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HomeMy WebLinkAbout1979-0022.Hoffman et al.81-05-29IN THE MATTER OF AN ARBITRATION Under The CROl';N.EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Mr. H. Hoffman et al Griever - And - The Crown in Right of.Ontario (Ministry of Transportation & Communications) Employer Before: Prof. P. G. Barton Vice Chairman Ms. H. J. Laing Member Ms. M. M. Perrin Member For the Griever: hlrs. L. Stevens, Grievance Office Ontario Public Service Employees Union For the Employer: hfr . G. Stewart Ministry of Transportation & Communications Hearing: April 30, 1981 -2 - On December 15, ia78 Mr. H..S.E. Hoffman, Mr. W.G.F. MacDonal, and Mr. E.G. Tuson filed grievances against the Ministry of Tfansport and Communications alleging a violation of Article 4.3 of the relevant Collective Agreement and asking that competition number S/W78-23 be/reopened. Competition S-W78-23 concerned the '. I position of Area Vkhicle Inspector, London and at the time of their application 'the grievers were Mechanic IIsin the Lambeth ~Garage near London. The successful applicant G.D. Spence was notified of the hearing, was present and took part by giving evidence. He was asked if he wished to have independent counsel present,given that his position was likely to be in jeopardy and he declined to have counsel. The position of Area Vehicle Inspector involves supervision of the process of private inspectionsof motor vehicles, both passenger motor vehicles and heavy duty motor vehicles. Under the system of "privatization" the provincial government some years'ago moved to a system whereby private garage owners are licenced to issue safety standards certificates. A substantial part of the time of an Area Vehicle Inspector is supervising the issuing of these certificates. Some of the time of the Inspectors is spent in traffic lane inspections; some of it is spent investi- gating complaints and laying charges and testifying in court, and some time is spent inspecting school buses, conducting seminars and training sessions, and work of that sort. It is safe to say that 70% at least of the work is involved in supervising private inspections and a thorough knowledge of the mechanics of motor -3- vehicles is required. Indeed, the requirements of the position are stated to include a grade 12 'diploma (preferred), a mechanics \ certificate Class A, current knowledge of vehicle safety standards and vehicle design r hanges, knowledge of the Highway Traffic Act, Public'Vehicles Act' and related re.gulations, and an ability to ! communicate effectively. In addition the job description suggests C' t.hat many years progressive experience in the automobile service industry and/or related fields with considerable public contact involved is necessary. The competition was posted on October 25, 1978. Prior to this certain other relevant events had occurred. In 1977 the Min istry decided to reduce the staff because it had too many mechanics. It indicated to the mechanics that it was going to offer a series of familiarization courses to make these mechanics familiar with the position of Area Vehicle Inspector and with a second related program involving highway inspections. Early in . 1978 the first familiarization course was offered. Of approximately i thirteen applicants five were interviewed and four were chosen .for the course. Allof the grievors applied for the course and none were accepted. One of those who accepted and took the course ~prior to the competitionin question here was Mr. Spence the successful applicant. More will be said concerning the selection process later. Following the selection of Mr. Spence and the filing of the grievance certain other matters occurred. 'In particular the Ministry seems ~~___ [i -4- & to have somewhat reluctantly offered a second familiarization course at the request of the Union. This was offered in February 1479 and one of the conditions attached to the taking of the course was that "e ployees who take advantage of the training 7 program must apply$for D and V vacancies in highway carrier and I vehicle inspectiop." For a number.of reasons including the . . presence of this condition and the existence of outstanding grievances,none of the three grievers applied for this training program. Because only one person did apply the training program was not offered. A second position of Area Vehicle Inspector came open and was posted on August 19, 1979. None of the grievors applied for this position and the successful applicant was a person who had taken the first training course. With this background we will now take a more specific look at, the selection process. All applicants filed.application forms which application forms were studied by.the Selection Board made up of three persons. 1. M. Mylemans. Mr. Elylemans is a District Vehicle Inspector in London, in charge of all Inspectors,,who would become the Supervisor of the successful applicant. 2. M. McIntyre: Mr. McIntyre is a District Manager, Drivers and Vehicles, London, the Supervisor of Mr. Mylemans. 3. Dan Varga. Mr. Varga is Personnel Officer MTC London. This Board interviewed all candidates and asked a Series of questions, the answers to which were weighted according to various factors between 1 and 10. The questions are as follows: -5- 1. What personal qualities do you have to make you particularly suitable for the position. : 2! What is your understanding of the grievance procedure. 3. What training 7 ourses have you taken in recent years. 4. How many yearstdid you work in the trade before MTC. 1 5. Have you ever done SSC inspections, if so, how many. ~6. Wha: experience do you have dealing with the public. 7. Have you any court experience, 8. Do'you have any experience in any type of enforcement job.' 9. Do you have any previous medical disability; 10. Would you be able to work outin the cold all day. 11. Have you worked without supervision. 12. What is your driving record. 13. Will being in uniform bother you at any time. 14. Would you consider moving if required. In addition to these questions other probing questions were asked and the answers to these were noted on score sheets. The personnel files of the applicants were not considered nor was any evidence sought from people who had supervised their work as mechanics. Unfortunately the score cards for each of the three members of the Selection Board could not be produced at the hearing and only the score card of one was available.Onthis card the successful applicant was ranked first, Mr. Tuson was ranked second, Mr. Hoffman was ranked third, and Mr. MacDonald was ranked fourth. -6- A memorandum of November 24, 1978 to E. J. McCabe, Regional Ditector from D. F. Walton, Manager,Drivers and Vehicles indicates that the competition was complete, eight persons were interviewed and that all three P elected Mr. G. Spence as the successful applicant The th>ee grievors Y 'ere indicated as unsuitable for the position. A summary:of the competition dated November 22, 1978 e. s,igned by D.F. Walton indicates the acceptable candidates preference as: 1. G. Spence 2. G. Waldron 3. W. MacDonald 4. W. Huber. in order Article 4.3 of the relevant agreement reads as follows: "In filling a vacancy, the employer shall give primary consideration to qualifications and ability to perform their required duties. Where qualifications and ability are relatively equal, length of continuous service shall be a consideration." This now.familiar clause has been interpreted in a number of Grievance Settlement Board Awards including Re Remark, 149/77, Quinn, 9/78, Gavel, 145/80, Saris 139/79, and more recently Carrington. The test to be applied by a Grievance Settlement Board has essentially been thatapplied by Arbitrators in the private sector, with particular attention of course being paid to the wording of Article 4.3. This test has been substantially influenced by the controversial case of Re Great Atlantic and Pacific Company of Canada Limited and Canadian Food and Allied Workers, Local 175 (19761 13 ,L.A.C. (2d) 211 n., 76 CLLC 332 para. (leave to.appeal refuse LAC lot. cit.). Much of-the debate concerning that case revolved around the question of whether or not an arbitration board is enqitled to substitute its judgment for the judgment of the management. It seems to be accepted that that is not the function of the arbitration q'oard. What is important is that the board '. 1 analyze the proces&hich was followed by the management in the selection: of a canhidate'to see in the first place whether or not .A, the selection process was properly done. As stated in Quinn involving -- this same Ministry,: "In meeting the obligations under that article the employer must employ a process of decision'making designed to consider the relevant qualifications and ability of the candidate in a competition which will ensure that sufficient relevant information is adduced before the decision makers in order that they may make their comparisons in the confidence that they are able to thoroughly and properly compare the qualifications and the abilities of the competing applicants." This test is of course applied after a test of whether or not the judgment was honest, unbiased and not actuated by any malice or ill will toward a particular employee. Included in the process of reviewing the selection process is a requirement that if certain questions were asked of each applicant, those questions be tested to see whether or not they reasonably relate to the req.uirements - of the job. A finding that some of these questions were not so related, provides some evidence at least of an irregularity in the selection process. In Quinn it was held that the Selection Committee was not sufficiently well informed and this Board directed the Ministry to'reopen the competition and try again. In particular the Board there was concerned that there was no evidence given of any regular system of work performance appraisal and that no -B- supervisors were asked about the candidates. The Board was also coqcerned that only one member of the Interview Committee read the personnel files of the applicants. and that there were few if any questions concefning one of the qualifications required, super- '. visory skill. : The Board was also concerned that the decision seemed to rest exclusiveiyon the interview. That case seems to us to be strikingly similar to this one. In this case none of the members of the Selection Committee read the personnel files of any o~f.the applicants. This seems to us at the very minimum to have been unusual. No members of the Selection Board were persons who had directly supervised any of the candidates in their daily work. Additionally, no reports from supervisors of these persons were obtained and utilized. One of the questions asked, concerning knowledge of the grievance process is one which we have some difficulty finding to be relevant. we have some difficulty judging the selection process because of the absence of data concerning the raw scores, obtained at the interview. It seems unusual to us that the raw scores provided by one of the members of the Board indicate a certain ranking of candidates whereas in the competition summary referred to earlier only one of the candidates,Mr. MacDonald,who is ranked third by the one interviewer appears. Thus we have no way of knowinc what the raw score totals~ were and none of the witnesses were able to enlighten us on that point. -^ -9- -3; As in Quinn the person seems to have been chosen solely on,the basis of the interv,iew and we are unable to say that the selection process was properly carried out. In so doin { we do not wish to comment on the advantages gained'by one persod by ,taking part in a training program prior i i to a competition, nor do we wish to comment on the wisdom or otherwise of the grievors in not taking part in later training programs and in not applying for the later position. Because we do not have adequate information to make our own judgment as to who should be the successful candidate, having only a part of the information which was before the Selection Board, which information we have held td be insufficient, we are not prepared to make the judgment. We therefore allow the grievance and remit the matter.back to the Ministry to reopen the competition. and reconsider any of the eight persons who were interviewed in 1978 who wish to be reconsidered. 'We feel it appropriate to comment that on March 2,9, 1979 the same Ministry received the award in Quinn which pointed out the deficiencies in the selection pr,ocess. At that time the Ministry had had in hand for three months these grievances. How much better it might have been if the Ministry had then reopened this competition and resolved the matter at fha't time. We do not wish to remain seiied of the matter, having full confidence that the Ministry has the ability and judgment,to properl) chose the appropriate person. - 10 - DATED AT London, Ontario this zq o- day of May 1981 Vice-Chairman H. Laing Member M. Perrin Member I, concur/dissen.