GSB# 2003-3775
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
United Steelworkers of America (Archer)
Union
- and -
The Crown in Right of Ontario (Ottawa Congress Centre)
Employer
BEFORE
Belinda Kirkwood
Vice-Chair
FOR THE UNION
Jock Climie Emond Harnden LLP Barristers and Solicitors
FOR THE EMPLOYER
Rob Henderson Staff Representative United Steelworkers of America
HEARING
July 28 and October 26, 2004; March 15, 2005.
Decision
The grievor is presently a full-time non-rotational security guard at the Ottawa Congress Centre (OCC). She applied for and was denied the position of full time rotational security guard which position was posted on November 14, 2003. After assessing the grievor’s written responses to questions directed to the applicants and then meeting with the grievor, the employer found that the grievor did not have the qualifications, skills and abilities that are necessary to perform the duties and responsibilities of the position as she did not have the leadership and communication skills and judgment that the employer required.
Employer counsel claimed that this arbitration has already been determined three years ago by Vice-Chair Leighton and submitted that the union is attempting to re-litigate the issue. Three years ago the grievor had applied for the position, while she was a part-time rotational security guard, and the employer denied the grievor an interview on the basis that she did not have the requisite education and skills and abilities to perform the job. The matter was grieved and Vice-Chair Leighton denied the grievance. Vice-Chair Leighton found that a post secondary education in law enforcement and security was not required as the employer had demanded, but accepted the employer’s position that leadership, good communication skills, and good judgment were necessary prerequisites for the position. Vice-Chair Leighton found that the union did not establish that the grievor had the skills and ability to perform the job. No evidence had been tendered that the grievor had good communication skills and good judgment.
In the arbitration before Vice-Chair Leighton, the union had relied on its position that the role of the non-rotational officer was essentially the same as a rotational officer, and that the grievor’s experience as a non-rotational officer provided her the skill and ability to do the rotational officer’s job, and as well as her experience gained in filling in for a rotational officer when the service was short-handed. (United Steelworkers of America, District 6/Archer and The Crown in Right of Ontario/Ottawa Congress Centre, GSB #0968/00 (Leighton) (September 24, 2001)).
In the arbitration before me, employer counsel, relying on Re Main Ouvertes – Open Hands Inc. and Ontario Public Service Employees Union, Local 458 1996 CanLII 20283 (ON LA), [1996], 54 L.A.C. (4th) 217 (Roach) and Federated Co-operatives Ltd. and I.W.A. – Canada, Loc l 1-417 1996 CanLII 20328 (BC LA), [1996] 59 L.A.C. (4th 30 (McPhillips), claimed, on the basis of res judicata and issue estoppel, that the union could not continue to re-litigate the issues that had been determined by Vice-Chair Leighton. Employer counsel claimed that this board has heard the same submissions and evidence as in the earlier arbitration, and accordingly res judicata or issue estoppel prevents the re-litigation of these matters. Employer counsel submitted that the union cannot bring forward arbitrations each time submitting that the grievor can do the job. In any event, employer counsel submitted, at most, this board could only rely on new evidence of skills and abilities that the grievor had obtained since the last arbitration. On this issue, employer counsel submitted, the union did not show that the grievor had taken steps to improve her skills and abilities, but relied only on assertions by the grievor, and assertions by the same witnesses as had been called in the previous arbitration, that she could do the job.
Employer counsel submitted that in the ordinary exercise of management rights, employers may determine what specific qualifications are necessary for a particular job and the relative weight for each of the chosen qualifications. In particular, where leadership, interpersonal skills and communication skills are required, management is in the best position to assess those qualities (Sun-Rype Products Ltd. and Teamsters, Local Union 213 (Maddocks grievance) [2002 B.C.C.A.A.A. No 135 Award no. A-107/02). The only time that an arbitrator should not honour the employer’s determination, is, if there is bad faith to manipulate the purported job qualifications to subvert the just claim of the employee, or if the chosen requirements do not bear a reasonable relationship to the work to be done (Reynolds Aluminum Co. of Canada LTD and International Molders and Allied Workers Union, Local 28 1974 CanLII 2380 (ON LA), [1974] 5 L.A.C. (2d) 251 (Schiff)(General Dynamics Canada and Independent Union of Defence Contractors (Team Grievance) [2004] C.L.A.D. No. 4 (Hornung)). Employer counsel submitted that there is no basis to overturn the employer’s decision.
The union representative claimed that res judicata and issue estoppel are not applicable as the matter before this board is not the same matter as was before Vice-Chair Leighton, as there is a different collective agreement and a different job posting, i.e. the facts are different. The union did not dispute the findings of Vice-Chair Leighton, but submitted that the grievor has had the opportunity to improve upon a number of skills which had been identified as lacking, and now has the necessary skills and abilities. The union representative submitted that the grievor should be awarded the position as she has now met the conditions set out in Article 13.02 of the collective agreement, which states:
13.02 (a) 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 standard to be applied is not of perfection, but whether the grievor could reasonably perform the duties and responsibilities of the job.
The union representative further submitted that as found in Deltassist Community Services Society and I.C.T.U., Loc. 1 1997 CanLII 25099 (BC LA), [1997] 62, L.A.C. (4th) 185 (Germaine) performing the position by back filling the position provides the skills and abilities to perform the job. As the grievor has been a non-rotational guard, whose duties are essentially the same as a rotational guard and has filled in for the position of non-rotational guard, the grievor has the qualifications, skills and abilities to reach the threshold required to obtain the position pursuant to Article 13.02 of the collective agreement.
The first issue to be dealt with is whether this grievance is arbitrable and if so what is the scope of the grievance.
As stated in Re Federated Co-operatives Ltd. and I.W.A. supra, “A judgment operates as a comprehensive declaration of the rights of all the parties in respect of all the matters in issue.” Res judicata and issue estoppel prevents parties from re-litigating the same causes of action or issues in a subsequent arbitration, by preventing the parties from bringing forward at a subsequent hearing for determination, the same actions or issues which have been previously determined, or different facts or issues that could have properly been dealt with in the first hearing of the matter. It thereby prevents the parties from splitting their case between different arbitrations and fragmenting the litigation and forces the parties to present their case fully on the first occasion, making all possible claims, assertions and relief and providing a full defence to the issues raised. By not allowing the re-litigation of causes of action and issues provides a final determination of the dispute and allows the parties to move forward. As Arbitrator McPhillips states at page 9 of Federated Co-operatives Ltd., supra, parties must not attempt to conduct lawsuits by instalment, or as Sopinka, Lederman and Bryant observe in The Law of Evidence in Canada (Toronto: Butterworths, 1992), that “in keeping with the general principle that a plaintiff should not conduct litigation of a matter by instalments, the preferable approach is to require all legal theories arising out of the same facts to be put forward in one proceeding” (pp. 1000-1001)
This case however, is not a matter of re-litigating the facts or issues or litigating the matter by instalments.
On first blush it appears that the union is re-litigating the same cause of action and the same issue, as the union is asserting for a second time that the grievor, who is a full time rotational security guard, is seeking the position of a non-rotational security guard, which is the same claim as was before Vice-Chair Leighton. In this case the parties are the same, the grievor is the same, the contractual basis upon which the issue is based, Article 13.02, is the same, and the issue whether the grievor has the necessary qualifications, skills and abilities to perform the job, is the same. However, the facts and circumstances upon which this issue is based are different as this grievance relates to a different job posting and three years have interceded between the postings. It would defy common sense to preclude an employee from seeking the same position at a later time on a different posting, as in the intervening time that employee could have obtained the necessary qualifications and abilities and so become qualified. This case is different from the Open Hands case, supra, which prevented the re-litigation of a matter which was based upon different sections of a collective agreement, than the original arbitration, as those sections could have been relied upon in the first instance.
The previous decision of Vice-Chair Leighton however, can be relied upon as determining the facts and issues as of 2001. Although issue estoppel and res judicata have not been rigidly applied in labour arbitration, arbitral deference is given to prior awards between the same parties, as it prevents the possibility of inconsistent results in subsequent proceedings involving essentially the same issues. (Open Hands, supra, and Federated Co-operatives Ltd, supra). Consistency of decisions becomes particularly important for the Grievance Settlement Board which has different members sitting on different boards of arbitration but is considered to be one board, and arbitrates various issues between the same parties. Therefore the Leighton decision stands for a judgement on the facts and the issues as it existed in 2001.
As Vice-Chair Leighton found that the grievor did not have the necessary skills and abilities necessary for the position at that time, the scope of this arbitration is to determine whether in the interceding three years that the grievor has now acquired such qualifications, skills and abilities pursuant to Article 13.02 of the collective agreement. The grievor’s seniority was not an issue.
The nature of this clause is what has become known as a “threshold” or a “sufficient ability” clause, which as stated in Brown & Beatty p. 6:3210 that it:
purports to award a job to the senior employee having the requisite ability to perform it, the senior employee claiming the position will be entitled to it if he affirmatively proves that he can perform the job, even though he might not be able to perform it as well as a less senior employee. By this type of clause, the evaluation that is made of the grievor’s qualifications is against the legitimate requirements of the job. The senior employee will not be required to prove, nor will the employer be entitled to insist, that he could perform the job to perfection. Rather, reasonability ability to perform the required task is the benchmark for assessing the ability and qualifications of such a person.
Therefore the issue is whether the job has changed and what are the legitimate requirements for the job, and whether the union has proven that the grievor has the reasonable ability to perform the job and has reached the threshold level.
Since the last arbitration, the structure of the security guards has changed slightly by the addition of a Senior Security Guard. That position has more responsibilities and has more accountability than the other security guard positions, but its creation did not affect or change the duties and responsibilities of the full time rotational security guard position.
The nature of the full-time rotational security guard today, is as described by Vice-Chair Leighton at page 4 of her decision:
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 infractions on the other end. Events at the OCC include receptions of foreign dignitaries, often requiring the highest level of security.
Since September 11, 2001, the employer has been attempting to respond to the greater demands for security by its clients and has continued it process to improve security at the OCC. On the evidence of both the employer and union witnesses, the bar has been raised, and the employer requires better customer service, and more accountability from its rotational guards, than it did three years ago.
With respect to the qualifications, skills and abilities for the position, Vice-chair Leighton found that a post secondary education was not necessary for the rotational guard position, but she noted, which remains true of the employer’s expectations and which accords with the position today:
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 issues. 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 is clear form 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 evidence that this kind of education may help to identify candidates with superior communication skills and judgement”.
Therefore three requirements for the position are leadership, good communication and good judgment. These remain the criteria for the position as any change to the position and its responsibilities has not reduced the need for these qualities, but has heightened the need for these attributes.
The skill that the employer is looking for in a rotational security position is equivalent to that required for a lead hand or supervisory position. The employer is looking for leadership, team building, and communication skills, people who can recognize deficiencies in the teams and take actions to motivate people to get the work done, to write reports and to lead by example. The employer states that the communication skills that it is seeking in a rotational guard includes the ability to communicate with the team, to lead and build team cohesion to being able to take positions of leadership in de-escalating a security situation. For a casual security guard, the employer is looking for dependability, the ability to do the basics of the job, to complete punch tours, to write reports and to take direction from senior officers. In both situations, the employer is looking for people who are able to make decisions and to communicate.
The union asserted, as was done in the first arbitration, that there is little or difference in the duties between the full time rotational and the full-time non-rotational positions. The union representative submitted that as in Deltassist Community Services Society and I.C.T.U, Loc. 1, which found that an employee hired on a casual basis to perform the “handyDart driver” had the qualifications, skills and ability to perform the position on a full time basis, the grievor had filled in for a rotational guard, and therefore has shown that she is qualified to do the rotational guard position. This argument however, ignores the distinction which Vice-Chair Leighton found between the two positions, which I adhere to, given the evidence by both employer and union witnesses on the matter.
I am mindful that in areas which are nebulous such as that of leadership, communication and interpersonal skills and judgement, that the assessment of such skills are subjective and that an arbitration board must give considerable deference to the assessment made by management, as management is in the best situation to assess the needs of the team, the requirements for leadership and the application and development of those skills. As emphasized in Sun-Rype Products Ltd. supra, at page 10, there is a distinction between the assessment of mechanical skills and abilities needed for a position, and the assessment of qualities that are subjective in nature:
In reviewing employers’ assessments of such subjective skills, [interpersonal abilities such as leadership and communication skills], an arbitration board must give considerable deference to the opinions of the people who have actually worked with the individual. In that regard, in Fleet Industries, 1990 CanLII 12862 (ON LA), 14 L.A.C. (4th) 151, Arbitrator Brent stated at p. 162:
Both Polymer, supra, 1972 CanLII 1971 (ON LA), 24 L.A.C. 277, and Ottawa, supra, 1988 CanLII 9191 (ON LA), 1 L.A.C. (4th) 60, deal specifically with the assessment of leadership qualities. In the former case, at pp. 285-6, the board said:
Reasonable ability to perform the required task should be the bench mark for testing qualifications. If we were merely dealing with the performance of a mechanical or technical task, Mr. Whittsitt’s lengthy experience on the job would indicate his competence to perform the task with reasonable ability. However, as indicated above, the prime function with which we are here concerned is of a more nebulous nature. Leadership ability is an intangible quality that is not always exercised in the same way. While leadership may be demonstrated in practice it is very difficult to measure by the use of abstract tests.
In Ottawa, supra at pp.68-9 the following remarks were made:
…assessing qualities like an ability to supervise others is very much a matter of judgment. Personal impressions of how an applicant handles the responsibilities of supervision may be quite important in reaching a conclusion. Personal observations of the applicant in a supervisory situation may be quite helpful and so may an interview….
As found by Vice-Chair Leighton, leadership, communication skills and good judgment are reasonable requirements for this position. The process which the employer followed, the written questions and an interview are a fair and reasonable method of assessment of a candidate. The questions posed offered the grievor the opportunity to focus on the prerequisites that the employer was seeking.
Although the grievor stated that she was not interviewed, but was placed in front of a computer to answer questions, I prefer the evidence of Rick Malloch. His notes set out information which he and Allison George, the Director of Human Resources, received from the grievor on December 17, 2003 in an interview. I believe that difference in evidence by the grievor was merely an oversight, as the grievor focused on the written questions.
Rick Malloch had structured the written questions to allow the candidate to provide him with examples which would demonstrate leadership qualities. He did not find that the grievor provided that information, but relied on having five years experience. Her role with Burns Security was different from that at the OCC and she did not offer any tangible examples of leadership. One question addressed her use of judgment. The grievor provided an example in which he respected her decision and use of judgement, but he found that she was so adamant in her decision, that she was not prepared to listen to management and to understand the situation from both sides. He was also concerned with her response to the question which asked her what changes she would make to the organization, and she chose to isolate Security from other departments rather than seeing Security as part of a co-operative team.
In all, Rick Mallock’s assessment was that she does not have the proper communication skills, both oral and in writing, that she does not have the team building and leadership skills that are required for a full time rotational position, and the skills to get other departments involved, and her judgment skills needed to be worked on.
I do not find that the employer either manipulated the criteria or its application or did not provide the grievor with ample opportunity to demonstrate that she could meet the prerequisites for the position. The issue is whether notwithstanding the employer’s decision, can the union prove that the grievor has the requisite qualifications, skills and abilities, such that I should not defer to management’s decision.
The Union relied on the evidence of the grievor, Brent Caldwell, a full time rotational security guard, and Shelley Lalonde, now Shelly Greco, the Senior Security Guard, all of whom had testified at the preceding arbitration.
Brent Caldwell testified that the grievor’s skills and abilities had improved since the last arbitration and there was a marked improvement in her professionalism. She has responded to the demand for customer service and seeks out clients of the OCC to determine their needs for events. He recognized that three years ago, as now, the grievor was still “rough around the edges” but that she has shown marked improvement. She is polite, more scripted than before, and goes out of her way to help people, although she is abrupt and aggressive. She has a different style of communication from the norm which has not changed in the last three years. In her communication with others, he says that from his vantage point, she does not follow protocol. He has not believe that she has any difficulties with the OCC staff. On the contrary, he has seen that she will assist other employees when requested. He testified that her report writing had improved although it was not as good as the other rotational officers, and in comparison with other non-rotational security officers was as good as some and below others.
Shelley Greco testified that she felt in a compromising situation having been called by the union to give testimony, and yet having to continue to work on a daily basis with both Rick Malloch, of management and with Debbie. She testified that she felt intimidated by Malloch. It is common that a witness who is a co-worker and yet has to give evidence that may impact a co-worker will express discomfort at being required to give evidence. Shelly Greco however was adamant that she was telling the truth. Furthermore, given that Shelly Greco was able to testify both as to the grievor’s strengths and witnesses, I do not find that her testimony was tainted by any discomfort that she felt.
Shelly Greco, as Senior Security Guard, is responsible for scheduling the security guards. She testified that in her view that the grievor was the most reliable and dependable employee and can do the rotational security guard position, and therefore has scheduled the grievor in the full time rotational schedule. She did admit however, that all casual and part time rotational security guards have filled in that shift at one time or another. She found the grievor professional and proactive in looking for potential hazards and ensuring the lock up of articles. She is helpful to other OCC staff and to the clients.
Shelly Greco testified however, that the grievor had three areas of weakness, poor report writing, communication problems, and the grievor has exercised her judgment differently from the way she would exercise her judgment in a particular instance. Poor report writing manifested itself in spelling and grammatical mistakes and inaccuracies, such as writing about things that did not happen or not correctly identifying individuals named in reports, or misspelling names. Shelly Greco has concerns over the grievor’s accurate reporting, and in the past has corrected one of the grievor’s reports in order that it would not reflect poorly on either the grievor or the department. Shelly Greco confirmed the evidence of Brent Caldwell that she is still “rough around the edges” and that the grievor communication skills are weak in that she is abrupt. Notwithstanding the grievor’s improvements, Shelly Greco did convey to Rich Malloch that it was her impression that the grievor did not qualify for the position of full time rotational guard, that the grievor had difficult with report writing, with decision making as it related to clients and her judgement was different from her own.
The grievor did not provide evidence that she had now acquired the qualifications, skills and abilities called for by the position. The grievor took the position that Vice-Chair Leighton was wrong in her assessment and that she had had the skills and abilities at the time and that she continued to have them. She continued to maintain that there were no differences between the jobs of the rotational security guard and the non-rotational guard, whether that person is full time, part time or casual. She was of the view that all the positions required leadership, communication and personal skills, which she had.
The grievor was not able to point to any leadership skills that she has since acquired. She did indicate that she works as an occasional parking supervisor for Capital Security which has a contract to provide security for the OCC, and has been a supervisor with Burns Security in the past.
In order to better herself she has done a one or two day ‘Police Foundation Review’ course given by Algonquin College which was mandatory for the department, is on the Health and Safety Committee, and is assigned to Workplace Hazard Material and Safety matters for the building.
After reviewing all the evidence, I do not find that the union has established that the grievor has met the threshold to demonstrate that she has the qualifications, skills and abilities required for the position, to the effect that I should not give deference to the assessment made by the employer. The nature of the evidence of the co-workers was not sufficient to bring into question the judgement of management in concluding that the grievor has adequate qualifications, skills and abilities to perform the job.
Therefore this grievance is dismissed.
Dated at Toronto, this 6th day of May, 2005