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HomeMy WebLinkAbout1979-0215.Cooper.82-04-14IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: G. Richards Grievance/Classification 3fficer Ontario Public Service Employees Union For the Employer: A.R. Rae (January! . J.&l. Kempton (March) Ministry of Community ar,d Sociai Services OPSEL! (Ken Cboper) and. Crievor The Crown in Right of Ontario (Ministry of Community and Social Services) Employer J.R.S. Prichard - Vice-Chairman S.R. Hennessy - Uember 3.H. Morrow - Member 1 ‘. -2- In this case, the grievor, Mr. Ken Cooper, grieves that he was improperly denied promotion to the position of Electrical Foreman at the Huronia Regional Centre. The position was awarded to Mr. Williams, a government employee who had not previously worked at the Huronia Regional Centre, as a result of a competition which included the grievor, Mr. Williams and two other candidates. The grievor alleges that he had “the best qualifications and more seniority than the successful applicant”. The relevant provision in the collective agreement is Article 4.3 which provides: 4.3 In filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform . the required duties. Where qualifications and ability are relatively equal, length of continuous services shall be a consideration. It must be noted at the outset that this provision gives weight to seniority as a criterion only in the event that the qualifications-.and ability of two or more applicants are relatively equal. It does not give weight to seniority merely - because an applicant is qualified for the position in question. As a result, we must decide whether or not the griever’s “qualifications and ability are relatively equal” to those of Mr. Williams. If they are,,the grievor wouid be entitled to prevail over I&Jr. Williams since the grievor possesses greater seniority. It is worth noting that since the collective agreement invokes seniority as a criterion only when the candidates are relatively equal and not -3- simply when the senior candidate is qualified for the job, it is always possible for an outstanding junior or outside candidate to prevail over a longstanding employee. In some circumstances, the sudden emergence of an outstanding outsider may shatter the promotional expectations of a longstanding employee of considerable experience and merit. In the case of challenging and responsibie jobs like the one in issue before us, it is possible for there to be a substantial gap between being qualified and being the best possible candidate. As a result, the risk of shattered expectations is perhaps greatest in cases like the one before us. Indeed, as will become clear later in the award, ‘part of the griever’s dissatisfaction with the process and resuit of the promotion competition can, in our opinion, be traced to the.existence of the gap between being qualified and the best. These comments are not intended to reflect in any way, whether positiveiy or negatively, on the merits of the weight which the parties have .,. .~. agreed to give to seniority as a criterion in promotion decisions. We have neither the knowledge nor the jurisdiction to comment in that way. The sole purpose of our comments is to clarify that the issue before us is not whether or not the grievor is qualified for the job. If that were the issue, we would have .~. ruled readily in the griever’s favour. Indeed, Mr. Buller testified for the employer to the effect that he considered the grievor qlialified for the job and that he had offered the job to the grievor at an earlier date. As a result, the remainder of our decision is devoted to assessing the relative qualifications of the grievor and Mr. Williams. As such, our conclusions should not be taken as reflecting adversely on the grievor but rather as conclusions derived from the comparison of two skilled and senior employees. - 4- The position of Electrical Foreman came open following the promotion of the incumbent, Mr. Ball, to a new position outside the Maintenance Department. A competition was arranged by Ms. Susan Gilchrist, the Personnel Officer at Huronia Regional Centre, in consultation with Mr. Graham Buller, the Maintenance Superintendent for the Centre and the immediate supervisor of the Electrical Foreman. IMS. Gilchrist and Mr. Buller agreed on the desirability of inviting an outside person with expertise in electrical work to become the third member of the Selection Committee. Mr. Seidel, an employee of the Ministry of Government Services with 21 years experience in electrical work, was therefore invited to serve as the third member of the Committee. The position of Electrical Foreman at the Huronia Regional Centre is described as follows in the position specification: ~: 2. PURPOSE OF POSITION To supervise the electrical, machining and welding operations at the Huronia Regional Centre, Orillia. 3. SUMMARY OF DUTIES AND RESPONSIBILITIES 1. Supervises tradesmen by:- - planning the jobs; laying out methods of performing the work to obtain maximum efficiency of staff; - assigning work load and duties, scheduling operations to coincide with other tradesmen and maintenance objectives; 60%- checking on-going projects and compieted jobs, evaluating quality of work and providing guidance where necessary; - ensuring safety regulations are met and compliance with appropriate codes and standards; - evaluating employees work performance, making re- commendation on merit increases and recommending and carrying out disciplinary action as required; - implements and maintains work schedules allowing for vacation and/or other leave of absence; - handling grievances at the first stage. -5- 2. Provides technical information and advises supervisor by:- - receiving and approving requisitions for projects and repairs, estimating time and material required; 35%- checking condition of equipment, structures, machines and services and recommending extent of repairs or replacement required; - requisitioning all materials for eiectricians, machinist and weider ensuring’ supplies are available to meet scheduled completion dates; - forecasting materials and equipment in conjunction with maintenance budget. 3. Auxiliary duties:- - trains subordinates as required; 5% - interviewing and seiecting applicants for vacant posi- tions and casual projects; - consults with visiting Ministry of Government Services employees and general tradesmen; - co-ordinates new telephone installation with the switchboard; - performs other related duties; - answers emergency calls as required; - replaces the Maintenance Superintendent as required. ..~ 4. SKILLS AND KNO’#LEDCE REQUIRED TO PERFORM THE WORK Preferably grade 10 technical education, completion oft,- a recognized apprenticeship in a trade and certifica- tion with the Dept. of Labour or an acceptable combi- nation of education and experience. Ability to instruct and inspect the work of tradesmen in the electrical, machining and welding trades. Ability to layout work and estimate materials and labour from complicated specifications.. Supervisory ability. On May 24, 1979 the three person Committee, interviewed each of the four candidates. In the interviews, the Committed [members posed the following questions: .I~ -6- Susan Gilchrist 1. Detail the responsibilities and accountability you have in your present position. 2. Why do you want to move from your present position? 3. What do you have to offer this job in terms of skills, aptitudes, training or related experience? 4. Describe how you see this job off Maintenance Electrical Foreman - what are the responsibilities? 5. Describe your manageinent/leadership style. 6. ‘What is your definition of abuse of sick time - how do you recognize it - how wouid you handle it? C. Buller: 7. Wnat would you do if you, as the Electrical Foreman, found an employee drinking on the job? 8. If this situation led to dismissal, what light would it put you in with your fellow employees - (i.e. could you do it, would you do it?). 9. What do you think of the Electrical Foreman being in the bargaining unit? 10. As Electrical Foreman, would you respond to after-hour emergencies? Paul Seidel: 11. What experience have you had in estimating and design work? 12. What would you do if you could not get a piece of electrical equipment going - what options do you have ,open to you? 13. What experience do you have in trouble shooting heating :-controls and equipment controls? 14. When does the Hydroelectric (HEPC) code require an inspection? 15. What test equipment do you require for this position? -7- 16. Under what conditions would you replace a burnt fuse with a piece of copper wire? 17. What would you do if three emergency calls came in to you at once? (1) elevator stuck between floors with residents in the eievator; (2) fire alarm trouble signal coming from outlying building; (3) only Yz power in the Infirmary. 18.4160 volts - how do you feel about working with it? Susan Gilchrist: 19.In your present position what do you find most frustrat- ing and how do you handle this frustration or stress?. At the conclusion of the interview process the members of the Selection Committee graded all of the candidates. The results can be summarized as follows: RATING SHEET Susan Cilchrist Average Paul - Seidel Graham Buller Charles (Lou) Williams George Valiquette Ken Cooper Roy Glover 80% 'h/60=76% 41/50=82% 41/50=82% 74% 40/60=66% 40/50=80% 38/50=76% 56% 37/60=61% 27/5O=i4% 26/50=52% 56% 34/60=56% 27/50=54% 29/50=58% -8- More specifically, the griever. and Mr. Williams can be compared by presenting a’ summary of the criterion by criterion evaluations of the two candidates as determined by the three Committee members: I‘ POSSIBLE TOTAL Seidel MARK C~ w - RATING Buller c Gilchrist c .w 1. 3 5 Communication Skills - ability to hear and understand 7 - ability to articulate 4 6 5 6 3 3 Lo* 12 i3 is 2 5 2. 3. Related Experience 5 7 a 6 8 7 7 Basic Understanding of What the Work Involves 10 Understanding of lMinistry Functions 5 4. 2 3 5 5 2 5 5. 6. 7. Problem Solving/ Analytical Ability 10 5 8 6 8 6 7 .~ 1 3 1 2 1 3 Total Communication/ Personal Suitability 10 - abilitv to relate appropriately - demeanor - approach - judgement 3 8 5. 8 6 8 37 46 55 urn 26 41 5.5 3iT TOTAL c -. coop W - Williams -9- It will be noted that the Committee unambiguously preferred Mr:Williams to the griever in the overall rankings, putting Mr. Williams first and the grievor third in the competition. Perhaps even more strikingly, when the comparison is broken down ‘criterion by criterion, it will be noted that members of the Committee did not prefer the grievor to Mr. Williams with respect to even one of the individual criteria. In sum, Mr. Williams was the Committee’s unanimous first choice overall with the griever a quite distant~ -‘.~ third (80% v. 56%) and there was no criterion on which the Committee piaced the grievor ahead of Mr. Williams. The Committee’s judgment does not, of course, end the matter. As this Board’s arbitral jurisprudence (see &Inn 9/78, Remark 149/77, Saras 139/79 for example) makes clear, we. must review the decision and the process by which it was taken to ensure that the employer complied with its obligations under the collective agreement. Counsel for the grievor took the position that the grievor and Mr. Williams were in fact “relatively equal” in the sense that there was no “substantial difference” in their relevant ability or qualifications for the job. As such, the griever’s position invited us to review’the factual judgments made by the Selection Committee. To address the issue of whether or not there was a “substantial difference” in the qualifications of the two employees, we have reviewed all of the evidence. Having done so, we have concluded that Mr. Williams was better qualified’ than the griever by a substantial margin. While we do not think any useful purpose wouid be served by writing a detailed - 10 - review of all the evidence heard over two days, a brief. summary of our essential findings is appropriate. The grievor has worked at Huronia in 1953 and since 1960 has been classified as a Maintenance Electrician. fin that capacity he has done a very wide variety of tasks at Huronia and knows the physical plant very well. Furthermore, when his supervisor, Mr. Ball (the (Maintenance Foreman prior to Mr. Williams’ appointment) was on holiday each year for almost a month, the griever assumed most of his responsibilities. As a result of his many years on the job with an unblemished record, the grievor “knew the work well” (to use the expression of Ms. Gilchrist) and had had some part-time supervisory experience. .-. Mr. Williams was first employed by the government in 1966. Prior to competing successfully for the positionof Electrical Foreman at Huronia, he was in charge of the Preventative Maintenance Programme at Pine -Ridge School, a position that involved supervision of two maintenance mechanics. He also had a strong record and varied experience in both electrical and plumbing work. In his interview, Mr. Williams particularly impressed the Selection Committee with his appreciation of the supervisory aspects of the job. Mr. Seidel put it perhaps most strongly when he contrasted his attitude towards the two ,candidates; he had a “real good feeling” about Mr. Wiliiams’~capac.ity for the position while he would have been “extremely apprenhensive” if the job had gone to the grievor. - 11 - The selection of Mr. Williams over the griever and indeed the grievance before us cannot be fully appreciated without some reference to the state of relations between Mr. Buller (the Maintenance Superintendent) and the grievor. It should’ be remembered that if the griever had succeeded in the competition, Mr. Buller would have been his immediate supervisor. While it is unnecessary and undesirable to go into detail, it became abundantly clear through the evidence that, to put it most euphemistically, relations between the two men were not ideal. Without in any way attempting to sort out the origins of their differences, it is fair to say that the reality at the time of the competition was that the two men were not enjoying a good working relationship. It further became clear that there was a very real likelihood that this relationship was not about to improve and that the promotion of the grievor would have put a further strain on their relationship. This state of affairs no doubt influenced the, Selection Committee’s decision. Indeed, there was evidence from two members of the Committee .that the griever verbally denigrated Mr. Buller’s managerial abilities even during the interview. The fact ““‘- that this conduct was a factor in the overall decision is not, in our opinion, improper. There was no evidence suggesting that Mr. Buller was unfair, unreasonable, discriminatory or otherwise improperly motivated in his behaviour towards the griever and thus evidence of the difficulty that the grievor had in accepting Mr. Buller as his superior must taken into account in assessing the griever’s suitability for the disputed position. In assessing the evidence and the opinions formed by the members of the Selection Committee, it is also relevant to note that the process of decision - 12 - was a fair and sensible one. The qualifications for the position were reasonable; the Committee membership was sensible reflecting a .mix of internal and external appraisers; the interview questions were relevant and identical for each candidate; the scores and opinions of the Committee members were recorded; and each candidate was given a fair opportunity to put his best case. Panels of this Board have not hesitated to criticize and overturn promotion competitions where the.‘procedures and process have been inadequate (see, .for example, the decision of the Vice-Chairman in Re Quinn (9/78)). However, in the case before us, it would appear that the Ministry has been guided by the Board’s earlier decisions and has acted to ensure the propriety and, fairness of the process. While perfecting the .process does not relieve us of our responsibility to review the decision for its substantive.correctness, it does, however, make it a gobd deal easier to -find that the conclusions and judgments of the Selection Committee members were reasonable and founded in fact. In sum, we find no reason of process or substance which would justify disturbing the Ministry’s decision to select Mr. Williams as Electrical Foreman. We find that the griever’s qualifications and ability were .not relatively equal to Mr. Williams and thus, pursuant to Article 4.3 of the collective agreement, seniority had no role to play in the selection process. . . . The grievance is dismissed. - 13 - DATED at Toronto fhis 14fh day of April; 1982; J.R.S. Prichard Vice Chairman I COIlcuT - addendum to follow S.R. Hennessy Member I concwq J.H. Morrow Member /lb ADDENDUH -____---------- I have read and carefully considered the Chairman's assessment of the situation involved in this grievance. 'There is, however, one aspect of this sort of case which concerns me namely the apparent lack of, what I would call, "selection board sensitivity". Let me first state that I recognize and acknowledge, at least within the ambit of this collective agreement, the employer's control of the selection committee process and the substantive procedural improvements in this area in line with many of this Board's awards over the last few years. Working relationships can and do vary for all kinds of reasclns. Employees do not, however, usually have a viable alter- native when faced with~a difficult or less then ideal personal situation. This dilemma is reinf,orced by the existing power +at+nship in employer-employee relations and compromises of the sort found in article 4(3) of this and many other collective agree- ments. In this kind of situation the inclusion on the selection committee of a person or persons who have had a difficult or less then ideal relationship only serves to plant the seeds of discon- tent. ThiS,case is a prime example of the problem. The inclusion of Mr. Buller, given the past relationship, was akin to the pro- verbial'waving~ of a "red flag" in the griever's face. Obviously this action would tend to create an unfavourable reaction from the griever . The question that remains ,in my~,mind is whether this was done intentionally or thoughtlessly? ..$ The Board quite succinctly poin~ts out that in its opinion there was no evidence, "Buller was unfair, unreasonable, discrim- inatory or otherwise improperly motivated.in his behaviour towards 2. the griever". I personally have great difficulty in adopting this statement. I would have found, based on the evidence of Mr. Buller's inclusion on the selection board, his choice of questions (for example, question 9) and the history of strained relations between them that his inclusion was an extremely unfortunate one. Notwithstanding the fact that he was the griever's super- visor and acknowledging the employer's rights both parties would have been better served, at this important and difficult time, if the employer had considered and exercised more forethought and de1icacy.a well as practicality in carrying out' the selection process. The decision of the selection committee should, in my ~opinion, be fair, impartial, non-discriminatory and reasonable but as importantly it must also be seen to be all of these things by those:.involved. r, . As the Board so aptly puts the situation, "the risk of shattered expectations is perhaps greatest in cases like the one before us". The type of selection committee utilized in thi's case .~ while not openly transgressing the scope of decision-making authority leaves a lingering and often festering sense of injustice which can only work to the detriment.of the parties relationship. S.R. Hennessy Board Member