Fire and Emergency Services

Sample Articles:

FIREFIGHTERS' SOCIAL SECURITY WITHDRAWAL
STILL LEAVES EMPLOYER ON THE HOOK

KITSAP FIRE DISTRICT WAGES BOOSTED TO COMPARATOR AVERAGE

LOWERING MINIMUM QUALIFICATIONS RULED PERMISSIVE

FIREFIGHTERS' SOCIAL SECURITY WITHDRAWAL
STILL LEAVES EMPLOYER ON THE HOOK

Union Has Standing

The court of appeals, Division III, first rejected the employer's contention that the union lacked standing to bring suit on behalf of the firefighters. The union satisfied the three criteria for association standing: (1) its members have standing to sue in their own right; (2) the interests the association seeks to protect are germane to its purpose; and (3) neither the claim asserted nor the relief requested requires the participation of the individual members in the lawsuit. Although the last requirement is usually a difficult hurdle for an association, it was not an issue in this case because the employer has the necessary records. Therefore, the participation of individual firefighters would not be necessary.

Prior Cases Support Union's Claim

In ruling for the union on the merits, the court cited two appellate level cases addressing the same issue and explained that the employer's obligation to continue to pay pension benefits is based on a theory of implied contract:

A pension granted to an employee is not a gratuity, but a deferred compensation for services rendered. Washington law is clear that a pension agreement is contractual in nature, and once an employee has a vested right in a pension or retirement system, the employer cannot alter that system to the employee's detriment without corresponding benefit.

The court rejected the employer's argument that the union was required to exhaust contractual remedies under the collective bargaining agreement. The dispute was not a matter addressed by the agreement, and therefore the union was not required to follow the grievance procedure.

International Association of Firefighters, 1789 v. Spokane Airports, No. 19031-5-III (Wa. App., December 19, 2000)

At the outset of his award, the arbitrator observed:

Arbitrators are generally mindful that interest arbitration is an extension of the bargaining process. They decide the remaining issues in a manner that would approximate the result the parties themselves would likely have reached in good faith negotiations considering the statutory criteria.

For comparators, he selected nine jurisdictions. All but one fell within a population and assessed valuation band of 60-166% of the service area of the fire district. The parties stipulated to the comparator that fell outside of that range. The arbitrator considered cost of living evidence showing that that the CPI form 1992 through 1999 rose 20.5%, while the district firefighter wages rose 36.8%. He also found that turnover was not a problem with the employer.

Total Compensation Analysis Used

The union proposed wage increases of 7%, 6% and 7% for each successive year of the contract. The employer proposed wage increases of 2.7% and 3% for the first two years, and a third year 90% CPI-U increase with a floor of 2% and a ceiling of 4%.

The union and the employer suggested different methods of comparing compensation between the employer and the comparators. Addressing each of the parties' contentions, Arbitrator Krebs determined:

• The average cost per employee expended by one comparator for the physical fitness incentive should be considered.
• The holiday benefit of another comparator should be considered as an element of hours worked for the purpose of determining the hourly wage.
• The average education benefit actually paid should be considered.
• Another comparator's contribution to a Municipal Employees Benefit Trust in lieu of social security should be considered as an element of total compensation.
• The average employer payout for deferred compensation should be utilized.
• The cost of medical, dental, and vision insurance will be included in the total compensation comparison. Although the employer asserted that it paid up front points to pay down the cost of insurance, it provided no evidence regarding the amount paid. Therefore, the arbitrator was unable to factor this into its costs for insurance.
• Both total monthly compensation and hourly compensation should be considered.

After factoring in all of the above, the arbitrator found that the comparators' average total monthly compensation $5310, with an average hourly wage of $28.

After considering and weighing the evidence against the statutory considerations, the arbitrator awarded 4.25% for the year 2000, 4.5% for 2001, and 100% of the CPI-U for 2002, plus .5%, with a minimum of 3.5% and a maximum of 5.5%. According to the arbitrator:

The awarded wage increases will likely bring the total monthly compensation paid to bargaining unit members to about the average of the comparable jurisdictions by the third year of the new Agreement. At that time, the total hourly compensation will likely be a few percentage points below the average of the comparators, though much of the current gap will have been eliminated.

Lieutenant Wage Differential Unchanged

The arbitrator rejected an increase in the wage differential for lieutenants because the parties historically recognized equal wage progressions between ranks of 6%. The existing differential "maintains the logic of the parties' negotiated wage structure" and is reasonably close to the comparators' average differential.

Kitsap County Fire Protection District No. 7 and IAFF Local 2876, PERC No. 15012-1-00-333 (Arb. A. Krebs, November 10, 2000)

Employer Addressed Safety Concerns

The City of Pullman's Civil Service Commission establishes hiring standards and procedures for fire department employees. The city decided to expand the emergency medical services provided by the fire department to include the full paramedic level, or EMT-P.

In October 1998, the employer posted a job announcement for a lateral hire. The minimum qualifications included EMT-P certification and two years of paid firefighting experience. Job offers were twice turned down by successful candidates. After consulting with other public employers, the fire chief asked the Civil Service Commission to relax the minimum qualifications to increase the size of the applicant pool. The Commission approved the chief's proposal against the wishes of the union, which had unsuccessfully negotiated to add a separate job classification for paramedics.

The new minimum qualifications included two years' full-time firefighting experience, or four years' part-time, reserve or volunteer experience and certification as an EMT-B (basic level), EMT-I (intermediate) or EMT-P. With the bar lowered, the employer successfully hired two new firefighter-EMTs. The new employees were required to complete an in-house firefighter training and skills evaluation program before they were allowed to work regular shifts.

The union notified the employer that it wanted to bargain the lateral-hire issue and asked to suspend the hiring process, but the employer refused. The employer replied that this was a permissive subject of bargaining that fell under the "management rights" section of the collective bargaining agreement and refused to bargain.

Addressing the union's contention that bargaining was mandatory, Examiner Cowan explained that employers are not required to bargain changes in hiring practices unless the safety of the bargaining unit is affected. In this case, the employer's relaxed hiring standards did not affect the bargaining unit because the employer's in-house firefighter training program assured the competence of lateral-entry hires, the examiner wrote.

The union expressed concern that the revised hiring standards might generate pay inequities in the bargaining unit. It raised the possibility that lateral hires, potentially with little firefighting experience, would get paid more than experienced firefighters. The examiner disagreed, pointing out that the civil service regulations stipulated that lateral-entry hires would be paid no more than the middle salary step.

Employer Was Required to Provide Employment Applications

The union requested copies of various documents when it asked the employer to bargain. The employer provided all documents except the employment applications filled out by lateral-hire candidates. It argued that it was exempted from providing the applications by RCW 42.17 (the Public Disclosure Act), which excludes employment applications in order to protect the privacy of individuals and promote efficient government. The examiner made it clear, however, that "Chapter 41.56 RCW ... supersedes any other statute, ordinance, or regulation with which it conflicts."

The examiner rejected the employer's argument that because the issue was ruled a permissive subject of bargaining and because the applicants were not and might never be members of the bargaining unit, their applications for employment were not relevant and took the employer to task for its failure to cooperate. "In doing so, it hampered the union's ability to...adequately represent its bargaining unit."

City of Pullman, PECB 7126 (2000)