28 day free trial

 

 

  

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

Search arbitrators | National Arbitration Center | Search awards 

 

Title: Delaware County Board of Commissioners and IAEP Local R7-11
Date: December 13, 2006
Arbitrator: N. Eugene Brundige
Citation: 2006 NAC 122

STATE EMPLOYMENT RELATIONS BOARD
CONCILIATOR’S REPORT

                                        IN THE MATTER OF:       CONCILIATION
                                                                                [Interest Arbitration]

IAEP Local R7-11
And
Delaware County Board of Commissioners,
 Department of Emergency Medical Services

                                    AAA Case Number:
                                                52 390 00377 06

                                                                                                Before Conciliator
                                                                                                N. Eugene Brundige

PRESENTED TO:

                                    Edward E. Turner, Administrator
                                    Bureau of Mediation              
                                    State Employment Relations Board
                                    65 East State Street, 12th. Floor
                                    Columbus, Ohio 43215-4213
                                                            And
                                    Richard H. Anderson, Jr.
                                    International Association of EMT’s and Paramedics
                                    159 Burgin Parkway
                                    Quincy, Massachusetts  02169
                                                            And
                                    Johnathon J. Downes,
                                    for the Delaware County Commissioners
                                    400 South Fifth Street
                                    Columbus, Ohio 43215-5492
                                                            And
                                    Lisa Kozlo, Case Manager
                                    The American Arbitration Association
 
                                   27777 Franklin Road, Suite 1150
                                    Southfield, Michigan 48034

                                   

            N. Eugene Brundige was selected by the parties pursuant to the procedures of the American Arbitration Association to serve as Conciliator in this matter.

            While this is a bargaining unit covered by the provisions of ORC 4117, the parties had negotiated a provision in their previous collective bargaining agreement which bypasses certain requirements of the statute.

            This provision reads as follows:

ARTICLE XXVII - ALTERNATIVE DISPUTE RESOLUTION PROCEDURE

A. The provisions of this Article will be followed in lieu of requesting the State Employment Relations Board to intervene as provided in Section 4117. 14(C)(2) of the Ohio Revised Code. However, a notice to negotiate shall be filed with SERB per the statutory time frame and process.

B.  If impasse is reached, either party may request in writing the appointment of a
binding conciliator. The parties jointly will request a list of seven arbitrators from the American
Arbitration Association ("AAA"). The parties will select the conciliator by the alternate strike
method, and either party may request another list(s) from AAA. The parties shall split the cost of the conciliator and AAA equally. The conciliator will hold a hearing within thirty (30) days of
appointment and, within thirty (30) days of the close of the hearing, shall issue a written report to both parties, which may be made public. At least one week before the hearing date, both parties shall provide each other and the conciliator with their last best offer on each outstanding issue. Each party may also suggest to the conciliator a package or packages of the issues based on the parties' last and best offers. The conciliator may conduct mediation before hearing evidence. His determination, after hearing, must be on an issue by issue basis from the parties' last and best
offers. The conciliator's determinations must be based on the criteria set forth in O.R.C. §4117.14(G)(7).

C.  Awards and orders of the conciliator are subject to Ohio Rev. Code §4I17.  In essence, the drafters of the previous agreement agreed that they would by-pass the fact finding provision of the statutory process and would use the American Arbitration Association as their method of selection of the conciliator, but the other major provisions of the Statute would be utilized.

The Decision of the conciliator must be based on the criteria of ORC 4117.14(G)(7) which 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.

The parties also noted that the award issued by the Conciliator must conform

 with the provisions of ORC 4117.14(H).

 “All final offer settlement awards and orders of the conciliator made pursuant to Chapter 4117. of the Revised Code are subject to review by the court of common pleas having jurisdiction over the public employer as provided in Chapter 2711 of the Revised Code. If the public employer is located in more than one court of common pleas district, the court of common pleas in which the principal office of the chief executive is located has jurisdiction.”

            The parties submitted the required pre-hearing statements at least five (5) days before the date of the hearing          

Noting the variations from a statutory conciliation process, a hearing was

 conducted at the County Commissioners’ Building in Delaware, Ohio, October 10, 2006. 

            The parties determined to file post hearing briefs which were timely submitted.

            At hearing a procedural issue was raised when the Union attempted to amend its last best offer regarding some of the articles.

            In its post hearing brief the Employer cited several cases which prohibit either party from amending its last best offers less than five (5) days prior to the hearing.

            The Conciliator took the objection under advisement and agreed to rule on the issue in the written Conciliator’s Award.

At the hearing the Conciliator requested the parties enter into mediation and each party discussed the possibility with their representatives present at the hearing.

                After much internal discussion the Union stated a willingness to attempt mediation but the County declined.

ORC 4117.14(G)(3) states, The conciliator shall conduct the hearing pursuant to rules developed by the board. The conciliator shall establish the hearing time and place, but it shall be, where feasible, within the jurisdiction of the state. Not later than five calendar days before the hearing, each of the parties shall submit to the conciliator, to the opposing party, and to the board, a written report summarizing the unresolved issues, the party's final offer as to the issues, and the rationale for that position. 

            In addition, the Ohio Administrative Rules detail the process of

conciliation.  OAC 4117-9-06(E) discusses what needs to be included in the

submission that is required five (5) days in advance of the hearing.  Section

(E)(4) states:

A report defining all unresolved issues, stating the party's final offer as to each unresolved issue, and summarizing the position of the party with regard to each unresolved issue. If, after submission of the parties' reports, mediation efforts result in a change in a final offer, a party may, with the permission of the conciliator, submit a revised final offer to the conciliator.

            After reviewing the statute and the Administrative Rules, it is clear that last best offers can only be amended following mediation and with the permission of the conciliator.

            Since mediation did not occur in this case, it is my ruling that the Union is precluded from amending any of its last best offer submissions.

            The Union apparently reached the same conclusion.  In its post hearing brief the Union conceded the point when it noted in a footnote at the bottom of page 2:

 “The Union attempted to submit revisions and/or clarifications of its LBO’s at the hearing but the relevant sections of the O.R.C. preclude changes to a party’s LOB unless the conciliator undertakes mediation.  Since the Employer was unwilling to participate in mediation the Union’s LBO’s are limited to those submitted in advance of the hearing.”

            The Conciliator will consider the Last Best Offers the parties presented in their pre-hearing submissions.

            The parties are also in disagreement as to what constitutes an “issue” in this case.

The Employer submits that each article of the collective bargaining agreement is a separate and distinct issue, while the Union believes that some articles contain more than one issue.

            In support of its argument the Union cites a previous decision by Joseph Santa-Emma who decided three separate and distinct issues all of which resided within the Wages Article.

            The alternative dispute resolution language in the last collective bargaining agreement refers to, “His determination, after hearing, must be on an issue by issue basis…”

            Black’s Law Dictionary, 7th Edition defines an “issue” as, “A point in dispute between two or more parties.  In federal civil procedure, an issue is a single, certain, and material point arising out of the allegations and contentions of the parties.”

            Even the Employer’s brief lists points and sub-points.  Absent agreement between the parties as to what constitutes an issue, I must agree that some articles contain more than one issue for determination by this Conciliator.

            The Employer raises an additional procedural objection citing the Union failed, “to file a written report summarizing the unresolved issues and the rationale for its position(s) on the outstanding issues as required by R.C. 4117.14(G)(3).”[1]

            The remedy sought is for the Conciliator to rule that all the Last Best Offers submitted by the Union be ruled untimely and therefore excluded from the record by the Conciliator.[2]

            The Conciliator rejects this objection by the Employer. The language of the alternative dispute resolution provision of the collective bargaining agreement differs from the statute on this point. The relevant section of Article XXVII reads:

At least one week before the hearing date, both parties shall provide each other and the conciliator with their last best offer on each outstanding issue.  Each party may also suggest to the conciliator a package or packages of the issues based on the parties' last and best offers.”

It is the opinion and ruling of the Conciliator that the Union complied with the requirements of the alternative dispute resolution language of the collective bargaining agreement regarding its pre-hearing submissions..

                The final procedural matter raised by the Employer relates to the effective date of the fiscal issues being considered in addition to salary.[3]  The Employer notes that pursuant to ORC 4117 the Conciliator lacks the authority to award fiscal issues in the same year in which the Conciliator was appointed.

                The Conciliator will discuss this matter when the issue of duration is discussed.

            Based upon my ruling regarding what constitutes an issue and after careful review of the pre-hearing submissions of the parties, the open issues to be decided by the Conciliator include:

ARTICLE 19 A (2) - Use of Sick Leave

ARTICLE 19 A (7) - Pay Out Upon Death

ARTICLE 19 A (8) - Pay Out Upon Separation

ARTICLE 19 B – Funeral Leave

ARTICLE 19 C (1) – Jury Duty

ARTICLE 19 (D) Union Leave

ARTICLE 21 A – Vacations

ARTICLE 22 (C) – Holidays

ARTICLE 24 – Health Insurance

ARTICLE 25 (A) – Wages

ARTICLE 25 (E) – Out of Class Pay

ARTICLE 25 (F) - Longevity

ARTICLE 38 – Duration

BACKGROUND:

            The Department of Emergency Medical Services is an agency of the Delaware County Commissioners.  It provides emergency medical services to the majority of Delaware County.

            The Department is unique in that it stands alone and separate from any fire department.  The employees work twenty four (24) hours and are off forty eight (48) hours.

            Thus the County cannot utilize the overtime calculations contained in the Fair Labor Standards Act (Section 207 K) due to the fact the employees are not fire fighters as defined in the Act. 

            Consequently employees in this unit receive time and one half (1 ½ )  pay for any hours actually worked over forty (40) in a work week.

            The bargaining unit members are represented by the International Association of EMT’s and Paramedics.  There are approximately ninety six (96) members of the bargaining unit.

            They are governed by a collective bargaining agreement with a term from January 1, 2003, through December 31, 2005.

            After being unable to negotiate a new successor agreement, the parties utilized the alternative dispute resolution procedure (Article 27) and selected N. Eugene Brundige as binding conciliator from lists provided by the American Arbitration Association.

            During the course of the hearing and in their post hearing briefs, each party referred to internal comparables relating to the other bargaining units within Delaware County.

            The Employer also provided data from non-organized Delaware County employees and some external comparisons.

            While all data was considered in the formulation of this award, it is apparent that, due to the unique structure of the unit, that there are few external comparables and in several issues, the most relevant comparables are those within Delaware County as they relate to the unique nature and duties of the employees within this unit.

            There are other provisions that are common throughout many collective bargaining agreements and not specific to the duties of this unit.  In those cases the relevance of comparable data is dependent upon the experience and knowledge of the Conciliator.

STRUCTURE OF THIS REPORT AND AWARD:

            Each issue with be discussed based upon the record of the hearing and the pre and post hearing submissions of the parties.

            Based upon the facts ascertained and the application of the statutory criteria, an award will be stated for each open issue.

ARTICLE 19 A (2) – Use of Sick Leave

Position of the Employer –

            The Employer proposes to add to the end of this section the wording, “where the employee’s presence is reasonably necessary.”

            The Employer contends this language adds clarity to the section.  It notes the proposal was discussed at several negotiating sessions and examples were provided.

            Similar language is present in many public sector collective bargaining agreements.  It provides an additional tool to the Employer to help manage the use of sick leave in a twenty four (24) hour operation.

Position of the Union –

            The Union argues that  the proposed language does not appear in any of the other collective bargaining agreements between the County of Delaware and the six other bargaining units.  Likewise, the Delaware County Employee Handbook does not include such a restriction.    The Union notes that the Employer failed to establish that it has experienced any problems with Family Sick Leave under the current language.

Discussion and Award of the Conciliator –

            While comparability is an important consideration in each case, the lack of language in other Delaware County agreements, is not an absolute bar against the Conciliator awarding different language if other statutory criteria are met.

            The proposed language is appearing more often in public sector collective bargaining agreements.  The Employer has a legitimate business interest in controlling the use of sick leave and this change would provide an additional tool to assist in that task.

            But to include this language requires that the Employer, at the very least, provide evidence of situations where the use of sick leave for family purposes has been problematic for the Employer.

            Without evidence of problems created by the absence of such language, I must award current contract language.  I accept the last best offer of the Union regarding Article 19 A (2).

ARTICLE 19 A (7) – Pay Out Upon Death

Position of the Union -  

            The Union proposes to increase the amount of unused sick leave paid to the estate upon the death of the employee - from the current one out of every three days to one out of every two days - and to pay to the estate all unused sick leave if the employee dies in the line of duty.

            The Union acknowledges that the current benefit is the same paid to all other Delaware County employees.  It argues that the dangers inherent in the work environment for members of this bargaining unit justify the proposed added benefit.

            The Union is in agreement with the point raised in the hearing that Sheriff’s deputies face similar risks and suggest that the Employer should add the additional level of benefit for deputies as well.

Position of the Employer -

            The Employer favors maintaining current benefits and language in this section.  It cites the fact that the current benefit goes beyond what is required by state statute and notes that no other Delaware County employees receive this increased benefit.

            The Employer notes that the Union failed to provide comparable data that would justify this increased level of benefit.

Discussion and Award of the Conciliator -

            While it is true the internal comparables do not support this change, there are other statutory criteria to consider.

Section 4117.14(G)(7)(f) permits the Conciliator to consider, “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.”

Unions and Employers often want to care for the families of those employees who tragically die while still in the active service and particularly for those who are taken in the line of duty.

Since September 11, 2001, the public has been more aware of the dangers facing safety personnel.

I find that the last best offer of the Union is compelling in this situation and award the following:  Article 19 A (7) shall read; 

Upon death of an employee, unused accumulated sick leave shall be paid to his spouse, children, or parents, if any, in that order, or to his estate.  Payment for accumulated sick leave at the time of death shall be based on the employee’s regular rate of pay at the time of his death, with one such hour of pay for every two (2) hours of accumulated sick leave. (If the employee’s death was in the line of duty, payment for accumulated sick leave at the time of death shall be one hour of pay for each hour of accumulated sick leave.)

ARTICLE 19 A (8) Pay Out Upon Separation

Position of the Union -

            The Union proposes to reduce the length of service necessary to receive a buy out of sick leave upon separation from ten (10) years to five (5), and to increase the pay out from the current one fourth (1/4) of the days to one third (1/3).

            The Union acknowledges that all other groups of Delaware County employees receive the same level of benefit as what is included in the current collective bargaining agreement.  It argues that the unique nature of the unit and the increased risks justify the greater benefit.

Position of the Employer -

            The Employer notes that the proposal is greater than the conversion policy of the County and far exceeds any external comparable agreements.

            It notes that the Union failed to provide any justification for this significant increase in the accrued liability of the County.

Discussion and Award of the Conciliator -

            The County does not benefit from encouraging employees to separate from employment earlier in their tenure than they currently do.  The cost of sick leave conversion is not only an immediate cost to the County, but also requires budgeting for future liabilities.

            In this Conciliator’s view such expenditures require significant justification.

            For these reasons I award current contract language in this section.

ARTICLE 19 B – Funeral Leave

Position of the Union -

            The Union proposes to increase the current twenty four (24) consecutive hours of funeral leave to forty eight (48) and amend the purpose for attending a funeral to “bereavement purposes…”

            The Union notes that the other Delaware County collective bargaining agreements range from three (3) to five (5) days of funeral leave. 

            The Union believes its proposal would be more in line with other Delaware County employees.

Position of the Employer -

            The Employer notes that the twenty four (24) hour funeral leave actually permits a bargaining unit employee to take up to five (5) calendar days away from work, and notes that, in actual hours, the benefit is comparable to that of other employees.

            Further, the Employer observes that bargaining unit employees can utilize sick leave if more time is needed.

Discussion and Award of the Conciliator -

            Comparables in this area are like the proverbial comparison of apples and oranges.  The more important consideration for the Conciliator is whether people are able to get the time they need to attend to the funeral and other needs surrounding the burial of a loved one.

            There is no evidence that persons have been denied such time.

            Therefore, there is no basis in the statutory criteria for me to award anything different from current collective bargaining language.

ARTICLE 19 C (1) – Jury Duty

Position of the Union -

            The Union notes that the proposed language would merely memorialize in the agreement the current practice of the parties.

Position of the Employer -

            The Employer admits that the language proposed by the Union is the current policy and practice of the County.  It notes the change was not discussed in negotiations and it does not see why the current language needs changed.

Discussion and Award of the Conciliator -

            One of those “other factors” conciliators are to consider includes taking actions that will ensure good labor relations.

            Since everyone admits the language proposed by the Union reflects current policy and practice, its addition to the agreement can only foster understanding and add clarity to the agreement.

            I award the last best offer of the Union on this issue.

            Article 19 C (1) shall read: Employees may be excused from work for jury duty {or when subpoenaed to court when such subpoena results from an incident that occurred when the employee was on duty.  Whether or not the court appearance arising from such a subpoena is on a scheduled work day, the employee shall be paid for all such time in court.}

ARTICLE 19 D Union Leave

Position of the Union -

            Again the Union proposes to incorporate a current practice into the collective bargaining agreement. 

            The Union proposes to change the word “designee” to “designee(s).”  It notes there is no proposed increase in the number of hours for union business.

Position of the Employer -

            The Employer notes that no justification has been offered during negotiations for this proposed change.

            It argues no other County agreement has unlimited use of union leave time.

            The Employer advances the argument that this change might lead to persons being paid for union leave while they were not on duty..

Discussion and Award of the Conciliator -

            It appears to me that the Employer is being overly cautious on this point.  The addition of a single letter “s” merely memorializes current practice.  It is a reasonable request on the part of the Union.  I award the position of the Union regarding Article 19 D (1).  The section shall read:

The union president or his designee(s) shall be granted up to one hundred fifty (150) hours of time off with pay, upon prior approval, for the duration of the collective bargaining agreement, for the purpose of attending negotiations or labor relations meetings.

ARTICLE 21 A – Vacations

Position of the Union -

            The Union proposes to add one (1) shift of vacation each year to each of the levels in the collective bargaining agreement and to delete the vacation language for employees who work a twelve (12) hour shift.

            The argument in support of this greater benefit is that EMS employees work a fifty-six (56) hour week compared to a forty (40) hour week for most other employees.  In the view of the Union this creates an internal inequity.

            A further argument is that those employees who have worked less than eight (8) years are not able to take a full two (2) week period of time for a vacation under the current contract language.

            The Union justifies the removal of the language for twelve (12) hour shift employees by noting that the County currently does not have any of these employees.

Position of the Employer -

            The Employer believes that the attempt to remove the twelve (12) hour  shift language is a “back door” attempt to eliminate the possibility of the County utilizing such employees.

            The County also notes that the proposal would result in a 25% increase in vacation benefits.

            The Employer does supply external comparables which indicate Delaware County EMS employees receive a richer vacation benefit that other external agencies doing similar work.

Discussion and Award of the Conciliator -

            The most persuasive argument offered by the Union relates to those employees with less than eight years service.  If this were fact finding, I would like to recommend a modification that would allow some relief for that specific situation.

            But because this is conciliation, I must look at the issue and choose one position or the other.

            The comparison of length of work weeks is another “apples to oranges” comparison.  Each work situation has its negatives and positives.  A more helpful measure in these types of benefits is the comparison to external comparable agencies.  The Union clearly falls short in this type of comparison.

            A 25% increase in vacation is a significant cost to the County and is not justified by the evidence or data.  Current language will be maintained.  I award the position of the County regarding Article 21 A.

ARTICLE 22 C – Holidays (new section)

Position of the Union -

            The Union proposes a new section in the Holiday Article which attempts to mirror the language in the Delaware County Employee Handbook.  The first part would codify the current practice of EMS employees receiving eight (8) hours of holiday pay for holidays that are observed on the day off.

            The new provision would increase holiday pay for holidays that are observed on a work day from the current eight (8) hours of pay to one (1) hour of straight time pay for each hour worked on the holiday.

            The Union notes that a grievance is pending on holidays but that is based on current language and not on the new proposed language.

Position of the Employer -

            The Employer proposes current language.  It notes that the Union has provided no data from external comparables to support the change.

            The County notes that Delaware County EMS personnel receive more holidays than any of the private sector comparable agencies cited.

            The Memorandum of Understanding agreed upon in 2003 was an attempt to resolve the way in which time worked on a holiday would be compensated.

            In the view of the Employer, the benefit paid to EMS personnel is equal to or greater than that received by any other County employee.

Discussion and Award of the Conciliator -

            While the Memorandum of Understanding is instructive, I do not find it to be relevant in this matter in that the Union is proposing to change the language upon which it was based.

            Again, comparison to forty (40) hour employees is difficult in this circumstance.  The most relevant internal comparison would likely be deputy sheriffs but their contract embodies an entirely different approach wherein holidays are not named and only the amount of holiday time earned is mentioned.

            There does seem to be an apparent inequity between forty (40) hour employees who are paid on an eight (8) hour basis, and those employees who work the entire holiday.  But such significant benefit changes need to be supported by data and evidence as to how such matters are handled in comparable agencies and jurisdictions.

            Absent any comparable data, I must go with the last best offer of the County and award current contract language.   

ARTICLE 24 - Health Insurance

Position of the Union -

            The Union proposes to freeze health care premiums at the same percentage rate as are currently in effect.

            Its argument is straightforward noting that the increases in some health care premiums have totally eroded the pay increases received by bargaining unit employees over the period of the last agreement.

            The Union provided data that after taxes, a paramedic at the top pay step, with Option 1 family insurance, nets less take home pay than before the premium increase.

Position of the Employer -

            The Employer notes that all County employees are covered by the same health care plans and that the County has done an admirable job of maintaining competitive benefit levels.

            It notes that comparable external data shows employees paying 20-25% of the cost of health care premiums.  The Option 2 plan actually is offered with no premiums but with higher deductibles and co-pays.

            The premium cost for Option 1 is approximately 5% of the total.

            The County notes that Conciliator Martin Fitts awarded current language in the deputies’ collective bargaining agreement.

Discussion and Award of the Conciliator -

            Health care continues to be one of the most contentious issues in collective bargaining today.  Costs skyrocket and employers and employees are faced with trying to contain costs within acceptable levels.

            It appears that Delaware County has done a good job of managing this challenge in a manner that provides decent benefits to employees without shifting a major part of the increases to employees.

            It is equally understandable why a union would seek some type of guarantee regarding the amount of increases that will be borne by employees.  It is quite common to include some type of percentage cap in collective bargaining agreements.

            However, the challenge is establishing what that cap should be.  No data reviewed by this conciliator suggests that the current cap is any place close to a modest 5% of the premium.

            While I do not like the open ended nature of the current contract language, the comparables submitted by the Employer and the data considered will not support capping the percent at current levels.

            I have also considered the views of Conciliator Martin Fitts in the Delaware County Conciliation with the Ohio Patrolmen’s Benevolent Association[4] and must agree with him when he noted:

“This Conciliator does not believe a compelling argument has been presented that the retention of current language is detrimental to the members of the bargaining unit, even considering the costs that the employees will now bear with respect to health insurance premiums.” 

            Considering the Last Best Offers of each party and the statutory criteria on the matter of Health Care I award the position of the County to maintain current language in Article 24.

ARTICLE 25 A Wages – Salary Scale

Position of the Union -

The Union proposes a 2% across-the-board increase for 2006, and the addition of a new seven (7) year step which is 3.5% above the previous step in the first year.

On 01/01/07 the Union would eliminate the first step which would move the remaining steps backward and add another step (a new step 7) at 3.5% above the last step.

On 01/01/08 it would eliminate the second step and move the remaining steps back.  This action would eliminate the seventh year step.

The Union notes that the Employer has not asserted an “ability to pay” argument.

The Union believes that if the Employer’s last best offer is awarded, the wage increases will be grossly inadequate in comparison to the increases received by the deputy sheriffs.

As noted earlier, the Union believes that the deputies’ unit is most like the EMS unit.

The Union notes that the data submitted demonstrated that the deputies’ unit received across-the-board increases of 3.5% in each of the three years of their agreement.

The Union refers to Employer’s Exhibit 7 which demonstrates that deputies at the top step will receive annual increases ranging from 11% to 18.4%.

Deputies at the top step in any of the three years will receive 3.5% across-the-board increases.

The Union notes the maximum step increase for EMS employees under the Employer’s last best offer is 3.5%.  It notes there would be no step increase for the thirty-one (31) employees who have six (6) years of service in 2006, with only a 2% step in 2007, and no increase for the forty-seven (47) employees with six (6) years of service in 2007, and only a 2% increase in 2008 for the fifty-six (56) employees who have six (6) years of service in that year.

Position of the Employer -

            The Employer notes that both parties basically agree upon the mechanics of how wage increases will work.

            The addition of steps and the elimination of bottom steps works to raise the recruitment salary for new employees.

            The major difference lies in the amounts proposed.

            The Employer states the escalating system proposed by Conciliator Santa Emma led to no employee in this unit receiving less than 13% increase over the life of the previous agreement.

            The Employer argues that the Union’s proposed first year increase of a step plus across the board increases (6-8%) would provide a significantly larger increase for those employees at the top step than is being proposed by the Employer.

            The County argues that there was no justification provided for such a major adjustment for the most senior people.

            The Employer argues that the 6-8% is far in excess of the data for the public sector in Ohio.  To support this contention it cites data from the State Employment Relations Board (SERB) which notes that the average was 2.79% in 2004 and has not been higher than 3.78% in the last ten (10) years.

            The Employer notes that current payroll costs for members of the bargaining unit is $4,039,948.35.  Under the County proposal the amount would increase to $4,120,747.32 in 2006 and under the Union’s proposal would increase to $4,350,272.94 with a difference in 2006 of $229,525.63.[5]  The County estimates the difference in 2007 to be $299,370.23 and in 2008 $372,895.62.[6]

            Based upon this data the Employer argues that its last best offer is more reasonable.

Discussion and Conciliator’s Award -

            The Union correctly notes that the Employer has not advanced an “ability to pay” argument.

            The Union argues that the remaining factor for the Conciliator to consider is internal comparables.

            While internal comparables are important, they are not the only consideration a Conciliator must consider.

            The interest of the public and other factors require the Conciliator to examine the overall impact and reasonableness of the proposal.

            I commend the parties on the progressive method of salary scheduling they have employed with the addition and dropping of steps.

            While I am not pleased with the last best offer of either party, I must choose between them.

            The internal comparable with Delaware County Sheriff’s deputies can be viewed in at least two ways.

            If one considers only the proposed increases for this contract then the Union’s view that Management’s proposal is inadequate would seem to be the better position.

            If one views the situation from the Employer’s viewpoint and includes the increased compensation to be received by each employee that is a product of moving through the steps, then the County’s proposal looks very different.

            As is so often the case the answer lies someplace in the center.  Certainly the bottom line for employees is how much more money they will be making next year than they received last, but there is also the consideration that the employees would have received some of that money even if a new agreement had not been negotiated.

            If it were not for the increases of the first year under the Union’s proposal, I would be inclined to award the Union’s position, but those increases go far beyond the average compensation increases recorded by SERB.

            This Conciliator has recommended and awarded amounts as large or larger in other cases. But in those cases the Union supplied data and evidence that showed a significant shortfall that needed to be remedied.

            Because of the limited number of external comparables in Ohio, it is difficult for the Union to supply such information.

            Thus, reluctantly for the reasons stated, I award the position of the Employer.  The language shall read:

ARTICLE 25 – WAGES Section 25.1 The following rates of pay are set forth in the wage scale Appendix A[7].

ARTICLE 25 E - Out of Class Pay

Position of the Union -

            The Union proposes to change “crew chief” to “lieutenant” which is the terminology currently used in the Department.

            The more substantive change proposed is to reduce from “twelve (12) consecutive hours” to “two (2) consecutive hours” the length of time it is necessary for an employee to serve in a higher position before that employee is compensated for out-of-class pay.

            The Union argues that the Employer subverts the payment of out-of-class pay by assigning more than one employee the higher duties for a period less than twelve (12) hours.

Position of the Employer -

            The Employer notes that the acting pay provision was added following the conciliation three years ago.  It also states the Union has provided no justification for changing the language.

            It is the view of the County that the rationale for the twelve (12) hour period is to have someone serve as lieutenant in charge at a scene.  It fails to see the necessity of a command officer or the differentiation of duties in a two (2) hour period.

Discussion and Award of the Conciliator -

            Neither party has provided data to substantiate its respective positions on this proposal.

            Thus, when there is inadequate data to decide an issue I must stick with current contract language.

            I award the position of the Employer to maintain current language.

ARTICLE 25 F - Longevity

Position of the Union

            The Union proposes adding a new provision requiring the payment of longevity compensation.

            The Union notes that the County Sheriff’s deputies are the group most directly comparable to EMS employees and they receive longevity compensation.

            Corrections officers also receive the same longevity benefit.

Position of the Employer -

            The Employer notes the Conciliator three years ago rejected a similar proposal.

            It notes that the longevity of employees is recognized through the step system which EMS employees do receive.

Discussion and Award of the Conciliator -

            Longevity plans are fairly common in public sector collective bargaining agreements in the State of Ohio.

            The rationale for the inclusion of such a plan is to provide some additional amount of compensation increase for those persons who are at the top of their step increases and to reward employees who loyally remain with the Employer.

            The argument of the Union regarding the comparability with deputies and corrections officers on this point is persuasive.

            The Employer notes that it would like to remove the benefit from deputies rather than add it to other units.

            While I quite understand the Employer’s position, the increased costs in health insurance and the modest nature of the Employer’s wage proposal create a different environment for considering this benefit than was considered by Conciliator Santa-Emma three years ago.

            The facts support the addition of this benefit.

            While I personally prefer the proposed amendment offered by the Union at the hearing, consistent with my earlier ruling, I am precluded from considering or awarding it. 

            I would note that the parties can still mutually agree to this variation if they so desire for ease of administration and consistency with the deputies’ unit.

            Pursuant with my authority, I award the Union’s last best offer regarding a new letter F under the Wage Article.  The language would read:[8]

ARTICLE 25 F – Longevity  (new section)

            As compensation for full time years of service to the County, employees shall be entitled to annual longevity pay based upon years of completed service.  Such longevity pay shall begin after completion of the fifth (5th) year of service and shall equal $100.00 for each year of completed service.  Longevity shall be paid bi-weekly and shall be based upon the number of completed years of service with the County as of the date of payment.

ARTICLE 38 - Duration

Position of the Employer -

            The County notes that both parties have proposed an expiration date of December 31, 2008.

            The Employer objects to provisions that “have the hidden costs of retroactivity.”[9]

            The County proposes that the effective date of the new agreement would be the dates of “execution.”

            The Employer notes that there has been an agreement that wages will be retroactive to January 1, 2006, but lacks any agreement on the part of the Union as to the impact of other retroactively applied benefits.

Position of the Union -

            The Union argues that all articles which do not have a specific effective date should be retroactive to January 1, 2006.[10]

The rationale advanced is that “because of the inequities that have been discussed hereinabove”… should be awarded.

Discussion and Award of the Conciliator -

            It is common for parties to public sector collective bargaining agreements in Ohio to agree upon the impact and effective date of various provisions within the agreement.  In this case only the retroactivity of wages has been agreed to.

            Many of the articles, in addition to wages, have an economic impact. Additionally ORC 4117.14(G)11 places restrictions on the Conciliator where it states:

“Increases in rates of compensation and other matters with cost implications awarded by the conciliator may be effective only at the start of the fiscal year next commencing after the date of the final offer settlement award; provided that if a new fiscal year has commenced since the issuance of the board order to submit to a final offer settlement procedure, the awarded increases may be retroactive to the commencement of the new fiscal year. The parties may, at any time, amend or modify a conciliator's award or order by mutual agreement.”

            Because of these restrictions I know of no way to meet the mandates of the statute unless I award the position of the Employer. 

            Therefore I award the position of the Employer regarding Article 28.  The language shall read:  ARTICLE 28 – DURATION

This Agreement shall be effective from date of execution through December 31, 2008.

SUMMARY:

After 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 last best offer of the respective parties as stated herein.

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 London, Ohio this 13th day of December, 2006.

_________________________
N. Eugene Brundige, Conciliator

CERTIFICATE OF SERVICE

            The undersigned hereby certifies that a true copy of the foregoing Conciliator’s Report was sent by regular U.S. mail to: Richard H. Anderson, Jr., Representative for IAEP Local R7-11, 159 Burgin Parkway, Quincy, Massachusetts 02169; and Johnathon J. Downes, Representative for the Delaware County Commissioners, 400 South Fifth Street, Suite 200, Columbus, Ohio 43215-5492; and Edward E. Turner/ Administrator, Bureau of Mediation, State Employment Relations Board, 65 East State Street, 12th Floor, Columbus, Ohio 43215-4213; and Lisa Kozlo, Case Manager, The American Arbitration Association, 27777 Franklin Road, Suite 1150, Southfield, Michigan 48034; and by electronic mail to Messers Downes and Anderson this 13th  day of December 2006.

                                                                                    __________________________ 
                                                                                    N. Eugene Brundige, 
                                                                                    Conciliator

 
[1] Employer’s Brief, page 6.

[2] In its pre-hearing submission the Union provided the Conciliator and the Employer with its Last Best Offers but did not provide rationale regarding each position.

[3] The parties have mutually agreed that salary increases will be retroactive to January 1, 2006 but disagree on the effective date of other fiscal issues.

[4] SERB Case No 04-MED-10-1103

[5] Management’s estimate of the difference in cost of the County’s proposal and the Union’s proposal.

[6] The Union provided no cost estimates to refute those submitted by the Employer.

[7] The parties mutually agreed at the hearing that it would not be necessary to attach the appendix in that they would be aware of which Pay Scale to use based upon the Conciliators selection of the Last Best Offer.

[8] Unless the parties mutually agree to substitute the language contained in the Union’s attempted amendment.

[9] Employer’s Post Hearing Brief, Page 31

[10] Union’s Post Hearing Brief page 18

Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search  
Employment Law Memo | EEOC Info | NLRB Info | Arbitration | Articles | Law Firms | Site Map 

 

Get your 28 day trial now 

 
LawMemo, Inc.
Post Office Box 8173 Portland, OR 97207
Phone: 877 399-8028