International Association of
Fire Fighters, Local 1789
And
Interest Arbitration
Arbitrator: Jane Wilkinson
Date Issued:
Arbitrator:
Wilkinson; Jane
Case #: 15834-I-01-00364
Employer:
Date Issued:
BEFORE THE
ARBITRATOR
In the Matter of the Interest )
Arbitration Between )
) ARBITRATOR’S
) AWARD
the
Employer )
) PERC
NO. 15834-1-01-364
and )
)
International Association of
Fire Fighters )
Local 1789 )
)
the
____________________________________)
Appearances:
For the District: For the
Alex J. Skalbania Jeffrey
HolIingsworth
Emmal Skalbania & Vinnedge Perkins
Coie, LLP
Neutral
Arbitrator:
Jane Wilkinson
Attorney and Arbitrator
PMB 21 1
Tel: 503-635-7954
Date of Award:
Table of
Contents
I. Proceedings
......................................................................................................
II. Issues Resolved During the Hearing/Med-Arb
..................................................
III. Statutory Criteria
...............................................................................................
IV. Background Information ....................................................................................
V. Selection of Comparators
..................................................................................
A. Parties'
Proposed Comparators ..............................................................
B. Positions
of the Parties
...........................................................................
C. Arbitrator's
Analysis and Determination - Comparators
..........................
VI. Pay issues (Wages, Number of Steps, Retirement Plan/Social
Security
Replacement. Longevity Pay and
Hours of Work) ............................................
A. Proposals
...............................................................................................
B. Positions
of the Parties
..........................................................................
C. Arbitrator's
Analysis and Award - Wages. Social Security Replacement.
Longevity Pay and Hours of Work
..........................................................
VII. Union Business Issue
.......................................................................................
A. Proposals
................................................................................................
B. Positions
of the Parties .................................................................
C. Arbitrator's
Analysis and Award - Union Business Issue
......................
VIII. Sick Leave for New Hires Issue
.........................................................
A. Proposal ....................................................................................
B. Positions
of the Parties
.................................................................
C. Arbitrator's
Analysis and Award - New Employee Sick Leave Issue .........
IX. Overtime Calculation Issue
................................................................
A. Proposal
....................................................................................
B. Positions
of the Parties .................................................................
C. Arbitrator's'
Analysis and Award on Overtime Calculation Issue
.............
X. Final Award
....................................................................................
WITNESS LIST
For the Employer:
Mark Jucht,
Director of Finance and Administration
Cabot Dow, Labor Consultant
For the
Dennis Thompson, Firefighter
SeaTac Airport, Local 1257, 27 years
Chris Wetherell,
Firefighter/EMT, member of Local 1789 negotiating team
Tim Lively, Lieutenant-EMT and
President, Local 1789
EXHIBIT LIST
Employer Exhibits:
Re: Com parables (Includes Witness Notebook)
1. Demographic Stats
2. Median Household Income
3. Median Home Prices - 1st
Quarter 2002
4. Fire Depts
in
5. Fire Depts
in
6. Fire Depts
in
Valuation
7. Fire Depts
in
8. Fire Depts
in
Income
9. Fire Depts
in
Income
10. 2002 WA State Fire Service
Directory
11.
12. Population Calculation
13.
14. Valuation Calculation
15.
16. City of Spokane West
Plains Annexation Feasibility Study
Re: Union Business
1. Union Business/Positions of
Parties
2. Overtime Term of Agreement
Rebuttal (Witness Notebook)
1.
2.
3. Benchmark Firefighter/EMT
who has completed 13 years of service
4. 2001 Compensation Study
5. Longevity Pay Comparisons
6. 2002 Compensation Study
7. Longevity Pay Comparisons
8. Proposed Firefighter wages
9. 2002 Compensation Study
10. 2002 Compensation Study
11. Incident Reports
12. Other Collective
Bargaining Agreements at SIA
13. IAFF Local 1789 vs.
Spokane Airports (Complaint for wrongful conversion of monies)
14. IAFF Local 1789 vs.
Spokane Airports (Declaration of Tim Lively, William Reeves, Peter
Fairchild)
15. IAFF Local 1789 vs.
Spokane Airports (En Banc)
Supplemental Exhibits (Submitted by the Employer on
16. Spreadsheet wage analysis
17 Spreadsheet with
medical-dental information
18. Spreadsheet wage analysis
Exhibit A.-Certification Letter, Proposals, Statutes
1.
2.
3. Correction document to Local 1789's
Social Security Replacement Plan
Proposal
4.
5. Chapter 41 56 RCW
6. Chapter 391-55 WAC
Exhibit B.- General Information About
1. Information re Airport from website
www.spokaneairports.netxohost.com
2.
3. Title 41 - Aeronautics
4. The Flyer (The Spokane Airports
Bulletin)
5. Airport Budget
6. Map
7.
Exhibit C.-Bargaining History
1.
2.
3. Exhibit A
a.
Exhibit B
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
I.
m.
n.
Exhibit D.-Comparability
1. Position Statement of Local 1789
Regarding Comparability
2. Relevant Excerpts from Recent
Interest Arbitration Awards Discussing
Comparability Issues
3.
4.
wage and
benefits for contract negotiations
5.
6. 1970-1971 CBA
7. 1971-1974 CBA
8. 1974-1976 CBA
9. 1977-1979 CBA
10.
11. Definitions of Geographic Areas
including OMB/BEA
12.
13.
Transportation re 2001 Highway
Urban Area (HUA) population estimates
14. List of Bargaining Unit Members’
relationship to the local economy
15. WA State Council of Firefighters, 63rd
Annual Convention
16. List of Local 1789’s bargaining
members who have resigned
17.
18.
duties
through the
19.
20.
21. Rank of
Size
21 Memo to WSCFF Educational Seminar
Delegates from Chris Heminger re
22.
23. Spokane County Fire District 9
information
24. Picture of
Exhibit E.-Wages/Longevity
1. 2000 Fire Department Salaries
2. Compensation Data
3. August 1999 Consumer Price Indexes
4. 2001 -2003 Wage Increases Received by
Local 1789’s Proposed
Comparators
5.
6. Spokane Airports Position Description
for Airport Firefighter
7. Local 1789’s Position Statement Regarding
Wages/Longevity..
Exhibit F.-Social Security Replacement Benefit
1. Position Statement Regarding Local
1789’s Social Security Replacement
Proposal
2. International Association of
Firefighters, Local 1789 v. Spokane Airports,
146 Wn.2d 207; 45 P.3d 186; 2002
3. 1215/99 Local
1789/Spokane Airports, Case No. 99-2-03838-4; Order Granting
Plaintiff‘s Motion For Summary
Judgment
4. Ass’n of
Firefighters, Local 2088 v. City of
P.2d 475, 1979
5.
Wrongful Conversation of Monies
6. Local 1789/Spokane Airports, Case
No. 99-2-03838-4; Plaintiffs First
Interrogatories Propounded to
Defendants
7.
8.
Lively
9.
10. Chart listing the cost of Employer/Employee
Medicare/Social Security
11.
12.
13.
14.
15. 3rd Proposal Prepared for
16.
17.
18.
19. Local 1789 v. Spokane Airports, Case
No. 99-2-03838-4; 12/2000
20. 07/08/02 Letter
from Byron Waiters, CPA calculating SS (FICA) and Medicare taxes
Exhibit G.-Medical Insurance
1.
Reeves, Local 1789
2. List of
3.
4.
5.
6. Law Enforcement Officers and
Firefighters Health & Welfare Trust
7. Local 1789’s Position Statement
Regarding Medical Insurance
8. Medical Insurance Information for
ARFF Bargaining Unit
Exhibit H.-Hours of Work
1.
2. 23 Day FLSA Cycle Clarification page
3. Local 1789’s Position Statement
Regarding Hours of Work
Exhibit I.-Working Out Of Class
1. Position Statement Regarding Local
1789’s Working Out of Classification
ProposaI
Exhibit J.-Management Rights
1. CBA Provisions Specifying
Disciplinary Standards To Be Utilized By Local
1789’s Comparators
Exhibit K.-Sick Leave
1. WA Advance Legislative Service Statenet, 2002 Wa.
ALS 243; 2002 Wa.
h. 243; 2001 Wa. SB 6426
2. 2002 WSLC Legislative Report.
Article: Collective Bargaining Wins!
3. Local 1789’s Position Statement
Regarding Sick Leave
Exhibit L.-Union Business
1. Local 1789’s Position Statement Re The Airport’s Union Business Proposal
Exhibit M.-Overtime Pay
1. Position Statement of Local 1789 Re The Airport’s Overtime Pay Proposal
Exhibit N.-Interest Arbitration Awards
1.
Exhibit - COMPARABLES BINDER
SIA 1998-2000-Spokane Airport
Board / Local 1789
Sea-Tac 2001
-2003-Local 1257 /
Sea-Tac 1998-2000-City
of Sea-Tac / Local 2919
City of
Spokane Fire Dist. # 1
Spokane Fire Dist. # 8
Spokane Fire Dist. # 9
2000-2002-Spokane
Fire Dist. #I / Local 876
2001-2003-Spokane
Fire Dist. #8 / Local 3711
2001-2003-Spokane
Fire Dist. #9 / Local 2916
2001 -2003-City of
Exhibit O.-ADDITIONAL EXHIBITS (Submitted by Local 1789 on
1. Summary of Economic Data
Comparisons
2. Cheney 2001 Economic Data
3. Declaration of Gary
Hartford and Attachments
4.
5. City of
6.
7.
8. Declaration of Jeffrey P.
Wainwright
9.
10.
11. Summary of
12. Comparison of Local 1789
2001 Economic Data to 2001 Economic Data for Mature
13. Comparison of Local 1789
2001 Economic Data to 2001 Economic Data for Cheney
and
Mature
14. Comparison of Local 1789
2001 Economic Data to 2001 Economic Data for Cheney
and
all
15. Comparison of Local 1789
2001 Economic Data to 2001 Economic Data for Cheney,
16. Washington State
Employment Security Department Study, “A Labor Market and
Economic Comparison of Rural
and Urban
17. 2001 Base Wage Increases
Received By Airport’s Proposed Extra Comps
18. Declaration of Tim Lively
Regarding Social Security Replacement Benefit
19. Declaration of Tim Lively
Regarding Union Business Issue
20. City of
Arbitration Hearing
I. PROCEEDINGS
This dispute, between the
International Association of
Fire Fighters Local 1789 (the
labor
agreement between the two parties with an effective date of
expiration
date of
2000
Collective Bargaining Agreement. The parties reached an
impasse in their negotiations
on a
number of issues. Pursuant to RCW 41.56.450, those issues were certified for
interest
arbitration
by the Public Employment Relations Commission (PERC) and submitted to neutral
arbitrator
Jane R. Wilkinson for resolution. During the course of the hearing, the parties
resolved
the issues identified in the next section. An evidentiary hearing, converted,
by
stipulation of
the parties, to a “mediation-arbitration” (“med-arb”)
on the unresolved issues was
held
in
recorded
and transcribed the evidentiary portion of the proceedings and each party had
the
opportunity
to present evidence, examine and cross-examine witnesses and argue its case.
The parties sent the
Arbitrator additional documents and exhibits on September 12, 2002. The
Arbitrator received the
parties’ post-hearing briefs, limited to 12 pages, on
which
shall be deemed the closing date of hearing.
II. ISSUES RESOLVED DURING THE
HEARING/MED-ARB
At the Arbitrator’s urging, during mediation/arbitration
or otherwise, the following issues
certified
for interest arbitration were resolved voluntarily by the parties, who asked
that the
Arbitrator
memorialize them in this award. They are as follows,
with changes to the 1998-2001
contract
language shown by strikethroughs (for deletions) and double underscore (for
additions).
A. Health Benefits - Union Proposal
The parties agreed to the following language amendments:
In accordance with RCW 41.26
(Law Enforcement Officers’ and Fire Fighters’
Retirement System) or other
applicable State laws, the Employer shall provide a
medical
program for the Employee at no cost to the Employee. The Employer
shall
pay medical, dental and life insurance premiums for all Employees. At the
present
time, medical insurance is provided through the Association of
Washington Cities LEOFF
Health and Welfare Trust [MSC Preferred Plan] for
active
LEOFF I Employees and from either Association of Washington Cities
LEOFF Health and Welfare Trust [MSC Preferred
Plan] or other medical
insurance
that has been selected and made available by the Airport for LEOFF
II
Employees. Dental and life insurance coverage for both
LEOFF I and LEOFF II
employees
shall be selected and made available to other Airport Employees.
The Employer agrees to pay
dependent medical/dental premiums for Employee’s
dependent
up to the total premium amount charged for LEOFF I firefighters,
including
Employee and dependent/s, by the Association of Washington Cities
LEOFF Health and Welfare Trust
FMSC Preferred Plan] and the dental program
selected
and made available to other Airport employees and their dependents.
The Employer reserves the
right to choose the most economical medical and
dental
insurance providers of substantially equivalent coverage as agreed upon
in
the current co n tract . Further, any determination by the applicable insurance
company
which, as a result of Employee’s failure to follow the procedures set
forth
by such insurance company, reduces benefits or otherwise penalizes
Employee shall be the
responsibility and liability of such Employee and will not
be
the liability of Employer.
Employer agrees to provide
Union involvement in the evaluation process of
medical/dental
health care providers prior to any changes being made in the
current
coverage plans.
B. Working out of Classification - Union Proposal
The
C. Approved Leaves of Absence, Sick Leave (both parties made proposals)
As to the first paragraph regarding family leave, the
parties agreed to withdraw their
respective
proposals. Instead, they will insert language stating that the maximum leave
permitted
under that section will be coextensive with state and federal law.
D. Management Rights - Union Proposal
The
article.
In agreeing to a settlement, the
apply
only to the discipline and discharge of employees.
E. Term of Agreement
The parties agreed that the term of the Agreement would
span the years 2001 though
2003, subject to any mutually
agreed upon modification.
III. STATUTORY CRITERIA
In RCW 41.56.465, the
apply
the following criteria when determining the terms of a new collective
bargaining
agreement
for fire fighters (emphasis in boldface added):
(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 take into consideration the
following
factors:
(a) The
constitutional and statutory authority of the employer;
(b) Stipulations
of the parties;
(c)(ii) For
employees listed in RCW 41.56.030(7)(e) through (h),1
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
exists
within the state of
considered;
_____________
1 RCW 41.56.030(7)(e)
through (h) states in relevant part that:
"Uniformed personnel" means:
.... (e) fire
fighters as that term is defined in RCW 41.26.030; (f) employees of a port
district in a county
with a population of one
million or more whose duties include crash fire rescue or other fire fighting
duties;(g) employees of fire departments of public employers who dispatch
exclusively either fire or emergency medical services, or both; or (h)
employees in the several classes of advanced life support technicians, as
defined in RCW 18.71.200, who are employed by a public employer.
(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. For those
employees
listed in RCW 41.56.030(7)(a) who are employed by the governing
body
of a city or town with a population of less than fifteen thousand, or a county
with a
population of less than seventy thousand, consideration must also be
given
to regional differences in the cost of living.2
______________
2 Employees listed in RCW 41.56.030(7)(a) are law enforcement officers in jurisdictions of a
specified size.
The Legislative purpose,
referenced as a criterion in the above quoted statute and found at
RCW 41.56.430, states:
Uniformed personnel -- Legislative
declaration.
The intent and purpose of
chapter 131, Laws of 1973 is to recognize that there
exists a
public policy in the state of
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
uninterrupted
public service there should exist an effective and adequate
alternative
means of settling disputes.
In resolving the issues in this dispute, whether or not fully
articulated herein, the Arbitrator
has
been mindful of these criteria and has given consideration to all of the
evidence and
arguments
presented by the parties relative to these criteria. The Arbitrator also
recognizes
that
interest arbitration is an extension of the collective bargaining process. The
arbitration
should
endeavor to approximate the result that reasonable parties themselves would
likely have
reached
in good faith negotiations. Eg.,
Local 2876), PERC No.
15012-1-00-333 (Krebs, 2000); City of
PERC
No. 1 1866-1-95-253 (Lumbley, 1997).
IV. BACKGROUND INFORMATION
The
RCW
14.08. It is required to provide a fire response
by the Federal Aviation Administration
(FAA).
The FAA categorizes the airport as a “C” airport, which is much smaller than
SeaTac’s
“Ex”
category. The core response required by the FAA is to
combat aircraft fires, but the
Airport chooses to provide
additional service. There is no resident population except for 480
inmates
of a jail population located on airport property. The airport is also located
within the
boundaries
of Spokane County Fire District 10, whose jurisdiction can overlap. The
workload of
the
bargaining unit is low, with an average call volume of 1 to 2 calls per day,
many of the calls
are
not of an emergency nature.
The
are
two unfilled vacancies.
The parties’ last contract expired on December 31, 2000.
The parties negotiated for, but
were
unable to reach agreement on a successor contract, but at the outset of the
hearing they
stipulated
to a contract term of three years, beginning
31,
2003.
The Executive Director of the Public Employment Relations
Commission (PERC) certified a
number
of issues for interest arbitration and this proceeding concerns those issues;
some
issues
that the
Employer disagreed were held
in abeyance pending PERC’s determination of the
Union’s unfair
labor
practice charges. Those issues were not considered by the Arbitrator in these
proceedings
and are not addressed in this award.
V. SELECTION OF COMPARATORS
A. Parties’ Proposed Comparators
1. Union’s Proposed Comparators
The Union proposes the
following jurisdictions as comparators to the Spokane International
Airport:
SeaTac Airport Fire Department3 Spokane
Fire District No. 9
Spokane Fire District No. 8 City
of Pasco
Spokane (Valley) Fire District
No. 1 City
of Yakima
City of Spokane
_____________
3 During the med-arb,
the Arbitrator discouraged the Union from pursuing SeaTac Airport as a
comparator because the cost of living and general wages are substantially
higher in the Seattle area, as compared with Spokane. The Union did not
continue to advance this comparator.
2. Employer’s Proposed Comparators
The comparable jurisdictions
proposed by the Employer are:
City of Walla Walla City
of Sunnyside
City of Moses Lake Spokane
Fire District No. 8
City of Cheney Spokane
Fire District No. 9
City of Wenatchee Chelan
Fire District No.14
City of Pasco
____________
4 During the med-arb,
the Arbitrator discouraged the employer from pursuing Chelan Fire District No.
1 as a comparator, believing it was too far on the fringe, and the Employer
heeded this advice. Also during med-arb, the Employer
indicated it was willing to compromise on comparators by dropping the City of
Wenatchee and adding the Union-preferred City of Yakima. The Union would not
agree to the proposed compromise, but the Employer adhered to this revised set
of comparables thereafter, which it referred to as its “compromise” comparator
group.
B. Positions of the Parties
Union’s Position
The Union focused on the local Spokane labor market, and
added to that three municipal
fire
departments in the state that serve airports. The Union contends its comparator
selection is
preferable
because:
1. The Airport lacks a “resident” population or
“assessed valuation;” therefore, the
methodology
used by interest arbitrators is not applicable to this case.
2. Arbitrator McCaffree faced the same dilemma in an interest arbitration
dispute
involving
the
including
the largest entities (cities of
market.
3. The local labor market
approach makes sense because bargaining unit members train
with
and live close to the members of the bargaining units of the City of
Fire
District (FD) No. 1,
are
virtually the same.
4. Several former members of
the bargaining unit have resigned to take employment with
other
compete
within the
5. The parties bargaining
history has reflected their agreement to use Spokane area fire
departments
as comparators, and in particular the City of
through
D-9. Arbitrator McCaffree considered the parties
bargaining history in the SeaTac
Airport interest arbitration
proceeding previously referenced.
6. Using the City of Spokane
is also appropriate because it is one of the “owners” of the
Airport and if the proposed
annexation takes place, the Airport will be solely within the
City’s
jurisdiction.
7. The
comparators are balanced, given that Spokane FD 8, which has negotiated only
two
labor agreements, is the lowest paying comparator proposed by either party by a
significant
margin. But, if Spokane FD 8 is utilized, mature bargaining units also should
be
used.
8. Cheney also could be
considered a local labor market comparator, except that it does
not
employ any fire fighters even though it has a pay scale for fire fighters. The
lowest
paying
bargaining unit member is a Lieutenant (Fire Officer) position; this has been
the
case
for at least 10 years. If Cheney is used in this case, Lieutenants should be
used as
the
benchmark classification for comparison purposes.5
____________
5 The Arbitrator notes, however, that neither
party submitted a spreadsheet showing Lieutenant’s pay among their proposed
comparators.
9. Although
going beyond the
arbitrator
choose to do so,
departments
serve their local airport and perform airport-related ARFF duties; those cities
are
also located in metropolitan areas of
of
100,000.
10. The Employer
inappropriately proposes comparators located in relatively rural, low
paying
areas (
workers
in these markets earn less than urban labor markets such as
11. The Employer’s view fails
to recognize the unique work and specialized skills and
training
(ARFF work) of Local 1789 bargaining unit members.
Employer’s Position
To select comparators, the
Employer focused on the population serviced, assets protected,
size
of bargaining unit, as well as geography. The Employer contends:
1. There
are 2000 employees at the airport, but not at the airport all at one time.
Passenger traffic plus “meters
and greeters” brings the daily population up to about 8000
people,
the Employer estimates. Again, not all 8000 people are at the airport at one
time.
2. Regarding structure
valuation at replacement value, the airport estimates its terminal,
hangars
and other facilities to be worth about $270 million. (This errs on the high
side
because
it used the construction cost of Concourse C, $186 sq. ft., structures such as
hangars
or the parking structure have a much lower replacement cost). Buildings are
insured
for $134 million. For aircraft, the Employer used a figure the City of Spokane
used
in
its annexation study, which was $150 million.6 The Employer also
considered median
family
income and other economic indicators.
____________
6 By comparison, the Union estimated the
value of aircraft parked at the airport on any given night at $996 million
(based on listed values for type of aircraft; the Union witness testifying to
this did not know whether these were new or depreciated values). According to
the Union, the total property value estimate, not including land, military
aircraft, and other personal property at the airport, is roughly $1.5 billion.
See Exh. D-19.
3. The Employer calculated a net
hourly wage analysis that included longevity at the 13-
year
benchmark (the average longevity of the bargaining unit). (The hours exceed the
hourly
of the comparables, but the pay is high enough to overcome that, the Employer
asserts;
also consider the substantially lower workload).
C. Arbitrator’s Analysis and Determination - Comparators
Having a list of suitable comparator jurisdictions is
necessary for a full evaluation of all four
issues
certified for interest arbitration. Therefore, a comparator list will be
selected at the outset
of
this discussion. The Employer is a unique employer because it lacks an
appreciable resident
population
and does not have an assessed valuation or other readily determinable valuation
that
could be considered comparable to an assessed valuation. The airport is jointly
owned by
the
City of Spokane and Spokane County. It pays no taxes and is not carried on the
assessor’s
books.
The training and typical duties of the bargaining unit fire fighters differ
from other fire
fighters
in certain respects. On the training side, airport fire fighters must be
trained in Aircraft
Rescue and Fire Fighting
(ARFF); it is required by the FAA. Aircraft fires involve highly
combustible
fuels, plastics and magnesium. The aircraft itself is a
expensive item that is
damaged
easily (when measured in dollars) by fire. On the other hand, airport building
and
aircraft
fires are rare, and most of bargaining unit member’s duties’ involve emergency
medical
response
or non-emergency incidental duties.
As the parties well know, comparability is not precisely
defined by statute, but the statute
does
require the Arbitrator to compare “like personnel of public fire departments of
similar size
. . . .” As both parties
reminded the Arbitrator, when determining comparability, arbitrators give
the
greatest consideration to population served, geographic proximity or labor
market, and
assessed
valuation. See, e.g.,
I 13831 -1-98-299 (Buchanan,
1999); City of Bremerton and Bremerton Police Officers’ Guild,
PERC No. 12924-1-97-279 (Axon,
1998); City of Centralia and lnternational
Association of
Firefighters, Local No. 457,
PERC No. 1 1866-1-95-253 (Lumbley, 1997); Spokane
County and
WSCCCE,
Council 2, PERC No. 101 59-1-94-235 (Levak, 1995).
There is no set number of comparators needed, but this
Arbitrator prefers a minimum of
five.
Other arbitrators have expressed a similar preference. Eg.,
City of Centralia, supra (the
arbitrator
selected four comparators, stating he would prefer a greater number if more
that were
“very
comparable” existed); City of
Local 1296, AAA 75 300 00225
96 (Krebs, 1997) (the arbitrator noted that using only four
comparators approached
“the borderline of a minimal number,” but that six comparators were
sufficient
for the case);
screen
yielded only four comparators; the arbitrator therefore added more to the
list).
Comparability determination is rarely an easy task and in
this case it is extremely difficult
because
of the unique character of the Employer. The Spokane Airport Fire Department
does
not
have truly “like personnel” comparable to those of other jurisdictions of the
State, save for
fighters
in
located
in the highest cost of living area in the State, while
living
urban areas.
The Employer presented evidence that the workload of its
fire department is considerably
lighter
than other fire departments, primarily because there are few fires at the airport;
most of
the
work is EMT work or handling miscellaneous non-emergency tasks, and even then,
the
number
of incidents per year are much lower than the other fire departments or
districts under
consideration
here. The Union counters this evidence by showing that the airport fire
fighters
are
unique in the training required for the job. They must have specific
FAA-mandated “AARF”
training
in order to respond to aircraft emergencies. It is fortunate that the airport
has not had
an
aircraft emergency in recent memory; nevertheless, it must constantly be
prepared for one.
The Union also notes that
under the status quo, bargaining unit members work more hours per
year
than many or most of the proposed comparators.
Another difficulty with selecting comparators in this
case is that the airport has almost no
resident
population served, nor does it have an assessed valuation. Both parties
attempted to
provide a
surrogate “population” and “valuation” for the airport. Although those efforts
were not
without a
rational basis, they could easily be challenged as inadequate, particularly
with respect
to
the evidence on valuation. Arbitrators consider “assessed valuation” and
sometimes other
indicators
of revenue for the purpose of finding jurisdictions of comparable wealth under
the
theory
goes that all else being equal, the jurisdiction having ample resources will
pay higher
wages
than the jurisdiction that perennially struggles to balance its budget. The
relative
assessed
valuations may also reflect, with some variation, the local cost of living. The
population
served is another frequent indicator of comparability since there can be a
correlation
between
wages and the jurisdiction’s population. Typically, the arbitrator compares the
resident
population
of various jurisdictions, as opposed to the transient population. About 480
inmates
in a
prison located on Airport land comprise the sole “resident” population of the
Airport.
Despite these difficulties, the Arbitrator nevertheless
must select comparators. The parties
agree7
on the following comparators: Spokane Fire District 9, which is geographically
proximate
to the
the
cities of
local
commercial airport.
____________
7 The Arbitrator is referring to the
Employer‘s “compromise” list of comparators in her assumption concerning the
jurisdictions to which the Employer would agree.
The demographic, bargaining unit size and other pertinent
information of the other
proposed
comparators are shown in the next table. As is seen, the Arbitrator is
eschewing the
use
of assessed valuation and population served because of they do not work well
with a stand-
alone
airport jurisdiction.
|
Comparator |
BU Size |
No.
Incidents Per Year |
No. Incidents Per BU Member |
City Median Household Income |
City Media Per Capita Income |
County Media Per Capita Income |
County Median Home Price |
|
|
|
|
|
|
|
|
|
|
Spokane Airport |
16+2 |
409 |
25.6 |
32,273a |
18,451 |
19,233 |
106,400 |
|
|
|
|
|
|
|
|
|
|
Joint Comps |
|
|
|
|
|
|
|
|
Pasco City |
39 |
2840 |
72.8 |
34,540 |
13,404 |
15,459 |
134,200 |
|
Spokane #9 |
29 |
2145 |
74.0 |
n/a |
n/a |
19,233 |
106,400 |
|
Spokane #8 |
12 |
783 |
65.3 |
n/a |
n/a |
19,233 |
106,400 |
|
Yakima City |
84 |
|
|
29,475 |
15,920 |
15,606 |
105,900 |
|
Union Proposed Comps |
|
|
|
|
|
|
|
|
Spokane City |
324 |
|
|
32,273 |
18,451 |
19,233 |
106,400 |
|
Spokane #1 (Valley) |
121 |
|
|
32,273 |
18,451 |
19,233 |
106,400 |
|
Employer Proposed Comps |
|
|
|
|
|
|
|
|
Walla Walla |
44 |
5783 |
131.4 |
35,900 |
15,792 |
16,509 |
125,00 |
|
Moses Lake |
25 |
?b |
? |
36,467 |
16,644 |
15,037 |
93,000 |
|
Sunnyside |
12 |
1862 |
155.2 |
27,583 |
10,366 |
15,606 |
105,900 |
|
Cheney |
?c |
1111 |
(uses volunteers) |
28,047 |
12,566 |
19,233 |
106,400 |
|
Wenatchee |
30 |
1927 |
64.2 |
34,897 |
19,498 |
19,273 |
134,900 |
|
|
|
|
|
|
|
|
|
a For "City Median Household"
Income, the Arbitrator used the City of
b An Employer exhibit states that Moses Lake
has 500 incidents per year, but the Arbitrator believes that this only is the
number of fire incidents per year.
c As the Arbitrator understands it, Cheney
has an officers-only bargaining unit; she therefore surmises the size of the
bargaining unit is in the single digits; she was unable to locate data,
however, on the exact size.
The Arbitrator is not particularly troubled by the fact
the comparator list does not include
stand-alone
fire departments, or that only two comparator fire departments have fire fighters
with
AARF training and service their municipal airports. Although the
fighters
have the specialized training required by the FAA, they mostly have the same
skills,
same
training and perform the same services as fire fighters in other bargaining
units in the
state.
The Arbitrator notes, for example, that the
Department describes the job
of "fire fighter" (Code 33-2011) as:
Control and extinguish fires
or respond to emergency situations where life,
property,
or the environment is at risk. Duties may include fire prevention,
emergency
medical service, hazardous material response, search and rescue,
and
disaster management.8
______________
8 See the WEB site for the Washington
Employment Security Department, Labor Market Information, at http:/hwww.wa.gov/esd/lmea/.
This job description could easily fit the
other
fire department or fire district bargaining units in the State of
that
when the Legislature referenced “like personnel” in RCW 41.56.465, it meant
personnel
with
wholly identical skills, training and work assignments. Although the
fighters
have the additional training and certification required by the FAA and also
work longer
hours,
the job they perform on routine basis is similar to other fire fighter
bargaining units,
except
that their workload is, according to the Employer’s evidence, considerably
lighter.
Because, the
Arbitrator’s opinion,
substantial consideration should be given to fire departments of
comparable
size, Le., having a comparable number of paid personnel. This criterion is
specifically
spelled out by the Legislature in the statute. To reiterate, RCW 41.56.465
requires
interest
arbitrators to look to “public fire departments of similar size.” Arbitral
precedent has
used
population and assessed valuation as key areas of inquiry, and the statute is
flexible
enough
to allow this interpretation. Nevertheless, the only specific criterion in the
statute is
“public
fire departments of similar size.” Indeed, experience suggests there is a
correlation
between
the number of fire fighters employed by a jurisdiction and its wages.
There also is a correlation between location and wages. A
small city fire department
located
on
pay
less than the City of
jurisdictions
located on the 1-5 corridor tend to pay more than similarly sized jurisdictions
that
are
far removed from this busy transportation network.
CD (Axon, 1999); City of
(Nelson, 2001
); Intercity Transit (Transit Workers) (Krebs, 1995); City of
(
Thus, some consideration (but not exclusive
consideration) should be given to the local
labor
market, which has a bearing on wages. The
emphasis
on local labor market comparators, citing Arbitrator McCaffree’s
Police award to support its
assertion. See, Port of Seattle (Teamsters Local 717), PERC
15432-1 -00-348 (McCaffree, 2001 ). The
Arbitrator’s reading of that award, however, indicates
that
Arbitrator McCaffree also considered the size of the
police force, just as the Arbitrator will
be
doing in this proceeding, although he did include jurisdictions with
considerably larger police
forces
as comparators. The Arbitrator will be likewise doing so, given that the three
of the four
stipulated
comparators are much larger than the Airport’s bargaining unit.
This consideration cuts both ways for the parties. The
City of
labor
market and is the wage leader. The Employer opposes this comparator because of
its
large
size. The City of
because
of its small size and because it currently only employs a lieutenant equivalent
and
above
in its bargaining unit. Otherwise, it uses volunteers. The Arbitrator will
include both of
these
jurisdictions, believing the objectionable considerations of each tends to be
canceled by
the
other.9 The Arbitrator
believes using four local labor market comparators is appropriate, so
long
as the final list is balanced. The Arbitrator rejects the more distant
(
large,
local fire departments.
______________
9 The Arbitrator does not agree with
the
party
proposes to deviate merely because it doesn’t like the wage package of the
comparator, but lacks any other particularly good reason.
The local labor market list should be balanced by two
additional comparators closer to the
size
of the Airport bargaining unit. The Employer has offered
being
demographically most similar to the Airport. Median per capita and household
income in
Wenatchee is similar to the
Spokane area, and the size of its bargaining unit would pass a
+100% screen. The Arbitrator
rejects Sunnyside as being too demographically dissimilar. The
choice
between
record,
it does not have a current labor agreement in place with its fire fighters. The
Employer’s
method
of “aging” wages from the expired contract is problematical, in this
Arbitrator’s opinion.
In sum, the final list of
comparators that the Arbitrator will use in this proceeding is as follows:
City of
City of
VI. PAY ISSUES
A. Proposals - Wages, Number of
Steps, Retirement Plan/Social Security Replacement,
Longevity Pay and Hours of Work
1. Wages, Number of Steps:
The Employer proposed the 2001, 2002 and 2003 year wage
increase per step to be based
on
seventy percent (70%) of the current year CPI-U (West “C”) index for the month
of August,
with a
minimum of 1.5% and a maximum of 2.5% per year.
The Employer also proposes changing the salary schedule
to seven steps (from five steps)
to
align it with other Airport employees.The
The Union proposal was as
follows:
100% West Coast B/C CPI
(August), minimax 3% - 5%, plus, for 2001, an
additional
.75% over the COLA increase, and for 2002, an increase of 5% over
the
COLA increase. Specifically, the
to
the contract:
Effective on
be increased
by 100% of the West Coast BIC CPI for the month of August, with
a
minimum increase of 3% and a maximum increase of 5%. Additionally,
effective
on
be
increased by an additional 0.75% over and above the COLA increase set
forth
above.
Effective on
be
increased by 100% of the West Coast B/C CPI for the month of August, with
a
minimum increase of 3% and a maximum increase of 5%. Effective on January
1, 2002, there will be an
additional base wage increase for all bargaining unit
members
of 0.5 0%.
Effective on
be
increased by 100% of the West Coast B/C CPI for the month of August, with
a
minimum increase of 3% and a maximum increase of 5%.
The
2. Retirement Plan/Social Security Replacement
The
The Employer agrees to pay six
and two tenths percent (6.2%) of the taxable base
wage
on behalf of the members of the bargaining unit up to the annual maximum
limits
for Social Security to the
lieu
of Social Security. If the percentage contribution for Social Security changes
during
the term of this agreement, the Employer’s percentage contributions to the
fund
would change accordingly.
The Employer also agrees to
pay an amount equal to 1.45% of the employees
Taxable Wage Base to employees
hired prior to April 1, 1986. This payment
represents
the moneys formerly paid by the Employer for the employees Medicare
contributions.
Employees hired on or after
Medicare
coverage.
The Employer opposed the
3. Longevity Pay
The Employer proposed reducing
bargaining unit member longevity pay by amending the
contract
language’s longevity pay rates as shown (double underline indicates new
language,
strikethrough
indicates language to be stricken):
After 5 years 13 2% of Step 5
After 10 years 2 4% of Step 5
After 15 years 3 6% of Step 5
After 20 years 2 8% of Step 5
After 25 years 9 10% of
Step 5
The
4. Hours of Work
The
(double
underline indicates new language, strikethrough indicates language to be
stricken):
In accordance with the Fair
Labor Standards Act, the regular schedule will
consist
of three consecutive nineteen (19) day work cycles. The average work
week
for r the Fire Department employees shall be 51.53 hours per week. The
work
cycle shall be twenty-three (23) days for employees on twenty-four (24)
hour
duty shift. Not to exceed (174) hours. There will be three work shifts utilized
by
the Employer, Shift A. Shift B, and Shift C, All Employees will work a cycle of
twenty-four
(24) hours on duty and forty-eight (48) off duty. Thus, during each 23
day
FLSA cycle, two work shifts will be regularly scheduled to work eight (8) 24
hour
shifts during that cycle and one work shift will be regularly scheduled to
work
seven (7) 24 hour shifts during that cycle. Shift times will start at 0715 and
end
at 0715 the following day. Employees may relieve each other coming on and
going
off duty not to exceed 15 minutes unless approved by the shift officer. The
scheduled
Kelly day cannot be accrued, carried over, nor can it be substituted for
sick
days. If an Employee is sick on the scheduled Kelly day, the Kelly day will
not
be rescheduled. Work hours will consist of one hundred forty four (111)
hours
per each nineteen (19) day cycle, Work hours will consist of
(174) hours
per
each twenty-three (73) day cycle , through the use of vacations, floating
holidays,
military leave, emergency leave, other days off provided and authorized
by
law, or an additional day off, if necessary. Additional shifts off will be
scheduled
at least thirty (30) days in advance whenever possible.
Each firefighter will receive
ten (10) Kelly Days per fifteen (15) FLSA cycles.
Firefighters will receive
Kelly Days only during those FLSA cycles when, if they
did
not receive a Kelly Day, they would be regularly scheduled to work a
sufficient
number of shifts (8) so that they would otherwise exceed the FLSA
overtime
threshold for that cycle. Firefighters will choose their Kelly Days by
seniority
and in accordance with the Article Approved Leaves of Absence. If an
Employee is scheduled for a
Kelly Day off and his/her time is reduced to one
hundred
forty four (111) hours or less during the nineteen (19) day cycle; (174)
hours
or less during the twenty three (23) day cycle-then in effect by some other
means,
such as vacations, military leave, or any other lawful means, the Kelly
Day off will not be canceled.
Any such leave taken during the Kelly Day Cycle will
be
on a second call-in basis if applicable as defined in Vacation Article.
The Employer opposed the
B. Positions of the Parties
Employer’s Position
The Employer contends that its
economic position is reasonable because:
1. The “status quo” with
respect to social security replacement is unique. No social
security
replacement payments were made under the old contract; instead, as the
result
of litigation, the payments were made retroactively. With no social security
replacement,
the Airport’s proposal would nonetheless place the bargaining unit 5.6%
above
the comparator average, with medical and dental included, and 4% above
average
without the inclusion of those items. The Airport‘s proposals would allow the
bargaining
unit to keep pace with changes in the cost of living. If social security
replacement
is set at 25%, the bargaining unit’s wage (including medical and dental)
would
be 9.1 % over the comparator average for 2001, and 7% above for 2002. The
inclusion
of social security replacement is clearly unjustified.
2. The Arbitrator should bear
in mind that the “replacement” payments presently
under
consideration represent far greater value than the tax payments originally made
to
the IRS. Social Security is not a vested retirement system, and the tax
payments
may
or may not have inured to the benefit of individual fire fighters at some
future
date.
The replacement payments vest immediately and can be invested in ways to
virtually
guarantee the principal. Furthermore, as a result of their opt-out decision,
the
Union members now no longer
make their previously required non-deductible 6.2%
FICA contribution-they thus
received a 6.2% “raise” by opting out in that they now
recover
that additional amount from each paycheck.
3. The reason the Employer
proposed changing the number of steps in the salary
schedule
was to conform the fire fighter bargaining unit pay schedule with the pay
schedules
of other Airport employees.
The Employer opposed the
1. The number of hours worked
has been accounted for in bargaining unit
compensation
package; the
2.85%.
2. This increase cannot be
supported by a comparator analysis.
3. The number of hours worked
by fire fighters at the Airport is reasonable given that
their
workload is so light. The uncontroverted evidence
shows that the historical
volume
of emergency, fire, and medical calls to which the Airport Fire Department
responds
is so low as to be virtually unique. There were only nine calls involving fire
incidents
per year in 1999, 2000 and 2001. There were on average approximately 2
aircraft
calls per month, almost all of which involved the fire fighters standing by and
the
aircraft landing without incident. The overwhelming majority of the calls to
which
the
Airport fire fighters respond are Emergency Medical Service/Rescue calls or
“assist”
calls, which involve activities such as fire fighters picking up mace or other
restricted
items that have been collected at the Airport screening areas. Considering
all
types of calls, including, for example, false alarms or trips to pick up items
seized by
security
personnel, the Airport Fire Department on average only responds to
approximately
one call per day. Accordingly, the evidence demonstrates that there is
no
justification for altering the status quo and reducing the hours worked by the
Airport
fire
fighters.
Union’s Position
The
summarized
next:
1. Bargaining unit members
deem it imperative to maintain their current level of pay
and
social security replacement benefits, and to maintain its relative standing vis-a-vis
its
comparators.
2. All the comparators
proposed by both sides received year 2001 base wage
increases
in excess of the 2.9% that bargaining unit members would receive with an
increase based
on 100% of the CPI.
3. To the extent that data is
available, it is clear that the base wage increases that
these
same comparators will receive in 2002 and beyond will be close to or will
exceed
the
cost of living as well.
4. Retaining the longevity and
social security replacement benefits will simply allow
employees
to maintain its current position relative to the comparator group. Any
reduction
would be contrary to the intent of RCW 41 56.430.
5. Maintaining the status quo
regarding the social security replacement benefit is
particularly
important, given the protracted and legal proceedings needed to secure
this
benefit. One of the important factors which led to the State Supreme Court’s
ruling
in favor of Local 1789 with respect to the above-referenced litigation was the
fact
that
there was strong evidence in the record in that matter (including a Declaration
from a
former Airport Fire Chief) that the Airport considered social security benefits
to
be
an integral part of the overall compensation that it paid to the members of
Local
1789’s bargaining unit; that
this subject had been discussed by the parties during
previous
collective bargaining sessions; and that if this compensation was taken away
from
the members of Local 1789’s bargaining unit without being replaced, they would
be
significantly damaged. See Union Exh. F-2 through F-9. The elimination of any
portion
of this benefit is the equivalent of a reduction in employee compensation.
6. Moreover, a modification of
the social security replacement benefit coupled with a
CPI-linked wage increase would
cause the bargaining unit to fall behind its comparator
group.
See Union Exh. 0-12 through 0-15, 0-17 and E 4 .
The
1. The total hours worked
(2756) for bargaining unit members was greater than any
comparator
proposed by either party, except for the relatively new
bargaining
unit. The average difference is 4.5%.
2. The
year,
close to the comparator average, in a way that allows the Airport to meet its
fire
fighting
needs efficiently. (See Union Exh.
A-2).
3. The parties would utilize a
23-day FLSA work period rather than the current 19-
day
FLSA work period. Bargaining unit members would receive “Kelly Days” during
those
work periods (which would be 2 out of every 3 work periods) when such Kelly
Days would be necessary in
order to reduce the number of hours worked by a
bargaining
unit member below the applicable FLSA overtime threshold. The proposal
would
retain the current three platoon system.
4. The
replacement
and compensation standing; the hours of work is secondary.
The
salary
schedule because in the last contract, the parties agreed to increase the
number of steps
from
three to five. Cabot Dow, testifying for the Employer, did not know how the
Employer’s
proposed
new step structure would affect employees nearing the top of the salary
schedule.
The Employer presented no
compelling reason for changing this recently negotiated item and it
had
not even thought out the implications of its proposal.
The
of a
pay cut that has no rational basis.
C. Arbitrator’s Analysis and Award - Wages, Social Security Replacement,
Longevity
Pay and Hours of Work
1. Comparator Wage Analysis
The net hourly wage paid in
2001 by the comparators the Arbitrator previously selected, as
compared
with the wage paid in 2000 to the
next
table (Table II). Medical benefits have not been included in this analysis
because the
spreadsheets
submitted by the Employer showing the cost of those benefit did not include two
of
the comparators the Arbitrator selected here (Cities of
addition,
the Arbitrator has questions about the data presented, in particular why the
cost of
insurance
is significantly lower outside of the
units
are receiving significantly inferior benefits, or is it because the cost of
insurance in those
areas
is simply less? On the other hand, the Arbitrator is mindful that the health
and dental
benefits
of this bargaining unit are excellent, and in terms of cost to the employer,
exceed that
of
all of its comparators, with the possible exception of the two comparators for
which data is
lacking.
The Arbitrator studied the medical benefits in the
collective
bargaining agreement and although no cost to the employer is shown, it appeared
that
those benefits were close to, but slightly less generous, than those received
by the
Table II
|
Jurisdiction |
Hourly |
Total Annual Salary |
|
|
$18.51 |
$51,008 |
|
Comparators (2001)10 |
|
|
|
City of |
$20.32 |
$52,836 |
|
|
$15.09 |
$43,937 |
|
|
$21.73 |
$57,187 |
|
City of |
$23.99 |
$58,374 |
|
City of |
$21.03 |
$56,197 |
|
City of |
$19.51 |
$48,691 |
|
City of |
$18.82 |
$48,931 |
|
City of |
$18.96 |
$49,296 |
|
Average:
|
$19.93 |
$51,931 |
|
|
-7.67 % |
-1.81% |
_____________
10 The pay figures shown in Table II are
taken from the Employer’s exhibits. The pay rates the Union presented for
Pasco, Spokane FD No. 8, and Yakima were slightly lower than the Employer‘s;
therefore using the Employer‘s figures did not prejudice the Union. The
A computation based on 2002
comparator pay rates produced similar results, assuming a CPI-
based
increase in the
2. Other Considerations (Statute explicit or “normally or traditionally
taken into
consideration in the determination of wages, hours, and
conditions of employment”)
a).
Changes in the Cost of Living
The applicable (August to
August) CPI-U (West Coast “C”) change for the years of the
contract
under consideration are as follows:
Year CPI
change11
2001 2.9%
2002 2.7%
2003 1.6%
_____________
11 The 2001 and 2002 CPI escalators are a
matter of record. The 2003 escalator, which was unavailable at the time of
hearing but has since been released by the federal Department of Labor, Bureau
of Labor Statistics (BLS), shows that the August 2001 (111.2) to August 2002
(113) increase in the CPI-U, “West-Size Class BlC”
was 1.6%.
See the BLS WEB site at
http://www.bls.govlcpilhome.htm#data where the Arbitrator‘s input query produced
the following result:
|
12 Months Percent Change |
Year |
Aug |
|
Series Id: CUURX400SAO, CUUSX400SAO |
1998 |
1.0 |
|
Not Seasonally Adjusted |
1999 |
2.6 |
|
Area: West - Size Class B/C |
2000 |
2.7 |
|
Item: All items |
2001 |
2.7 |
|
Base
Period: DECEMBER 1996=100 |
2002 |
1.6 |
b). Ability to
Pay
Arbitrators typically consider
an employer’s ability to pay wage and benefit increases both
in
absolute and relative terms. Although this consideration is not explicitly
spelled out in RCW
41.56.465, it is a
consideration that would fall under subsection (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.”
It also is a consideration
that affects the issues certified for interest arbitration.
The Employer stipulated that
there exists no special consideration regarding its ability to
pay.
Although it urges the judicious deployment of its resources, it does not claim
any dire
financial
condition that would justify a less than adequate wage package for the
bargaining unit
members.
Given this uncontroverted
information, the Arbitrator will proceed on the assumption that
there
is no issue concerning the Employer’s ability to fund wage or other economic
increases,
but
she will recognize that as a prudent public employer, its allocation of
resources should be
consistent
with good business practices.
c). Turnover
The
in
2002) left their employment at the
Department (
Out of 16 filled positions in
the bargaining unit, this turnover rate is not shocking, but it is higher
than
what the Arbitrator has observed in other jurisdictions, and thus is a
consideration favoring
the
d) Stipulations
The parties’ stipulations
relevant to the issues before the Arbitrator have been taken into
account
in conjunction with the issue to which such stipulations pertain, regardless of
whether
or
not mentioned explicitly in this award.
e) Changes
There are no relevant changes
in the statutory factors that have taken place during these
proceedings
about which the Arbitrator is aware.
D. Arbitrator’s Conclusion and Award - Wages, Social Security
Replacement, Longevity
Pay and Hours of Work
1. Retirement Plan/Social
Security Replacement and Wages
This retirement plan/social
security replacement issue is by far the most contentious in this
proceeding;
the Arbitrator surmises that without this issue, the dispute would not have
proceeded
through interest arbitration. The issue also presents a novel and difficult
determination
for the Arbitrator.
The parties’ prior Collective
Bargaining Agreements contained no language on a retirement
fund.
But, a
Employer, during the life of
the 1998-2000 Collective Bargaining Agreement, was obligated to
contribute
an amount equal to its former social security contribution (6.2% of wages, plus
an
additional
1.45% for employees hired before 1986) to a bargaining unit pension fund. lnternat’l
Association of Firefighters
Local 1789 v. Spokane Airports, No. 70667-1 (Wa. S.Ct. April 25,
2002). The genesis of the
dispute was described by the Court as follows (footnote omitted]:
In 1962, Airport, which
operates its own fire department at the
International Airport,
contracted with the federal government in order that its fire
department
employees could obtain social security coverage. Consequently,
each
of its employees, all of whom were Union members, thereafter paid 6.2
percent
of their wages into a social security account and 1.45 percent of their
salary
into a Medicare account. Airport matched the contributions of its
employees.
On
exercised
their right to opt-out of the social security plan. Airport then obtained
refunds
from the federal government for the amount of money each fire
department
employee paid into a social security and Medicare account during
the
period 1995 through 1998 and for Airport’s matching contributions.
behalf
of the fire department employees, alleging that Airport ‘wrongfully . . .
convert{ed}
... those refunds’ of the employees’ money.’ ... It demanded that
Airport reimburse the
employees for the social security and Medicare taxes that
had
been withheld from the employees’ paychecks between the years 1995
through
1998.
into
its employees’ social security accounts be paid over to it for the benefit of
the
employees. Although Airport eventually returned to the employees the funds
that
had been withheld from their paychecks for social security and Medicare
coverage,
it refused to pay over to
employees’
accounts from 1995 to 1998.
‘{a}ll contributions to Social Security and Medicare for the
years 1995 through
1998, {for} . . . the
employees for whom they were contributed.’ ... It also
sought
a
judgment requiring Airport to continue to contribute to each individual
firefighter’s
qualified retirement plan, of plaintiffs’ choosing, in the amount of
6.2% and 1.45% of each
employee’s monthly wages for each month the
defendant
failed to make such payments from and after
expiration
of the current bargaining agreement.
The Supreme Court affirmed the
lower courts’ rulings in favor of the
court
order, the Employer became obligated “to continue to contribute to each
individual
firefighter’s
qualified retirement plan,” 6.2% of each employee’s monthly wage “for the
duration
of
the existing [1998-2000] collective bargaining agreement.” The Employer also
was obligated
to
contribute 1.45% for those employees hired prior to
subsequent
to that date remained, by law, subject to the statutory Medicare contribution).
The
Court said nothing about what
would or should happen after the expiration of the Collective
Bargaining
Agreement then in effect.
Exactly how to address this issue in a subsequent
interest arbitration award poses a
dilemma
for the Arbitrator. There are substantial considerations supporting both sides’
positions,
which are outlined next.
Considerations supporting the
1. The Supreme Court decision
represents a hard-won (and expensive) victory for the
bargaining
unit; although the
appeal
to the highest level.
2. The Supreme Court decision
is arguably now the status quo; arbitral precedent is that
an
interest arbitrator does not change the status quo absent a compelling reason.
3. What the
paying
prior to the bargaining unit electing to opt out of social security. Stated
differently, had
the
bargaining unit elected not to opt out, the Employer would be making an
identical
contribution
in the form of the required social security contribution.
4. The
analysis,
when viewed on an hourly basis. This analysis shows an overall wage lag of over
7%.
5. Of the eight comparators, one
has negotiated a partial social security replacement
benefit,
one pays the social security tax, four have a deferred compensation benefit or
deferred
medical
(VEBA) benefit (including the one that pays the social security tax). The cost
to the
employer
of these benefits range from a low of 2% of annual salary to a high of 7.8%
(paid by
Cheney, 6.2% of that benefit
is the social security tax).
In the Arbitrator’s opinion,
there also are valid considerations supporting the Employer’s
opposition:
1. It is an odd sort of “status
quo:” It was not freely negotiated but imposed by judicial
fiat,
that is, by operation of law. The Supreme Court did not rule that the social
security
replacement
should be carried forward into the next contract; in fact, the operation of law
invoked
by the court specifically ended with the Collective Bargaining Agreement then
in effect.
Although the court tied the
employer’s obligation to the 1998-2000 contract’s expiration, it
specifically
held that the obligation was not something arising from that labor agreement.
Instead, it held that the
obligation was “an inferred contractual obligation” of the employer that
“flows
from the compensatory nature of the social security benefits in this employment
relationship.”
Because the obligation did not arise from the Collective Bargaining Agreement,
there
was no need to require the
that
agreement. If the court’s analysis is carefully considered, it places the
interest arbitrator,
whose
role is confined to defining a new labor agreement after considering the
disputed
proposals’
rationale for departure from the old agreement, in an enigmatic position vis-a-vis this
prior
extra-contractual obligation of the employer.
2. Although the comparator
jurisdictions (except Cheney) have opted out of social
security,
only one negotiated a social security replacement, and it was a partial one (
FD No. 9, with a 4%
replacement). In fact, the record suggests that many, if not most, of the
bargaining
units in the state have opted out of social security without securing a
specific
replacement
contribution from the employer. 12
_______________
12 The record, however, contains
references to social security replacement benefits for
SeaTac
Airport fire fighters, and IAFF Locals 31 (
3. Although (assuming no
replacement) by opting out of social security, employees saved
their
Employer its share of the social security contribution, the employees also
saved their
amount.
The
4. An
employer’s social security contribution is not, or at least is not perceived as
being,
as
valuable as a retirement plan contribution in the same amount. The large number
of
bargaining
units that have opted out of social security suggests that they do not believe
they will
realize
full value from these contributions. As the dissent noted in this bargaining
unit’s
litigation
with the Employer:
[E]ach worker’s benefits,
though flowing from the contributions he {or she} made
to
the national economy while actively employed, are not dependent on the
degree
to which he {or she} was called upon to support the system by taxation.
Internat'l
Association of Firefighters Local 1789 v.
dissenting).
In other words, there are winners and losers under the social security system.
Perceiving oneself as a
“loser” under the social security system is a powerful motivator for
electing
to opt out. As the Employer explained in its post-hearing brief, social
security is not a
vested
retirement system and the contributions may or may not inure to the benefit of
individual
fire
fighters at some future date. Replacement payments, on the other hand, vest
immediately
and
can be invested in ways to virtually guarantee the principal.
5. Although the hourly
comparator analysis shows a 7.67% pay lag overall between the
bargaining
unit’s 2000 wages and the comparator average for 2001, when viewed on an
annual
salary basis, the pay lag is less than 2%. There are sound reasons (the
bargaining
unit’s
lighter workload and the excellent medical benefits) to temper the 7.67% figure
by
considerations
supporting a comparison based on annual salaries.
Ultimately, the balancing of
all of the above considerations militate against both parties’
proposals
going into these proceedings. The most significant consideration overall, in
this
Arbitrator’s opinion, is the comparator analysis. As shown above, the
2001 pay lag of this
bargaining
unit when viewed on an hourly basis is 7.67%. When not viewed on an hourly
basis,
the
pay lag is considerably smaller. All things considered, the Arbitrator believes
the hourly
analysis
should be given greater weight because the bargaining unit does work longer
hours.
She appreciates that this
consideration is counterbalanced by the less demanding work
performed
by the unit, and she will adjust the final award slightly to reflect this.
Nevertheless,
economic
package equal to 7.4% of the year 2000 benchmark wage for this bargaining unit.
longer
working hours means less free time for other pursuits; in addition, less
demanding work
may
be less desirable for many from a psychological standpoint.
After weighing and considering
the various factors identified above, the Arbitrator
concludes
the 7.67% “catch-up” indicated by the hourly wage analysis should be reduced to
an
economic
package equal to 7.4% of the year 2000 benchmark wage for this bargaining unit.
This 7.4% economic package
will be allocated as follows:
• A CPI-based wage increase of 2.9% for the year 2001
• A retirement plan contribution of 4.5% for the year 2001 and
each succeeding year
of
the contract.
In addition, the Arbitrator
will award CPI-based increases for 2002 and 2003.
2. Longevity Pay and Steps on the Salary Schedule
The Arbitrator’s view is that
pay issues in interest arbitration should normally be confined to
base
salary issues, absent extraordinary circumstances (such as that presented by
the social
security
issue in this case). The Employer has shown no reason for reducing wages
through a
reduction
in longevity pay. Nor is its desire to gain parity with other airport employees
sufficient
reason
to change the number of steps on the salary schedule, particularly when the
status quo
was
so recently negotiated by the parties. These Employer proposals are denied.
3. Hours of Work
The objective of the
by
bargaining unit personnel. The reduction is about one and one-half hours per
week, the
is a
back door way of enhancing the wage package for the bargaining unit, one that
would not
actually
increase the total compensation of bargaining unit members, but which would
have a
cost
to the Employer. The
other
than to point out that bargaining unit members’ hours tend to be longer than
comparable
fire
departments. However, the work performed is less intense, as the Employer
contends.
As the Arbitrator stated in
conjunction with the Employer’s proposals on longevity pay and
reduction
in steps on the salary schedule, her view is that wage enhancements (or the
opposite)
should be dealt with through the front door, in other words, through the wage
analysis
itself.
She finds no justification in this case for improving the employees’ position
through a
reduction
in hours in this case. Were she to rule otherwise, she would have make a
proportionate
reduction to the economic award to the bargaining unit. The
it
strongly prefers money to a reduction in the number of hours worked.
Accordingly, the
VII. UNION
BUSINESS ISSUE
A. Proposals
The Employer proposes the
following modification to the prior contract language:
The Employer agrees to release
one Union Officer or
representative
without loss of pay to attend official firefighters conferences,
conventions
and regional seminars, limited to three (3) seminars or conferences
per
year for the entire
Union Officer or if staffing allows
without
loss of pay to conduct Union business at the determination discretion
of
the
Chief.
The
B. Positions of the Parties
Employer’s Position
The Employer advances the
following in support of its proposed change to Article IV on
Business:
1. The purpose of the
Airport’s proposed amendment is simply to remove any reference
in
Article IV to mandatory shift staffing levels consistent with the Airport’s
proposal to
remove
mandatory shift staffing levels from the agreement. Minimum manning is the
subject
of one of the unfair labor practice charges filed in this matter by the
Airport. In the
event
that the minimum staffing provision is eliminated from the parties’ agreement
as a
result of
the ULP proceeding, the language in Article IV of the agreement regarding
Business should be amended to
omit any reference to mandatory staffing levels because
they
will no longer exist.
2. Moreover, the
under
the status quo should be disturbed.
Union’s Position
The
1. This language was just
modified during the 1998 negotiations between the parties so
as
to memorialize and to better reflect a practice that had already been in effect
between
the
parties for some time; the local agreed to ensure that the Employer would not
incur any
increased
cost because of the absence of a Union representative for Union business
purposes
because of minimum staffing requirements.
2. The parties’ practice has
been for the
member
if the Union officials’ absence compromised minimum staffing. Thus the clause
ensures
that the Employer will not pay overtime or incur any financial burden.
3. Because the language was just changed in 1998
and the status quo is working
satisfactorily,
there is no reason to change the language
C. Arbitrator’s Analysis and Award on the Union Business Issue:
Timothy
Lively, in his affidavit (Exh.
U-O19), explained that:
1. The language regarding
Union Business that is contained in Article IV of the
1998-2000 CBA between SIA and
Local 1789 was just modified during the 1998
negotiations
between the parties. The purpose of this modification was to
memorialize
and to better reflect a practice that had already been in effect
between
the parties for some time, whereby Local 1789 has agreed to ensure
that
no cost would result to the Airport if the absence of a Union representative
for
to
be reduced below the minimum levels that have been recognized by the
parties
as being necessary.
***
3. Thus, at no time that is
relevant hereto has the absence of a
representative
for Union business purposes caused the Airport Management to
have
to pay any overtime pay or to incur any other financial burden. . . .
The Employer apparently does
not assert this assertion or the other factual assertions of the
Employer’s argument in favor
of its proposal assumes: 1) success in both the unfair labor
practice
proceedings before PERC and any subsequent interest arbitration proceeding on
the
same
subject; and 2) the existing language is incompatible with its success. The
Arbitrator
believes
that the problematic nature of these assumptions make its proposal premature,
at
best.
Therefore, its proposal is denied.
VIII. SICK
LEAVE FOR NEW HIRES ISSUE
A. Proposal
The
LEOFF II Firefighters
(employed as Firefighters after
upon
employment, be advanced a credit of six
(6) twelve (12)
In the event an Employee does
not successfully complete probation, the
monetary
value of any sick leave used during the time of employment shall be
deducted
from Employee’s last payroll voucher. In the event an Employee
successfully
completed probation, Employee shall commence earning sick leave
at
the rate of one shift per month (24 hours). Any sick leave which was
advanced
during the probationary period but which was not used will be credited
to
the Employee’s sick leave record. ...
The Employer opposed this
change.
B. Positions of the Parties
Union’s Position
The Arbitrator should award
the union’s sick leave proposal because:
1. It will equitably protect
the income of newly hired bargaining unit members should they
incur a
work related injury or other injury early in their employment. The current CBA
allows
members to supplement worker’s comp payments with sick leave.
2. New hires are perhaps more likely because of
their relative inexperience, to be injured
on
the job and are less likely to have the resources for unpaid sick leave.
3. There will be no immediate
financial impact for the employer because there are no
entry
employees in the bargaining unit. A cost to the employer would accrue only if
it hired
a
new employee who had to use sick leave.
4. The current CBA contains
language protecting the employer against sick leave abuse.
5. Local 1789’s Sick Leave
proposal is well-supported by comparable data. (See Art.
18.3 of
of
Employer’s Position
The Employer opposes the
hearing
or the mediation showing a hardship associated with the current contract
provision
adequate
to change the status quo. As such, the
quo
with respect to sick leave should be maintained, the Employer contends.
C. Arbitrator’s Analysis and Award on New Employee Sick Leave Issue:
The
Moreover, it failed to offer a
comparator analysis on based on unproven assumptions.
probationary
employee sick leave. Therefore, its proposal is denied.
IX. OVERTIME
CALCULATION ISSUE
A. Proposal
The Employer proposes the
following new language; the
Overtime will be added to the
payroll for the pay period during which the
overtime
is performed. Overtime will be only based on actual time worked and
does
not include other compensated time off. If time is lost during the pay period
for
unexcused absence, then overtime pay shall not prevail until the overtime
hours
worked exceed the unexcused absence hours. It is understood that
nothing
in this Article shall require payment for overtime hours not worked.
The
B. Positions of the Parties
Employer’s Position
The Employer objects to using unworked hours in the calculation of the overtime
threshold;
this
defeats the purpose of overtime pay.
Union’s Position
The
compelling
need for the change. It was unable to show that its
was incurring undue
expenditures
for basing overtime on compensated time off.
C. Arbitrator’s Analysis and Award on Overtime Calculation Issue:
The Arbitrator agrees with the
X. FINAL AWARD
The decision and award of the
neutral Arbitrator in this dispute is as follows:
A. Wages, Number of Steps
Effective
100% of the most recent annual
CPI-U (West Coast “B/C”) index for the month of
August, which, according to
the record, equals 2.9%.
Effective
100% of the most recent annual
CPI-U (West Coast “B/C”) index for the month of
August, which, according to
the record, equals 2.7%.
Effective
100% of the most recent annual
CPI-U (West Coast “B/C”) index for the month of
August.
Although this figure was not available during the evidentiary proceedings, the
federal
Bureau of Labor Statistics has since released the data for August 2002.
According to that data, the
applicable inflator is 1.6%.13 Accordingly,
bargaining unit
wages
shall be increased by 1.6% for 2003.
_____________
13 See
footnote 11, supra.
B. Social Security Replacement/Retirement Plan: The Arbitrator awards
the following
contract language:
The Employer agrees to pay
four and one-half percent (4.5%) of the taxable
base
wage on behalf of the members of the bargaining unit up to the annual
maximum
limits for Social Security to the
Retirement
Fund.
C. Longevity Pay: Employer’s proposal denied.
D. Hours of Work:
E. Union Business: Employer’s proposal denied.
F. Sick Leave for New Hires:
G. Overtime Calculation: Employer’s proposal denied.
Date:
____________________________
Jane R. Wilkinson, Chairperson
Neutral Arbitrator