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IA-17-97
In the Matter of Interest Arbitration Between International Association of Firefighters, Local 2557 V. Marion County Fire District #1. IA-17-97
 
I. INTRODUCTION
 
The undersigned was selected as Interest Arbitrator by the International Association of Fire Fighters, Local 2557 (Union) and the Marion County Fire District 91 (District). The selection was made in accordance with ORS 243.746, as amended, and the Administrative Rules of the Oregon Employment Relations Board.
 
A hearing was held before the undersigned arbitrator on February 20, 1998 in Salem, Oregon. The Union was represented by Michael J. Tedesco, Attorney at Law and the District by Kathy Peck, Attorney at Law. Both sides were afforded a full opportunity to make verbal and written presentations on the issue in dispute. The hearing was closed at the conclusion of oral presentations on the issue in dispute on February 20, 1998.
 
II. THE ISSUE
 
The only issue in dispute involves the proposals of the parties with respect to Article 13 D governing layoffs.
 
1. ARTICLE 13 Appointment, Promotion, Tenure, Separation
 
Under the terms of the predecessor labor agreement, layoffs were covered by the District's civil Service Rules.
 
A. The District
 
The District makes the following proposal with respect to layoffs:
 
"D. In the event of a layoff, the selection of Bargaining Unit employees to be laid off will be made within individual service areas based on the relative skills, abilities and performance of the employees within that service area to perform the work remaining as follows:
 
1. For the purpose of layoffs and recalls, the following service areas are recognized: Emergency Response, Non-emergency Transport and Support.
 
2. An employee's performance will be evaluated based on a review of comments from the Physician Advisor, if applicable; Quality Improvement Group; supervisory/management input and his/her most recent peer review. Disciplinary actions contained within the employee's personnel file, as well as commendations received, may also be considered.
 
3. When the performance, skills and abilities of employees within a service area are relatively equal, employees will be laid off by seniority.
 
4. The District agrees to meet with the Union to discuss the development of a performance-standard for layoffs. If agreement is reached on a performance-standard, such agreement will be reduced to writing, signed by the parties and will replace Section D.2. above. If no agreement is reached, Section D.2. above shall continue in effect.
 
The employee within a service area who would otherwise be laid off may bump the least senior employee in another service area, as long as he: 1) has time with the District in the classification he seeks to bump into; 2) has the current skills and qualifications for that position; and 3) exercises that bump right, in writing, within ten (10) calendar days of receipt of his notice of layoff. If this bump occurs, the least senior person in that service area will be laid off.
 
E. Laid off employees will be recalled to employment within their service areas in inverse order of layoff, provided they have the required State certification for the position and have been approved by the Physician Advisor, if applicable. No new employees may be hired in a service area until all laid off employees within that service area have been given an opportunity to return to work.
 
F. An employee shall lose all seniority credits and employment shall be severed in the event of:
 
1. Voluntary resignation;
 
2. Discharge;
 
3. Failure to return from layoff within 10 calendar days following receipt of recall notice by certified mail, or 14 calendar days after deposit of recall notice by certified mail, whichever occurs earlier. It is the employee's responsibility to provide a current address;
 
4. Continuous absence from work due to layoff for 2 years;
 
5. Failure to return to work following expiration of an authorized leave of absence;
 
6. Loss of reinstatement or reemployment rights pursuant to Oregon law governing injured workers.
 
G. Seniority will be considered a factor in determining promotional eligibility and in promotional examination for Bargaining unit positions."
 
According to the District its proposal is reasonable and should be awarded.
 
The District concedes that the factor of comparability among fire departments in Oregon does not support its proposal. However, in the District's view the changes brought about by the passage of Senate Bill 750 make its proposed relative ability standard for determining the order of layoffs more supportable. More specifically, the District argues that under the revised SB 750 standards, Interest Arbitrators must give controlling weight to the Interest and Welfare of the public. The District argues further that the relative ability standard it proposes is eminently reasonable and will still allow senior employees to be retained as long as the junior employee is not demonstrably superior. In summary, the District argues that it is in the best interest and welfare of the public to retain the most qualified fire fighters in the event of a layoff.
 
B. The Union
 
The Union's proposal is as follows:
 
"D. In the event of a layoff, bargaining unit employees will be laid off in inverse order of seniority within there service area. There are two service areas for purposes of this article, 1.) fire suppression and emergency (classification including Firefighter, Lt., Captain and Captain Shift Commander) and 2.) all other bargaining unit positions.
 
The least senior person within a service area who would otherwise be laid off may bump a less senior employee in another service area, as long as, he has time in the classification he seeks to bump into and has current qualifications for that position. If this bump occurs the least senior person in that service area will be laid off. Bumping rights must be exercised within 10 calendar days of receipt of notice of layoff."
 
In the Union's view the Interest and welfare of the public factor in this case does not dictate strongly in favor of either proposal. According to the Union, this is so for several reasons. While the District's interest in retaining the best qualified fire fighters is understandable, this interest has to be balanced against the well recognized industry standard whereby seniority governs in layoff situations. It is not in the best interest of the public to use public funds to promote a proposal that is contrary to the industry standard. Moreover, by all accounts this District maintains a highly qualified and competent work force. It would not be in the best interest of the public to inject a highly subjective relative ability standard into the layoff procedure which would have the effect of pitting management against bargaining unit firefighters.
 
As previously indicated, whether one analyzes this case under 243.746 (4) (e) (Comparability) or (4) (h) (other Factors) it is clear that the Union's proposal conforms to the industry standard. In this regard, it is undisputed that seniority is the standard used by virtually every fire department in the State of Oregon to determine the order of layoffs. The only variation on this theme is that in some departments classification rather than departmental seniority is utilized. The Union has addressed this issue in its proposal by creating two (2) categories - emergency and non-emergency personnel. By doing so, the Union has provided the District with more flexibility in the unlikely event layoffs become necessary.
 
There is an additional problem with the District's proposal that has to be addressed. Under the District's proposal in paragraph 4, "the District agrees to meet with the Union to discuss the development of a performance standard for layoffs." This proposed language is problematic for several reasons. First, the use of the words "meet" and "discuss", both of which are terms of art in the field of labor relations, strongly suggest a waiver of the Union's bargaining rights. Second, this language is problematical because rather than bringing bargaining to an end, it invites further discussions on the subject. By contrast, the Union's proposal is more in conformance with the public interest because it brings the negotiations to a close.
 
C. Opinion
 
Based on an application of the applicable statutory criteria to the facts of this case, I find that the Union's proposal is more appropriate.
 
(1) The Interest and Welfare of the Public
 
As the District correctly observes, the landscape has changed under SB 750 because now Interest Arbitrators are required to give first priority to the "interest and welfare of the public" and secondary consideration to the other statuary criteria.
 
It is true that it is in the best interest of the public to retain the most qualified firefighters in the event layoffs become necessary. Admittedly the performance review procedures set forth in the District's proposal and the potential for mutually agreed upon performance standards applicable in layoff situations provide a method for accomplishing this objective.
 
Be that as it may, it is not at all clear to me that the relative ability language proposed by the District is the best means of accomplishing this objective. in the first place, layoff decisions made on the basis of a relative ability analysis are by definition subjective. By contrast, decisions made on the basis of seniority are objective. Second, because layoff decisions made on the basis of a relative ability analysis are subjective they invariability lead to grievances and conflicts within the bargaining unit. This is so because they tend to pit one employee against another and often place a union in the unenviable position of deciding which employee to represent. In my view the conflicts within the bargaining unit that are likely to arise when layoff selections are made in this manner are not in the best interest and welfare of the public. Finally, management has the tools in place through the evaluation, training and disciplinary processes to make certain it has a competent and qualified work force. By all accounts, this department has done an excellent job in this regard. In my view issue such tools are available to management, it is neither necessary nor is it in the best interest of the public to apply relative ability factors in deciding which employees should be retained in layoff situations.
 
(2) Other Factors
 
Comparability is another of the factors traditionally relied upon by Interest Arbitrators- Since this case does not involve compensation issues, comparability is most appropriately discussed under the "Other Factors" criterion (See, 243.746 (4)(h).
 
As the Union correctly observes, this factor strongly militates in favor of the Union's proposal. Stated differently, layoffs based on seniority are without question the industry standard. Moreover, the Union has by proposing separate classes for layoff purposes provided ample flexibility to the District.
 
The only remaining issue has to do with the Union's contention that its proposal is preferable because it brings closure to the negotiations process. I agree.
 
D. Award
 
Adopt the Union's proposal.
 
Respectfully submitted on this 20th day of March, 1998,
 
George Lehleitner
 
Interest Arbitrator
 
Representing the Union: Michael J. Tedesco, Attorney at Law
 
Representing the District: Kathy Peck, Attorney at Law