City of Bellingham

And

Staff Officers of I.A.F.F. Local No. 106

Interest Arbitration

Arbitrator:      Val D. Spangler

Date Issued:   05/01/1981

 

 

Arbitrator:         Spangler; Val D.

Case #:              03430-I-81-00081

Employer:          City of Bellingham

Union:                IAFF; Local 106

Date Issued:     05/01/1981

 

 

                                                Arbitration Opinion

                                                            and     

                                                         Award   

 

In the matter of interest arbitration between Staff Officers of I.A.F.F Local

# 106, Union and City of Bellingham, City.

 

Case. no. 3430-I-81-81.  Arbitrator, Val D. Spangler.

 

I.          Background:

 

            On October 29, 1976, the City of Bellingham filed a petition with the Public

Employment Relations Commission seeking clarification of an existing bargaining

unit.  Substantial delay occurred in the processing of the case while the par-

ties awaited rulings on similar issues on other cases then pending before the

Commission.  The City made a request to proceed on May 3, 1978.  A hearing was

held by a P.E.R.C hearing officer on August 14, 1978, with both parties filing

post-hearing briefs, the last of which was received by the hearing officer on

October, 1978.

            The order clarified the existing bargaining unit of "all regular full time

uniformed employees of the Bellingham Fire Department except the Fire Chief and

the Assistant Chief" "to exclude the Battalion Chiefs) the Fire Marshall and

Medical Services Officer in addition to the previous exclusion of the Fire Chief

and Assistant Chief."  That order was dated January 17, 1979.

            This bargaining unit of Staff Officers of I.A.F.F. Local #106 was formed

in 1980.  Present positions in the bargaining unit include 3 Battalion Chiefs,

one Fire Marshall, one Medical Services Officer and one Chief Training Officer.

            Negotiations for this contract commenced September 4, 1980.  Eight negoti-

ations sessions were held through January 30, 1981.  Mediation was conducted

commencing March 27, 1981, for four sessions, the last being April 26, 1981.

Additional efforts were made to settle but were not successful.  The parties

were declared to be at impasse and were directed to proceed with interest arbi-

tration in a letter of May 4, 1981, from Mr. Marvin Schurke, Executive Director,

P.E.R.C..

            The parties agreed to submit the remaining issues in dispute to this single

arbitrator.  A  hearing was held on June 24 and June 25, 1981, for a total of 15

hours.  The hearing was formally closed by operation of the arbitrator's receipt

on July 8, 1981, of a letter from the representative of the City dated July 6,

1981, accepting the Union's withdrawal of its proposed Article - Position

Elimination.  This issue had remained unsettled because of the parties' desire

to obtain legal opinions on the jurisdictional matter raised by the arbitrator

at the hearing regarding this issue.

 

II.        Issues:

 

            1 .        Purpose

            2.         Union membership

            3.         No strike

            4.         Prevailing rights

            5.         Management rights

            6.         Position elimination

            7.         Bereavement leave

            8.         Hours of work

            9.         Overtime

            10.       Vacation

            11.       Union management relations

            12.       Longevity

            13.       Educational incentive

            14.       Wages

            15.       Duration

 

III.       Positions of the Parties:

 

                        Purpose.  Agreement reached by the parties at the hearing.

 

                        Union membership.  The Union seeks an agency shop type clause that is

modified to allow non-members of the Union to have voting rights on "any

and all collective bargaining matters (but not internal Union functions)."

Provisions for dues deduction also is requested.  The gist of the Union's

argument for this clause was that of "past practice."  The contention being

that these employees had the right and protection when members of the

regular firefighters' unit and should not lose that right because of the

clarification of that unit.  Comparison to the conditions of employment in

other cities and counties was not made.

            The City bases its firm opposition to the institution of compulsory

union membership or compulsory service charges in lieu thereof for several

reasons but particularly because of the management nature of this group and

the fact that five out of six members of the bargaining unit already have

dues deductions operating.  The City indicates, "where mandatory membership

exists in labor agreements in comparable cities, such provisions  have been

included by mutual agreement of the parties," not by interest arbitration.

The vast majority of management personnel in fire departments in comparable

cities have no obligations for involvement in union membership whatsoever.

 

            No strike.  Agreement reached by the parties just prior to the hearing.

 

            Prevailing rights.  The Union indicates its desire to maintain as

broad protection for the employee as possible while respecting the

need for a simple agreement that is "management oriented."  This language

was available in the previous bargaining unit agreement and the Union feels

the employees have been hurt in the two years they have been without cov-

erage by a collective bargaining agreement.  The Union wants "at least the

same protections as the employees they supervise."

            The City's position is basically two-fold.  First, the ambiguity and

uncertainty created by such a clause threatens to destabilize the Agree-

ment and the Union-City relationship.  Second, the clause is inconsistent

with the statutory framework for bargaining in that it discourages good

faith bargaining efforts of the parties to achieve a definitive and

administrable agreement.

 

            Management rights.  The City proposes its detailed and strong manage-

ment rights clause as being consistent with sound labor-management rela-

tions, contributing to full and mutual understanding as an appropriate

quid pro quo for rights agreed to by the City and not inconsistent with the

clauses in comparable cities.

            The Union's position is that no management rights be included at all

and particularly not one that is so strong.  The city's position is viewed

as impugning the integrity of the employees of the unit who consider them-

selves to be a part of management and not susceptible to the conflict of

interest problems the City views as inherent in having supervisory employees

represented by the same exclusive bargaining representative as that of the

employees they supervise.

 

            Position Elimination.  Proposed article withdrawn by Union.

 

            Bereavement leave.  Agreed to by the parties just prior to the hearing.

 

            Hours of work.  Agreed to by the parties just prior to the hearing.

 

            Overtime.  The Union is seeking time-and-one-half pay for all hours

worked in excess of normal hours on the basis of two thousand eighty hours

per year for all employees in the unit.  Employees shall have a choice

of receiving a cash compensation or compensatory time. Although not clearly

indicated by the language of its proposal the Union expects the over-

time pay to be applied to emergency call back not regular (e.g., staff

meetings) type duties in excess of 40 hours per week.  The Union again

stated its belief that the benefits available to the staff officers should

be no less than that of the employees they supervise.

            The City presented its position as being a package proposal including

its offers on both overtime and vacation.  Unless the City's offer regard-

ing improved overtime pay is coupled with a change in the vacation benefits

available to Battalion Chiefs, the City's position is that there can be no

change in either.  The City indicates strong opposition to the idea of the

Battalion Chiefs having the best of both worlds by getting time and one

half for overtime and staying on the comparatively better exempt employee

vacation plan.  Comparability data indicates the position of the City to

be better than all but one of the 12 comparable cities used by the City.

 

            Vacation.  As explained in the preceding section on overtime the City

is seeking to modify downward the benefits available to staff officers on

the exempt employee plan if they are to be paid overtime according to the

terms proposed.

            The Union seeks to continue to receive the favorable vacation schedule

and be eligible for time and one half for the overtime.

 

            Union management relations.  The Union is seeking to have, after

appropriate notice, the City pay for the replacement of one of the Battalion

Chiefs for each session of negotiations when that Battalion Chief is work-

mg a 24 hour shift and for no loss of pay for any staff officer attendance

at any of these sessions during his normal working hours.  The small number

of people in the unit makes such a release imperative for effective repre-

sentation during negotiations.

            The City is not opposed to allowing the time off for negotiations or

other employee relations matters as long as it does not force the City

into an overtime situation.

 

            Longevity.  The Union considers longevity to be a small allowance that

recognizes an employee's increased worth through time.  Because these staff

positions are career positions with limited advancement opportunity within

the system and less without, longevity provides incentive and reward for

continued service and loyalty to the City.  Three Washington cities provide

longevity plans for their firefighter bargaining units.

            The City considers additional pay solely for endurance to be incon-

sistent with sound management practices in compensation and particularly

the underlying principles of the City's pay-for-performance.  Reward for

improved performance is provided for in the City's pay plan.  Longevity is

not the practice for staff officers outside rank-and-file units in comparable

cities.  It is not provided any other group of managerial employees in the

City.

 

            Educational incentive.  Agreed to by the parties during the hearing.

 

            Wages.  The Union's Salary Plan rests upon the assumptions that all

positions within the bargaining unit are of corresponding responsibility and

rank and  that they should be distinguished from the positions they super-

vise by a set minimum differential of 6% between the top Captain's pay and

that of the minimum of the staff officers' salary range.  Steps increments

are for 6% per year for three years to the "fully competent" level.

Additionally, all appointed to staff positions are to be paid within the

established salary range.

            The base figure used by the Union of $2,425 represents 6% over the

top Captain's pay excluding longevity.  This aspect of the plan reflects

a prime concern of the Union--preventing the dramatic compression of the

pay spread between staff officer (supervisor) and supervisee.

Opposition to the City's salary plan focused on the disagreement with

the relative job values assigned to the positions within the unit, the

failure to acknowledge factors relevant to staff officers but not to other

management positions (e.g., risks to health and safety, requirement of

24 hour "pager" use and unusual hours of work).  Concern was also stated

about possible devaluation of job values for pay purposes.

            The Union's salary plan proposal at the hearing was substantially

different in size, distribution and rationale from the last one proposed

in mediation.  The mediation salary plan had been more a reflection of the

City's proposal and underlying salary plan.  The Union hearing proposal

did not differentiate between staff officer position requirements.  It

was significantly higher.  The plan provided for one year with a reopener

proposed in 1982.

 

                                                SALARY PLAN

 

The positions represented by the bargaining unit all share levels of rank

and of corresponding responsibility which distinguish them from the posi-

tions they supervise.  Equity within the department salary structure requires

that the salary range for these positions should reflect this.

 

            MINIMUM OF THE STAFF SALARY RANGE WILL BE 6% ABOVE TOP CAPTAIN.

            ALL APPOINTEES TO STAFF POSITIONS WILL BE PAID WITHIN THE

            SALARY RANGE.

 

Normal development within a staff position will result in the officers'

progressing to a fully competent level in three years.

 

            THAT PROGRESS WILL BE REFLECTED IN ANNUAL SALARY INCREMENTS

            OF 6  PER YEAR WHICH IS CONSISTENT WITH THE DEPARTMENT'S

            ADVANCEMENT STRUCTURE AND IS A REASONABLE SALARY ADJUSTMENT

            FOR SATISFACTORILY DEVELOPING PERFORMANCE IN CAREER POSITIONS.

 

Entry pay upon promotion to a Staff Officer Supervisor & Unit

position will be:                                                                                              $2,425.00

 

Utilizing a City plan for supervisory approval that the

employee is performing at a fully competent level, the

following salaries are in effect:

            After one year of competent performance                                       $2,570.00

            After two years of competent performance                          $2,724.00

            After three years of competent performance                                   $2,888.00

 

            The City made many comparisons between its proposed plan (developed

by using the Willis Job Evaluation System) and that of the Union.  lts

plan was characterized as a move forward to a rational performance based

system away from the traditional "keep ahead of the employees supervised"

approach.  The City relied on the statutory criteria while the Union did

not.  The Union proposal was criticized for making no distinction between

positions and position holders for pay purposes.  If the Union's plan was

to be adopted it was alleged that it would be likely to lead to more

impasses and interest arbitration.  The consideration that was labeled

pivotal by the City was that the City justified its plan through reason

and a well organized presentation reflective of the statutory criteria.

Its proposal was identified as an extension of its good faith bargaining.

The Union's plan was characterized as a radical departure from the posi-

tion in mediation, not reflective of good faith bargaining, contrived

for interest arbitration purposes and not well prepared with reference

to the statutory criteria in R.C.W. 41.56.

            The City considered its offer substantial with an adjusted (minus

dollar value of job value upgrade) increase in average salary of 15.3%.

The City's offer was compared favorably with fire staff officers  salaries

in cities of similar size on the west coast (that average increase being

10.5%).  Favorable comparison was made to other managerial and supervisory

employees in the City and to the C.P.I. for the last five years.

 

                                                SALARY PLAN

 

1.         The City proposes that the 1981 salary plan for fire staff officers

be as set forth below.  This is  consistent with all other management

personnel in the City.

 

a.         Salary Range (monthly salaries).

                                                                                                            Range for 1981

            Classification                          Points              Min.                Mid-Point                   Max.

            Training Officer                     442                  $1874              2205                            2536

            Battalion Chief                       446                  1879                2211                            2543

            Fire Marshall                         446                  1879                2211                            2543

            Medical Service Officer        562                  1929                2269                            2609

 

Note:   The Training officer range is a newly established range.  The

above salary ranges were derived by using the Willis Job Evaluation

System.

 

b.         Staff Officer Salary Placement (monthly salaries).

                                                            Proposed

                                                            Salary             1980                ($)                    (%)

            Classification                          1981                Salary Inc.      Inc.                  Inc.

            Training Officer                     $2162              $1688              474                  28.1

            Battalion Chief                       2408                2087                321                  15.4

            Fire Marshall                         2348                2087                261                  12.5

            Medical Service Officer        2276                1958                318                  16.2

 

Note:   The increase for the Training Officer includes an 11% job audit

adjustment.

 

                                                SALARY PLAN (continued)

 

Both  the City and Union's last offers in mediation were based upon

an effective date of May 1, 1981.  (See City offer dated 4/26/81 and

Union response dated 4/27/81.)

 

Accordingly, the effective date of the City's proposed 1981 salaries

is May 1, 1981.

 

The placement of the employees in the pay range is based upon merit in

accord with the City's salary administration plan which is applicable to

all professional and managerial employees of the City.

 

2.         Administration of Salary Plan.  According to the City's offer, the

            pay for the performance plan will be administrered as follows:

 

            a.         Promotion.  When an employee is promoted to a staff officer unit

                        position, he/she shall receive a minimum 5% promotional increase

                        or the minimum of the applicable pay range, whichever is greater.

 

            b.         Advancement to Fully Competent Pay.  After three years in a posi-

                        tion in the bargaining unit, the employee shall be compensated at

                        the fully competent level of pay (mid-point); provided the employee's

                        performance is fully competent.

 

3.         The City further proposes that effective May 1, 1982, the salary ranges

in effect on April 30, 1982, be increased to the following:

 

            a.         Salary/Range (monthly salaries).

                                                                                                                        Range Effective 5/1/82

            Classification                          Points              Minimum        Mid-Point                   Maxim

            Training Officer                     442                  1986                2337                            268

            Battalion Chief                       446                  1992                2344                            269

            Fire Marshall                         446                  1992                2211                            254

            Medical Service Officer        562                  2045                2405                            276

 

b.         Salary Placement (monthly salaries).

                                                Proposed

                                                1982                                                   

                                                Base                1981                ($)                    (%)

Classification                          Salary             Inc.                  Inc.                  Inc.

Training Officer                     $2292              2162                130                  6.0      

Battalion Chief                       2552                2408                144                  6.0

Fire Marshall                         2489                2348                141                  6.0

Medical Service Officer        2413                2276                137                  6.0

 

c.         Administration of Salary Plan.  No change is proposed.

 

            Duration.  The Union proposes a two-year contract beginning May 1,

1981, with reopener on May 1, 1982, on wages, hours, overtime and clothing

policies.  The purpose of the reopener is to allow comparison with the wage

and benefits improvement of the regular firefighter unit in the City.  The

it Rignts (continued).

            While recognizing the need of the City, this arbitrator is not

prepared to go as far in this direction as the City desires--that kind of

a clause should be negotiated.  The Management Rights clause of the City

of Everett on page 3 of Employer exhibit no. 5ais a better choice under

these circumstances.

 

            Overtime and vacation.  In recognition of the significant differences

between Battalion Chiefs and other staff officers, between staff/supervisory

employees and regular, hourly employees, comparability data compiled by the

City favorable to their position and the financial condition of the City,

the package offer of the City for the two proposals on overtime and vacation

is awarded.

 

            Union management relations.  Because of the small number of staff

officers available for negotiations (5), the City  could be faced with

significant overtime costs due to negotiations.  There would be incentive

to maintain a high percentage of staff members on the negotiating team

and to prolong negotiations under the Union proposal.  Given this incentive

and the limited resources of the City it appears reasonable to encourage

participation as long as it does not involve additional expenditures of

overtime.  Thus, the City's proposal is awarded.

 

            Longevity.  Although there is considerable merit to the City's posi-

tion it does not address the points of the Union's arguments and ignores

the potential cost to the City of early retirements and increased turnover

that may result from loss of incentive for continued service.  The City

recognized the value of additional experience in firefighting situations in

its arguments concerning overtime and callbacks where Battalion Chiefs

might be more desirable than Captains because of this experience factor.

Without arguing the other merits of the City's pay plan a longevity provi-

sion would recognize the stress factors and community value associated with

the performance of the duties in this unit.  However, the Union's proposal

is too generous for the present City financial circumstances.  Accordingly,

the longevity pay plan of the City of Bremerton cited by the Union in Union

exhibit no. 14 is awarded.

 

            Wages.  The Union substantially modified its position on salary taken

during mediation prior to its interest arbitration presentation.  Such a

decision is risky even when the new plan is a sounder, fairer one substanti-

ated with new information, or better organized to justify its substance.

Here, the Union made a dramatic but not well-documented change with little

reference to the specific statutory criteria of R.C.W. 41.56 or other

rationale other than wanting to keep a respectable pay spread between staff

officers and the top paid employees in the rank-and-file unit.

            The Union's equating of the positions in the unit for pay purposes

defies reason even if it satisfies internal political needs.  There are

significant differences in the responsibilities of the positions, the

salary relevant characteristics of the incumbents and job market factors.

Realizing comparison with other cities is difficult because of the different

positions and conditions present in this unit, little effort was made by

the Union in this regard.  The Union's position can be summarized by "the

right to expect a reasonable pay increase through competence, over time"

while "maintaining a proper spread between the unit and subordinates."

            The City, on the other hand, presents a well conceived, well documented

plan that is internally defensible and compares well when statutory criteria

are addressed  However, this effort is made regarding the first year of the

plan and not duplicated or approached when justifying the second year of the

plan.

            Union asserts the necessity for staff officers to get as much as the rank-

and-file to prevent supervision problems from arising with the possibly

higher paid subordinates.  Such relative changes would also cause internal

unit morale problems.

            The City calls for a term of May 1, 1981, through December 31, 1982--

20 months.  That amount of time being considered necessary to provide a

"shake-down" of the terms of the new agreement and to promote stability

between the parties.  To initiate a reopener on May 1, 1982, or have a one-

year contract would require negotiations to begin immediately  after this

arbitration opinion and award.  Most comparable cities have two-year contracts.

 

IV.       Discussion and Award:

 

            Union membership.  Generally, the agency shop provision is too funda-

mental and sensitive to be placed in a collective bargaining agreement

other than by the direct negotiation and agreement of the parties involved.

In the context of a purely supervisory unit, this general consideration has

even greater validity.

            The Union position ignores the considerations underlying the clarifi-

cation of the rank-and-file unit in 1978.  The application of the concept

of "past practice" to this issue is also faulty because this is an interest

arbitration for the first collective bargaining agreement between the City

and a new bargaining unit even though the new unit is represented by the

same exclusive bargaining representative affiliate as the original one

was.  It is not a grievance arbitration.  The agency shop  provision is

more a Union interest as an institution need rather than an individual right

transferred from one bargaining unit to another with the employee.

            For these reasons, the City's proposal, Article 4--Union Membership,

providing for dues deduction upon employee request and cited as Employer

exhibit no. 3 is awarded.

 

            Prevailing rights.  No interest arbitration award should contribute

to instability between the parties or discourage good faith bargaining efforts

of the parties to determine wages, hours and conditions of employment.

Part of the trade-off for an employer when its employees gain collective

bargaining rights is the prospect of greater stability in union-management

relations because of the existence of a known agreement for a set period

of time.  A clause such as this would result in the potentially continuous

demand for bargaining over even minor matters of policy change.  That was

not the legislative intent behind R.C.W. 41.56.  Such a provision, if it is

to be included in a collective bargaining agreement, should be there only

as a result of the negotiations of the parties not an interest arbitrator's

award.

            The City's position of no clause is awarded.

 

            Management rights.  Generally, the terms of management rights clauses

should be determined by the parties through mutual agreement in negotiations.

While the members of this bargaining unit are considered supervisory and

"management'' by both parties, that status is somewhat clouded by the choice

of the same Union representative as that of the employees they supervise.

The legitimate exercise of this right of choice does have implications in

this context.  The concerns of the employer were made very evident during

the hearing and, it appears, during negotiations.  Because of this factor

and the implicit threat of conflict of interest, the City's need for such

a clause increases.  The City would be remiss in its duties if it did not

protect its ability to respond to possible manifestations of such conflict.

            In comparison with the other 4 Washington cities in the comparability

documents, the first year proposal fares well.  The average on the top of

the salary range is very close but the City proposed bottom of the range

is significantly lower for each position.  The first year plan compares

favorably with the average figures of both the Oregon cities (3) and

California cities (5) used for comparison.

            After providing considerable evidence why the last 5 year C.P.I.

figures are overstated by from 19-25%, the City makes a proposal for salary

increases averaging 15.3% (after adjustments for job audit upgrading)

while the average C.P.I. figure provided for the 1976-1981 period is

about 11%.  If this 11% is adjusted to accommodate the concerns of the

City's chosen economic experts, the "real" average C.P.I. for the period

ranges from 8.25% to almost 9%.

            In contrast, the City, for the second year of the proposal, uses a

6% raise figure with no documentation, no evidence and little explanation.

This 6% figure is considerably less than even the adjusted or real

C.P.I.   averages would tend to indicate.  Also, no comparison figures were

used to justify these figures.

            The substance of the exhibits and testimony and the quality of the

presentations leave little choice but to award the City's proposal for the

first year of the Agreement.  For the second year, adjusted C.P.I. figures

and the likelihood of continued double-digit or near-double-digit inflation

warrants an award of an 8% salary increase using the same plan with adjusted

figures and administrative details of Appendix A of Employer Exhibit no. 14

for both years.

 

            Duration.  The duration of the contract is recommended to be May 1,

1981, through December 31, 1982.

            Salary adjustments are to be awarded effective May 1, 1981, as agreed

to by the parties as a part of the mediation process on April 27, 1981.

Because there was no such agreement concerning any other pay matters, the

award of longevity pay shall be effective as of September 1, 1981.

 

V.        Summary of Award:

 

            1.         Union membership.    The City's proposal.

 

            2.         Prevailing rights.        The City's position of no clause.

 

            3.         Management rights.  The clause of the City of Everett provided in Employer

                        exhibit 5a.

 

            4/5.      Overtime and Vacation.  The City's package proposal improving overtime

                        and modifying vacation.

 

            6.         Union management relations.  The City's proposal.

 

            7.         Longevity.  Longevity pay is awarded of 1% after 5 years, 2% after 10

                        years, 3% after 15 years and 4% after 20 years.  Effective September 1, 1981.

 

            8.         Wages.  First year:  The City's proposed plan.

                        Second year:  8%, using the City's plan adjusted.

 

            9.         Duration.  The City's proposal of a 20 month agreement, May 1, 1981,

                        through December 31, 1982.

 

Dated this 31st day of July, 1981.

                                                                                    _____________________

For the City:  Cabot Dow                                          Val  D. Spangler, Arbitrator

 

For the Union:            Stan Snapp