BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 326, AFSCME, AFL-CIO
MARATHON COUNTY HIGHWAY UNION
Mr. Phil Salamone, Staff Representative, AFSCME Council 40,
AFL-CIO, 7111 Wall Street,
Schofield, Wisconsin, on behalf of the labor organization.
Ruder, Ware & Michler, S.C., by Attorneys Dean R. Dietrich
and Bryan Kleinmaier, 500 Third
Street, Wausau, Wisconsin, on behalf of the municipal employer.
Local 326, AFSCME, AFL-CIO, Marathon County Highway Union and Marathon
are parties to a collective bargaining agreement which provides for final and binding
disputes arising thereunder. The Union made a request, in which the county concurred, for
Wisconsin Employment Relations Commission to designate a member of its staff to hear and
a grievance over the interpretation and application of the terms of the agreement relating to
posting. The Commission appointed Stuart Levitan to serve as the impartial arbitrator.
the matter was held on February 20, 2001 in Wausau, Wisconsin. It was not transcribed.
filed written arguments on April 23 and reply briefs by June 11, 2001.
The union states the issue as follows:
"Did the employer violate the collective bargaining agreement by
refusing to award the position
of mechanic to the grievant? If so, what is the remedy?"
The county states the issue as follows:
"Did Marathon County violate Article 7 of the collective
bargaining agreement when it concluded
that the grievant was not qualified to fill the posted position of Equipment Services
Mechanic? If so,
what is the remedy?"
The arbitrator states the issue as follows:
"Did Marathon County violate the collective bargaining agreement
when it declined to award the
vacant position of Equipment Services Mechanic to Tom Kijak? If so, what is the remedy?"
Article 2 Management Rights
Public policy and the law dictate clearly the Department's primary
responsibility to the
community as being that of managing the affairs efficiently and in the best interests of our
employees, and the community. The employer's rights include, but are not limited to, the
but such rights must be exercised consistent with the provisions of this contract.
. . .
3. To hire, promote, transfer, assign, or retain
employees in positions within the department.
. . .
Article 3 Grievance Procedure
2. Subject Matter: Only one subject matter
shall be covered in any one grievance. A
written grievance shall contain the name and position of the grievant, a clear and concise
of the grievance, the issue involved, the relief sought, the date the incident or violation took
the specific section of the Agreement alleged to have been violated, the signature of the
3. Time Limitations: If it is impossible to
comply with the time limits specified in the
procedure because of work schedules, illness, vacations, etc., these limits may be extended
consent in writing.
. . .
5. Steps In Procedure:
Step 1: The grievant, along with a
shall orally explain their grievance to their
immediate supervisor no later than five (5) working days after the employee knew or should
have known the cause of such grievance. . .
. . .
Article 7 Job Posting
1. Posting Period: Notices of vacancies due to
retirement, quitting, new positions, or
for whatever reason, shall be posted on all bulletin boards for five (5) working days (to
consecutive weeks). The employer shall notify the union in writing in the event it decides
not to fill
a vacancy and/or abolish a position. The employer shall send a copy of the posting to the
2. Requirements: The
job requirements, qualifications, and rate of pay shall be part of
the posting and sufficient space for interested parties to sign said posting.
3. Job Award: In filling
a vacancy, the employee signing with the greatest seniority in
the Department who can qualify shall be given the position. The County shall post on the
boards the name of the employee who is awarded a posted job and also provide a copy to the
There shall be a ten (10) day working trial
period for any employee posting into a new position
in the Highway Department where the employee may exercise the option of returning to the
employee's former position.
4. Trial Period:
Employees filling promotional vacancies shall be on a probationary
period for thirty (30) days unless such employee has not yet completed an initial six (6)
probationary period as specified in Article 6(1). If such employee has not yet
completed an initial six
(6)month probationary period as specified in Article 6(1), such employee shall remain on
status until that probationary period is successfully completed. The trial period may be
mutual agreement between the Union and management where there remains reasonable doubt
regarding satisfactory performance.
. . .
This grievance concerns the county's decision to reject Tom Kijak's bid for
the position of Equipment Service Mechanic. Although Kijak was the most senior employee
the county highway commissioner determined that he was not qualified for the position,
based on the
published position description which required either two years of school in diesel
two years experience as a master heavy-duty truck technician or four years experience in
The position of Equipment Service Mechanic (ESM) is a level 1 classification in the
collective bargaining agreement, one of the four positions at the highest pay level. The
involves skilled, journeyman level mechanical work repairing a variety of automotive and
equipment, including equipment with diesel engines. As highway heavy equipment becomes
complex and computerized, the need for employees able to work on diesel engines grows
All ESM's with the county are expected to be able to handle all equipment, especially when
the single mechanic on-call.
Kijak had initially submitted an employment application with the county for the
highway worker on or about December 1, 1993. On that application he noted that he had
from Mosinee High School, had obtained a two-year associate's degree in agricultural
Northcentral Technical Institute, also known as Northcentral Technical College (NTC). He
noted that he had taken additional courses in advanced stick and wire feed welding and basic
advanced hydraulic systems maintenance and repair from NTC, along with certain safety
seminars. Kijak recounted his employment experience as follows:
Ron Wimmer Construction:
Operator-labor, 7-88 to present. "Work with & supervise in
general construction of buildings, sewer & water installation & clean up. Set up
& pour & finish
concrete, work on structural buildings. Demolition with air hammer. Patching asphalt,
walls & footings & compacting to 98% or better in 8" lifts. Repair curb &
gutter & catch basins.
Plow snow & haul snow from private lots."
Granite: Operator-labor, 4-88 to 7-88. "Work in granite pit
& rock quarry crushing
operations. General maintenance & repair of equipment. Load trucks & screener
with front end
loader. Strip & clear with chain saws & bull dozers."
City of Wausau
(Public Works): Operator I, 1-88 to 4-88. "Operate & drive
6 yd dump truck
with plow & sander. Work on tar kettle tarring cracks. Blowing out cracks with air
traffic, patch asphalt with cold mix. Shovel snow & sidewalks. Cut brush."
Construction: Operator-labor, 6-81 to
1-88. "Work in general construction,
sewer & water installation building bridge construction pouring & finishing
landscaping, snow plowing & hauling moving equipment."
In response to the direction to list any
job-related equipment he was skilled in operating, Kijak
wrote "bulldozer, crane, CruzAir backhoe, tractor backhoe, triaxle & tander dump
& low boy, 6 yard dump truck w/plow & sander, snow blower, front end loader,
Based on this application, the county hired Kijak. As of the time of the ESM posting
about July 24, 2000, Kijak was still in the county's employ, as an equipment opertor.
The county has modified the position of Equipment Service Mechanic over the past
and made several appointments under the various iterations.
On March 19, 1991, Highway Commissioner Glenn Speich caused to be posted a
Job Vacancy for the position of Equipment Service Mechanic, with the following
QUALIFICATIONS: Completion of
standard or vocational high school and one year's
journeyman level experience in mechanical repair work, or equivalent training and/or
Must have a valid Wisconsin Drivers License, Wisconsin Chauffeur's License and
Drivers License (CDL),
Two employees signed the posting, including Gary Carr. At the time, Carr had no
experience at the journeyman's level in mechanical repair work or in equivalent activities.
Nevertheless, on the recommendation of the then-shop supervisor Vern Landreth, Speich
Carr's promotion to the ESM position.
On or about September 2, 1998, Speich caused to be posted a Notice of Job Vacancy
position of Equipment Service Mechanic, as follows:
General Duties: Skilled journeyman level
mechanical work in repairing or assembling a variety
of types of automotive equipment and highway equipment. Work to be performed in
established procedures and accepted trade practices.
school graduation or equivalent preferred, supplemented by two years of
school in diesel maintenance and two years of experience as a master heavy-duty truck
OR four years of diesel engine maintenance experience. Basic knowledge and experience in
electronics on modern equipment desirable. Must furnish small tools up to 1 ¼" that
necessary to perform all light and heavy duty equipment work. Must have a valid Wisconsin
A CDL without restrictions on air brakes.
The County will award the vacant position
to the bidder with the greatest seniority provided that
the applicant can qualify for the position. A decision will be reached on this matter by
1998 and the successful bidder will be assigned to a probationary period on the new job by
All employees interested in bidding for the
position must sign in the space provided below by
3:30 PM, September 11, 1998.
Four county employees signed the posting, and the county appointed one of them,
Werner. At no time did the union raise any procedural or substantive challenges, objections
grievances to the terms of the posting.
On June 14, 1999, the highway commissioner caused to be posted another Notice of
Vacancy, identical but for the different dates and the insertion of the phrase "Please Refer to
4444 Equipment Service Mechanic" in the listing of qualifications. That Class Code
EQUIPMENT SERVICES MECHANIC
Definition of Class
This is skilled, journeyman level
mechanical work in repairing a variety of types of automotive
and heavy equipment.
Work involves performing all types of
mechanical repair work on trucks and heavy duty
construction equipment as well as specialized gasoline and diesel powered equipment,
complex engine repairs, complete overhauls, transmission, brake, and differential repairs.
performed in accordance with established procedures and accepted trade practices, and most
assignments performed under general supervision. No supervision is exercised over other
however, responsibility may be exercised over persons assisting or learning repair work.
Considerable independent judgment is exercised in determining work methods, within
departmental and trade guidelines and with careful regard for safe work practices. Work
upon assignment from the lead mechanic or a supervisor. Work is reviewed by observation
inspection of work in progress and upon completion.
Examples of Work Performed
Performs minor engine repairs including
valve jobs, engine overhauls, transmission and
Repairs and rebuilds water pumps, rear
ends, steering assemblies, electrical systems, and other
mechanical components on a variety of heavy equipment including bulldozers, front-end
graders, and large trucks.
Checks and repairs hydraulic equipment
and other components. Hard surfacing of plow
blades and salt spreaders.
Performs some auto body repairs.
Performs related work as required.
Knowledge, Skills, and Abilities
Thorough knowledge of the methods,
materials, tools and equipment used in mechanical
Thorough knowledge of the principles of
operation as well as maintenance and repair needs
of a variety of types of medium and heavy duty equipment.
Considerable knowledge of occupational
hazards and of the safety precautions necessary in
the performance of mechanical repair operations.
Ability to understand and follow oral
instructions as well as the ability to analyze and
determine the proper methods for repair of a variety of mechanical problems.
Ability to lead and guide the work of
Again, at no time did the union raise any procedural or substantive challenges,
grievances to the terms of the posting. Three county employees signed the posting, and the
was awarded to one of them, "Little Jo" Hernandez.
The highway commissioner posted another such Notice on June 24, 1999, identical
the dates. Again, at no time did the union raise any procedural or substantive challenges,
or grievances to the terms of the posting. On this occasion, the county hired Jerry Hargrove.
At the time of their appointments, Carr, Werner, Hernandez and Hargrove were all
of the bargaining unit, and all but for Carr were qualified under the terms of the relevant
On or about July 24, 2000, the county again posted for the position of ESM, again
to the three immediately prior postings but for the dates. Again, at no time did the union
procedural or substantive challenges, objections or grievances to the terms of the posting.
Two employees, Rich Thraen and Kijak, signed the posting, with Kijak being the
1/ Based on his review of Kijak's application, education and work history, Speich
1/ The record is silent on the details
surrounding Thraen's application, other than the fact that he did not receive the
determined that Kijak failed to satisfy either the educational or experience criteria.
Kijak graduated from Northcentral Technical College on May 22, 1974, with a two
degree in Agricultural Mechanics. He received one A (vocational math), 9 B's, 10 C's, and
of Satisfactory, ranking him 16 out of 21 in that major. It was the highway commissioner's
determination that this did not satisfy the educational requirement of "two years of school in
maintenance." Based on his review of Kijak's personnel file (particularly his initial
his awareness of Kijak's duties with the department, Speich also determined that Kijak did
the requisite four years experience in diesel engine maintenance to qualify him for the
Equipment Services Mechanic. Speich therefore rejected Kijak's bid to post for promotion to
On or about August 14, 2000, the union grieved, claiming "the job was not awarded
person the union feels qualifies for the position, that person being Tom Kijak." The
held in abeyance while the parties sought a mutually satisfactory settlement, but was
September 6 when the parties determined they could not reach a voluntary settlement.
By an undated letter, Speich informed the AFSCME shop steward that the grievance
denied, applicant did not meet qualifications for position of Equipment Service Mechanic."
advanced the grievance to the next step.
On September 27, 2000, Glenn Kafka of Kafka Granite submitted a letter of
for Kijak, as follows:
This letter of recommendation is for Tom Kijak, whom I have
known personally for over 20
years. In the 18-month period of employment dating back in the late 1980's, Tom served
both as a
full-time and a part-time employee. Tom was hired as a mechanic for heavy equipment
dump trucks, screening plants, crushing plants, conveyors, engines, and other duties such as
in the mechanic shop. He also doubled as an operator for the heavy equipment mentioned
Tom is a very reliable, knowledgeable and honest individual
and I feel very confident that he would
strongly qualify as a small and heavy equipment mechanic.
If you have any questions, please contact me at my office number 715/687-2423.
Also on September 27, 2000, Jeff Burnett of Wimmer Construction submitted a letter
County Personnel Director Brad Karger as follows:
As Divisional Manager for Wimmer Construction, Inc., part of
Mr. Kijak's duties involved
working in the shop during the winter months. He has shown mechanical ability and aptitude
Examples of work would be trouble
shooting and repairing electrical and hydraulic systems.
Rebuilding pumps, transmissions diesel and gas engines, changing clutches, brakes, springs
trucks and heavy equpment. From 1981-1991 Mr. Kijak had accumulated approximately
of shop experience.
On October 5, 2000, Karger wrote to AFSCME Staff Representative Phil Salamone
decided to deny Grievance #3 (Tom Kijak) as there has been no violation of the Labor
The relevant section of the Labor
Agreement is Article 7 Job Posting (3) Job Award:
In filling a vacancy, the employee signing
with the greatest seniority in the Department who can
quality shall be given the position.
The facts of the dispute are:
1. The position of Equipment Services
Mechanic was posted on 7/24/00.
2. The posting established these
"High school graduation or equivalent
preferred, supplemented by two years of school in diesel
maintenance and two years of experience as a master heavy-duty truck technician; OR four
diesel engine maintenance experience .
3. Two employees (Tom Kijak and
Rich Thraen) signed the job posting requesting
consideration for the position.
4. The Highway Commissioner
determined that neither candidate met the minimum
qualifications for the position.
5. Tom Kijak's grievance was put on
hold while creation of an apprentice program was
discussed. Unfortunately, that discussion failed to result in any agreement.
During the grievance meeting, the Union
said it believed that Tom Kijak had the education and
job experience to qualify for the position. Tom Kijak subsequently sent me several
summarizing his relevant education and work experience. From those documents, I have
received a degree in Agricultural Mechanics from Northcentral Technical College
has more than 2 years of diesel mechanic experience with Wimmer Construction
and Kafka Granite, but does not have 4 years of experience in diesel mechanics.
Here is how I see this: Tom Kijak is close
to meeting the minimum qualifications for the
Equipment Service Mechanic position but he does not have either a degree in Diesel
the Master Heavy-Duty Truck Technician certification. I suspect that many of the classes for
agricultural mechanics and diesel mechanics programs are the same put the educational
not exactly the same. Thus, while I am left with a very favorable impression of Tom Kijak
as a person
and an employee, I have decided to deny the grievance as the Highway Commissioner has
determined that he is not qualified for the position.
Upon receipt of this letter, Salamone informed Karger the
was advancing the grievance
to the Personnel Committee. The Personnel Committee denied the grievance at its meeting
November 6, 2000.
In preparation for the arbitration hearing, the Union retained the services of Allen
consultant with significant educational and professional experience in diesel repair and
Gresch toured the highway shop and interviewed certain union and supervisory personnel on
14, 2001. He later submitted a report, as follows:
. . .
Due to the large variety of equipment and equipment
manufacturers the mechanics tend to
specialize to some extent on equipment systems and makes. As with most shops of this size,
troubleshooting, most equipment components are sent out for rebuild or exchange rather than
rebuild. This is more cost effective and usually provides faster turn around time.
As relates to the posted job specification, it
is very important to note that less than 20% of
mechanic time is devoted to repair of diesel engines exclusively.
The county provides for a 30-day trial
period for all new mechanics for them to try the job and
the county has the opportunity to evaluate how well they can perform. If the new position
work out for either party, the employee can return to his prior position with no penalty.
Interviews with other mechanics:
All felt that regardless of posted
qualifications, Tom Kijak should be given the opportunity to try
for this new mechanic position. All have worked with Tom and/or heard positive comments
his mechanical aptitude and abilities and feel he has adequate experience to be successful on
. . .
qualifications for Equipment Services Mechanic-Marathon County
"High school graduation or equivalent preferred, supplemented by
two years of school in diesel
maintenance and two years of experience as a master heavy duty truck technician; or four
diesel engine maintenance experience."
While Marathon County has the option of writing the job
specification as they wish, it would
appear that this spec does not address the very broad qualifications needed to successfully
the daily duties likely to be
encountered by any mechanic in the
Marathon County Shop. As related by the shop supervisor
and mechanics these duties include but are not limited to the troubleshooting and repair of:
Gas engines two and four cycle
Diesel engines two and four cycle
Clutches and torque converters
Manual and automatic/power shift transmissions
Mechanical drive lines
Differentials and final drives
Tires and track systems
Welding experience operator capabilities on all county equipment
is also needed for this position
It should be noted that diesel engines account for only a small
portion of the total job skills
needed to successfully perform this job. Of far more importance is the fact that a Marathon
Shop Mechanic must have a wide variety of previous job experience servicing heavy duty
Mr. Kijak's previous documented work
experience includes four years general maintenance,
troubleshooting, and repair of exactly the type of equipment used by the County when he
Kafka Granite and Wimmer Construction. He has additional mechanical experience with
Exploration and over 26 years experience as an operator of construction, drilling and
The posted job specification is very tightly
written around the diesel mechanic position to the
neglect of all the other duties that are needed for the Equipment Services Mechanic position.
some of the existing mechanics probably would not be able to meet the new spec as written.
In my previous seven years experience as
Service Manager for Marathon Implement and Gresch
Implement I have had the opportunity to interview and hire approximately 25 mechanics to
service, troubleshoot, and repair farm, light and heavy duty industrial equipment. In my
with Caterpillar and Cummins diesel engines associated with city, county, and state
agencies, private and public trucking
companies, construction companies, etc. I was frequently
in contact with shop/fleet managers who hire mechanics. There is absolutely no doubt that
experience would very strongly favor hiring Mr. Kijak who has a broad general shop
someone else who may be more highly specialized or had more formal training in just one
expertise. He has all the qualifications needed to successfully complete the daily job duties
determined in the fact finding visit to the Marathon County Shop.
The job spec for the posted position is
written too tightly around the diesel mechanics duties
to the neglect of all other job duties likely to be encountered.
Mr. Kijak is well qualified to fulfill the
actual daily job duties in the Marathon County Shop.
1- Hire Mr. Kijak to fill the posted
mechanic position. If there is any doubt he can fulfill
the job duties, perhaps a longer probationary time period can be negotiated.
2- Provide the opportunity for
additional in-house and/or off site training for diesel
mechanics. Major engine manufacturers offer one day seminars for this training as well as
more specialized one week sessions at their headquarters in various Wisconsin cities. This
would be very beneficial long term for the county. Training in other areas should also be
considered to upgrade mechanic skills with the changes in new equipment acquired by the
county. An inventory of mechanic skills should be initiated to discover whether there are
shortcomings, and the mechanics offered the opportunity to upgrade their skills.
POSITIONS OF THE PARTIES
In support of its position that the grievance should be sustained, the union asserts and
The union does not maintain a burden of proving that the contract
has been violated. Despite
the fact that this is a contract interpretation type dispute, a logically neutral approach would
there would be no burden to be borne by either side. Or (arguably) that the burden of proof
by the employer is significantly greater in light of the fact they rejected an applicant with
within the bargaining unit in favor of a bidder from outside the unit.
The grievant clearly meets and/or exceeds
the minimum qualifications for the position and on that
basis should appropriately be awarded the position. The principal reason the grievance should
sustained relates to the simple fact that the grievant is clearly qualified for the posted
position, in that
he clearly possesses all of the listed qualifications.
It is not surprising that the grievant was
initially determined to be unqualified for the position,
in that he simply was not fairly considered by the employer's process. Actually, the lack of
consideration exceeded unfair, and the conduct of the initial interview was a monumental
abomination. The highway commissioner's high-handed conduct, not even conducting the
cursory review of the education and/or experience of the grievant, speaks loudly for itself
be soundly rejected by the arbitrator. In fact, it can reasonably be argued that the
conduct was so monumentally outrageous, even higher levels of management could
see fit to credit it.
Although the personnel director ultimately
concurred with the highway commissioner's
determination (which he politically had to), he did indicate the grievant was close to meeting
qualifications; one can only speculate as to the outcome had the personnel director not
overturn the brash and autocratic commissioner's initial decision.
The past practice of the parties supports the
position advanced by the union, in that the listed
qualifications for the position of Equipment Services Mechanic have been relaxed and/or
other interested employees in the past. For example, Gary Carr signed a very similar
posting in 1991
and was awarded the position, despite having absolutely no formal mechanical training or
purportedly required by the posting. The difference in the way the commissioner treated
Kijak represents a telling and literal about-face in attitude from an enlightened and fair
approach into an approach which is more reminiscent of a 1930-40's type dictatorship. The
is rather striking.
The employer should have used the provision in the collective
bargaining agreement which
provides for a trial period where employees with debatable qualifications can have an
demonstrate their ability to perform the range of duties and responsibilities of the position.
of arbitrators have reasoned that in questionable cases such as this, a bidder should be given
opportunity to prove their ability to perform the job. If the grievant fails to perform the
duties adequately, he can be returned to his former position without any undue harm to the
The arbitrator should give considerable
weight to the review and determination of the union's
consultant, who was the most recent instructor of the same program from which the grievant
his mechanic training. After a detailed and careful independent review, the consultant
the grievant was well qualified to fulfill the actual daily job duties, and that he should be
seems more than just happenstance that the more careless, arbitrary and biased the review of
grievant's background, the less he was deemed qualified; the more professional, detailed and
independent the review, the more qualified he became.
Accordingly, the grievance should be
sustained, and the grievant awarded the position and made
In support of its position that the grievance should be dismissed, the county asserts
The county did not violate the collective bargaining agreement
when it concluded that the
grievant was not qualified for the position of Equipment Service Mechanic, and, therefore,
award him the position. The county appropriately exercised its authority to make hiring
reasonably determined that the grievant was not qualified. Consequently, the union's claim
It is well established that the employer
possesses inherent authority to set minimum job
qualifications and make employee qualification determinations unless it has bargained that
away. Numerous arbitrators have recognized that an employer's determination in this regard
be deferred to and should not be disturbed unless the employer has exercised its authority in
arbitrary and capricious manner. The management rights provision of the
collective bargaining agreement explicitly
confers upon the county the authority to set minimum
job qualifications and to determine an employee's qualifications.
The county did not violate the collective
bargaining agreement when it reasonably concluded that
the grievant was not qualified to serve as an equipment service mechanic and therefore did
him the position.
Pursuant to its inherent authority, the
county established minimum job qualifications for the
subject position. Pursuant to arbitral law, the county is vested with the exclusive authority to
determine the grievant's qualifications for the subject position. The county's determination
grievant was not qualified for the subject position was not arbitrary or capricious,
The county's determination that the grievant
lacked the requisite educational background in
diesel maintenance was not arbitrary or capricious, discriminatory or unreasonable, in that
grievant had neither two years of school in diesel maintenance or two years experience as a
heavy-duty technician. The agricultural mechanics course the grievant took in 1973-74 at
Northcentral Technical College does not satisfy the educational requirement.
The county's determination that the grievant
lacked the requisite work experience was not
arbitrary or capricious, discriminatory or unreasonable, in that the grievant fell far short of
of diesel maintenance experience. Indeed, it is the county's position that the grievant does not
even one year of diesel maintenance experience, much less the required four years.
Because the collective bargaining agreement
sets no limits on the county's inherent managerial
authority to set minimum job qualifications and to make employee qualification
union must prove that the county's determination that the grievant did not satisfy the
for the subject position was arbitrary and capricious. The union has failed to meet this
The Union Response
While the union does not dispute that the employer has the right
to set minimum qualifications
for a position, those rights are not unlimited and must be exercised in a good-faith, fair and
non-discriminatory manner. All employees
should be treated uniformly in an
even-handed manner which is reasonable under the facts.
The union reasonably asks whether a
procedure where an interview of an applicant is begun by
the decision-maker announcing the he will not be selected before examining relevant
experience and references could be considered anything but unreasonable, arbitrary or
conduct. The union also questions how an employee with absolutely no qualifications can be
considered for a position where an employee with many relevant qualifications is excluded
considered anything but highly discriminatory.
While the grievant and Gary Carr are both
able-bodied Caucasian men, there could be little
question but that there was unequal or unfair application of policy to the grievant
Discrimination is discrimination. While the record does not establish the basis for the
it is hardly arguable that it occurred considering the fact that the same (or very similar) set
qualifications were applied by the same employer to the same position by the very same
agent of the
employer. Yet despite the fact that the grievant's qualifications were head and shoulders
of Carr, Carr was successful while the grievant was not. In fact, it is hardly likely that the
would have even filed a grievance had Carr not been awarded the position because he
of the listed qualifications. Not surprisingly, the employer brief is silent with respect to
While it may technically be arguable as to
whether the grievant precisely met each and every one
of the listed qualifications to the letter (the union maintains that he did), even the employer's
professional personnel administrator acknowledged that he was at least "close" to doing so.
The record is absent any evidence or formal
documentation of the commissioner's review. In fact,
other than his letter denying the grievance, there is no record as to why the grievant was
denied the position other than the statement that he did not meet the qualifications. But the
clearly reflects that these materials were not reviewed until after the grievance was filed.
In a desperate attempt to set the bar at a
low level, the county maintains that its determination
that the grievant was not qualified was not arbitrary, capricious, discriminatory or
what could possibly be more irrational (and also cruel and insensitive) than to indicate to a
applicant at the outset of
the interview, prior to any review, that
there was no way he will get the position. And then
providing no basis for the decision.
The employer's selecting an employee with
virtually no qualifications for a position, yet
summarily denying it to another employee who the employer believes to be "close" to
high-handed, arbitrary and capricious conduct which the arbitrator should not credit. The
dismally fails to reach even the modest and self-serving notion of setting the standard at a
The employer's flawed notion that the
grievant admitted he had only two to three months of
work experience as a mechanic was disputed by the union witnesses and documents in the
The employer apparently relied upon the grievant's initial employment application, but as the
testified, he did not list his mechanic experience because it did not relate to his application
highway worker position.
Also, the letters of recommendation were
written to the personnel director rather than the
highway commissioner because the commissioner conducted a kangaroo interview where he
announced that he had already determined that the grievant was not qualified. It was the
director who conducted a more serious interview and asked the grievant to provide
such as these letters.
This is not even a close case. It is an
important grievance. If it is not sustained, it is highly
probably that a longstanding avenue of advancement for Marathon County highway
effectively be blocked.
The grievance should be sustained.
The Employer's Reply
The union brief mischaracterizes arguments as facts. It is clearly
argument, not fact, for the union
to state that the ESM position is awarded on a "liberal basis." To the contrary, applicants
qualified for the position in order to be awarded it. Of the four other employees who posted
position, three were all subjected to the same qualifications as the grievant and all satisfied
qualifications; the fourth, who was not subjected to the same qualifications, was not awarded
position by the highway commissioner.
The union also errs in stating as a fact that
"only about 20%" of the mechanical work is
exclusively distinctive to diesel engines. This conflicts with the testimony of union witness
who testified that up to 30% percent, and with the testimony of supervisor Korpa, who stated
more than 30% is on diesel engines.
The union also errs in claiming that the
grievant performed a "significant degree" of mechanical
service while working in the county asphalt plant, in that the county introduced evidence that
grievant did not perform such work.
The union further errs in claiming that it
was unrebutted that Speich began his interview with the
grievant by saying, "There is no way in hell I will award you the mechanic job." Speich's
rebuts this statement.
The union must prove that the county's
determination that the grievant did not satisfy the
qualifications for the ESM position was arbitrary, capricious, discriminatory or unreasonable.
Despite the union's attempts to confuse the
issue, seniority is not an issue in this dispute; whether
the grievant is qualified for the ESM position is the issue. Further, the union's position that
not bear the burden of proof directly conflicts with the well-established arbitral principles
cited in the
county's initial brief. The collective bargaining agreement does not contain any language
county's inherent authority to set minimum job qualifications, so the only way the union can
is to establish that the county was acting in an arbitrary, capricious, discriminatory or
manner in its decision that the grievant did not satisfy those qualifications. The cases the
to support its position that it does not have the burden of proof in this dispute either are not
applicable or actually support the county's position that the union has the burden of proof.
The grievant clearly does not satisfy the
minimum qualifications for the ESM position, in that he
has neither the necessary educational background in diesel engine maintenance nor the two
experience as a master heavy-duty truck technician. The grievant also fails to satisfy the
requirement of four years of diesel engine maintenance experience.
The county properly considered the
grievant's qualifications and determined that they did not
satisfy the minimum requirements for the position. The highway commissioner did review
grievant's education and work history, and
consulted with the shop supervisor.
Further, the job interview was not confrontational.
Further, past practice does not support the
union's position that the listed qualifications for the
ESM have been relaxed and/or ignored for other employees. Hernandez, Werner, Hargraves
grievant were all subject to the same standards, and all but the grievant satisfied those
posted standards were different when Carr sought the position in 1991, and it was the former
supervisor Landruff, not commissioner Speich, who promoted Carr.
Also without merit is the union's claim that
the current qualifications shut the door on bargaining
unit members seeking the position. Hernandez, Werner and Hargraves were all in the unit
posted up into the position.
The case law cited by the union is not
applicable as it discusses the reasonableness of job
qualifications, which the arbitrator ruled was not an issue in this dispute.
Pursuant to the collective bargaining
agreement, unqualified applicants never advance to the trial
period. The union's argument here illustrates another attempt to acquire a benefit through
arbitration when such benefit must be gained through collective bargaining.
The arbitrator should give absolutely no
weight to the testimony of Gresch, whose testimony and
experience relate only to the reasonableness of the job qualifications of the ESM position.
testimony is thus totally irrelevant because the issue here is not the reasonableness of those
qualifications, but rather whether the grievant met those minimum standards. Gresch is not
on this point, and his testimony deserves no weight.
Because the evidence demonstrates that the
county reasonably concluded that the grievant did
not satisfy the minimum job qualifications, the grievance should be dismissed in its entirety.
The union has used exceptionally strong language to describe the reason for and
county's decision to reject the grievant's bid for promotion into the Equipment Service
position. It calls the county's "cruel and insensitive" conduct "a monumental abomination
monumentally outrageous," that it cries out for reversal.
The union has also made a strong claim that there may be a workplace-wide impact
decision, alerting me that denial of the grievance makes it "highly probable" that the
provided in the collective bargaining agreement "will be effectively blocked."
However, neither facts nor law support either this sense of outrage or this state of
The union makes three basic arguments why I should sustain the grievance
that Kijak was
qualified under the terms of the posted position description; that other, less qualified
promoted into the ESM position, and that the terms of the position description were unduly
restrictive and imposed onerous burdens on bargaining unit personnel seeking to advance. I
address each argument in turn.
Prior to doing so, however, I must address the union's argument that it bears no
proof or persuasion in this proceeding. The union contends that a "logically neutral
be that there is "no burden to be borne by either side," or that the burden borne by the
significantly greater" because it rejected an internal candidate for one from outside the
After a thorough review of the cases the union has cited in support of its analysis in
regard, I have concluded that its construct as to burden of proof and persuasion is contrary to
terms of the parties' collective bargaining agreement and generally accepted arbitral
The collective bargaining agreement, Article 2, Section 3, explicitly grants to
rights to "hire, promote, transfer, assign or retain employees in positions within the
While those rights "must be exercised consistent with the provisions of this contract," this
authority to management sets the floor for further consideration. Even cases which
the union itself
cites disagree with the union's theory as to proof and persuasion.
"Management's decision with respect to the award of a posted job among competing
is entitled to the presumption of validity," an arbitrator wrote in Feco Engineered Systems,
1282 (Miller, 1988). "The burden is upon the Union to show that the management judgment
Similarly, it has been held that the determination of whether an applicant met the
qualifications was "a factual matter to be initially determined by the Company. So long as
selection is not arbitrary, capricious, discriminatory or unreasonable, the Company's decision
must stand." Mountain States Tel. & Tel. Co, 70 LA 729 (Goodman, 1978).
Both of these cases
were cited by the union, and reflect what I believe the prevailing attitude among arbitrators
to be on
The collective bargaining agreement awards a vacancy to the most senior
"who can qualify." Pursuant to the management right cited above, the county has since 1990
promulgated position descriptions for the ESM listing certain qualifications. If the
reasonable and Speich's negative evaluation of Kijak accurate 2/, then Kijak was not
qualified for the
position and the grievance must be denied.
2/ The Union also contends that a
discriminatory attitude on Speich's part so corrupted the process as to so compromise the
to make it fatally flawed. This question is a subset of the larger issue of whether the
underlying evaluation was or was not accurate.
Were the qualifications listed in the July 2000 Notice of Vacancy
The union challenges the validity of the existing position description for the ESM,
that it is unduly restrictive and sets too high a standard for members of the bargaining unit to
The union also offers the testimony of its retained consultant, who advised that the job
were too tightly written around the diesel mechanic position to the neglect of the position's
This argument fails on several grounds. First, the time has long passed for the union
challenge this position description. The first Notice of Job Vacancy for the position of
Service Mechanic with the list of qualifications that confronted Kijak was published on
2, 1998; another was published on June 14, 1999, and a third ten days later. At no time
September 1998 and June 1999 did the union raise any procedural or substantive challenges,
objections or grievances to the terms of the posting. On July 24, 2000, the county again
the position of ESM, again with a list of qualifications identical to the three immediately
postings. Again, the union failed to raise any procedural or substantive challenges,
grievances to the terms of the posting.
The collective bargaining agreement requires that grievances be conveyed
orally to an
immediate supervisor no later than five working days after the employee knew or should
the cause of the grievance. Although the 1998 and 1999 postings were independent actions
not trigger the time limitations applicable to the 2000 posting, their occurrence did serve to
union and the bargaining unit of the employer's attitude and intent in defining the terms of
description. Thus, the union and bargaining unit were well-prepared in July 2000 to
terms of the next posting if they felt it
improper. Had the union challenged the substance of the notice of vacancy within five
days of its
issuance, the question of the validity of the stated qualifications would properly be before
me. But it
did not do so.
I have not evaluated what merit or standing a timely challenge to the position
would have had, or how persuasive the consultant's critique of the listed qualifications would
I have evaluated, however, the standing of an untimely challenge. The union had
30 to grieve the terms of the posting; it did not do so then, and it cannot do so now.
Accordingly, the union cannot sustain its challenge to the reasonableness of the
qualifications as stated in the notice of vacancy.
I find, therefore, that the county was within its Article 2, Section 3 rights in
candidates for the ESM position against the specific terms of the July 24, 2000 notice of
especially its requirements for education and/or experience.
Unsuccessful in its challenges to the terms of the notice, the union now has only its
to the way the county administered those terms.
Was Speich's negative evaluation of Kijak accurate?
There are two paths an applicant could have follow to establish she or he was
the terms of the notice of vacancy education plus experience, or experience alone.
The first way a candidate "can qualify" under the notice of vacancy is by having "two
of school in diesel maintenance and two years of experience as a master heavy-duty truck
Did Kijak have two years of school in diesel maintenance?
No. His two year associate degree from Northcentral Technical College (NTC) in
agricultural mechanics does not constitute ""two years of school in diesel maintenance."
In the Diesel and Heavy Equipment Technician program currently offered at the
Wisconsin Technical College (NWTC) in Sturgeon Bay, 17 of the 21 required courses have
"diesel" in their title 3/. This program, designed to "train students to
3/ The complete
curriculum includes Diesel Engine Fundamentals, Diesel-Elect Fundamentals, Welding-Metal
Working Procedure, Math
1-Diesel, Math 2-Diesel, Diesel-Chassis/Suspension/Steering, Diesel Brake Systems, Diesel
Preventive Maintenance, Diesel-Electrical Systems,
Science-Mechanics, PC Operations-Intro, Diesel Engine Systems, Diesel-Fluid Power
Systems, Diesel-Schematic Interpretation, Diesel-Track Drive
Systems, Diesel Equipment Service/Maintenance, Diesel-Refrigeration/Air Conditioning,
Diesel Engine Troubleshoot, Diesel-Power Trains,
Communication-Diesel and Economics-Basic.
service and repair diesel powered equipment" is an example of "two years of school in
maintenance." By contrast, none of the 23 courses Kijak took were
identified in any way as involving
diesel engines -- but his transcript does include credits for such courses as consumer
implement shop, and vocational math. Kiajk's program, as is clear from the transcript, was
Agricultural Mechanics. 4/ While some of the course work was undoubtedly
4/ Kijak's course work
included Implement Fundamentals 1 and 2, Implement Shop 1 and 2, Parts Nomenclature and
Manual Int, Basic
Welding for Ag Mechanics, Applied Comm 1 and 2, Vocational Math 1, Consumer
Economics, Man-Society-Work, Internal Combustion Engine,
Engines Shop, Basic Hydraulics, Applied Science, Tractor Power Tran, Tractor Shop,
Applied Hydraulics, Effective Selling and Employ
relevant to the job duties of ESM position (e.g., two courses in hydraulics), Kiajak's
course of study
at NTC, even as supplemented by the additional course work noted above, did not constitute
years of school in diesel maintenance."
That a 1974 associate degree in agricultural mechanics does not satisfy the
two years of school in diesel maintenance was further supported by Speich's testimony about
considerable technological changes that have come to the agricultural and highway industries
the past 26 years. Speich testified, on his personal knowledge, that the farming industry a
ago relied heavily on gasoline powered vehicles and implements, technology far different
diesel equipment. I find Speich's testimony that a course in agricultural mechanics from the
1970's would not prepare someone for serving as a technician on diesel equipment in the
to be credible.
Indeed, there have long been separate programs for gasoline and diesel equipment; as
Werner's application indicates, the vocational system's Eau Claire campus (identified as the
One Technical Institute) offered a course in Diesel Mechanics at least as far back as 1977,
years after Kijak took the agricultural mechanics course in Wausau.
Having failed to satisfy the educational requirement, Kijak must demonstrate four
diesel engine maintenance experience before he "can qualify" for this promotion. Can he
his record of employment that he has "four years of diesel engine maintenance experience,"
required by the notice of vacancy?
Kijak has considerable experience at a variety of positions in the
industry, some of it highly relevant to the position of ESM. Indeed, some of Kijak's
even in the precise area of diesel engine maintenance. In its aggregate, that experience may
not make him able to do the job of being an ESM. But only if it adds up to
four years at diesel engine
maintenance does it mean he "can qualify" under the terms of the notice of vacancy.
When Kijak sought a highway worker position in 1993, his application listed 12 years
employment experience as an operator/laborer, primarily in general and heavy construction,
and water installation, landscaping and roadwork. The duties he listed most frequently were
distinct from those of "diesel engine maintenance," as required by the notice of vacancy.
reference to maintenance and repair of equipment at all was as part of a three-month stretch
Kafka Granite in 1988. As one arbitrator has commented in a similar case, "the most
statement as to experience is that contemporaneous statement made by the grievant in his
application." Mueller Co., 95 LA 111 (Kirby, 1990).
As commissioner at the time Kijak was hired and consistently since, Speich was
Kijak's employment history as indicated on his application. He was right to conclude that
application does not, on its face, come close to establishing four years experience in diesel
Kijak testified at hearing that he also had experience as a mechanic during his second
with Wimmer Construction 1988-1993, but that he "evidently didn't put it in there, for
reason." The union also offered a letter it had submitted to county personnel director Brad
during the grievance process, whereby an officer of Wimmer Construction represents that
accumulated approximately 2½ years of shop experience" during the period 1981-1991.
With all due respect to the signatory of this letter, I find that the inherent difficulties
recreating and analyzing data from assignments 10-20 years old makes this attestation to
experience less than persuasive.
For its part, the Kafka firm also supplied a letter in 2000, crediting Kijak with 18
full and part time work as a heavy equipment mechanic and operator "back in the late
that this letter is more than a decade after-the-fact, and that its description matches neither
duration nor the duties that Kijak listed on his employment application in 1993, I find this
to provide meaningful support for the union's case.
As commissioner throughout Kijak's seven years with the county, Speich was also
his duties as an equipment operator, and the extent to which they do or do not qualify as
maintenance. I find credible Speich's testimony that Kijak has done "some limited mechanic
at the asphalt plant," but that he "didn't have anywhere close to two years experience in
Notwithstanding his failure to meet the educational or experience
Kijak have been awarded the ESM position anyway?
While maintaining that Kijak easily met the criteria set by
the list of qualifications, the union
makes further arguments that, even if he didn't meet those terms, the county still should have
awarded him the position.
First, the union contends that Speich did not properly consider Kijak's qualifications.
Describing Speich's interview with Kijak to be "a monumental abomination so
outrageous," the union cites a hornbook dictionary to illustrate how a proper
should have been conducted.
The union's problem, however, is that the dictionary explanation does not support the
theory. According to Roberts' Dictionary of Industrial
Relations (Third Ed., BNA 1986, pp. 184-185), employment interviews
"should serve as a final check" and are "generally used after
measures of fitness have been obtained and a final decision has to be made ."
Here, of course, the employment interview took place in the context of the applicant
provided the requisite measures of fitness for promotion.
Regardless of the scope and purpose of the interview, any professional encounter
management and labor should be marked by mutual respect. If Speich conducted his
Kijak in the combative and confrontational manner as the union contends, that would have
unfortunate and inappropriate. But even if Speich's conduct did justify the union's harsh
I do not necessarily find that it did such an attitude would not, by itself, serve to
give Kijak the
education and/or experience necessary for promotion.
The union attributes Speich's purportedly confrontational approach in the interview to
alleged anti-union attitude.
I understand that the union may rightfully feel it is unfair of me to sustain an
objection to this
line of questioning at hearing and then summarily dismiss the allegation in my award. The
wanted to ask Speich, "you don't like the union, do you?" I sustained the county's objection
reasons. First, I did not feel that the issue was relevant to the question before me, namely
the county violated the collective bargaining agreement; as the union is well-aware, there
independent forum to pursue the complaint of such a prohibited practice under secs.
1 and 3, Wis. Stats. Second, I did not feel the union had even made a
prima facie case that Speich
indeed did harbor such an invidious motive.
No such prima facie case could be made
because of the contrary evidence in the record,
namely that the previous four promotions to the position of ESM all promotions
which Speich made
were of existing bargaining unit members. Indeed, as will be discussed below,
promoted a member of the bargaining unit who was not qualified.
This is why I also fail to follow the union's argument on the workplace-wide
this matter. The union has asserted that promotions under the collective bargaining agreement
"effectively be blocked" if I deny this grievance. When four out of five promotions are of
unit members, it is hard for the union to establish that promotions of bargaining unit
effectively be blocked" if this grievance is not sustained.
Asserting a "past practice of the parties," the union argues that the county has
right to require strict compliance with the full terms of the posting because it previously
to the ESM position an employee who did not meet the terms of the posting, namely Gary
The union is correct that Carr clearly failed to satisfy the 1991 posting in that
5/ The union misstates
the record in asserting that the listed qualifications for the position "have been relaxed and/or
ignored for other
interested employees in the past." (emphasis added). As there is only a single such incident
in the record, the reference to "employees" is a
misleading exaggeration. Indeed, the union cites only the incident involving Carr,
notwithstanding its reference to "employees."
he had neither a year's journeyman-level experience in mechanical
repair work or equivalent training and/or experience. The union is incorrect,
however, in concluding that this one episode invalidates the county's ability to rely on the
terms of the posting.
It is well-established that a past practice only blossoms when the
parties engage in a practice that is 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. See,
Celanese Corp. of Am., 24 LA 168, 172 (Justin, 1954). A single episode over a decade ago,
which has not been followed on three subsequent and
recent occasions, does not constitute a past practice.
The union also draws another incorrect conclusion in claiming
that Carr's inadequacies somehow make Kijak qualified. Carr testified
that he had neither the education nor the experience when he got the job. That much is true.
But the union cannot extrapolate from this that Kijak
himself was qualified. Certainly, Kijak was more qualified than Carr; but that is far short
from establishing that he was qualified as measured
objectively against the published standard. Yet that is exactly the claim the union makes,
asserting that "the testimony of Carr established the
Grievant to be an overwhelmingly trained and experienced candidate." The testimony of
Carr established that Carr got a job he wasn't qualified
for (as defined by the published posting). The testimony of Carr establishes nothing at all
about the objective qualifications of Kijak. The fact that
Carr got a job he wasn't qualified for does not accomplish the same end for
In Mueller Co., 95 LA 111 (Kirby, 1990), the employer had, at
various times over a 27-year period, waived the collective bargaining
agreement's requirement for four years actual experience in bidding for certain jobs. As in
the instant case, the union there argued that this
established a past practice which prevented the employer from applying the experience
requirement to the grievant. The arbitrator disagreed,
explaining that "(p)ast practice is used to flesh out the meaning of ambiguous language or an
agreement or a practice where no language exists.
The language in dispute here is unequivocal as to qualification. In the absence of
overwhelming evidence of a practice in terms of frequency and
numbers, an argument of a waiver of these qualifications is not convincing." That one or
more bidders were allowed without the required
experience was "not sufficient evidence of frequency and numbers to establish a past
practice," the arbitrator wrote in denying the grievance.
The union also notes that the collective bargaining agreement requires that an
employee filling a promotional vacancy "shall be on
a probationary period" for at least thirty days. The union suggests that Kijak should be
accorded this "probationary trial period," and that "if he
fails to perform the expected duties adequately, he can be returned to his former position
without any undue harm to the employer's operation."
In support of this theory, the union cites an arbitral hornbook to state that a trial period
should be granted "if there is a reasonable doubt as to
the ability of the senior employee and if the trial would cause no serious
There are two problems with this argument. The first is that the
trial period in Article 7, Section 4 is not an opportunity for a employee
to prove qualifications when management isn't sure about the promotion; the trial period is
an opportunity for management to evaluate the
performance of someone who has already qualified and been promoted. These are quite
Furthermore, the facts in this case are contrary to a critical
aspect of the union's analysis that an unsuccessful trial period would be
"without any undue harm to the employer's operation."
Under the county's standard scheduling, there are times when an
Equipment Service Mechanic has the sole responsibility for ensuring
the safety and performance of the highway department's many vehicles. At some time or
another, every ESM serves as the only ESM on-call.
Having as the sole ESM on duty someone who is not qualified could endanger fellow
employees and members of the public, and risk serious
damage to expensive and complex machinery. Such a potential for disruption and danger
does not fit the union's description of being "without
any undue harm to the employer's operation."
The union also asks me to give "considerable weight" to the
review and determination of its outside consultant, whose "detailed and
careful independent review" supported hiring Kijak.
There are again two problems with this request. The first is
that, notwithstanding the consultant's obvious experience and presumed
integrity, his was not an independent review. It was commissioned and paid for by the
The second problem with asking me to rely on its consultant's
opinion that Kijak was "well qualified to fulfill the actual daily job duties"
of the position is that it reflects a fundamental misunderstanding of my role. My role is not
to identify the "actual daily job duties" of the ESM
position and make a determination as to whether or not Kijak was "well qualified" to
perform those duties. Quite to the contrary since I have
determined the qualifications identified in the notice of vacancy to be valid, my task is to
determine whether the employer acted in an arbitrary,
capricious or unreasonable manner in determining that Kijak failed to satisfy the
qualifications listed in the published position description.
It did not.
Kijak had neither the education nor the professional experience to meet the terms of
the valid notice of vacancy, and thus did not qualify
for promotion. The single instance of promoting an unqualified bargaining unit member in
1991 does not establish a past practice that precludes
the employer from applying the terms of the notice of vacancy.
Accordingly, on the basis of the collective bargaining
agreement, the record evidence and the arguments of the parties it is my
That the grievance is denied.
Dated at Madison, Wisconsin this 6th day of September,
Stuart Levitan, Arbitrator