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IA-14-99
In the Matter of the Arbitration of an Interest Dispute Between: Clackamas County Fire District No. 1,and International Association of Fire Fighters, Local 1159.(confined Space Rescue Premium)IA-14-99.
 
JURISDICTION
 
On May 12, 1999, Clackamas County Fire District No. 1 (hereinafter "employer") notified the undersigned arbitrator that she had been selected to hear an interest arbitration resulting from an impasse in bargaining over a confined space rescue premium. The selection of the arbitrator, and the interest arbitration proceedings which followed, were conducted pursuant to the ORS 243.742 et seq.
 
The arbitration hearing was held August 16, 1999, in Milwaukie, Oregon. The parties submitted legal argument orally at the close of the hearing.
 
PERTINENT STATUTORY LANGUAGE
 
The State of Oregon regulates interest arbitration procedures through the Oregon Revised Statutes (ORS). ORS 243.746 provides, in part:
 
(4) Where there is no agreement between the parties, or *where there is an agreement but the parties have begun negotiations or discussions looking to a new agreement or amendment of the existing agreement, unresolved mandatory subjects submitted to the arbitrator in the parties' last best offer packages shall be decided by the arbitrator. Arbitrators shall base their findings and opinions on these criteria giving first priority to paragraph (a) of this subsection and secondary priority to subsections (b) to (h) of this subsection as follows:
 
(a) The interest and welfare of the public.*
 
(b) The reasonable financial ability of the unit of government to meet the costs of the proposed contract giving due consideration and weight to the other services, provided by, and other priorities of, the unit of government as determined by the governing body. A reasonable operating reserve against future contingencies, which does not include funds in contemplation of settlement of the labor dispute, shall not be considered as available toward a settlement.
 
(c) The ability of the unit of government to attract and retain qualified personnel at the wage and benefit levels provided.
 
(d) *The overall compensation presently received by the employees, including direct wage compensation,* vacations, holidays and other paid excused time, pensions, insurance benefits *and all other direct or indirect monetary benefits received.*
 
(e) *Comparison of the overall compensation of other employees performing similar services with the same or other employees in comparable communities.* As used in this paragraph, "comparable" is limited to communities of the same or nearest population range within Oregon. Notwithstanding the provisions of this paragraph, the following additional definitions of "comparable" apply in the situations described as follows:
 
(A) For any city with a population of more than 325,000, "comparable" includes comparison to out-of-state cities of the same or similar size;
 
(B) For counties with a population of more than 400,000, "comparable" includes comparison to out-of-state counties of the same or similar size; and
 
(C) For the State of Oregon, "comparable" includes comparison to other states.
 
(f) The CPI-All Cities Index, commonly known as the cost of living.
 
*(g) The stipulations of the parties.*
 
(h) Such other factors, consistent with paragraphs (a) to (g) of this subsection as are traditionally taken into consideration in the determination of wages, hours, and other terms and conditions of employment. However, the arbitrator shall not use such other factors, if in the judgment of the arbitrator, the factors in paragraphs (a) to (g) of this subsection provide sufficient evidence for an award.
 
(5) Not more than 30 days after the conclusion of the hearings or such further additional periods to which the parties may agree, *the arbitrator shall select only one of the last best offer packages submitted by the parties* and shall promulgate written findings along with an opinion and order. The opinion and order shall be served on the parties and the board. Service may be personal or by registered or certified mail. The findings, opinion and order shall be based on the criteria prescribed in subsection (4) of this section.
 
*(6) The cost of arbitration shall be borne equally by the parties involved in the dispute.*
 
[Emphasis by *underline* added.] NOTE: Text between asterisks (*) underlined in original.
 
STATEMENT OF THE ISSUE
 
The parties stipulated that the issue for the arbitrator to resolve is:
 
1. What premium pay, if any, should be paid to bargaining unit members assigned to the district's confined space rescue program?
 
STIPULATIONS OF THE PARTIES
 
As directed by ORS 243.746(g), your arbitrator considered the following stipulations of the parties:
 
1. The issue about confined space rescue involves mid-contract bargaining under ORS 243.698. The issue is properly before the arbitrator pursuant to ORS 243.746.
 
2. A collective bargaining agreement is in effect between the District and Local 1159. Its term is July 1, 1998, to June 30, 2001. The parties were in negotiations for that agreement from February 5, 1998, through May 1, 1998.
 
3. The District is the result of the merger of three separate fire prevention organizations: Clackamas County Fire District No.1, Oak Lodge Fire District, and the Fire Department of the City of Milwaukie. At the time of the mergers, all fire prevention employees of Oak Lodge Fire District and Milwaukie Fire Department became the employees of the District. The current collective bargaining agreement is the fist agreement that covers all three groups of employees in a single bargaining unit with a single collective bargaining agreement.
 
4. The District operates an extensive training program for its employees and employees of other fire districts. The parties have never negotiated over the content of the training programs operated by the District's Training Division or over which employees would participate in training programs.
 
BACKGROUND FACTS
 
Confined Space Definition and Example
 
A "confined space" is defined as a space that: 1) Is large enough and so configured that an employee can bodily enter and perform assigned work; and 2) Has limited or restricted means for entry or exit (for example, tanks, vessels, silos, storage bins, hoppers, vaults, and pits are spaces that may have limited means of entry.); and 3) Is not designed for continuous employee occupancy.(1)
 
Tuallatin Valley Fire and Rescue District (TVF&R), an employer north and west of Clackamas Fire District, has had a tactical rescue team since 1993.(2)
 
That team performs confined space operations and rescues; trench rescues; high level/high angle rescues; rope rescues; and has knowledge of heavy rescue systems. In total, initial training for all the above operations encompasses at least six weeks of time. Additionally, each team member participates in one hour daily "refresher training", eight hours weekly field training and two weeks annual supplemental training.
 
A lieutenant paramedic from TVF&R's tactical rescue team, Michael Duyck, testified that a first responder fire fighter would be on the scene within four to six minutes of the district's notice of an accident. That employee is responsible for gathering information. The tactical team would be arriving in 20 to 30 minutes to devise the rescue plan. Thereafter, it could take three to four hours for the team to stabilize the area and extricate the victim. Duyck testified that the team is called out less than once a month. In the two years he has been on the team, his shift has responded to three calls.
 
Duyck confirmed that all fire fighter employees of TVF&R are trained in confined space recognition and can do some rescues without the technical team being on the scene, if no special atmospheric monitoring or rope systems are involved.
 
Stevens Road Incident
 
During April, 1997, workers were excavating a trench to install a drainage pipe on Stevens Road, within the Clackamas Fire District. When the trench was 16 feet wide, 25 feet long and 25 feet deep, one wall collapsed. Two large, inch thick metal plates weighing several hundred pounds apiece were knocked over throwing a worker into the trench and crushing his legs.
 
Fire fighters from Clackamas Fire District arrived at the scene first. After assessing the situation, the site commander called out an additional crew for manpower, one crew for vertical rescue needs and one squad to bring the technical rescue trailer. A paramedic was sent into the trench to determine the extent of the victim's injuries. This was done even with the understanding that there was a potential for additional collapse, since the trench did not appear to have adequate shoring in place. Also, there was nothing available on the scene to use to stabilize the dirt before the rescue could be attempted. The paramedic reported that the victim had life threatening injuries. The commander assigned the vertical rescue team, which was to use a "stokes" stretcher, to enter the trench and get out the victim. A privately owned track-hoe was parked next to the trench. The track-hoe operator raised and lowered the stretcher. The track-hoe was not moved from the scene due to the unknown stability of the trench. The victim was flown to University of Oregon hospital.
 
The employer's evaluation of the Stevens Road incident concluded that it should address training needs for confined space rescue. It was advanced that there was no training in confined space "awareness" at the time of this incident. Duyck testified that it is a major mistake to send people into an unstable confined space.
 
The Parties' Negotiations
 
Along with negotiating a new collective bargaining agreement with the IAFF during the beginning of 1998, the district was also merging three departments into one, as was mentioned in the parties' stipulations. Milwaukie had 21 fire fighters and the lowest pay schedule. However it did offer incentive pays for performance, i.e. a cash payment for not taking vacation days. It also offered a trench rescue response premium. Oak Lodge had the highest pay schedule for its fire fighters and, in addition, paid ceratin specialty premiums. Clackamas was the largest employer in the merger with 60 fire fighters.
 
Both the association and the employer agreed during the bargaining that their goal was to establish a straight pay situation as the easiest way to tackle the three separate compensation systems. Karl Keonig, the shop steward, confirmed that the union team made the decision to get parity pay, and not seek specialty premium pays. Furthermore, the union learned during bargaining that the employer did not want to pay premium pays, but was willing to increase the overall salary schedule. It wanted to phase out the Oak Lodge and Milwaukie speciality premiums and offer a higher straight salary schedule.
 
Clackamas fire district had a swift water rescue team in place during these negotiations. The swift water team was developed by the employees at station 25 after a major flood in 1996. Although the formation of the team was applauded by the administration, team members did not receive any premium pay. The team has had a high call day of five call outs on one Saturday. It had 12 to 15 call outs in its first year. In July 1998 the team was dispatched six times. During the 1998 negotiations, the swift water team did not want to jeopardize its successful existence, nor divert money from desired equipment, by asking for money for speciality pay. Consequently the swift water recuse bargaining unit members told the union negotiating team not to seek a premium for them.
 
By May 1998, the parties had successfully concluded their negotiations for a new collective bargaining agreement effective July 1, 1998 through June 30, 2001.
 
On January 4, 1999, the IAFF wrote the employer that it had come to its attention that the district "may be considering the implementation of a "confined space" certification requirement for certain members of the bargaining unit." The union claimed that such a requirement would constitute a significant change in working conditions and demanded to bargain the decision and impact of the alleged change. The employer responded that it was merely increasing a component of the training that the district currently provided to ensure that bargaining unit members perform their responsibilities competently and safely.
 
In February, 1999, the employer issued a memo to all personnel notifying them that rescue teams R-29 and R-46 had been renamed Squad 10 and assigned as the crew for the Technical Rescue Vehicle. Squad 10 was described as "confined space technical rescue capable." Apparently, there are 18 employees involved. The employer decided to house Squad 10 at a specific station. Some employees assigned to that station, did not want to be involved in confined space rescue and transferred out to different stations.
 
Clackamas Confined Space Program
 
Since 1996, the district has had a "confined space prop" at its training center that allows for exercises in simulated underground vaults and pipes.(3) After the Stevens Road incident in 1997, the employer ensured that all personnel went through confined space awareness training. Since at least 1997, some component of confined space training has been offered on the district's paid training schedule several times per year. Currently there is some component of confined space rescue training offered one day per month.
 
The employer advanced that over 60% of its personnel are trained above normal fire suppression activities. It has technical training for SCBA situations, terrorist situations, hazardous material situations, vertical low/high angle rescue, vehicle rescue, swift water rescue as well as confined space rescue.(4)
 
There is frequent testimony in the record that the Clackamas has had a confined space rescue team for one year. The announcement about the designation of Squad 10 cam seven months before the interest arbitration hearing. In any event, since the confined space rescue squad has been operable at Clackamas, it has partaken in one rescue.
 
Comparable Jurisdictions
 
The association proposes that a premium pay of $150 per month be paid to bargaining unit members assigned to the confined rescue team. It offered five other departments as comparable jurisdictions: Gresham which pays $100 per month premium; Eugene which pays 3% of the top fire fighter salary premium (stipulated to be less than $124); Lebanon which pays $25 per month; Jackson County Fire District #3 which pays $500 per year; and TVF&R which pays 3% of the top fire fighter salary, equaling $124 per month. It estimates the overall cost of its proposal to be $32,400 per year.
 
The City of Portland also has a confined space rescue team. It pays no premium to employees on the team.
 
POSITIONS OF THE PARTIES
 
The union contends that the employer established a confined space rescue program after the parties had completed negotiations for their current collective bargaining agreement. The union asserts that it filed a timely demand to bargain thereafter. It justifies its proposal for premium pay for the members of the confined space recuse team because of the hazardous nature of the work involved. The union argues that this is not a matter of using this process to get something it could not achieve in bargaining, but rather that the employer has greatly expanded the duties beyond where they were during bargaining.
 
The employer argues that during the post-merger bargaining, the parties agreed to a compensation package that specifically moved away from premium pays by offering a high annual salary to cover everything that fire fighters have to do. It cites to the swift water rescue team which the employer staffs but does not grant any premium pay. The employer contends that the duties in question exited at the time of the parties' negotiations, but that the union did not bring a proposal about confined space rescue to the bargaining table. It claims that an award of such a premium pay is contrary to the agreement of the parties, would undermine the compensation package, and be inequitable within the bargaining unit. The employer proposes that no premium pay be awarded to the members of the confined space rescue team.
 
DISCUSSION
 
The statute is quite clear that an interest arbitrator must give first priority to the "interest and welfare of the public" when formulating the opinion and order.(5) ORS 243.746(4). Also, the statute dictates that "the arbitrator shall select only one of the last best offer packages submitted by the parties". ORS 243.746(4).
 
There is no question that the interest and the welfare of the public favors having a confined space rescue program. A question does exist, however, of whether the specific situation in Clackamas fire district calls for a $150 per month premium.
 
Union confirmed that in bargaining for the 1998 - 2001 agreement, its goal was to get a high salary schedule, as the easiest way to combine the different pay situations among the three merging entities. The employer also wanted one overall compensation system, without premiums for different skills. The union realized that the district's proposal to eliminate all premiums and put the money onto the salary schedule would allow Oak Lodge, the highest paid group in the merger, to still receive cost of living increases each year of the contract. The employer believed that the higher salary schedule, without any premium pays, would allow it to have a skilled and flexible group of employees to meet the needs of the district. Thus the philosophical foundation of their bargaining was the parties' agreement to place all the salary money on the salary schedule instead of diverting any to premium pays.
 
The union argues that what the parties bargained during early 1998 reflected the work load at that time. Therefore when Squad 10 was organized months later, the employer increased duties to certain members of the bargaining unit. However, it is clear from the record that after the Stevens road incident, in spring 1997, the employer recognized that it needed to do more training in confined space awareness and rescue. The employer put the training into effect. If the union believed that the extensive training was beyond normal responsibilities, it could have advanced that during the 1998 bargaining. The record is not persuasive that confined space training is a new work load situation. The training is during the working hours; it is done instead of other training, not in addition to other duties. The union contends that the designation of Squad 10 has caused a significant change in the work life of the employees assigned to that squad. The record does not show, however, that there have been a dramatic number of call outs of Squad 10. Given that confined space rescue training has been regularly scheduled for two years, and given that the team has been called out one time in twelve months, I cannot find a "significant change" in work life since the 1998 bargaining.
 
The union offered the arbitration award City of Medford, (Runkel 1995), for my consideration as guiding precedent. I find that the rational expressed in Medford supports my holding in the instant case. In Medford, the arbitrator determined that the city announced major changes in the entire delivery of emergency medical services (EMS). The union wanted 3.5% increase for each step of the salary schedule for all employees. The city proposed no salary increase. The arbitrator reasoned that his role was to assess the impact and to determine if the change in work was enough to justify a salary increased. He found that from 1992 to 1995 EMS runs had increased from 44 to 182; 34 to 141 and 40 to 127 in selected months. When awarding a 1.5% salary increase,(6) the arbitrator emphasized "... I am mindful of the fact that these fire fighters have been engaged in providing emergency medical services for at least the past ten years, and that the change is more a matter of quantity than it is a radical change in the very nature of the work." Clackamas fire district Squad 10's one call out in one year does rise to a "quantity change" that was found in Medford.
 
The union claims that the confined space rescue team faces immense risk. Although that might be true, I am reluctant to endorse a pay-for-potential-risk approach to fire fighter compensation. Certain stations have more calls than others. Among the stations in the Clackamas fire district the range is from 2,800 annually to 600 annually. Obviously, such an approach creates parity and equity situations. Confined space rescue is dangerous. But fire fighters do a lot of things that are dangerous. No evidence presented that showed firefighters on a confined space rescue are at a greater risk than those on a swift water rescue.
 
The employer justifiably raises an equity issue: why should the swift water rescue team not receive a premium and the confined space team be awarded one. The union responds that the bargaining unit wants it that way. Such an approach does not offer an overall sensible bargaining strategy, and thus is not in the best interest of the public.
 
Finally, there is no adequate explanation of why I should grant a new premium that would be the highest dollar amount among the union's own comparable jurisdictions. Especially in light of such evidence as Clackamas' one call out, versus TVF&R's higher number of call outs.
 
My role is to choose which last best offer is more appropriate: A $150 per month premium or no premium. Employer's position is fair and consistent with what the parties' agreed goals during bargaining. It would serve the welfare of the public, in this specific situation because of the merger of the three different pay schemes, to maintain the agreement made during bargaining to concentrate money on the salary schedule instead of diverting it to premium pays. Continuing this approach to compensation gives both parties a predictable philosophical basis and future for the life of the collective bargaining agreement. Such stability is in the best interest of the public.
 
ARBITRATION EXPENSES
 
Since ORS 243.746(6) provides "The cost of arbitration shall be borne equally by the parties involved in the dispute", the arbitration expenses will be equally divided between the Clackamas Fire District and the International Association of Fire Fighters, Local 1159.
 
ORDER
 
Based on the stipulations of the parties, the sworn testimony of the witnesses, the documents admitted into evidence, and the record as a whole, it is the Order of your arbitrator that:
 
No premium pay shall be awarded to bargaining unit members for confined space rescue training or work.
 
Issued at Chehalis, Washington, on this 11th day of September, 1999.
 
Katrina I. Boedecker, Arbitrator
 
Miller-Nash, by Donna M. Cameron, Attorney at Law , appeared on behalf of the employer.
 
Michael J. Tedesco, Attorney at Law, appeared on behalf of the association.
 
1. U.S. Department of Labor; Occupational Safety and Health Administration (OSHA) Regulations; Standard Number 1910.146(b).
 
2. In addition to the stipulations, the parties offered testimony through witnesses to complete the record.
 
3. At the time it offered more training in confined space rescues than in swift water rescue.
 
4. Initially there is more training involved for swift water rescue that with confined space rescue.
 
5. While the parties stipulated that not all the criteria need be evaluated this specific one issue impasse, they agreed that this statutory priority must remain in effect.
 
6. Medford was issued before the statute was changed to require an interest arbitrator to select, with out modification, an entire final package from one party or another.