28 day free trial

 

 

  

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

Search arbitrators | National Arbitration Center | Search awards 

 

Title: City of Eugene and Eugene Firefighters Association, Local 851, International Association of Fire Fighters
Date: August 29, 1996 
Arbitrator: Luella E. Nelson 
Citation: 1996 NAC 113

                                                   IN ARBITRATION PROCEEDINGS

                                      PURSUANT TO AGREEMENT BETWEEN THE PARTIES

 

In the Matter of a Controversy

between

Eugene Firefighters Association, Local 851, International Association of Fire Fighters

and

City of Eugene.

RE:             Overtime

 

 

 

ARBITRATOR'S

   OPINION AND AWARD

 

                                                                                            

This 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.

Hearing 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.

APPEARANCES:

On behalf of the Union: 

Kathryn T. Whalen, Esquire, Bennett, Hartman, Reynolds & Wiser, 851 SW Sixth Avenue, Suite 1600, Portland, OR   97204-1376 

On behalf of the City: 

Sharon A. Rudnick, Esquire, Harrang Long Gary Rudnick P.C., 101 E Broadway, Suite 400, Eugene, OR   97401

 

              ISSUE

 

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 appropriate remedy?

 

      RELEVANT SECTIONS OF AGREEMENT

MEMORANDUM OF UNDERSTANDING[1]

...

2. 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[2]

...

... 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

2.0                Definitions

2.1                "Minimum staffing":  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.

...

2.5              "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 purposes.

2.6              "Extra Members":  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.

...

2.13              "7th Slot"  Occurs when all seven vacation and holiday slots are full.

...

 

4.0                Constant Staffing Selection Procedure

4.1                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.

...

5.0                Selection Criteria

5.1               Selection of which day you will work:

1. Select only days which follow your shift, and which has all seven slots filled.

2. Find one person out of the seven you are "Qualified" to work for using the following criteria:

A. Same Rank

B. Same Station

C. EMT 2(I) level or higher, if at a medic station.

...

6.0                Other Constant Staffing Selection Procedures

6.1                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.

6.2                Procedure:  When all seven shifts fill up.

1. It must be at least seven days or more before the date.

2. 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.

3. Call the on-duty Constant Staffing Representative (CSR) to inform them the shift is available to work.

4. The on-duty Constant Staffing Representative (CSR) will contact the next person up for work.

...

7.0                Miscellaneous Rules Regarding Holidays

7.1                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:

1. Your District Chief

2. The member signed up to work the seventh slot, and

3. The constant Staffing Coordinator (CSC) or representative.

Giving 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.

7.2            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 to work.

....

 

             FACTS

This 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[3] allowed to be on vacation on any particular day, and set up a system of scheduling overtime.

Before 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.

FIREFIGHTER STAFFING

Fire 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.

The 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.

New 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.

At 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

Station 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 table.

In 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.

BARGAINING HISTORY

In 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:

The 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.

Constant 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.

The proposal described the implementation process as follows:

We 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.

The 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.

In 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 used "4[4] 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.

Knox 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.

Then-Operations 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.

In 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.

On May 7, 1993, both parties proposed specific language.  The Union's proposal read as follows:

The 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.

The City's proposal read as follows:

The 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.

The parties agreed to the City's language, and developed final language after negotiations ended.

THE IMPACT OF STATION 3

Knox 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.

Towle 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 simple attrition.

THE "7th SLOT" AND "COMP TIME SLOT"

Knox 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.

Towle 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.

Schneider 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.

IMPLEMENTATION OF CONSTANT STAFFING

Lyon 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 overstaff.

Lyon 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."

On 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."

By 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 became 39.

On 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.

The 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.

Since 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.

The 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.

The 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

Constant 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 agreement.

Constant 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.

The 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.

Since 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.

The City drafted the constant staffing language.  Any ambiguity in the language should therefore be construed against the City.

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.

The 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.

The 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.

The 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.

The 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.

The 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

The 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.

There 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 violation.

The 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.

The 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.

Lyons' 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.

Station 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.

The 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 bargaining table.

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.

The 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.

The 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.

The 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.

The 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 filled positions.

The 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.

The 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 experience.

The 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.

         OPINION

PRELIMINARY MATTERS

The 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.

The 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.

The 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.

Where 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.

THE MERITS

The constant staffing MOU has four clear requirements:

1.  Reduce personnel by a total of six, in two phases;

2.  Limit call shifts to the shift immediately following employees' regular shift;

3.  Form a study group to develop constant staffing policies and procedures; and

4.  Make available seven vacation and holiday slots per shift.

It 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.

Only 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

The 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.

Nothing 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.

The 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 3.

OVERHIRING

Neither 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.

The 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.

No 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.

CONSTANT STAFFING SHIFTS

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.

The 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 group.

As 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.

By 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 seven-plus-one, vacancies.

In 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.

However, 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.

For all the above reasons, it is concluded that the City has not violated the Agreement.  The grievance therefore must be denied.

           AWARD

 

The 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 - Arbitrator


[1]           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.

[2]           To aid in distinguishing this Memo of Understanding from the constant staffing MOU, this will be referred to as the "1987 MOU".

[3]           As used in this Opinion, "fire fighters" also includes engineers, lieutenants and captains.

[4]           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.

 

Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search  
Employment Law Memo | EEOC Info | NLRB Info | Arbitration | Articles | Law Firms | Site Map 

 

Get your 28 day trial now 



LawMemo, Inc.
Post Office Box 8173 Portland, OR 97207
Phone: 877 399-8028