BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WINNEBAGO COUNTY HIGHWAY
EMPLOYEES UNION, LOCAL 1903, AFSCME, AFL-CIO
Mr. Richard C. Badger, Staff Representative,
Wisconsin Council 40, AFSCME, AFL-CIO, P.O.
Box 2825, Appleton, Wisconsin 54913, appearing on behalf of Winnebago County Highway
Department Employees Union, Local 1903, AFSCME, AFL-CIO, referred to below as the
Mr. John A. Bodnar,
Winnebago County Corporation Counsel, Winnebago County Courthouse,
P.O. Box 2808, Oshkosh, Wisconsin 54903-2808, appearing on behalf of Winnebago
referred to below as the County or as the Employer.
The Union and the County are parties to a collective bargaining agreement which was
at all times relevant to this proceeding and which provides for the final and binding
certain disputes. The parties jointly requested that the Wisconsin Employment Relations
appoint an Arbitrator to resolve a grievance filed on behalf of Michael Spanbauer, who is
below as the Grievant. The Commission appointed Richard B. McLaughlin, a member of its
Hearing on the matter was held on August 18, 1999, in Oshkosh, Wisconsin. The hearing
transcribed. The parties filed briefs and a reply brief or a waiver of a reply brief by
The parties stipulated the following issues for decision:
Did the County violate the contract when it did not award the
Gradall Foreman position to
If so, what is the appropriate remedy?
1. The management of the Winnebago County Highway
(including the Landfill), Solid Waste,
Airport and Parks Departments and the direction of the employees in the bargaining unit,
but not limited to, the right to hire, the right to assign employees to jobs and equipment in
with the provisions of this Agreement . . . shall be vested exclusively in the County.
. . .
. . .
The County shall determine the qualifications of the applicants
and in the event that qualifications
as determined by the County are relatively equal, the applicant with the greater departmental
shall be selected to demonstrate his ability to perform the job during a trial/training period of
than thirty (30) days actual performance on said job . . . If said employee is deemed
qualified by the
County, he shall be assigned to fill the vacancy. Should such employee not qualify within
aforementioned thirty (30) day period or should the employee desire to return to his former
at any time within the said thirty (30) day period, he shall be reassigned to his former
loss of seniority. In this event, the applicant next in line of seniority with the department
given preference pursuant to the above procedure until the vacancy is filled. Should no
within the department apply or qualify for the vacant position, employees in the three
departments who have signed the posting shall be eligible for such vacancy in accordance
above procedures using bargaining unit-wide seniority as the determining factor should
be relatively equal. Should no bargaining unit employee apply or qualify for the vacancy,
may fill the position from outside the bargaining unit.
QUALFICATIONS DISPUTES: If there is any
difference of opinion as to the qualifications
of an employee, the Union may take the matter up for adjustment through the grievance
. . .
As stipulated by the parties, the grievance, on its merits, poses a single issue.
however, the single issue arose from two separately filed grievances. The first grievance
the "Employee's Name" as "Class Action," and puts the "Circumstances of Facts" thus:
Management first sees who signs the posting and decides whether
or not to have a test. Then
management writes the test instead of having an impartial party write and administer the test.
The grievance form states the "corrective action desired" thus:
Do not give test for any job and let the senior man have the job.
Make employee whole.
The second grievance form names the Grievant for the "Employee's Name," and states
"Circumstances of Facts" thus:
The Gradall Foreman retired and his job was posted. The
grievant, who has 20 years at the
Highway Department and 15 years as a foreman signed the posting. There was a test and an
interview for the position. The grievant and five other employees took the test. An
given to four of the six employees. The job was given to the less senior employee. When
previous foreman was awarded the job it was given to the senior man with no test or
that time Ray Grigar, Highway Commissioner, and Supervisor Joel Rasmussen stated that
on the senior man would get the job regardless of qualifications.
The second grievance form states the "corrective action desired" thus: "Give the
the job or at least his 30 days to try the job and make employee whole."
The position at issue is Gradall Foreman. The County posted the position on
1998 (references to dates are to 1998, unless otherwise noted). The posting describes the
. . .
1. Supervises operation of
equipment and employees on ditching projects, culvert placement and
2. Sets grades of ditches and
3. Coordinates project
operations for pickup, distribution and disposal of materials to ensure
efficient operations with minimal down time.
4. Prepares records and reports
that document time, materials and equipment for charge-backs
to the towns and state.
5. Performs snow removal
during winter months on an as needed basis.
6. Performs other related
duties as assigned including general labor such as shoveling, snow
fencing, brush clearing, etc.
1. Ability to supervise and
maintain effective working relationships with fellow employees.
2. Ability to organize complex
operations that require equipment, materials and manpower to
be coordinated appropriately.
3. Ability to operate surveying
equipment used to establish grades.
4. Thorough knowledge of the
operation of the gradall and other highway equipment needed for
ditching and setting of culverts.
5. Ability to fill our records
and reports accurately and appropriately.
6. Thorough knowledge of
traffic regulations and work related safety practices.
7. Ability to understand and
carry out instructions.
8. High school degree or its
equivalency, plus related experience preferred.
9. Possession of a valid Class
A or Class B Commercial Driver's License.
1. Ability to perform strenuous
or heavy manual labor.
2. Ability to work in
continuous exposure to extremes in temperature and inclement weather.
. . .
Six employes signed the posting. The Gradall Foreman typically oversees a
although the size or complexity of the job may require the use of additional employes.
After the posting period ended, the County directed interested applicants to take a
test. The written test consisted of the following questions:
1. Name the 6 colors used in utility locates and the category
2. What is the recommended distance
from the located line that requires hand digging?
3. What is the purpose of apron end
walls and what type of culvert end is NOT suitable for an
4. Name some situations when a
"dimple" band would be used instead of a standard ribbed band.
5. When replacing a cross culvert,
why is it important to have tapered walls?
6. If you have to install 2 cross
culverts side by side on a 60 degree skew, how would you place
them? (Illustrate locations on drawing)
7. Describe a bench mark and how it
applies to our operation.
8. List some examples of erosion
control techniques in ditches.
9. The drawing below is a profile of
established driveway culverts not at the proper grades in
a relatively flat ditch. You have to ditch this for drainage without changing the culverts.
fall line you will use and identify the grades you will use on the line below.
10. In this scenerio (sic), identify the
grades to solve this drainage problem. WRITE IN
THE NEW GRADES.
11. You need to excavate a wide
shoulder to make a lane addition for a right turn lane.
It requires 1 foot of gravel and 3 inches of blacktop. Using the grades given, what depth
cut this to achieve the proper slope? FILL IN THE BLANKS
12. Describe, in order, the process for
replacing a cross culvert on a state or county road
with substantial traffic requiring a detour.
Ray Grigar, while employed by the County as its Highway Commissioner, asked Joel
Highway Maintenance Superintendent, to prepare the written test. Rasmussen did so in
with Gary Demler (references to Gary Demler will be by his full name, while references to
will be by last name only), John Haese and Elizabeth Davey. Gary Demler once served as
Foreman for the County before moving into a non-unit supervisory position. Haese was
successor as Highway Commissioner. Davey was, at the time of the test's creation and
administration, the County's Assistant Human Resources Director.
Each applicant who signed the posting took the written test at the same time and at
location. Each applicant took the test in an individual room, isolated from the other
Applicants were not permitted to ask questions about the test. The County considered the
generate eighty-six possible points. The highest rated applicant received a score of sixty.
highest score was forty. Two other applicants received a score of thirty. One other
twenty-five, and the lowest rated applicant scored nine. Bill Demler received the score of
Grievant was one of the applicants who scored thirty.
After scoring the test, the County offered each applicant an interview. The applicant
the lowest score declined the interview. Each applicant who accepted an interview received
County interviewed each applicant using a panel composed of Haese, Rasmussen and Davey.
panel asked each applicant the following questions:
1. Why are you interested in the Foreman position?
2. How familiar are you with
the operations of this crew? Have you worked on or with this
crew in the past. Have you operated a Gradall or similar heavy equipment?
3. What is your experience in
supervising others? Have you supervised work crews in the past
(seasonals?, outside work activities?, previous employers?).
4. If you were assigned a
project and as the work proceeded you realized that something was
not working out as you expected or were told it would work, what would you do at that
5. Would contacting a patrol
superintendent (always) be your first option? What if you were
confident in your ability to solve the problem? What situations would you feel comfortable
in proceeding along without consulting a supervisor? Give me an example.
6. As a foreman, if someone
on your work crew refused to complete a task assigned to him and
there was not a safety or legal question involved, what would you do?
7. What do you see yourself
doing in five years? Do (sic) have goals you hope to accomplish
in your career? School? Computers?
8. What experience have you
had keeping detailed records? Describe your ability with figures.
Do you balance your own checkbook?
9. What makes you the best
candidate for this position?
Each interviewer used this slate of questions from a pre-printed form. The form
included the written
test score of each applicant.
The County awarded the Gradall Foreman position to Bill Demler, who has less
seniority than the Grievant. The balance of the background is best set forth as an overview
The Grievant worked for the County as a Laborer until being awarded the position of
Coat Foreman. He has served in that position for fifteen years. As Seal Coat Foreman, the
oversees the work of roughly twelve employes. He must order materials for the crew and
The Grievant has worked as a member of the Gradall crew, particularly to cover for
of members of that crew. He has not, however, operated the Gradall. He has experience
culverts and working on ditch and drainage projects, including large and complex projects.
taken a class offered by the County Surveyor in reading a level, and used laser-based levels
in grading the parking lot at the old Highway Department Offices.
The County has, for some time, used two employes serving in the position of Gradall
Foreman. One of those employes retired, creating the vacancy prompting the December
That employe had held the post for roughly four years, after the County awarded him the
after posting it. The Grievant also signed that posting, and felt he should have
position at that time. When he did not receive the position, he asked Highway
management about it, and was informed that the senior employe would receive the position
in the future. Thus, when he signed the December posting, the Grievant felt that, as the
applicant, the position would be his.
More specifically, the Grievant stated that his experience as Seal Coat Foreman met
and second "General Qualifications" of the December posting. His experience on the job and
landscaping position he fills during off-work hours met the third listed qualification. His
work on the
Gradall crew meets the fourth stated qualification, and his lack of experience on the Gradall
be held against him, since the County controls such assignments. His experience meets the
five qualifications, as well as the two listed "physical qualifications."
The requirement of a written test came as a shock to the Grievant. No test was
the retiring Gradall Foreman at the time he was awarded the position. The administration of
and the interview process convinced the Grievant that the process may have been skewed in
favor. More specifically, the Grievant stated that he did not think it appropriate to ask
Question 1 of the written test, since the colors are stated in printed material carried on
and since the County did not permit applicants the opportunity to study or to memorize such
of Gradall work. He found the printed scenario underlying Question 10 confusing and
permitted to ask clarifying questions. Beyond this, he noted that Demler has, for the past
three years, been granted more opportunity to work with the Gradall.
Rasmussen has been Maintenance Superintendent for roughly five years and spent the
four years of his County service as Gradall Foreman. In his opinion, the most significant of
"general qualifications" stated on the December posting, in the order of their importance, are
1 and 2. Grigar asked him to develop the test for the December posting to avoid past
More specifically, Grigar felt that awarding the position based on seniority had resulted in
a "learning curve" for the foreman and required more oversight of the foreman than Grigar
Rasmussen created an initial draft of the test, then submitted it to Gary Demler and
them to critique. The major part of the drafting process consisted of isolating past on-the-job
problems, and specifying them to determine if the applicants could recognize and solve them.
test had no predetermined passing grade. Question 1, in Rasmussen's view, was worth
because a Foreman should not spend time running back and forth to his truck to determine
locates. Question 10, in his view, reflected the reality of the job. Many situations are not
self-explanatory and demand on the site interpretation. The County Surveyor will sometimes
isolate on-the-job problems for the Gradall crew, but other problems must be resolved on site
by the crew. The
Grievant's answer to Question 10 failed to solve the depicted problem by routing drainage
the natural flow of a waterway depicted on the illustrated scenario.
Rasmussen noted that the County has not, in the past, tested for the position of
Foreman, but has tested for other positions such as Paving Foreman and Shop Welder.
Prior to his retirement, Grigar informed Davey to post the Gradall Foreman position.
anticipated the position would generate a large number of applicants, and he wanted to make
County could distinguish between them and select the most qualified person possible. In
position in the past, Grigar had, in Davey's view, over-reacted to a prior grievance by
Gradall Foreman position based on seniority. Doing so had produced on-the-job problems in
Grigar's view. Grigar felt that a Foreman should not rely any more than absolutely
necessary on a
Superintendent's or the Commissioner's assistance in addressing job-site problems.
Davey played no role in drafting the test. She reviewed it, however, prior to its
to determine if it was job related and objective. Davey felt that Demler was by far the best
particularly in the interview process. She felt his answers demonstrated leadership and
problem-solving skills. The Grievant surprised Davey during the interview by responding to
Questions 4, 5
and 6 by indicating he would routinely consult a Superintendent. On the interview, she
to three applicants ahead of the Grievant. Haese made the ultimate hiring decision, but
testified she felt it was the right choice.
She noted she did not consult personnel records as part of the hiring process. That
was, in her view, predictive rather than evaluative.
Haese became Commissioner in January of 1999. He has prior experience as
Commissioner of Calumet County and as a unit employe of the Manitowoc County Highway
Department. He served Manitowoc County as a grade crew foreman. Manitowoc County,
Winnebago County, uses a back hoe, not a Gradall, on its grade crew.
Haese was not yet Commissioner when Rasmussen created the test. Haese noted that
agreed with Grigar's decision to test applicants. He was given the opportunity to critique the
while it was in draft form. He felt the test was job related and fair. Manitowoc County has
and, in Haese's opinion, has done so successfully. Haese did not know either Demler or the
prior to the testing process.
Haese reviewed the grading of the written tests and concluded they had been graded
He considered Demler the best interviewee. Demler showed, in Haese's estimation, good
knowledge and a willingness to make on the spot decisions. The Grievant, in his
failed to give detailed answers and showed too great a willingness to turn to
supervision to resolve on-the-job problems. Considering the test, the interview and
experience, Haese concluded Demler was the best candidate for the position. Haese noted he
ranked three applicants ahead of the Grievant.
Further facts will be set forth in the
The Union's Initial Brief
The Union contends that, as processed by the parties, the grievance subsumes three
distinguishable issues. The first is whether the Grievant had "a reasonable expectation that
foreman position would be awarded based on seniority and past experience rather than a
second is whether "the test and the circumstances under which the test was administered"
The third is whether the Grievant's qualifications were relatively equal to Demler's.
The evidence establishes that the "union had been advised by the County that it
fill foreman positions . . . by seniority" prior to the posting of the Gradall Foreman position.
this, the Grievant reasonably assumed he was next in line for the posted position. That the
did not advise applicants that the position would be tested for is "not fair" to the Grievant,
thus denied "the opportunity to study or otherwise prepare for the test."
Beyond this, "the test itself, the manner in which it was given, and the interview
unfair and prejudicial to the grievant." The unfairness of the test is exemplified by the
concerning utility locates. The question presumes knowledge that could only be expected of
incumbent on the Gradall crew or through study. The County, however, did not permit
to study, and thus skewed the test toward incumbent crew members. That the County
permit applicants to ask questions about the test highlights that it was not administered fairly.
non-standardized format of the test underscores this point. That the County included test
the interview sheets highlights that testing flaws continued into the interview process. No
troubling is that the questions placed before the applicants permitted too many subjective
creep into the evaluators' view of the applicants.
The Union notes that the grievance does not question the County's "right to
qualifications," but argues that "those qualifications should be directly related to the job."
Contending that "(t)he fairest way to define the essential qualifications is to use those listed
job posting," the Union concludes that the Grievant "is relatively equal to (Demler) overall,"
that the Grievant's "seniority should have prevailed." More specifically, the Union
a review of the relevant portions of the Gradall Foreman job
description establishes that the Grievant and Demler "are equally matched" regarding
all but four
criteria. Of those four, the Grievant's "fifteen years of proven experience" as a foreman
"is clearly superior" on two of those four. Of the remaining two, Demler's experience on
crew establishes Demler's greater experience. That experience is tempered, however, by the
Grievant's personal experience on the Gradall crew. Against this background, the Grievant's
qualifications must be considered at least "relatively equal" to Demler's. It follows that
should have ruled the day."
The Union concludes that the Grievant should be awarded the position of Gradall
or no less than "the 30 day trial period provided for under the contract to prove that he can
the responsibilities of the gradall foreman position."
The County's Initial Brief
After a review of the evidence, the County contends that arbitral authority establishes
employer "generally has the right to control promotions, except as limited by the Collective
Bargaining Agreement." Beyond this, such authority establishes that "regarding qualification
disputes, the burden of proof clearly falls upon the Union to prove either arbitrariness,
or bad faith before the job selection made by Management is reversed by the Arbitrator."
More significantly here, the County argues that winnebago county, ma-3633, 3707
(bielarczyk, 2/86) "is almost identical in factual situation to the present case." In that case,
the fact that (the Grievant) was the least senior of the three applicants" for "the position of
Foreman . . . he was awarded that position by the County on the basis that he was intimately
with the entire sealcoating operation." The County used the fact that the Grievant had
filled in on
a temporary basis as Seal Coat Foreman as a reason to award him the position. The facts
state no reason to depart from the rationale that served the Grievant well in the past.
Arbitral precedent will not support imposing training requirements on the County.
cannot be considered "a minimum qualifications or minimum ability clause." Past County
with awarding Foreman positions relying on seniority was adverse, and resulted in more
training than the County considers productive. Against this background, the Union cannot be
considered to have met its burden of proving arbitrary, discriminatory or bad faith conduct
County in filling the Gradall Foreman position. In fact, the evidence supports the County's
The Grievant has not operated the Gradall machine, and his test score "was significantly
that of the test score of Mr. Demler."
Nor can the test or its administration be faulted. Test questions "related to basic
and mathematical skills." Beyond this, the interview process afforded applicants the
demonstrate their skill. That Demler, unlike the Grievant, chose to respond to
problem solving questions by indicating what, other than referring the problem to the
he would do to solve the problem cannot be held against Demler. In the absence of evidence
believe any County personnel involved in the hiring decision had prejudice against the
is no persuasive basis to overturn the County's decision.
In the event a contract violation is found, the County contends that "the Arbitrator's
should be limited to ordering that (the Grievant) be provided a trial/training period of not
thirty (30) days." No "back pay should be awarded in this matter given the fact that the pay
the Gradall Foreman position and (the Grievant's) present position as Sealcoat Foreman are
The County concludes, however, by stressing that there has been no contract violation and
grievance before the Arbitrator in this matter (should) be denied."
The Union's Reply Brief
The Union "does not dispute that the parties arbitrated a similar case approximately
years ago," but contends that the "difference between that case and the instant one is that (the
Grievant) is much more qualified to be a gradall foreman" than was the senior applicant for
position disputed in the prior award. Here, the Grievant has prior experience "as the gradall
and had other experience with grading." Since he "met the basic qualifications to become
foreman," he should have been awarded the position. That the County knew of his interest
position three years ago, yet altered the means used to fill the position without notice is, at a
minimum, questionable. A review of the evidence manifests that only Demler could have
County's newly established criteria. This sort of "cherry-picking" must be viewed as
In any event, the labor agreement "provides for a trial period." However the
Demler's qualifications are evaluated, the Grievant should have received the trial period to be
"to succeed or fail on his own." The Union concludes by requesting that the Grievant be
the Gradall Foreman position or be "given the 30 day trial period provided for under the
prove that he can handle the responsibilities of the gradall foreman position."
The County's Reply Brief
The County decided not to file a reply brief.
The stipulated issue broadly questions whether the County violated the labor
awarding the Gradall Foreman position to Demler. Resolution of the issue is, however,
in scope. Article 10 governs the grievance, and resolution of the stipulated issue demands its
be applied to the December posting process. That portion of Article 10 relevant to the
set forth above.
The parties do not dispute that the Grievant is a qualified applicant for the position of
Foremen. Thus, Article 10 must be applied to a competition between qualified employes
same department as the posted position. The first sentence of the cited portion of Article 10
establishes that the County addresses a competition between qualified departmental applicants
determining their qualifications. Once this individual determination is made, a thirty-day
"trial/training period" is awarded to the most qualified applicant, unless an applicant "with
departmental seniority" has qualifications "relatively equal" to the most qualified applicant.
case, seniority prevails, and results in the senior applicant receiving the on-the-job
In a competition between qualified intra-departmental applicants, Article 10
competitive process beyond the determination of minimal qualifications to perform the posted
Thus, competing applicants may or may not each far exceed the minimum threshold of
competence. Where there is competition between qualified applicants, Article 10 demands a
comparison of the qualifications of each applicant, not a comparison of any single applicant
minimum qualifications for the job. Under Article 10, departmental seniority governs only
competing individuals possess "relatively equal qualifications." The grievance questions,
whether the Grievant could be considered qualified to perform as Gradall Foreman, but
Grievant has qualifications "relatively equal" to Demler's.
As the Union notes, this determination demands an examination of the County's
of the applicants. Regarding this determination, I do not write on a clean slate. In a prior
award between these parties, Arbitrator Bielarczyk noted:
Herein both parties acknowledge the County has the right to
determine qualifications of
applicants for a posted position and both parties acknowledge that the County can not be
unreasonable or discriminatory in its determination of an applicant's qualifications. ma-3633
ma-3707 at 6.
The governing contract language has not changed since this award, and I can see no
reason to apply a standard other than the agreed-upon standard noted in the prior award.
There is no persuasive evidence that the County acted in a discriminatory fashion. It
noted that Demler shares at least a last name with one of the creators of the written test.
is silent on whether they share anything else. Nor can Demler's past assignments to fill-in
Gradall be considered evidence of discrimination. The Grievant has, in the past, been
assigned to the
Gradall crew, thus being placed at an advantage to applicants other than Demler for the
posting. Beyond this, the Grievant's experience as fill-in for the then incumbent Seal Coat
worked to his advantage in securing the Seal Coat Foreman position when it became vacant.
in part on that experience, the County awarded him that position over a more senior
applicant, and successfully defended its action before Arbitrator Bielarczyk. It is not
apparent how the type of experience that brought the Grievant his current position can
considered evidence of
discrimination in this case. In any event, it is undisputed that Haese selected the
when he was new to the job. He had no prior knowledge concerning Demler or the
is no persuasive evidence to indicate any other supervisor communicated, or would
Haese a preference for Demler or against the Grievant.
Nor can the County's conduct be characterized as capricious. The evidence
County management shared a good faith belief that past experience awarding the Gradall
position based on seniority had not produced the desired result. Grigar and his management
that the County needed Foremen who did not require extensive training and who were
acting independently. The County created the written test and the interview process to
problems. The written test reflects actual problems confronted by its Gradall Foremen. The
acted in good faith to avoid past mistakes. This cannot be characterized as capricious.
The stipulated issue thus focuses on the disputed reasonableness of the County's
determination of qualifications. As noted by the Union, this demands a review of the means
by the County to make the determination. The Union questions whether the test was a
means and whether it was reasonably administered.
There is no contention that the County lacks the contractual authority to use a test.
Article 1 nor Article 10 bars County use of a test or an interview, and each appears
to authorize their use. In any event, it is apparent that the County has tested for other
without challenge. The Grievant questions whether the County offered him the position after
denied him a prior placement as Gradall Foreman based on seniority. This ignores that he
his current position over a more senior departmental applicant. Beyond this, it ignores that
10 does not award positions based on seniority alone. Even if statements were made to the
that his turn was coming, an arbitrator's authority flows from Article 10. If any statement
between a manager and a unit employe was enforceable standing alone, the contract would
meaning, and there could be no unit-wide standards. If the labor agreement is to be
modified, it must
be by the County and the Union, not by individual employes or managers.
While the force of the Union's arguments regarding the test and the interview must
acknowledged, the evidence does not establish that they were unreasonable as created or as
administered. For example, the Union's arguments cast doubt on the worth of Question 1.
question would appear to favor an incumbent on the Gradall crew, and would appear to be a
easily memorized by a qualified applicant. Like the balance of the written test, however, the
is objective and job-related. Beyond this, the Union's critique of the potential bias of
toward applicants with Gradall crew experience is weakened by the fact that the Grievant has
experience, and seeks to advance his experience as a basis for preferring him over other
As noted above, the County created the written test to address problems encountered
Gradall Foremen. Presumably, the ability of an applicant to recognize and to effectively
problems directly addresses problem-solving ability. The County created the test, and this
test to the assertion of bias noted in the grievance form. The assertion, however, has no
evidentiary support. The hiring decision is the County's, and no outside testing service could
to the process the experience and knowledge of personnel familiar with the work. Beyond
of outside testing services does not, standing alone, assure unbiased selection.
Nor does the record establish the County administered the test unfairly. The lack of
pointed to by the Grievant was common to all applicants. No applicant was permitted to ask
questions while the County administered the test. Applicants took the test alone, and the
scored each test individually. The issue under Article 10 is not whether the test was the best
of assessing qualifications. The issue is the reasonableness of the test and its administration.
evidence affords no persuasive basis to find it unreasonable. The process put no applicant at
Interviews are inevitably subjective, but are commonly used. The Foreman position
more closely with non-unit managers than do other unit positions. It is neither surprising nor
improper that management would want to interview applicants for the position. The
of the applicants were common to each applicant, and permitted the Grievant the opportunity
emphasize his experience as a foreman. The Union persuasively contends that posting the
scores on the interview question form was ill-advised. Standing alone, however, this cannot
the validity of the interviews. The interviews attempted to isolate the problem solving ability
County was seeking. The Grievant's choice to emphasize his willingness to bring
job-site problems cut directly against what the County was seeking. In another context, this
could have assisted the Grievant. For better or for worse, this is part of the risk of
jobs. Demler's responses tied more closely to the skills the County specifically sought. This
be held against the County.
In sum, the creation and administration of the test cannot be considered unreasonable.
leaves the County's conclusion that Demler's and the Grievant's qualifications were not
equal. The Grievant's written test score placed him tied for third among six applicants, with
total one-half of Demler's. Haese and Davey rated two to three of the five applicants who
an interview ahead of the Grievant. The County's conclusion that this failed to establish
equal" qualifications cannot be dismissed as unreasonable.
Before closing, it is appropriate to tie this conclusion more closely to the parties'
The discussion stated above should not be read to imply the grievance failed to pose
The Union's argument that the Grievant had a reasonable expectation that the Gradall
Foreman position would be awarded based on seniority poses a more troublesome problem of
inter-personal communication than of contract interpretation. If, after filling the vacancy
prior to the
December posting, management personnel told the Grievant that he would be next, then that
communication was ill-advised at best. Article 10 establishes an open competition for
based on qualifications and seniority. It cannot be interpreted to permit the selection of an
prior to a posting. For similar reasons, it cannot be said that the County unfairly changed
of determining the qualifications for a posted position. The reference point to assess
is Article 10, not an individual fact situation regarding a posting. The Grievant earned the
Foreman position because his selection ahead of an employe with greater seniority complied
Article 10. That the County chose the senior applicant in a prior posting of the Gradall
cannot obscure that seniority is only one of the criteria for selection stated in Article 10. A
placement of a Gradall Foreman based on seniority can no more establish a binding practice
the single departure from seniority that placed the Grievant as Seal Coat Foreman.
The most troublesome issue concerning the selection process is whether it is skewed
of applicants whose prior placement, on a temporary basis, gives them an advantage over
applicants. This issue cannot, on this record, be considered determinative without ignoring
parties acknowledge experience has, and should, play a role in filling Foreman positions.
background, the selection process at issue here was not biased for Demler or against any of
remaining applicants. It cannot be characterized as unreasonable, and Demler's selection
be set aside as a violation of Article 10.
The County did not violate the contract when it did not award the Gradall Foreman
to the Grievant.
The grievance is, therefore, denied.
Dated at Madison, Wisconsin, this 9th day of December, 1999.
Richard B. McLaughlin, Arbitrator