And
City of
Interest Arbitration
Arbitrator: Janet L. Gaunt
Date Issued:
Arbitrator: Gaunt; Janet L.
Case #: 06811-I-87-00162
Employer: City of
Date Issued:
IN
THE MATTER OF THE ARBITRATION
BETWEEN
CITY OF
)
and ) INTEREST
ARBITRATION
) OPINION
AND AWARD
1604, INTERNATIONAL ASSOCIATION ) JANET L. GAUNT
OF FIREFIGHTERS, AFL-CIO, CLC )
____________________________________ )
PERC Case No. 6811-I-87-162
AAA Case No. 75 390 0125 87
Appearances:
For
the
Webster,
Mrak & Blumberg
For
the City: Janet Garrow, Esq.
Arbitration Panel:
Neutral
Chair: Janet L.
Gaunt
Union
Representative: Michael Duchemin
City
Representative: Richard L. Kirkby
TABLE
OF CONTENTS
Page
I. Introduction 1
II. History
of Collective Bargaining 2
III. Applicable
Statutory Provisions 4
A. Constitutional/Statutory Authority of
Employer 6
B. Stipulations of the Parties 6
C. Comparable Employers 7
D. Cost of Living 17
E. Interim Changes 18
F. Traditional Factors 18
IV. Issues 21
A. Article I
- Definitions 21
B. Article VII
- Reduction, Recall and Discipline 25
C. Article VIII
- Vacancies and Promotions 32
D. Article X
- Educational Incentive/Longevity Pay 39
E. Article XI
- Overtime 41
F. Article XII
- Hours of Duty 52
G. Article XIII
- Shift Exchanges 59
H. Article XVI
- Holidays 65
I. Article XVII - Vacation Leave 71
J. Article XVIII
- Funeral/Emergency Leave 77
K. Article XX
- Prevailing Rights 80
L. Article XXIV
- Grievance Procedure 87
M. Appendix A 93
N. Retroactivity 120
Award 121
I. INTRODUCTION
This interest
arbitration was initiated
pursuant to RCW
41.56.450
et. seq. to resolve certain
bargaining issues which
remained at impasse following negotiations
and mediation. As its
representative on
the three (3)
member Arbitration panel, the
was selected as Neutral panel Chairperson
(hereinafter "Chair").
An
initial four (4) days of hearing was conducted on October
28-31, 1987 in Bellevue, Washington. Because of the large number
of unresolved issues at the outset of the
hearing, three addi-
tional
days became necessary. These were held
on January 20-22,
1988 at
the same location.
The
James
Webster of Webster,
Mrak
& Blumberg.
Attorney
Janet Garrow represented
the City. The hearing
was
transcribed by a court reporter.
At the
outset of the
hearing, the City objected to the
Union's
partisan arbitrator, Michael
Duchemin,
serving as a
witness
(Tr.
which states
in relevant part: "No
member of the arbitration
panel may present the case for a party to
the proceedings." After
considering
the respective arguments of the
parties, the Chair
interpreted 41.56.450
as precluding partisan
arbitrators from
serving
as an advocate
arguing one side's
case but not
from
serving as a witness (Tr.
At
the hearing, both sides had an opportunity to make opening
statements, submit documentary evidence,
examine and cross-examine
witnesses
(who testified under oath) , and
argue the issues
in
dispute.
Following the completion
of testimony, the
parties
elected
to make closing
argument in the
form of post-hearing
briefs which were timely mailed and received
by the Chair on April
6,
1988. The record in this case is
voluminous, covering over
1,500 pages of transcript and over 300
exhibits. As will be seen
from the discussion herein, numerous issues
were submitted. Con-
sequently,
the parties waived the thirty (30) day statutory time
limit for a decision.
By
agreement of the parties, the Chair drafted the prelimi-
nary text of
an Award which was then reviewed
with the Panel
Members
and the parties'
counsel, who were
invited to note
omissions or
suggest corrections.
Following that consultation,
these written findings and determination of
the issues in dispute
were finalized by the Arbitrator.
II.
HISTORY OF COLLECTIVE BARGAINING
The
parties have been engaged in collective bargaining for
the last fifteen years. There have been two prior interest arbi-
trations;
one in 1980 and one in 1982. The term
of the parties
most recent collective bargaining agreement
was January 1, 1984
through December 31, 1986. In mid-1986, they began negotiations
for a successor agreement.
During
those negotiations, the parties agreed upon a number
of changes to the 84-86 collective
bargaining agreement. The City
shortened the time for compliance with a
union shop provision from
ninety (90) to thirty (3) days; expanded
work out of class pay;
expanded
the scope of funeral
leave; added a safety committee
forum; established a communication procedure
to discuss matters of
general
concern to the
bargaining unit including
significant
changes not
included in the Agreement
that affect the
rights,
privileges and working conditions of the
unit; agreed to pick up
100% of insurance rate increase; doubled
life insurance benefits;
improved the insurance bank for on-the-job
injury; added a bonus
leave provision for good attendance; and
provided for a cash out
of accrued sick leave at 10%. Ex. 9.
Numerous issues remained
unresolved , however.
By
letter dated March 27, 1987 the Executive Director of PERC
certified
the parties impasse
on such issues
and directed
interest arbitration. The major certified issues include:
Article I -Definition
of "Base Pay"
Article VII -Reduction,
Recall, and Discipline
Article
VIII -Vacancies and
Promotions
Article
X - Education
Incentive Pay/Longevity Pay
Article
XI - Overtime
Article
XII - Hours of Duty
Article
XIII - Shift Trades
Article
XVI - Holidays
Article
XVII -
Vacation Leave
Article
XVIII - Funeral/Emergency Leave
Article
XX - Prevailing Rights
Article
XXIV -
Grievance procedure
Article
XXX - Term of Agreement
Appendix
"A" - Monthly Salaries
Appendix
"C" - Longevity
Ex.
1. Numerous sub-issues are
presented within each of these
unresolved Articles. The parties
subsequently agreed that the
term of the contract shall be two years,
i.e. January 1, 1987 -
December 31, 1988.
III.
APPLICABLE STATUTORY PROVISIONS
The
panel's authority arises out of RCW 41.56, which pre-
scribes binding arbitration for uniformed
personnel upon declara-
tion
by the public Employment Relations Commission
("PERC") that
an impasse in bargaining exists. The legislative purpose in pro-
viding for interest arbitration was to
substitute an "effective
and adequate alternative means of settling
disputes" in place of
strikes by uniformed personnel in order to
ensure dedicated and
uninterrupted public service. RCW 41.56.430.
In
making its determination, the panel
is directed to be
mindful of the foregoing purpose and to take
into consideration
the following factors.
(a) The constitutional and statutory
authority of the
employer;
(b) Stipulations of the parties;
(c) . . .
(ii) For
employees listed in RCW 41.56.030(6) (b),
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
shall
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 foregoing circumstances
during
the pendency of the proceedings; and
(f) Such other factors, not confined to the
foregoing,
which
are normally or traditionally taken into consider-
ation in the determination of wages, hours and condi-
tions of employment.
RCW 41.56.460.
The
interpretation and weighing of the various factors lie
within the sound discretion of the
Arbitration panel. In exer-
cising
that discretion, the panel concurs with the argument both
sides have made at one point or another
during the proceedings
that
the panel should endeavor to award the contract it feels
would otherwise have been negotiated by the
parties if they had
not been required to resort to interest
arbitration. In other
words, what would the Union have been able
to obtain at the table
if its right to strike had been
unfettered. In arriving at this
judgment,
the "total package" must be considered, not just the
issues submitted for interest arbitration.
We
adopt as well the principal that the
party seeking to
change an existing contract provision or
established past practice
should appropriately bear the burden of
persuasion. The Chair's
basic approach has been to first identify
current practice. A
proposed change is then evaluated in terms
of how significant a
departure
it represents from
that practice or the practice of
comparables.
The more significant the change and the less support
for it in the practice of comparables, the
more compelling the
reasons must be for making a change.
While
we recognize that parties during collective bargaining
will often seek to improve existing
procedures, we agree with the
view that whoever is proposing such a change
should appropriately
bear the burden of persuading the panel that
the existing language
or practice is unworkable or inequitable and
there is a compelling
need to change it. If
the arguments offered in support
of a
change do not clearly outweigh arguments in
favor of the status
quo then the status quo should be
maintained.
A. The Constitutional and Statutory Authority of
the Employer
The
City of Bellevue is a non-charter code city created con-
sistent
with Article XI, Section 10 of the Washington State Con-
stitution
and organized pursuant to Title 35A of the Revised Code
of Washington.
B. Stipulations of the parties
Because
of the number of issues in dispute, the parties have
stipulated to a waiver of the requirement
under RCW 41.56.450 that
the Neutral Chairperson issue
a written decision within thirty
(30) days following conclusion of the
hearing. The parties have
also stipulated that
those contract provisions agreed upon are
reflected in Exhibit 9. Further stipulations that relate to par-
ticular
proposals are discussed in the sections of this Opinion
dealing with those proposals.
C. Comparable Employers
Union
position: In order to foster
stability in the parties'
bargaining relationship, the Union argues
that the panel should
adopt the comparable cities selected by
Arbitrator Howard Block in
the parties' 1982 interest arbitration,
modified only to conform
to
intervening statutory amendments
and significant changed
circumstances.
Block
selected comparable employers from Puget Sound public
fire departments. His approach comparing to jurisdictions in
the
same locale is preferable because those jurisdictions
fall within
a common labor market, are affected by
similar economic variables,
and the comparisons are subject to more
accurate scrutiny because
local conditions are better known and comparison data is more
readily available.
The subsequent
statutory amendment of
RCW 41.56.430(c)
ratifies Block's approach. That
amendment made it clear that
comparisons with out-of-state employers was
not favored when there
are an adequate number within the Puget
Sound area. Although the
statute does now allow consideration of two
rural fire districts
outside
the Puget Sound
area, Arbitrator Block's
rationale
requires that they be disregarded.
Interest
arbitrators have held that as few as five employers
are an adequate number for comparison under
RCW 41.56.460(c) and
that a range of one-half to twice that of
the City is acceptable
for similarity of size. City of Seattle and Seattle police Man-
agement
Association, PERC No. 4369-1-82-98 (Beck, 1983); City of
Seattle and Seattle police Management
Association, PERC No. 5059-
1-84-114 (Krebs, 1984) . If one were to measure size in this case
by resident service population alone, there
are eight public fire
departments within a thirty (30) mile radius
of Bellevue that fall
within + 50% of Bellevue's size. This is more than an adequate
number of comparable employers.
The
Union believes, however, that size should be measured by
more than the single parameter of resident
service population.
The
circumstances of this
case warrant use of the
factors of
residents service population, assessed
value, number of alarms and
number of firefighters. By these parameters, the cities proposed
by the Union are sufficiently similar in
size to permit reasoned
comparisons under the statute.
The
employers found comparable by Arbitrator
Block. Redmond should be
substituted for Edmonds. It is significantly closer in size on
all
the factors mentioned,
physically borders Bellevue, shares
automatic and agreements and a common
dispatch center and jointly
participates in a hazardous materials
response program. At the
time of the Block decision, the Redmond
firefighters did not have
a collective bargaining agreement. They do now.
Therefore, sub-
stitution
of Redmond for Edmonds is appropriate.
In
light of the amendment
to RCW 41.56.460(c), which now
allows
comparison with fire
districts, four Puget
Sound fire
districts should also be added, i.e. King
County Fire Districts 14
and #39, Pierce County Fire District 12 and
Snohomish County Fire
District 11.
For all of the foregoing reasons, the Union argues
that
the following in-state
public fire departments should
be
selected
as the appropriate
comparable employees under
RCW
41.56.460(c).
City/District Population
Auburn 35,000
Bremerton 32,390
Everett 60,100
Kent 85,000
Kirkland 54,430
Redmond 50,000
Renton 35,360
Tacoma 158,900
KCFD
# 4 58,000
KCFD
# 39 81,000
PCFD
# 2 65,000
SCFD
# 1 48,600
Of these comparables, the Union argues that
heavier consideration
should be given to Tacoma and Everett
because Bellevue ranks right
between these two cities on the multi-factor
comparability analy-
sis.
They are the only two Puget Sound employers with economies
of similar size and maturity, have
discontinued the use of volun-
teer
firefighters like Bellevue and, in the case of Tacoma, is the
only other department with a Class II
rating.