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From 1986 until she was laid off in February of 2001, Grievant was
JX 1 (“CBA”).
areas, most notably food service sanitation. Although the audit report, EX 7,
lauded the Department for its food service inspection efforts, the report
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pertinent part:
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
♦ Childhood Lead
♦ Family Planning
♦ Hepatitis B
♦ Immunizations
♦ SIDS
♦ TB Control. EX 8.
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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
Anstey, the Health Department’s Director of Finance and MIS, for ideas.
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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.)
was prepared by Ms. Terry and Mr. Anstey for presentation to the Board of
Health.
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
information systems group has in fact operated with only three employees
since Grievant’s layoff, instead of the four employed during her tenure, UX
20.
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
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3.0. Pertinent Provisions From The Collective Bargaining Agreement
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.
(b) Notice. Employees who are indefinitely laid off shall receive
fourteen (14) calendar days’ advance notice … . …
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(e) Recall. …
Several observations about the CBA are worth noting. First, the
a “just cause” provision for discipline and discharge, Section 7.1, it contains
contends that her layoff was a pretext for discharge, so that the CBA’s just
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4.0. Grievant’s Complaints
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
The CBA provision cited was Section 17.17, Subcontracting [from the
and the remedy requested was, “Limit Mr. Schmidt’s duties to those duties
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discussion of this grievance has been delayed at the request of the
union.
The memo was copied to Debbra Mick, Chief Steward, Local 2600, among
others.
notes kept by the Chief Steward, UX 25, who was present at the meeting:
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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.)
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,
any way affected by his brief stay. His replacement, Tom Streelman, left as
been informed that her job probably would be eliminated, she fell and
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the Health Department. Mr. Anstey put her in a cab to be taken to a hospital
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.
injuries, Grievant filed a claim for unemployment benefits, which led to her
second grievance. After she filed her unemployment comp claim, she
15, citing CBA Sections 5.2, Grievance Procedure; 18.1, Layoff & Recall;
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.
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.
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
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
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
those tasks. First and foremost, the County’s workforce is far more skilled in
that they do not need Grievant’s assistance so much anymore. They or their
purchased; i.e., the software comes preloaded. Vendors may even install
hardware themselves. Thirdly, the Health Department’s MIS staff has been
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
Grievant’s job. Thus, the nature of and need for the MIS tech position
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
Grievant alleges that her sex and age were factors in her layoff, but, as
address those claims. Despite her contention that Mr. Anstey wanted to get
rid of her, Barbara Terry testified that the administrative decision to layoff
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claim.
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
cannot help but feel that, if Grievant’s layoff had been handled more
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
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
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.
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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
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