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Thomas J. Nowel Arbitrator and Mediator Cleveland, Ohio

IN FACT FINDING PROCEEDINGS PURSUANT TO AGREEMENT

OF THE PARTIES

Fact Finding Proceedings Between: ) ) FACT FINDING SEIU District 1199 ) REPORT AND The Health and Human Services Union ) RECOMMENDATION ) and ) Date: ) August 7, 2015 Lorain County Community Action Agency ) APPEARANCES: Josh Norris representing SEIU District 1199; and Walter S. Stumphauzer and Susan Keating Anderson, Walter Haverfield LLP, representing Lorain County Community Action Agency.

INTRODUCTION

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Thomas J. Nowel was appointed by agreement of the parties to conduct a fact

finding hearing. The parties had engaged in collective bargaining negotiations for over

two years in an attempt to negotiate a successor Agreement. The parties met

approximately twenty times over the two year period and were assisted during a number

of bargaining sessions by a federal mediator. At the point of impasse, approximately

twelve issues were unresolved. The parties had reached tentative agreement on

approximately seven issues during negotiations. During the negotiations the Union made

a change in its chief negotiator. The termination date of the Agreement was July 31,

2013.

This fact finding process is unusual in that the Lorain County Community Action

Agency is a private, not for profit, agency. Labor relations and collective bargaining are

governed under the auspices of the National Labor Relations Board. Private sector labor

law does not include a formal dispute settlement procedure. The chief negotiators in the

instant matter represent numerous public sector jurisdictions and employees in Ohio and,

by agreement, entered into a Memorandum of Understanding to adopt the Ohio statutory

dispute resolution process as a means of resolving issues at impasse. The parties agreed

to the public sector fact finding procedure which is contained in Ohio Revised Code

Section 4117.14. The parties submit their position regarding each issue at impasse, and

the fact finder, following the hearing, issues a report with recommendation for settlement

on each unresolved issue. The Report is considered as a whole, and a party may reject

the Report and Recommendation only by 60% vote of the legislative body and/or total

Union membership. The Report and Recommendation is deemed accepted by a party

which fails to conduct a vote within seven days of its issuance. It is not unusual in the

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public sector that one or the other party purposely allow the seven days to pass knowing

that, by doing so, the Report and Recommendation will be deemed accepted as final

resolution of the collective bargaining negotiations. These provisions are contained in

the Ohio statute and administrative rules.

The Ohio statute provides guidance and direction for the fact finder as outlined in

ORC Section 4117.14 (G) (7) (a-f). The parties have agreed that the fact finder in the

instant matter is to be guided by these provisions as follows.

1. The past collectively bargained agreement between the parties. 2. Comparison of the issues submitted to fact finding relative to the employees in the bargaining unit involved with those issues related to other public and private employees 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 proposed, and the effect of the adjustments on the normal standard of public service. 4. The lawful authority of the public employer. 5. The stipulation of the parties. 6. Other factors, not confined to those listed above, which are normally or traditionally taken into consideration in determination of the issues submitted to final offer settlement through voluntary collective bargaining, mediation, fact finding, or other impasse resolution procedures in the public service or in private employment. The Union represents a bargaining unit comprised of full and part-time employees

in the following classifications, Administrative Aide, Assistant Teacher, Cook, Early

Head Start Assistant Teacher, Early Head Start Teacher, Custodian, Early Head Start

Home Visitors, Food Service Driver, Energy and Emergency Services Advocates, Family

Service Worker, Head Teacher, Home Visitors, Weatherization Technicians and

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Warehouse Person. Not all positions may be filled at the writing of this Report. There

are approximately 115 employees in the bargaining unit.

Those participating at hearing for the Employer included the following: Kenneth S. Stumphauzer, Attorney Susan Keating Anderson, Attorney S. Matelski, Head Start Director Don Thigpen, Human Resources Director Jennifer Bartlelaugh, Education and Disabilities Specialist Chris Haney, Finance Director Aaron Thompson, Grievance Coordinator Jackie Boehnlein, President and CEO Christy Conrath, Insurance Consultant and Broker Jonathon Sadlier, Insurance Broker Those participating at hearing for the Union included the following: Josh Norris, Public Division Director Cathy Kaufmann, Public Division Deputy Director Tracy Cutright, Administrative Organizer Danie Tarrow, Administrative Organizer Brenda Sharp, Union Delegate Kathryn Ramsey, Union Executive Board Rupert Eldemire, Grievance Chair Jackie Watkins, Union Delegate ISSUES AT IMPASSE: Article I. Purpose Article VII. Appointments Article X. Payroll and Work Schedules/Hours of Work Article XI. Wages Article XII. Health Benefits Article XIV. Holidays Article XVI. Leaves of Absence Article XVIII. Employee Development Article XXI. Grievance Procedure Article XXXII. Duration New Article. Educational Credentials

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New Article. Proposal to Eliminate AFLAC Hearing at fact finding occurred over three days, June 17, June 18 and July 7,

2015. During the course of the hearing, the parties had full opportunity to advocate for

their positions on each outstanding issue, submit exhibits, present testimony and engage

in discussion and rebuttal of the submissions and testimony of the other party. The Fact

Finder will transmit the Report and Recommendation, by way of electronic mail and by

agreement of the parties, on August 7, 2015.

DISCUSSION AND RECOMMENDATIONS

The Lorain County Community Action Agency provides Head Start programs,

energy assistance and other services in Lorain County. A significant portion of agency

resources is devoted to the Head Start program in the county. Primary service areas are

the cities of Lorain and Elyria. The Head Start program is especially important in that

Lorain city schools are under state supervision. Approximately 95% of the Agency’s

budget is grant based, and the largest funder is the Office of Head Start, Chicago Region.

The Agency provides services in approximately eleven locations in Lorain County.

In the past the Agency faced a number of deficiencies. The controlling Board of

Trustees appointed Ms. Jackie Boehnlein as CEO, and she has eliminated deficiencies

and improved the quality of services the Agency provides to the County. The Employer

states that it is in a five year grant cycle, and, for the first time, may lose some or all of its

grant funding at the end of the period if it does not meet a higher level of service, quality

and expertise. The Employer argues that it is this environment and uncertain future

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which drives its proposals in the instant negotiations. In addition, the State of Ohio has

emphasized the importance of a higher level of quality and teacher credentialing. The

Employer argues that the Union, during the negotiations, has not been responsive to the

demands placed upon the Agency and has failed to bargain in good faith.

The Union has been the exclusive representative of employees of the Agency

since 1997. The Union argues that its primary concern is the welfare of the children and

citizens it serves in the community. If a proposal of the Employer is a mandate, the

Union states that it will comply, but, if proposals are not “must have,” the Union is not

willing to agree to concessionary issues. The Union states that a number of Employer

proposals were not submitted until very late in negotiations or just prior to the fact

finding hearing. The Union cites the current lack of trust between the parties. The Union

made a change in its chief negotiator during the process. The Union states that it does not

want the agency to fail. The Union emphasizes the low pay of bargaining unit

employees.

The recommendations, which follow, are generally in the order in which they

were presented at the evidentiary hearing.

1. Article I. Purpose

The Employer proposes to delete most of Paragraph B which illustrates terms and

conditions of employment and the establishment of an orderly procedure to resolve

disputes. In addition, the Employer proposes language which states that “This article is

not subject to the grievance procedure.” The Union proposes current contract language.

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EMPLOYER POSITION: The Employer argues that the Union has abused the proper

use of the Grievance Procedure by citing the “Purpose” article of the Agreement in 91

instances from 2013 to mid 2015. During this period of time, the “Purpose” provision

has been cited in 97.6% of all grievances filed by the Union, and the Union grievance

representative frequently has been unable, in grievance meetings with management, to

explain the alleged specific contractual violation. The Employer argues that this is an

abuse of the process as more often than not, there is little or no specific information

presented to management regarding the alleged violation or dispute between the parties.

The Employer argues that the “Purpose” article provides no rights which are separate

from distinct rights and obligations contained in the Agreement and expects the Union to

be clear and specific regarding alleged violations. The Employer has brought an unfair

labor practice charge against the Union at the National Labor Relations Board (NLRB)

for alleged abuse of the Grievance Procedure. The Employer argues the importance of

modifying this article going forward.

UNION POSITION: The Union states that there has been no change in the “Purpose”

article of the Agreement since the first collective bargaining agreement between the

parties in 1998. The Union argues that this provision sets forth what is expected as the

appropriate relationship between the parties and that the relationship with the Employer

has been hostile over the past few years. The Union argues that the Employer’s

grievance coordinator is often not empowered to resolve grievances. The Union notes

that there has only been one arbitration between the parties during the period cited by the

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Employer, 2013 to 2015. The Union states that it is important to the bargaining unit and

history of bargaining that current contract language be maintained.

RECOMMENDATION: The Employer makes a compelling argument regarding its

proposal to modify the Purpose provision of the Agreement and to bar the citation of this

article in future grievances filed by the Union. The Employer is correct in its assertion

that the Union must provide clear information and the specific violation of the Agreement

for an efficient process of dispute resolution. The Purpose article is a general provision

which outlines the expectation of the parties in their contractual relationship. This neutral

often sees the citation of the Purpose provision in grievances at or before arbitration, but

it must be supplemented by specific violation of an article or section of the Agreement.

The Union suggests that this has occurred in the instant case, but evidence indicates that

the Purpose provision was the sole citation in twenty grievances filed by the Union in the

time period of 2013 – 2015. Except in disciplinary cases, the Union has the burden of

proof in most instances, and, if the only citation is the Purpose provision, it may be

difficult for the Employer or a neutral to gain a clear understanding of an alleged

violation of the Agreement. The Union indicates that during the time period of 2013 –

2015, as cited by the Employer, only one grievance was heard in arbitration, and this is a

good thing. But the filing of 91 grievances in less than a two year period is a clear signal

that the parties have a lot of work to do regarding their relationship. The Union makes a

compelling argument that the language in Article I has not changed since the first

collective bargaining agreement between the parties in 1998. The Ohio statute suggests

that a fact finder give consideration to the history of bargaining, and there is precedent to

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not recommend a proposal as drastic as that made by the Employer in this instance. Both

the NLRB and SERB are clear regarding the right of employees to act collectively and to

file grievances which, at the end of the process, may not have total merit. To recommend

the Employer’s proposal to bar the filing of grievances based on the Purpose provision is

violative of the spirit of labor law. SERB expects the Union to take a grievance through

all pre-mediation/arbitration steps prior to making a decision regarding merit.

Nevertheless, the Union is obligated to assist its members in the filing of grievances

which are properly written with accurate citations of possible violation. It is significant

that both the Public Division Director and Deputy Director of the Union are working with

its members at the Lorain County Community Action Agency to enhance skills and

leadership, and this is an opportunity for management of the Agency as well. The

recommendation is to not modify Article I as proposed by the Employer. It is strongly

suggested that the parties engage in a joint training opportunity regarding grievance

administration to be facilitated by a neutral entity following the execution of the new

Agreement. Again, the recommendation is current contract language.

2. Article VII. Appointments

The Union proposes to add language to Section B which would illustrate, on a

notice of vacancy, the “specific job/worksite location.”

The Union also proposes to add language to Section C which would include

notification to all candidates for a position who was selected for the position and the

“specific job/worksite location.” The Union proposes further that a Union representative

receive this notice.

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The Employer opposes language which would indicate job and worksite location.

UNION POSITION: The Union states that its proposal assists its members in making

informed decision when bidding on or applying for vacant positions. The Union argues

that there is a fundamental fairness to its proposal and does not create an undue hardship.

Knowing the location of the vacancy is important based upon employee residence and

potential career enhancement.

EMPLOYER POSITION: The Employer opposes inclusion of job and worksite location

based on its right to offer transfer to qualified employees without posting notice and also

based on its rights under circumstances contained in Article IX, Transfers. The Employer

cites a 2012 arbitration award (Exhibit JJ) which allows for the transfer of employees,

from one work location to another, based on specific circumstances without posting

notice. The Employer suggests that the Fact Finder not recommend this portion of the

Union’s proposal.

RECOMMENDATION: The argument of the Employer has merit. To include language

citing specific job and worksite location appears to be contrary to the award of the

arbitrator and Article IX. The recommendation is current contract language in Section B.

The recommendation includes the following addition to Section C. All applicants, except

external applicants, shall receive notification of whether or not they have been awarded

the position. The Agency shall send a copy of the award notice to a designated

representative appointed by the Union.

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3. Article X. Payroll and Work Schedules/Hours of Work

The Employer proposes direct deposit for all employees in the bargaining unit,

and, for those employees who may not possess a checking account, payment through a

debit card. The Employer proposes the elimination of paper checks. The Union opposes

the proposal and advocates for current language and practice except for employees hired

after January 1, 2014.

EMPLOYER POSITION: The Employer argues the efficiency of moving all employees

to direct deposit. Paper time sheets are no longer in use. Paper checks require a two

person process which includes the stuffing of envelopes. Currently fifteen employees in

a bargaining unit of 115 receive paper checks of which four are mailed and eleven are

hand delivered to work sites. Mailed checks have been lost, and there has been an

instance of a family member stealing an employee’s check. The Employer states that it is

willing to also utilize debit cards for any employee who may not have a checking

account, and the $4.00 card fee will be paid by the Agency. The use of a U. S. Bank

debit card will be convenient as there are many ATM machines throughout the region.

The Employer states that two Head Start bargaining units, represented by SEIU District

1199, receive pay by way of direct deposit and non bargaining unit employees at the

Agency are on direct deposit. The Employer argues that it has attempted to include direct

deposit in negotiations with the Union for a number of years, and this is the time to move

forward with this efficiency.

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UNION POSITION: The Union argues that employees have an inherent right to paper

checks. Payday is every other Friday, and the delivery of paper checks is not a burden on

the Employer as those who are making the deliveries are also completing other tasks

when visiting the four involved work sites. The Union is willing to modify the

Agreement to allow for direct deposit for employees hired after January 1, 2014. The

Union believes that the Employer’s proposal would create a hardship as many employees

work a part time schedule and are low paid.

RECOMMENDATION: Most places of employment have moved to direct deposit for

payroll purposes. The Employer makes a constructive argument that similar bargaining

units, which are represented by the Union, employ direct deposit, and non bargaining unit

employees of the Agency are currently on a direct deposit system. The Employer is

willing to pay the fee for a debit card, but many banks waive checking account fees for

individuals with direct deposit. Most employees of the bargaining unit receive pay

through direct deposit. It is less than efficient for the maintenance of two payroll

distribution systems at the Agency. The Union stated that there was a mechanical

problem with the direct deposit system, but this occurred approximately twelve years in

the past, and the current system is efficient and works without glitches. An additional

proposal of the Employer to modify Section G regarding a six hour work day for

custodial staff is not recommended as their was no comprehensive conversation regarding

this issue at hearing, and it appears there may have been a tentative agreement to

maintain the eight hour language although a tentative agreement was signed two years

ago. The proposal of the Employer is generally recommended as follows.

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Article X, Payroll and Work Schedules/Hours of Work It is the policy of the organization to pay employees pursuant to Section C of this Article on a regular basis and in a manner so that the amount and timing of such payments comply with applicable laws and regulations. A. Pay Period. The length of the pay period is two (2) weeks or ten (10) working days. It is the policy of the organization to pay employees by direct deposit on a regular basis and in a manner so that the amount, method, and timing of such payments comply with applicable laws and regulations. B. Pay Day. Pay day is the second Friday following the close of the two (2) week period. When a pay day falls on an official holiday, deposit notices will be issued the preceding day. C. Direct Deposit. Effective thirty days following the execution of this Agreement, the Agency shall pay employees only through direct deposit or a U. S. Bank Contour Visa Debit Card. If an employee is paid by direct deposit, the employee shall provide the Agency’s Finance Director with the name of the financial institution and the routing and account numbers of the account to which the employee’s pay is to be deposited. If an employee designates a financial institution that charges a fee to the Agency, the Agency shall notify the employee in writing. Within thirty (30) days of receiving such notice, the employee shall either designate another financial institution in writing, which does not charge a fee, or request in writing to continue with the originally designated institution and pay any fee charged to the Agency via payroll deduction. If the employee does not designate another financial institution which does not charge a fee within the thirty (30) day period, the Agency shall continue to deposit the employee’s pay in the originally designated institution and shall deduct via payroll deduction from the employee’s paycheck the amount of the fee. The Employer will provide assistance to employees in determining those financial institutions which do not charge fees for direct deposit of employee pay. D (former C). Current contract language. (Former C). Deleted. E. Current contract language. F. Correction of Payroll Errors. The Agency shall correct all payroll errors as soon as possible but in no case more than five (5) business days of the employee’s written

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notification to the payroll department. The correction shall be by separate check and shall be made available for the employee to pick up no later than the close of business on the fifth day following notification of the error, provided however, if the correction requires payment of twenty-five dollars ($25.00) or less, then in such event the payment shall be made in the next pay period. Remainder of Article is current contract language. 4. Article XII, Health Benefits

The Employer proposes a new and comprehensive health insurance plan to be

effective April 1, 2016. The plan includes a three level option. Option 1 is a fully

comprehensive plan which the Employer calls a “Cadillac Plan” with an employee

premium contribution of 15%. Option 2 includes higher deductibles with a reduction of

benefits. This plan includes an employee premium contribution of 10%. Option 3 is a

high deductible plan with no employee contribution. The Employer proposes the

establishment of a Health Savings Account (HSA) account for employees who enroll in

Option 3, $1500/$3000 in 2016, $1000/$2000 in 2017, and $500/$1000 in 2018. HSA

monies would roll over from year to year. The Employer proposes that employees share

the cost of Affordable Care Act luxury and excise taxes. Employee out of pocket costs

for prescription drugs will increase over the term of the Agreement. Beginning in year

2017, any increase in premium costs will be shared between the Employer and

employees. Costs for coverage for spouses who do not elect to participate in their work

place health care plan will increase to one-half the premium cost for that individual. The

Employer proposes to increase the number of hours an employee must work for

eligibility for health insurance from twenty-four hours per week to thirty hours. This

change in eligibility applies also for the life and accidental death benefit. The Employer

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proposes a requirement that employees utilize all forms of paid time off prior to short

term or long term disability. In general, the Employer proposes a complete revamping of

its health insurance plan provided to bargaining unit employees commencing in 2016

with the inclusion of an HSA plan for a high deductible option.

The Union generally opposes the Employer proposal, and suggests a contract re-

opener on or before May 1, 2016 by utilizing the Agency’s Health Care Benefits

Committee. The Union proposes to decrease the number of hours an employee must

work for insurance eligibility from twenty-four hours to twenty. Likewise, the Union

proposes the decrease in work hours for eligibility for the Life and Accidental Death

Insurance plan. The Union proposes 10% contribution for the current Option 1 and 0%

contribution for Option 2 for the duration of the Agreement. The Union proposal also

includes an increase from $50 per month to $100 per month for employees who are not

enrolled in the Employer’s health insurance plan.

EMPLOYER POSITION: The Employer states that the brokerage firm of Oswald

Companies assists the Agency in managing its health insurance plan and has developed

an effective three option plan. The Employer argues that current benefits are “rich” and

the costs are high. Employees do not effectively manage health insurance when benefits

are available at no monthly premium cost. The Employer argues that high deductibles

promote “consumerism.” This has not been the case for employees at the Agency as they

have been covered by a “Cadillac” plan for years. The trend in annual premium increases

to employers has been 10%. The Employer expresses its concerns regarding the

Affordable Care Act (ACA) and that the high level of benefits enjoyed currently by

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employees will require the payment of Cadillac and excise taxes beginning in 2018. The

Employer proposal would reduce the Agency’s exposure to future taxation of its benefit

plan, and the three option structure is very cost effective in controlling escalating health

insurance costs as estimated by the Oswald Company. The Employer states that its costs

will nevertheless continue to increase in 2017. The Employer states that, in order to

control its costs, it is necessary to propose that employees pay 50% of individual excise

taxes imposed by the ACA. The proposal to increase the employee’s cost of spousal

coverage, for those individuals who opt out of their own employer’s plan, is fair and

another reasonable cost savings aspect of the plan. The Employer will continue to pay

for unemployed spouses. The Employer argues that at least 50% of employees’ spouses

are eligible for insurance from other employers. Both the Employer and its broker state

that plans, in which 100% of an employee’s premium is paid, are rare and almost non-

existent, and this practice should be phased out by the Agency. The Employer and its

broker state that it wishes to promote consumerism among bargaining unit employees and

behavior must be modified. The Employer and broker state that some employees may be

“over insured.” The Employer argues that its costs for health insurance are higher than

other agencies in the region including the cities of Lorain and Elyria. The Employer

states that its proposal to increase eligibility from twenty-four to thirty hours in a

workweek is reasonable and that currently no bargaining unit employees will be

impacted. Finally the Employer states that its proposal to require employees to utilize all

leave time prior to moving to the disability plan is realistic as this is the current practice

in any event. The Employer states that it is critical that the fact finder recommend its

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health insurance proposal in order to provide cost control over escalating premium

increases and a shield from future taxes imposed by the Affordable Care Act.

UNION POSITION: The Union states that the Employer has budgeted the current health

insurance plan and is able to afford the continuation of current level of benefits. The

Union argues that a reopener in 2016 and involvement of the health insurance committee

is the approach which the fact finder should recommend. The Union states that the

Employer only presented its complete and comprehensive proposal at fact finding and

therefore had little opportunity to consider its details and impact on its members. The

Union argues that no one knows what the impact of the ACA taxes might be in 2017 or

2018. The Union states that there have been suggestions to limit or eliminate the taxes

for insurance plans which are contained in collective bargaining agreements. The Union

emphasizes the hourly wages of the bargaining unit. Employees are low paid while some

are earning at or near minimum wage. The proposed cost increases proposed by the

Employer’s plan cannot be afforded by bargaining unit members. The Union states that

bargaining history indicates that the current insurance plan has generally been maintained

by the parties through collective bargaining since the late 1990s. The Union argues that

the Employer’s proposal to move eligibility for insurance to thirty hours is an attempt to

avoid providing benefits to a portion of the bargaining unit. The Union states that the

Employer has not claimed an inability to pay for the current health insurance plan. The

Employer cannot argue a lack of funding. The Union states that its proposal to increase

the opt-out payment to $100.00 is a win-win for the parties. The Union argues that its

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members, many who are low paid, have come to rely on the current insurance plan. The

fact finder is urged to support its proposals.

RECOMMENDATION: Both parties present compelling arguments for their positions.

A primary concern of the Employer is the impact of the Affordable Care Act and possible

future penalties and taxes to which the Agency may be subject. The Union’s argument,

that this is still a few years in the future and the taxing structure may yet be modified, is

also accurate and compelling. There continues to be a great deal of uncertainty regarding

the impact of the ACA regarding health care plans contained in collective bargaining

agreements. The Union’s proposal of a reopener is compelling. It is problematic that the

Employer’s complete and comprehensive proposal was first presented to the Union at fact

finding. A significant change of this magnitude requires time and collective bargaining.

While the presentation by the Oswald Company representatives was informative and well

prepared, it was the first time the Union’s committee heard the details of the plan and

evidence indicates that it was the first time the Union heard a presentation from the

Oswald company even in light of the existence of the Health Care Benefits Committee to

which both parties are participants. Regarding the Ohio fact finding process, many

neutrals find it difficult to recommend a wholesale change to a provision of a collective

bargaining agreement if the parties have not spent significant time in negotiations over

the issue. The Employer makes a strong case regarding the Union’s failure to bargain

over many issues during the lengthy negotiations. But its comprehensive proposal on

health insurance was not presented until fact finding. It is critical that the parties engage

in bargaining. The Employer’s proposal is well developed with excellent research and

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data presentation. This neutral has made recommendations in fact finding which would,

to a degree, mirror portions of what the Employer has proposed in the instant matter

including the utilization of a Health Savings Account, but this generally occurred

following comprehensive bargaining by the parties. The Union’s argument regarding the

low pay of its members also has a great deal of merit. The parties must bargain a health

insurance plan which is affordable for both Employer and employees. Increased costs in

premium share, higher deductibles and the sharing of ACA taxes and future increases

could result in unaffordable costs for employees whose annual earnings range from

$7000.00 to $25000.00. The trade-off for higher employee costs in many negotiations is

in the wage area, whether across board increases or lump sum payments. That trade-off

is not available in the instant case as wage increases are strictly controlled by legislation

or administrative rule emanating from Washington or the Chicago regional Head Start

office. Historically, employee wage increases have been strictly limited to the cost of

living as determined by the Department of Labor, and some years including 2015, no

wage increases have been authorized. The Union has practically no ability, through the

bargaining process, to negotiate wage increases beyond those authorized by the federal

government, and it is conceivable that a three year collective bargaining agreement could

include one, two or no general wage increases. There is no trade-off between wages and

higher employee costs for health insurance. It is therefore critical that the parties

negotiate over the health care plan being sensitive to employee wage rates, Employer cost

savings issues and bargaining limitations. It is a mandatory subject of bargaining in any

event. There is no evidence that the parties have bargained over the Employer’s current

proposal.

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It is not unusual that the cost of health insurance is the subject of fact finding or

conciliation. Many employers have found it difficult to afford a particular cost sharing

plan with employees; cash reserves have been reduced; carry-over and unencumbered

funds have been reduced to an unacceptable level. This has been especially true during

the recession and its aftermath. Modifications to the cost of health care have become

necessary as jurisdictions must balance budgets. Evidence in the instant case indicates

that the Agency is funded by grants which cover the entire annual cost of doing business

including expenditures related to its health care plan. The Agency has no annual carry-

over. It is funded based on actual cost from one year to the next based on actual

expenditures including the cost of health care. There is no evidence that the Agency has

been directed from its funders to reduce its cost for health care or to implement a

reduction in benefits. This is not to say that a cost effective health care plan is not a

necessity. It clearly is critical. It is important that a plan is negotiated which is cost

effective and which includes the interests of both parties.

The recommendation generally includes the retention of the current health care

plan in 2015 and first quarter of 2016 with a re-opener regarding the health care plan

going forward. Language regarding the re-opener includes an interest based approach to

problem solving and a mechanism for resolving the bargaining process in a timely

manner while working with the interests of both parties.

The recommendation does not include the Employer’s proposal to increase the

number of hours an employee must work for inclusion in the plan, and it does not include

the Union’s proposal to decrease the number of hours. The recommendation does not

include a working spousal limitation although this issue may be addressed by the parties

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pursuant to the re-opener in 2016. The Employer’s proposal to require the utilization of

all forms of paid leave prior to utilization of disability plan is not included as evidence

did not indicate that there is a financial burden based on current practice. Finally, the

recommendation does not include the Union’s proposal to increase the monthly opt-out

payment.

Article XII, Health Benefits A. All employees who are in regular full-time and regular part-time positions in the bargaining unit and who are regularly scheduled to work a minimum of twenty-four (24) hours per week are eligible for Group Health, Dental, Disability and Life Insurance coverage. Employees are eligible for insurance coverage after thirty (30) days of employment. The parties agree that new hires shall be covered by the Employer’s health insurance after thirty (30) days of employment barring any prohibition by the carrier. To the extent required by law, the Agency’s medical insurance plan(s) and the provision thereof shall accord with the Patient Protection and Affordable Care Act of 2010, 26 U.S.C. ~5000A. 1. Current contract language.

B. Health Care Benefits

1. The parties agree that the Health Care Benefits Committee will meet annually beginning after January 1 to explore group health insurance plan alternatives and cost containment measures. Unless mutually agreed upon, the HCBC shall meet twice each year and the maximum duration of the meeting will not exceed ninety (90) minutes. In anticipation of each meeting, the Union and Agency shall prepare a summary listing of possible insurance plan alternatives and cost containment measures. The Union summary shall be emailed to the Agency’s Executive Director, Human Resources Director, and Finance Director and the Agency summary shall be emailed to the Union staff representative and the Union Executive Board member. The Union and Agency summaries shall be emailed ten (10) days prior to the meeting. There shall be no obligation to re-open this Agreement to re-negotiate the subject of health benefits unless both parties agree to do so except in the case of the 2016 re-opener as contained in Paragraph 2 of this section. The Health Care Benefits Committee shall be composed of two (2) employees appointed by the Union plus a Union staff representative and no more than three (3) management representatives. A member of the Agency’s insurance broker organization may also participate in any meeting of the committee.

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2. The Agency shall maintain the current health plans and Agency and employee contribution levels until April 1, 2016 as follows. The Agency shall continue to pay 100% of the monthly premium costs for Option 2 for all full-time and part-time bargaining unit employees who are regularly scheduled to work a minimum of 24 hours per week until such time as the parties agree otherwise. The Agency shall continue to pay 100% of the monthly premium costs while employees are on layoff status, unless the employee selects Option # 1, and then the Agency’s contributions shall be supplemented by the employee’s contribution which are identified in item 6 below. The parties agree to re-open negotiations on health insurance with written notice to negotiate on or before January 15, 2016 with the goal of concluding said negotiations by April 1, 2016. The parties agree to the utilization of an interest based bargaining model and, by mutual agreement, may involve a facilitator selected by mutual agreement for all or part of the bargaining sessions. In the event the parties fail to reach agreement regarding health care benefits by April 1, 2016, one or the other party may submit the dispute to interest arbitration. The parties will select an arbitrator by mutual agreement. In the event the parties cannot agree on an arbitrator, they will request a list of seven arbitrators from the Federal Mediation and Conciliation Service (FMCS) who are qualified to conduct interest arbitration and who are from the northern Ohio area. In the event the parties are unable to agree on one of the arbitrators on the list, one neutral shall be selected by the alternate strike method. The parties may also utilize the roster of neutrals maintained by the Ohio State Employment Relations Board which contains many neutrals who are experienced in this area. The decision of the arbitrator shall be final and binding. The cost of arbitration will be evenly split between the parties. It is understood that provisions of Article XII may be subject to change pursuant to the re-opener as contained in this Section of this article for the duration of the collective bargaining agreement. 3. Current contract language (insert current insurance carrier). 4. Current contract language. 5. Current contract language (Change effective date.) 6. Employee/Agency Contributions a. Employee monthly contributions for Option 1 shall be 10% of the total premium, and there shall be no monthly contribution of Option 2. These rates of employee contribution may change based on the health care re-opener as contained in Section B (2). The employee’s health and dental benefit contributions, if any, shall be deducted from the employee’s paycheck. The deductions shall be calculated as follows: monthly contributions multiplied by twelve (12) divided by twenty-six (26).

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b. Current contract language. c. Current contract language. d. Current contract language. 7. Current contract language. C. Pension Plan. Current contract language. D. Life and Accidental Death and Dismemberment Insurance. Current contract language. E. Dental Insurance. Current contract language. F. Short-term and Long-term Disability Benefits. Current contract language. 5. Article XIV, Holidays

The Union proposes to add Good Friday to the list of holidays contained in the

collective bargaining agreement. The Employer opposes the proposal.

UNION POSITION: The Union states that this proposal evolved during negotiations as

the parties considered a number of package proposals regarding health care and employee

credentials. The Union argues that at one point during negotiations the Employer was

willing to grant this addition to the list of holidays and now asks the fact finder to

recommend its inclusion.

EMPLOYER POSITION: Considering that the Union rejected the package proposal

which included the Good Friday holiday and the subject issues remain unresolved, the

proposal should not now be considered by the fact finder. The Employer argues to

maintain current contract language.

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RECOMMENDATION: The Employer’s position is meritorious. The Union’s proposal

is not recommended. Maintain current contract language.

6. Article XVI, Leaves of Absence

The Union proposes to allow employees to utilize accumulated sick leave, which

is held in reserve based on moving to PTO days in the previous negotiations, before the

use of PTO for illness or injury. Current practice, as contained in the Agreement, allows

for the use of accumulated sick leave following three days of PTO for an illness or

injury. The Union proposes the use of PTO or sick leave in increments of thirty minutes

as opposed to the current practice of one hour. The Union proposes further that

employees will be paid for all remaining accumulated, reserve sick leave at time of

separation of employment.

The Employer rejects the proposed changes to Article XVI.

UNION POSITION: The Union argues that the reserved and accumulated sick leave was

earned by employees and is now difficult to access. The parties agreed to move to a PTO

approach, but there was an agreement to hold previously accumulated sick leave in

reserve. The Union argues that accumulated sick leave should be available to employees

prior to using PTO. In addition, as the accumulated sick leave belongs to those

employees who have a balance, it should be cashed out and paid upon separation of

employment. The Union states that there was an understanding when the parties agreed

to move to the PTO system that accumulated sick leave would be available, but the

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reality has been that employees with a balance are rarely able to utilize the benefit. The

Union argues further that its proposal to reduce the utilization of PTO from one hour to

thirty minute increments does not created an undue burden for the Employer.

EMPLOYER POSITION: The Employer states that the reserved accumulated sick leave

is carried as a liability, and it is not able to budget the cost of cashing out balances upon

separation of employment as proposed by the Union. The Employer states that the PTO

system provides an adequate benefit in the case of sick or injury leave. It is inappropriate

to utilize accumulated sick leave in place of or prior to PTO and asks the fact finder to

maintain status quo for Article XVI.

RECOMMENDATION: No evidence was presented at hearing to indicate that

employees have been disadvantaged by the one hour increment for use of PTO. The

recommendation does not include the proposed reduction to thirty minutes. The

Employer’s argument, that it is difficult to budget a cash-out of reserved accumulated

sick leave, has merit. Unless an employee has announced retirement well in advance, it

generally is not known when an employee may separate from the Agency. The cash-out

proposal is not included in this recommendation. The Union’s argument, that there are

few occasions that an employee is able to utilize reserved accumulated sick leave, is

compelling. When the parties bargained to move to the PTO system, they agreed to place

accumulated sick leave in reserve for employees with a balance. This was done

intentionally. There was no cashing out of all or part of the benefit. To restrict the use of

this earned leave seems to violate the spirit in which it was negotiated. The

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recommendation includes the ability to use reserved accumulated sick following two days

of PTO for an illness or injury and following the exhaustion of PTO.

Article XVI, Leaves of Absence A. Paid Time Off First, Third, Fourth and Fifth Paragraphs current contract language. In addition to the above, all bargaining unit members who have completed their probationary period shall be entitled to five (5) additional days of PTO per calendar year. The five additional days of PTO will be advanced to the employee one PTO day per month for the months of August, September, October, November, and December. All PTO shall be utilized in increments of no less than one (1) hour. The employee must provide three (3) working days notice to the Agency and receive approval of the employee’s supervisor prior to the utilization of PTO, except in cases of illness or emergency. Employees may use their accumulated sick leave if they have utilized accrued PTO for two (2) days for an illness or injury and in the case of exhaustion of PTO for an illness or injury. After an employee utilizes PTO and/or accrued sick leave for three (3) consecutive days for an illness or injury, the Agency may require the employee to submit a doctor’s statement to verify their illness or injury. Should any federal or state law be enacted subsequent to the adoption of this Agreement, then in such event the terms of this section shall be automatically reformed to conform to such law. 7. Article XXI, Grievance Procedure

Both parties have proposed numerous modifications to the Grievance Procedure.

The Employer’s proposal requires that each filed grievance include violation, location of

violation, detailed facts, names of all witnesses, all documentation including electronic

media and other information. A group grievance must name all members of the group,

individual damages and remedy, and each member of the group must sign the grievance.

The proposal eliminates grievance mediation except in the case of the discharge of an

employee. The proposal states that caucus time utilized by a party during a grievance

meeting or arbitration is limited to twenty minutes. Grievances regarding written

reprimands are not arbitrable.

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The Union proposes a general re-writing of the arbitration process including the

scheduling of an arbitration hearing no later than 120 days following the appointment of

the arbitrator or a longer time period if the matter is being appealed through the Union’s

internal process. Current language requires the hearing be conducted no later than 60

days following appointment. Based on the Union’s proposal to allow for the 120 day

period for the scheduling of the hearing at arbitration, the Union proposes a limit of five

months regarding the Employer’s potential financial liability unless the arbitrator is

unable to schedule a hearing within the noted period of time. The Union agrees to limit

grievance mediation solely to discharge appeals. The Union additionally agrees to

language limiting caucus time to twenty minutes.

EMPLOYER POSITION: The Employer reiterates its concerns regarding the “Purpose”

article of the Agreement. The Union has inundated the Employer with many grievances

which do not provide sufficient information to allow for proper response. Additionally,

the Employer states that Union caucus time has often been unreasonable, and this has

occurred during grievance mediation sessions as well. The Union has not provided

sufficient information regarding group or class action grievances making it difficult for

adequate response. With the significant number of grievances, mediation has been

largely ineffective. The Employer states that it is opposed to any expansion of time

limits in the arbitration process. The Employer states that it has been forced to file an

unfair labor practice charge against the Union to the NLRB based on the inefficient and

wasteful use of the grievance process.

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UNION POSITION: The Union states that it must protect the fundamental right of

bargaining unit members to the grievance process. The Union states further that it

recognizes problems which have occurred with grievance administration at the Agency

and has attempted to resolve inefficiencies. To this end the Union states that it agrees

with the Employer’s proposal to limit mediation to discharge cases and to limit caucus

time to twenty minutes. The Union states that its proposal regarding the 120 day limit for

the scheduling of the arbitration hearing is necessary based on its internal process of

approving grievances for arbitration and the resulting internal appeal process. The Union

proposes the five month limit of liability as a way to mitigate expanded time. The Union

states that its proposal is an attempt to address the concerns of the Employer while

protecting employee rights and asks the fact finder to recommend its proposed

modifications to the grievance and arbitration procedure.

RECOMMENDATION: The Employer’s frustration with the number of grievances over

the past two years is understandable. 90 or 100 grievances in a bargaining unit of 115

employees speak to issues of relationship. The Employer believes that its proposal,

which requires detailed information including a list of witnesses and all documentation,

remedies the issue of incomplete information and continuous citation of the “Purpose”

article. But there is a general principle recognized by advocates and arbitrators that the

grievant does not possess, and is not expected to possess, the sophistication to complete a

grievance document at the level proposed by the Employer. Most bargaining unit

members have little understanding of detailed contract language. The Union’s argument,

that the fundamental right to the grievance procedure must be guaranteed, is convincing.

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The Union also admits, in its pre-hearing statement, that grievance administration

requires improvement at the Agency. To this end the Deputy Director of the 1199 Public

Division has been working with the Union chapter at the Agency. The Ohio Division of

SEIU District 1199 conducts comprehensive grievance and arbitration administration

workshops on a regular schedule, and many of the concerns expressed by the Employer

are addressed during these sessions. Participation by Agency Union leadership is highly

recommended. Unfortunately grievance mediation has not been completely helpful to the

parties, and they therefore have agreed to limit this process to cases involving the

discharge of an employee. They likewise have agreed to limit caucus time to twenty

minutes. The Union proposes to expand the time an arbitrator must hear a case from 60

to 120 days in order that its internal process of approving grievances for arbitration has

sufficient time for decision making. The Employer’s argument, that the expansion of any

time limits has a negative impact on the entire procedure, is fair and constructive. The

recommendation includes a limit to the scheduling of the hearing to 90 days. The parties

are, of course, often at the mercy of the arbitrator’s schedule. A grievance and arbitration

procedure should be designed for resolution of contractual disputes at the lowest level

possible and in the shortest amount of time including arbitration. The recommendation

does not include the Union’s concession of a five month liability limitation. A party

always has the right to suggest liability limitation at arbitration in any one case based on

issues of timeliness and delays. In addition to the recommendation which follows, the

parties are urged to engage in a one or two day joint grievance and arbitration workshop

conducted by a recognized neutral as a way to correct procedural issues and matters of

perception. Time spent in unproductive grievance meetings and at the NLRB is

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frustrating and inefficient. The parties may wish to explore the possibility of a permanent

panel of arbitrators who would be required to hold hearings and issue awards in a more

timely manner based on the agreements of the parties.

Article XXI, Grievance Procedure A. Current contract language. B. Current contract language. C. Current contract language. D. Current contract language. Step 1. Current contract language. Step 2. Current contract language. Step 3. Current contract language. Step 4. Mediation a. If a grievance involves a discharge and is not settled, granted, or withdrawn under Steps 1-3 of this article, the grievance may be appealed to mediation by the employee or the Union b. Current contract language. c. Current contract language. d. Current contract language. e. Current contract language. f. Current contract language. g. Current contract language. h. Delete. Step 5. – Arbitration a. Any grievance involving a contract interpretation, suspension of three or more days, or discharge that is not settled, granted, or withdrawn under this article may be arbitrated if the Union so elects. The Union shall notify the Agency of its intent to arbitrate a grievance within twenty-one (21) days of the Step 3 decision of the Agency or twenty-one (21) days following the Step 4 mediation session for grievances involving the appeal of a discharge. As part of the appeal to arbitration, the Union will request a list of seven (7) impartial arbitrators from the Federal Mediation and Conciliation service (FMCS) within twenty-one (21) days of the Step 3 decision of the Agency or twenty-one (21) days following the Step 4 mediation session for grievances involving the appeal of a discharge. The Union shall serve the Director of Human Resources with a copy of the request. The request to FMCS shall specify that the arbitrators are to be from the metropolitan area.

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b. Current contract language. c. Arbitration hearings shall be scheduled by mutual agreement of the parties. However, in no case shall an arbitration hearing be held more than ninety (90) calendar days after the arbitrator has been selected. If the arbitrator selected to hear the grievance is unable to accommodate the parties within the ninety (90) day time limit, the parties may select the last arbitrator stricken from the list provided by FMCS or agree to accept a date provided by the first selected arbitrator. d. Current contract language. e. Current contract language. f. Current contract language. E. Current contract language all sub sections. F. General Provisions Applying to Grievance Procedure a. Current contract language. b. Current contract language. c. Current contract language. d. Current contract language. e. Class action grievances (group grievance) are grievances affecting more than one (1) individual in the bargaining unit, and shall be filed directly to Step 2 of the Grievance Procedure. The Union will provide a list of the affected employees as known at the time of the filing of the grievance. f. Grievances involving written reprimands shall not be arbitrable. g. The parties agree to prepare for all meetings, mediation sessions and arbitration hearings in advance. Absent the mutual consent of both parties, each caucus shall be limited to twenty (20) minutes in duration. 8. Article XXXII, Duration

Although the Duration article was an open issue prior to the fact finding hearing,

both parties proposed a three year Agreement commencing with the date of this fact

finding report and recommendation. It is so recommended.

9. New Article, Educational Credentials Article XVIII, Employee Development

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The Employer proposes a number of substantive changes to the qualifications of

head teachers and in particular those who do not possess a bachelor’s degree. An initial

proposal was made as a part of the pre-hearing statement and during the second day of

hearing. At the commencement of the third day of hearing, the Employer submitted a

revised proposal regarding Educational Credentials. This comprehensive proposal

requires head teachers, who do not possess a BA, to be actively enrolled in a degree

program in early childhood education. Employees must complete six credit hours per

calendar year with the exception of non BA degreed teachers who are between the ages

of 55 and 59 who are required to earn three credit hours per calendar year. Head teachers

who are 60 years of age are exempt from the requirement. All credits must be earned

from an on-line degree program which is provided by the University of Cincinnati.

Employees may use the Employer’s computer system but may not engage in course work

during regular working hours. Enrolled employees will be provide with an annual

stipend of $2000.00 for those enrolled for six credit hours per year and $1000.00 for

those pursuing three hours. Employees must receive a grade of C or better for each

course taken. Employees who receive financial assistance must continue employment

with the Agency for a minimum of three years, or they must reimburse the Agency. The

Employer proposes further that affected employees who do not comply with these

provisions will be subject to discipline, layoff or reduction in employment hours. An

employee may request a one-time waiver for one semester based on extenuating

circumstances.

The Union’s proposal regarding employee credentials is complicated in that its

outstanding issues and proposal relate to Assistant Teachers. The position of Assistant

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Teacher has been eliminated by the Employer, and this action is now the subject of an

unfair labor practice charge which was brought by the Union and is pending a decision by

the NLRB. The Union was not aware of the Employer’s comprehensive proposal prior to

the submission of per-hearing statements.

EMPLOYER POSITION: The Employer states that a certain number of Head Teachers

must possess an appropriate bachelor’s degree. There is a legislative and administrative

mandate that a certain percentage of Head Teachers become degreed at the BA level.

This means Associate Degreed teachers must move to the higher level. The Employer

states that, in order to achieve this goal, it is willing to provide a $2000.00 stipend per

year toward the cost of the on-line course work. In addition, there are other funding

streams which may cover the cost of tuition. The requirement to continue employment

for three years following the completion of course work is a federal mandate. The

Employer emphasizes that the quality of education is critical for the children served by

the Agency. The Employer states that it is in the midst of a five year funding cycle. In

the near future, the Agency will be forced to compete for its funding streams with other

entities including area school districts. The Employer states that it will be forced to be

much more competitive than in the past, and it will be critical that all head teachers in the

program possess Bachelor’s Degrees in the approved subject matter. This may be critical

to the survival of the Agency. The Employer argues that the greater level of degrees play

a major role in the “Step Up to Quality” program which is developed by the State of

Ohio. The goal is the awarding of a five star center, and the credentialing of the staff in

the specific location plays a significant role in the award process. Additional funds

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become available, based on the awarding of a three, four or five star center, and these

monies are utilized to enhance additional quality programs. The Employer states that all

programs must be star rated by 2020 for state funding eligibility. The Executive Director

states that there is an urgency to move to a higher level of competency and

competitiveness, and the Agency board has directed the administration to move in this

direction. The fact finder is asked to recommend the proposal which is critical regarding

the future of the Agency.

UNION POSITION: The Union states that it had not seen the proposal of the Employer

until fact finding. The Union states that Bachelor Degrees are not mandated, and an

Associate Degree is acceptable. The mandate, that 50% of all Head Teachers across the

entire national program possess bachelor’s degrees, has been met. The Employer’s

perceived urgency is not realistic. The Union states that the cost of six credit hours per

year is approximately $5200.00. While the stipend proposed by the Employer is helpful,

the cost of tuition is still a financial burden for bargaining unit employees who are low

paid. The Union argues that the various centers maintained by the Agency are able to

achieve a five star rating while utilizing current Head Teachers and Assistant Teachers.

The Union states that the Employer eliminated the position of Assistant Teacher without

bargaining with the Union which precipitated in the filing of an unfair labor practice

charge. The matter is awaiting decision by the NLRB. The Union states that it desires

the Agency to stay competitive, but there is a difference between a “need or a want.”

Much of the Employer’s proposal is a “want.” The Union proposes a meeting between

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the parties in the event of changes to educational requirements upon the reauthorization

of the Head Start Act and asks the fact finder to so recommend.

RECOMMENDATION: The Union claims that the first time it was provided with the

Employer’s comprehensive proposal was at fact finding. Evidence indicates that this

claim is accurate. Then the Employer revised portions of the proposal during the three

week period between the second and third day of the hearing. The revisions were

proactive, but the Union was not provided with the document until the commencement of

the third day of hearing. The parties have been in collective bargaining negotiations for

over two years. There is no evidence that the parties engaged in bargaining regarding the

Employer’s specific proposal for increased levels of credentialing of its Head Teachers.

It is problematic that the Employer’s comprehensive proposal was shared with the Union,

for the first time, at fact finding which did not allow for bargaining over it by the parties.

This scenario impedes the fact finder’s ability to recommend substantial changes which

involve important terms and conditions of employment and which includes a significant

shift in culture especially in light of a seventeen year collective bargaining relationship.

Those bargaining unit employees, who are potentially impacted by these changes, were

hired originally without the expectation of a required BA degree. The portion of the Ohio

statute regarding fact finding anticipates that the parties have seen specific proposals

prior to hearing and engaged in at least a minimum of discussion. This has not occurred

in the instant matter. This being said, there is merit to the Employer’s proposals. The

Agency is concerned about its competiveness going forward, and it desires to provide the

highest quality experience for the children and families it serves. This undoubtedly is the

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Union’s interest as well. The Employer strives to attain five star ratings at its various

sites in the County. This has the dual affect of higher quality and additional grant

funding. But the leap from voluntary to mandatory procurement of Bachelor’s Degrees is

too great, in this bargaining setting, for a recommendation from a neutral when the parties

have not bargained over the Employer’s comprehensive proposal and the modifications to

it which were submitted during the third day of hearing. In a sense, the Employer

bargained with itself with no input from its bargaining partner. It should be noted that the

credentialing proposal impacts Head Teachers without bachelor’s degrees and those who

are less than 60 years of age, approximately fourteen employees in the bargaining unit. It

must also be noted that the Head Start program, nation-wide, meets the mandate of 50%

degreed teachers as does the Agency. In giving consideration to the guidelines set forth

in the fact finding statute, it must be noted that there were no comparables provided by

the Employer to persuade those at the table that other Head Start Agencies were moving

in the same direction. This recommendation does not ignore the positive features of the

Employer’s proposal but instead suggests a voluntary program with an increased

education stipend to encourage participation. Further, the recommendation includes the

formation of a special labor management committee to monitor the education credentials

of bargaining unit members going forward and to make joint recommendations or

perhaps the development of a memorandum of understanding regarding a shared interest

of moving to all degreed teachers. The recommendation does not address the Union

proposal regarding Assistant Teachers’ educational issues as the dispute regarding this

classification is pending at the NLRB which will, in any event, determine the status of

employees who held the position and may possibly return the parties to the bargaining

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table. The Employer’s proposals regarding age limitations are not included in light of the

voluntary nature of the recommended provision.

New Article, Educational Credentials A. Any Head Start Head Teacher without a bachelor’s degree in early childhood education is encouraged to enroll in and complete said degree program. The employee may complete six (6) or more credit hours per calendar year as part of that program. The employee must receive a grade of “C” or better in all courses. B. All credits must be earned through the University of Cincinnati, including the utilization of its internet-based programming. However, employees must not obtain credits, attend class, or work toward obtaining credits while on Agency time. C. The Agency will pay each Head Start Head Teacher enrolled at the University of Cincinnati a $2500.00 annual stipend if pursuing at least six (6) credit hours, or $1250.00 if pursuing three (3) credit hours toward meeting the requirements and obtaining the credits as set forth above. The stipend will be available upon satisfactory completion of the probation period. However, this payment is subject to funder approval (budget approval) and may be reduced in proportion to any reduction in Head Start funding. Payment will be made upon proof of enrollment and will be paid directly to the University of Cincinnati on a return-to-payor basis (non-refundable to employee). D. The Agency reserves the right to audit employee transcripts, degrees and bursar records. Each calendar year, employees, who are enrolled in a degree program, are required to submit evidence of their degree(s) or transcript(s). Teachers shall submit a copy of their college transcript or an official document from the University depicting the number of credit hours received as well as a degree audit depicting the remaining courses necessary to realize a Bachelor’s Degree and the expected date of graduation to the Director of Human Resources within one (1) month of each semester or quarter for which the employee was enrolled in the University. E. According to Section 648A(a)(6) of the Head Start Act (42 U. S. C. ~ 9843a), individuals who receive financial assistance from Head Start to pursue a degree, are required to teach or work in a Head Start program for a minimum of three (3) years after receiving the degree, or they must repay the total or prorated amount based on the length of service completed after receiving the degree. Therefore, if an employee receives Head Start dollars for college tuition assistance but does not fulfill the Head Start three year service requirement, the employee must repay the Agency accordingly: 100% of the

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amount issued if the employee leaves the Agency within the first twelve (12) months of receiving the degree; 75% of the amount issued if the employee leaves the Agency within the second twelve months of receiving the degree; and 50% of the amount issued if the employee leaves the Agency within the third twelve months of receiving the degree. F. The parties agree to the formation of a special labor management committee which will encourage Head Teachers to pursue a bachelor’s degree in the appropriate area of study. The committee will monitor the progress of bargaining unit employees who are pursuing degrees and will monitor federal regulations as they may pertain to the educational requirements which impact the bargaining unit. The committee may consider alternative options if the voluntary program has not been successful. The special labor management committee will meet during the week of April 1, 2016 and quarterly (or more by mutual agreement) thereafter. The labor management committee will be comprised of six members, three representing the management of the Agency and three representing the Union. One of the Union members may be the Administrative Organizer from District 1199. Article XVIII, Employee Development

The Employer proposed modifications to this provision of the Agreement to

match its proposals regarding Educational Credentials as illustrated above. The Union

had not responded specifically to the Article XVIII proposal as its comments were

directed to the Employer’s demands regarding Educational Credentials.

RECOMMENDATION: The recommendation is an attempt to maintain consistency with

that of the new article, Educational Credentials. The Employer proposal regarding

discipline or corrective action is not included with the recommendation as there was no

evidence at hearing to suggest that issues of failure to complete training has been an issue

at the Agency. The parties may wish to combine the two articles into one.

Article XVIII, Employee Development Policy. Current contract language.

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A. Career Development. Employees will, subject to funding limitations, be provided opportunities for training and education to achieve and maintain credentials for their position, and when deemed appropriate by the Agency, other positions within the Agency. To accomplish the foregoing, the employee shall periodically, but not less than annually, meet with their immediate supervisor and/or the Staff Development Coordinator to establish educational and training requirements and timelines to develop a Professional Development Plan (PDP). If the educational opportunity is required for the employee to attain or maintain the credentials for their current position, the employee shall be required to complete the training within the time period prescribed. All Professional Development Plans must be received and approved by the employee’s Department Director. To advance educational and training opportunities for employees, the Agency will offer in-service and credit-based training with local colleges and universities and other institutions or government agencies. University credit based training must not be completed on agency time, and employees who are required to attend other college or university training that has an affect on working hours must receive prior approval from the Agency. To the extent reasonably feasible, the Agency shall continue to provide both inter-agency and external instructors for training programs with emphasis on Head Start requirements. If feasible, the Agency shall provide training to all new hires in the Head Start Program prior to the start of the school year. The Agency shall make available relevant information on outside courses, seminars, and other training opportunities for employees. Recognizing the needs of the Agency to employ qualified credentialed employees, employees shall make every effort to avail themselves of all educational and training opportunities made available by or through the Agency. B. Head Start CDA and Related Training Subject to available funding, Head Start classroom staff shall be provided an opportunity for training in the Child Development Associate (CDA) or related early childhood program area. The training must be designed to enhance staff capabilities to carry out the Head Start program objectives. Training for classroom staff must be directed toward upgrading skills and competencies for delivering services to Head Start children and families. An employee who fails to successfully complete such training, once enrolled, shall pay $25.00 per pay to reimburse the Agency with full reimbursement required. C. In-Service Training

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Current contract language. D. Educational Expenses Training and education money shall be provided as available and in accordance with the LCCAA Policy aligned with the Head Start Act and/or any other federal grant requirements. In regards to credit-based training, an employee who fails to receive a passing grade (C or better) or fails to complete a course excluding Lorain County Community College Partnership shall pay $25.00 per pay to reimburse the Agency with full reimbursement required. An employee who fails to receive a passing grade (C or better) for fails to complete a course for Lorain County Community College Partnership courses or approved bachelor courses shall pay $50.00 per pay to reimburse the Agency with full reimbursement required. Proof of course completion and a passing grade must be provided to the Director of Human Resources no more than 45 days after course completion. An employee’s failure to provide such proof shall pay reimbursement as detailed above. E. According to Section 648A(a)(6) of the Head Start Act (42 U.S.C. ~9843a), individuals who receive financial assistance from Head Start to pursue a degree are required to teach or work in a Head Start program for a minimum of three (3) years after receiving the degree, or they must repay the total or prorated amount based on the length of service completed after receiving the degree. Therefore, if an employee receives Head Start dollars for college tuition assistance but does not fulfill the Head Start three year service requirement, the employee must repay the Agency accordingly: 100% of the amount issued if the employee leaves the Agency within the first twelve months of receiving the degree; 75% of the amount issued if the employee leaves the Agency within the second twelve months of receiving the degree; and 50% of the amount issued if the employee leaves the Agency within the third twelve months of receiving the degree. F. Eligibility Current contract language. Section C of “Educational Credentials” delineates tuition stipends available for Head Start head teachers pursuing degrees. 10. New Article, Disability and Sick Leave Insurance Deduction

Early in the negotiations the Employer proposed to cease deducting the premium

for a disability and sick leave plan from the pay of employees. This was not an Employer

proposal at Fact Finding. The Union has proposed that a new article be added to the

41

Agreement in order to preserve the deduction for employees who wish to participate in

the insurance program which is funded solely by individual employees.

UNION POSITION: The Union states that in the past the Employer introduced

employees to an AFLAC insurance plan which provided disability and long term sick

leave benefits. This was a supplemental insurance plan which was funded solely by

employees. At a later time, Lincoln Insurance became the administrator of the plan. The

Union states that twenty-one bargaining unit employees participate in the plan currently

and wish to retain payroll deduction.

EMPLOYER POSITION: The Employer prefers to end payroll deduction of the plan as

it is burdensome for its payroll function. The Employer states that it is willing to retain

the deduction for current employees who participate in the Plan but proposes that payroll

deduction will not be available for new enrollees.

RECOMMENDATION: In the past, AFLAC sales staff generally contacted employers

and persuaded them to offer payroll deduction for employees who decided to purchase

their insurance products, and it usually was employer representatives who allowed for

sales staff to introduce the plans at the worksite. This may very well be the case at the

Agency. The disability insurance product may no longer be available to currently

enrolled employees if payroll deduction is eliminated. The recommendation corresponds

to the Employer’s suggestion to retain payroll deduction for current employee

participants but to not make the deduction available to new enrollees beginning with the

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effective date of the new Agreement. In addition, it is not recommended that a new

article be added to the Agreement but instead add new Section G to Article XII, Health

Benefits as follows.

Article XII, Health Benefits G. Lincoln Insurance Deduction The Employer agrees to continue to provide payroll deduction for employees currently enrolled in the Lincoln Insurance (or its successors) Disability Plan. Payroll deduction is not available for any new enrollees in the Plan. It is understood that the insurance premium is paid solely by those employees who are enrolled, and the Employer is not responsible for any premium cost whatsoever. 11. Article XI, Wages

Both the Union and Employer agree that across the board wage increases are

available only based on cost-of-living allowances which are built into the annual Head

Start grant, and these increases are not guaranteed annually. The Head Start grant

provided for a COLA increase in 2012 and 2014. No COLA increase is available for

2015.

The Employer proposes numerous modifications to the Level Placement provision

of the Agreement. Cook from Level 2 to Level 4; Early Childhood Services Worker from

Level 2 to Level 4; elimination of Early Head Start Assistant Teacher in Level 3;

elimination of Early Head Start Head Teacher in Level 5; Early Head Start Teacher with

qualifying degree and Head Teacher with qualifying degree from Level 5 to Level 6 or

Level 7 with qualifying Bachelor’s or Master Degree; elimination of Weatherization

Technician; elimination of Warehouse Person; creation of Energy and Emergency

Services Advocate II in Level 5; addition of Collaborative Educator in Level 5. The

Employer proposes additional qualifying degree standards based on its Education

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Credentials proposal. The Employer additionally makes numerous proposals regarding

step placement on the various pay levels. The Employer proposes a notice to bargain by

the Union in the event changes in job responsibilities in a classification change during the

term of the Agreement.

The Union proposes a number of modifications to the Level Placement provision

of the Agreement. Assistant Teacher from Level 3 to Level 4; Family Service Worker

from Level 4 to Level 5. The Union proposes bargaining between the parties if additional

funding becomes available from various sources during the term of the Agreement. The

proposal includes language regarding Step Up to Quality monies, 50% of awarded funds

to be set aside for wage increases or monetary awards for those employees who work at

the designated site. The Union proposes a 3% increase in the base hourly wage for

employees who utilize a language other than English during required duties and for the

day such skill is utilized.

EMPLOYER POSITION: The Employer states that its budget is comprised of a number

of grants. Grant monies must be spent for a specific purpose as outlined in the grant

request. Grant monies do not accumulate from year to year. There is no carry-over in the

budget of the Agency. Grant monies are segregated from one another and are audited

each year. Each grant includes funds for administration. The Head Start grant is the

greatest source of revenue for the Agency. Budgeting is complex. The Employer states

that Head Start grant monies tend to be flat from one budget year to the next. Head Start

employees are paid exclusively from Head Start grant monies including all related

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expenses and costs of the program (Exhibit U). The COLA increase, when authorized, is

paid from monies exclusively allocated for the increase, and no other funds may be used

to supplement hourly wages (Exhibit V). The COLA increase becomes a permanent

wage increase. Employees received a 1% COLA increase in wages in 2012 (Exhibit X)

and 1.3% in 2014 (Exhibit Y). These increases were effective August 1 of the affected

year as the Agency’s annual budget is effective August 1 of each year through July 31.

The Employer states that its proposals regarding increases in wage levels for certain

positions are based on increased job responsibilities and greater credentialing

requirements. The addition of the Energy and Emergency Services Advocate II is due to

increased responsibilities and self direction. The Employer states that the Collaborative

Educator position has been current practice for some time. The Employer states that it

has eliminated the positions of Weatherization Technician and Warehouse Person due to

budget cuts and contracting out of the involved duties. The Employer argues that its

proposal regarding its ability to modify job responsibilities, with the right of the Union to

demand bargaining, is based on a history of grievances and conflict between the parties.

The Employer emphasizes that Step Up to Quality funds are not available for wage

increases although it is possible to grant lump sum merit awards limited to employees at

the specific site and who have direct involvement with children. The Employer argues

that continued bargaining with the Union over these funds would be counter productive

based on the failure to achieve a settlement during current negotiations. Finally, the

Employer challenges the Union exhibits which create the notion that bargaining unit

members are significantly low paid and are at poverty level incomes. The exhibits fail to

consider appropriate levels of additional family income. The Employer submits pay

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comparisons which indicate that Agency wages are comparable and, in some cases,

greater than similar organizations providing Head Start and other services to the

community. The Employer believes its proposal is consistent with its desire to be

competitive now and in the future.

UNION POSITION: The Union argues that half of the bargaining unit does not meet

standards for a living wage, and 57% of the bargaining unit, with one child, qualify for

Head Start. The Union is aware of the grant restrictions concerning across the wage

increases but argues that any opportunity to increase wages or grant lump sum merit

increases should be explore by the Employer and bargained with the Union during the

term of the Agreement. The Union argues for its proposal to utilize a minimum of 50%

of Step Up to Quality award funds for employee wages at the affected site. The Union

argues further that temporary wage increases be granted from any grants which may

provide funds which may be used to supplement wages during their term. The Union

states that the parties meet in October of each year to review unspent and unencumbered

funds which may be available to benefit bargaining unit employees. The Union cites two

Head Start collective bargaining agreements which contain provisions for the bargaining

of pay increases or merit bonuses based on the awarding of Step Up to Quality awards

(Union Exhibits 1 and 12). The Union’s proposals regarding upgrades in pay level are

based on increased duties, and its proposal of an increase in pay for employees, who

utilize another language in the performance of their duties, is an attempt at rewarding a

necessary skill level. The Union asks that the Fact Finder give consideration to its wage

proposals and review the comparable collective bargaining agreements which allow for

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bargaining over Step Up to Quality funds. The Union submits the comparable

Agreements pursuant to ORC Section 4117.14 (G) (7) (b).

RECOMMENDATION: The parties make credible arguments to support their positions

regarding wages. The underlying factor in all of this is that bargaining over wages is

very limited as generally only COLA pay increases are granted when authorized by Head

Start. These increases are small and are not authorized every year. Across the board

increases are generally not negotiable. The Union presents exhibits which suggest that

bargaining unit wages do not match, in many cases, what would be considered a living

wage. The Employer challenges the theory and standards suggested by the Union and

illustrates that Agency wages are comparable, and even higher in some cases, to other

Head Start agencies in Ohio. It is not necessary to decide which party is correct. The

fact is that wages in the industry and at the Agency are in the lower range. Employees

are faced with increased costs in the market place and they share with the Employer the

increased cost of health care. The inability to bargaining over across the board wage

increases, and the fact that COLA increases are not authorized every year, drives the

Union’s proposal to bargain over every possible penny which may be available for

wages. The prospect of continual negotiations is not appealing to the Employer as

bargaining for a new collective bargaining agreement has taken over two years and

sessions have been difficult and challenging. This recommendation gives consideration

to all of these factors and concerns. The recommendation does not include the

Employer’s proposal to delete certain classifications from wage levels. This is a matter

which must be resolved by the parties or through litigation at the National Labor

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Relations Board. Classifications, which currently have no employees, cannot unilaterally

be removed from the bargaining unit. It is not unusual that a classification would not

have any employees at a point in time. The recommendation does not include the

classification of Collaborative Educator as proposed by the Employer. This position is

not found in the list of classifications represented by the Union. The Union appeared

confused regarding this position at hearing, and there was no definitive answer regarding

this being a parenthetical title. The position of Assistant Teacher is retained as the

litigation at the NLRB regarding this classification has not been concluded.

The recommendation includes the various increased wage levels proposed by the

Employer for certain classifications based on increased responsibilities. It also includes

the upgrades for head teachers who attain degrees as it is anticipated that employees in

that classification will opt to take advantage of the recommended tuition stipends

pursuant to the new article regarding Education Credentials. Although the

recommendation is for a voluntary program, the parties should encourage head teachers

to move in this direction as it is the interest of both parties to provide the highest level of

service and to also remain competitive regarding successful grant applications. The

recommendation regarding step placement essentially maintains current contract

language regarding degrees. Employees who are not teachers may continue on their

existing steps based on attained degree. The Employer’s proposal in Section J of the

article is reasonable in that substantial changes in job responsibilities of a particular

position are a management right, but the Union retains the right to impact bargaining.

This modification is recommended.

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Regarding the Union’s proposal for bilingual compensation, the Employer

mentioned at hearing that it would be open to a modified provision which included a

permanent bump in pay for such designated employees as selected by the Agency. The

recommendation includes this provision.

Article XI, Wages A. Level Placement. The pay level for all bargaining unit classifications will be as indicated below. Level 2 No current classifications Level 3 Administrative Aide Assistant Teacher Food Service Driver Level 4 Energy and Emergency Services Advocate I Family Service Worker Cook Early Childhood Services Worker Level 5 Custodian Early Head Start Teacher Head Teacher (non qualifying degree) Home Visitor Weatherization Technician Warehouse Person Energy and Emergency Services Advocate II Level 6

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Early Head Start Teacher with qualifying degree (Associate Degree in Early Childhood Education or related field with experience caring for infants or toddlers.) Head Teacher with Qualifying Degree (Associate Degree in Early Childhood Education or related field with experience teaching pre-school age children.) Level 7 Early Head Start Teacher with qualifying degree (Bachelor’s or Masters in Early Childhood Education or equivalent with experience caring for infants or toddlers.) Head Teacher with qualifying degree (Bachelor’s or Masters in Early Childhood Education or equivalent with experience teaching pre-school age children.) All positions are required to meet credentialing requirements set forth in the Head Start Act and/or Head Start/Early Head Start performance standards. Qualifying degrees for purposes of this Agreement shall accord with the credentialing requirements set forth in the Head Start Act. B. Educational Step Placement. For all new hires and bargaining unit employees who achieve degrees during the course of employment, placement on a step within a salary level will be determined by the employee’s level of education as provided below.

• Assistant Teacher with CDA, step 3; with an Associate Degree, Step 7; with a Bachelor’s Degree, Step 9.

• All other positions Level 3, with an Associate Degree, Step 7. • All positions Level 4 with an Associate Degree, Step 3; with a Bachelor’s Degree,

Step 7. • All positions Level 5 with an Associate Degree, Step 3; with a Bachelor’s Degree,

Step 7. • Head Teacher Level 5 with a non-qualifying Associate Degree, Step 3; with a

non-qualifying Bachelor’s Degree, Step 7 • All positions in Level 6 with a qualifying Associate Degree, Step 3; with a

qualifying Bachelor’s Degree, Step 5. • All positions Level 7 with a Bachelor’s Degree in Early Childhood Education or a

Bachelor’s Degree in a related field and coursework equivalent to a major relating to Early Childhood Education, with experience teaching pre-school age children, Step 3; with a Masters Degree in Early Childhood Education, Step 5.

• See also Section G of this article for employees who attain additional education during the course of their employment with the Agency.

• The Director of Human Resources or designee shall have the sole discretion to determine whether an Associate Degree, Bachelor’s Degree and/or Masters Degree is job related.

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C. Effective August 1, 2015 and during the life of this Agreement, employees paid from LCCAA grants shall receive a wage increase, if any, equal to the cost of living adjustment (COLA) as provided for in the grants. In addition, employees paid from the Federal Head Start grant shall receive any temporary wage increase provided for in the Federal Head Start grant, provided however, temporary wage increases shall only be awarded for the duration provided in the grant and shall not be added to the wage schedule. In the event that monies or funding beyond what are provided for in the existing federal grant becomes available to the LCCAA during the life of the Agreement, or any stimulus money is received, or if the grant amount is increased, LCCAA shall notify the Union and the parties shall meet to negotiate only over those funds which are not earmarked or which are specifically available for wages or bonus payments. Additionally, the parties agree to meet in October of each year to discuss unspent or unencumbered grant funds, if any, to discuss if such funds may be utilized to provide a financial benefit for bargaining unit employees. Step Up to Quality. In the event the Agency receives Step Up to Quality money during the life of the Agreement, the parties agree that any such monies, which would qualify for merit payments to bargaining unit employees, shall be the subject of negotiations for insuring that bargaining unit members in the affected worksites, which are awarded the funds, are recognized. D. Current contract language. E. Current contract language. F. Current contract language. G. Payment upon Promotion. In the event an employee achieves a higher level of education that falls within the criteria identified in Section B of this article, the employee will be immediately advanced to the step of the salary level that is applicable to the employee’s education and classification. It is understood that this provision only applies to employees who achieve education levels which the parties have agreed in Section B warrant the employee’s placement on a new step. If an employee obtains additional education as outlined in Section B of this article, is already at the step (or higher step) than the step indicated for the employee’s education, the employee will be advanced two (2) steps. For example, if the employee in Level 5 obtains a Bachelor’s Degree, but is already at Step 8, she/he will be advanced to Step 10. If the employee is red-lined, or at Step 12, the employee’s rate of pay will be increased by three percent (3%).

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In the event that a Head Teacher with an Associate Degree obtains a qualifying degree, he or she shall be advanced to Level 7 and the appropriate step in accordance with Section B of this article. The step increase shall result in at least a five percent (5%) pay increase. In the event that the employee falls between steps as a result of said increase, the employee shall be advanced to the next higher step. H. Current contract language. I. Current contract language. J. Changes in Job Responsibilities for a Classification. In the event the Agency elects to materially increase the job responsibilities of a position classification or otherwise effect material change in a position classification, the Agency shall first notify the Union. The parties will then meet to negotiate the impact of the Agency’s request as it relates to the salary level placement for the classification, workload of employees, and any other relevant working condition issue. In the event the Union believes the Agency failed to meet its bargaining obligations under this paragraph, within five (5) work days of the Union acquiring such belief, it shall serve the Agency with a demand to bargain that includes an itemization of the tasks it believes supports a material increase of job responsibilities. K. Current contract language. L. Current contract language. M. Recognizing that employees may be required to utilize a language other than English to perform job duties and serve the public, the Employer may designate an employee(s) as a qualified bilingual assistant. Such designation is in addition to the employees’ regular classification and job responsibilities. A bilingual assistant must be qualified and fluent in the specific language. Such employee’s hourly wage will be increased by two percent (2%). The wage increase will continue until the appropriate clients are no longer served by the Agency.

CONCLUSION

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The Fact Finder has reviewed the pre-hearings statements of the parties, all facts

presented at hearing and all exhibits submitted at hearing. In addition, the Fact Finder

has given consideration to the positions and arguments presented by each party regarding

the issues at impasse and to the criteria enumerated in Ohio Revised Code Section

4117.14 (G) (7) (a-f) as stipulated by the parties.

In addition to the specific recommendations contained in this Report and

Recommendation, all tentative agreements, which were reached by the parties prior to

fact finding, are hereby incorporated in this Report. Any issues or sub-issues not

addressed during negotiations are intended to remain current contract language for

purposes of this Report and Recommendation.

Respectfully submitted and issued at Cleveland, Ohio on this 7th Day of August 2015.

______________________________ Thomas J. Nowel Fact Finder

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CERTIFICATE OF SERVICE

I hereby certify that, on this 7th Day of August 2015, a copy of the foregoing

Report and Recommendation of the Fact Finder was served by way of electronic mail

upon Walter S. Stumphauzer, Esq. and Susan Keating Anderson, Esq., representing the

Lorain County Community Action Agency and Josh Norris representing the Service

Employees International Union District 1199.

______________________________ Thomas J. Nowel Fact Finder

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