Title: Wenatchee School District and Wa. State
Council and American Fed. of State County and Municipal Employees
BEFORE THE ARBITRATOR
IN THE MATTER
OF THE GRIEVANCE
STATE COUNCIL OF COUNTY
STATE, COUNTY, AND
Union, )PERC NO.10938-A-94-1071)
SCHOOL DISTRICT NO. 246,
FOR THE UNION:
FOR THE EMPLOYER:
Audrey B. Eide
Phillip R. Johnson
Attorney at Law
State Council of
Johnson, Gaukroger &
County and City
P.O. Box 6519
P.O. Box 19
Wenatchee, WA 98807-0019
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
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.
The following provisions of the collective bargaining agreement are
relevant to the issue in dispute:
II - MANAGEMENT CLAUSE
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.
XXIII - WORK CHANGES
. . .
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
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.
Mike Broderson 1.
Jon DeJong 1.
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
The grievance is denied.
Dated this _____ day of June 1995.
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028