BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MUKWONAGO AREA SCHOOL DISTRICT CLASSIFIED
LOCAL 1101, AFSCME, AFL-CIO
MUKWONAGO AREA SCHOOL DISTRICT
Mr. Michael J. Wilson, Representative at Large, Wisconsin
AFSCME, AFL-CIO, 8033 Excelsior Drive, Suite B, Madison, Wisconsin 53717-1903,
appearing on behalf of Local 1101, AFSCME, AFL-CIO, Mukwonago Area School District
Davis & Kuelthau, S.C., by Attorneys Mark L. Olson and Daniel
Chanen, Suite 1400, 111 East Kilbourn Avenue, Milwaukee, Wisconsin 53202-
6613, appearing on behalf of the Mukwonago School District.
The Mukwonago Area School District (hereinafter District) and Mukwonago Area
District Classified Employees Local 1101, AFSCME, AFL-CIO (hereinafter Union) are
parties to a
collective bargaining agreement that was in effect at all times relevant to this proceeding
provides for final and binding arbitration of certain disputes. A request to initiate grievance
arbitration was filed with the Wisconsin Employment Relations Commission on October 31,
The request for arbitration asked the Wisconsin Employment Relations Commission to
panel of five staff arbitrators. Said panel of arbitrators was forwarded to the parties on
2, 2001. On February 15, 2002 (received by the WERC on February 19, 2002) the parties
Commissioner Paul A. Hahn as arbitrator. Commissioner Hahn was appointed to act as
on February 19, 2002. Hearing in the matter took place on September 17 and October 16,
the offices of the Mukwonago Area School District in Mukwonago, Wisconsin. The hearing
transcribed. The parties were given the opportunity to file post hearing briefs. Post hearing
were received by the Arbitrator on December 2, 2002 (Union) and December 4, 2002
parties were given the opportunity and filed reply briefs. Reply briefs were received from
on December 23, 2002. The record closed on December 23, 2002.
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.
Did the Employer violate the terms of the
collective bargaining agreement when it did not
award the vacant position driver/custodian/food service to the grievant? If so, what is the
Did the District violate the terms of
Section 10.04(A) of the 1999-2001 collective bargaining
agreement when it promoted Gary Johnson to the position of van driver in May of 2001?
Did the District violate the terms of the
collective bargaining agreement when it failed to
promote Grievant to the position of Van Driver in May of 2001?
If so, what is the appropriate remedy?
Article 2: MANAGEMENT
2.01 RIGHTS: The Board and/or its designee
(hereinafter the term "Board" shall connote Board
and/or its designee) possesses the sole right to operate the school system and all management
rights repose in it, subject only to the provisions of this contract and applicable law. These
rights include, but are not limited to the following:
operations of the school system;
B. To establish reasonable work rules and
schedules of work in accordance with terms
of this Agreement;
C. To hire, promote, transfer, schedule and
assign employees in positions with the school
system in accordance with the terms of this Agreement;
D. To suspend, demote,
discharge, and take
other disciplinary action against employees
for just cause;
E. To relieve employees from their duties
because of lack of work or any other legitimate
F. To maintain efficiency of school System
G. To introduce new or improved methods or
facilities; or to change existing methods
or facilities provided if such affects the wages, hours, or working conditions of the
employees, the Union will be notified in advance and permitted to bargain;
H. To determine the kinds and amounts of
services to be performed as pertains to school
system operations, and the number and kinds of positions and job classifications to
perform such services;
I. To determine the method, means and
personnel by which school system operations
are to be conducted;
J. To take whatever reasonable action is
necessary to carry out the functions of the
school system in situations of emergency;
K. The Union recognizes the Board has the
right to contract or subcontract for goods
or services, provided no unit employee shall be laid off or suffer a reduction in hours
below forty (40) hours per week. Prior to exercising the subcontracting rights
contained in this section, the district will exhaust the posting provisions set forth at
L. Nothing contained in this Article shall be
construed as divesting an employee of any
right granted elsewhere in this Agreement or the Wisconsin Statutes.
2.02 EXERCISE OF RIGHTS: the Employer agrees
that it will exercise the rights enumerated
above in a fair and reasonable manner, and further agrees that the rights contained herein
not be used for the purpose undermining the Union or discriminating against its members.
. . .
Article 5: GRIEVANCE
5.01 DEFINITION: A grievance shall mean a dispute
concerning the interpretation or application
of this contract.
. . .
5.02 STEPS IN PROCEDURE:
Step 1: The employee, alone,
or with one
(1) Union representative shall orally
contact his immediate supervisor within forty (40) calendar days, exclusive of
holidays, after he knew or should have known, of the cause of such grievance. In the
event of a grievance, the employee shall perform his assigned work task. The
employee's immediate supervisor shall, within five (5) calendar days, orally inform the
employee of his decision.
. . .
Article 10: PROMOTIONS AND
. . .
SELECTION: The selection of any applicant to fill the job vacancy shall be made on
the basis of skill, ability, other qualifications and seniority; however, if the skill, ability
and other qualifications of two or more employees are relatively equal, the employee
with the greatest District-wide seniority shall be chosen. The employee shall have a
sixty (60) calendar day probationary period in which to prove his qualifications for the
job. If during such sixty (60) day probationary period, the selected employee fails to
make satisfactory progress to qualify for the new position, or if the employee himself
elects to return to his former position, he may return to his former position and
selection shall be made among the remaining employees who signed the posting in
accordance with the criteria set forth above. Any question involving the qualification
of an employee may be submitted to the Grievance Procedure. Notification by the
District to the chosen bidder shall be made within fifteen (15) working days following
the end of the posting period. The award of a posted job shall be made within twenty-five
(25) working days following the end of the posting period.
. . .
Article 28: PERSONNEL FILES
28.01 PERSONNEL FILES: The employee shall have
the right, upon appointment, to review the
contents of his/her personnel file and to receive copies of any documents contained therein.
The employee shall be entitled to have a representative of the Union accompany him/her
during such review. At least once every two (2) years, the employee shall have the right to
indicate those documents and/or other materials in his/her file which he/she believes to be
obsolete or otherwise inappropriate to retain. Said documents shall be reviewed by
Administration and if they agree that the documents are obsolete or otherwise inappropriate
to retain, then such documents shall be destroyed. No evaluations or negative material shall
be placed in his/her personnel file unless the employee has an opportunity to review such
material by affixing his/her signature to the copy to be filed with the express understanding
that such signature in no way indicates agreement with the contents thereof. The employee
shall also have the right to submit a written answer to such material and his/her answer shall
be reviewed by the Administration and attached to the file copy. This provision is not
intended to apply to routine and/or clerical additions to personnel files.
STATEMENT OF THE CASE
This grievance involves the Mukwonago Area School District and the Mukwonago
School District Classified Employees Local 1101, AFSCME, AFL-CIO (Jt. 1). The Union
that the District violated the collective bargaining agreement by failing to promote the
the position of Van Driver pursuant to Section 10.04(A) of the collective bargaining
2) Section 10.04(A) states in pertinent part:
The selection of any applicant to fill the job vacancy shall be
made on the basis of skill, ability,
other qualifications and seniority; however, if the skill, ability and other qualifications of two
employees are relatively equal, the employee with the greatest District-wide seniority shall be
In responding to the grievance, the District's Business Manager William Cantwell
the skill, ability and qualifications of Grievant and Johnson, the other employee who bid for
position, were not relatively equal and therefore Cantwell denied the grievance.
(Jt. 11) In a further response to the grievance, the School Board, by its
attorney, advised the Union
Business Representative that the grievance would continue to be denied. (Jt. 12) With
denial of the grievance, the grievance in the matter was submitted to arbitration under the
collective bargaining agreement.
The District operates a K-12 public school district in Mukwonago, Wisconsin. The
of approximately 3,000 students is carried out in several different school district buildings.
of 2001, the District posted the driver/custodian/food service (the van driver position). (Jt.
posting listed the following qualification s for the positions:
1. Must posses a
valid Wisconsin driver's license and the driving record of the employee is
subject to the approval of the insurance company; CDL may be required.
2. Must have the
ability to do sustained lifting (50 pounds).
3. Ability to work without
4. Ability to do minor
maintenance of delivery vehicle.
5. Ability to plan, schedule and
establish priorities in emergencies.
6. Ability to work/relate with
staff, students, and public.
7. Working knowledge of
materials, equipment and methods commonly used in general cleaning
and maintenance work.
8. Ability to perform general
cleaning, maintenance work, warehouse receiving and inventory
9. Ability to plan and schedule
cleaning and maintenance projects.
10. Ability to use computer
11. Must have demonstrated
reading, math and writing skills to adequately perform job function.
12. Knowledge of and/or
experience in boiler operations and maintenance or must complete
WCTC or equivalent boiler course within one year.
In addition to the twelve job qualifications so identified, the job posting listed 14
responsibilities that define the Van Driver position:
1. Delivery of food supplies and prepared food to
satellite schools throughout the District.
2. Receives and checks in
supplies in Central Kitchen as the need arises. Restocks, rotates and
dates food products, maintaining proper inventory control. Gives daily assistance with
3. Cleans all assigned areas in
Central Kitchen using proper methods and equipment. Includes
major summer cleaning at the Central Kitchen and related storage areas.
4. Performs major summer cleaning in the high
school serving kitchen and related storage areas.
5. Completes basic
maintenance tasks in Central Kitchen such as replacing light bulbs,
monitoring temperatures, etc.
6. Collects and disposes of all
waste in Central Kitchen recycled and otherwise.
7. Keeps all equipment in
Central Kitchen, including boiler, in good operating condition,
lubricating, sharpening, adjusting and minor fixing.
8. Delivery of inter-school
mail and correspondences, etc.
9. Delivery of equipment and
consumable instructional supplies.
10. Timely delivery of custodial
11. Responsible for minor
maintenance and weekly cleaning of delivery vehicles.
12. Keeps Central Kitchen and
dock neat and clean at all times.
13. Informs Supervisor,
Buildings & Grounds and /or Food Service Supervisor regarding
maintenance of equipment and facilities.
14. During vacation and summer
periods, other duties as assigned by Food Service Supervisor
and/or Supervisor, Buildings & Grounds.
The Van Driver is an essential employee in the daily operation of the District. The
is responsible for the delivery of over 2,000 prepared meals from a central kitchen to six
schools in the District. The Van Driver is responsible for maintaining the kitchen boiler
which is used
to operate a significant part of the kitchen's food preparation equipment. Along with the
maintenance in the kitchen, the Van Driver is responsible for regular cleaning of the kitchen
proper care and rotation of kitchen supplies and food preparation materials. The Van Driver
responds to requests for supplies from outlying District buildings as well as requests from the
staff for perishable items. While the Van Driver is supervised by the Supervisor of the
Service program and the Supervisor of Buildings and Grounds, this supervision is seldom
directly, supporting the need for the Van Driver to be able to work well without supervision
The Van Driver position was posted District-wide from April 24 through April 30,
Two employees, the Grievant and Gary Johnson, both custodians in the Clarendon school
applied for the Van Driver position. (Jt. 4) The Grievant at the time of the job posting and
determination of who would be awarded the Van Driver position had five years and 7.75
employment with the District, and Johnson had four years and 9 months employment with
District. (Jt. 4)
Harris and Kraus, the two supervisors, reviewed Grievant's and Johnson's
the Van Driver position. Grievant and Johnson completed a "skills and experience record"
summarizing their employment history, educational record, special skills and ability and
information. (Jt. 6 & 8) Harris and Kraus evaluated the two applicants using a
District "food service qualifications" form for the Van Driver that relied on the
records with the District and Kraus' opinion as the overall supervisor of the custodians
District. (Jt. 5 & 7) Harris and Kraus also conducted personal interviews with the
Johnson using a set of questions asked of each applicant from which they developed notes
the applicant's responses. (Jt. 9 & Dist. 10, 11, 13 & 14) Harris and Kraus also
spoke with John
Shanahan, the principal of the school building in which both employees worked. Neither
Kraus spoke with the immediate supervisor of the two applicants, Caren Jasinski, who had
Grievant's and Johnson's immediate supervisor since 1999. Jasinski was in the same
as Grievant and Johnson.
Based on the results of the aforementioned process, Harris and Kraus recommended
District Director of Business Affairs, William Cantwell, that the District promote Johnson to
Driver position. Cantwell also spoke with Principal Shanahan, reviewed the personnel files
Grievant and Johnson and accepted the recommendation of Harris and Kraus. Cantwell made
final determination for the District to award the Van Driver position to Johnson. Cantwell
that the qualifications of the Grievant and Johnson were not relatively equal and therefore
would not play a role.
The District's action led to the filing of a grievance. (Jt. 2) The parties failed to
resolution through the grievance procedure. The matter was appealed to arbitration. No
raised as to the arbitrability of the grievance. Hearing was held by the Arbitrator on
2002 and October 16, 2002.
POSITIONS OF THE PARTIES
The Union takes the position that the Grievant and Johnson were relatively equal in
ability and other qualifications and that the Grievant, as the senior applicant, should have
promoted to the Van Driver position in May of 2001. The Union submits that Joint Exhibits
7 were the key documents the District used at the time of the Grievant's job bid to determine
differences between the two applicants. Jt. 5 (Grievant) and Jt. 7 (Johnson) were
by Harris to determine the qualifications for the Van Driver position. Each form listed 10
qualifications of which 9 were used. Each qualification was given a score of plus 1, exceeds
requirements for this area in current position, a zero, meets requirements for this area in
position, or a minus 1, improvement needed in this area. After each qualification, there was
for comments which were completed for six of the nine qualifications. The Grievant
achieved a score
of minus 6 and Johnson achieved a neutral score of 0. The Union argues that Grievant's
should have been zero because each instance where the Grievant scored a minus 1, the
on obsolete, inappropriate documents from Grievant's personnel file and failed to fairly
Grievant in a timely manner.
The Union points out that the only formal evaluation of Grievant prior to the May
Driver application was a 1997 evaluation. There was, the Union points out, no current
performed by the District until the Fall of 2001, after Johnson had been awarded the Van
position. The District conducted biannual evaluations but had not performed a biannual
for the period November of 1999 to November of 2001 which would have been more
the 1997 evaluation. The Union avers that the evaluation from November of 1999 to
2001 indicates that Grievant "meets requirements" in all areas including those areas checked
"needs improvement" in the December 1997 evaluation. (U. 1)
The Union argues that Kraus did not fairly evaluate the grievant because Kraus never
to Grievant's immediate supervisor Jasinski and based his remarks on the 1997 evaluation
warning letters from 1997 and 1998. The Union submits that Kraus did not routinely
Grievant's work activity and could not possibly know about Grievant's job performance on a
day-to-day basis. Although Principal Shanahan was questioned as to his beliefs regarding the
of the applicants and decided that Johnson was a better candidate, Shanahan's comments do
up on Joint Exhibit 5.
The Union takes the position that Joint 5 and Joint 7 should be the critical documents
decide this arbitration because, in his response to the grievance, Cantwell only referenced
documents and never referenced the recommendation of Shanahan, the personal interviews
applicants' personnel files. Therefore, the District should be limited to defending the
on Joint 5 and Joint 7 and should not be allowed to enhance its case by testimony and
only came out at the arbitration hearing. The Union argues that Kraus made things up as he
along in his testimony and never bothered to tell Harris or Cantwell that he believed boiler
was a key factor, which he stated at the arbitration hearing was a significant factor. Further,
response to the grievance, Cantwell never informed the Grievant or the Union that boiler
was a significant reason why the Grievant did not receive the promotion.
The Union takes the position that during the hearing this was only one example of
where Kraus embellished the facts. The Union argues that Harris had to rely on Krause for
Grievant's job performance as she had never supervised the Grievant's work performance.
Union points out that it would have been impossible for the Grievant to receive a zero rating,
was a neutral rating, unless he had exceeded the requirements because in defining a good
Kraus testified that a good performer would meet expectations and at times would exceed
The Union takes the position that under applicable arbitration case law most
the "head and shoulders rule" that the junior employee's "skill, ability and other
be "head and shoulders" above the senior employee. Similar standards, the Union submits
"substantially and demonstratively superior," "significantly,
measurably, and demonstratively greater" and "measurably and substantially greater."
argues that generally arbitrators under modified seniority clauses find that management is
make the initial determination as to qualifications but that management's determination is
grievance and arbitration where the union challenges that determination as unreasonable,
capricious or discriminatory.
The Union submits to the Arbitrator that had Kraus done his job and fairly evaluated
Grievant in a relevant timeframe to the Van Driver promotion, the results would have been
the Union notes that Harris testified that if the Grievant's work performance had improved
1997 evaluation (Jt. 15) it would have made a difference in evaluating the Grievant.
argues that Grievant's job performance under Jasinski was given less consideration than the
of the previous head custodian Gaszak with whom Grievant had a problematic relationship.
the Grievant never filed any grievances regarding discipline in 1998, as he felt it would only
more problems, this punishment should not have affected the 2001 job promotion given the
span of time in which Grievant was never reprimanded again. The Union submits that the
13, 2001 evaluation (Union 1) is more representative of the Grievant's work performance at
of the promotion in May of 2001 than the evaluation in December 1997.
Finally, the Union argues that the Arbitrator should consider only the Employer's
findings of May 10, 2001 (Jt. 5) as the express and explicit reasons the Grievant did not
Van Driver position. The Arbitrator should not consider any embellishment of those findings
District after the fact in preparation for the Grievant's appeals and/or arbitration. Greater
should be given to Union Exhibit 1, the November 13, 2001 evaluation of the Grievant,
covered the period of the Van Driver job posting and application process, as it represented
Grievant a satisfactory work performance for a significant period immediately preceding the
promotion in question. The Union submits that great weight should be given to Jasinski's
that the relative qualifications between Johnson and Grievant were equal.
Based upon the record as a whole, the Union requests that the Arbitrator sustain the
and promote the Grievant to Van Driver with appropriate back pay.
The District takes the position that under Section 10.04(A), which both parties agree
contractual standard for resolving this dispute in this matter, the sole question in the
whether the "skills, ability and other qualifications of the Grievant and Johnson were
The District submits that the record in the case makes it clear that the applicants were not
equal and that Johnson was far more qualified for the Van Driver position and therefore
could not be a factor in the promotion.
The District submits that it used a fair and an impartial procedure for determining
candidates were relatively equal in their skills, abilities and qualifications. District argues
assessment tools used by the District (interviews, personnel file review, recommendations of
supervisors, and work history) are accepted criteria by arbitrators. The District takes the
both employees were treated equally and that based on upon the information obtained from
applicants' personnel files, the May 7, 2001 interviews and the May 16, 2001 candidate
and consultation with the applicants' building level supervisor (Shanahan), Harris and Krause
recommended to Cantwell that the District should promote Johnson for the Van Driver
Based upon this information and in order to comply with the specific conditions and terms of
10.04(A) of the collective bargaining agreement, Cantwell promoted Johnson as the employee
possessed superior ability, skills and qualifications and therefore seniority was not and should
have been a factor. The District argues that both Johnson and Grievant were given a fair and
opportunity to be evaluated for the position of Van Driver; therefore, the District's
Johnson was significantly more qualified for the position of Van Driver than the Grievant
arbitrary nor capricious.
The District submits that Harris and Kraus reviewed personnel files and spoke with
Shanahan about the Grievant's level of performance and based on this information Harris and
filled out a qualification checklist (Jt. 5) to determine whether Grievant's past performance as
custodian indicated that he met, exceeded or needed improvement in areas that would qualify
the Van Driver position. The result of this exercise (Jt. 5) was that the Grievant received a
negative 6 out of a possible score ranging from negative 9 to positive 9 with a score of zero
"qualified." Based on the minus 6 score the District argues it is clear the Grievant was not
for the Van Driver position. The District takes the position that the negative scores were
by documented evidence related to Grievant's past performance including a December 1997
evaluation, disciplinary letters in Grievant's personnel file from January 1998, March 1998
January 2001. The District submits that all of the evaluation scores were predicated upon
documentation which had never been grieved or challenged in any way by the Grievant.
The District argues that in contrast to Grievant's record, the record of Johnson
employee with no documented disciplinary problems. Johnson's most recent 1997 evaluation
indicated that Johnson was an exemplary employee who met or exceeded all job expectations.
and later Cantwell spoke with Shanahan, the Building principal who supervised Johnson and
Shanahan was in a position to directly evaluate both Grievant and Johnson's present level of
performance and Shanahan testified that of the two he would have hired Johnson for the
The District takes the position that Grievant's past record revealed a pattern of poor work
performance and disciplinary referrals, all of which were significantly uncontested until the
subject to this hearing. In contrast, Johnson's employment record revealed an employee
or exceeded expectation and was considered by his supervisors as a "good performer." The
posits that considerable
weight should be given to the conclusions of supervisors when supported by factual
the District argues was present in this case from the testimony of Shanahan and Kraus the
individuals who had supervisory authority over both Grievant and Johnson and whose
supported by the documentary evidence in Grievant's personnel record of inadequate
Further, the District submits that the Grievant's prior work experience before coming
Mukwonago School District did not match the job requirements and duties of the Van Driver
position. In contrast, the District argues that Johnson's previous work experience was
to the Van Driver position and that Johnson's skills, abilities and other qualifications more
matched the Van Driver position duties prepared by the District and gave further support for
ultimate selection of Johnson for promotion to Van Driver.
The District takes the position that a comparison of the candidates' interview
reasonably led the District to conclude that Johnson was more qualified than the Grievant.
District argues that the Grievant's interview answers indicated that he was not well-suited for
Driver position; the Grievant's answers to interview questions did not show an ability to
solve and act independently and he did not have the personal flexibility to react to changes in
schedule, a critical component of the Van Driver position. Further, Grievant's interview
indicated that he preferred a highly structured work environment and did things in a routine
which did not match the nature of the challenges faced by the Van Driver position, which has
constantly shifting job demand. The Grievant's interview raised legitimate concern about his
to do the job, and, in contrast to the Grievant, the interview responses provided by Johnson
there was a "fairly dramatic contrast" between Johnson's and Grievant's interview as testified
Harris. Johnson was able to give more complete answers to the questions asked of him,
he was flexible and liked variety in his daily schedule and enjoyed the challenge of making
independent decisions which led to a favorable impression of Johnson's ability to perform the
The District avers that both Grievant and Johnson received an interview in which they were
the same questions. Contemporaneous notes were taken of the May 7, 2001 interview by
Kraus and both formed subsequent opinions supporting Johnson as the better candidate. The
argues that management's assessment of the employees through the interview process should
deference so long as the interviews were not conducted unfairly. While interviews are
does not make them unreasonable, suspect or inappropriate and subjective interviews are
the only way to judge intangible qualities of a candidate for a certain position.
In its reply brief, the District submits that the District was entitled to and did in fact
more than the contents of Joint Exhibits 5 and 7, and argues that the Union's position is
gross misrepresentation of the testimony and of the exhibits. The District submits that the
argument that only Joint Exhibits 5 and 7 could be used is misguided since
there were multiple factors considered in making the hiring decision, and it is wholly
employers to consider past performance in promotional circumstances. The results of the
procedure revealed a pronounced real and significant difference between the skills, ability
qualifications of Johnson and the Grievant.
The District argues that virtually all matters considered by the District in this
that the Grievant's previous work experience and Grievant's qualifications were vastly
inferior to the
qualifications demonstrated by Johnson using the same set of criteria. The District repeats
created a fair and impartial multiple step procedure for determining the relative skills,
qualifications of the applicants. The District objects to the Union's attempt to minimize the
importance of the prior work history, interviews and discussions with the two employees'
by speciously attempting to reduce the entire decision to the information contained in Joint
5 and 7 and then attempting to ignore the Grievant's deplorable and inferior "minus 6"
District argues that it is incredible that the Union would have the Arbitrator believe that
Kraus conducted interviews, spent extensive time reviewing personnel files, spent time
candidates' work history and consulting with the candidates' supervisor, but then did not
any of the information gleaned from this process except as contained in Joint
Exhibits 5 and 7; this
allegation, the District argues, is simply not plausible. The District submits that Joint
Exhibits 5 and
7 were appropriate tools for reviewing the candidates' level of performance and were
by the District in making the final decision to hire Johnson for the position. The District
Joint 5 and 6 merely confirmed other information gathered by Harris and Kraus in the
The District argues that it was a fair and equitable means of evaluation to review the
records of Grievant and Johnson; the Union argument that the prior discipline and poor
should not be considered in considering future promotions has been summarily rejected in
arbitration case law. The District submits that it would have been negligent not to have
considered personnel records, particularly in view of the Grievant's extensive documented
poor performance, failure to follow supervisory directives and negative attitude toward his
The District rejects Grievant's argument for not grieving or placing rebuttals in his
record for the March 3, 1998 warning that there was a conspiracy between the Union
Kraus. Rejecting this argument of the Grievant, the District argues that the more credible
is that the Union President agreed with the decision to extend the Grievant's probation and
Grievant never went to the Union because Grievant knew that his performance was below
The District responds to the Union's position that the District failed to consult
stating that the Union puts too much stock in the evaluation of Jasinski a fellow bargaining
member who did not have the authority to evaluate the performance of her fellow
employees. The District points out that the records show that Jasinski is not a person
customarily evaluates employees. The District submits that while Jasinski was entitled to her
of Johnson and the Grievant, it was Kraus and Shanahan, the two individuals who had
authority over the two employees at the time of the promotion decision, who were most
consulted by Harris as to their opinions on the respective performance of the two employees.
District notes that Jasinski wrote the most relevant contribution to the record of the Grievant
January 16, 2001 memorandum to Grievant in which she advised him that his use of a
on duty was a violation of management directives and was unacceptable.
The District takes the position that Union exhibit 1, the November 1, 2001 evaluation
Grievant, could not have an impact on the promotion decision made in May of 2001 and
should not be considered. The District notes that Kraus testified, reviewing Union Exhibit 1,
over half the evaluated areas the Grievant still needed improvement.
Lastly, the District rejects the Union's claim that Joint Exhibit 11 is proof that the
abandoned any argument it might otherwise have made regarding Kraus's evaluation of the
performance. Joint 11 was Cantwell's response to the grievance. The District submits that
has an unjustified expectation that at each step of the grievance process the District must
disclosure of every reason for denying the grievance. The District takes the position that the
produced a response which was sufficient to justify its position in Joint Exhibits 11 and 12,
District was not required to justify its position by including every reason and every detail in
response to a grievance. The District argues that under the contractual grievance procedure
District need not have responded at all since if it did not respond within the time limits set
forth in the
grievance procedure, the grievance simply moved to the next step of the procedure. The
takes the position that absent a contract requirement to the contrary, the District is not
lay out every piece of evidence relied upon in making a decision in the initial steps of the
procedure but rather is only required to respond in writing to allow the grievance to proceed
next step. The District argues that the testimony of Cantwell, Harris and Kraus and the
provided in support thereof merely expound upon the reasons set forth in Joint
Exhibits 11 and 12
and justify the conclusion that Johnson possessed superior skills, abilities and other
In conclusion, the District takes the position that based on an extensive review of the
information available to the decision-makers, the District reasonably concluded that Grievant
relatively equal to Johnson in skills, ability and other qualifications.
Based upon the foregoing arguments, the District asks that the grievance be denied.
This is a contract interpretation case. The Union alleges that the District violated the
labor agreement when it failed to promote the Grievant to the position of Van Driver even
he was senior to the employee promoted to the position. Both parties agree that the critical
provision is section 10.04(A) cited above. The issue is whether Grievant's skills, abilities
qualifications were relatively equal at the time of the job posting to Johnson, the employee
A relative ability clause is a modified seniority clause; seniority wins only if the
bidding for the position are relatively equal. The Union argues that the employees will be
equal unless the junior in seniority employee is "head and shoulders" 1/ above the
in skill, ability and qualification. The District submits that "In relative ability clauses
determinative if the senior and junior employees' abilities and qualifications are substantially
2/ Whatever standard is used and more could be cited, for the junior employee, in this case
to be awarded the job, the differences between the two employees must be substantial enough
a decision by the District, is not arbitrary or capricious. It is also true that by the parties'
to negotiate a relative ability clause, the District was granted more flexibility to not resort to
as the determining factor. The real question therefore is whether the District arbitrarily
job to Johnson rather than Grievant, the more senior employee.
1/ Hill & Sinicropi,
Management Rights: A Legal Analysis (1986) BNA pp.
2/ Wolf Creek Nuclear
Operating Corp., 111 LA 801, 806 & 807 Erbs (1998).
One of the Union's main arguments, if not the key one, is that
the District was limited in
proving its case to the information given in a letter from Cantwell to the Grievant and Union
spelling out the reasons the Grievant did not receive the Van Driver job. In other words,
information or reasons that Grievant was not selected that are not expressed in that letter
be offered in proof or considered by the Arbitrator. The referenced letter is a response to
Grievant by Cantwell at the second step of the grievance procedure. (Jt. 11) I disagree
Union that the District was limited in its proof to what was contained in this grievance
and in the School Board's response. (Jt. 12)
In a perfect collective bargaining relationship, each party would
reveal or submit all their
evidence during the course of the grievance procedure before reaching arbitration; that rarely
ever happens. There are many reasons for this; the parties hope to resolve the grievance
and as painlessly as possible, the relationship between the parties inhibits
discussions of the grievance and, as often happens, a detailed
analysis of each side's position and
the development of the case does not happen until the experienced litigators for each party
become involved. At that point, the sharing of information, evidence and proof is usually
And it is not unusual for grievance procedures to contain a clause, similar to a clause in the
grievance procedure of this agreement, that provides that if the District does not respond at
during the grievance procedure, the grievance simply moves to the next step and to
Cantwell need not have replied at all. To limit the District, as the Union argues, could result
future cases of the District and the Union making no attempt to submit evidence during
discussions. The use of the word "summary" in Cantwell's letter to Grievant is also an
that he did not intend Joint 11 to cover every reason that Grievant did not receive the Van
position. I also note that Cantwell offered to answer questions from the Grievant and the
Within the determination of arbitrariness, is whether the District
analyzed the skills,
abilities and qualifications of the two applicants in a fair, non-discriminatory and equitable
manner. The determination of whether the two custodians were qualified for the position and
relatively equal was led by Harris, the supervisor of the food service program. Harris'
employment background made her well qualified for the task. Harris had worked for several
large private employers and had supervised significant numbers of employees managing the
service programs of those employers. One of those employers was Abbott Laboratories
Harris managed a food service staff of 40 and an annual budget of $6 million. (D. 7)
other experience in supervising and hiring employees made Harris knowledgeable of a proper
hiring and promotion process. (Tr. 293-294) Joining Harris in the decision making
Kraus, the supervisor of building and grounds, the ultimate supervisor of the two custodian
applicants who had been in his position 19 years and had been involved in the hiring and
promotion of employees. (Tr. 375)
The District, through Harris and Kraus, analyzed the personnel
records of the employees.
They considered their pre-District employment background and conducted personal
using the same set of questions for each employee and taking separate contemporaneous
They developed a Food Service Qualification form for the position and rated Grievant and
Johnson. Harris talked with Shanahan, Principal of the school building in which both
worked. (Jt. 4, 5, 6, 7, 8, 9 & D. 10, 11, 13 & 14) These determination methods
equally to Grievant and Johnson. The methods are typical and management has significant
flexibility in developing its promotion determination process as long as employee applicants
treated fairly. In this case, both employees were treated fairly as to the procedure used by
District to determine whether, under the applicable contract language, they were relatively
It is also significant to note that Harris did not know the two employees before she became
involved in filling the Van Driver position.
I also find that the requirements of the Van Driver position were
reasonable and not in
any way developed so that Grievant would not have an equal opportunity to be considered
the position. (Jt. 3, the job posting) The Union did not argue any
unfairness as to the original
job posting. Further, the contract does not limit District management as to the methods it
use in evaluating employees for promotional opportunities.
I now turn to the specifics of the Grievant's and Johnson's
applications for the Van Driver
position to determine if the District was arbitrary in finding that the two employees were not
relatively equal. Grievant was hired by the District in August of 1995 and assigned to the
Clarendon Avenue School as a custodian and was given a 90 day probationary period.
Johnson was hired by the District in October of 1997 to start as a custodian. Johnson was
transferred to the same school as Grievant in August of 2000 and was informed that he
serve a 60 day probation period. (Jt. 20 & D. 6) Grievant had problems during his
period fulfilling his duties as custodian and received several advisory memorandum regarding
inadequacies in his job performance resulting from meetings with the school principal,
Shanahan, and from Kraus. (D. 2, 3 & 4) These continued problems resulted in
probation period being extended for another 30 days. (D. 5) Kraus testified that he had
before had to extend a probation period and there is nothing in the record to indicate that
Johnson had any problem in completing his probation period. (Tr. 385)
Harris and Kraus also considered the 1997 District biennial
employee evaluation of
Grievant and Johnson (Jt. 15 & D. 6) A fair reading of these two evaluations can only
a conclusion that at that time Johnson was the better employee. His evaluation showed that
met or exceeded all requirements; Grievant met some requirements but failed to meet others.
Kraus wrote a strong condemnation of Grievant's job performance on the evaluation both as
cleanliness of school areas for which Grievant was responsible, as well as a lack of
communication skills and not listening to his supervisors. Kraus indicated on the 1997
that while Grievant's work had been improving of late, the quality for an unknown reason
fallen off. (Jt. 15) With Johnson, Kraus indicated his work areas were exceptionally clean;
also indicated that Johnson needed to work on his communication skills. (D.
Harris and Kraus also considered other documents in Grievant's
personnel record. The
December 18, 1995 memo to Grievant from Kraus was not only a notice of deficiencies in
work but was a warning letter for a violation of District work rules. (D.4) Grievant received
warning letter from his immediate supervisor, Caren Jasinski, on January 16, 2001 for
a walkman while working, in violation of a December 1999 memo from Kraus to all
prohibiting the use of a walkman while working. (Jt. 11) Grievant testified that he needed to
occasionally wear the walkman for medical reasons but had never informed any District
representative of this need and did not provide a physician's excuse until June of 2001. (Jt.
& Jt. 14) On January 3, 1998, Grievant received memorandum regarding inadequate
from his then foreman Gaszak. (Jt. 16) On March 6, 1998, Grievant received a
Kraus following an inspection by Kraus of Grievant's work areas at the request of
Principal Shanahan. (Jt. 17) (Tr. 247-250) The Union
argues that much of this reprimand
detailing areas of cleanliness where Grievant was deficient were not the responsibility of the
Grievant. What the Union at the hearing and in its post hearing brief tried to do is to
this damaging reprimand. But this reprimand was never grieved and the time is past for
determining whether the District had cause for the reprimand. Grievant himself testified that
some of the 37 areas of deficiency detailed in the reprimand were his responsibility.
(Tr. 458) No
evidence was introduced into the record of any disciplinary action or performance
involving Johnson. And Kraus testified that there were none. (Tr. 396 & D.
After the job posting was taken down and Grievant and Johnson
were recognized as the
only two candidates for the Van Driver position, each was asked to prepare a Skills and
Experience Record form provided by the District. (Jt. 6 & 8) For Grievant, the record
Pabst Brewing Co.
General Maintenance and Laborer. Most of Grievant's work was, as
indicated by his job title, involved maintenance and not custodial work, though given the
of the operation, cleanliness had to be maintained when performing his repair or maintenance
work. Grievant also on an irregular basis made special deliveries. Grievant was involved in
activities through his church. (Jt. 6)
Johnson's Record highlighted the following:
Custodian for a Senior Center and
delivered food. School maintenance work. Heating
specialist in Air Force having worked on boilers. Supply clerk and mess cook for Montana
National Guard. (Jt. 8)
These employment records were taken into consideration by
Harris and Kraus.
(Tr. 316-320, 407-410)
Harris and Kraus conducted personal interviews with Grievant
and Johnson. The two
employees were asked the same prepared questions that Harris developed based on the
requirements of the Van Driver position and what she thought would be good indicators of
ability to do the job. (Tr. 321) (Jt. 9) Harris and Kraus took contemporaneous notes
interviews. (D. 10, 11, 13 & 14) The results of these interviews from the testimony of
Kraus supported Johnson for the position. Harris noted that Grievant seemed inflexible and
routine oriented for a job that required the Van Driver to be able to make changes to his
with no input from supervision. Grievant to Harris seemed to lack the
initiative to make a decision unless there was a set District
procedure for him to follow, noting
again that the Van Driver needs to deal with emergencies and situations for which there
not be a procedure. Harris was also concerned whether Grievant could deal with two
she and Kraus. (Tr. 326-328) As for Johnson, Harris testified that she had a positive feeling
about the Johnson interview in that he communicated well, was direct and diplomatic, noting
the Van Driver deals with different people with different demands all day in his job. (Tr.
Harris also felt that Johnson indicated that he liked variety where he could productively use
initiative, which Harris considered a positive aspect for a job where the driver has virtually
immediate supervision. (Tr. 331-332) Kraus's summation of the interviews closely paralleled
views of Harris. (Tr. 404-406) While these views are subjective, for this type of
subjective analysis, supported by other evidence of skills, abilities and qualifications is
in a promotion situation.
Harris and Kraus used the information discussed above to
develop a form entitled Food
Service Qualifications - Van Driver to summarize how they viewed each applicant
information developed from the applicants' employment history, interviews and personnel
records. The qualifications were as follows:
. . .
2. Ability to do sustained lifting
3. Demonstrated ability to work without
4. Demonstrated ability to do minor
maintenance of delivery vehicle
5. Demonstrated ability to plan, schedule
& establish priorities in emergencies
6. Ability to work/relate with staff, students
7. Demonstrated knowledge of materials,
equipment, boiler & methods commonly
8. Demonstrated ability to perform general
cleaning, maintenance work, warehouse
receiving & inventory
9. Ability to plan & schedule cleaning
and maintenance projects
10. Demonstrated ability to use computer
(Jt. 5 & 7)
The rating system used (developed by Harris ) was +1 exceeds
requirements, 0 meets
requirements and 1 improvement needed. Harris and Kraus rated the Grievant at a
Johnson as a 0. In each of the 1 categories for Grievant were listed the reasons, most
were supported by written records from Grievant's personnel file discussed above. Johnson
no 1 for any category. Harris relied on Kraus, who indicated on Joint 5 that while
have improved since his employment, he had not improved enough to classify Grievant as a
performer. " (Jt. 5)
The Union argues that most of the documentation used in Joint 5
was old and that
Grievant should not be judged on memos and warnings that were not current. The Union
argues that Kraus did not directly supervise Grievant and could not know how Grievant was
on a daily basis. Union also points out that Harris and Kraus never interviewed Jasinski,
Grievant's immediate supervisor. And lastly, the Union argues that no current evaluation
done at the time of the job bid in April of 2001. As to a current evaluation, at the time of
bid, Cantwell testified that evaluations are not done at the time of promotion consideration.
I agree that a 1997 evaluation, the last formal one done for the
two employees by the
District, is dated. The District and Kraus explained that the reason a more up-to-date one
not been done is that a remodeling project was going on at the school where Grievant and
Johnson worked and Kraus had not had time to do one. ( Tr. 418 ) I also agree that it might
been beneficial to talk to Jasinski. However, Jasinski, as she testified, knew nothing about
Van Driver position and the custodial work of the two employees which she supervised, is
a small part of the Driver position. (Tr. 60 & 61) Despite the Union's arguments, both
were treated the same. In other words, the same evaluations, backgrounds, interviews,
records, were considered and used for both Grievant and Johnson. If there were failings in
procedure (lack of a current evaluation) the failings were the same for both applicants to the
Harris also interviewed the building principal where Grievant
and Johnson worked and
gave great weight to his opinion. (Tr.348) Principal Shanahan was involved in the
of the Grievant from the start of his employment and in the supervision of Johnson from the
he was transferred to his school. Shanahan testified creditably to the problems he had with
Grievant, much of which was detailed in the documents discussed above. Shanahan further
stated that these writings did not document all the meetings involving the Grievant which
occurred through May of 2001. (Tr. 262) Shanahan stated that while he considered
qualified for the Van Driver position, his opinion expressed to Harris was that Johnson was
better candidate as he needed minimal supervision, was a good communicator and gave
to detail, all of which was lacking in Grievant's performance. (Tr. 263 & 257-260)
testified that Johnson's skills, abilities and qualifications were higher and he so advised
and Cantwell. (Tr. 281 & 282)
Grievant testified that he never grieved the warning letters or
memorandums and never
responded to any of the writings criticizing his work by putting something in his personnel
as the labor agreement allowed him to do, because his first immediate supervisor, Gazak,
discriminated against him because of his religion. (Tr. 124 ) Grievant also testified that he
complained to his Union Local president because that individual was friends with Kraus and
Grievant thought he would only get in further trouble if he complained. (Tr. 115) While this
be what Grievant believed, there is no credible evidence in the record to support this belief.
Grievant acknowledged, the District, by Cantwell, accommodated his
modifying his hours of work. (Tr. 154 & 194) Nothing in the
testimony of Cantwell or Kraus
gave any indication that they would not have considered and done something about any
complaint of religious harassment or discrimination. This excuse of Grievant leaves
unchallenged his personnel record.
The Union introduced over the objection of the District a
biannual evaluation done in
November of 2001, approximately six months after the events leading to the Van Driver job
posting, and consideration of Johnson's and Grievant's application for the job. (U. 1) The
argues that this evaluation covered the period before the awarding of the Van Driver position
represents a truer picture of Grievant's qualifications. I agree, however, with the District
cannot or should not consider information that was not available to the District when it was
making the decision to whom to award the Driver position. To do so would not give either
a finite time line as to what should be considered in making a promotion decision. I again
emphasize that the same evidence of skills, abilities and qualifications was considered for
Grievant and Johnson. Grievant is no more disadvantaged than is Johnson by my not
considering evidence of job qualifications after the May 16, 2001 memo awarding Johnson
job. (Jt. 10 ) Grievant clearly felt he was as qualified as Johnson, and I would not expect
testify or believe otherwise.
I find that the testimony of the witnesses for both parties was
creditable. Judging the
relative abilities of two applicants is not an exact science. The Van Driver position allows
direct supervision, demands initiative in trying to maintain a food delivery schedule while
in other demands on the driver's time and efforts. The position interacts with many different
classifications of school district personnel necessitating good communication skills. The
requires the driver to determine priorities and handle different situations that arise that are
covered by any District policy or procedure. (D. 8 & 9) While cleanliness of the food
kitchen is critical, it is the least time consuming part of the job leading to an appropriate
consideration of the qualifications of Grievant and Johnson other than their skill as a
The procedure used by the District in their decision making
process was the same and fair
for both employees. While some of the records against Grievant were two or three years
is not an unreasonably long time and again there was nothing negative in Johnson's record.
Importantly, the decision making process was led by a skilled supervisor, Harris, who had no
prior knowledge of either employee. And, as importantly, the individual who saw the
and their work on a daily basis, Shanahan, recommended Johnson. Cantwell followed the
recommendation of Harris and did not substitute his own perceptions. There is also little
difference, less than a year, in the seniority of the two employees.
It is not for me to make a determination which employee was
the better for the job under
section 10.04(A) of the labor agreement. My job is limited by the parties' labor agreement
determine whether the District violated the agreement.
I find that the District met its burden based on the entire
relevant and material record that
it did not act arbitrarily or capriciously in violation of Section 10.04(A) of the parties' labor
agreement in awarding the Van Driver position to Johnson.
Based on the record as a whole, I issue the
The District did not violate the collective bargaining agreement
when it failed to promote
the Grievant to the Van Driver position. The Grievance is denied.
Dated at Madison, Wisconsin, this 30th day of January,