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Title: Country View Assisted Living Center and Ohio Council 8
Date: July 10, 2001
Arbitrator: 
N. Eugene Brundige
Citation: 2001 NAC 143

OPINION AND AWARD

In the matter of Arbitration

Between

Ohio Council 8, American Federation of State County and Municipal Employees, AFL-CIO,

And

The Country View Assisted Living Center

Regarding

Case Number 01-05123
(Evelyn Moore)

 

APPEARANCES:
FOR THE EMPLOYER
Mark A. Fishel, Advocate  
Betty Bell, Administrator
Shirley Glasgow



FOR THE UNION:
Barry B. Bolin, Advocate
Tammy Carsey, AFSCME Staff
Gary Arnold, AFSCME Staff (observer)
Evelyn Moore, Grievant
Arleta Johnson, President & witness
Betty Mirling, witness
Delores Cowden, S.T.N.A. Hospital Aide                       

            An arbitration hearing was conducted May 10, 2001 at the Guernsey County Courthouse Annex, Cambridge Ohio. The parties agreed that the issue before the Arbitrator is: 

          “Did the Employer violate the Collective Bargaining Agreement when it denied grievant the job vacancy for S.T.N.A/ Hospital Aide?  If so, what shall the remedy be?

            The parties submitted the Collective Bargaining Agreement and the grievance trail as jointly stipulated documents.   The respective parties offered testimony and submitted documents to support their views of the case.  All materials were reviewed and considered by the arbitrator in reaching this decision.

          Both parties were given full opportunity to examine and cross-examine witnesses, pose arguments and present their respective cases.  Both sides did so professionally and competently.

          The parties agreed to submit post-hearing briefs on or by June 22, 2001.  Briefs were timely received by the arbitrator and copies submitted to the other party.

          In that this grievance deals with a contract interpretation matter, the union assumed the burden of proof and presented its case first.

The relevant contract sections are:

Section 22.1The parties agree that all appointments to positions covered by this agreement with the exception of original appointments shall be filled in accordance with this Article.

Section 22.3 Employees within the Agency will have the first opportunity to fill such vacant positions….

Section 22.4 Vacancies will be awarded to an employee applicant in the following order of selection and pursuant to the following criteria:

A.    First - as a shift transfer within the same classification to an employee applicant who possesses the greatest classification seniority.

B.    Second - to an employee applicant who possesses the minimum qualifications and has the greatest bargaining unit seniority.

Section 22.5 The Employer will make every effort to promote senior employees.  An employee who is awarded a promotional vacancy will be given a ninety (90) calendar day trial period and adequate supervision and training to enable the employee to qualify for the position on a permanent basis.  If the employee fails to satisfactorily perform the duties of the position or opts to return to their prior classification, he shall be returned to his former position and pay rate any time prior to the ninety-first (91") calendar day in the position; and the vacant position will then be re-posted for bid.”

“ARTICLE 6                   MANAGEMENT RIGHTS

Section 6.1      Nothing in this Agreement shall be construed as delegating to others the authority conferred by law upon the Employer.

Section 6.2      The Union recognizes and agrees that, except as specifically limited by a provision of this Agreement, all rights to manage, direct, or supervise the operations of the Employer and all of the employees are vested solely and exclusively with the Employer and/or the Employer's designated representative.

Section 6.3      The Employer's authority and responsibility includes, but is not limited to, the following:

1.     Manage and direct its employees, including the right to select, hire, promote, retain, transfer, assign, schedule, evaluate, lay off and recall or to counsel, reprimand, suspend, demote, discharge or otherwise discipline for just cause;
2.      Determine matters of inherent managerial policy which include, but are not limited to, areas of discretion or policy such as the functions and programs of the public employer, standards of services, its overall budget, utilization of technology, and organizational structure;
3.      Make any and all rules and regulations and to otherwise exercise the prerogatives of management;
4.      Maintain and improve the efficiency and effectiveness of governmental operations;
5.     Determine the overall methods, process, means, or personnel by which governmental operations are to be conducted;
6.     Determine work standards and the quality and quantity of work to be produced;
7.     Determine the necessity to schedule overtime and the a mount of overtime required;
8.     Determine the adequacy of the work force;
9.     Determine the overall mission of the employer as a unit of government and to take action to car.-y out the mission of the public employer as a governmental unit;
10.  Determine the starting time, quitting time, shift assignment and number of hours to be worked by its employees.

Election 6.4 The Union agrees that all of the functions, rights, powers, responsibilities, and authority of the Employer in regard to the operation of its work and business and the direction of its work force which the Employer has not specifically abridged, deleted, granted or modified by the express and specific written provisions of this Agreement are, and shall remain, exclusively those of the Employer and shall not be subject to the grievance procedure.”

Article 7, Section 7.2 (in part)

Step 3 Arbitration Ten (10) business days after receipt of the written notice to file under the arbitration procedure, the Administrator or her designee, and the staff representative or his/her authorized representative, may confer for the purpose of attempting to resolve the dispute and/or selecting an impartial arbitrator.  If no agreement is reached at this meeting, either party may send a letter requesting the Federal Mediation and Conciliation Service to submit the names of seven (7) arbitrators.

Upon receipt of the list, either, party may reject the entire list and a new list will be requested.  The Employer and the Union may each only exercise the option to reject a list once per grievance.  Within fourteen (14) calendar days of a list not rejected, each party, shall alternately strike names until one remains, the person selected being the arbitrator.  A date for arbitration shall be set as soon as possible in accordance with the wishes of the Employer, the Union and the availability of the arbitrator.

The arbitrator shall have no power or authority to add to, subtract from, or in any manner alter, the specific terms of this Agreement or to make any award requiring the commission of any act prohibited by law or to make any award that itself is contrary to law or violates any of the terms and conditions of this Agreement.  The arbitrator shall expressly confine himself to the precise issues submitted for arbitration and shall have no authority to determine any issue not submitted to him.  The arbitrator shall be without authority to recommend any right or relief on an alleged grievance occurring at any time other than the contract period in which such right originated.  The arbitrator shall not establish any new or different wage rates not negotiated as part of this Agreement…”

“Section 25, Miscellaneous

Section 25.2 Job Training.  The Employer shall continue to provide training to enable employees to be qualified for other classifications in the bargaining unit where operationally feasible.”

UNION POSITION:

          Tammy Carsey, AFSCME Staff Representative, testified that she had negotiated the first contract with The Country View facility.  Ms. Carsey testified about the concerns of employees to assure they would not be laid off due to lacking proper certification.  She also noted that the employees were very concerned about “contracting out.”

          Evelyn Moore, the grievant in this matter, testified that she was classified as a custodial worker.  She testified that as a custodian she does the same job almost at the S.T.N.A. Hospital Aide.  She testified that she had been with the employer for ten years.  A job posting indicated that there was an opening for an S.T.N.A. hospital aide posted on November 30, 2000.  Ms. Moore indicated that she bid on the job.  She testified that she desired to work day shift but that there was no increase in pay for the position.

          Ms. Moore testified that she requested S.T.N.A. training.  She reviewed the second page of the job description for S.T.N.A. Hospital Aide and indicated that she did all the duties listed except administering enemas.

          On cross-examination the grievant testified that she asked for the S.T.N.A. training on December 4, 2000 in writing.  She said she had asked for the training verbally earlier but that she had been told there were no funds.  She noted that other custodial workers had been given the training and had been made S.T.N.A. Hospital Aides. She stated that the Guernsey County home was a residential facility.  When it became Country View it changed to an assisted care facility.

          Arleta Johnson testified that she is a cook at County View and has worked there for twenty years.  She explained the layout of the facility as having women on one end, men on the other and the dining room in the middle.  She stated that Country View is a forty-bed facility.

          She also testified that she was president of the local union and was involved in the negotiations for the Collective Bargaining Agreement

          She explained the reasons the employees organized.   She stated the employees wanted to assure they would get job training and be able to bid on other jobs.  She said the employees felt insecure about the changes taking place.

            She noted that in two years 70% of the employees have S.T.N.A. certification.  She stated that her concern was that the administrator was bringing in intermittent employees before all the bargaining unit employees were trained and made S.T.N.A. certified.

          She noted that the intermittent employee who was hired already had her S.T.N.A. certification before coming to Country View.

Betty Mirling testified that she is a custodial worker who works the same shift as the grievant.  She described the work she does each day.  She noted that much of her work is direct care work with residents.

Ms. Mirling also testified that the custodial staff does the laundry, cleans the lounge area, and cleans three restrooms.  She stated that the custodians make the beds.

Ms. Mirling testified that she was on the union negotiating team and reiterated the concerns of the union members in bargaining.

Ms. Mirling testified that she had not been offered S.T.N.A. training but that she had requested, on the 20th. Of December, to receive the training if it became available.

On cross-examination Ms. Mirling reviewed a list of job duties she prepared for Betty Bell in 1999.  She said she did not recall why the list did not include direct patient care duties.

Delores Cowden testified that she is an S.T.N.A. Hospital Aide.  Prior to this classification she worked as a custodial worker on third shift.  She described her duties as including cleaning and some patient care.

She applied for a S.T.N.A. Hospital Aide position on day shift.  She was moved to day shift and had to attend school. Another custodial worker attended the school with her.  Delores testified she was also was on the negotiations team.  “When asked what duties were different between an S.T.N.A. hospital aide and a custodial worker” Delores responded that they were pretty much the same.

On cross-examination Ms. Cowden stated that she replaced a custodian or day shift.

The union argues that their chief concern in bargaining was to assure that their members receive training and positions of S.T.N.A. hospital aides.  These concerns deal directly with job security.  In the union view Evelyn Moore should have been given the job and sent to training after appointment to the job.

The union also argues that the job should have gone to a bargaining unit member.  Only if no bargaining unit member wanted the position should the employer be able to go outside to hire someone.

The union asserts that the position is a promotion even though the pay is the same.

The union also argues that Evelyn Moore has performed many of the duties of the position and therefore is qualified for it.

MANAGEMENT POSITION:

          Management called Shirley Glasgow.  She testified that she had been working as an intermittent worker at Country View when she applied for the S.T.N.A. Hospital Aide position.  She testified that she had been S.T.N.A. trained and certified while at a previous job.

          Management’s next witness was Betty Bell, Administrator.  She started July 30, 1999.  Betty has a BA in nursing.  She started in the field in 1959.  Guernsey County home first opened in 1847.  On January 1, 2000 the facility became an assisted care facility.  Previously it had been an independent living facility.

          She testified that this change allows the admission of residents with more acute medical needs.  She noted that the facility is not currently certified by Medicare, or Medicaid. 

          The plans are to become a Medicaid facility.  One of the things being done to work toward certification is to get all employees S.T.N.A. certified.

          She testified that there is a plan to offer training to all employees.  It will be done at the Barnesville Health Center, as classes are available.

          The Administrator testified that as early as 1999 she informed the staff of the change to assisted care and the need to get all staff S.T.N.A. certified.

          Ms. Bell testified that she started the training with day shift because the day shift staff have the most contact with residents.  She then went to second shift.

          Ms. Bell testified that it is her intention to send all custodial workers for the training.

          She further testified that the position in question was a replacement position.  The previous incumbent was Gail Workman who left Country View for a different job.  Ms. Workman was an S.T.N.A. Hospital Aide.

          Ms. Bell further testified that she changed the job description of the Custodial Worker to eliminate passing out morning medications and moved that duty to the day shift because she had a concern about untrained people preparing medications.

          On cross-examination Ms. Bell testified that she did not select the grievant because she believed she was not qualified for the position.

          Management argues that the contract has not been violated.  Article 22 section 3 sets the requirements for posting.  No one has asserted that posting was improperly done.

          It is further noted that Article 22.4 sets forth the order in which vacancies will be filled.  The person in the same classification with the most seniority will first be considered.  The grievant was not in the same classification and therefore this section does not apply.

          Management argues that the instant grievance does not involve a promotion because the pay rate for a custodian and a hospital aide are the same.

          Because no qualified bargaining unit employee applied for the position, management is free to consider and hire someone outside the bargaining unit.

DISCUSSION:

          The union position in this matter is easy to understand.  Once employees were informed of the plans to upgrade the facility in order to apply for Medicaid certification, they became concerned about job security.  They organized and bargained a collective bargaining agreement in the hope of improving their ability to maintain jobs with the facility.

          Discussion took place during bargaining about the need for training and the desire of the employees to promote internally.  There seems to be agreement about the external discussions regarding training.  The Administrator stated that she would continue to send employees for training so they could be upgraded to S.T.N.A. Hospital Aides.

          Then a vacancy occurs.  A S.T.N.A. Hospital Aide takes another job and the first shift position is posted.

          The internal applicant is in the classification of custodial worker.  She has not yet received the S.T.N.A. training.  She, and the union agree that she should be given the position and then sent for training.

          Management has available another person who is an intermittent employee, outside the bargaining unit, who is already qualified and highly recommended.   Management determines to appoint the intermittent employee.

          The job of an arbitrator is to review the contract and decide if any part of it has been violated.  The decision cannot be based upon unwritten understandings that various persons carried from the negotiations process.

          The testimony about the intent of the union in the bargaining process was informative and helped to put this situation into context but it cannot be controlling in determining the right decision in this matter.

          “Intent of the parties” can help an arbitrator only if the intent was bi-lateral (both parties agreed) and if the language it applies to is unclear or ambiguous.  In this case the written language is clear and stands on its own.

          Let me then turn to the various sections of the contract and analyze each to determine if there has been a contract violation.

          Section 22.3    The vacancy was properly posted.  No evidence was presented which would question any part of the process.  It states in this section that: “Employees within the agency will be given first opportunity to fill such vacant position.”  It appears to this arbitrator that the grievant was given “first opportunity.”  Even though the Administrator told the grievant that she did not appear to be qualified, she told her to put in her job bid.

          Section 22.4 determines the order for filling vacancies.  The first step is to transfer persons within the same classification.  Clearly the grievant was not in the same classification so part A does not apply.

          Part B states “Second – to an employee applicant who possesses the minimum qualifications and has the greatest bargaining unit seniority.”

          This case turns, in large part, on whether the grievant “possesses the minimum qualifications.”  I will deal with this question later in this discussion.

          Section 22.5 states: The Employer will make every effort to promote senior employees…”  Management would argue that this section does not apply because this position would not constitute a promotion.

          This arbitrator disagrees.  Increase pay is one criterion for determining if a position is a promotion, but it is not the only one.  The fact that S.T.N.A. Hospital Aide positions carries more status, more job security and can lead to a favorable shift assignment is more than enough to establish that this would be a promotion.  Even though it is a promotion management is obligated to award the job only if the applicant meets the minimum qualifications.

          The reference to a probationary period, the union would have us believe, is evidence to why management should have moved the grievant into the new position.  Management is required to offer the probationary period only to employees who possess the minimum qualifications.  Thus we return to the core question in this case.

          Section 25 contains requirements concerning job training.  It is a good faith statement regarding the ongoing commitment of the employer to provide training to enable employees to provide training to employees to permit them to qualify for other classifications.  The evidence presented would indicate that this section of the contract is being met.  Four persons have already been trained and Ms. Bell stated that it is her intention to provide all other employees, including the grievant, with this training.

          This section is qualified with the term “where operationally feasible.”

          We can only speculate regarding what might have happened if Barnesville Health Center had been offering S.T.N.A. training at the very time the vacancy was being filled.  In the instant grievance the administrator determined that since training was not being offered at the time of the request (December 4, 2000).  Thus it was not operationally feasible.

          The good news in this case is that it appears the training and conversion of employees from custodial workers to S.T.N.A. Hospital Aides is in the best interest of all parties.  The union and employees benefit from the increased job security and the employer can hasten the move toward Medicaid certification.

          Lets us turn then to the core issue of whether the grievant met the minimum qualifications.  There is not doubt that the grievant has some knowledge and performs some of the duties of the S.T.N.A. Hospital Aide but she lacks the one basic thing that the title of the job specification calls for.  She does not have the training necessary to be a State Tested Nursing Assistant.   If management had awarded the job to the grievant without the training they would have been violating the requirements of the job specification.  A specialist from the Ohio Department of Administrative Services would certainly have advised that the grievant did not meet the minimum qualifications to be placed in the job.

          Could the employer have transferred the grievant to first shift as a custodial worker, then sent her for training and then reclassified her to S.T.N.A. Hospital  Aide at a later date?  Probably so, but there is nothing in the Collective Bargaining Agreement which requires them to do so.  If there is no section of the agreement which requires management to take a specific position, then we turn to the Management Rights Article.  Here management has reserved the right to unilaterally make such decisions.

AWARD:

          Finding no violation of the Collective Bargaining Agreement, The grievance is denied.

Rendered this 10th. Day of July, 2001 at London, Ohio

___________________________
N. Eugene Brundige, Arbitrator

CERTIFICATE OF SERVICE

          The undersigned does hereby certify that a copy of the foregoing decision has been served upon Marc A. Fishel, 300 South Second Street, Columbus, Ohio, 43215 and Barry B. Bolin, 36 South Plains Road, The Plains, Ohio 45780 by regular U.S. mail, postage prepaid this 10th. Day of July 2001.

___________________________
N. Eugene Brundige, Arbitrator

 

 

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