and
Police Officers Labor Council (“Union”) and steward under the collective
bargaining agreement between the parties (§ 2.0(a)), which was received into
evidence as JX 1 (“CBA”). Grievant, with the rank of lieutenant, had been the
commander of the old County jail. However, shortly after the new jail was
opened in early 2005, the Sheriff appointed Captain Jack Welsh (“Captain”),
also a Union member (CBA § 1.0), to head the new facility, despite’s Grievant’s
efforts in planning and opening it. Initially, Grievant retained his rank of
The County was under pressure from the Michigan Department of Corrections
to hire 3 additional corrections officers for the jail. Further impacting budget
Union to switch operations from the standard three, 8-hour shifts to two, 12-
hour shifts, a change which created a need to fill a fourth sergeant slot at the jail,
a position which was being filled temporarily by a lower-ranking officer (JX 2).
2
The Sheriff proposed to the Board that 3 correctional officers and a fourth
sergeant be hired for the jail. He also proposed to retain the Captain and the
staff at the jail would consist of the Captain, Grievant at the lieutenant level, and
4 sergeants.
agreeing that the correctional officers and a fourth sergeant were required, felt
that only one commander was needed to run the jail. He proposed that the
Sheriff, and 4 sergeants. This group of 5 would be the same size as the existing
2005, the Board voted 8-1 in favor of the Commissioner’s budget proposal.
Following the Board’s vote, the Sheriff wanted the Captain to run the jail
until the Captain retired, so he selected the Captain as the sole commander. The
Sheriff confirmed the Board’s action and his selection in a memo to the Union,
dated December 15, 2005, re: The Elimination of the Jail Lieutenant’s Position:
On December 16, 2005, the Captain sent Grievant a memo which stated
in pertinent part:
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Starting January 1, 2006, you will be the Shift Sergeant of Platoon #4.
Your schedule is attached. The first pay period will result in your
working 88 hours. … Bid sheets will be coming out shortly and you will
be able to bid with the other Sergeant’s for the next bid which starts
February 5, 2006. UX 2.
alleged:
Lt. James Craig was given notice on 12/16/05 that he will be a shift
sergeant on platoon #4 commencing on January 1, 2006. There was no
notice giving the reason for such a “demotion” and this action was done
without just cause. JX 2.
Lt. James Craig should be allowed to remain at his current rank and
position. “Just cause” and “due process” shall apply in the event that his
demotion is related to a disciplinary action. Notice shall be given to Lt.
James Craig in the event that the demotion is due to the layoff provisions
of the collective bargaining agreement. Id.
The Sheriff denied the first grievance, No. 05-293, on December 22,
4
On December 21, 2006, Grievant sent the Sheriff a memo re Elimination
As per the contract I would like to request, as the Chief Union Steward
for the Police Officer’s Labor Council having super seniority, to be able
to bump to the Dispatch Supervisor’s position. Thank you. EX 1.
When Grievant’s request to bump was denied, the Union filed a second
certified police officer. Grievant had been told that the Dispatch Supervisor was
descriptions for positions within the bargaining unit. When the Undersheriff was
gathering the job descriptions in response to Grievant’s request, she noticed that
the certification requirement had been omitted from the Dispatch Supervisor’s
5
job description (EX 2), so she added it, “M.C.O.L.E.S. [Michigan Commission
informed.
On January 13, 2006, the Union wrote the Sheriff a letter re Grievance
#05-295 (the second grievance), yet addressed the initial grievance, No. 05-293,
Information has come to the Union that the demotion of Jim Craig from
Lieutenant to Sergeant is the result of discipline and not restructuring as
the County has led the Union to believe. Given this information the
Union would like to amend the original grievance.
The Union respectfully requests that Jim Craig be returned to the rank of
Lt. and that no loss of pay or benefits occur because of this wrongful
demotion. JX 2.
The Sheriff replied in a letter dated January 17, 2006, which did not
This was not due to a disciplinary action. I refer you to the other
responses on this grievance.
6
By letter dated January 27, 2006, re #05-293/295, the Union demanded
arbitration:
The Union has closely monitored this situation since there was talk of
eliminating Craig’s position in August of 2005 because of his alleged
poor work performance.
Section 4.0 Employers’ Rights. It is hereby agreed that the customary and
usual rights, powers, functions, and authority of management are vested in the
Office of the Sheriff of Lenawee County and the Lenawee County Board of
Commissioners. These rights include, but are not limited to, those provided by
statute or law along with the right to adopt, modify, or alter its budget; to direct,
hire, promote, layoff, transfer, assign, and retain employees in positions within
Lenawee County; and also to suspend, investigate, demote, discharge for just
cause, or take such other disciplinary action for just cause which is necessary to
maintain the efficient administration of the County. It is also agreed that the
7
Sheriff has the right to determine the method, means, and personnel, employees
or otherwise, by which the business of the Office of the Sheriff of Lenawee
County shall be conducted and to take whatever action is necessary to carry out
the duties and obligations of the County to the taxpayers thereof. The Sheriff
shall also have the power to make and enforce reasonable rules and regulations
relating to personnel policies, procedures, and working conditions which are
consistent with the express terms of this Agreement.
Section 6.0 Just Cause. The Sheriff shall not discharge or discipline a
nonprobationary employee without just cause. Should a nonprobationary
employee who has been discharged or given a disciplinary suspension consider
such discipline to be improper, a written grievance shall, within five (5) working
days after the notice of discharge or disciplinary action is given to the affected
employee, be filed at Step 2 of the Grievance Procedure. All grievances relating
to the discharge or disciplinary suspension of a nonprobationary employee must
be filed within the time limits contained in this Section. Any such grievance
which is not presented within these time limits shall be considered abandoned
and no appeal shall be allowed. All other disciplinary grievances shall follow
the normal Grievance Procedure.
Section 8.3 Super-Seniority. For the period during which he holds such office,
the Steward shall be granted super-seniority for purposes of layoffs and recall
only, providing he has the ability and the qualification to perform the remaining
required work.
Section 9.0 Layoffs. When the work force is reduced, the first employees to be
laid off from the bargaining unit covered by this Agreement within the
classifications affected shall be probationary employees. Thereafter, the first
employees to be laid off in the affected classification shall be those employees
with the least amount of seniority in such classification, provided, however, the
senior employees retained have the present qualifications and abilities to
efficiently perform the remaining required work. A nonprobationary employee
laid off from his classification may exercise his seniority with the Office of the
Sheriff of Lenawee County to displace an employee with less seniority in a
lower-rated classification within the bargaining unit covered by this Agreement
provided the employee exercising this right has the present qualifications and
ability to efficiently perform the work required and, provided further, the senior
employee exercising this displacement right will be paid the salary of the lower-
rated classification at the same progression Step he currently holds.
8
Other sections of the CBA are cited as needed.
that the qualifications for Dispatch Supervisor were changed to prevent Grievant
from qualifying for the position and bumping the incumbent. The Union urges
that Grievant be restored to the rank of lieutenant, with lost wages and benefits.
was the result of the Board’s budgetary decision not to fund two command
positions and the Sheriff’s selection of the Captain as the sole jail commander.
Grievant has continued his Union duties uninterrupted. He is not qualified for
The qualifications for that position were not changed; rather, a typographical
omission occurred when the job description was typed. The Sheriff urges that
IV. Discussion
This case is similar to UAW Local 2600 and Kent County [Michigan],
9
105 LRP 50250 (Arb 2002), in which the County eliminated a management
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.
10
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 holds that
the elimination of the position of the Jail Administrator was well
within the legitimate managerial powers of Winona County.
(Emphasis in original.)
In the instant case, the Commissioner testified that the Board prepares
its budget according to the positions which must be filled and the cost of
filling those positions. The 3 new corrections officers whom the County was
forced to hire cost about $150,000, not including fringe benefits. The Board
instead keeping the jail’s management staff at 5, the County saved between
The Commissioner did not propose getting rid of Grievant, and the
selected the Captain as the sole jail commander, as the Board is not involved
about which the arbitrator can and should do nothing. The Union’s
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existent budget constraints and savings” (Union brief @ 4), ignores the
prove that these actions were taken to get him. Thus, grievance #05-293
must be denied.
IV.B. Super-Seniority
6th ed 2003) @ 249. In this case, Grievant himself testified that his
(CBA § 2.0(a)) has not been called upon to perform a single function thus
positions of the parties regarding the issue of layoff. At the hearing, Grievant
testified that he was not laid off. The arbitrator is quite certain of this
because he not only made a note of the testimony but also marked it with an
asterisk. The point is pivotal because if, as Grievant himself testified, he was
12
not laid off, then CBA § 8.3 is inapplicable, and Grievant has no super-
Fortunately for the arbitrator, he need only puzzle over these curiously
opposing perspectives and not resolve any conflict, as there are other solid
grounds for decision. Even if CBA § 8.3 were applicable, CBA § 9 allows
salient point on which the Union’s brief is silent. Contrary to the plain
13
simply is no basis for Grievant to bump. Thus, grievance #05-295 must be
denied also.
Two other issues arose at the hearing, which merit discussion. The
Arbitration (BNA 2nd ed 1987) @ 132; Elkouri & Elkouri, How Arbitration
the Captain said to him during a telephone conversation. The objection was,
what was said; its truth or falsity was not then at issue. A witness may testify
that B told him that C said that D did, etc., so long as the purpose is simply
to establish what B said. It may happen that everything B said was incorrect,
even knowingly false, but the witness still may testify as to what that was. In
14
generally is not received. Elkouri & Elkouri, How Arbitration Works
(BNA 2nd ed 1987) @ 318-321. The Undersheriff testified that in 2004, new
job descriptions were prepared from those done in 1996-1997. She further
testified that Grievant himself was involved in the process. Because the
had the draft of the Dispatch Supervisor’s job description, from which the
certification requirement had been omitted in typing. She stated that she did
not.
exhibit were being made, the Undersheriff discovered that the draft literally
had been in a stack of papers which she had with her when she testified. The
Sheriff’s counsel offered it, but Union counsel objected that the hearing was
over, and the arbitrator sustained the objection. Newly discovered evidence
usually requires a showing of due diligence in searching for it; cf. FRCP
circumstances.
15
Supervisor’s job description, it is unnecessary to consider additional
evidence. Indeed, he imagines that the Sheriff, the Board, and the citizens of
do not meet the new standards may be terminated. Ikner and Baldwin
V. Award
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