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HomeMy WebLinkAbout2000-07-17 City Council (15)TO: City of Palo Allto 5City Manager’s Report HONORABLE CITY COUNCIL FROM:CITY MANAGER DEPARTMENT: HUMAN RESOURCES DATE:July 17, 2000 SUBJECT: CMR:327:00 APPROVAL OF RESOLUTIONS AMENDING THE MERIT SYSTEM RULES AND REGULATIONS REGARDING THE MEMORANDUM OF AGREEMENT WITH INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS (IAFF, LOCAL 1319) AND COMPENSATION PLAN FOR FIRE DEPARTMENT PERSONNEL RECOMMENDATION This report recommends Council approval of the attached resolutions amending Section 1501 of the Merit System Rules and Regulations regarding the Memorandum of Agreement between the City of Palo Alto International Association of Fire Fighters (IAFF, Local 1319) and amendment to the Compensation Plan for non-management Fire Department personnel. BACKGROUND On December 15, 1997 (CMR:497:97), Council approved a three-year agreement with members of the IAFF, Local 1319. The third year of the agreement provided for a salary- only reopener to determine comparable survey agencies and salary range rates for represented classifications, to become effective with the pay period including July 1, 1999. Although the City and the Union met and conferred on numerous occasiohs, negotiations failed to result in an agreement. The IAFF, Local 1319 invoked impasse arbitration procedures, pursuant to Compulsory Arbitration provisions of the City of Palo Alto Charter. Arbitration hearings were held on February 29, March 9, and 10, 2000 with a neutral arbitrator presiding. Both salary rates and comparable agencies to be used for survey bench marking were at issue. DISCUSSION On June 19, 2000, the neutral arbitrator issued his award by selecting the final offers of the City on both issues. A copy of the award is attached. Pursuant to the award, effective with pay period including July 1, 1999, a five percent increase to all represented classifications was awarded. In addition, the following list of comparable survey benchmarking agencies was identified as most appropriate. CMR:327:00 Page 1 of 2 Alameda Fire Department Berkeley Fire Department Fremont Fire Department Hayward Fire Department Livermore/Pleasanton Fire Department Menlo Park Fire Protection District Milpitas Fire Department. Mountain View Fire Department Redwood City Fire Department San Jose Fire Department San Mateo Fire Department San Ramon Valley Fire Protection District Santa Clara County Fire Protection District Santa Clara Fire Department South San Francisco Fire Department RESOURCE IMPACT The total cost of the third year of the agreement is $544,721, and there are sufficient funds in the 2000-01 Adopted Budget to cover the expense. POLICY IMPLICATIONS This request is consistent with existing City policies. ENVIRONMENTAL REVIEW This is not a project under the California Environmental Quality Act (CEQA). ATTACHMENTS 1. Resolution Amending Section 1501 of the Merit System Rules and Regulations. 2. Section 7 of the Memorandum of Agreement 3. Resolution Adopting a Compensation Plan for Fire Personnel 4. Arbitration Award PREPARED BY: Susan Ryerson,,l~flanager of Compensation & Employee Relations DEPARTMENT HEAD: f /)~" ~ ~,.~A. Y C. ROUNDS Director of Human Resources CITY MANAGER AP EMILY Assistant City Manager CMR:327:00 Page 2 of 2 RESOLUTION NO. RESOLUTION OF THE COUNCIL OF THE CITY OF PALO ALTO AMENDING SECTION 1501 OF THE MERIT SYSTEM RULES AND REGULATIONS REGARDING THE MEMORANDUM OF AGREEMENT BETWEEN THE CITY OF PALO ALTO AND LOCAL 1319,INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS NOW, THEREFORE, the Council of the City of Palo Alto does RESOLVE as follows: SECTION I. Section 1501 of the Merit System Rules and Regulations is hereby amended to read as follows: ~’1501. Memorandum of agreement incorporated by reference. That certain Memorandum of agreement by and between the City of Palo Alto and Local 1319, International Association of Fire Fighters, consisting of Preamble and Article I through XLIII, being 26 pages in length, as amended, effective retroactively to July i, 2000, for a term commencing July I, 1997, and expiring June 30, 2000, is hereby incorporated into these Merit System Rules and Regulations by reference as though fully set forth herein. Said memorandum shall apply to all employees in classifications represented by said Local 1319, International Association of Fire Fighters, except where specifically provided otherwise herein. In the case of conflict with this chapter and any other provisions of the Merit System Rules and Regulations, this chapter will prevail over such other provisions as to employees represented by said Local 1319, International Association of Fire Fighters." SECTION 2. The changes provided for in this resolution shall not affect any right established or accrued, or any offense or act committed, or any penalty of forfeiture incurred, or any prosecution, suit, or proceeding pending or any judgment rendered prior to the effective date of this resolution. // // 000711 cl 0032366 SECTION 3. The Council finds that this is not a project under the California Environmental Quality Act and, therefore, no environmental impact assessment is necessary. INTRODUCED AND PASSED: AYES: NOES: ABSENT: ABSTENTIONS: ATTEST:APPROVED: City Clerk APPROVED AS TO FORM: Senior Asst. City Attorney Mayor City Manager Director of Administrative Services Director of Human Resources Fire Chief 000711 cl 0032366 2 ARTICLE VII - SALARY PROVISIONS Section 1. a.Effective with the pay period including July 1, 1997, a 5% increase at the E-Step will be applied to the salary ranges of all represented classes. b.Effective with the pay period including July 1, 1998, a 3% increase at the E-Step will be applied to the salary ranges of all represented classes. RESOLUTION NO. RESOLUTION OF THE COUNCIL OF THE CITY OF PALO ALTO AMENDING THE COMPENSATION PLAN FOR FIRE DEPARTMENT PERSONNEL (IAFF)ADOPTED BY RESOLUTION NO. 7730 AND AMENDED BY RESOLUTION NOS. 7772, 7839, 7901 AND 7964 TO CHANGE CERTAIN SALARIES AND CLASSIFICATIONS The Council of the City of Palo Alto does hereby RESOLVE as follows: SECTION I. Pursuant to the provisions of Section 12 of Article III of the Charter of the City of Palo Alto, the Compensation Plan adopted by Resolution No. 7730 and amended by Resolution Nos. 7772, 7839, 7901 and 7964 is hereby amended to change certain salaries and classifications, as set forth in Exhibit "A", attached hereto and incorporated herein by reference. SECTION 2. The Director of Administratize Services is hereby authorized to implement the amended classifications and salaries as described in Section I. SECTION 3. The Council finds that this is not a project under the California Environmental Quality Act and, therefore, no environmental impact assessment is necessary. INTRODUCED AND PASSED: AYES: NOES: ABSENT: ABSTENTIONS: ATTEST:APPROVED: City Clerk Mayor APPROVED AS TO FORM:City Manager Senior Asst. City Attorney Director of Administrative Services Director of Human Resources 00071 ! cl 0032365 CiTY OF PALO ALTO COMPENSATION PLAN Fire Employees EFFECTIVE: AMENDED: Pay period including July 1, 1997 Through June 30, 2000 July 1, 1998 March 8, 1999 October 25, 1999 ~uly~l,!, 1999 Exhibit "A" COMPENSATION PLAN FOR THE CITY OF PALO ALTO Fire Personnel SECTION I. SALARY A. Salary_ Range Tables Personnel covered by this plan shall receive compensation within the salary ranges set forth in the Salary Range Tables that follow Section II. The salary range for each position classification title and number is expressed in bi-weekly and/or hourly rates along with the approximate monthly and/or annual equivalent. B.Establishment of Salary The City Manager is authorized to make appointments to or advancements within the prescribed ranges upon evaluation of employee qualification and performance. Merit advancements from the first salary step to the second salary step shall be granted at six-month intervals and between the second and subsequent steps at one-year intervals if the affected employee has demonstrated continued improvement and efficient and effective service. For the purpose of determining step time requirements, time will commence on the first day of the month coinciding with or following entrance onto a salary step. Step increases shall be effective on the first day of the payroll period in which the time requirements have been met. The City Manager, in recognition of unusual circumstances or extraordinary performance, may authorize special merit advancement. In the event that a downward adjustment of a salary range indicates a reduction in the established salary of an individual employee, the City Manager may, if circumstances warrant, continue the salary for such employee in an amount in excess of the revised range maximum for a reasonable period of time. Such interim salary rates shall be def’med as "Y-rates". Additionally, paramedics with six or more years of Palo Alto paramedic service ’will be Y-rated upon cessation of assignment. 1.Effective with the pay period beginning July 1, 1997, a 5 % increase at the 5th-Step will be applied to the salary ranges of all represented classes except Hazardous Materials Investigator. 2.Effective with the pay period including July 1, 1998, a 3 % increase at the 5th-Step will be applied to the salary ranges of all represented classes. 3.Effective ~ith-t!ie:pay-~ige~iod~]ne!~d~Cg~J~at~ i~ i999, a5% increase atthe 5t~ step will be applied to t.li_e~s _a!ary i~anges 0f :aili~repreSentedl ~lasses.- ........... m nZO..Z 000000000000000000000000 000000000000000000000000 00000000 O00 O00000 O000000~ ~ ~ 0 ~ ~ ~ 0 ~ ~ ~ ~ O~ ~ ~ 0 ~ O~ ~ ~ ~ O0 O0 O0000 O0 O0 O000 O0 O00 O0 O0 O00 O00000 O00000 O0000 O0 Z I- ZuJn 0o 0 <W Z0Z"0 0 n I---O.uJ UJ ~ w o_< ~o.<oo< WWWW O_~ ,, ,, ,, ,, ,, o5~ INTEREST ARBITRATION PROCEEDINGS PURSUANT TO CITY OF PALO ALTO CttARTER In the Matter of the Interest Arbitration ) ) between )" ) CITY OF PALO ALTO ) )and ) ) PALO ALTO FIRE FIGI-rFERS ASSOCIATION,) IAFF LOCAL 1319 ) ) California State Mediation and Conciliation Service ) Case Number 99-1-131) ) ) ISSUES: Impasse: Salary Increase and Comparison Agencies: 1999-2000 No.utral Arhltrntnr and Chairman Philip Tamoush P. O. Box 1128 P.O. Box 54 Torrance, California 90505 Alamo, California 94507 Arhitratlnn Rnard Memhars Tony Spitaleri, Union Member Jay Rounds, City Member t:~nring~ t-t’o.1 cl February 29, March 9,10, 2000 Palo Alto, California May 3, 2000 Aw~rrt June 19, 2000 Appearances: For the Association:Alan C. Davis, Esq. Davis & Reno 22 Battery St., Suite 1000 San Francisco CA 94111-5524 For the City:Richard S. Whitmore, Esq. Whitmore, Johnson & Bolanos 2570 E. E1 Camino Real, Suite 600 Mountain View CA 94040 p.ACT~GR~T TND AND ,gT TMX~AR¥ I’31~ ~A~T,g This arbitration is conducted pursuant to the Compulsory Arbitration provisions of the City of Palo Alto Charter (Joint Exhibit 1). It deals with two issues stemming from negotiations over a salary increase for firegifhters in the city of PALO ALTO, represented by the PALO ALTO F!REFIGHTERS ASSOCIATION, IAFF LOCAL 1319. The parties negotiated a Memorandum of Agreement (JX-2), for the period of July 1, 1997 - June 30, 2000. Within the Agreement, as noted below, they included provisions for reopening negotiations to determine comparable survey agencies and salaries, effective July 1, 1999. Bargaining did occur, but without success and both matters proceeded to arbitration. A three-day hearing was conducted before the undersigned Board of Arbitration, at which time each party presented evidence and testimony bearing on the issues. The hearings were reported and transcribed.The parties submitted their written final offers on March 21, 2000. They submitted written post-hearing argument on May 3, 2000, after which the Board of Arbitration deliberated and issued the report below. The pray- appointed members of the Board have indicated their concurrence or dissent to the final Award below. R~.T .F.vANT Wp.TTTFN T.ANGT IAGF, I. The Palo-Alto City Charter, Article V., Section 4. (Impasse resolution procedures), states in relevant part: All disputes or controversies pertaining to wages, hours and terms and conditions of employment which remain unresolved after good faith negotiations.., shall be submitted to a three- member board of arbitrators upon the declaration of an impasse... At the conclusion of the arbitration hearings, the arbitration board shall direct each of the parties to submit.., a last offer of settlements on each of the issues in dispute. The arbitration board shall decide each issue by majority vote by selecting whichever last offer of settlement on that issue it finds most nearly conforms with those factors traditionally taken into consideration in the determination of wages, hours and other terms and conditions of employment of public and private employment, 2 including but not limited to changes in the average consumer price index for goods and services, the wages.., of other employees performing similar services, and the financial condition of the city and its ability to meet the cost of the award. (Note: The award is to be issued privately initially, and, failing agreement, the award becomes public and binding on the parties after ten days, or whatever mutual length of time the parties agree to). 1I. The parties Memorandum of Agreement provides, in relevant part: ARTICLE VII- SALARY PROVISIONS Section 1. c. There will be a salary only reopener to determine comparable survey agencies and salary range rates for represented classes, effective with the pay period including July 1, 1999. This reopener does not include determination of or changes to differentials such as EMT, Paramedic, or Haz Mat, or any other economic or non-economic issue. ARTICLE XLI- MISCELLANEOUS Section 3. Benchmark Agencies. During the term of this agreement, Union and Management will meet for the purpose of jointly developing a list of comparable agencies to be used for survey bench marking. The parties may elect to develop comparability criteria and retain a consultant to make recommendations regarding comparable agencies... The parties jointly negotiated Request for Proposal: Consultant Services for Salary and Fringe Benefits Study, contains the following more relevant section: C. l")e.~nri,ntinn nfWnrk Utilizing the following parameters, consultant shall provide a recommended list of comparable fire departments (survey agencies): ¯List to include a ¯Survey agencies Contra Costa. Survey agencies interface. ¯Survey agencies ¯Survey agencies ¯Survey agencies ¯Survey agencies minimum of 15 to 20 fire departments. to be within the Bay Area counties of Santa Clara, San Mateo, Alameda, and to contain a like mixture of residential/commercial/industrial/wildland-urban to be similar in type of call volume to be similar in service area size. to perform similar emergency response duties: (omitted) to perform similar fire prevention and hazardous materials duties: (omitted) ® ® Survey agencies to perform similar training/technical development duties - (omitted) Information to be gathered on each survey agency includes: size of departmental budget and population of service area. This information is for statistical purposes. IV. The Avery Report, representing the results of the consultant hired pursuant to llI above, presented the following most relevant information: Review of the survey responses received leads us to recommend that the following agencies be considered by the City and Local 1319 for compensation survey purposes: Alameda Fire Department Berkeley Fire Department Fremont Fire Department Hayward Fire Depar~.ment LivermoregPleasanton Fire Department Menlo Park Fire Protection District Milpitas Fire Department Mountain View Fire Department Redwood City Fire Department San Jose Fire Department San Mateo Fire Department San Ramon Valley Fire Protection District Santa Clara County Fire Protection District Santa Clara Fire Department South San Francisco Fire Department FINAT. CI~’q~.RS OF TI-~F. PARTIF, S The written final offers of the parties on the two items at impasse are: Union Proposals: Salary Provisions (Amend Article Vll, Section I, by adding a new subsection d, as follows) Section 1. d_P.f~e~’.tive with the. ~n~y perlnrl ine, hldin~ .Tl~ly 1, 1999, ~n R% in~.re, n.~e, zt the ~.-~te.n will be n,n,nliecl tn the ~nl~ Comparable Jurisdictions: (Amend Article Vii, Section 1., by adding a new subsection e., as follows) Section 1. Management Proposals Effective with the pay period including July 1, 1999, a 5% increase at the E-Step will be applied to the salary ranges of all represented classes. The following agencies shall be used for survey bench marking: Alameda Fire Department Berkeley Fire Department Fremont Fire Department Hayward Fire Department Livermore/Pleasanton Fire Department Menlo Park Fire Protection District Milpitas Fire Protection District Mountain View Fire Protection District P~edwood City Fire Department San Jose Fire Department San Mateo Fire Department , San Ramon Valley Fire Protection District Santa Clara County Fire Protection District Santa Clara Fire Department South San Francisco Fire Department As required by the City Charter, and after having considered all the relevant evidence and argument of the parties at the hearings and in their post-hearing briefs, the undersigned Board of Arbitration, or a majority thereof, renders the following decision: 1. Salary Range: The final offer of the City is accepted: that is, the Salary Range at the E- Step shall be increased by 5%. The increase shall be effective with the pay period including July 1, 1999, for all represented classes. Comparable Jurisdictions: The final offer of the City is accepted. The following agencies shall be used for survey bench marking: Alameda Fire Department Berkeley Fire Department Fremont Fire Department Hayward Fire Department Livermore/Pleasanton Fire Department Menlo Park Fire Protection District Milpitas Fire Protection District Mountain View Fire Protection District Redwood City Fire Departmem San Jose Fire Department San Mateo Fire Department San Ramon Valley Fire Protection District Santa Clara County Fire Protection District Santa Clara Fire Department South San Francisco Fire Department 2. The parties are directed to implement the award of the Board of Arbitration forthwith. RF~ARCINING OF TI-IF. NFI ITRAT, ARlqTTR ATOR The facts presented by the parties at the hearing dictate a selection of the City Management final offer on both issues. The Arbitration Board is compelled by legal requirements to select only from 6 the two final offers on each issue, and not to insert its own judgement.of what equityor fairness might dictate. However, in evaluating the final offers, the Board is required to, and does take into consideration, the traditional factors influencing wages, hours and conditions of employment. In this case, the most compelling reason for selecting the City’s wage proposal are that it more closely approximates the standard criteria. Reviewing Union Exhibit 17, it can be seen that July 1, 1999 increases in comparable jurisdictions are Within the 4-5% range, or less, and do not come anywhere near to the 8% offered by the Union. It must be noted that part of the Union’s rationale for its 8% offer has to do with cost of housing in the nearby area, and the enunciated City Council policy statement, to wit: "It is the policy of the City Council of the City of Palo Alto to encourage City" emergency workers to live within or near Palo Alto. The City will use all reasonably available means to pravid~, or no.gr~ti~ta ine.entiva~, preferane, a~, ho.no.fit~, er~nditir~n~ and requlremant.~ (neutral arbitrators underlining) in order to encourage local residency." (Union Exhibit 3) The City policy statement goes on to direct the City manager to look into a housing opportunity program. All of this, most importantly the underlined portions of the City statement, take this issue out of consideration in this instant impasse. The negotiated language oi’the parties, above quoted, specifically excludes consideration of other ’economic or non-economic’ issues, in deciding the current issues at impasse. The housing issue.clearly is one to be determined by the parties in separate proceedings. While the Union makes a strong argument for consideration of’total compensation’ in adjusting salaries, it is axiomatic that ’total compensation’ includes items excluded from consideration here by the parties themselves. Their negotiated statement is very clear that other ’economic and non- economic’ benefits are not to be considered in this impasse situation. The CPI generally increased 4.1% during the period in question (UX-18). While apparently on the increase, CPI clearly does not justify an 8% salary increase. The City’s proposal does exceed the only CPI figures offered into evidence here. A touchstone of salary setting, especially in the arbitration stage, is comparability. Even though the parties are not required to look at the comparable agencies selected here below, it is instructive to review and note that the 5% increase will increase Palo Alto firefighters’ monthly wage rate to $5340. Assuming the record is correct, and that Union Exhibits 8-10 represent actual July 1, 1999, post- negotiations salaries (see Transcript pages 304 ft.), then the Palo Alto firefighters will move to about the average of salaries among those agencies, rather than being much closer to the bottom of the 15/16 comparable agencies. Regarding the comparable survey agencies, recognizing that the parties are not obligated to utilize the.criteria enunciated in their joint RFP, it nonetheless is incumbent on this Board of Arbitration to rely on them in light of this impasse. The parties spent time, effort and funds to have produced for their potential use, a useful set of data. The Avery Report lays out the only reasonable basis for selecting certain agencies. The parties wanted a list of’ 15-20’ agencies. The Report met that and other relevant criteria. This at least gives the parties a starting point from which to negotiate both wages and comparable agencies in the future. The Union’s final offer list is much too narrow. It most significantly includes the City of Sunnyvale, which, in the ~ajority of the Board’s opinion, cannot and should not be used as comparable.The job of a combined (at least in training and assumed competence) pbsition of firefighter/police officer, cannot be compared adequately. To do so will be to skew the comparisons drastically. The Avery Report recommendations provide an adequate starting (or ending) point for future negotiations, moreso than the more limiting Union offers. Finally, there is a rationale to selecting the comparison agencies management proposal which most nearly compares with the appropriate salary increase of 5%r. Even though the parties are not committed to using the comparable agencies list, nor is the Board obligated to select both final offers from one party, there is benefit to using the management list, at least at the beginning. The City’s proposed list comports with its 5% proposed increase, certainly more than does the Union’s proposed list compared to its 8% proposal. In light of the above discussion, and other factors not necessarily enumerated here, and after a complete review of the evidence and argument presented by the parties, the undersigned Board’s decision was to accept the City’s final offers on each issue. Such will be the award below. 9 The ~mal offers on each issue are adopted ~d ordered to be implemented as follows, ~ective ~th the pay period including July 1~ 1999~ a 5% increase at the ~-Step ~ be applied to the salary ranges of all represented classes. /s/Tnny ,qpltnleri 6/1 ~/00 .lny Rouncl~~ Signature Date Signature Date Concur X Dissent Tony Spitaleri, Arbitration Board Member X Concur Dissent Jay Rounds, Arbitration Board Member The following agencies shall be used for survey bench marking: Alameda Fire Department Berkeley Fire Department Fremont Fire Department Hayward Fire Department Livermore/Pl~asanton Fire Department Menlo Park Fire Protection District Milpitas Fire Protection District Mountain View Fire Protection District Redwood City Fire Department San Jose Fire Department San Mateo Fire Department San Ramon Valley Fire Protection District Santa Clara County Fire Protection District Santa Clara Fire Department South San Francisco Fire Department /s/~6za_92~_ /s/Ja~v_3~3m~ Signature Date Signature Date Concur X Dissent Tony Spitaleri, Arbitration Board Member X Concur Dissent Jay Rounds, Arbitration Board Member l0 10 P~espect~lly Submitted, Philip Tamoush Impartial Chairman, Board of Arbitration Torrance, California June 19, 2000 June,, 2000 Dispute Resolution Services (Arbitrator-Mediator-Factfinder) Post Office Box 1128 Torrance, California 90505 (800) 747-9245 (Voice) 378-6782 (Fax) E-Maih philiptamoush@juno.com (Principal Office)JUL 10 2000 NO,fAN RESOURcOEPAF~T~IENTE.3 TO:Richard Whitmore, Esq. Alan C. Davis, Esq, Tgny Spitaleri ~J~ay Rounds RE: Union Arbitration Board Member Dissent: INTEREST ARBITRATION: City of Palo Alto/Palo Alto Fire Fighters Association, Local 1319 (CSMCS Case No. 99-1-131) Dear Counsel and Members of the Arbitration Board: I received a copy of Mr. Spitaleri’s dissent in the above matter. I am assuming that all the others involved in this case have also received a copy. It should be attached to any public copy of the Award, as part of the Award, which I issued in the case. It is important to note that neither partisan member of the Arbitration Board requested telephonic discussion or an executive session to discuss the final rough draft of my discussion and award, contrary to Mr. Spitaleri’s dissenting indication. Apparently, the parties did not change the award as I originally issued it, so I am assuming that the document, if and when issued by you, will be the same as my original, along with Tony’ s dissenting opinion. I am sorry that the parties apparently were not able to spend the ’privacy’ time working on the document and attempting to come to agreement. Obviously, Mr. Spitaleri’s dissenting opinion is merely another argument for adopting the Union final offers. I won’t and shouldn’t take the time and effort to contradict themany errors or misstatements of fact and opinion in his dissent. Final offer issue-by-issue arbitration is one that leaves little discretion in the ability of the neutral chair and the board of arbitration to fashion a more suitable resolution. Thus, the Board in this case was left with having to select from two offers, neither of which was ideal. Hopefully, since the award in this case does become final and binding, the parties can use the negotiating time available in the future to ’fine tune’ the list of comparable agencies and come up with some acceptable way to set salaries other than the usual ’give and take’ of hard bargaining. Sincerely, Phili Tamoush DISSENT OF ANTHONY SPITALERI, ’ARBITRATION BOARD MEMBER For the reasons expressed below, I must vigorously dissent to the decision rendered by the Chairman of the Arbitration Panel. For the twenty-two years that Article V of the Palo Alto City Charter has been utilized as the dispute resolving mechanism for wage and benefit disputes for fire fighters, we have never before been faced with an arbitration award that fails to analyze and apply the requisite criteria of the City Charter. Sadly, that day has now arrived. As I explain below, Chairman Tamoush, rather than review and apply the evidence, much if it overwhelming and uncontroverted, has elected instead to apply his own brand of industrial justice. Accordingly, the arbitration award is totally unacceptable. In his "Background And Summary Of Facts", Chairman Tamoush briefly summarizes the fact that the City and the Union conducted negotiations, came to an impasse, reached impasse, proceeded to a three day arbitration hearing, submitted their Final Offers and then submitted post-hearing briefs to the Arbitration Panel. The Chairman then asserts that the Board "deliberated" and issued a report. In his "Background and Summary of Facts", the Chairman fails to review any of the evidence presented or the arguments presented by either party. The Members of the Arbitration Board have not even met for the purpose of deliberating, let alone deliberated, as asserted by the Chairman. The Chairman then proceeds to provide an abbreviated version of the Palo Alto City Charter and two provisions of the existing contract between the City and the Union, followed by a reference to the Request for Proposal: Consultant Services for Salary and Fringe Benefits Study and the subsequent "Avery Report", implying contrary to all of the evidence that the Avery Report that resulted from the "Request for Proposal" was agreed to by the Parties. The Chairman then correctly restates the Final Offers submitted by the parties. Following the paragraph entitled "Decision Of The Arbitrator", the Chairman then begins his analysis under the heading of "Reasoning Of The NeUtral Arbitrator", correctly noting that the Arbitration Board is compelled by legal requirements to select only from the two final offers; that the Arbitration Board cannot insert its own judgment of what equity or fairness might dictate; and that it must [pursuant to Charter requirements] take into consideration the "traditional factors influencing wages, hours and conditions of employment."1 The Chairman then immediately concludes that the City’s Final Offer on salaries meets the Charter criteria without explaining how the Final Offer meets the criteria. The Chairman’s initial analysis focuses on one exhibit presented by the Union, Union Exhibit 17, arguing that the exhibit displays salary increases in "comparable jurisdictions’ on July 1, 1999, of 4-5%. In fact, Exhibit 17, which was prepared by Union The criteria set forth in Article V, Section 4 are as follows: "The arbitration board shall decide each issue by majority vote by selecting whichever last offer of settlement on that issue it finds most nearly conforms with those factors traditionally taken into consideration in the determination of wages, hours, and other terms and conditions of public and private employment, including, but not limited to, changes in the average consumer price index for goods and services, the wages, hours, and terms and conditions of employment of other employees performing similar services, and the financial condition of the city and its ability to meet the cost of the award." Consultant Ken Akins,2 displays jurisdictions that the Chairman later concludes are ~’not comparable", including Sunn~ale. Two of the neighboring jurisdictions had increases in excess of 5% for 1999,3 another exceeded 6%,4 and a number of others are still in negotiations.5 Even more important, the Charter requirements provide for a comparison of "...wages, hours, and terms and conditions of employment of other employees performing similar services..." (See footnote 1, above) which the Chairman fails to review in his analysis of Union Exhibit 17, but which Mr. Akins does review. Mr. Akins presented exhibits that show that Palo Alto firefighters trail the average of their counter.parts by percentages that vary between Mr. Akins’ comparable jurisdictions of 7.85% and Mr. Avery’s jurisdictions by a larger percentage of 8.32%.6 Palo Alto’s Fire Engineers trail the average of their, counterparts by 7.08% in Mr. Akins’ jurisdictions and 9.80% in Mr. Avery’s jurisdictions.7 Palo Alto’s Fire Captains trail the aver.age of their counterparts by 7.11% in Mr. Akins’ jurisdictions and by 9.52% in Mr. Avery’s jurisdictions.8 In one his most serious errors, Chairman Tamoush seeks to exclude the total 2 Akins explained that Union Exhibit 17 was a compilation of Cities from the Avery Report and Cities that Mr. Akins believed were comparable to Palo Alto. 3 Menlo Park and Mountain View. 4 Alameda 5 Fremont, Santa Clam, Sunnyvale, among others. See testimony of Mr. Akins, TR 331-332. 8 See Union Exhibits 8 and 9. 7 See Union Exhibits 10 and 11. ~See Union Exhibits 12 and 13. -3- compensation analysis provided by Mr. Akins in the exhibits cited above by claiming that the parties "agreed" that "total .compensation" was not to be "considered" in the 1999 re-opener. None of the evidence by eithe____[r party supports such an outlandish conclusion. The language contained in the salary re-opener declares that the parties must determine salary rate changes and determine, comparable agencies and then goes on to prohibit the parties from determining changes in differentials such as EMT, Paramedic, Has Mat and other economic or non-economic benefits. The contract language does no___~t declare that total compensation of fire fighters, fire engineers and fire captains cannot be evaluated and considered for the purpose of determining an appropriate salary increase. City Labor Relations Director Jay Rounds conceded that other cities utilized by the City in its own comparability, study used measurements other than salary in determining how Palo Alto’s fire fighting classifications compared to jurisdictions that the City believed were comparable. Q. [Mr. Davis] In previous proceedings, Mr. rounds, when you have looked at the subject of salary, you, too, have looked at items that are salary-related such as PERS pick-up, salary and PERS, haven’t you? A.[Mr. Rounds] PERS pick-up is looked at because - - - Q.Is the answer yes or no? A.Yes Q. City Exhibit 20, you show salary for 1987, maximum salary, PERS That’s what youpick-up, you measure that and give it to the union. testified to in these proceedings, isn’t that correct? A. That is correct. " Q. 1993, you provide a document to the union, maximum salary, PERS pick-up, salary with pick-up, page 2 of City 20, isn’t that right? -4- Q. 1994, the same, salary, maximum salary, salary pick-up. You include items, isn’t that right? A. 1 included the PERS pick-up. Q. And in 1997, you did it again by including maximum salaries as you measure them, PERS pick-up and salary with PERS pick-up, isn’t that right? A. In 1997, that is correct. Q. And now let’s take a look at an item that you have identified as the last page of your exhibit [for 1999], City Exhibit 20, in reference to Berkeley, is that number salary and something else? A. I don’t know.. (TR 561-562.) In fact, in the City’s own exhibit, City Exhibit 20 (which the City claimed was written by one of the Union officers), the City did include longevity pay as part of Berkeley fire fighter salaries. Thus, to exclude total compensation as a measurement of comparability as the Chairman has done, flies in the face of clear contract language, the history of negotiations between the parties and the language of the Palo Alto City Charter. The Chairman’s use of his own brand of industrial justice in the face of all the evidence is simply not allowed for in these proceedings. ¯ For the same reasons, the Chairman’s exclusion of overwhelming, unrebutted testimony on the cost of housing and its impact on Palo Alto fire fighters is impermissible. Again, the Union has not asked that "incentives, preferences, benefits, conditions and requirements" of employment be changed in these proceedings. The -5- Union has asked, however., that the arbitration panel consider the City Council Policy Statement rendered on November 22, 1999 (Union Exhibit 3) in determining what salary increase would be appropriate, partly in consideration of the cost of housing. As discussed above, the parties did no.__~t exclude consideration of relevant criteria such as housing costs. They did exclude in their re-opener any determination of other benefits, such as incentives, preferences and other conditions of employment. The Chairman may not go beyond the four corner.s of the agreement between the parties to exclude from consideration criteria that is otherwise permissible under the City of Palo Alto Charter. The Chairman underlines his error by concluding on page 8 of his arbitration award that a 5% salary increase will move the Palo Alto fire fighters to "...about the average..." of the Agencies identified in Union Exhibits 8-10. Union Exhibits 8 through 10, of course, are the same exhibits discussed above that address the subject of total compensation. The Chairman fails to explain how a 5% can bring Palo Alto’s fire fighters to "about the average" when the exhibits themselves show that the fire fighters are between 7.08% and 8.32% behind the aver.age of those jurisdictions based on a total compensation analysis. Curiously, the jurisdictions cited by the Chairman are also not the same as the jurisdictions cited by the City of Palo Alto in it._~s Final Offer. Moreover, how is it that the Chairman concluded that Palo Alto’s fire fighters should be at the "average" of Exhibits 8, 9 and 10? Where is the evidence that Palo Alto’s fire fighters should be at the average of any group of cities analyzed? The Chairman fails to explain his conclusion, which is not a conclusion that has even been argued by the City in its own brief to the panel of arbitrators. Why should Palo Alto’s fire fighters’ salaries be "average"? All of the unclisputed evidence presented in these Proceedings shows that the work load and level of responsibility of fire. fighters in Palo Alto exceeds Palo Alto’s counterparts, even without considering the cost of housing in Palo Alto. Battalion Chief Bruce Martin, after an in- depth review of the duties and responsibilities of Palo Alto fire fighters, provided the following unrebutted testimony: Q. [By Mr. Davis] Lastly, I asked you if you were able to compare the duties and responsibilities of Palo alto firefighters, Stanford firefighters and the surrounding communities, and that would include Mountain View, the Menlo Park District that you explained that covers several different jurisdictions, Atherton, East Palo Alto as well as Menlo Park, the Woodside Fire District that you talked about, the Los Altos and Los Altos Hills area that’s covered by.the Santa Clara County Fire Department and then Sunnyvale, which is directly to the south of Mountain View.. Can you compare the responsibilities of the fire fighters here to the firefighters of those jurisdictions? A. [Mr. Martin] Certainly. There’s a couple of immediate differences between our fire department and our neighbors’ fire departments. First, and probably oldest is the fact we run a transport paramedic system. We have had that in place for close to twenty-five years. None of our neighbors at this time have staffed a fire department transport ambulance system like that. Menlo Park has made movements towards it and our neighbors have all started to move to engine company paramedics, but the transport system that we have is like nothing our neighbors have. The second big difference is the wildiand interface hazardous fire area. The towns immediately to the north and south of us share many characteristics of Palo Alto in between the Bayshore Freeway and Highway 280, but as soon as you get west of 280, that rural character that we have is not shared by our neighbor fire departments so the reparations that we need to have to address wildland interface fires far exceeds the preparations our neighbors need to have. To a certain extent, our bayland area, especially when you factor in the airport issue, is a difference that the Palo Alto Fire Department has to be able to address that its neighbors don’t. While Menlo Park and Mountain View both have baylands, they don’t have the additional source of emergency incidents at the airport that we do. Woodside Fire District is a semi-rural fire district. I mean while it’s a wealthy area, their population density is much lower than ours. They do have the interface issue, but no industry to speak of, nor the large commercial areas to speak of. Sunnyvale is more akin to Mountain View than it is to Palo Alto. It has a residential area, has an industrial area, no baylands, no wildland interface, no transport origin-based paramedic system so in that sense, in those senses we’re different. Q. Then north of Menlo Park, a district that you worked for, Redwood City, how would you compare Palo Alto to it? A. Once again, we run the transport ambulance system that they don’t. They just started an engine paramedic system. They did run-a water rescue team until recently so in that way we’re similar. Their industrial infrastructure is not nearly what Palo Alto’s is. The. wildland area that they cover is not nearly what Palo Alto’s is. So once again, both in terms of job responsibility and size of jurisdiction and amount of potential problems, ours is much greater. The final difference betwe, en all those cities is Stanford University campus. I mean that campus just presents so many unique one-of-a-kind installations, experiments, buildings, possessions that our neighbors just can’t match. Q Just south of Sunnyvale, Santa Clara City, how would you compare that to --- A. Once again, they have a large industrial section so in that regard they have the same that we have, and probably a greater number of buildings, same types of installations, same residential area, no wildland to speak of, no baylands to speak of, no paramedic transport. That’s about it. Q. Nothing further. (TR 258-261 .) The unrebutted evidence supported a conclusion that Palo Alto’s fire fighters should be first in salary, not "at the average" as concluded by the Chairman. There was simply no evidence presented that Palo Alto’s fire fighters were "average" or that their salaries should be "average". And, contrary to the Chairman’s assertion, It is also not -8- "axiomatic" nor even permissible that total compensation criteria can be excluded from consideration in measuring salary comparability. Thus, the Chairman’s brand of industrial justice is not consistent with the Palo Alto City Charter requirements and cannot be sustained. Finally, it should be noted that in the Chairman’s reference to Union Exhibit 18 and the changes in consumer price index, he states that the City’s Final Offer exceeds the 4.1% CPI change between June 1998 and June 1999. That’s true. But, if it is true, then why is it that the City Final Offer proposes more than the change in the CPI index? Could it be that the City has also recognized that other criteria exists for the p.urposes of determining salary in a wage re-opener? Of course, the answer is yes. The Chairman, however, fails to analyze any of the other criteria as they apply to the evidence presented. Having gone beyond the record evidence on this criteria alone, the arbitration award cannot be sustained. In two brief paragraphs the Chairman purports to analyze the remaining issue in the re-opener between the parties, a list of comparable agencies. He, at first, recognizes that the arbitration panel is not obligated to utilize criteria that were discussed in the RFP that resulted in the Avery contract. He then goes on to discuss the "time, effort and funds" used to produce the data. Then, without any analysis excepting a reference to the City of Sunnyvale, the Chairman concludes that the Avery Report is "the only reasonable basis for selecting certain agencies." The Avery Report, of course, also fails to provi.de an analysis of the agencies selected. Mr. Avery in his testimony failed to provide any rationale and, in some instances, he was so confused as to the agencies named that he could not identify where the agencies were located or which cities were included in the named agencies. The South County Fire Protection Agency includes San Carlos and Belmont, but you wouldn’t know it from Mr. Avery’s testimony. Vallejo is in Solano County, but Mr. Avery did not know that either. He had nothing to say about Sunnyvale, although he excluded it from his list. So, why is it that the Chairman excluded Sunnyvale? The Chairman declared that "...the job of a combined (at least in training and assumed competence) position of firefighter/police officer, cannot be compared adequately." "To do so will be to skew the comparisons drastically...", he declares. Where is the evidence for such a provocative statement? The Chairman doesn’t tell us. Yet, the evidence is totally to the contrary. I have already reviewed the testimony of Battalion Chief Martin, who believes that the duties and responsibilities of employees assigned as fire employees do not reach the level of Palo Alto’s fire fighters. Sunnyvale is "more akin" to Mountain View, which only has fire fighters in their Fire Department, than it is to Palo Alto, Martin declares. Martin testified that Palo Alto’s fire fighters exceed the level of responsibility of Mountain View fire fighters. Battalion Chief Martin was not alone in his conclusion. Fire Fighter Catherine Capriles elaborated as follows: Q [Mr. Davis] When you say do the exact same job, can you explain that? For example, they work 24-hour shifts as firefighters? A. [Ms. Capriles] Yes, and they sleep at the station, they have to stay together as a crew, ride on the engine, they respond to medical calls, they respond to fires. They have the same kind of training requirements that we have. They also give demonstrations, they do everything just like we do pretty much,, in general Q. Cross-training between various departments? -10. Q. Explain thaL A. We do joint fire academies within Santa Clara County, and as a matter of fact, Sunnyvale has one, couple of the most recent joint firefighter academies that we have participated in and we work with them a lot when it comes to training. Not only a joint fire academy, which is training of brand new firefighters both for them and for us, and I believe Mountain View and Milpitas have also. been involved in those and also in just offering training classes firefighters who are already within the department. They do a lot of rescue training and a lot of work with Hurst tools and such to show people how to use rescue equipment. They do it through the Sunnyvale training Academy which is a Fire Department function so we deal with them a lot on a Fire Department level Q. [NEUTRAL ARBITRATOR]:. Before you tum to another’s subject, can she clarify for me how they perform police functions? I didn’t understand what you mean. A [THE WITNESS]: They are swom police officers as well as firefighters and they have a rotation in Sunnyvale. They serve a certain amount of time in the fire department and certain amount of time in patrol Q [NEUTRAL ARBITRATOR]: Same individuals? A. [-I’HE WITNESS]: Same individuals, yes. Q.[NEUTRAL ARBITRA TOR]: When they go to the police function, what work schedule do they have? A. [THE WITNESS]: You know, I don’t know. Q. [NEUTRAL ARBITRATOR]: Is it 24? A. [THE WITNESS]: No, not 24. When they become police officers, they are more comparable to the police department. When they are a firefighter, they are more comparable to a firefighter. Q [NEUTRAL ARBITRATOR]: Thank you. Q [MR. DAVIS]: Then after a period of years where that cross-training has occurred, are individuals assigned semi-permanently to firefighter services? A. Yes, usually for two to three years at a time. Sometimes longer. They are supposed to have a rotation schedule but it doesn’t work that way. Usually when you are.there for a long period of time, you can choose one division or another and they tend to stay with that division depending on what their preference is. Q. The division, meaning fire or police? .A. Yes. (TR 137-179.) So, then, where is the record evidence to support any conclusion that Sunnyvale employees assigned as fire fighters are not comparable to Palo Alto’s fire fighters simply because they have "trained" or are "competent" as police officers? The City doesn’t offer any. Does such an assertion by the Chairman then extend to members of the Fire Department who have first worked as police officers and then applied for and been hired by a Fire Department? How should we recognize fire fighters who then become police officers? How should we compensate fire fighters or police officers .who study and qualify in other professions?9 The City doesn’t tell us. Neither does the Chairman. The Chairman concludes his "Reasoning" portion of the Award by puzzling commentary concerning the utilization of the City’s list "...at least at the beginning." At the beginning of what? The Chairman doesn’t tell us. He also doesn’t tell us how it is to be used. But, he then reaches the astonishing conclusion that because the City’s list 9 Heaven forbid, but I happen to know that many fire fighters and police officers have also become lawyers. -12- of comparable agencies more comports with the City’s salary Final Offer of 5%, that the City’s list of comparable cities should be used. Why? Again, he doesn’t tell us. The undisputed evidence, however, is that the reverse was to occur. The list of comparable agencies was intended to be used in some fashion for the purpose of developing wage and benefit increases. Which, then, is the cart and which, is the horse? Again, the Chairman doesn’t tell us. For all the reasons stated, the Arbitration Award signed by the Chairman and the Board Member for the City is not founded on record evidence. It should not be implemented, and if it implemented, the arbitration award will be contrary to the criteria set forth in the Palo Alto City Charter and contrary to the Agreement between the parties that provided for a re-opener on salaries and for the establishment of a list of comparable agencies. -!3-