Tue, 10/30/ :41:00 AM SERB

Transcription

1 State of Ohio STATE EMPLOYMENT RELATIONS BOARD Final Offer Settlement Procedures In the matter of the conciliation between: City of Uhrichsville, Ohio Public Employer and Fraternal Order of Police, Ohio Labor Council, Inc. Labor Organization for the Labor Organization: Chuck Choate Fraternal Order of Police, Ohio Labor Council, Inc. 222 East Town Street Columbus, OH Also appearing for Employee Organization Brandon McCray Stephen McIntosh ) ) ) ) ) ) ) ) ) ) Case No(s).17-MED /1018 GREGORY P. SZUTER, CONCILIATOR CONCILIATOR'S AWARD AND ORDER [Interest Arbitration] for the Public Employer: Brett Hudson Hillyer Law Director City of Uhrichsville 305 East Second Street Uhrichsville, OH E: <bhudsonhillyer@hillyerlawoffice.com> Also appearing for Public Employer Julie Pearch, Auditor Hearing Date: October 10, 2018 Hearing Locale: Uhrichsville, OH Award Date October 30, 2018

2 INTRODUCTION The City of Uhrichville, Ohio (herein also "Employer" or "City") and the Fraternal Order of Police-Ohio Labor Council, (herein "Union" or "FOP") are parties to this final offer settlement procedure ("conciliation") under Ohio R. C which is a form of interest arbitration relating to establishing the terms for a collective bargaining agreement. This conciliation relates to an replacement to the collective bargaining agreement ("CBA" or "Agreement") between the Union and the Employer expiring December 31, UNIT FOR BARGAINING Uhruchville, Ohio is a small city in Tuscarawas County along the I77 corridor. It has about 5000 population. The City employs about 22 full-time employees not including the elected officials. Of these 21 are in bargaining units and one is clerical. The Uhrichville Police Department is the chief law enforcement agency. The City has a collective bargaining agreement with FOP covering two units for bargaining in the Police Department. One is the patrol unit (case 17-MED ) with six patrol officers and the other is the sergeant unit with two officers (case 17-MED ). The command is taken by the Chief of Police who is excluded from the unit. The Police Department total is nine. The other bargaining units are the street employees (AFSCME) and the fire fighters (IAFF). The Fire Department is about eight and the Street Division, four. The supervisors are the Foreman in the Street Division and the Chief of Fire in the Fire Department. NEGOTIATIONS CHRONOLOGY The CBA was due to expire on December 31, The parties met for the first bargaining session on November 29, Other bargaining sessions were held on various dates: January 22, -1-

3 2018, February 20, 2018 and March 27, The parties entered a Tentative Agreement (TA) 1 on a wage increase of 3% annually on January 1 of each year, 2018, 2019, and That TA was rejected by the FOP units resulting in a fact finding hearing. A Fact-Finder appointed by SERB and the arrangements for the fact finding report was made by stipulation originally for March 30, 2018 and later modified by stipulation to hold a hearing on June 5, 2018 as agreed by the parties. The Report and Recommendation was issued on June 25, 2018 on four issues. The City by vote of Council adopted the Fact Finder Report on June 28, Both units of the FOP rejected the Report. There were Articles in the agreement on which neither party had made proposals on which they have agreed to maintain the status-quo (CCL). In addition the parties reached several written and signed TAs including one agreed at the fact finding hearing. The Fact-Finder incorporated the TAs by specific reference in his Report (p.8). The undersigned was appointed Conciliator by SERB on August 1, By August 10, 2018 the parties and Conciliator agreed to schedule the hearing to be held on October 10, ISSUES The Fact Finder's Report stated that it addressed the following issues. 1. Article 14 Health and Life Insurance 2. Article 15 Sick Leave 3. Article 21 Wages 4. Article {new} Pensions (pick-up) At the Fact Finding hearing a TA was reached on Article 15, Sick Leave. The pre hearing statement of position by the FOP to the Conciliator did not make a final offer on the Pension pick-up 1 Tentative Agreements are "TA." Other abbreviations are: across the board, ACB; current contract language "CCL;" Fact Finder Report and Recommendation, "FFR;" State Employment Relations Board, "SERB" and statement of position, "SOP." -2-

4 and that issue is dropped. (See Union SOP p. 8) Both parties presented final offer positions on two issues. Therefore the issues remaining before the Conciliator are: 1. Article 14 Health and Life Insurance 2. Article 21 Wages The TAs identified in the FFR are incorporated in the Award and Ordered into effect below. HEARING The evidentiary hearing commenced on October 10, 2018, at Uhrichville, Ohio. Prior to the hearing the parties entered a stipulation waiving the effect of R.C (G)(11) so that compensation increases may be awarded retroactive to January 1, 2018 by the Conciliator. On August 22, 2018 the parties also entered into a stipulation to proceed to an evidentiary hearing as scheduled before the Conciliator and waive a record transcript. At hearing the parties also entered another stipulation that each party's pre-hearing SOP with their respective final offers were properly before the Conciliator. 2 At hearing the parties also entered a second stipulation of consent for each party to modify its final offer to the mediated settlement under O.A.C (E)(4). All stipulations appear at Appendix A. MEDIATION The Ohio law encourages fact finders and conciliators to mediate disputes when practical. R.C (G)(1). After a good faith attempt to mediate the final positions and the open issues, the impasse was resolved as to all open issues as set out below. 2 Both statements of position (SOP) with final offers in proper form were present at the conciliation hearing. The chief concern was that both position statements did not arrive at correct address timely before the hearing. Any objections to timeliness or form were waived. -3-

5 CRITERIA The Conciliator shall resolve the dispute between the parties by selecting, on an issue-by-issue basis, as between each of the parties' final settlement offers. The criteria of R.C (G)(7) were considered by the Conciliator in making this opinion and order: (1) Past collective bargaining agreements, if any, between the parties; (2) Comparison of the issues submitted to final offer settlement relative to the employees in the bargaining unit involved with those issues related to other public and private s doing comparable work, giving consideration to factors peculiar to the area and classification involved; (3) The interests and welfare of the public, the ability of the public to finance and administer the issues proposed, and the effect of the adjustments on the normal standard of public service; (4) The lawful authority of the public employer ; (5) The stipulations of the parties; and (6) Such other factors, not confined to those listed in this section, which are normally or traditionally taken into consideration in the determination of issues submitted to final offer settlement through voluntary collective bargaining, mediation, conciliation or other impasse resolution procedures in the public service or in private employment. Except for some evidence of bargaining history (#1), evidence on external comparisons (#2), internal comparisons, interests of the public (#3), and lawful authority of the employer (#4) were not presented. The operative criteria applied throughout this Award in is chiefly criteria #5, and #6. Criteria #6 The general standards of interest arbitration are part of what the sixth criteria refers to. See ELKOURI & ELKOURI, How Arbitration Works (6 th Ed., Ruben, BNA, 2003) at pp : "...[interest arbitration] calls for a determination, upon considerations of policy, fairness, and expediency, of what the contract rights ought to be. In submitting this case to arbitration, the parties have merely extended their negotiations they have left it to this board to determine what they should, by negotiation, have agreed upon. We take it that the fundamental inquiry, as to each issue, is: what should the parties themselves, as reasonable men, have voluntarily agreed to?" Twin Sheriff Rapid Transit Co. 7 LA 845 at 848 (McCoy et al. 1947) The advisory fact finding under Ohio's public bargaining law, answers the question: what would -4-

6 reasonable parties agree to? The FFR is evidence that answers criteria #6. As such is enjoys a rebutable deference in the final offer procedure in Ohio law. 3 In conciliation it is considered in juxtaposition of the parties' final offers. In so far as the party's final offer differs from the FFR it must establish that the final offer ought to be adopted instead of the FFR. That means it must carry the burden of proof that the FFR does not satisfy criteria #6. Some of the ways that this can be shown are by changed circumstances since the FFR hearing or through errors or omissions by the Fact Finder in the Report, or by failure or proof at the Fact Finder hearing. 4 Criteria #5 For issues that became agreed by mediation and otherwise, any stipulations of the parties (#5) are the operative criteria for the decision herein: If, after submission of the parties' reports, mediation efforts result in a change in a final offer, a party or parties may, by mutual agreement, submit a revised final offer to the conciliator. O.A.C (E)(4). The parties each consented to the amendment of their statement of their final offers that had been presented so that, based on their mutual agreements, this Award and Order could adopt those positions as amended as set out below. 3 4 Only when there is a showing of error or when substantial changes have occurred since the fact finding hearing resulting in new evidence shall a Conciliator alter the Fact Finder s recommendation. City of Warren and OPBA, (Graham) Case 2006-MED Following Warren, a Conciliator found,"the common practice among Conciliators of giving very significant weight to well-reasoned recommendations of the Fact finding Report." IAFF Local 2860 and City of Eastlake, (Meredith) Case No MED See also City of Lakewood and IAFF, (Byrne) Case No MED ; City of Medina and OPBA, (Ruben, A.) Case No MED ;In the Matter of IAFF Local 480 and City of Alliance, (Zeiser) Case No MED Trotwood/IAFF Local 4024, SERB Case No. 15-MED , p.6 (Trombetta). Also note: A Conciliator need not defer to the Fact Finder's recommendation where the Fact Finder never discussed his rationale or the competing considerations or where it is unclear the Fact Finder was presented with the same information as was presented to the Conciliator. In City of Sheffield Lake and OPBA, (Nelson) Case Nos MED , 2007-MED , 2007-MED

7 OPINION AND ORDER ISSUE: No.1. Health Benefits CONTRACT :Article 14 Health and Life Insurance FACT FINDER RECOMMENDATION: Employer proposal. (see below) POSITIONS: The Employer's Final Offer : Insurance Committee (Details below) POSITIONS: The Union's Final Offer: CCL OPINION AND ORDER: In the past contract term, and before that, the City had provided health insurance through its participation in a statewide buying group or consortium. That consortium had financially failed and ceased operation in The City was able to continue a standalone policy for 2017 under the terms and conditions agreed in the prior collective bargaining agreement. The City has also continued that coverage through the 2018 year during negotiations under the extension of the old agreement. In the current arrangement the employee's contribution towards premium is $20 per week notwithstanding the number of dependents i.e. whether the coverage was single coverage or nonsingle coverage. That is $80 a month. Increases in cost have been absorbed by the City. The City argues that current level of contribution hamstrings the City's effort to find flexible, cost-effective, affordable healthcare for all members. No other plan in the county offers the same benefits for such a low cost. With three-year negotiating cycles, and each Union on a different cycle, it becomes difficult for impossible to plan for a health care benefits program in one year calendar year increments. The Fire Union proposed an insurance committee and the Street Union proposed the coin flip to break ties. The proposed committee structure brings transparency and the ability for the Unions to manage healthcare costs ongoing. The City claims the FOP's proposal of CCL is not -6-

8 feasible. The FOP units would be separate from the plan of the remaining employees, roughly 10 in each group. Having two programs for very small groups of employees would be detrimental overall to the benefits of all of the employees. The City proposal for the balance of the agreement would be the establishment of an insurance committee which would deal with the escalating healthcare costs. The committee would be comprised of one bargaining unit member from each of the three divisions (police, fire and street) and up to three representatives of the City. Tie votes of the committee voting as a whole are decided by a flip of the coin. The Committee is expressly empowered with four functions. 1. Maintain the current plan with employees paying any increase costs. 2. Change the current plan by reduction of benefits to offset increased costs. 3. Change the current plan and compensate for it by an increase cost through reduction in benefits or an increase cost to employees or some combination. 4. Decrease employee contribution rates if there is a decrease in costs. The City's objective is to provide a common insurance plan for all employees. The City has maintained benefits and absorbed costs. It cannot do so continuously. The formation of the insurance committee means addressing future costs together with two other Unions. The Fact Finder held that "history favors the City's proposal" and recommended it. The Union proposes CCL ie. to continue the prior health benefit and life insurance plan. The City's proposal would force the Union into bargaining with two other unions which would have majority control since the FOP units together were only have one member of the committee. Police units do not want to surrender their ability to negotiate independently from the other unions. Healthcare benefits and related costs are mandatory subjects of bargaining in each contract cycle. Being forced to participate in the insurance committee would give up a fundamental negotiable right to determine what insurance package would be best represent their members interests. -7-

9 The Union argues there is a glaring error made by the Fact Finder when he found that the record does not reflect that the FOP units had ever negotiated different healthcare plans from other employees. While true, the error is that merely because it has not been done, it does not mean the FOP should give up the right to do so. The Fact Finder found there was much to recommend the insurance committee however the Union points out that is only true when participants want to participate. What is next? Would it be a committee on wages? No conciliator in the Union's research has ever ordered a unit to surrender a right to bargain on a mandatory subject. The Fact Finder agreed to the Union's proposal on wages and to the City's proposal on insurance. However these units have come off a history of very hard times. The 3% wage increase does not come close to compensating for the loss of the right to negotiate healthcare. In mediation it was learned that the major objection of the Union centered on having some other entity determine the amount of the monthly premium cost for its members. The Union proposed incorporating a monthly cost schedule into the committee structure. In mediation the Union representatives admitted that the $80 per month for employee payments towards premium regardless of dependents is no longer realistic. The City was amenable to including some cost parameters for employees' contributions on a not-to-exceed basis. However the monthly premium contribution for single and non-single coverage needed to be significantly different from the current levels. In caucus the Union proposed separate costs be listed as $80 per month for single, and $160 per month non-single. This mirrors the current monthly payment on the single coverage and doubles the monthly payment for non-single coverage. On an annual basis that is $960 and $1920. Statewide averages per SERB for groups of 1-49 employees is $63.70 and $ monthly. The City caucus -8-

10 insisted it could not obtain health program unless the single coverage was single at $1400 and nonsingle at $3000 the first year and $1800 single and $3600 non-single, second year. In further mediation the parties ultimately agreed the base contribution rate for premiums paid by employees would not exceed the following: 2018 base contribution paid 100% by the City 2019 single $1400 /non-single $ single $1800/ non-single $3600 In further discussion on the composition of the committee it was noted that during negotiations statements were made that the membership on the City side of the committee would include one or more volunteers from the public. The parties agreed that members of the committee appointed by the City would be from the administration and council. Two other matters were discussed and resolved so as not to require language because they are inherent in the committee's powers. One is whether the committee could elect to make no change from year to year. The other was whether life insurance would be listed. That was one of the traditional benefits in the insurance plan. However, the purpose of the committee language is not to list benefits which could limit the committee's choices. Because life insurance is typically a very small cost benefit, the committee could elect to include it, or not, as one of the benefits. Ultimately both parties modified their final offer positions. After mediation at the conciliation hearing by mutual agreement the parties adopted the Employer's final healthcare offer with revisions. The parties' agreement appears at Appendix B. ISSUE 1 Order: Article 14 Health Benefits (former title: Health and Life Insurance), the mediated settlement mutually agreed by all parties is ordered into effect as shown in Appendix B. -9-

11 CONTRACT : Article 21: Wages ISSUE: No. 2. Wages FACT FINDER RECOMMENDATION: 3% ACB each year, January 1. POSITIONS: The Union's Final Offer : Same as FFR. POSITIONS: The Employer's Final Offer: FFR OPINION AND ORDER: In the collective bargaining agreement of 2015 to 2017 wages did not increase in the first year but there was a 2% increase effective in 2016 and another 2% in 2017, both January 1 of each year. In negotiating for the replacement collective-bargaining agreement of 2018through 2020 the Union proposed 3% ACB in every category and every rank in each year as of January 1. The Union noted the past economic difficulties of the unit and presented expert testimony from outside accountant. The City made a proposal in dollars and cents with the percentage increase shown parenthetically as follows: 2018: 34 (0.017%) 2019: 29 (0.014%) 2020: 24 (0.011%) The City did not assert any inability to finance or administer a 3% ACB increase nor did it object to the economic report submitted by the Union. In response to the Fact Finder, the City changed its position to 3% ACB but with biweekly pay periods contingent upon acceptance of the City's health benefit proposal. Having recommended the City's health benefits proposal, the Fact Finder proceeded to recommend the Union proposal for 3% across-the-board wage increase. The Fact Finder noted parties had agreed to the Union's proposal regarding longevity increase, and the clothing allowance -10-

12 increase to $800 with the maximum rollover of $1200. Those were recommended. In addition the recommendation included typographical changes for section designations. At conciliation parties met in mediation and agreed to the 3% ACB proposal by the Union with the addition of biweekly pay periods. Ultimately both parties modified their final positions. After mediation at the conciliation hearing by mutual agreement they adopted the Union's final wage offer with biweekly pay periods. The parties' agreement appears at Appendix C. The compensation summary for comparison purposes is: First year 3% Second 3% Third 3% ISSUE 2 Order: Article 21: Wages, the mediated settlement mutually agreed by all parties is ordered into effect as shown in Appendix C. -11-

13 ISSUE: No 3. Tentative Agreements CONTRACT : The parties have tentatively agreed to the following articles: Article 1 - Purpose Article 2 - Recognition Article 15 - Sick Leave Article 16 - Overtime Article 18 - Paid Leave Article 20 - Promotions & Probation Article 23 - Personal Property Article 24 - Officer Safety Article 26 - Training Fund Article 28 - Light Duty Article 30 - Duration FACT FINDER RECOMMENDATION: Recommended all TA's including Article 15 which was agreed at the fact finding hearing. POSITIONS: The Employer's Final Offer : FFR POSITIONS: The Union's Final Offer: FFR.. OPINION AND ORDER: With the exception of the TA's on Articles 14, 21, and 30, the parties' TA's signed and entered during negotiations and recommended by the Fact-Finder will be ordered. The schedule appears above. At the Conciliation hearing the parties entered additional TA's, Article 14 and 21 on the two articles considered by the Fact Finder but which remained open issues. They have been decided elsewhere herein. ISSUE Tentative Agreements: All tentative agreements listed above other than as to Articles 14, 21, and 30 are ordered into effect. -12-

14 ISSUE: No. 4. Duration CONTRACT : Article 30 - Duration FACT FINDER RECOMMENDATION: NA POSITIONS: The Employer's Final Offer : Three year agreement effective date January 1, 2018 to December 31, POSITIONS: The Union's Final Offer: Three year agreement effective date January 1, 2018 to December 31, OPINION AND ORDER: The duration of the agreement was not an open issue in contest at either the fact-finding or the conciliation but subject to a TA. It is separately recited here in the Conciliator's Award and Order for ease of reference to the bargaining parties in their future relationship and for purposes of state research. ISSUE 4 Order: As to Issue Article 30: Duration the TA is ordered into effect as follows: ARTICLE 30 - DURATION This Agreement shall remain in full force and effect from January 1, 2018, through December 31, Made and entered at Cuyhoga County, Ohio. October 30, 2018 Gregory P. Szuter, Conciliator PROOF OF SERVICE: The foregoing has been sent by electronic mail via the internet on October 30, 2018, to FOP-Ohio Labor Council and City of Uhrichville, Ohio both to their representatives per addresses shown on the cover and filed with the State Employment Relations Board in the same manner. -13-

15 APPENDIX A

16

17

18

19

20

21 APPENDIX B

22

23

24 APPENDIX C

25

26