ONTARIO LABOUR RELATIONS BOARD

OLRB Case No: 3113-17-M

The Corporation of the City of Sault Ste. Marie, Applicant v Unifor

Local 1359, Responding Party

BEFORE: Maurice A. Green, Vice-Chair

APPEARANCES: Mark H. Mason, Peter Niro, Robert Rushworth, Sarah

Iaconis for the Applicant, Antony Dale, Fred Bond, Laurie Lessard-
Brown, Mary Casola, Andy Savela for the Responding Party

DECISION OF THE BOARD: April 6, 2018

1. This is an application filed by The Corporation of the City of

Sault Ste. Marie (“the City” or “Employer”) pursuant to the Ambulance
Services Collective Bargaining Act, S.O. 2001, c.10 (“the Act”) seeking
a determination by the Board of various unresolved aspects of an
Essential Ambulance Services Agreement (“EASA”), that the parties
have been attempting to bargain pursuant to their obligations under
section 3(1) of the Act.

2. The application was filed on February 27, 2018. Negotiations

to renew their expired collective agreement (April 1, 2014 – March 31,
2017) have been ongoing since March 20, 2017. Conciliation has
occurred and a No Board Report was released on February 11, 2018,
thus placing the responding party Unifor Local 1359 (“Local 1359”) in a
position to commence a strike as of 12.01 a.m. February 28, 2018.

3. In a decision dated February 27, 2018 the Board, differently

constituted, noted the City’s position that the existing EASA from 2016
was deficient, and failed to meet the requirements of section 4 of the
Act. The Board observed that:
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3. ... A brief perusal of the Agreement makes it appear very

likely that this is the conclusion to which the Board will come
unless there is other and better information available.

4. Although the City did not file an application to prevent Local

1359 from commencing a strike, the Board in its February 27, 2018
decision noted the penalties that could be imposed if a strike in fact
commenced contrary to Section 12(1) of the Act, (i.e. that an
appropriate EASA was not in effect). In actuality, Local 1359 did not
commence a strike and have quite properly postponed any strike
pending the outcome of this application.

5. The matter on the merits was originally to be heard on March

12, 2018 but was postponed to April 4, 2018. It should be noted that
Local 1359 promptly filed its reply to the application on February 27,
2018. As a result of the importance of maintaining, to the extent
possible, the ongoing process of collective bargaining and
commencement by either party of the right to strike or lock-out, the
Board is issuing a bottom line decision with detailed reasons to follow.

6. The parties placed before the Board a draft EASA, following

further mediation the day of the hearing. However, the parties failed to
agree on two important issues and two of lesser magnitude. The first
major difference between the parties is the number of ambulance
workers who are required to provide essential services during a strike.
The second major disagreement is whether section 4(2) of the Act
should be interpreted so that the Employer must include in the numbers,
who will be required to provide essential services during a strike, those
members of management who possess ambulance worker/paramedic
qualifications.

7. It is manifest that if the Board accepts Local 1359’s submissions

as to the second question, this would have an impact upon the Board’s
decision concerning the first issue. Section 4(2) provides that:

(2) The number of ambulance workers that are

required to provide essential ambulance services shall be
determined without considering whether other persons are
available to provide essential ambulance services.

Local 1359 advised that it was not contesting the constitutionality of

section 4(2). Rather, and put succinctly, Local 1359 argues that where
there are two reasonable statutory interpretations of the meaning and
effect of section 4(2) of the Act the Board should adopt the one which
better complies with Charter values, applying the principles enunciated
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by the Supreme Court of Canada in Doré v. Barreau du Quebec

(Attorney-General), [2012] SCC 12, and also applying the SCC’s
decision in Saskatchewan Federation of Labour [2015] 1 SCR 245,
where a provision comparable to section 4(2) was before the Court.
Local 1359’s submissions raise an aspect of the Doré decision that has
apparently not to date been addressed. It is for this reason, as well as
providing a rationale for my overall bottom line decision, that detailed
reasons will follow.

Decision

8. I am rejecting Local 1359’s position that section 4(2) requires

that I include the possibility that the four Commanders (supervisors),
who possess ambulance worker/paramedic qualifications, should be
included in the numbers of ambulance workers who are required to
provide essential services. In other words, as will be delineated in my
reasons, section 4(2) directs that the Board shall not include those
outside the bargaining unit, who possess the necessary qualifications,
when establishing the numbers of ambulance workers in the unit who
shall provide essential services.

9. As regards the numbers of ambulance workers that should be

designated to provide essential services the City adopted the position
that there should be eight paramedics scheduled to work on day shifts
and eight scheduled for the night shifts. The Employer utilizes a 12 hour
shift. The expired EASA provides for eight employees for the day shift,
and six for the night shift. There are two persons to each ambulance.
Local 1359 submits that the numbers should be six members for the day
shift and four members for the night shift.

10. The normal scheduling prior to the No Board Report was for 10
members to work during the day and eight members at night. Thus,
the difference is between maintaining four ambulances during the day
and night as opposed to five during the day and four at night during
normal operations. Local 1359 proposes three ambulances during the
day and two at night, i.e. six persons on days and four at night.

11. The applicant presented statistical evidence to justify its

position. Local 1359 viewed those statistics differently. My analysis of
those statistics and rationale for my finding will follow. Meanwhile, I
find that for the purposes of section 1 of the draft EASA (provided at
Tab 7 of the applicant’s brief of documents) there shall be eight (8)
paramedics scheduled to work on day shifts and six (6) to be scheduled
on night shifts.
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12. The third issue placed before the Board was the number of
paramedics that the Employer can rely upon for any unexpected
absences on either the day or night shifts. The Employer is proposing
that such number be those numbered seventeen (17) through twenty-
four (24) on the agreed upon list. Namely, eight members. The Union
submits such number should be numbers 17 – 20, namely four persons.
For reasons to be provided later I find that the number to be used for
section 1(v) of the draft EASA (provided at Tab 7 of the Employer’s
document brief) shall be six (6), i.e. numbers 17 – 22.

13. The final matter in dispute is section 6 of the proposed EASA

referred to above. The provision currently provides that:

The Union shall ensure that all ambulances and fire vehicles
are allowed to pass through picket lines without being
stopped.

The City wishes to amend the language in order to avoid any

complications by requiring that:

The Union shall ensure that all ambulances, (ERVs), and fire
vehicles are allowed to pass through picket lines without
being slowed, stopped or interfered with in any way.

14. As noted by Local 1359 the above provision bears no

relationship to those matters required to be placed in an EASA, but
rather are matters relating to picket line conduct that the parties have
agreed to place in the EASA in principle. It seems eminently reasonable
that ERVs (1 person emergency vehicles) be added for the sake of
clarity. It is also sensible to add a reference to “slowing”, as opposed
to just stopping, emergency vehicles. However, I see no need to add
“or to interfere with in any way”. The City has ample ability to file the
relevant application with the Board if improper picket line behaviour
occurs. Given the fact that the parties have agreed to place such a
provision in the EASA, and given the fact that section 9(d) permits the
Board to “give any other directions the Board considers appropriate”, I
find no jurisdictional barrier in including such amended language.
Further, the Board has already noted in its decision of February 27, 2018
(paragraph 6) the penalties for engaging in an unlawful strike.

15. Thus, the Board orders that:

a) The parties sign the Amended EASA attached as

Appendix “A” to this decision.
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16. The Board retains jurisdiction to address any problems of

implementation. Further, the parties have the ability to trigger section
10(2) of the Act enabling them to apply to the Board for an amendment.

“Maurice A. Green”
for the Board
 APPENDIX "A"
ESSENTIAL SERVICES AGREEMENT

BETWEEN

THE CORPORATION OF THE CITY OF SAULT STE MARIE

&

UNIFOR Local 1359

Date:

The following is the Essential Services Agreement between the parties

as required pursuant to the Ambulance Services Collective Bargaining
Act:

PREAMBLE

Whereas the City of Sault Ste. Marie is contracted to provide Land

Ambulance Services on behalf of the District of Sault Ste. Marie Social
Services Administration Board (DSSMSSAB).

Whereas the Union and the City have negotiated previous collective
agreements in accordance with the Ontario Labour Relations Act.

Whereas the parties wish to ensure the provision of essential

ambulance services in the event of a strike or lockout.

Whereas the Union and City agree that the maintenance of essential
services during a strike or lookout is the joint responsibility of the parties
due to the fact that the absence of such services poses an immediate
and serious danger to the health and safety of the public.

Whereas the Union and the City agree this Essential Services
Agreement will be incorporated as an Appendix in the new collective
agreement and remain in effect in the event of a strike or lookout from
the date of signing.

The parties therefore agree to the following:

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1. In the event of a strike or lockout as defined under the Ontario

Labour Relations Act, it is understood and agreed that those
employees required to work under this agreement will perform
their duties as outlined in Item #2 below. There will be eight (8)
paramedics scheduled to work on day shifts, the start times of
which shall be determined by the Employer. There will be six (6)
paramedics scheduled to work on night shifts, the start times of
which shall be determined by the Employer.

(i) The Union will proffer a list titled 'Paramedics for Schedule'
of twenty-four (24) paramedics, numbered one (1) through
twenty-four (24), for every calendar date.

(ii) No less than twelve (12) hours prior to the commencement

of a strike, the Union will provide a list as noted in Item #1
(i) above for all of the first fourteen (14) possible calendar
dates of the strike. Immediately following every seventh
(7th) day of a strike, the Union will provide a list as noted
in Item #1(i) above for the subsequent seven (7) days not
yet provided. (This will ensure that the Employer always
has no less than seven (7) days and no more than fourteen
(14) days of lists for scheduling and planning purposes.)

(iii) The Employer will schedule the paramedics numbered one

(1) through eight (8) to twelve-hour day shifts as noted
above and will determine the start time of each paramedic.

(iv) The Employer will schedule the paramedics numbered nine

(9) through sixteen (16) to twelve-hour night shifts as noted
above and will determine the start time of each paramedic.

(v) The Employer will rely upon the paramedics numbered

seventeen (17) through twenty-two (22) for any
unexpected absences on either the day or night shifts. If
needed, the Employer will call upon the paramedics
numbered seventeen (17) through twenty-two (22) in the
order listed.

(vi) Should a strike be scheduled to commence in the middle of

a night shift (i.e. at midnight), the Employer shall be
provided a list of the eight (8) paramedics that are
remaining on duty to finish the night shifts.
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(vii) The City agrees there shall be no lockout of employees so

assigned.

2. The parties agree that the dispatch of land ambulance in the event
of a work stoppage will be in accordance with the current
operating procedures, practices and definitions of the Ministry of
Health priority codes and dispatch from the Central Ambulance
Communication Centre.

(i) Paramedics will respond to all Priority 3 and Priority 4 calls

in accordance with all normal procedures.

(ii) Paramedics will respond to Priority 2 calls when a delayed

or missed treatment can adversely affect the patient’s
condition or well-being. The return portion of all scheduled
Priority 2 calls will be completed. Examples of Priority 2
calls which will be responded to include, but will not be
limited to; oncology treatments, cardiac diagnostic
procedures, dialysis treatment, hospice care, air ambulance
or commercial aircraft departures or arrivals.

(iii) Priority 1 routine deferrable transfer requests will not be

responded to by the paramedics for the duration of the legal
strike.

(iv) There will be no additional paramedic staffing beyond that

listed in Item #1 above for OHL hockey games or other
special events.

(v) No paramedic student(s) shall be allowed on site during the

strike or lockout.

(vi) Only Unifor members shall be scheduled and staffed to the

same ambulance as another Unifor member.

3. For the purposes of this Agreement, “essential ambulance

services” means:

(a) those services defined as “essential ambulance services”

pursuant to section 1(1)(a) of the Ambulance Services
Collective Bargaining Act;

(b) work that is “incidental” and essential to a service described

in (a) above (as per section 1(1)(d) of the Ambulance
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Services Collective Bargaining Act) which includes work that

is required to be performed by the Ambulance Act and
Regulations thereunder and/or all applicable Ministry of
Health and Long Term Care Standards.

(c) work that is performed on or in connection with an

ambulance to protect health and safety (as per section
1(1)(e) of the Ambulance Services Collective Bargaining
Act) which includes the normal and customary cleaning of
emergency lights, tail lights and head lights on the
ambulance and other exterior cleaning when the
ambulance’s exterior colour and/or markings are no longer
readily visible and that the vehicle is not clearly observable
as an ambulance, and deep sanitizing the ambulance in
accordance with normal practice so as to ensure the
ambulance is in a sanitized state;

(d) restocking of ambulances after calls and ensuring that

medications are current and not expired;

(e) regular vehicle checks and fueling of vehicles;

(f) bargaining unit members shall not be used to relieve

Commanders during a strike or lock-out.

4. The provisions of the Collective Agreement shall continue to apply

to employees working pursuant to this EASA during a legal strike
except Article 2.02.

5. The Union agrees that there shall be no reprisals by the Union or

its members against employees who are required to work during
a legal strike. The Union further agrees that neither the Union nor
its members shall interfere with or attempt to interfere with the
work performed by employees during a strike. Employees
required to work during a strike will be allowed to pass through
picket lines and will not be slowed, stopped or interfered with in
any way.

6. The Union shall ensure that all ambulances, (ERVs) and fire
vehicles are allowed to pass through picket lines without being
slowed or stopped.

7. It shall be understood and agreed by the parties that in the event

of an emergency or potential emergency as declared by the Fire
 -5-

Chief or CACC, the Fire Chief or designate may direct any or all
paramedics to work whether scheduled or not to respond to such
emergency. Paramedics shall be required to report for duty and
work in response to such emergency and shall be compensated
for time worked with respect to such emergency in accordance
with the collective agreement.

In the event an emergency is declared by the Fire Chief or

designate due to two (2) priority four calls waiting without a crew
enroute or one (1) priority four call waiting with the expectation
that a crew will not be enroute within twenty (20) minutes, the
employer may initiate “up staffing”. Such additional staff will be
called based on the list provided by the Union as noted in #1.
Those paramedics called in shall remain on duty until the
emergency situation ceases to exist. The paramedics shall be
compensated for their time worked.

Signed this day of April, 2018

_________________ ____ ___________________

For City of Sault Ste. Marie For Unifor Local 1359