INTEREST ARBITRATIONS

Decision Information

Decision Content

International Association of Fire Fighters, Local 2221

And

Pierce County Fire District No. 9

Interest Arbitration

Arbitrator:      Phillip Kienast

Date Issued:   12/18/1979

 

 

Arbitrator:         Kienast; Philip

Case #:              02194-I-79-00060

Employer:          Pierce County Fire District 9

Union:                IAFF; Local 2221

Date Issued:     12/18/1979

 

 

            IN THE MATTER OF ARBITRATION

           

PIERCE COUNTY FIRE                              )

DISTRICT #9 (Summit)                                )           OPINION AND AWARD

                                                                        )                       of

                                                                        )           Philip Kienast

            and                                                      )           December 18, 1979

                                                                        )

                                                                        )           RE:     Interest Arbitration

INTERNATIONAL ASSOCIATION          )                       on 1980 Contract

OF FIRE FIGHTERS, LOCAL                    )

2221                                                                )

________________________________        )

           

 

APPEARANCES

 

For the Union:

 

            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 Washington State Public Employment

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

November 15, 1979 and the record in this matter closed upon their

receipt by the Arbitrator on November 17, 1979.

 

            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, Union and Employer

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 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 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

Washington against strikes by uniformed 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.  [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 Union's, indicate some

uncertainty as to the decision rules that shall be applied by the

Arbitrator in determining the issues in dispute.  In particular the

Union notes in its post hearing memorandum:

 

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 Union entered

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 Union's attention to his

Award in the matter of interest arbitration between City of Yakima and

IAFF Local 469 (January 30, 1975) in which he affirmed the Union

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

Union introduced no significant evidence in the record of this pro-

ceeding to document this assertion.  While the Union may have cause

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 Union believes its members work harder or

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

 

Parkland         ($l,376)            $1,560             6%                  $95                  None               9

 

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

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