P-2012-1193, P-2012-1196, P-2012-1517, P-2012-1518

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Mark Drakos, Jim Allen, Stephen Jurkus, James Taylor

Complainants

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE COMPLAINANTS

Mark Drakos Jim Allen Stephen Jurkus James Taylor

FOR THE EMPLOYER

Jennifer Richards Ministry of Government Services Legal Services Branch Counsel

CONFERENCE CALL

February 12, 2014

Decision

1This decision deals with the request of the employer for additional time to implement the Board’s decision of December 18, 2013. That decision upheld, in part, the complaints of four Operational Managers (OM’s) at the Elgin Middlesex Detention Centre (EMDC) in regards to a unilateral employer initiative which changed their rank titles from Lieutenant to Sergeant and brought about an associated change in uniform.

2The decision declared the decision to reduce the complainants’ rank to Sergeant to be of no force and effect, but delayed the effective date of that declaration for sixty days, which would expire on February 16, 2014, in order to give the employer time to implement the decision, given that the disputed change to sergeant was made throughout the province’s correctional institutions. The employer asks for additional time, until May 31, 2014.

3The decision of December 18 provided that, if the employer was still interested in consistency of title as well as uniform, the employer might be able to formulate an alternative to leaving the Operational Managers as Lieutenants or Captains that would be consistent with the complainants’ terms and conditions of employment and the findings of that decision. In submissions to the Board made during a recent conference call, employer counsel submits that the employer is interested in pursuing that consistency, but wishes to engage in more systematic consultation with the Operational Managers before implementation. While the employer wishes more time to avoid any multiple changes and minimize confusion, counsel wished to assure the Operational Managers involved that they were not “dragging their feet”, and have been working on implementation since the decision was rendered. However, the intervening holiday season meant that some of the people involved in the discussions about implementation were not available for all of that time, and the nature of the subject matter meant that the process needed more time. In the circumstances, the employer asks for the consent of the complainants, or an order from the Board, extending the time for implementation to May 31, 2014.

4The complainants are willing to consent to the time for consultation, but wished to revert to the title of Lieutenant and the uniform that goes with it in the time line provided by the Board. They submit that the instruction to wear the sergeant’s epaulettes was abrupt, and without consultation, forcing them to come to the Board to complain. They note the last minute nature of the employer’s request for more time, and submit that they should have been approached about it earlier, and that the consultation should have been done within the time provided. Despite counsel’s assurances, they are concerned that the employer merely wishes to delay compliance with the decision. The complainants note that returning to the situation before the complaint would not be a “no man’s land” for rank and title, as the decision of the Board established that there was a pre-existing system of rank and title.

5Further, the complainants wish representation on the committee through which the employer consults Operational Managers about this issue. All of the complainants have over 25 years in the Ministry, believe that they have valuable input to offer, and want to be part of the change process that flows from their complaints.

6Employer counsel submitted that the employer was developing a broader approach to consultation, attempting to do something systematic and organized, which would not be limited to the Operational Managers’ standing committee. Counsel did not have instructions on the question of complainant representation in that process, as the issue only arose during the conference call. However, counsel indicated that the employer was not looking to disrupt the composition of the current standing committee, which has elected representatives on it and questioned the Board’s jurisdiction to make any order in that regard. Mr. John Hosegrove, an Operational Manager, who was present for the conference call, and sits on the Operational Managers’ standing committee and a sub-committee about uniforms, indicated that the committee is currently composed of both elected and appointed members, but is moving through attrition to being fully elected.

7The Board has considered the above-noted submissions in light of the fact that they relate to the implementation of the Board’s December 18 decision. The employer is essentially asking for a further order as to remedy, with additional time to engage in consultation with the Operational Managers as part of a process of implementation of the decision. In those circumstances, what is appropriate and within the Board’s jurisdiction is related to the basic principle that remedies are intended to put the parties in the position, as much as possible, that they would have been in if there had been no breach of the complainants’ terms and conditions of employment. As well, the complainants have a direct interest in how the decision on the complaints they brought is implemented.

8In this regard, the Board finds it appropriate to grant the request for further time for broader consultation with the Operational Managers, as that might well have been part of the employer’s process for deciding on the rank and uniform issues in a way that would have avoided the breach of the complainants’ terms and conditions of employment found in the Board’s decision.

9In any event, the consultation process itself is not opposed, and therefore the only issue in that respect is whether there ought to be an order as to the complainants’ role within it. As the planned consultation flows directly from the implementation of the decision resolving their complaints, I find it quite appropriate to allow the complainants a formal role in that process, despite the fact that it is not currently fully defined. I direct that a representative of the complainants be entitled to make written submissions to any group or person through which the Operational Managers are consulted in regards to the issues involved in the implementation of the Board’s decision, and that they be given notice of the time lines involved at the earliest opportunity, so that they will have time to do so in a meaningful way before the consultation is concluded. As well, if the complainants wish to do so, they may name a representative who will be entitled to make a presentation to the Operational Managers’ Standing Committee on the subject before that committee makes any decision or gives any final input to the employer in regards to issues related to rank and uniform flowing from the Board’s decision. They are to be given notice of a time to do so with sufficient time to prepare for this as well.

10The complainants also ask that the implementation of the Board’s decision in respect of the uniform epaulettes not be delayed, so that they might commence wearing Lieutenants’ bars again in a few days, as they have been looking forward to doing. Although the Board appreciates the fact that further delay in a final resolution may be very frustrating, it appears to be in the best interests of all, in the long run, if the final resolution is done in a considered way, and on a provincial basis. Therefore, it is the Board’s order that its decision of December 18, 2013 will take effect on May 31, 2014, rather than at the end of the sixty day period named therein.

11I will continue to remain seized to the extent necessary to resolve any further dispute over the implementation of the Board’s decision of December 18, 2013, or this decision.