INTEREST ARBITRATIONS

Decision Information

Decision Content

International Association of Fire Fighters, Local 1052

And

City of Richland

Interest Arbitration

Arbitrator:      George H. Revell

Date Issued:   03/04/1988

 

 

Arbitrator:         Revell; George H.

Case #:              06260-I-86-00142

Employer:          City of Richland

Union:                IAFF; Local 1052

Date Issued:     03/04/1988

 

 

IN INTEREST ARBITRATION

BEFORE THE HONORABLE GEORGE H. REVELLE,

NEUTRAL ARBITER AND PANEL CHAIRMAN;

DANNY T. DOWNS, PARTISAN ARBITER;

AND ALBERT G. ROSS, PARTISAN ARBITER

 

 

In the Matter Between                                  )

                                                                        )           PERC #6260-I-86-142

THE CITY OF RICHLAND,                        )

                                                                        )

Employer,                                                       )           [PERC #6530-M-86-2632]

                                                                        )

and                                                                  )           87-0945

                                                                        )

INTERNATIONAL ASSOCIATION OF    )           Award and Opinion

FIREFIGHTERS LOCAL 1052,                  )

Union.                                                             )

                                                                        )

____________________________________)

 

           

DANNY T. DOWNS             GEORGE H. REVELLE                   ALBERT G. ROSS

Route 1, Box 1411                 2205 pacific Bldg.                               1401 Fifth Ave. N.

Benton City, WA 99320         Seattle, WA 98104                             #402

                                                (206) 622-9950                                   Seattle, WA 98109

 

 

CRITCHLOW & WILLIAMS                                             PERKINS COIE

David Williams                                                                       J. David Andrews

1177 Jadwin Bldg.                                                                  Nancy Williams

P. O. Box 1487                                                                       1900 Washington Bldg.         

Richland, WA 98352                                                              Seattle, WA 98101

(509) 946-6181                                                                       (206) 682-8770

For the Union                                                             For the city

 

 

 

TABLE OF CONTENTS

                                                                                                                                                            Page

                       

 

Award                                                                                                                                                 iii-iv

Opinion of the Arbiters                                                                                                                      1-115

I.          Procedural Matters                                                                                                               1-9

                                    Table of Issues                                                                                               9B

 

II.        Standards Applicable                                                                                                 10

           

                        A. Statutes and Regulations Involved                                                                      10

                        B. Additional Basis for Determination                                                                     10

                        C. Tentative Agreements                                                                                          16

                        D. Agreed Before Hearing                                                                                        19

 

III.       Findings of Fact, General                                                                                                      21

 

                        A.        Constitutional and Statutory

                                    Authority of the Employer                                                                             21

 

                        B.        Stipulations of the Parties                                                                             22

           

                                                Term of Agreement                                                                           22

                                                New - Medical Certification                                                  22

 

                        C.        Comparative Data                                                                                         22

 

                        D.        Average Consumer Prices - Cost of Living                                                  24

 

                        E.         Changes in Any of the Foregoing

                                    Circumstances During Pendency

                                    of proceedings                                                                                                25

 

                        F.         Other Factors Normally or

                                    Traditionally Taken into

                                    Consideration in the

                                    Determination of Wages, Terms,

                                    and Conditions of Employment                                                                     25

           

IV.       Determination of Arbiters                                                                                                     26

           

                        Article 4 -        Union Business                                                                                  26

                        Article 6 -        Occupational Disability Allowance                                                   30                       

                        Article 10 -      Prevailing Rights                                                                               34

                        Article 14 -      Personnel Reduction                                                                          40

                        Article 15 -      Working Out of Classification -

                                                            Effect on Pay                                                                          44

                        Article 16 -      Vacancies and Promotions                                                                48

                        Article 19 -      Hours                                                                                                  54

                        Article 21 -      Sick Leave                                                                                         63

                        Article 22 -      Paid Leave                                                                                         69

                        Article 23 -      Leave Conversion                                                                              75

                        Article 24 -      Overtime Pay                                                                                     77

                        Article 27 -      Basis for Negotiations                                                                       82

                        Article 28 -      Terms of Agreement                                                                          84

                        Appendix A -  Salary Schedule                                                                                 85

                        Appendix B -  Premium Pay Schedule                                                                      93

                        New - Call In for Absences                                                                                       97

                        New - Medical Certification/Recertification

                                                and Training                                                                                       98

                        New - Longevity                                                                                                         104

                        New - Terms of Successorship                                                                                  107

                        New - Management Grievance Procedure                                                               110

                        New - Entire Agreement                                                                                            111

                        New - Probationary Period                                                                                        113

                        New - Standards of Safety                                                                                         115

 

                        Reservation for Correction of Errors in

                                    Transcription                                                                                                  iv

 

 

IN INTEREST ARBITRATION

BEFORE THE HONORABLE GEORGE H. REVELLE,

NEUTRAL ARBITER AND PANEL CHAIRMAN;

DANNY T. DOWNS, PARTISAN ARBITER;

AND ALBERT G. ROSS, PARTISAN ARBITER

 

In the Matter Between                                              )

                                                                                    )           PERC #6260-1-86-142

THE CITY OF RICHLAND,                                    )           (withdrawn)

                                                                                    )

            Employer,                                                       )           [PERC #6530-M-86-2632]

                                                                                    )

                        and                                                      )           87-0945

                                                                                    )

INTERNATIONAL ASSOCIATION OF                )           Award

FIREFIGHTERS LOCAL 1052,                              )

                                                                                    )

             Union.                                                            )

_________________________________________  )

 

            Awards are hereby made as follows:

 

                                                            INDEX

 

                                                                                                            Pages

Subject                                   

                                                           

Article 4          Union Business                                                          26-29

Article 6          Occupational Disability Allowance                           30-33

Article 10        Prevailing Rights                                                       34-39

Article 14        Personnel Reduction                                                  40-43

Article 15        Working Out of Classification -

                                    Effect on Pay                                                  44-47

Article 16        Vacancies and Promotions                                        48-51

Article 19        Hours                                                                          54-62

Article 21        Sick Leave                                                                 63-68

Article 22        Paid Leave                                                                 69-74

Article 23        Leave Conversion                                                      75-76

Article 24        Overtime Pay                                                             77-80

Article 27        Basis for Negotiations                                               82-83

Article 28        Term of Agreement                                                   84

Appendix A     Salary Schedule                                                         85-92

Appendix B     Premium Pay Schedule                                              93-96

New Article ** Call In for Absences                                                97

New Article ** Medical Certification/

                        Recertification and Training                         98-103

New Article ** Longevity                                                                  104-106

New Article ** Terms of Successorship                                           107-109

New Article ** Management Grievance procedure                        110

New Article ** Entire Agreement                                                     111-112

New Article ** Probationary period                                     113-114

New Article ** Standards of Safety                                                  115

 

            Jurisdiction is reserved for thirty (30) days from this

date to make corrections of errors in transcription.

             

            Done at Seattle, Washington, on March 30, 1988.

 

_______________      __________________                        ______________

DANNY T. DOWNS             GEORGE H. REVELLE                   ALBERT G. ROSS

ARBITER                  ARBITER                              ARBITER

 

 

IN INTEREST ARBITRATION

BEFORE THE HONORABLE GEORGE H. REVELLE,

NEUTRAL ARBITER AND PANEL CHAIRMAN;

DANNY T. DOWNS, PARTISAN ARBITER;

AND ALBERT G. ROSS, PARTISAN ARBITER

 

In the Matter Between                                              )

                                                                                    )           PERC #6260-1-86-142

THE CITY OF RICHLAND,                                    )           (withdrawn)

                                                                                    )

            Employer,                                                       )           [PERC #6530-M-86-2632]

                                                                                    )

            and                                                                  )           87-0945

                                                                                    )

INTERNATIONAL ASSOCIATION OF                )           Opinion of Arbiters

            FIREFIGHTERS LOCAL 1052,                  )

                                                                                    )

            Union.                                                             )

_________________________________________  )

 

I. PROCEDURAL MATTERS

 

            On September 30, October 1 and October 2, 1987 an interest

arbitration hearing was held at the Richland, Washington, City

Library before an arbitration panel consisting of neutral

arbiter George H. Revelle, Chairman; Danny T. Downs, partisan

arbiter representing International Association of Firefighters,

Local 1052 (Union); and Albert G. Ross, partisan arbiter

representing the City of Richland (City). The City was

represented by its attorneys, Perkins Coie, J. David Andrews

and Nancy Williams. The Union was represented by its attorneys

Critchlow & Williams and David E. Williams.

            The evidentiary phase was closed October 2, 1987.

            The hearing was closed upon receipt of simultaneously

mailed briefs October 24, 1987.

            Testimony was given by the following persons:

            Comparable Jurisdiction - Dan Smolen, Ron Musson, Tim Sharp

            Union Business - Tim Sharp, Chief Robert Panuccio

            Occupational Disability Allowance - Dan Smolen, Craig

Williamson, Jeannine Schaffer

            Prevailing Rights Clause - Tim Sharp, Dan Smolen, Chief

Robert Panuccio, Duane Schrag, Jeannine Schaffer

            Reduction in Force - Dan Smolen, Chief Robert Panuccio,

Jeannine Schaffer, Tim Sharp

            Working Out of Classification - Craig Williamson, Jeannine

Schaffer

            Seniority and Vacancies and Promotions - Chief Robert

Panuccio, Jeannine Schaffer, Dan Smolen, Tim Sharp

            Hours Worked - John Boardman, Jim Cummins, Dan Smolen,

Jeannine Schaffer, Duane Schrag, Jim Cummins

            Sick Leave Proposal - Jeannine Schaffer, Dan Smolen, John

Boardman, Tim Sharp

            Longevity - Dr. Oscar Spurlin

            Paid Leave - Jeannine Schaffer

            Leave Conversion - Jeannine Schaffer, Dan Smolen, Tim Sharp

            Overtime - Dan Smolen, Jeannine Schaffer, Duane Schrag

            Basis for Negotiations - Dan Smolen

            Entire Agreement - Dan Smolen

            Probationary Period - Jim Cummins, Duane Schrag, Dan

Smolen, Jim Cummins

            Longevity - Jeannine Schaffer, Don Smolen

            Medical Certification - Kurt Hubele, Jim Cummins, Duane

Schrag, Chief Robert Panuccio, Jim Cummins

            Wages - Jim Cummins, Dan Smolen, Jeannine Schaffer, Chief

Robert Panuccio, Ron Musson, Neil Shulman

            Exhibits were admitted as follows:

            Joint Exhibit No. 1 - 1985 Collective Bargaining Agreement

            Joint Exhibit No. 2 - PERC Certification Letter

            Union Exhibit No. 3 - Union Notebook

            City Exhibit No. 4 - RCW 41.56.460 and Amendments

            City Exhibit No. 5 - Population Data on City's Comparables

            City Exhibit No. 6 - Labor Area Summaries Definitions

            City Exhibit No. 7 - Washington Map Showing Comparables

            City Exhibit No. 8 - Unemployment Data from City's

Comparables

            City Exhibit No. 9 - Fire and Ambulance Dispatch Data from

City's Comparables

            City Exhibit No. 10 - Size, Population and Budget Data for

City's Comparables

            City Exhibit No. 11 - Lehleitner Arbitration Decision

            City Exhibit No. 12 - Summary of Historical Expenditure

Reductions

            City Exhibit No. 13 - Five-Year Revenue Summary

            City Exhibit No. 14 - General Fund Five-Year Expenditure

Summary

            City Exhibit No. 15 - Revised General Fund Five-Year

Revenue and Expenditure Summaries

            City Exhibit No. 16 - Summary of Ballot Issues

            City Exhibit No. 17 - Residential Construction

            City Exhibit No. 18 - Permits for New Construction

            City Exhibit No. 19 - Recent News Articles on Economy

            City Exhibit No. 20 - Sales Tax Per Capita for Tri-Cities

            City Exhibit No. 21 - Sales Tax Per Capita for Tri-Cities,

Including Equalization

            City Exhibit No. 22 - House Bill No. 498

            City Exhibit No. 23 - City of Richland Fire Stations

Locations

            City Exhibit No. 24 - Statutory Excerpts on Disability

Leave and Light Duty

            City Exhibit No. 25 - City's Comparables on Light Duty

            City Exhibit No. 26 - City's Comparables on Occupational

Disability Benefits

            City Exhibit No. 27 - City's Disability Experience

            City Exhibit No. 28 - RMC 2.28.855,Occupational Disability

Allowance

            City Exhibit No. 29 - Abernathy Arbitration Award, City of

Everett

            City Exhibit No. 30 - City's Comparables on Prevailing

Rights

            City Exhibit No. 31 - In-City Comparison on Prevailing

Rights

            City Exhibit No. 32 - RMC 2.28.720 (Reduction in Force)

            City Exhibit No. 33 - City's Comparables on Personnel

Reduction

            City Exhibit No. 34 - In-City Comparison on Personnel

Reduction

            City Exhibit No. 35 - City Personnel Summary

            City Exhibit No. 36 - Upgrade Cost Impacts

            City Exhibit No. 37 - City's Comparables on Working Out of

Classification

            City Exhibit No. 38 - Grievances on Filling of Vacancies

            City Exhibit No. 39 - Correspondence Regarding Filling of

Vacancies

            City Exhibit No. 40 - RMC 2.28.645 and .655 (Vacancies and

promotions)

            City Exhibit No. 41 - City's Comparables on Vacancies and

promotions

            City Exhibit No. 42 - City's Comparables on vacancy and

Promotion Procedures

            City Exhibit No. 43 - City's Comparables Regarding Rule of

Three

            City Exhibit No. 44 - 1984 Letter of Understanding on Fire

Fighter Vacancy

            City Exhibit No. 45 - 1985 Letter of Understanding

Regarding Vacancies

            Union Exhibit No. 46 - 1972 Collective Bargaining Agreement

            Union Exhibit No. 47 - Peck Arbitration Award

            Union Exhibit No. 48 - September 1987 Panuccio Letter

Regarding Jones Vacancy

            Union Exhibit No. 49 - Standby Calls for Cummins Shift,

September 1987

            City Exhibit No. 50 - City's Comparables on Weekly Hours of

Work

            City Exhibit No. 51 - City's Comparables on Leisure Time

            City Exhibit No. 52 - June 1987 Correspondence with PERC

Regarding Certification of Issues

            City Exhibit No. 53 - Work Week Reduction History

            City Exhibit No. 54 - Dot Chart

            City Exhibit No. 55 - Average Shift Fire Fighter Work Year

            City Exhibit No. 56 - Federal and State Regulations

Requiring Additional Structured Hours

            City Exhibit No. 57 - July 1982 Resolution Regarding

Leisure Hours

            City Exhibit No. 58 - June 1983 Resolution Regarding

Leisure Hours

            City Exhibit No. 59 - Correspondence Regarding Volunteers

On Leisure Hours

            City Exhibit No. 60 - In-City Comparison of Sick Leave

            City Exhibit No. 61 - City's Comparables on LEOFF I Sick

Leave Accrual

            City Exhibit No. 62 - City's Comparables on LEOFF II Sick

Leave Accrual

            City Exhibit No. 63 - In-City Comparison of Vacation Accrual

            City Exhibit No. 64 - In-City Comparison of Personal

Business Time Accrual

            City Exhibit No. 65 - In-City Comparison of Family Leave

Accrual

            City Exhibit No. 66 - City's Comparables on Leave Conversion

            City Exhibit No. 67 - Snow Arbitration Award (Leisure Time)

            City Exhibit No. 68 - City's Comparables on Overtime Pay

Rate

            City Exhibit No. 69 - Overtime Rate Comparison

            City Exhibit No. 70 - Overtime Paid Bases Cost Based on

Actual Hourly Rate

            City Exhibit No. 71 - FLSA Provisions

            City Exhibit No. 72 - ULP Charge

            City Exhibit No. 73 - City's Comparables on Entire

Agreement Clause

            City Exhibit No. 74 - In-City Comparison on Entire

Agreement Clause

            City Exhibit No. 75 - RMC 2.28.135 and 2.28.665

            City Exhibit No. 76 - Observable Hours, Six Months

            City Exhibit No. 77 - City's Comparables on Probationary

Period

            City Exhibit No. 78 - City's Comparables on Terms of

Successorship

            City Exhibit No. 79 - In-City Comparison on Terms of

Successorship

            City Exhibit No. 80 - Union Longevity Proposal, Monthly Cost

            City Exhibit No. 81 - In-City Comparison on Longevity Pay

            City Exhibit No. 82 - City's Comparables on Longevity and

Educational Incentive Pay

            City Exhibit No. 83 - Fire Calls vs. Ambulance Assists

            City Exhibit No. 84 - Ambulance Calls vs. Fire Calls

            City Exhibit No. 85 - Concerned Citizen Letter Regarding

Paramedics

            City Exhibit No. 86 - Nurses Petition Regarding Paramedics

            City Exhibit No. 87 - Tri-Cities Comparison of Medical

Certification Benefits

            City Exhibit No. 88 - Correspondence Regarding Support for

Paramedic Program

            Union Exhibit No. 89 - Union's Comparables on Probationary

Period

            City Exhibit No. 90 - City's Proposed Appendix A Effective

1-1-87

            City Exhibit No. 91 - City's Proposed Appendix A Effective I

1-1-88

            City Exhibit No. 92 - City's Comparables on Salary Data

            City Exhibit No. 93 - City's Comparables on Salary Data

(Outside Seattle PMSA)

            City Exhibit No. 94 - City's Comparables on Salary Data

(Eastern Washington)

            City Exhibit No. 95 - City's Comparables on EMT and

Paramedic Premium Pays

            City Exhibit No. 96 - City's Comparables on IV Tech and

Airway Tech Premium Pays

            City Exhibit No. 97 - CPI Data

            Union Exhibit No. 98 - Historical Salary Comparisons

between Richland and Pasco

            Union Exhibit No. 99 - Pierce County Fire District 9

Collective Bargaining Agreement

            City Exhibit No. 100 - In-City Comparison on Salary

Increases

            City Exhibit No. 101 - Cost of Union Wage Proposal

            City Exhibit No. 102 - Cost of City Wage Proposal

            City Exhibit No. 103 - City Salary Proposal with Current

Educational Incentive Pay

            City Exhibit No. 104 - Substitute House Bill No. 1388

 

TABLE OF ISSUES

 

                                                                                    1985-88

                                                                                    Issues             1985

1985                                                                            Agreed                        Tentative

Article                                     Union  City     PERC  Before             Agreed            Page

No.                                          Issues Issues Issues Hearing           Issues Reference       Remarks

1          Recognition                                                    x                                  19

2          Nondiscrimination                                          x                                  19

3          Union Security                                                            x                                  19

4          Union Business                      x          x          x                                              26

5          Payroll Deduction                                          x                                  19

6          Occupational

            Disability                    x          x          x                                  x          30

7          Holidays                                                         x                                  19

8          Union Bulletin

            Boards                                                                        x                                  19

9          Employer Rights &

            Responsibilities                                              x                                  19

10        Prevailing Right                     x          x          x                                  x          34

11        Performance of Duty                                     x                                  19

12        Uniforms                                                         x                                  19

13        Shift Change                                                   x                                  19

14        Personnel Reduction  x          x          x                                  x          19 & 40

15        Working Out of

            Classification              x          x          x                                              44

16        Vacancies &

            Promotions                 x          x          x                                              48

17        Grievance Procedure             x          x          x                      x          19 & 52

18        Wages (except

            App A or App B                                  x          x          x                      x          19 & 53

19        Hours                          x          x          x                                              54

20        Fire Incentive

            Program                                                          x                                  19

21        Sick Leave                 x          x          x                                              63

22        Paid leaves                 x          x          x                                  x          69

23        Leave Conversion      x          x          x                                  x          75

24        Overtime Pay             x          x          x                                              77

25        Insurance Benefits     (1)        x          x          x(1)                              19 & 81                       (1) Union

                                                                                                                                                record or

                                                                                                                                                brief does not

                                                                                                                                                discuss

26        Productivity                                                    x                                  19

27        Basis for

            Negotiations               x          x          x                                  x         82

28        Terms of Agreement              x                      (2)                                84                    (2) PERC

                                                                                                                                                states agreed

                                                                                                                                                1986 through

                                                                                                                                                1988 (JE #2)

29        Savings Clause                                                           x                                  20

30        Signature Page                                                           x                                  20 & iv

A         Appendix A-Salary

            Schedule                     x          x          x                                              85

B         Appendix B-Premium

                         Pay Schedule x          x          x                                              93

New     Call in for Absences   (3)        x          x          x                                  20 & 97                       (3) Union

                                                                                                                                                record or

                                                                                                                                                brief does not

                                                                                                                                                discuss

New     Medical Certification/

            Recertification &

            Training                      x          x          x                                              98

New     longevity                     x          x          x                                              104

New     Terms of Succesorship          x          x          x                                              107

New     Management Grievance(4)   x                                                          20-110             (4) Union

            Procedure                                                                                                                   record or

                                                                                                                                                brief does not

                                                                                                                                                discuss

New     Entire Agreement      x          x          x                                              111

New     Probationary Period   x          x          x                                              113

New     Standards of Safety   (5)        (5)        (5)        (5)                                115                  (5) Removed

                                                                                                                                                PERC pending

                                                                                                                                                decision of

                                                                                                                                                grievance

 

II. STANDARDS APPLICABLE

 

A.        STATUTES AND REGULATIONS INVOLVED.

            1.         RCW 41.56 in its entirety but especially:

                        a.         41.56.010 Declaration of purpose. The

                        intent and purpose of this chapter is to

                        promote the continued improvement of the

                        relationship between public employers and

                        their employees by providing a uniform basis

                        for implementing the right of public employees

                        to join labor organizations of their own

                        choosing and to be represented by such

                        organizations in matters concerning their

                        employment relations with public employers.

 

                        b.         41.56.030 Definitions. As used in this

                        chapter:***

                                    (4) "Collective bargaining" means the

                        performance of the mutual obligations of the

                        public employer and the exclusive bargaining

                        representative to meet at reasonable times, to

                        confer and negotiate in good faith, and to

                        execute a written agreement with respect to

                        grievance procedures and collective

                        negotiations on personnel matters, including

                        wages, hours and working conditions, which may

                        be peculiar to an appropriate bargaining unit

                        of such public employer, except that by such

                        obligation neither party shall be compelled to

                        agree to a proposal or be required to make a

                        concession unless otherwise provided in this

                        chapter. ***

                                    (6) "Uniformed personnel" means (a) law

                        enforcement officers as defined in

                        RCW 41.26.030 as now or hereafter amended, of

                        cities with a population of fifteen thousand

                        or more or law enforcement officers employed

                        by the governing body of any county of the

                        second class or larger, or (b) fire fighters

                        as that term is defined in RCW 41.26.030, as

                        now or hereafter amended.

 

                        c. 41.56.430 Uniformed personnel--

                        Legislative declaration. The intent and

                        purpose of *this 1973 amendatory act is to

                        recognize that there exists a public policy in

                        the state of Washington against strikes by

                        uniformed personnel as a means of settling

                        their labor disputes; that the uninterrupted

                        and dedicated service of these classes of

                        employees is vital to the welfare and public

                        safety of the state of Washington; that to

                        promote such dedicated and uninterrupted

                        public service there should exist an effective

                        and adequate alternative means of settling

                        disputes.

 

                        d. 41.56.450 Uniformed personnel--Interest

                        arbitration panel. ***The arbitration panel

                        50 constituted shall promptly establish a

                        date, time and place for a hearing and shall

                        provide reasonable notice thereof to the

                        parties to the dispute. A hearing, which

                        shall be informal, shall be held, and each

                        party shall have the opportunity to present

                        evidence and make argument. No member of the

                        arbitration panel may present the case for a

                        party to the proceedings. The rules of

                        evidence prevailing in judicial proceedings

                        may be considered, but are not binding, and

                        any oral testimony or documentary evidence or

                        other data deemed relevant by the chairman of

                        the arbitration panel may be received in

                        evidence. A recording of the proceedings

                        shall be taken. The arbitration panel has the

                        power to administer oaths, require the

                        attendance of witnesses, and require the

                        production of such books, papers, contracts

                        agreements, and documents as may be deemed by

                        the panel to be material to a just

                        determination of the issues in dispute. If

                        any person refuses to obey a subpoena issued

                        by the arbitration panel, or refuses to be

                        sworn or to make an affirmation to testify, or

                        any witness, party, or attorney for party is

                        guilty of any contempt while in attendance at

                        any hearing held hereunder, the arbitration

                        panel may invoke the jurisdiction of the

                        superior court in the county where the labor

                        dispute exists, and the court has jurisdiction

                        to issue an appropriate order. Any failure to

                        obey the order may be punished by the court as

                        a contempt thereof. The hearing conducted by

                        the arbitration panel shall be concluded

                        within twenty-five days following the

                        selection or designation of the neutral

                        chairman of the arbitration panel, unless the

                        parties agree to a longer period.

                        The neutral chairman shall consult with the

                        other members of the arbitration panel, and,

                        within thirty days following the conclusion of

                        the hearing, the neutral chairman shall make

                        written findings of fact and a written

                        determination of the issues in dispute, based

                        on the evidence presented. A copy thereof

                        shall be served on the commission, on each of

                        the other members of the arbitration panel,

                        and on each of the parties to the dispute.

                        That determination shall be final and binding

                        upon both parties, subject to review by the

                        superior court upon the application of either

                        party solely upon the question of whether the

                        decision of the panel was arbitrary or

                        capricious.

 

                        e. 41.56.452 Interest arbitration panel a

                        state agency. An interest arbitration panel

                        created pursuant to RCW 41.56.450, in the

                        performance of its duties under chapter 41.56

                        RCW, exercises a state function and is, for

                        the purposes of this chapter, a state agency.

                        Chapter 34.04 RCW does not apply to

                        proceedings before an interest arbitration

                        panel under this chapter.

 

                        f. 41.56.460 Uniformed personnel--Interest

                        arbitration panel--Basis for determination.

                        In making its determination, the panel shall

                        be mindful of the legislative purpose

                        enumerated in RCW 41.56.430 and as additional

                        standards or guidelines to aid it in reaching

                        a decision, it shall take into consideration

                        the following factors:

                         (a) The constitutional and statutory

                        authority of the employer;

                         (b) Stipulations of the parties;

                         (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

                        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

                        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 consideration in the

                        determination of wages, hours, and conditions

                        of employment (as amended 1987) .

 

                        g. 41.56.495 Advanced life support

                        techniques--Application of RCW 41.56.430

                        through 41.56.490. In addition to the

                        classes of employees listed in RCW

                        41.56.030(6), the provisions of RCW 41.56.430

                        through 41.56.490 shall also be applicable to

                        the several classes of advanced life support

                        technicians that are defined under RCW

                        18.71.200, who are employed by public

                        employers, other than public hospital

                        districts.

 

                        h. 18.71.200 Physician's trained mobile

                        intravenous therapy  technicians, physician's

                        trained mobile airway management technicians,

                        physicians trained mobile intensive care

                        paramedics--Definitions. (1) As used in this

                        chapter, a "physician's trained mobile

                        intravenous therapy technician" means a person

                        who:

                                    (a) Has successfully completed an

                        emergency medical technician course as

                        described in chapter 18.73 RCW;

                                    (b) Is trained under the supervision of

                        an approved medical program director to

                        administer intravenous solutions under written

                        or oral authorization of an approved licensed

                        physician; and

                                    (c) Has been examined and certified as a

                        physician's trained mobile intravenous therapy

                        technician by the University of Washington's

                        school of medicine or the department of social

                        and health services;

                         (2) As used in this chapter, a

                        "physician's trained mobile airway management

                        technician" means a person who:

                                    (a) Has successfully completed an

                        emergency medical technician court as

                        described in chapter 18.73 RCW;

                                    (b) Is trained under the supervision of

                        an approved medical program director to

                        perform endotracheal airway management and

                        other authorized aids to ventilation under

                        written or oral authorization of an approved

                        licensed physician; and

                                    (c) Has been examined and certified as a

                        physician's trained  mobile airway management

                        technician by the University of Washington's

                        school of medicine or the department of social

                        and health services; and

                         (3) As used in this chapter, a

                        "physician's trained mobile intensive care

                        paramedic" means a person who:

                                    (a) Has successfully completed an

                        emergency medical technician course as

                        described in chapter 18.73 RCW;

                                    (b) Is trained under the supervision of

                        an approved medical program director:

                                     (i) To carry out all phases of advanced

                        cardiac life support;

                                     (ii) To administer drugs under written

                        or oral authorization of an approved licensed

                        physician; and

                                     (iii) To administer intravenous solutions

                        under written or oral authorization of an

                        approved licensed physician; and

                                     (iv) To perform endotracheal airway

                        management and other authorized aid to

                        ventilation; and

                                    (c) Has been examined and certified as a

                        physician's trained mobile intensive care

                        paramedic by the University of Washington's

                        school of medicine or by the department of

                        social and health services.

 

                        i. 41.56.460 Uniformed personnel--

                        Provisions additional--Liberal construction.

                        The provisions of this chapter are intended to

                        be additional to other remedies and shall be

                        liberally construed to accomplish their

                        purpose. Except as provided in RCW 53.18.015,

                        if any provision of this chapter shall control.

 

            2.         Washington Administrative Code Provisions (WAC) as

follows:

                        a. WAC 391-55-215 Uniformed personnel -- Conduct

            of interest arbitration proceedings. Proceedings

            shall be conducted as provided in WAC 391-55-200

            through 391-55-260. The neutral chairman shall

            interpret and apply these rules insofar as they

            relate to the powers and duties of the neutral

            chairman. Any party who proceeds with arbitration

            after knowledge that any provision or requirement

            of these rules has not been complied with and who

            fails to state its objection thereto in writing,

            shall be deemed to have waived its right to object.

 

                        b. WAC 391-55-230 Uniformed personnel--Order of

            proceedings and evidence. The order of

            presentation at the hearing shall be as agreed by

            the parties or as determined by the neutral

            chairman. The neutral chairman shall be the judge

            of the relevancy of the evidence. All evidence

            shall be taken in the presence of all parties,

            unless a party is absent in default or has waived

            its right to be present. Each documentary exhibit

            shall be filed with the neutral chairman and copies

            shall be provided to the appointed members and to

            the other parties. The exhibits shall be retained

            by the neutral chairman until an agreement has been

            signed or until any judicial review proceedings

            have been concluded, after which they may be

            disposed of as agreed by the parties or as ordered

            by the neutral chairman.

            [Statutory Authority: RCW 28E.52.080, 41.56.040,

            41.58.050, 41.59.110 and 47.64.040. 80-14-049

            (Order 80-8), 391-55-330, filed 9/30/80,

            effective 11/1/80.]

 

B. ADDITIONAL BASIS FOR DETERMINATION.

 

            1. Under RCW 41.56.030(4), which requires written

collective bargaining agreements between public employers and

their employees, an oral agreement between the parties is

unenforceable. Klauder v. Deputy Sheriffs Guild, 107 Wn.2d

338, 728 P.2d 1044 (1986).

            2. In a case where the trial court made a finding that

the, "plaintiff (union) and defendants (county) orally entered

into a tentative agreement relative to certain increases in

salaries . . . and in certain . . . medical payments to

employer of Clallam County", the Washington Supreme Court held

oral and tentative agreements are unenforceable. State ex rel.

Bain v. Clallam County, 77 Wn.2d 542, 463 P.2d 617 (1970).

 

            3.         We seek a determination which will:

                        a. Provide a solution that will be fair, equitable

and satisfactory enough to both sides to be workable;

                        b. Be what the parties, as reasonable persons,

should have agreed upon by negotiation;

                        c. Contribute to the future relationship between

the parties so that collective bargaining will be successful in

the future.

                        d. Clarify the public interest in the dispute for

the furtherance of public understanding.

 

C. TENTATIVE AGREEMENTS.

 

            1. Union Position.

                        a. The City has departed from the following

tentatively agreed articles: Article 6 - Occupational

Disability Allowance, Article 10 - Prevailing Rights,

Article 14 - Personnel Reduction, Article 22 - Paid Leaves,

Article 23 - Leave Conversion, and Article 27 - Basis of

Negotiations. (Union Brief, p. 5)

                        b. The parties bargained in 1985 and 1986 without

reaching an agreement on a new contract. The City changed

negotiators, causing the continuity of the discussions to be

"diminished to an appreciable degree when the new City

negotiator did not agree to some of the "tentative agreements"

made by his predecessor. Rather than file an unfair labor

practice against the City, the Union decided to "present its

position relative to the TA's in the instant forum in reliance

on the principle whereby one party or the other to serious

collective bargaining negotiations should not be permitted to

depart from commitments made admittedly with the objective of

achieving an entire agreement, step by step." (Union Brief,

pp. 3-4)

 

            2.         City Position.

                        a. During formation by PERC of issues to be

certified, both parties made and agreed to corrections

(Ex C-5E) resulting in PERC certification of the disputed

issues, Articles 6, 10, 14, 22, 23, and 27, without Union's

subsequent objections as required by WAC 391-55-215. (City

Brief, p. A-2)

                        b. The Union and the City also reopened other

Articles for 1987 on which there had been TA's for 1986.

Tr. 290:14-16. (City Brief, p. A-2)

                        c. The Union never, until it was before the

arbitration panel, lodged any complaint about the propriety of

these issues being certified. (Tr. 3, Ex:21-325:9; City Brief

p. A-2)

 

            3.         Decision by Arbiters.

            "Tentative agreements" are not binding on the

parties or the arbitration panel. Nor are they relevant to the

issues of the arbitration except as evidence of the position of

the parties at the earlier nonbinding time, or positions taken

in contemplation of a later complete, final, signed agreement.

PERC's certification to this panel of issues which were the

subject of tentative agreements, without limitation, supersedes

any effective previously considered tentative agreements.

 

            4.         Discussion.

                        a. RCW 41.56.030(4), infra, which defines

collective bargaining to include the execution of a written

agreement for the purposes of collective bargaining by

employees of political subdivisions of the State, renders oral

and tentative agreements unenforceable. In Re Bain v. Clallam

County, 77 Wn.2d 542, 463 P.2d 617 (1970). Any understanding

arrived at in collective bargaining negotiations necessarily,

therefore, remains preliminary, or as the court found here,

merely tentative until merged into a written agreement. In Re

Bain, at 547. In this present arbitration and in the context

of the general give-and-take involved in the negotiations of a

labor contract, proposals are put on and drawn off the table in

contemplation of a final agreement. In that context, the

tentative agreements reached in this arbitration are

unenforceable.

                        b. In addition, "the duty to bargain and the

authority of an interest arbitrator are concepts which must not

be commingled as they are not responsibilities which overlap."

Klauder v. Deputy Sheriff's Guild, 107 Wn.2d 338, 342-43, 728

P.2d 1044 (1986). In the Union's Brief on page 3 in relation

to the City's repudiation of the tentative agreements,

according to PERC, the Union's ". . . only remedy was to lodge

a complaint of unfair labor practice against the City with PERC

relative to each TA which Smolen had disclaimed." Here the

Union has attempted to commingle the duty to bargain and the

authority of the interest arbitrator, which clearly cannot be

done according to Klauder.

                        c. As regard to PERC's certification of the issues

for arbitration, ". . . under the APA, PERC's findings of fact

as well of its expertise in interpreting labor relations law

should be accorded 'great deference'." International

Firefighters v. PERC, 38 Wn. App. 572, 575, 686 P.2d 122

(1984). PERC, in their letter of June 11, 1987 to both the

City and the Union, certified the issues for the interest

arbitration. Because of PERC's knowledge in the field of labor

relations and its knowledge and addressing of the articles for

arbitration, the arbiters should defer to PERC for the

certification of issues to be resolved.

                        d. Also, "Washington courts define waiver as an

intentional and voluntary relinquishment of a known right."

International Firefighters, at 576. PERC, in their letter,

outlined the remedy for the Union as to the City's retraction

on various issues. Since the Union chose to forego that

remedy, it can be said that effectively they have waived their

correct remedy for the potential unfair labor practice.

            e. Rightfully, the "tentative agreements" Article

will not be enforced by the arbiters as such, but will be

reviewed in the same context as other issues for interest

arbitration as certified by PERC. The partisan arbiters

disagree on the weight to be afforded the tentative agreement.

 

D. AGREED BEFORE HEARING

 

            1. The term of the agreement was agreed upon by the

parties and established by PERC Certification as being for

1986, 1987 and through 1988. (JE #2)

 

            2. Considering the admissions in the Union brief,

pp. 1-6, together with City brief, pp. 1-3, the Table of

Issues, infra, declares that the following 1985 contract

articles are agreed to be in the new agreement: Article 1;

Recognition; Article 2, Non-discrimination; Article 3, Union

Security; Article 5, Payroll Deductions; Article 7, Holidays;

Article 8, Union Bulletin Boards; Article 9, Employer Rights

and Responsibilities; Article 11, Performance of Duty;

Article 12, Uniforms; Article 13, Shift Change; Article 14,

Personnel Reduction; Article 17, Grievance Procedure;

Article 18 Wages (except App. A or App. B) ; Article 20, Fire

Incentive Program; Article 25, Insurance Benefits; Article 26,

Productivity; Article 29, Savings Clause, Article 30, Signature

Page; new, Call-In for Absences. The following new article,

Management Grievances, was resolved by the parties prior to

hearing.

 

III. FINDINGS OF FACT, GENERAL

 

A. CONSTITUTIONAL AND STATUTORY AUTHORITY OF EMPLOYER.

 

            The City of Richland is a "Public Employer" within the

meaning and scope of the Public Employees' Collective

Bargaining Act, RCW 41.50. The Union, Local 1052, is a

statutory "bargaining representative" which has, as its

principal purpose,  the representation of firefighters

("uniformed  personnel") in their employment relations with the

City.

            The City of Richland is a First Class city with

authority as established in the following statutes relevant

here:

            RCW 35.22.020 -- Mode of exercising power, functions,

and duties.

            RCW 35.22.280 -- Specific powers enumerated.

            RCW 35.18 -- City Manager form of government with a

Mayor, Council and City Manager (Tr. 622).

            State Constitution Art. 7 § 2 (Amend. 55, 59); Art. 8

§ 6; Amendment 27, RCW 39.36 -- prohibit the City from deficit

financing. It must have a balanced budget (TR 32) . City used

up its ability to increase the sales tax (TR 33) RCW 82.14.

            RCW 35.22.280(5) -- authorizing the City to issue bonds

for indebtedness.

            RCW 82.14.210 -- equalization of sales tax results in

Richland receiving additional funding from the state to make

its sales tax collections comparable to average for the state.

 

B. STIPULATIONS OF THE PARTIES.

            1. Article 28 -- Term of Agreement shall be for 1986,

1987 and through 1988 as agreed by the parties prior to

hearing. (JE #2)

            2. New article -- Medical Certification, has been

agreed to in part between the parties subsequent to the

arbitration hearing and before completion of this Award and

Opinion. Letter dated November 17, 1987, and received

December 3,  1987, signed by Jim Cummins for the Union and

Daniel S. Smolen for the City, post-hearing, states: parties

have settled issue of length of paramedic certification

maintenance (City proposal paragraph 2 and Union proposal

paragraph 1.

 

C. COMPARATIVE DATA.

 

            1. RCW 41.56.460(c) (ii) states:

            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 exist within the State of

            Washington, other west coast employers shall

            not be considered.

 

            2.         Union Position.

                        The Union selected the fire departments of Redmond,

            Olympia, Snohomish, Clark #5, Bremerton, Kirkland, Longview,

            Aberdeen, Walla Walla, Kennewick, Bothell, Tukwila and Summit

            as being comparable size fire departments with like personnel

            (Ex. UE#3). This used a range of 25% above or below the size

            of Richland's Department.

 

            3. City Position.

                        The City proposed that Bremerton, Kennewick,

            Longview, Olympia, Redmond and Walla Walla be selected as

            common to Union and City list. This rejects fire districts as

            distinguished from departments because districts exist for a

            single limited purpose, are different from those of a city in

            function by statute and in terms of population, area served,

            services provided or ability to raise revenue and make

            expenditures. These cities are in a range 20% above or below

            the size of the City of Richland.

 

            4. Decision by Arbiters.

                        a. For general comparisons and where no

            identifiable differentials exist, the majority accepts as

            comparable the departments of Bremerton, Kennewick, Longview,

            Olympia, Redmond, and Walla Walla.

                        b. For some specific applications in Articles, we

            add some of the Union or City comparables where differentials

            distinguish their relevance. Reference to these will be made

            in the discussions of those specific articles in the Award and

            Opinion.

 

            5.         Discussion.

                        a. The selected departments appear in the

                        comparables selected by both the Union and the City. There are

                        important differences between departments and districts in

                        their population and area served, or ability to raise revenues

                        and make expenditures. The evidence does not provide detailed

                        facts of departments to enable selection of other departments

                        than those both parties proposed.

 

                        b. The purpose of using comparables is to rely on

                        precedent established by similar parties as a result of

                        collective bargaining and a guideline for what should be

                        acceptable and workable by those before us as shown by what

                        similar negotiations accepted and found workable.

 

                        c. This is not a statutory mandate to apply the

                        comparables selected to every changing subject or issue where

                        an impressive differential can be identified in the record.

 

D. AVERAGE CONSUMER PRICES - COST OF LIVING.

 

            a. Except for discussion of Article 27 - Basis for

Negotiations and Appendix A - Salaries, where cost of living is

referred to, neither party submitted complete data as to the

cost of living or "average consumer prices" guidelines

established in RCW 41.56.460(d). The Union highlights the cost

of living remarks in the 1986 City Budget Message (Ex. N-3,

Appendix A) to state that Richland refrained from providing

cost of living raises for 1984 and 1987 but "[it] may be

appropriate for 1987."

 

            b. Ex. C-97 purports to show CPI-W for Seattle-Tacoma

but doesn't explain the entries or the application to the

arbitration except in general terms. The difference from 1985

is not shown.

 

            c. It appears that the only use that can be made of

this factor is that from 1985 through July, 1987 the cost has

gone up but why, how much, and its relative weight are left to

conjecture. The "prediction" for 1988 is not discussed, if

relevant.

 

E.  CHANGES IN ANY OF THE FOREGOING CIRCUMSTANCES DURING

            PENDENCY OF PROCEEDINGS.

 

            1. New Article - Medical Certification/Recertification

and Training. The issue of length of retention of paramedic

certification in this Article was settled by the parties in

Letter, dated November 17, 1987, signed on behalf of the Union

by Jim Cummins, President, and on the behalf of the City by

Daniel S. Smolen, Labor Relations Consultant and received by

Chairman December 3, 1987.

 

            2. Article 27 - Basis for Negotiations was certified

on June 11, 1987, by PERC as before this panel. On

September 29, 1987, the day before the Arbitration hearing, the

Union filed an unfair labor practice with PERC regarding this

article. See Article 27 discussion in this opinion.

 

            3. By Letter dated February 22, 1988 from counsel for

the City and a response by Letter dated February 26, 1988 from

counsel for the Union, we have considered the additional

evidentiary matter on the issue of the economic situation of

the City of Richland.

 

F.  OTHER FACTORS NORMALLY OR TRADITIONALLY TAKEN INTO

            CONSIDERATION IN THE DETERMINATION OF WAGES, HOURS AND

            CONDITIONS OF EMPLOYMENT.

 

            See Paragraph B, II. Standards Applicable, page 10 in

this opinion.

 

IV. DETERMINATION OF ARBITERS

 

A. ARTICLE 4 -- UNION BUSINESS.

 

            1. Union proposal

 

            4.1 A Union member who is an employee in the

            bargaining unit will be granted time off without

            pay while attending Union associated conventions,

            seminars, meetings, and Union/Employer litigation

            matters, provided (1) he notifies the Operations

            Chief or above in writing at least forty-eight

            (48) hours prior to the time off. (2) The

            Employer will have sufficient employees available

            to man the department during this time off.

            (3) An employee called in to replace another

            employee who is off on Union Business (including

            time spent in face to face negotiations), will

            receive straight time pay and overtime pay as

            required by the FLSA. The Union will reimburse

            the City the amount over straight time pay if the

            cost of replacement exceeds the members pay at the

            regular hourly rate. It shall be optional for the

            employer to replace an employee off on Union

            Business Leave if the absence does not drop the

            shift below the minimum on duty personnel.

            Members of the negotiating team while on duty at

            said time they are negotiating, shall be paid a

            total of 50 man-hours in the aggregate for

            regular, scheduled on-duty time spent in face to

            face negotiations with the Employer for a labor

            agreement. Time spent in excess of 50 hours while

            within the City of Richland shall be on-duty

            available for response.1

 

1Here and in this opinion underlining indicates new language

added or substituted for 1985 language.

 

            4.2       The Union shall retain the privilege of

            holding Union Meetings at the Central Fire State

            [sic] during standby/non-structured duty hours.

            Paragraphs 4.2 and 4.3 shall be as contained in

            the 1985 agreement without change.

 

            2. City Proposal.

 

            a. City agrees to accept union proposal 4.1 for

capping overtime liability (Tr. 86.5-11) (City Brief p. 8) but

objects to inclusion of sentence stating, ''It shall be optional

for the employer to replace an employee off on Union Business

Leave if the absence does not drop the shift below the minimum

on duty personnel."

 

            b. City objects to proposed elimination of

language for paragraph 4.2 concerning new satellite station

when established, and wants to retain 1985 language as follows:

 

            4.2 The Union shall retain the privilege of

            holding Union Meetings at the Central Fire Station

            during standby/non-structured duty hours, provided

            that on-duty employees shall, with the exception

            of the Union President, Vice President and

            Secretary, remain at their respective duty

            stations. If a third station is established,

            speaker-phones linking the Central with the other

            stations on a private line will be installed by

            the Employer by the time that the new station is

            fully operational, and said speaker-phones may be

            used by the Union for its meetings. Operating

            costs will be shared equally by the Employer and

            the Union. In the event the speaker phone is out

            of order, one company within four miles of the

            Central Station may move up to the Central Station

            for Union meetings.

 

            c. Paragraphs 4.3 and 4.4 shall be as contained in

the 1985 agreement without change.

 

            3.         Decision of Arbiters.

 

                        a. Article 4 -- Union Business shall be as follows

 

                        4.1                   A Union member who is an employee in the

                        bargaining unit will be granted time off without

                        pay while attending Union associated conventions,

                        seminars, meetings, and Union/Employer litigation

                        matters, provided (1) he notifies the Operations

                        Chief or above in writing at least forty-eight

                        (48) hours prior to the time off. (2) The

                        Employer will have sufficient employees available

                        to man the department during this time off.

                        (3) An employee called in to replace another

                        employee who is off on Union Business (including

                        time spent in face to face negotiations) , will

                        receive straight time pay and overtime pay as

                        required by the FLSA. The Union will reimburse

                        the City the amount over straight time pay if the

                        cost of replacement exceeds the members pay at the

                        regular hourly rate. Members of the negotiating

                        team while on duty at said time they are

                        negotiating, shall be paid a total of 50 man-hours

                        in the aggregate for regular, scheduled on-duty

                        time spent in face to face negotiations with the

                        Employer for a labor agreement. Time spent in

                        excess of 50 hours while within the City of

                        Richland shall be on-duty available for response.

 

                        4.2                   If a third station is established, the

                        Union shall retain the privilege of holding Union

                        Meetings at the Central Fire Station during

                        standby/non-structured duty hours, provided that

                        on-duty employees shall, with the exception of the

                        Union President, Vice President and Secretary,

                        remain at their respective duty stations.

                        Speaker-phones linking the Central with the other

                        stations on a private line will be installed by

                        the Employer by the time that the new station is

                        fully operational, and said speaker-phones may be

                        used by the Union for its meetings. Operating

                        costs will be shared equally by the Employer and

                        the Union. In the event the speaker phone is out

                        of order, one company within four miles of the

                        Central Station may move up to the Central Station

                        for Union meetings.

 

                        4.3                   No Union member or officer shall conduct

                        any Union business on Employer scheduled active

                        duty/ structured duty work time on the Employer's

                        premises, except during breaks, lunch, or as

                        provided within Article 4.

 

                        4.4                   Nothing in this Article shall preclude

                        the two parties from meeting at reasonable times

                        to discuss areas of mutual concern when mutually

                        agreed to.

 

            4. Discussion.

 

            a. The decision incorporates that part of the

Union's proposal agreed to by the City as it accomplishes

economically and reasonably the requirements of the Federal

Fair Labor Standards Act.

            b. The sentence concerning "minimum on duty

personnel" interferes with the City's prerogative to establish

appropriate manning levels. Past practice as evidenced by

Article 9.1.2.3 approved for inclusion in this agreement from

the 1985 agreement corroborates the city's "right to determine

methods, means, and personnel necessary for the Department

operations." PERC decisions confirm this management

prerogative. (City Brief, pp. 8-9) The setting of minimum

personnel requirements is a management function, with

management being always mindful in these decisions of its

requirement to provide for public safety and its duty to

protect the safety and health of its employees.

            c. The proposed locations of planned future

stations support the need for the retention of provisions of

paragraph 4.2 concerning employees remaining at respective duty

stations. The provision's non-use since 1985 is not ground for

removal presently from the agreement. This provision would

serve the dual purposes of providing for public safety and for

the encouragement of union activities by the members at these

satellite stations who would be unable physically to attend.

 

B. ARTICLE 6 -- OCCUPATIONAL DISABILITY ALLOWANCE.

 

            1. Union Proposal.

 

            6.1                   For those employees hired on or after

            October 1, 1977, who are LEOFF Plan II members,

            the Employer will provide an occupational

            disability allowance for such employees injured in

            the line of duty pursuant to the provisions of

            RMC 2.28.855, except that such allowance shall be

            limited to the number of fire fighter shifts

            normally scheduled for employees during a calendar

            year. The allowance shall begin with the date of

            the job-incurred injury which the employee would

            have worked had an on-duty injury not occurred.

            The total time period covered by Article 6

            (Occupational Disability Allowance) shall be

            limited to one (1) year per incident (injury,

            disease. or infection).

            6.2                   The first two shifts shall be paid at

            straight-time wages less any Industrial Accident

            or other compensation, except holiday pay, which

            may be applicable. The remaining shifts, up to

            the maximum limit specified above, shall be paid

            at 80% of straight time base wages less any

            Workmen's Compensation or other applicable

            compensation. Payment will be made only when it

            has been determined that a job-related

            injury/occupational disease has occurred and will

            continue as long as such job related

            injury/occupational disease continues, subject to

            the maximum limit stated above. Employees

            receiving holiday pay specified in Article 7 of

            this Agreement shall not have holidays credited to

            occupational disability leave.

 

            2.         City Proposal.

            a. City agrees to accept Union proposal 6.1 (City

Brief, p 11) , but objects to inclusion of sentence stating

"The total time covered by Article 6 (Occupational Disability

Allowance), shall be limited to one (1) year per incident

(injury, disease, or infection)."

 

            b. City proposes to add 6.1.1 as follows:

            6.1.1                The total time covered by occupational

            disability allowance, including holidays, shall be

            limited to one year per eligible. unrelated

            incident. Eligibility for any occupational

            disability benefits shall be determined pursuant

            to the Washington State Workmen's Compensation Act.

 

            c. City agrees to accept Union proposal 6.2, but

objects to the inclusion of holiday pay in the compensation

received by a disabled firefighter (Tr. 109:18-24) (City Brief,

P. 11).

            d. City proposes to add a new paragraph 6.3 as

follows:

            6.3                   An employee receiving an occupational

            disability allowance pursuant to this Article

            shall perform light duty tasks subject to the

            approval of his treating physician, provided such

            light duty tasks will not continue more than six

            months from the date the employee is determined to

            be disabled for purposes of receiving benefits

            under the Washington State Workmen's Compensation

            Act.

            3.         Decision of Arbiters.

            Article 6 -- Occupational Disability Allowance shall be

as follows:

 

            6.1                   For those employees hired on or after

            October 1, 1977, who are LEOFF Plan II members,

            the Employer will provide an occupational

            disability allowance for such employees injured in

            the line of duty pursuant to the provisions of RMC

            2.28.855, except that such allowance shall be

            limited to the number of fire fighter shifts

            normally scheduled for employees during a calendar

            year. The allowance shall begin with the date of

            the job-incurred injury which the employee would

            have worked had an on-duty injury not occurred.

            6.2                   The first two shifts shall be paid at

            straight-time wages less any Industrial Accident

            or other compensation which may be applicable.

            The remaining shifts, up to the maximum limit

            specified above, shall be paid at 80% of

            straight-time base wages less any Workmen's

            Compensation or other applicable compensation.

            Payment will be made only when it has been

            determined that a job-related injury/occupational

            disease has occurred and will continue as long as

            such job related injury/occupational disease

            continues, subject to the maximum limit stated

            above. Employees receiving holiday pay specified

            in Article 7 of this Agreement shall not have

            holidays credited to occupational disability leave.

            6.3                   An employee receiving an occupational

            disability allowance pursuant to this Article

            shall perform light duty tasks subject to the

            approval of his treating physician, provided such

            light duty tasks will not continue more than six

            months from the date the employee is determined to

            be disabled for purposes of receiving benefits.

 

            4.         Discussion

            a. This benefit provided in the 1985 contract to the

LEOFF II firefighter is a valuable benefit equal to full salary

up to a year when he cannot fully perform his job due to a

work-related injury or occupational disease. It provides

greater compensation for disabled firefighters than for those

on regular duty (Tr. 142:8-15). This results from the fact

that disability payments are not subject to income and social

security taxes (Tr. 142:12-15) (RCW 41.04.505).

            b. Comparative data offered by the City demonstrates

that the limitations proposed by the City and adopted here as

to time and holiday pay still leave Richland giving greater

benefits than any of the other departments. Limiting the time

to one year per eligible unrelated incident is a reasonable

restriction of time per unrelated incident. Otherwise, it

could be argued that an aggravation of injury would begin

another year.

            c. There are no other employees who receive holiday

pay for not working. A firefighter on disability leave is not

scheduled to work on holidays, but the special allowance of

holiday pay normally is justified for full duty firefighters as

they are scheduled for duty on holidays (Tr. 110:1-3). It is

reasonable to equate the disabled and full duty firefighters

equal status on this computation of disability pay since it is

a misnomer to say that a disabled person is being benefitted by

being disabled.

            d. With respect to paragraph 6.3 above concerning

light duty, the union argues that the subject is covered by RCW

41.04.500 through 41.04.530. The subject is covered by RCW

41.04.515 which refers to RCW 41.04.500 through RCW 41.04.530

stating that the disability leave supplement shall continue as

long as the employee is receiving benefits under RCW 51.32.090

up to a maximum of six months from the date of injury or

illness. Paragraph 6.3 above does not and can not change the

meaning of the statute, but it is helpful to have a ready

reference of its subject matter.

 

C. ARTICLE 10 -- PREVAILING RIGHTS

 

            1.         Union Proposal.

            a. Sections 10.1 and 10.1.1 shall be as contained

in the 1985 agreement without change.

            b. Sections 10.1.2 and 10.1.2.1 are to be placed

under Article 19.

            c. Sections 10.1.2, 10.1.3 and 10.1.4 are as

contained in the 1985 agreement, except they are renumbered

respectively 10.1.3, 10.1.4 and 10.1.5.

 

            10.1.2              Employees shall maintain the right to

            use "crew room" during leisure hours.

            10.1.3              Employees shall maintain kitchen and

            sleeping rights

            10.1.4              Employees shall retain guest and

            personal telephone privileges in local area and

            agree to charge all personal long distance calls

            to non-employer number.

 

            2.         City Proposal.

            a. Section 10.1 shall be amended as follows:

 

            10.1                 All rights and privileges held by the

            employees at the present time are included in this

            Agreement and shall remain in force, unchanged and

            unaffected in any manner. These rights and

            privileges are (___):

 

            b. City agrees to accept Union's Section 10.1.1 as

contained in the 1985 agreement without change.

            c. Sections 10.1.2(A)-(M), shall be as contained

in the 1985 agreement without change, except for 10.1.2(L) to

be amended to exclude reference to the "month of October 10."

            d. City proposes to amend Section 10.1.2.1 to

provide that payback of compensatory leisure time be

coordinated by the Operations Chief (Tr. 150:19-151:5) (City

Brief, p. 16) to read as follows:

 

            10.1.2.1                       Employees who, upon request

            authorized by the Operations Chief, agree to work

            beyond structured duty hours into their leisure

            time shall have leisure time worked paid back on

            an hour-for-hour basis, provided that duties

            performed during leisure time pursuant to

            paragraphs A through M of Section 10.1.2 shall not

            be eligible for payback except duties performed

            during leisure time pursuant to paragraphs K

            and L. which shall be paid back on an

            hour-for-hour basis.

 

            e. City agrees to accept Union proposed

Sections 10.1.2, 10.1.3 and 10.1.4 as contained in the 1985

agreement without change. City has these proposals numbered as

Sections 10.1.3, 10.1.4 and 10.1.5, respectively.

 

            3.         Decision of Arbiters.

            Article 10 - Prevailing Rights shall be as follows:

 

            10.1                 All rights and privileges held by the

            employees at the present time which are not

            included in this Agreement shall remain in force,

            unchanged and unaffected in any manner. These

            rights and privileges shall include but not be

            limited to the following:

            10.1.1              Employees shall have the right to

            retain store call in its present form, provided

            that shift officers shall consider energy

            conservation in scheduling and implementing store

            call.

            10.1.2              Employees shall maintain the right to

            use "crew room" during leisure hours.

            10.1.3              Employees shall maintain kitchen and

            sleeping rights.

            10.1.4              Employees shall retain guest and

            personal telephone privileges in local area and

            agree to charge all personal long distance calls

            to a non-employer number.

 

            4. Discussion.

            a. The proposal of the City to limit the

prevailing rights clause only to those included specifically in

the agreement is based on three propositions that "open-ended

clause has caused limitless disputes"; "open-ended clause is

unnecessary in mature relationship"; and "contracts from

comparable jurisdictions support City position." These

constitute legitimate labor-management concerns and principles

applicable, however, only if the record supports them in the

particular bargaining contract or arbitration.

             (1) First,we must define the phrase,

"prevailing rights and privileges" and particularly, its

difference from "prevailing practices," if any, and the meaning

and effect of management rights on this issue. The record here

mentions this issue briefly in the testimony of Mr. Smolen

(Tr. 52), Mr. Sharp (Tr. 146. Nowhere, except in the 1985

contract, Article 10.1.2, are specific "prevailing rights and

privileges" defined. There appears to be a listing of duties

pertaining to hours rather than rights which supports the

Union's position to transfer these to Article 19.

             (2) We turn to the standard dictionary and the

treatise How Arbitration Works, Elkouri and Elkouri, 4th

edition, pp. 412-417, to determine the status of any

definition. There we find:

 

            "Views Regarding Management Rights

                                    Under the common law, owners of business

                        establishments possess certain freedoms of action,

                        incidental to their legal status, which are

                        commonly called management rights or management

                        prerogatives. The word 'right' has been defined

                        by Webster to mean 'any power, privilege, or

                        immunity, vested in one by authority, social

                        custom *** or *** by the law ***,' Webster has

                        defined the word 'prerogative' to mean the 'right

                        to exercise a power or privilege in priority to,

                        or to the exclusion of, others *** for the

                        exercise of which in theory there is no

                        responsibility or accountability as to the fact

                        and the manner of its exercise.'"

            Elkouri at p. 415:

                                    "Various conclusions have at different times

                        been reached by objective observers concerning how

                        far unions may desire or be inclined to push into

                        management areas:

                                    "(A) Some unions appear constantly to seek a

                        larger share in the governance of the industry

                        while others believe that they should avoid

                        responsibility  for the conduct of the business.'9

                                    "(B) There is no consciousness of invading

                        managerial prerogatives. By the same token there

                        is no area of management which most [unions] would

                        hesitate to put on "next year's list" if they felt

                        the interest of the union were involved.'10

                                    "(C) In the daily shop work of job

                        assignments, skill classification, production

                        standards, and maintenance of discipline, union

                        officers show little desire to join in managing

                        and in initiating action; they prefer to retain

                        their freedom to protest management's decisions

                        and to stay out of the cross fire of criticism and

                        avoid the wounding resentments of their own

                        members.

                                    "Unions have not pushed massively and

                        inexorably into vital policy areas. They have

                        pushed when they could and when it was in their

                        clear interest to do so, advancing when management

                        was careless or weak and retreating when

                        management aggressively resisted them. When

                        unions do enlarge their powers, it is almost

                        always in those areas where they have long been

                        established: wages, hours, and conditions of

                        employment'11

            The record before us is not complete enough on past

practice for us to enter this thicket. The problems of the

conflict of Article 9 Management's Rights with the rights of

Article 10 as presently constituted (being Union "prevailing

rights") could not as a practical matter be limited, even if it

were possible to achieve on the record and briefs here.

But Article 9 rights and Article 10 rights must be defined

on a case-by-case basis in accordance with "long-established

past practice provable in each instance as being so ingrained

in the work place that it would be unreasonable to change them"

(emphasis added). This is the only type of right protected

under Section 10.1, and if it is not of this type, the right is

not properly grievable by the employee or union. "Unknown

rights" are not under this clause. They must be based on past

practice.

             (3) We must accept the fact that the

"open-ended clause has caused many disputes" in view of the

situation described in Elkouri concerning management and

employee or Union rights as discussed above. Whether these

issues are viewed as management rights or employee rights

disputes will arise whether Article 9 or Article 10 is viewed

as the culprit.

             (4) There is not enough showing in the record

here to conclude these parties have developed a mature enough

relationship as urged by the City to specifically define

"prevailing rights" with a limitation. The limitations of

proof of past practice is sufficient.

             (5) Examination of the comparatives furnished

by the City (City Exhibit 30) indicates they are not generally

limited but in the instances of Kennewick, Kent and Lynnwood,

the prevailing rights are marshalled by some restrictive

procedures.

            b. The proposal of the Union to transfer

Sections 10.1.2, 10.1.2 and 10.2.1 is reasonable and appears in

Article 19, infra.

            c. The proposal of the City to change

Section 10.1.2(A)-(M) and Section 10.1.2.1 is discussed in

Article 19, infra.

 

D. ARTICLE 14 -- PERSONNEL REDUCTION

 

            1.         Union Proposal.

            Sections 14.1, 14.2 and 14.3 shall be as contained

in the 1985 agreement without change.

 

            2.         City Proposal.

            a. Sections 14.1, 14.2, 14.3 and 14.4 shall be

amended as follows:

 

            14.1                 Personnel reduction. as determined by

            the Employer. shall be based on employee merit and

            qualification relative to the City's needs as

            determined by the Employer.

            14.2                 When employees are laid off. they shall

            be placed on a reemployment list for two years.

            Employees will be recalled in inverse order of

            layoff. Employees who have been laid off who wish

            to return to work shall keep the Human Resources

            office advised of their current addresses.

            14.3                 In the case of  reduction in rank, the

            criteria used shall be employee merit and

            qualification relative to the City's needs, as

`           determined by the Employer. Employees reduced in

            rank shall be placed on a repromotion list for a

            period of two years and will be promoted in

            inverse order of reduction.

            14.4                 Employees recalled from personnel

            reduction or repromoted from reduction in rank

            within six months will not have to serve a

            probationary period unless they were on probation

            prior to the layoff or reduction in rank. Those

            recalled or repromoted after six months shall

            serve a probationary period of at least one year.

 

            b. As a less desirable alternative, City would

propose that reductions be governed by City Ordinance

(Tr. 183:20-184:2) (City Brief, p. 21).

 

            3.         Decision of Arbiters.

            a. Article 14 -- Personnel Reductions shall be:

 

            14.1                 In the case of personnel reduction, the

            employee having the least seniority in the Fire

            and Emergency Services Department shall be laid

            off first. Time in the Fire and Emergency

            Services Department shall be given first and

            utmost consideration. In the case of reduction in

            rank, time in position shall be given first

            consideration. If time in position is equal,

            scores on the Certification List(s) shall govern,

            such that the employee with the lowest score on

            the most recent certification list shall be

            reduced-in-rank first. If scores on the

            certification list are equal, then time in the

            Fire and Emergency Services Department shall

            govern such that the employee with the least time

            shall be reduced-in-rank first.

            14.2                 When employees are laid off, their names

            shall be placed on an employment list in order of

            seniority, with the employee having the most

            seniority at the head of the list, and the person

            with the least seniority at the bottom. This list

            shall stand for a period of two years and no new

            employees may be hired during that period until

            the laid-off personnel have been given the

            opportunity to return to work.

            14.3                 Persons being repromoted to positions

            held prior to being reduced in rank shall be

            repromoted in the reverse order from which they

            were reduced in rank.

 

            4.         Discussion.

            a. The Union argues that: (1) this seniority

clause was agreed to in a Supplemental Agreement of January 6,

1986 which continues to be binding; (2) the City is acting in

"bad faith"; and (3) the seniority system protects against the

"good old boy" system.

            b. The City argues that: (1) the seniority system

cripples the City's efforts to retain individuals who have

obtained valuable skills in emergency medical aid; (2) for last

renewal year the City, for economic reasons, has steadily

reduced service and personnel but refrained from making

substantial cuts in those areas (Tr. 626:1-13, Exs. C-13,

C-35); and (3) seniority system would not permit City to retain

the most needed skills (Tr. 190:20-191:7).

            c. Our conclusion to retain the seniority system

recognizes that the seniority system does protect against a

"good old boy" system and subjectivity in decision-making, and

will, at present, if unpredictable reductions occur, reduce the

greatest number of medical skilled personnel for medical

emergency services. We do not find any bad faith on the part

of the City nor consider the supplemental agreement here to be

any more efficacious than other supplemental and tentative

agreements. (see para. II.C, above). It also suggests that

the present situation results from the manner of training or

recruiting by the City and in a reasonable time could be

corrected to qualify more seniors, if necessary. This

situation does not seem to be of sufficient detriment to

abandon the entire seniority system.

            d. The comparative evidence shows the seniority

principle to be used in every comparative department considered

by the panel without exception and, in addition, other

departments in the evidence which, for other reasons, are not

considered closely comparative.

            e. This system also protects seniors who are

highly trained and proven from being victims of subjective

decision-making involving reductions in force when the City

professes to be on a limited budget. It protects them from

falling victim to the financial ax rather than the lower paid

junior member when all other factors are equal. We do not find

or mean to suggest bad faith on the part of the City in this

regard, but just profess the City's admissions of budgetary

reality.

            f. Firefighting is also acknowledged to be a very

dangerous profession, involving the firefighter's and the

public's health and safety. Whatever slightly diminished

physical capacity a senior firefighter may suffer, those years

of experience could result in greater protection for the

public, and the firefighter's co-workers.

            g. The Union argument of this being a tentative

agreement has been discussed in Paragraph II.C., above.

 

 

ARTICLE 15 -- WORKING OUT OF CLASSIFICATION -- EFFECT

            ON PAY

            1.         Union Proposal.

            a. Section 15.1 shall be as contained in the 1985

agreement without change.

            b. Section 15.1.1 shall be amended as follows:

 

            15.1.1              Employees working a minimum of

            12 hours out-of-classification shall be

            compensated for the "E" step rate for the

            out-of-class position worked. In the event

            2 employees work an equal 12 hours

            out-of-classification for the same position,

            during a 24-hour shift, the employee working the

            8:00 a.m. to 8:00 p.m. portion shall receive the

            out-of-classification pay. Any employee working

            out-of-classification will be paid the higher

            amount only for those shifts he works out-of

            classification. At the completion of six (6)

            continuous months out-of-classification, the

            employee will be entitled to a merit increase in

            the out-of-classification position, so long as the

            employee continues to work the

            out-of-classification position. This provision

            shall apply to all suppression officer positions

            covered by this Agreement.

 

            c. Paragraph 15.1.2 shall be as contained in the

1985 agreement without change.

 

            2.         City Proposal.

            a. City accepts Union's proposed Section 15.1,

which is as contained in the 1985 agreement without change.

            b. Section 15.1.1 shall be as contained in the

1985 agreement without change.

            c. City accepts Union's proposed Section 15.1.2,

which is as contained in the 1985 agreement without change.

 

            3.         Decision of Arbiters.

            a. Article 15 -- Working Out of Classification --

Effect on Pay shall be as follows:

 

            15.1                 Any person covered by this Agreement who

            is required to accept the responsibilities and

            carry out the duties of the position or rank above

            that which he normally holds shall be compensated

            in the following manner:

            15.1.1              An employee shall receive $10.00 per

            shift for a minimum of 12 hours worked

            out-of-classification. In the event two employees

            work an equal 12 hours out-of-classification for

            the same position, during a 24-hour shift, the

            employee working the 8:00 a.m. to 8:00 p.m.

            portion shall receive the out-of-classification

            pay. No more than $10.00 per position, per shift,

            shall be paid. Any employee working

            out-of-classification will be paid the higher

            amount only for those shifts he works

            out-of-classification. At the completion of six

            (6) continuous months out-of-classification, the

            employee will be entitled to the E step rate of

            pay in the out-of-classification position, so long

            as the employee continues to work the

            out-of-classification position. This provision

            shall apply to all suppression officer positions

            covered by this Agreement.

            15.1.2              It is the intent of both parties that

            the new lieutenant position on each shift,

            established in April, 1981, would not be filled by

            upgrade. The existing lieutenant position would

            be filled by upgrade as outlined in the Upgrade

            Policy dated April 9, 1980.

            15.1.3              If a permanent vacancy should occur,

            the City may not through a series of "out of

            classification" appointments avoid promoting

            individuals to gain advantage of the lower pay

            scale provided by this article.

 

            4.         Discussion.

            a. Bargaining unit members are selected for

out-of-classification assignments from firefighter to

lieutenant only if they have volunteered for an upgrade list

(Tr. 208:8-25). There are plenty of volunteers at the $10.00

per shift premium, probably because it makes them

better-qualified for promotion. For the officer level

(Lieutenants as Captains, Captains as Battalion Chiefs), the

out-of-classification is one of the duties of the job

descriptions (Tr. 209:7-6), yet they receive the premium pay

(Tr. 210:3-14). It makes them better qualified for promotion.

The comparable departments offered in the evidence are mixed in

response to this issue: Redmond - $1 per hour; Olympia - $.65

per hour; Bremerton - two hours O/T pay per shift; Longview -

rate of pay for positions worked; Walla Walla - Lt/10% per day,

Capt/5% per day; and Kennewick - Lt/$5.50 per day, Capt/$8.50

per day. Only one, Longview, pays rate of pay for positions

worked out of classification. The other comparables selected

by us report differences in hours and applications that make

comparison less reliable for this issue. These pay levels in

comparable departments do not demonstrate a need to change the

present premium pay level even though that level is less than

all of the comparables except Kennewick.

            b. The opportunity for improvement and advancement

provides a valuable compensation to the upgraded employee.

Volunteers presently furnish the needs of the City, so that

adequate staffing is maintained for "temporary" work out of

classification.

            c. It is intended by the arbiters that this

working out of classification pay scale and system is to be

read in conjunction with Article 16 -- Vacancies and

Promotions, and not subvert that system. If a permanent

vacancy should occur, the City may not through a series of "out

of classification" appointments avoid promoting individuals to

gain advantage of the lower pay scale provided by this

article. If this type of scenario were to occur, it would be

contrary to the City's position that these temporary

appointments are stepping stones to an employee's advancement

in the department. The six month limitation speaks to this

provision as a limitation.

 

F. ARTICLE 16 -- VACANCIES AND PROMOTIONS

 

            1.         Union Proposal.

            a. Section 16.1 shall be amended as follows:

 

            16.1                 When a permanent vacancy occurs in any

            position, it shall be filled within thirty (30)

            days of the official severance of the departing

            member from the Fire and Emergency Services

            Department. A vacancy shall be filled from the

            point where the vacancy occurred, provided,

            however, that in the event the initial vacancy is

            the result of a disability leave, the lowest

            unfilled vacancy may remain open for the period of

            such disability leave.

 

            b. Sections 16.2 and 16.3 shall be as contained in

the 1985 agreement without change.

            c. Section 16.4 shall be amended as follows:

 

            16.4                 Promotional lists shall be in effect for

            two years provided that there are at least three

            names on the list.

 

            2.         City Proposal.

            a. Section 16.1 shall be amended as follows:

 

            16.1                 The right to determine whether or not a

            vacancy in any position covered by this Agreement

            is to be filled, and, if so, when, is vested

            solely in the Employer.

 

            b. Section 16.2 shall be amended as follows:

 

            16.2                 All vacancies shall be filled through a

            competitive examination process determined by the

            City of Richland Personnel Board.

 

            c. Section 16.3 shall be amended as follows:

 

            16.3                 When it is determined by the Employer

            that a vacancy in a position covered by this

            Agreement is to be filled, appointment to the

            position shall be made by the appointing authority

            from among the top three names on the

            certification list established for the position.

 

            d. Section 16.4 shall be amended as follows:

 

            16.4                 The provisions of this Article do not

            apply to the filling of vacancies in positions not

            covered by this Agreement.

 

            3.         Decision of Arbiters.

            Article 16 -- Vacancies and Promotions shall be as

follows:

 

            16.1                 The right to determine whether or not a

            vacancy in any position covered by this agreement is to

            be filled, and, if so, when, is vested solely in the

            Employer.

            16.2                 All vacancies shall be filled through a

            competitive examination process determined by the City

            of Richland Personnel Board.

            16.3                 When it is determined by the Employer that a

            vacancy in a position covered by this agreement is to

            be filled, appointment to the position shall be made by

            the appointing authority from among the top three names

            on the certification list established for the

            position. For information purposes only, the

            appointing authority shall give the two losing

            candidates written reasons for not being selected.

            16.4                 Promotional lists shall be in effect for one

            year provided there are at least three (3) names on the

            list.

            16.5                 The provisions of this article do not apply

            to the filling of vacancies in positions not covered by

            this agreement. See Article 1.1.

 

            4.         Discussion.

            a. Consistent with our discussion of Management

Rights in Article 10 at pages 35-38, we apply here the

principle that management rights are that authority that

management must have with freedom, at the risk of failure, to

carry out its function of managing the enterprise. This is

particularly necessary in a public employment relationship,

such as firefighting, where accountability to the body politic

must not be diluted or borne by the Union or individual

employee.

            b. The past practice here has weakened that

responsibility  under the provisions of the 1985 contract here

urged by the Union to continue with minor changes. The Union

is not to be criticized for following the provisions of the

1985 contract vigorously which permitted positions of grievance

because of the words "immediately" in 16.1 and "just cause" in

16.3 (Tr. 39.44.45 and 3), nor do we second guess the arbiter's

decision by Lumley (Ex. U-3). Whether an explanation amounts

to explaining just cause is an individual judgment best left

with management who must answer to the people for mistakes and

misjudgments, rather than come to grievance procedures.

            c. Comparable jurisdictions utilized by us do not

have any agreement specifying procedure for filling position

vacancies or promotions (Ex. 42). Similarly, only Olympia

requires that reasons be explained for pass-over (Ex. C-43).

Not one requires just cause be shown.

            d. However, it is reasonable to expect to explain

privately in writing to the unsuccessful candidate the reason

for his or her pass-over. This provision tends to legitimize

the process.

            e. This Article is to be read and interpreted in

conjunction with the discussion in Article 15 -- Working Out of

Classification. Even though management has the sole discretion

to decide when to fill a position, and it is understood that

temporary working out of classification is a means of filling

vacancies while the promotion process occurs, this time period

is not unlimited when the position is needed to be filled. It

could be inferred from Article 15 that six months would be an

ultimate cap for filling a position, but practically the time

will vary depending on the situation. As previously mentioned,

management must fulfill its responsibility to the public, and

to maintain adequate staffing to protect its own employees.

 

G. ARTICLE 17 -- GRIEVANCE PROCEDURE

            Agreed - See paragraph II.D, page 19.

 

H. ARTICLE 18 -- WAGES

            a. Note Article 18, except for Appendix A and

Appendix B, was resolved by the parties (City Brief, p. 3;

Union Brief, p. 5).

            b. See Appendix A and Appendix B, following I;

Article 28 herein.

 

I. ARTICLE 19 -- HOURS

            1.         Union Proposal.

 

            19.1                 The hours of duty shall be approximately

            50.6 hours a week as per those presently worked,

            provided a total of ten (10) shifts off will be

            periodically scheduled on a rotating basis for

            each employee. Two (2) additional shifts off will

            be taken by each employee on a manpower available

            basis.

            19.2                 Employee structured work hours shall be

            8:00 a.m. to 4:30 p.m. everyday except Saturdays,

            Sundays and holidays. Saturdays and Sundays shall

            be 8:00 a.m. to 12:00 noon and holidays shall be

            8:00 a.m. to 10:00 a.m. Non-structured work hours

            (standby time) shall be 4:30 p.m. to 8:00 a.m.

            everyday except Saturdays, Sundays and holidays.

            Holidays shall be at 10:00 a.m. to 8:00 a.m.,

            Saturdays and Sundays shall be 12:00 noon to

            8:00 a.m.

            19.3                 (1985 10.1.2) The following specific

            duties will continue to be performed as they have

            been in the past when they occur during

            non-structured (standby) hours:

 

                        A. Registering bicycles

                        B. Registering voters

                        C. Officers' reports

                        D. Log book entries

                        E. Routine paper work

                        F. Ambulance and fire reports

                        G. Assuring the front line readiness of

                           emergency apparatus; i.e., cleaning up of

                           vehicles, replenishing air supplies,

                           hoses, etc.

                        H. Assuring operational readiness of radio

                           alarm system, i.e., testing (excluding

                           normal box tests) , shunting, response to

                           non-emergency messages.

                        I. Special request helicopter standby

                        J. Medication and drug checks as required

                        K. Assist in testing entry level applicants

                           during two (2) consecutive work days each

                           calendar year.

                        L. Participate in Department Open House on

                           one Saturday in October until 1600 hours

                           and clean-up thereafter.

                        M. Other past duties which may later be

                           identified and agreed to by the parties to

                           this Agreement.

 

            19.3.1              (1985, Section 10.1.2.1) When duties

            "K" and "L" are performed during non-structured

            hours, the employee(s) who perform such duties

            shall be given compensatory time during structured

            hours in the form of additional non-structured

            hours, on a one (1) hour of compensatory time for

            one (1) hour of work basis.

            19.3.2              Employees agreeing to and performing

            employer requested work, other than that

            identified in 19.3.1. during non-structured hours.

            receive compensatory time at a rate of 1-1/2 hours

            of compensatory time for each hour of work.

 

            2.         City Proposal.

            a. Section 19.1 shall be as contained in the 1985

agreement without change.

            b. City would amend Section 19.2 as follows:

 

            19.2                 Employee work hours, for scheduled

            activities shall be 8:00 a.m. to 5:00 p.m. every

            day. The activity schedule for Thanksgiving Day

            and Christmas will be 8:00 a.m. to 10:00 a.m.

 

            c. City proposes the addition of Section 19.3

as follows:

 

            19.3                 Both parties recognize the need to

            schedule additional activities after 5:00 p.m.,

            and that Employer retains the right to do so.

            that the City shall not schedule more

            than 18 activity hours per shift after 5:00 p.m.

            per calendar year.

 

            3.         Decision of Arbiters. (Effective April 1, 1988)

            Article 19 - Hours shall be:

 

            19.1                 The hours of duty shall be 50.923 hours

            a week as per those presently worked provided a

            total of ten shifts off will be periodically

            scheduled on a rotating basis. One additional

            shift off will be taken by the employee on a

            manpower available basis.

            19.2                 Employee structured work hours, for

            scheduled activities, shall be 8:00 a.m. to

            5:00 p.m. Monday through Saturday. Structured

            work hours for Sunday and New Year's Day,

            Presidents Day, Memorial Day, Independence Day,

            Labor Day, Veterans Day, Thanksgiving and Christmas

            shall be from 8:00 a.m. to 12.30 p.m.

            19.3                 Both parties recognize the need to

            schedule additional activities after 5:00 p.m. and

            that the employer retains the right to do so,

            provided that the City shall not schedule more

            than 18 activity hours per shift after 5:00 p.m.

            per calendar year.

            19.4                 The following specific duties will

            continue to be performed as they have been in the

            past when they occur during leisure hours:

 

                        A. Registering bicycles

                        B. Registering voters

                        C. Officers' reports

                        D. Log book entries

                        E. Routine paper work

                        F. Ambulance and fire reports

                        G. Assuring the front line readiness of

                           emergency apparatus; i.e., cleaning up of

                           vehicles, replenishing air supplies,

                           hoses, etc.

                        H. Assuring operational readiness of radio

                           alarm system, i.e., testing (excluding

                           normal box tests) , shunting, response to

                           non-emergency messages.

                        I. Special request helicopter standby

                        J. Medication and drug checks as required

                        K. Assist in testing entry level applicants

                           during two (2) consecutive work days each

                           calendar year.

                        L. Participate in Department Open House on

                           one Saturday in October until 1600 hours

                           and clean-up thereafter.

                        M. Other past duties which may later be

                           identified and agreed to by the parties to

                           this Agreement.

            19.4.2              Employees, who, upon request

            authorized by the Operations Chief, agree to work

            beyond structured duty hours into their

            non-structured time, and employees engaged in

            activities after 5:00 p.m. scheduled by employer,

            shall have non-structured time worked paid back on

            an hour for hour basis, provided that duties

            performed during non-structured time pursuant to

            Sections "A" through "M" of Section 19.4.1 shall

            not be eligible for payback except duties

            performed during non-structured time pursuant to

            "K" and "L" which shall be paid back on an hour

            for hour basis.

 

            4.         Discussion.

            a. Unlike eight-hour-per-day and 40-hour-per-week

employees, firefighters are scheduled on 24-hour shifts

(Tr. 293:5-12). If three sets of shift workers divide the

hours of a year into equal thirds, each group would be

scheduled for an average of approximately 56 hours per week

(Tr. 293:5-10). When the City's current scheduling system was

begun many years ago, each firefighter's scheduled shift hours

averaged approximately 56 hours per week over a year's time

(Tr. 293:5-10; Ex. C-53). Rather than simply rotating the

shift groups each third day, each shift group is scheduled in

sequences of one shift on, one shift off, one on, one off, one

on, followed by four shifts off (Tr. 294:2-10; Ex. C-54).

            b. To reduce the average weekly hours for

firefighters on 24-hour shifts, additional 24-hour shifts off

are scheduled for each firefighter throughout the year

(Tr. 295:11-12). To achieve the average 50.923 weekly hours

provided for in the parties' expired agreement, 11 of these

additional shifts off were scheduled for each firefighter

(Tr. 294:12-14). Vacation (paid) and other leaves (paid)

reduce further the average weekly hours (Tr. 294:21, 296:2;

Ex. C-54) . The result is that the average firefighter is

scheduled for just over eight shifts per month (Tr. 296:3-6).

By the time that various leaves are deducted from scheduled

shift hours, the average firefighter has only about 45 hours

per week duty (Ex. C-55, page 63A supra) . Thus, no single

firefighter is on duty for even a third of the 24-hour shifts

scheduled each year.

            c. Although shifts are scheduled on both Saturdays

and Sundays, the shift scheduling pattern presently takes away

any significance these days have on "weekend" days

(Tr. 309:15-25). Essentially, the firefighter's "weekend" is

the minimum of four days off each has between sets of three

scheduled shifts. Although shifts are scheduled on holidays,

the chance of being on duty on a holiday is met by holiday

premium pay (Ex. J-l at §§ 7.1 and 7.4; Table of Issues,

infra). Any given firefighter has less than one chance in

three of actually being on duty on any particular holiday.

            d. Scheduled shift hours (duty hours) cannot,

however, be equated with actual hours of structured work. They

include non-structured hours for standby to be ready for the

stressful structured hours of work. By the 1985 and this

agreement, the parties have limited the period within each

24-hour shift during which the City may assign routine duties

(Ex. J-l, § 19.2). Presently, structured duty hours have been

limited on weekdays to the period from 8:00 a.m. to 4:30 p.m.

(less an hour for lunch); on Saturday or Sunday from 8:00 a.m.

to 12:30 p.m.; and on 11 recognized holidays from 8:00 a.m. to

10:00 am. (Tr. 296:12-21; Ex. J-l at § 19.1). Firefighters

perform certain tasks such as bicycle registration and voter

registration, during the non-structured hours (Ex. J-l at

§ 10.1.2; Section 19.4, above). During these non-structured

hours (sometimes misnamed "leisure hours") , the firefighter is

available for emergency response at any time during his 24-hour

shift. However, on an average, emergency responses during

non-structured portions of the shift took up less than 22 hours

per firefighter per year over the last two year period (Ex. 55;

Tr. 300:3-5). Taking into account both structured duty hours

and emergency responses during the non-structured portion of

the shift, the average firefighters had actual work time of

something less than 685 hours per year. If this work time were

concentrated in 40-hour work weeks, it would amount to just

over 17 work weeks per year. It is recognized that if more

firefighters become medically trained as paramedics so that the

department responds to more medical emergencies, these

emergency response times will rise during structured and

non-structured hours.

            e. The Union's proposals would reduce the average

weekly scheduled hours to 50.6 by adding an additional shift

off to the one allowed by the 1985 agreement (Ex. J-l,

§ 10.1). Its evidence and record does not justify this

reduction. The comparative departments urged by the Union have

an average work week of 51.9 hours greater than the 50.923

proposal by the City and adopted here.

            f. Contrary to a reduction in hours, the record

supports 50.923 hours without change as a more economical

arrangement of time to increase structured duty hours within

the 50.923 hours by reducing non-structured hours. We approve

this concept by changing structured hours to 8:00 a.m. to

5:00 p.m. Monday through Saturday. Structured work hours for

Sunday and New Year's Day, Presidents Day, Memorial Day,

Independence Day, Labor Day, Veterans Day, Thanksgiving and

Christmas shall be from 8:00 a.m. to 12:30 p.m. This change is

supported by the following reasonable circumstances:

             (1) Because of the arrangement of hours the

City has gradually reduced the frequency of a number of safety

programs in order to keep up with training and other

requirements. These include changing the hydrant testing

program from annual to a five-year program (Tr. 306:3-5); the

fire inspection program reduced from annual to bi-annual

(Tr. 306:5-9); all normal work details were suspended in

February 1986 so that pending projects could be completed

(Tr. 306:10-21).

             (2) New federal and state statutes will

require additional training to be done during structured duty

hours (Ex. C-56; Tr. 307:6-308:17). To bring the City's 33

firefighters and three battalion chiefs up to the training

level required will use 26,000 man-hours (Tr. 307:22-25).

             (3) Current limits on Saturday and Sunday work

schedules have prevented the City from taking advantage of free

state-sponsored training which is available on these days only

(Tr. 308:23-309:14).

             (4) Of the 13 comparatives urged by the Union

(Ex. U-3), five have a standard structured work day (8:00 am.

to 5:00 p.m.) (in several cases longer than that worked by the

Richland firefighters) in effect every day (Ex. U-3) . Another

four have a standard structured work day (in most cases longer

than Richland) every day except Saturday and Sunday. Only

three have reduced schedules on holidays (Ex. U-3).

             (5) To accomplish the mission of the

department, it is reasonable for the City to have flexibility

to fairly schedule limited duties outside normal structured

hours. The City's emergency services department is called on

from time to time to provide standby emergency services at

community events, such as the Richland air races and annual

disaster exercises (Ex. C-59). When such activities are

scheduled outside the structured duty hours, the City is

unable, under the expired agreement, to require firefighters to

participate, even though they would be "paid back" with

compensatory, non-structured leisure hours. These limitations

not only preclude the City from participation in special

community events; they also preclude the City from taking

advantage of training opportunities offered outside structured

duty hours. (See, e.g., Exs. C-59, U-67; Tr. 309:3-14.) In

fact, the Union passed a resolution forbidding any member to

volunteer for activities during leisure hours unless a majority

of the membership voted in favor of such volunteering

(Ex. C-57).

             (6) Presently, in order for firefighters to

participate on a voluntary basis in these special activities,

the City must contact the Union, seek a vote of the membership

regarding the specific event, then determine whether any

firefighter wishes to volunteer (Tr. 310:11-19). The City

often receives short notice of special events, the process

itself at times cannot be concluded in time to obtain

volunteers, even if the Union membership votes to permit

volunteering (Tr. 310:20-311:5). Moreover, on a number of

occasions, the Union has precluded its members from

volunteering. For example, the Union membership passed a

motion barring any member from volunteering assistance at a

fire chiefs conference scheduled in the Tri-Cities (Ex. C-58).

             (7) Although failure to participate in the

fire chiefs conference may have had little impact on public

safety, the Union's refusal to permit its members' voluntary

participation has at times left the public without needed

protection. For example, in 1986, the Union refused to permit

members to provide emergency protection at the Richland air

races, as the City had requested (Ex. C-59). Firefighters put

on a demonstration and stood by at the races with a rescue

truck until 12:30 p.m., when their structured duty hours ended

(Tr. 314:1-11. Promptly at 12:30 pm., the firefighters

returned to the station to observe their "leisure" hours,

removing essential fire and emergency medical protection for

the large crowd gathered at a somewhat hazardous community

event (Tr. 313:21-25, 314:9-11). The City's operations chief

was left there single-handed to provide services as best he

could (Tr. 314:15-21). On another occasion, when the City

requested participation in a regional disaster exercise, the

Union voted to take no action on the request, thus precluding

its members from volunteering (Ex. C-59).

             (8) The time spent on such tasks would be

"paid back" with compensatory non-structured time, so this

change would not increase in total structured time. This

change in Article 19 is limited to 18 hours of such activities

per shift per year.

 

J. ARTICLE 21 -- SICK LEAVE

            1.         Union Proposal.

            Union proposes to retain Article 21 as contained in

the 1985 agreement without change.

 

            2.         City Proposal.

            City  proposes extensive modifications to

Article 21. The proposed Article is reproduced herein:

 

            21.1                 Sick Leave for LEOFF I Employees.

            Effective January 1, 1988 permanent,

            full-time LEOFF I employees shall be granted a

            sick leave allowance each calendar year as follows:

 

                        40-hour week employees                   80 hours

                        24-hour shift employees                    72 hours

 

            Sick leave will no longer accumulate or be

            carried over from year to year. If an illness or

            injury requires sick leave beyond that provided

            herein, the employee shall obtain an additional

            required disability leave from the appropriate

            pension/disability board as provided for in

            Chapter 41.26 RCW and applicable provisions of RMC

            2.28.85. Twenty-five percent (25%) of unused sick

            leave accrued by each LEOFF I employee prior to

            January 1, 1988 will be paid for by the employer

            if and when such employee reaches regular service

            retirement with twenty or more years regular

            service.

            21.2                 Sick Leave for LEOFF II Employees.

            Effective January 1, 1988, permanent

            full-time LEOFF II employees shall accrue sick

            leave as follows:

 

                                                Accrual                       Maximum

                                                Rate                            Accrual

 

            40-hr week employees           8.0 hrs/mo       1.056 hrs

            24-hr shift employees            10.18 hrs/mo   1,440 hrs

 

            Twenty-five percent (25%) of unused sick

            leave accrued by each LEOFF II employee will

            be paid for by the employer, up to a maximum

            payout of $1,500.00, if and when such

            employee reaches regular service retirement

            with twenty or more years regular service.

 

***************************************************

pie chart: "Average Shift Firefighter Workyear"

double-click to view image

originally inserted between p63 and p64

***************************************************

 

            21.3                 Advance of Sick Leave for New

                                    Employees.

            New employees will be advanced a sick

            leave allowance equal to that which would be

            accrued in six months at the LEOFF II accrual

            rate. and will begin their regular LEOFF II

            accrual at the end of six months employment.

            An employee whose employment terminates for

            any reason during the first six months must

            repay the Employer for sick leave used in

            excess of the LEOFF II accrual rate for the

            period of actual employment.

            21.4                 Conditions on Use of Sick Leave.

            Use of sick leave will be granted subject

            to the following conditions:

                        a. Employee must report reason for

            absence at least thirty minutes before the

            beginning of each scheduled work day or shift

            for which sick leave is requested.

                        b. At Employer's request, employee must

            submit physician's certificate of nature and

            duration of incapacitating condition and/or

            submit to, at Employer's expense. a nursing

            visit or medical examination to evaluate the

            condition.

            21.5                 Changes in Statutory LEOFF II

                                    Benefits

            If LEOFF II sick leave and/or disability

            benefits are increased by the Washington

            legislature during the term of this

            Agreement, sick leave and disability benefits

            provided by City ordinance and this Agreement

            shall be reduced proportionately.

 

            3.         Decision of Arbiters. (Effective April 1, 1988)

            Article 21 - Sick Leave shall be as follows:

 

            21.1                 Sick Leave for LEOFF I Employees.

            Effective January 1, 1988, permanent,

            full-time LEOFF I employees shall be granted a

            sick leave allowance each calendar year as follows:

 

            40-hour week employees                   80 hours

            24-hour shift employees                    72 hours

 

            Sick leave will no longer accumulate or be

            carried over from year to year. If an illness or

            injury requires sick leave beyond that provided

            herein, the employee shall obtain an additional

            required disability leave from the appropriate

            pension/disability board as provided for in

            Chapter 41.26 RCW and applicable provisions of RMC

            2.28.85. Twenty-five percent (25%) of unused sick

            leave accrued by each LEOFF I employee prior to

            January 1, 1988, will be paid for by the employer

            if and when such employee reaches regular service

            retirement with twenty or more years regular

            service.

            21.1.1              If the employee applies for Disability

            Retirement Benefits or the employer directs the

            employee to take time off because of disability

            and the Disability Board or State does not approve

            the application of statutory benefits, the

            employee shall not lose pay or benefits as a

            result of a denial. If the approval of LEOFF I

            disability leave by the Disability Board or State

            takes more time than 72 hours (three shifts) the

            employer will ensure the employee will not thereby

            lose pay and benefits, present or accrued.

            21.2                 Sick Leave for LEOFF II Employees.

            Effective January 1, 1988, permanent,

            full-time LEOFF II employees shall accrue sick

            leave as follows:

 

                                                                                    Accrual

                                                                                    Rate

                        40-hr week employees                       8.0 hrs/mo

                        24-hr shift employees                       10.18 hrs/mo

 

            Twenty-five percent (25%) of unused sick leave

            accrued by each LEOFF II employee will be paid for

            by the employer, up to a maximum payout of

            $1,500.00, if and when such employee reaches

            regular service retirement with twenty or more

            years' regular service.

            21.3                 Advance of Sick Leave for New Employees.

            New employees will be advanced a sick leave

            allowance equal to that which would be accrued in

            six months at the LEOFF II accrual rate, and will

            begin their regular LEOFF II accrual at the end of

            six months employment. An employee whose

            employment terminates for any reason during the

            first six months must repay the Employer for sick

            leave used in excess of the LEOFF II accrual rate

            for the period of actual employment.

            21.4                 Changes in Statutory LEOFF II Benefits.

            If LEOFF II sick leave and/or disability

            benefits are increased by the Washington

            legislature during the term of this Agreement.

            sick leave and disability benefits provided by

            City ordinance and this Agreement shall be reduced

            proportionately.

 

            4.         Discussion.

            a. LEOFF I employees are provided disability

leave by state statute in any case of illness or

disability (Tr. 332:23-333; RCW 41.26). Thus, they have

no need for paid sick leave other than to cover (1) the

period before leave is approved by the state or (2) where

the employer directs them to take such leave and the state

denies leave approval. Accrued sick leave for LEOFF I

firefighters affects the buy-back to which they are

entitled upon retirement (Ex. J-l, § 24.1). The City

proposal retains this feature for all such leave accrued

by them before January 1, 1988. Since the 1985 agreement

recognized that all LEOFF I employees were at the maximum

sick leave accrual for these employees (Ex. U-3) , the

change will not diminish this benefit for any firefighter.

            b. Average weekly duty hours for the

firefighters have declined from 72 hours per week in the

1950's to the current 50.923 hours per week (Ex. C-53) but

since sick leaves were computed by "24 hour shifts"

instead of "hours" the sick leave provisions have resulted

in an increase in sick leave in proportion to work hours

(EX. C-60). Other employees of the fire department and of

the City who work 40 hours per week accrue one eight hour

shift of sick leave a month.

            The relative value of available sick time has

remained constant for 40 hour employees. when firefighter

sick leave accrual is combined with shift scheduling, the

result is that the firefighter earns with one month's sick

leave accrual more time off to recover from illness than

does the 40 hour a week employee (Tr. 332:12-17). In one

year, a 40 hour employee accrues 2.4 weeks total sick

leave, while a shift firefighter accrues 5.65 weeks

(Ex. C-60) . Comparing "shift" of 24 hours on one hand

with "shift" of 8 hours on the other, without special

reason, is fundamentally and logically unsound.

            c. Ordinarily, in industrial relations,

"leave," when granted, is absence from work without the

imposition of penalties that might otherwise be suffered

for failing to report when scheduled for work. (Elkouri

and Elkouri, p. 704, with citations.) The allowance is

generally based on time expressed in hours by allowing

hours of duty to equal a proportionate number of hours of

sick leave, vacation leave, maternity leave, etc. More

hours of work performed produces more hours of leave.

The evidence before us shows only the element of

past practice for varying from the hourly standard. This

is not a reason for continuing a fundamentally unequal

relationship of "shift" to "shift" except as to sick leave

accrued up to January 1, 1988. The fair relationship of

hours should be the basis for allowance in the future to

make all employees of the department and the other City

departments comparable. Thus, the City's request

for fire department personnel to have a maximum accrual is

rejected.

            d. The 1985 agreement provides new employees

with advance sick leave accrual (Ex. J-1, § 21.2.2). This

feature is retained but making it proportional to other

employees during the same time period.

            e. Examination of the selected comparables

show monthly accruals for Richland at 10.18 hours per

month and compares favorably with Bremerton at 10.5 hours,

Longview at 10.25 hours, and Redmond at 12 hours, the

comparables that have such provisions.

 

K. ARTICLE 22 -- PAID LEAVE

            1.         Union proposal.

            a. Union proposes to amend Section 22.1 as follows:

 

            22.1                 Vacation Leave. Permanent employee(s)

            shall accrue vacation time as set forth in this

            Article, based on length of service with the

            employer. An employee shall not be eligible to

            use vacation time accrued until he has worked for

            the employer for a minimum of six (6) calendar

            months.

 

            b. Sections 22.1.1 and 22.1.2 shall be as

contained in the 1985 agreement without change.

            c. Union proposes to amend Sections 22.2 and

22.2.1 as follows:

 

            22.2                 Vacation Accumulation shall be limited

            to 408 hours, including vacation bonus days, for

            all employees. Employees working a 40 hour base

            week shall be limited to a maximum vacation usage

            of 28 days (shifts) in any calendar year unless

            approval is granted, in writing, prior to the

            usage, by the Operations Chief or above.

 

            d. Sections 22.3, 22.4, 22.4.1, 22.5, 22.5.1,

22.5.2, and 22.5.3 shall be as contained in the 1985 agreement

without change. [NOTE: Sections 22.4 - 22.5.3 were numbered

22.5 - 22.6.3 respectively in the 1985 agreement in which there

was no section 22.4 by omission.]

 

            2.         City proposal.

            a. Section 22.1 shall be as contained in the 1985

agreement without change.

            b. City proposes to amend following Sections:

 

            22.1.1              Employee(s) working a 40-hour base

            week shall accrue vacation time on the following

            basis:

 

                                                            Monthly Rate of Vacation

            Length of Service                   Credit in Hours

                        0 through 9 years       10

                        10 through 15 years   12

                        16 through 20 years   14

                        Over 20 years                        16

 

            22.1.2              Employee(s) working 24-hour shifts

            shall accrue vacation time proportional to that of

            40-hour week employees, based on average weekly

            hours of shift personnel i.e., presently 50.923

            hours per week. At that rate, vacation time for

            shift employees is as follows:

 

                                                            Monthly Rate of Vacation

            Length of Service                   Credit in Hours

                        1 through 9 years       12.7306

                        10 through 15 years   15.2767

                        16 through 20 years   17.8229

                        Over 20 years                        20.3690

 

            If average weekly hours of shift personnel are

            reduced their vacation leave accrual would be

            reduced to maintain proportionality to 40-hour

            week employees.

            22.2                 Vacation Accumulation.

            22.2.1              For employee(s) working a 40-hour base

            week, maximum vacation accrual shall not exceed 28

            days (224 hours) , including perfect attendance

            vacation bonus days.

 

            c. City proposes the addition of new

Section 22.2.2 as follows:

 

            22.2.2              For employee(s) working 24-hour

            shifts, the maximum vacation accrual shall be

            proportional to that of 40-hour week employees

            based on average weekly hours of shift personnel,

            i.e., presently 50.923 hours per week. On that

            schedule, maximum vacation accrual for shift

            employees shall not exceed 285.1679 hours,

            including vacation bonus days. If average weekly

            hours of shift personnel are reduced, their

            vacation leave accrual would be reduced to

            maintain proportionality to 40-hour week employees.

 

            d. City proposes to amend Sections 22.3, 22.4

and 22.5 using above Union numbering scheme for sections

(different than 1985 agreement) as in [note] as follows:

 

            22.3                 Vacation Bonus Day.

            Permanent full-time employee(s) working a

            40-hour base week and with one continuous year of

            service shall be eligible to earn one vacation

            bonus day (8 hours) after non-use of sick leave

            and leave without pay collectively; provided that

            permanent full-time employee(s) working more than a

            40-hour base week shall be eligible to earn a

            proportionate bonus amount.

            22.4                 Personal Business Leave.

            22.4.1              Effective January 1, 1988, Personal

            Business Leave shall not apply.

            22.5                 Family Leave.

            22.5.1              Permanent full-time employee(s) working

            a 40-hour base week shall be eligible for Family

            Leave as provided in RMC 2.28.860 and subject to

            the provisions of Personnel Policy #17; provided

            that employees working more than a 40-hour base

            week may be granted a proportionate amount of

            leave, and subject to the same provisions.

 

            3.         Decision of Arbiters. (Effective April 1, 1988,

except para. 22.2)

            Article 22 - Paid Leaves shall be as follows:

 

            22.1                 Vacation Leave.

            Permanent full-time employee(s) shall accrue

            vacation time as set forth in the Article, based

            on continuous length of service with the

            employer. An employee shall not be eligible to

            use vacation time accrued until he/she shall have

            worked for the Employer a minimum of six (6)

            calendar months.

            22.1.1              Employee(s) working a 40-hour base

            week shall accrue vacation time on the following

            basis:

 

                                                            Monthly Rate of Vacation

            Length of Service                   Credit in Hours

                        0 through 9 years       10

                        10 through 15 years   12

                        16 through 20 years   14

                        Over 20 years                        16

 

            22.1.2              Employee(s) working 24-hour shifts

            shall accrue vacation time proportional to that of

            40-hour week employees, based on average weekly

            hours of shift personnel, i.e., presently 50.923

            hours per week. At that rate, vacation time for

            shift employees is as follows:

 

                                                            Monthly Rate of Vacation

            Length of Service                   Credit in Hours

                        1 through 9 years       14

                        10 through 15 years   16

                        16 through 20 years   19

                        Over 20 years                        21

 

            If average weekly hours of shift personnel are reduced.

            their vacation leave accrual would be reduced to

            maintain proportionality to 40-hour week employees.

            22.2                 Vacation Accumulation. (Effective

            December 31, 1988)

            22.2.1              For  employee(s) working a 40-hour base

            week, maximum vacation accrual shall not exceed 28 days

            (224  hours), including perfect attendance vacation

            bonus days.

            22.2.2              For employee(s) working 24-hour shifts, the

            maximum vacation accrual shall be proportional to that

            of 40-hour week employees based on average weekly hours

            of shift personnel, i.e., presently 50.923 hours per

            week. On that schedule, maximum vacation accrual for

            shift employees shall not exceed 285.1679 hours,

            including vacation bonus days.

            22.3                 Vacation Bonus Day.

            Permanent full-time employee(s) working a 40-hour

            base week and with one continuous year of service shall

            be eligible to earn one vacation bonus day (8 hours)

            after non-use of sick leave and leave without pay

            collectively. Permanent full-time employee(s) working

            firefighter (24-hour) shifts who have completed one

            continuous year of service shall be eligible to earn

            one (1) vacation bonus firefighter shift (24 hours)

            after non-use of sick leave and leave without pay

            collectively.

            22.4                 Personal Business Leave.

            22.4.1              Effective January 1, 1988, Personal

            Business Leave shall not apply.

            22.5                 Family Leave.

            22.5.1              Permanent full-time employee(s) working a

            40-hour base week shall be eligible for Family Leave as

            provided in RMC 2.28.860 and subject to the provisions

            of Personnel Policy #17; provided that  employees

            working more than a 40-hour base week may be granted a

            proportionate amount of leave, and subject to the same

            provisions.

 

            4.         Discussion.

            a. 22.1 - Vacation Leave is changed as proposed by

the Union in accordance with past practice (Tr. 390:1-15;

Ex. J-1.)

            b. 22.1.1, 22.1.2 - Vacation Accumulation is

mainly changed as proposed by the City for the proportionality

reasons discussed in Article 21 - Sick Leave, pp. 66-67,

above. We also add hours to compensate for loss of personal

business leave.

            c. 22.3 - Vacation Bonus Day amends both Union and

City proposals by giving 40-hour per week employees one

eight-hour shift vacation bonus day for non-use of sick leave

and leave without pay collectively, and by giving one 24-hour

shift as a vacation bonus to 24-hour shift employees.

             (1) The net result of this is to increase the

vacation bonus amount as to the 24-hour shift employees as to a

more reasonable amount than is proposed by the City.

             (2) The elimination of vacation bonus days for

non-use of personal business leave recognizes the elimination

of personal business leave for firefighters and all other

employees.

             (3) The totality of this Article shows a total

reduction from 1985 contract levels from a total of straight

vacation time and potential vacation bonus days. For example,

one class of 24 hour firefighters is reduced from 216 total

vacation hours to 176.76 hours. The City proposal would reduce

this 176.76 hours to 162.95 hours using the proportionality

concept.

            d. 22.4 - Personal Business Leave is eliminated in

conformance with the action of the City in eliminating it for

all other employees (Tr. 383:8-22). There is no net loss to

the firefighters because they receive more vacation time at the

end of the year than others are able to earn (Tr. 384:1-10;

Ex. C-63, Ex. C-64). Firefighters on a shift basis have an

opportunity to do their family business on their own off-duty

time between shifts, whereas 40-hour per week employees do

not. This change is less onerous for the firefighters than the

other City employees since firefighters have business days off

work free to do personal business.

            e. 22.5 - Family Leave is changed to conform to

other employees of the City as provided in RMC 2.28.260 and

Personnel Policy #17, thus making firefighters treated the

same, there being no reason shown for a variance

(Tr. 385:18-25; Ex. C-65).

            f. Comparative data show no convincing factor

persuasive in either direction on these issues (Ex. U-3).

 

L. ARTICLE 23 -- LEAVE CONVERSION

 

            1.         Union Proposal.

 

            23.1                 When employees transfer from 24-hour

            shifts to 40-hour weeks (or vice versa) leave

            accruals shall be converted as follows:

            23.1.1              Personal Business and Family Leave

            hours shall be divided by three (3) when going to

            40-hour weeks and multiplied by three (3) when

            going to 24-hour shifts.

            23.1.2              Sick Leave and Vacation accruals shall

            be converted to a dollar amount at the employee's

            rate of pay at the time of the transfer and then

            shall be converted to accrued hours at the

            employee's new position's pay. The following

            method will be used for the conversions:

                        1) Figure the employee's hourly rate of pay

                        in both the old and the new positions as

                        follows: monthly rate of pay X 12 months

                        divided by 52 weeks divided by the average

                        number of hours worked per week in that

                        position.

                        2) Multiply the employee's old leave accruals

                        by his old hourly rate of pay and then divide

                        that amount by the employee's new hourly rate

                        of pay. The result is the number of hours

                        accrual the employee is to be credited upon

                        his transfer.

            23.1.2.1                       If the transfer involves a promotion

            or a demotion the conversion listed in 23.1.2

            shall be made using pay scales of equal rank;

            i.e., for a Fire Fighter promoted into the Fire

            Inspectors position, he would first be promoted to

            lieutenant and then the conversions would be made.

 

            2.         City Proposal.

 

            23.1                 Leave Conversion for Employees

            Transferring from Shift to Days or Vice Versa

            When employee(s) working day shift (a 40-hour

            base week) transfer to 24-hour shifts (a base week

            of over 40 hours) or vice versa, accrued leaves

            shall be converted to a proportionate amount,

            provided, that maximum accruals shall not exceed

            maximum leave accrual limits set forth in this

            Agreement.

 

            2.         Decision of Arbiters. (Effective April 1, 1988)

            Article 23 -- Leave Conversion shall be:

 

            23.1                 Leave Conversion for Employees

            Transferring From Shift to Days, or Vice Versa.

            When employee(s) working day shift (a 40-hour

            base week) transfer to 24-hour shifts (a base week

            of over 40 hours), or vice versa, accrued leaves

            shall be converted to a proportionate amount,

            provided, that maximum accruals shall not exceed

            maximum leave accrual limits set forth in this

            Agreement.

 

            4.         Discussion.

            a. This proposal provides a simple formula for

conversion of accrued leaves upon transfer. It results from

the clauses adopted in Articles 21 and 22 based on

proportionality as the most reasonable, mathematically simple

solution of using hours as a common base.

            b. Comparable departments disclose that only three

(Auburn, Bremerton and Kent) had any formula for leave

conversion (Ex. C-66). These vary one from the other but each

recognizes the ratios between 40-hour week and shift schedule.

            c. The Union proposal is more difficult to apply.

It results in substantial increases above current maximum

vacation accrual and the change of status also gives the

transfer higher pay plus an extra week of vacations (Ex. J-l,

App. A; Ex. U-31; Tr. 395:19-398:22).

 

M. ARTICLE 24 -- OVERTIME PAY

 

            1.         Union Proposal.

            a. Section 24.1 shall be as contained in the 1985

agreement without change.

            b. Union proposes the addition of Section 24.2, as

follows:

 

            24.2                 The formula and rates used to determine

            the regular hourly rate of pay for FLSA and

            off-duty medical training as provided by this

            Agreement shall be attached in Appendix "C" and by

            this reference incorporated herein.

 

            2.         City Proposal.

            a. City proposes to amend Section 24.1 as follows:

 

            24.1                 All overtime work shall be compensated

            at 1-1/2 times the regular hourly rate of pay.

            except as provided in Section 24.2.

 

            b. City proposes the addition of Section 24.2 as

follows:

 

            24.2                 When mutually agreed, the Employer may

            grant day shift employees (40 hour per week

            workers) compensatory time off in lieu of overtime

            pay. Such compensatory time shall be granted at

            1-1/2 times overtime hours worked and shall be

            scheduled for use at a time which is mutually

            agreeable to the Employer and employee. In no

            event shall compensatory time accrual exceed 200

            hours; and compensatory time shall either be used,

            or overtime hours be paid at 1-1/2 times the

            regular hourly rate of pay within 12 months of

            when the overtime was performed.

 

            3.         Decision of Arbiters. (Effective January 1, 1988)

            Article 24 -- Overtime Pay shall be as follows:

 

            24.1                 All overtime work for 24-hour shift

            employees shall be compensated at 1.75 times the

            regular hourly rate of pay, except as provided in

            Section 24.1.1.

            24.1.1              When mutually agreed, the Employer may

            grant day shift employees (40 hour per week

            workers) compensatory time off in lieu of overtime

            pay. Such compensatory time shall be granted at

            1-1/2 times overtime hours worked and shall be

            scheduled for use at a time which is mutually

            agreeable to the Employer and employee. In no

            event shall compensatory time accrual exceed 200

            hours; and compensatory time shall either be used,

            or overtime hours be paid at 1-1/2 times the

            regular hourly rate of pay, within 12 months of

            when the overtime was performed.

 

            4.         Discussion.

            a. The Union's proposal would continue the present

(1985) practice of paying overtime pay at a rate which assumes

that the total compensation was paid for a 40-hour week

(Tr. 406:2-8). This basis was established as the result of

1985 arbitration award (Tr. 409:19-21; Ex. U-47). Professor

Peck observed:

 

                        Firefighter 56 hour week has been established and

            continued in large part in recognition that a

            substantial part of that time, presumably 16 hours a

            week, is spent in repose or sleep.

                        Thus, the firefighters' active work time is equal

            to that of a policeman. For this reason, the

            firefighter would seem to be entitled to equal

            treatment with policemen insofar as the rate of pay

            for overtime work is concerned.

(Ex. U-47 at 17)

            The evidence before us shows that a firefighter's

structured work hours are far fewer than 40 per week

(Exs. C-54; C-55). The average firefighter is now scheduled

for slightly over eight shifts a month and puts in only seven

structured work hours per weekday shift (less on weekends).

Time devoted to emergency calls during non-structured hours

amounts to less than two hours per month on average (Ex. C-55,

Incl. 62A herein). Thus, unlike a police officer, a

firefighter presently does not put in 40 hours of structured

work per week. In a typical rotation, a firefighter would work

approximately three weeks before having 40 hours of structured

duty time (Tr. 407:1-20). This award changes the present

situation by increasing the firefighters' structured work week

hours daily and on weekends so that weekdays increase one-half

(1/2) hour (from 4:30 pm. to 5:00 pm.), Saturday increases

four and one-half (4-1/2) hours (from 12:30 p.m. to 5:00 p.m.),

and Sundays and holidays increase two and one-half (2-1/2)

hours (from 10:00 a.m. to 12:30 p.m.). Under this award,

firefighters reach 40 hours of structured time in fewer shifts.

            b. City #69 computes the Overtime Rate Comparison

in the following terms (note that the 40 hour rate is nearly

double the actual rate):

 

Overtime Rate Comparison

 

                                                                                                         Proposed

                                                                        Overtime                 Overtime

                                             Actual                Rate Based             Rate Based

                                             Regular              on Artificial              On Actual

                                             Hourly                40-Hour Week        Regular

                                             Rate                   Base                         Hourly Rate

Captain (F)                          $11.77                $22.47                      $17.65

Lieutenant (F)                     10.90                  20.81                        16.35

Firefighter (F)                      10.09                  19.26                        15.13

Firefighter (E)                     9.84                    18.79                        14.76

Firefighter (C)                     9.38                    17.91                        14.07

 

            Actual Regular Hourly Rate Monthly wage x 12 months ÷ 52

            weeks ÷ 50.923 hours.

 

            Overtime Rate Based on Artificial 40 Hour Week Base =

            Monthly wage X 12 months ÷ 52 weeks ÷ 40 hours X 1.5.

 

            Proposed Overtime Rate = Monthly wage X 12 months ÷ 52

            34 weeks ÷ 50.923 X 1.5.

 

            c. Both the Union and City surveys demonstrate

that comparative departments use the actual hourly pay rate

rather than a 40 hour week except Aberdeen, Bothell, Kennewick

and Edmonds. It is persuasive that the use of a 40-hour work

base rests on artificiality. A more logical, easily computed

simple system is to base overtime rate upon an actual 50.923

hours of work per week for time worked over a scheduled work

day, work week or given pay period described in RMC 2.28.520

noted above.

            d. It appears reasonable to use the actual real

rate rather than one based on an unreal premise such as the 40

hour week they don't work. This meets Fair Labor Standards Act

requirements.

            e. The JE#2 system of computation on a 40-hour

work base has resulted in a pay system demonstrated in

paragraph b above being in place since 1974 which is

substantial past practice, and it would be unreasonable to

reduce the firefighters' overtime pay received. However, the

other changes in their work hours and pay by increases and

impositions make it reasonable to figure the overtime at 1.75

times actual regular hourly rate.

 

N. ARTICLE 25 -- INSURANCE BENEFITS

See Paragraph II.D, Agreed Before Hearing, page 19.

 

O. ARTICLE 27 -- BASIS FOR NEGOTIATION

            1.         Union proposal.

            a. Union proposes that this Article is a

permissive subject of bargaining and should be deleted from the

agreement.

 

            2.         City Proposal.

            a. Article 27 should be as contained in the 1985

agreement without change, as follows:

 

            27.1                 The Employer and the Union will develop and

            document respective positions at the bargaining table

            as reasonable and responsive to:

            27.1.1              The financial capabilities of the Employer.

            27.1.2              Comparison of wages, hours and working

            conditions of employment of firefighter personnel

            involved in the proceedings with the wages,  hours and

            conditions of employment of like Employers of similar

            size on the West Coast of the United States.

            27.1.3              The consumer price index as published

            bi-monthly by the Bureau of Labor Statistics for the

            Seattle Metropolitan Area to reflect a measurement of

            the changes in the cost of living.

            27.1.4              Joint consideration of salaries and

            benefits based upon advantages to both the Employer and

            Union.

            27.1.5              Changes in productivity of the Fire and

            Emergency Services Department.

 

            3.         Decision of Arbiters.

            Article 27 -- Basis for Negotiations shall be

eliminated from the labor agreement.

            4.         Discussion.

            a. Since this issue has been certified to this

panel by PERC and not withdrawn by subsequent directions to us

we give it full consideration.

            b. The Union argument that the clause is "a

permissive subject" not mandated for negotiations or for

bargaining by statute 41.56 is not persuasive. Every provision

proposed is relevant and would lead to influencing wages, hours

and working conditions. It is better practice to assume all

matters are included in the process of bargaining, subject to

bargaining where basic standards are mutually presented as a

part of the process rather than being pre-ordained. (Ex. U-3;

Tr. 417-24).

            c. However, this article doesn't accomplish its

purpose of setting standards except as to designating the

"Bureau of Labor Statistics for the Seattle Area to Reflect the

Cost of Living" and § 27.1.2 concerning comparisons. The

expression of the entire article otherwise is only to "develop"

and "document" which doesn't bind either party to an

enforceable position as a base of negotiations.

            d. The proposals by the City were to assist the

parties forming a basis to negotiate successor agreements

(Tr. 423:4-10). But legislation in RCW 41.56 has announced

different standards than contained in this former article and,

even then, those standards are guidelines for interest

arbiters, but not necessarily for the parties during bargaining.

            e. The parties in this arbitration and presumably

in their negotiations, reaching an impasse here, have hardly

relied at all on 27.1.3 concerning the consumer price index and

27.1.5 as to "productivity" in their proposals to this panel.

There does not seem to be any utility in Article 27 to warrant

its extension. Free bargaining is preferable.

 

P. ARTICLE 28 -- TERMS OF AGREEMENT

 

            Stipulated by the parties to PERC to be January 1 to

December 31, 1986; January 1 to December 31, 1987; and

January 1 to December 31, 1988 (Ex. J-2).

 

Q. APPENDIX A -- SALARY SCHEDULE

 

            1.         Union Proposal.

            a. Union proposes to amend Appendix A as follows:

 

                        Appendix "A" shall consist of three salary

            schedules patterned after the 1985 Agreement and

            reflecting the following pay increases:

                        1986 Schedule:

                        Beginning January 1, 1986, all salaries shall

            be increased to seven percent (7%) above the 1985

            Agreement rates.

                        1987 Schedule:

                        Beginning January 1, 1987, all salaries shall

            be increased a minimum of seven percent (7%) above

            the 1986 rates. Fire Lieutenants shall be paid at

            least 109% of the corresponding Fire Fighter rate;

            i.e., "E" step FF pay x 1.09 = "E" step Lt. pay.

            Fire Captains shall be paid at least 109% of the

            corresponding Fire Lieutenants rate. Salaries for

            those classifications working 40-hours-per-week

            (day shift), shall be increased to and maintained

            at 106% of the corresponding suppression officer

            pay.

                        1988 Schedule:

                        Beginning January 1, 1988, all salaries shall

            be increased a minimum of four percent (4%) above

            the 1987 rates. Fire Lieutenants shall be paid at

            lease 110% of the corresponding Fire Fighter

            rate. Fire Captains shall be paid at least 110%

            of the corresponding Fire Lieutenants rate.

            Salaries for those classifications working

            40-hours-per-week (day shift), shall be maintained

            at 106% of the corresponding suppression officers

            pay. Fire Paramedic positions shall be added to

            the salary schedule at the rate outlined in

            Appendix "B".

 

            2.         City Proposal.

            a. City proposes to amend Appendix "A" as follows:

(It is noted that the City proposal includes the addition of

portions of Appendix "B" within its body because of the City

position that all firefighters will become medically trained,

and any EMT and paramedic pay shall be included in the base

rate) (City Brief, pp. 71-72, 76-77, 87-88)

 

                        A. Include current EMT pay in Firefighter

            base monthly rate since all firefighters will be

            EMT certified.

                        B. Establish the following pay for the listed

            new positions effective the first of the month

            following contract ratification.

 

                                                Maximum No.            Pay

                                                of                     (create new

            Position                       Incumbents     base)

 

            Firefighter/EMT                    All FF              FF Base plus

                                                required to      $35 added in

                                                maintain EMT

            Lieutenant/EMT                    No maximum  LT Base plus

                                                                        $35 added in

            Captain/EMT             No maximum  Capt. Base

                                                                        Plus $35

                                                                        added in

            Firefighter/P1              12                    FF Base plus

                                                (FF/P)1,2,3         $150 added in

            Firefighter/P2                                      FF Base plus

                                                                        $175 added in

            Firefighter/P3                                      Base plus

                                                                        $200 added in

            Lieutenant/P               3                      LT Base plus

                                                                        $150 added in

            Captain/P                    1                      CAPT Base

                                                                        plus $150

                                                                        added in

 

                        (Firefighter/P1 is 0-2 years of service in the Richland

            Fire Department as a certified paramedic.)

                        (Firefighter/P2 is the 3rd and 4th years of service in

            the Richland Fire Department as a certified paramedic.)

                        (Firefighter/P3 is the 5th year of service in the

            Richland Fire Department as a certified paramedic.)

                        The effective date of medical position pays shall be the

            date the Department receives the appropriate written

            certification.

                        Position pays include reimbursement for meetings and

            recertification time necessary to maintain said

            certifications.

 

                        C. Increase base wages listed as follows:

 

                        1986 - No change;

                        1/1/87 - 2% across the board;

                        1/1/88 - 3% across the board.

            3.         Decision of Arbiters.

            Appendix A -- Salaries shall be amended as follows:

 

            1.         Appendix "A" shall consist of three salary

            schedules patterned after the 1985 Agreement

            and reflecting the following pay increases:

                        a. 1986 Schedule:

            Beginning January 1, 1986, all

            salaries shall be increased to three

            percent (3%) above the 1985 Agreement

            rates.

                        b. 1987 Schedule:

            Beginning January 1, 1987, all

            salaries shall be increased a minimum of

            four percent (4%) above the 1986 rates.

            Fire lieutenants shall be paid at least

            109% of the corresponding Fire Fighter

            rate; i.e., "E" step FF pay X 1.09 = "E"

            step Lt. pay. Fire Captains shall be paid

            at least 109% of the corresponding Fire

            Lieutenants rate. Salaries for those

            classifications working 40-hours-per-week

            (day shift), shall be increased to and

            maintained at 106% of the corresponding

            suppression officer pay.

                        c. 1988 Schedule:

            Beginning January 1, 1988, all

            salaries shall be increased a minimum of

            four and two-tenths percent (4.2%) above

            the 1987 rates. Fire Lieutenants shall be

            paid at least 112% of the corresponding

            Fire Fighter rate. Fire Captains shall be

            paid at least 107% of the corresponding

            Fire Lieutenants rate. Salaries for those

            classifications working 40-hours-per-week

            (day shift), shall be maintained at 107%

            of the corresponding suppression officers

            pay. Fire paramedic positions shall be

            added to the salary schedule at the rate

            outlined in Appendix "B."

                         (1) Include current EMT pay in

            base monthly rate, since all

            firefighters will be EMT certified.

                         (2) Establish the following pay for

            the listed new positions effective the

            first of the month following effective

            date of this award.

 

                                                Maximum No.            Pay

                                                of                     (create new

            Position                       Incumbents     base)

 

            Firefighter/EMT                    All FF              FF Base plus

                                                required to      $35 added in

                                                maintain EMT

            Lieutenant/EMT                    No maximum  LT Base plus

                                                                        $35 added in

            Captain/EMT             No maximum  Capt. Base

                                                                        Plus $35

                                                                        added in

            Firefighter/P1              12                    FF Base plus

                                                (FF/P)1,2,3         $150 added in

            Firefighter/P2                                      FF Base plus

                                                                        $175 added in

            Firefighter/P3                                      Base plus

                                                                        $200 added in

            Lieutenant/P               3                      LT Base plus

                                                                        $150 added in

            Captain/P                    1                      CAPT Base

                                                                        plus $150

                                                                        added in

 

                        (Firefighter/P1 is 0-2 years of service in the Richland

            Fire Department as a certified paramedic.)

                        (Firefighter/P2 is the 3rd and 4th years of service in

            the Richland Fire Department as a certified paramedic.)

                        (Firefighter/P3 is the 5th year of service in the

            Richland Fire Department as a certified paramedic.)

 

                         (3) The effective date of medical

            position pays shall be the date the

            Department receives the appropriate

            written certification.

                         (4) Position pays include

            reimbursement for meetings and

            recertification time necessary to maintain

            said certifications.

 

            4.         Discussion.

            a. Comparators selected by both the Union, the

City and this Panel (Bremerton, Kennewick, Longview, Olympia,

Redmond and Walla Walla) combined with other demographic

evidence demonstrates as to salaries the need for a substantial

increase to come up to average:

             (1) Top grade firefighters at Richland are

$258 below the average; Lieutenants are $384 below average, and

Captains (with fewer and less reliable comparables) are $391

below average. (Ex. U-3) Computation follows:

            City                 Top FF                        LTs                 Capts

            Redmond        2,591                           2,992               None

            Olympia          2,463                           2,900               3,150

            Bremerton      2,489                           2,731               None

            Longview        2,426                           2,681               None

            Kennewick      2,501                           2,689               2,935

            Walla Walla    2,254                           2,741               2,878

 

            Total               14,904                         16,734             8,963

            Average          2,484                           2,789               2,988

            Richland         2,226                           2,405               2,597

            Above

            Richland         258                              384                  391

 

             (2) "Historical" salary comparisons between

Richland and Kennewick show that between 1984 and 1987 the gap

as to top grade firefighters changed from $2,120 to $2,226 for

Richland and $2,161 to $2,359 for Kennewick. They also show

Kennewick 1987 increased from $2,359 to $2,501 in furthering

the comparative gap. (Ex. U-3). There is no evidence before

us to justify this great a difference for neighbors.

             (3) Some of the suggested Union comparators

involve the influence of larger metropolitan centers of which

they are a part such as Snohomish, Edmonds, etc.

            b. The City's Current financial circumstances are

an inhibiting factor to be weighed and applied to any

increases. We note:

             (1) Richland is a single-industry town

dependent in many respects on the Hanford Reservation. Both

the city's population and municipal services grew during the

1970's (Tr. 624:9-15). In the 1980's, that situation changed

in some respects. Development of nuclear powered electrical

generators by the Washington Public Power Supply System was

curtailed (Tr. 624:17-24). Federal activity relative to the

N-reactor dropped off significantly (Tr. 624:24-625:l).

             (2) The population has dropped, city revenues

have diminished and there have been cutbacks in city personnel

and municipal services (Tr. 625:2-21).

             (3) The tax base is especially hard hit by

economic turndowns because the share of the retail sales tax,

even though equalized by statute, is less productive than in

Kennewick, where most persons Shop at retail shopping centers.

             (4) The population and valuation for tax

purposes presently indicate no different relationship that

shows any distress situation for Richland.

             (5) The evidence contains some news articles

and testimony predicting the future in either calamitous or

rosy terms. In this regard, we are able to look at 1985, 1986

and a part of 1987 actually shown in this evidence. It cannot

be said that the calamity has happened yet, but may still come

after most of 1988. The city finances appear to have been

budgeted to the known requirements with firefighters at 1985

contract rates. It is proper to surmise that if the

fire fighters had received a raise in 1986 and 1987, the city

would have met the obligations by rearranging other

expenditures or increasing revenues.

             (6) The CPI rate for 1986 and 1987, although

incomplete, in the evidence tends to be in support of the

City's position of only a 5% raise. (Ex. D-97).

            c. The productivity of the firefighters has not

been questioned. Our comparators show only 8% less number of

calls without disclosing the variables of matters of time,

distance and efficiency or seriousness. The value of the

Paramedical service need not be, but is, documented to be of

great importance to the community sense of well-being. It is

also a premise that health, safety, law and order furnished by

police, firefighters and medical services take a priority

position among the services needed to be provided by a

government in its budget. There is no showing there is any

waste in money or personnel in the fire department.

            d. It appears, upon weighing these and other

factors together, that it is only reasonable and equitable to

make the salaries at least near the average of those bargained

at other comparable locations. This is done by a fair

progression from 1985 through 1986/1987, and 1988. The

progressive yearly salary increases awarded are to bring the

Richland firefighter pay levels up to the average of

comparative departments. This does not yet reach the

determination in the Hay Appeal of a necessary 15% differential

(Ex U-3). The increase awarded to Lieutenants and Captains

accomplishes the same purpose.

            e. The lowest increase in 1986 recognizes the

condition of the economy and the fact that other city employees

received no cost of living raises. This increase of 3% is to

begin the rise for firefighters to the average of comparable

departments. Such recognition plus cost of living justifies

1987 -- four per cent, and 1988 -- four and two-tenths percent.

 

APPENDIX B -- PREMIUM PAY SCHEDULE

 

            1.         Union Proposal

            a. Union proposes to amend Appendix "B" as

follows, effective January 1, 1988:

 

            1.                     Employees in the Firefighter or Lieutenant

            classifications who hold a valid Washington State

            EMT Certification will be paid $35.00 per month in

            addition to their base pay for each Complete

            calendar month they maintain said certification.

            1.1                   Employees in the Firefighter

            classification hired on or after the effective

            date of this Agreement who are not EMT or ALS

            Certified shall be required to enroll in the first

            EMT Certification course following the completion

            of the Firefighter's initial four (4) months of

            service in the Department, and will be required to

            obtain EMT Certification within one (1) calendar

            year from the date that the Firefighter entered

            the program. Recertification shall be voluntary.

            2.                     Firefighters and Lieutenants holding I.V.

            and/or Airway Technician Certifications shall be

            paid $20.00 per month per certification,

            accumulative with their EMT pay, and such pay

            shall be issued bi-weekly. A maximum of 12

            employees having I.V., Airway, or combinations of

            both, shall be paid under this section.

            3.                     Up to 12 Firefighters and Lieutenants

            certified as paramedics may receive pay as "Fire

            Paramedics" as provided below:

            3.1                   The Fire Paramedic positions shall be

            paid positions only, and shall not be separate

            classified service tested positions and shall be

            filled by employees of the Firefighter and/or

            Lieutenant ranks.

            3.2                   The positions shall be filled on a first

            certified basis until the maximum allowed

            positions have been filled. Ties in certification

            dates will be decided by Department seniority with

            the personnel having the most seniority receiving

            the appointment to the position.

            3.3                   Fire Paramedics who do not recertify or

            who have their certification revoked shall return

            to their respective fire suppression position but

            shall not cease to draw Fire Paramedic pay,

            beginning with the pay period in which the

            certification is no longer valid.

            3.4                   If the number of Fire Paramedics in the

            Department drops to six (6) or less, scheduled

            leave for the Fire Paramedics may be restricted to

            allow only one off at a time; provided; the

            department will maintain one Fire Paramedic on

            duty at all times when possible, utilizing

            off-duty Fire Paramedic personnel when needed and

            available. In the event "call-in" is required,

            Fire Paramedic personnel will not be required to

            work in excess of 48 continuous hours.

            3.5                   If leave restrictions are implemented as

            provided above, leaves scheduled prior to the

            restriction implementation shall be honored.

            3.6                   Salary for the Fire Paramedic positions

            shall be included in Appendix "A" of the Agreement

            and shall be established with step increases.

            Step increases shall be based on the number of

            years of service the employee has worked for the

            Department with a Paramedic Certification. Said

            increases shall be as follows:

                        Step     Time                            Rate

                        A         1st 2 years                  $140.00 over applicable

                                                                        Firefighter Salary

                        B         2nd 2 years                 $160.00 over applicable

                                                                        Firefighter Salary

                        C         3rd 2 years                 $180.00 over applicable

                                                                        Firefighter Salary

                        D         Over 6 years              $200.00 over applicable

                                                                        Firefighter Salary

                        E          N/A                             $140.00 over applicable

                                                                        Fire Lieutenant Salary

 

            2.         City Proposal.

            a. City proposes to delete portions of

Appendix "B" because of its position that all Firefighters will

become medically trained, and any EMT and paramedic pay should

be included in the base rate as in their proposal in

Appendix "A"; correspondingly, EMT and paramedic pay proposals

are now contained in Appendix "A" (City Brief, pp. 76, 87-88).

            b. City agrees to amend Appendix B by accepting

Union's proposal above on I.V. and/or Airway Technician's

Certification (City Brief, p 88). The City's position is not

clearly stated in the record. We have interpolated its

proposal as follows:

 

                        Addl. Monthly            Total Maximum         Total Maximum

                        Pay Per           Premium Pay  Officer Premium

Certification   Certification   Per Month      Pay Per Month

                                                                        Lieutenant      Captain

I.V. Technician

(Maximum of

6 employees)  20.00               40.00               40.00               n/a

Airway

Technician

(Maximum of

6 employees)  20.00               40.00               40.00               n/a

 

3.         Decision of Arbiters: (Effective January 1, 1988)

 

                        Addl. Monthly            Total Maximum         Total Maximum

                        Pay Per           Premium Pay  Officer Premium

Certification   Certification   Per Month      Pay Per Month

                                                                        Lieutenant      Captain

I.V. Technician

(Maximum of

6 employees)  20.00               40.00               40.00               n/a

Airway

Technician

(Maximum of

6 employees)  20.00               40.00               40.00               n/a

 

            4.         Discussion.

            a. This conclusion adopts the transfer of EMT and

Paramedic Premiums to Appendix A as proposed by the City and

amends Appendix B by adopting the Union's and City's agreed

proposal concerning I.V. Technicians and Airway technicians

after interpolating the City statements.

            b. These premium pay levels are not included in

base pay, and are not to be paid as an addition to those

employees already receiving enhanced base pay under Appendix A

who have Paramedic Certification. These premium pay levels are

to be paid to those employees with either or both I.V.

Technician and Airway Technician Certifications, which

represent intermediate steps on the way to full paramedic

certification.

            c. A maximum of 12 employees having I. V., Airway,

or combinations of both shall be paid under this section. The

City brief and record is silent as to the number of employees.

Twelve is adopted or awarded from the Union Proposal.

 

S. ARTICLE ** -- CALL IN FOR ABSENCES

            Article ** -- Call in for Absences was resolved by the

parties prior to the hearing (City Brief, p 3).

 

T. ARTICLE ** -- MEDICAL CERTIFICATION/RECERTIFICATION AND

            TRAINING

 

            1.         Union Proposal.

            The Union Proposes the addition of the following..

new Article:

 

            ARTICLE ** -- Medical Certification Recertification

            and Training

            **.1                 All employees hired after January 1,

            1985, who hold a medical certification listed in

            Appendix "B" on the date of their employment,

            shall maintain that certification for the term of

            said certification provided the area medical

            coordinator concurs. The Union agrees to

            encourage their members to seek, obtain, and

            maintain medical certifications for which they

            might be qualified.1

 

1Issue of length of paramedic certification maintenance

has been settled by the parties (See letter dated

27 November 17, 1987 to Chairman Revelle).

 

            **.2                 The cost of tuition and books for any of

            the medical certifications listed in Appendix "B"

            shall be paid initially by the employee and

            reimbursed by the employer upon proof of

            successful completion of each class. The employer

            shall also pay up to $150.00 per paramedic per

             year for tuition and books for the continuing

            education credits required for paramedic

            recertification. The employee shall be reimbursed

            by the employer for expenses other than books and

            tuition as provided for in city ordinances and

            policies. Expenses except mileage must be

            documented by receipts. In addition, the employer

            will cover up to one 24 hour shift each year by

            call in as necessary, per employee holding a

            paramedic certification, to allow the employee to

            attend recertification classes.

             **.3                All approved off-duty class time for

            officers and fire fighters necessary to achieve an

            authorized medical certification listed in

            Appendix "B" shall be paid for at the base hourly

            overtime rate of pay. Class time while on-duty

            shall be allowed when manpower permits and call in

            shall be utilized to allow employees to go to

            class when manpower does not otherwise permit

            them to go. Class time shall not impact other

            employees' rights to schedule vacation time off as

            presently allowed, provided there are sufficient

            employees available for call in if necessary to

            cover the student class time.

 

            **.4                 City of Richland, off-duty, certified

            paramedics may be called in to supervise paramedic

            trainees on a voluntary basis, provided that if

            volunteers are of insufficient number to meet

            Department needs, the Department may either

            contract or hire a temporary employee to cover the

            shifts not covered by volunteering Richland

            paramedics. Such contract or temporary employees

            shall not be covered by other Articles of this

            Agreement. Pay for such supervisory work by

            Richland paramedics outside of the regular work

            schedule will be at 1-1/2 times the volunteer's

            base hourly rate unless the volunteer assumes his

            full duties, in which case he shall be paid

            pursuant to Article 24 - Overtime.

 

            2.         City Proposal.

             ARTICLE ** -- Medical Certification

Recertification and Training

            The City proposes the addition of the following new

Article:

 

            All employees in the firefighter

            classification shall, as a condition of

            employment, be at least EMT certified. Non-EMT

            entry level Firefighters will be required to enter

            the EMT certification training program with the

            first available EMT certification course following

            completion of the Firefighter's first four (4)

            months of service with the Employer, and said

            Firefighter will  be required  to successfully

            complete the EMT Certification training program

            within one (1) calendar year from the date that

            the Firefighter enters the program, Employees who

            are paramedics shall maintain their paramedic

            certification for the term of that certification

            or the labor agreement, pursuant to state law

            requirements, or whichever is longer.1

 

1 Issue of length of paramedic certification maintenance

has been settled by the parties (See letter dated

November 17, 1987 to Chairman Revelle).

 

            The cost of tuition and books for any of the

            medical certification classes and recertification

            tests listed in Appendix "A" and "B" shall be paid

            initially by the employee and reimbursed, if

            authorized by the Employer, upon proof  of

            successful completion of each class or test. The

            Employer shall also pay for tuition and books for

            approved continuing medical education required for

            authorized paramedic recertification.

                        Duties of paramedics shall include teaching

            Department medical classes as assigned.

                        Off-duty certified Richland paramedics may be

            authorized to supervise Richland paramedic

            trainees on a voluntary basis, provided that if

            volunteers are of insufficient number to meet

            Department  needs, the Department may either

            contract for such work or hire a temporary

            employee in which case such persons shall not be

            covered by this bargaining agreement. Pay for

            such supervisory work by Richland paramedics will

            be at 1-1/2 times the volunteer Richland

            paramedic's base hourly rate.

 

            3.         Decision of Arbiters.

            ARTICLE **. Medical Certification/Recertification and

Training (effective 1/1/88) shall be:

 

            **.1                 All employees in the firefighters

            classification shall, as a condition of

            employment. be at least EMT certified. This

            requirement shall not be a ground for discharge

            for any employee hired originally prior to January

            1, 1988. Non-EMT entry level firefighters will be

            required to enter the EMT certification training

            program with the first available EMT certification

            course following completion of the firefighter's

            first four (4) months of service with the

            Employer, and said firefighter will be required to

            successfully complete the EMT certification

            training program within one (1) calendar year from

            the date that the firefighter enters the program.

            **.2                 The cost of tuition and books for any of

            the medical certifications listed in Appendix "A"

            and "B" shall be paid initially by the employee

            and reimbursed by the employer upon proof of

            successful completion of each class. The employer

            shall also pay up to $150.00 per paramedic per

            year for tuition and books for the continuing

            education credits required for paramedic

            recertification. The employee shall be reimbursed

            by the employer for expenses other than books and

            tuition as provided for in city ordinances and

            policies. Expenses except mileage must be

            documented by receipts. In addition, the employer

            will cover up to one 24 hour shift each year by

            call in as necessary, per employee holding a

            paramedic certification, to allow the employee to

            attend recertification classes.

            **.3                 All approved off-duty class time for

            officers and fire fighters necessary to achieve an

            authorized medical certification listed in

            Appendix "A" and Appendix "B" shall be paid for at

            the base hourly overtime rate of pay. Class time

            while on-duty shall be allowed when manpower

            permits and call in shall be utilized to allow

            employees to go to class when manpower does not

            otherwise permit them to go. Class time shall not

            impact other employees' rights to schedule

            vacation time off as presently allowed, provided

            there are sufficient employees available for call

            in if necessary to cover the student class time.

            **.4                 Duties of paramedics shall include

            teaching Department medical classes as assigned

            **.5                 City of Richland, off-duty, certified

            paramedics may be called in to supervise paramedic

            trainees on a voluntary basis, provided that if

            volunteers are of insufficient number to meet

            Department needs, the Department may either

            contract or hire temporary employees to cover the

            shifts not covered by volunteering Richland

            paramedics. Such contract or temporary employees

            shall not be covered by other Articles of this

            Agreement. Pay for such supervisory work by

            Richland paramedics outside of the regular work

            schedule will be at 1-1/2 times the volunteer's

            base hourly rate unless the volunteer assumes his

            full duties, in which case he shall be paid

            pursuant to Article 24 - Overtime.

 

            4.         Discussion

            a. The present importance of the medical

qualification of each firefighter is not seriously questioned

by either the City or Union. It is not a sideline service used

only occasionally (Tr. 496:4-497:6). Ambulance calls have

risen from fewer than 600 in 1974 to a range between

1,000-1,200 per year (Ex. C-84). Similarly, ambulance assists

have steadily increased over the last decade (Ex. C-83).

During this same period the services rendered have become

increasingly sophisticated.  Formerly only basic first aid was

provided (Tr. 496:4-6). Now paramedics and EMTs with advanced

certifications now have the capability to "take the emergency

room" *** to "wherever the incident occurs" (Tr.496:19-21).

Thus the requirement that every firefighter be certified to the

end of his or her career is now necessary. On-the-job practice

is not the same as certification. Certification is notice to

the world that the City and the firefighters are competent to

perform the task according to acceptable standards. It will

limit tort malpractice liability risk.

            b. The union's argument that (1) EMT standards

should not  be controlled by entities other than the  parties,

and (2) that if someone fails the test, that firefighter would

no longer be a member of the Department even though having

earned long seniority (Tr.476:21-476:7) does not refer to

problems that need attention as follows:

             (1) Standard controls by outside entities is a

common factor condition of employment such as vehicle drivers

licenses, etc. It is not a reason, even if the record shows

some dissatisfaction with state agencies, to counter the

necessity of giving notice to the world of acceptable

competence.

             (2) The union argues that the provision

requiring all firefighters to be and maintain EMT certification

would require the discharge or non-rehire of employees who

have, for example, 10 years of acceptable service which is not

a reasonable provision for those presently employed or new

hires or both. In view of the importance of qualification and

risk of serious liability it seems correct that the service

should be upgraded if it can be done over time and not result

in the discharge or non-rehire of any person presently

employed. Thus we have added a "grandfather provision" so that

discharge or rehire event applies only to those first hired

after January 1, 1988. These new hires have one year to be

qualified as part of their probationary hire status under

Article **.l above.

            c. The Union's positions concerning additional

remuneration contained in "supplemental agreements" appear

reasonable in view of the adoption of the City's Position

requiring 100% certification and the obvious distaste some

individuals may have or develop while performing this service

(Tr.476:l-14) (Tr. 478:2-480:10) (Tr. 494:5-21).

            d. Requiring paramedics to teach Department

medical classes is a further recognition of the importance of

the medical service. This makes it a regular part of the total

program rather than requiring acceptance of volunteers as

proposed by the Union's "supplemental agreement".

 

U. ARTICLE ** -- LONGEVITY

            1.         Union Proposal.

            a. The Union proposes the addition of the

following new Article:

            ARTICLE ** - Longevity effective 1/1/88)

            **.1                 The employer shall compensate each

            employee for years of service at the following

            rates:

            10-14 years service                1% annual salary

            15-19 years service                2% annual salary

            20-24 years service                3% annual salary

            25 or more years service       4% annual salary

 

            **.2                 Longevity pay shall be computed and paid

            through the bi-weekly payroll system. Such pay

            shall be in addition to any other pays earned.

 

            2.         City Proposal.

            The City opposes the addition of the new Article on

Longevity Pay (City Brief, pp 67-70).

 

            3.         Decision of Arbiters.

            Article ** -- Longevity shall not be included in

the agreement.

 

            4.         Discussion.

            a. The evidence establishes that longevity pay  is

not a useful incentive compared to educational incentive. The

reasoning is well stated by the City in its brief as follows:

 

            The key issue with respect to a longevity pay

            proposal is, according to Dr. Spurlin, the City's

            expert, whether there is any "expected

             relationship between longevity and the

            contribution that the individual would make to the

            organization (Tr. 360:19-21) Dr. Spurlin,

            an expert in industrial organizational psychology,

            recognized the several year learning curve

            required for a firefighter to reach proficiency

            (Tr. 360:24-361:01). The parties' collective

            bargaining agreement already recognizes the

            increased value of firefighter skills over the

            learning years through progressive pay steps,

            promotional opportunities, increased vacation,

            assignment preferences, etc. See Tr. 361:12-25.

            However, Dr. Spurlin concluded that there would be

            no predictable difference in job performance by

            very senior firefighters compared to others who

            have reached a "journeyman" level. See

            Tr. 362:01-20. An individual with three to five

            years' experience is as likely to be the top

            firefighter as is one with 20 years' experience

            (Tr. 362:16-20).

 

            b. Dr. Spurlin's research has also determined that

longevity pay plans do not have a positive effect on employee

morale. Tr. 363:23-364:06. In fact, it is likely that junior

employees would be dissatisfied with a plan which rewards more

senior firefighters who are making no greater apparent

contribution to the organization Tr. 364:06-19. Moreover,

the longevity plan proposed by the Union is unlikely to have

any positive effect on recruitment or retention of employees.

Tr. 364:20-365:06. The city has had no problem retaining

firefighters even without longevity pay and in fact receives

hundreds of applications for the few openings which occur.

Tr. 607:7-16.

            c. The Union did not refute Dr. Spurlin's

testimony regarding the value of longevity. Instead, in

support of its proposal, the Union contends that "the City of

Richland is one of very few cities that do [sic] not recognize

the value of position experience."

            This contention is not suggested by the record of

comparators since those that have longevity pay (Bremerton,

Kennewick, Longview, Redmond and Walla Walla) have no, or very

little, educational incentive pay. What all comparators

establish is that the norm is either one or the other, but not

both; and Richland has the most monetarily generous educational

pay (Ex. C-82).

 

ARTICLE ** -- TERMS OF SUCCESSORSHIP

 

            1.         Union Proposal.

            Union proposes the addition of this new Article as

follows:

 

            **.1     This Agreement shall be binding upon the

            successors and assigns of the parties hereto, and

            no provisions, terms, or obligations herein

            contained shall be affected, modified, altered, or

            changed in any respect whatsoever by the

            consolidation, merger, annexation, transfer, or

            assignment of either party hereto; or affected,

            modified, altered, or changed in any respect

            whatsoever by any change of any kind of the

            ownership or management of either party hereto; or

            by the change geographically or otherwise in the

            location or place of business of either party

            hereto.

 

            2.         City Proposal.

            City opposes inclusion of this new Article in the

parties' agreement (Tr. 634:6-10; City Brief, p. 65).

 

            3.         Decision of Arbiters.

            Article ** -- Terms of Successorship shall be:

 

            **.1     This Agreement shall be binding upon the

            successors and assigns of the parties hereto, and

            no provisions, terms, or obligations herein

            contained shall be affected, modified, altered, or

            changed in any respect whatsoever by the

            consolidation, merger, annexation, transfer, or

            assignment of either party hereto; or affected,

            modified, altered, or changed in any respect

            whatsoever by any change of any kind of the

            ownership or management of either party hereto; or

            by the change geographically or otherwise in the

            location or place of business of either party

            hereto.

 

            4.         Discussion.

            a. This agreement expires on December 31, 1988.

Thus, the effective time for this provision is twelve months

with earlier renegotiation due for 1989 in 1988. It seems

reasonable that if the Tri-Cities are in any respect combined,

it could not occur within the time frame of this agreement;

thus it appears equitable that whatever is provided herein

should be certain for that length of time regardless of

consolidation of cities.

            b. The legislation passed in 1986 governs the

rights of firefighters upon consolidation of departments or

cities. It recognizes the role of collective bargaining

representatives (Ex. 104, § 2.61, 5(1)). It also preserves

some rights, benefits and privileges to which firefighters were

previously entitled. It states in part that transferring

employees "receive a salary at least equal to that of other new

employees of the fire protection district in the position

filled."

            Also, the 1986 legislation does not specifically

eliminate collective bargaining agreements presently in place.

If a consolidation occurs, the statute will control with

respect to matters specifically included, and probably controls

the whole consolidation process regardless of whether or not it

conflicts, presently, however, with the uncertainty of what

the statute covers and absence of case law to construe vague

provisions and the definite lack of provisions which would

eliminate bargaining agreements, it would be inequitable and

arbitrary to say that governmental bodies could unilaterally

quash an agreement with their employees after good faith

bargaining.

            c. The comparable fire departments do not shed

much factual light on this subject and do not constitute true

comparisons, because there is no evidence the consolidation

threat to them is comparable to that of the Tri-Cities

(Ex. 78,79).

 

W. ARTICLE ** -- MANAGEMENT GRIEVANCE PROCEDURE

            Article ** -- Management Grievance Procedure was

resolved by the parties prior to the hearing (City Brief, p. 3).

 

X. ARTICLE ** -- ENTIRE AGREEMENT

            1.         Union Proposal.

            Union opposes inclusion of this new Article in the

parties' agreement, believes it to be a permissive subject of

bargaining (Tr. 425; Union Brief, p. 19).

 

            2.         City Proposal.

            City proposes the addition of this new Article as

follows:

 

            **.1                 The parties have negotiated and agreed

            upon all clauses set forth in this contract; and,

            except as may be otherwise required by the

            statutory bargaining obligations set forth in

            Chapter 41.56 RCW, both parties waive the right to

            bring up for negotiations or bargaining during the

            contract term any items, subjects or matters,

            whether included herein or  not, and agree that

            during the contract term no terms shall be open

            for bargaining.

 

            3.         Decision of Arbiters.

            New Article **.1 Entire Agreement shall be

as follows:

 

            **.1                 The parties have negotiated and agreed

            upon all clauses set forth in this contract; and,

            except as may be otherwise required by the

            statutory bargaining obligations set forth in

            Chapter 41.56 RCW, both parties waive the right to

            bring up for negotiations or bargaining during the

            contract term any items, subjects or matters,

            whether included herein or  not, and agree that

            during the contract term no terms shall be open

            for bargaining.

 

            4.         Discussion.

            a. Even though the subject matter of this article

is in a complaint the Union registered with PERC, it has been

certified to the panel for consideration. As with the

Article 27 - Basis of Negotiations, unless withdrawn, we must

consider it here.

            b. Analysis of the language of this article

proposed by the City leads to the conclusion that it merely

expresses what the law of contracts would  enforce with or

without this provision. This result comes from the principle

that a contract provision expressed, together with a time of

effectiveness of one year, will be enforced for that period of

time and is not subject to "mid-term bargaining."

            c. Nevertheless this explicit statement of the

effect of the law, otherwise effective, places no additional

burden on the parties and it is not reasonable to reject it.

            d. We note that some comparative bargaining units

have similar entire agreement clauses supporting the inclusion

in this contract (Ex. C-73, C-74).

            e. There is no conflict between this article and

 the article on prevailing rights approved elsewhere in this

 contract, because of the strict standard of the prevailing

rights article.  Under the entire agreement clause, there is

simply a limitation on mid-term bargaining, but on the other

hand, the City can not eliminate a prevailing right arbitrarily

mid-term either. This article is designed to eliminate those

grievances which don't meet the standard of the prevailing I

rights.

 

Y. ARTICLE ** -- PROBATIONARY PERIOD

 

            1.         Union Proposal

            The Union proposes the following language for the

new proposed article:

 

            **.1                 Entry level employees shall serve a one

            (1) year probation period.

            **.2                 Employees receiving a promotion in rank

            shall serve a six (6) month probation period in a

            new rank.

            **.3                 Probationary period may be extended in

            RMC 2.28.665 for just cause.

 

            2.         City Proposal.

            City proposes the following language for the new

proposed Article:

 

            All new hires and promotional employees

            shall have a continuous 12-month probationary

            period for their permanent classification.

 

            3.         Decision of Arbiters. (Effective April 1, 1988)

            Article ** -- Probationary Period

 

            All new hires and promotional employees

            shall have a continuous 12-month probationary

            period for their permanent classification.

 

            4.         Discussion.

            a. Comparative departments' agreement supports

clauses of this nature in the agreement (Ex. C-77).

            b. The need for longer observation periods for

firefighters by the chief and administrative staff is

predicated on their unique work schedule (Tr. 451:16-20).

Adequate observation requires more than six months to observe

six months of productive work. A one-year probationary period

is sufficient without an extension.

            c. Long probationary periods are reasonable.

Arbogast v. Town of Westport, 18 Wn. App. 4, 567 P.2d 244

(1977).

 

Z. ARTICLE ** -- STANDARDS OF SAFETY

 

            Removed by PERC from consideration by letter dated

June 23, 1986 to await disposition of unfair labor practice

charges in Case No. 6289-U-86-1214.

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