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Title:
Date: March 4, 2004
Arbitrator: N.
Eugene Brundige
Citation: 2004 NAC 151
STATE EMPLOYMENT RELATIONS
BOARD
CONCILIATOR’S REPORT
IN THE MATTER OF:
[Interest Arbitration]
Ohio Patrolmen’s Benevolent Association
And
The
Case Numbers:
03-MED-03-0317
03-MED-03-0316
Before Conciliator
N. Eugene Brundige
PRESENTED TO:
Dale A. Zimmer, Administrator
Bureau of Mediation
State Employment Relations Board
And
Matthew B. Baker, Attorney and Advocate
For the Ohio Patrolmen’s Benevolent Association
And
Rufus B. Hurst, Attorney and Advocate
Downes, Hurst & Fishel
For
N. Eugene Brundige was duly
appointed by the State Employment Relations Board to serve as Conciliator in
this matter, in compliance with Ohio Revised Code Section 4117.14(D)(1) by
letter dated
A hearing was held
In their pre-hearing filings the parties identified the following issues, as being unresolved:
1.
Article 19 – Sick Leave conversion upon retirement:
Sections 19.11 and 19.14
2.
2004 Wage increase.
The parties submitted to the Conciliator, all other Articles that had been previously negotiated, as well as the other undisputed sections of Article 19. The Conciliator agreed to incorporate them, and the other Articles that have been tentatively agreed to, into this report.
The parties further agreed that the two separate units should be treated as one in this report, and that the two sections of the Sick Leave Article should be treated as one issue.
The
The County was represented by Rufus Hurst. Appearing with him was Michael T. Brown, Hardin County Auditor, Gerald Potter, County Commissioner, Robert Hubbard, Lt. David V. Dyer and Chief Deputy Ken Hilty.
BACKGROUND:
The bargaining unit consists of all full time deputy sheriffs and all full-time sergeants. There are approximately fifteen or sixteen members of the two bargaining units.
This is an initial contract between the parties and they are to be commended for narrowing the issues going to conciliation to only two.
SICK LEAVE CONVERSION
AT RETIREMENT:
Employer’s position
The Employer proposes to allow employees with at least ten (10) years of service who have accumulated one thousand (1,000) hours or less of sick leave, as of the date of this collective bargaining agreement, to convert up to two hundred fifty (250) hours of sick leave at the rate of pay at retirement, to a maximum of six hundred (600) hours.
The employer argues that this amount is greater than the amount provided by O.R.C. 124.39.
The employer’s proposal protects the interests of the five employees eligible for retirement but limits future benefits by placing a limit on the future economic impact.
The second part of the Sick Leave issue is covered in 19.14 where employees with more than five hundred (500) hours of accumulated sick leave would be authorized to annually cash in up to two hundred fifty (250) hours.
The employer notes that the current county policy does not provide for annual cash out.
Finally, the employer notes that the
Fact Finder in his report, removed the ten year threshold for the sick leave
buyout, a result neither the
Union Position:
The
To prove this point, the actual payout
records of several employees were provided.
The
Particularly relevant was an older case (6 LA98, 101) written by Arbitrator Clark Kerr in which he notes: “The arbitrator considers past practice a primary factor. It is standard form to incorporate past conditions into collective bargaining contracts, whether these contracts are developed by negotiation or by arbitration. The fact of unionization creates no basis for the withdrawal of conditions previously in effect.”
This case differs in that the past practice was not initiated by the County legislative authority, but by a county office holder operating in opposition to the existing County policy.
In addition the County is proposing an arrangement in which they would include a reference in the new contract that does allow for annual buy out.
Finally, the fact one party does create a past practice does not compel them to forever keep that practice if a change can be obtained through the negotiations process.
Discussion and award.
The County, as a prudent employer, is attempting to guard against large unpredictable unfunded liabilities, by re-writing their future sick leave buy-out provisions. They have protected those persons who are currently eligible to retire, and have added an annual provision that allows employees to cash out a share of their unused sick leave.
I am persuaded that the employer’s position on sick leave should be awarded.
The Contract language shall read:
Section 19.11 Sick Leave Conversion Upon Retirement.
ANY EMPLOYEE WHO, AS OF THE DATE OF THE EXECUTION OF THIS
AGREEMENT, HAS ACCUMULATED 1000 HOURS OR LESS OF SICK LEAVE MAY,
upon retirement under the Public Employees Retirement
System,
employees may
convert one-fourth of their accumulated sick leave to a
maximum amount of conversion of two hundred
FIFTY (250)
forty (240) hours
at the employee’s rate of pay at the time of retirement.
ANY
EMPLOYEE, WHO, AS OF THE DATE OF EXECUTION OF THIS AGREEMENT, WOULD BE ENTITLED
TO SICK LEAVE CONVERSION IN EXCESS OF 250 HOURS UNDER THE EXISTING METHODOLOGY
OF ALLOWING ½ OF ALL HOURS ACCUMULATED, SHALL BE ENTITLED TO THOSE HOURS UPON
RETIREMENT.
NO ADDITIONAL HOURS ABOVE THOSE CURRENTLY ACCURED SHALL BE
CONSIDERED FOR PURPOSES OF CONVERSION.
Additionally, to be eligible for sick leave
conversion at retirement the employee must have worked for the Sheriff’s Office
at least ten (10) years immediately prior to retirement.
The ten (10) years of service must be immediately
prior to retirement with no break in service.
Upon conversion of sick leave all hours of
accumulated sick leave will be deemed waived.
No employee may have more than one conversion from
the County.
Section 19.14 shall
read:
Section 19.14 Annual
Conversion.
Employees who have
accumulated unused sick leave credit in excess of
FIVE HUNDRED (500)
six hundred (600)
hours shall annually have the option of receiving a cash benefit conversion at
one hundred percent (100%) for part of the balance of their unused sick leave.
Employees shall be permitted
to receive a cash payment for up to two hundred
FIFTY (250)
forty (240) hours
of accrued, but unused sick leave provided that the cashing out of sick leave
does not reduce the sick leave benefit bank below
FIVE HUNDRED (500)
six hundred (600)
hours.
The case benefit conversion shall equal one
(1) hour of base rate pay for every two (2) hours
of accrued, but unused sick leave converted.
Any employee who wishes to exercise the sick leave
conversion option must notify the Sheriff or his designee in writing no later
than the tenth of November each year.
WAGES:
Background
The parties have previously reached agreement that there
will be no wage increase in 2003.
Likewise, they have agreed that there will be a
wage re-opener for 2005.
Thus, the only area of disagreement is the wage
rate for calendar year 2004.
(The parties have also agreed on Section 2:
Longevity Pay.)
Union Position:
At Fact Finding the
To guide the conciliator in the area
of comparable jurisdictions, the
Using the same counties, (plus Wyandot) Deputy Sheriff’s
are $6,988.87 less than the average. (Average = $29,868.87;
When one examines the increases awarded in these same
comparable counties the average is 3.3% [not including Union Country which had a
10% increase].
For Sergeants the average is 3.75%.
Employer’s Position
The employer proposes an across the board increase of 30
cents per hour for all employees in 2004.
The County did a very effective job of demonstrating the
extremely difficult financial situation the county faces. The total
appropriation for 2003 was $6,128,378 and is reduced to $5,815,793 for 2004.
The immediate economic projections do not give
reason to expect an upturn in the near future.
The County would be hard
put to fund the thirty cent, across the board increase, but would find the funds
to do so.
It was noted that other
County employees are not receiving any wage increases.
Discussion and Award
This is a difficult matter.
There is no doubt that
It is also apparent that the employees in these two bargaining units have not been compensated adequately.
The external comparables strongly favor the union. The internal comparables strongly favor the employer.
If this were Fact Finding, this neutral would have the ability to “tinker” with the pay structure and find some middle ground. It is not. This is conciliation and I must pick the position of one of the parties.
The structure proposed by management is problematic to me. Across the board pay increases do nothing to maintain the relative positions of the persons within the units, and also do not meaningfully address any inequities within the existing pay structure.
While I am not convinced that either
position is the “right answer” I believe, in light of the fact the employees
received no increase in 2003, and giving due deference to the opinion of the
fact finder, I award the
Specifically the contract shall read:
Section .01
Wages
Effective
After giving due consideration to the positions and arguments of the parties and to the criteria enumerated in ORC 4117.14(G)(7) the Conciliator awards the above stated positions. Specifically those criteria are:
4117.14(G)(7)(a) Past collectively
bargained agreements, if any, between the Parties;
4117.14(G)(7)(b) Comparison of the issues
submitted to the final offer settlement relative to the employees in the
bargaining unit involved with those issues related to other public and
private employees doing comparable work, giving consideration to factors
peculiar to the area and classification involved;
4117.14(G)(7)(c) The interests and welfare of
the public, the ability of the public employer to finance and administer the
issues proposed, and the effect of the adjustments on the normal standard of
public service;
4117.14(G)(7)(d) The lawful authority of the
public employer;
4117.14(G)(7)(e) The stipulations of the
Parties;
4117.14(G)(7)(f) Such other factors, not confined to those listed in
this section, which are normally or traditionally taken into consideration
in the determination of the issues submitted to final offer settlement
through voluntary collective bargaining, mediation, fact-finding, or other
impasse resolution procedures in the public service or in private
employment.
In addition, all agreements previously reached by and between the parties and tentative agreed to, are hereby incorporated by reference into this Conciliation Report, and shall be included in the resulting Collective Bargaining Agreement.
Respectfully submitted and issued at
_________________________
N. Eugene Brundige, Conciliator
The undersigned hereby
certifies that a true copy of the foregoing
Conciliator’s Report was sent by regular
Dale A. Zimmer, Administrator
Bureau of Mediation
State Employment Relations Board
And
Matthew B. Baker, Attorney and Advocate
For the Ohio Patrolmen’s Benevolent Association
And
Rufus B. Hurst, Attorney and Advocate
Downes, Hurst & Fishel
For
this 4th
Day of March, 2004.
__________________________
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.