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Title: Kaiser Foundation Hospitals and Service Employees International Union, Local 49
Date: July 28, 2000
Arbitrator: Burton White
Citation: 2000 NAC 139

IN THE MATTER OF THE ARBITRATION

between

Service Employees International Union,
Local 49

Union

and

Kaiser Foundation Hospitals and Kaiser Foundation Health Plan of the Northwest

Employer

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)               Opinion and

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Before Burton White, Arbitrator

 

 

 

Dates of Hearing:    June 28, 29, 30, 2000

Place of Hearing:   Portland, Oregon

Advocate for the Union:   Nancy Lea
Field Organizer
3536 S.E. 26th Avenue
Portland, Oregon 97202-2901

Advocate for the Employer:                

William A. Rector
Senior Human Resources Consultant
500 N.E. Multnomah Street, Suite 100
Portland, Oregon 97232-2099

                  

Contents

Issue

Relevant Language

Background

Terminology

The Dispute

Position of the Parties

Position of the Union

Position of the Employer

Discussion

Arguments Deemed Irrelevant to the Issue

Analysis Relating to the Issue

Additional Comments

Award

Appendix A

 


The parties to this dispute are Local 49 of the Service Employees International Union, AFL-CIO, CLC (Union) and Kaiser Foundation Hospitals and Kaiser Foundation Health Plan of the Northwest (Employer).

The arbitration was held pursuant to the provisions of the February 15, 2000 Letter of Understanding entitled “SEIU/Kaiser Permanente Non-Attorney Arbitration Ground Rules” and the 1999-2001 collective bargaining agreement (Agreement) between the parties (Jt. Ex. 1).

The hearing was held on June 28, 29, 30, 2000, in Portland, Oregon. The parties stipulated that the matter was properly before me as Arbitrator to issue a final and binding decision. Both parties participated in the hearing; each had full opportunity to present evidence, call and cross-examine witnesses, and argue its case.[1]

The hearing ended on June 30, 2000, with oral closing arguments. Following those presentations, the record was closed.

ISSUE

The parties presented me with the following written statement of the Issue:

Did the Employer violate the Current Bargaining Agreement Article 13 regarding job bidding for Leadpersons, when the Employer did not select for Leadpersons in the Portland Area Call Center two individuals that were Leadpersons prior to a restructure on or about September 12, 1999?

If so, what shall the remedy be?

        The meanings the parties give to the words “Leadperson” and “restructure” are addressed in the Background section of this Opinion (see page 3).


RELEVANT LANGUAGE

The Collective Bargaining Agreement

SCOPE OF AGREEMENT

2.1-2.5 [Omitted.]

The parties recognize that the Employer has the right and obligation to assign and schedule employees in a manner compatible with efficient operations. ***

2.7-2.8 [Omitted.]

11.0            SENIORITY

11.1            Seniority of employees shall be based on their last date of hire with the Employer (KPNW) within a position represented by the Union, (except for accreted employees. The seniority date for accreted employees will be the date they came into a classification, which is currently represented by SEIU.) Seniority shall not be broken by leaves of absence of less than ninety (90) days or by medical or disability leaves of absence.

11.2                Seniority shall be used to determine the assignment of start times within a shift. Permanent start time changes of greater than two (2) hours may be voluntarily accepted by a work group employee, otherwise the job position shall be posted.

11.3                [Omitted.]

***

13.0                JOB BIDDING - LEADPERSONS

13.1                Permanent lead positions will be posted for application by employees in the work group where the responsibilities exist. If no employee in the immediate work group qualifies for the lead position, the position will be posted so that other interested and qualified candidates may apply. Selection of permanent leadpersons and the assignment of temporary leadpersons shall be at the sole discretion of the Employer.

13.2                 All qualified candidates for a permanent lead position will be interviewed and if not selected, will be informed of the reasons for non-selection.

13,3                It is not the Employer’s intent to select lead personnel for the purpose of circumventing established procedures for filling a non-lead position.

13.4                Leadpersons shall receive eighty cents ($.80) per hour above the top step referred to above of any classification of employees being supervised.

13.5                 The Employer will make its best effort to provide sufficient time for the leadperson to accomplish their [sic] and regular duties within their normal shift.

***

48.0                DISPUTES

48.1                [Omitted.]

48.2                *** Any problems arising in connection with the application or the interpretation of this Agreement may be submitted as a grievance.…

STEP 1:

48.3                *** Written grievances shall be brought to the attention of the immediate supervisor within fifteen (15) calendar days of their occurrence or from when the employee reasonably should have been aware of their occurrence. ***

[Remainder of Article omitted.]


BACKGROUND

        Kaiser Foundation Hospitals and Kaiser Foundation Health Plan of the Northwest (KFHNW) is the northwest region of a not-for-profit health maintenance organization that provides a wide variety of hospital and out-patient services to “members” in locations throughout the country. KFHNW operates several patient care and administrative facilities in northwest Oregon and southwest Washington. The Union represents health care personnel who work in a number of classifications and in a variety of work settings throughout the region.

This dispute arises out of a “restructure” of work schedules of those employees classified as Medical Assistant I (MAI) who work in the Employer’s Regional Call Center (RCC or Center). The arbitration addresses grievances filed by two MAIs who were not retained as Leadpersons after the restructure.

Terminology

Restructure. The parties refer to a readjustment in work schedules as a “restructure”.

Leadperson. Leadpersons are members of a classification within a work group who are charged with the general responsibility to “guide employees to maintain a smoothly running work unit and [to] observe all department policies and procedures”. (Un. Ex. 7.) Lead positions are posted and filled under the terms of Article 13 of the Agreement. (Jt. Ex. 1). Leadpersons earn a differential of eighty cents ($.80) an hour above the top step in their classification (Jt. Ex. 1, § 13.4)

Job Title. Members of the MAI classification work in sites throughout the region. (Un. Ex. 7.) MAIs are also referred to Medical Receptionists (Un., Ex. 3), Call Agents (Un. Ex. 4), and Member Intake Specialists (Testimony of Union Witness).

        Terminology Specific to this Case

The Center. The Regional Call Center was established in early 1997 to centralize patient scheduling. Before that, appointments were made locally, that is, at any one of the several Medical Centers operated by the Employer throughout the region.

Leadpersons and Call Agents. In this dispute, the parties refer to an MAI in a lead position as a “Lead” or “Leadperson” and to an MAI without such responsibilities as a “Call Agent” or a “staff MAI”.

The Work. The work of a Call Agent MAI at the Center involves interacting with patients to schedule health care appointments. In the course of their work, these employees receive appointment requests by phone and the Internet, obtain details sufficient to assess the acuity of need, consult provider availability and schedule appointments. They initiate communications to patients to schedule specialty care referrals, reschedule appointments, and correct errors, among other things.

Leadpersons may perform Call Agent functions for a portion of a workday, but they have additional responsibilities. The Floor Leads “provide assistance and direction to the Call Center Agents”. The Quality Assurance Lead “monitors all Call Center Agents”. The Error Lead deals with “appointment errors”. The Training Lead “train[s] all new hires”. Task Leads handle such matters as cancellations and referrals to specialty care. (Er. Ex. T.)

        Service Hours. The Center provides patient scheduling services fifteen hours a day, seven days a week. For all times material to this arbitration, the Center opens for service to health system members at 6:30 a.m. and closes at 9:30 p.m. The earliest scheduled Leadpersons start work at 6:00 a.m.

        Definitions of other specialized terms will be presented as the terms arise in the following discussion.

The Dispute

        As a result of several conversations between the parties, the Center changed the way MAIs chose work schedules.

Scheduling Practices Before the Restructure. From the time the Center was established, work schedules for Call Agent MAIs had been posted quarterly for selection by the employees. Under the system, Center management determined the coverage needed and designed full-and part-time schedules to fulfill the perceived need. Selection was made in seniority order.

Leadperson schedules were not included in this process. They were assigned “permanent” work schedules, that is, schedules that continued without re-posting.

        Purpose of the Restructure. The restructure was implemented so that Call Agents would select “permanent” work schedules, that is, schedules that continued without re-posting.[2] 

        Development of the Restructure. A series of Union concerns led to and shaped the restructure:

·        In March 1999, the Union voiced a concern that the quarterly posting violated the collective bargaining agreement. (Stipulation of Fact #1.)

·        In April 1999, the parties agreed that “permanent” positions[3] would be posted on the next quarterly schedule change anticipated for June 1999. (Stipulation of Fact #2.)

·        The first revised posting of “permanent” positions began “on or about August 2, 1999” (Stipulation of Fact #4) and “included … coded hours, start and stop times, shift, days of work”. (Stipulation of Fact #3.) Employees were grouped by coded hours[4] and then selected positions in seniority order.

·        In response to complaints from members of the work unit, the Union requested that the process be modified so that “selection of positions would be in seniority order for all regular employees, then on-call employees.”[5] This was agreed to. (Stipulation of Fact #5.)

·        The second revised posting implemented this change and began on or about August 6, 1999. (Stipulation of Fact #6.)

·        Management had not included Leads in the process on the assumption “that because they already had ‘Permanent’ positions, they did not have to participate in the process of converting from quarterly shift selection [to] permanent.” (Er. Ex. C1.)

·        In response to complaints from members of the work unit (Stipulation of Fact #7), the Union requested that incumbent Leadpersons be included.

·        A third revision of the process started on or about August 12, 1999. This time the incumbent Leads were included in the staff position selection process. (Stipulation of Fact #8.)

        Collateral Events

·        Starting on August 18, 1999, the Employer solicited applicants for the ten lead positions. (Er. Ex. I.) [6]

·        On or about August 24, 1999, the Union asked that the process be suspended and the restructure be referred to a joint task force.[7] The Employer declined to suspend the selection of work schedules but agreed to the establishment of the task force.[8]

·        Either twenty-four (Er. Ex. K), twenty five (Er. Ex. J) or twenty-six (Un. Ex. 3) employees applied for the posted lead positions.[9]

·        The two Grievants—persons who had been Leadpersons before the restructure—were among the applicants.

·        On September 2, 1999, the Union filed a “class action” grievance alleging that the Employer had “violated the labor agreement by changing working conditions”. (Er. Ex. L).

·        On September 7, 1999, the Union filed an Unfair Labor Practice charge alleging direct bargaining with Union members. (U. Ex. 6; Er. Exs. M and N.)

·        On September 12, 1999, the Employer announced who had been selected as Leadpersons. (This is the date referred to in the “Issue” statement.)

·        The two Grievants (Grievant A and Grievant B) were not re-appointed to Leadperson positions.

·        Grievant A filed a grievance on September 15, 1999. (Un. Ex. 1.) The document alleges violation of Section 49.1 (“No employee shall be disciplined or discharged without just cause.”) and Section 51.2.[10] It charges:

Statement of Complaint: lost my position, never notified in writing[.] [H]ired as lead making 80˘ more an hour than I will now after losing my job. [N]ot one reprimand in my file. This was accomplished thru an unprecedented “restructure” “RIF” process. And a subjective interview by supervisor.

·        Grievant B filed a grievance on September 23, 1999. The document alleges violation of Article 13 (Job Bidding – Leadpersons) and Article 49 (Discipline and Discharge). It charges:

 Statement of Complaint: Taken out of lead job without cause.

The parties were unable to resolve the matters through the grievance process. The grievances were presented to me for a final and binding decision.

POSITIONS OF THE PARTIES

Position of the Union

        Aspects of the Union position were presented in the opening statement and closing argument and implied in the grievances relevant to this arbitration as well as in testimony and documents presented at the hearing.

         The Opening Statement. The Union states that while it spoke to the Employer several times about moving from quarterly selection of shifts—a practice it considered to be in violation of the Agreement—and insisted that the start times of the Leadpersons be included in the restructure, it never asked that the lead positions or lead duties become part of the revised procedure. The decision by the Employer to put all lead positions up for bid resulted in two of the incumbents losing a desirable assignment and its pay differential.

        The Grievances. The protest filed by Grievant A implies a disciplinary action, states that the employee was not notified in writing of the loss of her position (an implied violation of Section 13.2) and contends that the process of selection among the applicants for Leadpersons was marred by subjectivity.

        The protest filed by Grievant B protests an adverse personnel action taken without just cause.

        The Evidence. The Union introduced evidence in support of the following contentions:

·        During the period when the schedules were posted quarterly, management regularly adjusted starting times of Leadpersons when such action was deemed necessary.

·        At no time in the discussions with the Union did the Employer claim that a business necessity compelled its decision to open all lead positions for application.

·        The process of evaluation and selection among the applicants for lead positions was highly subjective and thus had a potential for bias.

·        Lead appointments such as those held by the Grievants were permanent and not subject to change without cause.

·        In meetings with management, the Union was very clear that the restructure concerned starting times, not jobs.

        Closing Argument. The Union interventions sought only to bring the Employer’s practice into line with the collective bargaining agreement. This required posting of all hours and shifts, including those filled by the Leads. If operational needs then required modification, Section 11.2 of the Agreement allowed the Employer to adjust the start time by as much as two hours.

        The Union contends that removal of the Grievants from their lead positions violated the Agreement, resulted in a reduction of compensation and caused them embarrassment and humiliation. It asks that the grievances be upheld. It asks that in remedy the Grievants be paid the lost lead differential from the time they were removed to the date of this decision, that they otherwise be made whole with respect to lost benefits and wages, that each receive a written apology and that all material related to their improper change in status be removed from their personnel files. The Union also asks that Grievant A be given a normal evaluation and that she be treated as a full-time employee.

        Position of the Employer.

        Ever since the Regional Call Center was opened in 1997, and until the series of Union interventions in 1999, staff MAI schedules had been posted quarterly. In contrast, Leadperson schedules were permanent. These procedures continued without Union or employee protest until August 1999 when they were changed following a series of Union statements of concern.

        In its first intervention the Union argued that quarterly postings violated the collective bargaining agreement. Management agreed to move to a process whereby once posted and selected, the schedule of an MAI would remain “permanent”. In the course of implementing this change employees were grouped by coded hours and chose from the posted schedule options by seniority applied within these groups.

        The application of seniority by coded hours was protested by the Union. The Employer agreed. The staff positions were then re-posted and selection was governed by seniority alone.

        In a third intervention, the Union stated that the Leads should not be excluded from the shift selection process. Management acquiesced and the process began anew.

        Subsequently, the Union asked that the selection process be halted, that schedules revert to those established under the old system and that a bilateral task force be created to address the matter. Management rejected the request that the process be halted. It agreed to the creation of a task force. The Employer contends that it declined this fourth request because determination of shifts had been delayed too long and resolution was essential for operational and employee needs.

        In the Employer’s view, the crux of the dispute lies with what the Union intended and communicated when it asked that all shifts be included in the posting and that Leads participate in the selection of MAI shifts. It argues that two considerations are possible. Option A is that all start times be posted and that all MAIs have the option of choosing any of the posted times. This interpretation would include the 6:00 a.m. Lead start time that began one-half hour before any non-lead MAI was needed.

        Management argues that this option was raised for the first time in the hearing when the Union representative testified that if it turned out that the slot posted for a 6:00 a.m. start time was selected by a non-lead MAI who was senior to any incumbent Lead, all management had to do was to invoke Section 11.2 of the Agreement and adjust a Lead’s schedule to a 6:00 a.m. start. The Employer notes that the process that was implemented did not comply with this option and that the Union did not protest.

        The Employer labeled as “Option B” what it contends Center management heard from the Union, repeated back to it and implemented: post all staff MAI positions and include all MAIs in the selection process; post the Leads and fill those positions; finally, post and fill the staff MAI vacancies created when successful candidates become Leads.

        The Employer argues that in compliance with its understanding of the Union’s desires, management included the incumbent Leadpersons in the selection of MA1 schedules. It then posted the lead positions for application and selection. Approximately 23 people applied, including the two Grievants. No protest was voiced at any of these steps. The selection process was completed September 12 and the decisions were announced on that date. The grievances were then filed.

         Management contends that it followed Article 13 in the posting of the lead positions and in the selection process. It draws particular attention to the last sentence of Section 13.1 and argues that clear and unambiguous language grants the Employer “sole discretion” in the selection of permanent Leadpersons. It argues that the selection process was fair and is not grievable. In stressing that Section 13.1 gives the Employer sole discretion, the Employer notes that the contract does not state that the selection process has to be fair.

        Management argues that the evidence establishes that bargaining unit leads have been removed on management’s unilateral determination without any protest. It contends that such action was not considered to be progressive discipline and did not require a showing of just cause.

DISCUSSION

        The parties have presented me with a difficult problem. Their presentations over the course of a three day hearing dealt with a wide variety of concerns coupled with a narrow statement of the Issue; namely, whether the failure, on or about September 12, 1999, to select the Grievants as Leadpersons violated Article 13 of the Agreement, “Job Bidding – Leadpersons”.

        Arbitrators generally limit their discussion to the assigned issue. A stipulated submission serves “[t]o state precisely the issue to be decided by the arbitrator, and thus to indicate the scope of the arbitrator’s jurisdiction more precisely.”[11] However, given the breadth of the matters raised and argued by both parties during the hearing, a discussion that adheres strictly to the assigned Issue will of necessity fall short of addressing matters that the parties have raised.

        I have served on the permanent panel of arbitrators selected by the parties over the course of at least three successive collective bargaining agreements and, at times, I have been called upon by each to provide educational services. As a result of this experience, and in view of the wide range of matters raised during the arbitration hearing, I am of the view that a more extended Opinion may be of service.

        I will stray beyond the boundary of the Issue in my analysis. Instead of concentrating solely on the literal scope of the Issue statement, I will divide my discussion into three parts. First, I offer a report to the parties on why I found certain of their arguments irrelevant to the Issue; next, I present the analysis that leads to my answer to the question raised in the Issue and upon which the Award is based; and, finally, I will address other points raised at hearing.

        Arguments Deemed to be Irrelevant to the Issue

        The ULP and the Group Grievance. Although both parties addressed an Unfair Labor Practice charge (Er. Exs. M and N; Un. Ex. 6) and a group grievance filed by the Union relating to the restructure (Er. Ex. L), neither party indicated how this material relates to the Issue presented to me for resolution.

        In my view, neither the ULP nor the group grievance is relevant to the Issue the parties have assigned me.

·        Both documents were filed before selection of the Leads took place, that is, before the date cited in the Issue statement.

·        The Unfair Labor Practice charge alleged that the Employer “participated in direct bargaining with union members”, but neither the document nor the record identifies what specific act or acts gave rise to this charge. In any case, a ULP charge is a matter for the National Labor Relations Board. Moreover, both parties agree that the matter was withdrawn.

·        The “class action grievance” alleges violation of at least nine articles of the collective bargaining agreement, but neither the document nor the record provides any specifics upon which the complaint is based. Moreover, the grievance seems to apply to all MAIs in the Center. The grievance identifies the group”: “Class Action MA-I’s [sic] RCC”. The Issue before me relates to two grievances filed by two individuals.

        Clearly, the ULP and the group grievance relate to what the parties have termed a “restructure”, but the Issue presented to me relates not to the restructure but to the Employer’s decision not to select the Grievants as Leadpersons.

        The parties also presented evidence and argument about whether the group grievance was withdrawn or suspended. As I noted at hearing, that matter is not relevant to the Issue before me.

        Turnover. Both parties addressed the matter of turnover among MAIs in the Center. They agreed that turnover was high, but disagreed about its cause and duration. In my view, such data and analyses have relevance at the bargaining table—when the parties address and seek solutions to workplace problems—rather than in a rights dispute. The mission of an arbitrator in a rights dispute is not to assess whether or not a decision by management is “necessary” or “wise” but to ascertain what standards the parties have established to govern the specific issue in dispute and to determine from an assessment of the evidence whether an applicable standard has been met or violated.

        The Status Quo Ante. The Employer established without contradiction that ever since the Center was established early in 1997, work schedules there were posted quarterly for selection by staff MAIs. This situation continued without complaint from the Union or any employee until the Union protest in early 1999. Arbitrators look to evidence showing longevity, repetition and acceptance when called upon to assess whether a past practice exists and is binding. In this dispute, however, the Employer did not defend the procedure by claiming that it had become an established practice. It opted to change the procedure.

        A related fact cited by the Employer does have some relevance to the Issue assigned me. The record establishes that in the status quo ante, lead positions were not included in the quarterly posting.

        Analysis Relating to the Issue

        The Issue in this dispute asks me to determine whether Management’s decision not to select as leads two individuals who had been Leadpersons prior to the restructure violated Article 13 of the collective bargaining agreement. A review of the full article indicates that Sections 13.1 and 13.2 are particularly relevant to this assignment.

        Section 13.1 of the Agreement

        Section 13.1 states:

Permanent lead positions will be posted for application by employees in the work group where the responsibilities exist. If no employee in the immediate work group qualifies for the lead position, the position will be posted so that other interested and qualified candidates may apply. Selection of permanent leadpersons and the assignment of temporary leadpersons shall be at the sole discretion of the Employer.

        Each party concentrates upon an aspect of the provision. The Union cites the phrases “permanent lead positions” and “permanent leadpersons” and argues that the Grievants were removed from their positions without just cause. The Employer cites the last sentence of the Section and argues that by contract it has sole discretion to decide who shall be leadpersons.

        The “just cause” standard appears in Section 49.1 of the Agreement: “No employee shall be disciplined or discharged without just cause.” To assess the validity of the Union contention, one must determine whether the parties intended that removal of an employee from a lead assignment would constitute an act of discipline.

        The only evidence in the record relating to how the parties have treated the matter came from the Employer. It presented uncontroverted testimony that leadpersons in Housekeeping—employees covered by the Agreement—had been removed from their lead positions at the discretion of management without progressive discipline, without application of the just cause standard, and without protest from the Union or affected employees.

        This uncontroverted evidence has additional significance. The term “permanent” that appears in Section 13.1 is ambiguous. Possible meanings range from “continuing” through “tenured” to “everlasting”. I could not find a definition of the word in the Agreement and it is not defined in the arbitration record. The sole element of relevant proof is that “permanent” lead positions were ended at management’s discretion without objection from the Union.

        I also note the following:

·        The Union presented uncontroverted testimony that in its discussions with RCC management on the dispute it consistently argued that the lead role was not a job in and of itself, but an MAI with a differential.

·        On August 12, 1999, MAIs working in the Center were sent an e-mail that stated, “We will re-post all of the Lead positions, and anyone can apply for those positions. *** Applications for the Lead positions will be processed and the Lead positions will be filled by 8/27.” (Er. Ex. E.) An Employer witness testified without contradiction that a copy was sent to the Union.

The positions were posted as of August 18, 1999. (Er. Ex. I.) It is undisputed that each Grievant filed an application for one of the posted positions and that each participated in the selection procedure. On September 12, 1999, the Grievants were notified that they were not among the successful candidates.

It may well be that a grievable event did not occur until the Grievants’ assignments as leadpersons ended. Even so, the sequence summarized in the above two paragraphs supports an inference that the Union and Center MAIs, both staff and lead, accepted that it was within management’s discretion to determine who was to become (and remain) a leadperson. No protest was voiced by employees or the Union when the opportunity to apply for the ten lead positions was announced on August 12 ( Er. Ex. C1) or when the formal postings took place (Er. Ex. I). At least two dozen MAIs—the Grievants among them—applied for the 10 opportunities.

        In consideration of the matters addressed in the above discussion and in the absence of any evidence to indicate that the parties had a contrary intention, I conclude both that management’s discretion to select a lead person includes discretion to “de-select” an incumbent and that the “just cause” provision does not apply when this takes place.

        That conclusion, however, does not support the argument voiced by the Employer during its closing statement that while Article 13 says that “selection is the sole prerogative of management, it doesn’t say that it has to be fair.” After all, in any exercise of discretion recognized in a collective bargaining agreement, management must act reasonably.[12]

        An aspect of the Union challenge to the Employer’s decision not to select the Grievants as leadpersons is that the selection process was not fair. The selection committee developed an assessment tool divided into two basic sections each accounting for one half the final score. (Er. Ex. J.) One section—the “Performance Appraisal”—considered objective and subjective data. In the second—the “Behavioral Interview”—the full score came from the interview.

        I note from a review of the tool that forty percent of the score available for the “Performance Appraisal” section comes from objective data (e.g., efficiency in handling calls, error rate, attendance) while subjective criteria (e.g., judgment, motivation, initiative, cooperation) account for sixty percent. At first glance, this is disturbing, for such weighting could allow the selection committee to “place the butcher’s thumb on the scale”. By definition, the “Behavioral Interview” was even more problematic since it had no objective portion and accounted for half of the total. There are some balancing factors. For the most part, each applicant’s “subjective” score on the Performance Appraisal half of the tool was based on evaluations in that person’s personnel file. (When a recent evaluation was not available, the selection committee constructed one.) All of the Behavioral Interviews were conducted by the same four supervisors.

        Even so, the fact is that subjective criteria accounted for eighty percent of the assessment. This, in itself, is not fatal, but it opens the selection process to question. That is part of the Union’s case. However, the fact that bias is possible does not prove that bias exists. By making the charge, the Union has assumed a burden of proof that it has failed to meet in the arbitration.

        Section 13.1 of the Agreement gives management “sole discretion” in the “selection of permanent leadpersons.” In the light of such language, management has great leeway in the selection process. Only a proven abuse of power—such as purposeful bias designed to unfairly eliminate one or more candidates—would justify an arbitrator’s intervention. The Union evidence was not sufficient to prove such abuse.

        The Union argued that the selection tool had subjective elements. It also notes that when a “substitute” evaluation was created, it offered no opportunity for worker input as did a regular evaluation. The Union established that the selection committee had created the evaluation-based scores for Grievant A although an evaluation existed in her personnel file. (Un. Ex. 11.)

        I note that Union Exhibit 11 was an annual review issued in 1988—eleven years before the application review—and that it covered work in an entirely different setting. Since the purpose of the assessment tool for lead position selection was to appraise an employee in competition with other applicants for a Center appointment, disregard of an eleven-year-old evaluation from a different site and work setting hardly seems an abuse of discretion.

        A comparison of Grievant A’s 1988 evaluation with the “in lieu” assessment created for the assessment tool shows that the two were reasonably similar. The 1988 document presents three assessment options: “Does Not Meet Standard”, “Meets Standard”, and “Exceeds Standard”. The following table shows how Grievant A was evaluated in 1988:

Does Not Meet Standard

Meets Standard

Exceeds Standard

1 checkmark

55 check marks

2 check marks

        A review of that section of the Leadperson applicant assessment tool that corresponds to the annual evaluation indicates the range of points runs from a maximum of five to a minimum of two. Grievant A received the following scores:

Personal Resources

Personal Effectiveness

Initiative

Cooperation

3

2

3

3

Her average was 2.8.

        Thus, even if the 1988 evaluation should have determined the scores given to Grievant A on the parallel portion of the assessment tool (as the Union argues), it is hard to say that the grades given to Grievant A on the tool differ in any significant way from the assessments of Grievant A found on her 1988 evaluation.[13]

        An analysis that compares the “objective” and “subjective” scores given to the ten successful candidates and to the two Grievants indicates that the “subjective” portions of the selection tool made the difference. However, when all candidates are ranked, the Grievants do not top the list of all other unsuccessful candidates. Six candidates stand between the Grievants and appointment.[14] (See Appendix A.)

        Summary: The evaluation tool was heavily weighted on the subjective side, but subjective evaluation does not necessarily mean biased evaluation. The fact that the selection committee created scores for Grievant A on a portion of the assessment tool rather than transferring them from an annual evaluation that was available in Grievant A’s personnel file did not violate the standard of fairness. The evaluation was eleven years old and reflected an assessment of service in different work and in another place. Moreover, the overall assessment shown in the 1988 evaluation was reasonably parallel to the selection tool assessment of the employee.

        For the above stated reasons, I conclude that support presented by the Union to substantiate its charge that the selection process was unfair was not sufficient to meet the Union’s burden of proof.[15]

        Section 13.2 of the Agreement

        As noted, the Union claims that the Grievants were not notified of the reasons for their non-selection as required by Section 13.2:

All qualified candidates for a permanent lead position will be interviewed and if not selected, will be informed of the reasons for non-selection.

        The only indication in the record that relates to this argument is the assertion in the grievance (Union Exhibit 1) that Grievant A was “never notified in writing.” Grievant A did not testify to this point. The Operations Manager testified that all unsuccessful candidates were informed in writing. Although the notification itself was not entered into the record, uncontroverted sworn testimony trumps a written assertion made by a person who was present at the hearing but who was not asked about the matter.

        Conclusion: In accordance with the evidence presented and the reasoning, considerations, and conclusions presented in the foregoing discussion, I find that the Employer did not violate the Current Bargaining Agreement Article 13 regarding job bidding for Leadpersons, when it did not select for Leadpersons in the Portland Area Call Center two individuals who were Leadpersons prior to a restructure on or about September 12, 1999.

        Additional Comments.

        In the following section, I address arguments made by the Union not yet covered.

        Section 11.2 of the Agreement

        The Union argues that Section 11.2 of the collective bargaining agreement provided a method by which the Employer could have maintained the incumbent Center Leadpersons in their roles.

        A Union witness testified without contradiction that before the “restructure”, management had changed start times of Leads “to cover”. However, the witness did not indicate whether the unilateral changes were temporary (to cover a short-term absence) or permanent.[16] Only a mandated permanent change in start time would lend support to this part of the Union’s Section 11.2 argument.

        The Union described a method of selecting work schedules that—in its view—could have avoided the necessity of a new selection of Leads. The Union argues that the posting should have included work schedules of both Call Agents and Leadpersons. All MAIs should have participated in the selection process according to their seniority. If this procedure resulted in a staff MAI obtaining a schedule unique to a lead position, management had authority under the Agreement to insure that incumbent Leads would be placed in the Lead schedule slots. In the Union’s reading, Section 11.2 of the Agreement allows the Employer permanently to adjust the start time of a workday up to two hours without employee agreement. By applying this right, the Employer need only adjust the seniority-determined start time of an incumbent Lead sufficient to insure the presence of a Lead in each lead schedule slot. In response to questions from the undersigned, the witness acknowledged that this might result in more than one person filling a Lead’s work schedule.

        In my view, such duplicative staffing is so extraordinary that it would require explicit enabling language in the collective bargaining agreement. Such language does not exist. Moreover, the Union suggestion is not compatible with the portion of the collective bargaining agreement that states:

The parties recognize that the Employer has the right and obligation to assign and schedule employees in a manner consistent with efficient operations. (Jt. Ex. 1, §2.6.)

        Business Necessity.

        The Union also points out that during the discussions regarding the “restructure”, the Employer never claimed that a business necessity required a new selection of Leads. However, while management might well defend an exercise of discretion as being founded on business necessity, it need not cite such a justification before it can act.


AWARD

        The Employer did not violate the Current Bargaining Agreement Article 13 regarding job bidding for Leadpersons when it did not select for Leadpersons in the Portland Area Call Center two individuals that were Leadpersons prior to a restructure on or about September 12, 1999.

        The grievances are denied.

        Respectfully submitted on this the 28th day of July, 2000, by


Burton White
Arbitrator

 

APPENDIX A

        The tables in this Appendix are taken from Employer Exhibit J.

        The following two tables presents the scores of the successful candidates and those of the Grievants on the objective portion of the assessment tool. The successful candidates:

*

1

2

3

4

5

6

7

8

9

10

A

3.8

4.8

3.7

2.9

4.5

4.6

3.6

3.5

3.8

3.9

B

2.0

3.0

4.5

4.0

4.0

4.0

5.0

4.5

4.0

4.0

C

1

2

1

1.5

2

4.5

2.5

3.5

3

2.5

D

4

4

4

4

4

4

4

4

4

4

*A=Performance Statistics, B= Quality Assurance Errors, C=Attendance, D=Training Tests (Maximum and minimum points vary by line item.)

        The Grievants:

Category:

Grievant A

Grievant B

A

2.5

4.0

B

3.5

3.5

C

3.5

2.5

D

4

4

        The following table presents the average for each candidate’s scoring in the four objective categories. The scores are arranged from highest to lowest. It shows how the Grievants stand in relation to the ten successful candidates.

7.00

 

6.83

 

6.42

 

5.42

 

5.36

 

4.75

Grievant B

3.60

 

3.48

 

3.44

 

3.40

 

3.38

Grievant A

2.95

 

        The following tables show the scores given to the same twelve candidates in the subjective categories:

 

1

2

3

4

5

6

7

8

9

10

a

3.5

4.5

3.5

3.5

3.3

4.0

3.8

3.8

3.3

3

b

4.0

4.0

4.0

3.5

3.3

4.0

3.8

4.0

4.0

4.0

*a=the “annual evaluation” type assessment , b=Behavioral Interview Rating

Category:

Grievant A

Grievant B

a

2.8

2.5

b

2.3

2.5

        The following table shows how all twelve are ranked when the Performance Appraisal and Performance Interview are combined and an average arrived at for all parts of the assessment:

4.1

 

4.0

 

3.9

 

3.8

 

3.7

 

3.7

 

3.6

 

3.4

 

3.4

 

3.3

 

2.7

Grievant B

2.6

Grievant A

         All candidates, both successful and unsuccessful:

4

Appointed

3.9

Appointed

3.8

Appointed

3.7

Appointed

3.7

Appointed

3.6

Appointed

3.4

Appointed

3.4

Appointed

3.3

Appointed

3.3

Appointed

3.3

 

3.3

 

3.2

 

3

 

2.9

 

2.7

 

2.7

Grievant B

2.6

Grievant A

2.4

 

2.1

 

2.1

 

1.6

 

 



[1] I tape recorded the hearing as a supplement to my handwritten notes.

[2] The word “permanent” was used initially to describe the new schedules, but this created a problem. In a memorandum to Center staff, the Operations Manager wrote:

I have been describing the new process in terms of changing from “Quarterly Shift Selection” to “Permanent Shift Selection.” Based on some of the feedback I have received, I think my use of the term “Permanent” was not the best way to describe our new process.

A more accurate description of what we are doing is going from quarterly to continual shift selection, ie, [sic] as jobs open up they will be posted, whoever takes the posted position will have their old position posted, and on and on.

Bottom line is that there will be continuous opportunities to improve your schedules as we experience turnover, changes in coding, etc.

The primary difference is that, for the most part, you will get to keep your schedule until YOU want to change it. (Er. Ex. C2.)

[3] The term “position” refers to one unique assignment for one employee. Each position consists of a workweek schedule with set days of work. The start time, shift duration and rest breaks are specific for each workday. (See, Er. Ex. F.)

[4] The words “coded”, “coded hours” and “upcoding” appear in a number of places within the collective bargaining agreement (e.g., § 10.14) but this reader could not locate a definition within that document. The term was not defined at hearing. Usage suggests that each regular employee is “coded” for the number of work hours for which s/he is responsible. Provisions exist for adjusting the “coding” if over a determined period of time an employee’s actual hours of work differ from that person’s coded hours.

[5] “A regular employee is one who is regularly employed to work a predetermined work schedule of twenty (20) or more hours per workweek.” (Jt. Ex. 1, 10.2; 10.4) “An on-call employee is one who works varying days and shifts on an intermittent basis. On-call employees are used primarily for replacement and temporary increases in workload.” (Jt. Ex. 10.9 B.)

[6] I noted the following discrepancies in the documentary evidence. (1) One document indicates that there were nine lead positions in the RCC (Er. Ex. K, note 1); all other evidence indicates there were ten (Er. Exs. H and I; Un. Exs. 3 and 15). The full record establishes that there were ten. (2) One document indicates the Leadperson positions were posted for bid August 16 through 22 (Er. Ex. E); another gives August 8-25 as the dates. (Er. Ex. I.) A third—obviously in error— stated that the postings were “for the weeks ending 9/18 and 9/25” (Er. Ex. K).

[7] The Agreement provided for the establishment of Worksite Committees (§s 9.7 and 9.8) to discuss issues of mutual concern (§ 9.8).

[8] The group was formed, it was entitled the Scheduling Task Force Work Group and was active at least as of October 1, 1999. (Er. Ex. N.)

[9] The variation in numbers may be explained by the fact that two candidates withdrew. (Er. Ex. J.)

[10] Article 51 bears the title “Staffing”. Section 51.2 states:

It is in the mutual interest of both parties that the delivery of health care be organized and structured in the most efficient manner possible. It is the intent of the Employer to have members of the bargaining unit continue performing those duties they have routinely done in the past; however, the Employer must retain the right to establish all work assignments affecting members of the bargaining unit. The Employer will provide the Union with schedule changes prior to implementation. The Union has the right to question the reasonableness of such assignments, and should the Union feel there is a problem with respect to work assignments, the Employer will meet with their representatives and attempt through mutual discussion to resolve the issue as expeditiously as possible.

[11] Marlin M. Volz and Edward P. Goggin, co-eds., Elkouri & Elkouri: How Arbitration Works,
5th ed., Washington, D.C., The Bureau of National Affairs, (1997), p. 319.

[12] I have found the following discussion to be a helpful statement of the principle:
We proceed now to a discussion of the most important single presumption invoked to review managerial action when either the contract is silent or its language is too general for interpretation—the presumption that managerial discretion must be exercised reasonably and with a degree of prudence befitting the circumstances. It is important to note that the arbitrator is not called upon to review the wisdom of management's action. He might say to the employer: "I think you have acted unwisely, and if I had been in your place I would have acted differently. But the fact is, I am not in your place. It is your responsibility, not mine, to manage the enterprise, and I will not substitute my judgment for your own as to the wisdom of what you did. I will, however, subject it to the test of reasonableness—review your exercise of managerial discretion to determine whether it has been arbitrary, capricious, or discriminatory."

Paul Prasow and Edward Peters, Arbitration and Collective Bargaining: Conflict Resolution in Labor Relations, New York, N. Y., McGraw-Hill Book Company, 1970, p. 198.

[13] There is no indication in the record of any irregularity in the scores given to Grievant B based on her annual evaluations.

[14] Two unsuccessful candidates received the same combined score (3.3) as two successful candidates. The record does not explain how it came to be that out of four candidates who received the same score, two were appointed but two were not.

[15] In an effort to determine whether available evidence indicated bias in selection, I submitted the scoring sheet to additional analysis. See Appendix A.

[16] The phrasing of a question put to a Company witness suggests that the changes were temporary. During cross-examination, the RCC Appointment Floor Supervisor was asked whether she was aware that start times for leads had been changed “up to two hours” on a temporary basis.

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