Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2015 November 9, 2015 ARBITRATION AWARDS on-board camera by placing two transfer tickets in front of the lens in order to prevent it from recording his activities. Kissmann was also recorded handling cash and using a hand- held device while behind the wheel of the bus. The employer found a total of 12 instances of Kissmann tampering with the video cam- era, using a hand-held device or handling cash between Sept. 6, and Nov. 25, 2014. It was con- cluded Kissmann had violated the employer's policies and, in the case of using a hand-held device behind the wheel, had also violated pro- vincial legislation. Before taking action against Kissmann, a supervisor checked on his bus to confirm the video camera was being blocked. On Dec. 5, 2014, the supervisor intercepted Kissmann on his route and saw the camera was indeed being covered by paper. The supervisor questioned Kissmann, and he denied putting the paper there himself. The employer interviewed Kissmann on Jan. 16, 2015, to discuss the incidents. Kiss- mann did not admit to blocking the camera, but said he had not blocked the camera since his encounter with the supervisor on Dec. 5. Kissmann was suspended without pay for three days. Although he had no previous dis- cipline with the employer, concern about Kissmann's distracted driving compromising passenger and public safety contributed to the severity of the discipline. The Amalgamated Transit Union Local 1582 filed a grievance against the employer af- ter Kissmann was suspended on Jan. 19, 2015. The union argued the parties' collective agree- ment prohibited the employer from using the on-board video system to check on employees' performance and conduct, or to generate evi- dence of employee wrongdoing. The union argued that, in the absence of the video on the bus, the employer would have had no idea of Kissman's alleged misconduct and therefore would have had no reason to imple- ment discipline. Kissmann admitted to blocking part of the on-board camera during his testimony. He said he was careful to avoid interfering with the filming of other parts of the bus, only blocking the driver's compartment from view of the camera. Kissmann referred to the paper as a "privacy screen," saying he was concerned about the collection and storage of the video by the employer. The union argued the video and everything from the video should be excluded. While the union conceded the employer was justified in checking the video for the date of the slip-and- fall accident, it argued there was no reason to check the video for any other dates. The bus was the workplace of the operators, and the union argued it was unreasonable that they should be subject to such constant and intru- sive surveillance. Arbitrator Michael Bendel agreed the par- ties' collective agreement prevented the video cameras from being used for any purpose oth- er than security. As a result, he ruled the video in question was inadmissible. Without admissible evidence to support Kissmann's suspension, the grievance was al- lowed and the suspension set aside. Bendel ordered the employer compensate Kissmann for wages and benefits lost as a result of the suspension. Reference: The Corporation of the City of Niagara Falls and the Amalgamated Transit Union Local 1582. Michael Bendel — arbitrator. Timothy P. Liznick for the employer, John McLuckie for the union. Oct. 22, 2015. NB Power's promotion process flawed, arbitrator says STEPHEN GOULD and Aaron Grant, em- ployees at the New Brunswick Power com- pany, said they were denied promotions wrongfully and despite the fact that junior, less-qualified employees were moving into the coveted power plant operator position. Gould and Grant, represented by the Inter- national Brotherhood of Electrical Workers (IBEW) Local 37, said they were senior em- ployees with "ability and qualifications" that were equal or more when compared to the junior employees being promoted. Six junior employees were promoted to the position be- fore Grant and Gould. According to the IBEW, this was a viola- tion of the collective agreement. The evalu- ation process was flawed and invalid, based on structural flaws in the process including behaviour assessments and various assessors, the union said. As such, both employees sought an order that the competition and appointment of the six junior employees to the desired classifica- tion be struck, and a new competition be run. No personal claim for the job posting would be intentionally made at the hearing, the union added. In response, New Brunswick Power denied any wrongdoing and claimed instead that its Employment Opportunity Posting was prop- erly listed under the "qualifications" assess- ment for the posting. The process undertaken was fair and utilized qualified persons for all assessments made. The assessment was intended to assess the job applied for, not the job the incumbents held — as a result, the employer contended past performance appraisals were not relevant and all persons were assessed under a similar matrix by persons fairly positioned to address the relevant criteria selected. In making his decision, Robert Breen found the employer's assessors were in no position to weigh the grievor's lengthy and apparently sat- isfactory work performances, and not enabled to reconcile their assessment of any of the candidates with expected personnel records, much less weigh the candidates' relative tech- nical competencies. An appraisal of objective information was deliberately excluded from the process, nor was there any feedback over so-called deficiencies, Breen said. He concluded the employer not only violated the collective agreement, but ran an inherently unfair and unreasonable assessment process. "The process was plainly unfair and unrea- sonable in circumstances which show a failure of NB Power to properly train or instruct the assessors on the assessment to be made, and a failure to confirm to them what the scoring criteria meant to a candidate's recommenda- tion," he said. He directed the competition for the power plant operator position be rerun, and the pro- cess should align with the direction of the col- lective agreement and this award, Breen said. "This tool should, minimally, include a reli- ance on such performance appraisals as ex- ist and the relative technical competencies of candidates and separately weighted in a consistent process for assessment designed to bring an overall 'balanced perspective' on all candidates. Reference: New Brunswick Power Nuclear and the International Brotherhood of Electrical Workers Local 37. David Mombourquette for the union, Melissa Everett-Withers for the employer. Robert Breen — adjudicator. Sept. 3, 2015.

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