City of Fond du Lac

The City of Fond du Lac (city) (defendant) was hiring an electrician’s helper. Under a labor agreement between the city and a union, promotion was preferred for filling vacancies, and the city was required to give “appropriate consideration” to an internal job applicant’s qualifications, work history, and seniority. The city also could give appropriate tests to determine fit. A truck driver (plaintiff) who had eight years of work for the city applied for the position. The driver had previously received training to be and had worked as an electrician’s helper. But the city hired a laborer for the position. The laborer had been working for the city for only seven months and had no relevant prior training or experience. During the hiring process, however, the city gave both applicants an intelligence test, and the laborer received a higher score. The driver filed a grievance, claiming that the city failed to give appropriate consideration to the applications. The city responded that the matter was not arbitrable, but an arbitrator concluded that it was. The arbitrator also suggested that the city provide a written explanation of how it gave appropriate consideration to the applicants’ qualifications, work histories, and seniority levels before the matter was arbitrated on the merits. The city did so, but the city and the union still disputed whether the hiring decision was consistent with the agreement. The dispute was then submitted to arbitration for a determination on the merits.