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HomeMy WebLinkAbout1981-0570.Mepham.82-08-12 DecisionCR1EVANCE EETTLEMETT ri?A.R.) ADVANCE CO?' '10 THE PARTIES, TYPOGRAPHICAL. CHANGES MAY APPEAR IN THE PRINTED COPY TO BE DiSTRIBUT:2.D LATER. REGISTRAR 570/81 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (Bob Mepham) Grievor and The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Before: S.B. Linden, Q.C. Vice Chairman P. Craven Member J.H. Morrow Member For the Grievor: M.A. Green, Counsel Golden, Levinson For the Employer: R.J. Drmai, Counsel Hicks, Morley, Hamilton, Stewart & Stone Hearing: April 16, 1982 2 This is the grievance of Mr. Bob Mepham, who alleges that he was improperly denied promotion to the position of 'B' Store Assistant Manager (Liquor Store Manager 2) by his employer, the Liquor Control Board of Ontario. By circular dated May 19th, 1981 and addressed to all employees at a list of Toronto-area stores, the employer solicited applications "for promotion in the Toronto area" to the disputed position ("Job Posting #910", Exhibit 3). Mr. Mepham appears as one among the 112 applicants who responded to this posting in a list of applicants dated June 23rd, 1981, Exhibit 4. On September 1st, 1981, the employer issued another circular, entitled "Job Posting #910 (announcement)", Exhibit 5, which communicated that four promotions had been awarded, listing the successful applicants and their seniority dates. Four promotions to the post of "'B' Store Assistant Manager 2" had been made. Mr. Mepham was not one of these four, and he had greater seniority than any of them. On September 18th, 1981 he grieved the denial of promotion. grievance meeting was held between the parties on December 18th, 1981 and by letter of December 24th, 1981, Exhibit 2, the employer denied the grievance saying, "it has been decided that the grievor as evidenced by recent performance was not qualified for promotion at the time of the selection". The grievance was subsequently remitted to this Board for determination, and a hearing was held on April 16th, 1982. 3 The relevant provision of the Collective Agreement is Article 16.6(a): "Where employees are being considered for promotion, length of service from appoint- ment date will be the determining factor provided the employee is qualified to perform the job." As noted above, Mr. Mepham was senior to all four successful , candidates for the promotion. (Ten other unsuccessful candidates were senior to Mr. Mepham, a fact whose bearing we consider later in this award.) He chose at the hearing to challenge the promotion of the most senior of the successful candidates, Mr. A. E. Warwick, who, we are informed, had been notified of the hearing.We heard no evidence as to Mr. Warwick's qualifications for the position, but on the language of the Article quoted above, this is not material to the determination of the grievance. The Article requires that the most senior candidate who possesses the requisite qualifi- cations is to be awarded the promotion. The clear implication is that candidates are to be considered in the order of their seniority. The first candidate (i.e. the one with the greatest seniority) who qualifies for the job is to be awarded the first vacant position, the next the second vacant position and so on until all the vacancies have been filled. It follows that if Mr. Mepham was qualified for the position he was in line to receive it even before Mr. Warwick, who had less seniority, was considered. The threshold question, then, is whether Mr. Mepham was qualified for the position of 'B' Store Assistant Manager (Liquor Store Manager 2). The parties agreed that the onus is on the grievor in the first instance to establish a prima facie case that he was qualified for the promotion. The onus then shifts to the employer to show that in fact the grievor was not qualified. In the ordinary course of such matters, then, board would expect to be presented with evidence establishing what qualifications the position requires. It would then be up to the grievor to show that he possessed these qualifications. Then the employer would seek to demonstrate that the grievor was not qualified or, if in the employer's view the grievor had failed to satisfy the initial onus, it might choose to present no evidence and ask the board to find that the grievor, on his or her awn showing, was unqualified. In this case, however, the matter was complicated by the employer's submissions. First, that there was no Collective Agreement requirement that there be qualifications for the job (although in its submission the grievor was required to show he was qualified); second, that if there were qualifications it was within the unfettered discretion of the employer to determine what they were; third, that in any event there was no Collective Agreement obligation on the employer to disclose what the qualifications were if in fact there were any. Further complications were introduced with the employer's related submissions going to the selection procedure. First that there was no requirement that there be any such procedure; second that if there was to be a procedure the employer had unfettered discretion to design and implement it; and third that this board lacks jurisdiction to enquire into the adequacy of the procedure employed if in fact there was any procedure employed. Before moving to the evidence about Mr. Mepham's qualifications, then, it is necessary to consider these submissions. Are Qualifications Required? The first question we are called upon to decide here is whether, on the language of this Collective Agreement, it is necessary that there be qualifications attached to specific positions. On the language of Article 16.6(a), quoted above, it is plain that we must answer in the affirmative. The article requires that the senior qualified candidate receive the promotion. If there were in fact no requirement that a position carry qualifi- cations with it, it would necessarily follow that the most senior applicant automatically receive the promotion. But it is a common rule of construction that Collective Agreement provisions are to be interpreted so as to give meaning to their 6 words. The parties obviously intended (and indeed it is a matter of basic common sense) that there be qualifications, and that unqualified candidates, no matter what their seniority, not be promoted. We find that the Collective Agreement requires that there be qualifications attached to positions. The second question asks, in effect, how those qualifications are to be determined, and whether this Board hag jurisdiction to enquire into the adequacy of the employer's determination of what qualifications are to be required of applicants for a position. Counsel for the employer directed us to the "Management Functions" provisions of the Collective Agreement, and in particular to Article 3.1, which mirrors the language of the Crown Employees Collective Bargaining Act, Section 18, and provides as follows: "The Union acknowledges that it is the exclusive function of the Boards to manages which function, without limiting the generality of the foregoing, includes the right to determine, (a)employment, appointment, complement, organi- zation, assignment, discipline, dismissal, sus- pension, work methods and procedures, kinds and locations of equipment and classification of positions; and (b)merit system, training and development, appraisal and superannuation, the governing principles of which are subject to review by the employer with the bargaining agent, and such matters will not be the subject of collective bargaining nor come within the juris- diction of a Board." 7 On this language, it was submitted, the employer enjoyed an unfettered discretion to determine what qualifications were appropriate for appointment to the various positions. Counsel for the employer pointed to the absence of any provisions requiring that the employer act "fairly" in making such determinations, and argued that this Board is prevented in law from imposing such a requirement in the absence of plain language in the Collective Agreement. Up to a point, we accept these submissions. There is no doubt on this language that it is the exclusive province of the employer to determine what qualifications should be required. In our view, however, the employer's exercise of that right to determine is qualified in some respect. First, since, as we have already found, the Collective Agreement requires that there be a set of qualifications associated with a position, we do not believe that the employer is free to exercise his right by determining that there are to be no qualifications for a particular position. Second, the exercise of the right is qualified by the rules of natural justice. The employer must not make its deter- mination arbitrarily, discriminatorily or in bad faith. Finally, with respect to the question of "fairness", we do not find that the current jurisprudence on this issue absolves the employer of the more limited duty of reason- ableness. Thus is was determined long ago that in establishing the qualifications for a position, the employer must take 8 into account the nature of the positions and avoid taking into account irrelevant considerations. See, for example, the well known cases of St. Lawrence Seaway Authority (1969) 23 LAC 156 (Weiler) and Polymer Corp. Ltd. (1968) 19 LAC 386 (Weatherill), in which it was determined that the tests used to assess candidates' qualifications for a position must be relevant to the position: if the tests must be relevant, so a fortiori must be the specifications of qualifications themselves. Finally we turn to the question whether the employer is required to communicate to candidates what qualifications are required for the position for which they are applying. We must say we were quite surprised to hear counsel for the employer insist that there was no such obligation on the employer, particularly in light of his equally insistent claim that the grievor was obliged to show he met the qualifications. In any event, this argument is easily disposed of on the language of the Collective Agreement. Article 16.5(a) governs job postings and provides as follows (emphasis supplied): "If a new job classification within the bargaining unit is created or a permanent vacancy occurs in an existing job classifi- cation before inviting applications from within the geographic area as specified, notice of such new job or vacancy for a 9 period of ten (10) working days during which employees within such area who have completed their probationary period may apply. The notice shall stipulate qualifications, classifications, salary range, department and location concerned." We find that when a position is posted pursuant to this Article, as occurred in the present grievance, the employer is required to include on the posting a statement of qualifi- cations for the position. We note that Exhibit 3, the job posting at issue here, fails to satisfy this requirement. It is accordingly in breach of Article 16.5(a). It should go without saying that the employer cannot be permitted to rely on this breach, so as to continue to maintain that it need not supply the particulars of the qualifications to the grievor. Is a Selection Procedure Required? We have already stated that in our view the language of Article 16.6(a) clearly contemplates that candidates are to be ranked by seniority and then examined in turn to determine whether they meet the qualifications for the position. As candidates are found, in order of seniority, to be qualified, the vacancies are filled. It must be emphasized that on this language there is no question of comparing candidates one with another, or asking whether one candidate is more qualified than another. The plain language of the Article requires that this mode of filling vacancies be adhered to, and it plainly follows that -10 - a selection procedure must be devised that will ensure such proper consideration. It follows, first, that there must be a procedure, and second, that in designing it the discretion of the employer is fettered to the extent that the procedure must ensure that the requirements of the Article are met. The employer's discretion is similarly fettered by the requirements of natural justice discussed in the preceding section, and by the same requirement of relevance. This Board is of the view that it does have jurisdiction to determine whether the selection procedure employed meets the requirements set out above. Of course, the employer retains the right to design a procedure that suits its administrative convenience, so long as the procedure is one that will satisfy these requirements. We shall have more to say about this matter below, once we have considered the evidence in the current grievance. Evidence as to Qualification The grievor, Mr. Mepham, joined the staff of the LCBO in 1969. He was employed first at the Avenue Road store, transferred to a store at Eglinton and Laird in 1977, and transferred to his present store, #584 (Finch and McCallum) in 1981. He experienced the usual progression through the salary ranges, reaching the maximum salary in his current classification in July, 1979. He began his employment with the LCBO as a Clerk 2, and is currently a Clerk 4. This is a bookkeeping position. His duties involve keeping reports of the store's cashf low and stock, "cashing out" the store's cashiers, and filing weekly and monthly reports of sales and stock with the LCBO's head office. His current store is classified as a 'C' store, which means that it has no Assistant Manager. A 'C' store has a Manager, and a 'B' store, by contrast, has a Manager, an Assistant Manager, and a Clerk 4 bookkeeper, along with a complement of Clerk 3's, Clerk 2's, and so on. Mr. Mepham testified that in the course of his career he has served as Store Manager or Assistant Manager in an acting capacity on a number of occasions. Prior to April, 1980, his current store was classified 'B' and he regularly served as acting Assistant Manager and acting Manager on Thursday or Friday evening shifts. When the store was reclassified as a 'C' store he continued to have charge of these shifts on a regular basis, in the capacity of acting Store Manager. Moreover, he filled in as acting Manager when the then Store Manager was away sick or on vacation. Mr. Mepham's employee appraisal reports, dated September, 1979 and September, 1980 were submitted as Exhibits 6 and 7 respectively. (A further annual appraisal for 1981 is discussed below.) The 1979 appraisal showed him as "above average" on three of the thirteen categories, and "average" on the others. The 1980 - 12 - appraisal was identical in this respect. The Store Manager at the time, Mr. Cramer, commented on the 1979 appraisal, "Mr. Mepham performs his duties in a satisfactory manner. He gets along well with his fellow employees, and very courteous with the public. At maximum salary in his classifi- cation as a Clerk IV." On the 1980 appraisal he wrote, "Mr. Mepham gets along well with his fellow employees, and very courteous with the customers. Has a good knowledge of store operations. At maximum salary as a Clerk IV." The District Supervisor wrote on the 1979 form, "Mr. Mepham (sic) is a mature employee, whose work is acceptable in his present classification. He co-operates fully, contributes to the operation of this small conventional stord and is receiving maximum salary for present position. Recommend no change at present time." The District Supervisor wrote on the 1980 form, "Mature, dependable employee with a hearing problem who believes that this is holding him back from becoming an Assistant Manager. He has requested a transfer to another store for further evaluation. I concur. Recommend no change at this time." (It was no part of the employer's argument in this grievance that Mr. Mepham's hearing played a part in the decision to deny his promotion. It therefore did not fall to us to determine whether it interfered with his ability to perform his job. Mr. Mepham wears two hearing aids, and seemed to us to have no difficulty in hearing and understanding - 13 - the questions put to him by counsel.) Since Mr. Mepham's other evidence was directed to responding to what he perceived might be the contrary evidence of the employer (and we deal with this below), this amounted in essence to his evidence that he was qualified for the position of Assistant Manager for T;/hich he had applied. It will be recalled, first that there exists an initial onus on the grievor to present a prima facie case that he is qualified for the position, and second that the employer had failed in its duty to supply particulars of the qualifications required for the position. As will become apparent, at no point in these proceedings was the employer able or willing to provide the grievor or, for that matter, this Board, with a statement of qualifications. The Board has therefore to determine whether Mr. Mepham has satisfied the initial onus, without the benefit of having the employer's statement of required qualifications before it. We are satisfied on the evidence having regard to these circumstances, that Mr. Mepham has shown prima facie grounds for considering him to have been qualified for the position of Assistant Manager. In particular, his evidence that he has filled this position in an acting capacity (and indeed has acted as Manager as well) indicates that he is familiar with the requirements of the job and has shown himself able to carry them out. We have also taken into - 14- account the evidence of the job appraisals, including the comment of his Manager that he "has a good knowledge of store operations". On this evidence, we are satisfied that the onus must shift to the employer to show that Mr. Mepham was not qualified for promotion to Assistant Manager. We have already alluded to the fact that in the course of Mr. Mepham's evidence, counsel for the Union introduced a third performance appraisal, dated October, 1981, Exhibit 8. We note that this document was produced after the decision to deny Mr. Mepham the promotion he sought had already been taken, and that it was introduced into evidence to offer Mr. Mepham an opportunity to speak to two incidents to which it refers, incidents that took place before the promotion decision was made and which, the Union anticipated might have been the grounds upon which the denial decision was taken. The first of these incidents had to do with errors in the store reports that were found by head office auditors. We are satisfied on the evidence of Mr. Mepham and the other witnesses that this problem arose out of a simple misunder- standing, and that the "errors" complained of occurred, to the extent that they were Mr. Mepham's responsibility at all, because the auditors examined a report that had not yet been completed and checked. We find that this incident does not go in any way to the question of Mr. Mepham's qualifications - 15- or his suitability for promotion. The second incident had to do with an alleged improper procedure in "cashing out" a cashier. We heard a great deal of evidence from all witnesses about this incident, and we note that the employer's witnesses, the current Store Manager and the current District Supervisor, disagreed in their account of what the proper procedure should have been. In any event, we find that the procedure used by Mr. Mepham at the time of the incident was the procedure in common use by employees at his store (including the Store Manager) and probably at other stores as well. We are satisfied on the evidence that this incident does not reflect adversely on Mr. Mepham's qualifications or suitability for promotion to the job of Assistant Manager. Having made these findings of fact, we do not consider the appraisal of October, 1981 to have any further relevance to the determination of the matter before US. At this point it is necessary to refer to a procedural submission placed before us by the parties. The Union took the view initially that the only grounds upon which the employer relied in determining that Mr. Mepham was not qualified for the promotion were the two incidents cited above. It was the Union's submission that the employer had so stated in the course of the grievance procedure, and that it was accordingly estopped from raising other grounds at this hearing. The employer denied - 16 - having restricted itself to these two incidents. The Board then proposed hearing evidence as to whether or not the employer had indicated at some earlier stale of the procedure that it rested its denial on these two incidents alone. Counsel for the employer objected to this procedure however, and submitted that under no circumstances could the employer be estopped from raising additional grounds for denial, no matter what had transpired before. Counsel asked that we determine this question in the hypothetical. We indicated our reluctance to deal with questions of this sort on purely hypothetical grounds, but ruled unanimously that in our view circumstances could hypothetically arise whereby the employer was estopped from introducing new grounds at the hearing stage in a denial of promotion grievance. We indicated our reluctance to hear evidence about what had transpired during the grievance procedure, particularly as it might relate to attempts at settlement, but held that if an employer were to indicate in the course of the grievance procedure that certain matters were the sole reasons for its decisions, that this would be evidence in the nature of a response to the grievance, that it would properly be before the Board, and that the Union would be entitled to rely on this statement by the employer. Having so ruled in the hypothetical, we proceeded to hear evidence as to whether this employer had so restricted itself in this grievance, and we found that it had not. - 17 - It fell next to the employer to rebut the grievor's case that he was qualified for the position. Its first witness was the grievor's present Store Manager, Mr. Cameron. Mr. Cameron supported Mr. Mepham's evidence on the "cashing out" incident, and with respect to the audit errors_incident he testified that the errors reported in Exhibits 10 and 12 were either not clearly traceable to the grievor, or were "the sort of small error you see all the time", saying, for example, of one of them, "it is not unusual for this error to occur, every store will have that". He acknowledged that the errors could have been Mr. Mepham's or the typists, and that it was his responsibility to check the reports. Mr. Cameron was asked in cross-examination whether he knew Mr. Mepham was applying for the promotion. His reply is informative: "I gave him and Mr. McHugh and Mr. McPherson the notice of the posting. They were all qualified." (Emphasis supplied.) Mr. Cameron was shown a letter he had written to his Area Manager in August, 1981, complaining about Mr. Mepham, Exhibit 11. He testified that he had written it because of criticism and reprimands he was receiving from head office arising out of the incidents referred to earlier. We find on Mr. Cameron's evidence that Mr. Mepham was not particularly at fault in these incidents, and that the letter of complaint was therefore ill-founded. We found Mr. Cameron to be a frank and candid witness. We conclude on his evidence that he -18 - considered Mr. Mepham to be qualified for the promotion, and that none of the incidents he related has any bearing on the question of Mr. Mepham's suitability or qualifications for the promotion. We note that Mr. Cameron was not consulted as to whether Mr. Mepham should or should not be promoted. The employer's only other witness was the District Supervisor in the grievor's district, Mr. Fletcher. Mr. Fletcher gave evidence about the audit and "cashing out" incidents referred to earlier. In some respects his evidence was in conflict not only with that of the grievor but with that of Mr. Cameron as well. In light of Mr. Fletcher's general demeanor as a witness, we are not inclined to adopt his versions of these occurrences. In any event, Mr. Fletcher introduced no new incidents that might go to the question whether the grievor was qualified. He was the only witness who had actually been present at the selection meeting where the grievor's application was denied, and he appears to have been the only person at that meeting who was at all familiar with the grievor. He testified that he had not seen Mr. Cameron's letter, Exhibit 11, prior to that meeting, and so we must assume that it played no part in the determination. Similarly, he had not seen the "follow-up audit report", Exhibit 12, which is in any event dated after the determination was made. We conclude therefore, that at the time Mr. Mepham's application for promotion was considered, there were no well-founded complaints about his performance -19 - within the knowledge of the selectors. We find that the employer has failed to show that we should overturn Mr. Mepham's prima facie claim that he was qualified, and indeed that the only employer witness who testified as to whether or not Mr. Mepham was qualified - Mr. Cameron - said that in his opinion he was. We concur in that view. We find that Mr. Mepham was qualified for the position of Assistant Manager, subject to our earlier reservations about not having a formal statement of qualifications before us. The Selection Process On the evidence we have already reviewed, it is apparent that the employer violated article 16.6(a) in failing to promote Mr. Mepham (whom we found, with the reservations already noted, to have been qualified) before promoting Mr. Warwick, who was a less senior employee. In order to see wherein that violation arose, we must now turn to the evidence we heard about the process undertaken by the employer to select employees for promotion under Job Posting #910. The only evidence before us on this matter is the testimony of Mr. Fletcher, which can be summarized as follows: A meeting was held of the seven District Supervisors in the area to which the Posting was relevant, and their Area Manager, a Mr. Brady. The participants in this meeting had before them a list of applicants in order of seniority, Exhibit 4. They did not -20 - have before them a statement of the qualifications for tile posted position (Mr. Fletcher testified that there had at some indeterminate time been a circular issued listing these qualifications, but it was not before the selection meeting, nor did he recall when the circular was issued, which circular was involved, or when he had last read it). Nor, it would appear, did the selectors have before them any documentation as to the qualifications of the various candidates for the position. Apparently the Area Manager read the names from the list one by one, and the District Supervisor in charge of the store where each of the applicants was employed gave his recommendation as to whether or not the candidate should be promoted. As Mr. Fletcher put it, "basically all that happenedwas as we went down the list the Supervisor would say, 'I recommend' (or) 'I don't recommend'". When Mr. Mepham's name came up, Mr. Fletcher said "not recommended". He could not recall whether anything except this was said, although he thought that Mr. Brady might have said something. It is clear on the evidence that no examination of the various candidates' qualifications was undertaken at this meeting. It is equally clear that in not recommending Mr. Mepham, Mr. Fletcher had not turned his mind to the formal qualifications for the job, or to whether or not Mr. Mepham possessed the required qualifications. There is no evidence to suggest, and we are not inclined to believe, that a -21 - different situation resulted with respect to any of the other candidates for the posting. This selection procedure leaves a great deal to be desired. We have already noted that the language of the Collective Agreement clearly contemplates a process in which candidates are taken in order of seniority, examined as to their qualifications, and appointed seriatim to the vacant positions until these are all filled. The procedure employed here satisfied only the first of these requirements, and that only in form. Similarly, we have already noted a violation of Article 16.5(a) in that candidates were not informed through the posting of the qualifications required. We now find that the selectors themselves were left equally in the dark. It is beyond the capacity of committee could assess a position when it had qualifications for the own qualifications. this Board to understand how a selection whether a candidate was qualified for before it neither a statement of the position nor a listing of the candidate's Remedy We have found that Mr. Mepham's application for promotion to the position of 'B' Store Assistant Manager (Liquor Store Manager 2) was improperly denied, in violation of the provisions of the Collective Agreement. We have found that Mr. Mepham - 22 - presented a cogent prima facie case that he was qualified for the promotion, given the rather unusual circumstance \ that no formal statement of qualifications for the post was available to the Board. We have found that he was passed over in order of seniority in favour of Mr. Warwick. A number of remedial options are available to us. If we were satisfied that on the employer's own criteria the grievor possessed the requisite qualifications we might order his appointment to the position. Alternatively, we might take into account the fact that other candidates, more senior than the grievor, were passed over, and depending upon the circumstances of the particular case, we might conclude that their applications should be reconsidered. If we were unsure that the grievor was qualified but were satisfied that the selection procedure was so flawed as to have rendered it unlikely that the question of his qualifications was properly addressed, we might require the employer to conduct the entire selection process over again. Depending on the nature and severity of the flaws in the process, we might find it necessary to attach conditions to this reprocessing so as to ensure that it was carried out properly. In the present case, where we do not have before us a statement of position qualifications, we find it difficult to shape a wholly satisfactory remedy. If we felt able to - 23 - rely on our judgment of Mr. Mepham's qualifications, we would have no hesitation in appointing him to the position even in the face of the ten more senior unsuccessful candidates, for they have apparently exercised their option not to grieve the outcome. We are satisfied that Mr. Mepham has established a prima facie case for his qualifications. This does not necessarily mean, however, that he was qualified, but only that the onus fell upon the employer to show that he was not. The employer has not discharged that onus successfully, but is has also not supplied us with any evidence upon which to base a further assessment of Mr. Mepham's qualifications (other than the opinion evidence of the Store Manager, who said Mr. Mepham, in his view, was qualified). We are certain of one thing: that the selection procedure was flawed so that the question of qualifications was never properly addressed. It follows that we must take into account the ten senior candidates who have not grieved, for this is not a case of a grievor saying "they looked at my qualifications and they made a mistake", under which circumstances it would have been open to any of the senior unsuccessful applicants to grieve, but instead a case where the grievor alleges a far more fundamental breach: "they failed to look at my qualifications". And here any or all of the applicants, and the Union in its own right as well, have grounds for complaint. In any event, we are unwilling, - 24- albeit with some regret, to conclude that Mr. be placed in the position. Instead we find the procedure to have been so flawed as to have been It must be redone properly. It is our award that the posting be reprocessed 1.The employer is to produce the formal statem qualifications for the position of 'B' Store Ass (Liquor Store Manager 2) and circulate them fort of the original applicants for Job Posting #910. applicants are to be informed that the original procedure has been found by this Board to have b and they are to be invited to submit a statement qualifications for the positions (four in number wish to reapply. The employer shall allow a rea reapplication. Only the original applicants sha to reapply. 2.Within 30 days from the release of this awar shall establish a procedure for selecting from a candidates, specifying the personnel to be invol documents to be placed before them, and the mann the selection shall operate, and it shall meet w tives of the Union to discuss the adequacy of th If there is any dispute about the procedure to b this Board remains seized to determine same. If days from the time of the meeting with the Union, the Union has not moved to have this Board determine such a dispute, the employer shall put the procedure into effect. 3.The time limits specified above may be varied on the mutual agreement of the parties. 4.Employees who are promoted as a result of the procedure specified above shall have their appointments backdated to September 1st, 1981. However, the the purposes of Article 16.10 of the Collective Agreement, the three month period specified therein shall begin on the date on which the appointment is announced. 5.This Board shall remain seized to determine any disputes arising out of the implementation of this award, including (but not restricted to) any disputes that may arise as to incidental compensation. Because we are confident that the employer will make every effort to implement the terms of this award in good faith, we are not prepared to concede the Union's request that we provide for the attendance of a Union observer at the selection meeting. This does not mean, however, that the - 26- parties may not mutually agree, if they so desire, to have such an observer present. DATED at Toronto this 12th day of August, 1982. S. Lk Linden, Q.C. Vim, Chairnmn P. Craven Member //, J.H. Morrow Member