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HomeMy WebLinkAbout1982-0505.Ruby and Budnark.87-02-27IN THE HATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOAR0 BETWEEN: OPSEU (B-F. Ruby and L.C. Budnark) Grievers - and - The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer BEFORE: FOR l'Ri? GRIEVORS: FOR THE EMPLOYER: R.a. ltenson Chief Staff Relations Officer Staff Relations Section Human Resources Secretaciac E.E. Palmer, Q.C. T. Kearney G. Peckham Vice-Chairman Member Member A. Ryder, Q.C. Gowling and Henderson Barristers and Solicitors HEARING DATES: : : DECISION The present arbitration arises out of two grievances filed by Messrs. B.F. Ruby and L.G. Budnark on 26 May -1982 and 2 June 1982 respectively. The former merely stated that the gist of his grievance was that: “I grieve the right of promotion to the position of group leader”; while the latter more specifically stated: I grieve that I have been denied the right of promotion to the position of group leader due to an unfair selection process, and that my qualifi- cations and ability are equal co those selected therefore my seniority should be considered. Both grievances requested appropriate relief. These grievances were not settled during the grievance procedure and so form the basis of the present arbitration, hearings in relation to which were held on the dates mentioned above. .It was agreed the Board had jurisdiction to deal with these matters. At this point certain aspects of the case should be noted. First, it was agreed by the parties that certain documentation from a related case should become part of the evidence used in the present matter. This has been done. Second, at the outset of this case there was clarification of the relief sought by the grievers. Basically, this was a w-posting of the job in question due to errors on the part of representatives of the Employer in the original selection of successful applicants for this job. Again, this will appear later in the discussion of rhe arguments put forward by the parties. Before turnir,g to the .evidence ,which vas adduced in this case. . -2- they argued that the nature of the evaluation was flawed. Specifically, they centred their approach on the evaluation of three successful applicants: G.Lascala, H.I.Keitars and R.Z.Klodnicki. As well, it was argued that relevant aspects of the grievers' cases for promot- . ion were improperly denied consideration. Consequently, the Board is of the opinion that it is unnecessary to set out in great detail all the evidence adduced at the hearings in this matter; much of it was both extensive and unnecessary for the resolution of this case. Turning, then, to the evidence produced on behalf of the Union, the first witness called we.8 the griever, Mr. Budnark. Initially, much of his testimony cSent to his individual work record with the Employer and his fitness to perform the job in question. We do not need to deal with this in detail. Quite simply, the issue in this case is not whether, emong other things. Mr. Budnark was entitled to the job in question; the issue is whether he was involved in 'a fair competition. In this regard, it is enough for the Board to note that Mr. Budnark was obviously qualified for consideration in this competition and had more seniority than numbers of other applicants. He had worked for the Employer since 1963 and had giined a great deal of experience in work related to the sought after position. Par example. -3- he stated that in 1979 he had been told'that he would have to gain experience as a Party Chief to qualify for the job in question; he subsequently gained such experi- ence. The griever's testimony regarding the present competition, however, is useful for a resolution of this case. On this point, Mr. Budnark testified as to what he considered the shortcomings of the procedure generally and the specific selection of the three employees mentioned earlier. On the first point, Mr. Budnark made a number of comments. Thus, he contended that the interviewing system used in this matter was deficient in a number of ways. .Thus, he claimed it was given on en extended period of time. The fault he saw in this was that this allowed the possibility that questions asked at this time might become gerieral knowledge; or at least knovn to applicants later inter- viewed. He gave no examples of where this occurred; it was only conjecture. He also claimed that there was no forewarning that such interviews would OCCUl, thus giving the applicants no opportunity to prepare for these meetings. Presumably, such would affect al1 applicants equally. Finally, Mr. Budnark felt the questions asked were unsatisfactory in 3 number of ways. On this point, he claimed the questions fnvoured persons then presently working on certain jobs. Again, -5- The only other witness for the Union, called in rebuttal, was Mr. D. Stewart, who was a Union execut- ive with access to then latter's records. Basically, his testimony related to Mr. Keisars. He concluded that, because Mr. Keizar's name did not appear un Union dues check-off lists which were given to the Union by the Employer, Mr. Keisars was not a member of the bargaining unit and, as such, not eligible to participate in the present competition. The only witness called by- the Employer was Mr.~ J.P.Cullen. Again, his testimony scan be stated succinctly. Thus, initially Hr. Cullen went over his qualifications at some length. He then described the '_ ' development of the job in question. More to the point, he described at length the selection process. Thus, he stated that after the responses to the job posting were received,= screening process was undertaken on the some 79 applicants to determine which met the minimum require- ments for the job. Essentially, this would appear to be an exercise in seeing whether the applicants had taken the necessary courses to be qualified for this job. On this point it was clear that the job was changing rather quickly and, hence, current knowledge for it was imperative from the point of view of the Employer. AS a result of this pt-OCt?SS s *me 50 persons passed this ..,I .~ -6- initial roadblock. Of these, only 48 were interviewed, two declining to go further. The next step in the process, according to Mr. Cullen, was the interview and test. Again, this was described in some detail. He stated ~that a .set of questions first w'ere developed which were later asked Of each applicant. These questions related to three , general areas, being described as relating to the Technical Nodule, the Management Module and the Interper- sonal end Communications nodule. 'The meaning of .these terms was probably somewhat more prosaic than these .terms would suggest. There would appear to be no real value, however, in going into the matter further: one ' can get a general idea of the connotation of these. In any event, Mr. Cullen noted that the ascribed points to these questions numbered 880. Ha testified that the way in which these questions were answered did ( not enter into the final tallying of the results. The test, " It was claitied, was the basis of the decision made in this matter, although somewhat disconcertingly he said that general impressions were taken into account at the end of the process. In the end he still maintained that the final results were determined by the points achieved on these tests. Of the 48 applicants, he stated that Ml-. Eudnark finished 41st and cnr . Ruby 47th. This, of course, accounted for their failura t3 . 7. - 7 - be promoted by the Employer. Mr. Cullen described at great length the way in which the interviews were to be carried out. He sai.d that there were guidelines provided for the way in which questions were to be asked and- marked, although the specifics were somewhat vague. He also stated that the purpose of theses interviews was to determine a number of factors, even though those not relating fo the test were not taken into account. Mr. Cullen also discussed .the..posit~ion of the three other employees already. mentioned- He stated that in all these cases these employees met the minimum qualifications of the. job in question. He did note in this regard that equivalents to stated requirements were accepted in light of established policy of the Employer. On the basis of the foregoing, then, what were the positions of the parties? The first position taken by the Union was that the three named employees - Keizars, Klodnicki and Lascala - did not meat the basic requirements to enter the competition and, therefore, the grievers should have been in competition for these openings. With respect to' Keizars the Union took the position that he was not a valid applicant for a number of reasons. First, they argued that the evidence disclosed that. on -a- , the balance of probabilities, it should be concluded that this man was in a position outside the bargaining unit when the competition was undertaken. Hence, he had no rights under the collective agreement covering the bargaining unit and should be disqualified for this competition: Re Scarborough General Hospital, 26 L.A.C. (2d) 26 (Brent,19801. Second, they argued that the record of this employee did not disclose that he had the basic "mustsw for this job. On this point they urged' that if the case for ,the Employer was that Mr. Keizars had the "equivalent* .of these *musts" such was not satisfactory to meet a requirement of a "must*. In ' any event, it was the position of the Union that the record did not disclose such equivalents. With respect to Mr. Klodnicki, the Union argued that the Board should accept the testimony of the Union witness and conclude that he did not have one of the "must* requirements for this job. Specifically, ha 'had not worked sufficiently long as a Party Chief, being short by some three months from a period of two years. I" a similar vein, the Union argued with respect to Mr. Lascala that his record which could be validly examined did not show that he had th2 basic qualiJications for this job. They claimed that the Employer had looked at other (training) records which ; -9- were used to fill in this deficiency. This, in the opinion of the Union, was an impermissible bending of the rules. The second major thrust of the Union case was to attack the method of evaluation used by the- Employer. The first thrust of this type of argument was to attack then fact that there vss no waight given.to apprsis- als and everything depended on the interviews. The defects to this type of approach,. according to the Union, was that.the methods- used by the Employer did not touch on the issue of leadership qualities. Again, it WBS too subjective. The type of marking system cannot result in any other response. The second point ' which, in the opinion of the Union flawed this approach, was that this marking system did not provide any way of measuring the strength of the qualifications of the interviewees. This, it was urged, was an improper denial of looking at the case of the applicants. Finally, it was argued that the the documentation of 'this select- ion process was deficient in that it did not indicate where the successful applicants were to go upon being selected. In result, then, the Union requested that the jobs be i-e-posted and the selection procedure gone through again, this time using proper methods. The Employer responded to these in a way which - 10 - leads this Board to conclude that these grievances should be dismissed. Dealing with the second general argument, we accept the view of the Employer that the testing proced- ure was not deficient. First,, we do not accept the claims of the grievers that the method of the interviews was improper, even though this was not emphasised by the Union. Given the number of applicants it is hard to imagine that a more speedy method could be found. Again’, we find little support on then facts that the interviews were somehow 'tarnished by favouritism or improper subjectivity. All that was given was speculation based on no evidence whatsoever, not even hearsay. One can only wonder whether the case for the grievers is based solely on being passed over while senior to those selected. Such is a human response. It does not, however. prove the case that the action was improper in terms of the governing collective agreement. In the same vein, the number of applicants no doubt contributed to the type of selection process adopted. With so many applicants and given the type of job in question, the methods used must reflect these facts. As the English put it, "there are horses for courses”. The central question which a board of arbitra- tion mus-t ask in these case* is whether the methods - 11 - used are reasonable ones in the circumstances which prevail. We are convinced they are. The tests used may be not completely perfect, but they fall within the ambit of reasonability. . Turning, then, to the claims against the , individuals mentioned, it is useful to first examine the arguments relating to Messrs. Klodnicki and Lascala. Here the essence of the Union case was that they did not have the basic “musts” for the job. We accept the Employer position that the evidence suggests that this was not the case. The evidence, in our view, supports the Employer's position: they did have such qualificat- ions. The only question is where such is shown in documentation. We accept again the Employer argument that the approach taken by the Union on this point is overly-technical. Unless there would appear to be some substantial wrong to the grievers, not present here, one should not interfere on such grounds. The only difficult case is that which relates to Mr. Keizars. Here, while much of the argument against him falls into the area just canvassed, there remains the question of his status vie-a-vis the bargaining unit. On the evidence, while extremely slight, it would appear the Board must conclude he wai outside tha bargaining unit at the time of the selection. nn balance, however, we accept again the Employer' 5 ?osicio" ii'.:h rrspec: - 12 - to the authorities cited: Re Scarborough General Hospital, supra; Re OPSEU (Debbie and Clark) and the Crown in Right of Ontario (Ministry of Consumer and Commercial Relations), #131/79 (Roberts,1981); and Re OPSEU (Lavigne) and the Crown in Right of Ontario (Ministry of Transport- ation and Communicationsl, #561/81 (Delisle,1982). Thus, we reject the position of the Union on this point. Accordingly, we dismiss these grievances. DATED at Lynden, Ontario, this /\ 27th day of February, 1987. "I dissent" Member Tx - G.Peckham Member