INTEREST ARBITRATIONS

Decision Information

Decision Content

International Association of Fire Fighters, Local 315

And

City of Hoquiam

Interest Arbitration

Arbitrator:      Paul D. Jackson

Date Issued:   03/19/1980

 

 

 

Arbitrator:         Jackson; Paul D.

Case #:              02468-I-79-00065

Employer:          City of Hoquiam

Union:                IAFF; Local 315

Date Issued:     03/19/1980

 

 

 

IN ARBITRATION BEFORE PAUL D. JACKSON

 

In re:                                                                           )

THE CITY OF HOQUIAM, WASHINGTON         )

and                                                                              )           DECISION AND AWARD

INTERNATIONAL ASSOCIATION OF                )

FIREFIGHTERS, Local 315                                     )

 

Date of Hearing: February 14, 1980

Place of Hearing: Hoquiam, Washington

 

Representing City of Hoquiam:  Cabot Dow

                                                      Cabot Dow Associates

                                                      Seattle Trust Building

                                                      10655 N.E. 4th Street

                                                      Bellevue, WA 98004

 

Representing Local 315:             Larry R. Johnson

                                                      2407 Aberdeen Avenue

                                                      Hoquiam, WA 98550

 

Arbitrator                                     Paul D. Jackson

                                                      926 Lakeside Avenue South

                                                      Seattle, WA 98144

                                                      (206) 325-0650

 

 

BACKGROUND

      The City of Hoquiam is located in Grays Harbor County, Washington,

approximately 115 miles from the state's only metropolis, Seattle; 65 miles

from the State Capitol of Olympia; and immediately adjacent to the City of

Aberdeen with which it shares the Pacific port in Grays Harbor. Hoquiam has

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. Aberdeen, ranks 23rd in population

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 Union

representing Fire Department employees of the City. Their most recent agreement

was for two years and terminated on December 31, 1979. The City and the Union

commenced negotiations for a new agreement in July, 1979, in accordance with

Washington State Labor law. The parties held seven meetings up to September

24, 1979, when, arriving at an impasse, the Union requested mediation of 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 (Union's proposal)

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 U.S.

Department of Labor's Consumers Price Index for the Seattle Area-Urban Wage

Earners and Clerical Workers, from July '78 to July 1979; for the second six

months, the Union proposes an increase equal to whatever the percentage increase

is in the CPI from July 1979 to July 1980.

      Additionally, the Union demands a 1.5% across-the-board increase

as a "catch-up" payment towards the equalization of the salaries of Hoquiam

firefighters with those in other Washington cities which the Union believes are

comparable, and most particularly with its neighbor, Aberdeen.

      The Union also proposes a 2% premium immediately for all employees

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 January 1, 1981,

the Union demands that across-the-board increases be given based upon the total

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 Union proposes that there be another across-

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 Union for 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

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.