OFFICEOFCOLLECTIVEBARGAINING IntheMatter oftheImpasse SUPPLEMENTAL -between-REPORTAND RECOMMENDATIONS DISTRICTCOUNCIL37, AFSCME, AFL-CIO, olbloLOCAL768, -and-CaseNo. 1-255-08 (Creative Arts Therapist) THECITYofNEWYORKandtheNEWYORKCITY HEALTHANDHOSPITALSCORPORATION, Before: GayleA. Gavin, Chair, ImpassePanel MaryL. Crangle, Member RichardC. Gwin, Member Appearances: FortheUnion: JesseGribben, Esq., Assistant General Counsel FortheCity: VictorLevy, Esq., DeputyGeneral Counsel SimonV. Kapochunas, Esq., AssistantGeneral Counsel JeffJ. Smodish, Esq., Assistant General Counsel The above Impasse Panel was designated pursuant to the NewYork City CollectiveBargainingLaw("NYCCBL"), andOffice ofCollectiveBargaining("OCB") Rules, to hear and make a report and recommendations ina dispute betweenDistrict Council 37, AFSCME, AFL-CIO, olbloLocal 768("Union"or"DC37") andtheCityof NewYork and the NewYork City Health and Hospitals Corporation ("HHC"). Thereafter, in late March, 2011, the Impasse Panel issued its Report ("Report") recommending that "Employees holding the Creative Arts Therapist position shall 1
receivetheannual IS-year City-service LongevityIncrement Section 10 of the collective bargaining agreement Paymentsshall beretroactiveto2007, asapplicable". On April 22, 2011, District 37 Recommendation. ByDecisiondatedJune1,2011, Board of Collective Bargaining ("Board") appeal. See DC37, 4OCB29(BeB2011). Report tothePanel "for afurtherexplanation agreed-uponIS-yearServiceLongevityIncrement) theremainder oftheReport. ThefollowingconstitutesthePanel'sSupplemental in Case No. 1-255-08and shall be part ofthe transmittedMarch24, 2011. AsdiscussedmorefullyinourReport thismatter, thisdisputewassubmittedtotheImpassePanel reach agreement on which, if any, longevity payments, referredtobythepartiesasadditions-to-gross("ATGs") employeesholdingthetitle ofCreativeArtsTherapist. was established by HHCin June, 2006, bargainingunit representedbyDistrict 37inDecember, Counselor andActivityTherapist were alreadyincludedinthat time. Thecollective bargainingagreement ("Agreement") Section10,providedforalongevityincrementof$800perannumforemployeeswith15 years or more of"City" service in pay status 2as providedinArticleIII, between District 37 and HHC. appealed this Impasse Report and theOffice ofCollectiveBargaining, issued a written decision on the Union's Inthis decision, theBoardremandedthe ofitsconclusionthat ATGs(otherthanthe wouldnot beawarded", andaffirmed Report original Report and Recommendation andRecommendationspreviouslyissuedin becausethepartiescouldnot differentials and/or recurring increment shouldbeextendedto TheCreativeArts Therapist title and the title was accreted to the existing 2006. Thetitles ofRehabilitation bargainingunit at that thenineffect, inArticle III, (except those eligible for a longevity
differential pursuant to Section 12). Section different longevity schedules for various "Therapists and Related Titles" which includes Rehabilitation Counselor, and a different PuppetryTitles"whichincludesActivityTherapist. a recurnng increment payment ("RIP") Agreement. WenowaddresstheBoard'sremanddirectingthisPanel rationaleandbasis for our conclusionthat ATGs(other ServiceLongevityIncrement)wouldnot beawarded. At the outset, thePanel wishes tonote party's respective position as towhether the newlyaccretedtitles, we proceeded to evaluate recognitionthat eachcaseisfact specific. It accept orreject thepositions oftheparties and, whileapplyingthestatutorycriteria. Inmakingitsdetermination, detailed analysis ofthe record, applying the Section 12-311(c) (3)(b) of the NewYork arrivingatitsfindingsandconclusionsinthismatter. Section12-311(c)(3)(b)states, inpertinent anImpassepanel: ... shall consider wherever relevant recommendationsforterms ofsettlement: 312ofArticle III includes a number of titles, including a longevity schedule for Rehabilitation Counselor and Senior longevity schedule for "Recreation and Section18 ofArticleIIIprovidesfor for full-time employees covered by the tomorefullyexplainthe thantheagreed -upon15-year that while it carefully consideredeach Unionmust fund additions togross for this case onits merits, with a clear isfor thePanel toexerciseitsauthorityto independently, toassessrecordevidence thePanel undertooka relevant statutory criteria as set forth in City Collective Bargaining Lawbefore part: the following standards III making its
(1) comparisonofthewages, hours, ofemployment ofthepublicemployeesinvolvedintheImpasseproceedingwith thewages, hours, fringebenefits, conditionsandcharacteristics other employeesperformingsimilar workandother orprivateemployment in NewYorkCityorcomparablecommunities; (2) the overall compensationpaid proceeding, including direct wage vacations, holidays and other excusedtime, hospitalization benefits, food and received: (3) changes inthe average consumer knownasthecost ofliving; (4) theinterest andwelfare ofthepublic; (5) such other factors as are normally determination ofwages, hours, fringe collectivebargainingorinImpassepanel Ontherecordinitsentirety, andafterapplyingtherelevant Panel concludedthat wewouldnot recommendthat awarded. First of all, we carefully considered automaticallyentitledtoreceivetheATGsat andthe longevitydifferential attributabletoRehabilitationCounselors, Wefoundthat the CATtitlewas not asuccessor thosebenefits under theAgreement. Furthermore, automaticallyentitledtorecurringincrement theparties' Agreement, becauseit wasanewlyaccretedtitle. andconclusionsinthisregardwereupheldbytheBoard. 4fringebenefits, conditionsandcharacteristics ofemployment of employeesgenerallyinpublic tothe employees involvedinthe Impasse compensation, overtime and premiumpay, insurance, pensions, medical and apparel furnished, and all other benefits prices ofgoods andservices, commonly and customarily considered in the benefits, andother workingconditions in proceedings. statutorycriteria, this theATGs sought bytheUnionbe the Union's position that CATs were issue, i.e. therecurringincrement payment, but rejected it. totheunit titles whowerereceiving wefoundthat theCATtitlewas not payments, notwithstandingthelanguage of Wenotethat our findings
Havingfoundaninsufficient basistoautomaticallyextendthesought i.e., thecontractual longevitydifferential andrecurringincrement title, thisPanel thenconsideredtheUnion'spositioninlight theNewYorkCityCollectiveBargainingLaw.. andoverall compensation oftheCATStoother and distinctive characteristics of employment. weighing the equities, we could find no basis sought. ThePanel concludedthat there was nobasis applicable totheRehabilitationCounselor title substantial number of CATs had never held Agreement recognizes that not all unit employees based on a particular title since there is specific grantingthe 15year Cityservice longevity eligible for longevity pursuant tothe schedules comparingthesalaries oftheCATs tothoseoftheRehabilitationCounselorsaswell theActivityTherapists, thefact that theminimum-maximumsalaryschedule toCATSismuchhigher thanthesalaryschedule Counselortitleseriesorthat oftheActivityTherapist thePanel. Therefore, afterconsideringall thesefactors, salary structure when combined with the constitutedreasonable, comparable, compensationforemployees theduties andresponsibilities ofthepositionincomparisontothose 5afterATGs, payment, totheCAT ofthecriteriamandatedby ThePanel comparedthewages, benefits, unit titles, andconsideredtheir common Based on the evidence before us, and to award the additional compensation toawardthe longevitydifferential series, as sought bythe Union, whena that title. Furthermore, the parties' will receive a longevitydifferential language in Article II, Section 10, onlytothose unit employees whoare not set forthinArticle III, Section 12. In as applicable applicabletoeither theRehabilitation titleseriesresonatedstronglywith thePanel concludedthat theCAT 15 year City service longevity payment inthat title, recognizing ofother similarly
situated unit titles. After consideringboth benefits, thePanel concludedthat toawardCATStheRehabilitationCounselorlongevity and/or therecurringincrement payment benefit CATsalaryschedulewouldbeunwarrantedat inthebest interest andwelfareofthepublic. not receivethesamerecurringincrementpaymentsasother their overall compensationcontinuestocomparefavorablywithother employees. Basedontheseconsiderations, the ATGS sought by the Union (other longevityincrement). Mary L. Dated: We, theundersigned, doherebyeachaffirmthat thisReport andRecommendations. the equities and the cost offunding such oftheAgreement inlight ofthehigher thistime. Moreover, todosowouldnot be WhilethePanel ismindful that CATSdo unit employees, wefindthat similarlysituated thePanel reacheditsconclusionnot toaward than the agreed-upon IS-year City service Crangle, Member wearetheindividual whoexecuted 6
Dated: 7
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