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HomeMy WebLinkAbout1998-0936.Sam et al.00-02-24 DecisionONTARIOEMPLOYÉS DE LA COURONNE CROWN EMPLOYEESDE L’ONTARIO GRIEVANCECOMMISSION DE SETTLEMENTRÈGLEMENT BOARDDES GRIEFS 180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TÉLEPHONE,(416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8FACSIMILE/TELECOPIE:(416) 326-1396 GSB # 0936/98, 0937/98, 0938/98, 0939/98, 0942/98, 0943/98 OLBEU # OLB346/97, OLB319/97, OLB320/97, OLB318/97, OLB295/97, OLB262/97 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Liquor Boards Employees Union (Sam et al) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Nimal V. DissanayakeVice Chair FOR THE Julia Noble GRIEVOR Counsel Ontario Liquor Boards Employees Union FOR THE Alison Renton EMPLOYER Counsel Liquor Control Board of Ontario HEARING January 5, 1999 April 27, 28, 1999 May 6, 7, 1999 September 14, 15, 21, 22, 28, 1999 November 26, 1999 January 11, 12, 2000 DECISION At the commencement of this proceeding I had before me nine job competition grievances arising out of a job posting and competition. However, at the hearing on April 27, 1999, I was advised that grievors Abdool, Bhatia and Doiron had withdrawn their grievances. That left for determination, the grievances of George Everest, Ted Felora, Barry MacKay, Dave Patterson, Doug Sam and George Velentzas. Their grievances relate to a posting (File CR157/97) for 40 vacancies for Full-Time Customer Service Representative (CSR) positions in Area A (Toronto). It is common ground that these vacancies arose as a result of the application of a Letter of Agreement on Permanent Vacancy Review, which inter alia, required the declaration of a vacancy and posting, where a casual employee had worked 1,700 hours or more in a retail store. The posting in question was dated May 26, 1997 and had a closing date of June 16, 1997. The preamble to the posting reads: Under the general supervision of the Manager, you will provide prompt, courteous and knowledgeable customer service in accordance with the Customer Service Standards of Excellence, participate in and comply with corporate initiatives as made mandatory (e.g. PKCC levels, SMAART), keep abreast of and 3 participate in timely execution of Ready for Business and Retailer of Choice Standards, receive, handle, store and rotate stock in orderly, systematic and safe manner; adhere to Occupational Health and Safety, WCB and WHMIS guidelines; support and contribute to a harmonious and productive work environment, follow security procedures of LCBO funds, stock and properties, exhibit ability to operate computerized systems and interpret financial information, promptly and accurately complete all store reports and records; be prepared to work extended hours based on operational requirements. The following was listed under AQualifications@: Position requires tact, diplomacy, good oral and written communication skills, ability to maintain and contribute to positive interpersonal relations with customers, LCBO employees and trained representatives, mathematical, clerical and accounting skills, ability to operate computerized terminals (office or cash register terminals), good knowledge of cashiering and security procedures, initiative and reliability, ability to work with minimum supervision and routine checks, ability to meet the essential physical requirements of the job, general knowledge of products and services offered by the outlet and by the LCBO which may include servicing of licensees and agencies in a socially responsible manner. You should also demonstrate an awareness of and support the LCBO strategies including Customer Service, Excellence, that=s The Sprit, and Ready For Business Standards. You will have successfully completed product Knowledge Level II and working towards Product Knowledge Level 3. The posting also stated: PLEASE NOTE: -The area of search will be the geographical posting area. -A Q-35 Form must be submitted with your store number or department number. Employee 4 identification number and the appropriate posting number accurately recorded. -Qualified PPT candidates will be selected in accordance with the procedures under Article 21 of the Collective Agreement. -Candidates from Casual status will only be considered when there are no qualified Permanent Part-Time Employees. -Casual candidates will be selected in accordance with the procedures under Article 31.4 of the Collective Agreement. -Candidates must meet the following minimum criteria in order to be considered: a) Past satisfactory work performance; b) Satisfactory discipline and attendance records; c) French language services requirements where applicable. -Casual candidate qualifications will be determined through a process consisting of a scored interview and scored past performance appraisals. -A circular will be issued announcing the successful candidate. The posting was open to all permanent part-time and casual employees of the LCBO=s store system in Area A. Three permanent part-time employees were offered positions in priority as contemplated by the collective agreement, leaving 37 vacancies to be filled through a competition among casual employees. Approximately 230 casual employees applied. As required in the posting, a form known as the AQ-35" was used to make application. This form, titled AApplication for Posted Vacancy@ is extremely 5 brief and has space only for the employee name, date, present position, store and Department, status (Permanent Full-Time, permanent part-Time, or casual) and Social Insurance Number, and is to be signed by the applicant. Once the posting closed, the Human Resources Dept. screened the applicants for interviews. One applicant was denied an interview because he had not completed the pre-requisite AProduct Knowledge II@. He did not grieve. Several applicants were denied interviews on the basis of their active discipline on file. Two of them grieved, namely grievors Patterson and Velentzas. The employer selected 59 applicants to proceed to the competition, which consisted of a scored oral interview and a scoring of the 2 most recent performance appraisals. Through this process the 37 positions were filled. Grievors Everest, Felora, Mackay and Sam participated in the competition but were not successful. They had more seniority than some of the successful candidates, and grieved alleging that the employer had contravened the collective agreement. The successful candidates (incumbents) were provided notice of this proceeding as required by law. Some attended hearings more regularly than others. Some did not attend at all. The 6 Board made it clear that each incumbent was entitled to fully participate in the proceedings as a party, with or without counsel. Of those attending, some participated actively, while others were mere observers. None of the incumbents testified and none called any evidence. The governing provision in the collective agreement is article 31.4(b) which reads: The Employer agrees to give consideration to the qualifications and ability of casuals for permanent full-time vacancies at the entry level in their geographical area, provided that no permanent part- time employees have applied. Where qualifications and ability are relatively equal, seniority shall be the determining factor. The union made a two pronged argument. First, it pointed out that there was substantial similarity between the duties and responsibilities of a casual CSR and those of a full-time CSR. All of the applicants had performed the duties of a casual CSR. In the circumstances, it was argued that as long as the applicants passed the initial screening (which recognises the absence of any major concern and the presence of all pre- requisites) they should be all deemed to be qualified and relatively equal in qualifications and ability. That being so, the argument went, there was no justification or need for any further interview process, and the positions should have been 7 awarded on the basis of seniority alone. On this basis, the union urged that the Board order that the positions be awarded by order of seniority, to those applicants who passed, or should have passed, the screening. In the alternative, the union takes the position that the competition process conducted by the employer was fundamentally flawed in a number of ways and did not comply with article 31.4(b). The union contended that the results of such a flawed process ought not be allowed to stand, and sought an order that the competition be re-run. Initially the union had taken the position that in the past the employer had followed a practice of awarding full-time CSR positions to casual employee applicants on the basis of seniority alone, and that it was estopped from changing that practice for this posting. However, during the course of the hearing, union counsel advised the Board that the union would not be pursuing that argument, without prejudice to its right to raise it in other cases. Article 31.4(b) is what is commonly described as a Arelative equality@ clause, as opposed to a Athreshold ability@ 8 clause. In the latter type, once applicants are found to meet a threshold or minimum level of ability and qualifications, seniority determines who among them are entitled to the available vacancies. On the other hand, in the face of a relative equality clause, the employer must not only determine whether the applicants meet a threshold standard, but it must also determine whether the applicants are relatively equal in ability and qualification. This determination includes an inquiry as to whether there is a substantial and demonstrable difference in qualifications. Re Vaillancourt, 1120/87 (Wilson). Seniority becomes a determinative factor only among those applicants found to be relatively equal. The screening process undertaken by the employer was intended initially to weed out those applicants who did not meet the threshold level of ability and qualifications. Under a relative equality clause, once a pool of minimally qualified applicants is established through the screening process, the employer next has to assess the relative abilities and qualifications among those applicants. The union=s argument is that the employer should have gone from a determination of threshold ability, to an awarding of positions on the basis of seniority. That would be to treat 9 article 31.4(b) as a threshold ability clause, which it is not. Conducting interviews is one method open to the employer to gather the information about the applicants= abilities and qualifications for purposes of determining relative equality. Review of the applicants= personnel files, performance appraisals, resumes and references and consulting their supervisors, are some of the other important sources of such information. Provided they are conducted in a fair and reasonable manner to elicit relevant information, interviews are a useful and a legitimate tool available to an employer in determining relative equality. The evidence does support the union=s assertion that there are substantial similarities between the full-time and casual CSR duties and that all of the applicants had worked as casual CSRs. However, the evidence also indicates that some applicants had been exposed to a broader range of CSR duties than others. Some had worked as CSR for a longer period than others, and had greater experience. Therefore, the employer was entitled by article 31.4(b) to determine who among the applicants were relatively equal in qualifications and ability, and who were not. The employer was not precluded from resorting to oral 10 interviews as one method of gathering information required to make that determination. For the foregoing reasons, the Board finds no merit in the union=s position that the employer should have awarded the positions to the applicants who passed the screening, on the basis of their seniority. That would be tantamount to ignoring the relative equality language in article 31.4(b). See, Re Netta et al, 1404/97 etc. (Mikus) Therefore the Board turns to consider the union=s alternate argument that the competition process conducted was so fundamentally flawed, that the results generated thereby should not be allowed to stand. The competition process The evidence is that the employer had concerns that job postings involving promotion of casual CSR=s to full-time CSR positions, were being conducted inconsistently in the various areas and regions within the province. With the inclusion of the Permanent Vacancy Review Letter of Understanding in the 1996 collective agreement, it was anticipated that a substantial number of such vacancies would have to be posted. Therefore, the 11 employer devised a new recruitment process to take effect in 1997 for the filling of vacancies that result from the application of the letter to casual hours worked in 1996. The basic goal was to have a process that would be applied consistently in all locations within the province. A number of documents were prepared setting out the new process. Mr. Wayne Zachar, Director of Employee Relations, was closely involved in the creation of this new recruitment process. He testified about how the new competition process was intended to be implemented. The basic steps in the Process are set out in a document titled ACustomer Representative Recruitment Process@, as follows: STEP 1 Post Vacancy STEP 2 Screening Process Eligible candidates= discipline, attendance and performance appraisal records are reviewed. Must have satisfactory discipline, attendance and performance appraisal or are screened out. STEP 3 Interview process Determine the number of employees to be interviewed by ranking in seniority order and using between a 3-1 and 2-1 ratio. Look for gaps in seniority, where possible. Interview using bank of CSR questions. 12 Weighting of performance appraisal will be 40%. Weighting of interview will be 60%. STEP 4 Determination of Successful Candidate(s) Overall pass mark will be 50%. Relatively equal spread will be 20%. Rank in order of overall score. Promotions are granted to the senior employees within the 20% spread. STEP 5 Not Enough Successful Candidates Continue down the list and interview until all potential vacancies are filled. Do not advise candidates of outcome until ALL interviews are completed as the successful candidates may change. STEP 6 Prepare Applicable Documentation to Process promotions/Appointments With regard to Step 2, Mr. Zachar testified that Asatisfactory discipline@ meant that if there was active discipline on an applicant=s personnel file, management must be satisfied that it was not serious enough to disqualify the applicant, and that each case had to be decided on its own merits. Mr. Zachar testified that the employer decided to review 13 attendance records because regular attendance was a necessary qualification for a full time CSR. Similarly a review of performance appraisals was seen as a useful tool in assessing an applicant=s qualifications for the vacant position. It was decided that only the two most recent appraisals on file would be considered because that would provide Aa more balanced picture of his performance.@ The two appraisals were to be scored out of a maximum score of 25 points. The two appraisals were weighted at 40 percent, of the total score for the competition, while the balance 60 percent was allotted to the oral interview process. Recognizing that different appraisal formats were used to evaluate casual employees, the employer devised two rating scales. Where an appraisal form had evaluated areas of competency with a five point rating scale, points were assigned as follows: 1.AOutstanding@ = 1 2. = .75 3.AMeets Requirements@ = .5 4. = .25 5.AChange Required@ = 0 Where a form evaluated areas of competency with a four point rating scale, points were assigned as follows: 14 1.AMore than meets requirements@ = 1 2.AMeets Requirements@ = .75 3.ADevelopment Required@ = .25 4.AUnsatisfactory@ = 0 Areas of competency were allotted different weights, depending on the employer=s view of what areas were more important. For example, Acustomer service@ was weighted higher than Aappearance= or Asafety and protection of LCBO assets@. Mr. Zachar testified that in reviewing appraisals, the process did not take into account anything other than the scores assigned by the appraiser to the listed areas of competency. Comments written out by the appraiser in the comments section of the appraisal were not to be given any consideration because, in his view, such comments Amerely substantiated the scores given@. Where a AN/A@ (not applicable) was marked for an area, the applicant got a zero for that because the N/A indicated that the employee had not performed that particular function or skill. When asked why applicants= resumes were not reviewed, Mr. Zachar replied, AIt was felt that for this type of competition it wasn=t appropriate - that it will give an unfair advantage to persons more skilled in preparation of resumes.@ 15 With regard to Step 3 in the process, the interview, Mr. Zachar testified that 3 to 1 and 2 to 1 ratios were used to limit the number of initial interviews, because it was not useful or practical to interview everyone who applied. A bank of questions was put together for use in these interviews, although Mr. Zachar did not know who prepared those questions. He stated that the typical interview panel was to consist of two members from operational management and one from the Human Resources Dept. Mr. Zachar was involved in the decision to assign 60 percent of points in the competition to the interview and 40 percent to the two performance appraisals. The percentages were assigned based on the management=s view of the relative value of an interview and a review of performance appraisals. The minimum percentage required to be qualified was set very low at 50 because management recognized that some employees may not interview well and that appraisals may be subjective depending on the relationship between the employee and the supervisor doing the apprisal. Referring to Step 4, Mr. Zachar explained how the 20 percent spread for relative equality was to be applied. Once the highest scorer in the competition was determined, the scores of 16 every applicant who had more seniority than the highest scorer were to be compared to determine whether their scores came within 20 percent of the highest score. All applicants within 20 percent of the highest scorer are awarded positions by seniority. Next, if vacancies still remain after this process, the highest scorer is awarded a position. At this point the highest scorer goes out of the picture. The next step is to determine who the second highest scorer was, and he now becomes the comparator. All applicants not yet awarded positions, and who are more senior to that second highest scorer, are compared. Those scoring within 20 percent of that second highest scorer are awarded positions by seniority. If at the end of this process vacancies still exist, the second highest scorer will then be awarded a position. Next the third highest scorer, becomes the new comparator and this process is carried out until all of the available vacancies are filled. If at the completion of this process, not enough qualified applicants are found to fill the available vacancies, additional interviews were to be scheduled under Step 5. The alleged flaws in the process The union submitted that the employer failed to gather all relevant information required to properly assess the applicant=s 17 abilities and qualifications. Instead, the employer relied solely on interview scores and a numerical conversion of just 2 performance appraisals for each applicant. According to the union there was much more useful and relevant information easily available to the employer which it ignored. The union took issue with the fact that the employer only considered the last two performance appraisals on file. The employees= personnel files contained much more information, which was directly relevant to ability and qualifications. As examples, the union pointed out that the grievors had more than just two appraisals on file. Some of the appraisals not considered, had very high ratings as well as very complementary comments by the appraiser, which reflected positively on ability and qualifications. Even in the 2 appraisals reviewed, the employer ignored comments made by the supervisors. The personnel file of one grievor contained a letter of commendation written by the District Manager. This received no consideration. In addition, the employer did not review any resumes. The union pointed out to the evidence that the employer policy required that performance appraisals be conducted on each employee annually. This had not been done. As a result, some 18 of the applicants had appraisals on file covering 1996 and 1997. Others did not. Their two most recent appraisals on file included 1994, 1993 or even older appraisals. As a result some had their performance some years ago scored, while others had their recent performance scored. The time period assessed for various employees was different. The union pointed out that one incumbent, D. Leet, was assessed on the basis of his 1991 and 1992 appraisals. This inconsistency resulted from the employer=s failure to comply with its own policy which required annual appraisals. The union further took the position that the weighting for the review of the 2 appraisals was inappropriate, and that the resulting scores failed to reflect the level of performance indicated in the appraisals. The weighting resulted in unreasonably low marks. For example, where an employee received a score of 3 for an area of competence in a 5 point grid, according to the legend in the appraisal form itself, that indicated that the employee was Asatisfactory@ or Amet requirements@ in that category. Yet the employer assigned only a 50 percent score for that. Pointing out that the appraisal scores accounted for as much as 40 percent of the total marks in the competition, the union submitted that penalizing an employee 19 who is performing satisfactorily by deducting 50 percent of the full mark was unreasonable. Counsel reviewed a number of cases where the process resulted in a failing score for the employee=s appraisals, i.e. less than 50 percent, even though the appraisals gave a rating indicating that the employee met requirements. In other words, the supervisor doing the appraisal had concluded that the employee was performing satisfactorily, but under the scoring system used, that employee gets a failing grade. The union took serious issue with the weight of 60 percent assigned to the interview. In the union=s view, that over- emphasized the value of a 2 hour interview, in evaluating an employee=s qualifications and ability. This was more so when much more reliable information was ignored. According to the union, information on file about the applicant=s actual job performance should have received greater emphasis than interview scores, specially because the posted positions were substantially similar to the ones held by the applicants. It was specifically pointed out that no resumes were reviewed and supervisors were not consulted. As a result there was no consideration given to the applicant=s past experience. 20 The union also took the position that the scoring of the interviews by the 3 panel members was inconsistent and subjective. Many examples were given of situations where one or more members credited an applicant for providing a suggested answer, while others did not. Counsel pointed to other alleged defects. One of the panel members testified that 2 hour was not enough to interview an applicant. Different questions were assigned different marks, but the applicants were not made aware of that. Counsel also characterized as Aproblematic@, the evidence that the total marks for the applicants interviewed on the first day had been erased and changed by one of the panel members, after the marks given by the 3 members had been tallied and averaged. The panel member who did the change could not recall exactly when and why that was done. Denial of interviews to two grievors As noted, grievors Patterson and Velentzas were screened out and were denied interviews. The onus is on the employer to demonstrate that the screening was done in a fair and reasonable manner. See Re Quan, 1797/91 (Gorsky). Ms. Heidi MacNeil, a HR Assistant in the Central Region Office, testified about the screening process for discipline. Ms. MacNeil sent to each 21 District Manager in the region, a list of employees from their district who had applied pursuant to the posting. On June 23, 1997, she wrote to the District Managers requesting them to Areview your list and notify me if any of your employees have discipline that should disqualify them from getting an interview.@ The evidence is that Ms. MacNeil was acting on the instructions of Ms. Yolanda Simone, Manager of Human Resources for Central Region. Ms. Simone testified that the personnel files in the Human Resources Dept. were incomplete with regard to employee discipline, and that this necessitated the contacting of District Managers to get that information. Under cross-examination Ms. Simone agreed that there was no document or criteria outlining how applicants were to be screened for discipline. The district managers were given no instructions as to under what circumstances discipline will disqualify an applicant. However, she stated that Aeveryone knows what to do with discipline, it=s the same as it has always been@. When asked what that process was that everyone knew, she replied AYou can=t look at discipline beyond 3 years. If there is discipline within the last 3 years, the manager has to decide if that discipline is relevant, how old it is and how severe it is. That is basically a call for the District Manager to make.@ 22 She emphasized that the District Manager only makes a recommendation, which may be accepted or rejected by the Regional Director who had the final decision on whether to screen out an applicant because of discipline. The employer prepared an Eligibility Review List, which inter alia, sets out the results of the screening for discipline. Of those applicants who otherwise had the seniority to receive an interview, 10 had discipline within the previous 3 years. The outcome was as follows: Employee Linda Wisniewski Discipline on file - Written reprimand July 27/95 re altercation with D. Hildebrande Supervisor recommendati -on Mike Stephens requests discipline be waived as employee has shown improvement Regional Director=s decision Recommendati -on accepted Ted Felora- 1 day suspension November 22/95 re failure to report for scheduled shift - Written reprimand August 31/94 re leaving store prior 23 to end of shift and improper cashiering procedures Mike Stephens requests discipline be waived as employee has shown improvement Recommendati -on accepted Dave Patterson Written reprimand re incident of July 3/96 - employee mistook customer as a former shoplifter and banned from store Ursula does not recommend Recommendati- on accepted Colin EnricoWritten reprimand dated October 13/95 re failure to report Not recommended by G.B. Recommendatio n not accepted interview granted George Velentzas 1 day suspension May 19/95 re altercation with another employee Ursula does not recommend Recommendatio n accepted Bill Tilley Termination re theft reduced to suspension (August 12 to October 20/96) via M.O.S. Mike does not recommend 24 Recommendati -on accepted Robert Saliba suspended 5 working days November 11- 16/96 re physical altercation on November 9/96 Outstanding M.O.S. allowing application for promotion Recommendati- on accepted Susanne Scarcello Written reprimand December 21/94 re missing envelope Gerry would not recommend Interview granted Recommendati- on not accepted Joe Perciasepe Written reprimand February 15/96 re inappropriat e behaviour toward asst manager and other staff and 3 counsel letters in 1996 Paul does not recommend Recommendati- on accepted Kenneth French Written reprimand dated September 22/95 re failure to report Doug recommends Ken be included - employee is on EAP and is showing progress Recommendati- on accepted 25 Debra Companaro Written reprimand dated December 12/94 due to failure to report Doug recommends Debra be included in competition Recommendati- on accepted Ms. Harfman testified about her own decision, as District Manager, to recommend that grievors Patterson and Velentzas be not interviewed. In chief, Ms. Hoffman was asked why she made that recommendation for grievor Patterson. She replied AHe had a poor rating in two columns in the appraisal and I didn=t recommend that he be allowed to compete. There was also a reprimand on file. I had also met with him and his manager previously about his overall performance in cashiering@. She reviewed Mr. Patterson=s performance appraisal dated September 30/96. She testified that it had a A4" for communication, relationship and knowledge of operations and a A5" for punctuality and attendance, and that it caused her concern because that was below the standards expected. When asked what Mr. Patterson=s reprimand was about, Ms. Hoffman stated, AHe had approached a customer and accused him of being a former shoplifter. It was a case of mistaken identity and the customer complained and threatened legal action.@ When asked how that discipline in 1996 factored in her decision to not allow Mr. 26 Patterson to compete in 1997, she said AWe have a performance issue, a customer service issue. We have inaccuracies in cashiering, and improvement was needed. Should he be rewarded with a full time position?@ Ms. Hoffman was also asked in chief why she recommended that grievor Velentzas be not interviewed. She replied that Mr. Velentzas had a one day suspension which she considered to be Aserious discipline@, because it involved a violent interaction with another employee on the sales floor. She said that she was aware that this discipline was over 2 years old, but stated that Adiscipline lasts for 3 years before its forgiven.@ Under cross-examination Ms. Hoffman agreed that he only looked at Mr. Patterson=s 1996 appraisal. She did not consider his next previous appraisal which was in 1994, or the one done in 1993. She acknowledged that in the 1994 appraisal Mr. Patterson received a 1 for punctuality and attendance which indicated exceptional performance. When counsel pointed out that Mr. Velentzas= discipline was over two years old at the time, Ms. Hoffman agreed, but added AThat still is within the 3 year period and the discipline would count.@ When counsel asked ASo because 27 it was less than 3 years old you disqualified him@, she answered Ayes@. Ms. Hoffman testified under cross-examination that she reviewed only Mr. Velentzas= 1997 appraisal. When counsel pointed out that in that, Mr. Velentzas received an overall rating of 2 indicating a better than satisfactory performance, she agreed but explained AHis performance was not the issue. He did his work well. The issue was that he had a violent interaction with an employee. The discipline was not because of poor work performance@. The arbitral jurisprudence recognizes that in certain circumstances past discipline may be relevant in assessing an employee=s qualifications and ability to perform a job for which he has applied. Brown & Beatty, Canadian Labour Arbitration, (3rd Ed.) at 6:3310 summarizes the principles established in the case law as follows: There is a consensus of opinion that where it is relevant to do so an employer may take into account the grievor=s past disciplinary record, including verbal warnings, in assessing his skill and ability to perform a job for which he has applied. For example, where an employee made an application for a job which required its occupant to be reliable and honest, and his prior disciplinary record raised a reasonable doubt as to his reliability, integrity, or responsibility, 28 it has been held that the employer could properly consider and weigh such defects in character in reaching its decision to deny the grievor the job. By contrast, it has been regarded as improper and unreasonable for an employer to rely upon a disciplinary offence to deny an employee a particular job where the nature of that offence did not reflect on the employee=s ability to perform the particular job, or where a substantial period of time had elapsed since the incident, during which the grievor had demonstrated his reformation and rehabilitation. Mr. Zachar testified that each incident of discipline was to be Atreated on its own merits@, but did not explain what that meant. According to the case law, discipline may only be considered where it is relevant to the assessment of the employee=s ability to perform the duties of the posted position. The discipline in question must reasonably raise some concern or doubt whether the employee has the ability to perform the duties and responsibilities of the posted position. The mere existence of any discipline, per se, would not be adequate to disqualify an employee. Thus in Re Miller, 348/82 (Samuels) at p.4, the Board stated: We do not agree with counsel for the grievor when he suggests that the disciplinary record can never be considered for purposes of promotion. In our view, it all depends on the language of the collective agreement concerning promotion. In our case, the agreement requires that the 29 applicant be Aqualified to perform the job@. If there are elements of the disciplinary record which bear on the applicant=s qualifications to do the job, then these elements can be considered. The disciplinary record per se is not relevant, but there may be matters in this record which do assist the employer to judge the applicant=s qualifications to do the job. This is the point made in the case cited to us at the hearing by counsel for the Liquor Control Board B The Corporation of the Borough of Etobicoke and The Borough of Etobicoke Civic Employees= Union, Local 185 (unreported dated October 23, 1981). Moreover, even in the face of discipline which is otherwise relevant, the employer must consider whether that discipline has had a corrective effect on the employee, or whether the employee is likely to demonstrate the same behaviour in the future. For example, where an employee had been disciplined two years earlier for failure to report to work on time, but has had no punctuality problems since then, it is indicative of the fact that the discipline has had the desired corrective effect and that the employee is now rehabilitated. In those circumstances, it is inappropriate to disqualify that employee on the basis of his past incident of discipline, even though punctuality is clearly relevant to the issue of performance in any job. On the other hand, where an employee has demonstrated a pattern of inappropriate conduct despite discipline imposed, it would be reasonable to conclude that such conduct may continue in the future and adversely affect 30 performance in the posted position. When reviewing past discipline as part of a competition process, the purpose ought not to be to reward for past good behaviour and penalize for past misconduct, as Ms. Hoffman appeared to do. The only relevance of discipline in this situation is whether or not that discipline reasonably raises a concern about the individuals=s qualifications and ability to do the posted job at the time of the competition. I have concluded for a number of reasons, that the employer acted improperly in disqualifying grievors Patterson and Velentzas. There is no evidence whatsoever before me to suggest that Ms. Hoffman or the Regional Director, put their minds to the issue of the relevance of the discipline to future performance in the posted position, or to the issue of whether the two grievors had been rehabilitated since the discipline. Ms. Hoffman disqualified Mr. Patterson on the basis of an alleged written reprimand in 1996 for an incident where the grievor had mistaken a customer for a former shop-lifter. Prior to her testifying, Mr. Patterson had denied that he received any discipline for that incident. He testified that his manager discussed the incident with him, but no discipline resulted. In the face of this denial, it was incumbent on the employer to 31 produce evidence to establish that the discipline it had relied on to disqualify Mr. Patterson in fact existed. This was not done. Ms. Hoffman did not testify as to the source of her information that the grievor had received a letter of reprimand for that incident. No such letter was produced. Mr. Patterson testified that the only discipline he had received was a written warning in 1997 for directly accepting hours from another store. There is no evidence that Ms. Hoffman was even aware of this incident of discipline. In any event, it was very clear form Ms. Hoffman=s testimony that she did not put her mind to the issue of whether Mr. Patterson or Mr. Velentzas had been rehabilitated or whether they were likely in the future to exhibit the conduct that resulted in the discipline. Her view was that as long as an applicant had an incident of discipline within the 3 year period recognized by the sunset clause, he was disqualified. This was clear from her testimony with regard to Mr. Velentzas. She agreed under cross-examination that he had otherwise been a good employee, that his altercation was an isolated incident, and that since that incident Mr. Velentzas had been discipline free for over 2 years. However, she disqualified him because the discipline was still less than 3 years old. She stated that the problem with Mr. Velentzas had nothing to do with performance. 32 The problem was that he had discipline within the 3 year period. That clearly indicates that she did not consider the issue of rehabilitation and the relevance of the discipline to future performance as an issue. As indicated by Re Miller, (supra) the employer was not entitled to disqualify an applicant because of discipline, unless that discipline reflected adversely on work performance. Ms. Hoffman=s approach is even more objectionable because the chart set out above at pp. 21-23 indicates that some District Managers did consider rehabilitation as a factor and allowed a number of employees to compete despite the existence of discipline within the 3 year period. For example, applicant Linda Wisniewski had a written reprimand in July 1995 for an altercation with another employee. District Manager Mike Stephens recommended that the discipline be waived because Athe employee has shown improvement@. Mr. Felora had a one day suspension as well as a written reprimand within the 3 year period. Yet Mr. Stephens recommended that he too be given an interview because had had Ashown improvement@, Mr. Saliba had a 5 day suspension for a physical altercation as recently as November 1996. His District Manager recommended that Mr. Saliba be allowed to proceed in the competition because he had Aan 33 outstanding M.O.S.@. In each of these examples, the District Managers= recommendations were accepted by the Regional Director. There is no evidence as to what considerations went in to the Regional Director=s decision to accept the recommendations because he did not testify. This evidence indicates that despite the employer=s goal of having a consistent recruitment process, at least as far as reviewing of past discipline was concerned there was no consistency in this case. Ms. Hoffman also considered a non-disciplinary discussion she had with Mr. Patterson about cashiering procedures as a factor in her recommendation that he be disqualified. According to documentary evidence, as well as Mr. Zachar=s testimony, it is clear that such non-disciplinary discussions did not form a criterion in the screening process. There is no evidence that other applicants were subjected to such scrutiny. That is yet another example of inconsistency. The evidence does not justify a conclusion that the discipline of either Mr. Patterson or Mr. Velentzas brings into question their ability to perform the duties and responsibilities 34 of a full-time CSR. With regard to Mr. Patterson, the employer has not adduced any evidence to establish that the incident of discipline it relied on even existed. The only discipline Mr. Patterson had related to not following proper procedure for obtaining hours from another store. Considering that there is no evidence in Mr. Patterson=s appraisals or anywhere else, that he habitually flouted procedures, it is not reasonable to conclude that Mr. Patterson will not follow procedures in the future. In any event, this discipline was not relied upon by the employer. Mr. Velentzas had engaged in misconduct more than 2 years ago and had been punished. The fact that he had not received any discipline whatsoever for over 2 years since then, can only be seen as indicative that the discipline has had the desired corrective effect on Mr. Velentzas. Certainly the evidence does not justify a conclusion that Mr. Velentzas is likely to repeat his misconduct. Additionally, it is clear from the evidence that Ms. Hoffman applied a much harsher standard on these 2 applicants than the standards applied on other applicants by other District Managers. Employees who had more serious incidents of discipline than Mr. Patterson and Mr. Velentzas received interviews because they had improved. These grievors did not receive that some 35 consideration from Ms. Hoffman. The employer is not entitled to apply standards inconsistently. If the screening could not be done centrally because the necessary information was not available on file, the employer ought to have at least provided some clear guidelines to the various District Managers on how the screening was to be done. The failure to do that resulted in some applicants being judged by lenient standards, while others were subjected to harsher treatment. That is not acceptable in a competition process. For the foregoing reasons I find that the employer failed to properly assess the qualifications and ability of Mr. Patterson and Mr. Velentzas when they were denied interviews. The appropriate remedy is set out later in this decision. Alleged fundamental flaws in the competition. In numerous decisions, this Board has reviewed the obligations of an employer in assessing the qualifications and ability of job applicants in the face of a relative equality clause. Employer counsel questioned the relevance of prior GSB decisions rendered under the OPSEU collective agreement, claiming that Athe language was different@. However, she did not point to any difference in substance and meaning, flowing from any 36 difference in language. I find that the present collective agreement, like the OPSEU agreement, contains a relative equality provision. The observations made by the Board in the OPSEU cases were not peculiarly dependent on particular words in the OPSEU provision. They are equally applicable to the relative equality clause in article 31.4(b) of the LCBO agreement. In Re Marek, 414/83 the Board observed as follows at p.5: AIt is hard for this Board to understand how this could occur, in view of the repeated direction this Board has given on the need to consult personnel files and candidates= supervisors, particularly when one of the candidates only is known to the interviewersCsee, for example, MacLellan and DeGrandis, 506/81, 507/81, 690/81 and 691/81, wherein the jurisprudence is summarized at page 25 and 26: The jurisprudence of this board has established various criteria by which to judge a selection process: 1.Candidates must be evaluated on all the relevant qualifications for the job as set out in the Position Specification. 2.The various methods used to assess the candidates should address these relevant qualifications insofar as it is possible. For example, interview questions and evaluation forms should cover all the qualifications. 3.Irrelevant factors should not be considered. 37 4.All the members of a selection committee should review the personnel files of all the applicants. 5.The applicants= supervisors should be asked for their evaluations of the applicants. 6.Information should be accumulated in a systematic way concerning all the applicants. See Remark, 149/77; Quinn, 9/78; Hoffman, 22/79; Ellsworth et al, 361/80; and Cross, 339/81. In Leslie, 126/79, the primary basis on which this Board ordered a new selection process was the fact that the interviewers knew one of the candidates, and had relied on the interviews alone, without any recourse to the supervisors of other candidates. Nor in, Leslie, had the interviewers referred to the grievor=s personnel file or performance appraisals. In our view, this conduct alone fatally flaws the selection process undertaken by the interview panel here.@ While the Board has repeatedly set out the foregoing as a guideline for the proper conduct of a competition process, it has not regarded the failure by the employer to comply with those criteria by itself, as reason to quash the results of the competition. Thus, in Re Saras, 457/85 (Swan), one of the complaints of the union was that the selection panel had failed to review the complete personnel files of the candidates. The Board found that all candidates were permitted to fill out an application form which provided space on two pages to describe an applicant=s qualifications and employment history, and were 38 invited to submit any additional information on a separate sheet. The grievor=s personnel file included information about some temporary jobs the grievor had done which would have been of some relevance. The committee=s failure to review personnel files deprived it of this information. Yet the Board took into account the fact that the grievor had the opportunity and had been invited to set out his employment history in the detailed application form. He had not mentioned the temporary jobs, which he claimed would have assisted his candidacy. The Board commented that the grievor must have not thought that the jobs in question were sufficiently important to set out in the application form. Noting that Ait is possible to pick holes in almost any process run by mortal human beings@, the Board dismissed the grievance, concluding as follows at p. 13: In the result, while we may not be happy with everything that happened in the course of the selection, we have come to the conclusion that the process as a whole was not unfair nor was it calculated to lead to an incorrect result. We have also concluded that, on a somewhat larger body of evidence placed before us at the hearing, and on an objective basis, Ms. Parisien was in fact better qualified for the specific job at issue than was the grievor. In Re Falcioni, 2308/91 (Kaplan), the Board found that AThe mistakes in this case are serious and disturbing, but we are satisfied on the evidence before us that the selection committee 39 and the employer obtained the information it needed to choose among the applicants and that the correct choice was ultimately arrived at.@ The grievance was dismissed because A... none of the mistakes is of such fundamental nature as to have irreversibly tainted the result@. In Re Laforest, 1983/87 (Roberts) the Board at p. 12 reviewed the list of McLennan and DeGrandis criteria, and observed: This Board has consistently held that failure to consult personnel files and reports of supervisors are significant flaws in the selection procedure. Where the Board finds such flaws to exist it generally invalidates the competition in question. Yet the Board has been prepared to overlook flaws in the face of evidence that it did not prejudice the candidacy of the grievor. Thus in Re Renton (Roberts), the selection committee had failed to consult personnel files and reports of supervisors. However, the evidence was that two of the three panel members had directly supervised the grievors for a number of years, and that they had briefed the third member completely and objectively as to the qualifications and abilities reflected in the grievors= personnel files. In the circumstances, the Board did not disturb the results of the competition. In contrast in Re Laforest, 40 (supra) the Board found that the one member who briefed the other 3 panel members had only supervised the grievor for a few months and that at a relatively low intensity level. There the Board concluded that the failure to review personnel files and supervisors reports raised great potential for prejudice. In Re Wayne & Lowe (supra) the Board was critical of the conduct of a panel which scored an interview process in the following circumstances: Once a consensus on scores was reached a list of all competitors was drawn up with their scores in all areas set out and totalled. It appears that after this list was drawn up further changes were made to various individuals= scores. Neither of the two committee members who gave evidence at the hearing was quite sure when the changes were made. In Re Wright/Wasky, 1832-33/91 (Watters) at pp. 41-42 the Board wrote: The Board has consistently determined that this task cannot be properly or adequately performed on the basis of just an oral interview. It has required that a broader base of information be assessed for purposes of complying with the contractual direction contained within article 4.3. This has included resort to personnel files, particularly the performance appraisals contained therein, and supervisory comments. An example of where this approach was employed is the award in Palatino, Ragos, Patterson. The majority of the Board there stated as follows: 41 A...We also find, however, that the employer in this case relied too heavily on the interview results. The authorities are extremely clear that the employer must not rely solely on interviews in job posting cases. At the very least the employer must also conduct reference checks of all candidates with immediate supervisors and review all applicants= personnel files ...., if the employer relies solely on the interview for making an assessment of candidates it does so at its peril.@ (Page 45) It is clear to this Board that the panel in this instance relied excessively on the scores generated through the interview process. In the case of Mr. Wasky, they did not conduct a reference check nor review his performance appraisals, as contained in the personnel files. Ms. Inkster agreed that in assessing his related experience, she relied exclusively on the information he presented at the interview. Similarly, Mr. Van Sickle appeared to make a conscious decision to disregard knowledge that he had pertaining to Mr. Wasky=s past experience. Both panellists were of the view that it was incumbent on all applicants to demonstrate their experience, skills and qualifications through their answers to the questions posed at the interview. We have no doubt given the panel=s failure to review other sources of relevant information, that Mr. Wasky was effectively excluded from further consideration solely because of the interview scoring. In Re Poole (1988) 2508/87, the vacancy had been awarded solely on the basis of interview scores. The Board noted at p.4: There must be a full gathering of information concerning the qualifications and ability of the applicants. It is simply not satisfactory to 42 conscientiously ignore information as was done here. For some reason, the grievor did not do well at the interview (we have a great deal of difficulty understanding this and we will have something to say about this in a moment). The three members of the panel were left with the impression that the successful candidate had better qualifications and experience than the grievor, but a look at their application forms would have confirmed that the grievor was a senior nurse with much experience in the very matter which was to be taught to the 800 staff members at the hospital, while the successful candidate had just graduated from nursing school, and had no experience whatso -ever in this area. In our view, the decision of the panel was simply perverse and this resulted from its profoundly flawed procedure. At p. 7 the Board concluded: In summary, we find that the selection process was entirely inadequate. The ultimate total reliance on the interview as an information- gathering and scoring tool resulted in an assessment of the relative merits of the candidates which had no real basis in fact. In particular, the panel failed utterly to see the grievor as she was, in spite of the fact that the information was in its hands or readily available. DECISION The process followed in this competition was very different from many aspects from the typical competition. The three person panel is not properly described as a Aselection@ panel. All of its members were emphatic during their testimony that their sole responsibility was to interview and score the 43 candidates in accordance with Athe process@. Once the score sheet was handed in, they had no further involvement in any other aspect of the competition process. Indeed, there was no person or persons who admitted to responsibility for actually selecting the successful candidates. One of the panel members best described the situation, when he was asked whether he was involved in the selection of who gets the jobs. He replied ANo one selected them. The process itself decided it@. The scoring of the 2 appraisals was performed by human resources staff almost as a clerical function, by applying a matrix to obtain scores to the two performance appraisals. The fact that the process was unusual is not by itself objectionable. The issue is whether it resulted in proper consideration being given to all of the relevant information available in assessing qualifications and ability as contemplated by article 31.4(b). After a careful review of the evidence I have concluded that as a result of the cumulative effect of many deficiencies, the whole process was fundamentally flawed so that its results cannot be accepted. The Board has repeatedly held that reliance solely on interview results is not acceptable as a means of assessing qualifications and ability. The employer here did not do that, but clearly over-valued the interview scores to the exclusion of 44 other relevant and more reliable information. The employer gave consideration to attendance and discipline, but only for purposes of the initial screening. Once applicants got beyond that hurdle, apart from the interview scores, the only other information considered was that contained in two appraisals. No resumes were reviewed. Complete personnel files were not considered. Supervisors were not contacted. Particularly considering that all of the applicants had performed for considerable periods in part-time CSR positions which had substantially similar duties, the reliance on a one half hour interview to the exclusion of other information, is unacceptable. The grievors testified about the extra duties they had performed in their part-time CSR positions, including in some cases the running of shifts. This not only demonstrates experience, but also the level of confidence the supervisors exhibited in their ability and reliability. They had performance appraisals which were satisfactory or better overall. When such senior employees performed poorly on a one half hour interview, it was not reasonable for the employer to simply accept the scores as representative of the qualifications and ability of the employees without consulting with the supervisors. The supervisors have had first hand knowledge about the level of 45 performance of the employees. Their information is at least as reliable, if not more reliable, than interview score. Mr. Zachar took the position that resumes were not reviewed out of a concern that it would give an unfair advantage to individuals who were more skilled in writing a good resume. One cannot help but wonder why the employer did not have a similar concern that individuals who were good performers at interviews in an atmosphere of pressure would have an unfair advantage, over others who were competent workers but not good performers at interviews. If the employer did not wish to review resumes, it had the obligation to obtain the information that would have been contained in a resume in some other manner. Unlike in Re Saras (supra), here the employer did not give the applicants an opportunity to set out their experience, employment history or any other relevant information such as letters of commendation, in the application form. The applicants were required to use the Q-35 form and it had space only for the most routine information. The argument that experience was indirectly considered because the applicants with more experience will be better able to answer the interview questions is without merit. Experience is a matter of fact, quite apart from an employees ability use that 46 experience to answer a question under the stressful conditions of an interview. On the basis of the evidence I find that experience received no consideration at all in the process. There is no suggestion of anything sinister. However, some of the evidence about the tabulation of scores is troublesome. There were discrepancies in the scores entered for the same applicant in different documents. No one could explain why the same applicant had one mark in the initial recording and a different score in the final document. Without going into any detail, I note that on the interview sheets for many applicants filled in by some panel members, a total mark had initially been entered in pencil, then erased and a different mark written over. The erased marks corresponded to the marks entered in another document which was not used for the awarding of positions. This clearly suggests that the interview sheets filled in and scored by the 3 panel members were at some point totalled and an average obtained by dividing by 3. The resulting score had then been entered on a score sheet recording scores for all applicants. Then someone had gone back and altered the scores on the individual score sheets and the procedure was repeated, resulting in a different average score. It was this latter score which was used ultimately in the awarding of positions. 47 No one testified to explain why and how this process of changing marks was carried out. Ms. Shelly McIntyre, one of the panellists, admitted that she would have been the one who did the erasure and the changes, but she had absolutely no recall of the circumstances which led her to do so. The interview was an extremely critical, if not determinative part, of the competition process. It is imperative that the employer explain the process it followed to arrive at interview scores. No assumptions can be made that there was some sinister activity going on, from the mere fact that Ms. McIntyre could not recall when, why or how she changed the marks. After all, she was testifying several years after the event. However, in a matter so critical to employee rights under the collective agreement, it is to be reasonably expected that the employer would keep a record of the process it followed step by step, particularly where unusual steps are taken such as erasing and substituting marks. By not doing so, it invites suspicion, and challenges to the reliability of the marks used. The employer should know that it would be obliged to explain the process followed, in the event a grievance is filed. It is imprudent, to say the least, for an employer to put itself in a position where at arbitration it cannot explain how and why marks happened to be changed. 48 The Board has considerable concern not only about the failure by the employer to consider information other than the 2 most recent appraisals, but also about the manner in which it considered those 2 appraisals. As the Board did in Re Netta et al (supra) I find that the straight mathematical conversion of appraisals, while simpler and easier to apply, failed to reflect the true content and opinion expressed therein by the appraising supervisor. The problem was compounded by the decision of the employer to focus solely on the ratings for individual areas of competency, and ignore the overall rating as well as positive assessments in the comments section. Through its failure to comply with its own policy of carrying out annual performance appraisals, the employer found itself in a position where it was not in a position to evaluate the appraisals for the same period for all of the applicants. However, it was in a position to compensate for that disadvantage, by canvassing supervisors to satisfy itself that the available appraisals were representative of the employee=s qualifications and ability, and not an aberration from the usual standards. The way the employer did it, the review of appraisals became a matter of luck of the draw. For example, the 1995 49 appraisal that was reviewed for Mr. Patterson contained a less than satisfactory rating for attendance and punctuality. This was held against him in screening him out of the competition. If a 1995 appraisal had not been done for him (some employees had no appraisals done since 1992 or 1993) the employer would have used his next previous appraisal, i.e. the 1994 appraisal in contrast to the 1995 appraisal, the 1994 appraisal had an excellent rating for attendance and punctuality. He lost out because he happened to have a 1995 appraisal done. Mr. Patterson=s case also illustrates another problem with the employer=s process. Had the employer reviewed the complete personnel file, it would have discovered that Mr. Patterson=s attendance and punctuality dramatically changed between 1994 to 1995. Remembering that the only relevant issue is the likelihood of Mr. Patterson attending work regularly and punctually in 1997 and thereafter, the question must necessary arise whether or not his problems in 1995 were caused by some particular reason such as an illness or some other personal problem, and if so, whether such impediment still existed. To answer this question the employer could have consulted Mr. Patterson=s past supervisors, or Mr. Patterson himself could have been asked for an explanation. Neither was done. Instead, 50 because the appraisal that happened to be reviewed had a negative rating, he was screened out without any further inquiry. A further flaw is apparent in the manner the employer assessed the relative equality of the applicants. The Board has no concerns about the 20 percent spread used for relative equality. However, the problem is that the employer compared applicants to the top score of 95 for each of the 37 vacancies. When the top scorer is awarded a position, he is no longer competing for the remaining vacancies. The comparison then must be between the highest scorer among those not yet awarded a position, and applicants who were senior to him. Indeed Mr. Zachar testified that this was exactly what was contemplated by the employer=s own policy. It is beyond doubt that in this particular competition the employer erred and failed to follow its own policy, resulting in an inappropriate consideration of relative equality. The Board does not doubt that the employer was making an honest and legitimate effort to come up with a consistent and administratively simple recruitment process. Subject to any estoppel arguments the union may elect to make in future cases, the employer was entitled to devise a new process, but only on condition that it met its obligations under the collective 51 agreement. In view of the many defects the Board has found, and the cumulative effect of those defects, the Board cannot agree with employer counsel that despite these defects the results of the competition should be allowed to stand. In all of the circumstances, the process followed by the employer as part of its obligation under article 31.4(b) to evaluate the relative qualifications and ability of the applicants was inadequate, in that it failed to elicit in a systematic fashion sufficient information to permit a fair and reliable judgement about the applicants. Therefore the results of this flawed process cannot be allowed to stand. The Board concludes as follows: (A) The board allows the grievances of Mr. Patterson and Mr. Velentzas in that it finds that the employer did not assess their qualifications and ability in compliance with article 31.4(b) when they were denied interviews. The Board finds that they were qualified and were entitled to participate fully. (B) The Board allows the grievances of Mr. Everest, Mr. Felora, Mr. MacKay and Mr. Sam to the extent that the competition which resulted in their not being awarded positions was so fundamentally flawed, that its results are not reliable. 52 Remedy The union accepted that if the grievances are allowed on the basis of fundamental flaws in the competition process, the appropriate remedy is to order a re-run of the competition. The employer also did not disagree with that. However, the parties were in disagreement as to who should be allowed to participate in the competition to be re-run. The union took the position that the new competition should be restricted to the grievors and the 37 successful candidates (incumbents) who were made parties to this proceeding. The employer on the other hand submits that all of the applicants who were found to be qualified to be interviewed, including those who did not grieve, should be allowed to participate in the re-run competition. Employer counsel pointed out that in Re Netta (supra) the Board did not restrict the competition ordered to be re-run to the grievors and incumbents. The Re Netta decision does not include any discussion about who should be allowed to participate in the re-run competition. The Board merely orders that AThe appropriate remedy in the circumstances is to require the LCBO to re-run the competition@. Thus it appears that the issue of the extent of 53 participation was not raised in that case. Among the many GSB decisions submitted to me, I have found some decisions which restrict the re-run competition to the grievor(s) and the incumbent(s), and others which place no such limitation. However, none of those decisions contain any reasoning for the order, suggesting that the issue was not argued before the Board. In the present case the issue has been squarely put before me and I must deal with it. All of the applicants participated in the competition in question. Of those unsuccessful, only some grieved that their rights had been infringed. The others, the non-grievors, have not asserted that their rights have been in any way infringed. Nor has the union made such a claim on their behalf, by filing a union grievance. In those circumstances the Board is of the view that the remedy rendered in order to address these 6 individual grievances should not extend any rights or benefits to those who did not grieve. In Re Zuibrycki, 100/76 (Pritchard), affirmed R v. O.P.S.E. et al, (1982) 35 O.R. (2nd) 670 (Ont. Div. Ct.), the Board remedied a flawed competition by ordering the appointment of the grievor to the vacancy. In that case the employer had 54 argued that the Board should not award the position to the grievor because there were other applicants who had not grieved, but were also relatively equal and had more seniority than the grievor. The Board rejected that reasoning. While the factual basis in that case was different in that the Board there was considering the appointment of the grievor, and not ordering of a re-run, its observations are instructive, and in my view equally applicable to the circumstances here. Thus it stated: Turning to the particular facts of the case before us, it must be remembered that the earlier panel of the Board found that the grievor possessed ability and skills at least equal to all of the candidates in each competition. In the result, he should have prevailed over [the successful applicants], each of whom had less seniority than the grievor. There were other candidates more senior than the grievor who, on the Board=s findings, were relatively equal in ability and skills and who therefore would have been entitled to prevail over the grievor if they had grieved and if the same findings of fact had been made. However, they did not grieve and have not grieved to this date. They therefore have forfeited any claim they may otherwise have had to the positions. It is widely accepted in labour relations that those with a grievance should raise the matter in a timely fashion so as to allow the parties to the collective agreement to assess the situation and respond appropriately. In particular, if the other candidates had grieved, the grievor=s case and the employer=s case may well have been different. However, by not grieving the other candidates are now foreclosed from claiming (or having claimed for them by the employer) any rights in this arbitration. 55 See also, Re Harris-Bernard 97/94 (Roberts) and Re Frisken, 2034/94 (Gray)which follow the same approach. In consideration of all of the foregoing the Board orders as follows: (a) The employer shall re-run the competition restricted to the six grievors and the incumbents, in accordance with the requirements of the collective agreement and the findings in this decision. (b) To the extent it is possible, the employer shall disregard the experience and knowledge acquired by the incumbents as a result of performing in the posted position following the first competition. (c) If any of the grievors are successful in the competition re-run, the employer shall compensate them for their losses, calculated on the basis that they were entitled to have been appointed on the day the appointments were made following the first competition. The Board retains jurisdiction to resolve any disagreements the parties may have in the implementation of this decision. 56 Dated this 24th day of February 2000 at Hamilton, Ontario Nimal V. Dissanayake, Vice-Chair