International Association of
Fire Fighters, Local 1052
And
City of
Interest Arbitration
Arbitrator: George H. Revell
Date Issued:
Arbitrator:
Revell; George H.
Case #: 06260-I-86-00142
Employer:
City of
Date Issued:
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
)
Employer, ) [PERC #6530-M-86-2632]
)
and ) 87-0945
)
INTERNATIONAL
ASSOCIATION OF ) Award and Opinion
FIREFIGHTERS LOCAL
1052, )
)
____________________________________)
DANNY T. DOWNS GEORGE H. REVELLE ALBERT G. ROSS
Route 1,
(206)
622-9950
CRITCHLOW &
WILLIAMS PERKINS
COIE
David Williams J.
David Andrews
1177 Jadwin Bldg. Nancy Williams
(509) 946-6181 (206)
682-8770
For the
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
)
Employer, ) [PERC
#6530-M-86-2632]
)
and ) 87-0945
)
INTERNATIONAL
ASSOCIATION OF ) Award
FIREFIGHTERS LOCAL
1052, )
)
_________________________________________ )
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
_______________ __________________ ______________
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, )
)
_________________________________________ )
I. PROCEDURAL
MATTERS
On September 30, October 1 and
arbitration hearing
was held at the
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 (
representing the
City of
represented by its
attorneys, Perkins Coie, J. David Andrews
and Nancy Williams.
The
Critchlow &
Williams and David E. Williams.
The evidentiary phase was closed
The hearing was closed upon receipt
of simultaneously
mailed briefs
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
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
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
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
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
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
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:
per hour;
rate of pay for
positions worked;
Capt/5% per day; and
per day. Only one,
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
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
employee.
b. The past practice here has
weakened that
responsibility under the provisions of the 1985 contract
here
urged by the
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
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
day. The activity schedule for
Thanksgiving Day
and Christmas will be
c. City proposes the addition of
Section 19.3
as follows:
19.3 Both
parties recognize the need to
schedule additional activities after
and that Employer retains the right
to do so.
that the City shall not schedule
more
than 18 activity hours per shift after
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
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
19.3 Both
parties recognize the need to
schedule additional activities after
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
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
(less an hour for
lunch); on Saturday or Sunday from
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
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
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
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
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
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
participation has at
times left the public without needed
protection. For
example, in 1986, the
members to provide
emergency protection at the
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
(Tr. 314:1-11.
Promptly at
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.
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
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
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
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
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
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
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
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
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
month and compares
favorably with
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.
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.
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
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
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
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
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
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
(
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.
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
(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
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
that comparative
departments use the actual hourly pay rate
rather than a 40
hour week except
and
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.
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
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
27.1.3 The consumer price index as published
bi-monthly by the Bureau of Labor
Statistics for the
the changes in the cost of living.
27.1.4 Joint consideration of salaries and
benefits based upon advantages to
both the Employer and
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
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
January 1 to
Q. APPENDIX A --
SALARY SCHEDULE
1. Union
Proposal.
a.
Appendix "A"
shall consist of three salary
schedules patterned after the 1985
Agreement and
reflecting the following pay
increases:
1986 Schedule:
Beginning
be increased to seven percent (7%)
above the 1985
Agreement rates.
1987 Schedule:
Beginning
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
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
Fire Department as a certified
paramedic.)
(Firefighter/P2
is the 3rd and 4th years of service in
the
(Firefighter/P3
is the 5th year of service in the
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;
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
salaries shall be increased to three
percent (3%) above the 1985
Agreement
rates.
b. 1987 Schedule:
Beginning
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
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
Fire Department as a certified
paramedic.)
(Firefighter/P2
is the 3rd and 4th years of service in
the
(Firefighter/P3
is the 5th year of service in the
(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
City and this Panel
(
evidence
demonstrates as to salaries the need for a substantial
increase to come up
to average:
(1) Top grade firefighters at
$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
Total 14,904 16,734 8,963
Average 2,484 2,789 2,988
Above
Richland 258 384 391
(2) "Historical" salary comparisons
between
as to top grade
firefighters changed from $2,120 to $2,226 for
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,
b. The City's Current financial
circumstances are
an inhibiting factor
to be weighed and applied to any
increases. We note:
(1)
dependent in many
respects on the
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
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
(4) The population and valuation for tax
purposes presently
indicate no different relationship that
shows any distress
situation for
(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
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.
follows, effective
1. Employees
in the Firefighter or Lieutenant
classifications who hold a valid
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
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
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
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
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
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
paramedics. Such contract or
temporary employees
shall not be covered by other
Articles of this
Agreement. Pay for such supervisory
work by
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
authorized to supervise
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
be at 1-1/2 times the volunteer
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
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
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
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
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
U. ARTICLE ** --
LONGEVITY
1. Union
Proposal.
a. The
following new
Article:
ARTICLE ** - Longevity effective
**.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.