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HomeMy WebLinkAbout1980-0140.Caston and Therrien.84-02-06F ; “, ONT*RK) c*ovdN Ehw‘O”C~S ; , / GRIEVANCE I SETTLEMENT BOARD IN THE UATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before:: For the Grievers: For the Employer: He&ings: OPSEU (Gerald J. Caston & Clifford Therrien) Grievers - and - The Crown in Right of Ontario (Ministry of Health) Employer M.R.~ Gorsky. ~' Vice Chairmdn~- -. M. Perrin Member'. A.G. Stapleton Member G. Richards Grievance Officer Grievance Section Ontario Public Service Employees Union J. Call-as RegionaL Personnel Administrator Ministry of Health Penetanguishene May> 25, 1981 June 15, 1981 Ltzs:: 1'::: June 16, 1981 April 21, 1983 i ‘# i ..,., :::, ,; ;i ‘ ‘; ..‘:’ ‘.~ : ;: :: ., (,. DECISION Both of the Grievors contend that the employer violated the provisions of Article 4.3 of the Collective,Agreement in failing to award them the position of Senior Attendant in the Attendant-3 Oak Ridge classification. It was the position of the Union, on behalf ,of the,Grievors, that they had the right to be appointed to two of the tenvacancies for the Attendant 3 position that .became available in January of 1980, because they had seniority over the employees chosen and that their qualifications and ability were relatively equal to those of the successful applicant. The parties agreed that the,Grievor, Mr. Caston; would be compared with one of the successful applicants, Mr. Brophy, and that the Grievor, Mr. Therrien, would be compared with another successful candidate, Mr. Pilon. The Law ~,' Because of the position taken by the Union as to the standard of review which this Board ought to undertake of the decision of the employer, it will be necessary for me to set out, in some detail, my reasons for disagreeing with that position. The union submitted: '"We contend that the Board not only has the authority, but also the duty to closely scrutinize the decision of the selection committee because it is bound bv the decision of the Ontario DiviSional Court in re Great Atlantic and Pacific Company~of Canada Limited and Canadian Food Andy Allied Workers Local 175, [76 C.L.L.C. para. 14,056 (Ont.Div.Ct.1. hi "The interpretation of the A&P case as imparting a standard of correctness'rather than of reasonableness in reviewing the employer's decision has been the practice of this Board in a significant number of decisions." My disagreement with this Union submission is only partial: I agree that the A&P case-did not impose a standard - of mere reasonableness. I disagree, however, with the submission that the case imposed a standard of correctness, as that term was defined by m. Richards, on behalf of the union. The pre-A&P philosophy referred to by the union was - analyzed in the'award in Re British Columbia Housing Management .;.Y.-. Com'n: and Service Employees' Int'l Union, Local 224.(1977), 15 L.A.C. (2d) 121 (J. Weiler). I believe that the arbitrator ( '.. in the British Columbia Housing case accurately set out~the pre- A&P philosophies which were found to apply in ~promotion, cases.,. He stated (at p.124): la thee& rcp+rted awwds arbitrators took the position that the proper review of management’s initial judgment of an emPlow%s’ ability should be limited to a subjective inquiry i whether this assessment was made honestly. in good faith and did i not.discriminate between employees. (See e.g., RC ~',titid ,,tfint 1 U’C+W% L?ACO~ 19031 and Camdim ‘-Industries Ltd.; ,&&l Workers (194S), 1 L.A.C. 234 (Roach))., While this approach. elimi- .; natedgnxsabusesoftotal management discretion,,nevertheless,it-~~~‘, : did not deal with the situation where management’s, dj&etion.i:- might be ha fide yet vex wrong. Theti seems.to be no pter. reason to give’management total freedom to act in good faith in the seniorit? field than in the area of discipline where this pstore had been resected. It will be noted, infra, that this was the positiontaken by the .' arbitrator in the A&P case and rejected by the Divisional Court. - Later at p.124, Professor Weiler stated in the B.C. Housing case: Chafing under this limited review of management’s assessment of employee’s abilitv, ~thc extreme view from the trade union side . urged that as with d’iscipline, arbitrators should have total freedom : to substitute their judgment for management’s whenever they dis- agreed. In other words, the arbitration process u'as to olTer full al)- pellate review .of management’s initial judgmentr C’. , i ‘..’ This is the position that Professor Weiler,at pp.128~9 c: . i,:::. of the B.C. case:, concluded was held by the Divisional Court in the A&P case. Professor Weiler stated: - In the f&e of this arbitral opinion, ihe Ontario Divisional Court in the A & Pease has ruled that an arbitrator must not limit himself lo an enquiry as to the honesty, absence of n~alafides and reason- ableness of management’s decision, but must compare the respec- . tive skills and qualifications of applicant for the job in question. In reaching this conclusion, the.?ivisional Cxut noted that if the par- ties wanted ..to limit full scale review on .the me& of management’s decision, “then the parties in the collective a- ment should jnsure that management’s right..in. this re@ is unfettered’? . A number of other arbitrators, including J. D. O'Shea, Q.C., in the case of Re Canadian Broadcasting Corp. and National Association of Broadcasting Employees and Technicians (1980),26 L.A.C. (2d).. 34, did not view the A&P case as directing "that the - board of arbitration act as an 'appellate body from the decision of management'..." Professor Weiler, at p.125 in .the B.C. Housing case sets out another view developed by arbitrato,z:+;pri6r to the ASP case. - In the face of these two extreme positions, arbitrators developed : ~. a third. intermediate posiCon between these two poles; Under this Re ‘L’.E.W.. Local 523 aud b’rrim Carbide Cmodo Lfd. (1967), 18 L.A.C. 109 (Weiler) at pp. 117-8. I Governed by this principle of arbitral restraint, arbitrators have perceived their role in reviewing management’s decisions on an employees’ qualifications as involving two enquiries. Initially, the ‘. arbitrator must determine the requirements of the job, and then .~~. against those requirements, assess the reasonableness standards or criteria used by the employer: Having made that dewrmination, the arbitrator must then examine the manner. in which the em- ployer applied those standards lo the various applicantsfor the job \-acancy. (See generally. Brown and Beatty. Ca,todio~ Labour Arb~fmtion (1977), at pp. 253-60.) An examination of this statement discloses that there are three elements in the~Company's.decision which,a board must review. The first, is the ~requirement that management's judgment be exercised in a bona fide manner. -- As.will be noted infra, the Divisional Court in the A&P case did not disagree with such a - standard. The second test concerns the reasonableness of the decision. As will also be seen from an examination of the A&P - case, this is also a requirement of the review by the board. The additional requirement of,completeness, in the sense that the action of management be carried out in accordance with “proper principles and criteria" and "that all relevant considerations have been averted to, and that all irrelevant facts have been excluded from the process of decision," (See B.C. Housine~case at ~9.125) representsa~third:factor in the review - one that I views as also being<.part of the ~approach mandated bye the Divisional : Court,, in the..A&P case. It is my conclusion that the .Divisional Cburt, in the ALP case, - adopted the standard of review as set out in the U.E.W. cdse decided by Professor P. C. Weiler, and referred to by Professor J. Weiler in the B.C. Housing case at p.125. It is my conclusion that Professor Weiler, in the B.C. Housing case, misapprehended what the Divisional Court had.stated in the A&P case;and that the - Co&t, in fact, in its direction.to the aboard of arbitration, did ~so in a manner which was entirely consistent with the position taken by Professor FJeiler in the B.C. Housing..case.. At p.131 of that case, it. is stated: i 31 conclusion I would adhere to the prevailing consensus among arbitrators, that the proper scope of arbitral review of both management’s setting stan- dards or qualifications as well as its assessment of employees’ abil- ity should ensure that (in the words of the arbitrator in Kysor of Ridgetam, at p. 888): The judgment of the campany must. firrs be honest and unbiased. and not actuated by any malice or ill-will diwted at the particular employee (or any undue fawur for another claimant for the position) and sea& the manage- rial decision must be one which a reasonable employer could have rexbed in the light of the facw available . . By “reuonably”. I mean that the employ& judgment must be one which has taken into aomunt all relevant consideralions and which hai not been b+ q” any ~factors which we im- proper wiihin the scope of the agreement It is significant that the reasonableness of the decision was linked by Professor Weiler to the question of whether the employer, in assessing the factors to be considered by it in arriving at its determination, had done so completely: that is, by considering all relevant evidence and discounting all irrelevant evidence. I have concluded (infra) that this is exactly what was directed by the Divisional Court in the A&P case. Accordingly, the conclusion arrived at by Professor Weiler in the B.C. Housinq.case (and, as well, by.many other arbitrators) , .&at the Divisional Court in the A&P case had directed the board to act as an appellate body from thedecision of management,. resulted from a misreading'of that case. ..~ y-,. The source of the conclusion requiring the employer to establish that.its~ decision was correct was adverted to by Professor Weiler at p.126 of the British Columbia Housing case. He cites Brown and Beatty, Canadian Labour Arbitration, at pp.258-9. Although +ing infrrqumtly. il hm been suggesti that this limiwd and nwmr sundud 01 review on the second component of the employer’s d=iaion should not prevail where the panies have nol. either in the seniority pmO’irionr or in the management’s rights claw oi !iw sgreermm~, speeihcally confirmed that the wtual determination of the employee’s rbilitin or qualifioliunr is 10 be based on “tht pinion or judgment” 01 the rmplq\er Rather. it is said that the employer must aublirh that ill decision was correct. I c . He continued at pf’.. 126-T.. In otheF6ordsl a ‘kinority of arbitral awards have departed from the policy of arbitral re%rainbnaintained in, Kysor ofRidge- fotcn. snpro, by distinguishing these eases on.the basis that the par- ticulaiaeniority clause in question provided that the assessment of an employee’s ability was to be based on management’s opinion. If such a qualifying phrase is provided then the principles of U&n Carbide or Kysor qfRidgeforn apply. But if the agreement is silent \hen an arbitrator may review management’s assessment as a ,question of fact. The semjnal decision espousing this approach is that of Professor Christie in Re TeztiEe Workers Un.io~ ond Lady Golf Towels Ltd. (1969). 20 L.A.C. 382 &here at pp. 888-4 he ob ‘served:. On the other hand. the semnd decision, whether the employe?s in this use am “relativsl~ equal” in the qualifications required by the campany is. under this collective agreement..a matter to be determined by the board of arbitra- kin. .4rtick 3.01, which empowers the company to “promote” etc.. is esprasl~’ subject to provisions of the agreement; including art. 9.08. the seniorit.! cIause. thus it is not enough that the company satisfies this boaid that it did not act in an arbitrary. discriminatory or unreasonable fashion or in bad faith in apply- ins its own rtandnni_af_Slualifi_otionr. !~~,.ls,~,+sfy the buard.thstAaul plied the standard correc$G oat’adhermg to 5emorR~. Where. s I” the two Cni,,,, &t,;do cases cited above, the right to determine qualifi~lions is es- p,,& given to management the power of an arbitration board u-ould awar . (c b liticed in rerpect of this “cd d&sian as well: But such is MII the else here. The ‘Divisionai’burt, in the’ ‘A&q case, at ~~-334-5, identified thoke~cases where an employer would not be req&ed. ~. ., to~go beyond demonstrating its good f~aith in thee administration of the particular.provision of the Agreement: 1.’ If the relcction and phcemcnt of cmploycer ‘in more responsible positions is to bt solely a mmagement function, then it is not difficult for the parties to a collcctivk agree- ment 10 xt forth the, understanding. Whether managcmcnt is to be unfettered in such a decision, or whether no prom* tion 4, bc made without the consent and agreement of the union. ore matters that un form pxi of the collective agreement ,Howcvcr where, as hcrc, the collective lgrecmcnt ItatCS: then it is open to a mcrnbcr of the union to take grknnce proceedings if be or she is of the opinion that the company has not complied with the requireunnts of the collccti”e rlgreemcnt. * - , _ :. _* It is implicit in the language of the Court in the A&P case that it is necessary that there be more than an initial - grant to the employer enabling it to make the determination; there must be a clear indication that the employ~erhad been given an unfettered discretion'to decide .that the vacancy was to be filled in the judgment'of management. This might be found in the management rights clause or elsewhere in the.agreement. ' In the absence of such an unfettered discretion having been granted to management, the middle position, as 'enunciated at p.125 of the B.C. Housing case,was the one mandated by the Divisional Court in the A&P case. - Those pre-A&P cases, which Professor Weiler .. - identified, at pp.l26-127 oft the B.C. Housing case; as having departed, from the policy of arbitral restraint, did so on the basis of there being a "qualifying phrase" that then "assessment : ..:,: of any employee's ability was to be based on management's opinion." Absent a grant of such authority ("if the agreement is silent"), they would hold that an arbitrator may review management's assessment as a question of fact. The Divisional Court, in the A&P case, identified the. two cases more precisely. In one case, management was granted the unfettered power to make the assessment (at p-335). The Divisional Courtin A&P found restrictions on management's power in that case -~indeed, there would have to be, as-Professor Weiler stated in the B.C.. Housinq, case, at p.124, as otherwise "this arrangement I* would be tantamount to delegating to management the power to grant or withhold seniority rights as it sees fit." I would add, that it p.39: "If the judgment of the Court in the A&P case is read without any preconceivedopinion as .to what the Court decided, it is readily apparent that the Court did not direct the board of arbitration act as an 'appellate body from the decision of management,on the issue of a new hire in the face of the seniority decision."' He then quotes extens,ively from pp.~ 33445~.of .the 'A&O case. - :., The baud vas of the opinion that the,principle upon which it relied did non depend upon the inclusion in the collective sgreement of any special laxgug~ ~. ~. to the effect that the employer had exclusive dkaetion to decide thnt the .~ ~. vncu~y n-u to be filled in the’judgmezit olmanagement Reference was made..-. ..: to the decision of Mr. JustIce Reach &g as an ubitmtnr in Re Cadion “-~ Indvatricd Limited. 1 L&C. 234 wherein it was stated: ‘In this and every lik;‘eue where there is mom for honest difference of opinion. If it appeuku here admitted tc be a fut.-!hat the empbyer hu acted hone&y. we do not feel that P Bonrd of Arbitratom would be justiKed . . . . ‘. r’ would make meaningless the reference to the qualities to be assessed, if management could decide' upon them without being required to demonstrate it had done so properly, in the absence of specific language permitting it to do so: that is, with an unfettered c~ ~discretion. Mr. J. D. O'Shea, O.C., in Re Canadian Broadcasting Corp. a~nd Na~tional~ Association 'of Broadcasting Employees and Technicians;. (1980) 26 i.A.C. (2d).~34, quite $roperly stated at The board ad. cre.ture olthe coueetivc *prement mu, then we t4 it that the provisions of the collective agreement have bee,, complied wiaith; iti mk cannot be more or less than tibia. The honesty and lack of malofidcs in maldng the decision am facton to be taken intc account. So, too. is the question of whether or not the employer has wt.4 weasonsbly. Indeed, in determining the ‘i-easonablene~” of the employer’s dedsibn, the baud may go a long way LO determine the issue submitted to it. However, once the collective agreement makes pmvisions w to the method of selection of employees for prnmotions. then the baud must we to it that those pmvisiins have been vmplied with and in M doing, it camot restrict itself to determining whether the employer acted honestly and reasonably. If the board is not to make such a decision. then the puliea in tie collective agreement should insure that i, ,.. . mmagemht*a right in this regard is unfette+d. [DCciIiGn remifte~ As a mwlt. 1 am of the opinion that the mutter should k remitted to the board to determine whether or not the employer in selecting Miss Holloway for the position of Assistant Head Cw.hie~, complied a-ith Article 9.04 of chc mllectire .gmement. The iuve to be detetined by the bard will lx one 01 tomparing the mrpectivc sldk d qutiationr of Mm.. Ilawson md Miu HoUoway for the job in question. but without limiting itself 10 determining if th employer’s stkction was honest ud wnabk. CatrOfthr”WthtOth&hlt. __ \ ~. ..’ :.. ,-., .I.. .. :: ‘,’ :. ./: Unless the several parts of the Court's decision, in the A&P case are related one to the other, it might be - erroneously concluded that the Court had identified the responsibility Of an arbitrator as' requiring a fresh-and immediate determination of the griever's right to.the claimed job under the standards set out in the collective agreement. At p.335 of the A&P case,the Court stated: - "The Board then framed the dispute in the following words: 'Thus the~issue in the case reduces to one of comparing the respective 'skill and qualifications' of Mrs. Dawson and Miss Holloway for the particular job in question.' (1 Lo At p-335 the Court repeated the 'issue,as follows: "The issue to be determined by the Board will be one of comparing the respective skills and qualifications of Mrs. Lawson and Miss Holloway for the job in question, but without limiting itself to determining " if the Employer's selection was honest and reasonable." Furthermore, at p.333; the~~court repeated its agreement with the statement of the issue: ., "Attheroutset~,+the.Board had..quite ~properly--. : and:.correctly:set-outthe.issues to be determined.:,.. It then appeared-to limit itsconsideration of the question." ..,. ,. The Court(at p-334) faulted .-the Board of Arbitration. for the way in which it undertook to determine the issue: "The applicant submits that the board put to itself the wrong question, namely, whether the employer in giving the job to Miss Holloway had acted honestly, reasonably, without discrimination and without bad faith. Whereas the question ought to have been, did the employer, on the basis of seniority, skill and qualifications,,.' _ award the ~full time job .to Miss Holloway rather'."' than the grievor? . . . . "By relying upon this principle the board. has, '.I think unduly restricted itself and has failed tq deter,mine the issue placed before it. ._ ..: ‘.>;,, .A ~::; :.. ,~ :.,.: j ;’ .:y ::.:y .;‘: ..‘~ .:. ,...y ,:ic,, "This is unfortunate, for the board appears to have carefully reviewed thesevidence called by and on behalf of the company. That evidence would seem to indicate that the,employer had taken all the requisite steps to comply with the provisions of the collective agreement in determining which of the competitors should fill the vacant position. ~However, in light of the restrictions that the board placed upon its decision, one cannot be certain that the board'determined as it must, whether the employercomplied with the provisions of the collective agreement." What the Court must have meant becomes clear upon reading the ahalysis of Professor S. Schiff in the case of Re Scarborough and C.U.P.E. Local 545 (1977) L.A.C. (2d) ~210 at.214: "We grant that several passages in the Courts reasons approving the board's statement,of the issue appear to argue against our reading. But, in setting out the issue~.,that way in the award, the board was referring to the issue for the employer's - not ,the board's - initial determination: see 11 L.A.C. (2d) at p-292. Only later in the award did the board discuss the, different question of the scope of arbitral review: see 11 L.A.C.,(Zd) at ~, pp.295-6. As we~read what~ the Court said about.the-~ '.. board's statement, the comments can only be made~~ '~ consistent with the burden-of the Court's reasons if we assume that the Court understood'~it in the 'i.:= way the board had intended;{ The contrary assumption,---: that the Court meant its approval to define the issue I~ before the board, would render the arbitrator's~ determination of the merits identical with determination of the. question the Court emphasized as basic, whether the employer had honoured:thedemandsof a particular seniority promotion clause. But, since the Cour,t has directed arbitrators to consider the factors of honesty, comoleteness and reason in determining the basic question, that identity is not possible. And,.apart from the illogic resulting from the contrary assumption, a fair if far from inevitable reading of the precise language. the court used ,,supports our. conclusion." The first reference made by,Professor Schiff (at/p.292 of the ALP Award) is as follows: . 1 ‘. ’ The appropriate provision of the part-time collective agreement is art. 9.04, which reads: “When additional full-t&employees are re- quired the Company will give preference to pti-time employees on the basis of seniority, skill and qualificatidns for, the job concerned and availability for work.” In terms of seniority the gnevor’s senior- ity date is April 6, 1967; while that of Miss Holloway is October 16, 1971. Therefore, on the basis of the criterion of seniority, the grie vor would be entitled to succeed. However, it is apparent from art 9.94 that seniority is merely one of three criteria and is not en- titled to be given paramount consideration over the other two. Thus ’ the issue in the case reduces to one of comparing the respective “skill and qualifications” of Mrs. Dawson and Miss Holloway for the : particular job in question. The second reference of Profess;? Schiff ~(at pp.295-6 of the A&P Award) ‘is as follcr!s; : - It 1s now well established that a board of arbitration ought not to interfere with management’s decision so long as management has acted honestly and reasonably; That principle does not, in our view, depend on the inclusion in the collective agreement of special lan- guage to the effect that the employer has “exclusive” discretion to decide or that a vacancy is to be filled “in the judgment of manage- ment”. The rationale for the principle is set out clearly in Re Cana- dim Industries Ltd. and United Mine Workers. Local 13091 (1948). 1 L.A.C. 234 (Roach) [at p. 2371: In this and every like case n-here there is mom for hanest differenee of opir- ion. ifit appears - as here admitted to be 1 fact - that the employer has acted honestly; we do not feel that B Board of Arbitrators would be just&d in inter- ~, ,. &sing, by reversing the employer’s decision. for the z-ea~ln that ta do 60 would _ .. result imm&agement by ubitratxxs rather than management by the empbya 7 :,. ‘;: .’ . acting reasonably. could have reached the decision such a .is herr cbL lenged by the Union;~no Board Of Arbitrators should inte&re. ; Or take 1.. : ;. simpler illustrstion: take the cUe of a merehanl or a farmer or my empbiu.~ ..~, :’ opersting on a relsannbly small scale. He h&let us say, six emplqvees, ou of I whom occupies o position superior Lo the anthem - somewhat in the nature of 1 foreman. The employer emrusts duties to that foreman to make decisions. ib eluding the hiring of employees, allocating them 19 different larks, Vusting to’ the &ill and ahitity of that foreman. If the foreman should prom+e owof the ether five employees, what would the merchant or farmer or other employee think if the-decision of the foreman. which was made honestly and not cap& ciously or as 1 result of bins oi bad faith or unjust discrimination. was subject to revie\v by scene outside agency which had ne knowledge of the nature afthe tark .,. to which thP promoted employee was to be assigned? Tbe business of that mer- rhmt. fPrnwr or other employer would. in those circumstances. in the finzl wL ysis be operated in that respect neither by the employer or his foreman. hut by arbitrators. We cpn undersland that III employee ever whom seme other employee has been chosen may feel disappointed. but if the decision otthe emplo?erhas been honestly made. we do not think that the disappointment of the employee or MY- one representing him, should lead him to the point xhere he would be tempted to usurp from his employer the function and authority vested in him alone. and put it in the hands of swne third party. The~reasoning of Mr. Justice Roach applies with equal weight to the :~,._:, right of management to make~the more fundamental determination: .. of the specific qualifications required for a particular job vacancy, and the cases have so held: see most recently: Re Rep&b Alumi- ,,um Co: Canada Ltd. and Ini’l Molders and Allied Workers Union, Local 48 (1974). 5 L.A.C. .(Zd) 251 (Schifn (at p. %4-g): . 6.. < ; ( In the ordinal cxcrcise of management funrtianr cmpb!wx may dctermim in the fin1 inrune what spcifx gullideations M necr~ for a pankular job and what i-&t& weight should be given to each of the chosen qurlificntions. After the employer h=‘made the determination. arbitn.tnra should honour tk managerial decisions except in one or both of two cb~umstances Fit, the em :+ ’ pbycr in bad faith maniptited the purported job qualitications in order to sub ‘.~ vert the just clrimr of cmpbyeea for job advam-ement under the tenm ofthc co!- lective agreement. Set RI Unilcd Brmq Workrt, Lam/ 173. and Carfing Bred Zdd; WJ63). 19 L.A.C. 110 0ristic); Re T&i& Wo*m tinion ami L&y Gdl Todi Ltd. (BtiS), 20 L.A.C. 3sZ (Christie); R@ Cowdiam Trail- . . ~uobf&Lid.ondU~.W.,Loml99i~1973~,2L.A.C.f2d~13~Bm\n~.~. whether or not the empbycr had acted in good faith, the chosen qulikations tar no reasonable rekion to the u~ark to be done. See Re UAW.. Load 707. and Fmd Motor Co. o/Canada L&(1970). 21 L.A.C. 61. (u’utherill); RI Oil, Ckmical d Atomic H’o~m. Lad 9.11. and Polywwr Corp. Lid. (192). 24 L.A.C. 277 VShe~f. -A” Much the same type of comment was made by'Mr. O'Shea in the C.B.C. case at p.41: ( : It is conceivable (if not likely) that the hoard of arbitration in the A & P case might have upheld the company's decision even if it had asked itself the right question, that is, "did the employer comply with the provisions of the collective agreement?'.' Professor Schiff concluded (at p.214),that the A&P case required'that the arbitrator test more than the honesty displayed. .by...~e;employer-.$n the ca,rrying out of the process and the reasonable: (1:: . "Faced with the griever's charge that them employer violated the promotion/seniority clause in the particular collective agreement, ~"- the arbitrator must determine whether~that charge is proved. In doing this the arbitrator must, test what the employer has done for honesty completeness and reason. But he must not, as the Court held the board in A&P had done, avoid the specific determinationbytopping as soon as the subsidary tests had been applied. To paraphrase the Courts injunction in a well-,worn phrase, the arbitrator must not miss .the forest for the trees.~~ In the end he is bound to determine a grievance solely upon his decision as stated in.the award that the employer did or did not violate the~particular agreement's terms.” As.1 understand Professor Schiff, when he refers.to the subsidary tests,,these are "honesty . . . and reason' and ,the principal test is one of completeness. - 13 - .-. i It is significant that the Court in the A6P case - Cat 334).stated: If the wlection and placemmt of aplogoa in mm-e responsible positionr i t.3 be solely r'mxmgcment iunctfon, then it is not difficult for the parties to a collective agrtc ment to set forth the understandink Whether mnnagunent is to be tmfcttved in NC& a decision, or. whetha DO prokw tion tin be made with-xi the consent md lgrcemcnt ‘of the union, are matten that cm form part of the collective agreunmt. ‘However where, 1s her% the collectk agreement states: then it is open to a member of the uniw to take grievance proceedings if he or she is of the opinion that the compx~y has not complied with the requircemnts of the colIectivc agreement e . ‘.,I "The board was of the ooinion that the principle upon'w+ch it-relied did not depend on the inclusion in the. collective agreementof any speciallanguage ~.to the', _~. effect that the,employer had exclusive discretion to decide that the vacancy 'T.' was to be filled in the judgment of management... Reference .was~:made.-.to the i-:.~:, decision of Mr.-.Justice Roach actins..as -' ~~. an arbitrator in Re Canadian Industries Limited, 1 L.A.C. 234." In making.this statement, the Court indicated that where management had the exclusive discretion to decide how the vacancy was to be filled,;the position of Mr. Justice Roach would be applicable. ~. As long as the actions of management (good faith; '. ~~ reasonableness of decision) are relevant considerations for the board, all cases will have certain common elements, whichever. philosophy is followed by a board of arbitration.~. The,board will ,' have to review all of the evidence of the respective attributes of the competing employees as they relate to the qualities designated in the collective agreement e.g. skill and ability. If the board ,~:., I ,:;.: i,:;, - 14 - concludes that management has, in arriving at its decision, relied on all evidence which is relevant to conducting such an assessment and has not been influenced by irrelevant considerations, that will not end the matter. This is because the unreasonableness of the decision can cast' light on whether management was conducting its assessment bona fides..Where the decision is, in the opinion ,- of the board, not one that an arbitrator could reasonably have arrived at on an assessment of the evidence, it would'be necessary for the board to conclude that the decision of management was not arrived at bona fide and on a complete consideration of all of the -- relevant evidence. The-board, on hearing all of the evidence, could not -. avoid arriving at certain tentative conclusions as- to what the * correct decision ought.to be.~ The: inevitable retidence of arbitrators,.'referred to by Professor Christie in Lady Galt Towels. (at p.384);will ordinarily serve as a brake againstithe~arbitrator substituting "his own judgment for that of the company" whatever. philosophy governs the approach.of the board. The following is a comparison between cases decided under the view I have of 'A&P and those which callfor a fresh review of the employer's decision: l(a) In cases where, arbitrators-have claimed 'jurisdiction to review an employer's decision on the‘ merits, th'ere will be a comparison of the attributes established in the collective agreement. (b) In cases where the bona fide-s, reasonableness and completeness' testis followed, .there will be an identical comparison as : -- part of the completeness test: Did thecompany consider all relevant evidence and avoid the influence of irrelevant factors? r- t 2(a) In cases where boards have claimed jurisdiction to review an employer's'decisiqn.onthe merits, a concl~usion will be arrived at by the arbitrator as to what he regards as the correct decision. E.g. are the competing employees relatively equal in the respects specified ,in the agreement. The board will also, in the process, be pressed with arguments as to the correctness of the decision made by the employer. Affected, as I believe they usually will be, by the admon- ' itions of Professor Christie, in the Lady Gait case, they usually cannot fail to- address the reasonableness of the employer's decisions. Although they can ignore the reasonable- ness of-the decision, there will be some reticence in doing so,~ particularly where the evidence addressed by management was that which the arbitrator considered complete. Similarly, the~,good~.faith of management will be a factor in determining whether Professor~Christie's.presumption that management% "supervisors are in .the best.position.to judge '>.. qualific-.:~.- ations ...II will be a factor in the board's decision. (b) In cases where the & fides, reasonableness and completeness test is followed, an arbitrator will also be hard pressed ~- (- ‘. c- not to arrive at a conclusion a~% to what the correct dkcision should be, on comparing the qualities provided for in the agreement e.g. skill and ability. Being required to, he will, as would the arbitrator adhering 'to the first test, although not required-to do So in the same way,' consider::.~ bona fides and compl,eteness. ‘ Whether the test applied is couched in terms of correctness or.completeness, as long as then bona ~fides of manage- ment is a factor for consideration by the arbitrator, along with the reasonableness of the decision, the conclusions of arbitration will be influenced by similar considerations. Under the first test, the decision of management will,. in theory, be correct where it accords with that of the arbitrator. In practice, as Professor Christie observed in Lady Gait, what is deemed correct will be influenced by the fact that management is usually inherently better qualified than the arbitrator to make the assessment. It is implicit in his statement that such inherent advantage will be overcome should it be corrupted by evidence of bad faith in carrying out the process and/or an unreasonable decision. In cases governed by the second,test, ~although the:: correctnessof the decision is not a factor, the fact.~that~.an arbitrator, in comparing,the relative skill~,and~rabilityc- or other specified factors of the competitors for the job, will also have to consider the reasonableness of the decision, will result in his considering other alternatives, perhaps one that he considers to be~the correct one. Instead of analyzing what an arbitratormust do in satisfying either test, there has been a tendency to state the nature. of the test which is thought to be the right one, and hence the one to be followed.. This‘ignoresthe ,essentially common features of what must take place in a practical setting in favour of more abstract, and theoretical, representations Of each test, and tends to obscure the reality of the process. I therefore conclude that the intermediate position identified by.Professor Weiler in'the B.C. Housing case is identical to what was mandated by the Divisional Court in the A&P case. However, I ~find,for the reasons stated above, that - the two tests will be, in practice, remarkably the same. I have perhaps taken too long to arrive at a conclusion, which Professor Christie so succinctly stated in the Lady Gaft case. The Evidence Re: Messrs. Caston and Brophy I have no hesitation in finding that the evidence as to the-way, in which the representatives of the Employer carried out their responsibilities disclosed no indication that they did so in bad faith..' Mr.~ John Saj:an;-,the Chief Attendant.of, the Oakridge facility,,was.the principal witness.on behalf-of the:.Employer .and .he.-chaired,~the committee:establishedz:.in1979:.~ ~! to fill the vacant Attendant 3 positions. Having observed,him give evidence over an extended period of time;,1 found him to be a credible witness and am satisfied that all of his actions were genuine and that he was not motivated by any improper purpose-in carrying out his duties on behalf of the Employer. Although Mr. Sajan had some difficulty in reconstructing events occurring at-the time of the competition, I concluded that these difficulties in no way reflected upon his honesty but reprqsented' a natural tendency affecting most people to experience difficulty in recollecting events occu~rring some considerable time ago. : i The Union raised a number of objections as to the steps taken by the Employer to comply with the provisions of the Collective Agreement in determiniqg which of the two applicants should be appointed to the vacant'position. This I regard as the Union's objection to the completeness of management in carrying out its obligations pursuant to the.provisions of Article 4.3. In referring to the selection process used in the competition, . the Union stated: "Mr. John Sajan, the Chief Attendant of the Oakridge facility testified that he chaired the committee established in December 1979 to fill the ten vacant Attendant 3 positions. "He testified that the committee develop selection criteria and interview questions, tended in Exhibits 3 of the hearing on November 24, 1982, and a scoring. system described in Exhibit 6 and 7 tended at the same hearing. "During.his evidence Mr.:Sajan emphasized that the scores listed:.on Exhibit~.'l represented~only~one part. of the~competition,?process.:.::!During cross-examination Mr. -Sajan~expandedon the.meaning.of'this:statement.--. He explained that~:work.performance was.considered eat '.~ .two stages in the selection, process: First, when the ‘+. committee scored each candidate after hearing about his record from the file 'and the reports of the super- visors, and second, during a general discussion after the scoring process~ procedure had been completed." "Mr. Sajan explained that during the second round of the discussion, the committee developed grave reservations about the emotional suitability of Mr. Caston for the position of Attendant 3. On the other hand, nothing damaging came up during the second round of the discussion of the qualifications and,,ability of Mr. Brophy. Consequently, the committee selected Mr. Brophy over Mr. Caston for one of the vacant positions, notwithstanding Mr. Caston's greater seniority. "In coming to its final decision, Mr. Sajan testified that the committee gave a weight of approximately 25% with written scores of ~Messrs. Caston and Brophy, which were 92 and 111.5 respectively and a.weight of 15% to the verbal .I - 19 - discussion which constituted the second part of the selection process. In contrast, it is interesting to note that different treatment was given to Messrs. Therrien and Pilon in the.same competition. The committee scored: "Mr. Therrien 111.5 and Mr. .Pilon 108. In cross- examination, Mr. Sajan admitted that the committee gave approximately equal weight to the recorded scores and the verbal discussions that followed.~" Although I doubt that th,e committee intended to treat the candidates differently, as a result of Mr. Sajan's uncertainty, I am left with the conclusion that he was unsure as to the weight i-. which was given to the respective portions.of the evaluation process. From Mr. Sajan's answers anddemeanour I concluded that he could not remember how the weight was divided between the verbal discussion and the test scores. Nor was I satisfied . that he could recall why a particular question's weighting was considered.significant. In the:circumstances;the-:candidates.having been.:employed;. for some time at the Oakridge facility .in the ~Attendant Z.classif-~ ication,, and having also spent some ~time in the position of Acting 1~ \.. Attendant 3, there being a significant overlap between the responsibilities in the Attendant, 2 and Attendant 3 position, there was a reasonable and objective basis for assessing the suitability of the candidates on the basis of job performance. Although an Acting Attendant 3 and a PermanentAttendant 3 are not identical positions', in terms of work responsibilities, they are very close in this regard. There might be occasions where it is necessary to place greater reliance on the creation of a test which artifically examines the various criteria which would be important in the performance of the job under review, however, in a case such as this,.much more significance ought to be given-to evidence of work performance on the job,where such evidence is of the greatest relevance. An artificial test, intended,to examine the various.'attributes necessary for satisfactory performance on the job cannot seriously affect visible, tangible manifestations of the characteristics sought to be tested. This is especially so where the test is created by amateurs and is unvalidated. This is not to say that persons familiar with the job, and with the character- istics which are reguired in 'orderto carry out'the job, cannot prepare 'a test based on their practical experience. It does mean, however, .that the use of such.tests must be closely scrutinized and their resultsought not to prevail where actual events ,discIose--~~ that~an applicant~has functioned well in an area where-the test indicates~ that.he is not likely to do so. Here, there.was evidence to demonstrate that both applicants had functioned well as Attendant 2's and that they had performed satisfactorily as Acting Attendant 3's. 'On the evidence, I am satisfied that there was no, indication that Mr. Caston's work was other than satisfactory in either of those positions,nor was there evidence to disclose a significant difference in performance between the two applicants. The.-union also raised a number of criticisms with respect to the selection process. "i . The inclusions of general impressions within the selection criteria was unwise because of the highly suggestive nature of the factors considered under this heading." General impressions, as long as they do not dominate the process,are unobjectionable. Accordingly, I cannot give much weight to this objection. n(ii). The questions posed by the committee to each applicant were not entirely adequate to really test the' qualifications of the applicants. For example there was no question to test their _,___ ability to counse~l patients,. even though~the position specifications indicated that this is a characteristic feature oft the Attendant 3. Also question 9, for example, was too vague and opened-ended to make an assessment of security awareness or nursing knowledge." The questions, although the product of amateur preparation 'and although not validated, can be seen to test qualities relevant to the job. One cannot expect an exercise of perfection in these matters. Nevertheless, my concerns, as expressed-above, remain. There.appears:to have ~beena realpos~sibility that the~reality of job.performance was overlooked by the committee because of impressions they received from the test. I am also uncertain, because of Mr. Sajan's inability to satisfy me on the matter; how much weight was given to the test and how much to the assessm&t of actual work performance, or the extent to which the perceptions of the committee were distorted by reliance on the test to an inappropriate degree. "(iii). The scoring system used in .this case left some unanswered questions:, Then sheet prepared .~=.~ by Mr. Elrick [one of the members of the,Selection,,Coinmitteel (Exhibit 7-4) shows alterations to the scores of .Mr . Caston from~ a total of 25 to 17, while the score of his rival, Mr. Brophy, is listed as 24. Mr. Elrick did not give ~evidence about this alteration, ‘; .” i’ .+ / .: i . . . . . :,., .:; : : .,. /. i ‘\. ,,’ \.: and Mr. Sa,jan, who introduced the score sheets, was unable to explain the change. The propriety of such a change~when unaccompanied by an adequate explanation is a matter of serious concern to the Union." While.1 do not regard the change in Mr. Elrick's evaluation as evidence of bad faith, the absence of evidence as to the basis for the alteration leaves a serious doubt in my mind as to the completeness of,the~process. .- The Union 'also raised the following further ~objections: "While the foregoing criticisms are important, they pale in comparison to our concern over the informal discussions which constituted the second part of the selection process." I can see nothing wrong in what the committee attempted to do. There was the test portion of the process and there was the discussion of the work history of the applicanbby the committee, most oft whose members had personal knowledge of the work history and~quality ~of.work performance of then applicants. It was quite proper~.for them;to'exchange~ informationas to their own personal knowledge~.relatinp.to these~attributes~.:~Nevertheless,I was concerned with the-fact that certain criticisms. arose.relating to Mr. Caston~whidh he was never made aware of or given an opportunity to respond to. These matters were not recorded in his personnel file. The union contended that it was unacceptable for the employer to act on serious criticisms where the employer did not see fit to make those criticisms the subject of some disciplinary action or performance appraisal. After having heard all of the evidence, I was left with the distinct impression that the matter which was of most concern to Mr. Sajan~ (and to the rest of the Committee) related to the emotional stability of Mr. Caston. I ‘am satisfied that emotional stability in an Attendant 3 is a matter of fundamental importance. It is, of course, not enough for Mr. Sajan to have an honest belief that Mr. Caston was less emotionally stable than Mr. Brophy. It is important to evaluate the evidence upon which he relied. The significant matters which he appears to have relied upon were: 1. An incident which occurred in the Airing Court,some three years before the competition. Mr. Caston had no recollection of the incident and from Mr. Sajan's perspective it was of such .little moment that no discipline was imposed nor was any reference produced that any written record of the incident was preserved. I would conclude that if the incident occurred it was trivial, and, on the evidence, represented a singular and isolated incident - one which hardly warranted the importance given tom it, in retro- spect, by Mr. Sajan. Occurring, as it did, so long ago, it repre- _ sented an unreliable indicator of Mr. Caston's qualifications for the ~job; where~his .emotional stability was fin -question.~~ In the circumstances,it represented evidence:.which.was.,~largely ~irrelevant to the' issue~.for decision and the weight apparently given to it affected my view of the employer having satisfied the requirement of completeness. 2. An incident concerning a temporary loss of vision by Mr. Caston, _' in 1974 (according to Mr. Caston), or in 1977 (according to Mr. Sajan). Again, there was insufficient evidence to demonstrate that this was other than a single event and the evidence of Mr. Caston satisfied~me that the incident resulted. from an eye condition, from which~.he then suffered, which condition was successfully treated through the use of medication. . Mr. Sajan, without further evidence, interpreted the actions of Mr. Caston, at the time, as consistant with a finding of emotional instability. This conclusion appears to have had a considerable impact on him and, when communicated to the Committee, on its evaluation of Mr. Caston. My conclusion is that !.?r. Caston's then reaction was ,understandable, once it was appreciated thathis temporary vision problem had a physical and not a psychosomatic- basis. Mr. Sajan does not recall any mention by,@&. Caston of a physical basis for his reaction. It may be that no proper explanation was furnished by Mr. Caston, however, he does not appear to have been asked forone, the evidence being unclear in this regard. I have no reason to disbelieve Mr. Caston's explanation. While the incident no doubt occurred, its significance was unwittingly misinterpreted by Mr. Sajan and evidently had a dispro- portionate influence on the ultimate decision which resulted in Mr. Brophy being selected~ over Mr. Caston.+Mr. Sajan, being‘the Chairman of the Committee, ~also appeared to have had considerable influence on the process. While I am notcritical of his position within the Committee, it is a significantfact and 'can.explain ~ why.the incidents referred to apparently we~ighed so' heavily upon the minds of the Committee in arriving at their decision. As noted above, the evidence as to the actual work performance of Mr. Caston and Mri Brophy was such as to make it very difficult to distinguish between them.: Perhaps Mr. Brophy, ._. was.a better-Attendant 2. The evidence, unless the scores of the impugned tests are considered as having much weight, does not disclose a significant ~difference between them which demonstrates other than relative equality in the areas of qualifications and I ability. - &3 - . I would refer, once again, to the concern I have over Mr. Elrick's scoring which causes me'to doubt the usefulness of the test used in this case as a measuring device. My reading of the brief written appraisal of Mr. Elrick eon each of the contestants, on December 29, 1979, (Exhibit 2-4 for Mr. Caston and Exhibit 5-3 fqr Mr. Brophy), .is.consistent with Mr. Caston being considered as superior to Mr. Brophy. There.is one further matter that should be referred to. That is Mr. Sajan's testimony that he had called meetings with Mr. Caston to discuss the latter's work performance. Mr. Sajan could recall no details of the meetings and I am not persuaded that such residual memories should be permitted.to be relied on in assessing the suitability of candidates. Lacking certain specific observations of a relevant kind, the meetings could be of little assistance in assessing the respective qualifications of the:candidates. Upon reviewing all'of the evidence I must conclude that the Employer, although it behaved honestly, failed'to demonstrate that it had performed its responsibilities as'required under the provisions of Article 4.3 of the Collective Agreement. That is, it failed to establish that it had done so in a complete fashion. In the light of all of the evidence and treating the reliance on the test as representing a distorting factor in the , evaluation process, and,in recognition of the considerable reliance by the Committee on the two incidents above referred to;the decision of manageme~nt cannot be viewed as being a reasonable one. - ,. .I : i, ..::., i., .\ Having compared the respective skills and qualifications of the applicants Caston and Brophy in the manner above set forth, I would normally conclude that the matter should be remitted back t0 the Employer in order that it might comply with Article 4.03. However, both parties commented upon the difficulties that would be created in doing so after so great a lapse of time. On the facts, I would find it unlikely.that the matters presented to this Board would be affected bythe 'creation of a new test,when faced with the reality of the work performance of the applicants. In addition, the difficulty of carrying out a test after the considerable lapse of time has already been adverted to. In the circumstances, this would appear to be a case where, in allowing the grievance,we should award that the position of Attendant 3 be given to Mr. Caston. From the comments of its spokesman, I take it that this result was also preferred by the Employer, should the grievance succeed. ~ ~ It was agreed between the parties that we should retain jurisdiction to.deal-.with any difficulties experienced by them in arriving at the amount of compensation payable to Mr. Caston as a result of this Award. . _ Messrs. Pilon and Therrien . In the case of the competition between Messrs. Pilon and Therrien, I would merely repeat my misgivings relating to the completeness of the carrying out,of the Employer's obligations under the Collective Agreement.. Furthermore, I am not satisfied that the test-scores demonstrated a substantial superiority on the part of Mr. Pilon, there being an almost equal division on the part of the committee, two ~of~the five finding Mr. Pilon better than Mr. Therrien, one finding Mr. Therrien better than Mr. Pilon and two finding the two relatively equal. We also had the record of the performance appraisals of the contestants (Exhibit 1 and 2 submitted during the hearing on April 21, 1983). Mr. Therrien received appraisals in 1975 from Mr. Quesnell, suggesting a very high level of performance, and ins 1976 from Mr. Tugwell, showing above average performance but not on the level, of Mr. Quesnell's rating. In 1975,an apprarsal was obtained from Mr. Vaillancourt, which was substantially different in form from the others,making comparisons somewhat difficult. Although the tone established by the appraisal is modest and restrained in its employment of praise, I would not find that this implied a deterioration in the performance of Mr. Therrien. Mr. Pilon received two good appraisals from Mr. Herring;in 1974, and another undatediand a very .good appraisal in November ~1978 from~Mr. -Morrow. I have difficulty, in reviewing the appraisals, fin finding any clear and consistent-difference in the contestants'level of performance. .In the result,1 would have difficulty in finding them other than relatively equal in termsof ability and qualifications. There was-another piece of evidence which we considered. The selection committee had the benefit of the brief reports prepared for the occasion by the ward supervisors, Mr. L. A. Chapelle for Mr. Pilon (Exhibit 5) and Mr. Vaillancourt for Mr .Therrien (Exhibit 4). .~ If these reports were used,.without any further consideration, the Union acknowledged that "one would have no hesi-tation in preferring Mr. Pilon to Mr. Therrien." It : - 28 - is always possible that Mr. Therrien had the misfortune to be reporting, as the Union suggested, "to a supervisor who is determined to damn him with faint praise." The Union 'lsugqested that he'judged his.staff by a harsher standard than other supervisors [as] may be seen by his equally harsh assessment of,Mr. Xing (Exhibit 61, another successful candidate in this competition who received the identical score of 108 awarded by the selection committee to Mr. Pilon." While Mr. Vaillancourt's assessment must be given some weight, it must also be affected by his appraisal of Mr. King and its impact is, to that extent, somewhat reduced. 1, am satisfied that Mr. Sajan, as he testified in cross- examination, had concluded, along with the Committee, that Mr. Pilon was doing a superior job to Mr. ~'Therrien. This conclusion arose during the informal discussions following the scoring process. Nevertheless, he was unable to elaborate on his reasons or give the.Board any idea as to whether the degree of superiority.noted in these discussions would be greater.or less than-that.indicated by the recorded scores of 108 and 101. I would not, as the union suggested I do, ignore the informal discussions and I 'regard such discussions as a proper and positive way of comparing the ,candidates, based on the first handexperience of the persons involved. In this case, the conclusion that Mr. Pilonwas more satisfactory. does not persuade me that the degree of superiority was so significant as to cause me to. conclude that the candidates were other than relatively equal in qualifi- cations and ability. On the evidence which the Employer could :, consider, its decision was unreasonable. In addition, its'use of the test resulted in its being influenced by the incompleteness c - 29 - of the manner in which .it carried out its responsibility under 4.2 of the Collective Agreement. In the result, I find that there was relative equality on the factors of qualifications and ability and the Employer ought tohavethen considered seniority. As in the case of Messrs. Caston and Brophy, this, is a case which would best be resolved, in allowing the grievance, by awarding the . ..'i. : posted position.to Mr. Therrien. In addition, as agreed by the ~parties, we will retain jurisdiction to deal~with any differences which may arise between the parties as we did in the case involving Messrs. Caston and Brophy. DATED AT London, Ontario this 6th day of February, 1984. M.R. Gorsky Vice Chairman M. Perrin Member A.G. Stapleton Member