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HomeMy WebLinkAbout2013-0660.Petrovicz.17-05-24 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2013-0660, 2013-2554 UNION#2013-0378-0037, 2013-0378-0092 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Petrovicz) Union - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Richard M. Brown Vice-Chair FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Adrienne Couto Liquor Control Board of Ontario Counsel HEARING April 25, 28, May 8, 2017 - 2 - Decision [1] The grievor has worked in the Durham warehouse since 2003. He filed a grievance dated July 19, 2013 protesting the rejection of his application for a training opportunity working as a service person in the maintenance department. The parties agree the granting of such opportunities is an exercise of management rights under the collective agreement. They also agree the employer must act in good faith when awarding training opportunities. The union contends the rejection of the grievor’s application was not made in good faith because the employer’s decision was tainted either by nepotism or by a desire to block the grievor’s career progression. [2] The allegation of antipathy towards the grievor relates, at least in large part, to Bruce Pizzolato who was at the relevant time director of the warehouse and the most senior manager on site. The union’s particulars alleged Mr. Pizzolato blocked the grievor’s career progression because he filed a health and safety grievance in the spring of 2010. In a decision dated October 23, 2016, I sustained the employer’s preliminary objection that the facts alleged, if proven, would not constitute prima facie proof of reprisal: The union relies exclusively upon the filing and settlement of the grievance. These facts fall well short of prima facie proof that the warehouse manager subsequently retaliated against the grievor. Accordingly, the union may not lead evidence in support of the allegation of reprisal. (para. 11) This ruling precluded the union from leading evidence about the health and safety grievance. During the hearing of this matter, the union led no other evidence to establish a motive on the part of Mr. Pizzolato, or any other manager, to block the grievor’s career progression. [3] The allegation of nepotism arises from the selection of Jason Nicholson to fill the training opportunity. Mr. Nicholson is the nephew of Bruce Pizzolato. The union contends the appointment of Jason Nicholson on this occasion was part of a pattern of nepotism. In my earlier decision, I dismissed the employer’s preliminary motion contending the union’s particulars relating to nepotism did not disclose a prima facie case of nepotism: - 3 - The particulars allege on three occasions, in the space of two years, a close relative of the warehouse manager was selected to fill a training opportunity or vacancy for service person, on one occasion the class of eligible employees was revised in a way that rendered the successful relative eligible to apply, and on another occasion the relative selected was not tested as required by the posting. I note the employer knows much more than the union about the basis for management’s decisions. These observations led me to conclude proof of the facts alleged would be sufficient to shift to the employer the onus of proving the conduct of managers was based upon considerations permitted by the collective agreement and not nepotism. (para. 17) The hearing in this matter was largely devoted to evidence relating to the allegation of nepotism. I [4] The duties of a maintenance service person are set out in the job description: • Performing preventative maintenance, cleaning, troubleshooting and fault clearing routines of a minor nature on the material handling system or building facilities • Assisting maintenance electricians and maintenance mechanics or others as necessary and as directed in maintenance, repair, overhaul or installation work • Assisting in maintaining written records of daily activities • Assisting in dispersing unusual obstructions or hazards and plant fire brigade II [5] The original memo offering the contested training opportunity is dated January 21, 2013 and signed by Larry Winstone. He was manager of the warehouse maintenance department from 1999 until his retirement in the spring of 2015. The memo invited “permanent full-time employees” to apply. The memo also stated: Candidates will have to write an aptitude test and obtain a grade of at least 65% in order to qualify. Successful candidates will be picked based on the results of a written test plus satisfactory performance, attendance, seniority and ability to physically perform the job functions. To be qualified for this training opportunity, candidates must have demonstrated and proven mechanical and electrical aptitude and provide a certificate demonstrating successful participation at a technical school or technical - 4 - “continuing education” courses related to industrial maintenance and have the ability to read mechanical and electrical drawings. This memo indicates a copy of it was sent to Mr. Pizzolato and to the manager in charge of the operations side of the warehouse. [6] The grievor was the only permanent full-time employee to apply in response to this memo. He had already written the aptitude test in November of 2011, when he applied for a posted vacancy, obtaining a mark of 30%. The grievor’s application in 2013 mentioned taking a machine shop course at Durham College between October of 1994 and March of 1995. There was no mention of any training taken after his test in November of 2011. Nor was there any mention of related work experience. His resume did indicate he operated a small business providing gardening services including “lawn care” and “planting of trees and shrubs” but made no mention of his role maintaining gardening equipment. [7] The grievor’s application for the training opportunity offered in January of 2013 was neither accepted nor rejected. [8] The training opportunity was again advertised in a memo dated May 22, 2013 and signed by Mr. Winstone. This memo was also copied to both the warehouse director and the manager in charge of operations. It expanded the scope of the competition by inviting applications from all employees, not just permanent full-time employees. Mr. Winstone testified this change was made in the hope of securing a larger pool of applicants. [9] The qualifications listed on the revised memo were substantially the same with one exception. The revised memo required an excellent attendance record, not merely a satisfactory record. Earlier postings for this position had contained differing requirements relating to attendance: a 2006 posting specified excellent attendance, whereas a posting in 2011 referred to satisfactory attendance. Subsequent postings consistently referred to excellent attendance. [10] The grievor again applied for the job opportunity advertised in May of 2013. Jason Nicholson and Tyler Acton, both seasonal employees, also applied. The grievor had greater seniority than either of them. Mr. Nicholson was senior to Mr. Acton. - 5 - [11] Having already taken the aptitude test in 2011, the grievor did not rewrite it in 2013. He was not invited to rewrite the test and did not ask to do so. I digress to note he did retake the test in the summer of 2015 and obtained a mark of 31% [12] Jason Nicholson and Tyler Acton had not previously taken the test. They took it after applying for the training opportunity. Both obtained a mark exceeding 65%. [13] Jason Nicholson provided a certificate from Durham College showing he had completed a one-year program in Electrical Techniques. He testified about also providing a Record of Employment showing he had worked as an electrical technician at Canada’s Wonderland and a performance appraisal showing his work there was viewed as more than satisfactory. [14] Mr. Winstone reviewed the attendance and discipline records of all applicants. Neither the grievor nor Jason Nicholson had a disciplinary record. Counting only absences due to sickness, the maintenance manager noted the grievor had missed a total of missed 19.6 days in 2010, 14.7 in 2011, 15 in 2012. This review indicated Jason Nicholson had missed 6.9 days in 2012, 10.2 in 2011 and 8.2 in 2012. Mr. Winstone testified he noted a lot of the grievor’s absences occurred on Mondays, Fridays or days following or preceding a statutory holiday. [15] The employer’s attendance criteria for promotions focus on the three preceding years and treat as “unacceptable” more than 15 days of absence, due to sickness or without pay for reasons other than sickness, in two or more years. These criteria also indicate a pattern of absences is to be taken into account. [16] The employer’s attendance criteria do not distinguish between permanent employees and seasonal employees who are scheduled for fewer hours. In reviewing attendance records, Mr. Winstone appears to have made no allowance for Mr. Nicholson’s seasonal status. Pro-rating the 15 day standard, based on his scheduled hours, would not have altered the determination that his attendance was satisfactory. [17] The maintenance manager met with the grievor on June 19, 2013 to discuss his application. Mr. Winstone testified he asked the grievor to provide a certificate indicating he had successfully completed the machine shop course. No such certificate was - 6 - provided. The grievor testified this course constituted the first year of a five-year apprenticeship as a tool and die maker. Having completed only one-year, he did not obtain a certificate. He later contacted Durham College to request some sort of documentation and was told the college no longer had records from the 1990’s. There is no evidence the grievor ever relayed this information to Mr. Winstone. The grievor did tell the maintenance manager about recently being denied tuition assistance to take an industrial maintenance course. [18] Also at the meeting on June 19, Mr. Winstone informed the grievor that his attendance had not been satisfactory. That meeting ended with the maintenance manager saying the grievor would be considered for a future training opportunity if he improved his attendance and obtained a certificate. [19] The training opportunity was granted to Jason Nicholson. Mr. Winstone testified he made this decision based on Mr. Nicholson’s test score, attendance record and certificate of training. [20] The grievor sent a note to the maintenance manager on July 11, objecting to the appointment of someone with “management ties.” The note went on to say; “I seem to get denied everything I apply for, pretty sure my problem comes from the top of management.” I understand the “top of management” to refer to Mr. Pizzolato. [21] When testifying, Mr. Winstone admitted knowing about the family relationship between the successful candidate and the warehouse director but denied being influenced by this factor. He also testified the director played no role appointment of his nephew. Asked about why Mr. Pizzolato and the operations manager received copies of the memos advertising the training opportunity, Mr. Winstone replied they needed to know employees from the operations side of the warehouse were being invited to apply for a maintenance position. III [22] The union contends the granting of the training opportunity to Jason Nicholson in the summer of 2013 was part of a pattern of bad faith in the awarding of training opportunities or job postings for the position of maintenance service person. - 7 - [23] A vacancy for this position was posted in December of 2013. The staffing request which led to this posting indicated the vacancy arose from a retirement. The request was approved by Mr. Pizzolato, as warehouse director, and by the person to whom he then reported. [24] The grievor did not apply for this posting. Jason Nicholson was the only applicant. Having recently passed the aptitude test, Mr. Nicholson was not retested. He was interviewed by a panel of three: Mr. Winstone; Dragoslav Neskovic, the engineering manager to whom Mr. Winstone reported; and Pauline Kingdon from Human Resources. Mr. Nicholson received a score of 53/70 from Mr. Winstone, 54/70 from Mr. Neskovic and 55/70 from Ms. Kingdon. [25] Mr. Nicholson was appointed to the position based on the unanimous assessment of the panel. He was notified of his appointment in a letter from Human Resources dated January 30, 2014. There is no indication on this letter that a copy of it was sent to Mr. Pizzolato. On February 11, he endorsed the panel’s choice of candidate by signing their report. Mr. Winstone testified the signature of the warehouse director was a formality, saying he played no role in the selection of the successful candidate. [26] Additional training opportunities were advertised in May of 2014. The memo to employees announcing these opportunities was copied to Mr. Pizzolato and to the manager in charge of operations. [27] The grievor did not apply at this time. Of the four employees who did apply, three were successful: Alan Nicholson, Tyler Acton and Darnell Janes. [28] Alan Nicholson is the father of Jason Nicholson and the brother-in-law of Bruce Pizzolato. Tyler Acton parents were both managers on the operations side of the warehouse before they retired in 2011 and 2012 respectively. When testifying, Mr. Winstone denied being influenced by these family relationships. [29] Darnell Janes and Jason Nicholson socialized outside of the workplace. When testifying, Mr. Nicholson described their relationship as that of “friendly acquaintances.” There is no evidence Mr. Winstone was aware of their friendship. - 8 - [30] Tyler Acton had taken the aptitude test and passed it when he applied for the previous training opportunity. He held three certificates from Durham College: HVAC techniques; gas 3 technician; and electrical technician. [31] Alan Nicholson and Darnell Janes were appointed to this training opportunity without being tested. Neither of them held a certificate relating to industrial maintenance. In his testimony, Mr. Winstone attributed their appointment to circumstances relating to new SPL pallet loading equipment. He testified this equipment was “very susceptible” to malfunctioning and causing a major disruption in warehouse operations. The task of trouble shooting malfunctions had initially been assigned to employees on the operations side of the warehouse. Frequent breakdowns prompted a decision to reassign this work to the maintenance department, creating an urgent need for additional maintenance personnel to perform it. While employed in the operations department, Messrs. Nicholson and Janes had worked on the pallet loading equipment, having been trained in its operation by the contractors who commissioned it. Mr. Winstone described Alan Nicholson as the employee then “most knowledgeable” about the operation of this equipment, saying maintenance mechanics and electricians had sought Mr. Nicholson’s advice about how to resolve problems with this machinery. I note a subsequent job application by Alan Nicholson indicates he had operated this equipment since February 2013. [32] There was another posting for permanent positions in November of 2014. The staffing request preceding this posting states additional staff were required to support the recently acquired pallet loading equipment. This staffing request was also approved by Mr. Pizzolato and his superior. [33] In a decision dated October 25, 2016, I ruled the grievor was not an applicant for this posting because he failed to follow the proper procedure for applying. Tyler Acton was one of four seasonal employees whose applications were rejected. [34] Alan Nicholson and Darnell Janes were the only permanent full-time employees to apply. Their attendance and disciplinary records for the three preceding years were reviewed by Ms. Kingdom. Mr. Nicholson had perfect attendance in 2011 and 2013 but missed 22 consecutive days in 2012. Mr. Winstone testified he disregarded this - 9 - absence because it was a “one-time event” Mr. James had missed 13.6 days in 2011, 16.2 in 2012, 14.9 in 2013. Mr. Winstone testified Mr. Janes had indicated his high rate of absenteeism in previous years was due to medical and family issues that had been resolved. This explanation was consistent with the fact he missed only 7.5 days between January and November of 2014. [35] Alan Nicholson had received no discipline in the preceding three years. Mr. Janes received a one-day suspension for failing to report for overtime shifts on two consecutive days in 2013. Ms. Kingdon’s notes of her review indicate Mr. Janes had submitted a doctor’s note in 2013 about “working overtime hours due to a medical condition.” [36] Alan Nicholson and Darnell Janes were the successful applicants for this posting. Each received a letter from Mr. Winstone appointing him to the position. These letters were copied to Mr. Pizzolato. [37] The employer led documentary evidence showing Jason Nicholson had previously applied without success for two postings for the position of service person, once in 2006 and again in 2011. Mr. Nicholson testified he also applied unsuccessfully for other positions in the maintenance department including janitor, building maintenance, storekeeper and scheduler. With the exception of one posting relating to building maintenance, he was not granted an interview on any of these prior occasions, all of which occurred during his uncle’s tenure as director. Jason Nicholson also testified he and his uncle never discussed his applications for training opportunities or postings. III [38] Union counsel argued the rejection of the grievor’s application for a training opportunity as service person in 2013 undermined his seniority rights because permanent appointments to this position are typically awarded to someone who has had such an opportunity. Noting bad faith is difficult to prove, counsel urged me to consider all of the circumstances, including the way later training opportunities and job postings were filled. - 10 - [39] In relation to the 2013 training opportunity, counsel for the union cited a number of alleged irregularities. The initial memo was addressed to permanent full-time employees, the grievor was the only applicant in this category, and Mr. Winstone made no response to his application. The training opportunity was then opened to all employees and the criterion for attendance was changed from satisfactory to excellent. The grievor was not offered an opportunity to rewrite the test. His machine shop course was given no weight. Mr. Winstone made no effort to determine whether the grievor’s past absences were due to issues that had been resolved. The maintenance manager also ignored Jason Nicholson’s seasonal status when reviewing his attendance. [40] Turning to the 2014 training opportunities granted to Alan Nicholson and Darnell Janes, union counsel noted they were not required to take the aptitude test and neither of them held a certificate relating to industrial maintenance. Counsel suggested Mr. Janes attendance record was no better than the grievor’s and noted Mr. Jane’s had received a one-day suspension, whereas the grievor had been discipline free in 2013. I was urged to conclude Mr. Winstone’s selection of Mr. Nicholson and Mr. Janes in 2014 was not consistent with the maintenance manager’s rejection of the grievor in 2013. [41] Union counsel also relied on Mr. Pizzolato’s signature on staffing requests leading to the job postings in 2013 and 2014 as well as on the recommendation to award a permanent position to Jason Nicholson in late 2013. [42] Employer counsel submitted Mr. Winstone’s decision to reject the grievor’s application for a training opportunity in early 2013 was based upon three qualifications: satisfactory attendance; the aptitude test; and a training certificate relating to industrial maintenance. I was urged to conclude these qualifications reasonably related to the job in question and Mr. Winstone acted reasonably in determining the grievor did not meet them. Counsel noted Mr. Nicholson did meet these qualifications. [43] Counsel for the employer argued there was nothing nefarious in Mr. Winstone’s decision to expand the 2013 competition to all employees after the grievor turned out to the be the only permanent full-time applicant. He had failed the test just over a year before and his application did not indicate he had done anything in the meantime to upgrade his knowledge of industrial maintenance. Counsel also noted Mr. Winstone - 11 - could have invited all employees to apply, when the training opportunity was first advertised, if his intention had been to favour Jason Nicholson. As to the reference to excellent attendance in the second invitation, employer counsel argued Mr. Winstone ultimately did not apply this standard. [44] Counsel for the employer submitted Mr. Winstone’s selection of Alan Nicholson and Darnell Janes in 2014, when the grievor was not even an applicant, is not relevant to determining whether the maintenance manager acted in good faith when he rejected the grievor’s application in 2013. In the alternative, counsel submitted changed circumstance, relating to the new pallet loading equipment, led Mr. Winstone not to use the aptitude test or to require a certificate in 2014. IV [45] The employer is required to act in good faith when awarding training opportunities even though they are not specifically addressed in the collective agreement. The obligation to act in good faith was recognized in Ontario Public Service Employees Union and Ministry of Natural Resources (Bousquet), GSB No. 51/90, where Vice-Chair Gorsky wrote: The employer cannot deliberately tilt the field with a view to preferring one employee over another. However, where in good faith and for genuine government purposes an employee is denied a training or development opportunity, where the denial is not founded on a deliberate attempt to undermine the employee’s opportunities for promotion, the decision will not be interfered with. … (page 36) All of the cases emphasize that in cases involving the exercise of management discretion, the Board will hesitate to substitute its view for that of the employer so long as certain minimum tests are met. These include the requirement that the decision be a genuine one related to the management of the undertaking and not a disguised means of achieving impermissible ends based on discrimination or other grounds unrelated to the making of genuine management decisions. The facts considered in making the decision must be relevant to genuine government purposes. Also in making its decision, management, provided it has acted in good faith as above described, need not be correct. (pages 63 and 64) [46] According to this standard of arbitral review, my mandate is limited to determining whether the employer acted for reasons related to the management of the - 12 - enterprise, rather than illegitimate considerations such as family relationships or a desire to impede the grievor’s career advancement. It is not my role to decide whether the employer made the correct management decision. [47] Turning to the facts at hand, I begin by noting the evidence falls far short of proving Mr. Pizzolato engaged in any type of retaliation. I have already ruled the settlement of a health and safety grievance, filed by the grievor, is not itself prima proof of a motive for reprisal by the warehouse director. The union led no direct evidence to suggest Mr. Pizzolato, or any other manger, had a motive to block the grievor’s career progression. [48] Nor is there any direct evidence indicating Mr. Pizzolato was involved in the appointment of his nephew or brother-in-law first to a training opportunity and later to a permanent position in the maintenance department. Indeed, the only direct evidence is to the contrary. Mr. Winstone testified the warehouse director played no role in choosing the successful candidate on any of these occasions. Mr. Pizzolato did endorse the recommendation of the selection committee, appointing Jason Nicholson to a permanent position, but this endorsement occurred almost two weeks after Mr. Nicholson had been advised of his appointment. I conclude, on the balance of probabilities, that Mr. Pizzolato was not involved in the selection process for training opportunities or permanent positions. [49] Mr. Winstone alone decided who received a training opportunity. Permanent positions were awarded based on the recommendation of a panel comprised of Mr. Winstone and two other management representatives. There is no direct evidence any of them were influenced by a candidate’s family connection to the warehouse director. The allegation of nepotism rests exclusively upon circumstantial evidence. [50] In 2013, Mr. Winstone posted a second memo, advertising a training opportunity, after the grievor had already applied in response to the maintenance manager’s first memo relating to such an opportunity. I do not view the second memo as indicating Mr. Winstone was deliberately tilting the field against the grievor. He had already failed the aptitude test by a wide margin, just over a year before, and his application did not indicate he had done anything in the interim to improve his knowledge. - 13 - [51] The second memo expanded the competition to all employees, thereby allowing Jason Nicholson to apply as a seasonal employee. Nonetheless, I am not persuaded this expansion was motivated by Mr. Nicholson’s relationship to the warehouse director. If favouring the nephew of the warehouse director was Mr. Winstone’s intention, one might have expected his first memo to have included seasonal employees. Moreover, Mr. Winstone previously had rejected multiple applications from Jason Nicholson for positions in the maintenance department, including applications to work as a service person made in 2006 and 2011. By 2013, Mr. Winstone was just two years from retirement with little to gain by currying favour with the warehouse director. [52] The second memo changed the applicable attendance standard from satisfactory to excellent, but the standard of excellent attendance had already appeared on one prior posting and it appeared on subsequent postings. In any event, the standard actually applied to the 2013 training opportunity appears to have been one of satisfactory attendance. [53] Based on Mr. Winstone’s review of attendance records, he may have erred in concluding the grievor’s attendance was not satisfactory, as this review revealed only one year in the last three with more than fifteen days of absence. Nonetheless, any such error did not prejudice the grievor because he did not meet two other qualifications. [54] The grievor did not pass the aptitude test. Having failed the test in late 2011, he did nothing to upgrade his knowledge and did not ask to rewrite the test in 2013. He also provided no certificate of training related to industrial maintenance. There is no evidence he communicated to Mr. Winstone the reason he was unable to provide documentation proving he had taken the machine shop course. Jason Nicholson passed the aptitude test and provided a certificate of training in electrical techniques. [55] Two of the qualifications required of the grievor in 2013 were not required of Alan Nicholson and Darnell Janes in 2014 when they were selected first for a training opportunity and then for a job posting. Neither of them took the aptitude test and neither held a certificate of training related to industrial maintenance. Alan Nicholson is related to Mr. Pizzolato but Darnell James is not. The only connection between the warehouse - 14 - director and Mr. Janes’ is his friendship with the director’s nephew. Mr. Winstone testified there was an urgent need in 2014 for additional maintenance staff to service recently installed equipment and both Alan Nicholson and Darnell Janes had been trained to do that work and were already doing it as warehouse workers. This uncontradicted testimony provides a reasonable explanation for not requiring these two applicants to meet the normal qualifications. In my view, this explanation is more plausible than the union’s contention that Mr. Winstone, a year before retirement, deliberately favoured not only the director’s brother-in-law and but also a friend of the director’s nephew. [56] The foregoing analysis leads me to conclude the union has failed to prove the rejection of the grievor’s application was motivated by nepotism or by a desire to impede his career advancement. The grievance is dismissed. Dated at Toronto, Ontario this 24th day of May 2017. Richard M. Brown, Vice-Chair