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HomeMy WebLinkAbout1987-2474.Cooke.91-07-18EMPLOYES DE LA CDURONNE DE L ‘o,vTA~,* CQMMISSION DE SETTLEMENT REGLEMENT . DES GRIEFS IN TNB NATTBR OF AN ARBITRATION Under 2474/87 .TBB CRONN EMPLOYEE8 COLLBCTIVB BARGAINING ACT Before THE GRIBVANCB SBTTLENBNT BOARD BEFORE: FOR THE GRIEVOR BBTNEEN OLBEU (Cooke) -land - I Grievor The Crown in Right of Ontario (Liqour Control Board of Ontario) Employer J. McCamus J. Solberg, H. Roberts Vice-Chairperson Member Member E. Michell Counsel Xoskie & Minsky Barristers 6 SoliCitOr FOR TNE B. Labord EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, StOrie Barristers & Solicitors HEARING August 22, 1988 ,._ . J I 2 . The Grievor alleges a violation of Article 32.4 of the Collective Agreement relating to a competition held for an appointment to the position of Clerk II. This position is an entry level permanent position. The applicants for the appointments made to the Clerk II position in the present competition consisted of some thirty temporary employees. Although the number of appointments actually made in this competition was not revealed in the evidence led by the parties, the Grievor was eligible, on geographical grounds, for consideration for three of the Clerk II positions awarded. The three successful candidates for these positions, Mr. Edward Kernot, Ms. Louise Robinson and Mr. Wayne Wood were served with notice of these proceedings and of their right to participate in them. The three candidates were present throughout the hearing conducted with respect to this Grievance. Article 32.4 of the Collective Agreement stipulates as follows: 32.4 The Boards agree to give consideration to the qualifications and ability of part-time employees to perform the duties of a vacant full-time position and of casual employees to perform the duties of a vacant permanent part-time position, before going outside the bargaining unit to fill such positions. Where in the opinion of the Boards, two (2) or more such employees are relatively equal ' qualifications and abilities, then seniority shall! be the deciding factor in allocating such positions. It was urged on behalf of the Grievor that two separate breaches of this Article occurred. First, it was argued that the Grievor should have been appointed to one of the three positions on the basis of the criterion for appointment set out in Article 32.4. . . . I c 3 On this branch of the Grievance, the relative seniority of the Grievor and the three incumbents is obviously rendered material by Article 32.4. The parties are in agreement that seniority for these purposes is calculated for part-time employees by the number of hours worked. The seniority figures for the three incumbents, on this basis, are as follows: 1. W. Wood 4026.5 hours 2. L. Robinson 2998.5 hours 3. E. Xernot 972.5 hours The Grievor's seniority, calculated on this basis, is 2723.5 hours. Thus, the Grievor plainly has substantially more seniority than Mr. Xernot but less seniority than Ms. Robinson and Mr. Wood. The parties further agree that the proper interpretation of the standard set forth in Article 32.4 would only require the Employer to appoint the Grievor if it held the opinion either that he was clearly superior by a substantial and demonstrable margin to those candidates - Ms. Robinson and Mr. Wood - who have greater seniority or that he was "relatively equal" to the one employee - Mr. Kernot - with respect to whom he has greater seniority. Alternatively, it is argued that the competition itself was so defective that the Employer failed to discharge its responsibility under that Article to "give consideration to the qualifications and ability'! of the Grievor. With respect to the latter point, the Grievor relies upon the substantial body of jurisprudence of this Board which has emphasised, as it did in Q&D and Ministrv of Transportation and Communications GSB 9178 4 (Prichard), in the course of interpreting a similar provision, at pages 7-S: . ..that in meeting the obligations under that article the employer must employ a process of decision-making designed to consider the relative qualifications and ability of the candidate in competition which will ensure that sufficient relative information is induced before the decision-makers in order that they may make their comparisons in the confidence that they will be able to thoroughly and properly compare the qualifications and abilities of the competing applicants At the conclusion of the case led by the Union on behalf of the Grievor, the Employer moved for a non-suit and elected to call no further evidence. Accordingly, it is necessary to consider whether, on the evidence led, the Union successfully established a prima facie case with respect to either branch of this grievance. As might be expected, the parties were in substantial disagreement with respect to the elements necessary to establish a prima facie case and with respect to the extent to which the evidence led in the Present proceeding successfully established those elements. Lengthy written submissions and books of authorities were filed by the Employer in support of the motion, by the Union in response and by the Employer in reply to the Union's submissions. At the hearing, the parties filed an Agreed Statement of Facts (Exhibit 3), which provided a brief account of the background of this dispute. Appended to this document was the job specification for the Clerk II position (Exhibit 4) and a summary of the scoring for the interviews of the thirty candidates interviewed by a SeleCtiOn panel COnSiSting of R.J. Ford, A. Palmerio and D. Carter - 5 (Exhibit 5). The respective scores of the three incumbents and the Grievor were as follows: 1. L. Robinson 49 2. W. Wood 46 3. E. Xernot 49.3 4. J. Cooke 41.7 The three incumbents thus achieved higher scores on the interview than the Grievor. All four of the scores, however, appear to be above the average score awarded to the thirty candidates. The Union put in its case through the testimony of the Grievor and of his immediate SUpeNiSOr, Mr. Wayne Barry who was, at the material time, the Manager of Store 612 in Schomberg, Ontario. Mr. Cooke began working at Store 612 as a part-time employee in July of 1986 and was supervised by Mr. Barry up to and, indeed, beyond the time of the~competition. During this period Store 612 was classified as a 'D' store. ‘D’ stores are, according to Mr. Barry, essentially a "one man operation". At a later point in time, Store 612 was moved up to the 'C' category. A typical 'Cl store has a manager, an assistant manager, a book-keeper and perhaps three or four full-time clerks. When Store 612 was upgraded, Mr. Barry became the Assistant Manager. Mr. Barry's evidence concerning the Grievor's performance as a part-timer at Store 612 was very positive. Mr. Barry is an employee of ten years standing who has broad experience in a variety of different sizes of stores. ,As well, he has had good experience in working with part-time employees in these contexts. Against this background, Mr. Barry rated the Grievor's performance r- 6 very highly. He described the Grievor as a Self-starter who learned the job very quickly. According.to Mr. Barry, Store 612 was a very busy operation and he was therefore unable to devote the time necessary to teach the Grievor all of the various tasks assigned to him. The Grievor was able to figure'things out for himself and was able, according to Barry, to do everything required of him. Mr. Barry testified that during this period, the Grievor performed all of the tasks normally assigned to Clerk II's set forth in Exhibit 4. In addition, however, the size of the operation was such that the Grievor was also required to perform the work of a Clerk 111 - something mentioned by Mr. Barry in one of his evaluations of the Grievor which were filed.as Exhibit 6. Additionally, Barry testified that the Grievor was performing some of the book-keeping functions of a Clerk IV. In Barry's' absence, the Grievor was required to fill in as acting manager. When other part-time staff were brought into the operation, they would typically be supervised by the Grievor. The Grievor, according to Barry, performed all these tasks well. In his view, the Grievor had good product knowledge. He was punctual; he always arrived at work early. His attendance was flawless. Out of the fifty or so part-timers that Barry had worked with, he would rank the Grievor as being within the top ten percent. Mr. Barry was not able to offer much insight with respect to the competition process itself. Two points, however, are of interest. First, it was Barry's evidence that he was not consulted by the selection panel. Second, Barry confirmed that an operations manual was not available in 7 Store 612. Thus, the Grievor was unable to study the manual, should he have determined to do so, prior- to the interview. When asked on cross-examination whether the manual could have been photocopied, Mr. Barry indicated that it was too large a document for this to be a practical alternative. In his testimony, the Grievor confirmed the evidence of Mr. Barry with respect to the range of responsibilities he had assumed in the course of his part-time employment in Store 612. With respect to some items, the Grievor provided a more detailed account of his experience than did Mr. Barry. As well, the Grievor indicated that he had taken a product knowledge seminar offered by the Employer and further, had done some reading on his own on wines and spirits. Further, the Grievor offered evidence with respect to his work experience prior to his part-time work for the Employer. The Grievor had previously worked in .the trucking industry as a claims adjuster, head dispatcher and as a manager for something in the order of a total of ten years. As well, he spent five years as a Supervisor Clerk IV with the ~Gntario Hospital Insurance Plan. In the Grievor's view, this increased his suitability for appointment as he had a good deal of previous experience in dealing with customers and clients. As well, he indicated that he had taken courses in bookkeeping and accounting, human relations, personnel management, public speaking and effective supervision. 8 with respect to the competition itself, the Grievor indicated that he was given about two weeks notice of the interview. He was not given any notice of the nature of the content of the interview nor was he asked to prepare or bring a resume to the interview. When asked whether he took any steps in preparation for the interview, the Grievor indicated that he wanted to consult a copy of a procedures manual but was unable to do so. There was no manual available at Store 612, although one was expected imminently. When asked on cross-examination whether he had considered visiting other stores in the region with the view to looking at their procedures manuals, the Grievor replied that that did not appear to be a practical solution to him. He would not have been allowed to take the manual away with him and, as has already been noted, the manual was said to be too large to make photocopying a reasonable alternative. Moreover, the Grievor indicated that he understood that a manual would be arriving shortly at Store 612. Finally, the Grievor indicated that he did not appreciate that the interview would constitute, in effect, a test on the procedures outlined in the manual. He thought that the interview might involve a more general discussion about his Previous experience and his thoughts about his current work for the Employer. The interview itself involved a series of questions relating to proper procedures for various matters. According to the Grievor, the questions concerning procedures constituted the total .9 interview. Upon the occasion of the interview, the Grievor WAS not given any indication of his evaluation.. Indeed, he testified that he never did get formal notification of the reasons for his failure to succeed in the competition. Mr. Barry asked Mr. Ford to see the Grievor and this task was delegated by Ford to Mr. Carter. According to the Grievor, Mr. Carter told him that he was not successful because he did not attain high enough marks on the interview. Mr. Carter allegedly said that he realized that the Grievor had "more ability" but that this was because he had worked in a smaller store and had more opportunity to do various aspects of the job. The Grievor indicated that Mr. Carter further reported that the selection was made on the basis'of the interviews, the evaluations and seniority. The Grievor further testified that one of the members of the Committee, Mr. Alfie Palmerio was the supervisor of the incumbent Kernot in Store 453. Before turning to consider the legal arguments presented ‘by the parties, we may note that the evidence concerning the Grievor's conversation with Mr. Carter raises more questions than it answers. In what respect was the Grievor allegedly "more able" than any of the other candidates. Did this ability relate to knowledge of procedures and, if so, what was the relationship to that judgement offered by Mr. Carter and the test that constituted the interview? Were Mr. Carter's views shared by the rest of the Panel? Did the Committee take the decision to discount ability and qualifications arising from previous work experience with the Employer and rate 10 the candidates, in this respect, exclusively on the basis of the test score? If so, what would have justified such an approach? Did the Selection Committee consider the. possibility that the Grievor's superior "ability" might be a basis for offsetting or neutralizing his poor performance on the interview'or test and if not, why not? And so on. In short, the explanation allegedly offered by Mr. Carter, if it did indeed represent the thinking of the Committee, does not provide an explanation for the decision which is free of problems. Against the background of this evidence, the Union has argued that the Employer's motion for a non-suit should be dismissed. The Union concedes that it has the initial onus to prove its case. It is further argued, however, that once the Union establishes a & facig case, the onus shifts to the Employer to bring forward evidence justifying the decision it has taken. In the present context, it is argued that that & &G+& case is constituted by establishing that the Grievor was entitled to be considered for the posted position and that he was not properly considered for it. Support for these propositions is drawn from the decision in Be Bridoe and Tank Co. of Canada Ltd, v. United Steel Workers, Local 2537 (1975) 9 L.A.C. (2d) 47 (Weatherill) and on two decisions of panels of the Grievance Settlement Board which have applied an analysis of this kind in the context of job-posting grievances. The issue in Be Bridoe and Tank C 0. concerned a 11 provision in a collective agreement that layoffs would be made on the basis of seniority provided that the employees, "in the opinion of the Company," were "relatively equal". The grievor alleged that he had been improperly laid off in favour of a more junior employee. At the hearing, the union put in evidence concerning the grievor's qualifications, his seniority and established the fact that more junior employees had been retained. No evidence was led with respect to the qualifications of those more junior employees. Notwithstanding the absence of comparative evidence of this kind, the employer's motion for a non-suit was dismissed. The board of arbitration reasoned as follows, at page 49: In our view, once it has been shown (as in the instant case) that an employee is entitled to the benefit of the general dispositive provision of the article, it is then up to the company to bring itself within the proviso, and to sh-ow that, in its opinion the employee in question was not "relatively equal" to those retained. We are of this view not only by reason of our construction of the article but also because we consider it a realistic and proper requirement, in cases of this sort, that the employer, which has taken action with respect to an employee, which has the benefit of a wide discretion with respect to such action, and which alone has knowledge of the grounds on which its opinion was based, be required - the grievor's general entitlement being made out - to come forward and establish the grounds for its opinion. An application for judicial review of this Decision was dismissed by the Ontario Divisional Court. See (1975), 10 L.A.C. (2d) 172. There are at least two decisions of the Grievance Settlement Board in which a similar analysis has been applied in the context of promotion grievances. The facts of those cases are strikingly -‘. 12 similar to the facts of the present case, as is the nature of the evidence led by the Union. In pe Zuibrvcki, v. The Crown in the Riaht of Ontario (The Ministrvof dustrv and Tourism) (1979), 22 L.A.C. (2d) 157 (Adams), the grievor provided evidence with respect to his oun qualifications and his prior experience. Further evidence was supplied by his supervisor who indicated that he had been very satisfied with the grievor's performance and would be prepared to promote him to the position in question. The successful candidates were in attendance at the hearing but were not called by either party nor did they testify or make representations to the board on their own behalf. The employer did not move for a non-suit, but elected to call no evidence. The employer had, however, without objection on the part of the Union, filed a document listing all candidates and their backgrounds and three competition summaries indicating that the grievor had attained the lowest rating in each of the three competitions. In allowing the grievance, the Board stated as follows at pages 162- 163: The presentation of this case by the employer was far from satisfactory. The grievor testified and he called one witness. From this evidence we are satisfied that he made out a rrrcm?+ u case that he was at least equal in ability and qualifications to all of the other candidates in each competition. However, we are not satisfied that he established that he was demonstrably superior in qualifications and ability to any of the other candidates. established his claim, Accordingly, he successfully in a & u way, only in relation to those employees who possess less seniority than he did . . ..In our view, at the conclusion of the grievor's case, the evidential burden shifted to the .employer and these two candidates to explain and otherwise justify the employer's decision. 13 The Board remitted the matter to the parties with an instruction that they fashion an appropriate remedy. - Similarly, in Newburn & PhilliDS v. T e Crown h ontario 485/81 and 486/81 (Verity), this Board held that an evidentiary burden shifted to the employer and to the incumbents to justify the employer's decision at the conclusion of the Grievor's case. In Newburn & PhilliDS, again, no motion of non-suit was made by the employer, but the employer elected to call no evidence. Accordingly, it was thought necessary that the Board should determine whether the Union had established a prima facie case. The Union had put in its case through the evidence of the two grievors who testified with respect to their own qualifications and with respect to their experience of the interview process. As well, several documents were introduced including score sheets for members of the selection committee, total composite scores of each candidate and application fo.rms for the successful incumbents and, presumably, the grievors. As in Zm, the two incumbents were duly notified and present at the hearing. Neither incumbent testified or made representations to the board. In m, the Board determined that the Union had successfully established a & facie case to the effect that the grievors were at least egual.in ability and qualifications to the two successful candidates. The Board noted as follows, at pages 10-11: 14 In our view at the conclusion of the Grievor's case, the evidential burden shifted to the Employer to explain and justify Management's decision. We accept the evidence of the two Grievors in the absence of any evidence to the contrary. The Board offered muted criticism of the employer for it5 failure to provide some evidence "as to the relative 'merits of the qualifications of the successful incumbents, other than that which was available in the form of the application forms and scoring sheets". The Board went on the hold that the Union had successfully established a ~r.&,~a $,&& case in support of the proposition that the competition process itself was defective. Further support for the Union's theory of the shifting evidentiary burden that passes to the employer in cases of this kind can be drawn from &2 Centurv Electronics Ltd, v. Canadian Association of I~&&&al. Mec&&cal wed Workers. (Local u, (1978) 19 L.A.C. (2d) 105 (MacIntyre), a case relied on by the Employer with respect to the scope of review permissible in cases which have, as in the present case, an "ability versus seniority clause" which contains a "company judgement" clause. In that case, the board held, at page 110, that "the onus is first upon the Union to establish that the grievor had the ability to do the job, and was senior". At this point, in the board's opinion, "the onus then shifts to the company to prove that it acted reasonably, honestly and without discrimination or bad faith". The Employer argues, on the other hand, that in order to 15 establish a prima facie case, the Union must lead evidence of the qualifications and ability of the incumbents in order to demonstrate that the grievor is either relatively equal or superior to them. In order to offer convincing support for this proposition, the Employer must demonstrate either that the previous decisions of the Board in Zuibrvcki and Newburn & PhilliDs are inapplicable or that they are wrongly decided. Two arguments have been put forward on behalf, of the Employer to this end. First, it is argued that the decisions in Zuibrvcki and Newbur AlliDS are inapplicable because they deal with situations in which the employer has simply elected not to call evidence. Second, it is argued that there exists a line of previous decisions of this Board which 'are in conflict with these two decisions and that the reasoning .in this conflicting line of authority is preferable to that in Suibrvcki and p w e.. With respect to the first point, we appreciate that this is in fact a distinction between the procedural context within which the issues arose in Zuibrvcki and Newburn & PhilliDs as opposed to that of the present case. Nonetheless, we are not persuaded that this is a material distinction. The Employer argues that where there is simply a failure to call evidence, the adjudicator is entitled to draw a negative inference from that failure, whereas in the context of a motion for a non-suit, such an inference would be inappropriate. We appreciate that the rules of evidence do indicate that a failure to lead evidence may indeed lead to such I 16 an inference and, further, that such an inference would not normally be drawn in the context of a motion for non-suit. Nonetheless, it is our view that negative inferences of this kind do not in fact appear to form a part of the reasoning that leads to the establishment of the prima facie case in either Zuibrvcki, or m. In both cases, the Board adopted the view that an evidential burden shifted to the employer at the conclusion of the grievor's case. In 'our view, it is the employer's failure to respond to the evidentiary burden that has been shifted to it that explains the reasoning of the Board in each case. Neither panel of the Board explicitly refers to the rule of evidence law which permits the drawing of negative inferences and, in our view, if one accepts the shifting evidentiary burden theory, neither is there any reason to do so. We do not disagree with the Employer's submission concerning the nature of the non-suit motion to the extent that it suggests that in a case where the evidentiary burden has not shifted to the Employer, it would be inappropriate, on a non-suit motion, to draw negative inferences from the Employer's failure to adduce evidence. In the present case, however, if a Q&I@ f&& case has been established, there is no need to draw a negative inference from a failure to adduce evidence; the Employer a has simply failed to discharge the evidentiary burden cast upon it by the Union's establishment of the gI;issa w case. The Employer's second line of attack on the shifting evidentiary burden theory is that there is a line of previous 17 decisions of the Grievance Settlement Board which appear to be inconsistent with that theory. This proposition and the cases upon which the Employer relies must be examined With some Care. As will be seen, it is our view that these cases can be reconciled with Zw and Bewbur n&PhillilJs, albeit with some difficulty. Further, we are satisfied that, to the extent that any real conflict exists, we prefer, in general terms, the analysis concerning the nature of the Union's a facie case and the resulting shift in the evidentiary burden adopted in Zuibrvckj, and New ur b. The decisions upon which the Employer relies are eish v. m Cro i ; it0 Labour 139/77 (Swinton); w v/The Co : in Ri of of the Environment)L 52/80 (Jolliffe): Tofano v. The 0 t r'o yininistr, and Trade 478/82 (Kruger) and g e 0 g 0 Co1 848s and Uw v. Ontario Public Service Emulovees' Union (1982)', 7 L.A.C. (3d) 415 (Roberts). In Fish, the only evidence led by the Union came from the Grievor himself. The Grievor testified with respect to his own qualifications and ability and with respect to certain alleged defects.in the competition. The Employer moved for a non-suit and enjoyed success. The Board noted that there was no evidence led with respect to the incumbent's qualifications and that, indeed, I 18 the incumbent was present at the hearing. The Board further noted that although the Grievor's evidence with respect to the alleged inadequacy of the competition was insufficient, a number of statements made by counsel to the Employer in making submissions to the Board indicated problems with the competition procedure that might have been significant. The Board noted that, "Had evidence of such practices been led, the Board might well have reached a different result*. We wish to emphasise that the Board thus indicated a willingness to come to a different conclusion in the face of evidence concerning defects in the competition process, even in the absence of comparative evidence concerning the qualifications of the successful candidate. In w, the only evidence led by the Union was, again, the evidence of the Grievor who provided an account of his own prior experience. As well, he provided an account of his interview, including an account of the fact that when asked a question about the pumps and valves used in the operations pertaining to the job for which he was applying, the Grievor replied that he did not know the answer to the question. The evidence also included the applications of the Grievor and the incumbent. Relying on passages from the Board's decision in &s&, the Board upheld the Employer's motion for a non-suit and concluded that in the absence of better evidence concerning the qualifications of the incumbent, the Grievor had failed to establish a a u case that his qualifications and ability were relatively equal to those of the 19 successful candidate. The applications of .the two individuals constituted "a frail reed" on which to base a relative assessment. There was ,no evidence led in w to suggest that there were any deficiencies perceived by the grievor in the selection process itself. Similarly, in Tofano the principal evidence led was that of t'he Grievor. Although the Union also called the incumbent as a witness in this case, the only question put to him on behalf of the Union concerned his seniority date. Essentially, then, the Union's case was put in through the Grievor. His evidence with respect to his own qualifications wasp held to be insufficient to make a prima facie case of relative equality to the incumbent and accordingly the Employerls motion of non-suit enjoyed success. The Grievor also alleged but did not persuade the Board that there was a significant defect in the procedure used by the Employer in the selection process.. The fourth in this line of the authorities relied on by the Employer is the Minist : case in which of 011 the Grievor was denied an interview in the competition in question. Again, the Union put in its case through the evidence of the Grievor. Counsel for the Grievor had indicated that the thrust of the case "would be that the employer used an unfair or inappropriate selection procedure and as a result, the competition must be re-run". (See page 417). The Grievor's evidence, however, 20 offered little insight into the competition process itself. The Grievor testified with respect to her. own qualifications and indicated that in a conversation with her supervisor after the competition was completed, the latter indicated that he believed that she did not obtain an interview because no clerk at her level had ever been appointed to the position which was the subject of the competition. The jump was, in his view, too great. The Board held that this evidence, together with a letter which simply reported the Employer's opinion that the candidates who were interviewed possessed stronger qualifications than the Grievor was held by the Board to be insufficient evidence to raise a & m case with respect to the unfairness of the competition from a procedural point of view. The Board suggested that it might have come to the contrary conclusion if the Union had led all of the evidence available to it, in particular, the Board noted that the successful applicant could have been called by the Grievor to give evidence w.ith respect to her qualifications and the questions asked or comments made during the interview. Presumably, it was the Board's view that questions in the latter category might have shed some light on the alleged deficiencies in the interview process. Although the result in Ministrv of Colleaes and Universities is consistent with the proposition being advanced by the Employer in the present case, it is of considerable interest that the majority of the panel in that case stated that they came to the 21 conclusion that the Employer's motion for a non-suit should succeed with great reluctance and regret. Further, a vigorous and, in our view, persuasive dissent was filed by the third member of the panel. The majority began its award by stating that, "This is a disturbing case". The majority went on to explain-'as follows at page 416: First, this ruling which we were~-required..&0 make pursuant to the employer's motion does little to promote satisfactory labour-management relations. -Y consideration of what might have been legitimate substantive issues has been thwarted. Secondly, in a job-posting grievance such as the one at hand, the motion for non-suit seems to be little more than a snare to trap the unwary. Most of the facts regarding the selection procedure used in a competition are peculiarly within the knowledge of theemployer and not the grievor who has the burden. In recognition of this, other "representatives of the employer have made what might be called 'disclosure' by calling witnesses, including those who made the selection, so that the board could be informed as to how the competition was conducted and the reasons for which the choice was made": & @Qyg.. . . Given the existence of this practice, counsel for the grievor undoubtedly was surprised by the employer's motion. We are so disturbed by this factor that if we were convinced that counsel for the grievor had elicited all of the evidence reasonably within his grasp regarding the fairness of the selection procedure - and yet failed to establish a prima facie case - we would have been tempted to change the law of the board by shifting to the employer both components of the burden of proof, i.e., burden of producing evidence and burden of persuasion, on the issue of the fairness of the selection procedure established by the employer for failing to post a vacancy. Plainly, the majority felt that it was bound by the previous decisions in &.& and &~yg to come to a conclusion which the majority found quite unattractive on policy grounds. The dissent Was very critical of the reasoning of the majority on three /‘- :.. 22 grounds. First, it was suggested, at page 420, that the majority "while recognizing that the facts regarding the selection procedure used in the competition are peculiarly within the knowledge of the employer and not the grievor, has not taken the next step in shifting the burden to the employez?. Second, the suggestion of the majority that a different result might be warranted in a case where the Union called all of the evidence available to it was criticised on the basis that such a test "would require the parties to enter into an exercise of calling evidence on the availability of evidence. This could lead to no end of problems" (at p. 420). For example, it would not be "appropriate to expect Union counsel to testify as to difficulties in obtaining evidence" (at p. 421). The dissent went on to suggest that, "The more reasonable approach would be, to place the evidentiary burden as to the selection process and the rationale for the decision automatically upon the employer once it has been established by the grievor that she has the skill and ability to do the job in question" (at p. 421). And again, "The union cannot be reasonably expected to subpoena and examine the members of the assessment committee nor to subpoena and examine any other member of management who may have been involved in considering the qualifications and abilities of the applicant. The majority has indicated that the incumbent could have called the successful applicant to give evidence with respect to her qualifications and abilities. However, this would have thrown absolutely no light on the first and primary issue: whether the employer gave the required consideration to the grievor" (at page .-. 23 421). Finally, the dissent criticised the majority's interpretation of the evidence and suggested that the evidence did support the proposition advanced by the Union to the effect that the Employer had not properly considered the Grievor's qualifications and ability to perform her duties. As we have earlier indicated, we find the approach taken by the dissenting opinion in Co lleaes and the reasons for the reluctance expressed by the majority in that case to be quite persuasive. Accordingly, the question this Panel must squarely address is whether we are, in effect, bound by the previous decisions of the Panel in the cases such as Genvs, Fish and Tofano to come to the conclusion so reluctantly embraced by the panel in the Colle e decision. In our view, the line of cases relied upon by the Employer can be distinguished from the previous decisions of the Board in Euibrvcki and Newburn & Phillins, the latter being the cases which adopt the shifting evidentiary burden theory. The first point of distinction relates to the quality of the evidence led by the Union in the two different lines of authority, In the w and Fish line of authority, the only evidence led by the Union, typically, is the Grievor's own evidence with respect to his own qualifications. It is not surprising that previous panels of the Board have been reluctant to come to the conclusion that the Grievor can, out of his or her own mouth, as it were, provide compelling evidence that his or her qualifications are relatively equal to those of the 24 incumbent, there being little or no evidence of the latter's qualifications and ability. In Zuibrvcki, on the other hand, the Grievor's evidence concerning his own qualifications and ability was supported by the testimony of his supervisor who indicated that he had been very satisfied with the Grievor's performance and would be prepared to consider him for appointment to the position in question. In Newbm & Ph&J&s, the Union's evidence included the testimony of both of the Grievors and, as well, something in the order of nineteen documents filed as exhibits. In the present case, of course, there was considerably more than the mere testimony of the Grievor with respect to his own qualifications and ability. His supervisor testified and indicated that he would rank the Grievor within the top ten percent of the many part-time employees with whom he had worked in the past. Given that something in excess of ten percent of the applicants in the present competition enjoyed success, this is evidence which offers significant support for the Grievor's allegations that he was well qualified for the position. Thus, to the extent that a line can be drawn between the Zuibrvcki and Newburn 6 Phil- line of authority on the one hand and the m, && line of authority on the other on the basis of the strength of the evidence concerning the Grievor's qualifications and abilities, the present case falls on the aibrvcki, Newburn h Phillins side of that divide. It has been argued by the,Union in the present case that the -.. 25 presence of a defect in the competition is a further and important factor in determining which of the two.lines of authority are applicable to a particular set of facts. Thus, in Newburn & Phillins, the Board was persuaded that the competition was, in fact, defective and accordingly, was prepared to uphold the grievance. In Fish, on the other hand, where the Employer's motion for a non-suit was upheld, the Board noted that if the existence of defects in the competition.process had been established, the result might well have been otherwise. Our own view is that the presence or absence of a defect in the competition is, indeed, a material consideration in determining whether the Union has made out a prima facie case. Although we appreciate., of course, that "superiority or relative equality" and M'competition defect" are severable grounds for a grievance, we nonetheless think that there can be a relationship between them in the context of a determination as to whether or not the Union has made a prima facie case of superiority or 'relative equality. In the present case, for example, the evidence concerning the Grievor's qualifications and ability are very strong. In attempting to determine whether or not the Grievor has made out a e facie case of relative equality to the incumbent, it may strengthen the Union's case if it is able to show that the strengths of the Grievor's candidacy appear not to have been properly considered by the Employer. We do not wish to suggest that a competition defect must be shown in every case in order to 26 establish a prime- case. Certainly, no competition defect was alleged or found in the Zuibrvcki, case. ,,Rather, we suggest that the presence of such a defect may be helpful as the Union is obliged, in a case of this kind, to establish that the evidence led would, if left unanswered, lead one reasonably to the conclusion that, on the balance of probabilities, the facts supporting the grievance are as alleged by the Grievor. The fact that, for example, material information concerning the strengths of the Grievor's candidacy may not have been considered but, were the procedures appropriate, should have been considered, might assist in tilting that balance in the Union's direction. We turn, then, to consider whether, as the Union alleges, there were defects present in the competition procedure followed in the present case. For present purposes, it is not necessary to review in detail the now very substantial body of jurisprudence of this Board setting out the requirements for a successful competition. We content ourselves with observing that the basic requirements have been set out in a long line of authorities and the basic requirement that information concerning the candidates be gathered in a systematic, appropriate and fair manner, emphasized by the Board in the Q&,~-RR case to which we earlier referred, should be well known to the parties. The Union alleges three separate defects in the competition process. First, it is noted that the selection panel included Mr. Palmerio, who is the supervisor of one of the incumbents, Mr. Kernot. It will be ? 27 . recalled that the Grievor's Supervisor, Mr. Barry, was not a member of the panel. In previous decisions of the Board, the presence of the supervisor of one of the candidates on the selection panel has been identified as being problematic. The potential seriousness of this problem has been emphasized in some awards. In m (Alam) v. The Communi and -Senrices) 735/85 (Brandt), Soci the Board noted in similar circumstances that the presence of one supervisor and the absence of the Grievor's supervisor meant that the' panel had the benefit of certain information concerning one candidate which it did not have in respect to other candidates. The Board went on the say, at page 10, that "that fact alone is sufficient to justify our conclusion that the competition was fundamental1.y flawed". See also, OPSEU (Eaton)- v. T e C ow n hg Tg 629/85 (Connaught). We need not consider whether the presence of one of the cand,idate's supervisors on the selection panel is a defect which could be cured by adequate consultation of the supervisors of all candidates for in the present case, the evidence is that the Grievor's supervisor was not consulted by the selection panel. Further, we need not consider whether the presence of one of the candidate's supervisors on the committee is invariably a fatal defect. We limit ourselves to the observation that where one supervisor ispresent, efforts must be made to ensure that other tandidates are not handicapped by this fact. i . 28 Second, the Union argues that the panel relied virtually exclusively on the results of the interview to make its determination. In the Eaton, Q&iz@ and pewburn h PhilliDs cases, all of which have been referred to above, the Board has stressed that exclusive reliance on the interview itself is a significant defect in the process. The facts of the present case, we might add, demonstrate the common sense underlying that proposition. The evidence led by the Union strongly suggests that the interview was conducted essentially as an examination on approved procedures. The Grievor has testified that the authoritative source of such information, the procedures manual, was not available to him. For reasons such as this, the interview itself may not provide completely authoritative evidence with respect to the qualifications and ability of a particular candidate. In our view, however, the evidence led by the Union follows short of establishing a - m case that the Employer relied exclusively on the interview itself in making its decision. The very hearsay evidence which the Union relies on to establish to establish the importance the score on the interview - that is, the Grievor's evidence with respect to his conversation with Mr. Carter - also suggests that some other information was considered. Certainly, however, this evidence does raise a suspicion that the interview score loomed very largely, and perhaps excessively, in the deliberations of the selection committee. The third defect alleged by the Union which was said to be t 29 related to the second is that the selection committee did not consider other relevant information necessary to the making of an informed decision. Here again, the evidence led by the Union does not go so far as to establish this proposition. As with the second alleged defect, we are satisfied that the Union has raised evidence of suspicious circumstances, but has not gone so far as to demon&rate that the panel did not, on the balance of probabilities, consult relevant sources of information. The one clear failure on the part of the selection committee in this regard, of course, is the failure to consult the Grievor's supervisor. Though it is not necessary for us to reach any conclusion as to the severity of such a defect as a general proposition, we do note that the failure to consult supervisors is a~ factor .which renders substantially more serious the defect .arising from the fact that Mr. Palmerio, the supervisor of Mr. Eernot, was a member of the selection committee. In summary, then, we are persuaded that the Employer's motion for a non-suit should be dismissed. In reaching this conclusion, we have been obliged to choose between the two lines of authority found in the previous decisions of this Board represented, on the one hand, by the decisions in Zuibrvcki and Newburn & Phillios and, on the other, by decisions such as those in u and Genvs. We have come to rest on a preference for the applicability of the former line of authority for a'number of reasons. First, in carefully looking at the factual distinctions that can be drawn 30 between these two lines of authority, we think the facts of the present case - more particularly, the strength of the evidence led by the Union with respect to the Grievor's qualifications and abilities and secondly, the presence of a significant defect in the competition process - suggest that the facts of this case are rather more like those before the Board in the Juibrvcki and n and Phw cases. We confess, however, to some diffidence about the exercise of attempting to reconcile these two lines of authority. To the extent that one must choose between them, we have indicated earlier that we favour the approach taken . . in Zuibrvcki and pewburn and Phw to that adopted in the other authorities. Our reasons for this preference are consistent with the views stated both by the majority and by the dissenting member of the panel in the Colleaes and Universities case. In our view, the Union should not be properly considered to be under a burden to call, as its own witnesses, an incumbent party or various members of the management team who may have participated in the selection process. The whole point of a rule imposing a shifting evidentiary burden is to avoid the necessity of one party being required to call, as its own witness, a party opposite in interest or one of such a party's senior officials. Accordingly, we share the Views expressed in Juibrvcki and prewburn & PhilliDs to the effect that once the Union establishes a u M case, the evidentiary burden shifts to the Employer. Finally, as the result of the foregoing analysis is that the 31 grievance must enjoy success, we must consider the question of the appropriate remedy. A number of factors are relevant to this question and, again, extensive submissions were made by counsel for both parties on this point. First, we note that, as in Zuibrvcki, we are not persuaded that the Union has established a prima facie case that the Grievor is superior by a substantial and demonstrable margin to thosq candidates - Ms. Robinson and Mr. Wood - who had greater seniority than the Grievor at the time of the competition. We are satisfied, however, that a prima facie case of relative equality to the incumbent with lesser seniority, Mr. Kernot, has been established. We note, further, that the principal defect identified in the competition process, the presence of Mr. Palmerio on the selection panel, is one which relates to a possible advantage br apprehension of bias with respect to the candidacy of Mr. Kernot. For these reasons, we believe that the remedy.should be focused on the competition between Mr. Kernot and the Grievor. We are persuaded by the submissions of counsel that the possible remedies available to the Grievor in a case of this kind includes both a rerunning of the competition and, alternatively, the awarding of the position to the Grievor by order of this Board. Accordingly, we have given much consideration to the question of which of these two remedies is the more appropriate in the present circumstance. A number of factors have led us to the conclusion that the appropriate remedy in the present case would be to order a rerunning of the competition between the Grievor and Mr. Kernot. First, we note that in previous cases, the remedy of awarding the position appears to be only granted in unusual circumstances. Thus, in w, the Board had before it sufficient evidence to reach a conclusion on the merits. In other cases, such as Zuibrvcki v. The Crown in the Riaht of Ontario (‘ihe Ministrv of ZJldustrv and- 100/76 (P&chard), (m No. 2) the very same matter had previously been remitted to the parties for . resolution without success. In other cases, as is stated in u, referred to above, at pages 11-16, the Board has awarded the job in cases where there has already been a determination on the merits which is favourable to the Grievor or where, having regard to the conduct of the Employer, there is reason to doubt that a fair competition could be conducted were one to be ordered. None of these factors are present in the current circumstance. Further, in making a choice between a rerunning of the competition and the awarding of the position, we note that the Union placed considerable reliance.on the defect in the competition as a basis for distinguishing the && and m line of authority. In a case such as the present, where a problematic competition is an important factor in the decision upholding the grievance, a rerunning of the competition appears to be the more appropriate remedy, in our view. Assuming, then, that the parties are unable to resolve their differences otherwise, we order that the job competition be rerun subject to the following restrictions: A. B. C. D. 33 The position need not be posted again. Only the Grievor and Mr. Kernot should be considered as candidates. A new selection committee must be constituted, consisting of no members of the previous committee. The new committee is free to develop whatever-procedures and questions it deems appropriate within the parameters of Article 4.3 and this Board's jurisprudence. As far as is possible, the selection committee should design its process so as to avoid conferring an advantage on Mr. Kernot asa result of the knowledge he may have acquired since assuming the position which was the subject of the competition. The Board retains jurisdiction with respect to any points of difficulty that may arise in the implementation of this Award. Dated at Toronto this ,+gthday ofse&y. '., 1991. "I Dissent" (dissent attached) J. Solberg (member) @&&- I H. Roberts (Member) . Dissent by: Janet Solberg Union Nominee Re: Ontario Liquor Boards Employees’ Union (Cooke) and the Liquor Control Board of Ontario (#2474/87) ____-__---_---_-------------------------------------------------- I find this decision troubling for many reasons. First _ The award notes the agreement by the parties that the proper interpretation of the standard set forth in article 32.4 requires appointment of the grievor to the job if he is “relatively equal” to a more junior employee. The award then comes to the conclusion (rightly, I believe) that the Union made out its prima facie-case. based on the evidence of the grievor and his supervisor, that the grievor had the ability to do the job and was (at least) relatively equal in that ability to the more junior employee who was one of the successful applicants. But, says the award, despite this finding, the Board will not require the Employer to appoint the grievor to the job. Second. The award determines that the Employer failed to discharge its responsibility under article 32.4 to “give consideration to the qualifications and ability” of the grievor. The award then comes to the conclusion (rightly I believe) that there were significant defects in the competition namely, that the selection panel included a supervisor of one of the (successful) applicants; that the selection panel failed to consult the grievor’s supervisor; and that the selection panel relied very largely (perhaps excessively) on the results of the interview to make its determination. But again, says the award, despite this finding, the Board will not require the Employer to appoint the grievor to the job. Third _ On the basis of all the analysis and after a careful and thoughtful review of the jurisprudence, the award dismisses the Employer’s motion for a non-suit. And moreover, in so doing, clearly establishes the merits of the grievor’s position and raises an apprehension of bias with respect to the Employer’s ability to carry out an impartial competition. But once again, despite this finding, the Board will not require the Employer to appoint the grievor to the job. Well, I don’t know where that Ikind of thinking leads. Is the Board suggesting that these findings are only procedurally relevant? That they are to be relied upon only to shift the 1 evidentiary onus? That the conclusions reached have no meaning beyond merely determining the legal question of the non-suit? It’s true that awarding a contested position to a grievor only happens in unusual circumstances. It happens when the Board has the evidence necessary to reach a conclusion on the merits or... where, having regard to the conduct of the Employer, there is reason to doubt that a fair competition could be conducted were one to be ordered. I think that both criteria have been met in this case and explicitly argued in the award itself. Finally. This Employer knowingly took a “risk” by launching a non-suit and not calling any evidence. The Employer expected this Board to find that the Union had not made its Br-i-m.% _. f,a~cai..e.. Casey, that is, that the Union failed to prove that the grievor was, at least, relatively equal to the more junior employee. The risk, in such a situation, was that if the Board concluded that the Union hadmade its prima facie-case, it would then award the position to the grievor consistent with the proper interpretation of the collective agreement. But, the remedy proposed effectively nullifies any real risk. If the Employer had called aaits evidence and lost, then the 8oard might have ordered another competition. This Employer called no evidence and lost, and the result is the same. That’s no risk. That’s an open invitation for more of the same lkind of unyielding and unhelpful behaviour by an Employer which does no credit to labour relations or to the arbitration process. In the end, the Union did all that was required. And up to the point of remedy, the Board’s decision confirms every aspect of the Union’s position in a systematic and thorough manner. But the remedy itself, seems to me to have little basis in logic or fairness. And with the passage of time, little relevance, as well. With great respect, the Board’s ultimate decision also does no credit to the arbitration process. 2