BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
NORTHERN EDUCATIONAL SUPPORT
JT. SCHOOL DISTRICT NO. 1,
TOWN OF LAC DU FLAMBEAU
(Grievance of Albany Potts, Jr.)
The above-captioned parties, herein "Union" and "District", are signatories to a
collective bargaining agreement providing for final and binding arbitration. Pursuant
hearing was held in Lac du Flambeau, Wisconsin, on March 18, 1998. The hearing was
transcribed and both parties filed briefs that were received by May 19, 1998. Based upon
entire record and the arguments of the parties, I issue the following Award.
The parties have agreed to the following issue:
Did the District violate the contract when it failed to award the
Mechanic position to grievant Albany Potts, Jr., and, if so, what is the appropriate remedy?
Grievant Potts, a Custodian, has been employed by the District since August, 1993.
In January, 1997, the District posted for a newly-created Assistant Maintenance
Mechanic position (Joint Exhibit 3). Potts and other applicants applied for said position, but
the District chose not to fill it at that time because it was concerned about a building
referendum that was then pending. The District in October, 1997 subsequently reposted a
slightly revised Assistant Maintenance Mechanic position (Joint Exhibit 4). Neither Potts
anyone else in the bargaining unit applied for said position. The District thereafter
for said position externally, at which time Potts and about 10 other applicants expressed
interest. After Potts was interviewed on December 13, 1997, (unless otherwise stated, all
dates hereinafter refer to 1997), the District passed over him and awarded said position to
external applicant John Snow who had been working as a temporary fill-in employe for about
ten (10) months.
Potts testified that he did not believe he had to reapply for the internally-posted
October, 1997, job posting because his prior application for the earlier January, 1997 posting
was still on file; that he immediately told William F. Cross, Director of Buildings and
Grounds, that he was interested in said position once Cross told him that he had to reapply
anew; and that he in fact is qualified for the Assistant Maintenance Mechanic position. He
also said that the District never tested him for any of the qualifications listed for said
that the interviewers on December 13 never asked him about his qualifications; and that he
wants said position which pays about the same as his current position - because it
hours than his current job.
Executive Secretary Arlene Caudle testified that the October, 1997 posting was
posted throughout the school; that Potts never asked her for an application so that he could
formally apply for said position; that she was told by Cross after the posting's closing date
that Potts was going to be interviewed for said position; and that all the job applicants were
asked the exact same questions on December 13.
District Administrator Richard Vought testified that Potts never submitted a written
application for said position; that he and others interviewed Potts for the position on
December 13, at which time Potts was asked a number of technical questions relating to his
ability and qualifications; that Potts answered some of the questions incorrectly; that Potts
not score among the top three applicants; and that Potts was unqualified for the position. On
cross-examination, Vought acknowledged that the District before the instant hearing never
claimed that Potts was unqualified.
Director of Buildings and Grounds Cross testified that he told Potts around December
12 he would have to tell the office that he was interested in the disputed position; that he
subsequently interviewed Potts and the other applicants on December 13; that Potts during
said interview was unable to answer questions relating to ballasts and three phase electrical
motors; that Potts then stated he would learn the position; and that Potts is unqualified for
said position. Cross added that Snow who was awarded the position over Potts
is well-versed in working with ballasts.
On cross-examination, Cross said that applicants were not formally tested because he
assumes that employes would not lie about their past in their job applications; that as far as
he knows, Vought then never claimed that Potts was unqualified; and that he did not know
that the contract provides for a 30-day trial period.
Potts on January 5, 1998, filed a grievance over the District's failure to award him
said position, hence leading to the instant proceeding.
POSITIONS OF THE PARTIES
The Union argues that Potts' application "satisfied the contractual provisions of the
collective bargaining agreement. . ."; that the District thereafter properly interviewed him
considered him to be "a viable candidate"; that Potts is qualified for the Assistant
Maintenance Mechanic position; and that the District "did little to determine or challenge
those qualifications during the hiring process." As a remedy, the Union asks that Potts be
awarded said position.
The District contends that the grievance should be denied because Potts "failed to
comply with the posting and make his desires known to the District. . ."; because it is unfair
to require the District "to search its files for prior applicants. . ." who do not formally apply
for subsequent job postings; because Article 11, (A), of the contract gives it the right to
establish job qualifications; and because Potts was not as qualified as Snow.
This case largely turns on Article XV, entitled "Vacancies and Reassignments",
states in pertinent part:
A. All vacant or new positions recognized under Article I
Recognition of this
Agreement shall be posted in a conspicuous place internally for three (3) working days prior
to being posted externally. The job posting shall set forth the job title, pay range, work
location, and the
name of the person to whom the application is to be returned to.
months, a copy of all postings will be sent to the unit director.
B. All present bargaining unit
employes shall be given the right to be reassigned to any
new or vacant position within their area of assignment as described in Article XIV,
in Force, paragraph A), provided they are qualified. (Emphasis added).
C. An employe who voluntarily seeks
reassignment or applies for a new or vacant
position within their area of assignment shall be given a training and qualifying period of
(30) days for the purpose of determining whether said employe can meet the job
requirements. If at any time during this period the employe and employer mutually
the employe is not qualified to perform the job or the employe does not want the job, such
employe may return to his/her former position without loss of seniority or benefits. Upon
completion of said qualifying period, the employe shall be paid at the new job rate, taking
consideration district experience, commencing from the first day of reassignment.
Employes may apply and shall be
considered for those positions which are outside
their area of assignment. If selected by the employer to transfer to an assignment outside of
their area of assignment, such employe shall not lose credit for district experience.
. . .
The Union points to the aforementioned underlined language in
Section B in support of its
claim that Potts should have been awarded the Assistant Maintenance Mechanic position
because it is "clearly in the grievants' area of assignment as described in Article
However, even if that is true, Potts still must satisfy the second part of this proviso,
i.e., that he is "qualified". The Union asserts that Potts was entitled to a 30-day trial period
to determine his ability and qualifications under Section C.
I disagree. The trial period kicks in only if an employe is otherwise "qualified". To
claim otherwise is to in effect totally disregard that part of Section B which contains this
requirement. In this connection, I credit Cross' testimony that Potts during his December 13
interview was unable to correctly answer the questions asked and that he said that he would
learn the position. I credit Cross' additional testimony that it can take up to 6-8 months for
someone to be fully trained as the Assistant Maintenance Mechanic;
that it would have taken more than 30 days to properly train Potts; and that Snow in
had ten months of actual on the job experience in performing some of the Assistant
Maintenance Mechanics' position, which is why he selected Snow over Potts.
Given all this, I conclude that the District properly passed over Potts when he failed
to score among the top three job applicants.
In light of the above, it is my
That the District did not violate the contract when it failed to award the Assistant
Maintenance Mechanic position to grievant Albany Potts, Jr.; his grievance therefore is
Dated at the City of Madison, Wisconsin this 31st day of July, 1998.
Amedeo Greco, Arbitrator