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.
City
Position: The City argues that size
is the statutory
comparator criterion, not proximity or location within a local
labor
market. This position is
supported by the
arbitration
decisions in Everett police Officers
Association and the City of
Everett (Abernathy, 1981); Kent police
Officers Guild and City of
Kent
(LaCugna, 1980) and City of Seattle and IAFF
Local 27 and
Seattle Fire Chiefs Association, IAFF, Local 2898 (Beck,
1988)
proximity, under subsection (f), can be a factor but not in the
determination of comparables under the
statute.
The
City selected comparable employers on the basis of three
factors:
(1) public fire departments (cities and fire districts);
(2) similar size in terms of population
served; and (3) west coast
states,
i.e. Washington, Oregon,
California and Alaska.
The
Union's comparables are fatally defective
because they failed to
meet these statutory criteria.
To
determine similar size," the City
focused on population
served.
Using a population range of + 30%, the City determined
that
only three Washington
State public fire
departments can
reasonably be described as similar in
size: Spokane County Fire
District No.
1 (88,000); the City of Kent (85,000);
and King
County Fire District No. 39 (81,000) . In the City's view, similar
size does not mean twice as big or half as
big. Such a range
would
be so broad
as to render
the statutory criterion
meaningless.
The
City notes that a close reading of the Block decision
indicates he fashioned his total award
regarding comparability on
the basis of RCW 41.56.460, factor (f), not
on the basis of factor
(c).
For that reason,
the Award is flawed and should
not be
followed.
Since the record indicates only
three in-state fire
departments are similar in size,
and three is not an adequate
number of comparators by the Union experts'
own admission, west
coast comparators must be considered.
Employing
the same process it used to identify in-state com-
parables,
the City applied a + 30% population range factor
to
public
fire departments in Oregon, California and Alaska. No
Alaska departments existed within this
range; two Oregon depart-
ments
did and forty-eight California fire departments. To reduce
the California sample to a manageable size,
the City took the five
departments closest in size to
Bellevue. The City thereby arrived
at the following list of proposed comparable
employers under RCW
41.56.460(c):
City/District Population
Spokane
County Fire District No. 1 88,000
City
of Kent 85,000
King
County Fire District No. 39 81,000
Eugene,
Oregon 106,000
Salem,
Oregon 93,300
Orange,
California
101,600
Hayward,
California 100,600
Inglewood,
California 100,500
Santa
Rosa, California 97,600
Oceanside,
California 96,000
Discussion: The first consideration, in the Chair's view,
is
the extent to which Arbitrator Block's prior
award should be given
deference.
The record certainly
indicates the parties
could
benefit
from some degree of
consistency and predictability in
their bargaining relationship. The Chair has carefully consid-
ered, therefore,
the Union's argument
that Arbitrator Block's
approach to selecting comparables should be
followed in this case.
I have concluded, however, that at least as
to comparables under
criteria (c) , the statute and intervening
circumstances require a
different result than that reached by
Arbitrator Block.
The most
significant change has
been the 1987
statutory
amendment.
prior to that amendment, RCW 41.56.460(c) provided for
the following comparison:
Comparison of the wages, hours and
conditions of employ-
ment
of personnel involved in the proceedings with the
wages, hours, and conditions of employment
of like per-
sonnel
of like employers of similar size on the west
coast of the United States.
(Emphasis added.) That was changed in 1987 to provide for the
following comparison for firefighters:
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.
(Emphasis added.) (Effective date July 26, 1987.)
Two
changes are of significance. First, the
parties agree
that as a result of the change from
"like employers" to public
fire departments," it became
appropriate to include fire districts
as comparators. Second, the Legislature changed the
predilection
for west coast comparators; prescribing
instead an initial focus
on whether
there are comparables within
Washington state as a
whole; not just on the west coast. Only if there are not enough
in-state comparables, does the focus return
to west coast compar-
ables. This change, in the Arbitrator's view,
reflects a Legisla-
tive
intent to prefer in-state comparables over out-of-state com-
parables so long as an adequate number of
comparable Washington
employers are available.
The
City has expressed a concern that the neutral Chair may
have some predisposition on the issue of
adequate in-state compar-
ables. It derives this concern from an
off-the-record conversa-
tion
between counsel in which the Chair speculated as to how PERC
might rule on an unfair labor practice
charge filed by the Union
because of the City's refusal to disclose
which employers it con-
tended were comparable. The Chair did not state this ruling would
be the one she would have arrived at. All
the Chair did was
speculate among fellow attorneys as to how
PERC was likely to rule
(Tr. 393) .
She noted as well that how PERC ruled on the ULP was
an issue distinct from those the Panel had
to decide.
The
Chair's predisposition is simply to follow the apparent
legislative intent regarding RCW
41.56.460(c). For the reasons
already noted, and purely as a matter of
statutory construction,
the
Chair has concluded
that the 1987
amendment to RCW
41.56.460(c) (ii) reflects a
legislative predisposition to
favor
in-state comparables; but only where an
adequate number exist.
In
order to determine whether an adequate number exist, one
must first determine what in-state employers
are similar in size.
As the City correctly notes, this is the one
criterion the Legis-
lature
left unaltered. It also left that
criterion undefined;
either as to the parameters of size, i.e.
what range is similar,"
or the elements of size, i.e. how size is to
be measured.
An examination
of arbitration decisions
submitted by the
parties reveals there is no uniform view as
to how size is to be
measured.
For awhile, multi-factor analyses was in vogue, but
many parties and arbitrators now seem to be
favoring serviced
population and assessed valuation as the
principal parameters for
measuring size. While the Chair does not mean to suggest that
a
multi-factor
analyses is never
justified, she does
believe
reliance principally on serviced population
and assessed valuation
of property protected is the better
approach. If either of those
parameters fall within a range judged "
similar" then an employer
can reasonably be considered of
"similar size" within the meaning
of RCW 41.56.460(c) (ii).
Some
arbitrators use the combined total for population and
assessed value. The problem with this approach is that
assessed
value in effect controls the result because
it tends to be such a
larger number than population. The Chair, therefore, feels it is
preferable to compare the two factors
separately.
Arbitration
decisions vary greatly as to how close in size an
employer must be to be "similar. The City acknowledges that
bands ranging from + 20% to + 36% have been
found reasonable. In
actuality,
size ranges even broader than
that have been found
acceptable. Arbitrator
Krebs in the
City of Seattle
(1984)
interest arbitration, for example,
accepted a range of no less
than one-half, no more than two times. Even the City of Renton
decision cited by the City does not stand
for the proposition that
"similar size" cannot encompass
employers half or twice as big.
In
that case, Arbitrator Snow
found the City of Edmonds (pop.
25,132)
comparable to the City of Renton
(pop. estimated at
50,000).
Edmonds was obviously half the size of Renton. 71 LA
271, 274.
Clearly,
parties and arbitrators have settled upon narrower
ranges than + 50% when a sufficient number
of comparators can be
found closer in size. The decisions by Arbitrators Beck, Krebs
and Snow, however, convince this Chair that
the phrase "similar
size"
in RCW 41.56.460(c) (ii) can appropriately be interpreted to
include a range of public fire departments
within one-half to two
times the size of the department to which
comparisons are being
drawn.
City of Seattle and Seattle Police Management Association,
PERC No.
4369-1-82-98 (Beck, 1983); City
of Seattle and Seattle
Police
Management Association, PERC
No. 5059-I-84-114 (Krebs,
1984); City of Renton, 71 LA 271 (Snow,
1978). While this con-
cededly
reaches to the outermost limits of what could reasonably
be construed as " similar size within the meaning of the statute,
the Chair is not convinced it exceeds those
limits.
In
this regard, the Chair finds persuasive the reasoning of
Union expert David Knowles regarding the law
of large numbers,
i.e.
that a decrease in a
numerical amount has a much larger
impact than an increase in the same
numerical amount. (Tr. 1369)
It stands to reason that if a department 50%
the size of Bellevue
is deemed similar, then a department to
which Bellevue stands in
the same ratio should also be deemed similar
on the upper end.
Looking at the range in terms of ratios,
therefore, rather than
percentages,
the Chair finds the maximum limits of a range of
"similar size" employers would
amount to those with populations of
50,327 - 201,310.
The
following in-state comparables fall within this range:
City/District Population
Tacoma 158,9001
Spokane
Co. Fire Dist. No. 1 88,000
Kent 85,000
King
County Fire Dist. No. 39 81,000
Pierce
County Fire District No.2 65,000
Clark
Fire District No. 5 60,000
Everett 60,000
King
County Fire District No. 4 58,000
Kirkland 57,500
Snohomish
Fire District No. 1 55,000
Redmond 52,000
The parties
have used identical
population figures for
Tacoma, Spokane, Kent, KCFD #39, PCFD #2,
Clark FD #5, KCFD #4.
There are minor discrepancies between the parties
figures for
Everett, and Redmond. The figures shown above are those the Chair
finds most likely accurate. The record reflects much greater con-
fusion regarding Kirkland and Snohomish FD
#1. Kirkland is shown
on Union Exhibit 23 as having a service
population of 54,430 but
on City Exhibit 111 as being 57,500. Then on Exhibit 124 it is
shown at 70,000. The Chair has decided to assume Kirkland's popu-
lation
is that shown on City Exhibit 111, i.e. 57,500.
Although
the Union
shows Snohomish at 48,600 on
Exhibit 303, the City
assigns a population of 55,000 on Exhibit
123, which is consistent
with the figure shown on the Washington
State Council of Fire-
fighters
1986 Employer Data (Ex. 124).
The Chair, therefore,
adopts as more accurate the 55,000 figure.
_______________
1Even
if one employed a size range of + 50%, the Chair would
find Tacoma appropriately included because
its assessed valuation
falls within that range even though
population exceeds it.
The
foregoing list of comparables presents good geographical
diversity
within the state;
includes both cities
and fire
districts
(as the statute now requires) , includes another city
with a Class II rating, and includes local
labor market employers.
In short,
it has a lot more to offer as meaningful comparators
than either of the lists proposed by the parties. Arbitrator
Block's approach gave controlling
weight to Puget Sound cities
without regard for size. The Chair agrees that consideration of
the practices of employers located within
one's local labor market
is a traditional factor appropriate under
subsection (f) of the
statute.
It should not be weighted to the exclusion of subsection
(c), however.
Testimony and
exhibits in the
record clearly support
a
finding that the foregoing list of eleven
comparables is an ade-
quate
number. Arbitrators applying RCW
41.56.460 have found as
few as five comparables to be acceptable
although more are clearly
preferred.
Union expert David Knowles testified that there is no
magic number; that based on his experience,
parties and arbitra-
tors
have worked with as few as five or as many as fifteen. Given
the number of in-state comparables, the
Chair finds applicable the
statutory mandate that other west coast
employers should not be
considered.
D. Cost of Living
Although the
statute provides for
consideration of "the
average consumer prices for goods and
service, commonly known as
the cost of living," the parties
agree for different reasons -
that this consideration should not be given
any weight in the
present case. The Union argues sufficient compensation
data is
available from comparable employers for 1988
and that data should
be favored in determining the wage rates for
the contract. The
City argues its 3% increase proposed for
each year of the contract
exceeds
the increase in
the applicable Consumer
price Index.
Therefore,
no claim for increased wages can
be based on
this
factor.
Both parties' arguments have merit.
While consideration
has been given to this statutory factor, in
the present case it
was not determinative.
E. Changes in Foregoing Factors During pendency of the
proceedings
Changes
in Section (c) of the statute have already been dis-
cussed.
Cost of living changes since the old contract expired are
discussed infra.
F. Other Traditional Factors
The
Chair finds that among the factors appropriately consid-
ered
under this section of the statute are the following:
1. Ability to Pay. The City of Bellevue is an affluent
community with a strong financial base and
sufficient resources to
bring
its firefighters into parity
with other cities.
Thus,
ability to pay is not in dispute. (Ex. 36)
2. Working Conditions. The Union acknowledges that
the
City maintains outstanding facilities for
its firefighters. Fire
stations have been constructed and remodeled
with an emphasis on
liveability;
the City's fire apparatus is state-of-the-art equip-
ment,
and the City enjoys a Class II insurance rating, the highest
rating
given in this
state. Chief Dan
Sterling asserts the
Department is the best in the state and
Union witnesses agreed.
While the Union feels there is always room
for improvement, its
members
concede they enjoy
excellent working conditions
in a
progressive, well managed City.
3. Wage/Benefit
packages of Other
City Employees. The
Chair concludes, as did Arbitrator Block in
the preceding interest
arbitration, that
internal comparisons to the wage/benefit
packages granted other City employees is
appropriate, especially
when dealing with a city-wide benefit like
group insurance.
4. Local Labor Market Comparisons. Comparisons within the
local labor market are traditionally taken
into consideration as
collective
bargaining. The reasons
for this have been
aptly
described by UCLA professor Irving Bernstein
as follows:
[Local labor market] comparisons are
preeminent in wage
determination because
all parties at
interest derive
benefit from them.. To the worker they
permit a decision
on the adequacy of his income. He feels no discrimina-
tion if
he stays abreast
of other workers
in his
industry,
his locality, his
neighborhood. They are
vital to the union because they provide
guidance to its
officials on what must be insisted upon and
a yardstick
for measuring their bargaining skill. In the presence
of internal factionalism or rival unionism,
the power of
comparisons is enhanced. The employer is drawn to them
because they assure him that competitors
will not gain a
wage cost advantage and that he will be able
to recruit
in
the local labor market. Small firms
(and unions)
profit administratively by accepting a
ready-made
solution; they avoid the expenditure of time
and money
needed
for working one
out themselves. Arbitrators
benefit no less from comparisons. They have "the appeal
of precedent and ... awards
based thereon are apt to
satisfy the normal expectations of the
parties and to
appear just to the public.
Exhibit 10, pp. 7-8, Quoting Arbitration of
Wages, Publications of
the Institute of Industrial Relations (Berkeley:
University of
California Press, 1954) at 54 (emphasis
added)
As Arbitrator
Block has previously
noted, Bellevue is
centrally located in the Puget Sound area,
which is an integrated
economic area with a common labor market. 2 The Chair agrees that
comparisons to wage/benefit packages for
departments within the
same labor market is fully sanctioned by RCW
41.56.460(f). The
one qualification this Chair would add is
that such comparisons
are of limited value if there is too great a
disparity in size.
_________________
2King,
Snohomish, Pierce Counties constitute the local labor
market recognized by the U.S. Bureau of
Labor Statistics for its
Consumer Price Index for the Seattle
metropolitan areas.
When
Arbitrator Michael Beck recently refused to supplement a
list of agreed comparables in order to
include certain cities rep-
resentative
of the
local labor market, he did
so because the
proposed additions were much smaller in size
than the agreed com-
parables.
In that case, the smallest comparable was Long Beach,
California with a population of
361,334. The largest local labor
market employer proposed by the Union was
Tacoma which is less
than one-half the size of Long Beach. City of Seattle and IAFF,
Local 27, p. 7 (March 1, 1988).
In the
present case, the
list of comparables
arrived at
already includes nine (9)
departments falling within the
local
labor market. The only other department with a Class II
rating is
included, as are a number of departments
that border on Bellevue,
e.g. Redmond, Kirkland, and some with whom
the City Fire Depart-
ment
has a close working relationship, e.g.
Redmond. It also
includes many of the departments from which
Bellevue gets a lot of
its firefighter applicants and from which it
hires. (Exhibits
141-143.)
The Panel concludes,
therefore, that the previously
described list of comparables sufficiently
allows for considera-
tion
of this factor (f) comparison and
additional cities should
not be added.
IV. ISSUES
A. Article I - Definitions
Proposals: The parties have agreed to a revised
definition
of overtime
(paragraph I) as follows: "Overtime means the time
worked
in excess of
the normally scheduled
hours of duty,
excluding:
1) any time worked in place of a Union official on
leave to attend Union business." In addition to that change, the
Union proposes elimination of the definition
of "Working Condi-
tions" (paragraph J) and addition of a new section
entitled "Base
Pay."
The City opposes both changes.
(1) Definition
of Base Pay
Union
Position: The Union proposes to add
a new section to
Article I defining Base Pay as: "any and all direct monetary com-
pensation
excepting overtime compensation."
The Union's proposed
definition would treat overtime under the
parties' agreement in
the same manner as the FLSA does only
liability for overtime would
still be incurred at the lower contractual
threshold. Presently,
there is a two-tiered system which is
confusing and difficult for
employees to police. The Union's proposal represents prevailing
area practice. For that reason, it should be adopted.
City
Position: The City proposes retention
of the current
definition
of base pay,
which is not
incorporated into the
contract.
Under current practice,
base pay is
calculated as
follows:
Monthly salary x 12 divided by annual work
hours equals
base pay up to the FLSA threshold. Thereafter, the FLSA
definition of base pay is used.
Exhibit 207.
This two-tiered" system
resulted from when the FLSA
was superimposed on the parties' existing collective bargaining
agreement in 1986.
Contract
overtime applies to all hours worked in excess of
normally scheduled hours of duty (excluding
hours worked in place
of a Union official on leave; FLSA overtime
applies to those hours
in excess of 40 hours per week (for day shift personnel) or in
excess of 204 hours in a 27 calendar day
period (for 24 hour shift
personnel).
The Union's proposal would dramatically expand the
manner
in which base
pay has historically
been defined and
administered.
The
Union's proposal should be rejected because neither state
nor federal law requires adoption of the
FLSA definition, and in
any event the Union's definition is not
coextensive with that in
the FLSA.
The FLSA definition contains a number of exclusions
that would not exist under the Union's
definition. The Union's
supposed housekeeping measure, therefore, is
really a thinly dis-
guised attempt to increase compensation in
the form of overtime,
pension, and MEBT benefits.
The
current two-tiered overtime practice is long-standing and
has imposed no hardships on employees. None of the Union's com-
parables or even any of the Washington comparables utilize the
definition proposed by the Union. The current definition of base
pay, therefore, should be retained.
Discussion: It
was clear at
the hearing that
even the
Union's own
witnesses were confused
as to the
effect of the
Union's
proposals. As the City correctly notes, the Union's
proposal does not simply adopt the FLSA
definition of base pay; it
is worded in a fashion that would appear to
include pay otherwise
excluded
under the -FLSA definition, e.g.
monetary compensation
received for vacations, holidays, and sick
leave. 29 CFR Part 778
(Ex. 209).
Thus, the financial impact on the cost of overtime,
which is calculated on base pay, would be
considerable.
There
is also considerable uncertainty as to whether compar-
able jurisdictions employ a definition of
base pay as broad as
that sought by the Union. Compare Exhibit 71 with 210-211. As
for the Union's argument that the change
would make the policing
of overtime requirements easier, the record
does not indicate this
has been a problem. The same two-tiered overtime calculation is
used for the Bellevue Police, the only other
employees who qualify
for the FLSA 7(K) procedure. It is relatively easy for employees
to contact payroll for clarification (Tr.
410). The Chair, conse-
quently,
finds the record unpersuasive that any change should be
made in the definition of base pay.
(2) Definition
of working Conditions
The
Union proposal to eliminate the contractual definition of
working
conditions is an outgrowth of its
positions regarding
other sections of the contract, particularly
Article XX (Prevail-
mg Rights).
The City has represented to the Union that the con-
tinuance
of the present "working
conditions" definition is not
intended
to operate as a waiver of the
requirement to bargain
working conditions not already discussed in
the contract. (Ex.
249)3
_______________
3As to such conditions, if any waiver arises it would be
through application of Article XX
(Prevailing Rights).
The
definition in Article I would, however, insulate the City
from a requirement of further bargaining as
to matters the parties
have already addressed in the contract. An obligation to discuss
such matters would still arise from Article XXV (Communication
Procedure) but formal collective bargaining
would not be required.
The Chair finds this provision appropriate
and, therefore, no com-
piling reason to change the status quo.
B. Article VII Reduction,
Recall and Discipline
The
Union proposes to add a new section to the parties' col-
lective bargaining
agreement to require
just and reasonable
cause
to discipline bargaining unit members.
The proposed provi-
sion, as amended at the hearing on January 22, 1988, reads as
follows:
Section
3. Discipline.
No employee
shall be disciplined
or discharged
except
for just and
reasonable cause. Disciplinary
measures
shall be corrective,
appropriate and not
unreasonably
severe. All disciplinary
notices or
memoranda
shall be disregarded
for disciplinary and
promotional purposes after twenty-four (24)
months.
Exhibit 7.
(1) Requirement of Just Cause for Discipline
Union
Position: The Union argues that a
requirement of just
cause for discipline is an almost universal
standard in United
States labor contracts. It is a standard enjoyed by firefighters
in most of the Union's proposed comparable
employees, and one the
City has agreed to in collective bargaining
agreements with two
other
unions. Without incorporation of an express
just cause
standard
into the contract, adequate
protection against unjust
discipline does not exist.
The
Bellevue Civil Service Commission considers appeal only
from discipline that involves discharge,
suspension or demotion in
rank.
It does not provide a remedy for lesser disciplinary action
or for matters such as reassignment from a specialist position
carrying premium pay or demotion during an
initial probationary
period.
Moreover, because of its close ties with City administra-
tors
and personnel, bargaining unit members lack confidence in the
Commission's impartiality. The Commissioners are appointed by the
City Manager; advised by the City Attorney's office, which
also
advises the Fire Administration regarding
the initiation of disci-
pline
and then prosecutes the case before the Commissioners, and
the
City's Assistant Personnel
Director serves as
secretary-
examiner of the Commission. Persons appointed to the Commission
may be high-minded individuals but they lack
the extensive experi-
ence
of the five respected arbitrators who the parties have agreed
to utilize in their grievance procedure.
The
Department's internal disciplinary
advisory board also
affords
less protection against unjust
discipline. The Chief
controls what matters this board hears; the Department appoints
two of the three board members; and
employees accused of infrac-
tions
do not have the right to hear the evidence against them or
confront their accuser; nor
is the board's recommendation even
binding on the Chief. A requirement of just cause, therefore,
should be added to the contract.
City
Position: The City proposes that
the status quo be
maintained.
It objects to the imposition of a parallel discipli-
nary procedure that would be cumbersome and
unnecessary. Pursuant
to Chapter 41.08 RCW, the City has been
mandated by the State
Legislature
to maintain a
Civil Service Commission
for fire-
fighters.
It cannot contract away this obligation; thus, it makes
no sense to duplicate it.
The
"just cause" standard proposed
by the Union is indis-
tinguishable
from the "for cause" standard of the Civil Service
Commission.
Apart from insinuation that the Civil Service Commis-
sion
is unbiased or unfair, Union witnesses could point to no
examples
of bias, prejudgment
or arbitrary decisions
by the
Commission.
It has never appealed a decision of the Commission.
The City
contends the Union's
proposed language is
non-
definitive,
ambiguous and misleading.
It greatly broadens the
scope of departmental action that could be
challenged through the
grievance procedure; matters historically
reserved to management.
The City is adamantly opposed to such an
unwarranted incursion
into a traditionally recognized area of
management prerogative.
The proposal would foster misunderstandings;
encourage otherwise
groundless appeals; and strain
management-labor relations in a
critical area.
The
City is especially concerned that the proposal appears to
be a blatant attempt to usurp the City's
ability to make reassign-
ments
within existing job classifications. The
City views this as
a potentially explosive issue, which could
threaten the carefully
structured and bargained premium
benefit. The City is equally
opposed
to expanding appeals
by probationary employees. If,
therefore, the Panel determines that a
parallel disciplinary pro-
cedure
is justified, the Union's proposal should be modified to
place some reasonable restrictions on the
scope of appeal.
Discussion: To the extent that the Union seeks the option
to
arbitrate
matters otherwise appealable to
the Civil Service
Commission,
its proposal does not represent any intrusion into
heretofore reserved management rights
because the City concedes it
would be subject to the same standard of
review in either forum.
Ex. 254, Section 5.04.05. While the record is not convincing that
results from appeals taken to the Commission
differs significantly
from results that would otherwise have been
obtainable in arbitra-
tion,
the record is persuasive that bargaining unit confidence in
the
process would be
vastly improved. When
bargaining unit
members are being disciplined because of
alleged misconduct, this
becomes an important consideration. The testimony is also persua-
sive
that this was a significant issue to the bargaining unit; one
they might well have struck over if accorded
that right.
Granting
a right to grieve lesser disciplinary actions (oral
warnings or written reprimands) clearly would
involve intrusion
into an area in which the City has
vigorously sought to maintain
sole discretion. Such a concession is not readily obtained at
the
negotiating table without some kind of quid
pro quo. Yet, in
return
for an increased
ability to seek independent review of
management action relating to disciplinary
matters, the Union has
been unwilling to recognize areas in which
the City should be able
to manage without intrusion by third
parties. The Chair finds
this is an obvious area for compromise.
Without
some concession from the Union in the area of pre-
vailing
rights, the Chair is convinced the Union
should not be
unilaterally granted the right to arbitrate
disciplinary matters.
As a quid pro quo for such concessions,
however, the Chair finds
compelling reasons to increase the scope of
review available to
bargaining unit members. In short, the record is persuasive that
compelling reasons exist to add a
requirement of just cause for
discipline or discharge in return for
changes in the area of the
City's prevailing rights.
If a just
cause requirement is added,
however, the Chair
argues with the City that the right to
grieve discipline or dis-
charge should not be extended to
probationary employees. Proba-
tionary
employees do not now enjoy a right to appeal (Ex. 254,
Section 4.04) and until they obtain
permanent status, the record
demonstrates no compelling reasons to change
existing practice.
The Chair
also finds the City's arguments persuasive that the
right to grieve disciplinary actions should
not be so broad as to
include non-disciplinary transfers and
reassignments that do not
involve demotion in rank. Further reasons for that are discussed
in connections with Appendix A.
The
second sentence of the Union proposal requires that dis-
ciplinary
measures be corrective, appropriate and not unreasonably
severe.
The just cause standard of review already incorporates
consideration of such matters, as well as recognizing that for
some types of offenses prior corrective
action is not required.
The Union's language contains no recognition
of the latter. The
Chair, therefore, declines to adopt it.
(2) Disciplinary
Notices
Union position: The
Union's proposed last
sentence of
Section 3 seeks to limit the City's reliance
on past discipline to
justify a particular disciplinary
action. After two years the
Union argues an employee will have either
improved or more severe
action will have occurred.
City
Position: The City regards the
Union's proposal as ill-
conceived even as amended. In the City's view, the proper admini-
stration
of discipline requires retention of disciplinary notices
and memoranda even after two years. It's required as well for
evaluation,
counseling and for the defense of lawsuits against
City personnel; which defense the City is
obligated to undertake
pursuant to RCW Chap. 3.81.
Adoption
of this proposal would seriously inhibit the City's
ability to carry out progressive discipline
and fails to recognize
any distinction in disciplinary action based
on the seriousness of
the offense.
It is unnecessary because the Civil Service Commis-
sion for
cause standard implicitly
recognizes that the
more
distant in time and the less severe a past
disciplinary action the
less weight it is accorded after time. Furthermore, few compar-
able jurisdictions have such a provision. This proposal accord-
ingly
should be rejected.
Discussion: This is an issue on which the City's
arguments
are more persuasive. While there may be a point in time when
prior disciplinary notices become too stale and
irrelevant for
reliance
in subsequent discipline,
arbitrators already consider
this when applying the just cause test which
the Chair has agreed
should be added to the contract. That test recognizes, however,
that there are also factual situations when
consideration of prior
discipline
is both illustrative
of a pattern and
appropriate.
While it is true many employees may outgrow
prior disciplinary
problems, there are nevertheless cases where
problems recur on an
infrequent basis but they still recur and
not necessarily within
two years.
Another
problem with the Union proposal is that
it would
apply not just to use for further
disciplinary action but also to
promotions.
If two individuals are up for promotion, one of whom
has a record of repeated misconduct spaced
more than two years
apart and another with an unblemished
record, the Union's proposal
would preclude the candidate with the clean
record from receiving
any credit for that. The Union has not met its burden of proving
this is appropriate.
For
all of the foregoing reasons, the Chair adopts the Union
proposal that a just cause requirement be
added to the contract
with a right of appeal through the grievance
procedure in lieu of
appeal to the Civil Service Commission. Necessary revisions to
the parties' existing procedure are
discussed in connection with
Article XXIV. Since the second and third sentences of the
Union's
proposal regarding Article VII (which presently addresses Reduc-
tions and
Recall for nondisciplinary reasons)
are not being
adopted,
and adoption of
the just cause
requirement is found
appropriate in part as a quid pro quo for
changes in the prevail-
mg rights language of the contract, the
revision necessary to add
a just cause requirement should be made to
Article XX (Prevailing
Rights) not to Article VII. The Chair, therefore, finds no change
should be made to Article VII.
C. Article VIII
Vacancies and Promotions
Article
VIII in the expired contract consists of
just the
following sentence: "When a permanent vacancy occurs in the
bar-
gaining unit, it shall be filled in
accordance with the rules and
regulations set forth by the Bellevue Civil
Service Commission."
Exhibit 6.
Proposals: The
Union proposes to
amend the foregoing
sentence to indicate that the rules
applicable are those in effect
as of the effective date of the new
contract. It proposes a new
paragraph
setting forth a
Modified "Rule of
One" that would
require the City to promote the highest
scoring candidate except
where the City can demonstrate that the
second or third highest
candidate is best qualified.
The
City proposes replacement of the current language with a
Section 1 stating that "personnel
actions" (including vacancies,
promotions and disciplinary matters) shall
continue to be governed
by the Bellevue Civil Service Commission
rules. It proposes the
addition of a Section 2 stating:
Nothing contained in this Agreement shall
supercede any
matter delegated to the Bellevue Civil
Service Commis-
sion
by State Law or by Ordinance, Resolution or laws of
or pertaining to the City of Bellevue and
such Commis-
sion
shall continue to have authority over the subjects
within the scope of its jurisdictions and
authority.
(1) Incorporation
of Civil Service Commission Rules
Union
Position: The incorporation of
these rules is neces-
sary
to require the City to bargain with the Union over changes to
its
hiring and promotional
practices. The manner
of filling
vacancies and making promotions to
bargaining unit positions is a
mandatory subject of bargaining yet during
the pendency of these
proceedings the Civil Service Rules
governing such matters have
been
unilaterally changed over
objection of the
Union thus
resulting
in an unfair labor practice
complaint that is still
pending.
Adoption
of the Union's proposal would fix the
procedures
during the term of the parties' agreement
and any proposed changes
may be addressed in negotiations this
summer. It would also allow
the Union to utilize the grievance procedure
to police compliance
with the Civil Service Rules. The Union lacks confidence in the
Civil Service Commission to do this,
especially since the Commis-
sion
does not recognize the Union in its proceedings as represen-
tative
of the bargaining unit.
City
Position: The Union's proposal would
interfere with the
legitimate role of the Civil Service
Commission; depriving it of
jurisdiction and effectively freezing such
rules during the term
of the contract. While there is nothing to preclude the City
from
negotiating personnel rules with the Union,
such process merely
duplicates the efforts of the Commission and
can lead to confusion
and uncertainty.
This
state has a long and special tradition of Civil Service
for police and fire employees. While perhaps due for some amend-
ment,
this tradition has for the most part worked well; serving
the interests of citizens, employees and employers. The City,
therefore, objects to piecemeal elimination
and erosion of Civil
Service through a
bargain-for-what-looks-good-at-the-time
approach.
If major changes are to be made, the City believes this
should be done at the legislative level
where the interests of
citizens, employers and employees can be
taken into account.
There is
no merit to
the Union's unfair
labor practice
charge.
Although the Commission was
created to substantially
accomplish the purposes of RCW Chapter
41.08, it performs the same
functions and has the same purpose and
intent as boards created by
RCW Chapter 41.06. No statute requires bargaining by any Civil
Service Commission created under and for the
purposes of RCW 41.08
with any organized group of employees. Further,
the Union had
ample opportunity to propose or resist any
rules changes which
were
contemplated by the
Commission. The record,
therefore,
provides no reason to abandon the Civil
Service Commission format
at this time. The change sought is neither practical nor neces-
sary
and should be rejected.
Discussion: The parties disagree as to whether a duty to
bargain over this issue even exists. In the City's view, matters
delegated to the Civil Service Commission
are exempt from collec-
tive
bargaining under a proviso in RCW 41.56.100.
To date, how-
ever, PERC rulings hold to the contrary. IAFF, Local 1604 v.
City of Bellevue, PERC Decision No. 839
(PECB, 1980); IAFF, Local
1604
v. City of Bellevue, PERC
Decision No. 2788 (Preliminary
Ruling, 1987) . In the Chair's view, this issue should be
left for
PERC and the courts to decide. It need not be resolved by the
Chair because, even assuming a bargaining
obligation exists, the
record is not convincing that unilateral changes in applicable
Civil Service rules regarding vacancies and
promotions should be
precluded during the term of the contract.
As
the moving party on this issue, the Union bears the burden
of persuasion. In part because of changes being made
elsewhere in
the contract, the Chair finds this burden
has not been met. (See
the discussion regarding Articles VII, XX,
and XXIV.) As the City
has noted, there is a long tradition of
Civil Service jurisdiction
over certain police and fire personnel
actions. That tradition is
reflected in the fact that most all the
comparables do not have
contract language that would preclude
changes in Civil Service
Rules applicable to vacancies/promotions the subject matter of
this article. Exhibits 197, 198.
What the Union is seeking,
therefore, would appear to be a dramatic
departure from what has
been customary both in the City of Bellevue
and in other jurisdic-
tions. The Chair, therefore, is reluctant to adopt
such a change
without more compelling reasons to do so
The
record is not persuasive that the Union lacks an adequate
opportunity to provide input
into any proposed changes to the
Civil Service Commission rules and regulations. While the Commis-
sion
may not recognize the Union for the purpose of any bargaining
obligation, the record indicates that the
Union nevertheless gets
notice of proposed changes in the Civil
Service rules and has an
opportunity to provide input. (Tr. 516)
The
Union correctly notes that
an opportunity to provide
input is not equivalent to a requirement of
collective bargaining
prior to any implementation of changes. For the reasons discussed
in connection with Article XX (Prevailing Rights), however, the
Chair does not find the record persuasive
that this is an area in
which the City's latitude to make changes
should be circumscribed.
If
the Civil Service Commission makes
changes which the Union
feels
are inequitable or
unjustified, specific proposals
to
reverse or modify those changes can be
presented when the contract
is renegotiated. There are not compelling reasons in the
record,
however, to preclude the making of any
changes simply because they
hadn't been previously bargained. The Union's proposed amendment
to Article VIII is, therefore, not adopted.
Since
Article VIII is entitled "Vacancies
and Promotions,"
the Chair finds the record persuasive that
the present language
should be amended to read: "Vacancies and promotions shall be
governed
by the rules
and regulations adopted by the
Bellevue
Civil Service Commission." The City's proposed Section 1, how-
ever, would include a reference to
disciplinary actions. For the
reasons discussed in connection with Article
XXIV, that reference
is not adopted. Nor is the City's proposed Section 2.
The
City's proposal would have the effect of giving priority
to Civil Service rules and regulations, even
as to matters speci-
fically
dealt with in the collective bargaining agreement. This
reverses the existing rule that where there
is a conflict, the
collective
bargaining agreement should
prevail. Rose v.
Erickson, 106 Wn.
2d 420, 424 (1986) . The proposal would also
appear to be grounded in the view that
matters delegated to the
Civil Service Commission are exempt
from collective bargaining
under
the proviso of RCW 41.56.100. As
noted earlier in this
decision, supra p. 35, PERC precedent holds
to the contrary. The
City's proposed Section 2 is, therefore, not
adopted.
(2) Rule of Three vs. Modified Rule of One
Union
Position: Although the Chief has
usually selected the
top scoring candidate for promotion, there
have been exceptions.
When a lower scoring candidate has been
selected, the Chief has
not articulated his reasons for so doing and
morale has suffered.
Articulation of the reasons is necessary so
the employee can work
to improve his or her future prospects for
promotion.
The
Union proposal does not eliminate the "Rule of Three," it
merely requires that the superior
qualifications of a preferred
lower candidate be demonstrated. In light of the applicable one
year
probationary period, any
restriction on arbitrary
choice
still leaves management an adequate
opportunity to evaluate the
performance of the top scoring candidate.
City
Position: -The Union proposal is
neither practical nor
necessary.
It would essentially
"gut" the Rule of Three
by
placing the burden of proof on the City to
demonstrate that a
lower scoring candidate is best
qualified. The City believes this
an unreasonable burden.
In
Chief Sterling's entire tenure as Chief since 1975, he has
chosen not to select the top person on the
list on one occasion.
There is no historical justification,
therefore, for imposing the
rule sought, especially since the Rule of
Three is the norm rather
than the exception in comparable public fire
departments. The
City's West Coast and Washington comparables
indicate a 7-3 and 8-
2 majority, respectively, against use of the
Rule of One. The
Union, therefore, has failed to demonstrate
compelling reasons why
the status quo should be changed.
Discussion: The
"Rule of Three"
currently adopted in
Bellevue's Civil Service Rules allows the
Fire Chief to select any
of the three top scoring candidates on the
allocation eligibility
list for promotion (or top twenty-five
percent if that is larger).
This allows the Chief to interject his
professional judgment into
the selection and promotion of employees and
to make appointments
necessary to meet department EEO
commitments. The City is under-
standably reluctant
to lose this
discretion and the
record
indicates the vast majority of the
comparable jurisdictions follow
the Rule of Three. Only KCFD 439 and Spokane #1 do not. (City
Exhibits 255-257.)
The
record does not indicate that to date the Chief has exer-
cised
the authority he has retained in an arbitrary or capricious
manner.
The concern that it is bad for morale for members of the
bargaining unit to be passed over without
knowing why is certainly
a
legitimate one. That
can be rectified
by inclusion of a
requirement that in such cases the
Department will provide the
highest scoring candidates with an
explanation. The Chair agrees
with the City, however, that a compelling
reason to depart from
the Rule of Three has not been demonstrated.
D. Article K - Educational Incentive/Longevity
Pay
Union
Position: The Union proposes the
addition of longevity
pay to the contract as a way of
acknowledging the value of experi-
enced
employees. Such pay will help
compensate as well for the
limited or upward mobility in the fire
service. For this reason,
longevity
pay is well
established in comparable
Puget Sound
cities.
The average
net impact of the
Union's proposal would
be
2.82~; only slightly greater than the
average impact (2.53%) for
the Union's comparable employers and less
than the average (3.09%)
for Everett and Tacoma.
City
Position: The City objects to the
addition of longevity
pay on the grounds that educational
incentive pay was previously
negotiated in lieu of that. When the City conceded its Education
Incentive
Program years ago,
it tied that
concession to the
forsaking of longevity. Education Incentive has been available to
firefighters at a low of 2% to a high of 3
1/2% per year from
their first day of employment. Once officer rank is obtained, the
benefits increase to 5%. While it is true these benefits don't
accrue
automatically, an employee
has to obtain the necessary
education, that was part of the
trade-off. In return for that
effort by the employee, a benefit is received that excludes in
present value the longevity premium the
Union seeks.
The trade-off
in prior negotiations was
recognized in the
1980 interest arbitration award of
Arbitrator John Champagne when
he denied the Union's requested addition of
longevity. Arbitrator
Block
likewise found it
inappropriate to add longevity to the
wage/benefit package. The City does not believe further payments
for
longevity are beneficial,
warranted or reasonable.
With
regard to comparables, the City notes that
the majority of in-
state comparables have either longevity or
education pay but not
both.
Discussion: The record does indicate that longevity pay
is
customarily included in the contracts of
other departments. Among
the selected comparables, for example,
eight (8) out of eleven
(11)
provide longevity pay.
Only one of
those offers both
longevity and education pay, however. Prevailing practice is not
to pay both.
Members
of the bargaining unit already enjoy increased mone-
tary
benefits that automatically accrue with additional years of
employment.
Longer tenure results in greater vacation accrual and
increased MEBT for example. In comparison to most other compar-
ables,
Bellevue firefighters have more promotional ranks they can
move into as they acquire increased
seniority; more specialist
assignments;
and experienced firefighters benefit more regularly
from the work out of class premium. (Tr. 379, 706) Thus, recog-
nition
and rewards for greater experience are already contained in
the contract. In light of this, the City's argument is
persuasive
that it bargained educational incentive pay
into the contract in
lieu of longevity pay, and there is no
compelling reason now to
add the latter. Adoption of the Union's proposal would
eliminate
the consideration received by the City when
it agreed to add the
educational incentive pay. The Chair, therefore, finds no change
should be made to Article X.
E. Article XI - Overtime
Proposals: Both sides propose a number of changes in
the
current Article XI
regarding overtime. The
Union's proposals
seek:
(1) to require overtime for
training requested by the
Department outside regularly scheduled hours
of duty; (2) to pro-
vide
for compensatory time off;
and (3) to change the current
practice of assigning overtime and
incorporate that practice into
the contract. The City proposes: (1) to change the current pro-
cedure
for assigning overtime and (2) to exempt
the positions of
Medical
Services Coordinator and
Training Coordinator from
overtime.
(1) Training
Outside Regularly Scheduled Hours of Duty
Union
Position: The Union proposes to add
the following new
provisions to Article XI:
C. Any employee requested, required or assigned
by the employer or his representative to
attend schools,
conferences, seminars, meetings or training
sessions of
any kind outside of his regularly scheduled hours of
duty shall be paid at the overtime rate of
pay for the
actual
time spent. When
the employer requires
an
employee to attend fire service schools,
emergency medi-
cal training, or engage in other travel, per
diem and
lodging
shall be the responsibility
of the employer.
When possible, payment of authorized
expenses shall be
made in advance.
D. Employees who
attend E.M.T. training
or
testing
while off shift shall be paid at the overtime
rate of
pay. All employees
in paramedic training
programs shall be paid at the overtime rate
of pay for
any time over the
regularly scheduled average
weekly
hours of duty.
Exhibit 7.
The Union proposal is directed primarily at the hard-
ship caused by the City's failure to pay
overtime to firefighters
in paramedic training. It would also apply to any other training
required by the Department outside regular
scheduled shifts but
not to home study.
Paramedic trainees
undergo twelve months
of training in
Seattle, first in the classroom, then
responding to calls within
Seattle paramedics. The work they perform should be recognized as
work and compensated at overtime rates. Both comparable Puget
Sound cities with paramedic programs provide
extra compensation to
trainees.
Tacoma trainees receive their regular salary for fewer
than forty (40) hours work at a community
college. Everett fire-
fighters get their regular wage plus $350
per month. Bellevue
firefighters should also receive additional
compensation.
City
Position: During the one year period that Bellevue
firefighters
are enrolled in
the Harborview
Hospital training
program,
the City receives
no services, yet
the firefighters
receive their full regular salary with all
benefits. In addition,
the City pays all costs of training,
including a fee of approxi-
mately
$8,000 per candidate. Upon completion of
the training, the
paramedic
is guaranteed a position at
premium pay. The City
receives no services and frequently incurs
overtime due to the
reduction in manpower available to meet
minimum staffing. Because
the
City does not
control the number of hours
during which
trainees work or study, the granting of this
proposal would expose
the City to potentially excessive and
uncontrollable costs.
While the City undeniably benefits, the benefit
runs both
ways.
Firefighters have an opportunity to expand their career
opportunities and increase their monthly
compensations. Admission
into the program is highly competitive and the opportunity to
become
a paramedic is
one reason why many
firefighters seek
employment within the City. None of the comparables suggested by
either side pay overtime for paramedic
trainees. In fact, some
departments have decided to hire trained paramedics from other
jurisdictions rather than incurring a year's
lost productivity and
the expenses of training paramedics
in-house. The Union proposal,
therefore, is unjustified and should be
rejected.
Discussion: The training of Bellevue paramedics is
already
an expensive proposition. It is also a significant benefit for
which it is not unreasonable to expect some
sacrifice which ulti-
mately
is rewarded in the increased compensation that paramedics
receive.
While the testimony is persuasive that participation in
the program is both challenging and
exhausting, it is not persua-
sive
that the Union's overtime proposal is justified. Rather the
record
suggests that such
a requirement might
well price the
program Out of the Department and make the
hiring of trained para-
medics from outside more attractive. This would be to the bar-
gaining unit's ultimate detriment.
The
increased earnings opportunity as a paramedic is a bene-
fit
that distinguishes the Bellevue Department from many other
comparables where that opportunity either
does not exist or where
there are far fewer Positions
available. None of the selected
comparables pay overtime for the training
(Exhibits 219-220) . At
best, a few pay a monthly stipend, which
is probably a better
approach
because it represents
a fixed cost
that a granting
employer can budget for. In comparison, the Union's approach in
seeking
overtime would subject
the City to costs outside
its
control.
The record, therefore, is clearly not persuasive that
the Union proposal should be adopted.
The
prior contract already provides that employees who attend
school or conferences off shift at the
Chief's request will be
paid at a straight time rate for time spent
in the classroom. The
Union proposal would require overtime. The City has indicated its
primary
concern with this
is the conciseness
of the Union's
language.
As written, it could require overtime when by virtue of
attendance at a school or conference the
employee works a 40 hour
week when he or she would otherwise have
been scheduled for more
hours
than that. Even though the
employee worked considerably
less that week, overtime liability would
attach because some of
the hours fell outside of hours the employee
would normally have
worked.
(Tr. 992)
The
City is also concerned that the proposed language could
be read
to require overtime where
bargaining unit members are
attending
classes for certification
or to meet
educational
requirements for advancement. The Chair finds the City's concerns
persuasive that enough uncertainty exists as
to the effect of the
Union proposal in this regard that it should
not be adopted. The
issue should be left to the parties for
further discussion to see
if they can agree upon language that would
alleviate the City's
concerns.
The record
is fairly limited regarding the effect of
the
to engage in travel, "per diem and
lodging shall be the responsi-
bility
of the employer. U The City currently
pays per diem to
employees who travel on City business and
usually prepays. It has
indicated it intends to continue this
practice. It is not clear,
therefore, whether the
just incorporate present practice or effect
a substantive change
in that practice. The Chair is not persuaded, therefore, that
the
Union's
proposed language should
be incorporated into
the
contract, especially since the issue of
travel expenses would seem
more appropriately dealt with in some other
Article.
(2) Compensatory
Time
Union
Position: The
provision that would allow firefighters the
option of taking con-
pensatory
time off in lieu of overtime:
E. Compensatory time shall be defined as
time off
at the rate of one-and-one-half (1-1/2)
times the number
of overtime hours worked. Compensatory time shall be
used
within twelve (12)
months of the period
during
which it is earned. Compensatory time in lieu of pay-
ment for
overtime shall be
at the request
of the
employee.
Employee requests for the scheduling of com-
pensatory
leave shall not be unreasonably denied.
Exhibit 7.
The intent of this proposal is to provide an addi-
tional
opportunity for firefighters to schedule time off to deal
with the burdens Of.stress.
The
Department's 40 hour employees and other City employees,
including police officers, are permitted
this option of compensa-
tory
time. The widespread acceptance of
compensatory time is
reflected
in FLSA amendments
that allows its
use (29 U.S.C.
5207(e)(l))
as well as in the practices of comparable jurisdic-
tions. Five of the
option as do King County Fire District Nos.
4 and 39 and Pierce
County Fire District No. 2. The Union proposal would provide a
significant benefit to employees with no
significant expense to
the City and should, therefore, be adopted.
City
Position:
Historically, compensatory time
has been
allowed for non-shift fire department
personnel because it was not
as disruptive to Department operations and
is subject to manage-
ment
discretion. Due to the nature of the
fire service and the 24
hour shift schedule, the City objects to the
Union proposal as
potentially a significant expense because it
removes discretion
from the City. Allowance of compensatory time off solely at
the
firefighters' discretion creates the need
for additional manpower
to fill in, often at overtime rates. This can lead to an expen-
sive
cycle of overtime work generating additional overtime needs.
There
is no limit in the Union proposal to the amount of comp
time that can be demanded and the
requirement that the scheduling
of compensatory leave not be unreasonably
denied has the potential
of generating numerous grievance since Union
witnesses indicated
that practically any denial would be deemed
unreasonable. It is
significant, therefore, that West Coast and
by a 9-1 majority retain employer discretion
to allow compensatory
time.
The record, therefore, does not support a change in the
status quo and the Union proposal should be
rejected.
Discussion: The bargaining unit has a meritorious claim
for
sufficient time off to deal with the stress
of an emotionally and
physically exhausting job. Employee preference as