None of six union members passed proficiency test
An aerospace company quickly needed to hire a new machine programmer after the incumbent worker quit his position.
After interviewing six internal applicants, the company decided to give the job to a worker who was not a member of the union. It said none of the internal candidates were qualified and it needed to hire someone who would be able to master the complex computer-programming language that powers lathes and mills.
An arbitrator sided with the employer and dismissed the union’s grievance.
David Xu was employed by Northstar Aerospace in Milton, Ont., but in a non-union capacity. He eventually replaced Jason Stengel who resigned on Aug. 14, 2015.
The six workers were given a two-part test of their knowledge of machine programming, and a verbal interview. The test passing benchmark was established at 75 per cent, while the interview pass would be 50 per cent.
None of the six passed the test.
After Xu was tabbed to replace Stengel, the union, Unifor, filed a grievance on behalf of the six workers. Eventually, three remained attached to the grievance after the other three bowed out: Bhanubhai Patel, Ivan Drevensek and Devendra Bhatasana.
In the test results, Drevensek scored the highest for the interview portion, at 45 per cent, while Bhatasana’s 68 per cent led the group’s test results.
Xu received scores of 63 per cent for the interview and 82 per cent for the test.
Bosko Maric, engineering manager for Northstar, conducted the interview and testing. He said none of the original six applicants had experience with the latest version of Mastercam software and would have needed “extensive training” to get up to speed in programming the machine.
He pointed out Xu’s knowledge of the software, from seven years of experience, and said he provided examples of previous work done, even though it was not required for the interview. Maric said he marked Xu harder than the other workers, but he still passed both components.
In the collective agreement, there is language that allows the company to go outside the bargaining unit to fill a position when no internal candidates are qualified. However, there is also a provision that allows for a 30-day training period if bargaining unit candidates require it to fill a posted job.
Unifor argued this qualified as a “threshold” clause that would automatically award a position to the most-qualified worker. It also said the testing process was arbitrary.
But the word “may” in the articles meant the employer has latitude in its hiring decisions, said arbitrator John McNamee.
“The fact that the company may waive knowledge and experience qualifications in respect of an internal applicant in certain conditions, does not oblige it to do so except, as between an internal applicant who has the required knowledge and an external applicant who does not have both the requisite knowledge, skill, ability and experience. The word ‘may’ in this context is permissive and not imperative,” said McNamee.
The union also argued that a training period should be ordered in this case, so that one of the affected employees could eventually qualify for the position.
“This collective agreement permits the employer to provide a training period at its discretion under certain circumstances but it does not grant to an arbitrator the authority to overrule a decision not to grant a training period,” said McNamee. “In the absence of evidence, or even an allegation, that the employer acted unreasonably or in bad faith, I am unable to accede to that request.”
Reference: Northstar Aerospace and Unifor Local 112. John McNamee — arbitrator. David Francis for the employer. Scott McIlmoyle for the employee. Oct. 16, 2016.
