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HomeMy WebLinkAbout1981-0575.Brown.82-07-23Between: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING UNIT Before THE GRIEVdNCE SETTLEMENT GOARD aefore: OPSEU (D. '3. 3rown) -and- Grievor The Crown in Right of Ontario (Ministry of Transportation and Communications) Emplo:yer E. a. Zolliffe, Q.C. - Vice Chairman J. ?kilanus - Member W.J. Evans - iMember For the Grievor: P.Cavalluzzo, Counsel Golden, Levinson For the Employer: N.H. Pettifor Staff Relations SuperViSer Ministry of Transportation and Communications Hearing: March 16, 1982 -2- DECISION Section 18(2) of the Crown Employees' Collective Bargaining Act provides that in addition to any other rights of grievance under a collective agreement, an employee claiming that his position has been appraised "contrary to the governing principles and standards" may'process the matter in accordance with the procedure provided in the collective agreement and further may, if desired, take the matter to arbitration under Section 19 of the Act. After complaining about an appraisal made in May, 1961, Mr. D.B. Brown has resorted to the remedy referred to above. Employed for more than 25 yearsby the Ministry of Transportation and Communications, he has been since 1963 a Drafter Tracer in the Surveys and Plans Office at the Downsview establishment of the Ministry. He complained.in his grievance of June 15 that "my appraisal dated May 15, 1981, is unjust and unfair." His reque"st was that the appraisal "properly reflect my performance and that the overall rating be competent and that there be no negative comments." The employer's position is set out clearly in the appraisai itself, Exhibit 2. In Section C thereof ("Basis For Rating") the following reasons were given for rati~ng the employee's performance as "fair" rather than "competent", the next highest category: Mr. Brown provides general drafting services to the mcumentaticn Qoup. He has had many years service in this and, while the quality of his work is very goad, the quantity of work produced leaves much to be desired. 'Ihis low production is due mainly to the extensive amount of war-k done for the Lbion. l%is has ranged from 30% of his time to much higher levels and has also created the situation where the time spent on drafting is fragmented to such an extent that an acceptable production level is hardly possible. tUring the past & months, Mr. Brown has taken over other drafting work due to the illness of another employee in the unit. 'his has resulted in some improvement in scheduling Union business with much more time being spent on ministry drafting. In the future, we expect Mr. Erown to continue with the present high quality of work, but to also better schedule Union business and involvement to improve the quantity of production. If well-founded, the reasons set out above appear to justify a performance rating of "fair". On the other hand, if it were shown by the employee that the reasons given are incorrect or unbalanced or distorted in their description of his performance level, it would become necessary to question the rating. The real issue in this case therefore is not whether the rating given was fair or unfair to the employee in all the circumstances. The issue, as we see it, is whether the "Basis For Rating" represents a correct and balanced statement of the services actually performed by the employee, both as to the quality and quantity of his work. From the point of view of the grievor and his Union, the circumstances giving rise to the grievance are most unfortunate. In brief, the complaint against the employee really was that he spent such a large proportion of his time in carrying out his duties as a -4 - Union steward and.officer and as a member of the Occupational Health and Safety Committee at Downsview that the level of performnce, at least as far as the quantity of work was concerned, fell short cf the standard required. In addition the employer asserted that the employee does his work well --- when he is free to do so --- but that he has always done it too slowly. In his own testimony, the griever explained that he is not only a steward, he is also the Unit Steward (elected by 33 other stewards in Local 524 of O.P.S.E.U.) and that he has been appointed as the Grievance Officer for the local. Further, he is a member of the Union's By-laws Committee and also of its Occupat- ional Health and Safety Committee, which works in co-operation with .Management. The O.H. and S. Committee has regular meetings and is concerned with conditions in many different offices'at the large Downsview establishment, and holds periodic meetings to review accidents. It is worthy of mention that there are at Downsview four buildings and at least two garages. Less frequently, the grievor, as a member of the Employment Relations Committee, attends meetings with Management to discuss matters of mutual concern. The griever agrees that all these activities often require absence from his desk. He has testified that he always asked his supervisor, Mr. H. Siersma.for permission to leave, and has never been refused. Late in 1980 the griever had an interview with Chief -5 - Surveyor Gourlay in which his absences were mentioned and also problems which would soon arise due to the lengthy absence on sick leave of another Drafter Tracer, Mr. Nevins. Mr. Gourlay's views Exhibit 5, which he 15, 1980: were confirmed in the following memorandum, sent to the griever under date of December Re: Drafting Work toad For some time now a large prcentage of your total on-the-jpb time has been taken up & Union and Safety Committee activities. This has resulted in the majority of the work in the Drafting Section being assigned to other,staff members, primarily Mr. D. Navins. Since staff has been available, and with a moderate wrk load, we have been able to accceuncdate this situation and, while not entirely satisfactory, it has been manageable. In the near future Mr. Navins will not be available due to medical reasons. in order to .carry out the necessary Ministry work load, it is essential that the majority of your time be applied to your drafting duties. !Ihis will mean that the only Llnicn activities ~rmitted during normal office hours must be confined to those areas provided for under the Collective Agreement. The considerable leaway in the interpretation of these activities in the past, to the mutual benefit of the Ministry and the Union, will no longer be possible due to the coming circumstances of very restricted resources. It is common ground that after Mr. Nevins' departure, probably in January, 1981, Mr. Brown devoted more time to his work. In effect, he was a necessary.substitute and apparently his ncrmal duties were left undone so that he could fill the more urgent re- quirements previously met by Mr. Nevins. -6 - In cross-examination, the griever agreed that he gets telephone calls at his place of work and also that some people come to see him there in connection with Union business. He pointed out that the Ministry had encouraged many of his activities, for example by subsidizing a part-time course taken on his own time with the Toronto Labour Council. He has also taken a course on "assertive- ness" sponsored by the Ministry as well as a first-aid course. The griever conceded that he had twice attempted to pass examinations which would qualify him as a Drafter 1, but failed on both occasions. He insisted that when Mr. Nevins was away, he did all the work assigned, that he knew of nothing being sent out for completion elsewhere and that he had never had any complaints about it. ' Mr. H. Siersma, Documentation Officer, has been the grievor's immediate supervisor for the past six years. He said there is no personal animosity between them and that "we get along quite well." He identified Exhibit 8, an appraisal done in February, 1979. At that time performance was also rated as "fair," the reason given being as follows: "Quality of tracing work is excellent, producticn is below expectation. This employee is very slow in producing a jcb assigned to him." However, the 1980 appraisal, Exhibit 9, rated the employee's performance as "competent" and said: "Quality of tracing work is excellent, production is improving, and expect to see this continue in the future." A curious feature of the latter appraisal -$- is that it was made in April, 1980, when (according tc other evidence) the employee was giving most of his time to activities on behalf of the Union, the Occupational Health and Safety Commit- tee and other committees. It does not seem that Mr:Brown complained about the ratings of 1979 or 1980, but after receipt of the 1981 appraisal he wrote the following letter, Exhibit lO,,to Mr. Siersma: W job appraisal for the 1980-81 evaluation year does mt properly reflect my ~formance and contribution in our office. I strongly object to the inference that my prformance falls short of that of an employee who is qualified and is able to work with minimal super- vision an3 guidance; In the past year the quality and quantity of my work has been very q=d- This appraisal recognizes only my guality. The quantity of my work can be exemplified and substantiated in the fact that for a substantial part of the appraisal year our office has been short- staffed due to illness. The production in our office has not fallen short. lhe extra wark has been assigned to me and all has been completed without problems. It'is totally unacceptable that my involvement in legitimate union activities should be used to. my detriment and bereflected in my wrk performance. These union activities are proper and are, in fact, covered under legislation. In the past year I have contribted to the development of another system of prcduction in one area of my wrk, thus improving the quality as well as helping to alleviate the workload for others in my office.. I take credit for improving the awareness of our office in their obligations under lbe Occupational Health and. Safety Pet, 1978. 'Ihis awareness has improved morale ard the wcrking environment. I am absolutely shocked and deeply hurt at being rated only "fair". I expect I should have been rated "excellent" in that I have per- formed my duties well (over and abve the normal requirements cf the job), and have actively demonstrated innovative skills fcr an improved product. I -a- Mr. F. Lane is the Deputy Chief Surveyor and signed his approval of the 1981 appraisal. At his request Mr. Siersma commen- ted in detail on Mr. Brown's letter of June 3, and in a somewhat defensive tone. After rather strong statements about the proporticn of time devoted to the Unionby the employee he made other points which are more relevant. He suggested that when a person is constantly interrupted by phone calls and when the conversation is recorded in a date book after every call, effective performance cannot be expected. As for quality, he said that a man who had traced for more than 20 years should be "excellent" in doing the work assigned to him. The seven organization charts prepared by the grievor from January to June of 1981, he described as "product- ion below average." He concluded by arguing that the appraisal would have been correct had it shown "marginal" instead of "fair" and that the rating given in this instance was very generous. Mr. Siersma also identified Exhibit 12, a breakdown of hours from April 12, 1980.to May 8, 1981. Tctal hours, including vacation time, sick leave and statutory holidays, is given as 2030. Of that total the Exhibit assigns 52.06% to "OPSEU;" 2.82% to "Health and Safety." Disregarding the vacation, holiday. and sick- leave hours (which should not properly form part of the total) it is evident that more than half of the griever's available time was spent on duties other than those strictly related to his job as a 7 ^ - 9- Drafter Tracer. No attempt has been made to challenge the accuracy of Exhibit 12. Mr. Siersma insisted that although the quality of the griever's work was "very good," he was "too slow." He produced Exhibits 13; 14, and 15, three survey sketches of Provincial roads, which he.said took respectively 59 hours, 214 hours and 5+ hours. By contrast Exhibit 16, another sketch done by an inexperienced summer student,took less than six hours. Mr. Siersma agreed that he had never refused leave to Mr. Brown and that there was no "major problem" until Mr. Nevins had to go on six months' leave of absence Mr. Fred Lane also testified. As Deputy Chief Supervisor, he is the grievor's supervisor "once removed." He described their relations as "fairly cordial." According to him "the basic reason for low production is that he's a slow,worker," but he had concur- red with Mr. Siersma's view that it was "mainly" due to union activity. In cross-examination he said he could neither agree nor disagree with the following memorandum written to him in 1979 by Mr. I.J. Cowan, Director of Personnel, Exhibit 4: I thought it would be appropriate to write to you with respect to Inn Brown's activities as an elected official of the Cntaric Public Service Bnployees Mion. I real .i se that his duties as an O.P.S.E.U. elected official do, at times, require his absence from his normal place of employment ano fully appreciate that this must be inconvenient to you in planning. the work of your unit. -lo- There are, however, certain rights to absence given to elected officials under the Working Conditions Agreement, and it is my opinion that !Znn attempts to keep such absences to a practical minimum. Additionally, I have always found Don to be a most reasonable and cooperative official of the Union and, in many cases, his inter- vention and cooperation have been helpful in resolving emplcye& complaints which might otherwise have grown into full-fledged grievances. While no doubt your section finds his absences in- convenient, I believe that such inconvenience is more than offset by the cooperative and reasonable attitude Don always displays in dealing with problems which involve the Union. Should Don's legitimate Union activities pose any real difficulties for your section I will be pleased to~discuss this matter with you. Mr. Lane had not replied to the Cowan memorandum, but he denied that the problem involved any friction between his office and Personnel. _ The only other witness was Chief Surveyor J.T. Gourlay. He said his contactswith Mr. Brown were "limited." However, when he knew Mr. Nevins would need extended leave, he thought it neces- sary to interview the griever and also issue the memorandum of December 15, 1980, him, Mr. Brown was creased. Neverthe and initialled it. which has already been quoted. According to "co-~operative, '1 and time given to his work in- fless, he agreed with the appraisal of May, 1981, In cross-examination Mr. Gourlay said that until December, 1980, the grievor "spent much time on the Act" --- a - 11 - reference to Occupational Health and Safety. As Chief Surveyor, Mr. Gourlay did not feel qualified to evaluate the usefulness cf such activity to Management. The issue in this case must be determined upon' the known facts and also in the light of "the'governing principles and standards" referred to in Section 18(Z) of the Crown Employees Collective Bargaining Act. The facts seem to us to have been clearly established by the evidence of the grievor himself as well as that of his supervisors. the applicable "principles and standards" are not as clear. The Ministry had certain "Guidelines and Definitions" which are mentioned on the face of the appraisal form, Exhibit 2, where it is said: "Refer to Guidelines'and Defin- itions on reverse before completing." These are in Exhibit 2X, which deals with standards, not principles. The only significant statement under the "Guidelines" heading is as follows: The appraisal process will be successful when two key elements are combined: Appraising on the basis of specific performance, while at the same time remembering that the objective is future or continuing improvement, not punishment for the past. The relevant statement under the heading cf "Definitions." may now be quoted: Q)MPEEi'iT: lhis zone designates a level cf performance which meets the reguirements of the position with normal management support. It is the level for the "Competent" - "Satisfactory" employee. It covers the range of performance from one who satisfactorily meets job standards (the bottom of the zone) to the highly satisfactcry performance of a qualified and experienced employee requiring minimal management support. (the top of the zone) FAIR: This zone designates the employee who is not a relative newcomer and whose performance falls,short of the ccmpatent level. Performance is adequate enough, however to justify retention in the position. As Mr. Cavalluzzo pointed out in his argument, there is little public service jurisprudence on the subject, but both he and Mr. Pettifor cited Scott 23/76 (Swan) particularly at pages 6 and 7. He also cited three promotion cases in the private sector: Canadian General Electric 27 L.A.C. (2d) 18 (Picher); Federal Bolt and Nut (1978) 17 L.A.C. (2d) 292 (O'Shea): Canadian 0 Wirevision (1977) 13 L.A.C. (2d) 259 (Monroe). Counsel for the grievor emphasized that the grievor had done well in the period between January and May, 1981, and submitted that in performing useful labour-management functions he had been caught in a conflict of interest between Personnel and the operations people. For the Employer, Mr. Pettifor said the griever's time spent in Union activity went beyond anything contemplated by the collective agreement. However, the other aspect cf the matter was equally important: the griever had been a very slow wcrker, belcw the standard expected of an experienced Drafter Tracer. - 13 - In a matter such as this, the onus of proof is on the grievor. Unless it can be shown that the appraisal was factually unfounded, or that the rating was given on an irrational or unjust basis, such a grievance cannot succeed. It does not appear that the facts relied on by the Employer were assessed with bias or prejudice. While asserting that work was done too slowly, all the supervisors emphasized (in appraisals as well as in their testimony) .that the quality of the work was good. What gives the case some importance is that the second factor --- perhaps the main factor --- in rating the griever's performance as only "fair" was the large proportion of his time given tolabour-management matters. Certainly, a problem arose, and it came to a head when Mr. Nevins was obliged to go on leave. It is apparent from Mr. Cowan's 1979 letter that a real ccnflict of interest arose between Mr. Cowan's office and that of the Chief Surveyor, where it was necessary to produce a certain volume of work. This was a problem which ought tc have been foreseen and solved at some time between 1979 and 1980. However, the failure of the parties to solve it does not render the 1981 appraisal invalid. We do not think this is a matter on which the Scard can I - 14 - adjudicate. If labour-management relations require the attenticn of an employee most of the time, then it is for the parties,- the Employer and the Union to discover a closer and better understand- ing which would be fair to both the employee and the operational offices which must rely on his services if they are to meet their obligations. In this case, we think the griever is'the victim cf the parties' failure to grapple with the problem. In the circumstances and for the reascns given, the grievance cannot succeed and must be dismissed. Dated at Toronto this 28rd day of July, 1982. (Addendum to follow). J . XcXanus :Xeriber