Title: Fergus County, Montana and Montana Public
IN THE MATTER OF FACT FINDING
MONTANA PUBLIC EMPLOYEES )
FINDINGS OF FACT
FOR THE UNION:
FOR THE EMPLOYER:
RICHARD L. LARSEN
RICHARD LARSEN & ASSOCIATES, INC.
P. O. BOX 5608
HELENA, MT 59604
BILLINGS, MT 59102
The Montana Public Employees Association (the union) and Fergus County,
Montana (the employer), began negotiations in July of 1996 for a successor
agreement to their 1995 collective bargaining agreement, which expired June 30,
1996. Attempts at settlement during
negotiations and during mediation were unsuccessful.
The Montana Board of Personnel Appeals was petitioned to initiate fact
finding pursuant to ARM 25.26.697. A
fact finding hearing was held on May 30, 1997.
An opportunity to file post-hearing briefs was extended to the parties.
The parties agreed at hearing that the only issue before the fact finder
is wages. Specifically, the parties
agreed that the focus of their dispute is whether the employer’s wage increase
proposal amounted to three percent.
THE UNION, SUMMARIZED
The union contends that the employer formulated a three percent pay
increase for its employees, including bargaining unit employees represented by
the union. Since conveying the
increase to the union in the form of a proposal, the employer has rejected all
proposals from the
union that amount to a three-percent overall increase
for employees it represents. The
union agreed to accept the three-percent increase in pay and devised a proposal
to implement it, but the employer refused to accept it.
The wage issue is somewhat complicated because deputy sheriffs are
entitled, by statute to longevity increases.
The union maintains that the purpose of the fact finding process, in the
instant case, is not to examine economic data, which is usually offered in fact
finding proceedings, but to decide what happened during negotiations and come to
a fair determination on the wage question.
The parties are beyond the rationale-for-position stage in their
bargaining. They have made
proposals and counter proposals. The
union accepted the employer’s last and best offer of three-percent, came up
with a scheme to implement it, which saved the employer money as compared to the
employer’s offer, but the employer refused the union’s offer. None of the proposals
subsequently made by the employer amount to three-percent because
longevity is not calculated from July 1, 1996, but rather on an employee’s
anniversary date. The use of any
anniversary date beyond July 1st causes the gross percentage increase
to be less than the three-percent.
The employer contends that the Fergus County Board of Commissioners made
a priority of giving an overall three-percent wage increase to all its
employees, including those employees represented
by the union. The employer offered
a total of three-percent to the union on the same basis as other employees.
The longevity increases of bargaining unit employees is an annual and
ongoing expense amounting to one percent of salary.
Despite asking the union for assistance with the longevity problem when
the employer made its proposed three-percent increase in wages, the union
declined. The employer then made
The employer examined the union’s proffered model to implement a wage
increase for its bargaining unit members and found it to be the first clear
three-percent proposal made two months after the employer made its initial
proposal on August 5th. The
model was rejected because the percentages proposed would continue to be at a
higher base rate when the new fiscal year began.
Such higher base was not acceptable to the employer.
The union did not accept the initial three-percent wage package offered
by the employer. It was not
accepted by the union until October. The
union’s model which made increases effective October 1, 1996, was not
submitted to the employer until after October 4th, two months after
The title of the union’s model indicates it is to be retroactive to
October 1, 1996. It shows total
cost for both the union’s and employer’s plans and shows the employer’s
plan to cost $247.00 more than the union’s plan.
If the model does, in fact, reflect three-percent, then the employer
offered initially, and has continued to offer, three-percent overall to the
union’s bargaining unit. If the
employer’s proposal was greater than the union’s three-percent proposal with
a union effective date of October 1st, then it surely reflects a
three-percent increase effective July 1st.
Although the commissioners could not testify to specific dollar amounts
calculated for the bargaining unit, they did allocate specific amounts in the
budget and identified those amounts by department.
The budget was adopted prior to the completion of negotiations and showed
budgeted amounts larger than the three-percent in the salary and wage account to
assure funds were available for overtime, special assignments and part-time
Based on the evidence on the record in this matter, including the sworn
testimony of witnesses at the hearing, and pursuant to ARM 24.26.697, I make the
following findings of fact.
The union’s bargaining unit comprises all employees of the Fergus
County Sheriff’s Department, including deputies, detention officers, cooks,
janitors, communications officers, civil officers and clerical workers.
Under past collective bargaining agreements deputies received either 90
percent, 87 percent or 80 percent of the sheriff’s salary depending on the
number of years deputy had in service. The
80 percent amount stated in the 1995 agreement was less then the minimum amount
set forth in the state law. It was
subsequently changed to 85 percent when the mistake was discovered.
The amount is not at issue here. Deputies
receive a one-percent longevity increase by statute.
Non-deputies, i.e., all other bargaining unit employees, have
traditionally received wage adjustments based on the Sheriff’s wage
adjustment. Historically, all base
wages of employees in the Sheriff’s office have been tied to the percentage
increase received by the Sheriff on his base wage, as determined by the
During the 1995 contract negotiations, the parties bargained deputies’
pay based on the formula in the extant agreement.
In July of 1996, the employer made a proposal that, on a percentage
formula, was less than what had been in the expired agreement. Bargaining unit employees became upset and refused to yield
to the change. On August 5, 1996,
the employer made a written proposal to the union.
It noted that the cost of living adjustment for the sheriff was
three-percent, that the maximum increase to employees could only be
three-percent, and that a problem arose because of the one-percent longevity
increase deputies were to receive. The
proposal also set forth a two percent increase for non-deputies, who would also
get a one percent longevity increase.
The union made a counter proposal on August 5th that amounted
to a three-percent increase plus longevity.
Later on, the union representative became convinced that the employer was
not going to offer more than three-percent in gross dollars.
Because the bargaining unit employees had learned the sheriff was going
to get a three-percent increase in base pay plus a longevity increase making his
total increase greater than three-percent, they became upset when told they
would not get more than three-percent overall.
Later in the day on August 5th, the employer made another
proposal at 1:00 p.m. entitling it “Last, Best and Final”.
The proposal showed deputies were to receive 80 (later changed to 85), 86
or 89 percent of the sheriff’s salary, non-deputies were to receive a
two-percent increase plus a one-percent longevity increase.
The longevity increase, however, was to be calculated from an employees
anniversary date. Since calculating
longevity from the anniversary date rather than July 1st, meant the
proposal was less than three-percent, the union rejected the proposal.
The union and employer exchanged proposals and counter proposals during a
mediation session on August 21st.
Settlement was not reached. The
employer’s negotiator told the union’s negotiator he should come back with a
proposal that equaled a three-percent overall increase.
The union negotiator told the employer negotiator the union accepted the
The union negotiator prepared a proposal in September that reflected a
three-percent overall increase for bargaining unit employees.
It showed deputies receiving 85, 86 and 89 percent of the sheriff’s
salary depending on their years of service.
The proposal was for all employees to receive a three-percent increase on
their base salary with an effective date of October 1, 1996.
It made longevity effective on the employee’s anniversary date.
The total cost of the union’s plan was $234,982.56, which was $247.00
less than the three-percent overall plan the employer had proposed at first.
The union negotiator conveyed the proposal to the employer’s negotiator
through the mediator.
The employer reviewed the union’s proposal in October and rejected it.
It increased the base by too great an amount and the employer felt that
would not be fair to other county employees.
When the commissioners were preparing for negotiations, their objective
was to give bargaining unit employees an overall three-percent increase in
salary. Since they received one
percent in longevity, the commissioners believed they should get a two percent
increase in base pay making a total of three-percent.
The employer’s negotiator told the union’s negotiator they could
break down the three-percent increase any way they wanted. No one involved with the employer’s negotiations calculated
what the total cost of a three-percent raise to the bargaining unit would be.
Along with its post-hearing brief, the employer forwarded copies of the
proposal the parties exchanged on June 4, 1997, after the hearing. I have disregarded those proposals for the reason that the
union has had no opportunity to comment on them.
Although fact finding hearings are not bound by formal legal rules of
evidence, basic fairness requires at least a minimal opportunity to respond to
Pursuant to ARM 24.26.697(5), I recommend that the employer accept the
wage proposal the union offered as Exhibit A4 at the hearing.
It was offered to the employer sometime in October after the employer
representative asked that the union come up with a proposal that would reflect a
three-percent overall increase for bargaining unit employees.
The union’s proposal does just that.
In fact, it comes within one-tenth of one percent of being the exact
amount the employer offered on August 5th.
Out of a total cost of over $200,000, the difference in dollars is
insignificant. The employer’s
wage increase proposed to the union on August 5, 1996 was three-percent overall
and the union formulated a plan to implement that amount.
The employer’s objection to increasing the base pay of bargaining unit
employees disproportionally compared to other employees’ base pay is
understandable. However, the amount
of difference between the employer’s increase to the base and the union’s is
relatively small, about one percent. Such
an amount is too small to serve to hold up settlement of the contract. Moreover, when the employer’s representative told the union
representative to come up with a plan that fit the employer’s three-percent
maximum increase, no specifications were identified as to how the money could be
allocated. The union’s approach
is one that complies with the employer’s request and it is not unreasonable.
Since the parties specifically limited my involvement in their dispute to
the issue of wages, I have not considered other issues.
It is my understanding all language issues have been agreed to in
In summary, I find that the union’s proposal entered in evidence as
Exhibit A4 should be accepted as a settlement of the wage issue by the employer
because it is a reasonable way to implement the three-percent overall increase
proposed by the employer.
I request that the Board of Personnel Appeals make this report available
to the public five days after the parties have been served with my findings.
Dated this ____day of July 1997.
Jack H. Calhoun