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Title: Employer and Union
Date: March 24, 2001
Arbitrator: Philip Kienast
Citation: 2001 NAC 139

 
In the Matter of Arbitration

          between

Employer

          and 

Union

 

OPINION
AND
AWARD

 

                                                                                            

OPINION

            This proceeding is in accordance with the parties’ Agreement.  A hearing in this matter was held on February 7, 2001 and the record closed upon receipt by the Arbitrator of post hearing briefs on March 5, 2001.  The parties stipulated the issue for decision as:

            Did the Employer violate the Agreement when it failed to fill the vacant

            public works foreman position with Pete Barstad?

            If so, what is the appropriate remedy?

Applicable Agreement Provisions

ARTICLE 15 – SENIORITY

15.01  Length of service shall govern in layoff and recalling employees.  Layoff shall be with the most junior employee laid off first and recalled last; provided, however, ability to perform the available work shall be required.  Employees hired as trainees on State or Federal funded programs will not accrue seniority until such time as they are assigned as regular employees.

15.02  Job openings shall be offered to qualified applicants in seniority order.  A reasonable probation period of up to ninety (90) days shall be in effect for the City or the employee to determine the employee return to their original position.

          ARTICLE 21 – GRIEVANCE PROCEDURE AND ARBITRATION

            . . . .

The arbitrator shall have no authority to add to, subtract from or modify any provisions of this Agreement, his authority being limited to the question submitted.  Each party shall bear the cost of preparing and presenting their case, and 50% of the arbitration fees and all other costs.  The decision of the arbitrator shall be final and binding on the parties.

ARTICLE 22 – MANAGEMENT RIGHTS

22.01  It is understood and agreed that the City possesses the sole right and authority to operate and direct the employees of the City and its various departments in all aspects, including but not limited to, all rights and authority exercised by the City prior to the execution of this Agreement, except as modified in this Agreement.

            These rights include but are not limited to:

            . . . .

            (e)            To hire and assign or to transfer employees within the City;

            (f)            To promote, suspend, discipline or discharge for just cause.

Background

            On April 27, 2000 the Employer posted a notice that members of the public works crew interested in an open foreman position should file an application, resume and letter of interest.  It noted the applicants would be interviewed by an independent panel which would make recommendations to Loren Sperry, the Director of Public Works.

            The interview panel was composed of three persons:  Darrell Cline, Assistant Superintendent of the Watcom County Public Works; Gary Almy, Superintendent of the Public Works Department, City of Bellingham; and Richard Adams, Supervisor of Streets, City of Bellingham.  All three testified at the hearing that they were told to rank the three applicants from most to least qualified.

            Pete Barstad, the grievant, was the most senior of the three applicants.  After reviewing his qualifications and interview responses, the independent panel ranked Mr. Barstad second behind Chad Pepperworth, the person finally selected to fill the vacant position.  The committee also determined the third applicant was not qualified for the position.

            The Union contends the record discloses the grievant was the most senior qualified applicant and therefore should have gotten the position based on the explicit language of Section 15.02 of the Agreement.  It argues the only way the Employer could bypass the grievant was if the independent panel had found him unqualified, as they did one of the applicants.  It maintains it matters nothing that he was not the best or most qualified candidate.

            The Employer contends that Section 15.02 is a “relative ability” clause that makes seniority a tie breaker between equally qualified candidates.  It argues the grievant was not equally qualified and hence his seniority did not entitle him to the position.  It notes there is no credible evidence that the grievant was equal in qualifications to Mr. Pepperworth.

Analysis and Conclusions

            Collective bargaining agreements contain a wide variety of seniority provisions regarding the role seniority plays in filling vacancies in the bargaining unit.  One kind of seniority provision requires the most senior person bidding on the job to be given the position without any consideration of ability.  Another requires the job be given to the most senior of two or more equally qualified bidders.  A third kind of seniority provision holds that among one or more qualified applicants—that is, applicants who meet the basic qualification requirements—seniority becomes the deciding factor in which applicant fills the position.

            The Arbitrator concludes the provision in dispute, Section 15.02, is of the last type.  It states specifically that job openings will be offered to “qualified candidates in seniority order.”  There is absolutely no mention of best qualified or most qualified in Section 15.02.  The provision is clear and unequivocal in requiring the job be awarded to the most senior of the qualified candidates.

            The record clearly discloses the grievant was the most senior qualified candidate.  The independent selection committee members all testified that two of three applicants were qualified for the position even though they also found that Mr. Pepperworth was more qualified because of his training and education.  However, such a finding is irrelevant given the precise and clear language of Section 15.02.

            The Employer is correct in its assertion the Agreement must be read as a whole.  Article 21 is clear wherein it states:  “The Arbitrator shall have no authority to add to, subtract or modify any provisions of this Agreement. . .”  Yet, the Employer argues Section 15.02 should be read differently from what is stated unequivocally:  namely, the senior employee gets the position if and only if he or she is the best qualified applicant.  If this Arbitrator were to adopt the Employer'’ reading, he would be adding to and modifying a provision of the Agreement contrary to the express language of Article 21.

            Moreover, Article 22, the management rights provision of the Agreement, retains all rights the Employer had prior to the execution of the Agreement “except as modified by the Agreement.”  Section 15.02 is clear and specific in limiting management’s right to pick among qualified candidates to fill a vacancy.  It states explicitly that the Employer must fill the vacancy with the most senior “qualified” candidate.  The rights retained by management in Section 22 do not include the right to replace the term “qualified” with the term “best qualified.”  In the final analysis, the Employer agreed to the language in Section 15.02.  It cannot be modified without the mutual agreement of the parties.

            In light of the foregoing, the Arbitrator concludes the Employer did violate the Agreement when it failed to award the foreman position to the grievant.  As to remedy, the Arbitrator permitted the Employer to present evidence regarding the grievant’s current ability to fill the position given his behavior since the position was filled.  The Employer called only one witness to provide evidence in this regard.  He testified the grievant had told him after June 1, 2000 that if he was successful in his grievance one crew member would “be gone” and another be assigned to “a sewer truck” indefinitely.  Also, he testified he saw the grievant get angry once and throw a weed sprayer.

            This evidence is insufficient to deny the grievant the customary make whole remedy.  First, what people say they will do and what they in fact do are entirely different things.  Moreover, if the grievant did the kind of things he said he would do or his anger made him ineffective, then the Employer could demote him back to the crew either during or after his probationary period.  By agreeing to promote the senior qualified person, the Employer did not abdicate its right to set reasonable job expectations and to discipline employees who fail to meet these expectations.

            Accordingly, the Employer will be ordered to appoint the grievant to the foreman position in question and to make him whole for the difference in wages between his crew job and the foreman’s job.

AWARD

1.       The Employer did violate the Agreement when it failed to fill the vacant public works foreman position with Pete Barstad.

2.       The Employer shall appoint Pete Barstad to the foreman position within 30 days of the receipt of this award.

3.       The Employer shall pay the grievant a sum of money equal to the difference between his wages as a crew member and the wages of a foreman from June 1, 2000 through the date of promotion to the foreman position.

 

 

_______________________________
Philip Kienast
March 24, 2001
Bothell, Washington

 

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