HomeMy WebLinkAboutRESOLUTION - 43-97 - 9/23/1997 - ACCEPT ARBITRATORS AWARD/FIREFIGHTERSRESOLUTION NO. 43-97
A RESOLUTION ACCEPTING THE ARBITRATOR'S AWARDS
FOR FISCAL YEARS 1996/97; 1997/98; AND 1998/99
IN THE NEGOTIATIONS BETWEEN THE VILLAGE OF ELK
GROVE VILLAGE AND THE INTERNATIONAL ASSOCIATION
OF FIREFIGHTERS, LOCAL 3398
WHEREAS, Arbitrator Lisa Salkovitz Kohn has issued her interest
arbitration award with respect to the many disputed economic and
noneconomic issues in negotiations between the Village of Elk Grove
Village and the International Association of Firefighters Local 3398;
and
WHEREAS, the Board of Trustees of the Village of Elk Grove Village
has the right under the Illinois Public Labor Relations Act to reject
in whole or in part the Award issued by Arbitrator Kohn by a 3/5 vote
of the full Board of Trustees; and
WHEREAS, the Board of Trustees of the Village of Elk Grove Village
is, nevertheless, desirous of bringing closure to this proceeding, the
arbitration phase of which has already lasted well over one year.
NOW, THEREFORE, BE IT RESOLVED by the President and Board of
Trustees of the Village of Elk Grove Village, Cook and DuPage Counties
of Illinois, as follows:
Section 1. That the Board of Trustees not exercise its right to
reject in whole or in part Arbitrator Kohn's award.
Section 2. That the Board of Trustees thereby go on record as
accepting the award in order to bring this lengthy proceeding to an
end.
Section 3. That this Resolution shall be in full force and
effect from and after its passage and approval according to law.
VOTE: AYES: 6 NAYS: 0 ABSENT: 0
PASSED this 23rd day of September , 1997.
APPROVED this 23rd day of September , 1997.
Craie B. Johnson
Village President
ATTEST:
Patricia S. Smith
Village Clerk
INTEREST ARBITRATION BEFORE
LISA SALKOVITZ KOHN
In the Matter of the Interest Arbitration
Between
VILLAGE OF ELK GROVE VILLAGE
("Employer")
and
VILLAGE OF ELK GROVE VILLAGE
FIREFIGHTERS ASSOCIATION,
LOCAL 3398, INTERNATIONAL
ASSOCIATION OF FIREFIGHTERS,
AFL-CIO, CLC,
("Union").
APPEARANCES:
On Behalf of the Union:
ISLRB Case No. S -MA -96-86
Joel A. D'Alba, Esq., of Asher, Girder, Greenfield,
Cohen & D'Alba
On Behalf of the Employer:
R. Theodore Clark, Esq., of Seyfarth, Shaw, Fairweather
& Geraldson
TABLE OF CONTENTS
I. PROCEDURAL BACKGROUND ................................. 1
II. ANALYSIS OF THE ISSUES AND THE PARTIES' FINAL OFFERS ..... 2
A. Introduction
...........................................
2
B. Economic Issues .........................................
4
1.
Issue No. 1 -- Salaries for Firefighters ..............
6
2.
Issue No. 2 -- Salaries for Lieutenants ..............
14
3.
Issue No. 3 -- Paramedic Stipend ..................
20
4.
Issue No. 4 -- EMT -B Stipend ....................
22
5.
Issue No. 5 -- Retroactivity ......................
24
6.
Issue No. 6 -- Cost of Medical and Dental Insurance ....
27
7.
Issue No. 7 -- Longevity Pay .....................
35
8.
Issue No. 8 -- Hours of Work .....................
39
9.
Issue No. 9 -- Overtime Pay for Firefighters ..........
41
10.
Issue No. 10 -- Overtime Pay for Lieutenants .........
42
11.
Issue No. 11 -- Vacation Time ....................
44
12.
Issue No. 12 -- Vacation Scheduling ................
48
13.
Issue No. 13 -- Holidays .........................
48
14.
Issue No. 14 -- Duration of the Contract ............
49
15.
Issue No. 15 -- Subcontracting .....................
50
16.
Issue No. 16 -- Pay Rate for Inspectional Services
Division Work ..........................
53
17.
Issue No. 17 -- Fire Prevention Bureau Inspection
Work.................................
56
18.
Issue No. 18 -- Termination Effect .................
57
19.
Issue No. 19 -- Hirebacks ........................
57
C. Non -Economic Issues ................................
60
1.
Issue No. 20 -- Promotions .......................
60
2.
Issue No. 21 -- Decertification of Paramedics .........
63
3.
Issue No. 22 -- Grievances over Merit Pay for Fire
Lieutenants .............................
65
4. Issue No. 23 -- Application of Rules ................ 66
5. Issue No. 24 -- Shift Starting Time ................. 68
III. AWARD ................................................... 73
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
I. PROCEDURAL BACKGROUND
This proceeding arises under Section 14 of the Illinois Public Labor Relations Act
(IPLRA)("the Act") to resolve a bargaining impasse between the parties that arose
during the course of their negotiations for a successor to the collective bargaining
agreement that expired April 30, 1996. The parties waived their statutory right to
a tri -partite panel, and duly appointed the undersigned Arbitrator to hear and decide
the issues presented. There was no dispute as to the Arbitrator's authority and
jurisdiction to decide this matter, except for the dispute as to Issue Nos. 8 and 17
discussed more fully below.
The parties also waived the requirement of Section 1230.40(e)(4) of the Rules of
the Illinois State Labor Relations Board that the hearing begin within fifteen (15)
days of the appointment of the neutral Arbitrator. Hearings were held in Elk Grove
Village, Illinois, on October 9 and 10, November 13 and 14, and December 4 and
December 5, 1996, and January 31 and February 5, 1997. At the hearing the
parties were afforded full opportunity to present such evidence and argument as
desired, including an examination and cross-examination of witnesses. A
stenographic transcript of the hearing was made.
The parties were unable to agree on the proper scope or character of several issues,
and submitted those disputes to the Arbitrator. On January 20, 1997, the Arbitrator
issued a Ruling on Statement of Issues, holding that salaries for firefighters would
be considered a single issue for the entire length of the contract, as would salaries
for lieutenants; health insurance deductibles and co-insurance payment levels would
be considered as part of a single economic issue together with employee
contributions; and the shift starting time issue would be treated as a non -economic
issue. Ruling on Statement of Issues, pp. 4-7. The parties exchanged their Final
Offers of Settlement on January 31, 1997. Both parties filed post -hearing briefs.
On March 28, 1997, the General Counsel of the Illinois State Labor Relations
Board issued her Declaratory Ruling, Case No. S -DR -97-03, that neither the
Union's proposal with respect to Inspectional Services Division (ISD) work (Issue
No. 17) nor the Village's proposal with respect to the length of the work day and
the exclusion of meal periods and a sleep period from "hours worked" (Issue No.
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Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
8) were mandatory subjects of bargaining under the Act. The Union subsequently
requested leave to amend its ISD proposal purportedly to present a proposal that
would not be barred from this arbitration by the General Counsel's Ruling. The
Village objected and submitted its opposition in writing. On May 20, 1997, the
Arbitrator denied the Union's request.'
On September 10, 1997, the parties met in an executive session to review an
unissued draft of the Arbitrator's Award, and to consider the impact of the
Village's negotiations with the Metropolitan Association of Police, the police
officers' union for a contract beginning May 1, 1997. Counsel for the Village
made a general oral representation as to some of the tentative terms of the new
police contract for the period beginning May 1, 1997. However, as of that date,
the MAP had not yet presented to the Village a signed contract ratified by the
bargaining unit, the Village Board had not yet officially approved and adopted a
new collective bargaining agreement, and the Village therefore refused to give the
Union more specific written information. Although the Arbitrator offered to delay
the issuance of this award pending the final adoption of the police contract, both
parties opposed further delay. Accordingly, the representations made at the
executive session about the new police contract have not been considered herein.
II. ANALYSIS OF THE ISSUES AND THE PARTIES' FINAL OFFERS
A. Introduction
The Village Fire Department operates four fire stations, Stations 7, 8, 9 and 10.
The bargaining unit represented by the Union consists of 87 sworn personnel, 18
Lieutenants and 69 Firefighters. Nine Lieutenants and 33 Firefighters are
paramedics. The Fire Department has three shifts of swom personnel, for whom
the normal work shift is 24 hours long, and the normal work schedule is 24 hours
'Several documents have been offered as exhibits by each party since the last hearing date,
February 5, 1997, without objection by the other parry. These exhibits are hereby admitted into
evidence, including Union Exhibits 75(a) and 75(b), Village Exhibits 12B, 12C, 12D, 13C, 13D,
13E, 14B, 14C, 14D, 15B, 15C and 15D.
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Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
on, 48 hours off. A captain serves as the shift commander and has overall
responsibility for all stations and all personnel assigned to the shift. _
Two other groups of Village employees are collectively represented for bargaining,
a unit of police officers, represented by the Metropolitan Alliance of Police
("MAP"), and a unit of public works employees represented by the International
Union of Operating Engineers Local 150 ("IJOE"). The IUOE and the Village
negotiated their first collective bargaining agreement, effectively September 15,
1996 through April 30, 1999. The police and the Village have negotiated three
collective bargaining agreements, the most recent of which, expiring April 30,
1997, was the product of an interest arbitration award rendered in 1997 by a tri-
partite panel chaired by Arbitrator Elliott Goldstein, Village of Elk Grove Village
and MAP Chapter No. 141, ISLRB No. S -MA -95-11 (Goldstein, Arb.)(1996) ("the
Goldstein Award"). The Village is currently in negotiations with MAP for a
successor agreement.
This proceeding results from an impasse in bargaining between the Village and the
Union for their second collective bargaining agreement. Their first contract, for the
period from May 1, 1993 through April 30, 1996, was the product of both
voluntary agreements and the interest arbitration award issued by a tripartite panel
of arbitrators chaired by Arbitrator Harvey A. Nathan. The contract contained a
reopener provision for employee insurance contributions, deductibles and co-
insurance payments for the 1995-96 fiscal year. The parties bargained over the
1995-96 insurance issues and agreed upon a Memorandum of Understanding dated
December 18, 1995, setting the contributions, deductibles and co -payments for that
year. Although the Memorandum was presented in this proceeding as Joint Exhibit
5, the Memorandum states that the parties agreed that the Memorandum "is being
entered into on a nonprecedential basis."
For the new contract, the parties have reached many tentative agreements, which
appear in this record as Village Exhibit 1. However, the parties have presented 24
issues for resolution. Of the 24 issues presented, the parties agree that Issue Nos.
1 through 19 are economic issues and Issue Nos. 20 through 23 are non -economic
issues. The parties could not agree on whether the shift starting time issue, Issue
No. 24, should be characterized as economic or non -economic, and the question
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Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
was presented to the Arbitrator for determination. On January 20, 1997, I ruled
that the issue is not an economic issue, and the parties have proceeded -accordingly.
As discussed more fully below, the parties in their final offers have effectively
reached agreement on Issue Nos. 12, 14, and 18, and disagree as to whether an
impasse was reached on Issue No. 23, or whether instead the Issue was resolved
in bargaining prior to impasse. In addition, after the parties' designation of issues
and exchange of fmal offers, the General Counsel of the Illinois State Labor
Relations Board ruled that Issue Nos. 8 and 17 do not involve mandatory subjects
of bargaining. The impact of that Declaratory Ruling on this proceeding is
discussed more fully below.
B. Economic Issues
By statute and the parties' stipulation, the Arbitrator must adopt the last offer on
each economic issue which more nearly complies with the following factors, as
applicable:
(1) The lawful authority of the employer,
(2) Stipulations of the parties;
(3) The interests and welfare of the public and the financial ability
of the unit of government to meet those costs;
(4) Comparison of the wages, hours and conditions of employment
of the employees involved in the arbitration proceeding with the
wages, hours and conditions of employment of other employees
performing similar services and with other employees generally:
(A) In public employment in comparable communities;
(B) In private employment in comparable communities:
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Village of Elk Grove Village and IAPF Local 3398
ISLRB No. S -MA -96-86
(5) The average consumer prices for goods and services commonly
known as the cost of living; _
(6) The overall compensation presently received by the employees,
including direct wage compensation, vacations, holidays and other
excused time, insurance and pensions, medical and hospitalization
benefits, and the continuity and stability of employment and all other
benefits received;
(7) Changes in any of the foregoing circumstances during the
pendency of the arbitration proceedings;
(8) Such other factors, not confined to the foregoing, which are
normally or traditionally taken into consideration in the determination
of wages, hours and conditions of employment through voluntary
collective bargaining, mediation, fact -fording, arbitration or otherwise
between the parties, in the public service or in private employment.'
In this case, the parties do not dispute the employer's authority to enter into a
contract containing any of the terms proposed, nor is there any dispute that the
Village has the ability to pay the wages and benefits proposed. indeed, the Union
asserts that the Village's relative fiscal health, as reflected in its general fund
balances of $15,754,818 and $11,655,057, for fiscal years ended April 30, 1995 and
April 30, 1996, respectively, resulted in large part from the consistent payment of
firefighters and lieutenants at less than the highest rates paid in the comparable
communities. The employer's "exceptional ability to pay," the Union argues,
should be considered a factor in tipping the scales toward the union wage
proposals, which only slightly exceed the Village's offers.
The parries also agree that the appropriate group of municipalities to use for
external comparisons is the group of 14 communities designated by the panel
'in the discussion that follows, the factors most determinative of the outcome of this Interest
Arbitration are highlighted. However, all the statutory factors have been considered in reaching
this decision and Award.
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Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
headed by Arbitrator Nathan in the October 1, 1994 award, Village of Elk Grove
Village, ISLRB No. S -MA -93-231 (Nathan, Arb.)(1994) ("the Nathan Award").
They are:
Arlington Heights
Bensenville
Buffalo Grove
Des Plaines
Elgin
Elmhurst
Hoffman Estates
Lombard
Mt. Prospect
Northbrook
Park Ridge
Rolling Meadows
Skokie
Wheeling
Against this background the economic issues must be considered.
1. Issue No. 1 -- Salaries for Firefighters
In brief, the Village's final offer is a 3.5 across-the-board increase effective May
1, 1996, a 3 percent across-the-board increase effective May 1, 1997, and a 3
percent across-the-board increase effective May 1, 1998, while the Union 's final
offer is a 3.8 percent across-the-board increase effective May 1, 1996, a 3.25
percent across-the-board increase effective May 1, 1997, and a 3.5 percent across-
the-board increase effective May 1, 1998.
More specifically, the Union's final offer on salary for firefighters is to revise
Section 14.1 to read as follows:
Section 14.1. Firefighters Wage Schedule.
Effective May 1, 1996, all steps of the salary schedule shall be increased across-the-board
by 3.8 percent. Accordingly, effective May 1, 1996, employees covered by this
Agreement shall be paid on the basis of the following annual salaries:
0
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
Step
Description
Salary
1
Starting
$ 32,417
2
After completion of 1 year
35,369
3
After completion of 2 years
38,327
4
After completion of 3 years
41,280
5
After completion of 4 years
44,237
6
After completion of 5 years
47,190
Effective May 1, 1997, all steps of the salary schedule shall be increased across-the-board
by 3.25 percent Accordingly, effective May 1, 1997, employees covered by this
Agreement shall be paid on the basis of the following annual salaries:
Step
Description
Salary
1
Starting
$ 33,471
2
After completion of 1 year
36,518
3
After completion of 2 years
39,573
4
After completion of 3 years
42,622
5
After completion of 4 years
45,674
6
After completion of 5 years
48,724
Effective May 1, 1998 all steps of the salary schedule shall be increased across-the-board
by 3.5 percent. Accordingly, effective May 1, 1998 employees covered by this
Agreement shall be paid on the basis of the following annual salaries:
Step
Description
Salary
1
Starting
$ 34,642
2
After completion of 1 year
37,796
3
After completion of 2 years
40,958
4
After completion of 3 years
44,114
5
After completion of 4 years
47,273
6
After completion of 5 years
50,429
The Village's final offer on salary for firefighters is to revise Section 14.1 to read
as follows:
7
r
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
Section 14.1. Firefighters Wage Schedule.
Effective May 1, 1996, all steps of the salary schedule shall be increased across-the-board
by three and one-half percent (3.5%). Accordingly, effective May 1, 1996, employees
covered by this Agreement shall be paid on the basis of the following annual salaries:
Step
Description*
Annual Salary
1
Starting
$ 32,323
2
After completion of 1 year
36,267
3
After completion of 2 years
38,216
4
After completion of 3 years
41,161
5
After completion of 4 years
44,110
6
After completion of 5 years
47,054
* Years of service as referred to in this description column refers to
length of service which counts toward completion of the probation-
ary period and which is credited for seniority purposes as defined
in Sections 12.1 and 12.2 of this Agreement.
Effective May 1, 1997, all steps of the salary schedule shall be increased across-the-board
by three percent (3%). Accordingly, effective May 1, 1997, employees covered by this
Agreement shall be paid on the basis of the following annual salaries:
Sten
Description
Annual Salary
1
Starting
$ 33,293
2
After completion of 1 year
36,325
3
After completion of 2 years
39,362
4
After completion of 3 years
42,396
5
After completion of 4 years
45,433
6
After completion of 5 years
48,466
Effective May 1, 1998 all steps of the salary schedule shall be increased across-the-board
by three percent (3%). Accordingly, effective May 1, 1998 employees covered by this
Agreement shall be paid on the basis of the following annual salaries:
Step Description Annual Salary
0
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
1 Starting
$ 34,292
2 After completion of 1 year
37,415
3 After completion of 2 years
40,543
4 After completion of 3 years
43,668
5 After completion of 4 years
46,796
6 After completion of 5 years
49,920
A review of the data from the comparable communities demonstrates that as of
May 1, 1995, the Village neither led nor trailed the pack in base compensation for
Village firefighters. As of May 1, 1995, Village firefighters' maximum base salary
of $45,463 ranked the Village fifth among the comparables. The May 1, 1996,
maximum base salary under the Village's offer, $47,054, would move the Village
up to fourth place, while the Union's offer of $47,320 would move the Village up
to third place, behind only Hoffman Estates and Northbrook:
3Estimate based on 1995 maximum base salary increased by the 4 % increase negotiated for
Arlington Heights police officers.
0
Max. base
5196
Hoffman Estates
549,031.
Northbrook
47,473.
Elk Grove Village (Union offer)
47,320.
Rolling Meadows
47,069.
Elk Grove Village (Village offer)
47,054.
Skokie
46,945.
Des Plaines
46,945.
Arlington Heights
46,880.3
Park Ridge
46,131.
Buffalo Grove
45,500.
Mount Prospect
45,368.
Wheeling
45,171.
Elgin
44,784.
Elmhurst
44,452.
Lombard
44,199.
Bensenville
43,152.
3Estimate based on 1995 maximum base salary increased by the 4 % increase negotiated for
Arlington Heights police officers.
0
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
The data for 1997-8 and 1998-9 are limited. Under the Village's offer, effective
May 1, 1997, the maximum base salary would increase to $48,466; under the
Union's offer, to $48,724. The known salaries for May 1, 1997 in comparable
communities (June 1, 1997 for Rolling Meadows) are as follows:"
Hoffman Estates
$50,625
Rolling Meadows
50,148. (blended rate reflecting 1/1/98 increase)
Elk Grove Village
48,724. (Union offer)
Des Plaines
48,588
Elk Grove Village
48,466. (Village offer)
Wheeling
47,104. (blended rate reflecting 11/1/97 increase)
Elmhurst
46,230
These data indicate at most that both parties' offers for 1997 would maintain Elk
Grove Village's ranking near the middle of the group. The data for May 1, 1998
are even sketchier, showing increases ranging from 2.75% in Skokie to 4.0% in
Wheeling, with Elmhurst and Hoffman Estates _paying increases of 3.0% and
Northbrook paying an increase of 3.25%. Thus, considered as a whole, these
external comparisons do not strongly support one offer over another.
The Union asserts that the comparison of the firefighters' "total compensation" in
those communities favors its offer. Section 14(h)(6) of the Act requires the
arbitrator to consider
[t]he overall compensation presently received by the employees,
including direct wage compensation, wages, holidays and other
excused time, insurance pensions, medical and hospitalization benefits,
the continuity and stability of employment and all other benefits
received.
Such comparisons, although mandated by statute, are difficult to evaluate,
particularly in firefighter groups, because of the wide variation in the terms of
"Where there is a midyear salary increase, total annual base salary is a "blended rate": the
sum of half the pre -increase rate and half the post -increase rate.
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Village of Elk Grove Village and LUT Local 3398
ISLRB No. S -MA -96-86
medical, hospitalization and pension benefits, work schedules, shift length, the
counting of hours worked for overtime, Kelly Days, etc. However, -the Union's
own calculations show that at the maximum salary level in May 1, 1995, Elk Grove
Village was ninth out of the group of fifteen communities in "total compensation,"
which was defined as the sum of maximum base salary, maximum longevity pay
and all other stipends. By this measure, the Village lagged only $440 behind the
median community, Buffalo Grove. This over-all comparison does not strongly
favor one salary offer over the other.
Both parties presented cost -of -living data to support their economic offers.
According to the Union, between their May 1, 1995 increase and December 1996,
firefighters have lost purchasing power in terms of constant dollars by 4.1 % on the
CPI -U (Chicago area) and 4.0% on the CPI -U (U.S. City Average). This data
supports its offer, the Union contends, because the 3.8% first-year increase
proposed by the Union will come closer than the 3.5 % increase proposed by the
Village to bridging that gap.
Another way to consider the numbers is to note that the CPI -U (Chicago) has risen
from 153 in May 1995 to 156.9 in May 1996, a 2.5% annual increase, and to 161.7
in July 1997, a 3% annual increase. (The CPI -U (U.S. City Average), CPI -W
(Chicago) and CPI -W (U.S.City Average) reflect similar trends.) Both the Union's
offer of first and second year increases of 3.8% and 3.25%, respectively and the
Village's offer of increases of 3.5% and 3.0%, would exceed these measures of the
rate of recent cost of living increases to date, and enable to the firefighters to
maintain their purchasing power. Cf., City of Champaign, ISLRB Case No. S -MA -
91 -009 (October 29, 1991).
The use of cost -of -living data here is somewhat clouded by the December 1996
issuance of the Senate Finance Committee's Advisory Commission report entitled,
"Toward a More Accurate Measure of the Cost of Living." While the Commission
has concluded that the CPI will overstate changes in the true cost of living over the
next few years, and estimates "the size of the upward bias looking forward (as] 1.1
percentage points per year," I agree with Arbitrator Herbert Berman that the CPI
data remains the best cost -of -living data available at the moment, and must be
considered by the parties and the arbitrator. City of Batavia. ISLRB No. S -MA -95 -
it
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
15 (1996)(despite the Advisory Commission report, the arbitrator "cannot ignore
the fact that the only reasonably accurate yardstick available to the parties and the
one most universally relied upon by unions, employers and arbitrators,—is one of the
BLS cost of living indices, primarily the CPI -U...") In this case, it is apparent that
both parties' offers exceed increases in cost of living since the last contractual
increase, whether measured by local or national figures. Thus, the cost -of -living
figures do not strongly support one offer over another, although they indicate that
it is not necessary to choose the higher Union offer in order to preserve (as
opposed to maximize) the firefighters' purchasing power.
We tum then to internal comparisons. Under the contract that expired on April 30,
1997, Village police officers were awarded the Village's final offer of a 3.5%
increase effective May 1, 1996. This is the same as the Village's final offer to the
firefighters for that period. The collective bargaining agreement for the Village's
public works employees calls for a 3.5% increase September 15, 1996, a 3%
increase May 1, 1997, and a 3% increase May 1, 1998. These increases equal
those offered here by the Village, except that the firefighters' increase would
become effective on May 1, 1996, rather than on September 15, 1996. The
Village's unrepresented employees received a 3.5% increase effective May 1, 1996,
again equal to the Village's offer to the firefighters. The Union's offer for the fust
year of the contract exceeds the 1996 increases for all other Village employees by
0.3%, while its offer for the second and third years of the contract exceed the
increases for public works employees by 0.25% and 0.5% respectively. The
Village asserts that the greater "parity" between its offer and the increases enjoyed
by employees represented by the IUOE and the MAP supports its offer.
The Union, on the other hand, focusses on another internal comparison, contending
that its higher first-year offer of $47,190 ($136 higher than the Village's offer of
$47,054) is necessary to maintain an appropriate approximate differential of $130
between the maximum base salary for firefighters and for police officers. That
differential increased from $126 in FY 1991-1992 to $137 in FY 1993-1994,
jumped to $1,239 in FY 1994-1995 (when the police officers were barred from
receiving an increase by operation of Section 140)), and then dropped back to $257
for FY 1995-6. The Union's offer would reestablish what the Union sees as the
historic differential of $130, while the Village's offer would result increase the
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Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
differential slightly to $266.
Even if I were to agree that this record demonstrates an established differential of
$130, I do not find the Union's argument persuasive. Arbitrators Nathan and
Briggs have both considered at great length the importance and drawbacks of
considerations of "panty" both in negotiations and in arbitration. See, Nathan
Award, pp. 22 - 28; Village of Arlington Heights, ISLRB No. S -MA -88-89 (Briggs,
Arb.)(1991), quoted in the Nathan Award at pp. 24-5. Here, both parties claim to
rely on "panty" -- the Union seeking to preserve an absolute dollar differential, the
Village trying to preserve approximate percentage equality in increases.
Complicating the picture is the fact that the "traditional parity" between the police
and firefighters in Elk Grove Village is no longer a product of the parties'
voluntary collective bargaining and their reasoned assessments of the equities
involved. Instead, the relationship between the police and firefighter compensation
is now a product of the determinations of first, Arbitrator Nathan, for the
firefighters unit, and more recently, Arbitrator Goldstein, for the police unit.
r
Under these circumstances, the best the arbitrator can do is to try to preserve the
existing relationship between the Village and the firefighters so that the interest
arbitration award does not unduly interfere with the natural process of collective
bargaining that will recommence for the next contract period. That relationship is
not well -described in terms of an absolute dollar differential between the police and
firefighters, which has varied widely over the past few years, as discussed above.
If anything, the Village's offer better preserves parity by offering the firefighters
same percentage increases being given to the police and other employees . -5
'However, as Arbitrator Briggs observed, in City of Elmhurst and IAFF Local 3541 (April
20, 1997),
The Arbitrator recognizes that the philosophy behind the City's final offer, if
carried to its logical conclusion over many ensuing years would cause the salaries
of [the municipality's firefighters) to fall farther and farther behind those of its
Police Officers. That is, assigning each group the same percentage increases at
each step each year would favor Police Officers over the long term because such
increases would be calculated on higher base salaries than those of Firefighters
(continued...)
13
Village of Elk Grove Village and lAFF Local 3398
ISLRB No. S -MA -96-86
The external comparisons demonstrate that the Union's increase is not essential to
keep the firefighters' compensation in line with their historic position within the
range of comparable communities, although on the other hand the Union's offer
would not be outside the range of reasonableness. The cost -of -living data
demonstrates that the Village's offer is sufficient to preserve the firefighters'
current economic status, and that the Union's offer, particularly during the fust
year, exceeds the recent increases in the cost of living, even if the purported
overstatement by the CPI is ignored. Where the Union's and Village's offers are
both within the bounds of reasonableness by these measures, the internal compari-
sons finally tip the balance toward the Village. Considering all of the applicable
factors, I find the Village's offer to be more reasonable than the Union's on this
issue.
2. Issue No. 2 -- Salaries for Lieutenants
The Union's final offer is to delete the current Section 14.2, eliminating the merit
pay system for Lieutenants described in that Section, and substitute the following
salary structure effective May 1, 1996, with across-the-board increases of 3.25
percent effective May 1, 1997, and 3.5 percent effective May 1, 1998:
Step Description Salary
1 Starting $ 49,549.00
2 After completion of 1 year 51,009.00
3 After completion of 2 years 52,649.00
4 After completion of 3 years 53,927.00
The Village's final offer is to retain the merit pay system, and to substitute for the
current Section 14.2 the following:
5(...continued)
positioned similarly on the salary grid. At some point, the balance will need to
be redressed. But that issue is best resolved between the parties themselves
through free collective bargaining.
14
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
1996-97
Effective May 1, 1996, the pay range maximum for fire lieutenants shall be
increased by four and one-half percent (4.5%) to $55,249. No lieutenant can
receive an annual wage below the minimum of the range nor above the maximum
of the range. All lieutenants shall be paid a salary that is at least 5% higher than
the top step salary of firefighters.
The merit adjustments shall be between 0 percent and 5.0 percent. Employees
whose annual average evaluation from their immediate supervisor on a numeric
standard falls "below standards" shall receive a merit adjustment of between 0
percent and 3.25 percent. Employees whose annual average evaluation from their
immediate supervisor on a numeric standard "meets standards' shall receive a
merit adjustment of 3.5 percent. Employees whose annual average evaluation
from their immediate supervisor on a numeric standard "exceeds standards' shall
receive a merit adjustment of 4 percent. Employees may also be given an
additional merit adjustment of up to 1 percent on the basis of an evaluation by the
fine chief.
1997-98
Effective May 1, 1997, the pay range maximum for fire lieutenants shall be
increased by three percent (3 %) to $56,907. No lieutenant can receive an annual
wage below the minimum of the range nor above the maximum of the range. All
lieutenants shall be paid a salary that is at least 5% higher than the top step salary
of firefighters.
The merit adjustments shall be between 0 percent and 4.5 percent. Employees
whose annual average evaluation from their immediate supervisor on a numeric
standard falls "below standards" shall receive a merit adjustment of between 0
percent and 2.75 percent Employees whose annual average evaluation from their
immediate supervisor on a numeric standard "meets standards' shall receive a
merit adjustment of 3 percent. Employees whose annual average evaluation from
their immediate supervisor on a numeric standard "exceeds standards' shall
receive a merit adjustment of 3.5 percent. Employees may also be given an
additional merit adjustment of up to 1 percent on the basis of an evaluation by the
fire chief.
15
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
1998-99
Effective May 1, 1998, the pay range maximum for fire lieutenants sliall be
increased by three percent (3 %) to $58,614. No lieutenant can receive an annual
wage below the minimum of the range nor above the maximum of the range. All
lieutenants shall be paid a salary that is at least 5% higher than the top step salary
of firefighters.
The merit adjustments shall be between 0 percent and 4.5 percent. Employees
whose annual average evaluation from their immediate supervisor on a numeric
standard falls "below standards" shall receive a merit adjustment of between 0
percent and 2.75 percent Employees whose annual average evaluation from their
immediate supervisor on a numeric standard "meets standards" shall receive a
merit adjustment of 3 percent Employees whose annual average evaluation from
their immediate supervisor on a numeric standard "exceeds standards" shall
receive a merit adjustment of 3.5 percent. Employees may also be given an
additional merit adjustment of up to 1 percent on the basis of an evaluation by the
fire chief.
Fire lieutenants were paid on a merit system before they began bargaining
collectively with the Village. In the arbitration that resulted -An the first contract,
where both parties proposed to continue to increase a merit system for part of the
lieutenants' increases, Arbitration Nathan acknowledged that any such system must
have objective and credible evaluation processes. The Union asserts that the
adoption here of its pay step plan and the elimination of merit pay will maintain
an equitable pay arrangement, while eliminating the current merit pay system that
it contends is "unfair and disproportionate."
The Union cites perceived inequities of the Village's merit system as grounds for
its elimination. In 1995 - 1996, the Village did not pay any lieutenant the
maximum allowed under the contract, which was almost $1000 higher than the
salary of the highest-paid lieutenant. Lieutenant Goostree ranked highest in
evaluations, but received a merit increase of only 1.19 percent out of a possible
1.75 percent. The other lieutenants were paid from $160 to $3796 less than that
highest-paid lieutenant. Lieutenant Goss testified that it was not possible, as a
practical matter, for a lieutenant to participate in all of the activities that would
garner the full 1.75 percent increase.
ICS
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
According to the Union, in the two other comparable communities with merit pay
systems for lieutenants, all but two lieutenants received top pay. The Union also
asserts that the length of time to reach maximum pay in the Village is excessive.
However, the Village's current merit award practices are consistent with its
historic administration of merit systems. In the past, the Village has not awarded
merit increases at the maximum amount possible. See, e.g., Nathan Award, p.
57 - 8. Even as Arbitrator Nathan adopted the Union's offer for 1993 - 1994, he
observed, "[W]e have given little weight to the 2% (merit increase), believing that
it will not amount to much of anything." Id., p. 58. Thus, the system now in place
specifically incorporates the Village's practice of not awarding the maximum merit
increase possible, even to the lieutenant with the highest evaluation.
The Union's concern that the current merit system has not operated objectively
echoes complaints made about the old system at the previous arbitration. Under
that system, the Chief considered not only employee evaluations but also "a range
of factors beyond the evaluations" that "may have appeared to some as being
( without objective standards," according to Arbitrator Nathan. In adopting the
Village's plan for 1994 -1995, the Arbitrator concluded that the new plan would
address the Union's concerns. Id., p. 63.
Under the current system, lieutenants have been evaluated against a series of
reasonably objective standards.' The Union complains that employees were not
"For 1993 - 1994, the "regular" merit increase was based on the average of the two previous
performance evaluations, with the highest -ranked lieutenant receiving 1.10 percent, down to the
lowest -rank lieutenant who received 0.33 percent. U. Ex. 2I. Although the documentation
explaining the 1994 - 1995 merit increases was not available, it appears that all lieutenants
received both a "general" increase as well as a "regular' merit increase based on the average of
the two previous performance evaluations, except that raises for the highest -ranked lieutenant,
Goostree, and for lieutenants Deana, Gauss, Goss, Langland, Miller and Rohrer, were limited to
increases that put them at the top of the range. U. Ex. 2J. Finally, for 1995 - 1996, the
Department applied 14 criteria in determining regular merit pay, weighted to reflect their
importance to the Fire Department: Acting Captain, Budget Activity, Special Projects, Team
Leader, Committee Chairman, Station Off -leer, ISD, Follows and Enforces Policies and
Procedures, Loyal and Supportive of Management, CPR Instructor, Team Member, Committee
(continued...)
17
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
told in advance what those standards would be nor counseled as to areas of
possible improvement, and that the standards were such that it was impossible as
a practical matter for any lieutenant to achieve the maximum rating. While
advance notice and counseling may be desirable features of a performance
evaluation program, there is no evidence that their absence here resulted in an
unfair or arbitrary application of the merit increase system.
The reasonableness of its offer to eliminate merit pay is buttressed, the Union
contends, by the substantial wage concessions embodied in its plan. That wage
concessions have been offered cannot be denied. The Village's proposal, which
continues merit pay, would increase the maximum pay rate for lieutenants to
$55,249 effective May 1, 1996; to $56,907 effective May 1, 1997, and to $58,614
effective May 1, 1998. Under the Union's proposal the maximum salary effective
May 1, 1996 would be $53,927, $1,322 or 2.4 percent less than the Village's
maximum; effective May 1, 1997, the maximum under the Union offer would be
$55,680, $1,227 or 2.16 percent less than the Village's maximum; effective May
1, 1998, the maximum under the Union's offer would be $57,629, $985 or 1.7
percent less than the 1998 maximum under the Village's offer. This concession,
according to the Union, will also increase the differential between fire lieutenant
and police sergeant wages. It is true that Village police officers in 1987 successful-
ly offered wage concessions in their first contract negotiations in return for an
agreement to eliminate the merit pay system. But that situation offers little
guidance here, where the Union seeks an arbitrator -imposed, rather than voluntarily
negotiated, change.
In contrast, the Village offers to increase the pay range maximum by 4.5 percent
in 1996, by 3 percent in 1997 and by 3 percent in 1998, preserving the requirement
that all lieutenants be paid at Ieast 5 percent more than the top step salary for
firefighters. The minimum pay would therefore increase to $49,407 (105 percent
of $47,054) in 1996, $50,889 (105 percent of $48,466) in 1997 and $ 52,416 (105
6( ... continued)
Member, Fire Officer I, Fire Officer H. U. Ex. 2K Under these standards, the newest lieutenant,
also the lowest -ranked, received a merit increase of only 0.03 percent, while the highest -ranked
received a merit increase of 1.19 percent. U.Ex. 2L.
In
Village of Elk Grove Village and [AFF Local 3398
ISLRB No. S -MA -96-86
percent of $49,920) in 1998. Increases would be as follows:
Year "Below standards' "Meets standards" "Exceeds standards" Max. add'I merit
96-97
0-3.25%
3.5%
4%
1%
97-98
0-2.75%
3%
3.5%
1%
98-99
0-2.75%
3%
3.5%
1%
The maximum base salaries for 1996 - 1997 in the comparable communities, to the
extent they are known are as follows:
Lombard
$57,592.
Mt. Prospect
Rolling Meadows
57,479.8
Skokie
Northbrook
57,073.
Elmhurst
Wheeling
57,072.10
Elgin
Park Ridge
56,265.1'
Bensenville
Des Plaines
55,826.
Buffalo Grove
Hoffman Est.
55,186.
Arlington His.
55,178.'
53,541.
53,222.9
51,852.
51,068.12
51,562.13
unknown, but at
least $54,79214
'The figure is an average of $55,198, provided by the Union (U. Ex. 20), and $55,171,
provided by the Village (V. Ex. 46). The record does not indicate the source of the discrepancy,
which is nominal.
'Reflects increase to $57,479 effective January 1, 1997.
'Based on the award of Arbitrator Briggs in City of Elmhurst and IAFF Local 3541 (April
20, 1997).
1OReflects increases on November 1, 1996.
11This figure is from Village Ex. 46; the Union provided only a 1995-1996 figure.
12Reflects an average of the Union's figure of $ 50,067 (U. Ex. 20) and the Village's figure
of $52,070 (V. Ex. 46).
"An average of $51,825, from Union Ex. 20, and $51,298, from Village Ex. 46.
14See U.Ex. 20.
19
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
The average 1996-1997 maximum base salary, without considering Arlington
Heights or the Village, is $54,840. The Village's offer would create -a maximum
base salary of $55,249, $600 above the average and ranked at seventh out of the
13 other communities for which 1996 - 1997 figures are in the record. This is
actually an improvement from 1995 - 1996, when the Village maximum of $52,870
placed the Village tenth out of the fifteen comparables, and $ 200 below the
average maximum base salary (U. Ex. 2H(i)).
The new maximum will continue the pattern that the maximum police sergeant
salary ($56,394) exceeds the maximum fire lieutenant salary ($55,249). However,
this is not only consistent with the history of these two groups within the Village
(cf. Nathan Award, p. 27 - 28), but is also consistent with the pattern among the
comparable jurisdictions: In eleven of the comparable communities, the maximum
base salary for police sergeants exceeds the maximum base salary for fire
lieutenants.
In light of these considerations, the other factors enumerated in the Act, and the
absence of sufficient grounds to adopt the Union's radical restructuring of
compensation for lieutenants, the Village's proposal for lieutenant's salaries is more
reasonable than the Union's.
3. Issue No. 3 -- Paramedic Stipend
The 1995-1996 paramedic stipend is $2,225, as a result of the Nathan Award. The
Union's final offer is to revise Section 14.4 to increase the paramedic stipend to
$2,600.00 per year effective May 1, 1996, to $2,700.00 per year effective May 1,
1997, and to $2,800.00 per year effective May 1, 1998. The Village's final offer
is to revise that Section to increase the paramedic stipend to $2,400.00 per year
effective May 1, 1996, to $2,500.00 per year effective May 1, 1997, and to
$2,600.00 effective May 1, 1998.
The 1995 - 1996 and 1996 - 1997 maximum paramedic stipends among the
comparable communities, are as follows:
20
Village of Elk Grove Village and IAFP Local 3398
ISLRB No. S -MA -96-86
Ave. (w/o Elk Grove Village)$ 2434 21 2559.22
Thus the 1995 - 1996 stipend of $2225 placed the Village eighth out of the 13
comparable communities having a stipend, approximately $200 behind the average.
The average for 1996 - 1997 of $2559 is probably low, because it was calculated
"Reflects increase on November 1, 1995.
16Based on the middle of the range for paramedic stipends of $1900 to $2900 -
"Based on the middle of the paramedic stipend range of $2000 to $3000.
18Reflects increase January 1, 1997.
19Reflects December 24, 1995 increase.
20Assumes no increase when contract expired December 21, 1996.
21This figure differs from both the Union's calculation (U. Ex. 1D) and the Village's (cf. V.
Ex. 54). The data used are taken directly from the collective bargaining agreements in the record
wherever possible.
22Assumes that there is no increase in the Arlington Heights and Skokie stipends.
21
95-96
96-97
Arlington Hu.
$ 3438.
N/A
Des Plaines
3203.
3310.
Northbrook
2720.
2796.
Wheeling
2572.
3460.
Park Ridge
2454.15
2537.
Lombard
2450.16
2500.17
Rolling Meadows
2400.
2450.'$
Elgin
2175.19
2250.24
Skokie
2150.
N/A
Hoffman Est.
2000.
2000.
Mt. Prospect
1216_
1254.
Bensenville
none
none
Buffalo Grove
none
none
Elmhurst
none
none
Ave. (w/o Elk Grove Village)$ 2434 21 2559.22
Thus the 1995 - 1996 stipend of $2225 placed the Village eighth out of the 13
comparable communities having a stipend, approximately $200 behind the average.
The average for 1996 - 1997 of $2559 is probably low, because it was calculated
"Reflects increase on November 1, 1995.
16Based on the middle of the range for paramedic stipends of $1900 to $2900 -
"Based on the middle of the paramedic stipend range of $2000 to $3000.
18Reflects increase January 1, 1997.
19Reflects December 24, 1995 increase.
20Assumes no increase when contract expired December 21, 1996.
21This figure differs from both the Union's calculation (U. Ex. 1D) and the Village's (cf. V.
Ex. 54). The data used are taken directly from the collective bargaining agreements in the record
wherever possible.
22Assumes that there is no increase in the Arlington Heights and Skokie stipends.
21
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
using the 1995 - 1996 figures for Arlington Heights and Skokie. Nonetheless, it
is apparent that the Village's offer for 1996 - 1997 of $2400 would bring the
Village's stipend closer to the average, and leave the Village eighth among the
comparables, while the Union's offer of $2600 would move the Village up three
places to fifth, ahead of Park Ridge.
This is a close question, and although the arbitrator ordinarily would be reluctant
to adopt an economic offer that so alters the Village's standing among the
comparables, there is a significant operational consideration favoring the greater
increases. The Union has made a non -economic proposal to limit the length of time
it takes for the Village to grant firefighter requests to decertify as paramedics. The
record reflects that there is a substantial delay between the submission of a request
and actual decertification, and that the delay has caused sufficient dissatisfaction
for the Union to place it in issue here. Just as arbitrators consider the amount of
employee turnover as a measure of the appropriate salary offer, it is appropriate
here to encourage firefighters not to seek decertification, and to alleviate the
apparently unavoidable waiting period for those who seek to decertify, by adopting
the Union's greater offer on paramedic stipends. Particularly where there is no
question that the Village has the ability to pay the higher Stipends, no issue of
internal comparability that would cause complications for the Village with other
employee groups, and yet a public interest in encouraging and retaining skilled and
experienced paramedics, the Union's offer is more reasonable and will be adopted.
4. Issue No. 4 -- EMT -B Stipend
The Union's final offer is to amend Section 14.4 to add the following paragraphs:
(d) Effective May 1, 1996, employees who are required to undergo training and
certification for the position EMT -B shall receive an EMT -B pay stipend of
$250.00 per year.
(e) Effective May 1, 1997, employees who are required to undergo training and
certification for the position EMT -B shall receive an EMT -B pay stipend of
$350.00 per year.
22
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
(f) Effective May 1, 1998, employees who are required to undergo training and
certification for the position EMT -13 shall receive an EMT -B pay stipend of
$500.00 per year. —
The Village opposes any EMT -B stipend.
The EMT -B certification is a new credential, which is replacing the EMT -A
classification. For at least 15 years, all firefighters and lieutenants who are not
paramedics have been required to be EMT -A's. By requirement of the state and
the Northwest Community Hospital EMS System in which the Village participates,
all EMT -A's must become EMT -B's, with the training to be completed by June
1997. The record reflects that EMT -B's will be certified to perform a variety of
tasks in addition to those performed by EMT -A's: To assist a patient to take
cardiac mediation already prescribed for the patient; to assist in administering
medications necessary to treat a respiratory or allergic response emergency if the
patient already has a prescription for the medication; to assist in intubations
(although the Northwest Community Hospital EMS System is not requiring this
task of EMT -B's); and to use automated external defibrillators (AED's), although
the Village does not currently have any AED's and the Northwest Community
Hospital EMS System anticipates very little use of AED's at present. EMT -B's
also receive upgraded training in patient assessment techniques. Twenty-four hours
of training is required to upgrade an EMT -A to EMT -B. Despite these changes,
EMT -B's, like EMT -A's, remain subject to the judgment and direction of
paramedic(s) on the scene.
The Village has never paid an EMT -A stipend, and a review of the anticipated
changes caused by the new certification suggests that the new tasks that EMT -B's
will perform will differ only slightly from those already performed by EMT -A's.
The extra duties do not on their own appear to warrant the creation of an entirely
new stipend.
Only two comparable communities have stipends analogous to the stipend sought
by the Union: Elmhurst, which has a $400 stipend for EMT -A, and Lombard,
which has a stipend of $450 for "Emergency Medical Technician." Those
jurisdictions have maximum base salaries significantly less than the Village's, and
there is no reason for the Village to break away from the majority of the
23
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
comparables to join Elmhurst and Lombard on this point. Given that there is so
little support among the comparables for any EMT stipend, the Union's offer is not
reasonable. The Village's offer is adopted.
5. Issue No. 5 -- Retroactivity
The Union's final offer is to amend Section 14.6 by substituting the date "May 1,
1996" for the date "May 1, 1993" in the first and second sentences of the section.
Thus, under that offer, Section 14.6 would read:
The increases in salaries for both firefighters and lieutenants and the
increases in the paramedic stipend shall be retroactive to the effective
dates specified herein for employees still on the active payroll on the
effective date of this Agreement, provided that any employee who
retired after May 1, 1996 but before the effective date of this
Agreement shall also be eligible to receive retroactive pay based on
the hours worked between May 1, 1996 and the date of retirement.
Payment shall be made on an hour for hour basis for all regular hours
actually worked since May 1, 1996, as well as all hours of paid leave
and vacation, holiday pay or overtime hours between May 1, 1996,
and the effective date of this Agreement. In calculating overtime, paid
time off for vacations and holidays shall be counted as hours worked
solely for the purpose of determining eligibility for overtime pay.
The Village's final offer is as follows:
The increases in salaries shall be retroactive to the effective dates
specified herein, i.e., May 1, 1996 for employees still on the active
payroll on the effective date of Arbitrator Kohn's award, provided that
any employee who retired on or after May 1, 1996 but before the
effective date of Arbitrator Kohn's award shall also be eligible to
receive retroactive pay based on the hours worked between May 1,
1996 and the date of retirement. Payment shall be made on an hour
for hour basis for all regular hours actually worked since May 1, 1996,
as well as all hours of paid leave and vacation between May 1, 1996,
24
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
and the effective date of Arbitrator Kohn's award. Retroactivity shall
not be paid on any non-FLSA overtime hours worked between May
1, 1996 and the effective date of Arbitrator Kohn's award.
In essence, the Village seeks to limit its recalculation of compensation due for
overtime work to those overtime hours earned pursuant to the Fair Labor Standards
Act. This is a variation from the calculation required under the previous contract,
which included all overtime hours. Thus, on this issue, the Village seeks to alter
the status _quo.
The present language was drafted by the Village but reflected an agreement reached
between the parties. Nathan Award, p.122. The Village asserts two reasons why
this language should be changed -- the "administratively burdensome" task of going
back more than one year to recalculate overtime compensation, and the support of
both intemal and external comparisons. Village Human Resources Officer Richard
Olson tested generally that the task of identifying and recomputing a variety of
different types of overtime drastically increases the Village's problems in
calculating amounts due retroactively, and noted that it is difficult to make these
calculations and run the payroll at the same time. As an infernal comparison the
Village notes that the IUOE Local 150 unit did not get any retroactivity at all for
the period from May 1, 1996 to September 15, 1996. Among the 14 comparables,
Hoffman Estates' contract did not provide any retroactive recalculation, but did
provide a lump sum "incentive bonus" that the Village asserts was in lieu of
retroactivity. Elmhurst provided no retroactivity for the period from May 1, 1993
to January 1, 1994, but also paid a lump sum payment upon ratification of the
contract that expired April 30, 1996.
The Union responds by noting that the Village voluntarily agreed to recalculate
retroactively all overtime in the last arbitration proceeding, and has the burden of
demonstrating compelling reasons to change that agreement. The Union also notes
that comparables Des Plaines, Elgin, Northbrook and Wheeling all have contracts
requiring the recalculation of compensation for all overtime hours.
Indeed, in the interim between the close of the hearing and the issuance of this
award, Arbitrator Steven Briggs has issued his award in Village of Elmhurst and
25
Village of Elk Grove Village and IA -T Local 3398
ISLRB No. S -MA -96-86
IAFF Local 3541 (April 20, 1997), adopting the Union's position on retroactivity
over a Village proposal that would have excluded retroactivity for overtime hours.
Even though the Village's proposal would have continued the pracrice followed
under the parties' previous contract (where a lump sum payment was paid rather
than retroactive increases for overtime hours), Arbitrator Briggs found "no
compelling reason to restrict such retroactive salary increases by the exclusion of
overtime hours." Id., p. 23. He observed, id.:
After all, Article VII of the current contract reflects the parties'
agreement that overtime hours are worth one and one-half times the
regular straight time hourly rate. If that rate is subject to a retroactive
increase then pay for overtime hours worked should be raised
accordingly.
Accord, Village of Arlineton Heights, ISLRB No. S -MA -88-59 (Briggs, Arb.)
(1991)(if straight time rates are being adjusted retroactively, i.e., there has been an
agreement or determination that the prior rate(s) were outdated, "[i]t therefore
seems reasonable to conclude that the rates at which they were paid for their
overtime work were also outdated" and overtime pay should also be recalculated).
Arbitrator Briggs' reasoning may be inapplicable in some circumstances, but the
Village has failed to demonstrate that the recalculation process is so onerous as to
provide such a circumstance.
The external comparables support the Union's, rather than the Village's, proposal.
In fact, not one comparable community distinguishes between FLSA and non-FLSA
overtime for the purposes of retroactivity. Even where retroactivity was not paid,
the communities of Hoffman Estates and Elmhurst (under its contract that expired
in 1996) paid a lump sum payment in lieu of all retroactivity. No similar Cluid pro
quo is offered here. Internal comparisons are no more helpful: The police
received retroactivity on all overtime, except where they were barred from any
increase during the first year of their 1994 -1997 contract by operation of Section
140) of the Act. Goldstein Award, pp.71-2. The Village's IUOE unit, whose
members work 8 -hour shifts, agreed to forego any increase whatsoever from May
1 to September 15, 1996, but that provision was not imposed by an impasse
arbitration panel, and did not distinguish between straight time and overtime hours,
26
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
or among different types of overtime. That the union may have agreed to forego
retroactivity as part of its direct collective bargaining strategy does not indicate that
a similar provision should be imposed by the Arbitrator here. As imposed by the
Arbitrator here, a restriction on retroactivity would unduly punish the bargaining
unit members for both parties' failure to avoid impasse. Thus, on balance, the
Union's offer on retroactivity is more reasonable and shall be adopted.
6. Issue No. 6 -- Cost of Medical and Dental Insurance
The Union's final offer on the cost of medical and dental insurance is to delete the
first two paragraphs and the last paragraph of Section 15.2 and add the following
to that Section:
Effective at the first month following ratification of this Agreement or
the effective date of the interest arbitration award concerning this
Agreement, which ever is applicable, the preferred provider program
in effect for every Village employee will be implemented for
employees covered by this Agreement, and employees will be required
to pay contributions of $ 32.50 for employee coverage, $ 68.34 for the
employee plus one dependent, and $ 74.36 for the employee plus two
or more dependents. These will be monthly payments. Employees
covered by the health plan, for all services not included in the PPO,
shall have a deductible of $ 300 per person per year for single
coverage and a maximum family deductible of $ 900 per year. The
co-insurance payment under the health plan shall be paid by the
employer at the rate of 80% for the first $ 2,000 and 90% for the
second $ 2,000. The employee shall pay 20% of the first $ 2,000 and
10% of the second $2,000. The maximum out-of-pocket cost shall be
$ 900 for each family member up to maximum of $ 2,700. For HMO
coverage, the employee cost shall be the cost in effect for all Village
employees as of May 1, 1996.
The Village's final offer is to revise the first paragraph of Section 15.2 to read as
follows:
27
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
Effective May 1, 1996, the Village will contribute 85 percent of the
designated premium costs of participation in the Village- plan
(including the dental plan) for single, singe plus one dependent, and
family coverage or 85 percent of the cost of participation in one of the
HMO's offered by the Village for single, single plus one dependent
and family coverage and the employee shall contribute 15 percent of
the costs of the program and coverage selected.
The Village also offers, "if it is determined that the Arbitrator has jurisdiction to
decide the additional items relating to the deductibles and co -pays," to revise the
third paragraph of Section 15.2 to read as follows:
Employees covered by the health plan, for all services not included in
the PPO, shall have a deductible of $ 300.00 per year for single
coverage and a maximum family deductible of $ 900 per year. The
co-insurance payments under the health plan shall be paid by the
employer at the rate of 80 percent for the first $ 5,000.00. The
maximum out-of-pocket expense for each eligible participant shall be
$ 1,300.00 (maximum of three or $ 3,900 regardless of family size).
Under the prior contract, as established by the Nathan Award, the employee
contribution rate remained a fixed dollar amount for 1993 - 1994 and 1994-1995,
and became eligible for a Village -wide PPO that provided for deductibles of $300
per family member with a $900 maximum, and co-insurance payments of 20% on
the first $2,000 and 10% on the second $2,000, with an out-of-pocket maximum
of $900 per employee. There was a reopener for 1995 - 1996, as a result of which
the parties entered into a Memorandum of Agreement (Jt. Ex. 5) that states in part:
The parties agree that this Memorandum of Agreement is being
entered into [on a] nonprecedential basis. Neither party may rely upon
this Memorandum of Agreement to support future health care
proposals and a Labor Arbitrator, in any subsequent interest arbitration
proceeding, may not rely upon this Memorandum of Agreement.
28
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
In other words, the Memorandum itself states that this Arbitrator is required to
ignore its terms. The Village asserts that by making the Memorandum a Joint
Exhibit, the Union has waived the right to bar my consideration of its terms. The
submission of an exhibit redacted to show only the language quoted certainly
would have avoided the question now. However, the Union preserved its objection
vigorously at the hearing, and I hold that I must abide by Paragraph 2 of the
Memorandum.' I cannot even compare the parties' offers to the terms set by the
Memorandum, and except to note the fact that the parties negotiated successfully,
I do not rely on the Memorandum in any way.
In effect the Union's offer would maintain the system of fixed dollar contribution
levels used in the first two years of the previous contract, although the amount
would increase from $30.02 for single coverage and $68.64 for employees plus two
dependents in 1993 - 1995, to $34.50 and $74.36 respectively, while the Village
would change to contribution levels determined as a percentage of the premium.
The Union also proposes to retain employee co-insurance payments at their 1993
- 1995 levels and to increase out-of-pocket maximums above their 1993 - 1995
levels. The parties are agreed that the deductibles shall be $300 per year per
covered individual up to a maximum of $900 per year per family. The Village's
offer tracks the terms now in effect for all other Village employees, including those
represented by MAP and IUOE Local 150.
The Village's central argument in support of its offer is this internal consistency.
To permit the firefighters and lieutenants to enjoy better medical and dental
coverage terms than all other Village employees would be unjustified, inequitable
and unfair, the Village asserts. Indeed, Arbitrator Goldstein was convinced by this
internal comparability to accept the Village's insurance proposal for the police
bargaining unit. Goldstein Award, pp. 95-96. He was particularly concerned about
avoiding the "administrative difficulties" that the Village would face under a
multiplicity of separate and distinct health insurance programs. As a result of his
Award and the WOE contract, the Village proposal would establish a uniform
27In particular, counsel for the Union promptly withdrew an explicit reference to other terms
of the Memorandum (Tr. 205) when asked if he was waiving its nonprecedential nature. (Tr.
207.) I therefore disregard the reference made at Tr. 205.
29
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
system covering the police and public works bargaining units as well as the
unrepresented employees.
The same internal comparison was presented to Arbitrator Nathan in the 1994
interest arbitration. However, he found that "there is no internal comparability
here," because the Village had not offered to grant the firefighters access to the
more economical PPO plan offered to other Village employees, and because the
police were working under an expired contract. These factors are no longer
present, and the counterbalances to internal comparability are far weaker at this
time. In sum, internal comparability now strongly supports the Village's offer,
even though it represents a significant modification of the 1993 - 1995 benefit
structure. Accord, City of Elgin and MPA Unit #54, (Briggs, Arb.)(June 25, 1995)
p.14.
The Union argues that the Village's proposal is a "breakthrough" offered without
a countervailing quid fro -quo to justify the change. In particular, the Union
suggests that there is no evidence that significant cost increases warrant any
increase in employee costs. The Union cites the testimony of Village Human
Resource Officer Richard Olson that the Village is now reaping the benefit of
various cost savings benefits as reason to avoid any increased cost for employees.
However, the cost savings cited would inure to the employees in two ways: First,
several elements of the "cost containment" programs, e.g. the vision plan and the
prescription plan, are cost savings directly to the participating employees. Second,
if the benefits costs decrease, the total premiums should decrease or increase more
slowly, and a percentage -based employee contribution will pass that impact on to
the employees.
The Union also objects to the retroactive nature of the Village's proposal.
However, the Village will also pay salary increases retroactively, so the impact of
the retroactive change in premiums should not be as draconian as might be the case
if there were no retroactive increases to offset this retroactive change. Nonetheless,
this is a significant consideration, and might be definitive were the internal
comparisons not so compelling in support of the Village's offer.
Comparing the data on health plan costs from the comparable communities is one
1%
Village of Elk Grove Village and L4FF Local 3398
ISLRB No. S -MA -96-86
of the more complex tasks in this case -- the benefit plans differ, the. options
available to employees differ, and the methods of calculating employee costs and
contributions vary. It is still true, as it was in 1994, that "The features and costs
of medical insurance in the comparable communities go every which way." Nathan
Award, p. 95. Cf. City of Batavia, ISLRB No. S -MA -95-15 (Berman, Arb.)
(1996)("Because of many differences, tangible and intangible, among health -
insurance plans, including differences in coverage, out-of-pocket costs (deductibles,
co -payments and maximum limits), claims adjustment policies and practices and
health provider acceptability, it is difficult to compare different insurance plans.")
Nonetheless, the Village's evidence gives the following employee contribution rates
for family coverage (interpreted as employee plus two dependents where there are
multiple family coverage levels):
31
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
Medical Dental
Total
Lombard
$ 86.62
$ 53.41
$140.03
Bensenville
78.002"
40.05
118.05
Rolling Meadows
47.00
69.21
116.21
Park Ridge
60.00'
25.00
85.00
Skokie
81.27
6.10
87.37
Des Plaines
53.96
27.56
81.52
Wheeling
39.19
37.24
76.43
Elmhurst
27.84
48.50
76.34
Arlington His.
39.946
35.81
75.75
Hoffman Estates
35.00'
36.20
71.60
Northbrook
30.00
39.26
69.26
Mt. Prospect
39.00
no benefit
39.00
Elgin
0.00
33.00
33.00
Buffalo Grove
32.502'
0.00
32.50
AVERAGE
46.45
35.10
78.69
Union Offer
Village Offer
74.36 (10th out of 15)
.87.01 (6th out of 15)
The Union's data (U. Ex. 6(a)(1)) differs significantly as to medical plan
2'rhe record does not indicate which figure is correct, the Union's $62.70 or the Village's
$78.00.
uAlthough V. Ex. 63 gives the Park Ridge employee medical plan contribution rate as
$65.00, the collective bargaining agreement (V.Ex. 4(11)) indicates that the rate is actually
$60.00.
26The record does not indicate which figure is correct; the Union's $27.27 or the Village's
$39.94.
"According to the collective bargaining agreement , the employee contribution for medical
insurance is 10% of the premium, or $35.00, whichever is less. Therefore V. Ex. 63 incorrectly
uses a contribution rate of $47.40.
2"The record does not indicate which figure is correct, the Union's $30.00 or the Village's
$32.50.
32
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
contribution rates. Using the Union's figures (plus the Village's data on dental
plan contributions, in the absence of any data from the Union), the. comparable
information is as follows:
Regardless of which set of figures is used, the Village offer would put firefighters'
premium costs roughly $9 (or 11.5 percent) above the average, while the Union
offer would put their premium costs roughly $4 (or 5 percent) below the average.
29See footnote 24 above.
30See footnote 26 above.
"Although the Union provided no contribution rate for Northbrook, the contract sets a rate
of $30.00 (V.Ex. 4(10)).
32Although U. Ex. 6(a)(1) has a rate of $38.00 for Mt. Prospect, the contract (V.Ex. 4(9))
indicates that the correct figure is $39.00.
33
Medical
Dental
Total
Lombard
$ 86.62
$ 53.41
$140.03
Rolling Meadows
47.00
69.21
116.21
Bensenville
62.70i9
45.05
107.75
Skokie
81.27
6.10
87.37
Park Ridge
60.00
25.00
85.00
Des Plaines
53.96
27.56
81.52
Wheeling
39.19
37.24
76.43
Elmhurst
27.84
48.50
76.34
Arlington His.
39.9430
35.81
75.75
Hoffman Estates
35.00
36.20
71.60
Northbrook
30.0031
39.26
69.26
Mt Prospect
39.0032
no benefit
39.00
Elgin
0.00
33.00
33.00
Buffalo Grove
32.50
0.00
32.50
AVERAGE
45.36
35.10
77.60
Union Offer
74.36 (10th out of 15)
Village Offer
87.01 (5th out of 15)
Regardless of which set of figures is used, the Village offer would put firefighters'
premium costs roughly $9 (or 11.5 percent) above the average, while the Union
offer would put their premium costs roughly $4 (or 5 percent) below the average.
29See footnote 24 above.
30See footnote 26 above.
"Although the Union provided no contribution rate for Northbrook, the contract sets a rate
of $30.00 (V.Ex. 4(10)).
32Although U. Ex. 6(a)(1) has a rate of $38.00 for Mt. Prospect, the contract (V.Ex. 4(9))
indicates that the correct figure is $39.00.
33
Village of Elk Grove Village and lAFF Local 3398
ISLRB No. S -MA -96-86
It is impossible to draw meaningful conclusions about how either offer might
modify the Village's ranking among the comparable communities: The Memoran-
dum of Agreement bars consideration of the Village firefighters' 1995-1996
contribution rate, and as a result, the most recent Village firefighter rate available
is the rate first paid in 1993.
The Village urges that its increase costs make the Village's offer the more
reasonable. However, according to Human Resources Officer Olson, the Village's
health care premium costs for the bargaining unit increased 5.9% from 1993 to
1994, but remained constant in 1994 and 1995. (U.Ex. 45.) Olson also testified
that overall health care costs increased 6.2 percent from fiscal year 1994 - 1995 to
fiscal year 1995 - 1996, but this figure includes cost increases for all employees,
not just firefighters, and is of limited value in justifying the Village's offer.
According to US Department of Labor data, benefit costs for state and local
government workers nationwide increased 3 percent in 1995 and 2.2 percent in
1996, but there are no earlier benefit cost statistics in this record. In the absence
of additional historic economic statistics, indicating the increase in national benefit
costs over the entire term of the last contract, it is impossible to say that national
trends in benefit costs justify one offer over the other.
Considering all of the available data and the internal comparisons, the Arbitrator
concludes that the time has come for the firefighters and lieutenants to accept parity
with all other Village employees. Unlike the situation in 1994, there are now two
bargaining units, in addition to the unrepresented employees, who have the same
contribution rate, deductibles, co -payments and out-of-pocket maximums and
participate in the PPO program. Although "internal parity" should not become a
mindless mantra, so that it bars serious and separate consideration of the particular
needs and circumstances of each distinct group or unit of employees, there is no
reason at present to continue the firefighters' unique package. The Union's offer
would make the Village firefighters' premium contributions at least 4 percent and
as much as 5.5 percent less than the average among the comparable communities.
(See pages 32 and 33 above.) In light of the Village's general standing in the
middle of the range of the comparable communities in other measures of
compensation, the Village's offer (including contribution rates, co -payments, out-of-
pocket maximums, and deductibles) is more reasonable at this time.
34
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
7. Issue No. 7 -- Longevity Pay
The Union's final offer on longevity pay for firefighters is as follows:
Years of service
10 to 15 years of service
15 to 20 years of service
Over 20 years of service
Longevity pay (Per year)
$ 400.00
500.00
650.00
For lieutenants, the Union proposes that the longevity pay amounts effective May
1, 1995, continue unchanged throughout this contract.
The Village's final offer of longevity pay for firefighters is that effective May 1,
1996, firefighters shall receive longevity payments as follows:
Years of service
10 to 15 years of service
15 to 20 years of service
Over 20 years of service
Longevity pay (per year)
$ 150.00
250.00
350.00
and further, that effective May 1, 1998, the Firefighters will receive longevity
payments as follows:
Years of service
10 to 15 years of service
15 to 20 years of service
Over 20 years of service
Longevity pay (per year)
$ 200.00
300.00
400.00
For lieutenants, the Village also proposes to continue the current schedule of
longevity payments throughout the contract, as follows:
35
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
Years of service
10 to 15 years of service
15 to 20 years of service
Over 20 years of service
Longevity nay (per year)
Thus, the parties have agreed on two points: the amount of longevity payments for
lieutenants, and the institution of longevity payments for firefighters. However,
where the Union would place firefighters on the same longevity scale as
lieutenants, the Village would use a significantly lower scale for firefighters
throughout the contract term.
The Union asserts that the Village's longevity payments, even at the scale proposed
for lieutenanis, trail those paid in comparable communities-. In comparable
communities, the ranges are as follows:
The average 10 -year longevity payment (paid by all of the comparables except
Wheeling) is $535. Both the Village's offer and the Union's offer lag behind this,
although the Union offer is only $135 below the average 10 -year payment 33
"In fact as of May 1, 1996, 7 firefighters have between 10 and 15 years of service, 14 have
(continued...)
36
Min. Amt.
Max. Amt.
Arlington Hts.
$475 (5 yrs)
$775 (20 yrs)
Buffalo Grove
$200 (5 yrs)
$500 f20 yrs)
Des Plaines (Firefighters)
$808 (10 yrs)
$2548 (20 yrs)
Des Plaines (Lieutenants)
not in record
$2950 (20 yrs)
Mt. Prospect
$275
$275
Northbrook
$180 (5 yrs)
$1200 (20 yrs)
Park Ridge (Firefighters)
$600 (10 yrs)
$800 (20 yrs)
Park Ridge (Lieutenants)
not in record
$850 (not in record)
Rolling Meadows
$700 (10 yrs)
$900 (20 yrs)
Skokie
$300 (5 yrs)
$600 (30 yrs)
Wheeling
$600 (12 yrs)
$600 (12 yrs)
The average 10 -year longevity payment (paid by all of the comparables except
Wheeling) is $535. Both the Village's offer and the Union's offer lag behind this,
although the Union offer is only $135 below the average 10 -year payment 33
"In fact as of May 1, 1996, 7 firefighters have between 10 and 15 years of service, 14 have
(continued...)
36
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
Both longevity proposals lag by another measure. We have seen that the Village's
offer on salaries, which is being adopted, places the firefighters May 1, 1996,
maximum base salary in fourth place among the comparables, moving Mem up one
rank. When the maximum base salary is added to the maximum longevity, the
following rankings result:
The Union's offer would place the maximum firefighter salary plus longevity at
fifth out of all comparables by this measure, while the Village's offer would place
its firefighters at seventh behind Skokie and Arlington Heights, in either case a
33( ... continued)
between 15 and 20 years of service, and 17 have over 20 years of service, so that the vast
majority of employees receiving longevity payments will be at the two higher steps of the scale.
Thirty firefighters, or slightly less than half the classification, will receive no longevity payment
at all. Similarly detailed demographic figures are not available for the comparable communities.
'Estimate based on 1995 maximum base salary increased by the 4 % increase negotiated for
Arlington Heights police officers.
37
Max base
Max long.
Rank w/o
5196
5/1/96
Total
Village
Hoffman Estates
$49,031.
------
49,031
2
Northbrook
47,473.
1200.
48,673
3
Rolling Meadows
47,069.
900.
47,969
4
Elk Grove Villaee (Union long. offer)
47,054.
650.
47,704
Elk Grove Village (Villaee offer)
47,054.
350.
47,404
Skokie
46,945.
600,
47,545
5
Des Plaines
46,945.
2548.
49,493
1
Arlington Heights
46,880.34
775.
47,655
6
Park Ridge
46,131.
800.
46,931
7
Buffalo Grove
45,500.
500.
46,000
8
Mount Prospect
45,368.
275.
45,643
10
Wheeling
45,171,
6Q0,
45,771
9
Elgin
44,784,
----=-
44,784
11
Elmhurst
44,452.
------
44,452
12
Lombard
44,199,
------
44,199
13
Bensenville
43,152.
-------
43,152
14
The Union's offer would place the maximum firefighter salary plus longevity at
fifth out of all comparables by this measure, while the Village's offer would place
its firefighters at seventh behind Skokie and Arlington Heights, in either case a
33( ... continued)
between 15 and 20 years of service, and 17 have over 20 years of service, so that the vast
majority of employees receiving longevity payments will be at the two higher steps of the scale.
Thirty firefighters, or slightly less than half the classification, will receive no longevity payment
at all. Similarly detailed demographic figures are not available for the comparable communities.
'Estimate based on 1995 maximum base salary increased by the 4 % increase negotiated for
Arlington Heights police officers.
37
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
drop from the Village's ranking of fourth when only maximum base salary is
considered. It should be noted that the considerable range among comparables at
both 10 years ($275 - $808) and the maximum ($275 - $2548) for—firefighters
clearly reflects the bargains struck in individual units based on a wide variety of
factors.
On the other hand, the longevity payments offered by the Village for the first two
years of the contract are identical to those provided to police officers under the
MAP contract. The increase offered effective May 1, 1998, will take effect after
the expiration of the MAP contract, so no further comparison is possible, although
the Village asserts in its brief that the increase "if accepted by the Arbitrator in this
case, will in all likelihood be agreed to in the negotiations between the Village and
MAP for a successor contract." Village Brief, fn. 35, p. 73. Arbitrator Goldstein
was also cognizant of establishing the basis for a "pattern" in adopting the Village's
proposal for new longevity payments for police, and expected his award to serve
as "a guidepost" in the negotiation of the firefighters' next contract, the one in
formation here. Goldstein Award, p. 79. The Village's offer is identical to the
longevity stnicture for IUOE employees, as well.
Although the Union urges that the firefighters should receive the same longevity
scale as the lieutenants, there is little support for this position. Firefighters and
lieutenants are different classifications and receive different base pay. There is no
reason why they should receive the same dollar amounts for longevity. The higher
longevity pay for lieutenants may be seen as another incentive for firefighters to
seek promotion to that rank. Thus, this internal comparison is not persuasive.
Just as the longevity payments were a breakthrough for the fire lieutenants in the
1994 case, the longevity payments for firefighters are a breakthrough here. The
history of minimal turnover in the classification suggests that these longevity
payments are not needed to assist the Village in retaining experienced, qualified
firefighters, nor is there evidence of need for the type of equitable adjustments
made in 1994. Where a balance must be drawn between the lessons of the external
comparisons that favor the Union's proposal, and the internal comparison between
firefighters, police officers and public works employees that strongly favors the
Village's offer, the key must be not to discourage or defeat the bargaining process,
38
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
by awarding a higher benefit than reasonably might be achieved in bargaining.
Here, the Village has already conceded the need to make longevity -Payments to
firefighters in some amount. The Village's more modest proposal, which preserves
the internal parity with police officers, is in order.
8. Issue No. 8 -- Hours of Work
The Village proposes to revise Section 13.2(a) and to add a new subsection (c), to
read as follows:
(a) Shift Employees. The normal work day for shift employees shall be
a period of 24 and one-quarter hours beginning at 0645 hrs. a.m. and
ending at 0700 hrs. a.m. the following day. The normal work period
for shift employees is a 28 -day cycle.
(c) Definition of Hours Worked for Overtime Purposes for Shift
Employees. Hours worked shall include all hours actually worked,
and hours not worked coded as vacation and holidays. Any other type
of compensated time off such sick leave shall be counted as hours
worked. Additionally, there is expressed agreement that two one-hour
meal periods on each scheduled day (1200 hours for lunch and 1800
hours for dinner, Monday through Saturday, and 1000 hours for
breakfast and 1600 hours for dinner on Sundays and holidays) will be
excluded from the hours worked total. If an employee's meal period
is interrupted by calls to duty, the Fire Chief or his designee will re-
schedule the meal period as soon as convenient thereafter, unless the
Fire Chief or his designee determines that work requirements will not
permit rescheduling, in which event the interrupted meal period will
be counted as time worked and paid accordingly. Finally, the parties
expressly agree that the Village shall not count as hours worked eight
(8) hours sleep time per 24 1/4 hours shift provided the employee gets
at least five (5) hours of uninterrupted sleep time during the sleep
period.
"a]
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
The Village's final offer also includes the following caveat:
(NOTE: Subsection (b) would remain as workded in the 1993-96
contract since the Village's final offer does [sic: "not" apparently
intended) include any change to that subsection.)
The Union proposed to leave Section 13.2 unchanged.
The ISLRB General Counsel concluded in her March 28, 1997 Declaratory Ruling
that the Village's proposal on this issue is not a mandatory subject of bargaining
under the Act. The Village's proposal to establish a 241/4 -hour workday and to
exclude sleep and meal time from hours worked in computing overtime would
deprive employees of their individual right to refuse to the overtime exclusions.
The General Counsel did not find it to necessary to determine whether the Union
could waive the employees' FLSA rights in this manner. She ruled that if the
Union lacked the authority to waive individual employees' statutory FLSA rights,
then the Village's proposal requiring that waiver would be a prohibited subject of
bargaining, particularly where, as here, bargaining unit members have notified the
Village in writing of their opposition to the proposed change. She further held, on
the other hand, that if the Union did have the authority to waive employees' FLSA
rights regardless of their individual objections, the Village proposal would be "most
properly deemed a permissive rather than a mandatory subject of bargaining, in
accordance with the ample precedent ... that a bargaining proposal conditioned
upon the relinquishment of a party's statutory rights is a permissive subject of
bargaining." Declaratory Ruling, p. 8.
In light of this ruling, the Village has withdrawn its final offer. Village Brief,
p. 79. " The Union has also requested that the Arbitrator not consider this issue.
'- lrhe Village qualified its withdrawal by requesting the opportunity to resubmit its final offer
on this issue if the Arbitrator were to assert jurisdiction and rule on the Union's offer with
respect to Fire Prevention Bureau Inspection work, Issue No. 17. As noted below, the Arbitrator
has not asserted jurisdiction over the Union's offer, and this award will not have the effect of
adding the Union's proposed Section 19.17.
'"IE
Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
Based on the General Counsel's determination that the Village's offer was not a
mandatory subject of bargaining, the Arbitrator fords that she has no authority to
consider Issue No. 8 further.
9. Issue No. 9 -- Overtime Pay for Firefighters
The Union's final offer on overtime pay for firefighters is to amend the third
paragraph of Section 13.4 to add paid time off for sick leave to the paid time off
that is counted as hours worked for the purpose of calculating eligibility for
overtime. The Village's final offer is to retain Section 13.4 without change.
The third paragraph of Section 13.4 now reads:
Solely for the purpose of calculating eligibility for overtime pursuant to the
provisions of this Section, paid time off for vacations and holidays shall be
counted as hours worked; any other type of compensated leave such as sick leave
shall not be counted as hours worked.
The Union would add "sick leave" after "vacations" as paid time off counted as
hours worked, and delete the semi -colon and the material following the semi -colon.
The Union relies primarily on comparison to the police officers, where the same
issue was presented to Arbitrator Goldstein, who adopted the police officers'
proposal based primarily on the external comparables for that unit. In addition, the
Union notes that other Village employees receive the same benefit.
However, I agree with the Village that these groups of employees are not
comparable to the firefighters unit on this point. Firefighters have a unique work
schedule and overtime provisions: they work 24-hour shifts and are paid time -and -
one -half for "all regularly scheduled hours worked in excess of 212 hours in the
employee's normal 28 -day work period." Section 13.4 of the Agreement. As a
result, this proposal for firefighters is a far greater benefit to these employee, than
it would be for another Village department. Thus, if a firefighter is on sick leave
for a shift, twenty-four hours of leave would be counted as hours worked, while if
a police officer is on sick leave for a shift, only eight hours would be counted as
hours worked.
41
Village of Elk Grove Village and LUT Local 3398
ISLRB No. S -MA -96-86
Firefighters receive overtime just for working a "normal" schedule of 24 hours on,
48 hours off. If the firefighter is scheduled to work ten shifts during a 28 -day
work cycle, he or she will work 240 hours within that cycle, and be entitled to
overtime pay for the 28 hours worked in excess of 212 hours. If the firefighter
is scheduled to work nine shifts during the 28 -day cycle, he or she will work 216
hours in the cycle and will be entitled to overtime pay for the four hours in excess
of 212. Under the Union's offer, a firefighter could take two shifts of sick leave,
so that he or she works only 192 hours in a ten -shift cycle, or 168 hours in a nine -
shift cycle, and still be paid overtime for 28 hours and four hours, respectively.
This would be a far greater benefit than the police officers, with eight-hour shifts,
receive. It is an unjustified windfall to the firefighters. Finally, it should be noted
that none of the comparable communities counts sick leave as hours worked for
purposes of either FLSA overtime or regular overtime for firefighters. The Union's
offer is not reasonable, and Section 13.4 will be retained without change.
10. Issue No. 10 -- Overtime Pay for Lieutenants
The Union's final offer on overtime pay for Lieutenants is 'to amend the second
sentence of Section 13.5 to read as follows (new material underlined):
Lieutenants are ineligible for overtime compensation, except when
they are called back to duty outside of their scheduled hours of work
to respond to an emergency or to satisfy minimum manpower
requirements as established by the Fire Department and to undertake
training programs and participate in the department's operational
committees.
The Village's final offer is to retain Section 13.5 without change.
The Union asserts that its proposal is based on the Village's general Personnel
Rules and Regulations, under which all front line supervisors, including police
sergeants, are eligible for overtime "when the needs of the department are such that
the first line supervisor must work additional days and/or hours because of
inadequate supervisory manpower," or "when emergency situations develop which
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Village of Elk Grove Village and IAFF Local 3398
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require their supervision." Supervisors also are paid at straight time :for court
attendance on behalf of the Village which does not take place during their
scheduled normal working hours. The Union concludes that treating fire lieutenants
like all other front line supervisors requires that they be granted overtime when
they are called back to duty outside of their scheduled hours of work for required
training programs or to participate in the department's operational committees.
The Village cites a letter from the Department of Labor representing the
Department's determination, after an audit, that fire lieutenants are "exempt"
personnel under the federal FLSA. However, that finding under federal wage and
hour law is independent of the determination that lieutenants are not supervisors for
the purposes of the IPLRA. The question here is not entitlement under the FLSA,
but what is the appropriate negotiated agreement. Accord, Nathan Award, pp. 81 -
83. The panel in the 1994 case was uncomfortable with its decision to adopt the
current language, and concluded,
If the Union is unable to bargain any system of reasonable overtime
for lieutenants, or if the experience under the new language results in
little or no overtime for lieutenants, then the Union can return to this
forum and make its case.
Considering the entire record here, it must be concluded that the Union has not yet
made that case. Fire lieutenants are entitled to overtime pay under Section 13.5,
"when they are called back to duty outside of their scheduled hours of work to
respond to an emergency or to satisfy minimum manpower requirements." The
Village asserts that Section 13.5 is comparable to the Personnel Rules and
regulations on this point, because it provides the fire lieutenants with overtime
compensation "when they are called back to duty outside of their scheduled hours
of work to respond to an emergency or to satisfy minimum manpower
requirements." In fact, the Personnel Rules do not say that front line supervisors
are compensated for all work that they must do outside their regular schedule, but
only that they are compensated for extra days and/or hours necessitated by
"inadequate supervisory manpower." There is no evidence in this record that front
line supervisors' attendance at required training or at routine committee meetings
is considered compensable under the Personnel Rules.
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The record indicates that fire lieutenants do have overtime opportunities under the
current system. From January 1993 through December 1995, the Village paid
overtime to fire lieutenants averaging $6066 per lieutenant per year, more than ten
percent of even the highest salary paid to a lieutenant. It is impossible to
determine from this record how much time lieutenants must spend on committee
meetings and training outside their regular schedule, a significant issue where a
lieutenant can trade duty days in order to avoid working on a day he or she is
otherwise scheduled off.
The Union argues that a precedent in favor of its proposal was set when three
lieutenants received overtime pay in 1996 for working on a funeral detail and a
physical ability test. However, the Union has failed to show that this was beyond
the compensation already required by Section 13.5 -for lieutenants called back
because of an emergency situation or to maintain minimum staffing. Even if this
compensation was not required under Section 13.5, two incidents in three years
cannot be deemed a "precedent," particularly where they involved neither the
committee meetings or the required training that the Union now seeks to have
compensated at overtime rates.
In sum, the Union has not yet proved an operational or equitable need for the
expansion of lieutenants' overtime opportunities as it proposes. The Union's
proposal is rejected.
11. Issue No. 11 -- Vacation Time
The Union's final offer with respect to vacation time is to increase the vacation
time for firefighters and lieutenants with 5 - 9 years of service, 20 - 24 years of
service or over 25 years of service, so that the new vacation entitlements would be:
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Village of Elk Grove Village and IAFF Local 3398
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Firefighters:
Completed Years of Service
Annual Vacation
After one year through 4 years
5 - 24 hour shifts
After 5 years through 9 years
8 - 24 hour shifts
After 10 years through 14 years
9- 24 hour shifts
After 15 years through 19 years
10 - 24 hour shifts
After 20 years through 24 years
12 - 24 hour shifts
After 25 years
13 - 24 hour shifts
Lieutenants:
Completed Years of Service
Annual Vacation
After one year through 4 years
6 - 24 hour shifts
After 5 years through 9 years
9- 24 hour shifts
After 10 years through 14 years
10 - 24 hour shifts
After 15 years through 19 years
11 - 24 hour shifts
After 20 years through 24 years
13 - 24 hour shifts
After 25 years
14 - 24 hour shifts
The Village's final offer is to retain Section 16.3 without change.
The Union has calculated that, based on the contract terms effective in May 1995,
the yearly vacation for a firefighter in each of the comparable jurisdictions,
averaged over an assumed 25 -year career, would be 8.93 24-hour days, and that the
average yearly vacation for a firefighter serving 25 years with the Village would
be 8.90 24-hour days, only slightly below average:"
'Park Ridge is omitted from this calculation because it does not designate "vacation days"
separate from other time off.
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Yearly average in
24-hour days
Lombard
10.8
Skokie
10.6
Elmhurst
9.8
Hoffman Estates
9.4
Elk Grove Village
8.9
Buffalo Grove
8.88
Arlington Hts.
8.6
Wheeling
8.58
Northbrook
8.48
Rolling Meadows
8.4
Des Plaines
8.12
Mount Prospect
8.12
Bensenville
8.08
Elgin
8.0
Average 8.93
Under the Union's offer, the career -average yearly vacation would increase to 9.12
24-hour days, and would not change the Village's rank among the comparable
community. Similarly, the Union calculated total days off, including vacation,
Kelly Days, personal days and holidays, using the career -average figure for
vacation days:
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Mount Prospect 23.12
Buffalo Grove
21.88
Arlington Heights
21.60
Northbrook
21.48
Rolling Meadows
21.40
Hoffman Estates
21.40
Skokie
20.64
Elk Grove Village
19.90
Des Plaines
19.88
Elgin
18.95
Elmhurst
18.80
Park Ridge
18.68
Wheeling
18.58
Lombard
17.60
Bensenville
10.11
Average 19_65
Under the Union's offer on vacation time, and with the additional Martin Luther
King Day holiday added by this award, the total time off for Village firefighters
would increase to 21.12 24-hour days, moving the Village's ranking up one place
to seventh, ahead of Skokie.
The Union's proposal to "round up" the half-day vacation entitlements does not
significantly alter the Village's standing among the comparable communities on
total days off, and will impact only those employees with service within the
affected ranges. In addition, it must be noted that the Union's calculations, on
which the Village also relies, reflect only 1995 benefits. It can be expected that
over the course of the next three years, firefighters in some of the comparable
jurisdictions will achieve similar increases in their total time off, in which case, the
position of Village firefighters can be expected to deteriorate- somewhat over the
contract term. Considering that the Village's standing near the middle of the
comparables in terms of salaries, longevity and paramedic stipend, the Union's
proposal is more reasonable than the Village's.
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12. Issue No. 12 -- Vacation Scheduling
During the parties' negotiations, and at the hearing, the Union proposed to modify
Section 16.3, while the Village sought to retain Section 16.3 without change. In
its final offer, however, the Union has withdrawn its proposal on vacation
scheduling. Therefore, both parties' final offers result in maintaining the status quo
with respect to Section 16.3.
13. Issue No. 13 -- Holidays
The Union's final offer is to add one additional holiday to Section 18.1 -- Martin
Luther King Day. The Village's final offer is to add the following new second
paragraph to Section 18.1:
Effective May 1, 1997, Veteran's Day shall be considered a holiday
for the purposes of this Article.
Both parties therefore acknowledge that an additional holiday'is appropriate for this
unit. The critical difference between the offers is not so much the day specified
but the fact that the Union's offer would add the additional holiday in the fust year
of the contract, while the Village's offer would not add the holiday until the second
year of the contract.
A particular effective date (other than the beginning of the contract term) may a
feature of a proposal with significant economic or operational consequences. The
effective date itself becomes a benefit or concession to be offered or withheld.
Employers frequently use their opposition to retroactivity as a bargaining chip to
pressure negotiations before impasse, for example, threatening to oppose any
retroactive benefits if the parties fail to achieve a new contract before a particular
deadline, such as the current contract expiration date. Often, the parties agree, for
example, to limit retroactivity so as to achieve a benefit for the long-term while
limiting its cost in the short-term.
In the case of this particular proposal, however, the Village offers no compelling
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ISLRB No. S -MA -96-86
economic or reason for limiting the new holiday to the last two years. of the
contract. The Village urges that its offer be accepted rather than the Union's,
because its offer specifies an effective date, while the Union's offer does not. The
Village suggests that acceptance of the Union's offer would lead to ambiguity and
confusion.
However, the Union's offer is neither ambiguous or confusing. Section 18.1
begins:
The following days shall be considered holidays during the term of this
Agreement:.. .
Adding "Martin Luther King Day" to the subsequent list, without any further
qualification, necessarily makes it a holiday "during the term of this Agreement."
The natural reading of Section 18.1 and the Union's offer is that the change is
effective for the entire term, that is, retroactive to May 1, 1996. The Arbitrator
sees no ambiguity in the offer itself, nor in its implementation. The Union's
proposal is therefore adopted.
14. Issue No. 14 -- Duration of the Contract
The Union's final offer is:
Article XXII of the collective bargaining agreement shall be amended
by deleting the reference as to 1996 and substituting 1999. The union
requests a collective bargaining contract of a three (3) year term
commencing on the date of execution and ending on April 30, 1999.
The Village's final offer is for a three-year term, i.e., May 1, 1996 through April
30, 1999.
In its post -hearing brief, the Village stated that it had no objection to the
Arbitration's acceptance of the Union's offer, which is more specific in providing
proposed contract language. However, the effect of the two proposals is not
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Village of Elk Grove Village and IAFF Local 3398
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identical, because the Union's proposal would make the contract effective "as of
the day after the contract is executed by both parties," which would mean that most
changes in the contract could not become effective until sometime in September
1997, rather than on May 1, 1996. Even the Village has not proposed this delay,
and it is apparent from the Union's brief on Issue No. 13 (Holidays) that this was
not the intent of the Union either. The increased cost of the benefits affected by
the difference in the two offers, such as the 1996 Martin Luther King holiday, and
the additional vacation pay to some employees for 1996-1997, appears to be slight.
The parties could not have anticipated such a lengthy delay in reaching the
tentative agreements that they were able to achieve on other issues. Accordingly,
the Arbitrator's accepts the Village's final offer on this issue. Based on the
absence of any suggestion by the Village to the contrary, the Arbitrator finds that
this offer modifies only the first sentence of Article XXII, and leaves the remainder
of the Article unchanged.37
15. Issue No. 15 -- Subcontracting
The Union's final offer on subcontracting is to delete Section 19.8(c) and
substitute:
Any proposal to subcontract non -fire suppression work performed by
employees covered by this agreement shall be presented to the union,
and the Village and the union shall engage in immediate collective
bargaining negotiations over the decision and the impact of any
decision to subcontract such work. In the event the parties are unable
to reach agreement concerning either a decision to subcontract or the
impact of such a decision, the dispute shall be resolved by interest
arbitration pursuant to the provisions of Section 14 of the Illinois
Public Labor Relations Act.
"At the executive session held September 10, 1997, the parties highlighted the inconsistency
between the two offers. The Arbitrator's intent to adopt a three-year term is explicit in her
original (and unchanged) discussion of the parties' proposals on Holidays (Issue No. 13, pp. 48 -
49 above), and the Arbitrator has corrected the Award accordingly.
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Village of Elk Grove Village and IAFF Local 3398
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The Village's final offer is to retain Section 19.8 unchanged:
Section 19.8. Subcontracting. (a) No employee shall be laid off as a
result of any decision by the Village to subcontract any work
performed by employees covered by this Agreement.
(b) Notwithstanding the foregoing, basic fire suppression work shall
not be subcontracted, provided that this provision shall not be
applicable to any mutual aid agreements that the Village has or may
have with other fire departments or if there is a violation of section
10.1 (No Strike).
(c) If the Village subcontracts non -fire suppression work performed
by employees covered by this Agreement, no bargaining unit employee
shall be directly supervised by non -sworn personnel as a result thereof.
f The Union asserts that it is likely that the Village will staff the newest ambulance
with a subcontractor's employees, rather than bargaining unit members. Although
the Chief is on record preferring not to use a subcontractor, the Union notes that
he can be overruled by the Village's trustees. As a result, the Union seeks to
require that the Village bargain over the decision and the impact of a decision to
subcontract such work, and that the parties proceed to impasse arbitration if they
are unable to reach agreement on their own. The Union notes that it does not seek
an absolute bar of non -fire suppression work.
The Union cites the "interests and welfare of the public" as the basis for this
proposal, in light of the testimony of very high turnover of contract paramedics
used by the Bensenville Fire Department. Even the Chief has expressed his
concern that privatization of Fire Department functions leads to excessive turnover
of contract personnel and a resulting "lack of continuity of operations and intimate
knowledge of the workings of the village." U. Ex. 46. The Union urges that its
proposal to require that the parties bargain over a decision to subcontract is a
conservative step necessary to protect the interests of the public.
The Village, on the other hand, asserts that Section 19.8 must be viewed as a
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ISLRB No. S -MA -96-86
whole. The provision was negotiated by the parties, rather than being imposed by
the impasse arbitrator, and represents a carefully -constructed trade between the
parties: The Village agreed that no employee would be laid off as a result of any
subcontracting decision (Section 19.8(a)), and that basic fire suppression work
would not be subcontracted (Section 19.8(b)). In return, the Village gained the
right to subcontract non -fire suppression work performed by bargaining unit
employees, subject to the proviso that "no bargaining unit employee shall be
directly supervised by non -sworn personnel as a result thereof' (Section 19.8(c)).
The Union now seeks to alter that freely -negotiated balance without offering any
concession of its own.
In fact, the Union has offered no evidence why the language of Section 19.8(c) that
it adopted voluntarily in 1993 should be altered by the arbitrator now. There is no
evidence of changed circumstances. Although Firefighter Quinn testified that the
Assistant Chief told him staffing of the new ambulance would be subcontracted,
the Chief's own written statements, his prompt correction to Firefighter Quinn and
the Assistant Chief, and his testimony at the hearing indicate his opposition to
subcontracting the ambulance service, and there is simply no evidence that the
Village trustees would override the Chief s position. Further, the very general
anecdotal evidence of one community's experience of contract employee turnover
does not raise sufficient alarms about public safety to require the arbitrator to step
in and override the parties' original bargain.
The Union cites the decision of Arbitrator Nathan in Bloomingdale Fire Protection
District No. 1, ISLRB No. S -MA -92-231 (1994). However, that case is distin-
guishable for two reasons. First, the parties had reached impasse in negotiating
their first contract, so the arbitrator was being asked to determine a provision for
an initial contract, not to amend a previously -negotiated provision. Second, the
arbitrator's choice was between the Village's offer which would give it the right
to subcontract basic fire suppression and all other bargaining unit work, and the
Union's offer to protect all fire suppression and paramedic work from subcont-
racting. Here, the Village seeks only to protect the status g%o, while the Union
seeks to alter a clause that resulted from free and fair negotiations.
The Union has failed to show sufficient need, changed circumstances, or a counter -
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Village of Elk Grove Village and IAFF Local 3398
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balancing concession on its part to justify a change in this clause embodying the
parties' own bargain. The Village's offer to retain Section 19 without change is
accepted.
16. Issue No. 16 -- Pay Rate for Inspectional Services Division
Work
The Union's final offer on Inspectional Services Division work is to add a new
Section 14.7 to read as follows:
Firefighters:
Effective May 1, 1996, bargaining unit employees who are firefighters
and who work in the Inspectional Services Division pursuant to a Fair
Labor Standards Act, Section 7(g) Agreement between firefighters and
the Village shall be paid at the hourly rate of $ 11.00. All assigned
hours worked in this position shall be paid at one and one-half times
the straight time hourly rate specified in this article, but if bargaining
unit firefighters are called out to perform rescue or fine suppression
duties they will be paid at one and one-half times their normal hourly
rate as firefighters to perform such rescue or fire suppression work.
A Section 7(g) Agreement is attached to this final offer.
Fire lieutenants:
Effective May 1, 1996, bargaining unit employees who are lieutenants
and who work in the Inspectional Services Division pursuant to a Fair
Labor Standards Act, Section 7(g) Agreement between all lieutenants
and the Village shall be paid at the hourly rate of $ 16.50. If
bargaining unit lieutenants are called out to perform rescue or fire
suppression duties they will be paid at one and one-half times their
normal hourly rate as lieutenants to perform such rescue or fire
suppression work.
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Village of Elk Grove Village and IAFF Local 3398
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A Section 7(g) Agreement is attached to this final offer.38
The Village's final offer is to add a new Section 14.7 as follows:
Section 14.7. Pay Rate for Firefighters Assigned Inspectional
Services Division Work. Provided employees have signed a Section
7(g) agreement prepared by the Village in accordance with the
provisions of this section, if the Village, in its discretion, hires back
employees to work in the Inspectional Services Division outside their
regularly scheduled hours of work, such work shall be compensated
at $ 16.00 per hour.
The parties have agreed that work for the Inspectional Service Division (ISD) shall
be considered a secondary job under the Fair Labor Standards Act, and will be
assigned only to firefighters or fire lieutenants who have signed a Section 7(g)
f
agreement." However, the final offers differ as to the hourly rate to be paid for
""Me Section 7(g) agreement attached to the Union's final offer states:
I, , agree and understand that for all straight time hours in my
regular job as a firefighter/lieutenant at the Elk Grove Village Fire Department,
I will be paid per hour, and I will be paid 1-1/2 times that rate or
per hour for all overtime hours worked in that regular job. I also agree and
understand that for all straight time hours in my secondary job as a fire
inspector/preplan reviewer, I will be paid _ per hour, and I will be paid 1-1/2
tunes that rate or , per hour for all overtime hours worked in that regular job.
Lastly, I understand and agree that all my hours worked in my job as a fire
inspector/preplan reviewer will be paid at the overtime rate of that job.
RATE EFFECTIVE
Signature
Date
"Section 7(g) of the FLSA, 29 U.S.C. §207(g), states in relevant part:
(continued...)
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Village of Elk Grove Village and IAFF Local 3398
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the work, the Union proposing that firefighters be paid at time and one-half of a
regular rate of $11.00, and lieutenants be paid at a straight time rate of—$16.50, and
the Village proposing that all employees be paid a uniform hourly rate of $16.00.40
The Union's offer at first glance appears to set separate rates for firefighters and
lieutenants doing ISD work. Instead, both classifications effectively would be paid
$16.50 per hour for the work: Lieutenants would be paid $16.50 per hour at the
straight time rate, and firefighters would be paid the same $16.50 per hour at a
time -and -one-half rate, for all work performed for the ISD.
On the other hand, the Village's offer is somewhat ambiguous about what the
effective hourly compensation would be for the ISD work. The Village's offer
says, "[S]uch work shall be compensated at $16.00 per hour." The Village's 7(g)
agreements for each classification, which the Village has represented to be part of
its final offer, include the statement that "all hours that I am assigned to work in
the Inspectional Services Division as my secondary job will be paid at the overtime
( rate of that job." The Village itself states in its brief that under these agreements,
"[A]ny bargaining unit employee who is assigned to ISD work as a secondary job
will be paid at time and one-half times the applicable rate for'that secondary job."
39( ... continued)
No employer shall be deemed to have violated subsection (a) of this section [setting
overtime pay requirements] by employing any employee for a workweek in excess of the
maximum workweek applicable to such employee under sub subsection if, pursuant to an
agreement or understanding arrived at between the employer and the employee before
performance of the work, the amount paid to the employee for the number of hours worked by
him in such workweek in excess of the maximum workweek applicable to such employee under
such subsection --
(2) in the case of an employee performing two or more kinds of work for which different
hourly or piece rates have been established, is computed at rates not less than one and one-half
times such bona fide rates applicable to the same work when performed during non -overtime
hours:... .
U.
Village of Elk Grove Village and IAFF Local 3398
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Thus, the Village offers an effective rate of $24.00 per hour for both lieutenants
and firefighters, resulting in the unusual circumstance of the Village offering a
higher rate than the Union for both firefighters and lieutenants.. 'There is no
suggestion in the record that paying the higher rate will be a hardship for the
Village, in light of the parties' agreement that there is no issue of the Village's
ability to pay either party's offers.
There is another reason to adopt the Village's offer. The Union's offer provides,
". .. [I]f bargaining unit firefighters are called out to perform rescue or fire
suppression duties they will be paid at one and one-half times their normal hourly
rate as firefighters to perform such rescue or fire suppression work;' with an
identical provision for lieutenants. The Union claims that the Village's offer is
deficient in not addressing this point. However, such callbacks are part of the
employees' primary job, not part of their secondary job, and hours worked on a
callback to the primary job would be compensated at the overtime rates applicable
pursuant to Article XIII, particularly Sections 13.4 (firefighters) and 13.5
(lieutenants). To address compensation for work in the primary job in this section
on compensation for a secondary job is unnecessary and confusing, and may create
negotiation and interpretation problems in the future. In fact, the over -inclusiveness
of the Union's offer favors adoption of the Village's formulation.
For these reasons, the Village's offer is adopted.
17. Issue No. 17 -- Fire Prevention Bureau Inspection Work
The Union's final offer is to add a new Section 19.7 as follows:
When new or existing positions become available andPor additional
work has to be performed in the Inspectional Services Division, the
fire chief shall select individuals for this work by posting a notice of
vacancy in each fine station for a period of fourteen (14) calendar days
during which time any bargaining unit employee may apply. No
employee will be involuntarily assigned to any position stated in this
section pursuant to the terms of a section 7(g) agreement.
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The Village opposes the addition of Section 19.7. The ISLRB General _Counsel
ruled in her March 28, 1987 Declaratory Ruling that this issue is a non -mandatory
issue of bargaining, because it either involves appointments to non -bargaining unit
ISD positions or determining the bargaining unit status of ISD positions. As a
result of the General Counsel's ruling, there is no impasse issue properly before the
Arbitrator on this point.
18. Issue No. 18 -- Termination Effect
In its final offer, the Union has withdrawn its earlier proposal to delete Section
19.3. The Village's final offer is to retain Section 19.3. Therefore both parties'
final offers have the effect of retaining- Section 19.3 without change.
19. Issue No. 19 -- Hirebacks
The Village's final offer is to revise the first paragraph of Section 13.6 to read:
Section 13.6. Hirebacks. Effective the fust pay period following
issuance of Arbitrator Kohn's award, where there is a need for a
hireback, employees will be hired back from an integrated seniority
list of all employees by shift (i.e., lieutenants will be interspersed as
evenly as possible among firefighters), subject to the following:
(a) If there are less than four lieutenants on duty (excluding an acting
Captain), a lieutenant will be hired back to fill the fourth lieutenant
position bypassing, if necessary, firefighters on the list. This fourth
position will be a voluntary hireback and may be filled by a firefighter
if no lieutenant voluntarily accepts the hireback.
(b) If there are five or more lieutenants on duty (excluding an acting
Captain), a firefighter or firefighter/paramedic will be hired back
bypassing, if necessary, lieutenants on the list.
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(c) If there are less than the required number of paramedics to fill the
necessary paramedic positions on the engines or ambulances, a
firefighter/paramedic will be hired back bypassing, if necessary
lieutenant/paramedics and firefighters on the list.
(d) Any such employee who is passed over will remain on the
eligible list for the next hireback opportunity.
The Union's final offer is that no change be made to Section 13.6.
At present, if a hireback is needed, the Village must hireback a lieutenant,
bypassing if necessary firefighters on the integrated seniority list, if there are
otherwise fewer than four officers on duty, but must hireback a firefighter,
bypassing if necessary lieutenants on the list, if there are six officers on duty.
Paramedics are hired back from the integrated seniority list in all circumstances.
The Village's offer would require the hireback of a lieutenant if there are fewer
than four lieutenants on duty, thereby eliminating the acting lieutenant position
(except when all lieutenants decline the hireback). If there are five or more
lieutenants on duty (rather than six officers), a firefighter would be hired back,
bypassing lieutenants if necessary. Finally, under the Village's offer there would
be a new provision on the hireback of paramedics: If a paramedic is needed the
Village would be required to hire back a firefighter/paramedic, bypassing
lieutenant/paramedics and firefighters on the list.
As the Union did with respect to the subcontracting issue (Issue No. 15 above), the
Village here seeks to alter a contract provision that was the result of negotiation
and agreement by the parties. The Village therefore bears the considerable burden
of demonstrating a significant need for the change and some counterbalance that
would justify the arbitrator depriving the other party of a benefit previously
achieved through the give-and-take collective bargaining.
The Village asserts that the change is necessary to ensure effective staffing of
officer slots. According to the Village, Section 13.6(a) has resulted in far too many
occasions when a firefighter was serving as an acting lieutenant at the largest fire
station, Station 7, 102 days during calendar year 1995. The Village cites two
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Village of Elk Grove Village and IAFF Local 3398
ISLRB No. S -MA -96-86
recent occasions when bargaining unit members expressed to Fire Department
management their discomfort with a junior firefighter serving as acting lieutenants.
In one case, the acting lieutenant had only 19 months experience on the job; in the
other, an acting lieutenant sought advice during an emergency from an actual
lieutenant serving as paramedic at the scene. The Department's top officers
strongly believe that there should be enough real fire lieutenants on duty (four, plus
perhaps an acting captain) to staff each station with a real lieutenant, and that the
Village should not have to wait until a disaster occurs before taking steps to
prevent it. The Village contends that the firefighters' loss of acting lieutenant
overtime opportunities is offset by the fact that any firefighter who is bypassed
remains on the eligible list for the next hireback opportunity, and opines that the
overall number of hirebacks should not be significantly affected.
According to the Union, the new provision would deprive firefighters of significant
overtime opportunities as acting lieutenants, opportunities that it sought to equalize
when it agreed to the existing provision. This was a significant point of negotiation
in the first collective bargaining. The Union asserts that there is no need to alter
the bargained -for clause in order to protect the public appropriately. There is no
evidence that there has been any actual danger to the public or to department
employees under the existing provision. Instead of depriving firefighters of
hireback opportunities, the shift captain could address speculative concerns about
the impact of inexperience firefighters as acting lieutenants, by exercising the
Department's discretion to reassign the available personnel to insure that the acting
lieutenant be a firefighter capable of safely and competently performing the duties
of position. It is not clear that shift captains attempted to use this authority to
avoid appointment of inexperienced firefighters as acting lieutenants.
Thus, the Village has not demonstrated sufficient need for the proposed change 41
The Union, whose members themselves share an interest in being directed at the
scene of an emergency by qualified personnel, suggests the existence of alternatives
41There is no evidence of any need to add the provision giving firefighter/paramedics priority
over lieutenant/paramedics for paramedic hirebacks, although the Union did not offer strong
objection to this aspect of the Village's offer.
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to modifying the contract language. In the absence of imminent danger to the
public or to Department employees, this issue is ideally suited—for further
exploration and collective bargaining. The Union's proposal to retain Section 13.6
without change is adopted.
C. Non -Economic Issues
1. Issue No. 20 -- Promotions
The Union's final offer on promotions is to add a new Section 19.8 as follows:
Promotions to the rank of lieutenant shall be in accordance with the
provisions of the Illinois Municipal Code, 65 IL.CS 5/10-2.1-10-15,
and the Village of Elk Grove Village Board of Fire and Police
Commissioners shall during the term of this collective bargaining
contract have jurisdiction to test, evaluate and rank candidates for
promotion to the rank of lieutenant.
The Village's final offer on promotions is that no contract language be added on
this topic.
The Union's proposal stems from the recent decision of the Village to eliminate the
authority of the Board of Fire and Police Commissioners to test, evaluate and rank
candidates for promotion to the rank of fine captain. Until that decision was made,
the Board had exercised jurisdiction over such promotions. The Village's action
was within its home rule authority. See, e.g.. Hoffman v. Board of Fire and Police
Commissioners, 86 Ill. App. 3d 505, 408 N.E. 2d 98 (1980). The Union expresses
concern that the employer could similarly exercise its home rule authority and
remove promotions to fire lieutenant from the Board's jurisdiction, and abolish the
Board's right to "test, evaluate and rank candidates for promotion to the rank of
lieutenant." According to the Union, the rules of the Board of Fire and Police
Commissioners are intended to provide fair and competitive testing and ranking of
candidates, and to avoid direct appointment without examination.
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Comparable communities vary on this point. Most have no contract provision
whatsoever. Lombard's contract refers to the Board's jurisdiction over -disciplinary
and termination matters, but does not address its jurisdiction over promotions. The
contract for Arlington Heights' firefighters provides for competitive examination,
graded by the Board, but specifies that the Board's exercise of its "sole right to
determine the components and the weight to be given to each component ... shall
not be subject to the grievance and arbitration procedure set forth in this
Agreement." The Northbrook contract, which does not cover lieutenants, contains
the provision that the Village's Board "shall retain jurisdiction to determine the
promotion eligibility of fire fighters," but provides that disputes over promotions
(other than temporary promotions lasting less than 60 days) are not subject to the
grievance procedures. The Wheeling contract includes a provision acknowledging
the Board's "certain exclusive statutory jurisdiction over employees covered by this
Agreement, to hire and discipline employees and to make, alter and enforce
reasonable rules and regulations," but excludes from its grievance procedure "any
matter or issue of hiring and discipline under the jurisdiction of the Board of Fire
and Police Commissioners." Thus, even the three communities with contractual
provisions acknowledging the Board's authority over promotions, exempt the
Board's exercise of its authority from the contract's grievance procedure.
The Village objects strongly to the absence of any such exemption in the Union's
offer. Under the Union's proposal, any dispute over whether a promotion was "in
accordance with the provisions of the Illinois Municipal Code, 65 ILCS 5/10-2.1-
10-15" and any dispute over the Board's exercise of its "jurisdiction to test,
evaluate and rank candidates for promotion" would be subject to the grievance and
arbitration procedure. The Village opposes "contractualizing" this issue, when
unsuccessful applicants already have the right to seek redress under the Illinois
Administrative Review Act. The fact that even those jurisdictions that have
"contractualized" the issue have protected the process from the grievance procedure
suggests that the Union's proposal, lacking that protection, goes too far.
The Union proposes a substantial alteration of the balance of the parties' rights in
this area, one that should not be imposed on the parties in the absence of voluntary
agreement. On the other hand, the Village's final offer to leave the topic out of the
contract entirely fails to address the Union's reasonable concern. The Union takes
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and the Village are agreed that the Village's exercise of its home rule authority to
remove the promotions to lieutenant from the jurisdiction of the Board would be
a mandatory subject of bargaining. However, counsel for the Village would not
agree when asked on the record that the Village would be required to proceed to
interest arbitration on the issue if an impasse were reached during the contract term.
Instead, the Village's attorney characterized this (whether the statute mandates
interest arbitration of impasses reached in the middle of a contract term) as "one
of the major unresolved issues" under the Act. Based on this record, the Union has
no assurance that the Village would submit to arbitration a mid-term impasse on
the issue. Merely to adopt the Village's final offer leaves open the possibility that
the Village would refuse to proceed to arbitration in the event of an impasse,
raising the specter of costly litigation over the issue.
Clearly, a middle ground can be found. In its brief, the Village has proposed
language confirming that the parties will have the opportunity to negotiate over a
Village proposal to exempt the promotion of fire lieutenants from the Board's
jurisdiction, and will proceed to impasse arbitration in the event of impasse. That
language at least insures that the Village will submit the issue to an impartial
arbitrator if the parties are unable to resolve the matter themselves, providing the
Union with an assurance that it does not have if the contract remains silent. On
the other hand, this solution would not radically alter the balance between the
parties, and permits the Union to renew its efforts to obtain a contractual assertion
of the Board's jurisdiction at a later date. The Arbitrator therefore adopts the
following language as a new Section 19.17:42
Notwithstanding any other provision of this Agreement, if the Village
during the term of this collective bargaining agreement desires to
exempt the rank of fire lieutenant from the promotional process
administered by the Elk Grove Village Board of Fire and Police
Commissioners, it shall give the Union advance notice of its desire
42,Me Union proposed that this new provision be number "19.18," assuming that its proposed
Section 19.17 (Issue No. 17 above) also would be added to the Agreement. Because the Union's
offer on Issue No. 17 has not been accepted, the new provision on Promotions to Lieutenant is
more appropriately numbered 19.17.
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and, if requested, shall negotiate over such decision and the effects of
such decision on bargaining unit employees. If the parties are -unable
to resolve the issues in negotiations, either party may invoke the
provisions of Section 14 of the IPLRA.
2. Issue No. 21 -- Decertification of Paramedics
The Union's final offer with respect to decertification of paramedics is to amend
Section 19.16 by deleting the second sentence and adding three new sentences to
the first paragraph, so that the amended section would read as follows (new
language underlined):43
If an employee after a minimum of five (5) years' participation in the
Elk Grove Village Fire Department's paramedic program desires to
decertify, the employee may submit a written request to the Fire Chief
( through the chain of command. Voluntary decertification will be
facilitated within a reasonable period of time by training candidates for
the program. Decertification requests will be due for`, the following
twelve (12) months on or before September 1 of each year.
Decertification will be implemented on a seniority basis measured by
the time an employee has served in the department.
The Village shall continue to pay all costs to obtain or maintain EMT -
A or EMT -P certification, provided that this shall not be applicable if
an employee has to repeat a certification course because he/she failed
it the first time around.
"From the Union's final offer, it would appear that the proposed language retains, as the last
sentence of the fust paragraph: "In the absence of a sufficient number of volunteers for the
program, the least senior nonprobationary employee will be required to enter the program"
However, the Union's description in its Brief is somewhat ambiguous, and does not mention this
sentence. Because this is a non -economic issue, this ambiguity is not a serious flaw in the final,
because the arbitrator is not restricted simply to picking one final offer or the other, and can
insert the sentence in question if it is deemed appropriate.
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ISLRB No. S -MA -96-86
The Village's final offer is to retain Section 19.16 without change. The first
paragraph of Section 19.16 currently states: _
If an employee after a minimum of five (5) years' participation in the
Elk Grove Village Fire Depar ment's paramedic program desires to
decertify, the employee may submit a written request to the Fire Chief
through the chain of command. Such requests shall not be arbitrarily
or discriminatorily denied. Voluntary decertification will be facilitated
by training candidates for the program. In the absence of a sufficient
number of volunteers for the program, the least senior nonprobationary
employee will be required to enter the program.
As has been stated already, the party seeking to change a clause that was freely
bargained by the parties bears the burden of showing a compelling need for the
change, and perhaps some qqiLpro quo for that part of the original bargain being
taken from the other party. Cf. Village of Arlington Heights (Briggs, Arb.)
(January 29, 1991); Will CoupBoard (Nathan, Arb.)(August 17, 1988).
According to the Union, the purpose of this proposal is to assure that paramedics'
requests for decertification will be granted more quickly than is currently the case.
As of the last hearing date (February 5, 1997), Firefighter Quinn's request to
decertify, filed in May 1995, had been pending almost 21 months. Another
employee's request, filed in December 1995, had been pending for 14 months, and
the only other request filed since 1993 was filed in May 1996 and was still pending
nine months later. The Fire Department took between 8'fz months and twenty-three
months to grant previous requests, filed between January 1990 and April 1991.
The Union fords this delay unacceptable. Its offer is modest, it contends, because
it would merely require decertification "within a reasonable period of time." The
Union acknowledges that factors such as the length of training (18 months), the
availability of paramedics and the number of employee being trained may affect the
Village's ability to maintain minimum paramedic staffing requirements (currently
42 paramedics) and still grant decertification requests. If there are multiple
pending decertification requests, and an employee must wait until sufficient
numbers of replacements are trained, it might take years for the decertification
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request to be granted. Although there is no evidence that the decertification
process is being mishandled at present, the Union requests the right to file a
grievance if it appears that the decertification of a paramedic has taken too long.
This appears to be a remedy before there is a problem, and indeed, the record
suggests that this provision would have done little if anything to shorten the wait
for any employees now seeking decertification. The Union does not assert that the
recent delays would be "unreasonable" under its proposed language; in fact,
Firefighter Quinn expects to be decertified when the employee now in training
finishes his course, and the unavailability of trained replacements to meet minimum
staffing requirements is, the Union agrees, a reasonable basis for delay. To date,
the Village has apparently trained new paramedics and decertified paramedics as
promptly as operational concerns would allow, and has exercised its managerial
discretion to evaluate and respond to those operational concerns within the bounds
of reasonableness. The Union certainly has not shown otherwise. Thus, the
language would not alter the current pace of decertification, nor grant employees
a right to quicker decertification.
Firefighter Quinn's concern that the Department might drag its heels in training a
new paramedic, and could thereby delay decertification for as much as five years
is mere speculation. Based on the Village's past and current administration of the
paramedic program, the change proposed by the Union is not necessary at this time.
The Village's offer is accepted.
3. Issue No. 22 -- Grievances over Merit Pay for Fire
Lieutenants
The Union's final offer with respect to grievances over merit pay for fire
lieutenants is to delete Section 14.3 if the Arbitrator selects the Union's final offer
on wage increases for lieutenants, which would eliminate lieutenants' merit pay.
The Village's final offer is to retain Section 14.13 without change.
Because the Union's final offer on wage increases for lieutenants has been rejected,
the Village's final offer is more reasonable. Section 14.13 will be retained without
change.
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ISLRB No. S -MA -96-86
4. Issue No. 23 -- Application of Rules
The Union's final offer with respect to the Application of Rules issue is to add a
new Section 19.19 as follows:
The employer agrees that the uniform rules and regulations of the fire
department are to be fairly and equitably administered and enforced.
Any employee shall have the right to appeal a violation of this clause
through the grievance procedure.
The Village opposes the addition of the proposed Section 19.19 and further asserts
that because this issue was previously resolved in the negotiations that preceded the
interest arbitration, the Arbitrator has no jurisdiction to rule on this issue.
In order to determine whether this issue is properly a part of the interest arbitration,
it is necessary to review the parties' pre -impasse negotiations. The Union proposed
the addition of a new Section 19.18, "New Rules," and a new Section 19.19,
"Application of Rules." The language proposed by the Uni6n was:
Section 19.18. New Rules. New or revised rules and orders having
the effect of changing a rule or regulation may be established from
time to time by the employer. Any such new or revised rule(s) or
order(s) shall be posted for ten (10) days before they become effective
or enforceable. Where possible, the employer shall discuss proposals
for new rules, regulations, and orders with the Labor -Management
Committee prior to posting.
Section 19.19 Application of Rules. The Employer agrees that the
uniform rules and regulations of the Fire Department are to be fairly
and equitably administered and enforced. Any employee shall have
the right to appeal thru the grievance procedure fo[r] violation of theis
[sic] clause.
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ISLRB No. S -MA -96-86
It is undisputed that on May 31, 1996, the parties reached tentative agreement and
signed off on the following
Section _. Rules and Regulations. Consistent with the
provisions of Article VI of this agreement, as new rules and regula-
tions are established, the Village will provide the Union with as much
advance notice as possible prior to issuance. Such rules and
regulations will be enforced equitably throughout the Department.
According to Quinn, this unnumbered "Rules and Regulations" section was a result
of discussions of the Union's proposed Section 19.18, which was limited to "new
rules." (Tr. 1038) Quinn testified that the proposed Section 19.19 continued to be
discussed by the parties between May and October 1996, there was never any
agreement that the Union would withdraw the proposed Section 19.19, which
applied to existing rules, nor that the two proposals would be combined into the
language that was TA'd. (Tr. 1039-41, 1056) Olson, on the other hand, testified
that there was no further discussion of proposed Section 19.19 after May 31, 1996,
when the "Rules and Regulations" provision was TA'd. Although the record
contains references to interim lists of TA'd issues prepared'by each party, those
lists are not in the record, apparently because the lists were exchanged in a session
regarded as "off the record" by one or both of the parties. (See, e.g., Tr. 1171-73)
The Village also observes that the language of the TA'd provision is not simply a
"rewriting" of the proposed Section 19.18, but an amalgam of parts of both Section
19.18 and 19.19, suggesting that the TA'd provision was intended by the parties
to encompass their agreement as to both proposals. Section 19.18 stated the
Village's right to establish new and revised rules and regulations and an advance
notice and discussion provision. The TA'd provision has no statement of the
Village's right to establish new rules or its duty to discuss proposals for new rules,
but does include a modified requirement that the Village give "as much advance
notice as possible" to the Union. Section 19.19 contains the requirement that rules
be "fairly and equitably administered and enforced," and a provision for grieving
violations of the Section. The TA'd language includes a requirement that "Such
rules and regulations will be enforced equitably throughout the department," but no
discussion of grievances. Thus, the TA'd section includes some concepts from
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each proposal. Indeed, the title of the new provision is "Rules and Regulations,"
suggesting that the parties have agreed that the new provision applies to more than
"New Rules," the title of proposed Section 19.18.
Although in seeking to reopen the issue of proposed Section 19.19, Local President
Quinn testified that the TA'd provision was limited to the scope of proposed
Section 19.18, I find to the contrary. The TA'd provision resolved both proposals.
It includes the Section 19.18 theme of advance notice of new and revised rules, but
omits the requirement of discussion before adoption. It also includes the Section
19.19 concept of equitable enforcement, though it omits that proposal's reference
to the grievance procedure. The inclusion of the equitable enforcement language
would have been unnecessary, were the parties still at odds over the Section 19.19
proposal. Moreover, it does not make sense that the Village would agree to
enforce equitably only new rules, but not existing ones. Finally, by adopting a title
("Rules and Regulations") broader than Section 19.18's "New Rules," the parties
demonstrated their understanding as of May 31, 1996 that the equitable enforce-
ment required by the TA'd section answered at least one of the Union's concerns
in proposing Section 19.19, and that "such rules and regulations" to be equitably
enforced would not be limited to "New Rules." The Union cannot fine-tune the
agreed-upon language after the fact by reviving an issue already put to bed.
Accordingly, I find that there was no impasse on the issue of proposed Section
19.19, which was resolved by the parties by incorporating some of its purpose into
the title and second sentence of the TA'd provision. The Union's final offer in this
regard is therefore denied.
5. Issue No. 24 -- Shift Starting Time
The Union's final offer on shift starting time is to amend Section 13.2(a) to read
as follows (new language underlined):
The normal workday in a normal workweek shall be 24 consecutive
hours of work (1 shift) followed by 48 consecutive hours off (2 shifts).
The normal work day for 24-hour employees shall begin and end at
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ISLRB No. S -MA -96-86
8:00 a.m.• nine hours after the commencement of the shift the assigned
hours for the duty day shall end.
The Village's final offer is that if the Arbitrator accepts the Union's proposal on
Issue No. 8, then the second sentence of Section 13.2(a) should be deleted and the
following substituted:
Effective the first FLSA work cycle following issuance of Arbitrator
Kohn's award, the normal workday for 24-hour employees shall begin
no earlier than 7 a.m. or no later than 8:00 a..m. If the Village
decides to change the current shift starting time it shall give all
affected employees at least one month's notice of the effective date of
the change.
The parties' existing agreement provides in Section 13.2(a) that, "The normal
workday for 24 hour employees shall begin and end at 8:00 a.m." The Village
seeks to amend Section 13.2(a) to obtain the flexibility to schedule the workday to
begin as earlier as 7:00 a.m. or as late as 8:00 a.m. The Union counters that the
starting time should remain fixed by contract at 8:00 a.m.% and would add to
Section 13.2(a) the provision that "nine hours after the commencement of the shift
the assigned hours for the duty day shall end."
Each party bears the burden of justifying its own proposal. The Village presented
witnesses and statistics intended to show that a 7:00 a.m. starting time would
enable the Fire Department to respond more effectively and with less overtime to
the increased number of calls for service during the hour beginning at 8:00 a.m.
The Village's data demonstrated that in 1995 there was an increase of calls from
137 calls during the hour beginning at 6:00 a.m. to 225 calls during the hour
beginning at 7:00 a.m. to 269 calls for service during the hour beginning at 8:00
a.m. Chief MacArthur testified that it would be easier to staff the 8:00 a.m. hour
service calls more efficiently if the firefighters were in place prior to 8:00 a.m.,
e.g., if the shift began at 7:00 a.m. In addition, he testified, a 7:00 a.m. starting
time would reduce the number of firefighters out on call (and therefore beginning
to accrue overtime) at the end of their shift. The Village also cited concerns that
traffic for employees and for Fire Department vehicles is heavier at 8:00 a.m. than
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at 7:00 a.m.
The Village contends that the provisions in contracts of the comparalle commu-
nities support this change. However, the evidence is equivocal. Five of the
contracts (for Arlington Heights, Hoffman Estates, Lombard, Park Ridge, and
Rolling Meadows) do support the Union's offer to retain the status quo, in that they
specify starting times at or within 15 minutes of 8:00 a.m. The Village asserts that
nine of the comparable contracts specify a 7:00 am. shift starting time or give the
community the right to set the starting time at 7:00 a.m.; however, a careful review
of the contracts in question reveals that only seven communities are so
empowered.4° On the other hand, therap ctice in those communities is cited by the
Union in support of the status quo: Only Elgin, Northbrook and Wheeling have
7:00 a.m. starting times. The remaining eleven comparables all have shift starting
times at 8:00 a.m. or, in the case of Park Ridge and Rolling Meadows, within 15
minutes of 8:00 a.m.
The Union objects to any change in the status guo. It is undisputed that the shift
starting time has been 8:00 a.m. for at least 23 years. Employees have scheduled
child care arrangements and other family obligations, based on that schedule. More
important, there has long been an informal but common practice for firefighters on
the oncoming shift to move their gear into place when they arrive, even if it is
before the shift start time, and "jump on the rig" if a call comes in between 7:45
a.m. or earlier and 8:00 a.m., so that personnel on the outgoing shift will not have
to be out on the call and incur overtime after 8:00 a.m. Lieutenant Goss testified
that employees on the oncoming shift do not generally claim overtime for those
d°The Buffalo Grove, Mt. Prospect, and Skokie contracts do not set a specific shift starting
time, but contain management rights or similar clauses that leave the specification of work
schedules to the employer. The Elgin and Northbrook contracts specify a 7:00 a.m, starting time,
and the Elmhurst and Wheeling contracts explicitly permit the community to set a starting time
within a range that includes 7:00 a.m The Bensenville contract does not specify a shift start
time, and only grants the Village the right to establishing schedules "departing from the normal
work day, shift or work period...." The Village omitted Des Plaines from its tabulation (cf.
Village Ex. 77), perhaps because the Des Plaines contract neither specifies a shift starting time
for 24-hour employees, nor explicitly includes the scheduling of work in its management rights
clause.
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few minutes before the shift starts. Thus, the equipment is fully staffed around the
8:00 a.m. with some mitigation of overtime expense to the Village.
The traffic problems for fire emergency vehicles cited by the Village would be the
same whether the shift starts at 8:00 a.m. or earlier. In any case, the traffic
problems are being addressed by the Village's installation and implementation of
a fire emergency preemption system, which allows drivers of fire emergency
vehicles to take control of traffic signals. There is no evidence that the shift
starting time affects traffic conditions for Fire Department vehicles.
Although the Village's other collective bargaining agreements grant the Village
some of the flexibility it seeks in this contract, the internal comparisons are not
very compelling here. The firefighters are the only unit with 24-hour shifts.
Although the contract with the police officers' union gives the Village great
discretion to adjust starting times and to assign different starting times to different
employees, there is no evidence that the police officers have ever enjoyed the
expectation of a single fixed shift starting time. Similarly, the Village's agreement
with International Union of Operating Engineers Local 150 permits it to schedule
the start of the eight-hour shift between 6:00 a.m. and 7:00a.m., but there is no
evidence that the Engineers had any contrary expectation when that provision was
negotiated.
As Arbitrator Nathan noted in addressing the Village's request for analogous
flexibility at the last interest arbitration, Nathan Award at pp. 154-5:
[T]he problem is that a fire department is not like most employers.
The work knows no time distinctions.... The employees live together
and their work cycles are part of their lives. An employer's basic
right to set hours must be muted when it comes to a fire department.
Thus, the burden is on the employer not merely to suggest that it
needs flexibility to change a normal shift from 8:00 to some other
hour, but to demonstrate that this change is necessary and the
necessity overcomes the disruption it would cause in the employee's
lives.
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In light of this mixed picture, and mindful of the disruption a change: in shift
starting time may work on the lives of employees and their families the Village
has failed to satisfy its burden to justify this significant alteration in the status
quo -45
On the other hand, the Union has failed to satisfy its burden to justify the addition
of a limitation on hours of assigned work. The existing contract is silent on the
matter of hours of assigned work. The normal practice is that assigned work is
performed between 8:00 a.m. to 5:00 p.m. However, Chief MacArthur testified that
he expected that the hours of assigned work would continue to end at 5:00 p.m.
even if the Village's proposal were adopted and the Village set a new shift starting
time earlier than 8:00 a.m. The Union's proposal is a response to that position.
The comparable communities' contracts offer little support to the Union for the
addition of the assigned work hours provision. Only four of the fourteen
comparable communities include such a provision in their contracts (Arlington
Heights, Hoffman Estates, Northbrook, Park Ridge). One contract merely restricts
the Village's right to change practices with respect to "nonassigned time" (Skokie).
None of the remaining nine communities have contracting addressing the issue,
although seven of those have 9 or 91/a hours of assigned work per workday,
according to Firefighter Hall's survey of the communities. (Union Ex. 72)
There is no evidence that the Village would expand the hours of assigned work in
the absence of a change in shift starting time, a change which this Arbitrator has
rejected. On the other hand, there is testimony that even now, the Fire Department
conducts required night drills after 5:00 p.m., which the Union's final offer would
prohibit. There is thus insufficient necessity at this time to adopt the Union's
proposal to include a nine -hour limitation in the contract. Such a change is more
appropriately made at the bargaining table. Neither offer is accepted, and Section
45 It is not enough to say that the Village is asking merely for flexibility in setting a starting
time, not specifically for a 7:00 am. The reasonableness and propriety of the offer depends upon
the impact of the Village's exercised the requested flexibility.
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13.2(a) shall be retained without change 16
III. AWARD
Based on careful consideration of the entire record, including all of the applicable
statutory criteria and the evidence and argument submitted by the parties, for the
reasons set forth above, the Arbitrator awards the following:
The parties' May 1, 1996 - April 30, 1999 collective bargaining agreement shall
consist of the provisions as to which the parties have reached tentative agreement
between themselves, as indicated in Village Exhibit 1, and the following:
Economic Issues:
Issue No. 1 -- Salaries for Firefighters: The Village's offer is adopted.
Issue No. 2 -- Salaries for Lieutenants: The Village's offer is adopted.
Issue No. 3 -- Paramedic Stipend: The Union's offer is adopted.
Issue No. 4 -- EMT -B Stipend: The Village's offer is adopted.
Issue No. 5 -- Retroactivity: The Union's offer is adopted.
Issue No. 6 -- Cost of Medical and Dental Insurance: The Village's offer is
adopted.
Issue No. 7 -- Longevity Pay: The Village's offer is adopted.
Issue No. 8 -- Hours of Work: Based on the Declaratory Ruling of the General
Counsel of the ISLRB, there is no issue properly before the Arbitrator.
Issue No. 9 -- Overtime Pay for Firefighters: The Village's offer is adopted.
Issue No. 10 -- Overtime Pay for Lieutenants: The Village's offer is adopted.
Issue No. 11 -- Vacation Time: The Union's offer is adopted.
Issue No. 12 -- Vacation Scheduling: The Union makes no proposal in its final
offer to change Section 16.3, and the Village's offer to retain the
Section without change is adopted.
Issue No. 13 -- Holidays: The Union's offer is adopted.
Issue No. 14 -- Duration of the Contract: The Village's offer is adopted.
06Because of this ruling, the Arbitrator need not address the propriety of the Village
presenting two different final offers of language for Section 13.2(a), in the alternative, in Issue
No. 8 and in Issue No. 24.
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Issue No. 15 -- Subcontracting: The Village's offer is adopted.
Issue No. 16 -- Pay Rate for Inspectional Services Division Work: The Village's
offer is adopted.
Issue No. 17 -- Fire Prevention Bureau Inspection Work: Based on the Declara-
tory Ruling of the General Counsel of the ISLRB, there is no issue
properly before the Arbitrator.
Issue No. 18 -- Termination Effect: The Union makes no proposal in its final offer
to change Section 19.3, and the Village's offer to retain the Section
without change is adopted.
Issue No. 19 -- Hirebacks: The Union's offer is adopted.
Non -Economic Issues:
Issue No. 20 -- Promotions: The following shall be added as Section 19.17:
Notwithstanding any other provision of this Agreement, if the Village during the term of
this collective bargaining agreement desires to exempt the rank of fire lieutenant from the
promotional process administered by the Elk Grove Village Board of Fire and Police
Commissioners, it shall give the Union advance notice of its desire and, if requested, shall
negotiate over such decision and the effects of such decision on bargaining unit em-
ployees. If the parties are unable to resolve the issues in negotiations, either party may
invoke the provisions of Section 14 of the IPLRA.
Issue No. 21 -- Decertification of Paramedics: The Village's offer is adopted.
Issue No. 22 -- Grievances over Merit Pay for Fire Lieutenants: The Village's
offer is adopted.
Issue No. 23 -- Application of Rules: The Village's offer is adopted.
Issue No. 24 -- Shift Starting Time: Neither offer is adopted and Section 13.2(a)
shall be retained without change.
Dated:a
74
Respectfully submitted,
,-,4 2 &
Lisa S covitz Kohn