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HomeMy WebLinkAbout1980-0447.Coleman.82-06-03 DecisionONTARIO CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD 180 DUNOAS STREET WEST. TORONTO, ONTARIO M5G 1Z8 - SUITE 2100 •' !!1 Coe• ., CigOij TELEPHONE , 416/598 - 0688 447/80 ^ IN THE MATTER OF AN ARBITRATION 12.1 Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (Mr. R. McColeman) Grievor - And - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Before: P. G. Barton Vice Chairman L. Robinson Member A. G. Stapleton wember For the Grievor: E. Shilton-Lennon, Counsel Golden-Levinson For the Employer: J. Baker, Counsel Hicks, Morley, Hamilton, Stewart & Stone Hearing: April 27, 1982 - 2 - AWARD The Grievor is the Manager of the Liquor Store in Capreol. This is a "D" store with an annual volume of up to $635,000 per year. On May 20, 1980, the position of Manager at store 492, Callander was posted. This is a "C" store with a volume from $635,000 to $1,800,000 per year. The Grievor applied for this position but was unsuccessful. The successful candidate Mr. Crocker, formerly a Clerk 3 in Thunder Bay, was present at the hearing. The Grievor has a seniority date of July 1964, Mr. Crocker has a seniority date of February, 1971. The Grievor started work in North Bay and moved to Capreol in 1964. He started as a Clerk 1 and moved up the ladder to Manager 1 in 1968. At this time the store, a conventional store, was operated by two full time staff. It is clear that the volume in the store did not justify this and it has since been cut down "c-) one full time person (the Grievor) and one temporary staff. At the relevant time part time employees were used if one of the full time staff was absent. The appraisals of the Grievor for the past three years show him to be operating at an average level. Despite this a letter sent to the Board by H. T. Adamson the present Area Manager and formerly Supervisor of the District, when asked to comment on his suitability for the position stated as follows: "Mr. McColeman operates his present store in a mediocre manner. He will have to demonstrate some improvement by overcoming present shortcomings, before I can recommend him for promotion." Mr. Adamson's evidence was to the effect that the Grievor has a significant problem with respect to the overuse of part time staff. 3 This problem had been pointed out to him on a number of occasions and despite this the Grievor had not successfully managed to reduce his dependency on these part-time persons. Mr. Adamson thought he could motivate the Grievor by counselling with respect to this problem rather than by putting the details into his personnel record. On this point, we are satisfied that the Grievor was counselled on a number of occasions concerning this problem. In his evidence he acknowledged that this had been done, and indeed that even since the competition he has been asked by his Supervisor to cut down on the use of part-time persons. The use of part-time staff is a problem to the Employer . because' it costs money. The way in which the use of part-time staff is measured is by productivity figures. The number of sales per day, per man,per store is calculated for all of the stores and certain norms are set. In the case of conventional stores the norm is 150 sales per person per day. Evidence given concerning the volume of sales at the Capreol store indicates that on a number of days the total number of sales might not reach this figure. Thus to compare productivity when two full time staff are on duty would not be fair. What was of concern to the Employer was that whenever the second full time person was away, the Grievor would bring in a part-timer for a significant part or all of each of the days. The volume of sales would not justify this use nor would the outside work(such as going to the bank or having lunch, or to the post office),require the extra person for such a length of time. Two examples were given from 1979 in which on two days the total number of transactions at the store was 123 and 100. On each of these 4 days one of the regular employees was off and a part-timer was brought in for the full day. No explanation was given as to why the part-timer was needed for more than the minimum three hours ,(guaranteed call in). Mr. Adamson's evidence was that the Callander store has double the volume of the Capreol store. Because it is busiest in the summer period there are times when its volume is as much as four times that of the Capreol store. He was concerned that the reluctance of the Grievor to work harder and increase his productivity would cause considerable problems in the larger store. It would also cause considerable expense at the larger store because the practice of excessive use of part-time employees would probably continue. Basically he didn't feel that the Grievor was willing to operate at the level of efficiency required. His other concern was that the Grievor would not be able to motivate his subordinates at the larger store if he in fact was not willing to work at an accelerated pace. The Grievor's position with respect to this problem was that on occasion Mr. Adamson had mentioned it to him and had counselled him. He felt that he could handle the volume "under the right environment". He thinks he did improve to some extent on the problem and tried to cut down on temporaries. He felt that he probably did exceed but "thought he needed the people there". The relevant Article is Article 16.6. This indicates that where promotion is involved length of service is the determining factor provided "the employee is qualified" to perform the work. It can be seen that this is a reasonably typical threshold qualifications clause and that the sole question here is whether or not the Grievor has satisfied us that he is qualified to be promoted to the position of Manager of a "C" store. - 5 - The position of the Union is that he had 12 years experience as a Manager of a "0" store, satisfactory evaluations, and that the duties in the "C" store would not be significantly different from those in the "0" store. The position of the Employer is that satisfactory performance is a "0" store does not show that he could perform in a "C" store. It is stated that the work in a "C" store is considerably more demanding and that while the Grievor was adequate at Capreol he didn't work enough particularly when part-timers were required. We feel that we are not inclined to interfere-with the judgment of the Employer in this matter. The problem with respect . to excessive use of part-timers was one that was clearly known to the Grievor and which he did not manage to resolve. It was Mr..Adamson's view that he did not feel that the Grievor was willing to operate at the required level of efficiency, and we have seen no evidence which would incline us to second guess the view of manacement. In the result the grievance is dismissed. We do not wish that anything that we have said should be taken as reflecting upon the ability of the Grievor to do his present job. He clearly has a problem with respect to excessive use of part-timers but except for that seems to be operating satisfactorily. It may well be that if he can resolve the problem, he will again be able to apply for a promotion and be successful. 6 DATED at London, Ontario this 3rd day of June, 1982. P.G. Barton Vice Chairman "I dissent" (See attached) L. Robinson Member A. G. Stapleton Member DISSENT The relevant article of the Collective Agreement is 16.6 (a). It reads as follows: "Where employees are being considered for promotion, length of service from appointment date will be the determining factor provided the employee is qualified to perform the job." The article requires threshold qualifications only on the part of applicants for promotion, not comparative qualifi- cations. It does not say, as the relevant articles in many other collective agreements do, "when qualifications are relatively equal, seniority shall govern." It required only that applicants to be qualified to perform the job; among applicants with the threshold qualifications, seniority shall govern. Thus, the question in this case is: was the grievor qualified to perform the job? If the answer to this question is Yes, then the fact that other applicants may have been more qualified and, in management's opinion, might do the job better, is irrelevant. In my opinion, the grievor was qualified to perform the job and there is no dispute that he had the most seniority. It seems to me clear from the evi- dence that management however decided against the grievor on the ground that the applicant with less seniority who was in fact promoted would do the job better. Management's decision was thus contrary to the express terms of Article 16.6 (a). Two reasons were given for deciding against the grievor. First, that he used part-time staff more than in his super- visor's opinion was strictly necessary in running the Liquor Store in Capreol and, secondly, that he would not be able to motivate his subordinate(s) in the larger store at Callander. The first of these reasons seems irrelevant, since no evidence was presented to suggest that this problem would arise in the store at Callander. 4The second reason is so subjective that, if allowed, it could in every case be used to override the advantage of seniority which Article 16.6(a) is intended to confer. Capreol is a "D" store, with formerly a complement of two full-time staff which was later reduced to one permanent staff person (the grievor) and one regular part-time person. The evidence with respect to the allegedly excessive use of part-time staff amounts to this, on the regular part-time person's days off, the grievor would bring in another part- time person to take his place, whereas this was not really necessary in view of the volume of work. The grievor was counselled that, on these days, he should be able to run the store alone, thus giving an example of zeal for efficiency and cost-saving. From the grievor's point of view, however, if the normal staff complement of his store was two, it was not unreasonable to assume that this was also the appropriate complement on the days when the regular part-time person was off. 3 Management interpreted the grievor's reluctance to operate on the exceptional days when the regular part-time person was off as an indication that he would ask for more staff in addition to the regular complement of two at the Callander store. An alternative conclusion could likewise have been drawn, namely, that if the regular complement of a store was two, that is how the grievor would endeavour to operate on all normal days as well as on exceptional ones. The supposition that the grievor might ask for more help at the Callander store was only a possibility, not a fact relating to the grievor's qualifications to perform the job. It was an inference only, nor even the only possible one, and not a sufficient reason to override the grievor's greater seniority. The second reason is even more "iffy". There is no objective test of a person's ability to motivate others. The grievor had little opportunity either to display or develop this talent in running his Capreol store, and if, as stated above, manage- ment is allowed to override seniority on the basis of such intangible and wholly judgements as we see illustrated here, then the advantage which Article 16.6(a) is intended to give to seniority could be wholly negated. In my opinion, the two reasons given for denying the promotion for which the grievor was qualified are specious rather than 4 genuine, and are outside the proper scope of Article 16.6 Accordingly, I would have upheld the grievance. 0%a 41'"Arb L. Robinson May 25, 1982