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HomeMy WebLinkAboutPorter 93-07-30,I~a~,, ~ c~~oo~ 111 Richmond Street West Suite 500 Tel: (416) 287-63?2 August 31, 1993 Mr. George Richards O.P_S.E.U. 100 Lesmill Road North York, Ontario M3B 3P8 Re: Humber College and O.P.S.E.U. in the matter of John Porter Dear Mr. Richards: Enclosed please find a copy of the Award for the case mentioned above, as well as a copy of my Dissent. Yours very truly, Jane C. Gdmwood JCG/lm Encl. (18) 610/I00~ X¥& Ig:gI g6/IC/90 In the Matter of an Arbitration Between: Humber College (Employer) Ontario l~ublic Service Employee~ Union (Union) And In the Matter of John Porter Arbitrator: H. Brian Keller ~mployerNo~nee: A1 ~erritt Union Nominee: Jane Grimwood AppearanceB: Fort he Employer: Diane Gee For the Union: George Richard~ Hearing: Toronto, December 18, 1991 ~nd JL%ne 3, 1992, March 25, April 1, May 17, 1993. 6'1:0/~:00~ AYE CC: - 2 - TAe grievor seeks to be awarded the position of Supervisor of Building Maintenance pursuant to a competition h~ld for that position. The position ha~ been awarded to Francesco Inf=nti. ~r. Infanti was given ~rd party notice oft he hearing, appeared and participated. The position of Supervisor of Building Maintenance is in the Physical Resources Building Department. The in~%u~bent reports to the Superintendent of ~uildings. The current Superintendent of Buildings is Mr. Bruce Bridgeford. The former Supervisor of Building Maintenance w as Hr. Jakob Beck. The current department, resulte~ in 1985 from an amalgamation of two other ~epar~ments - Capital Works an~ Caretaking ~n~ Building ~aintenance. Prior to the amalgamation Mr. Infanti had been employed in the Building Maintenance Department an4 was supervised by F~r. Beck. Mir. Porter ha~ been in the capital Works and Caretaking Department and worked for Mr. Bridgeford. Both Messrs. Infanti and Porter were lead hands in their respective ~epartments. Following amalgamation in 19S8 both remaine~ as - 3 - lead hands and both reported directly to Mr. Beck. Because of their reporting relationship ~r. Bridgeford was in daily Contact with Mr. Beck. Mr. Beck retired in December 1990, although his last day of work was aroun~ the middle of October. In September his position was posted. Between his last day of work in October and his official retirement ~r. Infanti re~laced him. Both)ir. Porter and Mr. Infanti had at times filled in for ~Lr. BeCk although on the evidence it appeared that Mr. Infanti replaced h~ signiflcantly more often. According to Mr. Beck that was because Mr. Infanti showed more initiative and requested the extra responsibility. Mr. Infanti and Mr. Porter were among those who applie~ for the position and following the competition ~r. Infanti was selected. ~r. Porter grieved. The matter was settled by rerunning the competition. As the issued raised in the grievance was the ability of the panel to assess the applicants the local union presidentMr. Howard ~ayne was added to the selection panel. Mr. Palrnewas given the opportunity to review all of the questions to be used in the competition rerun and apparently was satisfied with them although he did add one additional question. 6TO/tO0~] /'¥~ CC:~T C6/T~/90 - 4 - There were three candidates for the second competition - Mr. Infanti, Mr. Porter and Mr. Doug Vance. At the time of the competition Mr. Vance had slightly more than 40 years seniority, · Lr. Porter around 37 years seniorityandMr. Infanti about a year less than that. Following the rerunS. Infanti was confirmed as the successful candidate. Both ~_r. Porter and Mr. Vance grieved but Mr. Vance decided not to pursue his grievance because the job he was in at the t~me which was equivalent to the posted job was confirmed and he apparently saw no re~son to continue with the grievance. The Position Description Form accurately describes the position posted. TO BRADDED As is evident from the Position Description Form the essence of the position is a supervisory one. There is very little if any hands on work required of the supervisor. The Board Was told that the focus of the assessors of the competition was in assessing whether the candidates could properly and adequately -5- perform the position and in particular it's supervisory aspects. To that end, for example, the questions asked of the three candidates during the interview process consisted of eight questions reflecting the supervisory nature of the job (A Questions) of which there were twelve and six ~uestions (B Questions) which were non-supervisory related questions. The A questions were given twice as much weight as the B questions. Followlng the interview the candidates were scored and Mr. Infanti received 71 points wh'~le both Mr. Vance and Kr. Porter received 52. In the supervisory categoryMr. Infanti received 60 points, Mr. Porter 40 and Mr. Vance 36. These assessments were made without the assistance of Mr. Payne who chose not to participate in the formal assessment of the candidates az he thought it might put him in a compromising position. Mr. Payne u~fort~natelypassed away before the final decision was made and therefore the decision was left up to the College without his final input. Durlngthe course oft he hearing a significant amount of time was spent reviewing each of the questions and the answers given to it, in particularbyMr. Porter. For its part the thrust of the union's questions were to try to convince the Board that Mr. - 6- Porter was not properly assessed and that he should have received more points during the interview process. The College under-~tandably attempted to convince the Board that the candidates were properly assessed and that the scores reflected the relative capabilities of the candidates. According to Ms. Sandra Dicresci a Human Resources consultant with the College who was one of the m~her~ of the interview panel, the final decision was based on an analysis of the interview, the reference check with Mr. Beck, the candidate's knowledge of the department and of their ability to do the job and the expectation that they could work independently at the level of supervisor and develop good working relationships and supervise well. It was emphasized both by Ms. DiCresci and by Mr. Bridgeford that the results of the interview were not determ{native in thls case but rather that the decision was based on all of the factors just mentioned above. Mr. Bridgeford also added that in his view the result of the interview simply confirmed their appreciation of the candidates through personal knowledge and discussions with Mr. Beck. According to Mr. Bridgeford he discussed each of the candidates 8TO/LO01~I IY.-I' tC :~JT C6/TC/t~O - 7 - wither. Beck. He discussed their technical abilities which was determined to be approximately equal, their motivation, their ability to get along with fellow employees and their potential for being a good supervisor. Mr. Beck told him he would recommend Hr. Infanti first because he felt Mr. Infanti was better motivated and second 'and just as ~portant because he was of the view that Mr. Infanti'g interaction with coworker~ was superior to that of M~. ~o~ter. Mr. Infanti according to Mr. Beck's testimony was steady, even, tactful and diplomatic. Both Mr. Beck and Mr. Bridgeford in their evidence before the Board indicated that they had received some complaints from Mr. Porker's fellow employees about him ann in particular his lack of tac~ and his inability to get along with some employees. Mr. Porter was never spoken to by either Mr. Br~dgeford or Mr. Beck nor was he ever discipline~ for any incidences that m~ght have taken place between himself and fellow employee~. M~. Por~er testifie~ on his own behalf and refuted any suggestion that their might have been any difficultles between h~elf and fellow employees. He testifie~ that he was a WHIMS instructor 6T0/9001~ IW~ ~'C:gT C'6/TC/90 -8 - and has been a union steward elected to that position by his fellow employees and this reflected the esteem in which he was held by them. In the instant case the union emphasized the wording of Article 17.1.1. When a vacancy occurs and employees within the bargaining unit at the College apply, the college shall determine the successful candidate based on the qualification, experience and seniority of the applicants in relatlon to the requirements of the vacant position. Where the qualification and experience are relatively equal, seniority shall govern, provided the applicant has the neces-~ary qualifications and experience to fulfil the requirements of the position. The College need not consider probationary employees. It was submitted that there was no issue that the technical ~ualification~ of the candidates were the same. It was ~urther submitted and emphasized that the position is that of a supervisor within the bargaining unit and that therefore the -mphasi$ that the employer was putting on the supervisory skill~ as requirements of the job were overstated. Mr. Richar~'s on behalf of Mr. Porter ind/cated to the Board that in his view the 6T~/600 ~] /*'t'~ ~l: :gT - 9 - suggestion by the employer that Kr. Porter wa~ unable to get along with his fellow employees, that he was not tactful and that he didn't have the necessary supervisory skills wa-~ not proven and in fact he pointed to F~r. Porter's resu~ as indicative of the fact that he has exercised supervisory skills in the past and as well has exercised supervisory s~ills in being a lead hand for the last four years. It was also pointed out to the Boar~ that there were certain flaws in the intezview process such that although it would appear on the surface there was a substantial difference in the score between ~ir. Infanti and Mr. Porter, in fact, when one analyzed the responses of Mr. Porter, that. gap shoul~ be marginal. In the alternative it was argued that even wlththe gap as existe~ there was still relative equality betweenMr. Infanti and)ir. Porter. On behalf of the ~mployer it was emphasized that the position was a supervisory one and that although the technical skills of the candidates were essentially equal there was clear and cogent evidence to show that the supervisory skills and abilities of Hr. Infa~ti were far superior to those of ~r. Porter. It was su]mmit%ed that the results of the interview only confirmed the - 10 - information that had been transmitted to Fir. Bridgeford from Mr. Beck and from hi~ ow~ personal knowledge that F/r. Infanti was the right individual to hold the job of the supervisor in that he was more motivated, had greater supervisory qualifications, was more tactful, more diplomatic, and better able to get cooperation from his fellow employees. In analyzing the evidence in the instant case the Board i~ satisfied that the technical skills of the individuals in ~/estion are not in issue and that the only question to be determined is whe~herthe emphasis on supervisory skills as put by the Employer was valid and if so whether in fact the two candidates, that is Messrs. Porter and Infanti were not in fact relatively equal. For the purposes of our determ~_nation in this matter the Board is willing to accept the proposition of the Union without necessarily acceding to it that the two candidates, Messrs. Infanti and Porter, interviewed relatively e~ual. With that proposition it is only necessary to look at whether or not, given ~hat the interview was only one element that determined this issue, the Employer properly assessed the supervisory skills of 6IO/IIO ~ ~F:I 9C: gI C6/IC/90. Mr. Porter and Hr. Infanti through the eyes of ~ir. Beck and Hr. Bridgeford and through other persQnal observations. Prior, however, to making that analysis we must say that it is the view of the Board that it is clear that the emphasis on supervisoryskills fort his job is appropriate. That is shown by the fact that the PDF clearly demonstrates that the job is a suDervi~o~one with very little if any hand~ on work requlr~d of ~he supervisor. The job is a day to day supervisory position. Notwithstanding the fact that it is a position within the bargaining unit there is nothing improper about the Employer emphasizing what it perceives is its needs for supervisory skills. That a position in in the bargaining unit does not the d~minish the requirement for supervisory skills when a job is a supervisory one. In fact it is arguable as suggested by the Employer that because the position is a supervisory one within the bargainingunit the incumbent has to show even more tact as his or her ability to discipline other bargaining unit members does not exist and therefore the ability of the incumbent to be tactful and get along with fellow employees is even more ~portant. 6TO/~TO ~] /'~cl 9~:~T - 12 - The employer referred the Board to the case of University of V~toria and Canadian U_nion of Public E~ployee~, Local 951, unreported decision dated November 14, 1990 (McKee). In that case also a job competition case the position in issue was that of Librarian Assistant 5 (Loan Desk). What was at issue was a subjective judgement made by the Employer. With respect to making subjective judgements the arbitrator at page 7 stated: Other than production time, piece rate, or similar type jobs, it is not normally possible to visibly measure or 4emonstrate an employee's work performance and intrinsic worth and a supervisory judgement made in respect of it on an objective basis. The judgement of an employee for promotion, and particularly for promotion into a supervisory job, is to the largest degree a subjective judgement. It has tO be a subjective assessment of how the employee's work performance in the past may or may not condition his work performance in the future. A subjective assessment has to be made of any ~n~tiative shown. The question asked, did the employee Just do the job? Did the employee with increased experience tend to become "larger than the Job- and become obviously ready for greater tasks? Did the years on the job increase the employee's experience, knowledge and qualifications or was it really just the same year repeated over and over again? In the University of Victoria case just quoted the successful candidate for the job somewhat like Mr. Infanti appeared to ~ake - 13 - certain initiatives and the arbitrator stated with regard to that matter. Even more clear from the evidence is that the successful candidate for the posting, in her recent years of employment and in her job An the Reserve Reading Room, was fortunate enough to see the need for change in operation procedures and bring these needs to the attention of her supervisors, Scott and MacDonald. This extra insight into the operation of the Library in respect of assisting in the re-drafting of manuals, acting as a go-between ~he ~upervi=or and staff, and ~o forth, obviously acted to enhance her image to supervisors who subsequently were looking for someone to promote to a supervisory job. Finally with respect to how an arbitrator must deal with these matters, the arbitrator said: An arbitrator, in my view, has no collective agreement right to attempt to manage the affairs of either a union or a company. It is not the right of an arbitrator to be so confident of his knowledge of the case before him that he ~ould substitute hi~ basically -~ubjective judgement i'n place of the subjective judgements of the well-~uslified representatives of the employer. In my view, in circumstances such as these, it is the responsibility and the right of the arbitrator to check carefully that the process and its intent is carried forward fairly and equitably by the employer, to ensure that there ha~ been no breach of the collective agreement by not considering all the factors as reguired by the collective agreement, and particularly 6TO/tTO i~ IYA' J.C: gT C6/T9./~0 - 14 - of not ignoring the seniority factor. In the instant case the decision of the Rmployer is made on the basi~ of a subjective assessment of the two candidates'. It was the unqualifi, ed opinion of F~r. Beck who had superwise4 both Mr. Infan=i ana Mr. Porter as well as Mr. Bridgeford through his personal knowledge that Mr. Infanti was clearly superior to Mr. Porter in what was perceived as the essential qualification for the position that of supervisory skills. This clear superiority of Mr. Infanti was affirmed through the interview process. Absent any suggestion or evidence of bad faith on the part of the Employer and absent any evidence on the part of the union to contradict any assertions of the Employer with respect to the relationship between .Mr. Porter and the other members of the bargaining unit the Board does not feel itself in the position to 6IO/gIO~ I"V~ £C:gT C6/IC/eO - 15 - s~.?_~__~__arily substitute its judgement for that of the Employer in this subjective area. Accordingly the grievance is dls~ssed. Nepean, this ~ day of , 1993. M.B. Keller, Arbitrator I conour/dissent Jane Gr~wood, Union Nominee I ooncur/dlr_ !nt Allen Merritt, Employer Nominee 6TO/gTOI~i rf',4' z,~: :~T C6/T~/~O 15 July 1993 Mr. M. B. Keller 49 Chafing Road Nel~an, Ontario K2G 4E8 Dear Sir: Re: ~__~.__~er College and Ontario Public Sexvice EmPloyees Union Grievance of John Porter OPSEU: 91619 Enclosed is a copy of my Dissent: frnm the Majori%y Amard. Yours very truly, $IO/AIO~ 1'iA 8~:~I ~$/I~/80 IN THE MATTER OF AN ARBITRATION BETWEEN: HUMBER COLLEGE (Employer) - and - = - ...... ONTARIO-PUBI 'IG-$ERVICE-EMPLOYEES-UNION (Union) AND IN THE MATTER OF JOHN PORTER Arbitrator:. Mr. Brian Keller Employer Nominee: Al Men'itt Union Nominee: Jane Grimwood Appearances: For the Employer:. Diane Gee For the Union: George Richards Hearing: Toronto, December 18, 1991 and June 3, 1992, March 25, April 1, May 17, 1993. 6IO/gTO~ rv'~ g~:gT ~6/T~/~O DISSENT i have read the AWARD of the Majority in this matter, and must respectfully dissent. The test employed by the Majority at p. 13 is incorrect. There, the Majority refers to the University of Victo#a and Canadian Union of Pubfic Employees decision which stood for the proposition that the sole responsibility of th. e arbitrator is to check that the process has been carried forward fairly and equitably, and 'parb'culady of not ignodng the seniority factor." The clause in question refers to the test of"relatively equal" qualifications and experience. The use of the adjective "relatively" as a modifier clearly, as many hundreds of cases have demonstrated, demands an analysis within a context, having regard to qualification and experience. The onus in such a case is on the Employer, not the Grievor, and the Employer must present clear and cogent evidence which demonstrates, on a balance of probabilities, that Mr. Infanti had superior "qualification and experience". This was not done. Therefore the seniority factor ought to prevail. If there was any doubt about the "relatively" equal aspects involved, the position of Union Steward held by the Grievor, with all that that entails, would be enough to resolve any dilemma, particularly problems requiring cooperation from his fellow employees. .. The Grievance-should be allowed. Toronto, this 13th day of July, 1993 Jane Grirnwood, Union Nominee 6TO/6TO~ [YE gC:~T C6/TC/SO