International
Association of Fire Fighters, Local 2781
And
Snohomish
County Fire District
Interest
Arbitration
Arbitrator: Alan R. Krebs
Date
Issued:
Arbitrator:
Krebs; Alan R.
Case #: 13462-I-97-00289
Employer:
Snohomish County Fire District 7
Date Issued:
IN THE MATTER OF
SNOHOMISH COUNTY FIRE DISTRICT
No.7
AND
INTERNATIONAL ASSOCIATION OF
FIREFIGHTERS,
LOCAL 2781
Date Issued:
INTEREST ARBITRATION OPINION
AND AWARD
OF
ALAN R. KREBS
Appearances:
SNOHOMISH COUNTY FIRE DISTRICT No. 7 Otto
G. Klein, III
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS,
LOCAL 2781 James H.
Webster
IN THE MATTER OF
SNOHOMISH COUNTY FIRE DISTRICT
No.7
AND
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS,
LOCAL 2781
OPINION OF THE INTEREST
ARBITRATOR
PROCEDURAL MATTERS
In accordance with RCW 41.56.450, an interest arbitration
hearing involving certain
uniform personnel of Snohomish Fire
District No. 7 was held in
1998. Rather than convening the three-person
arbitration panel
called for in the statute, the
parties agreed to present this
dispute to a single
arbitrator. Snohomish County Fire
District
No. 7 was represented by Otto
G. Klein, III, of the
Group. International Association of Firefighters,
Local 2781 was
represented by James H.
Webster of the law firm Webster, Mrak &
Blumberg.
At the hearing, witnesses testified under oath and the
parties presented documentary
evidence. There was no court
reporter, and, therefore, the
Arbitrator tape recorded the
proceedings for the sole
purpose of supplementing his personal
notes.
The parties agreed upon the submission of post-hearing
briefs. The Arbitrator received the briefs on August
12, 1998.
ISSUE
The
the District's Fire
Department. The
parties to a collective
bargaining agreement which expired on
contract despite their efforts
in negotiations. Only one matter
remains at issue. The District proposed, and the
amending the bargaining
agreement by adding the following
underlined language to §17.1
of their expired agreement:
__________
17.1. Overtime pay rates shall be effective
for all employees covered by
this Contract
who have worked over forty
(40) hours in a
seven (7) day cycle for
employees assigned to
eight and ten hour shifts,
forty five hours
for employees assigned to
nine hour shifts,
or two hundred four (204)
hours in a twenty-
seven day cycle, depending on
which cycle
they have been assigned.
__________
The effect of the District's
proposal would be to remove the
additional compensation
received by firefighters working the
daily 9-hour shift, which is
over and above the standard monthly
wage received by other
Department firefighters.
APPLICABLE STATUTORY
PROVISIONS
Where certain public employers and their uniformed personnel
are unable to reach agreement
on new contract terms by means of
negotiations and mediation,
RCW 41.56.450 calls for interest
arbitration to resolve their
disputes. In interest arbitration,
an arbitrator or arbitration
panel adjudicates a resolution to
contract issues regarding
terms and conditions of employment,
which are at impasse following
collective bargaining
negotiations. The parties agree that RCW 41.56.450 is
applicable
to the bargaining unit of
firefighters involved here.
RCW 41.56.465 sets forth certain criteria which must be
considered by an arbitrator in
deciding the controversy:
__________
RCW 41.56.465 Uniformed personnel--
Interest arbitration
panel--Determinations--
Factors to be considered. (1) 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 taken into
consideration the
following factors:
(a) The constitutional and statutory
authority of the employer;
(b) Stipulations of the parties;
(c) (i) ...
(ii) For employees listed in RCW
41.56.030(7)(e) through (h),
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
However, when an adequate
number of
comparable employers exists
within the state
of
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 circumstances
under (a) through (d) of this
subsection
during the pendency
of the proceedings; and
(f) Such other factors, not confined to
the factors under (a) through
(e) of this
subsection, that are normally
or
traditionally taken into
consideration in the
determination of wages, hours,
and conditions
of employment. ...
* * *
__________
RCW 41.56.430, which is referred to in RCW 41.56.465, reads
as follows:
__________
RCW 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
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
promote such dedicated and
uninterrupted
public service there should
exist an
effective and adequate
alternative means of
settling disputes.
__________
APPLICABLE PROVISIONS OF THE
EXPIRED COLLECTIVE
BARGAINING AGREEMENT
__________
* * *
ARTICLE 10 Working Hours and
Shifts
Section 10.1 - The District and the
recognize that employees covered
by this
Contract may be working in a
standard eight
(8) hour shift, a standard
nine (9) hour
shift, a standard ten (10)
hour shift, or a
standard twenty four (24) hour
shift.
Section 10.2 - The standard eight (8) hour
shift shall consist of five (5)
consecutive
work days, followed by two (2)
days off. The
standard schedule shall begin
at 0800 hours
on Monday and will run until
1700 hours with
one (1) hour for lunch. (This shift will
apply for employees of the
rank of
probationary Fire Fighter and
employees
assigned to light duty
activities only.)
Section 10.3 - The standard nine (9) hour
shift shall consist of five
(5) consecutive
work days, followed by two (2)
days off. The
standard schedule shall begin
at 0800 hours
on Monday and will run until
1700 hours.
Section 10.4 - The standard ten (10) hour
shift shall consist of four
(4) consecutive
work days followed by three
(3) days off.
This standard schedule shall
normally begin
at 0700 hours until 1700 hours
or as mutually
agreed upon by the
Section 10.5 - The standard twenty four (24)
hour shift shall begin at 0800
hours on the
specific day established by
the District and
such employees shall be on
duty for twenty
four consecutive hours. The shift schedule
will be the MODIFIED
WEEK SCHEDULE.
Section 10.6 Under the
terms of the Fair
Labor Standards Act the
Employer and the
for employees covered under
this Contract
shall be forty (40) hours in a
seven (7) day
cycle and two hundred four
(204) hours in a
twenty seven (27) day cycle.
Section 10.7 The
agree that any employee
covered under this
contract on off duty hours is
not required to
remain in the range of the
Fire District
alarm system and is not
required to respond
to any alarms.
* * *
ARTICLE 17 Overtime Pay
Section 17.1. [See
language in Issue section
above]
* * *
Section 17.4 Overtime
shall be at the rate
of one and one half (1 1/2)
times the
employees regular rate of pay
and shall be
paid in 15 minute increments
of time.
* * *
ARTICLE 23 Salaries
Section 23.1 The . . . monthly wage scale shall
be as follows:
* * * *
* *
Firefighter 3 *
* *
* * * *
* *
ARTICLE 24 Kelly Time
Section 24.1 The Modified
Work Week Schedule requires
the firefighter
to work a standard fifty-six
(56) hour week.
Kelly Days shall be scheduled
and earned in
the same manner as
in accordance with the
procedures outlined in
Article 14.
YEAR OF CONTRACT KELLY DAYS WORK WEEK
* * *
1996 10 51.46
__________
BACKGROUND
The District provides fire suppression, rescue, emergency
medical and paramedic services
to an area of about 48 square
miles in unincorporated parts
of
contracts to provide fire
protection to the city of
The District's fire chief,
Richard Eastman, estimated that the
District's population, based
on figures put together for the
Everett naval base's impact
statement, is about 40,000 to 45,000.
Richard Peters, the local
Union president, testified that he was
told when he was hired in 1991
that the service population was
55,000, and that is the figure
used as the correct answer for a
question on the population
which is on the District's firefighter
I exam. The District maintains seven fire stations,
which is
more than the average for a
department of its size. The District
staffing policy, which is
referenced in the Agreement, is to
maintain on duty a minimum of
11 career firefighters during the
day, and 8 at night.
Of the 36 employees in the bargaining unit, 30 work a 24-
hour shift. With their scheduled Kelly days off, these
employees
have a 51.46 hour
workweek. The other six employees work
on the
day shift. The day-shift employees work from
Four of the day-shift
employees work a 9-hour schedule amounting
to a 45-hour workweek since
they receive a paid lunch hour. They
are required to have their
lunch at the station. They must
respond to calls during their
lunch hour, though if their lunch
is interrupted, they may
resume their lunch hour when they return
to the station. Two of the day-shift employees are on
probation,
since they are in their first
year of employment. Probationary
employees on the day shift
work a 40-hour workweek based on an 8-
hour schedule with an unpaid
lunch hour during which they are
free to leave the
station. Unlike other employees, the
four day-
shift employees working a
9-hour schedule receive an hour of
overtime pay each day which is
built into their schedule.
The District also utilizes volunteers and residents to
provide service otherwise
provided by firefighters. The
volunteers are assigned to
fire stations, but they live at home
and generally work at jobs
outside of the community. If there is
an alarm and their station
responds, the volunteers are called to
come to the station and man
the apparatus. The residents
actually stay at the station
and are supposed to be there from 5
p.m., when the day-shift
employees leave, until
day-shift employees
return. The residents have some
flexibility
in their hours depending on
their personal work schedule or
commitments. Many of the residents actually reside at the
stations. Neither the volunteers nor the residents are
considered by the District to
be employees. Both are paid based
on a point system which is not
considered pay, but rather a
reimbursement of expenses for
items such as mileage on their
vehicles, insurance and
laundering of their uniforms. Chief
Eastman testified that there
are eight residents on duty each
night. Each is paid about $27.50 per night. To provide coverage
on weekend days, the District
utilizes volunteers and residents
and pays them at or near
minimum wage for those hours.
OVERTIME PAY FOR 9-HOUR SHIFT
EMPLOYEES
The District's current monthly base wage for a top-step
firefighter is $4214. For firefighters working a 24-hour shift,
this breaks down to an hourly
wage of $19.10. Day-shift
firefighters, because they
work fewer hours, receive an hourly
wage of $24.30. For their ninth hour of work each day,
day-shift
firefighters receive an
overtime wage of $36.45 per hour. The
current total annual cost of
paying the four day-shift
firefighters for their ninth
hour of work each day is a total of
$39,444. If all six day-shift firefighters were off
probation
and at the top step, the
annual cost of the ninth hour would
increase to $60,684. The additional annual cost to the District
of paying the overtime rate
for the ninth hour of work, rather
than the base rate, is currently
a total of about $13,000, with a
potential cost of about
$20,000. The District's proposal, if
adopted, would end the
practice of paying firefighters assigned
to the daily 9-hour shift an
overtime premium or any premium over
the standard monthly firefighter
salary for their regular 45-hour
weekly schedule.
EMPLOYER'S FINANCIAL CONDITION
Chief Eastman testified that the bulk of the District's
budget comes from property
taxes, and it does not have large
reserves. He further testified that the District paid
cash out
of current revenue for two
stations that it recently built.
Chief Eastman testified that
during the past three years the
District has purchased a new
ladder truck, two new pumpers, and
two new medic units.
DESIRABILITY OF 24-HOUR SHIFT
vs. 9-HOUR SHIFT
Mr. Peters testified that the 24-hour shift is traditionally
the normal shift in the fire
services. Chief Eastman testified
that the 24-hour shift is more
attractive to firefighters than
the day shift. The six least-senior firefighters occupy the
day-
shift positions. There is a letter of understanding in which
the
parties agreed that day-shift
personnel can move to vacancies in
24-hour positions based on
seniority. Mr. Peters testified that
he knows of two day-shift
firefighters who have left to take 24-
hour positions with other
departments. There are a variety of
reasons why the 24-hour shift
is more desirable than a 9-hour
shift despite providing what
amounts to a significantly lower
monthly wage. Employees on a 24-hour shift typically work 8
days
a month so they have to
commute to work much less often than day-
shift employees. Mr. Peters testified that day-shift personnel
are denied the continuity and
family-type atmosphere that 24-hour
employees have. He testified that whereas 24-hour personnel
generally work with the same
lieutenant and crew each shift, day-
shift personnel have to work
with three different crews and with
different lieutenants who have
perhaps different expectations.
Moreover, day-shift personnel
have considerably less days off to
spend on personal or other
activities.
COMPARABLE JURISDICTIONS
One of the primary standards or guidelines enumerated in RCW
41.56.465 upon which an
arbitrator must rely in reaching a
decision is a "comparison
of the wages, hours, and conditions of
employment of personnel
involved in the proceedings with the
wages, hours, and conditions
of like employers of public fire
departments of similar size on
the west coast of the United
States." The statute requires the use of comparable
employers
within the state of
comparable employers exists.
The parties agree that the following eight fire districts
are comparable to the District
at issue here:
__________
Employer's
Representation Representation
of
Population of Population
District Serviced Serviced
(recently combined) 130,000 120,000
__________
In addition, the District advocates that the following fire
district should be viewed as
comparable:
__________
Employer's
Representation Representation
of
Population of Population
District Serviced Serviced
__________
The
comparable:
__________
population
Bothell 30,000
Mountlake
Terrace 26,000
__________
Of the employers suggested as comparable by the parties,
employees classified as
firefighters work exclusively 24-hour
shifts, except in Snohomish
County Fire Districts Nos. 8 and 12,
and King County Fire District
No. 43. In Snohomish
District No. 8, five
firefighters work a 45-hour week and receive
overtime pay only if their
workweek exceeds 45 hours in a week.
In Snohomish County Fire
District No. 12, nine firefighters work
a schedule of four 10-hour
days per week. They receive overtime
pay for hours worked beyond 40
in a week. In King County Fire
District No. 43, two
firefighters work a 45-hour workweek.
These
two individuals receive a 10
percent premium above the standard
firefighter rate.
Chief Eastman testified that Snohomish Fire District No. 4,
a neighboring jurisdiction
with which he had some discussions
about contracting for service,
utilizes a 45-hour schedule and
pays overtime only after 45
hours. The District does not assert
that Snohomish Fire District
No. 4 is a comparable jurisdiction.
POSITION OF THE DISTRICT
The District contends that firefighters assigned to a 45-
hour weekly schedule should
receive the same monthly compensation
as the firefighters working a
24-hour shift. In other words, the
District's position would
eliminate not only overtime pay for the
ninth hour of work in a day,
but also any additional compensation
for that hour over and above
the standard monthly wage rate for
firefighters which is
contained in the Agreement. The District
observes that under the Fair
Labor Standards Act, 29 U.S.C.
§553.220, firefighters can
work various work cycles of more than
the traditional 40-hour
workweek without receiving overtime pay.
The District alleges that the
practice of the comparable
jurisdictions supports its
proposal. The District points out
that none of the three
comparable fire departments that have day-
shift firefighters pay
overtime to firefighters for working any
part of their regular
shift. The District also points to the
practice of Snohomish Fire
District 4, where firefighters work a
45-hour shift and are paid in
the same fashion as the District
proposes in this
proceeding. The District maintains,
while
District 4 is not comparable
with this department, its proximity
and the fact that it
"almost merged with the District" makes its
practice an "other
factor" encompassed by the Act, and thus
relevant to this
proceeding. The District notes that its
45-hour
firefighters receive a premium
of 18.75 percent above the
standard monthly pay, almost
twice the size of the only other
district that pays any premium
at all. The District maintains
that the factor of internal
equity favors its position. In this
regard, it asserts that, in
essence, the 9-hour shift
firefighters work the same
amount of time as the 8-hour shift
firefighters, but receive a
premium that amounts to almost
$10,000 per firefighter above
the amount received by the 8-hour
firefighters. Also, the "blended" average hourly
rate paid to 9-
hour firefighters, including
the overtime premium, works out to
those firefighters receiving
about 35 percent more per hour than
the 24-hour shift
firefighters. Further, even for their
first 40
hours of work, the
firefighters working the 9-hour shift make
more money on an hourly basis
than do lieutenants and almost as
much as battalion chiefs. The District maintains that the day-
shift jobs are entry-level
positions, and a shift premium is not
needed in order to get people
to accept these positions.
POSITION OF THE
The
weekly compensation for
firefighters who are assigned the least
desirable work schedule should
be rejected. It reasons that the
District's proposal would
undermine morale. The
that the 9-hour schedule's
disadvantages outweigh the five hours
of weekly overtime pay which
attaches to the assignment under
conditions negotiated by the
parties in prior agreements. These
disadvantages include more
frequent commuting, less opportunity
for shift trades, and having
to adapt to varying supervisors and
peers on different 24-hour
shifts. The
District's utilization of
day-shift personnel furthers the
District's improper
compensation agreement with "residents."
According to the
violates federal law, 29
U.S.C. §203(e)(4)(A) and 29 CFR
§553.103(a), because an
individual may not be employed as a
firefighter and serve as a
volunteer for the same public agency.
The
supported by comparisons with
firefighters of comparable fire
departments. In this regard, the
the 13 comparable employers
identified by the
hour shift schedule, and only
one of those does so without paying
a substantial wage premium to
firefighters so assigned. Finally,
the
District's robust financial
health, as evidenced by its new
stations and equipment paid
for out of operating revenues, and
its operation of a higher than
average number of stations
considering the District's
size.
DISCUSSION
The District and the
negotiations agreed to provide
an hour of overtime to
firefighters assigned on a
daily basis to work nine hours.
Presumably, that past
agreement was reached voluntarily as part
of an overall compromise
deemed by the parties to be sufficiently
fair to be adopted. The
District bears the burden of
establishing sufficient
justification for a change in this
previously reached
bargain. For the reasons described
below, I
find that there is
insufficient basis for diminishing the
overtime benefit provided to
employees working a 9-hour shift.
The District relies on the statutory criteria of
comparability as well as
"internal equity," which is a factor
frequently considered by
arbitrators. I am not persuaded that
either of these criteria
warrants a reduction in the existing
benefit. Of the eight fire departments which the
parties agree
are comparable to the District
and of the five additional
jurisdictions suggested by one
or the other party,1 only two
fire
departments maintain a 9-hour
daily shift.2 Neither of
these two
jurisdictions, Snohomish
County Fire District No. 8 and King
County Fire District No. 43,
provides a pay premium as generous
as the District here, though
District No. 43 does provide a 10
percent premium to
firefighters working the 45-hour shift.
However, none of the other
suggested or agreed upon comparable
jurisdictions permit the
employer to assign a daily work schedule
of nine hours. Rather, firefighters in all those other
districts
generally work a traditional
24-hour firefighter schedule.
1
Based on the single issue presented and the practice of the agreed-upon
comparable employers, as supplemented
by any combination of
suggested additional comparable employers, I find no reason to lengthen this
Decision with a
discussion of which fire
departments are or not comparable to the District here.
2
In addition, Snohomish County Fire District No. 12 employs firefighters to work
a schedule of four 10-hour days
per week. There, Firefighters
on that schedule receive overtime for working beyond 40 hours in a week. Here,
the
Agreement allows Snohomish
County Fire District No. 7 to assign such a shift under the same conditions.
Snohomish Fire District No. 4
is not a comparable jurisdiction, as the District concedes. No statistics
regarding
Snohomish Fire District No. 4
were proffered. The significance of vaguely described unfruitful discussions
between
Fire District No. 7 and Fire
District No. 4 regarding contracting for services cannot be determined. Based
on the
limited evidence presented
regarding District No. 4 which makes any comparison with District No. 7
particularly
conjectural, significant
weight cannot be accorded to that admittedly non-comparable fire district.
_____
Thus, only a very small minority of even the comparable
jurisdictions suggested by the
District supports its position
that it should be able to
assign a five day/9-hours-per-day
schedule without the payment
of overtime. The District's
suggestion that the Arbitrator
should only focus on the two
jurisdictions that allow such
a regular schedule ignores the fact
that the Union has in the past
negotiated a significant
concession by permitting a
five day/9-hours-per-day schedule,
which is contrary to the
practice in most other comparable fire
departments. It is undisputed that this schedule is a very
undesirable schedule for
firefighters, even with the overtime
compensation which was
previously negotiated. Only the least
senior employees work this
schedule, and they switch to the 24-
hour schedule as soon as an
opening exists for which their
seniority qualifies them. They transfer despite the loss of the
overtime premium, since no
such premium is built into the 24-hour
schedule. There was no evidence that any employees
working the
24-hour shift have ever sought
to transfer to the 9-hour shift
despite the significantly
higher total compensation which the
daily shift provides. Moreover, two employees on the 9-hour
schedule transferred to other
fire departments to work 24-hour
shifts. It is understandable that the parties
negotiated not
only the District's right to
establish such an undesirable shift
for firefighters, but
concomitant premium pay for that shift.
That one allegedly comparable
jurisdiction provides no premium
for such a shift, and an
agreed upon comparable jurisdiction
provides a lesser premium hardly
establishes any sort of trend.
Rather, it indicates that
while most comparable jurisdictions do
not have a daily 9-hour
schedule for firefighters, the few that
do all have different methods
of compensating that schedule. In
these circumstances, it cannot
be said that the District's
compensation for this schedule
is out of line with comparable
jurisdictions.
The District's internal equity arguments are also not
persuasive. Hourly pay for firefighters working 24-hour
schedules with
"Kelly" days off cannot be fairly compared with
hourly pay for employees
working a 5-day-per-week schedule.
Employees working a daily
schedule do not sleep at the fire
station during their assigned
shift. Work assignments for
firefighters in the evening
may not be the same as day-time
assignments. As a result of the recognized special
characteristics of 24-hour
shifts, firefighters routinely have
regular workweeks which exceed
40 hours and do not necessitate
overtime. That is different than most of the rest of
the
nation's work force for which
overtime is standard after 40
hours. In these circumstances, it is neither
surprising that a
department which employs both
firefighters working 24-hour shifts
and firefighters working daily
8-hour shifts pays each the same
monthly salary, nor that it
pays overtime to daily employees for
working more than 8 hours in a
day, while not providing such
overtime to those working the
regular 24-hour shifts. There is
just little significance to a
comparison of hourly pay rates of
firefighters on 24-hour shifts
traditional to fire services with
hourly pay rates of
firefighters working a daily schedule in the
same manner as the rest of the
population.
The additional compensation which 9-hour employees earn in
relation to the 8-hour
employees was apparently negotiated to
reflect the additional hour
which the 9-hour employees must
remain in the fire station, as
well as perhaps the probationary
status of the 8-hour
employees. Your Arbitrator does not find
it
to be inherently unreasonable
that the 9-hour employees would
receive additional overtime
compensation for remaining on duty
during their ninth hour of
their daily schedule. Indeed, this
practice is consistent with
Sections 10.6 and 10.7 of the
Agreement, where the parties
recognized that the work period for
employees is 40 hours in a
7-day cycle and 204 hours in a 27-day
cycle and that employees on
off-duty hours are not required to
respond to alarms. The District can avoid overtime under their
negotiated agreement if it
assigns a schedule of either five 8-
hour days, four 10-hour days,
or the 24-hour shifts with "Kelly
days."
Finally, ability of the employer to pay is a factor often
considered by interest
arbitrators. Here, there is no
contention
that the District is unable to
continue to pay the overtime
benefit to firefighters
working a daily schedule of 9 hours. In
fact , the District's recent
addition of two new stations and its
purchase of expensive
equipment without incurring any debt
reflects a healthy economic
situation.
In sum, the District's proposal to remove the previously
negotiated overtime pay for
firefighters assigned to the 45-hour
shift is not sufficiently
supported considering the referenced
governing standards set forth
in RCW 41.56.465. Neither
consideration of the practice
of allegedly comparable
jurisdictions, nor of other
factors normally considered by
arbitrators, such as internal
equity and ability to pay,
justifies a change in the
existing language.
AWARD OF THE INTEREST
ARBITRATOR
There shall be no change in Article 17, §17.1.
Redmond , Washington
Dated:
September 10, 1998 _/s/_______________________
Alan
R. Krebs, Arbitrator