BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WAUSAU FIREFIGHTERS ASSOCIATION,
OF FIRE FIGHTERS, LOCAL 415
CITY OF WAUSAU
(Mortensen Promotion Grievance)
Mr. Jon R. Schnell, State Labor
Representative, International Association of Fire Fighters, 377
Echo Hill Drive, Green Bay, Wisconsin, appearing on behalf of Local 415, Wausau
Ruder, Ware & Michler, S.C. by Attorney Dean
R. Dietrich, 500 Third Street, P.O. Box 8050,
Wausau, Wisconsin, appearing on behalf of the City of Wausau.
Wausau Firefighters Association, Local 415, hereinafter "Union," requested that the
Wisconsin Employment Relations Commission appoint a staff arbitrator to hear and decide
dispute between the Union and the City of Wausau, hereinafter "City," in accordance with
grievance and arbitration procedures contained in the parties' labor agreement.
Lauri A. Millot, of
the Commission's staff, was designated to arbitrate the dispute. The hearing was held before
undersigned on January 23, 2002, in Wausau, Wisconsin. The hearing was not transcribed.
parties submitted post-hearing briefs, the last of which was received on March 8, 2002.
the evidence and arguments of the parties, the undersigned makes and issues the following
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties agreed at hearing that there were no procedural issues in dispute and
that the issue to be determined was:
Whether the City violated the Labor Agreement when it
two other employees for
promotion to the position of Lieutenant instead of the Grievant? If so, what is the
Article 4 - MANAGEMENT
The City possesses the sole right to operate
City government and all management rights repose
in it, but such rights must be exercised consistently with the other provisions of this contract.
rights include, but are not limited to, the following:
. . .
B. To hire, promote, transfer,
assign and retain employees in position with the City.
. . .
G. To introduce new or improved
methods or facilities.
H. To change existing methods or
. . .
J. To determine the methods, means and personnel
by which such operations are to be
. . .
Article 11 - PROMOTION PROCEDURE
A. Notice of Vacancies:
The Chief shall see that available openings for regular or new
positions are made known to employees in the Department. Notice of such openings or new
shall be posted in each station in the Fire Department for a minimum of ten (10) calendar
this shall be considered full compliance with this provision.
B. Promotional Criteria: In cases of
promotion, other than appointment to positions
outside the bargaining unit and for Motor Pump Operators, the Chief in making
the Police and Fire Commission shall base his recommendation on the following factors: job
knowledge, job performance, and seniority. These factors shall be given equal weight in
recommending an employee for a promotion, unless the Chief determines that the factors
weighted, in which case, all applicants shall be considered on the same standards and the
be given to each criteria shall be included in the job posting. In no event, shall the weight
seniority be less than ten percent (10%). Job performance shall be determined by the
department performance evaluation giving due consideration to each grader's grading habits.
Chief shall make his recommendation for promotion from among the employees who receive
three highest composite scores. Promotions to the position of Motor Pump Operator shall be
solely on seniority.
. . .
BACKGROUND AND FACTS
The facts giving rise to this grievance are not in dispute.
On or about March 11, 1999, City Fire Chief Gary L. Buchberger issued a
all fire department personnel putting them on notice of a vacancy in the position of Fire
as a result of the retirement of Larry Karlmann. The memorandum informed those interested
promotional opportunity of the application procedure which was to submit a "Letter of Intent,
Personal Resume, and a completed "JOB-RELATED QUALIFICATIONS
FIRE LIEUTENANT (capitals in original)." It further informed the membership that:
. . .
Eligibility for this promotion will be based upon job knowledge
(50%), job performance (40%),
and seniority (10%). A competitive examination will be held to determine the first level of
knowledge. The test date for the competitive examination will be Tuesday morning, April
1999. The exact time will be posted at a later date. The top five candidates, based on the
criteria, will be invited to an oral job knowledge interview conducted by three senior fire
the area. All promotions require final approval by the Wausau Police and Fire Commission.
three finalists resulting from the
oral interview will be submitted to the Wausau Police and Fire
Commission for final selection.
A separate oral interview conducted by the Wausau Police and Fire Commission may be
to accommodate their wishes.
. . .
Attached to the above memorandum was the position description for the Fire
Lieutenant-Operations position, a reading list, and a procedure that included
. . .
3. Job knowledge will be
broken down into a written exam to determine the first level of knowledge and an oral
interview score. (See attached reading list).
. . .
In response to the promotional posting, the Grievant, Gordon
Mortensen, submitted a complete application
package for the Fire Lieutenant position by March 22, 1999. Subsequently, he and the other
candidates completed the
written test. Buchberger issued a memorandum on April 15, 1999, informing all applicants
that five candidates would
be invited to a department interview scheduled for April 20, 1999. The five successful
candidates were listed "in order
of seniority" in the memorandum as follows: Rick Schultz, Doug Flory, Tom Gipp, Gordon
Mortensen and Steve Bahr.
Following the department interviews, Buchberger issued a memorandum on April 21,
1999, to the finalists
for the vacant Lieutenant position indicating that the testing and evaluation process was
complete and that the
candidates' final scores had been calculated based on seniority (10%), performance
evaluations (40%) and job
knowledge (50%). The candidates, listed in order of their final scores, were Doug Flory,
Gordon Mortensen, Rick
Schultz, Tom Gipp and Steve Bahr.
The Police and Fire Commission interviewed Flory, the
Grievant and Schultz on April 27, 1999, Chief
Buchberger recommended Schultz and Schultz was awarded the Lieutenant-Operations
No grievance was filed regarding the promotion of Schultz.
On January 15, 2000, Buchberger issued memorandum in response to the retirement
Gould thus creating a Fire Lieutenant vacancy. The memorandum informed the membership
Fire Lieutenant position was available specifically stating "the retirement of Tom Gould has
a Fire Lieutenant opening within the department." The memorandum
replicated the criteria and process portion of the memorandum issued March 11, 1999,
different with regard to the application process in that it stated:
. . .
Those fire department members who applied for the Fire
Lieutenant vacancy in March, 1999 are still eligible for
consideration if they are still interested in this opportunity. The promotion will come from
that eligibility list. Eligible
personnel applying for this promotion will be required to submit a Letter of Intent. Your
Personal Resume, and
completed "JOB-RELATED QUALIFICATIONS QUESTIONNAIRE FOR FIRE
LIEUTENANT" will be used from
your last application. It is your responsibility to ensure management still has all current and
. . .
The four remaining eligible candidates, the Grievant, Flory, Gipp and Bahr,
letters of intent to comply with the promotional application procedures.
As a result of personnel movement in the management structure in the Fire
second Lieutenant position became vacant when a Lieutenant was promoted to Captain
City did not post a notice for this vacancy.
Tom Gipp withdrew his name from consideration before Chief Buchberger made his
recommendation to the Police and Fire Commission.
On May 23, 2000, the Police and Fire Commission met. Chief Buchberger
recommended to the Police and
Fire Commission candidate Flory for the position vacated by Gould and candidate Bahr for
the position open as a result
of the promotion of a Lieutenant to a Captain position. The Police and Fire Commission did
not conduct interviews
with any of the candidates. The Police and Fire Commission approved the promotion of
Flory and Bahr to the two (2)
vacant Lieutenant positions.
As a result of the Grievant not being promoted, he filed this grievance on June 15,
2000, which was activated
on or about January 19, 2001. 1/ The grievance alleged a violation of Article 11, Section B
of the labor agreement.
The grievance was described as "Failure of the Chief, as a representative of management for
the City of Wausau, to
follow terms of the contract under the above cited Article/Sections. Specifically with regard
to the promotions
announced in memo dated May 24, 2000 and the procedures used in establishing these
promotions." The relief sought
was "Promotion by the City to the rank of Lieutenant-Operations. Or promotion to an
equivalent rank as established,
and mutually agreed upon, by the City, Union and myself. In either Case, pay and benefits
to be at the rate of
Lieutenant-Operations and retroactive to May 24, 2000."
Grievant filed two separate grievances on June 15, 2000. The one giving rise to this
held in abeyance while the Grievant pursued a second one concerning the failure of the Chief
to give a reply to the
Grievant as to why he was passed over for promotion. The second grievance was withdrawn
without prejudice. The
grievance held in abeyance was reactivated on or about January 19,
The City denied the grievance at all steps.
In a letter dated June 2, 2000, Fire Chief Buchberger explained the specific reason
Grievant was not selected for promotion which read in pertinent part:
. . .
Based on your composite numerical scores in seniority, job
knowledge and job performance you
ranked number two (2) of the top four (4) candidates for consideration for two (2) openings
position of lieutenant.
By contract I am required to recommend
two of the top four candidates for promotion. I based
that recommendation on my evaluation not only of the numerical score but also on an
the entire person concept and the experience, knowledge and overall fitness that person
brings to the
I recommended Steve Bahr because I
believe he has greater depth and breath of knowledge and
experience in those areas of management and leadership skills essential for this position than
demonstrated. Although you have more years of experience in this department and a higher
composite score, Steve has held and demonstrated positive leadership ability in the positions
supervisor, administrative officer, and even fire chief in other departments in the fire service.
has over twenty years of experience accumulated in the fire service and has demonstrated
ability and skills superior to yours.
Technical competence is important and is
looked at as necessary for promotion, but it is not the
only deciding factor I look for. The position of lieutenant also requires an ability to
garner consensus and to manage personnel and work assignments in a harmonious manner.
final assessment I believe Steve Bahr brings a greater amount of this ability to the job and
therefore recommended over you for promotion.
The Police and Fire commission [sic] have
the option but not the requirement to interview
candidates if they so choose. In this case the Police and Fire commission [sic] accepted and
my recommendations without interviews.
. . .
POSITIONS OF THE PARTIES
Union Initial Brief
The Union argues that the City has violated the terms of the labor agreement as it
promotion procedures. The Union relies upon the plain meaning of the contract, the past
of the parties and the expectations of fair and equal treatment of all employees.
The Union points out that the labor agreement clearly obligates the City to inform all
employees of available openings through a department wide posting procedure. The Union
that the City failed to post the second Lieutenant position and as such, violated
Article 11 of the labor
The Union next addresses the criteria that the City is contractually bound to utilize
making promotional decisions. The Union argues that the City may only consider job
job performance and seniority as stated in Article 11. The Union takes the position that the
knowledge component, as defined by the City in its March 11, 1999 memorandum, is
assessed by the
written test and oral interview with senior officers. The job performance component is from
candidates' past department performance evaluations and seniority is the candidate's actual
continuous length of service since the most recent date of hire. The Union argues that Chief
Buchberger's utilization of Candidate Bahr's "demonstrated leadership in the positions of
administrative officer and even fire chief in other departments of fire service" is not
the parties' contractual definition of "job performance" and further, that Chief Buchberger
in a position to evaluate Bahr's past performance in this area because he was not employed
City at that time. The Union notes that the Grievant has served as Acting Lieutenant on
occasions over the last eight years, whereas Bahr has not served as an Acting Lieutenant with
The Union argues that the City has deviated from its past practice of requiring
complete an oral interview with the Police and Fire Commission. The Union asserts that the
created two different standards; one for Flory and the Grievant who were interviewed by the
Commission and another for Gipp and Bahr who were not interviewed by the Commission.
Union concludes that the different standards followed by the City result in unfair and unequal
treatment of all employees.
City Initial Brief
The City argues that arbitral precedent afford the City with all rights not expressly
or limited by the labor agreement. The City cites Glendale Professional Policemen's
Association v. City of Glendale, 83 Wis.2d 90, 98, N.W.23d 594, 599 (1978) in support of
proposition that the City Police and Fire Commission has complete discretion as it relates to
appointment of fire personnel to subordinate positions unless
relinquished by a labor agreement. The City argues that the labor agreement requires
the Chief to
establish an eligibility list based on three factors: job knowledge, job performance and
agreement further requires that based on these factors, the names of the candidates with the
highest scores will be given to the Commission and that the Chief makes his recommendation
among those three candidates. The City argues that these are the only restrictions placed on
promotional process and compares its decision to those of the employers in St. Croix
166, No. 56943, MA-10470 (Mawhinney, 6/99); City of Eau Claire (Fire Department), Case
243, No. 58898, MA-11100 (Jones, 5/99), and Ozaukee County, Case 50, No. 59340,
The City next argues that Chief Buchberger's reliance on the information contained in
"Job-Related Qualifications Questionnaire" does not violate the labor agreement. The City
that although an ambiguity exists as to whether the Chief may rely on the content of the
Qualifications Questionnaire," by construing the agreement and other relevant documents as a
the ambiguity is resolved in favor of the City. The City argues that the only explicit
limitation on the
Chief's authority to recommend a candidate is that the candidate must be one of the three
highest score, thus if the Chief is considering the information in the "Job-Related
Questionnaire" of one of the three highest candidates, his action is appropriate. The City
notes that the labor agreement contains no other explicit restriction on the Chief's authority
his personal recommendation.
Finally, the City asserts that it has a past practice of the Chief relying on the
Questionnaire" since Chief Buchberger relied on this document when he recommended
Schultz in 1999. The City
asserts that it followed the "exact same procedure" in 2000 as it did when Schultz was
promoted in 1999. The City
concludes that since the 1999 promotion did not violate the labor agreement, the promotions
of Flory and Bahr in 2000
do not violate the agreement.
Union Reply Brief
In response to the City's assertion that the same hiring procedure was used in the
promotion of Flory and Bahr,
the Union refers the Arbitrator to the testimony of Chief Buchberger wherein he testified that
Bahr had never been
interviewed by the Police and Fire Commission. The Union reaffirms its position that fair
and equal treatment does
not exist when a different standard is applied.
With regard to the impact of the different standard, the Union asserts the Grievant
met the expectations of the Police
and Fire Commission during his interview while an assessment of how Bahr would have
done in an interview with the
Commission is pure speculation. Since the Police and Fire Commission did not conduct an
interview, it is not in a
position to evaluate Bahr's ability to manage human resources nor to assess his composure
during a stressful situation
like an employment interview.
For all of the above reasons, the Union argues that the Grievant is entitled to the
promotion to Lieutenant.
City Reply Brief
The City asserts that the Union has misstated the issue to the extent that the Union
has attempted to introduce
a fairness standard, and further, that such a standard is not applicable to the instant dispute.
In response to the Union's argument that the City violated the labor agreement by
post the second Lieutenant position, the City argues rather than post the second Lieutenant
the City chose to "simply incorporate it into the selection process for the first vacancy." The
relies on Arbitrator Mawhinney's decision in St. Croix County, Case 166, No. 56943,
(Mawhinney, 6/99) when she found that although the employer was responsible for two
errors in its promotion process, the errors did not adversely impact the grievant so as to
ordering the employer to promote the grievant.
The City argues that Chief Buchberger held all candidates to the same standard. The
points out that it is not a contractual requirement that the Police and Fire Commission
interviews. It further asserts that all candidates were held to the same standard - the Chief
the "Job-Related Qualifications Questionnaire" when Schultz was hired and he did so again
Bahr was hired.
The City denies unilaterally changing the promotional criteria of the labor agreement
when it promoted Bahr.
Finally, the City denies that it considered Bahr's previous experience as part of the
"Job Performance" criteria
of the labor agreement. Rather, the City argues that the Chief appropriately considered the
content of the "Job-Related
Qualifications Questionnaire" when he made his personal recommendation.
For all of the above reasons, the City asserts that the grievance be denied.
The issue to be determined is whether the City's decision to promote Tom Flory and
Steve Bahr, rather than
the Grievant, to two vacant Lieutenant positions in the Fire Department violated the labor
agreement. The thrust of
the Union's argument focuses on the promotion of Steve Bahr in lieu of the Grievant. The
only evidence introduced
regarding the promotion of Flory to the position vacated by Lieutenant Gould related to the
application and interview
process of 1999. The parties have not argued the merits of Flory's promotion. Since
the issue to
which the parties stipulated requires that I address the promotion of Flory, I will do so based
contractual language and limited amount of evidence presented.
Failure to Post Vacancy
The contractual clause that addresses promotion in detail is Article 11. Article 11,
Section A, contractually
obligates the City to post available openings for regular and new positions for a minimum of
ten (10) days. The City
posted the Lieutenant position vacated by Gould by January 15, 2001, but did not post a
second Lieutenant position
created by the promotion of an incumbent Lieutenant to a Captain position. Although the
City explains its actions by
stating that it choose to "simply incorporate it into the selection process for the first
vacancy," it neither has the latitude
nor authority to deviate from the express terms of the parties agreement. I therefore find
that the City violated Article
11, Section A, when it did not post the second Lieutenant vacancy.
Tom Flory was awarded the Lieutenant position vacated by Tom Gould. This
position was posted on January
15, 2000. There is no argument that the posting was not in compliance with Article 11,
Section A. Since the position
was posted consistent with Article 11, I do not find a contractual violation as it relates to the
City's obligation to post
the Lieutenant position awarded to Flory.
The Criteria for Selection
Section B, of Article 11 provides that promotions will be based on "job knowledge,
performance and seniority" and that the Chief has the contractual right to determine the
these factors in calculating candidate composite scores. Once the composite scores have been
established, the three highest scores and their accompanying candidate names are provided to
Chief. The Chief then has the right to choose any of the three, regardless of their ranking.
If, as the
Union argues the Chief may only consider job knowledge, job performance and seniority in
percentage and manner defined in the memorandum of March 11, 1999, and reiterated
memorandum of January 15, 2000, then the Chief has no discretion and would be bound to
the candidate with the highest composite score. This would render meaningless the portion
11, Section B, that provides the Chief the right to choose any of the three candidates with the
composite score. Thus, in order to give meaning and effect to all clauses of the agreement, I
conclude that the Chief is contractually obligated to base his recommendation on the
criteria of knowledge, performance and seniority and further that he may recommend any of
candidates with the highest composite score, regardless of their ranked order.
There is no evidence or allegation by the Union that the City, in establishing the
composite scores, deviated
from its contractual obligation. Thus, unless the Union can show that Buchberger decision's
was arbitrary, capricious
or discriminatory, there is no violation of the labor agreement. See Elkouri and Elkouri,
How Arbitration Works, 5th
Edition, p. 844 (1997).
The record substantiates that Buchberger chose Bahr because "he has greater depth
breadth of knowledge and experience in those areas of management and leadership skills
this position than you have demonstrated." Buchberger's testimony at hearing replicated this
rationale. Moreover, Buchberger testified that he considered the Grievant's leadership skills
aware of the Grievant's work in the nursing field and his experience and training/teaching
responsibilities within the department and for the technical college. The Union argues that
acted inappropriately when it considered Bahr's prior management and leadership experience
other fire service providers. The Union's argument relies on its categorization of
leadership as components of the "job performance" criteria and argues that job performance
to evaluations while in the employment of the City Fire Department. Although I agree with
that it would be inappropriate to consider Bahr's prior service not in the employ of the City
of the job performance component of the criteria, the Union's argument is misplaced. First,
do not establish that the City considered Bahr's prior management and leadership experience
component of "job performance." Second, the labor agreement provides the Chief the
chose any of the three highest composite score candidates. The only contractual limitation
the Chief is that he must consider of job knowledge, job performance and seniority. Since
management and leadership experience can be reasonably ascertained from the job knowledge
component and since the Chief desired to consider these two factors, he has the right to do
third, past management and leadership experience is information that was contained in Bahr's
application materials and gleaned from the written and oral assessment of Bahr. The Chief's
to choose Bahr was contractually grounded. Moreover, his consideration of Bahr's past
and leadership experience was within his discretion and reasonable when considering a
a leadership position. Thus, I find that the City did not act in an arbitrary, capricious or
discriminatory manner when it promoted Bahr rather than the Grievant.
With regard to Buchberger's decision to recommend Flory instead of the Grievant, as
previously stated, the Chief has the contractual authority to choose among the three
the highest composite score when making his recommendation. Flory was one of the three
with the highest composite score. No evidence was offered one way or another about the
Buchberger's recommendation of Flory. The Union bears the burden of proof, and I find
there is no
proof to support a claim that Flory was promoted inappropriately. Given my previous
there was no procedural violation in the posting of this vacancy, the grievance, insofar as it
to the Flory promotion, is denied in its entirety.
The Failure of the PFC to Interview Candidates
Finally, the Union asserts that since the successful candidate, Bahr, was not
the Police and Fire Commission, the Grievant was subject to disparate, unfair and unequal
Although the Police and Fire Commission interviewed candidates Schultz, Flory and the
1999, it chose not to conduct any interviews in 2000. Article 11 does not require the Police
Commission to conduct interviews. Management has the right to "decide on the methods to
determine ability so long as they are fair and nondiscriminatory and the factors considered
related to the job's requirements and the applicant's ability to meet those requirements."
Elkouri, supra, pp. 845-846. "Implicit . . . is the requirement that any such Employer action
be made in a manner that can be characterized as arbitrary, capricious, discriminatory and/or
wrong so as to protect the earned seniority rights of any affected employee(s)." Dakota
Association, 84 LA 114, 118 (Boyer, Jr., 1/85). The record does not establish that the
by the Police and Fire Commission to forego interviews was either biased in favor of Bahr
it biased against the Grievant. The record is devoid of reasons for the Police and Fire
decision not to interview candidates. Lacking any evidence to substantiate that the City's
to forego interviews was arbitrary, capricious or unlawfully discriminatory, I find that the
decision to change its promotion procedure in 2000 was consistent with its contractual rights.
The Union alleges that the change in procedure is unfair. I would agree with the
the process would be unfair if some candidates were interviewed and others were not for the
vacancy, but these are not the facts with which I am presented. The Grievant was
a prior vacancy, but there is no evidence that the Grievant's prior interview was weighed in
the Bahr promotion. It may be, as the Union asserts, that that Bahr would have done poorly
his interview with the Police and Fire Commission, thus making the Grievant a more
candidate, but this is supposition and even if it were true, it does not matter because the
Fire Commission have the right to change their process.
With regard to Flory, the Union appears to argue that he was subjected to disparate
treatment. There was no
disparate treatment between Flory and the Grievant because they were both interviewed in
1999. As discussed above,
the promotions in 2000 followed a different interview procedure than the promotion in 1999.
The City was within its
contractual rights to alter the process. Given that the City was acting within its rights and
that Flory participated in
the 1999 interview, I find that the promotion of Flory, rather than the Grievant, was
consistent with Article 11.
Conclusion and Merits
The record establishes that the Grievant had served in an Acting Lieutenant capacity
number of occasions pre-dating the 2000 promotional process. The Grievant conducts
HAZMAT training and education for the Department and at the technical college. At
the time of
hearing, the Grievant was an Acting Motor Pump Operator and an Acting Lieutenant. It
from the record that the Grievant meets the requirements for a lieutenant's job, but that is
issue here. The Chief judged him qualified, but exercised his discretion to choose another of
top candidates. There is no showing of animosity against the Grievant. Given that the labor
agreement does not require that the Police and Fire Commission interview candidates and
Police and Fire Commission accepted the recommendation of Chief Buchberger who
qualifications of the Grievant, I find that the evidence does not demonstrate that the City
improperly in that regard.
I have found that the City violated the labor agreement when it failed to post the
Lieutenant vacancy created
by the promotion of a Lieutenant to a Captain position. I have not found that the criteria
utilized by Chief Buchberger
when making his recommendation to the Police and Fire Commission or the failure of the
Police and Fire Commission
to conduct interviews with the three candidates with the highest composite score constitute
Thus, in fashioning a remedy, it is essential that the remedy appropriately addresses the labor
The issue before me is whether the contract was violated when Bahr and Flory were selected
for promotion over the
Grievant. The substance of those decisions was contractually appropriate. The violation was
in the failure to post and
the Grievant was not prejudiced by the lack of a posting. He was treated as a candidate for
the openings. Additional
competitors could not have improved his chances. It may be that some other member of the
Department has a
complaint about the failure to post, but I am confined to the dispute and the disputants before
me in this specific case.
For this reason, I conclude that the appropriate remedy for the violation found here is a
declaration of rights, advising
the parties that the City does not have the right to bypass the clear and unambiguous posting
requirement of the
Based on the above and foregoing, the record as a whole and the arguments of the
parties, the undersigned
issues the following
1. No, the City did not violate the Labor Agreement when it promoted Doug Flory to
the Lieutenant position
previously held by Tom Gould.
2. Yes, the City violated the Labor Agreement when it failed to post the Lieutenant
position awarded to Steve
The appropriate remedy is to post all future vacancies in accordance with the clear
terms of the agreement.
Dated at Wausau, Wisconsin, this 21st day of June, 2002.
Lauri A. Millot