Loading...
HomeMy WebLinkAbout1986-1051.Moore.88-01-14SETTLEMENT Between: Before: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE CRZEVANCE SETTLEmNT BOARD OPSEU (W.M. Moore) and The Crown in Right of Ontario (Ministry of Transportation) M. Watters Vice Chairman F. Taylor Member D. Montrose Member For the Grievor: N.A. Luczay, Grievance Officer, Ontario Public, Service Employees Union. For the Employer: ‘K.B. Cribbie. Staff,Relations Officer, Human Resourc~es Branc,h, Ministry of Transportation. November 19187 Dec,rmber 07/87 Grievor Employer DECISION This proceeding arises from the grievance ,of Mr. W.M. Moore dated September 25, 1986. Be claimed that he had.been "improperly and unfairly denied a transfer to Fraserville in the position and classification of Patrol Operator 'C', Highway Equipment Operator 4", as posted for in competition number 7-86-18. The grievance requested that he be transferred to the position and location immediately. Compensation was not demanded, as the grievor was at all material times in that same positjon and classification and had thereby sufferred no financial loss as a consequence of the decision being contested. The specifications for the Patrol Operator 'C~' position were filed with this Board as Exhibit '3'. It states the purpose oft the position as being "to operate and maintain within a speci'fied patrol area one or more units of M.T.C. Type V'equipment for summer months for the purpose of maintaining roads and right of way and to perform duties of night patrolman during winter." The summary of duties and responsibilities, together with the percentage of time spent on each significant function, was shown as follows: 1. Under the supervision of a Patrolman, operates and maintains type 'Bn equipment in summer by performing tasks such as - - grading, bulldozing,loading material etc. - inspecting ,equipment daily, reporting mechanical defects to a supervisor - checking fuel, oil and Lubricant levels and topping as 50% required - washing and cleaning equipment periodically - ensuring,that safety equipment (flares, signs, first aid kits, fire equipment, etc.) is in good operating condition - completing equipment report forms daily, noting fuel and oil consumption mileage, type of operation etc. -2- 2. On a shift basis, performs duties of night patrolman during winter months by performing tasks such as - - patrolling specified patrol area frequently, visually 45% inspecting road conditions - ordering out snow.plough and sanding crews as required using mobile radio - preparing reports of shift operations 3. Performs a variety of other related duties such as - - supervising and directing labourers as assigned 5% - acting as sub-foreman in the absence of patrolman as required - other duties as assigned. The posting for the Fraserville location hereunder consideration generally outlined the duties.of the Highway equipment Operator 4 position. In this regard, these duties were described with reference to the purpose of the position as contained in the specifications. The only material.difference ,was that the description indicated that the units of M.T.C. Type "BY equipment to'be operated and maintained consisted of mainly "large and small graders". The posting indicated that the candidate must have a Class "D" Driver's Licence; an acceptable ---- driving record; several years experience in the operation of graders and other heavy equipment used in highway maintenance; and be able to successfully pass a winter maintenance training course. It further stated that the candidate should possess s--m both an ability to complete all necessary paper work required on a patrol, and supervisory potential. The notice for this competition was largely prepared by Mr. Richard Eddy, the Maintenance Supervisor who was-stationed in the Port Hope District Office. - -3- There were three (3) applicants for the position, these being the grievor: Mr. Lloyd Curtis, who was ultimately awarded the position: and Mr. Carl Vowles. Mr. Curtis attended at the hearing and was called as a witness for the Union. Given his interest in the proceedings, he was also given an opportunity to more fully participate in the proceedings. Mr. Curtis did not make extensive use of this'opportunity. Mr. Vowles did not grieve the result of the competition and did notattend the hearing. It appeared from the evidence that he had been reclassified from a Highway Equipment Operator 3 to a Highway Equipment Operator 4 after the instant grievance. Because of this reclassification, it is likely that he lost interest in the final disposition of this matter.. It is noted.at this juncture, that the grievor was the senior employee. Of the two other candidates, Mr. Vowles possessed the least seniority. The Employer 'on receipt of the three (3) applications proceeded to screen and review the same and ultimately concluded that all of the employees were qualified such as to merit an interview. Following this decision, an 'Interview Worksheet' was prepared which contained the following questions: TECHNICAL SKILLS ------------T- 1. Indicate your experience on large and small graders. 2. Xndicate your experience on other types of heavy equipment used in highway maintenance. 3. Explain how you would carry out the following operations with a grader and indicate the settings required on the -4- grader for each. a) an earth ditch b) a gravel road cl snowplowing d) laying asphalt e) shoulder grading LEADERSHIP SKILLS ----------------- 1. What details would you include when making out a1 Maintenance Daily Work Report Sheet. b) Patrolman's Diary. 2. Your supervisor. is absent and you are in charge of the Patrol. A section of two lane highway has washed out .and requires your attention. Describe your course of action. 3. Row would you handle a situation during a heavy storm in which a Hired Equipment Operator reports to work obviously in a state unable to work? These questions were asked of each of the applicants during the course of their interviews held on September 9, 1986. The interview team was composed of,Mr. Eddy; Mr. Frank Gardner, Area Patrol Supervisor; and Mr. D. Strong, Head; District Administration. All of these individuals were stationed in the Port Hope District Office (District 7). It would seem that the latter two (2) team members were well acquainted with both the grievor and Mr. Curtis, although neither had been -5- directly responsible for their supervision. This panel interviewed each of the applicant's in succession employing the questions cited above. The answers received were separately recorded by each interviewer. Their work shee~ts were filed with this Board as Exhibits '10' through '15' inclusive. The answers' contained therein were subsequently summarized and inscribed onto a Competition Rating and Ranking Form (Exhibit 16). Mr. Eddy testified that a "ten point must" system was used to score the questions Specifically, the most complete answer would be accorded a mark of ten (10). ~11 other answers would be prorated by a comparison of ~the number of relevant points raised in the respective answers. ~11 such relevant points were noted by a tick or a number on the answer form completed by each of the panelists. After the relative scores were isolated for each of the questions, a weighting system was applied which favoured the Technical Skills questions over those relating to Leadership Skillson a 10 to 8 basis. The final computation arising from such.process showed Mr. Curtis with 540 points; the grievor with 334 points; and Mr. Vowles with 276 points. Subsequent to this occurring, the @anel reviewed the Personnel File of each candidate. According to Mt. Eddy the panel was looking for "anything out of the ordinary'" that would persuade them that the aforesaid scores should not dictate the ultimate result in the competition. These personnel files included the annual Employee Performance Reports for both employees. We were informed in evidence that the panel found nothing therein to change their -6- conclusions flowing from the interviews. Indeed, their combined assessment based on this entire process was that Mr. Curtis was clearly the superior candidate. In view of this consensus, they did not consider giving effect to the grievor's longer period of continuous service. Simply put, the panel did not feel that the grievor and Mr. Curtis were relatively equal vis a vis the posted position. A concerted effort was not made by this panel to question the immediate supervisors of the applicants. It was the position of the Union, in brief, that the process described above was flayed in several respects of which more will be said below.~ It was further submitted that,'at worst, the grievor and Mr. Curtis were 'relatively equal' and that the former should therefore have been granted the position pursuant to article 4.3 of the collective agreement in view of his greater seniority. The response of the Employer, in brief, was that the competition was effective for the purposes of establishing the relative ability and qualifications of the candidates. Based on the information generated therefrom, it was clear to the Employer that Mr. Curtis was superior to the grievor. As stated above, at the time of the competition t,he grievor was actually employed as a Highway Equipment Operator 4. He had occupied such a position .at Newtonville since 1976. In that capacity, the grievor operated various pieces of Type "B" equipment including large and small graders, tandem trucks with attachments, floats, loaders and snow ploughs, and had been involved with shouldergrading, ditching, surface grading, -7- finishing grading, backgrading, laying of asphalt patches, and snow and ice removal. With the exception of the latter function, it would appear that most of the heavy equipment was used in the summer period when road maintenance was the major objective. In the winter .period, the grievor served as a'road inspector. In these positions, he was called upon to complete paperwork such as the Maintenance Daily Work Report Sheet and the Patiolman's Diary. For the past ten (10) years, all of these endeavors were performed under the supervision of a Mr. Beard. This Board was told by Mr. Moore that he had'received no adverse comment from .his supervisor vis a vis his performance over this period. Prior to becoming a Highway Equipment Operator 4, the,grievor had been a Highway Equipment OpTrator 3 in the years 1965 to 1976, and a Highway Equipment Operator 2 from 1964 to 1965. From 1959 to 1963, he was seasonally employed by this Ministry primarily in the winter periods. The grievor did not disclose any educational achievements on his application form nor had he taken any related coursework with the exception of the Winter Maintenance Course conducted by the Port Hope office on an annual basis. Lastly, the evidence confirmed that the grievor was in possession of a Class "A* Drivers Licence. He indicated in his testimony that he had a "good driving record" and that he had never been "fined". The grievor informed the Board that he applied for the equivalent position at Fraserville because it would take him off of Highway 401. In his estimation, the traffic volume on the highways serviced out of Fraserville would be considerably -0- lighter than that experienced in his then current position. He also indicated that the Patrol Supervisor at Fraserville, a Mr. Ernie Youngman, had been ill and mightbe considering retirement. This would present,him with an opportunity to potentially advance his own career. The grievor viewed the Highway Equipment Operator 4 position applied for as a necessary foundation for such advancement. What makes this a most interesting, and indeed difficult case, is the fact that Mr. Curtis had also served as a Highway Equipment Operator 4. lie had occupied such a position in the twelve year period between September, 1967 and July, 1979. In this capacity, he performed all of the related tasks that were listed in the grievor's evidence. In addition, it would appear that from 1973 to 1977 he had assumed the responsibility of General Foreman on special projects relating to construction work. This included excavating, .back-filling, drainage, and preparation for paving. It seems likely that Mr. Curtis was afforded these extra responsibilities in view of his experience gained prior to joining the Ministry. This prior experience was construction related and exposed him to a wide~range of .heavy equipment (including bulldozers, grade-alls, sanders) over and above that regularly employed in the Highway Equipment Operator 4 position. Mr. Curtis, like the grievor, had also served as a Highway Equipment Operator 3, this being in the period April, 1963 to September, 1967. He also indicated some experience in the overhaul of heavy equipment. -9- Mr. Curtis was promoted out of the bargaining unit in July, , 1979. From that time until the present competition, he served as the District Equipment Instructor in the Port Hope Office. The ,. duties of this management position may be listed as follows: - instruct and train employees to operate and handle all 'types of M.T.C. equipment - promote and supervise District Roadeo and Safe Driving Awards - inspect equipment for maintenance care, servicing, etc. -'investigate and report all M.T.C. motor vehicle accidents - upgrade and retest classified licences - job site inspections - fire extinguisher maintenance and inspection - train and certify on dangerous goods. Mr. Curtis was supervised in this position between 1982 and 1966 by Mr. Bert Gorringe, District Equipment Supervisor. Mr. Gorringe described the major components of the job as being the signing authority for the upgrading, of licences and the training of staff on equipment. He estimated that the former function comprised approximately twenty percent (20%) of the . responsibilities of the position. He further indicated that he had prepared three (3) performance reports in respect of Mr. Curtis in the period March, 1983 to March, 1986. In' each instance, the employee was given an "excellent" performance rating. It was additionally noted on each assessment that Mr. Curtis was suitable for advancement. -lO- A review of Mr. Curtis' application discloses that, unlike the grievor, he had taken several work related courses. These included the following: Hoisting Engineering: Zone Paint 79-101; Key Man; D.D.C./P.D.I.C. Instructor; Zone Paint Refrig.; Propane Plant Op. P3; Health and Safety: Dangerous Goods. He had also obtained a certificate from George Brown College as a Transport ,Driver Trainer. It was not made clear to this Board as to how this education would relate to the position applied for. We are therefore reluctant to give emphasis to it in assessing the relative equality of the candidates. It is clear, however, that Mr. Curtis had previously taken and passed the Winter Maintenance Course previously referred to. He passed the course again shortly after assuming the position here being reviewed. Mr. Curtis conceded .that taking the Highway Equipment Operator 4 position constituted a "demotion" for him. In financial terms, it paid approximately $2,000.00 less per annum. He asserted, however, that he had "voluntarily" applied for such position in that it held better career opportunities for him than did his former job outside of the bargaining unit. As with the grievor, he alluded to the potential advancement available in Fraserville should Mr. Youngman elect to retire. Mr. Gorringe confirmed that Mr. Curtis-may have been "stalemated" in his management position, and similarly expressed the opinion that, in the long term, the Fraserville posting might offer greater potential for advancement. Despite his expressed interest in Mr. Curtis' career, he denied discussing this posting with him. -ll- Mr. Curtis also admitted that at the time of the competition he had lost six demerit points against his Class 'AM' Driver's Licence. He further admitted that this loss had been a topic of conversation between he and his superiors. He testified, however, that he was uncertain as to whether this situation would have prevented him from continuing with his position in the Port Hope Office. Mr. Gorringe indicated in his evidence that he was aware of this development. He stated, nonetheless, that it was not the reason for Mr. Curtis' interest in the Fraserville position. As previously stated, it was the submission of the Union that the competition was flawed in several respects. This Board has therefore.reviewed the various elements of the selection ,process. We state our conclusion at the outset that this position cannot'be sustained. Turning first to the job description', it was argued by counsel for the Union that it was an excessively broad description of the position which did not match the actual day to day needs of the Fraserville job that was posted. It was suggested that rather than utilizing a "generic" job description, the Employer should have prepared a description that was specifically directed at the equipment to be operated at Fraserville. We were invited to conclude that failure to do so in this case may have benefited Mr. Curtis, who had experience on a broad range of equipment, while prejudicing Mr. Moore who had recently worked on the job posted, albeit at a different site. -12- It is the opinion of this Board that the position specifications (Exhibit '3') reflects an accurate appraisal of the responsibilities entrusted to a Highway Equipment Operator 4. While it may be considered "generic" in the sense that it simply refers to Type IB" equipment, as opposed to listing specific equipment used at each location, this would appear to reflect the actual expectations of such an operator. Mr. Eddy in his .evidence stated that this type of equipment was assigned throughout the District in accordance with need. A Highway Equipment Operator 4 at Fraserville would therefore be required to know how to operate such machinery even though i:t might not be housed there on a regular basis. In this way, the job description could be.considered as applying to all such positions within the District. We 'note in this regard that the grievor appeared to agree that Exhibit '3' basically depicted his duties at Newtonville and those that he would expect to perform at Fraserville. Similarly, we cannot find fault with the posting for the Fraserville position. Its wording sets out in a general way what we believe to be the essential duties of the job, that is, operation and maintenance of equipment in the summer season for purposes of highway maintenance, and highway inspection and patrol in the winter season. There was no significant dispute as to the relevancy of the "musts" and "shoulds" isolated by the Employer. The Union next argued that~the questions used in the competition (Exhibit 9), which have been reproduced above, were -13- superficial, theoretical, and unrelated to the job. Counsel suggested that they simply measured "exposure" to the aspects of the job rather than providing for a means to qualitatively assess the relative experience of the candidates. 1; his estimation, the grievor was penalized in that he could not verbalize his responses to the same extent as Mr. Curtis. The Board does not concur with this submission. The questions asked, when compared with the position specifications, would seem to be directed at. the essential elements of the position, these being again, summer maintenance, winter inspection and patrol, with some supervision. While it. is apparent that more of the questions related to equipment used and responsibilities performed in the summer season, this would appear to reflect the realities of the job in that there would be a greater variety of functions performed in that season in contrast to'the winter months. Indeed, the grievor in his evidence admitted that these questions were related to the job performed by the Highway Equipment Operator 4. After a close scrutiny of all the questions, we conclude that they were of such nature as would give the selection panel a means of gauging the relative experience, qualifications and ability of the applicants. When individually analysed, this Board has no doubt that they would require an applicant to provide information based on their experience. In summary, the questions were much more than just a "test of.memory". The Board has had an opportunity to closely revie!w the answers provided by the grievor and Mr. Curtis at the interviews. -14- As stated above, such answers were initially recorded on a separate basis by each of the panel members. The responses were later summarized onto Exhibit '16'. The scores for these applicants, identified through the "ten point must" system with a subsequent prorating of answers, were as follows: Questions Mr. Curtis Mr. Moors Technical Skills (weight of 10) 1. 10 8~ 2. 10 5 3. 10 6 .Leadership Skills (weight of 8) 1. 10 2 2. 10 6 3. 10 10 Total After Weighting 540 points 334 points What is first apparent is that Mr. Curtis provided the best answer for five of the six questions. Both candidates received a score of ten (10) for the sixth question. A review of the respective answer sheets (Exhibits 10 to 15 inclusive), whose accuracy we have no reason to doubt, disclosed that overall Mr. Curtis provided that more comprehensive responses which included substantially more detail than did those of the grievor. The -15- answers, as recorded, also seemed to be more precise and to the point. We note in this regard the evidence given by the grievor at the hearing wherein he conceded that he gave incomplete answers to questions two (2) under Technical Skills and question one (1) under Leadership Skills. lie could not recall why he had failed to give relevant information with respect to the former and admitted that he had provided only a "general answer" with respect to the latter. There would appear .to have been an error made by the panel in respect of question one (1) under Leadership Skills. As shown above, the grievor was accorded a score of two (2) out of ten (10). The panel members had isolated eleven (11) relevant points made by the grievor to that question in comparison to thirty-six (36) made by Mr. Curtis. On the basis of the proration formula used, the ,grievor should have been given three (3) points for such answer rather than two ( 2). Such a change, after applying the weight factor, would se rve to increase his final score to 342 from 334. In view of the wide margin of ,difference, this error in computation we find to be immaterial. The Board has considered the evidence of Mr. Eddy as to what was expected from the applicants in the context of the specific questions, and as to how the answers were scored. We do not find that any material error was made. We believe that in an overall sense, the questions were designed to disclose the candidates "knowledge gained through experience". Similarly, the practice of assigning individual points or ticks for each relevant part of an answer seemed to have been consistently applied. While thk ~___~ -16- use of the "ten point must" system was criticised by the counsel for the Union, we note that it had been used by the panel in & Quinn, 9/78 (Prichard), one of the cases relied on by the Union. We do not find that the use of such an approach served to prejudice one candidate at the expense of the other. It was simply a mechanism employed to permit the panel to gauge the relative status of the applicants. We also are unable to find anything improper in the weighting syst,em used in the competition. There was no evidence presented that would.lead us to conclude that it was applied to skew the competition in favour of a particular 'candidate. Rather, it would seem to reflect the . relative attributes required of the position. What is most significant is that if the weight factor had not been employed, the final scores would have been as follows: Mr. Curtis 60; Mr. Moore 38. This computation takes into account the error in prorating discussed above. This differential could still lead the Employer to reasonably conclude that the two (2) applicants were not relatively equal vis a vis qualifications and ability. The Union also submitted th,at the competition was "fatally flawed" in that the panel did not consultwith the supervisors of the candidates. As noted above, in reaching their ultimate assessment they relied on the applications, the product of the interviews,.and the contents of the personnel files. In view of the recourse had to the personnel files, this case can be distinguished from the situations in Re: Newburn and Phillips, 485, 486/81 (Verity); Re: Brooks, 390/82 (Verity); Re: Alam, -17- 0735/85 (Brandt); and Re: E/lsworth, 361/80 (Jolliffe) where the respective panels had failed to review this source of relevant information. We are inclined to agree with the tenor of the award in Re: Bullen, 113/82 (Samuels) which suggests that it is generally desirable to consult with the supervisors of candidates as part of the selection proces,s. Notwithstanding that this was not done in the competition before us, we have not been persuaded that such failure, in and of itself, should serve to abrogate the decision of the panel. Consultation with the supervisors would likely have disclosed that both candidates were good employees. In the context of that likelihood, and in view of the fact that both individuals had been engaged for lengthy periods in the very position being applied for, we conclude that the insights of the supervisors, had such been obtained, would not have altered the result of the competition. It seems to us that in the kather unique circumstances of this case ,.it was the interview itself that would provide the panel with the necessary information to determine the relative status of the two (2) candidates. We note that a similar conclusion was reached by the Board in Re: Renton and Ross, 1577,1578/84 (Roberts). After considering all of the evidence and argument presented, it is our judgment that the selection procedure was arranged and conducted such that adequate information was generated as to the respective qualifications and ability of the two (2) candidates for the job in question. We find that the process,- in its entirety, allowed the Employer to reasonably -18- conclude that Mr. Curtis was the superior candidate and that a' situation of relative equality did not exist between he and the grievor. Having assessed the two (2) candidates, we are of the opinion that the panel did not err in selecting Mr. Curtis for' the Fraserville position. His superiority was clearly demonstrated in the answers given to the questions posed at the interview. Further, our distinct impression, based on the evidence, is that he has a greater knowledge of, and background with, heavy machinery of the type deployed by the Ministry. We have noted in this regard the fact that the Highway Equipment Operator 4 may be called upon to use equipment which is not regularly stationed at their location. It seems to us that Mr. Curtis' background provided him with an element of flexibility not possessed by the grievor. Similarly, his most recent position as a District Equipment Instructor provided him with an opportun~ity to become well acquainted with the operation, maintenance, and inspection of Ministry equipment. This additional knowledge, when combined with his past experience asa Highway Equipment~Operator, stood to his advantage within the competition. It is also apparent to the Board that Mr. Curtis has the greater supervisory potential. He has previously served as a foreman and has had seven (7) years of management experience, both of which would well equip him for the assumption of supervisory duties. While this element constitutes only five percent, (5%) of the significant functions of the position, we -19- think that Mr. Curtis' strength in the area of supervision reflects his overall superiority in terms of the qualifications and ability which he brought to.the competition. We cannot agree with the suggestion of counsel for the Union that Mr. Curtis was favourably treated in the competition as a result of the Employers desire to lay a foundation for his future career advancement. It is clear from the evidence that the position was not created with that intent. Further, we cannot find that it has been established that the process of the competition was manipulated to obtain a desired result. Similarly, we have not been persuaded that Mr. Curtis' driving record, as it stood at the time of the competition, is a material factor. Mr. Eddy testified in this regard that the long term standard for maintenance personnel was not more than six (6) points. On this basis, Mr. Curtis was deemed to have an acceptable driving record. We are not inclined to interfere with .that judgment. It was mentioned above that this case presented a difficult issue for this Board's resolution. This resulted largely from the fact that both the grievor and Mr. Curtis were qualified to perform the job in question. Both candidates have had lengthy experience with the Highway Equipment Operator 4 position. We wish to make clear that we recognize the grievor's qualifications and ability in this regard. However, in this competition, we have been required to measure the relative abilities of these employees. In such a contest, we find Mr. Curtis to be superbor i -2o- such that the Employer is.not required to give effect to the grievor's greater seniority pursuant to article 4.3 of the collective agreement. In view of the above-stated conclusion, the Board his not called upon to decide whether to put.the grievor into the disputed position or whether a rerun of the competition, with or without conditions, would be more appropriate. The awards in Re: Lethbridse, 603/80 (Barton); Re: Fredericks, 1361/85 (Fisher); Re: Newburn and Philliips (previously cited); and. Re: Zuibrvcki, 100/76 (Prichard), leave to appeal denied (1982), 35 O.R. (2d) 670 (C.A. Ont.), are therefore inapplicable. For all of these reasons, the.grievance is dismissed. Dated at Windsor, Ontario, this 14 day of January, 1988. fjy!</.,.+-: ;I J,..kh M. Watters - Vice-Chairman "I Dissent" (Without Writ- F. Taylor - Member D. Montrose - Member