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Title: Bethel School District and Public School Employees of Bethel
Date: June 1999
Arbitrator: Sandra Gangle
Citation: 1999 NAC 125

SANDRA SMITH GANGLE, ARBITRATOR

In the Matter of the Arbitration                                     )

between                                                                       )

                                                                                    )

PUBLIC SCHOOL EMPLOYEES OF                       )

BETHEL, an affiliate of Public School                           )

Employees of Washington,                                            )    Ann Monroe Grievance

                                                Association,                  )   

                          and                                                     )    DECISION AND AWARD

BETHEL SCHOOL DISTRICT,                                  )                                              

                                                Employer                      )

_________________________________________  )

 

Hearing Conducted:                              March 17, 1999

Representing the District:                       Craig W. Hanson, Attorney at Law
                                                             2120 Caton Way SW, Suite C
                                                             Olympia, WA  98502-1100

Representing the Association:                David G. Fleming
                                                            Public School Employees of Washington
                                                            P.O. Box 798
                                                            Auburn, WA  98071

Arbitrator:                                            Sandra Smith Gangle
                                                           
Sandra Smith Gangle,  P.C.
                                                     
       Commercial St. N.E., Suite 310
                                                           
Salem, OR  97301

Date of Decision:                                 June 1, 1999

                                                 BACKGROUND

            This matter came before the arbitrator pursuant to a collective bargaining agreement between the parties effective between September 1, 1996 and August 31, 1999.  Jt. Ex. No. 1.

            A grievance was filed in this matter on September 8, 1998.  See Joint Exhibit 2.   The parties, having been unable to resolve the matter during the grievance procedure, mutually selected Sandra Smith Gangle, Attorney at Law, 117 Commercial St. N.E., Suite 310, Salem, Oregon 97301, through selection procedures of the Federal Mediation and Conciliation Service or Washington Public Employment Relations Commission, as the labor arbitrator who would conduct a hearing and render a decision in the matter. 

            A hearing was conducted on March 17, 1999 in a conference room of the Bethel School District Administration Building, Spanaway, Washington.  The parties were thoroughly and competently represented by their respective attorneys throughout the hearing.  The District was represented by Craig W. Hanson, Attorney at Law.  The Association and the Grievant were represented by David G. Fleming, Attorney at Law.

            There were no objections to procedural or substantive arbitrability of the matter.  The parties were each afforded a full and fair opportunity to present testimony and documentary evidence in support of their respective positions.   The following witnesses appeared and testified under oath and were subject to cross-examination:  (a) For the District:  Lise Louer, Director of Classified Personnel; Donald Garrick, Principal of Frontier Junior High School; Barbara Ritter, Director of Applied and Vocational Learning; and Gerean Baginski, Assistant Principal at Spanaway Lake High School;  (b)  For the Association:  Ann Monroe (Grievant) and Patrick Lambert, Washington Public School Employees Association Field Representative.

            Written briefs were submitted by both parties in lieu of oral closing argument.  By mutual agreement, the parties extended the original date they had selected for postmarking their briefs, from April 23, 1999 to April 30, 1999.  Both briefs were postmarked in a timely fashion.  The District’s brief was received by the arbitrator on May 3.  The Association's brief was received on May 5.  The arbitrator officially closed the hearing and took the matter under advisement upon receipt of the Association's brief.

            The arbitrator has considered all the testimony and evidence offered by the parties at the hearing.  She has weighed the evidence and has given careful consideration to the arguments of the parties, as contained in their briefs.

                                     STATEMENT OF THE ISSUE

            The parties did not agree on a statement of the issue.  They stipulated, however, that the arbitrator would have the authority to frame the issue.  The Union framed the issue as follows:

            Did the District violate the collective bargaining agreement when it bypassed Ann Monroe (the Grievant) for the position of secretary to the principal at Frontier Junior High?  If so, what is the remedy?

The District framed the issue in this way:

            Did the hiring process reveal that the successful candidate had ability and performance substantially greater than that of the Grievant?

Having reviewed the record and briefs of the parties, the arbitrator frames the issue as follows:

            Did the District violate the collective bargaining agreement of the parties when it bypassed the Grievant for the position of secretary to the principal at Frontier Junior High and appointed a junior applicant to the position?   If so, what is the appropriate remedy? 

RELEVANT CONTRACTUAL PROVISIONS

ARTICLE II

RIGHTS OF THE EMPLOYER

Section 2.1.     It is agreed that the customary and usual rights, powers, functions, and authority of management are vested in management officials of the District.  Included in these rights in accordance with and subject to applicable laws, regulations and the terms of this Agreement, is the right to direct the work force, the right to hire, promote, retain, transfer, and assign employees in positions; . . . .

 

ARTICLE X

SENIORITY

Section 10.4.   The employee with the earliest hire date shall receive preferential treatment regarding route selection, shift selection, vacation periods, promotions, assignments, transfers, layoffs, and special assignments when ability and performance are substantially equal to those of employees junior to him/her.  If the District determines that seniority rights should not govern in the latter cases above, because a junior employee possesses ability and performance substantially greater than a senior employee or employees, the District shall set forth in writing to the senior employee or employees who applied for the job the reasons why the senior employee or employees have been bypassed.

Section 10.4.1.            An employee is not eligible for transfer or promotion while on a Plan of Improvement.

* * * * *

Section 10.5.   Seniority rights shall be effective within the job classifications.  General job classifications shall include the following without limitation:  . . ., Secretarial-Clerical, . . . (seven classifications).

* * * * *

ARTICLE XI

POSTING, PROBATION AND SEPARATION

Section 11.2.1.            Promoted employees shall serve a probationary period of fifty (50) working days.  During the probationary period, an unsuccessful promotion shall result in the employee’s return to the position previously held or an equivalent position.

Section 11.2.2.            It is understood that the implementation of Section 11.2.1 may impact other employees through no fault of their own.  Employees so affected shall be notified in writing that their assignment is based upon Section 11.2.1.

ARTICLE XV

GRIEVANCE PROCEDURE

Section 15.1.   For the purpose of this Agreement, a grievance is defined as an alleged violation, misinterpretation, or misapplication of a specific provision of this Agreement charged against the District by a classified employee.

* * * * *

Section 15.3.   Grievances shall be processed in the following manner and within the stated time limits:

* * * * *

            GRIEVANCE  -  ARBITRATION:

* * * * *

The scope of the arbitrator’s authority shall be limited to grievances arising from specific provisions of the Agreement, and the arbitrator shall be without authority to add to, subtract from, or alter any of the terms of this Agreement. . . . .

The arbitrator shall render a decision within thirty (30) calendar days following the conclusion of the arbitration hearing or submission of any post-hearing briefs.  The parties shall have fourteen (14) days in which to submit such briefs.

Each party shall bear its own costs of arbitration, except that the cost of the arbitrator, . . . shall be shared equally by the District and the Association.

The decision and/or award shall set forth the arbitrator’s findings of fact, reasoning, and conclusions on the issues submitted and shall be final and binding on all parties.

                                                                                    Jt. Exhibit No. 1

 

                                    STATEMENT OF THE FACTS

            The undisputed facts of this matter are as follows:

            The Grievant has been employed by the District since 1984.  See Exhibit U-6.  Her first assignments were as Library Clerk (five years), then Attendance Clerk (five years) at Spanaway Lake High School.  She transferred to a position as clerk/bookkeeper in the Applied Learning/Vocational Educational Department in 1994 and worked in that position until the spring of 1998, when she learned that her position was being cut for budgetary reasons.  At the time of the arbitration hearing, she was working as Medicaid Clerk for the Instructional Support Team.

            The Grievant applied in early August of 1998 for the position that is the subject of this grievance, as secretary to Donald Garrick, Principal of Frontier Junior High School.  She competed against five other candidates.  The selection process included a variety of performance-based tests and identical oral interviews, which were conducted a team of four interviewers, one of whom was Mr. Garrick himself.  See Exhibits D-6, U-3, U-4.  

            The Grievant was the most senior of the six applicants.  See Exhibits D-5, U-13. 

            The Grievant achieved the following scores on the performance-based tests:  Memo-Writing: 6/10; Letter-Writing: 5/10; Grammar: 17/20; Math Problem-Solving: 9/10.  See Exhibit U-1.  On her oral interview, she scored a combined total of 229.5 points from the four interviewers, or an average of 57.375 per interviewer.  Exhibit U-4.

            Anita Maughan, a Health Clerk at Roy Elementary School with approximately six years less seniority than the Grievant, was the successful applicant for the secretarial position.  The results of Ms. Maughan’s performance tests were as follows:  Memo-Writing: 26/40; Letter-Writing: 36/40; Grammar: 13/20; Math Problem-Solving: 10/10.  See Exhibit U-2.  Her oral interview scores totalled 208 points from the four interviewers, or an average of 52 points per scorer.  Exhibit U-3. 

            Principal Garrick himself made the final recommendation to the District personnel office that Ms. Maughan should be hired to fill the secretarial position.  Before making the recommendation, Mr. Garrick had independently conducted “reference checks,” by interviewing some of the previous supervisors of each of the applicants by telephone.  He believed it was critical to learn about each of the applicants’ past performance with the District, in order to properly evaluate and compare their likelihood of success in the job of school secretary.  

            During his telephone conversations with each of the various supervisors, Mr. Garrick asked how they would rate their prior subordinate’s performance in each of the following areas:  (1) her ability to maintain confidentiality;  (2) her attendance and work ethic;  (3) her strengths as a team player;  (4) her ability to organize and set priorities;  (5) her accuracy and judgment;  (6) her customer relations skills; and  (7) her ability to establish and maintain effective relationships.  He also asked each interviewee the following question:  Would you hire [the applicant] for school secretary.  See Exhibit D-8. 

            The score sheet that Mr. Garrick developed for the telephone interviews shows that a maximum of five points was achievable in each of the first seven performance areas.  No specific point value was allocated to the final question.[1] 

            For the Grievant, Mr. Garrick interviewed two individuals, Gerean Bazinski, an assistant principal at Spanaway Lake High School, who had supervised the Grievant in 1993-94, and Barbara Ritter, who had supervised the Grievant in the Vocational Education Department in 1998.  The Grievant’s scores on those two interviews as 12/35 and 15/35 respectively, based on the interviewees’ responses to the first seven questions.  Notes on the bottom of the sheets indicate that both Ms. Bazinski and Ms. Ritter answered “No” when asked whether they would hire the Grievant as school secretary.  See Exhibit D-7.   

            For Ms. Maughan, Mr. Garrick interviewed three persons, all of whom had worked with Maughan at Roy Elementary school.  The interviewees included Mr. Garrick himself, Sue Erb, the school secretary, and Larry Kuper, who had been Maughan’s immediate supervisor.  Garrick scored the results of Maughan’s reference checks (the first seven questions) as 34/35, 34/35 and 33/35 respectively.  See Exhibit D-8.  The score sheets show that all three of the interviewees answered “yes” when asked if they would hire Ms. Maughan as school secretary.

            Mr. Garrick did not review any of the formal performance appraisals that had been done of either the Grievant or Ms. Maughan during their respective tenure with the District.  See, e.g., Exhibit U-14, U-11.  All evaluations are kept in the District personnel office.  Also, with the exception of Barbara Ritter, Mr. Garrick did not call any of the persons whom the Grievant had identified as “references” on her application form.  The additional names that the Grievant had provided were Donna Septon, Greg Rawlings, John Nagele, Pam Larsen and Shelly Calligan.  See Exhibit U-6.  Also, Mr. Garrick did not call Marilyn Ash, who had supervised the Grievant in the Vocational Education Department between 1994 and 1998.  See Exhibit U-11.

            After the entire hiring process had been completed, including the telephone reference checks, Mr. Garrick concluded that Ms. Maughan had ability and performance substantially greater than the Grievant.  See Exhibit D-12.  On a ranking sheet which he submitted to the personnel office, he showed Maughan as the highest of the six candidates, with an overall score of “9” and the Grievant as the lowest, with an overall score of “3”.  See Exhibit D-11.  It is that conclusion, and the subsequent bypass of the Grievant for the secretarial appointment at Frontier Junior High, which flowed from it, that is the subject of the instant arbitration.

POSITIONS OF THE PARTIES

            A.        The Association:           The Association contends the District violated the parties' collective bargaining agreement when it failed to award the Grievant the position of secretary to the principal of Frontier Junior High.  Relying on Section 10.4 of the parties’ agreement, which is a “relative ability clause”, as well as arbitration decisions by arbitrators Howell Lankford, Cornelius Peck and Tom Levak, in which the provision itself has been interpreted and applied, the Association asserts that the Grievant should have been awarded the position.  She was the senior employee and no junior applicant demonstrated ability and performance that were “substantially greater than”, or, as Arbitrator Levak termed it, “head and shoulders above”, hers. The Association denies that the successful candidate, Anita Maughan, met the “substantially greater than” or “head and shoulders above” test, when compared to the Grievant.

            The Association asserts, first of all, that the Grievant met all of the criteria that were set forth in the position description for the secretarial position.  When she went through the negotiated appointment process, her test results were superior to those of all the other applicants, including Ms. Maughan.  Also, she achieved a higher score than Ms. Maughan on the standardized oral interviews that were conducted by a team of interviewers.

            The single factor on which the seniority bypass decision was made was Mr. Garrick’s selective reference-checking by telephone, which occurred after the objective testing and team interviews had been completed.  Those telephone interviews were grossly unfair, says the Association, because they focussed on only two short periods of time, the first when the Grievant had a personality conflict with one supervisor at Spanaway Lake High School back in 1994, and the second when she worked under a brand-new supervisor in Vocational Education in 1997-98.

            Mr. Garrick did not review the Grievant’s annual performance evaluation forms, which had been largely favorable to her.  Also, he did not contact any of the other past supervisors of the Grievant -- specifically Greg Rawlings, Marilyn Ash and Pam Larsen -- who had been familiar with her work during greater periods of time than the persons to whom he did speak.  If he had contacted those additional persons during the reference-checks, it is likely he would have had very positive feedback about the Grievant and a more fair assessment of her ability and performance in past assignments, argues the Association.

            Indeed, if the Principal had any doubts about the Grievant’s potential for success in the secretarial position, he was protected by language in the collective bargaining agreement that would permit him to replace her in the event she did not work out well in the new position.  Section 11.2.1 allows for a trial period of fifty (50) working days when an employee is promoted into a new position.  If the employee fails to work out, the employee is moved back to the same or an equivalent position as that which the employee had previously held.

            The Association requests that the arbitrator grant the grievance.  As a remedy, the Association asks the arbitrator to require the District to place the Grievant in the secretarial position immediately, with full backpay and benefits.

            B. The District: The District asserts that Principal Garrick properly determined that Anita Maughan possessed ability and performance “substantially greater than” the Grievant’s. .  The Grievant’s references were poor.  Therefore her likelihood of success in the new position was poor.

             The District points out that Principal Garrick treated “excellent references” as an important selection criterion from the very start of the hiring process.  On both the “Classified Position Analysis” form and the “Selection Criteria” form which Mr. Garrick submitted to the personnel office to initiate the posting for the secretarial vacancy, Garrick had indicated that “excellent references” were among the specific qualifications he would require. See Exhibits D-1, D-2.  Garrick believed it was critical to find out how each of the applicants had performed in their prior work situations, in order to determine how qualified they were and whether they would be successful in the new position.

            When Mr. Garrick conducted his reference checks on the Grievant, he learned that she had demonstrated some serious deficiencies in her past assignments.  Both of the persons he interviewed stated that they would not hire the Grievant as a secretary.   That was powerful evidence that the Grievant lacked the ability and performance necessary for success in the job.  When checking on Ms. Maughan, on the other hand, Garrick heard extremely favorable impressions.  Also, all the interviewees said they would hire Maughan as school secretary.

            The District acknowledges that the collective bargaining agreement requires the District to give preference to a senior applicant, unless a junior applicant has “substantially greater ability and performance” than the senior applicant.  The agreement does not provide any specific method by which such a determination can be made, however.  The District acknowledges that Mr. Standley, the past personnel officer, had required a fifteen percent differential in the overall scores of senior and junior applicants before a seniority override would be appropriate in filling a position.  The current personnel officer does not follow Mr. Standley’s approach, however, and the contract does not require it. 

            The District contends it has the unilateral authority, under Section 2.1, the Management Rights clause, to choose a method of determining the relative ability and performance of applicants.  Therefore, the District did not violate the agreement when it followed Mr. Garrick’s method, which included reference checks.  Based on a comparison of reference checks, the District determined that Ms. Maughan had substantially greater ability and performance than the Grievant.  Ms. Maughan was properly appointed to the secretarial position.  The grievance should be denied.

ANALYSIS AND DECISION

            The contract language which is applicable to this grievance is as follows:

 ARTICLE X

SENIORITY

Section 10.4.   The employee with the earliest hire date shall receive preferential treatment regarding route selection, shift selection, vacation periods, promotions, assignments, transfers, layoffs, and special assignments when ability and performance are substantially equal to those of employees junior to him/her.  If the District determines that seniority rights should not govern in the latter cases above, because a junior employee possesses ability and performance substantially greater than a senior employee or employees, the District shall set forth in writing to the senior employee or employees who applied for the job the reasons why the senior employee or employees have been bypassed.

                                                                                    Joint Exhibit No. 1

            The provision has been interpreted and applied in several previous arbitration cases involving the same parties.  See Public School Employees (PSE) of Bethel School District and Bethel School District (Arbitrator Howell Lankford, August 30, 1995) (hereafter referenced as the “Anderson Arbitration”);  Bethel School District and PSE of Washington, Bethel Chapter (Arbitrator Thomas Levak, December 9, 1993) (hereafter the “Edick Arbitration”); and Bethel School District and PSE of Washington (Arbitrator Cornelius Peck, November 27, 1990) (hereafter the “Fries arbitration”).

            While arbitrators are not generally required to follow prior arbitrators’ decisions, they do routinely consider as authoritative any previous opinions which have interpreted the precise contract language that is involved in a particular case.  See, e.g., Elkouri and Elkouri, How Arbitration Works (4th ed. 1994) at 425-30.  The previous award is considered to have stare decisis effect.  This theory is especially significant in cases where the parties have had an opportunity to renegotiate the disputed language after the prior arbitration decision was rendered, but they have declined to make any changes.  In such cases, the parties may be held to have adopted the prior award as a part of their contract.  Id. at 426 and cases cited in footnote 51.  As stated by Arbitrator Whitley McCoy in Pan Am. Ref. Corp., 2 ALAA para. 67,937 (1948):

            “[Where a] prior decision involves the interpretation of the identical contract provision between the same [employer] and union, every principle of common sense, policy and labor relations demands that it stand until the parties annul it by a newly worded contract provision.” 

            If a successive arbitrator were to depart from the predecessor’s interpretation in such cases, the stability of the parties’ labor relations would be jeopardized.   

            Arbitrator Howell Lankford stated, in the Anderson arbitration, that the quoted language “explicitly creates a seniority preference” in filling vacancies.  See Opinion at page 11.  Lankford agreed that an arbitrator should give “substantial deference” to the employer’s determination of the relative ability and performance of the various applicants for contested vacancies.  He clarified, however, that the District’s decision must actually be based on objective evidence of ability and performance, as opposed to subjective evidence or criteria unrelated to ability and performance.  Agreeing with opinions of other arbitrators who had interpreted similar language, Lankford said appointment of a junior employee would be justified “only when the employer finds some objective support for its decision” that the junior’s ability and performance were substantially greater than the senior’s. Anderson Opinion at p. 12, italics in original.    The personal preference of a supervisor, or a subjective belief that the junior would “fit in” better with the existing team because of the junior’s more agreeable personality or temperament would be inadequate reasons on which to base a decision that a junior employee manifests substantially superior ability and performance.  Id. at 14.  Specifically, he said a “bare reference to the ‘considered professional judgment by a supervisor’ or some other ‘je ne sais quoi’ quality” would violate the contract because it would “subtract from” the contract the express seniority preference language of Section 10.4.  Id. at13. 

            In the 1993 Edick arbitration, Arbitrator Thomas Levak acknowledged with approval that many arbitrators interpret the “substantially greater” language as requiring a showing that the successful junior employee’s ability and performance are “head and shoulders above” those of the unsuccessful Grievant, or “significantly, measurably and demonstrably superior” than the Grievant’s.  See Opinion at page 8, footnote 7.   While Arbitrator Lankford did not expressly reference the “head and shoulders” rule in the 1995 Anderson decision, he did appear to follow the same basic theory that Levak had advanced.

            Arbitrator Levak emphasized that the District must demonstrate objectivity and fairness in reaching a determination that a junior employee has substantially greater ability and performance than a senior applicant.  He quoted with approval the following statement by Arbitrator D.L. Howell in Screw Conveyor Corp., 72LA 434 (1979) in the Edick opinion:

            [T]he standards for comparison of applicants’ qualifications must be established in good faith; they must not be patently inadequate; they must be applied fairly and impartially; and the [Employer]’s decision that the junior applicant was better qualified must not be clearly unreasonable.     

            Arbitrator Lankford also emphasized that objectivity was an important factor in the decision-making process.  He gave the following concrete example.  Some supervisors might prefer a person with a “calm, controlled personality” and others might prefer a “high energy person”.  Such criteria are not objectively related to the applicants’ ability and performance, however; therefore, they are irrelevant and should not be considered, when comparing two applicants for a position.

            It is generally accepted that “substantially greater” ability and performance must be proven by “clearly discernible” means and must not be determined arbitrarily or capriciously.  See, e.g., Elkouri, How Arbitration Works (4th ed.) at page 611, 613.  As for the type of evidence that would meet the Employer’s burden, the authors provide the following laundry list: 

            [W]ritten, oral, performance or aptitude tests; trial period on the job; reliance upon a merit rating plan or upon the opinion of supervision; consideration of production records, attendance or disciplinary records, education, experience, physical fitness, and the like.”                               Elkouri, supra at 617.  
                                                                  

            Further, if the applicable collective bargaining agreement provides for a trial or break-in period on the job in conjunction with an appointment, such a trial period must be allowed a senior employee whose qualifications or experience are not quite as strong or extensive as those of a junior applicant, in order to allow the senior employee to demonstrate that he/she “can with some familiarization . . . achieve the necessary skills within a reasonable period of time to perform the job in an acceptable manner”.   Elkouri at 625-26.   Such a trial period is especially appropriate when there is no bumping involved as a result of the appointment and a trial period would not create a serious inconvenience to the employer.  See Elkouri, supra  at 626 and decisions cited in footnote 199.

            Looking now at the evidence in the instant case, the arbitrator finds that Ms. Maughan achieved slightly better results than the Grievant on the objective performance-based tests that were administered to all applicants.  Her Memo-Writing score was higher (65% as opposed to 60%), as was her Letter-Writing Score (90% as opposed to 50%) and her Math Problem-Solving score (100% as opposed to 90%).  The Grievant’s score was higher than Maughan’s, however on Grammar (85% as opposed to 65 percent).   

            Next, on the team interview, Ms. Maughan’s score was significantly lower than the Grievant’s (208 points as opposed to 229.5 points).  Therefore, any imbalance in favor of Ms. Maughan that was created by the performance-based tests was equalized by the outcome of the interview process.

            The telephone reference checks that were conducted by Mr. Garrick clearly tipped the balance in favor of Ms. Maughan, in the opinion of the District.  The question that the arbitrator must answer, therefore, is whether those reference checks were conducted fairly and impartially and provided satisfactory objective evidence to support the District’s decision.  For the following reasons, the arbitrator finds that they were not.

            First of all, Mr. Garrick only interviewed two of the supervisors that had worked with the Grievant over the fourteen years of her employment with the District.  Both of those supervisors (Ms. Bazinski and Ms. Ritter) had worked with the Grievant for relatively brief periods of time.  One of them, Ms. Bazinski, had had no contact with her for four years prior to the interview.  Following a dispute with Bazinski, the Grievant had transferred to a different department within the District, the Vocational Education Department.  She had then worked under Marilyn Ash for three years, followed by one year under Ms. Ritter, whose management style was somewhat different from that of Ms. Ash.

            For some unexplained reason, Mr. Garrick chose not to interview the supervisors who had had more lengthy involvement with the Grievant than either Ms. Bazinski or Ms. Ritter, nor did he interview those persons, such as Greg Rawlings[2] and Marilyn Ash, who had evaluated the Grievant’s work as average or above-average on her annual performance appraisals.  See generally Exhibits U-11 and U-14.[3] Also, Mr. Garrick ignored calling six of the seven persons whom the Grievant had identified as “references” on her application form for the secretary position.  See Exhibit U-6. 

            For Ms. Maughan, however, Mr. Garrick interviewed three people, each of whom had worked with the applicant over a continuous period of several years, including the most recent years.  Curiously, he included himself as one of the three and even scored his own “self-interview” when he tallied up and compared the total reference scores for the applicants.    

            This process indicates subjective partiality and bias on the part of Mr. Garrick, if not an outright avoidance of the objective hiring process that had been followed up to that point.[4]

The selection of “references” by Mr. Garrick seems to have been calculated to produce a negative view of the Grievant and a positive view of Ms. Maughan.   Indeed, if the principal had truly intended to conduct a fair and objective “reference check” of both applicants, it seems that he would have called at least a few of the persons identified by the Grievant on her application form as being familiar with her work performance. 

            Also, it appears that Mr. Garrick did not even read the packet of letters and work samples that the Grievant had included as a portfolio when she submitted her application.  Exhibit U-10.  If he had done so, he would have found that the negative verbal opinion Barbara Ritter expressed about the Grievant during her telephone interview was actually contradicted by a letter she had written in the Grievant’s behalf on August 15, 1998.  During her “reference check” interview, Ritter told Mr. Garrick that the Grievant’s “performance [was] below [expectations]; that she “[took] too much time on wrong type of detail” and “[took] too long to complete tasks”; that she had “problems with accuracy”; and that “her current position [didn’t] require many judgments”. See Exhibit D-7.  In her letter, however, Ritter had stated that the Grievant was “expert at using computer programs to create spread sheets and keep accounting records”; that she “communicated with teachers on a regular basis”; that “teachers found her to be responsive and always tactful”; that she was “competent in [her] position”; and that she was “a qualified candidate in a clerk, bookkeeping or office-related position”.  Id. at p. 8.  

            If Mr. Garrick had taken the time to read Ms. Ritter’s letter, he would have seen that Ritter’s verbal assessment of the Grievant’s performance was inconsistent with her written assessment and that her credibility was, therefore, questionable.[5]  This is a further indication that Mr. Garrick’s process of reference-checking was inadequate and arbitrary. 

            The arbitrator emphasizes here that she does not find “reference checks” per se to constitute violations of the collective bargaining agreement in this case.  Reference checks are ordinarily a proper method of learning about the past performance of prospective appointees to positions.  Indeed, employers routinely make phone calls and discuss applicants with prior supervisors as part of the selection process in any workplace environment.  Such a practice is part of the “law of the shop” and is usually quite reasonable. 

            However, in a situation like the instant case, where the ability and performance of two current employees are being compared and the collective bargaining agreement requires that the senior employee be preferred, unless the junior demonstrates “substantially greater” ability and performance, the employer must conduct reference checks in as fair and impartial a manner as is possible.  The employer should make a reasonable effort to gather information from the available sources of references, in order to get an overall picture of the applicants’ performance, good and bad, particularly in the applicants’ more recent assignments. Also, the employer should be careful to assess the possible biasses and credibility gaps in the interviewees’ opinions and to give appropriate weight to any comments that are inconsistent with other available evidence.  This is particularly important where, as here, a letter of reference has been written by the same interviewee that expresses quite different views of the applicant’s ability and performance than are being expressed verbally in the interview.

            Based on the overall evidence in the record, the arbitrator does not find that Ms. Maughan’s ability and performance were “substantially greater” than the Grievant’s.  Not only did the Grievant have greater seniority than Maughan, but she achieved roughly equal results on the objective tests and team interviews that were conducted of the applicants.  Her past performance evaluations showed that her supervisors had generally found her to be a satisfactory employee.  Finally, she demonstrated training and experience with office equipment and secretarial procedures which would be beneficial in meeting the requirements of the secretarial position.  Her training record showed that she had completed 400 hours of course work in accounting and business.  See Exhibit U-12.  

            The District relied upon some very biassed and incomplete “reference checks” in reaching its decision that Ms. Maughan had “substantially greater ability and performance” than the Grievant.  In doing so, it acted arbitrarily and capriciously and violated the collective bargaining agreement.  The grievance is granted.

 

AWARD

            For the reasons set forth in the preceding analysis and decision, the arbitrator has determined that the Employer violated the collective bargaining agreement of the parties when it bypassed the Grievant and assigned a junior employee to fill the secretarial position at Frontier Junior High School.  

            As a remedy, within ten business days following the close of the current school year, the Grievant shall be assigned as the secretary at Frontier Junior High or to an equivalent position to which the Union and the Grievant consent.  The District shall reimburse the Grievant for all lost wages and benefits which she has incurred as a result of the violation. 

            The arbitrator hereby retains jurisdiction of this matter for sixty days following the date of this Award, in order to assist the parties with implementation of the remedy. 

            The parties shall share equally the arbitrator’s fee and expenses.

            DATED this _______ day of June, 1999.

 

                                                           ___________________________________

                                                             SANDRA SMITH GANGLE, Arbitrator

                                                     

[1] The first seven items on the interview sheet were type-written.  The final question was, however, hand-written.

[2] Evidence in the record shows that Greg Rawlings still works for the District.  It appears, however, that Ms. Ash left the District in 1997.

[3] In the Fries arbitration, cited herein, Arbitrator Cornelius Peck noted on page 9 that the District had failed to give consideration to the very favorable performance appraisals that the Grievant had received during her tenure with the District. He seemed to indicate that a review of performance appraisals would be appropriate, when the District was comparing in-District applicants for transfers.

[4] The arbitrator notes also that the most significant question asked during the interview was whether the interviewee would hire the former subordinate as a school secretary.  By answering this question on his own interview sheet, Mr. Garrick clearly demonstrates a bias in favor of his own former staff member.

[5] At the hearing, Ms. Ritter testified that she had written the letter to help the Grievant get a job outside the District, as opposed to an in-District transfer.  She also said she did not believe the verbal report she gave to Mr. Garrick was inconsistent with her letter of reference, which she considered “a generic letter”.  Her explanation was not persuasive to the arbitrator, however.

 

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