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ZOIO DEC - 8 P i2: 3 5

OHIO STATE EMPLOYMENT RELATIONS BOARD CONCILIATION REPORT

December 6, 2010

OHIO PATROLMEN'S BENEVOLENT) ASSOCIATION, CECOMS UNIT, )

Union,

-and-

CUYAHOGA COUNTY BOARD OF COMMISSIONERS,

Employer.

APPEARANCES FOR THE UNION

DANIEL LEFFLER, OPBA Representative GLENN GREENAWALT, Union Director

) ) ) ) ) ) ) ) ) )

CASE NO.: 10-MED-02-0112

JOSEPH W. GARDNER, Conciliator

CONCILIATION REPORT

APPEARANCES FOR THE EMPLOYER

EGDILIO MORALES, Labor Relations Administrator

RODNEY HARRIS, Labor Relations Specialist MURRAY WITHROW, Manager,

CECOMSCTP. MATTHEW RUBINO, Director, Office of

Budget and Management JAMES BATTEGAGLIA, Regional

Director, Archer Co.

INTRODUCTION

A Fact Finding report was issued and filed with the State Employment Relations Board

(SERB), a copy of which is attached hereto as Exhibit A. The Employer timely objected to the

fact finding report. SERB appointed the undersigned as conciliator, and the parties scheduled a

hearing date as soon as was possible.

The representatives of the Employer and union timely submitted position statements.

The parties convened on November 23, 2010. Representatives of both parties waived any

requirement of a court stenographer or a recording device at the hearing. Arguments and

evidence, both testimony and documents, were introduced.

After the hearing concluded, the parties and the undersigned agreed that the conciliation

report was due on or before December 23, 2010. The parties agreed to be served with the

conciliation report via email and regular U.S. mail.

FACTS

The Employer is the County Commissioners of Cuyahoga County, Ohio (BOCC). The

Union is the Ohio Patrolmen's Benevolent Association (OPBA). The Bargaining Unit, the

Emergency Medical Services Communication Operators of the Cuyahoga County Emergency

Services Division of the Department of Justice Affairs (hereinafter referred to as CECOMS),

consists of seven (7) full time employees and seven (7) part time employees. The Bargaining

Unit's primary duty is to answer the emergency cellular phone calls (911 cell phone calls) and

connect those calls with the proper emergency service.

The employer states that the county has suffered significant decreases in revenue and

funding with flat or increasing expenses. This has led to an expense reduction campaign. The

employer, Cuyahoga County, has shed ten percent (1 0%) of the workforce. All in all,

approximately nine hundred (900) people have been taken off of the payroll. Funding for all

programs, such as elderly, parenting, and education programs have been cut. All of the other

bargaining units have accepted zero (0) wage increases or layoffs or both. The non-bargaining

employees have had four ( 4) consecutive years without a wage increase. In spite of the dismal

financial forecast of the Employer's budget, the employer concedes that the fund used to pay this

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bargaining unit is separate from the Employer's general fund and sufficient to pay for the

demands of the bargaining unit. In other words, the Employer has an ability to pay.

A tax is imposed on everyone's cellular phone bill. The proceeds of this tax are

designated to fund only the same kinds of operations and bargaining units as this department and

bargaining unit throughout Ohio. Cuyahoga County's share of this fund is one of the highest

shares, if not the highest share, in the state. These funds may only be used to fund operations

similar to the operations performed by this Bargaining Unit. With the dramatic increase in the

use of cellular phones, the fund has grown in spite of the dismal economic times.

The Employer warns, however, that the tax, which is levied on everyone's cellular phone

charges, ends, or "sunsets", on December 31, 2012. After the funding "sunsets", no one really

knows how this department and bargaining unit will be funded.

The Employer opines that the costs of operating this service, after December 3 I, 20 12,

will be the full responsibility of the County and paid from the County's general fund. In light of

the dismal economic times, a pay increase would further deplete a shrinking County fund,

assuming a continued dismal economy, and/or assuming the tax on cell phone bills is not

extended.

However, the main thrust of the Employer's argument is how this proposed pay raise will

affect the other workers. The Employer's position relies heavily on the "morale" of the

workforce. The Employer argues that it would be demoralizing for a small group of employees

to receive an increase in pay when everyone else is awarded zero pay increases, must accept

furlough days and/or is laid off. 1

1 It is interesting that throughout the entire presentation, no one mentioned a reduction in pay rates because of the decrease in the general fund. ··Furlough Days·· have somewhat the same effect as a reduction in rate of pay. but the pay rates remained fixed even though the money available to pay wages has decreased in size.

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The Employer argues that the CECOMS employees are not true dispatchers, but are

merely "call takers" who "pass through" calls to the true dispatchers once the CECOMS

employee determines the location and message from the caller.

James Battegaglia, a human resources expert, studied the duties of CECOMS employees.

He found that CECOMS employees spent almost ninety (90) percent of their time "routing calls"

to the appropriate service provider. He opined that their duties were that of an entry level job

which regulated them to a "lower level" than a regular dispatcher. This expert witness tried to

convey the message that the services provided by the employees of this Bargaining Unit were

less skilled than those who were regular dispatchers. On cross examination Battegaglia

conceded that a report in 2008 states that CECOMS employees were underpaid.

Murray Withrow, manager of CECOMS for five (5) years, stated that the operation is not

a primary dispatch, but a 911 answering point. He opined that it is a unique operation.

The Employer protests that the fact finder gathered facts after the fact finding conference

(the hearing) was closed. The Employer states that after the hearing was over, the fact finder

obtained information from SERB regarding the pay or pay rates of dispatchers. The fact finder

then compared the pay of the employees of this Bargaining Unit to dispatchers in other

jurisdictions. The Employer was unable to challenge or respond to this information. Since the

Employer claims that this bargaining unit is "different" or at a lower level from other dispatcher

units, the comparisons made by the fact finder were inaccurate or misleading. The union argues

that there is nothing in the statutes or rules prohibiting the fact finder from obtaining relevant

facts after the close of the Fact Finding conference.2

2 This issue is one debated among neutrals and advocates. The resolution of this issue would more specifically define the role of the fact finder in this statutory process. Neither side presented any statute. rule or case specifying

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The Union states that the fact finder fairly explained both sides in a report of eleven (11)

pages, and the fact finder considered all the facts and arguments presented by the employer. The

Union states that the fact finder stated that the fund that is used to pay this Bargaining unit has

ample funds to do so and has ample funds for the proposed wage increase. According to law,

these funds are to be spent for compensation of this bargaining unit. The cost of the proposed

increase, $40,000.00, is easily affordable by the Employer from this fund.

In reviewing the County's economic condition, the Union introduced evidence that

despite the past financial problems with the County, the present economic indicators are

favorable. Sales tax reports indicate that county finances are on an upturn.

Although the dispatchers in this bargaining unit are somewhat different than the standard

dispatcher, these bargaining unit members provide services that the traditional dispatchers do not

provide. The Union argues that the services provided by this Bargaining Unit are just as

important and takes just as much skill as "regular dispatchers".

The Employer relies heavily on the fact finding report of the Teamsters and the Cuyahoga

County Engineer dated October 19, 2010. Those sanitary engineer bargaining unit members,

too, are paid from a funding source that in some ways are similar to the funding source for

CECOM employees .

. . . It is the case that the Sanitary Engineer is not supported by general revenue funds. It is operated via an enterprise fund. That fund is generated by monies received from customers of the Sanitary Engineer in the various communities it serves. No monies are remitted to the general fund of the County ... Financial data ... indicates the Engineer is in sound fiscal condition ... " In the Matter of F actfinding between International Brotherhood of Teamsters, Local 436 and Cuyahoga County Sanitary Engineer, Harry

if a fact finder is permitted or prohibited from gathering evidence (i.e. finding facts) outside or after the fact finding conference.

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Graham, Factfinder, p. 2.

Growth in revenues of the Sanitary Engineer depends, in no small part, on gro'.V'th in

residential and commercial real estate. The Employer, in this case, painstakingly and

persuasively introduced credible evidence of the dismal real estate market in Cuyahoga County.

The funding sources of this bargaining unit and the bargaining unit of the Sanitary

Engineer employees are similar, but not the same.

In this conciliation, the bargaining unit members are funded by a "charge" or tax levied

on a cellular customer's monthly bill reportedly in the amount of approximately twenty-eight

(28) cents. This tax on the cellular customer's monthly bill will "sunset" or end on or about

December 31, 2012. The employer opines that the "tax" on the cellular phone bill will not be

renewed by the Ohio legislature and that funding for this unit will fall upon the general fund of

the county.

The fund that pays for the Sanitary Engineer's employees is not the general fund, but a

fund that depends upon fees charged for Sanitary sewers. Because the Sanitary Engineer's fund

is not funded by the general fund, said fund is similar to the fund that supports CECOMS.

The union introduced evidence that, in the last decade, the use of cell phones have

increased exponentially while land lines have actually decreased. In spite of the recession, no

evidence has been introduced that the use or number of cell phones has decreased. As a result,

the fund that supports CECOMS employees has gro'.Vn dramatically.

The issues before the fact-finding in this case versus the issues before the fact finders in

the Sanitary Engineer's case are distinguished by another factor. The fact finder in this case had

one issue, wages. The fact finder in the Sanitary Engineer's case had five (5) issues:

I. Hours of\Vork and Overtime

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2. Temporary Transfers

3. Promotions and Vacancies

4. Wages and Step Increases

5. Duration

All of the above issues are financial issues or somehow impact the finances of the

employer and the employees.

The work done by the Sanitary Engineer employees and the duties performed by this

bargaining unit could not be more dissimilar.

The Employer urges "pattern bargaining" when the facts show that the other Bargaining

Units received no increases.

The Employer strategically and accurately proves that all the other units in the county

have zero (0) increase in pay or layoffs or both. Because all of the other units have had zero (0)

pay increases, the Employer, the BOCC, states that this unit should also get zero (0) increases.

Because the funding sources of all the other units are problematic, the Employer argues

this unit should not receive any increases in spite of the fact that the funds are available and in

spite of the fact that the request appears financially reasonable. Because the funding sources of

the other Bargaining Units are do'Wn, the Employer maintains that this Unit should also ask for

and receive no increases in pay.

As was stated earlier, the Employer, BOCC, states that if this Bargaining Unit

(CECOMS) receives a raise, it will damage the morale of the other bargaining units (and the

unclassified workers) because all of these workers received no raises and concessions or layoffs.

The Employer suggests a reverse '"me too., clause: If the other departments are having problems

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and must take freezes or concessions, this unit must take on the same freezes or concessions.3

Otherwise, the Employer argues that problems with morale will rise and will be detrimental to

the county workforce.

Report:

The Employer cites the following paragraph from the Sanitary Engineer's Fact Finding

It would be incongruous if members of this bargaining unit received a wage increase while their colleagues elsewhere in the county service did not. A feature of situations characterized by multiple bargaining units is an attempt by the parties to secure standardization of the terms of agreements. It should not be expected that absent extraordinary circumstances one group would secure more favorable treatment than others working for the same employer. Of course, the Union argues that as the County Sanitary Engineer has access to non-General Fund Revenues it may deport from the pattern in County service. I disagree. Across the nation, bargaining units that are independently funded are held to the pattern established by the employer in its various negotiations. See, Position Statement of Employer, p. 8 citing Cuyahoga Sanitary Engineer and Teamsters Local436, Fact Finding Report.

The Employer relies heavily on the reasoning in the above fact finding report.

That fact finding report relies heavily on "pattern bargaining". The undersigned

understands "Pattern Bargaining" as an extension of the "me too" clause. If one

bargaining unit receives a benefit or concession another internal bargaining unit should

receive the same benefit or concession.

DISCUSSION

The Ohio Legislature did not specifically include "me too" clauses and "Pattern

Bargaining" in the fact-finding/conciliation process. The Legislature enacted the following

factors to be considered in labor negotiations and in the fact finding/conciliation process:

1 Usually a particular bargaining unit demands a clause in a contract stating that if another bargaining unit is awarded an increase in pay or benefits. this particular unit will also receive the same increase in pay or benefits. Thus, the phrase, "me too" clause.

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1. Past Collective Bargaining Agreements, if any, between the parties;

2. Comparison of the unresolved issues relative to the employees in the

bargaining unit with those issues related to other public and private

employers 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 employer

to finance and administer the issues involved, and the effect of the

adjustments on the normal standard of public service;

4. The lawful authority of the public service;

5. Any stipulations of the parties; and

6. Such other factors not confined to those taken into consideration in the

determination of issues submitted to mutually agree upon dispute

settlement procedures in the public service or in private employment.

As was stated earlier, the fact finder in the Sanitary Engineer case was confronted with

five (5) major economic issues. And, although the Sanitary Engineer's funding source is

independent of the general fund, the Sanitary Engineer's funding source is ultimately dependent

upon population and the real estate market. With decreasing population coupled with a "soft"

real estate market, construction slows down. Without new construction, both commercial and

residential, the fees that are the life blood of the Sanitary Engineer's office decline. Funding

sources are then stagnant or on the decrease. Cuyahoga County, like the entire Northeastern

Ohio area, has experienced a loss of population and a weak real estate market for approximately

the past two (2) years. This dismal economic climate has hurt most all financial sectors. The

growth in the use of cellular phones is one financial sector that appears to be unaffected by the

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dismal economic conditions. Unlike the County's General Fund, the fund that services the

department of this Bargaining Unit, CECOMS, has been unaffected by the area's financial

condition. This factor constitutes a distinct dissimilarity between the Sanitary Engineer's

Employees and CECOMS as well as a more distinct dissimilarity between all of the other

bargaining units and CECOMS.

The fact finder in this case considered all of the factors and evidence presented.

The Employer protested that the fact finder obtained evidence after the fact finding

conference had concluded. See, Pre-hearing statement of the Cuyahoga County Board of

Commissioners, p. 9. According to the Employer, after the hearing, the fact finder obtained

reports from SERB. Because the fact finder obtained this information after the hearing was

closed, neither party was able to respond or comment about the information.

The Employer states that the Fact finder obtained "information on the \VTong job

classification". I d.:

... The classification of Dispatchers and Wireless Dispatchers for which the Fact Finder independently obtained evidence are used by primary dispatch operations around the state and are not an appropriate comparison for the job performed by the bargaining unit employees of the Cuyahoga CECOMS operations - which is a pass through operations, not a primary dispatch center. See, Employer's Position Statement, p. 9.

The duties performed by this bargaining unit are primarily to pinpoint where the caller is

calling from and then connect or route the caller to the dispatcher of the appropriate service

provider. In addition, the bargaining unit provides the following services set forth in Union

Exhibit 9 (Exhibit D, attached hereto), a copy of which is attached hereto. The main duty of this

Bargaining Unit is to provide a prompt communication link between a citizen in distress and

services to aid that citizen.

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The duties between a dispatcher and a wireless dispatcher are somewhat different, but

similar. Dispatchers and ""ireless dispatchers are not exact copies, but they are "comparable".

The fact finder in this case accurately compared the wages of this bargaining unit's

members to other, similar or comparable positions. Historically, this unit has been underpaid.

In the fact finding report, the fact finder impartially summarizes the Employer's position.

See, Fact finding report, pp. 1-8. The same was done with the Union's position. See, Fact

finding report, pp. 8-9.

In the "Discussion" segment of the Fact Finding report, the fact finder acknowledges the

dismal "economic indicators" but accurately points out the history of underpayment of this

bargaining unit's members. The fact finder also points out the increasing wireless 911 fund

balance and the specific places where these funds are to be spent pursuant to state statute. The

fact finder also recognized the morale issue. On the morale issue, the fact finder makes the

following observation:

.. .If the usual revenue sources were producing budgetary surpluses for the General Fund and the Wireless 911 Fund revenues were in serious decline, one wonders of the Employer would offer the CECOMS dispatcher wage increases in contract negotiations. See, Fact finding Report, p. 13.

The fact finder in this case recognized the morale as a consideration in this case. He did

note that the "morale" argument could not be the Fact Finder's only consideration.4

SUMMARY

These are difficult times for all of us in Northeastern Ohio. The fear of how other

bargaining units will "feel" if this bargaining unit is awarded a modest but deserved pay increase

is the main issue. The fund from which the increase will come will not financially impact

'The "morale issue" is not specifically mentioned in the factors set forth in 4117.14 (C)(4)(e) and (G)(6)(7)(a)-(t), although. the fact finder and the undersigned recognize the importance of morale in the workplace.

I l

anyone else. This fear is coined "morale" by the Employer.

The Employer fears of what will happen when the fund used to pay this bargaining unit

"sunsets". All parties should be aware of this issue and should be planning and working now for

a way to reasonably fund the services now provided to this Bargaining Unit, if the state

legislature allows the funding source to "sunset". .

The Fact Finder, in his report, recognized all the pertinent issues, thoroughly examined

the facts, and made a reasonable recommendation.5

CONCILIATION

The last best offer of the Union shall be part of the collective bargaining agreement

between the parties. Said last best offer is located on pages sixteen ( 16) and seventeen ( 17) of

the Fact Finder's report of August 23, 2010 and filed with the State Employment Relation Board

on August 24, 2010. A copy of the Fact Finding Report is attached hereto as Exhibit A. The

Position Statements of the Employer and the Union is attached hereto as Exhibits B and C,

respectively. The duties of the Bargaining Unit are attached as Exhibit D.

nciliator 4280 Boardman-Canfield Rd. Canfield, OH 44406 Phone: (330) 533-1118 Fax: (330) 533-1025 Email: jwg1118(a)sbcglobal.net www.JWGardnerLaw.com

CERTIFICATE OF SERVICE

I certify that this Conciliation Report has been sent by email and/or regular U.S. mail to

'The fact finder did not recommend everything that the Union demanded at the fact finding. 12

the representatives of the Cuyahoga County Board of County Commissioners and the Ohio

Patrolmen's benevolent Association this~~ay of~. 2010 as set forth below.

The parties requested email and regular mail in lieu of overnight mail, return receipt requested.

EGDILIO MORALES, ESQ. Division of Labor Relations

Board of County Commissioners 1255 Euclid Avenue, Suite 310

Cleveland, OH 44115 emorales@cuyahogacountv.us

DANIEL J. LEFFLER, ESQ. Ohio Patrolmen's Benevolent Association

1014 7 Royalton Road, Suite J North Royalton, OH 44133 danielleffler@sbcglobal.net

I certify that on the&~ay of J,~ 2010 a copy of this Conciliation Report has

been sent to SERB via regular U.S. mail as follows:

J. RUSSELL KUTH, ADMINISTRATOR State Employment Relations Board

65 East State Street, Suite 1200 Columbus, Ohio 43215-4213

~tfL~t1ao;o Date

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Conciliator 4280 Boardman-Canfield Rd. Canfield, OH 44406 Phone: (330) 533-1118 Fax: (330) 533-1025 Email: jwg 11181al,sbcglobal.net www.JWGardnerLaw.com

...

In the Matter of Factfinding

Between

International Brotherhood of Teamsters, Local436

And

Cuyahoga County Sanitary Engineer

APPEARANCES: For IBT Local 436:

Chris Pavone, Vice-President IBT Local436

Basil W. Mangano Mangano Law Firm

Before: Harry Graham

For Cuyahoga County Sanitary Engineer:

Dale F. Pelsozy, Assistant Prosecu~ing Attorney Cuyahoga County .Prosecutor's Office

Shannon M. Gallagher, Director of Legal and Government Affairs Cuyahoga County Engineer

INTRODUCTION: Pursuant to the procedures of the parties a hearing was held in this

matter before Harry Graham. At that hearing the parties were provided complete

opportunity to present testimony and evidence. The record was closed and the

conclusion of the hearing in Cleveland, OH. on October 1, 2010.

ISSUES: The following represent the issues in dispute between the parties: EXHIBIT

lA 1. Article 13, Hours of Work and Overtime, Sections 1 and 4 2. Article 22, Temporary Transfers 3. Article 26, Promotions and Vacancies

1

4. Article 32, Wages and Step Increases 5. Article 39, Duration

BACKGROUND: This proceeding concerns the Cuyahoga County Board of

Commissioners, Division of Sanitary Engineering (Sanitary Engineer) and Teamsters

Local 436. The Union represents a bargaining unit of about 54 people in eight job

classifications. The pre-existing Agreement expired on December 31, 2009.

It is the case that in common with governments throughout the nation Cuyahoga

County is facing a decline in revenue. At the hearing financial information regarding the

County was presented by Matt Rubino, Budget Director. (Er. Ex. 1 ). The County is

currently confronted with both cyclical and structural declines in its resources. Revenues

available to the General Fund of the County trended downwards in the first decade of

the present century. Reflecting the 2008-2009 recession revenues dropped significantly

in both years. A two million dollar rebound is expected for 2010. That is insignificant in

the larger scheme of County finances. In 2009 the County ended its fiscal year with an

operating deficit in the General Fund. Those deficits are expected to continue in 2010,

2011 arid 2012.

Notwithstanding the difficult ebonomic situation confronting the County, that

situation is not relevant to this matter. It is the case that the Sanitary Engineer is not

supported by general revenue funds. It is operated via an enterprise fund. That fund is

generated by monies received from customers of the Sanitary Engineer in the various

communities it serves. No monies are remitted to the general fund of the County. (Un.

Ex. 6, p. 129). Financial data (Un. Ex. 3) indicates the Engineer is in sound fiscal

condition.

2

ISSUE 1, ARTICLE 13, HOURS OF WORK AND OVERTIME, SECTIONS 1 AND 4

.POSITION OF THE UNION: Article 13, Section 1 is concerned with the work week. It

provides the Employer may not establish a standard workweek to include Saturdays

and/or Sundays without the expressed, written consent of the Union. This provision has

been in the Agreement for many, many years. At least one other represented group

within the Sanitary Engineer has the same provision. Further, similar provisions are

found in comparable operations in Ohio. Thus, the Summit County Engineer has a

similar provision as do the Engineer operations of Henry and Guernsey Counties.

Employees have come to rely upon a Monday- Friday standard workweek.

There is no evidence that Article 13 has hindered service to customers of the

Sanitary Engineer. Nor is there evidence the Employer has incurred burdensome

overtime. In 2009 weekend work amounted to 8% of house calls. Thus far in 2010 it has

been 7%. The Employer cannot allude to a problem with Article 13, Section 1. As that is

the case, it should not be changed according to the Union.

Article 13, Section 4 deals with camp. time. The Union is proposing a change in

camp. time accrual to 16 or 20 hours depending upon the work schedule of the

employee. Other employees in County service have that accrual rate and members of

this bargaining unit should not fare less well the Union contends. The Union is also

opposed to the proposal of the Employer on this issue.

POSITION OF THE EMPLOYER: The Employer is proposing change in Article 13,

Section 1. It desires to strike existing language commencing with the words

"Notwithstanding the foregoing ... • and ending with the sentences "The normal work

week shall be Monday to Friday of each week. The normal work day shall be from 7:30

3

a.m. to 4:00p.m. inclusive of a thirty (30) minute lunch period." It would replace the

stricken language with:

Notwithstanding the foregoing, the standard work week for all full-time employees covered by this Agreement shall be forty (40) hours, exclusive of a one-half hour lunch period. The work week shall be computed between 12:01 a.m. on Sunday of each calendar week and 12:00 midnight the following Saturday.

In 2008 Parma became a customer of the Sanitary Engineer. Parma is a large

community and its addition represented a substantial increase in the workload of the

Engineer. Fourteen new employees were hired and shift changes were instituted for the

Sewer Maintenance Department with the advent of a four, ten hour day schedule

Monday through Thursday and Tuesday through Friday. Productivity has increased but

the increase is insufficient to cope with the increased workload. Thus, the proposal for

change. Further, costs would be reduced with the anticipated reduction of overtime.

Given the difficult finances of its clients, that would assist the Sanitary Engineer in

retaining its customers and securing new ones.·

The Employer proposes no change in the current language of Article 13, Section - --- ·- ---- - --- ---· - ... . . ---- ·- ---- ---.-- ---------------- --- --·· .. - .... ---- .•.. ----· ------------- ---·- ,. .. - ----

4. It has not caused problems and, in the opinion of the Employer, provides sufficient

compensation for employees required to work overtime. (Employer brief, p. 6. At page 4

of the brief a change is proposed by the Employer. I have relied upon the text in the

brief as expressing the position of the Engineer).

Employees of the Sanitary Engineer have substantial paid off-duty time. As

viewed by the Employer, this has resulted in an excessive use of sick leave. The

change proposed by the Union will likely result in more unscheduled time off work, thus

increasing costs and imposing operational difficulties. No change is warranted in

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Section 4 under these circumstances according to the Employer.

DISCUSSION: It is the case that tradition as well as the Ohio Revised Code, Section

4117, utilizes criteria to guide factfinders in evaluating the proposals of the parties. For

instance, reference is made to the ability of an employer to finance the proposals of the

Union, the interest and welfare of the public and past collective bargaining agreements.

The weight assigned to the various criteria differs from issue to issue depending upon

the view of the neutral. In general, it is important for a party seeking change in contract

language to convincingly support its proposal with reference to costs and expected

benefits. In this situation neither party has been able to produce persuasive rationale for

change.

Article 13, Section 1 has been in place for many years. It goes back to the initial

Agreement between the Sanitary Engineer and its unionized employees. It confers a

highly valued benefit. Employees have organized their lives and the lives of their

· families around the concept of weekends off duty. Nor is the case that overtime is . .

burdensome to the Employer. The Union indicated that overtime amounted to 8% of . -------·-- -----------------------·- --------------- -------------------------- ··--- - ·- --

house calls in 2009 and is running at about the same rate thus far in 2010. Those data

do not establish a reason to recommend change in a benefit of longstanding to

employees. It is the fact the Employer offered to purchase the change it is seeking in

Article 13, Section 1 during negotiations. Its offer was soundly rejected by members of

the bargaining unit. Thus, the history of bargaining on this issue supports the concept of

no change in Article 13, Section 1. No change is recommended in the current contract

language of Article 13, Section 1.

Similarly, Section 4 does not warrant change. The existing benefit is not out of

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the ordinary. Employees do have substantial time off duty. If the Employer views use of

sick leave to be excessive it has means of controlling such use other than change of

contract language. No change is recommended in Article 13, Section 4.

ISSUE 2, ARTICLE 22, TEMPORARY TRANSFERS

POSITION OF THE UNION: The Union proposes adding language to Article 22 which

· would require the Employer to give the most senior qualified employee the right of first

refusal with respect to a temporary transfer. Should a senior qualified employee not

accept such a transfer the Employer would be able to select the least senior, qualified

employee.

The Union points out that the Sanitary Engineer has negotiated such a provision

with another represented group of employees and it sees no reason why employees

represented by IBT Local 436 should not enjoy this benefit.

POSITION OF THE EMPLOYER: The Employer proposes no change in the existing

language of Article 22. Its operation has not posed problems for either party in its view.

The Sewer Maintenance Department of the Sanitary Engineer has five crews. --- ----------------·-····-···- ------·- ·---~---·--·---------·-···---·· -------------- ·-- -----···-··-···-----· --- ..

These are: House, Sewer Jetting, Inflow and Infiltration, Sewer Construction and TV

Inspection. Should the proposal of the Union be adopted it would require establishment

of five seniority lists as employees are not able to perform all task associated with all

crews.

Article 3 is the Management Rights article of the Agreement. Section A permits

the Employer to "transfer" employees. If the proposal of the Union finds its way into the

Agreement the management rights of the Employer would be compromised. That

should not occur it asserts.

6

DISCUSSION: The proposal of the Union is unpersuasive. The parties have operated

with the present language for many years. No problems were alluded to by the Union.

That one group of represented employees has the benefit sought by Local 436 is

insufficient to overcome the history of the language in the Agreement. No change in

Article 22 is recommended.

ISSUE 3, ARTICLE 26, PROMOTIONS AND VACANCIES

POSITION OF THE UNION: The Union proposes that promotions and vacancies (non­

entry level) be filled by seniority. Seniority is an objective criteria that eliminates

favoritism and ensures long-serving employees are rewarded for their service. Thus, its

proposal on this issue should be recommended in the view of the Union.

POSITION OF THE EMPLOYER: As was the case with Issue 2 above the Employer

proposes no change be made to the Agreement. The operational structure of the

Sanitary Engineer is again cited in support of this position. With five different crews the

most senior person may not be able to perform the tasks associated with work on a

dif!f:l~e.~t_?::V't: !":J_is~~ry ?! _(JP~ra~ons in th_e S_a!lit~l)_' ~~~i~~~r.s _o!!i~~--supp~rts !Is

position according to the Employer. There have been no difficulties with the operation of

Article 26. No grievances over it have been filed. Thus, no change should be

recommended the Employer urges.

DISCUSSION: For much the same reasons as set forth above, the proposal of the

Union is not recommended. A party proposing change in contract language bears the

burden of showing why the existing language is unsatisfactory. The Union did not make

such a showing with respect to this issue. Strict seniority clauses for promotion and

vacancies are unusual. Normally an employer is provided leeway to consider factors

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such as those itemized in Article 26, Section 2, ·e.g. experience and training. Further,

the Agreement provides at Article 26, Section 3 that "If the Employer determines that

two employees are equally qualified for the position, the employee with the most agency

seniority shall receive preference for the position." Such language is common in

collective bargaining agreements. That grievances over its. application ,have not been

filed suggests it has worked satisfactorily. No change in Article 26 is recommended.

ISSUE 4, WAGES AND STEP INCREASES

POSITION OF THE UNION: The Union proposes four percent (4.0%) increases over

the life of the Agreement. It is the case that the recession is over. That said, and as

noted in the Background section of this report, the state of the economy as well as the

financial situation of the County is irrelevant to this matter. That is because general fund

revenues do not support the. Sanitary Engineer. Its operation is funded by fees paid by

users. No doubt exists concerning the healthy financial status of the Employer.

It is the case that the Sanitary Engineer's operations are expanding. As indicated

. . a~oyE),. ~arml'l h~.s. become a C::liStorn~r ~of _th~~-~f1il~ry ~ngillE)~r. IIJ ~~lldl~.the ..

increased workload associated with Parma the Engineer has had to increase staff.

As a response to its fiscal condition Cuyahoga County instituted an Early

Retirement Incentive Program. (ERIP). Employees of the Sanitary Engineer were

prohibited from participating in that program. Litigation ensued1 which determined the

Employer had improperly excluded its employees from participation in the ERIP. In its

defense the Employer indicated it did not offer the ERIP to its employees because it

was not laying off employees but rather was hiring,

1 State of Ohio, ex ref Teamsters Local Union No. 436 v. Board of County Commissioners, Cuyahoga County, Ohio, Case No. CV-714389

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Only one community, Parma Heights, has ever terminated !he services of the

Sanitary Engineer. 2 Further, the Employer has increased rates very modestly over the

past decade. That notwithstanding, it has been able to improve its fiscal position as its

carryover balance has increased.

During the life of the past Agreement the Sanitary Engineer conducted some

reorganization of its workforce. Duties performed by employees have been increased.

Further, in the Jet and Construction Departments there is one less Equipment Operator

per crew. In place of the equipment operator !he Engineer is using people in the Sewer

Line Maintenance classification. Such people typically have less experience than

Equipment Operators, resulting in increased work for operators.

It is the case that some jurisdictions have agreed upon wage increases. The

Engineer's in Mahoning, Summit, Portage and Lucas counties have provided increases

of 3%, 3%, 3% and .50 per hour respectively. The Northeast Ohio Regional Sewer

District made a 2% increase for 201 0 and 2011. Under these circumstances a wage

·· fricrea-se-is-wiirranied aci:orarng.to-ttieUn1iin~ ·

There is currently a seven year wage progression in the Agreement. For the first

four years of employment new employees are paid 75% of the full rate. This gradually

increases until a new employee reaches 100% at seven years. Two groups of

employees of the Cuyahoga County Engineer and the Sanitary Engineer have a five

year progression to top step. Members of this Bargaining Unit should not fare less well

the Union contends.

At Article 32, Section 2 the Agreement permits the Employer to alter negotiated

2 Aecording to the Union Panna Heights still receives some services from the Sanftary Engineer, Union Blief, p. 4.

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rates to cope with "operational needs." It occurred that the Sanitary Engineer brought in

an employee at a rate higher than more senior employees. Such a situation is unfair

and has fostered resentment. The language should be eliminated according to the

Union.

POSITION OF THE EMPLOYER: The Employer proposes there be no wage increase

for 201 0. Wages for 2011 and 2012 would be subject to reopener negotiations.

Recent history concerning wage increases (or the lack thereof) in the County is

relevant to this situation. Non-bargaining unit employees of the County have not

received a wage increase for three years. (2008, 2009 and 201 0). They were also

ordered to take three unpaid furlough days in 2009 and five in 2010. Many bargaining

unit employees were subject to furlough days as well.

It is the case that County services have been reduced. For instance, the Ohio

State University Extension program has been eliminated. Many services for children

have been cut. Given the economic circumstances the County today is far different from

the County of three years ago.

The Sanitary Engineer serves various communities in the County. These

communities are divided into Sewer Districts and the funds for each District are divided

into various accounts: Sanitary Funds, Storm Water Funds and Water funds. These

funds cannot be comingled. Thus, monies available in a healthy account are not easily

accessible to fund less robust accounts.

Notwithstanding the independent source of funds for employees of the Sanitary

Engineer a wage increase should not occur in 2010. Other employees of the County

have not had wage increases, some for several years. Should members of this

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bargaining unit be granted wage increases it would be destructive of morale across

County service. Thus, the Sanitary Engineer urges no wage increase for 2010 and

reopener negotiations for 2011 and 2012.

The Union proposal to eliminate Article 32, Section 2 should be rejected

according to the Employer. During the life of the expired Agreement the Union secured

large wage increases. There was a quid-quo-pro for those increases; the incremental

movement to top step. Further, the language of Section 2 provides it "shall not be

bargained away in the future." That agreement provides a guide for resolution of this

issue. The parties reached a deal which the Union now seeks to alter. It secured healthy

wage increases and now wants to alter the basis upon which it received them. That

should not be permitted to occur the Sanitary Engineer asserts.

DISCUSSION: It would be incongruous if members of this bargaining unit received a

wage increase while their colleagues elsewhere in County service did not. A feature of

·situations characterized by multiple bargaining units is an attempt by the parties to

secure ·sleinaaraizaliorf ofthe-teiiils· of agreementlCitshoula not ·oe expectea that

absent extraordinary circumstances one group would secure more favorable treatment

than others working for the same employer. Of course the Union argues that as the

Sanitary Engineer has access to non-General Fund revenues it may depart from the

pattern in County service. I disagree. Across the nation bargaining units that are

independently funded are held to the pattern established by the employer in its various

negotiations. For instance, in Ohio the Highway Patrol has independent revenue

sources as does the Department of Transportation. They are not paid from the general

fund of the State. Employees in those agencies conformed to the deal struck by the

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State with its various other employees in the most current round of negotiations. That

development represents the norm in multi-unit negotiations. It was not shown by the

Union that its members were underpaid vis-a-vis their counterparts in County service or

elsewhere in the State. Were the Union proposal or a fraction thereof to be

recommended the concept of pattern bargaining and its attendant stability would be

eroded. The Employer would be subject to the proverbial whipsawing. That should not

occur. The proposal of the Employer, for no wage increase in 2010 and wage reopeners

for 2011 and 2012 is recommended.

On the matter of wage progression the evidence presented by the Union is

mixed. Some employees of Sanitary Engineer have a seven year progression to top

step. Some do not. Other employees represented by this Union who work for the

County Engineer have the seven step wage progression. Those represented by the

Building and Construction Trades Council have a five year progression. There is no

pattern that would call for adoption of the Union proposal. No change in the current

seven year progression is recommended.

It is the case that the language at the conclusion of Article 32, Section 2 gives the

Employer freedom to pay more than the negotiated rates. The Union agreed to that

provision in the prior Agreement. When it did so it must have been aware of the

possibility that an employee would come into the operation of the Sanitary Engineer at a

rate above those specified in the Agreement. One person was hired under the terms of

this section. That is not abusive nor does it represent destruction of the negotiated wage

system. No change in Article 32, Section 2 is recommended.

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STATE EMPLOYMENT RELATIONS BOARD CONCILIATION

CUYAHOGA COUNTY BOARD OF ) CASE NO. 10-MED-02-0112 COMMISSIONERS -DEPARTMENT OF ) JUSTICE AFFAIRS )

) EMPLOYER, )

) -AND- ) NOVEMBER 23, 2010

) )

OHIO PATROLMEN'S BENEVOLENT ) ASSOCIATION )

) UNION. )

)

PRE-HEARING STATEMENT OF THE CUYAHOGA COUNTY BOARD OF COMMISSIONERS

For the BOCC: For the Union:

Egdilio Morales, Esq., Daniel J. Leffler, Esq. Division of Labor Relations Board of County Commissioners 1255 Euclid Avenue, Suite 310 Cleveland, Ohio 44115

Ohio Patrolmen's Benevolent Association 10147 Royalton Road, Suite J. North Royalton, Ohio 44133 (440) 237-3900

(216) 443-6984 (440) 237-6446 (Fax) 2!6) 443-6866 (Fax)

EXHIBIT

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INTRODUCTION

Description of the Bargaining Unit

The Cuyahoga County Board of Commissioners (hereinafter referred to as the

"BOCC" or "the County") and the Ohio Patrolmen's Benevolent Association are parties

to a collective bargaining agreement for all full and part-time Emergency Medical

Services Communications Operators of the Cuyahoga County Emergency Services

(CECOMS) Division of the Department of Justice Affairs. The bargaining unit is

composed of approximately seven (7) full-time and seven (7) part-time employees in the

one (1) classification referenced above. The collective bargaining agreement extended

for the period April 15, 2007 to March 31, 2010 (the CBA is Attachment A).

Relevant Background Facts

The parties met to negotiate a successor collective bargaining agreement and

reached tentative agreement on all but one unresolved article: Article 37 Wages. A Fact­

Finding hearing was held in accordance with Ohio Revised Code Section 4l17.14(C)(3).

Pursuant to the Parties' mutual agreement regarding time extensions in this matter, fact­

finding occurred on June 23, July 13 and July 28,2010. Fact-Finder Melvin Feinberg

issued his report on August 23,2010. The report was rejected by the Board of

Commissioners.

CECOMS administers a 24 hour, 7 day week cellular 9-1-1 communications

system for Cuyahoga County. CECOMS is not a primary dispatch operation. To this

extent, the Operators are not responsible for the full panoply of duties that are typically

associated with emergency dispatchers. Instead, the Communication Operators answer

cellular 911 calls and pass them through to one of several primary dispatch operations

that are administered by municipalities within the County, the majority of which are

routed to the City of Cleveland's emergency dispatch operation. In this way, the

County's CECOMS operation serves the important function of screening the many

repetitive cellular phone calls that are placed by individuals passing by emergency

situations in their automobiles. This pass-through function accotmts for a significant

majority of calls handled by CECOMS. However, in addition to this function, CECOMS

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Operators also handle ancillary responsibilities of the CECOMS unit that comprise a

much smaller percentage of time spent at work.

REPORT OF UNRESOLVED ISSUES

Article 37- Wages is the only article that remains unresolved. Within this article the

following issues remain open:

Issue 1: Whether there will be across-the-board increases to the wage table in 2010, 2011 and/or 2012.

Issue 2: Whether employees will receive step increases (movement along the Wage schedule) during 2010,2011 and/or 2012.

COUNTY PROPOSAL

ARTICLE 37- WAGES

Seotion 1: Bargaining <mit employees shall be assigned to the pay range set forth below, effective April Hi, 2007.

Step1 Step 2 Step J

28,245.70 29,120.70 29,995.70

Step 4

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30,870.70

Section 2: existing Employees who •.vere hired between 1999 and 200J shall be plaoed at Step 2. employees hired after 200J shall be plaoed at Step 1 of the wage soale. Step movement shall be frozen in the initial year of the Agreement and in 2008. An employee whose mment wage rate is outside of the new pay range shall reoeive a two and one half peroent (2.5%) adjustment to their base wage rates effective April 15, 2007 and shall reoeive zere (0) inorease in 2009.

Sestion J: New Employees shall be paid at Step 1 of the pay range. Employees shall advanse to Step 2 beginning on the first day of the pay period following their jell anniversary date and so forth at annldal intervals ldntil the maximum rate of the pay range is reaohed provided that there shall be no Step movement in the initial year of the Agreement and in 2008.

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SestioR 4: nero shall be zero (0) iRorease to the flOY raR§e iA 2008. Wa§e rates fer 2009 shalll:Je aeterFAiROS thFOU§h WO§e Fe OfleReF RegotiatiORS to l:Je iAitiatea AO later thaR l=ei:Jruary 15, 2009.

~~~;rv~Cit~~~ ..,..!E~~I::!L~l!Yt:~ .• I2Ci>J.~~~~

!lfti.~

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POSITION OF THE COUNTY

The County'ss proposal effectively maintains employee wages and step

assignment at their current level for the first year of the agreement. Wage rates and step

advancement for the second and third years of the agreement are to be established

through reopener negotiations in each of the subsequent two years. This proposal is

necessary given the present economic, administrative and political uncertainty facing the

County.

The Union has proposed a wage increase of three percent (3 %) in each of the

three (3) years of the agreement. In addition to these increases, the OPBA also demanded

a new longevity pay provision. None of these wage demands are acceptable to the

County.

Like many public entities in Ohio and across the United States, Cuyahoga County

has been facing very serious fiscal circumstances. The crisis emerged faster than ever

experienced in the modem history of Cuyahoga County. 2009 revenue collections were

unprecedented lows. One area economist characterized the situation as "catastrophic."

Through the period of these negotiations, 2010 revenue collections remained alarmingly

low. 2010 sales tax revenue, property tax revenue, real estate transactions fees,

investment income and all other revenue streams declined or remained flat. The County

undertook significant expenses cuts, but expenses still are not aligned with the drop in

revenues. The County is projecting a structural deficit of several million dollars going

into 2011. County administrators have never experienced multiple years of revenue

decline in the manner that has occurred over the last several years.

In addition, further revenue reductions are imminent: the State of Ohio is

important source of intergovernmental funding for the County and other political

subdivisions of the state. The state is facing another large projected deficit. Governor­

Elect Kasich has made clear that significant spending cuts will be implemented and it

would be foolish to believe that the County will not be impacted. County administration

must plan for anticipated state funding cuts that are yet to be defined, and that are certain

to exacerbate the projected deficit.

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THE COUNTY IMPLEMENTED A PLAN TO DEAL WITH THE FISCAL CRISIS

The Board of County Commissioners announced a zero wage increase for non­

bargaining employees for the third consecutive year (2008, 2009, and 2010). A fourth

year of zero increase for non-bargaining employees has been included in the 2011 budget.

Non-bargaining employees were directed to take three (3) unpaid furlough days in 2009

and five (5) more in 2010. Most unions agreed to these furlough days as well. In

addition, another voluntary furlough program was implemented in 2010; for 2011, non­

bargaining employees have already been notified that there will be five (5) unpaid

furlough days; and, the Commissioners have directed the Division of Labor Relations to

negotiate the same for all bargaining employees to take place during the first six ( 6)

months of2011.

Over 120 employees were laid off in 2009 and layoffs remain a serious

consideration in 2011. The Division of Labor Relations was directed in 2009 to meet with

all bargaining units to discuss possible alternatives to layoffs which included unpaid

furlough days in 2009 and 2010, and the delay of any wage increase for 2009 and 2010

that was already included in a collective bargaining agreement. All bargaining units with

step systems were asked to forgo step movement in 2010. A hiring freeze was

implemented and remains in place, except for re-organizations that result in efficiency

gains.

The Commissioners implemented an early retirement incentive program (ERIP) to

reduce full-time equivalent positions (FTEs). 900 employees were removed from payroll

through this program in 2009.

The Commissioners have examined all items of discretionary spending and are

implementing cost cutting measures. Several programs providing needed services to the

public were terminated or reduced. For example: termination of the Ohio State Extension

program, reduction of parenting contracts, reduction of the Ohio Works First contract,

reduction of the soil and water subsidy, a five and one-half percent reduction in the

ADAMHS Board subsidy (which provides services for mental health and substance abuse

in Cuyahoga County), reduction of the Help Me Grow Core Services, elimination of the

Positive Education Program for Severely Emotionally Disturbed Children, reduction or

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elimination of Supportive Services Child and Family Focus contracts, eliminated or

reduced Services under the Neighborhood Collaborative Contracts, and Children

Residential Placement Contracts were reduced by 2.75%. A five million dollar economic

development fund was reduced by 2.5 million dollars. There are MAl~Y more examples

provided in the 2009, 2010 and 2011 budgets.

In light ofthe fiscal crisis, significant possibility oflayoffs, reduced

programmatic services to the public, impending state budget cuts, and the fact that

all other employees of the County are receiving zero (0) increase, it would be

INCONGRUOUS and DEMORALIZING for the Cuyahoga County Commissioners

to grant the CECOMS bargaining unit a wage increase in 2010, regardless of the

size of the unit or the existence of a separate funding source that is not available for

other employees. We respectfully request that the Conciliator adopt the proposal of

the County for zero wage increase in 2010, and a freeze on step increases in 2010,

and re-opener negotiations in 2011 and 2012.

REPORT OF THE FACT -FINDER

The Fact-Finder found as follows:

"The County has presented credible evidence that it has suffered a significant reduction in most types of revenue during this unprecedented decline in the local economy. Economic indicators for this year and the next year forecast no positive change in the Employer's revenue collection fortunes." (See Attachment B, page 9).

He went on to state:

"I recognize that in these difficult economic times the County is making justifiable good-faith efforts to hold the line or cut all labor related expenses in order to maintain essential services in the face of declining revenues." (Attachment B, page 13).

Incredibly, he then went on to recommend three percent (3%) increases in each of the

three (3) years of the contract. The Fact-Finder based this recommendation on two main

points: (1) that there is an independent funding source· for the Cuyahoga CECOMS

operation; and (2), the Fact-Finder's determination that the bargaining unit employees are

underpaid.

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Independent Revenue Source

In regard to the first point, there is no denying that a funding source exists, the

cellular 91 I surcharge, that is in a better position than the overall general fund of the

County. However, unlike the ongoing addition to fixed costs recommended by the Fact­

Finder, this funding source is scheduled to sunset by operation of state law in 20 I 2 and

the existing funds are intended to be used for major upgrades to the cellular 911

infrastructure.

A better reasoned approach to analogous circumstances was recently articulated

by Professor Harry Graham serving as Fact-Finder to the Cuyahoga Sanitary Engineer

and Teamsters Local 436. In his report dated October 19, 2010, he stated:

"It would be incongruous if members of this bargaining unit received a wage increase while their colleagues elsewhere in County service did not. A feature of situations characterized by multiple bargaining units is an attempt by the parties to secure standardization of the terms of agreements. It should not be expected that absent extraordinary circumstances one group would secure more favorable treatment than others working for the same employer. Of course the Union argues that as the County Sanitary Engineer has access to non General Fund revenues it may depart from the pattern in County service. I disagree. Across the nation, bargaining units that are independently funded are held to the pattern established by the employer in its various negotiations. For instance, in Ohio the Highway Patrol has independent revenue sources as does the Department of Transportation. They are not paid from the general fund of the State. Employees in those agencies conformed to the deal struck by the State with its various other employees in the most current round of negotiations. That development represents the norm in multi-unit negotiations." (Attachment C, Emphasis added).

Professor Graham went on to recommend no wage increase for 2010 and wage re­

openers for 2011 and 2012.

External Comparability Analysis

The Fact-Finder's determination in the instant case that the employees of the

CECOMS bargaining unit are unpaid relative to other employees around the state is

seriously flawed. He based this finding on benchmark reports of alleged comparable

jurisdictions that he obtained himself after the hearing that were !!Q! entered into

evidence during the hearing by the Union. The County had no opportunity to respond to

the reports on which he heavily relied. In fact, the County never had an opportunity to

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even see the reports because the Fact-Finder did not append them to his recommendation.

Nevertheless, from the Fact-Finder's description of the reports, it is clear that they are

flawed in at least one important respect: he requested information on the wrong job

classification. The classifications of Dispatcher and Wireless Dispatcher for which the

Fact-Finder independently obtained evidence are used by primary dispatch operations

around the state and are not an appropriate comparison for the job performed by the

bargaining unit employees of the Cuyahoga CECOMS operations -which is a pass­

through operation, not a primary dispatch center.

At the hearing, the County will support the positions outlined above with relevant

information, documents and testimony. We respectfully request that the Conciliator

adopt the final offer of the County.

Respectfully Submitted,

THE CUYAHOGA COUNTY BOARD OF COMMISSIONERS

B~)~ Egdir:J:MOIOaie;,: Labor Relations Administrator Division of Labor Relations 1255 Euclid Avenue, Suite 310 Cleveland, Ohio 44115 (216) 443-6984

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Certificate of Service

I hereby certify that a copy of the foregoing Pre-Hearing Statement was sent this 17th day ofNovember, 2010 via electronic mail and FED EX to the following:

Daniel J. Leffler, Esq. OPBA 10147 Royalton Road, Suite J P.O. Box 338003 North Royalton, Ohio 44133 E-mail: danielleffler@sbcg1obal.net Fax: (440) 237-6446

And:

Joseph W. Gardner, Esq. 4280 Boardman-Canfield Road Canfield, Ohio 44406 Jwgll18rQlsbcglobal.net

And:

SERB 65 East State Street, 12th Floor Columbus, Ohio 43215

-c ~jxJ[l__ Eg~io J. Morales, Esq.

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STATE EMPLOYMENT RELATIONS BOARD IN THE MATTER OF CONCILIATION

OHIO PATROLMEN'S BENEVOLENT ASSOC. ) CECOMS DISPATCH UNIT )

) UNION, )

) v. )

) CUYAHOGA COUNTY BOARD OF ) COUNTY COMMISSIONERS )

) EMPLOYER. )

CASE NO.: 10-MED-02-0112

CONCILIATOR: JOSEPH W. GARDNER

NOVEMBER 23, 2010

PRE-HEARING STATEMENT OF OHIO PATROLMEN'S BENEVOLENT ASSOC.

Daniel J. Leffler, Esq. (0076540) Ohio Patrolmen's Benevolent Association 10147 Royalton Road, Suite J North Royalton, Ohio 44 !33 Ph: 440-237-7900 Fax: 440-237-6446

Attorney for Union

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Egdilio Morales, Esq. Board of County Commissioners Labor and Employment Relations 125 5 Euclid A venue, Room 310 Cleveland, Ohio 44115 Phone: 216-443-7229 Fax: 216-443-6866 Attorney for Employer

I. BACKGROUND.

Now come the Ohio Patrolmen's Benevolent Association and the CECOMS Dispatch

Unit, in accordance with the Ohio Administrative Code and Revised Code, and submits the

following pre-hearing statement for Conciliation.

The name of the Union is the Ohio Patrolmen's Benevolent Association, CECOMS

Dispatcher Unit (herein "Union''). The Union is represented by:

Daniel J. Leffler, Esq., (0076540) 10147 Royalton Road, Suite J PO Box 338003 North Royalton, Ohio 44133 440-237-7900

The employer is the Cuyahoga County Board of County Commissioners (herein

"BOCC"). The BOCC is represented by:

Egdilio Morales, Esq., Labor and Employment Relations Division 1255 Euclid Avenue, Room 310 Cleveland, Ohio 44115 216-443-7229

The fact-finding relates to the collective bargaining unit consisting of approximately

seven (7) full-time and seven (7) part-time members made up of emergency dispatchers. The

Unit consists of CECOMS Dispatchers, but excluding all supervisory and management

personnel. The collective bargaining agreement (herein "Contract") between the Union and

BOCC covered the period from April 15, 2007 through March 31, 2010. A copy of said Contract

is attached hereto.

On or about February I, 2010 the Union submitted a Notice to Negotiate to SERB. The

parties met on two occasions to attempt to negotiate a settlement for the successor agreement.

During mediation with the fact-finder, the parties were able to each a tentative agreement all

2

unresolved issues except Wages. The parties were unable to resolve the following issue and

submitted the same before the fact-fmder, Melvin E. Feinberg, on July 23, 2010. Mr. Feinberg

issued his report and recommendations on or about August 23, 2010. The Union accepted the

Fact-finder's Report and the BOCC rejected the Report. All other terms and conditions not

modified by tentative agreement remain current contract language.

The parties were unable to reach a resolution on the remaining issue concerning Wages.

It is anticipated that the Employer will offer 0% for wage increases in each year of the contract.

The Union proposed a wage increase as detailed below.

The Union agrees that the following provisions of the CBA shall remain current contract

language: Articles I, 2, 3, 4, 5, 6, 7, 8, 9, 10, II, 12, 13, 15, 16, 17, 19, 20, 21, 22, 24, 25, 26, 27,

28, 29, 30, 32, 33, 36, 39, 40, 41, 42, 43 ,44 and 45. The parties were able to reach a tentative

agreement on the following: Preamble, Articles 14, 18, 23, 31, 34, 35, 38 and 46. The parties

were unable to reach resolution on the issue presented for review. The Union submits the

following issues to the Conciliator:

Article 37- Wages.

The Union has attached hereto as Union Exhibit #I and incorporates by reference written

language for the Union Final Offer proposal. The Union will support its position with testimony

and exhibits at the hearing of this matter.

II. ISSUES PRESENTED.

1. Article 37- Wages.

The Union proposes wage increases in the amount ofthree percent (3%) for each year of

the contract. The wage rates under the current contract are comprised of a four ( 4) step scale

'With employees advancing to the next step upon their anniversary date of hire. Employees

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reaching the highest pay rate, Step 4, receive no other additional raises except an annual

percentage adjustment as negotiated by the parties. The Unit also has employees who, due to

their years of service, are not on the current four step scale but receive a base hourly rate in

excess of the Step 4 rate. These employees also rely on an annual percentage increase to adjust

for cost-of-living. The Employer did not provide an increase in any step in 2008 or 2009.

The Union's Final Offer proposal includes a three percent (3%) base hourly rate increase

for each of the four steps on the wage scale and a wage re-opener for 2011 and 2012 for

employees whose pay rate is outside the current scale. This proposal adopts the Fact-Finder's

recommendation.

The Union asserts that the BOCC has funds available to pay for modest wage increases.

It is anticipated that the BOCC is offering zero wage increases for 2010,2011 and 2012. The

Union opposes the BOCC offer. The BOCC receives special revenues in the form of a Wireless

9-1-1 Governmental Fund which is designated, among other functions, to pay wages for the

CECOMS operators. In 2008, the County received approximately $4,300,000 in Wireless 9-1-1

fees and had a beginning balance of $5,055,000 in the Fund. In 2009, the County received an

additional $3,713,000 in revenue and had a remaining Fund balance of$7,461,503. The 2010

Administrator's Recommended Budget for the entire CECOMS Division was $1,730,378; of

which, personnel salary costs were only $720,000. As a result, the County had a Wireless 9-1-1

Fund balance to expense ratio of over 400%.

The Union's wage proposal for all three (3) year of the contract would add approximately

$40,000 to the personnel salary cost. The Union proposal is roughly V, of I% of the County's

Wireless 9-1-1 Fund Balance.

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The Union's proposal was recommended by the experienced and knowledgeable Fact-

Finder, Mr. Feinberg, after full consideration of the evidence. His Report was well reasoned and

considered all the relevant factors under Revised Code and Administrative Code.

XII. Conclusion.

The Union Final Offer proposal is attached hereto. Items not identified above shall be

controlled by current contract language or any tentative agreements previously reached. The

Union will further support its Final Offer proposal at the Conciliation hearing through exhibits

and testimony.

I 014 7 Royalton Road, Suite J PO Box 338003 North Royalton, Ohio 44133 440-237-7900 danielleffler@,sbcglobal.net

Attorney for the Union

Certificate of Service

I hereby certify that a copy of the foregoing Pre-Hearing Statement was sent this 16th day of November, 2010 via electronic mail and UPS to the following:

Joseph W. Gardner, Esq. 4280 Boardman-Canfield Road Canfield, Ohio 44406 Jwg 11181alsbcglobal.net

And

Egdilio Morales, Esq. Board of County Commissioners

5

Labor and Employment Relations 1255 Euclid Avenue, Room 310 Cleveland, Ohio 44115 emoraleslalcuyahogacountv.us

and

SERB 65 East State Street, 12th Floor Columbus, Ohio 43215

6

UNION FINAL OFFER PROPOSAL

ARTICLE 37: WAGES

Section I: The wage scale of Bargaining Unit Employees shall be increased three percent (3%)

in each year of the agreement and they shall be assigned to the pay range set forth below,

effective April!, 2010.

Step 1 Step 2 Step 3 Step 4

4/112010 $13.99 $14.42 $14.85 $15.29

$29,093.07 $29,994.32 $30,895.57 $31,796.82

411/2011 $14.41 $14.85 $15.30 $15.75

$29,965.86 $30,894.15 $31,822.44 $32,750.73

4/112012 $14.84 $15.30 $15.76 $16.22

$30,864.84 $31,820.98 $32,777.11 $33,733.25

Section 2: Existing Employees shall advance to the next step on the wage scale annually on the

first day of the pay period following their anniversary date until the maximum pay range is

reached. Unit Employees whose current wage rate is outside ofthe pay range shall receive no

adjustment to their base wage rates in the first year of the Contract, and any increase in their

wage rates for the second and third year shall be determined by wage-reopener negotiations to be

initiated no later than February 15, 2011 and no later than February 15, 2012, respectively.

Section 3: :-.lew Employees shall be paid at Step 1 of the pay range. Unit Employees shall

advance to Step 2 beginning on the first day of the pay period following their job anniversary

date and so forth at annual intervals until the maximum rate of the pay range is reached.

7 ~ EXHIBrf !! Ui-JtDJ

~ i

CECOMS OPERATOR DUTIES AS OF 6/01/2010:

TRANSFER CALL PROCEDURE TO OVER 53 PSAPS (PUBLIC

SAFTY ANSWERING POINT SYSTEM). TO 6 SURROUNDING

COUNTIES

MABAS PROCEDURE (CALL OUT TO OVER 62FD IN 62

CITIES)

HIGHLAND HILLS GENERATOR EMERGENCY OPERATING

PROCEDURES

KNOWLEDGE OF THE COUNTY MAPS: ASHTABULA, ERIE\

HURON, STARK\WAYNE, MAHONING\TRUMBULL.

EAS PROCEDURES AND FORMS

KNOWLEDGE OF THE 2008 CUYAHOGA COUNTY MAP BOOK

INTERDIVISIONAL MABAS (I.M.A.B.A.S.) REQUEST

INFORMATION

KNOWLEDGE OF MSAG (MASTER STREET ADDRESS GUIDE)

NORTHEAST OHIO AMBER ALERT: ERIE COUNTY,GEAUGA

COUNTY, HURON COUNTY,LAKE COUNTY, LORAIN

COUNTY, MEDINA COUNTY,SUMMIT COUNTY.

HOSPITAL OVERRIDE BOOK PENDING: EAST, CENTRAL,

WEST.

HOSPITAL RESTRICTION BOOK: BEDFORD HOSPITAL,

CLEVELAND CLINIC, CCF CHILDRENS, EUCLID, FAIRVIEW,

HILLCREST, KAISER PARMA, LAKEWOOD, LUTHERAN,

MARYMOUNT,METRO, METRO CHILDRENS, PARMA,

RICHMOND, ST.JOHN WESTSHORE, ST.VINCENT,

SOUTHPOINTE, SOUTHWEST, UNIVERSITY, RAINBOW,

RAINBOW BABIES AND CHILDREN

MED CENTERS: MARYMOUNT SOUTH, SAGAMORE MED.

CENTER, ST.LUKE SOLON,

KNOWLEDGE OF MOTOROLA 911 RESOURCES MANUAL

SICK CALL LOG (WORKERS CALLING OFF TO WORKERS AND

CALLING OUT FOR THERE OWN REPLACEMENT. MARK TIME

CARD AND FILL OUT REQUEST FORM AND PUT IN BOOK.

OHIO FIRE CHIEFS EMERGENCY RESPONSE PLAN

KNOWLEDGE OF MILE MARKER: 1-90, 1-71, 1-277, 1-480, 1-76,

1-77' 1-271' 1-680.

KNOWLEDGE OF FREEWAY REFERENCE MARKERS

KNOWLEDGE OF COMPUTER TROUBLE LOG

KNOWLEDGE OF MOBILE ONE USAGE LOG

CISM (CRITICAL INCIDENT STRESS MANAGEMENT)

KNOWLEDGE OF POSITRON POWER 911, POSITRON

INTEGRATED TELEPHONE & RADIO RECORDER.

CUYAHOGA COUNTY SUBURBAN MABAS PLANS

SARA PLAN AND VERBAL SPILL INCIDENT REPORT MANUAL

AND TRAINING

S.E.R.T. (SOUTHWEST EMERGENCY RESPONSE TEAM)

CECOMS PROCEDURES FOR CALL-OUT HAZ-MAT-ROPE

RESCUE

KNOWLEDGE OF ENDEC \EAS EMERGENCY ALERT SYSTEM \

ENCODER! DECODER

KNOWLEDGE OF RED BOOK CUYAHOGA COUNTY CECOMS

2007 WEB PAGE HITS

KNOWLEDGE OF CUYAHOGA COUNTY EMERGENCY

COMMUNICATIONS EVACUATION PLAN AND MANUAL

KNOWLEDGE OF CEMAC MOBILE ONE MANUAL

KNOWLEDGE OF CEMAC COMMAND

KNOWLEDGE OF CECOMS AT&T CIRCUIT NUMBERS

KNOWLEDGE OF EMERGENCY RESPONDER HANDBOOK FOR

PIPELINE EMERGENCIES

KNOWLEDGE OF COPS MANUAL (CUYAHOGA EMERGENCY

MANAGEMENT ASSISTANCE CENTER

SEALE (SOUTHEAST AREA LAW ENFORCEMENT) BOMB

SQUAD CECOMS PROCEDURES & FORMS

KNOWLEDGE OF CUYAHOGA, LORAIN, MEDINA AKRON

SUMMIT\ PORTAGE 29TH EDITION 2004

KNOWLEDGE OF THE SARA PLAN (COMPREHENSIVE

EMERGENCY RESPONSE PLAN FOR HAZRDOUS MATERIALS)

KNOWLEDGE OF W.F.D. MABAS

Egdilio Morales, Esq. Labor Relations Administrator

Joseph W. Gardner ATTORNEY AT LAW

4180 BOARDMAN-CANFIELD ROAD CANFIELD, OHIO 44~06

PHONE: (330) 533-1118 FAX: (330) 533-1025

E-mail: JWGIII8/Q:sbcrrlobal.net www .. JWGardnerlaw.com

December 6, 2010

Cuyahoga County Board of Commissioners 1255 Euclid Avenue, Suite 310 Cleveland, Ohio 44115

Daniel J. Leffler, Esq. Representative Ohio Patrolmen's Benevolent Association P.O. Box 338003 North Royalton, Ohio 44133

Re: Cuyahoga County Board of Commissioners & OPBA- CECOMS Unit SERB Case No.: 10-MED-02-0112

Mr. Morales & Mr. Leffler:

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Please find enclosed the Conciliation Report, together with my invoice for the above-mentioned matter. Further enclosed is Tax Form W-9.

Please review the enclosed and remit payment upon receipt.

Thank you for both your anticipated cooperation and your attention to this matter. If you should have any questions, please do not hesitate to contact my office.

JWG:Iaw CC: Mary Laurent, SERB Administrative Asst. Enclosures

··'-.

IW.GARDNER >rney at Law man-Canfield Road OH

MARY LAURENT State Employment Relations Board

Bureau of Mediation 6S E. State Street, 12th floor

Columbus, OH 4321S