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Title: Allegheny County and Local #1633
Date: June 21, 2004
Arbitrator: Lynn Wagner
Citation: 2004 NAC 135

IN THE MATTER OF INTEREST ARBITRATION

BETWEEN

ALLEGHENY COUNTY, MARYLAND

AND

AMERICAN FEDERAL OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES, LOCAL #1633

                        

Assigned:

June 4, 2004

 Hearing: 

June 11, 2004

Decision:  

June 21, 2004

Arbitration Panel:

                        G. Edward McLellan
                        Arbitrator for Allegheny County

                        James Bestpitch
                        Arbitrator for AFSCME

                        Lynn E. Wagner
                        Chair and Impartial Arbitrator

Appearances:

                        For Allegheny County:

                        Barry Levine, Esq.
                        Assistant County Attorney 

                        For AFSCME, Local #1633:

                        Francis J. Collins, Esq.

INTRODUCTION:

This is an interest arbitration between the American Federal of State, County & Municipal Employees (hereafter “AFSCME”) and Allegheny County, Maryland (hereafter “County”), conducted pursuant to Section 36.2 of the County Code.  The impartial Arbitrator and Chair of the Arbitration Panel (hereafter “Panel”) is Lynn E. Wagner, Esquire.  The AFSCME appointed Arbitrator is James Bestpitch, and the County appointed Arbitrator is G. Edward McLellan.

BACKGROUND:

For nearly 30 years, the County and AFSCME has successfully negotiated separate collective bargaining agreements (hereafter “contracts”) covering the County’s non-supervisory employees.  Local 1633 of AFSCME has represented bargaining units consisting of employees of the County’s transit system, nursing home and roads division.  Local 1521 of AFSCME has represented bargaining units consisting of employees of the emergency services and communications and animal control departments, sheriff’s patrol deputies and sheriff’s correctional deputies.  In 2003, there were separate contracts between the County and AFSCME for each of the seven bargaining units with identical June 30, 2003 termination dates.

During the months preceding the expiration of the contracts, the County and AFSCME entered into negotiations to renew each.  The County proposed that all seven contracts have substantially the same percentage increases in wage rates, the same benefits, other economic items and language (hereafter “pattern contracts”).  AFSCME agreed or acquiesced to the County’s pattern contract approach for six of the seven bargaining units.  For those contracts, AFSCME accepted the same across-the-board percentage increases in hourly wage rates (no increase in the first year, a 2.5% increase the second year, and the cost of living adjustment of the State Retirement and Pension System of Maryland (hereafter “SRPS”) for the third year), the co-pays under the existing County-wide health insurance plan and other monetary items, as well as new, common language for almost all non-economic items.

However, in negotiating for renewal of the contract for the bargaining unit consisting of the employees of the County’s roads division, AFSCME departed from the pattern contract approach and, instead, insisted upon much higher across-the-board wage rate increases, lower health insurance co-pays and that other monetary and language items remain essentially unchanged.

When the parties could not reach an agreement on the renewal of the contract by its June 30, 2003 expiration date, they agreed to extend the date through July 31, 2003.  During that time, they agreed on a few non-controversial language changes sought by the County, which are contained in attached Exhibit “A”, but still remained deadlocked on monetary items and the remaining language changes.

When the contract expired on July 31, 2003 without agreement on such terms and conditions, AFSCME requested interest arbitration under Section 36.2 of the County Code.  The County refused to proceed with such arbitration on the ground its own ordinance was unconstitutional or otherwise invalid under Maryland law.  AFSCME brought an action in the Circuit Court of Allegheny County to compel arbitration.  Some nine months later, the Court entered an order requiring the County to engage in interest arbitration pursuant to Section 36.2 with a June 20, 2004 deadline for entry of the award.

The arbitration hearing was held on June 11, 2004 at the County Building in Cumberland, Maryland. The County and AFSCME were given a full and fair opportunity to present testimony, documentary evidence and argument in support of their respective positions.  The Arbitrators deliberated in person on June 12, 2004 and by telephonic conferences on June 17 and 18, 2004, and issued their award on June 21, 2004 (June 20, 2004 was a Sunday).

PARTIES:

Allegheny County.  Allegheny County has a population of about 75,000 persons and is located in a rural, mountainous area of western Maryland.  Until the latter part of the 20th century, the County prospered due to a number of heavy industries and coal mining operations located there.  Almost all those companies and mines were unionized.  Under authority of its home rule charter, the County enacted a collective bargaining ordinance in 1974.  Because public employees in Maryland do not have the right to strike, the ordinance included the common provision requiring final and binding interest arbitration in the event of an impasse between it and a union representing its employees.

In the 1970s, AFSCME became the representative of most public employees in the Allegheny County area, including the County’s non-supervisory employees.  Unfortunately, AFSCME’s success in organizing such employees coincided with a dramatic downturn in the County’s economic conditions, causing almost all of the heavy industries and mines eventually to close.  Today, the County is one of the most economically depressed in Maryland.  As a result, it is highly dependent of financial aid received from the federal and state governments.  Over the last several years, the State of Maryland has substantially reduced the amount of funds provided to the County for roads and highways.  While the County had been receiving sufficient funds from the state to cover the budget of the roads division, such reduction has recently required the County to make up the shortfall from its budget.

Notwithstanding its depressed economy, the County and AFSCME successfully concluded separate collective bargaining agreements for all seven bargaining units until 2003, when they impassed on the new contract for the employees in the roads division bargaining unit.

AFSCME and the Bargaining Unit.  The bargaining unit consists of the non-supervisory employees of the County’s roads division.  When the most recent contract expired on July 31, 2003, there were over 60 employees actively working in the bargaining unit.  Between then and the interest arbitration hearing on June 11, 2004, the size of the unit has decreased by attrition to about 57 employees.

IMPASSE ISSUES:

The initial proposals of the Union and County are attached as composite Exhibit “B”.  As discussed above, the parties tentatively agreed to the changes contained in attached Exhibit “A” shortly before the expiration of the contract.  At the hearing, the Union tentatively agreed to a three-year contract, provided its terms and conditions are retroactive to August 1, 2003.

Otherwise, the parties remained impassed on all economic issues and a plethora of language items.  The number of impasse issues was multiplied exponentially by the County’s proposal to change almost every section of the contract in its effort to achieve a pattern contract almost identical to the ones it had negotiated with the other six AFSCME bargaining units, and by AFSCME’s refusal to agree to most of such changes after it had agreed to most of them in the six contracts for its other bargaining units.  In many instances, impasses existed on the language or items insisted upon by the County under which there had never been a problem in 30 years, and rejected by AFSCME when the meaning of such proposed language did not differ materially from that of the existing language.

Due to reasonable restraints on time and cost, this Award addresses only those impasse issues that would significantly affect the interests of the County and the AFSCME bargaining unit employees.  Except for any changes awarded on the following issues, the terms, conditions and language of the expired contract shall remain unchanged:

      Annual wage increases
      Health insurance 
      Payment for temporary upgrades
      Premium rates
      Vacations
      Clothing allowance
      Job descriptions
      Posting and filling of permanent vacancies
      Seniority
      Most favored nation clause
      Emergency Conditions
      Four-day 10-hour shift workweek
      Holidays and personal leave
      Retroactivity
      Term of Contract


ARBITRABILITY:

At the hearing, the County challenged the authority of the Panel to make an award on a number of the impassed issues on the ground they are not subject to arbitration under Section 36.2.  It contended that issues over fringe benefits and grievance resolution procedures were not “wages, hours and working conditions”.  The County’s position ignores the fact the words “working conditions” in Section 36.2 is a catch-all phrase.  Since wages and hours are indisputably working conditions, it would have been redundant for the County Commissioners to add the phrase “working conditions”, unless they intended to include all other conditions related to the employment of bargaining unit employees.

Non-wage benefits and grievance resolution procedures have been recognized as part and parcel of employee working conditions under collective bargaining agreements in the private sector since at least the enactment of the National Labor Relations Act in 1935, and in the public sector from the enactment of the earliest public employee relations laws.

Even if one were to agree that in a vacuum such matters are not “working conditions”, they became working conditions once the County agreed to include them in former contracts and/or made proposals to change rather than eliminate them during the negotiation leading to the current impasse.

Public employers may remove the authority of interest arbitration panels to resolve impasses over certain terms and conditions of employment by the inclusion of explicit exceptions in the statutes or ordinances.  But, the in absence of such an exception, the words of the empowering law will be given their ordinary meaning and application in the labor relations context and liberally construed in favor of arbitration.

Section 36.2 contains no language explicitly removing from the Panel’s jurisdiction any category of impasses over conditions affecting the employment of bargaining unit employees.  For the foregoing reasons, the Panel concludes it has jurisdiction under Section 36.2 to hear and make an award on all of the impasse issues.

DISCUSSION:

Unlike many interest arbitration provisions, Section 36.2 does not identify specific factors the Panel should weigh in reaching its decision on impassed issues.  However expressed, such factors are designed to require interest arbitrators to weigh the interest of the bargaining unit employees in being compensated and treated fairly, and the interest of public employer in maintaining an affordable and efficient workforce.

The party seeking to alter the provisions of an expiring or expired contract has the burden of showing as to each such issue by evidence presented at the hearing that its interests outweigh those of its counterpart.  In this case, AFSCME bears the burden of justifying an increase in wage rates and any other changes it insists be made in the provisions of the expired contract.  Similarly, the County has the burden of justifying the changes it exists upon.

To support the interests of bargaining unit employees in being compensated reasonably, unions ordinarily rely on comparisons of the base wage rates and cost of living increases paid by other employers for similar jobs.  Such data must be for closely comparable jobs of closely comparable employers.  To be material in this arbitration, comparison evidence must be for substantially similar roadworker jobs in counties or municipalities of substantially similar size and economic conditions.  To support its interest in maintaining an affordable and efficient workforce, employers ordinarily present data regarding their current financial condition and projections of such conditions over the term of the contract.

Many of the impasse issues in this case are due, in large part, to the County’s desire to achieve pattern contracts for all of the AFSCME bargaining units.[1]  The County has a legitimate interest in attempting to achieve and maintain pattern contracts for all of its bargaining units.  Pattern contracts discourage bargaining units from competing with, or seeking to outdo, each other.  Interest arbitration awards that ignore such problems can discourage voluntary agreements and encourage “leapfrogging” and other undesirable practices.  They also provide for less confusion and greater efficiency in contract administration for both parties.

Indeed, pattern agreements can benefit unions representing multiple bargaining units by maintaining and reducing dissention over significant differences in wages, benefits and employee rights.  Thus, it is not uncommon for unions to seek and maintain such contracts.

Achieving a pattern contract for the roads division bargaining unit became particularly important to the County, once AFSCME agreed to such contracts for its other six bargaining units.  For the County to agree to a greater percentage increase in wages, different employee contributions and co-pays under the health insurance plan and other, more favorable monetary provisions for the roads division employees, after it had persuaded AFSCME and the employees in six other bargaining units to agree to less generous pattern contracts, would have enraged such employees, created dissention among them and the roadworkers and seriously jeopardized the County’s ability to maintain pattern contracts in the future.

Given the recognized benefits of pattern contracts under circumstances where the parties negotiate separate contracts for multiple bargaining units, the County has, in most instances, shown sufficient justification for its position to switch the burden to AFSCME it would be inequitable to include similar terms and conditions in the contract for the roads division bargaining unit.  Careful consideration of the testimony, documentary evidence and the arguments of counsel presented at the hearing supports the following conclusions:

Annual Wage Increases.  AFSCME insists upon an across-the-board increase in hourly wage rates of 9% in each year of a three-year, retroactive contract.  It has categorized 3% of that increase as a cost of living adjustment and the remaining 6% as necessary to bring the base wage rates of bargaining unit employees up to the level of those of roadworkers employed by comparable counties and municipalities.  AFSCME has an unusually heavy burden of showing such an inequity exists in view of its agreement to most of the County’s proposals in the six contracts it negotiated for other non-supervisory employees.

The County insists upon the same adjustments granted to the employees on the other six AFSCME units – 0% in the first year, and cost of living adjustments of 2.5% in the second year, and the inflation adjustment of the SRPS in the third year.  In view of the recognized benefits of pattern contracts for all bargaining units, especially when the parties have agreed to such contracts for all other units, AFSCME has the burden of showing why agreement to the same wage increase would be uniquely inequitable for employees of the roads division bargaining unit.

AFSCME argued that such an inequity exists because the base wage rates of employees in the roads divisions are lower than those of roadworkers employed by comparable counties or municipalities.  To support the latter argument, it presented documentary evidence of the wage rates of roadworkers in collective bargaining agreements with other public employers in Maryland, Pennsylvania and New Jersey.  The County countered that none of such public employers were reasonably comparable to it in terms of size, location, cost of living and economic conditions.

AFSCME’s evidence purporting to show substandard base wage rates of the bargaining unit employees is insufficient to carry its burden, because none of such employers was reasonably comparable to the County.  It follows that the 6% across-the-board increase sought by AFSCME to improve the base wage rates of bargaining unit employees is unwarranted.

Nor has AFSCME carried its burden of showing a 3% cost of living adjustment each year is warranted.  Even the data it presented for larger, urban counties and municipalities fails to support a 3% cost of living adjustment.  Moreover, having agreed in the contracts for its six other bargaining units to no cost of living adjustment in the first year, 2.5% in the second year and to the SRPS adjustment in the third year, it is difficult for AFSCME credibly to contend the roadworkers, who reside in the same geographical area, should receive greater cost of living increases.

Health Insurance.  After it discontinued the plan that covered County employees under the preceding AFSCME contracts (which provided for a co-pay of five dollars for prescription drugs), BlueCross/BlueShield substituted a plan that contained higher co-pays.  Because of a dramatic increase in the cost of the new plan (even with the higher co-pays), the County insisted employees pick up four percent (4%) of the cost.  For its six other bargaining units, AFSCME agreed to the 4% contribution and the higher co-pays.  However, it would not agree to such change for the roads division bargaining unit.  Instead, AFSCME no only rejected the 4% employee contribution, but insisted the County agree to pay the roadworkers the difference between the higher co-pays under the new plan and the five-dollar co-pay that existed under the discontinued plan.

Given the benefits of pattern contracts, AFSCME presented insufficient evidence to demonstrate why it would be inequitable for employees in the roads division bargaining unit to pay the same contribution and have the same co-pays as the employees in the other six bargaining units.

Payment for Temporary Upgrades.  In the past, the parties construed and applied Article VI of the expired contract as requiring the County to pay an employee, who is temporarily assigned to a higher paying job, the rate for such upgraded position for the remainder of his eight-hour shift, even when the employee remained in the upgraded job for less time.  The County insists that Article VI be changed to provide for temporarily upgraded employee be paid the higher rate only for the time actually worked in the higher position.  AFSCME insists that temporarily upgraded employees continue to be paid the rate of the higher job for the remainder of the 8-hour shift, out of concern that otherwise the County would be encouraged to make temporary upgrades of unreasonably short durations or to move employees in and out of such positions multiple times during the workday.  It also contends the County’s proposed change would be counterproductive because, unless employees are paid the rate of the upgraded job for 8 hours, senior employees will exercise their rights to decline the temporary assignments, so that the least senior, and perhaps least qualified, employees would perform temporary assignments.

The County presented little evidence to quantify the amount of annual savings it would achieve as a result of its proposed change.  Under such circumstances, the interests of the parties are best balanced by a compromise between the two positions.  For temporary upgrades of two consecutive hours or less, upgraded employees should be paid the higher rate only for time actually worked in the higher position.  For temporary upgrades exceeding two hours, upgraded employees should be paid the higher rate for the remainder of their shift.  Although this compromise is a departure from strict pattern contracts, it is a minor one that will not significantly diminish the benefits of such contracts.

Employees who worked in upgraded positions from August 1, 2003 to the date of this Award should be paid for any loss of earnings.  However, because it would be impossible to reconstruct which employees would have exercised their seniority rights and have been awarded upgrades, no grievances shall be filed claiming failure to be assigned an upgrade during such period based on seniority.

Premium Rates.  Article VI of the expired contract provided for premium hourly rates, not only for time and one-half (1˝) for over 40 hours of work in a workweek, but also for work in excess of eight hours in a workday (except when employees were working four 10-hour shifts) and for all work performed on a Saturday.  In addition, it required the County to pay double-time for all work on a paid holiday, on a Sunday, and for over 16 consecutive hours.  In the contracts for its other six bargaining units, AFSCME agreed to the County’s proposal that premium rates should only be paid in accordance with the Fair Labor Standards Act, which only mandates time and one-half be paid for work in excess of 40 hours in a workweek.

Although AFSCME firmly rejected any changes in premium pay, bargaining unit employees rarely, if ever, worked on Saturdays or a scheduled sixth when they have not already worked 40 hours and would be entitled to time and one half under the FLSA in any event.  Similarly, they rarely, if ever, worked on paid holidays, Sunday or for over 16 consecutive hours.  Thus, the economic impact of the County’s proposed change on bargaining unit employees would be minimal at best.

Under such circumstances, the benefits of pattern contracts outweighs the interest of AFSCME and bargaining unit employees in maintaining such rarely, if ever, used premium pay provisions.  Article VI should be changed to provide that overtime pay at time and one-half is only required for hours worked in excess of 40 in a workweek, as required by the FLSA, except that sick leave supported by a certificate of a physician or other person licensed to practice medicine should be added to the days listed therein that are credited toward calculating the 40 hours per workweek for overtime purposes.

Vacations.  The County insists upon such extensive changes of the vacation provisions of Article IX of the expired contract, that all but one sentence would remain intact.  Again, the County contends such changes are warranted by the benefits of pattern contracts.  However, the County presented little evidence as to the amount, if any, such changes would reduce its employment costs for bargaining unit employees.

While recognizing the benefits of pattern contracts, such change in the provisions governing eligibility must be supported by sufficient evidence that such wholesale changes would be of significant economic benefit to the County.  The County has not carried its burden, except for the justification for a change in how many days of an employee’s vacation may be taken in one-day increments.  Common sense supports the proposition that allowing employees, who have between 10 to 25 paid vacation days annually, to take all such days in one-day increments has the potential to interfere with the County’s ability to maintain an efficient workforce.  Such interest outweighs the interest of the bargaining unit employees in the convenience in taking all their vacation days in one-day increments.  The interest of both parties can be accommodated by changing the provision to provide that employees may only take one week of their vacation in one-day increments.

Clothing Allowance.  Article XV of the expired contract, which deals with safety and health, required, among other things, that the County to provide each bargaining unit employee with a set of uniforms consisting of five shirts and one jacket.  Because such uniforms were provided as a safety measure, the shirts were orange in order to enhance visibility of the roadworkers to passing traffic.  In addition, the County was required to pay bargaining unit employees a $400 clothing allowance, which could be used for any purpose.  The County insists upon elimination of the allowance.  AFSCME rejected the County’s proposal, as it would, effectively, reduce each bargaining unit employee’s compensation by the difference between the annual amount he expended for work clothes, other than the shirts and jackets (they also received a $75/year shoe allowance) provided by the County, and the $400 allowance.

The competing economic interests of the parties, as well as their mutual obligations to ensure the safety of the bargaining unit employees, can be reconciled best by a compromise whereunder the annual clothing allowance will remain at $400, and the County may supply each employees with a bright-colored safety vest in lieu of such uniform sets.

Job Descriptions.  The expired contract included job descriptions for bargaining unit employees.  Such descriptions apparently have remained the same for some time without causing significant problems for either party.  The County insists upon new job descriptions, which combine some of the duties that had been contained in separate job descriptions under the expired contract.  It also insists upon the right to create new job descriptions, or combine existing job descriptions during the term of the contract, and to limit AFSCME’s right to grieve such descriptions to the issue of the appropriate wage rate for the new job.  AFSCME objects to such combined job descriptions on the ground they would allow the County to temporarily assign employees to higher-skilled tasks included in the new job descriptions and, thereby, reduce the occasions when they would be entitled to upgrade and receive a higher rate of pay.  It also objects to limiting its right to file a grievance to the rate of pay only.

Unlike most of the other changes insisted upon by the County, the proposed job description language cannot be premised on the benefits of pattern contracts, because few, if any, substantially similar jobs exist in the other six bargaining units.  Thus, it is incumbent upon the County to demonstrate the need for such new language.  Logically, the County’s combined job descriptions would result in reduced labor costs.  By the same token, fewer upgrades would reduce the earnings of bargaining unit employees.  Insufficient evidence was presented as to the amount such combined job descriptions would reduce bargaining unit labor costs.  As a result, the County has failed to carry its burden of justifying the need for such combined job descriptions during the term of the contract.

Posting and Filling Permanent Vacancies.  Under Article V of the expired contract, the County was required to post a notice for permanent vacancies, whether due to employees leaving the bargaining unit or the creation of new positions.  The County insists upon changing such provisions to require it to post such vacancies only when it “determines that a permanent full-time vacancy exists in a line of progression other than entry level positions…”.  If the roads division is capable of completing its work without filling a permanent position, the County wants the prerogative to reduce the division’s workforce by attrition.  AFSCME rejected the proposed change, because it construed the existing language to require that the County post and fill all permanent vacancies, unless the vacant position was first eliminated from the budget by the County Commission.

The County has a legitimate interest is in being free to determine when it needs to fill a vacancy that occurs as a result of an employee permanently leaving the bargaining unit, or create and fill a new position, without undue delay.  Under AFSCME’s position, the County would be required to post and fill a vacancy, and keep the employee who bid into it employed in it until exhaustion of the County Commission’s process for eliminating such position from the budget.  AFSCME’s reason for opposing the proposed change is to maintain the number of employees in the bargaining unit.  This is a legitimate interest where there are bargaining unit employees on layoff to be recalled to fill such vacancies.  However, the evidence presented by the parties shows that the bargaining unit has rarely, if ever, had any laid-off employees.

Under such circumstances, the result of AFSCME’s position would be to impair, or delay, the County’s ability to reduce the size of the roads division bargaining unit by attrition without any concomitant benefit to bargaining unit employees.  Since the County’s interests, therefore, outweigh the interests, if any, of the bargaining unit employees, the first sentence of the first line of Section 8 of Article VII should begin: “When the Employer determines that a full-time vacancy exists in the bargaining unit, notice of the vacancy (including promotion or transfer to other shifts or locations), whether due to an employee leaving the position or a newly created opening, shall be posted…”.

Seniority.  To be consistent with the contracts of the six other AFSCME bargaining units, the County insists upon adding a clause to Article V providing that “in all applications of seniority, seniority shall be the determining factor, providing that qualifications and capabilities to perform the available work are relatively equal.”  AFSCME rejects the proposal on the ground it would alter the effect of all provisions in the expired contract in which seniority applies by permitting the County to deny available work to a senior employee with the basic qualifications and ability to perform the available work and award it to a junior employee who it determines has greater qualifications and capabilities. AFSCME insists that seniority should be the determining factor, provided the senior employee has the qualifications and ability to perform the available work.

There is no evidence in the record that indicates the application of seniority under the expired contract has ever been a significant problem for the County.  On the other hand, the County’s language creates a slippery slope, which risks causing both it and AFSCME to slide into a quagmire of grievances over which of two qualified employees is the most qualified.  AFSCME has a legitimate interest in guarding against a situation where two bargaining unit employees may be pitted against one another with it, as the representative of both, in the middle.

In view of the lack of evidence that any serious problems have existed with the application of seniority under the language of the expired contract, AFSCME’s interest in avoiding the potential for such serious difficulties outweighs any interest of the County in including its proposed language.  Thus, the last clause of the paragraph proposed by the County should be changed to read, “provided the senior employee has the qualifications and ability to perform the available work.”

Most Favored Nation Clause.  Section 1 of Article XIV of the expired contract provides that, if any other bargaining unit or group of County employees should receive a greater wage scale adjustment during the term of the contract, employees in the roads division bargaining unit shall receive the identical increase.  Such a provision is commonly referred to as a “most favored nation clause”.  The clause remains in several of the contracts between the County and AFSCME.  In several others, including the most recent contract for the nursing home bargaining unit, AFSCME agreed to the deletion.

The County wishes to have the clause deleted for the roads division contract, largely because the generality and vagueness of its language leaves open too many questions as to its proper interpretation and application.  In particular, the County insists the clause should not apply to increases in the wage scale of its non-union employees or independent contractors.  AFSCME insists the clause should remain in the contract verbatim and should apply to across-the-board wage increases for any group (i.e., two or more) of employees employed directly or indirectly by the County.  It not only believes that fairness demands the bargaining unit employees receive no less of an across-the-board increase than any other group of County employees, but is concerned that, without the protection of the clause, the County could grant higher across-the-board increases to its non-union employees in order to encourage employees to abandon the union.

While both party’s contentions have merit, they are impassed over hypothetical “worst nightmare” applications of the clause, as there is no evidence the clause has ever been invoked by AFSCME.  The interests, or anxieties, of the parties over this clause are so strongly felt, an accommodation is best achieved by revising the clause to provide:  “Should any other bargaining unit or group of three (3) or more non-supervisory employees in this bargaining unit receive a greater across-the-board wage scale adjustment during the term of this Agreement, the wage rate of employees in substantially similar positions shall be increased by the same percentage.”

Emergency Conditions.  Article XV of the expired contract, which covers safety and health, provided that “during emergency conditions, such as snow removal, ice removal, etc., there shall be two persons in every vehicle cab, a driver and helper, if after notification sufficient employees are available to man the vehicles.”  The County insists upon deletion of this provision, because it wishes to have the management discretion to determine when conditions are such that safety requires two employees per truck.  It contends that requiring two employees to a truck every day that snow or ice conditions exist, without regard to whether they actually affect safety, deprives it of the use of the extra employees to perform other productive work.

AFSCME insists the provision remain in the contract unchanged out of concern for the safety of the employees, given the mountainous terrain, narrow roads and severe winter conditions in the County.  It also takes issue with the County’s contention it would have other productive work for the extra employees when such conditions exist, if there were not two employees to a truck, contending that, if the extra employees were not in the trucks, they would remain in the County garage at full-pay doing little or nothing.

The County cannot rely on the benefit of pattern contracts to support its position, as snow and ice removal is unique to the roads division bargaining unit.  At the hearing, it did not present testimony or documentary evidence to support its alleged interest in having the provision changed.  Under such circumstances, such provision should remain in the contract with the addition of a sentence that provides: “Whether emergency conditions exist requiring snow removal, ice removal or use of trucks due to dangerous weather or other conditions shall be reasonably determined by the Employer.”

Four-Day 10-Hour Shift Workweek.  Section 2 of Article VI of the expired contract gave employees an option of working four 10-hour days per workweek during the warm weather months from Memorial Day and the week before the week in which Labor Day occurs.  The County insists this provision be deleted from the contract and that the workweek shall consist of forty hours (consisting of five 8-hour days, Monday through Friday).  AFSCME contends that many of the employees use the time off on the fifth workday to work on farms or other seasonal work to earn extra money to support their families, and that to prevent them from doing so would essentially reduce their total annual earnings.

The benefits of pattern contracts do not come into play with this issue, as none of the other AFSCME bargaining units had a four-day 10-hour shift provision.  Thus, it was incumbent on the County to present evidence that allowing employees to work such a shift during the time period provided (i.e., during daylight savings time) would adversely affect it economically or otherwise.

While the County has given hypothetical examples of how it might be adversely impacted, an award cannot be made based on speculation, especially when the four-day 10-hour shift has been in existence so long.  If there had been a significantly negative impact on the County, one would expect it to have present testimony or documentary evidence at the hearing.  Because the County has not carried its burden of showing the need for eliminating the four-day 10-hour shift during the summer months, the provision should remain in the contract.

Holidays and Personal Leave.  It was argued by the County and AFSCME arbitrators that Maryland Day and Christmas Eve should no longer be paid holidays and that, instead, personal leave time should be increased by sixteen (16) hours.

Retroactivity.  The County objected to the terms and conditions of the contract being made retroactive.  However, because the County did not maintain the wages, benefits and all of the other terms and conditions of the expired contract pending the interest arbitration, and delayed commencement of the arbitration by some nine  months by not participating until ordered by the Court, it would be inequitable to impose any resulting economic losses on the bargaining unit employees. Therefore, the award should be retroactive to August 1, 2003.

Term of Contract.  Although AFSCME had insisted upon a two-year contract, at the hearing, its attorney announced it would tentatively agree to a three-year contract. According, the contract shall be for a three year term commencing on August 1, 2003 and terminating on July 31, 2006.

* * *
CHAIR’S COMMENTS

Contrary to the impression some may have that the relationship between the County and the AFSCME bargaining unit for roadworkers has been seriously damaged by the impasses in the negotiation of a new contract last year and the ensuing litigation over the validity of the interest arbitration provisions in Section 36.2 of the County Code.  I am pleased to say, the collective bargaining relationship between the parties remains alive and well.

It should be noted that, because this was the first occasion AFSCME and the County have been unable to reach a voluntary resolution on all their collective bargaining agreements in the nearly 30 years of negotiations, the interest arbitration provisions of Section 36.2 of the County Code had never been invoked before.  As a result, questions arose over its constitutionality, meaning and application.  True to the rule of law, the parties turned to the judicial system to answer such questions.  Once the Court had finally spoken, they proceeded accordingly.

I wish to recognize the value of the contributions to this arbitration by Mr. Bestpitch, for AFSCME, and Mr. McLellan, for the County.  Both are highly qualified and experience labor relations professionals.  Their knowledge, experience, opinions and good faith were critical to allowing the Chair to understand the impasse issues and the interests of the County and AFSCME and the bargaining unit employees as to each.  Although the deliberations naturally had moments in which tensions rose, the professionalism of Mr. McLellan and Mr. Bestpitch enabled an overall collegial approach to the difficult deliberations of a three-arbitrator, interest arbitration panel.  To a great extent, the successful deliberation of the Panel should be attributed to them.

It was a pleasure to work with Mr. Bestpitch and Mr. McLellan.  The County and AFSCME (and the road division bargaining unit employees) are indebted to them for a job well done under trying circumstances.

In addition, I wish to express my gratitude to the attorneys, Mr. Collins, for AFSCME, and Mr. Levine, for the County, for presenting their clients’ cases so well.  The exhibits and the testimony they presented were very informative.  I commend them on their professionalism, preparation and presentations.

* * *

AWARD

1.            Term.  The Contract shall be three (3) years from August 1, 2003 through July 31, 2006.

2.            Retroactivity.  The terms and conditions of the Contract shall be retroactive to August 1, 2003.

3.            Wages.

A.        Effective July 1, 2004, there shall be a two and one-half percent (2.5%) across-the-board increase in the wage rates of the bargaining unit employees.

B.         Effective July 1, 2005, there shall be an across the board increase in the wage rates of the bargaining unit employees equal to the annual cost of living adjustment of the State Retirement and Pension System of Maryland.

4.            Health Insurance.  Section 1 of Article XIII of the expired contract shall be replaced in its entirety with language identical to that of Section 1 of Article XVII of the contract between the County and AFSCME for the nursing home and rehabilitation bargaining unit.

5.            Temporary Upgrades.

A.         For temporary upgrades of two consecutive hours or less, employees shall be paid at the higher rate only for time actually worked in the upgraded position.

B.         For upgrades of more than two consecutive hours, employees shall be paid the higher rate for the remaining time in their shift.

C.         No seniority grievances shall be filed regarding the assignment of temporary upgrades from July 31, 2003 to the date of this Award.

6.            Premium Rates.  The only premium pay employees shall be entitled to receive is time and one-half (1˝) for hours worked in excess of 40 hours per workweek, except that time off due to paid holidays, bereavement leave, vacation leave, or sick leave with certification by a physician or other person licensed to practice medicine shall be counted toward hours worked for the purpose of calculating the 40 hours per workweek. 

7.            Vacations.  Employees shall be entitled to take no more than one week of their paid vacation days in one-day increments.

8.            Clothing Allowance.  The annual clothing allowance shall be $400.  The County may discontinue providing employees with the uniform sets  consisting of five shirts and one jacket and, in lieu thereof, may provide each employee with a bright-colored safety vest.

9.            Job Descriptions.  The job descriptions shall be the same as under the expired contract.

10.            Posting and Filling Permanent Vacancies.  The first clause in the first sentence of Section 8 of Article V of the former contract shall begin:  “When the Employer determines that a permanent, full-time vacancy exists in the bargaining unit (including promotions or transfer to other shifts or locations), notice of such vacancy, whether due to an employee leaving the position or a newly created opening, shall be posted…”.

11.            Seniority.  The language proposed by the County for application of seniority shall be included in the Contract, except that the last clause of such sentence shall be revised to read, “provided the senior employee has the qualifications and ability to perform the available work.”

12.            Most Favored Nation Clause.  The “most favored nation: clause in Article XIV of the expired contract shall be revised to read:  “Should any other bargaining unit, or group of three (3) or more non-supervisory employees in this bargaining unit, receive a greater across-the-board wage scale adjustment during the term of this Agreement, the wage rate of employees in substantially similar positions shall be increased by the same percentage.”

13.            Emergency Operations.  The following sentence shall be added to Section 4 of Article V of the expired contract:  “Whether emergency conditions exist requiring snow removal, ice removal or use of trucks due to dangerous weather or other conditions shall be reasonably determined by the Employer.”

14.            Four-Day 10-Hour Shift Workweeks.  Section 2 of Article VII of the expired contract shall remain without change.

15.            Holidays and Personal Leave.  Maryland Day and Christmas Eve shall no longer be paid holidays.  Instead, personal leave shall be increased by sixteen (16) hours. 

16.            Agreed Provisions.  The agreed language changes contained in Exhibit “A”  shall be included in the Contract.

17.            Remaining Terms and Conditions.  Except as provided in this Award, all other terms and conditions of the expired contract shall remain unchanged.

18.            Effect of Award.  As provided by Section 36.2 of the Code of Allegheny County, Maryland, this Award shall be final and binding on the County and AFSCME; provided, however, that the parties may change the terms and conditions of the Award or other provisions of the Contract  by mutual agreement.

19.            Retention of Jurisdiction.  The Panel shall retain jurisdiction until a written contract consistent with this Award has been executed by authorized representatives of the County and AFSCME.

Pursuant to their authority under, and in accordance with, the provisions of Section 36.2 of the Code of Allegheny County, Maryland, the Panel issues this Award on this       day of June, 2004.

                                                           
Lynn E. Wagner, Impartial Arbitrator and Chair

                                                           
James Bestpitch, AFSCME appointed Arbitrator

                                                           
G. Edward McLellan, County appointed Arbitrator



[1] The County has used the term “parity” to describe its approach.  In labor relations lexicon, internal “parity” refers to substantially the same wage rates for comparable jobs in different bargaining units.  For example, unions often try to achieve parity between the wage rate of police officers and firefighters.  The term “pattern contract” refers to contracts for different bargaining units containing the same across-the-board increases in wages and substantially the same benefits, other monetary provisions and important language.

 

 

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