HomeMy WebLinkAbout1981-0239.Cross.81-04-06 f
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GRIEVANCE
SETTLEMENT
BOARD
180 IJUrr0A,$ SPREET WEST -LAONTO. ONTARIO. A+5G rZ8-SUITE 2100 TELEPf&.VE+ -216/598-0668
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IN THE MATTER OF AN ARBITRATION
under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOAR:
Between: OPSEU (Mr. John Cross) Grievor
-- And
The Crown in Right of Ontario
(Ministry of Transportation and
Communications) Employer
Before: Mr. E.B. Joiliffe , Q.C. Vice Chairman
Prof. F. D. Colton Member
Mr. E. R. O'Kelly Member
For the Grievor: Mrs. L. Stevens
Grievance/Classification Cfficer
Ontario Public Service Employees Cnicn
For the Enalover: !]r. N. H . Pett for
staff relations S pe_viscr
Ministry of Transportation and
Communications
Kearings : November 19 3n2 25 , = -'S :
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D E C I S I O N
In March, 1981 , Mr. John Cross , a Manual Worker E Pr emluni i
with the Ministry of Transportation and Communications , applied for
a position as Highway Equipment Operator 1 , which had been adver-
tised as "open to regular and probationary staff of this Ministry
and general public. "
According to the Regional Personnel Officer, Mr . W.
Marleau, there were about 30 candidates , seven from within the
public service and 23 from "outside" . of these only three were
interviewed : Mr . Cross , Mr . Albert Lamb and Mr . Steven Kunkel .
By• a unanimous decision of the selection board, Mr . Lamb was rated
first , Mr . Kunkel second and Mr . Cross third .
The successful candidate was not a public servant at the
time, although he had served seasonally in various capacities �tiw
the Ministry of Natural Resources ; in other words , he had no
seniority . Mr . Cross had been with the Ministry of Transpor_ation
and Communications since August, 1974 , or almost seven years .
Believing himself to be as well qualified as yr . Lamb, and perhaps
better qualified , Mr . Cross grieved against the result of :!%e
competition , relying on Article 4 . 3 in the collective agree^en_
between Management Board and the Ontario Public Se_v-ce ��►c:.:� zes
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Union, which is as follows :
In filling a vacancy, the Employer shall give primary consider-
ation to qualifications and ability to perform the required
duties. Where qualifications ani ability are relatively equal,
length of continuous service shall be a consideration.
When the grievance came on for hearing by this Board ,
both Mr . Cross and Mr . Lamb- were called as witnesses by Ms . Stevens
and questioned at some length with a view to establishing their
experience and other qualifications . Mr . Lamb was also given an
opportunity to ask questions and make representations, but he
declined to do so .
Witnesses called by the employer ' s representative , Mr .
Pettifor, included all three members of the selection board . They
were Mr . Wilfred Marleau, Personnel Officer for the t4orthern
Region, headquartered at North Bay, Mr . Ross Krieg, area Supervisor
of ld Patrols in the North Bay District, and Mr . Vernon Fry , a
veteran of 32 years ' service , who had supervised Mr . Cross among
others on road work. Thus this ' Board has heard the testimcny cf
all the principals involved in the competition interviews excep=
Mr . Kunkel .
The contested position was described in the adverb semen':
of March 26 ( Exhibit 6 ) as "Patrol Cperatcr A" with a classy=�c�
of Highway Equipment Operator 1 , located at Faalei' ' s Ccrnzrs ,
• a �
Patrol No . 8 .
The "duties " of the position were summarized in tae
following words :
- gyrate a variety of Ministry 'TYm "A" c r "E" patrol Ecuipmernt
in summer and winter for a total of 70% cf the year's 4cxkir:g
time
- m=ate and maintain within Farley's Corners Patrol various
types of Patrol Equipment for the purpose of maintaining roads
acrd right of way
- Act as wingman in winter and perform General Labouring duties
uhen required
It was also stated that the candidate . . .
- Must have ability to prepare and review reports and forms
- Mist possess 'a "D" operator's licence arxi be able to obtain
a Ministry's Operator Permit
- Must have an acceptable driving record
Should have expsrience in the operation cf Ministry equipment
- Should have knowledge of General Maintenance practices and
procedures
- Should be in good physical condition
The language used above is much more abbreviated than
what appears in the Position Specification and Class allccawi,cn,
Exhibit 5 , which goes into much detail and need not be set out
fully here . It may be noted, however, that in paragraph 5 -*-
specifies the following possible duty : "flay be required to act as
sub-foreman in the absence of the Patrolman . " The evidence --n-
dicates that when this need arises , it is :canal y the sen!c_
operator in the patrol, not a recent appointee , who takes ccir mand .
Nevertheless , in theory at least, the requirement is there . :r-
became obvious from statements by the selection board that all
three of them attached importance to what they called "supervisor.!
ability . "
There are of course several. aspects of "qualifications
and ability " as that term is used in Article 4 . 3 . One aspect
obviously is experience, not always the same as seniority . A
second aspect can be the nature of skills and knowledge acquired
during past experience . A third (more important in some positions
than in others ) is the educational level attained by the candidate .
It is also a fact of life that some people have the innate ability
to cope with new problems and master new skills . In some positions
the habit of building good relations with others can be very im-
portant . This list may not be complete, and it should probably
include, whenever appropriate, a certain capacity to take initiatives
and give such leadership as may become necessary .
With these considerations in mind, a summary review o-!
the testimony of Mr,. Cross and Mr . Lamb may be in order . We nc*_e
first that both candidates had a Grade 12 education and that Mr .
Lamb began his working career in 1968 ; the grievor began ahcut two
years later .
During his last two years at school Mr . Cross took
courses in auto mechanics . His first job was with Canadian Ti-e
Corporation. After about one year he joined his uncle buildi.g
houses in North Bay ; it was "carpentry work . " A few months late=
he started with the Ministry of Transportation and Communications
as a "Rodman, " and in due course passed examinations for "Tech 1 :'
and "Tech 2 . " He had the latter rating from 1974 to 1977, while
on road and survey projects , not operating equipment but performing
some paper work for each two-week period .
in 1977 Mr . Cross was given maintenance work (some of
which he had already done at Parley ' s Corners in winter ) and• becane
a "Manual Worker (Premium ) . " In winter he served as a wingman with
a snow plough and frequently relieved the regular operator as
driver. Occasionally he operated a "one-way plough" with no wing .
Responsible to a Patrolman, he was never called on to act as Night
Patrolman, a duty sometimes assigned to an Operator 1 .
In summer after 1977 Mr . Cross did "maintenance " work
on the roads : filling pot:-holes , repairing signs , grass-cutti:g
and brush-cutting, etc . , driving 3-ton and 5-ton trucks when
required . At times he also did minor maintenance work on trucks .
In the summer of 1980 he had some time-keeping experience recording
attendance, truck hours and mileage , gas consumption , etc .
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Exhibit 11 shows the grievor ' s perm*_ as an equipment
operator, the equipment on which he had been tested and the da-e
on which each test was passed. He had proved his ability, to oper-
ate five kinds of light equipment (Type A ) and two kinds of heavy
equipment (Type B) --- the 4-0" ton truck with plow and wing, and
the steam generator. The latter of course are used in winter for
removing snow and ice from highways and culverts .
According to the grievor ' s testimony --- confirmed by
other witnesses --- his driving duties , particularly in winter,
have been similar to those of an Operator 1 . As he put it : "They
have more driving time, but they don' t operate different equipment . "
He said he had done most of the work described in Exhibit a (the
Position Specification for an Operator 1 ) but had no experience in
"salting and sanding. " He had served on both night shifts and day
shifts . He had no disciplinary record and no loss of points under
the Highway Traffic Act.
In cross-examination, the grievor said that before being
transferred to maintenance work he had failed the "Tech 3 " exam-
ination , but he also said it was not required for his job and he
knew another man who had passed it after three attempts . He
admitted having never acted in a "supervisory capacity . " His per-
formance had been evaluated annually . He did not produce he
evaluations and apparently they were not considered -at ate_
selection board, which relied almost exclusi,rely on Interviews
with three candidates .
Mr . Albert Lamb, the successful candidate, graduated fr m
high school at Powassan in 1968 (but not with technical traini::y ;
and then worked for six months as a labourer in a sawmill . Cr.
becoming a cadet or trainee. with the North Hay City Police, he
functioned "mostly as a dispatcher . " He says he "did not really
like the job" and the Chief thought he was too "easy-going" to be
a policeman , so that after two and one-half years he did some truck-
driving and then returned briefly to the sawmill .
Commencing in 1971 , Mr . Lamb was employed seasonally by
the Ministry of Natural Resources, sometimes in-winter but usually
in the summer, these periods totalling between seven and 11 months
in each year . His first job was as a labourer, flagging for con-
struction crews .
In winters Mr . Lamb took part in the improvement of timbe,
stands , often using a chain-saw, sometimes skidding with a large
4-wheel drive tractor . He had a Class A licence and took two defer.-
sive driving courses with the Ministry of Natural 'Hesources . 't
times he drove heavy equipment for that Ministry , including a c::e-
way snow plough . He had also driven a Five--tcn truck for h—{s
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In summers Mr . Lamb had varied experience with differ e::
types of equipment . He drove dump-trucks and other vehicles cn
forest access roads . Much of the time in summer months he was
assigned to fire-fighting duties as one of a five-man crew. :cr
a big fire a base camp would be established at which he became
leader of a crew of draftees , normally lifted by helicopter to :-e
site of the blaze . The equipment used would depend on the avail-
ability of water and the nature of the emergency . Mr . Lamb said
that at least once in each summer he had led a Large crew drafted
to fight a major forest fire .
When not employed by M.N.R.', Mr . Lamb had "iisually , "
he said, found other work . For example , he .had worked in a
garage about three months, and also some evenings . Having no full-
time regular job with M.N.R: , he applied for the position at Fa_ley ' s
Corners as soon as he heard about it . At the time , of course, he
had not undergone any of the tests given by the Ministry of Trans-
portation and Communications , but since his appointment in April
he has passed many of them. His previous experience included
operation of several kinds of heavy equipment .
Mr . Wilfred Marleau, Regional Personnel Officer , tesMi,ied
that after rating the three candidates interviewed , Mfr . Lamb seemed
clear?v superior in qualifications and ability , due largely -o -:zs
varied experience and "supezvisory potential . " !fir . Mar?ea;: asses_a-Z
that "some consideration was given to seniority, " but it did r.o:
seem relevant when qualifications were not "relatively equal . " cue
emphasized the statement in Exhibit 5 (the Position Specificaz ion
for .an operator 1 ) that -the incumbent "may be required to act as
sub-foreman in the absence of the Patrolman . " He had made notes
oy answers at the interviews , reproduced in Exhibit 12 . Cues ions
previously prepared were in Exhibit 8A; three "Qualification
Criteria" and three "Selection Criteria' were in Exhibit 8 .
In cross-examination, Mr . Marleau . said the selection 1ca_d
relied on the candidates ' application forms and their answers at
interviews . There had been no check with the Ministry of Natural
Resources or elsewhere regarding Mr. Lamb' s record. As for looking
at performance evaluations he said that "the only time we'd check
personnel files would be where the scores are close . " He had been
disappointed when Mr. Cross did not give better answers in view
of the fact that he had been on patrol work for several years .
Mr . Ross Krieg , the area patrol supervisor who had acted
as chairman of the selection board, gave evidence to much the same
effect as Mr . Marleau . He said Mr . Cross had been responsible to
Mr . Fry, who was responsible to himself . He knew about the 5rievcr' s
record , and it was "satisfactory . " However, Mr . Lamb' s experience
with many different kinds of equipment seemed much superior . _..
the circumstances he did not think seniority was "effective . "
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Mr . Vernon Fry, third member of the selection board , had
supervised Mr . Cross for seven years and was "quite satisfied " x=:;.
his work . However , he thought Mr . Lamb the better choice beca"e
of his equipment experience, his ability and his - "supervisory
potential , " He conceded that much of the work done by a manual-
Labourer ( Premium ) like Mr . Cross is the same as work done by an
Operator 1 and experience in the former is good preparation for the
latter .
The notes made at the interview by the three-- members of
the selection board (Exhibit 12, 13 and 14 ) are significant . In
general they express opinions rather than recording answers given .
For example , Mr. Marleau concluded his notes about Mr . Cross with
the following words :
No incentive This man requires more experience on Patrol
work Reluctant to supervise staff couldn't learn cn his own
would require checking.
Similarly, the concluding comment ,on Mr . Cross in the
"Candidate Rating Form " (Exhibit 9 ) was :
'Milling worker, however would require a lot of supervision.
On the other hand , the concluding comment on yr . yam
was
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Planning skills good. Answered questions ve--7 intelligently.
And a similar comment was made on the candwdate Steven
Kunkel .
The rating form gave a weight of 10 to "Technical
Here Mr . Lamb received 10, Mr . Kunkel 7 and the grievor 5 .
"Problem Analysis/Decision Making Ability " had a weight
of 7 . Mr . Lamb scored 10 , Mr . Kunkel also 10 and the grievor 7.
The third criterion, "Planning Skills " was weighted 5 .
Mr . Lamb received another 10 , Mr. Kunkel another 10 and the grievor o .
Adjusted by weighting, these scores gave Mr . Lamb a total
of 220 ---- the maximum possible --- Mr. Kunkel 190 and the grievor
139 .
In argument on behalf of the grievor, his . Stevens said
the procedure followed by the selection board had been defective .
Members of the board had simply failed to elicit sufficient infor-
mation . They had not looked at any performance evaluations . They
had not sought any references from former employers or supervisors .
They had not bothered to consider any candidates seriously. et-er
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than the three interviewd . Only one had any knowledge Of
grievor ' s performance- and not one of them really knew Xr .. Lam.-W's
background. They did not score each candidate independently after
each interview, but simply met afterwards -and decided to give Mr .
Lamb a perfect score .
All these features of the competition, Ms. Stevens argued,
were contrary to well-recognized principles in reaching a proper
result . She cited this Hoard' s decision in Remark 149/77, Quinn
9/78 , Hoffman 22/79 and Saras 179/79 . She charged that the
conduct of competitions within the Ministry of Transportation and
Communications had been consistently "faulty, " and deliberately
evaded the guidelines in Quinn.
Ms . Stevens also compared the experience of the grievor
with that of Mr. Lamb. Quoting Saras she said Mr . Lamb had qualities
or experience not needed for the job of Operator 1 and therefore
irrelevant . On the evidence she submitted that Mr . Cross was t1he
superior candidate, as well as having seniority .
For the employer , Mr . Pettifor said the Union had f aile
to discharge_ the onus of showing that the grievor was either suerior
to or "relatively equal " to the successful candidate . He co:::-ed
out that Article 4 . 3 does not make seniority a decisive factor : �-�
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merely requires that seniority be "considered, " and this 'mad been
done .
Mr . Pettifor also contended that arbitrators had :,een
unrealistic and uninformed in applying certain standards to ccmpe-
titions in the public service "dealing with a single job . " Manage-
ment "could not review the files of hundreds of applicants from
all over. ,, He seemed to indicate that his Ministry did not intend
to Change its own established procedures . In his opinion the onus
was on candidates to provide all relevant information . The questions
used here had been used in other competitions with s atisf actory
results . Citing Gavel 145/80 and Doherty 43/76 , he said the only
requirements were that "reasonable criteria be applied in a reason-
able manner. "
In reply, Ms . Stevens said Doherty was based cn different
language in an earlier version of Article 4.3 .
It must now be said that the grievor and his union had
reason to challenge the rather inadequate procedures used in *_he
competition won by Mr . Lamb. C3:early , all three of the candidates
interviewed had their merits. Nothing said herein should be consid-
ered to reflect unfavourably on any candidate . At the same time ,
it is not difficult to understand that the selection board was
impressed by Mr . Lamb' s variety of experience , including pa_=_c-
ularly the supervisory role in fire-fighting he had some rimes been
given by the Ministry of Natural resources .
More difficult to understand is the reluctance or unwill-
ingness of Ministry officials to inform themselves more fully abcu=
candidates interviewed. This is not a question of reviewing
hundreds of files from all over, as Mr. Pettifor suggested. In .h—_s
particular case it would have been extremely simple to look at the
grievor ' s annual evaluations, and equally simple to ask the Minism_v
of Natural Resources in the same area for information about Mr.
Lamb and his performance . Moreover, members -of the selection board
would gain credibility by arriving at their scoring independently
instead of meeting afterwards and unanimously agreeing that one
candidate deserved a perfect score . Even if the true destination
was safely reached, the driving procedures used to get there were
neither correct nor efficient . If selection boards object to be-ntq
well-informed about candidates and persist in relying almost
entirely on interviews , they are over-estimating their own powers
of judgment on sight, they are using a primitive approach to
personnel selection and invite more contests before this Board .
Contrary to the theory that the entire onus is on candidates , the
real onus to make a correct decision is on the selectier. :oard .
In this case , as in Kosnaskie 41/ 79 , this Board roes :z-_
pretend possess all the facts abour- _he three
v_4 ewed However , here again -he ?ca=d -_4ses -mr. .easr. ',-a7e :'-e
aCi-,an--age *,ay..ing head tes:imory ::c:h --'-e yr:.ev:%_ an:a
31.:Ccess u: cardida-.e . They -_-nder 0--Bt.", a,-.d t- n:-;
- - -d was C'naller;ed . 'The 3card Chas al-cc hear-4 exl:ensve a.:=%Ime:: _
c n Za h a f: n e -a r-z i e s
The :racial question is rghet�i,&er :ne rar.her
me:h,ods znf pe.-,sornel se-lection _j ,-j phis case were suc- as zo CaL;Se
whar. might be cal-led a "m-Lscarr-Aage c,! --n =u—, cpi-ion ,
.na ;rie-.-or ' s representa?:Jve suceeded -4z shJw.;.
I:sed -4 -,. chaosing, Mr . iamb were not the Met-hOdS wh�' Ch _-u7t-t r-C
'Ze e n u s ed '.r.h a h c w e z e r s i n s u f-4 i C_4 e zi t t c es r-a'--I!s a r
was .4-.01; 'rhe, onijS was on the V-4 ievC: 'r.c nzoVe "re'=:-7e
:31A v cur opin4cz it has not been pro7ed . Xorecver
seems to --,s on reviewing all --e evideiCe
it may :e --- tha- f*.te eva-:'-a�
:�-e reascns gi-ien , :'-a
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