State of Oregon, Department of Transportation and
Oregon Public Employees Union
IN ARBITRATION PROCEEDINGS
PURSUANT TO AGREEMENT BETWEEN THE PARTIES
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.
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.
behalf of the Union:
Lynn-Marie Crider, Esquire, Oregon Public Employees Union, 1730
Commercial Street, SE, P. O. Box 12159, Salem, OR 97309-0159
behalf of the Employer:
Stephanie M. Harper, Esquire, Assistant Attorney General, Department of
Justice, Labor and Employment Division, 1162 Court Street, NE, Salem, OR
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
45 - FILLING OF VACANCIES
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
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
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
45.3A.B - FILLING OF VACANCIES
2. DMV Only.
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.
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.
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
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.
its third-step response to this grievance, the Department asserted, in
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
... 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
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
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:
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:
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.
Assist customers with all
aspects of driver licensing, vehicle registration and titling as well as
interpret and apply applicable laws, rules, regulations and policies.
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.
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.
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.
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
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
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.
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
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
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.
recalled that, when asked why he should be selected, Grievant seemed to
assume his interviewers were familiar with his track record. 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.
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.
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.
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
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’
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.
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.
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
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.
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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, for the reasons that follow, the central
concern with this selection is not the subjects covered in the interview,
but the selection process itself.
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.
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.”
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.
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.
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.
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
E. NELSON - Arbitrator[COMMENT1]
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.
 Error! Main Document Only.. Describe what you envision are the duties of an Office Leader.
What experience do you have that qualifies you for this position?
What is “excellent customer service?”
Give some examples of your excellent customer service skills.
Tell us about a time when you used your public
relations/communication skills to resolve a difficult situation?
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?
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?
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.
Describe your leadership style.
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?
Why do you want this position?
Why should we select you for this position?
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.
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.
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.
Date Text on the date case is actually completed, to replace the Date