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HomeMy WebLinkAbout1990-1051.Smith.91-10-10 r: . ) ~ - .....) ~ ç; . . " '~f '·.§~t.c,. ONTARIO f, i," EMPLO YÊS DE LA COURONNE " '.;.'1,'. '."::'c"r'~'.' CROWN'EMPLOYEES DE L'ONTARIO .... ' ." GRIEVANCE COMMISSION DE 1111 SETTLEMENT , REGLEMENT ~- BOARD DES GRIEFS 180 DUND....S STREET weST, surTE 2100, TORONTO. ONTARIO, MSG lZ8 TELEPHONEITELÈPHONE: (4 IS) 326-1388 180, ~UE OUNDAS OUEST, BUREAU 2100, TORONTO rONTARIO). M5G IZ8 FACSIMILEIT(tufcOPIE: (416) 326-1396 1051/90, 1052/90 IN THE HATTER O~ AB·ARBITRATIOH Under ' THE CROWB EMPLOYEES COLLECTIVE BARGAINI:NG ACT Before /, 'l'JŒ GRIEVANCE SETTLEMENT BOARD , BBTWBEH . OPSEU (Smith) , Grievor - and - . Thé Crown in Right of ontario " (Ministry of Transpor.tation) Employer . BEFORE: W. Kaplan Vice-Chairperson \, J. C. Laniel Member A. stapleton Member . FOR THE L. Rothstein GRIEVO~ Counsel , . Gowling, strathy & Henderson Barristers & Solicitors FOR THE A. Rae EMPLOYER Counsel Winkler, Filion & Wakely Barristers & Solicitors BEARINQ November 20, 1990 January 11, 1991 ( February 25, 1991 June 12, 13, 14, 1991 ! I v , ~ } i ' r 2 - -- Introduction By 'a grievance dated May 24, '1990', Adair J. Smith grieves the result of Job Competition Procedure No. 4-90-13. Bya grievance dated May, 25, 1990, Mr. smith further, grieves the result of Job Competition Procedure No. 4-90-10. The complaint in both cases is identical: 1 I grieve the competition procedure.. .was biased and . further that I was not the successful candidate. The 1 reason for my statement is as follows: The questions " I' asked did not comply to the selection criteria and duties outlined in the advertisement for the job "competition. The following are examples to prove 'my contention [the attached list to both grievances is reproduced below].· The remedy sought for both grievances is also identical:, With my excellent qualifications and work experience I . should. have the said position. I also was a successful " candidate' . as Senior .patz:ol ,Supervisor, which I had to decline due to personal family matters. There is no doubt in my mind, that I am, the best qualified for the position. \' These two grievances relate to identical positions at different locations. One of these positions is located at Peter's Corners, the other at Duff's Corners. The job in question is a Patrol Foreman's position, classif~ed as General Foreman. The two positions were posted on April 20, 1990, and the requirements for both positions are identical: To supervise a work crew engaged in the maintenance of multi-lane expressways and major highways...: to operate type A and B equipment as required, act as night patroller during the winter months. Acting as second in command on patrol. The grievor applied for both positions, was interviewed, but proved ~ .' . ¡ 3 to be unsuccessful. The successful candidate for the DuffJs Corners competition was Mr. Reeford Corner, whose seniority date in the classified service was May 9, , 1986. (Mr. Corner had, however, worked as a seasonal employee with the ministry evèry year between 1969-1986.) The successful candidate for the Pe"ter J s ' Corners competition was Barry McCrea, whose seniority date was June 9, 1975. The grievor's seniority date is May 11, 1981. Both Mr. McCrea and Mr. Corner attended at the hearing of these grievances .r- and were given the opportunity to participate. Before the conc~usion o~ these proceedings, Mr. McCrea moved on to another position. The Board was subsequently advised that during the course of these proceedings another competition was held for the'PeterJs Corners position: the grievor again applied and was again unsuccessful. The succe~sful candidatec was not,' however, "- given notice of these proceedings, and accordingly did ' not , participate. This information was conveyed to the Board on the final day of hearing. In the result, the employer undertook, if the Board found that the grievor should have 'been awarded the PeterJ,s Corners position, to create a second such position. In brief, it was the unionJs position that the grievor, a long- serving employee with seniority greater than Mr. Corner', but less than Mr. ,McCrea, was the best qualified person for both positions. With respect to both positions, the union argued that the selection panel failed to take into account the fact that the grievor had ~ i 4 performed satisfactorily all or most of the jOb on an acting basis; 'and that the panel improperly ,scored, the interview results. Had the panel taken Mr. Smith's experience into 'account, and had they properly scored him, the grievor would have received a higher score than either of the successful applicants. With respect to the' Duff's Corners position, even if the grievor's score had been equal J I to that of the successful candidate, the union took the position I that his greater seniority in the classified service should have ,- resulted in his being awarded the positi~n. 'The union also took the position that the selection process in both competitions was 0' flawed; in particular, that the weighting of the questions did not \ properly reflect the functions of the position in question; that· the panel did not determine its marking criteria in advance of scoring, with the result that its results were subjective; and that the panels engaged in consensus scoring. In brief, it -- the employer's position that the competition was process was fair and reasonable; that all relevant criteria were taken into account, -including the grievor' s acting experience; that \ the grievor's personnel filed was reviewed, as were the personnel files of all- the candidates ,invited for an interview; that references were checked, and that the questions asked were appropriate to the positions and properly reflected the duties of the jobs in both cases; and that the answers given by the ,1 candidates were properly scored and resulted in the best qualified i appl~~ants being awarded the positions in question.' ~ ;- 5 --- The Union Case Mr. smith gave evidence on his own behalf. He began work for the ministry on May 11, 1981 as a Highway Equipment operator 2, ("HEO 2"') stationed at the Alfreda Patrol. In November 1986, the grievor, transferred to Peter's Corners, ,still as an HEO 2. In November 1987, 'the grievor became an HEO 3. At the time of the hearing of this matter, Mr. Smith occupied the position of Patrol Maintenance ,-, Worker west. This is a new designation brought about as a result of a process referred to as Maintenance Renewal, in which certain positions in 'the patrol yard were restructured. Maintenance Renewal into effect in Âpril 1990. The HEO 3 position '. . came l.S equivalent to the Patrol Maintenance Worker West position. There , was,' some' considerable evidence about changes in the organization of the yards ,at Duff's and Peter1s Corners,' but as that evidence I, is not directly material to an evaluation of the job competition process it is not described here. The important point is that the jOb that the grievor sought in both competitions continues to,be r~ferred to as the Patrol Foreman's/Patrol Forewoman's position, and while there have, been some changes in duties and c responsibilities, these changes are not major. , \ Prior to the job competition at Peter1s Corners, no one was occupying the Patrol Foreman1sjPatrol Forewomanls position. The grievor was, however, acting as the second in command (n2 IC") and occupied that position from July 1989 to' May 1990. Mr. Smlthls I ) .! 6 attention was drawn~t()the IIdutiesll portion of both job postings. He testif~ed that he was able to operate type A and B equipment. So too were the successful applicants. Mr. smith was also able to act as a night patroller during the winter months. This refers to duties between November and March, duties that take place. throughout the day on different shifts. The night patroller is required to supervise ministry and private cr~ws engaged in snow removal, salting arid sanding, and also to prepare the paperwork . required for these operations. Mr. Smith testified about his prior experience working as a night patroller, which began in November 1987. The grievor testified that he had greater expèrience working as a night patroller than did Mr. McCrea. . Mr. smith also testified about his experience as2 Ie. Suffice~ it . to s~y that he has extensive experience in this position, both in \ the filling out of the myriad forms, as well as the practical aspects involving use of equipment, liaison with the public and contractors, patrolling and exercising leadership skills as required. In his evidence, Mr. Smith demonstrated a , good understanding of· the different requirements of this part of the position. I Mr. Smith was shown a copy of 'the position specification for the Foreman's/Forewoman's position at Duff's Corners pre-maintenánce renewal, and he testified that he had performed all of the duties indicated on that docume,nt. He was also shown a copy of the I , ~\ \ .' " 7 position specification for the . Foreman ' s/Forewoman' s position at, . . Peter's Corners post-maintenance renewal, and h~·again testified to having performed the duties·indicated"onthat form. The post- ma intEmance renewal 'position specification for the foreman'sl forewoman's position are identical for both Duff's and Peter's ' Corners; the only difference between the two yards is that Duff's is a larger patrol ,and the foreman or forewoman would have more . leadership responsibilities. It was further Mr. Smith's evidence ~. that the pre- and post-maintenance renewal position specifications for the foreman' sl forewoman 'S pos i tion. accurately described the du~ies assumed by the 2 IC. ,A copy of the grievor's performance appraisal for the period April 1" 1988 to March 31, , 1989 ,was introduced into evidence.. ' It indicates that the grievor was meeting expected results, and that I, ,he was doing an "excellent j,ob" as a. night patroller. Another appraisal, dated May 17, 1990~ deals with 'the 1989-1990 year, and includes part of the period in which the grievor acted as 2 Ie. This appraisal indicates that the grievor continued to meet expected results and notes that the gr ievor occupied the 2 IC position and that he could do all the paperwork' for, the winter and operations. It should be noted that this . performance summer I I appraisal was not availablèat the time the interviews for the two I I I positions took place, although it reflected the grievor's I I performance in the period leading up to those interviews. I . .. '" ." 8 I ,Mr. Smith testified that he has reviewed the' questions asked in p eac:h of the job competitions and it is his opinion that those questions do not fairly reflect the responsibilities of the foreman's/forewoman1s position. The reason for this conclusion is set out in the attachment to each of the, grievances. The· attachment to the Duff's Corner's grievance is as follows: '- 1. In order to act on behalf of the Patrol supervisor during his/her 'absence, the foreman/forewoman must have thorough knowledge and familiarity "fith the different Maintenance Manuals, however, no questions were asked -- with regards to these factors. 2. Safety and Traffic Control Procedures are major elements of the Position, however no questions were asked in the interview regarding these activities. The only referral to safety was type, . which does not cover the methods and procedµres,as requested under the Selection Criteria. 3. The Night Patroller's dutj.es consists of approximately 40% of the foreman/woman responsibilities; however no questions were asked pertaining to, this part of the foreman/forewoman job~ In fact, the only question .. asked, concerning winter'maintenance was with regards to duties that is the responsibility of the Patrol Supervisor. "_ 4. As Second In Command, on the patrol the foreman/woman must be knowledgeable and be 'capable to handle all paperwork and record keeping, especially during patrol supervisors absence, 'yet no questions were asked in this regard. ) 5 . No questions were put forward wi threqards to knowledge of ministry of privatized equipment types and their capabilities. In fact these activities are requested under the duties and selection criteria. The concerns raised with respect to the Peter1s Corner's patrol are somewhat similar: 1. The Night Patroller's duties consists of approximately 40% of the foreman/woman responsibilities, however no questions were asked pertaining to this part of the job. ~ \ 9 ~ ~- \, 2. Safety and Traffic Control Procedures are major elements of the position, however no questions were asked in the interview regarding these activities. 3. No questions were put forward with regards to knowledge of equipment types and their capabilities. In fact most machinery utilized is ministry owned. The only query was concerning the set up of privatized units which in my opinion does not pertain to the selection criteria and, is unfair. 4. In order to act on behalf of the patrol supervisor during his/her absence, the foreman/woman must have thorough knowledge and familiarity with the different maintenance manuals, however no questions were asked with /- regards to these factors. . 5. As second in command on the patrol the foreman/woman must be knowledgeable and be capable to handle all - paperwork and record keeping, especially during patrol I supervisors absence, yet no questions were asked in this I' ' regard. Very simply, Mr. Smith testified that the kind of questions I indicated above were integral to the positions in question, and that.,they were not asked by either of the selection committees. In cross-examination, Mr. Smith was asked why he thought the competition was biased and he told the Board that the bias was the result of the slanted questions. Employer counsel then took the grievor through some of the questions for the Duff's Corners job competition in' an ,effort to detail the deficiències in the ,questions as alleged by, the grievor. One of the complaints raised, by the grievor was that the questions for the two jobs did not require the applicant to demonstrate knowledge of the maintenance manuals. Employer counsel drew the grievor's attention to a number of these questions and suggested to him that they, in fact, did .' ,.. : 10 require knowledge of the manuals. For example, under the heading "technicallf, the applicants were asked a question about preparing a cost estimate for a culvert replacement. Employer counsel suggested that familiarity with the manuals would be necessary to prepare such an estimate. The,grievor, however, testif ied ~hat, what was required was familiarity with costing, and that was not in the manual. Employer counsel suggested to the grievor that he would have to look ~t the Manual, Drainage Di~ision, in order 'to ,"- know whether he was costing correctly. . The grievor, however, testified that since he had the practical knowledge this would not be necessary. In another example, the grievor was asked whether it was correct to say that the questions asked by the selection committee did not deal wi th safety. The grievorreplied that it was ~ Employer counsel then 'drew ,the grievor's attention ,to one of the questi9ns dealing with an employee who continually exits ministry vehicles without his .or'her hard hat. The question asks: "What would you do?" The g~ievor replied 'that this question dealt with personal safety, not traffic controi. Accordingly, in his opinion, it could not be said ,that questions on safety were asked. The grievor was - then asked about a question dealing with a leaking tanker loaded with diesel, located off the side of the road. The question asked "What would you do?" and it was suggested to the grievor that this question dealt with traffic control. The grievor, however, testified that' this was an incorrect characterization because the . , ~ , , ~" 11 vehicle was not on the road. Other'questions'asked by the selection committee were brought to the grievor's attention and the suggestion made that they in fact covered ,the duties of the position 'and, moreover, addressed the, , specific concerns raiseã by thegrievor in the attachment to each, , of his grievances. By and large, however, the grievor could~not be persuaded to agree, although it was clear from his answers that ~, only by construing some of these questions'extremely narrowly could they be said not to cover t~e matters the grievor claimed they ,did . not address. , The grievor, very ·si.mply I 'took an extremely literål approach to what was being asked. . -- . .__.._r., p" -. --.." ... ,~.~. PL. The- grievor was askeda·number of questions in cross-examination " about the nature and extent of his 2 IC experience, and it, was " , clear ,from the evidence that it was not as complete as indicated in-chief. Nevertheless, as our finding with respect to these grievances-does not flow from this evidence it is not ,necessary to rehearse, it in detail. The E~plQver's Case: Duff's Co:çners Mr. John TaY.1or gave evidence on behalf of the employer. Mr. Taylor has worked for the Ministry for twenty ,years, and has occupied the position of Senior Patrol Superintendent at Duff's Corners for the past twelve years. Mr. Taylor testified generally about the organization and responsibilities of the staff at Duff's - , - .- , 12 Corners, both pre- and post-maintenance renewal. Mr. Taylor also test~fied about the job competition ,for the foreman's/forewoman's position which is in dispute. Mr. Taylor was one of the members of'the selection committee which", on May 15, 1990 interviewed the grievor and four other applicants, including Mr. Corner. The other members of the selection committee - ,were Len Malloy from Human Resources, and Doug Robb, the Maintenance Supervisor and Mr. Taylor's' supervisor. Mr. Taylor I knew the grievor, although he had not previously supervised ~im. - . , All five applicants were interviewed on the same, day in ,alphabetical order. The process was explained at the start of the .T_ __ . , u_ _ ,_ interview, and each applicant was advised about the different areas to be covered~ 'Introduced into evidence were a series of questions , in three general ' areas: (i) supervisory/ leadership; (ii) judgement/decision ma~ing; and, ( iii) technical. The questions were drafted by Mr. Robb and reviewed in a dvapce by all three members of the selection committee. In reviewing these questions, the selection committee had reference to the job posting and the position specification for the jOb prior to maintenance renewal. A good answer to a question received a' five, a fair answer received a three and a poor answer received a one. Model answers were not prepared in advance. Each of the candidates was asked all of the questions. As the candidates answered the questions, the member,s of the selection committee wrote the answers down. Each interview, " -, I 1- 13 took approximately one hour, ,and at the end the candidates were . - invited to ask any questions. At the completion of the interviews, the members of the selection committee went through their notes to determine the best answers to each question. This process wa~ consensual. At the conclusion of this process, the· scores for each . candidat~ were tabulated. I Tabulation involved multiplying the score by another number. For .... example, ·the sco~e in supervisory/leadershj.p was multiplied by ten, I, and the score in technical had a multiplication weight of seven. I ' . supervisory/leadership was given the most weight because the members of the selection committee considered it .to be the most important quality. After each category was multiplied" ~he t~ree categories were added together to create a final score. In the· " DUff1s Corners competition. the grievor received a total score of 257. The successful candidate, Mr. Corner, received a successful - score of 371. (The grievor came in third out of the five.), After these calculations were completed, reference checks were obtained, and personnel files were reviewed. Each member of the selection committee looked at each of the personnel files, and supervisors were contacted for references. Mr. Taylor was the supervisor of two of the candidates, and so the selection committee only had to contact the supervisors of the other three candidates. The selection committee made a recommendation to the District , Engineer that Mr. Corner be awarded the position. -, , ! 14 . Mr. Taylor was taken through the questions . and answers of the grievor and the incumbent and he gave reasons for the grades the two'applicants received. ' Mr. Taylor's reasons were persuasive and to the point. Having heard this evidence, ~e are of the view that~ the' questions in the Duff's Corner's competition were fairly and consi~tently graded. In general, Mr. corner's answers indicated a higher degree of initiative, a better comprehension of the "' problem being addressed, and superior knowledge of the best way to proceed. One example will illustrate this point. I.' t - The question is as follows: You receive a noise complaint of a· dip in the' road surface on one of you~ highways. What would you do? \ Mr. Corner répl ied to this question, according to Mr. Taylor's ~otes, by contacting his supervisor, investigating, contacting,the source of complaint, fixinqthe hole with cold patch if necessary until a better repair can be arranged, posting bump signs and documenting the time and details. Mr. smith replied, accordipqto Mr. Taylor's notes, by saying that he would notify the supervisor and'go out w~th the supervisor to investigate if he was available, that he, would check to see if ' it was a legitimate ministry responsibility, that he would document the situation and if it was a problem, that he would correct it when 'the work schedule allowed using "proper safety and manpower. Mr. Smith also indicated that the decision was up to the,supervisor, if he was' there ~ but that I i' t I '-, ; 15 if he wa~ not there, then Mr. Smith would'make the decision. For these two answers , Mr. Corner received a five and Mr. smith received a three. Mr. Taylor ,testified that Mr. Corner received a higher score because he would try to contact the person who made· the complaint, and he also indicated that he would try to fix the problem, and he would post precautionary signs. Mr. Smith, in I contrast, did ,none of these things, and would only correct the I problem as the work schedule allowed. In Mr. Taylor's judgement, I Mr. Corner·sanswer was superior and was graded as such. I Mr. Taylor was referred to 'Article 4.30f the Collective Agreement, I and he..!:~stified, that 'his district held the view that "relatively .. _T· ._~_._...._ _. . .-- equal ~. meant- within a' ten percent spread, and even then it was still, only a consideration. In this case, the spread between the I, 'grievor and Mr. Corner was more than ten 'percent, and as a result, I s·eniori ty did not come. into issue.' ,Mr. Taylor testified that he knew, at the time of the interview, that the grievor had acted as 2 IC, and he pointed out a number of questions where the grievor I could have brought that experienc~ to bear. Mr. Taylor gave some I examples of how the questions could elicit information about the I abilities of each applicant to perform the duties of the position, and he testified generally about the different manuals at the work place and where reference to t~ose manuals co~ld and should have been made. He also indicated where reference to the paperwork part of the position could and should have been made. . , . , , I J, 16 In cross-examination, Mr. Taylor agreed, that all five candidates were equally promotable, and that there was nothing in their 'personnel' files that distinguished one from ,another., The only thing that distinguished them was their test results. Mr. Taylor· tes~ified that'the grievor and Mr. Corner 'rated the same in'dealing' with A and B equipment. union counsel, however, questioned Mr. Taylor with respect to some differences between Mr. Smith and Mr. .'. Corner, and suggested that these differences indicated that the grievor was, in fact, the,superior applicant for the position in question. . _" ,In this regard, Mr. Corner and Mr. Smi th both had exp,erience. as a -_._._._ ·T_C_.~·C_ . - , , . night patroller, al.though Mr. Corner's experience was much more " limited. While, Mr. Smith had done this job for two winters,> Mr. " COrner had done it for no more than fi~e shifts during the winter. ,. 'Mr. Corner did' not have superVisory experience, while ,Mr. Smith had such experience. Similarly, Mr. Smith had experience as a 2 IC, while Mr. Corner had never acted in that position. Mr. . Taylor agreed with union counsel that it was preferable to assess supervisory abil,i ties on the, job, rather than through a test. However, 'Mr. Taylor maintained that the questions in the supervisory/leadership category could provide the selection committee with the information it needed. ,When Mr. Taylor was asked whether it came down, to deciding between Mr. Smith, who had done the whole job, and Mr. corner, who had only done part of it, '- '.~~~ 17 I I he said yes,. ' . Mr. Taylor also testified in cross-examination tnat the selection committee did not ask any of the candidates ,to expand on their answers, and he. agreed that they might have had the knowledge' required, but may have simply failed to express it. Accordingly, '\ he agreed that it was therefore better, if possible, to assess people on the basis of what they had actually accomplished, rather than on the basis of a test. Nevertheless, Mr. Taylor maintained I that it was the job of the applicant to bring his or her knowledge I to the attention of the selection committee. . I . 1 The ~lover: s Case: }?eter' sCorners , , " Mr,. Harvey Wise gave evidence with respect to the comp~tition for I, the' position at Peter' s Corners~ . Mr. Wise has been with "the ": I I Ministry since 195~, and at the' time of the grievance he was an I intermediate patrol superintendent at Peter's Corners. Mr. Wise I has supervised the grievor since January 1989. . I Mr. wise identified the posting for the,Patrol Foreman/Forwoman's I position at Peter's Corners, and testified that tWQ applications , 'were received for it: one from the grievor, and the other from Barry McCrea. Mr. McCrea was an HEO 3 at the time of the competition, and had experience às a night patroller. I . -''"' , i 18 As already noted, Mr. Smith also had experience as a2 Ie, and Mr. . - Wise gave some evidence about how Mr. Smith came to get that position. Basically, both Mr. Smith and Mr'. McCrea indicated an interest in receiving 2 IC training, but since Mr. smith applied first, he was given the training, and as a result recei veel the, experience, first.· Mr. Wise was shown a copy of the position I specification for the Patrol Foreman I s/Ferewomanl s position, post- maintenance renewal, and was asked which of the indicated duties -- the grievor performed as a 2 IC. Mr. Wise's evidence can be . summarized, and it was to the effect that. the grievor did some,. but not all, of,the duties indicated, and other HEO's also performed' . some of the listed responsibilities. . Mr. Wise described the interview process., Both interviews were held on May 9th. Mr. Wise was a member of the selection committee, " - . as was Mr. Malloy from Human Resources and Jim Dixon, who was the Area Patrol Supervisor at the time'~ Mr. wise acted as chair of the committee. Mr. Wise knew the grievor, because he was his supervisor, and so did Mr. Dixon, because he had supervised the griever at the Alfreda Patrol. The two candidates were interviewed in alphabetical order. At the start of each interview, Mr. Malloy explained the procedure being followed, as well as the, different types of questions, and the three general subject categories. The candidates were advised that if they had any questions about the . process, they should feel free to raise them at any time. , . I I 19 - Mr. Wise asked each of the candidates all of the questions. The questions were prepared by Mr. Wise, as well as by Brian Minor, another patrol supervisor. . Mr. Wise and Mr. 'Minor rel ied on" their own job experience, in drafting. 'the, questions. Each interview " " lasted approximately thirty minutes. After both interviews were, I completed, the candidates were' scored" again consensually. The , I best answer received a five, a fair answer received a three, and a poor answer received a one. The answers in each cateqory were ;- then assigned. a weiqht, the multiplication was performed and a total score calculated. Mr. McCrea ended up with a score of 471~ , Mr. Smith ended up with 'a score of 323. The selecti9n committee ..' As Mr. Wise supervised both also went through the personnel files'. ca~didates,he was. able to ~rovide input to the selection committee, about each of them, and his references in~icate that he con~idered both the grievòr and Mr. McCrea dependable and promotable., Mr. \ wise noted in his references that Mr. McCrea lacked experience in 'paperwork. , , Employer counsel took Mr. Wise through the questions for this job competition, and the answers as recorded in his notes. Mr. wise then explained the different scores that the two candidates received for each question. Mr. Wise also explained' how the different questions covered the areas the grievor claimed should have been covered but were not. In his examination-in-chief, Mr. Wise's explanation for the differences in the two scores was plausible. However, a different stpry emerged in cross- . T .. ~, ! 20 \ examination~ . ' when both candidates' answers to the differ~nt questions were held up to careful examination it appeareà from the evidence that no real system was brought to bear in the evaluation of the responses. ' In some cases, a candidate' would receive a five for a complete answer, while in other cases, a five would be given for the best , ' answer. Mr. Wise testified that the, selection committee did not determine in advance which questions would receive a ~ive for a complete answer and which ones would receive a five for the best answer. In some cases, a five ,would be give~ for an 'answer that contained information that was not clearly required by the question. . In other cases, there was no readily apparènt reason why' . '.-. one answer was considered compl~te and the other incomplete, in .' that both candidates' appear to have said the same, thing, although somewhat differently ÓC In some cases, a candidate received points for making an assumption, and in other cases a·candidate who made an assumption lost points. In some cases, there was no apparent reason for one candidate receiving a five and the other a three. For example, one question was: You and the crew are on the way to a job and the office calls and reports a mail box has been knocked down. What, would you do? According to Mr. Wise's notes, Mr. McCrea replied: Carry on to job with crew. ' \ If on our way, probably stop and repair. If emergency job, going to would not stop.' If no equipment on to repair. Report to supervisor when I came back in. / According to Mr. Wise's notes, Mr. Smith replied: - " "-, 21 - , Determine importance of mailbox - out on highway or where it was. Repair mail box. Use whatever personnel I have available. Set up safety. Document in diary. Fill out mail box replacement form. Notify immediate supervisor. Continue "on to work site. For his answer Mr. Mccrea received 'a five. For his answer Mr. Smith received a three. -, ,When asked about the discrepancy in scores, Mr. Wise testified that he did not know what Mr. Smith meant by, determining importance of --- the mailbox. Mr. wise was asked why he considered Mr. McCrea's answer' to be better, and "þe said that' one reason was that Mr. McCrea exhibited. a greater concern for the importance ,of the assiqned job, even thouqh nothinq in the question indicated that' . the job was important. union counsel asked Mr. Wise about'a number of other cases in which the two candidates received different - " scores. These cases need not be described in detail, but what needs to be said is that they did not inspire confidence in the grading procedùre. Equally disturbing were those instances where it appeared that the grievor's answer was much better than' Mr. McCrea's answer, but where the grievor nevertheless received a lower 'score. In ' several cases, the grievor was effectively penalized for not saying something, like the name of the closest patrol, in answering a question. There is no question but that the grievor knew the names'of the surrounding patrols. . . , '~ , , , . \ 22 Mr. Wise told the Board that Mr. Malloy participated in the marking - - process, and he ~estified that he thought that Mr. Malloy would know as much about the correct answers as he would because of his experienc,e. Mr. Wise, testified that he did not" consider the two scores 'to be relatively equal as they were not within ten percent' of each other. Moreover, this was a case where the senior 'candidate had a much better score. \ Mr. Wise was asked whether it would be 'fair to conclude that the selection was based on the test results,. and he replied that it was one of the more important factors, but that the files and . references' were also ~mportant. Mr. wise testified that he consider~d the qrievoris experience as a 2 IC þut that that did not . affect the qrievor1s overall rating~ Had the grievor and Mr. 'McCrea rece~ved relatively equal scores Mr. Wise testified, then the grievor' s experience as a 2 IC would have been ¡ooked at·. Mr. Wise could not say, however, as he was only one member of the panel, whether that would have been enough to put ~he grievor over the top considering Mr. Mccrea's greater seniority. In his' mind" however; the grievor's training as a 2 Ie was approximately equal to Mr. McCrea's greater seniority. In his evidence, however, Mr. wise also attempted to minimize the grievor's work as a 2 Ic,and he frequently stated that the grievor was not doing anything that other employees weren't also ~oing.' Nevertheless, Mr. Wise told· the Board that it was fair to say that a person who had performed the night'patroller's job had done approximately fifty percent of , ') " 23 the patrol foreman's/forewoman's position~ . , , . ' ( Mr. Wise was asked about the absence of written answers for the , questions, and he testified,that both'he and Mr. Dixon had enough experience to know the, right answers. Mr. Malloy also' had a good, idea about what was required because he had reviewed the jób specification in advance of the competition., Mr. Wise testified that if the grievor had been'the only candidate for the position, ,~, he would have b~en given the job. Union Arqument-ouffls CQ¥ners Union counsel began her observations by noting that in the case of , the Duff's. Corner's competition a junior applicant was awarded the position ahead of a more senior one'. In counsel's view, this competition was defec~ive for four reasons: First, ' that there was I. an undue emphasis placed on the test scores. In their place, the employer should have looked at the demonstrated ability of the applicants to perform the position. Seconà, the selection committee had failed to give any credit to the grievor for having performed virtually all of the tasks in the posted position. In this regard, counsel noted that the successful applicant had significantly less experi~nce in the job. Third, counsel submitted that the test results should not be relied upon because they failed to provide an objective evaluation of the relative abilities of the grievor and Mr. Corner. The combination of consensus scoring and the absence of pre-determined answers were, in counsel's view, a , .,no. - ' , 24 flaw that went directly to the results'; And fourth, counsel,arguèd that the test questions did not 'adequately reflect the full scope of the duties -and responsibilities of the Patrol Foreman1s/ Forewoman's position. Counsel questioned the heavy emphasis in the questions for this competition on supervisory/ leadership skills, and pointed out· that this was not one of the requirements explicitly indicated on the duties' portion of the posting. In a careful review of the evidence, union counsel pointed out a number of areas in whiCh the grievor c:iemonstrated superior . qualific~~ions to Mr. Corner. For examp~e, the qrievo~.had,more night patroller experience than did Mr. Corner, and he also had more supervisory,experience. The grievor. had acted as a 2 IC, and . . Mr. Corner had not. 'Counsel contrasted this evidence with that of, Mr., Taylor who had testified" that the only material difference , between the two could be found in their test results. ,Turning to the test results, union counsel emphasized the absence of any set answers, and argued that the consensual marking approach was another flaw which, along with the assignment of grades on a relative as opposed to correct basis, went to the result. What should have gone to the result, in counsel's submission, was the actual experience o~ the candidates in performing the position in question. In counsel's submission, the employer is obliged to look at significant objective evidence concerning the qualifi~ations and r ability of the candidates where such evidence exists. Counsel drew - - " j ; , 25 our attention to :aallJ:powers 716/89 (Gorsky) " where the Board observed: Where candidates have not,performed the actual job being' sought and there is little valid objective evidence of their actual performance on that job, 'a properly prepared and administered test represents a sensible means of assessing qualifications and ability (at 17). In counsel IS view, however, the employer in the instant case should not have rel'ied to the extent that, it did on the test results, given that it had available to it evidence of performance in the ,<, position. Counsel pointed out, moreover, that the test results in the instant ?ase were so out of line with the grievor's actual c, performance of the duties in question that it should not be givèn any weight. Counsel also took issue wi th the weighting scheme employed by the employer, and argued that the effect of this scheme ., . was to distort reality by exaggerating the disparity between the . applicants. , '" Counsel concluded her argument with respect to the Duff's Cornerls position with the observation that the Board had reason enough to order a rerun of the competition ·in this . case. There was sufficient evidence to indicate that if the test had been properly ~cored and administ~red, and if the qrievor's prior experience had been given appropriate weight, that he would have ended up at least "relatively equal1l to Mr. Corner. In that case, his seniority may have been brought into issue, with one likely result his being ,awarded the position. Counsel acc9rdingly requested that the Board order a rerun of the Duff's Corners competition, with full . '" . . or I " 26 retroactivity of wages and benefits if the grievor proved successful in winning the competition. Union Argument-P~te~ls Corn~rs Counsel began her submissions by noting that in contrast to, the, Duff's corner's competition, the selection committee for· this I competition did take the grievor's experience into account. The major flaw in the running of this competition was, in counsel-I s view, the administration and marking of the test. - Referring again to consensus scoring, counsel pointed out that the Board has disapproved of this approach, and referred us to Bent r 1733/86 (Fisher). (But see also ral~tino/~aaos/f~t~eIson 1968/89.) . Counsel also argued that, the absence of prepared answers " ,was . contrary to the whole purpose of an objective scoring sys~em. The " scoring system was, moreover and in contrast to that-used in the Duff's Corners competition, internally inconsistent and riddled . with apparent mistakes. Counsel argued that the evidence indicated that the scoring system was" at best, , ad hoc and that the differentiations in scores for the answers of the candidates were hard to understand, much less justify. In counsel's view, part of the problem with the test - was the questions themselves, for they failed, in her sUbmission, to fairly reflect the position in question. Most noticeably lacking were questions that tested knowledge of the important paperwork part~of I I , I t 27 ,the positión~ Also absent were questions about the nuts and bolts - .' of night patroller duties, not to mention questions testing ~ knowledge of the manuals. The wording of the questions was, in many cases, ambiguous, and this too, counsel argued, skewed the results. Counsel submitted that the evidence indicated that the grievor had , the skills and ability to do the job, and that insofar as the test ,~- results indicated otherwise, it was because of the various flaws enumerated above. Counsel argued ,that the Board should, in the circumstances of' this case, place the .grievor in the :Patrol Foreman's job in that; there would be, nothing to gain 'in ordering a ,rerun of the competi tion . , where the grievor' was the only candidate. c, . "":..- I, Emclover Araument " Employer counsel began her submissions-with the observation that the Board's job is not to second-guess e~ployer decisions in job competition cases where the employer used ~ppropriate criteria in making its decision. This was such a case, and counsel submitted ) that both selection committees applied app~opriate criteria ,in good faith, and in an unbiased manner and, as a result, reached a reasonable result. This was not a case, in counsel's submission, where inadequate selection methods have resulted in a miscarriage of industrial justice. Counsel noted that one way or another every job competition is flawed. One need not look too deeply to find 28 defects. However, that is not the point. The question is whether . - any of the flaws are significant enough to warrant overturning the employerts decision. And counsel submitted that they were not. In counsel's view, the candidates in both job' competitions were" evaluated on the basis of relevant qualifications. The method used to assess the candidates addressed those qualifications~ - Specifically, the questions asked in both interviews covered the qualifications necessary for the, position in question. The interview questions went to duties and responsibilities of the job, and coùnselargued that a review ~f the pre- a~d post-maintenance review positi9n specifications indicated that the major aspects of the position were, one way or another, covered by the questions. Counsel, referred to the testimony of both Mr. Taylor and Mr. Wise that the questions did address the matters indicated as missing by the grievor on his grievance, and counsel gave a number of examples to illustrate this point. Irrelevant factors were not considered, , and counsel referred to- the grievor's evidence that none of the questions were irrelevant. Counsel pointed out that ~ll me~ers of the selection committee reviewed the personnel riles of all the applicants. supervisors were asked for references, and the information about each candidate was gathered in a systematic way. All candidates were interviewed under the same circumstances, and all candidates were asked, the same questions. Counsel argued that the questions were , I ' '~ " 29 ~~ methodically marked in each job competition, and pointed out that there was nothing in the jurisprudence of this Board that required the employer to establish . advance answer.s to interview 1n questions. Counsel urged the Board not to qveremphasize the, grievor's experience as a 2 Ie. That ,was simply a training position, and counsel referred to Mr. Wise's evidence, which was to the 'effect ~, that the grievor, while occupying that position, did not do that much more than other HEOls. This situation should, in counsel's submission, be 'contrasted with the case where an applicant has acting experience in the actual position. . Counsel pointed out that for the union to succeed in the Duff's . Corners competition it had to qemonstrate that the grievor was at " least equal to Mr. Corner before the grievor's greater seniority could be taken into account. The situation was, however, different in the Peter's Corners case where the union had to demonstrate that the grievor was be~ter by a substantial margin than Mr. MCCrea, given Mr. McCreals greater seniority. Counsel referred the Board to a number of authorities on point including Sedore 250/83 (Delisle); Strazds 88/83 (Jolliffe); ~ountain/Barrell/MacLel~an 629/89 (Fisher); Spenc~ 431/84 (Gorsky); Anderson 105/86 (Wright); Renton/Ross 1577/84 (Roberts) ; Cross 339/81 (Jolliffe): Gave;t 145/80 (Barton) : and Polac~ 1120/86 (Fqrbes-Roberts). After carefully reviewing these cases with the Board, counsel submitted . 30 ~ that the union has failed to' meet its onus; namely to demonstrate that the grievor was relatively qualified in the case of the Duff's Corners competition and better qualified by a substantial margin . the of the Peter's Corners competition. Accordingly, 1n case \, counsel submitted that the grievances should be dismissed. Incumbent's SUbmissioq Mr. Corner submitted that the questions were fair and pertained to the position in question. In, his view, his twenty-one years of experience on the job was equivalent to that of Mr. Smith. Mr. Corner told the Board that he had done everything that Mr. Smith had done, and, in fact, had ten 'years of experience with this employer before 'Mr. Smith began working. Mr. Corner stated that , he was succešsful because he studied for the interview.' , Union ReplY 'Union counsel submitted that it is not sufficient for the employer to go through the motions of reviewing personnel files and obtaining ~eferences. What is necessary is for 'the employer to draw same conclusions from the material it reviews. In this case, the grievor had relevant experience, but that experience was not \ taken ,into account, and that, in coµnsel's view, is a flaw. Union counsel also took issue with the assertion that both tests were '! properly administered. Finally, in counsel's submission, the union had proved that the grievor was relatively èqual in the case of the Duff's Corners competition. In the case of the Peter's Corners I " 31 -, competition tpe union had demonstrated that the test was a botch, and argued that in this case _the only logical remedy was to set those test results aside'. And that, in counsel's vi~w, led to only one logical result: awarding Mr. smith the posi~ion in Peter r s Corners. Decision . Having carefully considered the evidence and . arguments of the ..... parties we have come to the conclusion that the grievance relating to the job competition at Duff's Corners should be dismissed"but that t~e Peter's Corners grievance must be upheld. In brief we . find that while - -the' job competition at' Duff's, C9rners was not without flaws, on the whole it resulted in a fair assessment of the candidates, ,'and, in that case, should not be' set aside. " In contrast, we find that the examination process' in the Peter's I, Corners competition was so deficient as to necessitate the setting aside of the competition results. I The Duff's Corners Competition , In the Duff's Corners competition, the selection committee relied 'to a c~risiderable extent on the test results. But it did not rely, exclusively on those results and it also teok the griever's previous experience into account through examining his personnel file and securing ,a reference from his supervisor. Moreover, the grievor had the opportunity to bring his experience to the attention_of the selection committee through an elaboration in his I I I / r--, I . 32 answers to the questions. Instead, the grievor chose to answer the' questions extremely narrowly and accordingly denied the c~mmittee the benefit of learning more about his practical experience. Both thegrievor and Mr. Corner had years of experience in ' the . field and both could be .expected to have most, if not all, of the knowledge and skills necessary for 'the position in question. A test is one way,' in this kind of case where competitive candidates ./ have . appl ied for a position, to differentiate between those candidates. ,It, cannot be the only means of evaluation, but 'certainly in a case where both cand1datesreceivegood references: and are ~erceived by'the'employer to be promotable to the position, it can serve as a means of making distinctions. We find that the test for· the- DUff.'s Corners competition was relevant to the . positi~n in question and was also properly administered. We·also l find that supervisory and leadership skills were clearly part of the position in question, and, in that resÙlt, it was 'not inappropriate for the employer to get that part 'of the test extra , ~ weight. ' . " . At the end of the day, the committee focused on the test, results, , because those results provided it with a means of making a determination between a number of competitive candidates, each of whom was qualified for the position. Despite the faèt that Mr. Corner had less experience than the grievor in some areas, he still , had many years of experience in the field, and through his ; 1 33 - -- prepara ti(:m he was able to score demonstrably higher than the g:rievor. His score was higher because he demonstrated superior knowledge. These two candidates for the position were not relatively equal, and so Mr. smith's longer seniority in the classified service did not come into issue. In Bent the Board said: ~ it seems clear that the onus is on the union to establish not only that the defects existed but that had the defects not occurred, that the grievor would have got the . position. Although it is not articulated in the Delisle decision, it seems appropriate that the onus should simply be on the balance of probabilities. In other words, if the Union is able to show 'on the balance of ' , proþabil,i ties that had those defects not occurred, the grievor would be found to be relatively equal (at 12); We are of the view that any defects in the running of the competition for the position at Duff's Corners were minor, and that the union has failed to discharge its burden with respect to this grievance. Accordingly, the grievance, relating to the Duff's Corners position is dismissed. The ¡ete~'s Corners Compe~ition In the case of the Peter's Corners job competition and grievance, we reach an entirely different result, for we find that the scoring of the answers of the two candidates so completely unacceptable as to necessitate voiding theen~ire process. The evidence of Mr. Wise does not support any assertion that these tests were fairly marked. If anything, that evidence indicates the opposite to be 'true. In case after case this Board has established certain ; ! . . 34 -,- principles governing the running of job competitions., One of these I principles is that tests be fairly administered and marked. In the - instant case, we find that the marking system employed by the employer was internally inconsistent and unfair in the result. While we do not find that the employer need establish set answers' in advance of a competition, we do find that it must ~dentify the.' answers it is looking for, and that it must also consistently grade the questions. We do not find that either of these basic ' ,_. requirements in the running of a test took place in the ~eter's . Corners case. . ~ - There is an important difference between the Duff's Corners competition and the one in Peter t s "Corners: ' the successful applicant in Peter's Corners had, greater, seniority than, the 1 1 grievor. Usually in a case of this kind, the grievor must not just " show relative equality, but superiority in order· to succeed at " arbitration. The ~estion must, therefore, be asked: if the test had been properly administered and graded, would the grievor have demonstrated sufficient superiority so that Mr. McCrea's greater . seniority would not have been taken into account? Unfortunately, this question cannot be answered because the running of the test was so flawed that it is impossible to determine what result would have occurred had the test been properly administered. Moreover, while the selection committee in the Peter's Corners competition overtly c9nsidered the grievor's practical experience, ~' , I , 35 it still: placed the , greatest emphasis on ' the test results. Accordingly, it is not possibl,e to determine from the other factors considered whether or not the grievor was as good, better or not / as good as the successful applicant. We also dià not have the benefit of any submissions from Mr. McCrea about why he considered' himself to be the superior applicant. . ) Accordingly, we find in this case that by demonstrating the serious /_ deficiencies in the test, the union has discharged its evidentiary onus. Indeed, where the union can e~tablish that the competition itself is seriously flawed, as it has done in this case, we find , that ,the onus effectively shifts tô the employer' to justify the results and the decision it made in -reliance on those resu~t.~~ In n _.. , , the same way that it was,up to the employer to conduct the test .' properly, it was required to show that the test, which appears to " have been the determinative factor in qivinq the jab ,to Mr. McCrea -- ~ I: instead of the grievor, was conducted fairly. Theeviderice leads I::" us to the opposite conclusion, and as a resul t , we find for the 1 grievor in the Peter's Corners case. Remedv , Having found ,that the Peter's Corners competition was flawed, we ~ must now turn our attention to an appropriate remedy. The normal order in a case of 'this 'kind would be to direct the employer to re- run the competition. Such,an,order does not, however, make any sense in the instant case because the winner of the competition has ; , . , 36 moved on to another job, 'and the employer's witness agreed in . - evidence that the grievor, who was the only other applicant for the , ' ¡ position, was qUalified for it. .! ' It would not make ,sense to rerun a competition for a single candidate in these c~rcúmstances. What makes sense is to award the grievor the _Peter's Corners position. " Accordingly, we direct the employer to offer the Patrol Foreman ',s ,position to Mr. Smith. This order raises the issue of retroactivity. Normally, . job competition grievor receives 1n a rerun, a retroactivity only ~f he or she proves to be successful as a rèsult of the rerun. In the instant' case, ~ retroactivity' order cannot be made contingent on the results of the rerun às the grievor would . ". ~ - < .. , be the only candidate. And"in any event, we have dispensed with , a rerun in this case. Awarding the griever fullretreactivity runs the risk of overcompensation, for there is no way of knowing ,- "- 'whether the grievor would have been successful had the competition been properly administered in the first place. But not a~arding the griever full retroactivity is equally problematic. The g~ievor / is hardly responsible for the serious flaw in the competition which we have found goes directly to the result. In our view, the balance of these competin9 interests must, in a case of this kind, favour the grievor. It does not make any sense to discount the retroactivity by some amount based on the odds of the grievor i having won the competition in the first place, for to do so is merely to make a guess. It was the employer who had the duty of t' ~-. I r . 37 running a fair competition for it was the employer who had carriage I of the competition, and we find that it failed to meet its obligatiorr--"to run it fairly. Accordingly; we direct that the employer compensate the grievor for any lost wages and benefits, together ,with interest, to the date that Mr. McCrea began work as the Patrol Foreman in Peter's Corners. We remain seized with respect to the implementation of this award. " Dated at ottawa this 10th day of October, 1991. f!r?- william Kaplan Vice-C a'~erson J..C. Me " /k. (L, (' , --. pi.' ;t?-'. .", -&"- A. sta leta ' Kembel;: / f "