EPCOR Utilities Inc. v Local 1007, International Brotherhood of Electrical Workers

IN THE MATTER OF AN ARBITRATION

B E T W E E N:

EPCOR Utilities Inc.

- and -

The Employer

Local 1007,

International Brotherhood of Electrical Workers,

TheUnion

Re: B.B.

Grievance File No.: EPCOR 2019-04

A W A R D

BEFORE THE BOARD OF ARBITRATION:

Thomas Jolliffe, Q.C., Chair

Chris Lane, Q.C., Employer Nominee

Paul McKnight, Union Nominee

FOR THE EMPLOYER:

FOR THE UNION:

Craig Neuman, Q.C., Counsel

Dan Scott, Counsel

HEARING DATES:

November 18and 19, 2021 (via Zoom)

January 14, 2022 (via Zoom)

BOARD EXECUTIVE SESSION:

March 8, 2022 (via Teleconference)

Date Award Issued:

April 6, 2022

My File: 53,447

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1.

This matter concerns the grievance brought by the International Brotherhood of Electrical

Workers, Local 1007 on behalf of B.B. ("the grievor") who holds a Troubleman position at EPCOR

in Electricity Operations at its Edmonton utility operations covering electrical transmission and

distribution systems in the City. The grievor's day-to-day duties have involved working in a team

format responding to dispatch calls over electrical infrastructure problems. He has ample experience

working in the field performing troubleshooting duties dealing with potentially high hazard situations

while his team returns the system back to a normal operating state, needing to make temporary or

permanent repairs in the field relative to all aspects of the system as required. The grievance was

filed on March 29, 2019 following notification that the Foreman's position for which the grievor

applied, within the bargaining unit, was awarded to another employee with less seniority. The Union

claims the choice of this other internal candidate, T.B., to have been "unjust'', seeking that the

position be awarded to the grievor. It has asserted in the grievance:

There exists circumstances which when considered, prove (the grievor) to be the

appropriate employee to fill the position, such as his seniority, as well as other skills

and qualifications.

2.

The pertinent language of the collective agreement dealing with promotions is contained at

Article 10.01. It reads as follows:

10.01 In making promotions to vacant jobs coming within the jurisdiction of the

Union, the required knowledge and skills (behavioural and the technical)

contained in the job posting shall be the primary considerations, and where

two (2) or more applicants are equally qualified to fulfil the duties of the job,

seniority shall be the determining factor.

3.

The Parties prepared and entered in evidence at the arbitration hearing their Agreed Statement

of Facts and Exhibits (Ex. 1-16), reserving the right to tender additional evidence which they have

done through witness testimony, including the grievor. The successful candidate, T.B., currently

continues working in the Foreman's position. He was in attendance throughout the hearing with

intervenor status and was given the opportunity to question witnesses and make his own statement

were he so inclined. No one else declared themselves to be an interested party, nor were there any

other grievances with which to be concerned.

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Known Factual Background:

Without reproducing herein the full document setting out the Agreed Facts, as signed by the

4.

Parties' respective counsel, suffice to say it has been reviewed by the Board in its entirety. It details

the selection process undertaken by the Employer in 2019 to fill a vacancy in the position of

Powerline Foreman, Classification: PSF 8185, known as the "Trouble Foreman" position. The

Position Description document, entered in evidence, includes abrief summary outlining thepurpose

of the position and providing an overview of the key accountabilities of the Foreman's position,

being accountable for the performance of the trouble operational functions in the Edmonton area to

ensure that the Trouble crews carry out their duties efficiently, effectively, and cooperatively with

other work groups. The Job Posting document, entered in evidence, which went online

approximately one month prior to their commencing the interview sessions, contains a section

entitled Brief Posting Description which reads as follows:

As the Trouble Operations Foreman, you will be accountable for the performance of

the trouble operational functions in the Edmonton area with an emphasis on delivering

a quality product in a safe work environment achieved by front-line safety and quality

control supervision. You will optimize Trouble crews to ensure work is carried out

efficiently, effectively and co-operatively with other work groups.

5.

The Posting also contains a section entitled Job Requirements, which reads as follows:

The successful candidate will possess the following qualifications:

•

Grade 12 Diploma or GED (or equivalent).

Journeyman Power Line Technician certificate or Power Linemen certificate

or Power System Electrician (PSE) or equivalent Red Seal.

A minimum of five years of progressively responsible experience as a

Troubleman.

•

Demonstrated leadership/supervisory skills.

Strong knowledge of applicable regulations such as, EPCOR work practices

and procedures, OH&S, ECUC and EPCOR Safety Manual.

Demonstrated ability showing strong planning and decision-making skills.

Strong familiarization with the Aerial and Underground Standards, technical

prints and schematics, and Distribution Automation.

•

You must demonstrate strong interpersonal skills in dealing with people issues,

including providing feedback, mentoring and coaching. You must have attention to

detail, a high level of technical expertise along with a working knowledge of the

Microsoft suite of products including, Excel and Word. In addition, you have

experience working with FIT, Feel Smart, Oracle, Sharepoint and Ivara. You will be

focussed on your personal development and be willing to increase your technical and

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interpersonal knowledge. Furthermore, you will conduct yourselves in a professional

manner, have exceptional communication skills and be a team player.

6.

There were six applicants for the Trouble Foreman position. One of them did not possess the

required skills and qualifications set out in the Posting, and was given no further consideration in

the selection format, there being no issue about that person being dropped from the process. The

remaining five applicants proceeded through the interview process. All these candidates were

EPCOR employees in the bargaining unit represented by the Union. All of them had submitted

resumes to be considered during the assessment process. Both the grievor' s and T.B.'s resumes were

entered in evidence, together with their training records and annual performance assessments. Their

respective seniority dates were set out in the Seniority Listing document, entered in evidence. This

listing document shows the grievor to have a seniority date of April 21, 1992, the second most

seniority of the five remaining candidates. T.B.'s seniority dates from April 10, 2000.

7.

As the selection process proceeded, with the interview panel members having reviewed the

applications and resumes submitted by the five remaining applicants, two of them were interviewed

on March 13, 2019 (DW and SM). Two were interviewed on March 21 (the grievor and AM). The

last interview, (T.B.), was held on March 26. The interview panel initially consisted of Darren Faster

(Manager, Trouble Operations), Jennifer Bishop (Consultant with EPCOR, Talent Acquisition), both

of whom testified concerning their involvement in the interview process, Eric Whitby (Manager,

Meter Field Operations) who did not testify, and Brent Worton (retiring Trouble Foreman) who

declined to continue in the role after the first two applicants had been interviewed (DW and SM).

His removing himself from the interview process did not result in anyone replacing him, and he did

not testify. The document entitled Interview Guide was entered in evidence. Itcontains introduction

information and detailed questions, the same for each applicant, but in particular for our purposes

concerning the grievor and T.B. The Guide includes a preset scoring matrix. The Question Scoring

portion of the Guide reads as follows:

Be sure to go through each interview question and provide the "managers ideal

response".This will help determine the candidates score on each question.

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Example scoring matrix:

•

0 =

answered incorrectly, or provides cliche response

1

2

=

provided we can answer, does not provide a full response

personal answer, provided minimal response

answered most of the question, understood and provided a stronger

response

3

=

4

answered majority of the question, provided detailed response

fully answered the question, provided exact "ideal response"

•

=

5

8.

The process contemplated the post-interview detailed handwritten notes and sconng

question-by-question by the two members who testified, Mr. Foster and Ms. Bishop. The following

paragraphs from the Agreed Facts address the predetermined questions as categorized, also the

weightings applied during the interview process, and the scoring as assessed from applicant to

applicant focussing for our purposes on a comparison between the grievor and T.B. These paragraphs

read as follows:

18.

The interviews were conducted using an interview questionnaire with pre•

determined questions and weightings of questions for scoring purposes. The

same interview questionnaire was used for all applicants. The interview

questions were categorized into the following areas and weightings

Weighting

[5%

Category

The grievor

10.77%

1.54%

T.B.

Education

13.85%

18.46%

6.15%

7.69%

10.77%

6.15%

7.69%

76.92%

Technical Skills

Leadership Skills

Safe Work Practices

Managing Performance

ProcessManagement

Taking Ownership

Choice Management

Total Score

1.54%

3.08%

6.15%

1.54%

4.62%

40%

25.

26.

27.

Interview scores arrived at by the interview panel are attached (Exhibit 15).

The scoring of APRs for the applicants is attached (Exhibit 16).

Based on the scorings of the interview panel, EPCOR's hiring manager,

Darren Foster, selected T.B. as the successful applicant on the posting.

28.

T.B. started in the Trouble Foreman position on April 25, 2019. He remains

the incumbent in that position today.

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9.

Exhibit 4 reads as follows:

Interview Total Points

Candidate

Weight 90%

APtR

Weight

10%

TOTAL

(100%)

D.W.

41.53846154

40

37.38

36

43.4

42

60

80

60

6

8

6

The grievor

T.B.

76.92307692

41.53846154

67.69230769

69.23

37.38

60.92

77.2

43.4

66.9

S.M.

A.M.

Opening Statements:

In opening statements fromthe Parties' respective counsel, the Union made itsposition clear

10.

that hadthetwo candidates, the grievor and T.B.,been properly interviewed and.assessed according

to a fair and transparent process, which it asserts did not occur, neither of them should have been

found necessarily to be more qualified than the other, meaning that the grievor should have been the

successful candidate on the basis of his higher seniority. There is an approximate eight years'

difference in the grievor's favour. The reason for T.B.'s success was said to rest with the faulty

process.

11.

Mr. Scott submitted that the Union has several difficulties with the interview process,

including that the retiring Trouble Foreman, Mr. Worton, had removed himself from the panel after

the first two interview sessions, and was not involved inthe assessment of either the grievor or T.B.

Further, their interviews were not held onthe sameday, rather were separated by several days. T.B.,

as the last applicant to be interviewed, met with the panel five days after the grievor's interview,

which for the Union has "raised a red flag" over the possibility of the selection being pre•

determined. The Union advanced what it sees to be other serious concerns, including an alleged

failure bythe remaining panel members to fairly weigh these two candidates inmarking them under

the scoring matrix guideline set out in the Interview Guide on the basis of responses assessed

covering the spate of identical questions posed during the interview process. There is no doubt that

they spent considerably more interview time with the grievor than T.B. The marks' assessment

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associated with this process was from the Union's perspective, taken to be unfair and even

inexplicable. It was said to reinforce the Union's concerns that choosing a successful applicant was

"fundamentally flawed",including their failure toprovide sufficient weight or credit attaching tothe

grievor already having performed inacting Foreman's duties atonepoint, which the Union contends

should have been "heavily weighted". Additionally, the panel should have carefully considered his

annual performance appraisals as opposed to placing as much weight as the panel members did on

the interviews, the marking of which the Union views to be inconsistent and confusing in their

awarding substantially higher marks for T.B.

12.

Counsel submitted that at the very least the scoring problems should result in the panel re•

doing the entire application and interview process in the event the evidence did not persuade the

Board that these two applicants should have been considered equally qualified to fulfill the duties

of the job. That finding would require application of seniority as the determining factor.

13.

Mr. Neuman in his opening statement on behalf of EPCOR focussed on the requirements of

Article 10.01 in submitting that there should be no diminution of the contract language dealing with

making promotions. It dictates "that required knowledge and skills (behaviour and technical)

contained in the job posting shall be the primary considerations ....", with seniority to be the

determining factor only where "two (2) or more applicants are equally qualified to fulfil the duties

of the job." The Employer views this language to have invited "abig tent" approach by those panel

members exercising their assessment responsibility following each interview. Their examination of

skills and abilities should be viewed as reasonably showing T.B. to be the superior candidate and

properly selected. Itshould not be missed, Mr. Neuman submitted, that the Trouble Foreman leads

a group of team members who are all expected to have a variety of skills in order to properly

perform their assigned duties, many of whom have significant seniority and experience working in

the field. The least senior applicant had 17years seniority. They are all taken to be highly qualified

career Troublemen. Nevertheless, from the EPCOR perspective, the evidence is expected to show

that T.B. sethimself apart from the other candidates, including the grievor, on the basis ofhis related

experience and skill set which included his having been working closely with the retiring foreman,

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Mr. Worton, as the Troubleman Trainer from 2018, at the same time performing relief foreman work

in the Trouble Centre. Itshould not be missed, he submitted, that the interview process, about which

Ms. Bishop and Mr. Foster would be testifying as panel members, placed T.B. significantly higher

than the grievor (77% vs 42%). The grievor, by a small margin was assessed the lowest overall

percentage of the five candidates. One of the other candidates (DW) who was ultimately assessed

marginally superior to the grievor (43.4% vs 42%) had the highest seniority. As it was, the Employer

contends there was no manipulation of the interview process or the selection considerations in

favour of any candidate. The assessment tool was designed to reveal skills and ability, including

communicating with others, but not overlooking the experience factor. This included the grievor

having experience "sharing" relief foreman duties covering an illness leave situation, by the

grievor's description in testimony meaning on Thursday and Friday every other week over two

approximate six months' periods in 2015 and 2016.

Witness Testimony:

14.

The first Union witness in this matter, Jack Lutz, is a former senior manager, in Aerial

Trouble and Continuation Services, out of scope since 1998, and retired from EPCOR since 2012

after 38 years service. Prior to his retirement he knew the grievor to be a senior power lineman,

responsible for running a five person crew in the field, and whom he had hired in 2011 into a

manager's position. He recalled that after approximately three months the grievor approached him

indicating that it was the "wrong time" to take on managerial responsibilities and he returned to crew

work, again as a senior lineman. Mr. Lutz has also known T.B. since his hiring as a journeyman

power systems electrical technician, later dual ticketed as a power lineman, whom he recollected,

back then, had received "pretty good" performance reviews. Mr. Lutz testified that after his

retirement in 2012, he kept in touch "with the guys", still maintaining his long-established friendly

relationships, and continuing to be concerned over certain safety issues. Following his retirement,

he was not personally involved with how the Trouble Crew roles were evolving. He was not

connected to anything ongoing in the various work settings, although continuing to maintain a

friendly relationship with Mr. Foster whom we knew to be the Trouble Operations Manager.

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15.

Mr. Lutz testified that in 2019, which is to say some seven years following his retirement,

he became aware that the grievor was applying for the Trouble Foreman's position following Mr.

Worton's retirement. He found himself having a short telephone discussion with Mr. Worton about

who might be in the running to replace him. He recalled Mr. Worton having mentioned T.B. as a

likely candidate who, he mentioned, had been doing "all the relieving" at that point. Mr. Lutz

testified that he could hear some chuckling in the background, no evidence about content. He

recalled being approached shortly thereafter by the grievor who asked if he had some time to work

with him on the upcoming interview process, having applied for the Trouble Foreman's position.

He recalled sitting down with him for several hours covering what he thought would be the relevant

areas of possible questioning, such as budgeting, scheduling, staffing, safety and escalation issues,

and the significance of maintaining open communication. To him, it seemed that the grievor was

making sure that "all his bases were covered", even taking notes. He thereafter had no other

involvement with the selection process. At the same time, he acknowledged being aware there were

internal training courses available for those seeking advancement, which did not come up for

discussion in his talking with the grievor.

16.

The grievortestified onhis ownbehalf. In his latest annual performance review (APfR)prior

to his March 2019 application for the Trouble Foreman's position, he is described as holding an S1

Troubleman position working in Electricity Operations with no current supervisory authority,

although disclosing that he did have some past relief foreman experience. In reviewing his Resume

during his testimony, the grievor detailed his history at EPCOR starting with his hiring as a

temporary utility worker in 1992, no certification required. Some five years later after becoming a

certified journeyman power lineman through NAIT, he was successful in completing his

apprenticeship at EPCOR. Between 1999 and 2005 he worked as an Aerial Power Lineman before

transferring into a Troubleman position and then some four years later into a Power Lineman IV

position. By his description, his duties involved organizing and supervising his Aerial team

members, and exercising in-charge responsibilities in the field as the senior power lineman on his

five-man crew,planning and organizing their handling ofassigned outages. Between September and

December 2011 hemoved intothe out ofscopeposition asManager, before making the decision for

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personal reasons to return to his Power Lineman IV position, and then transferring into Troubleman

work in February 2012. In dealing with his time spent performing relief foreman duties, along with

a Troubleman co-worker, the grievor testified that they were filling in for Mr. Worton in 2015 and

2016 who, by the grievor's recollection, was off work for two approximate six-month periods of

time. He recalled that his co-worker, having greater seniority, was more active in the role leaving

it up to him to supervise Thursday and Friday every other week, which is to say about four days per

month, and at one point, he thinks, about three work days in 10. He acknowledged that since about

January 2017 he has been working straight Troubleman duties, continuing in that role to the current

time.

17.

The last three APfR appraisals for his Troubleman position, prior to applying for Troubleman

Foreman, 2016, 2017 and 2018 contained the managerial assessment that the griever's overall rating

was "Fully Successful". His manager in 2016, Todd Churko, in assessing his overall rating that year

acknowledged the griever to have taken on the responsibility of acting foreman duties in Mr.

Worton' s absence over the past year and was continuing to share his experience and knowledge with

his team when required. He called him a hard worker and self motivated and continued to be a

valued member of the Trouble Section. In the following year's APfR, Mr. Churko again assessed

the grievor as "Fully Successful" pointing to his excellent safety record and is continuing to

demonstrate behaviours required to be successful in his Troubleman role on the team, taking pride

in the resolution of customer issues in dealing with them in a professional manner, highly respected

by other EPCOR groups with which he interacts while troubleshooting various system issues. In

2018, Mr. Foster having become his manager that year, the griever was again assessed as being

"Fully Successful", having an excellent safety record. He called him an engaged member of the

Trouble crew and continuing to demonstrate the behaviours required to be successful in his role on

the team, continually looking to do things better or smarter. Mr. Foster mentioned in the APfR that

year that the griever was 'always willing to voice his opinion and is continually looking to do things

better or smarter". In their "numerous conversations throughout the year (he) always enjoyed talking

with him as I tend to learn a lot from these conversations." He noted the griever's having always

attended Safety meetings, being "an engaged member of the Trouble crew." He would look forward

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to working the grievor in the upcoming year. In the last three performance appraisals entered in

evidence, the grievor had always been assessed as "Fully Successful".

18.

On becoming aware of the February 2019 Posting for the Trouble Foreman's position, the

grievor reviewed the document. He said that he had no issue with the accuracy of the Brief Position

Description or the Job Requirements section, being what he saw himself as having performed on

those days he was assigned to acting foreman duties, as described, in2015 and 2016. Upon applying

in March 2019, the grievor provided internal references, which he understands were not checked,

having reviewed the Job Requirements section contained in the Posting. By his description on the

day of his scheduled interview, Mr. Worton approached him to advise that he was no longer a panel

member. Inasmuch as he was the outgoing foreman and the subject matter expert in the Trouble

Room, he would have liked him to be there. He said that he knew Mr. Foster from when they were

both apprentices, but not Ms. Bishop. He took some notes into the interview which he consulted

from time to time. By his recollection the interview lasted "a little over two hours". He has read

through the panel members' notes of his interview, which he recognizes were not averbatim record.

He expects that he handled himself well in giving detailed, even lengthy, responses covering the

various categories covered in the interview, believing himself to have adequately described his

strong planning skills as ahigh seniority Troubleman reacting to emergent situations inthe field "on

the fly" on many occasions. He considers himself to have strong people skills, which he believed

he communicated during his interview. He counts himself as familiar with some software systems

but as a field person not spending his time in the office, admittedly expecting to require some

assistance from time to time in that area of the Trouble Foreman's work. He described having

communicated to the panel members his working within the various technical aspects of thejob and

having long-since developed the communication and team skills he would bring to the Foreman's

job.

19.

In cross-examination it was put to the grievor that the Trouble Foreman's job did not focus

on supervising crews while they worked in the field, to which he responded: "it could be but not

necessarily".It was admittedly not the Foreman's role. The field work, he would expect, would not

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entail the same kind of supervision he had provided years earlier as a senior power lineman working

in the field together with his team. He agreed that it was fair to say much of the Trouble Foreman

supervision was done from an office environment, a matter of planning and assigning staff,

performing administrative duties, but generally not following crews into the field.

20.

The list of the grievor's in-house mandatory training courses with EPCOR was entered in

evidence, the same courses for all electrical workers. He acknowledged that he has never taken any

of the voluntary/optional internal training courses which are offered from time to time, remarking

they are difficult to access when working 12 hour days. By his recollection, he did not take any

optional training on his off hours or on days he was not assigned. In September 2011, in order for

him to move into the manager's job for the three months he stayed in the position, he described

taking both an introductory management course and a duty manager course which he successfully

completed.

21.

The grievor confirmed that he had past experience with interviews including when he was

working as a Power Lineman IV, sitting in at least three times during the hiring process for survey

technicians and apprentices, and also sitting in at least once when he briefly held the manager's

position, providing some input into questions about the work needing to be performed under his

supervision. By his description, he was "concerned" when he observed there was no current foreman

sitting on the panel, someone whom he could identify as a subject matter expert. He had not been

acquainted with the outside manager who attended, Mr. Whitby, who did not work in the Trouble

area, although Mr. Foster was their Manager, Trouble Operations, who had overseen his latest 2018

Performance Appraisal.

22.

The first Employer witness to testify, Jennifer Bishop, in 2019 was the Talent Acquisition

Consultant at EPCOR, involved in providing advice to management, conducting interviews and

assessing candidates, having attended many applicant interviews ("a couple of hundred for sure"),

both for in-scope and out-of-scope hirings. She testified that she had not dealt with the grievor

previously, but in 2017 when T.B. successfully applied for the Foreman Trainer's position she had

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assisted in processing the paperwork associated therewith, not involved in the interview process. In

this current matter she participated in the drafting of the internal posting for the Trouble Foreman's

position, relying on templates and the published job description, also reviewing previous

competitions in working with Mr. Foster to complete the posting. She recalled being advised by Mr.

Foster that following his involvement with the first two candidates being interviewed, DW and SM,

Mr. Worton indicated not feeling comfortable with continuing on the panel and chose to leave. She

did not talk with him about his decision, but recognizing that they needed someone on the panel with

technical expertise, she was aware that Mr. Foster had experience as a power systems electrician and

in the past had worked in two different Foreman roles before becoming manager of Trouble

Operations. She did not believe that he had ever been a Troubleman or Troubleman Foreman

himself. She knew that the Interview Guide had been compiled by Mr. Foster using the internal

standard tool known as the Interview Guide Generator, in the panel members looking to assess

appropriate responses to the numerous questions, their also having access to previously developed

interview guides.

23.

Ms. Bishop testified that the interviews were conducted using the interview questionnaire

with pre-determined questions and weightings to be applied for scoring purposes. The questions

were categorized into various areas and weightings as set out in the Agreed Facts at para. 18. She

knew that the last two questions, Taking Ownership and Change Management, were added by Mr.

Foster as being specific to the Trouble Operations area, his wanting to delve in to the topic of

anticipating changes in technology and functions. She said that the weightings were meant to capture

the qualifications from the Job Description, meaning that one's education and experience would be

considered "quite important", as well as technical skills such as understanding computer systems,

and specific leadership competencies. The panel members had all read the candidates' resumes prior

to commencing the interview process. They had not checked their references, which she said was

not typically done for internal applicants who all have annual appraisals on file completed by their

managers.

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24.

As indicated in the Agreed Facts, copies of interview questionnaires and the notes of the

interview panel members for the griever and T.B. were entered in evidence, together with the

interview scores and points' rankings of the five candidates, and so too the scoring for the APfR

appraisals where T.B. was awarded a total of 12 points for his three yearly assessments of

"Exceeding Expectations". The four other candidates were each awarded 9 points for their being

assessed as "Meeting Expectations" for each of those years. Ms. Bishop acknowledged that the

APtR appraisals were considered in terms of the marks applied to the final rating, not a matter of

providing any extra weighted consideration to cover the manager's comments made therein, whether

it be with respect to communication or technical skills or some other aspect of their yearly

performance. The yearly scoring was accepted as validly assessed by the respective managers.

25.

In her testimony, Ms. Bishop reviewed the 0 - 5 scoring matrix for each of the 13 questions

asked of the applicants, ranging from incorrect or cliched responses at the lowest end to providing

a fully ideal response at the highest scoring level. Using a scoring matrix was part of the template

for all position interviews. They had reviewed the resumes of all the candidates. By her description,

the panel members took notes while the questions were being answered, and took turns asking the

questions. As the process moved ahead, they ran out of time on March 21 due to the griever's

interview that afternoon having taken some 2Yz hours to complete, significantly longer than anyone

else's. T.B. had to be interviewed on the next available day, March 26, 2019. On being asked why

she thought the griever's interview was so lengthy, she conveyed her view that he was not

sufficiently prepared to organize his thoughts and succinctly answer their questions, requiring

additional time to respond to follow-up questions concerning a lot of his answers. By her description

there did not seem to be any recognizable structure to the flow of his answers and they had to work

at relating his answers to the questions being asked. She testified that as with all of the candidates,

following each interview the panel members sat together and talked through the answers, looking

for a consensus on scores they were attaching to the 13 questions. She put it: "we had lengthy

discussions about the answers and were looking to come together on the scores, and there was no

disagreement" in the scoring they applied. By her description, she believed that everyone understood

the answers being given by the candidates, although not a matter of transcribing their answers

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verbatim. She did not step back from her view that the scoring realistically reflected the answers they

received to the questions being asked by reference to the matrix they were applying. On doing their

reviews covering 13 areas of questioning, she stated her assessment that it was "not a close call, with

T.B., by her description, having "stood out" amongst them.

26.

Ms. Bishop was cross-examined over her assignment of points under the matrix scoring

system to the griever's answers when compared with those provided by T.B. to the same questions,

and his points, keeping in mind the range of possible answers to interview questions extending 0 -

5 for a candidate's assessed responses. The Interview Guide set out "manager's ideal response" as

helping to determine the score on each question. She testified that ultimately the panel was looking

for the best candidate based on the job requirements' outline set out at p. 2 of the document as to

what qualifications the successful candidate should possess. These requirements were taken by her

to be reflected in the Interview Guide which sets out questions and scoring matrix, although

admittedly there was some overlap as amongst the questions in their looking for knowledge,

competency, communication and leadership skills. Ms. Bishop answered questions posed by counsel

particularly aimed at comparing the griever's answers with those provided by T.B. where the

assessed marks on the 0 -5 scale significantly favoured T.B. covering several questions. Her answer

in dealing with this line of questioning, asking her to explain the difference in marks awarded where

the griever was scored lower, was that they were looking for specific range of responses, or wanting

more clarity or better communication on the descriptions he provided. She assessed him as either

scoring 1 on the matrix ("provided weak answer, does not provide a full response") or 2 ("partial

answer, provided minimal response") on five of the 13 questions. These included such areas as

describing his experience of planning and scheduling work and relating his experience in

coordinating a major shutdown; setting out the most important technical skills for a foreman; safety

responsibilities on a crew; actions taken when observing others breaking the rules; and involving

crew members in planning tasks to be completed.

27.

Ms. Bishop testified that the panel members assumed, without comparing their levels of work

experience, that all the candidates had ample experience and knowledge of the Troubleman area in

-16-

reaching the interview stage. Mr. Scott in cross-examination took issue with Ms. Bishop over

whether there was any real or significant difference between the grievor and T.B. to be taken from

their answer, as set out in her notes. Itwas observed T.B. generally was marked between 3 ("answer

most of the question, understood and provided a strong response"), 4 ("answered majority of the

question, provided detailed response "), or 5 ("fully answered the question, provided exact 'ideal

response"'). Counsel took particular issue with Ms. Bishop over her having assessed the grievor's

response as meriting 0 ("answered incorrectly, or provides cliche response") in his dealing with a

question centering on the issue of providing constructive criticism and feedback to employees, her

showing some difficulty in explaining why she assessed his answer as supporting the lowest possible

mark by reference to notes made at the time. She said it may have been largely a problem in his

failing to find a way to articulate what he was trying to relate to the panel members, but they can

only score what they heard and assisted him in seeking to flesh out his answers, a time-consuming

exercise. She was aware from their post interview discussions that the other two panel members, Mr.

Foster and Mr. Whitby both had awarded a zero assessment for the same question, as indicated in

their notes. She defended her notes on T.B.' s interview answers, not being a verbatim transcription,

namely, how his responses by her assessment were shown in most instances to be closer to what the

panel's expectation was for one presenting informed and well-communicated answers, not all of

which were captured word-for-word in her notes. By example, she recalled not being satisfied with

a recollection described by the grievor concerning an instance of providing constructive criticism

to a co-worker which did not seem to be as much providing feedback to him as throwing blame in

their discussion. Ms. Bishop was not satisfied with his discussion of the constructive criticism issue

in dealing with others, even where he had said "coaching", without following explanation.

28.

Ms. Bishop testified that the panel employed a comparison process amongst all five

candidates following the conclusion of the interview process which involved a second run through

of the answers provided by the candidates. It resulted in at least one of T.B.'s questions being

downgraded from a 4 to 3 and some answers from others being upgraded. By her description, in their

panel discussion subsequent to the interview process, there was no controversy amongst them over

who had best answered the questions they posed and whom they should consider the successful

-17-

candidate. In comparing T.B. with the aggrieved grievor, she said that "in particular", she had

concluded that T.B. demonstrated leadership qualities, was a clear communicator, provided

examples advancing his point of view, was understandable in dealing with issues involving

coworkers unlike the grievor, and did not require much probing from the panel in presenting his

views. She was not surprised at the difference between them inasmuch as she was aware T.B. had

taken more leadership courses and optional training at his own initiative which may have enhanced

his ability to convey his point of view on several leadership and communication topics they

discussed in dealing with the interview questions.

29.

The Employer's second witness, Darren Foster, at one point in his career with EPCOR held

an in-scope Foreman's position running a commercial grade electrical crew prior to taking the

Manager's position in Metering Operations in 2009 and then becoming Manager of the Power

Trouble section in April 2018. His duties currently include ensuring a safe work plan in all areas

underhismanagement, notably inspections andescalations, his interacting both with employees and

stakeholders,conductingcoachingandcounselling sessions.Heoverseesmanagement ofemergency

events, ensuring that worksites are safe and that electricity is restored when outages occur. Mr.

Foster operates from the Trouble Centre, reporting to the general Manager of Systems Control at

EPCOR, managing the work of one Trouble Foreman and one Trouble Trainer having acting

foreman capacity, and the 19Troubleman positions, all ofwhom arejourneyman electricians. Many

of them are very experienced, some holding multiple tickets.

30.

Mr. Foster acknowledged having known the grievor formany years, being aware that he had

transferred into a Troubleman position in 2012 after spending some years in a senior lineman's

position and a short time in a manager's position. He knew him to be a competent and experienced

member of his field crew. He has also known T.B. for many years, having most recently dealt with

him as the Trouble Trainer, a role created in 2018 on a temporary basis, with the expectation of

doing "aton ofrelief 'forthe Trouble Foreman, Mr. Worton, who was approaching retirement. This

position has since been made permanent and includes doing Trouble Foreman relief duties. By Mr.

Foster's description, he considers himself to be "very familiar" with the Trouble Foreman's role,

-18-

spending much of his time each day in the next cubicle at the Trouble Centre. He also indicated

knowing all five remaining candidates for the Trouble Foreman's position, their all taken to be

experienced internal candidates, with anestablished seriesofsuitable annual performance appraisals.

31.

Mr. Foster, in his overseeing the interview process, acknowledged in testimony that he did

not consider himself a subject matter expert covering the Trouble Foreman's position, but believed

he was suitably knowledgeable in what the position entailed, having worked closely with the

previous incumbent, Mr. Worton, and in his view understanding the scope of the job, "what it was

all about" in line with the posted job requirements which he considered to be accurate. He worked

with Ms. Bishop in formulating the selection process, their having accessed the interview guide

known as the Interview Template Generator in creating the questions tailored to the Trouble

Foreman's position, and utilizing the 0 - 5 point matrix. The interview process included having

outlined what they considered to be ideal candidate responses dealing with what was pared down

to 13 areas of questioning. Some of the considerations reflected therein in hiring Mr. Worton's

replacement, as described by Mr. Foster, related to the expected ongoing updating to the EPCOR

internal processes and procedures such as those requiring some downsizing, changes to crew makeup

and expected related duties, inthe evolving modernizing workplace where the Trouble Foreman was

expected to play a significant planning and supervisory role. He said that he was aware that all the

candidates had demonstrated daily the leadership skills and other qualities necessary for working

as Troublemen, and accordingly this was the most significant step in assessing the candidates

through the interview responses, by his recollection counting for 70% of the marks under its matrix

system, with 20% thereunder to reflect one's experience and training as also incorporated into the

interview scoring and 10% for the APfR assessments.

32.

Mr. Foster had asked the retiring foreman, Mr. Worton, to sit on the hiring panel, but after

the first two interviews, he declined to continue, leaving the interview process to be continued by

the remaining three panellists, as also mentioned by Ms. Bishop and her testimony. At that point

they had not yet interviewed either the griever or T.B. By Mr. Foster's description, he considered

the three remaining panel members to have adequate technical knowledge to conduct the final three

-19-

interviews. In proceeding with the interviews, he did not doubt that all of the candidates had

leadership aspects and qualities associated with their past work, all of them being highly reliable and

much appreciated workers. He acknowledged his view that going into the application and interview

process T.B. would have had some advantage over the grievor given his various voluntary training

programs ("more well rounded in his training"), having the most recent relevant experience, and a

superior assessed performance over the previous three years, also having worked in various areas

at EPCOR in his gaining a suitable breath of knowledge. Mr. Foster was aware that as the temporary

Trouble Trainer over the previous year, T.B. had spent time filling in for the retiring Mr. Worton.

By his observation, he had been displaying leadership skills in dealing with workplace issues which

presumably would be reflected in his answering the interview questions in that area. At the same

time, Mr. Foster was aware that the grievor had spent three months in the fall of 2011 working in

a management position before indicating to him, by his recollection, that he was not getting enough

from the job and wanted to return to the bargaining unit which had resulted in his transferring into

a Troubleman position in 2012. By Mr. Foster's recollection the only additional educational

credentials the grievor had earned related to his accepting the management position in 2011, being

what he described as requiring his completion of a two day "boot camp". Otherwise, his additional

training during his employment was all in line with the EPCOR periodic refresher courses, a

mandatory requirement for all its bargaining unit employees. He was aware that the grievor had

performed some Trouble Foreman relief duties in 2015 and 2016, as had been described in the

grievor's testimony.

33.

In moving forward with the interviews, by Mr. Foster's description, the timing of their

meeting with each of the five candidates was influenced by work scheduling and availability, a

matter of coordinating times with the panel members reflecting both their availability and not in

accordance with any pre-ordained order. As he put: "it was basically who was available for the days

we were available". It led to the grievor being the third interviewee, whose interview lasted longer

than expected and resulted in the fifth scheduled interviewee, T.B., having to be rescheduled several

days later according to availability.

-20-

34.

In describing the approach, as he recalled it, applied to the five interviews, the questioning

format was the same, all the candidates being asked to address the same questions posed to them.

He testified that the interview process was designed to capture technical proficiency in addition to

educational/training and experiential aspects. He said that the allotment of marks for the interview

process was thought to be appropriate. Otherwise the other candidates would not have had much

chance given T.B.'s recent ongoing experience in a leadership role and his enhanced training

activities. He had taken a variety of available voluntary internally delivered course work over the

years, including project management and leadership courses. He said that the five interviews lasted

approximately 1- 1 Y2 hours, except for the griever's which he recalled running approximately 2 Y2

hours, who as Mr. Foster put it: "talked a lot". He viewed the questions asked as being fair and

relevant, standing by the scores applied to each applicant in the various areas the panel members

explored.

35.

Mr. Foster, in his testimony, reviewed many of the answers provided by the grievor and by

T.B. covering the 13 question format within the scoring matrix, namely the interview process as it

unfolded and the scoring of answers received in comparing the grievor with T.B. He indicated his

concern with several areas of the griever's responses. For example in dealing with technical

questions relating to his familiarity of all computer systems to be utilized, he recalled the griever

having honestly admitted that for him it was not a strong point, his knowing only the "basics", and

that if he ran into difficulties he "will ask the girls to show me" which ignored the fact that there is

availability to only one administrative assistant who does not work for the Trouble Foreman. The

incumbent is expected to carry out numerous administrative duties involving knowledgeable

application of computer skills. He recalled the griever's rating himself as being a 6 out of 10 in that

area. He received a '3' scoring whereas T.B. received a '5' for it being recognized through his

responses as having "extensive" computer skills, and was "very computer literate", as Mr. Foster

put it. Mr. Foster also testified that the Foreman's position requires strong technical skills, needing

to spend an estimated 80% to 85% of working time on administrative office duties in the planning

and administering the job scheduling and assignments, and organizing site maintenance work.

Accordingly, Mr. Foster was not satisfied with the grievor's answer that he found administrative

-21-

duties "bothersome'', admittedly feeling more comfortable providing direction to others in the field.

In the grievor' s dealing with the topic of general technical questions, having already indicated it was

not a strength, Mr. Foster was concerned that his explanation included no commitment to enhance

its technical ability or put himself in a position to satisfactorily fulfil what he considered to be

pertinent skills related to the job, the grievor's choosing to convey his position that he had a "vast

knowledge" of Troubleman work. Mr. Foster and the other panel members did not doubt his field

experience in that area.

36.

Mr. Foster's assessment covering several lines of questioning, concerning which he was

cross-examined at some length, was that T.B.'s answers were generally more superior. He had

assessed the grievor as failing to indicate suitable recognition of the significance of change in

implementation of solutions as a daily constant in Troubleman work, the Foreman's position

requiring one to influence others to go along with what was required to better perform theirjobs. Mr.

Foster indicated also being concerned over the grievor's response to the line of questioning

concerning safe work practices. He asked him to relate a risky situation with which he had to deal

over the past year, including explaining how the situation occurred, the outcomes, his role, whether

if faced with the same situation he would do anything differently, and what did he learn. By Mr.

Foster's interview notes the grievor had responded by describing an incident that had occurred some

12 years earlier involving a worker coming into contact with a live circuit, the grievor having

followed OH&S and others into the scene. His assignment was to ensure that the area had been made

safe. He said that he had been a bit rattled and it was very confusing but he handled the situation.

In assessing this answer during his testimony, essentially dealing with safe work practices and what

might be learned from an incident, Mr. Foster did not see that he had described providing any

intervention at the time, did not talk about any lessons learned, and was taken to have conveyed no

real structure to his answer in essentially not answering the question. His answer received a '1• as

the consensus panel score. By contrast, T.B. had described an explosive incident occurring some

months previously respecting subsurface network panels, with manhole covers blown off, resulting

in a widespread downtown power loss, where he coordinated with other crews, Fire and Police and

was the assigned lead in working to remedy the situation, going on to describe what he had learned

-22-

from working through the incident. The consensus score awarded him by the panel was '4'.

37.

In another area of the interview, dealing with conveying constructive criticism as a leader in

providing an example of providing constructive feedback to an employee who did not receive it well,

the grievor had indicated he did not like the descriptive used term as people perceive it is just

picking on them, their having to explain things and asking them not to take it as a slight, although

mentioning "coaching". He received a consensus 'O' mark on the basis that his answer "must have

come off not well", as discussed during their post-interview conferencing. When it was pointed out

to him that the grievor had at least said "coaching", Mr. Foster responded that he mentioned it

without any context or explanation as to what he meant, not considered a satisfactory response.

38.

In dealing in his interview with "ownership" questions on how he intended to make the

position his own and what changes did he feel needed to take place in the section, Mr. Foster

recorded the grievor as indicating it was not his job to say what he would do but implementing lots

of changes was not the way. He also recalled the grievor saying that he believed in an open policy

and getting feedback from the staff looking to include everyone in any decision-making process for

changes. Mr. Foster's notes record him as stating "who is looking for a change in there and I am

getting close to their (sic)". T.B.'s answer included committing to his dealing with staff needs,

assisting with the transition, providing solid stable leadership, conveying expectations, and more

training opportunities. The grievor received a '1' and T.B. a '4' as the consensus score. In the related

area dealing with "Change Management", Mr. Foster had recorded in his notes that the grievor in

responding to the line of questioning about changes he foresees within the coming years, answered

that the workload has changed in their having lots of filler work, also metering, loss of streetlight

work. Traffic calls are gone, have a fault indicator program, and during quiet times they could do

other duties, remarking that "idle hands are the devil's workshop". T.B. responded that the changes

he foresaw involved new technology, Apps, computer operated systems. older staff, their needing

succession planning, continuing to streamline P.T.G., better checks and balances for the staff,

streamlining operations and getting extra work to fill down time. The grievor received a consensus

'1' for his answer and T.B. a '5'.

-23-

39.

Generally, in his discussion of the candidates' answers to the questions posed under the

matrix, by Mr. Foster's assessment at the time, and also being the panel's consensus assessment as

he recalled, it was as if the grievor was hoping to hit a target answer they were wanting to hear, and

seldom getting there despite prompting additional discussion. By his description, overall there was

no favourable comparison with T.B.'s approach where his demonstrated leadership efforts and

abilities were illustrated in his answers, and where his enhanced training and voluntary course work

was revealed "most of time", as reflected in the final scoring under the matrix. He acknowledged

that the demonstrated leadership skills for the candidates were based entirely on the interview

responses. In Mr. Foster's view it resulted in T.B. being more successful by a wide margin in

comparing his interview responses with the grievor' s, which final tally also included the eight points

given for T.B.'s superior past performance record over the three years of APfR.s which were

reviewed by the panel members. The other candidates, including the grievor, all received six points

for their ApfR.s.

40.

As with Ms. Bishop, Mr. Foster described there being no lack of panel consensus over the

final marking of candidates, including in their assessing what he described as a "demonstrable

difference" and "demonstrably different" in the skills and ability between the grievor and T.B. As

it was, he did not disagree with the more senior AM, who did not grieve, having almost come within

10% of T.B. in the final scoring (77.2 vs. 66.9). He has since moved into the Trouble Trainer role

onitsbecoming apermanent position opened forcompetition, concerning which the grievor did not

apply. The grievor was scored the lowest of the other three remaining candidates by a slim margin

(43.4 and 43.4 vs. 42.0) based on the interview scores in that they received the same six points for

their identical APfR ratings. By Mr. Foster's description, ultimately the scoring of all candidates

reflected the difference in their skillsand qualifications as explored through the interview process.

41.

Mr. Foster was cross-examined in some detail covering the answers received by the panel

members during the interview sessions of the grievor and T.B., and his considered impressions of

what he was hearing. In some areas of questioning, admittedly, it was difficult to tell from his notes

whether there was much difference in their responses, but where T.B. nevertheless received superior

-24-

marks. Insome areas where he received a 'O' or a '1', where T.B. was scored considerably higher

by the panel members, for example in the question about his views on providing constructive

criticism, there were doubts expressed to him by counsel that the answers could be considered

qualitatively different. In defending review to be the consensus panel scoring he disagreed, although

acknowledging that the difference inthe answers were not always easily discernible from their notes.

By his description, they nevertheless did their best in marking the answers received. At the same

time Mr. Foster did not doubt that the "flat-out time" that T.B. had performed in relief foreman's

duties since 2018, the experience gained from successfully filling in for the absent Mr. Worton from

time to time, the time spent as the Trouble Trainer over the previous year, and his sitting on the

Standards Committee, as well as his leadership coursework, may well have left him better able to

organize and communicate his range of answers during the interview process. He was aware that the

grievor had been involved in some foreman relief work in 2015, and into 2016. During the course

of the cross-examination Mr. Foster did not resile from his view that T.B., by the panel's consensus

assessment, received a higher score in many of the questions put to the candidates than the grievor

because he provided better answers under the scoring matrix, as he put it: "it was left of the panel

(to decide the scores) on the basis of what we heard", which reflected his superior technical training

and recent job experience.

42.

The successful candidate T.B. did not testify. As with the grievor, his performance appraisal

documentation for 2016, 2017 and 2018 was likewise placed in evidence. It was noted by his

manager Mr. Churko in the 2016 APfR that T.B. was a "hard-working, self-motivated individual

who brings a professional attitude to hisjob duties. This coupled with his expertise and experience

is a big reason why he is considered a leader in the trouble room". It was assessed as continuing to

improve his skill level by taking various leadership courses internally available, also having

completed all his technical training required of him that year. He was also described as "a leader in

safety and takes that extra time required to thoroughly evaluate potential hazards and put controls

in place for the safety of his team and general public", having had no incidents or injuries that year.

His overall rating was "Exceeding Expectations". The following year, 2017, he was assessed by his

new manager Mr. Foster as "continues to display the behaviours of a leader within the Trouble

-25-

Group. He is fully engaged in bringing ideas and solutions to help improve the area as well as

supporting other groups within EPCOR ..... definitely a huge asset to the System Operations Group

and continues to be considered a high performer within EPCOR." His overall rating was again

assessed at "Exceeding Expectations". The following year 2018 he was assessed by Mr. Foster as

doing "an excellent job as the Trouble Trainer. He has kept on top of all changes with procedures

and industry as well as our own compliance and conformance numbers have never been better....

steps into the Foreman's role with ease and is well-liked and respected amongst his peers.... has a

wealth of knowledge and shares his knowledge freely with others.... actively attend safety meetings

(all of them) as well as participates in many other safety-related functions outside the office role as

HSE Committee meetings and training with other factions (conferences, ENMAX crosstraining) ....

always looking to adjust and approve on the safe work planning and documentation ... has had 0

incidents, escalations or accidents".... T.B.'s overall rating was again one of "Exceeding

Expectations".

Union argument:

43.

In submissions on behalf of the Union, Mr. Scott reviewed the express language of 10.01;

namely, in the Employer making promotions the provision demands that the "required knowledge

and skills (behavioural and technical) contained in the job posting shall be the primary

considerations", with seniority being the determining factor where two or more applicants "are

equally qualified to fulfil the duties ofthejob".Thejob posting requirements govern the assessment

process. The Union contends firstly that there was a "big gap" in the scoring of requirements by

reference tothe interview process when placed alongside thejob posting requirements. Itasserts that

the interview process unfolded without there being any sufficient attention given to them, which

should be considered fatal to the selection decision. The more senior employee as between the

grievor and T.B. should have been selected (the most senior losing candidate DW not having

grieved). Counsel submitted that the interview process did not sufficiently cover thejob description

requirements, with the interviewers alreadybeing oftheviewthat T.B. had apparently "raced ahead"

of the others based on their predisposition towards him as the likely successful candidate prior to

-26-

the interview process, essentially said to have been acknowledged by Mr. Foster. Itshould be viewed

as having skewed the hiring, and specifically needing to keep in mind that Mr. Foster had been

working alongside T.B. over the previous year he was performing in the Trouble Trainer role, also

performing relief foreman duties for the soon-to-retire Mr. Worton, and thereby coming within Mr.

Foster's direct supervision. He was already performing a variety of administrative duties from the

next cubicle in the same Trouble Centre office, suggesting a loss of objectivity on Mr. Foster's part.

The Board should consider that there was inadequate tie-back to the job requirements stemming

from the obvious advantage related to their successful working relationship. It unfairly worked

against the proper assessment standard being applied to the other candidates. The interview itself

was such that the grievor was set up for failure as reflected in the panel members' overall negative

view of the grievor, the extra hour they spent with him realistically not meant to work in his favour.

44.

In support counsel cited Lethbridge (County) v. C. U P.E., Local 2800, 2009 CarswellAlta

947 (Ponak) where the arbitrator in a "relative ability" case determined at para. 43 that the eight

interview questions for a grader operator's position bore too little relation to the criteria in the job

posting, i.e., being asked how long they wanted thejob, whether they intended to stay in the position,

whether they took pride in their work, had any difficulty working with people, was able to take

criticism, had any related experience, and were willing to work overtime. The Arbitrator observed

that while the questions may have been of interest to the employer, only two of them sufficiently

reflected thejob in question, namely the willingness to work overtime, and the qualifications set out

in the job posting, which he found to be insufficient in determining the best candidate. There were

no notes of the interview process made available and accordingly it was difficult for Arbitrator

Ponak to see how the answers were used in comparing the candidates against the actual criteria for

the job. He found especially troubling the absence of any objective evidence of the candidates'

"abilities in operating the equipment", being one of the listed criteria. The interview process having

been found deficient, but without the evidence suitably disclosing that the aggrieved higher-seniority

candidate was better qualified, the Arbitrator ordered the employer to rerun the competition,

addressing the defects in the original competition.

-27-

45.

Additionally, the Union contends that the Employer's almost solely relying on the interview

process as the determining factor was a fundamentally and fatally flawed approach in selecting the

successful candidate. In focussing on the interview, Mr. Scott submitted, there was no appropriate

assessment of the past performance aspects as they related to moving ahead into foreman's

responsibilities, other than noting the final scoring in the last three years' APfRs without any further

examination and analysis of performance equivalency. The approach was said to essentially lack any

real consideration of the technical and experiential skills covered in the performance assessments.

Accordingly, the difference in their seniority was ignored, 27 years for the grievor versus 19 years

for T.B., as realistically reflecting their experiential difference. Mr. Scott submitted that our situation

was arguably comparable to the circumstances reviewed by Arbitrator Dissanayake in O.P.S.E. U

v. Ontario (Northern Development, Mines & Forestry), 2011 CarswellOnt 11220, where he observed

at para. 30 that in the competition for a senior administrative clerk position "there is no evidence that

the employer assessed anything other than the applicant's performance in the interview and practical

test".In his review of this exposed deficiency he cited past arbitration awards setting out competition

principles, namely as cited in paras. 28 and 29 as follows:

28

The standard expected of an employer in conducting a job competition has been

longestablished through theBoardjurisprudence. Theapplicable principles aresummarized

at pp. 25-26 in the often cited decision in Re Maclellan and DeGrandis 506/81 (Samuels)

as follows:

1.

2.

Candidates must be evaluated on all the relevant qualifications for

thejob as set out in the Position Specification.

The various methods used to assess the candidates should address

their relevant qualifications insofar as is possible. For example,

interview questions and evaluation forms should cover all the

qualifications.

3.

4.

Irrelevant factors should not be considered.

All the members of a selection committee should review the

personnel files of all the applicants.

5.

6.

The applicants' supervisors should be asked for their evaluations

of the applicants.

Information shouldbeaccumulated inasystematicway concerning

all the applicants.

-28-

29

The Board has repeatedly held that relying solely on interview scores as a means

of assessing the relative qualifications and abilities of the applicants is unacceptable. Thus

in Re Esposito, 2168/92 (Kaplan) the Board stated at p. 26 "As the Board has noted in a

legion of cases, where a selection panel relies inordinately on interviews, it does so at its

own peril." In Re Liblik!Scipnek, 2525/91 (Dissanayake) at pp. 19-20, the Board wrote:

As the Board has stated on many previous decisions, the employer is

entitled to conduct interviews and/or tests to assess the candidates' relative

qualifications and abilities to perform the duties in a posted position.

Where the employer has no evidence before it which is more reliable than

the performance at the interviews, it many have no choice but to rely solely

on the interview scores. However, where some candidates have actual

employment experience, particularly in the posted job itself, the evaluation

of their performance on the job must usually be preferred to the interview

results. At the very least, that must be given serious consideration in the

overall assessment of the employee's qualifications and ability to perform

the duties of the posted position.

(Emphasis added)

The Board has held that sole reliance on interview scores to select appointees is by itself

reason to strike down the results of ajob competition. See Re Poole, 2508/87 (Samuels) and

Re Clipperton, 2554/87 (Watters).

46.

In further support, counsel cited British Columbia Public School Employers Assn. and BCTF

(DeVries) 2018 CarswellBC 4144 (Sullivan) dealing with the employer's failure to appoint the

senior candidate to two separate teaching positions which had become available, where as the

arbitrator noted at para. 39, while the interview questions were fair and relevant to the positions:

"they were not comprehensive enough to reasonably assess abilities to perform the position". Itwas

said to be his "general observation" that there was a "visible disconnect between the scores and

comments of the interviewers and the educational qualifications and teaching experience of the

respective interviewees." The arbitrator considered that there had not been enough attention in the

interview process given to the substantive areas, namely "seniority, academic casework and other

training; teaching experience and other relevant experience; and proficiency of the applicants in the

relevant areas. Administrators appear to have made their recommendations for hiring without fully

considering these factors..."thereby making the process unreasonable for not adequately assessing

the abilities of the candidates as required under the contract language. In support of this

determination, Arbitrator Sullivan cited the line of cases where it was said that an interview can

amount to an artificial assessment of applicant's ability "to talk, to charm, or to use the words that

-29-

the interviewer clearly wants to hear" which did not necessarily prove the ability of the applicant.

He relied on Arbitrator Chemiack's approach in Fairview Home Inc. v. Fairview Nurses M N U .

Loe. 21, 1991 CarswellMan 485, in addition to other arbitrators' views along the same lines,

including Arbitrator Hope's observation in a case cited by Arbitrator Chemiack where the applicant

claims examiner's eight years of actual experience in an equivalent position were discounted in the

interview process which was weighted exclusively on the basis of how applicants were perceived

by the panel members, their perception of how the candidate "came across" during the interview,

i.e., eye contact, body language, composure, apparent verbal skills, self-confidence and other

behavioural characteristics which was too insensitive to the issue of experience and performance

record. Arbitrator Sullivan at para. 67 of his award, stated that the "ability to conduct oneself during

the interview is only one facet of an employee's abilities, often not a particularly significant or

relevant facet. So much depends, unfortunateIy, on the interviewers' ability to go beyond the surface

impressions in the artificial atmosphere of an interview, probe deeply into the applicant's vision and

knowledge". Likewise in Elgin (County) Roman Catholic Separate School Board v. London &

District Service Workers Union, Local 220, 1992Carswellnt 5269 (Rose) the panellists had focussed

on the employee's interview performance, her seeking a secretarial position, rather than giving

enough attention to her prior work experience, which included three years working at the same

school. There was no serious examination of her secretarial experience prior to that time. This best

indicator was ignored in considering her skills as was the aggrieved employee's three years

experience with the school board. The Union draws a comparison with the grievor's situation. Mr.

Scott submitted that there was insufficient weight given to his past working experience at EPCOR

and his satisfactory work assessments, concerning which there should have been given more

consideration. However, one is driven to observe that in Elgin it was not a case of someone applying

for promotion into a highly technical position requiring a wide skill set and a sizable increased level

of responsibility.

47.

In his submissions Mr. Scott disputed the accuracy of the marking of the grievor's responses

in several areas of the 13 lines of questioning taken from Ms. Bishop and Mr. Foster's explanation,

and interviewer notes, provided during their testimony. The Board in our review, he submitted,

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should consider that the answers provided by the grievor versus T.B.'s responses could not have

reasonably led to such a disparity in scoring, and illustrate through the wide difference recorded on

several questions, supposedly consensual amongst the interviewers, a skewed process, one without

the required objectivity. This disparity in how their responses were assessed should not be viewed

as adequately tied to the known job requirements and suggests there was no valid assessment,

essentially a fatal approach focussing on the pre-determination that T.B. was the better candidate.

Their marking should be taken as having fallen in line with the pre-determination as to the best

candidate. Again, Mr. Scott in his submissions drew a parallel with the examination of circumstances

by Arbitrator Dissanayake in his O.P.S.E. U award, supra, dealing with the competition process for

an administrative clerk's position, where the Arbitrator found their was no evidence the employer

assessed anything other than the applicants' performance in the interview and practical test, meaning

that the aggrieved employee's demonstrated performance in past related duties was "completely

ignored" as reliable information despite it being a much more reliable indicator of qualifications and

abilities for the posted position. It led to his concluding at p. 9, having reviewed the evidence

presented, that "ifthe candidates' relative employment experience and knowledge as it related to the

posted position had been duly assessed, the grievor would have been found at least to be relatively

equal, in qualifications and ability...". Accordingly, the aggrieved employee's greater seniority should

have applied, which resulted in the Arbitrator's direction that the appointment be made. The same

determination, counsel submitted, should follow the Board's concerns and considerations over the

grievor being denied the Trouble Foreman position, or at the very least a new competition should be

directed, keeping in mind that the grievor did not have the highest seniority amongst the unsuccessful

candidates.

48.

In one of the other cases cited by Mr. Scott, Acadian Platers Co. v. U S. W.A,, Local 8059,

1997 CarswellOnt 5721 (Knopf), involving a competition for an assistant maintenance person's

position, the arbitrator nevertheless observed that an interview was an appropriate method for

determining the abilities and skills in most cases, remarking:

An interview is an appropriate method for an employer to determine abilities and skills in

most cases. But to use it as an exclusive method of determining skills is very problematic.

First, the weight an interview should be given will depend largely on the type of job in

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question. Performance at an interview is an essential and important factor to consider if a

person is being considered for ajob requiring verbal, listening and communication skills. But

the job in question requires none of those. It requires facility and knowledge of a specific

kind. An Assistant Maintenance person needs to be able to utilize equipment, perform certain

tasks and be knowledgeable about many pieces of equipment and machinery. This can be

tested partly to an interview. But it can more be more effectively tested practically by asking

employees to perform basic tasks and were considering someone's work record. Alternatively

it can be determined by questioning people who have observed candidate doing work in the

past.

49.

Arbitrator Knopf went on to observe that the employer placed almost exclusive weight onthe

interview. She noted that the more senior candidate was not an articulate person, seeming to be

comfortable expressing himself, meaning that an interview would be a difficult situation for him to

display the skills. She determined that relying exclusively on an interview, and one person's

recollection of work situations, was unreasonable in the circumstances. She remarked that "while the

grievor had the responsibility of expressing his experience and skills when he had the opportunity at

the job interview, management could not blind itself to the contribution that the grievor had already

made to maintenance efforts in the plant." The Arbitrator directed that the aggrieved employee be

given a two week trial in the position in order to demonstrate he had the present ability to do the job.

In taking that approach, she pointed out that even were the employer to put too much weight on the

interview and not consider other available evidence, the union still bore the onus of establishing that

the grievor had the present skill and ability to do the job in question, which the Union submits the

grievor did in our situation, as with the other candidates.

50.

Counsel also cited Arbitrator Wallace's award in Canadian Blood Services and Health

Sciences Association of Alberta (Camat), 2009 CarswellAlta 2474 where although ultimately

dismissing the grievance he accepted the line of cases requiring in a "relative ability" case that it

cannot be a matter of relying on differences which are "insignificant" in order tojustify hiring the

junior employee, rather they must be "discernible" and "material", although the assessment process

can never be entirely free of subjectivity, to cite other arbitrators. His analysis included Arbitrator

Mitchnick's award in Ottawa CivicHospital and ON.A. (1989) 9L.A.C. (4th) 348 where he reasoned

that thejunior employee must possess more ability than the senior by a "substantial and demonstrable

margin" to be entitled to the job. The Union contends this test was not met by the Employer here,

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where the grievor's knowledge level, experience and past performance as an indicator of future

success in the Trouble Foreman's position was said to be overlooked by too much reliance on the

interview. It should translate into recognizing his greater seniority, asthe only unsuccessful candidate

who grieved, and should be awarded the position. Inthe alternative there should at least be a newly

constructed competition process not so focussed on the interview component.

Employer argument:

51.

Mr. Neuman submitted on behalf of the Employer that one should not lose sight of the job

competition assessment principles established through many years of arbitration awards. He

referenced the Brown & Beatty, Canadian Labour Arbitration summary starting at topic 6:3000 as

guidance in pointing to a broad labour relations consensus concerning promotion language such as

contained in the current collective agreement. It solidifies the management right to select the best

candidate for the position where under the contract language seniority is not the determinative or even

material consideration, unless one or other competing applicants were equally qualified to fulfil the

duties of the job. Further the assessment decision should not be invalidated unless the process of

candidates' comparability within the selection process was fatally flawed by management violating

some fundamental principle associated therewith, the onus of proof resting with the Union. Itshould

not be missed that this is not a situation of determining which candidate had the basic qualifications

for the Trouble Foreman's job, as all the candidates interviewed were taken as meeting the minimum

requirements relative to their seniority, training and experience. Itrests with the Union to show that

the grievor was relatively equal to T.B. in the knowledge and skills (behavioural and technical) as

the primary considerations contained in the Job Posting regardless of the seniority difference, which

the Employer contends is simply not supported by the evidence. This includes considering what can

be taken from the interview process resulting in an assessed mismatch between the grievor and T.B.

in many of the 13 areas under discussion with them, and what was already known about the training,

experiential and performance aspects of the candidates, and their observed skills, including by

reference to the APtR yearly ratings. There should be no second-guessing of an employer's

assessment pursuant to the contractual language where management acted reasonably and its selection

cannot be said to have been arbitrary or discriminatory. Arbitrator Wallace in the Canadian Blood

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Services case, supra, in observing that the judgement of the company must be honest and unbiased,

not actuated by malice or ill will directed toward a particular employee nevertheless accepted as did

1

Arbitrator Herman in Northern Telephone Ltd and C.E.P. (Samson) (2000, 90 LAC (4 h) 146at para.

154:

[A]narbitrator does not determinewhether the employer selected thecandidate(s) that

the arbitrator would have chosen, and the employer need not have conducted the

competition precisely as the reviewing arbitrator would have conducted it. The

employer in this respect is only required to have acted reasonably in how it filled the

position.

52.

Arbitrator Wallace pointed out that as a general consideration the function of the arbitration

board is to ensure that the parties' contract language is properly applied, noting the parameters set

out in the specific competition provision. He observed that the root of the employer's judgement on

the losing candidate was its conclusion that on the parameters set out in the competition provision,

hers were not equal to her successful co-worker's. They were either missing from her working

experience or not current and accordingly, in dealing with what he observed had been a "close

competition", as the Arbitrator put it: "the grievance therefore succeeds or fails depending upon our

view of thisjudgement". He went on to observe that the employer was "entitled" to analyse interview

results and also look beyond the bare scores.

53.

In submitting that the Employer acted reasonably in the process undertaken in the selection

made, Mr. Neuman has cited the analysis undertaken by Arbitrator Smith in Whitecourt-Fox Creek

General Hospital District No. 87 and UN A., Loe. 149, [1994] A.G.A.A. No.7, where the aggrieved

more senior employee disputed the selection of another candidate into a part-time nursing position

at the hospital. The employer did not doubt that both she and the successful candidate had the basic

required qualifications and experience. The union contended that the decision was not fairly made,

and was unreasonable, in asserting that the employer had used irrelevant criteria such as the lone

interviewer's personal knowledge of the successful applicant, having worked with her, while

focussing on the aggrieved employee's less well developed interview skills, and by the union's

assessment overlooking her better qualifications to carry out the job. The interviewer worked from

a standard set of questions and did not review the personnel files of the four applicants before their

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interviews. She had performed an audit of their charting skills in order to review the quality of

charting and processing orders. The conclusion reached by the decision maker was that the successful

candidate's skills were more well-rounded in the areas of medical surgery, emergency and ICU and

had more certifications as relevant to a rural hospital experience, also having somewhat better

charting, reporting and communication skills, more related experience, and showed a real interest in

working on the nursing team. Unlike the aggrieved employee, she had worked on projects, and had

suggested improvements. Overall, the successful candidate's work history was seen by the decision

maker to suggest a better fit for the job. In addressing the employer's manner of dealing with the

selection of the successful candidate, and the scope of arbitral review covering that decision, the

Employer contends that starting at para. 46 the Arbitrator, set out the a reasonable approach after

carefully reviewing the evidence, arguments and cases presented, stating as follows:

46

Thescopeofarbitralreviewofapromotion decisionbymanagement hasbeen

the subject of much debate among arbitrators. At the very least, the arbitral

jurisprudence makesitclearthatmanagement'sdecisionmustnotbearbitrary,itmust

not be discriminatory, it must not be unreasonable and itmust not have been made in

bad faith. Many arbitrators adopt that limited scope of arbitral review as the

appropriate role of an arbitrator on the basis itis a "recognition that management is

in the best position to assess the requirements of the work place, the effective and

efficient operation ofitsfacilities and that itknows and isinthebest position tojudge

thecompetency andefficiencyofitsemployees" (ReHea/thLabour RelationsAssn. and

B.C.N. U. (Greyell), supra, at p. 121, a case cited by both the employer and the union in

this grievance). In addition, however, to that scope of arbitral review, the arbitration

panel is satisfied that management must also demonstrate that it has complied with the

collective agreement. In saying that, this panel is not suggesting that adoption of a strict

correctness test in that analysis. A useful discussion is found in Re Health Labour

Relations Assn. of B.C. (Princeton General Hospital) and B.C.N.U. (Hope), supra, in

respect to the meaning of the test of correctness. Correctness in the context of

compliance with the collective agreement does not in itself dictate that an arbitration

board has the jurisdiction or the obligation to conduct an independent review of

findings made by management to determine if the board would have reached the same

conclusion. Certainlythatexposition ofthetestisfoundintheElisabeth BruyereHea/th

Centre case, supra, cited by the employer, where arbitrator Saltman stated at p. 120

that:

In deciding this matter, the board must determine the merits of the

grievor's claim. It is no longer sufficient for the board to determine

whether or not the employer acted reasonably and in good faith in

making its decision on the competition.

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47

This panel is of the view, however, that correctness, while applicable to the

determination of the question of whether the employer complied with the collective

agreement, does not require nor ought the arbitration panel conduct an independent

evaluation of management's weighting and assessment of each of the criteria. Rather,

the arbitration panel's task is to determine whether or not management applied the

criteria set out in the agreement in making its decision and not some other criteria

thereby violating the terms of the collective agreement. It is not the task of the

arbitration panel to second-guess the employer in respect to those matters that involved

the consideration of subjective standards and judgment, which require the application

of technical expertise and knowledge related to the specific needs of the employer.

48

Having regard to the general scope of arbitral review, it is also necessary to

address briefly the burden of proof. The burden is on the union to present at least a

prima facie case that the grievor had relatively equal qualifications. Should such case

be presented, then the burden switches to management to explain the rationale and

process of its decision and to demonstrate that there is a substantial margin of

difference between candidates where a more junior candidate has been selected. While

the arbitration panel has some doubt that the union presented a prima facie case of

relative equality, for reasons that will become apparent hereafter, the arbitration panel

is not making its decision in this case on the basis of a non-suit against the union

49

Having regard to the appropriate scope of arbitral review in respect to

promotion decisions, the arbitration panel accepts that the appropriate format for

reviewing management's promotion decision is that set out in the Northern Telecom

case, supra. Those tests require an examination of whether there was compliance with

the collective agreement, was there a fair, appropriate and unbiased procedure, and

was the decision a reasonable one. As indicated by the arbitrator in the Northern

Telecom case [at p. 384], "the requirements, in a nutshell, are simply compliance,

proced ural fairness (including appropriateness), and a reasonable decision".

54.

Arbitrator Smith accepted that the evidence showed the employer to have considered those

matters required by the collective agreement, there being no evidence ofimproper conduct on the part

of management in exercising its discretion; also that the candidates were evaluated on the same basis

with the same interview approach used for each, seen to be an unbiased process. Further, in dealing

with the reasonableness of the decision, she found there to be no persuasive evidence the employer

considered any irrelevant considerations or factors which could be taken as improper within the scope

of the contract language, nor that the qualifications on which in the decision maker relied were

unreasonable or bore no reasonable relationship to the work needing to be done. In dealing with the

possibility of there being an arbitrariness/unreasonableness aspect in the decision making the

Arbitrator cited Health Labour Relations Assn and B.C.N U (1985) 21 L.A.C. (3d) 114 (Greyell) at

p. 122:

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We are simply not sufficiently versed in the arena in which these employees carry out

their day-to-day activities or in the complexities of hospital management and health

care service to second-guess management's decision if that decision appears on its face

to have been made in a nondiscriminatory, non-arbitrary and reasonable manner.

55.

Mr. Neuman submitted the case law clearly endorses recognizing that contract language which

contains what amounts to a "relatively equal clause" provides a broad discretion to management in

assessing various suitability factors it deems relevant to the position sought. Itcan thereby reasonably

set out to determine the factors under consideration, the weight to be attached, and the criteria to be

assessed. In support, he cited Arbitrator Chankasingh' s award in A. U P.E v. Alberta Health Services

(Shaikh Grievance), 2015 CarswellAlta 2018, where the aggrieved employee had the minimum

qualifications and the basic ability to perform the duties of a clerk's position in the hospital's

emergency department admissions. The issue was whether the aggrieved employee's qualifications

were relatively equal to those of the successful candidate who had less seniority. Ultimately, the

union was found to have failed to discharge the "onerous burden of proof

' resting with it in

challenging the employer's choice. The evidence placed before the Arbitrator was taken to disclose

that management's assessment was fair and reasonable, not arbitrary or discriminatory. The Arbitrator

at para. 107 cited the summary contained in Brown & Beatty (4th ed) at topic 6:3220 which reads as

follows:

Seniority plays a less decisive role in determining which employees will fill what jobs

where the operative clause in an agreement measures skills and qualifications

competitively, and stipulates that seniority will govern only when the abilities of two

or more of the competing employees are relatively equal. In workplaces covered by

agreements of this kind, junior employees who are more able or qualified may claim

jobs over more senior candidates. As well, the burden of proof that must be satisfied

by an employee to successfully challenge an employer's choice is more onerous.

Ifthe grievor was the senior applicant for the job, arbitrators have said that the grievor

must prove not only that he or she has the minimum qualifications and/or basic ability

to do the job, but as well that he or she was relatively equal in these respects to the

other applicants who were junior to him or her... When an employee is able to meet

that test and/or show that the employer's assessment of the competing applicants was

perfunctory, incomplete, based on irrelevant or improper grounds, or defective in some

other way, the onus would then shift to the employer to substantiate that its selection

was not arbitrary, discriminatory or unreasonable....

Not. surprisingly, given the more rigourous onus under a "relatively equal" clause,

arbitrators have confirmed management's conclusion as to the respective abilities of

the competing employees in many awards.

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56.

Arbitrator Chankasingh in his analysis dealt with the onus resting with the grievor to establish

a prima facie case, firstly that he had the minimum qualifications and ability to perform the position

in question, and secondly that his were relatively equal to the junior applicant. In terms of process,

while the more senior candidate possessed the basic qualifications set out in the posting, but was not

shortlisted, he found there was no obligation to interview him after having noted the large number

of applicants. The union had taken issue with the manager's personal knowledge of the successful

candidate in assessing her application. The Arbitrator cited University of British Columbia and

C.UP.E., Local 116, [1982] B.C.C.A.A.A. No. 247, 5 L.A.C. (3d) 69 (Munroe) where it was stated

at para. 14that "managers know their employees, know something about their training, talents, work

habits, leadership attributes etc. They are not thereby disqualified for making judgements affecting

the careers of their employees. What is required is honest reflection, an honest appraisal within the

parameters of the collective agreement". In rejecting the grievance, Arbitrator Chankasingh did not

interfere with the employer's decision that the qualifications and basic ability to perform the duties

of the position in question were not shown to be relatively equal. He determined that the employer's

finding the successful candidate to have been better qualified was a fair and reasonable assessment,

not arbitrary or discriminatory. In the case at hand, Mr. Neuman submitted, the assessment of

competing candidates followed the usual process, with significant emphasis on the interview process,

not unlike many cases where there are competing candidates, but also including established aspects

of technical training, experiential knowledge, and the performance assessment conclusions set out

in previous yearly reviews.

57.

On Mr. Neuman's review of the factual circumstances, he submitted, there was no conclusion

to be reached on an evidential basis that the process was fundamentally flawed in the assessment

decision reached following the interview process. The job related attributes of the less senior

candidate, T.B., were reviewed and he was reasonably found to be better qualified to perform the

duties of the Trouble Foreman position than the aggrieved employee through an overall assessment

of their established relevant knowledge and skills, both behavioural and technical, as contained in

the job posting. These qualities were carefully explored during the interview process, covering 13

areas of inquiry, but much was known about the grievor and T.B. through their work histories prior

-38-

totheir interviews. TheUnion isnow looking for my second-guessing their analysis and assessment

of the answers. It should not be discounted that the overall assessment was aimed at the required

leadership skills,inwhat was anoffice and administrative oriented position. Itrequired planning and

communication skills, and a developed understanding of the wide range of expectations needed to

fulfil the position's leadership responsibilities, all qualities concerning which T.B. showed himself

to be superior to the grievor both by his training and experience, and through the interview process.

Itmight be said that the interview process, having been given significant weight, was the grievor's

chance to pull himself even in the assessment process, given T.B.'s known and plainly established

skill level, training and experience, but he failed to do so.

58.

The Employer contends that there was nothing established on the evidence which detracted

from the legitimacy of management having concluded that T.B. was the best candidate. In counsel

reviewing the evidence, there was said to be no conclusion to be reached indicating bias, or ill will

towards anyone, or any real pre-determination. It was apparent that on its face of the working

histories at EPCOR, in comparing the grievor with T.B., there admittedly were legitimately known

and assessable factors favouring T.B. going into the interview process, including his voluntary

upgrade technical training commitment, more established relevant skill set such as those developed

over the previous year working as the acting Trouble Trainer and performing relief foreman duties

in Mr. Worton's absence. Unlike the grievor, T.B. had administrative and superior computer skills

by the time he applied. He had also had achieved the highest rated level in his most recent three years

of ApfRs, and had been performing related duties over the previous year. The grievor admittedly, by

his own admission, leaned more toward performing field duties as preferable over the administrative

aspects, having less developed computer skills and no stated commitment to improve them, nor had

he done any voluntary upgrading of technical skills. T.B. showed himself through his training and

experiential knowledge to have more established ability and inclination to perform duties from his

desk in the Trouble Centre which was critical to the job. The Employer, having acknowledged that

interview process was a significant element, would have the Board note that some of the admissions

made by the grievor during his interview, and confirmed during his testimony, were telling in terms

of separating out T.B.'s skills and abilities, and suitability for the permanent Foreman's

-39-

responsibilities.

59.

Counsel submittedthatoverallthefinalassessments asbetween thegrievor andT.B.involved

areas oflegitimate consideration, contemplated by the Job Posting requirements broadly read, were

realistically highlighted duringthe interviewprocess where the grievor did not help himself intrying

to establish he was the better candidate, and where T.B. was assessed by the three panellists as

providing better answers. Notably, the three panel members who interviewed the grievor and T.B.

all assessed the grievor as not having the same level of communication skills as T.B., nor

demonstrating the same level of leadership qualities or technical and experiential skill sets. They

specifically addressed pertinent candidate assessment issues during the interview process. Their

interview approach and what they took away from the sessions with the grievor and T.B. was

explained at some length by Ms. Bishop and Mr. Foster, and their assessments were said to be

supported through their answers recorded in their notes during the interviews, and the grievor's

testimony. It included his acknowledging how he voluntarily left a leadership role some years

previously after realizing it was not a good fit for him, thereby providing some doubt about

successfully going forward in another leadership position. He admitted to not having taken any

voluntary upgrade courses, they not fitting within his scheduling as he saw it, saying that he did not

have enough time to improve his technical skills on a voluntary basis. He indicated feeling more

comfortable inthe field and doesnot have strong computer skills, even requiring some office-related

assistance in the computer aspects of the job which is not easily available. Handling office

administration aspects isnevertheless asignificant component ofthe Foreman's expected duties.Nor

was he inclined during the interview to provide any insight into making improvements or providing

input going forward, not thinking that it was the Foreman's role.

60.

Mr. Neuman submitted that both Ms. Bishop and Mr. Foster should be taken as having

diligently fulfilled their responsibilities connected with the job competition in assessing the

candidates, Mr. Foster being the section manager, and Ms. Bishop brought into the interviewprocess

as the objective non-technical participant, together with another more senior manager Mr. Whitby.

The retiring Mr. Worton was not involved in the interview of either the grievor or T.B. and

-40-

accordingly his removing himself from process should not be seen as improper. The interview panel's

motivation should be seen as wanting to have the best candidate selected for the important position

of Trouble Foreman. Counsel submitted that while the Union may have some difficulty differentiating

the answers to questions posed during the interview and the scoring associated there with, both Mr.

Foster and Ms. Bishop explained their assessments which favoured T.B. over the grievor in many of

the areas of questioning. It is known that T.B.'s interview scores were higher than all the other

competing candidates, with only the non-aggrieved A.M. nearly coming within 10percent of his final

score. It should not be found, Mr. Neuman submitted, that the interview process lacked fairness and

consistency, the scoring matrix covering the 13question format being the same for all the candidates

who were asked the same questions by the same interviewers, and who with respect to the grievor

and T.B. reached a consensus on the scoring. At the same time, it should also not be overlooked that

it was never a close call as between the grievor and T.B., the grievor having been ranked fifth

amongst five candidates and there being a wide margin between the grievor and the two top-ranked

candidates, T.B. and AM.

61.

In dealing with the case-law described arbitrator investigations addressing whether there were

requirements spelled out in the collective agreement affecting appointments into positions, whether

the process for determining the successful candidate was fair and consistent for all, and whether the

final result was reasonable within arange of possibilities of what could occur, Mr. Neuman submitted

that the Employer should be taken as having met the established standard. We know that the grievor

has to make out his case on the preponderance of probabilities that his knowledge and skills, both

behavioural and technical, were better, that the process was not fair and consistent, and that the result

lay outside what could be considered reasonable in all the circumstances associated with the

competition. The Employer contends that this civil standard of proof has not been made out and that

the grievance should be dismissed.

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Conclusion:

62. The issue to be decided is whether the Employer violated the Collective Agreement

concerning the manner in which it chose the successful candidate, T.B., through the process applied

in selecting the new Trouble Foreman, being a promotion into another bargaining unit position. Were

that the case then it would be a matter of considering appropriate remedy, meaning whether to award

the more senior aggrieved employee the job or direct another competition to take place. We have

carefully reviewed and considered the evidence, the caselaw and argument submitted by the Parties'

respective counsel. In reviewing this matter, we are past the starting point of accepting that all the

candidates had the minimum qualifications for the job, not said to be an issue.

63.

Article 10.01 stipulates that in making a promotion: "the required knowledge and skills

(behavioural and technical) contained in thejob posting shall be the primary considerations", it being

only where there are two or more applicants equally qualified to fulfil the duties of the job that

seniority will be the determining factor. One can observe, certainly, that this kind of language is

typical in collective agreements where there are ticketed bargaining unit members looking to change

jobs or seek advancement through the ranks. Notably, the provision does not set out any strict

guidelines for how the factors are to be individually weighed or assessed.

64.

By reference to established case law, an employer nevertheless needs to have a system in

place which will measure the candidates against the stated requirements of the job in a fair and

reasonable manner, not arbitrary or discriminatory or having elements of bad faith, as has been

discussed and applied in many cases. See the summary contained in Brown & Beatty (4th ed) at topic

6:3100 referenced by counsel where such well-known disqualifying terms are raised such as

arbitrariness, discrimination, bias and/or bad faith as indicating the employer's judgement "was not

reasonable in some basic and significant respect". They state, as cited by arbitrator Chankasingh in

the A. U P.E and Alberta Health Services case, supra:

-42-

In the usual case, and particularly when the job is a skilled and technical one, the issue

is not viewed aswhether the grievor in fact possesses the requisite skill and ability, but,

rather, whether the employer's decision as to those matters was reasonable in the

circumstances. From the earliest awards it is been said that the primary function of an

arbitrator's review is to ensure that:

..• the judgement of the company must be honest, and unbiased, and not

actuated by any malice or ill will directed at the particular employee, and

second, the managerial decision must be reasonable, one which a reasonable

employer could have reached in light of the facts available. The underlying

purpose of this interpretation is to prevent the arbitration board taking over

the function of management, a position which it is said they are manifestly

incapable of filling.*

*Union Carbide Canada Ltd, (1967), 18L.A.C. 109(Weiler), cited in Canadian

Blood Services, supra

65.

Plainly the selection decision must meet the reasonableness standard on the basis of all the

facts known to the employer, including those established and assessed through the competition

process, including the interview, and not be arbitrary or discriminatory as discussed by numerous

arbitrators in their awards. In short, all things considered, it has to be an honest process.

66.

In our returning to a consideration of the Alberta Health Services award, this Board accepts

as did Arbitrator Chankasingh that it cannot be a matter of arbitral second-guessing, his having cited

the following caselaw reasoning at para. 104:

The reasonableness standard for the review of an employer's hiring decision has been

accepted by Alberta arbitration boards. For example, in Calgary General Hospital and

UNA, Local 1, Re (1992), 28 C.L.A.S. 461, the board made the following comments

about the reasonableness standard of review (at para. 19):

Aside from any evidence of bad faith, arbitrators have normally limited

the review and promotion cases to whether the procedure adopted to

measure the qualifications was reasonable. Arbitrator Beattie

summarized the nature of the inquiry in the decision of United Nurses

of Alberta, Local 33 v. Royal Alexander (sic) Hospitals, (unreported),

April 27, 1987 as follows at p. 19:

...Tobe"reasonable"anEmployer must lookatallrelevant factorsand

honestlyevaluatethecandidates.Ifithasnotperformedthatevaluation

andareasonableperson,takingintoaccountallthefactors,wouldhave

reached a different decision, aBoard should, in my opinion, overrule

the employer. Itis not, in doing so, substituting its view or second-

-43-

guessing; it is simply finding that the employer did not properly apply,

for whatever reasons, its own standards of qualifications (or, as in this

case, qualifications and ability).

67.

It is well recognized that it rests with the aggrieved employee in setting out to meet the test

of relative equality with the successful candidate to establish a prima facie case of having the

minimum qualifications and basic ability for the position, not an issue here. Itleaves open an inquiry

as to whether the employer's assessment was defective, for example incomplete or based on

irrelevant or improper grounds, and leading to a consideration of whether the selection can be

considered reasonable. This is the way the test has been expressed in case law. In this respect, the

assessment process fails if it does not meet the reasonableness test, ultimately dependent on

individual factual circumstances, which is to say an employer's not properly applying itself to

reasonably fulfillingthe competition provision requirements.

68.

Keeping in mind the Union's concern in this matter over the interview process, it bears

observing that in some cases, after carefully examining the evidence, arbitrators have found that it

was not sufficiently geared to assessing skills, ability, knowledge, experience, and other relevant

attributes, thereby not meeting the test of fairly and reasonably following the requirements of the

collective agreement. The Union's argument essentially focuses on the interview process being

deficient in structure and marking, biased and otherwise improperly handled, to the point of skewing

the selection decision and rendering it unfair and unreasonable as it was applied to the grievor so as

to be replaced by application of seniority status, or at the least showing that he should be considered

just as qualified for the Trouble Foreman position as T.B. It would either require his placement in

the position or possibly directing another competition.

69.

Withrespect totheUnion's contentionthattheinterviewprocess didnotconformwithArticle

10.01(requiring thatthe requirements inthe JobPosting shallbethe primary considerations), we find

it would be a far stretch for us to conclude that the 13areas of inquiry addressed with the candidates

were somehow not based on the qualifications and requirements set out in the posting document, or

that there was any apparent "gap" in that respect. As detailed earlier in this award, in addition to

diplomalevel training andjourneyman certification, with fiveyears experience asaTroubleman, the

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job requirements address a strong knowledge of applicable regulations and EPCOR work practices

and procedures, a demonstrated ability showing strong planning and decision-making skills, and

strong familiarization with various aspects of the job. Further, the successful candidate must

demonstrate strong interpersonal skills in dealing with people issues, including having provided

feedback, mentoring and coaching. Theperson is expected to have attention to detail, ahigh level of

technical experience together with a working knowledge of the Microsoft Office Suite products

including Excel and Word, inadditiontoexperience working with otherplatforms suchasFIT, Field

Smart, Oracle, SharePoint and IVARA. There is also a stated expectation focussing on personal

development and the willingness to increase technical and interpersonal knowledge, as well as the

successful candidate having exceptional communication skills and be a team player. Without

breaking down the interview process into itsminutiae question by question, in this Board's view the

interview process can be taken to have been organized around exploring these kind of requirements

through a series of questions covering the various areas. We are unable to find that there is any

divergence between the job requirements set out in the Posting and the manner in which the

interviewers Mr. Foster and Ms. Bishop constructed their interview program.

70.

The Union takes issue with the marking, and raises the possibility that the selection was pre•

ordained, asserting that the interview process was of no weight or value to the panel members

agreeing that T.B. was the best candidate by reason ofhis knowledge and skills, both behaviour and

technical, as covered in the Posting. It thereby raises issues of bias and arbitrariness and seeks a

finding that the process was unreasonable. In dealing with this issue the Board accepts that a

candidate for promotion relies on past demonstrated skill and ability. In this respect, T.B. may well

have entered the competition with atactical advantage over other candidates.

71.

The case law does not suggest that one's prior and ongoing connection to the same kind or

at least related duties as covered by the promotion needs to be ignored by reason of there being a

developed interview process for all candidates, nor is having worked under the supervision of Mr.

Foster. Inourviewitwas acceptable fortheEmployer todecidetoplacethepreponderance ofweight

on the interview process itself than might ordinarily be the case. Were it not to have taken that

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approach, or placed more weight on the APfRs, it would be difficult to see how anyone would be able

to measure up in a competition with such a candidate as T.B. He had received extra related skills'

training, at least when compared to the grievor, was more technology savvy, had been performing as

a relief foreman in the same scope of duties over the previous year, including administrative functions

concerning which the grievor had no current experience, and was rated in his APfR at the highest

performance level over the previous three years. To say that T.B. had a "headstart" in the process,

only recognizes that he had already established his prima facie case of having superior ability to

perform the job in question.

72.

In our considering the evidence respecting the grievor' sinterview session lasting two and half

hours and involving 13 areas of inquiry, about which there was considerable information presented,

we cannot conclude that it was handled in any inappropriate fashion or smacked of bias or

arbitrariness. The interviewers did their questioning and made their assessments, arriving at the scores

that they did basically on a consensual basis. Certainly, there were some aspects which on observation

one might like to question as difficult to see the difference in responses, but however one might like

to dissect the scoring decisions question by question, the interviewers can be seen to have applied

themselves to their role and reached the conclusions they did on a consensus basis. Plainly, during

their questioning the grievor had some awkward moments and generally showed that he would be

more comfortable working supervisory duties in the field. According to Mr. Foster the majority of

time, as much as 80% - 85% would have to be spent on administrative, planning and supervisory

duties carried out from the Trouble Centre office. The grievor acknowledged during his interview that

his administrative skills level, including the computer aspects, were not a strong point. He had not

taken any voluntary upgrader courses on any technical aspects of thejob. Perhaps just as significantly,

he did not convey any willingness to be involved in providing advice or planning concerning future

innovations. This is not a case where the evidence can be taken as revealing a reasonable finding of

equal knowledge and skills, not from these two candidates' experiential history at the time of their

being interviewed, and not from the interview itself. It should not rest with us to parse the questions

and answers from the interview process, even ifthere were some recorded responses over which one

could argue whether there was much difference between the grievor and T.B., from the outside

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observer's perspective.

73.

Inreviewing the interview process we cannot find that it is the type of situation set out in the

Lethbridge (County),supra, award where the interview questions bore too little relation to the criteria

in the job posting. In our view the in-depth questioning during the interview process was closely

related to the job requirements and could be used as a proper significant tool for determining the best

candidate. The questions can be seen to involve areas of knowledge and skills (behavioural and

technical) required for thejob. Itwas an interview situation quite unlike the British Columbia Public

School Employers Assn., supra case in that it was not a matter of the interviewers focussing on how

the candidate "came across" during the interview, i.e., eye contact, body language, composure etc.

This was not a situation of glossing over the interview obligation by a facile and surface look at the

candidates. The panel members were looking for well considered and organized responses to detailed

questions concerning the candidate's knowledge and skills (behavioural and technical) applicable to

the very responsible Trouble Foreman position. They assessed T.B. ashaving provided better answers

than the grievor and to dislodge their consensus conclusion at this point, would in our view amount

to second-guessing their reasoned assessment.

74.

In all, we are satisfied that the interviewers were working in a reasonable and comprehensive

way to assess the candidates' suitability on the basis of the stated job requirements as the primary

considerations, examined through the interview process. In our view the significance of the interview

process, given the hiring circumstances apparent in this matter of filling the highly responsible

Trouble Foreman's position, was appropriate, and the assessment process itself suitably

understandable.

75.

We conclude that the Union has not demonstrated that there was any bias or arbitrariness, or

bad faith, nor substantiated itsposition that the Employer acted unreasonably inthe selection process.

76.

For these reasons, we must respectfully dismiss this grievance.

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77.

I am authorized by the Board to issue this award as a majority decision, with Employer

Nominee Mr. Chris Lane, Q.C., concurring and Union Nominee Mr. Paul McKnight dissenting. He

will be issuing a written dissent.

DATED at Calgary, Alberta, this 6th day of April, 2022.

"Concurring"

Chris Lane, Q.C., Employer Nominee

"Dissenting"

Paul McKnight, Union Nominee

I have taken some time to consider the majority decision and I unfortunately cannot agree with

the result. I know that arbitrators have to be careful about not interfering with an employer's

choice for a promotion, but in this case, the process used by EPCOR and the outcome was not

proper or fair under the Collective Agreement, and the grievance should be granted.

Article 10.01 of the 2018-2021 EPCOR / IBEW 1007 Collective Agreement says this about

promotions:

10.01: In making promotions to vacant jobs coming within the jurisdiction of the Union,

the required knowledge, and skills (behavioral and technical) contained in the job posting

shall be the primary considerations, and where two (2) or more applicants are equally

qualified to fulfil the duties of the job, seniority will be the determining factor.

In United Nurses of Alberta, Local 33 v Royal Alexander Hospital April 27, 1987, the Arbitrator

said an employer must look at all relevant factors and honestly evaluate the candidates. If it has

not performed that evaluation and a reasonable person, taking into account all the factors,

would have reached a different decision, a Board should overrule the employer. It is not, in doing

so, substituting its view or second guessing; it's simply finding that the employer did not properly

apply, for whatever reasons, its own standards of qualifications.

The arbitrator in the Lethbridge (County) v Canadian Union of Public Employees, Local 2800,

2009 case said this about the law for selection grievances:

Whatever the criteria used, the assessment of candidates against the criteria in a job

competition must be conducted in a systematic and objective fashion, all candidates have

to be treated fairly and consistently, and management must be able to demonstrate and

explain how the results were reached. The MacMillan Bathurst case cites Brown

and Beatty, Canadian Labour Arbitration (3d) on this point as follows (page 68):

Regardless of the type of seniority clause which the parties have included in their

agreement, it is also firmly settle that an employee's claim that he was improperly

denied a particular job will prevail if it could be established that the standards and

criteria relied upon in making itsjudgement .... were unclear or subjective, .... or

were not specified inthe job posting ,or did not constitute a balanced

assessment.

This passage accurately reflects the prevailing case law.

In my view, management has failed to establish that the candidates were assessed

systematically against the job posting criteria.

Accordingly, IconcludethattheevidenceofthejobcompetitionconductedunderArticle

23(d)failedtoestablishthatMr.Fuhrmannwasthebettercandidate. Indeedthe evidence

isinsufficienttoestablishhowthefivecandidates comparedintermsofthe knowledge,

qualifications, andskillscontainedinthejobposting. Forthatreason, Ifind that the

Employer violated the collective agreement inthe selection process that awardedthe

positiontoMr.Fuhrmann.Theselectionthereforemustbesetaside.

Based on the evidence we heard at the hearing, EPCOR did not meet the test from the

Lethbridge case. Isaythisforthesereasons:

1. Both EPCOR witnesses admitted that there was nothing that showed how EPCOR had

compared the candidates to each of the job requirements listed in the job posting to show

how each candidate compared to the other applicants. The arbitrator said in the

Lethbridge case that "the assessment of candidates against the criteria in a job

competition must be conducted in a systematic and objective fashion". This was never

done by EPCOR, and it was a major concern for the Union. There was nothing showing

that EPCOR systematically or objectively assessed the griever or Mr. Boschman

against all of the job posting criteria.

2. EPCOR did not look at manager's comments on the APFRs, and both EPCOR witnesses

confirmed that they had not seen or considered those APFR comments when making the

decision to pick Mr. Boschman over the griever. EPCOR admitted they did not look at

or give any weight to the APFR comments when making their rankings or scores. The

interview panel only looked at the APFR scores and gave points for the 3 or 4 score on

the APFRs, for a total of 10% of the overall marks. The manager's

comments in the APFRs talk about most of the requirements in the job posting for the

Trouble Foreman position, and clearly show that the griever was very qualified for the

position. This information was provided for a 3-year period leading up to the posting,

but it was never looked at by EPCOR.

3. The interview was 90% of the scoring and was basically the only tool that EPCOR used

to pick the successful candidate. The cases the Union gave us say that this is a big

problem for the employer if it cannot show how it assessed the candidates objectively,

and that the employer also looked at all relevant sources of information. A good

interview score often just means the winner was good at being interviewed. EPCOR

also told the candidates it would be doing reference checks and the griever provided

references but EPCOR did not do any reference checks and just picked the candidate it

wanted all along. The Trouble Foreman position is very important to EPCOR's

operations, and picking the Foreman based on an interview was not a proper, fair, or

transparent approach inthis case.

4. Mr. Foster stated that more than half the questions that he picked for the interview were

about "leadership", which was not what the job posting says.

5. On questions 1 and 2 of the interview there was no scoring matrix to compare the

answers to the marks given. Questions 14 and 15 were not on the job posting, so how is

this fair to score someone without a scoring matrix or score someone on questions that

were not listed in the job posting?

6. The interview questions did not cover off key parts of the job posting. For example, the

job posting required "strong knowledge of applicable regulations, such as EPCOR work

practices and procedures, ECUC and EPCOR safety manual" and that was not covered

in the questions. The posting required "strong familiarization with Aerial and

Underground Standards, technical prints and schematics, and Distribution Automation".

EPCOR did not ask questions on these key parts inthe interview. EPCOR did not look

at the APFR comments that specifically talked about these requirements, and did not ask

about these requirements in the interview questions. So how did EPCOR decide who

was more qualified on those greatly important requirements for the Trouble

Foreman position? Where is the evidence that EPCOR properly assessed the

candidates onthese important criteria?

7. EPCOR created the list of interview questions and also created the "ideal manager's

response" that was used for scoring the answers. If the candidate got the ideal manager's

response, then he would get 5 of out 5 marks. However, the EPCOR witnesses agreed

that they did not always follow the "ideal managers response" that was listed in the

marking key when scoring the interview answers. Mr. Foster admitted that the interview

panel "went off script" and gave good marks for "good answers" which to me makes the

answers very subjective. For example, on "Ownership" question 14, the successful

candidate got 4 out of 5 marks but nothing in his answers were part of the ideal Managers

response. The same thing happened for question 15. How is that a fair, objective, or

transparent process?

8. The griever also got a 1 out of 5 on "Safe Work Practices", but he received great

comments in his APFR's on safety. If they had used the comments from the APFR's on

safety, or asked him about his experience that shows up on the APFRs, he would have

done very well on the requirements. On interpersonal skills, feedback, mentoring and

coaching, the griever got a poor interview marks but he received very good comments on

the same requirements over 3 years in his APFRs.

9. On the remaining questions from page 8 to page 18 of the interview questions, the griever

was not given the same latitude as the successful candidate on his answers. In some

cases, he answered in greater degree and had better answers when the EPCOR notes are

compared to the ideal manager's response, but he almost always scored less than the

successful candidate.

10. EPCOR's witnesses also said that sometimes the answers they wrote in the interview

booklet did not line up with what the candidate actually said. Ifthat is right, then how

can EPCOR say that they did an objective and systematic assessment of the candidates

for all of the job requirements inthe job posting?

11. The Manager (Mr. Foster) had been in the Trouble section for less than a year before he

created the job posting and picked the interview questions, and there was no subject

matter expert on the interview panel by the time the griever was interviewed. The

manager's office was right beside the successful candidate's office, and he talked to the

successful candidate much more often than any of the other candidates. Itwas very

important that EPCOR did a real assessment of the job posting requirements with all of

the information available about the candidates, and notjust pick someone who worked

beside the manager based almost entirely based on a badly flawed interview process.

The selection process did not meet what Article 10.01 and the law required. I would have granted

the grievance and would have ordered the griever placed into the Trouble Foreman position, or

would at least have ordered EPCOR to redo the process so that everyone got treated fairly and

each candidate was properly assessed on all of the job requirements in the job posting.

Paul McKnight