International
Association of Fire Fighters, Local 2299
And
City
of
Interest
Arbitration
Arbitrator: Timothy D.W. Williams
Date
Issued:
Arbitrator:
Williams; Timothy D.W.
Case #: 07263-I-88-00172
Employer:
City of
Date Issued:
IN THE MATTER OF THE ) ARBITRATION PANEL'S
)
INTEREST ARBITRATION ) OPINION
)
BETWEEN ) AND
)
)
"THE CITY" OR
"THE EMPLOYER" )
)
AND )
)
)
INTERNATIONAL ASSOCIATION OF )
FIRE FIGHTERS, LOCAL 2299 )
)
"IAFF" OR "THE
HEARING:
Nendels
Motor
BRIEFS: City's received:
Association's
received:
HEARING CLOSED:
ARBITRATION PANEL:
Neutral Chair: Timothy
D.W. Williams
City Scott
C. Broyles, Esq.
Representative:
Union Danny
Downs
Representative: Rt 1,
REPRESENTING THE CITY:
Roy Wesley, Labor
consultant
REPRESENTING ThE
Pamela Bradburn, Attorney
APPEARING AS WITNESSES FOR THE
CITY:
Leanard
Brunelle, City Clerk
Robert Berrexuan, Fire Chief
Stan Finkelstein
Association of
Washington Cities
Robert Anderson,
Police Chief
APPEARING AS WITNESSES FOR THE
Don Schues, Member, IAFF Local 2299
Tony Copeland,
Member, IAFF Local 2299
Kathy Hopfner, Member, IAFF Local 2299
Dave McConnell,
Member, IAFF Local 2299
EXHIBITS
Joint
1. 1986-87 Labor Contract
2. RCW 41.56.450
3. RCW 82.14.030
4. RCW 41.26.100
5. RCW 41.56.122
6. CPI, June 1988
7. Washington State yearbook, 1977
8. Bargaining Notes (submitted by mail at Neutral Chair's
direction on
1. Slide script
2. The Valley - Chamber of Commerce publication
3. Comparative chart
4. Survey of
5. Survey of non-union pay increases
6. City of
7. Collection of newspaper articles
8. Collection of newspaper articles on 1988 budget
9. Newspaper article, May 20, 1988
10. 1988 monthly salaries
11. 1988 monthly salaries
12. Survey of salaries for city personnel
13. Analysis of fire service
14. Comparable language on non-wage issues
15. Salary survey for management
Supplemental Evidence Submitted by the
1. 1989 comparability data
2. 1988 comparability data
3. Bar chart of 1988 comparability data
4. Bar chart of 1989 comparability data
5. Declaration of Kathy Hopfner,
City
1. Average Wage Rate Index - 1986
2. 1988 pie chart
3. Contingency Reserve Fund
4.
5. Employee chart
6. 1988 wage increases
7. Comparable data, 1988
8.
9. Comparison of utility rates
10. East-West comparison
11. 1988 tax base comparisons
12. Salary comparison, fire to police
13. Extended comparisons with other communities
14. Fire Chief salaries
15. CPI increase compared to fire fighter increases
16. Yearly advances in CPI
17. Benefit comparables
18.
19. Sick leave documents
Supplemental Evidence Submitted by the City
1. 1989 wage increases for fire - cities greater than 3600
population
2. proximity to
3. Written objection to Ordinance No. 1068
4. City of
5. Average cost of housing
6. National
increases
7. Firefighters 1988 salaries of comparison cities
8. Memorandum dated
9. Benefit data (1988-89)
10. ACCRA letter, September 19, 1989
11. Memorandum,
12. Official returns of the state primary
13. City of
14. Clarkston Civil Service eligibility list
15. Firefighters investigated - computer
16. Amendment to IAFF Local 2299,
17. Boeing's record
18. Joint bargaining notes
BACKGROUND
This matter involves the arbitration
of an interest
dispute between International
Association of Firefighters
Local 2299 (hereafter the
Clarkston
(hereafter the City or the Employer). A hearing was
held
before an arbitration panel consisting of Union Represen-
tative Danny Downs, City Representative Scott Broyles and
Neutral Chair (hereafter
the Arbitrator) Timothy
D.W.
Williams. Hearing was held on
Arbitrator a written notice of
the issues still in dispute and
the
parties' respective positions on those issues. The issues
as
indicated by the parties are:
1. Article
IX - Wages
2. Article
II - Duration of Agreement
3. Article XI -
Overtime and Callback Pay
4. Article XVI -
Unused Sick Leave
5. Article XXIV -
Vacation
6. Article XXVI
Grievance Procedure
7. Article XXIX
City Security
During the hearing the parties resolved their dispute
over
Article XXIV, Vacation. Thus only six
issues remain
before
the Arbitration Panel.
During the hearing the Panel took evidence
and arguments
on
an issue-by-issue basis in the order as outlined above. As
required
by RCW 41.56.450, the Chair of the Panel made a
recording
of the proceedings. At the closing of
the hearing
the
parties agreed to file post-hearing briefs and set the
date
for mailing them.
Following the hearing but prior to the filing of briefs,
the
City filed unfair labor practices with the Public Employ-
ment Relations Commission concerning Union
activity related to
"bargaining,
mediations and in the Interest Arbitration hear-
ing conducted on August 12, 1988 in Nendels, Clarkston,..."
(copy
to Arbitrator dated
unfair
labor practice complaint challenged the list of compa-
rables presented as evidence by the
tion hearing.
On
letter
in response to an oral request from the
tion of that letter read:
On
extension
of the deadline for filing briefs
because
the unfair labor practice charge cast
uncertainties
over what evidence was properly
before
the arbitration panel. The Arbitrator
agreed
that the evidentiary question needed
resolution
before briefs could be filed and
granted
the extension until
The Arbitrator further corresponded with the parties by
letter
dated
On
from
the
postponement
for filing briefs in the above
referenced
matter. The
postponement
is necessary until the City's ULP
on
evidence presented by the
tration Panel is resolved. The Arbitrator con-
tacted the City through its representative on
the
Arbitration panel. The City agrees to
this
postponement. Therefore the Arbitrator
approved
the request.
The Arbitrator requests that the parties
keep
him informed as to the progress
of the ULP.
Based on the final resolution of the ULP,
the
Arbitrator will determine the next step in
these proceedings.
During the summer of 1989 the Arbitrator received a let-
ter dated
with
that letter was a copy of PERC Decision No. 3246. In
that
decision PERC ruled that the
unfair
labor practice and, in part, ordered that:
b. Withdraw the list of comparables relied
upon since
the currently pending interest
arbitration
proceedings
only upon the set of compara-
ble jurisdictions announced
to the
employer
during the negotiations for a
successor
collective bargaining agreement
for 1988 and/or 1989.
(PERC
Decision No. 3246, page 18)
By letter dated
parties
of his
receipt of PERC Decision
No. 3246, and
requested
that they indicate whether because of the passage of
time
the record should be reopened for supplemental evidence
and
as to the desired date for the filing of post-hearing
briefs. Following both oral and written
correspondence from
the
parties, on
letter
to the parties which stated in part:
After discussions with both parties
and in an
attempt
to meet the needs of each, I am setting
Monday, September 25th as the
date for the fil-
mg of supplemental
evidence in the
above
referenced
case. The date for filing briefs is
Friday, October 13th. Please send a copy of
the
supplemental evidence and the briefs to
each
other and all three members of the Arbi-
tration Panel.
As soon as I have a copy of
the briefs I will
contact
the other two members of the panel and
arrange a meeting date.
It is my hope to con-
clude
this matter as quickly as possible.
Supplemental evidence was received by mail from both par-
ties. On
from
the City's Representative which indicated that "The City
will
not raise any challenge or objection with respect to a
question
of whether the
timely
mailed to me or panel member Scott Broyles."
Briefs were timely received from both parties.
RCW 41.45.450 requires that:
The Neutral Chairman shall
consult with the
other
members of the Arbitration Panel, and,
within
30 days following conclusion of the
hearing,
the Neutral Chairman shall make final
findings
of fact and a written determination of
the
issues in dispute, based on the evidence
presented.
On
the
Panel for purposes of discussion and consultation. The
Panel met in a meeting room at
the
discussed
each issue in turn. During the
discussion the Arbi-
trator asked the representatives to summarize the
position and
argument
of his party for each issue. Following
this discus-
sion, the Arbitrator outlined his proposed award
on the issue
and
asked for any response or rebuttal from the representa-
tives.
Following the November 3 panel discussion session, the
Arbitrator closed the hearing.
Based on the discussion session with the Panel members,
and
on the evidence and arguments provided by the parties, the
Arbitrator fashioned a
written arbitration award.
In
constructing
this award, the Arbitrator was mindful of those
criteria
set out in
fighter
interest arbitration proceedings. Those
criteria are:
(a) The constitutional and statutory authority
of the employer;
(b) Stipulations of the parties;
(c) (i)
[this paragraph is not applicable
(ii) For employees listed in *RCW
41.56.030(6)(b),
comparison of the wages,
hours, and conditions of employment of
personnel
involved in the proceedings with
the wages, hours,
and conditions of
employment
of like personnel of public
fire
departments of similar size on the
west
coast of the United States. However,
when an adequate
number of comparable
employers exists within
the state of
Washington, other
west coast employers
shall
not be considered;
(d) The average consumer prices for goods and
services, commonly known as the
cost of
living;
(e) Changes in any of the foregoing circum-
stances during the pendency of the pro-
ceedings;
and
(f) Such other factors, not confined to the
foregoing, which are normally or
tradi-
tionally
taken into consideration in the
determination of wages, hours
and condi-
tions
of employment
The Arbitrator's preliminary written award was then sub-
mitted to the representatives for final
review. Modifications
to
the preliminary award were made to the extent that the
Arbitrator was convinced that
such modifications were sup-
ported
by the evidence and arguments.
ISSUES, ANALYSIS AND AWARD
ISSUE 1: ARTICLE IX - Wages
A. Proposals. The Union submitted and argued for the fol-
lowing
wage proposal:
For 1988 the Union proposes a
25% increase
effective
January 1, 1988. For 1989 the Union
proposes
an increase of 100% of the 5/87 to
5/88 CPIW, but at least 4% and
no more than
10%,
effective January 1, 1989.
The Union, in its brief, acknowledges that all rele-
vant cost of living (CPI) data is now available and
therefore
its wage proposal for the second year would be
a
4% increase (Union's Brief, p. 9).
The City argued for a 3.8% across-the-board
increase
effective
January 1, 1988. During the hearing in
August
of
1988, the City additionally proposed a one year agree-
ment. In
its brief provided in the fall of 1989, the
City acknowledges that the
Panel will probably award a
two
year increase; and in that event the City argues for
a
second year increase of 3.9% effective January 1, 1989
(brief
page 17).
B. Discussion.
The majority of the parties' evidence and
arguments
focused on this issue. Most of this
discussion
dealt
with increases in the cost of living, comparabil-
ity, and the City's financial situation. Of these three,
the
Arbitrator finds the City's financial situation and
the
matter of comparability to be the most important in
determining
the appropriate wage increase.
Turning first to
the matter of
comparability, the
Arbitrator adopts1/, for purposes of
this award, the
City's list of comparables as
provided in City Exhibit #7
and
City Supplemental Exhibit #7. A key
factor in the
City's list is what is considers
an 18% difference in
living
costs between the east side of the state of
Washington and the west side
-- particularly the Puget
Sound industrial area. The Arbitrator carefully reviewed
the
City's arguments on this difference and finds them
persuasive. However, he does not find this logic to be
applicable
to the City of Chehalis. Chehalis is not
in
the
Puget Sound area and the Arbitrator finds nothing in
the
City's evidence which leads to the conclusion that
the
cost of living in Chehalis is the equivalent to that
in
the Seattle area. The list of
comparables, therefore,
as reconstrued by the Arbitrator, is as found on page 11.
This comparability data is
drawn from the rank of the
First
Class Firefighter. On
January 1, 1988 the City of
Clarkston First Class
Firefighter was making a salary of
$1790
per month. In
order to improve that salary to the
average
of the comparables ($1947), it would take a 9%
increase. Further, to
retain the average
of the
coinparables for 1989 ($2064) it would
take a subsequent
6% increase.
_______________
1/ with the ruling by the PERC
in Decision No. 3246, the Arbitrator finds that the City's list of
comparables
is the only list properly in evidence before the Panel The Arbitrator finds this
list
sufficient to help fashion a reasonable decision and to meet statutory
requirements. The
_______________________________________________________________
Firefighters
1988 Salaries of Comparison Cities
*Adjusted
for a 18%2/
West
Side Living
Firefighters Monthly Cost Difference
Toppenish $1,727.00 $1,727.00
Bonney Lake* $2,372.00 $1,945.04
Cheney $2,074.00 $2,074.00
Chehalis $2,152.00 $2,152.00
Issaquah* $2,242.00 $1,838.44
Average $2,113.40 $1,947.30
Firefighters
1989 Salaries of Comparison Cities
*Adjusted
for a -18%
West
Side Living
Firefighters Monthly Cost Difference
Toppenish $1,886.00 $1,886.00
Bonney Lake* $2,467.00 $2,022.94
Cheney $2,157.00 $2,157.00
Chehalis $2,229.00 $2,229.00
Issaquah* $2,470.00 $2,025.40
Average $2,241.80 $2,064.07
___________________________________________________________________
While the Arbitrator believes the comparability data
fully
justifies the above increases, he finds the City's
financial
situation to be a strong mitigating factor
against
that level of wage adjustment. In the Arbitra-
tor's view, the evidence establishes that the
City has
very little reserve
funds to absorb wage
increases
(City's Supplemental Exhibit
#4), and that there is only
a
very limited ability for the City to raise additional
funds
(testimony of Stan Finklestein).
_____________________
acceptance
of this list by the Arbitrator, however, should not necessarily be considered
an
endorsement
of it for the parties' future negotiations.
2/ The City used a l7% figure here but the Arbitrator does not see a reason
for a chanqe.
Moreover, the City of Clarkston continues to face
financial
impact of being located directly across the
state
border from Lewiston, Idaho, with whom it competes
for
any new industry that moves into the area.
Further,
it
is difficult for the City to attract new retail busi-
ness
onto its side of the border. This is a
particular
problem
for Clarkston since sales taxes in the state of
Washington are
higher than those in the state of Idaho;
and
thus commercial operations that could raise sales tax
revenues
for the city tend to migrate across the state
border.
In general, the Arbitrator finds the City's argu-
ments with regards to its financial condition to
be suf-
ficiently persuasive to justify a lesser wage
increase
than
that supported by the comparability data.
Thus,
instead
of a 9% and 6%, the Arbitrator is awarding a
fully
retroactive wage increase of 3% effective January
1, 1988, 3% July 1, 1988, 3%
January 1, 1989 and 2.3%
July 1, 1989. For a First Class Firefighter this will
bring
about the following wages:
January 1, 1988 $1790+(1790 x
.03) =
$1844
July 1, 1988 l844+(1844 x .03) = $1899
January 1, 1989 1899+(1899 x .03)
= $1956
July 1, 1989 1956+(1956 x .023) = $2001
In addition to the above points of analysis, the
Arbitrator points out an
additional reason for the amount
and
timing of the increases. By providing
wage increases
at
four different times instead of two, there is less
immediate
financial impact on the City while permitting
an
upward stretch to the salary schedule.
While fire-
fights
get less up-front money in this system, the wage
ceiling
rises more rapidly
and long-term gains
are
increased. Thus it helps the City with the immediate
financial
situation while providing assurances that local
firefighters
salaries will remain in a reasonably approxi-
mate
position to those in comparable communities ($2001
per
month as compared to the comparable average of
$2064).
C. Award. The Abitrator awards the
following, fully
retroactive
salary schedule for all positions within the
bargaining
unit:
January
1, 1988 3%
July
1, 1988 3%
January
1, 1989 3%
July 1, 1989 2.3%
ISSUE 2: ARTICLE II - DURATION OF AGREEMENT
A. Proposals. The
old agreement contained the following
language under Article II:
This agreement shall be
effective as of January
1, 1986 and until December 31,
1987 PROVIDED
HOWEVER, that this agreement
shall be subject
to
such change or modification as may be mutu-
ally
agreed upon by the parties hereto.
(Joint Exhibit #1, page 1)
As has been previously noted, while the City argued
against
it, the Arbitrator is awarding a two-year agree-
ment.
This was specifically necessitated by the fact
that
the award is being released almost at the end of
what
would be the second year of the agreement.
In the
Arbitrator's view, the chain
of events related to the
filing
of the unfair labor practice and the subsequent
decision
of the Public Employment Relations Commission
necessitated
an award covering the full two years.
In addition to the time frame for the labor agree-
ment, the City also proposes an addition to the
above
language
which is strongly opposed by the Union.
The
City proposes adding the
following sentence to the lan-
guage:
However, neither party shall
be obligated to
consider
the proposals of the other to modify
or
enlarge provisions of this agreement during
its
term.
B. Discussion.
During the time that the preceding agreement
was
in effect, the Union filed and won an unfair labor
practice
(PERC Decision No. 3286) which in part dealt
with a
unilateral change in work schedules.
The Union
claimed
that such changes had to be bargained prior to
implementation. Primarily because of the experiences
associated
with that unfair labor practice, the
City
seeks
language that helps shut the door to the Union's
right
to negotiate during the term of the agreement.
Since the finding of an unfair labor practice was
based
on the Union's statutory rights related to what has
often
been called the Continuing Duty to
Bargain, the
Union is not eager to
surrender these rights through the
adoption
of new contract language.
The Arbitrator reviewed the positions of the parties
on
this issue and does not find a substantial difference.
The City indicates in its
brief that it is willing to
extend
to the Union the reassurances that the proposed
language
would not surrender statutory rights
(Brief,
page
19), The Union in its brief appears most
concerned
about
the City's proposed language primarily because of
fears
about losing its statutory rights (Brief page 16).
The
Arbitrator is awarding
new language that
reflects
the interests of both parties. The
language
extends
assurances to the City that it will not be
required
to renegotiate provisions in the contract during
the term of
the labor agreement,
and specifically
protects
the Union's statutory right to negotiate manda-
tory subjects of bargaining.
C. Award. The
Arbitrator directs the parties to adopt the
following
language for Article II of the agreement:
This agreement shall be effective as of
January
1, 1988 and until December 31, 1989,
provided
however,
that this agreement shall be subject
to
such change or modification as may be mutu-
ally
agreed upon by the parties hereto. How-
ever,
neither party shall be obligated to con-
sider
proposals of the other to modify or
enlarge
provisions of this agreement during its
term; except as may be required by the statu-
tory bargaining obligations
set forth in
Chapter 41.56 RCW.
ISSUE
3. ARTICLE
XI - OVERTIME AND CALLBACK PAY
A. Proposals.
Language from the prior agreement for Article
XI reads as follows:
Any hours worked other than
regular duty hours
shall
be paid at one and one-half times the
basic
rate of pay. There shall be a one hour
minimum overtime for
callback and holdover
situations. Overtime compensation hourly rate
shall
be computed on the basis of 40 hours work
week
and shall be payable on the first payday
following
the hours worked.
(Joint Exhibit 1, page 4)
Over
the strong objection of the Union, the City
proposes
to add the following sentence to the above
language:
It shall not be a violation of
this agreement
for
the chief to temporarily re-schedule the
assigned
shift of employees in order to reduce
overtime
expense.
B. Discussion.
Testimony during the hearing established
that
City of
Clarkston firefighters have
reasonably
permanent
shift assignments which may last for many
years. The City proposes language which would allow
it
to
assign firefighters work outside their regular shift
but
to be able to avoid paying overtime by calling it a
shift
reassignment. As the Arbitrator
understands it,
the
employee would then be moved back to their regular
shift
as soon as this change could happen without the
payment
of overtime. In other words, the City
is not
concerned
with the basic right of shift assignment, but
rather
the right to use a verbal slight of hand3/
to avoid
overtime
payment.
The Arbitrator finds this to be a substantial change
from
current contract language which grants overtime for
"any
hours worked other than regular duty hours." The
Arbitrator interprets this
phrase to mean that the City
pays
overtime whenever the employee is assigned to do
work
other than that which is part of his/her normal
shift
assignment. The language does not
contemplate any
right
for the City to declare a work day part of an
employee's
regular shift whenever the scheduling of that
day
is only temporary and not intended to be an on-going
part
of the employee's regular shift schedule.
The Arbitrator does not find good reason to award
for
the City on this issue and, in fact, finds some
substantial
reasons against such an award. The City
did
not provide
any significant financial problem caused by
the
inability to temporarily reassign shifts so as to
save
overtime. In fact, the evidence
indicates that this
situation
has occurred only twice in the last several
years.
More importantly, this Arbitrator believes that a
primary
reason for overtime payment is to provide a
financial
disincentive to the employer for 1) working
_________________
3/ Arbitrator calls this a
verbal slight of hand because the Employer does not intend a shift
change
in the normal sense of that word but only wishes to describe its action in that
fashion
so
as to avoid overtime payment.
employees excessively long
hours and 2)
protecting
employees
from unnecessary encroachment on their right to
their
private lives. With regard to the second
point,
the
Arbitrator emphasizes the difference between the
right
of employees to voluntarily agree with another
employee
to change shifts and the right of the City to
simply
compel an employee to report for work on a day
different
from their regular shift. Because it is
no
longer
voluntary, the shift change may, in fact, infringe
upon
the employee's personal and family life.
Thus the
need
for a financial disincentive which discourages but
does
not prohibit this action. This is precisely
the
role
of overtime payment. With the above in
mind, the
Arbitrator wonders if removing
this financial disincen-
tive might not increase the chances that the
City will
more
frequently rely upon temporary shift changes to deal
with
scheduling problems.
For the above reasons, the Arbitrator finds for the
Union on this issue and will
not award the City's pro-
posed
language changes.
C. Award. The Arbitrator directs the parties to place
into
the new labor agreement for
Article XI the language found
in the prior agreement without
change.
ISSUE
4. ARTICLE
XVI - UNUSED SICK LEAVE
A. Proposals. The prior agreement contained the following
language
for Article XVI:
Employees shall be compensated
in cash at the
regular
rate of pay for their unused accumula-
tion of sick leave when they are permanently
separated
from the service by retirement or
reduction
in force. In the event of death, the
employee's
beneficiary shall receive the com-
pensation.
A. 24-hour
shift employees shall be limited
to 63% of the maximum allowable
accrual.
B. The
payment of unused sick leave for 40
hour employees shall be equal to
the maxi-
mum accrual of 90 8-hour days.
(Joint
Exhibit #1, page 6)
The Union argues to retain the language without
change. The City proposes to grandfather current
employ-
ees so that they continue to receive this
benefit but to
place
all new employees under the program which covers
all
other City employees. That program does
not provide
any
sick leave cash out.
B. Discussion. There are two reasons why the Arbitrator
will support the City's proposed
change. First, the
Arbitrator is convinced that the language in
the prior
agreement
came about as a result of the City's desire to
have a tool to more effectively
manage the use of sick
leave. It did not come about as a way of providing addi-
tional
cash to employees. The Arbitrator
emphasizes the
difference
between a bona fide employee benefit versus an
program designed to help accomplish a manage-
ment
objective. The City now appears to be
indicating it
rather
desires this management tool 4/. Since
the City
does
not wish this management tool, the Arbitrator does
not
feel it should be forced upon them.
Second, the Arbitrator finds
persuasive the City's
arguments
with regard to standardizing its sick leave
for
across all employees.
Non-standardization could
be a
very divisive element among the various groups of
employees
that should be avoided if possible.
For the above reasons, the
Arbitrator will award for
the
City on this issue.
The Arbitrator directs the parties to place lan-
guage in the agreement under Article XVI which 1)
pro-
vide
the rights of existing employees to the existing
sick
leave cash out program, and 2) removes the sick
leave
cash out program for all new employees (effective
the
date of this award) and instead places them under a
program
similar to other City employees.
ISSUE 5 ARTICLE XXVI - GRIEVANCE PROCEDURE
A. Proposals. To
the language of the grievance procedure
found
in the parties' prior agreement, the City would add
jurisdiction
on the authority of an arbitrator. The
__________________
4/ Employers find a sick leave cash out
provision to be useful in controlling abuses of sick
leave
reporting overtime payments that are a result of over-use of sick leave and allowinq more
scheduling
of work because of better employee attendance.
City's language states that, "The
arbiter shall have no
power or authority to render a
punitive award and any
award so rendered shall be null and
void and unenforce-
able."
The Union opposes placing this new language
in the
agreement.
B. Discussion. Having carefully reviewed the arguments and
evidence
of the parties on this issue, the Arbitrator
finds no persuasive reason to adopt
the City's proposed
language
and instead finds reasons to oppose it.
One
such reason is his concern over
the absence of a clear
definition
for a "punitive" award.
Another reason is
that while extremely rare and
oftentimes not sanctioned
by law, there may be those
unusual situations in which
the facts of the case strongly
support some form of a
punitive
award. Arbitrators have generally been
given
broad remedial authority in order
to properly remedy any
contract
violation including any of the nature as out-
lined above. The City's arguments do not convince this
Arbitrator that a change is needed to this
approach.
For these reasons, the Arbitrator will find
for the
Union on this issue and not award a
language change.
C. Award. The
Arbitrator directs the parties to retain for
the
new agreement the language from Article XXVI as found
in
the parties prior agreement.
ISSUE 6: ARTICLE XXIX - CITY SECURITY
A. Proposals. The
language from the prior agreement for
Article XXIX reads as follows:
The Union and
the City recognize
the
essential
nature of the services provided by
the
Fire Department in protecting the public
safety. In recognition of this fact, nothing
contained
in this Agreement shall permit or
grant
any public employee the right to strike,
or
refuse performance of official duties.
Any
employee
who refuses to perform his/her regular
duties
when so directed by his/her supervisor
or superior, may
be subject to
summary
discharge,
loss of seniority and any related
employee
benefits provided. However, such
remedy
may not be enforced against any employee
on
other than regular working days, or when
such
employee is on sick leave or vacation.
The City further agrees that it recognizes
the
right of the members of Local #2299 not to
be
required to perform functions of any other
Union, with which the City
deals, when the
particular
Union is on strike. However, noth-
ing in this Agreement is to be construed to
allow
refusal by the Union members to perform
their
jobs, within their job classification, in
event
of an emergency.
To this language the City would add the following
sentence:
In
the event of an employee violation of
the no-strike prohibition, then
the only matter
subject
to question in a grievance appeal shall
be the question of whether the
question did, in
fact, occur. The penalty or discipline admin-
istered
shall be the exclusive right of the
City.
The
and
argues that it is neither needed nor does it benefit
the
City.
B. Discussion. The Arbitrator is convinced that the City's
proposed
language simply beats a dead horse.
State law
prohibits a
firefighter from striking. Moreover,
the
language
from the prior agreement specifically grants to
the Employer the right to
summarily discharge employees
who refuse to perform their
regular duties when directed
to do so by a supervisor. The Arbitrator finds no evi-
dence,
whatsoever, of any tendency on the part of fire-
fighters
to strike or refuse their services 5/.
And, even
if there was the possibility for
a job action, the exist-
ing
statutory provisions and contract language appear to
the Arbitrator sufficient to
remedy the situation. For
these reasons the Arbitrator will
find for the
this issue.
C. Award. The Arbitrator directs the parties to place
into
the new agreement the language
from Article XXIX from the
prior agreement.
Respectfully submitted on this
the 3rd day of December 1989 by
Timothy D. W. Williams
Arbitrator and Neutral Chair
of
the Arbitration panel
________________
5/ The
example cited by the employer as illustrative of a potential problem does not
appear to the
Arbitrator
to encompass a strike or refusal of service situation. That dispute appears to be over the
method
of doinq the work (written reports versus computerized
reports) , not over whether the
firefiqhters refused to perform vital
services.