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HomeMy WebLinkAbout1982-0113.Bulien.82-08-03..~. IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: * Before: , OPSEU. (Ian G.’ Bullen) and Grievot The Crown in Right of Ontario (Ministry of Transportation and Communications) EmpIoyer Pr0f.J.W. Samuels Vice Chairman Prof. T. Traves Member Mr. D.B. Middleton Member For the Grievor: IMr. C. Richar&,Grievance/Cksification Officer Ontario Public Service Employees Union For the Employer: Mr. N. Pettifor, Staff Relations Supervisor Ministry of Transportation and Communications Hearings: lune I & 2, and July 19, 1982 The grievor is a Technician 4, and claims that he should have been the successful candidate in a promotional competition for the position of Engineering Materials Technician, which is classified as Technician 5, Physical Laboratory (Atypical), in the Engineering Materials, Office, Soils and Aggregate Section of the Ministry of Transportation and Communications. The job was described as follows in the.posting: THE JOB: To conduct independently or as a member of a professional team, special projects in the area of soils and aggregates related to problem solving, product, process or system evaluation, including the planning and co-ordination of various programs, establishing the effect and scope of the project and detailing the methodology to be used. Other areas of responsibility require the provision of expertise in the conduct of special investigations/ tests, the compilation and analysis of data for inclusion in reports and the preparation of materials for lecturing. THE CANDIDATE: Must have: (11 Progressively responsible experience in and a thorough knowledge of soils and aggregates as used in, highway construction and maintenance. (2) Some knowledge of field testing and laboratory techniques, equipment and procedures. Should have: (a) Good organizing, problem solving and decision making skills. (b) Good knowledge of appropriate de~sign construction and maintenance procedures. (c) Ability to operate specialized and sensitive testing and monitoring equipment. (d) Good communication skills, oral and written. NOTE: WILLINGNESS TO TRAVEL AND WORK THROUGHOUT THE PROVINCE PERIODICALLY. - - \ The Position Specification reads as follows: SUMMARY OF DUTIES AND BESPONSIBILITIES (1) Plans, organizes and coordinates, or assists the Engineer in, assigned investigational projects by performing tasks such as: - discussing the projects with supervisor and other Ministry staff to acquire a full under- standing of the requirements for the project - researching records on the project sites and summarizing the information, e.g. data on soils and aggregates sources, test results, unusual features, when used, problems encountered 30%, - preparing a program of investigation in accor- dance with priorities and requirements e.g. selects date, arranges for staff and equipment; prepares reporting forms - establishing the extent and scope of the investigational program - detailing the methodology to be used (2) Conducts field tests by performing tasks such as: - organizing the equipment and personnel for work. - visiting thesite and/or installing the instru- mentation, if required - ensuring that the equipment or installation is in proper working order 25% - calibrating or arranging to calibrate the .equipment or installation; recalibrating, if necessary, based on .his own decision - operating the equipment or installation and moving it from one site to another, if required' - carrying out the test in accordance with test procedure - assessing the data as it is collected and adjusting the program and procedures on his own by using his judgement to ensure that suitable data is being obtained for subsequent analysis - taking samples, photographs or other evidence necessary for evaluation and analysis - maintaining a complete record of all readings, observations and other required information for further processing. Judgement and decision is required in obtaining relevent (sic) and complete information, otherwise further analysis will be invalidated - ensuring that calibration and adjustments are maintained at all times and taking remedial action on this own - arranging for special measures to be taken or lab tests to be conducted - maintaining and repairing the equipment (3). Prepares or assists the Engineer in preparing reports 'for the Senior Regional and Read Office Staff by performing tasks such as: - assembling, compiling and summarizing results and other information in an acceptable form for analysis and examination - analyzing data and drawing conclusions from it - performing statistical and correlation analyses using the data and other relevent (sic) para- meters by means of computer or progFWable calculator - 25% - recommending introduction of changes or improve- ments in the equipment, product or technique, e.g. be aware of technological changes by keeping in touch with outside agencies and the industry .and implement these changes - recommending further investigations when results are insufficiently conclusive or otherwise unwarranted - preparing or assisting the Engineer in the ' preparation of periodic reports containing results, conslusions (sic) and recommendations - (4) Provides technical expertise to the Regions, Head Office, municipal and other agencies by: - providing appropriate data, information and recommendations necessary to aid in decisioning of related problems - attending meetings and seminars to lecture or make presentations 15% - giving training to other internal staff, e.g. workshop on statistics as applied to quality assurance given to Regional inspectors; lectures on new procedures in quality ass.urance given at M.T.C. training courses (M.T.C. staff and Municipal courses) - acting as coordinator of technical training courses - reviewing technical publications and materials (5) Performs other related duties such as: - assisting or collaborating with the Engineer 5% in the preparations of reports and papers for technical submissions at seminars and conferences etc. - as assigned. SKILLS AND KNOWLEDGE REQUIRED TO PERFORM THE worn Demonstrated experience in and a thorough knowledge of soils and aggregates as used in highway construction and maintenance and associated construction standards and specifications. Intimate knowledge of field testing techniques and equipment and manual dexterity to operate specialized and sensitive equipment. Familiarity with pertinent laboratory testing techniques , procedures and equipment. Good knowledge of appropriate design, construction and maintenance procedures and practices. Demonstrated ability to: Independently and competently recommend cost effective solution to problems; inde- pendently plan, organize and perform investigations, often involving other staff: effectively communicate both orally and in writing; effectively represent the office within the Min.istry and outside; effectively lecture and instruct. The specialized knowledge and skills are acquired through successful completion of appropriate internal and/or' external courses or graduation from appropriate engineering technology college and through progressively responsible experience in engineering materials and associated areas. Willing to travel and work in the field. There were eleven applicants, and five made it through the initial screening to the interview. The two candidates at the interview, who were more senior than the grievor, scored the lowest at the interviews. The grievor scored second highest, and he is more senior than the successful candidate, Mr. K. Ganesh, who scored the highest. It is the grievor's position that he is relatively equal in qualifications and ability forthe job in question, and therefore his greater seniority should give him the job. We met for three full days to hear extensive testimony, and receive extensive documentation on the interview~process and the qualifications and ability of the two men. The list of exhibits appended to this award attests tb the documentation we received. The successful candidate was at the hearings throughout ,and par- ticipated vigorously. After a very careful review of all of this evidence, it would appear that there is little real conflict in - the truly relevant matters, and that it would be best to relate the evidence only in brief so as not to confuse the real issues I here, which are matters of principle rather than evidence. In short, the important facts are: 1. The grievor is more senior than Mr. Ganesh. 2. Both employees have excellent work records, parti- cularly in the last few years. They have wide experience as technicians in the lab and, to a lesser extent, in the field. It is not necessary to relate their work experience in great detail. In sum, they have both demonstrated great compe- tence. Mr. Bullen has more experience in minor supervisory, roles. 3. The grievor has made some effort to upgrade his academic qualifications, but not nearly as much effort as Mr. Ganesh. The latter has embarked on a very ambitious program, which has lead to several certificates from the Ontario Association of Certified Engineering Technicians and Technolo- gists, and will give him a B.Sc. in Geology in the fullness of time. To its great credit, the Ministry has supported this effort by allowing Mr. Ganesh to take classes during working hours, and by paying much of. his tuition. 5. 4. The selection panel of three men relied on the scores it assigned collectively by consensus for the answers given to pre-established questions posed by the panel, on the employee records, and on the evaluation of the candidates by Mr. T. Kovich, the Section Head of the Soils and Aggregates Section, who was on the panel. The other two men on the panel had no personal knowledge of the candidates. There'is no doubt that the panel was very impressed by the effort at academic improvement made by Mr. Ganesh. The interview scores were: Ganesh 300, Bullen 245, and 225, 109 and 47 for the "other three candidates. The 109 and 47 were obtained by'persons senior to Mr. Bullen. The panel did not consult supervisors for whomthe candidates had worked directly, and the candidates had not worked directly for Mr. Kovich. It is clear that Mr. Kovich knew Messrs. Ganesh,-and Bullen far. less'than they were known by Mr. C. Rogers, a pro- ' '. fessional geologist and petrographer with the Ministry, and Mr. A. Hanks, the supervisor of the laboratories. The two candidates had worked fo,r years with or under these two men. Neither Mr. Rogers, nor Mr. Banks, was consulted by the selection panel. At our hearing, both men were asked whether Messrs. Bullen and Ganesh were relatively equal in qualifications and ability for the Technician 5 job in question. Both of these supervisors were sufficiently knowledgeable to make an informed comment on this matter. ,Mr. Rogers said that they were relatively equal. Hr. Hanks said that Mr. Bullen was better suited to the position. And these are all the facts that are needed to deal with the matter. The Collective Agreement provides in Article 4. 3: ‘\ 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 consideration. This provision establishes a merit system of.promotion. The selection procedure must ensure that primary consideration be given to quali- fications and ability to perform the required duties. It is the Employer who establishes the selection criteria. Then the selection procedure must be arranged in such a way that adequate information is generated to make a reasonable assessment of the qualifications and ability of the candidates in light of these selection criteria. This Board has dealt at length with this matter in a number of cases. As a basic requirement of an adequate selection process, it has been ,made absolutely clear that the candidates' supervisors ought to be consulted, because the work record is critical with. respect to internal candidates---see Quinn, 9/78; Hoffman, 22/79,; and Leslie, 126/79. Indeed, in these three cases, it was the same Ministry as is involved in this case. It is very hard to understand ' why the Ministry continues to conduct its selection'procedures without paying attention to such,= common-sense point. Mr. Pettifor argued that Article 4.3 does not prescribe a selection procedure. That is true. However, it does prescribe the criteria for judging the adequacy of a selection procedure. The procedure, however~ conducted (eg. with an interview or without an interview), must allow an adequate assessment of relative qualifications and ability, or else the promotion cannot be made in compliance with the article. \ This Board has adopted a line of reasoning which makes good sense and is followed in the private sector. That is, candidates' supervisors ought to be consulted during the selection process. In our case, Mr. Kovich.was clearly not close enough to the candi- P dates to make an adequate~ assessment of their performance.. Messrs. Rogers and Hanks were in a much better position to do this. In sum, the selection procedure was clearly flawed. We also heard much evidence concerning the interview process, and the method of scoring the answers. Suffice it to say that Messrs. Bullen and Ganesh were close enough to be rated as relatively equal, given the nature of the questions, the method of deriving the consensus answers, and the relationship that the questions bore to the characteristics being tested. For example, the candidates needed.to have considerable technical skills. The panel asked.the following questions. to judge the Technical Skills: 0 5) You may be asked to represent the Section on a technical committee charged-with producing a new' specification. Describe the various steps (inputs) required in order to produce such a document. 6) Detailed test data is often presented in various formats in a technical report. Describe two methods of doing this and explain both their advantages and disadvantages. It takes little knowledge of technical skills to know that these two questions do not test technical skills at all. What.do they tell us about the candidates knowledge of and ability'in testing materials, or in any other technical task? Questions 5 and 6 test report-writing skills, if they test anything. Technical skills - iU - are needed to prepare the raw data which will go into the report. The questions offer no evidence of these latter abilities. Questions 7 and 0 were intended to assess Operating Ability and Dexterity: 7) Briefly describe two test procedures in the aggregates area and outline their significance. .8) Describe the difference between a calculator and a mini-computer. _: These questions haven't the remotest relationship to operating ability and~dexterity. How can one judge operating ability and dexterity without observing the candidate actually operating an instrument and demonstrating his dexterity? To illustrate the point vividly, let us assume the candidate knows the answers to the two questions perfectly, but is armless and legless, and has no prosthetic.d,evices; The panel would say this candidate had wonderful operating ability and dexterity! Messrs. Ranks and Rogers had observed both Nrt Bullen and Mr; Ganesh in operation over long periods of time. How could one possibly judge their operating ability and dexterity better than by asking these two I supervisors about the candidates' abilities? Yet this was not done. It is clear that the,interview process too was seriously flawed. However, from the evidence as a whole, it does seem clear that the grievor and Mr. Ganesh were in fact the two best of all the candidates. The question is whether or not they were of relatively equal qualifications and ability for the job in question. We have already seen that the two men best suited to make this judgement are of the opinion that Mr. Bullen is either better suited to this job or the candidates are relatively equal. The only evidence which opposes this view is the considerable academic achievements of Mr. Ganesh. However, .we did not hear any evidence relating his achievements directly to the job in question. Indeed, both Messrs. Hanks and Rogers were asked to direct their minds to this matter, and both agreed that Mr. Ganesh's accomplish- ments did not make him better suited for the job in question. On balance, the evidence supports the view that the men are at least relatively equal in qualifications and ability for - this job. Article 4.3 of the Collective Agreement is very specific on this point. It says that one must judge the candidates on the basis of their qualifications and ability'to perform the required duties'! Higher general educat.ion and achievements are not relevant unless they bear on the job in question. This point is also supported in the jurisprudence -- see Saras, 139/79; and Northern Electric Co. Ltd. and U.A.W., Local 1839 (19771, 14 L.A.C. (2d) 167 (Simmons). 1 , The next issue is the relevance of seniority. Article .. 4.3 provides that where the qualifications and ability are relatively equal, seniority "shall be a consideration". Does this mean that it should govern? There is no doubt that the provision could be drawn with more precision. On the one hand, it can be argued that, if the parties intended seniority to govern, they would have said so. This was the view taken by this Poard in its first consideration of the old Article 4.3 -- see Doherty, 43/76. On the other hand, why mention seniority in this way unless it is to govern? This Board has now let seniority govern in a number of cases involving this. article, and has awarded a position to the most senior person where the qualifications and ability were relatively equal--see Zuibrycki, 100/76; Marks, 566/80; Carrington, 462/80; Lethbridge, 603/80; Chittle, 273/80; and Newburn and Phillips, 485 and 486/81. While seniority may not govern necessarily in all cases where qualifications and ability are relatively equal, seniority till govern unless some overriding consideration suggests some other decision. And this accords with the clear basic intention of the parties. The filling of a vacancy should be done on a merit basis. Where merit is equal, seniority can govern. In conclusion, Messrs. Bullen and Ganesh are relatively equal in qualifications and ability for the job inquestion. There appears to be no other.,candidate who is of-theirquality. 'Phey were the two best candidates for the job. In these circumstances, \ Article 4.3 provides that the senior candidate should be selected unless some overriding consideration suggests some other decision (there appears to be no such consideration here), and we order that Mr. Bullen be given the position immediately. He is to be cornpen- ;\. sated for pay lost as a result of the Ministry's failures to award. the position to him in the competition. And we reserve our juris- diction to determine the amount of compensation if the parties are unable to agree on this matter themselves. Before closing, a word should be said concerning the impact of this case on Mr. Ganesh. We have tried~to make it absolutely clear that the issue before us was the relative quali- fications and ability for the job in question. The evidence shows that Mr. Ganesh is ready for better positions. He has great potential. One can only hope that the Ministry will be able to find him a place better suited to his experience and education. In short, Mr. Ganesh has qualifications and ability over and above what is necessary for the job in question, but these higher quali- fications and ability do not make ,him a better candidate for 'the job in question. . ~ Done a .t 3 /J London, Ontario, this I 1 JiTm. T. Traves, Member Bt;rp 2fi&i(dd D.D. iUiddleton, Member EXHIBITS 1. .2. 3. 4. 5. 6. 7. I a. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. '19. 20. 21: Announcement of competition Position Specification of job in issue Grievor's application Position Specification, grievor's current job Employee Performance Reports, Bullen Successful applicant's application Position Specification, re successful applicant Candidate Rating Form "Materials Information, No. 31" Interview Worksheet (Ganesh) Idem (Bullen) Employee Performance Reports, Ganesh Idem Idem "Staffing Process Workshop" Expected Answers Organization Chart - Soils and Aggregates Section "Lithology of the Beekmantown Group..." "The Effect of Sodium Chloride..." "Tests - Soils and Aggregates" Photographs of aggregate laboratory 22. Position Specif~ication - Aggregates Laboratory Foreman (April 7, 1975) 23. Photographs of petrology laboratory 24. Memorandum concerning Permanent Concrete Quarry 25. Memorandum concerning Search for Further Deposits 26. 23. 28. 29. 30. (. ‘-lS’- ( Record of courses taken by'plr. Ganesh at Ryerson Polytechnical Institute Idem, University of Toronto a, M.T.C. Position Specification, Sr. Research Technician O.A.C.E.T.T. Certificate