BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
OSHKOSH CITY EMPLOYEES UNION,
LOCAL 796, AFSCME, AFL-CIO, and affiliated
WISCONSIN COUNCIL OF COUNTY AND MUNICIPAL
CITY OF OSHKOSH, WISCONSIN
Mr. Richard C. Badger, Staff Representative,
Wisconsin Council 40,
AFSCME, AFL-CIO, P.O. Box 2825, Appleton, Wisconsin 54912,
appearing on behalf of the Oshkosh City Employees Union, AFSCME,
AFL-CIO, and affiliated with Wisconsin Council of County and
Municipal Employees, referred to below as the Union.
Mr. William G. Bracken,
Employment Relations Services Coordinator,
with Mr. Tony J. Renning on the brief, Davis &
Attorneys at Law, 219 Washington Avenue, P.O. Box 1278, Oshkosh,
Wisconsin 54903-1278, appearing on behalf of City of Oshkosh,
Wisconsin, referred to below as the City or as the Employer.
The Employer and the Union are parties to a collective
bargaining agreement which was in effect at all times relevant to
this proceeding and which provides for the final and binding
arbitration of certain disputes. The parties jointly requested
that the Wisconsin Employment Relations Commission appoint an
Arbitrator to resolve a dispute reflected in grievance filed on
behalf of Jay Munig, who is referred to below as the Grievant. The
Commission appointed Richard B. McLaughlin, a member of its staff.
Hearing on the matter was conducted in Oshkosh, Wisconsin on
September 27, 2000. A transcript of the hearing was filed with the
Commission on October 16, 2000. The parties submitted briefs and
reply briefs by January 2, 2001.
The parties did not stipulate the issues for decision. I have
determined the record poses the following issues:
Did the City violate the Collective Bargaining Agreement
it denied the Grievant a trial period for the Equipment Mechanic
If so, what is the remedy?
Except to the extent expressly abridged by a
of this agreement, the City reserves and retains solely and
exclusively, all of its Common Law, statutory, and inherent rights
to manage its own affairs, as such rights existed prior to the
execution of this or any other previous Agreement with the Union.
. . .
. . .
All non-supervisory vacancies shall be posted on the bulletin
board of the Public Works and Parks Department and such notice
shall be posted five (5) working days before the vacancy is filled.
Employees wanting such posted jobs shall sign the posted notice.
The employee shall be selected on the basis of seniority, work
record and qualifications. In the event an official training
program has been conducted for a given position successful
completion of the course will be the qualifying factor for
promotion. Said employee shall demonstrate his ability to perform
the job posted within thirty (30) working days and if deemed
qualified by the employer shall be permanently assigned the job.
Should such employee not qualify or should
he desire to return
to his former job, he shall be reassigned to his former job without
loss of seniority.
The grievance, filed on July 27, 1999 (references to dates are
to 1999, unless otherwise noted), cites Article XVII as the
governing contract provision. Gerald Herbst serves the City as the
Parts Clerk in its Central Garage. He also serves as Union
Steward. In that position, he completed the grievance form on the
Grievant's behalf, and attached to it the following summary of
(The Grievant) signed the posting for Central Garage
on June 8, 1999.
On July 12, 1999 John Nackers asked him
to sign an agreement
stating he would score at least 80% on the test F.V.T.C. was giving
on July 16, 1999 to be accepted for the mechanic position.
On July 14, 1999 (the Grievant) and
myself met with John
Nackers, Bill Rasmussen. They asked him why he would not sign
the agreement. (The Grievant) and I said it did not state in
either the contract or the posting that the position would be
based solely on the test being given by F.V.T.C.
(The Grievant) and I said we would see
what the instructor
from F.V.T.C. said and we would take it from there. Bill
Rasmussen then told John to tell the instructor at F.V.T.C.
that (the Grievant) would need to score at least 80% or
On July 19, 1999 (the Grievant) was
informed that he did not
pass the test by John Nackers. We saw the actual test itself
and on Friday July 23, 1999 (the Grievant) received in the
mail his results of the test.
We feel with (the Grievant's) Associate
Degree and test
results from Universal Technical Institute and work history he
is not being given a fair chance at the job.
(The Grievant) has not worked as a
mechanic for seven years
and we feel if given the chance he would be able to pick up
where he left off and be a credit to the Central Garage.
We also feel that the test (the Grievant)
was given was not
fair because he has not taken the course given by F.V.T.C.
(The Grievant) also was not even
interviewed by anyone for the
job and only one reference was checked.
Even though (the Grievant) has had only about three and one
half years working on heavy equipment and has limited
knowledge of test equipment for electronic engines and
transmissions he is very capable of learning it quickly.
Our mechanics that work in the Central
Garage now do not have
any knowledge of the test equipment, simply because we do not
even have it and would have to learn as they go also. The
test equipment we have now is for pickups and related
vehicles, and the mechanics have not had any training for that
even. They have to read from the manuals and follow the step
by step instructions.
The position the Grievant sought is known as the Central Garage
Equipment Mechanic, which is referred to below as Equipment
The City's Central Garage is responsible for the maintenance
of a varied fleet of vehicles and equipment. City owned trucks
range from pickups to garbage trucks. The City also uses motor
graders, backhoes, end loaders, bucket trucks and vans. The
Central Garage also does small engine maintenance and repair. The
City staffs the Central Garage with four Equipment Mechanics and
On June 8, the City posted an Equipment Mechanic position.
Attached to the posting was a two-page position description, which
states the following:
GENERAL STATEMENT OF DUTIES
This is a skilled position, involving the
repair of light and heavy duty trucks, and off road machinery.
Work involves performing skilled tasks in the maintenance and
repair of gasoline, diesel and hydraulic powered equipment.
Employees in this class will also perform welding and body repairs.
Work is performed under general supervision allowing maximum
opportunity for independent judgement.
ESSENTIAL DUTIES AND
A. Tests, repairs, reconditions
and maintains machinery and
equipment, including, but not limited to; trucks, trailers,
tractors, endloaders, excavators, dozers, motor graders, etc.
B. Installs, repairs and
reconditions auxiliary equipment used on
vehicles and equipment including but not limited to; snow
plows, snow blowers, sweepers, flail mowers, etc.
C. Repairs brakes, engines,
electrical, fuel, hydraulic,
transmission, ignition, air, exhaust, axle assemblies,
clutches, and related systems.
D. Responsible for diagnosing
mechanical problems and determine
the most effective means of maintenance, repair or
E. Operates a variety of hand, electric and air driven
provided by Central Garage.
F. Responsible for keeping
shop areas and equipment in a safe and
. . .
REQUIRED EDUCATION AND
Graduate from an accredited Technical College in auto
and or diesel
Five (5) years experience working
on diesel engines, or heavy
Knowledge in the use of test
equipment for electronic engines,
Must possess a valid Wisconsin
Commercial Drivers license, with air
. . .
John Nackers is the Central Garage Foreman, and drafted the
position description, with the assistance of the City's Human
Resources Department. The predecessor position description for
Equipment Mechanic stated the following:
Nature of Work
This is a skilled level of work involving the
repair of light and heavy duty trucks, and off road machinery.
Work involves performing skilled tasks in
the maintenance and
repair of gasoline, diesel, and hydraulic powered equipment.
Employees in this class also perform welding and body repair tasks
on a limited basis. Work is performed under general supervision
and is inspected during progress and upon completion.
Examples of Work
Performs mechanical repairs, adjustments,
maintenance tasks on a variety of automotive, light and heavy
trucks, and off road equipment. Trouble shoots and repairs
mechanical, electrical and hydraulic system malfunctions. Uses
tune-up and testing equipment to aid in problem diagnosis.
Performs body panel repairs on both sheet metal and fiberglass.
Welds and brazes on a limited basis using both electric and gas
methods. Performs related duties as required.
. . .
Required Education and Experience
High School graduation
Wisconsin Commercial Drivers License,
with air brake
Ownership of necessary wrenches and other
hand tools needed for
performance of job duties.
Ability to perform heavy physical labor.
Nackers redrafted the position description because he found the
original unduly vague, and out of date. He added the five-year
requirement to the "required education and experience" section to
highlight the demands placed on Equipment Mechanics by the varied
nature of the equipment maintained at the Central Garage. That
level of experience reflected, in his view, "a pretty good training
time . . . where you're going to have a real broad spectrum of
knowledge" (Tr., at 88). The increased experience requirement
reflected an upgrade in the requirements of the position.
The City also uses mechanics in its Fire, Transit and Parks
Departments. The Fire Department requires "(a)t least two years of
technical school with four to five years of journeyman training or
equivalent in vehicle and small engine repair" for its mechanic.
The Transit Department requires "200 or more hours in formal course
work in mechanics or related fields" and "(t)hree years experience
in automotive and electrical repair work" of its mechanic. The
Parks Department requires "(3) years of demonstrated mechanical
work or any combination of training and education that will provide
the required knowledge" of its mechanic.
The Grievant and one other unit employee signed the June 8
posting. Sometime shortly after signing the posting, the Grievant
detailed his experience and his interest in the position to
Nackers. On Nackers' request, he supplied the Human Resources
Department with a resume, which summarized his work experience
City of Oshkosh, Oshkosh, WI
--Employed April 1993 to present
--Operation of heavy and light equipment
--Asphalt and concrete construction
City of Berlin, WI
--Employed December 1990 to December
--Worked on small engine, automotive, light
truck, heavy truck,
Quality Truck Care Center, Oshkosh, WI
--Employed December 1989 to December
--Worked on heavy truck, heavy equipment
DMS Auto Parts, Oshkosh,
--Employed January 1987 to January 1988
Metzler Sales and Service,
--Employed September 1986 to March 1988
--Light automotive work
--Clean up crew
The resume also noted the Grievant had graduated, with an
Associate's Degree, from Universal Technical Institute of Glendale
Heights, Illinois. After the completion of the posting period, the
Human Resources Department reviewed the personnel files of the
applicants. Nackers learned that he should consider further review
of the Grievant's qualifications, but that the other applicant
lacked a Technical College degree. The City does not test for all
of its vacant positions, but typically tests applicants for police
officer, fire-fighter and mechanic.
Nackers contacted Fox Valley Technical College (FVTC)
concerning the creation of a test for Equipment Mechanic. FVTC
referred him to Daniel Poeschel, a team leader and instructor of
Diesel Mechanics. Poeschel has an Associate's Degree in Diesel
Mechanics and Truck Construction, and worked for Schneider National
Trucking in Green Bay for nineteen years prior to becoming an
instructor at FVTC in 1997. While at Schneider, Poeschel worked
twelve years as a diesel mechanic and seven years in the
engineering department. His experience in testing is from teaching
and through certification courses at FVTC.
Nackers faxed Poeschel the position description for Equipment
Mechanic, and discussed what the City was looking for in four to
five conversations with Poeschel following his receipt of the fax.
Nackers informed Poeschel that the City was interested in testing
with some specificity regarding automatic transmissions,
electronics and brakes. Poeschel adapted a test he administers to
his students for the City's use.
Nackers discussed the need for a test with the Grievant, who
informed Nackers he should have no problem with it. Nackers asked
the Grievant if he would agree to an 80% passing grade for the
test. He gave him the following memo, dated July 12, for his
On July 16, 1999 at 1:00 p.m. there will be a mechanics' skills
test given by the Fox Valley Technical College in Appleton. The
test will be a combination of written data, and hands on skills.
A score of 80% will be required to be accepted for the position
of Central Garage Mechanic. The tests are scored and graded by the
Fox Valley Technical Instructor.
After successful completion of the skills
test, you will be
scheduled for your physical testing. When this is completed, your
probationary time will start per the Local 796 Union Contract.
Please sign below and return this letter to me if you agree to
continue with the skills testing.
The Grievant asked to think about signing the memo, then consulted
Herbst. Herbst, Nackers, the Grievant and Street Superintendent
William Rasmussen then met. Herbst took the position that the FVTC
instructor should score the tests and determine the passing grade,
without regard to the Grievant's willingness to sign the memo. The
parties agreed that this would be the appropriate procedure.
Nackers and Poeschel had at least some discussion on this
point, ultimately agreeing that 70% would be the passing score.
This is the passing score for Automotive Service Excellence (ASE)
tests. ASE is part of the National Automotive Technicians'
Education Foundation. ASE certifies mechanics, and permits its
logo to be displayed by those shops that employ ASE certified
personnel. Poeschel views ASE tests as essentially industry
standard. Nackers is not ASE certified. The City does not require
ASE certification for its Equipment Mechanics. The test created by
Poeschel is not an ASE test.
Poeschel designed the test to evaluate introductory-level
mechanical knowledge. For the first portion of the test, Poeschel
built three problems into an engine. He provided the Grievant a
laptop computer to generate fault codes, a troubleshooting manual,
and necessary tools to locate the problems. The second portion of
the hands-on portion of the test concerned slack adjusters for
brakes. The test first demanded the identification of four
different brands of slack adjusters. The next part demanded the
proper set up of each brand of slack adjuster. Poeschel supplied
the necessary tools, manuals and templates. The written portion of
the test consisted of multiple choice and true/false questions.
Poeschel summarized the results of the test in a letter to
Nackers that states:
. . .
The written portion consisted of 125 multiple choice and
true/false questions. The hands on portion contained engine
problems worth 30 points and a brake section worth 72 points. The
scores are as follows:
Written section: 67 correct = 57%
Engine section: 20 correct = 67%
Brake section: 48 correct = 67%
Total answers correct: 135
Total possible correct: 227
Final cumulative percent Score: 59%
. . .
On Nacker's request, Poeschel sent a follow-up letter stating the
Grievant "does not meet the minimum qualifications" for
Equipment Mechanic position.
Nackers informed the Grievant of the results of the test,
prompting the grievance. The City then advertised the position to
applicants outside of the bargaining unit. The City received six
applications and interviewed three of the applicants. The
unanimous choice of the interviewing committee was Shawn Winslow.
He had worked as a heavy equipment mechanic for ten of the eleven
years preceding his application for City employment. He spent the
remaining year as a mechanic for a landscaper. On September 10,
Winslow took the same test taken by the Grievant in July. Winslow
received a score of 73.5%, and was subsequently awarded the
position of Equipment Mechanic.
The balance of the background is best set forth as a brief
overview of witness testimony.
Beduhn has worked as an Equipment Mechanic since December of
1988. He estimated that roughly 10% of his work time is devoted to
the repair and maintenance of light-duty vehicles. He has taken
vocational school courses since high school, and has participated
in ongoing training by the City. He does not possess an
Stahowiak has served as an Equipment Mechanic for roughly
seven years. Prior to this, he worked in the City's Sanitation and
Street Departments. At the time he became an Equipment Mechanic,
he did not not have advanced training in mechanics. Rather, he had
acquired sufficient experience through his life and job experience
to be hired by the City as an Equipment Mechanic. He estimated he
devotes roughly 75% of his work time to heavy equipment work, with
the remaining time spent on light truck and automotive work. He
has participated in City sponsored training in transmission work
and hydraulics. He testified that when the City acquires new
equipment, the manufacturer typically affords some training to the
Phillips has served as an Equipment Mechanic for roughly
sixteen years, and prior to that served as a Mechanic for the
Transit Department. He has had training beyond high school in
helicopter maintenance through the U.S. Army, and has participated
in City sponsored training. He estimated between 75 and 80% of his
work time is devoted to heavy equipment work.
Herbst has worked for the City for roughly thirty-one years.
He stated that the City should have checked the Grievant's
references and interviewed him. If they had, in his view, the
Grievant would have demonstrated the need for a trial period to
evaluate his qualifications. He noted he believed the Grievant had
sufficient experience to meet the five-year requirement stated in
the posting. Herbst noted that the City only used two of the four
brands of slack adjusters covered in the test.
The City hired the Grievant into its Sanitation Department in
May of 1993. Since July of 1997, he has served in the Street
Department as an Equipment Operator II. While in the Street
Department, he has worked in the small equipment room. In the
small equipment room, he repaired and maintained power equipment
used in the Street Department. He noted his degree from Universal
Technical Institute involved an automotive and diesel engine
program. His work experience with engines started in high school,
when he worked at Metzler Sales and Service. He started cleaning
cars, and doing errands but demonstrated the initiative and ability
to work his way into car and truck repair and maintenance. Most of
the trucks were light duty, but he did do work on heavy equipment
and snowplows. He estimated that when he worked on vehicles for
Metzler, he spent roughly 25% of his time on heavy equipment. At
DMS Auto Parts, he worked at the parts counter, and also performed
oil changes and lubrication. His work at Quality Truck Care Center
typically involved heavy equipment maintenance and repair on a
variety of vehicles. For the City of Berlin, he worked on a wide
variety of equipment from small engines to backhoes. He estimated
that roughly 75% of his time there was spent on heavy equipment
work. He added that his current duties sometimes require him to
make adjustments on heavy equipment. That work, added to his prior
experience, met the City's five-year requirement.
Poeschel acknowledged he never viewed the Central Garage. He
developed the test based on the position description for Equipment
Operator and input from Nackers. The test he developed was
scheduled for four hours, split evenly between the hands-on and
written portions. He noted the Grievant was in a classroom alone
to complete the written portion of the test. For the hands-on
portion, he and the Grievant used an FVTC lab. FVTC supplied all
of the equipment and tools used for the test. He considered the
entire test to be geared to knowledge possessed by an entry-level
heavy equipment mechanic. He noted that he drew heavily on ASE
test preparation booklets to develop the questions, and that he
ascribed no greater significance to it than that it reflected the
City's view of an adequate passing score.
He stated his assessment of the Grievant's score thus: "He
did not score high enough to be put in the shop and to be able to
work by himself without further training" (Tr. at 72). The
Grievant's score on the slack adjustment portion concerned
Poeschel. In his view, whether the Grievant was familiar with each
given brand or not, he should have been able to set them up
properly. He was unaware of how often a City Equipment Mechanic
must set up a slack adjuster. In Poeschel's view, it takes a
minimum of five years to develop a competent mechanic.
Nackers does not possess an Associate's degree, but worked as
a mechanic or maintenance manager for twenty five years prior to
becoming the Central Garage Foreman. He estimated Equipment
Mechanics devote roughly 80% of their work time to heavy equipment.
The balance of City departments work with a less varied type of
equipment than the Central Garage, which in his view accounted for
the varying degrees of experience sought by each department.
He drove the Grievant to the test site, and discussed the
Grievant's desire to become an Equipment Mechanic. He testified
that he was somewhat surprised by the Grievant's score. Sometime
after receiving the score, he rechecked the Grievant's employment
history and then determined the Grievant did not meet the five year
requirement. In his view, the Grievant was unqualified for a trial
period under Article XVII.
Nackers noted that the Parks Department filled a vacant
mechanic position using a testing procedure similar to that used to
hire Winslow, but geared to small engine work. FVTC administered
the test, which also carried a 70% passing score. Three Equipment
Mechanics took the test. Two failed to receive a passing score.
Each continues to work on small engines in Central Garage. The
Equipment Mechanic who received a passing score ultimately took the
position, creating the vacancy sought by the Grievant.
Nackers acknowledged that the City does not use each of the
slack adjusters used for the test. He stated he believed the City
uses three of the four brands.
Molinski works as a Personnel Assistant in the Human Resources
Department. Neither she nor Nackers noted that the Grievant did
not meet the five year requirement until after he took the test.
When an outside applicant appeared for an interview for the
position, she learned he did not meet the five year requirement.
She stopped the interview and informed the applicant he would not
be considered for the position.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The Union's Initial Brief
The Union contends that the grievance centers on the
Grievant's qualifications. He is qualified to be an Equipment
Mechanic and, if there is any doubt on this point, "he should at
least be afforded a trial period to demonstrate his abilities."
More specifically, the Union argues that the Grievant is
certified to operate any piece of City-owned heavy equipment, and
has extensive small engine experience with City equipment. The
successful applicant has no such qualifications. Beyond this, the
Grievant has extensive private and public sector experience. That
experience is sufficient to meet the City's "five year
requirement." Since the City considers "light" duty performed on
its "heavy" equipment to be "heavy equipment work", his experience
with City equipment must be totaled with his earlier work
The Union then contends that "the City's test must be thrown
out because it reaches the epitome of arbitrary, capricious and
unreasonable behavior." More specifically, the Union notes that
the City failed to notify the Grievant of the test until after the
job posting. More significantly, "the test was set up so only a
Fox Valley Technical College graduate could pass the test". That
the City's Parks Department gave a test its own Central Garage
mechanics were unable to pass underscores this conclusion. No less
troublesome is that the test given the Grievant shows inordinate
concern with brakes and brake parts not used in City equipment.
As the remedy appropriate to the City's contract violation,
the Union asks that the grievance be sustained and that the
Equipment Mechanic position be awarded to the Grievant. At a
minimum, the Union asserts that the Grievant is entitled to a trial
period, and appropriate make-whole relief after he successfully
The City's Initial Brief
The City contends the record poses the following issues:
Did the City violate the Labor Agreement when it elected not to
award the Central Garage Equipment Mechanic position to the
If so, what is the appropriate remedy?
After a review of the evidence, the City contends that Article XVII
clearly and unambiguously grants the Employer the authority to
determine the qualifications of job applicants. The evidence
confirms that the City weighed the factors stated in Article XVII
before concluding the Grievant failed to meet the minimum
qualifications of an Equipment Mechanic.
Beyond this, Article I, read in light of relevant precedent,
establishes that the City can determine the minimum qualifications
for its positions. Its determination is subject to challenge, but
the Union's challenge must establish arbitrary or unreasonable City
conduct to warrant overturning its assessment of the Grievant's
qualifications. Relevant precedent also establishes that
"(e)xperience is ordinarily considered a tangible, objective factor
. . . in determining an individual's qualifications." Since the
labor agreement is silent regarding how to assess qualifications,
it follows, according to the City, that it has discretion "to give
reasonable and appropriate written, oral, performance, aptitude and
physical ability tests".
More specifically, the City argues that the five-year
requirement is reasonably related to the Equipment Mechanic
position. The variety of City equipment establishes the range of
skills necessary to the position, which is devoted "somewhere
between 75% and 80%" to heavy equipment. The Grievant submitted
nothing beyond his resume to meet this requirement. Read most
favorably to the Grievant, the resume falls short of establishing
"five years' experience working on diesel engines or heavy
equipment." To conclude that his experience meets the minimum
qualifications of the Equipment Mechanic position "would completely
replace the City's discretion with arbitral opinion."
Confronted with the assertion that the Grievant possessed
experience that could meet the five-year requirement, the City
determined to test the applicants, including the Grievant.
Poeschel based his test on the position description and Nackers'
assessment of its duties. The test created "was fair and
reasonable" and was "administered in good faith . . . without
discrimination." The City's evaluation of the results, including
its determination of the passing score, was reasonable. The 70%
passing score is solidly rooted in ASE certification requirements.
The Grievant's low score established that he was "not qualified for
the . . . position" and that "even a thirty day training period
would not provide the Grievant with the requisite qualifications."
A review of relevant precedent establishes that the City
could, and did, fairly test the Grievant's qualifications. Because
"the test was a reasonable and proper requirement for ascertaining
whether the Grievant possessed the requisite qualifications" and
because he failed to obtain a passing score, his elimination from
the field of applicants cannot be faulted. Nor does the language
of Article XVII permit the conclusion that the Grievant was
entitled to a training or a trial period to acquire the minimum
qualifications needed for the position. Article XVII presumes the
qualifications the Grievant lacked.
The City concludes that "the grievance is without merit and,
therefore, must be denied."
The Union's Reply Brief
The Union notes that it does not dispute the City's authority
to "establish minimum qualifications" or to "determine a job
applicant's qualifications." Rather, the Union challenges "the
City's methods for determining qualifications", its test, and its
refusal to allow the Grievant a trial period "to demonstrate his
Even if the City can establish qualifications, that right is
not unfettered. Article XVII demands City consideration of
"seniority, work record and qualifications." The Union contends
that the City failed to recognize the Grievant's "seven years of
experience operating City equipment." Nor will the record support
the City's assertion that the Grievant acknowledged he lacked five
years of experience in heavy equipment maintenance.
Beyond this, the City's test "was irreparably flawed". The
City gave no advance notice of the test, and failed to use City
equipment in the test. The creator of the test "never visited the
City's garage to see what equipment the City actually used."
Although the City points to ASE criteria, and an ASE based passing
score, the City's test was not ASE-approved and the City does not
require ASE certification. Even if none of these flaws standing
alone destroys the validity of the test, taken together, they
establish "gross unfairness." The Union concludes the "test must
be thrown out."
Nor can the precedent cited by the City obscure what the
grievance seeks. The Union seeks not a training period, but a
trial period. In fact, relevant precedent establishes this is the
best way to determine qualifications. A "fair trial" is not a
"training period". The Union concludes by repeating its demand
that the grievance be sustained with appropriate make-whole relief
awarded to the Grievant.
The City's Reply Brief
The City argues initially that the Union has argued, but
failed to prove, the existence of a binding past practice. There
is no evidence of a binding practice "with regard to the City
providing individuals with a trial period to demonstrate that the
individual is qualified for a particular position." For such a
practice to exist, governing precedent establishes that it must be
"unequivocal, clearly enunciated and acted upon, and readily
ascertainable over a reasonable period of time as a fixed, and
established practice accepted by both parties." The City concludes
no such evidence exists.
The City then challenges the assertion that the Grievant is
minimally qualified for the position. His experience operating
heavy equipment cannot be equated to maintaining it. Nor will
experience with small engines establish the ability to maintain
diesels or heavy equipment. The Grievant's education can be
granted, but education and experience are not synonymous. Nor do
the qualifications of any other applicant bear on the determination
of the Grievant's qualifications. What experience the Grievant
possesses simply cannot meet the five-year requirement.
Asserting there "was no way for the City to independently
confirm whether the Grievant possessed the qualifications", the
City concludes "it was essential to have an independent third party
develop and administer a test to aid the City". An examination of
the evidence establishes that "the test was: (1) specifically
related to the requirements of the job; (2) fair and reasonable;
(3) administered in good faith and without discrimination; and (4)
properly evaluated." That two Parks Department employees failed a
test concerning small
engines has no bearing on the grievance. The City's focus on brake
work cannot be considered a remarkable point on which to test a
heavy equipment mechanic.
The City then contends that it has no obligation under the
labor agreement to afford a trial period to any other than a
qualified applicant. The trial period cannot be used as a
substitute for required experience. The City concludes by
repeating its request that the grievance be denied.
I have adopted the Union's statement of the issues. Either
party's view accurately states the interpretive issue. The Union's
is more narrowly stated that the City's, but each highlights that
the issue turns on the Grievant's qualifications. The offer of a
trial period presumes the demonstration of qualifications. As the
documentation to the grievance shows, the Union contends that the
Grievant qualified for a trial period.
Article I plays no determinative role over the grievance. The
City's authority under Article I is established "(e)xcept to the
extent expressly abridged by a specific provision of this
agreement". Article XVII specifies the selection procedure
following a posting, and thus governs the City's selection of an
applicant other than the Grievant. There is no "official training
program" conducted for Equipment Mechanic, and thus Article XVII
demands that the City select the employee to fill the vacancy "on
the basis of seniority, work record and qualifications."
The three criteria of Article XVII govern competition between
applicants for a single position. The grievance poses an issue of
competition between applicants only if the Grievant is entitled to
the trial period. If the Grievant is not qualified for the trial
period, there is no competition. Two unit employees signed the
posting, with one eliminated because he did not fulfill the degree
requirement. The only remaining possible competition would be
between the Grievant and Winslow. Prior to advertising for outside
applicants, however, the City determined the Grievant was not
qualified for the position. Thus, there is no competition between
the Grievant and Winslow unless the Grievant qualified for a trial
period. In sum, application of the "qualifications" criterion is,
standing alone, crucial to this grievance.
While the Union has made forceful arguments, the City's
position is persuasive. The force of the City's arguments rests on
the five-year requirement. There is no evidence to rebut
Poeschel's or Nackers testimony that a competent heavy equipment
mechanic needs five years of experience. The Union and the
Grievant acknowledge this by asserting not that this requirement is
faulty, but that the Grievant meets it. There is, in any event, no
apparent contractual basis to doubt the City's authority to set or
to enforce this as a requirement for the Equipment Mechanic
Thus, the dispute is factual. The evidence will not, however,
support the assertion that the Grievant has five years of
experience with diesel engines or heavy equipment. The Grievant's
experience at Metzler's spans roughly seventeen months. It is
evident the Grievant, then in high school, worked into the job,
showing the initiative and ability to move from car washing/errand
running into mechanical work. This, however, inevitably took time,
and something less than seventeen months of that experience was
devoted to mechanical work. Beyond this, there is no showing the
Grievant worked a forty-hour week. This too, cuts into the
seventeen-month period. In any event, the amount of diesel engine
or heavy equipment work involved is debatable. Thus, something
other than a full seventeen months of experience can be traced to
Metzler's. This leaves his one-year employment at Quality Truck
Care Center and at the City of Berlin as his heavy equipment
experience. This, however, accounts for only two years. Adding
this to the something less than one and one-half years of
experience at Metzler's falls short of five years.
The Union attempts to make up for this lack of experience by
pointing to his work for the City in the small engine shop and as
an Equipment Operator. The Union buttresses this point by
contending that mechanical work that is similar on light and on
heavy equipment, such as oil changes, can be counted as relevant
experience. Accepting these arguments, however, rewrites the
experience requirement. That requirement is for "Five (5) years
experience working on diesel engines, or heavy equipment." To
accept the Union's position changes this to "Five (5) years
experience, full or part-time, working on internal combustion
engines." This conclusion cannot be accepted without a persuasive
reason to believe the five-year requirement, as written, violates
the labor agreement.
There is no such contractual basis. To conclude otherwise
weakens the Union's arguments on the Grievant's behalf. The
grievance presumes the Grievant was the sole qualified unit
applicant, because the other applicant was not a Technical College
graduate. If, however, that requirement can be rewritten by an
arbitrator to "Graduate from an accredited Technical College or
equivalent experience", then the Grievant's claim to be the sole
qualified unit applicant for the position weakens. In sum, the
City's contractual authority to set minimum requirements is not
challenged by the grievance. As a factual matter, the Grievant
failed to establish five years of experience working with diesel
engines or heavy equipment, and thus cannot be considered qualified
for a trial period.
This conclusion addresses the grievance, but fails to address
the Union's forcefully stated concerns with the test. The Union
argues that the sole reason the Grievant failed to get the trial
period was an improper test. From this, the Union concludes that
if the test is thrown out, the entitlement to the trial period
remains. It is not, however, immediately apparent how the City
weakened its contractual argument to establish qualifications for
the position by failing to note the difficulty with the Grievant's
experience prior to the test.
The force of the Union's arguments on the test must, however,
be acknowledged. The strength of the ASE basis of the test is
debatable, since the Central Garage employs no ASE certified
mechanics. That the test relied on FVTC equipment and a testing
on coursework given at FVTC grants potential bias against non-FVTC
graduates. The test was not rooted in existing City equipment or
procedures, and its passing score was set with less than scientific
It is inevitably easier to criticize an existing test than to
define an appropriate one. Any review by an arbitrator must turn
on a wide range of reasonable alternatives. If interview processes
bring unwanted subjectivity, some latitude must be granted to
attempt more "objective" assessments of qualifications. Most
fundamentally, there is no evidence that the test was created to
favor any applicant, unit or otherwise, over any other applicant.
At the time of the test's creation, the City had not considered any
non-unit applicant. There is no evidence they knew or could have
foreseen an FVTC graduate would take the test. The passing score
is, in itself, of little significance outside of evidence it was
designed to favor or disfavor any applicant. There is no
persuasive evidence the test was administered, scored, or evaluated
in anything other than an even-handed fashion.
Most significantly here, the Union's strongest arguments
regarding the test undercut the Grievant's experience claims. The
Grievant asserts any experience with light or heavy equipment,
including operating that equipment, creates general mechanical
experience which travels across all types of machinery. If this is
the case, how can the City be faulted for not using City equipment
etc., to test for general mechanical experience? If general
mechanical experience travels across machinery types, then the
City's use of FVTC or City equipment or manuals should be
irrelevant to the test's validity.
That the City employed a similar test for a mechanic position
in the Parks Department and screened out two Equipment Mechanics
does not afford a reliable basis to discredit the test given the
Grievant. There is no evidence the tests are comparable. Even
assuming they are, City willingness to permit employees to work on
small engines in Central Garage in spite of their below passing
level score on a small engine test for the Parks Department has no
bearing on the grievance. The "just cause" standard, not an
abstract test, governs day to day work performance. There is no
better measure of daily work performance than its direct
observation. No abstract test offers a superior means to evaluate
daily work performance. Success at a test and successful
completion of work are separate points. A hiring test seeks not to
evaluate work product, but to give some insight into an
individual's knowledge. Presumably, that measurement affords some
insight into the probability of future success at on-the-job work.
It is not a substitute for work.
The Union's arguments support Herbst's position statement from
the grievance. It is not necessary to characterize those arguments
as anything other than well-stated to deny the grievance. Nothing
said above should be read to indicate that the Grievant could not
be a competent mechanic. The same may be true of the other
applicant who signed the posting. This is not, however, the
contractual issue. Whether the Union or an arbitrator would make
the Grievant a mechanic has no bearing on whether the contractual
standards for screening multiple applicants for the same job have
been followed. Here, the evidence establishes that the standards
have been followed. To be applied reasonably, those standards must
any applicant, including all unit members. The ultimate flaw in
the Union's position is that accepting their arguments would slant
the process in favor of the Grievant. This may appear, at least to
the Union, compelling when viewed against the non-unit applicant.
The arguments, however, lose their compelling force when viewed
against the other unit applicant. Once bent, the standards must be
bent for all.
The City did not violate the Collective Bargaining Agreement
when it denied the Grievant a trial period for the Equipment
Mechanic job vacancy.
The grievance is, therefore, denied.
Dated at Madison, Wisconsin, this 21st day of February, 2001.
Richard B. McLaughlin, Arbitrator