GSB#2015-2669

UNION#2015-0378-0107

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

November 30, 2016

Decision

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

2This decision addresses a grievance dated October 6, 2015 protesting the rejection of the grievor’s application for a job posting dated June 15, 2015. The union contends the rejection of the grievor’s application was based on nepotism and part of a pattern of nepotism in filling the position of service person.

3Employer counsel brought a preliminary motion asking to have the grievance dismissed. The employer contends the particulars provided by the union, together with the relevant documents, could not support a ruling that the employer contravened article 22.5(a) of the collective agreement. That article states: “Where employees are being considered for promotion, seniority will be the determining factor provided the employee is qualified to perform the work.” The employer contends the grievor’s application was rejected because he lacks the required qualifications and not due to nepotism.

I

4The first incident of alleged nepotism cited by the union occurred in 2013 in relation to a training opportunity for the position of service person. The original memo offering this opportunity is dated January 21, 2013 and signed by the then manager of maintenance, Larry Winston. It invited “full-time employees” to apply. The grievor applied in response to this memo but apparently no-one was appointed at that stage. A revised memo, dated May 22, 2013, expanded the scope of the competition to “all employees”, thereby including those employed seasonally. The grievor applied once again. Jason Nicholson, then a seasonal employee, also applied. He is the nephew of Bruce Pizzaloto who was then director of the warehouse. The training opportunity was awarded to Mr. Nicholson. When a vacancy for the same position was posted later in November of 2013, Jason Nicholson was the successful applicant. The grievor did not apply for this posting.

5The second incident of alleged nepotism relates to another posting, dated November, 12 2014, for a permanent appointment. The successful candidates were Allan Nicholson, the brother-in-law of Mr. Pizzaloto and Darnell James who is said to be a friend of Jason Nicholson. Allan Nicholson and Darnell James were awarded the position of service person without being tested or interviewed. There was a dispute about whether the grievor was an applicant for the posting in November of 2014. In a decision dated October 25, 2016, I ruled he was not.

6The instant grievance concerns a posting in June of 2015. The two successful applicants were Tyler Acton and Donald Collins. Both of them have less seniority than the grievor. Mr. Acton’s mother and step-father were both managers in the operations side of the warehouse until they retired in 2011 and 2012 respectively. The union contends the appointment of Mr. Acton was part of a pattern of nepotism.

7All applicants for the posting in June of 2015 took an aptitude test. The grievor’s score on the test was 31%, whereas Mr. Acton achieved a score of 86% and Mr. Collins a score of 78%. All applicants were also interviewed. The interview panel was comprised of three members: Gary LeClair who had replaced Mr. Winston as manager of maintenance and had not previously been employed by the LCBO; maintenance supervisor Tyson Sonnenburg; and human resources assistant Pauline Kingdom. The grievor’s interview score was 97/210 (46%), whereas Mr. Acton received a score of 175/210 (83%) and Mr. Collins a score of 118/210 (52%)

8The interview panel recommended the appointment of Messrs. Acton and Collins. This recommendation was accepted by Gerard Herrington who was then acting warehouse director, having replaced Mr. Pizzaloto.

II

9Employer counsel contends the facts alleged by the union, if proven, would not constitute a violation of article 22.5(a), because the union has provided no particulars suggesting the grievor is qualified for the job. The union does not contend any of the qualifications listed in the job posting are not reasonably related to the job. The union does not contend the questions posed in the test, or the interview, are not relevant to those qualifications. Nor does the union contend the grievor’s answers when tested, or responses when interviewed, were improperly scored.

10As to the allegation of nepotism in relation to this job competition, employer counsel notes Tyler Acton’s parents never worked in the maintenance department and retired a few years before the job posting in question. Counsel also notes the two prior incidents cited by the union, involving relatives of Mr. Pizzaloto, occurred when he was warehouse director and Mr. Winston was maintenance manager. Neither of them was involved in the 2015 job competition.

11Union counsel submits the facts alleged reveal a pattern of nepotism. Noting others have been appointed as service person without being tested, counsel submits the employer should not be allowed to rely upon the grievor’s test score in relation to the 2015 job competition.

III

12In my view, the facts alleged by the union would not, if proven, amount to prima facie proof that the job competition in 2015 was tainted by nepotism. The mere fact the parents of one of the successful applicants were previously employed as managers at the warehouse does not alone constitute such proof. Even if Mr. Winston or Mr. Pizzaloto did engage in nepotism in 2013 or 2014, as the union alleges, neither of them was involved in the later job competition.

13The collective agreement allows the employer to set qualifications for a job and to utilize a test and interview to determine whether applicants meet those qualifications. Even if nepotism resulted in some applicants not being tested or interviewed in the past, as the union alleges, that would not preclude the employer from testing and interviewing applicants in a later competition not tainted by nepotism.

14The grievance is dismissed.