HomeMy WebLinkAbout1980-0522.Robinson.84-03-28522,'80
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES .GRIEVANCE SETTLEMENT BOARD
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Grievor:
For the Employer:
Hearings:
OPSEU (Gordon R. Robinson)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Health1
Employer
M. R.::%%rsky Vice Chairman
R. Russell Member J. H. Morrow Member
G. Richards
Grievance Officer Ontario Public Service Employees Union
M. H. Campbell
Counsel
Legal Branch
Ministry of Health
:
May 26, 1981
June 24, 1981
April 6, 1983
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DECISION
This grievance arises out of a competition for the
position of a Management Services Officer 5 ("M.S.O. 5") held--in
June of 1980, for which the Grievor, Gordon Robinson and the
successful applicant, the Third Party, Norman Karkruff, competed.
Mr. Robinson filed a grievance alleging that the Employer had
violated Article 4.3 of the Collective Agreement, which.is
'as follows:
"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 service shall be a consideration.*
The grievance was heard on May 26, 1981 and on June 24,
1981. A lengthy adjournment occurred,during which time the
parties endeavored,to resolve the dispute. This attempt having
failed, the Board reconvened on April 16;.1983.
It was the pos&ion of the Union that Mr. Robinson.-_--~._-. .._~
was capable of doing the work required at the M.S.O. 5 level and
it submitted:
II . . . that Mr. Robinson has the right to
claim that position on the basis of seniority
because,... his qualifications and ability
are relatively equ& to those of ,the.successful
applicant, Mr. Norman Karkruff." (Union's argument .~ .-
P.1).
A difficulty facing the Board resulted from the
position of both counsel as to the meaning of the direction to
arbitration boards given by the Ontario Divisional Court in
the case of Re Great Atlantic and Pacific CO. of Canada Ltd.
and Canadian Food and Allied Workers Local 175., [I9761 CLLC
para. 14,056. Both counsel took the position that this
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Board was bound by the de'cision in the A&P case. Both counsel -
took that case to impart a standard of correctness which I find
does not accord with my interpretation. As, in my view, a _.
correct interpretation of that case is fundamental to a disposition
of this grievance, I will repeat what I said in the case of
Re Therrien and Caston (NOS. 142-80 and 140-80, respectively),
where I concluded that the A&P case does not impart a standard
of correctness or one of reasonableness, but rather a test
requiring that management has conducted itself in good faith in
administering the clause in question, that its decision was a
reasonable one and that its decision was complete in the sense
that it acted on all of the evidence relevant to the case and
was not affected by irrelevant considerations. In the Therrien
case, it was stated:
"Because. of the position taken by the .Dnion 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 oniy.has the
authority, but also the duty to clos'ely scrutinize
the decision of the selection committee because it
is bound by the decision of the Ontario Divisional
Court in re Great Atlantic and Pacific Company of
Canada Limited and Canadian Food and Allied Workers
Local 175, [76 C.L.L.C. para. 14,056 (Ont.Div.Ct.1.
The interpretation of the A&P case as imparting a
standard of correctness rat= than of reasonableness
in reviewing the employer's decision has been the
practice of this Board in a significant number of
decisions..
.
3
-4-
' 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 Mr. 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 MaGagement
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 Housinp case accurately set out the pre-
A&P philosophies which were found to apply in promotion cases. -
He stated (at p.124):
In the early reported awrds arbitrators took the position that
then proper review of management's initial, judgment of an
employees’ ability should be limited to a subjectice inquiry
whether this assessment wzs made honestly, in good faith and dih not discriminate between employees. (See e.g., RE L’tGfcd ,\fi~c
Workers. Local 13031 ojjd Calmdins IndnstiiPS’ Lid., .Vobel
I?~%~ers (1948),,1-L.A.C. 234 (Roach)). V?3ile this approach climi- ----.'- nated gross abuses of total, management discretion, nevertheless it
did not deal with the situation where management’s discretion
might be bonafide yet vev wrong. There seems to be no pester
rexon to give management tqal freedom to act in good faith ins
the seniorit:\’ field than in the area of discipline where this posture
had been rejected.
It will be noted, infra, that this was the.position taken by the
arbitrator in the A&P case and rejected by the Divisional Court. -
"Later at p.124, Professor Weiler stited in the B.C.
Housing case:
Chafing under this limited review of management’s assessment
of empiovee’s ability, the extreme view from the trade union side urged t&t as usith discipline, arbitrators should have total freedom
to substitute their judgmeni for management’s whenever they dis-
apeed. In other words, rhe arbitration process was lo ofier full ap- nellatc .wview of manaeement’s initial judgmenLJ
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** This is the position that Professor Weiler,at pp.128-g
of the B'.C. case, - concluded was held by the Divisional Court in the
A&P case. Professor Weiler stated: -
In the face of this arbitral opinion, the Ontario Divisional Court in
the A &Pcase hzs ruled that an arbitratir must not limit himself
to an enquiT as to the honesty, absence of 1no16mes and reason-
ableness of management’s dewion. but must compare the respec-
~tive skills and qualifications of applicant for the job in question. In
reaching this conclusion,the Divisional Court noted that if the par- :- _... ties wanted to lirmt full scale review on the n&&of
management’s decision, “then the parties in the collective aF=
ment shouldjnsure that management's right in this reg& is unfettered? . .
n 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 . . .
11 Professor Weiler, at p-125 in the B.?. Housing case .'
sets out another view d&&loped by arbitrators prior to the. : ;'
Re L’,E. IV., L0eo.l 5.u and Cn.iutt Carbide hadu Ud. (196i), 18
L.A.C. 109 (Keiler) 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. Initiallp, the
arbitrator must determine the requirements of the job, and then
against those re+iremenu,a.ssessthe reasonableness standardsor
critiria u&d by the employer. Having made thal determination,
the arbitrator must then examine the manner in which the em.
ployerapplied those standardstothevariousapplicantsforthejob
vacancy. (See generally, Brown and Beatty, G~r~~dio,l La&r
Arbitrafim (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 kuch a -
standard. The second test concerns the reasonableness of the
decision. AS Will alSO be seen from an examination of the A&P -
Casey, 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 ‘r.
have been averted to, and that all irrelevant facts have been
excluded from thp process of decision," (See B.C. Housing_ case at
_ _.,. ~~_... p.125) representsa third=factor in the review - one that I view
as also being part of the approach mandated by the Divisional
Court, in.the A&P case. -
"It is my conclusion that the Divisional Court, in the
A&P case, - adopted the standard,of review ads s,et out in the U.E.W.
case 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. Housinp case, misapprehended
what the Divisional Court had stated in the A&P case, and that the -
Court, in fact, in its direction to the board of arbitration, did
so in a manner which was entirely consistent with the position
taken by Professor Weiler in the B.C. Housing case. At p.131 of I
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. In conch adhere to the prevailing consensus’ amonE arbitrate iion I would
TS. that the proper scope of arbitral review of both management’s se-cting stan-
dards or qualifications as well as its vsessment of emolowes’ abil.
ity should ensure that (in the words of the arb&&ii h’&iqf
Edgefax, at p. 389):
I' It is significant that the reasonableness of the
decision was linked by Professor Neiler to the question of whether
the employer, in assessing the factors to be considered by it iti
arriving at its determination, had done so completely: that is,
by considering all relevant evidence and discounting all.irrevelant
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. Housing case
(and, as well, by many other arbitrators), that the Divisional Court
in the A&P case had directed the:board to act as an appe$l.a.$e~_body ~~~,~ -
from the decision of management, resulted from a misreading of that :' . .,:;,;
case.
'I 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.
lie cites Brown and Beatty, Canadian Labour Arbitration, at pp.258-9.
He continued at i26-7:
In oLher words a minority of a:biLiel awards ha\'e $yTFd . .' . .
-8-
ro,~l~,sup~a,b~distinguishingthes~ czseson the basis lhat thepar-
titular senionty clause in question provided that the assessment of
en employee’s ability was t0 be based on managemenl's opinion. If
such 2 qualifying phrase is provided then the principles 0: Litlio~l
Cnrtideor h'ys~qf Ridyctmn apply. But if the agreement is silent
<hen ,an arbitrator may review management's assessment as a
questIon of fact. The seminal decision espousing rhis approach is
that of Professor Christie in Re Tetiik u’wkm Lhiw and Lady
Golf Tmoels Ltd. (1969), 20 L.P,.C. 332 where al pp. 363-4 he.ob
served:
’ The Divisional Court, in the’ A&P case, at pp.334-5,, -
identified, those cases where an employer would not be requ+?ed
to go beyond demonstrating its good faith in the administration
of the particular provision of the Agreement:
"It is
” If the rclcction and plnccmmt of cmployccr
‘in n&c rcf#6nsiblc positions is to be
rolcly a mmagmcnt function, tbcn it is wt.
diiiicult for ~tht pat-tics to P collccti~ agrec-
mcnt to set forth the understanding.
Whether managcmcnt is to bc unlettered
in such P decision, or vhcthcr DO promcr
tion can be made without the conscnt’uld
agrccmcot of the union, are matters that
can form pan of the collective ag-rccmenr
‘However whcrc, as her% the collective
rqrccmcnt state*:
then it is oprn to P mcmbcr of the union
LO take gric~ncc proctcdingr if hc or she
is of the opinion that the company has not
complied with the requkecmnts of the
CDlltctive ~grrcmmr *
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 employer had been
-9-
given an unfettered discretion to decide that the vacancy was
to be filled in the judgment of management. This might be found
inthe management rights clause or elsewhere in the agreement.
1~ 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 ALP case. Those pre-AhP cases, which Professor Weiler - -
identified, at pp.126-127 of 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 the "assessment
of an 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.
)1 The bivisional Court, in the A&P case, identified the -
two cases more precisely. In one case, management was granted the _-. .~__..
unfe,ttered power to make the assessment (at p.335). The Divisional
Court in 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
would be tantamount to delegating to management the power to grant
or withhold seniority rights as it sees fit." I would add, that it
would make meaningless the reference' to the qualities to be assessed,
if managementcould 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
discretion.
- 10 -
n Mr. J. D. O'Shea, Q.C., 5 in Re Canadian Broadcasting
Corp. and National Association of Broadcasting Emoloyees and
Technicians,. (1980) 26 L.A.C. (2d) 34 quite properly stated at
p.39:
If the judgment of the Court in the A&P
case is read without any pr.econceivedopinion
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 extensively from ~~-334-5 af the A&P case. -
The baaid was of the opinion that the prindple up3n +&zb it relied did not
depnd upon the inclusion in the mlle~& .puntnt of any 6pciJ languape
LO the eikt that the employer had exclusive d&&on to decide that the
vxancy ~~1s u, be filled in the judgmeni of -gemen~ Reference ras made
LC the decision 01 Mr. Justice Ron& acting as an arbitntn? in Rc CoMdian
lnduslriw Limired. I L.A:C. 234 wherein it ~8s sxed:
‘In this and every Like cpse where there is ram for ho”& di5eren.x of
opinion If it ~pw here admitted to h a fut-that the empbrer has
acted honestly, we do not feel that P Board 01 tiittton would hz juti6ed
As a result. I am of the opinion tihnt the mztter should be remitted TV the
board to determine whether OT not the employer in selecting Miss Holloway
for the position of Assisunt Head Coshiu. complied aith Ar;icle 9.M of the
mlleaire ngreemem. The issue to .ti~determined by the bcurd r-ill ,b one of
comparing the respctive rbla Md quli6cations 01 him. Dauvon md Miss
Holloway for the job in question, but rithout limiting itseE to de&mining if
the employefs se&ion wu honest and rrrronable.
cos!J of Lhe motion Lo the appliwr
"Unless the several parts of the Court's decision,
in the A&P case are related one to the other, it might be -
I erroneously concluded that the Court had identified the
responsibility of an arbitrator as requiring a fresh and mmediate
determination of the griever's right to the claimed job under the
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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.'
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. Dawson 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:
.At the outset, the Board had quite properly
and correctly set out the issues to be determined.
It then appeared to limit its consideration of
the question.
N 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 Hollotiay rather
than the grievor?
. . . .
By relying upon this princip,le the board
has, I think unduly restricted itself and
has failed to determine the issue placed
before it.
This is unfortunate, for the board appears to have carefully reviewed the evidence 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
- 12 -
which of the competitors should fill the vacant
position. Howevert 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 employer complied with the provisions
of the collective agreement.
"!Jhat the Court must have meant becomes clear upon .-
reading the analysis 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:
Ne grant that several passages in the Courts
reasons approving the bard'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. (2d) 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
way the board had intended. The contrary assumption,
that the Court meant its approval to define the issue
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 Couit
has directed arbitrators to consider the factors .__..~~;_
of honesty, comF%%eness 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,'
UThe first reference made by Professor Schiff (at p.232)
of the A&P Award) is as follows: .:: -
’ The appropriate pmvision of the part-time collective agreement is
qr~ 9.04, which reads: ‘When additional full-time employees are re-
quired the Company will give preference to part-time employees on the basis of seniority, skill and qua&cations for the job concerned
and availability for n,ork.” In terms of seniority the g+evor’s senior- irr date is April 6, 1967, while thar of Miss Hollouas is October 16, &I. Therefore, on the basis of the criterion of seiorit\y, the pie-
YOU uvould be entitled to succeed. Hou,ever, it is appvent kom ti. 9.04 that seniority is merely one ofthree criteria and is noten-
titled to be given paramount consideration over the other two. Thus I
the issue in the ease reduces to one of comparing the respective “skill and qualifications” of Mrs. Dawson and Miss Holloway for the
pu,icuIarjobin question.
- 13 -
“The second reference of Professor Schiff (at pp.295-6
of the A&P Award) is as foll.cv!s: :
rt IS now well established that a board of arbitration ought not to
interfere uith management’s decision so long 25 management has
acted honestI>’ and reasonably. That principle does not, in our vie\v,
depend on the inclusion in the collective agreement of special Ian-
puage to the effect that the emplo>ler 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 Carla-
dim Industries Ltd. and Vnikd Mine Workers, Local 19091 (1348),
1 L.A.C. 234 (Roach) [at p. 237]:
In itis and every like case where there is room for hones: difference cl opin-
ion. if it ~ppearr :.as here admitred to be a fact - ths: the employer has acred
honestly. ae do not feel that a Bead of Arbitrator would be justied.in inter.
king, b? reversing Lht employer’s decision. for the reason that LO do so would
.. resdr in mmmgement by ubiuatcrs rather than management by the employer
acting reasonably. could have reached rhc decision such z ir here chal.
lenged by tie Union. no Board cl Arbiuarom should inerfelert. . Or rake a
simpler illusuz~ionz take the cast of P merchant or z fanner or an) employer
operating on P rawably small scale. He hu. lee us say, six employees, one of
whom occupies a position superior to the others - somewbal in the rxure of P
foreman. The employer enw.ws duties to that fweman to m&e decisions, in.
cludiig the hiCng of employees, allocating them to different r~ks, trusting to
the skill and ability of that foreman. If the foreman should promote one of Ihe
other 6ve employees. u’hai would the merchant or farmer or other employee
think if the decision of the foreman. which was made honestly and not apri- ciousl~ or = o result of bias or bad faith or unjust discrimination, uzs subject 1D
retierr by some outidr agency which bad no lmowiedge of the nxure of tit rark
LO which the promoted employee was lo be uaigned? Tnr business of that ~FP
rhanl. farmer or other employer would. in those clcums~nceea, in L+ final anaL
ysis be operated in that respect neither by the employer or hir forerrsn, bul by
arbiuaors.
We un understand thn: an employee over whom some other employer bar been chosen may feel disappointed. but if Ihe decision of the employer has been
honestly made, we do not lhink that the disappointment of the employee or ang-
one representing him. should lead him 10 the paint where he would be tempted
to usurp from his employer the function and authoriiv rested in him alone. md
put it in the hands of 6ome third parq.
The reasoning of Mr. Justice Roach applies uith equal weight to the
right of management to make then inore fundamental det&miliation
of the specific qualifications required for a particular job vacancy,
and the.cases have so held: see most recently: Re Reynolds Abmi-
num Co: Camda Ltd. and lnf’l Molders and Allied Workers
hion, Local 28 (19741, 5 L.A.C. (2d) 251 (Schifn (at p. 254-5):
"such the same type of comment was made by' Mr. O'Shea
.n the C.B.C. case at p.41:
It is conceivable (if not likely) that the board of arbjtration in
the A & P cue might have upheld the compzny's decision even if
i: had zsked itself the right question, that is, "did the employer .,
comply tiith the provisions of the collective agreement?. '.
Is professor Schiff concluded (at p.214),that the ALP -
:ase required that the arbitrator test more than the honesty displayed
,y the employer in the carrying out of the process and the reasonable-
?ess of the decision: .::: ., .L" Faced with the grievor's charge that the
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 n.ot,,.as
the Court held the board in ALP had done, avoid
the specific determination b-topgng as soon
as the subsidhry 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.
- 15 - \
"As I understand Professor Schiff, when he refers to
the subsidary tests, these are "honesty . . . and reason" and the
principal test is one of completeness. .-
"It is significant that the court in the A@ case -
at 334).stated:
in
If the ~eicclion and phcanmt of ~,I,~I.,~
more responsible positionr is to be
SDltlY P mlnlgmcnt fun&~ tbtn it is not
diEdt for the parties to z collcctke aFee
mcnt t0 Set forth the understanding.
Whether mzuwwncnt is to bc nnfcrte=d
in such a decision. or whcthcr no prome-
tion can be made without the consen, urd
agrecmcnt of the union, are matcn that
cm form part 01 the collcctivc agreement
*Howcvc~ whcrc, as hcrc. the col~cctbc
a~icrmcnt states:
then it is open to a munbcr of the union
10 take grknncc procccdingr ii hc or she
is of the opinion that the company bar not
complied with the rcquirccmnts of the
collcctivc agrccmcn+ e
'The board was of the opinion that the
principle upon whic&it relied did not
depend on the inclusion in the collective
agreement of any special language to the
effect that the employer had exclusive
discietion to decide that the vacancy
was to be filled in the judgment of
management. Reference was made to the
decision of Mr. Justice Roach acting 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
:
- 16 -
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
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.teh?ative conclusions as to what the -L--~'~-
correct decision ought to be. The inevitable reticence of
arbitrators, referred to by Professor Christie in Lady Gait Towels
.(at p.3841, will ordinarily serve as a brake against the 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 call for 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, there will be
a comparison of the attributes established in the collective
agreement.
- 17 -
(b). In cases where the bona fides
test is followed
I reasonableness and completeness
1 there will be an identical comparison as
part of the completeness test: Bid the company consider all
relevant evidence and avoid the influence of irrelevant factors? . .
2(a) In cases where boards have claimed jurisdiction to
review an employer's decision on the merits, a conclusion
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 decision. 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
': :,j... .':. /::.i::.
whether professor Christie's presumption that management's
“supervisors are in the best Position to judge . . . qualific-
ations ...ll will be a factor'in the board's.decision. ~.
(b) In cases where the bona fides, reasonableness and completeness
test is followed, .an arbitrator will also be hard Pressed
not to arrive at a conclusion as to what the correct
decision 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,
- 18 -
although not required to do so in the same way, consider
bona fides and completeness. --.
M Whether the test applied,is couched in terms of
correctness or completeness, as long as the bona fides of manage- --
ment is a factor for consideration.by the arbitrator, along with
the reasonableness of the decision, the conclusions of arbitrartors
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 Galt, 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 _ . .
correctness of the decision is not a factor, the fact that an
arbitrator, in comparing the relative skill and ability 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 conside.rs
to be the correct one.
"Instead of analyzing what an arbitrator must do in
satisfying either test, there hasbeen 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 ignores the essentially
common features of what must take place in a practical setting
- 19 -
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 to be
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 same2 I
have perhaps taken too long to arrive at a conclusion, which
Professor Christie so succinctly stated in the Lady Gaft case."
As noted above, the Employer and the Union both
view the ALP case as imposing on the Board a duty to review the -
correctness of management's decision. In the case of the Employer,
its view of the ALP case is set out at p.11 of its written -
submissions, and I can only state that there is a significant
difference between the approach suggested by it as to the meaning
of correctness as compared with that presented by the Union,
.
which would require a complete rehearing, an approach that I -"-m--.~&-- :::
have suggested was not supported by the Divisional Court. Never-
theless, from the Employer's submission, it is apparent that it
expected the Board to make a determination on the question in a
manner not dissimilar to that espoused by the Union. (Submission
of Employer pp.13-14). There'was, however, a fundamental difference
between the parties as to how the Board was expected to do this.
;, :::j :
There was a good deal of evidence as to the way in
which the Employer carried out its obligations pursuant to the
ProvisiOns of Article 4.3. Because of the following acknowledg-
ments made by the Employer,it is unnecessary for me to review
that evidence in great detail:
1
- 20 - 5
The Employer called Mavis Fulcher, a Staffing Officer
employed by the Ministry since 1972. She stated that she had
participated in many competitions and had reviewed some 43
applications for the M.S.O. 5' position which is the subject of
the grievance. A number of candidates were chosen for
interviews and the Grievor and Mr; Karkruff were among them. She
described the selection process where the panel of interviewers,
made up of herself, Jim Watt and Don Campbell, put a series of '
questions (Exhibit 7) to each candidate. The answers were noted
and each candidate graded independently. The criteria necessary
for the M.S.O. 5 position were broken down and scores were given
within selected categories. On her own score sheets (Exhibit 15),
there is a comparison between the scores given to Mr. Robinson
and Mr. Xarkruff which showed that Mr. Karkruff was considered, by
her, to be the superior candidate on the basis of total points
and in certain areas which it was suggested most closely related
to the requirements of the position,-namely:"range of skills and
knowledge, project leadership~,='and achievements." .,~~~..
Don Campbell, another member of the original selection
panel testified, and I accept his evidence, that important attri-
butes of the M.S.O. 5 position included initiative, willingness to
learn and analytical skill. He reviewed the job description, selec-
1.:
_.
tion criteria and compared the resumsssubmitted by 'Mr. Robinson
(Exhibit 5) and Mr. Karkruff (Exhibit 14) and stated that had
Mr. Robinson not been an employee he would not have been on the short
list. He reviewed the selection process and, in so doing, confirmed
MS. Fulcher's earlier testimony. He reviewed the spreadsheets showing
the comparison of scores (Exhibit 19 and 20) and noted the super-
^
r:
- 21 -
iority of Mr. Karkruff under the heading "Experience" and
considered this to be a clear superiority. In his view, Mr.
Robinson was not capable of handling work at the M.S.O. 5 level;.
He cited defic,iencies in a drug distribution study performed by
MIY. Robinson (Exhibit 16) to justify his opinion and referred,
for corrobation, to the opinions of Nr. Birney (Exhibit 21) and
Mr. Thatcher (Exhibit 22). He also relied on criticism of
Mr. Robinson's performance made by Woods, Gordon (Exhibit 23).
The third member of the Committee, Mr. Watt, was not called by
the Employer and it was agreed by the parties that his testimony
would be substantially the same as that of Mr. Campbell.
What I find to be significant in the way in which the
Employer chose to carry out its obligations is set out at p.13 of
the Employer's written submissions:
It is respectfully submitted that on the strength of the resumes .and on the results
of the interviews Mr. Karkruff was correctly
chosen as the clearly superior candidate.
Further,at p.13 of the Employer's written submission, it
was stated:
It is respectfully submitted that the Employer
was correct in basing itsdecision on the
comparison of the resumes and the results of
the interviews alone.~ ~.The Employerdid. not
compare the "track record" of Mr. Robinson
and Mr. Karkruff in depth, as it had no direct
experience of Mr. Karkruff's performance.
What the Employer was referring to was the fact that Mr. Karkruff
was not then an employee of the !tinistry. On this basis it
was submitted that there was no reasonable means of comparing his
work performance in a real setting with that of the Grievor.
c - 22 -
I am satisfied that the evidence did not disclose,
(and the written submissions of the Employer confirm this), that
the Griever's actual work performance as an M.S.O. 3 (his .-
position, at all material times) was considered as part of the
selection process and it only became a factor after the grievance
was filed. In a 1976 evaluation of the Griever's work performance
by Mr. Dowsett (Exhibit 12), the Grievor was rated as "average"
in quality, quantity and initiative in his general job performance
appraisal, and above average only in dependability. Mr. Robinson's
promotion was recommended to the M.S.O. 4 level at that time.
Neither this evaluation or the Drug Distribution Study (Exhibit 10)
nor the Word Processing Study (Exhibit 16) were considered as
part of the selection process. It was only after the filing
of the grievance that these matters appear to have been considered.
Given the relationship between the M.S.O. 3, M.S.O. 4
and the M.S.O. 5 positions and given the uncontradicted evidence
that the Grievor, as an .&S.O. 3, would perform work which might-----
otherwise have been given to an M.S.O.. 4 or M.S.O. 5 (the
distribution of work being a function of priority and not rank)
there was an obvious and objective means of assessing the Griever's
fitness for the job. The reason given for not considering the
Griever's "track record" was that the Committee‘had no direct
knowledge of Mr. Karkruff's work performance. If this approach was
to be treated as a valid one, there might be situations where an
unsuccessful candidate had performed the job, performed it very
well and yet did not perform well on the test(s) which were created
in order to evaluate whether, and how well, an applicant could
- 23 -
be expected to perform the job. There was no evidence to
demonstrate that it was not reasonably possible to obtain valid .I
.information concerning Mr. Karkruff's performance on jobs tha-t
he had performed. Where there is objective evidence as to
performance of work directly related to the job in question,
it would represent the most valuable form of evidence concerning
a candidate's qualifications and ability. To overlook such evidence .~
is to ignore significant relevant evidence concerning a persons
qualifications and ability.
While I can find no fault,,with the test employed and
with the characteristics tested for and the evaluation given to
the various characteristics being tested, in the absence of an ,..
acceptable explanation for failure to consider actual work
performance which directly related to the attributes being tested
for, I cannot consider the evaluation procedure as being complete.
I wish to emphasize that the evidence.disclosed, and ._:. ~.__
this was acknowledged in the written submissions made by the
Employer, that all of the enquiries and evaluations, as they
related to the Griever's work performance, were conducted after
the job had beenawarded to Mr. Karkruff. Thus, Mr. David Harry,
Director, Management Systems Branch, reviewed the criteria set ~.~
out in Exhibits 3,4 and 6a and stated that these accurately
set out the requirements of the position. He also compared the
- 24 -
questions (Exhibit 7) selection criteria (Exhibit 8) and qualifi-
cations (Exhibit 9) and concluded that the demands of the position
were accurately represented. Be also reviewed the scores of the _-
Committee, and confirmed his decision to hire Mr. Xarkruff on the
basis of information received from Nessrs. Watt and Campbell.
However, the evidence discloses that the only evidence that was
relied on by the Employer was the resumes and the test and its
results. My conclusions are, as above noted,. confirmed by the
Employer's submission:
"It is resp,ectfully submitted that the Employer
was correct in basing its decision on the
comparison of the resumes and the results of the
interviews alone."
The evidence of the Employer as to the quality of the
work performance of the Griever, if accepted, would cause one
to wonder why the Grievor was not demoted or, in fact, dismissed.
If the Griever's work record was as deficient as the Employer
suggests, it is inconceivable that the Grievor would have been _.~
permitted to proceed to an interview.
In order to further support its position, the Employer
also called Dr. David H. Gellman, an expert with considerable train-
ing and expertise in management systems and consulting, to analyze
the reports prepared by the Grievor. Dr. Gellman testified that
he studied the specifications and standards required at both
the M.S.O. 3 and M.S.O. 5 levels. His conclusion was that the
Drug Distribution Study (Exhibit 10A) failed to meet the elementary
standard expected of an M.S.O. 3 and that the Word Processing Study
(Exhibit 16) demonstrated similar deficiencies. I am satisfied
that Dr. Gellman's conclusions may be correct on a theoretical
:1
::
I
- 25 -
analysis. However, during cross-examination, he conceded -that in
recent years he had not worked with the Ministry of Health nor
for the Management Systems Branch. Even though he had, as he .-
testified, reviewed Exhibits 6B and C and applied the standards
set forth to the analysis of the Grievor's work, he testified
that he had not compared the work with that of other persons
performing at the M.S.O. 5 level. It would be important to know
whether the standard of performance manifested by the Griever
met departmental expectations for an M.S.O. 5 and this information
could only be obtained if such a comparison were made.
There may be occasions where an artifical test, in the
sense that it does not consider actual evidence of work performance,
may have to suffice because of'the genuine inability to obtain
objective evidence that would be useful in assessing the qualif-
ications of an applicant. In fact, such a test, even where
objective evidence of act.ual work performance is available, can-~.<--
be quite useful in supplementing the objective evidence. In
this case, however, there was objective evidence of the work
performance of the Grievor, and there was no acceptable explanation
showing why similar information could not be obtained concerning
the actual work performance of Mr. Karkruff. This resulted in ~~ ~~
the Employer conducting the evaluation process under Article 4.3 of
the Collective Agreement on the basis of a test and a consideration
of resumes. Although the validity of the test is not faulted.
by me, in the absence of any demonstration that the available
objective evidence of real work performance of the Grievor
was considered in the selection process I must conclude that
the process followed by the Employer was incomplete.
,.
. .
- 26 -
The evidence called on behalf of the Employer with
respect to the Griever's work record would cause me to conclude
that the Grievor's performance was manifestly deficient at any-
level. This is difficult to accept because the Grievor was,
notwithstanding, permitted to proceed to the interview stage
and his overall score is not markedly different from that of
the successful applicant. I wonder how such a manifestly
unsuitable candidate could have achieved such a score. I am left
with the impression that but for the candidacy of Mr. Karkruff,
the Griever might very well have been the successful candidate.
At the close of the Union's case, the Employer moved
for non-suit and stated:
"Further the Grievor must demonstrate that his
qualifications and ability to perform the required duties are
relatively equal to those of the successful candidates, and
therefore, that his seniority should have been taken into
consideration. (Quinn--;z"vs. - Ministry of Transportation and=----~"L--
Communications, 9/78 (Pritchard), and, Remark - vs. - Ministry
of Revenue 149/77 (Swinton))."
The Employer submitted that the Union had failed to
make a prima facie case and that the Employer's motion for non-
suit should be granted.
The Board reserved its decision on the motion. The
Employer elected to adduce evidence. The Employer submitted
that where the Employer elects to adduce evidence:
-27-. i
II . . . a Board is justified, when considering
the question of whether the proponent has made~
a case, in,eXamining all the evidence
adduced at the hearing.
(Re: Gilbarco Canada Ltd. - vs. - Canadian Union
.~.. of Golden Triangle Workers: (1973) 1 L.A.C. (2nd)"
343 at p. 353 (Carter); and Brown and Beatty',
Canadian Labour Arbitration 3:2640)."
Because of the view that I took of the direction of
the Divisional Court to arbitrators as to their responsibility
in promotion cases, the obligation on the Griever would not be
as described by counsel for the Employer. At pp.39 to 41 of ~...
the A&P case, reproduced in the C B C - case, referred to above, A.
the board of arbitration in seeing "to it that the provisions of
the collective agreement have been complied with" has a role
which "cannot be more than this:"
.._~C -~. ThchmqsndIxkof.i+iduinrmldn~ the dedrionrrrknon~kti~into-unt so,ro~.~kthc aertionor wkkktrornocthc empIoyerhrrxt=d -ntbly. Mea& in.detaminiq
the ‘,a.so,,abienerr” of the employdr de&ion. the board GUY go. long MY
to de&tine the iarve rubmitt. to ii Biowever. ona the mlkcrive agrremenr nvkea pmtiionr it. to the me&d of sekction Of UnPlOYW for
pmmotionr, then the bad must see to it that Ihe pm~o- hm been
mmplkd with wd in LO doing. it cannot rest+ itself to detvmining =b+&r
the employer a.4 homrtly md -=bly. . . .
In addition to honesty and .reasonableness, the board must
scrutinize the actions of the Employer to see that it canvassed
all evidence relevant to the determination of the question and,
in the process, was not influenced by irrelevant evidence. The
suggested onus does not appear to me to enter into or arise
- 28 -
from the reasons of the Court. I would, however, find on the
evidence that a prima 'facie case has been made out that the
Grievor had the qualifications and ability to perform the M.S.0,.
5 job.
To accede to the request of counsel for the Employer
would necessitate a finding that the ALP case mandated a hearing -
de novo,with the issue to be decided by the arbitrator, a --
requirement which I do not find in the judgment of the Court.
The motion for non-suit therefore fails.
Although I would allow the grievance, this is not a
case where I could consider awarding the position to the Grievor.
This is a case where the matter should be remitted back to the
Employer for a reassessment in accordance with Article 4.3, not-
withstanding the considerable elapse of time. For obvious reasons,
I regret having to make such an Award as I am aware of the
difficulty imposed by such a ruling. The evidence, was, however,
insufficient to enable-&'to consider awarding the position to=~'=
the Grievor.
This is not a case where the parties, agreed to a
standard which they wished the Board to apply. Cf. Re Falcon-
bridge Nickel Mines Ltd. and Brunner et al. (No. 2) (1882) 31
O.R. (2d) 14 at 17. Rather, here, the parties merely argued in
favour of a particular interpretation of a case, which they
acknowledged bound this Board. They did not say that they wished
a rule (that of correctness) to apply to them whatever the direction
given to boards of arbitration by the A&P case. In fact they -
L,‘:,.:;:
:
- 29 - 1
disagreed as to how such a'standard of correctness should be
applied. In the circumstances there was no jurisdiction furnished
to depart from the standard imposed by the A&P case. -
In the case of Regina v . Ontario Public Service
Employees' Union et al. (1982), 35 O.R. (2d) 670, the Divisional
Court concluded that section 18(l) of the Crown Employees'
Collective Bargaining Act, 1972, gave the board the power to
promote an unsuccessful bidder. But, in that case, the board
had decided that the grievor had made out a prima facie case that --
"he was at least equal in ability and qualifications to all other
candidates in each competition." (O.P.S.E.U. case at p.673). The
evidence submitted in this case does not enable us to make such
a finding. It only demonstrated a prima facie case that the --
Griever had the qualifications and ability to perform the required
duties.
For the reasons, above stated, the Grievor, in order to
succeed, need not demonstrate the prima facie case referred to._.c~~i
in the O.P.S.E.U. case. The issue is quite different. Nevertheless,
such a showing may emerge in some cases,as it did in the latter
case. Success, for the Grievor, however, does not mean that we
can award the position to him in the absence of the kind of
showing as was made in the 0.P;S.E.U. case. .'
If the task for the Board was to hear the case de nova,
there would, ordinarily, be little sense in referring the matter
back to the Employer in order to do its job correctly. As is
clear from the O.P.S.E.U. case, the awarding of the position to
the Griever would be unusual and depends on more factors than
- 30 -
the finding of such a prima facie case as I have found.
I would also add that the Court, in the O.P.S.E.U. case..
was not called on to rule on the standard of review established
in the A&P case. -
DATED AT London, Ontario
this 28th day of March 1984.
1.1. R. Gorsky
Vice Chairman
"I dissent" (see attached)
R. Russell Member
J. H. Morrow
Member
:
i
DISSENT
IN THE MATTER OF an Arbitration between OPSEU and The Ministry of Health
ES: Grievance of Gordon~Robinson... .522/80
I regret that I must dissent from the Chairman's comments
regarding the standard of review set out in the A & P case. I respectfully
suggest that because the Grievance Settlement Board is a statutory, 'rather
than ad hoc Tribunal, its various panels should'endeavour to achieve some
measure of consistency in their interpretations of leading cases for all
the same reasons that they have generally attempted to be consistent in
their interpretations of various clauses in the Collective Agreement.
The mischief caused by one panel proceeding on its own, as in this case,
without regard for the Board's previous jurisprudence is readily apparent.
Both parties submitted detailed arguments based on a standard of correctness
and they are now told after the game is over that they were not playing by
the proper rules! I believe that both parties have been prejudiced by this
result. ..T :
Apart from its inconsistency with previous awards, I view the
adoption of a standard of completeness as wrong, given the language of this
Collective Agreement. Article 4.3 states that, "...where qualifications
and ability are relatively equal,--length of continuous service shall be a
consideration." By choosing to review the employer's selection according
to a standard of completeness rather than correctness, the Chairman has,
in my respectful opinion, placed an undue emphasis on the employer's
procedures in the selection process to the extent that the real issue in
dispute, namely, the relative ability of Robinson and Karkruff ha* been
overlooked.
-2-
1 realize that there have been a number of cases in which panels
of this Board have found the selection procedures followed in a
competition to have been so gravely deficient as to render impossible any
meaningful conclusions as to the relative qualifications and ability of the
applicant*. In those cases, I would concede that the Board has correctly
remitted the matter back to the employer for a 're-run" of the competition.
I do not believe this to have been the case here, and indeed it was not
presented as such by the Union.
In short, I can only conclude that the Chairman has invented the
test of completeness and applied it to the facts of this situation in order
to invent a procedural defect not alleged by the Union, and thereby remit
the whole matter back to the employer for a 'Ye-run" rather than decide
this case on the evidence of qualification* and ability placed before us.
Consequently, this ~panel has ~failed'to~anstier'the'question~put to us by
the parties, and in so doing we have failed'to ~exercise our 1 urisdiction.
:;
In my opinion, the grievance should have been upheld. The
"incompleteness" found by the Chairman in the failure of the employer to
consider the griever's actual work performance as an MS03 and Mr. Karkruff's
performance on previous jobs could have been overcome if the majority of
this panel had fully considered all the evidence and written argument.
In my opinion, it matters not if the employer failed to consider such
evidence at the time of the original decision (although I infer from the
manager's testimony that it was in their minds even if not the subject of
detailed discussion.) What is important is that the evidence of both
applicants' performance was in fact placed before the. Board.
-3-
The documentary evidence available on the Griever is relatively
limited, but we had the benefit of testimony from both'his peers and
supervisors. Similarly, the documentary evidence with respect to
Mr. Karkruff is largely limited to the resume which he provided and to his . .
comments before the Selection Board. This is all that is available to
most selection boards and I feel it should be considered sufficient to
enable this Board to decide whether or not there was a violation of the
Collective Agreement.
In finding tha'c I would have upheld the grievance, I rely on a
few key points:
1. The scores of the two applicants in the
selection competition showed no
substantial difference;
2. The evidence of the Griever's
unsatisfactory performance must be
largely discounted because it was never
brought to his attention at the time.
The griever had little or no reason to believe that his work on
projects cited by the employer was unsatisfactory until it was offered as
an explanation for rejecting his application in the competition, This case
is unique among those heard by this Board, in that it essentially concerns
the rejection of an applicant on the grounds of poor work performance of
which he was largely unaware. In my opinion, the employer has a duty to
appraise an employee promptly of any serious deficiencies in his work
either through the disciplinary process if negligence is suspected or
through an annual performance review, especially where that employee works,
as is the case here, in a Management Systems Branch whose leaders should
be especially qualified in these procedures. In my opinion, it is just
,...
:.
;;::, ‘/
-4-
as unfair for an employer to rely on unreported performance complaints
in denying an employee a promotional opportunity as it is for that same
employer to rely on unreported disciplinarymeasures in order to justify
a culminating incident warranting dismissal.
All of which is respectfully submitted.
Ross Russell
February 20, 1984
ADDENDUM TO AWARD
I have examined the Dissent of Mr. Russell and wish
to make the following remarks concerning his comments: .-
1.~ While I agree that the various panels of the Board should
endeavor to achieve consistency in their interpretation of
'binding cases, I regret that my interpretation of the A&P -
case is different from that of a number of other panels.
I would have,'as I observed in the Award, been agreeable
to adhere to a standard chosen and agreed to by the parties
even if it differed from the standard I found imposed by the
A&P case. While the parties did not agree with my reading
of that case, their individual interpretations of the standard
of review did not accord with the cases which they cited to
me, where such standard was apparently expressed (a standard
different from the one found by me to have been imparted by
the Divisional Court in the A&P case). In these circumstances -
and, as well, becaus.e.&here being less than perfect agreement=
in the cases cited to me as being the preferred interpretation
of the A&P case, I concluded that I must interpret the A&P
direction as it appeared to me.
2. Mr. Russell disagrees with my conclusions as to the meaning
of the A&P direction. - I have already, and at great length,
explained why I rejected the correctness test favored by him.
Needless to say, I have obviously not invented the test
employed by me,as appears from the Award.
3. The question put to this Boardwaswhether the employer
complied with Article 4.03 of the collective agreement. AS
I understood that issue, the majority of this Board answered in
the negative. I concluded that in order for this Board to
be able to award the position to the Grievor, we would require
more evidence as to 'the relative qualifications and abilities
of the Grievor arid the incumbent. In my view there was
insufficient evidence concerning those matters to enable
this Board to make a finding as occurred in the O.P.S.E.U.
case, referred to in the Award.
4. I would disagree with Mr. Russell that the Grievor was
unaware of the fact that there were misgivings concerning
his work performance. The studies referred to in the Award
resulted in a number of exchanges between the Grievor and his
supervisors which must be seen as having conveyed to him
the existence of some misgivings on the part of his super-
visors as to the quality of the studies. In the result I
could not arrive at the resolution favoured by Mr. Russell.
DATED AT London, Ontario
this 28thday of March 1984
-7.4. 9%--f+ .
M. R. Gorsky
Arbitrator