3 CIR 315 (1977)



LOCAL 226, |
Plaintiff, |
Defendant. |

Filed October 17, 1977.


Robert E. O'Connor, Jr., for Plaintiff

Malcolm D. Young, for Defendant.

Before: DeBacker, Kratz and Green, J.J.


This case principally involves the construction of a collective bargaining agreement entered into between the union and the Millard School District. The paragraph in dispute is Article X dealing with seniority. It provides:

"The Board recognizes the principal of seniority in connection with promotion, transfer, layoff, re-employment after layoff, to the extent that where in the judgment of the Administration, the qualifications of the employees involved performing the work are substantially the same, the employee having the longer term of continuous service shall be given the preference."

The union essentially opts for the position that under the clause, so long as the senior employee is capable of performing the job, he is entitled to it, even though the Administration judges a more junior employee better qualified. That interpretation directly contravenes the literal language of the provision. It is clear from a reading of the provision that all that the School District conceded to the union was this, if skills are equal, seniority will prevail. Where skills are not equal, seniority is irrelevant.

The judgment as to equality or difference in skills is left to the Administration. We do not believe that the judgment of the Administration is absolute. If no real difference in skills in fact existed, a mere statement by the Administration that there was a difference would not bind the union. However, so long as the Administration entertains an honest belief that there is a difference in skills, and there is at least some evidence to support that belief, the judgment of the Administration should prevail. What we have said with regard to skills applies equally to any other qualification for the post. So long as the alleged difference in qualification really goes to ability to Perform the job and the Administration honestly believes that there is a difference in qualification, and there is at least some evidence to support the belief in the difference, the judgment of the administration is controlling.

Where there is a difference in opinion between the parties as to qualifications, there is a grievance mechanism contained in Article VIII. The final step in that mechanism is a hearing before the Millard School Board. In this case, there was an opening in the Position of senior high Custodian. The Administration of the School District granted the Position to Grant Buss. Among other applicants for the position was Sam Versch. Versch had seniority over Buss. The union filed a grievance on behalf of Versch which was pursued through a hearing before the Millard School Board. The Millard School Board affirmed the position of its Administration. The union then brought the case here.

The union agreed to an arbitration process in which the final step was a decision by the Millard School Board. Since this is the contractual process agreed upon between the parties, we believe that though the Board may be an interested party, its decision as an arbiter is entitled to deference from us. Ordinarily, unless an arbitration award involves a gross error of law, Safeway Stores v. American Bakery & Confectionery Workers International Union, Local 111 , 390 F. 2d 79, 82-83 (5th Cir. 1968) or is so totally void of record support that the decision may be regarded as arbitrary and capricious, we would affirm the award of an independent arbiter. Where the parties have agreed in advance to a decision by an arbiter who may be partial, we believe no different standard should be applied.

The position involved in this case would be a supervisory one in which the employee would have to provide leadership and guidance for other custodial employees. The District set up a system of interviews for those employees who met the minimum qualifications. The aim of the interviewing process was to attempt to determine the leadership ability of the various employees. Obviously leadership potential is difficult to discover. Equally obviously it is an important criteria for a supervisory position. Having a group of interviewers attempt to discover the existence or absence of such a potential through an interview process is a reasonable means by which to attempt to isolate such a potential. The interviewers determined that Mr. Buss had leadership potential greater than Mr. Versch. There is no evidence of bias in the interviewing process. Leadership potential was a qualification for the job. Therefore, the Administration had a reasonable basis for finding a difference in qualification, and that difference in qualification negated the seniority provision. The School Board as arbiter upheld the position of the Administration. They upheld that decision on the basis of a construction of the contract of which we have already approved. There is no merit in plaintiff's suit here. We enter judgment for the defendant.