of Ohio and SEIU/District
OPINION AND AWARD
In the Matter of Arbitration
State of Ohio, Office of Collective Bargaining and the Department of
Rehabilitation and Correction
An arbitration hearing was conducted March 15, 2007, at the Offices of SEIU/District 1199, Columbus, Ohio before Panel Arbitrator N. Eugene Brundige.
The stipulated issue presented to the Arbitrator reads:
“Did the Adult Parole Authority, DPCS, ODRC, violate Article 30.02 of the 2003-2006 Collective Bargaining Agreement by promoting a bargaining unit member less senior than the Grievant? If so, what shall the remedy be?”
The parties further jointly stipulated the following as facts:
1. The grievance is properly before the arbitrator.
2. The grievant, Brenda Duenas, has been employed as a Parole Officer with the Adult Parole Authority since January 9, 1995.
3. Jill Herman has been employed as a Parole Officer with the Adult Parole Authority since February 28, 1997.
4. Jill Herman, Parole Officer, was the selected candidate for PCN 2200.0 posted 1/31/06.
5. The position at issue is Senior Parole Officer PCN 2200.0 posted statewide from 1/31/06 to 2/10/06.
6. The grievance involves the selection and filling of a bargaining unit position under Article 30.02 of the 2003-2006 collective bargaining agreement.
All parties were given full opportunity to examine and cross examine witnesses, present evidence, and arguments which they did competently and professionally.
Post hearing briefs were filed in a timely manner.
Awarding the Job (Transfers and Promotions and Demotions)
transfer" is defined as employee requested movement to a posted vacancy which is in the same pay range
as the classification the employee currently holds.
is the movement of an employee to a posted
vacancy in a classification with a higher pay range. A
higher pay range is defined as a pay range in which the first
step or the last step has a higher pay rate than the first or last step of
the pay range to which the employee is currently
"Demotion" is defined as the movement of an
employee to a vacant position within a classification covered by the terms of this Agreement pursuant to the provisions set
forth for the filling of a vacancy, to a lower pay
range only within the employee's current agency. A lower pay range is defined
as a pay range in which the first step has a lower rate
of pay than the first step of the pay range to which the employee
is currently assigned. Should the employee be selected for an inter-agency
transfer to a position in a lower pay
range than that currently held, the
employee shall be placed in the step closest to but not to exceed the
step currently held by the
Transfer" is defined as an employee-requested movement to a posted vacancy
in a different agency. Should the employee
be selected for an inter-agency
transfer to a position with a higher pay range than that
currently held by the employee, the employee shall be placed
in the step to guarantee an increase of approximately four
percent (4%). Should the employee be
selected for an inter-agency
transfer to a position in the same pay range currently held by the
employee, the employee shall be placed in
the same step of the pay range. If the agency has a Memorandum
of Understanding (MOU) regarding pay, it shall
take precedence over this section.
Employees in classifications not covered by the terms of this Agreement may not be
demoted into a classification covered by the terms of this Agreement
without the agreement of the Union. This does not include employees in the unclassified
service in classifications not covered by the terms this Agreement who may be
placed into a position covered by the
terms of the Agreement where such unclassified status is revoked
consistent with civil service law.
Applications will be considered filed timely if they are received or postmarked no later than the closing date listed on the
posting. Applicants must clearly demonstrate on the application how they possess the minimum qualifications for the
position. Failure to do so will result in the application being
screened out and rendered ineligible for further consideration.
All eligible applications shall be reviewed considering the following criteria: qualifications, experience, education,
and work record. Employment diversity may be a factor
in the selection. The Employer maintains the right to administer a test or
instrument to measure the listed criteria. Among
those that are qualified the job shall be awarded to the applicant with
the most state seniority unless a junior employee
is significantly more qualified based
on the listed criteria. The Union may challenge the validity of the test or
instrument as part of a non-selection
The Employer may use proficiency testing and/or assessments to
determine if an applicant meets minimum qualifications
and, if applicable to rate applicants pursuant to this Section. Proficiency tests or other assessments shall
be released only to a Union designee who
is not an employee of the State of Ohio that
a review process that assures maintenance
of security and integrity of the test.
The Employer and the Union agree, through each Agency Professional Committee to review and discuss the agency's
EEO Strategic plan prior to submission to
State EOD. Such plans shall
include an employee diversity analysis. Job vacancies shall be awarded in the
following sequential manner:
A. The job shall first be awarded to a
applicant working at the
facility where the vacancy exists
in accordance with the above criteria.
If no selection is made from A above, the job shall be awarded to a bargaining
unit applicant working in the agency where the vacancy exists in accordance with the
If no selection is made from B above, the job shall be awarded to an applicant working in the
bargaining unit in accordance with the above criteria.
If no selection is made from C above, the job may be awarded by hiring a new employee.
Within non-institutional agencies and within the Adult Parole Authority, step A above shall not apply.
This Agreement supersedes Ohio Civil Service Laws and
Rules regarding eligibility lists for promotions.
Employees serving in a trial or probationary period shall
not be permitted to bid on job
vacancies. An employee who fails to complete the probationary period for a
position shall be restricted from bidding on the same classification for
one (1) year.
An employee shall be permitted to bid on a job vacancy while receiving disability leave benefits, but shall not be eligible to fill the vacancy unless the employee is
available to participate in the selection process
and available to assume the position on the
designated start date.
The Adult Parole
Authority of the Ohio Department of Rehabilitation and Correction determined to
fill a position of Senior Patrol Officer identified with a Position Control
Number (PCN) of 2200.0. The
position was posted statewide on January 31, 2006, and remained posted until
February 10, 2006.
The Employer utilized
its Senior Patrol Officer screening guide to evaluate each applicant considering
four (4) criteria, “qualifications, experience, education and work record.” The
collective bargaining agreement requires that, “among those that are qualified
the job shall be awarded to the applicant with the most state seniority unless a
junior employee is significantly more qualified based on the listed criteria.”
The first three (3)
sections of the process - A, B, and C - are scored by the Personnel Department
based upon the applications of the candidates.
Section D consists of an interview panel of four (4) persons who assign
points to answers given to specific questions. The same questions are asked of
All four (4) sections
of the process are totaled.
Jill Herman was
selected for the position in question. On
the Employer’s screening guide she received a total score of 72. Ms. Duenas was the more senior candidate and she received a
total score of 63.
The Employer utilizes
a scale which states that for a junior candidate to be judged “significantly
more qualified” the junior employee must have at least two (2) more points per
years of seniority difference.
According to the
Employer’s calculation there is a nine (9) point differential which justifies
selecting the less senior employee. According
to the Employer’s guidelines anything more than a four (4) point difference
would justify the selection.
There is agreement
among the parties that both candidates meet the minimum qualifications for the
The Grievant and the
Union believe Ms. Duenas should have been awarded the position.
A grievance was filed April 18, 2006, challenging the decision
of the Employer. The statement of
the grievance reads, “Grievant was
denied a promotion and promotion was granted to an employee with less
POSITION OF THE EMPLOYER:
The Employer notes
for the record that the grievant Ms. Duenas is a dedicated employee and “there
is no question that the grievant is an asset to the organization in her capacity
as parole officer.”
The Employer believes
that the process utilized in selecting an applicant in this case “rationally
measured criteria the Contract prescribes for all selections”. 
The Employer relied
on a previous case by Arbitrator Brookins which analyzed the selection process
for determining “significantly more qualified” and found that it was an
equitable means of deterring that question.
The Employer believes
it has met its burden and the selection of the junior candidate was not
arbitrary, capricious, or discriminatory.
The Employer points
out that the Union has challenged only specific parts of the selection process.
Sections A and B of the process do not appear to be in dispute.
The grievant was
awarded fifteen (15) points for her educational achievement (Section A) and the
selected candidate was awarded twenty (20).
received the maximum twenty (20) points for Work Record (Section B).
(Experience) was challenged by the Grievant and Union.
The Grievant's length of service to the Department was stipulated by the
parties. The Grievant was properly
credited with eleven (11) years one (1) month of service.
Because the Grievant had training experience she received an additional
two (2) points for a total of thirteen (13).
candidate received eleven (11) points for her service with the Agency plus
additional work related experience. She
also received two (2) points for training.
The Employer argues
that the calculation for experience was properly done for the selected
The Employer argues
that the banking, retail sales, and legal-clerical work were not related to the
position being filled and thus were rightly excluded from the selection process.
The Employer takes
specific exception to the assertion by the Union that the experiences the
Grievant listed at Star Bank, Famous Footwear, and First Virginia Bank should
The Employer also
disagrees with the Union that the experience at a municipal court and two (2)
law firms were related to the duties. The
Employer believes these duties were clerical and administrative support in
the Grievant performed some Senior Parole Office duties during her tenure, the
Employer argues that these activities were included in the overall credit she
received as a parole officer.
Management noted that
the Grievant admitted under cross examination that she did not note on her
application that her work at the Akron Municipal Court was an internship thus it
concludes this experience cannot be considered.
The Employer argues
that even if some of the experiences are counted they cannot make up the nine
(9) point differential between the two candidates.
The Employer turned
to a defense of Section D of the process - the qualification and selection
The Employer believes
it proved that it applied its process fairly and in a manner that was not
discriminatory, arbitrary, or capricious. The
Employer concludes that this shifts the burden to the Union to “prove
Management notes that
the Union challenges the subjective nature of the interview process and argues
that the Grievant was not treated unfairly.
The Employer offers
its analysis of questions 1 and 2. This
Arbitrator will not discuss those defenses in detail here due to the fact they
will be discussed in the Opinion and Award section.
Finally the Employer
notes the Union raised the issue that other selections of Senior Parole Officers
have been inconsistently applied and argues that the Union has failed to prove
any such cases.
concludes by arguing that the Union did not meets its burden in this case and
asks that the grievance be denied in its entirely.
POSITION OF THE UNION:
The Union argues that
the burden in this case lies with Management to prove that the selected
candidate was “significantly more qualified.”
The Parties stipulated that both candidates meet the minimum
qualifications and thus it is incumbent upon the Employer to demonstrate how the
selected employee meets the “significantly more qualified” standard.
The Union believes
the Grievant was scored incorrectly in the areas of experience and
The Union notes that
the Education section criteria does not permit credit for additional degrees and
certificates and cites that lack of
credit as a flaw in the process.
In spite of this
concern the Union concedes that “education appears to have been scored
Likewise the Union
does not dispute the calculation of the record/performance section wherein both
candidates received the maximum twenty (20) points.
The Union then offers
an analysis of the experience scoring section.
After a careful review of the scoring of the selected candidate’s
record the Union concludes “it appears that Herman’s score of thirteen (13)
as shown on page 5 of JX-5 is correct per Management’s scoring
The Union notes that
the scoring of the Grievant did not take into account her prior work experience
when the scorer gave her eleven (11) points and two (2) additional as a trainer.
The Union notes that
Personnel Officer McFadden testified that she did not consider the contents of
the the Grievant’s resume attached to the application.
The Union argues that
resumes should be considered noting that the DAS posting makes reference to
resumes being optional, and noting that the bottom of the application makes
reference to “applications/resumes received through the US Mail.” 
The Union points to
the testimony of Personnel Officer McFadden who noted that credit “could have
been given” 
for each of the jobs listed.
The Union offers its view of what the summary of points should be and incorporates that view into the following chart:
The Union discussion of Section D of the process (Qualifications) notes that three (3) of the four (4) members of the interview team are in the same chain of command (Ball and Dowdell report directly to Regional Administrator Joe Dubina.) Only Carolyn Reed, Parole Services Supervisor from Cleveland, was from a separate unit.
The Union notes that
“the panel selected for this interview certainly opens the door for bias and
The Union also
believes the panel violated the procedures and instructions established for the panels which states, “Each interviewer shall
independently record the interviewee’s responses, equate a score to each
question and sign and date their form. Each
member of the interview panel shall independently score the answer to each
The Union then
offered its own analysis of the scoring of questions 1 and 2 of the structured
The Union cites a
decision rendered by Arbitrator Robert G. Stein wherein he discusses the
criteria for determining “significantly more qualified.” 
The Union believes
the Employer has not met its burden in this case and requests that the grievance
The remedy requested is
to award the Senior Parole Officer position in the Akron Regional Office to the
Grievant and that she be awarded the pay difference for the period of time Ms.
Herman has held the position.
The burden of
persuasion in promotion cases has been discussed by many arbitrators.
Arbitrator Janet Gaunt succinctly stated the standard observed by many in
a 1988 case when she stated:
“In promotion cases
challenging action under “relative ability” clauses, union must establish
that bypassed senior bargaining unit member was qualified to fill position in
question, and then burden of proof shifts to employer to demonstrate that select
applicant was substantially better in ability and performance.” 
In this case the
Parties have stipulated that the Grievant meets the minimum qualifications for
the position. Thus, the threshold
question has been answered. The
burden to convince the Arbitrator that the junior employee is “significantly
more qualified” lies with Management.
The Employer is to be
commended for its efforts to provide a system that attempts to fairly determine
the question of “significantly more qualified,” for such determinations are
always difficult because the lives and careers of individual employees are
Such cases are very
fact intensive and require that each case be examined to determine if each
applicant is treated fairly and is given full credit for the contractual
Bargaining Agreement gives the Union the right to challenge any test or
instrument utilized, but nothing in the record of this case indicates that the
Union has elected to do so.
Based upon the fact
that other arbitrators have reviewed the current departmental procedure and
upheld it, and the reality that the Union has not challenged the instrument
itself, the consideration in this Opinion will be limited to the application of
the process in this specific case.
There are two (2)
basic issues in this case. The
first relates to whether information on a resume must be considered by
Management in assessing points for sections A, B, and C.
The second relates to
the interview process (section D) specifically questions 1 and 2.
Management points to
Section 30.02 where it states, “Applicants must clearly demonstrate on the application
(emphasis added) how they possess the minimum
qualifications (emphasis added) for the position. Failure to do so will result in the application being
screened out and rendered ineligible for further consideration.
The process is
clearly a bifurcated one. First,
applications are screened to weed out those who do not meet minimum
qualifications. A clear reading of
the agreement shows that this is the focus of this section and this phrase.
After the initial
minimum qualifications are determined the remaining applications are more
carefully reviewed based upon the process utilized by the Agency.
Shaver admitted on cross examination that she considered resumes as a part of
direction to applicants that resume materials will not be considered, each
applicant has a right to assume such material will be considered.
McFadden admitted that she did not consider the contents of the resume of the
Grievant. Thus, it is my
determination that Management erred by not considering the material contained on
As an Arbitrator I
hesitate to substitute my judgment as to which resume items should be counted
and how much weight should be
given. Instead I will merely rely
on the testimony of Personnel Officer McFadden as she stated under cross
examination the points she would have awarded if she had considered the resume.
Ms. McFadden testified that she would have awarded .5 points for the Akron Municipal Court Internship if it had a duration of at least 200 hours. Ms. Duenas testified that the internship was for a period of 400 hours.
Likewise she testified that she would have awarded .5 points for the work with Buckingham, Doolittle, and Burroughs with a three (3) month carryover.
Ms. McFadden was less sure she would have counted the one (1) year experience with Rosen and DeMartino law firm. She said she would have discussed that entry with her supervisor. I will not include any points for this entry.
Ms. McFadden would have awarded three (3) points for First Virginia Bank with a four (4) month carryover, and one (1) point for the Star Bank entry with a four (4) month carryover.
By my calculation an appropriate score for Ms. Duenas would be sixteen (16) points with a twelve (12) month carryover. Ms. Duenas states seniority was eleven (11) years plus a one (1) month carryover. Thus the score for Experience would be seventeen (17) plus the two (2) points for training for a total of nineteen (19).
The second issue relates to the Interview section of the process.
Management argues that there is some type of a “shifting burden” which requires the Union to prove how the interview process was arbitrary or capricious. I disagree. The more subjective nature of the interview process, and this particular process in particular, leaves the burden still with Management to persuade.
I take note of the Union’s point regarding the composition of the screening panel regarding the possibility of subjectivity due to the composition of the panel. While the point is well taken, great deference is given to Management to make its own determination regarding management processes.
The risk for Management is that such appointments invite greater scrutiny of the actions taken by that panel.
The question of compliance with internal departmental policy is a different one. Joint Exhibit 4 states the requirements for panels. Section D states:
same job related questions shall be asked of each applicant interviewed and the
responses recorded and scored as objectively as possible.
Each interviewer shall independently record the interviewee’s
responses, equate a score to each question and sign and date their form.
Each member of the interview panel shall independently score the answer
to each question. At the conclusion
of the interview, the members of the panel shall discuss the interviewee’s
responses and come to a consensus recording the score for each question on the
screening criteria. Twenty – (20)
is the maximum number of points allowed.”
The testimony of Mr. Dubina does not clearly indicate that each interviewer independently recorded the responses and signed and dated their respective forms. Instead his testimony and a review of the response sheets of each panel member would indicate that agreement was reached before any scores were recorded.
This would appear to fail to comply with the instructions provided by the Agency to interviewing panels.
Instead, based upon Joint Exhibits 8 and 9, it appears that the panel members each took notes, then discussed their impressions and all recorded the same number responses. The part that is missing is the independent numbers assignment of each question prior to seeking a consensus recommendation.
If these conclusions are correct, such action appears to not comply with the independent decision making required by Section D of the instructions.
In the instant case it does not appear to be necessary for the Arbitrator to further analyze questions 1 or 2. In so doing I render no judgment regarding whether the interview panel process in this case fulfills the requirements of the Collective Bargaining Agreement.
In summary, even allowing the interview numbers to stand, if the calculations had been properly done, the Grievant and the selected candidate would compare as follows:
The totals clearly do not comply with the Agency’s two (2) point per year standard.
In a broader sense I take seriously the words of Arbitrator Stein in Case No. 14-000-950712-0086-02-11 when he said:
order to justify the promotion of a junior employee over a senior employee, the
margin of difference must be discernible. Some
arbitrators give latitude to management to choose the more junior employee
except on cases where the margin is diminutive.
This type of reasoning would be persuasive if Article 30.02 was a typical
relative ability clause. However,
Article 30.02 is not typical, it requires the employer to meet a higher standard
of significantly more qualified. Significantly
more qualified means the junior employee must be superior, based on clear and
convincing qualifications. A junior
employee who may be marginally superior is not sufficient given the requirement
of 30.02. The burden is on the
Employer to demonstrate in a reasonable and sound way that the junior employee
In this case the Employer has simply not met the burden of convincing a neutral party that the junior employee is significantly more qualified than the Grievant even using its own process.
The grievance is granted.
Grievant shall be awarded the position of Senior Parole Officer in the Akron Regional Office.
The Grievant shall receive the difference in pay between her current salary and the salary she would have received as a Senior Parole Officer. Such back pay shall be from the time Ms. Herman was awarded the position.
Issued at London, Ohio this 16th
day of May, 2007.
 Employer’s Post Hearing Brief, page 1.
 Ferguson, OCB Award # 1358, 2/24/99
 Management’s Post Hearing Brief, page 9.
 Union’s Post Hearing Brief, page 2.
 Joint Exhibit 5.
 Union’s Post Hearing Brief, page 3.
 Union Post Hearing Brief, page 5.
 Case no.14-000-950712-0086-02-11.
 Wapato School District, 91 LA 1156, Wapato School District, and Public School Employees of Wapato.