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HomeMy WebLinkAboutLapoint 94-09-26 IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR SUPPORT STAFF EMPLOYEES) (the "Union") - AND - GEORGE BROWN COLLEGE (the "College") AND IN THE MATTER OF THE GRIEVANCE OF ERNEST LAPOINT (OPSEU FILE NO. 93G350) BOARD OF ARBITRATION Robert D. Howe, Chair Sherril Murray, Union Nominee Rene St. Onge, College Nominee APPEARANCES For the Union Donald K. Eady, Counsel Ed Jordan Ernest Lapointe For the College Michael J. Kennedy, Counsel Alison Critchley For the Third Party Jeff Santos, Incumbent Hearings in the above matter were held in Toronto, Ontario on May 26, September 8, and September 9, 1994. The grievance, dated AWARD August 17, 1993, which has been referred to this Board of Arbitration (the "Board") for determination in these proceedings alleges that the grievor, Ernest Lapointe, "was not given proper consideration for Job Competition #93-140, Clerk, General D" and that he "was not given proper consideration for [his] seniority under Article 17.1.1 under the [September 1, 1992 to August 31, 1994] Collective Agreement". That article provides: 17.1.1 Consideration - Bargaining Unit Employees When a vacancy occurs and employees within the bargaining unit at the College apply, the College shall determine the successful candidate based on the qualifications, experience and seniority of the applicants in relation to the requirements of the vacant position. Where the qualifications and experience are relatively equal, seniority shall govern, provided the applicant has the necessary qualifications and experience to fulfil the requirements of the position. The College need not consider probationary employees. The Union also relies upon Article 17.1 of the Collective Agreement, which provides: 17.1 Notices Notice shall be posted of a vacancy in a classification covered by the Agreement for a period of five (5) days at each Campus and, at the same time, shall be sent to other locations of the College. No outside advertising for the positions shall be conducted and no employee shall be hired from outside the College until the position has been posted for the said five (5) days. Such notice shall contain the classifications, payband, hourly rate range, current Campus location, current hours of work, current shift(s), and an outline of the basic qualifications. Such notice shall be posted in appropriate locations accessible to employees. For the purposes of this Section, reference to days shall exclude Saturdays, Sundays, and statutory holidays. Copies of all posted vacancies shall be sent to the Local Union President at the time of distribution for posting. The relief requested in the grievance is that the grievor "be given the position as outlined in Job Competition #93-140" and "current bank rate of interest on all retroactive pay". The parties agree that the Board has been duly constituted, and that it has jurisdiction to hear and determine the grievance. Jeff Santos, the successful applicant for the position in question, was duly notified of the hearing and of his right to participate in the proceedings as an interested party. He was in attendance during some portions of the proceedings, but elected to remain an observer. Five persons were called as witnesses during the three days devoted to the hearing of this matter. In addition to their testimony, the Board has before it fifteen exhibits which were entered during the course of the proceedings. In making the findings and reaching the conclusions set forth in this award, the Board has duly considered all of that oral and documentary evidence, as well as the able submissions of counsel. The Board has also assessed what is most probable in the circumstances of the case, and considered the inferences which may reasonably be drawn from the totality of the evidence. The job in dispute was posted by the College on June 25, 1993. The qualifications specified in the job posting were: - Secondary school graduate or equivalent with additional courses in business procedures and accounting.- Three to five years related experience as a cashier and general retail experience. - Excellent communication, organizational and interpersonal skills. - Demonstrated diplomacy, professionalism and ability to work under pressure and with minimal supervision. The duties of the position were described as follows in the job posting: - Oversees function of the Retail Store - Responsible for coordination of all business functions. - Records and processes all sales of products and ensures deposits are balanced. - Responsible for all merchandising activities including assisting with packaging and labelling products. - Responsible for housekeeping and ensuring the store is kept in an appropriate manner. - Sets up internal systems including maintaining files suitable for audit and refund purposes. - Deposits other funds such as hospitality sales. - Performs other related duties as assigned. The Position Description Form for the posted job provides the following breakdown of the position's duties and responsibilities: Approxi mate % of Time Annuall Y 1. Responsible for co-ordination of all 30% all business functions. a. Recording all sales of products. b. Ensuring deposits are balanced and ready for pick-up. c. Filling out daily sales report and liasing [sic] with accounting thereon. d. Process order for customers. 2. Responsible for all merchandising 3O% activities. a. Assist with packaging and labeling products. b. Responsible for setting up and arranging display cabinets. c. Responsible for ordering packaging materials. d. Responsible for ensuring appropriate stock rotation. 3. Responsible for housekeeping and ensuring 10% the store is kept in an appropriate manner. 4. Responsible for setting up internal systems 20% in the office. This includes maintaining files suitable for audit and refund purposes. 5. Responsible for depositing other funds such 5% as hospitality sales. 6. Other duties as assigned. 5% There were two external and three internal applicants for the position. The applications were screened by the College's Manager of Employment and Career Services, Alison Critchley, and by the supervisor of the posted position, Tony Lennie, who at the time of the posting was Manager of Financial Services and Acting Controller. They concluded that all three of the internal applicants should be interviewed for the position. In accordance with College Policy and Procedures regarding recruitment, the interviews were conducted by an ad hoc selection committee (the "Committee") comprised of Ron Hatton (the College's Food Service Manager), Marilou Martin (who at the time of the posting was an Early Childhood Educator and President of the Union's Support Staff Local at the College), Mr. Lennie, and Ms. Critchley. The Committee met on July 29, 1993 to formulate the questions to be asked during each of the interviews, and to interview the three internal applicants for the position. The Union takes no exception to any of the nine questions which were asked of the applicants, other than the parts of question number three pertaining to food product handling experience and food product knowledge (the impugned portions of which have been underlined by the Board for purposes of emphasis): 3. Customer service is a large component of the position, as well a._~s product knowled.qe. Could you give us an example of a difficult customer service problem and how you would resolve it? Would you do anything differently, looking back at that experience? Would being the only person in a retail office present any difficulties for you? Describe your knowledge and interest in food products, handling, etc. It is the Union's position that the College violated Article 17.1 of the Collective Agreement by considering the applicants' food handling experience and knowledge of food products in determining who should be awarded the position. In support of that position, counsel for the Union noted that there is no reference to such knowledge in the job posting (or in the Position Description Form). As indicated by the Divisional Court in Canadian Food and Allied Workers Union, Local 175 v. Great Atlantic and Pacific Co. (1976), 76 CLLC para. 14.056, the Board "must see to it that the provisions of the collective agreement have been complied with". Article 17.1 (as quoted above) requires, among other things, that the notice of vacancy contain "an outline of the basic qualifications" of the position. Although the job posting does not expressly mention food handling experience and food product knowledge, it does refer to overseeing the "function of the Retail Store" and to having responsibility "for all merchandising activities including assisting with packaging and labelling products". Moreover, Mr. Lapointe, who "shadowed" the "Clerk, General D" position for a period of two weeks during June of 1993, was clearly aware at all material times that the Retail Store sold a variety of food products, and that food handling experience and knowledge of food products would be advantageous in performing some of the duties of the position. As noted in Re Mount Sinai Hospital and Ontario Nurses' Association (1991), 13 L.A.C. (4th) 230 (Haefling), "once having determined and published the position requirements on a job posting, it is not open to any employer simply to alter the position requirements at will during the currency of the posting and selection procedures .... "However, the instant case is clearly distinguishable from that case in which the employer relaxed or ignored the posted requirement of "three to five years' I.C.U./C.C.U. experience" in awarding the position to an individual who lacked such experience. The instant case is more analogous to Fanshawe College and Ontario Public Service Employees Union (Doughty), (April 19, 1994) unreported (Brent), in which the majority wrote, in part, as follows in rejecting the Union's claim that the selection process was fatally flawed because the employer relied upon a matter which was not in the job posting, namely, leadership skills, in choosing between two candidates for the position: There is no doubt that the job posting did not mention that the successful applicant would have to assume Lead Hand responsibilities. This case is not like Northern Electric [(1972), 1 L.A.C. (2d) 51 (Palmer)] where the posted job was not the job required. In this case the Lead Hand responsibility was in the job description available to the applicants. Moreover, the evidence ... shows that the griever clearly knew and understood before applying for the job that there were Lead Hand responsibilities involved .... The griever clearly knew what job he was applying for, and the College was filling the job it told the griever would be filled. Accordingly, although it might have been preferable for the implicit desirability of food handling experience and food product knowledge to have been made more explicit in the job posting, we are not persuaded that the College violated Article 17.1 of the Collective Agreement in the circumstances of this case by taking those matters into account in awarding the job. It is also the Union's contention that the College violated Article 17.1.1 by awarding the job to Mr. Santos rather than to the grievor. In this regard, it is the Union's position that the qualifications and experience of the grievor and Mr. Santos are relatively equal. The grievor completed Grade 10 in Manitoba, thereby obtaining what at that time was the equivalent of an Ontario Grade 11 education. He graduated from barber school in 1963, and in the early 1970's passed a pre-university English course and a sociology course at the University of Toronto. He also took a computer literacy course (in 1984) and WHIMIS training (in 1993) at the College. Although he learned basic bookkeeping at high school, he has never taken any additional courses in business procedures and accounting. Prior to commencing employment with the College, Mr. Lapointe gained some retail sales experience selling dental supplies, furniture, and men's clothing. He was also "in charge of the cash" in the latter position. The grievor was hired by the College in September of 1970 as a shipper and receiver. Most of his working time at the College has been devoted to traditional shipping and receiving functions. However, he had some involvement in setting up filing systems for keeping track of various matters such as purchase orders, work orders, and student locker issuance and retrieval. He also gained some experience running a cash register in respect of payments received from students regarding their uniforms, and some additional cash handling and balancing experience in respect of funds received for items sold through the Manpower Bookstore, as well as for products generated by certain College programs, such as frozen meat produced by the College's meat cutting program. He has also made bank deposits in respect of such payments during the vacation periods of the individual normally responsible for making those deposits. After receiving notice of the possibility of his position being made redundant, Mr. Lapeinte was permitted to "shadow" two positions. As noted above, one of the positions which he "shadowed" for a period of two weeks during June of 1993 was the position to which these proceedings pertain. By observing the position and personally performing some aspects of it during that two-week period, the griever was afforded an opportunity to determine whether it was a job which would be of interest to him. Although he was not exposed to the full pressures of the job (due to the fact that his "shadowing" occurred during the summer when the programs supplying the store were not fully operational, and due to the further fact that some of the duties and responsibilities of the position were not yet in place at that time), that "shadowing" provided him with an opportunity to observe and perform a number of aspects of the job. Accordingly, it is also of some relevance in assessing the griever's qualifications and experience (although much less relevant than the six months' experience which the grievers in OPSEU (Liblik/Scipnek) and The Crown in Ri,qht e__f Ontario (Ministry of Transportation), (1993) unreported (G.S.B. File 2525/91), obtained by performing during acting assignments the job in question in those proceedings). It appears from the totality of the evidence that the grievor has most if not all of the necessary qualifications and experience to fulfil the requirements of the "Clerk, General D" position which forms the subject matter of this arbitration. Thus, if the Collective Agreement contained a provision requiring the College to award the job to the senior applicant having the qualifications and experience necessary to perform it, the grievor might well be entitled to it, in view of the fact that Mr. Santos has much less seniority than the grievor. However, that is not the type of clause contained in the Collective Agreement. As indicated above, Article 17.1.1 provides as follows: When a vacancy occurs and employees within the bargaining unit at the College apply, the College shall determine the successful candidate based on the qualifications, experience and seniority of the applicants in relation to the requirements of the vacant position. Where the qualifications and experience are relatively equal, seniority shall govern, provided the applicant has the necessary qualifications and experience to fulfil the requirements of the position. The College need not consider probationary employees. [emphasis added] As noted in Niagara College and Ontario Public Service Employees Union (Perenack), (September 24, 1991) unreported (Carter), that provision "contemplates a competition between applicants for a posted position. Greater seniority, therefore, only becomes relevant if it can be established that experience and qualifications are relatively equal." See also Fanshawe College, supra, and Consumers Glass Company Limited and Aluminum, Brick & Glass Workers, Local 269, (December 15, 1986) unreported (Shime). In the instant case, the Board is satisfied that the posted job was properly awarded to Jeff Santos on the basis of his superior qualifications and experience. Mr. Santos' educational qualifications include an Ontario Secondary School Diploma, an Ontario Secondary School Graduate Diploma in Advanced Studies, and a Culinary Management Diploma which he received from George Brown College after successfully completing its School of Hospitality's two-year Culinary Management program. In addition to his experience at the College as a supply clerk in the School of Hospitality's Issue Control Centre (and as a "Student Ambassador" for the College's Continuing Education and Liaison Office), Mr. Santos worked for seven summers at Canada's Wonderland, where he was promoted from a position in which he prepared and served food to the park's guests (at various restaurants operated by the Food Service Department) to a pre-managerial position whose duties included accurate cash handling and supervising line staff, and where he was subsequently further promoted to the position of Resale Trainer-Clerk, whose responsibilities included training new and re-hire staff in proper cash handling and proper guest relations. Although the extent of Mr. Santos' retail sales experience does not exceed that of the grievor, it was much more recent and involved working under pressure in a retail sales environment which more closely approximated that of the College's Retail Store than any of the retail sales environments in which the grievor was employed. Moreover, Mr. Santos' educational qualifications are substantially superior to those of the grievor. Although Ms. Martin viewed Mr. Santos' College Diploma in Culinary Management as being of little if any relevance to the posted job because (in her words) "most of the people who come out of that are chefs", it is clear from the totality of the evidence that the Culinary Management program includes not only nutrition courses, but also courses pertaining to accounting, marketing, personnel, and human resources. Thus, in addition to being a secondary school graduate, Mr. Santos has a diploma from a two-year College program which includes "additional courses in business procedures and accounting", as required by the job posting. Counsel for the Union further submitted that the job awarding procedure in the instant case was flawed because the Committee did not take performance appraisals into account. In this regard we respectfully agree with the view expressed in Centennial College and OPSEU (Goldin), (1990) unreported (Brent), that performance appraisals can in some circumstances be a source of relevant information regarding qualifications and experience. However, in the instant case we are satisfied that taking performance appraisals into account would not have eliminated the substantial disparity between the qualifications and experience possessed by Mr. Santos and those possessed by the grievor. Thus, having regard to all of the evidence and the submissions of counsel, the Board is satisfied that the grievor's qualifications and experience are not relatively equal to those of Mr. Santos. Since Mr. Santos has superior qualifications and experience, the College did not contravene the Collective Agreement by awarding the posted job to him rather than to the grievor. Accordingly, the grievance is hereby dismissed. DATED at Toronto, Ontario this 26th day of September 1994. Robert D. Howe Chair Iconcur. "Sherril Murray" Union Nominee Iconcur. "Rene St. Onge" College Nominee