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HomeMy WebLinkAbout1980-0605.Lebreton.81-12-023etween: Mr . .Narcel Lebreton Griever Eefore : IN TEE UTTER OF AN ARBITRATION .ZJrder The CROWEJ EMPLOYEES 20LLZCTIVE BARGAINING ACT Before 'THE GRI?VA>JCC SETTLEMENT SOARC For the Grievor: - And - The Crnwn in Right of Ontario (Ministry of Transportation & Comunications) Employer Mr. R. 5. Verity, 2.C. Vice Baizman Ms. M.,M. Perrin Member Mr. E. R. O'Xelly Member Ms. L. Stevex, Gr;ei-ante Officer Ontario Public Service mployees 'LTziDn For the Employer: Mr. L. Fraser Kinistry of Transportation S Communications Hearings : June 30th h September litk, 1981 c -. 2- AWARD This case is a "competition grievance" in which the Grievor, Marcel Lebreton.grieves that he should have been chosen instead of Tadeusz Czuba for the position of Patrol Operator "?a" - Classification - Highway Equipment Operator 112 (District of Cochrane). Mr. Lebreton alleges that he has greater experience and greater seniority than the,successful Applicant. Mr. Czuba was notified of the Hearing, attended in person, was present throughout and took part at the Hearing. This Grievance is pursuant to Sectioa4.3 of the Parties' Collective Agreement which reads as follows: "In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consider- ation." There is no doubt whatsoever that the Grievor had greater seniority than the successful Applicant. Mr. Lebreton's continuous service date is June ZOth, 1974, while Mr. Czuba's continuous service date is December llth, 1978. At the time of the Grievance (September llth, 1980) MJZ. Lebreton was classified as a Highway Equipment Operator $1 acting in the position of Patrol Operator "A" and paid at *be hourly rate of $6.47. As of the same date, Xr. Czuba was classified as a Highway Equipment Operator #3 in the position of Patrol Operator "B' and was paid at the rate of $6.87 per hour. Article 4.3 of the Collective Agreement makes it clear that seniority is a consideration only when the primary consideration of qualifications and ability to perform the job are relatively equal. For the Grievor to succeed in this instance, the evidence must demon- strate on the balance of probability that the Griever's qualifications and ability for the job in question are relatively equal to those of the successful Applicant. Briefly, there are two issues for the Board to consider, both of which are factual in nature. Does the evidence establish that then Griever's qualifications and ability to do the job are such as to be deemed "relatively ~equal" to those of MIZ. Czuba? The second issue involves the selection procedure -- Were the selection procedures for the position fair and reasonable in the circumstances? The position of Patrol Operator "AB" -- Competition Number 16-80-20 -- was posted on July 31st, 1980 as follows: "ONTARIO MINIST~RY OF TRANSPORTATION AND COMMUNICATIONS COCHMNE DISTRICT COMPETITION NO: 16-80-20 AREA OF SEARCH: DISTRICT WIDE APPLY BEFORE: AUGUST 18, 1980 THIS COMPETITION IS OPEN TO REGULAR, PROBATIONARY AND UNCLASSIFIED -4- POSITION: PATROL OPERATOR "AB" CLASSIFICATION: HIGHWAY EQUIPMENT OPERATOR ~2 SALARY: $6.47 to $6.67 per hour (S13,504 - $13,921 per annum) LOCATION: EAPUSEASING THE JOB: As a Patrol Operator "AB" you will: -Operate type "A" and "B“ equipment for 70% of years working time with a minimum of 40% on type "B". May be required to perform duties of night patrolman for 10% - 15% of winter schedule. OR -Act as a labourer in suaaaer and perform duties of night patrolman for a minimum of 4 months during winter. OR -Operate type 'B" equipment in summer 40% of time and act as wingman during the winter for at least 70% of years working time. Example type B equipment graders, 5 - 10 ton trucks with accessory equipment, plow and wing, seeder, etc. loaders. TRE CA&DIDATE -Must have at least grade 8 education +Yust possess "D" Operators licence and obtain necessary Ministry Operators permit in written and practical highway equipment operator 2 tests. -Must have an acceptable driving record -Should have several years experience in operation of light and heavy equipment -Should have abil.ity to supervise labourers and assistants, or act as night patrolman -Should be in good physical condition INSTRUCTION TO APPLICANTS: -apply by submitting a completed Ontario Public Service "Application for Employment" - Form 7540-1062. -' -- -A submission in any other form will not be considered. -The successful applicant shall be reimbursed for 100% of his or her moving expenses by the Ministry of Transportation and Communications regulations. I I -5- -Applicants selected for a personal interview will be contacted directly by a personnel representative. -When invited to attend an intexxiew, each applicant is responsible for arranging for the required time off. -"Equality of Opportunity for Employment" ADDRESS-ENVELOPE TO: Ministry of Transportations .5 Communications Mr. A. E. Pettigrew, District Engineer P. 0. Bag 5000 50 Third Avenue Cochrane, Ontario POL 1co DATE POSTED: 31 July 1980 js" The job posting for the competitions in question was , based on the position specifications and class allocation form for Patrol Operator AB as follows: "POSITION SPECIFICATION AND CLASS ALLOCATION FORM USE ONLY WHERE CLASSIFICATION DECISIONS APE MADE .UNDER AGREEMENT BETWEEN A DEPUTY MINISTER AND TEE CBAIRMAB OF THE CIVIL SERVICE COMMISSION. ONTARIO PUBLIC SERVICE PART 1 Position Title /I This Position is: 11 NEW Patrol Operator A-B II x REVISED PREVIGUS Position Title Class Title Class Code Position Code Bwy. Equip. Patrol Operator A-B Operator 2 17252 06-8164-08 Immediate Supervisor's Title Position Code -6- -Ministry D&vision Transportation '& Communications "" ." "' Sranch Section Location District X16 Maintenance P: 0: Box ~820, Cochrane, Ontario No. of Positions Supervised Incumbents Supervised Incumbents Directly Indirectly Directly Indirectly Labourers as 18 N1.L : : : : : s1.L : : m : : : : : : : : : : : ~assigmd 2. PURPOSE OF POSITION (Why does this position exist? State goals objectives etc.) To operate and'maintain within a specified patrol area one or more units of M.T.C. type "A" or "3" equipment for the purpose of maintaining roads and right of way: to perform the duties of night patrolman when assigned; to perform general labcuring duties when required. 3. SUMMARY OF DUTIES AND RESPONSIBILITIES (Indicate percentage of time spent on each significant function. Indicate scope, equipment, working conditions unusual features etc.1 1. Under supervision of Patrolman, incumbents perform duties and accept responsibilities involving various combinations of work assignments relative to the operation of equipment known as Type A and B, performing as Night Patrolman h general labouring duties to provide good maintenance of Highways and right-of-way within a specified patrol area. Typical combinations of work assignments are as follows: a) for at least 70% of the years working time operates a combination of type "A" and "B" equipment with a minimum of 40% on type "3". May be required to perform duties of night patrolman for 10% - 15% of winter schedule. b) acts as labourer in summer and performs duties of night patrolman for a minimum of 4 months during winter. Cl operates type "3" equipment inn summer (40% of time) and acts as Wingman during winter, for a total of at least 70% of years working time. 2. While operating equipment performs such duties as: -transporting,Patrol personnel, equipment or materials from Patrol Yard to job location -cutting grass on Highway right-of-way -maintaining roadside shoulders with tractor and at -loading materials on to vehxles or stockpiling sa It an% sand achm nts -removing snow from road surfaces-applying salt and sand - 7 - 3. Maintaining equipment to which assigned by performing such tasks as: -washing, cleaning and greasing as required -inspecting equipment daily reporting mechanical defects to supervisor -checking fuel, oil and lubricant levels and topping when required -checking all safety equipment, flares, fuses, signs, firt aid kits, fire equipment etc. and ensure such equipment is in good operating condition -complete equipment report forms daily-noting fuel and oil consumption, type of operation etc. 4. Performs a variety of labouring tasks as assigned such as: -digging ditches -painting and replacing damaged guide rails -cutting grass and weeds using hand mowers -acting as flagman warning motorists of work in progress -cleaning and sharpening hand tools -miscellaneous janitorial duties in and around Patrol Headquarters -re-erecting damaged Highway signs -patching road surface 5. As Night Patrolman patrols specified Patrol area frequently visually inspecting road conditions. Using mobile radio, orders out snow plow or sanding crews as required. Prepares reports of shift operations. 6. Auxiliary duties -may be required to supervise a group of Labourers as assigned -may be required to act as Sub-Foreman in the absence of the Patrolman -as assigned. NOTE : Incumbents are subject to shift schedules during winter months. 4. SXILLS AND KNOWLEDGE REQUIRED TO PERFORM ~TBE WORK (State education, training, experience, etc.) Preferably grade 10; successful completion of appropriate M.T.C. operator tests and possession cf current chauffeur's licence; some experience in the operation.of highway equipment or related machinery and an acceptable driving record: supervisory ability. 5. SIGNATURES Immediate Supervisor Date Da. MO. Yr. "R. a. Owens" 18 11 74 (please type supervisor's name), R. H. OWENS Ministry Official Date Da. MO. .Yr.. "E. M. Barrie" 18 11 74 (please type official's name 5 title E. M. BARRIE -8- 6. 'CLASS ALLOCATION class Title Class Code Occupational Group No. Effective Date Da. Ma. Yr. Highway Equipment Operator 2 17252 OP-9 Confirming Yave classified this position under authority delegated to me by the DepUtY Minister and in accordance with the Civil Service Commission classification standards for the following reasons: A. Combinations of listed duties and related percentages conform to requirements of allocated classification. 9; Confirming existing class allocation. signature of Date (Please type Evaluator's' Authorized Evaluator "J. Henderson" I'p* 12' 1 ::'I Na?)Henderson' Evidence was presented at the Hearing that the position of Patrol Operator "AR" is one of considerable responsibility. The successful Applicant must not only drive the Highway Equipment (both light and heavy equipment) but also must make minor repairs and maintenance to that equipment. He must be aware of seasonal variations in responsibilities, be able to complete paper work, be familiar with all Ministry Rules and Regulations, be aware of safety precautions, and possess supervisory skills. A major mistake on the job can be costly in both time and money to the Ministry. In a review of the evidence, there is little doubt that both the Grievor and the successful Applicant are qualified for the position. - 9- Mr. Lebreton graduated in 1969 from Kapuskasing High School receiving at that time a Grade 12 Technical Diploma. After several years in his own carpentry business, he joined the permanent staff of the Ministry at Kapuskasing in September of 1974. In 1980, he became an Equipment Operator number 1 as a result of a competition after being a temporary operator for several months. Mr. Lebreton testified that he has extensive experience in operating Type "A" equipment and more .limited experience with Type "B" or heavier equipment. Se has acted as Night Patrolman occasionally. The Grievor has a Class D licence and has passed Ministry testing in the following Type "A" equipment: Suburban Car or Station Wagon l/4 - 1 Ton Panels or Express 2- 4 Ton Dump Power Loaders Bucket 2 WheeI Drive 3 Ton Truck with One Way Plow No Wing In addition, he has passed Ministry testing for the following Type "B" equipment: 4- 6 Ton Truck with Plow and Wing Power Loaders Bucket 4 Wheel Drive - 10 - I The Grievor prepared a diary, on his own initiative, I which fairly illustrates his equipment experience and the hours associated with the operation of equipment driven from the years 1976 to 1980. MS. Lebreton's diary entries are reasonably con- sistent with his evidence at the Hearing. The successful Applicant, Mr. Csuba, graduated in 1973 after a Grade 12 Diploma in Science Technology arri Trades at Xirkland Lake Collegiate. He then attended a two year Marketing and Managing course at Northern College (Kirkland Lake). On graduation, he enrolled in a Management Training Program at the ' Bank of Nova Scotia and eventually became the accountant at the Hearst branch. His responsibilities there included supervising eight to ten bank employees, 'training staff and customer public relations work. He left the Bank in 1978 and joined the Ministry on December’llth of that year. He first became a snowplow helper, eventually an equipment operator,and in May of 1979, as a result of the competition a Group 3 equipment operator. . Prior to the competition in question, Mr. Czuba was posted to the Nagagami Region. He attributes hiS rather rapid advancement with the Ministry to the fact of his early training in the use of heavy equipment and because of a general shortage of man power in the Nagagami Region. Mr. Czuba has had extensive experience admittedly in a comparatively short period of time in the use of heavy equipment - II- and in particular has operated all Operator 2 equipment, both heavy and light equipment. Mr. Czuba has a Class D licence and has Ministry approval following testing in the following Type "A" equipment: Suburban Car or Station Wagon l/4 - 1 Ton Panel or Express 2- 4 Ton Dump Power Loaders Bucket 2 Wheel Drive 3 Ton Truck with One Way Plow no Wing The Ministry has approved Mr. Czuba tir the following Type "B" equipment: 4- 6 Ton Truck with Plow and Wing Steam Generator Power Loaders Bucket 4 Wheel Drive Berm Leveller (shoulder grader) A Selection Board was established under the Chairmanship of KeMeth Russell. hr. Russell's position is sea Patrol Supervisor and his jurisdiction includes Kapuskasing, Wagagami and two other area patrols. Mr._Ru&ell has been with the Ministry since 1960 and has had training in virtually every facet of Highway Patrol and operation. Sixty percent of Mr. Russell's responsibility is in actual field patrol, and the Board has no hesitation in stating that Mr. Russell is very familiar with the day to day operation of the men in each of his four Patrols. The other two Members of the 1 -i2 - Selection Board were Mr. Ronald Owens, Maintenance Supervisor for the area, who like Mr. Russell has great familiarity with the day to day operation. of each of the regions. A third Member of the Board was a Mrs. Harris who is the District Accountant. All of the three Board Members had received Ministry training in the selection process procedure. The Griever's Supervisor, a Mr. Lucien Riopel presumably would have.been a Member of the Board, however he had not'received the requisite Ministry training in selection procedures. This tri-partite selection Board prepared the job , posting for the competition in question and in so doing made reference to the job specifications of an "AB" Operator. There were four candidates who applied as a result of the competition -- three of which were interviewed by the Selection Board including both hr. Lebreton and hr. Czuba. The Selection Board interviewed each of the Applicants for approximately 30 to 40 minutes. Each Applicant was asked the same questions in the following identical order: TECHNICAL KNOWLEDGE: Describe briefly your work experience which you feel is related to this position for which you have applied? What type of equipment would you be required to operate summer and winter in this position? What do you feel are the most important factors in road maintenance, specify summer and winter? - 13 - MANUAL SKILLS: Bow would.you give the Garage Staff sufficient information on an equipment breakdown, so they could assess the problem by radio or telephone? What is the procedure for backi,ng up Equipment? how would you anticipate and prevent accidents in daily operations? RESPONSIBILITY AND MXMJBITY: What type of Operator's Licence.do you now have? Any demerit points? If so, please explain loss of points? When giving verbal orders to your subordinates, what are some of the most importantfactors? Explain your ambitions for your future within this Ministry in regards to applying for competitions in respect. to advancement? These questions were of a reasonably general nature designed to illicit the Applicant's experience, knowledge of the equipment, knowledge of the job and supervisory skills. Each Board Member prepared notes on separate interview work sheets and transferred these notes briefly to a composite evaluation form and determined a mark for each-of the Applicants with ten being the perfect mark for each of the categories of Technical Knowledge, Manual Skills and Responsibility.and Maturity. The superior candidate for each component was given a mark of ten, while others were scaled downwards in comparison. Each candidate's score was multiplied by the weighted factor determined by the Selection Board in each category. For the category of Technical Knowledge, the weighted factor assigned - L4- was ten, for Manual Skills eight , and for Responsiblity and Maturity six. Although the score varied between each of the Selection Board members, Tadeusz Czuba was the unanimous choice of each Of the Board Members by a wide margin in total points. In a determination of the issue, the Board was impressed by the evidence and experience of Mr. Russell. He testified that Mr. Czuba gave by far the best answers to the questions at the interview. On the other hand, Mr. Russell's evidence was that Mr. Lebreton had difficulty answering general questions and had to be prompted on several occasions. The Selection Board felt that Mr. Lebreton's difficulties with the answers to these technical questions reflected upon the Applicant's knowledge of the position. Mr. Russell stated that the Board was'influenced by .Mr. Czuba's experience as a Group 3 Operator which inevitably gave him a more rounded background particularly in the use of the Type B heavy equipment. Czuba had experience operating a Steam Generator and Berm Grader -- Lebreton had no such experience. Mr. Russell testified that Czuba had extensive experience in a supervisory capacity acting as Night Patrolman and this fact gave an additional advantage to Czuba over Lebreton. Mr. Lebreton admittedly had limited experience in supervision and difficulties in exercising that supervision. This Board has no hesitation in acknowledging thatboth Mr. Russell and Mr. Gwen were well acquainted with the . ’ personal history and work experience of both Czuba and Lebreton. we accept the evidence of Mr. Russell that Mrs. Harris, the other Board Member had a good degree of familiarity with each of the Applicant's personnel records and that she too knew the capabilities of each of the Applicants. Mr. Lebreton testified that he had experienced difficulties getting along with his own Supervisor, Lucien Riopel and Mr. Lebreton stated that he felt discriminated against by the Supervisor.' After reviewing..the evidence~in detail, this Board,js unable to find that Mr. Lebreton's qualifications and abilities , are relatively equal to Mr. Czubds, and accordingly seniority does not affect the outcome of this competition. Based on all of the evidence, it is impossible to avoid the conclusion that Mr. Czuba is an Employee of above averagaability. The Board does not mean to cast negative aspersions against Mr. Lebreton. The evidence indicates that hr. Labreton is a conscientious worker, and hopefully he will be given encouragement and consideration for a promotion in the future. This Board does have some concerns that the Selection Board procedure for this job competition was far from ideal. The &ocedure followed still leads to the charge of subjectivity. The Quinn Award (9-78 -- Vice-Chairman Prichard) makes it clear that all Members of I . ’ - 1'6- a Selection Board should review the personnel files of each Applicant, and that the Applicants' Supervisors should prepare evaluations on each Applicant. Neither procedure was followed in this case. In addition,,the interview marking scheme still leaves a great deal to be desired. Applicants .should be marked at the conclusion of each interview and not at the end of all interviews as was the case.in this instance. This Board is of the opinion that it is somewhat unrealistic to award the superior Applicant a perfect score in each category, at this. procedure tends to accentuate the total mark differential between the successful Applicant and all other Applicants. In spite of these concerns, the Board is of the view that the procedures followed by the Selection Board were adequate . in the circumstances to permit a fair competition. This Board agreed with the comments of Vice:Chairman Jolliffe in his interpretation of Article 4.3 in ke Saras 139/79 that the proper test must always be related to the requirements of the position to be filled. This .Board is of the opinion that - 17 - those tests were adequately applied in the instant case. Accordingly, this grievance is denied. DATED at Brantford, Ontario this 20th day of November, 1981. . CT=- #I(--& L W. R. L. Verity, Q.C. Vice-Chairman "Dissent to follow" Ms. M. M. Perrin Member 605/80 ONTARIO ?USLIC SERVICZ 3lPLOYXZS UNION - and - THE CROWN IN RIGHT OF ONTARIO XINISTRY OF TRANSPORTATION AND COW!X?ICATION GRIPVANCE OF .M;IRCEL LZBPZXN DISSENT I eissent iron the Xajosity .;wa=Z.. ::ith ali di12 rss?ecr t0 ihe Chairman, the issues outlined on ?age 2 25 the Awart are considered in the wrong sequence. The first issue to be .&tP-rnix2d is: . Was tne seiect2on process tiefective? if the process iS defeczive, although not seriously, then i,i.e sec0r.d issue my be ad&esset. . , Page 2 - Grievance of Parcel Lebreton - Dissent committee's data, to determine whether the grievor's and ixum- bent's qualifications and ability were relatively equal. The present Board has not utilized such a process to overcome the subjectivity of the orocedure noted by the Chairman at ?age 14 - (although this Board could,not Ln reality do so: and the reasons for s:ch inabilit:: wiii beco%e soparer.= below). The "interview marking scheme" is totally unacceptable. it aore thah "leaves a great deai to be desirek" i?aqe lS> . AS noted on ?aSe 12, the person who answered each ,guestion "best" (the incmbent according to the selection board) was giveh a oerfect score. Other candidates were then scored in relation to the incuabent's "perfect" score. .3. standardized set of objective Page 3 - Grievance of Marcel Lebreton - Dissent It is submit ted that the selection procedure in the case at hand is seriously defective, and therefore, this Board cannot adequately address the second issue: whether the grievor's qualifications and ability are relatively equal to those of the incumbent. This member would refer the competition back to the Xinistry, with the directi on that the incumbent's experience in the interim not be a consideration. Dated at Toronto, Ontario, 92s 2nd day of December, 1981.