IN THE MATTER OF ARBITRATION BETWEEN Law Enforcement Labor ...

IN THE MATTER OF ARBITRATION BETWEEN

Law Enforcement Labor Services, Inc., Local 176, Union or LELS,

and

City of Fairmont, Minnesota, Employer or City.

OPINION AND AWARD

Interest Arbitration BMS Case No. 21-PN-1092

ARBITRATOR: DATE OF AWARD: HEARING SITE: HEARING DATES: RECORD CLOSED/BRIEFS RECEIVED: BRIEFS RECEIVED REPRESENTING THE UNION:

REPRESENTING THE EMPLOYER:

Gerald E. Wallin, Esq.

September 17, 2021

Virtual via Zoom Platform

August 10, 2021

August 17, 2021

August 31, 2021

Renee Zachman Law Enforcement Labor Services, Inc., 2700 Freeway Blvd Suite 700 Brooklyn Center, MN 55430 Susan K. Hansen Madden Galanter Hansen, LLP 7760 France Avenue South, Suite 290 Bloomington, MN 55434-5834

JURISDICTION The hearing in this matter was held on August 10, 2021. The undersigned was selected to

serve as arbitrator pursuant to Minnesota law, the procedures of the Minnesota Bureau of Mediation Services ("BMS"), and the parties' collective bargaining agreement ("Agreement"). Twelve issues were at impasse for interest arbitration. Both parties were afforded a full and fair opportunity to present their evidence on these issues. Witnesses were sworn and their testimony was subject to cross-examination. The parties closed the record to further evidence on August 17, 2021 and submitted post-hearing briefs by email, duly received on or before August 31, 2021, which completed the record, and the matter was taken under advisement.

ISSUES The twelve impasse issues that were certified to interest arbitration by the BMS Commissioner

for the parties' 2021-2022 labor agreement are as follows:

1. Wages 2021; Amount of general increase, if any? 2. Wages 2022; Amount of general increase, if any? 3. Compensation; should there be a new step structure?. 4. Call Back; should Call Back work be defined? 5. Sick Leave; New language outlining sick use/eligibility? 6. Severance; Should Severance be paid into a MSRS Health Care Savings Account? 7. Severance; Should Severance Pay Schedule be modified? 8. Severance; Should sections referencing Employer's Insurance Plan be deleted? 9. Vacation; Should vacation carry over and sell back provisions by modified? 10. Holidays; Should Holiday leave be paid, rather than added to vacation leave bank? 11. Compensatory Time; Should Compensatory Time be paid at the end of the year? 12. Waiver; Should there be a Waiver article?

The final positions of the parties on the first two issues matched at 2.25% for 2021 and 2.75% for 2022. Accordingly, those issues were resolved. They were the only traditional economic issues. The resolution of these two issues largely eliminates the need to dwell on economic factors such as ability to pay, compliance with the Minnesota Pay Equity Act, recruitment and retention problems, cost of living, and similar matters.

The remaining ten impasse issues all involve changes to the existing Agreement language governing work rules and/or working conditions.

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BACKGROUND SYNOPSIS OF THE EVIDENCE The Employer is the City of Fairmont, Minnesota. It is located in Martin County in south-

central Minnesota. The southern boundary of the County is the State of Iowa. The City is approximately mid-way between the cities of Albert Lea and Worthington, Minnesota approximately two miles south of the east-west route of Interstate I-90. The population of the City is just under 5,000 according to some 2013 data.

The bargaining unit consists of 16 members in the classifications of police officer, sergeant, detective, and animal control & code enforcement peace officer.

The Union assumed the status of exclusive representative for the bargaining unit by Order of the BMS Commissioner dated September 23, 1991. Following lengthy collective bargaining negotiations, the parties submitted some twenty-five issues to interest arbitration. This process produced an award dated August 4, 1994 by Arbitrator Thomas Gallagher. The parties have reached negotiated settlements since then for all successor labor agreements until the present impasse. Thus, the provisions of the former 2018-2020 agreement represent nearly three decades of negotiated settlements.

Issue No. 3 deals with modifying the compensation structure contained in Appendix A,

Sections I, II, and III of the 2018-2020 labor agreement.

Page 4 of the 1994 arbitration award described the compensation structure in existence for

the 1990-1991 labor agreement. At that time, the top monthly pay rate for the three bargaining unit

classifications listed was as follows:

Patrolman Sergeant Animal Control Officer

$ 2,280.68 2,430.24 1,968.72

In addition, the operation of the compensation structure then was as follows:

... Newly hired Patrolmen shall be paid at a rate of $120.00 per month below the current Patrolman rate. At the completion of six months employment, the Patrolman's salary shall be increased by $20.00 per month. Each subsequent six month anniversary the rate shall be increased by $20.00 per month. Upon successful completion of three years service the employee shall be paid the full rate established for the Patrolman position.

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Thus, there was essentially a three-year service requirement to reach top pay for the Patrolman classification with $20.00 increases every six months. It appears that Sergeants, Detectives, and the Animal Control Officer immediately received the top pay level for their respective classifications and did not have to deal with the $20.00 increases every six months.

The structure just described has remained essentially unchanged since 1994 and likely was in place longer. It has been retained by the parties for some three decades.

The Employer's proposal on Issue No. 3 seeks to replace the existing structure that reaches top pay after three years with a ten-step structure. Step 8 is the former top pay step under the existing structure. It is the step to which the 2.25% is applied for 2021 increase and the 2.75% is applied for the 2022 increase. Thereafter, Step 9 is a 1% increase over the Step 8 level. Step 10 is another 1% increase over Step 9. Thus, the proposed new Steps 9 and 10 represent larger pay increases than the 2.25% and 2.75% increases would otherwise provide.

As proposed, Steps 2-8 will be annual steps. It will take seven years of Patrol Officer service to reach the former top pay level. Step 9 takes another two years to reach. Step 10 takes five more years to reach what will become the top pay step. According to Employer Exhibit No. 12, three of the current Patrol Officers have more than 16 years of service each. They would immediately experience a pay increase of 4.25% for 2021 not just the 2.25% that the existing structure would provide.

As proposed, Step 1 will be the starting pay step for newly hired officers. The proposed hourly rate of $30.37 shown by Employer Exhibit No. 12 is pegged at 80% of the Step 10 hourly rate.

If the existing structure is retained, new hires would start out only $120 per month below the monthly top Patrol Officer pay of $6,448.69, or $6,328.69. Divided by 173.33 hours per month produces an hourly rate of $36.51, which is more than $5.00 per hour higher than the new hourly rate the Employer proposes. To counter this result, the Employer also proposes to add language to provide as follows:

The Employer maintains the ability to place a new hire at any step on the scale commensurate with their education and experience.

In addition, the Employer proposes to add language to permit it to skip making the annual step increases for disciplinary reasons. The language it proposes is as follows:

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Step adjustments may not be made if serious or continuous disciplinary matters exist within the previous 12 months.

The Employer's proposed structure also has the same ten step format for Sergeants, Detectives, and the Animal Control Officer. However, the Employer proposes to augment Sergeant pay by $.18 per hour at the new Step 8 to create a greater differential between the Sergeant and Patrol Officer wages. It also proposes to add new language to the structure as follows:

Promoted employees will be moved to an appropriate step on the pay scale for the new classification that does not result in a reduction in pay.

The Employer's two other unions, AFSCME and IBEW, have accepted the proposed 10-step structure for their members. In addition, the 10-step structure has been implemented for nonunionized employees.

The remaining issues, to one degree or another, all affect unwritten practices that have apparently developed over the years.

Issue No. 4 deals with pay for Call Back situations. The impasse is over what constitutes a Call Back. The Employer seeks to add language to expressly exclude training, meetings, and special City events that are scheduled in advance and do not involve short-notice, or no-notice, situations where an officer to called back to duty after having been released. The Union position is to make no change to the existing Call Back provision found in Article XII except that both parties agree an extension of a regularly scheduled shift (both an early report and/or a hold-over) does not constitute a Call Back.

The existing language is as follows:

ARTICLE XII ? CALL BACK An employee who is called back to duty during the employee's scheduled off-duty time shall receive a minimum of two (2) hours of pay at one and one-half (1-1/2) times the employees regular base pay rate plus longevity pay, if applicable.

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