Unilever Best Foods
and United Food and Commercial Workers
Union, Local 1546
BEFORE THE ARBITRATOR
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.
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.
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
" . . .
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.
. . .
. . .
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.
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 . . . .
. . .
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. . . .
. . .
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. . . . .
. . . .
. . .
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.
. . .
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.
. . . "
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.
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.
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
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.
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”).
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
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.
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.
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.
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.
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.
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
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:
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
5. The Employer did not have a uniform number of supervisors
interviewing the applicants.
6. The Employer’s conclusions as to work performance and
7. The Employer’s grades for education and training were
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
9. The scoring process also demonstrates that it was
inconsistent in that Willie Bolden who had a score of 95 points is now close
10. The Employer’s comments about motivation in some individual
cases are inconsistent when viewed against the results of the practical
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:
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
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
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.
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.
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
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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
I. Statement of the Issues
Union stated the issue during the hearing as follows:
“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:
“[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;
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.
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
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.
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
II. Contract Interpretation
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.”
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
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.
These provisions yield widely differing results in this selection
process under the same set of facts.
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.
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.
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.
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.
of the main factors is the parties’ own bargaining history.
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
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.
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
training for this and other functions is unique in the Employer’s history.
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.
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 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
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
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
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.
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.
parties have also implicitly disagreed as to the standards by which the
arbitrator should review the process and decisions of the Employer when
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.
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
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.
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
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
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
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 that it was an “objective” measure of those
qualities within the meaning of Section II H.
Union has challenged the test as potentially unfair to senior employees who
might have difficulty taking tests.
Section II H requires only objectivity and a sound human relations
approach to measurement, not favoritism to senior employees.
The Union has challenged the administration of the test in three
ways. It was concerned
about language barrier issues. It
was also concerned that favored
employees might have been given longer to take the test. Finally, it was
concerned that the test was not secure because it was given on more than one occasion. However, the Employer’s actions on all of these issues were
within sound human relations practice and job related.
The training, manuals, HMI and equipment are all in English.
Employees who qualify for the job have to be able to function in
aptitude test was administered in English.
Those who needed translation into Spanish received assistance, but
did not receive additional time for the test.
The Union had advance notice of the test.
There is no evidence any other employee specifically requested
language help and had his or her request denied.
Employer’s witnesses credibly testified that it offered the test on
separate occasions for employees unable to take the test on the first
occasion. Its witnesses
further testified that they took appropriate precautions to protect the
integrity of the testing process.
The preponderance of the evidence indicates that all employees were
allowed no more than 30 minutes to take the test.
Union also alleged that the test should not be treated as credible.
The test was graded by hand. There
was at least one case in which the score was counted incorrectly or scores
transcribed incorrectly. The
errors were not intentional, and it appears the final selection process was
not affected by the errors. There
was one person who was denied the job as a result of these errors, Ms.
Walton. She was ultimately
offered one of these positions but chose to decline it.
I am satisfied that the test measured qualifications necessary for
the successful performance of these positions, was an “objective”
measure within the meaning of Section II H and was administered in a manner
consistent with sound human relations practice.
the Employer has met its burden with respect to the physical demonstration.
The test itself was related to a major component of the new jobs,
making a change over, and also related to the ability to learn and undertake
other mechanical aspects of the job. Specifically,
it would then relate to the ability to learn in the extensive training
process. It would also relate
to the ability to learn in mechanical situations such as when there are
failures on the new lines which require assessment and judgment.
The evidence establishes this was administered in accordance with
sound human relations practice.
I note that this test was a major component of success in the overall
process. An employee had
to complete the test in 25 minutes in order to obtain 20 points.
The evidence is that this requirement was applied to every employee
and there is no indication in this record that the choice for this
requirement was inconsistent with human relations practice.
The Union has not alleged that any of the named people who it claims
should have received one of these jobs was prejudiced by the twenty-five
Employer has met its burden under Section II H to demonstrate that there
were qualities which were job related but which could not be measured
objectively. They properly
include work experience, motivation and education.
The Employer sought job experience and educational experience with
respect to mechanical ability, ability to work with computers and
ability to make mechanical judgments.
These were work related. It
also sought educational information which would support the ability of the
selected employee to effectively be able to comprehend the classroom portion
of the training and comprehend manuals and printed materials.
I am satisfied that motivation was an important job-related factor in
the selection process in part because of the nature of the training process
and the inability of the Employer to replace workers who failed training or
failed to remain in these jobs. Further,
the interest and motivation of an employee in the mechanical change over and
problem analysis parts of these jobs was also likely to be a significant
predictor of success in those aspects of the job.
Employer’s witnesses credibly established that there was no way to
objectively measure these
factors without some form of subjective process.
The Employer’s process was as objective method of measuring these
concerns as was practical in human relations under the circumstances.
Employer developed an interview process which was designed to be generally
fair on its face. It gave all
employees an equal opportunity to provide information relevant to the
interview process. The
Employer took reasonable precautions against individual bias by supervisors
by planning to have three supervisors conduct the interviews and seeking
consensus among the three. Further,
on at least one occasion, a supervisor recused himself from an interview
where he felt there would be the appearance of bias.
The overall evaluation process and the interview itself had a
substantial amount of diversification.
Employer kept reasonable records of its actions and made notations which
were subject to review. The
process was not without its flaws.
Supervisors did not check the veracity of claims or statements made
by employees. Not all
supervisors were present at all interviews.
There were occasions when interviews were conducted by only two, and
on three occasions by only one supervisor.
Of the three interviewed individually, one was a senior employee who
received an outstanding rating and, as a very senior highly qualified
employee, and would have been selected anyway.
One received a rating of 30 and, based upon the objective information
stated in the interview report, would have received that rating anyway.
One received a 30 rating, but was not selected anyway.
Nonetheless, given the length of the interviewing process and the
overall effort at constructing a fair process, I conclude that the Employer
demonstrated that there were qualifications which were properly measured
subjectively, that the Employer designed its interview process in accordance
with sound human relations practice and that the interview procedure was
conducted substantially in a manner consistent with sound human relations
of the Union’s main challenges to the interview process was that it was a
subtrefuge for merely choosing employees on the basis of criteria other than
those stated, on irrelevant interpretations of the criteria or personal
preference. The existence
of the objective portions of the process and the three part structure of the
interview together with the process which the Employer mostly used to score
the interview provided such diversity in considerations that the highly
subjective supervisory judgments had a fairly minimal impact in the
selection process. I
agree with the Union that supervisors did exercise their judgment and
experience with individual employees in the process, but I am satisfied
that, except as is discussed specifically below, the process was as fair as
Union’s challenge to the Employer’s evaluation of work experience in
this process is not supported by the record.
The Employer’s analysis of work experience was on the same
standards for all employees. It
is conceivable that this process may have favored employees who had poor
quality work experience in their prior experience, but I am satisfied that
both the aptitude test, hands-on test and the averaging with two other
factors considered in the interview made any fault in this process minor.
Employer’s choice as to how to rank education follows a consistent
pattern. Education with a high
school degree or below received an “average” rating while education past
high school received an “above average” rating.
The evidence indicates that the Employer deviated once inn the
scoring process by erroneously giving Ms.Goldie Morgovic a “P” rather
than “A” rating. While it
would appear that the Employer made an error in giving Ms. Gloria Gant an
“A” rating when she should have been an “AA” rating, Employer
witnesses explained that she completed none of her college course work at
all. Both of these “errors”
were not significant because the final rating was made for both as if the
correct rating was given.
Employer’s rating of education was based upon what it considered the norm
in the plant. Mr. Blanks
testified that the average or normal education in the plant was about a
sixth grade education.
Yet, the Employer chose to treat education through a high school
degree as average. Its purpose
for doing so was to not preclude those who have been good employees but only
have less than a high school education from obtaining these jobs.
That choice, however, did eliminate any practical distinction among
those employees who did not further their formal education beyond a high
school diploma. It considered as above average certifications, advanced class
work, time in college, or course work on computers. The Employer has failed to show that it made any effort
to determine whether its distinctions actually related to the nature of the
job or the requirements for training. A
review of all of the interviews conducted shows that in the vast majority of
cases, the distinction was so large that the Employer’s judgment is
clearly sustained. In a small
number of cases, there were some inconsistencies in ratings primarily with
people who had a slight amount of training above high school.
I am satisfied that the Employer’s efforts were sincere rather than
a manipulation of the results of the interview.
In all but two cases,
the questionable ratings did not affect the person’s overall rating and,
therefore, was not significant to the result in this case. The following
were the ones with close issues:
of the Union’s strongest points was its allegation that the Employer used
the “motivation” category to arbitrarily manipulate the results of the
witnesses acknowledged that they used the motivation category to identify
employees who they believed were more motivated to be
The evidence establishes that the Employer’s evaluation concerns
were generally properly work-related, were generally conducted in accordance
with sound human relations practice, and were so balanced with other
considerations that they did not substantially affect the results of the
overall selection process. However,
I note that in some cases some considerations which were not related to
qualifications appear to have entered the process.
This affects the results of
the process with respect to one employee discussed below.
questions which the Employer asked during the interview relating to
motivation are set forth in Union exhibit 17 A 0026.
The listed questions go to disciplinary history over the last two
years, attendance over the last two years, examples of work situations in
which the employee has shown initiative, the employee’s own statement of
his or her motivation in seeking the position, and other information the
employee would like to provide. The
employee’s statement of the reasons for seeking a position is job related.
The Employer can reasonably believe that an employee who is
challenged by or interested in the enhanced duties of these positions is
more likely to be successful than one who is disinterested.
Additionally, the training for these positions is expensive, long and
not easy for the Employer to repeat.
If an employee fails to complete the training or leaves the position
shortly after he or she is selected, the Employer will have considerable
difficulty in replacing him or her. These
concerns are common to human relations practice or are otherwise related to
these specific positions.
questions include whether the employee is willing to work off shift, and
whether the employee would prefer to work alone or with others.
The willingness to work off shift does relate to qualifications.
Even though the assignment to a shift may be governed by seniority
among qualified employees, the issue also relates as to whether an employee
might leave the position in dissatisfaction after the Employer has invested
a considerable amount in training. It
is legitimate under these circumstances.
These positions require that employees work as part of a team in
operating the equipment; however, there is no showing that the employee’s
preference on working alone would necessarily impact their ability to work
on the team. I recognize the
concept of being a “team player” may be used to refer to cooperation
with supervisors and management. The
use of those concepts is questionable.
evidence did indicate that the Employer considered employee’s retirement
dates if they raised the issue. Contrary
to the position of Employer witnesses, the retirement consideration did
appear in the overall assessment of some candidates.
The above issues with the “motivation” evaluation are better
addressed with respect to individual employees. .
review of the records demonstrates that the “motivation” factor was a
determinative factor in favor of the selection of only four individuals, Ms.
Gloria Gant, exhibit 17A 0027, Ms. Goldie Mogorvic exhibit, 17A 0036, Ms.
Mary Rapp exhibit 17 A 0037, and Ms. Doris Fry exhibit 17 A 0054.
All four are senior employees and, therefore, it is incredible that
the Employer used this criterion for the purpose of excluding senior
employees. In three of the four
cases, the written reasoning of the interviewers is job related and
was the Employer’s position that it took the average of the conclusions on
each of the three components of the interview and made that the overall
witnesses acknowledged that they did not always do that, but instead may
have given heavier weight in a category based upon “supervisors’
observations” on some occasions.
The Union challenged this concept as merely subjective whim.
It points to employees Ms. Cynthia Powell, Ms. Mary Rapp, Ms.Willie
Bolden, and Ms. Goldie Mogorovic.
The overall rating received by Ms. Mogorovic was the same as if it
had been averaged in fact
because there was an uncorrected error in her rating with respect to
education. The evidence with
the other three does demonstrate that the Employer did give an overall
rating which was not an average of the three ratings.
These ratings, however, were explained in the Employer’s interview
reports and appear to be sound Employer judgments.
For example, the Employer gave Mr. Bolden a 40 rating even though he
had one Outstanding rating in work experience and above average ratings in
the other two categories. Mr.
Bolden received a 95 in the overall process and would have been selected
anyway. His score on the other
tests do corroborate the Employer’s comments that he could provide
essential skills and leadership. Ms. Powell received a rating of 20 which should have
averaged out to a 30. She
was not selected. She was a
relatively recent employee and received an overall score of 55.
Testimony indicated that she had had recent disciplinary problems,
performance problems, attendance problems and interpersonal conflict
Employer’s comments in the overall rating indicate that she is not working
up to her potential and has very low motivation.
She would not have been selected anyway. There is substantial
evidence supporting the Employer’s view that this employee should receive
an overall rating of 20. In any
event the employee’s performance in the objective portion of the process
and her low seniority do tend to corroborate the Employer’s judgment.
Ms. Rapp was given a 30 in the interview when the average would have
given her a twenty. She is a
long service employee, but she would not have been selected had the Employer
not given her the higher final rating.
The final rating shows the supervisors’ view that she
demonstrated strong analytical ability, had regularly gotten involved
when maintenance was called to the line and that management highly regards
her skill and work ethic. The
averaging of the ratings in the three categories is consistent with sound
human relations practice. The
use of a different method based upon subjective judgment does not appear to
be a consistent practice at all and, therefore, is not likely to be in
accord with sound human relations practice.
It appears on this record that the Employer’s overall conduct is
substantially in compliance with the averaging practice.
The few deviations in which an employee appears to have received less
than an average of his or her scores are entitled to more careful review.
foregoing few instances appear to be legitimate subjective judgments of
management and do not support the conclusion that the process is
“fundamentally flawed” or that management has tilted the averaging
process substantially. The
foregoing do tend to support the conclusion that some employees who have
challenged the interview process are entitled to a more substantive review
of the Employer’s analysis of the interview results in the area of
motivation and overall ratings based upon “motivation” findings where
those control their failure to be selected for a position.
Employer has explained as to how it arrived at its distribution of points on
each component of the test, although it has not fully explained the reasons
for its selection of those methods. It
has not explained how it arrived at the allocation of points between the
components. For example, why
the interview was weighted with 40 of 100 points while the other two
components received the ranking they did.
Under the facts of this case, the distribution is within the range of
sound human relations practice.
Employer has explained that it used a statistical analysis method for the
final rating points allocated on the aptitude test and for the points
allocated on the correctness (errors) on the hands-on.
The results of these ratings were to emphasize the people who were
above average from those who were in the average range on each of those
components. The overall
methods are rational, generally statistically appropriate and within the
range of sound human relations practice.
It is questionable, however, if some of the distinctions made on the
aptitude test are “significant” enough within the meaning of Article V,
Section II A to overcome the relative seniority test.
focus of the Union’s challenge was to the scoring of the interview and the
weight given the interview in the selection process.
The Union correctly points out that the interview was effectively
scored at three levels. In fact, it was effectively scored only at two levels; 20 and
30 points. Everyone
received 10 points for completing the interview..
Only five employees of the 77 employees receiving a final ranking
received outstanding ratings of 40. Four
of the five would have been selected even if they had received an interview
rating of 30. The fifth person
was not selected for any position.
Accordingly, the scoring at the 40 level did not affect the scoring
process. I agree with the Union
that since the Employer scored employees primarily 20 or 30, it effectively
preserved for itself substantial subjective control over the selection
process. The diversity of
supervisors and matters covered
in the interview, together with its three component rankings ameliorated
most of the impact.
Accordingly, I have discussed the interview’s impact on a
case-by-case basis below.
VI. Individual Cases
The following are the employees who the Union contends were “relatively equivalent:”
If any of these employees had a score of 70 they would have been selected for one of the Line Technician or Relief Person positions. Only those with a score of 75 were selected for the Key Operator positions.
Ms. Margaret Ermalowicz received an overall score of 65. The factor which essentially excluded her from selection was the fact that she received a 20 on the interview instead of 30. Her work experience was rated AA and the other two ratings were A. She graduated from high school and, therefore, her education was at the top of the A rating as the Employer made those ratings. The Employer’s comments in “motivation” and “overall” indicated the supervisors’ conclusions that she “does not demonstrate high intensity level to solve problems” and “question ability to work under pressure”and “question ability to work well with others.” This is flatly contradicted by her performance in the hands-on test in which she appears to have completed the test in twelve minutes, far faster than the twenty-five allowed. She completed this test with 3 errors, one less and she would have received 5 more points and qualified for the position anyway. While I am satisfied the point scoring on the hand-on does create a significant difference, the overall performance cannot be squared with the supervisors’ comments on all but her ability to work with others. The overall summary is unclear but appears to state that she appears capable of training. The preponderance of the evidence does not support the Employer’s assessment of her and her functioning on the hands-on strongly demonstrates she was entitled to an AA rating. Accordingly, Ms. Ermalowicz was entitled to have been selected for a position.
Linda Nicholson was rated as A on all three areas of the interview.
The evidence in the interview form supports the Employer’s
rationale for education and work experience.
Those ratings are consistent with the Employer’s overall policy in
making those ratings. The rationale stated in the motivation areas supports the
Employer’s rating of A. In
any event, even if she had been given an AA rating, the average would still
have been an A rating. Her
other scores are not in issue. The
available evidence supports the Employer’s conclusion.
Mary Strong received a rating of 65. She
had 30 on the interview, 25 on the hands-on and
10 on the written aptitude test.
She had 29 correct answers on the aptitude test, on more correct and
she would have received a 15 on the test.
The issue raised by this situation is whether or not she is still
relatively equally qualified within the meaning of Article V, Section II A.
careful analysis of the scoring of the Bennett test in the group tested
demonstrates that the difference between a score of 29 and 30 is within the
margin of error of the test. The
distribution of scores of the employees who actually took the test is
strongly bimodal with Ms. Strong’s score close to the higher group.
It is unclear whether the Employer’s statistical method could fully
account for this distribution. Even
if it might otherwise account for this distribution, Ms. Strong’s score is
slightly above the mean which is not a whole number.
With a score this close to the
margin of error, it is more likely than not that irrelevant test taking
factors could account for a random difference.
There are junior employees who were selected solely because they
received thirty correct answers on this test.
As a cross comparison, had the Employer divided the range of correct
answers equally with the 20 overall points, a difference of one correct
answer would be less than a full overall point.
Employer has not shown that there is a significant difference between the
qualifications of Ms. Strong and some of the junior employees Ms.
Gloria Tores received an overall score of 65.
The record establishes that Ms. Tores’ score on
aptitude test was well within the norm for her score.
The record is not complete with respect to her performance on the
hands-on. She did receive a score of 25 and I am satisfied that the
scoring norms of the hand-on do make significant distinctions between
employees. Ms. Tores
received a 30 on the interview. The
“motivation” score and “overall” score she received were both AA.
The available evidence supports the rating of 65.
The Union has not adduced any specific testimony to support a
conclusion that she should have received a 40 on the interview.
Few people were accorded scores of 40.
Accordingly, the evidence sustains the Employer’s view that there
is a significant difference between those employees who received a score of
70 and Ms. Tores.
Willie Suthers received an overall score of 60. She received a score of 30 on the hands-on
and only 10 on the aptitude test.
These scores are well within their norms.
Ms. Suthers received an A on each component of her interview.
The scores for education and for work experience are consistent with
the Employer’s scoring policy.
The motivation finding, even if upgraded, would not have resulted in
a changed score. The
Employer’s motivation rating is consistent with the other scores.
There is no evidence which would support why she should have received
a higher rating on the motivation or overall rating.
Accordingly, the Employer has met its burden to show that there is a
significant difference between her and those who were selected.
Rosie Bell received an overall score of 65.
She received a 20 on the interview.
Her work experience and education were properly rated as average in
accordance with the Employer’s rating standards. The Employer’s comments with respect to motivation
were that she was more interested in job security than being on the new
line. It also considered her
statement that she might retire in two years in its overall assessment. While these statements are questionable, she still would have
received an overall rating of 20 on the interview. She received a score of 25 on the practical demonstration
with 7 errors. She received 15
points on the aptitude test.
The evidence is insufficient to conclude that she should have been
Ms. Annie Newburn and Ms. Carolyn Clark both received overall scores of 60. Both received a 30 on the interview and did poorly in the other tests. They were properly not selected.
Susie Cook received an interview score of 20.
She had three ratings of A. Her
ratings of A were clearly within
the Employer’s rating policy on education and work experience.
Even if she had received an outstanding on the motivation section, she
still would have received an overall rating of A.
The motivation section comments state that she is a capable performer.
It also states that she takes projects which are given to her, but does
not actively seek opportunities for growth.
While this might be questionable in light of her good score of 30 on
the practical test, her aptitude rating was very poor, only 5.
The evidence is insufficient to provide any reason to believe she would
properly have been selected.
Union has requested a remedy that each affected employee be awarded the
opportunity to train for a Key Operator or Line Technician position.
It then requested that if the affected employee were successful in
completing that training, he or she should be awarded back pay for the
difference between what they earned and what they would have earned in the new
position, including back pay for any period of layoff.
of the two employees, Ms. Ermalowicz and Ms. Strong, would have been selected as Key Operators.
All Key Operators had scores of 75 and more seniority than either of
the two employees who were improperly denied training.
Both employees are more senior than other employees who were selected
for Line Technician. It is unclear on this record as to how the Employer
distinguished between those who ultimately became Line Technicians and those
who became Relief Operators. (Relief
Operator is distinguished from the temporary relief operator position which
was referenced during the hearing.)
The order directs that
they be assigned to a Line Technician or Relief Operator position in
accordance with the Employer’s practice for making those selections. The reservation of jurisdiction includes a reservation
of jurisdiction to determine whether the affected employees were properly
assigned to a Relief Operator or Line Technician position.
record has established that the training for the new positions is long,
complex and not likely to be repeated frequently.
The mere fact that employees were selected for training was by no means
a guarantee that they would have succeeded.
Accordingly, the requested remedy is appropriate in that it carries a
condition subsequent that the aggrieved employee successfully complete
training, except as specified below.
is not likely that the training will be repeated frequently.
This order does not require that the Employer conduct training
especially for the two affected employees.
Instead, the two are to be offered training at the next time, the
Employer would offer training for replacement workers.
The back pay order alone should be incentive to offer it to these
employees as quickly as practicable. I
also note that both employees are senior employees.
It is conceivable that either may chose to retire before training is
offered to them. I conclude that
if they chose to do so, they are entitled to all of the back pay they would
have received had they completed training.
I make this conclusion because it
is the Employer, not the employee, who wrongfully denied them training in the
first round of training following initial selection.
also note that the Union is correct in its position that if either of the
affected employees is or has been laid off for any period when they might not
have otherwise been laid off had they been selected for one of the new
positions, they are entitled to be paid for all wages and benefits she would
have had, had she been in a new position.
1. That the Employer did not violate Article V or any other
provision of the Collective Bargaining Agreement by the process it used to
select individuals for training in the new positions of Key Operator, Line
Technician or Relief Operator.
2. That the Employer violated Article V of the Collective
Bargaining Agreement by not naming Margaret Ermalowicz and by
not naming Mary Strong for training to the position of Line Technician
or Relief Operator for the new lines.
3. That the Employer shall offer both Ms. Margaret Ermalowicz
and Ms. Mary Strong an opportunity to be trained for a position of Line
Technician or Relief Operator on the new lines, at the next occasion when the
Employer offers that training.
4. The Employer shall make each of the affected employees whole
for all lost wages and benefits, including periods of layoff which would not
have otherwise occurred, which they would have earned had the Employer
properly selected them for training on October 16, 2000 to the date that the
affected employee permanently commences work in one of the new positions,
provided that the affected employee successfully completes training.
If the employee retires prior to being offered the opportunity to train
and accepting the offer to train for the new position, they shall be entitled
to the back pay ordered here without the requirement that they compete
5. I reserve jurisdiction over the determination of remedy, including but not limited to, the determination of appropriate classification and calculation of back pay and entitlement, if either party requests that I do so in writing, copy to opposing party, within sixty (60) days of the date of this award.
at Milwaukee, Wisconsin, this 24th day of December, 2002.
parties mutually agreed that I could reserve jurisdiction over the
calculation of back pay if either party requested that I do so in writing,
with a copy to opposing party, within sixty (60) days of the date of the
I p. 7.
I p. 8.
I required the Union to identify the individuals which it was asserting should have been selected. The Union complied with the direction by filing a letter dated December 18, 2001, naming the individuals it was asserting should have been selected.
V, Section II B applies when the positions are filled from employees
outside the department. It
has the same issue as discussed herein
parties assumed that the sentence is properly interpreted as requiring
minimum qualifications. No decision is expressed on that point. The sentence is referred to in this award as the “minimum
Employer objected to the consideration of past practice in determining the
meaning of these provisions citing, among other provisions, Article XIII,
Article VI, Section II G. Article XIII states for example, in relevant part: “All
rights and duties of both parties are specifically expressed in this
Agreement and such expression is all inclusive.”
These provisions prohibit arbitrators from creating rights or
obligations not expressed in the agreement or expanding upon the meaning
of provisions in the agreement. However,
they do not preclude arbitrators from using the evidence of practice to
make a choice in a specific case of which of two competing reasonable
interpretations of an existing provision should apply to the facts of that
Employer had knowledge of the nature of the changes which were going to be
made in the plant during negotiations
The Employer chose, possibly with the Union’s consent, to not
raise those matters in negotiations.
While the evidence concerning the discussion in negotiations of the
current provisions might be given less weight on that account, both
parties have acknowledged in their briefs that the interpretation
discussed is essentially mutual.
VI, pp. 195-6. Section
II B also refers to
“qualification, including skill and ability” and provide for a trial
period for “qualified” senior employees
Compare , I. B. Helburn in Union Carbide Corporation, 97 LA 771,
772-3 (1991) and D. Nolan, Super Saver IGA, 74 LA 1218, 1219-20
challenge to the way the test was scored in the overall assessment process
is discussed below.
Union’s challenge to the scoring of the number of mistakes is discussed
there is no merit in many of the Union’s contentions.
This included the contention that the interview should have been
conducted by neutral third parties.
The fact that the Employer did not check the statements on the
pre-interview questionaire is a factor which might affect the quality of
the interview; however, it affects senior and non-senior employees alike.
It is appropriate to address whether the failure to check those
claims affected the non-selection of any individual on a case by case
VI, p. 97, et seq.
 See, exhibit 17A 0058 soldering and electronics training after HS ignored, rating A. See, also exhibit 17A 0063 HS and some secretarial training ignored, rating A.
for example Tr. VI, p.64, 67 et seq.
is not to say that all of the judgments the Employer made about motivation
or overall observations are correct.
The Union pointed out at Tr,. II, p. 144 that the Employer rated
Ms. Deborah Bradley as not having the desire or demonstrated ability to
deal with mechanical. concepts.
See, 17A 0105. Yet she
completed the hands-on early with only 2 errors for a perfect score of 40.
She failed to get selected because of a poor mechanical aptitude
test and the rating of only 20 in the interview process. It appears the rating in the interview process would have
been correct even with a higher motivation finding. She is now a relief operator.
for instance Tr. VI, p. 64.
VI, p. 65
Union also complained about a number of mistakes the Employer made in
computing the scores, incorrectly calculating the number of points to
which people were actually entitled. The evidence indicated that this was the product of honest
error. Those are properly
addressed on a case-by-case basis. There
are no employees affected by those errors which the Union has named as
employees who were improperly denied selection for one of these positions.
hands-on demonstration had two components.
One component was for the prompt completion of the test.
A person who did so promptly received twenty points while a person
who did not do so received none. There
is no evidence that this affected senior or any other class of workers
differently than any other class. Further,
there is no evidence that this scoring affected any of the people who the
Union alleged were improperly denied promotion.