INTEREST ARBITRATIONS

Decision Information

Decision Content

City of Wenatchee

And

International Association Fire Fighters, Local 453

Interest Arbitration

Arbitrator:      Gary L. Axon

Date Issued:   08/27/2002

 

 

Arbitrator:         Axon; Gary L.

Case #:              16058-I-01-374

Employer:          City of Wenatchee; Washington

Union:                The International Association of Firefighters; Local 453

Date Issued:      08/27/2002

 

 

                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

                                                            Union                          )

                                                                                                )           COLLECTIVE BARGAINING

                           and                                                               )

                                                                                                )                       AGREEMENT

            CITY OF WENATCHEE, WASHINGTON,            )

                                                                                                )

                                                            City                             )

 

 

HEARING SITE:                                                                              City Hall

                                                                                                            Wenatchee, Washington

 

HEARING DATES:                                                                          June 12 & 13, 2002

 

POST-HEARING BRIEFS DUE:                                                    Postmarked July 26, 2002

 

RECORD CLOSED ON RECEIPT OF BRIEFS:              August 2, 2002

 

REPRESENTING THE UNION:                                                     Alex J. Skalbania

Emal Skalbania & Vinnedge

4241 - 21st Ave. W., Suite 104

Seattle, WA 98199-1271

 

REPRESENTING THE CITY:                                                         Bruce L. Schroeder

Summit Law Group PLLC

Suite 300

1505 Westlake Avenue North

Seattle, WA 98109-3050

 

INTEREST ARBITRATOR:                                                           Gary L. Axon

P.O. Box 190

Ashland, OR 97520

(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

(Union) and the City of Wenatchee, Washington (City) are

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 October 19, 2001, Marvin L. Schurke,

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 Wenatchee is located in Chelan County. The

City has a population of 27,930. Wenatchee is in an area of north

central Washington, whose primary industry is agriculture and an

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

Wenatchee. Fire Chief Glen Tibbs, along with two assistant chiefs

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 Union next argues the three-platoon system would be

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

Union, the overtime calculations do not separate out the costs

associated with wildfire mobilization which the City began to

participate in for the first time in the mid-1990s. Therefore, the

Union submits it is impossible to engage in any sort of accurate

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 Union believes 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 Union, the change in working

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 Union's position in this

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 Union will do

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 Wenatchee Fire

Department's Mission Statement to provide the highest level of

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 Union offered no

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 Union

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

Union is proposing a 3.1% adjustment. Each side is proposing a

2003 increase tied to the CPI. The Union seeks a full CPI increase

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 Union asserts its wage proposals are consistent with

the guidelines set forth in RCW 41.56.465 and should be adopted by

the Arbitrator. The Union's arguments are summarized as follows:

 

1.         The Union's proposed base wage increase

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 Union is seeking

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 Union is requesting in this

instance.

 

3.         Even if the Union's proposed base wage

increases for 2001 and 2002 are granted in

full by the Arbitrator, the Union will still

fall further behind the comparators in 2002.

The comparators are on the average receiving

larger base increases than the Union is

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 Union submits these amounts are

reasonable.

 

5.         Turning to the proposed base wage increase

for 2003, the Union is simply asking 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 Aberdeen firefighters will receive a

minimum increase of 3% and that will be equal

to the CPI for August 2002. Mountlake Terrace

will receive 90% of the CPI as its base wage

in 2003. Mount Vernon will receive a 4% base

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 Union argues the City's data

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 Union

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 Union would have needed to receive a

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 Wenatchee area is currently

suffering a downturn. Even if this was true,

the Union does not believe this is the case to

any significant degree. The fact remains the

Union is only requesting relatively modest

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 Union at 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 Wenatchee's pay structure.

 

                        The City next argues that its net hourly rate exceeds the

average of the contract cornparables even with Mountlake Terrace

included. Wenatchee still exceeds the average of $22.27 per net

hour. In contrast, the comparable analysis furnished by the Union

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 Wenatchee

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 Wenatchee with

the others in 2001.

 

                        If the Union's exhibit is corrected for some of these

problems, the Union's own analysis supports the City's proposal.

The average wage per net hours worked for 2001 is $23.41 in the ten

comparators. The average wage for Wenatchee firefighters is

$23.20. This is an amount only .9 percent under the average of the

comparables. When the influence of the central Puget Sound is

factored in, Wenatchee's position is even more favorable.

Wenatchee is actually 4.6% above the average of the non-Puget Sound

comparables. Therefore, the City submits even the Union's own

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.

Wenatchee firefighter's wage increases have significantly exceeded

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

Wenatchee at 1,986. With the exception of Pullman's call volume of

1,361 per year, Wenatchee firefighters have the lowest call load to

handle. The workload statistics do not justify an above-market

wage adjustment.

 

                        The fiscal resource factor does not support the Union's

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 Columbia River to East Wenatchee. The City

has recently lost a lucrative auto dealership to East Wenatchee, as

well as the loss of retail outlets who have developed in East

Wenatchee.

 

                        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 Union offered little to counter the City's

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

Wenatchee firefighters exceeds that provided in adjoining fire

districts. The average wage increase of the major employers in the

area was 2.66%. The surrounding agricultural base to the Wenatchee

economy has also been soft. The overall financial conditions in

the local labor market directly affect Wenatchee.

 

                        The City of Wenatchee's turnover statistics drastically

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 Wenatchee Fire

Department voluntarily. Two of those firefighters returned seeking

employment from the Wenatchee Fire Department shortly after their

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 Wenatchee.

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 January 1, 2001. This will

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

January 1, 2003 at $4,288 per month.

 

                        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 Union at 3.1%. 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 Union's proposal

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 Wenatchee, no issues were raised with respect to this

factor which would place the Award in conflict with Washington law.

 

                                        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, Wenatchee firefighters are $103 behind

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 Wenatchee

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 Walla Walla (3.1%) and

Pullman (3.6%). The 3.1% awarded for 2002 will be consistent with

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 January 1, 2003. The CPI

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 Union's wage proposals in this case were modest.

There was very little difference between the City's proposals for

wage increases and the Union's proposals for wage adjustments over

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 January 1, 2001 - 3.1% COLA

 

                        Effective January 1, 2002 - 3.1% COLA

           

                        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 Union proposed to

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 Union presented no evidence that the language proposed by

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 Union offered two primary responses. First, the

Union argued there was no history of disabilities lasting six

months or longer providing a basis for the proposed language. The

Union also argued the automatic requirement that an employee would

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 (ADA).

 

                        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 ADA. Rather, the

ADA accords employers the right to receive medical information to

assess whether an employee is truly disabled and to evaluate

possible accommodations.

 

                        The City urges the Arbitrator reject the Union's argument

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 Washington

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 Union

 

                        The Union's proposal is to maintain the status quo.

According to the Union, since the City is proposing to make

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 Union submits the

City has not met and cannot meet this burden in order to deserve an

award in its favor on this issue. The Union portrayed the City's

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 Union, this feature potentially provides less

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 Union also asserts this proposal would violate state

laws providing protection to disabled employees. The Union submits

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 Union avers the City's proposal faces a number of

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 Washington State's appellate courts interpreting the

industrial provisions of the statutes. The Union concludes the

40.Arbitrator should not award a proposal that would violate statutory

law.

 

                        Moreover, the Union maintains the proposal should be

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 Union the proposed language is

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 Union's claim the proposal would violate

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 Union did not contest this

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 Union agreed to withdraw

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 Union

 

                        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 Union proposed to continue current contract language.

 

                        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 Union has

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 Union

 

                        The Union argues the City's proposal significantly alters

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 Union avers none of

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 Union submits the mechanisms are

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 Union' s evidence regarding shift trades in 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 January 1, 2003.

 

            ISSUE 8 - BUY-OUT FOR LOSS OF PROMOTIONAL OPPORTUNITIES

 

                        A.        Background

 

                        This is a conditional proposal offered by the Union which

would only apply if the Arbitrator awarded the three-platoon

system. The Union proposed an additional 1.6% be added to the base

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 January 1, 2003.

There is no current contract language on this subject. The City

opposes the Union's proposal.

 

                        B.        The Union

 

                        The Union argues the City's proposal for a three-platoon

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 Union submits such sweeping changes in the salary structure are

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 Union in the event 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 Union's proposal, all bargaining unit members,

including those continuing to receive their captain and battalion

chief pay, would be rewarded with an additional 1.6%. The Union's

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 Union is without precedent. Further,

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

Union's proposal should not become a part of the successor

contract.

 

                                                            AWARD

 

                        The Arbitrator holds the Union's proposal should not

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 Union rejects the City's proposed contract language

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 Wenatchee Fire Department involving alleged

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 Union

 

                        The Union takes the position the language proposed by the

City would result in a significant waiver of the Union's collective

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 Union the language proposed by

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 Union's right to force 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 Union asserts the City's proposed

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 Union submits the City's proposal to waive important

legal rights is not necessary and not supported by the parties'

comparators. Therefore, the Union requests the Arbitrator deny the

City's proposal regarding the zipper clause and maintain the status

quo.

 

.                       D.        Discussion and Findings

 

                        The Arbitrator concurs with the Union that the City has

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 Union had waived important bargaining rights should be

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 Union.

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 Union

 

                        The Union proposes to add a new article, Article 30 -

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 Union views this proposal as an attempt to formalize

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 Union is not seeking to

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 Union is concerned that the City might, at some

future point, reduce its minimum staffing levels. The bottom line

is that minimum staffing is an important issue for the Union based

on safety concerns for its members.

 

                        C.        The City

 

                        The City opposes the mandatory minimum staffing proposal

of the Union for several reasons. The City points to 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 Union has pointed to

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 Union's perpetuation of the four-

platoon structure. For all of these reasons, the Union's proposal

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 Union's approach would set the minimum number of

personnel on duty by the terms of the Collective Bargaining

Agreement. The Arbitrator remains unconvinced the Union has shown

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 Union should not become a part of the successor

contract .

 

                                                                        Respectfully submitted,

 

                                                                        Gary L. Axon

                                                                        Arbitrator

                                                                        Dated: August 27, 2002

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