Loading...
HomeMy WebLinkAbout1980-0506.Dyer.83-03-08! 506/80 I IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: OLBEU (H. J. Dyer) Before: Before THE GRIEVANCE SETTLEMENT BOARD Griever - and - The.Crown in Right of Ontario (Liquor Control Board of Ontario) Employer ~For the Griever: FOT the Employer: Hearings: M. K. Saltman M. Perrin E. R. O'Kelly Vice Chairman Member Member M. LevinSOn Counsel G. Surdykowski Counsel Golden, Levinson Barristers & SOliCitOrS J. Baker Counsel Hicks, Morley, Hamilton,' Stewart & Storie Barristers & Solicitors July 22, 1982 July 30, 1982 (Written submissions in this matter were completed on September 10, 1982). - 2 - The Grievor in this case, H.J. ("Jim") Dyer, claims that he was improperly denied a promotion to the job of Warehouse Foreman 2 in the Private Stock and Rare Wines Department of the Toronto Warehouse. The job was awarded to another member of the bargaining unit, Bill McGrath, who was given notice and participated in the hearing. The facts in this matter are as follows. The Grievor was hired by, the L.C.B.O. on July 29, 1974. From that time until the date of the grievance, he has been employed as a Warehouseman in the Kipling Warehouse. nes he On August 14, 1980, the Employer posted~ notice of a vacancy in the job of Warehouse Foreman 2 in the Private Stock and Rare W i Department of the Toronto Warehouse. The job became vacant when t previous incumbe~nt, Gordon Wiggins, retired. The Warehouse Foreman is responsible for receiving purchase orders for private stock (.i.e. those brands which are ordered by private customers through a wi‘ne agent and are not part of the regular stock of the L.C.B.O.) and for acceptfng delivery of private stock. With th'e assistance of three Warehousemen under his supervisfon, the Foreman examines each delivery of private stock for breakage. The Foreman then records the quantity of the delivery and the amount of. breakage on forms which are sent on to the Stock Purchasing and Cost Accounting Departments. Having completed these forms, the.Foreman sorts out the delivery according to brand name (as opposed to ,according to number ) and assembles regular stock which is sorted the order which is then distr ibuted to each agent or licensee. The Warehouse Foreman performs a similar function with respect to rare wines (which, as the name suggests, are very scarce and very costly). Unlike private stock, rare wines form part of the regular stock of the L.C.B.O. As part of the regul ar stock, they are ident~ified according to number. The Foreman i 5 respon- sible for sorting the shipment of rare wines, checking for breakage and recording the relevant information (i.e. quantity of the shin- ment and amount of breakage) in the L.C.B.O. records. When the record is completed, the Foreman transfers the rare wine shipment -to the Cold Storage Room located within the Warehouse and, if a shipment consists of five cases or more of the same brand, he sends one bottle to the laboratory for testing. The Foreman is also responsible for distribution of wines to wine clubs and societies. In 1980, there were three such wine clubs served by the Toronto Warehouse.~ Wine clubs act as importers of wine for their membership ,,which consists of private citizens. When the wine shipment is received, the Warehouse Foreman checks for breakage and then assembles the order for each individual member acrossOntario according to a computerized order form which is supplied by the wine club. Once the orders are assembled, they are dispatched [under the supervision of the Foreman) to various L.C.B.O. outlets throughout Ontario to be picked up by individual members and the wine club is notified by the Foreman that the order is ready,. Orders destined for members in'the Toronto area are nicked up at the Toronto Warehouse. The Warehouse Foreman is also responsible' for resolving pro61ems with respect to wine club orders at any location in Ontario, The Warehouse Foreman also is - 4 - responsible for double-checking embassy orders and agents' trade sample brands (which are not for public sale) which are assembled elsewhere but sent to the Toronto Warehouse for delivery. The incumbent, Mr. McGrath, h%s worked as a Warehouseman in the Toronto Warehouse since his appointment to'the L.C.B.O. in April, 1974. Mr. McGrath assisted the Warehouse F0reman:i.n the per- formance of his duties and acted in the job of Warehouse Foreman 2 in the latter's absence. In the course of these acting assignments, Mr. McGrath said that he performed all of the duties of Warehouse Foreman 2. Evidently, Mr. McGrath assumed some of the duties of Warehouse Foreman (e.g. completion of the documentation for the Stock Purchasing and Cost Accounting Departments) even when the Warehouse Foreman was in attendance. In fact, Mr.~ Wi~ggins came to rely on Mr. McGrath in the performance of his duties. In effect,~~' by performing the duties of Warehouse Foreman, Mr. McGrath gained experience in the job which was not available to anyone else. The Grievor has never performed the duties oft Warehouse Foreman. However, he has performed the various functions of Ware- houseman, including (1) the duties of Assembler, i.e. assembling orders from the aisles of stock according to a computerized order '~ form for delivery to other locations; (2) the duties of Forklift Operator, i.e. loading and unloading stock which arrives in the Warehouse on trucks, transferring excess stock to and from the holding area, and replenishing stock in the aisles for'use in assembling orders; and C3r the duties of Checker, i.e. verifying the work of the Assemblers by matc'hing the number on the order sheet with the brand - 5 - numbers of the order assembled, as well as verifying the quantity only of incoming goods. At the time of the posting, the Grievor was doing the job of Checker. In the course of his duties, the Grievor came upon damaged goods or breakage. His only responsibi- lity in this regard was to remove the goods from the order (or the delivery) and send them elsewhere for inspection; he had no responsibility for reporting or recording the damage. In his job of Warehouseman, the Grievor had no contact with wine clubs and little, if any, experience with embassy orders and rare wines. Prior to the posting, the Grievor relieved in the job of Foremanin various Outside Storage locations, which are facilities used to store excess wine and liquor imported by the L.C.B.O. As Acting Foreman, the Grievor received notification of shipments from Europe and was responsible for making arrangements with.a.- trucking company for delivery of the shipment to the Outside Storage facility. Once the shipment was received, the-Grievor checked the' condition and quantity of the shipment; He reported breakage on a breakage report form and verified the quantity of the goods received [including damaged goods) which was recorded on a "receiving and examination report" form. Other documentation which the Grie~v-0.r.~ dealt with in Outside Storage included bills of lading, documents for transmitting samples to the laboratory for testing, and order forms for the shipment of goods to other L.C.B.O. locations. The Grievor had no real experience with rare wines in Outside Storage; in particular, he had no responsibility for verifying either the quantity or quality of the rare wine shipment. The Grievor relieved in the job of Foreman in Outside Storag'e six times - 6 - from 1977 to 1980 for a total 'of more than 10,months. During these relief assignments, the Grievor had'no supervisory responsi- bilities and could not give instructions to other Warehouse employees. The Grievor was interviewed for the job of Warehouse Foreman 2 in the Private Stock and Rare Wines Department by Mr. Dewsbury, Superintendent of the Toronto Warehouse. During the interview which the job was discussed, the Grievor was advised that the other applicants would "back off" (presumably, withdraw their applications) if Mr. McGrath was awarded the job. The Grievor not asked about his qualifications in the course of the interv 1 a~jthough Mr. Dewsbury conduc'ted, the interview with the Grievor file in front of him. The Union claimed that the Grievor ought to have been in was ew, S awarded the job of Warehouse Foreman 2 in the Private Stock and Rare Wines Department of the Toronto Warehouse sinc'e he was the most senior qualified ~applicant. The, Employer, on the other hand, sub- mitted that the Grievor was not qua1 question since he had no prior exper fied to perform the job in ence in the Department: In order to determine this ma t ter, it is necessary to con- sid.er~~Article 16.6Ca) of the collective agreement, which reads as follows: Where employees are being considered for promotion, length of service from appointment date will be the determi- ning factor provided the employee is qualified to perform the job." Article 16.6(a) does not establish a competition between job appli- cants but provides that the job shall be awarded to the senior applicant who is qualified to perform the job. Under this clause, the applicant must be immediately qualified to perform the job since the collective agreement makes no provision for a training period (although the successful applicant is entitled to familiarize himself with the details of the job) (e.g. Re United Automobile Workers, Local 195, and Champion Spark Pluq Co. of Canada Ltd. (1965), 16 L.A.C. 313 (,Reville); Re United Automobile Workers, Local 35, and Canadian Filters Ltd. (1971), 21 L.A.C. 219 (Weatherill); Re St. Catharines General Hospital and Service Employees' Union, Local 204 (1976), 10 L.A.C.(2d)258 (Adams)). Accordingly, it is necessary to de t time of the posting, the Griever was qua1 i ermine whether, at the fied to perform the job offs Warehouse Foreman in the Private Stock and Rare Wines Department of the Toronto Warehous~e: It is not sufficient under this collective agreement for the Board to determine whether or not the Employer acted reasoi~ably and in good faith in making its selection on the job posting. This collectl‘ve agreement requires the Board to deter- mine the merits of the Griever's claim. This conclusion is based on the decision of the Ontario Divisional Court in Re Great Atlantic & Pacific Co. b;f Canada Ltd. and Canadian Food & Allied Workers, Local 175 (1976), 13 L.A.C.(2d)211n, 7.6 C.L.L.C. para. 14,076, p. 332, which requires a board of arbitration to'determine whether the employer correctly applied the terms of the collective agreement. In this case, this means t~hat the Boa.rd must determine whether.the Grievor was qualified to do the job tn question. The jmployer claimed that the Grievor was not .qualified to perform the job since he did not have previous experience within - 8 - the Department. There are, of course, cases in which previous experience in the job (or department) in question has been held to be a proper requirement on a job posting (e.g. Re Ottawa General Hospital and Ontario Nurses' Association (1982), 2 L.A.C.(3d)l (P.C. Picher); Re Elisabeth Bruy‘ere Health Centre and Ontario Nurses' -Association (1983), 6 L.A.C.(3d)119 (Saltman); Re Boychuk and Appeal Board Established by the Public Service Commission et al.. (1982), 135 D.L.R.( Employer cl it was not 3d)j85 (Fed. Ct. of Appeal)). However, in this case, the aimed due to the complexity of the job in question that possible to be qualified in the job without~prior experience in the Department. This may be so in the particular case; however, the Board is reluctant to find that prior experience in the Department is a mandatory qualification for the job for two reasons. .Firstly, it would' appear that the qualification of prior experience in the job could be satisfied by only one person, the incumbent. (Indeed, it was intimated by the Employer--that the Griever withdraw his,a-pplication in favou,r of the incumbent. Nevertheless, this evidence is note sufficient to conclude that the Employer manipulated the qualificatSons i,n order to defeat the seniority rights of employees under the collective agreement.) Secondly, although the Employer clatmed that prior experience in the Department was a minimum qualification for the job, there was no reference to prior experience +n the job posting. In fact, the job posting does not s'pecffy any qualifications for the job.* Therefore, it is not ._. * There may be circumstances in which anempl,oyer can god beyond the qualifications listed in a job posting in assessing an employee's application for promotion (e.g. Re Ottawa General Hospital and Ontario Nurses' Association, supra; Re Elisabeth Bruyere Health Centre and Ontario Nurses' Association, supra). However, this is a matter of degree. Where no qualifications are listed in the job posting, the employee is clearly prejudiced in establishing the employee's qualification for-the job. The degree of prejudice is reduced where only one of several qualifications is omitted. - 9 - possible for an employee to determine the qualifications of the job for which application is made. Clearly, this is improper since, as a matter of procedural fairness,* an employee wishing to challenge the Employer's decision must know the case to be met, i.e. the job qualifications (Re OBLEU (Bob Mepham) and Liquor Control Board of Ontario, G.S.B. File # 570/81, August 12, 1982 (Linden (unreported))). For these reasons, the Board cannot find that prior experience in the Department is a mandato Nevertheless, the Gr that he was qualified to do y requirement for the job in ques evor still has the burden of prov the job of Warehouse Foreman. As ion. ng previously stated, this means that he must show tha.t he was immediately qualified to do the job without any period of training. The collective agreement is very specific in its wording; the applicant must be "qualified" to do the job. It is generally accepted that some form of training or experience is required in ‘.. order to be qualified four a job; the employee must show more than ability or inherent capacity to do the job in question in order to _~ be qualified (e.g. Re United Automobile Workers, Local 199, and Anthes-Imperial Co. Ltd. (1962),.12 L.A.C. 143 (Reville); e Int'l Ass'n of Machinists and Gabriel of Canada Ltd. (19691, 19 L.A.C. 22 (~Christie); Re Great Atlantic and Pacific Company of Canada and Canadian Food 6 Commercial Workers, Loca.1 175 (19761, * The Employer claimed that the Board had no power to inquire into the reasonableness or fairness of'the job qualifications. In view of the Board's disposition of this case, it is neither necessary nor desirable to decide this submission. However, it should be noted that in referrino to "fairness", the Board is dealing only the right to know the case which irness (or reasonableness) of the with procedural fairness, i.e. has to be met and not to the f.a qualifications of the job. i ! . i - 10 - 1 para. 14,076 (Ont. Div. Ct.)). As a practical matter, it may be difficult to qualify in the job without prior experience in the Department. However, if the Grievor can show through prior experience (however acquired) or training that he was qualified for the job, his grievance will succeed. It seems, however, that the Grievor's "other experience" was not sufficient to qualify him for the job in question without some period of training, whic~h the collective agreement does not provide. (~Although the Board is skeptical of the Employer's : , estimate that six to eight months of training is necessary to per- form the job, it seems clear that the Grievor would require more than a~ short familiarization period to become qualified in the job.) Accordingly, although the Grievor had general experience as a Foreman and although the Board is satisfied that he would be capable of.performing the job in question with some amount of training,.the Board finds that he did not have the immediate qualifications for the job of Warehouse Foreman 2 in the loca.tion l'n question and, therefore, that the grievance must be dismissed. : DATED AT TORONTO this 8th day of March, 1983. @-l%vad& M. K. Saltman, Vice Chairman " 6: 2100 6: 2310 "I dissent" (to follow) - M. Perrin. Member