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

Complainant

• and -

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

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE COMPLAINANT

Mark Drakos, Jim Allen, Stephen Jurkus, and James Taylor

FOR THE EMPLOYER

Jennifer Richards Ministry of Government Services Legal Services Branch Counsel

CONFERENCE CALL

February 28, 2014

Decision

1This decision deals with the request of the complainants, four Operational Managers at the Elgin Middlesex Detention Centre, for further direction in respect of the Board’s decision of February 14, 2014 granting additional time, until May 31, 2014, to the employer to implement the Board’s decision of December 18, 2013, and giving the complainants a formal role in the employer’s proposed consultation process.

2The December decision dealt with the merits of the complaints in regards to a change to their rank titles from Lieutenant to Sergeant and an associated change in uniform. The 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, until 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 Board remained seized of issues related to implementation.

3The decision of December 18 also 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. The employer is pursuing that route, but wished to engage in more systematic consultation with the Operational Managers before implementation and sought an extension of time to do so. In the decision dated February 14, the Board granted the extension requested by the employer. As well, the Board gave direction as to the role of the complainants in the employer’s consultation process, and continued to remain seized of implementation issues. In respect of those directions, the employer sent a formal invitation to the complainants advising them of the people to whom they could make written submissions by March 13, and reserving a 45 minute slot on March 17 for a representative of the complainants to make a submission to the Operational Managers Standing Committee, who will be discussing the issue of rank and title on that day.

4The complainants have asked for further direction as to their participation, and/or that the decision of February 14 be rescinded due to the employer’s non-compliance with the earlier directions. They also made submissions during the conference call as to their concerns with the employer’s intentions and process.

5The complainants suggest in their e-mails that the employer is in violation of the Board’s direction at Paragraph 5 of the February 14 decision, which made reference to the fact that the complainants wish representation on the committee through which the employer consults Operational Managers about this issue, given that they all 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. Prior to issuing the February 14 decision, the Board considered these submissions, as well as those of the employer, which included the submission that the employer was not looking to disrupt the composition of the current Operational Managers’ Standing Committee. Paragraph 9 of that decision contains what the Board ordered. Although I considered the complainants’ desire for a seat on the committee, I did not grant that request. Instead, I directed that the complainants have a different role in the consultation process. I set out that role, which was 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. The fact that the employer has not offered a seat on the Operational Managers’ Standing Committee is not in breach of the February 14 order.

6The complainants state that the employer has failed to provide them with any timelines in regards to the period of consultation and implementation in order to meet the May 31, 2014 extension to the effective date of the Board’s decision on the merits. The employer has given the complainants the names of two Labour Management Liaisons to whom they may make the written submissions, has indicated that the submissions will be taken forward for consideration, and given them a time line of March 13, 2014 at 1600 hours to receive them. As noted above, the employer has also advised them of a meeting on March 17 of the Operational Managers’ Standing Committee, and they are aware of the May 31, 2014 implementation date for the Board’s decision. I find that the employer’s actions in respect of the written submissions and advising the complainants of the March 13 and 17 time lines comply with the Board’s direction of February 14. The objective was that the complainants be given an opportunity to make submissions in time to do so in a meaningful way before the consultation was concluded, and that objective is met with the March 13 date to receive their submissions, in advance of the March 17 meeting with the standing committee.

7In the February 14 decision, I also directed that if the complainants wished to do so, they might name a representative who will be entitled to make a presentation to the Operational Managers’ Standing Committee before that committee makes any decision or gives any final input to the employer in regards to issues related to rank title and uniform. Although an invitation to make such a presentation on March 17 was extended on February 20, 2014, by an employer representative, the complainants contest the 45 minute time limit, asserting that the spirit of the order of February 14 was to include a member of the complainants to provide constructive information and consultation as part of the ongoing process. The complainants also note that the Operational Managers’ Standing Committee is not a bargaining agent, nor does it have the final say as to the rank, title or insignia for the Operational Managers’ group. They also assert that it is not fully representative of the Operational Manager group as it does not put forward all of the Operational Manager’s views and opinions on current issues. As well, some of the complainants have had issues with the process for nominating and electing representatives to the standing committee in the past.

8There is no dispute that the Operational Managers’ Standing Committee does not have a formal role as bargaining agent for the Operational Managers, or any final say about the rank, title or uniform issues. As to the complainants’ issues about the manner of representation of the Operational Managers, or how the committee members are elected, employer counsel suggested those issues needed to be raised through the co-chairs of the committee, and that they were not part of the issues flowing from the implementation of the Board’s decisions. The employer indicated that it is not intending to consult by way of the sub-committee of the Operational Managers’ Standing Committee which deals with uniform issues, but with the broader standing committee.

9The Board’s direction of February 14 did not provide specifics as to the presentation, as the structure of the consultation being planned by the employer was less defined at the point of the February 12 conference call on the subject. Nonetheless, I find the employer’s invitation for a 45 minute presentation to the Operational Managers’ Standing Committee to comply with that direction. I find that to be a sufficient opportunity to make a presentation, in addition to the written submissions, on which there is no limit as to length. Given other issues discussed in the conference call, discussed below, the employer is further directed, if it has not already done so, to provide a copy of the Board’s three decisions on this complaint to members of the Operational Managers’ Standing Committee, in time for them to review them prior to providing input as to the rank title of the Operational Managers. It is not necessary or desirable to make any findings about the structure of the committee or its process for bringing forward issues or filling seats in the context of this decision as such matters are not necessary to the implementation of the Board’s decisions.

10During the most recent conference call on February 28, the complainants also raised issues concerning the manner of consultation and the lack of information as to the employer’s agenda, underlining that it would be simplest just to return the situation to the previous one where the Operational Managers were referred to as Lieutenant or Captain. One of the complainants questioned the need for any consultation as the original decision was clear as to its effect. As one of the e-mails about the consultation process sent to the complainants by the employer indicated that the title Sergeant is still being considered as one of the options for the rank title for Operational Managers, the complainants are concerned that at the end of the consultation, they will be back in the situation that prompted their complaint in the first place.

11Employer counsel confirmed that Sergeant is one of the options on which feedback is being elicited as part of the consultation, as it was one of the titles that showed up as part of a “jurisdictional scan” of similar organizations done prior to the decision to change the Operational Managers’ title to Sergeant and it is part of the full range of available options for rank title for the first level of management.

12In the December decision on the merits, the Board declared the decision to reduce the complainants’ rank to sergeant to be of not force or effect as it was in breach of the Statement of Ethical principles, as well as being arbitrary. Given the province-wide nature of the rank title issue, the Board gave the employer time to implement the Board’s decision to rescind the decision to change the title to Sergeant, by delaying the effective date of the decision by sixty days, which was extended by the February 14 decision until May 31, 2014. I wrote at paragraph 55 of the December decision that:

i. The practical effect of that is that the complainants’ rank title and that of their colleagues is returned to Lieutenant or Captain with the corresponding uniform as of that date. Leaving them with their former rank would be, on the evidence before me, the most straightforward way to maintain things as they were before the breach occurred. Nonetheless, if the employer is still interested in consistency of title as well as uniform, I do not foreclose the possibility that the employer may be able to formulate an alternative that would be consistent with the complainants’ terms and conditions of employment and the findings of this decision.

13As the information exchanged during the most recent conference call left the impression that reducing the Operational Managers’ rank to Sergeant again at the end of the period allowed for implementation is being considered, it appears appropriate, in the interests of clarity and reducing the potential for further litigation, to reiterate the findings of the December decision that the reduction in rank to Sergeant was objectively and subjectively degrading and in breach of the Statement of Ethical Principles, one of the Operational Managers’ terms and conditions of employment. Taking the same step again is not something that the Board considers to be an alternative to leaving the Operational Managers as lieutenants and/or captains that would be consistent with their terms and conditions of employment, which include the prohibition against degrading treatment in the Statement of Ethical Principles, or consistent with the findings of the December decision. As the discussion in the decision made clear, there were and are non-degrading alternatives which include harmonizing the titles at the level of either lieutenant or captain, which the evidence established were equivalent in rank in the context of their use to refer to Operational Managers, or removing the rank titles and using the classification title, which is Operational Manager. There are no doubt other solutions which would not downgrade the Operational Managers’ rank or title.

14I 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, February 14, 2014 or this decision.