State of Minnesota Bureau of Mediation Services (BMS)

Transcription

1 State of Minnesota Bureau of Mediation Services (BMS) Arbitration Award Summaries January 2013 The Minnesota Public Employment Labor Relations Act (PELRA), Minnesota Statutes Chapter 179A, governs public-sector collective bargaining in Minnesota. PELRA gives public employees the right to join unions, provides the criteria used to determine appropriate bargaining units, establishes election procedures, and provides mechanisms for resolving disputes that arise with the collective bargaining process. The Bureau of Mediation Services (BMS) oversees labor relations in Minnesota both in the public and private sectors. BMS is responsible for receiving and verifying petitions, determining appropriate bargaining units, and conducting elections. BMS provides training and helps develop labor-management partnerships to address workplace problems and improve labor relations. The BMS helps mediate collective bargaining disputes and maintains a roster of neutral arbitrators individuals appointed based upon their knowledge and experience in labor relations, collective bargaining, and arbitration. Arbitration is a process for resolving disputes outside of the court system (although the processes are similar). Most arbitrations fall within one of two broad categories. Interest arbitration is used when the parties are unable to negotiate a collective bargaining agreement (CBA). The arbitrator s (or arbitration panel s) goal is to reach a decision (or award ) that the parties would have negotiated if they were able to reach an agreement on their own. An interest arbitration award is final and binding on the parties. Grievance arbitration is used to resolve alleged violations of the CBA. All contracts must include a grievance procedure that provides compulsory binding arbitration of grievances (including all written disciplinary actions). The arbitrator s authority is commonly defined in the contract. If the parties do not agree on a procedure, they are subject to BMS s default process. All arbitration awards received are filed at the BMS offices and available on the BMS website. While these awards are fact-, contract-, or employer- and union-specific, they can illustrate trends and may help anticipate how similar issues would be decided in the future. The following awards were issued in January 2013:

2 BMS Case Number: 12-PN-0380 Interest Arbitration Employer: Carver County Union: Minnesota Teamsters Public and Law Enforcement Employees Union, Local No. 320 Arbitrator: Christine Ver Ploeg Date of Award: January 7, 2013 Background The bargaining unit is comprised of 42 members, including 29 Detention Deputies, Dispatchers, and one Terminal Agency Coordinator ( TAC ) Officer. As essential employees, the bargaining unit does not have the right to strike but can request interest arbitration when negotiations reach an impasse. BMS certified 14 issues for arbitration and eight remained unresolved at the time of arbitration. Issues 1. Severance Amount of Severance Per Year 2. Uniforms Amount of Uniform Allowance Detention Deputies 3. Uniforms Amount of Uniform Allowance Dispatcher/TAC Officer 4. Wages Wage Increase for Wages Wage Increase for Wages Is a Market Adjustment Warranted for 911 Dispatchers 7. Wages Amount of Shift Differential 8. Wages Should Step/Range Movement Occur Discussion-Analysis In interest arbitrations, the two primary bases for decision are: (1) determining what the parties would likely have negotiated had they been able to reach agreement at the bargaining table or, in the case of essential employees, to settle a strike, and (2) seeking to avoid awards that significantly alter a bargaining unit s relative standing, whether internal or external, unless there are compelling reasons to do so. These comparisons in turn entail a two-fold analysis: (1) arbitrators consider an employer s ability to pay, and then (2) arbitrators consider the comparability data. This step requires the arbitrator to evaluate the parties proposals in two contexts: internal comparables and external data. 4, 5, 6, and 8. Wage Increase for 2012 and 2013, Market Adjustment for 911 Dispatchers, and Step/Range Movement Employer Position: % wage-schedule increase and 1.0% wage increase to employees whose wage is within the 2011 range, not to exceed the range maximum (July 2, 2012) % wage-schedule increase and 1.75% wage increase to 2

3 employees whose wage is within the 7/2/2012-6/30/2013 range, not to exceed the 2013 range maximum (July 1, 2013) No market adjustment for 911 Dispatchers Union Position: % wage increase for Detention Deputies and TAC Officer, 7.0% market adjustment for 911 Dispatchers currently at the top of the wage scale in addition to 4.0% wage increase, and 4.5% step increase for all employees who are not at the range maximum (January 1, 2012) % wage increase for Detention Deputies and TAC Officer Award: % wage-schedule increase and 1.0% wage increase to employees whose wage is within the 2011 range, not to exceed the range maximum (July 2, 2012) % wage-schedule increase and 1.75% wage increase to employees whose wage is within the 7/2/2012-6/30/2013 range, not to exceed the 2013 range maximum (July 1, 2013) No market adjustment for 911 Dispatchers This award is consistent with the internal comparisons. This is the 2012 wage increase that will be accorded to all County employees other than those represented by the Union. For 2013, this is the same as for all settled contracts for units that have not moved to the Pay for Performance compensation system. This award is also consistent with the parties history of maintaining consistent wage increases within the County. Finally, with this award, the County will also remain competitive within its external comparison group, and this award is appropriate in the current economic climate. The external comparisons fall short of demonstrating a persuasive need to grant the Union s market adjustment proposal for 911 Dispatchers. Despite the Union s belief otherwise, the County Personnel Policy eliminated step increases in 2008, so it is reasonable to conclude that if the parties had intended to resume step payments in 2012, they would have specifically stated that in their labor agreement. 1. Severance Employer Position: Union Position: Award: Increase severance from one half of unused sick leave, 100%, not limited by dollar amount or by years of service after five years Employees who have been employed for at least 20 years may contribute 60% of unused sick leave pursuant to the labor agreement The County s severance pay should be consistent for all employees under the County s traditional sick leave and vacation plans. Thus, employees who have been employed by the County for at least 20 years, and who are otherwise eligible, may contribute the value of 60% of his or her sick leave pursuant to the labor agreement. 2 and 3. Uniform Allowance 3

4 Employer Position: Union Position: Award: Detention Deputies increase uniform allowance from $550 to $650 and increase the amount authorized to carry over from up to $200 to up to $250 from one calendar year to the next; an employee who elects a cash allowance will increase from $275 to $300 Dispatchers/TAC Officer increase uniform allowance from $50 to $325 per year; an employee who elects a cash allowance will receive an increase from $ to $ The current clothing allowance is consistent with that provided to other uniformed County employees. In addition, within the external market it is high for Detention Deputies and low for the 911 Dispatchers and TAC Officer. However, it is also true that in 2010 those latter two classifications gave up a portion of their clothing allowance so that those funds could be applied to their base wages. 7. Wages Shift Differential Employer Position: Union Position: Award: Increase shift differential from $.85 to $.95 per hour The current shift differential is the same amount paid to employees in the licensed Deputy unit and the licensed Sergeant unit. Moreover, the current amount is more than that provided to other bargaining units in Carver County, and is substantially more than the shift differential paid in comparison jurisdictions. Severance Overall Award Employees employed for at least 20 years may contribute 60% of unused sick leave pursuant to the labor agreement Uniform Allowance Wage Increase for 2012 Effective July 2, 2012: increase the maximum of the wage schedules by 0.5%, and provide 1.0% wage increase to employees who wage is within the 2011 range, not to exceed the range maximum Wage Increase for

5 Effective July 1, 2013, increase the maximum of the wage schedules by 1.25%, and provide 1.75% wage increase to employees who wage is within the 7/2/2012 6/30/2012 range, not to exceed the 2013 range maximum Market Adjustment for 911 Dispatchers Wages Shift Differential Wages Step/Range Movement 5

6 BMS Case Number: 12-PA-1219 Employer: City of Duluth Union: AFSCME, Minnesota Council 5 Arbitrator: Stephen Befort Date of Award: January 9, 2013 Grievance Arbitration Background The Grievant, a Utility Operator for the City, is responsible for perform[ing] skilled and semiskilled work in order to install, maintain, and repair the water and gas distribution systems and sanitary and storm water collection systems. The performance of these responsibilities routinely involves heavy lifting and the operation of heavy equipment. In July 2011, the Grievant missed work twice due to an irregular pulse and chest discomfort. In response to the City s request, the Grievant provided a letter from his doctor, stating that the Grievant was medically cleared to work when he had a normal heart rhythm. The City requested that the Grievant submit to a fitness for duty examination to determine his fitness to perform the tasks of his employment, which was consistent with the collective bargaining agreement. The Grievant expressed displeasure with this request and the City informed him that discipline could result if he failed to comply with the fitness for duty policy: The employee must comply with all aspects of the fitness for duty and evaluation procedures, including furnishing necessary consent and release forms to the health provider. Non-compliance may be grounds for disciplinary action and, depending on the situation, up to and including termination. In September 2011, the Grievant attended a fitness for duty examination, which resulted in a report stating that the Grievant was hostile during the examination and found that the Grievant should not operate commercial motor vehicles and heavy equipment but could perform light-duty work until cardiac clearance could be obtained. In October 2011, the Grievant attended a cardiac evaluation, where the Grievant was again hostile and refused to answer questions. The City was notified that the Grievant had not sufficiently complied with the cardiac evaluation to assure that he was safe to return to operating commercial motor vehicles. The city kept the Grievant in a light-duty position. Thereafter, the City issued a five-day unpaid suspension for gross insubordination by refusing to complete the employer-required medical evaluation. The City also directed the Grievant to complete a cardiac evaluation, which he did and was certified to return to work. Issues Did the Employer have just cause to suspend the Grievant for five days? If not, what is the appropriate remedy? Discussion-Analysis The City bears the burden of establishing that it had just cause to support its disciplinary action. This inquiry typically involves two distinct steps. The first step concerns whether the City has submitted sufficient proof that the employee actually engaged in the alleged misconduct or other 6

7 behavior warranting discipline. If that proof is established, the remaining question is whether the level of discipline imposed is appropriate in light of all the relevant circumstances. The Union argues that the fitness for duty evaluation was unnecessary since the Grievant s doctor s letter stated that the Grievant was medically cleared to be at work when he had a normal heart rhythm and did not request future time off due to the Grievant s condition. However, this interpretation does not comport with the plain meeting of the letter. The letter necessarily implies that the Grievant would not be able to work when he experienced an irregular heartbeat. The letter indicated that the Grievant had a serious health condition, and the Grievant s job duties include a safety-sensitive nature. Under these circumstances, the City had a reasonable basis for requesting a fitness for duty examination. The Union also contends the City s insubordination claim because the Grievant attended both fitness for duty examinations and provided information in response to doctor questions. While this is true, the Grievant also obstructed the purpose of the fitness for duty examination by being hostile and providing minimal information. This obfuscation impeded the ability of the doctors to determine whether he was fit to perform essential functions in a safe manner. The Grievant s failure to cooperate made it impossible for the doctor to make an informed conclusion on whether he was capable of performing necessary work functions or to determine if his medical condition imposed unacceptable safety concerns. This intentional misconduct was contrary to the obligations of the Grievant s employment and constitutes insubordination sufficient to warrant the imposition of discipline. The Union argues that the discipline imposed was too severe under the circumstances. The Union primarily relies on the collective bargaining agreement provision that states, except in the case of a severe breach of discipline any suspension, demotion, or removal action shall be preceded by a written warning. The severe breach exception applies here because the Grievant s insubordinate behavior resulted in a two-month period during which the City was unable to determine whether the Grievant could safely perform his assigned job functions. At a minimum, this deprived the City of the Grievant s full job performance. At a maximum, it deprived the City of the capability to determine whether the safe delivery of public services was being compromised. Award The Union s grievance is denied. 7

8 BMS Case Number: XX-PA-XXXX Grievance Arbitration Employer: City of Minneapolis Union: International Union of Operating Engineers, Local No. 70, AFL-CIO Arbitrator: Sharon Imes Date of Award: January 16, 2013 Background In 2011, the City reorganized its water department by consolidating a number of job classifications into two new job classifications: Water Technician and Senior Water Technician. Under its collective bargaining agreement with Local 70, the City was obligated to negotiate over these changes since some of the positions Local 70 represented were affected by this reorganization. During the reorganization, the City stated several times that the Local 70 members detailed to the Water Technician job would receive the non-represented Water Technician rate together with certain premium pay items and that these members would continue to be represented by Local 70. The parties also agreed that Local 363 should represent the Water Technicians and that Local 70 should represent the Senior Water Technicians. The City and Local 363 and Local 70 then reached agreement on the rates of pay for each classification. In November 2011, both Locals were advised that the City, in accord with the unions requests, applied the bargaining agreements retroactively to August 15, Shortly thereafter, the paychecks for the Local 70 members reflected a reduction of 80 cents per hour in the base rate of pay and a discontinuance of longevity and shift differential pay. When Local 70 objected, the City justified its action by stating it had reached an agreement with Local 363 and had applied the terms of that agreement to all detailed Water Technicians. Rejecting the City s justification for the change, Local 70 grieved the reduction in the base pay rate. Issues Is the dispute arbitrable? If so, did the City violate its pay obligation agreement when it reduced the base pay and eliminated longevity pay and the shift differential of seven Local 70 Water Technicians during their period of temporary assignment to that job classification? If so, what is the appropriate remedy? Discussion-Analysis The City argues that the grievance is not properly before the Arbitrator because, among other reasons, the grievance was not timely filed. The collective bargaining agreement between Local 70 and the City required a grievance be commenced within 21 calendar days from the discovery of the grievable event or 14 days from when the event reasonably should have been discovered, whichever is later. While questions about how the Local 70 s employees would be compensated arose much earlier, the record establishes that the Local 70 members detailed as Water Technicians did not receive a paycheck raising the issue before the Arbitrator until at least a week or more after November 6, 2011, which makes the grievance filed on November 29 or 30, 2011 well within the agreement s required twenty-one day limit. Therefore, this grievance is arbitrable. The record also shows that prior to being detailed, employees were told they would receive the non-represented Water Technician rate and in clarifications were told they would be paid shift 8

9 differential and longevity if they were eligible for these premiums. When Local 363 became the exclusive representative for Water Technicians, the Local 70 employees detailed to Water Technician positions became employees detailed from one bargaining unit to another and subject to the pay provisions negotiated by the other bargaining unit. Based upon this accepted practice, it is concluded that Local 70 employees detailed to this position are entitled to the wage rate and any longevity and shift differential that affect the rate of pay received by them. The agreement between the City and Local 363 includes longevity pay for those eligible but no shift differential. Given this fact, it is concluded that detailed Local 70 employees who are eligible should receive longevity pay in accord with the provision in Local 363 s collective bargaining agreement. Furthermore, the Local 363 s collective bargaining agreement provides, the amount, which would otherwise be paid in salary or wages will be contributed... (to) the Laborers International Union of North America National (Industrial) Pension Found as pre-tax employer contributions and that for purposes of determining future wage rates, the Employer shall first restore the amount of the wage reduction... then apply the applicable wage multiplier, and then reduce the revised wage by the pension contribution amount. This language clearly indicates that Local 363 employees are paid an amount based upon a lower wage rate since a portion of that taxable income is converted to a non-taxable contribution to the employees pension fund. This language also indicates that the wage rate is a separately negotiated figure which reflects the amount which would be paid Local 363 employees if they had not opted for a pension fund. Given this agreement, the City is obligated to pay Local 70 members detailed to the Water Technician positions the negotiated rate, and not a rate reduced for the purposes of participating in Local 363 s pension fund. Award The Union s grievance is sustained. The City is ordered to reimburse employees for the wages deducted from the wage rate set forth in the Local 363 October 6, 2011 Letter of Agreement and any longevity payments to which they might be entitled for the Water Technicians between August 15, 2011 and September

10 BMS Case Number: 12-PA-0324 Employer: City of Oakdale Union: Law Enforcement Labor Services Arbitrator: George Latimer Date of Award: January 7, 2013 Grievance Arbitration Background In September 2011, there was a triple homicide at a home in the City. Three patrol officers and one sergeant responded to the call. As time elapsed, the Chief, the Captain, and other law enforcement agencies were also present on the scene, including the Minnesota Bureau of Criminal Apprehension (BCA). The Captain directed the patrol officers to return to the police station to write their reports. At the scene, the BCA requested someone monitor the rear area of the home. At the same time, the Captain happened to receive an offer of help from an off-duty patrol officer, who had the highest overtime within the unit. The Captain accepted this off-duty patrol officer s offer. When the initial patrol officers returned to the scene, they were told they were not needed. Issues Did the City violate the collective bargaining agreement providing that overtime will be as equally as practicable? If so, what should the remedy be? Discussion-Analysis The collective bargaining agreement has a provision that provides, Overtime will be distributed as equally as practicable. The Union makes a good argument that the overtime process set in place is a useful way to avoid giving certain officers an advantage to overtime while disadvantaging others. In normal circumstances, the assignment which occurred in this case might not have occurred. This case manifestly falls outside any description of normal circumstances. A triple homicide had occurred and the BCA had requested additional coverage. The Captain s action was reasonable and expeditious. The Arbitrator should not substitute his opinion for the choice made by a seasoned officer in these circumstances. Therefore, the conduct of the Employer was reasonable and consistent with its contractual duties. The Union s grievance is denied. Award 10

11 BMS Case Number: 12-PA-0355 Employer: Three Rivers Park District, Plymouth Union: Law Enforcement Labor Services Arbitrator: Carol Berg O Toole Date of Award: January 14, 2013 Grievance Arbitration Background The Grievant, a sergeant, contacted another city s police officer about steroids. It is disputed as to if this contact was to purchase steroids or to obtain information about steroids per the request of the Grievant s friend. The contacted police officer reported this incident to his police chief who contacted the Grievant s police chief. The Employer stated that this conduct violated the Employer s policies and procedures and constituted the just cause required for a demotion. Issues Did Three Rivers Park District violate the collective bargaining agreement by demoting the Grievant without just cause? If so, what is the appropriate remedy? Discussion-Analysis The Employer fulfilled the requisites of just cause: did the acts occur and are they sufficient magnitude to justify the demotion. The Employer s policy requires, Sworn staff working a field assignment shall notify Dispatch when they are available for calls or on break/lunch. The Grievant admits that he was on break during the conversation at-issue and he did not notify the dispatcher of this fact. Furthermore, instead of asking another police officer about steroids, the Grievant could have researched criminal statutes or suggested that his friend obtain information about steroids by conducting online research. The Grievant showed a lack of judgment in agreeing to find the answer and in the method he selected to do so. The demotion was delivered quickly is the epitomy of appropriateness. Because it was a swift and clear response to policy violations, especially the failure to exercise judgment, makes it likely to be a lesson well learned. It was clear that the judgment this sergeant should have exercised was missing. Award The Union s grievance is denied. The demotion is upheld. The Grievant violated the Employer s policies and rules when he approached a police officer about steroids. 11