And
City of
Interest Arbitration
Arbitrator: Howard S. Block
Date Issued:
Arbitrator:
Block; Howard S.
Case #: 03642-I-81-00083
Employer:
City of
Date Issued:
ARBITRATION OPINION AND AWARD
In the Matter of Arbitration
)
)
Between )
) Issues: Contract Terms
CITY OF
)
and )
)
LOCAL 1604, INTERNATIONAL )
)
ASSOCIATION OF FIRE )
FIGHTERS, AFL-CIO, CLC )
)
Impartial Arbitrator
Howard S Block, Esq.
1226 North Broadway
Hearing Held
March 16, 17 and 18, 1982
City Hall
Appearances
For
the
Durning, Webster & Lonnquist
For
the City: J. David Andrews,
Esq.
Nancy
Williams, Esq.
Perkins,
Coie, Stone, Olsen ~ Williams
1900
Seattle,
TABLE OF CONTENTS
Preliminary
Observations...........................................................................................................................1
Statutory
Criteria................................................................................................................... 3
Comparative
Cities................................................................................................................ 6
Monthly Salaries- Appendix
A............................................................................................. 11 Proposals of the
Parties........................................................................................... 11
Positions
of the Parties............................................................................................. 11
Opinion
of the
Arbitrator............................................................................................ 13
Award.......................................................................................................................... 17
Cost-of-living Adjustment -
Appendix
A............................................................................ 18
Proposals
of the Parties............................................................................................ 18
Positions
of the
Parties.............................................................................................. 18
Opinion
of the
Parties............................................................................................... 18
Opinion
of the
Arbitrator............................................................................................. 19
Award ........................................................................................................................... 21
Hours of Duty - Article
XII...................................................................................................... 22
Proposals
of the Parties............................................................................................. 22
Positions
of the
Parties.............................................................................................. 22
Opinion
of the Arbitrator............................................................................................. 24
Award........................................................................................................................... 26
Vacation Leave - Article
XVII................................................................................................ 27
Proposals
of the
Parties............................................................................................. 27
Opinion
of the Arbitrator............................................................................................. 27
Award ........................................................................................................................... 28
Insurance Coverage (Medical~Dental)
- Article
XXVII........................................................ 29
Proposals
of the
parties.............................................................................................. 29
Positions
of the Parties............................................................................................... 30
Opinion
of the
Arbitrator.............................................................................................. 31
Award .
......................................................................................................................... 32
Disability Leave and Sick Leave for
Employees
Hired on or after
Proposals
of the Parties............................................................................................. 33
Positions
of the
Parties............................................................................................... 33
Opinion
of the Arbitrator.............................................................................................. 35
Award............................................................................................................................ 35
Longevity
(Union Proposal) versus Performance
Recognition Program (City
Proposal)................................................................................
36
Proposals
of the
Parties..............................................................................................
36
Positions
of the
Parties................................................................................................
36
Opinion
of the
Arbitrator...............................................................................................
37
Award.............................................................................................................................
38
TABLE
OF CONTENTS (continued)
Communication Procedure -
Article XXV...............................................................................39
Proposals
of the
Parties.................................................................................................39
Positions
of the Parties...................................................................................................39
Opinion
of the
Arbitrator..................................................................................................40
Award................................................................................................................................40
Prevailing Rights Article
XX.....................................................................................................41
Proposals
of the Parties.................................................................................................41
Positions
of the
Parties...................................................................................................41
Opinion
of the Arbitrator..................................................................................................44
Award................................................................................................................................46
Reduction and Recall -
Article VII...........................................................................................47
Proposals
of the
Parties.................................................................................................47
Positions
of the Parties..................................................................................................47
Opinion
of the Arbitraor..................................................................................................48
Award...............................................................................................................................50
Award Sumary.............................................................................................................................51
Exhibit A.......................................................................................................................................54
PRELIMINARY
OBSERVATIONS
This arbitration
Proceeding arises out of
an impasse in
negotiations
between the City of
hereinafter
referred to as "City") and the
Local 1604 (sometimes hereinafter referred
to as "
conducted
pursuant to Chapter 41.56 RCW (Joint Exhibit 1).
The Union and
the City are
parties to a Collective
Bargaining Agreement which expired on
December 31, 1981 (Joint
Exhibit 2). The parties commenced bargaining in Summer, 1981 for
a
new labor agreement covering approximately 90 bargaining unit
employees
in the City's Fire Department. They
reached impasse on
a
number of issues and the Union invoked the provisions of RCW
41.56.430 et seq. for binding arbitration to
resolve the impasse
on
these issues. Several issues were settled by the parties
immediately
prior to
or during the
hearing. The unresolved
issues submitted for
decision in this
proceeding are the
following:
1. Monthly
Salaries--Appendix A.
2. Cost-of-living
Adjustment--Appendix A.
3. Hours
of Duty--Article XII.
4. Vacation
Leave--Article XVII.
S. Insurance
Coverage--Article XXVII.
6. Disability Leave and
Sick Leave for
Employees
Hired
On or After October 1, 1977- -Article XXVIII.
7. Performance Recognition Program --Article X and
Appendix B.
8. Longevity--New
Section.
9. Communication Procedure (Labor~Management
Committee)--Article XXV.
10. Prevailing Rights--Article
XX.
11. Reduction
and Recall--Article VII.
The parties waived
the tripartite arbitration panel and
selection
procedures provided in RCW 41.56.450 and agreed to
submit the foregoing issues to Impartial Arbitrator Howard S.
Block, serving as sole Arbitrator, with all
powers and duties of
an arbitration
panel under the statute.
A hearing was held
before
the Arbitrator on March 16, 17 and 18, 1982, at which time
all parties
concerned were given a full opportunity to present
evidence and argument
bearing on the
issues. Each party
concluded
its case with the filing of a Closing Brief on May 7,
1982.
At the Arbitrator's request, the parties waived the 30 day
statutory time limit
for rendering the decision
(Tr. 673:20-
674:3).
The
record of this 3-day proceeding is voluminous covering
almost
700 pages of transcript and more than 100 exhibits, most
of
which contain detailed statistical comparisons concerning the
issues
submitted for decision. In addition, as part of their
comprehensive
Closing Briefs, the parties submitted both judicial
and arbitral
case authority to
support their respective
positions. While the Arbitrator has carefully scrutinized
all of
this evidence and
argument, no constructive purpose would be
served
by reviewing all of the conflicting contentions of the
parties
or even most of them. Instead, the
Arbitrator will focus
his
attention solely upon those considerations deemed controlling
in
resolving the issues presented for decision.
STATUTORY
CRITERIA
RCW 41.56.460 (sometimes
hereinafter referred to as the
"Statute") sets forth the factors
by which the Arbitrator must be
guided in resolving
the disputed issues.
RCW 41.56.460(c)
stresses
the paramount importance of comparisons; it requires:
Comparison of the
wages, hours and
conditions of
employment of the uniformed personnel of cities and
counties involved
in the proceedings with the wages,
hours and conditions
of employment of
uniformed
personnel of cities
and counties respectively
of
similar
size on the west coast of the United States.
On first reading, it would appear that the foregoing language
offers
an unambiguous basis for comparison.
Further reflection,
however,
poses a number of immediate questions.
An assumption is
warranted that "similar
size" refers to Population; but
does
population
mean only within the City limits or does it include
contract
areas served by the Fire Department - - a significant
difference
in the instant case which the Union has emphasized.
How close in size to be considered
similar? What of intra~city
comparisons,
a factor of considerable importance in maintaining
internal
stability, which the City has stressed.
Must all West
Coast
cities of similar
Size be given
the same weight
in
comparative
analysis? Are the wages and benefits of metropolitan
and
rural cities truly comparable? Are there "other factors"
(RCW 41.56.460(f)) that should be
considered? These are just a
few
of the questions
that, in the
final analysis, must
be
considered
in order to render a realistic decision that satisfies
the
statutory intent.
The range of
alternatives available for
comparison is
nowhere
more apparent than in the record of this Proceeding. The
City and Union
have both offered
plausible contentions for
sharply
conflicting interpretations of the statutory criteria.
In a prior proceeding between these parties
just 2 years ago, the
Union offered a somewhat different
interpretation of how "similar
size"
should be construed (City Exhibit 23).
All
of which brings us to the main point of this discussion,
namely, that
the legislature must
have intended a
flexible
application
of the statutory criteria in order to
satisfy its
stated
"intent and purpose"
as set forth
in RCW 41.56.430.
Otherwise, how could a
single statute be administered equitably
to
cities as diverse as Seattle, Bellevue
and Yakima, to name
just a
few? For example, on the basis of firmly established
principles
of wage and salary administration, the most relevant
comparison
to Seattle would be other large metropolitan cities on
the
West Coast Since
appropriate local comparisons
are not
available;
for Bellevue, the most relevant comparisons would be
Puget Sound cities and West Coast cities of
similar size that are
contiguous to large
metropolitan areas (a
point elaborated
shortly);
and for Yakima, located in rural Washington, a separate
and
distinct basis of comparison is indicated.
In
summary, the Arbitrator is convinced that the comparative
criteria
set forth in RCW 41.56.460(c) must be applied flexibly
depending
upon the particular city (or county) involved.
The
Arbitrator finds further
support for this
conclusion in the
provisions
of RCW 4l.56.460(f) which requires consideration of:
Such other factors,
not confined to the foregoing,
which are normally
or traditionally taken
into
consideration in the determination of wages, hours
and
conditions of employment
(Emphasis added.)
The foregoing statutory
language provides authority
for the
Arbitrator's reliance
upon area comparisons, intra-city
comparisons
and the concept of individual issues in the context
of a
total economic package.
With
these general observations in mind, we turn now to an
application
of these criteria to the instant case.
COMPARATIVE
CITIES
While the City and Union both agree that comparisons of
terms and conditions of employment are
critical in this case,
they
have sharply divergent perceptions of the West Coast cities
of
"similar size" deemed comparable.
That is hardly surprising.
After all, the Union's and City's Counsel have an
obligation to
present
their clients' case in the best Possible light. They have
done so with
resourcefulness and great conviction.
Ambiguities in the Statute have been
resolved in away most
favorable
to their respective client's Position.
As a result,
the
evidence
submitted reflects their highly Partisan
views.
The
comparative data offered by both the City and Union are
useful and illuminating,
but both are
flawed in significant
respects. For example, in the selection of its 15 comparative
cities from Washington,
Oregon and California
(5 from each
state),
Bellevue has ignored one crucial fact
namely, that it is
located
in the midst of a large metropolitan area. It is clear
from
the record of this proceeding and undisputed by the parties
that
compensation levels in large metropolitan cities and their
environs are higher
than those in
less densely populated
areas.1 On the other hand, the comparative cities selected by
the
Union are more relevant, but the population spread of those
cities (up to
249,999) is overbroad;
furthermore, there is
considerable
merit to the City's arguments that the comparative
data
presented by the Union do not represent a true picture A
further
analysis of these comparative data is presented in the
discussion
of "Monthly Salaries."
1 Mr. Dow, the City's negotiator,
concurred with Professor
Knowles,
the Union's economist, that higher wages generally
prevail in metropolitan areas (Tr. 353:19-21).
______________________
What then
constitutes an appropriate basis for selecting
comparative
cities bearing in mind that exact comparisons are
rarely, if
ever, possible? Understandably, the parties were
faced
with a dilemma in attempting to select cities of "similar
size"
within Washington that are truly comparable.
No matter how
loosely
the "similar size" criterion is construed, few Washington
cities other than
Everett are truly
comparable to Bellevue.
Almost all Oregon cities of similar size are
located outside of
major population centers
and, therefore, lack
an important
ingredient
of comparability.
In
interest arbitration, we usually look first for relevant
local
and regional comparisons because area peer parity is most
meaningful to all
those involved. The reasons have
been
explained with exceptional
clarity by UCLA
Professor Irving
Bernstein, a distinguished arbitrator, in
the following excerpt
from
his authoritative work on wage arbitration:
Comparisons are preeminent in wage
determination
because
all parties at interest
derive benefit from
them. To the worker they permit a decision on the
adequacy
of his income. He feels no
discrimination if
he
stays abreast of other workers in his industry, his
locality, his
neighborhood They are
vital to
the
union
because they provide guidance to its officials
upon
what must be insisted upon and a yardstick for
measuring
their bargaining skill. In the presence
of
internal
factionalism or rival unionism, the power of
comparisons
is enhanced. The employer is drawn to
them
because
they assure him that competitors will not gain
a wage-cost
advantage and that
he will be
able to
recruit
in the local labor market. Small firms
(and
unions)
profit administrative~y by accepting a ready-
made
solution; they avoid the expenditure of time and
money needed
for working one
out themselves.
Arbitrators benefit no less from comparisons. They
have 'the appeal of Precedent and awards based
thereon
are apt to satisfy the normal expectations of
the parties
and to appear
just to the
public'.
(Emphasis
added.) 2
In
short, area comparisons
of like jobs
is a criterion
of
fundamental
importance in interest arbitration.
2. Arbitration of
Wages Publications of
the Institute of
Industrial
Relations (Berkeley: University of California
Press,
1954), p. 54.
__________________________
Bellevue, it must be noted,
is located centrally in the
Puget Sound area, immediately
east of Seattle.
Puget Sound is an
integrated
economic area with a common labor market.
Therefore,
applying the above
rationale to Bellevue,
the Arbitrator
concludes that comparison with cities in the Puget Sound
area
offers
the most Persuasive basis for comparison and a criterion
fully sanctioned
by RCW 41.56.460(f). Furthermore, data
submitted for Puget
Sound cities are
the most relevant
comparative
data contained in the record of this Proceeding for
reasons
elaborated in the discussion below.
To
further implement the statutory mandate, comparison must
also
be made with other West Coast cities outside the Puget Sound
area. In order to maximize the relevancy of such
comparative
data to Bellevue's
Fire Department, these
additional cities
Should be: (1) cities of similar size (including
contract areas
served)3; and (2) located in a major metropolitan
area. Most of
the
California cities and all of the Oregon cities offered for
comparison
by Bellevue do not satisfy this latter point.
On the
other
hand, most of the Union-selected cities meet this two-fold
test. However, the Union has not submitted specific
comparative
data
for Washington and
Oregon cities on
wages, hours or
conditions
of employment Its "per compensable
hour" comparisons
provide a
general indication of how these cities compare but these
data
do not offer sufficiently specific criteria for determining the particular
issues
submitted for decision in this case.
3 Bellevue's Fire Department provides fire suppression
services to a
total population of
approximately 95,000
persons,
including contract areas served.
________________________
To
summarize, in arriving at his decision on the issues in
this
case, the Arbitrator has considered cities of similar size
on
the West Coast of the United States as mandated by Statute; he
has
also taken into account other factors customarily considered
in
interest arbitration cases. On the basis
of the record before
him,
the Arbitrator concludes that the comparative data submitted
for Puget
Sound cities are more relevant to the decision in this
case
and, therefore, entitled to much more weight than data from
other
West Coast cities. All comparative
data, like all other
evidence,
are not necessary entitled to equal weight.
Before
leaving this general discussion of comparisons, one
additional point must
be mentioned. In its
evidence and
argument, the
City has stressed internal
comparisons -- i.e.
comparisons
with other employee groups employed by the City. The
Arbitrator
agrees that such
comparisons are entitled
to
significant weight, Particularly
when dealing with a
general
city-wide benefit like
group insurance, for
example. This
criterion of intra~city comparison
will be amplified
as it
relates
to particular issues discussed below.
Finally,
the Arbitrator will simply note here that he has
carefully reviewed and
taken into account
the judicial and
arbitration
decisions interpreting RCW 41.56.460 (Exhibits A, B~
C and D attached to City's Closing Brief)
before arriving at his
interpretation
of this statutory language.
MONTHLY SALARIES APPENDIX A
Proposals of the Parties
The City
proposes that all
1982 monthly salary rates be
increased
by $144 across the board which amounts to 7.2% for a
top-level
Fire Fighter4
4 The City offer is reduced to 6.8% overall because its $144
across the board proposal amounts to a 7.2% increase for top
Fire
Fighter, 6.3% for top Lieutenant and 5.7% for Captain
(City Exhibit 67).
______________________
The
Union proposes that
all 1982 monthly salary rates be
increased
by 20.2% ($2,411 for a top-step Fire Fighter) and that
Paramedic classifications be
amended to reflect a 10% higher rate
than
the same classification without Paramedic qualification.
Positions of the Parties
The
City's Proposed increase in monthly salaries would
place
its
top-step Fire Fighters third in rank among the 15 similar
size
West Coast cities (City Exhibit 11) and
at the median of
Puget Sound cities
used as comparators
by the Union
during
negotiations
(City Exhibit 14). The City's salary
offer, when
considered in conjunction
with its total
proposed economic
package,
also treats Fire Fighters favorably in comparison with
other
City employee groups (City Exhibit 67) and maintains the
historic
relationship between Police Officers and Fire
Fighters. The City also proposes a flat dollar increase
instead
of a
uniform percentage because the present rank differentials
are
much wider than those found in comparable cities. Finally,
contends
the City, the Union's proposed increase for Paramedics
cannot
be justified by the comparative data (City Exhibit 28) and
it
urges that Paramedic
pay increases be
included in the
Performance Recognition Program (PRP) as it
has Proposed.
The Union
maintains that its
comparative data should be
accepted
by the Arbitrator because its figures are based upon
comparable
metropolitan cities not the rural comparisons offered
by the City.
According to the
Union's compensable hour
comparisons, the disparity which prevails between the
level of
overall
Fire Fighter compensation in Bellevue and the norm for
overall compensation in
fairly comparable cities lies between
39.5% and 43.2% (Union Exhibit 9). Thus, contends the Union, its
proposed
20.2% across the board salary increase would represent
reasonable progress toward
parity but by
no means eliminate
existing
differentials. Next, the Union claims
that its Proposal
for
Paramedic premium pay is justified by comparison with other
medics'
salary levels (Union
Exhibit 27), by
the skills and
training
they acquire, by their proven value to the City and the
adjacent
areas they serve, by community support for the program,
and by their special responsibilities and
difficult working
conditions. Finally, contends the Union) Bellevue is an
affluent
community
with an extremely favorable fiscal Status and potential
revenue
sources far in excess of any amounts required to bring
its compensation for
Fire Fighters into
parity with other
comparable
cities (Union Closing Brief, p 32).
Opinion of the Arbitrator - Monthly Salaries
The
provisions of RCW 41.56.460 are necessarily broad with
considerable
latitude for interpretation. In
construing it, the
parties
have applied their own perceptions of equity and, not
surprisingly, have
reached conflicting conclusions
concerning
appropriate
salary levels.
Bellevue
is located in a major metropolitan area.
Yet, over
half
the cities selected for comparison by Bellevue are located
outside
of major population centers i.e. all S
Oregon cities,
Yakima, Bellingham, El
Cajon and Santa
Barbara. Both the
testimony
and documentary evidence establish that generally lower
levels
of compensation prevail outside metropolitan areas. The
substantial
wage disparity between metropolitan and rural cities
is
confirmed by an analysis of the City's comparative salary data
which reveal a
direct correlation between
salary levels and
Proximity to metropolitan areas.
Consider, for example,
the
significant difference in
Fire Fighter salary
levels between
Richmond ($1,854-$2,245) located
in the metropolitan
San
Francisco~Oakland Bay area
and Springfield ($1,301-$1,582)
located
in rural Oregon (City Exhibit 11).
Yakima, located in
rural
Washington, has the lowest salary levels of all Washington
cities
offered for comparison by both the City and Union. These
are,
by no means, isolated examples. In
short, the City's data
have a
distinctly rural or non-metropolitan bias.
The
Union's selection of West Coast comparative cities is
more representative although
its outer parameter
(250,000
Population) is overbroad. In any event, the Arbitrator is not
persuaded that
the Union's "per compensatable hour" data
supports
its
conclusions for at least three principle reasons: First,
the
1981 International City
Management Association yearbook
data
(Union Exhibit 13)
are useful to
provide broad, general
comparisons
of diverse economic benefits among a large number of
cities
but are not sufficiently complete, current or specific to
warrant the Arbitrator's reliance on them
to support specific
findings; Second,
the Arbitrator is not convinced
that the
Union's "per compensable
hour" computations offer
a reliable
common
denominator for resolving the specific issues submitted
for
decision; at some point in the analytic process, the economic
data
must be subjected to the ultimate test of an issue by issue
comparison
of each disputed item standing
alone; and Finally,
when
the Union converts its "per compensable hour" data into a
salary
equivalent, it results in a proposed Fire Fighter monthly
salary
($2,411) which cannot be justified by comparative salary
levels
for any other
city listed in
the record of
this
proceeding.
Since
neither the
City's or Union's data are conclusive,
what
then is the appropriate basis for comparison in this case.
Before arriving at his decision, the Arbitrator has carefully
reviewed,
evaluated and considered the comparative data for all
West Coast cities. In his opinion, the most relevant, reliable
and persuasive data
in the record
are for those Puget
Sound
cities
set forth on Exhibit A (attached hereto).
Based upon his
analysis,
the Arbitrator concludes that a monthly salary increase
of
$250 across the board5 is warranted.
This will place Bellevue
Fire Fighters 4th
in the Puget
Sound area, behind
Everett
($2,350), Tacoma
($2,315), Renton ($2,322)
and on a par with
Kirkland ($2,254).
5 The Arbitrator has awarded a fixed dollar amount instead
of
a
flat percentage increase, as proposed by the Union, to
reduce
present disparities in pay levels (Tr. 335:1-22).
_______________________
The
Arbitrator has also given careful consideration to the
City's emphasis upon
the long-term relationship
between the
monthly
salaries of its Police Officers and Fire Fighters (City
Exhibit 22). While the Arbitrator agrees that this is a
factor
of
considerable importance, he cannot agree that it should be
decisive
when, as here,
the wage data
for Fire Fighters
in
comparable cities so
clearly justifies a more substantial
increase.
Finally,
on the issue of salaries, it should be noted that
the
citizens of Bellevue enjoy a relatively high standard of
living. According to data submitted by the Union,
only 5 out of
the
72 West Coast cities between 50,000 and 250,000 population
exceed Bellevue's per
capita income. The general financial
status
of a community where an employee lives and works is an
appropriate
factor for consideration although less important than
the
other criteria discussed above. On a
related point, it is
noteworthy
that the City has not claimed inability to pay (Tr.
416:14-23), although it argues that new
funding sources or cuts
in
other City programs would be necessary to fund the Union's
demands -
a contention sharply controverted by the Union.
Next and finally
is the issue of Paramedic Premium pay.
Nowhere is Chief
Sterling's emphasis upon
excellence and
individual
initiative more apparent than in Bellevue's Emergency
Medical Services (EMS)
Program; according to the Chief's
testimony, "
our Paramedic level of service is Probably the
most
critical service we are supplying at this time as far as the
public
demand for service." (Tr.
591:2-5) EMS calls have been
escalating
dramatically over the past decade; medical emergency
calls
are now more than twice as frequent as fire calls (Union
Exhibit 26). Approximately 60%
to 70% of
Fire Department
responses are now
for EMS (Tr.
48:11-20). These emergency
services are provided both to the
City and, by contract, to
adjoining areas with
a combined population
of approximately
144,000 persons covering a
large geographical area.
Paramedics
are a highly trained, dedicated group who have
earned an excellent
reputation for their
emergency medical
services over the
past 10 years.
Lt. Norris outlined the
extensive
training the Department's Paramedics receive to enable
them
to handle these medical emergencies:
1,800 hours of formal
instruction, spanning
approximately a year
of Fire Fighter's
service. As Norris put it, the skills of these Paramedics
can
make
the difference between life and death (Tr. 304:10).
The current $124 per month pay differential has been in
effect
for at least S years (Tr. 421:6-9) In
the Arbitrator's
opinion,
an increase to $200 per month is certainly in order on
the
basis of their skill, training, responsibility for human life
and
proven record of service to a constantly expanding population
area.
Award - Monthly Salaries
All
bargaining unit employees are awarded a $250 across the
board
increase in their monthly base salaries.
The Paramedic pay
differential
shall be $200 per month. Both increases
retroactive
to
January 1, 1982.
COST-OF-LIVING
ADJUSTMENT - APPENDIX A
Proposals of the Parties
The
City proposes a monthly cost-of-living adjustment for
the
second year of the Contract (1983) equal to the greater of
$130 or
80% of the
percentage increase of
the Personal
Consumption Expenditure Index (PCE) from
January, 1982 through
December, 1982 with a maximum
cap of $200 per month.
The Union Proposes
that the second
year cost-of-living
increase
should be equal to the percentage change in the Consumer
Price Index for
Urban Consumers (1967=100),
published by the
Bureau of Labor Statistics, adjusted for the
Seattle area, from
November, 1981 to November, 1982.
The recently expired
Contract provided a
second-year
increase
equal to 80% of the Percentage annual increase in the
Seattle area Consumer Price Index (CPI),
with an upper limit of a
12% total increase.
Positions of the Parties
The City
maintains that the CPI measures inflation,
not
changes in the cost-of-living; furthermore,
the following four
factors
cause an estimated 24.37% upward distortion in the CPI
(City Exhibit 3): The home ownership component (16.75%); medical
care
costs, which are substantially covered by insurance paid for
by
employers, not individuals (4.62%); substitution by consumers
(3%); and increase in quality. Therefore, tying a second-year
increase
to the total
percentage increase in the CPI
would
greatly
overstate the actual cost-of-living increase experienced
by Fire Fighters.
The City proposed
PCE, by contrast,
is
considerably
more accurate than the CPI in gauging changes in the
cost-of-living
due primarily to its use of a rental imputation
component
to measure housing costs. The City
insists that its
proposal
for a second-year increase equal to 80% of the increase
in
the PCE, with a limit of $200 per month, represents a generous
approximation
of the actual change of living costs experienced by
Fire Fighters.
The
Union points out that
the CPI is almost universally
accepted
as an inflation measurement standard and even the City
invokes it to explain fiscal matters to its taxpayers (Union
Exhibit 34). The City was unaware of any other labor
agreement
that
incorporates the PCE,
which is conducted
solely on a
nationwide
basis and its
data vary over
time because of
retroactive
adjustment~ In its Closing Brief, the Union has
offered a detailed,
point~by~point
rebuttal to the 4
factors
cited
by the City
as its explanation
for rejecting the
CPI
(Union's Closing Brief, pp 42-46).
Opinion of the Arbitrator - Cost-of-living
Adjustment
The
CPI and PCE are both broad economic indicators which
have charted sometimes
above and sometimes
below each other
(Union Exhibit 12). Both have certain flaws, particularly as a
short-term
measurement of price change (City Exhibits 3 and 4)
The
PCE has some obvious drawbacks when compared to the CPI
it is subject
to periodic retroactive
adjustment and is
published only nationally.
However, the Arbitrator's
main
concern
is prompted by City Economist Dawson's inability to name
a
single collective bargaining agreement that uses the PCE (Tr
212:17 - 213:16);
nor is the
Arbitrator aware of
any. An
assumption
seems warranted that,
if the PCE were indeed more
accurate
than the CPI, its use would be far more evident.
The
City's principal concern about distortion in the CPI is
based
upon estimates of the 1981 home ownership component (City
Exhibit 3). There is absolutely no reason to assume,
however,
that
the upward spiral of real estate prices has continued; on
the contrary, all
current reports indicate
that real estate
prices
have leveled off
and may be on
their way down
a
conclusion
reinforced by the drastic reduction in the CPI from
1981 levels. The evidence concerning
2 other factors
which
allegedly
distort the CPI - substitution and increase in quality
- is
simply not convincing. Fourth and
finally, medical care
costs
as an overstatement of the CPI
(4.62%, City Exhibit 3)
appear
to be more significant in the PCE (9.56%, City Exhibit 4).
In
summary, the Arbitrator is not persuaded that evidence in
the
record warrants a
departure from the
CPI, the broadly
accepted
index used to measure changes in the costs of living in
both public
and private sector
collective bargaining
agreements. In particular, it
seems doubtful that
the home
ownership
component will continue to be a distorting factor in
1982.
Finally, based upon reported cost-of-living data for 1982
and annual projections,
a cap on the 1982 CPI cannot be justified.
Award - Cost-of-living Adjustment
Effective January 1,
1983, the monthly
salaries of
bargaining
unit employees in effect December 31, 1982, shall be
increased
by the percentage increase of the Consumer Price Index,
adjusted
for the Seattle area, November, 1981 to November, 1982
(1967=100).
HOURS
OF DUTY - ARTICLE XII
Proposals of the Parties
The
City proposes to retain hours of duty at 53.23 and that
the last sentence
in the current Article XI16 be dropped to
permit
the City flexibility in establishing shift starting times.
6 The last sentence of Article XII reads as follows:
The
regularly scheduled duty hours shall be
scheduled for periods of twenty~four
(24)
consecutive hours, beginning at 0800 hours.
At the arbitration hearing, Mr. Dow clarified
the proposal
to retain the
24 consecutive hour
shift requirement; as
modified
by Mr. Dow, the only words deleted from
the last
sentence
would be "beginning at 0800 hours.", thus allowing
the
City to determine
the starting time
of each Fire
Fighter's shift (Tr.
454:4-455:22).
_________________
The
Union Proposes a reduction in hours to 50.48 hours per
week,
effective July 1, 1982 and Opposes elimination of the 0800
shift
starting time.
Positions of the Parties
The
City contends that its
current 53.23 hour work week
compares
favorably with the work week of similar size cities on
the West Coast.
Fire fighters in the
California and Oregon
Cities selected for
comparison uniformly work a 56-hour week
(City Exhibits 33 and 34).
The 53.23 hour
work week also
compares favorably with
the Puget Sound
cities selected for
comparison
(City Exhibit 34); as regards this latter comparison,
the
City insists that
Everett, whose 42-hour work
week was
established by
referendum rather than through bargaining, is not
comparable
on hours of
work because Everett
shifts are not
assigned
on a 24-hour basis; its 10 hour day shift/14 hour night
shift is an
anomaly among all
cities surveyed (City Exhibit
33). In addition, the City points out that
Fire Fighters already
have substantial blocks
of time off;
counting Kelly days,
vacation
and holidays, a Fire Fighter's 2,912 hour annual cycle
is
reduced from 408 to 456 hours. Finally,
declares the City, if
the
Union's Proposal were granted, at least
5 additional Fire
Fighters would have
to be hired
to maintain current service
levels;
the cost ($73,685) would strain an already overburdened
City budget.
The
City's proposal to drop the fixed 0800 starting time for
the scheduling of
shifts is necessary
to permit increased
scheduling flexibility to meet
changing needs. For example,
Chief Sterling testified
that expanding needs
may require
adjusting shifts so
that more Fire Fighters will be
on duty
during
peak demand periods; also, shift adjustments may be needed
to resolve administrative problems,
such as the
planning of
parking
space.
The Union asserts
that Bellevue Fire Fighters work
more
regularly
scheduled hours per week than Fire Fighters in every
other
Puget Sound area city except Kent (Union Exhibit 19). The
Tacoma and Everett average is 45 hours per
week. The weighted
average
of all 9 Puget Sound cities
is 46.6 hours per week.
Thus, insists the Union, its proposed
reduction from an average
of
53.23 to 50.48 hours per week should be adopted.
The
Union objects to the City's Proposal to drop the 0800
starting time as unjustified by the evidence and contrary to
shift
scheduling practices which have worked satisfactorily for
years. The only reasons offered to support this
claimed need for
greater flexibility was
Chief Sterling's testimony
that he
believed
some future parking problem might thereby be avoided and
that
on occasions he might want to have someone come to work at
6:00 p.m. and be wide awake. No instances of past difficulties
were
described. The Union argues that these
are not sufficient
reasons
for abandoning the established 8:00 a.m. shift starting
time.
Opinion of the Arbitrator - Hours of Duty
The
comparative data for Puget Sound cities and the West
Coast cities cited by Bellevue stand in
sharp contrast with each
other
as regards hours of duty. The average
work week for Puget
Sound Cities, as revealed by the record, may be
summarized as
follows:
1. City Exhibit 33 49.9 hours7
2. Union Exhibit 19 48.5 hours8
3. Exhibit A
48.8 hours9
On the other hand, Fire Fighters in the California and
Oregon
Cities included in Bellevue's comparative
data uniformly work a
56 hour week (City Exhibits 33
and 34).
7 The
Arbitrator has considered
the City's argument
that
Everett should not be considered comparable
because of its
odd
shift schedule (10 hour day shifts and
14 hour night
shifts)
and 42 hour work week adopted by referendum.
He
cannot
agree that this warrants a
different treatment of
Everett's work week for
comparative purposes.
Therefore,
Everett, which
is included in City Exhibit 33, has been
included
in the average hours set forth above.
8 Union Exhibit 19 reports a weighted average of 46.6 hours;
however,
this gives undue weight to Seattle and Tacoma; the
48.5 hour figure
set forth above
represents the mean
average.
9 Exhibit A (attached hereto) includes the Puget Sound
Cities
which the Arbitrator has adopted for comparative purposes.
______________________
That
brings us to the principal consideration, namely, which
of the
comparisons summarized above are
controlling. For the
reasons
already discussed at length earlier in this decision, the
Arbitrator has concluded that comparisons
with the Puget Sound
cities
are entitled to more weight than the West Coast cities
cited
by Bellevue. The Union's proposed 50.48
hour work week is
clearly justified by
comparison with Puget Sound
cities and,
therefore, is
granted. The effective date is
deferred until
September 1, 1982 to give the City sufficient time
to make an
orderly
transition to the new schedule.
As regards the 8:00 a.m.
starting time, the Arbitrator is
not
persuaded of the need to drop it for at least two principal
reasons: (1) while there may be occasions when the
needs of the
Department would warrant a different
starting time, the parties
should adopt a
special provision to
meet these exceptional
occasions instead of cancelling the long-standing
8:00 a.m.
starting
time; and (2) the established practice in other fire
departments
is to have a fixed starting time (Tr. 458).
Award - Hours of Duty
Article
XII is amended
by changing the number "53.23" to
read
"50.48" hours, effective September 1, 1982.
VACATION
LEAVE - ARTICLE XVII
Proposals of the Parties
The
City's vacation leave Proposal was linked to and made
contingent upon the Arbitrator's ruling on
the Hours of Duty
issue
(Tr. 476:19-477:22 and City Submission Agreement, footnote
1). Since the Arbitrator has granted the Union's proposed work
week
reduction from 53.23 to 50.48 hours, the City now proposes
no
change in its vacation policy.
The
Union proposes to amend the vacation schedule appearing
in
Article XVII, Paragraph A (Joint Exhibit 2, p. 9) as follows:
Years
of Shifts Hours per calendar
Continuous
Service Present
Proposed month
of service
1 4 4 5 10
5 - 9 5 6 12
10 - 14 6 8 16
15 or more
7
15 20 9 18
after 20 years - 10
20
Opinion of the Arbitrator - Vacation Leave
It
may be apropos, at this point, for the Arbitrator to give
voice
to a problem most neutrals grapple with when dealing with a
relatively large number
of economic issues
in an impasse
proceeding. Realistically, even if the Arbitrator deemed the
Union's position on all
economic items to be meritorious, he
would feel the
full impact of the
Rome-wasn't build-in-a-day
principle. Under such pressures, consideration of which
items
are
best deferred to a later period becomes a necessary element
of
impasse resolution.
In
short, all economic issues must be evaluated as part of a
total
compensation package. Frequently in
collective bargaining,
some issues which
have merit when considered alone, must
be
deferred because other
issues are entitled
to a higher
Priority. In the instant case, the Arbitrator has
placed a high
Priority on two substantial cost items, an
increase in salaries
and a
reduction in hours, in addition, other significant cost
items
are included in this Award. The Union's Proposed vacation
leave
would add $35,684 (City Exhibit 17) to the total Package.
In the Arbitrator's opinion, this sum would
increase the amount
of
total compensation in this Award to a level that cannot be
justified Therefore,
the Union's Vacation Leave Proposal
is
denied.
Award - Vacation Leave
Vacation
leave shall continue unchanged.
INSURANCE
COVERAGE (MEDICAL-DENTAL) - ARTICLE XXVII
Proposals of the Parties
The City
proposes to pay 100%
of the employee-only rate
under
either Blue Cross or Group Health, and 80% of the premium
for dependent health
care coverage) based
upon the rates
effective
January 1, 1982. The remaining 20% of
the dependent
care
coverage would be paid by the employee.
Any increase in the
stated
premiums (City Exhibit 52) which Occurs during the term of
the
Agreement would continue to be borne on a 50-50 Cost-sharing
basis
by the City and the affected employee.
The
City proposes to pay 100% of the employee-only dental
care
premium; for dependent
coverage in the dental
insurance
plan,
employees would be required to pay $3.00 per month toward
dependent
coverage. The City further agrees to
provide and pay
for a $10,000 life
insurance policy for each bargaining unit
employee.
The
Union proposes to retain the same basic provision as in
the
prior Contract, with a change in the premium effective date
to
January 1, 1982. The effect of this Proposal would be to
require
the City to pay 100% of the current cost of medical and
dental
benefits for employees, Spouse and dependents, to continue
the
practice of allocating the cost of
increases on a 50-50
basis,
but to have employees share in increased costs only to the
extent
they exceed the maximum premium in effect on January 1,
1982.
Positions of the Parties
The
City emphasizes the drastic increases in medical/dental
premiums
for the same
coverage - a
17% increase over
City
expenditures
for medical insurance for Fire Fighters during 1981
and a
13% increase in dental premium costs. Were the City to
absorb
the full impact of these insurance premium increases, as
the
Union proposes, increased costs to the City from 1981 to 1982
would
be 31% for medical insurance premiums and 23% for dental
insurance premiums (City
Exhibit 53). It is
financially
unrealistic
of the Union to expect the City to be able to absorb
the full impact
of such drastic premium increases
which are
totally
beyond the City's control.
Finally, stresses the
City, its proposal sets a
premium
level
to be paid for Fire Fighters which is approximately equal
to
or more than the contributions made on behalf of other groups
of
City employees (City Exhibit 55). If
only to maintain equity
among various employee
groups, the City's proposal should be
adopted
as the maximum to be paid by the City.
The
Union points out that the parties' practice, at least in
recent
years, has been for the City to pay 100% of the insurance
premiums
for medical and dental insurance at the beginning of a
Contract, and for any
increases in premiums thereafter to be
split
between the City and the employees on a 50-SO basis. The
Union proposes that practice be continued
and that the City and
any
affected employees split the cost of any increases above the
maximum
premium paid by the City in effect on January 1, 1982.
The
Union contends that its proposal is more consistent with
the
practice of comparable Puget Sound cities, most of whom pay
100% of both employee and
dependent coverage (Union Exhibit 38).
Opinion of the Arbitrator - Insurance
Coverage
When a general
benefit, like group
insurance, applies
uniformly
to a diverse group of City employees, an
arbitrator
should
hesitate to order something different in the absence of
clear
and convincing evidence to prove an inequity.
Deviations
from
a uniform benefit
pattern can be
highly disruptive to
employee
morale. In short, comparisons among
employee groups of
the
same employer are no less important than comparisons with
other
employers.
The City's proposed
maximum monthly medical
insurance
premium,
at $130.33 per month, is the same as that paid on behalf
of
Police Officers and approximately $12.00 more per month than
that
paid on behalf of other City groups.
The City's proposed
dental premium is
slightly less than that paid on behalf of
Police Officers -- $37.84 per month for
Police Officers compared
to $36.25 offered to Fire Fighters (City Exhibit
55). (The
reason
for this slight
discrepancy does not
appear in the
record.)
On
the other hand, were the Union's proposal adopted, Fire
Fighters would receive substantially more in
medical and dental
insurance
premiums than any other City employee group currently
enjoys. The only evidence offered by the Union to
support its
position shows that
most Puget Sound
cities offered for
comparison
pay 100% of both employee and dependent coverage but
this
evidence does not reveal either the premium cost or actual
insurance
coverage provided by these cities (Union Exhibit 38).
Therefore, cost comparisons cannot be made
from these data. This
is
not the kind
of clear and
convincing evidence which the
Arbitrator deems necessary
to justify a
departure from the
generally
uniform insurance coverage provided to the City's other
employees.
For
the reasons set forth above, the Arbitrator adopts the
City's proposal on insurance coverage
amended only to provide a
maximum
monthly dental premium of $37.84 (instead of the proposed
$36.25) in order to make both the medical
and dental benefits of
Police Officers and Fire
Fighters identical.
Award - Insurance Coverage (Medical-Dental)
The
City's medical and dental insurance coverage proposal
(as set forth in
City Exhibit 52) is hereby adopted
effective
January 1, 1982; provided, however, the maximum monthly dental
premium
paid by the City shall be $37.84.
DISABILITY
LEAVE AND SICK LEAVE FOR EMPLOYEES
HIRED
ON OR AFTER OCTOBER 1, 1977 - ARTICLE XXVIII
Proposals of the Parties
The
City has accepted the Union's proposal to increase the
amount
of paid sick leave available for new Fire Fighters from 1
shift
to 3 shifts, which must be repaid to the City within a
prescribed
period. The remaining disputed issue is
whether the
City should pay on behalf of employees hired
on and after October
1, 1977,
100% of the
insurance premium, currently
$12.00 per
month for
Supplementary Income Replacement
insurance for
occupational
and non-occupational disability.
Positions of the Parties
The Washington
State Legislature has
established a
disability
retirement system applicable to all law enforcement
officers
and fire fighters (LEOFF), which was converted into 2
separate
plans in 1977. The first plan (LEOFF I)
applies to law
enforcement
officers and fire fighters employed prior to October
1, 1977; the second plan (LEOFF II) applies
to those hired on and
after
October 1) 1977.
The
state plan in effect prior to 1977 provided 6 months
paid
disability leave to any covered individual, followed by a
disability
retirement benefit. The generous
benefits provided
under
that system resulted in nearly 60% of all covered employees
taking disability rather
than normal service retirement.
To
eliminate
such abuses, the Legislature in 1977 sharply curtailed
the benefits of
LEOFF II personnel
by removing disability
benefits
for non-duty related injuries and placing them under the
state's
workers' compensation program.
The
Union maintains that this $12.00 per month supplementary
disability
insurance pension premium for LEOFF II employees is
the
Union's highest priority in these proceedings because of the
inadequate
coverage now provided LEOFF II Fire Fighters.
For
example, as reported recently in a local newspaper, a
Seattle
Fire Fighter was crippled as a result of an
on-the-job injury and
received a
LEOFF II disability pension of $1.56 per month (Union
Exhibit 39).
The
City declares that the Union is simply attempting to
reinstate,
at City expense, a system which the Legislature has
determined should be
eliminated. Fire Fighters in
other
comparable
cities do not enjoy the kind of coverage the Union is
now proposing and
similar proposals have
been rejected by
interest
arbitrators in the City of Kent (Exhibit C), the City of
Everett (Tr. 580:11-16), and by Arbitrator
Champagne in the prior
arbitration between the parties
to the instant
dispute (City
Exhibit 23).
Opinion of the Arbitrator Disability and Sick Leave
While
Captain Pedee has identified this proposal "as the
highest
priority on our list of issues", Pedee candidly
conceded
that
he knew of no other city which pays this insurance premium
(Tr. 568:11-20 and 572:12-13). Furthermore, it is undisputed
that
similar proposals have been rejected in 3 prior Washington
interest
arbitration proceedings.
The
Arbitrator has no reason to doubt the Union's sincerity
when
it denominates this
as the highest
priority issue.
Providing adequate compensation to disabled Fire Fighters is,
understandably, an
important Union objective.
What the
Arbitrator questions, however,
is whether arbitration
is the
proper
forum to raise the issue. In the past, this issue has
been handled
on a state-wide
basis by the
Washington
Legislature. If the law deals harshly with LEOFF II
employees,
as
the Union insists, that problem should
be addressed to the
Legislature for a state-wide
solution. The
Arbitrator is simply
not
convinced that this matter should be handled on a city-by-
city
basis. Therefore, the Union's proposal
is denied.
Award - Disability Leave and Sick Leave
for
Employees Hired on or after October 1, 1977
The
second paragraph of Article XXVIII shall be amended by
changing "one shift
off with pay" to
"three shifts off with
pay'1. The Union's proposal for Supplementary
Income Replacement
insurance
is denied.
LONGEVITY
(UNION PROPOSAL) VERSUS
PERFORMANCE
RECOGNITION PROGRAM (CITY PROPOSAL)
Proposals of the Parties
The
Union proposes a longevity premium of 2% after 4 years,
4% after 9 years, 6% after 14
years, and 8% after 19 years.
The
City proposes to incorporate the Union's proposal for
longevity pay, as
well as the
present Educational Incentive
Program, into
a comprehensive Performance Recognition Program
which
would base incentive pay on a combination of educational
attainment, performance
appraisal and years
of service (City
Exhibit 40).
Positions of the Parties
According
to the Union, Bellevue
is the only city in the
state
with a Population
of over 50,000
with no longevity
compensation
(Union Exhibit 20); only Kirkland (bargaining unit
size
22) and Edmonds (bargaining unit size
14) of the other 9
cities
in the Puget
Sound area do
not provide longevity
compensation. The Union argues that the City has offered
no
credible
rationale for opposing longevity compensation other than
its
own ideology.
In its Closing Brief (pp.
57-62), the Union has expressed
vigorous
Opposition to the
City's PRP proposal
which is
characterized by the
Union as "ill-planned, insufficiently
detailed, disruptive of
labor harmony, totally unworkable and
probably
unlawful." (p. 62).
The City,
for its part,
points out that
its proposed
Performance Recognition Program is designed
to provide incentive
bonuses
which are greater
as a Fire
Fighter's educational
attainment,
performance and years of service increase.
According
to
the City, such a performance-linked plan is superior to either
a
plan based purely on either education or
longevity because
neither
longevity nor educational level per se is related to an
employee's value to
an organization. The parties have
traditionally
determined, however, that
education is a valued
characteristic,
while the Union has sought additional longevity
pay. The PRP incorporates both these elements in a
matrix which
adds
in a value for job performance as well and, as a result,
rewards employees who
are actually of greatest
value to the
organization.
The
City adamantly opposes the Union's longevity proposal on
the
ground that there is no correlation between length of service
and
quality of work performance.
Furthermore, declares the City,
no
similar-size West Coast city has both premium pay systems, one
based
on educational attainment and the other on longevity (City
Exhibit
41); nor does
any city selected
by the Union
as
comparable
have such a double incentive system.
Yet, the Union
now
seeks both. A similar demand by the
Union was rejected in
arbitration 2
years ago (City Exhibit 23).
Opinion of the Arbitrator - Longevity vs.
PRP
Even
assuming, arguendo, that the Union's longevity
proposal
were deemed meritorious,
its projected cost
($67,332 - City.
Exhibit 17) cannot
be justified in the context
of the total
economic package. In the
Arbitrator's opinion, the
other
economic benefits already
approved must be
given a higher
priority. Therefore, the Union's longevity proposal is
denied.
In
evaluating the City's Performance Recognition Program, 2
important
points stand out which are difficult to reconcile. On
the
one hand, the PRP requires the cooperation and participation
of
all bargaining unit employees (Tr. 508:15-21 and 528:21-25).
On the other hand, the Union (in its
institutional capacity) has
expressed
ideological differences about the value of this program
and, in its Closing Brief, has offered a number of arguments
which
lend support to its concern - - arguments which deserve more
careful consideration than
is revealed by the record of this
proceeding. How, it must be asked, can
a program (any program),
dependent
on mutual cooperation, hope to succeed when one party
is
convinced that the
Program is contrary
to its interests?
Until a number of the Union's objections
have been more fully
explored,
the Arbitrator cannot agree that PRP should be included
in
the parties' Agreement. In arriving at his decision, the
Arbitrator also deemed it significant that
the City was not able
to
name any city in Washington or elsewhere on the West Coast
with a
similar program (Tr. 544:13-545:1).
Award - Longevity vs. Performance
Recognition Program
The
Union's longevity proposal (Union Exhibit 20) and the
City's
proposed Performance Recognition Program (City Exhibit 40)
are
both denied.
COMMUNICATION
PROCEDURE - ARTICLE XXV
Proposals of the Parties
The City proposes
to amend the
existing communication
procedure in the following
3 respects: (1)
to clarify that
subjects
discussed under the grievance procedure of the Contract
may
not also be presented in the communication procedure; (2) to
bar
the labor-management committee from using the procedure to
modify
express terms of
the parties' Contract;
and (3) to
substitute
the Fire Chief for the City Manager as the City's
coordinator.
The
Union proposes no change in the existing language of
this
provision.
Positions of the Parties
The City explains
that the reasons
for these proposed
changes
are: (1) to underscore the separation,
in the current
Contract language, of
discussions about grievances
from those
matters
discussed by the labor-management committee; otherwise,
informal agreements
reached with the Fire Fighters' bargaining
unit
may be interpreted to apply to other City employees as well;
(2) under the
City's system of government, department heads are
to
run their own
operations, subject to
review by the City
Manager an d City Council; it is consistent with this system to
have
the Fire Chief designated as the City's representative in
the
communication procedure, rather than the
City Manager; of
course,
points out the
City, this would
not preclude Union
officials
from meeting with the City Manager on any appropriate
subject.
The Union opposes
these proposed changes
as completely
unnecessary.
Opinion of the Arbitrator - Communication
Procedure
The City-proposed changes
simply emphasize that
the
Communication Procedure (Article XXV) and
the Grievance Procedure
(Article XXIV) are 2 separate and distinct contractual
processes. In addition, the Fire Chief is substituted
for the
City Manager in conducting the initial
discussions prescribed by
the Communication Procedure.
Since the Fire
Chief has the
principal responsibility for
running the Department,
it is
appropriate
that the Contract make clear his authority to conduct
such
discussions. In short, the City has advanced persuasive
reasons
for its proposed changes.
Award - Communication Procedure
Article
XXV is amended by adopting the City's proposal (City
Exhibit 64) in place of the
existing Contract language.
PREVAILING
RIGHTS - ARTICLE XX
Proposals of the Parties
The
City seeks to enumerate specific rights reserved to it
under
the existing clause
(City Exhibit 61),
to the extent
permitted
by its Contract with the Union.
The
Union proposes to modify the existing clause to provide
that
the Union had
not waived its right to bargain
on any
mandatory
subject not covered by the Contract.
Positions of the Parties
The
Union insists that an added provision is necessary in
order
to clarify its continuing right to bargain on mandatory
subjects. The Union maintains that its position is
supported by
a
March, 1980 decision
by the Public
Employment Relations
Commission of the State of Washington
(PERC), which held that the
parties did not
waive their rights
to bargain on mandatory
subjects
during the term of their agreement; that an order issued
by Bellevue directing
Fire Fighters to
disclose outside
employment
to the Fire Chief was a mandatory bargaining subject;
and
that the City
had violated its
bargaining obligation by
unilateral promulgation of
the order (Union
Exhibit 40).
According to the
Union , its proposed
contract amendment will
avoid
confusion in the future.
In
opposition to the City's Management Rights proposal, the
Union argues that it is unlawful based upon
a preliminary ruling
of
an unfair labor
practice charge (Union
Exhibit 41) filed
during
the pendency of these proceedings and summarized in
the
Union's Closing Brief as follows: On March 18, 1982, the Union
filed a
complaint with PERC alleging that by insisting to impasse
on
its Management Rights proposal that the Union waive its rights
for the term of
the next collective bargaining agreement
to
bargain on mandatory bargaining
subjects not covered
in the
agreement,
and that by pressing its demands for such a waiver in
this
proceeding, the City violated RCW 41.56.100 (Union Exhibit
41).
On March 30, 1982, the Executive Director of PERC issued
his
preliminary ruling in the matter as follows (Attachment G to
Union's Closing Brief):
Assuming
for purposes of this preliminary ruling
that all of the facts alleged are true and provable, it
appears that an unfair labor practice violation could
be found.
Subsequently, by its letter to the Executive Director of
PERC
dated
May S, 1982 (Attachment H to Union's Closing Brief), the
Union withdrew its complaint and agreed that
the Issue could be
decided
by this Arbitrator.
Finally, the Union
argues that the
City's proposal is
unjustified
by any evidence in the record. In
particular, the
comparative
data submitted by the City (City Exhibits 62 and 63),
reveals
no prevailing pattern among comparable cities.
A review
of
the examples set forth in City Exhibits 62 and 63, according
to the Union,
shows great diversity
of draftsmanship and
possibility
of interpretation. Few of the samples
are as broad
or
as sweeping as the City's proposal.
The
City, for its part, declares that the parties have come
to a
point in their bargaining relationship at which the Union
frequently
challenges the City's decisions on subjects which have
traditionally
been prerogatives of management. For
example, Chief
Sterling listed as examples the Union's
questioning of overtime
assignments,
his challenge of the City's determination on minimum
manning
and its threat to file a similar charge for the City's
decision
on the areas to be served by Medic I units.
These are
merely a
few examples, asserts the City, which underscores the
need
for a clear enumeration of Management Rights.
The
City claims that the reasonableness of its position is
demonstrated by the
presence of detailed
management rights
clauses
in the contracts of many similar-sized West Coast cities
(City Exhibit 62)
and of most Puget Sound area cities (City
Exhibit 63).
In
rebuttal to the Union's reliance upon the unfair labor
practice
charge which it
filed on the
final day of the
arbitration hearing (Union
Exhibit 41), alleging
the City
committed
an unfair labor practice by presenting its management
rights
proposal in interest arbitration, the City maintains that
the
determination of what subjects may properly be pressed to
impasse
and to interest arbitration is within PERC's
exclusive
jurisdiction. The City's position that this issue is
properly
before
the Arbitrator is supported by a May 26, 1982 letter from
the
Executive Director of PERC to the Arbitrator, written at the
City's request.
Opinion of the Arbitrator - Prevailing
Rights
The
first question that must be addressed with regard to the
City's Management Rights proposal is the
Union's argument that it
is
unlawful. If the Union's unlawful
argument were correct) the
Arbitrator would reject the City's proposal
on that ground.
The
Union's "unlawful" argument
is based upon: (1) its
belated unfair labor practice
charge (Union Exhibit
41)
contending
that the City's Management Rights proposal violates
the
Union's statutory rights and (2) a March 30, 1982 preliminary
ruling
by the
Executive Director of PERC.10 After carefully
reviewing
all of the evidence and argument on this point, the
Arbitrator has concluded
that the City's
proposal is not
unlawful;
he has reached this conclusion for the following three
principal reasons: (1) PERC's March 30,
1982 ruling on the
unfair
labor practice charge is preliminary, not a ruling on the
merits (see PERC's May 26,
1982 letter); (2)
this issue was
certified
to arbitration by PERC in accordance with statutory
procedures
without Union objection; in view of this, any doubts
about
the legality of this proposal must now be resolved against
the
Union; and (3)
based upon a
review of the Statute, the
Arbitrator is simply not persuaded that the
City's proposal is
unlawful. Finally, it must be noted, the Union has
agreed that
the
Arbitrator should decide this issue on the merits (Tr. 671-
672).
10 In addition to this March 30, 1982 post-hearing ruling from
PERC's Executive Director,
certain other post-hearing
evidence
was submitted (Attachments G and H to the Union's
Closing Brief and
a May 26,
1982 letter from PERC's
Executive Director to
the Arbitrator). Normally, such
supplementary
evidence would be disregarded. However,
since
both
parties submitted post-hearing evidence on this matter
and
neither party objected, the Arbitrator
has considered
this
evidence in arriving at his decision.
___________________
We
turn now to the merits of the City's proposal, which
expands
the current clause
by adding a
list of specific
management
rights exempt from negotiation during the term of the
Contract (City Exhibit 61). Quite clearly, City Management must
have
the right, during
the Contract term,
to exercise the
administrative
initiative and managerial discretion necessary to
carry
out its responsibility for running the Department on a day-
to-day
basis. On the other hand, the Union's
determination to
retain
its statutory right to bargain on mandatory subjects that
neither
party could foresee when the Contract was negotiated, is
also
understandable. Selecting a proper
balance between these
two competing objectives
has been a
continuing source of
controversy
over the years
in both the
public and private
sectors.
The Arbitrator
has carefully reviewed
the specific
provisions
proposed by the City. Several of these
provisions are
extremely
broad in scope, much broader than the language found in
most
of the management rights clauses which the City has offered
for comparison (City
Exhibits 62 and
63). Furthermore, the
City's proposal goes considerably beyond the
specific types of
problems mentioned by
Chief Sterling (Tr.
608:17-609:3).
Unfortunately, an arbitration proceeding
does not lend itself to
the type of
give-and-take necessary to
formulate a more
appropriate
provision. In its present form, the
Arbitrator must
reject
the City's proposal as overbroad.
The Union's proposal
regarding mandatory subjects
of
bargaining
is covered by the Statute. No
constructive purpose
would
be served by including its proposal in the Agreement.
Award - Prevailing Rights
The
changes proposed by the City and Union in the Prevailing
Rights provision are
denied.
REDUCTION AND RECALL ARTICLE VII
Proposals of the Parties
The
City proposes to modify the existing provision covering
reduction
and recall to permit it to retain key personnel in the
event
of any reduction in force based upon the following criteria
(City Exhibit 57):
1. The
needs of the Fire Department.
2. Qualifications.
3. Experience.
4. Performance.
5. Special
training or skills.
If, in the judgment of the City Manager or
her
designated representative, two
or more
firefighters
are deemed to be equal as a result of
the consideration of
the above criteria,
the
firefighter
with the
least amount of
seniority
shall
be selected for layoff.
The
Union proposes no change, thus retaining seniority as
the
sole criterion.
Positions of the Parties
The
City explains that, even though no reduction in force is
contemplated
during the term
of this Contract,
it must be
prepared
to meet that situation should it arise.
The importance
of
the City's medical emergency program is well established by
the
record in this case. paramedics
have been given extensive
training
to enable them to handle medical emergencies.
The City
must
be able to retain these valuable skills and its substantial
investments in them
should a lay-off
become necessary. In
addition,
the Department is developing a program to train certain
Fire Fighters to
deal with the
peculiar characteristics of
hazardous waste emergencies. The City
must also have
the
flexibility
in cases of lay-off to retain these special skills as
well. In rebuttal to the Union's claim that this
proposal is
unlawful, the
City has submitted a Memorandum of Authorities
(City Exhibit 60) which refutes that
contention.
The
Union offers the following principal arguments in its
opposition to the
City's proposal: (1)
RCW 41.08.080 and
Bellevue Ordinance No. 700 establish
seniority as the controlling
criterion for a
reduction in force;
the City's proposal
represents
an unlawful departure from these provisions; (2) the
City's proposal cannot be justified by
comparative data; (3) the
City has offered no proof to establish that
the current lay-off
provisions
are unworkable; and (4) the only rationale advanced by
the
City for its proposal was to retain highly trained medics in
place
of lesser trained senior employees; by rational selection
of
candidates for medic training, the City can easily maintain a
reasonable number of
junior employees who have
not undergone
medic
training.
Opinion of the Arbitrator - Reduction and
Recall
In the overwhelming
majority of collective
bargaining
agreements
in both the public and private sectors, seniority has
been adopted as
the sole criterion
covering lay-offs. The
principal
reasons are: (1) seniority (i.e. length
of service) is
a
completely objective criterion; when
subjective factors are
introduced, such as
those proposed by the City,
favoritism is
almost
always suspected when a senior employee is laid off and a
junior employee
is retained; this
can cause serious
dissatisfaction
in the work force that far outweighs any presumed
benefits
derived from alternative selection procedures; and (2)
in a lay-off
situation (contrasted with a promotion,
when
subjective
criteria are often used in addition to seniority),
current
incumbents are presumably capable of performing the work
in a
satisfactory manner.
The foregoing reasons
for using seniority
as the sole
criterion
to determine lay-offs are just as applicable to the
City's Fire Fighters with one exception --
paramedics. The City
has
advanced persuasive reasons for retaining Paramedics in the
event
of a lay-off. Their special skills and
training are vital
to
provide emergency medical
services both to
the City of
Bellevue and, by contract, to adjoining areas with a combined
population
of approximately 144,000 persons. The
City should
have
the discretion to retain sufficient Paramedics to meet the
needs
of this critical medical program.
Finally, the Arbitrator has
carefully studied the Union's
illegality
argument and the City's rebuttal (City Exhibit 60).
He is convinced that a lawful provision can
be drafted.
Award - Reduction and Recall
Article
VII shall be modified to include a provision which
allows
the City to retain, out of seniority
order, sufficient
Paramedics to meet the needs of its
emergency medical services
program. This issue is remanded to the parties for
the purpose
of drafting a
suitable provision. The Arbitrator retains
jurisdiction
to resolve this issue if the parties are unable to
do
so.
AWARD
SUMMARY
Based
upon a careful consideration of all of the evidence
and
argument, it is the decision of the Arbitrator that:
1. Monthly Salaries: All bargaining unit employees
are awarded a $250 across
the board increase in
their monthly base salaries. The Paramedic pay
differential shall be
$200 per month.
Both
increases retroactive to January 1, 1982.
2. Cost-of-living Adjustment:
Effective January 1,
1983, the monthly
salaries of bargaining
unit
employees in effect December 31, 1982,
shall be
increased by the
percentage increase of the
Consumer Price Index,
adjusted for the
Seattle
area,
November, 1981 to November, 1982 (1967=100).
3. Hours of Duty: Article XII is amended by changing
the number"53.23" to read
"50.48" hours,
effective September 1, 1982.
4. Vacation Leave: Vacation
leave shall continue
unchanged.
5. Insurance
Coverage (Medical-Dental): The
City's
medical and dental insurance coverage proposal (as
set forth in City Exhibit 52) is hereby adopted
effective
January 1, 1982; provided, however, the
maximum
monthly dental premium paid by the City
shall
be $37.84.
6. Disability Leave and
Sick Leave for
Employees
Hired on or after October 1, 1977: The second
paragraph
of Article XXVIII (covering
LEOFF II
employees)
shall be amended by changing "one shift
off
with pay ti to "three shifts off with
pay". The
Union's
proposal for Supplementary Income
Replacement
insurance is denied.
7. Longevity vs. Performance Recognition Program:
The
Union's longevity proposal (Union Exhibit 20)
and the City's proposed Performance
Recognition
Program (City Exhibit 40) are both denied.
8. Communication Procedure: Article XXV is amended
by
adopting the City's proposal (City Exhibit 64)
in
place of the existing Contract language.
9. Prevailing Rights: The changes
proposed by the
City
and Union in the Prevailing Rights provision
are denied.
10. Reduction and Recall:
Article VII shall
be
modified
to include a provision which allows the
City to retain, out of seniority order,
sufficient
Paramedics to meet
the needs of
its emergency
medical
services program. This issue is
remanded
to the parties
for the purpose
of drafting a
suitable provision. The Arbitrator retains
jurisdiction
to resolve this issue if the parties
are
unable to do so.
HOWARD S. BLOCK
Impartial
Arbitrator
Santa Ana, California
June 30 1982
PUGET
SOUND CITIES (EXCLUDING SEATTLE) WITH FIRE
DEPARTMENTS
SERVING 25,000 OR MORE POPULATION11
Fire
Fighters
Salary
Top-Step Hours
AUBURN $
2,146 49.3
BELLEVUE 2,256 50.48
BREMERTON 2,024 52.31
EDMONDS n/a 48.0
11 The
Bellevue Fire Department
provides fire suppression
services to a
population of approximately
95,000 people,
including
contract areas served (see City Exhibits 9, 20 and
21,
and the post-hearing Affidavits of Ron Pedee and
Cabot
Dow).
_______________________
EXHIBIT
A