BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
ONEIDA COUNTY COURTHOUSE,
LOCAL 158, WISCONSIN PROFESSIONAL POLICE
COUNTY OF ONEIDA, WISCONSIN
Mr. Mark R. Hollinger, Katarincic and
Hollinger LLC, Attorneys at Law, 205 East Wisconsin
Avenue, Suite 330, Milwaukee, Wisconsin 53202, appearing on behalf of Oneida County
Local 158, Wisconsin Professional Police Association, referred to below as the Association.
Mr. Carey L. Jackson,
Personnel Director, Oneida County, Courthouse Building, P.O. Box 400,
Rhinelander, Wisconsin 54501-0400, appearing on behalf of County of Oneida, Wisconsin,
to below as the County.
The Union and the County are parties to a collective bargaining agreement which was
at all times relevant to this proceeding and which provides for the final and binding
certain disputes. The parties jointly requested that the Wisconsin Employment Relations
appoint an Arbitrator to resolve grievance 00-392, filed on behalf of the "Oneida County
Employee's Association." The Commission appointed Richard B. McLaughlin, a
member of its staff.
Hearing on the matter was held on June 6, 2001, in Rhinelander, Wisconsin. No transcript
hearing was prepared. The parties filed briefs and waived the filing of reply briefs by
The parties did not stipulate the issues for decision. I have determined the record
Does the doctrine of claim preclusion govern grievance
If not, did the County violate Article 6 of
the Collective Bargaining Agreement when it
awarded Kim Gauthier the position of Social Services Aide?
If so, what is the appropriate remedy?
ARTICLE 6 SENIORITY PROMOTIONS
. . .
Section C: Department Seniority: The principal
departmental seniority with ability and
qualifications shall govern in promoting, demoting, transferring, filling vacancies and new
Departmental seniority shall apply in any office having two or more Association employees.
Section D: County-wide
Seniority: The principal of the County-wide seniority with ability
and qualifications shall govern in filling jobs or vacancies and new positions not filled by
within the department. County-wide seniority shall govern layoffs, recalls after layoffs and
providing the remaining employees are capable of performing the available work.
Section E: Whenever a
vacancy arises or a new position is created which would be under
union jurisdiction, the County will post a notice of such vacancy or new position on the
board for a period of five (5) working days. This posting shall include job qualifications and
scale. At the end of the five (5) working day posting, the County will remove the notice and
will be filled within five (5) working days. Employees on vacation or sick leave will be
job postings by the Association. Present non-probationary employees who meet the
qualifications and abilities as defined in the job description within the bargaining unit shall be
preference before any new employee is hired. An employee who is selected to fill a posted
post for another job at the same or lower
rate for a period of six (6) months, except for health
reasons. The posting procedure shall apply to vacancies in all deputy positions so that
may be given to employees within the Courthouse; however, the elected official shall have
to appoint the deputy of his/her own choice. A copy of job postings shall be mailed to the
of Local #158.
. . .
Section G: Whenever the County finds it cannot
follow the principal (sic) of seniority, the
question is subject to grievance procedure between the County and the Association.
. . .
ARTICLE 7 VESTED RIGHTS OF MANAGEMENT
Section A: The right to employ, to promote, to
transfer, to discipline and discharge
employees, and to establish work rules is reserved by and vested exclusively in the Oneida
Board through its duly appointed Personnel Committee and duly appointed department heads.
reasonableness of the exercise of the aforementioned vested rights shall be subject to the
The Association filed grievance number 00-392 on November 10, 2000 (references to
are to 2000, unless otherwise noted). The grievance form cites Article 6 as the
GRIEVANCE", and states the following under the heading
"REMEDY": "Comply with Article 6,
Section C of the current collective bargaining agreement." The form states the following
heading "DESCRIBE THE GRIEVANCE:"
Did Oneida County violate Article 6, and
any other applicable provisions of the parties 1998-2000 collective bargaining agreement by
failing to fill a vacancy in the Department of Social Services
with applicants from with the Department? If so, what is the proper remedy?
In filling a vacancy within the Social
Services Department, the County selected an employee
from outside the Department. Two applicants from within the Department are both qualified
have greater Departmental seniority tha(n) the employee selected for the position.
The vacancy referred to in the grievance is for the position of Social Services Aide.
The County posted the vacant position on October 25, and removed the posting on
2. Three employees signed the posting: Kirsten Kronberger; Kim Gauthier and Jill Butzlaff.
parties stipulated the seniority of these employees thus:
Jill Buztlaff worked in the Register of Deeds Department and had
no "departmental seniority"
in the Social Services Department as (of) November 2, 2000.
Kim Gauthier was hired on June 21, 1999,
and had worked in the Department of Social Services
since she was hired through the date of the posting on November 2, 2000. Thus, her
and Social Services "departmental seniority" began as of June 21, 1999.
Kirsten Kronberger was hired on March 25,
1998, and had worked in the Department of Social
Services since she was hired through the date of the posting on November 2, 2000. Thus,
"county-wide" and Social Services "departmental seniority" began as of March 25, 1998.
The Personnel Department reviewed the personnel files of each applicant and
determined that each
applicant met the requirements of the position "on paper." The posting lists the "essential
responsibilities" of the position thus:
action sheets for payment of services.
Provides information and advice to clients, short of counseling.
Obtains information by client and provider interviews relevant to authorization and
certification of purchased services.
Completes redetermination of client eligibility and extent of need for services,
systems or services provided.
Maintains record of change in clients/providers status; provides and assists in
forms, reports and statistical analysis.
Makes referrals to
and coordinates services with community organizations.
Assists social workers as assigned.
Keeps clear and accurate information using checklist for necessary forms and
Monitors condition of client homes and families, evaluates client program satisfaction.
Coordinates holiday donation programs.
Any other duty as assigned.
The posting states the "qualifications" for the position thus:
Knowledge of office practices and
procedures, terminology and equipment.
Knowledge of Agency rules,
regulations, policies and procedures.
Ability to type 60 wpm and operate
a 10 key calculator efficiently.
Ability to use computer hardware,
software and accessories.
Ability to compile, analyze, record
and assemble data and information in meaningful and effective
Ability to maintain confidentiality
of Agency files and information.
Good verbal and written
Good English skills.
Good business math and
Must be able to evaluate situations
and make good independent decisions based on practice and
The posting states the required "education and/or experience"
High school degree or equivalent.
One year post high school
education with course work in sociology, psychology, administrative
assistant or secretarial science.
Two years work experience in an
Valid Wisconsin Driver's License.
Must have or be able to obtain MA
case manager certification within the probation period.
The matter was then referred to the Social Services Department, which established an
schedule for the three applicants.
A panel of three Social Services Department managers, chaired by Rose Dryden, the
Work Supervisor, interviewed the three applicants on November 6. At the start of the
panel presented each applicant with the following printed list of questions:
1. What factors are most important to you on a job?
2. What are some things in
your current or past position, which you feel you have done
3. What would you say is your
strongest and weakest asset that you would bring to this job?
4. What are your computer
experiences in terms of:
A. Hardware used:
B. Software used:
C. Databases used:
5. What work experience or
education have you had in working with families, individuals or
6. Suppose you are out to
lunch with friends and they ask you about a case that you have
knowledge of. How would you respond to their questions?
7. How do you organize your
work when you have more to do than time allows?
8. Why do you feel we should
hire you for this position?
9. In accordance with the
Americans With Disabilities Act, are you able to perform all the
essential functions/duties required for the position of Social Services Aide? If you are not,
please identify which essential function(s) you are unable to perform and identify any
accomodation(s) (sic) which you feel may be necessary to help you perform the essential
10. When would you be
available for employment?
11. Are there any questions you
would like to ask of the committee or is there anything else you
would like to share with us?
The panel members were expected to rank the answers of each applicant to the first
on the following numerical score: "1 Inadequate;" "2 - Adequate";
"3 - Good"; "4 - Excellent"; and
"5 - Outstanding". Dryden collected the scores generated by the panel and delivered
them to the
Director of the Social Services Department, Paul E. Spencer, Jr.
After reviewing the panel scores, Spencer chose Butzlaff, thus prompting grievance
In a formal response to the grievance, dated December 18, Spencer stated the County's
The Social Services' position is that
following the posting, Personnel determined those applicants
who are eligible to be considered further for the position. Interviews are conducted to
ability and qualifications. Based upon ability, qualifications and seniority, the position is
to the highest ranking applicant.
During the processing of the grievance, however, Spencer concluded that Gauthier,
Kronberger, was qualified for the position. Because Gauthier, unlike Butzlaff, had
seniority in the Social Services Department, he determined that the initial preference for
erroneous, and awarded the position to Gauthier.
The balance of the background is best set forth as an overview of witness testimony.
Bahr has served as the unit's chief spokesman since late 1995. He headed the
that negotiated the parties' most recent labor agreement. Those negotiations neither changed
addressed any change to Article 6.
Bahr noted there is, in his experience, no precedent for the County using a selection
to determine the most qualified applicant without regard to seniority. From his perspective,
agreement and past practice demand that the County select the most senior intra-departmental
applicant, provided the applicant is qualified. Spencer did not take the position during the
of the grievance that Kronberger was not qualified. Bahr understood Spencer's position to be
Gauthier scored higher on the interview, and thus was preferable. This tracked a 1997
involving the filling of a Typist position. In that case, Spencer selected Julie Petraitis, an
from outside of the Social Services Department, over Judy Zarm, an employee working in
Services Department. The Association grieved the action. In that case, Spencer reversed his
during the processing of the grievance, asserting in a May 7, 1997 memorandum, that the
applicants "can be considered equally qualified." Bahr did not formally oppose this
testified that his position was that Zarm should have been selected because she met the
qualifications for the position.
Apart from a brief trial period in a position in the District Attorney's office,
worked for the Social Services Department. She noted she learned through a November 7
she would not receive the Social Services Aide position. The letter did not, however, state
reasons for the denial.
She stated that she meets or can meet every item required in the "education and/or
experience" section of the job posting. Beyond this, she testified in some detail that she
item demanded by the "qualifications" section. More specifically, she testified that she has a
Associate's degree with at least two years experience with the department. Her coursework
business math. When last tested, she typed at the rate of one hundred words per minute.
almost six years of prior experience working in an accounting office. She used a computer,
and peripherals in that office. She works as a Typist, within the Social Services Department,
in for the receptionist as needed. This demands communication and filing skills on her part.
this, Social Workers rely on her to edit and to proof their written work. At no point in the
process did any County manager inform her she was not qualified for the job.
She estimated her interview lasted from seven to ten minutes. She assumed the panel
aware of her qualifications and past work within the Social Services Department, if for no
reason than that the Personnel Department had already passed on her qualifications. She
the panel provided her the list of questions and relied on her to answer those questions,
prompting or assistance. Nor panel member asked her to clarify or to amplify any of her
Dryden has served as a supervisor in the Social Services Department for eight and
years. She testified that Kronberger took no more than five minutes to complete her
responses to the
list of questions. Dryden did not feel her responses satisfactorily addressed the questions,
that the panel did not know her background or qualifications prior to the interview. In
view, the responses did not constitute proof she was qualified, and possibly indicated she
the panel already knew her background.
Dryden added that the interview was, consistent with past practice, a "non-interactive
interview." Prior to the start of the interview process, Dryden asked each applicant if they
questions. After that, each applicant read and answered each question. The panel asked no
beyond those provided the applicants, but could ask clarifying questions. Kronberger's
in her view, were so brief that they permitted no clarification questions from the panel. She
little of Kronberger's qualifications prior to the interview, and knew little more after it. In
the non-interactive process was designed to restrict the substance of the interview to the listed
She added that she was not aware of any minimum score on the interview that could
a "passing" score. She did not know if the County assigned a particular value to the
interview as a
portion of the selection process. The panel scored each interview, and she passed the scores
Spencer, who did not participate in the interview. Spencer had Dryden check
into the references listed by each applicant, and also asked Dryden of her general
impressions of the
applicants. The decision to rank the applicants was Spencer's. She believed he used the
scores to determine the most qualified applicant, and was unaware what, if any, factors
considered other than the interview.
Dryden stated that Kronberger's interview took five minutes, Gauthier's took at least
and Butzlaff's took about thirty. The interview schedule was set to permit up to thirty
Jackson has served as Personnel Director since 1987. The non-interactive interview
was in place prior to this. The process, in his view, was "fair and open." It was designed
sterile from an interviewer's perspective, but wide open from an applicant's. Beyond this,
precluded panel members from straying into not job-related or potentially illegal areas of
Jackson stated that the Personnel Department determined those applicants who met the listed
requirements of the posting, then forwarded that list to the hiring department. After the
the Personnel Department played no role in the selection process. Spencer made the ultimate
Further facts will be set forth in the
THE PARTIES' POSITIONS
The Association's Brief
The Association states the issues for decision thus:
Did the Employer violate Article 6 (Seniority Promotions
Reclassification Layoff), Sections
C and D of the Collective Bargaining Agreement, when it failed to promote Kirsten
the position (of) Social Services Aide?
If so, what is the proper remedy?
After a review of the evidence, the Association argues that the "County stipulated that
has subject-matter jurisdiction, and that the Arbitrator has the authority to interpret the 1991
decision." Arbitral authority establishes that one arbitration award can have "preclusive
another only if the parties, facts, contract language and evidence are the same.
A review of the Crowley award establishes that it "is not controlling in this case
circumstances of this grievance differ from those decided by Arbitrator Crowley." In this
County acknowledges that Kronberger is "qualified on paper," but argues that she was not
based on the "non-interactive interview." If the interview is to be determinative, then the
obligated to notify Kronberger prior to the interview. She wrongfully assumed that her
knew her qualifications, only to find out after the fact that she was expected to detail them
More significantly, a review of Kronberger's qualifications establishes that she was
to assume the posted position. In the grievance before Crowley, the grievant could not
fundamental qualifications. Beyond this, Crowley addressed applicants asserting only
seniority. Here, Kronberger's superior departmental seniority is undisputed.
Article 6, Sections C and D establish that an applicant must possess the minimum
qualifications for a posted position. The labor agreement does not contemplate the County
the most qualified applicant. The County's attempt to read Article 6 to permit it the
authority to determine the most qualified applicant effectively reads seniority out of
doubt on this point is addressed by the County's resolution of the Zarm grievance in 1997.
Association contends, however, that the language of Article 6 is too clear to permit such
County and departmental seniority cannot be "governing" if seniority plays the role of "a
in the most rare of circumstances."
It follows, according to the Association, that the County "violated the contract by
promote Kirsten Kronberger to the position of Social Services Aide." The Association
she "be made whole for any and all wages and benefits which she would have received but
County's violation of the contract, and that the County cease and desist from such further
The County's Brief
The County states the issues thus:
1. Is this grievance arbitrable based on the doctrine
of Res Judicata, in light of the Crowley
Award? If this grievance is found to be arbitrable, then
2. Did the County act
appropriately and consistent with the collective bargaining agreement in
filling the Social Services Aide position?
A review of the evidence establishes that the Association successfully grieved the
selection of Jill Butzlaff to fill the Social Services Aide position. After a review of the initial
grievance, the County agreed that one departmental applicant, Kim Gauthier, had the
and qualifications sufficient for the position. On February 2, the county promoted
Gauthier to the
position, thus meeting "the remedy sought by the Association in grievance #00-392."
The Association, however, "introduced an entirely new issue into the process" at
asserting Kronberger had to be selected. Arbitral precedent establishes that this "completely
circumvents the grievance process." To accept the Association's view "will have a chilling
future grievance discussions due the creation of mistrust and uncertainty."
Nor can the Association's view of the merits of the revised grievance be accepted. If
personnel department's certification of a list of applicants establishes qualifications, then
there is no
basis for an interview. This view cannot be accepted without violating twelve years of past
that "clearly shows that the County has been conducting oral interviews and that the County
promoted employees based on ability, qualification and departmental seniority." Such action
included promoting less senior employees and outside applicants. No testimony introduced at
can rebut this practice.
Beyond this, the "selection process has already been arbitrated and decided in the
favor." The process has continued essentially unmodified since 1991, and should not be
Kronberger's testimony at hearing cannot overcome this award. She received the chance to
her qualifications in the interview process, and failed to do so. Her interview took five
the other applicants took from fifteen to thirty minutes. Kronberger's answers at the
not thorough." Her testimony at hearing cannot become a second interview.
The Association's attempt to discredit the interview process should not be accepted.
the process is non-interactive is not a flaw. The interview process is valid, fair and
job-related as the
Crowley award establishes. Commission precedent establishes that arbitration awards should
res judicata effect. The facts of this grievance mirror those before Crowley, and the
decision to promote Gauthier is reasonable. It follows, according to the County, "that the
(must) be dismissed in its entirety."
I have essentially adopted the County's view of the threshold issue to the merit of the
grievance, and the Association's view of the issue on the merits. The Wisconsin Supreme
determined the "res judicata" doctrine is more aptly stated as "claim preclusion", Northern
Power Co. v. Bugher, 189 Wis.2d 541, at 550-551 (1995). I have altered the County's
of the threshold issue to reflect the Court's preference. I have altered the Association's to
Sections C and D are not the only provisions of Article 6 bearing on the
resolution of the grievance.
Beyond this, I have altered the Association's to reflect that the grievance questions the role
seniority in the filling of the vacancy. This focuses on the selection of Gauthier rather than
rejection of Kronberger.
There is arguably a distinction between claim preclusion as applied by a court or by
Commission as a legal matter and as applied by an arbitrator as a contractual matter. At
County considered whether the Crowley award relieved it of its duty to arbitrate
As the issue stated above reflects, the County has asserted the doctrine as a matter of
Practically speaking, there is little difference between the legal and contractual
the doctrine. The Commission has stated its view of the law thus:
Res judicata effect will be given the
prior award (relieving the obligation to arbitrate the
grievance) where the subsequent grievance is shown to share an identity of parties, issues and
facts. (Citations omitted) Moraine Park Vocational, Technical and Adult Education
District, Dec. No. 22009-B (WERC, 11/85).
The contractual application of the doctrine is stated thus in Elkouri & Elkouri,
Works, (5th ed., 1997) at 610:
A well-reasoned and well-written arbitration opinion has
persuasive qualities where it is "in
point" with the current subject matter; however, to be given preclusive effect it must be
same parties, must invoke the same fact situation, must pertain to the same contractual
must be supported by the same evidence, and must concern an interpretation of the specific
before the arbitrator.
Either formulation demands an identity of parties, issues and facts. Article 6 has not
oneida county (courthouse), ma-6717 (crowley, 10/91), and the parties are the same. As the
County phrases the issue on the merits, the issues are the same, and can be taken to be the
the purpose of addressing the threshold issue.
The weakness in the County's argument is that grievance 00-392 and ma-6717 do not
an identity of fact. Under either party's view of Article 6, the underlying grievances are
distinguishable on their facts. This is because Article 6 demands the application of "seniority
ability and qualifications" to the filling of a vacancy. Inevitably, the evaluation of an
seniority, ability and qualifications must be made on a case by case basis. Even though the
classification is at issue, the applicants, with their differing seniority, ability and
qualifications are not.
However the relevant portions of Article 6 are interpreted, the parties drafted them to be
a case by case basis.
Against this background, there is no identity of fact, and claim preclusion is
does not mean the Crowley award has no bearing on grievance 00-392. Rather, it means its
persuasive, not binding.
It is thus necessary to address grievance 00-392 on its merit. The interpretive
between the Association and the County is closer than perhaps it should be. Each party
diametrically opposed views of the same language. Both suffer from fundamental flaws.
difficulty is to reconcile those flaws to the facts posed here. Prior to an examination of the
to be interpreted, some background on the flaws is appropriate.
The County's view is flawed by the lack of evidence on how management personnel
seniority. Dryden and Jackson testified that Spencer made the hiring decision, but Spencer
testify. Jackson testified that the Personnel Department made the determination that each
was qualified for an interview, then turned the matter over to the Social Services
as of the time of the interview, the County had made no apparent evaluation of the seniority
of the applicants. Dryden testified that the panel scored the interviews, then passed the
Spencer. The interview questions do not expressly include an evaluation of the seniority of
all of the applicants. Dryden indicated Spencer asked her how she reacted to the applicants.
noted the hiring determination was his alone. She felt he used the interview process to
most qualified applicant. The County chose not to have Spencer testify, and not to put the
scores of the applicants into the record. In sum, as of the selection of Butzlaff, there is no
that the County made any evaluation of the applicants' seniority. Standing alone, this
warrants granting the grievance.
The evidence does not, however, stand alone. Before addressing this point, it is
to address the flaw in the Association's argument. Ignoring, for the moment, the dispute
the Crowley award, the Association argues that the Personnel Department's evaluation of the
requirements of the applicants established that Kronberger met the qualifications for the
Thus, her superior intra-departmental seniority demands that she receive the position. The
Association thus reads Article 6, Sections C and D to demand that "departmental seniority . .
govern in . . . filling vacancies." The flaw in this argument is that the language reads
seniority with ability and qualifications shall govern in . . . filling vacancies". The
reads the reference to "with ability and qualifications" out of existence. Nor does it address
to assert that the "ability and qualifications" reference means simply "with the minimum
qualifications to meet the posted job requirements." The language of Article 6, Sections C
and D do
not clearly rank the factors of seniority, ability and qualifications. Thus, the Association's
that the language should read "seniority governs provided the applicant meets the minimum
qualifications of the job posting" has no evident basis in the language. More significantly
parties used a reference to "minimum qualifications and abilities as defined in the job
Article 6, Section E. This reference is limited to granting a preference to "(p)resent
probationary employees . . . within the bargaining unit" who are competing for a
vacancy with "any
new employee". That the parties expressly included this reference in Article 6, Section E
unpersuasive to conclude it should be implied in Article 6, Sections C and D.
The interpretive quandary is that the County, as of the selection of Butzlaff,
consideration of seniority. The Association, however, asserts a reading of Article 6,
Sections C and
D, which permits no consideration of ability or qualifications. What priority is to be given
factor poses a troublesome issue. As the Association urges, the structure of the first sentence
Article 6, Sections C and D may make the reference to "ability and qualifications"
"(t)he principal (sic) of . . . seniority". However, the full difficulty of that issue is not posed
since grievance 00-392 poses two diametrically opposed views. On this record, the County's
Grievance 00-392 squarely hit the flaw in the County's argument by asserting it had
disregarded the seniority rights of two intra-departmental applicants. Spencer's December 8
potentially highlighted the flaw in the Association's argument by noting that "ability,
and seniority" dictated the ultimate selection. As noted above, however, there is no evidence
County evaluated seniority by selecting Butzlaff. The County, however, altered this selection
choosing Gauthier. As of Gauthier's selection, it is apparent that the County did evaluate
intra-departmental seniority. This did not, as the County asserts, resolve the grievance, since
cited two intra-departmental applicants. However, at this point, the conflict between the
the Association no longer turned on whether the County failed to evaluate County-wide
against intra-departmental seniority. Rather, the dispute became whether the County
selection criteria properly.
Against this background, the Association's reading of Article 6, Sections C and D is
unpersuasive. It affords no apparent role for County evaluation of ability or qualifications
a determination that an applicant meets the minimum qualifications of a posting. This view
no persuasive alternative to the County's application of Article 6 in this case.
The primary difficulty with the Association's view is that it lacks a basis in the
Article 6, Sections C and D. As noted above, those sections specify three factors that
filling of a vacancy: "seniority", "ability" and "qualifications". Nor is the Association's
view that the
County is restricted to a determination of minimum qualifications supported by other
provisions. As noted above, the express mention of "minimum qualification and abilities as
in the job description" in Article 6, Section E, is restricted to competition between unit and
employees. Thus, its sole role is between those applicants with seniority and those with
the parties expressly created this limitation makes it unpersuasive to imply it in Sections C
Other evidence favors the County's view over the Association's. While the County
the binding force of the Crowley award, its persuasive force must be acknowledged. The
made the "minimum qualifications" argument before Arbitrator Crowley that it advances
ma-6717 at 4. Arbitrator Crowley rejected it, see ma-6717 at 6, 8. The claim preclusion
does not give this award binding force, but to adopt the view of the contract advanced by the
Association in this grievance would effectively overturn the Crowley award. This undercuts
fundamental purpose of arbitration, which is to grant finality to contractual disputes. As
Crowley's rejection of the "minimum qualifications" view of Sections C, D and E of Article
6 is well
founded on the language of those sections, and should not be lightly brushed aside.
Evidence of past practice is of limited assistance, but will not support the
of Article 6 over the County's. The binding force of a past practice is rooted in the
manifested by the bargaining parties' conduct. The settlement of the Zarm grievance
party's view of grievance 00-392, and affords only rough guidance on their areas of
is evident that Spencer acknowledged that he failed to properly apply intra-departmental
selecting Petraitis over Zarm. The settlement fails, however, to afford definitive guidance
this. Spencer's May 7, 1997 memo makes it clear he did not agree with the Association's
qualifications" view of Article 6, Sections C and D. Nor will that memo establish any
seniority prevails only where qualifications are equal (see May 7, 1997 memo at paragraph
testimony establishes that the Association never agreed to this view. Ultimately, the
prevails only where ability and qualifications are equal" view is no better rooted in Article 6,
C and D than is the Association's "minimum qualifications" view. Each view seeks to
prioritize the three factors. Article 6 does not.
The County has demonstrated that the "non-interactive interview" process has a long
and has resulted in the selection of applicants whose qualifications and ability overcame the
of competing applicants. This evidence affords support for the County's view that it must
three factors on a case by case basis. It also affords some support for the interview process
means to evaluate "ability and qualifications". As the County asserts, this evidence makes it
unpersuasive to adopt the Association's view of Article 6, which would deny any meaning to
interview process. Beyond this, however, it affords little guidance.
The limits of this conclusion bear some discussion. The Association's criticism of
non-interactive interview process has considerable persuasive force. However, the
interpretive issue is
not whether the County has selected the best means to evaluate ability and qualifications. At
minimum, the interview process treated all three applicants in the same manner, thus
the same opportunity. Kronberger's assumption that the panel was aware of her
not serve her well. Gauthier and Butzlaff did not make the same assumption, and were
the panel. Gauthier's superior seniority to Butzlaff has prevailed. A
single bad interview does not necessarily render Kronberger unqualified to be a Social
However, it can serve as a basis to favor Gauthier for this vacancy. Article 6 demands some
to evaluate qualifications and ability on a case by case basis. The labor agreement makes the
determination the County's, not an arbitrator's. To overturn the interview process in this
fundamental contractual flaw must be demonstrated. That Kronberger made an assumption
by the two successful applicants falls short of this mark. To conclude otherwise in effect
Kronberger a second interview.
This should not be read to overstate the
persuasive force of the County's position. Two
factors prevent the absence of Spencer's testimony from being fatal to the County's view of
grievance. The first factor is that Spencer selected Gauthier over Butzlaff, thus
consideration of intra-departmental seniority. The second is that the interpretation of Article
advanced by the Association eliminates County evaluation of ability and qualifications as
by Article 6. The County's proof that seniority received active consideration makes its view
selection process preferable to the Association's, which denies meaning to two of the three
In the absence of these unique factors, the County's view of Article 6 would have no
If the selection process is to culminate in the decision of a single individual, that individual
able to account for the weighing of each factor demanded by Article 6, including seniority.
The doctrine of claim preclusion does not govern grievance
The County did not violate Article 6 of the Collective
Bargaining Agreement when it awarded
Kim Gauthier the position of Social Services Aide.
The grievance is, therefore, denied.
Dated at Madison, Wisconsin, this 20th day of September, 2001.
Richard B. McLaughlin, Arbitrator