International
Association of Fire Fighters, Local No. 2088
And
City
of
Interest
Arbitration
Arbitrator: Thomas F. Levak
Date
Issued:
Arbitrator: Levak; Thomas F.
Case #: 05714-I-85-00129
Employer:
City of
Date Issued:
BEFORE THE ARBITRATION PANEL
THOMAS F. LEVAK, NEUTRAL CHAIRMAN
AND IMPARTIAL ARBITRATOR
In the Matter of the Interest
Arbitration Between:
FINDINGS
OF FACT,
CITY OF
THE
"CITY" AND
AWARD
and OF
THE NEUTRAL CHAIRMAN
INTERNATIONAL ASSOCIATION AND IMPARTIAL
OF FIREFIGHTERS, LOCAL NO.
2088 ARBITRATOR
THE
"
I. INTRODUCTION.
This case is an interest arbitration
under the terms of RCW
41.56.450 et.
seq.
The City and the
collective
bargaining agreement in effect for the period of
"Current
Agreement"). In August 1984, the parties commenced
negotiations
for a new Agreement. State mediation followed in
February 1985. Following
negotiations and mediation, the parties
remained
at impasse.
An Arbitration Panel was convened to resolve the dispute,
composed
of Neutral Chairman Thomas F. Levak, City Arbitrator
Franklin
L. Dennis and Union Arbitrator Michael J. McGovern.
An
arbitration
hearing was held on
the
City,
Gerard
F. Gasperini and Arral A.
Phipps. The
represented
by Thomas H. Grimm.
At the conclusion of the hearing, the parties stipulated and
agreed
that post-hearing briefs would be filed with the
Arbitration Panel and
postmarked
Neutral Chairman would then
draft a tentative Findings,
Determination and Award, and
would thereafter consult by
telephone
with the two partisan arbitrators; and, that after such
telephone
consultation, the Neutral Chairman would write and
execute
his final Findings, Determination and Award.
On
tentative
Findings, Determination and Award. On
the
Neutral Chairman held a telephone conference call
consultation
with the two partisan arbitrators. Based upon the
evidence,
the arguments of the parties, and his consultation with
the
partisan arbitrators, the Neutral Chairman hereby renders the
following
Findings, Determination and Award.
II. BACKGROUND.
The City is located on
approximately 3
miles due east of
10 miles south of the City of
of
The City encompasses approximately 4.3 square miles, and has
a
permanent residential population of approximately 4,600
persons,
of whom approximately 40% reside in single family units
and
60% reside in multi-family units.
The predominant characteristic of the City is that of a
commercial
industrial center operated and utilized by
approximately
50,000 non-resident persons. Over 80% of the
buildings
within the City are commercial structures larger than
10,000 sq. ft., and 95% of
those buildings have been constructed
under
extremely strict building and fire codes, including the
requirement
that all such buildings have fire suppressive
sprinkler
systems.
The City's Fire Department is composed of a Chief and an
Assistant Chief, seven
lieutenants and eighteen firefighters.
As a direct result of the
relative "fire-proof" nature of the
commercial
structures located within the City, fire loss within
the
City is extremely low, and the risk of injury to firefighters
is
also very low. Firefighters are largely engaged in preventive
fire
activities.
Since 1972, the
bargaining
representative of the bargaining unit members of the
Fire Department; and since
that time, the parties have been
signatory
to a continuous succession of written collective
bargaining
agreements, culminating in the Current Agreement.
III. EXHIBITS.
Jt.
Ex. 1: The Current Agreement.
Jt.
Ex. 2: The annual fire report,
1984 Jt. 3 RCW 4156.405-
460.
Union Ex. 1: Vita
of David Roger Knowles.
Union Ex. 2: Map.
Union Ex. 3: Comparability
group no. 1.
Union Ex. 4: Comparability
group no. 2.
Union Ex. 5: Summary
of data sources.
Union Ex. 6: Kelly
day computation.
Union Ex. 7: CPI
chart.
Union Ex. 8: Group no. 1 CPI comparison.
Union Ex. 9: Group no. 2 CPI comparison.
Union Ex. 10: City workload history.
Union Ex. 11: Photograph.
Union Ex. 12: 1984 alarm comparison.
Union Ex. 13: Visitors' guide.
Union Ex. 14: Chamber of Commerce materials.
Union Ex. 15: Dependent medical comparisons.
Union Ex. 16: Longevity documents.
Union Ex. 17: Two 1975 comparable cities.
Union Ex. 18: August 1984 comparability chart.
Union Ex. 19: August 3, 1984 Union proposal.
Union Ex. 20: McFarland grievance.
Union Ex. 21: Krebs arbitration award.
Union Ex. 22: Wage survey - 1985 supplement.
Union Ex. 23: March 27, 1980 Clark letter.
Union Ex. 24: May 20, 1983 Lomax letter.
Union Ex. 25: Kent bargaining agreement.
Union Ex. 26: Portion of Gasperini letter.
City Ex. 1A: Seniority
list.
City Ex. 1B: Birthdate list.
City Ex. 1C: Fire
Department employee profile.
City Ex. 2: City's
final proposal.
City Ex. 3: April
6, 1976 arbitration award of
Charles
S. LaCugna.
City Ex. 4: [none]
City Ex. 5: Washington
city employee salary and
benefit survey for 1984.
City Ex. 6: Washington
city employee salary and
benefit survey for 1985.
City Ex. 7: Table
13, official April 1, 1984
population of Washington cities and towns.
City Ex. 8: 1985
scale version of SCSBS data: firefighter.
City Ex. 9A: 1985
actual wage rates between City and comparable
cities.
City Ex. 9B: 1985
actual wage rates between City and cities of
15,001
to 50,000 population.
City Ex. 9C: 1985
actual wage rates between City and cities
5,000
to 15,000 population.
CityEx. 10: Work
hours, wages, number of employees and
populations: comparable cities.
City Ex. 11: [none]
City Ex. 12A: May 1985 CPI.
City Ex. 12B: May 1985 Seattle-Everett CPI.
City Ex. 12C: 1984 Seattle CPI.
IV. WITNESSES.
Union Witnesses:
David Knowles, Asssociate Professor
of Economics.
Sam Ruljancich,
Firefighter and Union Official.
City Witnesses:
Hubert Crawley, Fire Chief
Don Morrison, City Administrator.
Richard Emberger, Mayor's Intern.
V. THE ISSUES.
Issue No. 1: Article XVII, Wages.
Issue No. 2: Article IX, Hours of Work.
Issue No. 3: Article XXVII, Medical Benefits.
VI. ISSUE NO. 1: WAGES.
Salaries in effect under the Current Agreement are as
follows:
Captain - $2,656; Lieutenant/Inspector - $2,531; 1st
Class Firefighter - $2,296;
2nd Class Firefighter - $2,185; 3rd
Class
Firefighter - $2,069; Probationary Firefighter - $1,964.
Both parties propose a two-year agreement.
The City proposes a 3.5% across-the-board increase on all
current
bargaining unit wages effective January 1, 1985, and an
additional
4.0% across-the-board increase on all 1985 bargaining
unit
wages effective January 1, 1986.
The Union proposes a total increase for 1985 of 7%, to be
implemented
through a 3.5% increase on January 1, 1985, and an
additional
3.5% on July 1, 1985. Effective January 1, 1986, the
Union proposes to increase all
1985 wages to the average hourly
wage
of the comparable cities presented by the Union, and in
addition a
cost of living increase percentage equal to the West
Coast Cities Consumer Price
Index, with the COLA at a minimum of
4%
and a maximum of 6%.
Union Contentions. The Union argument
was presented by
Associate Professor of
Economics David Knowles and by Union
Representative Sam Ruljancich. Knowles specializes in the area
of
labor economics, with particular emphasis on the impact of
legislation
on wages in the public sector. He has served as an
expert
witness in at least four other firefighter interest
arbitrations.
Knowles testified that in his opinion, the key element to a
valid
comparison of employee wages is to compare employers and
employees
in the same labor market, which is now deemed by the
federal
Bureau of Labor Statistics to be the Seattle-Everett
Area.
He testified that the most functionally predictable area
within
that labor market is the 1-5 Corridor from Everett to
Tacoma. He testified that all
economic stimula are relatively
the
same within that area. He excluded the westside of
Puget
Sound on the basis that
economic stimula are different within
that
area and not predictable.
Knowles testified that because the City does not have a high
resident
population, it was impossible to apply the statutory
factor
of comparability based on population. Instead, he based
comparability
upon the relative size of bargaining units within
the
Seattle-Everett labor market. He testified that bargaining
unit
size was relevant to the complexity of duties involved
within
the various fire departments.
Knowles testified that he excluded from his consideration
unorganized (non-union)
bargaining units under the rationale that
conditions
within unorganized units are significantly dissimilar
from
those in organized units. He testified that they exist
under
different legislative mandates, and that different forces
are
at work in the two types of departments.
Knowles testified he also excluded from his consideration
eastern
Washington bargaining units because of significant
differences
in the cost of living in eastern Washington cities,
and
because of other variables. He further testified that there
are
sufficient bargaining units within the Puget Sound I-5
Corridor of similiar size to the City's firefighter unit to
perform a
valid comparability study using those units alone.
Knowles utilized two groups of fire departments in his
comparison
analysis: the first group was composed of a list of
departments
which were supplied to him by the Union, and which
the
Union represented had been historically used by the parties
in
making wage comparisons.
He utilized the first group, but also created a second group
by
removing departments from the first group that he felt were
not
substantially comparable to the City in size of bargaining
unit.
Group no. 1 was composed of the following departments:
Kent, Renton, Pierce County
Fire District 2, King County Fire
District 39, Auburn, Port of
Seattle, Snohomish County Fire
Department 1, Redmond, King
County Fire Department 4, Kirkland,
Pierce County Fire Department
9, Lynnwood, Puyallup, Mercer
Island,
King County Fire District 16, Edmonds and Bothell.
Group no. 2 consisted of Redmond, King County Fire District
4, Kirkland, Pierce County
Fire District 9, Lynnwood, Puyallup,
Mercer Island, King County
Fire District 16, Bothell, Edmonds,
King
County Fire District 11 and King County Fire District 2.
The number of bargaining unit
employees in the first group ranges
from
nineteen to seventy-eight, while the number of bargaining
unit
employees in the second group ranges from sixteen to thirty-
five.
Knowles also testified that he considered assessed valuation
and
annual alarms in reaching his conclusions, but primarily
relied
upon bargaining unit size.
In assessing the comparative status of City firefighters,
Knowles testified that in his
opinion, the average hourly wage of
firefighters
within a department is the sole relevant variable in
the
comparison of wages. He testified that there is simply no
other
way to compare groups of firefighters than to compare them
on
the basis of their average hourly wage.
Knowles found that a City firefighter's $2,296 monthly
salary
and 53.4 average hours per week yielded an hourly pay rate
of
$9.92. By comparison, he found that the hourly average among
the
other cities and districts compared in his first group was
$11.49, a dollar difference of
$1.57, and a percentage difference
of
15.8%. Utilizing the same methodology with his second group
of
bargaining units, Knowles found that City firefighters were
19.9% below the average hourly
wage in those cities and
districts.
Knowles testified that, in this case, he did not consider
the
Consumer Price Index to constitute a proper criteria for wage
analysis.
He reasoned that where a unit is already behind other
bargaining
units, and all units receive CPI increases, the lower
unit
will fall still further behind.
Ruljancich testified that all of the
cities within Knowles'
first
group had been used at one time or another, "by the Union
and,
at times, by the City." He testified that in 1975, the
Union and the City agreed that
certain other departments were
comparable:
Kent, Auburn, Redmond, Lynnwood, Puyallup, Edmonds
and
Bothell.
Ruljancich testified that he had made
a study of units
within
the 1-5 Corridor, and had found that those units had
settled
their 1985 and 1986 wages at rates that were higher than
percentage
increases in the Consumer Price Index. He also
referred
to Union exhibits which demonstrated that the 1984-85
average
increase for departments in Knowles' first group was
4.6%, while the
Seattle-Everett CPI-W 1984 average was only 3.3%.
He also referred to a second
Union exhibit which demonstrated
that
the 1984-85 average increase within the second group was
4.1%.
Ruljancich also testified regarding
the historical inclusion
of
Kent and Renton in the cities that have been deemed comparable
by
the parties, noting that Kent and Renton have mutual aid
agreements
with the City. He further referred to the large
number
of specific mutual aid calls between Kent, Renton and the
City.
Union Ex. 12 demonstrates that the City does approximately
the
same kind of work as the comparison units, because its fire
calls
indicate about the same percentage of work as those other
cities.
Union Ex. 6 shows the number of Kelly days that are
necessary
in conjunction with a percentage pay increase to be
equivalent
to the $11.49 an hour that the employees in group no.
1 receive and the $11.90 per
hour that employees in the second
group
receive.
Even if the full amount of the firefighters' proposal is
granted
by the Neutral Chairman, firefighters will not receive
the
1985 average salary for either of the two groups cited in
Knowles'
study.
The city's comparisons are not valid and reasonable. The
basic
analysis contained in Employer exhibits was not based upon
any
objective standard. Indeed, the City's chief witness,
Richard Emberger,
conceded that some comparable cities were not
included
in the analysis, that he had not reviewed all of the
contracts
to indicate whether the data was accurate, and that at
least
the data for Kent was inaccurate. He testified that cities
were
selected on the basis of the number of employees, work hours
and
population, but he never did explain the objective standards
within
these categories that he used to include some cities and
exclude
others. Thus, his analysis is inherently suspect and
deserves
little weight, because it appears to have been developed
to
make a point, not to demonstrate objective fact.
In addition, data utilized by the City in several of its
exhibits
is 1984 data only. So if the Neutral Chairman utilized
the
City's skewed results, it would still end up with the City a
year
behind other groups, trying again for a catch-up in future
negotiations.
The City this year speaks in its exhibits to so-called
"actual"
wages. However, the parties have always bargained based
upon
the top firefighter salaries. Within the City, most
firefighters
fit into that top category. The City presented no
evidence
at the hearing how its "mean" salary was derived, but
that
salary is lower than the top firefighter salary range
figures
shown in Employer exhibits. That data suggests that the
departments
listed in Employer exhibits are not employing
firefighters
of like longevity and skills to City firefighters.
The Neutral Chairman is also referred to the standard of
"changes
in comparisons." Negotiations in this case took so long
that
early comparisons done by the Union and submitted to the
City were proven to result in
too low a differential between the
City
and the actual average. Contract data reflected in Union
exhibits
aptly demonstrate that the discrepancy for 1985 on wages
is
not the 9.5% originally thought but either 15.8% or 19.9%. As
time
went on, the comparisons became more accurate because of
contract
settlements providing more data sets. The firefighters
were
continually trying to set their sights on a moving target.
This caused the Union to adhere to a one-year
duration
demand,
even after discussions of a two-year agreement. Only
days
before the arbitration hearing, the Union agreed upon the
two-year
duration because the greater part of 1985 was already
past.
The City then tried to prevent the Union from presenting its
final
proposals, claiming that those final proposals had not been
submitted
during negotiations. No authority for the objection
was
cited, and this is simply a case of the pot calling the
kettle
black.
The City's position at the arbitration hearing was also new.
The evidence showed that the
Union was the only party that made
any
formal wage proposal. The City presented no evidence of any
formal
proposals. during the hearing. The standards of RCW
41.56.460 make
no reference to consideration of the proposals
raised
during bargaining. Therefore, the real issue is what
firefighters
deserve, applying the statutory factors.
The firefighters' last proposal presented at the arbitration
hearing
was the culmination of crash attempts to settle the case
prior
to the hearing. However, if the Panel chooses to agree
with
the City position and disregard the Union's last proposal,
the
only fair thing to do is to implement a 9.5% wage increase
for
1985 with a CPI/minimum 3% for 1986, and seriously reduce the
average
hours worked. Since the City has offered 4% in the
second
year, the Union proposal for 1986 should then be increased
accordingly.
The Neutral Chairman is also referred to the "other
relevant
factor"
standard contained in RCW 41.56.460(f). While the hourly
pay
of City firefighters has increased since 1976, the manning
has
essentially been the same, alarms have increased, and the
assessed
valuation protected by the firefighters has dramatically
increased.
In short, the hourly pay has fallen seriously behind
the
amount of work that is required of the firefighters by a
factor
of approximately 2-to-1. The City concedes that there is
increased
productivity with reduced resources, and that
firefighters
are efficient.
City Contentions. First of all, the
Neutral Chairman is
reminded
that the Union has, in effect, submitted two wage
proposals.
Its first proposal was its initial bargaining
proposal
submitted during negotiations, which consisted of a
demand
for a 9.5% salary increase for 1985 and a CPI/minimum
increase
of 3% for 1986. Then, during the middle of the
arbitration
hearing, and only when the Neutral Chairman called
for a
submission of the parties' final bargaining positions, did
the
Union submit its latest proposal for a 3.5% plus 3.5%
increase
for the first year and its new CPI formula demand for
the
second year. The Neutral Chairman should properly consider
only
the first proposal by the Union.
Turning to the first statutory factor of comparability, that
factor does
specifically mandate that the comparison be between
cities
similar in size, and that the pool of comparison be on the
West
Coast. The statute thus indicates the legislative
determination
that population is the best indicator of
comparability.
However, as noted by arbitrator LaCugna in his
1976 interest award, Tukwila
is a unique city, and, "the
comparability
guide fails,***, because no other city is similar
to
it, much less identical with, Tukwila."
In any event, the Union's selection of comparable cities is
fatally
flawed since it focused completely on its self-interest
and
did not comply with the mandate of the controlling statute.
Knowles conceded the following
on cross-examination: that the
"historical
comparables" were provided him by Ruljancich, and
that
he was not aware on what basis they constituted historical
comparables;
that he considered only the three contiguous
counties
along the I-5 Corridor on the west coast of Puget Sound;
and
that he considered the size of the bargaining unit, not the
size
of the community.
The Union's method for selecting comparable cities is
noteworthy
because of the criteria used to exclude possible
comparison
cities. The Union excluded all West Coast cities that
were
not contained in the three contiguous counties along the I-5
Corridor from Olympia to
Everett; it excluded all non-union fire
departments;
it excluded all cities on the Olympic Peninsula; and
it
excluded all cities of King, Thurston and Snohomish Counties.
The Union totally disregarded the statutory requirement
that
the comparison be made with cities of "similar size."
Knowles testified that he did
not even know the population of the
City,
nor any of the cities selected as Union comparables. He
did
not know the mix of commercial, residential and industrial
property
in Tukwila. He did not know the type of services
required
of an industrial fire force such as that of the City's.
He was unaware of the mix of
the industrial, commercial and
residential
components of the comparison cities; whether the
comparison
hours included vacation hours or were just scheduled
hours;
whether the comparison cities had comparative benefits or
even
that firefighters are paid on a salary basis. Further, he
was
unable to explain the generally accepted method of the
scheduling
of firefighters.
It is not unexpected that, given the Union's selection
criteria,
that the City would have the lowest pay and highest
hours
worked within the Union's survey. When asked if there was
any
fire department or district within the three counties that
the
Union restricted its analysis to, the Union could not name
one.
From this analysis, Knowles recommended that the Union be
awarded a
significant increase. That selection criteria is
precisely
what arbitrator LaCugna meant when he stated that the
parties
select cities "in the pursuit of their own interests."
The Union did not even include
one comparison city which pays its
firefighters a
lower salary than the City pays its own.
In comparison, the City, recognizing the inherent
shortcomings
of the comparison approach, compared the wages and
hours
of City employees to all other cities in Washington with
populations
between 5,000 and 50,000, and between 15,000 and
50,000. The City entered into
evidence the Washington Employees
Salary and Benefit Survey for
1985 from which all figures were
derived.
That publication is effective March 15, 1985 and
includes
wage increases for 1985.
The actual average salary in 1985 for a City firefighter,
including
the 3.5% wage increase offered during negotiations, is
$2,359.80.
The average for all cities within the 5,000-15,000
population
range was $1,908.58. When the same comparison is made
between
the City and all cities between 15,000-50,000, the City's
actual
average salary remains at $2,359.80, whereas the actual
mean
and weighted' average for all other cities within the
population
range is $2,180.60 and $2,261.18 respectively. The
City's average salaries are
greater than the average for many
cities
up to ten times larger in population.
The City arrived at its comparison cities through the
following
criteria: population, size of the work force,
proximity
to the City and whether the City had a mutual aid
agreement,
and formerly utilized comparables. Based on those
criteria,
the City selected seventeen cities from all parts of
Washington,
and included cities with both greater and lesser
salaries.
The actual mean wage and weighted average mean salary
of
the comparables is $2,201.76 and $2,221.86, respectively;
whereas
the City's was $2,359.80 and $2,376.36. The City's
average
salary is approximately $150 a month greater than the
comparable
cities.
The second statutory factor of Consumer Price Index also
favors
the City. The uncontroverted Consumer Price Index
statistics
presented by the City indicate that between May 1984
and
May 1985, the CPI for Seattle-Everett was 1.9%. The Consumer
Price Index from January 1984
through December 1984 was only
2.75%.
The final factor mandated by the statute consists of those
things
"normally or traditionally taken into consideration." The
LaCugna
award referred to those other factors. The City, in
1985, continues to be a very
desirable place to work.
Since the time of the LaCugna
decision, the Fire Department
has
had a turnover of only three employees, and the average age
of
the Department has steadily increased due to the high rate of
retention.
When the City opens up applications for firefighter
positions,
it normally receives several hundred.
The physical facility and equipment of the Department are
impressive.
The firehouse is a pleasant place to work. The City
has
an active capital investment program to update its
firefighting
equipment.
The City has never had a fire-related death among its
employees.
Fire losses for 1983 and 1984 are extremely low for a
City
with an assessed valuation of over $800,000,000.
Given the nature of the community, the majority of calls are
from
the business community and are mostly during the day-time
business
hours.
Determination and Award. Based upon
the evidence and
application
of the statutory factors thereto, the Neutral
Chairman determines that the
increases proposed by the City shall
be
implemented. The following is his reasoning.
(a) The constitutional
and statutory authority of the
employer.
This factor was not made an issue by either party and is
not
relevant to the Neutral Chairman's Determination and Award.
(b) Stipulations of the
parties.
The parties did not enter into any relevant stipulations of
fact
or law.
(c) 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
like
employers of similar size on the west coast of the United
States.
This factor most strongly supports the position of the
City.
First of all, the factor mandates that comparability be
based
upon wages of "like personnel" employed by "like
employers."
The language of the statute is very specific, and
differs
significantly from " common law" comparability language
developed
by labor arbitrators and the language found in the
statutes
of most other states, in that it restricts the
Arbitration Panel to a
comparative analysis of the exact same
types
of governmental units. The common law and most statutes
simply
direct an arbitrator to compare the wages of employees
employed
by the unit at issue with wages received by "other
employees
performing similiar services in public employment and
in
private employment," a much broader form of directive.
It is readily apparant that
"like personnel" are commonly
employed
by unlike employers. For example, cities, counties and
fire
districts all employ firefighters. However, cities,
counties
and fire districts are most certainly not "like
employers;"
and the statute makes it very clear that the like
personnel
utilized in any comparability analysis must be
employed
by like employers.
In the case at hand, the City has placed its focus entirely
upon
like employers, viz., other cities. The Union has focused
its
primary attention on both cities and unlike employers, viz.,
fire
districts. Accordingly, the City's analysis is, on its
face,
more valid under the statute than that of the Union.
The second important mandate of the comparability factor
relates
to like employers "of similar size." Within the
disciplines
of public sector political science and labor
relations,
"size" refers to resident population. Every
governmental
assistance agency of which the Neutral Chairman is
aware
rates and ranks governmental units by their actual
population;
and it is those statistics that are uniformly used by
adversarial
parties in factfindings and interest arbitrations.
In this case, there has been
no evidence presented that would
lead
the Neutral Chairman to conclude that the legislature
intended
"size" to encompass either geographical boundaries, the
overall
employee complement, or the bargaining unit.
It might be argued that population size is not a static term
relating
only to the night-time resident population, but must be
considered a
term of art; and that where public employment is
concerned,
population size should relate to the number of persons
actually
served by the governmental unit. It might also be
argued
that an arbitrator should consider the total number of
employees
employed by the governmental unit, or the total number
of
employees within the bargaining unit, or the total tax
revenues
of the unit, or total expenditures of the unit.
However, there is no evidence
that the legislature intended such
applications
of the statute. Again, the statute has been very
narrowly
drafted.
In the case at hand, the City has focused its attention on
cities
of similar size. Indeed, it has compared itself to
cities
of much greater size. On the other side of the coin, the
Union has taken the position
that because of the alleged
uniqueness
of the City, population cannot be used as a basis for
comparison.
In substance and effect, the Union has simply
ignored
the confines of the statutory comparability factor.
The Neutral Chairman concedes that, under the evidence
before
him, the City appears to be somewhat unique. However, the
Neutral Chairman is totally
unconvinced that cities comparable to
the
City do not exist on the West Coast. Indeed, several
similiar cities in Northern California readily come
to mind. Be
that
as it may, any regional uniqueness of the City cannot
detract
from the applicability of the statute. It is not the
function
of the Neutral Chairman to re-write the statute based
upon
some concept of equity and uniqueness. That authority rests
solely
with the legislature. It is the Neutral Chairman's
function
to apply the evidence to the statute. In this case,
that
evidence strongly favors the City.
The third important part of the comparability factor relates
to a
comparison of like employers on the West Coast. In the case
at
hand, while neither party has examined the States of Oregon
and
California, the District has at least focused its analysis
both
on those cities located in geographical proximity to the
City, and also those of like
size throughout the Puget Sound area
and
throughout the State. On the other side of the coin, the
Union has focused its
attention only on cities within the Tri-
County
area, and only on those in the 1-5 Corridor.
Such a narrow
focus
would have been justified only: (1) if comparable cities
could
not have been found through a thorough search of West Coast
cities,
and (2) had a sufficient number of "like employers of
similar
size" existed on the 1-5 Corridor with which to make a
reasonable
comparison.
Other portions of the Union's comparability evidence are
also
troublesome. First, the Union's elimination of unorganized,
non-union
city fire departments and fire districts necessarily
taints
and renders unreliable the Union's entire comparability
study.
Most certainly, the statute does not contemplate or allow
the
exclusion of unorganized employers. Quite to the contrary,
the
statute mandates a comparison of all like employers. Second,
it
is impossible for the Neutral Chairman to know what
comparable
cities the Union may have left out of its study under
its
"organized v. unorganized" theory.
Next, the Union's evidence is further tainted and rendered
unreliable
by the exclusion of all statutorily comparable cities
that
pay a lesser wage than does the City. The exclusion of
such
evidence must necessarily be deemed to render its study
biased
and weighted with a specific result in mind.
In summary, the City's evidence established that the actual
average
salary in 1985 for a City firefighter, including the 3.5%
wage
increase offered by the City during negotiations, is
$2,359.80.
The actual average for all cities within the
population
range of the City was $1,908.58. Even when the City
is
compared to all cities in the 15,000 - 50,000 population
range,
the actual mean salary within those cities is $2,180.60,
and
the weighted average is $2,261.18. Thus, the City's average
salary
is presently greater than the average within cities much
larger
in population than the City.
The Neutral Chairman agrees with the City's position that
average
salary is the strongest measure of comparability.
However, the Neutral Chairman
has also examined all submitted
evidence
with an eye to low salaries and high salaries, and finds
that
City salaries are also comparative at those ranges.
(d) The average consumer
prices for goods and services,
commonly known
as the cost of living.
The City's evidence concerning increases in the Consumer
Price Index during recent
years was unrebutted and
uncontroverted. As noted above, between May
1984 and May 1985,
the
urban wage earners and clerical workers' CPI for the Seattle-
Everett area was 1.9%
annually. The Consumer Price Index from
January 1984 through December
1984 increased only 2.75%.
Thus, wage increases under the Current Agreement have kept
pace
with increases in the CPI; and wage increases proposed by
the
Employer for 1985 and 1986 will most certainly keep pace with
increases
in the CPI through December 1986.
It should be stressed that the Neutral Chairman is not a
fortune
teller and cannot see into the future. However, the
Neutral Chairman's Award must
be based upon the evidence. In
that
regard, the Union presented no evidence that the CPI could
reasonably
be expected to exceed 4.0% during 1986.
(e) Changes in any of the
foregoing circumstances
during
the pendency of the proceedings.
This factor has no direct bearing on the Neutral Chairman's
Determination
and Award. While the Union poined[sic] to some changes
which
occurred during negotiations and during the pendancy
of the
arbitration
hearing, none of those had any effect on factors (a)
through
(d). In particular, there were no relevant changes in
the
wages of like personnel of like employers of similar size
that
would lead the Neutral Chairman to any different result. To
the
contrary, the evidence most relied upon by the Neutral
Chairman, that presented by
the City, took into consideration
wages
of fire personnel employed by cities of comparable size in
effect
through May 1985. Similarly, no relevant changes took
place
within the CPI that were not properly considered by the
City.
(f) Such other factors,
not confined to the foregoing,
which
are normally or traditionally taken into consideration in
the
determination of wages, hours and conditions of employment.
The primary traditional factor relates to an employer's
ability
to pay a requested wage increase. In the case at hand,
the
City does not assert that it does not possess the financial
ability
to implement the Union's proposal. However, ability to
pay
is viewed by the Neutral Chairman more as a condition
precedent
to consideration of the statutory factors contained in
paragraphs
(a) through (e) , rather than as a separate,
independent
basis for a wage increase. In addition, ability to
pay
is generally considered a relative, rather than an absolute,
factor
because of the many obligations of a public employer. In
any
event, ability to pay would only have become a factor had the
Union established: (1) that
fire department personnel of the City
suffered
in comparison to like personnel of like employers of
similar
size, or (2) that the wages of City firefighters had
failed
to keep pace with increases in the cost of living.
A second traditional factor which favors the City is the
qualitative
characteristic of the City's work environment.
Stability and security within
the Fire Department are very
strong.
The likelihood of a fire-related death is extremely low.
Overall conditions of
employment are relatively high.
No other traditional factors are applicable to this case.
In conclusion, based upon an application of the statutory
factors
to the evidence, the Neutral Chairman determines that
the
City's proposal should be implemented.
AWARD
Effective and retroactive to January 1, 1985, all wages in
the
Current Agreement shall be increased across-the-board 3.5%
for
the period of January 1, 1985 through December 31, 1985.
Effective January 1, 1986,
1985-86 wages shall be increased
across-the-board
4.0% for the period of January 1, 1986 through
December 31, 1986; that is,
the 1986 increase shall be a 4%
increase
over 1985-86 wages, not over 1984-85 wages.
VII. ISSUE NO. 2: HOURS OF WORK.
City firefighters presently work a 24-hour shift. A "Kelly
day"
is a 24-hour shift for which a firefighter is paid but is
not
required to work. Kelly days are a means to adjust the
average
number of scheduled hours worked. Article IX of the
Current Agreement provides for
six Kelly days.
The Union proposes an additional two Kelly days for 1985,
and
an additional four more Kelly days for 1986.
The Employer proposes two additional Kelly days for 1985,
and
one additional Kelly days for 1986. The City also proposes
that
the Fire Chief should have the right to reschedule two Kelly
days
at his option. The City further proposes that only one fire
suppression
firefighter would be able to take a Kelly day on any
particular
day. The City finally proposes that it should have
the
right to change to a 40-hour, 8-hour-a-day work schedule with
advance
notice to the Union.
Union Contentions. The Kelly day issue
is tied into wages.
Firefighters now work 53.4
hours per week on an average, using a
modified
Detroit schedule. The average number of weekly hours
among
bargaining units in the Union's first comparable group is
50.4,
and the average among bargaining units in the second group
is
49. To reach average hours compared to the first group, City
employees
would have to receive six additional Kelly days per
year,
because a Kelly day is equivalent to approximately 1/2
hour
fewer per week on the average. The Union's proposal is
reasonable,
particularly since the second group has nine more
Kelly
days per year than City employees.
There is no justification whatsoever for the demand by the
City to be allowed to move to
a 40-hour work week at its own
hole
in the entire fabric of the parties' bargaining
relationship.
The City's claim that re-scheduling rights are necessary
because
of the Supreme Court's Garcia decision is unsupported by
the
evidence. It was never explained how the Garcia decision
would
make such a right necessary. More importantly, Chief
Crawley testified that
unexpected sick leave or disability was
causing
problems, not the Kelly days. Firefighters presently
schedule
Kelly days at the beginning of each two-month period, so
there
is already sufficient scheduling leeway.
Furthermore, re-scheduling has already been covered in two
prior
determinations, including that of arbitrator Krebs. The
City offered no evidence why
arbitrator Krebs' determination,
which
allows more than one firefighter to be off on a Kelly day
at a
time, should now be changed. It is particularly
inappropriate
for this Arbitration Panel to overturn the recent
negotiated
settlement and arbitration award. At sometime, there
has
to be an end to this issue.
The City's problem is related to its failure to have hired
sufficient
employees so that minimum manning can be met in the
event
of foreseeable events such as illness or disability. The
City now has adequate
flexibility in scheduling under the
Agreement, if the Chief would
only hire the personnel to meet the
required
manning level.
City Contentions. The weighted average
hours per week of
comparable
cities within the City's exhibits was 52.5. The
City's average hours per week,
taking into account the City's
proposal
to increase the number of Kelly days, was 52.46 in 1985
and
52 in 1986. The City's proposal is generous. The Current
Agreement provides for six
Kelly days per year. By the second
year
of the new agreement, employees will enjoy a total of nine
Kelly
days. The City's proposal represents a 50%
increase during
the
course of this agreement in the number of Kelly days. The
Union's proposal of a 100%
increase is unreasonable.
The City's proposal that the Fire Chief have the right to
re-schedule
two of the Kelly days is also reasonable. Under the
Current Agreement, each
employee has the unrestricted right to
schedule a
Kelly day. Since the start of these negotiations,
state
and local employees have been brought into the coverage of
the
Fair Labor Standards Act. See Garcia v. San Antonio
Metropolitan
Transit Authority, 26 WH Cases 65 (1985). The
number
of hours a firefighter may work in a pay period prior to
the
time when overtime is required is more restricted under the
Act than under Washington
statutes. It has become necessary for
the
Chief to have some control over the scheduling of Kelly days
in
order to minimize the amount of overtime.
The City has also proposed that it have the right to
establish
an 8-hour/40-hours-a-week schedule with prior notice to
the
Union. The Union argues on one hand that it works an
excessive
number of hours, while on the other hand states that
under
no circumstances would it accept a 40-hour work week. The
day-on,
day-off, 24-hour schedule is common in the firefighting
profession
and has traditionally resulted in a week for which
employees
are scheduled in excess of 50 hours. In fact, the Act
provides
that a firefighter may work an average of 53 hours a
week
before being entitled to overtime. The City's hours of work
proposal
would reduce these employees average scheduled hours of
work
to 52 hours a week for the second year of the Agreement.
Scheduled hours of work per
week does not take into account the
shifts
off for vacation and/or sick leave.
Determination and Award. The Neutral
Chairman determines
that
the City's proposal should be implemented, with the
exception
that the City shall not have the right to change to a
40-hour,
8-hour-a-day work schedule. The following is the
reasoning
of the Neutral Chairman.
First of all, the Neutral Chairman's Determination
necessarily
must be based upon the parties' evidence regarding
comparability.
Again, the City's evidence constitutes a much
more
valid basis for that Determination than does the Union's
evidence.
Under the City's evidence, it is clear that the City's
proposal
will allow City employees to keep pace with employees
employed
by comparable jurisdictions.
In the second place, the City's argument regarding the
effect
of the Garcia case is well-taken. Since the start of
negotiations,
City employees have been brought under the coverage
of
the Fair Labor Standards Act. The effect of that Act is that
it
will be necessary for the Chief to have greater control over
the
scheduling of Kelly days in order to minimize the amount of
paid
overtime.
Next, the City's proposal that only one fire suppression
firefighter
should be allowed to take a Kelly day at the same
time
is patently reasonable. As the number of Kelly days
increase,
so does the City's difficulty in scheduling available
manpower
increase.
Finally, the Neutral Chairman cannot accept the City's
proposal
that it have the right to implement a 40-hour, 8-hour-
a-day
work schedule with advance notice to the Union. Such a
modification
would constitute a total and drastic revision in the
traditional
work hours of firefighters. Such a change cannot be
allowed
lightly.
Quite frankly, the Neutral Chairman would only consider
such a
change under certain conditions. First, the proposal
would
have to be for a definite, scheduled implementation, rather
than
for an open-ended option. Second, the City would have to
present
much more detailed evidence supporting the need for the
change.
Third, the City would have to demonstrate that the issue
was a
fully considered and completely bargained primary subject
of
dispute, with all options considered.
In the case at hand, the City has no present intention of
moving
to a 40-hour week within the foreseeable future; the City
has
presented no detailed evidence supporting the need for the
option;
and the Neutral Chairman is convinced from the evidence
and
the City's presentation at the arbitration hearing that the
subject
has not been fully and seriously considered during
negotiations
as a primary objective and proposal of the City.
AWARD
Effective and retroactive to January 1, 1985, each employee
shall
have two additional Kelly days, for a total of eight Kelly
days.
Effective January 1, 1986, each employee shall have one
additional
Kelly day, for a total of nine Kelly days. The Fire
Chief shall have the
unilateral discretionary right to re-
schedule
two Kelly days per year as he so desires. Only one fire
suppression
firefighter shall be entitled to take a Kelly day on
any
particular day.
VIII. ISSUE NO. 3: MEDICAL BENEFITS.
Article XXVII of the Current Agreement provides:
Medical coverage for all employees covered
under this Agreement shall
continue in force
and continue to be paid by the
Employer. The
employee's spouse and minor
dependants shall
continue to be furnished the
opportunity for
medical coverage under GHC or
WPS. Effective
January 1, the cost of coverage shall be born
100 percent by the City based under the rate
structure of the WPS plan in
effect on 12/31
of the previous year. Any
premiums in excess
of the above rates shall be
borne by the
employee.
The Union's proposes no change in the current language. It
proposes
for LEOFF II employees the addition of a City payment
for
the supplemental disability plan payment and payment of the
$50 annual deductible under
the medical program...
The City proposes for 1985 a continuation of payment of 100%
of
the medical premium under either the WPS or Group Health Plan.
The City's offer is
retroactive to the first day of the month in
which
the new agreement is ratified. For 1986, the City proposes
to
pay the higher of $242 a month or 90% of the medical premium
for
either medical plan.
Union Contentions. The Union position
is supported by the
factor
of comparability. In the first group of employers used by
the
Union, nine of the seventeen jurisdictions pay 100% of the
medical
premium for dependants, while the other eight have some
sort
of cap. In the second group, the percentage difference is
about
the same, with seven of the jurisdictions paying for 100%
of
the medical premium and five having some kind of cap.
Further, under the Current Agreement, the City has a yearly
update
to 100% of the cost of the lesser expensive of the two
plans
on December 31 of each year. The Group Health Plan
differential
cost and any increases to either plan's cost that
occur
during the year are the responsibility of the employee.
Thus, firefighters already
have a form of cap applied to them,
because
they do participate in the payment for their own
insurance.
The present wording also leaves the parties with a
convenient
co-payment system and contractual language that does
not
have to be opened each year.
The City offered no justification for its desire to have the
proposal
it sought, particularly the lack of retroactivity to
January 1, other than it had
managed to force the same wording on
other
bargaining units that do not have binding arbitration. No
other
evidence of comparable programs was offered.
Regarding LEOFF II employees, those employees do the same
work
as employees hired before September 30, 1977, but because of
financial
troubles in the State retirement and disability system
(LEOFF I), they do not get the
same disability benefits. LEOFF
II employees now have to pay
for their own supplemental
disability
plan. The Union's proposal that the City pay the $12
per
month cost would be a small cost for the City that provides a
large
protection for the employee.
The City should also pay the $50 annual insurance deductible
applicable
to LEOFF II employees. This would bring them
commensurate
with what the City pays for LEOFF I employees.
City Contentions. The City's proposal
is reasonable. The
$242 limit in the second year
is equal to the maximum rate under
WPS
for 1985 plus 10%. Thus, the City's proposal represents a
benefit
increase to each employee.
The Union's proposal that the City pay for the deductible
associated
with the WPS plan is unsupported by the evidence.
Those employees are able to
totally avoid any deductibles by
enrolling
in GHC.
Finally, the Union's proposal that the City pick up the
disability
premium payments for LEOFF II employees is not
reasonable.
There is no statutory requirement that the City do
this.
These are both economic issues which must be evaluated in
light
of the total economic package proposed by the City.
Determination and Award. The Neutral
Chairman determines
that
the existing language shall remain unchanged for the life of
the
new Agreement, retroactive to January 1, 1985. The following
is
the reasoning of the Neutral Chairman.
Again, the starting point is the statutory criteria. The
most
significant statutory factor is that of comparability. The
sole
evidence in this case concerning comparability was presented
by
the Union. No comparability evidence whatsoever was presented
by
the City. Thus, even though the Union's evidence is somewhat
suspect
for the reasons already stated, it is the only evidence
before
the Neutral Chairman.
Of the seventeen comparable jurisdictions in the Union's
first
group, only eight have some form of dollar or percentage
cap.
Of the twelve comparable jurisdictions in the Union's
second
group, only five have some dollar or percentage cap.
Thus, the weight of the
evidence supports the Union. While the
Neutral Chairman has
recommended and awarded caps in other cases,
he
has done so only where the weight of the evidence supports the
position
of the employers, or where inability to pay is an issue.
On the other side of the coin, the Union's own comparability
evidence
supports the City's position with regard to LEOFF II
employees.
Among the seventeen comparable units in the first
group,
only five provide for employer contributions, and only
three
of those pay 100%. Of the twelve comparable units in the
second
group, only two provide for employer contributions, and
only
one of those pays 100%.
The City presented no evidence, and advanced no compelling
argument,
in support of its position that the medical premium
increase
should not be retroactive. The Neutral Chairman notes
that
the statutory process for dispute resolution is particularly
lengthy.
An award against retroactivity would, in effect,
penalize a
party for utilizing that process. The Neutral
Chairman does not deem that
such was the intent of the
legislature.
To the contrary, in the absence of compelling
reasons
to the contrary, retroactivity should be the normal award
under
the statutory process.
AWARD
The language of Article XXVII of the Current Agreement shall
continue
unchanged in the new Agreement.
The
Neutral Chairman's Findings, Determination
and Award are dated this 28th day of August, 1985.
Thomas
F. Levak,
Neutral
Chairman and Impartial Arbitrator