International
Association of Fire Fighters, Local 2221
And
Pierce
County Fire District No. 9
Interest
Arbitration
Arbitrator: Phillip Kienast
Date
Issued:
Arbitrator: Kienast; Philip
Case #: 02194-I-79-00060
Employer:
Pierce County Fire District 9
Date Issued:
IN
THE MATTER OF ARBITRATION
PIERCE
DISTRICT #9 (
) of
) Philip Kienast
and )
)
) RE: Interest
Arbitration
INTERNATIONAL ASSOCIATION ) on
1980 Contract
OF FIRE FIGHTERS, LOCAL )
2221 )
________________________________ )
APPEARANCES
For the
Mr. Ronald E. Menge,
Secretary-Treasurer
For the District:
Mr. Frank Wally, Commissioner
OPINION
This proceeding is pursuant to RCW 41.56 and applicable adminis-
trative codes as adopted by the
Relations
Commission. A
hearing in this matter was held on November 5,
1979 at which time both
parties were afforded unlimited opportunity
to
present evidence and argument regarding the issues in dispute.
Post hearing memorandum were
simultaneously submitted by mail on
receipt
by the Arbitrator on
At the time of the hearing the parties stipulated the
following
items
for a successor contract to the current Agreement (J2)* between
the
parties were unsettled and properly before the Arbitrator for
disposition (Jl).
1. Wages
2. Hours
3. Educational Reimbursement
4. Sick Leave
5. State Industrial Insurance
6. Term of Agreement
7. Holidays
8. Shift Changes
RCW 41.56.460 specifies the criteria or factors the
Arbitrator
must
consider in his decision:
41.56.460 Uniformed
personnel - Arbitration Panel Basis
for
determination. In
making its determination, the panel
shall
be mindful of the legislative purpose enumerated in
section 1
of this 1973 amendatory act and as additional stan-
dards or guidelines to aid it in reaching a
decision, it shall
take
into consideration the following factors:
_______________
*J, U and E respectively denote Joint,
exhibits.
(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 condi-
tions 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.
(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 consideration
in
the determination of wages, hours and conditions of
employment.
(g) Findings
of fact made by the fact-finder pursuant
to section
3 of this 1973 amendatory act. [1973 c
131 sec. 51
41.56.430 Uniformed personnel - legislative declaration.
The intent and purpose of this
1973 amendatory act is to
recognize
that there exists a public policy in the state of
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
to
promote such dedicated and uninterrupted public service
there
should exist an effective and adequate alternative means
of
settling disputes. [1973
c 131 sec. 2.]
The Arbitrator has carefully
considered all these factors in deciding
the
aforementioned issues as set out below.
The parties' presentations, especially the
uncertainty
as to the decision rules that shall be applied by the
Arbitrator
in determining the issues in dispute. In particular the
I would like to start this
letter off by saying that I am
very
unhappy with the way that the Arbitration Case went.
This is all new to me and deep
in my heart I felt that
justice
would be served. We are a small
Department and
have
traditionally been much more dedicated than most
other
Departments. We have always worked
harder and given
our
"free time" generously.
Somehow I felt that in this
proceeding
we would be rewarded for a job well done.
Such
was
not the case.
You have talked about gains
and total packages. After much
thought
and talking it over with a disappointed membership,
I would like to clarify a few
things. The
into
Negotiations by bargaining in "good faith" and we have
continued
to do so. This is something we feel the Commis-
sioners have not done. When we entered into this we did not
do
so with inflated requests or "give away" items. We feel
justified
in everything we have asked for.
However, you
gave
me the impression that no matter which side was right,
each
side had to give a little. We do not
have any "give
away"
items, so I will list the items in order of impor-
tance to us.
First and foremost, the
Arbitrator would emphasize that he does not
automatically
"give a little" to each side.
Rather he looks at each
issue
and awards on the basis of the legislated criteria set out above.
In this regard the Arbitrator
would call the
Award in the matter of
interest arbitration between City of
IAFF Local 469
(January 30, 1975) in which he affirmed the
position
in whole based on his analysis of the parties' positions
relative
to the aforementioned criteria. If
neither parties' posi-
tion is affirmed in total in the instant case it
indicates not a
predisposition
of the Arbitrator to give each side "a little," but
rather
his firm conviction that his determination meets the mandate
set
out in RCW 41.56.
Second, in making his decision the Arbitrator is
constrained to
do
so on the record made by the parties.
Thus, the Union assertion
that
its members are more dedicated. worked harder and
give of
their
time more generously" remains just that--an assertion. The
ceeding to document this assertion. While the
to
"feel" the Commissioners have not bargained in "good faith"
they
have
not proved such bad faith by the evidence in the record of this
proceeding. The process of interest arbitration would
lose credi-
bility entirely if an arbitrator were to give any
probative weight to
such
assertions. If the
smarter
than they did previously or in comparison to fire fighters
in
other departments it is incumbent on it to prove it by the weight
of
the evidence. The Union most certainly would
not want the issue
decided
substantially against them on the basis of Employer assertions
unsubstantiated
by the evidence. As to the importance of
the record
see
this Arbitrator's award in City of Billings, Mt. and IAFF Local
521
(June 19, 1979).
The first principal of this Arbitrator's decisional
framework is
that
interest arbitration constitutes an extension of collective
bargaining. This point of view is one normally and
traditionally
taken
by arbitrators of interest disputes. For
an eloquent elabora-
tion of the implications of this viewpoint the
Arbitrator refers the
parties
to the opinion of his colleague, Adolph Koven, in Associated
Hospitals of the East Bay
and ILWU, Local 6 (71-2 ARD 8479) where
he
states in part:
Not only is the 'interests'
arbitration an extension of
the
collective bargaining process but it is also an exten-
sion of the particular quality, in strength and
in weak-
ness,
of the specific collective bargaining situation and
relationship. In this sense the parties can neither
disengage
themselves from their history nor can they
disengage
themselves from their relative positions vis-a-
vis the other party. They each come with the very same
luggage
they previously carried to their negotiations and
cannot
expect it to become heavier or lighter simply
because
they now come before an interests'
arbitrator.
Without question, the most
extensively used standard in
'interests'
arbitration is 'prevailing practice' (Cleveland
Transit and Amalgamated
Transit, 45 LA 905).
***
In the final analysis, the
weight to be accorded a standard
in
any given case is, or should be, the result of the
evidence
submitted by the parties in respect of its appli-
cation.
[For a concurring view see
also Arbitrators Frank Eklouri and
Edna Elkouri,
How Arbitration Works, 3rd ed., 1973, Chapter 18.1
A large portion of "the luggage" the parties
brought with them into
this
proceeding is found in their current Agreement (J2) . One of the
best
guides an arbitrator has in determining what would be reasonable
to
award in a new contract is what the parties themselves have found
reasonable
to agree to in the past. Stated another
way, the party
proposing
new provisions or a break from past wage/benefit patterns
bears a
heavy burden of proof that such a change is now appropriate.
As noted above,one of the best measures of appropriateness is the
"prevailing
practice" or comparability standard.
In this latter
regard
joint exhibits on five purportedly comparable fire departments
were
submitted: Parkland, City of Puyallup,
University Park,
Spanaway and Lakewood (J2-7
and U 2-6) .
After a careful analysis
of
this evidence the Arbitrator has concluded that three; Parkland,
University Park and Lakewood
represent fire department operations most
comparable
to that found in District #9 (Summit) and looked principally
to
these three for guidance as to prevailing practices.
In terms of statutory authority and ability to pay the
Arbitrator
finds
no significant difference between District 9 and these three.
A basic comparison of the
wage/benefit packages in the three juris-
dictions
discloses
Education
Monthly Incentive Medical Sick
1979 Salary payc Dental Leave e Holidays
University
Park ($1,441) $1,624b 6% $105 10/20 9
Lakewood ($1,462) $1,624b 5% $135 3/30 11
Summita ($1,465) 6% $90 None 9
a
Current terms except for $90 medical/dental figure
already agreed
to for 1980.
b
Represent average monthly salary to be paid in 1980
per contract
formulas.
c
Percentage increment for AA degree in fire science.
d
Maximum amount payable for dependent medical and
dental coverage.
e Number of shifts paid sick leave LEOFF
1/LEOFF 2.
_______________
On the basis of a comparison of the wage benefit packages
shown
above
and a cost of living change of roughly 11% over the last year,*
the
Arbitrator concludes an 11.5% salary increase is warranted for the
1980
contract. This
increase will not only keep the average monthly
salary
in Summit ahead of those in the other 3 districts in 1980 as
they
were in 1979, but also provides a larger salary differential as
an
offset for the significantly large contributions made in these
other
districts to medical and dental insurance premiums. The
Arbitrator would have
preferred to allocate the money represented by
.5% of the awarded salary to
increases in medical and dental insurance
contributions
but was precluded from doing so by the parties' settle-
ment of that figure prior to arbitration. This preference is based
on
the fact that the same amount of dollars provides more real compen-
sation gain to the employees at less ultimate cost
to the District
when
social security and income tax factors are considered. The
Arbitrator would note that the
parties are free to mutually modify
the
salary award to accomplish a greater allocation of total compen-
sation dollars to medical and dental premiums.
*11.7% if measured July to July and 10.7% if measured
September to
September; based on changes in
Seattle urban and clerical workers index.
Also, as a matter of basic equity, this Arbitrator finds
no
reason
to award any larger salary increases in the context of a current
negative
trend in real compensation for the average American worker.
Recent published figures from
the Bureau of Labor Statistics (USDL-
79-307) reveal that in the
twelve month period beginning April 1,
1978, the real compensation of
the average private sector worker in
the
U.S. declined at an annual rate of 0.2%.
This measure reflects
changes
in wages, salaries, holiday pay, vacations as well as employer
contributions
to employee benefit plans such as medical and pension
programs. Given the hike in medical/dental
contributions already
agreed
to by the parties, the Arbitrator estimates that the average
fire
fighter in Summit will experience significant real compensation
gains
superior not only to the average worker, but by all appearances,
to
an elite class of wage earners, namely, unionized building trades-
men. A recent BLS analysis of compensation
provisions in building
trades
contracts across the country disclosed that in the twelve month
period
beginning April 1, 1978, wage rates rose by only 6.0%. When
employer
paid benefits for paid insurance, pensions and paid time off
are
added to the basic wage the increase rose to only 6.4% [USDL
79-324] . During this same period the annual percentage
change in
the
CPI for the U.S. as a whole was 9.9%.
Clearly these tradesmen
experienced
no real compensation growth as a result.
In light of the foregoing, the request of the Union that
the
Arbitrator further accelerate
the rate of real compensation growth for
Summit
fire fighters is denied.
The Arbitrator believes, absent
extraordinary
justifications, that equity requires a balance be main-
tamed
between real compensation growth among all wage earners, public
and
private--although recognizing that in some periods one or the other
will
grow at a somewhat faster rate.
Depending on the period, this
might
justify a tempering of adjustments to the "economic package" of
the
Union's members as is the case now, while in other periods it may
similarly
warrant enhancement of a fire fighters compensation package.
The Arbitrator acknowledges
the validity and well accepted arbitral
principle
that public employees should not be asked to subsidize public
services
through the acceptance of substandard wages.
But he is also
of
the opinion that its converse is equally valid as well as relevant
to
the instant case; namely, that private employees should not be asked
to
underwrite compensation levels for public employees above the norm
for
comparable work in the private sector.
All workers desire to main-
tam and enhance their real
compensation levels as well as their rela-
tive position within the economy 5 compensation
hierarchy. On the
basis
of the record before him, the Arbitrator can find no compelling
reason
to further accelerate the rate of real compensation growth for
Summit fire fighters through
an endorsement of the Union's proposed
salary
adjustment of 15%.
The Arbitrator further concludes no change in the
educational
incentive
plan is warranted at this time save for a clarification in
the
language to have the specified incentives apply to all employees
regardless
of date of hire. The Union did not make
a persuasive case
as
to why incentives above the AA degree should be offered. Moreover,
further
incentives are not paid in the other three districts. The
District presented no
persuasive evidence as to why the incentives
should
be limited to those who were employed at the time the provision
was
inserted. The language discloses no
clear intent to so exclude
new
hires from the benefit and the District presented no evidence
other
than heresay that such a limit was the clear mutual
intent of
the
parties.
As to the issue of sick leave the record discloses
substantial
support
for the inclusion of a sick leave provision in the new Agree-
ment.
Such provisions are already included in the Lakewood and
University
Park contracts.
Recent changes in the IFOFF System make
such
provisions appear as a reasonable response to a genuine but
different
need for both LEOFF 1 and LEOFF 2
employees. In this
regard
the Arbitrator believes the Union proposal (U7) misses the
mark. It fails to distinguish between the two. It also provides for
benefits
far out of line with the pattern found in the Lakewood and
University
Park contracts. The
Arbitrator has therefore awarded a
sick
leave clause that closely parallels this pattern and reflects
some
of the concerns raised by the District on this issue.
There is little evidence regarding the issue of
industrial insur-
ance in the record of this proceeding. In the absence of any evidence
to
the contrary it does not appear to be the practice in any of the
three
comparative jurisdictions or the fire service in Washington
generally. Moreover, the equity argument forwarded by
the Union is
not
persuasive in and of itself since it is not uncommon to find
employees
in the same organization enjoying some differential benefits
based
on date of entry into the system. In the
face of such a record
the
Arbitrator is constrained at this time to deny the Union proposal
on
this issue.
As to the issue of hours it is the District who seeks to
change
the
current language which provides for a "Detroit 56 hour/24 hour
shift
schedule" to permit a change to a 40 hour, five day staggered
shift
schedule. Since such a change would
admittedly alter a long
standing
shift practice codified in the current Agreement as well as
the
patterns of the comparison jurisdictions, the District bears an
especially
heavy burden of demonstrating the need for such a radical
change. The District presented a woefully inadequate
case to justify
such a
severe modification of this long standing provision of
the
contract. Moreover, since the parties
have stipulated this
shall
be only a one year Agreement, the District will have an oppor-
tunity shortly to achieve this change over the
bargaining table--a more
proper
place to make fundamental changes in working conditions than
an
Arbitration proceeding. Therefore the
Arbitrator denies the
modification
language change in the hours provision of the new Agree-
ment as requested by the Employer.
For many of the same reasons the Arbitrator denies the
Employer's
proposal
to change the Agreement language on shift changes. The
Employer has failed to
convince the Arbitrator that this language
has
caused any problems and was therefore in need of reformation.
The same is true regarding the
Union's proposed modification.
As to the remaining issues the parties appear to be in
substantial
agreement. Regarding holidays the Arbitrator concludes
from the posi-
tions of the parties and similar provisions in
the three comparison
jurisdictions
that the addition of one floating holiday (for a total
of
10) for day shift people and one additional shift (for a total of
7) for
24-hour-personnel is warranted and so awards.
At the time of
the
hearing the parties stipulated that a one year Agreement was their
joint
request of the Arbitrator.
AWARD
1. Wages:
Increase base monthly salaries in the current Agreement
by
eleven and one-half percent
(11.5%).
2. Hours:
Current Agreement language.
3. Shift Changes:
Current Agreement language.
4. Holidays:
Add one (1) new undesignated or
floating holiday for a total of
ten
(10) with 24 hour shift employees being given one (1) addi-
tional shift off per year for a total of seven (7)
during 1980.
All
other language in the holiday provision to remain unchanged.
5. Educational Incentive:
Revision of current language
under subsection Incentive Pay,
Appendix E.
In order for employees to
better serve the department,
a
six percent (6%) pay increase shall be awarded to any
employee,
regardless of date of hire, who receives the
Associate
Degree in Fire Command and Administration.
Three percent (3%) to be
awarded when the Certificate
Award is earned and three
percent (3%) when the Degree
is
earned. Those employees hired after
January 1, 1978
shall
be required to earn the degree while with the
department.
6. Industrial Insurance:
Union request for addition of
language to provide Employer payment
of
total premium denied.
7. Term:
One (1) year: January
1, 1980 through December 31, 1980.
8. Sick
Leave:
Addition of the following Article to the new Agreement:
Section 1. LEOFF Plan I covered employees:
a. Shift personnel shall be granted three (3) shifts and day
personnel
five (5) working days cumulative sick leave per year
to a
maximum of 12 shifts or 24 working days to be used prior
to application
for Disability Leave under the Washington Law
Enforcement
Officers and Firefighters Retirement System.
b. Employees having accumulated sick leave, who are absent due
to
reasons listed in Section 3 of this Article, for more than
twelve
(12) shifts or twenty-four (24) working days, as appli-
cable,
shall charge the absence to accumulated sick leave
commencing
on the~first hour the employee was unable to report
for
work.
c. Employees having accumulated sick leave shall exhaust such
sick
leave prior to applying for LEOFF Disability Leave and
such
disability leave shall be effective as of the first hour
the
accumulated sick leave is exhausted.
d. When an employee, who has no accumulative sick leave,
applies
for
disability leave, the commencement of the disability leave
shall
be as of the first hour that the employee was unable to
report
to work.
Section
2.
LEOFF Plan II covered employees:
a. Full-time employees assigned to a 56-hour work week shall
accumulate
paid sick leave at the rate of twelve (12) hours
for
each full month of service up to a maximum accumulation
of
seven hundred twenty (720) hours.
b. Full-time employees assigned to a forty (40) hour work week
shall
accumulate paid sick leave at the rate of eight (8)
hours
for each full month of service. Maximum
accumulation
for
employees shall be five hundred forty (540) hours. Sick
c. Shift personnel shall be granted three (3) shifts and day
personnel
five (5) working days nonaccumulative sick leave.
Employees who are absent due
to reasons listed in Section 3
of
the Article, for more than three (3) shifts or five (5)
working
days, as applicable, shall charge the absence to
accumulated
sick leave commencing on the first hour the
employee
was unable to report for work.
d. In the case of employees who are absent due to illness or
injury
for which they are receiving payment from State Indus
trial
Insurance, the Employer's obligation shall be limited
to
the difference between the employee's basic salary and the
amount
received from the State. Sick leave
shall be charged
on a
pro rate basis in such case until exhausted.
Section 3 Sick leave shall be granted for the following reasons:
a. Personal illness or incapacity of the employee;
b. Enforced quarantine of the employee by a public health official.
Section 4.
When an employee goes on sick
leave he must notify his supervisor
immediately. Failure to do so may result in denial of sick
leave
pay. The Chief or his designee may require
certification of the
employee's
condition by a physician upon the employee's return
after
the third sick leave absence in any calendar year.
Section 5.
No compensation for accrued
sick leave shall be paid at the
termination
of employment.
Section 6.
Sick leave shall not accrue
during leaves of absence without pay
or
layoffs.
9. The Arbitrator reserves jurisdiction to resolve any disputes
arising
over the implementation of this
Award.
Philip Kienast
December 18, 1979
Seattle
, Washington