International
Association of Fire Fighters, Local 315
And
City
of
Interest
Arbitration
Arbitrator: Paul D. Jackson
Date
Issued:
Arbitrator:
Jackson; Paul D.
Case #: 02468-I-79-00065
Employer:
City of
Date Issued:
IN ARBITRATION BEFORE PAUL D.
JACKSON
In re: )
THE CITY OF
and ) DECISION
AND AWARD
INTERNATIONAL ASSOCIATION OF )
FIREFIGHTERS, Local 315 )
Date of Hearing:
Place of Hearing:
Representing City of
Cabot
Dow Associates
Representing Local 315: Larry R. Johnson
Arbitrator Paul
D. Jackson
(206)
325-0650
BACKGROUND
The City of
approximately
115 miles from the state's only metropolis,
from
the State Capitol of
a
population of approximately 10,400 and ranks 37th in that regard within the
State.
It is 23rd in per capita assessed valuation, and is dependent
principally
upon the wood products industry.
having,
in 1979, approximately 19,000 residents. It is a maritime and industrial
city
and also a residential and retail shopping center.
For 12 years Hoquiam has had a collective bargaining
relationship
with
Local 315 of the International Association of Firefighters, the
representing
Fire Department employees of the City. Their most recent agreement
was
for two years and terminated on
commenced
negotiations for a new agreement in July, 1979, in accordance with
24, 1979, when, arriving at an
impasse, the
Public
Employment Relations Commission. At the conclusion of
mediation six
Contract issues remained
unresolved. Arbitration is required by law in such
case
(RCW 41.56) and the undersigned was selected to be the Arbitrator.
ISSUES TO BE RESOLVED
1. Salary
2. Longevity pay (
3. Departmental changes
(City's proposal)
4. Grievance procedure (City's
proposal)
5. Seniority (City's proposal)
6. Duration and zipper clause
(City's proposal)
Issue No. 1 - Salary
The Union demands, for the first six months of the year 1980,
an
across-the-board
increase of 11.3% which is the percentage increase in the
Department of Labor's
Consumers Price Index for the
Earners and Clerical Workers,
from July '78 to July 1979; for the second six
months,
the
is
in the CPI from July 1979 to July 1980.
Additionally, the
as a
"catch-up" payment towards the equalization of the salaries of
Hoquiam
firefighters
with those in other
comparable,
and most particularly with its neighbor,
The
having
an EMT I (Emergency Medical Technician) Certificate. (24 out of 25
firefighters
in the unit have such certificate.)
For the second year of the contract, beginning
the
percentage
increase in the Consumers Price Index from July 1980 to November
1980,
plus an additional 2.5% across-the-board "catch-up" increase.
In July of 1981, the
the-board
increase based upon the percentage increase in the Consumer's Price
Index from November 1980 to
July 1981.
The total specifically ascertainable demand of the
first
half of 1980 therefore is for across-the-board increases of 14.8%. The
proposed
increase for the second half of 1980 is not known at this time but
based
on recent experience it could be an additional eight or nine percent.
Likewise, the total increases
demanded for 1981 are unascertainable but could
run
to over 17 percent based upon the past year's CPI experience.
The City's counter proposal for a two year contract is: For the
first
year, an 8% across-the-board increase plus a 1% premium payment to
holders
of an EMT Certificate. For 1981, the City proposes a 6% across-the-
board
increase, PLUS the percentage by which the Consumers Price index from the
period
July 1979 to July 1980 exceeds 9%. Thus, if the percentage increase
was
13%, the salary rise would be 10%.
Contentions
The Union's principal argument on behalf of
its demands are
founded
on the contention, first, that its members' economic position is
substantially
below than that of firefighters in comparable communities within
the
State of Washington, thereby justifying the "catch-up" increases of
4%
to
put them on a par with such communities, and, second, that a fair and
equitable
wage policy requires that the real income of the employees be
maintained
in the face of the unprecedented inflation and that this can only
be
achieved by raising salaries point by point with the increases in the
Consumers Price Index since that
index is an accurate reflection of the decline
in
the value of the dollar.
Additional justifications include the need for a special considera-
tion for these employees because of the greater
risk of death or injury on the
job;
the increase in service and productivity each year as demonstrated by
certain
tables showing the total "runs" of equipment from 1977 to 1979; the
greater
work pressures by the taking over of private ambulance service,
from
which time "runs", and responsibilities have greatly increased.
The Union contends that the increase of Hoquiam's assessed
property
values
per firefighter, from 1979 to 1980, was approximately $700,000 making
the
demands of the Union entirely feasible financially, inasmuch as for each
percentage
Point salary increase the cost to the City is below $6,000.
The Union also argues that there is a substantial differential
between
the hourly wages of skilled and non-skilled labor in private industry,
and
of other City employees of Hoquiam compared to the hourly wages of its
members,
showing for example, a senior firefighter to have an hourly wage of only
$5.62 (based on a 56 hour
week) as compared to a non-skilled worker whose
average
hourly wage (based on a 40 hour week) in 1979 was $7.95 or as compared
to a
Hoquiam longshoreman whose wage was $10.07 per hour; or as compared to
the
wages of a skilled laborer whose average wage was $11.83.
The Union asks the Arbitrator to note the difference between
the
hourly
wage of the firefighter compared to other Hoquiam City employees (who
work
40 hours a week) whose average wage is $7.51 an hour.
The City denies that there is any justification for
"catch-up"
salary
increases. There is wide disagreement between the City and the Union
as
to what are comparable cities which state law enjoins arbitrators to
consider
in reaching their award, but in any event it contends that its salary
levels
are competitive with other cities and the internal organization
of
the Hoquiam Fire Department and its special job classifications make its
salary
opportunities for senior firemen levels fair, reasonable and equitable.
The City states that, as a result of past increases, the
salaries of
its
firefighters have outpaced the rise in the Consumer Price Index during the
same
period and it rejects the Union's argument for "the indexing of
salaries"
with
the Consumers Price Index, pointing out that such an approach toward
achieving
fair salaries is not justified because the Index is purely hypothetical,
is
not applicable to the situation of any particular firefighter and national
economic
policy rejects as unwarranted and economically unsound indexing with
the
CPI as showed by the national voluntary guidelines and wage settlements
generally
throughout the country and within the State, which have a range
substantially
below the actual rises in the CPI.
The City states that the inherent risks attached to the job of
firefighter
have been recognized and compensated for by the special benefits
of
the firefighters' Collective Bargaining Agreement and their special health,
welfare
and pension benefits. With regard to comparisons based on hourly wages,
the
City rejects this also as an invalid argument, noting that the Union arrives
at a
purported 56 hour work week by totally ignoring the special characteristics
of a
firefighter's job which traditionally requires a 24 hour shift and
variations
thereof whereunder firefighters are obliged to remain
at the station-
house
on duty around the clock, which includes sleeping and attending to their
own
needs much of that time unless a fire emergency arises, and are engaged in
routine
regular work within a time frame of only eight hours, during the day.
Thus, according to the City,
the alleged 56 hour week referred to by the Union
and
made its benchmark for measuring other jobs is totally unrealistic and
misleading.
A major argument of the City, is that its counter proposal is
the
maximum
it can offer under anticipated revenues for 1980. The City is presently
taxing
at its authorized limits under state law. Estimated expenditures,
according
to the City budget, are already calculated to exceed anticipated
revenues
due to personnel related costs which have continued to exceed
projections
as a result of recent contract negotiations.
This "inability to pay" argument was supported with
the introduction
of
the City's 1980 budget based upon a projected 7.5% across-the board salary
increase
for firefighters.
The "inability to pay" argument is rejected by the
Union, princi-
pally on the grounds that actual experience over
the past several years has
shown
that the City, each year has continued to have ever larger end of year
surpluses
appropriated as a revenue for current year expenses, from 6.2% in
1978
to 14.1% in the current year. The current surplus is almost
$300,000.00.
This was possible because
revenue exceeded expenses because of the conser-
vative estimate of revenues. For the year 1979
receipts exceeded estimates
by
over $200,000.00. At the end of 1979 there was an unencumbered, unspent
balance
of $84,229 for all departments. Both long and short debt of the
city
was substantially reduced in 1979.
Discussion, Findings and Award
The arbitrator, by State law, is required in contract
arbitrations,
to
take into consideration certain facts in arriving at an award affecting a
municipality
and its uniformed employees (RCW 41.56.460).
None of the factors required by law to be considered including
a
comparison
of "comparable" cities, are mandated to be controlling or pre-eminent
in
the arbitrator's ultimate conclusions. The weight he gives to various
factors
is a subjective determination, of which, certainly of primary
importance
is the validitity of the economic data and arguments
presented
and
their relative pertinency to the case at hand.
Of immediate interest in applying the statutory mandate is the
circumstance
that the parties themselves have not been able to agree upon
"comparable
cities"; note is made also of the fact that no city outside of
the
State of Washington was compared although the statute would go beyond
the
State for comparison purposes. These comments are motivated by the
importance
placed by the parties on this item of consideration and by the Union's
demand
for 4% across-the-board "catch-up" increases. The Union particularly
urged
upon the Arbitrator the need for comparison with the City of Aberdeen.
The law speaks of "cities and counties respectively of
similar size"
but
does not define "size". Arbitrators have frequently defined it in
terms of
population
which is one reasonable approach, although population size may be
less
relevant than other kinds of sizes. Thus "size" may mean the area
covered
by
cities within their fire control jurisdiction; or the size of the tax base, inclu-
ding
total property valuations and sales, excise and other tax sources, which in
turn
make pertinent other factors such as the nature and character of the cities
themselves,
including whether they are inland or maritime, industrial, agricultural,
commercial
or primarily residential. These considerations may greatly affect
the
support given a city's fire department, its productivity, the services
required
of it and the city's ability to pay. To determine whether the employees
in
this instance are at a salary disadvantage compared with those of comparable
cities
this Arbitrator, has selected his own list of "comparable cities",
and not
only
with regard to population size but also considering the overall charac-
teristics of the cities selected and their financial
resources. Aberdeen is
included,
not because it is comparable but because the Union urges that Hoquiam's
salaries
should equal Aberdeen's.
__________
CITY POPULATION PER
CAPITAL LAND AREA POPULATION
ASSESSED VALUE & SQ
MI. PER SQ. MI.
Aberdeen 19,075 14,515 10.0 1908
Anacortes 8,870 20,000 7.4 1199
Hoquiam 10,400 15,219 3.8 2737
Kelso 10,925 9,446 6.0 1821
Mt. Vernon 12,600 16,131 6.6 1909
Shelton 7,020 15,608 3.9 1800
(Employer's Exhibit 11-1980
Citizens Guide to Local Government-Washington
State-Research Council,
10/15/79)
__________
Of the above cities, all of them, (except Aberdeen) are within
six places above or
below
Hoquiam in population size on the complete list of Washington cities.
Several cities closer in
population size have been omitted because of substan-
tial differences in the nature and character of
the city, topographically and
demographically.
__________
1977 CITY REVENUES (Amounts in
thousands)
CITY GENERAL
PROPERTY TAX TOTAL
Aberdeen 658.2 4,636.2
Anacortes 627.7 2,124.4
Hoquiam 503.2 2,358.2
Kelso 295.7 2,153.7
Mt. Vernon 548.2 2,412.3
Shelton 298.9 1,175.6
_____
1979 BUDGET EXP. 1979 MO. SALARY
CITY FOR FIRE CONTROL FOR FIREFIGHTER POLICE OFFICER
Aberdeen $1,028,948 $1,536 $1,419
Anacortes 468,147 1,351 1,314
Hoquiam 486,909 1,366 1,325
Kelso 412,505 Unav. Unav.
Mt.
Vernon Unav. 1,292 1,259
Shelton 212,731 1,160 1,150
__________
In reviewing the above tables above, note should be made of
Shelton's
position
which shows a tax base of approximately one-half of the other cities,
and
of its substantially lower salary scale. Also noteworthy are the revenues
of
Aberdeen compared to the other cities. The 100% difference is attributable
in
part to the fact that it is a commercial center as well as an industrial
city
and its sales tax revenues greatly exceed the other cities. The budget
of
Aberdeen's Fire Department is more than twice that of the other cities; the
population
is almost that much greater.
With regard to the four other cities to which comparison has
been
made,
another factor has been urged by Hoquiam in support of its position that
its
firefighters are reasonably and fairly compensated, that is, the circumstance
that
Hoquiam has a special firefighter classification of "Driver" the
salary
for
which in 1979 was $1,434 per month. Twelve of a total of 18 journeymen
are
Drivers and this position is available after three years in the Department
by
passing a test, and positions are assigned by seniority. None of the other
cities
above (excluding Aberdeen) has this classification. Therefore, two-
thirds
of the firefighters of Hoquiam can progress to a salary considerably
above
the base firefighters salary of the comparable cities.
Examination of all of the evidence submitted by the parties,
and
careful
consideration of their contentions leads to the writer to conclude that
the
salaries of Hoquiam firefighters are not grossly disporportionate
to those
of
comparable cities.
Aberdeen is not deemed a "comparable" city. It is
next door to
Hoquiam and it shares jointly
in firefighting control by virtue of written
agreement.
A top journeymen firefighter's monthly salary for Aberdeen in 1979
was
$1,536 (Employer's Exhibit No. 14). The journeyman salary in Hoquiam was
$1,366.
However, proximity of cities does not, ipso facto, justify equalization
of
their employees' salaries with neighboring cities. For example, of eight
cities adjoining
Seattle, all of them had firefighters salaries ranging from
$45 to $89 a month below that
of Seattle and in one case, a much smaller
city
had a salary $72 per month higher than Seattle. (Employer's Exhibit
No.
13-1979 Survey of Washington State Council of Firefighters).
There are a
multitude
of valid reasons why salary rates may justifiably differ among
communities
within reasonable limits.
Comparison of firefighters salaries
with those of other workers
in
municipal or private industry, on an hourly rate basis is not instructive.
The special shift practices
and duties in fire control departments, the
provisions
pertaining to the vacations and offday benefits, plus
security of
employment
and other distinctions too well known to require elaboration make
this
conclusion inevitable. That firefighter jobs are considered competitive
with
other kinds of jobs in private industry is demonstrated statewide by the
small
turnover of jobs and the large number of applicants for them. In Hoquiam
for
example, 16 firefighters out of 24 have 10 to 30 years seniority; 7
have 3
to 9 years in the Department. There are practically no voluntary
resignations
or quits in this industry. In terms of annual salaries these
employees
compare favorably with other city workers.
Absence of a finding of substantial inequality in wage scales,
with
comparable cities of Hoquiam's size or with other skilled jobs and trades
removes
consideration of the "catch-up" increases of 4% proposed by the
Union.
We must next consider the Union's proposal for across-the-board
salary
increases of 11.3% for the first half of 1980. With regard to the
argument
of the Union that cost of living increases should equal the increases
in
the CPI to maintain the standard of living and equality with other workers
and
unions, it is noted that many, if not most collective bargaining agree-
ments do not provide automatic adherence to
increases in the CPI. What
relationship
salary scales and changes have to the CPI depends upon the
particular
circumstances in each case such as the trend of negotiations within
the
industry elsewhere vis-a-vis the CPI; the increases
negotiated by the
employer
with other unions; the approach taken to the CPI in prior contracts;
the
time lag between the index and the effective date of the increases and
national
wage policy. It is noteworthy that this policy has set voluntary
limits
in industry well below the increases in the CPI. Hoquiam is known to
have
settled its 1980 agreements with certain other unions and employees for
a
9.5% across-the-board increase over 1979 salary rates. According to
testimony,
within the past six months, 15 cities on the west side of the
Cascades from Seattle and
Tacoma to Shelton and Kelso have settled with their
firefighters
for increases ranging from 8% to 12.9%. These settlements,
however,
are meaningless in the absence of detailed knowledge of the negotia-
tions and of the terms of the contract, the full
rationale for the percentages
used
and particularly the exact monthly indices used to calculate the percentage
rise
in the CPI.
The City has offered, for the year 1980, an 8% across-the-board
increase;
it has additionally proposed a new premium payment of 1% to holders
of
EMT Certificates. Such certificate is held by 99% of the firefighters.
Procurement of such
certificate requires some study and training but no more
onerous
in time than the training generally incumbent upon an apprentice
firefighter.
The City thus views its total offer as actually being a proposal
of
9% across-the-board.
In proposing the new premium of 1% for the certificate, the
City
testified
that 8% was a fair general salary increase, and it preferred to
give
any additional compensation for special effort or skills.
The writer observes that there has been no showing by the City
that
a
monetary incentive was necessary to encourage firefighters to obtain an EMT
Certificate in the past,
particularly now when ambulance driving has been taken
over
by the Department and it is a desirable duty which requires such a
certificate.
Since, according to testimony, Hoquiam has already granted
other
employees a
9.5% increase across-the-board, no acceptable reason has been offered
which
would gainsay an increase to its firefighters of at least as much unless
the
City's "inability to pay" argument is valid. According to the City's
testimony,
each 1% increase in Fire Department's salaries increases the budget
by
$6,000. Left over from last year was a surplus of almost $300,000; testimony
shows
that the City has had a surplus left over each year for some years, and the
surplus
increases each year.
The Union salary demand for 1980 was predicated upon the
Seattle
Consumer Price Index
percentage increase between July 1978 and July 1979 of
exactly
11.3%. The Union's demand was made in the context of RCW 41.56.440,
the
law requiring uniformed personnel and public employers to commence
negotiations
at least five months prior to submission of the budget to the City
Council.
Thus, at the time of the commencement of these negotiations, the
July 1979 index was the latest
available. Since then, this nation has suffered
an
inflationary trend the likes of which have not been known before. The CPI
in
November 1979, the last pertinent index prior to Jan 1, 1980 when the
new
Agreement commences, shows a remarkable increase over the index of July
1978
of 16.2%. The time lag between the start of
negotiations as required by
law
and the effective date of the Agreement has never before resulted in such
a
large cost of living deficit and the writer feels that consideration must be
given
to this unusual circumstance.
The writer has arrived at a different formula than that
advanced
by either side; it is based upon what the City has proposed as an
appropriate
equation between the rise in the Consumers Price Index and cost
of
living, and a reasonable across-the-board increase.
The City has stated that an appropriate salary increase for
1981,
the
second year of the contract, would be 6% plus the percentage by which the
CPI exceeds 9%. This offer, by
the way, was in addition to the 1% already
offered
for the premium. Accepting the City's formula, but applying it
to
1980 because the writer does not see why the rationale is not equally
applicable
for that year, and using the 16.2% increase in the CPI between
July 1978 and November 1979,
the last index prior to the commencement of the new
Agreement in order to lessen
the lag in pay adjustments, the increase is
calculated
as follows:
6. % (Basic minimum increase across-the-board)
+7.2%
(the excess increase in the CPI over 9%)
Total
13.2%
Accordingly, for the entire year effective January 1, 1980 the
writer
finds that the salary increase shall be 13.2% rounded to the nearest
dollar.
No salary reopener for midyear 1980 is awarded.
It will be noted that the awarded increase is almost identical
in
its
formula approach as the City's increases to other employees in 1980. The
9.5% increase by the City is
84% of the increase in the CPI, July 1978-July
1979. The increase granted
here is 81.5% of the July 1978-November 1979 CPI
rise.
The differential is deemed warranted. First, because the rationale
adheres
strictly to a formula approved by the City, and second, because the
Fire Department gets the full
benefit of the CPI raise 12 months before other
city
employees.
The contract between the parties shall be for two years
terminating
December 31, 1981. The
contract shall be reopened for salary negotiations only
for
the year 1981, all other terms remaining the same. No effort is made here
to
determine a fair increase for 1981 because recent events have shown the
impossibility
of predicting that far ahead, what economic conditions will be
when
the parties conclude their 1981 negotiations.
There will still be a lag in keeping up with the inflating
index at
the
start of the 1981 contract but it will be minimal as compared to the
existing
lag which the writer believes is unnecessary and unfair under present
economic
conditions.
Issue No. 2 - Longevity Increases
Contentions
The Union has proposed longevity increases of $25 per month for
every
five years of service up to a maximum of $100 after 20 years of continuous
service.
This demand constitutes a reinstatement of longevity pay into the
collective
bargaining agreement notwithstanding the fact that in 1975 this
benefit
was negotiated out of the contract and only the then-employed fire-
fighters
continued to receive the "same amount of longevity pay" they were
then
receiving "for as long as they remained continually employed in the Fire
Department."
18 out of 25 unit employees were thus "grandfathered in" to
longevity
pay at that time. At the present time 14 out of 25 are receiving
such
longevity pay. The Union contends this condition is inequitable and devisive
within
the Department, and that longevity offers the only kind of salary
progression
in the Department and rewards loyalty.
The City contends that length of employment has little
relationship
to
improvement of skills or performance and there is no justification for
returning
to a rejected formula. Moreover, the City asserts that the higher
paying
classification of "Driver" which is open to all journeymen offers
an
incentive for promotion and salary increase. The evidence shows that
about
50% of the State's fire departments have longevity pay. Most of these
do
not have the driver classification.
Discussion, Findings and
Award
The writer concurs with the argument that both parties, in
their
joint
wisdom, eliminated longevity pay in the give and take of collective
bargaining
in 1975. One party should not now resurrect this premium. At
the
least, a longer period of time is needed to evaluate the effects of
the
recent change. Moreover, justification for longevity pay is weakened
where
there are opportunities for increasing earnings and promotion as
here.
As for the argument based on inequity and devisiveness
within the
department
because of those previously "grandfathered" with longevity pay,
when
the Union agreed to terminate this premium, it was aware of the fact
that
junior employees would be at a salary disadvantage compared with the
senior
employees, and this fact cannot now be raised as a new argument
to
reinstate the eliminated benefit.
As for the contention that longevity pay rewards loyalty and
ensures
minimal
turnover of employees, experience has shown that fair basic
salaries
and good working conditions better motivate these objectives.
Issue No. 3 - Departmental Changes
The City proposes to delete Article XIV of the present contract
providing:
"Before any permanent
changes are made in basic policy, they will be
submitted
to the Union prior to the change and discussed with the
Union representative, if he
notifies management in writing of his
desire
to do so."
Contentions
The City asserts that the Article recently has been given an
undesirable
and unexpected impact upon management's exercise of its traditional,
lawful,
discretionary powers and responsibilities to make day to day departmental
executive
decisions and that this Article as now interpreted permits unwarranted
grievances,
by the Union, allowing arbitrators to "undermine" management's
ability
to protect the effectiveness, efficiency and quality of fire control
service.
The recent decision of the Public Employment Relations Commission,
number
745EECV (Case No. 1017-U-77-134), the City urges, raises this concern.
In that case, the Union charged
the City with unfair labor practices for failure
to
comply with Article XIV by not first negotiating with it when the City
abolished a
vacant captain's position, covered it with a lieutenant's rating
and
assigned work to that position which previously had been performed by the
captain.
The examiner for the State held that there was "no specific provision
of
the contract giving it (the City) the right to reallocate job duties
among
classifications"
-- and that the so-called management rights clause in the
agreement
was not specific enough to justify its unilateral action. (Emphasis
added)
The Union states that while Article XIV is only a "meet
and confer"
clause
that does not affect its legal right to demand negotiations on all
changes
of "working conditions" by the employer, and in the case in question
before
PERC the action of the City affected "Wages and working conditions"
and
was a
legally mandatory subject for bargaining. The Union had sought arbitration of
the
grievance which would have raised the issue of jurisdiction and the nature
of
the change and the City's authority in that regard, under the "management
rights"
provisions but the City rejected this.
Discussion, Findings and
Award
Without addressing the issue raised in the PERC case cited
above,
which
attempted to interpret and apply Article XIV in the context of the labor
laws
of the State of Washington applicable to public employees, it is obvious
that
the vague phrase "basic policy" is at the root of the dispute.
The City's concern is that by outside state agency, judicial or
arbitral
intervention, the powers which it had reserved to itself to manage its
daily
affairs generally set forth in Article XXI of the Agreement pertaining
to
"management rights" will be eventually totally eroded and that in the
future
operation
of the Department may devolve upon a bilateral commission or third
persons.
To avoid the possibility of such contretemps, the writer is of
the
opinion
that Article XIV should be clarified and made more definite and certain
if
possible, and therefore an additional sentence shall be added to it as
follows:
"By 'basic policy' is
meant any departmental rule, regulation or
management
practice pertaining to matters not specifically covered
by
this written agreement or reasonably and unavoidably derived
therefrom. Discussion with the Union representative
does not require
agreement
with the Union before a change in 'basic policy' may be
implemented.
Should a dispute arise pertaining to the application
and
interpretation of this Article, or the effectuation of any such
change
by management, the matter shall be taken up immediately through
the
grievance procedures of this Agreement, to arbitration if neces-
sary, within the shortest allowable time, and
the Arbitrator's decision
shall be
final."
Issue No. 4 Grievance
Procedure
The first paragraph of Article XIX of the present Agreement
covering
grievances
provides:
"Grievances or disputes
which may arise, including the interpretation
of
this agreement, shall be settled in the following manner:"---
Discussion, Findings and Award
The City proposes that the word "including" be
changed to "involving".
The intent of the City is
understood by the Union. The present language permits
all
disputes of any kind, whatsoever their origin or basis, regardless of their
relationship,
if any, to the collective bargaining agreement, to proceed to
grievance
and ultimately to arbitration. It is possible under the present
language
for the Union to dispute with the City or the supervisors of the Fire
Department, proposals or
actions which clearly are not matters addressed by the
collective
bargaining agreement or within its purvue, nor, for
that matter,
statutorily
mandated for bargaining.
In short, the paragraph as presently written makes every action
or decision
by
management however lawful and proper, subject to the delays, expense and
hazards
of arbitration, whenever the Union chooses to dispute them.
Admittedly such extreme situations may not occur, but the
danger
is
present under the existing language.
The source of a labor arbitrator's authority, except where
otherwise
specifically
expanded by the arbitration clause of the contract, is limited to
the
collective bargaining agreement of the parties. This proposition is usually
expressed
as "authority to interpret and apply the agreement of the parties."
The City, by its proposal,
desires to assure this objective in the interests of
stability
and efficiency in its operation of the department. The Union, of
course,
desires to keep all existing options open, thereby strengthening its
bargaining
leverage. It further argues that in the absence of a "prevailing
rights"
clause in the agreement it needs the present language of this article
to
prevent the employer from diminishing established benefits and perquisites
which
may not be specifically mentioned in the contract but are recognized
through
customary practice.
The writer agrees with the proposal of the City as a reasonable
step
in making the agreement the basic reference in disputes, grievances and
arbitration,
and believes that the concerns of the Union can be met by appro-
priate language. His decision is in accord with
the great majority of labor
agreements.
The first paragraph of Article XIX shall be amended to read as
follows:
"Grievances or disputes
which may arise involving the interpretation
or
application of this agreement, (including established custom or
practice
of benefit to the employees, and initiated by the Department)
shall
be settled in the following manner --"
Issue No. 5 - Seniority
The expiring agreement contains the following seniority
provisions:
"The City recognizes the principle of seniority and time
in the
Department shall be given
utmost consideration in layoffs, call-
backs
and promotions.
In the case of personnel reduction the employee with the least
seniority
shall
be laid off first and called back last. NO new employees shall
be
hired until all laid off employees have been given the opportunity
to
return.
When a driver position is open only those employees who have
passed
the
competitive examination for Driver will be eligible to bid for the
position.
Such position shall be filled on the basis of seniority sub-
ject to a one year probationary period to
establish competency."
The City proposes new language as follows:
"The City recognizes the principal of qualified seniority
and time in the
Department shall be given
utmost consideration in lay-offs and recall.
Promotions shall be governed
by Civil Service rules and regulations.
In the case of personnel reduction the employee with the least
seniority
shall be laid-off first and called back last. No new
employees
shall be hired until all laid-off employees have been given
the
opportunity to return.
When a driver position is opened, examination for driver will
be subject
to the
promotional procedures of the Civil Service Commission. Such
position
shall be filled accordingly and the assignment of qualified
employees
shall be made by the Fire Chief, subject to a one-year pro-
bationary period."
Contentions
The City's position on this proposed change is best expressed
in its
Exhibit 25, a position paper,
stating:
"The Fire Chief must have the right to assign employees to
the 'driver'
position
in the bargaining unit by ability as opposed to by seniority.
The current labor agreement
provides that seniority will be given the
utmost
consideration in lay-offs, call backs and promotions. However,
nothing
in the agreement provides that the City will give seniority
the
utmost consideration in assigning employees to specific jobs within
the
bargaining unit. Seniority clauses of the kind being defended by
the
Union are generally void in any other firefighter labor agreements
in
cities of similar size as far as the City knows. The employer
is
agreeable to lay-offs and recall provisions subject to the
employee
being physically qualified to do the job upon recall.
Promotions are normally a
Civil Service matter and should be excluded
from
the contract. Examinations for driver category and their pro-
motional
procedures should be Civil Service matters and assignments
of
driver category to specific equipment will be made by the Fire
Chief who is responsible for
the administration of personnel matters
and
the assignment of personnel within the Fire Department.
The City risks extensive liability in running heavy and
sophisticated
pieces
of fire equipment and feels that it must determine who is
assigned
to such equipment and best qualified for the assignment to
'driver'
duties and responsibilities.
While the following language represents a compromise on the
part of
the
City, the specific language being proposed by the City is as
follows:---"
In further elaboration of its position with regard to the third
paragraph
of the existing clause the City testified that competitive examination
only
is not sufficient and that it must have the same authority granted management
under
Civil Service procedures which are presently applicable to all other fire
fighting
jobs. It would substitute the new Civil Service rules and regulations
recently
adopted by the City for the present contractual ones set forth in the
agreement
governing selection and promotion, particularly to the driver
positions.
Under the agreement the City must promote the senior person who has
passed
the examination. Under the new Civil Service procedures the Department
would
be able to select any one of the top three individuals without regard to
seniority.
The Union states that its principal concern is with respect to
selection
and promotions of drivers and that this classification has never been
under
Civil Service regulations or procedures and that there is no reason to
place
it there at the present time. Further, it states, Hoquiam only recently
passed
the new Civil Service ordinance which management seeks to implement by
its
changes, and there are no guidelines or experience at present in applying
the
so-called "rule of three". Possibilities of discrimination or
chicanery
under
the City's proposal would exist thus vitiating the principles of seniority
for
which the Union has fought. Under existing regulations there is no provision
requiring
written justification for passing over the senior man. Therefore,
the
Union proposes, in substitution of the City's third paragraph the following
provision:
"When a Relief Driver
position is open, an examination shall be given
for
the purpose of establishing a promotional list for that position.
The individual with the
highest score to be promoted to that position,
subject
to a probationary period, under supervision, to establish
competency.
When a Driver position is open, Drivers, and Relief Drivers
shall
be
allowed to bid on that position. The individual with the greatest
seniority
shall be promoted to that position."
Discussion, Findings and Award
The Arbitrator concurs in the use of the Civil Service procedures
which
are applicable in initial selection for other positions in the Fire
Department of the City of
Hoquiam and believes that these procedures should be
equally
applicable to all promotions including that of Driver which is a higher
paying
journeyman position occupied by two-thirds of all of the firefighters.
This should also be the
process in the initial selection of Relief Drivers.
Thereafter, promotion to a
regular Driver's position should be by bid and
seniority
since the competence of Relief Drivers from whom the selection is
made
should have already been determined by the experience of the Department with
the
work of the Relief Driver. In the case of questions of possible physical
or
other disability of a Relief Driver to fill a regular position, the Union
should
have an avenue to pursue should it dispute the action of the Department.
Accordingly, Article XXX, Seniority, shall be revised as
follows:
"The City recognizes the principle of seniority and time
in the
Department shall be given utmost
consideration in layoffs, call-backs
and
promotions.
In the case of personnel reduction the employee with the lease
seniority
shall
be laid off first and called back last. NO new employees shall
be
hired until all laid off employees have been given the opportunity to
return.
When a 'Relief' Driver position is opened, examination for
'Relief'
Driver will be subject to
promotional procedures of the Civil Service
Commission.
Such position shall be filled accordingly and the assign-
ment of qualified employees shall be made by the
Fire Chief, subject
to a
one-year probationary period. Should the senior employee of the
top
three who have passed the competitive examinations not be selected
for
promotion, the Chief shall set forth his reasons in writing for
his
actual selection and deliver a copy to the Union representative.
Disagreement by the Union,
with the Chief's action shall be subject to
grievance
and arbitration.
When a Driver position is open, Drivers, and Relief Drivers
shall be
allowed
to bid on that position. The individual with the greatest
seniority
shall ordinarily be promoted to that position. If this is
not
done, the procedures for grievance and arbitration shall be
considered
immediately invoked, unless waived in writing by the Union."
Issue No. 6 - Entire Agreement (zipper) Clause
The City has proposed the inclusion of a new provision in
Article
XXXII - Duration, as follows:
"Section
2. (New)
This agreement expresses the entire agreement between the
parties.
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
understandings
and agreements arrived at by the parties after the
exercise
of that right and opportunity are set forth in this agreement.
Therefore, the City and the
Union, for the life of this agreement, each
voluntarily
and unqualifiably waives the right, and each agrees
that
the
other shall not be able to bargain collectively with respect to
any
subject or matter not specifically referred to or covered in this
agreement,
even though such subject or matter may not have been within
the
knowledge or contemplation of either or both of the parties at
the
time that they negotiated or signed this agreement."
Contentions
The City's contention is that the proposed provision is
necessary
to
ensure that it will not be subject to continuing demands by the Union during
the
life of the agreement, on matters which were not resolved or taken up in
the
negotiations proceeding agreement or with respect to alleged "verbal
promises"
or " implied contracts".
In view of the existing Article XIV - Departmental Changes
(discussed
above)
and PERC's interpretation of the contract, the City
believes it requires
the
protection of the proposed clause to place it on an equal plane with the Union
in
collective bargaining. It feels it is now at a disadvantage
The Union contends that no zipper clause is necessary and that
in
any
event the one proposed by the City far exceeds by its restrictions, the few
such
clauses which do exist in the industry. It contends that in its 12 year
relationship
with the City of Hoquiam very few situations have arisen which
would
have necessitated the application of such a zipper clause to protect the
City.
Discussion, Findings and Award
In the decision herein, the writer has made changes including
those
to
Article XIV, in an effort to give stability to the collective bargaining
relationship
during the life of the contract and to clarify the extent of the
obligation
to bargain during the contract term. No zipper clause, however
written,
can prevent the Union from demanding negotiations in mid-contract if it
perceives that
the employer is diminishing the benefits and prerogatives of its
members
during the term of the contract. It will proceed through grievance
procedures
if it believes that the contract itself, written or implied, is being
violated
or it will proceed through state agencies or in the courts if the City
refuses
to bargain on what it perceives to be a mandatory subject of bargaining,
which
has not been an actual subject for bargaining in the negotiations. The
value
of such clause, if challenged, is in doubt also. See Unit Drop Forge,
171
NLRB #73, 68 LRRM 1129 (1968).
For these reasons, and because of the writer's misgivings
concerning
the
stabilizing value of the proposed change, the inability thoroughly to analyze
the
effect of such change, absent more information, and with the observation
that
to date the parties have had very few pertinent situations in 12 years,
the
City's proposal is not adopted.
With regard to the duration of the agreement Section 1 of
Article II
shall
be revised to read as follows:
"This agreement shall be
in effect from January 1, 1980 until
December 31, 1981; however,
the salary scale for all employees,
for
the second year of the agreement which commences January 1, 1981
shall
be open for negotiations at the appropriate time. Either party
wishing
to amend or modify this agreement or open it or commence
negotiations
on wages for the year 1981 must notify the other party
in
writing no sooner than six months or later than five months prior
to
the filing of the preliminary budget for that year. Within 10
days
of receipt of such notification by either party a conference
shall
be held between the City and the negotiation committee for
the
purpose of amendment or modification."
SUMMARY OF AWARDS
1. SALARY
A 13.2% across-the-board
general salary increase effective
January 1, 1980. Wage reopener for the year 1981.
2. LONGEVITY PAY
Maintenance
of the present provisions with no change.
3. DEPARTMENTAL CHANGES
A clarifying addendum of
Article XIV defining "basic policy"
and
restricting disputes in application and inter-
pretation to arbitration.
4. GRIEVANCE PROCEDURE
Amendment
to Article XIX.
5. SENIORITY
Amendment
to Article XXX.
6. ENTIRE AGREEMENT (Zipper Clause) and DURATION OF AGREEMENT
No addition of a "zipper
clause".
A two year agreement with
reopening on salaries only for the
year
1981.
Dated: 3-19-80 PAUL D. JACKSON, Arbitrator