DECISIONS

City of Bothel

And

IAAF Local No. 2099

Fact Findings

Arbitrator:      Charles S. LaCugna

Date Issued:   12/09/1978

 

 

Arbitrator:         LaCugna; Charles S.

Case #:              01729-F-78-00089

Employer:          City of Bothell

Union:                IAFF; Local 2099

Date Issued:     12/09/1978

 

 

In

 

Fact Finding Proceedings

 

between

 

IAAF LOCAL #2099

 

and

 

THE CITY OF BOTHEL

 

                REPORT WITH

 

RECOMMENDATIONS

 

December 9, 1978

 

 

 

In Fact Finding Proceedings

            between                                                                                  REPORT WITH

IAFF LOCAL #2099                                                                          RECOMMENDATIONS

            and

THE CITY OF BOTHELL

 

 

I           HISTORY OF COLLECTIVE BARGAINING

 

            On June 20, 1978, the parties began negotiations because

their existing three year Collective Bargaining Agreement would

expire on December 31, 1978.  Discussions on a wage and bene-

fit package during the seven negotiation sessions were very

limited.  The City blamed the Firefighters: the Firefighters

were intransigent and they proposed a "wish list" which con-

tamed numerous new financial and nonfinancial provisions.

The Firefighters blamed the City for the delay and impasse:

the Firefighters pointed to the fact that twenty-one (21) of

the items opened by the City had been settled while only eight

(8) of the Union's initial requests had been resolved.  Since

mediation on September 11, 1978, was not successful, the

parties mutually declared an impasse.  Since the parties are

subject to the Public Employees Collective Bargaining Act

(RCW Chapter 41.56) , each party in compliance with RCW 41.56.

440 nominated a member to a Fact Finding Panel.  The City nom-

inated James R. McMahon as its Panel member; the Firefighters

nominated Clarence L. Ashe as its Panel member; and PERC appoint-

ed Charles S. LaCugna Chairman of the Panel.  On October 30,

1978, and on October 31, 1978, fact finding hearings were

held in the Bothell City Hall.  The parties agreed to mail and

exchange post-hearing Briefs, postmarked no later than Novem-

ber 10, 1978.  The Chairman of the Fact Finding Panel reminded

Panel members that since the spirit and intent of fact finding

is to aid in the resolution of disputes, the Panel members

should feel free to seek other avenues for negotiation and com-

promise.

 

II         THE ISSUES

 

            The parties agreed to submit the following issues to fact

finding with recommendations:

 

                        1.         Increase in base salary,

                        2.         City Contribution to Medical and Dental

                                    Insurance Premiums,

                        3.         Addition to Pay Increment for Education,

                        4.         Longevity Pay,

                        5.         Command Duty Pay,

                        6.         Prevailing Rights Clause,

                        7.         Composition of Bargaining Unit,

                        8.         Minimum Manning,

                        9.         Authority of Volunteer Officers over Full-

                                    Time Rank and File Firemen.

 

            At the first scheduled meeting of the Panel on November

16, 1978, at Seattle University, the Firefighters offered to

withdraw their request for a Prevailing Rights Clause, a Mini-

mum Manning clause, and a Longevity clause.  The Firefighters

were also willing to leave the Bargaining Unit question to

PERC, to let the Volunteer question remain a matter of continu-

ing discussion, and to retain the Medical Provisions as they

were.

 

            The Firefighters also modified their monetary requests.

They would accept:

 

            a)         A wage increase of 8.59% to be distributed

                        across the board;

 

            b)         $100 for Command Duty when so assigned;

 

            c)         Either a longevity or an educational in-

                        centive provision, effective January 1980, and

 

            d)         A reopener clause only on wages or the May

                        to May CPI for 1980.

 

            The Firefighters' proposal met the Chairman's request

that the Firefighters seriously consider the City's objection

that "the Union has been totally unwilling to limit its new

proposals."  Hence, the financial provisions also remain unre-

solved" (City Brief, p. 3) .  The Firefighters' new proposal

led the Chairman to ask the City's Panel member to apprise the

City Manager of the Firefighters' last offer.  After consulta-

tion with the City Manager, the Chairman, to clarify the

issues, reduced the positions of the parties to writing as

follows:

 

            1.         The City offered 8.4% on wages;

                        The Firefighters wanted 8.59% on wages.

 

                        The City wanted to distribute the percentage in-

                        crease on wages;

                        The Firefighters wanted an across the board increase.

 

            2.         Command Duty: The City offered $75, when so assigned;

                        The Firefighters wanted $1OO, when so

                        assigned.

 

            3.         Education Incentive (the request for a Longevity clause

                        was withdrawn)

                        The City offered $50 per month for an AA degree;

                        The Firefighters wanted $25 per month for 45 credits

                        and/or $5O per month for an AA degree (90 credits).

 

            4.         For 1980, the second year of the Contract, the City

                        offered the CPI with a maximum of 8%;  the Firefighters

                        would accept a reopener or CPI May to May.

 

            On November 20, Mr. Ashe offered the City Manager another

modified proposal: (1) an 8.58% salary increase without an

across the board application";  the Union offered its own

distribution formula; (2) the Union lowered its request from

$1OO to $75 of Command Duty when so assigned but asked that in

the second year of the contract, the $75 be raised in accord-

ance with percentage salary increase; (3) the Union also

modified its previous education incentive request: from "$25

per month for 45 credits" to "$25 per month for a Certificate"

but retained its "$50 per month for an AA degree."

 

            The City Manager acknowledged that the Firefighters' new

proposal showed "effort and consideration"; perhaps it was  a

little too high but that otherwise it seemed to be a good

proposal" (Firefighters' Memorandum of November 21, 1978)

The City Council considered the proposal, and on November 21,

1978, the City Manager and the City Panel member advised the

Chairman that "the City's current proposal is a financial

package distribution of approximately 7% and this is consistent

with the maximum Federal Guidelines."  The City Council urged

the Panel to give "strong consideration" to this Presidential

Guideline.

 

III        FACT FINDER'S AUTHORITY

 

            The fact finder's authority to make recommendations stems

from the Public Employees Collective Bargaining Act, Section

41.45.440, which reads:

 

            In making its findings, the fact finding panel shall

            be mindful of the legislative purpose enumerated in

            RCW 41.56.430 and as additional standards of guidelines

            to aid it in developing its recommendations, it shall

            take into consideration those factors set forth in

            RCW 41.56.460.

 

IV        INTERPRETATION AND APPLICATION OF STATE LAW

 

            The purpose of the law is to settle disputes, and wanting

that, to arrive at those recommendations which flow logically

from the facts as presented.  The declaration of legislative

intent is found in RCW 41.56.430, which reads:

 

            The intent and purpose of this 1973 amendatory act

            is to recognize that there exists a public policy

            in the State of Washington against strikes by uni-

            formed personnel as a means of settling their labor

            disputes; that the uninterrupted and dedicated service

            of these classes of employees is vital to the welfare

            and public safety of the State of Washington; that to

            promote such dedicated and uninterrupted public

            service there should exist an effective and adequate

            alternative means of settling disputes.

 

            1 - Interpretation of ROW 41.56.430

 

            The intent of the State Legislature as expressed in the

Act is to authorize the fact finder to ascertain those facts

which serve as a basis for hastening the collective bargaining

process so that the parties might reach a mutually acceptable

agreement.  RCW 41.56.430 clearly intends to prevent the

disruption of the vital protective services so necessary to

urban living.  However, if the parties cannot agree on a con-

tract, the parties must proceed to fact finding with recom-

mendations.  My quasi-mediatory and adjudicatory effort

attempted  first to secure a settlement on the theory that

mutual agreement was prima facie evidence of equity and

"reasonableness."   Since the parties could not agree on all

issues, the remaining issues are now subject to the fact finder

whose recommendations must derive from the fact finder's in-

terpretation and application of the criteria set forth in the

law.

 

2 - Interpretation of RCW 41.56.460

 

            RCW 41.56.460 directs the Panel to be "mindful of the

legislative purpose enumerated in RCW  41.56.430 and as addit-

ional standards or guidelines to aid it in reaching a decision,

it shall take into consideration the following factors" , to wit:

 

            a)  The constitutional and statutory authority of the

                  employer.

            b)  Stipulations  of the parties.

            c)  Comparison of the wages, hours and conditions of

                 employment of the uniformed personnel of cities

                 and counties involved in the proceedings with the

                 wages, hours and conditions of employment of uni-

                 formed personnel of cities and counties respectively

                 of similar size on the west coast of the United States.

            d)   The average consumer prices for goods and services,

                  commonly known as the cost of living.

            e)   Changes in any of the foregoing circumstances during

                  the pendency of the proceedings.

            f)    Such other factors, not confined to the foregoing,

                  which are normally or traditionally taken into con-

                  sideration in the determination of wages, hours and

                  conditions of employment.

 

a)         Constitutional and Statutory Authority of the City

 

            The constitutional and statutory authority of the City to

tax is necessarily limited because the City of Bothell, as a

creature of the State, has only those taxing powers which are

expressly delegated to it by the State Legislature, viz.,

the sales tax and property tax.  In addition, the State Legis-

lature has limited the amount of revenue from property taxes

to a maximum increase of six percent per year.  Moreover, the

taxing power of the Fire Districts is limited; fire districts

can raise revenues only from property taxes.

 

            The City noted that the City's limited tax base imposed

severe" restraints on the City Council in the allocation of

General Funds revenues.  Hence, the Firefighters' request for

9.4% salary increase plus additional monetary benefits cal-

culated to be 5.16% for a total of 14.56% must be examined

within these limits because the City Council, by very office,

must make not only fiscal but also politically practical

judgments in the disbursement of available revenue.  The tax

dollars to be allocated to the wage and benefits package of

the Firefighter must also consider its impact upon the City's

budget, already 14.7% of the City's total budget (City Exh. #3).

Or as the City put it: "the large percentage spent on fire pro-

tection in Bothell leaves less tax dollars in Bothell for

other uses such as police, streets and parks" (City Brief,

p. 15)

 

b)         Stipulations of the Parties

 

            The parties submitted as Joint Exhibit #1 their Agreement

on all issues except those issues now in fact finding.

 

c)         Comparison of the wages, hours and conditions of em-

            ployment of the uniformed personnel of cities and

            counties involved in the proceedings with the wages,

            hours and conditions of employment of uniformed personnel

            of cities and counties respectively of similar size on

            the West Coast of the United States

 

            The City recognized the intellectual and statistical

dilemma inherent in the "comparability" guideline.  State law

mandates that Bothell be compared to cities of "similar size

but the City found it is most difficult, if not impossible, to

find a "comparable" city because Bothell provides unique ser-

vices and operates under special funding arrangements.

Bothell's population o 6700 serves not only its own people

but also a population of approximately 30,000; the City's

assessed valuation is $103,000,000, but its fire service serves

an assessed valuation of approximately $278,000,000; the City

provides two-thirds of the funding for fire department services;

and one-third of the funding is provided by the 24,000 people

based outside the City limits.

 

            In a determined effort to ascertain what jurisdictions

were "truly comparable," the City conducted an extensive, de-

tailed, and impressive survey which led the City to three con-

clusions: Bothell is comparable "in certain respects" to other

Western Washington cities of 5,000-12,000 population; in

"certain other respects" to other Western Washington Fire

Districts which serve populations of 20,000-40,000; and

Bothell cannot be compared to other Western Washington cities

with a population of 15,000-30,000.

 

A.        CRITERIA FOR "COMPARABLE CITIES"

 

            To arrive at the "most comparable cities," the City de-

veloped the following seven broad criteria for "reasonable com-

parisons to other cities of Bothell's uniqueness":

           

            a.         Population       4,000-12,000

            b.         Population Density/Per Square Mile            500-2,000 people

 

            c.         Number of firefighters per 1000 population =

                        0.5-1.5 per thousand

 

            d.         Ratio of firefighters per millions = 1 per 10-25

                        millions of dollars in assessed valuation

 

            e.         Assessed value per capita = $8000-$20,000

 

            f.          Number of firefighters in department = 5-20 firefighters

                        to provide adequate responsiveness

 

            g.         Fiscal (ability to pay) Factors

                                    l.    Population size = 4,000-1,200

                                    2.  Total tax revenue - $150-$200 per capita

                                    3.   Fire Budget Expenditure - $35 approximately

                                          annually per capita ratio

                                    4.    Western Washington Area

 

            The City measured thirty cities in Western Washington

against the above criteria and concluded that Shelton, Tumwater,

Centralia, Kelso, and Mt. Vernon were the "most comparable"

because only these five cities met the seven criteria (City

Brief, p. 12) .  All the other cities were eliminated as "com-

parable" because they failed to meet either one or more of the

criteria (City Exh. #1, p. 2).

 

B.        CRITERIA FOR "COMPARABLE" FIRE DISTRICTS

 

            a.         Population 20-40 thousand (Bothell and encompassing

                        districts covered are about 30 thousand population)

 

            b.         1978 Assessed Real Property = 225-325 millions of

                        dollars values (Bothell and three districts) =

                        278 million dollars

 

            c.         Tax Revenues of approximately $200,000-$300,000

                        (Bothell and three encompassing districts approxi-

                        mately $300,000)

 

            d.         Number full paid firefighters - 5 to 20 (same as for

                        cities above)

 

            e.         Western Washington

 

            The City measured thirty-eight fire districts against the

above criteria and concluded that the following fire districts

were  "comparable'," to wit:

 

            King County District #2

            King County District #10

            King County District #16

            King County District #25

            King County District #40

            Kitsap County District #7

            Pierce County District #9      (City Exh. #2, p.1)

 

            In marked contrast to the City's exhaustive statistical

analysis, the Firefighters offered no statistical evidence at

the hearings or in their Brief to support their contention that

in some degree the fire departments in the immediate Bothell

geographic area were comparable.  The Firefighters said that

the City recently and the negotiators since 1972 tacitly had

recognized this comparability. Bothell's unique character

made these departments somewhat "comparable" because these

departments had the same fire protection problems and the same

socioeconomic conditions (Firefighters' Brief) .   At the Nov-

ember 16, 1978, meeting of the Fact Finding Panel, the Fire-

fighters changed their position.  Their research showed that

they could accept all of the City's fire districts except Kit-

sap District #7 and Pierce District #9 because these latter

two districts were geographically remote.  The other five

fire districts (Special "Comparability" Exhibit) were con-

parable because the Firefighters agreed with the City that

"fire districts are less complicated" i.e. , they have only one

source of revenue, the real property tax (Memorandum of Nov-

ember 17, 1978) .  The Firefighters believed that the facts

deduced from these  comparable" fire districts would, or

could, easily justify at least a 9.4% salary increase.

 

            The fact finder must, and does reject all the statistical

evidence based on the City's selective criteria of "comparable"

cities and fire districts because both the compared cities and

fire districts are markedly different in their political,

economic, and environmental make up.  The fact finder must

also reject the Firefighters ' " comparable" fire districts for

the same reason, and additionally, because the Firefighters'

analysis of "comparability" did not include "cities of similar

sizes."  The conclusion is that Bothell's admittedly unique

services and funding arrangements make it impossible to apply

the elusive "comparability" guideline.  Therefore, all argu-

ments derived from statistical evidence that purports to show

that Bothell is "truly" comparable, or "mostly" comparable,

or  comparable" or "historically" comparable can have no force

and effect, much less be conclusive of the issue.  It is enough

to say that Bothell is unique: not comparable to any other city.

 

d)         Cost of Living

 

            The Bothell Firefighters asked for a salary increase of

9.4%, the May 1977 to May 1978 Seattle-Everett Consumer Price

Index.  The Firefighters advanced several reasons: the request

was not exorbitant because the increase was necessary just to

keep up with inflation, the increase would neither dislocate

the City's proposed balanced budget nor cause any cut backs,

the proposed budget already provided for at least an 8.4% in-

crease for all other employees, more than the City's 7% offer

to the Firefighters, the police with whom the Firefighters

shared a "historical" and "de facto" parity had already

settled for a 10% increase, and it was just not true that

Firefighters' wages had exceeded the rise in the Consumer Price

Index (City Exh. #4) .  Just the opposite is true; "Bothell

Firefighters are barely keeping pace with the rise in the CPI"

(Firefighters' Brief, p. 4).

 

            The City thought the Seattle-Everett CPI inapplicable

to Bothell because the Firefighters' wages had not only in-

creased rapidly but had exceeded the CPI over the past few

years.  These wages "have to be leveled off."  And, the City

thought that the Seattle-Everett CPI could not be fairly used

because the CPI has a "considerably large" element for housing

costs, and a "large increment" for medical care.  The City's

calculation was: if housing and medical care (paid by the

City) were to be eliminated from the CPI computation, the

actual and applicable cost of living increase for Bothell

would be less than 7%.  Were the fact finder to recommend the

May 1977 to May 1978 Seattle-Everett CPI, the Panel would re-

commend a "double benefit" to every Firefighter whose medical

payments are paid by the City and to every Firefighter who

owns his home.

 

e)         Changes in any of the foregoing circumstances during the

            pendency of the proceedings

 

            None.

 

f)          Such other factors.not confined to the foregoing. which

            are normally or traditionally taken into consideration

            in the determination of wages, hours and conditions of

            employment.

 

            This "catchall" guideline allows the fact finder to con-

sider those conditions equally  or more important than the

other guidelines which give color, context, and reality to the

statistical evidence.  Bothell, a small city with the usual

banks, businesses, and shops, situated in a largely rural area,

enjoys small town amenities with easy access to the Seattle-

Everett Metropolitan area.  Bothell, the cross roads of two

major arterials, suffers from an increasing traffic congestion

and encroaching urbanization.  The Firefighters enjoy open and

easy access to the City Manager; their inability to agree on a

Collective Bargaining Agreement arises out of different per-

specitves and interests.  Other factors are considered in the

 

Section V - RECOMMENDATIONS.

 

V         RECOMMENDATIONS

 

            These recommendations flow from a consideration of the

limited application of the CPI, from the bargaining history,

and from an assessment of political and economic realities.

They also consider and "give considerable weight to the many

unique aspects of Bothell and its fire department" (City Brief).

In effect, I have combined and correlated the mass of evidence

and arguments to arrive at the most "reasonable" and most

acceptable" bargain, one which the parties would have struck,

if they could have, by themselves.

 

            It is true, as practitioners are well aware, and as the

City noted that the deficiencies inherent in the CPI make it

merely a guide rather than a definitive statement," applicable

primarily to "urban" centers.  Yet it is still one of the most

authoritative and reliable measures to determine an acceptable

and fair wage and benefit package.  The CPI does offer  a

practical rule to estimate the rise in the cost of living,

hence to determine the relative percentage salary increase

necessary to maintain an employee's real income.  Although the

CPI is a most useful guide, I have given greater weight to the

respective bargaining positions of the parties on November 16,

1978.  On that date the parties were close to an agreement and

the City Manager thought that the proposal of the Firefighters

was a "good proposal."  These positions delimit the range of

acceptability," and they circumscribe the fact finder's juris-

diction over the subject matter.

 

1 - Salary Increase

 

What would be a fair and acceptable salary increase'?

 

            Is the Firefighters' offer to settle for 8.58% salary in-

crease "a bit too high," as the City Manager said?  An 8.58%

salary increase is  reasonable," and "within range": the City

had already budgeted an 8.4% increase for all other employees

including the Firefighters (Memorandum of November 27, 1978);

the City Manager had used 8.4% in his Wage Survey Comparison;

and the police had already settled for a 10% increase.

 

            I have given 'strong consideration" to the Presidential

Guideline of 7%.  This defense is inadequate.  First, the City

never advanced the federal guide line in fact finding until

November 20, 1978, shortly after the parties were close on the

percentage increase (8.4% vs. 8.59%) .  Second, the fact finder

is not a creature of the Federal government but an agent of

the State.  He has no choice but to apply state law unless

state law has been preempted by federal statute.  Third, the

City offered no evidence or argument to show why or how the

federal guideline was applicable to Bothell.

 

RECOMMENDATION:      1 (a)   That the City increase the Fire-

                                                            fighters' base salary by 8.6%

 

            This increase, lower than the 9.4% May to May CPI gives

the Firefighters some protection against inflation, reflects

the Firefighters' bargaining position, and considers minimal

education and entry skills required, turnover rate, product-

ivity, ambience, non-work hours, geographic location, political

climate, and the salary adjustment effective July 1, 1978.

The 8.6% also considers the effect of inflation on the City's

budget and the need for the Firefighters, as well as all other

citizens, to accommodate to the extent possible to federal

guidelines.

 

                                                (b)        That the 8.6% be applied across

                                                            the board.

 

            The politically sensitive "distribution" argument cannot

be resolved in fact finding.  All ranks suffer the onslaught

of inflation.  If, as the City says, the Captain's salary is

,, misaligned,'' the recourse in equity is in the elimination of

captains and other supervisors from the bargaining unit not

in invidious discrimination against the more energetic or the

more competent.

 

RECOMMENDATION:      2 -        Command Duty; That the City pay

                                                            $75 when so assigned

 

            Firefighters have performed this service, the City needs

it, and the parties have agreed on $75.

 

RECOMMENDATION:      3 -        Educational Incentive; That the City

                                                            deny the Firefighters' request.

 

            These provisions are not only rare but the Firefighters

advanced no convincing evidence or arguments to support their

request.  The City's offer of $50 a month "to attempt a settle-

ment" is politically desirable but unsupported by the facts.

Incentive is eminently personal: it requires personal sacri-

fice and carries the promise of personal reward in promotion

and in salary increase.

 

RECOMMENDATION:      4 -        For the 1980 Contract Year: That the

                                                            City grant the Firefighters the May

                                                            to May CPI

 

            To achieve "acceptability" and "reasonableness," I gave

serious consideration to the City's admonition that "any

settlement where salary and fringe benefits increases exceed

CPI is unreasonably high" and to the Firefighters' need to

stave off the ravages of inflation.

 

 

James R. McMahon                                                  Clarence L. Ashe

For the City of Bothell                                               For the Firefighters

 

 

December 9, 1978                  Charles E. LaCugna /

Seattle, Washington               Chairman