HomeMy WebLinkAboutMcCabe 95-04-14
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IN THE MATTER OF AN ARBITRATION
BETWEEN
FAMaY AND CHILDREN'S SERVI.c;ES OF THE WAtERLOO REGION
(hereinafter called the "Employerll)
AND
ONTARIO PUBLIC SERVICES EMPLOYEES' UNION. LOCAL 258
(hereinafter called the "Union")
GRIEV ANCE OF .T ANE CODE-MCCABE
(hereinafter called the "Grievor")
BOARD OF ARBITRATION R. J Roberts, Chair
J 1\'IcManus, Union Nominee
P A. Gryseels, Employer Nominee
APPEARANCES
For the Employer' Frances R. Gallop, Esq
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For the Union. Mitch Beven
HEARINGS HELD IN KITCHENER, ONTARIO, ON JUNE 24, 30 AND SEPTEl\1BER
16, 1994
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AWARD
This is a job competition case. Essentially, the Union claimed on behalf of the grievor
that the selection procedure was so riddled with flaws as to require the Board to order are-run
of the competition. The Employer, on the other hand, submitted that while there were some
flaws in the procedure, they were not fatal to the fairness, impartiality and consistency of the
process. It was further subrmtted In the alternative that in the event that the Board concluded
that the flaws did occasIon some unfalrness, no remedy should be awarded because the evidence
demonstrated overwhelmingly that the incumbent was by far the superior candidate. For reasons
which follow, we conclude that the selection procedure was fatally flawed and that the remedy
of a re-run must be awarded
The competition in quesuon was held under the following provision of the Collective
Agreement:
ARTICLE 14 - VACANCIES. PROMOTIONS AL'ID TRANSFERS
14.01 All cases of newly created jobs, vacancy, promotion, and transfer, shall be
based on the following factors:
(a) skill, competence, relevant academic qualifications, and efficiem;y; and
(b) seniority
Where, in the judgment of the Society, the qualifications in factor (a) are
relatively equal, seniority shall govern. Such judgment shall be made in a
fair, impartial, and consistent manner It is understood that the Board of
Arbitration shall not substitute its judgment for the judgment of the Society
as to the relative equality of the qualifications as listed above.
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This is a competition clause under which the most senior candidate only gets the job if he or she
is, In the Judgment of the SocIety, relatIvely equal to a JuOlor competitor The judgment of the
Society is required to be made faIrly, impartially and consistently
In the present case, the grievor was the only candidate with any seniority There were
two other candidates, both of whom came from outside the bargainIng unit and so had no
senionty The job postIng in question was for the position of Records Control Clerk. After
describIng the duties and responsibilItIes of the Records Control Clerk, thIS postIng set forth the
follOWIng qualIfications
The Records Control Clerk is responsible for the record check function, miscellaneous
filIng, file tracking, processing and data entry of bnef services, and administrauon of the
secure storage room where closed case filed and microfilm are stored The Clerk
partIcipates In mIcrofilmmg actIvities, including SOrtlng files for filming, filmIng, and
controlling films Duties also include adrmOlstration of the agency library and arcrnves,
data entry, and some general support duties for the InformatIon UOlt. SWItchboard relief
is part of this pOSItron
Oualifications. Secondary school graduation diploma. One or two years clencal
experience related to filing and record keeping Perseverance and
exceptional attention to detall. Interest In creating and maintainIng
systems to enhance the work of front line staff Above average
ability to communicate and Interact well with a wide variety of
people. Computer data entry skills. Working knowledge of
Wordperfect 5 1 and SWItchboard/reception experience are assets.
It was speCIfied that the closing date for applications was October 12, 1993
At the time of the posting, the pOSItion of Records Control Clerk was vacant. Ms. Betty
Siegfned, the successful applIcant In the competition had been a part-time employee in the
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closely related job of Records Clerk since January, 1991 In this position, Ms. Siegfried was
performing almost every aspect of the Records Control Clerk position, with the exception of data
entry and part of the function of administering the agency library and archives. From the fall
of 1989 until she became the part-time Record's Clerk in January, 1991, Ms. Siegfried had been
a part-time employee in the same department on a microf1lrning project. In all her time in this
department, from 1989 to 1993, Ms. Siegfried reported to Ms. Amy Cousineau, the Manager,
Information and Planning, for the Employer Ms. Cousineau was the hiring manager in the
competition.
Neither of the part-time jobs that Ms. SIegfried had occupied since 1989 had been won
via a competition under the CollectlVe Agreement. There was a type of competition for the
microf1lming job, but when It came to the position of Records Clerk, Ms. Siegfried was simply
shifted into thIS position by Ms. Cousineau.
The grievor, on the other hand, had been employed 10 the unrelated position of Process
Server for approximately 3 years. Her duties consisted of processIng and serving legal
documents, filing them in court; serving notices of hearing; and typing associated affidavits and
letters. The grievor also performed certain clerical duties that included a degree of f1ling;
however, the grievor had Sald in her interview that she had no experience in filing and record
keeping, and obviously, the selection panel was entitled to rely upon her representations in that
regard
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Ms. Cousineau gave extensive evidence regarding the critical nature of the function of
the Records Control Clerk. She stated that records were often needed for evidence in court or
for reference material when the Employer took a case to court under the Child and Family
Services Act. It was emphasized that the position was not "trivial" in nature. The person in this
position, she said, had to have a great deal of credibility with Intake Workers WIthin the
Employer, in the sense of inducing them to rely upon the former's skill and experience in
accepting her concluslOn that a particular record either did or did not exist. Records checks
were performed, Ms. CousIneau said, to look for reasons of child abuse, to help people who
believed they were adopted through the agency, and to ensure that a partIcular foster home was
a safe place for children The Employer performed an average of 500 records checks per
month
To perform a records check, Ms. Cousineau said, the Records Control Clerk needed to
fIrst access the mqUlry system on the System 36 computer to try to match the information
provided by the Intake Worker with any names on the system In thIS regard, Ms. Cousineau
noted that there were between 50,000 and 80,000 records on the system Upon finding a match,
the Records Control Clerk then had to pull the f1.le and any cross-referenced files. If no match
were found, the Clerk had to then go and look in the old card files prior to return.ing to the
Intake Worker
Ms. Cousineau further stated that often the information was needed immediately and the
Intake Worker would stand by the Records Control Clerk while the records check was
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completed. This was the result of a degree of urgency, in the sense that the Intake Worker
needed to know the prior history of individuals before deciding what action to take upon a
particular complaint.
The date entry function was also important, Ms. Cousineau said. For the system to
work, it was necessary to have the correct data In the base. This meant that the Records Control
Clerk had to avoid making errors that needed to be corrected later
As to the records retrieval function, Ms. Cousineau said that thIS also could get
complicated She said that the Employer had 15,000 hard copy files, 200 to 300 rolls of
microfilmed files, and another 1,000 files circulating throughout the offices of the Employer
In order to complete a search for a "match", Ms. Cousineau said, the Records Control Clerk had
to fmd the relevant document. This Involved looking m the Records Room and finding the hard
copy; or, if there had been no contact with the Employer within the last five years, finding the
me on microfilm, and if the file could still not be found, going to a dIfferent computer system
that kept track of any files that have been signed out and CIrculated
Turning to the file sorting and filming function, Ms. Cousineau stated that the Records
Control Clerk also was responsible for ensuring that all files were microfilmed shortly after
being closed. In this process, Ms. Cousineau said, the Records Control Clerk had to prepare
the files by removing extraneous material accordIng to a set of guidelines from the Employer
While the actual microfilming was performed by someone else, Ms. Cousineau said, the Records
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Control Clerk was responsible to see that the files were microfilmed quickly In thIs respect,
Ms. Cousineau said, accuracy was very important to ensure that nothing significant was
discarded.
Another significant responsibility, Ms. Cousineau said, was the co-ordination of other
clerks who assisted the Records Control Clerk on a part-time basis. According to Ms.
Cousineau, the Records Control Clerk was responsible to ensure that someone always was
available to perform the records checks and ensure that the two part-time staff understood the
system and were using the system properly
Finally, !vIs Cousmeau sald that she expected the person In the pOSItIon of Records
Control Clerk to recommend improvements in order to provide the best service possible to the
Social Workers in the Agency She stated that she expected the person in this position to
identify any difficulties and suggest ways to improve them as well as come up with ideas on how
to do thIngs better In this regard, Ms. Cousineau noted that she did not personally work in the
records area on a "hands on" basIS and as a result, she relied on the person in tills position to
make such suggestions and recommendations.
Turning to the interview process, the Interview Committee conSIsted of two management
members, Ms. Cousineau and Ms. Lynn Miceli, a Personnel Officer with the Employer; and,
two bargaining unit employees, Ms. Marie Kapshey, an Accounting/Records Clerk; and Ms.
Shelly Taylor, an Information Officer who reported to Ms. CousIneau and whose work had
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several connections with the records function. Neither of the two bargainIng unit members had
any training in interviewing and selecting candidates for jobs. Both Ms. Kapshey and Ms.
Taylor were very familiar with Ms. Siegfried. Only Ms. Taylor had some possible exposure
to the grievor, having been a part-time typist in the Legal Services Department before she was
hired into her current position.
By the end of the posting period, Ms. Cousineau said, three resumes had been submitted.
She reviewed them and decided that all three should be interviewed The three applicants were
the grievor, Ms. Siegfned, and Ms Zimmer According to Ms. Cousineau Ms. Zimmer was
passed over because she did not present orally very well at the interview; It was not all that clear
that she really wanted to work full-tIme, and there was some question whether she would be able
to handle all of the demands of the position.
Interviews were conducted on the afternoon of October 15, 1993 The questions that
were asked in the lI1terview were developed by the four-person team two to three days before
the interview The questions, however, were not accompanied by any pre-determined
mathematical scoring system According to Ms. Cousineau the only time that scoring systems
were used was post-interview, to assist in deciding between two candidates who were very close.
There were 20 questions. They were as follows
1. Why did you apply for this particular position?
2. Could you talk a little bit about what you know about this position?
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3. Let me tell you a little about various tasks involved in the position. .briefly
review job description.
4. What skills and experience make you suitable for this position?
5. What is your previous experience related to riling and record keeping?
6. Here's a common situation in this job It's 11.50 and you're trying to pull
a number of mes for Cambridge to go in the bag for 12 '00 Then you get a
call from Cambridge wanting an urgent me. What do you do?
7. This position involves a number of repetitive tasks, for example doing record
checks, riling, and sorting iIles for microrIlming. What would that be like for
you?
8 a). How would you respond to a worker who is adamant that a iIle was returned
to the me room, but your records do not indicate this. However, you have
a nagging suspicion that the file might have been returned
8 b) "Vhat kind of things would you do to resolve the situation?
9 This job involves being available to all staff from 9 to 12 and 1 to 5 It is
imperative to this position that the complement person be present at all
times. How does this compare to wbat you are currently doing? How do you
see yourself fitting into that kind of routine?
10 In this position it is necessary to use a variety of computer programs,
including data entry on the System/36, the file tracking system in FoxPro, the
library lists on dBase and the micromm list on WordPerfect. How do you
feel about having to use all those different applications? Can you tell us how
you usually go about learning a new computer application?
II. This job involves a substantial amount of switchboa,rd relief work.
Regardless of what is to be done at your own desk, switchboard is a .priority.
How would you handle this disruption to your day? What do you think
would be the greatest challenge of working at reception?
12. What does working in a team mean to you? How do you feel that you work
in a team situation?
13 Given this will be a new challenging situation for you, what would be your
expectations of supervision, initially and in the long term.
14. How long would you expect to stay in this position?
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15. What do you see as your main strengths? In what areas do you feel
challenged?
16. What do you think your current supervisor would say about you?
17. What do you like most about your current position?
18. What do you like least?
19. Before we conclude,do you have any questions for us?
20. If you were the successful candidate for this position, what would be your
greatest contribution to the service provided by Information Services?
Ms. Cousineau was assIgned to ask questions 1 - 5, Ms. Kapshey, questIons 6-9, Ms. Taylor,
questions 10-14, Ms. Miceli, questions 15-18, and, once again, Ms Courineau, questions 19-20
Not all of these quesl10ns were asked of each candidate. The grievor was asked every
question, however, questions 15, 17, 18 and 19 were not asked of Ms. Slegfned. When asked
why, Mr Cousineau Sald that when it came to Ms. Siegfned, she knew most of the answers that
Ms. SIegfried would make, at least generally, from Ms. Siegfned's work for her
No attempt was made to obtaln the latest performance appraisals or contact the immediate
supervisors of the candidates. Ms. Cousineau stated that this was unnecessary with .respect to
Ms. Siegfried because she, Ms. Cousineau, was her Supervisor and had prepared her latest
appraisal. As to the grievor, Ms. CousIneau acknowledged that neither she nor Ms Miceli was
familiar with the grievor or her performance in her work as a Process Server As to Ms
Taylor, she said, she believed that Ms Taylor was familIar with the grievor's work because of
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her experience working alongside her 10 the Legal Department. She also said that she thought
that Ms. Kapshey, being a bargaIning umt member, might also have had contact WIth the
grievor Ms. Cousineau did not have any actual knowledge of the degree of familiarIty with the
grievor of either Ms. Taylor or Ms. Kapshey
At the conclusIon of the intervIews, the panel remaIned in the room and generally
discussed their assessments of the candIdates. According to Ms Cousineau, this was a general
dIscussion, in the sense that the four panellists were speaking freely At the outset, Ms Zimmer
was discarded as a VIable candidate, and the discussion soon focused upon the relative ments
of the grievor and Ms. Siegfried. The panel talked about the relative qualIficatIons of the
candidates, their skills, competence, efficIency, educatlOn and expenence
This discussion resulted in a unanimous decision in favour of Ms. Siegfried According
to Ms Cousineau, the panel was agreed that on experience and skills, Ms. SIegfned was without
a doubt the better qualIfied As to competence and efficiency, Ms Cousineau said, it seemed
clear that at least WIth respect to the short-run, Ms. Siegfried would be more effiCIent than the
grievor In thIS regard, she SaId, she recalled a reference by Ms. Kapshey to the time that it
would take to learn all the functions in the position, Le., several months
As to education, Ms. Cousineau said, both the grievor and Ms. Siegfried were considered
to be equal. In this respect, she said, the panel did not give any weight to the fact that Ms
Siegfned had a umverslty degree. This was not a qualificatlon set forth in the job postmg and
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was not necessary for the posItion. The final decision was made in that meeting.
At the hearing, it was submitted by counsel for the Union that the foregoing evidence
demonstrated that the competitJ.on was so flawed that a re-run was the only possible remedy
He pointed out a number of mistakes that put the grievor at a unfair disadvantage. These, he
said, were as follows.
1 Ms. SIegfried's Immediate SupervIsor, Ms. CousIneau chaired the interview panel
and was the final deCISIon maker as to who got the Job,
2 Three panel members, two of whom were bargaining UnIt, worked side-by-side
with Ms. Siegfried,
3 The gnevor's SupervIsor was not contacted and the panel had no real knowledge
of the gnevor's capabIlities,
4 Performance appraisals were not reviewed, a defect alleged to be fatal In light of
the fact that the chair of the Panel, Ms. Cousineau, had detailed knowledge of
Ms. SIegfned' s appraisal but did not even check the gnevor's appraisal,
5 There was no marking scheme for the competition, and therefore no objective
measure of relative suitability;
6 There was no separate rankmg of candidates by each Individual panel member;
7 Not all candidates were asked all questions;
8 The two bargauung unit members on the panel were untrained in how to run a job
competition with no real knowledge of what they were supposed to do
The seriousness of these mistakes, counsel for the Union submItted, was demonstrated
in several authonties from both the public and pnvate sectors These included Re ClIpperton
and Ministry of Community and Social Services (1988), Ontario Grievance Settlement Board No
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2554/87 (Watters) (competition invalidated, inter alia, because the interview panel did not review
the appraisals of all candidates and did not contact their supervisors), Re Victoria General
Hospital and Canadian Brotherhood of Railway. TranSllOrt & General Workers. Local 606
(1991) 21 L.A.C (4th) 185 (Nova Scotia, E. K. Slone) (competition invalidated, inter alia,
because model answers to interview questions were not discussed in advance by panelists), Re
Eaton and Ministry of Transportation and Communications (1987), Ontario Grievance Settlement
Board No 0629/85 (Knopt) (competition invalidated, inter alia, because supervisors were not
contacted and one panel1st was the supervisor of an applicant, raising a reasonable apprehension
of bias), Re Leslie and Mimstrv of Transportation and Communications (1981), Ontario
Grievance Settlement Board No 126/79 (Draper) (competition invalidated, inter alia, because
the panel dId not consult the gnevor's supervIsor or review hIS performance appralsals and two
panelists had been the supervisors of another applicant), Re Savarimuthu and Ministry of Health
(1991), Ontario Grievance Settlement Board No 2702/90 (Dissanayake) (competition
invalidated, mter alia, because certaIn applicants were credited with experience by VIrtue of
having been unilaterally appointed to the job in question on an "acting" basis, a consideration
that was impermissible because It effectively would permIt the employer to circumvent the
seniority provisions of the collecuve agreement), and, Re Family and Children's Services of the
Waterloo Region and OPSEU. Local 258 (1994), Unpublished Award (Brandt) (a case. involving
the Employer and grievor herein, where the competition was invalidated because the grievor was
denied an interview on the basis of a word-processing test, without any consideration of her
academic qualifications, consultation of her supervisor or review of her performance appraisal)
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Counsel for the Employer conceded that the grievor's supervisor was not contacted, her
perfonnance appraisals were not reviewed, and the immediate supervisor of the successful
incumbent, Ms. Cousineau, was the hiring manager on the interview panel. It was conceded that
the successful incumbent was credited with over two years' experience gained by virtue of
having been appointed by Ms. Cousineau to fill the closely related job of Records Clerk. It also
was conceded that there was no objective marking scheme for the questions that were asked in
the interview and the successful incumbent was not asked all of the questions while the grievor
was.
These flaws, it was submItted were inconsequential because the evidence showed that they
did not affect the outcome of the competItion Reference was made to Re Peters and Ministry
of Revenue (1991), Ontario Gnevance Settlement Board No 1423/90 (Kaplan) (failure to review
the grievor's personnel me and contact the grievor's immediate supervisor were not fatal
mistakes because the evidence showed that if these inquIries had been made, they would not have
affected the outcome of the competition), Re Bent and Ministry of Transportation (Bentn (1989,
Ontario Grievance Settlement Board No 1733/86 (Fisher) (competition was not invalidated
because there was no showing on behalf of the grievor that numerous and not insignificant flaws
would have affected the outcome), and, Re Bent and Ministry of Transportation (Bent In (1989),
Ontario Grievance Settlement Board No 0031/88 (Knopf) (flaws in a pre-screening process in
which the grievor was eliminated from a field of 21 applicants did not invalidate the competition
because the eVIdence showed that even if the flaws had not occurred the grievor would not have
ranked with the higher calibre candidates who were interviewed)
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Considering these submisslOns, the Board must conclude that the competition was
seriously flawed. We are parocularly troubled by the fact that the successful incumbent, Ms.
Siegfried, was given credIt for over two years' experience she had gained as a part-time Records
Clerk - a closely related position into which she had been unilaterally shifted by the hiring
manager, Ms. Cousineau. Allowing thIs consideration to pay a central role in the decision-
making process - as it did here - seems to us to be impermissible because, as noted in Re
Savarimuthu, supra, It effectively would permit the Employer to circumvent the semority
provisions of the Collective Agreement.
We are also troubled by the role played by Ms. Cousineau In the hiring process. Having
been Ms Siegfried's immediate supervIsor since 1989, Ms CousIneau was thoroughly familiar
with her work performance. ThIS degree of familiarity was demonstrated in Ms. Cousineau's
testimony She stated that she did not ask Ms SIegfried all of the questions that had been
prepared for the interview because she knew most of the answers that Ms. Siegfned would give,
at least generally, from Ms. Siegfried's work for her Ms. Cousineau had also prepared Ms.
Siegfried's latest appraisal. Yet no effort was made to obtain any information from the grievor's
supervisor or review the grievor's latest performance appraisal.
This lack of balance was more than sufficient to create a reasonable apprehension of bias
in the selection process. See Re Eaton, supra. It is important here to note that we stop short
of concluding that there was actual bIaS on the part of Ms Cousineau We do not find actual
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bias. But a reasonable apprehension of bias seems to us to be all that is necessary to jeopardize
the results reached by a selection panel.
When these flaws are considered in light of the other flaws pomted out by counsel for
the Union, the conclusion IS inescapable that this competItion cannot be allowed to stand It
must be invalidated and set aside. This, then, brings us to the question whether nevertheless,
the grievance must fail for the alleged lack of a showing that the flaws might have affected the
outcome of the competItIon
When an arbitration board IS asked to make such a determinatIon, it is essentially being
requested to place Itself In the shoes of the selection panel and determine from the evidence
before it whether the grievor might have won an unflawed competition. This is a request that
must be approached with caution, lest an inexpert board of arbitration be seen to be attempting
to usurp the managerial expertise of the Employer ThIS is perhaps why boards of arbitration
are usually seen to make such determinations in cases like Bent II, supra, where there were
fewer flaws and the gnevor was far down in a field dominated by several high-calibre
candidates.
In the present case, there appears to be even more reason for caution This flows from
the unique wording of the fInal sentence of ArtIcle 14 01 (b) of the Collective Agreement, which
reads as follows.
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It is understood that the Board of Arbitration shall not substitute its judgment for
the judgment of the Society as to the relative equality of the qualifications as listed
above. ...
In Re Family and Children's Services of the Waterloo RegIon, supra, Professor Brandt
observed in obiter dictum that by virtue of this sentence the power of a Board of Arbitration
under the collective agreement was restricted to ordering a re-run of a competition.
Professor Brandt said, In pertinent part:
It bears noting at the outset that this clause is somewhat unique in that, while
providing for a competition as the basis for determining which among a number of
competing applicants should be awarded the position, it goes further to expressly
limit the role of Boards of Arbitration hearing job posting grievances. Thus, were
we to enter upon a consideration of the relative equality of competing candidates and
reach conclusions thereon we would be acting in excess of our jurisdiction and in
direct contravention of Article 906 requiring us to conime the exercise of our
powers to those set down in the collective agreement.
Our jurisdiction is limited to making a determination of whether the Society has
exercised its judgment in a "fair, impartial, and consistent manner" If we are
satisfied that the decision reached by the Society was in accordance with a process
that met those prescribed standards, our task is done. If, on the other hand we are
not so satisfied the scope of the relief that we are entitled to order is restricted by
the concluding language of Article 14.01 At most we can declare the process to fall
short of what is required under the collective agreement and direct that the
competition be run again with various conditions attached. ..N. at 2-3
The final sentence of ArtIcle 14 01 (b) was said to be a limItation upon the jurisdiction of a
Board of Arbitration und~r the Collective Agreement to go farther than to determIne whether the
Employer exercised Its judgment in the competition in a "fair, impartial and consistent manner"
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In light of the foregoing considerations, we decline to detennine whether, on the
evidence, the grievor might have won an unflawed competition. We do not lay claim to the
expertise necessary to perrmt us to overlook the numerous and fundamental flaws in the present
competition and make our own independent assessment of the relative equality of just two
candidates, the grievor and Ms. Siegfried. Moreover, a serious question has been raised
whether under the wording of Artlcle l4 01 (b), this arbitrahon board even possesses the
jurisdiction to make such a detennInation
It IS hereby declared that the compeuuon hereIn was not conducted 10 a "fair, impartial
and conSIstent manner" as reqUIred by Article 14 Ol (b) of the Collective Agreement. In lIght
of thIS, the competition must be re-run.
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DATED at London, Ontano, this ,I-{ day of ~ 1995
erA If (
RQjL:rts. Chair
it d tr'fl (vrla.nW!. "
I concur/Eli:!lloit
J McManus, Umon Nominee
I ~/dissent I ( P Il Gr1~ee Is I,
P A. Gryseels, Employer Nominee