If you work with unions long enough, you will eventually be faced with a proposal from your employees’ collective bargaining representatives to have some say in the hiring and promotion process for employees. Hopefully, when you receive this offer of “assistance” from the union you tell them that any offers of assistance are unnecessary, and you’re more than capable of hiring competent employees without their interference. Occasionally, however, employers will make language concessions during the give and take of negotiations. These language concessions are usually in the form of some seniority hiring language.
Carlton County agreed to very modest seniority hiring language with its clerical group, AFSCME Council 65. In the relevant portion of the contract, it stated, “Applicants shall be evaluated based on a 100 point scale with the position being awarded to the individual obtaining the most total points….If all other qualifications are equal, the most senior applicant shall receive a promotion.”
In hiring for a half-time Case Aide position, the county received letters of interest from three internal candidates, and those candidates were moved onto the “structured interview” portion of the hiring process, where the candidates were rated on the 100-point scale by four different interview panelists. In the end, the employee with the least experience was rated the highest by the panel, based on interview score, and was offered the position. Needless to say, the more-senior grievant was not thrilled with the results. This was the basis for AFSCME’s appeal to arbitration.
In its grievance, the union asserted the county violated the collective bargaining agreement by not hiring the “most experienced, qualified and senior applicant to fill the position. The union also argued that the language of the contract meant that if qualifications were “relatively equal to or greater than another applicant, seniority requires the County to give the promotional opportunity to the senior applicant.” Finally, the union argued that the language of the agreement required the County to created an interview process that would assure the most qualified candidate is selected.
Despite the union’s various efforts to read language into the contract, the arbitrator found no obligation for the County’s applicant evaluation process other than that the County establish a 100 point scale for interviewees to be evaluated. The arbitrator found that the County had “complete discretion regarding implementation of the structured interviews,” and that the language of the contract limited the arbitrator to an evaluation of whether the interview process was fair and reasonable. One could argue that even in conducting that evaluation, the arbitrator went beyond the scope of what was required under the collective bargaining agreement.
Attacks on the employer’s right to create and execute a hiring process that finds the most qualified applicant based on the qualifications sought by the employer, and not the union, have persisted throughout the history of collective bargaining. Ultimately, it should be the employer that decides who it wants to fill a position based on the qualities the employer deems to be the most desirable. Candidates with the most seniority may have the most experience working in a job, but just because an employee has experience does not mean that experience is desirable, or that they have the proper attributes to perform well in a higher-paying position.
Employers need to stand strong when faced with union attempts to influence the hiring process, and have ironclad language if they ever need to make concessions at the bargaining table in regard to the hiring process. If you or your organization need assistance with current or proposed language on seniority hiring, contact the Wiley Law Office, for negotiations and hiring advice that works.