## Facts

- The City of Fond du Lac was filling a vacancy for an electrician’s helper.
- A labor agreement between the City and a union stated that filling vacancies by internal selection was preferred.
- The agreement required the City to give “appropriate consideration” to an internal applicant’s qualifications, work history, and seniority.
- The agreement also allowed the City to give “appropriate tests” when determining an applicant’s fit for the job.
- A truck driver employed by the City for about eight years applied for the electrician’s helper position.
- The truck driver had previously received training for, and had performed work as, an electrician’s helper.
- A laborer employed by the City for about seven months also applied for the position.
- The laborer had no relevant prior training or experience for electrician’s helper work.
- During the selection process, the City administered an intelligence test to both applicants, and the laborer received the higher score.
- The City selected the laborer for the electrician’s helper position.
- The truck driver filed a grievance asserting the City failed to give “appropriate consideration” to the required factors under the labor agreement.
- The City argued the dispute was not arbitrable, but an arbitrator determined the grievance was arbitrable.
- Before proceeding further, the arbitrator suggested the City provide a written explanation of how it gave “appropriate consideration” to qualifications, work history, and seniority.
- The City provided the requested written explanation, but disagreement remained over whether the decision complied with the labor agreement, and the dispute was submitted to arbitration for a determination on the merits.

## Issues

1. Whether a grievance challenging the City’s internal selection for a vacancy under an “appropriate consideration” clause was subject to arbitration under the labor agreement.
2. Whether, under the labor agreement, the City’s decision-making process satisfied the requirement to give “appropriate consideration” to qualifications, work history, and seniority when choosing between internal applicants.
3. How the labor agreement’s allowance of “appropriate tests” fit with, and affected, the City’s obligation to consider the listed non-test factors.

## Decision

- The arbitrator ruled that the grievance was arbitrable because it concerned the application of express labor-agreement language governing how vacancies were to be filled.
- As part of administering the arbitration process, the arbitrator required (or, at minimum, requested) that the City provide a written statement explaining how it evaluated the contractual factors (qualifications, work history, and seniority) in making its selection.
- After the City provided that explanation and the parties still disagreed about contract compliance, the dispute proceeded to arbitration for a decision on the merits.

## Legal Principles

- A dispute over an internal selection can be arbitrable when the labor agreement includes standards (such as “appropriate consideration”) that govern how the employer must evaluate applicants.
- When a contract requires “appropriate consideration” of identified factors, the employer’s decision may be examined for consistency with the contract’s stated criteria, rather than treated as wholly insulated managerial judgment.
- Contract language permitting “appropriate tests” does not eliminate the separate contractual duty to consider other listed factors; the interaction between testing and other criteria is a matter of contract interpretation.
- In administering a labor arbitration, an arbitrator may require the employer to explain how it applied contractual criteria, including through a written explanation, to clarify the employer’s asserted basis for the challenged decision.

## Conclusion

*City of Fond du Lac, 69-2 ARB ¶ 8520 (1969)* involved a union grievance contesting the City’s choice of a short-service laborer over an experienced, long-service truck driver for an electrician’s helper vacancy, where the City had used an intelligence test and the labor agreement required “appropriate consideration” of qualifications, work history, and seniority while permitting “appropriate tests.” The arbitrator found the dispute arbitrable, required a written explanation of the City’s application of the contractual factors, and the matter proceeded to arbitration for a merits determination on whether the City’s process complied with the labor agreement.
