And
City of
Interest Arbitration
Arbitrator: Janet L. Gaunt
Date Issued:
Arbitrator: Gaunt; Janet L.
Case #: 06811-I-87-00162
Employer: City of
Date Issued:
IN
THE MATTER OF THE ARBITRATION
BETWEEN
CITY OF
)
and ) INTEREST
ARBITRATION
) OPINION
AND AWARD
1604, INTERNATIONAL ASSOCIATION ) JANET L. GAUNT
OF FIREFIGHTERS, AFL-CIO, CLC )
____________________________________ )
PERC Case No. 6811-I-87-162
AAA Case No. 75 390 0125 87
Appearances:
For
the
Webster,
Mrak & Blumberg
For
the City: Janet Garrow, Esq.
Arbitration Panel:
Neutral
Chair: Janet L.
Gaunt
Union
Representative: Michael Duchemin
City
Representative: Richard L. Kirkby
TABLE
OF CONTENTS
Page
I. Introduction 1
II. History
of Collective Bargaining 2
III. Applicable
Statutory Provisions 4
A. Constitutional/Statutory Authority of
Employer 6
B. Stipulations of the Parties 6
C. Comparable Employers 7
D. Cost of Living 17
E. Interim Changes 18
F. Traditional Factors 18
IV. Issues 21
A. Article I
- Definitions 21
B. Article VII
- Reduction, Recall and Discipline 25
C. Article VIII
- Vacancies and Promotions 32
D. Article X
- Educational Incentive/Longevity Pay 39
E. Article XI
- Overtime 41
F. Article XII
- Hours of Duty 52
G. Article XIII
- Shift Exchanges 59
H. Article XVI
- Holidays 65
I. Article XVII - Vacation Leave 71
J. Article XVIII
- Funeral/Emergency Leave 77
K. Article XX
- Prevailing Rights 80
L. Article XXIV
- Grievance Procedure 87
M. Appendix A 93
N. Retroactivity 120
Award 121
I. INTRODUCTION
This interest
arbitration was initiated
pursuant to RCW
41.56.450
et. seq. to resolve certain
bargaining issues which
remained at impasse following negotiations
and mediation. As its
representative on
the three (3)
member Arbitration panel, the
was selected as Neutral panel Chairperson
(hereinafter "Chair").
An
initial four (4) days of hearing was conducted on October
28-31, 1987 in Bellevue, Washington. Because of the large number
of unresolved issues at the outset of the
hearing, three addi-
tional
days became necessary. These were held
on January 20-22,
1988 at
the same location.
The
James
Webster of Webster,
Mrak
& Blumberg.
Attorney
Janet Garrow represented
the City. The hearing
was
transcribed by a court reporter.
At the
outset of the
hearing, the City objected to the
Union's
partisan arbitrator, Michael
Duchemin,
serving as a
witness
(Tr.
which states
in relevant part: "No
member of the arbitration
panel may present the case for a party to
the proceedings." After
considering
the respective arguments of the
parties, the Chair
interpreted 41.56.450
as precluding partisan
arbitrators from
serving
as an advocate
arguing one side's
case but not
from
serving as a witness (Tr.
At
the hearing, both sides had an opportunity to make opening
statements, submit documentary evidence,
examine and cross-examine
witnesses
(who testified under oath) , and
argue the issues
in
dispute.
Following the completion
of testimony, the
parties
elected
to make closing
argument in the
form of post-hearing
briefs which were timely mailed and received
by the Chair on April
6,
1988. The record in this case is
voluminous, covering over
1,500 pages of transcript and over 300
exhibits. As will be seen
from the discussion herein, numerous issues
were submitted. Con-
sequently,
the parties waived the thirty (30) day statutory time
limit for a decision.
By
agreement of the parties, the Chair drafted the prelimi-
nary text of
an Award which was then reviewed
with the Panel
Members
and the parties'
counsel, who were
invited to note
omissions or
suggest corrections.
Following that consultation,
these written findings and determination of
the issues in dispute
were finalized by the Arbitrator.
II.
HISTORY OF COLLECTIVE BARGAINING
The
parties have been engaged in collective bargaining for
the last fifteen years. There have been two prior interest arbi-
trations;
one in 1980 and one in 1982. The term
of the parties
most recent collective bargaining agreement
was January 1, 1984
through December 31, 1986. In mid-1986, they began negotiations
for a successor agreement.
During
those negotiations, the parties agreed upon a number
of changes to the 84-86 collective
bargaining agreement. The City
shortened the time for compliance with a
union shop provision from
ninety (90) to thirty (3) days; expanded
work out of class pay;
expanded
the scope of funeral
leave; added a safety committee
forum; established a communication procedure
to discuss matters of
general
concern to the
bargaining unit including
significant
changes not
included in the Agreement
that affect the
rights,
privileges and working conditions of the
unit; agreed to pick up
100% of insurance rate increase; doubled
life insurance benefits;
improved the insurance bank for on-the-job
injury; added a bonus
leave provision for good attendance; and
provided for a cash out
of accrued sick leave at 10%. Ex. 9.
Numerous issues remained
unresolved , however.
By
letter dated March 27, 1987 the Executive Director of PERC
certified
the parties impasse
on such issues
and directed
interest arbitration. The major certified issues include:
Article I -Definition
of "Base Pay"
Article VII -Reduction,
Recall, and Discipline
Article
VIII -Vacancies and
Promotions
Article
X - Education
Incentive Pay/Longevity Pay
Article
XI - Overtime
Article
XII - Hours of Duty
Article
XIII - Shift Trades
Article
XVI - Holidays
Article
XVII -
Vacation Leave
Article
XVIII - Funeral/Emergency Leave
Article
XX - Prevailing Rights
Article
XXIV -
Grievance procedure
Article
XXX - Term of Agreement
Appendix
"A" - Monthly Salaries
Appendix
"C" - Longevity
Ex.
1. Numerous sub-issues are
presented within each of these
unresolved Articles. The parties
subsequently agreed that the
term of the contract shall be two years,
i.e. January 1, 1987 -
December 31, 1988.
III.
APPLICABLE STATUTORY PROVISIONS
The
panel's authority arises out of RCW 41.56, which pre-
scribes binding arbitration for uniformed
personnel upon declara-
tion
by the public Employment Relations Commission
("PERC") that
an impasse in bargaining exists. The legislative purpose in pro-
viding for interest arbitration was to
substitute an "effective
and adequate alternative means of settling
disputes" in place of
strikes by uniformed personnel in order to
ensure dedicated and
uninterrupted public service. RCW 41.56.430.
In
making its determination, the panel
is directed to be
mindful of the foregoing purpose and to take
into consideration
the following factors.
(a) The constitutional and statutory
authority of the
employer;
(b) Stipulations of the parties;
(c) . . .
(ii) For
employees listed in RCW 41.56.030(6) (b),
comparison of
the wages, hours,
and conditions of
employment
of personnel involved in the proceedings with
the
wages, hours, and conditions of employment of like
personnel
of public fire departments of similar size on
the
west coast of the United States.
However, when an
adequate
number of comparable employers exists
within
the state
of Washington, other
west coast employers
shall
not be considered;
(d) The average consumer prices for goods
and services,
commonly
known as the cost of living;
(e) Changes
in any of
the foregoing circumstances
during
the pendency of the proceedings; and
(f) Such other factors, not confined to the
foregoing,
which
are normally or traditionally taken into consider-
ation in the determination of wages, hours and condi-
tions of employment.
RCW 41.56.460.
The
interpretation and weighing of the various factors lie
within the sound discretion of the
Arbitration panel. In exer-
cising
that discretion, the panel concurs with the argument both
sides have made at one point or another
during the proceedings
that
the panel should endeavor to award the contract it feels
would otherwise have been negotiated by the
parties if they had
not been required to resort to interest
arbitration. In other
words, what would the Union have been able
to obtain at the table
if its right to strike had been
unfettered. In arriving at this
judgment,
the "total package" must be considered, not just the
issues submitted for interest arbitration.
We
adopt as well the principal that the
party seeking to
change an existing contract provision or
established past practice
should appropriately bear the burden of
persuasion. The Chair's
basic approach has been to first identify
current practice. A
proposed change is then evaluated in terms
of how significant a
departure
it represents from
that practice or the practice of
comparables.
The more significant the change and the less support
for it in the practice of comparables, the
more compelling the
reasons must be for making a change.
While
we recognize that parties during collective bargaining
will often seek to improve existing
procedures, we agree with the
view that whoever is proposing such a change
should appropriately
bear the burden of persuading the panel that
the existing language
or practice is unworkable or inequitable and
there is a compelling
need to change it. If
the arguments offered in support
of a
change do not clearly outweigh arguments in
favor of the status
quo then the status quo should be
maintained.
A. The Constitutional and Statutory Authority of
the Employer
The
City of Bellevue is a non-charter code city created con-
sistent
with Article XI, Section 10 of the Washington State Con-
stitution
and organized pursuant to Title 35A of the Revised Code
of Washington.
B. Stipulations of the parties
Because
of the number of issues in dispute, the parties have
stipulated to a waiver of the requirement
under RCW 41.56.450 that
the Neutral Chairperson issue
a written decision within thirty
(30) days following conclusion of the
hearing. The parties have
also stipulated that
those contract provisions agreed upon are
reflected in Exhibit 9. Further stipulations that relate to par-
ticular
proposals are discussed in the sections of this Opinion
dealing with those proposals.
C. Comparable Employers
Union
position: In order to foster
stability in the parties'
bargaining relationship, the Union argues
that the panel should
adopt the comparable cities selected by
Arbitrator Howard Block in
the parties' 1982 interest arbitration,
modified only to conform
to
intervening statutory amendments
and significant changed
circumstances.
Block
selected comparable employers from Puget Sound public
fire departments. His approach comparing to jurisdictions in
the
same locale is preferable because those jurisdictions
fall within
a common labor market, are affected by
similar economic variables,
and the comparisons are subject to more
accurate scrutiny because
local conditions are better known and comparison data is more
readily available.
The subsequent
statutory amendment of
RCW 41.56.430(c)
ratifies Block's approach. That
amendment made it clear that
comparisons with out-of-state employers was
not favored when there
are an adequate number within the Puget
Sound area. Although the
statute does now allow consideration of two
rural fire districts
outside
the Puget Sound
area, Arbitrator Block's
rationale
requires that they be disregarded.
Interest
arbitrators have held that as few as five employers
are an adequate number for comparison under
RCW 41.56.460(c) and
that a range of one-half to twice that of
the City is acceptable
for similarity of size. City of Seattle and Seattle police Man-
agement
Association, PERC No. 4369-1-82-98 (Beck, 1983); City of
Seattle and Seattle police Management
Association, PERC No. 5059-
1-84-114 (Krebs, 1984) . If one were to measure size in this case
by resident service population alone, there
are eight public fire
departments within a thirty (30) mile radius
of Bellevue that fall
within + 50% of Bellevue's size. This is more than an adequate
number of comparable employers.
The
Union believes, however, that size should be measured by
more than the single parameter of resident
service population.
The
circumstances of this
case warrant use of the
factors of
residents service population, assessed
value, number of alarms and
number of firefighters. By these parameters, the cities proposed
by the Union are sufficiently similar in
size to permit reasoned
comparisons under the statute.
The
employers found comparable by Arbitrator
Block. Redmond should be
substituted for Edmonds. It is significantly closer in size on
all
the factors mentioned,
physically borders Bellevue, shares
automatic and agreements and a common
dispatch center and jointly
participates in a hazardous materials
response program. At the
time of the Block decision, the Redmond
firefighters did not have
a collective bargaining agreement. They do now.
Therefore, sub-
stitution
of Redmond for Edmonds is appropriate.
In
light of the amendment
to RCW 41.56.460(c), which now
allows
comparison with fire
districts, four Puget
Sound fire
districts should also be added, i.e. King
County Fire Districts 14
and #39, Pierce County Fire District 12 and
Snohomish County Fire
District 11.
For all of the foregoing reasons, the Union argues
that
the following in-state
public fire departments should
be
selected
as the appropriate
comparable employees under
RCW
41.56.460(c).
City/District Population
Auburn 35,000
Bremerton 32,390
Everett 60,100
Kent 85,000
Kirkland 54,430
Redmond 50,000
Renton 35,360
Tacoma 158,900
KCFD
# 4 58,000
KCFD
# 39 81,000
PCFD
# 2 65,000
SCFD
# 1 48,600
Of these comparables, the Union argues that
heavier consideration
should be given to Tacoma and Everett
because Bellevue ranks right
between these two cities on the multi-factor
comparability analy-
sis.
They are the only two Puget Sound employers with economies
of similar size and maturity, have
discontinued the use of volun-
teer
firefighters like Bellevue and, in the case of Tacoma, is the
only other department with a Class II
rating.
City
Position: The City argues that size
is the statutory
comparator criterion, not proximity or location within a local
labor
market. This position is
supported by the
arbitration
decisions in Everett police Officers
Association and the City of
Everett (Abernathy, 1981); Kent police
Officers Guild and City of
Kent
(LaCugna, 1980) and City of Seattle and IAFF
Local 27 and
Seattle Fire Chiefs Association, IAFF, Local 2898 (Beck,
1988)
proximity, under subsection (f), can be a factor but not in the
determination of comparables under the
statute.
The
City selected comparable employers on the basis of three
factors:
(1) public fire departments (cities and fire districts);
(2) similar size in terms of population
served; and (3) west coast
states,
i.e. Washington, Oregon,
California and Alaska.
The
Union's comparables are fatally defective
because they failed to
meet these statutory criteria.
To
determine similar size," the City
focused on population
served.
Using a population range of + 30%, the City determined
that
only three Washington
State public fire
departments can
reasonably be described as similar in
size: Spokane County Fire
District No.
1 (88,000); the City of Kent (85,000);
and King
County Fire District No. 39 (81,000) . In the City's view, similar
size does not mean twice as big or half as
big. Such a range
would
be so broad
as to render
the statutory criterion
meaningless.
The
City notes that a close reading of the Block decision
indicates he fashioned his total award
regarding comparability on
the basis of RCW 41.56.460, factor (f), not
on the basis of factor
(c).
For that reason,
the Award is flawed and should
not be
followed.
Since the record indicates only
three in-state fire
departments are similar in size,
and three is not an adequate
number of comparators by the Union experts'
own admission, west
coast comparators must be considered.
Employing
the same process it used to identify in-state com-
parables,
the City applied a + 30% population range factor
to
public
fire departments in Oregon, California and Alaska. No
Alaska departments existed within this
range; two Oregon depart-
ments
did and forty-eight California fire departments. To reduce
the California sample to a manageable size,
the City took the five
departments closest in size to
Bellevue. The City thereby arrived
at the following list of proposed comparable
employers under RCW
41.56.460(c):
City/District Population
Spokane
County Fire District No. 1 88,000
City
of Kent 85,000
King
County Fire District No. 39 81,000
Eugene,
Oregon 106,000
Salem,
Oregon 93,300
Orange,
California
101,600
Hayward,
California 100,600
Inglewood,
California 100,500
Santa
Rosa, California 97,600
Oceanside,
California 96,000
Discussion: The first consideration, in the Chair's view,
is
the extent to which Arbitrator Block's prior
award should be given
deference.
The record certainly
indicates the parties
could
benefit
from some degree of
consistency and predictability in
their bargaining relationship. The Chair has carefully consid-
ered, therefore,
the Union's argument
that Arbitrator Block's
approach to selecting comparables should be
followed in this case.
I have concluded, however, that at least as
to comparables under
criteria (c) , the statute and intervening
circumstances require a
different result than that reached by
Arbitrator Block.
The most
significant change has
been the 1987
statutory
amendment.
prior to that amendment, RCW 41.56.460(c) provided for
the following comparison:
Comparison of the wages, hours and
conditions of employ-
ment
of personnel involved in the proceedings with the
wages, hours, and conditions of employment
of like per-
sonnel
of like employers of similar size on the west
coast of the United States.
(Emphasis added.) That was changed in 1987 to provide for the
following comparison for firefighters:
Comparison
of the wages,
hours, and conditions
of
employment of personnel involved in the
proceedings with
the wages, hours, and conditions of
employment of like
personnel of public fire departments
of similar size on
the west coast of the United
States. However, when an
adequate number of comparable employers
exists within
the
state of Washington,
other west coast
employers
shall not be considered.
(Emphasis added.) (Effective date July 26, 1987.)
Two
changes are of significance. First, the
parties agree
that as a result of the change from
"like employers" to public
fire departments," it became
appropriate to include fire districts
as comparators. Second, the Legislature changed the
predilection
for west coast comparators; prescribing
instead an initial focus
on whether
there are comparables within
Washington state as a
whole; not just on the west coast. Only if there are not enough
in-state comparables, does the focus return
to west coast compar-
ables. This change, in the Arbitrator's view,
reflects a Legisla-
tive
intent to prefer in-state comparables over out-of-state com-
parables so long as an adequate number of
comparable Washington
employers are available.
The
City has expressed a concern that the neutral Chair may
have some predisposition on the issue of
adequate in-state compar-
ables. It derives this concern from an
off-the-record conversa-
tion
between counsel in which the Chair speculated as to how PERC
might rule on an unfair labor practice
charge filed by the Union
because of the City's refusal to disclose
which employers it con-
tended were comparable. The Chair did not state this ruling would
be the one she would have arrived at. All
the Chair did was
speculate among fellow attorneys as to how
PERC was likely to rule
(Tr. 393) .
She noted as well that how PERC ruled on the ULP was
an issue distinct from those the Panel had
to decide.
The
Chair's predisposition is simply to follow the apparent
legislative intent regarding RCW
41.56.460(c). For the reasons
already noted, and purely as a matter of
statutory construction,
the
Chair has concluded
that the 1987
amendment to RCW
41.56.460(c) (ii) reflects a
legislative predisposition to
favor
in-state comparables; but only where an
adequate number exist.
In
order to determine whether an adequate number exist, one
must first determine what in-state employers
are similar in size.
As the City correctly notes, this is the one
criterion the Legis-
lature
left unaltered. It also left that
criterion undefined;
either as to the parameters of size, i.e.
what range is similar,"
or the elements of size, i.e. how size is to
be measured.
An examination
of arbitration decisions
submitted by the
parties reveals there is no uniform view as
to how size is to be
measured.
For awhile, multi-factor analyses was in vogue, but
many parties and arbitrators now seem to be
favoring serviced
population and assessed valuation as the
principal parameters for
measuring size. While the Chair does not mean to suggest that
a
multi-factor
analyses is never
justified, she does
believe
reliance principally on serviced population
and assessed valuation
of property protected is the better
approach. If either of those
parameters fall within a range judged "
similar" then an employer
can reasonably be considered of
"similar size" within the meaning
of RCW 41.56.460(c) (ii).
Some
arbitrators use the combined total for population and
assessed value. The problem with this approach is that
assessed
value in effect controls the result because
it tends to be such a
larger number than population. The Chair, therefore, feels it is
preferable to compare the two factors
separately.
Arbitration
decisions vary greatly as to how close in size an
employer must be to be "similar. The City acknowledges that
bands ranging from + 20% to + 36% have been
found reasonable. In
actuality,
size ranges even broader than
that have been found
acceptable. Arbitrator
Krebs in the
City of Seattle
(1984)
interest arbitration, for example,
accepted a range of no less
than one-half, no more than two times. Even the City of Renton
decision cited by the City does not stand
for the proposition that
"similar size" cannot encompass
employers half or twice as big.
In
that case, Arbitrator Snow
found the City of Edmonds (pop.
25,132)
comparable to the City of Renton
(pop. estimated at
50,000).
Edmonds was obviously half the size of Renton. 71 LA
271, 274.
Clearly,
parties and arbitrators have settled upon narrower
ranges than + 50% when a sufficient number
of comparators can be
found closer in size. The decisions by Arbitrators Beck, Krebs
and Snow, however, convince this Chair that
the phrase "similar
size"
in RCW 41.56.460(c) (ii) can appropriately be interpreted to
include a range of public fire departments
within one-half to two
times the size of the department to which
comparisons are being
drawn.
City of Seattle and Seattle Police Management Association,
PERC No.
4369-1-82-98 (Beck, 1983); City
of Seattle and Seattle
Police
Management Association, PERC
No. 5059-I-84-114 (Krebs,
1984); City of Renton, 71 LA 271 (Snow,
1978). While this con-
cededly
reaches to the outermost limits of what could reasonably
be construed as " similar size within the meaning of the statute,
the Chair is not convinced it exceeds those
limits.
In
this regard, the Chair finds persuasive the reasoning of
Union expert David Knowles regarding the law
of large numbers,
i.e.
that a decrease in a
numerical amount has a much larger
impact than an increase in the same
numerical amount. (Tr. 1369)
It stands to reason that if a department 50%
the size of Bellevue
is deemed similar, then a department to
which Bellevue stands in
the same ratio should also be deemed similar
on the upper end.
Looking at the range in terms of ratios,
therefore, rather than
percentages,
the Chair finds the maximum limits of a range of
"similar size" employers would
amount to those with populations of
50,327 - 201,310.
The
following in-state comparables fall within this range:
City/District Population
Tacoma 158,9001
Spokane
Co. Fire Dist. No. 1 88,000
Kent 85,000
King
County Fire Dist. No. 39 81,000
Pierce
County Fire District No.2 65,000
Clark
Fire District No. 5 60,000
Everett 60,000
King
County Fire District No. 4 58,000
Kirkland 57,500
Snohomish
Fire District No. 1 55,000
Redmond 52,000
The parties
have used identical
population figures for
Tacoma, Spokane, Kent, KCFD #39, PCFD #2,
Clark FD #5, KCFD #4.
There are minor discrepancies between the parties
figures for
Everett, and Redmond. The figures shown above are those the Chair
finds most likely accurate. The record reflects much greater con-
fusion regarding Kirkland and Snohomish FD
#1. Kirkland is shown
on Union Exhibit 23 as having a service
population of 54,430 but
on City Exhibit 111 as being 57,500. Then on Exhibit 124 it is
shown at 70,000. The Chair has decided to assume Kirkland's popu-
lation
is that shown on City Exhibit 111, i.e. 57,500.
Although
the Union
shows Snohomish at 48,600 on
Exhibit 303, the City
assigns a population of 55,000 on Exhibit
123, which is consistent
with the figure shown on the Washington
State Council of Fire-
fighters
1986 Employer Data (Ex. 124).
The Chair, therefore,
adopts as more accurate the 55,000 figure.
_______________
1Even
if one employed a size range of + 50%, the Chair would
find Tacoma appropriately included because
its assessed valuation
falls within that range even though
population exceeds it.
The
foregoing list of comparables presents good geographical
diversity
within the state;
includes both cities
and fire
districts
(as the statute now requires) , includes another city
with a Class II rating, and includes local
labor market employers.
In short,
it has a lot more to offer as meaningful comparators
than either of the lists proposed by the parties. Arbitrator
Block's approach gave controlling
weight to Puget Sound cities
without regard for size. The Chair agrees that consideration of
the practices of employers located within
one's local labor market
is a traditional factor appropriate under
subsection (f) of the
statute.
It should not be weighted to the exclusion of subsection
(c), however.
Testimony and
exhibits in the
record clearly support
a
finding that the foregoing list of eleven
comparables is an ade-
quate
number. Arbitrators applying RCW
41.56.460 have found as
few as five comparables to be acceptable
although more are clearly
preferred.
Union expert David Knowles testified that there is no
magic number; that based on his experience,
parties and arbitra-
tors
have worked with as few as five or as many as fifteen. Given
the number of in-state comparables, the
Chair finds applicable the
statutory mandate that other west coast
employers should not be
considered.
D. Cost of Living
Although the
statute provides for
consideration of "the
average consumer prices for goods and
service, commonly known as
the cost of living," the parties
agree for different reasons -
that this consideration should not be given
any weight in the
present case. The Union argues sufficient compensation
data is
available from comparable employers for 1988
and that data should
be favored in determining the wage rates for
the contract. The
City argues its 3% increase proposed for
each year of the contract
exceeds
the increase in
the applicable Consumer
price Index.
Therefore,
no claim for increased wages can
be based on
this
factor.
Both parties' arguments have merit.
While consideration
has been given to this statutory factor, in
the present case it
was not determinative.
E. Changes in Foregoing Factors During pendency of the
proceedings
Changes
in Section (c) of the statute have already been dis-
cussed.
Cost of living changes since the old contract expired are
discussed infra.
F. Other Traditional Factors
The
Chair finds that among the factors appropriately consid-
ered
under this section of the statute are the following:
1. Ability to Pay. The City of Bellevue is an affluent
community with a strong financial base and
sufficient resources to
bring
its firefighters into parity
with other cities.
Thus,
ability to pay is not in dispute. (Ex. 36)
2. Working Conditions. The Union acknowledges that
the
City maintains outstanding facilities for
its firefighters. Fire
stations have been constructed and remodeled
with an emphasis on
liveability;
the City's fire apparatus is state-of-the-art equip-
ment,
and the City enjoys a Class II insurance rating, the highest
rating
given in this
state. Chief Dan
Sterling asserts the
Department is the best in the state and
Union witnesses agreed.
While the Union feels there is always room
for improvement, its
members
concede they enjoy
excellent working conditions
in a
progressive, well managed City.
3. Wage/Benefit
packages of Other
City Employees. The
Chair concludes, as did Arbitrator Block in
the preceding interest
arbitration, that
internal comparisons to the wage/benefit
packages granted other City employees is
appropriate, especially
when dealing with a city-wide benefit like
group insurance.
4. Local Labor Market Comparisons. Comparisons within the
local labor market are traditionally taken
into consideration as
collective
bargaining. The reasons
for this have been
aptly
described by UCLA professor Irving Bernstein
as follows:
[Local labor market] 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 discrimina-
tion 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 on 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 administratively 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.
Exhibit 10, pp. 7-8, Quoting Arbitration of
Wages, Publications of
the Institute of Industrial Relations (Berkeley:
University of
California Press, 1954) at 54 (emphasis
added)
As Arbitrator
Block has previously
noted, Bellevue is
centrally located in the Puget Sound area,
which is an integrated
economic area with a common labor market. 2 The Chair agrees that
comparisons to wage/benefit packages for
departments within the
same labor market is fully sanctioned by RCW
41.56.460(f). The
one qualification this Chair would add is
that such comparisons
are of limited value if there is too great a
disparity in size.
_________________
2King,
Snohomish, Pierce Counties constitute the local labor
market recognized by the U.S. Bureau of
Labor Statistics for its
Consumer Price Index for the Seattle
metropolitan areas.
When
Arbitrator Michael Beck recently refused to supplement a
list of agreed comparables in order to
include certain cities rep-
resentative
of the
local labor market, he did
so because the
proposed additions were much smaller in size
than the agreed com-
parables.
In that case, the smallest comparable was Long Beach,
California with a population of
361,334. The largest local labor
market employer proposed by the Union was
Tacoma which is less
than one-half the size of Long Beach. City of Seattle and IAFF,
Local 27, p. 7 (March 1, 1988).
In the
present case, the
list of comparables
arrived at
already includes nine (9)
departments falling within the
local
labor market. The only other department with a Class II
rating is
included, as are a number of departments
that border on Bellevue,
e.g. Redmond, Kirkland, and some with whom
the City Fire Depart-
ment
has a close working relationship, e.g.
Redmond. It also
includes many of the departments from which
Bellevue gets a lot of
its firefighter applicants and from which it
hires. (Exhibits
141-143.)
The Panel concludes,
therefore, that the previously
described list of comparables sufficiently
allows for considera-
tion
of this factor (f) comparison and
additional cities should
not be added.
IV. ISSUES
A. Article I - Definitions
Proposals: The parties have agreed to a revised
definition
of overtime
(paragraph I) as follows: "Overtime means the time
worked
in excess of
the normally scheduled
hours of duty,
excluding:
1) any time worked in place of a Union official on
leave to attend Union business." In addition to that change, the
Union proposes elimination of the definition
of "Working Condi-
tions" (paragraph J) and addition of a new section
entitled "Base
Pay."
The City opposes both changes.
(1) Definition
of Base Pay
Union
Position: The Union proposes to add
a new section to
Article I defining Base Pay as: "any and all direct monetary com-
pensation
excepting overtime compensation."
The Union's proposed
definition would treat overtime under the
parties' agreement in
the same manner as the FLSA does only
liability for overtime would
still be incurred at the lower contractual
threshold. Presently,
there is a two-tiered system which is
confusing and difficult for
employees to police. The Union's proposal represents prevailing
area practice. For that reason, it should be adopted.
City
Position: The City proposes retention
of the current
definition
of base pay,
which is not
incorporated into the
contract.
Under current practice,
base pay is
calculated as
follows:
Monthly salary x 12 divided by annual work
hours equals
base pay up to the FLSA threshold. Thereafter, the FLSA
definition of base pay is used.
Exhibit 207.
This two-tiered" system
resulted from when the FLSA
was superimposed on the parties' existing collective bargaining
agreement in 1986.
Contract
overtime applies to all hours worked in excess of
normally scheduled hours of duty (excluding
hours worked in place
of a Union official on leave; FLSA overtime
applies to those hours
in excess of 40 hours per week (for day shift personnel) or in
excess of 204 hours in a 27 calendar day
period (for 24 hour shift
personnel).
The Union's proposal would dramatically expand the
manner
in which base
pay has historically
been defined and
administered.
The
Union's proposal should be rejected because neither state
nor federal law requires adoption of the
FLSA definition, and in
any event the Union's definition is not
coextensive with that in
the FLSA.
The FLSA definition contains a number of exclusions
that would not exist under the Union's
definition. The Union's
supposed housekeeping measure, therefore, is
really a thinly dis-
guised attempt to increase compensation in
the form of overtime,
pension, and MEBT benefits.
The
current two-tiered overtime practice is long-standing and
has imposed no hardships on employees. None of the Union's com-
parables or even any of the Washington comparables utilize the
definition proposed by the Union. The current definition of base
pay, therefore, should be retained.
Discussion: It
was clear at
the hearing that
even the
Union's own
witnesses were confused
as to the
effect of the
Union's
proposals. As the City correctly notes, the Union's
proposal does not simply adopt the FLSA
definition of base pay; it
is worded in a fashion that would appear to
include pay otherwise
excluded
under the -FLSA definition, e.g.
monetary compensation
received for vacations, holidays, and sick
leave. 29 CFR Part 778
(Ex. 209).
Thus, the financial impact on the cost of overtime,
which is calculated on base pay, would be
considerable.
There
is also considerable uncertainty as to whether compar-
able jurisdictions employ a definition of
base pay as broad as
that sought by the Union. Compare Exhibit 71 with 210-211. As
for the Union's argument that the change
would make the policing
of overtime requirements easier, the record
does not indicate this
has been a problem. The same two-tiered overtime calculation is
used for the Bellevue Police, the only other
employees who qualify
for the FLSA 7(K) procedure. It is relatively easy for employees
to contact payroll for clarification (Tr.
410). The Chair, conse-
quently,
finds the record unpersuasive that any change should be
made in the definition of base pay.
(2) Definition
of working Conditions
The
Union proposal to eliminate the contractual definition of
working
conditions is an outgrowth of its
positions regarding
other sections of the contract, particularly
Article XX (Prevail-
mg Rights).
The City has represented to the Union that the con-
tinuance
of the present "working
conditions" definition is not
intended
to operate as a waiver of the
requirement to bargain
working conditions not already discussed in
the contract. (Ex.
249)3
_______________
3As to such conditions, if any waiver arises it would be
through application of Article XX
(Prevailing Rights).
The
definition in Article I would, however, insulate the City
from a requirement of further bargaining as
to matters the parties
have already addressed in the contract. An obligation to discuss
such matters would still arise from Article XXV (Communication
Procedure) but formal collective bargaining
would not be required.
The Chair finds this provision appropriate
and, therefore, no com-
piling reason to change the status quo.
B. Article VII Reduction,
Recall and Discipline
The
Union proposes to add a new section to the parties' col-
lective bargaining
agreement to require
just and reasonable
cause
to discipline bargaining unit members.
The proposed provi-
sion, as amended at the hearing on January 22, 1988, reads as
follows:
Section
3. Discipline.
No employee
shall be disciplined
or discharged
except
for just and
reasonable cause. Disciplinary
measures
shall be corrective,
appropriate and not
unreasonably
severe. All disciplinary
notices or
memoranda
shall be disregarded
for disciplinary and
promotional purposes after twenty-four (24)
months.
Exhibit 7.
(1) Requirement of Just Cause for Discipline
Union
Position: The Union argues that a
requirement of just
cause for discipline is an almost universal
standard in United
States labor contracts. It is a standard enjoyed by firefighters
in most of the Union's proposed comparable
employees, and one the
City has agreed to in collective bargaining
agreements with two
other
unions. Without incorporation of an express
just cause
standard
into the contract, adequate
protection against unjust
discipline does not exist.
The
Bellevue Civil Service Commission considers appeal only
from discipline that involves discharge,
suspension or demotion in
rank.
It does not provide a remedy for lesser disciplinary action
or for matters such as reassignment from a specialist position
carrying premium pay or demotion during an
initial probationary
period.
Moreover, because of its close ties with City administra-
tors
and personnel, bargaining unit members lack confidence in the
Commission's impartiality. The Commissioners are appointed by the
City Manager; advised by the City Attorney's office, which
also
advises the Fire Administration regarding
the initiation of disci-
pline
and then prosecutes the case before the Commissioners, and
the
City's Assistant Personnel
Director serves as
secretary-
examiner of the Commission. Persons appointed to the Commission
may be high-minded individuals but they lack
the extensive experi-
ence
of the five respected arbitrators who the parties have agreed
to utilize in their grievance procedure.
The
Department's internal disciplinary
advisory board also
affords
less protection against unjust
discipline. The Chief
controls what matters this board hears; the Department appoints
two of the three board members; and
employees accused of infrac-
tions
do not have the right to hear the evidence against them or
confront their accuser; nor
is the board's recommendation even
binding on the Chief. A requirement of just cause, therefore,
should be added to the contract.
City
Position: The City proposes that
the status quo be
maintained.
It objects to the imposition of a parallel discipli-
nary procedure that would be cumbersome and
unnecessary. Pursuant
to Chapter 41.08 RCW, the City has been
mandated by the State
Legislature
to maintain a
Civil Service Commission
for fire-
fighters.
It cannot contract away this obligation; thus, it makes
no sense to duplicate it.
The
"just cause" standard proposed
by the Union is indis-
tinguishable
from the "for cause" standard of the Civil Service
Commission.
Apart from insinuation that the Civil Service Commis-
sion
is unbiased or unfair, Union witnesses could point to no
examples
of bias, prejudgment
or arbitrary decisions
by the
Commission.
It has never appealed a decision of the Commission.
The City
contends the Union's
proposed language is
non-
definitive,
ambiguous and misleading.
It greatly broadens the
scope of departmental action that could be
challenged through the
grievance procedure; matters historically
reserved to management.
The City is adamantly opposed to such an
unwarranted incursion
into a traditionally recognized area of
management prerogative.
The proposal would foster misunderstandings;
encourage otherwise
groundless appeals; and strain
management-labor relations in a
critical area.
The
City is especially concerned that the proposal appears to
be a blatant attempt to usurp the City's
ability to make reassign-
ments
within existing job classifications. The
City views this as
a potentially explosive issue, which could
threaten the carefully
structured and bargained premium
benefit. The City is equally
opposed
to expanding appeals
by probationary employees. If,
therefore, the Panel determines that a
parallel disciplinary pro-
cedure
is justified, the Union's proposal should be modified to
place some reasonable restrictions on the
scope of appeal.
Discussion: To the extent that the Union seeks the option
to
arbitrate
matters otherwise appealable to
the Civil Service
Commission,
its proposal does not represent any intrusion into
heretofore reserved management rights
because the City concedes it
would be subject to the same standard of
review in either forum.
Ex. 254, Section 5.04.05. While the record is not convincing that
results from appeals taken to the Commission
differs significantly
from results that would otherwise have been
obtainable in arbitra-
tion,
the record is persuasive that bargaining unit confidence in
the
process would be
vastly improved. When
bargaining unit
members are being disciplined because of
alleged misconduct, this
becomes an important consideration. The testimony is also persua-
sive
that this was a significant issue to the bargaining unit; one
they might well have struck over if accorded
that right.
Granting
a right to grieve lesser disciplinary actions (oral
warnings or written reprimands) clearly would
involve intrusion
into an area in which the City has
vigorously sought to maintain
sole discretion. Such a concession is not readily obtained at
the
negotiating table without some kind of quid
pro quo. Yet, in
return
for an increased
ability to seek independent review of
management action relating to disciplinary
matters, the Union has
been unwilling to recognize areas in which
the City should be able
to manage without intrusion by third
parties. The Chair finds
this is an obvious area for compromise.
Without
some concession from the Union in the area of pre-
vailing
rights, the Chair is convinced the Union
should not be
unilaterally granted the right to arbitrate
disciplinary matters.
As a quid pro quo for such concessions,
however, the Chair finds
compelling reasons to increase the scope of
review available to
bargaining unit members. In short, the record is persuasive that
compelling reasons exist to add a
requirement of just cause for
discipline or discharge in return for
changes in the area of the
City's prevailing rights.
If a just
cause requirement is added,
however, the Chair
argues with the City that the right to
grieve discipline or dis-
charge should not be extended to
probationary employees. Proba-
tionary
employees do not now enjoy a right to appeal (Ex. 254,
Section 4.04) and until they obtain
permanent status, the record
demonstrates no compelling reasons to change
existing practice.
The Chair
also finds the City's arguments persuasive that the
right to grieve disciplinary actions should
not be so broad as to
include non-disciplinary transfers and
reassignments that do not
involve demotion in rank. Further reasons for that are discussed
in connections with Appendix A.
The
second sentence of the Union proposal requires that dis-
ciplinary
measures be corrective, appropriate and not unreasonably
severe.
The just cause standard of review already incorporates
consideration of such matters, as well as recognizing that for
some types of offenses prior corrective
action is not required.
The Union's language contains no recognition
of the latter. The
Chair, therefore, declines to adopt it.
(2) Disciplinary
Notices
Union position: The
Union's proposed last
sentence of
Section 3 seeks to limit the City's reliance
on past discipline to
justify a particular disciplinary
action. After two years the
Union argues an employee will have either
improved or more severe
action will have occurred.
City
Position: The City regards the
Union's proposal as ill-
conceived even as amended. In the City's view, the proper admini-
stration
of discipline requires retention of disciplinary notices
and memoranda even after two years. It's required as well for
evaluation,
counseling and for the defense of lawsuits against
City personnel; which defense the City is
obligated to undertake
pursuant to RCW Chap. 3.81.
Adoption
of this proposal would seriously inhibit the City's
ability to carry out progressive discipline
and fails to recognize
any distinction in disciplinary action based
on the seriousness of
the offense.
It is unnecessary because the Civil Service Commis-
sion for
cause standard implicitly
recognizes that the
more
distant in time and the less severe a past
disciplinary action the
less weight it is accorded after time. Furthermore, few compar-
able jurisdictions have such a provision. This proposal accord-
ingly
should be rejected.
Discussion: This is an issue on which the City's
arguments
are more persuasive. While there may be a point in time when
prior disciplinary notices become too stale and
irrelevant for
reliance
in subsequent discipline,
arbitrators already consider
this when applying the just cause test which
the Chair has agreed
should be added to the contract. That test recognizes, however,
that there are also factual situations when
consideration of prior
discipline
is both illustrative
of a pattern and
appropriate.
While it is true many employees may outgrow
prior disciplinary
problems, there are nevertheless cases where
problems recur on an
infrequent basis but they still recur and
not necessarily within
two years.
Another
problem with the Union proposal is that
it would
apply not just to use for further
disciplinary action but also to
promotions.
If two individuals are up for promotion, one of whom
has a record of repeated misconduct spaced
more than two years
apart and another with an unblemished
record, the Union's proposal
would preclude the candidate with the clean
record from receiving
any credit for that. The Union has not met its burden of proving
this is appropriate.
For
all of the foregoing reasons, the Chair adopts the Union
proposal that a just cause requirement be
added to the contract
with a right of appeal through the grievance
procedure in lieu of
appeal to the Civil Service Commission. Necessary revisions to
the parties' existing procedure are
discussed in connection with
Article XXIV. Since the second and third sentences of the
Union's
proposal regarding Article VII (which presently addresses Reduc-
tions and
Recall for nondisciplinary reasons)
are not being
adopted,
and adoption of
the just cause
requirement is found
appropriate in part as a quid pro quo for
changes in the prevail-
mg rights language of the contract, the
revision necessary to add
a just cause requirement should be made to
Article XX (Prevailing
Rights) not to Article VII. The Chair, therefore, finds no change
should be made to Article VII.
C. Article VIII
Vacancies and Promotions
Article
VIII in the expired contract consists of
just the
following sentence: "When a permanent vacancy occurs in the
bar-
gaining unit, it shall be filled in
accordance with the rules and
regulations set forth by the Bellevue Civil
Service Commission."
Exhibit 6.
Proposals: The
Union proposes to
amend the foregoing
sentence to indicate that the rules
applicable are those in effect
as of the effective date of the new
contract. It proposes a new
paragraph
setting forth a
Modified "Rule of
One" that would
require the City to promote the highest
scoring candidate except
where the City can demonstrate that the
second or third highest
candidate is best qualified.
The
City proposes replacement of the current language with a
Section 1 stating that "personnel
actions" (including vacancies,
promotions and disciplinary matters) shall
continue to be governed
by the Bellevue Civil Service Commission
rules. It proposes the
addition of a Section 2 stating:
Nothing contained in this Agreement shall
supercede any
matter delegated to the Bellevue Civil
Service Commis-
sion
by State Law or by Ordinance, Resolution or laws of
or pertaining to the City of Bellevue and
such Commis-
sion
shall continue to have authority over the subjects
within the scope of its jurisdictions and
authority.
(1) Incorporation
of Civil Service Commission Rules
Union
Position: The incorporation of
these rules is neces-
sary
to require the City to bargain with the Union over changes to
its
hiring and promotional
practices. The manner
of filling
vacancies and making promotions to
bargaining unit positions is a
mandatory subject of bargaining yet during
the pendency of these
proceedings the Civil Service Rules
governing such matters have
been
unilaterally changed over
objection of the
Union thus
resulting
in an unfair labor practice
complaint that is still
pending.
Adoption
of the Union's proposal would fix the
procedures
during the term of the parties' agreement
and any proposed changes
may be addressed in negotiations this
summer. It would also allow
the Union to utilize the grievance procedure
to police compliance
with the Civil Service Rules. The Union lacks confidence in the
Civil Service Commission to do this,
especially since the Commis-
sion
does not recognize the Union in its proceedings as represen-
tative
of the bargaining unit.
City
Position: The Union's proposal would
interfere with the
legitimate role of the Civil Service
Commission; depriving it of
jurisdiction and effectively freezing such
rules during the term
of the contract. While there is nothing to preclude the City
from
negotiating personnel rules with the Union,
such process merely
duplicates the efforts of the Commission and
can lead to confusion
and uncertainty.
This
state has a long and special tradition of Civil Service
for police and fire employees. While perhaps due for some amend-
ment,
this tradition has for the most part worked well; serving
the interests of citizens, employees and employers. The City,
therefore, objects to piecemeal elimination
and erosion of Civil
Service through a
bargain-for-what-looks-good-at-the-time
approach.
If major changes are to be made, the City believes this
should be done at the legislative level
where the interests of
citizens, employers and employees can be
taken into account.
There is
no merit to
the Union's unfair
labor practice
charge.
Although the Commission was
created to substantially
accomplish the purposes of RCW Chapter
41.08, it performs the same
functions and has the same purpose and
intent as boards created by
RCW Chapter 41.06. No statute requires bargaining by any Civil
Service Commission created under and for the
purposes of RCW 41.08
with any organized group of employees. Further,
the Union had
ample opportunity to propose or resist any
rules changes which
were
contemplated by the
Commission. The record,
therefore,
provides no reason to abandon the Civil
Service Commission format
at this time. The change sought is neither practical nor neces-
sary
and should be rejected.
Discussion: The parties disagree as to whether a duty to
bargain over this issue even exists. In the City's view, matters
delegated to the Civil Service Commission
are exempt from collec-
tive
bargaining under a proviso in RCW 41.56.100.
To date, how-
ever, PERC rulings hold to the contrary. IAFF, Local 1604 v.
City of Bellevue, PERC Decision No. 839
(PECB, 1980); IAFF, Local
1604
v. City of Bellevue, PERC
Decision No. 2788 (Preliminary
Ruling, 1987) . In the Chair's view, this issue should be
left for
PERC and the courts to decide. It need not be resolved by the
Chair because, even assuming a bargaining
obligation exists, the
record is not convincing that unilateral changes in applicable
Civil Service rules regarding vacancies and
promotions should be
precluded during the term of the contract.
As
the moving party on this issue, the Union bears the burden
of persuasion. In part because of changes being made
elsewhere in
the contract, the Chair finds this burden
has not been met. (See
the discussion regarding Articles VII, XX,
and XXIV.) As the City
has noted, there is a long tradition of
Civil Service jurisdiction
over certain police and fire personnel
actions. That tradition is
reflected in the fact that most all the
comparables do not have
contract language that would preclude
changes in Civil Service
Rules applicable to vacancies/promotions the subject matter of
this article. Exhibits 197, 198.
What the Union is seeking,
therefore, would appear to be a dramatic
departure from what has
been customary both in the City of Bellevue
and in other jurisdic-
tions. The Chair, therefore, is reluctant to adopt
such a change
without more compelling reasons to do so
The
record is not persuasive that the Union lacks an adequate
opportunity to provide input
into any proposed changes to the
Civil Service Commission rules and regulations. While the Commis-
sion
may not recognize the Union for the purpose of any bargaining
obligation, the record indicates that the
Union nevertheless gets
notice of proposed changes in the Civil
Service rules and has an
opportunity to provide input. (Tr. 516)
The
Union correctly notes that
an opportunity to provide
input is not equivalent to a requirement of
collective bargaining
prior to any implementation of changes. For the reasons discussed
in connection with Article XX (Prevailing Rights), however, the
Chair does not find the record persuasive
that this is an area in
which the City's latitude to make changes
should be circumscribed.
If
the Civil Service Commission makes
changes which the Union
feels
are inequitable or
unjustified, specific proposals
to
reverse or modify those changes can be
presented when the contract
is renegotiated. There are not compelling reasons in the
record,
however, to preclude the making of any
changes simply because they
hadn't been previously bargained. The Union's proposed amendment
to Article VIII is, therefore, not adopted.
Since
Article VIII is entitled "Vacancies
and Promotions,"
the Chair finds the record persuasive that
the present language
should be amended to read: "Vacancies and promotions shall be
governed
by the rules
and regulations adopted by the
Bellevue
Civil Service Commission." The City's proposed Section 1, how-
ever, would include a reference to
disciplinary actions. For the
reasons discussed in connection with Article
XXIV, that reference
is not adopted. Nor is the City's proposed Section 2.
The
City's proposal would have the effect of giving priority
to Civil Service rules and regulations, even
as to matters speci-
fically
dealt with in the collective bargaining agreement. This
reverses the existing rule that where there
is a conflict, the
collective
bargaining agreement should
prevail. Rose v.
Erickson, 106 Wn.
2d 420, 424 (1986) . The proposal would also
appear to be grounded in the view that
matters delegated to the
Civil Service Commission are exempt
from collective bargaining
under
the proviso of RCW 41.56.100. As
noted earlier in this
decision, supra p. 35, PERC precedent holds
to the contrary. The
City's proposed Section 2 is, therefore, not
adopted.
(2) Rule of Three vs. Modified Rule of One
Union
Position: Although the Chief has
usually selected the
top scoring candidate for promotion, there
have been exceptions.
When a lower scoring candidate has been
selected, the Chief has
not articulated his reasons for so doing and
morale has suffered.
Articulation of the reasons is necessary so
the employee can work
to improve his or her future prospects for
promotion.
The
Union proposal does not eliminate the "Rule of Three," it
merely requires that the superior
qualifications of a preferred
lower candidate be demonstrated. In light of the applicable one
year
probationary period, any
restriction on arbitrary
choice
still leaves management an adequate
opportunity to evaluate the
performance of the top scoring candidate.
City
Position: -The Union proposal is
neither practical nor
necessary.
It would essentially
"gut" the Rule of Three
by
placing the burden of proof on the City to
demonstrate that a
lower scoring candidate is best
qualified. The City believes this
an unreasonable burden.
In
Chief Sterling's entire tenure as Chief since 1975, he has
chosen not to select the top person on the
list on one occasion.
There is no historical justification,
therefore, for imposing the
rule sought, especially since the Rule of
Three is the norm rather
than the exception in comparable public fire
departments. The
City's West Coast and Washington comparables
indicate a 7-3 and 8-
2 majority, respectively, against use of the
Rule of One. The
Union, therefore, has failed to demonstrate
compelling reasons why
the status quo should be changed.
Discussion: The
"Rule of Three"
currently adopted in
Bellevue's Civil Service Rules allows the
Fire Chief to select any
of the three top scoring candidates on the
allocation eligibility
list for promotion (or top twenty-five
percent if that is larger).
This allows the Chief to interject his
professional judgment into
the selection and promotion of employees and
to make appointments
necessary to meet department EEO
commitments. The City is under-
standably reluctant
to lose this
discretion and the
record
indicates the vast majority of the
comparable jurisdictions follow
the Rule of Three. Only KCFD 439 and Spokane #1 do not. (City
Exhibits 255-257.)
The
record does not indicate that to date the Chief has exer-
cised
the authority he has retained in an arbitrary or capricious
manner.
The concern that it is bad for morale for members of the
bargaining unit to be passed over without
knowing why is certainly
a
legitimate one. That
can be rectified
by inclusion of a
requirement that in such cases the
Department will provide the
highest scoring candidates with an
explanation. The Chair agrees
with the City, however, that a compelling
reason to depart from
the Rule of Three has not been demonstrated.
D. Article K - Educational Incentive/Longevity
Pay
Union
Position: The Union proposes the
addition of longevity
pay to the contract as a way of
acknowledging the value of experi-
enced
employees. Such pay will help
compensate as well for the
limited or upward mobility in the fire
service. For this reason,
longevity
pay is well
established in comparable
Puget Sound
cities.
The average
net impact of the
Union's proposal would
be
2.82~; only slightly greater than the
average impact (2.53%) for
the Union's comparable employers and less
than the average (3.09%)
for Everett and Tacoma.
City
Position: The City objects to the
addition of longevity
pay on the grounds that educational
incentive pay was previously
negotiated in lieu of that. When the City conceded its Education
Incentive
Program years ago,
it tied that
concession to the
forsaking of longevity. Education Incentive has been available to
firefighters at a low of 2% to a high of 3
1/2% per year from
their first day of employment. Once officer rank is obtained, the
benefits increase to 5%. While it is true these benefits don't
accrue
automatically, an employee
has to obtain the necessary
education, that was part of the
trade-off. In return for that
effort by the employee, a benefit is received that excludes in
present value the longevity premium the
Union seeks.
The trade-off
in prior negotiations was
recognized in the
1980 interest arbitration award of
Arbitrator John Champagne when
he denied the Union's requested addition of
longevity. Arbitrator
Block
likewise found it
inappropriate to add longevity to the
wage/benefit package. The City does not believe further payments
for
longevity are beneficial,
warranted or reasonable.
With
regard to comparables, the City notes that
the majority of in-
state comparables have either longevity or
education pay but not
both.
Discussion: The record does indicate that longevity pay
is
customarily included in the contracts of
other departments. Among
the selected comparables, for example,
eight (8) out of eleven
(11)
provide longevity pay.
Only one of
those offers both
longevity and education pay, however. Prevailing practice is not
to pay both.
Members
of the bargaining unit already enjoy increased mone-
tary
benefits that automatically accrue with additional years of
employment.
Longer tenure results in greater vacation accrual and
increased MEBT for example. In comparison to most other compar-
ables,
Bellevue firefighters have more promotional ranks they can
move into as they acquire increased
seniority; more specialist
assignments;
and experienced firefighters benefit more regularly
from the work out of class premium. (Tr. 379, 706) Thus, recog-
nition
and rewards for greater experience are already contained in
the contract. In light of this, the City's argument is
persuasive
that it bargained educational incentive pay
into the contract in
lieu of longevity pay, and there is no
compelling reason now to
add the latter. Adoption of the Union's proposal would
eliminate
the consideration received by the City when
it agreed to add the
educational incentive pay. The Chair, therefore, finds no change
should be made to Article X.
E. Article XI - Overtime
Proposals: Both sides propose a number of changes in
the
current Article XI
regarding overtime. The
Union's proposals
seek:
(1) to require overtime for
training requested by the
Department outside regularly scheduled hours
of duty; (2) to pro-
vide
for compensatory time off;
and (3) to change the current
practice of assigning overtime and
incorporate that practice into
the contract. The City proposes: (1) to change the current pro-
cedure
for assigning overtime and (2) to exempt
the positions of
Medical
Services Coordinator and
Training Coordinator from
overtime.
(1) Training
Outside Regularly Scheduled Hours of Duty
Union
Position: The Union proposes to add
the following new
provisions to Article XI:
C. Any employee requested, required or assigned
by the employer or his representative to
attend schools,
conferences, seminars, meetings or training
sessions of
any kind outside of his regularly scheduled hours of
duty shall be paid at the overtime rate of
pay for the
actual
time spent. When
the employer requires
an
employee to attend fire service schools,
emergency medi-
cal training, or engage in other travel, per
diem and
lodging
shall be the responsibility
of the employer.
When possible, payment of authorized
expenses shall be
made in advance.
D. Employees who
attend E.M.T. training
or
testing
while off shift shall be paid at the overtime
rate of
pay. All employees
in paramedic training
programs shall be paid at the overtime rate
of pay for
any time over the
regularly scheduled average
weekly
hours of duty.
Exhibit 7.
The Union proposal is directed primarily at the hard-
ship caused by the City's failure to pay
overtime to firefighters
in paramedic training. It would also apply to any other training
required by the Department outside regular
scheduled shifts but
not to home study.
Paramedic trainees
undergo twelve months
of training in
Seattle, first in the classroom, then
responding to calls within
Seattle paramedics. The work they perform should be recognized as
work and compensated at overtime rates. Both comparable Puget
Sound cities with paramedic programs provide
extra compensation to
trainees.
Tacoma trainees receive their regular salary for fewer
than forty (40) hours work at a community
college. Everett fire-
fighters get their regular wage plus $350
per month. Bellevue
firefighters should also receive additional
compensation.
City
Position: During the one year period that Bellevue
firefighters
are enrolled in
the Harborview
Hospital training
program,
the City receives
no services, yet
the firefighters
receive their full regular salary with all
benefits. In addition,
the City pays all costs of training,
including a fee of approxi-
mately
$8,000 per candidate. Upon completion of
the training, the
paramedic
is guaranteed a position at
premium pay. The City
receives no services and frequently incurs
overtime due to the
reduction in manpower available to meet
minimum staffing. Because
the
City does not
control the number of hours
during which
trainees work or study, the granting of this
proposal would expose
the City to potentially excessive and
uncontrollable costs.
While the City undeniably benefits, the benefit
runs both
ways.
Firefighters have an opportunity to expand their career
opportunities and increase their monthly
compensations. Admission
into the program is highly competitive and the opportunity to
become
a paramedic is
one reason why many
firefighters seek
employment within the City. None of the comparables suggested by
either side pay overtime for paramedic
trainees. In fact, some
departments have decided to hire trained paramedics from other
jurisdictions rather than incurring a year's
lost productivity and
the expenses of training paramedics
in-house. The Union proposal,
therefore, is unjustified and should be
rejected.
Discussion: The training of Bellevue paramedics is
already
an expensive proposition. It is also a significant benefit for
which it is not unreasonable to expect some
sacrifice which ulti-
mately
is rewarded in the increased compensation that paramedics
receive.
While the testimony is persuasive that participation in
the program is both challenging and
exhausting, it is not persua-
sive
that the Union's overtime proposal is justified. Rather the
record
suggests that such
a requirement might
well price the
program Out of the Department and make the
hiring of trained para-
medics from outside more attractive. This would be to the bar-
gaining unit's ultimate detriment.
The
increased earnings opportunity as a paramedic is a bene-
fit
that distinguishes the Bellevue Department from many other
comparables where that opportunity either
does not exist or where
there are far fewer Positions
available. None of the selected
comparables pay overtime for the training
(Exhibits 219-220) . At
best, a few pay a monthly stipend, which
is probably a better
approach
because it represents
a fixed cost
that a granting
employer can budget for. In comparison, the Union's approach in
seeking
overtime would subject
the City to costs outside
its
control.
The record, therefore, is clearly not persuasive that
the Union proposal should be adopted.
The
prior contract already provides that employees who attend
school or conferences off shift at the
Chief's request will be
paid at a straight time rate for time spent
in the classroom. The
Union proposal would require overtime. The City has indicated its
primary
concern with this
is the conciseness
of the Union's
language.
As written, it could require overtime when by virtue of
attendance at a school or conference the
employee works a 40 hour
week when he or she would otherwise have
been scheduled for more
hours
than that. Even though the
employee worked considerably
less that week, overtime liability would
attach because some of
the hours fell outside of hours the employee
would normally have
worked.
(Tr. 992)
The
City is also concerned that the proposed language could
be read
to require overtime where
bargaining unit members are
attending
classes for certification
or to meet
educational
requirements for advancement. The Chair finds the City's concerns
persuasive that enough uncertainty exists as
to the effect of the
Union proposal in this regard that it should
not be adopted. The
issue should be left to the parties for
further discussion to see
if they can agree upon language that would
alleviate the City's
concerns.
The record
is fairly limited regarding the effect of
the
to engage in travel, "per diem and
lodging shall be the responsi-
bility
of the employer. U The City currently
pays per diem to
employees who travel on City business and
usually prepays. It has
indicated it intends to continue this
practice. It is not clear,
therefore, whether the
just incorporate present practice or effect
a substantive change
in that practice. The Chair is not persuaded, therefore, that
the
Union's
proposed language should
be incorporated into
the
contract, especially since the issue of
travel expenses would seem
more appropriately dealt with in some other
Article.
(2) Compensatory
Time
Union
Position: The
provision that would allow firefighters the
option of taking con-
pensatory
time off in lieu of overtime:
E. Compensatory time shall be defined as
time off
at the rate of one-and-one-half (1-1/2)
times the number
of overtime hours worked. Compensatory time shall be
used
within twelve (12)
months of the period
during
which it is earned. Compensatory time in lieu of pay-
ment for
overtime shall be
at the request
of the
employee.
Employee requests for the scheduling of com-
pensatory
leave shall not be unreasonably denied.
Exhibit 7.
The intent of this proposal is to provide an addi-
tional
opportunity for firefighters to schedule time off to deal
with the burdens Of.stress.
The
Department's 40 hour employees and other City employees,
including police officers, are permitted
this option of compensa-
tory
time. The widespread acceptance of
compensatory time is
reflected
in FLSA amendments
that allows its
use (29 U.S.C.
5207(e)(l))
as well as in the practices of comparable jurisdic-
tions. Five of the
option as do King County Fire District Nos.
4 and 39 and Pierce
County Fire District No. 2. The Union proposal would provide a
significant benefit to employees with no
significant expense to
the City and should, therefore, be adopted.
City
Position:
Historically, compensatory time
has been
allowed for non-shift fire department
personnel because it was not
as disruptive to Department operations and
is subject to manage-
ment
discretion. Due to the nature of the
fire service and the 24
hour shift schedule, the City objects to the
Union proposal as
potentially a significant expense because it
removes discretion
from the City. Allowance of compensatory time off solely at
the
firefighters' discretion creates the need
for additional manpower
to fill in, often at overtime rates. This can lead to an expen-
sive
cycle of overtime work generating additional overtime needs.
There
is no limit in the Union proposal to the amount of comp
time that can be demanded and the
requirement that the scheduling
of compensatory leave not be unreasonably
denied has the potential
of generating numerous grievance since Union
witnesses indicated
that practically any denial would be deemed
unreasonable. It is
significant, therefore, that West Coast and
by a 9-1 majority retain employer discretion
to allow compensatory
time.
The record, therefore, does not support a change in the
status quo and the Union proposal should be
rejected.
Discussion: The bargaining unit has a meritorious claim
for
sufficient time off to deal with the stress
of an emotionally and
physically exhausting job. Employee preference as to when the
time off is received, however, should
properly rank second to the
City's legitimate operational needs. The Union's proposal does
not reflect this. It gives primacy to employee preferences as
to
when they take time off without regard for
the costs generated by
the timing of that leave. The City, understandably, resists such
an approach, as do the vast majority of the
selected comparables
that provide the option of compensatory
leave. While five of the
eleven comparables provide the option of
comp leave (Clark, KCFD
No. 4, KCFD No. 39, Pierce 42 and Redmond), 4
all but KCFD No. 4
retain discretion as to whether the time off
is allowed. (City
Ex. 222-223).
_______________
4The
nation of the contract reveals such leave is
limited to day shift
personnel.
Ex. 197, Article 7.3.
If the City
is allowed to retain
the discretion to deny
requests for comp time, then there exists no
persuasive reason in
the record why the possibility of taking leave in lieu of pay
should be denied. Instead, providing the option would appear
to
be in both sides' interests. The Chair finds the record persua-
sive,
therefore, that Article XI should be amended to allow for
the option of comp leave in lieu of monetary
overtime compensation
as follows:
Compensatory
Time Off: Subject to prior
approval
of the Department, employees entitled to overtime pay
may elect to receive compensatory leave at
the rate of
time and one-half in lieu of monetary
payment at the
same rate.
(3) Assignment
of Overtime
Proposals: The
contract
the current practice
of assigning overtime
with one
amendment which reads:
If no suitable employee can be secured for
an overtime
detail after the appropriate list(s) have been called
through completely one time, the employer
may mandato-
rily
assign the overtime detail to one
of the
first
three employees contacted by calling through
the list in
order a second time after giving
consideration to the
needs of the employees so contacted.
Exhibit 7. The
City proposes to incorporate only the following
language regarding the assignment of
overtime. (Exhibit 8)
A chief officer may ask for volunteers for
overtime or
may require overtime after receiving five
refusals to
accept an overtime assignment or after
contacting five
telephone
answering machines, or
any combination
thereof.
Union
Position: The Union proposed
revision is a concession
in response to the City's complaint that the
current practice is
too time-consuming. The City's proposal would allow for potential
favoritism
in the overtime assignment
process. No comparable
jurisdiction has such a provision. The current procedure is fair
and has worked well in the past. It should be incorporated into
the contract as modified by the
City
Position: The City feels the
contract needs to pre-
scribe some reasonable parameters regarding
the extent to which
fire department administrators must adhere
to a rotating list to
fill in for unscheduled absences of
bargaining unit members. The
time-consuming a process. Furthermore, the language re "giving
consideration to needs of employees " invites grievances and
second guessing. The City's proposal should be found
preferable,
therefore, as a more practical way of
addressing the issue.
Discussion: An Overtime shift for the basic firefighter
rank
is worth $420. (Tr. 1031)
The bargaining unit, therefore, has a
strong interest in trying to ensure that
overtime opportunities
are fairly distributed among members of the
unit. While the City
shares that interest, it has developed a
concern about the amount
of time the present procedure sometimes
requires before someone
can be found to accept an overtime
assignment.
The
present procedure is described in Section 12.04 of the
Department
Operating Procedures. When
there is an
overtime
assignment to fill, Battalion Chiefs proceed
to call members of a
platoon eligible to work the overtime in
order of their rank on an
overtime roster. A firefighter's rank changes to the bottom
of
the list if he/she either works or refuses
an overtime opportunity
of at least four (4) hours. No change in rank occurs for what is
called a
no contact" (i.e. no answer or an answering machine
responds), or when the firefighter can't
work because of a dis-
ability, vacation or shift trade. (Ex. 102, Tr. 1021-1026.) In
order to avoid unilateral changes in this procedure, the
wants
the current Department
procedures referenced in the
contract.
The Chair agrees that is appropriate.
One
problem presented by the current procedure
is that a
Battalion Chief has to proceed through the
roster until someone
with
the requisite skills
can be found
to work the
shift.
According
to Deputy Chief Hamilton, this
is not a
particular
problem if a platoon then working is
eligible for the overtime
assignment being filled. (Tr. 1032)
That is because those indi-
viduals can
be readily reached at
the station where they are
working.
The practical problem for the City is when it has to
reach members of a platoon off duty. In an example entered into
the record, a Battalion Chief had to call 22
firefighters before
someone finally agreed to work. (Ex. 228)
The
Chair appreciates the City's desire for a more expedi-
tious process,
but the City's
proposal represents a dramatic
departure from a process that the record
indicates generally works
well.
It appears to be an overreaction to a problem that arises
infrequently. The Union's concern that there is greater
latitude
for favoritism is certainly justified, so on
balance, the Chair is
not persuaded the modification the City
seeks should be adopted.
The
question then arises whether the
sents
an improvement. While the City would
clearly have preferred
its proposal which would involve much less time,
the Union pro-
posal
gives department administrators an option.
They need not
use it but it does allow for the mandatory
assignment of overtime
after the roster has been called through at
least once. The quid
pro quo for this is a requirement that the
Department contact at
least three individuals and weigh their
reasons for not wanting to
accept
the overtime before
deciding which of
those three to
select.
So long as the Department contacts the number of individ-
uals
required, and gives them an opportunity to voice their objec-
tions,
the Chair finds the risk of grievances over this language
to be slight. If that becomes a problem, it can be
addressed in
the future.
The Chair is persuaded, therefore, that the Union's
proposal is worth a try as a more reasonable
way to address the
problem presented. Union's proposed Section F (which will now
become paragraph E) is, therefore, adopted.
(4) ENC
and Training Director Exemption
City
Position: The City proposes to add
language to Article
XI exempting the medical coordinator (EMC) and training director
from overtime provision except when they are
performing 24 hour
shifts.
The City's language would read:
The
Emergency Medical Coordinator
and the Training
Director are specifically exempt from the
overtime pro-
visions of this article except when
performing twenty-
four (24) hour shifts.
Exhibit 8.
This language represents present practice. Neither
position receives overtime at the present
time because individuals
in both work irregular and flexible
hours. They are members of
the administration staff; participating in
all staff meetings and
conferences. Both positions are exempt under the FLSA and
would
be exempt under the City's own pay plan if
they were not members
of the bargaining unit. Present practice, therefore, should be
expressly recognized in the contract.
Union
Position: The Union argues that the
City has not jus-
tified
its proposed exemption. It exceeds
current practice and
none
of the comparable
departments have provisions
in their
contracts exempting any bargaining unit personnel from overtime
requirements. The City's proposal, therefore, should be
rejected.
Discussion: The City's proposal was designed to ensure
that
the work days of the EMC and Training
Director could be varied
without overtime liability provided they did
not work more total
hours in a week than their regularly
scheduled forty (40) hours.
The proposal is worded so broadly, however,
that it could conceiv-
ably allow the City to schedule either
position for well in excess
of forty (40) hours without any right to
overtime. The Union's
argument is convincing that this would
represent a change in cur-
rent practice not continuation of it.
The
City has not established compelling reasons why existing
practice should be changed; it has only
offered Persuasive evi-
dence
that the flexible work hours of these two positions should
be recognized in the contract. The Chair, therefore, adopts the
following language to reflect existing
practice:
The work days and hours of the Emergency
Medical Coor-
dinator and
Training Director may be varied
without
overtime liability provided the total hours
worked in a
week do not exceed forty (40).
F. Article
XII - Hours of Duty
(1) Average
Weekly Hours
Union
Position: The
weekly hours of duty for 24-hour shift
personnel from 50.48 to
49.56 by increasing the annual number of
"Kelly" shifts off from-
12 to 14.
The Union feels such a reduction is necessary to start
bringing Bellevue into parity with
comparable Puget Sound Depart-
ments,
which generally work fewer hours. The
Union notes that
differences in scheduled workweeks have a
significant impact on
the firefighters' effective hourly rates of pay. The existing
disparity compared to firefighters'
tally affects bargaining unit morale and
should be corrected.
City
Position: The City proposes no
change in the average
weekly hours of duty. It feels firefighters already have enough
time off when vacations and holidays are
added to the "Kelly" days
firefighters already receive. 50.48 weekly hours is very close to
the average among the City's
including
be factored in because it resulted not from
the collective bar-
gaining process but
rather from an initiative
approved by the
The
Union proposal is a costly item; one the City estimates
would cost at least $84,488 per year (using
1987 figures). In the
City's view,
the Union has not met its burden
of proof that a
reduction in hours at this cost is
justified.
Discussion: The Chair agrees with the City's contention
that
Everett data on this issue should be ignored
because it does not
offer
an apples to
apples" comparison. For
one thing, the
unusually low number of hours per week was
not obtained at the
bargaining
table, it was
obtained through a
voter initiative.
Secondly, Everett is the only Department
whose fire suppression
personnel, which would be the majority of
the bargaining unit, do
not work 24-hour shifts. All other comparables have firefighters
working 24-hour shifts. (Ex.
197,
agreement, Article
24.) Thus, while
fewer hours per shift, they are required to
report for more shifts
per year.
The record supports the conclusion that Bellevue fire-
fighters would regard more frequent shifts,
even if shorter, as a
significantly worse work schedule. It is appropriate, therefore,
to disregard Everett for the purposes of
comparing average hours
per week and net annual hours worked.
The record
indicates the City's workweek
is close to the
median among
the selected comparables;
ranking fifth lowest
in
average weekly hours.
Hours
of Work
Selected
Comparables
Average Hours
Department Per Week
Pierce 53.265
KCFD
#4 50.00
Snohomish 48.00
KC
#39 48.00
Average 50.56
_____________
5For
1988,
Even then, they remain higher than
Exhibits 172-74, 197. Only three comparables have significantly
lower workweeks (Snohomish,
pretty close to the same workweek (
and four have longer workweeks (
the comparables. Consequently, the Chair does not find the
record
persuasive that a further reduction in the
scheduled workweek is
justified.
In
so ruling, the Chair has considered the total amount of
time off that
vacation, holiday leave, scheduled
workweek. For the reasons dis-
cussed later
in this Opinion the Chair finds any reduction in
hours should be made through increased
vacation leave, not through
additional Kelly days.
The
City's proposed first paragraph to Article XII clarifies
existing practice, i.e. the fact that the
average set forth is an
annualized
figure applicable to
fire suppression and emergency
medical services. The Chair finds this clarification
appropriate
and, therefore, adopts the City's first
paragraph.
(2) Normal Work Week
Proposals: The
Union proposes to add a new
section to
Article XII of the contract to provide as
follows:
The
normal workweek for
day shift members
shall not
exceed forty (40) hours. As mutually agreed, the member
may work five (5) eight (8) hour days or
(10) hour days. Any hours worked by these employees in
excess of forty (40) hours per week is overtime work.
Day
shift members are
those members assigned to the
following position: Staff Service Coordinator, Medical
Service Officer, Assistant Training
Coordinator, Emer-
gency
Medical Coordinator, and Training Coordinator.
The City
proposes to modify
Article XII by
adding the
following:
The regularly scheduled average weekly hours
of duty for
employees assigned to fire administration,
fire preven-
tion,
staff services or to trainings shall not exceed 40
hours.
These hours will
be scheduled by management
personnel.
Temporary or permanent assignments of
employees in the
bargaining unit to any of the above
divisions or sec-
tions
shall be made as deemed necessary by management.
Union
Position: The Union proposal is
intended to make clear
that the schedule for day shift personnel is
five eight (8) hour
days unless an affected employee agrees to
work
days.
It also delineates those positions assigned to day shifts.
The
list reflects current
practice and, therefore,
is not
intended to preclude voluntary temporary assignments of 24 hour
personnel to a forty (40) hour schedule for
special assignments.
The
proposal is intended to preclude unilateral reassignment
of day shift personnel to a 24 hour shift to
avoid the payment of
overtime.
Such a reassignment is the subject of an unfair labor
practice
charge and demonstrates
the need for
clear contract
language.
The City's
proposal could be
read to justify
wholesale
unilateral changes in scheduled hours that
should be a subject of
bargaining by the parties. It would serve as a catalyst for divi-
sion
and should be rejected. Instead, the
parties' current prac-
tice
should be incorporated and the
City
Position: The contract should not
include new language
that would tie the hands of management
regarding which personnel
and when day personnel will work. Department administration has
historically assigned personnel to various
day shift Positions and
determined whether the schedule for those
Positions would be four
ten (10) hour days or five eight (8) hour
days. The City proposes
to
retain such flexibility as
do other comparable fire
departments.
Discussion: The first issue that must be resolved is the
existing practice regarding the scheduled
workweek for day shift
personnel.
Both parties agree there are two basic shifts worked:
five eight (8) hour days or four ten (10)
hour days. They dis-
agree as to whether an employee can be
assigned to a ten (10) hour
shift without agreement. According to the Union's "estimation of
current
practices," the ten
(10) hour shift
schedule requires
mutual agreement~ (Tr. 475)
City negotiator Cabot Dow disagreed,
contending that historically the City has
retained the right to
assign either ten (10) hour days or eight (8) hour days. (Tr.
758)
Mr. Dow's
testimony was corroborated by the testimony of
Deputy Chief Robert Pedee. Chief Pedee
testified that as long as
he has been in the Department,
administration has always retained
the right to assign either five eight (8)
hour days or
(10) hour days. They have tried to accommodate employee
prefer-
ence
where Possible but employees have not been given the right to
refuse
a ten (10)
hour schedule. (Tr.
899) Chief Pedee's
testimony
was especially persuasive
as to existing
practice
because he previously served as a negotiator
for the bargaining
unit.
The Chair finds,
therefore, that the
Union
proposal reflects a change in practice not
incorporation of it.
Chief
Pedee's testimony was persuasive as to existing prac-
tice
in at least two other respects. He
stated that as long as he
has been in the Department, management has
assigned people from
one division to another even if that meant
changing someone from a
24 hour shift to a day shift. Pedee acknowledged
the Department
would first try to get volunteers but if
acceptable ones could not
be found, it retained the right to make an
involuntary reassign~
ment. (Tr. 938)
The Department might, for example, move someone
onto a forty (40) hour schedule to help
reduce an inspection back-
log.
(Tr. 935-36) The Department has
also had a long practice of
varying
the workdays of day shift personnel as needed to meet
Department needs. (Tr. 899)
In
the face of this testimony, it becomes evident that the
ment discretion
that Department managers
have traditionally
retained.
If the record indicated that management has abused this
discretion in the past, there might be more
compelling reasons to
adopt Some limitations. The Chair's impression from the record as
a
whole, however, is
that Department managers
have reasonably
sought
to accommodate employee
preferences while retaining
the
right to make involuntary assignments when
department needs could
not otherwise be satisfied.
For
the foregoing reasons, the Chair finds the
posed new section is unduly limiting of
management rights previ-
ously
and reasonably retained. The City's
proposal more c
losely
reflects existing practice and compelling
reasons for changing
that practice have not been established
absent evidence of abuse.
The Chair, therefore, adopts the City's
proposed first additional
paragraph.
In order to bring it into conformity with the testi-
mony
as to existing practice, the second additional paragraph is
modified to read:
Temporary
or permanent involuntary
assignment~ of
employees in the bargaining unit
to any of the above
divisions or
sections may be made to meet
department
needs when acceptable volunteers cannot be
found.
G. Article XIII - Shift Exchanges
The
current Article XIII on "Off Shift Response" is being
deleted by mutual agreement. In its place, the
article language on "Shift Trades"
as follows:
Employees shall have the right to exchange
shifts sub-
ject
to the prior approval of the Chief or his designee.
Such approval shall not be unreasonably
denied.6
_______________
6This
proposal is stated as amended
in the Union's Post-
hearing Brief.
The City proposes much. more detailed
language which it asserts
memorializes
the department shift
exchange policy while
also
closing an existing loophole. The City's proposed language as
revised during the hearing reads:
Employees
assigned to Fire
Suppression duties are
granted the privilege to trade scheduled
duty periods
subject to the following conditions:
1. Requests for shift exchanges shall not
result
in
any additional cost
to the department, shall
not
interfere with Fire Department operations,
and shall be
made at least two (2) duty shifts in advance with the
following exception for unforeseeable
circumstances:
a. Personal emergencies;
b. Battalion Chief's
discretion will be
exercised for other unforeseeable
situations.
2. Chief
Officers shall be
responsible for
approving or denying each request after
considering the
needs
of the department,
the employee, applicable
contract
provisions, and the
employee's attendance
record.
3. Except
for personal emergency
or to attend
school related to fulfilling Civil Service
requirements
for promotional exams and other job related
educational
endeavors, no employee shall return more
than four (4)
or receive more than four (4) for a total of
eight (8)
shift exchanges in a calendar year. An employee may
also work an additional 4 times for another
in a calen-
dar
year if payback is made in the following calendar
year.
A "Personal Emergency" is an unanticipated,
inflexible, personal or business event. These include,
non-exclusively, family
illness or death,
important
financial appointments and arrangements,
counseling for
self or family members, and religious events
and ceremo-
nies. With regard to personal emergencies, there
shall
be no grievance from the decision of the
Battalion Chief
as to the applicability of the shift
exchange privilege
to a specific request except for alleged
violations of
Item 44
(below) . Appeals may be
directed through the
chain of command.
4. This policy shall be applied uniformly
to all
eligible employees. Reasons for any denials of shift
exchanges shall be made in writing and a
copy returned
to the requesting employee. Employees requesting and
agreeing to exchanges must possess equal
qualifications
and rank, or the ability to act in the
higher rank.
5. The employer has no obligation to
ensure or
facilitate any repayment of time due an
employee under
this article.
6. Overtime provisions shall not apply to
these
voluntary, employee initiated shift
exchanges.
7. In the event the substituting employee
fails
to appear, the requesting employee, if at
work, has a
continuing obligation to perform their
duty. Therefore,
the
requesting employee shall
remain on shift
until
properly relieved. In the event the requesting employee
is
not already on shift and
the substitute fails to
appear,
an overtime replacement
will be called,
irrespective of manpower requirements. The substitute
employee shall be liable for the cost of the
overtime
employee with such cost to be payable to the
City via a
payroll deduction initiated by the
City. Furthermore,
the substituting employee shall be subject
to all normal
departmental disciplinary procedures, where
applicable,
for failure to appear.7
_______________
7
This proposal is shown as amended by the City at the hearing
(Tr. 1172-73)
Union
Position: Firefighters have
a compelling need
for
greater flexibility in scheduling time off
in order to cope with
the stress that is a recognized part of
their job and the disrup-
tion
caused by the nature of their shift schedule.
Their workdays
vary
from week to
week, thus without
some flexibility in
scheduling they cannot take classes that
meet on the same days or
evenings or reliably attend other functions.
Current
departmental operating procedures limit shift trades
initiated by an employee to four per year,
but this limit can and
has effectively been circumvented through
the use of "payback"
shift exchanges on which there are no
limits. The City's attempt
to close that loophole is unduly restrictive
and serves no legiti-
mate business need, especially since the City would treat
the
trade of any portion of a full shift as use
of one of the four
discretionary trades.
The
requests for legitimate business reasons,
such as disruption of
training, or defamiliarization
with required routines. In light
of this, the City's insistence on a limit of
four trades per year
is
simply insistence on
control for control's
sake and runs
counter to the widespread practice of shift
trades in the fire
service.
Only Tacoma purports to limit
trades, and the limit
imposed amounts to four shifts in a 30-day
period, or approxi
mately
fifty (50) per year.
The widespread practice of shift
trades in the fire industry is evidenced by
the 1985 FLSA amend-
ments
that exempt such trades from impacting the maximum hours
limitations.
Given this widespread practice, the
should be adopted.
City
Position: Apart from closing
the existing loophole
regarding payback shifts, the City's
proposal is consistent with
past practice and easier to administer than
the Union proposal.
Unlike the Union proposal, the City proposal
addresses the poten-
tial
problem of trade mismatches (i.e. exchanges between employees
of dissimilar Skills or rank) and memorializes an understanding
that overtime will not result from employee
initiated exchanges.
The
standard
("shall not be unreasonably denied") which may generate
disputes.
Its proposed unlimited number of trades could poten-
tially
interfere with training schedules, knowledge of an area or
crew continuity The City's Proposal already allows an
unlimited
number of emergency and educational shift
exchanges. The limit of
four is only applicable to discretionary
exchanges that don't fall
within the exempted category. Past practice indicates four dis-
cretionary
shift trades when coupled with the unlimited number of
emergency and educational shift trades has
satisfied the needs of
all but a small number of employees.
No
other City employees have an unlimited right to exchange
shifts.
West Coast and Washington comparables
that reference
shift trades in their contracts unanimously
place constraints on
such trades
(Ex. 265, 266) . The City,
therefore, feels it has
been quite flexible on this issue and
believes further flexibility
would adversely affect its ability to
effectively administer the
Department. The
City's proposal best
balances the parties'
respective needs and should be adopted.
Discussion: Although both sides seek to change prior prac-
tice
regarding shift trades in some respect, the record as a whole
indicates that practice has been working
well. While there is an
acknowledged loophole in existing department
procedures, i.e. no
limitation on the number of payback shift
trades, the record is
not persuasive that this loophole has been
abused by members of
the bargaining unit. It would appear unduly punitive, therefore,
to impose a more rigid limitation when there
has been no demon-
strable
adverse impact on department operations from the present
practice.
Only
one of the comparable jurisdictions contains a numerical
limitation on shift trades in its collective
bargaining agreement,
and that jurisdiction (
the City is seeking herein. Ex. 297.
The Chair finds, therefore,
no compelling reason for
imposing increased limitations on
the
ability of the bargaining unit to utilize
shift trades.
There
is also no compelling reason to change existing prac-
tice. The present policy, given the lack of
restriction on pay-
backs,
provides more than enough
flexibility to members of the
bargaining
unit, especially when
one considers what
types of
trades are unaffected by the existing
limitation. It does not
apply to trades requested
because of unanticipated, inflexible
personal or business events. Nor would the limit apply to job
related educational endeavors. (City proposal, paragraph 3.b.)
Thus, a firefighter's ability to attend
classes prerequisite for
promotion
or educational incentive
pay would be
unaffected.
According to Exhibit 261, it is rare for a
bargaining unit member
to even utilize the maximum number of four
discretionary initiated
exchanges per year.
The
Chair is not convinced that the present limitation
on
initiated trades serves no legitimate
purpose. For one thing,
because of the additional effort required to
circumvent the limit
by arranging paybacks, it probably serves to
reduce the readiness
with which bargaining unit members resort to
shift trades. Any
shift trade request takes administrative
time to review and either
approve or deny. The City has an understandable concern,
there-
fore,
that such requests
not be resorted
to as a
matter of
routine.
The maintenance of some limitation,
hopefully, gives
emphasis to the fact that shift requests are
a privilege not to be
abused.
The record
indicates that the
City's proposal reflects
present practice, except
for the section
that would limit the
number of payback shift trades and two
sentences in paragraph 7
regarding substitute overtime
liability. That sentence appears
unduly harsh and does not reflect current
practice. The Chair
finds the record persuasive, therefore, that
the City's proposal
should be adopted as the text of
a new Article XIII entitled
"Shift Exchanges" provided,
however, that the third and fourth
sentences of paragraph 7 are deleted and the
first sentence of
paragraph 3 shall be revised to read:
Except
for personal emergency
or to attend
school
related
to fulfilling Civil
Service requirements for
promotional
exams and other
job related educational
endeavors, each employee shall be granted up
to four (4)
discretionary shift
trade requests per
calendar year
regardless of the reasons for the trade as
long as all
other pertinent criteria are met.
H. Article XVI - Holidays
(1) Scheduling
of
Union
Position: The
changes
to Article XVI (Holidays)
and Article XVII (Vacation
Leave) regarding the scheduling of holiday
comp leave or vacation.
The language sought to be added reads:
annually
in accordance with
the requests of the
employees.
Such requests shall
not be unreasonably
denied.
Exhibit 7, pp. 12-14.
The
practice of denying requests in order to
maintain a cushion above
normal minimum staffing. This practice reduces the flexibility
firefighters have in scheduling time
off. It creates disparate
hardship for paramedics and drivers because
more than two para-
medics may not be scheduled off per shift
and drivers may not be
scheduled off at the
same time as the company officer. When
rookie firefighters end up with better
vacation selection than
senior paramedics, morale suffers.
The
Union proposal is necessary
to accommodate employee's
need for time off due to stress and
unplanned personal circum-
stances and would make treatment of requests
for time off more
even handed.
It would prevent the practice of cancelling previ-
ously scheduled
time off simply
to avoid paying
overtime as
occurred in 1983. Shifts off should not be scheduled so as to
create the need for overtime but neither
should they be restricted
so as to avoid the possibility of
overtime. The Union's proposals,
therefore, should be adopted.
City
Position: The City proposes no
change in the current
language regarding the scheduling of
vacations or holiday leave.
It regards the Union proposal as an attempt
to have guaranteed
overtime each shift, and insists the record
supports the City view
that
a small buffer above minimum manning
is necessary due to
unanticipated disability and other leaves
(e.g. funeral, emer-
gency)
. Evidence as to practices in other fire
departments does
not support the
The
City disputes the Union contention that members of the
bargaining
unit have had
vacations arbitrarily rescheduled.
During a high incidence of long-term
employee disabilities, the
Department did ask for employee volunteers
to reschedule vacation,
Kelly, and holiday leaves but an employee
has never been required
to do so.
The
out any basis in historical fact. It has chosen to ignore the
operational needs of the department and
failed to demonstrate any
problems that have arisen under the current
contract language.
Discussion: The
Chair finds the
record persuasive that
scheduling down to minimum manning is not
something that should be
required of the Department. The present contract language reads:
Time off in lieu of holidays [Vacation time] shall be
scheduled at such time as the employer finds
most suit-
able after considering the wishes of the
employee and
the requirements of the Department.
This language represents an appropriate
balance between accommo-
dating firefighters' needs and ensuring
sufficient service to the
public without incurring excessive overtime
costs. While there is
sometimes a 2.3 man cushion early in the
year, that appears to
result from less time off being requested
then by firefighters.
Most of the year, the Department ends up at
or close to minimum
manning levels. (Tr. 867, Ex. 201, 202) The practical effect of
the Union proposal, therefore, would be to
dramatically increase
overtime.
The
record is not persuasive that there is a compelling need
to change present practice. Although
testified he thought there were times
firefighters had their
scheduled
vacations cancelled, Deputy Chief
Robert Pedee dis-
agreed.
According to Pedee's recollection, on the few
occasions
when
problems arose, those
situations were resolved
with
volunteers.
(Tr. 947) In any event, Firefighter Crosby could
give only one concrete example of when a
vacation was affected,
and it is not clear whether that was a
vacation prescheduled in
December or an ad hoc request later in the
year. (Tr. 473-474)
Exhibit 83 indicates there have been
occasions when the Department
indicated it would resort to rescheduling if necessary,
but it
does not prove that mandatory rescheduling
subsequently occurred.
The
testimony as a whole indicates that the Department makes
a reasonable attempt to accommodate employee requests for time
off.
Ultimately, however, it places the needs of the Department
first; including the need to attempt to stay
within budgeted over-
time.
The
the bargaining unit. One can appreciate why the unit would like
the additional flexibility sought, but it
would be inappropriate
to grant them that priority. If the record indicated that pre-
scheduled days off were being cancelled with
greater frequency
than
that shown, a
more compelling argument
would exist for
writing some restrictions into the
contract. To date, however,
the Department's practice of scheduling
above minimum staffing in
order to accommodate the additional absences
that have historic-
ally occurred is fully justified by the
record. The Union's pro-
posal
to eliminate that practice, therefore, is not adopted.
(2) Holiday
Premium Pay
Union
Position: The present collective
bargaining agreement
provides bargaining unit members with five
24-hour shifts off in
lieu of the twelve (12) paid holidays
designated by the
City ordinance. The cash equivalent of this leave may be
taken
instead of time off. Jt. Ex. 6, p.
20. The Union proposes that
in addition to this present benefit, a
firefighter working on one
of the designated holidays should receive
premium pay as follows:
Employees who work on those days designated
as holidays
by Bellevue city ordinance shall be paid at
the overtime
rate of pay.
Ex. 7, p
2.
The
family sacrifice that working on a holiday
represents. Station
visitation has already been tightly restricted and the younger
employee, who more typically has young children,
is disproportion
ately
burden with the sacrifice of working holidays.
Other
City employees receive premium pay for holidays when
worked.
and three of the
the
comparables either by
contract or by
practice observe a
holiday
routine, i.e. only
limited routine work
is required.
Bellevue observes such a routine on only two
of its holidays. For
all of the foregoing reasons, therefore, the
Union proposal should
be adopted.
City
Position: The status quo should be
maintained. The
five shifts off that are provided in lieu of
holidays were calcu-
lated
to provide an equivalent to a premium for working holidays.
The
history of negotiations does not support
this.
Nor
does the practice of comparable jurisdictions.
premium pay for firefighters
is the exception rather
than the
rule.
Since firefighters are already getting time off in lieu of
holidays,
internal comparisons to
other City employees
don't
justify
the
receive pay for three holidays, they receive
96 hours of leave in
lieu of holidays as compared to the 120
firefighters receive. The
status
quo, therefore, is
not inequitable and
should be
maintained.
Discussion: As
the initiating party,
the Union clearly
failed to meet its burden of proof on this
issue. The testimony
of Deputy Chief Pedee
was convincing that the grant of a fifth
holiday shift off in 1977 was added to effectively give fire-
fighters an amount of paid time off that equated to what they
would have received if paid at time and
one-half for the number of
holidays that firefighters on average work
(i.e. 2.75). (Tr. 296,
902, 912-13, 945) The City's argument is persuasive,
therefore,
that the Union's proposal amounts to a
double premium.
It
also far exceeds anything done by comparable
jurisdic-
tions. The five shifts off received by
comparable to most all of the selected
comparables. Union Exhibit
69A.
Only one of these, Clark Fire District 45, pays time and
one-half
for holidays actually
worked. Kent pays
four hours
straight time per holiday worked; far less than what the Union
seeks, and King 44 pays double time for
Christmas only. All the
rest do not have premium pay for hours
worked. (City Ex. 180,
181)
The
Chair recognizes the fact that this proposal was moti-
vated
in part by a unit concern regarding future limits on holiday
visitation.
(Tr. 341) This is a concern that
should be addressed
in other ways with the City. It clearly does not justify the
premium being sought by the Union's
proposal. That proposal is,
therefore, not adopted.
(3)
Union
Position: The
to Article XVI would effect
another change as well; providing
that:
An employee who quits, retires, dies, or is
terminated
will receive compensation at his final base
hourly rate
of pay for accrued holiday comp leave
unused.
Exhibit 7, p. 12.
This
change was not discussed much and from what the Chair
can find in the record, there were no
compelling reasons offered
to change from the current practice of
paying a prorated share of
what has been accrued. (Tr. 758, 916)
I. Article XVII - Vacation Leave
Union Position: The
section of the contract. It seeks
to have an additional step
added to the vacation accrual schedule and
to have the vacation
accrual rates increased at each of the
designated steps by one
shift in 1987 and an additional shift in
1988. The Union argues
its proposal is necessary to bring the City
vacation accrual rates
into parity with those of comparable Puget
Sound departments.
City
Position: The City proposes no
change in Article XVII.
The City argues that firefighters have
enough time off already and
a further increase so soon after the last
one is not justified.
Firefighters just got an increase in
vacation leave in 1985 and
1986.
While the present schedule may not reflect as much time off
as
the average among the
Union's comparables, reference to an
average is misleading because comparisons
should take into account
time
off provided through
other than just
the vacation leave
schedule.
When the total amount of time off that Bellevue fire-
fighters receive under their present
contract is considered, the
City believes enough is granted and a further increase
is not
justified.
Discussion: Even
though members of the bargaining
unit
received an increase in vacation as recently
as 1986, the
has convincingly demonstrated that a further
increase is necessary
to bring the unit closer in line with
comparable departments.
The
following chart depicts the number of hours of accrued
vacation leave firefighters earn in the
comparable jurisdictions
at each indicated year of completed
service. The source of the
hours shown is either Union Exhibit 53,
293 or the applicable
collective
bargaining agreement (Ex.
197).
included because of the Chair's earlier
ruling that it should not
be considered on the issue of hours off
duty.
COMPLETED
SERVICE
5 years 10 years 15
years 20 years
KCFD
#4 192 216 240 240
KCFD
#39 180 240 300 300
PCFD
43 180 252 288 360
SCFD
#1 144 144 192 192
Average 170.4 205.6 238 262.4
Union
Proposal
1987 168 192 216 216
At the fifth year level,
below average. At the 10th year, it is still 7th and has
dropped
to 18% below the average accrual for all
comparables. By the 15th
year,
year 20 or higher
_______________________________
8A
comparison has not been made for 25 or
more completed
hours because only one member of the
bargaining unit will reach
that level of seniority by 1989 and that
individual does not work
a 24 hour shift. Union Exhibit 40.
The
City argues that comparison to the average vacation hours
of comparables is misleading because
comparisons should take into
account total time off, not just
vacations. The Chair agrees, but
when net annual hours are compared the
record is still persuasive
that an improvement in the bargaining unit's
vacation accrual is
justified.
The
following charts compare the net annual hours worked for
the comparables and
ence. The figures for U gross annual hours" are taken from City
Exhibits
177 and 178.
Exhibit 69A and City Exhibits 177-178. Annual vacation leave is
based
on Union Exhibit
53, 293 or
the contracts themselves,
Exhibit 197.
NET
ANNUAL HOURS
5 YEARS SERVICE
Gross
Annual
Hours Leave Leave
Worked
KCFD
#4 2600 120 192 2288
KCFD
#39 2496 132 180 2184
PCFD
#2 2768 96 180 2492
SCFD
#1 2496 127 144 2225
Average 2357
Union
Proposal (1987) 168 2337
10
YEARS SERVICE
Gross
Annual
Hours
Leave Leave Worked
KCFD #4 2600 120 216 2264
KCFD
#39 2496 132 240 2124
PCFD 12 2768
96 252 2420
SCFD #1 2496 127 144 2225
Average 2321
Union Proposal (1987) 192 2313
15
YEARS SERVICE
Gross
Annual
Hours Leave Leave Worked
KCFD 44 2600 120 240 2240
KCFD 139 2496 132 300 2064
PCFD 42 2768
96 288 2384
SCFD 41 2496 127 192 2177
Average 2288
Union Proposal (1987) 216 2289
20
YEARS SERVICE
Gross
Annual
Hours Leave Leave Worked
KCFD 44 2600 120 240 2240
KCFD 139 2496 132 300 2064
PCFD 12 2768 96 360 2312
SCFD 11 2496 127 192 2177
Spokane #1 2759 104 240 2415
Average 2264
Union Proposal (1987) 216 2289
As
can be seen from the charts, in terms of net hours worked
per year,
falls behind
increase
of one shift
per step does not change
this relative
ranking but it does offer the benefit of
bringing the net annual
hours
of
comparables
It
also adds a step for those firefighters who have topped
out and no longer have any increased vacation benefit to look
forward to.
Six bargaining unit members have presently reached
this point and within the next two years,
another twelve (12) will
do so.
Of the comparables, six departments have more steps than
139)
already provide more vacation for
their most senior fire-
fighters than
The
Chair has considered the City's argument that its fire-
fighters already get enough time off. The record as a whole is
convincing, however, that given the nature
of the job, including
its emotional and physical demands,
additional time off is fully
justified and necessary
to bring the unit's accrual rate
into
parity with comparable departments. The Chair, therefore, adopts
the
accrual levels for 24 hour shift personnel
but finds that change
should be effective as of January 1st of
this year rather than
the fact that the awarded increase is coming
so soon after the
1986
increase, and the fact that even without any increase in
accrual
the units' relative
rank was still
5th lowest in net
annual hours worked and within 1% of the
average at most steps.
For those same reasons, the Union's proposed
additional increase
in 1988 is not adopted.
Regarding
day shift personnel, the Chair finds it appropriate
that they receive a prorated equivalent of
the increase awarded to
24 hour shift personnel. This prorated equivalent shall be based
on annual hours worked by day shift
personnel compared to those
same hours worked by 24 hour shift
personnel.
J. Article XVIII - Funeral/Emergency Leave
The
only section of this Article that is at issue is Section
B: Emergency
Leave.
Union
Position: The
ment
in the contract that an employee repay the City for the cost
of granting emergency leave. Under the
fighters covered by LEOFF II would have such
leave deducted from
accrued sick leave. LEOFF I firefighters who don't accrue sick
leave would just receive 48 hours emergency
leave without loss of
pay.
The
City's insistence that firefighters pay back emergency
leave, sometimes at a rate of time and
one-half, is unfair. Other
City employees have such leave charged
against accumulated sick
leave.
Fire Department managers accrue leave that they do not
have to repay. In return for a similar arrangement, the
Union
would accept an award of emergency leave
conditioned on treating
funeral leave the same, i.e. accrual on the
same basis as depart-
ment
managers for LEOFF I personnel; charged against accrued sick
leave for LEOFF II.
The majority
of the
leave to be charged to an employee's sick
leave. Only Bremerton,
Everett and Redmond do not. The contention that this would cost
2,800 hours of lost time per year is based
on a faulty assumption.
Firefighters do not suffer serious family
emergencies at a rate of
one per year. The Panel, therefore, should rectify the
existing
inequity and adopt the
City
Position: The City proposes the
current language be
retained.
The payback requirement was the quid pro quo for the
City's agreement to the broad emergency
leave provision currently
in effect.
Adoption of the
consideration received earlier.
The
times emergency leave may be taken in a
year, and requires no pay-
back of any sort from LEOFF I members. Contrary to
its
demand is not
supported by policies
covering other City
employees.
Those employees may deduct emergency leave from sick
leave only up to 40 hours per year. Police officers are required
to pay back emergency leave under the same
conditions as fire-
fighters.
The unlimited nature of the
particular concern because unlike other City
employees who often
need not be replaced, when a firefighter
takes emergency leave he
or she usually must be replaced. There is thus more cost and
adverse impact on the City.
The
status quo is already superior for firefighters because
emergency leave is unlimited. The Union has failed to demonstrate
any convincing reason to change the present provision which is
functioning
well. No change to Article
XVIII, therefore, is
justified.
Discussion: The Chair finds the
cient to
support a change
in the status
quo. As the
City
correctly notes, other City employees who
have the right to deduct
emergency leave from sick leave are capped
at 40 hours per year.
Firefighters are not. There is a limit of 48 hours per incident
of leave, but the number of times in a year
that such leave may be
taken is unlimited. Another distinction exists in the fact that
other City employees must charge funeral
leave to sick leave as
well.
Firefighters do not. The
area in which it is willing to make a
change, and that may serve
as a basis for future negotiation, but it
is not a persuasive
reason to award a change now; not when the
annual amount of emer-
gency
leave under the
-
The
status quo maintains the current consistency regarding
leave
provisions for both
firefighters and police.
In this
regard,
the City's argument is persuasive
that there are valid
reasons
for treating these
positions differently than
non-
uniformed City personnel given the greater
likelihood an absent
firefighter will have to be replaced, often
at overtime rates.
The
payback requirement only applies if a firefighter does
not have scheduled leave time later in the
year that can be trans-
ferred
to cover the period of the emergency.
Union Exhibit 232.
Payback at time and one-half is only
required if the City had to
replace the firefighters and incurred
overtime in doing so. 9This
is not an unreasonable requirement and since
it served as the
principal basis on which the right to
emergency leave was granted,
that
requirement should not
readily be changed by
this Panel
without
some other quid
pro quo and compelling
reasons for a
change.
The
_______________
9In
this respect, it can be noted that one of the incidental
benefits of not requiring the Department to
schedule down to mini-
mum manning is the reduced likelihood that a
firefighter will have
to pay back emergency leave at time and
one-half.
K. Article IX - Prevailing Rights
The
expired agreement provides as follows:
Any and
all rights concerned with the
management and
operation of the Department are exclusively
that of the
Employer unless otherwise provided by the
terms of this
Agreement.
No conditions, rights
or privileges of
either party are affected unless
specifically mentioned
in this Agreement.
Exhibit 6.
The
this short form management rights clause be
amended to become a
long form provision that would read as
follows:
The
of the Employer to operate and manage its
affairs in all
respects in accordance with its lawful
authority. The
powers
and authority which
the Employer has
not
expressly abridged, delegated or modified by
this Agree-
ment
are retained by the Employer.
Management
rights and responsibilities as
described
above
shall include, but
are not limited
to, the
following:
[For example]
A. To
discipline, suspend, demote, discharge employees
for
just cause, subject to the Civil Service Rules
and
Regulations.
B. To
recruit, hire, promote,
transfer, assign, and
retain
employees.
C. To
layoff employees for lack of work or funds or
other
legitimate reasons.
D. To
determine number of personnel (e.g. total per
shift
and per equipment), the methods and equipment
for
operations of the department.
E. To
fill vacancies subject to Civil Service Rules
and
Regulations.
F. To
appoint employees to positions within the bar-
gaining
unit.
G. To
assign work and overtime.
H. To
classify jobs.
I. To determine
the duties to be performed
by
employees
in classifications included in the bar-
gaining
unit.
J. To
determine shift business hours.
K. To
determine the length of
shifts, starting and
quitting
times.
L. To
schedule work.
M. To
direct employees.
N. To
discontinue work that
would be wasteful
or
unproductive.
0. To
make and modify rules and regulations for the
operation of
the department and
conduct of its
employees.
P. To determine
physical, mental, and
performance
standards.
Q. To
control Fire Department budget.
R. To
take any action necessary in event of emergency.
City
Position: The City argues that the
management rights
clause of the expired contract should be
amended to more fully
delineate
the responsibility and
authority of the City. The
existing
clause is too vague
and ambiguous. Moreover, it is
unenforceable given decisions of the Public
Employment Relations
Commission because it lacks the requisite specificity necessary
for
the commission to infer
a waiver of statutory
bargaining
rights.
The
relationship between the City and the
strained in recent years because of what the
City perceives as an
attempt by the
tives. A long form management rights clause would go
a long way
toward establishing workable
parameters. It is also consistent
with
sound labor-management relations.
An expanded management
rights clause was awarded in the
tion
and City of Everett interest arbitration
(Abernathy, 1981).
Long form clauses predominate in the
contracts of comparables.
The
City believes adoption of its management rights proposal
would serve to contain an increasing area of
controversy between
the parties.
Union contentions that the proposal is intended to
force it to abandon statutory rights are
without merit. So too is
the
proposal violates RCW 41.56.140(4) to the
extent that it purports
to effect a waiver is untenable. The Ninth Circuit decision in
NLRB v. Tomco
Communications, Inc., 567 F.2d 871 (1978) made clear
that management may insist upon a waiver of
the right to bargain
during the contract term.
Regarding
alleged stipulations, the City stands by the repre-
sentation
of its legal counsel as set
forth in her letter of
August 19,
1987 (Ex. 249).
To resolve any misunderstandings,
however, the City has offered the following
clarification to its
position:
The
City does not intend that granting of its management
rights proposal would require the
bargaining rights it presently has under
Chapter 41.56
RCW.
To the extent that Chap. RCW 41.56 RCW requires
bargaining over any action or activities
enumerated in
the City's proposed management rights
clause, the City
agrees that for the duration of this
agreement, the City
will bargain that issue and will not assert
a waiver
against the Union. To the extent that the City has made
any
statements in its
arbitration brief inconsistent
with
that position, it hereby amends
its brief
accordingly.
Union
Position: The City's proposed
amendment is totally
inappropriate and should be rejected, as
Arbitrator Block did in
the parties'
last arbitration proceeding. The
City represented
that its proposal does not involve any
waiver of collective bar-
gaining rights. Yet, without constituting a waiver, the
provision
cannot
afford the discretion
the City claims
it does. For
example,
the City's proposal
would purportedly permit
it to
unilaterally determine shift business hours,
the length of shifts,
and
starting and quitting times. Yet
these are matters about
which RCW 41.56 requires bargaining unless
there has been a waiver
of that right in the contract either by
specific contract term or
by some broad management rights clause.
The
City's inconsistent positions as to whether its proposal
is intended to effect a waiver or not has
led the
post-hearing Motion to Strike. (Motion dated
The
counsel that the City's proposals [for
working conditions, reduc-
tions
in force and prevailing rights] in no
way contemplated a
waiver by the Union of any right to bargain
over proposed charges
as to which bargaining would otherwise be
required by RCW Chapter
41.56.
The Union confirmed this representation by letter dated
August 31, 1987. (Union Ex. 248) The City now states that if its
proposal
is adopted it would N assert
waiver by the Union as a
defense to any unfair labor practice charge
that may arise.u
City
post-hearing
brief, p. 115. As
a result of
this change in
position, the City's proposal should be
stricken.
The
prehearing agreement between counsel concerning the
sub-
stance of the City's "Prevailing
Rights" proposal creates a stipu-
lation
that the Panel must honor RCW 41.56.460(a).
Alternatively,
the City should be estopped
from changing its position. In any
event,
the Panel may not award the proposal and it should be
stricken.
Discussion: The first issue that must be resolved is
the
Union's Motion to Strike
the City's proposal. The
Chair has
reviewed the parties' prehearing
correspondence, testimony at the
hearing and subsequent correspondence. There was a statement in
the City's posthearing
brief that indicated the City would assert
a waiver as to anything included in the
City's enumeration of man-
agement
rights. City brief p. 115. While that would be inconsis-
tent with representations the City appeared
to be making earlier,
the Chair finds any inconsistency has been
resolved by the City's
clarification set forth supra. That clarification is consistent
with the position taken by the City before
and during the hearing.
As
City counsel Janet Garrow reiterated at the hearing,
the
City is willing to agree that even if its
proposal is adopted, a
continuing duty to bargain will exist during
the term of the con-
tract as to those enumerated rights that
affect wages, hours or
working conditions. (Tr. 1086)
That was the extent of the stip-
ulation"
the
mately
changed its position, grounds for estoppel do not
arise.
The Motion to Strike is, therefore, denied.
Regarding
the merits of the City's proposal, the Chair finds
the record persuasive that a longer form
management rights clause
should
be added to
the contract. Expanded
management rights
clauses are commonly found in current
collective bargaining agree-
ments. The trend towards their incorporation has
certainly been
accelerated by the developing PERC case law
which holds that short
form clauses lack the specificity necessary
to infer a waiver of
statutory bargaining rights. See, e.g., City of
(PECB, 1984); City of
This
case law may
well explain why
seven of the
selected
comparables, i.e. Clark, Everett, Kent, King
439, Pierce, Redmond
and Tacoma, enumerate a variety of
management rights rather than
relying
on the short
form type of
clause that the
parties
presently have.
A
longer form management rights clause is an obvious quid pro
quo for expanded rights to grieve that have
been adopted in this
agreement.
While the City's proposal is rather broad on its face,
its effect is curtailed by the fact it will
not preclude further
bargaining
regarding any changes
that affect wages,
hours or
working conditions as those statutory
bargaining obligations are
construed under RCW 41.56.
The Chair
has considered the
fact that disputes
will
undoubtedly arise as to whether a change
affects "wages, hours or
working conditions" and thus is not
subject to unilateral action.
Even allowing for this, however, the City's
proposal should reduce
conflict in at least some areas. In that sense it represents an
improvement over the status quo. It also affords recognition that
within some parameters, the City should be able to respond to
changing operational needs and conditions
unilaterally. That does
not
preclude bargaining over such
matters upon the
contract's
expiration,
it just gives Department management the latitude to
act more expeditiously during the
interim. The Chair, therefore,
finds that the City's proposal should be
adopted with the follow-
mg
amendment to reflect
clarification as to
those enumerated
rights for which a continuing duty to
bargain will exist: "The
City agrees that a continuing duty to
bargain exists as to those
enumerated rights that affect wages, hours
and working conditions
within the meaning of RCW Chapter
41.56." The just cause standard
for discipline, etc. in Subparagraph A
should also be revised to
eliminate the reference to Civil Service
Rules and Regulations for
the reasons discussed in connection with
Article VII (Discipline)
L. Article XXIV - Grievance Procedure
Proposals: The
(3) respects: (1) it would amend the first paragraph to
indicate
that the
would amend Step 1 to read "an employee
and his Union representa-
tive ... shall present a grievance .. N I and (3) it would add a
final part stating:
In
the event a
grievance involves a
claim that an
employee could advance before the
Commission, the
tration
hearing unless the employee has first elected
arbitration as the exclusive forum to
resolve the claim.
The
City proposes a change
that would require
individual
employees to file grievances where the
matter at issue is strictly
of individual concern to that employee but
would permit the
to initiate grievances on its own behalf
when the issue is one
directly impacting a Union right under the
contract.
(1) Union's
Right to Grieve
Union
Position: The Union asserts this
right is crucial and
must be recognized in the agreement for two
principal reasons.
First, it is necessary for the
full collective bargaining partner. Second, it is necessary for
the
agreement.
The
grievances on behalf of bargaining unit
employees. The right to
prosecute
grievances lies at
the core of the
exclusive
bargaining representative. While
that right is not
expressly
mentioned in RCW
41.56.080, the NLRB
has construed
Section 9(a)
of the NLRA as conferring the
right to file and
prosecute grievances. Section 9(a) is virtually identical to RCW
41.56.080.
As the Third Circuit has recognized, requiring griev-
ances
to be signed by individual employees undermines the repre-
sentational
status of the union. Industrial Union
of Marine &
Shipbuilding Workers v. NLRB, 320 F.2d 615,
619 (3d Cir. 1963).
Based
on what it believes to be its statutory right to file
grievances, the
against the City for seeking to deny
the Union access to the
contractual grievance procedure. The Panel can save the parties
protracted litigation by according the Union
language which recog-
nizes
its proper role.
The
ability to file grievances on its own behalf is essential
to the
bargaining agreement. An employee fearing retaliation will not
likely file a grievance. The Union must be able to do so to
protect the interests of the entire
unit. Examples exist in the
record of instances when the Union has been
thwarted in its effort
to investigate and prosecute a contract
violation. The availabil-
ity
of statutory and contract remedies is
virtually illusory.
Consequently, the
recognized in the collective bargaining
agreement and made retro-
active to January 1, 1987 in order to allow
recourse to the griev-
ance
procedure for several disputes that have arisen since expira-
tion
of the parties' last agreement.
City
Position: The City argues that the
Union proposal is an
unwarranted
departure from the
longstanding practice of the
parties as memorialized in past collective
bargaining agreements.
It would open the gate for improperly
initiated grievances filed
for
political or leverage
purposes and shift
the contractual
emphasis from one of
addressing employee concerns
to that of
addressing the Union's concerns as a
political body. The City
believes the grievance procedure should
continue to be directly
responsive to the concerns of individual
employees.
The
City believes the
current procedure has
served both
parties well. It opposes any procedure which places
unnecessary
obstacles between the City and its
employees. Changing Step I to
require filing of a grievance by both an
employee and the
would
appear to abrogate the
statutory right of
employees to
directly file grievances. RCW 41.56.080. The City's proposal in
comparison better balances the respective
interests. It is based
on
the same rationale
regarding separating employee grievances
from more general unemployment claims that
served as the basis for
Executive Order 11491 regarding federal
employee grievances.
The
various comparables suggested by both
sides are split
regarding the right of
the Union to grieve on its own.
The
existing agreement is clear and
unambiguous. It precluded that
right.
To the extent the Union may have had a statutory right,
the Union has waived that right through the
collective bargaining
process.
The
Courts have not recognized on a constitutional basis the
right the
the City's proposal would impair the
actuality,
it would broaden the scope
of the
rights.
Any contention that some employees might not file greiv-
ances
out of fear of harassment or coercion is without factual
basis in the record. What the record actually reflects is the
City's desire to encourage
employees to raise
dissatisfactions
directly so that issues can, if possible, be
quickly resolved. In
short, the
is not justified by the record and should be
rejected.
Discussion: The Chair finds persuasive the
regarding the need to recognize its right to
file a grievance,
even one dealing with what the City
regards as an
individual
matter.
Contrary to assertions by the City in its brief, the
Union appears to be seeking to clarify a
right it believed it
already had. It has not conceded in the past that the
right to
grieve as a Union did not exist. Lt. Mark Moulton, testifying on
behalf of the Union, stated that the Union
thought it impliedly
had the right to grieve on its own behalf
but sought clarification
when it noticed the language in the agreement
was open to a dif-
ferent
interpretation. Moulton described the
Union's proposal as
an attempt to reflect what it assumed had
been the case. (Tr. 482)
Regardless
of whether the
previously waived by contract any statutory
right to file a griev-
ance, it is clear
the
waiver.
The record provides compelling reasons why such a waiver
should not be required. The Third Circuit Court of Appeals has
aptly described the detrimental effect of
limiting to employees
only the initiation of the grievance
process:
(S]uch a clause
would preclude the union from prose-
cuting flagrant
violations of the
contract merely
because the employee involvement, due to
fear of employee
reprisals, or for similar reasons, chose not
to sign a
grievance.
Hence, redress for a violation would be made
contingent
upon the intrepidity
of the individual
employee.
Marine & Shipbuilding Workers, 320 F.2d
at 619. The Chair agrees
that the Union should not have to rely on
the resolve of individ-
ual
employees to police provisions of the contract applicable to
all.
Comparable jurisdictions are overwhelmingly in accord. Only
two
(Clark, King #39) limit the
City seeks to do. The
of this Article is, therefore, adopted.
(2) Employee's
Right to Grieve
With
regard to the proposed change to Step 1,
one has to
consider the provisions of RCW 41.56.080
which states:
that any public employee at any time may
present his
grievance to the public employer; and have
such griev-
ance
adjusted without the intervention of the exclusive
bargaining
representative if the
adjustment is not
inconsistent with the terms of a collective
bargaining
agreement then in effect, and if the
exclusive bargain-
mg representation has been given reasonable
opportunity
to be present at
any initial meeting called for
the
resolution of such grievance.
(Emphasis added.) This language suggests that employees should
be
allowed to file grievances without
intervention of the Union so
long as once a grievance is filed the Union
is given notice and an
opportunity to be present at any meeting to
resolve the grievance.
The Union's proposal would appear to conflict
with this statutory
provision in that it requires an employee to
file a grievance
jointly with a Union representative. In light of this, the Chair
finds that Step 1 should be modified to
read:
The
the
employee's supervisors who
shall give his
oral
answer within five (5)
business days after it is pre-
sented
to him; provided, however, that if a grievance is
filed by an employee without assistance of
the
the Union shall be given notice of the
grievance and an
opportunity
to be present
at any adjustment
of the
grievance.
(3) Matters
Excluded From the Grievance procedure
As
for the Union's proposed deletion of the last paragraph of
Article XXIV, the Union has not established
compelling reasons to
change the first sentence, which the Chair
finds should remain as
written.
The decision to
allow disciplinary matters
to be
grieved, however, requires deletion of the
last sentence and the
addition of the following paragraph to Step
3:
In the case of disciplinary actions, both appealable to
the Civil Service Commission and grievable under the
terms of this contract, an election of
remedies shall be
made after receipt of the Step 3
response. An employee
may
elect to either
pursue an appeal
to the Civil
Service
Commission or continue
with the contractual
grievance procedure, but not both. Time limits will be
extended
for either side
if necessary to complete
a
reasonable investigation before the election
of remedies
is made.
M. Appendix A
The
parties have agreed that the duration of the agreement is
to be from
significant disagreement about the
appropriate wage rates for that
period of time.
(1) Base
Monthly Wage
Proposals: The
monthly wage for 1987 of 10% and another 10%
in 1988. The City
proposes a 3% increase for each year.
Union
position: The Union argues that the
best way to assess
whether or not compensation meets or exceeds
the market rate is to
compare
hourly compensation not
just base monthly wage.
The
Union's salary proposal, therefore, is based
on a calculation of
total compensation divided by the annual
hours worked to get a
dollar per
hour valuation of the City's wage
benefit package.
Total
compensation included salary,
pension, assorted salary
premiums~ e.g. longevity, education pay,
engineer pay, specialist
pay,
scheduled overtime, and
employer contributions to
such
benefits as health, medical, dental,
life. Annual hours worked
was calculated from the normal workweek less
vacation and holiday
leave.
According
to the Union's calculations, in total compensation
per hour an average Bellevue firefighter
currently receives $15.30
per hour worked. (Ex.
297) This, it is argued,
is well below
total
hourly compensation for
the Union's comparables
which
averages
$16.62. Fully paid
departments average $17.25
and
Everett and Tacoma, which the Union feels
are the most comparable
departments, average $18.15. (Ex. 301)
For 1988, the comparisons
run as follows:
Union
Comparable Cities 17.28
Fully
paid Departments 17.82
Everett/Tacoma 18.86
Exhibit 302.
The disparity becomes even greater if one figures in
the
overtime
contracts of comparables for working the
longer workweek they have
now.
The
reduction
would result in
a top firefighter hourly
base wage
(excluding other forms of compensation) of $12.85 for 1987 and
$14.14 for 1988. This is fully justified by reference to the
comparables:
1987 1988
All
"Block"
Cities 12.84 13.19
Union
Comparable Cities 12.76 13.13
Fully
paid Departments 13.26 13.58
Accordingly, the panel should award the
City
Position: The City objects to comparisons
on the basis
of net hourly compensation. Its preferred methodology has been to
compare average annual compensation. It
agrees with the
that this amount should include base monthly
salary, MEBT, Educa-
tion
Incentive, and premium pay. It disagrees
with the inclusion
of
holiday premium pay, meal
or clothing allowances,
and the
employer cost of insurance benefits.
The
City contends it is not aware of any arbiter who has
embraced the
approach was rejected by Arbiter
interest arbitration and was not fully
accepted by Arbiter Block.
It is inappropriate because
rated employees; firefighter labor contracts
are not traditionally
negotiated on this basis; and the parties
have not adopted that
methodology in the past. The
therefore, should be regarded as nothing
more than a mathematical
exercise.
Using the
City's West Coast proposed comparables,
average
annual compensation is $30,761. The City's proposal would give
its firefighters $34,963. Thus,
the City's sample of
compensation = $33,187),
using the
the average of $33,499 and behind only
The
City's proposal exceeds the intervening
change in the
CPI, and the CPI adjusted without medical is
significantly lower.
Since
the City pays
nearly all the
medical/dental insurance
premiums for its firefighters and even
reimburses them for deduc-
tibles
and co-insurance payments, it is evident that no adjustment
in salaries based on the cost of living is
required.
Discussion: The
that even with the City's proposed 3%
increase for 1987, more is
needed to bring the bargaining unit into
parity with comparable
employers.
While it is understandable why the
the methodology it has, the Chair is
convinced it suffers from
some fundamental flaws.
Perhaps
the most significant flaw in the Union's approach is
the fact that it is too individualized. The Union took the con-
tractual
wages and benefits of other departments and applied them
to each of the members of its bargaining
unit as of the mid point
of the proposed contract term. The proper point of comparison
should be the wage and benefit package
generally; not the average
for a particular bargaining unit frozen at a
particular point in
time.
The latter is affected too much by intervening changes.
New hires,
retirements, lateral transfers all can significantly
affect longevity assumptions upon which many
of the Union's calcu-
lations
were based.
Another
problem -arises from the fact that the Union's calcu-
lations
applied the contracts of comparable
departments to the
working in the comparable jurisdiction, many
of the unit members
would not be working in the same positions
they are now. If the
comparable
jurisdiction lacked paramedic positions for example,
the lost premium for that was not factored
in. While it may have
seemed logical to the Union to apply the
contract of a comparable
jurisdiction to the Bellevue unit as if they
continued to work in
the same positions and with the same
workweek that they presently
do, in reality that skews the results. To get the comparable pay
and benefits, members of the Department
would have to work in the
positions offered by the other department
subject to the normal
work schedules and workweeks of that
department. It is erroneous,
therefore, to add in overtime as the Union
did in its model on the
assumption that bargaining unit members
would have received this
because of the longer week they work in
Bellevue.
It
is also erroneous, given the Union's approach, to ignore
the fact that under a comparable contract
there isn't the same
opportunity for premium pay, promotions,
etc. One of the things
the record clearly demonstrates is that
there are more opportuni-
ties in Bellevue to earn higher pay than in
other jurisdictions.
The Union's methodology doesn't give
appropriate recognition to
this.
The
availability of computerized spreadsheets makes it easier
to adopt an approach like the
gets in the comparison, the more room there
is for error to creep
in
and significantly affect results.
The City has
correctly
noted, for example, that the Union used
seniority as of January 5,
1988 for 1987 comparisons. (Ex. 40)
It also used all positions
in the bargaining unit to calculate average
seniority which was
then used to compute vacation accruals,
longevity pay, etc. for
firefighters. This had the effect of
generating greater
disparities
than actually exist
between the top
firefighter
monthly wages because the seniority of more
senior bargaining unit
members not earning those wages was
utilized.10
__________________________________
10The
City contends this flaw causes average seniority to
drop from 9.1 years to 6.9 years but that
excludes unit member
Chester Zobrest
who retired in 1988. As of 1987 when he
was still
in the unit, it appears average seniority
would have been closer
to 7.5 years. Union Exhibit 40.
The
record contains other examples of flaws in the
methodology that have led the Chair not to
adopt its approach.
Rather than dwell on those, the Chair will
simply note that after
carefully considering the record she has
concluded that a differ-
ent
methodology needs to be used to draw appropriate comparisons.
The
steps and ranks vary so much among comparables that the
only helpful point of comparison is to look
at a benchmark wage
for
comparison. The one
selected is that customarily used in
interest
arbitrations, i.e. the
top firefighter monthly
wage.
Arbitrators regularly hold, however, that
more than just the raw
base wage needs to be considered. An adjusted wage (hereinafter
"total monthly compensation")
should be utilized. The Chair has
concluded that those elements of
compensation properly included in
this case are: MEBT (or Social Security if paid by the
Employer),
longevity pay, educational incentive pay,
EMT premiums and across
the board holiday pay given in lieu of time
off.
Too
many inequities arise if things like
food or clothing
allowances are added in and not the value of
other benefits a par-
ticular
comparable may offer, e.g. mileage reimbursement, higher
pay out of rank, LEOFF insurance
deductibles, etc. As the City
correctly notes, comparables vary
significantly in what types of
reimbursements they
offer, i.e. whether
they have adopted
a
quartermaster system, use of wash and wear
uniforms, etc. I find
the City's
argument the more persuasive,
therefore, that only
major salary-related items should be
included in the calculation
of monthly compensation.
Employer
contributions for insurance benefits should likewise
be excluded.
The dollars an employer spends for insurance do not
necessarily indicate the value of benefits
received by differing
bargaining
units. Bellevue, through economies of scale,
self
insurance, more careful shopping, etc.,
might be paying less per
bargaining
unit member for a package
of benefits broader
and
better
than another unit
whose employer pays more. The City
should not be penalized for this as it is in
the Union's model.
Because only the amount of premiums paid is
considered, Bellevue
firefighters appear to be getting less in
the way of insurance
benefits under the Union's model whereas in
reality the benefits
received might be much better than the
comparables.
Judging
from the evidence in the record, total monthly com-
pensation
offered by the selected comparables is as follows:
Adjusted
Monthly Salary (1987)
Top
FF Adjusted
Monthly Educ EMT
Salary MEBT Longevity Inc Premium Pay Salary
KCFD #4 2758 - 9 -
- - 2766
KCFD #39 2726 - 25 -
- - 2751
PCFD 42 2801 -
- 70 - - 2871
SCFD #1 2683 - - 60 - - 2743 Spokne #1 2334 -
112 -
- - 2446
Average
(all comps) 2766
Average
(LLM) 2829
The entries
shown above were
derived either from
Exhibit 297 or from the contract for the
applicable jurisdiction.
Union Exhibit 297 showed a monthly salary of
$2803 for KCFD 44 but
that did not take effect until
it was $2,735. The number shown, therefore, is the average
salary
for the calendar year. For longevity and educational incentive
pay, an assumed seniority of 5-9 years was
utilized and 45 credit
hours since the average seniority for the
bargaining unit falls
into
that range. The
amounts shown are
derived from
Exhibits
65, 292 or the
contracts themselves. The
5% salary
premium that Everett pays in lieu of holiday
leave is included
because
its receipt is
not dependent on whether a holiday
is
worked or not.
Looking solely
at total monthly
compensation,
firefighters with a 3% increase for 1987
would rank 4th at almost
exactly the average salary for the local
labor market comparables.
Monthly
Compensation (1987)
Pierce 2871
KCFD
# 4 2766
KCFD
#39 2751
SCFD
#1 2743
Average
(all comps) 2766
Average
(LLM) 2829
The
the bargaining unit has to work to earn the
amount of compensation
shown.
The Chair agrees that is a relevant consideration. While
net
hourly compensation, i.e.
monthly compensation divided
by
monthly hours worked, should not necessarily
be the controlling
criterion,
it is appropriately
considered in order
to guard
against the effect of a large discrepancy
among comparables in
hours worked.
In
order to convert the Monthly Compensation shown above to
an
hourly wage figure, it
is necessary to calculate
the net
monthly hours worked for the benchmark
employee being used in this
case,
i.e. top firefighters step, 5-9 year range in longevity.
Vacation leave for the specified range
varies depending on what
year of the range one looks at for which
comparable. The Chair
has taken the average for those five years using
each comparables'
vacation accrual schedule.11 The result is as follows:
_______________
11Everett has been dropped out of the comparison at this
point for the reasons noted in the
discussion of vacation leave.
1987
Work Hours
Gross Net Average
Annual
Hours Leave Leave Hours Hours 12
KCFD # 4 2600 120 192 2288 190.67
KCFD# 39 2496 132 180 2184 182.00
PCFD #2 2768
96 202 2470 205.83
SCFD #1 2496 127 144 2225 185.42
Spokane #1 2759 104 173 2482 206.83
______________
12Gross
annual hours are taken from Exhibit 177-178.
hours are taken from Exhibits 69A and
177-178 or, in the case of
if not available in those, from the
contracts themselves.
Using
average monthly hours for each comparable divided into
total
monthly compensation results
in the following
relative
rankings
as to net
hourly wage, assuming
a 3% increase
for
Net
Hourly Wage (1987)
KCFD
#39 15.12
SCFD
#1 14.79
KCFD
#4 14.51
Pierce 13.95
Average
(all comps) 14.05
Average
(LLM) 14.52
As can be seen,
comparison
and fallen below
the average hourly
rate for the
comparable departments in the local labor
market. The Chair finds
the record convincing that
brought higher than that. Given the City's ability to pay more,
the Class II rating from which its residents
benefit, the belief
that its department is the best in the
state, the level of per-
formance
expected of members of the department,
the Chair con-
cludes
that a 1987 increase of 4.5% is justified.
A
4.5% increase in the base monthly wage
results in the
following total monthly compensation:
Total
Top
FF Monthly
Salary MEBT Educ. Comp.
2630 188 53 2871
This
amount would tie
District 12 and bring the monthly
compensation above the average.
Monthly
Compensation (1987)
Pierce 2871
KCFD
# 4 2766
KCFD
# 39 2751
SCFD
#1 2743
Average
(all comps) 2766
Average
(LLM) 2829
The net
hourly wage that results is $14.59
($2871 divided by
196.75 monthly hours); placing
hourly wage and above average for the local
labor market.
Net
Hourly Wage (1987)
KCFD
#39 15.12
SCFD
#1 14.79
KCFD
#4 14.51
Pierce 13.95
Average
(all comps) 14.05
Average
(LLM) 14.52
The
Chair realizes the increase awarded exceeds the average
increases the comparables received for 1987
as well as those the
City gave its other employees. (Ex. 144)
The benefit of those
increases was realized over one and one-half
years ago, however.
The cost to the City of paying the awarded
increase now instead of
last
money has been prudently invested in the interim. The
record
indicates the City is very well managed, so
that seems a reason-
able assumption. There is also the fact that firefighters
have
had
to get by without the
enjoyment of or
earnings on those
increases.
Both these considerations reduce the disparity between
the
1987 increases other
City employees received
and a 4.5%
increase for firefighters. Given the persuasive evidence in the
record that greater than a 3% increase is
required to bring the
bargaining
unit into more
appropriate parity with
comparable
departments, a 4.5% increase in the base
wage for 1987 is hereby
awarded.
1988 Base Salary
Regarding
the appropriate 1988 base wage increase, the Chair
starts out with a presumption that the
City's offered 3% is appro-
priate
because the parties have historically set wage increases in
the
second year of
their contract at
90% of the
percentage
increase in the
record demonstrates the City's offer exceeds
what that CPI adjust-
ment
would have been. Exhibits 128-129. It also demonstrates
that the 1988 wage increases of those
comparables for whom there
is evidence have been averaging right around
3%.
1988 salary Increases
KCFD
#4 2.50%
KCFD
#39 3.00%
PCFD
#2 2.50%
Snohomish
#1 4.00%
Average 2.92
Exhibits 193, 295.
The
same comparisons for 1988 as were done for 1987 indicate
that a 3% base increase for
position with regard to monthly compensation
and fourth for net
hourly wage.
1988
Total Monthly Compensation
Top
FF Total
Monthly Educ Emt
Salary MEBT Longevity Inc Premium Pay Comp.
KCFD #4 2873
- 9 - - - 2882
KCFD #39 2808
- 25
- - - 2833
PCFD 42 2871 - - 72 - - - 2943
SCFD #1 2790 - - 63
- - - 2853
(Exhibits
193,295,65,292.) For KCFD
#4 the top
firefighter
monthly salary is the average for the
calendar year. The figure
shown on Union Ex. 295 was not in effect
until
added longevity pay effective
Net
Monthly Compensation
Pierce 2943
KCFD
#4 2882
Snohomish 2853
KCFD
#39 2833
1988
Work Hours
Gross Net Average
Annual
Hours Leave Leave Hours Hours fn
KCFD #4 2600 120 192 2288 190.67
KCFD #39 2496 132 180 2184 182.00
PCFD #2 2696 96 202 2406 200.50
SCFD #1 2496 127 144 2225 185.42
The gross annual hours for Pierce County
Fire District have been
adjusted to reflect a reduction in the
scheduled workweek from
53.23 hours to
51.84 hours. Kirkland's
holiday leave hours
increased one shift effective 1/1/88 and
Bellevue's vacation hours
have been adjusted to reflect the additional
shift awarded effec-
tive
1/1/88.
Net
Hourly Wage (1988)
Tacoma 16
.12
KCFD 15.57
SCFD #1 15.39
Bellevue 15.18
Kirkland 15.15
KCFD #4 15.11
PCFD #2 14.68
Redmond 14.68
Kent 13.91
In light of the foregoing, the Chair is not
persuaded that the
Union's proposed 10% wage increase for 1988
is justified. The
City's proposal is adopted.
(2) New
Firefighter/Engineer Classification
Proposals: The
Union proposes that
a classification of
"Firefighter/Engineer" be created
and assigned a monthly salary 5%
greater than that assigned to the
firefighter classification at a
corresponding pay step. The City proposes no addition.
Union
Position: This classification is
intended to cover the
"driver" position as it is
currently known. The Department con-
cedes that drivers have unique responsibilities
and skills. They
must be able to drive heavy equipment under
emergency conditions
through residential, commercial and
industrial areas. They must
be
familiar with the
streets of the
service area, with
fire
control systems in commercial and industrial
buildings, and with
fire hydrant location and water
available. En route to the scene
they are responsible for both firefighters
and civilian safety.
Upon
arrival at the scene,
the driver is responsible
for
operating the equipment to maintain
necessary water pressure; he
secures the emergency scene, handles traffic
control and is relied
on heavily by Company officers for advice on
strategy and tactics.
Those same officers are initially oriented
to a new station by a
driver.
The City
has recognized the
unique responsibilities of
drivers.
In 1983, it adopted a policy requiring their testing and
certification; a process that can take from
six months to a year.
Department operating procedures require
either a Company officer
or driver to be on duty at all times. Yet, despite the clear
recognition of drivers' extra
responsibilities, to date no extra
compensation has been received, even though Chief Sterling has
personally gone on record as supporting a
premium. The Panel,
therefore, should adopt this new
classification and premium pay.
City
Position: The City argues that a
premium for drivers
has never been paid and is not customary
among the Union's compar-
ables. Only Everett and Redmond pay such a
premium. Therefore,
neither the parties' history of bargaining, nor comparison with
other departments - either those selected by
the Union or City,
supports the Union demand. Further, any ability the City had to
accede to this demand was impaired by Union
demands that would
impede management's ability to transfer
between positions. The
proposal, therefore, should be rejected.
Discussion: The Chair agrees that the record presents
com-
pelling
justification for some monetary recognition of the addi-
tional
responsibilities drivers assume. The
City does not deny
these responsibilities are significant. Its own Chief has con-
ceded he thinks some special compensation is
justified (Ex. 75).
That conclusion is all the more compelling
when one realizes that
as
a result of
department policy, drivers not only bear more
responsibility than regular firefighters,
they also suffer reduced
flexibility in when they can take time off
because of the rule
that either a driver or officer must be on
duty at any one time.
The record certainly reflects that driver pay is not yet
customary among the selected
comparables. Only Everett, Redmond
and Spokane #1 presently include this kind
of premium (Ex. 150).
Tacoma is adding a premium in 1989,
however. Thus, in larger
departments, it appears there is a trend
towards providing some
enhanced monetary compensation for drivers.
The
Chair has considered the City's reluctance to add a new
classification out
of a concern that
its ability to
transfer
between positions and reassign work is
further limited. This was
one of
the considerations supporting the decision to adopt the
City's Prevailing Rights proposal. The Chair would also note that
under Civil Service Commission rules, the
City retains the right
to reassign employees from one position to
another within the same
rank.
(Ex. 254, 54.05)
The addition of a Firefighter/Driver
classification does not create a new
rank. Id. $2.05.
Three
out of the four comparables in Washington State that
include
a driver classification utilize
set dollar steps
that
equate to a roughly 5% premium or
higher. If such an approach
were applied to the parties' present
contract, the new classifica-
tion
would fall roughly halfway between the regular firefighter
classification and the Firefighter/Paramedic
classification. The
record suggests such a placement on the
salary scale is reason-
able.
To avoid any subsequent disputes as to what this classifi-
cation
is to cover, however, the Chair finds the new classifica-
tion should
be entitled Firefighter/Driver classification. The Chair
also
finds that in recognition of the fact that a
majority of compar-
ables
do not yet include a driver premium and since Tacoma is not
adding its premium until 1989, the premium
in this case should be
added effective with the second year of the
contract, i.e. January
1, 1988.
(3) Hazardous Materials Specialist Pay
Union
Position: The Union proposes a 2.5%
premium or $60-$65
per
month for the
eleven employees serving
on the Hazardous
Materials Response Unit. It argues this premium is justified by
the significantly increased training,
responsibilities and risk to
personal safety borne by the unit, which
responds to all confirmed
chemical releases in Bellevue and surrounding
cities with whom the
City has mutual aid agreements.
Three
other cities pay a hazardous materials premium. Kent
pays $30 per month; Redmond $15 per month
and in Tacoma the rate
is $100 per month for the level for which
the Bellevue team would
qualify.
That rate increases to 4% in 1989 and 5% in 1990. The
Union's proposed 2.5%, therefore, is well
supported in the record.
City
Position: The Union proposal is not
supported by com-
parators. It seeks $60-$65 per month when the few
comparables
that offer such a premium pay $15 or $30 per
month. The City
objects to this specialty pay as well
because of a concern that
granting it would result in a reduced
ability to change assign-
ments
or make transfers.
Discussion: The City has not denied that members of the
Hazardous Materials Unit undergo additional training
and incur
greater risk when called upon to respond to
a chemical spill. It
has objected
to addition of a premium in recognition of this
primarily on the grounds that the request is
not supported by com-
parators. As to the amount being sought, the Chair
must agree.
Only
three comparables have been shown to offer
this kind of
premium.
Two that do presently offer less than half the amount
the Union seeks. The Union contends Tacoma offers $100 per
month
but this assumes members of the Bellevue
Unit would qualify for
the
Tacoma Hazardous Materials
Il/Level A not
the Hazardous
Materials I/Level B, which pays $55 per
month; an amount again
less than what the Union seeks. The Chair does not have a basis
in the record from which to make such an
assumption other than a
post-hearing affidavit.
While
the premium sought does seem too high and few compara-
tors
offer one at this time, the record does provide a number of
compelling reasons why a premium of some
sort should be added.
For one thing, Redmond jointly participates
with Bellevue in the
Eastside Hazardous Materials Response
program. Redmond will be
paying
its firefighters a premium
beginning in 1989
so it is
understandable members of the Bellevue unit
would seek one for
themselves. A second consideration is Bellevue's
relative
affluence and the very low cost item
this premium represents.
Only
eleven members of the bargaining unit would qualify. (Tr.
295)
There is also the fact that Bellevue is in a high density
corridor which increases the likelihood its
Unit will be utilized.
Perhaps
the most compelling consideration is the fact that
the record suggests the City's greatest
concern was not addition
of the premium but rather the fact that the
Union might use that
addition to further restrict the City's
ability to reassign bar-
gaining unit members to other duties. If the premium were viewed
as attached to the work and not to a
particular individual, the
City's objections would be greatly
reduced. The Chair concludes
the City has a valid concern in this regard.
If
members of the bargaining unit want the
opportunity to
earn as many specialty premiums as Bellevue
provides, it seems a
reasonable quid pro quo for the City to seek
recognition that it
retains the right to make reassignments even
if they result in the
loss of a premium. Management needs to retain the flexibility to
assign personnel to meet the operational
needs of the Department.
The Chair
finds, therefore, that additional premium pay should
only be awarded in return for recognition
that receipt of such pay
does not constitute a limitation on the
right of management to
make reassignments.
Subject to
that recognition, the Chair
finds a specialty
premium of $30/month is appropriate
effective January 1, 1988.
Until
then, Kent was the only
comparable even offering such a
premium.
The $30 exceeds
what Redmond firefighters
will be
getting
and those firefighters
don't receive a
premium until
January 1989. While this amount is less than other
department
specialists receive, the Chair finds that
appropriate because the
record does not indicate
that the amount
of time required
of
members of the Hazardous Materials Unit is
equivalent to the time
spent on those specialist duties for which a
premium is already
provided in the contract, i.e. maps
specialist, etc.
(4) Breathing
Apparatus, Small Equipment and Hose Repair,
and Naps Specialists
Union
Position: The Union proposes to
replace the current
$50 per month premium assigned to the above
specialists with a
premium equal to 2.5% of the top step
firefighters' salary. This
would amount to $60-$65 per month based on
current salary.
The
services performed by these specialists, if performed by
independent
contractors, would cost
between $25-$40 per
hour.
When the Department first awarded premium
pay in 1983 for these
specialist positions, the $50 premium
amounted to over 2% of the
top step firefighters I salary.
Over time, inflation has eroded
the value of this premium and increased the
avoided cost to the
City.
The flat dollar amount should, therefore, be replaced by
the 2.5% premium sought.
City
Position: Neither the parties' history of bargaining
nor consideration of any comparables
supports this demand. It
should, therefore, be rejected.
Discussion: These
special premiums are
already an added
benefit that members of the bargaining unit
receive in Bellevue
and would not receive elsewhere. The City is correct, therefore,
in noting that an increase cannot be
justified on the basis of
comparability considerations. The only persuasive justification
offered by the Union is the equitable aspect
of maintaining the
present value of what the benefit
reflected when added to the
contract in 1983.
Exhibit 129
indicates that the
Seattle-Tacoma CPI-W has
increased from 300.5 in the first half of
1984 to 315.6 for the
first half of 1987. This represents a 5% increase. Using this as
a general guide, therefore, even though the
Chair is aware of the
CPI's
various imperfections, one
can conclude that
today the
equivalent value of the $50 received in 1983
is $52.50. Weighing
that consideration and the fact that this
amount because of inter-
vening
salary increases represents a diminished percentage of the
top
step firefighters salary compared to when
first added, a
reasonable adjustment would appear to be an
increase to $55 but
effective only as of January 1, 1988. This dollar amount in rela-
tion
to the top step firefighters salary for 1988 would represent
approximately 2%, thus maintaining relative
parity of the premium
vis-a-vis
salary even though it is not clear whether that is what
the parties intended when adding the $50
premium in 1983.
(5) Emergency Services Coordinator
Union
Position: The Union proposes that
the current premium
for the Emergency Medical Coordinator (or
Emergency Services Coor-
dinator
as currently designated in Appendix A) be continued at 15%
of the rate for Captain. That rate was established unilaterally
by the City and it has not offered
sufficient justification to
reduce
the rate. With the expansion of the emergency medical
program,
the position carries more
responsibility than in the
past.
The City's attempted
reduction, therefore, should
be
rejected.
City
Position: The City proposes a
premium range from 5% -
15%
of the differential over Captain.
This, in effect,
was
intended to result in three steps: (1) a beginning premium of 5%;
(2) a 10% premium after six months and
satisfactory performance;
and
(3) a 15%
premium after another six months and continued
satisfactory
performance. A range
provides recognition for
improved efficiency in the job as the
incumbent learns the duties.
Discussion: The Emergency Services Coordinator is a para-
medic, usually an officer, in charge of the
Department's Emergency
Medical Services program. This program has greatly expanded in
recent years and the City does not deny that
the duties of this
position have increased as well or at least
remained the same as
when the current premium was
established. While the Chair can
understand the City's preference for a range
of premium steps, she
finds no evidence in the record to support a
reduction in the
starting point for that range from 15%. Yet, that would be the
net effect of the City's change. Whoever became EMC under the
City's proposal would initially receive 10%
less than the City had
been willing to pay previously. The Chair agrees with the Union
that sufficient justification for such a
reduction has not been
shown.
The present differential should, therefore, be maintained.
(6) Training
Coordinator
Union
Position: The Union proposes that
the premium for
Training Coordinator be the same 15% as the
Emergency Services
Coordinator
receives. The Training
Coordinator is a
senior
officer assigned to supervise the
Department's training program
and develop the annual Training Division budget. The expired
contract provided salary for this position
at the rate of 10%
above Captain but by agreement of the
parties, a prior incumbent
received a 15% differential. That was decreased to 10% when a new
Training Coordinator was
appointed. In view of the
increased
responsibilities of
this position, a
downward adjustment is
unwarranted.
City
Position: The City proposed the same
kind of range for
this position as for the Emergency Services
Coordinator, i.e. 5% -
10% - 15%.
The City wishes to establish a range in order to allow
recognition of improved efficiency on the
job. The earlier agree-
ment
to raise the premium to 15% was solely to deal with one par-
ticular
individual.
Discussion: For the reasons mentioned in connection with
the
Emergency
Services Coordinator position,
the City's effort to
reduce the initial premium paid the Training
Coordinator from 10%
to 5% is rejected. Nothing in the record justifies a decrease.
Instead, the record indicates the City's own
recognition that the
position of Training Coordinator is similar
in scope and responsi-
bility to
that of Emergency
Medical Coordinator. This
is
reflected in the City's proposal to pay both
positions comparably.
The
record is persuasive, therefore,
that Training Coordinator
should be paid the same as the Emergency
Medical Coordinator, i.e.
15% above the rate for Captain.
(7) Medical
Services Officer, Assistant Training Coordinator
Union
Position: The Union proposes that
the salary rate for
these positions be equivalent
to the top step for Lieutenant-
Paramedic
rather than maintaining the current
two steps. The
person
assigned to either
position must carry
out all its
responsibilities whether recently appointed
or not. The top step
rate, therefore, is fully justified.
City
Position: The City wishes to retain
the current two
steps so that after the appointed
individuals learn the duties
they can be given an increase in grade. That has been the past
practice and the City sees no persuasive
reason to change it.
Discussion: The position of Medical Services Officer
with
its current pay rates was just established
by agreement of the
parties in 1986. The effect of the Union proposal, given the
across the board increase granted for 1987,
would be to jump the
entry level pay rate or this position and
the Assistant Training
Coordinator over nine (9) percent.
The record does not provide
compelling reasons for granting that kind of
increase.
The
City's desire to maintain two steps is consistent with
the practice for most other positions and
reasonably reflects the
fact
that with time an individual becomes more productive and
efficient once they've learned the duties of
a new position. The
status quo, therefore, should be maintained.
(8) Staff
Services Coordinator (SSC)
Union
Position: The Union is proposing
that this position be
upgraded a step to the same rate as the
Medical Services Officer
(MSO) and Assistant Training Officer (ATO)
. The responsibilities
of the position have multiplied since it was
established in 1982.
The SSC has recently been assigned as
department safety officer,
and the department has doubled in size in
terms of apparatus and
equipment; thereby increasing the sheer mass
of things with which
this position must
deal. In addition, the mechanics
the 550
supervises have become full-time department
employees.
In
Everett and Kent, the comparable duties are performed by a
Batallion
Chief, as they were in Tacoma until recently assigned to
non-uniformed personnel. The Department itself has recognized the
unique duties, delegating to the SSC the
authority of the Chief
for the purposes of performing his
assignment. Such a delegation
is rare in the Department. The duties and responsibilities are at
least comparable to the Medical Services Officer and Assistant
Training Officer and deserve the same
compensation.
City
Position: The City contends the
present 12% differen-
tial
should be maintained to reflect the difference in rank among
individuals customarily assigned to the
positions at issue. The
SSC
is filled by
a firefighter. In
comparison, the ATO is
normally
filled by a Lieutenant, and the
MSO by a firefighter
paramedic.
The City, therefore, feels it is appropriate to have
the position of SSC one rank down.
Discussion: Both
sides have valid
arguments to make
regarding the relative rating of this
position. On balance, how-
ever, the Chair finds more persuasive the
City's position regard-
mg the appropriateness of maintaining a
different rate in recog-
nition
of the
lesser rank of the
individual assigned as SSC.
Although the duties of the position may have
increased somewhat in
the last six years, the record does not demonstrate sufficient
grounds for what would amount to a 13%
increase under the Union's
proposal.
Compelling reasons, therefore, have not been shown to
change the relative ranking on the salary
schedule.
N. Retroactivity
The
Chair has considered the parties' respective arguments as
to whether the various proposals adopted
herein should be applied
retroactively to January 1, 1987 or only
prospectively from the
date of this Award. The retroactive effect of each of the changes
being made has been considered and discussed
with the parties.
The Chair concludes that full retroactive
implementation is equit-
able, appropriate and justified by the fact
this interest arbitra-
tion
is being concluded so late in the term of the contract.
There
is one exception to this conclusion.
With regard to
changes being made to the right to grieve,
it is not the Chair's
intent to open the door to stall claims not
already raised. There-
fore, those disputes not already raised in
writing, which would
otherwise
be barred by
the time limits
of the parties'
pre-
existing grievance procedure, shall remain
barred as untimely.
IN
THE MATTER OF THE ARBITRATION
BETWEEN
CITY OF BELLEVUE, )
)
and )
) INTEREST
ARBITRATION
BELLEVUE FIREFIGHTERS LOCAL ) AWARD
1604, INTERNATIONAL ASSOCIATION )
OF FIREFIGHTERS, AFL-CIO, CLC )
____________________________________ )
After
careful consideration of all arguments and evidence and
in accordance with the foregoing findings,
it is awarded that:
Article I - Definitions
Unchanged except for the agreed revision to para-
graph I (Overtime).
Article
VII - Reductions and Recall
No change.
Article
VIII - Vacancies and Promotions
Revised to read:
Section
1. Vacancies and promotions shall be
governed by the rules and regulations adopted by the
Bellevue Civil Service Commission.
Section
2. In the case of promotions, if the
candidate with the highest score on the
applicable Civil
Service eligibility list is not appointed,
that candi-
date
shall receive a
written explanation as
to why
another candidate was considered best
qualified.
Article
XI - Overtime
Revised
to read as follows (new language
underscored):
A. In
the event that a need for overtime should occur
in the Department, it shall be paid at
one-and-one-
half
(1-1/2) times the basic hourly
rate of pay.
Subject
to prior approval
of the Department,
employees entitled to overtime
pay may elect to
receive compensatory leave at the rate of
time and
one-half in lieu of monetary payment at the
same
rate.
B. An
employee called in for overtime work shall be
paid at least a four (4) hour minimum at the
over-
time rate of pay. The aforementioned 4-hour mini-
mum shall not apply to employees
(a) held over the one hour immediately
following
the
termination of their regular duty shift,
(b) to employees required to attend
departmental
meetings
on their off-duty time, or
(c) to employees who elect to leave when the
work
is
done if
the time worked is
less than 4
hours. In that event, overtime pay shall be
only
for actual time worked, computed to the
nearest
quarter hour.
C. Probationary firefighters
called in for
training
purposes will be paid overtime at
one-and-one-half
(1-1/2) times their basic rate. Employees required
to attend E.M.T. training or testing off-duty to
obtain initial certification or to maintain certi-
fication
shall be paid at the overtime pay rate for
actual
class time. Off-duty E.M.T. training or
testing to recertify as an E.M.T. after certifica-
tion
has lapsed due to the election or poor
formance
of the employee shall not be compensated.
D. Employees who
attend school or
conferences off
shift
at the Chief's
request will be
paid the
employee's straight-time hourly rate for
time spent
in
the classroom. Employees required
to attend
department meetings on their off-duty time
shall be
paid at the overtime rate of pay for actual
time in
such meetings.
E. Overtime
shall be scheduled in accordance with the
provisions of Section 12.04 of the
Department Oper-
ating
Procedures as updated in 1982 (update OP 82-
36) amended as follows:
1. If no suitable employee can be
secured for an
overtime detail after the appropriate
list(s)
have been called through completely one
time,
the employer may mandatorily
assign the over-
time
detail to one
of the first
three
employees
contacted by calling
through the
list in order a second time after giving
con-
sideration
to the needs of the three employees
so contacted.
F. The
work days and hours of the Emergency Medical
Coordinator
and Training Director
may be varied
without overtime liability provided the
total hours
worked in a week do not exceed forty (40).
Article
XII - Hours of Duty
The
City's Proposal is adopted subject to the fol-
lowing revision of paragraph three:
Temporary or permanent involuntary
assignments
of employees in the bargaining unit to any
of
the above divisions or sections may be made
to
meet
department needs when
an acceptable
volunteer cannot be found.
Article
XIII - Shift Exchanges
The
City's Proposal is adopted subject to the fol-
lowing revision (underscored) of the first sentence of
paragraph 3:
Except
for personal emerging
or to attend
school
related to fulfilling
Civil Service
requirements
for promotional exams and other
job
related educational endeavors,
each
employee shall be granted up to four (4) dis-
cretionary
shift trade requests per calendar
year regardless of the reasons for the trade
as long as all other pertinent criteria are
met.
Paragraph
7 of the City's proposal is revised to
read:
7. In the
event the substituting employee
fails to appear, the requesting employee, if
at work, has a continuing obligation to per-
form their duty. Therefore,
the requesting
employee shall remain on shift until
properly
relieved.
Furthermore, the substituting
employee
shall be subject
to all normal
departmental
disciplinary procedures, where
applicable, for failure to appear.
Article
XVI - Holidays
No
change.
Article
XVII Vacation Leave
New
Section added to read:
B. Effective January
1, 1988, the
above vacation
schedule shall be increased as follows for
24 hour
shift personnel:
Years of Vacation Hours
per Calendar
Continuous
Service Shifts
Month of Service
1 through
4 6 12
5 through
9 7 14
10
through 14 8 16
15
through 20 9 20
More
than 20 10 18
Day
shift personnel shall receive a pro-rata equiv
alent of the foregoing 1988
vacation increases
based
on annual hours worked compared to the annual
hours
worked by 24 hour shift personnel.
Article
XVIII - Emergency Leave
No
change.
Article
XX - Prevailing Rights
The City's Proposal is adopted subject to
revision
of subparagraph A to read: "To discipline, sus-
pend,
demote, discharge employees for just cause."
A
final paragraph is added
stating: "The City
agrees that a continuing duty to bargain
exists as
to those enumerated rights that affect
wages, hours
and working conditions within the meaning of
RCW
Chapter 41.56."
Article
XXIV Grievance Procedure
Paragraph one
- Union proposal
adopted. New
language
reads:
A
'grievance' means a claim or
a dispute by an
employee or the Union with respect to the interpre-
tation or
application of the provisions
of this
Agreement.
The Union has the right, in its own
capacity,
to act as
an aggrieved party
in the
grievance procedure.
Step
1 - amended to read:
The Union or an employee shall present a
grievance
to the employee's supervisor, who shall give
his
oral answer within five (5) business days
after it
is presented to him; provided, however, that
if a
grievance is filed by an employee without
assist-
ance
of the Union, the Union shall be given notice
of the grievance and an opportunity to be
present
at any adjustment of the grievance.
Step
3 - amended to add the following paragraph:
In the case of disciplinary actions, both
appealed
to the Civil Service Commission and grievable under
the terms of this contract, an election of
remedies
shall be made after receipt of the Step 3
response.
An employee may elect to either pursue an
appeal to
the Civil Service Commission or continue
with the
contractual
grievance procedure, but
not both.
Time
limits will be extended for either side if
necessary
to complete a reasonable
investigation
before the election of remedies is made.
Last paragraph - The sentence: "Nor shall any dis-
ciplinary actions
which may be
appealed to the
Civil Service Commission be considered grievances
and subject to the grievance procedures
herein" is
deleted.
Appendix
A
(1) The
monthly salaries shown on Appendix A shall
be
increased as follows:
Effective
1/1/87 4.5%
Effective
1/1/88 3.0%
(2) Effective
January 1, 1988, a new classifica-
tion "Firefighter/Driver is
added to the
salary schedule with pay rates 5% above
those
shown for the firefighter classification.
(3) Appendix
A shall be revised to state regarding
premium
pay: "Receipt of
all premium pay
shall be contingent upon the specific
assign-
ment and
the continuous performance
of the
assigned duties. The City retains the right
to make reassignments that result in a loss
of
premium pay.
(4) Effective
January 1, 1988, the premium pay set
forth in paragraphs B-D shall be increased
to
$55/month.
A new subparagraph
E shall be
added thereunder
and read: "Hazardous Mate-
rials
Specialist: $30/month effective 1/1/88.
(5) The
current salary for the Emergency Services
Coordinator
and Training Coordinator
shall
remain 15% above the rate for Captain.
Retroactivity
The changes adopted in this Opinion and
Award shall
be retroactive to January 1, 1987; provided,
how-
ever, that with respect to the right to file
griev-
ances, claims
not already presented
in writing,
which would otherwise be barred by the time
limits
of
the parties' pre-existing
grievance procedure,
shall remain barred as untimely.
Dated this 15th day of June, 1988.
Janet
L. Gaunt, Panel Chairperson