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HomeMy WebLinkAbout1977-0011.Morten and Taynen.78-04-25IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Messrs. Richard Morton & John E. Taynen (Grievors) And The Ministry of the Attorney General (Employer) Before Professor G. W. Adams - Chairman Mr. Victor P. Harris - Member Mr. Dan Anderson - Member For the Grievor Mr. George Richards, Ontario Public Service Employees Union 1901 Yonge Street Toronto, Ontario For the Employer Mr. Brian Pitkin, _s Personnel Officer Ministry of the Attorney General Toronto, Ontario Hear!ng: Suite 405, 77 Bloor St. W., Toronto, Ontario February 17th, 1978 . . -2- In this matter the grievors. Richard Morton and John E. Taynen, grieve that they were by-passed for promotion by persons with less seniority, contrary to the collective agreement. Two Sheriffs' Officer 2 positions were posted and five applications were filed by employees. Two were, of course, those of the grievors. The other three were filed by Messrs. Sustrund, Lowery and Moore. Lowery and Moore were the successful applicants. Sustrund did not file a grievance. Lowery and Moore were notified by the employer of the date of this hearing; that they might be affected by the Board's decision; and that, accordingly, they 'had a right to be present and to participate in the proceedings. They were also advised that they could be represented by cotinsel if they wished. Both gentlemen appeared as witnesses, called by the employer; but neither participated in any other way. Messrs Moore, Lowery, Morton and Taynen were all employed as Sheriff's Officers 1 at the time they applied for then posted vacancies and each man's total seniority related to this position. At the time the applications were made Moore possessed almost four years' seniority; Lowery had one and one half years; and Morton and Taynen'both possessed nine years of seniority. The Staffing Standards Manual contains a class series' description for the Sheriff's Officer 1 and 2 positions which is in the following terms: -3- SHERIFF'S OFFICER I. - 30600 EDUCATION: Successful completion of two years of secondary schooling. EXPERIENCE: Some familiarity with court documents or knowledge of serving procedures preferred. Ability to maintain records. Experience in dealing with the public. Driver's license. PERSONAL SUITABILITY Mature judgement, able to exercise tact and patience in the face of provocation. Well groomed and in good physical condition. SHERIFF"S OFFICER 2 - 30602 EDUCATION: Successful completion of two years of secondary schooling. ..~ EXPERIENCE: Experience in dealing with the public. A knowledge of court documents and some experience at the Sheriff's officer 1 level preferred. Ability to maintain records. Driver's license. PERSONAL SVITABILITY Mature judgement, ability to exercise tact and patience in the face of proVocation. Initiative in assessing individual situations. Well groomed and in good physical condition. A more detailed description of the Sheriff's Officer 2 position is found in the class standard which reads: T. SHERIFF'S OFFICER 2 This class covers positions of employees whoexecute Writs~ of Fi Fa and perform other functions connected with the Sheriff's Office, such as escorting prisoners, serving legal documents pertain- ing to civil and criminal litigation , serving Notices of Arrest of Vessel and reading Injunction Orders to Union Officials, etc. These employees work with little supervision. They receive documents from the Sheriff's Office, set priorities and time of visits, interview defendants in Writs of Fi Fa to determine whether full or partial payment can be made to satisfy judgement and expenses, decide whether parties possess goods and chattels suitable for seizure, seize goods and arrange remval to a pre-determined location, serve Notices to Vacate and evict tenants where notice has been ignored. In addition, they prepare reports on execution of Writs and Orders and arrange meetings between defendants, plaintiffs and their Solicitors. They may be required to apprehend persons in the execution -4- of a Sheriff's Warrant or conduct public auctions for the sale Of seized goods. They also communicate with legal firms to exchange or obtain further information. These employees spend at least 70% of their time in the execution of Writs of Fi Fa with at least 25% of this time involving Seizures, Evictions, Sheriff's Sales. Because of the nature of the work, this frequently takes place after normal working hours. SKILLS AND KNOWLEDGE REQC'IRED: These employees require persistence and patience, and need to use considerable initiative and judgement in the performance of their duties. Maturity, .stability and the ability to deal effectively and firmly with people are essential. Because of the possibility of physical assault, they need to be in good physical condition and able to With- stand unusual provocation. It's also useful, at the outset, to compare the actual position specifications for Sheriff's Officer 1 and 2. They appear in the following terms: 1. Position Title: ~: SHERIFF'S OFFICER (Field Process Servdr) Sheriff's Officer 1 Immediate SupG!visor's Title: Supervisor, Sheriff's Officer Ministry: Division: Attorney General Administration of Justice Branch: Section: Location: County & District Cts. Sheriff's office Judicial District of York, Toronto 2. Purpose of Position: To effect the personal service of documents pertaining to civil and criminal litigation in an assigned area within the County of York. 3. SLTMMARY OF DUTIES AND RESPONSIBILITIF.6, ETC. (1) As a Process Serving Officer on rotating nzrning and evening work hours performs such tasks as: 80% - receiving documents to be served in a designated area and determining priorities; - effecting personal service on persons named in document after establishing identity of person to be served; - obtaining signature and securing photograph of person served in matrimonial causes, actions: - operating motor vehicle in the course of scheduled or assigned duties; - maintaining record of all calls including location, time, mileage reading and results of attendance; -5- --maintaining the proper care of a vehicle by attending to proger and scheduled maintenance checks and service and reporting same to supervisor; - maintaining control and care of equipment in car such as tools, camera, handcuffs, first-aid equipment, etc.; - training new officers, under direction of supervisor: - communicating by telephone with Solicitors iti regard to status of serving of documents, alternate address, problems in effecting service and in regard to reports or new instructions; - receiving from supervisor new or special assignments; - communicating with persons to be served and receiving reports or arranging for service. 2. Performs clerical duties relating to Process Serving by: 10% - supplying information and completing and forwarding particulars to typists for affidavit preparation; - preparing more composite report for affidavit for substitutional service; -.checking and signing affidavit and taking Oath before Conmissioner of..~Oaths or Notary Public. 3. Performs other related duties in the work of the Sheriff's Office as required by: 10% - acting as a FiFa Officer in receiving and in execution of Writs and Court Orders: - escorting prisoners to or from penal Institutions; - conducting Sheriff's sales when required; - giving evidence in court as required; - as assigned. 4. SKILLS AND KNOWLEDGE REQUIRED TO PERFORM THE WORK Sound knowledge of procedures in service of legal documents, familiarity with legal term and documents, ability to deal tactfully but firmly with legal profession and the general public. Good physical condition and ability to withstand provocation. Clean driving license. 5; SIGNATURES 6. CLASS ALLOCATION Sheriff's Officer 1 30600 ~- ,. Position Title SHERIFF'S OFFICER (FI-FA) Sheriff's Officer 2 Immediate Supervisor's Title Sucervisor. Sheriff's Officers Ministrv: Attorney General Branch: county & Dist. Cts. Division: Administration of Justice Section: Location: Sheriff's Office Judicial District of York TORONTO I” -6- Purpose of Position: 2. To effect execution of all Court orders and Writs of Fi-Fa. 3. SUMMARY OF DUTIES AND RESPONSIBILITIES, ETC. (1) As Sheriff's Officer (Fi-Fa) effects execution dn Writs and Orders emanating from different Judicial Courts by performing such tasks as: 70% - receiving Writs, Warrants and Orders of the Court and determining priorities; - interviewing execution debtors named in Writ of Fieri Facias to determine their ability to satisfy execution and compiling amount required to include judgement, costs and interest, receiving monies, cheques or other securities to satisfy Judgement; - determining from interviews and reporting to the office the nature of goods and chattels the defendant is possessed of; - seizing goods and chattels , inventorying and supervising their .resvval by cartage company: ;'- evicting tenants on Writs of Possession and ensuring that persons and animals evicted are offered a form of emergency housing by contacting the-office to make such arrangements; - executing Writs of Delivery and Replevin where directed to restore +ods to a plaintiff and "keeping the peace" in the process of removal of such goods; - attending on corporations named in Distress Warrants and levying or reporting on the corporations' assets; - executing attaching notices on Banks, corporations or persons named and accepting monies or subject matter of demand; - executfng orders by attaching and arresting persons named'and transporting persons to Court house for court appearance; - executing an arrest of Ship under 'FBderSIl.Warrant; - executing estreated bail warrants; - enforcing orders relating to Writs of Habeas Corpus and custody orders; - maintaining radio communication with supervisor and receiving instructi'on and exchanging information and recommending procedures according to exigencies and circumstandes; - operating rotor vehicle in the course df scheduled or assigned duties; - maintaining record of all calls including location, time, mileage reading and results of attendance; - maintaining the proper care of a vehicle by attending to proper and scheduled maintenance checks and service and reporting same to supervisor; - maintaining control and care of equipment in car such as tools, camera, hand cuffs, first-aid equipment; - training new Fi Pa officers under direction of supervisor. , Officer 1 position is centred on the serving of legal documents whereas the Sheriff's Officer 2 position is primarily concerned with execution of court orders. The viva vote evidence confirmed this salient difference. - 7 - Z.~Performs clerical duties relating to execution of warrants by: 10% - supplying information for preparation of reports to Solicitor 0.r courts; - cowunicating by telephone with solicitors inregard to status of execution, alternate addresses or receiving additional information; - communicating by telephone with debtors and receiving reports on assets and arranging for payment of judgments: - receiving from supervisor new or special assignments; - reporting to supervisor on complexity of impending Execution and discussing best procedure to follow. 3. Performs other related duties in the work of the Sheriff's Office as required by: 20% - acting as Process Server receiving documents to be served, .effecting personal service on persons named in documents, obtaining . signature and securing photograph in matrimonial causes, communicating by telephone with Solicitors - regarding status of service; supplying information and completing and forwarding to typists for affidavit preparation, preparing composite report for affidavits for'substitutional service; checking and signing affidavit and entering Oath before Commissioner of Oaths or Notary Public; - escorting prisoners to o* from penal institutions; - conducting Sheriff's sales when required; - giving evidence in court as required; - as assigned. 4. .sxrLLs AND KNOWLELX~E RECVIRRD ~0 PEwomf THE WORK Sound working knowledge of regulations, authority and procedures governi.ng Fi Fa office work, particularly relating to Replevin Act Executive Act and other Acts, and familiarity with legal terms and documents; ability to act courteously but firmly with defendants, in Writs and to withstand provocation and hostility. (Clean driving license required) Good physical condition. : 5. Signatures 6. Class Allocation Sheriff's Officer 2 30602 -. From the position specifications it can be seen the Sheriff's -a- Mr. Koltom, who was called on the grievor's behalf and who has been employed as a Sheriff's Officer 2 for seven years described his role as one of levying on property of judgment debtors; making arranpements~with such people where necessary; supplying lawyers with an inventory of a judoment debtor's assets and the seizing of such goods where authorized; auctioning off poods that have been seized; playing a role in the enforcement of injunctions and executing warrants of arrest; and finally the carrying out of eviction not- ices or orders. He advised that two officers are allocated to one cruiser and the rationale of this manning is to enhance first, the credibility of an officer where money has been seized and, secondly, the security of officers because assaults are always a possibility.. Mr. Koltom told the Board he learned the reauirements of the job through on-the-job training. He described the principal difference between the Sheriff's Officer 1 and 2 positions as beino the amount of public contact involved in the performance of Sheriff's Officer 2 duties. He indicated that an officer's personality is important and admitted that "personality wise" someone could be unsuited for the position. However he told the Board that he had been out with all of the men affected by this case and, in his opinion, no one was more suited to be a Sheriff's Officer 2 than another. Mr. Joe Brenner, Senior Deputy Sheriff, also described the differences between the two positions and emphasized that a . . Sheriff's Officer 2 had to have "the right approach and diplomacy". In his opinion the person should not be too forceful in this type of a position. Morton testified that he had worked in the Fi Fa DeDartment off and on over the previous five years, replacing others who were sick -9- or on vacation. He said that he had worked with almost every Sheriff's Officer 2 in this way. He said he had never received an adverse performance evaluation. The Board was told that before coming to the Ministry he had been employed as a collection manager for a finance company and, in that capacity, had to effect repossessions and deal with the public in much the same way as a Sheriff's Officer 2. He advised that the employer was aware of his previous experience in this capacity and was asked about it when he was interviewed during the selection process. Mr. Morton is thirty-eight years of age. - ..,. Mr. Taynen is sixty-four years old and before coming to the Ministry in 1969 was sequentially employed in a managerial capacity by three companies. He worked for one of these companies for thirty years and had experience collecting delinquent accounts. Prior to 1974, according to Mr. Taynen.r he periodically filled in for Sheriff's Officer 2 people who were on vacation or sick. However after 1974 he was given less and less opportunity in this regard. He said he had never been formally reprimanded and that while he had experienced a few vehicle collisions, none of these accidents were his fault. .He testified to several incidents which, in his opinion, demonstrated Mr. Bremner's dislike for him and, because Bremner was on the selection board, believed this dislike was why he did not get the job. Jdoreover he explained Bremner's attitude toward him as a product of his involvement in union activities. He testified that in 1974 he became a union steward and in this capacity had to discuss and question actions taken by management. He told the Board that on one occasion he was reprimanded by Bremner for not following the "chain of command" in dealing with management and that - 10 - Bremner went on to say he "was a good employee until he became a steward." He thought this dislike also showed through in the way Mr. Bremner questioned him during the selection interview. A selection.panel or board interviewed all the job applicants and it was composed of three management representatives - Mr. Bremner, Senior Deputy Sheriff; Mrs. Joan Burley, supervisor of all Sheriff's officers; and porothea Cameron who is a personel co-ordinator and was chairperson of the selection panel. All of panel members testified before the Board and they did so out of each other's presence ' -. ~.. The procedure followed by the panel was to interview each candidate for approximately 30 minutes. Each applicant's career was reviewed and a number of questions, designed to test the applicant's suitability for the position, were asked. On the completion of all the interviews each member of the panel ranked the applicants and then these rankings were compared. The Board was advised that the panel was unanimous in the ordering of the applicants, ranking Mr. Lowery first; Mr. Moore second; Mr. Morton third; Mr. Taynen third; and Mr. Sunstrund fifth. Mr. Bremner said all five men were acceptable as process servers but the panel believed that the two successful applicants were substantially better suited to perform in a Sheriff's Officer 2 capacity. Mr. Moore had always been effective and the Ministry had never received any complaints about his work. Similarly, it had never received any complaints about Mr. Lowrey's work. But importantly, in Mr. Bremner's opinion, both of these men had been "in this business" before coming to the Ministry. Mr. Moore had been a licensed bailiff with Harker & Company where the duties were, on the whole, identical to the duties of the position in ouestion and Mr. Lowery - 11 - had been a deputy bailiff with the 9th Small Claims Court, City of Toronto which is Canada's larpest small claims court. He too, in that capacity, had performed many of duties reauired of someone employed as a Sheriff's Officer 2. Mr. Bremner testified that these two men "came across" very well in the interview, particularly in reoard to ouestions to them by Mrs. Cameron. He told the Board that on the job and durino the interview Mr. Taynen "came across too strong". He told the Board that the Ministry had received a number of complaints by people to whom Mr. Taynen had served documents. These complaints indicated he was abrupt and pruff. He said-supe'rvisors had also complained to him about Mr. Taynen's "attitude" and the way in which he did his job. According to Mr. Bremner, Mr. Taynen did take criticism very well. However Mr. Bremner deni.ed disliking Mr. Taynen although he believed Mr. Taynen suspected him of this. He said he spoke to Taynen about the complaints he thought serious but no formal warning was ever issued. Mr. Morton, according to Mr. Bremner, was not selected because he lacked initiative; because he had been suspended some three years earlier for falsifyin a document; and because his past experience as a private bill collector could not be eauated to Moore's and Lowrey's actual experience with the execution of court orders or analopous documents. However Bremner could not remember any of the specific auestions put to the applicants during their interview and could not recall specifi- cally why the grievors did not "come across" during the interview. No formal records of the complaints received about Taynen were produced and this employer does not administer any formal evaluation of its employees on a regular and periodic basis. Occasions on which - 12 - Mr. Bremner had spoken to Mr. Taynen were not documented. Mrs. Burley has supervised Sheriff's Officers.for the last four years and so knew all of the applicants ouite well. She advised that Mr. Moore showed initiative in his work and was very conscientious. He was very sensible and mature and of all the applicants had worked the most continuously as a Sheriff's Officer 2. Apparently he had worked the entire summers of 1974, 1975 and 1976 inthis capacity. Mr. Lowery, according to Mrs. Burley, was a real "go getter" . working at top speed 'all the time. He seemed to enjoy his work and was eager to assume responsibility and to learn. He has a sound knowledge of the enforcement process and had impressed other Sheriff's Officer 2 employees he had worked with. In her opinion~r Morton had never shown he was capable of anything more and lacked initiative. Mr. Taynen, according to Mrs. Burley, comes on "too strong" and is not "too tactful at times." She said she has even had to speak to him about his conversation with people on the telephone. She said she had received numerous complaints about his dealings with the public and had spoke to him about these complaints although no formal discipline was invoked. She advised that he was the only offi>er that generated as larpe and continuous a volume of such complaints. In formulatinp her opinion of the applicants' capabilities to perform the work of a Sheriff Officer 2 she said she relied on her direct knowledge 'of them and what had been reported to her by other Sheriff's Officer 2 , - 13 - employees who had worked with them. In this latter regard she said that Moore had performed extremely well. Miss Cameron had very little or no previous contact with the applicants prior to the interview but in the classification section of the Personel Department she is the expert on the Sheriff's Officer classifi- cations. Her expertise stems from talking to and interviewing employees who are currently employed in the Sheriff's Officer.2 classification; from ten years of background in personnel management; and graduate training. She could not recall all of the questions she put to the applicants .. : or their actual answers but she was not hesitant to say "the interviews clearly established who was better". She thought Lowrey and Moore responded best to all questions; Morton believed the duties of a bill collector were identical to those of a Sheriff's Officer 2 which, in Mrs. Cameron's opinion, was patently incorrect. And Mr. Taynen appeared to have experienced a number of personality clashes during his previous employment. The Union argued that the differences between the candidates were marginal and that the employer had failed to adduce any concrete evidence suggesting otherwise. It was suggested' that the decisions were made on the basis of overall impressions that, when looked at in detail, simply did not stand up. The grievors were mature men who had succeeded .1 in other occupations that had involved public contact and that neither of them had received, prior to the incident in question, an adverse performance evaluation. The union suggested that the complaints about Mr. Taynen's work could not have been serious because no formal disciplinary steps were undertaken. The employer submitted that the Board's function was to determine whether the decision-making under review had been carried out in good faith, without discrimination, and whether the result or conclusion was - 14 - reasonable. It emphasized that the major consideration in filling the two vacancies pertained to the "suitability" of the applicants and that having regard to all of the circumstances, the conclusions reached were reasonable and had been made in good faith and without discrimination. The key provision of the collective agreement provides: ARTICLE 4 - POSTING OF VACANCIES 4.1 When a Vacancy occurs or a new position is created in the bargaining unit, the Employer shall advertise such vacancy for at least five (5) working days prior to the closing date of the competition for the position or vacancy. All applications will be acknowledged. Wherever practicable, advertisements for vacancies . . ..will be posted on bulletin boards. 4.2 In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where, in the opinion of the Employer, qualifications and ability are relatively equal, length of continuous service shall be a consideration. In an earlier case before this Board, Professor Beatty. outlined the approach to be followed in applying a provision so worded. He wrote: At the outset, we would note that to succeed in her claim, Mrs. mherty bears the onus of providing, on the balance of probabilities, that in making the selection of Mrs. Haydon for the Data Entry Operator 3 position theYemployer did not comply with the provisions of Article 4. yore specifically and against the terms of this particular provision, the griever bears the onus of proving not only that she has the requisite qualifications and ability for this job, but as well that she was relatively equal in those respects to Mrs. Haydon E Canadian Trailmobile Ltd. (1975) 10 L.&C. (2d), 92 (Adams); Re Kelsey Hayes Canada Ltd.(1972) 1 L.A.C. (Zd), 54 (Weiler) and see generally Canadian L&our Arbitration Topics 6:3200, 6:3220. That latter conclusion flows from the fact that Article 4 reflects a type of seniority clause in which a competition is set up between the applicants for a particular job. Against this kind of seniority provision, which is one of three generally recognized types of such clauses, arbitrators and the Courts have long recognized that it is not sufficient for a griever who, like - 15 - Mrs. Dcherty, has the greatest eniority, to prove that she can competently perform all of the duties of the position. Rather when a seniority provision is drafted as these parties have written Article 4, seniority only becomes a relevant consideration if and when the employer is of the opinion that as between the competing applicants their gualifications and ability are relatively equal. Re Kelsey Hayes Canada Ltd. (supra); Re General Refractories Co. of Canada Ltd. (19751 10 L.A.C. (2d), 327 (Shime): Re J. A. Wotherspoon & Son Ltd. & U.A.W., Local 1256 cl9721 2 O.R. 154, 25 D.L.R. (3d) 70 (Div'l Ct.). Moreover, there are certain other significant features of Article 4 which bear directly on the resolution of a complaint by an employee who has been unsuccessful in bidding for a posted vacancy. In the first place we would note that Article 4 speaks of the applicants' "qualifications and ability". Given the use of these two different terms, joined by the conjunctive word "and", we must assume that the parties intended that the employer was primarily to have regard to two quite distinct capacities in making its selection. s "'Kelsey Hayes Canada Ltd. (supra). In short it must not be assumed that the parties intended these words to be used synonymously or interchangeably. See Canadian Labour Arbi- tration Topic 6:3000. Secondly both on its plain language and against certain judicial pronouncements it is not with- out significance that the parties to this agreement:have utilized the phrase "in the opinion of management". That is to say and while we do not believe that such a proviso limits this Board's scope of inquiry to simply determining whether the employer'smctives in making its selection were bona fide, honest and unbiased, nevertheless, and regardless of what our scope of review would be in the absence of such language (see Re Great Atlantic and Pacific Co. of Canada Ltd., unreported Gnt. Div'l Ct Nov. 4/76), such a proviso clearly precludes this Board from viewing the employer's decision on its merits. g St. Catharines General Kospital (1975) 10 L.A.C. (2nd) 25~ (Adams); Re Lady Galt'Towels Ltd. (1969) 20 L.A.C. 382Khristie); Re Carling Breweries Ltd. (1968) 19 L.A.C. 110 (Christie). In short and against such a qualifying proviso, it is manifest that this Board cannot and will not exercise the kind of review that it regularly does in matters of discipline.' Rather and in order to give some meaning to that language , when this Board has occaSiOn to review a managerial decision effected under Article 4, we Will be concerned with something other than the "correctness" of the employers selection. Specifically an2 against such qualifying language, this Board is of the opinion, that its primary function is, and until we are persuaded otherwise, will continue to be, to ensure that: . ..the judgement of the company must be honest, and unbiased, and not actuated by any malice or ill will directed at the particular employee, and second, the managerial decision must be reasonable, one which a reasonable employer could have reached in the light of the facts available. The underlying purpose of this interpretation is to prevent the arbitration board taking over the function of management, a position which it is said they are manifestly incapable of filling. - 16 - Re Union Carbide Canada Ltd. (1967) 18 L.A.C. 109, 118 (weilerl The rationale for this more limited scope of review and the reasons why boards of arbitration have distinguished these cases from those involving questions of discipline are dis- cussed in some detail in Re Phillips Cables Ltd. (1974) 6 L.A.C. 12d) 35 (Adams). There are, two other features of Article .4,which bear upon the resolution of this grievance and which, therefore, merit our coinmen t . In the first place we would draw attention to the fact that by its terms Article 4 instructs the employer to give "primary" consideration in effecting a decision under its terms, to the qualifications and ability of the applicants to "perform the required duties". That is to say not only must those two factors assume a predominant position in the employer's selec- tion under Article 4, but as well those factors must relate to the actual duties of the position. rn short it is the applicant's qualifications and ability to perform the required duties of a Data Entry Operator 3, and not their ability and qualifications in the abstract that is the primary and material consideration that .should underlie a determination made under Article 4. Finally we would note that even in the instance when the employer is of the opiniori or this Board concludes that two or m.xe Of the competing applicants are relatively equal with respect to those two criteria which are to be given primary consideration, Article 4 does not, as mast collective agreements which employ this type of "competitive" seniority clause do, stipulate that the seniority of the applicants as to "govern", Re Westeel Prod- ucts Ltd. (1960) 11 L.A.C. 199 (Laskin); "prevail". Re Northern Electric Co. Ltd. (1965) 16 L.A.C..278 (Lane) or be the "deter- mining factor", Re St. Catharines General Hospital (1975) 10 L.A.C. (2d) 258 (Adams). Rather, on its plain language, Article 4 merely stipulates that even in this limited context, the respective seniority ratings of the various applicants is only on& additional consideration that the employer must weigh. Put otherwise, and against such language, in our view Article 4 plainly contemplates that there may well be circumstances even when the qualifications and abilities of the applicants for a job are relatively equal that their respettive seniority ratings may not be determinative for the employer!s selection. Thus unless the contested decisions were made in bad faith, or reflect discrimination or. unreasonable judpement this Board will not interfere with the selection. In the facts at hand Moore and Lowery were adjudged to pos- sess substantially greater qualifications and ability to perform in the Sheriff's Officer 2 position because of 1) their previous emoloy- ment experience which had been very much related to the reouirements I !’ 1 - 17 - of a Sheriff's Officer 2 position; 2) their past performance as Sheriff's Officers 1 employees; 3)more specifically, their complaint free employment histories; and 4) in the case of Mr. Moore, his on the job experience. The primary difficulty in making these determinations and a difficulty which makes the review of the determinations eaually trouble- some, is that so much turns on the assessment of how each man will react in stressful situations and how each man will relate to the public in this new and important role. The job in auestion does not involve merely the mastering of mechanical or technical skills but rather centers on the carry- ing-outs of important court orders under, at times, delicate and difficult conditions. Measuring up to acceptable standards.of interpersonal conduct is therefore essential but an employee's capacity to so perform is inherently difficult to assess. A decision in this respect must, to some very large degree, be speculative in nature. We want to register our concern that employers should rec- ognize the inherent difficulty of making such judgments and devise approp- i. riate personnel policies to narrow the discretionary or subjective compon- ent of the decision making that is beinp challenped in the instant case. This can be done by periodic performance evaluations and by members of selection panels taking a more systematic approach to interviewing and recording their assessment of each interview even if it is after the candi- _. dates have been excused. In this particular case the employment policies in both respects are lacking. Such procedures may be cumbersome but with- out them the chances of having decisions upheld by this Board are consider- ably reduced. Moreover such procedures, when properly administered by thoughtful personnel assure employees that they are being treated fairly and will, in time, reduce the number of grievances and increase morale. - 18 - But having made this observation and the related criti- cism we..are satisfied that the contested decisions, in the facts at hand, were made in good faith, without discrimination and were reasonable. Poth successful applicants had employment backorounds that demonstrated their capacity to work effectively in the position of a Sheriff Officer. 2. Both men's previous employment were much more analogous to that position than were the grievers'. Secondly, we are satisfied that the two successful applicants had shown more initiative and more judgment in the position of Sheriff's Officer 1 and these characteristics are most important in relation to the Sheriff's Officer.2 position. This assessment was made by both Mr. Bremner and Mrs. Burley and it is supported by what evidence there is - namely Mr. Morton's earlier suspension and the fact that, warranted or not, Mr. Taynen has been attracting more criticism from both the public and his supervisors. Mr. Taynen believes he was discriminated apainst,because of his union activity but this was not established on the balance of probabilities. While he was not formally disciplined in relation to the aforementioned complaints he was spoken to by Mrs. Burley and Mr. Bremner and we see no reason for refusing to allow this experience to be relied upon in assessing his suitability for another job, particularly one with the delicate duties associated with Sheriff's Officer 2 position. We also note that Mr. Bremner denied a dislike for the orievdr and the Union did not cross-examine him in relation to the statements Mr. Taynen alleged him to have made. But more importantly, Mrs. Burley and Mrs. Cameron arrived at identical assessments of Mr. Taynen's suitability for the position of Sheriff's Officer 2 and there was no evidence suggesting why they would discriminate against him. - 19 - We would also note that Mr. Moore and Mr. Lowery performed substantially in the interview better than the orievors. While a thirty minute interview ought not to be oiven a weipht that overrides the objective and lonostandino employment experience of a job candidate it is an important feature of the job selection process from the viewpoint of fairness and can certainly be resorted to when other standards of evaluation are in doubt. As we noted earlier in this opinion we would have preferred a more systematic approach to the selec- tive board's activities and much better recall by its members it is difficu!t for this board to accord the interview any weight when those conducting the interview can only recall that it was decisive but then are unable~to elaborate why. In this case we have relied upon it from a procedural point of view i.e. it insured that each man had an opportunity to highlight his background experience and understanding of the job to which he aspired; but-have not given it much weight beyond this perspective. For all of these reasons, the grievances are dismissed. Dated at Toronto this 25th day of April 1978. G. W. Adams, _. Chairman I concur Victor P. Harris Member I concur Dan Anderson, Member