11/7/23 Summation Brief Re: Impasse Proceedings

Posted on November 8, 2023 in Bargaining by Adam Earley

STATE OF MICHIGAN

MICHIGAN CIVIL SERVICE COMMISSION

EMPLOYMENT RELATIONS BOARD

(In the capacity of the Impasse Panel)

OFFICE OF THE STATE EMPLOYER,

Employer Representative,

&

MICHIGAN CORRECTIONS ORGANIZATION

SEIU 526M,

Union.

_________________________________________________/

Office of the State Employer

Liza Estlund-Olson, Director

400 S Pine St # 4.

Lansing, MI. 48933

Michigan Corrections Organization

MCO LEGAL

By: J. Martin Foldie, Esq.

Shawn P. Davis, Labor Relations Representative

421 W. Kalamazoo Street

Lansing, MI. 48933

jeff@mco-seiu.org

_______________________________________________/

SUMMATION BRIEF

OF

THE MICHIGAN CORRECTIONS ORGANIZATION

I.

TABLE OF CONTENTS

Cover Page …………………………………………………………………….. 1

Table of Contents ……………………………………………………………..2

Index of Authorities …………………………………………………………..2

Statement of Questions Involved …………………………………………..3

Statement of Facts …………………………………………………………….3 – 6

Argument (s) ……………………………………………………………………6 – 9

Relief Requested ……………………………………………………………….10

Signature …………………………………………………………………………11

II.

INDEX OF AUTHORITIES

None cited.

III.

STATEMENT OF QUESTIONS INVOLVED

A.

Whether the employer’s proposal of a 5% wage increase and the offer to form a joint committee to investigate the recruitment and retention problem, which has been on-going within the Michigan Department of Corrections for the past decade, is sufficient to remedy the staffing crisis.

Union Responds: “NO.”

Employer responds: “YES.”

B.

Whether the union’s proposal of 1) raising entry wage to $25.00 per hour, 2) collapsing the pay scale from 66 months to 36 months, and 3) a base wage increase of 14% will sufficiently attract recruits, as well as maintain the dwindling work force.

Union Responds: “YES”

Employer Responds: “NO”

IV.

STATEMENT OF FACTS

The Office of the State Employer and the Michigan Corrections Organization were unable to reach a voluntary agreement for FY2025. The parties timely filed and sought impasse assistance.

An Impasse Hearing was held on October 31, 2023. Following the hearing, briefs were ordered, and the parties were requested to provide additional information and clarity.

OSE argued its impasse position (base wage increases of 5% and a Letter of Understanding to form a joint committee on recruitment and retention) was fair and reasonable.

It further argued that MCO had received, in past bargaining cycles, things that other bargaining units had not.

It further acknowledged that there was a hiring and retention problem, and that raising entry rates and redesigning the pay scale had implications. One problematic factor was the wage scale compression between line staff and supervisors. OSE had concern that the MCO proposal would bring officer-hourly-pay to within $2.00 of supervisors.

Nonetheless, in answering a question by the panel, OSE’s witness Deputy Director Bush had to acknowledge that the top three reasons in exit polling were: 1) pensions, 2) pay, and 3) culture.

Bush further testified that the Department was operating 27 prison facilities, and the following was a breakdown of the C/O vacancy rates:

  • 10 facilities with less than 10%;
  • 7 facilities with a 10% to 19% vacancy rate; and
  • 10 facilities with 20% or greater vacancy rate.

In addition, Deputy Director Lia Gulick testified to much of the information provided in her affidavit.

OSE and their witnesses pointed to the following as ambitious attempts to curb resignation and improve recruiting.1 The steps have been placed into two categories: Cultural changes and Recruitment and Retention efforts (Broke down into two subcategories: Economic and Policy):

Cultural Changes

  • Establishment of the Wellness Program and cultural improvements to facilities;
  • Restructuring of the Annual Performance Test;
  • Investments in equipment (Stab proof vests and Body cameras);
  • Establishment of a Diversity and Equity Inclusion Officer;
  • Strategic Planning initiatives (Focus groups and Mentor program);
  • Establishment of a Discriminatory Harassment and Prison Rape Elimination Act unit;
  • 12-hour shifts;
  • Uniform change – Polo shirts;

Recruitment/Retention Efforts

Economic incentives

  • The 2022 MCO LOU which provided members with a $250 bonus each pay period if they met the 80 hours worked threshold (extended an extra 13 pay periods for a total of 26 pay periods);
  • Retention and Recruitment Bonus equaling $3,000.00 and Retention and Recruitment Bonus of FY24 equaling $3,000.00;
  • Holiday Pay Pilot Program;
  • Utilizing Regulation 5.01 to raise starting pay for new recruits (it is currently being contested in a ULP under the theory that it obviates the exclusive jurisdiction status of the Union);
  • Expansion of annual leave slots at certain facilities (via closing the housing units).

Policy initiatives

  • Increasing its FY19 recruitment budget from $100K to $1.3 million in FY23;
  • Establishment of facility recruitment teams;
  • Construction of the Green Oaks Training Lodge;
  • Restructuring of college credit requirement, military basic training meeting educational requirements, and tuition assistance for new recruits;
  • Establishment of Veteran Liaison;
  • Closing of housing units at facilities;
  • Voluntary Corrections Officer program;
  • Non-Career Correctional Officer Job Classification;
  • The closing of 21 housing units throughout the state; and
  • Initiation of facility intelligence units (FY24).

The MCO attempted to paint a picture of the Corrections Department suffering because of the staffing crisis. Its affidavits and witnesses show that the Department is suffering from a major morale problem due to the forced overtime. The witness affidavits show that there is a breakdown in communications between the supervisors and line staff because of the frustration and fatigue of the forced overtime.

Affidavits provided show that officers can no longer provide good institutional security in the manner that the job calls for. Fatigue and frustration have dulled the hyper-focus required of security staff, and that daily security needs are accomplished by going through the motions, rather than with professional zeal.

MCO counsel explained the three-prong proposal benefited the parties by making the job of a Corrections Officer more appealing to potential candidates ($25 entry wage & pay scale compression). In addition, the proposal rewards the current work force and adds incentive for them to stay while the ranks are filled (14% wage increase and collapsing of the pay scale).

This package, MCO argued, was required so that it put Correction Officers for the State of Michigan in a better position to compete with Federal and County correctional systems.

V.

ARGUMENT

Let’s assume, arguendo, that the twenty-three initiatives testified to by OSE and the MDOC were all for the purpose of recruitment and retention efforts. The initiation of these measures juxtaposed with the number of resignations from 2018 through 2023 only serve to highlight why pay must be raised and the pay scale collapsed.

a.

The Employer’s Proposal is Insufficient and Would Not Be Ratified If Proposed as a Voluntary Agreement.

While much emphasis, at the IP hearing, was placed on the fairness of the offer proposed by the OSE, as well as corrections officers having a generous compensation package already, it seems that the “market” should be the ultimate arbiter on the Employer’s efforts to recruit and retain.

Thousands of resignations in the past five years are evidence, in and of itself, that the current compensation plan for corrections officers is not sufficient.

Raising wages by 5% across the board and offering a seat at the table to work on “future plans” to eliminate the massive mandatory overtime suffered by corrections officers will not pass ratification.

To end this crisis, recruits must fill the ranks immediately, while maintaining the current workforce. Forced overtime, in 70% of the institutions, is splitting at the seams. The work force is beleaguered by working double shifts three to five days in a row.

Raising entry wages to a significant rate entices persons to contemplate taking on a not so attractive job. In addition, raising wages significantly attracts the law enforcement-oriented-person to the MDOC rather than a federal or county job.

Reworking the 66 months’ pay scale to 36 months is also a much more inviting benefit to the person deciding on a law enforcement career, as well as attracting more experienced prospects to the Department.

It is readily apparent that the initiatives by the OSE and Employer have not met the objective of recruitment and retention. For this reason, the Panel should recommend the implementation of the MCO three-pronged proposal.

b.

The Concept Proposed by the Impasse Panel Does Not Go Far Enough to Attract Persons into the Workforce, Nor Does It Deal with Creating a Meaningful Way to Convince Current Personnel Not to Leave the Ranks.

The facts cannot be disputed. The prison system is down 1,000 officers. The highest vacancy rates are causing massive mandatory overtime at 12 (44%) of the state’s prisons. These prisons have vacancy rates ranging from 19% to 30-plus-percent. Seven other facilities have vacancy rates that range from 10 to 18%, also causing mandatory overtime at significant rates. Nineteen of 27 facilities (70%) are short staffed to the point that working conditions are causing persons to leave the MDOC at an unprecedented rate.

Indeed, the Deputy Director testified at the IP hearing that the three main reasons persons are departing are pension, compensation, and culture. While the pension aspect is not a factor that the OSE and Department can address, the other two factors are. The Department testified to 23 initiatives aimed at cultural change, policy change, and some economic incentives. Yet, if we go back to its earliest initiative in FY2019 – advertising contract with King Media – and count forward, to FY23, correction officer resignations amounted to 1,600. That period was the highest period of Correction Officer exits dating back to 2012.

The Impasse Panel proffered a notion that would make the six-month pay step the entry wage (after having applied a 5% wage increase to it), for a starting wage of $22.16. Thereafter, each step would be raised by 5%.

This new format essentially raises the entry wage to $22.16 per hour and removes a single step from the pay scale to reduce the steps from 66 months to 60 (10 steps to 9 steps). This concept alleviates the OSE of its concern of having a pay compression issue between line staff and supervisors.

However, pay compression is not the problem which faces the corrections officers, front and center. Mandatory overtime and short staffing are the problems of today, and of the last five years. The employer seems to take this crisis with a grain of salt. However, there is no doubt the employer is in trouble with officers leaving the ranks. The numbers don’t lie. OSE can claim that it’s too complex of an issue to admit that this is a problem teetering on the brink of disaster, but we are there.

It is for this reason that MCO must reject the concept as proposed by the Impasse Panel. It would not have been enough three years ago, and it will not be enough now.

While this concept raises the entry wage by $1.68 (From 20.48 to 22.16), it is considerably lower than what the Federal Government, and many Counties Sheriffs are offering currently. For instance, the Federal Bureau of Prisons are now hiring with a pay range of $46, 495.00 to $70,679.00.

VII.

RELIEF SOUGHT

In reviewing the employer’s twenty-three initiatives towards recruitment and retention, without a significant change to pay and structure, I’m reminded of the words of Winston Churchill: “Americans will always do the right thing, only after they have tried everything else.”

Since 2012, and because of missteps in attempting to cut costs associated with training corrections officers, the ranks of corrections officers have been on a downward spiral. Indeed, when OSE was asked if it agreed with the following quote in the MCO brief, “…this crisis worsens on a monthly, if not daily, basis,” OSE refused to answer, complaining that the question was too complex to answer simply yes or no.

It is not a complex question if you are one of the Corrections Officers who are affected by this crisis. Forced mandatory overtime for the past three and four years, with no end in sight, makes this crisis worsen every day.

It was somewhat difficult waking up the morning after the impasse proceedings, still one thousand officers short, having heard all what the employer has done since 2019 to make the situation better, and nothing has helped. Nothing.

What is even more baffling was that there was not a single person in the room from the Impasse Panel or the OSE that seemed shocked by the conditions facing the corrections officers.

The conditions concerning staffing will get worse. The MCO is confident that if past actions are good indicators of future behavior, we will be at nearly 1,500 vacancies by summer of 2024.

Perhaps it will be the recommendation that the “can get kicked down the road,” so that a committee can be put together to decide what we need for corrections officers to join and stay with the Michigan Department of Corrections. The MCO has made its recommendation. It is based off those measures taken by other Employers and legislatures who are outwardly disgusted by the conditions in which their employees and constituents have been working under in their own state prisons.

On behalf of the Michigan Corrections Organization,

its Executive Board and Membership,

_______________________________________

J. Martin Foldie, Esq.

Counsel for the MCO

Date: November 7, 2023