AD HOC Ė 222

IN THE MATTER OF AN ARBITRATION

BETWEEN:

NORTHWESTEL INC.

(the "Company")

AND

 

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL NO. 1574

(the "Union")

IN THE MATTER OF SIMON BROADHURST

 

 

SOLE ARBITRATOR: Dwayne W. Rowe

 

There appeared on behalf of the Company:

Mr. Timothy S. Preston, Q.C.

 

And on behalf of the Union:

Mr. Rolland S. Boone

 

The hearing for this arbitration was held at Whitehorse, Yukon on January 19, 1988.

AWARD

NorthwesTel Inc., (the Company), and the International Brotherhood of Electrical Workers, Local Union 1574, (the Union) are parties to a collective agreement pursuant to resolve the grievance by making a final and binding decision.

The Issue is whether or not the grievor was properly considered for the vacant, permanent position of Computer Operator 1 in accordance with the provisions of the collective agreement in effect between the parties.

Article 9 of agreement entitled: "FILLING POSITIONS" sets forth the manner in which a permanent position with the Company is to be filled. Basically, Article 9 requires the Selection Committee, (composed of both Union and Company representatives ) in the event of a vacancy for a permanent position to refer to the Job Preference List ( J.P.L.). The J.P.L. is an ongoing list of interested company employees who have submitted on a form (Appendix A of the collective agreement ) indicating their preference to be considered for particular positions should same be vacant or became vacant.

Fred Stewart, a member of the committee, Testified the Committee met four times a year to review the J.P.L. and update material. The process described by Fred Stewart was that the Selection Committee first looked at the J.P.L. searching for qualified persons. If more than one qualified person was on the J.P.L. for that particular vacant position, then 9.05(b) of the collective agreement came into play. The relevant portion of 9.05(b) is set out below:

"The Union/Management Committee will first consider candidates living at the headquarters of the vacant permanent position who have indicated a preference for such vacancy on their Job Preference List. Selection will be based on seniority, the skills and/or technical ability being sufficient to perform the work, with consideration being given to the demands of service."

In the event no qualified persons were on the J.P.L., including no employees headquartered at other locations who were willing to transfer, then consideration was given by the Selection Committee to those company employees who although then unqualified could in fact do the job adequately with some training. However, the company in most cases and certainly in this matter, requires such a person to pass pre-training examinations. The requirement is to be found in 9.05(d) of the collective agreement and is set out below:

"In the event a permanent position remains unfilled after the Selection Committee has reviewed employee preferences as stated in Article 9 above, the Selection Committee will further consider the J.P.L.ís to identify applicants who have passed the pre-training examinations or have demonstrated by past performance their capability to complete the formalized training. Applications will be considered on a seniority basis with regard being given to the demands of service."

In this case, it is agreed by the parties that the grievor was on the J.P.L., was not then qualified for the position of Computer Operator 1 and that he undertook two separate examinations. It is further agreed the grievor took a computer literacy (aptitude) examination and received the passing grade of "B". It is further agreed the grievor took a typing test and failed it, achieving a score of only nine words per minute (w.p.m.). A passing grade on the typing test had been set by the Company as 35 w.p.m. As a consequence of failing the typing course the grievor did not get the position of Computer Operator 1 and the position was filed thereafter by a person who had previously worked for the company and was also a qualified Computer Operator 1.

The issue is centered around whether or not the selection process was unfair to the grievor in that undue weight was placed on the typing test coupled with insufficient consideration being given to the grievorís other experience within the Company which would render him otherwise capable of adequately filling the position of Computer Operator 1.

A great deal of evidence was heard from all the witnesses as to the nature of the position and duties of Computer Operators 1 and 2. Much of the evidence was directed to examining the correlation of typing skills to the function of a computer operator. I have summarized what I believe to be the core of the evidence of each witness with regard to the issue of typing skills.

Fred Stewart, a technician who services computers, testified that while typing speed would be an asset, typing in commands to a computer didnít really require much speed. He has never worked as a computer operator. He also stated he thought the 35 w.p.m. minimum typing speed had been in effect when the Company was owned by a predecessor corporation many years ago.

Simond Broadhurst, the grievor, had been employed with the Company since May of 1986 as a part-time toll operator. Performance of those duties involved processing long distance calls, information assistance and involved the use of a keyboard and computer screen. A photograph of the equipment was introduced as exhibit #2 in these proceedings. Inspection of the photograph reveals that while there was a keyboard configuration generally to the equipment (SP-1 TOPS) the keys were function keys rather than numbers, letters, punctuation marks or other symbols. The grievor testified he took a three week training course to learn the SP-1 TOPS and that he has operated his own personal computers. Prior to taking the typing test in June of 1987, he had not practiced typing other than to familiarize himself with the typewriter keyboard. He felt the greater emphasis should be placed on the computer literacy or aptitude aspect and that his keyboard ability on the SP-1 TOPS was transferable to the computer.

Geoffrey Capp testified he worked as a Computer Operator 1 on a part-time basis for several months, spending up to four weeks at a stretch on the computer job. He has a total of 6 1/2 years with the Company and now is employed as a permanent Accounts Receivable Clerk. He testified that, in his opinion, about one and one-half hours per shift was actually spent typing on the computer keyboard. As well, the amount of characters required to be typed for the majority of commands to the computer involved six to nine characters and a lengthy command might entail the use of forty characters. he estimated his own typing speed at between 30 to 40 w.p.m.

In cross-examination Geoffrey Capp conceded he had been only a part-time operator and was not fully proficient at that job as a consequence of his part-time status and experience. Counsel for the Company asked Geoffrey Capp to examine a particular command to the computer and he agreed the command had a total of 78 characters excluding colons (:), commas (,) and square brackets ([]).

Anil Soni, Manager of Information Systems for the Company gave evidence. He stated Geoffrey Capp had worked part-time as a computer operator but that Cappís speed was slow. Anil Soni further testified that, in his opinion, a Computer Operator 1 was actually performing the physical task of typing for 30 to 40% of an average shift on a daily basis. He also described the use of electronic mail involving typing and felt the rigorous demands of a tight daily schedule required both speed and accuracy in typing skills. In a computer emergency, he stated, operators needs to be quick, resourceful, knowledgeable of the entire system, and able to activate that system by means of the keyboard. In his opinion, the typing skills should be automatic. He stated that an operator with poor speed and /or accuracy in typing skills would slow down the entire Data Center especially when a daily schedule had within it components with a time limit.

Pat Ovens is a Computer Operator 2 for the Company. She is Senior Operator and spends more time re-writing procedures than the other operators. Pat Ovens testified that the shifts of the Computer Operator 1ís involve 30 to 40% typing. She testified in detail as to the method of giving commands to the computer, pointing out "to talk to the computer is all done through typing". She gave examples of a Morning Backup Procedure and went through the sequence explaining the numerous commands required to be typed on the keyboard. In her opinion, a consequence of slow speed and/or accuracy would bog down the schedule and could lead to costly errors in terms of time. She described daily use of electronic mail several times per shift and the need to type this mail. Waybills, were typed either on a small computer or on an electric typewriter. In terms of properly shutting down the computer, Pat Ovens testified speed and accuracy in typing were very important to avoid "trashing the system" through error or slow response. In her view from the standpoint of years experience in Data Centre, a person with 9 w.p.m. typing speed would cause serious delays which would impact on other departments. Certain information, for example, had to be to Toronto each day before 5:00 p.m. Yukon Time (P.S.T.).

Judy Corley is Manager of Human Resources for the Company and held that post since June of 1984. She explained the selection process and confirmed the grievor had passed the Computer Literacy (Aptitude) Test and failed the typing test. She stated the minimum typing requirement for the computer position was 35 w.p.m. and had been in effect for as long as she had been with the Company . She explained the word "qualified" is defined as: "Able to do the job with one week training". The Company did not offer typing courses. She also stated the Company, at the request of the Union, had in the past 3 or 5 years, examined every clerical position to determine if typing really was a requirement. In a couple of instances, the typing requirement was found to be anachronistic and was therefore removed.

Mr. Boone submitted, on behalf of the Union, that the grievor did in fact pass one of the two pre-training examinations. He submitted the 35 w.p.m. requirement for typing was not relevant and that the Selection Committee erred in not paying closer attention to the wording of 9.05(d), specifically the word: "or [underlining is mine] have demonstrated by past performance their capability to complete the formalized training".

Mr. Boone further argued the Selection Committee did not consider the grievorís keyboard experience as a Toll Operator and had it properly done so, there would have been no reason to exclude the grievor from the position of Computer Operator 1. Mr. Boone therefore requested that I do one of the following: Firstly, appoint the grievor to the position of Computer Operator 1 with retroactive pay or secondly, to refer it back to the Selection Committee with the direction that the Committee consider the grievorís keyboard experience on the SP-1 TOPS.

Mr. Preston, on behalf of the Company, submitted the Company had the prerogative to set qualifications including pre-training examinations. He argued the examinations involved in this case were fair and reasonable and bore a direct relationship to an integral skill required to properly perform the job.

It is clear from the authorities that any standards utilized by an employer must be fair and reasonable. In this matter, I am satisfied the typing test (Exhibit #4) was a fair and reasonable test as was the minimum passing mark of 35 w.p.m. I also find, on all of the evidence, that typing skills both as to speed and accuracy not only bear a reasonable relationship to the job of Computer Operator but are vital and integral to properly functioning as a Computer Operator. The test is not whether or not the grievor, on starting the job, would be as capable as his or her predecessor or others in the office, but that he or she be capable of producing the quality and amount of work normally required having regard to all the circumstances. In this case, I am satisfied the grievor, with a demonstrated capability of only 9 w.p.m. on a typing test was not qualified for the position of Computer Operator 1.

There is a distinction between being originally qualified and, hopefully becoming more proficient as experience is gained at the job, and the situation as before me where the grievor was not qualified to even begin work as a Computer Operator 1. The J.P.L. form ( Appendix A - page 110 of the collective agreement ) at the second paragraph reads as follows:

"All qualifications, other than Ďin Companyí training which an employee would like recorded for future consideration may be listed on the back of the form."

By setting out such qualifications on the back of the form, an applicant would enable the Selection Committee to assess such information in the face of a failure on a pre-training examination. For example, an applicant might have a bad day on a typing test and as a consequence has failed miserably. However, if the J.P.L. form had listed on it the applicantís extra-company typing experience of X number of years, a warning bell would go off for the Selection Committee. Then the Committee could look at 9.05(d) with a view to determining whether, in spite of the failure of the test, the applicant had "demonstrated by past performance their ability to complete the formalized training". Such was not the case before me and I find the keyboard experience of the grievor on the SP-1 TOPS not to be of such a nature as to over-ride the reasonable requirement of achieving 35 w.p.m. minimum on a typing test.

I dismiss the grievance.

DATED this 21st day of January, 1988, at Whitehorse, Yukon.

(signed) Dwayne W. Rowe

Arbitrator