FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 06-53653

Grievant James M. Craig
POLICE OFFICERS LABOR COUNCIL,
Union,

and

SHERIFF OF LENAWEE COUNTY,

MICHIGAN, and
LENAWEE COUNTY
BOARD OF COMMISSIONERS,
Employer.
____________________________________/

OPINION OF THE ARBITRATOR

September 12, 2006

After a Hearing Held August 1, 2006

At the Old Courthouse in Adrian, Michigan

For the Union: For the Employer:

Thomas R. Zulch, Esq. David B. Gunsberg, Esq.

675 E Big Beaver Road, Suite 105 322 N Old Woodward Avenue
Troy, MI 48083 Birmingham, MI 48009
 I. Background

Grievant is employed as an officer by the Sheriff of Lenawee County,

Michigan (“Employer” or “Sheriff”). Grievant also is president of the local

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

lieutenant, as second in command to the Captain.

Budget deliberations for fiscal 2006 by the Lenawee County Board of

Commissioners (“Board”, also a party to the CBA) began in August of 2005.

The County was under pressure from the Michigan Department of Corrections

to hire 3 additional corrections officers for the jail. Further impacting budget

considerations was an agreement between the Sheriff’s Department and the

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

Grievant as jail commanders. Under the Sheriff’s proposal, the management

staff at the jail would consist of the Captain, Grievant at the lieutenant level, and

4 sergeants.

County commissioner James E. Van Doren (“Commissioner”), while

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

management staff be comprised of a single commander, to be selected by the

Sheriff, and 4 sergeants. This group of 5 would be the same size as the existing

group, consisting of the Captain, Grievant, and 3 sergeants. In November of

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:

After a long and careful deliberation, consultation with Jail employees,

advisement of legal counsel, in addition to other factors that I will not
elaborate on at this time. The Jail Administrator position will remain as
is. The Captain will be responsible for these duties. UX 1.

On December 16, 2005, the Captain sent Grievant a memo which stated

in pertinent part:

3
 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.

The Union reacted by filing an initial grievance, No. 05-293, in which it

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.

The Union went on to request:

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,

2005, by citing CBA Art 4.0, Management Responsibility, and explaining:

The Lenawee County Board of Commissioners has the right to modify or

alter its budget. They have taken our budget from two (2) Jail
Commanders to one (1) Jail Commander. The Sheriff also 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.

Lt. Craig will be the shift sergeant on platoon #4 commencing on January

1, 2006. This platoon has not had a sergeant; this position is currently
filled by a corrections officer, acting as a shift supervisor. JX 2.

4
 On December 21, 2006, Grievant sent the Sheriff a memo re Elimination

of Lieutenant’s Position, asking:

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.

The Sheriff responded that very same day:

Pursuant to Section 8.3 of the Labor Agreement between the Sheriff of

Lenawee County and the Lenawee County Board of Commissioners and
Police Officers Labor Council (supervisory Unit), your request to bump
the Dispatch Supervisor is denied. UX 3, emphasis in original.

When Grievant’s request to bump was denied, the Union filed a second

grievance, No. 05-295, alleging:

The aggrieved after being notified of a reduction in the work force

requested the opportunity to utilize super seniority to displace another
lieutenant. The request was denied. JX 2.

The Union further stated:

The aggrieved would like to displace the communications lieutenant. Id.

Although Grievant was a certified corrections officer, he was not a

certified police officer. Grievant had been told that the Dispatch Supervisor was

required to be a certified police officer, a qualification Grievant doubted, so he

filed a Freedom of Information Act request, seeking copies of all job

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

on Law Enforcement Standards] certified police officer”, and Grievant was so

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,

in the body of the letter:

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.

This demotion is a violation of Section 4.0 of the collective bargaining

agreement-employer’s rights. The Lenawee County Sheriff and the Board
of Commissioners can only “demote” an employee for just cause.

It is also a violation of Section 6.0 of the collective bargaining

agreement-discipline. The Sheriff shall not discharge or discipline a
nonprobationary employee without just cause.

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

contain a grievance number and stated only:

This was not due to a disciplinary action. I refer you to the other
responses on this grievance.

GRIEVANCE: Denied JX 2, emphasis in original.

6
 By letter dated January 27, 2006, re #05-293/295, the Union demanded

arbitration:

Please be advised that your answers to Jim Craig’s grievance in regards

to his demotion failed to resolve this matter.

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.

Since that time, a combination of public and private comments by

Lenawee County commissioners about Craig’s work performance,
comments by Sheriff’s Department management about Craig being too
young to be a Lt. and encouraging him not to vigorously defend a
grievant he represents and the changing of Department job descriptions to
prevent Craig from being assigned to that particular job gives the Union
great concern.

Therefore, the Union is moving this grievance to Arbitration. … JX 2.

A hearing was held on August 1, 2006, at the old courthouse in Adrian,

Michigan. Each party was represented by counsel. Briefs were mailed as

scheduled by September 8, 2006.

II. Relevant Provisions Of The Collective Bargaining Agreement

The principal provisions of the CBA are the following:

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.

III. The Positions Of The Parties

The Union contends that Grievant’s demotion to sergeant was

disciplinary in nature, so that just-cause principles should apply. The Union

alludes to an incident between Grievant and the Commissioner and to Board

discussions about Grievant’s work performance. The Union further contends

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.

The Sheriff counters that the loss of Grievant’s jail-commander position

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 position of Dispatch Supervisor because he is not a certified police officer.

The qualifications for that position were not changed; rather, a typographical

omission occurred when the job description was typed. The Sheriff urges that

both grievances be denied.

IV. Discussion

IV.A. The Rights Of County Government

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

information systems position in order to free up funds to fill more critical

positions. The arbitrator observed:

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 20.

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. …

Most pertinent to the instant case is the reasoning of Winona County,

115 LA 257, 264 (Bard Arb 2001), cited in Kent County:

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

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

was unwilling to fund 2 jail-commander positions. By refusing to do so and

instead keeping the jail’s management staff at 5, the County saved between

$70,000 and $80,000.

The Commissioner did not propose getting rid of Grievant, and the

Commissioner’s budget proposal was not directed at Grievant. The Sheriff

selected the Captain as the sole jail commander, as the Board is not involved

with particular personnel decisions. Grievant himself admitted that selection

of the commander was the Sheriff’s prerogative.

Under Kent County and Winona County, the Board’s budgetary

decision and the Sheriff’s selection were legitimate governmental functions,

about which the arbitrator can and should do nothing. The Union’s

suggestion, that “[t]he Commissioners are attempting to hide behind non-

11
existent budget constraints and savings” (Union brief @ 4), ignores the

increased cost of the new corrections officers. Grievant utterly failed to

prove that these actions were taken to get him. Thus, grievance #05-293

must be denied.

IV.B. Super-Seniority

Grievant’s appeal to super-seniority must be rejected for several

reasons. “[T]he underlying purpose of superseniority provisions is to

promote continuity of effective union representation by experienced

representatives … .” Elkouri & Elkouri, How Arbitration Works (ABA/BNA

6th ed 2003) @ 249. In this case, Grievant himself testified that his

representational activities have continued uninterrupted; indeed, his alternate

(CBA § 2.0(a)) has not been called upon to perform a single function thus

far. As a result, application of the super-seniority provision would be

inappropriate under the undisputed facts of this case.

The arbitrator is presented with a curious conflict between the

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-

seniority argument at all.

However, the Sheriff takes the opposite position:

The elimination of the lieutenant’s position in the jail … was not a

“disciplinary action” but was, in fact, a “layoff” due to elimination of
the lieutenant’s position by the Sheriff, a decision that Craig agrees
the Sheriff had the absolute right to make. Once the Sheriff decided to
eliminate the lieutenant position in the jail, the layoff provisions of the
collective bargaining agreement were properly invoked. Craig was
assigned to the fourth shift sergeant’s position. Under the collective
bargaining agreement, Craig was properly notified of a layoff. Under
Paragraph 9.2 of the Collective Bargaining Agreement, the employer
is to “attempt to give at least two weeks advance notice of layoffs to
affected employees”. Here, Craig was given two weeks notice, i.e. he
was notified on December 16, 2005 that the lieutenant position was
eliminated and that he was being assigned to a shift sergeant position
effective January 1, 2006. Thus Craig was given proper notice under
the CBA. Grievance 05-293 must be denied. Sheriff brief @ 5,
footnote omitted.

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

bumping to a lower classification, only, not within the same classification, a

salient point on which the Union’s brief is silent. Contrary to the plain

language of the CBA, Grievant seeks to bump within the lieutenant

classification (CBA § 16.0 & Appendix A), as the Dispatch Supervisor is a

lieutenant, too. Grievant further fails to satisfy § 9, because he is not

qualified for the Dispatch Supervisor position, as he is not certified. There

13
simply is no basis for Grievant to bump. Thus, grievance #05-295 must be

denied also.

IV.C. Intrusion Of The Hearsay Rule

Two other issues arose at the hearing, which merit discussion. The

first concerns the hearsay rule, which applies only to extra-hearing

statements which are offered as evidence of the matters asserted. 5

Wigmore, Evidence, §§ 1360 et seq.; Hill & Sinicropi, Evidence in

Arbitration (BNA 2nd ed 1987) @ 132; Elkouri & Elkouri, How Arbitration

Works (ABA/BNA 6th ed 2003) @ 366. If a statement is offered only as

evidence of what was said, then it is not hearsay.

At the hearing, objection was made to Grievant testifying as to what

the Captain said to him during a telephone conversation. The objection was,

of course, overruled, because the testimony was received only to establish

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

fact, the testimony might be used to impeach B’s credibility.

IV.D. Post-Hearing Evidence

A second issue involved evidence submitted after the hearing, which

14
generally is not received. Elkouri & Elkouri, How Arbitration Works

(ABA/BNA 6th ed 2003) @ 412; Hill & Sinicropi, Evidence in Arbitration

(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

testimony was somewhat confusing, the arbitrator specifically asked if she

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.

However, after the conclusion of the hearing, while copies of an

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

60(b)(2), MCR 2.612(C)(1)(b). That was singularly lacking under these

circumstances.

In the Sheriff’s brief, the tender is renewed and a copy of the

additional evidence is included. Because the arbitrator accepts the

Undersheriff’s testimony regarding the typing omission from the Dispatch

15
Supervisor’s job description, it is unnecessary to consider additional

evidence. Indeed, he imagines that the Sheriff, the Board, and the citizens of

Lenawee County want their police officers to be certified. Upgrading

qualification requirements is commonplace, and even good employees who

do not meet the new standards may be terminated. Ikner and Baldwin

County, Alabama, Board of Education, 06-1 ARB ¶ 3485 (Arb 2006).

V. Award

For all the foregoing reasons, the grievances are DENIED.

Dated: September 12, 2006 ________________________

E. Frank Cornelius, Arbitrator

16