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Fact Finder Pre Hearing Brief Statement_2010

STATE OF OHIO
STATE EMPLOYMENT RELATIONS BOARD

In re the Matter of Fact Finding between: )
                                                                        )
CMAGE/Communications Workers           )          
of America, Local 4502                                 )
                                                                        )          
                        Union,                                     )           Case No. 08-MED-05-0643
                                                                        )
and                                                                  )
                                                                        )           Before: Fact Finder Frank Keenan
City of Columbus,                                         )
                                                                        )
                        Employer.                              )
                                                                        )

FACT FINDING POSITION STATEMENT OF
CMAGE/CWA LOCAL 4502

            This Position Statement is filed in accordance with Ohio Administrative Code Rule 4117-09-05(F).
I.          APPEARANCE
            This Position Statement is filed on behalf of CMAGE/CWA Local 4502 (“Local 4502 or “Union”).  The Local’s principal representatives are:

II.        DESCRIPTION OF THE BARGAINING UNIT
            The bargaining unit is comprised of supervisory and managerial employees employed by the City of Columbus (“City”).  The specific job classifications are set forth in Attachment A and B of the current collective bargaining agreement (“Agreement”).  (Exhibit 1).   Bargaining unit employees are assigned to nearly every City Department, Agency and Board, including Development, Public Service, Public Utilities, Recreation and Parks, Refuse Collection, Transportation and Technology.  Positions are funded through several sources including the City’s general fund, enterprise funds, various fee-for-service funds and state and federal grants.  There are currently approximately one thousand three hundred (1,300) employees in the bargaining unit. 
            The highly skilled professionals represented by the Union are directly responsible for managing and supervising the delivery of a wide range of vital public services, from  safe drinking water to refuse collection, the operation of parks and recreational facilities to care for the elderly, technology acquisition to economic development initiatives.  Individually and collectively, bargaining unit members ensure the efficient delivery of services to the citizens of Columbus.

III.       CURRENT COLLECTIVE BARGAINING AGREEMENT
            The Union and City’s Agreement has an effective date of August 24, 2005 through August 23, 2008.  (Exhibit 1).
IV.       STATEMENT DEFINING ALL UNRESOLVED ISSUES AND THE POSITION OF LOCAL 4502 WITH REGARD TO EACH UNRESOLVED ISSUE                                                                           

            Introduction
The parties have been bargaining for a new contract since the summer of 2008.  On September 24, 2009, the Union’s membership voted to reject a proposed contract proposal. (Exhibit 2).  Following the membership vote, the parties’ representatives held additional meetings in an attempt to reach an agreement.  Many subjects of bargaining have been resolved by the parties in accordance with the rejected proposed contract.  However, there remain several, critical unresolved issues for consideration by the Fact Finder.  The Union’s proposals on all disputed issues are set forth below with reference to the current Agreement or the rejected contract proposal, whichever is applicable.
Negotiations over the economic sections of the rejected contract proposal occurred during the nation-wide economic downturn.  The Union does not dispute that Columbus has been impacted by the recession, particularly in the form of reduced income tax revenues.  Some public services were cut and layoffs occurred.  However, Columbus voters passed an income tax increase in August 2009 that dramatically improved the City’s financial position.  The tax increase (raising the income tax rate from 2% to 2.5%) will result in an estimated $113 million dollar increase in 2010 revenues in the City’s general fund, with some of the revenues available in 2009.   The tax increase results in approximately a 25% percent increase in revenues for the City.   Indeed, the City’s Third Quarter Financial Review (October 30, 2009) indicates that the combination of savings initiatives and revenues from the tax increase “effectively eliminate the 2009 general fund budget deficit …” (Exhibit 3, page 1).  The Union will present evidence that the City intends to restore services, and, in some Departments, increase staffing levels in 2010.  Obviously, circumstances have changed since the Union’s membership rejected a contract proposal on September 24, 2009.  
The City cannot claim credibly that it is unable to pay for the Union’s proposals set forth herein.  The City’s own Third Quarter Financial Review establishes otherwise.  The Union is, of course, mindful of the fact that the entire increase in tax revenue cannot be allocated to bargaining unit members.  Services must be restored and maintained.  The City has contractual commitments to other bargaining units and must provide for its non-union workforce.  All City workers have sacrificed during the economic downturn, and all expect to make up ground, but the Union’s bargaining unit members shouldered a disproportionate burden compared to their peers.  As a result, the City can and should significantly improve wages, benefits and working conditions for the bargaining unit as proposed by the Union.
In 2005, the Union’s bargaining unit received a two percent (2%) PBI, a three percent (3%) PBI in 2006 and a four percent (4%) PBI in 2007. (Exhibit 1).  However, bargaining unit employees have not received a percentage base increase (PBI) since August 23, 2007.  By contrast, the American Federation of State, County and Municipal Employees, Local 1632 (AFSCME) represented employees, whom the bargaining unit supervises and manages, received a 3% increase in 2008 and a 3% increase in 2009 and are scheduled to receive another 3% increase in 2010. (Exhibit 4).  While AFSCME represented employees have continued to receive wage increases since the CMAGE Agreement expired in 2008, the Union’s bargaining unit has fallen behind. 
As of the date of this hearing, an alarming number of bargaining unit employees manage or supervise City employees who receive a higher base wage than they do.  In the Department of Public Utilities, for example, the wage compression problem not only exists, but threatens to expand. (Exhibit 5).  Absent significant wage increases for the bargaining unit, the wage compression problem described above will get worse, not better, over time.  Sound human resources policy and common sense require that the situation be remedied by PBI increases for the bargaining unit.   
Despite the disparity in PBIs, bargaining unit employees made sacrifices for the good of the City and the citizens they serve.  For example, the Union’s bargaining unit members agreed to take five (5) unpaid furlough days in 2009 in recognition of the City’s economic difficulties.  (Exhibit 6).  Absent the Union’s agreement, the City’s only recourse would have been to layoff bargaining unit employees.  However, the likelihood of staggered layoffs (due to the fact bargaining unit members supervise and manage thousands of City employees on a day-to-day basis), the exercise of bumping rights and resulting training costs would have offset a considerable portion of the savings and reduced efficiencies at a time when the City’s finances were hurting the most. 
The AFSCME bargaining unit also agreed to take five (5) unpaid days in 2009. However, those employees had already received 3% PBIs in 2008 and 2009.  Local 4502’s bargaining unit members made sacrifices despite stagnating wages.  Their sacrifices must be recognized in a new contract that provides fair and equitable improvements in compensation.   
Other City employees have received wage increases while bargaining unit members’ wages remain flat.  For example, City employees represented by the International Association of Fire Fighters (IAFF) and the Fraternal Order of Police (FOP) have received or will receive wage increases for 2008 and 2009.  In accordance with a December 2, 2009 fact finding report, FOP represented employees will receive a one percent (1%) increase for 2008, a three percent (3%) increase for 2009, and a three and one-half percent (3.5%) increase in 2010. (Exhibit 7).  IAFF represented employees received a 3% increase in 2008 and a 4% increase in 2009 (IAFF agreed to defer the 4% increase until December 2009) pursuant to a conciliation. (Exhibit 8).  In accordance with a recently negotiated collective bargaining agreement, IAFF represented employees will receive a two and one-half percent (2.5%) PBI in 2010 and a three percent (3%) PBI in 2011.  (Exhibit 9).  Finally, the Union will present evidence that the City granted discretionary wage increases to employees covered by the Management Compensation Plan.   For example, MCP-covered employees assigned to the Department of Public Utilities received salary increases of at least three percent (3%) on or about April 6, 2008.
Based on the above, application of the criteria set forth in Ohio Revised Code 4117.14(G)(7) and Ohio Administrative Code 4117-9-05(J) should result in the Fact Finder recommending that the Union’s proposals form the basis for resolution of all unresolved contract issues.
            A.        Article 11 – VACATION
            Section 11.2(A):
            The Union proposes the following:
            “In addition to the earned vacation accruals, effective no later than two (2) full pay periods after acceptance of this Agreement by City Council, a one-time deposit of thirty-two hours (32) hours shall be added into the vacation bank of each bargaining unit member employed on the date of City Council acceptance of this Agreement.  These hours are subject to all other provisions of Article 11.”
            The City proposes the following:
            “In addition to the earned vacation accruals, effective no later than two (2) full pay periods after acceptance of this Agreement by City Council, a one-time deposit of twenty-four (24) hours shall be added into the vacation bank of each bargaining unit member employed on the date of City Council acceptance of this Agreement.  These hours are subject to all other provisions of Article 11.”
            Section 11.2(B):
            The Union proposes the following:
            “The Maximum Vacation Balance shall temporarily be increased to accommodate the thirty-two (32) hour deposit for those bargaining unit members employed as of the effective date of this Agreement by Council.  Therefore, affected bargaining unit members may utilize the thirty-two (32) hour deposit on or before January 22, 2011.”
            Note: The Maximum Vacation Balance Chart should be adjusted on a one-time basis in accordance with Union proposal.
            The City proposes the following:
            “The Maximum Vacation Balance shall temporarily be increased to accommodate the twenty-four (24) hour deposit for those bargaining unit members employed as of the effective date of this Agreement by Council.  Therefore, affected bargaining unit members may utilize the twenty-four (24) hour deposit on or before January 22, 2011.”
            In support of its proposal, the Union will present evidence that increases to bargaining unit employees’ compensation has not kept pace with other bargaining units, including employees who are supervised and managed by the Union’s bargaining unit members.  (Exhibit 4).  Moreover, bargaining unit employees took a five (5) day furlough without pay in 2009 even though they have not received a PBI since 2007.  By contrast, other City employees who were furloughed for five (5) days received PBI increases in 2008 and 2009.  Therefore, the five (5) day furlough affected the Union’s bargaining unit members disproportionately. The Union’s vacation proposal permits bargaining unit members to make up some ground relative to City bargaining units.  It should also be noted that the Union’s proposal (like the City’s) is temporary in nature.  The vacation enhancements under consideration represent a one-time remedy that effectively terminates on January 22, 2011.   
            The Union proposes that all other changes to the Agreement as set forth in Article 11 of the rejected contract proposal be incorporated into the parties’ new collective bargaining agreement. (Exhibit 2).
B.        Article 15 – HOURS OF WORK AND OVERTIME
            Section 15.4(B):
The Union proposes that the current contract language pertaining to double time be retained without change.  Pursuant to Section 15.4(B) of the Agreement, overtime worked beyond forty-eight (48) hours in a seven (7) day work period is paid at double time rates.
The City proposes to cap double time at fifty-six (56) hours.  Any hours worked beyond fifty-six (56) would be paid at time and one-half. (Exhibit 2).
            The Union will submit evidence that the City’s proposal constitutes an unnecessary reduction in employees’ current compensation.   The Union anticipates that the City will argue that the proposed improvements to Section 15.4(B), namely, “compensatory time and vacation leave will be considered time worked for purposes of qualifying for overtime …” is possible only if the resulting increase in overtime payments is offset by a reduction in double time eligibility   The City’s argument should be rejected by the Fact Finder.  
Under the AFSCME contract, the City treats vacation and compensatory as time worked for purposes of weekly overtime.  (Exhibit 4).   The City follows the same approach for employees covered under the Management Compensation Plan. Given the disparity in PBIs and the existing wage compression problem, the Union’s bargaining unit members should not be required to give back a current economic benefit in order to reach parity with the employees they manage and supervise.   The cycle of one step forward, two steps back must be broken.
            The Union proposes that all other changes to the Agreement set forth in Article 15 of the rejected contract proposal be incorporated into the parties’ new collective bargaining agreement. (Exhibit 2).
            C.        Article 17 – SALARIES AND COMPENSATION
            Section 17.1(A)(1):
The Union proposes the following:
“A three percent (3%) percentage base wage increase (PBI) will be effective at the beginning of the pay period which includes August 24, 2008.  A four percent (4%) percentage base wage increase (PBI) will be effective at the beginning of the pay period which includes August 24, 2009.  A four percent (4%) percentage base wage increase (PBI) will be effective at the beginning of the pay period which includes January 1, 2010.”  
            The City proposes the following:
            “A one percent (1%) percentage base increase (PBI) will be effective at the beginning of the pay period which includes January 1, 2010.” (Exhibit 2).
As summarized above and below, the Union will submit evidence that other agreements approved by the City and fact finding reports not rejected by the City provide for increases similar to those proposed by the Union.  To the extent the Union proposes increases that, in some cases, exceed increases contained in the City’s other recent agreements or a fact finding report, higher increases for the bargaining unit are fair and necessary.  The Union will present evidence in support of higher PBIs for the CMAGE bargaining unit, including evidence of wage compression and disproportionate economic sacrifices by the bargaining unit.   Bargaining unit employees represented by AFSCME, IAFF, FOP, and even employees covered by the MCP, have received significant compensation increases.   The Union’s bargaining unit members deserve fair and equitable treatment when it comes to their compensation.
            The Union proposes that all other changes to the Agreement as set forth in Article 17 of the rejected contract proposal be incorporated into the parties’ new collective bargaining agreement except the first new paragraph of Article 17.1(A)(2).  (Exhibit 2).  The effect of deleting the first new paragraph is that the pay structure will increase in accordance with the PBIs referred to above, subject to 17.1(A)(2).
            D.        Article 14 – Health Insurance Benefits
            The parties tentatively agreed to number of changes to Article 14.  Some of the changes were made solely for the purpose of codifying the current benefits provided by the City to bargaining unit employees.  In other cases, new benefits were added or existing benefits modified that ran to the benefit of the City, the bargaining unit or both sides.   The only issue in dispute concerns the employee contribution to the negotiated insurance base.
            Section 18.2:
The Union proposes to retain the current contract language pertaining to employees’ current nine percent (9%) contribution to negotiated insurance base without change except that all references to employee contributions in preceding years should be deleted. 
The City proposes to increase the employee contribution to ten percent (10%) effective April 1, 2010.  (Exhibit 2).
In support of its proposal, the Union will submit evidence that other agreements approved by the City cap employee contributions at nine percent (9%) of the negotiated insurance base. The AFSCME contract sets the cap at nine percent (9%). (Exhibit 4).  In addition, the City did not reject the recent FOP fact finding report which maintained the current nine percent (9%) contribution where the City proposed to increase it to eleven percent (11%).  (Exhibit 7).  The IAFF contract also caps contributions at 9%.  (Exhibit 8 and 9). 
 The Fact Finder should reject the City’s proposal to increase employee contributions to the cost of health insurance. Obviously, increases in employees’ contribution to insurance will reduce employees’ take home pay.  While a PBI may lessen the blow, the bargaining unit has sacrificed enough already.  The City agreed to three (3) consecutive three percent (3%) PBIs during the term of the AFSCME contract while requiring employees to contribute no more than nine percent (9%) of the cost of insurance premiums.   Moreover, the Union already agreed to a significant cost saving provision in Section 18 in the form of a mandatory prescription drug mail in program.   The current nine percent (9%) contribution level should be maintained.
The Union proposes that all other changes to the Agreement set forth in Article 18 of the rejected contract proposal be incorporated into the parties’ new collective bargaining agreement. (Exhibit 2).
             
                                                          Respectfully submitted,
                                                          CMAGE/CWA Local 4502,

                                                                                                         
                                                          Jonathan C. Wentz, Esq.

CERTIFICATE OF SERVICE

            I hereby certify that on this __ day of December 2009 that the forgoing Position Statement of CMAGE/CWA Local 4502 was to emailed to Frank Keenan at fjkeenan@fuse.net and Ronald Linville, Esq., Baker Hostettler, at rlinville@bakerlaw.com.

                                                                                                                                   
                                                                        Jonathan C. Wentz