City of Fort Myers, Florida
Southwest Florida Professional Firefighters and Paramedics,
FMCS Case No. 02/08075
117 LA (BNA) 1441
December 17, 2002
D.L. Howell, Arbitrator*
The Union proposed the issue to be:
Was the City's administration of the practical portion of the January 16th and 17th, 2002, engineer's promotional exam conducted in such a way as to cause it to be arbitrary or unfair and if so, what shall be the remedy?
The City stated the Arbitrator is “here to decide the issue of whether it was unfair or not.” The City also expressed concern over the question of remedy—“the other six applicants or the other five applicants.”The parties gave the Arbitrator the right to frame the issue after hearing the merits of the case. The Arbitrator frames the issue as follows:
Was the City's administration of the practical portion of the January 16th and 17th, 2002, engineer's promotional exam conducted in such a way as to cause it to be unfair? If so, what should the remedy be?
16.2 The following outline will establish a uniform procedure for the conduct and qualifications for promotional examinations and for the filling of vacancies.
1. Three years in grade as Firefighter with the Fort Myers Fire Department.
2. Must meet qualifications for “Acting Engineer”.
B) Establishment of Eligibility List:
An eligibility list shall be established for each classification in which a vacancy exists. That list shall be established by competitive exam. Only those candidates who have a final grade of 80% or greater will have their names placed upon the eligibility list. The candidates' names will be placed on the corresponding list beginning with the highest passing grade and ending with the lowest passing grade...
C) Scheduling of Examinations:
Notice will be posted prior to the vacancy occurring when there is advanced warning of that vacancy. If an unexpected vacancy occurs, notice will be posted as soon as practical.
D) Notice of Competitive Examination:
Notice of competitive examinations for promotions shall be posted in a conspicuous place at all City of Fort Myers Fire Department stations for at least SIXTY (60) days prior to such examinations and such notices shall include the following information:
1. Date and Time of Examinations.
2. Location of Examinations.
3. Title and Editions of reference books that the written test questions will come from.
4. The rank being tested for.
F) Conduct of Examinations:
All examinations for promotion shall be conducted and under the control and direction of Fire Chief or the Chief's designee.
In any promotional examination, the candidate shall be examined in writing, by a practical and/or assessment in such matters as will fairly test Knowledge of the actual duties, responsibilities and requirements of the position to be filled and the fitness and qualifications to discharge such duties and meet such requirements . . . The content and character of all exams shall be determined by the Fire Chief or their designee.
All promotional examinations shall consist of the following parts and the weights of the parts shall be as noted:
1. Written test—40%
2. Practical test—60%
The Southwest Florida Professional Firefighters and Paramedics, Local 1826, International Association of Firefighters (“the Union”) and the City of Fort Myers (“the City”) are parties to a collective bargaining agreement effective October 1, 2000 to September 30, 2003. The rank and file bargaining unit contains several job positions including Firefighter and Engineer. The Agreement includes Article 16 that establishes the procedures for conducting promotional examinations. Employees may advance from one rank to another by way of promotional testing. Promotions from Firefighter to Engineer provide the promoted employee with a pay increase.
In August-September 2001, the City posted a notice of a promotional examination for Engineer. This exam started with the written examination given to fifteen candidates on October 29, 2001. The practical portion of the test was finally scheduled for January 16-17, 2002 after some confusion over the grading of the written part of the exam. Of the fifteen candidates who started the testing process, only seven received the necessary 80% grade on the written exam necessary to move on to the practical portion.
The intent of the practical examination was multi-faceted. Material used for the practical testing was taken from several sources including: 1. VFIS Emergency Vehicle Drivers Training Program, 2. United States Fire Administration Emergency Vehicle Operations and 3. National Fire Protection Association Standard 1002 Standard for Fire Apparatus Driver/Operator Professional Qualifications. Testing included pumping and driving skills evaluation which fulfill several purposes to examine the competency of the candidate's skills in operating the apparatus in a pumping mode; examine the competency of the candidate's skills in operating the apparatus in a drafting mode; and examine the competency of the candidate's skills in operating the apparatus on a closed road course.
On January 16, the seven candidates took the “pumping” part of their practical Engineer's examination. During this part of the exam, the City dropped the drafting evaluation after the City noticed that a particular piece of equipment (rope) was missing from Engine 41. On January 17, 2002 the City continued the practical portion of the Engineer's examination with the “Driving” sections of the exam. The testing procedures used for the practical driving examination were taken from the VFIS Emergency Vehicle Driver Training Program, which was chosen by Assistant Chief Jordan. The record reflects that this document and program were not made available to candidates prior to the testing. The Driving part of the practical examination consisted of seven separate graded evaluations taken from the VFIS Emergency Vehicle Driver Training Program. Each candidate was permitted to select the Engine they wished to drive for the testing.
Following the posting of the test results as scored by the City, grievances were filed by two of the candidates, FF Don Jacob and FF Charles Houser. The grievances were processed through all steps as required in the Agreement without a resolution.
The Union contends the issues in dispute between the parties are the simple issues of fairness and equity. The Union claims it is clear that while unintentional, the Engineer's practical test was administered in such a way to cause it to be arbitrary and unfair. As such, it was not a fair and equitable test. There were several contributing factors that ultimately affected the fairness of the Engineer's test.
The Union claims the City's lack of preparation for the test contributed to the unfairness of the administration of the test. Appropriate time was not spent on the preparation of this promotional test. Assistant Chief Jordan, who was in charge of the practical portion of the test testified that he “did not become involved until two to three days before the practical” test, adding, “I personally could have used another week.” The morning of the test, Assistant Chief Jordan realized that he had not planned to have enough cones on hand to set up the testing course. As a result, the course was set up with different sized cones. The Union claims that for a test to be administered in a fair manner, the individuals giving the test must place a top priority on the testing details. The Union argues that was not the case on January 17, 2002.
The Union contends that by his own admission, Assistant Chief Jordan was not qualified to administer the promotional test for Engineers in the City. Though Assistant Chief Jordan elected to utilize the VFIS Emergency Vehicle Driver Training Program as the standard by which Engineer candidates would be tested, he testified that he is not certified as an Instructor for the course, and he has never taken the VFIS course. The Union argues that common sense would dictate that for a candidate to be fairly judged, they should be evaluated by persons with at least the same or higher qualifications than they are being asked to test.
The Union also argues that the failure of the City to notify the candidates about the newly adopted driving standard being utilized also contributed to the lack of overall fairness of the testing. When the City published the notice for the Engineer's exam, it listed the study materials that candidates could be expected to be tested on. The Union argues that while the Agreement only requires the City to publish the study materials for the written exam, as a matter of practice, the notice contained a list of study material that candidates should be familiar with outside the written exam material (i.e., SOP's and Pierce All Steer Training Manual). If the City, as a matter of practice, is willing to tell the candidates some of the specific materials that will be utilized in their practical examination, they should include all of the materials in the notice. The Union claims the VFIS Emergency Vehicle Driver Training Program book should have been on this list.
The Union contends the City's decision to remove one of the four sections of the practical portions of the promotional test midway through the testing ultimately gave some candidates a scoring advantage over others. This decision by the City changed the practical test scoring from a possible 140 points to a possible 110 points. In the end, one candidate that had already failed this 30-point section of the testing at the time it was decided to remove it, ended up on the final promotional list.
The Union claims the City abandoned its obligation to adhere to the VFIS testing standards they elected to utilize in this testing and in doing so created an undisputed advantage for some Engineer candidates taking this test. Once selected, the City had an obligation to adhere to the standard they had selected. The Union points out that Appendix One—Station Six—Parallel Park Exercise of the VFIS, selected by the City, requires that “the length of the parking space should be adjusted to equal the length of the vehicle plus eight feet (8').” No adjustments were made to the cones during this testing. The Union also points out that Chief Chappelle stated that this fact coupled with the fact that some engines used for the testing are thirty inches longer than others would create a situation where one driver “may have an advantage over another.”
The Union claims the two flawed sections of the driving test represented 28 of the possible 110 points available. These testing sections represented 25% of the overall scoring, clearly enough points to have affected the final outcome. The practical portion of the examination carries with it a weight of 60% of the final grade for promotion. Both FF Houser and FF Jacob selected the wider Engine 41 for their practical testing without knowing that selecting a narrower engine would have given them an advantage.
The Union argues that it is clear that the lack of fairness in the testing did affect the final scoring outcome. The Union states that while it is clear that the City has a management right to conduct promotional examinations, these examinations must be conducted in a fair and equitable manner. The Union requests that the Arbitrator uphold the grievances regarding the lack of fairness in the promotional testing on January 16-17, 2002. The Union further requests the City be ordered to re-administer a fair and equitable Engineer's practical test to those seven candidates who passed the October 2001 written examination.
It is the position of the City that all candidates were scored in a fair and equitable manner, operated on a validated road course, with speed requirements, incorporated by Assistant Chief Jordan, to allow adequate evaluation of the candidate's skills while operating at a realistic speed. The City contends that to help ensure the fairness of the test, candidates were allowed to choose the engine on which they were tested. This allowed each candidate ample time to operate the engine and acquire a “feel” for it. No one was aware of the road course test layout until the day of the test. This prevented them from practicing several maneuvers, which evaluated the candidate's perception of their engine. In a perfect world, all driving maneuvers would be performed using 2-3 safety or support personnel, however, in reality this is often impossible. Therefore, adequate evaluation of their skills is essential in a testing situation.
The City points out that in an effort to maintain the equity of the test procedure, the City dropped the drafting evaluation when it was learned that Engine 41 lacked a utility rope used to maintain the depth of the suction strainer. No candidate was graded using data from the drafting evaluation. All candidates were evaluated on the “exact” same basis. The City contends that all candidates were provided equal time and opportunity to practice anything they felt was pertinent to the practical test. The test was administered by two representatives from Cape Coral Fire Department and one from Iona McGregor and one from South Trail Fire Department. This was done to ensure no prejudice from internal sources in the testing and scoring.
The City maintains the test was administered in a fair and equitable manner, scored in a manner favorable to the candidates by “removal of the drafting evaluation,” and designed to allow adequate evaluation of the candidates' skills. The driving portion of the test was developed by Volunteer Fireman's Insurance Corporation and has been adopted by the United States Fire Administration as the appropriate driver-training course. The City argues that all things being equal, and in this test they were, the best personnel were identified and placed on the promotional list.
The City points out that several of the candidates utilized equipment (in the driving and drafting portions of the exam) that were selected by them, and they had every opportunity to ensure their complete readiness to be competitive. In these cases, the excuse of not knowing what testing materials or what driving apparatus or course they would encounter suggests ambivalence on the candidate's part. The City points out that when one is about to take the state required vehicle operator driver's license examination (written and practical portions) they do not practice the course selected by the instructor, nor do they know exactly what's going to be on the exam (written questions, maneuvers to be performed, course layout or conditions, etc.). In each case, however, the driver's test is administered fairly irrespective of the candidate's study habits. The City claims it is solely the responsibility of the promotional candidate to prepare individually for the rigors associated with the promotional process, and there are seven individuals who might stand to benefit if the Arbitrator's decision finds in the Union's favor.
The City claims it is rare indeed to be a party to a proceeding where the truth is so disheveled that it blurs the true intent of a practice to ensure fair and equitable treatment for those who it is our obligation to serve. These matters could have been resolved without the need for the arbitration except for the dogged insistence that the Union has for wishing to control every term, benefit, privilege, and condition of employment. The City contends these ongoing attempts are disruptions and violations of management's right to conduct its operation in the best interests of both its employees, and the citizens of the City. The City requests the Arbitrator to deny the grievance.
Even in the absence of specific contract provision, management has been held entitled to give reasonable and appropriate written, oral, performance, aptitude, and physical abilities tests where relevant to job performance as an aid in determining the ability of competing employees. (See Hobet Mining, 99 LA 1187; Detroit Edison Co., 96 LA 1033). Many arbitrators look with favor upon the use of proper tests in appropriate situations. For example, Arbitrator Harry J. Dworkin noted: “The employment of tests, fairly and objectively administered, would appear to be desirable, and in the interests of the employees, the company, and the union. A sound testing procedure should serve to allay any suspicion among competing employees as to favoritism or discrimination in awarding jobs.”(See Mead Containers, 35 LA 349). (emphasis added) However, the test must be fairly administered and graded and uniformly applied. (See South Cent. Bell Tel. Co., 52 LA 1104). Hill and Sinicropi state in their book on management rights: “Not only must tests be job-related, but management must also take care that they are administered in an even-handed manner. No individual should receive an advantage of any kind...” (See Hill and Sinicropi, Management Rights, BNA Books, p. 324). Thus, tests must be so fairly administered as to persuade the disinterested mind of their fairness and approximate accuracy.
In the case here at hand, Article 16, Section 16.2(F), of the Agreement specifically states: “All examinations for promotion shall be conducted and under the control and direction of Fire Chief or the Chief's designee ...” Section 16.2 of the Agreement also specifies that “all promotional examinations shall consist of the following parts and the weights of the parts shall be as noted: Engineer: 1. Written test—40%; 2. Practical test—60%.” Therefore, the City had the right and responsibility to conduct the subject practical examination on January 16-17, 2002. The Union is not primarily contesting the content of the practical exam, but basically claims the administration of the exam was unfair. Thus, the issue to be resolved is the fairness of the administration of the practical portion of the Engineer's examination given on January 16-17, 2002.
The City maintains the test was administered in a fair and equitable manner, scored in a manner favorable to the candidates by “removal of the drafting evaluation,” and designed to allow adequate evaluation of the candidates' skills. The City did in fact do several things in an effort to ensure that the practical portion of the Engineer's examination was fair and equitable for the candidates. The candidates were allowed to choose the equipment on which they were tested, although this may have turned out to be a disadvantage because of the way the driving courses were conducted. The test was administered by representatives from other fire departments in an effort to ensure no prejudice from internal sources in the testing and scoring. No candidate was graded using data from the drafting evaluation. The Arbitrator is convinced that the City had no intention to administer the practical examination in an unfair manner.
On the other hand, after hearing witnesses, reading a 200 page transcript, and carefully studying numerous exhibits, the Arbitrator is convinced there were serious flaws in the practical examination on January 16-17, 2002. Why does the Arbitrator reach this conclusion?
One critical point is that the City did not adhere to the testing procedures selected for the practical driving examination—VFIS Emergency Vehicle Driver Training Program (VFIS) This VFIS program specifically states in Station Six-Parallel Park Exercise: “Setting up the parallel park exercise requires that the station be adjusted for the specific emergency vehicle traveling the course. The length of the parking space should be adjusted to equal the length of the vehicle plus eight feet (8').” (emphasis added) Station Seven-Diminishing Clearance Exercise in the VFIS states in part: “... Extreme care must be taken in measuring the width of the station because of the very close tolerances of the vehicles that will drive the station.” The Personnel Policies & Procedures (SOP) that had been used in such exams in the past stated: “... The lane narrows from a width of 9 inches (225 mm) wider than the vehicle to a diminishing clearance of 1 inch (25 mm).” (emphasis added)
The Arbitrator recognizes the VFIS program was the standard for the subject practical examination. However, it is obvious that the placement of the cones was to be precise as measured from the vehicle being used; and when the vehicle being used changed, the course (cones) should be adjusted. This was not done, as testified to by both Union and City witnesses. Although the variances in the different vehicles may have been slight, so were the tolerances for error in the driving exercises. If the cones are not adjusted to the vehicle being used, one driver may have an advantage and/or disadvantage compared with a driver using a different vehicle. Lt. Nisbet's statement indicates he recognized some problems in the use of different pieces of equipment in providing “different results for the participants.” Lt. Nisbet's statement was a form of hearsay evidence since he was not available for cross-examination but was used to corroborate other evidence in the record. The Arbitrator does not feel the use of different vehicles by the candidates was unfair as such, but when this is done, the course (cones) must be adjusted within the standard for that vehicle. Thus, the City violated the standards as set forth by the VFIS program.
The Union also points out that the candidates were not aware of the new VFIS standards. The City acknowledges that the VFIS Emergency Vehicle Driver Training Program was not available to the candidates. SOP's were listed in the book list on the Engineer's Examination announcement. There was no mention of the VFIS, and/or that it would be the standard for the exam. The City is correct in that Section 16.2(D) of the Agreement only requires “title and editions of reference books that the written test questions will come from.” The City is also correct in that the candidate has a responsibility to be ready for his/her examination. But the examiner has a responsibility also. Should any exam cover subjects/content that the examiner has not in some way alerted or exposed the candidate (student) to? If not, how can the examinee be ready to take the exam? How can candidates meet their responsibility of being ready to take an exam, as the City suggests, if they do not know what is expected? This is just as applicable in any organization as it is in an educational environment. That is part of the “being fair” concept. The City seems to recognize this by furnishing a book list for the written portion of the examination, although it is also required by the Agreement. Lt. Nisbet, one of the external examiners, seemed to also recognize this when he stated one area of his concerns was “each participant was not given prior knowledge of the driving course.” The record reflects the SOP's used in the prior Engineer's practical examinations makes no reference to parallel parking, as does the VFIS program. It is a basic principle in testing that candidates (students) should know what is expected of them prior to a test and not revealed through the test. It is the candidates' responsibility then to prepare for the test. This was not properly done by the City (examiner) in this case, although the Arbitrator thinks it was done unintentionally by the City.
The record clearly reflects that the test was hurried with a lack of full preparation before the start of the practical examination. Although this may have not been unfair as such, it may have contributed to the delay on the set-up of the driving course (such as different size of cones) and other aspects of the driving exam that were questionable. This should not happen, especially when there have been several months between the announcement and the date of the practical examination. However, this lack of preparation standing alone is not unfair sufficiently to rule that the entire exam was unfair. The Union's argument that Assistant Chief Jordan was not qualified to give the exam is without merit. A person does not have to be certified in a given area, nor have taken an exam, to administer it to candidates in an appropriate manner.
The removal of the drafting evaluation was not unfair. The City was attempting to be fair to all candidates by taking this action. No candidate was graded using the data/score from the drafting evaluation. The total score needed for a passing grade in the practical examination was also reduced by the points allocated to the drafting evaluation. Therefore, no candidate was at a disadvantage because of taking or not taking the drafting evaluation. Exam questions are sometimes “thrown out” when it is discovered the question is unfair, for whatever the reason.
The Arbitrator is convinced that Assistant Chief Jordan attempted to provide a fair Engineer's practical examination on January 16-17, 2002. However, the record supports the conclusion that the administration of the Engineer's practical examination was unfair for all of the reasons explained in detail in the above discussion. There is no need to restate those reasons here.
The City was concerned about the Arbitrator awarding a remedy. The important point to stress is that both arbitrators and the courts have established that if the arbitrator has jurisdiction of the subject matter, he also has implicit power to fashion an appropriate remedy “sufficiently grounded in the contract,” even though the agreement is silent as to remedies. (See Hill and Sinicropi, Remedies in Arbitration, BNA Books, p. 26). In Phillips Chemical Co., 17 LA 721, Arbitrator Emery declared that “the power merely to recite that the Agreement has been violated, without the power to redress the injury would be futility in the extreme ... jurisdiction means the power to grant relief.”
On pages 11-12 of the transcript from the arbitration hearing, the City agreed that if the Arbitrator were to rule that the Engineer's practical exam was held unfair, the ruling would apply to all of the candidates who took the examination on January 16-17, 2002. The transcript on pages 11-12 states:
Arbitrator: “...if the arbitrator were to rule that the test for Houser was unfair, that that same ruling would be applied to the other six individuals involved?”
Simpson: “That's correct.”
The Arbitrator has ruled that the Engineer's practical examination given on January 16-17, 2002, was unfair. Therefore, the grievance of FF Houser is sustained, in accordance with the City's agreement at the hearing, the City should re-administer a fair and equitable Engineer's practical test to those seven candidates who passed the October 2001 written examination. The City is correct that the reexamination should apply to all seven candidates if each candidate is to be treated fairly and equitably. The subject exam should be given for the seven candidates within sixty (60) calendar days from the date of this Award. The candidates would then be ranked for promotion in accordance with Article 16 of the Agreement. There is no provision for back pay or other monetary benefit in this Award. The Arbitrator relies on the good faith of the parties in the implementation of this Award.
For all of the reasons explained in detail in the above discussion, the record supports the conclusion that the Engineer's practical examination given on January 16-17, 2002, was not administered in a fair manner. Therefore, the grievance of FF Houser is sustained. As explained above, and agreed to by the City, all seven of the candidates who took the Engineer's practical examination on January 16-17, 2002, should be permitted to take the re-administered examination. The Engineer's practical examination should be given again in a fair and equitable manner for the seven candidates within sixty (60) calendar days from the date of this Award. There is no back pay or monetary provision in the Award. The Arbitrator retains jurisdiction for sixty (60) calendar days from the date of the Award in the event there is some problem in understanding and/or in implementing the Award.
* Selected by parties through procedures of the Federal Mediation and Conciliation Service
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