to

be added to the long shift duration in terms of deprivation of sleep.

Dr. Lockley also gave the opinion that the effects of sleep deprivation determined by the four

biological factors, as demonstrated in the studies in which he participated when looking at

physicians and medical residents, applied equally to firefighters, despite the fact that he had

never participated in a study which looked at the effects of 24-hour shifts on firefighters. He

noted that the physician research studies had shown that the likelihood of errors was significantly

greater during a 24-hour shift as compared to a16 hour shift, noting that medical errors could be

as much as 36% higher for the longer shift. He also noted that the odds of a physician being

15

involved in a motor vehicle accident after a 24-hour shift were two times greater than after a 16

hour shift. Dr. Lockley also noted that studies had concluded that night shifts by themselves

present serious health and safety risks which are then compounded if they are part of a longer

shift. He also testified that studies had shown that there were detrimental health and safety and

performance effects when physicians worked shift schedules of 24 hours or longer. Dr. Lockley

also testified that in his opinion a 12 hour shift is significantly safer and healthier than the 24-

hour shift, and a 1 0 and 14 hour shift schedule would also be substantially safer than a 24-hour

shift.

Although Dr. Lockley acknowledged that the 10/14 hour shift rotation would affect

chronic sleep loss, he took the position that the buildup of chronic sleep debt is slower and less

severe than the effects of acute sleep deprivation that might result from a 24-hour shift. He also

noted that longer shifts increase the need for attempting to sleep on the job which introduces the

risk of sleep inertia on performance and safety. In addition, although he acknowledged that there

might be some expectation that a firefighter working a 24 shift would be able to sleep at some

point during the shift, he noted that there is no guarantee that any sleep will be attained during

the shift and therefore the shift system should be designed to be safe assuming that the firefighter

will get no sleep during the 24-hour period. Dr. Lockley also testified on studies that have shown

the benefits of going from a 24-hour shift to a 16 hour shift in the case of medical residents and

going from a 24-hour shift to a 12 hour shift in terms ofEMTs. In the first case they showed a

significant reduction in the number of medical errors and a reduction in vehicle accidents while

driving home from work. In the second study they demonstrated a reduction in the incidence of

16

emotional exhaustion and family disruption. Dr. Lockley also expressed the view that the

biological factors that determine the detrimental effects of sleep deprivation and working 24-

hour shifts would be the same regardless of what profession was being studied. It was for that

reason that he suggested that the results of his studies on doctors and EMTs and other

professions that were not firefighters should be seen as predicting the outcome of the impact of

the 24-hour shift on firefighters' performance.

Dr. Lockley also testified on his opinion on the validity and value of the studies and reports on

firefighters' shift work that had been introduced by the Association. He took the view that none

of the reports relied upon by the Association to support the benefits of the 24-hour shift were

valid scientific studies and suggested that none of them would pass peer review. He noted that in

fact one of the main studies put forward by the Association was simply an internal document

based on a model and was not an actual study. In his opinion none of the studies relied upon by

the Association reflected good academic scholarship and he noted that the Glazner reports

contained little or no evidence to support some of the strong conclusions arrived at by the

authors. He also gave the opinion that Dr. Glazner was not a sleep, circadian rhythm, or

shiftwork specialist and had minimal research experience and very little research output. He also

noted that the main Glazner Report appeared to be an internal report which had not undergone

any scientific peer review process to evaluate the study design and the methods used. In his view,

it would not be considered a research paper by the scientific community and its conclusions

should not be considered to be scientific findings.

17

In cross-examination, Dr. Lockley admitted that it was still the case as of the date of the hearing

that there were no objective scientific studies that assessed whether individual performance in

the fire service improved or deteriorated as a result of working a 24-hour shift schedule. Thus

while there were studies on the impact of extended shift scheduling in other professions that had

raised some significant performance concerns and had led others to suggest the need for further

scientific study of the impact of 24-hour shifts in firefighter services, no such studies had been

done. It was also noted that a March 2011 discussion paper entitled, The Health And Safety

Impacts of24-Hour Shifts In Fire Departments, published by the Ontario Association of Fire

Chiefs and the Ontario Municipal Human Resources Association, recommended that further

research needs to be done to determine if the 24-hour shift constitutes a greater risk to the health

and safety of firefighters than the existing 10-14 shift pattern. However, Dr. Lockley refused to

agree with that recommendation on the basis that he felt we already had sufficient evidence from

other professions that showed increased risks associated with working 24-hour shifts. He also

refused to agree with the suggestion in the same report that sleep deprivation can just as easily be

the result of off duty activities as it can be from on-duty activities. In his view the length of the

working shift should be the major concern in terms of the ability to sleep. However, he did admit

that his opinion that there was sufficiently strong scientific evidence that the 24-hour shift was

riskier in terms of health and safety than the 14 hour shift was based only on studies that have

been published in academic journals that were done on other professions and not on firefighters.

Dr. Lockley also admitted that sleep inertia would be a factor impairing performance whenever a

firefighter was awoken while sleeping during a shift whether the shift was 14 hours in duration

18

or 24 hours in duration. However, he suggested that the level of sleep inertia could be worsened

by other factors such as acute sleep deprivation which could be worse on a 24-hour shift. When it

was put to him that a firefighter working a14 hour shift may have been awake for the entire 10

hours before reporting for work and therefore could have just as much acute sleep deprivation as

someone working 24-hour shift, Dr. Lockley said simply that the firefighter would not be

reporting for work fit for duty if that was the case.

Dr. Lockley admitted both in his written letter of opinion and in his testimony that the

expectation to sleep while on duty during the night shift is an unusual characteristic associated

with the work of firefighters, given that all other professions generally work throughout the night

shift without being permitted to sleep. Despite this admission, he refused to admit that it would

be important, given this distinctive feature of a firefighter night shift, to do studies focusing on

firefighters before offering judgment on the safety of the 24-hour shift for a firefighter. He also

admitted that he had not attempted to find out how much sleep Ajax firefighters were currently

getting during night shifts on the existing schedule.

Dr. Lockley also admitted in cross-examination that he was participating in an ongoing clinical

trial of an intervention to reduce fatigue and improve safety and health in firefighters working

long shifts. The reference to that study was found at page 16 of his curricul urn vitae. Dr. Lockley

stated that it was a goal of that study to conduct a station level clinical trial of policies designed

to maximize sleep opportunities during current 24-hour shifts to improve alertness, performance,

health and safety in firefighters working on that shift. He noted that he was also part of a study

19

to look at methods to try to avoid fatigue in the first place and to look at ways to better manage

fatigue for firefighters during 24 hour shifts, but that study would not be completed until2014.

He was also part of another study entitled National Firefighter Sleep Disorders Management

Program: Translation To Practice, to be done between 2009 and 2012. The purpose of the study

was to compare and contrast three different methods for implementing and disseminating a sleep

disorders detection and treatment program for better performance, health, and safety for

firefighters. Unfortunately, none of the studies were structured to determine the effect of the 24-

hour shift on firefighters' performance and health and safety as compared to the 10/14 hour shift.

Dr. Lockley said he was aware that 73% ofiAFF members in the U.S. work 24-hour

shifts and that many in the Massachusetts area work a 24 hour shift as welL However, he said he

had no evidence on the percentage of workers who work 24-hour shifts who would report for

work in a sleep deprived state. Dr. Lockley also acknowledged that he had testified on the

dangerousness of the 24-hour shift for firefighters in both the Airdrie interest arbitration, infra,

and the North Attleboro fire arbitration, infra. In the first case the 24-hour shift had been

continued by the board of arbitration and in the second case the arbitrator ordered a 24-hour shift

to replace the previous 1 0 and 14 hour shift structure. He also agreed that most if not all of the

studies that he relied upon for his opinions in this case were also completed and relied upon in

his testimony before the Airdrie board of arbitration.

During cross examination, Dr. Lockley resisted admitting that all of the types of sleep

deprivation and biological factors which could affect performance during shift work could be

20

addressed and reduced somewhat by getting sleep before or during the shift no matter what the

duration of the shift. He continued to stress that he felt the shift structure should be based on the

expectation that firefighters will have to work their entire shift without getting any sleep.

However, he admitted that he had no idea how often that might happen in the town of Ajax. Dr.

Lockley also admitted during cross examination that under both the existing shift schedule and

the proposed 24-hour shift schedule Ajax firefighters would work an average of 42 hours per

week, whereas the medical interns who had been the subject of the research study he relied upon

were working an average of 77 to 81 hours per week. Nevertheless, Dr. Lockley insisted that he

should be able to continue to rely on the studies done on medical interns and sleep deprivation

because the biology of firefighters was no different than that of medical interns.

Dr. Lockley also admitted that on the current 10/14 hour shift schedule, during the last two

weeks of that schedule where the firefighter goes from working three 10 hour days to working

three 14 hour nights during six consecutive days, there would be a buildup of chronic sleep debt

by the end of the third night. However he contended it would be less detrimental to performance

than the acute sleep deprivation of working a 24 hour shift. But he admitted this opinion was

based on the assumption that the firefighter would be getting some sleep during his time off

during the day before his night shifts. He also admitted that in one of his previous studies of

medical interns he had determined that 85.6% of those interns slept four hours or less during

shifts of 24 hours or longer. However, he was not aware of any similar study of firefighters

working 24-hour shifts to determine the amount of sleep they might get during that shift. He said

he had thought of such a study but he did not apply for funding to do it to this point and admitted

21

that none of his four current studies of firefighters focused on obtaining that information. Nor did

he have any data for Ajax firefighters in terms of the number of calls they may receive during a

night shift or the amount of sleep that they may be able to get during the shift.

The employer also suggested that there may be some detrimental impacts on operational and

economic factors that could result from the 24-hour shift. However it acknowledged in making

those arguments that there was no other fire service in Ontario which had reported publicly with

respect to the operational and economic indicators despite the fact the 24-hour shift had been in

place in many of these fire departments for many years. The speculative concerns raised were

whether it could affect the ability of the department to have sufficient on-duty staff in order to

provide relief in the event of a busy shift or major lengthy incident. Other potential negative

effects suggested were that there may be fewer firefighters available for call-ins because there

may be more firefighters living outside of the municipality ifthey had a 24-hour shift, that

somehow the 24-hour shift could make it more difficult to offer training programs for firefighters

while on duty, the fear that the 24-hour shift could result in increases in overtime costs, a

suggestion that it could also lead to increased absenteeism rates, and the fact that there may have

to be adjustments to the administration of other parts of the collective agreements if there was a

different shift schedule. However, there was no evidence provided of the existence of such

detrimental effects resulting from the implementation of the 24-hour shift in other Ontario fire

departments employing approximately 75% of all firefighters in Ontario currently working a 24-

hour shift schedule.

Finally, the employer made reference to the fact that a 24-hour shift would be illegal under the

provisions of the Employment Standards Act, 2000 regulating hours of work for most employees

in the province, but from which firefighters are expressly exempted. It also made note of the

employer's obligations and potential liability under the Occupational Health and Safety Act and

the Criminal Code in terms of its obligation to take reasonable steps to provide a safe and

healthy workplace and prevent bodily harm to its employees. It also made reference to potential

civil liability on the part of the town in the event that accidents arose as a result of firefighters

suffering from fatigue on 24-hour shifts.

In response to the latter arguments, the Association noted that section 43 of the Fire Protection

and Prevention Act of Ontario (S.O. 1997, c.4) specifically provides for firefighter platoons

working 24-hour shifts as long as such a shift is followed by 24 consecutive hours off duty. It

also made note of the fact that many of the largest fire departments in Ontario have been working

under a 24-hour shift for many years as a result of negotiated settlements or arbitration awards

and the employers and associations involved in those fire departments are subject to the same

obligations in terms of health and safety and criminal responsibility and civil liability. In

particular the Association noted that, despite the fact approximately 75% of firefighters in

Ontario and over 70% of firefighters in the United States are working a 24-hour shift schedule

and have in some cases been doing so for many years, the employer was not able to point to a

single study demonstrating negative health and safety consequences resulting from that shift or

indicating criminal or civil liability resulting from firefighters working those schedules.

Decision

After careful consideration of the submissions of both parties and the relevant criteria to be

applied to interest arbitration, we have decided that the Association's proposal for a trial period

for the 24 hour shift should be granted. Our reasons are as follows.

First, I reject the employer's contention that hours of work or other operational concerns are

presumptively the right of management to determine and they should not be subject to the

normal criteria of comparability and replication when they are issues before a board of interest

arbitration. To accept the employer's position would belie or undermine the role of a board of

interest arbitration as a mechanism which is instituted to replace the use of economic sanctions

where the parties involved in collective bargaining come to an impasse. The suggestion that

hours of work are somehow different from issues such as compensation when it comes to the

interest arbitration process and the criteria used to assess and decide on the parties' proposals on

such issues, is also belied by the fact that there are current provisions in the collective agreement

dealing with hours of work and shift schedules. This is an issue which is clearly of great

importance to both parties in this round of bargaining, and has been the subject of several interest

arbitration awards in recent years in Ontario, other provinces and the U.S. (referred to below). It

has not been suggested in any of those other prior interest arbitration awards that a board ruling

on this issue was somehow precluded because the scheduling of hours of work was a

presumptive management right. I also note that proposals for the imposition of a 24 hour shift on

24

a trial basis for firefighters have fared quite well before interest arbitration boards in Canada in

recent years.

Second, I am unable to find, based on the opinion evidence of Dr. Lockley presented by the

employer at the hearing, that the employer has established that the 24-hour shift presents greater

health and safety risks to firefighters and those whom they serve than a 10/14 hour shift

schedule. In this respect, my conclusions on the impact of the evidence provided by Dr. Lockley

concerning studies done on physicians and truck drivers as they relate to the effects of various

shift schedules on firefighters are very similar to those arrived at by arbitrator Tettensor in the

Airdrie firefighter award and by arbitrator Greenbaum in the North Attleboro award. It would

appear from a consideration of Dr. Lockley's evidence in this hearing that he presented very

similar evidence at the City of Airdrie hearing in front of arbitrator Tettensor. For ease of

reference I reproduce here some of the conclusions from the Airdrie award:

Lockley was critical of the studies and reports on firefighters shiftwork introduced by the Association in support of the proposal. He emphasized the importance of scientific rigor and peer review. He said the Association materials did not result from scientific studies that would pass peer-reviewed and they contain little evidence to support some strong conclusions. At the same time, he acknowledged that his evidence on the effect of sleep deprivation in the workplace was based on studies of physicians and truck drivers, not firefighters. He is in fact participating in such a study but it is not yet complete. It is reasonable to conclude the studies being done because it is felt to be necessary. He was not able to refer to a study of firefighters comparing a 24-hour shift structure like that working Airdrie to a 12 hour structure is proposed by the city. He conceded that there are limitations to any study and the applicability of findings to another setting is always an issue. It is significant, in my view, that in the study of extended shifts of interns, the traditional schedule of interns require them to work an average of 77 to 81 hours per week, well in excess of the 42 hours worked by Airdrie firefighters.

While I accept that the points Dr. Lockley has made must be taken into account when the

studies and reports relied upon by the Association are considered, I am not satisfied that they should be accorded no weight at all.

The Association referred to a report submitted by the joint labor management committee commissioned to compare a 24-hour shift structure to a 10/14 structure leading up to the decision in Toronto to implement 24-hour shifts for firefighters. The report notes that approximately 70% of firefighters in the US worker form of24 hour shifts. The report asserts that 24-hour shift schedules are commonly worked throughout the world. This is not disputed by Dr. Lockley. The committee, which included a veteran firefighter and veteran fire captain, concluded from a review of a number of studies, including one by Dr. Linda Glazner who concluded that the 24-hour shift structure was most preferred to promote the physical and psychological health of firefighters (which Dr. Lockley said was outdated), that a 24-hour shift structure provided more damages to firefighters overall health than the 10114 structure. Following the report, the Toronto fire department with approximately 3000 members, implemented 24-hour shifts. Approximately 72% of IAFF members in Ontario work 24-hour shifts.

In 2005, Defense and Research Development Canada was asked by the Canadian forces fire marshal to assess five different firefighter schedules and determine which was most optimum. It's report, based on a modeling program, not a study, concluded that the optimum of five schedules for sustaining cognitive performance in the face of nocturnal alarms were based on 24-hour shifts.

The Association's submission supports its assertion that there is a recent trend in interest arbitration awards in Canada to implement 24-hour shifts on a trial basis, followed by permanent adoption at the end of the trial-The Corporation Of The City Of Hamilton And Hamilton Professional Firefighters Association, The Corporation ofThe City of Cambridge and The Cambridge Professional Firefighters Association And The Corporation of The City Of Kingston and The Kingston Professional Firefighters Association. Also interesting is the US decision, in which Dr. Lockley testified expressing his concerns with implementation of 24-hour shift for firefighters. In local 1992, IAF F and Town of Attleboro the arbitrator ruled in favor of24-hour shifts. He noted that under the traditional 10/14 structure, there is no regulation of the activities of a firefighter before the 14 hour night shift; a firefighter could be more sleep deprived during the night shift and then he would be with a 24-hour shift. He also made the point that experience is an important factor. He referred to the large number of fire departments in the US that have 24-hour shift schedules. He concluded that the most reasonable inference was that many city officials and leaders of firefighters union found a 24-hour schedule to be satisfactory and safe. This is a reasonable conclusion to draw based on the experience in Canada too; there is no evidence here that the concerns expressed by Dr. Lockley have materialized.

This case is not about medical residents working shifts in excess of 24 hours compared to those residents working 16 hour shifts. It is about comparing an existing 24-hour shift

26

schedule to a12 hour schedule. In the 24-hour schedule firefighters worked 24 hours starting at 8 AM, followed by 48 hours off, then work another 24 hours, followed by four days. In the proposed 12 hour shift they would work to consecutive 12 hour days starting at 8 AM, followed immediately by two consecutive nights starting at 8 PM. In this schedule, the firefighter, after two full 12 hour shifts will rise after a regular night and be faced with trying to the best snap against his circadian rhythm before work that evening. This was the shift change referred to by the arbitrator in the North Attleboro case. It is also the change referred to by Airdrie firefighters when they made the proposal to change, 10/14 scheduled 24-hour shifts in 2005. Firefighters said that most of them got up in the morning and went about their data before reporting for work and by the end of the night shift they have been effectively offer 24 hours. I'm not satisfied that this is much different than working a 24-hour shift, except it is without the break of at least 48 hours afforded by the existing schedule. Dr. Lockley's opinion is that the firefighter would be better off with 12 or schedule them with 24 hour shifts separated by ample time to rest. His ongoing study might confirm this, but at this time his opinion is not based on a peer­reviewed scientific study of firefighters. Balancing this opinion against the extensive experience of fire departments in the US and Canada with 24-hour shifts and the conclusions in the studies referred to in the Association material, I am led to the conclusion that the question remains very much open as to whether the 12 hour shift proposed by the city is better from a health and safety standard than the current 24 hour shift, and if so, whether the difference is significant.

I am satisfied that the health and safety of firefighters and the public are primary concerns of the city and the Association and that they will carefully consider the results of relevant scientific peer-reviewed studies to minimize the risks inherent in shift work of firefighters.

While I accept the city has certain operational and administrative concerns arising from the 24-hour shift schedule, it is significant that the shift schedule has been in place since 2005 and the material provided does not show there are major issues. These concerns must be balanced against the work/life alignment advantages the city referred to in its letter to firefighters of October 20, 2009 .

. . . For the reasons outlined above, I also conclude that the balance of the evidence does not support the conclusion that members of the public are at greater risk to the shift structure here. This would seem to be consistent with government policy to grant permits to fire departments in the province to work 24-hour shifts and employment standards legislation in British Columbia, Saskatchewan and Ontario which permit firefighters to work 24-hour shifts without earning overtime.2

2 The City ofAirdrie and the Airdrie Professional Fire Fighters Association, IAFF Loca/4778, (unreported), Feb. 28, 2012 (Tettensor, Q.C.).

27

I note that in the months since the Airdrie award was released employment standards

legislation in Alberta has been amended to allow for 24 hour shifts for firefighters without the

necessity of applying for a permit from the Labour Ministry.

The evidence of Dr. Lockley was also not accepted in the North Attleboro award as being

sufficient to demonstrate that the 24-hour shift was more dangerous than the 10114 hour shift. In

that decision the arbitrator relied heavily on the factor of comparability and the wide adoption of

the 24-hour shift in both his region and throughout the United States more generally to award an

order requiring the town to move from the 10/14 shift to a 24-hour shift. The arbitrator relied on

the widespread experience with the 24-hour shift and the absence of evidence of detrimental

impacts on the health and safety of firefighters or the general public as a result of its adoption.

He also noted that there was not a scintilla of evidence that any of those cities or towns which

had adopted the 24-hour shift had rescinded or attempted to rescind that schedule since its

adoption. In arriving at his conclusions he made note of the famous quotation from Justice

Holmes in The Common Law that "the life of the law has not been logic, it has been

experience. "3

I agree with arbitrator Tettensor that there are important differences between the duties and

schedules of the firefighter and the occupations of medical resident or trucker which formed the

basis of the studies relied upon by Dr. Lockley. Dr. Lockley himself acknowledged that

firefighters were unique in that there was an expectation that they would sleep at some time

3 Locall992, IAFF and Town ofNorth Attleboro, (unreported) April29, 2003 (Greenbaum), at page 5.

28

during their shift whether working a 14 hour shift or 24-hour shift, and that they were quite

different from medical residents in that the medical residents whom he studied tended to work an

average of77 to 81 hours per week, well in excess ofthe average of 42 hours per week worked

by firefighters. Nevertheless, during cross-examination he refused to agree with the suggestion

that perhaps he should wait until studies comparing the impact on performance of working a 24-

hour shift versus a 1 0114 hour shift schedule were done on firefighters before providing a

conclusive opinion that the 24-hour shift was more hazardous to the health and safety of the

firefighter than a I 0/14 hour shift. Dr Lockley asserted that he did not need to wait for those

further studies to be done because, in his words, "human beings are human beings", despite

acknowledging the differences between firefighters and other occupations which rendered them

unique in some respects.

Dr. Lockley's willingness to offer strong and definitive conclusions, in the absence of specific

peer-reviewed studies done on members of the occupation at issue to support those conclusions,

appeared to be at odds with his earlier criticisms of all of the studies relied upon by the

Association to support its assertion that the 24-hour shift offered significant physiological and

psychological benefits for firefighters as compared to the 10/14 hour shift. In his testimony in

chief, he was very critical of the authors of those studies for offering strong conclusions without

rigorous scientific studies with proper control groups to control for every variable that could

affect the validity of the outcomes, studies that had been tested by peer review. His refusal to

accept the suggestion that it was not possible for him to offer strong definitive conclusions on the

health effects of the two different shift schedules on firefighters in the absence of peer-reviewed

29

studies on firefighters, studies with sufficiently rigorous scientific controls for all variables that

could affect outcomes, appeared to be inconsistent with his earlier criticisms of the association

studies. This made it difficult to accept his conclusions, particularly where they seemed to be at

odds with a large volume of experience and legislative regulation of hours of work.

I also agree with arbitrator Tettensor's conclusions regarding the studies put forward by the

Association. They may lack the scientific rigor and integrity of properly peer-reviewed academic

studies, as suggested by Dr. Lockley, and accordingly cannot be viewed as conclusive or

determinative evidence of the superiority of the 24-hour shift as compared to the 10/14 hour shift

in terms of health and safety and other psychological benefits. Nevertheless, as studies which

were specifically commissioned for the purpose of assessing the costs and benefits of different

shift structures for firefighters, and due to the fact at least the Glazner study had professional

firefighter participation in its design and as subjects of the study, its value cannot be totally

discounted, at least in terms of providing some type of anectodal evidence of firefighters'

experience under the various shifts.

Another reason for discounting the expression of employer concerns about health and safety and

some other operational concerns is the absence of any evidence of negative consequences in

terms of health and safety and other operational needs despite the fact that the 24-hour shift has

been in place in some municipalities in Ontario for many years and in recent years has been

introduced through the mechanism of trial periods of approximately 2 years in duration before

being considered for a permanent change to the 24-hour shift. Basic logic would lead one to

30

believe that, if there were negative effects of the type suggested by the employer, both in terms

of health and safety and operational needs, statistics and evidence would have been gathered on

those negative effects during these trial periods in numerous municipalities. In short, particularly

where the adoption of the trial period was resisted initially by the employer before being agreed

to or ordered by an arbitration board, one would have thought that these types of concerns would

be under very close scrutiny by both management and the Association in order to ascertain

whether fears of such negative consequences were real. Despite that fact, there did not seem to

be any reports of actual data demonstrating the realization of those fears, either in terms of health

and safety or operational concerns such as staffing, absenteeism, overtime and training.

Finally, I am not persuaded by the employer's arguments concerning the illegality of working 24-

hour shifts for employees who work in occupations in Ontario other than firefighting, and its

references to employer obligations under occupational health and safety and criminal code

legislation. As noted above, current legislation in Ontario and other provinces allows for 24-hour

shifts for firefighters. To the extent that working shifts of this length does create significant risk

to the health and safety of firefighters or members of the public, it is well within the legislative

mandate of the provincial government to enact legislation to prohibit the parties from agreeing to

such shifts. The fact that it has not chosen to do so, and in fact has expressly recognized the 24-

hour shift in the Fire Protection and Prevention Act, suggests that the government does not agree

with the employer on the hazards of the shift. Second, as the arbitrators in both the Airdrie and

the North Attleboro awards have noted, longstanding and widespread experience throughout

North America would suggest that the 24-hour shift does not present the risks suggested by the

31

employer in terms of civil or criminal liability.

This leaves us to consider the parties' arguments concerning the factors of employee preference,

demonstrated need, and comparability and replication. In my view the Association has made a

persuasive argument for the inclusion of an order that the 24-hour shift be implemented for a trial

period on the basis of the factors of comparability and replication.

After concluding that the expert evidence provided by the employer does not establish that the

24-hour shift is more hazardous than the 10/14 hour shift schedule or that it represents a threat to

the health and safety of firefighters, and considering all of the remaining evidence concerning

demonstrated need, employee preference, comparability and replication, we have determined that

this is an appropriate case in which to order that the parties implement the 24-hour shift on a

two-year trial basis. In order to do so the parties should strike a joint committee to shape the

terms of the trial 24-hour shift schedule and put in place a mechanism to study the operation of

the 24-hour shift to determine if it is viable and how its operation might compare to the 10/14

hour shift, in terms of health and safety, employer operational concerns (such as absenteeism,

overtime, training, staffing difficulties, cost, etc.), work life balance, and employee preference. In

making this order for a trial period, we emphasize that this in no way predetermines whether or

not the 24-hour shift will be found to be viable and effective for these parties on a permanent

basis. We encourage the parties to attempt to put in place monitoring and assessment

mechanisms which will enable them to determine the effects, both positive and negative, and

enable those effects to be evaluated based on agreed-upon benchmarks. In our view, the use of

32

the trial period represents a reasonable compromise given the strong disagreement of the parties

on this issue, the parties' inability to resort to economic sanctions, and the recent trend in interest

arbitration awards and negotiated agreements on this issue.

The Board remains seized to deal with any issues until a collective agreement is in place.

Done at Windsor, Ontario, this lf~ay of April, 2013.

Brian Etherington, Chair

Michael Riddell, Employer Nominee

ta~"4 ,:e~&~ Jeffrey Sack, Q.C., Union Nominee ~ tt/' C.

33

Dissent of Employer Nominee

I have reviewed the Award of the Chair, and I must dissent on several

aspects of the A ward, including the Chair's decision to award the trial period

for the 24 hour shift.

In fashioning his award, the Chair has not demonstrated that he has, in fact,

given proper consideration to the criteria that we are statutorily mandated to

consider under the Fire Protection and Prevention Act, 1997. This becomes

more relevant as one reviews the Chair's Award, as it is not clear on what

basis he has decided each issue in dispute.

The Chair's decision to dismiss the Association's request for increases to the

officer rank differentials and paid medical notes are appropriate in my view.

The benefit improvements awarded by the Chair do not appear to be

warranted in my view based on the comparator data provided by the parties.

However, if any improvements were warranted, as the Chair has obviously

concluded, I would have awarded the cost offset proposed by the Town in

the form of changes to the premium contribution rates to be paid by

Association members.

I would have also awarded the Town's straightforward proposal to clarify

the LTD language in the Collective Agreement. The Town's evidence of

practice was not contradicted and the Town's proposal is merely a

"housekeeping" type of proposal designed to avoid future conflict rather

than constituting anything "new". Accordingly, while I would have been

inclined to clarify the language, in not awarding the Town's proposal the

Chair has done nothing to affect the status quo or to change the accepted past practice.

Wages:

While The Board Chair has awarded wage rates that are consistent with the end rates negotiated by the Durham Regional Police Association, the Board Chair has failed to recognize that, as stated by the Town in its' materials, the wage increases negotiated by the police in 2010 and 2011 were split each year- in January and July. So, while the Board Chair's award would result in police/fire parity at the end of each calendar year, as has apparently been the pattern between these parties in recent years, the increases awarded do not maintain parity through the calendar year and would result in the firefighters earning more in base salary over the course of the entire years in 2010 and 2011.

There is no support for this type of approach nor is this something that is required in these circumstances. In effect, the Board Chair's approach would, for the term of this contract, change the pattern that would have freely been negotiated by the parties in collective bargaining. This is inconsistent with the principle of police/fire comparability as presented by the Association and it completely ignores the principle of comparability.

24 Hour Shift Trial:

When read in its' entirety, the Chair's decision and rationale to award a 24 hour shift trial is both erroneous in terms of his approach towards the issue, the evidence which has been given priority, and most problematic, the legal and practical analysis which has been applied.

2

In a publication entitled Leading Cases of Labour Arbitration authored by the Chair of our Arbitration Board and by a former Arbitrator, Mort Mitchnick, Chapter 21 of same deals with Hours Of Work and at Page 1 of Chapter 21, the authors conclude that:

"Arbitrators have generally held that the scheduling of work is an inherent management right. Subject,

therefore, to any express restrictions found in

employment standards legislation or the collective agreement, the employer is entitled to assign and to vary the hours and shifts of work. This principle was affirmed by the Supreme Court of Canada in Air-Care Ltd. V. U.S.W.A. (1974), 49 D.L.R. (3d) 467"

For an Interest Arbitration Board to substantially infringe on an inherent management right, the Association must be required to prove that there is a demonstrated need for change. This contention is supported by an Interest Arbitration Award of Arbitrator Adams in The Participating Hospitals and CUPE and SEIU (unreported, June 28, 1995) who held that the inclusion of a new clause in a Collective Agreement or amendment of an existing clause must be accompanied by proof of a demonstrated need.

The usual criteria that Interest Arbitration Boards conclude in fashioning an Award are demonstrated need, replication and comparability. These criteria were presented to the Board by the Town and were not challenged by the Association. However, in this case, the Chair completely ignores the criterion of demonstrated need and introduces the criterion of employee preference (with absolutely no Interest Arbitration jurisprudence in support

3

of this new-found defining principle) as being a significant factor in awarding the 24 shift trial.

It is clear from the comments of the Chair in this A ward and through the executive discussions of the Board that his decision has been significantly influenced by previous Interest Arbitration awards ordering trial periods and negotiated settlements adopting 24 hour shift schedules on a trial or permanent basis.

The Interest Arbitration Awards in Canada that the Chair has relied upon and referenced are Aidrie, Alberta; Cambridge, Hamilton and Kingston, Ontario. In the Airdrie case the 24 hour shift schedule was implemented in 2005 and the City was proposing to change to a 12 hour structure that was not worked by any other IAFF firefighter in the Province. Counsel for the Association in that case was Mr. Sean McManus who was also Counsel for the Association in the instant case. As Mr. Mason, on behalf of the Town, pointed out to the Board at Page 7 of the Aidrie Award, Mr. McManus argued that:

" ... the City bears the burden of demonstrating that the status

quo, which the Association proposes, is so irreparably broken

that a new shift schedule must be implemented. The

Association submits that the City cannot establish this."

In our case, Mr. McManus adduced no evidence to prove that the status quo is irreparably broken in Ajax and on that basis alone the Chair should have not awarded the 24 hour trial. The City did not demonstrate the need for change in Airdrie, as Mr. McManus submitted was a necessary prerequisite for any award. In our case, the Association similarly has not demonstrated a

4

need for change, yet the Chair has seen fit to award a change in any event, contrary to a well-established principle, previously endorsed by the Association. Perhaps more troubling, however, is the fact that the Chair has apparently not given any consideration to the issue of onus in this case, and if he has, he has fundamentally erred in his assessment of same.

For the Cambridge, Hamilton and Kingston Arbitrations, neither the expert opinion evidence of Dr. Lockley, nor any other expert, was presented to any of those Arbitration Boards. One of the common aspects of each of these Arbitrations was that the same Arbitrator- Mr. Kevin Burkett- was the Chair. It is nor surprising that once having ordered a 24 hour trial in one Municipality that Arbitrator Burkett would reverse himself in another. However, the circumstances of each of those cases are unique. For example, in Hamilton, it is not clear that anything more than a committee to examine the merits of a 24 hour shift was ordered. In Kingston, Arbitrator Burkett ordered the continuation of the 24 hour shift for the term of the subsequent Collective Agreement as a result of complications and procedural issues during the hearing process (the City was seeking to eliminate their previously negotiated trial and the Association was seeking a move from a trial to permanent shift).

The Chair refers to a U.S.A. Award in the Town of North Attelboro, lVfassachusetts. Dr. Locley testified in that Arbitration, and the Arbitrator at Pages 8 and 9 of his award commented on that testimony as follows:

... Moreover, the expert testimony was far more powerful than acknowledged by the Union. The impact of the

5

circadian rhythm, the studies done on those people

performing delicate tasks without extensive sleep inertia

all raise legitimate concerns over the wisdom of adopting

the schedule sought by the Union. The Union's claim that

the firefighters are somehow immune from the conditions

cited by the expert was not persuasive. Firefighters are

not immune from nature's laws and the expert's

testimony was bout those immutable principles. While

none of the studies cited by the expert involved

firefighters, logic suggests that the way in which sleep

deprived interns deliver emergency care in the early

morning hours is an appropriate baseline against which

to consider firefighters providing emergency medical

services at that same time. Experience also suggests that

projecting firefighters' responsiveness after being

awaken by reference to a study of Israeli fighter is not

unfair.

From this excerpt, it is clear that the Arbitrator accepted the evidence of Dr. Lockley, which the current Chair summarily dismissed without any

acceptable rationale. Furthermore, while acknowledging the validity of safety concerns raised by Dr. Lockley concerning the 24 hour shift, the Arbitrator awarded the Association demand based on the fact that" " ... Every municipality with whom the Town has a mutual aid relationship works a twenty-four hour shift. Virtually every municipality of the Town's list of comparable communities works a twenty-four hour schedule ... " This is not the fact situation in the instant Arbitration. None of Ajax local comparators

6

in Durham Region - Clarington, Oshawa, Pickering or Whitby - have

implemented the type of 24 hour shift being proposed in Ajax. The Chair ha

referenced the North Attelboro decision without even acknowledging that

the Arbitrator did not dismiss Lockley's evidence in that case.

The Chair makes mention only of the decision of Arbitrator Starkman in a

2011 Arbitration Award (same nominees as in the current case) where

Arbitrator Starkman dismissed the Association's demand for a 24 hour shift

trial. The Chair appears to be dismissive of that A ward because it involved a

very small department even though smaller Municipalities such as

Amherstburg actually have a 24 hour shift and have been used by the

Association in support of its' claims regarding the number of firefighters

working on 24 hour shifts.

In the A ward, the Chair has demonstrated his reliance on negotiated

settlements about the 24 hour shift trials in Oakville and Sudbury. In fact,

the issue of the Sudbury settlement was raised by the Association following

the conclusion of the parties submissions at the Arbitration proceedings and

immediately before the Board scheduled executive sessions. This prompted

the Chair's direction for submissions by both parties on the relevance of

same and appears to have influenced the Chair's decision over the objections

of the Town. However, the Chair has failed to mention and recognize that

the Sudbury settlement, like most other negotiated agreements, contains a

provision allowing for the termination of the trial period at the discretion of

either party. The Chair has not awarded a similar provision in this decision.

However, one would anticipate that this would then similarly form part of

any agreement between the parties with respect to the terms of the trial

7

period to be implemented, especially in the light of the Chair's beliefthat the trial period "represents a reasonable compromise".

The Chair similarly has referenced the fact that approximately 73% of the firefighters in Ontario currently work a form of the 24 hour shift, either on a trial period or a permanent basis, in large municipalities and small towns in all parts of Ontario. However what the Chair failed to properly recognize is that this percentage is greatly skewed by the number of firefighters employed in the City of Toronto. If the Toronto numbers were removed, as it is only one service that is not normally a comparator for most fire services in Ontario, the percentage would drop to approximately 43% or less than half of the full-time firefighters. This is certainly not "normative and persuasive", a standard that has often been quoted as the level of comparator data necessary to support proposals for change at Interest Arbitration. When the three largest services (Toronto, Ottawa and Mississauga), that arguably have the largest operational capacity to deal with the operational concerns raised by the Town are removed, the percentage falls dramatically to only 27% of all full-time firefighters. Across Canada, the overall percentage is less than 40 percent of full-time firefighters working 24 hour shifts and when Toronto is removed, the number drops to less than 25 percent, or less than 1 out of 4 firefighters. This is hardly compelling support.

In any event, the more compelling consideration is the overall number of Municipalities that are not operating on a 24 hour shift, and this reflects that approximately 2/3 of all Municipalities in Ontario, including departments of all sizes. The "normative and persuasive" reality is that imposition of a 24

8

hour shift is not supported based on the Association's data. What the current Chair appears to ignore about the trend are the facts that the Chair of the Quinte West Arbitration Board refused to award a trial and that freely negotiated settlements with three of Ajax's main comparators- Pickering, Clarington, and the City of Oshawa- were concluded during this round of bargaining in Ajax and none of those included the 24 hour trial awarded by the Chair. It is not disputed that the firefighters in Oshawa have worked one 24 hour shift per month for over thirty years, but this is not a valid comparison to what this Award contains and would not raise most ofthe concerns that the Town has presented to this Board. The City of Pickering has agreed to a joint committee to study the 24 hour shift but that has already been done in Ajax with the result that the Management of the Ajax Fire Department would not agree to implement the 24 hour shift trial. The Town, through its' previous meaningful consideration of the 24 hour shift issue and its' resolve to in litigating this matter has clearly demonstrated its' opposition to this shift structure. In the absence of a clearly compelling demonstrated need for change (i.e. clear evidence to demonstrate the health and safety hazards associated with the current shift structure of 10/14 hour shifts as substantiated through expert evidence and the oral testimony of those who have been affected), the Chair should not be overriding the Town's Fire Management's inherent right to manage its' operations.

It is interesting to note that while the Association in the present case, and in negotiations across Ontario, have advocated that the police/fire comparability should be considered beyond the standard comparison of first class salaries, they have not done so with the issue of shift structure. That is likely because police do not work 24 hour shifts. And one can surmise that at

9

least one of the important reasons for that is that the police are not able to sleep during their shift. I find that to be an interesting omission from the normal approach at Interest Arbitration by the Association.

At Page 32, the Chair rejects the evidence regarding safety concerns raised by Dr. Lockley and concludes that: "the evidence does not establish that the 24 hour shift is more hazardous than the 10/14 shift schedule or that it

represented a threat to the health and safety of firefighters, ... " This is an incredible conclusion that purports to reverse the onus by concluding if the Town cannot not establish a health and safety problem, the Association gets its proposed 24 hour shifts. What is even more incredible is that the Chair rejects the expert advice of Dr, Lockley who the Chair accepted as a

qualified expert on human sleep and circadian rhythm. In his opinion letter on the matter Dr. Lockley gave the following unequivocal expert opinion that: "The 10/14 hour rotating schedule currently worked by the Town of Ajax firefighters is substantially better for workplace alertness and

performance, and has greater health benefits than the proposed 24-hour shift." The criticism of Dr. Lockley's opinion centers on the fact that he has not conducted research that involved 24 hour shifts for firefighters. The

Association's entire case is premised on the belief that firefighters will attain sufficient sleep each shift to avoid the consequences that Dr. Lockley

observed in the study of other professions. However, the Association

presented no evidence concerning the amount of sleep achieved by

firefighters currently working the 24 hour shifts in other Municipalities. Nor did the Association present any evidence whatsoever to demonstrate the amount of sleep achieved by Ajax firefighters currently working the 10/14 shifts.

lO

In any event, there is no guarantee of sleep because of the unpredictable

nature of fire fighting. As Dr. Lockley testified that regardless of the

profession biological factors will apply and will impact alertness and

performance. Furthermore, what the Association and the Chair have failed to

appreciate is that the Town must plan its' staffing and operations based on

the worst case scenario -planning based on any other assumption carries

with it significant risk to employee and public safety, among other things.

Accordingly, the only basis for the consideration of the safety and health

issues associated with the Association's proposal must be made on the basis

of not being able to sleep on shift. In this regard, Dr. Lockley's evidence,

and the evidence from the studies relied on by the Town in the presentation

of its' case, clearly demonstrate that 24 hour shifts are not supportable.

After rejecting the expert evidence, the Chair concludes that: " ... considering

all the remaining relevant factors concerning demonstrated need, employee

preference, comparability and replication, we have determined that this is an

appropriate case in which to order that the parties should strike a joint

committee to shape the terms of the trial 24 hour shift schedule ... " Clearly

in the Award, the Chair completely ignores the usual consideration of

demonstrated need as stated above. Furthermore, the Chair has introduced a

new Interest Arbitration principle, that of"employee preference", which is

not only inappropriate, it is simply wrong at law in my opinion.

Alternatively, if the principle of"preference" is to be given consideration,

the Chair has completely disregarded a key consideration called

"Management preference". Management of the Ajax Fire Department has

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given significant consideration to the 24 hour shift. The parties had a joint

committee to consider the issue. After engaging in this process management

determined that a 24 hour shift schedule was neither safe nor appropriate.

Subsequently, Dr. Lockley's opinion letter confirmed Management's

concerns about the safety with the implementation of the 24 hour shift. The

Town has been clear -its' "preference", which is supported with expert oral

evidence and documented scientific evidence unlike the Association, is not

to have a 24 hour shift schedule imposed in Ajax.

The Chair appears to have relied upon the proposition that further research is

required to be able to conclusively say that 24 hour shifts are dangerous for

firefighters before one could conclude that this is the case. With respect, the

reasoning should have been framed so that the conclusion is that further

research is required to be able to conclusively say that the current 10/14 hour

shift schedules are dangerous for firefighters and 24 hour shifts represent a

healthier option (as opposed to alternatives, such as reversing the current

10/14 hour shift schedule so that the night shifts are of a shorter duration as

suggested by the Town in its' submission). It is clear from the evidence of

Dr. Lockley that the limited studies (including those involving Dr. Glazner

which are of no scientific value) available do not support such a conclusion.

I have previously raised with the Chair the issue of liability in the event that

something catastrophic happens as a result of a firefighter having an accident

either on the job or during their commute home following a 24 hour shift

without sleep (according to scientific evidence presented and the testimony

of Dr. Lockley, this person would be operating a vehicle in an impaired

state, equivalent to a BAC of 0.1 0, or 25% more than the legal limit). While

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the members of our Arbitration Board, who imposed the 24 hour shift,

would bear no legal liability, I would suggest that the Town should similarly bear no legal liability as they have attempted to avoid this situation entirely. I would presume, however, that the same could not be said for the

Association and the firefighters themselves who have advocated for this change. Let us hope that this situation is never tested.

The Town has outlined to our Board its' obligations under the Occupational

Health and Safety Act (OHSA). As the Town has noted in its' submissions, it has done what it can to date to avoid the potential risks associated with the implementation of a 24 hour shift trial. It has retained an expert who has advised against the implementation of such a shift. It has completed the "study" phase of the 24 hour shift consideration and was not satisfied as to the health and safety aspects of this different shift structure, among other concerns, and so it did not move forward with it any further- a reasonable conclusion and course of action in my view in light of the information

presented.

However, at this point the Chair's decision will effectively remove the

Town's ability to fulfill its' obligations under the OHSA by effectively prohibiting it from doing what it believes is reasonable in all of the

circumstances - not implementing a shift structure that it believes is not healthy or safe. In essence, the Chair is removing the Town's right pursuant to the OHSA. It is not clear to me that the Chair has the legal authority to remove an employer's ability to satisfy its' obligations under the OHSA, nor is it clear to me, because the Chair has failed completely to address any of these issues in any meaningful way, why he believes that this Board has the authority and the right, at law, to expose the Town to potential liability under

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the OHSA. No doubt, the Town will point to its' efforts to date and this

Award as the basis for its' position that it has met its' OHSA obligations in

the event that an issue arises, but it is unclear to me under what authority the

Chair is prepared to put the Town in that position.

In summary, the Chair has wrongly decided the issue of the 24 hour shift

trial when he:

• awarded it despite the fact that the Association made submissions

but adduced no evidence to prove that there were problems with the

current 10/14 shift schedule;

• rejected the expert evidence of Dr. Lockley who he had qualified as

a sleep expert;

• ignored the criterion of demonstrated need;

• introduced the criterion of employee preference as a new criterion

that has never been accepted by any other Arbitrator in deciding an

issue while at the same time ignoring the criterion of Management

preference;

• ignored the fact that approximately 2/3 of the Fire Departments in

Ontario have not implemented a 24 hour shift;

• ignored the fact that Ajax's local comparators- Clarington,

Pickering and Oshawa- had freely negotiated settlements that did

not include the 24 hour shift that the Association has proposed;

• ignored the fact that three large Ontario Fire Departments

Toronto, Ottawa and Mississauga skewed the percentage of

firefighters working the 24 hour shift in Ontario;

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• relied on the decision of the Arbitrator in North Attleboro'

Massachusetts, U.S.A., even though that Arbitrator acknowledged the validity of the health and safety concerns raised in the evidence ofDr, Lockley;

• relied on the decision of the Arbitrator in Airdrie, Alberta who

heard the same expert evidence presented in our case but was not persuaded about moving from a 24 hour shift arrangement to a 12/12 hour shift arrangement that was not worked by any other Fire Department in Alberta;

• relied on three Arbitration Awards in Ontario by Arbitrator Kevin Burkett on the implementation and/or the continuation of a 24 hour trial even though Arbitrator Burkett did not have the benefit of hearing any expert evidence about the health and safety issues implicit in working a 24 hour shift;

• ignored the fact that the Town has statutory obligations, pursuant to the Occupational Health and Safety Act, concerning the health and safety of the firefighters that it employs.

One of our roles as a Board of Arbitration is to replicate free collective bargaining based on what would happen in a right to strike bargaining regime. There is no doubt in my mind that the Management of the Ajax Fire Department, based on legitimate concerns of health and safety, would have taken a strike to avoid the 24 hour trial that has been imposed by the Chair and ridiculously characterized as a reasonable compromise.

Dated at Toronto, Ontario this 25th day of March, 2013

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'':M. icliae C 'Ritide CC'

Michael Riddell/Employer Nominee

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PARTIAL DISSENT OF ASSOCIATION NOMINEE

I must dissent from the Award with respect to officer differentials and benefits, which

ought in my view to have been further increased to bring them closer to the level of

differentials and benefits in place for firefighters at comparable municipalities. However,

I concur in all other aspects of the Award including the 24-hour shift.

Jeffrey Sack, Q.C. Association Nominee