BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MERRILL CITY EMPLOYEES LOCAL 332,
CITY OF MERRILL
Mr. Phil Salamone, Staff Representative, AFSCME, Council 40,
AFL-CIO, 7111 Wall Street, Schofield, WI 54476,
appearing on behalf of the Union.
Ruder, Ware & Michler, S.C., by Attorney Jeffrey T. Jones
and Attorney Bryan Kleinmaier, 500 Third Street, P.O.
Box 8050, Wausau, WI 54402-8050.
The Merrill City Employees Local 332, hereinafter referred to as the Union, and the
Merrill, hereinafter referred to as the City, are parties to a collective bargaining agreement,
CBA, which provides for final and binding arbitration of certain disputes, which agreement
was in full
force and effect at all times mentioned herein. The parties asked the Wisconsin Employment
Relations Commission to assign an arbitrator to hear and resolve the Union's grievance
City's decision to promote a less senior employee instead of the more senior Grievant,
Dickey, hereinafter referred to as the Grievant. The undersigned was appointed by the
as the Arbitrator and held a hearing into the matter in Merrill, Wisconsin, on May 23, 2002,
time the parties were given the opportunity to present evidence and arguments. The hearing
transcribed. The parties filed post-hearing briefs by September 4, 2002, marking the close
The City of Merrill operates a Wastewater Treatment Plant which employs four
operators including the Head
Operator, Tom Rein. On October 17, 2001, a notice was posted
pursuant to the provisions of the CBA announcing the availability of a "Trainee
Operator" position at the Wastewater
Plant. This position became available as a result of the departure of one of the four
operators at the plant. This
position required a six-month probationary period and a training period of one year. At the
end of the one-year training
period, the successful candidate was required to hold licensure as a Wastewater Treatment
Operator I, Class IV or be
progressing toward that licensure. Licensure as an Operator I, Class IV requires
one to successfully complete eight
examinations administered by the Wisconsin Department of Natural Resources. The
requirements of the posting
required that the Trainee Operator complete the first two of the eight tests within two years
of his/her date of
employment and the remaining six tests within six years of the employment date. The
Grievant signed this posting
but his signature was affixed after the scheduled cut-off period. He was thus not considered
and a less senior employee,
Kim Kriewald, was awarded the Trainee Operator position. The decision to award the
position to Kriewald consequent
to the initial posting was based upon seniority alone.
As it turned out, the October 17, 2001 posting was determined to be defective in that
failed to post the notice in the Parks Department. The CBA required that it be posted in all
Departments. The Union grieved this posting defect and the City ultimately re-posted the
all City departments. In the interim, Kriewald had been transferred to the Water Treatment
started work as the Trainee Operator on November 26, 2001. When the City agreed to
notice on December 3, 2001, one week following Kriewald's transfer to the Water Treatment
Kriewald was sent back to his prior position.
The Grievant signed the December 3, 2001 (second) posting within the prescribed
period, as did Kriewald and two other less senior employees. This second posting, like the
contained a requirement that candidates have a "basic knowledge of math" and the "ability to
wastewater treatment principles." This time, though, the City Engineer/Utility Manager, Pat
Geisendorfer, devised an examination for the candidates designed to test their knowledge of
math." The test contained 21 questions, a number of which related directly to water
and principles. A score of 75% was established by Geisendorfer as a passing grade. Of the
candidates only Kriewald passed. His score was virtually perfect: he missed only one part of
a four-part question. The Grievant scored 67.9% and the other two candidates scored lower
still. On the
basis of the results of this test, Kriewald was the only candidate found to be qualified and
awarded the position. This grievance followed.
The parties were able to stipulate to the issue before the Arbitrator as follows:
Did the City violate the Collective Bargaining Agreement by
failing to award the posted
Trainee Operator position to the Grievant? If so, what is the proper remedy?
ARTICLE 4 SENIORITY
A) It shall be the policy of the
recognize seniority in filling vacancies, making promotions, and in laying
off or rehiring, provided, however, the application of seniority shall not materially affect the
efficient operation of the
various departments covered by this Agreement.
. . .
E) Whenever a vacancy occurs, or a
new job is
created, it shall be posted on the bulletin boards in each department
covered by this Agreement for a period of one (1) week. All vacated positions shall be
posted within four (4) working
days from the date the vacancy occurred. The posting shall contain the prerequisites for the
position to be filled and
said prerequisites for the position to be filled shall be consistent with the requirements of the
job. Each employee
interested in applying for the job shall endorse his/her name upon such notice in the space
provided. The full time
employee with the greatest seniority with the department where the vacancy or new position
exists, who can qualify,
shall be given the job. If no employee applies or can qualify within the department where
the position exists, it shall
be given to the full time employee with the greatest seniority who can qualify, from within
the other departments
covered by this agreement.
. . .
F) The initial determination as to an employee's qualifications
be made by the Employer. However, if there is
any difference of opinion as to qualifications of any employee, the Union Committee and/or
Union Representative may
take the matter up for adjustment under Article V, Grievance Procedure.
G) An employee being promoted to a
classification shall serve a probationary period of sixty (60) days
(calendar), with the exception to Sewage Treatment Plant, which will be six (6) months. If
the employee fails to qualify
within the sixty (60) day probationary period, or six (6) months for Sewage Treatment Plant,
he/she shall return to
his/her former job at the former rate of pay. During the probationary period, the employee,
except an employee
promoted to the position of Mechanic, shall maintain his/her previous rate of pay. At the
completion of the
probationary period, he/she shall be increased to the maximum rate in the classification . . .
ARTICLE 24 MANAGEMENT
A) The City possesses the sole right to operate City
all management rights repose in it, subject only
to the provisions of this Contract, which restricts those rights. These rights include, but are
not limited to the
. . .
3) To hire, promote, transfer, schedule, and
. . .
13) To determine the methods and
by which City operations are to be conducted;
. . .
THE PARTIES' POSITIONS
The Union argues that it does not have a burden of proving that the CBA has been
violated. It maintains that,
although arbitrators "have often placed the burden of proving 'contract interpretation' cases
upon the Union," and
although this is "basically a 'contract interpretation' dispute," arbitrators, in cases dealing
with issues of seniority and
ability, have "simply considered all the evidence and arguments of both parties and decided
from a consideration
thereof whether the employer's determination should be upheld." (Citing North Country
Dodge, 77 LA 391, 392-393 (Craver, 1981), among others.) In cases involving issues where
less senior bidders were selected, the Union says
arbitrators have required the employer to show why some criteria other than seniority was
relied upon. (Citing
Wapato School District, 91 LA 1156, 1159-62 (Gaunt, 1988), among others.) The Union
concludes that a
"logically neutral approach" should prevail on the issue of burden of proof and that "no
burden (should be) borne by
The Union argues that the contract language contained within the Seniority Rights
section under Article 4,
specifically paragraph (E), clearly sets forth the intent of the framers that preference be given
to applicants from within
the bargaining unit on the basis of seniority. It refers to this section of Article 4 as creating
a "sufficient ability"
standard of selection of applicants and asserts that it supports the selection of the applicant
with the highest seniority
"so long as the employee meets minimum qualifying standards." Furthermore, the fact that
Article 4 contains language
to the effect that the most senior bidder "who can qualify" for the
position means that the framers intended that applicants merely have the aptitude and
ability to learn the functions of
the position once selected. This analysis is reinforced in this case, according to the Union,
by the fact that the position
is entitled "Trainee Operator" and that the use of the word "trainee" suggests that the
selectee need not be fully
qualified initially but allowed to gain proficiency during an "extended" training period. The
Union says that the
Grievant should be given a "fair trial" on whether he can do the job citing Arbitrator Warns
in Dayton Power and
Light Co., 28 LA 624, 626 (1957) in support, and quotes Elkouri and Elkouri at page 856,
for the proposition that
"arbitrators generally are inclined to view that if there is a reasonable doubt as to the ability
of the senior employee and
if the trial would cause no serious inconvenience, it should be granted." The Union refers to
a "trial period" of 10 days
within which a successful bidder may elect to return to his/her former job. It says this
provision is found in Article 4,
paragraph (G). Also found at this location, according to the Union, is a provision allowing
the employer to determine
initial qualifications. (The Arbitrator does not find these provisions under Article 4,
paragraph (G) or anywhere else
in the CBA.)
Regarding the use of a test as a means to "improve on seniority as a criterion for
selection," the Union observes
that many arbitrators have held "that tests must be properly evaluated in light of the contract
provision's relation to
seniority and job requirements, and that they must not be used in a manner inconsistent with
the contract." The Union
charges that Geisendorfer was happy with the initial selection of Kriewald and devised the
test as a means to ensure
that he would be the successful bidder the second time around. Hence, concludes the Union,
the test was nothing more
than a vehicle by which the seniority provisions of the CBA could be circumvented. The
contract does not provide the
employer with the right to administer such a test, although the Union does admit that the
Employer has the right to
give "reasonable and appropriate performance tests as an aid in determining the ability of
(citing Elkouri at page 847) It reminds the Arbitrator that most arbitrators look upon the use
of proper tests with favor
and refers me to Arbitrator Dworkin in the case of Mead Containers, 35 LA 349, 352 (1960)
in support of its
assertion that a proper test, fairly and objectively administered, will tend to allay suspicion of
competing employees. But the test in this case, and its administration, managed to
accomplish just the opposite result.
The Union asserts that an appropriate test should measure aptitude as opposed to knowledge
because it is generally
deemed unreasonable for an applicant to have a high degree of specific knowledge about a
position they have never
filled. The language of the CBA supports this line of reasoning by referring to bidders "who
can qualify" proving that
the framers intended that new internal applicants be given the opportunity to learn the job
within a realistic amount
of time following selection. The fact that this particular position is entitled "Trainee
Operator" supports this argument.
The Union points to a number of questions which it argues test specific knowledge about the
position, to wit:
Question 1: Sewage is considered a
potable water source. True or false?
Question 7: How
many gallons of caustic soda is needed to make 250 gallons a 5% solution? How many total
gallons of solution will there be?
Question 8: B.O.D. and suspended solids
are identifying characteristics of drinking water? True or false.
Question 11: A 24"
pipe flows at 10 ft/second. What is the flow volume?
Q = VA (Q = cubic feet/second) =
V(feet/second) x A (pipe area in square feet)
Flow volume = velocity x pipe area
Area = 3.14 x Radius squared (Radius in
Question 12: A
sediment basin has a volume of 100,000 gallons. There is a constant flow rate
of 500 gallons per minute. What is the detention time?
Question 15: Name
2 types of material that are prohibited from being discharged into the sewer
Question 16: Explain
the difference between planned and corrective maintenance. Which is
preferred and why?
The Union accuses the City of relying solely upon the results of the test to make the
It says that arbitrators normally conclude that, while tests may be used to verify ability, an
"may not base its determination of ability solely upon the results of a test," paraphrasing
Volz in Peabody Coal Co., 87 LA 758, 762 (1985).
Finally, the Union questions the Employer's failure to call the winning applicant,
to testify at the hearing and suggests that the Arbitrator should "assign an adverse inference"
"prevailing in this case is in Kriewald's personal self-interest."
The City argues that it has the inherent authority to set minimum job qualifications
CBA contains language to the contrary. It has the authority, also, to administer tests as part
authority to determine whether an applicant is qualified for a position, unless it has bargained
right away. The employer's exercise of these rights should not be disturbed by an arbitrator
they have been exercised in an arbitrary or capricious manner. Here, the City has not
rights away. Paragraph F, Article 4, Seniority Rights, expressly gives the City
the sole right to
determine qualifications. Also, Article 24, Management Rights, gives the City
the sole right to hire,
promote, transfer, schedule and assign employees and the record here, says the City,
that it was not arbitrary or capricious in making the determination that the Grievant was not
for what it refers to as the "Operator I" position.
The City says that, absent limiting contractual provisions, and subject to the
it not act arbitrarily, capriciously or in bad faith, it possesses the inherent right to establish
qualification and quotes Elkouri and Elkouri, How Arbitration Works,
5th Edition, pp.841-842,
(1997); Arbitrator Raleigh Jones in Tomahawk School District, Dec. No. 58213 (Jones,
Arbitator Amedeo Greco in Rusk County, Dec. No. 45807 (Greco, 4/92); Arbitrator
Honeyman in Antigo School District, Dec. No. 51544 (Honeyman, 5/95) and
Roger Williams in Lockheed Aircraft Corp., 25 LA 748, 750-51 (1956) in support of that
position. It maintains that in this case the CBA has no such limiting provisions. On the
Seniority Rights clause in Article 4 expressly provides that the City has the sole right to
qualifications and the Management Rights clause in Article 24 provides the City with the sole
to hire, promote, transfer, schedule and assign employees.
The City asserts that its establishment of minimum job qualifications (here, that the
have a basic knowledge of math) and its determination as to the Grievant's qualifications are
to the arbitrary and capricious standard and that the burden of proving that the employer's
were arbitrary or capricious rests with the Union. Article 4 (F) expressly provides the
City with the
sole right to determine qualifications, as does well-established arbitral principle and in
support of this
claim cites Arbitrator Greco in Rusk County, Dec. No. 45807 (Greco, 4/92):
employer has the inherent managerial right to establish minimum job requirements unless
express contractual language to the contrary." (quoting the Arbitrator); Arbitrator
Honeyman, Antigo School District, Dec. No. 51544 (Honeyman, 5/95) standing for the
proposition that a school board (an employer) possesses the authority to set qualifications for
teachers pursuant to its management rights, subject to the requirement that the school board
arbitrarily, capriciously or in bad faith; and Arbitrator Ralph Roger Williams in Lockheed
Corp., 25 LA 748, 750-51: "In the absence of specific language stating how the
ability, skill, and efficiency will be made and who will make it, the Company must
determine it as part
of the residuum of management prerogative which is always left after the original whole of
prerogative has been altered by express limitations which are the normal content of collective
agreements as we know them today." The City relies on Arbitrator Crowley's definition of
and capricious" found in Deerfield Community School District, Dec. No. 52550 (Crowley,
10/95): "A decision is arbitrary and capricious if it lacks a rational basis or results from an
unconsidered, willful and irrational choice of conduct" and concludes therefrom that any
based upon a rational justification is not arbitrary or capricious.
The City maintains that in requiring the applicants to take a test to determine their
skills it acted within its inherent managerial and contractual authority. It says that arbitrators
with favor upon the use of proper tests and refers this Arbitrator to Elkouri and Elkouri,
pp. 847-848 (1997) in support. It also cites the case of Independent School District No. 279,
71 LA 116 (Fogelberg, 1978) wherein the Arbitrator addressed a grievance relating to a
seniority clause" which provided that the successful bidder
would be the "senior most qualified applicant." In this case, the Arbitrator ruled that
had the right to select the employee with the higher score on the test rather than the most
bidder. Arbitrator Fogelberg stated:
. . . Even in the absence of specific contractual provisions,
management has been held entitled to
give "reasonable and appropriate" written, oral and performance examinations as an aid in
the relative ability of competing applicants. Moreover, the employer's ability to institute and
such tests has been widely supported (again, assuming no contract language to the contrary)
accordance with the exercise of "sound judgment."
The City says that the test it administered "was reasonably related to the basic math
required for the Operator I position" and that both parties agreed that it tested "math at a
level." Geisendorfer discussed the test with the Head Operator of the Wastewater Treatment
Mr. Rein, who is also a member of the Union, who agreed that the questions were
even suggested adding a few more difficult ones. The City also points to the testimony of
witness O'Brien, a former treatment plant operator, who testified that the questions were
associated with the nature of" the work. The City believes that the reasonableness of the test
supported by Rein's testimony that the questions are all mathematical computations related to
duties of the Operator I position and which are done every day in the plant and
that if a candidate
"couldn't get 75% correct on that exam that he isn't qualified." (Quoting the City's
The City next argues that because it gave a test to an applicant for the same position
and a test to another candidate at some time since then, this "past practice" supports the
authority to administer a test in this case. Anyway, the Union acquiesced in the City's right
administer the test because none of the members who were required to take the test
City's authority to give it.
The City maintains that its determination that the Grievant was not qualified for the
was not arbitrary or capricious because it informed the applicants that a basic knowledge of
a requirement for the position; that each applicant took the test under the same conditions;
applicant was given the same amount of time to complete the test; that each was advised he
a calculator or scratch paper during the test; that it has not bargained away its inherent
determine qualifications; that that inherent right includes the right to use tests to determine
qualifications; and that it exercised this right by administering a test that measured "basic
It believes that its decision regarding the qualifications of the Grievant may not be disturbed
the Union proves that it exercised its authority in an arbitrary or capricious manner. In any
Union did not advance any evidence that the City improperly scored the test nor does the
deny he received a failing grade (68%) or that the successful applicant received a passing
(96%). Also, each applicant was held to "the same standard," i.e. a passing score of 75%.
passing percentage was not arbitrary because the DNR requires the same percentage
score to pass
its certification tests. This, says the City, demonstrates a rational basis for setting a pass-fail
at the 75% level.
Finally, the City reiterates that the person selected to the position of "Operator I"
to the job with a basic knowledge of math." It maintains that it offered the job to "the only
who demonstrated a basic knowledge of math" and that the Union has introduced no evidence
establishing this decision to be arbitrary or capricious.
The Union's Reply
The Union criticizes the City for consistently referring to the position in question
"Operator I" position rather than its proper designation as "Trainee Operator." The Union
the Arbitrator that in order to become an "Operator I" one must serve as a trainee for a
period of one
year. Further, this is the only training position in the bargaining unit and its "training"
bolstered by the fact that the contract requires that the position be awarded to the most senior
"who can qualify." It says that the contractual language supports the conclusion that the
intended that the senior bidder be given the "opportunity to better himself" by being allowed
the Operator I position as a trainee.
The Union looks at the sequence of events leading to the introduction of the test and
concludes that Geisendorfer engaged in a concerted effort to manipulate the events
second posting in a way that would result in the position being awarded to Kriewald. This
equates to bad faith.
The Union observes that, although the City maintains that all applicants took the test
footing, Kriewald actually had a recent opportunity to serve in the position of Trainee
is reasonable to assume this experience provided him with an advantage over the other
Although no one can say with certainty what he learned during his tenure at the water plant,
on the test supports this hypothesis.
Finally, the Union says that the testimony of its expert witness, O'Brien, that the
duties of a
water plant operator relate more to the mechanical service of equipment than to mathematics
further doubt upon the assertion that math should have been the focus of applicant
The City's Reply
The City renews its argument that the Union must prove the City's determination of
qualifications, or lack thereof, to have been arbitrary, capricious or unreasonable. It states
that "whether the Grievant
satisfied the minimum job qualifications for the Operator I
position is the issue." (Emphasis in original) It says that the contract
language "who can qualify" is clear and
unambiguous and means that "seniority only becomes an issue if two (2) qualified candidates
post for a position." In
this case, the Grievant's seniority is not an issue because he was found not to be qualified.
Hence, the language means
that the more senior qualified candidate will be awarded the position. The burden of proof is
borne by the Union.
The City repeats its assertion that it has the inherent right to establish minimum job
qualifications subject to the arbitrary, capricious or unreasonable standard and cites numerous
in support. It refers to its initial brief and the cases cited therein in further support and
of them. It says that the cases cited by the Union in its brief actually support the City's
regarding burden of proof.
The City argues that the probationary period set forth in the contract does not require
to give a job to an unqualified applicant. It does not provide an opportunity for an applicant
his/her ability to perform the duties of the position by giving them a "tryout." It maintains
applicant must be qualified before starting the probationary period. If an unqualified
to be placed in the Wastewater Treatment Plant and were to make a mistake during the
"training period," there is a potential for disruption and danger. The test administered by the
measuring "basic math skills" reduces or prevents the possibility that an unqualified applicant
out a report incorrectly, subjecting the City to fines, or will make a mistake testing water
in "dire consequences for the City's water supply."
The City argues that the record does not contain any evidence that Geisendorfer
the process to accommodate Kriewald or that the City conspired against the Grievant.
The Union's attempt to discredit the test has no merit. In response to the Union's
that the test was unfair because it tested specific knowledge of the job, the City points to the
testimony at hearing which, it says, supports the conclusion that the test measures knowledge
at the junior high school level. So, the test measured basic math skills, not specific
knowledge of the
intricacies of the Operator I position. It points to Rein's testimony about the routine daily
math on the job and the fact that an Operator I must possess basic math skills.
Regarding the Union's assertion that it was not appropriate for the City to use the test
as the sole criteria in selecting the successful bidder, the City disagrees. It was appropriate
the test results proved that the Grievant did not possess basic math skills. Once that was
all other issues became irrelevant because the Grievant was not qualified for the job.
The City urges the Arbitrator to deny the Grievance because the evidence in the
establishes that the test administered by the City was reasonably related to the duties of the
The Union wrongfully argues that it bears no burden of proof in this case. The
analysis of the existence of
that burden was well stated by Arbitrator Levitan in Marathon County, Dec. No. 59413
(Levitan, 9/01), cited by
the City, and I adopt that analysis here without repeating it.
The City argued extensively, and referenced a plethora of cases in support of its
that it has the inherent authority to set minimum job qualifications and to administer tests as
its authority to determine applicant qualifications and that these management rights should not
disturbed by an arbitrator unless contract language exists which modify them or unless they
exercised in an arbitrary, capricious or unreasonable way, or in bad faith. The Union does
issue with these assertions and I agree that they fairly and accurately state the present
the law. Furthermore, I find no language in the CBA which modifies these rights, nor does
argue that any such language exists.
The City also argues that by requiring the applicants to take a test to determine their
basic math skills it acted
within its inherent managerial and contractual authority. While the Union argues that the
contract does not give the
City the right to administer such a test, it does agree that the City generally has the right to
give a "reasonable and
appropriate" performance test as an aid in its quest to measure applicant qualifications. The
City is correct in its
interpretation of the parameters of its contractual and managerial boundaries in this regard.
The Union is also correct
that the City has the right to give a "reasonable and appropriate" test which must be
"properly evaluated in light of the
contract provision's relation to seniority and job requirements" and that such a test "must not
be used in a manner
inconsistent with the contract." Both sides cite Arbitrator Fogelberg in Independent School
District No. 279, 71
LA 116 (Fogelberg, 1978). The Union cites it in support of its argument that the test should
be reasonable and
appropriate and not used in a manner inconsistent with the contract; the City cites it in
support of its argument that
it acted reasonably in selecting the applicant with the highest score on the test. The contract
in the Independent
School District case, unlike the case here, contained a "modified seniority clause" which
provided that the "senior
most qualified applicant" be awarded the position. In the instant case, the
contract's seniority clause would award the
position to the most senior bidder "who can qualify" for the job. Hence, the
question here is not who is the most
qualified senior bidder but who is the most senior bidder who
can qualify for the job.
The City argues that past practice supports its authority to administer a test in this
need not address this contention since the Union admits, and I agree, that the City has, and
right to administer a test to aid it in its decision regarding qualifications. Consequently, I do
upon the existence, or lack thereof, of a binding past practice relative to the administration of
for the position of Trainee Operator.
Having determined that the City had the authority to determine minimum job
for the position of Trainee Operator and that it had the authority to administer a test to aid it
making a decision as to which applicant/s were qualified for that position, we turn to an
the test itself to determine whether it was arbitrary, capricious, unreasonable or in bad faith:
was it fair.
The test must actually measure what it purports to measure, i.e. a basic knowledge of
The word basic is defined as "essential; fundamental," Funk & Wagnalls New
of The English Language, Vol. One, (1987). It is generally understood that the
mathematics are four: addition, subtraction, multiplication and division. Therefore, a "basic
knowledge of math" would mean a knowledge of the fundamentals of math; a knowledge of
subtraction, multiplication and division. A cursory review of the questions reveals that the
in fact, contain questions which required the application of math fundamentals. And a
review of the
results of the Grievant's test show that he answered the majority of those questions correctly,
including the following:
Question 2: There are 7.48 gallons of water
per cubic foot. How many gallons in 40 cubic feet?
This question required him to
demonstrate his ability to multiply.
Question 3: Water
weighs 62.4 lb/cubic foot. How much does 7.48 gallons weigh?
This question required him to
demonstrate his ability to divide and multiply.
Question 7: How
many gallons of caustic soda is needed to make 250 gallons a 5% solution? _________.
many total gallons of solution will there be?
Question 9: A meter
reads 491 on September 30, 2000, and reads 731 on September 30, 2001. What is the
average monthly usage? What is the average quarterly usage?
This question requires the application
of subtraction and division.
Question 10: One
gallon of water contains 3.785 liters. How many liters are in 20 gallons?
12:A sediment basin has a volume of 100,000 gallons.
There is a constant flow rate of 500 gallons per
minute. What is the detention time?
This question requires the application
Question 18: What is
the average daily flow of the following? 1100 GPD, 900 GPD, 800 GPD, 1000 GPD, 1200
GPD, 1300 GPD & 1400 GPD
This question required that the
Grievant demonstrate his ability to add and divide.
The questions he failed to answer correctly required a knowledge of specific geometric
the conversion rate from Fahrenheit to Centigrade, a knowledge of "flow volume"
in one case, he merely misplaced a decimal point.
But the test contained more. Four of the questions, for example, were completely
to mathematics and cannot, therefore, be said to test for a basic knowledge of math. These
relate specifically to knowledge one would learn as an Operator Trainee and not to
basic or otherwise. They are:
Question 1: Sewage is considered a
potable water source?
Question 8: B.O.D.
and suspended solids are identifying characteristics of drinking water?
Question 15: Name
2 types of materials that are prohibited from being discharged into the sewer
Question 16: Explain
the difference between planned and corrective maintenance. Which is preferred and
The inclusion of these questions on the test go beyond the stated purpose of the test,
i.e. to measure
the applicant's basic knowledge of math, and penetrate the area of measuring the applicant's
knowledge of the position he/she seeks to fill. I agree with the Union that to expect an
be well versed in specific aspects of a job he/she has never held is unreasonable.
The test purports to measure whether the applicant has a basic knowledge of math.
according to Giesendorfer, who designed the test and set the passing grade at 75%. He used
not because of some detailed consideration of the number of questions one would have to
correctly in order to provide the City with evidence that one was knowledgeable in the basics
but because 75% is what the Department of Natural Resources uses on their certification
City says that because the DNR uses 75% then its use of 75% is not arbitrary. I disagree.
tests for specific knowledge in a specific subject area following specific training in that
and has determined that a certain score evidencing a minimum threshold of knowledge in the
subject area is required before it will issue a certification or license. The test given by the
designed to determine only whether the taker had a basic knowledge of math. The record
explain why Geisendorfer chose to include 28 questions or portions of questions, but in any
to "pass" the test one had to score 21 correctly out of 28. Geisendorfer did not explain the
behind his decision that 21 correct answers would constitute evidence that one
possessed a basic knowledge of math, where 19 or 20 correct answers would not. The
answered 19 questions correctly amply demonstrating his knowledge of basic math but yet he
under the Geisendorfer guidelines.
As noted above, many questions required the use of algebra and geometry, generally
considered to be advanced
branches of mathematics. Even so, the Grievant answered the majority of these questions
correctly. Further, many
of these questions were specific to the Operator I job in that they, as Geisendorfer and Rein
confirmed, related to
calculations performed on the job on a daily basis, and in some cases
many times a day. Kriewald's experience in
the plant afforded him at least some exposure to the formulas and calculations which
appeared on the test. Prior to
his move to the Water Treatment Plant, he worked in the Water Department. It is hard to
say to what extent this
experience aided Kriewald in taking the test, but it is safe to say that it gave him an unfair
advantage over the other
applicants in those areas which were job specific and which involved calculations used daily
in the Water Treatment
For the reasons set forth above, I find that the test, as designed and as evaluated was
arbitrary and capricious. As I stated above, the Grievant did demonstrate his knowledge of
math and was therefore qualified for the position of Trainee Operator pursuant to the
qualifications set forth by the City. I also find that the Union, wittingly or otherwise, has
burden of proof. Kriewald, having worked in the plant for a week prior to the testing, had
advantage over the rest of the applicants and the inclusion of questions on the test relating
to the position of Operator I was unreasonable and unfair.
The contract language in Article 4, Section (E), clearly supports the Union's assertion
that the position should
have been awarded to the most senior applicant who could qualify. Since I have determined
that the Grievant was
qualified for the posted position of Trainee Operator, there is no occasion for me to consider
the specific meaning of
the term "can qualify" as it relates to the facts of this case. Nor is there reason for me to
comment on the Union's
allegations that management favored one applicant over another and in some way attempted
to manipulate events to
achieve a desired result. Suffice it to say that the record does not fully support such a
charge. It is also inconsequential
that the City consistently referred to the posted position as the "Operator I" position rather
than the "Trainee Operator"
Accordingly, I find that the City did violate the CBA by failing to award the posted
position to the Grievant.
In light of the foregoing, it is my
The City will offer the position of Trainee Operator to the Grievant, Robert A.
10 days of the date of this award. No back or differential wages are assessed.
Dated at Wausau, Wisconsin, this 3rd day of December, 2002.
Steve Morrison, Arbitrator