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HomeMy WebLinkAbout1978-0131.Clark.81-07-06131/78 IN THE MATTER OF AN ARBITRATION Under The CROKN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: For the Grievor: R. Dobbie & L. ~Clark - And - The Crown in Right of Ontario (Ministry of Consumer & Commercial Relations) Employer Prof. R. J. Roberts Vice Chairman hlr . P. Warrian Member Mr. D. B. hliddleton hlember . . hlr. S. T. Goudge, Counsel Cameron, Brewin & Scott For the Employer: Ms. D. S. Nagel Senior Staff Relations Officer Civil Service Commission Hearing: June 4, 1981 -2- . AWARD ----- .i This case involves a dispute over a vacancy which occurred in a bargaining unit position in the Registry Office of the Province of Ontario in Welland, Ontario. There were two grievors whose grievances were to be heard on the date scheduled for the hearing; however, on&y one griever, ~rs. Clark, appeared. The other grievor, Mrs. Dobbie, had been notified of the hearing date by the usual method employed by the Grievance Settlement Board; however, there was no indica- tion from her as to why she could not appear, nor did she either personally or through an agent request a continuance. In the light of these facts, we dismiss the grievance of Mrs. Dobbie. At the hearing, the Union, the Ontario Public Service Employees Union, contended that' Mrs. Clark should have been accorded the position of Senior Microfilm Operator at the Welland Registry Office instead of the successful applicant, Mrs. Geick;" Specifically, it was contended on behalf of Mrs. Clark that (1) the selection procedure utilized by the Employer was in violation of the job posting requirements of the collective agreement, in that the employer did not give first consideration to bargaining unit employees but rather considered Mrs. Geick, who was from 1. Mrs. Geick did not attend the hearing. She apparently did not have any further interest in the position. The event leading to her successfully attaining the position occurred in 1978. Since that time Mrs. Geicke has moved on to other employment. -3- . outside the bargaining unit, in competition with'overyone else: and, (2) in any event, the grievor should have been the success- ful applicant because she was more senior and her qualifications and ability to do the job were at least relatively equal to those of Mrs. Geick., The Crown contended; on the other hand, that the selection procedure was proper and that the successful applicant was properly assessed against Mrs. Clark because her qualifications and ability to do the work were superior to'those of the grievor. Upon due consideration of the evidence and argument of the parties, we resolve both'issues against the grievor. The job posting procedure of the collective agreement does not require bargaining unit employees to be considered.before those from out- side the bargaining unit. Further, the grievor did not sustain her burden of proving that as between herself an&the successful applicant, she was relatively equal in qualifications and ability.. Accordingly, we dismiss the grievance. Our reasons for doing so will become more apparent from what follows: In March, 1978, the Registrar of the Registry Office in Welland;OntariO, Mr. Samuel Vander Schelde, caused to be . . posted a notice of vacancy for the job of Senior Microfilm Operator. This job was coming open as a result of the impending retirem.ent of itsholder, Sarah Tufts. Mrs. Tufts had occupied this position for a considerable period of time. As the Senior Microfilm Operator, she was responsible for the operation of a small department within the Registry Office in which the documents that the Registry Office -4- . was required to keep and record were microfilmed.'- The grievor, Mrs. Clark, was one of the microfilmers working under Mrs. Tufts. The only other microfilmer was Mrs. Dobbie, whose grievance we dismissed above. The job posting read, in pertinent part, as follows: COMPETITION ANNOUNCEMENT (open) POSITION TITLE - Senior Clerk & Microfilm Operator CLASSIFICATION - Operator 3 Microfilm SALARY RANGE - $178.74 - $205.72 (Under Review) BRANCH Land Registry Office #59 LOCATION ': - Welland SUMMARY OF 'JOB DUTIES ..~ SUPERVISES a staff of two, classified as Operator 2 Micro- film, providing training, guidance 'and technical assistance. Training and advising staff in Microfilming methods. The use of Microfilm Logbook and methods on cross reference re-filmed. Co-ordinating microfilming of current instruments over backlog instruments. PROVIDES a microfilm record of all.registered instruments by - Receiving current instruments arranged in numerical order, from Abstract indexing Section, Operating microfilm camera, setting focus to ensure proper exposure, general maintenance, etc. Viewing developed film on reader for quality control. PERFORMS filing and related clerical duties, and also provides supervision assistance and information to filing clerks~, assigns work, distribution of work load, organizing lunch hours, providing training, etc. Also super- vise the recordings and storage of office supplies and stationery, etc. QUALIFICATION ._ Grade 12 or an equivalent combination of edu- cation training and experience. Supervisory ability. Thorough knowledge of microfilm techniques. Tact and good judgement.[sicl Must possess leadership qualities and the ability to interact with subordinate staff. Any person interested, please submit application for employment to: File CR-49 Land Registry Office #59, P.O. Box 730, 20 Cross Street North, Welland, Ontario L3B 3Gl. APPLICATION POSTING DATE: MARCH 13, 1978 APPLICATION CLOSING DATE: MARCH 31, 1978 This competition isopen to any person whether or not employed with the Ontario Government. The above posting was in accordance with the job description. In fact, a number of parts thereof appear to have been abstracted from.that description. It seemed to be agreed. at the hearing that the posted job had three components: first, an ability to -perform microfilming; secondi ability to file and do related clerical duties: and thirdly,'*supervisory ability. In his testimony, the Registrar, Mr. Vander Schelde, indicated that he expected the job to involve from thirty-five to forty per cent supervision. This estimate appears to be reflected in the job descriptionwhich indicates that fifteen per cent of the duties and responsibilities of the senior clerk would be taken up in supervising subordinate staff regarding microfilming and -- -6- . indexing, and another twenty-five per cent in supervising work assignments, making spot checks, preparation of monthly reports, etc. The job description also indicates that in addition to supervisory skills, the senior filing clerk is required to have tact and good judgment. It also was indicated by Mr. Vander Schelde during his testimony that he~was most interested in the 'supervisory, good judgment, and communication abilities of applicants for the job because he anticipated embarking upon several programs subse- quent to filling the vacancy which would require those kinds ~of qualities. These concerns were indicated by him to other.members of the interview panel. Further, Mr. Vander Schelde drew up a' series of questions that would be asked each applicant. These questions were designed by Mr. Vander Schelde with the hope that they would reveal in the applicant the supervisory,.~etc., talents for which he was searching. There were eight applicants for the job, including Mrs. Geick and the grievor. Mrs. Geick was ranked second. The grievor was ranked last. We accept the testimony of Mr. Vander Schelde -. that the grievor was ranked last because she refused to cooperate in answering the specially designed "supervisory" questions to which a great deal of importance had been attached. Instea'd, the grievor appeared to view the interview process as an opportunity to advance a number of personal complaints regarding job conditions and her relationships with co-workers. When the applicant who was -7- . ranked first declined to accept the job, Mrs. Geick was con- tacted. She accepted the job. Both the grievor and Mrs. Dobbie filed grievances contending the job should have been awarded them. Mrs. Geick was not a member of the bargaining unit. She was a title searcher who frequented the Registry Office. Because of.her employment as 'a title searcher, Mrs.. Geicke was familiar with the indexing. system and the types of documents recorded, microfilmed, and filed in the office; She was not, however, familiar with microfilming techniques, having had only a brief exposure to microfiche. It appears from the evidence that Mrs. Geicke was accorded her high ranking by the panel be- cause heranswers to the questions relating to supervisory, etc,., skills'indicated to the panel that she was possessed of a high degree of aptitude in these areas. While she.did not meet the technical aspects of the requirements, it appeared to be the case that none of the eight applicants f.or the job met all of the ideals set forth in the posting. The.panel~ was required to balance against each other the deficiencies of the candidates in various areas. Turning now to t-he submissions of the Union, we rej-ect _e outright the grgument that it was in violation of the collective agreement for the Employer to open the competition for the job **to any person whether or not employed with the Ontario Government," as indicated in the posting. The matter has been dealt with at great length in arbitral jurisprudencti. It appears that at least from the 1960's, the uniform view of arbitrators has been that -8- . job posting requirements in a collective agreement, without more, do not require the Employer first to search within the. bargaining unit and only thereafter to seek qualified appli- cants from outside. So for example, in. Re' Scarborbugh Centenary Hospital Assoc'iBtion Andy Canadian' Un'ion'of~ Public' Employees, Lo- cal 1320 (1978), 20 LAC 2d 412 (Schiff), it was stated regarding' a comparable situation that the reasoning of the Union--which was along the lines of that in Federals Wire 'and Cables Company and united Steelworkersof America -(1960), 3 U.S.'W.A. Union-Manage- ment Arbitration Case 3-276 (Laskin)--."Ihas] been rejected in virtually every other award, and we must conclude that 'it is too late in the day' to invoke lit] here.... Alternate thinking, favored over the years by almost all arbitrators, directs us solely to the language in the 'agreement before us..;." The language in the agreement before us does~ not ex- pressly require the kind of consideration for wh,ich the Union contends. Section 4.1 of the agreement merely sets forth ~that a job vacancy "shall be advertised for at least five (5) working days prior to the establishe~d closing date when advertised within a minis- . . tryI or it shall be advertised for at least ten ('10 working days prior to the established closing date when advertised servicewide." There is no express requirement that applications from within the unit shall be given first consideration, nor is there any require- ment that the govbrnment refrain from advertising the vacancy to the public. -9- . This provision is not like the provision of the col- lective agreement considered in Re Toronto Star Limited and Tor- onto Newspaper Guild, Local 87 (1976), 12 LAC 2d 148 (Arthursj, which expressly stated that "Consideration will be given first to enployees~who have applied pursuant to the procedure outlined herein, before the Employer seeks a suitable candidate from out- side the company." Further, no other provisions can be combined with Section 4.1 of the collective agreement to give that provi- sion the effect sought by the Union. Section 4.3 is'simply a com- petition clause; Section 4.4 merely provides that civil servants shall be given tine off.with 'no loss of pay or credit to attend the interview. Here there is no similarity to Re Scarborough Gen- eral Hospital and C.U.P.E., Local 1487 (1979), 23 LAC 2d 190 (Swan), where the Board found that two separate sections of,the collective agreement in combination gave the necessary effect. See also Re - Scarborough General Hospital 'and Canadian' Un~ion 'of Public EmPloyeeS. Local 1487 U980),~26 LAC 2d 28 (Brent). k Considering the second issue raised by the Union, we re- ject the contention of the grievor that the competition clause of the collective agreement, Section 4.3, w&s improperly applied by the Employer in this case because her "qualifications and abili,ty are relatively equal" to those of the successful applicant. We find that the grievor has not satisfied her onus of proof in this regard. We reach this conclusion on an objective consideration of whether the Employer's decision was "correct on the evidence . - 10 - . . before it at the time the decision was made." This is in accord- ance with the requirements set down by the Divisional Court in Canadian Food and Allied Workers Union. Local 175 v. Great At- lantic and Pacific Company of Canada Limited (19761, 76 CLLC No. 14,056. The facts as found by the Board indicate that while the grievor met the technical requirements of the job, she fell far short of demonstrating any of the supervisory talents, includ- ing good judgment and tact, which formed a large part of the qual- ities for which the panel was searching. These qualities were a significant part of the job and.according to evidence which we have accepted, they were anticipated to be strongly empha- sized in future assignments to be given the Senior Microfilm Operator. Instead of cooperating with 'the panel in answering.the questions which were designed to elicit such qualities in the candidates, the grievor demonstrated an impressive lack of tact and good judgment by treating the interview as a platform from which to make several complaints about working conditions and co-workers. Given these circumstances, the Board cannot conclude . that the Employer was incorrect in ranking the grievor last among eight applicants. Nor can the Board conclude that the Employer was incor- rect in attempting to seek out these supervisory talents by posing to the candidates a series of preconceived situation-type ques- tions. We recognize that it is difficult to assess supervisory - 11 - . abilities, particularly in bargaining unit candidates who might not be expected to have any background to point up their aptitude in this area. We are of the opinion that the questions that were posed, many of which were revealed in the evidence at the hearing, appear to have been well suited to eliciting the .qualities that were sought. The Employer was not incorrect in offering the position to Mrs. Geick when the candidate who was ranked first decided not to take the position. The grievance is dismissed. Dated at San Diego, California, thislxday o , 1981. [I m/dissent:] Nr. P. Warrian &p!$/&?&?z~ [I concur/m:] Mr. D. B. Middleton Member . - DISSENT - Re: OGSB - File 131/78 - R. Dobbie and L. Clark Grievances I have reviewed the majority decision in the above matter and find 1 must dissent. First, I am persuaded by the Union's argument that the language of the relevant section of the collective agreement contains the inference that the Employer must first examine the inside applicants for the posting before looking to the street. Secondly, Mrs. Clark, in my judgement, had the qualification and experience to entitle her to a trial in the job. Thirdly, the candidate chosen had neither micro- filing, microfiche, nor a supervisory experience. Finally, Mr. Vander Schelde himself admitted that he voted against the candidate finally selected. Dated at Toronto this 22nd day of July, 1981