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Title: State of Oregon, Department of Transportation and Oregon Public Employees Union
Date: January 7, 1998
Arbitrator: Luella E. Nelson
Citation: 1995 NAC 116 

IN ARBITRATION PROCEEDINGS

PURSUANT TO AGREEMENT BETWEEN THE PARTIES

 

In the Matter of a Controversy

between

OREGON PUBLIC EMPLOYEES UNION,

and

STATE OF OREGON, DEPARTMENT OF TRANSPORTATION.

RE:            Grievance of Peter Borho

 

ARBITRATOR'S

OPINION AND AWARD

 

 

 

                                                                                            

     

This Arbitration arises pursuant to Agreement between OREGON PUBLIC EMPLOYEES UNION (“Union”), and STATE OF OREGON, DEPARTMENT OF TRANSPORTATION (“Employer,” “Department,” “DMV,” or “ODOT”), 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 November 6, 1997, in Portland, Oregon.  The parties had the opportunity to examine and cross-examine witnesses, introduce relevant exhibits, and argue the issues in dispute.  Both parties submitted the matter on closing oral argument.  The parties consented to an extension of time for the preparation of this Opinion and Award.

APPEARANCES:

On behalf of the Union: 

Lynn-Marie Crider, Esquire, Oregon Public Employees Union, 1730 Commercial Street, SE, P. O. Box 12159, Salem, OR   97309-0159

On behalf of the Employer:

Stephanie M. Harper, Esquire, Assistant Attorney General, Department of Justice, Labor and Employment Division, 1162 Court Street, NE, Salem, OR   97310

 

             ISSUE

Did the Employer violate Article 45 or Article 45.3A.B Section 2 of the 1995-97 Collective Bargaining Agreement when it did not select the Grievant for the vacant Office Leader 1 position at Sandy?  If so, what is the remedy?

 

   RELEVANT SECTIONS OF AGREEMENT

ARTICLE 45 - FILLING OF VACANCIES

Section 1.  Vacancies will be filled based on merit principles with a commitment to upward mobility through the use of lists of eligible candidates, except for direct appointments, transfers, demotions, or re­em­ployments.  Lists shall be established through the use of tests which determine the qual­ifi­ca­tions, fitness, and ability of the person to perform the required duties.  The Department and the Agency retain all rights, except as modified in Articles 45.1-45.6, to determine the method(s) of selection and to determine the individuals to fill vacancies.

Section 2.  Except for the Agency layoff list and Articles 45.1-45.6, the Employer retains all rights to fill a vacancy using any of the following methods or lists as appropriate.  The appropriate Agency layoff list shall take precedence over all other lists and reemployment, direct appointment, and severely handicapped appointments.

...

Section 3.  The Employer agrees to give employees a minimum of two (2) weeks notice regarding open examinations.  The notice shall include duties and pay of the position, the qualifications required, the time, place, and manner of making application, and other pertinent information. ...

...

ARTICLE 45.3A.B - FILLING OF VACANCIES (ODOT, Parks)

...

Section 2.  DMV Only.

(a) Any vacancy to be filled within the Agency shall be filled first by hiring from the Agency layoff list.  Second, the Agency agrees to consider Agency promotion list when such a list is available, before requesting any other list.

...

(e) If two (2) or more candidates are deemed equal, the employee with the most seniority in grade will obtain the position.  Seniority means length of service with this Agency in grade without  break in service. 

               FACTS

Grievant is the Motor Vehicle Field Office Leader 1 (“Office Leader 1” or “MVFOL-1") at the Department’s Lloyd Center facility.  He grieved his non-selection as Office Leader 1 at the Department’s Sandy facility.  The successful candidate, William Meyers, was a Motor Vehicle Representative 2 (“MVR-2”) in Sandy.  In a memo to Grievant dated August 27, 1996, the selecting official, Customer Service Manager Thaddest Reynolds, described the basis for the selection as follows:

The criteria used in the selection process was [sic] a combination of the applicants’ interview, Experience and Training, and the Application submitted.  The desired attributes we were seeking in this process were Leadership Qualities, Team Orientation and Partici­pa­tion, Knowledge of the position and Applicants who lead by example.  These were some of the primary attributes we were seeking.

In its third-step response to this grievance, the Department asserted, in relevant part:

The language of the first sentence [of Article 45, Section 1] does not require the use of merit principles for transfers.  Thus, even if [Grievant’s] assertion that merit principles were not followed is accurate, it is not a violation of the collective bargaining agreement. 

... The interview process is a widely used and relied on method to select candidates, and was the method the Agency determined to be appropriate.  Based on the results of the interviews, one of the applicants was selected for the position. 

The interview questions were structured to be [sic] evaluate candidates’ suitability to the re­quire­ments of the vacant position.  All interviews were all conducted by the same panel; the same questions were asked of all applicants, and their answers were all scored using the same scoring guidelines.  This standardized approach to interviews gives all applicants the same opportunity to score well and be selected. 

[Grievant] was provided the same opportunity as the other applicants, and we interpret this consistency of opportunity to be a cornerstone of merit principles. ...

...

... Section (e) quoted above indicates that if two or more candidates are be [sic] deemed equal, seniority is the “tie-breaker.”  We interpret Section (e) to pertain to the top candidates.  The information available to this office indicates that there was not a “tie” between the Grievant and one or more top candidates, and therefore the “tie-breaker” provision of the language was not triggered.

....

THE SELECTION PROCESS

The job announcement at issue covered Office Leader 1 positions in three offices.  It required one year of experience as an MVR-2.  It described the following duties and responsibilities[1]:

The person in these positions will be responsible for the operation of a DMV field office.  The Office Leader 1 will provide leadership for excellence in the DMV program at the local service area; represent the office in dealings with agency management, other governmental entities, community groups and customers; participate directly in service delivery activities and have face-to-face contact with the public processing customer transactions.... Major duties include: 

 

Ø                   Assign and schedule the work of field office employees, direct employee work activities; assess employee performance; participate in the interview process and provide feedback to assist in selection and hiring decisions; and provide appropriate training. 

Ø                   Maintain harmonious relationships among staff members, resolve minor disputes or complaints and address various service-delivery problems that may arise.

Ø                   Assist customers with all aspects of driver licensing, vehicle registration and titling as well as interpret and apply applicable laws, rules, regulations and policies.

Ø                   Responsible for the overall security, operation and maintenance of a facility, assigned property, equipment (including computers, terminals and supplies) and for the security and confidentiality of agency documents. 

Ø                   Accountable for all receipts (cash and checks) and ensuring that all reports are submitted correctly.  Ensure that security procedures related to cash receipts and sensitive documents/items (license plates and renewal stickers, drivers license blanks, etc.) are closely followed. 

Ø                   Responsible for meeting waiting time goals and maintaining staff levels within budgetary limitations. 

Ø                   Participate as a member of the work team as outlined by team agreements.  Duties of a team member may include preparing for meetings; preparing, presenting and sponsoring action items and crew team proposals; implementing approved team proposals; and giving honest, open feedback during critiques.

It noted the “team-oriented environment” and the expectation that employees would “participate in team devel­op­ment and team management of their section.”  It advised employees there was no test, but that an abundant number of candidates would result in a screening process; it did not describe the nature of that screening process.  It instructed applicants not to attach resumes, letters of recommendations, or work examples, noting “this information should be submitted at the time of interview.”

The Employer developed a minimum qualified list based on the applications.  Five candidates received oral interviews.  Reynolds, who manages both the Sandy and Gresham offices, and Jay Bosse, who was then the Regional Manager for the Metro Region, conducted the interviews.  The eleven questions[2] were graded on a scale of 0 (no response) to 5 (Excellent), and the scores were totaled.  The record does not reflect how or by whom the interview questions were developed.

Reynolds testified he expected the Sandy and Gresham offices to work together as one large team.  At the time, the Department was short-staffed throughout the state and had recently had poor service levels and negative publicity.  He testified Meyers outscored Grievant on many questions because, unlike Grievant, Meyers talked about team development, team activities, cross-training, setting the tone for a small office, and changing the Department’s image.

According to Reynolds, Meyers discussed his related non-DMV experience, whereas Grievant dis­cussed only his DMV work.  Although Grievant had the advantage of having been an Office Leader, Meyers compensated by describing his work in filling in for absent Office Leaders and Managers as “training” for Office Leader.  In answering ques­tions about difficult situations and “bending the rules” to resolve a problem, Grievant described commonplace events and issues addressed by clear policies, whereas Meyers described more challenging policy or customer relations issues.  In discussing how to improve an employee’s balance rate, Reynolds found Grievant’s approach less satisfactory, in large part because he did not suggest involving a manager in the problem.  He testified that, had Grievant described an actual situation in which he dealt with this problem successfully, he would have scored more highly.

Reynolds summarized Grievant’s approach throughout the interview as being focused on his own development, whereas he found Meyers’ approach more oriented toward team development.  Grievant’s suggested means of improving employee morale were activity-related, whereas Meyers’ solutions were more team-oriented.  He found Grievant’s description of his leadership style too inflexible for a small office.  He noted Grievant was already an Office Leader, whereas Meyers was looking for career growth.

Reynolds recalled that, when asked why he should be selected, Grievant seemed to assume his in­terviewers were familiar with his track record.[3]  Meyers discussed his work experience in more detail, noting he was doing a good job, was giving back value, was community based, and was already invested in the community; he also described positive public comments about his work outside the Department.

Reynolds testified Meyers was heavily involved in community activities and was active in a number of community groups such as the Chamber of Commerce, the Cub Scouts, and the School Board; that infor­ma­tion does not appear in either interviewer’s notes.  In Reynolds’ opinion, Meyers knew what was going on in the area.  Reynolds testified it was important to have the “face of the community” in the office.

After tallying the scores on each question, Bosse and Reynolds ranked Grievant fourth; they disagreed regarding the first and second rankings, but both put Meyers within the top two candidates.  Neither interviewer reviewed performance evaluations, supervisory recommendations, or other Department personnel docu­ments in making these rankings, but based them solely on the interviews.

Reynolds reviewed the top three candidates’ applications, and also conducted reference checks for them.  He testified references were available only from the Department.  Reynolds, Bosse, or a third manager had supervised each of the top three candi­dates.  Meyers’ manager gave him a glowing recommendation.  The reference check disclosed one of the top three candidates had less lead experience than his interview response would suggest; that candidate had outscored Grievant on that response.

COMPARATIVE WORK HISTORY

The parties agree that Grievant and Meyers were both qualified for the position, and that Grievant has more seniority in grade.  The following compares the significant milestones in their careers with the Department, as shown by personnel documents and the candidates’ applications:

                       GRIEVANT

                     MEYERS

Month/Year      Position  

6/86-10/87      MVR-1

11/87-9/89      MVR-2

10/89-8/93      MVR-3

[7/91-6/92      Developmental  assignment as Manager, East Portland CDL Office]

[7/92-8/93      MVR-3 CDL Examiner, East Portland CDL Of­fice]

8/93-12/94     MVFOL-1, Lloyd Center

12/94-7/96     MVFOL-1, Lake Oswego

7/96-present MVFOL-1, Lloyd Center

 

 

Month/Year            Position

6/84-8/87           MVR-1

8/87-9/96           MVR-2

[12/94-12/95     Out of Class assignment   as MVFOL-1, Sandy]

[6/96-9/96         Out of Class assignment as MVFOL-­1, Sandy]

 

 

 

 

 

 

 

Only limited information is available about Meyers’ work history.  His application lists two prior positions.  He worked as a Public Information Officer for the Portland Public Schools for 3 years, from 1978 to 1981; he previously worked ten years as a disc jockey and news reporter for various radio stations.

Grievant’s application does not list his experience prior to becoming an MVR-3.  He testified he worked for a hardwood floor company from 1978 to 1985, supervising eight employees.  In the Lloyd Center office, Grievant worked a Tuesday-through-Saturday schedule.  He testified one reason he transferred to the Lake Oswego office was to get a Monday-through-Friday work schedule.  When a reor­gan­iza­tion eliminated the Office Leader 1 position in Lake Oswego, he was offered a position as Customer Service Manager, the equivalent position to Reynolds.   He turned that offer down because he did not want to leave the bargaining unit.  The Agency transferred him back to Lloyd Center.  He testified the Sandy Office Leader position was attractive, in part, because it offered a Monday-through-Friday schedule.

Grievant’s first evaluation as an Office Leader, in March 1994, noted that, when he first became the Office Leader at Lloyd Center, the office had “an atrocious cash balancing record,” but that Grievant’s efforts to improve performance led to a 100% balance record for the month of December.  It also commended him for training staff, juggling resources, and nearly eliminating overtime.  It recommended that he receive training in team concepts.

Bosse prepared Grievant’s March 1995 evaluation.  It focused on Grievant’s work at the Lake Oswego office, but noted Bosse had also supervised him in the past.  It noted Grievant had improved the office by establishing consistent performance standards for employees.  It also noted his increased flexibility in interpreting policies and procedures, as well as his greater appreciation for the needs of the office in light of the needs of his service area.  No 1996 evaluation is in evidence.

     POSITION OF THE UNION

The Employer elected to look only at promotional and transfer candidates.  Where employees are equal, the Agreement requires that vacancies be awarded to the employee with the most seniority in grade.  Grievant was at least equal to Meyers, and was more senior. “Equal” must be objectively measured and related to the ability to do the job.  The Employer is more able to produce evidence of equality or inequality, and thus has the burden to demonstrate a real difference between the candidates.  It has not met that burden.

The relevant selection criteria are in the class specifications, test plan, position description, and post­ing.  Grievant has acquired and honed the required skills and knowledge over the years.  The record does not show Meyers’ skills and knowledge.  However, he has not had the opportunity to learn one of the neces­sary skills--testing for licensure of all classes of vehicles, including commercial vehicles.  That work is done by MVR-3's, a position he has not held.  Meyers is not unqualified, but Grievant is at least equal.

Ability and competence are the heart and soul of merit selection.  The Employer must look at those factors, not simply verbal facility in an interview.  The Employer does not have the discretion to define “equal” on an ad hoc basis, particularly without setting out the criteria in written documents.  The alleged critical factor here, talking about teamwork during the interview, was not disclosed to candidates.

Unlike some contracts, the Agreement does not specifically delegate to management the decision of which candidates are qualified or most qualified.  However, even under such contracts, arbitrators have not allowed management to do whatever it wants.  They have overturned management decisions that were arbitrary, capricious, or discriminatory.  The Agreement does not require deference to management’s evalua­tion of relative competence; however, even if it did, this particular decision was arbitrary.

Prior performance is part of merit.  The Employer has always evaluated Grievant’s work highly.  It was arbitrary and in violation of the Agreement to ignore those evaluations.  Arbitrators have over­turned selec­tion decisions where an employer singled out one factor without notice to employees, or based a deci­sion solely on what the employees said in an interview and ignored prior job performance.

Nothing in either interviewer’s notes supports Reynolds’ testimony that Grievant was interested in himself rather than others.  His testimony was a post hoc justification rather than a substantiated fact.  Con­trary to the Employer’s counsel, there is no suggestion of flippancy in Grievant’s interview answers.  He may not have been eloquent, but flippant is an unfair characterization.  The job for which Grievant applied was not the “game” of interviewing; it was the job of helping co-employees serve the public.  Grievant has performed that job superbly.  He has been tested and found at least equal to the successful candidate.

The interview instrument used was not predictive of job performance.  Grievant was rated “average” on knowledge, despite his job performance.  This was an evaluation of his verbal facility rather than his abil­ity to do the job.  Both Grievant and Meyers were well known to at least one interviewer, Bosse, who had previously interviewed Grievant, promoted him to Office Leader, evaluated him, and offered him a man­a­ger­ial job.  Bosse could have based his evaluation on actual knowledge of Grievant’s job per­formance; instead, he apparently based it on the interview alone.  His assessment of Grievant on this basis made no sense.  His interview assessments of Grievant’s answers regarding customer service, helping employees im­prove bal­ance rates, teamwork, and enhancing morale contradicted Grievant’s consistent job performance evaluations in these areas.  Grievant was downgraded because one of his reasons for seeking the position was the Monday-through-Friday schedule it offered.  Meyers was already working this schedule, so the schedule was not a factor for him.  That factor did not determine whether the candidates were equal.

The Employer’s decision to make its selection based solely on interviews suggests that management was not deciding based on competence and ability, but on some other factor.  The Employer liked the idea of keeping Meyers in Sandy because he had been there a long time; Lloyd Center is not a popular location, so it was convenient to keep Grievant there.  There may also have been some reluctance to give Grievant the job he wanted because he declined to go into management.  Those were not permissible selection factors.

It is necessary to talk to prior supervisors to decide whether candidates are relatively equal.  The Employer has not explained why it did this for only three candidates.  The Union does not suggest that a full reference check must be made on every candidate; however, when the process used results in rejection of a senior candidate who is equal to the successful candidate, the process must be held up to scrutiny.

The grievance should be sustained.  It is traditional to award promotion to the senior equally qualified candidate in cases such as this.  Grievant should be awarded the Office Leader position in Sandy.  To compensate him for the requirement to work on the Lloyd Center schedule, he should be awarded an extra day of vacation for each Saturday he worked after having been denied this position.

     POSITION OF EMPLOYER

The Union bears the burden of proof.  It must demonstrate Grievant was at least equal to Meyers in all respects in order for seniority to be relevant.  The Employer has the specific contract right to determine who is “deemed equal.”  The process used here is the same process used state-wide at various agencies.  Simple promotion of the most senior person on a list would be inconsistent with the merit prin­ciples bar­gained into the Agreement.

Much like sports, each application for a position is a new game.  The process built into the system applies to every situation.  Vacancies are to be filled on the basis of merit and upward mobility, using lists of candidates.  No special process applies to candidates on lists.  Qualifi­ca­tions are determined in developing lists.  Seniority is not the next criterion to apply after the list is developed.  At each step--application, inter­view, and reference checks--the Employer must decide which candidates will move to the next step.

The Agreement does not limit the factors on which the Employer may base a selection.  It may rely on any factor that does not violate the law or the Agreement.  It has the right to determine how to make selec­tions.  “Equal” is not the same as “basic ability to do the job.”  Such a test would make it impossible to man­age the selection process.  Questions of experience and work history are built into the interview process, as well as the initial application.  It takes time to develop questions to draw out those factors.

The process used was not flawed.  Applicants submitted an application calling for their work history.  Each candidate selected for an interview had the same opportunity at the oral interview.  In the interview, each candidate had to decide how to play the game.  The reference checks that followed the interviews were properly limited to those candidates who distinguished themselves in the interview.  The pro­cesses of inter­viewing, hiring, and selection are not scientific.  In this case, the oral interview was the place to sell oneself.  If a candidate oversold himself, it would backfire in the reference check.  Candidates cannot assume interviewers are equal in knowledge about candidates.  Grievant may have assumed Bosse would select him because of his familiarity with him; however, that would be unfair to Reynolds.

The interviews were not conducted arbitrarily.  Both interviewers’ notes reflect the basic char­acter­istics of Grievant’s answers.  As the direct supervisor of the Sandy office, Reynolds had the discretion to run that office in the style that worked best for him.  Some of Grievant’s answers were almost flippant; others focused on his own needs and desires and did not reflect well on him.  Overall, he did not appear as team-oriented as Reynolds preferred.  He had the minimum qualifications, but was not the best candi­date.  A candidate’s style, communication skills, and ways of answering questions are legitimate selection and screening factors.  Bosse rated Grievant more highly than did Reynolds, but both ranked him fourth.

Grievant’s experience did not outweigh the inadequate analytical and communications skills he de­mon­strated.  The factors of time in position and task performance, as reflected in his application, were relevant but not determinative.  His application did not reflect the shallow thinking revealed by his interview answers.  Meyers’ interview answers reflected an understanding of the Department, particularly the team concept, Department values, and the emphasis on customer service.  His thoughtful answers showed he was more qualified.  Part of the learning process of an interview is to think carefully in answering questions; if a candi­date does not do well the first time, the thing to do is to practice and do better in the next interview.

The interview screened out another candidate, in addition to Grievant.  Regardless of experience, any of the five candidates who did not effectively transmit information in an interview could be excluded.  The Agreement does not require otherwise.  It does not require the Employer to infer capabilities beyond those articulated by the candidate.  Grievant had the same opportunity as the other candidates to articulate his experience and work history; instead, he simply expected his interviewers to know of his experience.  Selecting him on that basis would have been unfair to applicants who went out of their way to explain their experience.  Disregarding inadequate answers would make the selection process unmanageable.

If the Arbitrator determines that the selection process was flawed, she must consider the fact that there were four candidates other than Grievant, three of whom scored more highly in the interview.  It would be inappropriate to promote him in preference to all three candidates.  The grievance should be denied.

       OPINION

PRELIMINARY MATTERS

The Agreement requires selection based on “merit principles with a commitment to upward mobil­ity.”  The Employer is required to determine “qual­ifi­ca­tions, fitness, and ability of the person to perform the required duties.” Where two candidates are “deemed equal,” ­seniority prevails.  This is classic "rela­tive abil­ity" or "tie-breaker" language found in numerous collective bargaining agreements.  Under such language, “equal” does not mean “exactly equal;” approximate or near equality is sufficient to bring seniority into play.  The Employer has greater access to the evidence on this point.  Once a showing has been made that the senior employee is qualified for the position, the bur­den shifts to the Employer to demonstrate the superiority of the junior employee.  While the junior employee need not be “head and shoulders” above the senior employee, the difference must be more than de minimis.

Management has the right and duty to gauge relative qualifications.  That deter­mina­tion cannot be made in a manner that is unreasonable, arbitrary, capricious, or discriminatory.  Unlike seniority, qualifi­ca­tions often cannot be measured directly or mechanically, but must be inferred from other factors which reasonably indicate the extent to which a candidate possesses a par­tic­ular attribute.  The Employer is entitled to great deference regarding the relevant selection factors, so long as they are fairly administered and reason­ably measure the desired attributes.  A yardstick which is irrelevant to the qualifications necessary for the partic­ular job, or which does not reasonably measure qualifications, is an unreasonable, arbitrary, and capricious yardstick to apply to that job. 

To a limited extent, the Employer is correct that applicants must choose how to “play the game” of ap­plying for a vacancy.  However, the “game” must be fairly administered.  Two  fundamental require­ments of fairness are (1) all applicants must be subject to the same “rules of the game” and (2) the “rules” must be rea­sonably related to the goal of the “game.”  The Agreement is part of the “rules of the game.”  Any selection device therefore must be designed to select for the attributes required by the Agreement.

An oral interview may be an appropriate part of the process of determining qualifications, so long as it reasonably measures relevant attributes.  At a minimum, such an interview must be specif­ic­ally related to the job requirements of the position; fair and reasonable in its content; developed and administered in good faith and without discrimination; and consistent with contractual require­ments.  To meet these standards, it is customary to have interview questions developed by labor relations professionals, in consultation with the selecting officials, rather than by the selecting officials themselves.  This is particularly true if the selecting officials are familiar with one or more candidates, as it reduces the possibility that questions may inad­vertently be skewed to account for a candidate’s known weaknesses or strengths.

The job requirements of most positions do not include skill at being interviewed.  If an employer uses an interview, it has the obligation to ensure that interviewing skills do not become the selection factor unless those skills are job-related or unless all other selection factors have been exhausted.  It must weigh relative qualifications for the available position in a manner that makes job-related attributes a significant factor in the selection decision.  There are two common means of achieving this goal.

An interview is often used as a tie-breaker among top-ranked candidates.  In a tie-breaker interview, or oral board, inter­viewers routinely have no access to other information about the candidates beyond that gleaned in the interview.  Such a process is a reasonable selection device because job-related attributes have already been thoroughly considered in winnowing out lesser candidates prior to the interview.  The remain­ing candidates are thus comparably qualified, except for the subjective attributes revealed in the interviews.

It is unreasonable, arbitrary, and capricious to use an interview as a screening device where the only prior screening has been for minimum qualifications or to limit the interviews to a manageable number.  Such a bare bones screen­ing leaves a candidate pool of largely untested qualifications.  In that instance, to avoid selection based only on interview skills, interview results must be weighed with the results of appro­priate tests of job-related qualifications.  Depending on the job, those tests might include written or mechanical tests, a review of work history, reference checks, or other measures of performance.

An interviewer who is familiar with one candidate cannot properly permit that knowledge to trump the information gained in the interview; otherwise, such candidates would have an unfair advantage (or disadvantage) compared to less familiar candi­dates.  On the other hand, an interviewer cannot ignore the knowledge gained through experience with a candidate.  If a candidate’s interview performance differs noticeably from known job performance, that performance puts the interviewer on notice that the interview device is flawed, and thus an unreasonable method of screening candidates.  This is particularly so if the interview has not been preceded by the screening necessary to make the interview a true tie-breaker.

THE MERITS

This vacancy posting did not specify that an emphasis on the “team concept” would be a selec­tion factor.  However, it did note the team environment in which the candidate would work.  One of Grievant’s prior performance appraisals had noted the need for training in team principles.  Two interview ques­tions (6 and 9) specifically inquired into team development issues.  Grievant thus had prior notice of the need to be aware of the team environment, as well as an opportu­nity to address this area during the interview.  It would not have been unrea­son­able to consider awareness of and commit­ment to team principles as a selec­tion factor.  It also would not be unreasonable to consider leadership style, for want of a better term, for an employee in a lead position.  However, the Employer was obligated to ­ensure that it was those factors, rather than merely verbal abilities, that were being measured.  Although some of the other decision factors cited by Reynolds are more troublesome,[4] for the reasons that follow, the central concern with this selection is not the subjects covered in the interview, but the selection process itself.

Contrary to the initial response to Grievant’s inquiries, the selection was not based on a “combina­tion” of the application, interview, and experience and training.  A combination implies the infor­ma­tion from each was merged into the final decision.  Here, the inter­view was used as a screening device, with the full combination considered for only three candi­dates.  The decision to eliminate two candidates from fur­ther consideration was based solely on the interview.  However, the Employer had not previously reviewed all qualifications to select the top candidates for interview.  On this record, the only prior review was of the applications, not applicants’ job performance or skills.  It was therefore unreason­able, arbitrary, and capricious to use the interview alone as a screening device at this stage.

On this record, at least one of Grievant’s interviewers had some notice that the interview could be a flawed screening instrument for this candidate pool.  Grievant had performed well as Office Leader--well enough to be offered promotion to a managerial position where he would oversee Office Leaders.  His evaluations, including one prepared by Bosse, singled out for praise his job per­formance in areas where both interviewers deemed his interview performance to be average or below average.  These results should have suggested to Bosse, at least, that the interview did not accurately measure Grievant’s “qualifi­ca­tions, fitness, and ability ... to perform the required duties.”

For all the above reasons, it is concluded the Employer violated Article 45 in making the selection, in that it failed to use tests of “qualifications, fitness, and ability ... to perform the required duties” to eliminate some candidates from consideration.  Because the selection process did not include proper consi­der­ation of those attributes, it is premature (and, on this record, impossible) to decide whether Grievant was at least equal to the successful candidate.  The Arbitrator therefore can neither make a finding on that ques­tion nor fashion a remedy based on such a find­ing­.  Instead, the appropriate remedy is to repeat the selec­tion process without the errors identified so the candidates’ rela­tive qualifications can be fairly measured.

The Employer shall repeat the selection process for those candidates for the Sandy Office Leader 1 position who remain interested in that position.  If the Employer uses an interview as a tie-breaker, it shall first conduct appropriate screening to select the best qualified candidates for interview based on all of their qualifications.  ­­If it uses an interview before completing such screening, it shall weigh appropriate additional tests of “qualifications, fitness, and ability ... to perform the required duties” in conjunc­tion with the inter­view results in making its selection among candidates.

As agreed by the parties, the Arbitrator will retain jurisdiction over any disputes arising out of the remedy ordered in this matter.

         AWARD

1.            The Employer violated Article 45 of the 1995-97 Collective Bargaining Agreement when it did not select the Grievant for the vacant Office Leader 1 position at Sandy. 

2.            As a remedy, the Employer shall repeat the selection process for those candidates for the Sandy Office Leader 1 position who remain interested in that posi­tion. If the Employer uses an interview as a tie-breaker, it shall first conduct appropriate screening to select the best qualified candidates for interview based on all of their qualifications.  ­­If it uses an interview before completing such screening, it shall weigh additional tests of “qualifications, fitness, and ability ... to perform the required duties” in con­junc­tion with the inter­view results in making its selection among candidates. 

3.            The Arbitrator retains jurisdiction over the Remedy portion of this Award and any dispute arising therefrom.

 

DATED:  January 7, 1998

 

 

    ___________________________________

      LUELLA E. NELSON - Arbitrator[COMMENT1] 


[1]           The listed job duties, and those in the official MVFOL-1 position description, resemble those in the MVFOL-1 class specification, except that the class specification does not discuss the team concept.

[2]                       Error! Main Document Only..   Describe what you envision are the duties of an Office Leader.

2.                  What experience do you have that qualifies you for this position?

3.                  What is “excellent customer service?”  Give some examples of your excellent customer service skills.

4.                  Tell us about a time when you used your public relations/communication skills to resolve a difficult situation?

5.                  As you know it is very important to maintain an acceptable balance rate.  What would you do to help a team member improve their [sic] balance rate?  And what if the employee didn’t improve?

6.                  What is your perception of working as a member of a team?  What do you do in your own office to promote the team concept?

7.                  Would you bend a rule or policy if you felt that your actions would resolve or avoid a customer complaint?  (If yes) - other than an elderly lady wanting an ID card without a birth certificate, Give an example.

8.                  Describe your leadership style.

9.                  The Sandy and Clackamas offices can be very hectic, with long lines, what would you do to improve morale and team spirit in the office?

10.               Why do you want this position?

11.               Why should we select you for this position?

 

 

 

[3]           Bosse was Grievant’s manager at the time of the interviews.  Reynolds testified he had worked with Grievant, and may have briefly supervised him.  Reynolds testified he had not worked with Meyers.

[4]           In particular, it was improper to emphasize keeping the “face of the community” in an office as a selection factor.  The Agreement expresses no preference for promotion from within an office or for residents of the community where an office is located.


 [COMMENT1]

 

COMMENT:                  Make sure the first address on page 1 is the right address for these parties--Oregon address for Pacific Northwest clients, California address for Californians.

Do Date Text on the date case is actually completed, to replace the Date Code.

 

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