BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
OFFICE AND PROFESSIONAL EMPLOYEES
INTERNATIONAL UNION, LOCAL 95
WISCONSIN RAPIDS SCHOOL DISTRICT
Shneidman, Myers, Dowling, Blumenfield, Ehlke, Hawks & Domer, by
Attorney Bruce F. Ehlke, appearing on behalf of the Union.
Melli, Walker, Pease & Ruhly, S.C., by Attorney James K.
Ruhly, appearing on behalf of the District.
Office and Professional Employees International Union, Local 95, hereinafter
the Union, and the Wisconsin Rapids School District, hereinafter referred to as the District,
parties to a collective bargaining agreement which provides for the arbitration of disputes
thereunder. The parties mutually agreed to the undersigned as the arbitrator to hear and
grievance over the meaning and application of the terms of the agreement. Hearing was held
Wisconsin Rapids, Wisconsin, on July 19 and August 27, 1999. The hearing
was transcribed and the
parties filed briefs and reply briefs, the last of which were filed on December 14, 1999.
The grievant has been employed by the District since September 19, 1991.
employment as a Noon Duty Aide at Grant Elementary School and on February 6,
transferred to the position of Noon Duty Aide at Lincoln High School. As Noon Duty
grievant works 12.5 hours per week. In 1996, the District created the position of Attendance
Supervisory Aide at Lincoln High School and the grievant applied for the position but it was
to Jon Russell. When Russell was absent, the grievant substituted for him in the position. In
1998, Russell took a teaching position and the grievant filled the Attendance Supervisory
position for the rest of the school year as a substitute. In May 1998, the District posted the
and the grievant applied for it as did a number of other individuals including Jon Russell.
associate principals at Lincoln High School, Rod Henke and Gerald Fitzgerald, interviewed a
of the applicants, including the grievant and Jon Russell. The District awarded the position
Russell, who performed in the position for two days at the beginning of the 1998-1999
and then took another position with the District. The grievant again substituted in the
in August 1998, the District again posted the position. The grievant and other individuals
the position, including a Dawn Henke, the wife of Rod Henke's cousin. Henke recused
interviewing the applicants. Associate Principal Fitzgerald and Helen Novak, a Supervisory
Lincoln High School in charge of in-house suspension, interviewed five or six candidates but
grievant. The District selected Tammy Mientke, a Noon Duty Aide at Mead Elementary
October 12, 1998, the grievant filed a grievance alleging a violation of the agreement
over her non-selection for the position. The grievance was denied and appealed to the instant
The parties were unable to agree on a statement of the issues. The Union frames the
Did the Wisconsin Rapids Public Schools breach its collective
bargaining agreement with the
Office and Professional Employees International Union, Local 95 and in a particular Section
the collective bargaining agreement when it failed to appoint Linda Bulloch to fill the
Supervisory Aide position in October of 1998?
If so, what is the appropriate remedy?
The District frames the issues as follows:
1. Is a determination by the School
District as to the "most qualified applicant" for purposes
of Section 1304-B of the agreement subject to review by the Arbitrator under Article III of
agreement and the past practices of the parties in implementing Section 1304-B?
2. If issue #1 is answered in the affirmative and such a
determination is subject to review by
the Arbitrator, what is the standard of review of that determination under the agreement?
3. If issue #1 is answered in the
affirmative and the Arbitrator establishes a review standard
which permits the Arbitrator to determine whether the District in fact selected the "most
applicant," has the grievant established that she was the most qualified applicant for the ASA
she sought in September, 1998?
4. If the Arbitrator reaches issue #3 and
answers in the affirmative, what is the appropriate
The undersigned frames the issues as
1. Is the District's determination of the
"most qualified applicant" under Section 1304-B of
the agreement subject to review by the Arbitrator?
2. If so, what is the appropriate standard
3. Did the District violate Section 1304 of
the parties' agreement by not selecting the grievant
for the position of Attendance Supervisory Aide?
4. If so, what is the appropriate remedy?
Section 301 General
Except as otherwise specifically provided in
this Agreement, the Board retains all rights and
functions of management and administration that it has by law and the exercise of any such
functions shall not be subject to the grievance procedure.
Section 302 Management Rights
Without limiting the generality of the
foregoing Section 301, the Board's prerogatives shall
302.1 The management and
operation of the school and the direction and arrangements of all
the working forces in the system, including the right to hire, suspend, discharge, discipline
302.2 The right to relieve
employees from duty for poor or unacceptable work or for other
. . .
302.6 The determination of the size
of the working force, the allocation and assignment of
work to employees, the determination of policies affecting the selection of employees, the
establishment of quality standards, and the judgement of employee performance.
302.7 The maintenance of discipline
and control and use of the Board's property and facilities.
302.8 The determination of safety,
health and property protection measures where legal
responsibility of the Board or other governmental unit is involved.
. . .
PROMOTION, TRANSFER AND CHANGE OF ASSIGNMENT
A promotion is hereby defined as a move
from a lower group classification to a higher group
classification. An employee who is promoted to a higher group classification shall receive
wage rate less twenty (20) cents per hour during the probationary period, but not less than
rate of pay. An employee who is promoted shall maintain his step classification and
complete a thirty
(30) working day probationary period. In the event an employee does not successfully
probationary period, or if the employee chooses to return to the employee's former position,
employee shall be returned to the former position without any loss of seniority or pay.
. . .
When the Board decides to fill a vacancy,
notice of the vacancy in the bargaining unit shall be
sent to each building by the Board. This will only occur during the school year. During the
notices will be sent to each employee. This notice shall include the job classification,
and a brief description of the job duties.
For employees who make application within
five (5) working days of receipt of the posting, every
effort will be made to fill such vacant positions from within the bargaining unit, provided the
applicants are qualified for said positions according to the following considerations:
A. In filling a position in the same
classification, a lower classification or one step above the
employee's current classification for employees in Group I-IV, the unit member who meets
qualifications and has the greatest seniority will be awarded the position.
B. In filling positions in a higher
classification, the unit member with the greatest seniority shall
be given the position if the employee is the most qualified applicant.
Successful applicants will be notified of
their selection within ten (10) days and non-successful
applicants will be notified at the same time.
Should there be a dispute as to whether or
not an employee meets the qualifications, a grievance
may be filed at Step One with the Director of Human Resources.
The Union contends that an employe's qualifications for promotion must be
on objectively ascertainable, tangible evidence regarding the same, and not on subjective
alone. It submits that in this case the District is required under the contract provisions to
the relative qualifications of two employes who applied for the same promotion as well as the
employes' relative seniority. It asserts that there are several approaches as to which party
burden of proof in case of managerial action taken under "relative ability" clauses with some
the burden being on the employe, others on the employer and in still others, an even heavier
is placed on the employer to not only show greater ability in the
junior employe but to also show the absence of discrimination and arbitrariness and the
good faith. It notes that under certain relative ability clauses the employer took the initial
it should be able to justify it. It notes that some arbitrators are of the opinion that even
seniority clauses confer certain rights on senior bidders and selection of the junior must be
demonstrated by the employer. It asserts that the standard of proof is the "head and
standard. It argues that there must be a definite, distinct, substantial and significant
between two competing employes with respect to ability to perform the work in favor of the
employe before the employer can award the job to the junior employe. It observes that
are given leeway in promotions to jobs requiring special working conditions but the employer
have had a fair and ample opportunity to judge it.
The Union insists that in the instant case there was virtually no evidence that Mientke
qualified for the position and there was no comparison of her qualifications with the
qualifications. It submits that Mientke received a favorable recommendation from her
principal and Fitzgerald chose to recommend her for the position but there was no objectively
ascertainable, tangible evidence on which any sort of neutral independent fact based
concerning the relative qualifications of Mientke and the grievant could be based. It states
conclusory opinion that Mientke was the "most qualified" applicant is not sufficient to prove
The Union claims that the administrators' criticisms of the grievant are not credible
were voiced to her until Mientke was recommended for the position. It notes that when
first related to her in October 1998, it included an incident that did not even involve her. It
one incident involved misrepresented facts and the others occurred after the grievance was
submits that the criticism of the grievant appears contrived as a reason to reject her for the
and the purported criticisms are not credible.
The Union contends that the grievant was the most qualified applicant to fill the
observes that the grievant was asked to take on responsibilities in addition to her regular
points out that teachers and other staff testified that the grievant interacted well with students
was pleasant and congenial when working with other staff. It observes that the senior High
Aide, Helen Novak, who had interviewed the other candidates, was of the judgment that the
was the most qualified person for the position and she so informed the administrators. It
this conclusion is also compelled by the evidence of record in this case. It concludes that the
should be appointed to fill the position and be made whole.
The District contends that the determination of the "most qualified applicant" is
the District under the management rights clause and is not subject to arbitral review. It notes
Section 1304-B provides that in filling a higher grade position, the unit
employe with the greatest seniority should receive the position if the employe is the
applicant. The District acknowledges that the grievant met the minimal qualifications for the
so the final sentence of Section 1304-B is not applicable. It asserts that Article III, the
rights clause, reserves to the Board all rights and functions of management and provides that
rights should not be subject to the grievance procedure. It refers to Section 302 which lists
allocation and assignment of work to employes, the determination of policies affecting the
of employes and the judgment of employe performance as rights of management. It states
agreement contains no provision binding the District to any particular procedures in filling
vacancies, does not require or forbid interviews and does not prohibit consideration of
applicant's district job performance. It insists that the determination of "most qualified
rests with the District and no provision can be said to forfeit that determination to an
It submits that the Union has attempted to reduce the District's discretion in
Section 1304-B or to secure a different interpretation of that language; however, the Union
been successful in either bargaining or persuasion and should not do so through this
argues that the District has relied repeatedly on its reserved rights which protects the exercise
from review in arbitration and the District's determination of the "most qualified applicant"
be subject to arbitration because the contract says so. It seeks dismissal of the grievance as
the scope of the arbitrator's authority.
The District argues that if its determination is subject to review, the arbitrator should
the District's determination unless the grievant shows by clear and convincing evidence that
determination was made in bad faith or is arbitrary and capricious. Contrary to the Union's
suggestion that the absence of detailed documentation to substantiate the administrators'
about the grievant's performance is injurious to their negative concerns of her skills, the
points out that the contract does not require regular or written evaluations of unit employes
administrators have to communicate each and every observed performance deficiency. It
requiring the District to defend every "most qualified" decision by proving all
misgivings would turn the contractual arrangement on its head as the contract does not
even suggest such a result. It relies on Article III for the proposition that the
determination by the
administrators of most qualified should be left to their discretion as much as possible. It
deny that the grievant was not interviewed but explains that she was interviewed for the same
three months earlier and the interviewers were thoroughly familiar with her work, but they
have such knowledge of the other applicants. It also takes the position that the contract does
require interviews or any other particular process in order to form a judgment which could
based on work history. It asserts that the only way to protect the District's exercise of rights
Article III is a standard of review which accords deference to the judgments and
are a product of the exercise of these rights. It argues against a de novo
determination because it
would alter the contract and elevate seniority to a more dispositive role than the language
and would invite more grievances. It urges a
standard of review that recognizes the reservation of management rights without
and obstacles into the decision making process which are inconsistent with the management
The District insists that its determination that the grievant was not the most qualified
sustained. It submits that the grievant failed to establish that she was the "most qualified"
The District claims that its selection was consistent with prior decisions in similar situations
grievant presented no evidence that the parties have interpreted the contract as urged by the
here. It lists a number of other appointments where junior or "outside" applicants were
senior employes and the "most qualified" determinations made by the administration trumped
The District takes the position that merely because the grievant substituted in the
not sufficient to overcome her performance shortcomings. It insists that substituting in a
not be an automatic positive factor under the "most qualified" standard and it may be a factor
or a negative factor. In the grievant's case, the District alleges that it was a negative factor
the grievant was viewed as not skillful in handling volatile situations with students and she
handle student situations effectively without the need to seek administrative intervention. It
that the grievant allowed situations to escalate or caused the escalation or failed to adopt a
to prevent them from escalating. It states that the administrators were not alone in this
as fellow unit member Novak acknowledged that the grievant was very "black and white,"
qualities Novak had seen in another applicant whom she ranked last. It claims that the
argument that because the grievant did not have a full-blown trial over these, their merits
downplayed. It maintains that seasoned administrators can distinguish legitimate student
and the grievant's substitute experience reinforced the negative perceptions of the
It admits that the grievant's performance as a substitute was adequate but that does not
an endorsement for the regular position nor a judgment as to the most qualified candidate.
The District contends that the grievant's attacks on the administrators' process are
merit and do not make the grievant the most qualified. The grievant was the only available
indicating an interest in substituting, but that is insufficient to establish that she was the most
qualified. It rejects the grievant's argument that she should have been interviewed in the fall
or that the interview process would elicit information to allow comparison with another
It notes the grievant's September 24, 1998 letter to the administration does not ask for
or claim an injustice but was a defense of her performance and a vigorous advocacy of her
It insists that the grievant failed to show she was more qualified that Mientke and the District
shown why it considered the grievant among the least qualified despite her experience
and the grievance has no merit.
The District posits that if a remedy is in order, it should be prospective, subject to
probationary period provision, and if back pay is ordered, it should be offset by all the
earnings received. It concludes that the grievance should be denied.
The Union contends that whether the grievant was the "most qualified" candidate to
Attendance Supervisory Aide position in the fall of 1998 is arbitrable. It relies on the
a grievance in Article XII as the issue of the grievant's qualifications falls under Section
1304 of the
contract. It seeks rejection of the District's arguments under the management rights clause as
Section 301 sets out a prefatory condition that management prerogatives are not
as otherwise specifically provided for in this agreement . . ." and Section 1304 provides that
of a vacant position is grievable where there is a dispute as to whether or not an employe
qualifications to fill the position and this specific language takes preference over the more
language in Section 302. It concludes that the dispute is arbitrable.
The Union maintains that whether a candidate is the "most qualified" presents a
fact and subjective opinion is not dispositive. It states that the after-the-fact criticisms by the
administrators should not be taken as proof positive that the grievant was not the "most
and the opinion of senior aide Novak that the grievant was the most qualified should be
insists that if the subjective opinion of the administration is the standard of review then the
grieve a manager's decision regarding an applicant's qualifications would be rendered
and the objective "most qualified" standard would have no application other than the
chosen by the managers for whatever their reasons." It argues that the standard for review
be based on a recognition that Section 1304-B is a modified seniority-relative ability
to give considerable weight to seniority and that there must be measurable and significant
between junior and senior before seniority will not be given effect. It claims that the District
burden to prove by objectively ascertainable, tangible evidence establishing a definite,
substantial and significant difference that Mientke's qualifications were "head and shoulders"
those of the grievant.
The Union claims the evidence compels the conclusion that the grievant was the
qualified" candidate. It reiterates its arguments made in its brief in chief that the criticisms
grievant were not brought to her attention until the decision was made not to appoint her to
position and these criticisms should not be credited.
The Union alleges that the failure to interview the grievant was arbitrary and
denied her a fair opportunity to be considered for the position. It insists that because the
denied an interview, her application was measured against a different standard
than the other candidates as she was judged on the basis of perceived deficiencies in
in other positions while the others were judged on their "interview personality." It maintains
failure to discuss criticisms of her performance and the lack of an interview denied her any
opportunity to respond to those or to explain the differences in her duties and responsibilities.
observes that the administrators could not make a fair comparison between her potential
as distinguished from her perceived performance. It points out that the other applicants were
observed interacting with students and staff and had no statistical information about the
interaction, so the grievant was judged on uninformed and essentially wrong perceptions of
deficiencies in her performance while the others were judged on the relative positive
made during the interviews. It claims that a comparison could not result in a favorable
the grievant and the denial of an interview guaranteed it.
The Union argues that even if there were deficiencies in the grievant's work
does not mean she was not the "most qualified." It notes the District acknowledged that she
qualified for the position and the issue is whether she was the most qualified. It disputes that
grievant had to show she was more qualified than Mientke claiming the District had the
proving the applicant selected was the "most qualified" and, in fact, the grievant proved she
"most qualified" candidate. It insists that the District failed to prove that Mientke stood
shoulders" above the grievant. It asserts that the grievant presented tangible evidence
substantial background experience, the varied and sophisticated responsibilities the
asked her to undertake and her interaction with students and staff. It submits that nothing
remotely comparable was offered in evidence about the other applicants and the conclusion is
compelled that the grievant stood "head and shoulders" above the rest. It asks that the
sustained, the grievant be placed in the position without any probationary period requirement
be made whole to October 5, 1998.
The District takes issue with several of the Union's assertions of fact. It observes
grievant submitted the September 28, 1998 letter after she became aware that she
might not be
interviewed again for the position. It notes that the letter did not request an interview or
disadvantage by not being interviewed and this is significant to measure her complaint about
interviewed. It asserts that while the grievant characterizes her letter as reminding the
of her qualifications, the letter defends the manner in which she handled students. It
the administrators did not share her opinion of her performance and the grievant argues that
subjective opinion should be given greater weight than the administrators'. The grievant, it
claims support from staff and teachers, none named, but does not include any administrator.
out that the grievant suggests Novak's support but ignores Novak's testimony that this
based on the grievant's greater seniority which entitled her to the job, an interpretation at
contractual language because it eliminates any difference between Sections 1304-A and
District observes that the grievant ignores Novak's testimony that the grievant demonstrated
difficulty dealing with students that another applicant had shown with the result that Novak
that applicant last.
The District disputes the grievant's claim that the administrators were instructed to
her experience as an Attendance Supervisory Aide. It states that the grievant's prior service
position as a substitute was taken into consideration.
Contrary to the Union's assertion that the administrators had not told the grievant
performance deficiencies until October 2, 1998, the District insists that it gave the
constructive criticisms prior to that date and while these were not documented every time,
were discussed with her. It insists that the fact the grievant claims they were not critical of
performance does not mean that such comments were not given. It asserts that the
had concerns and believed they had communicated them to the grievant. The District takes
position that communication of these concerns was not a prerequisite to consideration of them
"most qualified" assessment.
The District denies that the notes on the grievant's birthday card are evaluative of her
performance and simply were positive comments as negative comments are seldom written on
occasion cards. The District refers to the Union's brief where it details events that occurred
grievance suggesting the administrators were giving her a raw deal. It asserts that the
were simply trying not to repeat the mistakes the grievant claimed they made in dealing with
submits the grievant's reactions to the after grieved events undermine her claim that she
such treatment prior to the grieved event. It notes that no new grievance was filed nor was
amendment of the first grievance raising a reprisal claim. The District insists that the
quotes in its brief from Elkouri & Elkouri, How Arbitration Works,
5th Ed. BNA, 1997, do not
advance the grievant's cause as the reference omits footnotes of relevant and instructive
and deals with the burden of proof under "relative ability" clauses; however, the parties'
is not really a relative ability clause and there is no discussion of contract language which
the most senior gets the job only if he/she is the most qualified applicant for it. It also
asserts that the
quote from Labor and Employment Arbitration, 2nd Ed. T.
Bornstein, A. Gosline and M. Grunbaum,
ed. 1999, provides little guidance because it does not deal with the contractual language set
the parties' agreement. It also distinguishes Jackson County, Case 99, No. 49676, MA-8024
(Mawhinney, 1995) because it is not a "most qualified" case. The District claims that
the Union's assertion, the record contains substantial credible evidence of the successful
qualifications. It notes that Mientke had prior successful employment in the District,
strong recommendation from her supervisor, Fitzgerald's wife gave her a positive comment,
ranked higher by an interviewer than other applicants who had the same student relation
as the grievant, Mientke had not been the subject of complaints in dealing with students and
administrators concluded that Mientke was a better applicant than the grievant. It concludes
Union produced no
evidence of bad faith and the administrators using their experience and familiarity with
of the school, selected the most qualified applicant. The District contends that if a remedy is
awarded, the grievant should serve a probationary period with the discount of 20¢ per
hour for the
The first issue to be determined is whether the District's determination of "most
is arbitrable. Article III of the agreement provides in Section 301 as follows:
Except as otherwise specifically provided in this Agreement, the
Board retains all rights and
functions of management and administration that it has by law and the exercise of any such
functions shall not be subject to the grievance procedure.
Article XIII of the parties' agreement provides procedures related to promotion,
change of assignment. Section 1304 discusses the procedures that will be followed when the
decides to fill a vacancy. In this case, the District filled a vacancy and applied the
Section 1304-B. Article XII, the grievance procedure, defines a grievance as a "dispute
parties concerning the interpretation or application of specific provisions of this contract."
a broad definition and the grievance filed in this matter claims the grievant was the most
applicant. The Wisconsin Supreme Court in Jt. School District No. 10 v. Jefferson Ed.
78 Wis2d 94 (1977) stated the test for arbitrability was "whether there is a construction of
arbitration clause that would cover the grievance on its face and whether any other provision
contract specifically excludes it." There is a dispute about whether or not the grievant is the
qualified" applicant and the arbitration clause is broad enough to cover this grievance on its
language of Section 301 provides that except as otherwise specifically provided in the
exercise of rights are not subject to the grievance procedure. Section 1304 is specific
acts as a limitation on the District's exercise of its retained rights. Thus, it cannot be said
Section 301 specifically excludes arbitration of the grievance. Thus, the grievance is
the determination under Section 1304-B was not arbitrable, then the selection of an applicant
he/she had red hair and no other qualifications over someone well qualified but with brown
not be arbitrable. Section 1304-B infers the most qualified will be selected and a grievance
challenging this under Jefferson, supra, is arbitrable.
Having concluded that the grievance is arbitrable, the next issue is the appropriate
for review. The Union has set forth a standard of review related to a modified seniority
asserting a "head and shoulders" standard. It refers to a number of cases
including Jackson County, Case 99, No. 49676, MA-8024 (Mawhinney, 4/95). The
language there provided that seniority and qualifications will be considered and "[W]hen the
qualifications of two or more bargaining unit employes are relatively equal, seniority shall be
determining factor." Section 1304-B of the agreement provides that "[I]n filling positions in
classification, the unit member with the greatest seniority shall be given the position if the
is the most qualified applicant." This is not a relative seniority clause. The application of
is illusory as seniority only comes into play if the senior employe is deemed to be the most
thus qualifications is the determining factor in selecting the successful applicant and seniority
a factor where the most qualified coincides with the most senior. Section 1304-B does not
a standard of review of the District's decision with respect to determining the "most
applicant. The District has the discretion to evaluate applicants and make the decision as to
the most qualified subject to the Union's right to challenge this decision as reasonable.
are often guided by the following principle:
. . . if management's decision in the matter was not arbitrary,
capricious or unreasonable, or
based on mistake of fact, its decision should stand. Furthermore, the boundaries of
should not be so narrowly drawn that management's judgment must coincide exactly with the
arbitrator's judgment . . .
Trans World Airlines, Inc., 41 LA 142
The undersigned finds that the burden of proof is on the Union to show that the
decision as to the most qualified applicant was discriminatory, arbitrary, unreasonable or
The next issue to be determined is whether the District violated Section 1304-B by
selecting the grievant as the most qualified applicant. The Union has asserted that the
District did not
interview the grievant which resulted in disparate treatment. As noted earlier, the agreement
not spell out the procedures under which the District must assess applicants so the District is
make assessments as it deems appropriate as long as it acts reasonably. The District did
other applicants but not the grievant; however, the grievant had been interviewed for the
position a few months earlier and was well known to the interviewers and she also sent a
Mr. Fitzgerald. The undersigned cannot conclude that the District's interviewing
candidates and not interviewing the grievant, who they knew and had observed, is so
or irrational that it would rise to arbitrary and capricious or unreasonable conduct on the part
District. The District was seeking an applicant with positive interpersonal communication
knew how to handle student problems effectively and efficiently and could relate well to
Fitzgerald, as one of the interviewers, determined that others could do this more effectively
grievant. This conclusion is supported by Ms. Novak who testified as follows:
By Mr. Ruhly:
Q. And did you explain tell me
why Marianne Nystrom was the last on your list?
A. Because she was very black and white,
the same way that Linda Bulloch was, and that's
why we had her lowest on our lists.
Q. And did you also indicate at that time
that Linda needed a different attitude towards
A. I had talked with Linda and told her if
she was interested in another position that was
coming up she couldn't be so black and white, she had to find a gray line. (Tr. 106 and
The Union's argument that Ms. Novak recommended the grievant as most qualified is
persuasive. Ms. Novak testified that she was "under the assumption in our Union if we were
we had the seniority and you were qualified to do that job when a posting came open and
for it, that you could get it." That appears to be the standard under Section 1304-A, but is
Section 1304-B which is applicable here because the grievant who was in Group II was
Group VI position.
The grievant's assertion that she was the most qualified has not been demonstrated.
testified she was too black and white. Dave Martin testified that he too was black and white
grievant's methods were similar to his. (Tr. 161, 164) He further testified that things
162-164) and it was kind of a gray area to him, but Jon Russell had great rapport with
he would say things to students that would be taken in a completely different manner than
himself. (Tr. 167) He testified that his approach did not work as well for the grievant as
It does not make any sense that if the grievant was the most qualified that the District
not select her. The District wants the most qualified person in the position and has retained
in the contract to permit it the discretion to select the most qualified applicant. There was no
showing of any animosity. The grievant was put in the position as a substitute on a number
occasions and put in substitute positions in other higher grade positions. Also, she never
two time selections of Jon Russell for the position. The District in this case, after the
their knowledge of the grievant, decided that Mientke was more qualified. The standard
District the discretion to make this determination and the Arbitrator cannot second-guess its
unless it is shown to be arbitrary and capricious, discriminatory or unreasonable. The
presented failed to demonstrate that the District acted improperly. Although the Union may
with the selection process, the appropriate method to change the selection procedure is at the
table. Given the contractual language here, the Union has not shown the District's
decision to be
arbitrary and capricious, discriminatory or unreasonable, so there is no violation of the
Based on the above and foregoing, the record as a whole and the arguments of
undersigned makes the following
For the reasons stated above, the District has not violated the parties' collective
agreement by not selecting the grievant to fill the Attendance Supervisory Aide position, and
therefore, the grievance is denied.
Dated at Madison, Wisconsin, this 24th day of January, 2000.
Lionel L. Crowley, Arbitrator