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HomeMy WebLinkAbout1989-1898.Nyman.92-01-13T ONTARIO EMPL 0¥~S DE LA COURONNE CROWN EMPL 0 YEES DE L 'ONTA RIO GRIEVANCE COMMISSION DE SETrLEMENT REGLEMENT BOARD DES GRIEFS ;80 DUNDAS STFIEET WEST, SUITE 2'10~, TORONTO, ONTARiO, M5G IZ8 TELEPHONE/T~LEPHONE: (4r6I 326-7388 ;$0, RUE DUNDAS OLiEST, ~UREAI. J 2100, TORONTO [ONTARIO), MSG ~'Z8 · FAC$~MILE/T/~L-~COP~E . (4 ;6) 326-'1396 3.898/89, 1631/89 IN THE MATTER OF ]%N ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ·Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Nyman) Grievor - and - The Crown in Right of,Ontario (Liquor Control Board of Ontario) Employer BEFORE: G. Simmons Vice-Chairperson G. Maj esky Member D. Clark Member FOR THE E. Mitchell GRIEVOR Counsel Koskie & Minsky Barristers & Solicitors FOR THE M. Hines EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARIN(~ June 18, 1990 January 16, 1991 March 6, 1991 2 The gfievor filed two grievances when the Employer refused 1'o promote him to '~fraffic Controlle¢' which is in the classification of 'M/areh0use Foreman 2" (Exhibit 4), At the commencement of these proceedings, it was agreed that the two grievances would be consolidated because both are concerned with the same fact situation. When the grievances were filed, the grlevor occupied the position of "Receiving Dock Foreperson" which is in the classification of '~Narehouse Foreman/Woman 1" (Exhibit 15). There were four applicants for the position and it is agreed that the grievor was the most senior employee. He claims that he is qualified to perform the functions of 'Traffic Controile~' and seeks to be placed in the position because of his seniority which is a requirement in Article 21.5(a) of the Collective Agreement. The article reads: Where employees are being considered for promotion, seniority will be the determining factor provided the emptoyee is qualified to perform the Job, The Employer denied the grievance on the grounds that it was of the opinion that the grievor was not quo!ified to perform the functions of Traffic Controller. Indeed, it is acknowledged that a Mr. Dwyer, o more junior employee, was likewise not qualified but in the opinion of the Employer was better suited to perform the functions of Traffic Controller and was therefore awarded the pas~t~on. The location of the work site is Durham Regional Warehouse which is tocated in Whi~by. It receives and distributes prodUcts of the Employer through 3 docks at any one time. in 1989, Mr. John O'Driscotl, the then incumbent in the Traffic Controller position, was to retire in July. The grtevor had, during the previous six months, refieved Mr. O'Driscoll on lunch breaks, other breaks, vacations, and illnesses. It was the grievor's position, therefore, that he was qualified fo perform the functions'of the Traffic Controller position. The job posting contained information concerning the duties of the job as wel~ as the clualifications needed. It reads in part as follows (Exhibit 4): To cO-ordinate all on-site movement of carrier vehicles; provide docking, compound and vehicle information to warehouse staff and carriers; manage the use of compound area; operate dock d.oor control panel; maintain all necessary forms and records; give direction to shunt vehicle operator when necessary; act for Supervisor during absence, Qualifications: Working knowledge of shipping, receiving, order processing and maintenance functions. Basic understanding of inter-model transportation and associated equipment. Satisfactory communication skills bath oral and written in order to maintain 1edgers and write detailed reports. Familiarity with common carrier activities. Ability to learn and apply procedures relating to the controf of all on-site vehicle movements and to recognize critical priorities affecting system output. Ability and willingness to work shifts as required. The grlevor gave evidence on his own behalf. While he entertained no doubt that he could perform the functions of Traffic Controller in his evidence-in- chief, in cross-examination he demonstrated a lack of familiarity with a number of terms that the Employer believed fo be essential for anyone to know if one were occupying the position being sought by the grievor, Some examples of this 4 are "FIFO". When asked what he understood that term to mean he replted that he had never heard of it. He was unfamiliar with the term "DEMURRAGE' as well as "CHASSIS DETENTION". He was unfamiliar with the term "PRINCIPAL RAILHEADff'. He was likewise unfamiliar with the terms '~HIPPERS LOADING COUN1TM and "CARRIER LOADING COUNT''. Consequently, the Employer urged the Board to accept its position that the grievor did not have a working knowledge of the functions required to be performed. The Employer also submitted several short wriffen reports that the grievor had prepared ~and submitted to the Employer pursuant to hts present duties as Warehouse Foreman/Woman (Exhibits 12, 13, 14, and 17) which it alleged reveal unsatisfactory written communication skills as required in the job posting. The Union called Mr. John O'Driscoll who, as stated earlier, retired in 1989. Mr. O'Driscoll had favourable comments to make on behalf of the grievor. He informed us that he has trained several others in the past and the grievor was one of the best he had trained. The only reservation that he offered was that while he was not asked formally about the grievor's qualifications, he was informally asked whether he thought that the grievor was capable of doing the job to which Mr. O'D~scoll replied in the affirmative but with reservations. He expanded to say that the grievor is a highly excitable individual who has a tough time getting along with people. In fairness to the grievor, Mr. O'Driscoll was asked if he knew what the term "FIFO" meanf to which he replied that it didn't ring a bell with him, It was Mr. O'Driscoll's opinion that the position of Traffic Controller gets 5 very hectic sometimes which requires a cool head. Sometimes ddvers get upset, particularly brokers who are self-employed ddvers, if they are unduly delayed at the warehouse. If was Mr. O'Driscoll's further Opinion that [iteracy with good interpersonal communicative and organizational skills were important to the job. The Employer informed us that the Traffic Controller works very closely with the Receiving Department and Shipping Department. Mr, Greg DeLuco is the Receiving Manager who was familiar with the Traffic Controller functions from the receiving standpoint and was one of the commiffee members who sat on the committee to determine who would be the successful applicant for the position of Traffic Controller. He has been the grievor's immediate supervisor since approximately mid-summer ]088 when the grlevor acquired his present position. It was his opinion that when the grievor filled in on relie~ for Mr. O'Driscolt it was not the same as '"standing alone"" as would be the case of an incumbent who was assigned that position on a permanent basis, instead, the relief person would receive support from the Receiving and Shipping Managers or a Dock Foreman. It was his opinion that the grievor had very little job experience and he required assistance from the Shipping and Receiving Departments when he filled in on behalf of Mr. O'Drisco[I. It was Mr. DeLuca's opinion that the grievor was not qualified to perform the functions of Traffic Controller because that position requires good interpersonal skills which the gdevor lacked. Mr. DeLuca was also concerned about the grievor's interpersonal skills both with internal and external contacts. That is, the grlevor has a tendency to avoid people situations and not 6 to interface with them. Mr. DeLuca cited several examples where the grievor demonstrated a lack of willingness to interface with his subordinates. One such example occurred when a forklift operator, Vince Ready, was loading a truck. The gdevor ordered Mr. Ready to move some stock thereby interrupting Mr, Ready's loading of the truck. When Mr. Ready asked the grievor why he had to do if he was told "Just do i1" and then the gdevor just walked away. Mr. Ready was upset and went to Mr. DeLuca fo intervene. Mr. DeLuca cited several other similar situations that occurred from time to time. Moreover, it was his opinion that the grievor was basically Ignorant of how the operation functioned as a whole. As well, there is what Mr. DeLuca described as "Container Demurrage" which are charges levied on the Employer by steamship lines for not unloading the containers on time. There was also a concern for "Chassis Detention" meaning that carriers would levy charges for chassis detention if kept beyond the established free time. Carriers would not inform the Employer about potential detentions as they were content to allow the chasses fo sit on the Employer's premises and run up charges. Also, it is important for the Traffic Controller fo know the distinction between '~hipper Load Counts" versus "Carder Load Counts". Shipper load counts places liability for shortages on the shipper whereas the contrary is applicable fo carriers in carder load counts. Moreover, according to Mr. DeLuca, if is important that the Traffic Controller be completely aware of the capacity fhaf receiving retail stores throughout the area 7 have. Some can accommodate forty-eight foot trailer loads whereas others have to be restricted to short-bodied trucks. Moreover, Mr. DeLuca was of the opinion that since working with the gfievor, the grievor has revealed that he does not possess strong communication skills, He does not give clear, concise instructions and he does not follow~up with instructions that he has given. Rather, he tends not to let others make suggestions but if he does he is not receptive to them. Mr. DeLuca said that when dealing with the huge number of drivers daily it is an absolute must that information that is given and received is understood and one has to be able. to follow-up and ensure the information is understood and that the person receiving the information knows exactly what is expected of him or her. Mr DeLuca testified that this was one of his main concerns. That is, he does not believe that the grievor's personality or make-up is compatible to the performance requirements of the job. Mr. Ran Graves, the Shipping Manager since 1985, also gave evidence on behalf of the Employer. Mr. Graves was the grievor's immediate supervisor between 1986 and 1988. He likewise was of the view that the population with ' which a Traffic Controller must deal with is a different breed. Truck drivers are not employees and Mr. Graves was of the view that when the shift begins at 7-a,m. there is potentially up to twenty drivers asking for loads. In his experience, having worked with and watched the grievor, Mr. Graves was of the view that the grievor would have a tendency to begin working rapidly when faced with a number of 8 requests, trying to deal with all tasks at the same time, and thereby placing the control aspect of the necessary duties in jeopardy. It was his opinion that it would take the grievor an extensive period of time to be capable of performing the functions of Traffic Controller. Mr. Bill b/lcDowell, the General Manager of Operations at the Durham Warehouse, is the supervisor of Messrs, IDeLuca and Graves. Mr. DeLuca, being the grievor's immediate supervisor, carried aura performance appraisal of the grievor (Exhibit 7) which the grievor and IVIr. DeLuca signed on December 7, 1989. Overall, the appraisal concluded that there were many areas requiring the grievor's immediate attention. These included areas of communication, reports and correspondence. It was the opinion of Mr,'geLuca that the grlevor's skills in these areas are tess than adequate and had fo improve. The appraisal continued that the grievor is not confident in himself and that the grievor had fo put more effort in focusing on his job priorities. It concluded that an interim evaluation would take place on March 15, 1990. Based on this appraisal, Mr. McDowell, in a memorandum fo Mr. DeLuca (Exhibit 6) stated that he was not prepared to consider the grievor for the vacant position of Traffic Controller. Based on all of the foregoing evidence can it be said that the grievor was qualified to perform the functions of Traffic Controller and if so, did the Employer violate Article 21.5(a) of the Collective Agreement?. The Union referred the Board once again to Article 21.5 which states that seniority is to be the determining factor provided the employee is qualified to perform the job. The Union position is that the grtevor was qualified and should have been awarded the position for a probationary period under Article 21,9 for three months and then if it proved that he was not qualified he could have returned to his present position..However, having performed the 'position in Mr. O'Donnell's absence the grievor passed the threshold test in demonstrating that he was indeed qualified. The Union relies on a previous decision of the Board in Bob Methom, File No. 570/81, an unreported decision chaired by S.B. Linden, Q.C., released on August 12, 1982. In that case, the parties were agreed that the onus is on the grievor in the first instance to establish a prima facle case that he Was qualified for the promotion. The onus then shifts fo the Employer fo show that in fact the grievor was-not qualified. In Re Corporation of the Town of Valley East and Canadian Union of Public Employees, Local 6 (1980) 27 L.A.C. (2d) 154 (R.L. Kennedy) involved a situation where the position of "temporary labour leade¢' was posted and was awarded to an employee with less seniority than the grievor. The evidence in that case established that the grievor had applied for and been awarded the position of Temporary Labour Leader on four previous occasions. The evidence before the Town of Valley East Board heard evidence from the grievor that he had performed ali of.the duties of the job function and had been complimented on his work by management. The grievor also testified that he had no problems either with the job or with the men that he supervised. The grievor's evidence was the only evidence presented before the Kennedy .Board. The Board commented at page 160 as follows: In the circumstances we are satisfied, consistent with the authorities referred to in Brown and Bec]th/, that the onus has shifted to the company to came forward and establish the grounds for its opinion that the training, skill and efficiency of the grievor and (the successful incumbent] are not relatively equal. This was not done in the evidence presented to the hearing, Similarly, the Union asserts that the onus likewise shifts to the Employer in the instant situation. The grlevor performed the functions of Traffic Controller and did so without any complaints. Further, with the threshold clause in Article 21.5(a) the Employer must enquire into the qualifications of the most senior candidate and the Employer failed to do so in the instant situation, instead, the Employer placed great weight on the performance appraisal that Mr. DeLuca had prepared. Consequently, the decision by Mr. McDowell to deny the most senior candidate an interview was an arbitrary act on his part. While the Union concedes that a performance appraisal may be considered in situations such as are before us, they can only be considered as one of a number of factors. Therefore, according to the Union, there has been sufficient evidence put forward on behalf of the Union to award the senior candidate the job posting. He performed it satisfactorily in Mr. O'Donnell's absence and the Employer has not rebutted the primo facie onus that the grievOr is not qualified. The Union relies on RV. vs, Ontario Public Service Employees' Union et al. (1982) 35 O.R. (2d) 670 (Div. Ct.) in support of its position that the grievor Should be awarded the position. There are two reasons for doing so. One, there is nothing teft fo decide because 11 the Union has shown that the gdevor is qualified and that he ts the most senior candidate. Two, it should be awarded simply because of the passage of time. The Employer argued that the only question before this Board was whether the grievor was qualified. In its view, all other questions are the wrong questions. Insofar as the requirement of an interview is concerned, it was the Employer's position that there is no language 'in the collective agreement that says there must be 'an interview. The aolleafive agraament being silent on interviews, it was the Employer's position that this is one case where the Metropolitan Board of Commissioners of Police and Metropolitan Toronto Police Association et al, 124 E.L.R. (3d) 684 (Ont. C.A.) applies because the collective agreement is silent on interviews. The Employer asserts that there is no issue of discrimination here because it was not raised throughout. So in counsel's view, the Issue that is left to be decided is, was the decision to deny an interview arbitrary? The Employer adopts the position that there was no arbitrariness in the decision to deny the grievor an interview. Mr. McDowell stated that he had taken into consideration a number of factors such as the performance appraisal; a discussion with Mr. Graves; as well as with one other; together with his own observations of the grievor. In the Employer's view, therefore, it did not act in an arbitrary fashion when it did not grant the grievor an interview. The Employer also takes the position that the grievor was ~ot qualified to perform the job. In Re Hamilton Teachers' Credit Union Ltd. and 'Office & Professional Employees' International Union, Local 343 (1989) 5 L.A,C. (4th) 62 12 (Verity) is a decision in support of the Employer's position that where you have no qualified candidates the Employer is free fo disregard the .seniority provisions. Moreover, once if is established that there are no qualified candidates, then Article 21.9 requiring a probationary trial period is not operative. The Board was also referred fo a previous decision of this Board involving Michael Frolock, GSB File No. 44/78, an unreported decision of Mr. E.B. Joliffe, dated October 5, 1981. In addressing Dunefle, Article 21.9 on pages 19 and 20, Mr. Joliffe stated: We do not think that Article 16.11 had any application fo Mr. Frolack's case. It refers expressly to 'an employee who has been promoted.' Mr. Frolack was not promoted in ] 977, so that the provision does not come in to play. Clearly, what the provision means Is that if, after the promotion, an employee seems unable to meet the requirements of the position, then he has three months to prove otherwise. Therefore, according to the employer, there ts no training required and the question still comes back to whether or not the grievor was qualified to perform the functions of traffic controller. The Employer poinfed out that the Union's sfrongest wifness was Mr. O'Driscoll who staled that fhe gdevor was qualified but with reservations. The reservations being thaf the grievor is a highly excitable individual who hod a faugh time getting along with people. Mr. O'Drisooll also said that the grievor would have to continue in improving his communication skills. The Employer also referred the Board fo the evidence again of the supervisors and urged the Board to conclude that the grievor was not qualified. t3 The evidence presented in the instant case is not on all fours with the Town Valley East case. In that case, the only evidence that was advanced was through the grievor.. His evidence satisfied the Board in that case that he had prima focie the qualifications to perform the functions of the position he was seeking. While the grievor testified in the instant case that he was qualified and could perform all of the job duties in the position of Traffic Controller, the evidence of Mr. O'Driscoll and that of twa of his supervisars must also be considered in coming to any decision. We agree with the Employer that the Union's strongest witness was Mr. O'Driscoll who had been the incumbent in the Traffic Controller position until his retirement in 1989. Mr. O'Driscoll testified in his evidence-in-chief that the gfievor was qualified but with reservations. These reservations were due to the highly excitable nature of the grievor and his difficulty in getting along with people. Mr. O'Driscoll was also of the view that literacy with good interpersonal communicative and organizational skills were important to the job. Counsel for the Union acknowledged that the grievor's report writing as contalned in Exhibits 13 and 14 were inadequate, but that the forms required of the incumbent in the position of Traffic Controller are straightforward and factual and the other Exhibits, being t2 and 17, were not relevant to the position that the grievor is seeking. Messrs. DeLuca and Graves who had both supervised the grievor at different periods since 1986 expressed a number of concerns about the grievor's capabilities or qualifications to perform the functions of Traffic Controller on a 14 stand-alone basis. They, like Mr. O'Driscoll, entertained a number of reservations about his capabilities of performing the job duties because of his personality. It is agreed by all that the position requires good interpersonal and communicative skills which the evidence indicates the grievor lacks in certain respects. But does this fact preclude the grievor from being qualified to perform the required duties of Traffic Controller? The evidence advanced on behalf of the Employer answers that question in the affirmative. The job posting states that its requirements include '"~o co-ordinate all on-site movement of carrier vehictes; provide docking, compound and vehicle info'marion to warehouse staff and carriers; manage the use of compound area;" ... and have ""[s]atisfactory communication skills both oral and written in order to maintain ledgers and write detailed reports.'" Arbitrators have been calied on to resolve issues such as are before us on a number of occasions. An individual aptitude may be taken into consideration such as getting along with fellow employees, see Douglas Aircraft Co. of Canada Ltd. and U.A.W. (1979) 22 ..L.A.C. (2d) 208 (H.D. Brown); communication skills may also be relevant, see University Hospital's Board and Alberta Union of Provincial Employees, Local 54(1988) 33 L.A.C. (3d) 157 where the Board upheld the preliminary objection against proceeding to hear the grievance on its merits because of timeliness. However, the Board offered the following comments with respect to the merits of the grievance on page 171: We are satisfied that the employer acted in good' faith in determining the job qualifications which included regular attendance and good communication skills. 15 Those qualities were obviously important for the few employees on the night shift for the reasons described by the employer's witnesses. The grievor should have been under no delusions as to what management (reasonably In our view) perceived to be her shortcomings in those two areas. The grlevor seems not to have accepted that there is any foundation for the concerns of management, particularly in the communications area. Also, in Re Victoria Hospital Corporation and London and District Service Workers' Union, Local 220 (1978) 20 L.A.C. (2d) 5 (Baum) the Board at page 9 made the following comment: The union does not dispute the first criterion relating to physical abiiih/. It does, however, argue the remaining two criteria relating to communication skills and attitude. The nursing porter, contends the union, is not in a leadership position; the primary functian of the job is merely the transportation of patients from one point to another. To us the basic question concerning the appropriateness of the criteria concerning communications and attitude is not so much the matter of leadership. Rather, the question is one of relevance in relationship to job function. The Board in that case found that certain standards set fOr the position were appropriate and that the requirement of communication skills was reasonable.. In deciding issues such as the one before us, we refer to Re Hydro-Electric Power Com-n. of Ontario and Office & Professional Employees' Int'l. Union (1976) 11 L.A.C. (2d) 36 (Beatty) at page 41: 16 With respect to the application of the standards expected by the emptoyer to the emptoyees concerned, arbitrators have also uniformly taken the position that the arbitral function with respect to the second aspect of the employer's decision is not in the nature of an appeal or a fresh determination on the merits, but rather should be restricted to a resolution of whether the employer's decision was reasonable, made in good faith and not discriminatory: In short, the trust to be applied in this aspect af the employer's decision is not whether we agree or disagree with the employer's selection but rather whether, in all of the circumstances, that selection was a reasonable one. We have heard a good deal of evidence during the three days of hearings and have the benefif of the views of both management and union witnesses. The Employer has expressed a number of concerns over the grievor's qualifications to perform the duties of a Traffic Controller. His interpersonal and communication skills, according to the Employer, are lacking for reasons that have been expressed in the evidence that they have given. Mr. O'Driscoll's evidence confirms the concerns held by management. In our respectful opinion, we are unable to find that the Employer acted in a manner that would have us disturb its decision. This is in keeping with the views expressed in the Hydro-Electric Power case, supra. Accordingly, for alt of the foregoing reasons, we are of the view that the grievance must be and Is hereby dismissed. 17 Signed af Kingsfon,©ntario this t 3'ch day of January · 1992. C. Gordon Simmons Vice Chairperson (see attached G. Majesky Member D, Clark Member Between: ONTARIO LIQUOR BOARD EMPLOYEES' UNION - and - THE CROWN ]iN RIGHT OF ONTARIO (Liquor Control Board of Ontario) The Grievance Settlement Board Grievance of Nyman#1898/89 Union Nominee Partial Dissent I have reviewed the award in the above noted matter and must respectfully register a partial dissent. Although the facts in this ease are not in significant dispute, I do have a significant disagreement with the manner in which the LCBO addressed the literacy deficiencies of the grievor. During the several days of hearing, the board heard much evidence about the state of the art inventory control techniques which are common place at the Durham Warehouse. Particularly, we heard the current jargon and buzz words used by management ie., domiciling the inventory. Perhaps a new culture and breed of warehouse person has evolved in the 1990'$, but I was struck by the intellectual pomposity of the warehouse bosses who have ascribed to the job of Warehouse Foreman/woman a techno sophistication befitting an MBA graduate. Perhaps creeping credentialism even occurs in what has traditionally been the low skill level shipping and receiving jobs. At one time, the kids who dropped out of high school (30% in 1991) could count on these warehouse jobs as an entry level position. Sadly, it appears that these positions require quasi professional credentials in the 1990's. In terms of the decision of the board to dismi~ Mr. Nyman's grievance, I believe the board has arrived at the appropriate decision. Unfortunately, I am less comfortable with respect to how the employer handled what are clearly identifiable literacy problems of Mr. Nyman. Specifically, the board was submitted a copy of a note which Mr. Nyman wrote as an internal memo to his supervisor. There appeared to be several spelling and composition errors indicating that Mr. Nyman had some difficulty in composing written communications. What I found disturbing is that the Warehouse bosses who prided themselves on efficiency and buzz-words sought to utilize these memo's only at an arbitration hearing. My concern very simply is that 1990 was the International Year of Literacy, and having organized a national symposium on "workplace literacy" entitled "challenges and solutions" for business and labour, I came to realize that the Ontario and Federal governments were taking a lead r01e in literacy initiatives. My concern, therefore, when confronted at the hearing by employer testimony and employer counsel arg~lments respecting Mr. Nyman's literacy deficiencies, was the apparent disregard for the problem, because all the employer wanted was to prevent Mr. Nyman from getting the job. Frankly, that was a wrong tact. Firstly, I was saddened to find out that the LCBO, as a ~Crown Agency, did not even have any semblance of a workplace literacy initiative. Typically, most government letterhead will have in the corner these International year of Literacy Iogo's. Perhaps, government involvement is merely cosmetic in some instances. Unfortunately, LCBO management committed a cardinal adult education sin when they used written memo's of Mr. Nyman, and used these to embarrass him at the hearing and make a point to the board. The reality is that working people will deny that they have a literacy problem, and "bluff it", until confronted that they have a problem, and offered -- some real assistance to cope in a remedial way with this difficulty. Perhaps, if anything, maybe someone at head office will inquire how many other workers have literacy problems, and seek to put in place some meaningful solutions. Like the old saying goes, if you think training is expensive, you should add up the cost of illiteracy. Respectfully submitted by, FP/~~..CO.NSULTANT SERVICES U o~Non~ee GM/mg MARKHAM, Ontario November 1, 1991