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HomeMy WebLinkAbout1979-0041.Kosnaskie.81-09-29Between: -- *. 41/79 IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Sylvester Kosnaskie Griever - And - Before: The Crown in Right of Ontario (Ministry of Transportation L communications) Employer E. B. Jolliffe. O.C. Vice Chairman E. R. O'Kelly - Member J. McManus Member For the Griever: I. Roland, COU”SE?l cameron, Brewin & Scott For the Employer: J. E. Clarke Ministry of Transportation & communications Hearing: May 12, 1981 - 2 - DECISION ..- When this matter came .on for hearing, an agreed "Statement of Fact" was filed by representatives of the Ontario Public Service Employees Union and the Ministry of Transportation and Communications. It is as follows: 1. 2. 3. 4. 5. Mr. Kosnaskie (here after referred to as the grievorl has grieved that the Ministry of Transportation and Communications (here after referred to as the employer) denied him the position of Group 3,. Operator. The competition in question was posted by the employer on October 23,~ 1978. The competition number was ER/lO-78-14. The competition was for a Patrol Operator “B” classified as a Highway Equipment Operator 3. The position is located at the empZoyer’s Combermere Patrol Yard. The duties of a Patrol Operator “B” at the Combermere Patrol Yard include a variety of work assignments related to the operation of equipment known as type “A” and “B”, performing as Night Patrolman and general labouring duties. The employer interviewed 3 candidates, Mr. GroskZag (the successful candidate), the griever and one other. 6. The empZoyer finalized its sezection with a, letter offering the position to the successful applicant, Mr. Grosklcg, dated, November 24, 1976. 7. * The grievor wae classified at the time of the competition posting a8 a Highway Equipment Operator 1, 6. The 8uCCe88fUZ appZiCUnt'8 reguZUrpo8ition was classified as a Highway Equipment Operator 1. At the time of the cqmpetition he was performing the duties of a Highway Equipment Operator 3 on an acting basis and was paid accordingly. 9. The competition represented a promotion for the grievor. 10. Mr. Kosnaskie's continuous service date is April I, 1971. Mr. GrOsklUg'S continuous service date is September 23, 1971. The grievance was "that I have been denied the . position of Group 3 Operator,!' and Mr. Kosnaskle asked that the competition "be opened again." This matter turns on the interpretation and application of Article 4.3 in the Collective Agreement between-the parties, which has been the same for some time. It iS in the following words: 4.3 In filling a vacancy, the EmpZoyer shall give primary consideration to quaZificatCons and. ability to perform the required duties. Where qualifications and abiZity are relatively equal, length of continuous service 8haZl be a consideration. 4 -’ -- There were three candidates in the competition held by the Ministry in November, 1978. The successful candidate, Mr. Grosklay,had been duly notified and was offered an opportunity to make representations and ask questions. He testified as a witness, principally with regard to his own qualifications. The three members of the Selection Board were unanimous in ranking Mr. Grosklag first, Mr. Yuke second and Mr. Kosnaskie third. The immediate supervisor of the grievor was not on the Selection Board, which consisted of Mr. G.R. Almond, District Main- tenance Engineer, Mr. P.S. Hinze, Maintenance Supervisor, and Mr. O.F. Wannamaker, Unit Supervisor. As appears from the last paragraph in the Statement of Fact, there ins less than six months difference .- in the seniority of the two competitors. However, the grievor believes his experience is much greater, because he often operated heavy equipment in the years between 1949 and 1971. He isnow 48 Years of aye and has nine children. Mr. Grosklag is 33, with one child. The case put forward on behalf of the yrievor is that his experience was greater and his qualifications as good as those of Mr. Grosklag and therefore his superior seniority should prevail. His counsel took strong objection to the employer's conduct in appointing Mr. Grosklay as an "acting",Operator,3 some months prior to the competition, and paying him.as such. Counsel argued it was an unfair advantage for. one of the three candidates to be placed on an "acting" basis long in advance of a competition which could have.been held in July just as well as in November. The notice given on October 23, 1978, described the job as that of "Patrol Operator B, Highway Equipment Operator 3." The hourly rate was specified as being from $6.20 to $6.47 per hour'and the location as the Combermere Patrol-Yard. The duties of the position were described as follows: "TO operate and maintain MTC Type A & B equipment and act as Night Patrolman during winter months." Qualifications were described thus: "Successful completion of 8 years of progressive education and possession of Class 'D' Licence. At least one season of winter patrol maintenance experience. Successful completion of Highway Equipment Operator 3 tests on safety, ability in traffic, driving aptitude, general maintenance and Ministry tests on operation and running maintenance. Several years of exper- ience in the operation of light and heavy highway equipment -6- or on related types of machines, Good physical condition and acceptable driving record," In the position specification and class allocation form, Exhibit 6, it is made clear that there is a duality of requirements. The operator must operate 'B' equipment, i.e., heavy equipment in both summer.and winter for a total of 70% of the.year's working time. He must also operate type 'A' equipment, ,i.e., light equipment, in summer and act as Night Patrolman for at least four months in winter for a total of 70% of the year's working time. (Apparently the two functions overlap,, because 70% multiplied by 2 is 140%.) The operation and maintenance of equipment is given a weight of 38%, miscellaneous. labouring tasks, such as digging ditches and cutting grass, are weighted at 15% of the job: the actual work .of a Night Patrolman, ' . . inspecting road condition, ploughlng and sanding in the winter, is given.a weight of 42%, and auxil- iary duties "as required" ,5%. The requirements of the position are of course determined by the nature of Ontario weather, so that the work done in summer is very different from work done throughout the icy or snowbound winter months. The only supervisory duties involved in the post are occasional needs for supervision or guidance of labourers and new employees. There is a limited amount of paperwork which must.be completed at the end of each shift, when entries . are'made in a diary: from time to time detailed reports must be submitted. When complaints are made or when a Patrol encounters an accident, it is necessary to ,deal tactfully and helpfully with the public. According to the testimony of Mr. Kosnaskie, his employment history and training may be described as follows. After completing grade 7 at the age of 15, he began with five months' work for a,construction company which had a contract on the highway between Barry's Bay and Killaloe. He was then employed by a different construction company, operating a bull- dozer, and later by another as a labourer and fdrk-lift operator. Mr. Kosnaskie joined the Ministry of Transportation and Communications for casual winter work in 1965, and again in 1967 and probably 1968. During intervals between such temporary employment he was a labourer and truck-driver for saw-mills, drove large trucks and operated power tools. He also worked for a time with Ontario Hydro, brush-clearing and aligning poles. When brush-cutting, he supervised other. labourers as they established a right of way through the bush. -8 - I . After becoming a full-time employee of MTC in April, 1971, the grievor was at first a labourer. A few months later he became an Operator 1 and in the winter drove a snow plough. in fact, since 1971 he has regularly operated .heavy equipment in the winter, including a front-end loader, and from time to time has 3-ton and 5-ton trucks for sanding and ploughing purposes. There seems no doubt that during the years 1971 to 1978 Mr. Kosnaskie carried out satisfactorily all the duties of an Operator 2, using a variety of equipment. He also acted in effect as an Operator 3 when the incumbent of that position was absent. He was candid, however, that he had never been called on by MTC to supervise labourers, that he had not made out reports but had made diary entries as required. He said he had worked from time to time since 1971 .with Mr. Grosklag and that they had been doing practically the same thing. He was not asked to take any maintenance or 'operational tests by the Ministry before the competition, although he has since taken such tests, from which, he states, he did not learn anything new. Mr. Kosnaskie said his supervisor at the time of the competition was a Mr. Giffen, who had been appointed in the spring of 1978 and had no knowledge of his winter work. -9- His interview with the Selection Board lasted 10 or 15 minutes and, according to him, he was not asked any questions about his experience prior to 1971, but he admitted in cross- examination it would be on record from the time he first applied for a job. In winter, Mr. Kosnaskie explained; a crew consists of seven men, including a Patrolman, four Operators and two Wing Men. Of these two,are designated as Night Patrolmen. As an Operator 1 Mr. Kosnaskie was one of "the other two Operators." On the night shift there are two Operators and a Wing Man, who might be a casual employee. In effect, they are under the supervision of the Night Patrolman as the senior Operator. Vehicles are equipped with radio communication and in the event of a storm or an accident drivers can report to the police or the District Office and might be given another crew for night work. In re-examination Mr. Kosnaskie pointed out that he.sometimes had to report on the needs for the next day or the next night's work. In his testimony Mr. Grosklag also gave an account of his training and experience. He had attended high school at Bancroft and reached grade 10. Thereafter he was a salesman for a feed company and then worked on a part time basis with two well-drilling firms. Between 1966 and 1971 he did manual - 10 c labour on culverts, ditches and road surfaces for the township of Raglan. He also spent some time with well-drxllers in each year and was a switchboard operator for the Northern Telephone Company until it was swallowed by Bell Canada. In 1967 he started doing part-time work with MTC which involved the use of light equipment such as chain-saws. For a time he was a weighman with the Ministry. In that capacity he weighed gravel so that appropriate payments to the contractor couid be cal- culated. He did forestry work for six to eight weeks in winter and then joined a sur~vey crew. There he was a day labourer, keeping time for others and recording the equipment used, both by employees and by those on contract. During that period he did not operate equipment, but of course there was paperwork. During surveys he~often acted as a, rodman,, also booking and making notes as one member in a crew:of four. He said he was never in charge of a crew, but he did have the responsibility of inspecting the guard rails constructed by others., He also recorded the materials supplied by the Min- istry for the use of contractors. He said frankly he had not operated heavy equipment, but ofcourse had used a chain-saw and held a chauffer's licence but no licence from the Ministry. All this was during his part-time service with the Ministry. In September, 1971, Mr. Grosklag was taken on the permanent staff, soon becoming a Wing Man on regular patrol work, dealing with blocked culverts, fallen trees and the like, as well as snow ploughing and sanding. In the next spring and summer he reverted to survey work, and later in 1972 was a Wing Man.again. The next year, assigned to a construction contractor, he obtained a driving licence from the Ministry, and that winter ploughed at night with 3-ton and 5-ton equip- ment. The following summer he was again on construction and survey work; he had no supervisory duties, but led a group of three men. In the summer of 1977 he drove as an Operator 1 (as he had during the winter) and also had some experience with a four-wheel-drive loader. Mr. Grosklag said he sometimes helped a Patrolman complete his reports, and recorded employee time, equipment time, the materials used, and the hired equipment used. These reports were due each two weeks. In the spring of 1978, just' prior to being made an acting Operator 3, he performed normal duties driving 3 and 5-ton trucks and also the loader as well as working with a chain-saw and doing general labour. He said many of the duties of an Operator 1 are the same as those of an Operator 3. On becoming an "acting" . Operator 3 in 1977 he was a Night Patrolman three weeks out of four. With him were one other Operator and one Wing Man. According to Mr. Grosklag, the Ministry has a course for Night Patrolmen: he took that course. It relates to the -12 - regular work of a Patrolman and provides information about temperatures and the appropriates treatment with salt and sand. As an acting Operator 3 he did not supervise but simply led the crew to which he was assigned. He never 'acted as a sub-foreman, the other Operator 3 with the crew being senior to him. As for the competition interview, he said he did not know any member of the Board but knew of them. He had been asked questions about his previous ex- perience by members of the Hoard. In cross-examination Mr. Grosklag conceded he had never operated a bulldozer or a roller. He had driven a large tandem truck for farm work but not for the Ministry. He said the largest part of his work prior to the competition had been with survey crews. He was not sure who:had designated him as an acting Operator 3 but "imagined" it was his Night Patrolman. Mr. Grosklag explained that his appointment as an acting Operator 3 in July of 1978 was for the second time. -He agreed that in the summer months an Operator 3~ does the same things as an Operator 1, using the so-called light equipment. In winter however the work was quite different and he did it in the same area as Mr. Kosnaskie. Replying to a question from thFs Board, Mr. Grosklag said that after a patrol records are posted each night (which takes 15 or 20 minutes) in every other week to be'entered in a computer. The only other witness was Mr. Percy Hinze, a 26-year veteran of the service; who has been District Main- tenance Supervisor (responsible to the District Engineer) for the past 10 years. He explained the nature of the work done on 700 miles of highways. Apart from specialized personnel and foremen, he has 80 employees in summer, 130 in the winter. There are 15 summer patrols and 16 winter patrols, each patrol being responsible for a distance of between 35 and. 75 miles. Of the equipment men, about 10 have the Operator 3 classification. Mr. Hinze said that the selection criteria for the competition were; 1) technical ability in operating and maintaining equipment, 2) the ability to keep records and 3) good communication skills. The Selection Board had established a series of questions, which he said were all put to the three candidates. Among other things each man was asked what equipment he had operated for the Ministry and also ~outside the Ministry. Mr. Hinze said he had rated applicants from one to 10 on the answer to each question and - 14 - the answers given were of more importance than their written applications. In cross-examina,tion the witness said he had known both the grievor and Mr. Grosklag since 1971, but had never worked in the field with either. He said of Mr. Gros- klag; "we knew he was an acting Operator 3 from July --- we knew of both his acting appointments." However, he denied this was a factor in the choice made. He conceded that Mr. Kosnaskie has more experience with heavy equipment, but he denied that the book work to be done by a Night Patrolman is easy: even Patrolmen sometimes need help to do it. The diary which had been referred to was the patrol diary, and the entries made were important in keeping track of maintenance needs. Mr. Hinze asserted the grievor's communication skills were inferior; it was "rather difficult" at the competition interview to get questions acrossto Mr. Kosnaskie and to get satisfactory answers. Re-examined, Mr. Hinze said the bookwork to be done by a Night Patrolman was essential. It,had to be learned on the job from supervisors, and he thought it would take more time each night than the 10 or 15 minutes estimated by Mr. Grosklag. - 15 - In argument, Mr. Roland said the only question to be decided was that of relative abilities. The grievor's technical ability and experience were much higher than Mr. Grosklag's. There had been no complaint.about the perfor- mance of 'either man when doing the work of a Night Patrolman, as they had both done on occasion: they were both adequate employees. Counsel referred to Mr. Hinze's admission that the book work was taught on the job: Mr. Kosnaskie did not have a chance to learn it, but Mr. Grosklag did. Counsel argued that the grievor's written application had been com- pleted more correctly'than the one made by Mr. Grosklag. Book work, said Mr. Roland, was a small part of the job and communication skills were not of the highest importance; the successful candidate had no special training for the job and had only a grade 10 education. 'He had enjoyed 'a period of familiarization denied to Mr. Kosnaskie. However, the grievor had done from.time to time all work involved in the duties of a Night Patrolman, except perhaps some of the book work. Mr. Roland submitted that education should not be the determining factor fin a case such as this. The important evidence was that which related to qualifications for a particular position, and he cited Saras 139/79. ,For the employer, Mr. Clarke said much time.had been taken explaining equipment used by the Ministry, but the - 16 - Selection Board had correctly chosen the proper criteria. It had to rate.the employees in the light of those criteria and its findings were valid. The Ministry needed experience and ability in operating heavy equipment and also communication skills.and book-keeping competence. On the two latter points, Mr'. Grosklag's wide experience and evident ability were clearly superior. He had been a salesman, inspector, telephone oper- ator, time-keeper and weighman; he had done other paper work as well as operating trucks and snow ploughs. He said Mr. Kosnaskie had trouble in expressing himself, and there was more to this than "shyness." In previous cases, said Mr. Clarke! this Board has often criticized the process used in selecting appointees, but seldom remitted the result for re- hearing. Mr. Clarke argued there was no evidence the choice made had been arbitrary, unreasonable or discriminatory. On the other hand there was ample evidence that there were grounds for finding Mr. Grosklag's qualifications to be superior to those of the.grievor. In reply, Mr. Roland said that written applications~ were the only record the Selection Board saw, and Mr. Grosklag's was flawed, which did not suggest ability in book-keeping. By the time of the competition Mr. Grosklag had been on the job on an acting basis for three ,or four months, which gave him a very unfair advantage. . -17 - In this case, unlike some others, this Board has had the advantage of hearing testimony from both the grievor and.the successful candidate and is thus in a position to assess their relative merits. Both men have certain strengths .and weaknesses. The grievor has had,much experience in the operation and ~maintenance of heavy equipment, with the Ministry and with other employers. There is nothing to suggest that his service has ever been other than satisfactory. He seems to be a very conscientious and hard-working employee, who takes his respon- sibilities seriously. On the other hand, his education ended at grade 7; he did not have the grade 10 which is stated in the Position Specification to be preferable for an employee in the classification of Highway Equipment Operator. 3. This factor may not be important now, but we find that Mr. Kosnaskie does have some difficulty in expressing himself, and would _ probably be handicapped in learning the book work which Mr. Hinze testified is essential at the end of each shift. Mr. Grosklag, a younger man, does have a grade 10 education; he has had almost as much service with the Ministry as the grievor, but most of his experience before and after 1971 was with light equipment rather than heavy equipment. Some of it was time-keeping or general labour, salesmanship i d -18 - and switchboard operation --- which have little to do with either heavy or light highway equipment. It is apparent, however, from his testimony 'that Mr. Grosklag does possess communication skills and probably made a good impression on the Selection Board due to his ability to understand questions and answer them satisfactorily: he is articulate. His experience as's tine-keeper, we'ighman and the like would help in learning how to complete the patrol diary and regular reports to his superiors. We have some sympathy with the argument that it was unfair to give Mr. Grosklag two "acting" appointments prior to the competition. However, when there was a vacancy to be filled, someone had tb fill it and the evidence is that no member'of the Selection Board was responsible for that choice; We do.not think it constituted a defect in the process sufficient to in- validate a competition regularly conducted. It would have been preferable to hold the competition at the earliest possible date, but there may have been uncertainty about a vacancy indirectly due to a pending retirement. In our view the selection criteria used were reasonable, having regard to the nature of the position, and the rating system was not unfair. It is significant that the result was unanimous, Mr. Grosklag being ranked first and the grievor third. ;;‘ .- 19- Although fully conscious of Mr. Kosnaskie's excellent qualities and experience, this Board is not per- suaded that pn balance his qualifications were relatively equal to those of 'Mr. Grosklaq. It must therefore be con- cluded that the'grievance fails and is dismissed.~ DATED at Toronto this Vice Chairman Member Member