28 day free trial

 

 

  

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

Search arbitrators | National Arbitration Center | Search awards 

 

Title: Wenatchee School District and Wa. State Council and American Fed. of State County and Municipal Employees
Date: June, 1995
Arbitrator: Jack Calhoun
Citation: 1995 NAC 110

BEFORE THE ARBITRATOR

 

IN THE MATTER OF THE GRIEVANCE                           )

ARBITRATION BETWEEN:                                                )

                                                                                              )

WASHINGTON STATE COUNCIL OF COUNTY            )

AND CITY EMPLOYEES, AMERICAN                             )            OPINION

FEDERATION OF STATE, COUNTY, AND                      )             AND

MUNICIPAL EMPLOYEES, AFL-CIO                               )            AWARD

LOCAL 846,                                                                         )  

     Union,                                                                                )PERC NO.10938-A-94-1071)

                                 and                                                         )

WENATCHEE SCHOOL DISTRICT NO. 246,                   )

    Employer.                                                                           )

 

--------------------------------

 

Jack H. Calhoun

Arbitrator

 

Hearing Held

April 13, 1995

Wenatchee, Washington

 

--------------------------------

 

 

 

 

 

 

 

 

 

REPRESENTATION

 

 

FOR THE UNION:                                                             FOR THE EMPLOYER:

 

Audrey B. Eide                                                                Phillip R. Johnson

General Counsel                                                          Attorney at Law

Washington State Council of                                 Johnson, Gaukroger &

County and City Employees                               Crossland, P.S.

P.O. Box 6519                                                               P.O. Box 19

Lynnwood, WA  98036                                                    Wenatchee, WA  98807-0019


BACKGROUND

            The union and the employer are parties to a collective bargaining agreement that sets forth the terms and conditions of employment, including job selection, for employees in the bargaining unit.  During the fall of 1993 the position of assistant head custodian became vacant.  After the hiring process was completed and the successful candidate named, the union filed a class action grievance alleging the employer had violated the collective bargaining agreement in making its selection for the vacant position.  A hearing was held on April 13, 1995.  A briefing schedule was set and the matter was deemed submitted on May 11, 1995.

ISSUE

            The parties agreed that the issue is whether the employer violated the collective bargaining agreement in selecting the assistant custodian and, if so, what is the proper remedy.

RELEVANT CONTRACT PROVISIONS

            The following provisions of the collective bargaining agreement are relevant to the issue in dispute:


            ARTICLE II - MANAGEMENT CLAUSE

 

Neither this Agreement nor the act of meeting and negotiating shall be construed to be a delegation to others of the policy-making authority of the Board, which authority the Board specifically reserves unto itself.  The management of the District and the direction of the work force is vested exclusively in the Employer subject to the terms of this Agreement.  All matters not specifically and expressly covered or treated by the language of this Agreement may be administered by the Employer in accordance with such policy or procedure as the Employer from time to time may determine.  Management officials retain the right and obligation to determine the method, number and kinds of personnel by which operations undertaken by employees in the unit are to be conducted.

 

ARTICLE XXIII - WORK CHANGES

 

. . .

 

(c)        Job Selection

 

Selection of the assignment of an employee to a new job shall be as determined by the District's evaluations, past experience and relevant job skills except that preference shall be given for seniority in the District, if all other factors are considered equal between or among the applicants.

 


            STATEMENT OF FACTS

            In the fall of 1993 the position of assistant head custodian at Wenatchee High School became vacant.  A notice of opening was posted, which described in general terms the nature of the work involved and the qualifications expected of prospective applicants.  A complete job description for the position was on file in the personnel office.  It described in detail the duties, education, experience, knowledge, and abilities required of the successful applicant.  It stated that in addition to serving as lead person, the incumbent of the position planned, organized, and supervised the work of the staff engaged in custodial work.  It also stated that the incumbent trained and instructed employees.  Under knowledge and abilities required of the successful candidate, the description included the ability to plan, direct, and evaluate the work of others, and to train others.

            In preparation for the selection process, the school's management team, which was made up of the principal, two assistant principals, and the athletic director, met and determined the key qualities needed by the person selected to fill the position.  They decided managing and dealing with people, resolving conflict, and handling confrontations was the most difficult part of the job.  They also decided that to be successful, the person selected should have shown an ability to deal with people, solve problems, lead others, be creative, and express organizational skills.

            One of the assistant principals, Jon DeJong, who had responsibility for the custodial staff among his other duties, was in charge of the interview and selection process.  He named an interview committee made up of his subordinates on the custodial staff.  The committee interviewed and rated four applicants for the position.

            One of those interviewed was Mary Jane Gurnard, a 20-year employee of the school district who had about 10 years of experience in the district as a custodian.  She had also worked as an office manager in charge of collecting and accounting for money from certain school activities.  The job became more complex with the passage of time, and due to a lack of training, she began to have problems with job performance.  She transferred to a graveyard custodial job because she could make more money and she needed to be with her seriously ill husband during the day.  At one time she served as assistant head custodian for one and one-half years.

            During her recent employment as a custodian, Ms. Gurnard was evaluated four times by DeJong.  He rated her satisfactory in all areas of her work and made several noteworthy comments about her performance: "Keep up the positive attitude!"  "You are friendly and helpful to both building staff and outside groups."  "I appreciate the quality of your work.  Teachers have commented on the good work you do."  "You work well with teaching staff and project a positive image of our school to the public."  "I appreciate your flexibility and willingness to help in any way possible."  "You project a very positive attitude about the school."  "Thank you for your willingness to do tasks that aren't part of your normal routine."  "You work well with the public and promote a positive image of our school."

            Mark Flones was another of the applicants who was interviewed by the committee.  He had been employed by the school district for three months as the events custodian prior to the time he applied for the assistant head custodian position.  Prior to that, he worked four years doing auto body repair and approximately four years doing a variety of maintenance and cleaning activities, including specific janitorial jobs.  The committee had no performance evaluations on Flones.

            On his application, Mr. Flones listed Jon DeJong and Lynn O'Keefe as two of his four references.  Mr. O'Keefe is the head custodian and served as one of the members of the interview committee.  Mr. DeJong's secretary is the wife of Mr. Flones, and the athletic director is the brother of Mr. Flones.  Flones and DeJong are personal friends and hunt together.

            Dwayne Jordan, a night custodian at the middle school since the fall of 1991, also applied and was interviewed for the open position.  He had on occasion substituted as head custodian.  He had received satisfactory performance evaluations from his supervisor.  The comments on his evaluations indicated he was enthusiastic about the job, took pride in being a part of the school, was professional in manner, worked well with teachers, and remained open to changes.  The comments went on to note that he was responsible, could be counted on to follow through on tasks, worked well with students and served as a model for them, and was self-motivated.

            Mark Trimble, who substituted as assistant head custodian and had worked as a custodian at the high school since 1989, was the other school district employee who applied for the opening.  He assisted Lynn O'Keefe at the high school.  Trimble's performance evaluations were all satisfactory.  Comments made by DeJong indicated he did good work, had a good attendance record, did extra work, had a good attitude, and helped present a positive image of the school. 

            At the time of the individual interviews with each candidate, each committee member had access to the candidate's application and references.  Jon DeJong directed the members on what to focus: leadership skills, team building, organizational skills, and people skills.  He considered those qualities as the key to being a successful assistant head custodian.  All applicants were asked the same questions and their responses were rated by each member of the committee.  Each member ranked his top candidate based on his opinion of how each would do in the job.  Each member also gave a point rating to each candidate.  The point rating resulted in the following:  Ms. Gurnard, 277 points; Mr. Flones, 253 points; Mr. Jordan, 220 points; and Mr. Trimble, 178 points.

            Mr. DeJong did not use the total point ratings to determine the top candidate.  He had each committee member give him a list of his candidates from top to bottom.  Those results showed:

                        Lynn O'Keefe:                     1.            Flones/Gurnard

                                                                        2.            Jordan

                                                                        3.            Trimble

 

                        Mike Broderson                  1.            Flones

                                                                        2.            Gurnard

                                                                        3.            Trimble

                                                                        4.            Jordan

 

                        Mike Miller               1.            Gurnard

                                                                        2.            Jordan

                                                                        3.            Flones

                                                                        4.            Trimble

 

                        Jon DeJong                      1.            Flones

                                                                        2.            Gurnard

                                                                        3.            Jordan

                                                                        4.            Trimble

 

            After the lists were submitted to DeJong, a discussion was held in which DeJong reiterated the qualities they were looking for in the successful applicant:  leadership skills and the ability to organize.  The members decided it was a close call between Flones and Gurnard.  They knew who had what seniority, but they did not consider it.  They also knew Flones had no evaluations and that he had experience in general maintenance work but not much in school custodial work.

            Although Ms. Gurnard had more experience, after a lengthy discussion the committee agreed that Flones had stronger leadership skills and abilities.  Since that was to have been their primary concern, as directed by DeJong, the consensus of the committee was that Flones was the best candidate.  He was later offered and accepted the position.

            Over the last several years, approximately 80 percent of the individuals who were promoted were the most senior employee.  There have been cases where the most senior employee did not get the job.  In a recent case at Lewis and Clark School, the successful applicant was not the most senior.  The union did not aggrieve the matter.

            After the interview committee completed its work, Mr. DeJong reviewed the personnel files of the candidates, including their evaluations, except Flones, who had no evaluation.  DeJong found nothing to change his mind.  The ultimate hiring decision was DeJong's.

            Since as far back as 1985, the union has sought though negotiations to change the language of Article XXIII(c) to a strict seniority clause.  The district, on the other hand, has always resisted.  As a result, the language is the same at present as it was in 1985.

POSITION OF THE UNION

            The union contends the language of Article XXIII(c) has been the same over a long period of time.  Until recently, promotions went as the collective bargaining agreement states:  Once applicants met the qualifications for the job, they were considered equal and seniority then was used to determine who received the job.

            Just prior to this promotion, there was a change in administrations.  As a result of that change, the promotion process was changed.  There was an interview process and, based on that process, an applicant was chosen.

            Apparently, the interview team did not consider evaluations, experience, and job skills.  If it did, it is obvious that a number of the applicants met the qualifications for the job. 

            Seniority was not given preference; in fact, it was not considered.  A person with only three months at the school district and no previous school custodial experience or any strictly custodial experience was given the position.

            Custodians who had held the same position previously and had served as custodian for 10 years or more applied for the position.  They did not get it.

            The arbitrator should find that the collective bargaining agreement was violated.  He should order that the process be redone correctly, or make the selection himself.

POSITION OF THE SCHOOL DISTRICT

            The school district contends that the language of the collective bargaining agreement allows it to make hiring decisions based on the relative ability of the candidates.  Since the agreement does not dictate how the district is to determine relative ability, this function is left to the discretion of the district under the management rights clause.  The district designed a fair and reasonable method for determining relative ability.

            The management and direction of the work force and policy-making authority is reserved to the district under the agreement.  Hiring decisions were properly delegated to Mr. DeJong and he properly determined the qualifications of the position.  Although he could have chosen the successful candidate alone, he involved individuals in the process who would be working with the incumbent of the position.

            The agreement is clear and unambiguous and it should not be given a meaning which is not expressed.  It is clear as to hiring criteria and to the district's right to administer such criteria in a reasonable and fair manner.

            The relevant contract language is a "relative ability" clause, not a "sufficient ability" clause as the union argues.  Seniority is considered only when all other facts are equal between candidates.

            Who has the burden of proof is not the controlling consideration in relative ability cases.  The evaluation of employees is primarily a function of management and management's right should be deferred to when the record indicates that right was exercised in good faith, there was a reasonable basis for the conclusion drawn, and the result was not arbitrary, capricious, or discriminatory.  An action is not arbitrary or capricious when there is room for two opinions, however much it may be believed that an erroneous conclusion was reached.

            The agreement should be construed as a whole.  If it is interpreted as the union suggests, the phrase "if all other factors are considered equal between or among the applicants" would be rendered meaningless.  It is this phrase that preserves for the district the right to compare applicants based on the relative ability of each.  It allows the district to seek the best rather than a sufficient candidate.

            There has been no past practice of hiring the most senior candidate.  The district has applied the clear and unambiguous language of the agreement basing hiring on the relative ability of the applicants, with preference given to seniority if other factors were equal.  The union did not prove there was a past practice.

            The history of negotiations over the agreement shows that the union consistently sought to obtain a strict seniority clause, which the district successfully resisted.  The arbitrator should not grant that which the union was unable to obtain through bargaining.  That the clause was the subject of negotiations supports the district's assertion that no past practice exists.  The district would not resist the union's position during negotiations and then take the opposite potion when hiring.

            The union did not prove that the change in administration caused the district to change hiring procedures.  Even if it did, the district has that right under the agreement.  Each of the applicants who were interviewed possessed the technical skills to be a competent custodian.  The position was not for another custodian, however, but for a management position that required additional qualifications.  A candidate was sought who had skills related to supervision, confrontation, leadership, public relations, flexibility, organization, problem solving, managing people, efficiency, and self-opinion.  Arbitrators have permitted consideration of other factors as well as technical skills in determining employee qualifications.

            The union suggests that several of the factors considered by the district in making its selection were not job-related skills.  They were, however, in the opinion of Jon DeJong.  Personality, flexibility, attitude, and communication skills are all important in dealing with the staff, teachers, students, and the public.

            Seniority is not the equivalent of experience, and experience is not the only criterion in forming a judgment of ability.  Experience is not in itself a factor in determining fitness and ability except to the extent it may tend to increase one's skills and ability.

            The district considered evaluations to determine whether they shed a different light on the candidates.  Jon DeJong reviewed evaluations after interviews were completed.  Evaluations, however, were not the most important factor in hiring considerations.

            Based on hiring criteria and job requirements, the other candidates were not equally qualified with Mark Flones.  While each candidate was a competent custodian, there were substantial differences in the key qualifications, such as people skills, problem solving, leadership, creativity, and organizational skills.  The entire interview committee came to a consensus regarding Flones' superiority.

            Mary Jane Gurnard had considerable experience and was a warm, caring person.  DeJong testified she had difficulty relating to people and had demonstrated impatience in the past.  She was weak in dealing with other custodians, staff, and outside persons, particularly in confrontational situations.  Moreover, she did not demonstrate problem-solving or leadership skills, or have clear ideas on how to motivate and build teamwork.

            Ms. Gurnard was evaluated as having problems in the following areas:  dealing with others; focusing on job priorities; exemplifying dignity, courtesy, and respect rather than confusion and frustration; managing accounts; asking for help; working with administration; teamwork; problem solving and diffusing; preventing rather than reacting; controlling hot buttons; learning new technology and equipment; developing systems; and training others to act in her absence.  She was placed on probation for mismanagement of her accounting department, failure to train staff, and for violating district accounting principles.  Her evaluations showed her to rank average or below in communication skills and ability to relate to others, problem solving, and flexibility.  Her evaluator's comments indicate she failed to accept responsibility and to learn and develop management skills.

            Mark Trimble had custodial skills and experience, but he lacked the qualifications the district sought.  During his interview, he offered no specific answers, did not demonstrate problem-solving skills, desire or ability to make things run more smoothly, was not assertive, and lacked confrontational skills.

            Dwayne Jordan did not demonstrate problem-solving ability or leadership skills.  DeJong doubted his ability to handle confrontational situations or challenges.  While he may be a competent custodian, he lacked the leadership and motivational skills necessary to be a good crew manager.

OPINION

            Employees seniority does not exist outside the collective bargaining relationship as expressed in the agreement between the parties.  Whatever seniority rights employees have gained must be measured entirely by the agreement.  The clause of the collective bargaining agreement called into question by this dispute is straightforward as far as seniority language is concerned.  Selection is to be determined by the district's evaluations, past experience, and relevant job skills.  If all other factors among the applicants are considered equal, preference is to be given to seniority.

            The clause is called a relative ability provision because, while it may require the employer to consider and compare several qualified employees, only when there is relative equality in qualifications is the employer required to consider seniority.  Relative ability provisions do not confer automatic entitlement on qualified senior employees.

            Although relative ability provisions do not require employers to necessarily promote the most senior qualified applicant for a position, such provisions do confer certain rights on senior applicants.  When an employer exercises its judgment and decides to promote a junior employee over a more senior employee, it has an obligation to establish that its decision was fair and reasonable and was not arbitrary, capricious, or discriminatory.

            The standards for comparison of applicants' qualifications must be adequate and established in good faith.  They must be applied fairly and the decision to select a junior employee must not be unreasonable.

            Generally, relative ability provisions in collective bargaining agreements are intended to give considerable weight to seniority.  Differences between candidates must be shown to be measurable and significant before bypassing a senior employee can be justified.  There must be a definite, distinct, substantial, and significant difference between employees, with respect to ability to perform the work, in favor of the junior employee if the senior employee has the basic ability to do the work.  Interlake Steel Corp., 46 LA 23 (Luskin 1965).

            There are no restrictions in the agreement on the criteria the employer may use in determining candidates' relative job skills to successfully perform the job.  Absent such restrictions, the employer was free to determine the qualifications necessary to perform the work.  The only implied restriction was that the employer not act arbitrarily or capriciously in choosing the successful candidate.  A fair and impartial procedure in candidate selection was to be followed.

            Factors used to measure ability of applicants must be based on objective criteria, be job related, and properly measure the applicant's ability and qualifications to perform the job.  When other criteria are utilized, the employer must show that they will accurately predict job performance.  Marshalltown Area Community Hospital, 76 LA 978 (Smith 1981).

            When attitude has some bearing on the job, it may be considered as a part of the criterion of ability, but not if it has no bearing.  When the nexus has been established, the consideration of attitude when making promotion decisions is permissible.  This happens frequently when the job has supervisory elements and the employer establishes the need for a person who can cooperate with peers and provide leadership to subordinates.  Other situations where attitude is important and relevant are where the position receives little supervision and where there is much public contact.  Labor and Employment Arbitration, Bornstein and Gosline general editors, Matthew Bender, 28.03(3), Vol 2, 1995.

            Under the terms of the agreement, the district had sufficient latitude to determine what relevant job skills were necessary to successfully perform the duties and responsibilities of assistant head custodian.  It was altogether reasonable for the district to determine that leadership, problem solving, communication, and personnel management skills were qualities needed by the successful candidate.  Those qualities have significant bearing on how well the assistant head custodian would do the job.

            The procedure the district utilized to fill the vacant position was not arbitrary or capricious.  It was a fair and impartial process that was established in good faith.  Standard questions were asked each candidate.  After each interview, committee members ranked the candidates.  The members then discussed the relative abilities of the candidates focusing on the qualities DeJong indicated were essential to successful job performance.  Thereafter, they reached a consensus that Mark Flones was superior to the other three candidates.

            There is nothing in the agreement that requires the district to select the most senior qualified employee.  The language of the article in question is clear and unambiguous.  There was no proof that a past practice of hiring only the most senior candidate existed.  To be binding, a past practice must be unequivocal, clearly enunciated and acted upon, readily ascertainable over a reasonable period of time, and accepted by both parties.  The fact that the union had tried to change the language of the article during several negotiation sessions suggests the language of the article does not support the union's position on the past-practice argument.  Moreover, one of the union witnesses testified that the most senior candidate was selected only 80 percent of the time.  It is fundamental that an arbitrator should not grant a party that which it could not obtain in bargaining.  There is no evidence to support the union's contention that a change in the school district's administration caused a change in hiring procedures.

            In summary, I find that the district had ample latitude under the collective bargaining agreement to set the qualifications or job skills needed to perform the duties and responsibilities of assistant head custodian.  It followed a fair and impartial process in making its selection without acting in an arbitrary or capricious manner.  While Mr. DeJong's supervisor-employee relationship with Mr. Flones' wife and his personal relationship with Mr. Flones may be suggestive of bias, none was shown.  To the contrary, the testimony regarding the selection process of the three committee member witnesses belied such suggestion.  Their testimony and demeanor persuaded me they made independent judgments using the criteria set forth by DeJong.  They properly concluded that seniority need not be given preference since other factors were not equal among the candidates.

            Employer decisions, where there is an area of latitude and discretion, should not be overturned on grounds that the arbitrator might have reached a different conclusion.  Accordingly, I conclude the grievance should be denied and will enter an award reflecting that conclusion.

AWARD

            The grievance is denied.

            Dated this _____ day of June 1995.

 

                                                                                                                   

                                                                                    Jack H. Calhoun

 

11-94WA

 

Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search  
Employment Law Memo | EEOC Info | NLRB Info | Arbitration | Articles | Law Firms | Site Map 

 

Get your 28 day trial now 



LawMemo, Inc.
Post Office Box 8173 Portland, OR 97207
Phone: 877 399-8028