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Title: Klamath County and Federation of Oregon Parole and Probation Officers
Date: October 30, 2006
Arbitrator: David Gaba
Citation: 2006 NAC 115

Federal Mediation & Conciliation Service

 
In the Matter of an Arbitration

            Between

FEDERATION OF OREGON PAROLE AND 
PROBATION OFFICERS

            And

KLAMATH COUNTY

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ARBITRATOR’S

OPINION AND AWARD

 

INTRODUCTION

            This arbitration arises pursuant to a collective bargaining agreement (hereinafter the Agreement) between the Federation of Oregon Parole and Probation Officers (hereinafter the Union or Federation), and Klamath County (hereinafter the County), under which DAVID GABA was selected to serve as Arbitrator and under which his Award shall be final and binding among parties.

            A hearing was held before Arbitrator Gaba on September 6, 2006 at Klamath Falls, Oregon.  The parties had the opportunity to examine and cross-examine witnesses, introduce exhibits, and fully argue all of the issues in dispute.  A transcript of the proceedings was provided.  Both parties filed post-hearing briefs on October 9, 2006.             

APPEARANCES:

On behalf of the Union:

Rhonda Fenrich
Garrettson, Goldberg, Fenrich & Makler, P.C.
423 Lincoln Street
Eugene, OR 97401-2516

On behalf of the Employer:

C. Akin Blitz
Bullard Smith Jernstedt Wilson
1000 SW Broadway, Suite 1900
Portland, OR  97205

ISSUE

The parties stipulated to the following issue:  Whether the County violated Article 15 of the parties’ Collective Bargaining Agreement by failing to promote Officer Lynette Hammond to Parole Officer III.  If so, what is the appropriate remedy?

RELEVANT CONTRACT PROVISIONS

The Collective Bargaining Agreement contains the following sections that are relevant to this arbitration proceeding:

A.        Article 4: Management Rights.

The County retains all the customary, usual, and exclusive rights decisions making, prerogatives, functions, and authority connected with or in any way incident to its responsibility to manage the affairs of the County or any department or function thereof.  The rights or employees in the bargaining unit and the Federation are limited to those specifically set forth in this Agreement, and the County retains all prerogatives, functions, and rights not specifically limited by the terms of this Agreement.  The County shall have no obligation to bargain with the Federation with respect to any such subjects of the exercise of its discretion and decision making with regard thereto, any subjects covered by the terms of this Agreement and closed to further bargaining for the term hereof, and any subject which was or might have been raised in the course of collective bargaining.  Without limitations, but by way of illustration, the exclusive prerogatives, functions and rights of the County shall include the following:

1.          To direct and supervise all operations, functions and policies of the departments in which the employees in the bargaining unit are employed, and operations, functions, and policies in the remainder of the County as they may affect employees in the bargaining unit.

 

2.          To close, liquidate or combine any department, office, branch, operation of facility, service, or combination thereof, or to relocate, reorganize or combine the work of departments, divisions, offices, branches, operations or facilities for budgetary or any other pertinent reason.

 

3.          To determine the need for a reduction or an increase in the work force and the implementation of any decision with regard thereto.

 

4.          To establish, revise and implement standards for hiring, classification, promotion, quality of work, safety, materials, equipment, attire, appearance, methods, and procedures.

 

5.          To implement new, and to revise or discard, wholly or in part, old methods, procedures, materials, equipment, facilities, and standards.

 

6.          To assign and distribute work.

 

7.          To assign shifts, workdays, hours of work and work locations as the County may determine, except where modified by a specific provision of this Agreement.

 

8.          To designate and to assign all work duties.

 

9.          To introduce new duties and to revise or add job classifications and duties within the unit, subject only to the provisions of Article 11, Section 1 hereof.

 

10.        To determine promotional opportunities and the need for and the qualifications of new employees, transfers, and promotions.

 

11.        To discipline, suspend, demote, or discharge an employee for “just cause.”

 

12.        To determine the need for additional education courses, training programs, on-the-job training, and cross-training and to assign employees to such duties for periods to be determined by the County.
[ER Ex 1, p. 4]

The exercise of any management prerogative, function, or right which is not specifically modified by this Agreement is expressly retained by the County, subject only to the claimed violation of a specific provision of this Agreement, which may be subject to the provisions of Article 13 hereof.

B.         Article 13:  Settlement of Disputes.

Section 13.1  Any grievance or dispute which may arise between the parties concerning the application, meaning, or interpretation of a specific provision of this Agreement shall be settled in the following manner:

Step 1:  Since it is the wish of both parties to this Agreement to settle any alleged grievance in the most expeditious and informal manner possible, a grievant shall take up an alleged grievance with his/her supervisor within ten (10) days of the occurrence (or when the grievant should have reasonably been aware of the occurrence) giving rise to the grievance.  The supervisor shall meet with the grievant and Federation representative and adjust the matter or deny the grievance within five (5) days following receipt of the written grievance.

Step 2:  If the grievance has not been resolved at Step One, it shall be presented in writing, stating the alleged violation and section of the contract affected, by the grievant to the Federation representative within five (5) days of the decision at Step One.  Thereafter, it may be presented in writing by the Federation representative to the department head.  All grievances presented at this step shall set forth:  the facts giving rise to the grievance, the provision(s) of the Agreement alleged to have been violated, the names of the aggrieved employees, and the remedy being sought.  The department head shall conduct such investigation or hearing as is deemed necessary and shall respond in writing to the Federation within ten (10) days after receipt of the grievance.  The decision of the department head shall be final and binding on the grievant, unless it is timely appealed by the Federation to the next step of the procedure outlined by this Article.  Since the burden to meet all the limitations and parameters of this Article lies with the moving party, failure to meet the filing time limitations on the part of the moving party shall render the grievance moot and it shall be considered waived.  If the County fails to answer within the time limits set forth in Article 13 of this Agreement, the grievance shall automatically proceed to the next step.  The time limits set forth in this Article may be extended by mutual agreement of the Federation and the County.

Step 3:  The Federation may provide notice to the County within five (5) days of its intent to arbitrate the matter with an arbitrator agreed upon by both the County and the Federation.  If the parties are unable to agree upon an arbitrator, the Oregon State Mediation and Conciliation Service shall be requested to submit a list of thirteen (13) names.  Both the County and the Federation shall have the right to strike names from the list alternatively until one name remains.  The party requesting arbitration shall strike the first name and the other party shall then strike one (1) name.  The process shall be repeated and the remaining person shall be the arbitrator.  The designated arbitrator shall hear both parties and take testimony and evidence in a hearing on the disputed matter and shall issue a decision which shall be final and binding on the parties provided that it must be within the scope of this Agreement and not detract from or add to the terms of the Agreement.  Expenses for the arbitrator shall be borne by the losing party; however, each party shall be responsible for compensating its own representatives and witnesses.  If either party desires a verbatim recording of the proceedings, it may cause such a record to be made, provided it pays for the record and makes a copy available without charge to the arbitrator.  If the other party desires a copy, both parties shall jointly share the cost of the transcript and all copies.  The time limits prescribed in this Article 13 shall be binding on all parties and shall be jurisdictional in nature unless extended by mutual consent; all references in this Article to a “days” shall mean a courthouse workday.

 

C.        Article 15.8: Promotional Opportunities.

It is the intent of this Agreement that wherever possible promotional opportunities within the bargaining until shall first be extended to employees in the bargaining unit, provided such employees are considered by the County to be qualified to perform the work in question.  The County shall be under no obligation to train and employee to become qualified to fill a vacant position, and shall give preference to present employees who are fully qualified and apply for such a job opening.  The County shall be the judge of an employee’s qualification and ability and upon request will state the reasons for such a judgment to the employee.  In the event two (2) or more employees for a job opening are satisfactorily qualified in the areas of knowledge, skills and abilities, seniority shall govern as between them.  Promotions within the department can be accomplished, upon approval from the Director of Human Resources, without following the normal posting requirements.  The County may limit job postings and recruitments for promotional opportunities to current employees or advertise and recruit outside as determined by the County in its discretion. [ER Ex 1, p. 18]

Other relevant policies

            The Klamath County hiring policy is also relevant to the instant case:

020.  RECRUITMENT AND SELECTION

PURPOSE

To establish the various roles and responsibilities in the recruitment and selection of employees; to maximize efforts and resources in selecting the best employees available.

POLICY

It is Klamath County’s policy to hire employees who are the best qualified to meet the requirements of the job and the organization’s overall goals.  Klamath County has established standard practices related to recruitment and selection of employees for several reasons.  These include:  to establish job-related and consistent hiring practices throughout the County; to maintain a highly qualified, successful and productive work force; to contribute to the organization’s goals of promoting diversity among its employees; and to continually improve the performance of its employees and the quality of public service.  Klamath County’s hiring practices are intended to comply with all applicable state and federal laws.  The rights of employment applicants and current employees to be free from discrimination shall be protected and honored.

All applicants seeking employment in an open position must submit a current Klamath County Employment Application form to the Human Resources Department.  In addition, other information may be required as detailed in the job announcement.  For select positions, a resume may be accepted during the initial screening process in place of the Employment Application.  The distribution and collection of Employment Applications is coordinated by the Human Resources Department.  Employment Applications are normally accepted only for positions which are currently posted.   All applications must be complete and must include an original signature of the applicant (this may be obtained post-hire in cases where an application has been submitted electronically or via facsimile).  Applications are considered active for a period of 30 days maximum.

GUIDELINES: The steps detailed below should be followed when hiring any full-time, part-time, temporary or seasonal employee:

·      General philosophy:  Klamath County hires candidates who best demonstrate the technical and professional skills to meet both the requirements of the position and the goals of the organization.  As a result, the most qualified applicant may not always be the candidate with the most years of experience or highest degree of education.  The most qualified candidate may be the applicant who can demonstrate not only technical or professional competence, but also other important skills or qualities, as determined by the County.  These may include relevant factors such as communication and interpersonal skills, orientation toward teamwork, creativity and initiative, demonstrated ability to be responsible and accountable, and other characteristics associated with high performance.

·      Verify the Job Description:  To fill a position, first obtain a copy of the current job description from Human Resources.  Be sure to review and update all information, including job responsibilities and minimum requirements.  The updated job description should be signed and returned to Human Resources.

·      Selection Process, Criteria and Tools:  The Human Resources staff and the hiring supervisor should work together to outline the selection process, determine the hiring criteria and design selection materials and tools.  All selection criteria, materials and tools must be job-related, objective and legally compliant.

Selection Criteria:  The Human Resources Department will review all Employment Applications.  For each applicant, an initial determination will be made, based on the established selection criteria whether the candidate is minimally qualified and suitable for the position.  Examples of selection criteria include: education, training or professional certification that is job-related; Work experience that represents similar levels of responsibility required of the vacant position; Job-related knowledge, skills and abilities, such as writing or communication skills, technical skills, or the ability to establish effective working relationships.

Selection Process, Materials and Tools:  Applicants are normally tested and evaluated at each step in the selection process, from completing an Employment Application through final reference verification and assessment.  The selection process is designed to obtain information to aid the hiring supervisor in making a sound employment decision.  All selection materials and tools must be approved by Human Resources before being implemented.

·     Required Steps in the Selection Process: The selection process must include the following:

Completed and signed application (cover letter and resume may be replaced for select positions and is  otherwise considered optional);

Interview by both the hiring supervisor and interview panel;

Reference verification and assessment by Human Resources

·      Use of a scoring matrix:  Supervisors, in consultation with Human Resources, should develop a screening matrix to assist in the selection process.  By doing so, specific criteria may be evaluated, weighted and scored by each interview panel member and then discussed by the entire group.

·      Job posting:  Human Resources Department prepares job announcements for all positions.  Along with the Department Head, Human Resources will determine whether the vacancy is posted internally, externally or both.  An internal posting is extended to include only current Klamath County employees who have already completed their probationary period.  Exceptions to this guideline, must be approved in advance by the Director of Human Resources and the BOCC.  Current County employees receive employment consideration on a strictly competitive basis whenever a job is posted, subject to labor contract requirements.  External postings are normally posted for a minimum of ten (10) days; Internal postings for five (5) days.

·       Screening for minimum qualifications: The Human Resources Department will collect all employment applications screening them for the minimum qualifications and desired skills.  Only those applications which meet the minimum standards established on the job description and job announcement will be forwarded to the hiring supervisor for further consideration.

·      Interviews:  The hiring supervisor should review the applications received and select candidates to be interviewed based on the selection criteria previously developed and approved by Human Resources.  Generally, the supervisor should select at least three (3) applicants to be interviewed.  The hiring supervisor should then identify a minimum of two (2) other department employees or supervisors to comprise an interview panel.  The panel will conduct the interviews using the interview questions and scoring matrices previously developed.  At the supervisors request, Human Resources is available to coordinate all components of the selection process, including scheduling interviews, providing guidance to supervisors, and supporting the interview panel.

·      Reference Verification and Assessment:  Human Resources will conduct a minimum of two reference verifications on all final job candidates.  Each reference will be asked to provide information related to the candidate’s knowledge, character, skills and abilities.  An assessment of the information collected will be performed by Human Resources and the hiring supervisor will then be notified whether the candidate is recommended for hire or not.  As a priority, Human Resources will contact former supervisors to obtain reference information over personal or non-work-related references.

·      Hiring Recommendation & Decision:  The hiring supervisor should prepare a final recommendation for hire and forward it to Human Resources.  It should include justification for the hiring decision based upon the results of the selection process.  The recommendation should also identify the starting step I the compensation range.  All requests for starting pay above Step 1 must be justified by stating how the applicant exceeds the minimum qualifications.  Such requests must be approved by the Department Head and should also address any budgetary impacts.  Requests for compensation exceptions must be reviewed for internal equity and must be approved by the Director of Human Resources and BOCC.

·      Notification of Selection Decision:  The Human Resources Department will prepare a written job offer to the successful applicant…..The Human Resources Department will also notify unsuccessful applicants of the hiring decision via written correspondence….

·       Documentation of the Selection Process:  At the close of every selection process, the Human Resources Department will maintain for a minimum of three (3) years, a filed composed of:
A copy of the Employment Application for the selected candidate (original to the employee file);
A copy of the job offer letter;
The completed screening matrices for all interviewed candidates;
All interview questions or other selection tools used;
Applications of all candidates interviewed;
Applications of all candidates not interviewed;
A summary outlining the position filled, dates of the interviews, the interview panel, candidates interviewee for the position and the person hired;
A copy of the supervisor’s memo recommending a hiring decision;
Any other documents relevant to the selection process.

FACTS

      Klamath County and the Federation have only recently negotiated a Collective Bargaining Agreement.  Prior to being represented by the Federation the Parole and Probation Offices, the Department was represented by the Laborers Union, who negotiated language stating: “It is the intent of this Agreement that wherever possible promotional opportunities within the bargaining until shall first be extended to employees in the bargaining unit, provided such employees are considered by the County to be qualified to perform the work in question.”  When negotiating the new Collective Bargaining Agreement, Klamath County and the Federation chose to simply include the prior language regarding promotional opportunities from the Laborers contract.

Lynette Hammond has worked for the Klamath County Parole and Probation Office since 1995, starting as a secretary.  She was promoted to Parole Officer I in 1997 after filing a grievance, and was promoted that same year to the position of Parole Officer II (PO II), working as such for the past eight and one-half years.

            In January 2006, a restructuring of the Department resulted in the creation of a new Parole Officer III (PO III) position.  By laying-off two of the three PO II positions and adding one PO III, the County intended to increase flexibility in serving its range of clients.  The PO III could serve lower-risk clients, as the PO II had, but could also work with higher-risk clients, which the PO II could not.  Officer Hammond was retained as the only PO II in the Department.

            To fill the new PO III position, the County decided to recruit internally, eventually promoting Linda Mills, who had been identified for layoff as a PO II.  Officer Mills had previously applied for this position and had filed a grievance with the Laborer’s Union in 2004 when the County failed to promote her.  At that time, the County had found that Ms. Mills was not the “best qualified candidate for the position”.  Since that time, Officer Mills has obtained the education and experience necessary to compete successfully for the promotion to PO III. While Ms. Mills and Ms. Hammond have comparable training and experience, Ms. Mills has a college education.  Ms. Hammond did not compete for this promotion.

            Shortly after this departmental restructuring, one PO III left the department, creating a vacancy.  Officer Hammond decided to apply for the promotion.

            Along with five other internal and external candidates, Officer Hammond participated in the Department’s standard selection process, which takes place in three phases: an initial screening of the applications; an oral interview panel comprised of internal personnel, FOPPO representation, and an external evaluator; and finally an interview of the top candidates by the supervisor of the position (Kiki Parker) and Director of the Department (Steve Berger). 

Normal practice is to grant a final interview only to the top 2-3 applicants (those within 20 points of the top score). However, in this case the Department decided to consider “preference” to internal candidates and granted an interview to Ms. Hammond (whose score was more than 20 points less than the highest).  After this final interview, Ms. Hammond ranked fourth out of five applicants. 

The position was awarded to Jessica Flagherty, a probation officer from California.  The FOPPO filed a grievance on behalf of Officer Lynette Hammond March 20, 2006.         

DECISION

Contractual Language

The applicable standards for contract interpretation are well established.  Where the language in a collective bargaining agreement is clear and unambiguous, the arbitrator must give effect to the plain meaning of the language.  This is so even when one party finds the result unexpected or harsh.  Words are to be given their ordinary and popularly accepted meaning, unless other evidence indicates that the parties intended some specialized meaning.[1]  It is the goal of the arbitrator to interpret the language in the manner the parties intended. “Arbitrators must strive to determine what the parties were attempting to accomplish by the contract language used and to effectuate that intent.”[2]

            This case hinges on the language adopted by the FOPPO and Klamath County from the previous Laborer’s Union agreement describing promotion opportunities for qualified applicants.  Again, these words are to be given their ordinary and popularly accepted meaning, unless other evidence indicates that the parties intended some specialized meaning.[3]

The County Has The Right to Determine a Candidate’s Qualifications

It is clear that the County retains the right to ascertain the qualifications of an applicant for a position.  This prerogative is outlined in the Agreement in Article 4: Management Rights, which gives the County the rights, among others, to perform the following:

Article 4: Management Rights

 

4.  To establish, revise and implement standards for hiring, classification, promotion, quality of work, safety, materials, equipment, attire, appearance, methods, and procedures.

 

9.  To introduce new duties and to revise or add job classifications and duties within the unit, subject only to the provisions of Article 11, Section 1 hereof.

 

10. To determine promotional opportunities and the need for and the qualifications of new employees, transfers, and promotions.

The rights of the County in the hiring and promoting of employees are further agreed upon in Article 15:

Article 15.8: Promotional Opportunities

It is the intent of this Agreement that wherever possible promotional opportunities within the bargaining until shall first be extended to employees in the bargaining unit, provided such employees are considered by the County to be qualified to perform the work in question. ….The County shall be the judge of an employee’s qualification and ability and upon request will state the reasons for such a judgment to the employee.

             At first blush it appears that the County has unfettered discretion to determine and hire the most qualified candidate for the job in question.  Unfortunately for the Department and perhaps the citizens of Klamath County, the contract language adopted from Laborer’s Union does not secure this right.  In fact, its omission of the phrase “most qualified” limits the County to promoting any minimally qualified employee. 

            As noted in the final paragraph of Article 4,

The exercise of any management prerogative, function, or right which is not specifically modified by this Agreement is expressly retained by the County, subject only to the claimed violation of a specific provision of this Agreement, which may be subject to the provisions of Article 13 hereof.

Such an in-text modification exists in Section 15.8.  From the plain meaning of this section, the County is bound to extend a promotional opportunity to an internal candidate, “provided such employees are considered by the County to be qualified to perform the work in question”.  This wording does not allow the County to evaluate the merit of the candidate relative to the other applicants, but imposes an obligation to promote the employee if he or she is found to be minimally qualified. 

            While the County’s policy #020 clearly puts hiring the most qualified candidate in the forefront of the selection process, the language in the Agreement does not.  It simply states that the internal candidate must be “qualified”.  As Arbitrator Kienast has previously ruled, language requiring the promotion of a “qualified” candidate did and could not mean “best qualified” (2001 National Arbitration Center 139).[4]

            It is clear that hiring a “qualified” candidate over the “best qualified” one may not always be wise.  The concern of the Department is understandable when this promotion involves responsibility for the County’s top offenders. Notwithstanding these considerations, the contract language remains. The applicable standards for contract interpretation are well established.  The clear and unambiguous language must be applied “as is” and may not be modified by the Arbitrator. This restriction is found in the Agreement Article 13 which states that an Arbitrator’s decision “must be within the scope of this Agreement and not detract from or add to the terms of the Agreement.”  While I have struggled to find an approach to ignore the clear language in the parties Collective Bargaining Agreement, I have been unsuccessful. As stated by Arbitrator Jules J. Justin:

Plain and unambiguous words are undisputed facts….An arbitrator’s function is not to rewrite the Parties’ contract.  His function is limited to finding out what the Parties intended under a particular clause.  The intent of the Parties is to be found in the words which they, themselves, employed to express their intent.  When the language used is clear and explicit, the arbitrator is constrained to give effect to the thought expressed by the words used.[5]

            In the instant case, the Parties are bound to the wording they agreed upon in Section 15.8 and the language requiring the promotion of a “qualified” candidate did and could not mean “best qualified.”

Was Officer Hammond Minimally Qualified for the Position?

            In light of the limitations discussed above, the County exercised its full right if it found Officer Hammond to be minimally qualified for the position of PO III.  Whether the County intended to deem Officer Hammond best qualified for the promotion by allowing her to compete in all three rounds is at this point irrelevant.  The fact remains that the County’s conduct at all three steps of the selection process indicated that it found Officer Hammond minimally qualified for the job. 

            Step 1: Screening of applications

            The purpose of this first phase of the selection process is to weed out unsuitable applicants before proceeding to the panel interview.  As stated in the County’s hiring policy #020, this is an initial determination of whether the candidate is “minimally qualified and suitable for the position.”   Further, “only those applications which meet the minimum standards established on the job description and job announcement will be forwarded to the hiring supervisor for further consideration.” According to the policy, selection criteria include education, work experience that represents similar levels of responsibility, job-related knowledge, skills or abilities, such as communication skills and the ability to establish effective working relationships.

            If the County had been convinced that Officer Hammond was not qualified to perform the full range of duties assigned to a PO III, it should have denied her candidacy at this first screening.  However, the evaluator passed her on to the next step.  As the County states in its Brief, “While her application met the minimum requirements for granting an interview, her ranking following the first interview phase put her fifth out of six applicants” (emphasis added).  

            The County’s final evaluation of the candidates found Officer Hammond unqualified relative to the other applicants.  However, the fact that she passed the initial screening (intended to determine minimum qualification) secures her right, per the County’s own policies and the Collective Bargaining Agreement, to be promoted to PO III.  As it stands, the contract language gives no basis on which to find the employee qualified relative to other applicants.  It simply and clearly states that the candidate must be qualified to perform the duties of the position.

            Step 2: Panel interview

            In further support of the fact that the County found Officer Hammond minimally qualified for the promotion is the ranking given by Mr. Gangstee (Officer Hammond’s current supervisor) after the first round of interviews.  According to his testimony, Mr. Gangstee ranked Ms. Hammond higher than Ms. Flagherty, who was ultimately deemed most qualified for the position.  It would be grossly inconsistent to rank an unqualified candidate over a highly qualified candidate, so it may be assumed that Mr. Gangstee found Officer Hammond to be qualified “to perform the work in question.”  It should be noted that neither of the last two steps of the hiring process focused on the minimum objective functions of the job.  The second step of the hiring process consisted of the following questions:

1.    Please provide a general review of your experience, education and qualifications that you feel apply to this position.

 

2.    What do you think are your major strengths?

 

3.    What did you do the last time you received instructions with which you disagreed?

 

4.    Share an example of a creative or alternative sanction that you imposed, which assisted in changing an offender’s behavior.  Describe the change.

 

5.    Share examples of how you promote teamwork and communication within your current position, or previous examples.

 

6.    As an employee, how would you promote a positive    work environment and deal with negativity in the workplace?

 

7.   Do you have any questions about Klamath County or the PPO position and recruitment?

            From these questions Mr. Gangstee found Officer Hammond to be qualified.  It should be noted that in making this award I do not seek to substitute my opinion for that of the Employer, but rather, to adopt the findings made by the employer at the first two steps of the hiring process.

            Step 3:  Final interview

            While Officer Hammond’s poor performance in the final interview could be taken to prove her lack of qualification for the position, the questions asked give no basis for this judgment.  Had the questions been crafted to ascertain the applicant’s minimum qualifications for the position, her performance could have been used to evaluate whether the County was bound to promote her.  Unfortunately, the interview questions provide no way of determining her minimum qualifications and thus defer this judgment to the previous interview steps, where she was deemed minimally qualified as discussed above.  The questions asked at the final interview were:

1.    Please describe your experience, education, and qualifications that you believe you possess to apply for this position.

 

2.    Briefly describe your core beliefs about the field of Community Corrections and your motivation for being a Parole and Probation Officer.

 

3.    Briefly describe your understanding of the “stages of change” and its application to parole and probation supervision.

 

4.    What do you do to promote a positive, productive work environment?

 

5.   What has been your experience using a criminogenic needs/risk assessment tool and supervision planning process?

 

6.    How would your co-workers describe you?

 

7.    How important is the relationship between an offender and the supervising PPO as it relates to affecting pro-social change with the offender.

 

8.   Why should we offer this position to you?

While these questions were extremely useful in determining the “best” qualified candidate, they bare little relationship to the minimum qualifications of the position, to wit:

KNOWLEDGE, SKILLS, AND ABILITIES:

 

Considerable knowledge of behavior and adjustment problems of adult criminal offenders; considerable knowledge of the adult criminal justice system, including sentencing and probation and parole procedures; considerable knowledge of interviewing and behavioral and probation/parole counseling techniques; considerable knowledge of caseload management; basic knowledge of service resource development.

 

Ability to investigate cases and objectively evaluate information; ability to assess personal needs of adult offenders and determine treatment plans; ability to maintain accurate and complete casework records; ability to communicate effectively both orally and in writing with individuals of varying backgrounds, including offenders, court and law enforcement personnel, and the general public; ability to establish and maintain cooperative working relationships with individuals, whether members of the public or coworkers, from diverse groups and backgrounds; ability to work without direct supervision; ability to meet deadlines and schedule time efficiently; ability to work effectively in stressful situations; ability to work as a team member and share knowledge and skills.

            In short, the questions asked during the final round of interviews do not directly relate to minimum qualifications for the job, and even if they did, it would be immaterial as Ms. Hammond had already been found qualified for the job.  As stated by the County’s policies:

Screening for minimum qualifications: The Human Resources Department will collect all employment applications screening them for the minimum qualifications and desired skills.  Only those applications which meet the minimum standards established on the job description and job announcement will be forwarded to the hiring supervisor for further consideration.[6]

            As stated by the County in its brief “only the County can make judgments about employee qualifications.  In light of the contract language, the arbitrator is prohibited from judging an employee’s qualifications.”  I agree.  Klamath County following its own policies and procedures found that Ms. Hammond met the minimum qualifications for the PO III position.  While I am bewildered as to why Klamath County chose its current minimum qualifications for the PO III position, it is not within my power to change them.

Damages

            As has often been remarked, no good deed goes unpunished.[7]  In this case the management of the Klamath County Probation Department encouraged Ms. Hammond to apply for the vacant PO III position. Additionally, the County made an extraordinary effort to be fair during the hiring process, and I agree with all of their policy arguments.  I agree with the testimony of the Director of the Department, Steve Berger, regarding the need for higher education for Probation Officers and wish that I could rule in his favor.  However, for whatever reason, Klamath County has chosen to establish minimum qualifications for the PO III position that neither Mr. Berger nor myself agree with.  While I wish I could ignore the contractual language in question, I cannot.  This raises the unfortunate issue of damages.

            While I believe that the County acted in good faith, its actions still resulted in a contractual violation.  A long history of arbitral precedent requires that Officer Hammond be made whole for this violation.  It is axiomatic that Ms. Hammond be granted a PO III position retroactively to the date Jessica Flagherty was hired, and given back pay back to that time.

CONCLUSION

            The burden is on the Union to establish by a preponderance of the evidence that the County violated the parties’ Collective Bargaining Agreement by not promoting Officer Hammond to the position of PO III.  The Union has done so by establishing that Klamath County found Officer Hammond “minimally qualified” for the position.

While a remedy of promotion and back-pay is harsh in this situation, it is required by the arbitral precedent that Officer Hammond be “made whole” for not receiving the promotion and the related wage increase.

AWARD

The grievance is sustained.  As provided for in Article 13: “Settlement of Disputes” of the Collective Bargaining Agreement, all fees and expenses for the arbitrator shall be borne by the losing party.  However, each party shall be responsible for compensating its own representatives and witnesses.

                                                                        ___________________________

                                                                        David Gaba, Arbitrator

                                                                        October 30, 2006
                                                                        Seattle, Washington



[1] Seattle School District, 119 LA 481 (2004).

[2]
City of Davenport, 91 LA 855 (1988), Kitsap County, 119 LA 1753 (2004).

[3]
Seattle School District,  119 LA 481 (2004).

[4]
While this case was cited by the Union and is interesting, the National Arbitration Center redacts many of its awards and the submissions are not reviewed and cataloged as are BNA cases.  Accordingly I give this case no weight.

[5]
Phelps Dodge Copper Prods. Corp., 16 LA 229, 233 (1951).

[6]
Klamath County Hiring Policy .020

[7]
Claire Booth Luce in H. Faber, The Book of Laws, 1980

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