Loading...
BRIEF OF CITY OF CLEARWATER AND CERTIFICATE OF SERVICE TO TERRY FURNELL OF DONAHEY & FURNELL ., -* I I STATE OF FLORIDA PUBLIC ENPLOYEES REL-\TIONS CO~lNISSION CLEARHATER FIRE FIGHTERS ASSN. NO. 1158, and Petitioner, CASE NO. 8H-SM-75-90 CITY OF CLEARHATER, Public Employer. / ~ BRIEF OF CITY OF CLEARWATER ) ~ .' .... r I TABLE OF CO~TENTS TOPIC Introduction ............. . . . . . Non Economic Demands ................ . . 1. No Strike Clause . . . . . . . .,' 2. Representatives of Parties . . . . . . 8. Pension. . . . . . . . . . . . . . . . 23. Lead Pay . . . . . . . . . . . .. .... 19. Filing Vacancies . . . . . .. ....... 17. Acting Pay . .. ..... . . . . . 29. Binding on Successor Clause . . . . . . . 30. Retroactivity . . . . . . . . . . . . 10. Work Rules ..... ... . . . 11. Work Schedules . . . . . . . . . . . . . 16. Nanning of Equipment . .. ...... 13. Prevailing Rights . . . . . . . . . . 'Direct Compensation Demands . . . . . . . 3. 4. 6. s. I\' ag e s .. . . . . . .. .... Equali ty Provision . . . .. ... Cost of Living Adjustment . . . Arson Investigation . . . Traditional Fringe Benefits PAGE Nut.mER 1 6 6 7 7 8 8 8 10 11 11 12 12 .14 IS 15 15 19 20 20 7 . Holidays. . . . . .. . . . . . . . . . . . 2 0 9. Vacations . . . . . . . . .. 20 18. Hospital, Dental Insurance ........ 20 15. Leave of Absence . . . . .. ....... 20 27. Sick Leave Incentive Award. . . . . . . . .. 20 29. Accrued Benefits on Retirement. . .. 20 14. Sickness or Injuries on Duty. . . . .. 20 Demand for Extraordinary Form of Compensation . 24. 25. 26. Mileage Allowance . . . . . . . . . Cleaning . . . .. ......... Damage to Personal Property Tt:lel)11Ull~ Pay . . . . . p~v for Npan~;~~;nnc ~ -~ --- -'-0- ------.....- Call - i n Pay . . . . . . . . . . . . . Pay for Tuition . . . . . ." "-.1.. 2? _ 12. 20. 22 22 22 22 22 "I" LL 22 Conclusion ')7 . . . . . ~..J . . . .. . . . . . . . . 23 ( I INDEX OF IMPASSE ITEMS NUMBER TOPIC 1 No Strike. . . . . . . . . 2 Representatives of Parties. 3 Wages . .. . . Equality Provision. 4 5 6 Arson Investigator Cost of l.iving Adjustment. . 7 8 Holidays . . . . . . Pension . . . . . . . 9 Vacation 10. Work Rules 11 12 Work Schedules Call-inP<:1Y, liold-over Pay 13 Prevailing Rights. . . 14 15 16 Sickness or Injuries on Duty Leaves of Absence . . . Manning of Equipment. 17 Actinz Pay 18 Hospital, Dental Insurance 19 Filling Vacancies "0 ~v Pay for 'rui tiOli 21 Telephones 22 Pay for Negotiations 23 Lead Pay ... . . . . . . . . . 24 Mileage Allowance . 7" r'~",T"\';Y"lrY PAGE NU~IBER 6 ". 7 15 15 20 19 20. 7 20 11 12 22 14 20 20 12 .8 20 s ..... /...;;J 22 22 8 22 .,.., I I r In October, 1974, the parties agreed to a thirty-eight (38) page collective bargaining contract. This proceeding was commenced for the purpose of securing the Special !.laster' s assistance in re- solving the impasse involving almost thirty (30) union-requested changes to such contract. In this brief the City shall firs~ discuss the environment which the union wants to radically alter. The City shall proceed to set forth the process which led to this point, follmved by the City's view of the methods the Special Has ter should utilize in assisting the parties to reach a fair solution to the impasse items. From here the City will discuss the union demands under four (4) categories: 1) non-economic demands; 2) direct com- pensation demands; 3) traditional fringe benefit demands, and; 4) demands for extraordinary forms of compensation. When a union requests changes in its relationship with an employer, it is essential to first understand the atmosphere from which a departure is desired. The approxir,late one hundred and thirty (130) employees in the bargaining unit, uithout any changes from the present, would still be considered among the fortunate by the vast majority of American people. The firefighters, inspectors and lieutenants are individuals \olho secured employment "lithout the necessity of a college degree or even technical training beyond high school. A person eighteen (18) years of age could now join the ranks and have a starting salary in excess of n),ne thousand ($9,000.00) dollars per year. For several years he secures wage increases styled as "merit" but what are in fact "automatie" progression steps of approximately live (~) per cent. At the point at which the contem- poraries of the man who went on to college begin earn1ng a livelihood, the firefighter is earning around $11,000.00 PCi..- ye'ar.: While the pay is good, the firefighter's compen::.atl.on goes beyond just what is in the paycheck. His employer urovidE!s :i. nf"n~; nn Uh",...-",'hn I I cover hospital and doctor bills. His work clothes are provided by the employer. The salary and fringe benefits do indeed place the man in an envied position in our society. An additional segment of the atmosphere is the work schedule available to firefighters. With the shif~ arrangement of "a twenty- four (24) hour tour of duty, the average firefighter works only one hundred fifteen (115) of the three hundred sixty-five (365) days of each year. As Lt. Clements testified, the man's time betHeen 8:00 A.M. and 5:00 P.M. is taken up by duty. After 5:00 P.M. the manls time is, in the words of the witness, "pretty much his own", during which the man does as he pleases while awaiting a possible alarm. That night he sleeps in comfortable quarters. This work schedule allows the men to enJoy a life style not available to others in our society. If the man is content with his salary, the free time the schedule allows can be devoted to hobbies or family. Persons working the standard five (5) day week arrive home around 6:00 P.H. and retire for the evening around 11:00 P.H.; thus, the firefighter, on his duty days, is deprived of this five (5) hOurs of family time. In exchange, however, he h~s two (2) full days off per week that the average person does not. For the more aggressive person, the Fire Department work schedule provides the opportunity to engage in other occupations or professions. Having a good salary guaranteed, the man can earn additional income from his construction trade, his insurance business, or real estate clientele. Another advantage the man enJoys is job security. Unlike in private industry, the continued employment of a Clearwater firefighter borders on being "guaranteed". It is difficult to conceive of a circumstance ~vhere the City would lay-off fire::ibhters. In fact1 the only places in the Country where .a firefigl:tter'risks lav-off ~Y"O t-'h"" I I .. 'There is. however. an atmosphere that offers opportunities not found .in rural settings. While it was obviously the union's aim to demonstrate at the hearing that the firemen are underpaid, overworked and exposed con.., tinuous,ly to extreme hazards, the record as a whole does not support their argument. ~fuil~ there obviously are hazards, the testimony at the hearing demonstrates that the Clearwater Fire Department and the men deal with the inherent hazards in an ~ntelligent manner. Addi- tionally. even with the hazards a firefighter faces, the actual job experience has been such that insurance underwriters charge lower rates to protect firefighters than many other occupations within the City. .Considering the above, one would predict that if this description of the atmosphere were accurate, rarely would a man leave the depart.., ment and applicants would be clamoring to join the work force. As sho\~ by the record, the prediction is correct. Hardly anyone leaves. In the last three (3) years, five hundred fifty-two (552) have applied to join. l The union wants thirty (30) changes. The City asks the Special Master to consider \vhat the men nm., enjoy when considering if each change is tvarranted.. The bargaining process v7hich led to this impasse was anything but fruitful. The union proposed the thirty (30) impassed changes (and many others that have been resolved) for a second contract when the ink was hardly dry on the first contract. The union learned ea.rly Lhac LlL~ CiLY, in its J~la.ings with all twelve hW1JJ;~u(1,.2UO) of its employees would try to negotiate for contracts wherebythe-- annual merit adjustments would continue j. but there would be no "across the boardl'wage increase. With the uniOTl's knowledge came the belief that "If we have to go to a Speci:!l.Master we might as well ask him I I position with an unrealistic number of demands and the City's posi- tion of essentially maintaining current policies with built-iri improvements. The union calculates that a "middle ground" extends further tmvard the union's des ire each tiIile a new demand is added. If the "middle ground" is determined numerically by the Special Master then, obviously, the union's tactic - which bears no relation to a good faith effort to resolve disputes short of arbitration - -will have been successful. The final point the City would address before 'discussing each of the thirty (30) demands is the City's concept of the role of the Special Master. The statute under which this matter arose directs the Special Master to issue decisions \"ith the "objective" of reaching a "prompt. peaceful and just settlement" of the dispute. It is not the role o.f the Special Master to simply rule on each of the thirty (30) demands and note that one is "justifiable" or another is not.. Rather, the Special Master should shape his ruling on a basis that he conceives the parties can and should agree to and, thereby, "settle" the matter. For.example, suppose the City had asked for the freedom to discharge employees without having'to show "cause" for the termination and i that. hypothetically, the City demonstrated that such a provision was "justifiable" in the vic\v of the Special Haster. Because this issue goes to the heart of the union's concerns, a ruling favoring the City simply \.;rould not lead to a "settlement" of the dispute. Rather, the union would reject the ruling as unacceptable. The distinction . . DEL:Ween WiJ.at .:_ t~':..___~;';_i.-"_:1 ....., J 1.10:> l.......L....C1U.L~ __-.J __l-_.L- C1UU VlllC1l.. ~\'Jill l~dd Lu "settlement" is real and the City asks the Special Haster to be guided ,by, the legislative goal of settlement. At the hearing the Special Master sustained objections from the union to>the City's attempt to examine the impact of the union's I I look at the probleln both from the standpoint of the employees and the employer and consider the problems facing each which could bar a settlement. One of the City's "problems" is that it employs one thousand two hundred (1,200) people, not just the one hundred thirty (130) Fire Department employees. Because of this the City, unlike the union. must be concerned \o1ith what other employees \o1ill do following a "settlement" with Fire Departmentemployees. The problem is not illusory. The union president understands the problem he would face if other groups were dealt with by the City without regard to the firefighters. He predicted a "severe morale problem" for firefighters were other City employees to receive a wage increase, but not his members. Additionally, the union contemplates the problem by its "equality" proposal whereby anything a policeman receives automatically is extended to the Fire Department. There is more than ample legislative authority for the Special Master to consider the impact up~n non-Fire Department employees. First. the primary goal of this proceeding is to "settle" the con- troversy. "Settlements" are not achieved unless both parties can live with the results. Second. the legislature allows for consideration of the "interest and welfare of the public". It is not in the interest of the public to impose on the City a settlement which will. in the union president's "lOrds, create a "severe morale problem" among the City's remaining one thousand seventy (1,070) employees. Third. the legislature allO\o1s the Special Haster to consider "other" factors than those listed in the. statute. .The City is not asking the Special Master to treat firefighters identically with other employees. The City iitself.has not done that as shown by the prior contract \o1ith the union andCit~ Exhibit 5. demonstrating that firefighters have receivell.wageimprovements ex- . . I , NON ECONO~llC DE~1ArmS 1. No-Strike Clause: In October, 1974, the City and the union negotiated and agreed to a "strong" no-strike clause. The City sought and obtained what it believes is a guarantee that during the term of the contract there will be no strike. The City cannot accept the union's rationale for not now agreeing to the former contract language. The union says it "goes too far". At the same time the union says it has no intention of striking. . In private sector labor relations binding arbitration of disputes arising during the term of a contract is the quid ~ quo for the union's agreement not to strike. The City has agreed to binding arbitration of mid-contract disputes. If the City fails to fulfill this agreement, all the union need do is file a charge against the City with the Public Employees Relations Co~~ission. The City would be ordered to arbitrate and, were any monetaryrelie~ awarded, ordered to pay the relicf even during the period of the unlal;vful refusal to arbitrate. The union, therefore, has a full and complete remedy, through PERC and/or arbitration against City violation of the contract. However, were the union .to strike in violation of the contract,' I the City could never be made whole. One could not erase the effects of a building that burned while the union picketed or the effect of a person dying vlhile the rescue vehicles I;.;ent unattended. Accordingly, the no-strike clause the union once agreed to is aimed at prevention in the most effective manner, that is, stripping the union of its right to represent the City's employees. The union also objects to a restriction against mid-contract picketing. As stated_above, the laH in the private sector is that when a union se.cure;:; Linding arbitration of grievances it thereby gives up its uS..0.<ofeconomic weapons such as picketing. It is in- I I Finally, the City would emphasize that the clause is not directed to strikes that occur after a contract has expired and are directed to. exerting pressure for new contract demands. All the clause protects is the City's right, in exchange for its contract with the union, to . operate continuously throughout the term of the contract. Strikes by public employees are constitutionally prohibited. The union has no intention to strike. Murder is prohibited by law. If one is not goin~ to commit murder, what concern does one have over the penalty for murder? The City, relying on 'the 1<i\-7 and union to obey the 1a\-1, does not prepare for work stoppages as \'lQuld a private employer. The City deserves the protection afforded by the no.,.strike clause previously acceptable to the union. 2. Representatives of Parties: As with the no-strike clause, this matter was acceptable to the union last year. Additionally, the City has proposed a change. from last year which further limits the scope of the article. The City is bound by law to deal only with the union. The City could not go to each individual firefighter and ask to be relieved of a contractual obligation. Under the law, such action would be an unfair labor practice. All the City seeks by this clause is an equal restric- tion upon the union. Equality is achieved by restricting the union's by-passing City management and going to the elected officials in an effort to have those officials amend the contract or reverse the j udg- ment, of the City management. "Political" action is not restricted nor is the person's right as a citizen to address the City Commission on __...._. ___~____.:..... __,..:_........__ _....__....__.:1_~ U.vU.-\..VUL.J..C1~L. U1C1L. L.C.L 0:> \"UJ.. L.C1.L..L<::U. From the testimony of the union president, it seems that the union, when it agreed to the clause last year and even nm,r:, ,does ~~not understand the limited nature of the restrictions imposed. Be thAt as it may, the restrictions are fair and lead to the orderl.y and equal I I what the legislature has done. The City resists this because the City is unable to predict what it would be obligated to under such a proposal. The legislature could do anything without the City's consent and then have the City bound by this contract to fund the legislative scheme. The City would be willing to bargain with the union over any new legislative pension developments. Obviously, it would be out of character and absurd for the City to think it could eliminate pensions. Reality protects the union in this regard. However, there are enough real problems facing the City without its agreeing to articles dealing with "what if" when the City cannot determine what its obligations would be. . 23. Lead Pay.: At several stations there are two (2) company officers. They each have control of the men under them. They are, additionally, expected to be good enough Iilanagers to divide responsibilities not directly related to their particular men. If they are not, a Captain, who visits the station or is as close as the telephone, \vilI solve the problem. The testimony revealed that the only duty one lieutenant has over the other is to keep the station log. An entry in the log cannot take more than thirty (30) seconds to a minute several times a day. That is simply not the type of task that warrants a pay differential over the other lieutenant of five (5) per cent or six hundred twenty- nine ($629.00) dollars per year calculated on the lowest lieutenant pay !:',Lcl.(je. i'.Lllaiiy, i..he Cit.y's lIlanagement structure is designed. 1:0 render unnecessary a "lead" worker. 19. FilLing Vacancies and 17- Acti~g. Pay.:' . In the 1974 contract the union won the requ:Lrement that if a man acts in a higher position for twenty (20) .consecutive days, he I I By these two topics the union seeks to deprive the City of essential management judgments utilized in operating the Fire De- partment. The union proposes that the City be required to fill all budgeted vacancies and that any time a person "acts" in a higher position he receive additional compensation. Thus, the City would be deprived of the right to staff the Department according to its management plans and restricted in assigning persons to different duties on even ,the most temporary basis. The union's proposal as to filling vacancies is um'70rkable. Vacancies in the firefighter ranks have to be filled with "rookies". By law any person acting as a fireman must complete a "rookie school" leading to State certification (union Exhibit 7). The school involves training in the various aspects of firefighting including exposure to a burning structure. Because of the time. manpm'7er and expense in- volved in conducting the quality training program the City has, it is impractical to put one (1) or t\-lO (2) neH hires through a school and then repeat the process a s'hort time later to fill one (1) or tw~ (2) more vacancies. Rather, the City should be allowed to conduct a school "lith a large number of applicants so that; l)expenses \vould be minimized and 2) only the top candidates be placed on permanent status Along with the impracticality of the union proposal goes the concept that the City should retain its right to staff the Fire Department according to management judgment. The union, in the "agreed upon items" consents to such a right in item 2, "City's l1anagement Rights". After having agreed to the right the union now wants to cake it away. The Ci~y asks ~he Special Has~er no~ to allow an ero- sion of perogatives essential to management. The history of labor re}at~ons'Ehows that once a concept such as is here involved is discarded, then all the inci~ents of the concept eventually become subjects of- negotiations. In sum, if the principle of management I I As to "Acting Pay", the City asks that the time limit be ex- tended to thirty (30) consecutive days instead of the twenty (20) days in- the current contract or the zero (0) days contained in the union demand. The current t\'lenty (20) day limit dictates that if a .man fills in just for one vacation period he must be paid "acting pay" for the entire time as vacations commonly last longer than .twenty (20) consecutive days. \.Jhen a man is simply "acting" he does not perform the functions that dictate a substantial difference in pay between firefighters and lieutenants. He is not charged \'lith evalu- ating em~loyees nor with maintaining the consistency of operation over a long period of time. These responsibilities are the basis for salary differences, not an isolated instance of directing other em- ployees in what are already \-lell-defined tasks. A second failing of the union's proposal is that. it contains a request for five (5%) per cent pay over the person's "total" pay. Firefighters \'lho drive receive bonus pay of five (5%) per cent be- cause they drive. When such a person "acts" as a lieutenant he naturally does not drive the vehicle. Accordingly, the reason for the bonus is removed. The union cannot have it both ways. They cannot, and be intellectually honest, ask that a man be paid to "act" as a lieutenant but continue to receive pay as a driver \'lhen he is not driving. 29. Binding on Successor Clause: This proposal is another unrealistic attempt ,by the union to deal Wl.. th a "what ;f" top;c.. Th . d d th t f th C t b 1. h .... .... e unlon eman s .' a i e i y a 0 15 es its fire service that successor governments be bound by the contract. It is important to note that only other governments are involved as the Cl.'~y h::J~ already agreed not to contract with "private"':conc:erns for fire protection (agreed upon item 14). There are more than twenty-five (25) governments in rinellas County alone. . Were fire service consolidated country-wide. t~.e employees of the many governments and the local unions representing these groups would be placed in one bargaining unit. The former City employees would not retain a separate identity. It would . destroy any hope for an efficient operation if the consolidated. fire l ~ .~ -10-, I , service had to deal with their employees as if they remained separate units. . There was nothing presented at the hearing to indicate that a consolidation or merger was imminent, planned or even rumored. \.Jere one to occur, the employees would retain their State awarded col'"- lE2.ctive bargaining rights.. That has proven to be ample protection. Again, the City asks that the Special Master not foist proposed solutions to unkno\ffi problems on the parties. 30. Retroactivity: If .a union is c~onvinced that whatever gains are secured at whatever stage of the collective bargaining process .are guaranteed to commence immediately upon expiration of prior contracts, then:all impetus for an early settlement is removed and the process isahorted. If retroactivity is assured then any union would be foolish to pursue not only direct negotiations with a City bargaining team, but also mediation and, eventually, a Special Master proceeding. The bargaining system should be designed to encourage early the parties Hithout lengtrq intervent:i..onby outsiders. reason, the new contract should take effect upon ratifica- 10. \.Jork Rules: A union \-1itness, Lt. Clements, testified that historically the Fire Department keeps its m~"Il house in order. This is a point of pride among those in the fire service. Not\-Jithstanding this history, the union wants to be relieved of keeping itsmm house. .....,.....--:......".. ---,._.:...,....~ ....~,.. ~-"..... _4-....._,..."...-'..: -.:,:... a+- +-~- .,,---..:'--....... !'"~ :--:-v-~-::.- Ut.'\J'l/Yk.L1.6 A-.......'-...........v'-u L-.L.L":'" UJ.\J.JL- u..L-.....~.LI.L.-..L.V.L... '- ,\.-.L1~ .L1.~UL.l-I,"'6... -.. -- -- examination "~e infrequent nature of the responsibility became-- The con.clusion was th,' ~ of alJ:!.,tJ'Le:mer.L on duty, la\m mowing only involves two or three men for approximately an hour every third week. Besides lawn mowing, the City directs that persons with the. -----~. ~bility to perform the function see to some plumbing and electrical repairs. It was clear that the City does not assign tasks to un- qualified employees and, therefore, does not expose them to injuries . -11':' could occur with the unskilled. I I The union's proposal, if accepted, would be a fertile source of grievances. How could the City have any idea what the union means by the "etc." the union's proposal contains. Additionally, the City, with this departure from the norm can hardly know ~lhat "normal routine" duties it could direct the employees to perform. The City certainly does not believe the performance of the fun- ctions which the union seeks to eliminate impairs the Department's efficiency tq a degree \varranting any concern. "Jere the case cther- wise, it is extremely doubtful that the prac ticcs \-lOuld have lasted from the start of municipal fire service through today. 'The ~nion has failed to make a case for the radical departure from longstanding practices it proposes. 11. Hork Schedules and 16. Manning: The City is already authorized by budget to add fourteen (14) additional firefighters during this fiscal year. Despite this, and despite the economic atmosphere in which the parties are dealing and which the union "realizes", the union demands the City employ fifty- riine (59) additional persons at an annual cost of around $725,000.00. The demand is made in face of evidence presented by the union that fire . alarms have decreased markedly over the last year. The City cannot quarrel ,-lith the union's presentation of manning strengths for the "ideal" Fire Department. HOvlever, the City has never felt it could afford the "ideal" \"hen the current manning levels do an excellent job of protecting life and property. Indeed, the union '\vitness testifying as to manning strengths, acknO\vledged that the City could get by another year without increasing the work force. The manning levels to be utilized is, again, an area of manage- melleJudgment. Management must consider a 'vide range of problems in arriving at ~ proper strength of the work force. Obviously, the cost of the !'>e'rvice must be weighted against its value, and its value in relati0~ to other municipal functions to which the money can be ap- plied. In effect, it is a municipal jud8ment on the priorities of government. For this reason, the legislature removed from collective bargainin~ l topics such as manning. The legislature, in addition to providing publ] -12- I , employee rights set out the rights of management as follovls: tilt is the right of the Public Employer to determine unilaterally the purpose of each of its consitutent agencies, set standards of services to be offered to the public and exercise control and discretion over its organization and operation..." (Emphasis added, union Exhibit 2, Florida Statute 447.005) The only exception to the right to take "unilateral" action occurs when taking the action would breach the employee's contract. The City's manning plans violate no contract right of this union other than their proposals on manning. Obviously, if manning is not sub- ject to collective bargaining the union cannot claim any violation. The legislature's intent is unmistakable. The I.Istandard of service" of a Fire Department relates to how many fire statioris, fire vehicles and firefighters a city utilizes. The City respectfully submits that the legislature, providing the City with a right of unilateral judgment as to manning, has deprived the Special Haster of any jurisdiction in this regard and that the Special Naster is bound by the statute to recoIillIlend against any violation of the-City's rights to take unilateral steps. The issue of the work schedule is included unde.r manning to ' point to the inconsisten~y of the union vlanting more time-off with pay at the same time it argues that insufficient manning exists. Firefighters already vlOrk only one hundred fifteen (115) days out of three hundred sixty-five (365). The City submits that more "free time" is not a justifiable demand from the union. No city in Pinellas County, Florida, has less than a fifty-six (56) hour \vork week and only. t'tventy (20) in the entire State out of over two hundred (200) work less than fifty-six (56) hours. The union's "economist" submitte\~ a document purporting to shov! the City as 21st "compared" to the cities lisl.?u. To use his term, the man had to "leaf-rake" to provide even the impression of a trend by including cities such as Stuart, wi~h rieht (8) firefighters. A request for shorter hours, without any reduction in pay is nothing more than a request for a pay increase. The actual time-off is simply not needed. Accordingly, the Special Haster should view the goal of this issue under the consideration of wages rather than ~place on the department the inefficiency that sporadic absences such -13- ~ I ., as proposed by the "Kelly Day" system does to the teamwork essential to firefighting. Finally on this topic, the union asks that the schedule of the . fire prevention officers be altered so that they have ~ paid lunch period and leave work at 4:00 P.M. The City does not want to have "paid" lunch time. Rather, lunch and personal business should be handled on the employees' own time. Additionally, the City desires its intpectors to be on duty concurrent with normal business hours, 9:00 A.M. to 5:00 P.M., so that the inspectors can respond to the . public and deal with the public throughotit the normal day. 13. Prevailing Rights: This topic is a crutch for ineffective collective bargaining, '\ the breeding ground for grievances, and a complete restriction of management's attempt to run the Fire Department. , The City urges that if a "right" is important .enough to the employee so as to 'varrant its preservation, then the union should deal with the matter at the bargaining table. The union has nego- tiated a thirty-eight (38) page contract, proposed thirty (30) impasse items, and previously proposed many other methods to protect the "rights of members. The shear scope 'of this proceeding supports the vic\v that if its important the union has proposed it. The City has no \Vay of kno-r;'ling exactly 'Hhat it cannot do \.rhen bound by such a clause. Of equal importance is the reality that any change is labeled, during the term of a contract, a violation of a "prevailing right". The result is a grievance, the hard feelings surrounding any dispute. and the eventual expensive arbitration over who is right. The result can and. should be avoided by effective collective bargaining. During the last contract tr.2 City agreed, in a comproml.se. posture, to a Prevailing Rib~lt~ A:::-ticle that simply prohibited "arbitrary or capricious" changp. of items not found in the contract. In other words, on those items not important enough even to the union to warrant inclusion in the contract, the City agreed that it must have R rational basis for departure from prior practice. The \ City conceeded on the basis thai bargaining was new to the .union. -ll~- ". I I Additionally, thc negotiations were conducted with both sides knowing that since the union secured a fifteen (15%) per cent in- crease in May. 1974. there would be no wage improvement in the Fall. 1974. contract negotiations. The City, therefore, was in a weak pos- ture on bargaining "language" of the contract. Hmvever, the ex- perience undcr the prior contract has not been pleasant and the union has now had time to gather any conceivable "right" it 'vants protected. For these re~sons, the City asks that the Special }!aster not erase the management's rights clausc already agreed to by the union, as following the union's proposal would surely do. DIRECT CONPENSATION DEHANDS 3. Wages and 4. Equality Provisions: The City of CleaDvater is asking its one thousand two hundred (1.200) employees to proceed with the merit and longcvity plans but not to have a general wage adjustment. The City realized the dif- ficulty it would have in convincing employee organizations, including - the firefighters to accept this proposition. Obviously, everyone wants more pay. Howevcr, there are several good reasons ,qhy the Special Master should recomnlend that the union, for this year, forego a general wage increase. The first reason was discussed in detail in the introductory portion of this brief. That is, the union's members are not paid slave wages that cry out for improvement. Rather, they make a fair and equitable salary and enjoy liberal fringe benefits. Over the recent years the City has greatly improved the economic standing of its fire department employees . In fact. s.?laries for the Fire De- partment have almost doubled in eight (8) years. One simply must start from this point when considering thp Justification of a wage increase. The second thing to consider is what fa.-:tor:; should an employer take into account when setting wage rates. T.he City believes one must first look 'at whether the wage being paid is sufficient to attract new members to the work force. The evidence on this factor is over- whelming that the Clearwater wage scale is sufficient for ne\V hires \ as shown by the five hundred fifty-two (552) applicants. (City Exhibit -15- ';,-'~>e:''''Jl!'!:':'' ~...~.~, ~~~,.~-:O. . ~ ,~'--'-'r.~~'I~-;~-r<t~~~' .,~,~-~- """!,,:.,,..,-~ -~"":,,,~"~:r 1>("""':"-'~" ,-"" ..',,; ,-, I I A second factor is whether, in an absolute sense, the wages being paid are adequate to retain the well qualified persons already employed. Again the evidence shov7s an extremely low turnover rate. (City Exhibit 12). If Cleanvater \vere not being "competitive" in its wage practices there would. to some degree, be objective evidence of the fact by having people leave and go to other municipalities. This has not occurred. Because of the "lock in" effect of any pension program, including the City's, one cannot stop just at the fact that no one is leaving. Rather. the "fairness" of a \vage must be examined to see if there is evidence of discontent. It is logical to expect that if a wage level is "unfairll the employer will see a morale problem develop. The City submits that the record in this case shaHs anything but low employee morale. Rather. there is pride in being a Clean-7ater firefighter and its members excell in all directions. A City paying inequitable wages could not boast of this reality. In sum, the record on these factors demonstrate that the City's current \vage level is adequate to attract and. maintain an excellent employee work force with a good morale. That, in the City's view makes the \vage level both "fair" and IIcompetitive". An additional factor to the three which principly demonstrate the City's wage philosophy is the cost of living index. Here all unions pick and choose an isolated period or-time and shaH "erosion of purchasing powerll. No doubt this can be shown. Indeed, in the short time since the hearing there hasprohably heen "erosion". How- ever. ..... ~_ ~ _ _ _ _ __.::: -.... ; - -f P V ""l co ..., +- ,.... "" , ., ...... ,... " ~ ..... ..; _ _ ... _ _ _ _ - - - - - ...- " LUt:: l.:U~ L UJ.. 11 V1.n,q- _.....~H ........ .... ...v........ ....u ..:"...... \......u5 wa6e;:, wu~ L ut:: used for tr,o purpose it was intended.to serve. That is. to see where ..y.~nE>_iJ.ol1ars one now earns are in relation to the day when a dollar would purchase a dollar's worth of goods. If one does not use the index for this purpose. then all that need be done to show lIerosion" is go one month without a wage increase. That is exactly what the u!lion's "economist" did in this case. Under his theory. the employee 's purchasing power was "eroding" in June, 1~74. even tl::lOugh they had received a fifteen (15%) per cent wage increase in May. 1974. Looking at City Exhibit 9. charting the history of wage increases and the ~ost \ I -16- ~ I I of living index, it is difficult to conceive of how the union views the Hay, 1974 wage increase as being to "catch Upll with the cost of living. In fact, the City's wage policy has far outran the rise in the cost of living since the time that a dollar would purchase a dollars worth of goods, ie., the starting point of the index, 1967. More importantly, even if one accepts the union "economist's" predic- tion for the rise in cost of living for the coming year, the wage history will still have far exceeded the cost of living rise. As stated above, one looks at the ~ost of living index to see about purchasing power. This being the case, all of the dollars a person earns must be examined. In this connection, the City urges the Special Master to include in his consideration the "merit" increase which the work force receives more or less automatically. Those are real, spendable dollars and further magnify the fact -that the employees have not lost purchasing power if the cost of living index is viewed for the purpose -it was intended to be viewed. The factors above are all examined with a view towards what is "fair" for the employee. To complete the process. one must look at v1hat is "fair" to the persons paying for government. The City believes that it is not fair to the citizens to pay more than what is required to attract anl~ lil""'; ::tai.n an excellent \-lork force with a high mora10. Intelligent consumers go into the marketplace ~~i.(i cuulpare prices and quality. If one can. for a lO'tver price, purchase the same quality product that a second merchant prices higher, what reason is there to pay the higher price? The City management is top reprec::entat:ive of consumers of gO"'.7ernm~r.t servi~~::;. - - .. 1__ ___ ..L .....,: '- ...A.\;;. City can have an excellent Fire Department and be "fair" with the employees so as to foster high morale, there is no purpose to be gained by paying more. The City suggests that the discussion above contemplates IIfiscal responsibility';. To bow to outside pressures and charge citizens more than is requi::-ed is "fiscal irresponsibility". The latter is exactly why New York, San Francisco and other major cities are in the financial plight they are. -17- Both sides at the hearing acknO\....ledged t1lat the money the un~on wants for wage increase has not been budgeted for this fiscal year. Additionally, it was undisputed that no money in th~ budget was desig- nated for any of the twelve hundred (1,200) employees to receivev:ages over and above annual merit steps. Notwithstanding those acknowledg- ments, the union "economists" testified that there was apprOximatelY one million two hundred thousand ($1,200,000.00) dollars that the City could spend on fire-fighters that was not to be found designated as such in the budget. Presumably, the City management has "hid".this money from the ~lected officials during the budget process. Inter- estingly, the "economist" has been able to find these hidden funds in nineteen (19) of the t\V'enty (20) cases. Interestingly, the amount he found very closely parallels the total cost of the union's wage and manning proposals. More interestingly, however, is the fact that of the twenty- five (25+) plus exhibits the 'tvitness offered in his "presentation" (as. oppossed to direct examination), none of the exhibits indicated \vhere the monei was to come from. Rather, all the Special Master heard was his bare assertion that the City had the ability to pay. The City submits that if such an important factor was capable of proof, it was incumbent on the union to. offer proof.. It is not the City's job to J pry the critical information from the witness on cross-examination. The burden of proof in this case i~ placed on the party attempting to prove the particular point. The bare assertion of this witness does not prove that funds are available for pay increases without raising taxes or eliminating other portions of the budget. Even taking the "economists's" statement as fact, which the City mos. assuredly does not, the wit'1t::ss did not "find" enough unbudgeted funds to solve the City's problem oE 3~aling fairly with its other one thousand seventy (1,070) empl0Y0e~.. By no stretch of the imagination- does the evidence demonstrate an abijity to deal with all those em- ployees in a manner an~vhcre clJs~ to that whi~h thi~ union 0emands. The "equality provisiop.." is important in this connection. On the one hand the union asks to be treated exactly the same as policemen. -18-' At the same time they ask to be treated radically different from all ,other employees including police. .1 I As stated above, the City does ~ot desire as a consistent policy to treat all employees identically as is required in the union's I I "equality" effort. What the City is asking is that considering the current wage policies and the isolated OCCurrence of a situation wherein no wage increases are offered any employees, the City not be faced with the inevitable morale problem that occurs if one group were singled out for a wage increase. Finally as to wages, are the statutory comparisons. A quick look at the charts the union presen~ed (Nos. 57 and 58) demonstrates that any VTage increase resembling that asked by the union Hould be a radical departure from the City's relative position. ~fuile the "economist" steadfastly shut his eyes to his m-ffi charts the fact that the union proposal would have the City paying a great deal more than Tampa (with 600 firemen) is a tremendous break \-lith history. Indeed, the comparisons show that while the City is the smallest of the three (3), Clearwater has maintained a consistent posture of paying more than St. Petersburg and less than Tampa. By maintaining . the current wage, as proposed by the City, ClearhTater would still pay substantially higher than St. Petersburg, its closest and most comparable City. Despite the desire of the "economist" to have the City compared only with those who pay highe~ the City's relationship to St. Petersburg offers the-truest picture of \vhether the City , pays a "good" vlage. The City realizes that it asks the Special Ivlaster to issue a "hard" decision on VTages. It is human nature for the firefighters to want "more" and the newness of collective bargaining and unionization adds to the union's anticipation. It is "hard", however, to balance the intE:J.:est of thE: taxpay~r with ....'L _ l-HI:: ii.-lt~rest _.c ~l..._ ___, ___,_'_ U.1. l-lit:: I::W}J.LUYI::I::. or _ .LLl .. ., - -. - LU.L::> case, on consideration of all the factors, the City b~lieves that .the interest 6fLthepublic outweighs that of the firefighter and that an increase can eqnitably be delayed to the next year. 6. Cos.!,. of Living Allo\vance: The same reasons that a general wage increase is not warranted apply to this union proposal. Additionally, since the parties have agreed to a one year contract, for which negotiations will begin next March, the cost of living can then be considered. Finally, municipal government plans its spending on an annual basis as it has done for -19- I ,I this year. The system is not appropriate for varied and continuing mid-year wage adjustments. 5. Arson Investigation: The two (2) fire prevention officers who are doing what their job description requires in an excellent fashion have been offered an additional five (5%) per cent merit increase or, approximately seven hundred thirty ($730.00) dollars. The Statute, Sec. 447.005, allo\~s the City to set its organizational structure as one of the few reserved public employer rights. To offer these t\~O (2) men more than any other employee in the City has been offered, is certainly recog- nition of the~r excellent performance. TRADITIONAL FRINGE BENEFITS 7. Holidays and 9. Vacations: The union failed to demonstrate a need for more time-off for its members. The nine (9) holidays provided already are consistent with area practices (City Exhibit 8) and the vacation schedule is one of the very best in the area (City Exhibit 10). 18. Hospital, Dental Insurance: The union proposal is drafted so vaguely that the City has no idea exactly what it would be insuring. The City's current policy, found in City Exhibit 11, pays eighty (80%) per cent of hospital charges and medical expenses up to a limit of two hundred fifty thousand ($250,000.00) dollars. The Special Master is again asked to consider that insurance calculated on the basis of a "city-wide" group. There is no basis on thic; record for separating the one hundred thirty (130) firefighters from LLcc other one thousand seventy (1;070) in the group. . 1.). T.e;>ve of Absence, 27. 28. Accr~~d Benefits, 14. Sick Leave Incentive Award, Sickness or Injuries on Duty: There was no testimony of a problem of absenteeism among fire- "fighters that could conceivably be corrected by providing an incentive for not taking sick leave under less than pecessary circumstances. Traditionally, "sick leave incentives" are methods of improving at- topics demonstrate a gross misconception of "sick leave". This pay . tendance. The "incentive" is not required among this work force. These three (3) topics, and the testimony in support of the ~ -20- I I is to protect the employee from loss of income due to his illness. A person does not have a "right" to sick leave unless he becomes sick. For this reason, the City does not believe it should reward people more than it already does for not being sick. If there is a difference between "not being sick" and "not taking sick leave", no employer should be required to reward an employee for the latter. Such a reward would amount to paying a bonus to a man for his not taking unfair advantage of the employer. The current policy is liberal and there is no justification for a change, especially one which would allow for compensation for illness not to the man but to others in his family. The City already provides up to four (4) weeks time-off with pay for this purpose. The City believes this is generous. After that time, through shift exchange or use of vacation time, a man can still care for his family without losing income. The last "sickness" topic is the union's request for a policy over and above "sick'leave" for on-the-job"illness". The City again has no idea what this clause would provide. The workman's compen- sation statute, providing for "compensable" job.related absences from work is an accepted and liberal standard. To add an unkno\ill quani ty of "illness" is rlOt jus tified. Under current practices, if a man suffers an on-the-job injury of a serious nature he is paid the difference between workman's com- pensation benefits and hi's regular pay. On less serious injuries he has his sick leave, or, if that is depleted, can work a shift exchange so his income remains constant. Ine union wants Lo ue paid [LULU Ute [ir~i. day .cUL all injuries without charging this to sick leave and without allowing a credit for insurance payments. The union's appetite is insatiable~ -It is ridiculous for an employer to purchase insurance an~ then disregard the payments received from the insuranc~ company. In fact,the proposal, if followed, would be an incentive for a man to be injured. He-would not have to work and his income would go_ up. This is an indication of the union's concept of "fairness". It should be soundly rejected. -21- : I I DEt-lANDS FOR EXTRAORDINARY FOro-rS OF Cm.lPENSATION 24. 26. . 21. Hileage AIIO'tvance, 25. Cleaning, Damage to Personal Propert~ and Telephone Pay: Every employee faces some costs of being employed. The firefighter incurs less than others, not having had to pay for college training, tools, or even work clothes. The union, however, wants a utopia where everything in the paycheck can be spent as the employee desires rather than some small percentage going toward his cost of earning a good wage. The City cannot earnestly accept the 'union'sposition that a man's telephone is a burden placed on the employee that the employer must finance. The union ignores the fact that \vhen the man is called into duty he gets paid time and one-half times his regular rate of pay. The City believes this is an ample re~vard for the re- quirement that the man have a phone, something only the rare person in 1975 would do without regardless of employment. The union furthers its "more" philosophy by asking that shirts and blankets be cleaned at City expense. If a person were poverty stricken such expenses may have a degree of importance. They do not in this setting. This catagory of demand is of the same deminimis nature as the request that the City replace damaged personal property. The. Employer submits that if the union can think of all of these demands and all are important enough to include in collective bargain- ing, that it can certainly detail the items it considers "prevailing rights" rather than ask the City to take on unknmvn obligations. 22. Pay for Negotiations: It is not an appropriate expenditure of taxpayer funds to pay someone striving to charge the taxpayer more f.orhis services. While the goal of collective ba~gaining is agreement, the process is . adversary in nature. There is no re.:lSO"1 'tolhy one adversary should pay the other. The reality is that with the free time available to firefighters and the ease with which they can exchange shifts, extensive negotia- tions can be conducted without the men losing pay. 12. Call-in Pa~: If a man is called in more than four (4) hours prior to his shift, but only works an hour, he receives four (4) hours pay. -22- .~ - .. I I .. However, if he is called in less than four (4) hours prior to the start of his shift he receives the actual time worked at time and one- .balf rates. The City's position in the latter case is that the man was coming in anyway. The inconvenience of his early arrival is compensated for by the overtime rate. This inconvenienc-e is much "less extreme than when a man is held over and deserves less than the automatic four (4) hours provided for a hold-over situation. 20. Tuition Pay: The union wants the citizens of the City of Clearwater to pay for its member's schooling twice. Once as a part of City tax and once as a part of United States taxes funding the veteran's benefit i . I I program. The union's complete lack of concern for fiscal reality is again demonstrated. The union also wants all books paid for by the City. They want this regardless of \vhether the man wants to . keep the book because it is valuable to him or whether he wants to. sell it to some other student at the end of the course. - -:. -~: Respectfully submitted, CONCLUSION This brief has been extended for two reasons. First, after the union put on three (3) and one-half(~) days of evidence, the City decided to argue many points in its brief, such as the tuition policy discussed above rather than argue through testimony. Second, the union demanded thirty (30) changes. As shown by many of the union's positions, collective bargaining is new to Florida's public employment sector. Change for the sakemof change is the union's method of proceeding. The "more, more" attitude is prevelant. The City urges the Special Master to bring sanity to the proceeding and recommend a settlement that will be fiscally re- Sponsible and assist .both~;thc City and the union fn avoiding the path to disaster other cities ~3V2 followed. . , Lut/~ r;. ~7 ~ - WILLIAN E. SIZEHORE.. ~. Shackleford, Farrior, Stallings & Evans, Professional Association P.O. Box 3324, Tampa, Florida 33601 Attorneys for the City -23- ". ~.........~iIIt:~,~,:",_ -_.,...._<~-~~-..' ~~~;;,!O-,,':"'.... A I!h.... ~~_......______ . . \ I I CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been delivered by U.S. Mail this 21st day of November, 1975. to TERRY FUR~~LL, ESQUIRE, Donahey & Furnell, Suite One, Legal Arts Building. 501 South Fort Harrison Avenue, Clearwater, Florida 33516. Lvw~<>- 6.~ Attorney .. . J. ~ .. s .. ..' -i .. -24- ,~ . Cc~.., fA{l.., So w 0 F - 5p.~y /f;lCttl\'$cS - - r~ C#I: :M.;~E'S '~I So 30 2.0 I (PI. - I NQ4Ase::s To 70 ho. ~o I tIo 10 - "'.... ., , ./ , "". ....' "* , SAU\I2V iNtR.~.c;. OF FIl:?,E,F,c-:;.HTte 1 o Ie"f oer tJC:r ocr OC-T OCT car ~T SEh 1'1'1 '''iIi "loll .flb ''11 "1,. "1) 1/:{1>; li1S .~ '.",-. 'w.:"'""",,,,_.... ___"''''''''_,_ - /- g-- ~ o tI) < tI) ~ .~ tI) c.ll Z H f-f ~ tI) ",~ '.1 - It) ..... 0\ N .... I ~a.. I r .0 QJ - .u - -tc <fc <fc "Cl fIl - - - ~~ a.. 0 0 0 0\ 0 0\ QJ \0 0 ,.... \0 ,.... \0 c:: .u . . . . . . QJr-l E CO 0 U'l M It) M ~~ CO It) ..t U'l ..;t It) M. 0\ N 0 N 0 0 u tIS .. .. .. .. .. .. u QJ QJ 0\ . 0\ c'l ..;t M ..;t QJ A. .... r-l .... r-l .... ~tI) to) 0 ~ 0 0 0 0 ...., ...., ...., ic N 0 '0 tIS .... N N .u . . . 0 0\ 0\ 0\ 1r) 0\ ,.... ,.... tIS 0\ 0\ 0\ a.. .. .. .. 111 CO N N tI) .... .... 0 0 0 ~ C 0 0 ~ 0 0 -~ . . 0 < . CO . tI) \0 "- 0 0 Z M C .. .. ~ CO . 0\ . a.. 0 0 '" f-f , ~ a.. '" ..;t Pol 0 . 1r) \0 ctl 0 .... N .... .. . QJ 0 . C .... .... 'CI> Pol C n C ~ QJ 0 fIl iC fIl ~ eo ~ c c - 1lI"Cl .u C.u QJ 0 0 0 0 QJ QJ.... I'd~ C C A. 'M c:: 0 0 0 a.."Cl '" ~"1:l <1J tiI .u .... . . . U C~ .u C E..-f <1J ::3 "Cl ..;t ..;t \0 < c:: <1J 0 . tIl <1J <1J A. tIl..o QJ \0 00 N "- ~ ~ QJ J-l-r-l ~~.u tiI -r-l 0 c:: ..;t 0\ 0 Z A.<lJ C <1J ,... ::3 .. .. .. ~ Otl).u-r-l 0 E-r-l J-l .u ~ 0\ 0\ M ,.... o fIl E o OM J-l 0 c:: .... .QJ>'tiI"1:l <1J QJ <1J c:: 0 'CI> 'CI> 'CI> It) a...o~< J-l J-l E -r-l 0 ...., iC CO 0 0 0 .u 0 0 0 c:: 0 . . . III eo ..;t 0 0 C J-l N 0 0 QJ III ,.... 0 0 .u ..:l .. .. .. ::3 0\ M M <1J <1J ..-f ..-f tIl~ 'CI> 'CI> <I)- ;:I..-f ~ ...J 0 QJ -Ie c:: . 0 0 0 I .u .u C .u 0 0 0 c:: c:: c:: 0 c:: tIS . . . ~ QJ I'd CIl <1J f ..-f \0 N "- r-l C J-l E ,.... 0 0\ J-l J-l tiI <1J QJ .u ..;t \0 0 QJ QJ > .u p.. J-l E-I .. .. .. > QJ-r-l ::3 tiI 0 M It) ~ C ;:I <1J J-l 0- .... r-l ..-f J-l -r-l O"-r-l <1J <1J 'CI> . <I)- 'CI> ~ eo <1J...:l A.~ iC - I iC ~I J-l OJ U ~ CO QJ .... . J.l II) .u ...u .u ~. "\. ;:I 0 0 0 .u QJll-{ QJ C .u ~ ; .0 0 0 0 C .u tiI CIl ::3 <1J II) . . . '" tiI tiI 0 fIl -....: t a.. ('oj l~ N N c:: S~ l1.' c:: r \-j QJ 0\ ~I ..-f ..-f QJ ,.. ca .u -; .u ..... M M .u X-r-l 0 QJ S QJ .. .. ;:l 0 J-l C .u >. ..-... ~ Pol CO ' M M QJ QJ J-l III -r-l 0 -'j 0' .... .... II)-r-l A.r-l ell .u . 0. <I)- 'CI> ;:lr-l o.llI~ X 0 _,r. .u ,~ <CIl\O QJ C <: \ tI) "'-0...../ iC .u C C 0 III .... c:: .u J.l QJ C J-l QJ .u QJ 0 .u ;:l > .u .c QJ QJ 0 CO .... ~ QJ -r-l ..:l Pol A. IH fIl QJ QJ QJ C ,.. ,.. ,.. H ~ -r-l ~ ~ f<4 ~. . ~ '0. M >. .0 ~ , 1 \~ ~ -" ~~ ~~ ~.?- t. .<" . .' _._-_..~- ''') ~ ~ ... ~'1- AI) c 1lO -.(~ ~ ,.