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HomeMy WebLinkAbout1982-0122.Millar.82-11-09122182 IN THE MATTER OF AN ARBITRATION Under THE CROhT E!iZLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OLBEU (M. N. Millar) - And - Grievor The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer R.L. Kennedy Vice Chairman T.J. Kearney Member B. Lanigan Member For the Grievor: G. Surdykowski, Counsel Golden, Levinson For the Employer: W.&l. Kenny, Counsel Hicks, Xorley, Hamilton, Stewart & Storie Hearing: October 15, 1982 i. ,. . -2- AWARD On January 19, 1982 the Employer issued a job-posting notice for the position of Warehouse Foreman 2 at ~the Kipling Warehouse. The position was described in the following terns: The person selected must be familiar with all phases of warehousing; e.g. shipping, domestic and import receival, act as dock and floor foreman, and deal with inter-warehouse transfers. These different phases of warehousing would be rotated on a monthly basis, ~including turns taken on the afternoon shift. The ability to make decisions with minimal supervision a definite asset. The Foreman 2 position is the highest paid classification within the bargaining unit. The.Grievor was one of ten candidates for the job and of the candidates, in terms of seniority, the Grievor was the second most senior. The successful candidate for the position had less seniority than the Grievor, and the grievance in this.matter alleges that the appointment of the junior employee was contrary to the provisions of Article 16.6(a of the Collective Agreement. The settlement requested in the grievance is that the Grievor be appointed to the position of Foreman 2 and be compensated for monies lost together with interest thereon resulting from the Employer's failure to appoint the Grievor to the position. We were advised by Counsel for the Union that the successful applicant had orally been advised as to the date of the hearing and his right to be present ,and that he had indicated to his steward he did not propose to attend. In addition, we were advised that the one candidate. for the position senior to the Grievor was not asserting a claim to the job. -3- I I The Article of the Collective Agreement alleged in the grievance to have been breached by the Employer provides as follows: 16.6(a) Where employees are being considered for promotion, length of service from appointment date will be the determining factor provided the employee is qualified to do the job. Based on the foregoing language, it was common ground between the parties that, if the Grievor established he was qualified to perform the job, he was entitled to it irrespective of the relative abilities of any other candidates for the position. It was the position of the Employer that the Grievor was not so qualified. The warehousing procedures at the Kipling Warehouse do not appear to be excessively complex. Merchandise is received from various sources, both domestic and imported, and is stored until such time as it is required to be shipped to the various retail stores operated by the Employer. There are approximately 115 employees in the Warehouse. and there are presently 11 employees of the rank of Foreman 2. Customarily a Foreman 2 will be in charge of each of the areas of domestic receiving, import receiving, examination department, machine shop and assisting the shipper. In addition, others of the rank of Foreman 2 supervise the employees who are responsible for making up the orders of merchandise to be sent to the various stores. In that function, the Foreman will supervise approximately 25 employees comprising checkers, assemblers and fork-lift operators. The Foreman will distribute to his employees order - 4- forms which have been given to him and he must then see that the employees assemble the orders and get them to the shipping department within the requ,isite amount of time. Those orders vary in size from 300 cases to 8OO'cases and in an average shift, some 30 to 40 orders will be filled. In addition a Foreman 2 will on occasion have to go to other privately owned warehouses where the employer maintains stocks of merchandise in order to deal with shipping and receiving functions at those locations. On those occasions the Foreman would be the Employer's representative at the site and would have a general responsibility to see that the employees of the warehouse owner do the,work properly. The Grievor's employment commenced November 29, 1971 and he has been employed in the Kipling Warehouse since 1976 in the capacity of a Warehouseman. Throughout that period of time,. he obviousJy has performed the various functions which, in the capacity of a Foreman, he would be required to supervise. It would appear from the evidence that throughout,that period, he has been an average employee with no history of any employment problems. His annual rating report, dated April 11, 1980,‘was the only one filed on the hearing -nd the form of that report is that under 12 headings an employee is rated as either very good, good, average or poor. That particular report for the Grievor was completed by his Foreman with four goods and eight averages. The supervisor rated the Grievor with five goods and seven averages. In the area of comments, the report indicated that -5- the Grievor was a good worker with little initiative, and that he was doing a satisfactory job as a checker. The Grievor in his evidence described the nature of the Foreman's job and that description was quite consistent with the evidence of management witnesses. The point of divergence in the evidence related to what is substantially an opinion as to whether or not the Grievor was qualified to do those duties, it certainly being the opinion of the Grievor that he was. It is clear from the evidence of management witnesses that then selection- was made carefully and conscientiously and that in making that selection, management had in mind the requirements of Article 16.6(a). 1t was the unanimous opinion of those making the decision, and of the Foreman members of the bargaining unit who were also consulted by management, that the' Grievor was not qualified to be a Foreman. Evidence was given by the General Foreman of Kipling Warehouse and he is the person to whom Foremen report. He has been some six years in the job and during that time had opportunity to observe the Grievor in his work on a daily basis. He has, as have all the Foremen, come up through the ranks, performing the jobs of assembler, checker and fork-lift operator and then progressed into the supervisory work. It was his view that the Grievor did not possess the necessary leadership ability and initiative to perform as a Foreman. He expressed the opinion that when the' Grievor wanted to apply himself, he was very good but that he -6- did not apply himse.lf very often. The General Foreman expressed the view that the Grievor made no effort to give anything extra to the job and made no contribution to assisting new assemblers. These views were shared by the Supervisor of the Warehouse who also participated in the selection process, and it was the Supervisor's evidence that he would walk the Warehouse floor on a daily basis. In the course of those walks, he regularly observed the Grievor in the course of his employment duties. In addition to the two representatives of management, two of the incumbent Foremen were subpoenaed.by the Employer to give evidence. They had both been consulted by management at the time of the selection process and each expressed the view that the Grievor was not qualified to do the job. One of them had been involved for a'period of two weeks in September of 1981, in giving the Grievor training in the duties and responsibilities of a Foreman,, and it was his opinion that during that two-week period, the Grievor did not catch on to the nature of the job. It was his view that while the Griever's, paperwork was adequate, he made no effort to do any of the functions on his own. It was that Foreman's view that once an employee had been shown what was to be done then, if the employee considered that he was capable of being a Foreman, he would have the gumption to get.up and go and do it. Similar opinions were expressed by the other Foreman who was called by the Company. Both those Foremen had, over a period of -7- several years known the Grievor and been responsible for supervising his work and indeed one of the Foremen had worked 'with the Grievor prior to them both being moved to the Kipling Warehouse. Based on the totality of the evidence which we have heard, it is our view that the Union has not shown that the, Employer was in breach,of the Collective Agreement in the circumstances of this job posting and selection. It is clear that the reason for deciding the Grievor lacked qualification related to the aspects of leadership and initiative and we would find these to be legitimate qualification requirements of the job in question. It is quite true that the procedures are not complex and that the Grievor is familiar with the day-to-day' functions which are to be supervised. However it is inherent in the Foreman position that something beyond the mere ability to do the work is required. A Foreman supervises upwards of 25 employees on a shift and must be able to respond to the unexpected and the unanticipated problems which will inevitably arise in any work relationship. The evidence established that during busy periods an afternoon shift is also run in the Warehouse and on that shift the Foreman may be the only senior supervisory person present in the Warehouse. We are satisfied on the evidence that the position of Foreman does require additional qualities in the areas of leadership and'initiative - 0 - and that management's consideration of these aspects was proper in making the selection process. There has been no suggestion of arbitrariness or bad faith, and those participating in the decision-making process were familiar with the Grievor and his work record. On the aspect of the scope of arbitral review in such circumstances, each Counsel gave to us a highly competent and complete review of the authorities in that area. Based on the evidence however, we do not find.it necessary to comment in detail on those arguments as are expressed in Re: Great Atlantic and Pacific Company of Canada Limited et al (19761, 76 .CLLC 332 (Ont. Div. Ct.) and the myriad of cases that have followed upon the A and P case. Even if we accept that the arbitral'standard is that the Employer's decision has to be correct, or even if we were to hold that we are entitled to substitute our judgment for the judgment of management, we must still exercise thatfunction based on the evidence which has been presented on the hearing. In that evidence, the Grievor was the only witness expressing the opinion that he did have the qualifications to perform the job. Four other witnesses, two of them members of the bargaining unit, three of whom had had hands-on experience in the Foreman job, and all of'whom were quite familiar with the Griever on a day-to-day basis, expressed the views that the Grievor did not possess the initiative and leadership abilities to perform the job. Based on that' evidence..there is no reasonable conclusion to be reached other i -9- than that the Employer has not been shown to have been incorrect or to have acted in any way inconsitent with the requirements set out in the Collective Agreement. The grievance must, therefore, be dismissed. DATED at Toronto, this 9th day of November, 1982. '11 dissent" (see attached) T.J. Kearney Member B. Lanigan Member 6:2100 6:3000 6:3240 DISSENT I have now had an opportunity to review the award of the majority, and regret to advise that I must dissent therefrom. In my opinion, the majority goes beyond the jurisdiction in deciding that the grievor lacked qualification related to the aspects of leadership and initiative when these qualifications were not delineated in the job-posting on January 19, 1982, for the position of Warehouse Foreman 2. The majority award noted at page 7 that the grievor possessed the advertised qualifications.when it stated: "It is quite true that the procedures are not complex and that the grievor is familiar with the day-to-day functions which are to be supervised". Apparently the majority hinges its leadership and initiative qualification requirements to "the ability to make decisions with minimal supervision a definite asset" as described in the job-posting.' However, the language of 16.6(a) clearly places seniority in the forefront as the determining factor for promotion provided the employee is qualified. Minimal supervision is an asset w not a mandatory qualification. The grievor met the stated qualifications and should have been given the promotion. - 2 - It was open to the Employer by virtue of clause 16.10 to assess the ability to make decisions with minimal supervision or indeed for that matter the "inherent" aspects of leadership and initiative qualifications during the three month "trial period". All of which is respectfully submitted. OTTAWA, ONTARIO OCTOBER 29, 1982