HomeMy WebLinkAbout1980-0140.Caston and Therrien.84-02-06F ; “, ONT*RK)
c*ovdN Ehw‘O”C~S
;
, / GRIEVANCE
I SETTLEMENT BOARD
IN THE UATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before::
For the Grievers:
For the Employer:
He&ings:
OPSEU (Gerald J. Caston &
Clifford Therrien)
Grievers
- and -
The Crown in Right of Ontario
(Ministry of Health)
Employer
M.R.~ Gorsky. ~' Vice Chairmdn~- -.
M. Perrin Member'.
A.G. Stapleton Member
G. Richards
Grievance Officer
Grievance Section
Ontario Public Service Employees Union
J. Call-as
RegionaL Personnel Administrator
Ministry of Health
Penetanguishene
May>
25, 1981 June 15, 1981 Ltzs:: 1':::
June 16, 1981 April 21, 1983
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DECISION
Both of the Grievors contend that the employer violated
the provisions of Article 4.3 of the Collective,Agreement in failing
to award them the position of Senior Attendant in the Attendant-3
Oak Ridge classification. It was the position of the Union, on
behalf ,of the,Grievors, that they had the right to be appointed
to two of the tenvacancies for the Attendant 3 position that
.became available in January of 1980, because they had seniority
over the employees chosen and that their qualifications and ability
were relatively equal to those of the successful applicant.
The parties agreed that the,Grievor, Mr. Caston; would
be compared with one of the successful applicants, Mr. Brophy, and
that the Grievor, Mr. Therrien, would be compared with another
successful candidate, Mr. Pilon.
The Law ~,'
Because of the position taken by the Union as to the
standard of review which this Board ought to undertake of the
decision of the employer, it will be necessary for me to set out,
in some detail, my reasons for disagreeing with that position.
The union submitted:
'"We contend that the Board not only has the
authority, but also the duty to closely scrutinize
the decision of the selection committee because it
is bound bv the decision of the Ontario DiviSional
Court in re Great Atlantic and Pacific Company~of
Canada Limited and Canadian Food Andy Allied Workers
Local 175, [76 C.L.L.C. para. 14,056 (Ont.Div.Ct.1. hi
"The interpretation of the A&P case as imparting a
standard of correctness'rather than of reasonableness in reviewing the employer's decision has been the
practice of this Board in a significant number of
decisions."
My disagreement with this Union submission is only
partial: I agree that the A&P case-did not impose a standard -
of mere reasonableness. I disagree, however, with the submission
that the case imposed a standard of correctness, as that term
was defined by m. Richards, on behalf of the union.
The pre-A&P philosophy referred to by the union was -
analyzed in the'award in Re British Columbia Housing Management
.;.Y.-. Com'n: and Service Employees' Int'l Union, Local 224.(1977),
15 L.A.C. (2d) 121 (J. Weiler). I believe that the arbitrator
( '.. in the British Columbia Housing case accurately set out~the pre-
A&P philosophies which were found to apply in ~promotion, cases.,.
He stated (at p.124):
la thee& rcp+rted awwds arbitrators took the position that
the proper review of management’s initial judgment of an
emPlow%s’ ability should be limited to a subjective inquiry i
whether this assessment was made honestly. in good faith and did i
not.discriminate between employees. (See e.g., RC ~',titid ,,tfint 1
U’C+W% L?ACO~ 19031 and Camdim ‘-Industries Ltd.; ,&&l
Workers (194S), 1 L.A.C. 234 (Roach))., While this approach. elimi- .;
natedgnxsabusesoftotal management discretion,,nevertheless,it-~~~‘, :
did not deal with the situation where management’s, dj&etion.i:-
might be ha fide yet vex wrong. Theti seems.to be no pter.
reason to give’management total freedom to act in good faith in
the seniorit? field than in the area of discipline where this pstore
had been resected.
It will be noted, infra, that this was the positiontaken by the .'
arbitrator in the A&P case and rejected by the Divisional Court. -
Later at p.124, Professor Weiler stated in the B.C.
Housing case:
Chafing under this limited review of management’s assessment
of employee’s abilitv, ~thc extreme view from the trade union side .
urged that as with d’iscipline, arbitrators should have total freedom :
to substitute their judgment for management’s whenever they dis-
agreed. In other words, the arbitration process u'as to olTer full al)-
pellate review .of management’s initial judgmentr
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This is the position that Professor Weiler,at pp.128~9
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of the B.C. case:, concluded was held by the Divisional Court in the
A&P case. Professor Weiler stated: -
In the f&e of this arbitral opinion, ihe Ontario Divisional Court in
the A & Pease has ruled that an arbitrator must not limit himself
lo an enquiry as to the honesty, absence of n~alafides and reason-
ableness of management’s decision, but must compare the respec-
. tive skills and qualifications of applicant for the job in question. In
reaching this conclusion, the.?ivisional Cxut noted that if the par-
ties wanted ..to limit full scale review on .the me& of
management’s decision, “then the parties in the collective a-
ment should jnsure that management’s right..in. this re@ is
unfettered’? .
A number of other arbitrators, including J. D. O'Shea,
Q.C., in the case of Re Canadian Broadcasting Corp. and National
Association of Broadcasting Employees and Technicians (1980),26
L.A.C. (2d).. 34, did not view the A&P case as directing "that the -
board of arbitration act as an 'appellate body from the decision
of management'..."
Professor Weiler, at p.125 in .the B.C. Housing case
sets out another view developed by arbitrato,z:+;pri6r to the
ASP case. -
In the face of these two extreme positions, arbitrators developed : ~.
a third. intermediate posiCon between these two poles; Under this
Re ‘L’.E.W.. Local 523 aud b’rrim Carbide Cmodo Lfd. (1967), 18 L.A.C. 109 (Weiler) at pp. 117-8. I Governed by this principle of arbitral restraint, arbitrators have
perceived their role in reviewing management’s decisions on an
employees’ qualifications as involving two enquiries. Initially, the ‘.
arbitrator must determine the requirements of the job, and then .~~.
against those requirements, assess the reasonableness standards or
criteria used by the employer: Having made that dewrmination,
the arbitrator must then examine the manner. in which the em-
ployer applied those standards lo the various applicantsfor the job
\-acancy. (See generally. Brown and Beatty. Ca,todio~ Labour
Arb~fmtion (1977), at pp. 253-60.)
An examination of this statement discloses that there
are three elements in the~Company's.decision which,a board must
review. The first, is the ~requirement that management's judgment
be exercised in a bona fide manner. -- As.will be noted infra, the
Divisional Court in the A&P case did not disagree with such a -
standard. The second test concerns the reasonableness of the
decision. As will also be seen from an examination of the A&P -
case, this is also a requirement of the review by the board. The
additional requirement of,completeness, in the sense that the
action of management be carried out in accordance with “proper
principles and criteria" and "that all relevant considerations
have been averted to, and that all irrelevant facts have been
excluded from the process of decision," (See B.C. Housine~case at
~9.125) representsa~third:factor in the review - one that I views
as also being<.part of the ~approach mandated bye the Divisional :
Court,, in the..A&P case.
It is my conclusion that the .Divisional Cburt, in the
ALP case, - adopted the standard of review as set out in the U.E.W.
cdse decided by Professor P. C. Weiler, and referred to by Professor
J. Weiler in the B.C. Housing case at p.125. It is my conclusion
that Professor Weiler, in the B.C. Housing case, misapprehended
what the Divisional Court had.stated in the A&P case;and that the -
Co&t, in fact, in its direction.to the aboard of arbitration, did
~so in a manner which was entirely consistent with the position
taken by Professor FJeiler in the B.C. Housing..case.. At p.131 of
that case, it. is stated:
i 31 conclusion I would
adhere to the prevailing consensus among arbitrators, that the
proper scope of arbitral review of both management’s setting stan-
dards or qualifications as well as its assessment of employees’ abil-
ity should ensure that (in the words of the arbitrator in Kysor of
Ridgetam, at p. 888):
The judgment of the campany must. firrs be honest and unbiased. and not
actuated by any malice or ill-will diwted at the particular employee (or any
undue fawur for another claimant for the position) and sea& the manage-
rial decision must be one which a reasonable employer could have rexbed in
the light of the facw available . . By “reuonably”. I mean that the
employ& judgment must be one which has taken into aomunt all relevant
consideralions and which hai not been b+ q” any ~factors which we im-
proper wiihin the scope of the agreement
It is significant that the reasonableness of the
decision was linked by Professor Weiler to the question of whether
the employer, in assessing the factors to be considered by it in
arriving at its determination, had done so completely: that is,
by considering all relevant evidence and discounting all irrelevant
evidence. I have concluded (infra) that this is exactly what was
directed by the Divisional Court in the A&P case. Accordingly, the
conclusion arrived at by Professor Weiler in the B.C. Housinq.case
(and, as well, by.many other arbitrators) , .&at the Divisional Court
in the A&P case had directed the board to act as an appellate body
from thedecision of management,. resulted from a misreading'of that
case. ..~ y-,. The source of the conclusion requiring the employer
to establish that.its~ decision was correct was adverted to by
Professor Weiler at p.126 of the British Columbia Housing case.
He cites Brown and Beatty, Canadian Labour Arbitration, at pp.258-9.
Although +ing infrrqumtly. il hm been suggesti that this limiwd and
nwmr sundud 01 review on the second component of the employer’s d=iaion
should not prevail where the panies have nol. either in the seniority pmO’irionr
or in the management’s rights claw oi !iw sgreermm~, speeihcally confirmed
that the wtual determination of the employee’s rbilitin or qualifioliunr is 10
be based on “tht pinion or judgment” 01 the rmplq\er Rather. it is said
that the employer must aublirh that ill decision was correct. I
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He continued at pf’.. 126-T..
In otheF6ordsl a ‘kinority of arbitral awards have departed
from the policy of arbitral re%rainbnaintained in, Kysor ofRidge-
fotcn. snpro, by distinguishing these eases on.the basis that the par-
ticulaiaeniority clause in question provided that the assessment of
an employee’s ability was to be based on management’s opinion. If
such a qualifying phrase is provided then the principles of U&n
Carbide or Kysor qfRidgeforn apply. But if the agreement is silent
\hen an arbitrator may review management’s assessment as a
,question of fact. The semjnal decision espousing this approach is
that of Professor Christie in Re TeztiEe Workers Un.io~ ond Lady
Golf Towels Ltd. (1969). 20 L.A.C. 382 &here at pp. 888-4 he ob
‘served:.
On the other hand. the semnd decision, whether the employe?s in this use
am “relativsl~ equal” in the qualifications required by the campany is. under
this collective agreement..a matter to be determined by the board of arbitra-
kin. .4rtick 3.01, which empowers the company to “promote” etc.. is esprasl~’
subject to provisions of the agreement; including art. 9.08. the seniorit.! cIause.
thus it is not enough that the company satisfies this boaid that it did not act in
an arbitrary. discriminatory or unreasonable fashion or in bad faith in apply-
ins its own rtandnni_af_Slualifi_otionr. !~~,.ls,~,+sfy the buard.thstAaul
plied the standard correc$G oat’adhermg to 5emorR~. Where. s I” the two
Cni,,,, &t,;do cases cited above, the right to determine qualifi~lions is es-
p,,& given to management the power of an arbitration board u-ould awar
. (c b liticed in rerpect of this “cd d&sian as well: But such is MII the else
here.
The ‘Divisionai’burt, in the’ ‘A&q case, at ~~-334-5,
identified thoke~cases where an employer would not be req&ed. ~. .,
to~go beyond demonstrating its good f~aith in thee administration
of the particular.provision of the Agreement:
1.’ If the relcction and phcemcnt of cmploycer
‘in more responsible positions is to bt
solely a mmagement function, then it is not
difficult for the parties to a collcctivk agree- ment 10 xt forth the, understanding.
Whether managcmcnt is to be unfettered
in such a decision, or whether no prom*
tion 4, bc made without the consent and
agreement of the union. ore matters that
un form pxi of the collective agreement
,Howcvcr where, as hcrc, the collective
lgrecmcnt ItatCS:
then it is open to a mcrnbcr of the union
to take grknnce proceedings if be or she
is of the opinion that the company has not
complied with the requireunnts of the
collccti”e rlgreemcnt. *
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It is implicit in the language of the Court in the
A&P case that it is necessary that there be more than an initial -
grant to the employer enabling it to make the determination;
there must be a clear indication that the employ~erhad been
given an unfettered discretion'to decide .that the vacancy was
to be filled in the judgment'of management. This might be found
in the management rights clause or elsewhere in the.agreement. '
In the absence of such an unfettered discretion having been granted
to management, the middle position, as 'enunciated at p.125 of
the B.C. Housing case,was the one mandated by the Divisional Court
in the A&P case. - Those pre-A&P cases, which Professor Weiler .. -
identified, at pp.l26-127 oft the B.C. Housing case; as having
departed, from the policy of arbitral restraint, did so on the
basis of there being a "qualifying phrase" that then "assessment : ..:,:
of any employee's ability was to be based on management's opinion."
Absent a grant of such authority ("if the agreement is silent"),
they would hold that an arbitrator may review management's
assessment as a question of fact.
The Divisional Court, in the A&P case, identified the.
two cases more precisely. In one case, management was granted the
unfettered power to make the assessment (at p-335). The Divisional
Courtin A&P found restrictions on management's power in that case
-~indeed, there would have to be, as-Professor Weiler stated in
the B.C.. Housinq, case, at p.124, as otherwise "this arrangement
I* would be tantamount to delegating to management the power to grant
or withhold seniority rights as it sees fit." I would add, that it
p.39:
"If the judgment of the Court in the A&P
case is read without any preconceivedopinion
as .to what the Court decided, it is readily
apparent that the Court did not direct the
board of arbitration act as an 'appellate
body from the decision of management,on the
issue of a new hire in the face of the
seniority decision."'
He then quotes extens,ively from pp.~ 33445~.of .the 'A&O case. -
:., The baud vas of the opinion that the,principle upon which it relied did non
depend upon the inclusion in the collective sgreement of any special laxgug~ ~. ~.
to the effect that the employer had exclusive dkaetion to decide thnt the .~ ~.
vncu~y n-u to be filled in the’judgmezit olmanagement Reference was made..-. ..:
to the decision of Mr. JustIce Reach &g as an ubitmtnr in Re Cadion “-~
Indvatricd Limited. 1 L&C. 234 wherein it was stated:
‘In this and every lik;‘eue where there is mom for honest difference of
opinion. If it appeuku here admitted tc be a fut.-!hat the empbyer hu
acted hone&y. we do not feel that P Bonrd of Arbitratom would be justiKed
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would make meaningless the reference to the qualities to be assessed,
if management could decide' upon them without being required to
demonstrate it had done so properly, in the absence of specific
language permitting it to do so: that is, with an unfettered c~
~discretion.
Mr. J. D. O'Shea, O.C., in Re Canadian Broadcasting
Corp. a~nd Na~tional~ Association 'of Broadcasting Employees and
Technicians;. (1980) 26 i.A.C. (2d).~34, quite $roperly stated at
The board ad. cre.ture olthe coueetivc *prement mu, then we t4 it that
the provisions of the collective agreement have bee,, complied wiaith; iti mk
cannot be more or less than tibia. The honesty and lack of malofidcs in maldng
the decision am facton to be taken intc account. So, too. is the question of
whether or not the employer has wt.4 weasonsbly. Indeed, in determining
the ‘i-easonablene~” of the employer’s dedsibn, the baud may go a long way
LO determine the issue submitted to it. However, once the collective
agreement makes pmvisions w to the method of selection of employees for
prnmotions. then the baud must we to it that those pmvisiins have been
vmplied with and in M doing, it camot restrict itself to determining whether
the employer acted honestly and reasonably. If the board is not to make such
a decision. then the puliea in tie collective agreement should insure that i, ,.. .
mmagemht*a right in this regard is unfette+d.
[DCciIiGn remifte~
As a mwlt. 1 am of the opinion that the mutter should k remitted to the
board to determine whether or not the employer in selecting Miss Holloway
for the position of Assistant Head Cw.hie~, complied a-ith Article 9.04 of chc
mllectire .gmement. The iuve to be detetined by the bard will lx one 01
tomparing the mrpectivc sldk d qutiationr of Mm.. Ilawson md Miu
HoUoway for the job in question. but without limiting itself 10 determining if
th employer’s stkction was honest ud wnabk.
CatrOfthr”WthtOth&hlt.
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Unless the several parts of the Court's decision,
in the A&P case are related one to the other, it might be -
erroneously concluded that the Court had identified the
responsibility Of an arbitrator as' requiring a fresh-and immediate
determination of the griever's right to.the claimed job under the
standards set out in the collective agreement. At p.335 of the
A&P case,the Court stated: -
"The Board then framed the dispute in the
following words:
'Thus the~issue in the case reduces to one
of comparing the respective 'skill and qualifications'
of Mrs. Dawson and Miss Holloway for the particular
job in question.' (1 Lo
At p-335 the Court repeated the 'issue,as follows:
"The issue to be determined by the Board will be one
of comparing the respective skills and qualifications
of Mrs. Lawson and Miss Holloway for the job in
question, but without limiting itself to determining "
if the Employer's selection was honest and reasonable."
Furthermore, at p.333; the~~court repeated its agreement
with the statement of the issue: .,
"Attheroutset~,+the.Board had..quite ~properly--. :
and:.correctly:set-outthe.issues to be determined.:,..
It then appeared-to limit itsconsideration of
the question."
..,. ,. The Court(at p-334) faulted .-the Board of Arbitration.
for the way in which it undertook to determine the issue:
"The applicant submits that the board
put to itself the wrong question, namely,
whether the employer in giving the job
to Miss Holloway had acted honestly,
reasonably, without discrimination and
without bad faith. Whereas the question
ought to have been, did the employer, on
the basis of seniority, skill and qualifications,,.' _
award the ~full time job .to Miss Holloway rather'."'
than the grievor?
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"By relying upon this principle the board.
has, '.I think unduly restricted itself and
has failed tq deter,mine the issue placed
before it.
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"This is unfortunate, for the board appears to
have carefully reviewed thesevidence called by
and on behalf of the company. That evidence
would seem to indicate that the,employer had
taken all the requisite steps to comply with the
provisions of the collective agreement in determining
which of the competitors should fill the vacant
position. ~However, in light of the restrictions
that the board placed upon its decision, one cannot
be certain that the board'determined as it must,
whether the employercomplied with the provisions
of the collective agreement."
What the Court must have meant becomes clear upon
reading the ahalysis of Professor S. Schiff in the case of Re
Scarborough and C.U.P.E. Local 545 (1977) L.A.C. (2d) ~210 at.214:
"We grant that several passages in the Courts
reasons approving the board's statement,of the
issue appear to argue against our reading. But,
in setting out the issue~.,that way in the award,
the board was referring to the issue for the
employer's - not ,the board's - initial determination:
see 11 L.A.C. (2d) at p-292. Only later in the award
did the board discuss the, different question of the
scope of arbitral review: see 11 L.A.C.,(Zd) at ~,
pp.295-6. As we~read what~ the Court said about.the-~ '..
board's statement, the comments can only be made~~ '~
consistent with the burden-of the Court's reasons
if we assume that the Court understood'~it in the 'i.:=
way the board had intended;{ The contrary assumption,---:
that the Court meant its approval to define the issue I~
before the board, would render the arbitrator's~
determination of the merits identical with determination
of the. question the Court emphasized as basic, whether
the employer had honoured:thedemandsof a particular
seniority promotion clause. But, since the Cour,t
has directed arbitrators to consider the factors
of honesty, comoleteness and reason in determining
the basic question, that identity is not possible.
And,.apart from the illogic resulting from the
contrary assumption, a fair if far from inevitable
reading of the precise language. the court used ,,supports
our. conclusion."
The first reference made by,Professor Schiff (at/p.292
of the ALP Award) is as follows:
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’ The appropriate provision of the part-time collective agreement is
art. 9.04, which reads: “When additional full-t&employees are re-
quired the Company will give preference to pti-time employees on
the basis of seniority, skill and qualificatidns for, the job concerned
and availability for work.” In terms of seniority the gnevor’s senior-
ity date is April 6, 1967; while that of Miss Holloway is October 16,
1971. Therefore, on the basis of the criterion of seniority, the grie
vor would be entitled to succeed. However, it is apparent from
art 9.94 that seniority is merely one of three criteria and is not en-
titled to be given paramount consideration over the other two. Thus ’
the issue in the case reduces to one of comparing the respective
“skill and qualifications” of Mrs. Dawson and Miss Holloway for the : particular job in question.
The second reference of Profess;? Schiff ~(at pp.295-6
of the A&P Award) ‘is as follcr!s; : -
It 1s now well established that a board of arbitration ought not to
interfere with management’s decision so long as management has
acted honestly and reasonably; That principle does not, in our view,
depend on the inclusion in the collective agreement of special lan-
guage to the effect that the employer has “exclusive” discretion to
decide or that a vacancy is to be filled “in the judgment of manage-
ment”. The rationale for the principle is set out clearly in Re Cana-
dim Industries Ltd. and United Mine Workers. Local 13091 (1948).
1 L.A.C. 234 (Roach) [at p. 2371:
In this and every like case n-here there is mom for hanest differenee of opir-
ion. ifit appears - as here admitted to be 1 fact - that the employer has acted
honestly; we do not feel that B Board of Arbitrators would be just&d in inter- ~, ,.
&sing, by reversing the employer’s decision. for the z-ea~ln that ta do 60 would _
.. result imm&agement by ubitratxxs rather than management by the empbya 7 :,. ‘;: .’ . acting reasonably. could have reached the decision such a .is herr cbL
lenged by the Union;~no Board Of Arbitrators should inte&re. ; Or take 1.. : ;.
simpler illustrstion: take the cUe of a merehanl or a farmer or my empbiu.~ ..~, :’
opersting on a relsannbly small scale. He h&let us say, six emplqvees, ou of I
whom occupies o position superior Lo the anthem - somewhat in the nature of 1
foreman. The employer emrusts duties to that foreman to make decisions. ib
eluding the hiring of employees, allocating them 19 different larks, Vusting to’
the &ill and ahitity of that foreman. If the foreman should prom+e owof the
ether five employees, what would the merchant or farmer or other employee
think if the-decision of the foreman. which was made honestly and not cap&
ciously or as 1 result of bins oi bad faith or unjust discrimination. was subject to
revie\v by scene outside agency which had ne knowledge of the nature afthe tark .,.
to which thP promoted employee was to be assigned? Tbe business of that mer-
rhmt. fPrnwr or other employer would. in those circumstances. in the finzl wL
ysis be operated in that respect neither by the employer or his foreman. hut by
arbitrators.
We cpn undersland that III employee ever whom seme other employee has
been chosen may feel disappointed. but if the decision otthe emplo?erhas been
honestly made. we do not think that the disappointment of the employee or MY-
one representing him, should lead him to the point xhere he would be tempted
to usurp from his employer the function and authority vested in him alone. and
put it in the hands of swne third party.
The~reasoning of Mr. Justice Roach applies with equal weight to the :~,._:,
right of management to make~the more fundamental determination: ..
of the specific qualifications required for a particular job vacancy,
and the cases have so held: see most recently: Re Rep&b Alumi- ,,um Co: Canada Ltd. and Ini’l Molders and Allied Workers
Union, Local 48 (1974). 5 L.A.C. .(Zd) 251 (Schifn (at p. %4-g):
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( In the ordinal cxcrcise of management funrtianr cmpb!wx may dctermim
in the fin1 inrune what spcifx gullideations M necr~ for a pankular job
and what i-&t& weight should be given to each of the chosen qurlificntions.
After the employer h=‘made the determination. arbitn.tnra should honour tk
managerial decisions except in one or both of two cb~umstances Fit, the em
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pbycr in bad faith maniptited the purported job qualitications in order to sub ‘.~
vert the just clrimr of cmpbyeea for job advam-ement under the tenm ofthc co!-
lective agreement. Set RI Unilcd Brmq Workrt, Lam/ 173. and Carfing
Bred Zdd; WJ63). 19 L.A.C. 110 0ristic); Re T&i& Wo*m tinion ami L&y Gdl Todi Ltd. (BtiS), 20 L.A.C. 3sZ (Christie); R@ Cowdiam Trail- . .
~uobf&Lid.ondU~.W.,Loml99i~1973~,2L.A.C.f2d~13~Bm\n~.~.
whether or not the empbycr had acted in good faith, the chosen qulikations
tar no reasonable rekion to the u~ark to be done. See Re UAW.. Load 707. and Fmd Motor Co. o/Canada L&(1970). 21 L.A.C. 61. (u’utherill); RI Oil,
Ckmical d Atomic H’o~m. Lad 9.11. and Polywwr Corp. Lid. (192). 24
L.A.C. 277 VShe~f. -A”
Much the same type of comment was made by'Mr. O'Shea
in the C.B.C. case at p.41:
( : It is conceivable (if not likely) that the hoard of arbitration in
the A & P case might have upheld the company's decision even if
it had asked itself the right question, that is, "did the employer
comply with the provisions of the collective agreement?'.'
Professor Schiff concluded (at p.214),that the A&P
case required'that the arbitrator test more than the honesty displayed.
.by...~e;employer-.$n the ca,rrying out of the process and the reasonable:
(1:: .
"Faced with the griever's charge that them
employer violated the promotion/seniority
clause in the particular collective agreement, ~"-
the arbitrator must determine whether~that
charge is proved. In doing this the arbitrator
must, test what the employer has done for honesty
completeness and reason. But he must not, as
the Court held the board in A&P had done, avoid
the specific determinationbytopping as soon
as the subsidary tests had been applied. To
paraphrase the Courts injunction in a well-,worn
phrase, the arbitrator must not miss .the forest
for the trees.~~ In the end he is bound to determine
a grievance solely upon his decision as stated
in.the award that the employer did or did not
violate the~particular agreement's terms.”
As.1 understand Professor Schiff, when he refers.to
the subsidary tests,,these are "honesty . . . and reason' and ,the
principal test is one of completeness.
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i
It is significant that the Court in the A6P case -
Cat 334).stated:
If the wlection and placemmt of aplogoa in mm-e responsible positionr i t.3 be solely r'mxmgcment iunctfon, then it is not
difficult for the parties to a collective agrtc
ment to set forth the understandink
Whether mnnagunent is to be tmfcttved
in NC& a decision, or. whetha DO prokw
tion tin be made with-xi the consent md
lgrcemcnt ‘of the union, are matten that
cm form part of the collective agreunmt.
‘However where, 1s her% the collectk
agreement states:
then it is open to a member of the uniw
to take grievance proceedings if he or she
is of the opinion that the compx~y has not
complied with the requircemnts of the
colIectivc agreement e
. ‘.,I
"The board was of the ooinion that the
principle upon'w+ch it-relied did not
depend on the inclusion in the. collective
agreementof any speciallanguage ~.to the', _~. effect that the,employer had exclusive
discretion to decide that the vacancy
'T.' was to be filled in the judgment of
management... Reference .was~:made.-.to the i-:.~:,
decision of Mr.-.Justice Roach actins..as -' ~~. an arbitrator in Re Canadian Industries
Limited, 1 L.A.C. 234."
In making.this statement, the Court indicated that where management
had the exclusive discretion to decide how the vacancy was to be
filled,;the position of Mr. Justice Roach would be applicable. ~.
As long as the actions of management (good faith; '. ~~
reasonableness of decision) are relevant considerations for the
board, all cases will have certain common elements, whichever.
philosophy is followed by a board of arbitration.~. The,board will ,'
have to review all of the evidence of the respective attributes of
the competing employees as they relate to the qualities designated
in the collective agreement e.g. skill and ability. If the board
,~:.,
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concludes that management has, in arriving at its decision,
relied on all evidence which is relevant to conducting such an
assessment and has not been influenced by irrelevant considerations,
that will not end the matter. This is because the unreasonableness
of the decision can cast' light on whether management was conducting
its assessment bona fides..Where the decision is, in the opinion ,-
of the board, not one that an arbitrator could reasonably have
arrived at on an assessment of the evidence, it would'be necessary
for the board to conclude that the decision of management was not
arrived at bona fide and on a complete consideration of all of the --
relevant evidence.
The-board, on hearing all of the evidence, could not -.
avoid arriving at certain tentative conclusions as- to what the
* correct decision ought.to be.~ The: inevitable retidence of
arbitrators,.'referred to by Professor Christie in Lady Galt Towels.
(at p.384);will ordinarily serve as a brake againstithe~arbitrator
substituting "his own judgment for that of the company" whatever.
philosophy governs the approach.of the board.
The following is a comparison between cases decided
under the view I have of 'A&P and those which callfor a fresh
review of the employer's decision:
l(a) In cases where, arbitrators-have claimed 'jurisdiction to
review an employer's decision on the‘ merits, th'ere will be
a comparison of the attributes established in the collective
agreement.
(b) In cases where the bona fide-s, reasonableness and completeness'
testis followed, .there will be an identical comparison as :
-- part of the completeness test: Did thecompany consider all
relevant evidence and avoid the influence of irrelevant factors?
r-
t 2(a) In cases where boards have claimed jurisdiction to
review an employer's'decisiqn.onthe merits, a concl~usion
will be arrived at by the arbitrator as to what he regards
as the correct decision. E.g. are the competing employees
relatively equal in the respects specified ,in the agreement.
The board will also, in the process, be pressed with arguments
as to the correctness of the decision made by the employer.
Affected, as I believe they usually will be, by the admon- '
itions of Professor Christie, in the Lady Gait case, they
usually cannot fail to- address the reasonableness of the
employer's decisions. Although they can ignore the reasonable-
ness of-the decision, there will be some reticence in doing
so,~ particularly where the evidence addressed by management
was that which the arbitrator considered complete. Similarly,
the~,good~.faith of management will be a factor in determining
whether Professor~Christie's.presumption that management%
"supervisors are in .the best.position.to judge '>.. qualific-.:~.-
ations ...II will be a factor in the board's decision.
(b) In cases where the & fides, reasonableness and completeness
test is followed, an arbitrator will also be hard pressed
~-
(- ‘.
c-
not to arrive at a conclusion a~% to what the correct
dkcision should be, on comparing the qualities provided for
in the agreement e.g. skill and ability. Being required to,
he will, as would the arbitrator adhering 'to the first test,
although not required-to do So in the same way,' consider::.~
bona fides and compl,eteness.
‘
Whether the test applied is couched in terms of
correctness or.completeness, as long as then bona ~fides of manage-
ment is a factor for consideration by the arbitrator, along with
the reasonableness of the decision, the conclusions of arbitration
will be influenced by similar considerations. Under the first
test, the decision of management will,. in theory, be correct
where it accords with that of the arbitrator. In practice, as
Professor Christie observed in Lady Gait, what is deemed correct
will be influenced by the fact that management is usually
inherently better qualified than the arbitrator to make the
assessment. It is implicit in his statement that such inherent
advantage will be overcome should it be corrupted by evidence
of bad faith in carrying out the process and/or an unreasonable
decision.
In cases governed by the second,test, ~although the::
correctnessof the decision is not a factor, the fact.~that~.an
arbitrator, in comparing,the relative skill~,and~rabilityc- or other
specified factors of the competitors for the job, will also have
to consider the reasonableness of the decision, will result in
his considering other alternatives, perhaps one that he considers
to be~the correct one.
Instead of analyzing what an arbitratormust do in
satisfying either test, there has been a tendency to state the
nature. of the test which is thought to be the right one, and
hence the one to be followed.. This‘ignoresthe ,essentially
common features of what must take place in a practical setting
in favour of more abstract, and theoretical, representations Of
each test, and tends to obscure the reality of the process.
I therefore conclude that the intermediate position
identified by.Professor Weiler in'the B.C. Housing case is
identical to what was mandated by the Divisional Court in the
A&P case. However, I ~find,for the reasons stated above, that -
the two tests will be, in practice, remarkably the same. I
have perhaps taken too long to arrive at a conclusion, which
Professor Christie so succinctly stated in the Lady Gaft case.
The Evidence
Re: Messrs. Caston and Brophy
I have no hesitation in finding that the evidence as
to the-way, in which the representatives of the Employer carried
out their responsibilities disclosed no indication that they
did so in bad faith..' Mr.~ John Saj:an;-,the Chief Attendant.of,
the Oakridge facility,,was.the principal witness.on behalf-of
the:.Employer .and .he.-chaired,~the committee:establishedz:.in1979:.~ ~!
to fill the vacant Attendant 3 positions. Having observed,him
give evidence over an extended period of time;,1 found him to be
a credible witness and am satisfied that all of his actions
were genuine and that he was not motivated by any improper
purpose-in carrying out his duties on behalf of the Employer.
Although Mr. Sajan had some difficulty in reconstructing events
occurring at-the time of the competition, I concluded that these
difficulties in no way reflected upon his honesty but reprqsented'
a natural tendency affecting most people to experience difficulty
in recollecting events occu~rring some considerable time ago.
:
i
The Union raised a number of objections as to the steps
taken by the Employer to comply with the provisions of the
Collective Agreement in determiniqg which of the two applicants
should be appointed to the vacant'position. This I regard as the
Union's objection to the completeness of management in carrying out
its obligations pursuant to the.provisions of Article 4.3.
In referring to the selection process used in the competition, .
the Union stated:
"Mr. John Sajan, the Chief Attendant of the Oakridge
facility testified that he chaired the committee
established in December 1979 to fill the ten vacant
Attendant 3 positions.
"He testified that the committee develop selection
criteria and interview questions, tended in Exhibits 3
of the hearing on November 24, 1982, and a scoring.
system described in Exhibit 6 and 7 tended at the
same hearing.
"During.his evidence Mr.:Sajan emphasized that the
scores listed:.on Exhibit~.'l represented~only~one part.
of the~competition,?process.:.::!During cross-examination
Mr. -Sajan~expandedon the.meaning.of'this:statement.--.
He explained that~:work.performance was.considered eat '.~
.two stages in the selection, process: First, when the ‘+.
committee scored each candidate after hearing about
his record from the file 'and the reports of the super-
visors, and second, during a general discussion after
the scoring process~ procedure had been completed."
"Mr. Sajan explained that during the second round
of the discussion, the committee developed grave reservations
about the emotional suitability of Mr. Caston for the
position of Attendant 3. On the other hand, nothing damaging
came up during the second round of the discussion of the
qualifications and,,ability of Mr. Brophy. Consequently,
the committee selected Mr. Brophy over Mr. Caston for one
of the vacant positions, notwithstanding Mr. Caston's
greater seniority.
"In coming to its final decision, Mr. Sajan testified that
the committee gave a weight of approximately 25% with
written scores of ~Messrs. Caston and Brophy, which were
92 and 111.5 respectively and a.weight of 15% to the verbal
.I - 19 -
discussion which constituted the second part of
the selection process. In contrast, it is interesting
to note that different treatment was given to
Messrs. Therrien and Pilon in the.same competition.
The committee scored:
"Mr. Therrien 111.5 and Mr. .Pilon 108. In cross-
examination, Mr. Sajan admitted that the committee
gave approximately equal weight to the recorded
scores and the verbal discussions that followed.~"
Although I doubt that th,e committee intended to treat
the candidates differently, as a result of Mr. Sajan's uncertainty,
I am left with the conclusion that he was unsure as to the weight
i-. which was given to the respective portions.of the evaluation
process. From Mr. Sajan's answers anddemeanour I concluded that
he could not remember how the weight was divided between the
verbal discussion and the test scores. Nor was I satisfied .
that he could recall why a particular question's weighting was
considered.significant.
In the:circumstances;the-:candidates.having been.:employed;.
for some time at the Oakridge facility .in the ~Attendant Z.classif-~
ication,, and having also spent some ~time in the position of Acting
1~
\.. Attendant 3, there being a significant overlap between the
responsibilities in the Attendant, 2 and Attendant 3 position, there
was a reasonable and objective basis for assessing the suitability
of the candidates on the basis of job performance. Although an
Acting Attendant 3 and a PermanentAttendant 3 are not identical
positions', in terms of work responsibilities, they are very close
in this regard.
There might be occasions where it is necessary
to place greater reliance on the creation of a test which
artifically examines the various criteria which would be important
in the performance of the job under review, however, in a case
such as this,.much more significance ought to be given-to evidence
of work performance on the job,where such evidence is of the
greatest relevance. An artificial test, intended,to examine the
various.'attributes necessary for satisfactory performance on the
job cannot seriously affect visible, tangible manifestations of the
characteristics sought to be tested. This is especially so where
the test is created by amateurs and is unvalidated. This is not
to say that persons familiar with the job, and with the character-
istics which are reguired in 'orderto carry out'the job, cannot
prepare 'a test based on their practical experience. It does mean,
however, .that the use of such.tests must be closely scrutinized
and their resultsought not to prevail where actual events ,discIose--~~
that~an applicant~has functioned well in an area where-the test
indicates~ that.he is not likely to do so. Here, there.was evidence
to demonstrate that both applicants had functioned well as
Attendant 2's and that they had performed satisfactorily as
Acting Attendant 3's. 'On the evidence, I am satisfied that
there was no, indication that Mr. Caston's work was other than
satisfactory in either of those positions,nor was there evidence
to disclose a significant difference in performance between the
two applicants.
The.-union also raised a number of criticisms with
respect to the selection process.
"i . The inclusions of general impressions within
the selection criteria was unwise because of the
highly suggestive nature of the factors considered
under this heading."
General impressions, as long as they do not dominate
the process,are unobjectionable. Accordingly, I cannot give much
weight to this objection.
n(ii). The questions posed by the committee to
each applicant were not entirely adequate to
really test the' qualifications of the applicants.
For example there was no question to test their _,___
ability to counse~l patients,. even though~the
position specifications indicated that this is
a characteristic feature oft the Attendant 3.
Also question 9, for example, was too vague
and opened-ended to make an assessment of security
awareness or nursing knowledge."
The questions, although the product of amateur preparation
'and although not validated, can be seen to test qualities relevant
to the job. One cannot expect an exercise of perfection in these
matters. Nevertheless, my concerns, as expressed-above, remain.
There.appears:to have ~beena realpos~sibility that the~reality
of job.performance was overlooked by the committee because of
impressions they received from the test. I am also uncertain,
because of Mr. Sajan's inability to satisfy me on the matter; how
much weight was given to the test and how much to the assessm&t
of actual work performance, or the extent to which the perceptions
of the committee were distorted by reliance on the test to an
inappropriate degree.
"(iii). The scoring system used in .this case
left some unanswered questions:, Then sheet prepared .~=.~
by Mr. Elrick [one of the members of the,Selection,,Coinmitteel
(Exhibit 7-4) shows alterations to the scores of
.Mr . Caston from~ a total of 25 to 17, while the score
of his rival, Mr. Brophy, is listed as 24. Mr. Elrick did not give ~evidence about this alteration,
‘;
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i’
.+ / .:
i
. . . . .
:,., .:;
: :
.,.
/.
i ‘\.
,,’
\.:
and Mr. Sa,jan, who introduced the score sheets, was
unable to explain the change. The propriety of such a change~when unaccompanied by an adequate explanation
is a matter of serious concern to the Union."
While.1 do not regard the change in Mr. Elrick's evaluation
as evidence of bad faith, the absence of evidence as to the basis
for the alteration leaves a serious doubt in my mind as to the
completeness of,the~process. .-
The Union 'also raised the following further ~objections:
"While the foregoing criticisms are important,
they pale in comparison to our concern over the
informal discussions which constituted the second
part of the selection process."
I can see nothing wrong in what the committee attempted
to do. There was the test portion of the process and there was
the discussion of the work history of the applicanbby the committee,
most oft whose members had personal knowledge of the work history
and~quality ~of.work performance of then applicants. It was quite
proper~.for them;to'exchange~ informationas to their own personal
knowledge~.relatinp.to these~attributes~.:~Nevertheless,I was
concerned with the-fact that certain criticisms. arose.relating
to Mr. Caston~whidh he was never made aware of or given an
opportunity to respond to. These matters were not recorded in his
personnel file. The union contended that it was unacceptable for
the employer to act on serious criticisms where the employer did
not see fit to make those criticisms the subject of some disciplinary
action or performance appraisal. After having heard all of the
evidence, I was left with the distinct impression that the matter
which was of most concern to Mr. Sajan~ (and to the rest of the
Committee) related to the emotional stability of Mr. Caston. I ‘am
satisfied that emotional stability in an Attendant 3 is a matter
of fundamental importance. It is, of course, not enough for
Mr. Sajan to have an honest belief that Mr. Caston was less
emotionally stable than Mr. Brophy. It is important to evaluate
the evidence upon which he relied. The significant matters which
he appears to have relied upon were:
1. An incident which occurred in the Airing Court,some three
years before the competition. Mr. Caston had no recollection
of the incident and from Mr. Sajan's perspective it was of such
.little moment that no discipline was imposed nor was any reference
produced that any written record of the incident was preserved.
I would conclude that if the incident occurred it was trivial,
and, on the evidence, represented a singular and isolated incident
- one which hardly warranted the importance given tom it, in retro-
spect, by Mr. Sajan. Occurring, as it did, so long ago, it repre-
_ sented an unreliable indicator of Mr. Caston's qualifications for
the ~job; where~his .emotional stability was fin -question.~~ In the
circumstances,it represented evidence:.which.was.,~largely ~irrelevant
to the' issue~.for decision and the weight apparently given to it
affected my view of the employer having satisfied the requirement
of completeness.
2. An incident concerning a temporary loss of vision by Mr. Caston,
_'
in 1974 (according to Mr. Caston), or in 1977 (according to Mr.
Sajan). Again, there was insufficient evidence to demonstrate that
this was other than a single event and the evidence of Mr. Caston
satisfied~me that the incident resulted. from an eye condition, from
which~.he then suffered, which condition was successfully treated
through the use of medication.
.
Mr. Sajan, without further evidence, interpreted the
actions of Mr. Caston, at the time, as consistant with a finding
of emotional instability. This conclusion appears to have had
a considerable impact on him and, when communicated to the Committee,
on its evaluation of Mr. Caston. My conclusion is that !.?r. Caston's
then reaction was ,understandable, once it was appreciated thathis
temporary vision problem had a physical and not a psychosomatic-
basis. Mr. Sajan does not recall any mention by,@&. Caston of a
physical basis for his reaction. It may be that no proper
explanation was furnished by Mr. Caston, however, he does not appear
to have been asked forone, the evidence being unclear in this
regard. I have no reason to disbelieve Mr. Caston's explanation.
While the incident no doubt occurred, its significance was
unwittingly misinterpreted by Mr. Sajan and evidently had a dispro-
portionate influence on the ultimate decision which resulted in
Mr. Brophy being selected~ over Mr. Caston.+Mr. Sajan, being‘the
Chairman of the Committee, ~also appeared to have had considerable
influence on the process. While I am notcritical of his position
within the Committee, it is a significantfact and 'can.explain ~
why.the incidents referred to apparently we~ighed so' heavily upon
the minds of the Committee in arriving at their decision.
As noted above, the evidence as to the actual work
performance of Mr. Caston and Mri Brophy was such as to make it
very difficult to distinguish between them.: Perhaps Mr. Brophy, ._.
was.a better-Attendant 2. The evidence, unless the scores of the
impugned tests are considered as having much weight, does not
disclose a significant ~difference between them which demonstrates
other than relative equality in the areas of qualifications and I
ability.
- &3 -
.
I would refer, once again, to the concern I have over
Mr. Elrick's scoring which causes me'to doubt the usefulness of
the test used in this case as a measuring device. My reading of
the brief written appraisal of Mr. Elrick eon each of the contestants,
on December 29, 1979, (Exhibit 2-4 for Mr. Caston and Exhibit
5-3 fqr Mr. Brophy), .is.consistent with Mr. Caston being considered
as superior to Mr. Brophy.
There.is one further matter that should be referred to.
That is Mr. Sajan's testimony that he had called meetings with
Mr. Caston to discuss the latter's work performance. Mr. Sajan
could recall no details of the meetings and I am not persuaded
that such residual memories should be permitted.to be relied on
in assessing the suitability of candidates. Lacking certain
specific observations of a relevant kind, the meetings could be
of little assistance in assessing the respective qualifications
of the:candidates.
Upon reviewing all'of the evidence I must conclude that
the Employer, although it behaved honestly, failed'to demonstrate
that it had performed its responsibilities as'required under the
provisions of Article 4.3 of the Collective Agreement. That is,
it failed to establish that it had done so in a complete fashion.
In the light of all of the evidence and treating the
reliance on the test as representing a distorting factor in the
, evaluation process, and,in recognition of the considerable reliance
by the Committee on the two incidents above referred to;the
decision of manageme~nt cannot be viewed as being a reasonable one.
-
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.I
: i,
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i., .\
Having compared the respective skills and qualifications
of the applicants Caston and Brophy in the manner above set forth,
I would normally conclude that the matter should be remitted
back t0 the Employer in order that it might comply with Article
4.03.
However, both parties commented upon the difficulties
that would be created in doing so after so great a lapse of time.
On the facts, I would find it unlikely.that the matters presented
to this Board would be affected bythe 'creation of a new
test,when faced with the reality of the work performance of the
applicants. In addition, the difficulty of carrying out a test
after the considerable lapse of time has already been adverted to.
In the circumstances, this would appear to be a case where, in
allowing the grievance,we should award that the position of Attendant
3 be given to Mr. Caston. From the comments of its spokesman, I
take it that this result was also preferred by the Employer, should
the grievance succeed. ~ ~
It was agreed between the parties that we should retain
jurisdiction to.deal-.with any difficulties experienced by them
in arriving at the amount of compensation payable to Mr. Caston
as a result of this Award. . _
Messrs. Pilon and Therrien .
In the case of the competition between Messrs. Pilon and
Therrien, I would merely repeat my misgivings relating to the
completeness of the carrying out,of the Employer's obligations under
the Collective Agreement.. Furthermore, I am not satisfied that the
test-scores demonstrated a substantial superiority on the part of
Mr. Pilon, there being an almost equal division on the part of
the committee, two ~of~the five finding Mr. Pilon better than Mr.
Therrien, one finding Mr. Therrien better than Mr. Pilon and two
finding the two relatively equal.
We also had the record of the performance appraisals of
the contestants (Exhibit 1 and 2 submitted during the hearing
on April 21, 1983). Mr. Therrien received appraisals in 1975
from Mr. Quesnell, suggesting a very high level of performance,
and ins 1976 from Mr. Tugwell, showing above average performance
but not on the level, of Mr. Quesnell's rating. In 1975,an
apprarsal was obtained from Mr. Vaillancourt, which was substantially
different in form from the others,making comparisons somewhat
difficult. Although the tone established by the appraisal is
modest and restrained in its employment of praise, I would not
find that this implied a deterioration in the performance of
Mr. Therrien. Mr. Pilon received two good appraisals from
Mr. Herring;in 1974, and another undatediand a very .good appraisal
in November ~1978 from~Mr. -Morrow. I have difficulty, in reviewing
the appraisals, fin finding any clear and consistent-difference
in the contestants'level of performance. .In the result,1 would
have difficulty in finding them other than relatively equal in
termsof ability and qualifications.
There was-another piece of evidence which we considered.
The selection committee had the benefit of the brief reports
prepared for the occasion by the ward supervisors, Mr. L. A.
Chapelle for Mr. Pilon (Exhibit 5) and Mr. Vaillancourt for
Mr .Therrien (Exhibit 4). .~ If these reports were used,.without
any further consideration, the Union acknowledged that "one would
have no hesi-tation in preferring Mr. Pilon to Mr. Therrien." It :
- 28 -
is always possible that Mr. Therrien had the misfortune to be
reporting, as the Union suggested, "to a supervisor who is
determined to damn him with faint praise." The Union 'lsugqested
that he'judged his.staff by a harsher standard than other supervisors
[as] may be seen by his equally harsh assessment of,Mr. Xing
(Exhibit 61, another successful candidate in this competition
who received the identical score of 108 awarded by the selection
committee to Mr. Pilon." While Mr. Vaillancourt's assessment must
be given some weight, it must also be affected by his appraisal
of Mr. King and its impact is, to that extent, somewhat reduced.
1, am satisfied that Mr. Sajan, as he testified in cross-
examination, had concluded, along with the Committee, that Mr.
Pilon was doing a superior job to Mr. ~'Therrien. This conclusion
arose during the informal discussions following the scoring process.
Nevertheless, he was unable to elaborate on his reasons or give
the.Board any idea as to whether the degree of superiority.noted
in these discussions would be greater.or less than-that.indicated
by the recorded scores of 108 and 101.
I would not, as the union suggested I do, ignore the
informal discussions and I 'regard such discussions as a proper
and positive way of comparing the ,candidates, based on the first
handexperience of the persons involved. In this case, the conclusion
that Mr. Pilonwas more satisfactory. does not persuade me that the
degree of superiority was so significant as to cause me to. conclude
that the candidates were other than relatively equal in qualifi-
cations and ability. On the evidence which the Employer could :,
consider, its decision was unreasonable. In addition, its'use of
the test resulted in its being influenced by the incompleteness
c - 29 -
of the manner in which .it carried out its responsibility
under 4.2 of the Collective Agreement.
In the result, I find that there was relative
equality on the factors of qualifications and ability and the
Employer ought tohavethen considered seniority. As in the
case of Messrs. Caston and Brophy, this, is a case which would
best be resolved, in allowing the grievance, by awarding the . ..'i. :
posted position.to Mr. Therrien. In addition, as agreed by
the ~parties, we will retain jurisdiction to deal~with any
differences which may arise between the parties as we did in
the case involving Messrs. Caston and Brophy.
DATED AT London, Ontario
this 6th day of February, 1984.
M.R. Gorsky Vice Chairman
M. Perrin Member
A.G. Stapleton Member