International
Association of Fire Fighters Union Local No. 726
And
City
of
Interest
Arbitration
Arbitrator: Robert A. Sutermeister
Date
Issued:
Arbitrator: Sutermeister; Robert A.
Case #: 02726-I-80-00073
Employer:
City of
Date Issued:
Interest Arbitration
City of
and
International Association of
Firefighters
Union Local No. 726
Dates of Hearing:
Place of Hearing:
Date Post-Hearing Briefs
Received:
Representing
the City: Mr.
R. Theodore Clark, Jr.
Seyfarth, Shaw, et al
Representing the
Arbitration Panel: City
Representative
Mr.
Cabot Dow
Union
Representative
Mr.
Doug McNall
Chairman
Mr.
R. A. Sutermeister
Summary
The arbitration panel has
adopted the City's proposals on:
I. Wages
II. Longevity
III. Rank
differential
V. Duration
of contract
X. Overtime
The arbitration panel has
adopted the
VI. Management
rights (in part)
VII. Prevailing
rights
XI. Non
pyramiding
XII. Entire
agreement
XIII . Medical/Dental
XIV. Emergency
Call-in
The parties were in agreement
on:
X. Probation
On the following issues the
panel has adopted some portions of the proposals;
rejected
some portions; and mandated no change on other portions until such
time
as the parties can negotiate the provisions themselves:
IV. Grievance
Procedure
VIII. Sick leave
Background
The previous contract between the parties was in effect
for the
calendar
years of 1978 and 1979. The parties
negotiated on a new contract
but
were unable to agree in several areas.
After mediation, the parties
referred
the following issues to the panel for resolution:
1. Wages 7. Prevailing
Rights
2. Longevity 8. Sick
Leave
3. Rank
differential 9. Probation
4. Grievance
Procedure 10. Overtime
5. Duration
of the 11. Non pyramiding
agreement 12. Entire agreement
6. Management
Rights 13. Medical/dental insurance
14. Emergency call-in
Guidelines for Arbitration
Panel
RCW 41.56.460 lists guidelines for an arbitration panel
to use in making
its
decisions (Union Exhibit 14). The panel
believes the two most important
criteria
are:
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
uniformed personnel of cities and counties respectively of
similar
size on the west coast of the
d) The average consumer prices for goods and services, commonly
known
as the cost of living.
The panel is well aware of the advantage to the City of
having parallel
clauses
in the contracts between the City and various Unions representing
employees
and is sympathetic to this objective. In
fact, one of the guide-
lines
calling for "comparisons among uniformed personnel" does allow the
Panel
to consider wages, hours and conditions of employment for the police.
However, the panel does not
feel this is an overriding consideration, but
that
data on wages, hours and conditions of employment for firefighters in
comparable
cities, or compelling evidence or arguments, should be given
greater
weight than clauses in contracts with other employee groups in
The panel furthermore feels that its role is not to usurp
the
negotiating
process of the parties. Where the issues
appear to us to
be
critical,
we have made decisions. Where the issues
appear to us to be
non-critical,
we have been hesitant to impose our judgments on the parties
but
have left several of these issues to be resolved through negotiations.
Cities for Comparison
The parties have not agreed on a list of cities of
similar size
with
which comparisons can be made. The
practice
of comparing
arbitration
panel, but the guidelines set down by RCW 41.56.540 require
the
panel to consider comparable cities whether the parties have done
so
in the past or not.
During negotiations this year, the City did introduce a
list of the
24 largest cities in
among the
highest paid. This list, minus the
cities east of the Cascades,
was
referred to by the
prepared a
different list of cities for use in the arbitration, con-
sisting of all cities in
between
10,000 and 30,000.
17,000.
Following are the lists of
in
arbitration:
City of Puyallup IAFF
726
Aberdeen - - - - - - - - - - - - - - - - - - -Aberdeen
Auburn- - - - - - - - - - - - - - - - - - - - - -Auburn
Centralia
Edmonds- - - - - - - - - - - - - - - - - - - -Edmonds
Ellensburg
Hoquium
Kelso
Kennewick
Kent- - - - - - - - - - - - - - - - - - - - - - - -Kent
Kirkland
Lynnwood- - - - - - - - - - - - - - - - - - - Lynnwood
Mercer Island- - - - - - - - - - - - - - - - -Mercer
Island
Moses Lake
Mountlake Terrace- - - - - - - - - - - - -Mountlake
Terrace
Mount Vernon
Olympia- - - - - - - - - - - - - - - - - - - - -Olympia
Pasco
Port Angeles
Pullman
Redmond- - - - - - - - - - - - - - - - - - - Redmond
Walla Walla
Wenatchee
Bellevue
Bellingham
Everett
Longview
Renton
Seattle
Tacoma
Vancouver
The panel recognizes the limitations of any list of
comparable
cities,
but believes the fairest comparison can be made with cities
of
similar size in Western Washington. The
panel has therefore
selected
the following cities, between 10,000 and 30,000 in population,
as
comparable cities.
__________
Aberdeen Lynnwood
Auburn Mercer
Island
Centralia Mountlake
Terrace
Edmonds Mount
Vernon
Hoquiam Olympia
Kelso Port
Angeles
Kent Redmond*
Kirkland
_____
* Only limited data were available from Redmond,
and statistics on one
or
two other comparable cities were missing from some exhibits; thus there
are
not always the total of 15 cities for comparison.
__________
I. Wages
The City proposed a three-year agreement with no wage
increase for
1980, and increases in 1981
and 1982 equal to those granted in the contract
with
policemen. The Union proposed a two-year
agreement, with no increase
for
the first six months of 1980; an 8% increase for the last six months
of
1980; an increase on January 1, 1981 equal to the increase in the
Consumers' Price Index for
Seattle-Everett between May and November 1980;
and
an increase on July 1, 1981 equal to the increase in the same CPI
between
November 1980 and May 1981, less 2%.
Previous contracts between the parties resulted in two
pay increases
in
1976, two pay increases in 1977, four pay increases in 1978, and six
pay
increases in 1979. At the end of 1979,
Puyallup first class firefighters
had a
monthly salary of $1852 compared to an average 1980 salary of
$1679
for comparable cities used by the panel. If "assessed valuation" is
used
as a measure of "size," Puyallup's assessed valuation per capita was
$12,354(1) compared to an
average of the cities used by the panel of $15,840.
_____
(1) This was the City's figure in City Exhibit 18. The Union introduced
a
figure of $13,452. Both figures are
considerably below the average for
comparable
cities.
_____
Regardless of cities used for comparison in past years,
regardless of
the City's ability to pay, regardless of salary
increases
compared with cost of living increases, the overwhelming evidence
presented
to the panel is that Puyallup firefighters have fared very well
in
the past so that their salaries now rank at the very top of comparable
cities. Thus it is the panel's judgment that the
City's wage offer is a
reasonable
basis for settlement and should be adopted. The following
schedule
will result:
__________
Position Average (2)
for 1979 1980
(3) 1/1/81 7/1/81 1/1/82 7/1/82
Captain 1922 2037 2147 2230 2312 2367
Firefighter (1st class) 1748 1852 1952 2027 2102 2152
Firefighter (2nd class) 1754 1849 1920 1991 2038
Firefighter (3rd class) 1660 1750 1817 1884 1929
Firefighter (4th class) 1583 1668 1732 1796 1829
Firefighter (probation) 1498 1579 1640 1701 1742
_____
(2) From City Exhibit 1.
(3) These figures represent an increase of approximately 6% above
the
average
salaries for 1979. The reduction in
hours per work week from
52 to 50 effective January 1,
1980 represents a further increase in wages.
__________
II. Longevity
The proposals of the parties on longevity provisions
follow:
__________
Current agreement
and
City Proposal Union
Proposal
January
1, 1980
5 - 9 years 1% 1%
10 - 4 years 1.5% 2%
15 -19 years 2% 3%
20 years + 2.5% 4%
July
1, 1980
5 - 9 years 1% 2%
10 - 14 years 1.5% 4%
15 - 19 years 2% 6%
20 years + 2.5% 8%
__________
Of the 15 cities used by the panel for comparison
purposes,
longevity
after 15 years service is computed as follows:
__________
No longevity provisions 6
cities
1% 1
city (Hoquiam which pays $20)
2% 4
cities (Mt. Vernon pays $45 &
Centralia
$30)
4% 2
cities (Lynnwood pays $60)
6% 2
cities
1.93% Average
__________
Thus, Puyallup, with 2%
longevity after 15 years' service, is slightly
above
the average.
Comparisons of salary plus longevity (City Exhibit 33-36)
for
the
15 cities used by the panel show:
__________
Salary Plus
Longevity
Puyallup Average of Comparable
Cities
After 5 years $1871 $1690
After 10 years $1881 $1705
After 15 years $1889 $1714
After 20 years $1898 $1722
__________
The panel believes the present longevity provisions
place Puyallup
in
a very favorable relationship with comparable cities and should be
retained
in the new agreement.
III. Rank Differential
The current differential between the salary
of Firefighter 1st class
and
Captain is 10%. The City proposes to
retain the present differential,
while
the Union proposes that the differential be 12% effective July 1,
1980
and 15% effective July 1, 1981.*
_____
* These figures come from Union Exhibit 28 and from the
post-hearing
brief. The effective dates differ from those stated
in the Transcript
(page
252).
_____
Since many comparable cities have Lieutenants as a rank
between
Firefighter 1st class and
Captain, the panel places greater weight on
City
Exhibit 39 than on Union Exhibit 19. Using the 15 cities on City
Exhibit 39 which the panel has
selected as comparable cities, the average
percent
difference between salaries of Firefighters and Lieutenants/Captains
is
10.16%. This figure is very close to the
current differential in
Puyallup between Firefighters
and Captains and, in the panel's opinion,
the
10% differential should be retained in the new agreement.
IV. Grievance Procedure
The City proposed a (1) more precise definition of
"grievance,"
(2) a
statement that there is only one outstanding grievance on January 1,
1980, and (3) a time limit for
filing a grievance of 60 days from the
situation
giving rise to the grievance.
In its post-hearing brief, the City modified its position
on the
third
item above by adding "or within 60 days after the employee through
the
use of reasonable diligence should have become aware of the situation
giving
rise to the grievance."
Since comparable cities used by the panel (with only one
possible
exception)
define grievances in terms of the agreement, the panel supports
the
City's proposal as follows:
A
grievance shall be defined as a dispute or disagreement
raised by an employee, or group of
employees against the
City involving the interpretation or
application of the
specific
provision(s) of this agreement.
Since testimony at the hearing revealed that there was at
least one
grievance
outstanding on January 1, 1980, the panel rejects the City's
proposal
as follows:
The
Union and employees agree that there are no outstanding
grievances
on the date the new agreement goes into effect.
Although the panel is sympathetic with the idea of time
limits on
grievances
and believes such limits are beneficial to both parties, the
majority
of cities on the panel's list of comparable cities do not have time
limits
(8), and a minority do have time limits (6).
The parties are in
agreement
that a grievance must be filed within 60 days after a situation
arises
or after the employee knows or should have known about the situation
which
gives rise to the grievance. A
statement that that effect shall be
included
in the 1980-1982 agreement. Any
additional time limits should be
provided
through negotiation.
Although no evidence was presented to the panel on the
practices of
comparable
cities in regard to obtaining lists of arbitrators, striking names,
a
new paragraph (#7) in the grievance procedure,(1) the proposal for prohibiting
an
arbitrator from adding to, subtracting from, or modifying the agreement,(2)
and
compensation of witnesses, the panel believes the article on grievance
procedure
should specify that:
1. the parties make a joint request to
FMCS for a list of arbitrators,
since
there is no cost for this service and it gives the parties
the
opportunity to select an arbitrator,
2. each
party take its turn in striking one name from the list,
3. a flip of a coin determine which party strikes the
first name,
4. an
arbitrator be prohibited from adding to, subtracting from,
or
modifying the agreement,
5. each party compensate its own witnesses at an
arbitration hearing.
On the other hand, the panel
believes that the Union's proposal for
a
new paragraph (#7) should be negotiated and not imposed upon the
parties
by the panel.
_____
(1) The City did present some testimony regarding comparable
cities but no
exhibit
(Tr. 338).
(2) Article XVI in the 1978-79 agreement already contains a
sentence limiting
the
authority of the arbitrator to the interpretation and application of the
agreement,
so that portion of the City's proposal is not addressed by the panel.
_____
V. Duration of Agreement
The City proposes a three-year agreement and the Union a
two-year
agreement.
Among the cities used by the panel for comparison
purposes, 6 have
3-year contracts, 4 have two-year
contracts, and 3 have 1 year contracts.
The panel believes a 3-year
contract is appropriate for the following
reasons:
1. this places Puyallup in line with the majority of comparable
cities
2. this will greatly reduce time and expense of yearly
negotiations
3. this will be in line with contracts negotiated by the city
with other employee
groups
4. the panel
agrees with the Union that it is impossible to predict
cost
of living figures 3 years in advance, but feels the Union
is
in an excellent Position now compared to other cities and,
with
the wage offer adopted, will remain in a good position
relative
to other cities over the 3-year period.
The contract period will be
January 1, 1980 to December 31, 1982.
VI. Management Rights
The City proposes a new management rights clause in the
contract,
as
follows:
It
is recognized that the City shall retain whatever
rights
and authority are necessary for it to operate
and
direct the affairs of the Fire Department, including,
but
not limited to, the right to direct the working
forces;
to plan, direct and control the operations and
services
of the Fire Department; to determine the methods,
means,
organization by which such operations and services
are
to be conducted; to assign overtime; to lawfully
recruit,
assign, reassign or promote employees within the
Fire Department; and (for cause) to fairly
demote, suspend,
discipline,
discharge employees; or relieve employees
due
to lack of work or other legitimate reasons; to make
and
enforce reasonable rules and regulations; and to make
reasonable
changes or eliminate existing methods, equip-
ment
or facilities.
The Union opposes a management rights clause on the
groups that it
is
not needed, and the City already has the right to assign overtime and
to
enforce reasonable rules and regulations.
However, if a clause is
mandated
by the arbitration panel, the Union proposes it read as follows:
It is recognized that the City shall retain whatever
rights
and
authority are necessary for it to operate and direct the affairs
of
the fire department, including, but not limited to, the right
to
direct the work force, to plan, direct, and control the operations
and
services of the fire department, to determine the methods and
means
by which such operations and services are to be conducted,
lawfully
recruit, assign, reassign, or promote employees within
the
fire department and, for just cause, to demote, suspend, discipline
or
discharge employees, and to make reasonable changes or eliminate
existing
methods, equipment or facilities.
Eleven of the 15 cities used by the panel as comparable
cities have
management
rights clauses. The panel believes
such a clause should be
included
in the contract and supports the Union's proposal until such time
as
the parties may negotiate changes.
VII. Prevailing Rights
Article XXI - PREVAILING RIGHTS - in the 1978-1979
agreement between
the
parties states:
All
rights and privileges held by the employees at
the present time which are not
included in this agree-
ment
shall remain in force, unchanged and unaffected
in any manner.
The City proposes that Article
XXI be amended to state:
Except
as otherwise stated in this Agreement, the
Employer agrees that in placing the terms of
this
Agreement into effect it will not cancel
rights or
privileges
generally prevailing for employees even
though such rights or privileges are
not itemized
in this agreement.
The Union states the present
wording of Article XXI has been in the
contract
since 1971 and there is no reason for a change.
Of the 15 cities deemed comparable to Puyallup by the
panel,
City Exhibit 52 provides data
on 14. Six of these have no prevailing
rights
clause, 6 have clauses we deem similar to the clause in Puyallup's
1978-1979 contract, and 1 or
possibly 2 have clauses we deem similar
to
the City's proposal. The parties have
had the present provision in
the
agreement since 1971. The panel agrees
with the Union that there
were
no compelling reasons presented to the panel for a change in the
article,
and that the phrase "generally prevailing" is ambiguous and
would
present problems of interpretation. The
panel thus feels that
there
should be no change in Article XXI until it is negotiated by the
parties
themselves.
VIII. Sick Leave
Both parties proposed to change the sick leave provisions
of the
1978-1979
agreement. The
City proposed to reduce sick leave for non-
duty
connected injury or illness from 12 to 10 hours per month for 24-
hour
shift personnel, whereas the Union proposes to retain the 12 hours
per
month and, for LEOFF II employees, create a "bank" of 144 hours sick
leave
when a new person is hired and have that person "pay back" by
cutting
his accrual rate from 12 hours to 6 hours per month during his
third
and fourth year of employment.
The parties are in agreement in their proposal that 8
hour shift
*personnel should accrue
sick leave at the rate of 8 hours per month
to
a maximum of 1040 hours.
Article X of the 1978-1979 agreement provides:
Upon
termination of employment, whether voluntary,
involuntary,
or by retirement, the firefighter shall
receive
one-half accumulated sick leave up to 65 days
at regular rate of pay as
severance pay; except an
employee
terminating employment by retiring with 25
or more years of service with
the City shall receive
100% accumulated sick leave up to 130 days
at regular
rate of pay as severance pay.
Both parties made proposals regarding pay out of accrued
sick leave,
and
both parties agreed such proposals would apply only to employees hired
after
January 1, 1980. The City proposed pay
out of accrued sick leave
only
upon normal service retirement, after 25 years, and not if an employee
resigned
or was discharged. The Union proposed
pay out of accrued sick
leave
be denied if an employee terminated voluntarily prior to 25 years of
service. The panel feels that if an employee
terminating voluntarily prior to
25 years of service is denied
sick leave, there is even greater reason
for
denying accrued sick leave to an employee discharged. Moreover,
City Exhibit 55 indicates
that, of 14 comparable cities, 11 pay out no
accrued
sick leave when an employee terminates. The
City's proposal should
be
included in the 1980-1982 agreement, as follows:
Upon
termination, any employee hired after January 1,
1980, shall receive no cash value of any
sick leave
accrued
but not used, except upon normal service
retirement.
The Union further proposed that, for LEOFF II employees,
sick leave
shall
be used for on-the-job injury to supplement workmen's compensation
so
that the employee would receive 100% of his base pay. The City's
proposal
was that LEOFF II personnel injured on the job shall be covered
in
accordance with Washington State Law through Workmen's Compensation.
The panel was given some evidence that further
negotiations between
the
parties may well have resulted in agreement on most
of the items
proposed
on the sick leave issue. We believe that
route is better than
solutions
imposed by the panel, and that present provisions on sick leave
should
be continued in the new agreement, with the two exceptions marked
above
by asterisks, until such time as the parties themselves may negotiate
changes.
IX. Probation
As long as a probationary employee is eligible for a pay
increase
after 6
months, as he is under the City's proposal, the Union is in
agreement. Therefore the City's proposal, as follows,
should be included
in
the agreement as Article V:
All
new employees shall serve a probationary period of
one year, as per Washington State
Civil Service Laws
and as implemented by City of
Puyallup Civil Service
By-Laws, and shall have no seniority rights
during this
period but shall be subject to all
other clauses of this
agreement. All employees who have been employed for one
year shall be known as permanent
employees and the
probationary
period shall be considered part of their
seniority
time.
It is understood that probationary firefighters will
continue to be
eligible
for a salary adjustment after 6 months.
The panel presumes
Appendix B will be changed to
indicate that a Firefighter 4th class is also
Probationary.
X. Overtime
In the 1978-1979 contract,
overtime was based on 2080 hours per year
(or
40 hours per week). However, the current
work week is 50 hours which
translates
into 2600 hours per year.
The City proposes 2600 hours per year as the basis for
overtime,
while
the Union position is to leave it at 2080 hours per year.
Of the 14 comparable cities used by the panel, 12 base
overtime
on
hours worked and 2 base overtime on a 40 hour work week.
The average overtime rate for the 14 comparable cities
used by the
panel
is $12.69. This compares to $12.82 per
hour for Puyallup if
2600 hours is used as a base.
The panel believes the City's proposal will place
Puyallup in a
reasonable
relationship with comparable cities and should be included
in
the contract, to be effective at the beginning of the first pay period
following
receipt by the parties of the arbitration panel's award.
XI. Non-Pyramiding
The 1978-1979 contract has no
provision for non-pyramiding. The
Union opposes adoption of a
clause, feeling it is not needed. The
City
proposes
the following:
Compensation
shall not be paid more than once for the
same hours under any provision of
this agreement. In
no event shall any overtime,
acting pay or premium pay
be pyramided or be considered
part of base pay under
any provision of this agreement.
The panel is in sympathy with the City's intent in
desiring this
clause,
but there was no evidence this is a critical problem, no evidence
of
the existence of a non-pyramiding clauses in contracts of comparable
cities,
and a strong statement from the Union representative that
pyramiding
"has never happened in our City, we don't intend for it to
happen,
and we don't feel it's needed in the agreement."
The panel believes that any such clause should be
negotiated and
not
mandated by the panel.
XII. Entire Agreement
The 1978-1979 contract has no
clause on this subject. The Union
opposes
the addition of such a clause on the grounds it is not needed.
The City proposes the
following clause:
The
parties acknowledge that during the negotiations
which resulted in this Agreement,
each had the unlimited
right and opportunity to make
demands and proposals with
respect
to any subject or matter not removed by law from
the area of collective
bargaining, and that the under-
standings
and agreement arrived at by the parties after
the exercise of that right and
opportunity are set forth
in this Agreement. Therefore, the Employer and the Union,
for the life of this Agreement,
each voluntarily and
unqualifiedly
waives the right, and each agrees that the
other shall not be obligated, to
bargain collectively
with respect to any subject or
matter not specifically
referred
to or covered in this Agreement, even though such
subjects
or matters may not have been within the knowledge
or contemplation of any or both
of the parties at the time
they negotiated or signed this
Agreement. The parties further
agree, however, that this Agreement
may be amended by the
mutual consent of the parties in
writing at any time during
its term.
On City's exhibit 60 there are contractual provisions on
"complete
agreement"
quoted from the agreements of 11 cities.
Of these 11 cities,
8 are among the list of
comparable cities as judged by the arbitration
panel. This means 8 out of a total of 15 comparable
cities have some
type
of "complete agreement" clause.
Many of these clauses merely
provide
that "no previously written or oral statements shall add to or
supersede
any of its provisions."
Since most comparable cities do not have the
all-inclusive type of
entire
agreement clause proposed here, and since a compelling need
for
such
a clause has not been demonstrated, it should not
be included in
the
1980-1982 agreement.
XIII. Medical/Dental Insurance
The 1978-1979 contract provided
for the City to pay full premium
cost
of employees and dependents for medical, dental, vision and drug
expenses. The City proposes that "no added costs
be incurred by the
City
during 1980," prospective after the arbitration award. The City
agrees
to pick up the added costs, if any, in 1981 and 1982--but simply
to have
a cap on costs for the balance of 1980.
The Union proposes to
continue
the present clause in the new agreement.
Since there was no evidence that a further increase in
insurance
premiums
is likely in 1980, and since there will be only about 31/2 months
left
in 1980 when the arbitration decision reaches the parties, the panel
feels
that provisions in the 1977-1979 agreement should be continued in
the
1980-1982 agreement.
XIV. Emergency Call-In
Article XIII in the 1978-1979 agreement includes this paragraph:
Whenever
possible additional manpower requirements of the
Fire Department shall be met by affording
the opportunity
to work to full-paid members of
the Fire Department.
The Union wishes to retain
this clause in the agreement since it has been
in
the agreement since 1973 and does not prevent the use of volunteers but
only
requires the City to call the career firefighters first.
The City proposes to omit the paragraph quoted above, so
it will
have
the option of using volunteers if feasible for financial or other
considerations. (There are currently no volunteers in the
department.)
Examining cities in City Exhibit 63, of 15 cities deemed
comparable
by
the panel, 7 use volunteers, 5 have all paid firefighters, and 3 did
not
report. The panel is not persuaded that
this issue is sufficiently
critical
at this time to justify the panel imposing its opinion on the
parties.
Thus Article XIII in the 1978-1979 agreement should be
continued
in
the 1980-1982 agreement.
Seattle, Washington RA
Sutermeister, Chairman
September 18, 1980 Cabot Dow *
Doug
McNall *
*Signatures do not indicated concurrance with every item.