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HomeMy WebLinkAbout1981-0506.MacLellan and DeGrandis.82-05-18iS THE MATTER OF AN ARBITXBTIGN Under T!% CRG%'X EWLOYEES COLLECTIVE SARGAINIXG ACT lefore Between : i.. Before : GFSEL' (G. XacLellaz and E. i)eGraiidis) GZiPVOYS - A2d - The Croxo in Right cf Cmtario (Lliristry of Goverxiect Servicesj Employer J . \v . Samuals Vice Cbairrmn S.J. Dc~kle:? ~.' Member X.2. L aia g Xem'oer for the Grievers: 2.J. S‘nilton ienncn: Comse: Gn?den-Lecinson i _ I, ? :c _ : I CONTENTS INTRODUCTION ......................................... THE JOB OF APPRAISING SUPERVISOR. .................... THE SECOND SELECTION PROCESS ......................... QUALIFICATIONS AND ABILITY ............................ a. B. DeGrandis ................................ b. G. MacLellan ............................... : C. D. Canning .................................. d. D. Spiers .................................. ARGUMENTS OF THE PARTIES........;.....,......- ........ a. Union ...................................... b. Employer ................................... CONCLUSIONS......: ................................... LIST OF EXHIBITS ..................................... S.J. DUNKLEY'SDISSENT .......................................... 3 6 a 14 14 17 18 2.0 22 22 24 25 30 1 5 , i I i -3- ( INTRODUCTION' The grievors have filed two grievances each con- cerning a competition for two Appraising Supervisor posi- .-, ..+ 'tions classified as Real Estate Officer 2, in the Realty Services Branch of the Ministry of Government Services. They ask that the results of the competition be.,qet,aside, the incumbents be removed from their jobs, and the positions ;r be given to the grievors. The competition ~began with a notice posted in late-May or early-June 1981. It read: Realty Services Branch has two vacancies for Appraising Supervisors. The incumbent will e- valuate performance of staff;' schedule workload, vacations etc., provide guidance and instructions on complex problems and ensure correctness of assignments prior to making recommendations to Chief: as well as to appraise properties of a highly complex nature. Extensive travel through- out Province is a requirement of these positions. QUALIFICATIONS: Several years experience in the appraisal field. Thorough knowledge of the three methods of appraisal and of values and trends in real estate market throughout Ontario. Familiarity with building construction, soil conditions etc. plus additional knowledge usually gained through recognized related courses, for example, A.A.C.I. In July 1981, over a two-day period, the ten applicants were interviewed, and Messrs. D. Canning and E. McLean were chosen for the positions. Each grievor then filed his first grievance. After some discussion with the grievors and the Union, management accepted that the first set of interviews were deficient for a number of reasons: a. .,, .,‘~ b. C. c- a. ,.-,, e. -4- Personnel files and performance appraisals were not reviewed: References were not obtained for all the can- didates; The advertised qualifications were not con- sistent with the Position Specification; and the posting left off a clear requirement for supervisory ability: One of the members of the selection board was absent on the first day of interviews when the grievors were before the panel. Thus, there was an allegation of preferential treatment; And it was alleged that-the questions and answers, prepared beforehand and put to the applicants at the interview, had been leaked before the interviews took place. ( ~.-.;I ~.Therefore, management did what it thought was required pursuant to the jurisprudence of this Board. The results were withdrawn, and the applicants were told they would undergo a second set of interviews. The notice concerning these interviews was accompanied by a copy of the Position Specification for the applicants' information, and the admonition to review it "to ensure that you understand the duties involved". The second set of interviews took place in one day I in September 1981, and the successful applicants were Messrs. i , ‘;;. // -5- .’ D. Canning and D. Spiers. Again, each grievor filed a grie- Vance. From the time of the first set of interviews, the grievors and the Union have objected to the remedychosen by management. It has been argued consistently that the grievors should be given the two positions on the basis of Article 4.3 of the Collective Agreement. This provides: "In filling'a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consider- ation." Thlii grievors have more seniority than any of the successful candidates, from both sets of interviews. _. We heard evidence on March 5 and 26, and April 28, 1982. This evidence concerned the circumstancesbfYthe second selection process, and the qualifications of the two grievors and the two final successful candidates. There was virtually nothing said about the qualifications, ability, or. seniority of the other candidates. Thus, there was clearly insufficient evidence for this Board to respond to the first grievances by ordering the grievors into the positions. We simply cannot say that the relative qualifications and abilities of the candidates were equal, or that the grievors were the most senior applicants. Therefore, the Employer's remedy cannot be questioned and the first set of grievances is denied. We must record that the two successful candidates, Messrs. D..Canning and D. Spiers, were present throughout our hearings, and participated. They knew of their right to independent counsel, and waived their rights -in favor of personal participation; Finally, by way of introduction, we note that the Union waived any right to ,claim bias or conflict of interest r, s as a result of the fact that, during the course of our hearings, Ms. Laing commenced employment with the Attorney- : General of the Province. THE 'JOB OF APPRAISING SUPERVISOR The position in question is in the Appraisal Unit of the Land'Transfer Section, Realty Services Branch, Mini- stry of Government Services. The Appraisal Unit has three sub-groups: - MNR/Housing Townsite/Capital Construction - Environment/Sales Other - Parkway Belt/Sales Each sub-group is headed by a Chief Appraiser, and beneath him (or her) there are one or more Appraising Supervisors and below them come the appraisers. The vacant positions were in MNR, etc. and Environment. The' Position Specification for the job of Appraising Supervisor reads, in part: I -7- 7. ‘. Summary of Position: To supervise appraisers, co-ordinate and review their appraisals to determine fair market value of properties for purchase or sale. To appraise personally the more complex and controversial properties and high value properties (over $100,000). 8. 1. 65% - Duties and Responsibilities (Use Position Analysis Guide Format including time percentage for each Key Duty): Carries out appraisals to determine fair ,market value of property prior to its purchase or sale, by:- obtaining from the Chief Appraiser a Copy of client request, information on subject pro- perty collected by Documents Sub-section (eg. assessment records, latest deeds, sketch registry office search sheet, etc.) and as required, suggestions on appraisal approach, additional information required, persons to contact, etc.: obtaining background information from office files and local realtors on area values, rentals, assessments, taxes, zoning and building by-laws, health regulations, avail- able services, etc.: measuring and photographing property and pre- paring sketches: formulating method of-approach to the appraisal; ie. Income Approach, Cost Approach, Comparable Approach or combination of these: performing follow-up searches of documents, titles, mortgages and obtaining information on comparable properties, prices, etc. by visiting Registry Offices; inspecting comparable properties for value comparision of such factors as type and condition of building(s), topography, soil conditions, etc.: talking with owners of comparable properties about price levels, land use, etc., exer- cising discretion to avoid causing specula- tion; discussing with Chief Appraisers, any unusual problems or complications; preparing a clear and concise appraisal report, making recommendations as to fair market value for purchase or sale, describing factors which determine value, forwarding report to Chief Appraiser for review and discussion. - 6 - 2. 25% _. 3. 10% - Supervises aopraisal staff by:- assignzng appraisal projects and providing background information, special instructions, critical dates, etc.: providing .advice and guidance to subordinate staff on any problems or complications as required, eg. when incumbent and subordinate are working together on a large project); assessing appraisals carried out by sub- ordinate staff by reviewing and approving/re- jecting appraisals up to $15,000 and by reviewing and submitting appraisals over $15,000 to Chief Appraiser for approval; training subordinate staff by demonstrating accepted appraisal techniques and methods; assessing subordinates' performance, recom- mending the granting or withholding of merit - increases; granting time off, co-ordinating vacation schedules. Performs other related duties:- upon reauest and with concurrence of Chief Negotiator, negotiating for property after completion and approval of appraisal, eq. for- small or remote properties: supervising a field office when established including: control of subordinate appraisers and secretarial staff, ordering and maintain- ing office supplies and furniture, collecting classifying and plotting of sales data and. production of a Property Owners' Book; assuming duties and responsibilities of Chief Appraiser during his absence; as assigned. THE SECOND SELECTION PROCESS Apart from the evidence of the four candidates in- volved, we heard evidence concerning the second selection process from Mr. W. Lejbjuk (Senior Personnel Administrator of the Personnel Branch in the Ministry of Government Services), Mr. P. Dickson (Chief Appraiser-Natural Resources, Housing and Townsites and Capital Construction, Land Transfer Section, Realty Services Branch, in the same Ministry), Mr:G. Hamilton - 9. - (Appraising Supervisor, Land Transfer Section, Realty Services Rranch, in the same Ministry), and Mr. W. Jobe (Assistant Director of the Land Transfer Section, Realty Services Branch, in the Ministry of Government Services). From all of this evidence, it appears that the selection process was as follows: 1. The process began with the notice of re-run already mentioned in the Introduction. 2. ,A~set of fifteen questions was prepared for the interviews, and the questions were accom- panied by model answers.,.The part ofthe questionnaire dealing with supervisory mat- ters was developed by Mr. Lejbjuk, and the part dealing with technical matters was prepared by Mr. Jobe. There appears to have been no problem whatsoever of lack of secrecy concerning these questions,and answers before the interviews. 3. The breakdown of,marks for the answers was.66 for technical and 34 for supervisory ques- tions. The Union raised certain concerns about the nature of the questions and answers dealing with supervisory skills, so it would be useful to reproduce this part of the prepared interview questionnaire: LEADERSHIP SKILLS 1. Question - You have an employee who is dissatisfied with his working con- ditions, i.e. the section of the Province he is working in, the - 10 - additional work which he claims he is doing which others are'not, and your recent denial of his acceler- ated merit increase. HOW would you handle this employee? Answer - Discuss the various topics with him pointing out that: 1. The section of the Province iS -2 a condition of emplovment that was discussed with him when he was hired. 2. The additional work is to be -2 noted by him and. forwarded to -me (supervisor) who would re- zew it with the Personnel Branch. 3. Accelerated merit increase, it -2 is felt that his performance is average/satisfactory. 2. Question - YOU have an appraiser under supervision who is the top producer in your unit. However, you and other subordinate staff members have noticed that this employee has adopted erratic working hours. In addition, his 'overall attitude could be construed as somewhat pompous. For example, several days a week he comes in late or leaves early. Also lengthy lunch hours have become a habit. Nevertheless, 'this employee is maintaining a high level of production and his quality of work is above average. Do you think any action should be taken on your part, and why? Answer -' Y&. Discuss with the employee that his attendance is a crucial part of his%ork perfbrmance and that he is 'eooardizing3his future. Tell him'that he has-to conform to the hours of workmr8edrately. Praisg him regarding his above average quality Of work. Neglecting to confront this mvidual would cause poor'morale, drop in level'of production by other members of the unit. 3. Question - Within your unit you have 5 appraisers who are assigned projects throughout the province. What action would you take to ensure efficient performance by the unit? List 5 possible answers. - 11 - Answer - 1. Make sure all staff are aware of deadlines and scheduling methods. 2. Brief them as comprehensively as possible. 3. Insist on high standards. 4. Encourage them to co- operate with each other. 5. Arrange for basic informa- tion to be readily available, properly filed, etc., to pre- vent unnecessary duplication of effort. 6. Be available to discuss pro- blems .with them. 7. Hold special meetings to discuss special problems. 8. Listen to staff suggestions. 9. Etc. PROBLEM ANALYSIS/DECISION MAKING SKILLS 1. Question - Would you explain the step you would take to reach a decision when confronted with a management/ procedural prdbiem? Answer - 1. 'D~efine problem, gather rel$vant information. 2. "Assess the ,implicat!ons of polic'ies' and guidelines "affecting the' desired objec- tives. 3. Bnal$e the data- while making observati&n's, COnClU- :~sions and modifications. 4. Assess Alternatives‘while considering risks. 5. Making recommendatiogs which coin&de with the~orqanizational wm lzment and mon>tor the risu* TRAINING SKILLS 1. Question - Have you had any experience xn conducting training assessions. -1 Y&s/No. HOW did, or would you, undertake and follow through with the task. - 12 - Answer - 1. Establish the need for training. 2. Establish the objectives. 3. Prepare all material related -5 to the needs/objectives.. 4. Present the session. 5. Review to ensure objectives are met, revise session if not. 4. All the applicants were interviewed in one day. The interviews lasted at least 45 minutes each, during which the members of the panel (the four persons named at the beginning of this section, ~toqether with Mr. G. XacDonald, the Chief Appraiser, who did not appear before us at the hearings) each asked various questions of the candidates. Each member of the panel kept his own notes of the answers given. At the end of the interviews, the panel convened to assign points for each question to each applicant. Mr. Lejbjuk did not participate in this rating process, but recorded the concensus marks assigned by the other four members of the panel. At our hearing, we received Mr. Lejbjuk's notes of the answers of Messrs. DeGrandis, MacLellan, Spiers and Canning. After some considera- tion, and bearing in mind the questions raised by Messrs. DeGrandis and MacLellan concerning the accuracy of these notes, I have decided that we cannot base any judgment on these documents because they do not alone - 13 - 5. The results recorded by ?lr. Lejbjuk showed Mr. Spiers having 65 points; Mr. Canning had 62, then followed the rest of the candidates, with Mr. MacLellan standing 5th with 59, and Mr. DeGrandis coming last with 46. The other successful candidate in the first selection process, Mr. McLean, came 6th this time with 58 points. 6. Then the panel reviewed the personnel files of all the applicants, got references from the supervisors of all the candiates (on this point, some of the testimony was a bit un- clear, but on balance I accept that for each candidate there was at least one reference from someone who had been his supervisor -- indeed, in many cases this was one or more of the members of the panel), and looked at the application forms for the past experience of the candidates. No points were assigned, or priority-ranking established, with respect.to all of this information. It was "considered". 7. In the end, the panel concluded unanimously to select Messrs. Canning and Spiers. All those members of the panel who testified at our hearing confirmed that they placed most emphasis on supervisory skills, because this position is a supervisory one. Indeed, it appears that the Employer has the authority 8. - 14 - to remove the position from the bargaining unit, but is awaiting the outcome of this matter. The evidence seems to indicate that the fact that the position‘may be deleted from the bargaining unit was not a real consideration in the deliberations, but was a clear part of the background. While the Position Specification for the Appraising Supervisor suggests the need for "successful completion of all exams of A.A.C.I. course, or its equivalent. Preferable full A.A.C.I. accreditation", none of ~the appli- cants had this accreditation. The candidates were not rankled according to how close they were to the desired educational level. QUALIFICATIONS ARDABILITY a. B. DeGrandis Mr. DeGrandis is one of the qrievors, and is and was at the relevant time a Real Estate Officer 1 in the Appraisal Unit, in the sub-group dealing with Environment/ Sales Other. His job is to appraise real estate for projects of the Ministry of the Environment, where land is to be acquired for water and sewer construction or easements. Be prepares narrative reports and letters of opinion, doing roughly 35 appraisal reports per year. As an REO 1, he is a - 15 - senior appraiser and does the difficult appraisals. Some of these projects involve :several million dollars, with roughly one-half of them involving more than $200,000, and 50-608 involving vacant land. In his very complete application, Mr. DeGrandis set out his qualifications and experience. He had been. ,employed by the Province for 10 years, seven of these with the Ministry of Transportation and Communications, and three with Government Services. With MTC, he had acted as a property negotiator, property manager, and property appraiser. He set out fully his duties in these capacities,' and they need not be rehearsed here. With MGS, he had done appraisal work in three sub-groups -- Housing/Townsites/MNR, the aid Capital Construction and Sales, and Environment/Sales. With respect to supervisory experience, the appli- cation referred to his time in MTC as an Acting Appraisal Supervisor, when he scheduled workloads, trained staff, and performed qualitative analysis of work products submitted by staff a$d fee appraisers. In testimony before this Board, this experience was discussed and it appears that he filled in on an informal basis when his supervisor was absent. At our hearing, we also learned of occasions when Mr. DeGrandis filled in for his supervisor while employed by MGS. .It appears that this was never for more than eiqht consecutive days, but did occur fairly frequently. From April 1979 to September 1980, while he worked in Capital Construction and ,i i - 16 - i Sales, he is recorded as having done supervisory work for 60 days. It is significant that this MGS supervisory experi-. ence .was not on his application form. At the second inter- .. view, once Mr. DeGrandis realized how much emphasis. was being placed on supervisory skills, he attempted to submit further documentation, but this was turned down because no other applicant had submitted further information. f-’ With respect to his education, he holds a pro- fessional certificate from the Appraisal Institute of Canada " and has completed all the course work for the A.A.C.I. certificate. He has the SR/WA designation from the Inter- national Right-of Way Association. He has a.BA in English Literature from the University of Waterloo. In his employee performance appraisals, Mr. DeGrandis comes across as a conscientious employee who does his work well. In May 1981, Mr. MacDonald rated him "above average". In November 1980, Mr. Babiarz rated him "most satisfactory". In May 1980, Mr. Babiarz said he "excels", and commented "potentially promotable if trained in com- pletion of related real estate courses". There is really no adverse comment in the summary offered to us at the hearing. The rating categories are defined as: EXCELS: Consistently exceeds standards or norms for responsibilities. Indicates desire to improve and progress. Management should provide training for promotion. - 17 - SATISFACTORY: MARGINAL: Performance satisfactory, dependable and capable in carrying out job responsi- bilities. Employee should be encouraged to prepare for promotional training; Inability to perform satis- factorily under normal work conditions and supervision, to anticipate action required, and to cooperate. Employee should be requested to improve. UNSATISFACTORY: Incapable of. fulfilling job requirements, unreliable, poor attitude and/or uncooperative. Employee should be reassigned or released. b. G. MacLellan Mr. MacLellan is One of the grievors. At the time of the job posting, he was a Property Agent 2 (a classifica- tion beneath REO 1) on a career rotation in the Property Administration Section of the Realty Services Branch in the Ministry of Government Services. In this capacity, he was responsible for the management of Government-owned lands in Oshawa and east to the Quebec border, as well as elsewhere. From 1974 to his posting on the career rotation, he served as a property agent and appraiser in the Realty,Services Branch. He appears to have had a very wide experience in appraisal. From 1965-1974, he was a property assessor in the Ministry of Revenue. Concerning supervisory experience, - 18 - :' vision has also been acquired", with respect to his time with the ,Ministry of Government Services..since 1974. It ~~.~~ appeared in testimony that this was a,period of two to three consecutive months in the latter part of 1978 when he scheduled workloads, assigned jobs, C-formed (created new files chief I and checked on the whereabouts of employees for his His employee performance appraisals were almost invariably "satisfactory". It must be borne in mind that he was being rated as a Property Agent 2. With respect to education, Mr. MacLellan had one year at university, held a Municipal Assessment Certificate (M.I.M.A.), and had completed a number of courses of .the Appraisal Institute of Canada. I accept the Employer's evidence that the M.I.M.A. is not at all-equivalent to the certificate of the A.A.C.I. He had also completed several courses offered by the Ministry. C. D. Canning _I Mr. Canning was a successful candidate .in both the first and second selection processes. He joined the Ministry in 1979 as a Property Agent 2, became an RED 1 shortly thereafter, and for the few months before the competition in question he served as the Acting Appraising Supervisor. Thus, he had the opportunity to demonstrate his supervisory abilities in the job which he was now seeking on a permanent basis. Before coming to.the Ministry, he had been in the real estate field since 1971. At that time, he received his salesman's licence and worked in the field, while accumula-. ting credit in a number of real estate and appraisal courses. In 1973, he got his broker's licence and opened his own business. The business did land assembly for client de- velopers and he supervised the staff. In 1976, he moved to employment with the Great Atlantic and Pacific Company (A 6 P) I becoming an Assistant Director of Real Estate. In this capacity, he supervised staff, prepared feasibility studies for new store locations and expansion of existing stores, appraised values of potential sites, and negotiated leases and property purchases. He left the A& P when there was a cutback in 1978. In November 1979, after less than a year's service with the Ministry of Government Services, he was asked-to.. take over the disposition program for the ClientMinistry of Natural Resources. While he was not titled as a supervisor, he allocated work, reviewed appraisals, and gave time off and vacations. He did not sign expense accounts or bi- monthly time sheets, do performance appraisals or disci- pline. He appears to have more experience appraising waterlots than Messrs. Spiers, DeGrandis or MacLellan, but the significance of this experience is not clear. Some - - 20 - suggestion was made that these. appraisals are more difficult technically than other appraisals, but the evidence on this point was not convincing. Mr. Canning's educational.accomplishments include an O.R.E.A. certificate from Seneca College, a number of appraisal and real estate courses, and all but the demon- stration report to attain C.R.A. designation. He is a Senior Member of the National Association of Review Ap- praisers, and has his broker's licence. I find it somewhat questionable that Mr. Canning included on his application form courses he had not completed successfully, particularly because this lack of success was not known by all the mem- bers of the selection panel. His performance appraisals while with the Ministry shown him to be an excellent employee. The usual rating is "excels", and mention is made of the possibility of pro- motion to PE0 2. _-.. d. D. Spiers Mr. Spiers was one of the successful candidates in the second selection process. He was a Property Agent 2 at the time of the competition. Upon joining the Ministry in 1973, he became a leasing agent in the leasing section, pro- viding client ministries with commercial office space in downtown areas. Then, from October 1974 to July 1976, he - 21 - . ,--~worked in the interim property management section. This unit provided management services for properties pending ultimate usage. For the last seven months of th,is period, he was the Acting Chief Supervisor, and assigned work, recommended and reviewed tender documents, supervised staff, prepared background material for budget purposes, approved expense accounts and assigned vacations. In July 1976, he moved to the Appraisal Unit as an appraiser in the Parkway Belt group. Parkway Belt is concerned with the acquisition of land pursuant to legislation. There was considerable com- ment from witnesses for the Employer concerning the tech- nical complexity of this work., Howevei?, it appears that almost all the employees in the section are classified Property Agent 2, which is below REO 1. In my view, this classification speaks for itself. It is not reasonable for the Employer to argue that the work is so complex, when the employees doing it are not classified at the P.EO 1 level. It is this latter level which does the more difficult ap- praisals. Mr. Spiers' education includes some time at Ryerson Polytechnical Institute, Sir George Williams Uni- versity and a number of appraisal courses. By the time of the interview, he had completed all the courses necessary to be an appraiser under the Appraisals Institute, and had done one of the three demonstration reports needed. H.e had - 22 - I entered a three-year program in public administration at Ryerson, and had completed three of the seven credits for the degree. His performance appraisals show him to be an ex- _, I cellent employee. Generally his rating was "excels" or "above average". And much mention was made of the possi- bility of promotion. ,I' (~ ARGUMENTS OF THE PARTIES a. Union On behalf of.the grievors, Ms. Lennon argued that the Employer had not conducted the competition according to the requirements of the Collective Agreement and the juris- prudence of this Board, and that after two bad attempts to do so, the Employer should now be ordered to give the posi- tions to Messrs. DeGrandis and MacLellan. She pointed out that the notice of the second selection process did not make clear enough the emphasis to be placed on supervisory skills, and even if it did, there was no opportunity for the candidates to submit additional information in light of this new emphasis. With respect to the interviews, she suggested that / adequate records should have been kept of the answers, - 23 -, I either on tape or by shorthand. There was too'much room left for 'subjectivity, and some of.the questions (particu- larly concerning leadership skills) were much too abstract. The method of.considering the factors other than the answers at the interview left much to be desired. NO priority was assigned. There was no way of weighting fac- tors in order to compare someone with good educational qualifications but lesser supervisory~experience, with someone with lesser educational achievements but greater supervisory experience. The references obtained were not adequate. She suggested that there were not references for all ten candi- dates, and that the question asked of the references was to compare Messrs. DeGrandis and MacLellan with Canning and Spiers. She suggested that the emphasis placed on super- visory skills was unwarranted in light of the Position Specification. Turning to the relative qualifications and ability, she argued ~that they are at last equal for the two grievors and the two successful candidates, and therefore the grievors' seniority should give them the edge under Article 4.3. There must be a substantial and demonstrable difference between employees in order for seniority to be, set aside - ( - 24 - Re Textile Workers Union and Lady Galt Towels Ltd. (1969), 20 L.A.C. 382 (Christie), at 385; Re Northern Electric Co. Ltd. and United Automobile Workers, Local 1839 (1977), 14 L.A.C. (2d) 167 (Simmons), at 171-2; and Saras, 139/79, .at 10. The test results were not a reliable indicator Of a substantial difference, because the candidates did differ- ently on the tests in the'two selection interviews, and the margins were not wide enough to be significant. She re- ferred to Lethbridqe, 603/80, at 3 and 7. She argued that this Board has the jurisdiction to order the jobs to the grievors, citing-Zuibrycki, 100/76; Marks, 566/80; and Newburn and Phillips, 485/81 and 486/81. Furthermore, she said that we had to consider the fact that we have no evidence concerning the relative qualifications and abilities of the other candidates, but it is time to i, call a halt to this selection process by awarding the jobs to the grievors. b. Employer On behalf of the Employer, Ms. Kulman argued that there was no evidence showing that Messrs. Canning and Spiers weren't the best candidates. Management can. deter- mine the selection criteria and the importance to be at- / tached to each. - 25 - The second selection process was properly done, and the decision, made was the only one to be made. The interview questions related to the Position Specification: the .selection criteria were consistent with the job; all the panel 'members knew the job: the same questions were asked each applicant: the answers were recorded; the personnel ,~.. files, performance appraisals, and ,references ware icon- sidered; there was sufficient information to allow a fair comparison of the applicants. She said that taping the interviews, or taking down the answers by shorthand re- porter, would have simply added to the tension of the event. Messrs. Canning and Spiers were better than the.grievors both technically and in supervisory skills. CONCLUSIONS The jurisprudence of this Board has established various criteria by which to judge a selection process: 1. Candidates must be eva;uated on all the rele- vant qualifications for the job as set out ,in the Position Specification. 2. The various methods used to assess the can- didates should address these relevant quali- fications insofar as'is possible. For ex- ample, interview questions and evaluation forms should cover all the qualifications~. 3. Irrelevant factors should not be considered. i - 26 - d. All the members of a selection committee should review the personnel files of all the applicants. 5. The applicants' supervisors should be asked for their evaluations of the applicants. 6. Information should be accumulated in a systematic way concerning all the applicants. See Remark, 149/77; Quinn, 9/78; Hoffman, 22/79; Ellsworth et al, 361/80; and Cross, 339/91. In our case, we are dealing with a job which re- quires 65% of one's time to be spent doing appraisals, 25% of the time supervising appraising staff, and 10% doing re- lated duties; The supervisory duties are basically ones in- volving advice to subordinates, overseeing the work of subordinates, training, assessing performance, granting time off and coordinating vacation schedules. There are no budgetary duties, nor does the Appraising Supervisor mete out discipline. The appraising duties appear to cover the general type of work in the Appraisal Unit. What do we know of the four candidates in these areas? At the outset, I am willing to accept that the interviews were conducted fairly and that the scores were based on a fair combined record of the answers given. The technical questions are fair ones. The scores on these questions were as follows: - 27 - Spiers 46 Canning 39 MacLellan 39 DeGrandis 33 Thus, the interview scores would seem to indicate that Mr. Spiers is the best technically, Messrs. Canning and MacLellan are equal, and Mr. DeGrandis is below the other three. However, I do not think that the other evidence confirms this. In the first place, the work experience of all four is roughly equal insofar as technical expertise is con- " cerned. I have already said that I do not accept the Employer's suggestions concerning the complexity of waterlot appraisals (of which Mr. Canning seems to have done the most), or work in the,Parkway Belt (of which Mr. Spiers has done the most). Secondly, in light of the fact that, at the first interviews, Mr. DeGrandis came third, I think it is doubtful that his score on the second interview is a fair reflection of his technical ability. Thirdly, while I am a layman, I must say that the evidence of Mr. DeGrandis~on technical matters was given in a very forthright and lucid fashion. If he doesn't know his stuff, he can give a very good impression of someone who'does. Fourthly, his tech- nical expertise is attested to in the performance appraisals over the years. In sum, looking at all the testimony and documentary evidence, I have concluded that the technical qualification and abilities of all four men are equal. Turning to the supervisory abilities, there is no doubt that both Messrs. Canning and Spiers have greater experience than Messrs. MacLellan and DeGrandis. .One point to be mentioned, however, is that there appears to have been no enquiry on the quality of Mr. Canning's experience at A L P or as a broker. He may; in fact, have had a very bad time as a supervisor. It is his time as an Acting Appraising Supervisor which is most significant. At the interviews, the scores on the supervisory matters were: Spiers 19 Canning MacLellan :ifi DeGrandis 13 However, I have grave doubts about the usefulness of these scores as an indicator of supervisory skill because of the questions which were asked. It may be very difficult to assess the type of supervisory skills needed for this job by a question and answer method at an interview. Therefore, I am not commenting on the questions relative to what might have been asked. It suffices to say that the questions which were asked will generate answers which seem very difficult to grade properly. For example: Question - Within your unit you have 5 appraisers who are assigned pro- jects throughout the province. What action would you take to ensure efficient performance by the unit? List 5 possible answers Question - Would you explain the step you would take to reach a decision when confronted with a management/ procedural problem? In sum, I think that the supervisory experience alone is enough to give an edge to Messrs. Canning and Spiers. The conclusion of all of this, is that the successful csndidates do aaqear to have the Setter qualifications and - 29 - ability, bearing in mind all of the requirements of the job as set out in the Position Specifikarion. There- fore, the grievances are denied. DATED at London, Ontario, this 18th day of Uay, 1962. Vice-Chairman "I dissent" (see attached) S.J. Dunkley Member H.J. Laing Member - 30 - LIST OF EXHIBITS 1. Grievance Form 506/91 2. Grievance Form 507/81 3. Grievance Form 690/81 4. Grievance Form 691/81 5. Letter to Mr. Canning 6. Letter to Mr. Spiers 7. Concerning the representation of Messrs. Canning and Spiers 8. Collective Agreement 9. Distribution of Personnel, Appraisal Unit 10. Position Specification: Appraising Supervisor .11. Job posting, showing Closing Date June 12, 1981 12. Application of Mr. DeGrandis 13. Time allocation records, Capital Construction and Sales 14. Results of competition, July 7, 1981 15. Memorandum to Mr. DeGrandis, September 1, 1981 16. Memorandum to Mr. MacLellan, September 1, 1981 17. Notice of second competition 18. Question and answer sheet 19. Record of answers, DeGrandis 20. Idem, Spiers 21. Idem, Canning 22. Score sheet, DeGrandis 23. Idem, Spiers 24. Idem, Canning 25. Application of Mr. Canning 26. Application of Mr. Spiers '- 31- 27. Concerning Mr. DeGrandis, summary of~employee performance appraisal reports 28. - Idem, Spiers 20. Idem, Canning -, 30 ., Application Of Mr. MaCLellan 31.~.;.Concerning Mr. MacLellan, summary of employee performance appraisal reports ' 32. Score sheet, MacLellan 33. Memorandum, November 20, 1979 . Memoranda concerning Mr. Spiers, 1976 34 35 36 . Application of Mr. McLean All score sheets . 37. Re first interview 38. Submission to interview board from Mr. DeGrandis, September 21, 1981 39. Organization Chart - Appraisals - March 23, 1981 40. Notes by Mr. Lejbjuk of Mr. MacLellan's answers 41. Category definitions on Employee Performance Appraisal Reports , DISSENT fin the fair and impartial interpretation of a union ~agreement the primary element must be one of trust and earned respect for the intentions of the,.employer. Throughout this.hearing it was clearly indicated that the differences of qualification of the grievors and winners of the competition were of no great degree. It was obvious that a second set of competitions was needed and it would have been a simple matter at that time to place greater emphasis on the ability "to supervise". Supervision is a qualification that is primarily gained by experience and in the opportunities afforded the grievors they seemed to be assuming the abilities. Some points brought out during the hearing were emphasized out of proportion. The successful candidates seemed to get way over their heads in describing the appraisal of "water lots", a facet that was involved in 5% of appraisals at a maximum. Both grievors appeared to have the technical knowledge and experience that would allow their seniority to have mqre importance than was allowed in the selection process. -2- The evidence given by the off:icials who composed ,. the tests and interviewed the candidates seemed to indicate an attitude of serendipity rather than objectivity. Sarks for the tests were 66 for technical and 34 for sup,ervisory questions, despite this the employer witnesses continued to stress that the main criteria was "for supervision". Once again I come back to tne position that employers enjoy in that they make t,he final decision. This is an earned position and is.made valid by making all competitions fair and clearly seen to be open and just. As counsel for the grievers so aptly stated "pro- motion will not always be by seniority but in all cases it should be one of the main factors in the selection." It was pointed out that the grievors were but a minority of those who competed, however they are the important minority who are concerned enough to try to improve the interpretation of the union agreement and insure fairness in competitions and promotions. They are to be congratulated for their persistence. In summation I would point out that the first competition was so flawedthat a second set was necessary and in my opinion the second set was not much of an improvement on the first. I believe rhe employer should have kept trying until they got it right. - 3- Taking these.points into consideration I dissent frpm the opinion of the vice-chairman.