Title: City of Eugene and Eugene Firefighters
Association, Local 851, International Association of Fire Fighters
IN ARBITRATION PROCEEDINGS
PURSUANT TO AGREEMENT BETWEEN THE PARTIES
Arbitration arises pursuant to Agreement between Eugene Firefighters
Association, Local 851, International Association of Fire Fighters
("Union"), and City of Eugene ("City"), under which LUELLA
E. NELSON was selected to serve as Arbitrator and under which her Award shall
be final and binding upon the parties.
was held on June 5 and 6, 1996, in Eugene, Oregon.
The parties had the opportunity to examine and cross-examine witnesses,
introduce relevant exhibits, and argue the issues in dispute.
Both parties filed post-hearing briefs on or about July 1, 1996.
behalf of the Union:
Kathryn T. Whalen, Esquire, Bennett, Hartman, Reynolds & Wiser, 851
SW Sixth Avenue, Suite 1600, Portland, OR
behalf of the City:
Sharon A. Rudnick, Esquire, Harrang Long Gary Rudnick P.C., 101 E
Broadway, Suite 400, Eugene, OR 97401
Is the City violating the Labor Agreement by the way in which it is
interpreting and applying constant staffing overtime; and, if so, what is the
RELEVANT SECTIONS OF AGREEMENT
MEMORANDUM OF UNDERSTANDING
The City will implement constant staffing on a limited basis over a
period of time. Constant staffing
will be implemented in two phases as vacancies occur, in blocks of three
vacancies. People will only be
allowed to sign up for call shifts on the first of their two days off. Between now and the implementation of constant staffing, a
study group will be formed to develop the policies and procedures for constant
staffing. There will be a total
of seven (7) vacation/holiday slots per shift upon implementation.
The number of positions eliminated and hours available for constant
staffing can only be increased by mutual agreement of the parties and cannot
be imposed by an arbitrator.
The City and the Union will form a joint study group to evaluate constant staffing during the life of this agreement.
July 23, 1987, MEMO OF UNDERSTANDING
... it is our intent to upgrade Station Three to a three-person crew
when the new Riverside Research Park becomes a reality.
I have informed the City and Executive Managers of this decision and
they do not disagree with it.
RELEVANT PROVISIONS OF THE
CONSTANT STAFFING ADMINISTRATIVE RULES
The minimum number of line personnel and chief officers needed to provide
protection for the City of Eugene and its contract districts.
Each position to be filled by a qualified member.
The number and types of positions to be determined by the Deputy Chief
or the Chief's designee.
"Constant Staffing Shifts Available" (CSSA):
Shifts which need to be covered by members hired using "constant
staffing" procedures. These
can be holidays, other scheduled time off, or additions staffing for special
Are the number of extra people hired to cover time off for vacation
days, holidays, comp time and sick time.
They are not specific individuals.
"7th Slot" Occurs
when all seven vacation and holiday slots are full.
Constant Staffing Selection Procedure
A-Shift will work B-Shift's 7th Slot, B-Shift will work C-Shift's 7th
Slot, and C-Shift will work A-Shift's 7th Slot.
Selection of which day you will work:
Select only days which follow your shift, and which has all seven slots
Find one person out of the seven you are "Qualified" to work
for using the following criteria:
EMT 2(I) level or higher, if at a medic station.
Other Constant Staffing Selection Procedures
After the initial selection of constant staffing shifts to work have
been made, other shifts will come available throughout the year as the seventh
slot fills up.
Procedure: When all
seven shifts fill up.
It must be at least seven days or more before the date.
The person taking the seventh shift on vacation/holiday should type on
the *US GR FECSMSG (constant staffing message screen) that the shift is
available to work.
Call the on-duty Constant Staffing Representative (CSR) to inform them
the shift is available to work.
The on-duty Constant Staffing Representative (CSR) will contact the
next person up for work.
Miscellaneous Rules Regarding Holidays
Drops: If the
vacation/holiday shift you plan to take off has all seven slots filled and you
decide not to take that shift off, give as much notice as possible, but not
less than 58 shift hours before the date of concern.
Drops will be allowed up to 2200 hours.
You are responsible to notify:
Your District Chief
The member signed up to work the seventh slot, and
The constant Staffing Coordinator (CSC) or representative.
as much notice as possible allows for another member to pick up that day.
If another member does select the open day, the member who was signed
up to work the constant staffing shift (CSS) will be able to do so.
However, they must be qualified to work for one of the seven people
off, with the exception from normal constant staffing procedure of not having
to be from the same station.
Involuntary Cancellation: Anytime
there is an involuntary cancellation due to a member dropping a
vacation/holiday slot when all seven slots are full, the member bumped out of
the constant staffing shift (CSS) will have one less constant staffing shift
worked (CSSW) notation next to his/her name.
They will have to wait until another day comes available that they want
case involves language first added as a Memorandum of Understanding attached
to the 1993-95 Agreement, and modified slightly in 1994.
Briefly, the City agreed to reduce its staffing and increase the number
of fire fighters
allowed to be on vacation on any particular day, and set up a system of
the 1993-95 Agreement, most overtime went to certain classifications, such as
paramedics and personnel qualified to work with hazardous materials or serve
in an acting capacity in higher ranks. The
Union sought to increase overtime, allow overtime to be scheduled in advance,
and spread overtime more equally. It
also sought to permit fire fighters to work overtime in their usual
classification and fire station for the most part.
The cost of the additional overtime was to be partially funded by
reducing payroll costs outside the peak vacation season.
fighters work one of three rotating shifts of 24 hours on duty, followed by 48
hours off duty. Except for
probationary employees, who rotate shifts every four months, the City
ordinarily does not move employees between shifts.
Shift strengths therefore vary over time as personnel come and go.
City employs extra fire fighters, known as "floaters" or
"overstaff," to cover absences at straight time pay.
If the number of absences exceeds the number of available floaters,
other fire fighters work overtime to cover the absences.
In this regard, the City differs from some neighboring jurisdictions,
where all relief is provided using overtime shifts.
fire fighters must receive 12 weeks of training before they can be assigned to
fire stations. The City trains
new fire fighters in groups to reduce training costs.
It therefore hires in groups to fill both current and anticipated
vacancies. To the extent that new
fire fighters temporarily exceed the number of current vacancies, they will be
referred to as "overhires." According
to Personnel Section Manager Helen Towle, the City is more likely to be
understaffed than overstaffed at any given time.
the time of the 1993 negotiations, the City staffed most fire stations with at
least three fire fighters. Two (Stations 3 and 7) were usually staffed with only two
fire fighters. When available, a
floater was assigned as the third fire fighter at Station 3. A third fire fighter was also assigned to Station 3 during
periods of high fire danger. Station
3 plays a part in the current dispute.
THE STATION 3 ISSUE
3 is near a development known as the Riverside Research Park.
Before 1993 negotiations, the Union filed a grievance arguing Station
3 should be fully staffed under the 1987 MOU.
According to Towle, the parties disagreed on whether the 1987 MOU
applied when Riverside Research Park was fully built and open, or at an
earlier point. The parties agreed to move this issue to the bargaining
bargaining, the City proposed to review all side letters and either eliminate
them or incorporate them into the Agreement.
The Union proposed immediate three-person staffing at Station 3 and
phased-in three-person staffing at Station 7.
The City proposed language expressing a commitment to finding a
solution to the staffing issue at Station 3.
On March 18, 1993, the City proposed a task team to explore the
options and leave the 1987 MOU unchanged.
The parties agreed on that proposal on April 6.
The City staffed Station 3 at three as of July 1, 1995, after approval
of the necessary funding.
1993 negotiations, the Union raised the idea of increasing and equalizing
overtime opportunities; however, it had no written proposal at first.
After discussing the concept, the Union made a written proposal on
March 30, 1993. The Union
proposed to reduce staff by three floaters per shift, for a total staff
reduction of nine. The Agreement
permitted five fire fighters to be on vacation on any given shift during the
winter, and six during the summer. The
Union proposed to increase that number to ten year-round.
The proposal did not contain specific language; instead, it described
the concept as follows:
program we call "constant staffing" is based on what other
departments call "call shift" or "constant manning."
Constant Staffing differs from the other programs in that the main
emphasis is not to provide more overtime.
The purpose of Constant Staffing is to provide a constant level of
staffing of ever more specialized personnel at a level which doesn't require
"carrying" extra people during the winter months.
Staffing also provides a positive morale component, in that it allows for much
needed flexibility in the selection of days off.
It also reduces the need to work out of rank and out of station.
proposal described the implementation process as follows:
are proposing that the three extra positions per shift hired to cover holidays
be eliminated through attrition. Line
personnel will be given an equal opportunity to work, "like for
like," for members who are off on holiday or other pre-scheduled absence.
proposal described the anticipated benefits, gave a breakdown of costs, and
provided a detailed administrative process.
It proposed using a unit employee to coordinate constant staffing.
presenting the Union's written proposal on March 30, 1993, Engineer Bob Lyon
commented the proposal would reduce the number of floaters from 8 to 5.
The City's notes of that session include a note that the City currently
pos for 36 reg. staffing/shift (8 slots/shift to cover vac, hol, comp)."
Towle testified the Union president at the time of negotiations, Roger
Knox, explained that Lyon was assuming eight slots to cover vacation and
holidays and one slot to cover compensatory ("comp") time and light
duty. When looked at from that perspective, Towle understood the
Union's figure. She asked Lyon to
sit down with the City's financial person and go over the cost calculations.
recalled City negotiators saying they disagreed with the Union's numbers.
Towle testified Knox later acknowledged the figure of eight floaters
was incorrect, and agreed the actual numbers were 36 minimum staff and 9
overstaff. Her recollection was
that the parties thereafter spoke in terms of holding a certain number of
authorized positions vacant rather than the number of overstaff.
Chief Jim Schneider testified he recalled telling the Union negotiators their
figures were wrong. He told the
Union the City had six straight time people for vacation/holiday relief, one
for comp time relief, and two for sick leave relief.
Thereafter, his recollection was that the discussion was in terms
of reducing authorized positions. He
also recalled saying the City could not agree to hire constant staffing
overtime if personnel were available at straight time.
response to the City's concern over future increases in the program, the Union
agreed to language limiting any increases.
Because of concerns over coverage for sick leave, the Union also agreed
to reduce the proposed number of vacation slots to 7.
In late April 1993, the Union indicated it would drop a proposal for
specialty pay, but tied that to agreement on the constant staffing proposal. Specialty pay does not appear in the Agreement.
May 7, 1993, both parties proposed specific language.
The Union's proposal read as follows:
City will implement C/S on a limited basis over a period of time, implemented
in two phases as vacancies occur, with 7 slots for vacations/holidays.
The shift schedule will remain the same.
Between now and the implementation of C/S, a study group will be formed
to develop the policies and procedures for C/S.
City's proposal read as follows:
City will implement constant staffing on a limited basis over a period of
time. We will implement the
program in two phases as vacancies occur, during each phase as we get a block
of three vacancies. People will
only be allowed to sign up for call shifts on the first of their two days off.
Between now and the implementation of constant staffing, a study group
will be formed to develop the policies and procedures for constant staffing
and the new shift schedule. There
will be a total of 7 vacation/holiday slots per shift.
parties agreed to the City's language, and developed final language after
THE IMPACT OF STATION 3
testified he understood the constant staffing figure included a third fire
fighter at Station 3. Randy Groves, who served on the 1993 Union negotiating team,
testified he also understood the figure would include a third fire fighter at
Station 3. However, he recalled
no firm commitment to assigning a third fire fighter there. He had no recollection of anyone from the City saying the pool
would remain at 45 even after fully staffing Station 3.
testified the subject of staffing at Station 3 was not raised in these
discussions. Schneider testified
the only discussion of Station 3 in the context of constant staffing came from
him. He recalled commenting that,
if funding was authorized for three-person crews at Station 3, the City might
be able to get to the necessary reduction of six more quickly than through
"7th SLOT" AND "COMP TIME SLOT"
testified the Union initially proposed to hire one constant staffing slot when
the sixth vacation slot had been filled.
In later discussions, the parties agreed to hire one constant staffing
slot when the seventh vacation slot was filled, and a second one for the
"comp time" slot (operating on the assumption that at least one
person would be off on comp time during peak vacation season).
Groves testified he understood there would be one constant staffing
slot if seven people signed up for vacation.
testified the parties agreed that, if seven vacation slots were filled, two
people could sign up for constant staffing overtime.
However, the parties agreed the City was not obligated to hire overtime
it did not need. Therefore, any
constant staffing hiring was conditioned on having seven vacation slots
filled, one additional person off, and no straight time employees available to
fill the vacancies.
testified the parties agreed that seven vacation slots would have to be filled
before employees could sign up for constant staffing.
However, signing up did not guarantee that constant staffing would be
hired. For constant staffing to
be hired, an additional employee would have to be gone, e.g., for comp time or
sick leave. If all seven vacation
slots were filled and one person was gone for another reason, two constant
staffing shifts would be available for sign-up.
However, if straight time people were available to cover, no constant
staffing overtime would be hired.
OF CONSTANT STAFFING
did not participate in contract negotiations after presenting the initial
written constant staffing proposal. He
later became the Constant Staffing Coordinator and helped develop the constant
staffing Administrative Rules. He
testified he and Chief Schneider calculated those rules based on six
sent unit employees a copy of the constant staffing Administrative Rules on
February 10, 1994. An introductory page informed employees of the increase
in available vacation slots. It
noted that, "For each day that all seven slots are taken, there will be
one constant staffing shift available."
It also said the parties would "fine tune the system after we see
how the first six months work out."
April 25, 1994, Chief Schneider notified the Union that the City had
implemented the first phase of constant staffing as of March 1 and that
pending retirements would permit the second phase to be implemented on July 1.
The memo noted that "Beginning 1 July 1994, when all (7) seven
slots of the vacation/holiday roster are full, there will be two (2) constant
staffing shifts available."
the time constant staffing was implemented, the City had added two paramedics
per shift. That put minimum
staffing at 38 and authorized staffing at 47 per shift.
When Station 3 became fully staffed in July 1995, minimum staffing
May 16, 1995, the Union secured a "Position Verification Report"
from the City, listing all Fire Department personnel.
The listing showed a group of six positions as vacant, followed by a
group of six positions with two names in each position and an entry in a
column for "job share." Six additional vacancies, at ranks higher than fire fighter,
were scattered throughout the report. Towle
testified the double entries indicated the positions were "double
filled." The City double
fills when it hires fire fighters to replace promotions into higher-ranking
vacancies, and also as a temporary entry for new paramedics.
Five of the employees listed in double-filled positions in the May 16
report were promoted into vacant higher positions listed in the report; a
sixth was on long-term leave, and left within a month.
City hired 5 firefighters in July 1993; 8 in January 1995; 6 in August 1995
(of whom one did not complete training); 4 in January 1996; and 5 in May 1996.
6 employees left the unit between December 1993 and the implementation
of Phase 2; another 10 employees left by January 1996.
Between July 1994 and May 1996, the number of budgeted vacancies fluctuated,
including a low of 6 and a high of 15. As
of the beginning of May 1996, the "A" Shift was assigned 46 fire
fighters; "B" Shift was assigned 47; and "C" Shift had 49.
That month, the number of budgeted vacancies dropped to 5.
March 1994, 715 constant staffing overtime shifts have been hired; 33 have
been cancelled after being scheduled. Towle
testified the City informally agreed to hire overtime from constant staffing
sign-ups even if not all vacation slots were filled.
On occasion, the City has used regular overtime on days when all
vacation slots were filled. Towle
testified she could not always determine why that occurred; since it is more
difficult to hire on overtime, she believes it was because constant staffing
was unavailable. On occasion, the
City used straight time relief in lieu of constant staffing where all vacation
slots were filled. Towle
testified this happened because of temporary overstaffing caused by overhiring.
The largest such temporary overstaffing occurred when the City hired in
anticipation of opening a new fire station, the first new station in 20 years.
City planned to open a new fire station, Station 10, in March 1996.
The City expected some delay in opening, and therefore delayed hiring
for Station 10 until January and May 1996.
After training, the fire fighters hired for Station 10 were used to
fill in for absences at straight time rates, beginning in April 1996.
Station 10 had not yet opened on the date of this arbitration.
City has not calculated constant staffing overtime separately from unplanned
overtime. Overall overtime hours
increased after constant staffing was implemented.
The Union has received complaints that employees have signed up for
constant staffing and had it cancelled at the last minute.
Current Union President Bruce Cummings testified employees expected to
be able to plan to work overtime, because they were replacing scheduled
vacation. However, he acknowledged this information came from the
Union rather than from the City.
POSITION OF THE UNION
staffing was intended to be an economic benefit and a way to expect and plan
for overtime work. It was not
an absolute guarantee of a certain amount of overtime.
However, the expectation was that employees would receive the
equivalent of a 2½% to 3% increase and be able to plan for additional work. With these purposes in mind, the City is not living up to the
staffing was intended to be available when seven employees are off on vacation
and an additional employee is absent. Three
witnesses, including Schneider, recalled that agreement.
The documentary evidence supports Knox, Groves, and Schneider.
Schneider's memorandum regarding implementation of constant
staffing is also consistent with the Union's position.
parties assumed there would always be another person absent for some reason,
such as comp time. It is arguable, based on Schneider's memorandum, that the
parties agreed that seven vacation absences would trigger two constant
staffing slots without an eighth absence.
However, the bargaining notes and witness' memories do not support
this. The parties agreed to
assume an eighth absence would occur on any given shift, and an eighth absence
therefore was part of the constant staffing deal.
constant staffing was triggered with seven and eight absences, it only makes
sense for the City to have six floaters on any shift.
With six floaters, one constant staffing person could be hired on the
seventh vacation absence, and one more on the eighth absence.
No other interpretation squares with the testimony, bargaining notes,
and Schneider memorandum. If the
City could overstaff by at least seven, it would render meaningless the
seventh vacation slot. Furthermore,
the purpose of permitting planned or scheduled overtime would be nullified. Constant staffing overtime would be driven by unscheduled,
unpredictable absences, such as sick leave, rather than by planned absences.
The availability of constant staffing overtime could be determined
only shortly before the shift or on the day in question.
City drafted the constant staffing language.
Any ambiguity in the language should therefore be construed against the
The City's interpretation would work a considerable forfeiture of an economic benefit to the Union's members. The Union gave up other economic items in exchange for this benefit. The Arbitrator should prefer the Union's interpretation, which avoids this forfeiture.
Arbitrator should disregard evidence regarding authorized or budgeted staffing
levels, which was not presented or discussed at the bargaining table.
She should also disregard the budget, the City's claim of the number of
constant staffing personnel needed and hired, and the total overtime paid.
constant staffing agreement was more than an agreement to schedule overtime.
There was no guarantee of a specific amount of overtime for members,
but the agreement was more than a scheduling device.
The parties intended to increase the amount of overtime received.
The reduction of six permanent employees was intended to increase
overtime and reduce personnel costs so there was no significant cost to
the City. The expressly
communicated purpose of having planned additional overtime was to create more
overtime work while allowing employees to schedule time with their families.
City agreed to limit the number of extra permanent personnel, not merely to
keep six authorized or budgeted positions vacant.
There was no benefit to reducing personnel by six with no obligation to
maintain the reduction. The
City's interpretation would allow it to increase staffing and use as many
existing extra personnel as it sees fit, so long as six authorized positions
were left vacant on paper. This
would minimize or eliminate constant staffing overtime.
City has more extra personnel now due to early hiring for Station 10.
If the City's argument is accepted, the City will have license to
further erode the constant staffing agreement.
The Union is not unsympathetic to the City's situation with Station 10.
However, the City made an agreement regarding constant staffing
overtime and has an obligation to abide by the Agreement for its term.
The Union is willing to work with the City to accommodate issues
involved in opening new stations.
Union does not seek retroactive relief. It
merely seeks an order to the City to comply with the terms of the constant
staffing agreement for the remaining term of the Agreement.
POSITION OF CITY
Union must prove the City violated the Agreement.
The Arbitrator's role is similar to that of a court in construing
contracts. The Arbitrator must interpret and apply the Agreement, but
cannot legislate new or different contract terms.
The Arbitrator must give effect only to the parties' manifested intent
in agreeing to the language. The
Arbitrator must evaluate what the language meant to the parties when written;
any other meaning that might be read into the language, or any intent not
reflected in the language chosen, is irrelevant.
is no mutual intent if there is no meeting of the minds.
Ambiguous language may mean the parties have not clearly expressed
their intent; or it may mean there was no meeting of the minds, and therefore
no intent to agree or be bound. The
fact that an agreement has not worked in practice as expected by a party, or
that a party did not fully realize the implications of the agreement, is not
evidence of a contract violation. The
Union must show there was a meeting of the minds as to the Union's interpretation
of the terms of the constant staffing agreement.
Without proof of a meeting of the minds, there can be no contract
City did not agree to reduce shift staffing to six overstaff and guarantee two
constant staffing overtime shifts whenever seven vacation slots and one comp
time slot were filled. The City agreed only to provide seven vacation slots per
shift, to hold six positions vacant to provide constant staffing overtime
opportunities, and to develop procedures for constant staffing.
It has done all that.
staffing per shift was 45, and minimum staffing per shift was 36, at the time
of the 1993 negotiations. The
parties knew two paramedic positions were to be filled, bringing minimum
staffing per shift to 38 and staffing per shift to 47.
After constant staffing was fully implemented, the staffing per shift
was to be reduced from 47 to 45, reducing total staff by six.
Those six positions were to be held vacant rather than eliminated,
creating a pool of budgeted dollars to pay for constant staffing overtime.
Thus, the City was to go from nine overstaff to seven overstaff.
reference to "eight floaters" per shift does not show that the City
agreed to reduce overstaff from eight to six per shift.
In negotiations, Towle and Schneider told the Union Lyon's numbers were
wrong. Knox acknowledged the schedule of 45 positions with 36
minimum staffing per shift. He explained
the "eight floater" analysis in a manner consistent with the
practice of allocating nine overstaff per shift.
Schneider told the Union that the City staffed at nine overstaff.
The Union's understanding of staffing levels during negotiations was
consistent with the City's. The
notation of 45 staff for 36 minimum staffing in the City's bargaining notes is
consistent with this practice and with the testimony.
At no point did anyone assert that staffing per shift at the time was
only 44 positions.
3 staffing is the key to understanding the staffing disagreement.
The Union's negotiators assumed the 45 per shift figure included an
additional minimum staffing position to bring Station 3's regular staffing
from two to three positions, without hiring any additional staff. This assumption was not communicated to the City during
bargaining. It was unrealistic
given the parties' negotiations over Station 3 staffing. The City made no commitment to increase staffing at Station 3
unless funding could be secured for the additional personnel.
The issue of staffing Station 3 was off the table before the Union's
first constant staffing proposal. The
Union filed this grievance in June 1995, before the additional Station 3
positions were authorized. The
City had no reason to suspect the Union was including an additional position
for Station 3 in its calculation of minimum staffing.
The Union has not established that the City agreed to reduce staffing
by nine positions, or three per shift.
City did not guarantee to hire constant staffing overtime when the seventh and
eighth vacation and comp time slots were filled.
The written agreement makes no such promise.
The City made no such promise at the bargaining table.
None of the Union's witnesses could point to such a promise.
The City's negotiators told the Union that constant staffing overtime
would not be hired when straight time personnel were available on the shift to
work. A promise to guarantee
constant staffing overtime to fill the seventh and eighth vacation and comp
time vacancies would require the City to hire overtime it did not need.
The City believed it was reducing its planned overstaff from nine to
seven. It planned its personnel allocation to have the seventh
person available at straight time to fill the seventh vacancy.
The Arbitrator cannot give the Union a right it failed to obtain at the
administrative rules talk only about when and how employees can sign up for
constant staffing shifts. The rules make no guarantee that those who sign up will be
hired. In announcing the program,
Chief Schneider informed employees that once constant staffing was fully
implemented, there would be two constant staffing shifts available for sign-up
when the vacation/holiday roster was full.
His announcement does not mean two constant staffing overtime shifts
would be hired.
Union's real issue is that not everyone who signs up for constant staffing
overtime is hired. Some are not
hired because the employee scheduled for overtime is not available.
Some are not hired because of unequal shift strengths and the City's
group hiring practices. The City
does not regularly overhire. The
practice of hiring by group does not affect the availability of constant
staffing overtime. Except for the
anomaly of Station 10, group hiring did not reduce the number of vacancies
maintained below six. This
anomaly was resolved with the opening of the station.
Union was aware of uneven shift strengths and the City's practice of group
hiring. Keeping shift strength
equal would require fire personnel to cross shifts on a regular basis, a
practice the Union has consistently opposed.
The Union never asked the City to agree to keep shift strength equal on
a daily basis or to change its hiring practices.
In renegotiating the constant staffing agreement in November 1994,
after constant staffing was fully implemented, the Union made no proposal to
change the agreement and raised no issue about the City's failure to comply.
City does not assert that it can add staff to shifts at its whim regardless of
the constant staffing agreement. It
can fill only positions authorized by the budget, and must keep expenditures
within budget for the year. It
agreed to keep six positions vacant for constant staffing purposes.
As long as it maintains those vacancies, it can fill vacancies and
newly authorized positions according to its established hiring practices, and
it can continue its longstanding practice of hiring overtime only when needed.
position verification report of May 16, 1995, does not indicate the City has
double filled six positions. There
are at least six vacancies in the report, in addition to the six positions
held vacant for constant staffing overtime, to account for the six double
Union did not give up economic benefits in exchange for constant staffing
overtime. The Union accepted a
wage package that was at market, and it chose to abandon its specialty pay
proposal as an incentive for the City to agree to constant staffing.
It can only speculate that it would have gotten more money or specialty
pay. Even if it gave up real
money in exchange for constant staffing, it was still entitled only to the
agreement it bargained. If the
agreement does not accomplish the Union's objectives, the Union must live
with the bargain it made, at least until contract negotiations open.
Union produced no evidence that the City has not hired constant staffing
overtime on a regular basis. Hearsay complaints from members that constant staffing
overtime was not working as expected proves nothing about the actual
Union has benefited from the constant staffing agreement.
Increased vacation slots and reduced staffing per shift increased the
need for overtime generally. Employees
sign up for constant staffing overtime in advance.
Overtime hours increased when constant staffing overtime was implemented
and remained at the higher level in the two years thereafter.
The City has done all it promised to do to implement constant staffing. The Union got what it bargained. If the constant staffing agreement is not meeting the Union's expectations, the place for the Union to fix it is at the negotiating table. The grievance should be denied.
Union is the moving party in this contract interpretation dispute.
It thus bears the burden of establishing that its view of the Agreement
is correct and that the City has breached the Agreement.
applicable standards for contract interpretation are well established.
Where the language is clear and unambiguous, the Arbitrator must give
effect to the parties' intent. That
is so even where one party finds the result unexpected or harsh. Extrinsic evidence cannot be used to vary clear contract
language. Where contract language
is unclear or ambiguous, the Arbitrator may look to extrinsic evidence of
the parties' intent. Such
evidence includes bargaining history, contemporaneous statements regarding the
agreement reached, and post-contract clarifications and modifications.
Arbitrator must avoid interpreting ambiguous language to nullify or render
meaningless any part of the Agreement if another reasonable interpretation
gives effect to all provisions. The
Arbitrator must prefer that interpretation which avoids harsh, absurd, or
nonsensical results. Any
ambiguity not removed by other rules of interpretation may be removed by
construing the ambiguous language against its proponent.
This aid in construction does not apply where the final language
differs substantially from the unilaterally-drafted language, and both parties
approved the final language.
the Agreement does not specifically address the issue raised in a grievance,
the Arbitrator must attempt to discern the parties' intent.
However, the Arbitrator may not legislate in the guise of
interpretation. The Arbitrator
must apply principles reasonably drawn from other provisions of the
Agreement to give meaning to the applicable provisions.
constant staffing MOU has four clear requirements:
Reduce personnel by a total of six, in two phases;
Limit call shifts to the shift immediately following employees' regular
Form a study group to develop constant staffing policies and
Make available seven vacation and holiday slots per shift.
also clearly prohibits the Arbitrator from increasing the number of positions
eliminated and the hours available for constant staffing.
Further, to give meaning to the obligation to formulate rules and
policies, it is implicit that those rules and policies must be followed.
post hoc reasoning suggests a link between the number of vacation slots
and the number of overstaff. The
plain language of the constant staffing MOU does not make this link, nor does
the bargaining history suggest that the parties made this connection at
the time of negotiations. On the
contrary, the Union initially proposed to reduce overstaff by three, which
would have left six overstaff. The
Union nonetheless proposed to increase the number of vacation slots to ten.
THE STATION 3 ISSUE
constant staffing MOU implicitly requires the City to maintain the six-person
reduction required by the first sentence.
However, absent more, it would be improper to read in an additional requirement
that the City meet future increased minimum staffing needs by further drawing
down overstaff. Such an interpretation would indirectly achieve what the
second paragraph directly prohibits.
in the bargaining history suggests that the parties discussed the impact on
this provision from increased staffing at existing stations.
In the spring of 1993, when the parties bargained the constant staffing
MOU, they had only the hope that a way could be found to fully staff Station
3. The parties agreed only to
pursue funding for Station 3 staffing, a process that took over two years.
constant staffing MOU language differs from both parties' final offers.
Neither final offer addressed the issue of changes in minimum staffing
needs. As the proponent of the
new provision, if the Union sought to require future increases in minimum
staffing to be met by reducing overstaff, it was incumbent on the Union to
make that a part of its proposal. It
did not do so, either initially or in its final offer.
It thus cannot be concluded that the parties agreed in 1993 not to
increase per-shift staffing to cover any later increase in staffing at Station
the language of the constant staffing MOU nor the bargaining history reflects
any agreement to prohibit hiring for vacancies of which the City had advance
notice. Except for the temporary
effect of the Station 10 hiring, overhiring did not reduce the number of
vacancies below six, and thus was not inconsistent with the City's obligations
under the constant staffing MOU.
temporary impact of hiring for Station 10 did not breach the requirement to
reduce staffing. The parties did
not discuss or agree upon restrictions in hiring for new stations.
Absent such an agreed-upon restriction, the City remained free to
continue to follow its normal hiring practices.
It was consistent with historical hiring practices to hire in
groups before the planned opening, in order to have trained fire fighters
available to open the new station. Indeed,
had Station 10 opened as planned, the City would have been underhired until
the second round of Station 10 hiring and training.
evidence exists that the City maintained vacancies only on paper.
Since the start of the 1993-95 Agreement, the City hired a total of 28
employees. It lost 16 employees
during the same period. The
only increases in authorized positions occurred in conjunction with increases
in minimum staffing. Minimum
staffing increased by two paramedics per shift; one Station 3 fire fighter
per shift; and three fire fighters per shift in anticipation of opening
Station 10--an increase of six per shift, or 18 total.
With the anticipated opening of Station 10, there will continue to be a
net loss of six overstaff since the start of the 1993-95 Agreement.
It is unnecessary to address in this case whether the City would have
violated the Agreement by increasing authorized positions more than it
increased minimum staffing.
The remaining question is whether the actual hiring of constant staffing shifts violated the constant staffing MOU. The Union has voiced no quarrel with the occasions on which the City has hired constant staffing overtime in lieu of regular overtime. This dispute involves only the question of whether the City failed to hire constant staffing when it was required to do so.
constant staffing MOU made it more likely overtime would be available, by
reducing staff and increasing daily vacation and holiday slots.
Although by all accounts the parties agreed that overtime would be at
the fire fighter's regular station and rank, the constant staffing MOU was
silent on this detail. Instead,
it left this detail, and others, to the rule-making processes of the study
the parties recognize, the Administrative Rules are a supplement to, not an
amendment of, the constant staffing MOU.
The plain language of the constant staffing MOU does not specify an
event which will automatically trigger the hiring of constant staffing
overtime. Both Towle and
Schneider testified, without contradiction, that the City rejected any
guarantee of constant staffing overtime if straight time personnel were
available. Similarly, as Lyon acknowledged,
the Administrative Rules were not intended to guarantee that constant staffing
would be hired merely because an employee had signed up for it.
Rather, they were simply designed to make it likely constant staffing
overtime would be hired. The Administrative Rules also recognized that constant
staffing could not be planned, by providing a detailed process for dropping
and adding vacation and holiday shifts.
all accounts, during negotiations, the parties discussed in detail a link
between hiring constant staffing and filling all seven vacation slots, plus an
additional comp time slot. The
Administrative Rules incorporate the seven vacation slots, but do not refer to
the comp time slot. On the
contrary, they turn on the "7th slot."
It is not surprising that employees, who were not privy to negotiations,
have complained about constant staffing shift availability.
However, the Union has disavowed any claim that the Administrative
Rules modified the original agreement and required seven, rather than
practice, the constant staffing process gave the Union only part of what it
sought. Employees received
increased overtime and more available vacation slots; they did not get the
hoped-for predictability. Variations in shift strength, coupled with both parties'
reluctance to move employees among shifts, have made some shifts relatively
overstaffed and others relatively understaffed. Unforeseen delays in the opening of a new station led to an
unexpectedly long overhire situation. Such
factors made it less than certain that overtime shifts would be available when
all the vacation slots had been filled.
the agreed-upon language simply does not provide the degree of predictability
the Union now seeks. Had the Union
sought to require automatic hiring of constant staffing overtime whenever
vacation slots and one comp time slot were filled, it could have included such a
provision in its proposal. Since it
did not, the Arbitrator is without authority to impose a provision which was
never specifically proposed and to which the parties did not agree.
The parties remain free to explore in bargaining whether other means
exist to increase the ability to plan for overtime.
all the above reasons, it is concluded that the City has not violated the
Agreement. The grievance therefore
must be denied.
City is not violating the Labor Agreement by the way in which it is interpreting
and applying constant staffing overtime.
DATED: August 29, 1996
LUELLA E. NELSON -
When this Memorandum of Understanding (the "constant staffing
MOU") first appeared in the parties' 1993-95 Agreement, it did not
include the final paragraph of the quoted language.
To aid in distinguishing this Memo of Understanding from the constant
staffing MOU, this will be referred to as the "1987 MOU".
As used in this Opinion, "fire fighters" also includes
engineers, lieutenants and captains.
The number "5" was written over the number "4".
Payroll rosters throughout the period of negotiations show
minimum staffing at 36 and authorized (or budgeted) staffing at 45 per
shift. On February 16, 1993,
actual staffing for Shift C was 43; by March 30, it was 45.
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028