City of
And
International Association Fire
Fighters, Local 453
Interest Arbitration
Arbitrator: Gary L. Axon
Date Issued:
Arbitrator:
Axon; Gary L.
Case #: 16058-I-01-374
Employer:
City of
Date Issued:
IN THE MATTER
OF )
INTEREST ARBITRATION ) PERC CASE 16058-I-01-374
)
BETWEEN )
ARBITRATOR'S OPINION
)
THE INTERNATIONAL ASSOCIATION ) AND AWARD OF FIREFIGHTERS, LOCAL 453, )
) 2001 - 2003
) COLLECTIVE BARGAINING
and )
) AGREEMENT
CITY OF WENATCHEE, WASHINGTON, )
)
City )
HEARING SITE: City
Hall
HEARING DATES: June
12 & 13, 2002
POST-HEARING BRIEFS DUE: Postmarked
RECORD CLOSED ON RECEIPT OF
BRIEFS: August 2, 2002
REPRESENTING THE
Emal Skalbania & Vinnedge
REPRESENTING THE CITY: Bruce
L. Schroeder
Summit Law Group PLLC
INTEREST ARBITRATOR: Gary
L. Axon
(541) 488-1573
Table of Contents
ISSUE
Page
Introduction
................................................................................................................................
1
1. Hours of
Work ...................................................................................................
7
2. Kelly/Debit
Days
.............................................................................................
22
3. Wages
.............................................................................................................
23
4. Industrial
Insurance
.........................................................................................
38
5. Overtime
Pay and Compensatory Time ......................................................
44
6. Vacations
........................................................................................................
45
7. Shift
Changes
.................................................................................................
47
8. Buy-Out
for Loss of Promotional Opportunities
.......................................... 53
9. Entire
Agreement
...........................................................................................
56
10. Safety ..............................................................................................................
60
I. INTRODUCTION
The International Association of Firefighters, Local 453
(
signatories to a Collective
Bargaining Agreement effective January
1, 1998 for a minimum period
of three years or until such time as
a successor agreement can be
negotiated. The 1998-2000 agreement
continued in effect during the
negotiations for a successor
agreement. The parties were
unable to resolve all of the issues in
dispute through negotiation
and mediation.
In a letter dated
Executive Director, Public
Employment Relations Commission,
certified for interest
arbitration as provided in RCW 41.56.450 ten
issues as follows:
1. Hours
of Work - Article VI, Sections 6.1
and related articles of agreement related to
four-platoon staffing system
2. Kelly
or Debit Days - Article VI and
related articles of agreement related to
debit
days, total yearly hours of work
3. Wages
for 2001, 2002, 2003 - Article 10
4. Industrial
Insurance - Article 25
5. Overtime
Pay and Compensatory Time - Article 15
6. Vacation
provisions - Article 12
7. Shift
Changes - Article 17
8. Buy-Out
for Loss of Promotional
Opportunities
9. Entire
Agreement language (Article 31)
10. Safety
provisions - new Article proposed
as Article 30
Un.
Ex. 3.
The case was scheduled for
hearing before this Arbitrator for a
final and binding resolution.
Prior to the arbitration hearing, several
issues arose
regarding the status of
certain proposals to be presented to the
Arbitrator for a decision. The
legal disagreements continued to
the date of the arbitration.
To the credit of counsel, the parties
were able to work out a
resolution of the disagreements so the case
could proceed to hearing.
The City of
City has a population of
27,930.
central
aluminum smelter. For 2001,
the assessed valuation of the City was
$1,314,504,217. In 2001, the
City had general fund revenues of
$13,694,900.
Thirty bargaining unit members working out of
two
stations provide fire and
rescue services to the citizens of
oversee the operation of the
Fire Department. Fire and rescue
services are delivered by what
is referred to as a four-platoon
system, each headed by a
battalion chief. Three of the issues
before this Arbitrator are
directly related to a City proposal to
move from a four-platoon
system to a three-platoon system.
At the commencement of the arbitration
hearing, the
opening statements from
counsel revealed a sharp difference of
opinion over the issue of a
four-platoon versus a three-platoon
system. A significant amount
of hearing time was devoted to the
presentation of the evidence
and argument on the issues relating to
the four-platoon versus
three-platoon dispute. The Union
characterized the conflict
over the platoon system as the
overriding issue in this
contract dispute.
A dispute also arose over the cornparables to be used as
a guide for the Arbitrator in
formulating the Award on the ten
issues. Article 10.4 of the
1998-2000 contract specifies ten
Washington cities which
"shall be used as the basis for
comparison." The
enumerated cities are as follows:
Aberdeen Mount Vernon
Auburn Olympia
Kennewick Pullman
Longview Richland
Mountlake Terrace Walla Walla
In addition, the parties also
disagreed over the methodology and
means by which to compare
wages and contract benefits of Wenatchee
firefighters with their
counterparts in other cities.
The City proposed to delete Article 10.4 from
the
contract. According to the
City, the ten Washington cities no
longer are a representative
group of comparators to be used by
Wenatchee. The Union
challenged the City on its attempt to modify
the list of comparators. In
order to continue with the arbitration
hearing, the City stipulated
to the use of the ten jurisdictions
specified in Article 10.4.
However, the City did not stipulate to
the weight to be accorded to
each of the ten cities on the list.
Pursuant to the stipulation of
the parties and Article 10.4, the
Arbitrator will utilize the
ten listed cities as a guide to
developing this Award.
The hearing in this case required two days
for each side
to present their evidence and
testimony. The hearing was tape
recorded and copies of the
tapes were made available to the Union
and the Arbitrator by the
City. Testimony of witnesses was
received under oath. At the
hearing, the parties were given the
full opportunity to present
written evidence, oral testimony, and
argument regarding the issues
in dispute. Both the Union and the
City provided the Arbitrator
with substantial written documentation
in support of their respective
positions on the ten issues.
Moreover, the parties also submitted comprehensive and
detailed post-hearing briefs
in further support of their positions
taken at arbitration. The
approach of the Arbitrator in writing
the Award will be to summarize
the major, most persuasive evidence,
and arguments presented by the
parties on the ten issues. After
the introduction of the issue
and the positions of the parties, I
will state the basic findings
and rationale which caused your
Arbitrator to make an award on
the issues.
This Arbitrator has carefully reviewed and evaluated all
of the evidence and arguments
submitted pursuant to the criteria
established by RCW 41.56.465.
Since the record in this case is so
comprehensive, it would be
impractical for the Arbitrator in the
discussion and Award to
restate and refer to each and every piece
of evidence, testimony, and
argument presented. However, when
4.formulating this Award, the
Arbitrator did give careful
consideration to all of the
evidence and argument placed into the
record by the parties.
The statutory criteria are set out in RCW
41.56.465, as
follows :
(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) (i) For employees listed in RCW
41.56.030 (7 ) (a) through (d)
; 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 like employers of
similar
size on the west coast of the
United
States;
(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
United States. However, when
an adequate
number of comparable employers
exists
within the state of
Washington, other
west coast employers may 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. 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.
Because of the voluminous record and
extensive arguments
in this case, the parties
waived the thirty (30) day period an
arbitrator would normally have
to publish an interest arbitration
award under the statute.
ISSUE 1 - HOURS OF WORK
A. Background
Article 6 of the current contract defines the
hours of
work for members of this
bargaining unit. The dispute over hours
of work directly involves two
other related topics found in Issues
2 and 8. The parties'
proposals and arguments are intertwined
among the three issues
concerning the subject of the four-platoon
versus three-platoon system.
In reviewing the three issues, the
Arbitrator evaluated the
evidence and argument as a whole in
formulating the Award. While
your Arbitrator will make a separate
award on each issue, the
discussion and findings equally applies to
Issues 1, 2, and 8.
The Department currently operates on a
four-platoon
system for scheduling and
other purposes. Each platoon consists of
seven bargaining unit members.
The composition of a platoon is one
battalion chief, two captains,
two engineers, and two firefighters.
A platoon member works 24
hours on, 48 hours off, 24 hours on, and
96 hours off. In addition, a
platoon member also work 12 extra
24-hour shifts throughout the
calendar year. The extra shifts are
called "Debit Days."
The Debit Days ensure each member is assigned
a workweek that averages 48
hours throughout the year.
The four-platoon system became a part of the
agreement
with the 1991-1992 Collective
Bargaining Agreement and has remained
in effect until this date.
Prior to the 1991-1992 contract, the
parties operated under a
three-platoon system. The City offered
proposals in Issues 1, 2, and
8 which would return the Wenatchee
Fire Department to a
three-platoon system effective January 1,
2003. The Union seeks to
preserve the status quo of the four-
platoon system under Article 6
and advanced several proposals to
preserve and strengthen the
four-platoon system.
B. The
City
The City believes it has offered numerous
legitimate
reasons for conversion back to
a three-platoon system. According
to the City, the three-platoon
system will offer a number of
operational and financial
advantages to the City and to the public.
Those benefits include safety
enhancement to firefighters,
increased productivity and
training, increased team-building within
the Fire Department, financial
savings, and better overall
management of the Department.
City Ex. 1.7. The City submits all
of these benefits were
ultimately done with a vision of carrying
out the City of Wenatchee's
Fire Department Mission Statement.
City Ex. A. The City maintains
the Union's defense to the proposal
ignored all components of the
Mission Statement and focused almost
exclusively on the
firefighters' desires for more contiguous days
off.
The City's arguments are summarized in the
following
section:
1. The City's three-platoon system would
enhance firefighter safety
because the
staffing levels would increase
from seven
individuals on any given
platoon to ten
bargaining unit members on a
platoon at any
given time. The platoon would
be composed of
one battalion chief, two
captains, two
engineer/firefighters, and
five firefighters.
The Union offered no evidence
countering this
enhanced safety benefit.
2. A
primary benefit of the three-platoon
system involves training
productivity.
Training classes must be
scheduled four
separate times in order to reach
all four
platoons. Offering of the
training on four
separate occasions increases
the cost to
provide training to personnel
working at an
overtime rate. In addition, a
firefighter who
works a Debit Day with a
different platoon
during which training is held,
that
firefighter may also receive
the same training
on his normal schedule which
means the person
has to sit through the class
twice or do
nothing during the time
training is conducted.
3. The City argues one of the most
significant downsides of the
current four-
platoon system is the fact
there is no
continuity in crews from one
shift to the
next. City witnesses testified
that on any
given day it was very
difficult to know who,
in fact, was working in light
of the fact that
employees are primarily in
charge of
scheduling their Debit Days.
This has the
additional impact of having
employees work
outside their normal rank. The
City submits
the integrity of each platoon
will yield
greater benefits through a
three-platoon
system.
4. Although financial savings were admittedly
not the primary motivation for
the change to
the three-platoon system,
there will be
savings nonetheless. Chief Tibbs testified
there would be coverage
available for an
additional 210 shifts under
the three-platoon
system than under the current
four-platoon
system. This would allow the
possibility of
coverage without backfilling
at overtime
rates. While this will not
eliminate
backfilling at overtime rates,
it will make a
substantial dent in the
overtime exposure
inherent in the current
system.
Additional financial savings
would be gained
by the elimination of the
cumbersome four-
platoon scheduling system that
is ripe for
costly errors. The doubling up
of two battalion
chiefs that exists under the
four-
platoon system would be eliminated.
The
current scheduling system has
resulted in an
astronomical increase in the
Department's
overtime budget.
The three-platoon system would
also cure one
of the ironies of the existing
contract where
employees are not working the
contractually
called for 48-hour workweeks.
Article 6.1.
With the 52-week year, the
firefighters are
averaging 47.65 hours per
week. City Ex.
1.16. This oversight has cost
the City more
than $105,000 over the decade
the four-platoon
system has been in place. With
the City's
proposal, the workweek would
become 48 hours
in a full calendar year or
48.07 hours when
rounded to 52 weeks. The City
would once
again receive the benefit of
the bargain of
having employees work 48 hours per week.
5. A major benefit to be derived from the
City's three-platoon proposal
is better
overall management of the
Department. The
current four-platoon system is
top heavy with
nearly a one to two ratio of
officers to
firefighters. This is wildly
in excess of
what is demanded in the job.
With the three-
platoon system, there is a
vertical alignment
within the shifts which
increases the
possibility for
accountability. The three-
platoon system would allow
fire administration
to see the shifts eight times
per month rather
than five under the current system.
The
three-platoon system has the
benefit of better
consistency on the rotation
because employees
will work 24 hours, followed
by 48 hours off,
with an additional day off
after every sixth
shift . Under the four-platoon
system
firefighters work 24 hours on,
48 hours off,
24 hours on, followed by 96
hours off. This
significant period away from
work is
inefficient and reinforces a
philosophy that
firefighting is not the
primary occupation.
6. The fundamental choice of a three-platoon
system is recognized under
state law as a
management right. Under the
City's proposal,
there would be no transfer of
bargaining unit
work to any other employees,
nor would any
employees be laid off or
suffer financially in
this change. The full
changeover would take
place through attrition.
7. The comparables overwhelmingly support the
City's three-platoon proposal.
Wenatchee is
unique amongst the comparators
with a four-
platoon system. Although
Mountlake Terrace is
converting to a four-platoon
system, it is
doing so in order to align
with the system in
place at Snohomish Fire
District No. 1. Union
witness Paul Harvey indicated
that of
departments similarly sized to
Wenatchee, he
was aware of only one other in
the state,
Centralia, that has a
four-platoon system.
The call load for Wenatchee
firefighters is
nowhere close to the
four-platoon systems that
are in place among the larger
fire departments
in the state of Washington.
The City's three-platoon
proposal still
provides ample opportunity for
firefighters to
decompress. After every
24-hour shift, they
receive two days off. After
every sixth
shift, they receive an
additional paid day off
through a Kelly Day.
8. Returning Wenatchee to a three-platoon
system would align the
Department with the
adjoining fire districts.
9. Return to a three-platoon system has been
recommended by numerous
outside experts and
consultants.
10. The City's three-platoon proposal has
minimal impact on employees.
The City is
undertaking significant
measures to ensure the
transition from four platoons
to three
platoons would have minimal
impact on existing
personnel. No employees will
lose their jobs,
nor will they be demoted. No
employees will
suffer any financial harm in
the process. The
City faces a unique
opportunity in the next
four years with a number of
officers reaching
retirement age. This will
allow for
promotional opportunities
within the
bargaining unit. The City's
proposal ensures
the same number of days off as
firefighters
currently enjoy. While the
vacation bidding
will be more difficult, the
effects will be
minimal on employees since
their number of
vacation days would be unaffected.
The City next argues that the Union's
proposals for
Article 6 contained in Issues
1 and 2 should be rejected. First,
the proposals relate to the
concept of Debit Days, a concept that
would go away with conversion
to a three-platoon system. Second,
the Union offered no
independent justification supporting the
introduction of significant
language into the contract. Third, the
Union's proposals would
further erode the Department's ability to
manage the scheduling of Debit
Days. Fourth, if the Union purports
to merely be integrating
Memoranda of Understanding into the
contract, the language
proposed does not reflect existing Memoranda
of Understanding.
Based on all of the above-stated reasons, the
Arbitrator
should award the City's
proposals found in Issues 1 and 2.
C. The
Union
The Union seeks to maintain
the status quo by keeping the
current four-platoon system
intact. Adoption of the City's
proposals regarding Issues 1,
2, and 8, to go to a three-platoon
system, would negatively
impact bargaining unit members in a number
of significant ways. The
City's proposals would increase the hours
of work for members, severely
limit future promotional
opportunities, permanently
reduce the number of higher paying
positions in the unit, and
change the whole shift structure under
which the members work. In
addition, adoption of the City's
proposals would severely limit
vacation selection options, make
many other significant
negative changes to the working environment
12.of members. and eliminate a
system that has worked well for the
parties for the past 11 years.
The Union asserts the City represented to the Union that
the three-platoon proposal was
"not about money." The City has
simply claimed all along that
it wants to go to the three-platoon
system because that
organization would allegedly be more efficient
and less administratively
troublesome. The Union argues the City's
evidence simply does not
support the contention that it would be
more efficient for the City to
operate under a three-platoon system
than it would be to continue
to operate the Department under a
four-platoon system. Since the
City is proposing to make a
significant change in the
status quo. the burden is on the City to
establish through "clear
and understandable evidence" both the
reasonableness and operational
necessity of the change in status
quo that it is proposing to
make in this interest arbitration.
The Union argues one of the beneficial
aspects of the
four-platoon system that would
be lost with a three-platoon system.
and would negatively impact
upon the efficiency of the Department
is when a member of a platoon
is assigned to work a Debit Day.
When a member works a Debit
Day on another platoon, this allows the
bargaining unit member to keep
in regular contact with other
members of the Department and
to see how other platoons operate.
Thus, each platoon does not
become isolated into itself with its
own quirky way of operating.
The Union submits this would be the
case under a three-platoon
system.
Moreover, the officers from each platoon also
actually
work together on the same
shift, at the same time, more often than
would be the case if the
Department went to a three-platoon system.
According to the Union, with
more officers on duty, they are easily
able to coordinate their
supervisory activities. The three-platoon
system also results in the
City not being forced to pay out-of-
class pay to a bargaining unit
member to replace any officer who
was not on the shift.
It is also the position of the Union a
three-platoon
system would negatively impact
on shift continuity and the ability
of the shift officers to
coordinate their supervisory efforts.
Because of Kelly Days, the
regularly assigned officers on a
particular platoon would work
together much less frequently than is
now the case with the
four-platoon system. Going to a three-
platoon system would also
cause the City to have to pay out-of-
class pay to bargaining unit
members on 50% of the total shifts
worked, without even taking
vacation leave and sick leave into
account, because either a
battalion chief, a captain or an engineer
would be absent from the shift
on a Kelly Day 50% of the time.
This development would
significantly increase the City's cost
relating to out-of-class pay.
Under the current four-platoon system, there
are two
floaters who, rather than
being assigned to a regular platoon, are
usually assigned to work on a
40-hour per week shift, but are also
available for assignment to a
platoon shift, as needed, in order to
reduce overtime costs to the
City. This arrangement is much more
beneficial to the City by
giving management increased flexibility
in terms of reducing potential
overtime costs than would be the
case under the three-platoon
system.
The
inefficient in terms of the
manner in which management utilizes the
relatively limited number of
personnel, even if one additional
firefighter is hired as contemplated
by the City under a three-
platoon system. The City will
incur overtime costs due to Kelly
Day requirements, vacation
leave, and/or sick leave issues. This
is because the City has simply
not hired enough personnel in order
to staff its Department without
regularly incurring overtime costs.
The most efficient way for the
City to avoid overtime costs given
the current staffing levels
would be to assign floaters to work the
shifts. The City has
admittedly used only one of the floaters to
perform shift work.
The Arbitrator should ignore the City's
calculations of
overtime costs because they
are misleading. In the view of the
associated with wildfire
mobilization which the City began to
participate in for the first
time in the mid-1990s. Therefore, the
historical comparison of the
overtime costs without first excluding
the wildfire mobilization
overtime from the data being compared.
Regarding the City's claim the training
process would be
enhanced under the
three-platoon system, the
evidence that was introduced
at the arbitration hearing actually
shows the exact opposite is
true. Under the three-platoon system
the City is proposing, it
would be impossible to have all of the
members of a particular
platoon present at any one time to
participate in a training
activity. This is true because of
individuals who need to be
absent each day because of the
requirement to provide Kelly
Days to the members. By its very
nature, the three-platoon
system will prevent all members of a
particular platoon from
training together, and will require more
than one training session per
platoon in order to ensure all unit
members receive any particular
type of training. The four-platoon
system is simply superior in
allowing for more efficient training
for the members.
The Arbitrator should reject the
three-platoon system
proposal because the City's
proposal will increase the hours worked
by members and thus lower
their hourly rate of pay. Further, the
City's proposal will
negatively impact the ability of members to
utilize their vacation
benefits because they will be competing with
nine other individuals instead
of six persons for prime vacation.
A significant reason for rejecting this
proposal is the
disruption it will cause on
the personal lives of members of this
bargaining unit. According to
the
hours would place them in a
worse position than they are now. As
a result, morale will suffer
greatly among the membership. The
Department's low turnover rate
can be directly traced to the four-
platoon system. A low turnover
rate saves the taxpayers money that
would otherwise be needed to
recruit and train new firefighters.
Bargaining history supports the
case. It was the City who
initially proposed in 1991 to go to a
four-platoon system and now it
is the City that is trying to alter
that four-platoon system
without having any legitimate basis for
doing so. The four-platoon
system has worked well for the parties
and enables the Department to
deliver fire protection services to
the citizens in an efficient
and safe manner.
One of the justifications for the change
offered by the
City was the difficulty in
administering the Debit Day selection
process. The parties entered
into a Memoranda of Understanding to
clarify how this process could
be improved. The
whatever it takes regarding
the Debit Day selection process in
order to ensure the current
four-platoon system will otherwise be
retained intact.
In sum, the Arbitrator should reject the
City's proposal
which will adversely impact
the members of this bargaining unit by
imposing a less efficient work
schedule, reduce promotion
opportunities, and increase
the hours of work for members of this
bargaining unit. The
Arbitrator should not impose on the members
of this bargaining unit a
system that will significantly alter the
quality of life firefighters
currently enjoy.
D. Discussion and Findings
The Arbitrator finds the City made a clear
and persuasive
case the time has come for a
revision in Article 6 - Hours of Work.
In the judgment of this
Arbitrator, the City's evidence when
measured against the statutory
criteria demonstrated the four-
platoon system has outlived
its usefulness in this small
Department. The evidence
adduced by the City demonstrated the
three-platoon system is
consistent with the
Department's
protection of life and
property to the citizens. With the three-
platoon system, the Fire
Department will be better able to meet its
future challenges due to
greater flexibility and efficiencies found
in the three-platoon system.
A primary concern of both parties is
firefighter safety.
The three-platoon system will
enhance firefighter safety. Staffing
levels under the three-platoon
system will increase from seven to
ten firefighters on duty at
any given time. The
evidence to rebut the improved
safety benefit of a three-platoon
system.
The City's proposal is based on the sound
premise that
productivity and efficiency
will be improved. While the
sought to minimize the City's
evidence concerning improved
productivity and efficiency,
the Arbitrator holds the weight of the
evidence favors the City's
position. The cumbersome four-platoon
system is difficult to
schedule and has resulted in increased
overtime costs. The
three-platoon system will benefit the City
financially. Under the City's
proposal firefighter positions and
classifications will be
protected.
The Arbitrator concurs with the City the
four-platoon
system is top heavy with
officers. A ratio of nearly one to two
officers to a firefighter is
in excess of what is demanded to
perform the job in a small
fire department.
Regarding the Union's claim the firefighter's
hourly rate
of pay would be reduced by
adoption of the City's proposal, the
Arbitrator finds this argument
to be misplaced. The contract calls
for firefighters to work 48
hours per week. Because of a quirk in
the scheduling under the
four-platoon system, firefighters are not
working the
contractually-required 48 hours per week. The
principle of pay for time
worked is fundamental to any collective
bargaining agreement. The
movement to a three-platoon system will
bring the hours of work into
conformance with the contractually-
mandated 48-hour workweek. The
Arbitrator gave consideration to
the fact firefighters will
have a slight increase in their hours
worked when setting the pay
for 2003.
It is understandable that Wenatchee
firefighters desire
to continue to work the
four-platoon system where employees work 24
hours on, followed by 48 hours
off, 24 hours on, and 96 hours off.
However, the significant time
away from the job requires an
excessive amount of
administrative effort to administer this
irregular work schedule. The
Arbitrator concludes a work schedule
which has the employee away
from work 96 hours, by itself, argues
against retention of the four-platoon
system.
Under the three-platoon system, firefighters
will work a
consistent schedule of 24
hours on, with 48 hours off, with an
additional Kelly Day after
every sixth shift. The three-platoon
system preserves the same
number of days off as firefighters
currently enjoy. The only
difference is the hours off from duty
will be scheduled differently.
Further, no employees will lose
pay, be laid off, or demoted
as a result of going to a three-
platoon system.
Vacation scheduling by firefighters will be
more
difficult because the member
will be competing with nine employees
rather than six. Given that
the number of vacation days remain
unchanged, and recognizing the
benefits to the City of a three-
platoon system, the Arbitrator
finds the minimal impact on vacation
scheduling is an insufficient
reason to reject the three-platoon
proposal.
One of the most compelling reasons for
adopting the
City's proposal is derived
from the statutory factor of
comparability. Wenatchee
stands alone among the ten comparators
utilizing a four-platoon
system. All of the others have a three-
platoon system. Although
Mountlake Terrace is moving to a four-
platoon system to align with a
merger to the larger Snohomish
County Fire District 1, the
undisputed fact remains Wenatchee's
four-platoon system is unique
among similarly-sized fire
departments in the state of
Washington. The Union offered no
persuasive evidence why the
Wenatchee Fire Department should &be
brought into conformance with
the agreed-on comparators who utilize
a three-platoon system.
AWARD
The Arbitrator awards that Article 6.1 of the
Collective
Bargaining Agreement be
amended to state:
ARTICLE 6 - HOURS OF WORK
6.1 Effective
January 1, 2003, the work
schedule will be a 48.07 hour
work week, three
(3) platoon system, operating
on a 21 day 7(k)
cycle. The Department will
operate on a 24
hours on/48 hours off
schedule. No one by
virtue of changing from a four
platoon to a
three platoon system shall be
demoted or lose
classification.
ISSUE 2 - KELLY/DEBIT DAYS
A. Background
This issue is tied directly to the City's
proposal for
the three-platoon system. For
the reasons stated in Issue 1, the
Arbitrator will adopt the
City's proposed language.
AWARD
The Arbitrator awards that Article 6.2 and
6.3 be amended
to state as follows:
6.2 Members will be assigned
one (1)
adjustment day (Kelly Day)
each 21-day cycle.
Kelly Day will be used to
reduce the hours of
work and will be assigned.
Kelly Day must be
taken within the 21-day work
cycle.
6.3 The employer shall ensure
that when an
employee is transferred from
one shift to
another, the employee shall
work the same
number of shifts as originally
assigned in an
identifiable cycle.
ISSUE 3 - WAGES
A. Background
Both parties are proposing a three-year
contract. The
parties agree that for 2001, a
3.1% cost-of-living adjustment is
appropriate. Based on the
agreement of the parties, the Arbitrator
will award the 3.1% increase
for 2001.
For 2002, the City is offering a 2.5%
increase and the
2003 increase tied to the CPI.
The
with a minimum of 3%. The City
is proposing an adjustment of 90%
of the CPI. The City is also
proposing to delete the list of
cities specified in Article
10.4 to be used as comparators.
The base wage for a firefighter first class
for the third
year of the 2000 contract was
$3,917 per month. With the agreed-on
increase for 2001, of 3.1%,
the firefighter first class base wage
will rise to $4,038 per month
for the first year of the 2001-2003
contract. Battalion chiefs and
lieutenants receive a higher salary
calculated on a percentage
over the base wage rate for a first
class firefighter.
B. The
Union
The Union avers its 3.1% proposed increase
for 2002 is
fair and reasonable. The
proposal for the base wage referenced the
CPI measurement which turns
out to be 3.1%. The Union offered the
same logic for its 2003
proposal for a 100% of the CPI measurement
to set the base wage.
The
the guidelines set forth in
RCW 41.56.465 and should be adopted by
the Arbitrator. The
1. The
for 2001 is less than the
average base wage
that was received by
comparators during 2001.
Un. Ex. 10.
2. The base wage that the
for its members in the amount
of 3.1% is also
significantly lower than the
average base wage
increase for 2002 that was
received by the ten
comparators. The average base
wage increase
for the comparators in 2002
was 3.9%' which is
significantly greater than the
3.1% wage
increase the
instance.
3. Even if the
increases for 2001 and 2002
are granted in
full by the Arbitrator, the
fall further behind the
comparators in 2002.
The comparators are on the
average receiving
larger base increases than the
proposing to receive for 2001
and 2002.
4. Union Exhibit 33 specifies what the base
wage will be for every member
of the
bargaining unit if the
Arbitrator grants the
proposed base wage increases
for 2001 and
2002. The
reasonable.
5. Turning to the proposed base wage increase
for 2003, the
Arbitrator to provide its
members with a wage
increase that will roughly
keep them abreast
of the increased cost of
living they will
experience in 2003. If 2001
and 2002 are any
indication, members will be
even further
behind the comparators in 2003
with respect to
compensation.
6. The limited data available for 2003
reveals
minimum increase of 3% and
that will be equal
to the CPI for August 2002.
will receive 90% of the CPI as
its base wage
in 2003.
wage increase for 2003. The
wage increases
that the parties' other
comparators will
receive for 2003 are still not
known.
7. The City concedes the parties' historical
practice since 1992 has been
to provide
bargaining unit members with
base wage
increases that have exceeded
the cost of
living.
8. The
purporting to show
firefighters received base
wage increases totaling 25.54%
are in error
because the figures identified
the average
base wage increase received by
members of this
bargaining unit for a period
of time by
failing to include the two
years when the
members did not receive any
base wage
increases at all into the
averaging process.
Thus, the 3.1% base wage
increases the
is requesting for 2001 and
2002 are below the
average annual base wage
increases members
have been receiving from the
City for the last
several years.
9. The
5% increase in the amount of
compensation that
was received by the bargaining
unit members
for 2001 in order to catch up
to the average
amount of compensation for
2001 that was
received by the parties'
comparators.
10. The City has not made any sort of
inability to pay argument in
this proceeding.
11. The City has contended the economic
health of the
suffering a downturn. Even if
this was true,
the
any significant degree. The
fact remains the
base wage increases from the
City which are
already lower than the base
wage increases
that would have been justified
by the parties'
historical practice and the
other facts that
are discussed above.
Regarding the City's low turnover argument,
the Union
asserts the good morale is the
product of the four-platoon system
the parties have been using
since 1991. Further, even the data
provided by the City during
the bargaining process showed members
were being compensated by the
City for the year 2000 at a rate that
was behind the average of the
comparators the parties agreed to
utilize in this instance. Un.
Ex. 11. The City's primary exhibit
which makes comparisons
between the compensation that has been
provided members of this unit
with the comparators is inaccurate
and/or misleading. City Ex.
3.3.1. According to the Union, the
City's chart utilizes 2000
data for Richland, excludes data from
Mountlake Terrace entirely,
excludes consideration of EMT premiums
at other departments, and
utilizes a five-year benchmark. The
City's five-year benchmark is
less representative of the Union's
veteran-laden bargaining unit
than the benchmark that the Union has
chosen to utilize in its
comparator studies.
Based on all of the above-stated arguments,
the
Arbitrator should award the
Union's position on wages.
C. The City
The City is proposing a flat 2.5% increase
for 2002 and
a third year increase of of the CPI. The
real difference
between the parties on the
wage issue is the multidimensional
approach taken by the City
versus a single-dimensional approach
used by the Union. The City
offered numerous factors supporting
its three-year proposals. On
the other hand, the Union stopped at
its comparability analysis.
The City respectfully suggests that
its multidimensional approach
is more consistent with the
statutory mandate than the
Union's reliance on one factor alone.
Although both parties used a net hourly
compensation
analysis, there were
differences between the approaches taken by
both sides. According to the
City, for comparison purposes, wages
paid to a firefighter first
class with an A.A. Degree should be
used, without inclusion of
longevity premiums or premiums for
specialty assignments. The
City based its analysis on a top-step
firefighter at the five-year
level with an A.A. Degree. The Union
added a longevity premium for
employees with 15 years of service
and certain premiums paid in
other jurisdictions for particular
certifications. Un. Ex. 9. The
City submits that inclusion of
both longevity premiums and
certification premiums is
inappropriate. There is no
proposal modifying the longevity
component of the City's
current contract and interest arbitrators
routinely look to top-step
rates for doing comparisons for base
wage adjustments.
Regarding the certification premiums, these
premiums are
unique to an individual and
are not awarded to bargaining unit
members across-the-board.
There was no showing by the
hearing that such premiums
were paid to firefighters across-the-
board. Thus, the City
concludes the use of individualized premiums
unique to a particular
jurisdiction unfairly skews the comparison
with
The City next argues that its net hourly rate
exceeds the
average of the contract cornparables even with
included.
hour. In contrast, the
comparable analysis furnished by the
unfairly compares apples to
oranges. Un. Ex. 9. The analysis
improperly includes a
longevity premium above top step and
individualized certification
premiums. The wage used for
for comparison is for calendar
year 2000 whereas for every other
agency the rate is for 2001.
There is no difference between the
parties on the wage proposal
for 2001. Thus, the 3.1% increase
needs to be added to the
amount to fairly compare
the others in 2001.
If the
problems, the
The average wage per net hours
worked for 2001 is $23.41 in the ten
comparators. The average wage
for
$23.20. This is an amount only
.9 percent under the average of the
comparables. When the
influence of the central
factored in,
comparables. Therefore, the
City submits even the
comparability analysis
supports the fairness of the City's
proposal.
It is critical to note that both parties'
analyses
ignores one other huge expense
associated with firefighters, the
health insurance premiums. The
premium cost for full family
coverage in 2002 is $811.80
per month, with the employee
contributing only $43.15. City
Ex. 3.3.4. Thus, on top of the
significant wages and benefits
included in the comparable analysis
is another extremely large
expense for firefighter health
insurance.
The cost-of-living factor supports the City's
proposal.
the cost of living over the
last decade. The City estimated that
if firefighters had received
increases equal to 100% of the cost of
living during that decade,
their wage would have only grown to
$3,853 per month. Over that
decade, a firefighter's actual pay
increased from $3,050 per
month to $4,038 per month.
The second element in the cost-of-living
factor is the
City's evidence that it costs
firefighters significantly less to
live in Wenatchee than in the
majority of the comparables from the
central Puget Sound
metropolitan area. This subfactor strongly
supports the City's position.
There is no dispute from the
evidence adduced at the
hearing that the economic boom has
significantly increased
housing prices and rental rates in the
central Puget Sound area that
have not yet been felt in Wenatchee.
The City argues its proposal
of a 2.5% increase in 2002
is fair in relation to the
current measures of the cost of living.
Further, the City also
believes that its CPI formula for the third
year of the contract is fair
due to the relative stability of the
CPI and because of the fact
the City has been bearing the
significant effects of health
insurance increases. Because the
health insurance component
causes such an overall impact on the
cost of living, it is fair to
temper the CPI-based award to 90%
rather than 100%.
Internal comparisons support the City's
position.
Firefighters have received
cumulative cost-of-living increases
greater than other bargaining
units in the City. In 2001, the
AFSCME and non-represented
employees received a 2.66% increase,
approximately 1/2 of a percent
less than that being proposed for
the firefighters. For 2002,
management and non-represented
employees had a salary freeze
and AFSCME members received a 2.56%
increase.
The workload of the bargaining unit has not
changed
significantly during the last
few years. The City's call volume is
significantly less than in the
comparables. City Ex. 1.10. The
average calls per year of the
comparables is 4,656 compared to
1,361 per year,
handle. The workload
statistics do not justify an above-market
wage adjustment.
The fiscal resource factor does not support
the
wage demand. Although the City
is not offering a classic inability
to pay case, the City
maintains it is critical to analyze an
appropriate wage settlement in
the context of its overall financial
health. The City has seen a
decline in the growth of its sales tax
revenues. The problem has been
magnified by the outflow of retail
businesses across the
has recently lost a lucrative
auto dealership to
well as the loss of retail
outlets who have developed in East
The other major factor clouding the City's
future is the
uncertainty of the reopening
of Alcoa's aluminum smelter. The
decision of the company to
close the smelter would affect a large
number of employees who reside
in the City, or spend money in the
City. The smelter has been
closed for a year with its electrical
draw being sold to the local
PUD.
The cumulative effect of voter-passed tax
limitation
measures have decreased the
ability of the City to maintain its
budget. The
presentation on its fiscal
condition.
The local labor market supports the City's
proposal. The
comparison of wage rates for
adjoining fire districts and
information concerning cost-of
-living adjustments for major county
employers supports the City's
position. The wages paid to
districts. The average wage
increase of the major employers in the
area was 2.66%. The
surrounding agricultural base to the
economy has also been soft.
The overall financial conditions in
the local labor market
directly affect
The City of
portray the fact the City is
having no difficulty attracting
qualified candidates based on
existing pay and no difficulty in
retaining them once they are
hired. From 1985 to the present, only
five bargaining unit members
have left the
Department voluntarily. Two of
those firefighters returned seeking
employment from the
departure. Thus, the City
submits an above-market adjustment is
not needed to attract and
retain qualified personnel.
Regarding the City's proposal to strike
Article 10.4 from
the contract, the City
maintains the comparables were never
developed with criteria
applicable to statutory interest
arbitration. Since the time
these cities were referenced in the
contract, a number have grown
both in population as well as wealth
and are, therefore, no longer
comparable to the City of
The City submits the
Arbitrator should strike Article 10.4 so the
parties can start with a clean
slate during the next round of
bargaining to fashion a set of
comparables that is principled.
D. Discussion and Findings
Based on the agreement of the parties, the
Arbitrator
will award a 3.1% increase
effective
bring the base wage for a
firefighter to $4,038 per month. The
3.1% is equal to the cost-of-living
index. The Arbitrator finds
after review of the evidence
and argument as applied to the
statutory criteria an
additional cost-of-living adjustment of 3.1%
is appropriate for 2002.
Implementation of this increase will
advance the top-step firefighter
to $4,163 per month. The third
year of the contract should be
adjusted by an additional 3%. The
3% increase will set the
top-step firefighter base wage effective
The Arbitrator will also award the City's
proposal
delete Article 10.4 from the
successor contract. The reasoning
the Arbitrator is set forth in
the discussion which follows.
Due to the fact the major issue between the
parties was
the City's proposal to change
from a four-platoon to a three-
platoon system, the wage issue
does not carry the significance
normally found in an interest
arbitration case. This is evidenced
by the fact the parties agreed
during the hearing to a 3.1% cost-
of-living increase for For 2002, the
difference between the
parties is minor with the City
at 2.5% and the
Arbitrator will award a 3.1%
cost-of-living increase for 2002. If
the cost-of-living figures
projected for 2003 hold, the parties
differ only by the City's 90%
of the CPI and the
for a full 100% increase based
on the CPI. The Arbitrator will
award a flat 3% increase for
2003 rather than linking the increase
to the CPI. The Arbitrator
rejected the buy-out proposal of the
Union in Issue 8, so that is a
cost the City will not have to bear.
Since the parties are extremely close on the
wage issue,
your Arbitrator will not
engage in a detailed analysis and
evaluation of the data in this
Award. Likewise, the need for a
comprehensive,
multidimensional analysis is substantially
diminished. In making this
award on the wage issue, the Arbitrator
is mindful of the fact the
City prevailed on the major issue in
this case concerning the
three-platoon system. The bottom line is
the Arbitrator is essentially
awarding cost-of-living increases
over the duration of this
three-year contract.
Constitutional
and Statutory Authority of City
Regarding the constitutional and statutory
authority of
the City of
factor which would place the
Award in conflict with
Stipulations
of the Parties
The parties agree that the Collective
Bargaining
Agreement should be effective
for three years beginning January 1,
2001. The significant
stipulation of the parties relevant to this
interest arbitration was to
use the cities set forth in Article
10.4 as the cornparables in this interest arbitration.
Changes
During the Pendency of this Proceeding
Regarding the factor of changes in any
circumstances
during the pendency
of this interest arbitration and proceeding,
the City updated the CPI data
by attachments to its post-hearing
brief.
Comparability
The Arbitrator is bound by the stipulation of
the parties
to use the ten cities listed
in Article 10.4 as the comparator
group for this interest
arbitration. In this case, the City's
methodology of using the
top-step rate paid for a first class
firefighter when performing
comparison studies is the preferred
method used by interest
arbitrators in formulating awards. While
individual premium pay should
not be ignored, including premium pay
with the base pay improperly
skews an accurate comparison of wages.
When the 3.1% increase for 2001 is included
on the top-
step firefighter comparison,
their counterparts in the ten
other jurisdictions at the base wage.
The average base monthly wage
for a five-year firefighter in the
comparables for 2001 was
$4,141. City. Ex. 3.3.5. A cost-of-
living increase for 2002 of
3.1% will serve to maintain
firefighter pay competitive
with the ten comparator jurisdictions.
For 2002, wage adjustments for
firefighters in six of the ten
comparators range from 2.5% to
4%. The two most notable 2002 wage
increases are in the east side
cities of
the 2002 adjustments for the
designated comparators.
Rather than awarding a 2003 adjustment based
on a CPI
formula, the Arbitrator will
award a flat 3% increase. With over
1-1/2 years of the 2001-2003
contract already lapsed, there is no
need for additional
uncertainty concerning an increase to take
effect in approximately four
months on
data predicts inflation will
be running at about 3%. The parties
agreed to a cost-of-living
increase for 2001 of 3.1% which mirrors
the CPI figures. The
Arbitrator's award of a 3.1% cost-of-living
increase for 2002 also
reflects the cost of living as measured by
the CPI. The 3% award for 2003
will be consistent with the
projected CPI data presented
by the City.
Other Traditional Factors
The
There was very little
difference between the City's proposals for
wage increases and the
the three-year period of the
contract. The Arbitrator's award is
consistent with increases
awarded other City employees. While the
award amounts are somewhat
higher than those provided other City
employees, the Arbitrator is
charged by law to establish the wages
for this group of employees
pursuant to the statutory criteria.
Article 10.4
Turning to the City's proposal to delete
Article 10.4
from the contract, the
Arbitrator concurs with the City's position
this unique provision needs to
be reexamined. The agreed-on
jurisdictions have undergone
different economic and population
changes over time since they
were originally established by the
parties. Several of the
designated cities do not meet the criteria
interest arbitrators normally
use for developing a list of
comparators. The Arbitrator
was tempted to make some modifications
to the comparator group in
order to be of assistance to the parties
in future negotiations.
However, on the state of the record, the
task of establishing a new
list of comparators is best left to the
parties to develop in future
negotiations. The Arbitrator will
strike Article 10.4 from the
successor contract. This decision by
the Arbitrator should not be
taken as a finding some of the
designated cities would be
inappropriate on a future list of
comparators.
AWARD
The Arbitrator awards that Article 10 be
amended to
state:
1. Article
10.la
Effective
Effective
Effective January 1, 2003 - 3% increase
2. Article
10.4 shall be stricken from the
successor contract.
ISSUE 4 - INDUSTRIAL INSURANCE
A. Background
Article 24 addresses issues concerning employees who
suffer an on-the- job injury.
The City proposed to make substantial
changes and additions to Article
24. The
continue current contract
language.
B. The City
The City proposes changes to Article 24 to
accomplish two
goals. First, the City wants
to ensure the contract language
reflects the current practice
of supplementing workers'
compensation benefits. Second,
the City seeks to develop a
mechanism to address medical
assessments in long-term disability
cases. The proposed changes
to 24.3, and
Article 24.6 all relate to the
first goal. In the view of the
City, the
the City is anything different
than the current practice.
Therefore, the Arbitrator
should conclude there was no basis to
oppose the City's request.
Turning to the City's proposed change to
Sections 24.7
through 24.10, the
months or longer providing a
basis for the proposed language. The
be terminated at the end of
the six-month leave of absence was
38.overly harsh and not
consistent with the Americans With
Disabilities Act (
The City acknowledges that there have been no
cases of a
disability leave extending six
months or longer. However, City
witnesses testified the intent
of the language was to be proactive
and to provide a framework to
use when a case of a six-month
disability leave arises. The
City submits this language does not
seek to override the statutory
protection of the
assess whether an employee is
truly disabled and to evaluate
possible accommodations.
The City urges the Arbitrator reject the
that employees will automatically
be terminated after a six-month
leave of absence. The City
maintains its proposal does not dictate
termination after a six-month
leave of absence. The proposed
language only mentions that an
administrative termination "may"
occur if it appears the
employee is physically incapable of
returning to work in the near
future. The six-month framework for
the supplemental benefits is
also consistent with the
State disability statute. The
parties have developed their own
form of disability supplement
that is more generous than the
statutory framework. The City
seeks to have the same six-month
limitation for both.
C. The
The
According to the
significant changes in the
status quo as a result of its proposal,
the burden of proof is on the
City to establish through clear and
understandable evidence both
the reasonableness and the operational
necessity for the changes in
the status quo. The
City has not met and cannot
meet this burden in order to deserve an
award in its favor on this
issue. The
proposal as one which would
radically alter the status quo by
implementing a complicated
proposal that would allow the City to
arbitrarily terminate a
bargaining unit member who has been off
duty for six months as a
result of an on-the-job injury. In the
view of the
protection to someone who has
suffered an on-the-job injury than
would be the case with someone
who had suffered an off-the-job
injury. The
laws providing protection to
disabled employees. The
the City's proposal would
treat bargaining unit members in a
negative manner that is not in
any way supported by analysis of the
ten comparators.
The
insurmountable problems with
the way it seeks to handle industrial
insurance. The City cannot
validly make a proposal in this
proceeding that would attempt
to supersede the statutory protection
for employees. In addition,
the City's proposal also violates case
law from
industrial provisions of the
statutes. The
40.Arbitrator should not award
a proposal that would violate statutory
law.
Moreover, the
rejected because it is not
supported by the comparators, nor has
the City established there is
any need for the proposal. The City
is seeking to create a complex
and illegal solution to a problem
that does not even exist.
Since the arbitrary deadline and onerous
burdens that the City is
attempting to place on bargaining unit
members as a result of the proposal
only apply to on-the-job
injuries, the Arbitrator
should reject this proposal and continue
the current language
unchanged.
D. Discussion and Findings
The starting point for review of this
proposal is to
recognize the revised article
would substantially change current
language and add several new
provisions to Article 24. The
Arbitrator concurs with the
complicated and would place
onerous burdens on employees who might
suffer serious on-the-job
injuries. There is no dispute that one
situation which the City seeks
to address involving a long-term
disability has never occurred
in this Department.
While the City argued the proposed language
is nothing
more than current practice,
the evidence produced by the City did
not prove the language
mirrored any past practice. A review of the
proposal by this Arbitrator
reveals the language would create new
standards and burdens on the
employees. The Arbitrator was not
convinced by the City's
evidence and argument there was a
demonstrable need to add this
lengthy and complicated language to
the Collective Bargaining
Agreement.
Moreover, the type of language proposed by
the City was
not supported by the contracts
from the ten comparators. None of
the ten contracts includes a provision
on industrial insurance that
is anywhere close to the
complicated and detailed language proposed
by the City. The lack of
similar language in the other contracts
lends some credence to the
state law.
Article 24.10 of the City's proposal states:
The provisions of Article 24 shall be in lieu
of any statutory benefits outlined in RCW 5
41.04.500 through .550.
Emphasis
added.
While the Arbitrator is not attempting to
offer an
opinion on the legality of the
article, a provision which clearly
states the contract benefit
"shall be in lieu of any statutory
benefits outlined in RCW 5
41.04.500 through .550" certainly raises
a red flag in this
Arbitrator's mind about the appropriateness of
awarding this type of language
through the interest arbitration
process.
AWARD
The Arbitrator awards that Article 24 -
Industrial
Insurance Coverage, shall
remain unchanged in the 2001-2003
Collective Bargaining
Agreement.
ISSUE
5 - OVERTIME PAY AND COMPENSATORY TIME
A. Background
The City agreed to withdraw its proposal to
change
Article 15 with one exception.
If the Arbitrator awarded the
City's three-platoon plan, the
City proposed the appropriate FLSA
7(k) threshold should be 21
days. The
addition to Article 15.
AWARD
The Arbitrator awards that Article 15.2 be
changed by
adding the following
provision:
15.2 The following circumstances will give
rise to additional pay, and will be paid in
accordance with 15.1 and 15.1.1 above:
a) Employees
who are held over beyond
their shift shall be paid time rounded to
the next half hour.
b) Employees
who are called back to work
outside their regularly scheduled shifts,
shall be paid a minimum of two (2) hours
or given compensatory time at two (2)
times the hours (8 ) worked.
c) Employees
paid for work outside their
regular shift, as described above, will
be paid their regular hourly
rate, or
overtime compensation,
depending on how
the hours impact the
employee's 159 hour
threshold in a 21-day period.
ISSUE 6 - VACATIONS
A. Background
Both parties presented proposals to make
changes to
Article 12 - Vacations. During
the course of the hearing, the
Union agreed to the City's
proposed changes to Article 12.1,
Article 12.1.1, and Article
12.2.3(b). These sections of the
contract are no longer in
dispute. The
its proposal to add language
identified as Article 12.2.3(c). The
sole remaining issue in
dispute is the City's proposal to change
Article 12.2.5. This proposal
was conditioned on the Arbitrator
awarding the City's
three-platoon proposal. The Arbitrator awarded
the three-platoon system so
the City's proposed language regarding
vacations will be added to the
successor agreement.
B. The
See arguments in Issues 1, 2, and 8.
C. The City
See arguments in Issues 1, 2, and 8.
D. Discussion and Findings
The thrust of the City's proposal is to prevent all three
officers assigned to a platoon
from being on vacation at the same
time. The proposal is
reasonable and justifiable in order to
create continuity of the
command staff.
AWARD
The Arbitrator awards the City's proposal to
amend
Article 12.2.5 to read:
12.2.5 All vacations selected
after February
15 will be requested and
submitted through
proper channels for approval.
Vacations
cannot be scheduled to create
a situation
where all three (3) officers
on a shift,
within each platoon, would be
on vacation or
absent at the same time.
ISSUE 7 - SHIFT CHANGES
A. Background
Article 17 - Shift Changes,
provides as follows:
17.1 Employees shall have the
right to
exchange shifts with the prior
approval of the
Fire Chief or his designate
when the change
does not interfere with the
efficient
operation of the Fire
Department.
17.2 All shift trades must be
completed
within ninety (90) calendar
days either side
of the initial trade day and
must be approved
by both respective Battalion
Chiefs or their
designate(s). Un. Ex. 51.
The City proposed to add new language which
would place
several restrictions on the
ability of firefighters to trade
shifts. The
B. The City
The City proposes to modify the language in
Article 17 to
place limits on the practice
of shift trades. According to the
City, this issue has increased
in importance because the
filed at least six grievances
which are headed for arbitration
concerning Article 17. The
entire practice of shift trades is
unique to the public sector
and particularly to fire departments.
The extent of shift trading within the
Department has
grown to major levels. City
Ex. 7.5. Currently, there are no
limitations on the number of
shift trades which can occur in any
given calendar year, nor are
there limitations that shift trades
must be on a rank-for-rank
basis. The City cited examples of where
a firefighter third class was
approved to trade for a captain.
Allowing a firefighter who has
not made it to firefighter first
class to serve as an officer
is incomprehensible. In addition, the
problems stemming from the
extent of shift trades are also
complicated through the use of
sick leave. A number of employees
who are otherwise scheduled to
complete a shift trade would call in
sick. Because of minimum
staffing concerns, this required the
employer to backfill at an
overtime premium for shift coverage.
The City's proposal would limit shift trades
to six per
year for any bargaining unit
employee. The employee would also be
limited to one outstanding
trade at any given time with certain
defined exceptions.
Limitations on shift trades are commonplace in
the contracts of comparable
jurisdictions, as well as in the
industry as a whole. City Exs. 7.3 and 7.4.
The City points to its Exhibit 7.5 where the
compilation
shows there were 134 exchanges
of time in 2001, involving 23
employees. Thirteen of the 23
employees participated in six or
less time exchanges and
accounted for 41 of the 134 trades. The
other ten employees were
involved in the remaining 93 trades.
Given the magnitude of the
number of shift changes and problems
with its administration, the
Department must have the right to
review shift trades by someone
other than fellow bargaining unit
members, which includes the
battalion chiefs and captains. The
City's proposal should be
adopted.
C . The
The
the status quo by implementing
a series of changes to the parties'
current practice regarding
shift trades. Since the City is seeking
to alter the status quo in
this instance, the burden is on the City
to establish the need to do
so, and to establish support for its
proposals among the parties'
comparators. The
the City's proposed
alterations to the status quo are supported by
the parties' comparators. For
instance, none of the comparators
prohibit a bargaining unit
member from being a participant in
multiple future shift changes
at the same time. No comparator
disallows a shift trade simply
because the shift trade relates to
a bargaining unit member's
outside employment. Nine out of ten
comparators selected by the
parties in this instance allow their
bargaining unit members to
engage in an unlimited number of shift
trades during the calendar
year. Nine out of the parties'
comparators do not treat
probationary employees differently. Un.
Ex. 30. Thus, it is clear the
City's proposed alterations to the
status quo regarding shift
trades are not supported by the ten
comparators.
Moreover, the City has also not demonstrated
any pressing
need to alter the parties'
current practice regarding shift trades.
The current language has been
in the contract, unchanged, since at
least 1989. The language
already provides the City with enough
protection against any
unjustified usage of shift trades by a
member so that no alterations
are needed. The City is permitted to
refuse to approve a trade if
the trade "interferes with the
efficient operation of the
Fire Department." The contract also
carries forward a provision
that an employee working out-of-
classification will not
receive out-of-classification pay while on
a shift trade. The City's
Operating Instructions for the Fire
Department also provide
additional guidance to the parties
regarding the manner in which
shift trades should be utilized
within the Department. Thus,
the
already in place between the
parties to safeguard against the
possible misuse of the shift
trade system.
D. Discussion and Findings
The Arbitrator was persuaded by the City's
argument there
is a need for management to
attain greater control over shift
trades. The testimony and
evidence revealed that shift trades in
this small Department need to
be restricted. The record revealed
there were 134 shift trades
over the previous year which placed an
undue burden on management's
ability to run the Department
efficiently. Further, the fact
that six grievances were recently
filed regarding the
application of Article 17 reveals there is a
justification for change. The
Arbitrator also concurs with the
City that allowing
firefighters who have not attained first class
firefighter status to serve as
an officer is unacceptable. These
trades were approved by fellow
bargaining unit members.
The
comparators argues against the
City proposal, as written. The
Arbitrator will modify the
language proposed by the City to bring
the contract more in line with
the comparators. When these changes
are combined with the other
contract language and the relevant
provision of the Operating
Instructions for the Fire Department,
the City should be able to
manage the shift trades efficiently
without creating an undue
restraint on a member's ability to trade
shifts.
AWARD
The Arbitrator awards that Article 17 - Shift
Changes, be
modified to read:
17.1 Shift personnel will be allowed eight
(8) shift trades per calendar
year. Four (4)
hours or more is considered a
shift trade.
17.2 All shift trades must be completed
within ninety (90) calendar
days either side
of the initial trade day and
must be approved
by both respective Battalion
Chiefs or their
designate (8 ).
17.3 Pay backs not accomplished in accordance
with item number two (2) shall
be considered
lost.
17.4 Family emergencies may be considered an
exception to the policy. What
constitutes an
emergency will be determined
by the Chief or
Assistant Chief or the shift
officer in their
absence.
17.5 Shift trades may be denied if the trade
conflicts with prearranged or
required
training.
17.6 The modifications to Article 17 shall
become effective
ISSUE 8 - BUY-OUT
FOR LOSS OF PROMOTIONAL OPPORTUNITIES
A. Background
This is a conditional proposal offered by the
would only apply if the
Arbitrator awarded the three-platoon
system. The
wage of bargaining unit
members in return for loss of promotional
opportunities. The provision
would become effective with the
implementation of the
three-platoon system on
There is no current contract
language on this subject. The City
opposes the
B. The
The
system would not achieve any
greater administrative efficiency, but
is related to the goal of
reducing the number of higher-salaried
job positions that exist
within the bargaining unit. The
corresponding impact would be
to increase the number of lower-
salaried positions which would
exist within the bargaining unit.
The
not warranted and should not
be allowed without any sort of 'buy-
out" in the event the
Arbitrator would award the three-platoon
system.
C. The
City
The City asserts there is no demonstrated
basis for the
1.6% additional increase
sought by the
Arbitrator would award a
three-platoon system. The City also
demonstrated that with the
number of anticipated retirements in the
next four years, there will be
promotional opportunities for
bargaining unit members. The
City has also proposed to implement
the transition to a
three-platoon system without any negative
financial consequences to
employees in that it would maintain
salary levels for otherwise
affected captains and battalion chiefs.
Under the
including those continuing to
receive their captain and battalion
chief pay, would be rewarded
with an additional 1.6%. The
proposal provides every
bargaining unit member with a premium in
perpetuity, even to the
bargaining unit members who have no intent
to seek promotions within the
Fire Department.
Finally, the City notes the fact bargaining
unit members
have received in excess of
$105,000 over the last 11 years during
which they have not worked at
the 48-hour per week level
contractually committed to by
the parties. City Ex. 8.8. This
excess payment the City has
made has already provided a windfall to
bargaining unit members
countering against any claim members have
or will suffer financial
deprivation due to lost promotional
opportunities.
D. Discussion and Findings
The Arbitrator holds there is no merit to
this proposal.
The language offered by the
the language would yield an additional
increase to all bargaining
unit members, even though they
were not interested in seeking
promotions within the
Department. The idea of providing
compensation for the loss of
potential promotional opportunities is
speculative, at best.
Therefore, the Arbitrator concludes the
contract.
AWARD
The Arbitrator holds the
become a part of the successor
Collective Bargaining Agreement.
ISSUE 9 - ENTIRE AGREEMENT
A. Background
The contract is silent regarding an entire
agreement or
what is commonly referred to
as a zipper clause. The City proposed
new language to read:
ARTICLE 30 - ENTIRE AGREEMENT
30.1 This Agreement is the
entire agreement
of the parties, terminating
all prior
agreements, arrangements and
practices, and
concluding all negotiations
during the term of
this Agreement, except as
provided in Article
29, Supplemental Agreement.
The
which it asserts would change
the status quo.
B. The
City
The City argued a zipper clause is necessary
to counter
a common problem in the
past practices. City Ex. 9.3.
According to the City, Chief Tibbs
has been burdened with a
number of loose arrangements which were
developed under former
administrations that did not find their way
into the Collective Bargaining
Agreement or by Memoranda of
Understanding. This situation
made it very difficult for Chief
Tibbs
when he took over as chief of the Department to know exactly
what practices were in place.
In order to avoid future conflicts,
the City wishes to establish a
defined procedure for incorporating
Memoranda of Understanding
into the contract. The new language
would require the parties to
document more thoroughly any Memoranda
of Understanding or
practices. There will be no ongoing
confusion
if the City's proposal is
adopted.
C . The
The Union takes the position the language
proposed by the
City would result in a
significant waiver of the
bargaining rights. Further,
the zipper clause proposed by the City
would stand in stark contrast
to what the parties' comparators are
doing with regard to zipper
clauses.
It is the position of the
the City goes further than
necessary to ensure future Memoranda of
Understandings between the
parties were clear and uniform, but
could be interpreted as a
waiver of the
City to bargain over mandatory
subjects of bargaining that arose
during the term of the
contract. By terminating the prevailing
rights of the employees, the
language would fly in the face
of what the vast majority of the
comparators have done in their
collective bargaining agreements.
The comparators include
specific provisions in their contract which
make it clear that all rights
and practices of the parties that
were in effect at the time the
contract was entered into and are
not specified in the contract
will remain in effect.
The
legal rights is not necessary
and not supported by the parties'
comparators. Therefore, the
City's proposal regarding the
zipper clause and maintain the status
quo.
. D.
Discussion and Findings
The Arbitrator concurs with the
not provided sufficient
evidence to justify the inclusion of its
proposed entire agreement
language. First, the City's proposal
finds no support in the
comparator contracts. Second, the
Arbitrator, on the basis of
this record, was not convinced that the
imposition of a zipper clause
which could easily be interpreted to
mean the
included in the contract.
Third, there is no prevailing rights
clause in the current contract
which would protect the employees
where there were established
rights and practices in effect at the
time the parties entered into
the agreement.
Fourth, the City's concern over the loose way
in which
arrangements and
understandings were reached between the parties is
primarily historical. The City
can stop this type of arrangement
by insisting that written
Memoranda of Understanding be entered
into to address situations not
covered by the contract. By
exercising his managerial
prerogatives, Chief Tibbs can put a stop
to these ill-defined
arrangements which purportedly have burdened
the current administration.
AWARD
The Arbitrator awards that the City's
proposed entire
agreement clause shall not
become a part of the successor
agreement.
ISSUE 10 - SAFETY
A. Background
This issue concerns a minimum staffing
proposal presented
There is no minimum staffing
language in the current by the
agreement. However, the
management rights clause expressly gives
the City the right to
“determine the number of personnel to be
assigned duty at any time.”
Article 7. The City argues the
Union‘s proposal should be
rejected.
B. The
The
Safety, to the Collective
Bargaining Agreement which reads as
follows :
30.1 The City shall continue
to make
reasonable provisions for the
safety and
health of its employees.
30.2 The City, recognizing the
importance of
Firefighter safety and the
safety of the
citizens whom they serve,
agrees to provide
the following minimum staffing
levels at all
times.
1) a
minimum of 7 (seven) line
personnel on duty per shift, to
include :
A) a minimum of 1 Battalion Chief
on duty per shift;
B) a minimum of 3 (three) line
personnel assigned to each engine
company; 1 Captain, 1 Engineer,
and
1 Firefighter; and
C ) a minimum of 3 (three) line
personnel assigned to each truck
company;
1 Captain, 1 Engineer, and
1 Firefighter.
The
the parties' existing practice
regarding staffing that has been in
place, unchanged, for many
years. The parties' long-standing
practice regarding minimum
staffing is set forth in the Fire
Department's Operating
Instructions. The
alter this practice in any
way, but is simply seeking to formalize
it somewhat by including
language that refers to minimum staffing
and describes it for the
parties in the Collective Bargaining
Agreement. The
future point, reduce its
minimum staffing levels. The bottom line
is that minimum staffing is an
important issue for the
on safety concerns for its
members.
C. The City
The City opposes the mandatory minimum
staffing proposal
of the
management rights clause which
gives the City the right to
determine the number of
personnel on duty at any one time. The
City does not want to weaken
this right in the event some
unforeseen circumstances, such
as funding, would cause the City to
review its staffing levels.
The City also takes the position the
no evidence or problems which
would justify adding this language to
the contract. The parties have
a working practice that recognizes
seven personnel on shift that
has functioned well by policy and
will continue to function
well.
The final argument of the City is based on
its three-
platoon system proposal which
will provide for ten personnel on
duty at any given time.
According to the City, the three-platoon
approach will increase the
staffing levels and provide a better
strategy for safety than the
platoon structure. For all of
these reasons, the
on minimum staffing levels
should be rejected.
D. Discussion and Findings
There is no disagreement between the parties
about the
importance of maintaining
safety for firefighters and the citizens
they serve. The
personnel on duty by the terms
of the Collective Bargaining
Agreement. The Arbitrator
remains unconvinced the
a need to fix minimum staffing
levels in the Collective Bargaining
Agreement.
Moreover, the Arbitrator concurs with the
City that
determination of minimum
staffing levels is a legitimate managerial
prerogative to be retained by
the City. The management rights
article expressly reserves to
the City the right to determine
staffing levels. Based on the
record before this Arbitrator, I am
unwilling to change this
important management prerogative.
AWARD
The Arbitrator awards that the
minimum staffing proposal
offered by the
contract .
Respectfully
submitted,
Gary
L. Axon
Arbitrator
Dated: