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HomeMy WebLinkAbout1984-0251.McWilliam.84-12-04IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES .COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: July 31, 1984 OLBEU (Brian McWilliam) Grievor - and - The Crown in Right of Ontario (Liquor Control Bo.ard of Ontario Employer G. J. Brandt Vice Chairman T. Traves Member D. B. Middleton Member M. Levinson Counsel Koskie & Minsky Barristers and Solicitors R. J. Drmaj Counsel Hicks Morley Hamilton Stewart Storie Barristers and Solicitors KECISION In this case Mr. Brian McWilliam claims that his Employer violated the Collective Agreement in not awarding him a posted position when other employees junior to him were successful. The position in question is that of Assistant Manager of A Store. The Liquor Control Board of Ontario operates in excess of 300 Stores in the Metropolitan Toronto area. These Stores are designated A, B, C and D according to the size and the volume of their sales. The A Stores are the largest Stores. The Grievor's seniority dates from October 12th, 1971 when he was hired on as Clerk II. In October of 1973 he became a Clerk III and on October 3Otl-1, 1978 was promoted to the position of Clerk IV. Then on May lst, 1980 he wa's promoted to the position of Assistant Manager of a B Store. From that time to the present he has served in that capacity in a number of different B Stores. He began at Store No. 6 and then was transferred to Store No. 456 where he worked under the direction of Mr. T. Bird, the Manager. From there he went to Store No. 8 where he worked for a period of four to six months under Mr. Jarvis. While working for Mr. Jarvis an evaluation of his performance was done and Mr. Jarvis expressed certain uncomplimentary Opinions concerning the Grievor. A grievance was filed but the matter was settled on the basis that the Griever would be transferred t0 Store No. 150. Consequently in August 1983 the Griever went to that Store and worked for a time under the managernont Cf Mr. ,‘- ,i -3- Gaudar although the evidence indicates that there were a number of other acting managers who had responsibility for that Store. Finally, the Grievor was transferred on October 17tl-1, 1983 to Store No. 41 *here he currently works under the management of Mr. K. R. Doyle. The postings for the positions in question went up on November 18th, 1983. The practice of the parties in connection with posting&is that people who want to be considered for a promotion,aake application even though there may not be a vacancy at the time. All applications are ranked in order of seniority and when a vacancy does occur, as it did in this case, a request is made of the.Store Manager where the applicant works for an assessment of his capability. That assessment is then forwarded to the Central office and a decision made. Thus it was that Mr. Doyle was called upon to make an assessment of the Griever. He made an assessment which was negative and the Grievor failed to obtain the desired promotion which was awarded to the next most senior applicant. A number of other applicants with greater seniority than the Grievor were also unsuccessful.. However, as none of them grieved, the only issue here.concerns the entitlement of the Grievor to the posted position. Some indication of the Grievor's prior work performance is to be found in the annual salary/rating report of the Store Manager and District Supervisor. This is made on the Grievor's anniversary date and. covers either or both of a six month or a ten month period. The first such report available is that of Mr. Bird where the Grievor was given a satisfactory rating in all categories and where it was indicated that t??ere were no problems. liowex~er , the Supervisor's remarks indicated that the Griever had an - 4 - abrupt manner when dealing with people but that he seemed to be overcoming this communication problem. Some further indication of this problem is to be found in a memorandum dated November 2Sth, 1981 from Mr. Bird to Mr. Jennings the Director of Store Operations indicating that the Grievor did not communicate with his peers and that his attitude seems to cause dissension among other employees. The next annual salary rating report, signed by the Griever's then Manager, Mr. O'Connor, in May, 1982, again gave him a satisfact- ory rating in all categories. However this assessment was based only on a 10 week period. Mr. Fletcher, the Supervisor for the area in which the Grievdr was then working indicated on that report that the Manager had expressed some concern as to the dissention which the Grievor had created among the staff and " referred to the fact that the Grievor's previous Manager had brought to his attention his problems in terms of communicating with fellow employees. No'report was made available for 1983. None of the comments contained in these reports concerning the Grievor's manner of dealing with fellow employees was supported by any'first hand evidence. The only evidence of thatpcomes from Mr. Doyle, who testified with respect to his own evaluation which he did on the occasion of the Grievor's anniversary date in April of 1983 and on the occasion of the request for an evaluation in connection with his application for a promotion. The annual salary rating report prepai-122 '51; %r. Doyle, q-ave thi? srievor an unsatr.sfactory l-at:.nc; In l:!l:-e:\ o: the Ireted -, 5 - categories: cooperation with associates, development of personal competencies, and training and supervision of staff. In his comments concerning these unsatisfactory ratings Mr. Doyle stated that the Grievor didn't "detail the work and follow-up to see if the work was done." He would.either participate in putting away stock, dusting bins and general clean-up of the Store or do these things on his own. It was also stated that Mr. McWilliam didn't have respect from his fellow employees because of his abruptness with them. In respect of this latter comment the Grievor was given a verbal warning which, according to the notation attached to the annual salary rating report, for 1984, appeared to have led the Grievor to improve his performance in that regard. Although this rating was expressed to be for a six month period it was only for the period October 17th, 1983 to the end of the 1983 calendar year. When Mr. Doyle gave the Grievor a 10 month evaluation in April of 1984 he gave him a satisfactory rating in all categories and the Area Supervisor remarked at that time that the Griever had shown improvement. Mr. Doyle's unsatisfactory rating of the Grievor, as set out in the annual salary rating report was also reflected in the evaluation which he did in connection with the Grievor's application for promotion. That was done on January 14ti-1, 1984 and resulted in a negative assessment in respect of 8 out of 10 questions asked. The primary basis for Mr. Doyle's negative evaluation of the Grievor stems from two concerns. First, he stated that the Grievor frequently found it difficult to delegate jobs to his staff and, notwithstanding having been spoken to on a number of -6- occasions, continued to do these jobs himself. While this activity on the part of the Grievor did not prevent him from carrying out his other duties Mr. Doyle was concerned that, so long as the Grievor did these jobs, the other employees were idle and apparently made fun of him. Secondly, there was concern about the Grievor's abrupt manner of dealing both with customers and with staff. As to the first matter, the question of delegation, there appears to be no dispute that the Grievor did in fact have some difficulty in delegating responsibility. However, he stated in evidence that when he sees that a job is not being done he prefers to do it himself in order that the Store is kept~neat and tidy and well run. As for the claim that the Grievor had an abrupt manner in dealing with customers and other staff the evidence frcm Kr. Doyle related to two occasions. On one occasion a customer had apparently complained about some aspect of service to the Grievor and the Griever referred the customer to Mr. Doyle. However, when Mr. Doyle approached the customer, the customer asked him who he was. It is difficult for us to understand what this has to do with abrupt treatment of customers. The Grievor's evidence in connection with this was simply that this customer had specifically asked to see the Manager and the Grievor had complied with that request. - 7 - As for the allegation of abrupt treatment of fellow employees the evidence is somewhat more specific. Mr. Doyle related an incident in which he overheard the Grievor tell a fellow employee "I am two notches above you, My name is Assistant not Clerk". He told the Grievor that he did not want to hear that kind of talk and issued a verbal warning to him. That is the verbal warning attached to the, 1984 annual salary rating report. However, Mr. Doyle is not aware of the context in which that remark was uttered. The Grievor testified that on this occasion he had instructed the employee concerned to carry out a particular job and that when he ei+&er didn't do it or was slow in doing it the Grievor stated words to the effect "if it is good enough for me as an Assistant Manager it is good enough for you as a Clerk III". Although the Grievor provided this Board with that.context he apparently', did not relate those circumstances to Mr. Doyle at the time that they were discussing his annual salary rating report. The relevant clause of the Collective Agreement is Article 16.6(a) which states: "Where employees are being considered for promotion, length of service from appointment date will be the determining factor provided the employee is qualified to perform the job." Thus, the question here is not one of comparing the Grieves's abilities with any other applicant but rather with assessing whether or not he was qualified to perform the position which he sought. / ? -a- The Classification Guide filed with the Board identified the typical duties for this position. They included supervising staff in undertaking Store management functions such as customer ' service, Store and stock maintenance and security, financial and management reporting; handling customer complaints, predicting stock requirements, ensuring security, checking accuracy of all reports prepared by staff, and planning stock storage arrangements. Apart from the concerns which the Employer had with respect to the Grievor's manner of dealing with fellow employees and his tendency not to delegate jobs, there is very little evidence to indicate that the Grievor was incapable of performing the other duties required of this position, With respect to the question cf his abrupt manner it would appear that this had been somewhat of a problem in the past but that he had shown some improvement in this regard. As for the two instances cited by Mr. Doyle as indicating a continuing problem in this regard the Grievor's evidence constituted, in our view, a satisfactory explanation of those incidents. Insofar as inability to delegate is concerned we would note that the Grievor's reasons for assuming personal responsibility for a number of tasks which ought to have been delegated indicate a concern held by the Grievor that his staff would not carry these tasksout quickly and efficiently. We find it somewhat odd that the Employer would regard an attitude of this kind to be worthy of criticism. Having said this we do not ir ,ish to be taken as suggesting that it is not appropriate for the Employer to direct the Griever, as a Manager, to delegate responsibility and to expect him to do So. p.n ahi!it!! t0 deleqate successfull;r is an important consideration in ,C' 5, c e s Li 1 ri c: whetheI- or Ix,:: on.2 is qua! i fii~ri :10 pe!-fc:-:: su:>~ervisory duticlr:. ‘: -9- In summary it would appear that the concerns of the Employer relate more to conduct and attitude that might form the basis of discipline than they do to lack of qualifications to perform the duties required for this position. We are satisfied that the Grievor is "qualified to perform the job". Whether or not he performs it in a manner which is satisfactory to the Employer in the future remains to be seen. Consequently the grievance is allowed and the Employer is direc'ted to place the Grievor in the position to which he ought to have been placed and to pap him such compensation in respect of lost wages and other benefits to which he.is entitled by virtue of this Award. By agreement of the parties the Board remains seized of ,, jurisdiction in the matter of determining the amount of compensation to be paid in the event that the parties are unable to agree. DATED at London, Ontario, this 4th ,day of December, 1984. TFTraves Member "I dissent" (see attached) fi:B. Middleton Member November 23, 1984 DISSENT Re: The Crown in Right of Ontario (LCBO) and OLBEU (Brian McWilliam Grievance (251-84) After further review of the Majority Award, notes taken at the hearing a,nd written arguments of Union and LCBO Counsels, I have revised my original stance and I'm unable to support my colleagues who concluded that the grievor is qualified to perform the job of Assistant Manager 'A' Store within the natural meaning of Art. 16.6 (a) of the relevant Collective Agreement. The correct decision is a judgement call involving the nature and degree of 'qualification' necessary to the proper performance of the job in question. This Member cannot underestimate the importance of Managerial selection or whittle down the standard of competence that must exist in a made up member of the supervisory team. Performance ability in the mundance mechanics of a managerial position is not 'enough, and in the job under consideration, ability to lead others and delegate responsibility is of paramount importance. Along with this, a natural manager.must have the spontaneous respect of those he leads and know how to deal with his subordinates so as to avoid friction in the work place. The evidence, as is clear from the Majority Award, shows that Mr. McWilliam was deficient in all of the above regards in varying degree and in particular persisted in doing the work of his subordinates when Assistant Manager 'B' Store. These deficiencies are normally ingrained attitudinal problems which tend to persist and often worsen with process of time in a supervisory tryout programme. For these reasons. and. because I cannot adopt the charitable attitude of the Major i and work patterns, th i grievance. ty Board to Mr. McWilliam's behaviour s Member would have dismissed the Furthermore, this Min 0 rity Member deplores the intrusion of Boards of Arbitration into the promotion and supervisory selection process who have decided to act as surrogate Management except under very exigent circumstances such as protracted time lapse. - 2 - This Member considers that an Arbitration hearing or hearings divorced from job surveillance of the grievor and the other candidates is an artificial and misleading forum for the decision making involved in making up a Manager contrary to the decision of the Management selection team on the spot. In this case, employees senior to the Grievor were also passed over in the original selection procedure, and they are not to be considered despite the plain wording of Art. 16.6 (a) to the contrary effect, because they did not grieve in the first place. The majority Board ra.tionalizes this departure from the Seniority principle in the Contract by resting on consent of both Counsels at our hearing to do so. We must all hope for the sake of Industrial harmony that these senior employees to Mr. McWilliam are content with this situation when an employee junior to themselves obtains the coveted position by arbitral decree and appears in the Managerial role at the place of work. These considerations prompted this member of the Board, in correspondence with the other Board Members to suggest that appointing Mr. McWilliam'to the position to which he ought to have been placed' was an inappropriate outcome to our find- ings, and that the Board should remit the matter back to the Liquor Control Board Management for a rerun of the selection process with suitable. guidance and comment, if any. This suggestion if adopted would have given the passed over employees, senior to Mr. McWilliam an opportunity to benefit on a simila,r basis from the supervisory appraisal standards of the Majority Board which were somewhat less than demanding in this case. The LCBO Counsel made the same suggestion to the Majority Board and it is obvious that our mutual advice was declined. In summary, the majority Board, in my view, would have been wise to either dismiss the grievance, or at least remit the matter back to the LCBO; and, by not doing so, they have appointed Nr. McWilliam to a managerial position wherein, as pointee, he is-unlikely to benefit from the t an arbitral ap natural suppor to him. ive auspices which would otherwise have accrued In short, my v i stands does Pr. advantage with ew is, that the Fajority Award as it presently McWilliam no favour, and puts him at a dis- his colleagues in Kanagement.and his sub- . ordinates in the work place. All of which is respectfully submitted O.B. Middleton, Member /SC