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HomeMy WebLinkAbout1985-0629.Eaton.87-04-24IN THE MATTER OF AN AF.BITRATICIN Under THE CROWN EMFLOYEES COLLECTIVE BARGAINIXG ACT Before THE GRIEVANCE SETTLEMENT BOW Between: OPSEU (U. p. Eaton) -and- Griever THE CROWN IN RIGHT OF ONTARIO (Ministry of Transportations and Communications) Employer Before: P. Knopf, Vice-Chairman I.J.Thomson, Member G. Peckham, Member For the Griever: D. Bloom, Coutisel Cava~luzzo, Hayes & Lennon Barristers & Solicitors For'the Employer: H.B.Furanna Senior Staff Relations Offickr Hinistry of Transportation and Comunic?tions Hearings: July 28, 1986, January 8 and,'), 1987 : r . ‘> . AYARD In this cast, c:iz gri,Jar, William Zston claims ~:I;IL hr3 has boon unjustly dGnie3 the ?osi iion o2 Zone P3 in ci ng Foroman, Highway General F?rcman I. Since this case involv=& the rights oT the incumbent, K.ally Boagan, who was in ::IC j.os throughout thzs? procccJing.s, Hr. Bcsgan was no:iIixi of ii~ haaring. Ha was present throughout and oarticipate.1 3urin.j the enquiry. The cask of till’ griavor relies u?on ArticlzJ 1.3 c2 the collcctivc agreement which roajs: In filling a vacancy, tha Zm?loycr shall giva primary consideration to lual i fica tions and ability to :>crform the reqtiirs:l duties. Whcrc qualifications and ability are relatively equal, length of continuous service shall be a csnsidsration. I: 1 ;: Gnly :wo men a?plie,d for thz job in question. The gricvsr is tha junior employee com?arej. to the incumbent, Iout the griever claims he has superior qualiCications and abilit;? to perform the job and thus ought to have won tha job com?c ti tion. Further, or in the altarnati.ga, the Jnio? claims that the Employer made errors in the prsc~zss of t!?-i job competition that shou1.d n~~llify the Sm>loyor’s decision. AC the outset of the ?rocccdings, co~nsa1 for tbc ‘Jnio,) ask.23 this Board to depart from its normal practice and to require the Cmploycr to grescnt its case first, although t:lc !Jnion acknowl-dged that it boars the ul timato logal onus. It was submi ttcd by counsel for the Union that the raquastzd procedure would be more fair because the Enploycr has t.92 g tea ter ;tnowlcJga of til.2 competition orocoss an4 this wou!.d .2nablC the Union to cross-examin? the incumrcnt. Gthcrv:sc, the Union su3mitted that it would ba at a disaJvantJgc. Counsel for the Ministry rdsponJod by pointing out that CI~L? Union had been supplied. with f,ull disc1osur.e p‘rior ‘to th? hearing. Further, while the Ministry had not intended to call the incumbant as a.witness,~‘counseL for ‘the’ Ministry indicated that she would raise no objection to the Union if it applied to cross-examine Mr. Bcagan. Finally, counsel for the Ministry suggested that the Ministry.would be at a disadvantage by procceaing first because it had no idea of the case it had to ,meet against the grisvor becau~sc the Ministry did not know the basis of the grievor’s claim of superior qualifications or what were to be alleged as the flaws in the compe ti tion process. After considering the submission’s, the Board rule’d that the Union should be required to present its evidence first. Having heard that the Union ,was provided with full disclosure and that an application’ to cross-examine th.e incumbent would not be challetigad, we could see no reason why the Union would be ,placed in a? unfair or .an untenable position if it proceeded first! Further, since the Union, was promised a full right of reply, then Board could see no reason to depart from its~ regula; practice of having the order of presentation reflect the placement o’f the legal onus, which is clearly upon the Union. Further, it ‘is preferable to .have the Union present its case first so that the .respondent and the Board can be made aware of the .basis of the Union’s case. Thus, the Union did proceed first. To summarize very .briefly, the job of Zone Taint , _’ A. Foreman involves organizing, supervising and providing technical direction to sea,son,al and/or regular crews who carry out zone, painting and related tasks on highways in tnc New Liskeard and Cochrbne districts. Thirty-five pcrc;?nt of t!lc job relates to zone painting, ten percent of the job. rslatcs to “prc-mark,ing” or marking out th< plbts Cot Lt1.z zont paintin. lines, and forty-.f ivc :>crccnt of t!lc job I involves the winter, du tizs associs ted with Minter ,maintznan-o - 3 - of the highways as a roaJ patroller and operator of snow removal equ ipmcn t. The remaining ten pzrccnt of t!le job can best SC described as simply “othzr relsteJ duties”. The history leading up to the competition is of some relevance. In February of 1984, the same position for .ition was !lcld in the same area becaime vacant. A job compet which Mr. Eaton applied. ‘The posting read follows: in part as LXATICiJ DISTRICT 14, tI3W LISKZARD PATROL 7, CiGLCHART THE JOB The incumbent is required to supervise equipment operators, contract operators and flagmen in carrying out zone painting operations. Zone painting operations proceed from April to October in both New Liskzard and Cochranc District. During the winter months the incumbent will act as a Night Patroller at the Znglehart Patrol in :lew Liskeard District. The incumbent will be rcsgonsible for supervising winter maintenance operations on his or her shift and perform the duties of snow plow operator as required. Other duties include the operation of Class ‘A’ or ‘B’ equipment in the spring and fall interim periods. THZ CANDIDATZ MUST HAVE: 1) Several years of experienc.3 in -- zone painting and winter maintenance operations. 2) x valid Province of 3ncarin Class ‘II’ licsncc and the ability to obtain Ministry Operator Termits for zone 2ainting and other patrol Class ‘A’ and ‘B’ equipment. 3) An acceptable driving recorfl. SHC’ULD HAVC: A) Ability to su?crvise staff. B) Ability to prepare and review reports and forms. NdTb : -4- C) Ability to communicate well interpersonally. D) Good general knowledge of patrol maintenance operations and procedures. El Working knowledge of the Highway Traffic Act, the Occuptional Health and Safety .Act and the Manual of Traffic - -'Control Devices as they apply to zone painting and patrol operations. F) Good physical condition. DUTIES WILL REQUIRE THE INCUMBENT TO BE AWAY FROM HEADQUARTERS 0VER:JIGtlT AS EXTENSIVE TRAVELLING IS INVOLVED DURING THE SUMMER MONTHS. The grievor applied for the job in 1984 but he withdrew his candidacy at the interview when he learned that he would bc required to move his home to Englehart if he was awarded the job. It is clear that for a.numb?r .&-reasons he felt vary, unhappy about that reqdiremznt of relocation,' In his letter of withdrawai,*he.wrota to the Ministry: I hope that my decision does not hav.a future repercessions with regards to future competicioneand advancement. By April of 1985, ttie job -of Zone Paint Foreman became. vacantagain. The competition which is the subject of this casa was then launched. Posting was changed somow!lat from the 1934 formd,t. The' 1935 posting read in part: GCATION Distri Note: c?t Y14. New Liskcard If the successful applicant is presently hcadquacteccd outside the New Liskeard boundary, the desiqnatad FJquarters of this zsi ti3n -- will Se Patrol 6, Kenogami. TdE JOB Dirac tly supcrvisc, control, and provide technical di ccc tion to seasonal and/or regular s taf E employees and to contrtdctor operators engaged in Con.2 Paint operations throughout the New Liskcard and Cochrane Ois tric ts. Perform as Night Patroller or Snow - Plow Operator during th2 wintar season. Operate Class “A” of “D” equipment as required during the spring and fall interim periods. THE CANDIDATZ : MUST HAVE: 1. SHOULD HAVE: A) B) Cl D) E) F) G) 11) Several years 0E cxpzricnco in zone painting, highway maintenance, day labour, or cons true tion opnra tions. A valid Province of’ontario Class “G” driver licence. An acceptable driving record. Good working knowledge of tools and equipment normally used in zone painting operations. Good General knowledge of Patrol operations. Ability to interpret working plans and specifications. Working knowledge of the Occupational Health and SaEe ty Act, tha Highway Traffic Act, and the ,Manual of TrafEic Control Devices as it applies to the Zone Painting an? Patrol operations. Damonstratad ability to supervisa stafE. Good organization and planning skills. Good interpersonal and Communication skills. Good physical condi Lion. NDTE : In order to retain this position, the succcssf~ul candi3a te must complc te and The significant changes bctwecn 1394.and 1935 were the redesignation of the headquarters ‘to Kcnogami and the broadening of qualifications beyond cxpcrienco.in zone painting and highway maintenance to add construction or day labour. The experienoe and qulifications of Mr. Eaton and Mr. Bsagan should be briefly outlined. At the time of th2 compe ti tion, the gricvor was a Power Equipment Operator II.’ Ho has 3one patrol maintenance work, and was a Zone Striper Driver and Operator from D,, <>-ember 1978 to August 1331. !I2 was aven called upon to relieve his supervisor. From August, of 1981 to October of 1981 he h.sld an acting positon of Ai~ghway General Foreman. Thus he has,extensive experience in highway maintenance and zona painting including holding the position he now seeks in an acting capacity for three months. Management lodged no complaint about the griever’s performance in any of thcsz jobs at any level. On the other hand, the incumbent Kelly Beagan has never worked inzons painting per se. However, he does have extensive experience : in the Ministry in construction operations including surveying. He has also acted in ?uSlic and crew operations, weed spraying and as a grader ,operator. He stressed his experiance with the weed sprayer was ve~ry similar to the zone striper becausa the basic component s of a wned .sprayer and a zone painter are quita similar. He also stressed that his surveying experience was very similar to ~pro-marking with t:le zone painting operation. Al though Mr. Zaton had the advantage of actual cxperiance in zona painting, the cvidancc was that tha procedures and equipment had developed since Mr. Eaton had acquiri,d that-experience so the equipment now involved a hot (rather than cold) paint operation. This in turn necessitated a boiler and, different paint mixing procedure than Mr. Eaton had performed in the past.. .Thus, nei thcr - 7 - applicant had actual owprizncc with all the equipment involved in this job, although Mr. naton’s experience was far .a closer to the job than :4r. Dcaganls. Hr. Beagan candidly admitted that because of his absence 3f actual expzci?ncs 3.1 the job, he relied extensively on his crew to familarizc him with the tachniqucs when he took over the job in the early - part of 1986. Both Mr. Eaton and Mr. Eoagan were considered qualified for the position and thus entitled to an interview. The intarviows were conducted by a team of three men. 32y were John Hamblc ton, the District Elaintenancc Snginecr, R. W. Carson, the Services Su;2crvisor and D. A. ;ioughton, the former Zone Paint Foroman. Mr. Carson has also been on the sclcc tion commi ttca for the 1984 competition and he was present at the in&r-view with the grievor when the gricvor withdrew his candidacy after being told that hz would be required to move if he received the job. Mr. Carson was also Mr. Beagan’s direct supervisor. Mr. Carson was not called to testify. Mr. Beagan did admit that Mr. Carson had call-3 hin after the competition ha3 been posted to advise Mr. BeJgJn an3 another employee of the posting and to advise them to consider that opportunity along with another opening that nad become available. The grievor received no such call Eron any supervisor. The interviaw committee did not retain their individual notes of the interview process. Instead, all that was kept was a work sheet synthesis com?ile,d by Mr. Ham’)l: ton of the questions and answers given by the twz candidat-s. The answers recorded on the work shcst wcrc sai3 to rcFl.>c t the consensus of the three commi ttec membrrs as to the substance of the answers given by each candidate a?d al53 contains some comments regarding impressions whicn ar3s.c from the answers. Mr. HamSleton says that the original n5c.zs r.31:2 dcstr3ycd SJCJUSC it was thz “policy” of the district o:Eic? - 3 - to do so as long as a “sufficient record” was kept of the intorv.icws. However, Mr. Hamblc ton” also admitted knowing as long as four years ago that cases issued by the Grievance Settlement Board had suggsstzd that all interview notes should be kept. It seems that the off ice has stopped throwing away their notes of .intsrviews in job compe ti ti.>ns as. of the fall of 193;. As a- result of all this, the onl;r evidence the Board had ragarding the interviews was that given by Mr. Hamsleton and the grievor. We see no reason to disbelieve Mr: aambleton’s testimony that each candidate was asked precisely the S1rnJ questions. The ques’tions were drafted by t!le selection committee having regard to the requirements. of the job and a desire to assess what they deemed to be the ‘appropriate selection criteria. These critsria were divided into four “modules”: 1. Mechanical/clerical/ma thema tical. s -~, ‘2. Interpersonal/communication skills/leadership ‘3. Co-ordidating and organizational ability 4. +erating ability/dcxtcri ty/manual skills ’ ‘The’ candidates were rated relative to each other with regar:? to their answers by the threa persons in the selection committee; working together in consensus. Ifs any individual ratings’ were done by the commi ttea members, this was lost to the Board when’ iha’ notes wera des troycd. There was one difference in the conduct of the in torviews. Ant the outset of the griever’s ~ntcrvicw, Fir. Carson iaiscd a scrics of’qucstions to the grie,vor about his willingness to move to Kenogami. Bcciusc th2 compZ ti ci on - 9 - had designated Kenogami as hcadquactecs for candidates applying from ou tsido the New Liskeacd District, this again would have meant that t!x gricvoc would have had to move his home if hc w?cc succassful in the competition. The gricvor testified that he was surprised to face sach questions because he had indisatcd his willingness to move on the a?$lic tion form. Mr. Zaton testified that hc responded to MC. Carson by saying hc was willing to move. hcthec, t!le gcievoc could not understand why the questions watt13 con tinuc after ho gave that answer. MC. Hambleton testified that Mr. Haton di3 not answer Mr. Carson directly and that it took Mr. Hanblcton’s intervention to get a clear and positive response from Mr. Catsn. Mr. Caton firmly believes thbc :iIis series of questions had an adverse effect upon him. It clearly upset him at the time and he feels thay made him unable to perform up to his potential for ti>J rast of th;l interview. Be that as it may, the committee formed a markzdl;l better impression of Mr. Beagan than they did of Mr. Es tan. Nothing can be served in this recital of the facts by reviewing all the questions, recorded answers and individual ratings for each question. Certainly without the bcnefi ts of the full notes from the interviaws, the Board cannot comment u?on the merit of the alleged ~ansrcars given. The commi tt’ze, then acting in consensus, rate4 the griavor at 192 an9 Xr. Bcagan at 300. Mr. Hambla ton admits he was sur,7rise:! at the diSQari ty in these scores, giv?n the fact that Mr. G~ton had actual cx?erience in this job whereas MC. Bcagan ha3 not. However, des?i te this sur?rije, Nc. flamblaton said that tnn committee was so convinced by tne degcze with which Mr. Beagan had scored above Mr. Pa t.on that i t was dccidod that no furthac enquiry ought to !)e held. Mr. tlanblz ton admi ttcd that th.2 committee was interezstad in choosing t.ll* candidat with the greater potential for advancement, 3 fact that was most clearly dsmonstratcd :>y tic. &a.~an. 140 I I I i - 13 - perso,lnel records wera chcckcd and no rcfcranccs or superintendents were th?n contac.tcd. -Th,e joo was then awarded to Mr. Beagan. ._.., .I~. The last ‘aspect of the evidence that must be addressed is the que~stion of the designation of C~J headquarters. This designation means that the parson in the job must SC living or located within a very quick driving .distancc of the headquarters to be able to report for duty on call as required. This is particularly so in the wintzr months when there are highway mafnt,anance duties and patrol duties’. The Ministry’s evidancc is that. they chose tc designate Kenogami as the headquarters in. this compe ti cion for several reasons. First, they wanted. the foreman in the Ncw’Liskeard district for administrative reasons.,’ Second, in the summsr, the Kcnogami location is advantageous for the tranportation for all members of the crew. ~Third, and most important,. management needed fan ad,ditional night patrolman in the New Liskeard location for the winter months. Since the duties of this job included night patrol .as a significant comporxnt of the Zone Paint Foreman job, management saw this as an ideal way of solving the need for a foreman and a night patrolman altogether. Management only required applicants outside of the ‘district to move to Kenpgami because it was felt that thasa people would have .to move anyway in ordar to take the job. On tha other hand, applicants from within the district would .not be required to move even if they rosiJe2 too far from Konogami to make it to the. headquarters within a few minutes’. ~The basic reason that Mr. Hamblaton gave for this difference was that managemant’did~not want to discourage-qualified applicants from..entering. tnc _ compc ti tion. However, in cross-examination, Mr. ilamoleton admitted that an application from the gcicvor, gi\rcn w!1ora ho actually lived, would be closer to Kenogami than some of th,? other potential applicants who would have been within the i<cw - 11 L;5j;;:ar.,l Districr b9undary Su: who +:(a Curth.?c .3’J2q from Kanogami than the griever’s home town. This is bccaus2 :!I.: griever’s ajjccss oE Iroqllois Falls is only 3?,>roiimat?ly 30 nilds from Konogomi, whci.aas therz ar? locations within th? il,‘W Liskeard rgion that acz far f:irthcr sway from Kcnogami. In any @vent, dos?i to this anJ the grizvqr’s roluctancc to mova in order to acqui-co this job, Mr. Baton did make i: clear to this Board that hs \Jas willing to mov? to Knnogami it he wore to be s;l;ce~sE~~l in .obtaining the jo3. The Argument .-- -- Counsel for thz ilnion argued Oat tha facts of :his case disclose a violation of Article 4.3. T.he mat im?ortznt fact stressed by counsel for the Union is that the griovor had actually performed this job in 1981 to the satisfaction of managsmcnt and thus demans:rat?d an in-3qth knowlodge of t:13 operation. 13y ton tras t, Fir. Beagan had never ?erf~,rma,i tile? job and was relying upon th2orStioa.1 and hearsay information at the time of the int+rvicig in order te answ~zr the technical questions about the job. Asking why th3 committee was able to conclude Mr. Boagan was superior to MT. Za ton, it was suggastod that the S?st sx?lanation 59r that is that the interview ?rocesS itselE Was so dsfr?Ctiv? JS to rcn4er it invalid. The dcfocts suggested by t!ic Union war-3 that the committee im>ro?orly 2lacc.d total reliance ti?Qn tile interview grocoss itself in making tha ~-1ocision. Saoondly, one of th0 members of tnc coinnittas was Mr. Dcagan’s supervisor anJ thus haJ special knowl?dgc ai: Mr. Bsagan. Also, no record was k;‘Dt of the intorvisw. . . Further, Mr. Ilambl~oton’s evi_lanco mad2 it clear that a si.Jnificant consideration of the committoc was who would 33 th? candidate who had the gccat,-r ?ot?ntial EDC f?lrther a3vancemzn t, whereas this was not a ccic-rion containa:J in tha job ?ost.ing. -. 12 - ‘:hti !Jnion also stigg,c’s~:.J Chat the Xinistry’s requirement that the hcajquartars b? at Konogami was unreasonable. First, it was said that this wou1.j detract rather than attract more qualified candiJates. Secondly , the geography was such that it made pcoplc who lived closer :o Kcnogami move as opposed to others who were located fur thdr in the samd district. It was suggcs tod that it was open to tha Board to find that the headquarters was actually designated in order to make Mr. Caton’-s situation mire difficult. Counsel for the Union rafar.red the Board to the cases. of Marek and Ministry of the Attorney General, GS3 File -- 414./33 (Samuals) and Quinn and Ninistr*, of Transoortation a:*d ------- .-_.,.- Communications, GSB File 3/73 (Prichard). -- Counsel for the Hinistry argued that t!le Xinistrr !]a? acted correctly and that the decision ought to SC uphold. Stressing that the onus-~was on the griever to show that he had superior qualifications to those of Mr. Bcagan, ,it was argued that the, gricvor had not met that onus. It was submitted that no specific experience in z.Dtie painting was required for this job. Instead, the job posting indicated that what was require,d was someone’ who could .do the supervisory work. Further, it was said that the griever’s own experience on the job was relative to cold paint, whorcas the evidence was established that a ‘new hot paint system had Seen in troducecl. T!lcrcforo, the grizv3r’s actual ex?zricnc,z on t!lc job was not a significant advantaga. It was fur:hzr siibmitte,J that~ the interview pro cess and the scoring employ4 crzatz.1 an accurate impr~essi3n of thz relative abilities 0T thz candidate* with regard to the releisnt cri tcria. It was submi ttc3 that any disadvantage that the grievsc may !lav-z pzrsaivz.3 u?dn himself as a result DE his bding questione.l ab.stit his place of residence was a factor that he brought upon himself an3 w,hicn ihe should hav,- Coreseen. .’ - 13 - Further, it was argued t:lat thers is no evidence of bad Eai th on the part oE the commi ttee, ci ther by its condu: t or by its composition. Counsel raferrad the aoard to t:je following cases: sacas and Ministry of the Solicitor --- General, Board File 139/79 (Jolliffej; &mark and Ministry of Rcvcnrle, Board Filb 149/77 (Swinton); Simmons and MinistrY of Go*Jcrnnent Services, Board File 433/32 (McLaren); Walker an.J Ministry of Transportation and Board F’ilc Communications, 514/84 (Vet-i ty); and Eenton and Ross and Ministry of .- Government Services, Board Files 1577 and 1578./,3: (Rob?rLSj.. ! I The Decision Given the grievor’s lessor seniority to tha incumbent, we accept the Minis:ry’s argument that Mr. Eaton must demonstrate superior qualifications and ability to Mr. Beagan in order to succeed under Article 4.3 of the collec rive agreement (See Saras, supra). Howaver, the Board’s function while hearing a grievance under Article 4.3 is to detarmine whether the requirements of the article have been met by the Employer. We agree with the following statement contained at page 7 of the Quinn award, w. . . . It is imgortaat to emphasize that in meeting the obligations undar that article the cm?loycr must employ a process of decision- making designed to consider the relative qualifications and ability of the candidate in a competition which will ensure sufficient relevant information is adducec:I before the decision-makers in order that thy may nails their comparisons in the confidence that they are able to thoroughly and ?roix?rly compare the qualifications an3 abilities of the competing appl ican ts. Similarly, before this Boar4 is able to review any result of d j,ob com2cti Lion, it must also oc proviJed with this requisite background information colloctcd in a systematic and comarcilcnsive manner so as to provide the Boacd with a sufficient factual Sasis on which to make the comparison demsndcd by Article 4.3. . - 14 - The Boar/l has considercj car.z:ully ai1 the e’vidanc2 and submissions aresented at cl!e hearing. llaving done that, wc are forced to conclude that the selection commi ttc.2 miJc Several fundamental errors in its process and dij not sufficiently.inform itself of all the relevant facts for it to bz able to say that it could or did make a fair or adequate comparison of the gricvor to Iyr. 3cagan. The arrors and omissions of this selection committee wart manifold. First, the composition of the committae was unfortunate. Mr. Carson’s ?osi tion on th2 committee as Mr. Beagan’s supervisor gave him special knowledge of ona. applicant. When this is cou?lerl with the fact that Mr. Carson ‘virtually invited Mr. Beagan to assly for the job and _ then cross-examined Mr. Eaton at the interview about tha residency issue until Mr. Hamble ton intervened, the reasonable apprehension of bias inevitably is raised by his >r?sencc. .We arc not making a Einding of actual bias becaus* the facts were not proscntcd to support it. Nor arc wc saying chat-a supervisor of a candidate can never sit on a selection committee. ~Howevor, on the‘ particular facts of this case, a reasonable apprehension of bias does exist. This is confirmedby t!le .fact that I4r. Carson made a point of phoning’Br. Beagan and advising him of the comioetition and suggasting that he consider. the o??ortuni ty that the comp2 ti tion preson tad. Sec~ondly,, -the committee failed to ,!kecp individxual notes of the intorviows. Thus, it is im?ossiblc for this Board to assess the accuracy of the ?u.rporte,j “conscnsual” synthesis of the record. ~Also, i t i>revcnts the Board from being provided with the full background information that was _ colloctzd at the intcrvi?w in a systematic .and com>rchcn;iJ- manner. 15 - Third, the commi tt~e’:: Cailei t3 seak out or t3i.c inc.2 account any factors other t!lan Lh,.? intzcview scores when deciding who should get ,the job. No inquiries into Personnel’ records or of previous supervisors wer2 made. Given t9.z griever’s satisfactory Performance on this very joo in an acting capacity, and Mr. Hambleton’s surprise at the griever’s poor Performance at the intcrvizw, the commi tt2e should have at least enquired further to Jetzrmine how accurately the interview actually reflcct?d both the grievor’s and Mr. Beagan’s reala ti;re abi Li ti,as. In a competition involving numerous applicants, this Board cd.1 sse~ practicaL difficulties in conducting such enquiries. act with only two applicants for this com?oti:ion, no such cxcus?’ can properly be presented. Thus, the committao 1eZt itself in a position that it did not have sufficient factual data upon which to base its decision. Yet it went ahead and decided without that data. Finally, the evidence of Mr. Hamblzton makes i L clear that. the potential of the candidates to be trained fir further advancement within the Ministry was a criterion that was very much in the committee’s mind. Clearly, the committro felt that Mr. Bcagan possessed superior potantiaL to the gricvor. However, nothing in the job postings even suggests that that is a criterion OK consideration for t!le job. Thus, it was wrong of the committee to use this .as a factor in assessing the canJi:dates’ rclativc abilities E3r ths job of Zone Paint Foreman. We wish to clearly state that we havo no quarrel wi th the actual questions designated by the scLcction commi ttca. Nor 20 we hav:> any evidence to suggest that anytijing othzr than the same questions were put to the griever as to :lr. %agan. Thus, we have no quarrel with the actusl questioning process. ,., Nor do w,c fin,d that the Ministry’s designation of Kenogami was unreasonable under all the circumstances. ‘wlil2 it was hinted that. this designation was designed to discourage or disqualify Hr. Eaton from applying, we find no basis for that suggestion on the evidence presented. Though the designation might have been perceived as unfair by someone such as Mr.-Eaton in that it required people outsi& the district to move into it, the designation cannot be considered unreasonable. There was some rational basis for the designation. Further, as Mr. Beagan pointed oti t, the _ Ministry would have been within its rights to confins thz competition to the single (district, but it chose not to. Therefore, while we can see-the basis of the Union’s objections to the designation, we see no reason to interfere with the Ministry’s decision to so designate tha headquar ters. In any event, because the griovor took the firm position before us that he was willing to r&o if he ‘was awarded the job, the question of this designation is largely academic. We are force3 to conclude that the composition of the selection committee, its failure to retain ‘its records, its sole reliance on the interview scores in,.awarding the job and the consideration of extraneous factors were significant errors in the process of hoiding. the com?eti tion. Individually, each of these errors could possibly be overridden by ot!ler fat tors. This is so especially if thcra was sufficient evidence that, the committee had reached the right result. But‘ taken together, we mustfind that the prscess.made it impossible for tha committee’s decision t,> bo allowed to stand. We are very mindful that in cases such as this, the incumbent takes on the position in good faith and often commits himself to the new job in reliance that he has a ttainad ‘some si?curi ty of tenure. This is clearly the case - 17 - in the situation at hand and it is clear that Mr. Bcagan has been performing the joo to the satisfaction of management for well over a year. Though absolutely no fault of Mr. &aga.n, his promotion was placed on a very tenuous foundation due to the grievance rights entitling Mr. Eaton to enforcement of his protections under the collectiva agreement. To dis?laco Mr. Beagan now may v<ry well work a hardship on Mr. Beagan that could be avoided if the parties were able to reach accommodation for both Mr. Eaton an3 Mr. Beagan. Failing that, some remedial staps would have to be taken. The Union had asked that in the event the Board found a breach of the collective agreement, we should simply dwdrd the job to the .grievor. We agree we have jurisdiction to do that. Further, because they were only two applicants, such an award could be possible. However, we do not conclude that that would be appropriate in this case. The defects in the selection committee’s process deprived the Board oE some of the necessary information to properly compare the two candidates. For example, we do not have the benefit of t%a information provided by >ast supervisors except on performance appraisals. These are certainly not complete and do not relate s?eciEically to the jobs in question. Further, we do not have the advantage of the individtisl selection committee members’ questions and answers sheets so it is impossible for us to review the questions and answers they gave at that time. We find ourselves in the same position as the Board in tha Quinn cast that we “are constrained by some of the same defects of information that has forced us to conclude that the selection committee’s decision cannot stand.” (Page B) Therefore, we cannot and will not maka a comparison on the basis of insufficient evidence. While we cannot and do not order the parties to accommodate Mr. Beagan or to work out a settlement to sat:sCy bot!l he and Mr. Eaton, w? can only cncoura.ge the parties :J attempt to do so. * . - 13 - ,. I In the unfortun te circilms tsnce that the parties are not able to work out an accommodation, the job competition will have to be .rcrun to a czrtain limited extant on the following grounds: ~(a) The positron nezd not be oosted again. Only the grievor and !4r. Bcs.gan should be considered as candidates. (5) A new selection committee must be cons ti tu ted, consisting of no members of the previous commi t&s. (c) The new committee is free to develop whatever procedures ‘and questions it deems aparopriata within the :>arame ters of Article, 4.3 and this Board.‘s juri.sgrudence. Cd) Mr. Beagan cannot rely upon any knowledge or experience that he has gained in this job as a result of his being awarded the position from the original competition. As much as it is hum,anly possible, both Mr. Reagan and the sele.ction committee must operate on the basis of tha state of Mr. aeagan’s experience and knowledge of the job as of March 1935. (P) The selectio,? commi ttac is to retain a.11 records, individual and collective, or its proceedings and de1 ibera tions. (f) In every other rcs,acct, the committee must act in accord.anco with the collective agreement, the aspects oE fairness and t!le jUriS.~lrUdenCe of this’ Board. ..,’ - 13 - This 3oard retains jurisdic Lion ov?f the , implcmsn ta tion of th2 Award and oer any issues of compensation that may arise in thz event that the grin;ror succz.zds should a n?ti compcti tion be hzld. DXT~U at Toronto, this 24th Jay of *PriL 19a-l. a ‘? paula Knopf, Chairman ---- I. J. ‘J:imw>on, Member “I dissent” (See.attached) -- C. Peck&... Member --. DISSENT File No. 0629185 W.P. Eaton I regret that I am unable to concur in the decision of my colleagues in this matter. The griever in this cast? has less continuous service than the employee who was selected to fill the vacant position and, as stated at page 13 in the decision, he was therefore required to “demonstrate superior qualifications and ability to Mr. Beagan in order to succeed under Aricle 4.3 of the Collective Agreement.” In view of the fact that it was not established in evidence that the griever’s qua,lifications and ability were superior to those of Mr. Beagan, the required onus was not met. The reason for overruling the conclusion reached by the selection committee is set out,at page 14 in the decision as follows: ‘I... we are forced to conclude that the selection committee made several fundamental errors in its process and did not sufficiently inform itself of all the relevant facts for it to be able to say that it would or did make a fair or adequate comparison of the griever to Mr. Beagan.” With respect, I do not agree that the selection process in this instance failed to enable the selection committee to make a fair and adequate comparison of the applicants in order to identify the proper candidate to fill the vacancy. The statement appearink at page 15 in Walker and Ministry of Transportation and Communications, C.S.R. File 514/84 (Verity) srems to be applicable in this casr: .: 3 “While it remains a truism :har no seiection procedure can emerge unscathed under scrutiny, the Board has some con- ccrns wi:h the procedure followed in the instant matter.” (emphasis added) In the same decision, at page 16, the following statement appears: “Admittedly, there were defects in this competition; how- ever, in the circumstances, the Roard is satisfied that :hc selection panel made reasonable efforts to assess fairly the relative merits of each applicant. In summary, the Board does not find that the competition was improperly : conducted and we do find that the end result was correct.” In the present case, I believe char Mr. Hambleton was both competent and fair in this capacity as chairman of the ~e1ecti.o” committee. The questions that were developed to assess :hc appli- j cants at the interview were pcrrincnt to the requirements of the position :o be filled, and the applicants were given ample opportu- nity to respond. 00 several occasions when the gricvor’s replies were incoCplcre, he was asked additional ques:ions to errcourage him ! to enlarge on his sketchy answzrs. In spite of this assistance, the j griever’s score was so much lCX?er than Mr. Beagan’s tha: the ; commi:tee decided that such a great disparity could not be overcome by examining personne! files or taking any other steps to assess the. relative qualifications of the applicants. (Mr. Hazbleton testified :!~a: the fi!cs were on i?anl to be rcferrcd to if the corrmittce had felt that any usciul purpose wocld be served by doing so.) Under the circumstances. 1 submit that it was very unli,kcly that the selection committee would have selected ?lr. Bcagan instead of the griever if the griever did in fact have superior qualifir cations, since the purpose of the selection process is to fill the vacancy with the applicant who is best suited to do the jo!) in cn effective manner. On the basis of r.he evidence, I xould have found ac, i* spite of some deficiencies in the selection process, the .,eLection committee did identify and select the proper applicant in \ compliance with the provisions of Article 4.3 -of the Collective Agreement. The selection committee concluded that Mr. Beagan’s qualifications and ability were considerably ‘superior to those of the griever, but even if his qualifications and ability had been no b’ecter than “relatively equal” to those of the griever, t?r. Bcagan would still have been entitle? to have filled the vacancy in consideration of his greater “length of continuous’ service” as provided in Article 4.3 of the CoIlective Agreement. In my respectful opinion, the situation in the present case differs from Quinn a&i Ministry of Transportation and Communications, G.S.B. File 9/73 (Prichard) where the grievance was based primarily on the fact that the griever had greater seniority, rather than a claim &hat he had superior qualifications. Under those circum- stances, the onus was on the Ministry to establih that the qualifi-~ cations and ability of the person selected were superior to those’of the griever, because the griever’s greater senio’rity would have prevailed if they were not. In the present case, the onus was reversed, and the evidence fell far short of establishing that the griever possessed qualifications and ability which were superior to those of the person with greater seniority who was selected. On the basis of all the evidence, and having regard to the provisions of Section 4.3 of the Collective Agreement, I would have dismissed the grievance. G.A. Peckham, Member