IN THE MATTER OF FACT-FINDING BETWEEN TOWN OF WELLESLEY (MA) and WELLESLEY FREE LIBRARY STAFF ASSOCIATION !!!

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1 IN THE MATTER OF FACT-FINDING BETWEEN TOWN OF WELLESLEY (MA) and WELLESLEY FREE LIBRARY STAFF ASSOCIATION Factfinder: Appearances: FINDINGS AND RECOMMENDATIONS (Corrected) For the Town: For the Association: Susan R. Brown James M. Pender, Esq. Morgan, Brown & Joy Indira Talwani, Esq. Segal Roitman Date of hearing: 4 December 2013 Date of Recommendations: 22 January 2014

2 Wellesley/Library Staff Association, Factfinding Page 2 of 15 BACKGROUND The Wellesley Town Library consists of three buildings, the main library and two small branches (Hills and Fells). It employs about 52 professional and non-professional Librarians in various capacities plus six Custodians; many of the employees in all capacities, including Custodians, are part-time. In 2006, the Town moved to close the two branches after a Proposition 2 ½ override vote to save them failed; the branches began to operate again in 2008 and continue to do so today by virtue of charitable donations. Hills is open Tuesday through Saturday, Fells only two and a half days. The main Library operates seven days a week (closed on Sunday in July and August). The Staff Association is an independent union; the parties have been negotiating since Until 2012, the bargaining unit consisted of all Library employees who worked twenty hours or more a week, including Custodians but excluding the usual managerial exceptions. Employees who worked fewer than twenty hours in the same job titles were paid at a substantially lower hourly rate than those in the bargaining unit. In 2010, the Board of Trustees cut Library hours for budgetary reasons, which resulted in a reduction of hours for one bargaining unit employee. As a consequence, the reduced employee assumed the hours of a non-bargaining unit employee, hours for which the Library paid her on the non- bargaining unit wage scale. The employee grieved, asserting that she should be paid for her work at Union scale since it was the same work she performed routinely on her regular job. On 2 May 2011, Arbitrator James Litton granted the grievance. Shortly thereafter, employees who work less than 20 hours petitioned for recognition to bargain collectively.

3 Wellesley/Library Staff Association, Factfinding Page 3 of 15 On 16 February 2012, the Massachusetts Department of Labor Relations certified that by a majority vote of those concerned, all regular part-time employees working less than twenty (20) hours a week were to be added to the existing bargaining unit for purposes of bargaining wages, hours, and other conditions of employment. The Library currently employs personnel in this category who work as few as four hours per week. The newly-constituted bargaining unit consists of roughly one-half longstanding Association employees, now known as POs (Permanent employees Over twenty hours), and one-half newly added PUs (Permanent employees Under twenty hours) plus Custodians. 1 The parties last negotiated agreement ran from 1 July 2008 through 30 June Bargaining for a successor agreement began in January 2011 and after several sessions, the parties had agreement on all but two issues: wages (Article 19) and the assumption of non-bargaining unit hours by bargaining unit employees after a RIF (Article 22). The May 2011 arbitration award on this latter topic impacted negotiations and in July, the parties filed a joint petition for mediation. Two mediation sessions in September and October failed to produce an agreement, specifically regarding Article 22. In October, the Association filed the representation petition for PUs that resulted in the February 2012 DLR order detailed above. Because the Association was now bargaining for both POs and PUs and it was necessary to establish initial contract terms for the new bargaining unit positions, " The Town recently consolidated all Custodians, no matter where they are assigned, under the aegis of the Facilities 1 Maintenance Department. This gave rise to the anomaly that the Library Custodians are paid for by that Department but their wages are negotiated by the Library. All concerned parties are discussing the possibility that the Custodians would leave the Association and affiliate with AFSCME Local 49, which represents the other employees in the rest of the Town.

4 Wellesley/Library Staff Association, Factfinding Page 4 of 15 the parties negotiations postures changed considerably. No negotiation sessions were held between October 2011 and July When the parties resumed bargaining in July, the Union initially sought to incorporate the PUs into the existing contract structure, giving them all the same wages and benefits as the POs. The Town s first counterproposal sought two separate units one for POs and one for PUs with different wage and benefit scales plus language that would restrict bumping between units. The parties bargained until January 2013 when they once again participated in mediation. At the end of mediation in May, the parties had reached a tentative agreement on a one-year contract for POs ( ) which provided a 1% salary increase and some language changes. In addition, they had tentative agreements for a subsequent contract for the expanded bargaining unit including unpaid PU benefits (vacation, holidays, leaves, etc.), a modified RIF provision, no changes in professional development, and other miscellaneous items. The chief outstanding items in May were the vacation schedule, the shift differential, steps on the salary schedule for PUs, and wage increases. The Town made a final offer, which was taken to the bargaining unit by the Association s negotiations team with a no recommendation and was rejected. In turn, the Town rejected the Association s counterproposal and the parties sought factfinding. This is a highly unusual situation for a factfinding because it combines attributes of bargaining between parties (the Town and POs) who have a long history, a mature contract and an established relationship, with those of bargaining for a first contract (for the PUs). These two

5 Wellesley/Library Staff Association, Factfinding Page 5 of 15 situations generally have very different dynamics; combining them has made for complications that have stalled agreement for several years. The bald facts are these: the Town must adjust itself to the loss of a part-time staff over which it had complete control and a bargaining unit that has doubled in size while the Association insists that funding for the new bargaining unit employees should not come from the pockets of the more-established employees. As can be seen from the summary of negotiations set forth above, both parties have come a long way from their initial proposals on how to incorporate PUs into the bargaining unit. It is to be hoped that this factfinding report will help them go a bit further, agree to a contract and thereby normalize the new relationship. It is important to note that my recommendations are based on what I believe would be a fair and reasonable settlement of the outstanding issues in light of all the evidence I have before me, irrespective of whether the parties have accepted or rejected particular provisions during negotiations. The parties have, from different perspectives, juxtaposed their various financial and language proposals with mechanisms for expanding the bargaining unit. Because of the unusual circumstances of this factfinding, I find it helpful to discuss these proposals together rather than individually. Therefore, I have presented the parties proposals and arguments on all issues first, followed by my discussion and recommendations on the total contract. DURATION Association s proposal: The Association proposes that the parties enter into two one-year contracts the contract to which the parties have already tentatively agreed and one for followed by a three-year contract from July 2013 through June 2016.

6 Wellesley/Library Staff Association, Factfinding Page 6 of 15 Town s proposal: The Town proposes the one year already agreed to plus a three-year contract from July 2012 through June Association s arguments: The Association points out that the parties have expended considerable time and resources since 2011 bargaining for a new agreement. If the new contracts are signed today and extend only to mid-2015, the parties would have barely a year before having to start negotiations for a successor contract. Both the Town and the Association have limited resources and waiting an additional year would benefit both. This would not break precedent; the Town has already entered into an agreement with at least one other bargaining unit that extends to Town s arguments: The Town points out that the Association s proposal to extend the contract to 2016 was raised for the very first time at the factfinding hearing and is therefore beyond the jurisdiction of the factfinder. Moreover, the Town cannot make any kind of proposal for FY16 without knowing the full budgetary effect of the preceding three years. Finally, the Library has a new Director who began in October 2013 and should be afforded the time and opportunity to set his priorities with the Library Directors. WAGES Town s proposal: The Town proposes the following for Library employees: : 1% across the board (TA, for POs only) Non-custodians POs 1.5% 1% 2% PUs 1.5% * 2% *Step 1 on the wage scale for respective positions Custodians 1.5% 1% 2% Association s proposal: The Association seeks the following wage increases for the entire bargaining unit: : 1% for POs only as per TA : 1.5% : 1%, plus all non-custodian PUs move to Step 1 of the pay scale : 2% %

7 Wellesley/Library Staff Association, Factfinding Page 7 of 15 PUs AND THE WAGE SCALE Current contract language: Because PUs have never been covered by the collective bargaining agreement, there is no contract language that addresses their placement. The parties have agreed, however, that in the second year of the new contract ( ), PUs would be placed on Step 1 of the scale appropriate to their positions. The dispute arises regarding whether they would move along on the scale commensurate with their pro-rated years of service in the bargaining unit or would remain on Step 1 throughout their employment. Town s proposal: The Town proposes that PUs remain on Step 1 of the salary scale, commensurate with the positions they hold, for the duration of their employment with the Library. These employees would receive only the annual across-the-board raises set forth in the collective bargaining agreement. Association s proposal: The Association proposes that PUs advance on the salary schedule in proportion to the number of hours they work, i.e., they are eligible for a step when they have worked the number of hours equivalent to that of a full-time employee, the same system applied to part-time POs as set forth in Article 19 (d). Town s arguments: The Town seeks to improve the PU wage scale but in a sustainable manner considering the Town s fiscal constraints. In August 2012, it proposed a 3% increase for FY2013 and another for FY 2014, significantly higher than any increase for any other Town employee group. In October, the Town made an even more generous offer by proposing to place PUs on the Step 1 of the POs salary schedule at a cost estimate of just under $30,000 plus the increased structural costs arising from subsequent cost-of-living raises. This was coupled with a proposal to eliminate the shift differential for all Librarians, a step that would cover less than half the cost. The proposal was rejected by the Association, which does not seem to want to share the sacrifice of bridging the wage gap for PU employees. Association s arguments: The Association points out that PUs perform exactly the same work as their PO counterparts and yet are significantly underpaid and get no benefits. For example, a PU Circulation Assistant who may have been working for the Library for many years earns only $13.40 an hour whereas under the contract that expired in 2011, a newly-hired PO performing the same work earned $15.95 and with experience could be earning as much as $ The same figures for a Reference Librarian are $21.61 for a PU and a range of $23.25 to $29.42 for POs. The figures produced at factfinding indicate that PUs are the lowest paid workers in the Town; comparison data also indicate that they are underpaid compared to employees in 18 comparitor libraries. Despite the jump that PUs will make when they are placed on Step 1 of the salary schedule, they will still be underpaid compared to their counterparts in the Wellesley Library, in other Town bargaining units, and in surrounding libraries. Moreover, according to the Association, the Town s current offer is less than that made during negotiations where it proposed pro rata step increases for PUs beginning in the third year of the agreement based on

8 Wellesley/Library Staff Association, Factfinding Page 8 of 15 service completed after 1 July 2013, exactly the same system as applied to part-time PO employees. SHIFT DIFFERENTIAL Current contract language: Article 19 (j) currently provides: A premium of two dollars ($2.00) per hour shall be paid for all scheduled hours worked between the hours of 5:00 p.m. and 6:00 a.m. in any work day and for all hours worked on Saturday. Town s proposal: The Town proposes to eliminate this provision. Association s proposal: Current contract language. Town s arguments: The Town s proposal is made to help offset the costs of placing PUs on the salary schedule, a cost it believes should be shared by the Association. The Town s proposal as it stands, particularly for wages, is already a financial reach the Town has recently told each Department that it must stay within a 1.75% increase in salary and wages effective FY15. The Library is precluded from cutting expenses in other areas because of state library certification and funding requirements. The Town has already had to engage in substantial fund-raising efforts for operating costs and employees who work in the branches are paid by dollars from those efforts they don t come out of the Town budget. The Town cannot look for any more money. VACATION Current contract language: Article 10 currently provides in pertinent part: (a) The following annual vacations with pay shall be granted to all employees who are on the payroll July 1, and who complete the following periods of continuous employment during the vacation year: Service Period six months one year five years ten years twenty years Vacation one week two weeks three weeks four weeks five weeks

9 Wellesley/Library Staff Association, Factfinding Page 9 of 15 Vacation time shall be credited and charged on the basis of hours. Vacation time is determined by the number of hours an employee is scheduled to work, as of July 1, multiplied by the number of weeks of vacation for which an employee is eligible..... (e) Notwithstanding the provisions of Section (a) employees whose classifications and positions are unique to the operation of the Library shall be entitled to four (4) weeks of vacation, provided they are on the payroll July 1 and complete one (1) years of continuous employment during the calendar year. The current practice for PUs follows the language of Section (e) except that the vacation is unpaid. Town s proposal: The Town proposes that new Library hires be placed on the current Town vacation schedule (one week after six months, two weeks after one to two years, three weeks after three to five years, and four weeks after ten years). It further proposes that the present vacation plan, i.e., four weeks after one year s employment, paid for POs, unpaid for PUs, should be grandfathered for current employees. Association s position: Current contract language for POs and applied to PUs, unpaid, as is the current practice. Town s arguments: The Town points out that this bargaining unit is the only one in the Town that has front-loaded vacation benefits; although reform of this benefit is long overdue, the Association has resisted many attempts to be brought into line with the standardized Town schedule. The Town characterizes this benefit as an unearned granting of paid vacation benefits wholly unrelated to any commensurate period of service... and asserts that it is fiscally irresponsible in the current economy. Moreover, it serves as an unhelpful point of comparison for other Town employees, particularly during negotiations. Although the Town has sought to inoculate current employees with a grandfather clause, the Association adamantly resists any changes to a benefit that may have been appropriate in the 1970s but is currently unacceptable. The Town acknowledges that it had dropped this proposal when the parties came closer to settlement in 2011 but the subsequent expansion of the bargaining unit altered the status of negotiations. The new need to establish terms and conditions for additional employees made addressing the alignment of benefits with the rest of Town employees even more important. This proposal would not reduce the benefits of any current employees, either PUs or POs, an important element to note in combination with the wage offer that significantly increases PU wage rates. Association s arguments: The Association points out that this language has been in the collective bargaining agreement for almost thirty years, from the very first contract. The Town has sought changes in the past but at each negotiations, the parties trade-offs have allowed this

10 Wellesley/Library Staff Association, Factfinding Page 10 of 15 language to remain in the agreement. In fact, during the course of this round of negotiations, in March 2011 the parties had tentatively agreed to no changes in this language. The practice for PUs has been for the same vacation schedule as POs although unpaid. Even after the bargaining unit add-on, the Town did not raise this article in its first proposal other than noting that PUs leave under the new contract would be unpaid as per current practice. The Association s last best offer here is commensurate with that first Town proposal in this new negotiation posture. HRA Current contract language: The Town currently maintains a Health Reimbursement Arrangement to assist employees to cover specified health care costs such as certain office and emergency room visits, hospital costs, outpatient surgery and prescription drugs, on a tax-free basis up to $400 for an individual employee and $1000 for a family. Town s proposal: The Town proposes to maintain the HRA through calendar year Association s proposal: The Association proposes to maintain the HRA through 2015 or, if the factfinder recommends the Association s proposal on duration, through DISCUSSION: To place the rest of the proposals in a framework, it is necessary to first address the question of duration. While I do not disagree that it would save both dollars and sanity to have a two-year hiatus from bargaining after a three-year marathon of negotiations, I cannot recommend the Association s proposal. It is apparent from the parties bargaining history that after they tentatively agreed to a one year contract for , they consistently discussed a three-year follow-on covering 2012 through The Union did not raise the possibility of extending the agreement to 2016 until the day of the factfinding hearing, when it presented its wage offer to cover five years (two one-year and one three-year contracts). Irrespective of any merits of this idea, I cannot recommend the duration extension in light of the fact that the Town had no opportunity to research and consider a thoughtful response. I suggest that the parties

11 Wellesley/Library Staff Association, Factfinding Page 11 of 15 might agree on an additional year, perhaps with re-openers, but only if it would not cause further delay in signing a contract. These parties have faced an unusual situation. It is rare that additions to a bargaining unit occur during a period when the established bargaining unit and the employer are in ongoing negotiations for a successor contract. If the add-on here had occurred during the life of a contract, the Town would have been unable to ask for concessions from the original group of employees and the parties proposals for the new bargaining unit employees would have had to rise or fall on their own. The parties situation is further complicated by the fact that the add-ons are not in separate job classification(s), as is often the case. 2 Here, the new bargaining unit members are in the same job categories as the old, working alongside their counterparts doing the same duties, just for fewer hours. Although this has always been true, historically one group was in a union, the other not. For unknown reasons, the more part-time employees chose to organize in 2011; the only logical place for them was in the same bargaining unit with their colleagues. All employees, PUs and POs, work side by side but now both groups are in the same labor organization, the Association, and will be covered by the same collective bargaining agreement. The ramifications of these events have informed the negotiations process, the parties successive proposals and, not surprisingly, will also impact on the factfinding recommendations. The Town maintains that the cost of adding new members to the bargaining unit should be shared by the Association. The offers it has made, however, particularly the elimination of the shift " 2 A common example of this is when school nurses or counselors are added onto a teacher bargaining unit.

12 Wellesley/Library Staff Association, Factfinding Page 12 of 15 differential, will not cost the Association a thing, it will affect only the workers who have been in the bargaining unit who were not included in the vote to incorporate the PUs. There is nothing in the record regarding how many of those workers actually belong to the Association 3 but all would lose their differentials under the Town s proposal. It is in this light that that proposal must be considered. Working on nights and weekends is considered a hardship by most people because of its effect on personal and family life. This point of view is reflected in the parties contract not only by a shift differential but also by the requirement that for full-time employees, such work is equitably distributed and/or voluntary. Societally, this disruptive influence is acknowledged in many workplaces by paying a shift differential for hours outside the normal workday, usually 8 to 5, and workweek, usually Monday through Friday. I cannot recommend the Town s proposal absent any reason to support it other than offsetting the cost of additions to the bargaining unit. I would recommend, however, that the while the differential be continued for POs, it not be paid to PUs. Apparently, many part-time employees negotiate specific hours of work when they are hired; it is only common sense that this practice is likely to be more common with employees who work very limited hours. In that light, and in light of the extra expense to the Town for the initial incorporation of the new bargaining unit members, it is preferable not to impose an additional cost. " Public sector employees are by law not required to join unions in their workplace although those unions are 3 required by law to represent all employees in a designated bargaining unit.

13 Wellesley/Library Staff Association, Factfinding Page 13 of 15 With respect to the wage scale, it is notable that both parties proposed the same across-the-board increases: 1% in , 1.4% in 12-13, 1% in (POs only; PUs placed on Step 1 of the salary schedule) and 2% in Although they both cautioned at factfinding that these figures were part of a larger package, the framework established by the proposals is the best solution for these parties irrespective of how other outstanding issues are resolved. 4 It should be noted that the 1% for POs in is half of that given to other Town employees in that year (all bargaining units received 2% except police lieutenants and patrolmen who received more). This anomaly has been represented as an acknowledgement of the expense of incorporating new bargaining unit members into the wage scale. It turns out then that the Association, or at least its longstanding members, are indeed to some extent sharing in the cost of enlarging the bargaining unit. The major area of contention is what happens to the PUs once they are placed on the wage scale do they stay on Step 1 forever or do they make prorated step increases as do part-time POs? In most ways, the PUs will continue to be highly differentiated from POs in that the parties agreed that all their benefits, e.g., leaves of various sorts, holidays, etc., will be unpaid as has always been the practice. And if my recommendation is followed, PUs will also not be eligible for shift differential payments. Moreover, they will be given no credit for their years of service in the Library when they are initially placed on the salary schedule although some have worked there more than ten years. " 4 Neither party presented traditional ability to pay evidence.

14 Wellesley/Library Staff Association, Factfinding Page 14 of 15 I see no justification, however, for denying PUs credit for service once they are in the bargaining unit and on the salary schedule. The large majority of the current PUs work 16 hours a week; it would take them more than two years to earn a step whether the work week is deemed 40 or 35 hours. An employee scheduled for 4 hours a week would take ten years to make that move. If their starting date on the schedule is 1 July 2013, as indicated by the parties proposals, no one would make a step during the life of this contract. Finally, we reach the issue of vacations, a provision that has been a thorn in the side of the Town for many years. It is true that the benefit is both long-standing and way out of keeping with current vacation benefits in this country; it probably was an outlier when it was first negotiated decades ago. Many such provisions, most notably health insurance, have been re-negotiated over the years to be less generous than in the past. Such realignment of benefits usually takes place in exchange for something, the sine qua non of bargaining; in past negotiations, the Association has always resisted and the Town has always conceded. Now that the bargaining unit is double in size, the Town is more urgent about this matter. I do not find that this proposal was made in order to pay for the enlarged bargaining unit; it has been on the Town s agenda for many years. The Town s demands, however, represent a seismic shift in the benefit; such an enormous gap in a two-tier system often has unexpected negative consequences, as many employers have learned the hard way. On the other hand, the Association s No, not ever, under no circumstances is out of touch with present reality.

15 Wellesley/Library Staff Association, Factfinding Page 15 of 15 Based on all these considerations, I recommend that the schedule for new employees, hired on or after 1 July 2014, be three weeks after one year under the conditions of Article 9(e) and four weeks after five years. Current employees, both PUs and POs would be grandparented. SUMMARY OF RECOMENDATIONS: I recommend the following: The parties adopt the contract set forth in their Tentative Agreement. The parties adopt a three-year contract with the following salary increases: : 1.5% : 1% for POs; all PUs placed on Step 1 of the salary schedule : 2% on the salary schedule. [Agreement on a fifth year could be beneficial for reasons outlined above but not at the cost of delay.] PUs start accumulating hours towards a step increase effective 1 July 2013 using the same method applied to part-time POs. The shift differential is maintained for POs but not applied to PUs. Effective 1 July 2014, new hires receive three weeks of vacation under the conditions set forth in Article 9(e) and four weeks after five years. Current employees are grandparented. The HRA is extended through calendar year Dated: 22 January 2014 Respectfully submitted, Susan R. Brown,