Arbitrator tells Clark County to follow the union contract

By DON McINTOSH, Associate Editor

It may not be obvious, but the point of seniority rights in union contracts is not to give workers with seniority an advantage over their co-workers. Seniority rights are meant to promote co-worker solidarity and create a more dignified workplace for all. When promotions, layoffs, and choice of work assignment are driven by seniority in a workplace, there’s less potential for management favoritism, and thus less incentive for workers to curry favor with bosses or badmouth coworkers to management.

But a contract is only as good as its enforcement.

In November 2012, the County Clerk’s office in Clark County, Washington, passed over a senior employee, Melissa McLachlan, and gave a sought-after promotion to a less-qualified worker whom she herself had trained. McLachlan immediately called Maureen Colvin, a union business representative at Vancouver-headquartered Office and Professional Employees International Union Local 11, to file a grievance. Colvin investigated, and working with Katelyn Oldham of Tedesco Law Group, put together a case when the grievance went to arbitration.

A seniority preference clause curbs an employer’s ability to make hiring decisions in an arbitrary manner”— arbitrator Katrina Boedecker

Local 11’s contract with the County states that qualified employees may apply for open positions, and when two or more internal applicants are substantially equal in qualifications, knowledge, skills and abilities, “seniority shall prevail.”

McLachlan started at Clark County in 1988. By 2012, she was the most senior “judicial proceedings specialist” in her department, and she was the one routinely asked to train new hires. When a job as senior court assistant opened up, several supervisors encouraged her to apply. She submitted an application and cover letter, took a skills test and a practical exam, and received 91 percent, the highest test score among seven applicants. She was even asked to fill in several times as a senior court assistant.

But none of that mattered, County HR told arbitrator Katrina Boedecker, because all those things were treated as “pass/fail.” The only part of the hiring process where applicants were ranked against each other was an oral interview, scored by a four-person panel of coworkers.

McLachlan had been uncomfortable during that interview, in which panelists took turns asking questions gathered from the Internet about “leadership.” But they weren’t making eye contact, or asking followup questions.

The panelists had signed a pledge that they would not be biased for or against any applicant. But one was the best friend of another applicant, and gave that person the top rating. Another had a relative who’d had a legal dispute with McLachlan over some construction work. A third panelist had encouraged another applicant to apply, and gave that person the top rating, and McLachlan a much lower score.

McLachlan was told by a manager that she lost the promotion because of her interview scores, even though she had the most experience and had scored the highest on the test. The promotion instead went to a coworker McLachlan had trained, who’d been at the County since 2008, who’d listed less than half McLachlan’s skills on a skill list, had never trained a coworker, and whose sole leadership experience was organizing volunteers during a college clothing drive.

Arbitrator Boedecker held a hearing Sept. 6 in Vancouver, and on Dec. 13 found in favor of the union, ordering the county to give McLachlan the promotion, pay the union’s legal fees, and restore any pay and benefits McLachlan had lost since the day she was passed over.

“Seniority is a much cherished right of union members,” Boedecker wrote. “A seniority preference clause curbs an employer’s ability to make hiring decisions in an arbitrary manner … [and] allows workers to gain job security rights based on length of service rather than favoritism.”

“The employer did not rebut the union’s record that McLachlan was superior … in qualifications , knowledge , skills and abilities,” Boedecker concluded. “It merely stood on its theory that it could rank the applicants solely on their interview scores. The plain language of [the union contract] does not support this theory.”


1 Comment

  1. Don,

    Nice article.

    This pracitice has run riot in the county – and is a crude tool used by managers to pick who they personally want to see get the promotion, not the best candidate (as far as the ‘interview panel questions’).

    Further, although it was intended that managers and supervisors within the applicant’s own department are specifically NOT supposed to be on the interview panel to discourage bias – there has been a trend the last several years or more where the HIRING MANAGER making the decision actually sits on the interview panel, thereby ensuring that their personal favorite will always get the promotion. This is especially true with the Prosecutor’s office administrator Shari Jensen.
    Additionally, many times when the manager doesn’t care for internal applicants from her department that are more than qualified to fill the position, they will ‘open up’ the position to seek external candidates that are not represented and then choose one of the external candidates over the qualified internal candidates.
    Another favorite tactic is to grossly misinterpret the contract clause that states ‘in some cases, education may be considered equivalent to on the job experience’ – where the manager will pass over completely qualified internal applicants in favor of an external candidate with NO experience in criminal courts – for no other reason than a persaonal dislike or resentment against the internal candidates.
    The preceding occur far more often than not, and in some departments (like the prosecutor’s office), it functions as the RULE rather than the exception. Nearly all grievances related to unfair promotional decisions are ‘rubber stamped’ & denied all the way up to Francine Reis, who rarely finds against management. This applies to 95% of all greivances filed in the county – grievance denials due to the strength of the ‘good ‘ole boy’ philosophy – where managers back each other up no matter how egregious the contract violation or strong the supporting evidence is. The manager making the decision simply ignores insurmountable evidence supporting the grievance, and then denies it with a frivolous & often absurd justification for doing so – knowing that it will likely never make it to arbitration or the courtroom.
    You could have a field day researching grievances and their outcomes in clark county regarding not only unfair promotions, but any other contract violation by management. The system is hopelessly broken and clearly works out well for management. Complaints to the union go nowhere; complaints made to HR or within the county are most likely to backfire on the employee and result in heavy retaliation. Few attorneys in the area are willing to take on the county for anything on the side of the employee against the county because of their tactics. They simply use their army of Civil Law Attorneys and Human resource minions to drown the attorney in paperwork, motions, appeals, and character assaults on the employee. Can’t blame them for that, really. The end result? The employee is absolutely helpless and has no means to obtain a just result or enforce the contract & fairness on the county. For example, even the Columbian is understood to be ‘anti-labor’ and would never likely run an article that favors a county employee’s side over the county…or even anything which may reflect negatively on county managers/Human resources. The employee is totally screwed, and must live under a cloud of oppression for the duration of their career.

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