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HomeMy WebLinkAbout1987-2093.Couture and Goddard.90-02-28% ONTARIO EMPLOY&DELA CO”RONNE cRowNEMPLo”EEs DEL’ONTMIO GRIEVANCE CQMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Couture/Goddard) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE: FOR THE GRIEVOR: FOR THE EHPLOYER: HEARINGS: N.V. Dissanayake Vice-Chairperson 3. Anderson Member D. Wallace Member P. Lukasiewicz Counsel Gowling, Strathy a Henderson Barristers & Solicitors C. Slater Senior Counsel Human Resources Secretariat Mangement Board of Cabinet November 21, 22, 1988 February 13, 1989 November 24, 1989 2 DECISION These are two identically worded grievances dated September 25, 1987, filed by Mr. D. Couture and Mr. B. Goddard. Mr. Goddard was represented by Union Counsel. Mr. Couture chose to represent himself at the hearing. The factual background relevant to the grievances is as follows. The grievors were employed as couriers at the Whitby Psychiatric Hospital. For some years, the hospital's transportation needs were met through two departments. The Transportation Dept. was headed by a supervisor and employed eight full time drivers classified as Motor Vehicle Operator I ('WV0 I"). MVOI's were required to have a valid "D & F1' licence which authorised them to operate larger vehicles. They did much of their driving outside the hospital premises. The Central Dispatch Dept. also had its own supervisor and employed five full time couriers, (including the two grievors) classified as Manual Worker. The couriers operated smaller vehicles and did most of their driving inside the hospital property. They were not required to possess a I'D & FIB licence. In March 1985, the Employer carried out an audit of its transportation services. The audit report combined with ~time studies conducted led the Employer to the conclusion that the operation was quite inefficient. It disclosed that 3 compared to the amount of work available, there were too many employees. One of the problems revealed was that at times one group (couriers or drivers) would be overburdened, while the other group had no work to do. Yet because of the difference in classification, one group could not be utilized to assist the other group. This led to *lslackl' among employees. Instances of employees playing cards or washing personal cars on work time were cited. As a result, a decision was made to amalgamate the two departments under a single department (called "Traffic and Distribution Dept.") headed by one supervisor. A decision was also made that the distinction between couriers and drivers should be eliminated and that all vehicle operators should be brought under a single job specification classified as Motor Vehicle Operator. It was determined that a total of eleven MVO's would be required. Since there were eight MVO's already employed, only three additional MVO's were required. Since the courier position was being abolished, that left the five couriers without jobs. The Employer decided that the three additional MVO's would be selected from among the five displaced couriers. At the time only three out of the five couriers had a valid "D & F" licence, which was a requirement for the MVO position. The Employer decided to temporarily assign all five couriers as acting MVO for a six month period under article 6 of the collective agreement, to enable them to obtain the 4 necessary qualifications and training to be MVO's. It was announced that at the end of the six month period a competition restricted to the five couriers would be held. The Employer encouraged those couriers who did not have their 'ID & F" licence to obtain it and offered them assistance, except financial assistance. All five couriers accepted the temporary assignments as acting MVO and as per article 6 received the higher rate of pay applicable to that classification. Those who did not have the IfiD & F" had restricted jobs, while the others carried out the full range of the MVO functions. On August 26, 1987 three vacancies for MVO I were posted. Interviews were conducted and three of the five were selected to fill the vacancies. The two grievors were the unsuccessful candidates. Shortly after the results were announced, the grievors were offered positions as cleaner II in the Housekeeping Dept. They declined those positions and filed these grievances. The grievors were then laid-off under article 24. The three successful candidates,Mr. Joseph Scott, Mr. Andrew Stirling and Mr. Allan Sytnyk were given appropriate notice of this proceeding and were present. Mr. Scott and Mr. _ -. 5 Stirling participated to a very limited extent, but Mr. Sytnyk chose to be present as an observer only. The position taken on behalf of the two grievors differ in some significant aspects. Mr. Couture submitted that the employer had several alternate options which would have enabled it to retain all five couriers. Specifically, he pointed out that part-time couriers performed a significant amount of work. It was his argument that if the Employer got rid of the part-timers, it would have enabled all five full- time couriers to secure positions as MVO I. The Board wishes to dispose of this submission at the outset. The evidence establishes that the part-time couriers did the bulk of their driving after hours, during week-ends, and as replacements for sick or vacationing full-time couriers. Thus the Employer's position that it is impractical to eliminate the part-timers is very convincing. Quite apart from that, we agree with Employer counsel that the use of part-time vs. full-time employees is a matter of organization and complement and therefore an exclusive management function under section 18(l) of the Crown Emolovees Collective Barsainina Thus the issue is beyond this Board's jurisdiction. 6 The main submission made on behalf of Mr. Goddard is based on article 24.2.1 of the collective agreement, which reads: 24.2.1 Where an employee is identified as surplus he shall be assigned on the basis of his seniority to a vacancy in his ministry within a forty (40) kilometre radius of his headquarters provided he is qualified to perform the work and the salary maximum of the vacancy is not greater than three percent (3%) above nor twenty percent (20%) below the maximum salary of his classification, as follows: - a vacancy which is in the same class or position as the employee's class or position; - a vacancy in a class or position in which the employee has served during his current term of continuous service; or - another vacancy. The dispute is as to whether article 24 has any application to the grievors. The Employer takes the position that it does not. This is on the basis that the salary maximum of the vacancy (MVO I) is greater than three percent above the maximum salary of the grievers' classification (Manual worker). The Union sees things differently. Counsel submits that the last position held by the grievors was that of acting MVO, which carried the same maximum salary as that of the vacancy, and that therefore the comparison should be between those positions and not between the position of courier and MVO. ,lly ruled at the hearing that art The Board ora icle 24 has no application in the circumstances. Under article 24.1 the conditions which might trigger the article are set out as I*... shortage of work or funds or the abolition of a position or other material change in organisation . ..'I. What led the Employer to identify the grievors as surplus was the abolition of a position and an organizational change, namely the abolition of the positions of courier. It cannot be said that there was an organisational change or abolition of a position involving "acting MVo". 7 Besides, the grievors although temporarily assigned as acting MVO under article 6, remained classified as Manual Worker (the classification that applies to couriers) throughout. Despite their temporary assignment as acting MVO, their classification did not change at any time. The comparison made in article 24.2.1 is ,between the salary maximum of the vacancy and the salary maximum of *'his classificatiorP. Since the grievers' classification remained that of a manual worker, the Union's submission must fail. In summary, the Board concludes that article 24 had no application to the grievors and that therefore it was not improper for the Employer to post the three vacancies under article 4. 8 Next the Board turns to the issue of whether the competition was flawed. In this regard there were two distinct attacks made. Firstly, it is alleged that the interview panel was biased against the grievors. Secondly, it is claimed that the competition was flawed because the minimum standards expected by this Board in running a competition were not met by the Employer. The Bias allesation The interview panel consisted of Ms. Patricia McCallister, Mr. Glen Wilson and Ms. Karen Clark. Ms. McCallister at the relevant time held the position of Manager of Material Control & Systems at the hospital. In that position, she had responsibility for a number of departments including the Transportation Department and the Central Dispatch Department. Mr. Wilson became Supervisor of the Central Dispatch Dept. in June 1987. In that position he was the direct supervisor of the grievors. Ms. Clark was a Personnel Officer at the Human Resources Branch of the Hospital. The bias al ,legation is directed mainly at Mr. W 'ilson. It is however suggested that his bias would have influenced the other two members of the panel. As far as the grievor Goddard is concerned, in his examination-in-chief no evidence 9 suggesting any bias was adduced. However, under cross- examination by Mr. Couture, Mr. Goddard agreed that Mr. Wilson may have been prejudiced against him because he had had several lVrun-insll with Mr. Wilson. He felt harassed by Mr. Wilson and testified that on one occasion Mr. Wilson told him "1 will be on your ass until you are finished here" or words to that effect. under cross-examination by Employer counsel Mr. Goddard concededthatthe "run-ins" involved disagreements between Mr. Wilson and-himself as to what he should or should not be doing. Mr. Goddard did not grieve against Mr. Wilson's alleged conduct. Mr. Couture testified that he also had "a couple or run- ins." with Mr. Wilson. Mr. Couture felt that Mr. Wilson disliked him because he was a "trade union man". Once again, under cross-examination Mr. Couture conceded that the Vun- ins" were work related. Mr. Wilson, as supervisor, was reprimanding Mr. Couture for conduct which Mr. Wilson felt was improper. In addition to the foregoing evidence, Mr. Couture called Mr. Robert Laws, a driver. He testified that sometime after the posting of the competition but before the interviews, Mr. Wilson told him that Mr. Couture and Mr. Goddard "were the ones who will be let goSV. Mr. Wilson during his testimony could not recall such a discussion with Mr. Laws, and 10 testified that it is unlikely that he would have had such a discussion about two employees with another employee. Finally, one of the successful candidates, Mr. Andrew Stirling, testified that he obtained permission from Mr. Wilson and Ms. McCallister to use a ministry vehicle for the road test to obtain his "D &F!* licence. Mr. Wilson recalled Mr. Stirling asking for permission. But according to him, he told Mr. Stirling that he had no authority to give permission and advised Mr. Stirling to go to a higher authority. Ms. McCallister could not recall giving Mr. Stirling consent to use a ministry vehicle and testified that if Mr. Stirling used a vehicle, she was not aware of it. The Board cannot infer any prejudice from the "run-ins", Mr. Wilson had with the two grievors. The evidence is that upon taking over as supervisor oft the Central Dispatch Department, Mr. Wilson was very unhappy with the way the department was operating. He imposed a number of rules and policies which restricted the freedom the employees had enjoyed previously. Quite understandably, this did not make him very popular among the employees. The evidence is that the grievors were not the only employees who had run-ins with Mr. Wilson. These alleged "run-ins" were simply the result of Mr. Wilson's attempts to impose his view of what is appropriate on the employees. It is apparent that Mr. Wilson . . is not one to mince words when he wanted to make a point. While some may not agree with his management style there is no indication that Mr. Wilson was singl.ing out the grievors for harassment. While Mr. Wilson has had his differences with the grievors, they were not unique to the grievors. It would take much stronger evidence of bias before a competition can be vitiated. Chiasson, 262179 (Kruger). It is possible, and even probable that Mr. Wilson had formed an unfavourable opinion about the two grievors prior to the running of the competition. However, this opinion was based upon his observations of the employees' work performance and attitude. It will not be realistic to expect a supervisor to :-.~ti: not form such opinions about his employees. As long as the opinions are not based upon improper or irrelevant considerations, such as malice, racial discrimination or anti- union animus, that does not establish bias. There is not an iota of evidence to suggest that Mr. Wilson had any improper motivation and particularly that he discriminated against Mr. Couture because of his trade union involvement. The comment by Mr. Wilson that he will be on Mr. Goddard's ass until he was finished there was made in the presence of a trade union representative, Mr. Lloyd Levesque in the course of a complaint stage meeting relating to a grievance arising out of concerns expressed by Mr. Wilson about Mr. Goddard's work performance. While the language 12 used by Mr. Wilson may be questionable, Mr. Levesque testified that he understood the comment to mean '8pull up your socks or you will be in trouble". There can be no inference of bias against Mr. Goddard from that incident. Despite Mr. Wilson's inability to recall such an incident, we accept Mr. Laws testimony thatMr.Wilson told him that the two grievor's would be the one's "to be let goI'. However, we are not prepared to conclude that Mr. Wilson had prejudged the competition. Such a comment was highly inappropriate and is further evidence of Mr. Wilson's unusual management style. However, in our view that comment can only be taken as a prediction which Mr. Wilson made on the basis of his knowledge of the candidates. While we strongly disapprove a member of a selection panel making such a comment, in the particular circumstances here, we cannot conclude that the statement is evidence of a prejudgment and that the subsequent interview process was a sham as suggested. We have also concluded that Mr. Stirling was granted permission to use a ministry vehicle for the road-test. However, that is not evidence of favouritism towards Mr. Stirling. The evidence is that the Employer decided to extend all assistance to the employees to obtain their 'ID & F" licence except financial assistance. There is no evidence that anyone else sought permission to use a ministry vehicle .L.l and was denied. In the circumstances, it will be a long leap to conclude that allowing Mr. Stirling to use a ministry vehicle for the road test is evidence of favouritism towards him. In summary, the grievors have failed to establish that the selection panel was biased. Counsel for the Union submits that the competition process was flawed. It is his contention that the interview process was designed to select the three top candidates and that that was improper. In his view, the competition should have had the limited objective of determining which of the candidates had the minimum qualifications for the vacancies. Once that is determined the appointments should have been made in accordance with seniority. Counsel relies on Simard, 33182, (Roberts); Hill & Campbell, 492-493183 (Roberts); Tsianq, 1055/85 (Kirkwood); and Loebel, 331/82 (Verity). Counsel is correct to the extent that these cases stand for the general proposition that the Rmployer has an obligation under article 24 to assign a position coming within the description in that article to a surplus employee, if such employee is qualified to do the work. However, there is a critical distinction between those cases and the one before us. In each of the cases relied on, the grievor was found to 14 be entitled to the protection of article 24. In contrast, the grievors here are not so entitled because they did not meet the "3 percent" requirement. Once article 24 is inapplicable the Employer has a right, and indeed an obligation, to post the vacancies in question under article 4 and select the best candidates for the positions. Counsel for the Union further submits that the competition process is flawed in any event because the Bmployer did not meet the requirements set out by the Board. He relies on MacLellan and DeGrandis 506181 (Samuels). In that case the Board observed that "the jurisprudence of this Board has established various criteria by which to judge a selection process" and went on to list six criteria. CriteFia number four is "All the members of a selection committee should review the personnel files of all the applicants". Counsel contends that this requirement was not met by the Employer and that that is a fatal-flaw. Mr. Wilson was not questioned as to whether he reviewed the personnel files of the candidates. Ms. Clark testified that while the personnel files were not reviewed as part of the selection process, all three panel members had reviewed them during the discussions leading up to the re-organisation. She felt that the only pertinent information in the files, namely the driving records and attendance abstracts, were 15 extracted and considered during the selection process. The evidence is uncontradicted that there had been frequent turnover in the position of supervisor of the Central Dispatch Dept. and that no performance appraisals had been done in the recent past. Ms. McAllister also conceded that the personnel files were not reviewed as part of the selection process. However, she testified that she had reviewed the files "within a few months" of the interviews as part of the reorganisation review. She testified that she was familiar with the performance appraisals on file because she had participated in the process. Under cross-examination she admitted that she aid not pay much attention to the performance appraisals because she "wasn't going to rely on past history. I wanted to be more objective". She agreed that she mostly relied on her opinion of the candidates and that of Mr. Wilson and also considered the complaints received against the candidates by third parties. While the Board has, as a general rule required that members of a selection panel should review the personnel files of the candidates, it has not applied this criteria mechanically to invalidate competitions. For example in Saras, 457f85 (Swan) the panel had not reviewed the personnel files of the candidates. While observing that it would have been 16 preferable for the panel to have reviewed the files, the Board held that in the particular circumstances the deficiency was not fatal. The Board observed that the candidates were given an opportunity to provide detailed information in their job applications and concluded that the grievor was not done any great disservice by the omission. Similarly in Simmons, 483182 (McLaren), the Board upheld a selection process despite the panel's failure to review the personnel files because "there would appear to be little information which would have been made available that was not otherwise in the candidates* application form or known to the interview panel." While Counsel for the Union suggests that Ms. McAllister made a deliberate decision to ignore the personnel files, under re-examination she explained the response she gave under cross-examination. It was her opinion that there was little pertinent information in the files other than the driving records and attendance abstracts. She specifically felt that any performance appraisals in the files would have been not very useful because they were outdated and prepared by short- term acting supervisors. In the case at hand, the selection panel included the candidates' immediate supervisor (albeit for only eight weeks) Mr. Wilson and also the next higher superior, Ms. McAllister. The evidence is that all three panel members were familiar 17 with the contents of the personnel files and had reviewed them a few months earlier as part of the re-organisation. They reviewed as part of the selection process, what they considered were the only relevant information in the personnel files, namely, the driving records and attendance abstracts. The candidates filed applications and had the opportunity to bring any pertinent information to the panel's attention. There has been no suggestion that there was anything else on the personnel file of either grievor, not known to the panel members, which would have assisted the panel in the selection process. In the circumstances, the omission by the panel to review the complete personnel files as part of the selection process is not fatal. The Board cannot conclude that there was a lack of sufficient pertinent facts for the selection panel to make an informed decision. The selection process was far from being perfect. However, as the Board observed in Saras, (m), "it is possible to pick holes in almost any process run by mortal human beings". We have concluded that the process as a whole was not unfair and that the panel made a sincere and rational effort to assess the relative merits. We cannot find that the procedure used was so defective as to vitiate the whole competition process. 18 Having regard to the foregoing, these grievances are hereby dismissed. Dated this 28th day of February, 1990 at Hamilton, Ontario N.V.Dissanayake Vice-Chairperson I‘- D. Wallace Member