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FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 01-12561


Grievant Ariadyne Herbert
UAW LOCAL NO. 2600,
Union,

and

COUNTY OF KENT, MICHIGAN,


Employer.
______________________________________/

OPINION OF THE ARBITRATOR

March 29, 2002

After a Hearing Held February 4 and 19, 2002


At UAW Region 1-D Headquarters in Grand Rapids, Michigan

For the Union: For the Employer:


Merry J. Smith Thomas L. Drenth
International Representative Labor Counsel
UAW Region 1-D County Administration Building
3300 Leonard Street, NE 300 Monroe Avenue, NW
Grand Rapids, MI 49525-3363 Grand Rapids, MI 49503-2222
1.0. The Parties

From 1986 until she was laid off in February of 2001, Grievant was

employed as a management information systems technician by the Health

Department of the County of Kent, Michigan (“Employer” or “County”).

Many County employees, including Grievant, are represented by Local No.

2600 of the International Union, United Automobile, Aerospace, and

Agricultural Implement Workers of America (“UAW” or “Union”). Labor

relations between the parties are governed by an Agreement effective

January 1, 2001-December 31, 2003, which was received into evidence as

JX 1 (“CBA”).

2.0. Factual Background

The Health Department’s annual budget is approximately

$25,000,000. Of that amount, it receives approximately $8,000,000 from the

State of Michigan under a contract which requires the Health Department to

be accredited. In August of 2000, the Health Department underwent an

accreditation audit. Auditors found the Department deficient in a few key

areas, most notably food service sanitation. Although the audit report, EX 7,

lauded the Department for its food service inspection efforts, the report

noted that the Department was attempting to inspect 2,167 establishments

with only 7 inspectors, known as sanitarians. The report concluded in

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pertinent part:

Several staff have establishment counts in the 280’s to as many as


340, this is far too much. We feel that adding staff will be the only
way inspection frequency, performing the required temporary
inspections, getting the vending inspections performed, and being
effective will be achieved.

Should the Health Department lose its accreditation, its contract with

the State would be jeopardized, putting at risk funding for programs such as

the following:

♦ AIDS/HIV Prevention

♦ Breast & Cervical Cancer Control

♦ Cardiovascular Disease Prevention

♦ Childhood Lead

♦ Childhood Well Being

♦ Family Planning

♦ Hepatitis B

♦ Immunizations

♦ Maternal & Infant Support

♦ Sexually Transmitted Disease Control

♦ SIDS

♦ TB Control. EX 8.

Threatened with the loss of accreditation and funding, the Health

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Department determined to correct the deficiencies found in the audit report.

The hiring of new sanitarians required funding. The County’s regular new-

hire program was open only at the beginning of the fiscal year, and this was

a mid-year problem with a deadline for correction. Since the Board of Health

had let it be known that the Board would not welcome new requests for

funding, Health Department management looked internally for sources of

money. Taking funds from the environmental health division, which

oversees food service sanitation, proved not to be feasible because

environmental health generates revenue through licensing fees. Thus, any

cutback in the environmental health budget would result in a loss of revenue

to the Health Department. Other division directors were consulted, but no

obvious source for sufficient funding was uncovered.

Barbara Terry, then Deputy Public Health Director, turned to Bill

Anstey, the Health Department’s Director of Finance and MIS, for ideas.

Mr. Anstey suggested that Grievant’s position could be eliminated. At the

same time, Mr. Anstey proposed other personnel changes. In October of

2000, Ms. Terry informed Grievant that Grievant’s position could be

eliminated. The final action plan devised was explained as follows in a

Finance and Physical Resources Committee Action Request prepared for a

meeting on February 6, 2001, and received into evidence as EX 10:

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• The Health Department underwent on-site Public Health
Accreditation during August 2000. KCHD met 264 of 275 indicators
required for full accreditation. Full accreditation is necessary to
continue to receive grant funding under the CPBC [Comprehensive
Planning and Budgeting Contract] contract. KCHD did not meet 11
indicators spread over four programs. This request addresses Food
Service Sanitation Accreditation standard that requires that 85 percent
of all licensed food establishments be inspected every 6 months and
recommends implementing an enhanced administrative structure.
• A corrective action plan detailing how the department will meet the
standard is due by March 20, 2001, and full compliance with the
standard is required by January 20, 2002. Failure to meet the
standards jeopardizes funding received [from] the Michigan
Department of Agriculture (Local Public Health Operations) which
supports some of the funding for food sanitarians.
• KCHD is able to inspect 80 percent of licensees at the required
frequency with current staff, who are operating at maximum
efficiency as documented by the accreditation report. Additional
Sanitarians are required to meet the minimum inspection standard of
85 percent.
• KCHD is requesting an exception to the Fiscal Policy – Annual
Budget III-3.c.1 (additional personnel will only be considered as part
of the budget submission process) and is requesting approval of the
addition of one full-time Sanitarian position in 2001.
• KCHD also requests approval to convert two vacant seasonal
Sanitarian positions into another full-time Sanitarian position. A third
position may be necessary to meet requirements. The need will be
reviewed during the 2002 budget.
• Conversion of a vacant Programmer Analyst position (MPP 22) to
Database Administrator (MPP 26) is required to support the Public
Health Information System (PHIS) and improve data management and
reporting capabilities.
• Conversion of the existing Financial Analyst position (MPP 21) to
Senior Financial Analyst (MPP 23) is required to provide closer
supervision of the KCHD accounting staff and better oversight of the
financial reporting process.
• The Management Information System Technician (UAW 24)
classification no longer meets the needs of the Health Department and
the position can be deleted from the budget.

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• The Legislative and Human Resources Committee, on January 23,
2001, approved of the action requested. (Emphasis supplied.)

A more detailed discussion of the action plan can be found in UX 4, which

was prepared by Ms. Terry and Mr. Anstey for presentation to the Board of

Health.

The action plan was approved at all levels of County government,

including the County’s Board of Commissioners. On February 26, 2001,

Grievant was handed a 14-day notice of indefinite layoff, effective March

12, 2001, in compliance with CBA Section 18.1(b). She was told clean out

her desk and leave immediately, although she was, of course, paid for the

two weeks. It is undisputed that the Health Department’s management

information systems group has in fact operated with only three employees

since Grievant’s layoff, instead of the four employed during her tenure, UX

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On these facts, it is impossible to conclude anything other than that

the County engaged in a perfectly legitimate governmental function in

response to a very real need, in order to protect the public interest. Grievant,

however, does not agree. Thus, the resort to arbitration, the hearings for

which were held February 4 and 19, 2002, at UAW Region 1-D headquarters

in Grand Rapids, Michigan. The parties have filed their briefs, and the

matter is ripe for decision.

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3.0. Pertinent Provisions From The Collective Bargaining Agreement

3.1. Excerpts From The Collective Bargaining Agreement

Section 1.2. Definitions. The terms “employee” and “employees” when


used in this Agreement shall refer to and include only those full-time
employees and regular part-time employees who are employed by the
County in the collective bargaining unit described herein. For purposes of
this Agreement, the following definitions shall be applicable:

(a) Full-Time Employee: A full-time employee is an employee who


is working the official workweek on a regular schedule in a
position classified by the County.

(b) Regular Part-Time Employee: A regular part-time employee is


an employee who is working on a regular schedule but who is
working less than the full-time requirements of the position. In
order to be eligible for benefits provided for regular part-time
employees by this Agreement, other than accrual of sick leave
and vacation, a regular part-time employee must be regularly
scheduled to work forty (40) or more hours in a pay period.

(c) Irregular Employee: An irregular employee is an employee who


is working on any other basis, including seasonal or temporary; or
an individual working under contract and who is not included
within the above definitions of full-time employee or regular part-
time employee. …

Section 3.1. Rights. It is understood and hereby agreed that the County
reserves and retains, solely and exclusively, all of its inherent and customary
rights, powers, functions and authority of management to manage the
County’s operations, and its judgment in these respects shall not be subject
to challenge. These rights vested in the County include, but are not limited
to, those provided by statute or law along with the right to direct, hire,
promote, transfer, assign and retain employees in positions within the
County. Further, to suspend, demote, discharge for just cause, or take such
other disciplinary action which is necessary to maintain the efficient
administration of the County. It is also agreed that the County has the right
to determine the method, means and personnel, employees or otherwise
(subcontracting subject to the provisions of Section 19.19), by which the

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business of the County shall be conducted and to take whatever action is
necessary to carry out the duty and obligations of the County to the
taxpayers thereof. The County shall also have the power to make rules and
regulations relating to personnel policies, procedures and working conditions
not inconsistent with the express terms of this Agreement.

Section 6.4. Arbitrator’s Jurisdiction. The arbitrator’s powers shall be


limited to the application and interpretation of this Agreement as written. He
shall be at all times wholly governed by the terms of this Agreement, and he
shall have no power or authority to amend, alter or modify this Agreement in
any respect. The Union acknowledges that the Employer retains all rights
not otherwise abrogated under the express terms of this Agreement, as
generalized in Section 3.1 hereof. The arbitrator shall have no authority to
rule on job descriptions, work assignments (not reclassifications), work
standards or personnel requirements. …

Section 16.2. New or Reclassified Positions. … (c) In the event a


reclassification results in the elimination of a bargaining unit position, the
Employer will notify the Union of such proposed action in writing. The
notice will set forth the reasons for the reclassification along with a brief
description of the job affected. If the Union objects to the proposed action it
must notify the Human Resources Director of its objection within fifteen
(15) days of the date the notice was sent. If the Union responds in writing
within the fifteen (15) day period, the proposed reclassification will be
discussed at the next regularly scheduled Review Committee meeting. If the
parties cannot resolve the issue within the fifteen (15) days of the Review
Committee meeting, each party will be free to pursue their appropriate
remedies.

Section 18.1. Layoff Procedure. Personnel layoffs shall be accomplished in


the following manner:

(a) Definitions. A temporary layoff shall be a layoff from work for a


period not to exceed five (5) working days. An indefinite layoff
shall be a layoff from work for an indefinite period of time in
excess of five (5) working days. An employee’s status shall be as
defined in Section 1.2.

(b) Notice. Employees who are indefinitely laid off shall receive
fourteen (14) calendar days’ advance notice … . …

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(e) Recall. …

(1) No position shall be posted nor a new employee hired for a


position from which employees with recall rights are laid
off until all employees in that position are recalled to work.
Position shall mean identical classification, same
department and identical employee status. …

Section 19.19. Subcontracting. While it is not the intent of the County to


erode the current Union membership, Section 3.1 of this Agreement affirms
the right of the Employer to subcontract work normally performed by
bargaining unit employees. Prior to subcontracting work normally performed
by bargaining unit employees, the Employer will provide the Union ten (10)
days written notice of the intent to subcontract and an opportunity for the
Union to present the County with alternatives to subcontracting.

Other provisions of the CBA may be cited as the case requires.

3.2. Comments On The Collective Bargaining Agreement

Several observations about the CBA are worth noting. First, the

arbitrator’s authority is narrowly circumscribed. Although the CBA contains

a “just cause” provision for discipline and discharge, Section 7.1, it contains

no comparable provision governing layoff. Neither Grievant nor the Union

contends that her layoff was a pretext for discharge, so that the CBA’s just

cause provisions are inapplicable to these grievances. Moreover, the CBA

does not contain any “civil rights”, “equal opportunity”, or other

nondiscrimination clause, so that complaints of sex or age discrimination

cannot be remedied through the grievance procedure. In short, there is very

little that the arbitrator can do for Grievant.

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4.0. Grievant’s Complaints

4.1. The First Grievance

In December of 2000, Grievant’s supervisor, Portia Yarbrough, began

her perennial maternity leave. A contract employee, Greg Schmidt, was

hired to fill in during her absence. Grievant complained that Mr. Schmidt

asked many questions about Grievant’s own job and even intimated to her

that he was there to learn it. On December 19, 2000, Grievant filed the first

of her two grievances, UX 2, which alleged:

On 12/11/00 Greg Schmidt, a contractual employee, began working at


the Health Department in the MIS area. A memo was distributed
explaining he would be filling Portia Yarbrough’s position during her
FMLA leave. However, he is also performing bargaining unit work
which has been part of my job. I have been verbally told by my
supervisor, Portia Yarbrough, and Barbara Terry, Deputy Director of
the Health Department, that my job is being eliminated and “farmed
out.”

The CBA provision cited was Section 17.17, Subcontracting [from the

earlier contract; the current subcontracting provision is Section 19.19],

and the remedy requested was, “Limit Mr. Schmidt’s duties to those duties

performed by Portia Yarbrough.”

Barbara Terry, Deputy Public Health Director, responded to the

grievance, in a memorandum to Grievant, dated February 13, 2001, UX 6:

Statement of Facts: On-going discussion has been held with Human


Resources and UAW stewards/staff regarding the proposed
organizational changes within the Health Department. Step 2

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discussion of this grievance has been delayed at the request of the
union.

On December 11, 2000, a contractual employee was hired to fulfill the


responsibilities of a management staff during her FMLA leave. You
stated that the contractor told you that he would also be performing
part of your job responsibilities. The contractor in reference was let go
on December 21, 2000 due to not meeting the needs of the Health
Department. Another contractor was hired as a replacement.

Discussion: On February 7, 2001, management met with you and two


chief stewards to discuss the grievance filed in response to the hiring
of the first contractor. A Human Resources representative was also
present at the meeting. You stated that the second contractor was
performing the job responsibilities of the employee on Family Medical
Leave and that any interaction was appropriate and basically limited
to determining who should address the identified MIS problems (e.g.
assignment of responsibility for addressing computer problems as
identified by end users).

Decision: The current contractor is performing the job


responsibilities of the employee on Family Medical Leave. As this is
the solution that you requested, management considers this grievance
resolved. (Emphasis supplied.)

The memo was copied to Debbra Mick, Chief Steward, Local 2600, among

others.

Grievant denied making the italicized statement attributed to her in

UX 6 (see UX 7), but her denial appears to be contradicted by the meeting

notes kept by the Chief Steward, UX 25, who was present at the meeting:

… Barb Terry began by reading the grievance. She explained that


Greg Schmidt, the original contract person, was no longer working at
the Health Department. She said they did not feel his qualifications
were a good match for the work that needed to be done. He has been
replaced by Tom Streelman. Ariadyne admitted that Tom is doing

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more of the network work, and less of the actual PC work. It was
obvious that Barb Terry did not want to discuss the part of the
grievance that dealt with the elimination of Ariadyne’s position. She
wanted the grievance settled solely because the contract person had
been removed and the present one was not doing Ariadyne’s work.
Deb Mick stated that this item had gone to the Board of Health last
month and has been approved. She said that she thought the way the
whole thing was handled was “sneaky.” Kathy TenWolde agreed that
elimination of the position was a part of the grievance. Ariadyne has
been a Health Department employee for 15 years and at the very least,
she deserves her employer to be honest with her. … (Emphasis
supplied.)

Section 17.17 of the previous contract was not introduced into

evidence, but it is reasonable to assume that its provisions were essentially

the same as those of the current CBA, Section 19.19, and neither party

contends otherwise. If that is the case, then the contract was not violated,

because it expressly reserves to the County the right to subcontract.

Moreover, whatever harm may have occurred surely was de minimis,

inasmuch as the contractor involved in the grievance was terminated after

only 10 days. There is no contention that Grievant’s compensation was in

any way affected by his brief stay. His replacement, Tom Streelman, left as

anticipated after Portia Yarbrough returned from maternity leave.

4.2. Grievant’s Injury and Her Worker’s Compensation Claim

As if to add injury to insult, on November 8, 2000, after Grievant had

been informed that her job probably would be eliminated, she fell and

severely injured herself while carrying computer equipment down a hall at

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the Health Department. Mr. Anstey put her in a cab to be taken to a hospital

and refused to allow a coworker to accompany her, even though the

coworker offered to use personal time to do so. Grievant used sick leave and

vacation time during her time off and initially tried braces and therapy to

heal her injuries. When they did not respond, she underwent surgery on

March 21, 2001. She filed a worker’s compensation claim and remains on

comp.

4.3. Grievant’s Unemployment Compensation Claim


And Her Second Grievance

In addition to filing a worker’s compensation claim for her on-the-job

injuries, Grievant filed a claim for unemployment benefits, which led to her

second grievance. After she filed her unemployment comp claim, she

received from the State a determination of her eligibility, UX 14, which

listed as Claimant’s Separation Reason, “LACK OF WORK”.

Grievant responded to this determination with another grievance, UX

15, citing CBA Sections 5.2, Grievance Procedure; 18.1, Layoff & Recall;

and 19.19, Subcontracting, and stating:

On 5/16/01 I was notified per a notice from the unemployment office


that I was laid off due to “lack of work.” Previous to this, I had been
told that I was laid off because of my “inability to have skills
necessary to perform the job.”

The union contends that my job duties still exist at the work site and I
should not have been laid off. My work is currently being performed

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by persons outside the bargaining unit.

The relief requested was, “Return me to my full-time county position when I

am physically able to return to work.”

At the arbitration hearing, the County employee who handles all

unemployment compensation claims filed against the County explained that

UX 14 is a computer-generated form which automatically gives “LACK OF

WORK” as the reason for termination of employment in all uncontested

cases. Thus, the State form involved no human judgment and merely

reflected the fact that there was no reason to deny Grievant’s claim for

unemployment benefits.

The truth behind Grievant’s second grievance illustrates the lack of

objectivity with which she has approached the loss of her job. Following

9/11 and the decline in the national economy, State revenues fell, the

Governor issued Executive Order 2001-09 decreeing State-wide budget cuts

which negatively impacted the Health Department, leading to still more

layoffs. The County cannot be faulted for responding to very real financial

problems, both before and after Grievant’s layoff. In light of the fiscal

realities facing the County, it would be irresponsible for the arbitrator to

order Grievant’s reinstatement, even if she were physically able to return to

work.

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5.0. What Happened To Grievant’s Job

Assuming, arguendo, that Grievant is correct that her job still exists,

at least in the sense that the tasks which she performed still are being

performed by someone, it is instructive to understand who now performs

those tasks. First and foremost, the County’s workforce is far more skilled in

computer operations than when Grievant began her job as an MIS

technician. Simply stated, today, County employees are sufficiently skilled

that they do not need Grievant’s assistance so much anymore. They or their

supervisors now understand enough about computers to solve many routine

problems which formerly required Grievant’s assistance.

Secondly, much of the loading of software which Grievant formerly

handled is now done by vendors from whom computer equipment is

purchased; i.e., the software comes preloaded. Vendors may even install

hardware themselves. Thirdly, the Health Department’s MIS staff has been

upgraded with a Database Administrator with a Master of Science degree in

information technology. It is to be expected that more qualified personnel

will perform more efficiently. Finally, some of Grievant’s responsibilities

are being handled by the County’s centralized Information Technology

Department.

When Grievant was first hired, much of her time was devoted to a

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substance abuse reporting program, for which the State subsidized her

position. In 1998, the substance abuse program was transferred out of the

Health Department’s jurisdiction. With that program went funding for

Grievant’s job. Thus, the nature of and need for the MIS tech position

changed over the years.

It is undisputed that the Health Department’s MIS group has been

operating with only 3 employees since Grievant’s layoff, instead of the 4

employed when she was there. As a result, the recall provisions of the CBA

could not possibly have been violated. Nothing said here is meant to

trivialize Grievant’s job or disparage her skills, but there are sound reasons

for downsizing the Health Department’s MIS group, aside from the

Department’s legitimate need to free up funds to hire new sanitarians.

6.0. Grievant’s Claims Of Sex And Age Discrimination

Grievant alleges that her sex and age were factors in her layoff, but, as

noted at the outset, the arbitrator has absolutely no authority whatsoever to

address those claims. Despite her contention that Mr. Anstey wanted to get

rid of her, Barbara Terry testified that the administrative decision to layoff

Grievant was hers, subject to approval by County Commissioners. A mere

desire to layoff an employee does not appear to be actionable under the

CBA; at least Grievant points to no provision which would support such a

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claim.

Grievant complains that she was denied training but points to no

provision of the CBA which requires that it be provided, especially not that

of the expensive type which she requested, UX 17. Although she applied for

other jobs with the County, she was not considered the most qualified

applicant. She admits that she did not pursue educational advancement on

her own. Her former supervisor, whom she called as a witness, obtained an

MBA following termination of his employment with the County under

circumstances not dissimilar to Grievant’s layoff. The Deputy Director felt

herself insufficiently valued and obtained other employment. The arbitrator

cannot help but feel that, if Grievant’s layoff had been handled more

tactfully, it never would have reached arbitration, as her objections appear

more subjective than objective.

7.0. Grievant’s Allegation Of Anti-Union Bias

Grievant alleges that her layoff is part of a management effort to

weaken the Union but again points to no provision of the CBA which has

been violated. Moreover, the facts belie such a contention. While it is true

that Grievant’s layoff eliminated one Union position in the Health

Department’s MIS group, it created two others for sanitarians. Under CBA

Section 1.2, the seasonal sanitarians were not members of the Union. When

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their seasonal jobs were combined to create a full-time position, that new

full-time position fell under the CBA. Similarly, when the second full-time

sanitarian was hired, the position was a Union job. The third one proposed to

be hired during the next fiscal year likewise will be in the Union.

In the wake of the State’s financial crisis, two Union jobs were lost, as

was one Teamster job, but these subsequent events are not really part of the

instant grievances. With the relevant facts showing a net gain in Union jobs

and no violation of the CBA, the arbitrator can do nothing but deny the

grievances. In so doing, he subscribes to the reasoning of Winona County,

115 LA 257, 264 (Bard Arb 2001):

The arbitrator finds that the County was within its managerial
rights in eliminating the job position of Jail Administrator. The
arbitrator finds that the County has established by a fair
preponderance of the evidence that its decision was motivated by a
real desire to save money for the County. This is a legitimate
governmental goal even in the absence of a budgetary crisis.
Furthermore, it is not a legitimate exercise of arbitral power to second
guess County Boards on such decisions in the absence of very clear
evidence that the act was a pretext to terminate an employee without
just cause in violation of a Labor Agreement.

Public Sector arbitrators are not in the business of micro-


managing the affairs of governments and making independent
decisions on the wisdom or efficacy of their decisions so long as the
decision was within their legal powers. Here the County Board made a
budget driven decision to eliminate a job position. The evidence that
the Sheriff and Administrator who recommended the action to the
Board had personal animus toward the grievant was inconclusive.
Under theses circumstances it is really not relevant as to whether there
might have been better ways to save money or not. The arbitrator

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holds that the elimination of the position of the Jail Administrator was
well within the legitimate managerial powers of Winona County.
(Emphasis in original.)

8.0. Award

For all the foregoing reasons, the grievances are DENIED.

Dated March 29, 2002


_____________________________
E. Frank Cornelius, Arbitrator

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