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HomeMy WebLinkAbout1982-0483.Simmons.83-01-27I 483/82 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Albert Simmons) - And - Grievor The Crown in Right of Ontario (Ministry of Government Services) Employer Before: R.H. McLaren Vice Chairman F.D. Collom Member E.R. O'Kelly Member For the Grievor: N.A. Luczay Grievance Officer Ontario Public Service'EmployeesUnion For the Employer: A.R. Rae Manager, Staff Relations Ministry of Government Services Hearing: January 11, 1983 ? 2 - AWARD A position of Carpenter Foreman was posted as being vacant on August 10, 1982. Mr. Albert Simmons made application for the position. He was one of the unsuccessful candidates and grieves the decision not to promote him to the position of Carpenter Foreman alleging a violation of Article 4 of the Collective Agreement. Mr. Simmons received his basic training as a carpenter working in the West Indies for the Mustique Development Company on the Island of Mustique. Follow- ing immigration to Canada he worked for the Robert Simpson Company as a carpenter for a period of one year after which he worked for twelve years with the Fraser Construction Company. He did a variety of carpentry and construction type jobs during that employment and was a foreman for a good portion of his employment with the company. Unfortunately for him the company lost its principal owner and the primary customer which was I.B.M. Canada when it moved its work to Quebec. He was, therefore, obliged to find alternate employment and joined the Ministry as a carpenter in November of 1980. He performed his duties as a carpenter satisfactorily. - 3 - The Grievor's foreman became ill and it became necessary to appoint an acting foreman. Mr. Menezes, the Manager of construction at Queen's Park region, asked 'his subordinates who they thought ought to be appointed on an acting basis. abased upon experience and in the case of the first two persons length of employment with the Ministry, Mr. Menezes asked in turn each of the three suggested persons. The first two people did not want to take on the responsibility of being acting carpenter foreman. The third person was the Grievor,Mr. Simmons, who willingly,accepted the position of acting foreman. He then proceeded to fill that position on a continuous basis from September 1981 through to March 15, 1982. There was a period of seven weeks during which the Grievor was ill and on vacation when Mr. Cottreau, the successful applicant, filled in as foreman while the Grievor was away. In mid-March of 1982 the regular foreman returned to duty although he was not well and was frequently absent. During those absences, Mr. Simmons would act as the Carpenter Foreman Throughout the period,until the regular foreman retired in June of 1982,he supervised the tool crib and effectively acted as the foreman without having the title of such. fie, -4 - therefore, was an acting foreman for a 'period of eight to nine nine months, filling the position for which the vacancy was subsequently posted on August 10, 1982. The successful applicant, Mr. Cottreau, is a much younger man, than the Grievor but had been employed by the Ministry for a considerably longer period of time. He was, therefore, the more senior of these two applicants.~ However, he clearly.had considerably less experience working as a foreman and in the construc- tion industry. The successful applicant was a journeyman and .in that aspect had equivalent qualifications to that of the Grievor. After the retirement of the :egular foreman. in June of,l982, Mr. Cottreau was asked to be the acting Carpenter Foreman, for reasons which are not entirely clear, until the position was filled on a regular basis following a job posting. His experience, therefore, as an acting foreman in the posted position runs to some three months counting the period during which the Grievor was absent due to illness and vacation and the period of approximately 6 weeks following the.retirement of the regular foreman. -5- The Grievor took exceotion to the actions of the Ministry in taking him out of the acting Carpenter Foreman position and putting Mr. Cottreau into that position prior to the job posting. He draws inferences based upon his conversation with Mr. iiienezes who told him of this decision and alleges that the incumbent foreman of Mr. Whitmore, the construction supervisor, or someone in personnel wrote letters to Mr. Menezes which resulted in the Grievor not continuing in the position of acting Carpenter Foreman. Mr. Menezes explains the decision in his testimony; "We received a complaint saying there should be a rotation in position so as to give others a chance". Mr. Xenezes denies that he ever received any letter from anyone but confirms that there was a telephone call and, on the advice of his subordinates, chose Mr. Cottreau to commence acting as the fill-in candidate for the position in place of Mr. Simmons. If one stops at this point in the narrative of the facts, the seeds of this dispute were sown at this point. The Grievor has a long and varied history of working as a carpenter and as a foreman in work unrelated to that of the Ministry. He was placed -6- in the position of acting Carpenter Foreman and'no doubt had some expec~tations that when the regular foreman retired he would become the regular foreman. When the switch in acting foreman was made in June of 1982 following the retirement of the regular foreman, it has the appearance oft a scheme to get the Griever Out of the position and give Mr.. Cottreau enough experience so that he might qualify.for the subsequent job posting which occurred in August. The Ministry was free to have made the change which it did and the Grievor can make no complaint about that under the terms of the Collective Agreement. He can, as he did, draw negative inferences from'the way in which he was told that he would not longer be acting foreman and the way subsequent events unfolded. It is this Board'-s view that the inferences which he has drawn are unfounded but nevertheless they understand how the Grievor could have gained an impression of bias or lack of objectivity in the final selection process. Following the job posting on August 10, 1982 four employees made application for the position of Carpenter Foreman. An interview panel was set up - 7 - consisting of Mr. Menezes who replaced Stan Whitmore, the construction superintendent, because he was going to retire two weeks after the interviews; the other panel members were Mr. Forbes the construction. superintendent and Mr. P. Fitzgerald, a Ministry personnel officer. A list of questions was drawn up by Mr. Forbes, Exhibit "F", with some questions added by Mr. Menezes. This list of questions was asked of each'candidate during his interview which took 30 to 40 minutes. The questions were used to assist the committee in rating each of the candidates against the 8 factors set out in the Supervisory Rating Manual (Exhibit "H"). The list of questions was used exclusively to score the candidates for the fourth factor but was used in some fashion to assist in scoring the sixth factor entitled "Reasoning Ability". In evaluating the other factors the committee arrived at a consensus deter- mination of each person's score for each category. In totalling up the values assigned to each applicant for the factors frcm 1 to 8, Mr. Cottreau scored 569 points and Mr. Simmons 438 with the remaining two candidates being considerably lower than the .f-irst two (Exhibit "G"). As a result the committee .~ . . - 8 - i determined to award the position to Mr. Cottreau and he was confirmed in the position of Carpenter Foreman. It is as a result of this action that the Grievor brings the present grievance alleging a violation of Article 4. Throughout his testimony he made a number of assertions which would lead to the inference that the process was less than objective and that Mr. Cottreau was favoured in the selection decision. The Grievor made a number of assertions against Mr. Stan Whitmore, the former construction supervisor, now retired that he favoured Mr. Cottreau and manouvered events in such a way as to ensure that Mr. Cottreau became the foreman. He also asserted that Mr. Cottreau took no instructions from him during the period that he was acting foreman and always took them from Mr. Whitmore. It seems to be this fact from which the Grievor draws a great number of his inferences. Mr. Cottreau was served with notice of these proceedings and was present at them. The Board provided him with the opportunity to question the witnesses and make representations on his own behalf. It became evident through the questioning by Mr. Cottreau that the normal duty assignments in the -9- particular division would not have involved Mr. Cottreau in receiving directions from the foreman. While this seems to be somewhat irrational in that the Carpenter Foreman would not know what the three men reporting to Mr. Whitmore were doing or what their workload was, it nevertheless seems to have been the normal practice to operate in this fashion. Mr. Simmons seems to draw more out of this situation than is actually substantiated in fact before the Board. His other testimony related to the selection process being biased or lacking objectivity is similarly based on his assertions without corroborating evidence. It is the position of the Union that the Griever is better qualified and therefore seniority should not have been used to fill the vacancy pursuant to Article 4. It was further alleged that the inter- viewing panel may have been bias in favour of the successful applicant and lack the objectivity necessary to arrive at a fair decision. The relevant provision of the Collective Agreement reads as follows: ARTICLE 4 - POSTING AND FILLING OF VACANCIES OR NEW POSITIONS >. . . - 10 - i Dosilion is cieaied in the aaigaining unit. it shall be advertised ior at least live (5) working days prior to me est.?blished closing date when adver- tiSedwilhlnaministry,orit~nall beadvertisedfor at lea51 ten (10) working days prior to the estab- lished closing date when advertised service-wide. All applications will.be acknowledged. Where Practicable,,notice 01 vacancies shall be posted on bulletin boards. 4.2 The notice 01 vacancy Shall stale, where ap, plicable, the nature and title 01 position, salary, qualifications required, the hours-Ol.wOrk schedule as se1 Out in Article 7, Hours of Work. and the area in which the position exists. 4.3 In filling a vacancy, the Employer shall give primary consideration to qualifications and abili. tyto petlarmthetequired dutieS.WherequalifiC~ tions and ability are relatively equal. length Of continuwS service shall be a consideration. 4.4 An applicant who is invited to attend an interview within the civil service shall be granted time 011 with no loss of p2y and with no loss 01 credits to attend the interview. provided that the time oft does not unduly interfere with operating re. q”iWme”tS. It is the position of the Employer that the job which was advertised in the job posting matched the job specifications. No particular candidate was given any unfair advantage and a procedure was used which would result in a,fair and objective determination of who should be the successful candidate. The first argument of the Union is that Mr. Simmons is better qualified to do the job. In making this argument the Union relies upon the testimony of Mr. Simmons and the various Exhibits filed before the Board. Mr. Cottreau was not called as a witness and the only information the Board has about him is his i -’ 11 - application for employment, Exhibit "D". The Board is satisfied that the Grievor is a capable and competent employee who fulfilled his role as acting Carpenter Foreman in a satisfactory fashion. There is, however, insufficient evidence before the Board for it to make any judgment that the Grievor is a better qualified candidate than the successful applicant. There is no question that the Grievor has a much l,onger : and varied experience and background than the successful applicant. However, it apparently appeared to the interviewing panel, that Mr. Cottreau may have more skills as a foreman than the Grievor. That is not to say that the Grievor has no skills as a foreman but merely that Mr. Cottreau may have more. However, the primary difficulty in the Board making the judgment about Mr. Simmons being the better qualified applicant is the lack of detailed information to make the comparison and thereby make the determination that he is a better qualified candidate. On this point the Board must, therefore, conclude that the candidates must have been considered by the interview panel to be relatively equal in ability and, therefore, seniority in the form of service with the Ministry ought to govern as required by Article 4 of the Collective '- 12 - I Agreement. That being the case the successful candidate ought to have been Mr. Cottreau. The other argument made by the Union on behalf of the Grievor is based upon the process of selection being defective. It is the Board's view that while the process was not a perfect one,it was not so flawed as to say that it was defective. There is also no evidence to substantiate the assertion by the Grievor that the process or the interviewing board were biased against him or had pre-determined who was to be the successful candidate. It is the argument of the Union that the pertinent facts were not before the interviewing panel because the personnel files of the applicants were not consulted nor were their direct supervisors nor :iere the application forms. The Board finds no deficiency in this respect. As evidenced by .the Grievor's ac?lication, that was available to the board as Exh.ibit "E", each applicant prepared an application of some detail ~fcr the position. Although the personnel files were not ccnsuited there would~appear to be little pertinent information vhich.would have- been made available that was not otherwise in th'e candidate's application form or known to the interviewing panel. Furthermore, although the - 13 - ! direct supervisor in the form of Mr. Whitmore was not on the interviewing panel the next senior supervisor, Mr. Forbes, was on the panel as was the next highest supervisor in the hierarchy. Mr. Forbes had some direct knowledge of the candidates while Mr. Henezes had a more limited range of knowledge of the candidates. In view of the allegations of the Grievor against Mr. Whitmore it is not reasonable as being within the range of complaints by the Union about the process to assert that he was not contacted by the interview panel in respect of the decision. By the testimony of Mr. uenezes , Mr. Whitmore played no role in the preparation of the questions,the interviewing of candidates or the determination of the successful applicant. That being the case, and Mr. Simmons having no direct knowledge to the contrary, the Board does not accept his assertions that Mr. Whitmore manoeuvred events. Furthermore, it does not find that there was a lack of sufficient pertinent facts for the interview panel to make an appropriate decision. The remainder of the process involved the use of the same questions and the scoring of the questions and then the arriving at a consensus evaulation of each candidate's ability in respect of the 8 factors listed in Exhibit "H". The process . - 14 - i. which was followed was the same for every candidate and cannot be asserted to have been defective. It could have been more extensive in terms of the time spent interviewing each candidate. It could have been more complete in that written records of the proceedings could have been kept. These deficiencies, however, do not go so far as to lead this Board to conclude that there was a major fault in the selection process. The evaluation of the candidates was of necessity a subjective process but one which seems to have been carried out with the integrity and objectivity necessary to arrive at a fair decision. While any candidate may quarrel with the subjective assessment of the panel members individually or collectively, that of itself does not mean that the process is defective. The Board, therefore, does not find that there was any defect of a nature which was so substantial as to result in the process of selection being unfair ore lacking in objectivity. That being the case there can be no issue as to whether this Board ought to require the selection process to be undertaken again or for this Board to insert the Grievor in the position over that of the successful applicant. Therefore, these arguments of the Union are .left unanswered in this decision. - 15 - For all of the foregoing reasons, the actions of the Employer are found to be in a&ordance with the Collective Agreemenk and the Grievance iS: dismissed. January, DATED at London, Ontario this 21th day of 1983. Chairman 6:3210 6:2310 -.