GSB#2013-0660, 2013-2554, 2015-0977, 2015-2669, 2016-1343 UNION#2013-0378-0037, 2013-0378-0092, 2015-0378-0050, 2015-0378-0107,

2012-0378-0016

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

September 16, 2016

Decision

1The grievor works selecting orders in the Durham warehouse. The union has referred to arbitration four grievances related to his attempts to secure a training opportunity or a permanent job as a service person at the warehouse:

• a grievance date February 28, 2013 concerning the grievor’s attendance record

• a grievance dated July 19, 2013 concerning the denial of a training opportunity as a service person;

• a grievance dated March 4, 2015 concerning a job posting for the position of service worker; and

• a grievance dated October 6, 2015 also concerning a job posting for the position of service worker.

2Employer counsel brought five motions relating to these grievances: four relating to particulars provided by union counsel in a letter dated September 6, 2016; and a fifth contending the grievance about attendance is not arbitrable.

3In the letter of September 6, union counsel also sought to refer to arbitration a grievance dated January 26, 2012, dealing with yet another job posting. The employer contends the referral of this grievance to arbitration at this late stage should be barred as untimely.

I

4The first motion relates to paragraphs 3 to 7 of the particulars concerning a health and safety grievance filed by the grievor in the spring of 2010 and settled soon after. The union relies upon these particulars in support of its contention that the filing of this grievance led the warehouse manager, Bruce Pizzaloto, to retaliate against the grievor by later refusing to allow him to work as a service person.

5I conclude no evidence may be led in relation to paragraphs 6 and 7 which allege two individuals told the grievor that Mr. Pizzaloto would retaliate against anyone who crossed him. This evidence is hearsay. Moreover, it deals with the collateral issue of Mr. Pizzaloto’s character and not with the issues central to the grievances before me.

6The crux of the employer’s argument about paragraphs 3, 4 and 5 is that the settlement of the health and safety grievance precludes the union from leading any evidence about the merits of the grievance or the circumstances of the settlement at the hearing, the parties agreed the union could lead evidence showing the grievance was filed and settled. I note this agreement is rendered moot by my ruling below on the union’s second motion.

II

7The employer’s second motion seeks to preclude the union from leading evidence in relation to paragraphs 3, 4, 5, 16, 25, 31 and 36 of the particulars. The crux of these paragraphs is the allegation that Mr. Pizzaloto retaliated against the grievor, for filing the health and safety grievance mentioned above.

8The employer argued the union’s particulars, if proven, would not constitute prima facie proof of retaliation.

9Paragraph 5 alleges Mr. Pizzalotto was “very upset” and “embarrassed” by the health and safety grievance and its aftermath. Union counsel concedes there is no evidence of words or conduct by Mr. Pizzalotto to support this allegation.

10The 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.

III

11The employer’s third motion relates to particulars, found in paragraphs 22 to 27 of the letter from union counsel, relating to the union’s contention that the employer engaged in nepotism by denying the grievor a training opportunity and awarding it instead to Jason Nicholson who is alleged to be Mr. Pizzaloto’s nephew.

12The employer argued the union’s particulars, if proven, would not constitute prima facie proof of bad faith in the form of nepotism.

13The union’s particulars allege the original posting for the training opportunity, dated January 21, 2013, invited only full-time employees to apply. A revised posting, dated May 22, 2013, expanded the scope of the competition to all employees, including those employed seasonally. Mr. Nicholson was a seasonal employee.

14The union alleges the awarding of the training opportunity to Mr. Pizzaloto’s nephew was part of a pattern of nepotism in relation to the position of service person. Paragraphs 30 and 31 allege a vacancy posted in November of 2014 was awarded to Al Nicholson, said to be the brother-in-law of Mr. Pizzaloto, without Mr. Nicholson taking any test. (The union contends the grievor applied for this vacancy, something the employer denies. This vacancy is the subject of the grievance filed in March of 2015.)

15The union’s particulars also note Jason Nicholson was awarded a vacancy posted in 2015 after he had completed the training opportunity describe above. (This vacancy is the subject of the grievance filed in October of 2015)

16The facts alleged by the union are not conclusive proof that the employer engaged in nepotism. The selection of successful candidates related to Mr. Pizzaloto could have been based upon their qualifications rather than family relationship. Nonetheless, the question for me to answer is whether the facts alleged by the union, if proven, would be sufficient to shift the onus of proof to the employer, requiring it to show the selection of candidates was indeed based upon something other than nepotism.

17The 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.

IV

18The employer’s fourth motion concerns paragraph 11 of the union’s particulars alleging the grievor in March of 2011 was denied tuition assistance to take a course at Durham College related to the position of service person. Employer counsel contends this allegation is not relevant to any of the grievances before me. According to this line of argument, the grievor is barred from raising this matter because he did not grieve it in a timely fashion.

19Union counsel argues the denial of tuition assistance, two years before the events giving rise to the grievances at hand, should be viewed as part of a pattern of management conduct designed to prevent the grievor from obtaining the position of service person. Counsel relies upon awards admitting evidence of events preceding those eventually grieved, where such evidence is led to show a pattern of harassment.

20The grievances at hand do not concern harassment. A pattern of nepotism is alleged but there is no connection between that allegation and the denial of tuition assistance. In these circumstances, I decline to hear evidence relating to the denial of tuition assistance which occurred years before the circumstances giving rise to the grievances.

V

21The employer’s fifth motion contends the attendance grievance is not arbitrable. At the hearing, the parties agreed I would not hear this grievance. They also agreed the grievor’s attendance record would be considered in relation to the other grievances insofar as it was relevant to those matters.

IV

22Having dealt with the employer’s motions about the four grievances at hand, I now turn to the union’s request to refer a fifth grievance to arbitration, a job posting grievance filed on January 26, 2012. The employer’s final reply to the grievance is dated May 25, 2012. According to article 28.6 of the collective agreement, a grievor not satisfied with such a reply may refer the matter to arbitration “within five days.” As noted above, this grievance was not referred to arbitration until September 6, 2016, after a delay of more than four years.

23Given the extreme delay in referring this matter to arbitration, and the resulting likelihood of prejudice to the employer if called upon to mount a defense at this time, I decline to extend the time limit found in the collective agreement.