IN THE MATTER OF THE INTEREST )
ARBITRATION BETWEEN )
) INTEREST ARBITRATION
CITY OF LONGVIEW, WASHINGTON ) OPINION AND AWARD
)
and ) PERC NO. 18123-I-04-0426
)
INTERNATIONAL ASSOCIATION ) Date Issued: January 11, 2005
OF FIREFIGHTERS, LOCAL 828 )
___________________________________)
OPINION AND AWARD OF THE NEUTRAL CHAIRMAN
Neutral Chairman
Michael H. Beck
Arbitrator-City of Longview
Nelson A. Graham, P.E.
Aribtrator-International Association of Firefighters, Local 828
Ricky J. Walsh, Vice President District 7
Appearances
City of Longview
Bruce L. Schroeder
International Association of Firefighters, Local 828
Alex J. Skalbania
CITY OF LONGVIEW
and
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL 828
INTEREST ARBITRATION OPINION AND AWARD
TABLE OF CONTENTS
OPINION OF THE NEUTRAL CHAIRMAN .................................... 1.
I . PROCEDURAL MATTERS ............................................. 1.
II . BACKGROUND AND NATURE OF DISPUTE .............................. 2.
III . COMPARATORS .................................................. 3.
IV . WAGES AND SALARIES ........................................... 10.
A . General Wage Increase .................................... 10.
B . Deferred Compensation .................................... 17.
C . Education/Tuition Reimbursement .......................... 18.
D . Emergency Overtime ....................................... 19.
V . HOURS/SCHEDULES ............................................... 20.
A . FlexTime ................................................. 20.
B . Overtime Shift Changes ................................... 22.
C . Productive or Structured Hours ........................... 24.
VI . VACATIONS .................................................... 25.
VII . INSURANCE BENEFITS .......................................... 26.
A . Cost sharing ............................................. 26.
B . VEBA Account ............................................. 28.
C . Life Insurance ........................................... 29.
D . Benefits Committee and Flexible Spending Accounts ........ 29.
VIII . TRAINING ................................................... 30.
IX . TRADING PRIVILEGE OR SHIFT TRADES ............................ 31.
X . ABILITY TO PAY ................................................ 34.
AWARD OF THE NEUTRAL CHAIRMAN ..................................... 34.
IN THE MATTER OF THE INTEREST )
ARBITRATION BETWEEN )
)
CITY OF LONGVIEW, WASHINGTON )
) INTEREST ARBITRATION
and )
) PERC NO. 18123-I-04-0426
INTERNATIONAL ASSOCIATION )
OF FIREFIGHTERS, LOCAL 828 ) Date Issued: January 11, 2005
___________________________________)
OPINION OF THE NEUTRAL CHAIRMAN
I. PROCEDURAL MATTERS
The Neutral Chairman selected by the parties is Michael H. Beck. The Arbitrator
appointed by the City of Longview is Nelson A. Graham, P.E. The Arbitrator appointed
by the International Association of Firefighters, Local 828 is Ricky J. Walsh, Vice
President, District 7. The Employer, City of Longview, was represented by Bruce L.
Shroeder of the Summit Law Group, PLLC. The Union, International Association of
Firefighters, Local 828 was represented by Alex J. Skalbania of the law firm of Emmal
Skalbania & Vinnedge.
A hearing in this matter was held at Longview, Washington on June 8 ,9 and 10,
2004. At the hearing the testimony of witnesses was taken under oath and the parties
presented documentary evidence. The record was extensive, comprising a stack of
1.documents over 14 inches high. The parties provided for a court reporter and a transcript
was made available to the Neutral Chairman for his use in making his determination of
the issues in dispute.
The parties agreed upon the submission of post hearing briefs which were timely
filed and received by the Neutral Chairman on September 14,2004. At the request of the
Neutral Chairman the parties waived the requirement contained in RCW 41.56.450 that
the Neutral Chairman issue his written determination of the issues within 30 days
following the conclusion of the hearing.
On December 6,2004 the Neutral Chairman issued a Memorandum addressed
Arbitration Panel Members Nelson A. Graham and Ricky J. Walsh setting forth tentative
conclusions with respect to each of the issues in dispute. On January 6,2005 the Neutral
Chairman met with Panel Members Graham and Walsh in Longview, Washington. Both
Panel Members Graham and Walsh raised certain concerns they had regarding some of
the conclusions set forth in the Memorandum.
Based on the record in the case, and the concerns raised by the Panel Members at
the January 6,2005 meeting, the following represents my Opinion and Award with
respect to the issues in dispute.
II. BACKGROUND AND NATURE OF DISPUTE
On January 12,2004 Executive Director Marvin L. Schurke of the Public
Employment Relations Commission certified six issues for interest arbitration pursuant to
RCW 41.56.450. With respect to three of these issues; Salaries and Wages,
Hours/Schedules, and Insurance Benefits the parties presented the Arbitration Panel with
several sub-issues. The other three issues before the Arbitration Panel are; Vacations,
Training, and Trading Privileges, also referred to as Shift Trades.
The unit represented by the Union here at the time of the hearing consisted of two
captains, seven lieutenants and twenty-seven firefighters.
In addition to the firefighter unit, there are employees in five other bargaining
units as well as non-represented employees. Employees in two of the five units, namely
the police and the fire battalion chiefs, are subject to the State of Washington Interest
Arbitration Law.
The parties have agreed upon a three year Agreement effective January 1 , 2003
through December 31, 2005.
III. COMPARATORS
In order to resolve issues in dispute between public fire departments and
firefighters, RCW 41.56.465(c)(ii) requires the Interest Arbitration Panel to establish a
list of public fire departments of similar size and employing like personnel on the west
coast of the United States. The statute also provides that when an adequate number of
comparable employers exist within the State of Washington, other west coast employers
may not be considered. Here, both parties agree that an adequate number of comparable
employers exist within the State of Washington.
The Union proposes the following comparators: Auburn, Bremerton, Edmonds,
Lynnwood, Mt. Vernon, Olympia and Puyallup for a total of seven comparators.
The City proposes the following comparators: Bremerton, Lynnwood, Mt.
Vernon, Mukilteo, Pasco, Port Angeles, Puyallup, Richland, Walla Walla, and
Wenatchee for a total of ten Comparators.
Four of the comparators are proposed by both parties, namely: Bremerton,
Lynnwood, Mt. Vernon, and Puyallup. The parties also are in agreement that cities
receiving fire suppression services from fire districts rather than supplying such fire
suppression services themselves to their citizens should not be included as comparators.
The last time the City and the Firefighters went to Interest Arbitration was in 1986
with respect to the 1986-87 Collective Bargaining Agreement. Additionally, George
Lehleitner who issued that Interest Arbitration Opinion and Award stated at page 10 that
the City and the Firefighters had not gone to interest arbitration with respect to any
collective bargaining agreement prior to the 1986-87 Agreement.
Neither party has contended that the comparators selected by Arbitrator Lehleitner
should be used in this case. Instead, the Union wants the comparators to be used in this
case to be based on an Interest Arbitration between the City and the Longview Police
Guild issued on October 8,2001 by Interest Arbitrator Luella E. Nelson with respect to
those parties 2000-2002 Collective Bargaining Agreement, hereinafter the Nelson Award.
Arbitrator Nelson established a list of nine comparators. The seven sought by the Union
in this case, as well as two additional cities, Lacey and Des Moines. However, the Union
did not include these two cities as the fire suppression work in these cities was performed
by fire districts, leaving the Union with seven comparators.
In selecting its proposed comparators, the Employer decided to identify city fire
departments of similar size by looking at the population and assessed valuation of cities
that fell within a band of 50% and 150% of Longview. Thus, to be included in this list a
city had to have a population of at least 17,645 but no more than 52,935 since the
Longview population in 2003 was 35,290. With respect to assessed valuation the use of
the 50% plus and 50% minus standard resulted in an assessed valuation range of 999
million to 2,998 million as the assessed valuation of Longview in 2003 was 1,998
million. (All assessed valuation figures have been rounded off to the nearest million.)
Vickie Taylor, the Employers Human Resources Director, testified that when a
screen of cities is run for 50% plus and 50% minus the population and assessed valuation
figure for Longview, ten cities are included. It is these ten cities which the Employer
proposes as the comparators. Ms. Taylors testimony is supported by several Employer
exhibits set forth in Exhibits Nos. B.l-B.lO. I agree with the Employer that the Unions
reliance on the Nelson Award as the basis of its proposal regarding the comparators to be
used in this case is not appropriate.
In her Arbitration Opinion and Award, Arbitrator Nelson reported that both
parties agreed that the comparators should have a population within 50-150% of that of
Longview. When this screen was run it was found that the 31 Washington cities were
within this band. Arbitrator Nelson chose nine of those 31 cities stating that in doing so
she was including:
[T]he stipulated jurisdictions of Bremerton, Lacey and
Olympia. It also gives weight to the parties history of using
certain comparators; Auburn, Edmonds, Lynnwood, and
Puyallup will be included for this reason. . . . Des Moines and
Mt. Vernon are both smaller cities which offset the larger
jurisdictions that dominated the historic comparators. . . .
(Nelson Award pg. 9.)
In the instant case, the Union determined to drop two comparators from the list
established by Arbitrator Nelson because, unlike the situation involving police protection,
the cities of Lacey and Des Moines did not provide their own fire suppression services.
In dropping two of nine comparators, the Union has reduced the list of comparators
established by Arbitrator Nelson by 22.2%. Additionally, one of those two cities,
Des Moines, was included by Arbitrator Nelson since it was a smaller city which offset
the larger jurisdictions that dominated the historic Comparators. (Nelson Award, pg. 9.)
With respect to the firefighter bargaining unit, no evidence was presented to
indicate that the parties have traditionally used certain cities as comparators in past
bargaining negotiations. In fact, of the 13 separate comparators proposed by either the
Union or the Employer in this case, only one was included on the list of eight
comparators selected by Arbitrator Lehleitner in his February 19, 1987 Award, namely
Olympia. Olympia was selected by Arbitrator Lehleitner as it was proposed by both the
Union and the City at that time.
The Union notes that Arbitrator Nelson excluded as comparators three
jurisdictions in Eastern Washington proposed by the Employer, namely Pasco, Richland
and Wenatchee and contends that even if the Arbitrator does not adopt the Unions
proposed comparators, he should not include cities located in Eastern Washington as
comparators. However, I note that the circumstances surrounding Arbitrator Nelsons
decision to exclude these three jurisdictions was her determination to give considerable
weight to the comparators previously used in negotiations. (Page 7.) Furthermore,
Arbitrator Nelson noted:
Other than arguments of counsel, no explanation has been
given for the sea change in comparators used by the city mid-
bargaining. The Arbitrator has compared the jurisdictions
deleted from the Citys prior list with those substituted. The
striking characteristic of the substitutions is that most of the
jurisdictions the City would add are smaller, poorer and more
geographically distinct from the City than those it would
delete. (Nelson Award, pg. 7.)
In the instant case, as already described, there is no evidence establishing a
practice by the parties of using particular comparators during prior negotiations.
Furthermore, the circumstances described in the above quoted paragraph are not present
in the instant case.
I do agree with Arbitrator Nelson that the location of a comparator within the state
is a factor that may be taken into account by an interest arbitration panel. One can
reasonably argue that geographic location is not an appropriate consideration regarding
comparators since the language of RCW 41.56.465(c)(ii) provides only for a comparison
of like personnel in public fire departments of similar size, in this case within the State
of Washington. However, geographic location certainly meets the test set forth in RCW
41.56.465(f) in connection with other factors, normally or traditionally taken into
consideration in the determination of wages, hours, and conditions of employment.
Interest Arbitrators have found it convenient to take into account the geographic
location of the city or county in dispute by considering its location in connection with the
determination of the appropriate comparators. Taking location or geographic proximity
into account, I find, as did Arbitrator Nelson, that Port Angeles is not an appropriate
comparator as it is located a significant distance from Longview in a relatively isolated
portion of the state. Moreover, it has both the smallest population and lowest assessed
valuation of the ten comparators. On the same basis, I would exclude Walla Walla, that
is it is located a significant distance from Longview in the Southeastern portion of the.state. Furthermore, with the elimination of Port Angeles, Walla Walla has the lowest
assessed valuation of the remaining nine comparators.
Finally, I would add as a comparator Olympia, which of all the comparators
proposed by the parties is the closest in location and has been used by the City of
Longview, the Firefighters and the Police as a comparator. As mentioned above,
Arbitrator Lehleitner reported that Olympia was an agreed upon comparator at the time of
his Interest Arbitration Award, and Olympia was also agreed upon by the City and the
Police Guild at the time of the Nelson Award. Olympia does meet the 50+ 50- criteria for
population, as it is slightly above this standard with respect to its assessed valuation.
Olympias assessed valuation at 3,115 million, is only 3.9% above the 50% plus assessed
valuation standard, which is 2,998 million.
The final list of comparators, listed in order of population is: Olympia, Richland,
Bremerton, Pasco, Puyallup, Lynnwood, Wenatchee, Mt. Vernon and Mukilteo. These
nine comparators include six in Western Washington and three in Eastern Washington.
The comparators selected were not cherry picked by the parties or the Arbitration Panel.
Instead, a system of 50+ and 50- with respect to population and assessed valuation was
used to reduce the comparators to a usable number and then an adjustment was made to
take into account geographic location. It is my hope that selecting comparators in this
fashion will allow the parties to see these comparators as fairly selected and thus willing
to use them over the course of the next several negotiations in order to bring stability to
the bargaining process.
I wish to point out that Arbitrator Nelson, in reaching her set of comparables, did
not rely on assessed valuation. With respect to firefighters as opposed to police, it is
clear that the majority of the work of firefighters is protecting property and, therefore,
assessed valuation can reasonably be argued to be more relevant with respect to
establishing comparators in cases involving firefighters than in cases involving police
officers.
The Union contends that the assessed valuation of the City may be low since it
does not reflect the fact that the City provides fire suppression services to certain
businesses located outside the city limits. However, this practice is not unique to
Longview and there is no agency, to my knowledge, which provides assessed valuation
figures for cities in this State based on the service area for which a city fire department
provides fire suppression service. Furthermore, no such information was provided in this
matter with respect to any of the Union or Employer proposed comparators.
Finally, I wish to point out that if the Union proposed comparators were adopted
the average comparator would have a population 6.7% above Longview and the average
comparator would have an assessed valuation 36.6% higher than Longview. If the
Employer comparators were adopted, Longview would have a population 13.5% above
the average comparator and 9.6% above the average comparator with respect to assessed
valuation. With respect to the comparators selected by your Arbitrator, the population of
Longview is only 4.0% above the average. With respect to assessed valuation, however,
the average of the comparators is 6.5% above Longview. Thus, the comparators selected
closely resemble Longview.
IV. WAGES AND SALARIES
A. General Wage Increase
The Unions proposed wage increase is as follows:
1. Effective January 1, 2003: wages at each step of the base salary for the
position of Firefighters and Fire Mechanic shall be increased by 8.8%
above December 31, 2002 levels.
2. Effective January 1, 2004: wages at each step of the base salary for the
position of Firefighter and Fire Mechanic shall be increased above their
December 31, 2003 levels by a percent equal to 100% of the Portland,
Oregon Consumer Price Index (CPI-W) for the period July 1, 2002 to July
1,2003 provided the percentage adjustment will be no less than 2.5% and
no more than 5%.
3. Effective January 1, 2005: wages at each step of the base salary for the
position of Firefighter and Fire Mechanic shall be increased above their
December 31, 2004 levels by a percent equal to a 100% of the Portland,
Oregon Consumer Price Index (CPI-W) for the period July 1, 2003 to July
2004 provided the percentage adjustment will be no less than 2.5% and no
more than 5.0%.
The Employers general wage increase proposal is as follows:
1. A 2% wage increase for the position of Firefighter and Fire Mechanic
above the December 31, 2002 rate. This increase shall be retroactive to
January 1, 2003 for all bargaining unit members employed at the time the
2003-2005 Collective Bargaining Agreement is settled.
2. Effective January 1 , 2004: wages for the position of Firefighter and Fire
Mechanic shall be increased above their December 3 1 , 2003 levels by a
percent equal to 85% of the Portland, Oregon Consumer Price Index
(CPI -W) for the period from July 1 , 2002 to July 1,2003.
3. Effective January 1,2005: wages for the position of Firefighter and Fire
Mechanic shall be increased above their December 3 1 , 2004 level by a
percent equal to 85% of the Portland, Oregon Consumer Price Index
(CPI-W) for the period July 1,2003 to July 2004.
The Employer proposal to modify the salary structure to adjust the step intervals
to be set at 4% or 5% intervals was withdrawn by the Employer during the hearing.
The Employer contends that with respect to the comparators in considering a
general wage increase, the base wage should be used. Further, the Employer contends
that since one third of the 27 firefighters receive a 5% premium above the top step
firefighter rate because they serve as driver/operators, the Longview figure to use in
making comparisons should be an average of the top step firefighter and driver/operator
wage rate. However, among the comparators that dont provide a driver/operator
premium are those that do provide other premiums, for example, a premium for
firefighters who also serve as paramedics. Such a premium is not available in Longview.
Traditionally, when base wage rates are compared for purposes of wage
comparisons in connection with interest arbitrations, the comparisons are made without
trying to take account of the wide variety of premium and specialty pays. Captain Randal
Bradshaw has been involved on behalf of the Union in contract negotiations for the past
12 years and has also held the office of either Union President or Vice President over the
that period of time. It was his uncontroverted testimony that the parties in the past when
comparing top step firefighter wages in various comparators as a basis of negotiations did
not average the wage figures received in Longview by the top step firefighter and the
driver/operator pay.
The Union contends that the most appropriate manner in which to compare
firefighters is to use total hourly compensation, which would include the base wage as
well as all other pays received by a top step firefighter divided by the number of hours
actually worked. I have set forth below a chart showing for both 2002 and 2003 the base
wage rate for a top step firefighter and have compared that to the same figure for
Longview in 2002. The chart also provides total hourly compensation figures.
The figures used in this chart come from Revised Union Exhibits Nos. 50 and 5 1.
In this regard, I note that the Union, at page 32 of its brief, states that the parties did agree
to certain minor adjustments in the data contained in those revised exhibits. These
adjustments actually favor the Employer.
The Employer, however, in its brief, beginning at page 19, contends that the
Union used a hodge-podge approach to calculating annual work hours by assuming 52
weeks in a year from some comparables and 52.14 weeks in a year for others. The result,
according to the Employer, is an apple to oranges comparison. The Employer then sets
forth two charts comparing the hours listed on Union Exhibit Nos. 50 and 51(fn:1) with what
it calls, HOURS CORRECTED FOR 51.14 WEEKS PER YEAR. With respect to the
Union comparators, the result is an average annual figure of six more hours than is shown
on Revised Union Exhibit No. 50.(fn:2) With respect to the Employer comparators, a proper
result cannot be obtained as the Employer did not include Richland in its chart at page 20
of its brief, nor has it provided any explanation for failing to do so.
______________
fn:1 The figures used by the Employer were taken from Union Exhibit Nos. 50 and 51 and not Union Revised
Exhibit Nos. 50 and 51. The only differences occur with respect to Pasco and Richland.
____________
fn:2 Union Revised Exhibit No. 50 and Union Exhibit No. 50, listing the Union comparators, contain
identical figures with respect to annual hours.
I have carefully reviewed the transcript of the proceedings, and at no time during
the proceedings did the Employer put on any evidence regarding the claim now made in
its brief that the Union improperly computed annual hours. I have no choice but to rely
on the Unions figures in this regard.
I agree with the Employers criticism of the inclusion of specialty pay in
computing total hourly compensation in Revised Union Exhibit Nos. 50 and 5 1 since the
extent of employee participation in specialty pay in the various comparators that provide
such pay is not clear from the record. Therefore, I have determined to exclude specialty
pay from inclusion in the computation of total hourly compensation and have set forth in
the chart below total hourly compensation with specialty pay excluded.
In the chart below I have given base wage figures for 2002 and 2003. The chart
does not contain hourly compensation figures for 2002 as those were not presented by the
parties and it would be difficult and quite time consuming to attempt to do so, even
assuming that all necessary information is contained in the record.
Base Wage Rates for Comparators in 2002 and 2003
(Rounded to Nearest Dollar) and Hourly Compensation
Comparator Listed
in order of 2003 2002 Base 2003 Base 2003 Hourly
Base Wage Rate Wage Rate Wage Rate Compensation
Puyallup $4,856 $4,978 $30.09
Bremerton $4,711 $4,906 $27.63
Lynnwood $4,737 $4,867 $30.27
Olympia $4,644* $4,830* $27.22**
Mukilteo $4,503 $4,670 $26.22
Pasco $4,279 $4,453 $24.19
Richland $4,253 $4,403 $27.17
Mt. Vernon $4,140 $4,316 $25.19
Wenatchee $4,163 $4,288 $24.18
Average $4,476 $4,635 $26.91
Longview 2002 $4,551 $4,551 $25.31
Difference: Longview 2002: Average 2003: Average 2003:
1.7% Above 1.8% Above 6.3% Above
Average Longview 2002 Longview 2002
Average Base Wage Rate Increase of 9 Comparators 2003 Over 2002: 3.6%
* Olympia Wage Rate less mandatory deferred compensation contribution of 1.5% in 2002 and 2.5% in 2003.
** Olympia Hourly Compensation includes $123.84 deferred compensation contribution.
The chart shows that the average increase in the base wage of the comparators in
2003 over 2002 was 3.6% The chart also shows that in 2002 Longviews base wage rate
of $4351 ranked Longview 1.7% above the average of $4,476.
With respect to hourly compensation,(fn:3) the average comparator in 2003 is 6.3%
above the same figure for Longview in 2002. A significant part of this difference relates
to total hours worked.(fn:4) In this regard, the average total hours worked in the comparators
for 2003 is 2264. The total hours worked by firefighters in 2002 at Longview was 2305,
meaning that Longview firefighters worked 41 hours more total hours than the average of
the comparators on an annual basis. This places Longview firefighters 4th out of 10
comparators, including Longview, in total hours worked, and 1.8% above the average.
______________
fn:3 In computing hourly compensation, the Union used a 13 year Firefighter. The Employer has not
contended that the use of a 13 year Firefighter in this regard is improper and I have relied on the Unions figures.
fn:4 Total hours includes annual hours less vacation and holidays
All of the foregoing demonstrates that based on a comparison of the comparators
to Longview, Longview firefighters are entitled to a raise in excess of the 2% proposed
by the Employer. The question that remains is, how much in excess of 2% is
appropriate?
The Union contends that the Arbitration Panel should base an increase on the
average hourly compensation received by the comparators, which is 6.3%. However, the
Union based its wage proposal on the 2003 average hourly compensation of the Unions
proposed comparators over Longview in 2002 which was 12.72%. The Union sought an
8.8% increase, stating that its base wage proposal was designed to allow Longview
firefighters to make significant progress (Union brief, pg. 15) towards receiving hourly
compensation close to the average of the comparators. The Union also states that it has
made additional proposals to improve Longview firefighters hourly compensation in
order to give the Arbitration Panel some flexibility (Union brief, pg. 15) toward the
Unions overall goal of significant progress in hourly compensation that is close to the
average of total hourly compensation of the comparators.
My experience as an Interest Arbitrator, which goes back approximately 25 years,
teaches that most arbitrators are unlikely to award an amount that would fully close a gap
in hourly compensation over the course of one contract, particularly in a non-inflationary
environment as has been the case over the past few years. However, significant progress
in closing that gap is warranted. Therefore, I conclude that a raise that would close the
gap by 75% would be appropriate. Such a raise comes to 4.7%, which would provide a
base rate of $4,765. A raise in the base wage rate $4,765 would place Longview 5th of
the 10 comparators, including Longview, the same position it held in 2002, but Longview
will be 2.8% above the average of the nine comparators in 2003 as opposed to being only
1.7% above the average of the nine comparators in 2002.
In comparison, the 2% raise proposed by the Employer in base wage rate would
leave Longview firefighters with a base wage rate of $4,642, dropping Longview to 6th
out of the 10 comparators including Longview, and less than 0.2% above the average of
the comparators. Thus, a 2% general wage increase would leave Longview firefighters in
a considerably worse position than they were in 2002 vis-a-vis the comparators.
Additionally, I find that the evidence does not support the Employers proposal that the
wage increase be retroactive only for those bargaining unit members employed at the
time the 2003-05 Agreement is settled by an arbitrator ruling.
With respect to the second two years of the Agreement, I note that at least for the
past two contracts the parties when using the CPI as a basis of establishing wage
increases have used 85% of the Portland CPI-W with a minimum of 2.5% and a
maximum of 5%. The CPI for the relevant periods with respect to establishing the wage
increase for 2004 and 2005 is less than 2.5%. In determining to order a 2.5% increase for
the second two years of the Agreement, I note the increases in the comparators in 2004 as
compared to 2003. Union Exhibit No. 52 lists these increases for six of the nine
comparators, which had settled at the time of the hearing. The average of these six
comparator increases in 2004 over 2003 is 2.7%.5 The foregoing supports a 2.5%
increase in 2004 and 2005 in order to allow Longview firefighters to continue to keep the
benefit of the gain in wages vis-a-vis the comparators as a result of a 4.79% increase
granted for 2003.
___________
fn:5 With respect to Richland, I used 3% since there was a 2% increase January 1,2005 and another 2%
increase July 1,2005. Only three comparators had settled for 2005 and thus the average increase of 3%
was not particularly meaningful, but provides some support for a 2.5% increase in 2005.
The general wage increase I conclude should be 4.7% for 2003,2.5% for 2004,
and 2.5% for 2005.
B. Deferred Compensation
Presently the Employer will match an employees contribution to the Citys
Deferred Compensation Plan up to maximum of 3.5% of the monthly base salary of a top
step Firefighter.
The Union proposes that the Employer contribute 6.2% based on each employees
base salary to the existing deferred compensation plan and eliminate the requirement that
the Employer contribution be based on a match of what the employee contributes. A
review of the comparators indicates that seven of the nine comparators provide for
deferred compensation. The average of the nine comparators, including the two who do
not provide any deferred compensation, and including a 2.5% figure for Olympia of
$123.84, comes to $134.98, leaving Longview 18% above the average with respect to
deferred compensation.
Based on the foregoing, I conclude that the Unions proposal should be rejected.
C. Education/Tuition Reimbursement
Presently the Agreement requires at Section 6.5.3 that employees obtain an
Associate Degree within four years of completion of their probationary period.
Currently, it is the Citys practice to reimburse employees for their costs in connection
with obtaining that degree. The City proposes for employees hired after July 2003 to put
language in the Agreement which would end this practice and, instead, require that the
cost of tuition, books, and other costs previously reimbursed by the City be borne by the
employee. The Union proposes no change in the current language and practice.
The City points out that its proposal is in line with the practice in all other
bargaining units in the City, which is that if an employee is hired without a degree in a
situation where an employee must earn a degree within a certain period of time, the City
is not required to reimburse the employee for his or her costs in connection with getting
that degree. However, it is not clear from the record, with the exception of the police,
that the City does hire individuals prior to the individual having completed a degree and
then requires that the employee meet this requirement in some number of years thereafter.
The Employer also argues that now is the appropriate time to place into effect its
proposal since no employee presently working in the firefighter unit would be affected.
I find myself in agreement with the Union that whether or not the City determines
to hire an individual prior to the individual actually having received an Associate Degree
is a matter fully in the control of the Employer. Thus, clearly the Employer could simply
eliminate any costs of tuition reimbursement by not hiring individuals who do not have
an Associate Degree at the time of hire. Furthermore, as the Employer recognizes, there
has been very little turnover in the bargaining unit and there is no indication in the record
that the Employer would have difficulty securing firefighters if it required that an
individual have an Associate Degree before being hired as a firefighter.
Based on the foregoing, I conclude the Employers proposal should be rejected.
D. Emergency Overtime
Pursuant to Section 6.3.2 of the Agreement, emergency overtime is paid at the
rate of 2.544 times the employees regular hourly rate of pay. The Employer proposes
that this amount be reduced to double time which would amount to 2.0 times the
employees regular hourly rate of pay. The Union proposes no change to Section 6.3.2.
As the Employer points out, only one of the comparators provides a premium for
emergency overtime. Thus, eight of the nine comparators pay only time and one half for
emergency overtime. The only exception is Puyallup which pays double time for the first
hour and time and one half thereafter.
The Union, on the other hand, contends that this provision has been a part of the
parties Collective Bargaining Agreements dating back to 1974 and should not be
changed. There is no evidence in the record to indicate what the situation was in 1974
with respect to the comparators. In any event, it is appropriate after 30 years to review a
contractual provision to see if it is appropriate in the present environment.
As I have already indicated, the evidence clearly demonstrates that a provision
calling for 2.544 time an employees regular wage rate for emergency overtime is simply
uncalled for based on the present day comparators. Therefore, I conclude that the
Employers proposal is appropriate. The Employer does not provide any effective date
for the implementation of its proposal. I conclude that it should be implemented effective
with the date of this Award, as it is not realistic to require employees to pay back monies
earned during the period prior to an order implementing the Employers proposal.
Further, even if the wage increase ordered by this Award would cover any reduction in
overtime pay, it is not appropriate to require employees to lose money previously earned.
Based on the foregoing, I conclude the Citys proposal should be adopted,
effective the date of this Award.
V. HOURS/SCHEDULES
A. FlexTime
Presently the Agreement provides at Section 7.1.1 that employees are entitled, in
addition to the Kelly days referenced in Section 7.1 , 72 hours per calendar of flexible
time which amounts to three 24-hour shifts. The Employer proposes that effective
January 1, 2005 each employee shall be granted 48 hours of flex time per calendar year,
amounting to a reduction of one 24-hour shift or one third of the flex time presently
available to employees. In exchange for reducing the flex time, the City proposes to
provide each employee with a $525 annual contribution to an individual Voluntary
Employee Benefit Account (VEBA). Additionally, the Employer proposes that all
requests for flex time that result in the need for overtime will be denied.
The Union opposes the Employers proposal and, instead, proposes that flex time
be expanded from 72 hours to 132 hours per calendar year. This proposal would come
close to doubling the flex time available to bargaining unit members. Furthermore, the
Union opposes the overtime restriction on the use of flex time proposed by the Employer.
The bargaining history surrounding the creation of the flex time provision
supports the Unions opposition to the Employer proposal. It is not disputed that after the
execution of the 1997-99 Agreement, a number of problems arose causing the parties to
negotiate a mid-term contract amendment. This 1997-99 Amended Labor Agreement
was executed on February 2, 1999. Among the reasons the parties determined to
conclude a mid-term amendment were: (1) the change from two fire units to three fire
units, (2) the expanded number of firefighters on shift from 11 to 12, and (3) the raise in
minimum manning from eight per shift to nine per shift. Furthermore, by requiring an
additional person on each shift something needed to be done about the 11 day cycle that
was in effect at the time. Additionally, the City was concerned about the large amount of
compensatory time on the books and the fact that there was no contract provision limiting
compensatory time accrual. While these scheduling issues were not the only issues that
caused the parties to negotiate a mid-term contract amendment, they clearly were
significant in view of the operational changes the Employer was making at the fire
department.
As Captain Bradshaw testified, without contradiction, one aspect of resolving the
scheduling problems was to eliminate the employees ability to accrue compensatory
time and to allow the Employer to cash out accrued compensatory time. In return the
Union received flex time and the right to use it in the manner spelled out in the Amended
1997-99 Labor Agreement, which language was carried forward to the 2000-02
Agreement. Thus, here we have a situation where major negotiations involving
scheduling were held in 1998 and signed off in February of 1999, which was only a few
years before the commencement of the Agreement before the Arbitration Panel.
The Employers proposal could not be implemented retroactively and, in fact, the
Employer does not seek to have its proposal effective until January 1, 2005. Since the
parties will begin negotiating a new agreement effective January 1, 2006 during the 2005
year, I shall not order a change in the flex time provision. At this point, any changes
would be better left to bargaining by the parties for possible implementation effective
January 1, 2006.
With respect to the Unions proposal to increase flex time, I reach the same
conclusion. As the Union points out in its brief, it was proposed, at least in part, to
provide the panel with some flexibility as to the manner in which the panel should take
steps to increase the total hourly compensation of bargaining unit members. For reasons
already discussed, it seems most appropriate to address this matter through a significant
increase in hourly compensation, which I have recommended.
Therefore, no change in flex time is appropriate.
B. Overtime Shift Changes
The Union proposes a definition of overtime in Article 6 which would prohibit the
City from moving bargaining unit members from one shift to another shift without the
payment of overtime. Furthermore, the Union proposes new language in Article 7 which
would require the Employer, on or about November 1 of each year, to assign personnel to
one of three shifts for the following year.
In its brief the Union states that this proposal is necessary in order to prevent the
Employer from unduly disrupting the scheduled time off of bargaining unit members.
Further, the Union points out that if the City knows it will incur overtime if it moves a
bargaining unit member from one shift to another shift on short notice, the City would be
encouraged to order disruptions in schedules only when absolutely necessary.
The Employer opposes this proposal.
Captain Bradshaw made clear that no matter what the reason for the proposed
shift change, it could not be made by the Employer without incurring overtime. Thus, if
the Employer had to make a shift change because of an employee absence, even for
situations involving training, disability leave or military leave, overtime would be
required.
Battalion Chief Philip Jurmu testified that he tries to give two weeks to a months
notice regarding a shift change and his research revealed that the shortest notice had been
six days. He further testified that he does not mandate shift changes but seeks volunteers.
He also testified that if he is unable to get a volunteer, he does end up paying overtime in
order to cover a shift that is short an employee. Jurmu admitted, however, that he did
have the authority to require an employee to change shifts rather than filling a shift that is
short by an employee on overtime.
Although the Union took the position that its proposal was primarily directed at
what it called short notice changes, there is nothing in its proposal that would exempt
situations where an employee was given an extensive amount of notice. Thus, Captain
Bradshaw admitted that even if an employee received 90 days notice of a shift change,
overtime would apply,
Based on the foregoing, I conclude that the Unions proposal should be rejected.
C. Productive or Structured Hours
Presently, routine work such as drills, inspections, training, etc. are performed
during work time, which is defined as beginning at 8:00 a.m. and ending no later than
5:00 p.m. Monday through Friday, with the hours between 5:00 p.m. and 7:30 a.m. being
considered standby time for the purposes of emergency response. Employees receive 60
minutes for lunch Monday through Friday. Work time on Saturday is from 8:00 a.m.
until noon and work time on Sundays and holidays is from 8:00 a.m. to 9:00 a.m. All
other hours on Saturdays, Sundays, and holidays are considered as standby time.
Additionally, employees are allowed to take up to one hour of physical exercise during
work time Monday through Friday.
The City proposes to expand what it refers to in its brief as productive hours,
and what the Agreement refers to as work time, to 8:00 a.m. to 5:00 p.m. seven days a
week and from 8:00 a.m. until noon on holidays. Further, the City would eliminate the
requirement that the employees be given up to an hour for physical exercise during work
time.
It is true that six of the nine comparators do not distinguish between work time
and standby time. On the other hand, if the Employer proposal were adopted it would
provide for a larger amount of work time than is presently the case in the three
comparators that do distinguish between work and standby time. (Employer Exhibit Nos.
2.2.3. and 2.2.4)
The Employer has not demonstrated that it is presently unable to accomplish
routine work during work time. Furthermore, the Agreement does contain a provision
allowing the Employer to perform routine work on standby time provided standby time is
reimbursed to the employee within 30 days from the date it was worked, unless otherwise
agreed to by the affected employee.
In view of the foregoing, I conclude that the Employer proposal should be
rejected.
VI. VACATIONS
Presently Section 9.4 of the Agreement allows employees to cash in accrued and
unused vacation for payment on an hour for hour basis at the employees current base
hourly rate of pay. However, employees are limited to a maximum of 48 hours. The
Union seeks to raise this limit to 120 hours.
The Employer opposes any change with respect to the vacation buy-back
provision. In support of its position, the Union states that its proposal will provide an
incentive for bargaining unit members to cash in their vacation hours rather than using
those vacation hours, thereby assisting the City to maintain minimum staffing levels more
frequently without the need to call an employee back on overtime. Additionally, the
Union points out that its proposed change will provide employees with more flexibility as
to the manner in which they can use their vacation leave benefits.
The Employer, in opposing this proposal, states that it does not wish to increase
what it contends amounts to an unfunded liability, currently up to 120 hours, that is 72
hours of flex time and 48 vacation hours.
Additionally, the Employer points out that during the three year period 2001 -
2003, bargaining unit employees averaged vacation buy-backs of 18.61 hours annually,
which is substantially less than the 48 hours already allowed employees. (City Exhibit
No. 3.4.)
The primary purpose of a vacation provision is to provide employees with time
off from work. Employees with up to five years of service presently receive five shifts or
120 hours of vacation. Thus, if the Unions proposal were adopted these employees
would be in a position to cash in their entire vacation leave benefit, leaving them without
any vacation.
Finally, a review of the comparators reveals that eight of the nine do not provide
for vacation buy-backs and the ninth, Bremerton, has a more restrictive buy-back
program.
In view of all of the foregoing, I conclude that the Union proposal should be
rejected.
VII. INSURANCE BENEFITS
A. Cost Sharing
Presently, the Agreement provides that the City will pay 90% of the total
premium based on the highest cost composite rate, provided the Citys contribution does
not increase by more than 10% per annum. If, however, the costs increase by more than
10% per annum the City and the employees will bare equally the added costs.
The Union proposes to return to the system in effect during 1997-99 Agreement
under which the Employer bore 90% of the premiums even if there was an increase of
more than 10% year over year. In support of this proposal, the Union points out that
2004 was the first year that the application of the current formula for determining and
allocating insurance premium payments has resulted in neither of the insurance options
being available cost free to employees, while during 200 1 through 2003 application of the
formula resulted in at least one option being available that did not include any premium
cost to employees.
The Employer seeks to maintain the current system of funding insurance
premiums. Furthermore, it was Ms. Taylors uncontroverted testimony that during the
bargaining in connection with the prior Agreement in which the present system was put
in place, the City explained that it was likely in the future that premiums would rise to the
point that both plans would eventually cost the employees money. Furthermore, I agree
with the Employer that with respect to the purchase of health of insurance, internal
comparisons are important because of the difficulty, as testified to by Ms. Taylor, of
trying to buy individual plans for each employee group. In this regard, Ms. Taylor
testified that as of 2005 all employee groups will have in place a provision requiring a
5060 sharing of premium increases over 10%.
In view of all of the foregoing, the Unions proposal is rejected.
B. VEBA Account
The Union seeks a provision requiring the Employer to place $500 into an
individual VEBA account for each employee. The Employer opposes this proposal.
As the Union points out, Captain Bradshaw testified that after the prior contract
was executed, the Employer, as was its right, unilaterally changed one of its insurance
providers switching from Regence Blue Shield Group Health Care Plan to AWC Regence
Plan. By making this switch, the City saved approximately $200 per month per
employee. Further, the insurance policy provided by the new carrier, AWC Regence, did
not provide the same level of benefits, particularly with respect to what was referred to at
the hearing as wellness benefits. The parties, in November of 2000, executed a
Memorandum of Understanding (MOU) which provided for a $300 VEBA benefit for
each active bargaining unit employee for the years 2001 and 2002. The MOU
specifically states that the VEBA benefit was provided in recognition that the AWC
Regence plan had an annual cap on routine preventive coverage whereas the Regence
Blue Shield plan did not.
The Employer has not made VEBA contributions for the years 2003 or 2004. In
this regard, the Employer points to the fact that the MOU specifically provided that it
expired on December 31, 2002. The Employer also points to the testimony of Ms. Taylor
that since the expiration of the MOU, the AWC Regence Plan has increased its wellness
benefit so that it is equal to the benefit in place prior to the change in insurance carrier.
Based on all of the foregoing, I conclude that the Union proposal should be
rejected.
C. Life Insurance
The Union has not provided sufficient justification for its proposal to increase the
life insurance benefit from $10,000 to $50,000. Therefore, I conclude this proposal
should be rejected.
D. Benefits Committee and Flexible Spending Accounts
The Union proposes to eliminate language regarding these two matters which are
contained at Sections 10.6 and 10.7 of the Agreement. Ms. Taylor testified that the
parties did not discuss these Union proposals during negotiations. Since the benefits
committee is a City wide employee labor management committee, I have concluded that
it should not be eliminated from the Agreement. Furthermore, participation in the
benefits committee by the Union does not in any way obligate it to agree to any particular
proposal. In this regard, Section 10.6 establishing the benefits committee makes clear
that the committee cannot bind either the City or any participating union to any decision
or course of action.
With respect to Section 10.7, Flexible Spending Accounts, the City indicates in its
brief at page 59 that it no longer opposes deletion of this language and, therefore, this
language shall not be included in the new Agreement.
I conclude that the Section 10.6, Benefit Committee will be included in the 2003-
05 Agreement and Section 10.7, Flexible Spending Accounts will not be included
VIII. TRAINING
Presently, Section 12.3 provides that if a training program is to run for three or
more consecutive calendar days, the Fire Chief may assign employees to an eight hour
work per day schedule pursuant to certain conditions which include:
a) The employee shall receive a minimum of two consecutive days off preceding and
following the scheduled training.
b) All travel and training time in excess of eight hours per day shall be paid at the
overtime rate.
c) Assignment of an eight hour work schedule shall not affect an employees wages,
Kelly days, accrual of sick leave and vacation leave, or other benefits.
d) Each employee shall be notified a minimum of five calendar days prior to
assignment to an eight hour per day work schedule.
The Union seeks to eliminate all of the above to prevent the altering of schedules for
training purposes.
The Employer proposes to include the entire provision regarding three or more
consecutive calendar days of training with one change. That change is to subparagraph a)
and it would provide that the employee would receive a minimum of one day off both
proceeding and following the scheduled training instead of a minimum of two
consecutive days off.
The provision allowing the Fire Chief to assign employees to an 8 hour work per
day schedule where training is to run for three consecutive days or more is, as I
understand it, unique among the comparators. However, any change regarding training
could not be accommodated until the last year of the contract. With bargaining for a new
contract to begin during 2005, I conclude that it is not appropriate to change Article 12,
Training, in either the manner proposed by the Employer or the Union.
IX. TRADING PRIVILEGE OR SHIFT TRADES
The Employer proposes a major change with respect to Article 16, Trading
Privileges, specifically these change include:
1. An annual cap on the number of shift trades where no such cap presently exists.
2. A requirement that approval for a shift trade must be obtained at least five
calendar days in advance of the first shift involved in the trade as opposed to the
current practice where there is no specific advance notice requirement.
3. Trades of more than three consecutive shifts will require, in addition to approval
by the Fire Chief as is presently the case, a requirement of approval by the City
Manager.
4. A new requirement which would prohibit partial shift trades of less than four
consecutive hours.
5. A new requirement requiring that trades must be work for work, meaning, for
example, that an employee who is unable to complete work because he is ill will
not be entitled to sick leave.
6. A new requirement that if a substituting employee fails to appear, the employee
who had requested the trade, if at work, has a continuing obligation to perform the
duty and if the requesting employee is not at work, he or she will be contacted to
report to work as originally scheduled.
7. Broad language requiring that shift trades not impair department
efficiency/operations in any way.
The Union proposes changes to Article 16 which the Union states are intended
only for the purpose of clarifying the parties past practice of allowing bargaining unit
members to use earned leave time, such as sick leave, with respect to a shift trade in the
same fashion as would be the case on the employees regularly scheduled shift.
The City also has proposed a language change with respect to Section 7.5 of the
Agreement which the City believes will clarify its present practice regarding the
treatment of vacation, sick leave and other forms of earned time off as hours worked
when calculating an employees overtime entitlement. As I understand it, the Union
opposes this change.
The issue here is one of significant concern to both parties. They bargained about
this matter extensively during negotiations for the prior Agreement. Furthermore, the
parties agreed, at least in concept, during those negotiations that, as in the past, a trade
should not result in additional cost to the City. Furthermore, it was agreed during those
negotiations that the Employer represented by Deputy Chief Lafave and the Union
represented by Captain Bradshaw would develop a standard operating procedure with
respect to shift trades. Deputy Chief Lafave has since left the City and the parties have
not jointly developed such a procedure.
The Arbitration Panel recognizes that developing a trading privilege procedure is
a complicated matter involving significant concerns both to fire department management
and firefighters. Also the requirements of the FLSA must be taken into consideration
with respect to any proposed change in language regarding Article 16 and Section 7.5 of
the Agreement.
Before the Arbitration Panel attempts to separately take into consideration the
views of both parties and draft a new Trading Privilege article, it is appropriate for the
parties to attempt one more time to reach agreement with respect to a standard operating
procedure for shift trades. Therefore, the following procedure will be implemented:
1. The parties shall have 90 days from the date of this Opinion and Award to engage
in bargaining in an attempt to reach agreement with respect to shift trades,
including consideration of the various proposed changes to the language of
Article 16 and Section 7.5 of the 2000-02 Agreement.
2. If the Neutral Chairman has not been notified within 90 days of the date of this
Award (that is no later than April 1 1,2005) that the parties have reached an
agreement with respect to the matters described in Paragraph 1. above, the Neutral
Chairman will contact counsel and convene a special hearing regarding this
matter. At the hearing each party will not be limited to the proposals presently
before the Arbitration Panel. Each party will have no more than two hours to
make its presentation which may include additional evidence and additional
argument.
3. The hearing will be conducted before the Arbitration Panel and at the conclusion
of the presentation of evidence and argument, the Panel will meet to consider both
the evidence and argument already in the record as well as any new evidence and
argument each party provides at the hearing. The Arbitration Panel will consider
the evidence immediately after the close of the hearing. The Arbitration Panel
will endeavor to provide a final arbitration Award by the end of the day on which
the hearing is held.
4. The Arbitration Panel reserves jurisdiction for the sole purpose of putting into
place the procedure described above.
X. ABILITY TO PAY
The Employer placed in evidence documentation regarding what it describes as its
difficult economic situation. Certainly the financial condition of the Employer may be
considered under RCW 41.56.465(f) regarding other factors normally or traditionally
taken into consideration in the determination of wages, hours, and conditions of
employment.
The City priced the Unions proposal, if fully granted, as costing approximately
$1.6 million in new wage and benefit expense through 2005. The city also presented
evidence indicating that its proposal would cost approximately $433,000. I have not
specifically performed a cost analysis of the proposals I have recommended, but roughly
speaking, the cost would come to about one half of what the Union is seeking.
I have considered the Employers difficult economic situation and my Award is
within the Employers ability to pay.
AWARD OF THE NEUTRAL CHAIRMAN
The Award of the Neutral Chairman is as follows:
I. WAGES AND SALARIES
A. General Wage Increase
1. Effective January 1,2003 a 4.7% wage increase at each step of
the base salary for the position of firefighters and fire mechanic.
2. Effective January 1,2004 a 2.5% wage increase at each step of
the base salary for the position of firefighter and fire mechanic.
3. Effective January 1,2005 a 2.5% wage increase at each step of
the base salary for the position of firefighter and fire mechanic.
B. Deferred Compensation
No change in current contract language.
C. Education/Tuition Reimbursement
No change in current contract language.
D. Emergency Overtime
The Citys proposal shall be adopted effective the date of this
Award.
II. HOURS/SCHEDULES
A. FlexTime
No change in current contract language.
B. Overtime/Shift Changes
No change in current contract language.
C. Productive or Structured Hours
No change in current contract language.
III. VACATIONS
No change in current contract language.
IV. INSURANCE BENEFITS
A. Cost Sharing
No change in current contract language.
B. VEBA Account
The MOU executed November 9,2000 establishing the $300
VEBA Account has expired. No additional VEBA benefit is
appropriate.
C. Life Insurance
No change in current contract language.
D. Benefits Committee and Flexible Spending Accounts
Section 10.6 Benefits Committee will be included in the 2003-05
Agreement and Section 10.7 Flexible Spending Accounts will not
be included in the 2003-05 Agreement.
V. TRAINING
No change in current contract language.
VI. TRADING PRIVILEGE OR SHIFT TRADES
The Employer and the Union shall follow the procedure outlined in
Section IX, Trading Privilege or Shift Trades. The Arbitration Panel shall reserve
jurisdiction for the purpose of implementing the procedure set forth in Section IX,
Trading Privilege or Shift Trades.
Dated: January 11, 2005
Seattle, Washington
___________________________
Michael H. Beck, Neutral Chairman
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.