IN THE MATTER OF THE ARBITRATION BETWEEN ___________________________________ ) INTERNATIONAL ASSOCIATION OF ) FIREFIGHTERS, LOCAL 1433 ) INTEREST ARBITRATION ) SUPPLEMENTAL and ) AWARD ) CITY OF PASCO ) ___________________________________) PERC Case No. 18872-1-04-0439_______________________ ARBITRATION PANEL Janet L. Gaunt, Neutral Chairperson Kelly L. Fox, IAFF Partisan Member Richard G. Bisnett, City Partisan Member _______________________ October 23, 2006 For the Union: For the City: Alex J. Skalbania, Esq. Kevin Wesley, President Emmal Skalbania & Vinnedge The Wesley Group 4241 - 2lst Ave. W., Suite 104 P.O. Box 7164 Seattle, WA 98199-1271 Kennewick, WA 99336-0616
WITNESSES 1. Lynne Jackson, Human Resources Manager, City of Pasco 2. William Weber, Firefighter, City of Pasco and Lead Negotiator for Local 1433EXHIBITS City 1. City Proposal re Article 18.8 and summary of comparables 2. 2004 Total Sick Leave Hours by Department 3. 2004 Average Sick Leave Hours per Employee by Department 4. 2005 Total Sick Leave Hours by Department 5. 2005 Average Sick Leave Hours per Employee by Department 6. 2006 Total Sick Leave Hours by Department 7. 2006 Average Sick Leave Hours per Employee by Department 8. Total Sick Leave Hours by Department (2004, 2005 & 2006) 9. Average Sick Leave Hours per Employee by Department (2004, 2005 & 2006) 10. 2004 Sick Leave Hours by Pay Period by Department 11. 2005 Sick Leave Hours by Pay Period by Department 12. 2006 Sick Leave Hours by Pay Period by Department 13. Firefighters with Reported Outside Employment Union 1. Local 1433 Mediation Package Proposal (61 15/04) 2. Local 1433 Offer re Short Term Disability through WSCFF 3. Local 1433 Proposal re Outside Employment (81 18/06) 4. Union Position Statement
I. BACKGROUND This decision supplements an earlier interest arbitration award issued last January 20,2006 ("Initial Award"), which resolved six out of seven issues that had been certified for interest arbitration by the Washington Public Employment Relations Commission (PERC). Interest arbitration for the seventh issue involving a sick leave limitation was suspended on July 6, 2005 by ruling of PERC's Executive Director. PERC Case No. 19556-U-05-4961. On June 2,2006, a PERC Examiner ruled that the City's sick leave proposal involved a mandatory subject of bargaining and could be submitted to interest arbitration. PECB Decision 9337. The Union elected not to appeal that ruling and instead agreed to proceed to hearing before this Arbitration Panel. On September 6, 2006, an arbitration hearing was conducted in Pasco, Washington. The Union was represented by Alex Skalbania of Emrnal, Skalbania & Vinnedge. The City was represented by Kevin Wesley of The Wesley Group. Neither party requested a court reporter. During the hearing, each party 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. The parties elected to make closing arguments in the form of posthearing briefs, the last of which was received on September 25, 2006. This; decision now completes the interest arbitration proceedings regarding the parties' 2004-2006 Collective Bargaining Agreement.II. THE COMPARABLE EMPLOYERS Pursuant to RCW 4 1.56.465(c)( ii),t he prior Award found the following nine jurisdictions were appropriate comparators: (1) Bremerton, (2) Kennewick, (3) Longview, (4) Mount Vernon, (5) Pullman, (6) Richland, (7) Spokane Fire District No. 9, (8) Walla Walla, and (9) Wenatchee.III. SICK LEAVE UTILIZATION (PROPOSED ARTICLE 18.8) Local 1433's bargaining unit members are currently able to utilize accrued sick leave regardless of the circumstances that result in illness or injury. Members of the bargaining unit work a twenty-four (24) hour shift and then have forty-eight (48) hours off. The City's firefighters work an average of fifty (50) hours every seven days compared to most other City employees, who work forty (40) hours in the same work period. Because they have more full days off in the course of a normal workweek, the frequency of outside employment is much higher in the Fire Department. Over 31% of the City's firefighters have reported having outside employment. Ex. C- 13.(fn:1) ___________________ fn:1 Exhibits introduced at the supplemental arbitration hearing are referenced by number as Union ("Ex. U - " )or City ("Ex. C - " ) . Exhibits introduced at the earlier arbitration hearing are designated with an asterisk. Since October 1, 2003, firefighters have been required to give the City prior notice before commencing outside employment. Additional restrictions are set forth in Article 9 of the predecessor labor contract. Ex. U-14.* There is no restriction on using sick leave to cover absences due to injury suffered while working for another employer. The City of Pasco has three other represented bargaining u:nits. A unit of commissioned police officers is represented by the Pasco Police Officers Association (PPOA). A unit of non-uniformed personnel in the Pasco Police Department is also represented by the PPOA. A unit of employees in the Public Works Department and Parks and Recreation Department is represented by the International Union of Operating Engineers Local 280 (IUOE). All of these bargaining unit have accepted a prohibition against using sick leave to cover absences due to injury suffered while working for another employer. City Proposal: The City proposes the addition of contract language that would be numbered Article 18.8. The text would read as follows: Use of Sick Leave for On the Job Injury from Outside Employer. If an employee is injured atlbecause oflfrom employment other than the City of Pasco, there shall be no use of accrued sick Leave or access to the sick leave buy back program for this injury. Nor will there be accrual of sick leave, vacation or holidays while off' injured because of another employer. Benefits and job protections as afforded by FMLA will be extended an additional twelve weeks beyond that which is given by FMLA (total of 24 weeks). Ex. C-1. The City's proposed restriction would apply to any activity for which a firefighter was paid, no matter how small the task or payment. The City contends it has a legitimate business interest in controlling access to City granted benefits and a fiduciary responsibility to its taxpayers. In the City's view, it is only reasonable to provide sick leave for injuries arising from City employment or personal circumstances that are unrelated to outside employment. City firefighters engage in outside employment to a much ~reatere xtent than do other City employees. Data collected for 2004, 2005, and YTD 2006 indicates that the sick leave usage of firefighters is also higher than in other City departments. When a firefighter is unable to report to work, there is a greater likelihood that the City will incur overtime costs to ensure minimum manning requirements are met. The City's proposal would achieve internal parity with all other City employees. The firefighter bargaining unit is the only one without a restriction on the use of sick leave for injury caused by outside employment. As an inducement for accepting such a restriction, the City has offered a twelve week increase in the FMLA benefits/job protection that a firefighter would receive. That is a benefit not received by the other City bargaining units. The City's proposed restriction is a modest one that is supported by the practice in a number of comparator jurisdictions. Sick leave would remain available to bargaining unit members even if they injure themselves as the result of engaging in high risk recreational activities. The City incurred significant cost increases as a result of the initial Arbitration Award allowing a fourth firefighter off per shift, and was prejudiced in its case presentation by the Union's untimely and erroneous filing of an Unfair Labor Practice charge regarding the City's sick leave proposal. The Union's conduct prevented the sick leave issue from being resolved in the initial arbitration. The Union should not be rewarded for this conduct. Instead, the City's proposal sick leave restriction should be adopted Union Proposal: Local 1433 proposes continuation of text appearing in the prior labor contract. Article 9 of the 2002-2003 CBA addresses "Outside Employment" and reads as follows: Employees holding outside jobs, including self-employment, shall not: (1) advertise on City property; (2) involve the use of City equipment or supplies; (3) infringe on their ability to do their job; (4) result in a conflict of interest. In cases where the City feels a problem exists, then the City must notify the employee and the Union of the perceived conflict in writing within 48 hours of notification. The Local may then file a formal grievance as allowed in Article 22 if this issue could not be resolved prior to the time line allowed in Article 22. The affected employee would be able to continue their outside employment during pendency of the grievance procedure. The parties agree that an expeditious resolution of the grievance is desirable for all parties involved. Therefore, the Local may initiate this type of grievance at the Step 2 level of Article 22. Beginning on October 1,2003, employees will notify the City at least 48 hours before commencing new outside employment. Notification will be by means of a form agreed to by the parties and provided by the City. Ex. U-3. The Union contends the City's proposal represents a significant change in the "no fault" nature of the current sick leave benefit. It unfairly singles out one particular off duty activity while ignoring other activities that are arguably more undesirable and/or high risk in nature. Bargaining unit members have a justifiable concern about a proposal that infringes upon their privacy rights during off duty time. The City has provided no evidence of an actual adverse impact on the City's finances. Sick leave usage by Local 1433 bargaining unit rnembers does sometimes cause the City to incur overtime costs, but there is no evidence that those costs have been attributable to injuries arising from outside employment instead of work for the City. The City's proposal is not supported by the practice of comparable jurisdictions. Seven out of nine of the selected comparators do riot impose the sort of restrictions upon sick leave usage that the City seeks. The City's internal parity argument merits little or no weight because the work schedules of other City employees are so different and result in so little outside employment. The City either unilaterally imposed its limitation or did so through bargaining with labor organizations that did not have much incentive to resist the sick leave restriction. Local 1433 has already agreed to contract provisions that provide the City with reasonable protections against negative consequences from off duty employment. The current contract language is sufficient to protect the City's legitimate concerns, especially since there are occasions when outside employment actually benefits the City financially. The City's proposal should be rejected, and current contract language should be maintained. DISCUSSION AND FINDINGS: As noted in the initial Awa:rd issued last January 2006, the approach of this Arbitrator is to evaluate a proposal in terms of how significant a departure it represents from the status quo and the extent to which it is supported by the practice of comparable jurisdictions. The more significant the change and the less support for it in the practice of comparables, the more compelling the reasons must be for adopting that proposa:l. As the party seeking to change current contract language, the burden of persuasion rests in this case on the City. The City's proposal represents a significant change in a benefit that firefighters have been accruing each year. Until now, accrued sick leave has provided income replacement when City firefighters have become ill or injured no matter how that occurred. That broad availability of sick leave is consistent with the prevailing practice of those jurisdictions found to be appropriate comparables for purposes of the analysis that RCW 41.56.465 requires. Of the nine selected comparables, only two (Kennewick and Pullman) have been shown to have the type of sick leave restriction for outside employment that the City seeks in this case. Testimony of Lynne Jackson; Exs. U-38*, U-65.* The vast majority do not.(fn:2) Given the significance of the change the City seeks, and its inconsistency with the practice of the comparable jurisdictions, the City needed to provide a compelling reason to adopt its proposed change. The evidence presented fell far short of satisfying that burden. __________________ fn:2 The City of Wenatchee has restrictive language in an employee handbook, but the parties disagree over whether that restriction would apply to the Wenatchee firefighters, whose collective bargaining agreement is silent regarding any restriction. Even if one credits the City's claim that the restriction is applicable to Wenatchee firefighters, only one-third of the comparator jurisdictions preclude the use of sick leave for injuries incurred during outside employment. The City contends the frequency with which its firefighters engage in outside employment creates a financial liability the City reasonably seeks to reduce. It is undisputed that members of the Local's bargaining unit do engage in outside employment to a greater extent than generally occurs with th~e City's other personnel. That reality creates the possibility, but not necessarily the actuality, that injuries incurred during the course of outside employment could cause City firefighters to miss one or more of their scheduled shifts. The City's proposal would not change that possibility; it would simply cause the injured firefighter to incur a wage reduction. There is no evidence this potential penalty would cause members of the bargaining unit to forego outside employment. It would only serve to offset somewhat any cost the City incurs for a firefighter's replacement. The City introduced numerous exhibits showing that for the years 2004, 2005 and much of 2006, City firefighters as a group used more leave than Pasco employees in other departments. Exs. C-2 through C-12. Because firefighters have greater outside employment and greater sick leave usage, the City believes it can be presumed that increased sick leave usage is necessarily resulting from the occurrence of outside employment. That assumption is not automatically justified. With the exception of firefighter William Weber, who testified at the hearing, there is no evidence of the nature of outside jobs that City firefighters are working. Some outside employment may be very incidental in nature and/or pose less risk of injury than if a firefighter were spending the time instead on physically dangerous recreational activities, which sick leave would still cover. The testimony of Weber, the Union's lead negotiator, evidenced that very fact. Weber missed three months of work after suffering an injury while riding liis motorcycle recreationally. The hours that Weber works as a paramedic instructor at a local community college would seem to pose less risk of injury than if Weber were spending those hours instead back on his motorcycle. This example demonstrates why one cannot assume that the time firefighters are spending on second jobs is necessarily increasing the risk they will become injured and miss their scheduled shifts for the City. What is striking in this case is the lack of evidence that the City has actually incurred any increased cost from firefighter injuries incurred during outside employment. During her testimony, Human Resources Manager Lynne Jackson acknowledged that she knew of no instance when an injury incurred during outside employment had caused a City firefighter to use accrued sick leave. The City's proposal only covers "injuries" from employment elsewhere. The City did not establish that evidence of the impact of such injuries on the City of Pasco could never be obtained. Ms. Jackson testified that the City receives reports from the Washington Department of Labor & Industries (L&I) that would evidence if a Pasco firefighter suffered a reportable injury while working for another employer. There would thus be situations where the City could accumulate cause and effect evidence to support its proposal. To date, the financial burden potentially incurred by the City is entirely speculative and unsupported by any known examples. The only known reality is the fact that the City has financially benefitted, in at least one instance and perhaps more, from the fact that a firefighter had outside employment. The City has an Administrative Order No. 37 which requires City City of Pasco / IAFF Local 1433 (Supplemental Arbitration Award) - p. 8 employees to turn over all time loss payments they receive from the State of Washington when they miss work because of on-the-job injuries wlnile working for the City. Most members of the Union's bargaining unit are LEOFF I1 employees, who have a disability benefit provided by statute when on-the-job injuries occur. Firefighters receive a time loss benefit from the L&I, which varies by firefighter but amounts to roughly 60% of a firefighter's normal income. The City pays 20% of the remaining lost income, and the firefighter can use accrued leave to cover the remaining 20%. When calculating the amount of L&I payment, the State of Washington utilizes an employee's income from all jobs where the same social security number is used, regardless of which job an employee was performing when he/she was injured. The L&I check a Pasco firefighter turns over to the City can thus be larger sometimes because of that individual's outside employment. A larger check from the State reduces the amount of money the City then pays its injured firefighter. Ms. Jackson acknowledged that during the period of 2004-2006, the fact that an employee had an outside job benefitted the City in this fashion when an injury occurred while performing work for the City. A negotiated sick leave benefit should not be diminished on the basis of sheer speculation that the City might someday incur some financial detriment; not when the only known reality to date has been a reduction in costs the City would have otherwise incurred. I have considered the City's argument that its proposal should be adopted to achieve internal parity. Settlements reached by an employer with its other bargaining units is a factor commonly considered under RCW 4 1.56.465(f). As noted in the Initial Award, however, considerations of internal parity carry more weight during periods of economic hardship when all of a city's workforce is being asked to make financial sacrifices. In a situation like the present one, where the City does not claim an inability to pay, internal parity becomes a less compelling justification to diminish an existing benefit, especially when the change sought would have a more detrimental impact on the firefighters bargaining unit. All unrepresented City employees are prohibited from using sick leave to cover absences caused by injuries resulting from outside employment. So are employees in the City's other collective bargaining units. These other employees work eight or ten hour shifts, four or five days each week. Firefighters work more hours per shift but fewer shifts per week, which leaves them better able to work second jobs. Because the incidence of outside employment is very low in other departments, the City's sick leave restriction has little impact on those employee.(fn:3) _____________________ fn:3 The City did not establish that there was a higher incidence of outside employment by other City employees until it precluded the use of sick leave for injuries suffered while working elsewhere. Different bargaining units make different concessions depending upon concerns unique to each unit and the inducement an employer might offer to accept a particular concession. When few members of a bargaining units will be detrimentally impacted, the unit will more readily accept a sick leave restriction for outside employment, especially if an inducement is offered that the bargaining unit perceives as outweighing any negative impact. The City believes its offer to extend the duration of FMLA benefits should be enough of an inducement in this case, but the firefighter bargaining unit has disagreed. It is hard to find a compelling reason to force the City's proposal upon that bargaining unit when less restrictive measures have not yet been tried. Many Local 1433 members pay the premium for a disability insurance plan offered by the Washington State Council of Firefighters (WSCFF). After an absence of thirty (30) days duration, that insurance provides a benefit that Pasco firefighters could use to buy back sick leave previously used for absences caused by outside employment. During the parties' negotiations, the Union expressed a willingness to adopt contract language that would require bargaining unit members, who receive the WSCFF disability benefit, to use it to buy back sick leave used after injury on a second job. The parties actually reached tenta.tive agreement at one point as part of a mediated package proposal. That package proposal was ultimately rejected by the bargaining unit, so the tentative agreernent regarding WSCFF disability benefits did not become final. It is an approach, however, that the City was free to adopt as a proposal for this interest arbitration. Instead, the City chose a more punitive restriction, one that I find insufficient justification to adopt. A more reasonable approach at this point is continuation of the current contract language in Article 9 regarding outside employment. In arriving at this ruling, I have been mindful of the delay caused by the Union's belated filing of an unfair labor practice charge that prevented resolution of the sick leave issue during the initial interest arbitration process. The City contends it was prejudiced in its case presentation by having a separate hearing on just one issue. I have therefore considered whether the outcome of this issue would have been any different if it had been resolved at the same time as all the other certified issues. Because the evidence is so weak as to any actual detrimental impact from the outside employment of City firefighters, I am quite convinced that the outcome would have been the same last January as it is now.IV. SUPPLEMENTAL INTEREST ARBITRATION AWARD With due regard for the applicable statutory factors described in RCW 4 1.56.465, the Arbitrator makes the following award: Article 9 (Outside Employment): retain current contract language pursuant to the Union's proposal. Article 18.8 (Sick Leave Utilization): The City's proposed restriction is rejected. Dated this 23rd day of October, 2006 by ________________________________ Janet L. Gaunt, Neutral Chairperson