GSB#0968/00
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
United Steelworkers of America, District 6
(Archer)
Grievor
-and-
The Crown in Right of Ontario
(Ottawa Congress Centre)
Employer
BEFORE Deborah J.D. Leighton Vice-Chair
FOR THE GRIEVOR Rob Henderson Staff Representative United Steelworkers of America, District 6
FOR THE EMPLOYER Jock Climie Counsel Emond/Harnden Barristers & Solicitors
HEARING January 30, 2001; May 8, 2001; May 9, 2001.
On August 21, 2000 Ms. Debbie Archer grieved that she had been unfairly denied a position as a rotational security guard. At the time she filed her grievance Ms. Archer was a part-time security guard for the Ottawa Congress Centre (OCC). In February of 2001, after the first day of hearing on January 30, 2001, she was advanced by entitlement, pursuant to the collective agreement between the parties, to a full-time non-rotational security guard position.
The union took the position that the employer had wrongly denied Ms. Archer the full-time rotational position, when they denied the grievor an interview for the position on the basis that she did not meet the educational requirements for the position. The union’s position is that the educational requirement is not necessary and that Ms. Archer has the skills and ability to do the job.
The employer's position is that the union is estopped from objecting to the educational requirements for the position, having acquiesced to the standard in 1997. Further, the employer's position is that it is within its management rights to determine job requirements, in this case amongst other requirements a college security program or equivalent (such as a related university program), and that Ms. Archer did not have this requirement. In addition, the employer took the position that even if there was no educational requirement, the grievor did not possess the necessary skills and abilities to do the job.
The Evidence
Much of the evidence is not in dispute. Both union and employer witnesses testified to the history of the security service at OCC. They agreed that in the early 1990s security at OCC was slack or slipshod. The employer hired a consultant, Mr. Richard Malloch, to review security and make recommendations to management to improve security practices. Mr. Malloch made numerous recommendations, which were implemented, including establishing full-time security guards. Previously the OCC used only part-time workers for security. These full-time security guards are scheduled on a rotational basis, so that there is always one rotational guard on duty, except for 12 hours in the week. The system was in place January 1, 1995 when the parties first collective agreement went into effect.
Mr. Malloch introduced numerous changes in security procedures; most are not important to this decision. Mr. Brent Caldwell, a rotational guard and long-standing employee of the OCC, testified that the changes to security at OCC implemented as a result of Mr. Malloch’s recommendations transformed the service into a professional one. Ms. Fiona Livingstone, the OCC controller for the last 11.5 years, testified that the changes restored management's trust in the security service. Before the changes she testified there was a perception by management that if security guards had keys to a room, the room was not secure.
Amongst Mr. Malloch’s recommendations to improve the security at OCC was the recommendation that all newly hired rotational guards be required to have post-secondary education, preferably college or university, in law and security. Management’s evidence is that this change improved the service. The employer recognises that people with this qualification tend to use the placement at OCC as a stepping stone to a job in police work or something related and therefore do not tend to stay long in the position. Ms. Livingstone testified that this is a trade-off management is willing to make in order to have skilled, educated people working for them as security guards. The union witness disagreed that this education is required to do the job. Mr. Caldwell testified that it was not necessary. Indeed it was his evidence that people without the educational qualification were better employees. Mr. Caldwell's view is that it was Mr. Malloch’s other recommendations that have led to improved security practices at OCC. Mr. Caldwell was hired before the qualification was required and he does not have the requisite education. Evidence of the employer was Mr. Caldwell had learned on the job over many years and that he had the skills and ability to do the job.
The employer and union both provided evidence of what the job of a rotational guard entails. For the most part it is in accord. The employer's evidence was that security guards operate in a fish bowl, dealing with a variety of issues and people from diverse backgrounds. Security guards may have to deal with violent incidents such as fights on one end of the spectrum and parking in fractions on the other end. Events at the OCC include receptions of foreign dignitaries, often requiring the highest level of security.
Mr. Paul Keogh, operations manager, testified that a rotational guard must be someone who can interact with very different people, quickly assess and respect the needs of the client and the security issue. The rotational guard must use good judgement in deciding how to exercise his or her discretion. If this is not done well it may affect whether a client returns to the OCC. Since the OCC is no longer funded by the Ontario government, it is imperative that the Centre operate as a business and make money to survive.
Mr. Caldwell also testified for the union that a majority of security work at OCC was public relations. Mr. Caldwell said that it was the floor officer who had the most contact with the public. The floor officer is most often a part-time casual or full-time non-rotational guard. He stated that it was the rotational guard. usually assigned to the control booth, and has the ultimate responsibility for how incidents are handled, unless the security supervisor or director of operations is in the building.
Ms. Archer testified that she has worked at OCC for approximately 2.5 years. She applied for the rotational officer position in April 2000 when a vacancy occurred before there was a posting. She applied again in August when the position was posted. The grievor testified that she had no response to her application until August when Mr. Keogh told her that she did not have the required education for the position. No other reason for rejecting her application was given at the time. Ms. Archer said that before August 2000 she had never been disciplined nor had management raised performance concerns with her.
On cross examination Ms. Archer responded to the question of whether she felt she was qualified for the job by saying that if she had the law and security diploma she would not stay in security – she would get a job as a policewoman. She testified that courses in law and security would not help her do the job, because she was already doing it.
Ms. Archer said initially that the floor guard has the ultimate responsibility to handle an incident not the rotational guard on duty. Then she stated that she does not check with the rotational guard if she thinks that she can handle the situation. When pressed on the point she acknowledged that if an incident involves a “grey area, then the rotational guard has the final say.”
Ms Livingstone testified for the employer that the vacant rotational guard’s position was first posted in April 2000, but management were not able to finish the job competition because of lack of management personnel. The job was posted again in August 2000. According to Mr. Keogh the employer received twenty resumes. Roy Waterman, security manager, screened the resumes and interviewed the applicants. Any applicant without post-secondary education was automatically screened to part-time causal. Mrs. Archer did not forward a resume, but contacted Mr. Keogh to see if she could get the job. He testified that whenever Ms. Archer expressed an interest in the rotational guard position, he forwarded the request to Ms. Livingstone. Ms. Livingstone indicated to him that Ms. Archer did not meet the education requirement.
Mr. Keogh testified that Ms. Archer did not have the skills and ability necessary for the position. He stated that the candidates with post-secondary education showed confidence, good communication skills and ability to problem solve. He acknowledged that Ms. Archer had taken on the position briefly when they were very short staffed and he described her as a good team player. However, it was his evidence that Ms. Archer has a tendency to judge things too quickly without enough information. She can be abrupt when she speaks on the radio. On occasion she has used inappropriate or unprofessional language as evidenced in an e-mail to him on April 3, 2000:
Brent, Mary and myself so far, maybe more security does not have access to the incident reports. After the computer went tits up last time, we have no access. And nothing was done.
Having known Ms. Archer for two years, he was of the view that she did not have the professionalism that was required in the position. On cross-examination Mr. Keogh acknowledged that a person with a sociology degree from a university might not have knowledge of the criminal code or police operations.
Decision
The first issue to be addressed is whether the union is estopped from claiming that the employer cannot require that applicants for the rotational guard position have the requisite post-secondary education. Counsel for the employer, Jock Climie, argued that all the elements necessary to establish estoppal had been met. There was a representation by the union that they had accepted the credential. Ms. Livingstone wrote to Mr. Rob Henderson, the union representative on Feb 12, 1997 asking for confirmation of the union’s acceptance. She had been informed by Mr. Malloch that the union had agreed to the educational requirement. However, Mr. Henderson did not confirm this in writing. He did write to Ms. Livingstone withdrawing an individual grievance which raised the issue of the education requirement “without prejudice or precedent”. His silence was evidence of acquiescence in counsel’s submission. The employer relied on this acquiescence to hire many rotational guards since 1997.
I am persuaded by the union’s submission on this issue that the evidence does not support a finding that the union is estopped in grieving this issue now. The evidence that the union had agreed to the education requirement was hearsay. Moreover, Ms. Livingstone’s evidence on cross-examination candidly acknowledged that when she received the letter withdrawing the 1997 grievance with the words “without prejudice and precedent,” she understood that the union was reserving its right to raise the issue again.
The second issue to be addressed is whether evidence given by Mr. Keogh about the employer’s view of Ms. Archer’s skills and abilities should be considered by the board. The union’s representative, Mr. Henderson, argued that contrary to the rule in Browne v. Dunn nothing about writing inappropriate interdepartmental memos was put to Ms. Archer on cross-examination. He argued further that the grievor’s testimony that she was a good employee and deserved the promotion was not challenged in her cross-examination. Mr. Henderson cited Sunbeam Residential Development Centre and London and District Service Workers Union, Local 220 1996 CanLII 20292 (ON LA), 54 LAC (4th) 54 (Dissanayake) in support of this submission. Finally, he argued that if Mr. Keogh’s opinion is that Ms. Archer’s skills and abilities are insufficient, as opinion evidence it should be given no weight.
Counsel for the employer argued that the rule in Browne v. Dunn does not require every element of the employer’s case to be put to the grievor in cross-examination. Further, the union had notice that the issue of Ms. Archer’s lack of skills and ability to do the job was central to the employer’s case. It was clearly stated in the employer’s opening statement.
After reviewing Brown v Dunne and a passage from Gorsky, Evidence and Procedure in Canadian Arbitration’s, in Sunbeam Residential (supra). Arbitrator Dissanayake held:
… the rule requires that unless it is obvious to the witness that his testimony on a particular point is being challenged, the cross-examiner must indicate the intention to challenge the witness’ credibility by putting to the witness some questions. As Lord Herschell stated there is an obligation “where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged.
It is clear from the emphasised portions of the quotations from Browne v. Dunn and from the textbook respectively, that the rule was not intended to be an absolute one. Where it is clear to a witness from the nature of the case itself or from the nature of the cross-examination that his testimony on a particular point is being called into question, the cross-examiner is not required to use any specific words to convey that to the witness.
After carefully reviewing the submissions and the notes of Ms. Archer’s cross-examination, I am satisfied that the rule in Browne v. Dunn has not been offended. First, whether Ms. Archer has the skill and ability to do this position was a key issue between the parties. The union’s position was that she is qualified to do the job. The employer’s position is that she lacks the skills and ability for the position. Further, counsel for the employer specifically stated to Ms. Archer “You believe you are qualified for the job.” Her answer was that if she had the requisite education for the job, she would become a policewoman. She was specifically asked about whether a communications course at a community college would improve her ability to communicate. Thus from the nature of the case and the nature of the cross examination it is clear that Ms. Archer’s evidence that she had the skills and ability to do the rotational guard position was going to be challenged by the employer’s evidence. Finally, Mr. Keogh’s evidence, while contradicting Ms. Archer’s, does not challenge the truthfulness of her evidence. It was clear it was her view that she is a good employee and could do the job. Mr. Keogh’s evidence was otherwise. But he did not suggest that she was a bad employee – only that she was not qualified to do the rotational guard position.
With regard to the union’s opinion evidence argument, I am not persuaded that the evidence here should be given no weight. A central issue between the parties is whether Ms. Archer has the skills and ability to do the rotational guard position. It is within the employer’s management rights to assess employees’ skills and abilities to do a job and therefore the board can consider the evidence of their opinion here.
Submissions on the Merits
There are two central issues to be decided on the merits of this case. The first is whether the requirement for applicants for the rotational guard to have post-secondary education is necessary to the job and therefore within management’s rights to require. The second issue is whether Ms. Archer has the qualifications, skills and ability to do the position.
Article 3,01(d) of the collective agreement between the parties provides:
The Union recognises and acknowledges that subject to the terms of the collective agreement, the management and direction of the work force is reserved to the Employer including the right to:… (d) hire, classify, transfer, promote, demote, layoff, or recall employees or retire employees in its discretion at the retirement age of sixty-five (65)…
Article 13.02(a) selection by seniority provides:
Vacancies and new positions shall be filled on the basis of seniority provided the senior applicant possesses the necessary qualifications, skill and ability to perform the job.
The union’s submission on this issue was that rotational guards do not require post-secondary education to do the position, that such education would be beneficial but it is not necessary. The employer’s policy on credentialism is clear that requiring a credential is only valid when necessary. In the union’s submission security is not a highly skilled job – no technical expertise is necessary. Article 13.02 provides that vacancies go to the most senior person provided he/she has the necessary qualifications, skills and abilities. Mr. Henderson submitted that since the qualification is not necessary and the grievor has the necessary skills and abilities she should be awarded the job and compensated for lost wages and benefits. The union relied on Metropolitan General Hospital and ONA, Loc. 44 1990 CanLII 12699 (ON LA), 17 L.A.C. (4th) 57 (Roberts) and Sudbury General Hospital of Immaculate Heart of Mary and C.U.P.E. Loc. 1023 1990 CanLII 12763 (ON LA), 16 L.A.C. (4th) 172 (Craven).
Counsel for the employer argued that the employer has the right to manage and set job requirements as it sees fit. It is the employer’s submission that given the seniority clause in the parties’ collective agreement the issue for the board is whether the requirement bears a reasonable relationship to the work to be done. Mr. Climie argued that the evidence supported a conclusion that there is a rational connection between the education requirement and the job. Counsel argued further that the employer required the better communication skills and judgement that generally comes with post-secondary education. Counsel submitted that rotational guards have greater responsibility than floor guards and they get paid more as a result.
The employer also took the position that Ms. Archer did not have the requisite education, skills and ability to do the job. Therefore the employer asked for the grievance to be dismissed. In the alternative, if the board was to find only that the qualification for post-secondary education was not necessary, counsel for the employer argued that the grievor would be entitled to an interview. It would be up to the employer to assess her skills and ability. The employer relied on Simon Fraser University and C.U.P.E., Loc. 3338 1997 CanLII 25135 (BC LA), 66 L.A.C. (4th) 196 (Moore) in support of its submission.
Decision on the Merits
The first issue to be addressed is whether the requirement of post-secondary education for rotational guard positions is necessary in order to do the job. The evidence is clear that the employer began in 1995 to make changes to security at OCC that would make it a professional, effective unit. As part of those changes the position of fulltime rotational guard was established. This was a significant change in how the employer provided security. The following requirements for rotational guards were established by the employer:
Full-time rotational guard requirements:
Education – two year college – Law and Security program (or equivalent, i.e., University Criminology etc)
Experience – minimum of two years experience in a similar service oriented position
Skills – strong communication ability, effective decision making, ability to provide leadership to part-time guards
Training – card access system, maintenance systems, First Aid, fire alarm system, among some of the additional training the fulltime rotational guards receive
There is a difference in standard and expectation between the fulltime rotational staff and the other security guards. With the additional education, experience, and skills they possess and the additional training provided, it is expected that the rotational guards will be able to make decisions and provide guidance to other security guards in absence of the security supervisor.
Of particular note is the employer’s expectation that rotational guards would be able to “make decisions and provide guidance to other security guards” as required. The rotational guards at the OCC have greater responsibility than non-rotational guards. At times, the rotational guard will be the final authority on how to handle a security issue. Given the potentially serious kinds of security issues that may occur at the OCC, it is reasonable for the employer to want to hire guards with “strong communication” skills and “effective decision making ability.” It was the employer’s evidence that generally candidates with post-secondary education possess these skills. It is also clear from the evidence that education alone is not enough: candidates with education who have insufficient communication and decision making skills will not be hired into the rotational guard position. I am persuaded that while education in law and security, or equivalent may tend to indicate candidates with the requisite skills for the job, the requisite education is not necessary to be able to do the job. Mr. Keogh acknowledged in cross-examination that a candidate with a sociology degree would be considered as an applicant, even though the person may have none of the comparable college courses from law and security. For example, the person may have no education on police methods or the criminal code. It is clear from the employer’s evidence that it is good communication skills and good judgement that are necessary to the position, not the requisite education, though it is also evident that this kind of education may help to identify candidates with superior communication skills and judgement.
Arbitrator Teplitsky’s, reasoning cited in Metropolitan General Hospital, is instructive.
A qualified applicant in my opinion, is one who is competent to perform the work required by the classification. Although educational accomplishments may assist in determining whose qualifications are superior in the context of the contest which is established by art. 10, that is quite different from asserting that management can establish some level of educational attainment as a condition that must be complied with prior to obtaining a promotion. (St Catherine’s General Hospital and S.E.U., Loc. 204, 13. L.A.C. 3d 378)
Arbitrator Teplitsky went on to state that if the collective agreement between the parties explicitly gave the employer the right to establish qualifications for a particular job position then an arbitrator, in the absence of bad faith, could not overturn the decision of management even if the person was capable of performing the job. There is no such language in the collective agreement between the parties before me. Indeed the language is clear that the most senior person is entitled to the job provided he/she has the “necessary” qualifications, skill and ability” to do the job. Thus while the requirement of post-secondary education in law and enforcement or equivalent may assist a candidate in being successful, it should not be used as a screening device to exclude candidates, who might otherwise have the skills and ability to do the job. This finding is also consistent with the employer’s policy on credentialism.
The second issue, then, is whether the grievor has the skill and ability to do the job. The employer’s evidence was clear that good communication skills, and good judgement were essential to the rotational guard position. Further, rotational guards have greater responsibility and at times are required to supervise non-rotational and part-time guards. It is well established that the onus of proving that the grievor has the requisite skill and ability rests with the union.
Having carefully considered the evidence on this issue, I am persuaded that the union has not shown on the balance of probabilities that Ms. Archer has the skill and ability to do the job. The union’s argument on this was chiefly that Ms. Archer was doing the job. However, that argument seemed to be based on Ms. Archer’s view that the job of the non-rotational officer was essentially the same as the rotational officer, and that she had filled in for a rotational officer for a few days when the service was short-handed. No evidence was tendered to support a finding that Ms. Archer has good communication skills and good judgement. Without such evidence I find I must defer to management’s view that Ms. Archer was not qualified for the position.
For the reasons noted above the grievance is hereby dismissed.
Dated at Toronto, this 24th day of September 2001.