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Title: Sacramento Area Fire Fighters and City of Sacramento
Date: July 21, 2004
Arbitrator:  John F. Wormuth
Citation: 2005 NAC 112

In the Matter of Arbitration

between

Sacramento Area Fire Fighters
Local 522, AFL-CIO,
Jaymes Butler, Grievant

and

City of Sacramento



John F. Wormuth
Arbitrator

 

Arbitrator’s Case No. 04-A-119

CSMCS ARB-03-1894
 FD-2-03-10/3157 (CSB Testing  Procedures)
FD-2-03-11/3158 (CSB Testing Appeal Procedures)

July 21, 2004 

 

INTRODUCTION

             This arbitration arises from two grievances filed by Sacramento Area Fire Fighters Local 522, AFL-CIO, on behalf of itself and Jaymes Butler, hereinafter referred to as the Grievant, a firefighter, whose classification is covered by the terms and conditions of the Collective Bargaining Agreement (CBA), in full force and effect   between the City of Sacramento, hereinafter referred to as the City, and Sacramento Area Fire Fighters Local 522, AFL-CIO, hereinafter referred to as the Union. The subject of this arbitration is the May 30, 2003 grievances (FD-2-03-10/3157) alleging a violation of Civil Service Board Testing Procedures and  (FD-2-03-11/3158) Civil Service Board Testing Appeal Procedure. The Grievant alleges that the City improperly failed to credit his performance on the examination for Fire Captain, specifically, Emergency Problem 2 in which he received a score of “Fail”.   The Grievant contends that a score of  “Fail” has a numerical value of 60 and it should be added to his    final composite score of 69.33%.  Grievance  (FD-2-03-11/3158) asserts  that the Grievant was not able to comply with the City’s 15 day appellate requirement to appeal testing procedures inasmuch that the essence of the grievances was not apparent until on or about May 30, 2003.  
            This arbitration was heard on April 13, 2004, commencing at 9:06 a.m. at the offices of City of Sacramento, 921 10th Street, Civil Service Board Room 101, Sacramento, California 95814.    
             The Parties, from the list submitted by the California State Mediation and Conciliation Service, Case  No. ARB-03-1894, unanimously selected John F. Wormuth as the Arbitrator in this arbitration, to render a final and binding award.  The parties agreed that this arbitration was timely and properly before the Arbitrator (see footnote #1) and that all procedural requirements had been met.
             The City submitted a pre-hearing brief at hearing, and closing briefs on behalf of the City and Union were submitted and accepted. Due to a clerical oversight the City and the Union requested the Arbitrator to admit into evidence, past the deadline for submission, a Joint Exhibit to their individual respective   closing briefs.  Both the City and the Union  submitted the   Rules and Regulations of the Civil Service Board, marked as Joint Exhibit 1.  Good cause having been shown, Joint Exhibit 1 the Rules and Regulations of the Civil Service Board is found to be in order and is entered into evidence. 
              No other briefs or submissions were proffered and the Arbitrator requested none.  Prior to testifying, all witnesses were administered an oath or affirmation by the Arbitrator.   Sharon C. Holloway, RPR, and CSR No. 12227 took the transcript of the hearing which  is the official record of this Arbitration. The Arbitrator did take detailed notes and prior to the taking of evidence informed the parties that the notes of this arbitration are for the exclusive use of the Arbitrator and will not be shown to anyone. The record of this arbitration was closed on June 23, 2004, upon receipt of the closing briefs from both City and the Union.
             The parties were given full opportunity to present evidence, examine and cross-examine witnesses, produce exhibits and present argument, and availed themselves of the opportunity to do so. The City introduced  12 Exhibits, marked A thru L, and the Union introduced no exhibits. The City moved to remove Exhibit K, Assessment Center Examination, from evidence.  The City’s motion was granted without objection  and in concurrence of the Union. (TR: 104 8:13)   Exhibits, A, B, C, D, E, F, G, H, I,  J and L, having been admitted into evidence and are incorporated herein by reference.


 

. 

APPEARANCES

ON BEHALF OF SACRAMENTO AREA FIRE FIGHTERS LOCAL 522 AFL-CIO

                                                                         JAYMES BUTLER, GRIEVANT


                                                                                                   William D. McPoil
                                                                                                   ERS, Inc.
                                                                                                   Business Agent
                                                                                                   Sacramento Area Fire Fighters local 522, AFL-CIO
                                                                                                   3101 Stockton Boulevard
                                                                                                   Sacramento, California 95820-1416

                                                                         ON BEHALF OF CITY OF SACRAMENTO

                                                                                                   ANGELA M. CASAGRANDA, Esq.
                                                                                                   Deputy City Attorney, City of Sacramento.
                                                                                                   980 Ninth Street, Tenth Floor
                                                                                                   Sacramento, California 95814


ISSUE

            The parties did agree at hearing that the issue before the Arbitrator is whether or not the City is required to grant credit to the Grievant for a   score of 60 on Emergency Scenario 2 of the Captain’s Examination. There was disagreement over whether or not to credit seniority points to the Grievant’s final score of   66.33%, and when these points  should be added and credited. Underlying the issue of crediting seniority points is whether or not they are dependent on achieving a minimum final composite passing score of 70.  In the Union’s closing brief it frames the issue of awarding of seniority credits to be contingent upon a candidate’s successful passage of the examination. (Union Closing brief 7; 3; 4).
            The City in their moving papers frame the issue that there was no requirement to add 60 points to the Grievant’s final score and that the City retains the right to establish minimum passing scores both for the overall total and in the individual sections of the Captain’s   examination.  Seniority points would only be credited if a candidate achieves the minimum passing score. 
            The parties submitted no stipulation as to the question before the Arbitrator.
            The Arbitrator frames the issues to be determined thusly:
            Are these grievances arbitrable under the terms and conditions of the Collective Bargaining Agreement, Article 5 Definitions, section 5.2 (a)?  If yes, are the grievances timely?  Was the Union required to comply with Civil Service Board Rule 4.12, Discovery,  when the City made a request under its provisions?  If yes, what is the appropriate remedy?            Did The City of Sacramento violate Civil Service Board Rule 4 sections 4.9 (b), 4.10, (a), (b) and (c) when it did not give cumulative credit to the Grievant’s final composite score of 66.33% by not adding to his final score the grade of 60 points obtained in the Emergency Problem 2?  If yes, what is the appropriate   remedy?”

RELEVANT CONTRACT LANGUAGE

Article 5 Grievance Procedure
Section 5.2,  Definitions
 (a)  “A grievance is a good faith complaint of one or a group of employees, or a disagreement between the City and the Union, regarding the interpretation, application or enforcement of the express terms of this Agreement, or such provisions of the City’s ordinances, resolutions and Civil Service Rules, and such directives of the Fire Department, as fall within the scope of representation, except to the extent that the City Charter vests jurisdiction elsewhere, in which event only such Charter-provided procedure may be used; and provided that the disputes as to whether a matter is subject to this procedure shall not be determined pursuant to the provisions of this procedure “.  

RELEVANT PROVISION OF THE RULES AND REGULATIONS OF THE CIVIL 
SERVICE BOARD, CITY OF SACRAMENTO

Civil Service Rule 1 -  Authority and Purpose

1.6       COLLECTIVE BARGAINING AGREEMENTS

“Whenever any provision of these rules conflicts with the provisions of a     collective bargaining agreement,  the provisions of the agreement shall prevail”.  

 Civil Service Rule 4 – Announcements, Applications and Examinations

4.9       TEST ADMINISTRATION

(a)  Qualifying Grades and Rating Tests.

The final score of a candidate shall be based upon all tests in the examination according to the weights of each test established by the Director. The Director shall set minimum qualifying ratings for each phase of the examination and shall provide that all candidates failing to achieve such rating in any phase shall be disqualified from any further participation in the examination.  The Director shall set minimum qualifying ratings in accordance with the Director’s normal practices which shall be in compliance with state and federal law”

(b)  Seniority Credit.

 For promotional examinations, candidates shall be given credit for seniority based   upon the total time served in the classification or classifications specified in the examination announcement to be or to have been in the line of promotion on the bases of one-fourth (¼) point to be added for each year of career service in said classification(s). Seniority credit shall be computed from the final filing date for the examination as set forth in the examination announcement”.

4.10       APPEALS FROM DISQUALIFICATION

(a)  Notice of Appeal.

“A candidate may appeal disqualification in any phase of the examination or selection process.  A notice of appeal must be filed with the Director within fifteen  (15) calendar days after notice of examination results has been mailed to the candidate. The notice of examination results shall specifically state that the candidate has a right to appeal to the Board within fifteen (15) calendar days from the date of mailing of the disqualification notice. The notice of appeal shall state the grounds for appeal, remedy requested, and facts which support the appeal. The appellant shall not be prejudiced by the initial filing of the appeal.”  

(b)  Disqualification  (pertinent  part)

“Disqualification”, for purposes of this section, includes actions taken by the Director pursuant to rule 4.3, and failure to achieve the minimum qualifying score on any phase of the examination itself.”

(c)  Grounds for Appeal

“The following are the grounds for appeal of disqualifications:

(1)   Erroneous interpretation or application of the qualification standards prescribed for the classification; or

(2)   Improper procedure in the administration of the test; or

(3)   Discrimination based on race, color, religion, national origin, political beliefs, sex, physical or mental handicap, medical condition as defined by the California Department of Fair Employment and Housing, marital status, pregnancy, age, or sexual orientation.”

(d)  Remedy

“In the event that the Board grants the appeal by finding in favor of the appellant, the Board shall have the power to decree remedial relief designed to achieve a fair and equitable resolution of the appeal. The Board shall not have the power to affect, order, or rescind appointments made before, during or after the appeal process.”

4.12       DISCOVERY

(a)  Permissible discovery

 “Pursuant to the procedure set forth in subsection (b) below, any party may obtain the following information in the hands of or reasonably obtainable by the responding party or the responding party’s representative:

(7)       Penalties for failure to comply  ( pertinent  part)

“The Board may impose penalties for failure to comply with this Rule 4.”

FACTUAL BACKGROUND

            The Grievant, a nine-year employee of the Sacramento Fire Department, holding the rank of firefighter,  met the eligibility qualifications established for participation in the Captain’s promotional examination.  In October of 2002 the written portion of the examination was given, followed in November by the Assessment Center/Leadership appraisal section.  The examination consisted of two parts: The first part was  composed of 150 written questions and the second part consisted of the  “Assessment Center/Leadership Appraisal” portion. The Assessment Center/Leadership Appraisal had six individual problems:  a writing problem, Emergency Scenario 1, Emergency Scenario 2, Emergency Problem 2, Supervision Problem and Assessment Qualifications. Each aspect of the examination was assigned weight points: The Written Test 25%, Assessment Center and Leadership Appraisal: Writing Problem 5%, Emergency Scenario 1, 10%, Emergency Scenario 2, 10%, Emergency Problem 2, 20%, Supervision Problem 15% and Assessment Qualifications 15%

The Grievant scored the following weighted  average values:  as per (Ex. G,  Pg. 3).

TEST

POINTS

%

WEIGHTED %

POINTS

Written Test

(items in Test:  150)

112

74.67

25%

                     18.667

Section 2, Assessment

Center/Leadership Appraisal

Average

Score

 

 

 

Writing Problem

90

 

5%

4.500

Emergency Scenario 1

90

 

10%

9.000

Emergency Scenario 2

96.67

 

10%

9.667

Emergency Problem 2

0.00

 

20%

0.00

Supervision Problem

96.67

 

15%

14.500

Assessment Qualifications

86.67

 

15%

13.000

    Total Section 2

 

 

 

                      50.667

TOTAL SCORE

 

 

 

                      69.333

            On November 15, 2002 the City mailed to the Grievant a “Speed Memo” informing him that he was not successful in the “Fire Captain testing process”, Exam #05020-02”.    (Ex. F).  It further advised that in January of 2003, a detailed “report card” would be provided and, after review at his election, a feedback session with Chief Leo Baustain would be scheduled. Printed on  the Speed Memo is Civil Service Rule 4.10 (c) -  Grounds for appeal of disqualification, inclusive of the notice that an appeal must be filed within 15 days of the mailing date of November 15, 2002.   (See footnote #2)
            The Grievant testified that upon receipt of the notice of disqualification he attempted to obtain specific details as to why he failed. In his effort to discover the specific details the Grievant made telephone calls to Chief Baustain and Personnel Analyst  Gerriee Giffin,   both of whom  were unable to provide the information sought. 
            On or about April 23rd, 2003 the Grievant met with Chief Baustain for a feedback session.  Although the content of the discussion between Chief Baustain and the Grievant is in controversy, the fact of its occurrence is not.
            On May 30, 2003, the Grievant filed two grievances asserting that in scoring of Emergency Problem 2 the City failed to credit his score of 0% to the equivalent numerical value of 60 and add seniority points to the final score. 

POSITION OF SACRAMENTO AREA FIRE FIGHTERS LOCAL 522 AFL-CIO ON BEHALF OF ITSELF AND THE GRIEVANT

            The Union argues that the grievance is arbitrable and timely pursuant  Article 5.2 of the CBA and Civil Service Rule 1.6.   The Union interprets Rule 1.6 to be applicable to the circumstances of this grievance, since  the timelines imposed by  Rule 4  - Appeal of Disqualification - do not apply to  the essence of the grievances.  Specifically, these grievances challenge the metrology of scoring, not the substance, propriety, scope, or   fairness of the examination.  Because the examination is weighted by its component  parts, and since a candidate was not disqualified automatically by reason of an  individual component score received, the reasons for disqualification were  not known to the Grievant for a substantial period of time after his posted final score. The City did not provide candidate’s individual numerical scores for all of the component elements of the examination within the 15-day appeal mechanism provided in Civil Service Rule 4. This effectively precluded the Grievant from filing a timely appeal under the provisions of Civil Service Rule 4.  The Grievant did not become aware of the reasons for his disqualification until on or about May 30, 2003.
            The remedy requested is to  adjust the Grievant’s  cumulative score to reflect the sixty (60) points he received on Emergency Problem 2, and seniority points be added as provided in Rule 4.9 (b).  If these sixty points are awarded it is requested  that the Grievant be placed on the eligible list in accordance with his score and that such placement not affect any certification or appointments made. A prospective remedy is sought to prevent this set of events from occurring in future examinations. The Union argues that the City should be required to correct the examinations in a timely fashion so as to make possible  compliance   with Rule 4, Appeal Process..  If this remedy is found not to be meritorious  or feasible it is requested that the City change the Appeal Process to reflect the way in which the Captain’s examination was administered, by extending the  Appeal Process..

POSITION OF THE  CITY OF SACRAMENTO

 The City argues that the Grievant simply failed to pass the examination   for Captain and   has not established a violation of Civil Service Board Rule 4.  It is rule 4 that governs the Appeal Process for disqualification and the Grievant didn’t comply with its provisions.  The rule  specifies the grounds for appeal, establishing  the requirement to file an appeal within 15 days of the mailing of the test results. 
            The Grievant seeks to compel the City through arbitration to amend its testing procedures, particularly as they relate to scoring. The City, by function of its Civil Service Board, has and continues to exercise the retention and control over its testing procedures, including but not limited to the method, type, procedure, practice, administration and scoring.
            The City contends that the proper venue for these grievances is Rule 4 and it’s appeal procedure, which the Grievant failed to comply with, and so, the grievances should be denied.

DISCUSSION

            Prior to arriving at a determination of the merits of the grievances at hand, both the City and the Union granted authority to the Arbitrator to rule on their arbitrability and timeliness.
            The parties have a well-established collective bargaining relationship that spans at least the past twenty  five years. During this period, the grievance procedure has been mutually developed to effectively address work related grievances.  It is clear that it is the intent and policy of both the City and the Union to favor resolution of disputes by use of Binding Arbitration.
            The Grievant in this arbitration is seeking to have a score of 60 added to his final score of 0 that he received on Emergency Problem 2 in the Captain’s Examination. Of equal importance it is critical to note that the Grievant is not challenging any aspect of the examination, including the scores he received. This grievance is very narrow in that it alleges that the City should score a 0, not as 0, but give it a numerical  value of 60, and count  and   add 60 to the  computation of the Grievant’s final score.  
            Civil Service Board Rule 4.10 (a) provides for a very limited period of time, 15 calendar days after notice of examination results are mailed to a candidate to file an appeal under it’s criterion. Use of the 15-day calendar rule to evaluate an appeal of disqualification assumes that Rule 4.9 (a) Test Administration is utilized in its entirety. In significant part , Rule 4.9 (a) states  “The Director shall set minimum qualifying ratings for each phase of the examination and shall provide that all candidates failing to achieve such rating in any phase shall be disqualified from any further participation in the examination “ (Ex. A emphases provided).   For the current Captain’s examination, the City, with the acceptance of the Union,  changed the application of Rule 4.9 (a) to allow a candidate to participate in all phases of the test no matter what score a candidate received on a particular element. This change took into consideration  certain testing objectives that the City  determined were necessary to the validity of the examination.    However, this departure from the strictures of Rule 4(a) had the intended and practical result to permit a candidate to achieve a final   passing score in the test even if failing  an individual section.  The successful placement of a candidate who failed a portion of the examination on the eligibility list is solely dependent on the weighted value of the failed section, it’s numerical   weight   expressed as a percentage of the final score.  In order for  a candidate to overcome a failed   portion of the test, the candidate  must garner a sufficient rating in superior   points to outweigh the failed portion of the examination.  Because this was a weighted examination by design and should a candidate fail a higher weighted value element as opposed to one of lesser-weighted value, the number of points required to overcome failure of the greater weighted value will increase.   Weighing one or more sections of an examination with differing weighted values is designed to test and measure a candidate’s performance based on the complexities and difficulties of the subject matter examined in that particular section. 
            The Collective Bargaining Agreement, Article 5 Grievance Procedure, section 5.2  Definitions,    defines a grievance as a “good faith complaint“ or disagreement over matters within the terms and conditions of the contract, other rules and regulations, and Civil Service Rules subject to matters within the scope of representation. Civil Service Rule 1.6 provides that any conflicts with the rules are to be resolved in favor of binding arbitration.  The Grievant did promptly respond to   the notice of disqualification, and he did not “sit” on the grievance. The Grievant testified that he attempted to obtain a breakdown of his scores first by contacting Chief Baustain, Supervising Officer of the Fire Department’s Human Resources Division. Chief Baustain informed the Grievant that he didn’t have this information and advised the Grievant to contact the City’s Human Resources Department. Following the Chief’s recommendation the Grievant did discuss the matter with Senior Personnel Analyst Gerriee Giffin.  Ms. Giffin   was not able to answer the Grievant’s inquiry to his satisfaction. No adverse inference should be drawn that Chief Baustain or Analyst Giffin withheld the requested information, as it appears the scores were either not under their control or were otherwise unavailable.   The breakdown of the Grievant’s score was not available until the opportunity of   the  “feedback “ meeting   with Chief Baustain. It was during the course of that meeting that the Grievant discovered the full facts surrounding his disqualification.
            Both the Civil Service Rules and the Collective Bargaining Agreement must be read in conjunction with each other.  Section 5.2 (a) of the Collective Bargaining Agreement restricts the   exclusive jurisdiction of the Civil Service Rules.  Section 5.2 (a) delineating the exceptions to the jurisdiction of the Civil Service Rules is narrow.  In order to render a proper interpretation of these exceptions it is necessary to  draw from the restrictive language developed by both parties.  These grievances assert an exception to jurisdiction of Civil Service Rule 4 because the Rule is unable to address underlying pleas for remedy.  Had the City provided an appeal procedure for this examination under Rule 4  to include the substance of these grievances, it is more likely than not they would not receive favorable consideration with respect to their arbitrability.  The City changed the application of Rule 4.9 (a), when it allowed a candidate who failed to pass an individual section of the examination, to continue, rather than face automatic disqualification.   The City was unable to simultaneously notify   a candidate of the final score on the examination and provide definitive ratings on each section. The City’s   imposition and allegiance to the 15 calendar day limit to file an appeal under the provisions of Rule 4.10, created an unreasonable appellant requirement, which the Grievant could not have met.   This effectively precluded these grievances from being heard under the provisions of Civil Service Rule 4.10.  It must follow that given the limited circumstance found to be present in this examination, the 15 calendar day time limits to file an appeal is not practicable and could not be complied with by the Grievant.  Under this limited and narrow set of facts, Rule 1.6 is controlling and its provisions apply. Arrival at a different conclusion would be to affirm an inoperative appellate process to the exclusion of the rights provisions of the Collective Bargaining Agreement and the Grievant’s right to be heard.   A   contrary view would also elevate Rule 4.10 grounds of appeal to be only means of appeal notwithstanding its efficacy.  Both parties to the Collective Bargaining Agreement anticipated this type of conflict and sought to resolve it under the terms of Civil Service Rule 1.6. Civil Service Rule 1.6 favors the utilization of binding arbitration to resolve conflicts between the Civil Service Rules and the Collective Bargaining Agreement.  In view of the circumstances surrounding these grievances and the clear and compelling expression of Civil Service Rule 1.6, Section 5.2 (a) of the Collective Bargaining Agreement and parties’ policy in favor of binding arbitration, these grievances are found to be arbitrable and timely.
            The City asserted that the Union is in violation of Civil Service Board Rule 4.12 by its failure to affirmatively respond to the City’s   request for discovery. The Union argues Rule 4.12 does not require discovery because the venue of these grievances is the arbitration provisions provided for in the Collective Bargaining Agreement. The City did agree to move forward in arbitration with the proviso that if the Arbitrator rules that discovery is permitted by Rule 4.12, the evidence taken and received will be subject to a motion by the City to be stricken.   (TR: 8: 24;25 9: 1:3)
            Civil Service Rule 4.12 is the exclusive authority and domain of the Civil Service Board to compel compliance with the adjudication of matters properly before it.  Discovery violations with respect to this arbitration are properly before the arbitrator and must be vetted in the arbitral proceedings. No issues concerning discovery were presented to or argued before the Arbitrator, nor did the City   raise discovery issues in their respective moving papers. Absent any discovery violations presented, the Arbitrator rules that none have occurred.
            The essence of the grievances contend that the City is obligated to score a numerical value of 60 not as a failing score of 0, but to assign the numerical expression of 60 points as earned credit to be applied to the Grievant’s final score.  Essential to the Grievant’s argument is that the City removed the “poison pill“ from the testing process; thereby creating the presumption that all candidates would receive a passing score. In the Captain’s examination immediately preceding the current one, the City used the “poison pill” to disqualify a candidate from further participation in the test. This metrology of scoring, described in the vernacular of a “poison pill” is consistent with Civil Service Board Rule 4.9 (a). Civil Service Board Rule 4.9 (a) compels the automatic disqualification of a candidate who fails to achieve a minimum passing score on any element of a weighted examination. The Grievant argues that the City waived its right to score the examination in accordance with Civil Service Rule 4.9 (a) when it removed the “poison pill” provision as a condition of participation in the examination.  Accordingly, individual candidates failing performance   on an element may not be scored pass/fail but should be converted to a   numerical value earned and be a part of the final score.  Candidates offered concurrent testimony that in the orientation session they were advised there would be "no poison pill" and that all candidates would pass each individual part of the examination. 
            The City did change the test for Captain. However, the testing change made was related to the test’s metrology but not  the  passing score requirements. The City did agree to forego the automatic disqualification per Rule 4.9 (a). The testing protocol permitted a candidate to continue with the test notwithstanding his or her performance. This is a weighted examination and its construction made it possible to fail a specific problem and obtain an overall passing score of 70. The City demonstrated this with the introduction of (Ex. E) where four successful candidates did fail a portion of the examination. These candidates   compensated for the failing grade when they achieved   higher scores in the remaining parts of the test. 
            Persuasive   testimony was presented that the logic behind the decision not to   automatically disqualify a failing candidate based on his or her  performance on a single element, is to educate the candidates on what is required to successfully pass the test.
            The candidates were invited to participate in a feedback session. The Grievant session was scheduled with Chief Baustian. During that session, Chief Baustain advised the Grievant as to why he failed Emergency Problem 2. Chief Baustain explained to the Grievant the proctor’s comments and evaluation of his performance on Emergency Problem 2. The recommendation made to the Grievant to potentially improve his score on future examinations is to work on a truck company and gain necessary experience. The Grievant testified that the majority of his work experience has been on an engine company.
     The Grievant is not disputing the test score of 60, the test’s validity, or the testing procedure itself. Therefore it is not necessary to delve into any other potential factors that may account for the Grievant’s performance, as they are not the subject of this Arbitration.  In relevant part the feedback session establishes the purpose and reasoning as to why the City did not employ automatic disqualification; it is to educate an unsuccessful candidate on how to pass the test.
      Part of the remedy sought by the Grievant would permanently modify and undermine the testing procedure utilized. The integrity of the examination process would be undermined because there would be no objective means to measure a minimum   level of competency.  Proper testing is a reasonable measure of a candidate’s basic fitness to fulfill the minimum requirements   for a position.  Under the terms of Rule 4, and absent the City deciding otherwise, an examination-administered does, should and ought to gage a candidate’s minimum standard of competency. The pass/fail standard used in the Captain’s examination is unequivocal and is an integral part of the testing process. No compelling evidence was produced that the City either by omission or commission modified the basic competency requirements of its testing process by use of the pass/fail standard. The pass/fail standard has been in use for several years and should not have been a surprise to the candidates.   Candidates who chose to complete the entire examination process did so. Placement on the eligibility list is not dependent on successfully passing all components of the test but requires attainment of a minimum passing score of 70.   Civil Service Rules 4, 4.8, 4.9 (a) clearly and undeniably vests with the Civil Service Board the sole and exclusive authority to administer testing and to establish minimum-passing requirements, to include pass/fail.  
            No compelling evidence was produced to indicate that the City modified, waived, or substituted its authority to establish and control its examination procedures.
            The Grievant could well have passed the examination by scoring a higher value on the parts that he passed. The remedy sought by the Grievant is denied in its entirety, even though the grievances were filed in good faith.  The good faith standard of section 5.2 (a) of the Collective Bargaining Agreement cannot overcome the expressed rights contained in Civil Service Board Rules 4.  In order for these  grievances  to be successful, the City would have had to agree to waive its rights prior to the examination.
            The Union has requested the Arbitrator to amend Civil Service Board Rule 4,   Disqualification   Appeal Procedure, and  to extend the 15 calendar day time limit for filing appeals. It is noted that both the Union and the City have an ongoing and constructive relationship.  Attention to this issue is better left to the parties to address in their contract negotiations.

FINDINGS AND CONCLUSION

                              The City did not violate Civil Service Rule 4 Announcements, Applications and Examinations, Sections 4.9 Test Administration, 4.10 Appeals From Disqualification, when it declined to amend the pass/fail score of the Grievant  to a numerical value of 60 on Emergency Problem 2, of the Fire Captain’s Examination. The City properly applied the pass/ fail standard to the Grievant’s performance, and final score. 

AWARD

 

            The grievance is denied.           

            ______________________
                    John F. Wormuth                 July 21, 2004
                        Arbitrator

Footnote  #1. The City’s raises objections to the arbitrability and timeliness of these grievances.  Both the City and the Union have remanded to the Arbitrator the authority to determine the Arbitrability and timeliness of these grievances.

Footnote #2  November 15, 2002 is the only date found on EX.F.

 

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