_______________________________________________
Appearances:

Daniel R. Dosenbach, Esq.. Attorney at Law, appearing on behalf of the Union. 

Michael, Best & Friedrich, LLP, by Thomas E. Obenberger and Kerryann M Haase, appearing on behalf of the Employer. 

ARBITRATION AWARD

   Unilever Bestfoods, Inc., herein referred to as the "Employer," and United Food and Commercial Workers International Union, Local 545100A, herein referred to as the "Union," having jointly selected the Undersigned from a panel of arbitrators provided by the Federal Mediation and Conciliation Service as the impartial arbitrator to hear and decide the dispute specified below; and the Undersigned having held a hearing on November 14, November 15, February 19, March 20,  March 26,  May 15, 2002, in Chicago, Illinois: and each party having filed post-hearing briefs, the last of which was received August 19, 2002.^[1]

ISSUES

The parties were unable to agree to a statement of the issues, but agreed that I might state them.  I state them as follows:   

1.  Did the qualification process which the Employer used to name employees to the new positions of Key Operator, Line Technician or Relief Operator violate the collective bargaining agreement?

2.  Did the Employer violate the agreement by not selecting any of the identified individuals for one of the new Line Technician, Key Operators or Relief Operator positions?

3.  If the answer to number 1 or 2 is “yes,” what is the appropriate remedy?

RELEVANT AGREEMENT PROVISIONS

" . . .

ARTICLE III

MANAGEMENT RESPONSIBILITY

Section I - Except to the extent expressly abridged by a specific provision of the Agreement, the Company reserves and retains, solely and exclusively, all of its inherent rights to manage the business, as such rights existed prior to the execution of this Agreement and this Agreement constitutes the entire agreement between the parties and cancels all previous Agreements and practices, both written and oral, between the parties. 

Section II - The sole and exclusive rights of management unless abridged by specific provisions of this Agreement shall include, but are limited to, its right to establish or continue policies, practices and procedures for the conduct of the business and, from time to time, to change or abolish such policies, practices, or procedures; . . . to discontinue processes or operations in whole or in part, . . . and, from time to time, redetermine the number and types of employees required; . . . to transfer, promote, or demote employees, or to layoff, terminate, or otherwise relieve employees from duty for lack of work or other legitimate reasons; . . . and otherwise to take such measures as management may determine to be necessary for the orderly or economical operation of the Company’s business; provided however that such rights shall not be applied in any manner inconsistent with any of the other provisions of this Agreement.

. . .

ARTICLE V

SENIORITY

. . .

 Section II

A)  When vacancies occur in permanent production and maintenance classification, the job opening will be posted concurrently on the department and plant bulletin boards for three (3) working days.  To be eligible for consideration, an employee must make application by signing the bid within the three (3) day period.  Where qualifications, including skill and ability are relatively equal, department seniority will prevail in awarding the job bid.  If the most senior employee is not qualified, the next most senior employee making application from within the department will then be considered.  A qualified applicant will be given a fair trial period to qualify on the job.

B) In the event the vacancy is not filled from within the department, as outlined above, eligible plant employees making application on the aforementioned three (3) day concurrent department/plant posting will be considered for the vacancy.  Where qualifications, including skill and ability are relatively equal, plant seniority will prevail in awarding the job bid.  A qualified applicant will be given a fair trial period to qualify on the job. 

. . .

F)  Because of safety and business needs it is necessary for occupants of some classifications to possess prior experience, The Blentrol Operator (Dressings Dept.) Must have successfully qualified as a Packaging Line Operator. . . . [sic]

H) Promotion and Training - Whenever possible the company will use objective measures ( e.g. work experience, job performance, . . . ) in the assessment of skills and abilities.  Senior employees who successfully demonstrate their skills and abilities will be provided a fair trial period to qualify on the job.    

The company will attempt to provide training opportunities to those employees demonstrating both the desire and ability to advance within the department on a seniority basis.  

Section III - When it becomes necessary to reduce the number of employees working the following procedures will apply:

. . .

B) . . . First, if the job is of a complex nature the employee must first have worked the job in the past or had related plant experience . . . .

. . .

ARTICLE VI

REPRESENTATION AND GRIEVANCE PROCEDURE

. . .

Section II - Grievance Procedure and Arbitration - A grievance is defined as an alleged violation of a specific Article or Section of this Agreement. . . . 

B) . . . The “Statement of Grievance” shall name the employee involved, shall state the facts giving rise to the grievance, shall identify all of the provisions of this Agreement alleged to be violated by the appropriate reference, shall state the contention of the employee and of the Union with respect to these provisions, and shall indicate the relief requested. . . . 

. . .

ARTICLE VII

Section I - It is agreed that production and maintenance jobs throughout the plant will be established and assigned a Job Grade by the Company in proportion to such factors as skills, responsibility, effort and working conditions. 

Section II - When a new job classification is established, it will be assigned a Job Grade by the Company.  A brief description of the job will be given to the Union along with the Job Grade designation. . . . . 

. . . .

ARTICLE IX

 GENERAL CONDITIONS

. . .

Section XIII - No Discrimination Policy - The Company and the Union agree that they will not discriminate against any employee or applicant because of race, sex, color, creed, religion, national origin, age, handicap, disabled veteran, Vietnam era veterans, or because of membership or non-membership in the Union as set forth by applicable law. 

. . .

ARTICLE XIII

SEPARABILITY, WAIVER, STRIKES AND LOCKOUT

. . .

1.                  Section II - Waivers and Entire Agreement - The parties acknowledge that during the negotiations resulting in this Agreement, each had the unlimited right and opportunity to make demands and proposals with respect to any and all subjects or matters not removed by law from the area of collective bargaining and the understandings and agreements arrived at by the parties  after exercise of that right and opportunity are set forth in this Agreement.  The Company and Union each voluntarily and unqualifiedly waive the right, and each agrees the other shall not be obligated to bargain collectively with respect to any subject or matter not specifically referred to or covered in this Agreement, even though such subject or matter may not have been within the knowledge or contemplation of either or both parties at the time they negotiated or signed this Agreement.   All rights and duties of both parties are specifically expressed in this Agreement and such expression is all inclusive.  The Agreement constitutes the entire agreement between the parties and concludes collective bargaining for its term; subject only to a desire by both parties to mutually agree to in writing, amend or supplement at any time. 

. . . "

FACTS

The Employer operates a plant known as the Kilbourn Avenue plant in Chicago, Illinois.  The Union represents production and maintenance employees. The Employer primarily produces mayonnaise on productions lines at the plant.   Before the implementation of the changes leading to this grievance there were about 231 employees in the bargaining unit.  The plant runs on a three shift operation.  

Prior to the modernization of the plant and re-engineering of its process (herein referred to as the “rationalization” process), the plant’s components included an oil refinery which refined the oil used in the mayonnaise and other products and eight production lines.   Seven of the eight production lines ran the same size containers.  One line ran various sizes of containers.   The line that ran various sizes of containers required a “change over.”  A “change over” is the process by which the line was adjusted to run containers of a different size.  The plant also ran a greater variety of products.  Production of the other products and some of the mayonnaise in certain sizes required processing in batches.   The mayonnaise was essentially produced in a continuous production method.    

All of the old production lines were operated by employees in the following classifications and quantity; 1 Blendtrol Operator (pay grade 7, $17.92), 2 Line Operators (pay grade 2, $16.38) and 1 relief person who was also classified as a Line Operator.  Some lines had additional Line Operators.  The Blendtrol Operator is the person primarily responsible for production on the old lines.  The Blendtrol oversees the production line as it runs.  The Blendtrol can physically see the entire old line and can identify problems as they occur. 

The Blendtrol Operator must have an understanding of the nature of the production process.  He or she must make sure that the flow of ingredients remains within specifications.   This he or she does by monitoring the screen of the computer which controls the flow of ingredient.    They also do quality checks at various points on the production line. 

When there is a malfunction on the line, the Blendtol Operator is the person primarily responsible to  identify the problem.  He or she should be able to diagnose it sufficiently to call the correct type of maintenance person    This may be an electrician, an instrument person or mechanic.  When the line is down, all of the people ordinarily assigned to the line do other work.   They clean their work area.  In longer shutdowns, they do reprocessing in the reprocessing area.  Some  employees on the lines have volunteered to work with maintenance personnel.   Some Blendtrol Operators have developed a higher degree of skills than others at diagnosing problems and solving them themselves.   However, the higher degree of skill is not a requirement of the Blendtrol Operators position. 

All of the old lines are stopped over the weekend and cleaned by sanitation personnel.  There are other times the lines are stopped for repairs or other cleaning processes.   The Blendtrol Operator used to be  responsible to prepare a seed batch of mixed ingredients prior to restarting the line.   This has been done primarily by the sanitation people however, for many years, with the assistance of the  Blendtrol Operator (if available).   This process entails starting the flow of all of the ingredients to specifications.  Once this is done, the computer causes the machinery to automatically produce mayonnaise. 

Each of the Line Operators has a specific function during normal operations of the old lines.  One runs the packer and the other labeler.    All employees are responsible for the safety of the line.  They are trained to recognize safety situations and take appropriate actions.    

The relief person’s primary responsibility is to fill in for the Blentrol Operator and Line Operators when they take their breaks.  He or she performs all of the routine functions of those positions.  The relief person, supports others on the line, removes product incorrectly processed by the line or performs cleanup, when he or she is not filling in.  

None of these employees were required to participate in a change over of the old line which ran different sizes.  The change over of that line was performed by maintenance personnel.  A change over involved the use of tools to mechanically change and adjust the line to run a different size.   The change over of the old line took about 12 hours.  

When the employees on an existing production line discovered a malfunction, they were responsible to identify the correct category of maintenance person to call.  Some employee might voluntarily assist maintenance employees, but, for the most part, employees on the old lines either cleaned the area during an interruption in production or went to the re-work area for longer interruptions.  Each line was assigned a maintenance person who corrected problems and performed  routine maintenance.  

The fifth line required a “change over” to change from the production of one package size to another package size.   The change over was performed solely by maintenance personnel and took approximately 12 hours.  They used their tools extensively to adjust the various part of the line to handle the different size container.   

In late 1998, the Employer determined to “rationalize” the Kilbourn Avenue plant, a Canadian  plant and other facilities.   It decided to move batch production from Kilbourn to the Canadian plant  and to make Kilbourn strictly a low-cost, high volume continuous run operation devoted primarily to mayonnaise.   This process involved an investment of $24.5 million in the Kilbourn Avenue plant.  Renee Plaza has been the Operations Manager of the Kilbourn Avenue plant at all times.  She participated in that process.   Prior to April, 1999, the plan to make these changes was essentially complete. 

            The first phase of the plan relating to Kilbourn Avenue was the shut down and removal of the oil refinery.   Prior to the shutdown, the parties  met to bargain with respect to the effects of the shutdown.  The parties reached an agreement on the effects issues in March, 1999.  The oil refinery was  removed shortly thereafter.   

The second and major part of the rationalization project was the replacement of five of the existing production lines with two new high-speed production lines.   These new lines are, larger, more efficient and produce at about twice the rate of the old lines.  The new lines required employees with greater skill in operating the lines.  The Employer planned to eliminate about 50 unit jobs by  replacement of the old lines.   As a result, many less senior employees in the classifications of Blendtrol, Line Operator and Relief Operator would face the potential of layoff. The Employer ultimately did implement the first of the two new lines (herein “Line A”) and at the time of the hearing was about to commence operating  the second line (herein “Line B”).

The new lines are extensively computer controlled and have many adjustments not present on the older lines.  The computer controls are displayed through a human machine interface (herein “HMI”) which is a touch screen with extensive readouts.   This system displays a digital graphic of the entire production process and identifies the location of each problem which occurs on the line. 

Lines A and B are staffed with three shifts of four employees each; one Key Operator (pay grade 9, $19.14), two Line Technicians (pay grade 7, $17.92),  and one Relief Operator (pay grade  6, $17.59).  Line A runs various sizes which were run on lines 1 through 5.  Line B will run the same size continuously.  The Employer created a total of 24 new positions, including 6 Key Operators and 18 Line Technicians and Relief Operators.  

The Key Operator is the team leader for all production employees assigned to the new production lines.   The Key Operator must understand the operation of the new lines and must  understand the computer system and mechanics of the line to a higher degree than the Blendtrol Operator on the old lines.  The Key Operator uses the HMI to run the line efficiently and accurately.  He or she adjusts the system using the HMI to keep production at its maximum level.   Many of these adjustments did not exist on the old lines.  The Key Operator has  a higher level of responsibility to keep track of faults which occur on the line which may need attention in the future to prevent a shutdown. 

The Key Operator is responsible to identify problems on the line.  The location of the problem is ordinarily displayed on the HMI.  The Key Operator goes to the location of the problem and uses  mechanical judgment to identify and rectify the problem.  The Key Operator must be able to resolve the problem without intervention by maintenance personnel in about 70% of the cases.  If he or she cannot fix the problem, he or she calls the correct maintenance personnel.   The Key Operator has the responsibility to learn how to fix more problems from his or her experience and/or by observing the mechanics.   The Key Operator is responsible to lead other members of the operation team in assisting in the fault correction process.  

The Key Operator leads the team in making change overs on Line A.   Employees on Line B are rotated through Line A in order to maintain their change over skills.  The change over must be done within one hour.  The Key Operator completes his or her assigned change over tasks and assists other employees on the line in promptly completing theirs. 

The Key Operator prepares the seed batch at the beginning of any production run or after any shutdown.  In this regard, the Key Operator does the hookups for the seed batch and must be able to trouble shoot the blending system.   The new lines have an add back system.  The Key Operator takes ingredients and places them in the add back system to recycle them from the seed batch.  

The Line Technician on the new lines runs one of two groups of equipment.  One runs the labeler, tamper-evident bander and the coupon machine.   The other runs the tray former and shrink  tunnel.   Line Technicians must understand and work with the HMI to diagnose and correct problems with their assigned equipment and assist in troubleshooting problems on other parts of the line.   Line Technicians use the HMI to make adjustments during production of a type which did not exist on the old lines.    They are stationed at the back end of the line and, therefore,  are the sole people in visual contact with that part of the line.  They visually monitor problems at that end of the line  

Line Technicians perform change overs on their assigned equipment within one hour.   They assist in the change over of other parts of the line.  

The Relief Operator relieves the others on the line.  In that regard, the Relief Operator must understand the HMI and the production functions of each of the other positions.  The Relief Operator  performs troubleshooting functions..  The Relief Operator has assigned unique duties during change overs. 

The Employer’s chief midwest labor negotiator, Chris Herrick, was aware of the scope of the changes which were going to be made to the Kilbourn Avenue plant well before June, 1999.   In June, 1999, Mr. Herrick met with the Union’s attorney, Daniel Dosenbach, to discuss whether or not the Union would argue that the decision to add the new lines was a matter which required collective bargaining.   Mr. Herrick testified he also told Mr. Dosenbach that the new lines would result in the elimination of 50 to 75 jobs and discussed with him whether it was advisable to  discuss bargaining over the effects of the changes until after the upcoming negotiations for a successor agreement.   There is no indication in the record that Mr. Herrick ever told the Union at that time that there would be new jobs.   Mr. Herrick testified that Mr. Dosenbach agreed to postpone the effects bargaining to sometime after the renew negotiations were completed.  Mr. Dosenbach effectively denied there was any discussion concerning the effects of the new changes, that he was told about any potential layoffs or that he was told anything indicating new positions would be created.   

The parties met in negotiations for the successor collective bargaining agreement commencing September 28, 1999.  Mr. Herrick was the chief negotiator.  He was fully aware of the nature of phase II, including the fact that it would include the creation of new jobs.  The Employer made no proposal to clarify the conflict inherent in Article V, Section II A and related provisions.  The Union did make a number of proposals which were aimed at expanding the importance of seniority in promotion and other matters.  Those proposals were never adopted with the exception of the provisions which was newly created and included in the Agreement as Article V, Section II H.   The language of that provision was drafted by the Employer in response to a Union proposal.  Mr. Doesenbach testified that during these negotiations when the parties were discussing the layooff language, he asked the Employer if there were any layoffs or new positions expected.  Mr. Doesnbach then testified that the Employer falsely denied that there were any planned.^[2]  The parties did discuss the meaning of Article V, Section II A’s apparent conflict between its relatively equal and minimum qualification  language, but disagreed as to precisely what was said.  The negotiations were concluded by November, 1999.   

The parties met again to negotiate concerning the effects which the phase II modification to the production lines would have, for four sessions commencing April 19 and concluding June 14, 2000.  The  parties who were present agreed that there was a discussion as whether the employees chosen to fill the 24 new positions would be selected on a basis emphasizing seniority or emphasizing qualifications.  The Union’s witness, Mr. Dosenbach alleged the Employer agreed that they would be selected on the basis emphasizing seniority while Employer witnesses all took the contrary position that the Employer insisted it would select them on the basis emphasizing qualifications.    The parties agree that the Employer did distribute preliminary job descriptions and the Employer outlined in detail the process by which it intended to select the new employees.   The Union made a detailed response to the Employer’s proposed method of selecting employees.  It objected to the use of an interview  and, alternatively, made suggestions both to minimize its impact and suggestions as to how it could be conducted more objectively.   The Union objected to the use of the mechanical aptitude test based upon its concerns that senior employees might have more difficulty taking the test than younger employees.   Finally, it asked to be present during the hands-on demonstration and that the same be videotaped.   They also discussed the rates of pay for the new positions. 

The selection process the Employer created consisted of three parts, an interview, a written  aptitude examination and a practical demonstration.   The Employer weighted the interview as 40 points, the written aptitude examination as 20 points and the practical demonstration as 40 points.  The interview was conducted generally by three supervisors.  It assessed qualifications in three areas, education, work experience and motivation.  Employees were rated poor, average, above average or outstanding,  in each area.   The overall rating generally, but not always, was an average of all three  ratings.   Employees were then given points in increments of ten.  They received 10 points (P=poor) if they appeared at the interview at all, 20 points (A=average), 30 points (AA=above average) or 40 points (O=outstanding).   

The written examination was the Bennett Mechanical Comprehension Test.  It consisted of  68 questions.  The lowest score actually achieved was 13 correct and the highest was 46 points.  The Employer awarded 5 points for scores 17-21, 10 points for scores 22-29, 15 points for scores 30-37 and 20 points for scores 38-46.  

The Employer created a dummy production line for the practical demonstration.  It trained employees how to do a mock change over and then required that they demonstrate how to do it.  It required that employees complete it in 25 minutes.  It awarded 20 points for finishing in 25 minutes or less.  Anyone who took more than twenty-five minutes did not get any points for the time portion of the test.  The Employer awarded 0 points for 9 or more errors, 5 points for 7-8 errors, 10 points  for 5-6 errors, 15 points for 3-4 errors and 20 points for 0-2 errors.  

On June 19, 2000, the Employer posted each of the three new positions.  About 120 employees signed up for each of the new positions.   The process was completed November 7, 2000, and the Employer posted the names of the 24 employees selected.  

On November 9, the Union filed three grievances concerning the selection process.  The grievances were consolidated and properly processed to arbitration.  

The training program for each of the 24 took place over three months.  It consisted of classroom training and hands-on experience.  The training took place at the plant during four hours of each shift.   The training also included eight hours of classroom work on some Saturdays during the training period.   One of the 24 employees was unable to complete the process because she was absent.   The training costs for each individual were about $20,000.   One of the employees who was selected for training and completed training was promoted.  One employee who was selected and completed training is in substantial disciplinary trouble for insubordination.  

POSITIONS OF THE PARTIES

            The Union argues that the Employer violated Article V, Section II of the agreement which provides: 

If the most senior employee is not qualified, the next most senior employee making application from within the department will then be considered.  A qualified applicant will be given a fair trial period to qualify on the job.

            The Union argues that under this provision, the Employer must give the most senior minimally qualified individuals the opportunity to be trained for these positions.   It argues that any senior employee who received an overall rating of 50 or above should have been selected for the training process.  On this basis, it is its view that 13 senior employees should have been selected.

            The Union notes that is the Employer’s interpretation of the agreement that the following sentence in Article V, Section 2 governs the selection of employees for the disputed positions:

Where qualifications, including skill and ability are relatively equal, department seniority will prevail in awarding the job bid.

            The Union argues that this provision is not applicable to the positions in dispute.  The Employer’s representatives testified that under this language jobs have historically been awarded by seniority since it was adopted in 1972.   It relies upon analogies to the filling of other positions in the plant to demonstrate that seniority should govern.    For example, the Employer fills the Grade 7 Blendtrol operator position by seniority.   The new position of Line Technician are both grade seven positions.  The position of Relief Operator is even lower than Grade 7.  It acknowledges that for positions like maintenance positions, the Employer has used seniority only if skill and ability are relatively equal.  However, it fills other positions based upon seniority.  The position of Key Operator does not use tools as do maintenance people and, therefore, strict seniority should govern.  It argues that the position of Key Operator is similar to that of Blendtrol Operator, if not easier.  They both monitor quality control issues.  The Blendtrol operator does this visually, while the Key Operator does in an easier fashion with a computer touch screen.   The Blendtrol Operators also help in the change over while Key Operators do not.  Accordingly, the Union argues that the minimum qualification language is the provision which properly should have governed the selection of employees for the disputed positions.  

Alternatively, the Union argues that the Employer's three step process for selecting applicants violates the agreement for two reasons.  First, the selection process was fundamentally flawed and inherently unreliable thereby rending the process incapable of accurately measuring  which employees had the skill and ability to perform the job.  Second, if not the first, then the selection of certain junior employees, violated the collective bargaining agreement under either party's interpretation of the collective bargaining agreement.   

The Union argues that the selection process was fundamentally flawed and inherently unreliable resulting in a process that was incapable of accurately making meaningful distinctions between employees.   The process was an overall subjective process in violation of Article V, Section II H.  The point scale also made it impossible to have credible distinctions between employees.   While the Employer used a system which it called a 100 point process, it was, in fact, only a 10 point process.    For example, there is no difference between a score of 60 or 70, if the Employer gave 10 points during the interview based upon a “gut feeling.”   Similarly, there is little difference if the Employer gave out scoring in the written exam in blocks of five points.   Also, the point system would mean little if one part of the physical demonstration was scored in a block of 20 points and the difference was merely 30 seconds. 

Additionally, 40% of the process was devoted to a 20 minute interview.   By making this 40% of the process, it guaranteed that it would be the controlling aspect.   The Employer rated people on the basis of what they said they could do in the  interview rather than on what they demonstrated they could do by doing their daily job.   It notes that the Union has suggested that the Employer create a mock line and give the applicants the opportunity to actually demonstrate what they could do.  It argues that instead the Employer chose the interview process so that it could, in the Union’s view, manipulate the selection of people.   The scoring in the interview process was also deceitful.  The interview was ostensibly based upon three equal parts, 1. work experience including hobbies and prior employment, 2. education and training and 3 motivation.  The Union argues that the Employer administered this interview process in a subjective and inherently unreliable way.  Examples are as follows:

1.  The Employer did not allow a neutral third party to conduct and grade the interviews.  

2.  The Employer failed to verify the claims of employees which they made during the interviews.  

3.  The interview was flawed in that the Employer considered the retirement dates of the applicants and whether an applicant was willing to work off shift.  

4.  With respect to work experience, the Employer only considered whether the employee performed a task, but did not consider how well they did so.  

5.  The Employer did not have a uniform number of supervisors interviewing the applicants.  

6.  The Employer’s conclusions as to work performance and motivation.  

7.  The Employer’s grades for education and training were arbitrary.  

8.  A breakdown of overall interview grades also demonstrates the arbitrariness of the selection process.  The actual scores demonstrate that the scoring process was not consistent.  

9.  The scoring process also demonstrates that it was inconsistent in that Willie Bolden who had a score of 95 points is now close to termination.   

10.  The Employer’s comments about motivation in some individual cases are inconsistent when viewed against the results of the practical demonstration.   

The Union finds the scoring system of the 68 question multiple choice mechanical aptitude test as a main problem with that test.  Specifically, some people had only a one question  difference in the test and received five fewer points than the other person while others could have a fifteen question difference and still receive the same number of points as the other person.   In fact, a one question difference had a dramatic impact on the selection process.   These scoring difficulties affected Mary Strong, Ottie Dunning, Delois Morris, Griselda Lozan, Mary O’Neal, and Everett Woods. 

I note that the Union does not question the appropriateness of having the practical hands-on "change over" test but does question the impact of the way the test was handled, the way it was administered and the impact which it had in the selection process.

The Union concludes that if the “minimum qualifications” provision or if the selection process is found to be “fundamentally flawed,” the arbitrator should order that the 13 senior employees who had overall scores of 50 or above be awarded the Key Operator or Line Technician position.  If they successfully complete the training, it requests that they be permanently placed in the position and awarded back pay for any period of time after the initial selection in which they were laid off as well as the difference in pay between the applicable Key Operator or Line Technician Position and their current position.

The Union concludes that even under the Employer’s interpretation, a five or even fifteen point difference is still “relatively equal” within the meaning of Article V, Section II A of the agreement.   Accordingly, under this interpretation, the following should have been found qualified: 

Emalowicz
Nicholson
Strong
Torres
Suthers
Bell
Newburn
Clark
Cook

It makes the request for the same remedy with respect to these employees as it did under its interpretation of the agreement.  

The Employer takes the position that the issues in this case are limited to the three consolidated grievances.  Further, the provisions of Article VI, Section II B requires that the grievance set forth the employee involved and all of the provisions alleged to be violated.   Accordingly, the arbitrator is limited to the issues framed by the consolidated grievances and nothing else.   While the grievance did not name the specific employees involved, the Union ultimately did name them at the arbitrator’s direction.  The only agreement provisions named in the grievances were Articles V, Section II, IX, and/or XIII.    Accordingly, the Employer argues that the proper issues are:

1. Whether the failure to select the individuals named in the Union’s letter of December 18, 2001, violated Article V, IX, or XIII of the Agreement? 

2. If so, what is the appropriate remedy?

The Employer takes the position that the selection of employees to fill the new positions is governed by the “relative qualification” provision of Article V, Section II A.   The Employer disagrees with the Union’s interpretation that Article V, Section II A’s “minimum qualification” provision should be the applicable standard controlling these selections.  It argues that the Union is attempting to achieve what it could not achieve in the 1999 contract bargaining or the 2000 effects bargaining.    The Employer asserts that the grievance should be dismissed without resort to the principles of contract construction.  Even if the arbitrator should resort to contract interpretation principles, the Employer argues that those principles support its position.   Thus, it argues that the Union’s construction does not give effect to all of the provisions of Section II, A, namely, the relative ability clause, but negates it entirely.  

Similarly, the Employer asserts that the bargaining history supports its view.   It argues that Mr. Herrick is credible when he testified that he talked to Union Attorney Dosenbach prior to the 1999 negotiations, during which conversation Mr. Dosenbach agreed that bargaining over the effects could be postponed until after the new contract was negotiated.   While Mr. Doesnbach did not recall the conversation, he did write correspondence dated July 15 which confirmed that conversation.

The Union unsuccessfully sought to change the seniority provision in the subsequent negotiations for a successor agreement by proposing that the Employer recognize a past practice of awarding jobs bids solely on the basis of seniority, in the 1999 negotiations.   The Employer points to Union proposals 25 and 32  which it states had the effect of  making the selection provisions effectively strict seniority provisions.   These were all rejected by the Employer.   The history of Union proposal 15 also supports the position of the Employer.  The bargaining history shows that the Employer agreed that some entry level positions required little skill and, as a result, seniority would govern.  However, the Employer argues that it expressly reserved the right to assess qualifications.  The parties discussed the assessment process and ultimately the Employer proposed the language which was ultimately adopted in Article V, Section II H.  The Employer notes that it orally explained each sentence of the new proposal during negotiations.   The Employer stated during negotiations that the third sentence of Article V, Section II H related to overtime and fill in opportunities in higher rated jobs within a department.  By allowing senior employees to fill in temporarily on higher rated jobs, they would gain experience for future openings.  The Employer notes that its testimony is credible that on October 6, it and the Union reached an oral understanding that as jobs became more complex qualifications would be given more weight over seniority.    There was a dispute as to whether Mr. Dosenbach said ability would be the prevailing factor or merely given “greater weight.”   The Employer believes its view is supported by the evidence.     

Mr. Dosenbach testified that during the May 3, 2000, effects bargaining session, that he insisted to Employer representatives that the Employer follow the last sentence of Article V, Section II A and give minimally qualified senior employees the new positions.   The Employer argues that this testimony is incredible.  It notes that all of the Employer witnesses denied that that had occurred and the Union offered no witnesses to support Mr. Dosenbach’s testimony.  The Employer asserts that its witnesses should be given weight.    Accordingly, the Employer argues that the bargaining history supports its view. 

The Employer argues that Article III, Section I cancels all past practices.   Accordingly, it argues that the arbitrator cannot consider past practices without violating the limitations on his authority.   Alternatively, it argues that the record contains insufficient evidence of practice to demonstrate a mutual interpretation.   

It also argues that the Union’s position in this case would produce harsh and absurd results were it to be adopted by the arbitrator.  The award could lead to the replacement of the thirteen least  senior applicants by the thirteen most senior applicants.   This could result in one applicant for the Key Operator position  with a score of 50 (including a zero on the mechanical aptitude test) replacing a junior employee with an 85.   It could result in a junior line technician with a score of 85 being replaced with a senior one with a score of 60.  In its view, these types of absurd results should be avoided.   Further, the replacement of employees would require training at a cost of $20,000 per individual. 

The Employer next argues that these positions are more complex than most positions in the unit and, thus, require a higher degree of qualifications and training than those positions.  Thus, under those circumstances, the “relative qualification” language should apply.   The Employer argues that the instant positions were created as a result of the process of rationalizing the production from this plant.  It spent over two million dollars to install sophisticated new packaging lines.  Their operation require greater skills, more responsibility, increased effort and more demanding working conditions than the old production line jobs.   Consequently, the new positions were set a higher pay range than the older jobs. Key Operators lead the operation.   The ordinary duties of the Line Technician and Relief Operators vary, but they participate in all of the distinguishing functions.  The major difference between them and the Blendtrol who lead the production team on the old lines are: 

1.  Employees on the new line perform change overs in which line A is adjusted to fill different size containers.  While Line B is not changed, all employees on Line B are rotated through line A and must perform change overs proficiently   The change over on the old lines is performed by the mechanics, not the production employees.. Line Operators perform change overs of the labeler, tamper-evident bander, the coupon machine, the tray former and shrink tunnel.  The Relief Operator fills in for the others and must know their roles.  They also change over the PDC bander, change guide rails, and assist the Key Operator with the filler-caper change over.  

2.  Key Operators and other production employees have a higher degree of responsibility in adjusting the line and keeping it running.  The new lines are larger, have more adjustments and cannot be monitored visually.  Employees work with the HMI and must understand the information provided by this complex computer monitoring system.   Key Operators are responsible to make adjustments to the line.  Many of these adjustments are new to the new lines.  All employees on the new lines must have a better understanding than employees on the old lines of how the production line operates.   On the old lines, production employees monitored the line and called a mechanic if there was any problem.  Key Operators and other production employees monitor the HMI which reports the existence of malfunctions.  The production team led by the Key Operator is responsible to diagnose the problem and resolve it 70% of the time.  If they are unable to resolve it, they are responsible to identify the specific nature of the problem and call the appropriate mechanical personnel. 

3.  The training for the new positions is unprecedented.  The training is very expensive.  It takes place over three months.  It consists of three weeks of classroom work followed by on-the-job training.  The program is complex.  It is provided by outside vendors, the process integrator, company supervisors trained as experts in specific function, and others.  The training was provided for four hours per day and on some Saturdays.  The cost per person trained was approximately $20,000.  The Employer notes that it would be difficult to train replacements if employees failed or left the new jobs. 

4.  Key Operators exclusively prepare the seed batch which is prepared at the beginning of every week and every time the line is shut down.   This work on the old lines is actually performed exclusively by the sanitation people on the old lines.       

The Employer argues that Article III, Section I of the agreement reserves to it  the right to determine qualifications.   In its view, the Union has not met its burden to produce any evidence to show that the Employer acted in a bad faith or arbitrary manner.   It argues that the reasonableness and accuracy of the Employer’s assessment and selection process is demonstrated by the on-target, on-budget and on-time completion of the packaging operation changes, and successful qualification of all but one of the individuals selected.   The relative ability provision of Article V, Section II A . comes into effect only if the qualifications are relatively equal. 

The Employer contends that Article V, Section II H’s “objective standards” permits it to use subjective measure.  It notes that it even refers to qualities which might be measured subjectively.  In its view, the assessment process was thorough, fair and objective.  The Employer notes  that the people who created the structure of the selection process were experienced and knowledgeable in targeted selection.   They created an assessment process which was fair consisting of an interview, a written mechanical aptitude test and a hands-on demonstration.   It points out that the interview process gave employees advance notice of the information needed, took into account potential language problems, took into account the employees and was based upon appropriate considerations. Those considerations  included; 1. The employee’s interest in the new jobs, 2. Work experience, and 3. Education.  The interview process was conducted by three supervisors with rare exceptions when three were not available.   The motivation criteria included attendance over the past three years, willingness to take on new assignments, interest in teamwork,  and discipline received over the past eighteen months. 

The Employer argues that the interview process was as objective as practical.  Nearly all of the questions in the interview process sought objective information.   While the Union repeatedly attacked the interview process as favoritism, they produced no evidence to demonstrate that that was true.   Indeed, the one situation in which a supervisor had a disagreement with an employee, the supervisor withdrew from the interview process.   It argues that all of the Union’s challenges to the process were without merit.

The Employer also asserts that the administration and scoring of the mechanical test was appropriate.  The Union asserted during the hearing that the test was flawed because it was administered in English and because different employees had more time to take the test.  There was no evidence to support that theory.   Instead, Employer witnesses testified that the test was administered in English with those who wished to take it in Spanish and that everyone had one-half hour.   Further the Union produced no evidence that anyone who took the test had difficulty taking a standardized tests.

The Employer also argues that the scoring process for the test was appropriate.  It involved  applying a standardized bell curve.   The Union’s argument was that the scoring was unfair in that  there were potential circumstances when one person might have one more question wrong and have had a different score while others might have many questions difference without a change in score.  The Employer argues that the scoring was neutral and unbiased even if there may have been some  situations in which there was a one point difference. 

The Union also pointed to some unfortunate scoring errors.  The Employer states that the errors do not affect any of the people identified by the Union as people who should have been selected for training.   All of these potential flaws are de minimis and should be disregarded. 

The Employer also argues that the hand-on evaluation was an objective measure of skills essential to the new jobs, doing a change over of equipment.   The test required that the work be done in 25 minutes for twenty points.  If it was over 25 minutes zero points were awarded for the time portion.  The second portion involved up to 20 points for no errors.   The Employer argues that this test was totally objective

The Employer also argues that it applied the “relatively equal” language of the agreement correctly.   It concluded that 5 point differences on the rating system constituted a significant difference in qualifications within the meaning of the agreement.                         

The Employer also notes that none of the alleged aggrieved employees testified on their own behalf to any alleged violation.  While the grievances filed specifically alleged a violation of Article IX, Section XIII’s no discrimination policy, there was no testimony to support that allegation at all.  There was some testimony that some employees sought these positions because they were close to retirement and sought the positions in order to protect their jobs.   Mr. Blanks testified that he checked the seniority of these employees and none would have been laid off.   Many withdrew, but  some did not. 

Of the 13 employees the Union identified as affected, the Union produced no specific  examples of individual prejudice or error.  The Union identified 13 people affected by this grievance.   Eight appear to be included merely because they scored between 50 and 65 points.   Ms. Emalowitz appears to be named because she received 65 instead of 70 points.  The Union argued that she received only an “average” for her education when she had graduated from high school.  The Employer reiterates that its decision was based upon its experience in the plant and was not arbitrary.  The Employer also argues that there is no violation of the Agreement with respect to Ms. Strong relating to the calculation of the number of correct answers on her test or the use of the standard bell curve. The Union argued that had she answered one more question correctly on the mechanical aptitude test, she would have received an overall score of 70 rather than 65.  This would have resulted in her selection.   In its view, the Union’s argument is more directed to the standard statistical method to score this test.   There may be a few situations in which employees might have received higher or lower scores based upon a difference of one or more or less correct answers, but that does not change the fact that the Employer’s scoring of the test was totally objective and followed standard statistical practices. 

The Employer also notes that the Union used Ms. Strong as a person who may have received a higher rating in the interview process than she should have.  It pointed to her disciplinary record as an example of a person who might have been over-rated.    This was also true of Ms. Gloria Torres and Ms. Annie Newburn. 

The Union complained that Ms. Suthers and Ms. Bell received only average ratings in their interviews even though they had perfect disciplinary records.  Discipline was but one item.  Their overall ratings were consistent between all of the interviewers and there is no evidence that they were rated improperly. 

With respect to Gloria Garcia, the evidence reveals that the Employer made an error and actually gave her five points more on the mechanical aptitude test than she should have had.   She should have therefore had an overall score of 50 rather than 55.  In any event, she is clearly unqualified. 

The Employer also notes that it finds no problem in the way Ms. Sampson was scored on the hands-on assessment.  The scoring system was reasonable. 

It concludes that neither the assessment process nor the selection of the named individuals violated the collective bargaining agreement.   Accordingly, the Employer urges that the grievance filed herein be dismissed.  

DISCUSSION

I.  Statement of the Issues

The Union stated the issue during the hearing as follows:^[3] “Did the company violate the collective bargaining agreement with its selection of the attached list of employees to receive training on and subsequently be placed in the Key Operator, Line Technician and relief operator positions on the new high speed packaging lines?”    The Employer stated the issues at hearing as:^[4] “[W]hether the company has violated Article V Section II or Article IX, Section VII of the parties labor agreement as alleged in  the three grievances dated November 9, 2000, and consolidated as grievance 16-30-00?”  By brief, the Employer stated that the issue is: “Whether failure to select the individuals named in the Union’s December 18, 2001;^[5] letter violated Article V, Section II or Article IX, Section XIII of the labor agreement and, if so, what is the appropriate remedy?”  The parties agreed that I might state the issues.

Article VI defines a grievance as “. . . an alleged violation of a specific Article or Section” of the Agreement.   It requires that the grievance name the employee involved, state the facts giving rise to the grievance,  identify all of the provisions of the Agreement alleged to have been violated,  state the contention of the employee and the Union, and the relief requested.    There were three grievances filed concerning this matter and all were consolidated for hearing.    A statement of a grievance is designed to identify the full nature of the dispute and employees involved.  It should be read broadly when the statement is ambiguous.   One grievance alleges that the Employer was “. . . choosing who you want for the Jobs [sic] outside of seniority.”   Another grievance was even more broadly stated and alleged that the Employer violated Article V, Section II, and Article IX, Section XIII.  Also, fairly read, the grievances allege that the Employer violated Article V, Section 11, by not selecting the most senior employees, by not having trained them and by not offering each a trial period, before any junior employee.  Also fairly read, the grievances allege that each component of the selection process violated Article V, Section II and Article IX, Section XIII.   The specific individuals who the Union contended were affected under each of these contentions were named by the Union during the hearing.   The specific people affected by these grievances are only those named by the Union’s letter.

Both parties litigated whether the “relative qualification” language or “trial period for basically qualified” individuals of Article V, Section II applied.   They also extensively litigated whether, as the Union put it, the process was “fundamentally flawed” in violation of Article V, Section II, such that all named senior employees, or at least those scoring 60 or 65 should be selected.  Finally, the parties also litigated whether the Employer violated Article V, Section II with respect to the senior employees or those senior employees scoring 60 or 65.  Each of these was litigated with respect to the new positions of Key Operator, Line Technician and Relief Operator.   While the Union used the fact that the Employer named various people as Temporary Relief Operators, the selections themselves were not the subject of this dispute.  No decision is expressed on the subject of who should be named as Temporary Relief Operators.

II.  Contract Interpretation

The parties strongly disagree as to how the provisions of Article V, Section II A should be applied in this case.  This provision has been in the parties’ agreements in this form for many years. At the core of the dispute is the interpretation of what apparently are contradictory provisions governing the selection of employees for promotion.   The Employer relies upon the sentence reading: “Where qualifications, including skill and ability are relatively equal, department seniority will prevail in awarding the job bid.”^[6]    This is a “relative ability” provision which is of a type frequently used in labor relations.  One commonly recognized purpose of this type of provision is to permit an employer to obtain the most highly qualified people for a position.  (However, those provisions have been more narrowly construed as well.)  

The Union, on the other hand relies on the sentence which states: “If the most senior employee is not qualified, the next most senior employee making application from within the department will then be considered.”   This is a type of provision which is also commonly used in labor relations.  It is commonly recognized to emphasize the parties’ mutual interest in rewarding service to an employer with advancement to better positions as occur   Accordingly, it is frequently interpreted  to signify that if the senior employee has the minimum level of qualifications, he or she should be awarded the job.^[7]   These provisions yield widely differing results in this selection process under the same set of facts.

When the language of a collective bargaining agreement can reasonably be given two different interpretations under the same facts, it is ambiguous.  When the language of a collective bargaining agreement is ambiguous, arbitrators apply various principles long recognized in both the courts and in labor arbitration to determine what parties similarly situated would have intended by the ambiguous provision.  In making this determination, arbitrators look, among other things,  to the parties’ own practice in administering the disputed language, the bargaining history of the parties relating to the provision, the construction of the provision in the light of other provisions of the agreement, and the principles of interpretation including construing language against the party who drafted it. 

These factors demonstrate that the parties intended the “relative ability” provision to control  with respect to those rare situations in which the job or jobs are complex and require a high degree of skill.  They intended that the “minimum qualification” provision apply to most of the current jobs in the bargaining unit because they do not involve a high degree of skill. 

One of the main factors demonstrating the parties’ mutual intent is the parties’ own history  in interpreting this provisions over the years in which it has been in the parties’ collective bargaining agreements.^[8]  The parties agree that the basic concepts of Article V, Section II A have been provisions of long standing between them.  Employer witnesses acknowledged that the Employer historically selected the most senior employee for the vast majority of vacant positions because it viewed those positions as ones not requiring skill.   Article V, Section II F shows that the parties have  agreed to require employees who seek to become Blendtrol Operators to have previously qualified as a Package Line Operator.   This progression provided training in the skills necessary to become a Blendrol Operator.   For the most sophisticated positions, the mechanic positions, the parties essentially applied the “relative ability” provision and gave the Employer broad discretion in selecting mechanics.   This concept of applying the “relative ability” provision in a manner granting the Employer broader authority in complex jobs essentially underlies the reference to “complex” jobs in  the layoff provision, Article V, Section III B.

Another of the main factors is the parties’ own bargaining history.^[9]   The parties discussed  the proper application of the two disputed sentences in various negotiations.  They expressly agreed that the “minimum qualification”  provision applied to most jobs in the bargaining unit. They also agreed that as jobs progressed in  qualification requirements toward qualification requirements of the complexity of the mechanic jobs currently in the bargaining unit that the “relative ability” provision would apply.  The parties disagreed as to precisely what was said, but it is not necessary to address that issue.   Both parties’ records reflect the basic tenor of that Agreement.    Accordingly, the proper interpretation of the apparent conflict between the “relative ability” and “minimum ability” provisions is that the former alone applies to complex jobs which require a high degree of skill and/or training. 

III.  New Jobs Are Complex Jobs

The newly created jobs are “complex” jobs to which the “relative ability” provision applies.  The new jobs are unique in that they require sufficient skill to make change overs on the new complex, high speed lines.   The new position requires significantly more skill and knowledge in monitoring the  line.   Further, all employees are required to diagnose and solve mechanical and other problems which  occur during production.  The complexity, expense and difficulty of the training process requires that all employees selected for these jobs be able to successfully complete the training process, be likely to succeed on the new job and be likely to remain in those positions for a substantial amount of time.  Key Operators are responsible to prepare a seed batch on the first day of the week or when a new production run starts.

One of the key functions of the new positions is the change over process.  Line A requires a change over at least once each week.   Line B will not require a change over.   All of the employees on either line will be required to know how to do change overs and will be rotated through both lines.  The Union analogized these positions to the Blentrol Operator; however, this function is more analogous to the mechanical function.  Specifically, the new lines were made to make change overs  quicker and to eliminate the need for the use of tools.   Nonetheless, the process has much of the complexity of the change over of the old lines.  It requires identification of mechanical parts, loosening  and tightening screws, etc., adjusting rails, installing parts and other functions which  require mechanical skill, precision and judgment.  Each step of the change over is carefully documented.  The change over process is so important to the new positions that the change over process requires extensive classroom instruction and regular practice.    The training for this and other functions is unique in the Employer’s history.  

The new positions are also responsible to have a higher level of skill in the monitoring, adjusting and fault correcting processes than the Blendtrol and Line Operators on the old lines.  

            The monitoring process is not a factor which in itself distinguishes these positions from the former positions; however, in combination with the responsibility to correct faults, it is a significant contributing factor.  The new employees are all responsible to use the HMI.  The HMI is the primary information source and its operation alone requires some computer skill at the user level.   The new lines are larger and allow for many more operational adjustments than could be made to the former lines.   The Key Operator and other employees are responsible to find and correct faults.   Unlike the employees on the former lines, these employees are responsible to use the HMI or otherwise identify problems affecting the line.   The new positions are responsible to go to the problem area, diagnose the problem and fix it in 70% of the circumstances.  Mechanics do this on the old lines.  The new employees are required to use manuals to troubleshoot the new lines.  They are also responsible to learn to resolve problems on the new lines from mechanics and learn from their own past experience.  This function makes the position substantially closer to the mechanics’ than to the Blendtrol Operator.  The Line Technicians and Relief Operators also have responsibility to use the HMI to diagnose problems at their assigned equipment and also at times on the line as well.   All of the positions require skill, ability and judgment greater than that of the Blentrol Operator.  

            Key Operators are required to prepare a seed batch.  This function is slightly more complex than the current Blendtrol Operator position and would not in itself distinguish the jobs.  Nonetheless, it is more complex than the functions of the Blendtrol Operators.    Blendtrol Operators have not been primarily responsible for this function for years.  They assist the sanitation employees when the sanitation employees prepare the seed batch.   The seed batch process on the new lines involves a new process called the “add back” process.  That does require a skill not exercised by the Blendtrol Operator.  That process does appear, however, to be at approximately the Blentrol level. 

A major distinguishing factor between the new jobs and the old jobs is the unprecedented training requirement for the new jobs.   It is very difficult and expensive to replace an employee who failed to complete training, failed to succeed at the job, or left the job shortly after selection.   The training process was long and complex.  It will take some time before supervisors can learn to effectively train employees for these jobs    The Employer has never used extensive training before for any of the other  line positions.   Accordingly, it is my conclusion that all three positions are “complex” jobs requiring substantially more training, skill and ability than the former line jobs.   The “substantially equivalent” standard applies to their selection.  

IV.  Assessment Process’s Compliance with Agreement Requirements

Under Article III, Section II, management retains the right to make determinations as to an employee’s qualifications to perform a job.  Article V places limitations on that right, most specifically, Article V, Section II H states whenever possible the company will use “objective measures . . . in the assessment of skills and abilities.”  

The history of negotiations demonstrates that the Employer had extensive knowledge of the fact that there were going to be substantial changes in the plant and that there were going to be new  positions, all before negotiations leading to the current collective bargaining agreement.  It did not seek to change the agreement provisions with respect to selection of employees, although it should have recognized the ambiguity in the selection criteria in the Agreement.   Further, in negotiations leading to this agreement, the Employer drafted the  language of Article V, Section II H in response to Union concerns.   While the Employer did notify the Union prior to negotiations that it was making a major technological improvement to the plant, it is not at all clear if the Union reasonably could have understood the impact those changes would have on the language of Article V, Section II.  I am satisfied that Article V, Section II H whose ambiguities should be construed against its drafter, the Employer, with respect to the issues in this dispute.

There is some ambiguity in this provision in that it refers to the assessment of “skills and abilities” whereas Section II A refers to the assessment of “qualifications, including skills and ability.”  The next sentence provides for a trial period when employees demonstrate their “skills and abilities.”

            The better construction is that the Employer is required to use objective measures in assessing qualifications whenever possible, not merely when assessing the skills and abilities portion of qualifications.   This provision was adopted in the most recent negotiations.  Employer witnesses testified that they drafted the language of this provision and it was their intent (expressed openly in negotiations) that the provision be consistent with the provisions of  Article V, Section II A and B.^[10] 

The parties have also implicitly disagreed as to the standards by which the arbitrator should review the process and decisions of the Employer when determining “qualifications.”    Some arbitrators have addressed the issue of the burden of proof as to issues concerning the determination of qualification under “relative qualification” provisions.   Among those arbitrators who have discussed the issue, there is a disagreement as to which party has the burden to establish the appropriateness of the Employer’s process in making determinations of qualifications^[11].    I conclude that the better view of this sentence of Section II  H requires the Employer to demonstrate that any “qualification” it chooses to measure is a qualification which is necessary for the successful performance of the job in question.    The Employer would then have to show that it measured the qualification in an objective manner or that it was not possible to do so entirely with objective measures.   To the extent it uses objective measures, it must show that it selected the method and administered it in accordance with sound human relations practice.   If the Employer relied upon qualifications which were not job related and/or if it selected or administered “measures” of that qualification in an inappropriate way, the purpose of Section II H in protecting all employees, not just senior employees, from actions designed to exclude them from new jobs would be frustrated

If the Employer demonstrates that it was not possible in the sense of sound human relations practice to use only objective measures, it would have to demonstrate that any qualifications which it was not possible to measure objectively were, in fact, necessary for the successful performance of the particular job.  It would then have to show  that it used objective measures as much as is practical to measure the qualification.  Finally, it would have to show that the subjective measure was designed and administered  in a manner consistent with sound human relations practice. 

Turning to making determinations with respect to the selection of specific individual employees, Article V, Section II A and related provisions require that the Employer show that seniority is to be given preference if the qualifications are “relatively” equal.   Accordingly, as it applies to this dispute, I conclude Section II A requires that the Employer bear the burden of persuasion to demonstrate that any distinction it has made based upon qualifications is significant or substantial enough to make employees not relatively qualified.   The Union bears the burden to otherwise establish, where relevant, that there has been discrimination in violation of the Agreement, significant error, or bad faith  in any specific instance. 

V.  The Assessment process

The Employer has, for the most part, met its burden to show that the assessment process was properly designed to measure qualifications for these positions which were necessary for the successful performance of the new positions.  The assessment process sought to assess mechanical aptitude, the ability to perform change overs promptly and correctly, and the ability to successfully learn these skills in the complex training process.   It included the intellectual capacity, proclivity and motivation to identify mechanical problems alone, or in concert with others, and to resolve them promptly.   The Employer also evaluated people with experience relating to computers.  Every employee who was selected for this position was required to work with the HMI  computer readout.  The ability to understand the functioning of the HMI and work with the HMI was a job related skill and computer knowledge is useful for those tasks.    These also included the ability to take instruction in English or learn to do so, to receive instruction and translate it into correct performance and the motivation to complete the complex training process and remain in these positions for a sufficient amount of time to justify the time and expense to train the employee.  In that regard, it is also difficult for the Employer to replace employees who do not successfully complete the process.   These are legitimate qualifications for the successful training for, and performance of, these jobs.   I have discussed below the specific issues raised with respect to education and “motivation” which were raised by the Union in its argument but which are better addressed with respect to the situations of specific individuals.  

The Employer met its burden to show that it measured the necessary qualifications in as objective a manner as was practical in human relations.   The use of the Bennett aptitude test was objective, established in the field, and job related.  The new job requires that employees perform a change over.   While the new equipment no longer requires tools to make the change over, the evidence indicates that the process is essentially as complex as the process formerly performed by mechanics and requires mechanical judgment.   Similarly, employees are required to assess and correct mechanical  problems which occur on the line using the HMI screen and mechanical judgment.  The test measured the aptitude to perform those functions.   I am satisfied