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position was exempt. Although the
duties were not fiduciary, many of the
duties were central to managerial
decision-making authority. 1024
17.04 (formerly Article 17.03 of the 1986
contract) – Posting
The employer posted a Statistician 3 position
which the grievants and other individuals bid for.
The two grievants had eighteen and thirteen
years seniority, while the successful applicant
had only one year seniority. The employer
contended that the grievants did not meet the
minimum qualifications for the position and the
successful applicant was demonstrably superior.
The employer was found to have the burden of
proving demonstrable superiority which was
interpreted as a “substantial difference.”
Demonstrable superiority was found only to
apply after the applicants have been found to
possess the minimum qualification. Also, the
arbitrator stated that if no applicant brings
“precisely the relevant qualifications” to the
position, the employer may promote the junior
applicant if a greater potential for success was
found. The arbitrator found that the employer
proved that the junior employee was
demonstrably superior and the grievance was
denied. 382
The resignation of an OBES Claims Examiner 2
created a vacancy which the employer did not
post, but instead transferred in a Claims
Examiner 2 from an office outside the district.
The transferred employee received a new
Position Control Number, but not the one
vacated by the employee who resigned. A
violation of the contract was conceded by the
employer and the sole issue was the appropriate
remedy. The arbitrator ordered the position in
question to be vacated and posted for bids. The
transferred employee was allowed to remain in
the position until the status of her application
was determined. If she fails to obtain the position
she occupied, the employer was ordered to place
her back into the office which she had left so as
to prevent any lost wages due to the transfers. If
a person other than the transferred employee
receives the position, that employee must be
made whole for any lost wages and benefits. 399
The Department of Natural Resources
determined a need for more Geologist 4
employees and that all employees in the
groundwater division would be classified as
geologists. Geologist positions were posted in
ODNR offices but in the grievant’s office the
most senior Environmental Engineer was
reassigned to a Geologist 4 position. The
reassigned employee testified that her job
responsibilities had changed since the
reassignment. The arbitrator found that the
employer used the reassignment as a disguised
attempt to disrupt the seniority benefits of the
bargaining unit. It was stated that the crucial
factor is the job duties, not the name attached,
and that supervision of others was a substantial
and significant change. The grievant was
awarded the position retroactively with back pay
and benefits. The improperly reassigned
employee was to be placed back into her prior
position with the employer ordered not to recoup
any additional wages earned while she was
wrongly reassigned. 419
The State may not hold bidders to qualifications
it desires, only to qualifications that are required.
The State may not go beyond what it sets forth
on the specific position description and generic
classification specification as requirements for
the position. The specification should not have
been measured against additional requirements
stated in the postings: 457 (1992-94 contract)
While an arbitrator can order the state to not
allow a supervisor to perform bargaining unit
work, it would violate Section 17 for an
arbitrator to force the State to fill the bargaining
unit position with the grievant without testimony
concerning the grievant’s seniority and
qualifications. 498 (1992-94 contract)
While the Grievant claimed to have the
necessary background in research methods in her
summary of her qualifications, the information
contained in her application and resume did not
support her claim. She failed to show any
experience with operational, mathematical,
analytical, or statistical research methods. The
Arbitrator rejected the claim that when the state
denied her an interview for the Planner 3
position and awarded it to someone else, it
engaged in sex and/or age discrimination in
violation of Article 2. A large portion of the
employees in the Emergency Management
Agency are women and three of the top five
leadership positions are held by women .The