ARBITRATION
DECISION NO.:
457
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Administrative Services
DATE OF
ARBITRATION:
May 20, 1992
DATE OF
DECISION:
July 6, 1992
GRIEVANT:
Kathleen Stewart
OCB
GRIEVANCE NO.:
02-04-(88-08-05)-0039-01-14
ARBITRATOR:
Anna DuVal Smith
FOR THE
UNION:
John Fisher, Advocate
Jim Pagani, Second Chair
FOR THE
EMPLOYER:
Shirley Turrell, Advocate
Rachel Livengood, Second Chair
KEY WORDS:
Promotion
Minimum Qualification on
Classification
Specification
Minimum Qualifications on
Position
Description
ARTICLES:
Article 17 - Promotions
and Transfers
§17.03-Posting
§17.04-Bidding
§17.05-Selection
Article 25 - Grievance
Procedure
§25.01-Process
§25.08-Relevant
Witnesses and Information
FACTS:
The two grievants applied for
promotions to Systems Analyst 1 in the Computer Services Division at the Ohio
Department of Administrative Services.
Both employees were classified as group "A" employees in
accordance with Article 17.04 of the Contract.
While the parties stipulated that Grievant 1 met the minimum
qualifications for the classification, they were in disagreement about the
qualifications of Grievant 2. Two
others employees, one from group "A" and one from group
"E", also applied; both had less state seniority than the two
grievants. The State considered the
applicants as a group, regardless of whether they fell in group "A",
“B”, "C", "D" or "E", and subsequently hired the
two employees with the least state seniority.
UNION'S
POSITION:
The State improperly denied the
grievants' promotions to the Systems Analyst positions. The Union contended that Article 17.05 and
the Savage decision required the State to separately consider the
applicants from each group in descending order from group "A” to group
"E". Therefore, the Union
concluded that because both of the grievants met the minimum qualifications for
the position, the group "E" employee should not have been even
considered. The Union argued that the
State used impermissible criteria to evaluate the applicants. Article 17.05 and the Castle-Thomas
decision required the State to award the position to the qualified employee
with the most state seniority unless the State demonstrated that the less
senior employee was demonstrably superior.
The State failed to show that the employees selected were demonstrably
superior to the grievants.
The State also violated the
Contract by using preferred characteristics to qualify candidates. Grievant 2 met the qualification set forth
in the Position Description (PD). The
PD did not specify a college education as a prerequisite for the position. Moreover, the method used to evaluate the
candidates was faulty and subjective; interviewers were given the discretion to
determine the scoring/weight of different components of the evaluation process
which encouraged abuse and favoritism.
Finally, the Union claimed that it did not violate the Contract by
omitting the names of the individual grievants from the grievance. Article 25.01(B) permitted the Union to file
the grievance
on behalf of the affected employees.
Further, the grievance adequately described the group, and the grievants
were identified in the Step 3 response.
Because the State was not prejudiced by lack of knowledge or surprise,
the grievance was not defective, and the available remedy was not subject to
limitation.
EMPLOYER'S
POSITION:
The State was within its authority
to promote junior employees over more senior ones. The Union bore the burden of showing that Grievant 2 qualified
for the position, and the Union failed to do so. The State argued that it did follow the requirements of Article
17.05; the State disqualified the " A " group candidates before
considering the others. Further, the
State argued that it had a long standing practice of taking the best qualified
employees. The State insisted that it
was not required to promote marginally qualified senior candidates. The State maintained that Castle-Thomas
permitted it to consider preferred qualifications; therefore, the State did not
have to rely exclusively upon minimum qualifications.
The Union failed to prove a
violation of 25.08; The State did not have to furnish the Union with
proficiency test questions and answers.
The State argued that it had the exclusive authority to assess
qualifications and develop tests to evaluate candidates and that the methods
utilized were objective and fair.
Further, the Union failed to state the names of the individual grievants
in violation of Article 25.01; therefore, any remedy granted should be
prospective application i.e. no remedy should be granted to the group of
grievants in this case, but the arbitrator's decision would be binding on
future promotions.
ARBITRATOR’S
OPINION:
The Arbitrator agreed with the
Union that Article 17.05 and the Savage decision required the State to
consider applicant groups in sequential order and reach a conclusion about the
qualifications of the employees in one group before proceeding to the
next. Article 17 prevented the State
from comparing employees from different groups and prohibited co-mingling
between groups. Likewise, the State
could not interview group "B" bidders until it made a decision upon
group "A" bidders.
Citing Castle-Thomas, the
Arbitrator held that the State could select a qualified, junior group
"A" bidder if either of the senior group "A” bidders was
unqualified or if the State proved that the junior group "A" bidder
was demonstrably superior to either of the senior group "A" bidders. In order to properly select a group "E”
bidder, the State had to prove that the two senior group "A" bidders
were unqualified, not that the group "E" bidder was demonstrably
superior. In evaluating a bidder's
qualifications, the Arbitrator held that the State may not look beyond the
attributes requested on the Position Description and
AWARD:
The grievance is
denied in its entirety.
TEXT OF
THE OPINION:
In the
Matter of Arbitration
Between
OHIO CIVIL SERVICE EMPLOYEES
ASSOCIATION, LOCAL 11,
A.F.S.C.M.E., AFL-CIO
and
STATE OF OHIO
DEPARTMENT OF ADMINISTRATIVE
SERVICES
OPINION and AWARD
Arbitrator:
Anna DuVal
Smith
Case:
02-04-(08-05-88)-0039-01-14
O.C.S.E.A., Grievant
(by
Kathleen Stewart, Steward)
Promotion
Appearances
For OCSEA Local 11, AFSCME:
John
Fisher; Staff Representative,
OCSEA
Local 11, AFSCME; Advocate
Jim
Pagani; Staff Representative,
OCSEA
Local 11, AFSCME; Second Chair
Valerie
Tipton; Grievant
Anna
DeJesus Jacobs; Grievant
Kathy
Stewart; Chapter President and
Steward;
OCSEA Local 11, AFSCME; Witness
Tony
DeGirolamo; Arbitration Clerk,
OCSEA
Local 11, AFSCME; Observer
For the State of Ohio:
Shirley
Turrell;
Labor
Relations Officer, Ohio Department
of
Administrative Services; Advocate
Rachel
Livengood;
Asst.
Chief of Arbitration Services, Ohio Office
of
Collective Bargaining; Second Chair
Donald P.
Bishop; Administrator,
Ohio Data
Network; Witness
Carolyn
Chavanne; MIS Application
Manager;
Witness
Meril
Price;
Executive
Assistant to Deputy Director,
Ohio
Office of Collective Bargaining; Witness
Hearing
Pursuant to the
procedures of the parties a hearing was held at 9:15 a.m. on May 20, 1992, at
the offices of the Ohio Office of Collective Bargaining, Columbus, Ohio, before
Anna DuVal Smith, Arbitrator. The
parties were given a full opportunity to present written evidence and
documentation, to examine and cross-examine witnesses, who were sworn and
excluded, and to argue their respective positions. The oral hearing concluded at 4:00 p.m., May 20, 1992. The record remained open to receive Employer
Exhibit 2 (transcript of Castle-Thomas arbitration, parties' case number
G870411) and written closing statements.
These documents being timely received, the record was closed on June 5,
1992. This opinion and award is based
solely on the record as described herein.
Issue
The parties
stipulated that the issues to be decided by the Arbitrator are:
1. Is the grievance properly before the
arbitrator?
2. If so, did the employer violate Contract
Article 17 in the promotion of junior employees Colleen Hinds and Juanita Noe
to the position of Systems Analyst 1.
3. If so, what shall the remedy be?
Joint
Exhibits and Stipulations
Joint Exhibits
1. 1986-89 Collective Bargaining Agreement
2. Position Posting - Systems Analyst 1
PCNS: 41208.0/41212.0
3. Series Specification - Systems Analyst 1,
64121
4. Interview Schedule and Applications of:
J. Parham
A. DeJesus
V. Tipton
J. Noe
C. Hinds
J.
Flemmings
N. Edwards
G. Marshall
5. Seniority Dates of Interviewed Applicants
6. Summary of Scoring of Elements of Structured
Interview, Written Test, Interview Questions and Answers
7. Interview Sheets (Strengths and Weaknesses
Ratings)
8. Grievance Trail: Step 3 & 4 Responses, Arbitration Request
Stipulation of Fact
Anna DeJesus
(Jacobs) met minimum qualifications in 1988, for the classification of Systems
Analyst 1.
Relevant
Contract Provisions
Article 17 -
Promotions and Transfers
§17.03 -
Posting
All vacancies
within the bargaining units that the Agency intends to fill shall be posted in
a conspicuous manner throughout the region, district or state as defined in
Appendix J. Vacancy notices will list
the deadline for application, pay range, class title and shift where
applicable, the knowledge, abilities, skills and duties as specified by the
positions description. Vacancy notices
shall be posted for at least ten (10) days....
§17.04 -
Bidding
Employees may
file timely applications for promotions.
Upon receipt of
all bids the Agency shall divide them as follows:
A. All employees within the office,
"institution" or county where the vacancy is located, who presently
hold a position in the same, similar or related class series (see Appendix I).
B. All employees within the geographic district
of the Agency (see Appendix J) where the vacancy is located, who presently hold
a position in the same, similar or related class series (see Appendix I).
C. All other employees of the Agency in the
same, similar or related class series.
D. All other employees of the Agency.
E. All other employees of the State.
§17.05 -
Selection
A. The Agency shall first review the bids of
the applicants from within the office, county or "institution." Interviews may be scheduled at the
discretion of the Agency. The job shall
be awarded to the qualified employee with the most state seniority unless the
Agency can show that a junior employee is demonstrably superior to the senior
employee.
B. If no selection is made in accordance with
the above, then the same process shall be followed for those employees
identified under 17.04 (B).
C. If no selection is made in accordance with
the above, then the agency will first consider those employees filing bids
under 17.04 (C) and then 17.04 (D), and then 17.04 (E). Employees bidding under 17.04 (C), (D), or
(E) shall have no right to grieve non-selection.
Background
In 1988 the Ohio
Department of Administrative Services posted two Systems Analyst 1 positions in
the Computer Services Division.
Employer witnesses testified to the inadequacy of the Systems Analyst 1
classification for the vacancy they were attempting to fill, but stated that it
was the best available at the time.
(Subsequent to the posting and filling of these vacancies, class
modernization affected the subject classification and created a new class,
Computer Acquisition Analyst.)
A number of
individuals applied for the vacancies, among them Anna DeJesus (now Jacobs) and
Valerie Tipton, both of whom were Level A employees by the hierarchy
established in §17.04 of the Collective Bargaining Agreement. The parties stipulated that Ms. DeJesus met
the minimum qualifications for the Systems Analyst 1 classification. Ms. Tipton's qualifications at the time the
vacancies were posted are at issue.
Among other applicants were Colleen Hinds (Level A) and Juanita Noe (Level
E) Each of the latter two carried less
state seniority than either DeJesus or Tipton.
A total of eight applicants, including these four, were scheduled for
interviews on June 28, 1988, and their qualifications evaluated, with the
result that Noe and Hinds were hired over the more senior DeJesus and Tipton.
A grievance on
the matter was filed at Step 3 by Steward Kathleen Stewart on August 5, 1988,
protesting alleged violations of the Contract's Preamble, 17.05, 19.12 and
"any and all other applicable sections of cont. and/or O. R. C." The Union was named as grievant. Ms. Stewart testified, and the Step 3
response shows, that Management was aware of the identity of the most senior
applicants for whom relief was sought.
The record also shows that at least one of these individuals did not
know of the grievance filed in her behalf until 1992. Being denied at Steps 3 and 4, the grievance came to arbitration
where it presently resides for final and binding resolution.
Arguments
of the Parties
Arguments on Arbitrability
Neither party
claimed the Arbitrator is prohibited from deciding the merits of the case. Rather, the Employer contends that the
absence of specifically named individual grievants constrains the Arbitrator to
a declaratory remedy of instructive guidance for the future. The parties' arguments on this issue are set
forth in the section on remedy below.
Arguments on the Merits
The Union
is of the view that the Employer improperly denied Ms. DeJesus and Ms. Tipton
promotions to Systems Analyst 1 positions because it violated Article 17 in
three ways.
One feature of
§17.05 which the Union says supports its view is that it requires sequential
consideration of the five applicant groups defined in §17.04. As read by Arbitrator Graham in Savage
(Case No. G87-1214), the Employer must find Level A applicants unqualified
before considering Level B employees, and "B" bidders unqualified
before considering “C" applicants, and so on. In the case at bar, the Employer co-mingled applicants from
Levels A and E in the interview process (interviewing all on June 28) and in
evaluation (considering all simultaneously on July 2) In the view of the Union, the Employer was not free to review Ms.
Noe’s application from Level E until all Level A applicants had been found
wanting. By this reasoning, the Union
concludes that if Ms. DeJesus and Ms. Noe were qualified (which it says they
were), the Level E employee awarded the position should not have been even
considered.
Another Employer
error alleged by the Union is the use of impermissible criteria to evaluate the
applicants. Section 17.05 states that
the "job shall be awarded to the qualified employee with the most state seniority
unless the Agency can show that a junior employee is demonstrably superior to
the senior employee." Testimony by
the negotiators of this language in the Castle-Thomas (Case No.
G87-0411) arbitration and Arbitrator Graham's holdings in that
case, in Savage and in Zimmerman (Case No.
24-09-(06-26-90)0402-01-04) establish that the Agency may not hold bidders to
requirements beyond minimum acceptable characteristics specified on the
Position Description and Class Specification.
Here, Agency witnesses admitted that preferred worker characteristics
listed on the job posting were used to assess the applicants, but nothing
indicates that the parties contemplated use of preferred worker characteristics
to qualify bidders for a position or to determine demonstrable superiority of
junior bidders. The Union says that
reasons offered by the Employer for failing to apply minimum qualifications do
not justify the contractual violation.
The impact of technological change on the job's requirements are
appropriately addressed in a revised Position Description before the job is
posted, not after applications are received.
The revised Position Descriptions submitted as Employer Exhibit 5 over
the Union's objection are evidence of the Employer's ability to revise minimum
qualifications for a position. The
impracticality of training the selected employees is but an Employer device,
contends the Union, to obscure the true reason the Employer used selected
preferred worker characteristics: to
obtain the best qualified applicant in contravention of the Contract's mandate
that the standard be "qualified."
The Union goes on
to contend that by application of the appropriate criteria, Ms. Tipton (like
Ms. DeJesus), was qualified for the position she was denied. It asserts that her resume and application
show possession of minimum qualifications set forth on <PAGE NAME="8">the Position
Description. It argues that the courses
she completed qualify inasmuch as the Position Description did not specify
college courses, semester hours or quarter hours. If the Employer wanted college course work, it ought to have
specified that when posting the positions, not after applications were
submitted.
The Union's third
and final argument on the merits is that the Employer has failed to carry its
burden of showing that the junior Level A applicant awarded the position was
"demonstrably superior" to the senior bidders, referencing the Castle-Thomas
transcript and several Graham decisions.
It claims that the method used by the Employer's interviewer to evaluate
the applicants' qualifications was flawed and subject to manipulation inasmuch
as it gave the greater weight to subjective interviews and tests. Scoring and weighting were under the total
control of the interviewer, making the system amenable to abuse. Moreover, the interviewer was unable to
relate her evaluation to the "demonstrably superior" standard.
The Union
summarizes that the Employer violated the 1986 Contract in three ways when it
failed to promote Ms. Tipton and Ms. DeJesus, and asks that it be granted the
remedy requested.
The Employer
is of the view that it acted within its authority when it promoted junior
employees over senior employees to the position of Systems Analyst 1.
Its first
argument in support of this position is that the Union failed to carry its
burden of proof by a preponderance of the evidence. The Union failed to show that the "grievants" were
qualified. Management, in fact,
established that most of Ms. Tipton's credentials were inadequate to meet
minimum qualifications. The Union's
failure to call Ms. DeJesus shows an unwillingness to subject her to
cross-examination on her qualifications.
It also claims
the Union failed to show any violation of Article 17. Article 17.05 clearly and unambiguously established that
Management has discretion in sequencing of interviews and no evidence was
produced that it considered job candidates in improper sequence. Indeed, the Employer goes on, it properly
applied Article 17 as it disqualified "A” candidates before reaching
"E” candidates. Moreover, Ms. Noe could be considered a
group B candidate.
Management also
says the Union failed to offer testimony on the State's method of determining
qualification of a position or evidence on the parties' Article 17 intent. The Employer has a long-standing practice of
selecting the best qualified candidate and it is not required to select senior
marginally qualified bidders. Its
expert witness testified that it was Management's practice to rely on Preferred
Qualifications in postings. The Castle-Thomas
case settled that §17.05 does not require exclusive reliance on minimum
qualifications, but that the Employer may use desired or preferred
qualifications specific to the duties of the position. The Union's use of Savage is
erroneous, claims Management.
A further failure
of the Union to carry its burden, says Management, is its failure to prove a
violation of Article 25.08. It is
unreasonable to expect the Employer to furnish the Union with proficiency test
questions and answers, but the State supplied what it had in this four-year-old
case.
A second approach
taken by the Employer is that it is vested with exclusive authority to assess
qualifications and to develop tests to determine qualifications. In support, it references a number of
arbitration decisions outside this collective bargaining relationship. It further draws the Arbitrator's attention
to a number of principles it asserts are well established by arbitral authority
elsewhere: a junior bidder may be
selected over a senior who requires extensive training, an outside candidate
may be chosen who can perform complex duties without training, and relative
qualifications may be subject to more finite scrutiny as technological
complexity increases. Applying these
principles to the case at bar, the selection of Hinds and Noe rather than
DeJesus is justified because DeJesus lacked the ability to perform the job
without training and she was deficient on a number of qualities where Noe and
Hinds had experience and/or education.
Another principle established by cases referenced by the Employer is
that management may select junior candidates as long as the process is not
arbitrary or capricious. The State
claims it used an objective, relevant instrument and the applicants had advance
notice of the job's requirements and duties.
It asserts the junior unsuccessful applicants did not themselves grieve
their non-selection because they recognized their limitations.
The third
argument of the State is that the classification system in use in 1988 was
inadequate for selecting systems analysts.
If the Arbitrator may not consider the evolution of class specifications
since the selection (as the Union argues), then she should also not consider
the evolution of Article 17’s interpretation through arbitration cases decided
after the selection decision. The State
goes on to distinguish the Savage and Zimmerman cases cited by
the Union. In Savage, the
"demonstrably superior" exception of Article 17 was held to apply to
junior but not senior employees. In Zimmerman,
use of preferred qualifications was prohibited unless linked to the Position
Description. Here, the demonstrably
superior employees are junior and the preferred qualifications are linked to
the Position Description, says the Employer.
For these
reasons, the State requests that the grievance be denied in its entirety.
Arguments on the Remedy
The Union
states first that the Employer's claim that unnamed grievants constitutes a
flaw is without merit. Article 25.01
(A) of the Contract defines a grievance as a dispute "between the Employer
and the Union or any employee....”
Article 25.01(B) permits the Union to process grievances for a grievant,
"a group of grievants or itself setting forth the name(s) or group(s) of
the grievant(s)." The grievance
describes the affected group and they were specifically identified in the
Employer's Step 3 response. Moreover,
the Grievants' absences from grievance meetings is no <PAGE NAME="12">bar, since the
Contract is permissive on this matter.
The Union further asserts that notification of grievants and inclusion
of names on the grievance is purely an internal Union matter. It is well settled, it contends, that a
Union may pursue a policy grievance such as this on its own volition and
further that employees cannot waive contractual rights, citing Elkouri &
Elkouri, 1985. Thus, the Union has not
violated the Contract and the Employer has not been prejudiced by lack of
knowledge of who the grievants were.
Therefore, there is no contract violation rendering the grievance
non-arbitrable or limiting the arbitrator' s remedial power, says the Union, referencing
Arbitrator Bittell in the parties' case G87-1287.
The Union next
asserts that an arbitrator has broad remedial powers under a collective
bargaining agreement unless her authority is expressly limited, citing two
Sixth Circuit decisions and the recent Queen City Lodge No. 69, F.O.P. v.
City of Cincinnati, 63 Ohio St. 3d 403 (1992). The Contract's sole constraint on arbitral remedial power is in
Section 24.01, demonstrating that the parties knew how to constrain arbitral
authority and chose not to do so except in abuse cases. Thus, concludes the Union, this arbitrator
has the authority to determine the appropriate remedy for the Employer's
violations.
For Ms. DeJesus,
who met the minimum qualifications and who has since been promoted, the Union
seeks lost wages to the time of her promotion since this was the only harm
caused her by the Employer's violations.
Regarding Ms.
Tipton, the Union claims the arbitrator is unable to determine the alleged
demonstrable superiority of the junior candidate awarded the position because
of the Employer's flawed evaluation methodology. It asserts that remanding to the Employer is inappropriate since
the evaluation process--flawed though it be--was completed. It therefore requests that the senior minimally-qualified
Ms. Tipton be awarded the position she was denied so that she can demonstrate
her ability to perform the duties in a probationary period, and that she be
awarded back pay.
In conclusion,
the Union requests a clear statement regarding the meaning and operation of
Article 17 to prevent continued arbitration of matters already decided.
The Employer
argues that the Union's failure to name specific aggrieved employees on the
grievance and/or the employees' failure to file their own individual grievances
in a timely fashion acts as a significant constraint on the Arbitrator's
remedial power. It contends that an
employer's obligation to pay affected employees for lost wages expires when
each fails to grieve timely or be expressly named by the union, and points out
that the "grievant" who testified admitted she had no knowledge of
the matter until January, 1992, four years after the fact. In support of its position, it cites the
Civil Procedure Rule on class action and Compco Corp., 85 LA 725. It further claims that the Union's
explanation of its failure to inform the affected employees cannot be weighed
since no evidence of retaliation or need for protection from retaliation was
presented. It further questions the
wisdom of the Union assuming responsibility for policing
all management actions.
Finally, the
State claims that the Union filing on behalf of "the most senior
employees" creates the risk of erroneous remedy should there be
disagreement on seniority dates, and further that an award of back pay is
inequitable, citing Carnation Co., 84 LA 863. It therefore asserts that in the event the Arbitrator finds for
the Union, remedy should be limited to instructive guidance for the future.
Opinion of
the Arbitrator
Arbitrability
Inasmuch as there
is no remaining employer claim that the substantive issue is outside the scope
of arbitral authority, the grievance is held to be properly before the
Arbitrator for final and binding resolution.
Merits
The parties agree
that many issues about the interpretation and application of Article 17 have
been settled in arbitration, but they disagree as to what the holdings were and
to their application to the facts of this case. This arbitrator has carefully read the decisions of Arbitrator
Graham cited by the parties and the transcript of the Castle-Thomas
case, and reached certain conclusions regarding points applicable to the case
before her.
Evaluation
Process. In Savage,
Arbitrator Graham upheld the Union's view that §17.05 requires the Employer to
apply the hierarchy of §17.04 sequentially in considering bids for vacant positions
(p. 13). Thus, only if all bidders from
§17.04(A) are unqualified is the Employer free to consider the qualifications
of §17.04(B) applicants. I agree this
is true because §17.05(A) says the "job shall be awarded to the
qualified [office, county or "institution"] employee....” (emphasis
added) and §17.05(B) says "If no selection is made in accordance
with the above, then" §17.04(B) applicants shall be considered (emphasis
added). This language is not
permissive. It directs the Employer to
consider applicant groups in a given order and reach conclusions regarding
qualifications of the members of one group before proceeding to the next
group. I therefore concur with
Arbitrator Graham's holding that the "Agreement provides that before
persons in [lower subsections] may be considered all bidders in [higher]
classifications...must have their qualifications evaluated. Only if bidders in [the higher]
classifications are found wanting may the State reach people in [the lower]
subsection" (Savage at 13).
In the instant
case applicants from a two subsections, A and E, were co-mingled in the
interview process and the qualifications of none considered until data from all
were collected. The Union's position
regarding the evaluation process is correct.
The language of Section 17.05 describes an iterative process that is
consistent with the intent expressed by the negotiators in the Castle-Thomas
hearing, namely to prevent prepositioning and secure seniority rights (Union
interests, Castle-Thomas Tr. 64) and to avoid statewide seniority
bidding units (State interests, Castle-Thomas Tr. 73 and 95). Thus, Article 17 permits comparisons of
employees only within hierarchical groups and prevents
comparisons between groups. To
accomplish this, the evaluation process prescribed by the Article prohibits
co-mingling. The Employer must complete
§17. 05 (A) before beginning §17. 05 (B) , and complete §17. 05 (B) before
beginning §17.05(C). While Article 17
permits Agency discretion in scheduling interviews, as the State argues here,
this discretion may be exercised within each subsection's group of
bidders. The State may not interview
§17. 04 (B) candidates until it has made its decision on §17.04(A)
candidates. Applying this rule to the
case at hand, the State should not have interviewed Ms. Noe (a Level E
candidate) until it had fully evaluated all the Level A candidates and found
only one or none to be qualified.
Whether Ms. Tipton and/or Ms. DeJesus were harmed by the Employer in
this regard depends on whether they were qualified, which issue is taken up
below.
Degree of
Qualification. When considering
applicants from a given subsection, the job must be awarded to the senior
qualified bidder unless a junior
bidder is "demonstrably superior."
The State contends that it may select the best qualified candidate and
has no obligation to select marginally qualified bidders. This view is not precisely correct, nor is
it entirely wrong. As Castle-Thomas
makes clear on page 23, senior applicants have substantial promotion rights
under §17.05. They do not have to be
the best qualified to be selected, or even equally qualified. They must merely be qualified. Thus, if there are one or more qualified
bidders within the subsection pool under consideration, the Employer
has the obligation to select the most senior (even if s/he is not the best
qualified), but with one exception. If
the Employer can show that a junior bidder from the subsection is better
qualified by a substantial difference than the more senior, the junior may be
selected (Castle-Thomas at 23-24).
Moreover, if there is a qualified candidate from a higher subsection
(e.g. Level A), the Employer may not evaluate lower-subsection applicants (e.g.
Level E) in a search to find a better qualified bidder, as the above paragraphs
make clear.
In the context of
this case, the State may select the junior Level A applicant it deems best
qualified (Ms. Hinds) if either of the
senior Level A bidders (Ms. Tipton and Ms. DeJesus) are unqualified or if it
can show the junior to be "demonstrably superior" to either of the
seniors. To select the Level E
applicant (Ms. Noe), it does not have to show "demonstrable
superiority" if the Level A bidders are unqualified, but it may not
select her (even if she is "best qualified") if any two Level A
applicants are qualified. Again, the
outcome of this case turns on the question of the seniors’ qualifications, a
subject to which I now turn.
Qualifications. The Union argues that the Employer may hold
bidders only to minimum acceptable characteristics specified on the Position
Description and Classification Specification, and by these criteria the senior
bidders are qualified. The State holds
to the view that it may rely on preferred or desired qualifications specific to
the duties of the position. By these
criteria, the senior applicants are unqualified. Two cases recently decided by Arbitrator
Graham are instructive. In Zimmerman,
a case arising under the 1989 Contract, he held that the State may not hold
bidders to qualifications it desires, only to qualifications that are required
(p. 7). In Savage, a case
arising under the 1986 Agreement, he held that the State may not go beyond the
minimum acceptable characteristics "as specified by the State itself on
its own Position Description and Classification Specification" (p.
16). I draw the same conclusions from
my own reading of Article 17 of the 1986 Agreement as illuminated by the
negotiators' testimony in the Castle-Thomas case. At the time the 1986 Contract was under
negotiation, the State had a problem relying on the more generic Classification
Specification for a statement of qualifications, and the Union became persuaded
that the Position Description, where qualifications relevant to a particular
position within a classification could be spelled out, should be the
determinative document (Tr. 62). Thus,
the State obtained the ability to specify job-relevant requirements for the
position (Tr. 68 & 70) (subject to Union protest), and the Union obtained
for the employees advance knowledge of qualifications and control of favoritism
in promotions (Tr. 68). That Position
Descriptions are reviewed by the Department of Administrative services would
prevent the job from being wired to a favored individual. An inescapable conclusion is that the
operative document is the Position Description. A bidder's ability to perform the work of the position must be
evaluated by measuring the bidder's attributes against the qualifications
provided in the Position Description (Tr. 68, 97, 116-117). The State may not go beyond what it sets
forth on the specific Position Description and generic Classification
Specification as requirements for the position. A person who possesses these attributes, thus meeting the
requirements, must be deemed qualified.
Applicants may not be held to other than required attributes, even if
they are desired or preferred by the Employer.
Applying these
principles to the case at hand, the Department was not constrained to the
minimum qualifications of the Systems Analyst 1 classification when it sought
to fill its positions in 1988. It was
free to go beyond the Classification Specification and develop the Position
Description to meet its needs.[1] Ms. Tipton's, Ms. DeJesus' and the other
applicants' qualifications should then have been judged only against the
requirements specified on the Position Description and Classification
Specification. They should not have
been required to have the desired background of two years experience in
computer equipment acquisition, etc., stated on the posting.
For the
Acquisition Analyst positions posted, the State is held to the Systems Analyst
1 Classification Specification and the Acquisition Analyst Position
Description. According to testimony of
the State's expert witness, Meril Price, two positions of the same
classification may involve different duties and thus have different job-related
requirements. A major distinguishing
feature of these positions, as testified by Donald Bishop and supported by the
duties set forth on the Position Description, was the knowledge of a variety of
systems and vendors (both hardware and software) in order to deal with a
variety of users. Another was the
ability to write specifications sufficiently narrow to achieve a good solution
to the user's business problem, but sufficiently broad to permit competitive
bidding. Ms. Tipton does not possess
these attributes. The credentials she
offers (Union Ex. 1) to show she meets the Minimum Class Requirements are of
State in-service and vendor training (each mostly one day in length), rather
than undergraduate courses taken at an accredited educational institution,
which was the standard used for "course" on classification
specifications, according to Ms. Price.
Additionally, at least some of the experience offered is not in the
areas required: billing is not budgeting
and data analysis is not statistical analysis, for example. Her experience was largely on word
processing systems. The evidence she
submitted of her systems analysis and writing skills and abilities were
co-authored, and her role in projects she worked on was vague and
unspecified. This record does not
support the conclusion that Ms. Tipton was qualified for the position she
sought in 1988, possessing neither the Minimum Class Requirements nor the
Minimum Acceptable Characteristics for performing the job duties of Acquisition
Analyst: she lacked the courses and/or experience
that would provide her with a broad knowledge of computer systems and skill in
systems analysis and design.
As for Ms.
DeJesus, the parties stipulated she possessed the Minimum Qualifications for
the Systems Analyst 1 classification.
But this does not necessarily qualify her for the Acquisition Analyst
position. She must also possess the
Minimum Acceptable Characteristics on the Position Description. Whether she had the requisite knowledge,
skills and abilities for this position is difficult to determine, since she did
not testify, nor was documentation submitted other than her application and the
interviewer's strengths/weaknesses analysis and summary scores on the various
instruments. The application reveals
experience in programming and computer operations, and courses in programming,
computer operations and systems analysis.
The interviewer felt that she lacked a broad base of technical
knowledge, noting specifically hardware and systems analysis. She also lacked the preferred two years
experience in computer equipment acquisition.
The latter criterion is not permitted, for although it may be a
desirable attribute, it is not a requirement of the position. Knowledge of computer functions and
operations, however, is one of the Minimum Acceptable Characteristics for the
position, and the Arbitrator is persuaded that broad knowledge is required to
perform the duties described on the Position Description. Moreover, it is the Union's burden to
establish by a preponderance of the evidence that Ms. DeJesus possessed the
requisite knowledge. While it was
established that she met the minimum qualifications for the classification,
it was not shown that she either studied or had experience with a broad
spectrum of hardware such as would constitute sufficient knowledge to perform
the duties of the position. While the
Union is correct that it is the Employer's burden to show demonstrable
superiority of a junior applicant, it is the Union's burden to show the senior
bidders were qualified. This it did not
do.
In sum, although
the Employer erred both in its evaluation sequencing and choice of criteria for
selection, neither of the senior bidders who were joined to this grievance was
shown to be qualified for the position and so neither was harmed by the
Employer's actions.
Award
The grievance is
denied in its entirety.
Anna DuVal Smith, Ph.D.
Arbitrator
July 6, 1992
Shaker Heights, Ohio