In the Matter of the Impasse Between SOMERS, TOWN OF and LOCAL 456 INTERNATIONAL BROTHERHOOD OF TEAMSTERS (SOMERS HIGHWAY DEPARTMENT) CASE NO. M2002-278.
BEFORE: Martin Ellenberg, Esq., Fact-Finde

Ellenberg, Martin, , Esq.

English

In the Matter of the Impasse Between SOMERS, TOWN OF and LOCAL 456 INTERNATIONAL BROTHERHOOD OF TEAMSTERS (SOMERS HIGHWAY DEPARTMENT) CASE NO. M2002-278. BEFORE: Martin Ellenberg, Esq., Fact-Finderm2002_278.pdf: 593 downloads, before Oct. 1, 2020

Ellenberg, Martin

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Somers, Town of and Local 456, International Brotherhood of Teamsters (Somers Highway)

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Fact Finding Reports - NYS PERB New York State Public Employment Relations Board (PERB) 
May 2007 
Somers, Town of and Local 456, International Brotherhood of 
Teamsters (Somers Highway) 
Martin Ellenberg , Esq. 
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Somers, Town of and Local 456, International Brotherhood of Teamsters (Somers 
Highway) 
Abstract 
In the Matter of the Impasse Between SOMERS, TOWN OF and LOCAL 456 INTERNATIONAL 
BROTHERHOOD OF TEAMSTERS (SOMERS HIGHWAY DEPARTMENT) CASE NO. M2002-278. 
BEFORE: Martin Ellenberg, Esq., Fact-Finder 
Keywords 
Ellenberg, M2002-278, impasse, 
This article is available at DigitalCommons@ILR: https://digitalcommons.ilr.cornell.edu/perbfact/1 
STATE OF NEW YORK 
PUBLIC EMPLOYMENT RELATIONS BOARD 
________________________________________________ 
                                                                                                ) 
In the Matter of the Impasse                ) 
                   ) 
 Between                 )      FACT-FINDING 
                   ) 
SOMERS, TOWN OF                )      REPORT 
                   ) 
 and                  )      AND 
                   ) 
LOCAL 456             )      RECOMMENDATIONS 
INTERNATIONAL BROTHERHOOD OF TEAMSTERS  ) 
(SOMERS HIGHWAY DEPARTMENT)              ) 
                   ) 
CASE NO. M2002-278                ) 
________________________________________________) 
 
BEFORE:  Martin Ellenberg, Esq. 
   Fact-Finder 
 
APPEARANCES: 
 
For the Employer: Bond, Schoeneck & King, PLLC 
   by Ernest R. Stolzer, Esq. 
 
        Also Present: Paul Meyer, Town Board Member 
   Thomas E. Chiaverini, Superintendent of Highways 
 
For the Union:             Barnes, Iaccarino, Virginia, Ambinder & Shepherd, LLC 
   by Wendell V. Shepherd, Esq. 
 
        Also Present: Louis A. Picani, Business Agent 
   Michael T. Walsh, Shop Steward 
   Craig Dufner, Negotiations Committee Member 
   Peter H. Mohan, Negotiations Committee Member 
  
 Having determined that an impasse existed in the negotiations between the Town 
of Somers (Employer) and Local 456 IBT (Union), by Notice of Appointment dated 
December 29, 2005, the New York State Public Employment Relations Board (PERB), 
appointed the undersigned Fact-Finder, under the authority vested in the Board by 
 2
Sections 209 and 205.5(k) of the New York Civil Service Law, for the purpose of 
inquiring into the causes and circumstances of the dispute and to issue findings of fact 
and recommendations for resolution of the dispute. 
 
BACKGROUND: 
 The predecessor Agreement between the Parties, which was their first collective 
bargaining agreement, expired on December 31, 2002. Negotiations for a successor 
Agreement did not commence until December 3, 2002.  As stated in the Declaration of 
Impasse, “The delay for the start of negotiations was caused by the Union and the Town 
waiting for final classification of bargaining unit members Civil Service titles from the 
Westchester County Personnel Office.”  By agreement of the Parties at their negotiations 
session on February 11, 2003, a Declaration of Impasse, dated February 13, 2003, was 
submitted to PERB by the Union. 
 Despite the assistance of a Mediator, appointed by PERB, the Parties did not 
reach agreement on terms of a new Agreement.  The Fact-Finder was initially appointed 
by PERB on September 9, 2003.  Following a series of unsuccessful efforts to have the 
Parties agree on dates for fact-finding, PERB issued a second Notice of Appointment to 
the Fact-Finder, dated December 29, 2005, with different Union representation and a 
different law firm now representing the Union. 
 As determined during Fact-Finding Hearings conducted on January 31st and 
August 30, 2006 and through the submission of exhibits, the positions of the Parties are  
summarized below. 
 3
 The Union’s “Demands”, which were submitted to the Fact-Finder on January 31, 
2006, include increases in the Wage Schedule, in Longevity Pay and of the payment for 
Premium Time, Paid Leave and Pensions.  Demands regarding uniform allowance and for 
check-off of Union dues are also included.. 
 The Town’s “Proposals” seek to revise the overtime scheduling provision, to 
provide for paid meal allowances during overtime, to reduce the vacation schedule for 
new employees; to revise use of sick leave for visits to doctors or pharmacy; to require 
employees absent due to a Workers Compensation compensable injury to remain at home 
during regular hours of work except for medical reasons; to require employees and 
retirees to pay 50% of future increases in premium for health insurance and to require 
that grievances shall be detailed in writing when submitted at Step A. 
 The discussion between the Parties, as well as the presentations to the Fact-
Finder, leave no doubt that, the long delay and the failure to reach agreement resulted 
from the Partie’ primary focus and inability to agree on a new wage schedule. 
 Although the predecessor Agreement codified the conditions of employment 
typically found in a collective bargaining agreement, a major source of discontent, within 
the bargaining unit, was the perception that the wages of individual employees were not 
consistent with their assigned job duties.  Dated September 26, 2002, a classification 
study performed by the Westchester County Department of Human Resources (WCDHR) 
found that, with the exception of the Assistant Road Maintenance Foreman, the 
remaining fifteen employees of the Somers Highway Department were all classified as 
Motor Equipment Operators (MEO).  Based on its study of the work performed by 
 4
individual employees, it recommended that five additional titles should be established 
and that only seven of the employees should retain the MEO title. 
 Based on the various rates at which employees were paid in 2002, the last year of 
the predecessor Agreement, and recognizing the need to establish rates consistent with 
job classifications mandated by WCDHR, the wage schedules, below, are recommended 
in order to establish fair and equitable wage relationships for bargaining unit classifica- 
tions, while affording due consideration to the positions of the Union and the Town. 
 
RECOMMENDED TERM OF AGREEMENT: 
 Although the Town seeks to have an Agreement that extends through 2009, I find 
it inappropriate for a Fact-Finder, in this matter, to issue recommendations spanning a 
seven-year period.  I recommend that this Agreement shall be for a term of five years, 
effective January 1, 2003 through December 31, 2007.   
This expiration date should also allow sufficient time for the Parties to prepare to 
negotiate, without the presence of a mediator or fact-finder, for what will be their third 
Agreement.   
 
RECOMMENDED SALARY SCHEDULE: 
Assistant Road Maintenance Foreman (A. Vinberg) 
 
 Current  58,511 
 
 Effective  1/1/03 59,975 
       1/1/04 61,475 
       1/1/05 63,325 
           1/1/06 65,225 
       1/1/07 67,500 
 
 5
Senior Automotive Mechanic (L. Knapp) 
  
 Current  53,876 
 
 Effective    1/1/03 55,500 
         1/1/04 57,200 
         1/1/05 59,000 
         1/1/06 61,000 
         1/1/07 64,500 
 
Heavy Motor Equipment Operator 
 
 R. Kramer Current  51,559 
 
   Effective 1/1/03 52,950 
                    1/1/04 54,500 
        1/1/05 57,000 
        1/1/06 60,000 
        1/1/07 63,000 
 
 A. Guyot Current  42,869 
 
   Effective  1/1/03 44,500 
         1/1/04 46,500 
         1/1/05 50,000 
         1/1/06 55,000 
         1/1/07 63,000 
 
Motor Equipment Operator   
 
 M. Mohan, M. Peters, G. Zinzer: Current  53,877 
 
 J. Kegler, F. Leito:   Current  52,718 
 
   Effective    1/1/03    54,300 
           1/1/04    55,800 
           1/1/05    57,400 
           1/1/06    59,100 
           1/1/07    61,000 
 
 
 
 
 
 
 
 6
Motor Equipment Operator/Welder (G. Luddermann) 
 
   Current         38,993 
 
   Effective    1/1/03 40,500 
           1/1/04 42,800 
           1/1/05 46,800 
           1/1/06 51,800 
           1/1/07 57,000 
 
Automotive Mechanic Helper 
 
 F. Barachi Current  41,131 
 
   Effective    1/1/03 42,350 
           1/1/04 43,700 
           1/1/05 45,200 
           1/1/06 46,800 
           1/1/07 48,500 
 
 M. Walsh Current  38,993 
 
   Effective    1/1/03 40,350 
           1/1/04 41,800 
           1/1/05 43,500 
           1/1/06 45,500 
           1/1/07 48,500 
 
Skilled Road Maintainer 
 
 C. Rahe Current  42,870 
 
   Effective    1/1/03 43,900 
           1/1/04 45,000 
           1/1/05 46,100 
           1/1/06 47,250 
           1/1/07 48,500 
 
 C. Dufner, P. Mohan, P. Westhoff 
   Current  38,993 
 
   Effective    1/1/03 40,350 
           1/1/04 41,800 
           1/1/05 43,500 
           1/1/06 45,500 
           1/1/07 48,500 
 7
 
Laborer/Road Maintainer (C. Furu – Employed 1/20/05) 
 
   Current  36,740 
 
   Effective    1/1/06 41,000 
           1/1/07 45,000 
 
HIRING RATE: 
The Town seeks to establish steps to attain the “job rate” commencing with Year 
1 payable at 85% of the rate, with the full rate not payable until Year 6.  I am not aware 
of a Union response to this proposal. 
 The predecessor Agreement provides that the hiring rate shall be ninety percent 
(90%) of the classification rate, until the completion of the twenty six (26) weeks of 
employment with the Town.  The Agreement does not contain a list of job classifications 
or a rate schedule by classification. 
 It is RECOMMENDED that Article IV, Section of the Agreement be revised to 
provide that at the end of twenty-six (26) weeks of employment, the rate of pay for a new 
employee be increased to ninety-five percent (95%) of the classification rate then in 
effect, increased to the full rate on the completion of a full year of employment.  This 
recommendation will require the new employee to have acquired work experience, with 
the Town, during the four seasons of the year. 
 
OVERTIME MEAL/REST PERIOD: 
 The Union seeks a paid meal/rest period of one-half (1/2) hour after twelve (12) 
hours of work, a one (1) hour paid meal/rest period for each additional four (4) hours of 
 8
work and a four (4) hour paid meal/rest period after twenty-four (24) hours of work..  It 
seeks, also, meal purchase allowances, varying between $10 and $15. 
 The Town proposes a paid half (1/2) hour meal period after twelve (12) hours, but 
provides for a meal purchase allowance of $6 with further paid meal period after six (6) 
additional hours of work. 
 RECOMMENDATION:  Paid half-hour meal/rest period after twelve hours of 
work with an additional paid half-hour meal/rest period after each successive four hours 
of work.  Further, I find a meal purchase allowance of $10 to be more realistic. 
 The Union’s request for a four (4) hours paid meal/rest period after twenty-four 
(24) hours of work is not recommended, herein.  I believe that conditions that might be 
appropriate under such extended work requirements were not discussed sufficiently for 
the Fact-Finder to make a recommendation.  That is true, also, regarding the Union’s 
demand that “Hours worked between midnight and seven a.m. can be used immediately 
as compensatory overtime.” 
  
MISCELLANEOUS: 
The Union’s demand for increases of LONGEVITY payments are not recom- 
mended at this time in view of the extensive revision of the job classification rate 
schedule. 
 Various revisions of Article VIII, VACATIONS; Article IX, PAID LEAVE and 
Article XV, WELFARE BENEFITS requested by both the Union and the Town were not 
supported by argument demonstrating that changes are appropriate at this time. 
  
 9
 The Union requests that Article II, Recognition, Section 2 (authorizing DUES 
DEDUCTION and the amount) be revised by deleting from the first sentence “so 
designated on the authorization cards” and substituting “designated by the Union.”  I find 
this to be a matter internal to the Union to which the Town was unresponsive.  The 
requested change is recommended. 
 The Town requests revision of Article IX, WORKERS’ COMPENSATION, 
adding a new Section which would restrict employees absent due to compensable injury 
to their homes.  No pressing need was demonstrated for the change.  If a finding has been 
made than an employee is medically disabled, I find that such restriction would be need-
lessly punitive.  If the employee’s public conduct raises questions about his/her disability, 
other remedies are available to the Town.    
 The Union seeks to expand Article XIV, UNIFORMS AND EQUIPMENT.  It 
seeks to have the Town provide, annually, seven (7) safety orange T-shirts and a $100 
work shoe allowance to each employee.  The issuance of the T-shirts should promote safe 
working conditions and should not be disproportionately costly.  The request for T-shirts 
is recommended with the proviso that the shirts may be worn only when at work and if 
worn at other times, the Town may deduct the cost of a new T-shirt from the employee’s 
pay.  
 The Town requests that Article XV, Welfare Benefits, Section 1 be revised to 
provide for employee contribution to payment of premiums.  Consistent with my 
recommendations to deny the Union’s request for significant increases in benefits, I 
recommend, also, denial of the Town’s request to decrease this benefit. 
  
 10
Also under Article XV, the Town requests that if any employee and his/her 
spouse both work for the Town, that Section 2 shall be revised so that both employees do 
not receive coverage as “employee” rather than having one designated as “spouse.”  I 
find this request to be appropriate but I refer the matter back to the Parties to resolve how 
to effect this change so that the benefits to the employee and spouse will not be 
diminished.  Further, if effected, this change should result in a saving to the Town and I 
would recommend that such saving be shared, in some way, with the employee. 
 The Town also requests that Article XVIII, GRIEVANCE PROCEDURES AND 
ARBITRATION, be revised to require that grievances be presented in writing at Step A 
and that it state the “specific provision….alleged to have been violated,” the name of 
employees affected, the damages suffered by each grievant and that each grievance shall 
be numbered. 
 I find merit in the objectives of this proposal, primarily because it requires the 
Parties to clarify the issue and to more readily resolve the dispute.  I RECOMMEND that 
grievances should be in writing at Step A, dated and numbered, sequentially, that the 
names of all affected employees be shown and that the remedy sought should also be 
stated.  I would not find a grievance to be invalidated because if failed to correctly state 
the specific provision that was violated. 
 Finally, it is recommended that the Stipulation by and between the Parties, 
submitted herein as Joint Exhibit – 2, signed for the Union on October 14, 2001 and for 
the Town on February 8, 2002, be added to the new Agreement. 
 11
 Other than the recommendations for revisions contained in this Fact-Finding 
Report, it is recommended that all other provisions of the predecessor Agreement shall 
continue unchanged for the term of this Agreement. 
 
 
       ____________________________ 
       MARTIN ELLENBERG, ESQ. 
       FACT-FINDER 
 
May 18, 2007    
          
  


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Somers, Town of and Local 456, International Brotherhood of Teamsters (Somers Highway)

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