Loading...
HomeMy WebLinkAbout1982-0298.Melvin.84-08-23’ GRIEVANCE I sETTfEMENT 298/82 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (J. R. Melvin) - and - Grievor The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer Before: K. P. Swan Vice Chairman B. Switzman Member D. B. Middleton Member For the Grievor: L. Stevens Grievance Officer Grievance SeCtiOn Ontario Public Service Employees Union For the Employer: H. J. Laing, Counsel Crown Law Office Civil Ministry of the Attorney General Hearing: December 16, 1982 -2- The present grievance results from the posting, on February 1, 1982, of a job entitled Pool Operator, classified as Heavy Equipment Operator 3 (H.E.0.#3). The grievor, Mr. J. Il. Melvin, was an unsuccessful applicant for the position. There is no doubt that he has considerably more. seniority than the successful applicant; the only question is whether the relative qualifications of the two employees were correctly assessed by the employer.. The provision of the Collective Agreement applicable to this competition is 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 arbitration does not require any extensive reiteration of what Article 4.3 means; that clause hasp been dealt with on a number of occasions by the Board, and .is a relatively straight forward “competition” clause in which seniority is used to decide which of two candidates, relatively equal in qualifications and ability, is entitled to the job. The problem in the present case is that a very difficult fact Situation .raises questions of what qualifications are really required for the work under consideration. The job duties are described in the job posting (Exhibit 2) as follows: The successful candidate will be required, to dperate and maintain within District boundaries units of pool equipment such as eductor, sweeper, large grader, etc. During the winter maintenance season you will be assigned to a Patrol to drive a 5-6 Ton truck equipped with plow and wing. General labouring duties as required. The qualifications required are divided into certain requirements which a candidate must have and others which a candidate should have. The “must haves” are as follows: -Must have a current Class “D” Driver’s Permit with an acceptable driving record. -3- -MUSt successfully complete the Ministry’s Equipment Operation Maintenance Tests. -Must have several years experience in the operation of heavy equipment used in highway maintenance including snowplow. The “should haves” listed are as follows: -Good health and physical condition. -Ability to maintain records. -Ability to follow verbal and written instructions with a minimum of supervision. -Basic knowledge of Highway Maintenance Operations. -Knowledge of Equipment Maintenance & repairs. The two candidates who are under consideration for them purposes of this job are both obviously qualified to perform the work. Both of’ them began work for the Ministry of Transportation and Communications in 1964; but their careers followed somewhat different paths. The successful candidate, Mr. R. E. Thompson, worked for 3 or 4 years from 1964 as a Landscape Crewman, operating a wide variety of equipment and performing a variety of tasks. He subsequently became an H.E.O.#3 operating a zone striper truck, a vehicle designed for painting markings along highways. On a relief basis, he also worked on other vehicles in addition. Since the zone striper job was a summer job only, he also operated a snowplow on Highway 401 during the winter. In 1974, he went into his own private business for a time, after which he worked as a truck driver in construction for some years. He returned to the lMinistry as a seasonal employee in 1980, and then returned to the full-time staff on November 16,198O. The grievor, Mr. 3. R. Melvin, has worked continuously since April 16, 1964 for the Ministry, and as a heavy equipment operator since 1965. He has been in the H.E.0.#3 classification since 1976, in a position entitled Patrol Operator “8”. -4- As we have already pointed out, there is simply no doubt that both of these employees were fully qualified to do the Pool Operator “8” job. Mr. Thompson, as the successful applicant, had performed it with no difficulty for some time before the date of thf: hearing. The grievor, as a Patrol Operator “B”, performs a job in the same classification and with a position specification which is remarkably like the position specification for the contested job. Indeed, a comparison of the two position specifications (Exhibits 3 & 41, reveals a few differences, but only of detail, between the two jobs. Put simply, the jobs appear to be different only in that the Patrol Operator job takes place within a patrol area, while the Pool Operator job requires work to be done over the entire District. There are differences in the equipment used in the two jobs, but there is no suggestion that any employee skilled at the Patrol Operator job could not quickly master the equipment involved in~the Pool Operator job., Indeed, the major piece of equipment for Mr. Thompson’s duties is an eductor, a suction device for cleaning out drains, mounted on a truck. The grievor had operated such a vehicle on relief prior to the competition; Mr. Thompson had.never operated one but was able to do so with only a ~brief period of orientation. AgainQ this background, we turn to the details of the competition and the reasons advanced by the members of management involved in the selection for choosing the successful candidate over the grievor. In this regard, the reasons given in denying the grievance, set out in a letter from Mr. M. 3, MacMaster, District Engineer, to the grievor dated May 18, 1982, are of interest: The Panel, after checking the job description for the positidn of Pool Operator “B”, developed a selection criteria considered most appropriate in view of the demands of the job, as outlined in the competition notice and formed~questions based on the chosen criteria. These same questions were asked of each applicant and answers were ~scored based on a pre-determined marking scheme. -5- In the area of Management Skill you and the successful candidate received 8 and 10 points respectively. In Technical Skills your mark was 22 while that of the successful candidate was 39. A review of personnel files was carried out and the total personnel record of each applicant, such as Employee Appraisals, Supervisor’s Letters, etc., was available for consideration. A current assessment by immediate supervisors concerning job performance was also available. This total process resulted in the unanimous recommendation of the Board in favour of Mr. Thompson. According to the evidence before us, this review accurately sets out the Employer’s selection process. A committee comprised of the District Personnel Supervisor; the Maintenance Supervisor and the Area Patrol Supervisor was-struck, and that committee was in charge of the complete competition. Following a review of the position specification, .the committee decided to prepare a list of questions, and to interview the four candidates who appeared to be able to meet the basic qualifications for the job. No driving test was a part of the competition itself, although both of the two employees involved had current ‘driving qualifications which had required testing on very similar vehicles. The main part of the competition revolved around the interview, at which each candidate was asked the same list of questions and their responses were scored by the committee. ‘In addition to that process, recommendations were solicited from current supervisors, and personnel files were reviewed. we will take these factors into consideration one at a time. Part of the Union’s case is based upon the fact that the grievor was capable of operating the eductor truck from past experience, while Mr. Thompson had never had the opportunity to operate that vehicle. The Union argues, therefore, that a practical test on the very equipment to be operated would have placed the grievor in an obvious position of advantage. -6- While this may seem to be a correct submission on its face, we have come to the conclusion that the absence of any practical test on the equipment to be operated really makes no difference to this case. Both of the employees were very experienced with vehicles of the size and weight of the vehicles to be operated, Andy both had shown considerable adaptability over the years by being able to operate other equipment on relief or otherwise as requested. Mr. Thompson had, in fact, operated a sweeper truck on relief in the past and that is also one of the vehicles which is operated from time to time by H.E.O.illYs in the Pool Operator position. It seems likely to us that, once either employee was given sufficient time to become familiar with equipment which he had not operated before, it would be very likely that they would be both equally ‘able to operate the vehicles.from ‘a strictly mechanical standpoint. The written test suffers from the difficulties that all such documents invariably have unless they are prepared by someone who is both expert in the job to be performed and an expert in testing procedures as well. The test is divided into two parts, management skills and technical skills, and the committee apparently decided to’place the heaviest weight on the latter, since they quite frankly acknowledged they were looking for an operator and not a supervisor, and that the paperwork and organizational e!ements of the job were relatively straight forward. In fact, the two employees were quite close together on the management skills; it is in the technical skills’area that their scores on the interview diverge widely. On two questions they had equal scores, so these can be left out of consideration. On the other hand, some of the other test results must be looked at rather more carefully. The first two questions, for example, are “What equipment have you operated?” and “What M.T.C. equipment have you operated?“. Because the numbers seem to have been -7- changed in the middle of the process, it is not perfectly clear in what order the scores given on Exhibit 16 were actually assigned, but it appears that Mr. Thompson received full &rks (10 points) for each question, while the griwor received five @.nts and two p3int.s respectively. It is true that Mr. lhompson has a s-hat broader experience of heavy vehicles than does the grievor, almost all of which was gained during his yearsworking outside the Ministry. It might therefore be reasonable to expect a somewhat higher mark on the general question for or. Thompson, but on the evidence before us, there seems to be si&y no reason whatsoever why he muld have been assigned a mark tiich was either five times or twice the grievor's mark for 0peratingMITegui~t. There is simply nothing in his work record nor even on the face of the application form which indicates that he has experience on M?X eguipnent SO much broader than the griever's, and it is, in fact, difficult to see any difference between their experience in this regard. On question number 4, candidates are asked if they have ever operated a sweeper truck, an eductor truck or a grader, and how long. Three marks are given for each answer. The evidence is clear, as are the two application forms of the two employees, that ,both of them have operated graders but that Mr. Thompson had not operated an eductor and the griever had not operated a sweeper at the time of the competition. Nevertheless, ,\,llr. Thompson received six points while tne griever onl) received four. The employer’s witnesses were only able to explain this by saying that it usas not the substance of the answer that counted but rather how it was answered. It will be obvious from our treatment of the interview process that we do not think very much of the test and the sway it was -a- administered. Ms. Laing, counsel for the ministry, charitably described the’ interview procedure as an attempt to meet the various requirements placed on the Ministry by the earlier Grievance Settlement Board decisions to which we have already referred, and suggested that its flaws were merely- understandable imperfections in what was of necessity a difficult and inexact process. We do not think for a moment that there was any bad faith in the way the test was drawn up or in the way it was administered, and we are fully prepared to accept that this was intended to be a fair test of the qualifications of individuals for the job. Nevertheless, we think that we are required to find that the test does not make it possible to demonstrate any significant difference in qualifications or ability between the grievor and Mr. Thompson so as to defeat an otherwise obvious inference that they were relatively equally qualified, given the kind of work in which they had both been engaged for so long and its similarity to the job posted. We turn, therefore, to the third aspect of the competition process, the consideration of the employment record of each employee and the soliciting of current assessments by supervisors. In geneial, both employees are well regarded by their supervisors and have clear records. The exceptions to this general statement are found in the griever’s work record, which includes appraisals by supervisors on two occasions raising concerns about his attitude and suggesting the necessity for improvement. There is also a specific complaint Seth out in a memorandum dated January 25, 1982 (Exhibit 8). There is no need to go into the details of the latter memorandum, except to note that concerns were raised about record keeping, reporting of times in and out, and specific technical and organizational faults relating to the grievor’s activities as Night Patrolman on three separate occasions in the month of January. -9- The timing of this particular communication was unfortunate, since it came immediately before the competition, and the next opportunity to see if it had produced an improvement in performance and attitude was a performance evaluation made opt in the spring of 1982 after the competition was completed. In fact, the evidence is that the grievor did improve quite considerably in the interim. The question before us, having dealt with all of the preliminary matters, thus resolves to whether or not the employer may distinguish between these two employees, so as to find them not relatively equal, on the basis of the employment records of these employees alone. We have no doubt whatsoever that an employee% record may reasonably be considered by his supervisors as a part of the evidence available to test his “qualifications and ability”. While there may be some aspects of a personal record which would have no bearing whatsoever on some kinds of posted vacancies, where there is direct relevance demonstrable between the duties to be performed and the details of the past record, that consideration is a perfectly fair one. Once again, while either the passage of a considerable of time or any specific provisions in the Collective Agreement relating to the .expunging of material from an employee’s record may make it impossible for an employer to use stale complaints about an employee’s conduct or progress, it:seems to us that relatively up- to-date appraisals and current assessments of an employee’s capacities are perfectly acceptable as evidence of qualifications and ability. In the present case, the Employer argues that the Pool Operator job is much more dependent of supervision than is the Patrol Operator job, and although there was some attempt by the Union to deny this, we think that is indeed correct of the two positions. The Pool Operator travels -IO- broadly through the District, and is in charge of his own travel expense allowances as web as a substantial part of his own work scheduling; the Patrol Operator, while he may actually have some supervisory and organizational duties to perform in respect of lower classified employees doing similar work, works out of a fixed offic;e and is subject to ongoing supervision. That is not, however, the only aspect of the Pool Operator job that should raise concerns. All of these jobs are highway driving jobs, involving the operation of heavy equipment, sometimes in circumstances where a danger to the public or to the employees can be anticipated. The employer is therefore entitled to take into account any evidence which tends to show an employee’s reliability and attitude towards his work. In our view, there was such evidence available to the employer in respect to these two employees, and it clearly showed that the grievor was the cause of some concern for his supervisors, not only immediately before the competition, but on other occasions in the past as well. That is not to say that he was not fully capable of carrying out his duties in the Patrol Operator position, for he obviously did so for quite some period of time. It is equally probable.that he would have been able to carry out his duties in the Pool Operator position as well, but that is not what the Collective Agreement requires the Employer, and by extension this Board, to consider. The Collective Agreement requires a comparison of the qualifications and abilities of ,the employees, not merely an assessinent of minimum qualifications to perform the work. When the comparison is made in this case, it is obvious that the Employer had cause to be concerned about the griever, but no cause to be similarly concerned about the successful applicant, in respect of the critical qualification of reliability. We recognize that this means that for a few lapses in his conduct the grievor is denied the benefit of his very considerable - II - superiority in seniority. Once again, however, the Collective Agreement requires that seniority not be considered at all until a situation of relative equality has been demonstrated. If the candidates are relatively equal, even a day’s seniority would entitle the senior employee to take the job; if they are not relatively equal, the better qualified employee will get the job regardless of even the grossest inequality of seniority. We therefore find that, while the process adopted by the employer was fair insofar as it was honestly and evenhandedly conceived and administered, the test used involved such serious flaws as to make it useless as a guide to the relative qualifications of the two employees concerned. On the other hand, we think that the second factor invoked by the Employer, the past records of the two employees and the legitimate concerns thus raised for the griever’s reliability in circumstances where he would be asked to work alone, could justify the Employer’s finding that Mr. Thompson was better qualified for the job. To be perfectly clear, we do not think that the evidence reveals that the grievor was unreliable. All that it shows is that, on the best evidence available to the Employer and to this Board, Mr. Thompson’s reliability appeared to be better than the griever’s to a sufficient extent to keep the Employer, or us, from finding that the two employees were relatively equal. As we have said, we have not found coming to this conclusion particularly easy. We have very serious concerns about the way in which the employer uses tests in such competitions, and we feel obliged to suggest that if they are to be a feature of competitions in the future they should be devised so as to eliminate the kind of subjectivity and grading errors that obviously affected the validity of this test. We are also of the view that there can be no blanket policy by the Employer to deprive employees of posted jobs merely because of flaws in the employee’s , - 12- personnel record; in each case, there will have to be a demonstrtion that the particular flaw in the record is relevant to the actual qualifications needed for the’ present job. Nevertheless, on the basis of all of the factors considered above, we think that the Employer’s choice ought not to be disturbed, and that the grievance therefore ought to be denied. DATED at Toronto, Ontario, this 23rd day of ?utqust , 1984. K.,P. Swan, Vice Chairman B. Switzman, Member /ch D. B. Middleton, Member