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Title: Los Angeles Police Department and the Los Angeles Police Protective League
Date: April 7, 1992 
Arbitrator: Luella E. Nelson
Citation: 1992 NAC 103

 

In the matter of arbitration between:

Los Angeles Police Protective League,

                            and

Los Angeles Police Department .                            

 

Grievances of Joseph E. Macis,

Kenneth P. Hamilton and

Michael Anderson, 

Grievance Nos. 981, 982, 983

LUELLA E. NELSON - Arbitrator


            This Arbitration arises pursuant to Memorandum of Understanding ("MOU") between LOS ANGELES POLICE PROTECTIVE LEAGUE ("League"), and LOS ANGELES POLICE DEPARTMENT, ("De­partment"), under which LUELLA E. NELSON was selected to serve as Arbitrator and under which her Award shall be final and binding upon the parties.

            Hearing was held on January 7 and 8, 1992, in Los Angeles, California.  The parties were afforded full opportunity for the examination and cross-examination of witnesses, the introduction of relevant exhibits, and for argument.  Both parties filed post-hearing briefs on or about March 10, 1992.

APPEARANCES:

            On behalf of the League:

                        Diane Marchant, Esquire, Marr & Marchant, 3255 Wilshire Boulevard, Suite 830, Los Angeles, California 90010-1419.

            On behalf of the Department:

                        Captain Paul Coble and Officer Mark R. La Bonta, Los Angeles Police Department, 150 North Los Angeles Street, Los Angeles, California 90012.

ISSUE

                        Did the Department violate any provision of the Lieutenant and Below Memorandum of Understanding, or of its own rules or regulations, in the selection of Cedric Wilder to fill the Detective III vacancy at issue in this grievance?


                        If so, what is the appropriate remedy?

 

RELEVANT SECTIONS OF AGREEMENT

                            ARTICLE 8  PROVISIONS OF LAW AND SEPARABILITY

            This Memorandum of Understanding is subject to all current and future applic­able Federal, State, and local laws, the City Charter, and any lawful rules and regulations enacted by the Civil Service Commission, or other similar independent commissions of the City.  ...

 

RELEVANT DEPARTMENT POLICIES[1]

            763.05  PAYGRADE ELIGIBILITY REQUIREMENTS.  The requirements ne­ces­sary to qualify for advanced paygrade assignments are indicated below following each paygrade classification.

            ...

 

            Police Detective III.  The following are eligible for consideration for advance­ment to Detective III:

            *          A Sergeant with dual-assignment status, who has one year of investiga­tive experience at the Detective II or Detective II level (time assigned as a divisional vice supervisor or Internal Affairs investigating officer may be substituted); or,

            *          One year of experience at the Detective II level.

            ....

            

            805.  AFFIRMATIVE ACTION POLICY.

            ...

            It is the Department's policy and practice that all efforts to achieve the goals of the Department's Affirmative Action Plan shall be consistent with the merit principle, that principle which states that ... promotion, ... and other personnel actions will be based on uniformly applied criteria of relative fitness to perform duties of the posi­tion sought or held.

            It is also the Department's policy and practice that all reasonable positive efforts will be made to achieve a work force which, at all levels, reflects parity with the sex/ethnic makeup of the City's civilian labor force.  Efforts to achieve these goals include con­ducting outreach recruitment for entry-level hiring, civil service promotion, and paygrade advancement.

            Affirmative action objectives should be considered whenever a supervisor, staff, or command officer is involved in any phase of the promotional or advancement selec­tion process and two or more candidates for a position are equally qualified. ....

 
            AFFFIRMATIVE [sic] ACTION PROGRAM (January 1984)    


...

            It is the Department's policy and practice that all efforts to achieve the goals of the Department's Affirmative Action Program shall be consistent with the merit principle, that principle which states that ... promotion, ... and other personnel actions will be based on uniformly applied criteria of relative fitness to perform duties of the posi­tion sought or held.

            It is also the Department's policy and practice that all reasonable positive efforts will be made to achieve a work force which, at all levels, reflects parity with the sex/ethnic makeup of the City's civilian labor force.  Efforts to achieve these goals include:  con­ducting outreach recruitment for entry-level hiring, civil service promotion and pay­grade advancement.

            Affirmative action objectives should be considered whenever a supervisor, staff, or command officer is involved in any phase of the promotional or advancement selec­tion process and two or more candidates for a position are equally qualified.

            ...
           
XI.       STAFF AND COMMAND OFFICER RESPONSIBILITIES

            Staff and Command Officers are required to ensure that personnel practices within their organizational entities are fully supportive of the Department's Affirmative Action Program.  Their specific responsibilities are to:

            A.        Ensure that all employees who supervise, recruit, interview, train, discipline, or take other personnel actions, utilize job-related standards and contribute to the achievement of affirmative action goals.

            ...

            XII.      SUPERVISOR'S RESPONSIBILITIES
           
...

           
All supervisors are responsible for:
           
...

           
G.         Justifying personnel actions by:

                        1.         Asking all candidates who are interviewed for a job similar questions which will evaluate their abilities to perform the job being filled; and avoiding questions which are not job related.

                        2.         Keeping written records for at least one year on the qualifications of all persons interviewed for... paygrade advancements, ... and consider­ing only that information which relates to the individual's ability to perform the duties of the position.
....

FACTS

            This case involves the July 15, 1990, promotion of Cedric Wilder to the position of Detective III ("D-III") in the Southwest Detective Division ("the Division").  Grievants Kenneth Hamilton, Michael Anderson, and Joe Macis are all Detective II's ("D-II's") in the Division.  Each claims to have been the most qualified candidate for the position.

The Recruitment Process
            Lieutenants Alan Kerstein and Richard Molony drafted a general notice of vacancy, specifying as the only qualifi­cation, "Supervisory experience desirable."  Twelve candidates applied; one later withdrew his application.  Of the eleven remaining candidates, five came from within the Division.  Two candidates, including Wilder, were black men, both from outside the Division.  The remaining nine candidates were white men.

            Hamilton testified that approximately six weeks before the interviews, he overheard Kerstein discussing the upcoming selection.  Kerstein said there were no black D-III's in the Division and the vacancy probably would be an affirmative action promotion.  Macis testified that he overheard Kerstein talking to a D-II, Dick Simmons, several weeks before the vacancy notice came out.  Kerstein asked Simmons whether Joe Lewis was black.  Upon learning that he was, Kerstein asked Simmons to tell Lewis to apply for the D-III spot.
           
Kerstein denied saying in the presence of Division personnel that this was likely to be an affirmative action selection.  He further denied indicating to members of the Division that he was looking for a minority candidate.  He testified that he did not know Lewis and did not encourage him to apply.

The Selection Process

           
Initially, the interview panel consisted of Kerstein and Molony.  After one interview, Captain Noel Cunningham joined the panel.  The new panel then interviewed all candidates.  Prior to the interviews, the panel formulated questions to be asked of each candidate.  The questions formulated, and the panelist designated to ask the questions, are as follows:
           
Captain Cunningham:

            1.         What do you think are the problems facing the detectives over the next 10 years?

            2.         If I called your commanding officer or immediate supervisor, what do you think he would say your weakness is?  your strength?

            3.         Name the D-III  you most admire and what is the attribute that causes you to think that 
                        way? (Inside applicants only)

 

            Lieutenant Kerstein:

            1.         What is the essence of supervision?

            2.         What do you perceive to be the problems detectives will face in future, and what innovative methods will you use to solve them?

            3.         Why are multiple crime clearances/multiple follow ups so few and far between?  What will you do about it?


Lieutenant Molony:

            1.         What is the pay differential between D-II and D-III, and why do you suppose the Department structured it that way?

            2.         What will you do to earn that additional pay?

            3.         Are you the subject of any worker's compensation settlements or pending disciplinary matters?  (Outside applicants only)

The panelists asked follow-up questions raised by the candidates' answers.  Candidates were also allowed to make an opening statement.
           
The panelists discussed the candidates after the interviews.  By taking each panelist's preferred candidate, the panel arrived at a list of three finalists--Wilder, Bill Pavelic, and Grievant Hamilton.  Of the three, Wilder was the only finalist from outside the Division and the only black finalist.  Molony testified that he preferred Hamilton, Kerstein preferred Pavelic, and Cunningham preferred Wilder.  He recalled that Cunningham commented he was disap­pointed in Wilder's oral presentation and felt he could do much better.  Cunningham did not explain why he preferred Wilder.  Molony expected either Hamilton or Pavelic to be selected, and would have placed Wilder fifth or sixth, below all three Grievants.
           
In a later meeting, Cunningham and Kerstein discussed the three finalists with then-Deputy Chief William Rathburn.  Cunningham testified the discussion with Rathburn nar­rowed the finalists to two contenders, and after a lengthy discussion narrowed it to Wilder.  He recalled that Rathburn expressed concern over the practice in the Department and the Division of promoting white males, a concern Cunningham shared.  Cunningham also discussed separately with Rathburn the desirability of bringing in someone from outside the Division.  Although not a big factor, he hoped thereby to have a D-III who was not indebted to the existing D-III's.  In his view, expertise was critical in the detective function.
            Kerstein testified that the principal qualifications he looked for were integrity, administra­tive skills, diversity in investigative background, capacity to learn the new job, exposure to supervisory responsibili­ties, and a fairly good working knowledge of investiga­tions and review of investigations.  In his view, the final three candidates were substantially equally qualified, but he personally favored Pavelic somewhat.  He did not recall discussing Wilder's race in the meeting with Cunningham and Rathburn, but acknowledged they all knew his race.  He testified that affirmative action was one of many considerations in this selection.  He denied ever making a selection based solely on affirmative action consider­ations.
            Rathburn testified via deposition that the three finalists were presented to him as qualified for the position, and the other candidates were not discussed.  He recalled that Kerstein and Cunningham were initially leaning toward Pavelic.  After Rathburn pointed out the lack of minority supervising detectives in the Division, Cunningham and Kerstein discussed the candidates further, and eventually decided to select Wilder.  Rathburn testified that affirmative action did not come into play in this selection because, in his view, not everything else was equal.  Instead, he "felt very strongly that operational effectiveness of Southwest Detectives required that we have minority supervision."  (Tr. 12)  Based on the input from Cunningham and Kerstein, he approved Wilder for the job.
           
Hamilton testified that Kerstein and Molony called him into the office to notify him of the selection.  He testified that Kerstein told him he had been a finalist and Wilder had been selected based on the Affirmative Action Policy ("AAP").  Anderson testified that Kerstein called him into his office to notify him of the selection.  When Anderson asked why Wilder was selected, Kerstein answered he felt they needed to have a black D-III.  When Anderson protested that Wilder was not as qualified, Kerstein responded, "Well, we have to give him a chance somewhere."  Macis testified that Kerstein told him Wilder was selected because he was best qualified for the position and because he had Officer-Involved Shooting ("OIS") and Internal Affairs ("IA") investigative experience.
           
D-III Michael Heffernan testified that, at some point after Wilder's selection, he discussed with Kerstein a change in the assignment of D-III's within the Division.  According to Heffernan, Kerstein indicated a need to move Wilder, then added, "I've learned that I'm not going to promote someone because of his race or just to please someone.  I'm going to promote him, if he can do the job."
           
Kerstein denied any recollection of telling anyone that Wilder had been an affirmative action promotion, or commenting that he would never again appoint someone because of his race.  He was unable to recall the circumstances under which he might have made a statement such as that recounted by Heffernan, or who he might have been discussing if he made the statement.

Relative Qualifications
[2]
           
Wilder has been with the Department since 1971, and has been a D-II since 1987.  He worked in the Internal Affairs Division for two years as a D-II, where he investigated allegations of officer misconduct.  He then worked at the Robbery/Homicide Division in the Officer-Involved Shooting ("OIS") team.  He testified that he did not directly supervise other employees in either position, but served in a supervisory role in directing Department employees to cooperate in the investigations carried on in those functions.
           
Hamilton has been with the Department since October 1967, and has been a D-II since 1979.  He worked in the Organized Crime and Intelligence Unit from 1971 to 1985.  He was administratively transferred to the Division in 1985.  There, he has worked in all the specialties except the Juvenile Unit.  At one point he undertook a confidential investigation in South Bureau for Rathburn.  He has served as Assistant Coordinator in various units within the Division, and directed the work of those units in the absence of the D-III.

In January 1985, Hamilton received an official reprimand, as follows:
...during June 1984, after becoming aware that [A.D.], a fugitive from Mexico was going to enter the United States, you neglected your duty by failing to make proper notifications; and On June 27, 1984, after becoming aware that [A.D.], a fugitive from Mexico was going to arrive in Puerto Rico, you engaged in conduct unbecoming an officer by improperly accepting a trip to Puerto Rico for personal reasons, at the expense of the [D] family.

The issue of Hamilton's administrative transfer came up during the interview.  Molony recalled that Hamilton explained in a very mature manner what had happened and pointed out what he had learned from the experience.
           
Anderson has been with the Department since 1967, and has been a D-II since May 1974.  He has worked in every specialty in the Division.  As Assistant Coordinator, he has acted as Coordinator in the absence of the D-III.  His duties have included evaluating subordinates.
           
Macis has been with the Department since March 1971, and has been a D-II since May 1985.  At one time, he served as Adjutant for the Detective Commanding Officer.  In that role, he performed various administrative tasks and acted as the liaison between the Detective Coordinators and the Area Detective Commanding Officer.  He did not give orders to D-III's, but conveyed the Commanding Officer's orders.  As Assistant Coordinator, he has filled in for D-III's during vacations and other absences.

           
Kerstein recalled that at one point in his interview, Macis commented that it sometimes appeared to observers that he was not working, when actually he was trying to think of something or planning.  He recalled Cunningham commenting during later discussions of the candidates that it was unusual for a candidate to admit that he gave the appearance of doing nothing at all.

The Grievance Process

All three Grievants filed grievances, each asserting that he was the most qualified candidate.  Kerstein denied all three grievances.  In responding to each, he commented, inter alia:
The basis for this decision was Wilder's varied background and experiences, his performance in the oral interview, his performance evaluation reports, and the needs of Southwest Detective Division to increase its minority representa­tion in this rank and paygrade.

            Each of the Grievants testified to discussions with Cornelius Jenkins, a Senior Management Analyst with the Los Angeles Police Commission.  Each of them recalled that Jenkins said he thought their grievances had merit but that they would not be resolved at the Police Commission level.  Each recalled him suggesting they pursue their grievances beyond the Police Commission level.  Jenkins testified he did not tell any of the Grievants that their grievances had merit or that they should pursue them.  He recalled telling them he was investigating possible procedural errors.  The Police Commission responses to the grievances were identical, and read in relevant part as follows:

            The Department's reason for selecting Detective Wilder was his interview performance, and the fact that affirmative action considerations were used as the final selection criteria since there was no general agreement on who was the top candidate.  This is a legitimate selection criteria when top candi­dates are closely ranked.
The Board is aware that there were deviations from the Department's Ad­vance­ment Paygrade Guidelines; however, these deviations were not sig­nif­i­cant enough to justify setting aside Wilder's selection.  Existing documenta­tion of the selection process does not clearly identify the rationale for each rater's choice of top candidate, or the selection of Wilder as the successful candidate.  Further complicating this matter is the fact that Chief Rathburn and Captain Cunningham have retired and are not available for comment.
On the other hand, none of the four grievants have supported their claims to be better qualified than Wilder.  Without this showing, and without evidence of improper procedure by Southwest, this grievance must be denied.

POSITION OF THE LEAGUE

            Department managers deviated from established pay grade advancement procedures in several significant respects.  The Department failed to prepare a position description for the job, to analyze the skills and abilities required to successfully perform that job, to make a careful compilation of questions that would probe the candidates' abilities to perform in the position, and to make a written rationale for the selection it made.  The Police Commission found these deviations insignificant.
           
The examination process was essentially lacking in objective standards against which to evaluate the candidates.  As a result, purely subjective standards were used by each interviewer.  Molony and Kerstein applied standards more or less related to experience, whereas Cunningham and Rathburn were concerned about "racial parity."
           
The lack of objective standards resulted in the interviewers' inability to decide who was "most qualified."  It also resulted in the interviewers' relying on input from Rathburn.  It further allowed the selection to be governed by considerations unrelated to how well the candidates performed during the examination or to how well they might be expected to per­form the job for which they were competing.  These deviations were not "insignificant."  They were so serious that the entire test procedure was compromised.
           
The Department did not adhere to its own AAP.  That Policy speaks of achieving parity with the civilian labor force through promotions by the device of outreach, not through preferring one race over another.  The Department did not simply encourage Wilder to apply for this job.  It favored him because of his race.  Kerstein's testimony that Wilder was chosen "because of his potential to do the job of a Detective III," was inconsistent with the testimony of Cunningham and Rathburn as to the part Wilder's race played in the selection.  Kerstein's credibility was also undermined by the testimony regarding his conversation with Heffernan.
           
The parties have not asked the Arbitrator to determine who was the "most qualified" candidate.  The Arbitrator may find, based on the record in this case, that it is highly improbable that the "most qualified" candidate was selected.  Such a finding can be based on the failure to use objective job-related criteria.
           
Wilder had no prior experience in a geographic detective assignment as a D-II.  He had never worked as the Assistant Coordinator or Acting Coordinator on a table.  He had been a D-II only since 1987.  In contrast, Anderson had been a D-II since 1974, had 19 years in Detectives, and had over 7 years as a Detective Supervisor.  Macis had been a D-II since 1985, with 3½ years' experience as an Assistant Coordinator.  Hamilton had been a D-II since 1979, an Assistant Coordinator during the past three years, and Acting Coordinator during several long-term absences of the D-III.
           
Time in pay grade and years of experience are not absolute indicators of merit for promotion.  Scored performance in a promotional examination based on job-related criteria is also important.  However, Wilder had neither time in pay grade nor years of experience, and may not have performed well in the examination. 
           
Three types of remedies are available when a promotional procedure is defective.  One is to refer the matter back to the appointing authority with directions to reconsider the applications in the context of a valid selection procedure.  The second is a grant of front pay for lost wages pending a proper selection.  The third is a promotion with back pay.
           
It is not uncommon to grant a promotion as a remedy for errors in promotional pro­cedures.  Other arbitrators have designed other remedies.  Where, unlike here, the grievant was not qualified for the position, the unqualified grievant may receive pay at the higher rate from the time the job was filled to the date of arbitration.  Where the dispute involves not only procedural defects, but also a discrimination claim, monetary damages are also appro­priate.  Even if the discriminatory acts are justified by a consent decree, the employer must pay damages to the employee who has been injured by the corrective action.
           
The Arbitrator should conclude that the Department violated its own rules in select­ing Wilder for the position.  The Arbitrator should order the Department to promote each of the Grievants to D-III, with back pay to the date of Wilder's appointment.  In the alternative, the Department should be ordered to pay Grievants at the D-III rate from the date of Wilder's appointment until such time as each Grievant is advanced to D-III as a result of his successful participation in another advanced pay grade selection process.

POSITION OF DEPARTMENT

            The League bears the burden of proof of showing, by a preponderance of the evi­dence, that a contract violation occurred.  The League failed to prove that any Grievant was demonstrably superior to Wilder.
           
Beyond a year in grade as D-II, there are no set criteria for D-III.  No written examination is required such as to generate a numerical score.  No set system exists for weighing elements of an applicant's background, experience, or training.  There is no seniority rule for appointment.  None of these set and arbitrary measures exist.
           
Rather, the Department must determine what it needs in a person to fill a vacant position, what will best help achieve the purpose, task or mission.  In this case, Rathburn, Cunningham, and Kerstein, with the assistance of Molony, worked together to make an informed judgment as to the applicant best suited to helping the Division achieve its part of the overall law enforcement mission of the Department.
           
The Department is not privileged to behave frivolously and capriciously regarding qual­ifications.  The qualifications must bear some rational nexus to the ability to perform the duties of the position in question.  Kerstein considered diversity of experience, time on the job, time in grade, personal knowledge the interviewers may have had, applicants' responses to the questions posed in the interview, and individual integrity.  One need not be a police professional to recognize the facial validity of these factors as selection criteria for a senior supervisory detective position.  The League introduced no evidence to suggest that these criteria were objectively inappropriate, irrelevant, or incomplete. 
           
Molony's testimony should be discounted.  He is out of sorts because his favorite did not get the nod and his wisdom and insight were not heeded by his superiors.  Unlike Molony, those superiors had the authority and responsibility for making the decision.  Molony evidenced obvious bias in his testimony.  He "reminded" the League's attorney to ask the "right" questions so he could tell his tale of woe.  He gratuitously offered his disbelief of Kerstein regarding the selection.  Molony's demeanor was also significant.
           
Each Grievant believed he should have received the promotion.  No evidence exists that any was superior to Wilder.  Hamilton's articulated factors were not inconsistent with those described by Kerstein.  He alone among the Grievants was placed in the final three applicants for discussion with Rathburn.  However, no objective evidence exists that Hamilton was superior to Wilder.  At best, he was only one of three finalists.
           
Hamilton's credibility was also questionable.  Hamilton acknowledged he was found cul­pable of exercising censurably poor judgment.  His integrity is in question because of his less than candid description of the reasons for the discipline he received in that incident.  Kerstein did not credit these events in evaluating Hamilton.  However, Hamilton placed his professional life before the Arbitrator in his bid to prevail.  If Grievants may ask the Arbitrator to look at long ago experiences and backgrounds they believe to be favorable to their cause, they can hardly argue that a blind eye must be turned to that which tends to disfavor them.  In contrast to this track record, no evidence exists that Wilder ever showed this kind of poor judgment in his conduct or this lack of integrity in his recollection of relevant events. 
           
If the selection criteria had been those described by Anderson, each of the Grievants might have been considered equally qualified to Wilder.  No evidence suggested that Anderson's qualifications made him superior to Wilder or anyone else.  In fact, Anderson was not even considered as one of the top three candidates for the position.  Anderson was at least straightforward and honest regarding an incident where he exercised poor judgment.  Nonetheless, he had shown an egregious breach of decorum and profound lack of judgment.  A fall, even a very serious fall, does not forever curtail advancement.  In some circum­stances, this episode might be discounted, but not when compared to a candidate who had not shown the same lack of judgment.
           
Macis attempted to dance around the issue of whether "sound" or "good" judgment was required of supervisors.  It is no wonder the Department chose not to select a candidate who is driven to the depths of philosophical angst over this issue.  Macis did not wish to talk about judgment and integrity, because he was found in the past to have been culpable of exercising censurably poor judgment.  He inaccurately described the reasons for his earlier discipline.  This is not the type of employee the Department ought to place in the highest supervisory rank of Detective. 
           
The Arbitrator should discount Grievants' testimony regarding Jenkins' alleged re­marks.  Jenkins denied saying the grievances had merit, but acknowledged he was inves­ti­gat­ing possible procedural errors.  Ultimately the Police Commission denied the grievances, leaving no doubt that the grievances had no merit and that there were no procedural errors.
           
The Advanced Paygrade Interview Guide is irrelevant to this selection.  No one involved in making the selection used or was aware of the Guide in making the selection.  Unrebutted evidence established that the Guide was not distributed and placed into use until after this selection.
           
Wilder's selection was consistent with the Department's AAP.  His race was one ele­ment considered by the decision-makers.  He was one of three substantially equally qualified candidates for the position.  The other two top candidates were white males.  The Department's AAP requires consideration of affirmative action objectives whenever "two or more candidates for a position are equally qualified."  Therefore, the decision-makers had a responsibility to consider affirmative action objectives in making this selection.
           
The Department has no set affirmative action objectives or numbers.  It simply con­siders underrepresentation of minority groups in the work place when weighing affirma­tive action in promotional and advancement decisions.  There were no minority supervisors in the Division.  The Department and the League share a concern over underrepresentation of minorities in supervisory and advanced pay grade opportunities.  Southwest Area and the entire Department had a practice of promoting white males.  The Department thus had an ob­li­gation to ensure there was some parity.  Representation and parity could not be achieved by moving the available minority supervisors from place to place.  For affirmative action to work and parity to occur, someone somewhere must recruit, hire, train, and retain qualified minorities.
           
One cannot find a smoking gun in Rathburn's deposition testimony regarding the need for minority supervision.  Rathburn was not consulted until the end of the selection process.  By that time, three substantially equally qualified candidates had been identified.  The selection was made by Cunningham and Kerstein, not Rathburn.  Rathburn never in­structed either decision-maker to deliver up a minority for the selection.  Rathburn never told either decision-maker that Wilder's race was an operational imperative or otherwise made him superior to other candi­dates.  No significance can be attached to the likelihood that a lively discussion ensued over the relative strengths of the final three candidates.  Rathburn's approval was not supposed to be a ministerial act, but rather the product of an informed management decision.
           
Heffernan's testimony should be disregarded.  He had never been called upon to make selection decisions for D-III.  That role would be inappropriate for a fellow D-III.  His testimony is nothing more than a vote, perhaps divided three ways, for each Grievant.  The Arbitrator should also discount Heffernan's testimony regarding Kerstein's alleged comments on affirmative action selections.  Kerstein recalls making no such statement.  Knowing of the pending grievances and the hard feelings, it is unlikely that a commanding officer would say such a thing to a subordinate.
           
The grievance should be denied as without merit.  If the Arbitrator concludes to the contrary, one of three possible remedies exists.  The most that any of these Grievants could expect was one D-III appointment in the Division.  If the Arbitrator finds one candidate demonstrably superior to Wilder, the award would be an order to make that Grievant whole.  The record does not support such a determination.  If the Arbitrator finds all three Grievants superior to Wilder, but cannot say which of the three is superior, the remedy would be a properly-conducted selection process limited to those three Grievants, out of which a single Grievant would be appointed.  If the Arbitrator finds the process as a whole was flawed, the equitable remedy would be a properly-conducted selection process open to all the original unsuccessful candidates, out of which a single candidate would be appointed.  If such a finding were made, Grievants would not be entitled to a windfall by getting three-in-one odds instead of eight- or nine-in-one odds.

           
The League did not satisfy its burden of proving by a preponderance of the evidence that any of the Grievants was demonstrably superior to Wilder.  The selection of Wilder was consistent with relevant rules, regulations and policies.  The Arbitrator should deny the grievances as without merit.

OPINION

            The League bears the burden of establishing that the Department violated the MOU and its own policies in making this promotion decision--in this case, by appointing a candidate of lesser qualifications than one or more Grievants based on racial considerations.
           
After decades of civil rights litigation, it is no longer seriously questioned that law enforcement agencies may set hiring and promotion policies with the hope of achieving staff­ing at all levels roughly reflecting the civilian population.  The Department's AAP furthers this goal by mandating consideration of af­firm­a­tive action needs whenever candidates are "equally qualified."  Used in this limited fashion, affirmative action considerations violate neither the MOU nor the Department's policy of appointing based on merit.
           
A word must be said about the use of subjective and objective factors in making selec­tions.  Decision-makers must devise yardsticks to determine the presence of desired traits in a candidate.  Subjective measures of those traits are not necessarily invalid or discrimina­tory simply because they are subjective, nor are objective measures necessarily valid and non-discrim­ina­tory.  A measure is subjective if it depends on a personal evaluation of the candidate.  Such subjective measures are of concern primarily because they are sus­cep­tible to the in­fluence of individual values and judgments of the evaluator.  An objective measure seeks to standardize the method for detecting the presence of a desired trait, there­by eliminating the influence of individual values and judgments.  However, such objective yardsticks remain potentially troublesome because they may or may not actually measure the underlying traits sought.  Whether subjective or objective, a valid measure must be job-related and predictive of or correlated with important elements of the work required in the position.  The desired traits to be measured must bear some rational relationship to success in the position.  Yardsticks themselves must fairly measure the presence of the desired trait without reference to subconscious bias or stereotypes.
           
It is unlikely that supervisory potential could be judged by objective measures alone.  Such positions require the incumbent to exercise judgment and discretion--traits not easily tested by objective measures.  Those traits also are not necessarily correlated with time in grade or prior supervisory experience.  It is therefore common to evaluate the quality of candidates' experience as well as the length of service, and to consider intangible factors related to the use of judgment and discretion.  To weigh these intangible traits, it is also common to rely heavily on oral examinations similar to those in use in this case.
           
The Department considered Wilder's race at the final phase of this selec­tion.  Up to that point, Wilder was deemed one of three top candidates.  The Department's AAP re­quires consideration of affirmative action objectives where candidates are "equally qualified."  Therefore, this consideration was improper only if Wilder's qualifications were not at least equal to the other top candidates'.
           
The Arbitrator cannot second-guess the judgment of the interview panel regarding the candidates' performance in the oral examination.  The questions posed, on their face, were reasonable inquiries into candidates' supervisory goals and philosophies.  Only those managers saw and heard the candidates' responses.  Their observations resulted in a three-way tie.  On this record, it cannot be concluded that their judgment at this phase of the process was the result of improper considerations.  Thus, Wilder was at least equally qualified on the intangible factors.
           
The tangible, objective factors do not conflict with the results of the oral examination.  Any number of factors are arguably relevant in determining relative qualifications.  Wilder had the shortest length of service as a D-II and the least geographic detective exper­ience, but had unique IA and OIS experience.  As an outside candi­date, he met Cunningham's per­ceived need for new blood in the Division.  Grievants had more ex­per­ience specific to the functions of the Division, but less exposure to other facets of the Depart­ment's operations.  On this record, each is well-qualified for promotion, but none of them had sufficient qualifications to outweigh the strengths Wilder brought to the selection.
           
Rathburn considered Wilder most qualified because of a perceived opera­tional need for a minority supervisor.  He thus suggested that race was a bona fide occupational qualification ("BFOQ").  The AAP neither permitted nor required the Department to make race a BFOQ for any position.  On the contrary, it contemplated consideration of affirma­tive action objectives only as a tie-breaker among equally-qualified candidates.  However, Rathburn's misunderstanding of the function of affirmative action did not result in an improper preference for a less-qualified candidate in this case.  His role was limited to approving a selection from three equally-qualified candidates.  Consideration of affirmative action objectives was therefore permissible.
           
For all the above reasons, the Department did not violate the MOU or its own rules or regulations in selecting Wilder for the D-III position.

AWARD

            The Department did not violate any provision of the Lieutenant and Below Memoran­dum of Understanding, or of its own rules or regulations, in the selection of Cedric Wilder to fill the Detective III vacancy at issue in this grievance. 

            DATED:  April 7, 1992

                                                                                                                                                         

                                                                                       LUELLA E. NELSON - Arbitrator

 


    [1]       The Department disseminated a document dated January 1990, entitled the Sworn Paygrade Advancement Interview Guide.  The introductory memorandum attached to the document is dated July 23, 1990.  All of the relevant decision-makers testified that they first saw that document after the disputed selection in this case.  It is therefore concluded that the document was not in effect at the time of the disputed selection, and it has not been considered as an operative Department policy.

    [2]        Kerstein testified that the interview panel considered the candidates' personnel packages, but only looked at the previous five years' disciplinary history.  The Department introduced evidence of additional matters in the files of Anderson and Macis which were not considered by the interview panel.  As those materials would not change the result in this case, they will not be discussed herein.

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