The selection and direction of employees is a management right that should be protected like a first-born child. Employers need the ability to appoint the most qualified individual to a position in order to make their businesses run at optimal efficiency – to do otherwise runs contrary to almost any business model.
However, in times of lean money and contentious contract negotiations, it is understandable that an employer could cede some hiring authority in effort to appease a hostile workforce through language concessions on seniority.
One way or another, the Hermantown School District agreed to seniority hiring language in its collective bargaining agreement with its paraprofessional group. Specifically, the contract states, “the District will automatically, without interview, move the most qualified senior candidate into the vacancy…” and “If all employees applying for the job are qualified for the work, the most senior employee will be promoted.” This was the language relied upon in Education Minnesota – Hermantown, Paraprofessional and School Related Personnel Unit and ISD No. 700, Hermantown when a less-senior employee was promoted to a position for which the more-senior grievant applied.
One would think with language as strong as this, the decision would be simple, but the District had its own contract language. In the same section, the contract states, “Final selection of employees for open positions will be made by the administration,” and, “Recommendations will be made by the Administrator, based on seniority, ability, competence, and will be at the discretion of the Board.”
The district also had state law on its side. PELRA grants public employers sole authority over the “selection of personnel and direction and the number of personnel,” and employers can only relinquish that right through clear and unmistakable language.
Arbitrator Abelson’s task was to wade through the seemingly contradictory contract language and determine how the case should be decided without rendering any of it meaningless. In analyzing the contract language, the arbitrator found that while the seniority language pointed to the “most senior” employee, there were two different forms of seniority that could be applied to the language, and the contract did not specify which seniority language applied.
In the end, the arbitrator came to the reasonable conclusion that it was ultimately the decision of the employer to determine the qualifications for a position as well as the skills and knowledge required for the job, which included skills that could be identified through the interview process. As such, it was not possible for the employer to appoint an employee without going through the interview process, and an employee could be determined to be qualified only after passing the interview process. The District retained its statutory and contractual right to select and hire personnel, and had not relinquished that right through the negotiation process.
Although the employer ultimately prevailed, there are lessons to be learned from this decision. First, don’t give up your right to select the most qualified candidate for any position! Second, if you have no choice (and this is a last resort), and you must concede some seniority language in your contract, narrowly and precisely tailor your contract language so that it is accomplishes the exact goals you seek to achieve. Ambiguous language is normally held against the drafter of the language, and the last thing you want is language so difficult to comprehend that it takes an arbitrator to figure our what you were trying to say. If you have language like that in this case, take the opportunity during negotiations to clean up the language as much as possible to make it work.
If you need any help in applying or correcting ambiguous contract language, feel free to contact the Wiley Law Office for negotiation experience that works.