Loading...
HomeMy WebLinkAboutHBFA - Firefighters Association - 1994-10-10October 17, 1994 TO: CITY OF HUNTINGTON BEACH MAYOR AND MEMBERS OF THE CITY COUNCIL MICHAEL DOLDER, FIRE CHIEF WILLIAM OSNESS, PERSONNEL DIRECTOR Daniel Cassidy, Esq. FROM: HBFA TOM FAYE, HBFA PRESIDENT RICHARD J. SILBER, HBFA ATTORNEY RE: "ARTICLE 4 - MINIMUM STAFFING AND FILLING OF VACANCIES" NEGOTIATIONS/"MEET AND CONFER" RESPONSE TO FIRE CHIEFS 10/5/94 PROPOSED CITY COUNCIL UNILATERAL ACTION -HEARING OFFICER'S MINIMUM STAFFING LANGUAGE AS PART OF HUNTINGTON BEACH FIRE DEPARTMENT POLICY D-14" HBFA CURRENT PROPOSALS AS BASIS FOR "MEET AND CONFER" PROCESS i P.O. Box 694- Huntington Beach • California 92648 Minimum Manning - Article 4 HBFA PROPOSAL, DATED 10/17/94 Page 1 Please refer to HBFAIS 10/10/94 RESPONSE TO FIRE CHIEF DOLDER'S 10/5/94 PROPOSED UNILATERAL ACTION - MINIMUM STAFFING/IMPASSE ADVISORY ARBITRATION DECISION. For the reasons stated therein, HBFA respectfully requests that the City Council not unilaterally implement "Minimum Manning/Staffing" changes (to become part of Fire Department Policy D-14). Rather, HBFA asks the Council to consider the attached HBFA ARTICLE 4 "MINIMUM MANNING/STAFFING" Proposal, and to direct the Personnel Director/Fire Chief to engage in "good faith negotiations" with HBFA, over all "Minimum Manning/Staffing" issues. HBFA thanks the City Council for its rejection of the Proposed Cut to the 1994-95 Fire Department Budget/Personnel Reduction, and for its consideration of HBFA'S "MINIMUM MANNING" POSITION/PROPOSAL. , Respectfully Submitted, Tom Fa e, FA President U j qr),& Ric and J. S'Pdr, HBFA Attorne IMPASSE ADVISORY ARBITRATION AWARD PROVISIONS, DATED 5/12/93 HBFA PROPOSALS, DATED 10/17/94 ARTICLE 4 MINIMUM STAFFING AND FILLING OF VACANCIES A. DEFINITIONS For purposes of this Article the following definitions are hereby established: 1. APPARATUS shall be defined as any vehicle utilized to respond to fires, other emergencies or work assignments which requires a California Class A, Class B firefighter restrictive driver's license. (a) A FIRE ENGINE is an apparatus with fire pump, fire hose, water tank, ground ladders, necessary firefighting equipment, and may include a "telesquirt" type of ladder, but specifically excluding aerial ladder of platform capabilities. (b) A FIRE TRUCK is an apparatus that has been mounted on the chassis, an aerial ladder or aerial platform, "TRUCK COMPANY" equipment, and may include a fire pump, fire hose, and water tank. (c) A HAZARDOUS MATERIALS (HAZ MAT) UNIT is an apparatus which has tools and equipment used in the mitigation of Hazardous Material incidents. (d) A PARAMEDIC ENGINE or a PARAMEDIC ASSESSMENT ENGINE is a Fire Engine that carries Advanced Life Support Equipment. (e) A PARAMEDIC UNIT is a Fire Department vehicle, other than a Fire Engine or Fire Truck, that carries Advanced Life Support equipment. (f) A SPECIAL PURPOSE APPARATUS is apparatus (as described in No. 1 above), not otherwise described in this Article and utilized for response to alarms. 2. A FIRE COMPANY is a firefighting force commanded by a single Fire Captain (or a person assigned/qualified as such). HBFA PROPOSAL: 2. MODIFIED: "A FIRE COMPANY is a firefighting force commanded by a single Fire Captain (or a person qualified as such) . 2 3. IN-SERVICE shall be defined as personnel, apparatus, and/or equipment which are available for dispatch to an alarm or actively involved in an alarm. HBFA PROPOSAL: 4. QUALIFIED PERSONNEL shall be defined as individual(s), who is/are on the current promotional list of the position(s) to be filled. B. MINIMUM STAFFING The CITY shall cause apparatus to be staffed with sufficient personnel to assure the safety of employees and the control of risk. For these purposes, the minimum staffing shall be as follows: 1. Each Fire Company shall be staffed with a minimum of three (3) personnel and may be assigned various firefighting or other emergency related activities as well as routine duties. Fire Companies are generally assigned as Engine Companies or Truck Companies when they operate with a Fire Engine or Fire Truck apparatus. They may, however, operate without apparatus or with more than one (1) vehicle or apparatus. When operating with more than one (1) vehicle or apparatus, the minimum staffing requirements of this Section shall be required when the vehicle is operated on an incident scene. Apparatus responding Code 3 shall be staffed with a minimum of two persons. 2. Each in-service Engine Company shall be staffed with no less than one (1) Fire Captain, one (1) Fire Engineer, and one (1) Firefighter. Any member may be a Paramedic. (a) In the event that a member is temporarily detached from a Company and where qualified personnel are available,. the Company may continue to respond (for a period not to exceed four (4) hours) to medical aid calls and single engine alarms until a replacement can be obtained pursuant to Policy D-3 (Callback Staffing System). A second fully -staffed engine shall be dispatched Code 2 whenever a two (2) person company responds. HBFA PROPOSAL: DELETE 2(a) "TWO (2) PERSON ENGINE CONCEPT" PROVISION IN ITS ENTIRETY Such Proposed "Two (2) Person Engine Concept" for utilization up 'to four (4) hours (until a replacement can be obtained) is unacceptable to HBFA. HBFA will not agree to its inclusion in a City-HBFA MOU for the following reasons: Such Proposed "Two (2) Person Engine Concept", which will result in reduced "Minimum Manning/Staffing": (a) Conflicts with the 9/26/94 Council Action - prohibits reduction of on -duty Supression Personnel; (b) Conflicts 3 with long established Fire Department practice/precedent, and MOU Provision - mandates staffing "o£ an Engine. Company with no less than one (1) Fire Captain, one (1) Fire Engineer, and one (1) Fire Fighter"; and (c) Will result in a failure to "not have sufficient personnel to assure the safety of Fire Fighting Personnel (and the Public) ". Therefore, HBFA submits that that the City Council should reject/not adopt such "Two (2) Person Engine Concept". 3. Each in-service Truck Company shall be staffed with no less than one (1) Fire Captain, one (1) Fire Engineer and two (2) Firefighters. Any member may be a Paramedic. 4. Each in-service Paramedic Unit shall be staffed with no less than two (2) certified Paramedics. 5. Each in-service Paramedic Engine Company shall be staffed with no less than one (1) Fire Captain, one (1) Fire Engineer and two (2) Firefighters. Two (2) of the members must be certified Paramedics. 6. Each in-service Paramedic Assessment Engine Company shall be staffed with no less than one (1) Fire Captain, one (1) Fire Engineer, and one (1) Firefighter. One (1) of the members must be a certified Paramedic. 7. Each in-service Hazardous Materials apparatus shall be staffed with Fire Company of which the regularly assigned personnel shall be specifically trained in Hazardous Materials incident practices and procedures in accordance with Article VIII Section D, Part 5 of the Fire MOU. One or more of the personnel staffing the Hazardous Materials apparatus may be assigned as technical advisors to an emergency's Incident Commander. when this occurs, the remaining personnel may be reassigned to other companies involved in the incident including the Newport Beach Haz Mat Team or other Hazardous Materials Joint Powers Authority providers. 8. Special Purposes Apparatus shall be staffed with no less than one- (1) person (a Fire Engineer or Firefighter assigned/qualified as such) when responding to Code 2 and with no less than two (2) personnel (one of whom must be a Fire Engineer or a Firefighter assigned/qualified as a Fire Engineer) when responding Code 3 to alarms. HBFA PROPOSAL: 8. DELETE: ( "...'Fire Fighter assigned' as a Fire Engineer" MODIFIED: Special Purposes Apparatus shall be staffed with no less than one (1) person (a Fire Engineer or Firefighter qualified as such) when responding to Code 2, and with no less than two (2) personnel (one of whom must be a Fire Engineer, or a Firefighter qualified as a Fire Engineer), when responding Code 3 to alarms. 0 9. Fire apparatus not considered to be in service shall not be required to have personnel assigned to them for the purposes of this Article. 10. The minimum staffing as set forth in this Article, shall be specifically and exclusively from Public Safety employees of the Huntington Beach Fire Department for all routine activities and normal shift duties. Reserve Firefighters. shall not be used to meet minimum staffing levels. HBFA PROPOSAL: 10. ADD: "...Reserve Firefighters or "Ambulance Operators" shall not be used to meet minimum staffing eve s." (a) No employee shall be assigned to more than one (1) Fire Company at the same time for all routine activities and normal shift duties. (b) Routine activities and normal shift duties shall include those emergencies that would normally be handled by the on - duty suppression force. C. MINIMUM STAFFING OF COMMUNICATIONS There shall be at least three (3) Fire Controllers on duty at all times consisting of any combination of Fire Controllers or Fire Controller -Shift Supervisors. The Association shall be notified yearly by January 31 regarding staffing changes for the following fiscal year. If a Management decision is made to make staffing changes the Parties may engage in the "Meet and Confer in good faith" process at either's request. Such negotiations shall be controlled by the timeliness of Section F below. HBFA PROPOSAL: C. CHANGE "may" to "shall" to correctly state the "meet and confer in good faith" obligation and the understanding of City-HBFA Representatives. MODIFIED: '°... If a Management decision is reached that will result.in staffing changes, the parties shall engage in the "Meet and Confer in good faith process at the request of either party... " D. .FILLING OF VACANCIES 1. Employees acting in a higher classification, when properly qualified, shall be considered equivalent to the required classification. 5 (a) Employees acting in a higher classification shall be paid acting pay for all time worked in the higher class when the time cumulatively exceeds two (2) hours within one (1), 24 hour shift. Acting pay will be calculated based on the step range of the higher classification which provides at least a five percent range differential. For example, a Firefighter at E step who is qualified and acts as an Engineer will be compensated at the hourly rate of a D step Engineer which is equal to or greater than a five percent differential. 2. Any employee assigned to serve in the capacity of Battalion Chief's Aide, shall not be utilized to satisfy any of the minimum staffing requirements except as set forth in this Article. The Battalion Chief's Aide may be utilized to fill a position for which he/she is qualified to serve in cases of temporary fill-in of four (4) hours or less. HBFA PROPOSAL: ...The Battalion Chief's Aide may be utilized to fill a position for which he/she is qualified fora period not to exceed four (4) hours in a twenty-four hour peH-o . 3. Either one (1) Firefighter or one (1) Firefighter Paramedic assigned to a Truck Company may be utilized for special assignments for a period not to exceed four (4) hours. 4. REPLACEMENT CALLBACK. When a vacancy exists on any apparatus the Department will be obligated to meet minimum staffing obligations of this Article by use of off duty personnel on an overtime basis. In the event an apparatus is placed out of service, those persons previously assigned thereto may be utilized to fill any vacancy prior to the use of off duty personnel on an overtime basis. 5. When a vacancy exists on any apparatus, the vacancy shall be filled rank for rank based upon the provisions of the Fire Department Policy D-3 (Callback Staffing System). HBFA PROPOSAL: NEW E. PRESENT APPARATUS/"STAFFING" CONFIGURATION/LEVEL NUMBER APPARATUS PERSONNEL/ TOTAL APPARATUS PERSONNEL 2 Fire Truck 4 8 3 Paramedic 2 6 Unit (Van) 5 Fire Engine 3 15 1 Haz-Mat Unit 3 3 (Engine) 2 Paramedic 4 8 Engine TOTAL PERSONNEL: 40 HBFA submits the above "PRESENT APPARATUS/'STAFFING' CONFIGURATION/LEVEL" Proposal, because City Administration/Fire Department recently attempted to severely cut the Fire Department Budget/reduce on -duty Personnel/eliminate Paramedic Vans. Such Action would have (a) seriously jeopardized the safety of Fire Fighter Suppression Personnel, and (b) reduced the quality of the City's Fire Service. While the City Council did not adopt such Proposed Fire Department Budget Cut, HBFA is greatly concerned about the Fire Department's apparent current intent to accomplish this goal under the guise of a new "Fire Service/Paramedic Delivery System" (requested by the City Council). HBFA therefore believes, that it is essential for the City to be contractually obligated to negotiate/"meet and confer" over any future attempt to reduce the "PRESENT "APPARATUS/'STAFFING' CONFIGURATION"/LEVEL. F. NEW EQUIPMENT 1. If the City makes a managerial decision to change staffing levels provided for in the MOU or to utilize any new apparatus over and above that presently in use, the City and. Association shall "Meet and Confer in Good Faith" prior to such action being implemented. 2. The "Meet and Confer" process/obligation shall apply to any managerial decision to eliminate any Paramedic Unit s)/Van(s). HBFA PROPOSAL: F. MODIFIED: NEW EQUIPMENT; "MEET AND CONFER " OBLIGATION 1. If the City makes a managerial decision to change staffing levels provided for in the MOU (including PRESENT "APPARATUS/'STAFFING' CONFIGURATION/LEVEL"), or to utilize any new apparatus over and above that presently in use, the City and Association shall "Meet and Confer in Good Faith" prior to such action being implemented. 2. The "Meet and Confer".process/obligation shall apply to (a) Any managerial decision to eliminate any Paramedic Unit(s)/Van(s), or to establish a "Paramedic Engine Concept"; and (b) Any Proposed Fire Department Budget Reduction, that will impact the staffing levels provided for in the MOU. G. CHANGES IN STAFFING If the "Meet and Confer" Process is requested, as indicated in the two special Sections above (Fire Controller and New Equipment/Changes in Staffing), the Parties shall complete the "Meet and Confer" Process (including any Impasse Procedure) within sixty (60) days, unless otherwise extended by mutual agreement. M. REQUEST FOR CITY COUNCIL ACTION I Date: October 17, 1994 Submitted to: Mayor and City Council i APPROVED BY CITY COUNCIL Submitted by: Michael T. Uberuaga, City Administrator , „' fi_'., Prepared by: Michael P. Dolder, Fire Chief t Subject: CONSIIDERATION OF NEGOTIATION RESULTS AND IMPASSE RULING ON MINIMUM STAFFING AND FILLING OF VACANCIES Consistent with Council Policy? [ X ] Yes [ ] New policy or Exception &.3 5 Statement of Issue, Recommendation, Analysis, Funding Source, Alternative Actions, Attachments: STATEMENT OF ISSUE: Consideration of negotiation and impasse ruling on Fire Department Minimum Staffing and Filling of Vacancies language. RECOMMENIDATION: By motion, adopt Resolution No. 66.39 unilaterally adopting the Hearing Officer's Minimum Staffing and Filling of Vacancies language as contained in the Huntington Beach Fire Department Policy D-14, dated September 1, 1994. ANALYSIS: The City's negotiators and the Huntington Beach Firefighters' Association (HBFA) conducted face- to-face negotiations over a two (2) year period to obtain a 1989-1992 contract. As a result of these negotiations, neither party could agree on language dealing with Minimum Staffing and Filling of Vacancies. After declaring impasse in June 1992, the issue of Minimum Staffing and Filling of Vacancies was handled separately from the remaining contract issues. Subsequently, additional face-to-face negotiations on Minimum Staffing were held between the City and the HBFA. These negotiations resulted in resolving all but thirteen (13) issues contained in the Minimum Staffing and Filling of Vacancies language. The actual impasse hearings on the remaining thirteen (13) Minimum Staffing issues began on February 9, 1993, with Philip Tamoush presiding as Hearing Officer. At the conclusion of the impasse hearing, both parties agreed to submit their final positions, in the form of briefs, to the Hearing Officer. The City's final brief (Attachment 1) and the Association's final brief (Attachment 2) were reviewed by the Hearing Officer and he issued a Minimum Staffing decision on May 12, 1993 (Attachment 3). A legislative copy (Attachment 4) shows the City's final position and the changes made as a result of the Hearing Officer's decision. Request for City Council Action October 17, 1994 Page 2 0 After receiving the Hearing Officer's decision, the HBFA sent a memo dated July 12, 1993 (Attachment 5) requesting a meeting to discuss the application/interpretation of the Hearing Officer's ruling. A meeting between the City and the HBFA was held on July 13, 1993 and resulted in anagreement to have the Hearing Officer clarify the word "qualified." A letter dated July 23, 1993 (Attachment 6) was sent by the City to the HBFA suggesting language for submittal as a joint letter to the Hearing Officer. The HBFA responded in a memo dated September 14, 1993 (Attachment 7) which raised new issues not agreed to at the July 13, 1993 meeting. No further agreement could be reached. Since agreement on the Hearing Officer's decision could not be reached, the City introduced the Minimum Staffing language into the 1993/1994 Contract negotiations (Attachment 8) as item number 13. However, the HBFA refused to discuss the issue as part of the 1993/1994 contract negotiations. Subsequently, the HBFA sent a memo dated December 21, 1993 (Attachment 9) requesting further clarification on the City's July 23, 1993 memo. A second memo dated April 11, 1994 (Attachment 10) was sent by the HBFA in response to the City's verbal request for clarification on the status of Minimum Staffing. The City responded to the HBFA's April 11, 1994 memo with a memo dated May 24, 1994 (Attachment 11) which provides a historical perspective of the Minimum Staffing issues including two (2) ways of resolving the issue. The HBFA responded with a memo dated July 11, 1994 (Attachment 12). One last Minimum Staffing offer was presented by the City in writing (Attachment 13) and in an August 30, 1994 meeting. After meeting on the City's offer, the HBFA rejected the City's proposal. CONCLUSION: The City's position on the unresolved Minimum Staffing issues and the HBFA's proposed language are described in the City's brief (Attachment 1). The Association's position is described in the Association's brief (Attachment 2). The Hearing Officer considered the original testimony and the City's and the HBFA's briefs on their positions and issued a decision dated May 12, 1993 (Attachment 3). In order to effectively manage the Fire Department, a relevant minimum staffing policy is required. Therefore, staff recommends, after considering the positions presented in Attachment 1, Attachment 2 and Attachment 3, that the City Council adopt Resolution No. which unilaterally implements the Hearing Officer's Minimum Staffing decision of May 12, 1993 as contained in Exhibit I of the Fire Department's Policy D-14. FUNDING SOURCE: None required. ALTERNATIVE ACTIONS: Alternative 1: By resolution, deny the Hearing Officer's decision and unilaterally adopt the City's last position and the entire Minimum Staffing and Filling of Vacancies language. Request for City Council Action October 17, 1994 Page 3 Alternative 2: By resolution, deny the Hearing Officer's decision and unilaterally adopt the HBFA's last position and the entire Minimum Staffing and Filling of Vacancies language. Alternative 3: Direct Staff to continue negotiations on Minimum Staffing language. ATTACHMENTS: 1) City's Brief on Minimum Staffing. 2) HBFA's Brief on Minimum Staffing. 3) Hearing Officer's Decision. 4) Legislative Copy of City's Proposal as Changed by Hearing Officer. 5) HBFA July 12, 1993 Memo Requesting Meeting. 6) City's July 23, 1993 Letter Proposing Joint Letter for Clarification. 7) HBFA's September 14, 1993 Memo Responding to City's Letter. 8) City's October 27, 1993 Negotiation Proposal. 9) HBFA's December 21, 1993 Memo. 10) HBFA's April 11, 1994 Memo. 11) City's May 24, 1994 Memo. 12) HBFA's July 11, 1994 Memo. 13) City's August 30, 1994 Memo Presenting City's Last Proposal. 14) Resolution No. (ib and Huntington Beach Fire Department Policy D-14. MTU/MPD FM /• ilk' CITY OF I- UNTINCTON SEACH INTER -DEPARTMENT COMMUNICATION HL"NCTON BEACH To: Philip Tamoush, Arbitrator & TTACH ENT 1 From: Michael P. Dolder., Fire Chief Date: April 1, 1993 Subject: DISTRIBUTION OF CITY'S MINIMUM STAFFING BRIEF Enclosed are three (3) copies of the City's Brief on Minimum Staffing. The Briefs are formatted with first a boxed City proposal and second with a boxed Huntington Beach Firemen's Association (HBFA) proposal for each of the sections of Article 4 where agreement has not been reached. Following the City's and HBFA's proposal for each section is a discussion of the impacts and benefits of the language. Where appropriate, examples were given to facilitate in understanding the impacts of the proposal. One of the three (3) copies is addressed to Mr. Silber; and as we agreed, will be distributed by you when both the City's and the HBFA's final Briefs are submitted. On behalf of the City, I would like to thank you for your patience and tolerance in*this process. Hopefully, all parties have learned from the process, as I know I have, and the future will bring better communications between all parties. If you have any questions on the City's Brief please call me at 714-536-5402. MPD/cgs Enclosure c: Daniel C. Cassidy, Attorney, Liebert, Cassidy & Frierson Buford Nichols, President, William Hamilton & Associates William H. Osness, Personnel Director William R. Cooper, Division Chief/Operations J� City ®f Huntington Beach �- 2000 MAIN STREET CALIFORNIA92648 FIRE DEPARTMENT April 1, 1993 Mr. Philip Tamoush, Arbitrator Post Office Box 1128 Torrance, CA 90505-0128 Subject: BRIEF ON CITY'S MINIMUM STAFFING PROPOSAL Dear Mr. Tamoush: The following is an explanation of the City's position on its final minimum staffing proposal. The City is interested in language that is clear and will avoid disputes in its application. A. DEFINITIONS CITY'S PROPOSAL IIBFA'S PROPOSAL A. 1. APPARATUS shall be defined as any Fire Department vehicle utilized to respond to fires, other emergencies, or work assignments for which the State of California requires a California Class A, Class B, or Class B Firefighter restrictive driver's license and/or requires special skills, knowledge or training to operate. A. (t) A SPECIAL PURPOSE APPARA TUS is all Fire Department apparatus otherwise defined in this Article and utilized for response to alarms. The current Fire Memorandum of Understanding (MOU) does not generally define apparatus. However, the MOU does specifically define Fire Engines and Fire Trucks as Apparatus (Page 23). In addition, the MOU does not specify or restrict Apparatus ownership to the City of Huntington Beach or to the Fire Department. The City's definitions of Apparatus and Special Purpose Apparatus are generic to any vehicle which requires a specific drivers license of Class B or greater to operate. The City's language provides for the opportunity to continue using vehicles which may be regularly operated by the Fire Department as well as other Apparatus which are available through other City departments, other governmental agencies, or private sources. BRIEF ON CITY' S MINIMUM STAFFING PROPOSAL April 1, 1993 Page 2 Three (3) examples of the Fire Department using equipment from other Cities or Departments are as follows: 1. When City fire apparatus is sent out for repairs and no reserve vehicles are available the Fire Department attempts to borrow fire apparatus from other cities. Specifically, ladder trucks have been borrowed from the Cities of Westminster and Santa Ana. 2. Every year a Public Works Department water tanker truck is used for responses to grass fires during the summer months beginning with the July 4th period and continuing through late summer. 3. From time to time, Fire Department personnel operate flatbed trucks, forklifts, or tow trucks at the Central Net Training Center. Most importantly, during major disasters such as earthquakes and floods, Special Purpose Apparatus is needed to manage specific emergency incidents. Operation of these vehicles in all examples is allowed under the City's definition of Apparatus. The language proposed by the HBFA restricts Apparatus to Fire Department vehicles only and limits the City's ability to manage emergency or operational demands. The Association says that in emergencies any Apparatus may be operated. However, the day-to-day operations of the Fire Department include emergencies [Section B-10(b)]. The Association's clause "and/or requires special skills, knowledge, or training to operate" would permit employees to refuse to operate Apparatus or to file grievances by alleging that he/she does not possess the requisite skills or knowledge. The Association states that the specific language "Fire Department vehicle" is necessary since the vehicles have to meet certain standards and they are not sure whether other vehicles are maintained as well as Fire Department vehicles. First, all City- . owned vehicles, regardless of Department assignment, are maintained in a safe operating condition. Second, the City, as a whole, has never had a situation where an employee had an accident due to the unsafe condition of a non -Fire Department vehicle. A. DEFINITIONS (continued) CITY'S PROPOSAL 2. A FIRE COMPANY is a flri ghting force commanded bar a single C©mpanp Commander. HBFA'S PROPOSAL A. 2. A FIRE COMPANY is a group of firefighting personnel commanded by a single Fire Captain. The contract is meant to define relationships between City representatives and unit members. The Association professes that it is their intent to restrict the application of the contract to unit members only. This is an unmanageable approach. BRILEF ON CITY'S MINMUM STAFFING PROPOSAL April 1, 1993 Page 3 The City's definition of Fire Company is generic and identifies the person in charge as a Company Commander. The Association has stated that, "Employees do not recognize the Company Commander title, but they do understand Fire Captain." It is difficult to accept this contention since current Fire Department policies use the term Company Commander at least fifty-four (54) times as the person in charge of a Fire Company. Two (2) policies specifically referenced in the MOU, Policy B-2, Rules and Regulations dated October 7, 1983, and Policy C-2, Uniforms dated April 10, 1987, both references Company Commander extensively. Also, the Gentile arbitration decision references Company Commander and the City's Policy B-2. Company Commander is a title description of an employee's status while performing a given role. The Company Commander role is interchangeable among employees, depending upon service need and employee qualifications. The use of Company Commander recognizes that the City can use the following ranks: Fire Captain, Battalion Chief, Division Chief or Fire Chief, as qualified ranks to command a Fire Company. An example of this past practice is the situation where the second arriving Battalion Chief was assigned division responsibilities and the fire was advancing in an area where there was no Engine Company coverage. The Battalion Chief assumed the role of Company Commander, reassigned two (2) Firefighters and attacked the fire. When a regular Company Commander became available, the Battalion Chief resumed divisional responsibilities. Under the HBFA's proposed language this would not be possible. In addition to performing the role of Company Commander, Fire Captains also perform other roles that have title descriptions of: Deputy Fire Marshal -Training, Deputy Fire Marshal -Operations, Deputy Fire Marshal -Petro Chem, Deputy Fire Marshal -Development and Deputy Fire Marshal - Programs. Captains in these roles are considered mid -managers. However, these same Deputy Fire Marshals regularly serve as Company Commanders when they work overtime or when extra engines are placed in-service. The design of the Huntington Beach Fire Department's service delivery system includes staffing augmentation procedures that use qualified forty (40) hour public safety staff and overtime personnel. Fire Prevention staff working forty (40) hours, Monday through Friday, which includes Deputy Fire Marshals, are assigned to staff extra engine companies during high wind conditions or special emergency situations such as earthquake predictions, flooding and civil disturbances. The HBFA's proposal limits the rank of a Company Commander to a Fire Captain only. This restriction is further emphasized in HBFA's proposal in Section B-10 where minimum staffing shall be exclusively from "members of the Huntington Beach Firemen's Association representational unit." BRIE1F ON CITY'S MINIMUM STAFFING PROPOSAL April 1, 1993 Page 4 B. MINIMUM STAFFING B. 1. may, be assigned various duties. Fire Companies i they operate with. a Fire apparatus or with more: t (1) vehicle or apparatus, when the vehicle is opera with a minimum of two (. CITY'S PROPOSAL shall be staffed with a minimum of ti g or other: emergency related activit e 7e Co' antes or Truck s , They. may, however;: personnel anal it as'routhie cements of rnrs-;�'ecnons]ta[E;>be requtreu ; pparatus.responding Corte 3 shall be staffed HBFA'S PROPOSAL B. 1. Each Fire Company shall be staffed with a minimum of three (3) personnel and may be assigned various firefighting or other emergency related activities as well as routine duties. Fire Companies are generally assigned as Engine Companies or Truck Companies when they operate with a Fire Engine or Fire Truck apparatus. They may, however, operate without apparatus or with more than one (1) vehicle or apparatus. When operating with more than one (1) vehicle or apparatus, the minimum staffing requirement of this Section shall be required when the vehicle is operated on an incident scene. Except for the last sentence of the City's proposal, both the City's and the HBFA's language are identical. The City language is necessary for three (3) reasons: 1. The City's proposed Code 3 staffing language clarifies a situation that has been an area of dispute and as such will help prevent future grievances. 2. Station 1-Gothard is currently staffed by a three (3) person Fire Company which is responsible for three (3) different vehicles. The three (3) vehicles include an Engine, a Light/Air Unit, and a HazMat Unit. Since it may be necessary to have a combination of these vehicles respond to an emergency situation, one (1) of these combinations may include an Engine staffed with one (1) or two (2) people. Under these circumstances, specifying the staffing level necessary to respond "Code 3" is appropriate. 3. Engines or Trucks can also be staffed with less than three (3) people as described in Section B- 2(a). Under these circumstances, the vehicle can only respond "Code 3" to single -Engine alarms with two (2) personnel. The City's language does not specify the position or rank required for driving since a person's drivers license determines who is capable of driving a particular Apparatus. Further, the California Vehicle Code does not specify the number of persons necessary when driving Code 3. The only Code 3 vehicle code restriction pertains to the vehicle itself by specifying the type of lights and the type and intensity of a vehicle's siren. Currently, the Fire Department does not provide specific Code 3 driver training to any of its personnel, including a Fire Engineer. However, the Fire Department plans to implement a Code 3 driver training program in late spring or early summer which will be provided to all personnel. BRIEF ON CITY' S MINIMUM STAFFING PROPOSAL April 1, 1993 Page 5 It should be noted that information submitted by the HBFA in support of its position, specifically Union Exhibit #12, primarily addresses minimum staffing during "interior assaults on fires." Additionally, the recent unsuccessful attempt by the International Association of Fire Fighters (IAFF) to have minimum staffing requirements established by the National Fire Protection Association (NFPA) addressed "minimum fire fighter staffing levels for conducting interior fire fighting operations." The City's proposed B.1 and related proposals, B.2(a), B.8 and B.11 limits less than three (3) person response teams to specified activities; none of which involve unassisted interior assaults on fires. B. MINIMUM STAFFING (continued) CITY'S PROPOSAL IIBFA'S PROPOSAL B. 2. (a) [No HBFA Proposal] The City's language defines what happens when, for short time periods (less than four (4) hours), Engine Company staffing drops below three (3) persons. Under these circumstances, limits are placed; on the unit operating with reduced staffing and a second fully -staffed unit is also dispatched. The two (2) person unit can respond to single -Engine responses which include medical calls, trash fires, vehicle fires, or public assistance calls; i.e., child locked in a vehicle. In addition, a second fully -staffed Engine with three (3) persons would also be dispatched, resulting in a total of five (5) people assigned to the call. This is a higher level of response since a normal single -Engine response would only include three (3) people. In every instance, the two (2) person unit would be much closer than an alternate unit since they would only be dispatched into their own response area. The alternate unit would have to come minimally from the adjacent response area and would be slower. The Huntington Beach Firemen's Association has alleged that the City's language is an attempt to establish two (2) person engine companies and do away with three (3) person Engine Companies. This is not true! The City's proposal keeps two (2) people in-service and available and does not interrupt the flow of services. The Huntington Beach Firemen's Association's non -proposal has the effect of taking two (2) on -duty persons and their apparatus out of service, delaying service and placing the public at higher risk. Two examples are as follows: BRIEF ON CI'I Y' S MINNEVIUM STAFFING PROPOSAL April 1, 1993 Page 6 Example One ® Incident: A sixty (60) year old female, who lives two (2) blocks from Station 1-Gothard, has a heart attack and 9-1-1 is called. Situation at receipt of the call: Station 1-Gothard is staffed with a two (2) person Engine Company due to an earlier Firefighter injury. The Department activated its callback procedures; however, the only available replacement Firefighter lives in Oceanside and won't be in for two (2) hours. Station 2-Murdy is staffed with a three (3) person Engine Company and a two (2) person Medic Van. The responses for Example One under the City's proposal and the Association's proposal are as follows: Response under City's proposal: Station 1-Gothard and Station 2-Murdy are dispatched simultaneously. Station 1-Gothard responds Code 3 and is the closest station and arrives within two (2) minutes and begins CPR. Station 2-Murdy is dispatched with the Medic unit responding Code 3 and the Engine responding Code 2. The Medic unit arrives within six (6) minutes and begins Advanced Life Support procedures. The Engine arrives within seven (7) minutes and assists with the call. The total personnel on scene is seven (7) persons. Response under Huntington Beach Firemen's Association's noon -proposal: Station 1- Gothard would not be dispatched and would remain in quarters. Station 2-Murdy would be dispatched Code 3 and both units arrive within six (6) minutes and Advanced Life Support is started. The total personnel on scene is five (5) persons. • Results: The Huntington Beach Firemen's Association's non -proposal provides a slower response time, fewer personnel on scene, and the patient is less likely to survive since treatment was not given within four (4) minutes. Example Two • Incident: A two (2) car accident, involving three (3) persons, occurs at the intersection of Beach Boulevard and Garfield Avenue. One (1) victim is critical and has arterial bleeding. The other two (2) victims have severe injuries. Situation at the receipt of the call: Engine 45 temporarily staffed with two (2) persons, a Captain and an Engineer, is driving to Huntington Beach Medical Center via Beach Boulevard to pick up its regularly assigned Firefighter. On a previous call, the Firefighter was assigned to assist in CPR delivery with ambulance personnel and City Paramedics.. At the time of the accident, Engine 45 is one (1) block away heading towards Garfield Avenue and hears the crash. Station 1 - Gothard, the closest Station is 1.2 miles away and houses Engine 41 which is staffed with a three (3) person Engine Company. BRIEF ON M Y'S MINMUM STAFFING PROPOSAL April 1, 1993 Page 7 The responses to Example Two under the City's proposal and the Association's proposal are as follows: Response under City's proposal: Engine 45, staffed with two (2) persons, hears the crash and arrives on scene within thirty (30) seconds and reports the incident to communications. Engine 45 is reassigned to the incident and immediately begins triaging the victims and applies direct pressure to the bleeding artery. Engine 41 located 1.2 miles away and staffed with three (3) people is also dispatched to the incident. Engine 41 arrives on scene within four (4) minutes and Medic 42 arrives on scene within six (6) minutes. The total personnel on scene under the City's proposal is seven (7) people. • Response under HBFA's non -proposal: Engine 45 staffed with two (2) persons hears the crash and arrives on scene within 30 seconds and reports the accident and the number of victims. However, Engine 45 cannot be assigned to the call because it is staffed with two (2) people and, therefore, continues to the hospital and drives past the accident. Engine 41, located 1.2 miles away is staffed with three (3) people and Medic Unit 42, located 3.7 miles away and is staffed with two (2) paramedics are dispatched to the incident. Engine 41 arrives on scene within three and one half (3.5) minutes and begins triage and applies direct pressure to the bleeding artery. Medic 42 arrives within six (6) minutes. The total personnel on scene is five (5) persons. Results: The City's proposal puts more people on scene quicker and treatment begins within 30 seconds of the accident's occurrence. Assuming a blood loss rate of 500 ml per minute only one (1) pint of blood is lost. Because there are seven (7) persons on scene, no additional resources are required except for the Basic Life Support transportation unit. Each patient has two (2) persons assigned and one (1) person is assigned as scene commander. The HBFA's non -proposal prohibits the first two (2) Fire Department personnel from helping in the emergency. Bleeding is not stopped for a full three and one half (3.5) minutes and seven (7) pints of blood are lost, putting the victim's life in immediate danger. The HBFA has distributed IAFF documents (Union Exhibit #12) which discusses the legalities of firefighting with two (2) persons. All of the examples provided in their materials involve interior firefighting and non-compliance is based on OSHA requirements for a stand-by person when breathing apparatus is used. The City's proposal would not place personnel in any of the situations cited by the HBFA documents. First the two (2) person company would not be assigned to any incident alone. An extra fully -staffed Engine will always be assigned making two (2) extra people available on any single Engine incident. Regardless of how many personnel are assigned to a unit, the real issue is how many people are actually assembled on the emergency scene. As the two (2) examples above show, the City's proposal always places two (2) extra people on scene. The personnel also get there quicker. The community pays for and expects the highest level of service possible which is what the City's proposal provides and the HBFA's non -proposal does not. PRIED ON CITY'S NILNIMUM STAFFING PROPOSAL April 1, 1993 Page 8 B. MINIMUM STAFFING (continued) CITY'S PROPOSAL I-IBFA'S PROPOSAL 8. Z Each in-service Hazardous Materials apparatus shall be staffed with a Fire Company of which the regularly assigned personnel shall be specially trained in Hazardous Vaterials incident practices and procedures in accordance with Article V, Section E, Part 5 of the Fire MOU. The Hazardous Materials Unit and the Light/Air Unit have been the subject of a previous grievance (Joint Exhibit #4 - Gentile Decision). Because of the grievance history and because these Units operate differently than other Engine Companies, it is important that clarifying language be added to the MOU. The HazMat Unit, for example, can respond with the Light/Air Unit. Under these circumstances, the HazMat Unit staffing could be one (1) or two (2) and the Light/Air staffing could be two (2) or one (1). The City's proposed language clarifies what happens when the HazMat Unit arrives on scene. In addition, because the City operates under a Hazardous Materials Joint Powers Authority (JPA), it is important to clarify how Huntington Beach Fire Department personnel are assigned and interact with these Units. This language is consistent with past practice and is intended to avoid possible misunderstandings and interpretation differences. Without this language, it could be argued that the HazMat Unit must always be staffed with three (3) people and that they could only be assigned HazMat duties on City equipment. In order for the City to have both the HazMat Unit and the Special Purpose Apparatus respond simultaneously, an extra Engineer would be required if the HBFA's proposal is adopted. This would mean upgrading a Firefighter to Engineer and having two (2) Engineers on -duty at all times at an annual increased cost of approximately $24,000. If a fourth person were added to the Unit at an Engineers rank on each shift, the annual cost would be approximately $253,206. BRIEF ON CITY' S MINIMUM STAFF LNG PROPOSAL, April 1, 1993 Page 9 B. MINIMUM STAFFING (continued) CITY'S PROPOSAL Speeid::: urp se i# zrrafu : shall b staffz d. with one (1) � e�'��iijv responding de 2 axd with zxa is than two () pez<sor:nelh+en t'espQtidengde 3 �� alarms HBFA'S PROPOSAL B. 8. Special Purpose Apparatus shall be staffed with no less than one (1) Fire Engineer and either one (1) Fire Captain or one (1) Firefighter when responding Code 3 to alarms. The City's language clearly specifies that a Special Purpose Apparatus can be staffed with one (1) person unless it responds Code 3. The same justification for the City's position applies as is discussed in Section B-1 above. The Association's proposal, in addition to requiring at least one (1) Fire Engineer position, lacks clarity as to when the Special Purpose Apparatus can respond with one (1) person. Possession of a license to drive Apparatus should determine which available staff should be present to drive. The Association's language unduly restricts the deployment of personnel. For example, if a Fire Engineer is not present, even though a licensed driver is present, the Apparatus could not be driven. The HBFA's language always requires the presence of a Fire Engineer and means that two (2) Engineers would be required in order to have multiple unit assignments. The HBFA's proposal costs approximately $24,000 annually if the assigned Firefighters were reclassified to Engineers. However, if a fourth person at the Engineer rank is added, the annual cost would be approximately $253;206. B. MINIMUM STAFFING (continued) CITY'S PROPOSAL ntum staffing asset forth zn t isArticle, sh rll:be Spcnliy trnd rxclusiv ly fram'1'ubl c Safety empployees `of thei., un: mgtan. $eacl4 ;1�'Ir�e l?z'par�ent for all routine activities iznd tsarmal slr:rlutizns Reserve Firefighters shrill nz;f'be used tv meet minimum sta zn levels HBFA'S PROPOSAL B. 10. The minimum staffing as set forth in this Article, shall be specifically and exclusively from members of the Huntington Beach Firemen's Association representational unit (excluding Reserve Firefighters) for all routine activities and normal shift duties. The City's language is the existing, long-standing practice of the City whereby public safety employees of the HBFD are used for all routine activities and normal shift duties. This would include qualified Chief Officers who are safety members but not in the HBFA representational unit as well as Fire Captains, Fire Engineers, Firefighter Paramedics and Firefighters who are also safety members and who are in the HBFA representational unit. As previously described in this Brief under section A.2, past practice has been that Chief Officers can also act as Company Commanders. BRIEF ON CITY'S MDO1v UM STAFFING PROPOSAL April 1, 1993 Page 10 The Association's language precludes using other Huntington Beach Fire Department public safety members except for Huntington Beach Firemen's Association (HBFA) members. This restriction could effectively deprive the public of needed fire and life safety services. The current staffing policy requires the City to staff, "with sufficient personnel to assure the safety of employees and control of risk." This obligation can be addressed through the use of any Huntington Beach Fire Department safety personnel. Chief Officers of the Huntington Beach Fire Department are all safety personnel and are properly licensed to drive vehicles used by the Department. They are, however, not members of the HBFA representational unit. Restricting personnel assignments to the HBFA representational unit members limits the City's ability and flexibility to provide effective and responsive service to the community. B. MINIMUM STAFFING (continued) CITY'S PROPOSAL B, < 11 �n the,ent a Fire Engineer is detached from a C'vtnpay, another meirtber` properly fie may. drive the apparatus an 4 temporary basis.: However, tf tr.mMiber �s a ced ed apparatus aperatvr, then: a she may dnve.and operate apparatus on..a temporary bases as defined in 2(a) abt�ve HBFA'S PROPOSAL B. 11. [No HBFA Proposal] The Department needs flexibility to assign the operation of vehicles to licensed and trained employees. Such employees need not be Fire Engineers. The City's proposal clarifies that a person properly licensed can drive an Apparatus and those that are certified as apparatus operators can drive and operate Apparatus. This temporary replacement is for periods of four (4) hours or less except as allowed in policies providing for acting assignments. The existing Job Description for Firefighter provides that a Firefighter can operate an Engine if the Engineer is absent. The City's proposal is also needed to clarify situations when implementing Section B-2(a) such as in situations where the Fire Engineer is detached and the two (2) remaining personnel are qualified to drive and single Engine alarm occurs in their service area. B. MINIMUM STAFFING (continued) CITY'S PROPOSAL B. I2. ;[1 CI�'Y:Proposalj' HBFA'S PROPOSAL B. 12. One (1) Fire Engineer shall be assigned as Battalion Chiefs Aide. The net effect of the HBFA's proposed language would be to require the City to maintain three (3) Fire Engineer positions. BkIEF ON CiTY'S MINIMUM STAFFING PROPOSAL April 1, 1993 Page 11 In the previous negotiations, the City consistently rejected HBFA proposals to include a specific number of positions in the MOU. It was and continues to be the City's contention that there is a direct correlation between the number of positions in the Fire Department and service levels. Under Government Code section 3504 and ARTICLE XIII - MANAGEMENT RIGHTS of the 1990/93 MOU between the City and Firefighter's Association, the City has the right to establish service levels. With the exception of the HBFA's requested inclusion of B.12, Article 4 only addresses the staffing of equipment or apparatus if the City determines that such equipment or apparatus is to be operated. It does not require that a set number of positions be maintained in the Fire Department. This is consistent with the stated objectives of Article 4 and the Association's previous withdrawal of their request that the number of stations and requisite staffing be included in the MOU, a request tantamount to establishing a specific number of positions. Currently, the Battalion Chief (B/C) Aide positions are filled at the option of the City. Most cities do not have B/C Aide positions and the City provides this as an extra service level. As the name implies, this employee assists the Battalion Chief, as required, and performs essential administrative tasks. The staffing section of the MOU has never required the assignment of a B/C Aide. The Association's language changes the status quo to require the City to always have a B/C Aide on - duty even if a Battalion Chief is not on -duty. This language is an intrusion into the City's right to determine the level of service and the organization of the Department. The Association's proposal does not, in reality, raise safety issues that cannot be dealt with in alternate ways. The Association has raised the issue that the Battalion Chief Aide position is a budgeted position and, therefore, no additional cost would be incurred as a result of the Association's proposed new MOU language. The Association's conclusion is not true. The City's budget is simply a spending plan and not a mandate to spend or an obligation to spend. Operational needs of the Department and the City can change including shortfalls in revenues. For example, the FY 1992/93 budget, which began on July 1, 1992, includes three (3) new Paramedic positions. As of March 31, 1993, none of these positions have been filled. Also, the Fire Department's Storekeeper has been funded but not filled since FY 1991/92. The City has a hiring freeze in place and no positions are filled unless special approval is received. Adopting the Association's language would mandate the City to always fill the Battalion Chief Aide positions at an annual cost of $242,406. MUEI ON CI`Y V S MINIMLTI'v1t STAFFING PROPOSAL April 1, 1993 Page 12 C. MINIMUM STAFFING OF COMMUNICATIONS CITY'S PROPOSAL, HBFA'S PROPOSAL, C. Presently, there are three (3) regularly assigned personnel for the Fire Dispatch Center, consisting of two (2) qualified Fire Controllers and one (1) Fire Controller- Shift Supervisor, who are on -duty at all times. The parties shall engage in the Meet and Confer process in the event that the workload of the present employee complement is affected due to any policy decision of the Joint Powers, including any deletion or addition to the present member status of the Joint Powers Authority. (The current cities are Fountain Valley, Huntington Beach, Newport Beach and Westminster.) The City's proposed language provides for a minimum of two (2) Fire Controllers per shift. This staffing level adequately meets the dispatch needs of the City of Huntington Beach, which responds to approximately nine thousand eight hundred (9,800) incidents per year or twenty-seven (27) per day. The City also provides Fire Controllers to the Central Net Operations Authority (CNOA) which responds to approximately twenty-three thousand (23,000) incidents per year or sixty-three (63) per day including Huntington Beach incidents. The Fire Dispatch Center is equipped with computerized equipment and was staffed with two (2) Fire Controllers per shift until February 1990. At that time, staffing was increased to three (3) Fire Controllers per shift in order to begin Emergency Medical Dispatching (EMD) procedures. EMD dispatching is an optional service level initiated by the Central Net Fire Chiefs. If the HBFA`S language were adopted, three (3) Fire Controllers would be required regardless of the service level or the number of agencies participating in the Central Net Operating Authority (CNOA). The MOU is binding on the City of Huntington Beach, not CNOA. If CNOA reduces its service levels and staffing levels, then the City of Huntington Beach would be financially responsible for the extra level of service and personnel. The Association has not introduced evidence of a safety hazard associated with operating the Dispatch Center with less than three (3) people. Although no records are kept on 9-1-1 calls received, it is estimated that the Dispatch Center receives approximately one hundred (100) 9-1-1 calls per day, or four (4) calls per hour and dispatches approximately seventy (70) emergencies per day, or three (3) emergencies per hour. This call level could easily be dispatched with fewer Fire Controllers than are currently provided. BRIEFON CITY'S MINIIwI1 M STAFFING PROPOSAL April 1, 1993 Page 13 D. FILLING OF VACANCIES CITY'S PROPOSAL IIBFA'S PROPOSAL D. S. When a vacancy exists on any apparatus, the vacancy shall be filled rank for rank based upon the provisions of the Fire Department Policy D-3 (Callback Staffing System). Umpever-, in the event that a vaeoney eanne! befiged on a vohintai5�j mandatory holdover-, or order- in basis-, the vaean" then may befdled ai the diseretion of the F4re Chief by� _' * _ off duty member ofthe some rank. *Dropped by HBFA on March 17, 1993 The City's proposed language provides: 1. The quickest procedure for filling vacancies 2. Allows qualified on -duty forty (40) hour safety personnel who hold the ranks of Fire Captain, Fire Engineer, Firefighter Paramedic or Firefighter to be utilized immediately before off -duty personnel are ordered to come back. 3. Allows any rank to be transferred because of a particular skill level needed before order -in procedures are initiated. This is especially critical in filling Paramedic positions. As an example, if a Firefighter Paramedic vacancy exists and a Firefighter Paramedic is not immediately available, then a Captain Paramedic or an Engineer Paramedic can be immediately transferred. The vacant Captain or Engineer position can then be filled with a Captain or an Engineer who is not a Paramedic. The HBFA'S proposed language would not allow the transferring of personnel until order -in procedures were exhausted. The City's proposal provides for flexibility in filling vacancies by first calling back off -duty personnel on a voluntary basis (it should be noted that the D-3 Policy permits all unit employees to sign up for voluntary overtime) and, if unsuccessful, holding over on -duty members. If a vacancy comes up other than at morning changeover and no one can be held -over, then the City's proposal would allow the transfer of any qualified member, including forty (40) hour personnel, before ordering off -duty personnel back to work. The City's proposal will expedite obtaining replacement personnel, utilize existing personnel, and will minimize the frequency of ordering people back to duty. The Association's proposal differs in that an off -duty person will be ordered back to duty before an on -duty, qualified person can be transferred. The Association's proposal is less safe in that it restricts the Department's ability to provide timely coverage. BRIEF ON C:ITY'S MINMYJM STAFFING PROPOSAL April 1, 1993 Page 14 The Association has stated that the D-3 Policy provides the necessary flexibility to transfer personnel before ordering personnel back to duty. While the City believes that this should be true, the Association in the most recent occurrence filed a grievance against the City because the City transferred a person, Fire Engineer Wayne Maresh, and appointed him as Acting Captain before the City ordered back an off -duty Captain. E. NEW EQUIPMENT CITY'S PROPOSAL E, " Iny lr'ire Deparfm nt,apparatu,% vehicles,104. nolog cal , #ftgesj and view innovations other than>zeplacement opparatus/equipment will A discussed W 'the A.SSt)CL4TION; along zth an minimum sta In re urremenis; rivr fv beirt lased in It ervi4e ff g q P y ..: .f .... E. NEW EQUIPMENT/ HBFA'S PROPOSAL E. 1. If the CITY desires to change staffing levels not provided for in the MOU, or to utilize any new equipment over and above that presently in use, including Fire Department apparatus or vehicles, and if such intended action will affect the safety or working conditions of affected employees, the CITYand the ASSOCL4 TION shall Meet and Confer in good faith prior to such intended action being implemented 2. The Meet and Confer process/obligation shall apply to any eenmWiated ?d* department action to eliminate any paramedic units)/van(s). *Changed by HBFA on March 17, 1993 The objective of Article 4 is covered in B. MINIMUM STAFFING which states in part, "The CITY shall cause apparatus to be staffed with sufficient personnel to assure the safety of employees and control of risk. For these purposes, the minimum staffing shall be as follows:." This language was carried over from the previous MOU has never been at issue between the City and the Association and has been cited as the basis for the Association's staffing proposals during the negotiations and impasse hearing. It is the City's contention that there must be a nexus between any proposed revision of Article 4 and the "safety of employees and control of risk" for such revision to be justified. The HBFA's proposed E. NEW EQUIPMENT establishes different Meet and Confer requirements than those in 3504.5 of the California Government Code. Under 3504.5, the governing body is required to "give reasonable written notice to each recognized employee organization affected of any ordinance, rule, resolution or regulation directly relating to matters within the scope of representation proposed to be adopted by the governing body or ...and shall give such recognized employee organization the opportunity to meet with the governing body..." It also allows for the emergency adoption of actions affecting items within the scope of representation with Meet and Confer requirements to be satisfied after such adoption. By contrast, the HBFA's proposal requires Meet and Confer and eliminates pre -Meet and Conifer emergency adoption. BRIEF ON CITY' S MINIMUM STAFFING PROPOSAL April 1, 1993 Page 15 Under the HBFA's proposal the City would be required to meet and confer on changes in "working conditions." While the term "working conditions" is not used in defining the scope of representation in 3504 of the California Government Code, the HBFA's attorney indicated, in effect, that it was subsumed under "terms and conditions of employment" referenced in 3504. A position also supported by comments in "Fire Fighters Union, Local 1186, Etc. v. City of Vallejo (1974) 116 Cal.Rptr. 507, 526 P.2d 971, 12 C.3d 608." By reference to "working conditions," the HBFA is attempting to restrict the City's rights under the Government Code and/or expand the issues upon which the City would have to reopen negotiations; many of which may have no relationship to "the safety of employees and control of risk." For example, in "Vernon Firefighters v. City of Vernon (1980), 165 Cal.Rptr. 908, 107 C.A.3d 802," the court held that a rule eliminating the right of firefighters to wash and maintain their private vehicles while on -duty was a "term and condition of employment." The City is well aware of its meet and confer obligations under California Government Code 3500 et. seq. If discussions, as required in the present MOU and the City's proposed Section E, reveal that an item is within scope and involves the safety of employees and control of risk, the City will comply with the Code including notice to the HBFA and opportunity to meet and confer. Section 4 of Union Exhibit #l; "Findings, Conclusions and Recommendations of the Hearing Officer" (Joseph F. Gentile) was cited as supporting, in part, the HBFA's E. NEW EQUIPMENT. On page 10 of his report, Mr. Gentile states, "the Hearing Officer is prepared to find that given the circumstances of the "hybrid" nature of the "multi -unit assemblage," namely, HE-48 being clearly covered by Article 4, Section A, and HHM-6 and the Light/Air not covered, this situation is contractually unanswerable and thus must be placed on the negotiation table in accord with the "meet and confer in good faith guidelines." In the Vallejo case, the Court stated that certain proposals were arbitrable (negotiable) if they affected "the working conditions and safety of the employees" (Emphasis added). Assuming Mr. Gentile had this and /or the previously referenced objective of Article 4 in mind, his decision might support the following revised portion of the Union's clause, "If the City desires to change staffing levels not provided for in the MOU, or to utilize any new equipment over and above that presently in use, including Fire Department apparatus or vehicles, and if such intended action will affect the safety of affected employees, the City and the Association shall meet and confer in good faith." As indicated, the City acknowledges that such changes would necessitate compliance with relevant Government Code provision. The City does not believe that Mr. Gentile's decision supports a requirement to meet and confer on working conditions wherein the "safety of employees or control of risk" is not evident or any other provision of HBFA's E. NEW EQUIPMENT and in particular E.2. "The Meet and Confer process/obligation shall apply to any proposed department action to eliminate any paramedic unit(s)/van(s)." The elimination cf paramedic unit(s)/van(s) would be a consequence of a City decision to reduce or change the "level or organization of fire services" rights guaranteed to the City by ARTICLE 28, MANAGEMENT RIGHTS of the 1990/93 MOU between the City of Huntington Beach and the HBFA. BRIEF ON CITY'S MINIMUM STAFFING PROPOSAL April 1, 1993 Page 16 F. CHANGES IN STAFFING CITY'S PROPOSAL .F. (iVq GITYProposalJ. HBFA'S PROPOSAL F. If the meet and Confer process is implemented under any provisions of this ARTICLE, the parties shall complete the Meet and Confer process (including any impasse process) within sixty (60) days, unless otherwise extended by Mutual agreement of the parties. Section E-3 of the Association's proposal limits the Meet and Confer process, in regards to items in Article 4, to sixty (60) days. Based upon previous experience, this would virtually ensure a minimum of a sixty (60) day delay in putting new equipment into service. Sincerely, MICHAEL P. DOLDER Fire Chief MPD/cgs B:minstfUoc c: Daniel C. Cassidy, Attorney, Liebert, Cassidy & Frierson Buford Nichols, President, William Hamilton & Associates William H. Osness, Personnel Director William R. Cooper, Division ChieVOperations ATTACHMENT 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13! 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARD J. SILBER A Professional Corporation 2134 Main Street, Suite 130 Huntington Beach, CA 92648 (714) 960-7646 Attorney for HBFA CITY OF HUNTINGTON BEACH BEFORE PHILIP TAMOUSH, HEARING OFFICER/ARBITRATOR IN THE MATTER OF CITY OF HUNTINGTON BEACH, Employer, and HUNTINGTON BEACH FIREFIGHTERS ASSOCIATION (HBFA), Employee Association, MINIMUM MANNING NEGOTIATION/ "MEET AND CONFER" POST HEARING BRIEF ON BEHALF OF HBFA 2 3 4 5 6 7 8 9 10 11 12 rr m 13 J Lr +^ O Vl 14 op 5Q 15 cc 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS II INTRODUCTION - BACKGROUND IA. BASIS FOR NEGOTIATIONS 1. In response to the 11/30/91 Arbitration Decision concerning the "Manning of HE-48, HHM-6 (HAZ MAT UNIT) and Light/Air Unit ("Manning Arbitration Decision), that the City/Fire Department acted in violation of the HBFA - City MOU, Art. 4 Minimum Manning Provision; and "that the City was directed to #meet and confer in good faith# with the HBFA regarding the manning of the 'multi- unit assemblage/single company approach", HBFA sought negotiations with the City over this "manning" staffing issue ............................... 1 2. On 9/25/91 the City Administrator/Fire Department issued a Report to the City Council concerning a 115 MILLION EXPENDITURE REDUCTION ALTERNATIVE" ............................................ 2 B. THE CITY HAS A LEGAL OBLIGATION TO NEGOTIATE/ "MEET AND CONFER" WITH HBFA CONCERNING "MANNING/STAFFING" ISSUES ARISING OUT OF THE FIRE DEPARTMENT AND CENTRAL NET DISPATCH CENTER AFFECTING THE "WORK LOAD AND SAFETY" OF FIRE DEPARTMENT BARGAINING UNIT PERSONNEL. 1. "Minimum Manning" policies/procedures constitute a mandatory subject of negotiations within the meaning of "wages, hours,and conditions of employment" of the "MMBA" and the City-HBFA MOU, ARTICLE 4 MINIMUM MANNING............ 3 2. MMBA "meet and confer" obligation mandates '®good faith'$ negotiations over mandatory subjects of bargaining ......................... 5 C. THE MANNING OF HE-48, HHM-6 AND LIGHT/AIR UNIT DECISION (11/30/91) CONFERS AN OBLIGATION UPON THE.CITY TO "MEET AND CONFER" WITH HBFA "REGARDING THE MANNING OF THE 'MULTI -UNIT ASSEMBLAGE/SINGLE COMPANY' APPROACH" ..................... 7 II DISCUSSION 2 A. 3 4 5 6 B. 7 8 9 10 11 12 cc m 13 oCO -; 14 on 0 sQ 15 Cc 16 17 18 19 20 21 22 23 24 25 26 27 PRINCIPLES/SCOPE/AND PARAMETERS OF THE MOU "MINIMUM MANNING" PROVISION CONCERNING FIRE DEPARTMENT APPARATUS The MOU comprehensive/all encompassing "Minimum Manning" Provision establishes the principles/scope and parameters of this Advisory Arbitration Proceeding ......................... 9 MINIMUM STAFFING OF THE "CENTRAL NET DISPATCH CENTER" 1. The City of Huntington Beach is charged with the responsibility of administering the CENTRAL NET DISPATCH CENTER (11DISPATCH CENTER"), as the employing entity (Employer) on behalf of the participating/funding public funding entities/Cities of the 110ENTRAL NET OPERATIONS AUTHORITY/JOINT POWERS AGREEMENT" (Attach. 2 - Exh. 2). The current CENTRAL NET Cities are Fountain Valley, Huntington Beach, Newport Beach, and Westminster (Exh. 11). The City of Newport Beach was added (4th City) to the Central Net in January, 1988, which increased the DISPATCH CENTER's calls by approximately 23% (Exh.. 11)........... 12 2. The current negotiated City - HBFA MOU minimum staffing requirement (10/1/87 - 9/30/90), of "two qualified Fire Controllers on duty at all times,$, (Exh. 1 and 3) was based upon Central Net policies and requirements, that existed at that time .................................... 12 3. The MOU staffing requirement was negotiated, before either: (a) Newport Beach was added to Central Net, increasing calls to approximately 23% (January, 1988)... The FISCAL YEAR 1989/90 TABLE OF ORGANIZATION/BUDGET authorized/provided for staffing of three (3) persons on duty 24 hours a day", by the addition of two (2) Fire Controllers Leadworkers (later designated as "Supervisor") ........ 13 4. Consistent with the above, the evidence adduced at the Impasse Hearing (See Attach. 2 - Exh. 2 - incorporated herein), the "meet and confer" obligation under the MMBA and the MOU "Minimum Manning" Provision (including the current //conditions of employment"), HBFA respectfully submits that the Arbitrator approve the HBFA Proposal regarding 01C. MINIMUM STAFFING OF COMMUNICATIONS for the following reasons ............... 15 1 2 3 4 5 6 7 8 9 10 11 12 rr m 13 J lL -l^ tA vl -; 14 0 5Q 15 rr 16 17 18 19 20 21 22 23 24 25 26 27 28 C. MINIMUM STAFFING OF THE FIRE DEPARTMENT THAT IS CONSISTENT WITH THE PRINCIPLES/ SCOPE/AND PARAMETERS OF THE MOU "MINIMUM MANNING" PROVISION AND THE MMBA "MEET AND CONFER" OBLIGATION ................................... 17 1. "FIRE FIGHTING HAS BEEN RECOGNIZED AS THE MOST HAZARDOUS OCCUPATION IN NORTH AMERICA IN TERMS OF OCCUPATIONAL DEATH AND INJURY STATISTICS. EACH YEAR OVER 100 LINE OF DUTY DEATHS HAVE BEEN RECORDED AMONG CAREER AND VOLUNTEER FIRE FIGHTERS IN THE UNITED STATES ALONE." ........................... 17 2. The current/agreed upon "manning/staffing" Provision requires that "The City shall cause apparatus to be manned with sufficient manpower to assure the safety of employees and the control ofrisk.(B)........................................... 18 3. To ""assure the safety of employees and the control of risk". the current/agreed upon "manning/staffing" provision provides for the "manning"® of ""each engine company with no less than one (1) Fire Captain, one (1) Fire Engineer, and one (1) Firefighter or Firefighter Paramedic."..... 18 4. The current "Minimum Manning"" Provision defines ""apparatus" as Fire Department "Fire Engines"", "Fire Trucks", and "Paramedic Units" (H-4) ............. 19 5-6 The current #'manning/staffing" requirement provides that I'minimum manning —shall be specifically and exclusively from employees of the Huntington Beach Fire Department." (H-2a).......... 20 7. City/Fire Department Proposals that do not assign personnel by classification/rank, and that further establish a "two (2) person Engine Company,", without recognition of rank, are outside the principles/scope/and parameters of the MOU "Minimum Manning"" Provision, and are contrary to the Fire Department/Bargaining Unit rank structure..... 21 8. Special Purpose Apparatus does not refer to classification/rank of the assigned personnel, and fails to recognize the purpose/responsibility/training of the "Fire Engineer" ........................................ 22 1 2 3 4 5 6 7 8 9 10 11 12 m 13 oU) a� 14 �o SQ 15 Cc 16 17 18 19 20 21 22 23 24 25 26 27 28 8. The current provision provides that a B.C. Aide (Fire Engineer) may only be utilized as a „temporary fill-in of four (4) hours or less„ to satisfy a „minimum manning requirement.,, However, as noted by the „Use of Battalion Chief Aides„ Decision (5/19/92), there is no requirement that a B.C. Aide be actually assigned for a full or partial shift ....................................... 24 9. As already noted, these current negotiations arose out of the „Manning Arbitration Decision,,; and the parties have defined the „Light Air Unite as a „Special Purpose Apparatus,,. Thus, HBFA believes that implementation of the City/Fire Department „special apparatus„ Proposal (B-8) will seriously jeopardize the safety of affected personnel, because it omits/fails to define the rank/responsibility of personnel that will operate a „Special Purpose Apparatus". (B-8)........... 25 10. The City/Fire Department Proposal seeks to define "A FIRE COMPANY [as] a firefighting force commanded by a single Company Commander". HBFA defines the responsible person/rank as the „FIRE CAPTAIN01(A-2)................................... 25 12. HBFA seeks to implement a contractual negotiations/',meet and confer„ obligation rather than a „meet and discuss,® obligation for „new equipment/change in staffing", that „will affect the safety or working conditions of affected employees" ............................................. 27 III CONCLUSION ............................................. W. Lr 1� 2 3j 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTACHMENTS NUMBER DESCRIPTION 1 Fire Fightes Union, Local 1186 v. City of Vallejo, 12 Cal.3d 608 (1974) 2 FIRE DISPATCH CENTER (Exh. 2) 3 Minimum Manning Arbitration, Opening Statement, Guy Bennett (Union Exh. 7) 4 H. Beach Fire Dept. D-3 Policy, June 17, 1992 (Union Exh. 8) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES Dublin FF Local 1885 v. Vallev Com. Serv. Dist. PAGES 45 Cal.App.3d 1196..................................... 6 Huntington Beach P.O. Assn. v. City of Huntington Beach, 58 Cal.App.3d 492, 496-499 (5/18/76).............................................. 4 IAFF Local 1186 v. City of Vallejo, 12 Cal.3d 608 526 P.2d 971;(10/1/74)............................3,4,6 7,27 International Association Fire Fighters Union v. City of Pleasonton (1976) 56 Cal.App.3d 959, 976 129--Cal.Rptr. 68, 80................................... 6 Los Angeles County Empl. Assn., Local 660 v. County of L.A. 33 Cal.App.3d(1973)........................... 4 L.A. Civ. Serv. v. Super. Ct. 74 Cal.App.3d 1 (12/1/77).............................................. 6 Vernon Fire Fighters v. City of Vernon 107 Cal.App.3d 802, 814;(7/21/80).................................... 6,7 STATUTES Meyers-Milias=Brown Act (MMBA), ,Gov. Code Section 3500, et. seq ........................3,5,27 National Labor Relations Act ........................... 3 4 5 6 7 12 m 13 J o CO 14 0n sQ 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I INTRODUCTION - BACKGROUND IA. BASIS FOR NEGOTIATIONS 1. In response to the 11/30/91 Arbitration Decision concerning the "Manning of HE-48, HHM-6 (HAZ MAT UNIT) and Light/Air Unit (11Manning Arbitration Decision), that the City/Fire Department acted in violation of the HBFA - City MOU, Art. 4 Minimum Manning Provision; and "that the City was directed to 'meet and --confer in good faiths with the HBFA regarding the manning of the 'multi -unit assemblage/single company approach", HBFA sought negotiations with the City over this "manning" staffing issue. Please see the following Exhibits: Exh. 4 Arbitration Decision, dated 11/30/91; Exh. 5 - HBFA Brief, dated 11/6/91; Exh. 6 - 8/1/90 Central Net Policy Manual, HE-48/Light Air Unit Response; Exh. 7 - H. B. Fire Dept Co. Structure; Exh. 8 - CFR 29-1910 Train. Excerpt; Exh. 9 - Haz-Mat Team Config. Thus, the "Manning Arbitration Decision" determined that Eng. 48 was covered by the "manning structure" as an "Engine Company", manned by a "Fire Captain, Fire Engineer, and Firefighter." However, while HHM-6 - (Haz-Mat Unit) and the Light/Air Unit were staffed by Fire Eng. 48 personnel, the "manning for such units and multi -unit assemblage" were not covered by the MOU Art. 4 Sec. A "Minimum Manning" Provision. Therefore, the Arbitrator directed the City to "meet and confer" concerning the "manning" of Eng. 48, when utilized in "combination with HHM-6 and the Light/Air Unit", or -when HH-6 or the Light/Air Unit was utilized as a "single company", or in combination with each other as a "multi -unit assemblage". 1 1 2 3 4 5 6 7 8 9 10 11 12 rr m 13 .J b 14 ;o <Q 15 T 16 17 18 19 20 21 22 23 24 25 26 27 28 The Arbitrator further determined that "there is no written contractual or manual definition for a "two piece company"; and the undisputed evidence demonstrated that the "two piece Company" approach was never utilized/applied by the Fire Department at any time. (Test. F. Chief Picard) The Arbitrator also referred, to Department Policies defining a "company" as "[a] firefighting force commanded by a single Company Commander". However, a "Commander" is not defined; and neither this Department Policy not its application were negotiated with HBFA. [Fire Dept. Policy B-2, �10/7/83] 2. On 9/25/91 the City Administrator/Fire Department issued a Report to the City Council concerning a 115 MILLION EXPENDITURE REDUCTION ALTERNATIVE". This Expenditure Reduction Program (ERP) would have "change[d] Paramedic service delivery from four `Paramedic Vans to four Paramedic Engines and eliminates] three Firefighter positions" (Exh. 10). This proposed "ERP" Program, which ultimately was not implemented, caused great concern to HBFA; therefore HBFA requested negotiations over ERP's possible implementation. As negotiations progressed, the City/Fire Department submitted a comprehensive "Minimum Manning/Staffing" Proposal; and HBFA responded accordingly. While extensive negotiations between representatives of the Fire Department and HBFA, resulted in Agreement on numerous issues, the parties seek to resolve of the remaining issues, pursuant to this "Impasse Advisory Arbitration" Procedure. Accordingly, HBFA will summarize the legal/factual basis for these Fire Department "minimum manning/staffing" negotiation, and set forth its Position 2 1 2 3 4 5 6 7 8 9 10 11 12 (. T- LU m 13 �J o U) Lr 14 C)o sQ 15 rr 16 17 18 19 20 21 22 23 24 25 26 27 03 concerning the disputed "manning/staffing" Proposals. B. THE CITY HAS A LEGAL OBLIGATION TO NEGOTIATE/"MEET AND CONFER" WITH HBFA CONCERNING "MANNING/STAFFING" ISSUES ARISING OUT OF THE FIRE DEPARTMENT AND CENTRAL NET DISPATCH CENTER AFFECTING THE "WORK LOAD AND SAFETY" OF FIRE DEPARTMENT BARGAINING UNIT PERSONNEL. 1. "Minimum Manning" policies/procedures constitute a mandatory subject of negotiations within the meaning of "wages, hours,and conditions of employment" of the "MMBA" and the City-HBFA MOU, ARTICLE 4 MINIMUM MANNING. a. In Fire Fighters Union, Local 1186 v. City of Vallejo, 12 Cal.3d 608, 116 Cal.Rptr. 507 (1974), the State Supreme Court held that the bargaining requirements of the NLRA (federal precedent) was to be referred to, in order to determine the scope of the "MMBA" "Meet and confer" requirement as to "wages, hours, and other terms and conditions of employment. The State High Court determined that a "constant Manning Procedure" insofar as "such proposal relates to the questions of employee work load and safety" comes within the scope of "wages, hours and working conditions", and is therefore negotiable. (Attach. 1) b. In Huntington Beach Police Officers' Association v. City of Huntington Beach, 58 Cal.App.3d 492, 129 Cal.Rptr. 893 (1976), the Court held that this City could not justify its refusal to bargain over a change in work schedules for police personnel on the basis of management rights language contained in a EER adopted by the City Council. Since the matter was clearly within the scope of "meeting and conferring" under the MMBA, the Court declared, the 91 C u m J o (f) L C Q SQ U rr 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 City's resolution purporting to render work schedules non- negotiable "to be in conflict with the declared purpose of the MMBA and the mandatory "meet and confer" language of Section 3505. This "management rights" provision was therefore declared to be invalid. C. Pursuant to the MMBA "meet and confer/scope of representation" Doctrine, the City is obligated to "meet and confer" with HBFA, concerning either a contemplated/intended action, or an HBFA proposal(s) that affects the "minimum manning/staffing" of Fire Department Apparatus in so far as such action/proposal "relate to questions of employee workload and safety". [Vallejo, supra; Los Angeles County Empl. Assn., Local 660, v. County of L.A. (1973) 33 Cal.App.3d]. d. The City-HBFA MOU, "Art. 4 Minimum Manning" has conclusively established "Minimum Manning" of apparatus as a mandatory negotiable matter by: (1) Declaring that "The City shall cause apparatus to be manned with sufficient manpower to assure the safety of employees and the context of risk;" and (2) Establishing the minimum manning requirements for Fire Department Apparatus and Engine Companies - Fire Engine Company (single or two-piece); Truck Company, Paramedic Unit - as follows: (a) Fire Engine Company - "No less than one (1) Fire Captain, one (1) Fire Engineer, and one (1) Firefighter or Firefighter or Firefighter Paramedic. (b) Two - piece Company - Second Unit - "At lease one (1) Fire Captain and one (1) Fire Engineer". (c) Truck Company - "No less than one (1) Fire Captain, one (1) Fire Engineer, and either two (2) Firefighters" (either/both of 4 rr w m J lL - O to 5� Q U Cl 1 2 3 4 5 6 7 8' 9' 10 11 12 13 14 15 16 17 in in 20 21 22 23 24 25 26 27 ": which could be Firefighter Paramedics). (d) Paramedic Units - No less than two (2) paramedics, from rank of Firefighter, Fire Engineer, or Fire Captain Paramedic.. (e) The MOU "Minimum Manning" Provision provides that: (1) "Minimum Manning" does not apply to Fire Companies, that,are not "in full service and immediately available" (2) The assignment of "Battalion Chief Aide" (Fire Engineer) is recognized. The Battalion Chief Aide is not to fulfill a "minimum manning requirement", but is permitted as a "temporary fill-in of four (4) hours or less"; (3) "Minimum manning" "shall be specifically and exclusively from the [City) Fire Department; (4) "Minimum manning" applies to "all routine activities and normal shift duties", which includes "those emergencies normally handled by the on -duty suppression force; (5) CENTRAL NET DISPATCH CENTER Minimum staffing of "at least two (2) qualified Fire Controllers (Dispatchers) on duty at all times is required 1; (6) "NEW EQUIPMENT". The City/Fire Department is required to discuss" with HBFA, "NEW EQUIPMENT" - "Any Fire Department apparatus, vehicles, technologist changes and new innovations, along with any minimum manning requirements, prior to being placed in full service for immediate response". 2. MMBA t0meet and confers obligation mandates 11good faith'@ negotiations over mandatory subjects of bargaining. a. The scope of representation/negotiations under the "MMBA" includes "all matters relating to employment conditions and I The staffing practice/requirements of the Dispatch Center will be further discussed. 9 1 2 3 4 5 6 7 8 9 10 11 12 m 13 L O (n d; 14 o❑ 5Q 15 Cc 16 17 18 19 20 21 22 23 24 25 26 27 28 employee -employer relations, but not limited to wages, hours and other terms and conditions of employments." Bargaining requirements of the NLRA, and other cases interpreting them could be properly referred to in interpreting the scope of bargaining under the MMBA [Fire Fighters Union v. City of Vallejo, Supra]. The "MMBA" principles to administer employment relations, including the right to negotiate is to have state-wide application [L.A., County FF 1014 v. Monrovia, 24 Cal.App.3d 288 (3/22/72). b. "The obligation; in proper cases, to 'meet and confer' promptly upon request, is absolute" ... Negotiation is required not only concerning wages and hours (both matters which may have budgetary impact), but also concerning 'other terms and conditions of employment; which may have no effect on the budget."' (Dublin FF Local 1885 v. V. Com Serv. Dist.) 45 Cal.App.3d 1196 (2/6/75)] c. A public agency must "meet and confer" over Civil Service Rules; and such requirement is separate/distinct from the public hearing requirement of Sec. 3504.5; such Civil Service rule need Inot be budget related. [L.A. Civ. Serv. v. Super. Ct. 74 Cal.App.3d 1 (12/1/77)] d. In Vernon Fire Fighters v. City of Vernon, 107 Cal.App.3d 802, 820, 165 Cal.Rptr. 908 (7/21/80) the Court affirmed the intent of the MMBA that the term "consultation in good faith" is not to be distinguished from the "meet and confer" obligation. The Court I said: After a lengthy analysis of the meaning of term "consultation in good faith", the court, in International Assn. of Fire Fighters Union v. City of Pleasonton (1976) 56 Cal.App.3d 959, 976, 129 Cal.Rptr. 68, 80, concluded by "perceiving no basis for distinguishing M 1 2 3 4 5 6 7 8! 9 10 11 12 El m 13 L' 14 op sQ 15 2 cc 16 17 18 19 20 21 22 23 24 25 26 27 between the term 'consultation in good faith', as used in Section 3507, and the 'meet and confer in good faith' process defined in section 3505." We agree with this interpretation. The Vernon, supra Court also held that: A "Disciplinary" [Fire Dept.] personnel policy/rule is a "term and condition of employment that is within the scope of representation" of and is subject to the MMBA mandatory "MMBA" "meet and confer" requirements. "Unilateral adoption of such rule without prior notice to or meeting and conferring with the Union was void in its entirety for procedural violation of Sec. 3505 of the Gov. Code." Thus, it is clear that the City's MMBA "meet and confer" (obligation, under the MMBA which is patterned after the NLRA lbargaining requirement, has been construed in a broad manner'to (include within its scope, as "terms and conditions of employment", 1proposed Fire Department "Minimum Manning" policies/procedures, that affect "employee work load and safety". [Vallejo, supra] C. THE MANNING OF HE-48, HHM-6 AND LIGHT/AIR UNIT DECISION 1 (11/ 3 0/91) CONFERS AN OBLIGATION UPON THE CITY TO "MEET AND CONFER" WITH HBFA "REGARDING THE MANNING OF THE 'MULTI -UNIT ASSEMBLAGE/SINGLE COMPANY' APPROACH". In reaching his "Manning Arbitration Decision" (11/30/91), IlArbitrator J. Gentile concluded: "the City and Department must 'meet and confer in good faith' with the HBFA as to the manning of the 'multi -unit assemblage/single company' as referenced in Department Policy 29. This remedy is based on the initial finding that there existed violations of Article 4 when the HE=48 was used and staffed in combination with HHM-6 and the Light/Air Unit." (Gentile Decision, pages 10-11)" "The Hearing Officer is not prepared to find that the word "discussed" as used in Article 4, Section D, means "meet and confer in good faith" as that phrase is used in California's public sector labor laws; the arguments of the HBFA, though persuasive on this point, would have the Hearing Officer ignore the ordinary and 7 1 2 3 4 5 6 7i 8 9 10 11 12 13 14! 15 16 17 18 19 20 21 22 23 24 25 26 27 28 customary meaning of the word. However, the Hearing Officer is prepared to find that given the circumstances of the "hybrid" nature of the "multi -unit assemblage," namely, HE-48 being clearly covered by Article 4, Section A, and HHM-6 and the Light/Air Unit not- covered, this situation is contractually unanswerable and thus must be placed on the negotiating table in accord with the "meet and confer in good faith" guidelines. In reaching the above remedy, the Hearing Officer found persuasive the application of three maxims of construction: (1) unless indicated otherwise, words are to be given their ordinary and customary meaning; thus, as already noted, the word "discussed" was viewed in this sense; (2) words are to be judged by their total context; thus, all provisions found in Article 4 were considered as integrated law; thus, the decisional law as found in such cases as Fire Fighters Union, Local 1186 v. City of Vallejo, 12 Cal.3d 608, 116 Cal.Rptr. 507 (1974) and Huntington Beach Police Officers' Association v. City of Huntington Beach, 58 Cal.App.3d 492, 129 Cal.Rptr. 893 (1976) was persuasive. [2]. Therefore, it will be the recommendation of this Hearing Officer to the Personnel Commission that the city and Department must "meet and confer in good faith" with the HBFA as to the manning of the "multi -unit assemblage/single..." Therefore, pursuant to the "Manning Arbitration Decision", the City is obligated to "meet and confer in good faith" with HBFA concerning that "multi -unit assemblage/single company" approach, or any other apparatus/unit not contemplated/covered by the MOU "Minimum Manning Levels" provision, but that affect Fire Department employees "work load and safety". Furthermore, the Arbitrator found that a "basic Fire Company (Engine 48) " is staffed by a "Fire Captain, Fire Engineer, and a Firefighter"; and that HHM-6 and the Light/Air Unit (housed at Gothard Station) are. "manned/staf fed" by the designated Engine 48 personnel. 93 Cr w m c J o � n L �Q U rr 1 2 3 4 5 6 7 81 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. II DISCUSSION PRINCIPLES/SCOPE/AND PARAMETERS OF THE MOU "MINIMUM MANNING" PROVISION CONCERNING FIRE DEPARTMENT APPARATUS The MOU comprehensive/all encompassing "Minimum Manning" Provision establishes the principles/scope and parameters of this Advisory Arbitration Proceeding: (1) The purpose of the "Minimum Manning" Provision was to establish "Minimum Manning" for existing/known Fire Department apparatus: "Fire Engine Company, Truck Company, and Paramedic Units". (2) The "manning" levels with "sufficient manpower" for Fire Department apparatus were established "to assure the safety of employees and control of risk". (3) Arbitrator Joseph Gentile concluded that the "Minimum Manning" level for an Engine Company was "one (1) Fire Captain, one (1) Fire Engineer, and one (1) Firefighter." The "Manning Arbitration Decision", approved by the, Personnel Commission, is binding upon the City/Fire Department and HBFA. (4) "Two-piece Company". Only when a "second unit" of a "two- piece company was [to be] utilized", were two (2) personnel, one (1) Fire Captain and one (1) Fire Engineer permitted. However, Fire Chief Picard's testimony conclusively established that a "two piece company was never utilized". (5) "Minimum manning/staffing" is to be applicable "for all routine activities and normal shift duties", which "shall include (those emergencies that would normally be handled by the on -duty 0 1 2 3 4 5 6 7 8 9 10 11 12 rr m 13 0 CO 14 00 sQ 15 16 17 18 19 20 21 22 23 24 25 26 27 28 suppression force". (6) "Minimum manning"/staffing of Fire Department apparatus,! is expressly applied to the HBFA Fire "Suppression" Bargaining Unit Classifications/Ranks, of: "Firefighter, Fire Engineer, and Fire Captain", and the "Paramedic" Classifications. Also, the "Minimum Manning" Provision recognizes the "Battalion Chief (BC) Aide" (Fire Engineer), assignment, and permits a "fill-in of four hours or less". (7) "Minimum Manning" is to be "specifically and exclusively from employees of the Huntington Beach Fire Department". In view of the referenced classifications, and the "Filing of Vacancies" on a "rank for rank basis", the Fire Department "minimum manning" requirement has only been applied to HBFA bargaining unit personnel. (8) The current MOU provides: "ARTICLE II - EXISTING CONDITIONS OF EMPLOYMENT A. Excerpt as expressly provided herein, the existing wages, hours and other terms and conditions of employment within the lawful scope of representation of the ASSOCIATION that are contained in prior Memoranda of Understanding between the parties hereto and which are currently applicable to employees covered herein, shall remain in full force and effect. B. When used in this Memorandum of Understanding (MOU) the work "staffing" shall have the same meaning as the word "manning", and are used interchangeably."' (9) The EER "IMPASSE PROCEDURE" (Sec. 9.1) selected by the i parties is "Advisory Arbitration" not, (b) Fact Finding or (d) a Personnel Board Hearing. HBFA submits, that consistent with the MMBA "meet and confer" (obligation, concerning "minimum manning/staffing" requirements of 10 1 Cl w m J o Lr) u: d� to <Q U rr 5I6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 the City/Fire Department, the Arbitrator should render his Award, and approve only those "Manning/Staffing" Proposals, that are within the scope/principles/and parameters of the current MOU "Minimum Manning" Provision; the Manning Arbitration. Decision (11/30/91); and the practice/precedent of the parties that has applied/construed such "Minimum Manning" Provision, and conversely should reject those proposals, that are contrary thereto. 11 1 2 3 4 5 .�- 6 8 10 (, �v 12 l ' 14 sd 15 16 17 18 19 20 21 22 23 24 25 26 27 1 B. MINIMUM STAFFING OF THE "CENTRAL NET DISPATCH CENTER" 1. The City of Huntington Beach is charged with they responsibility of administering the CENTRAL NET DISPATCH CENTER (1/DISPATCH CENTER"), as the employing entity (Employer) on behalf of the participating/funding public funding entities/Cities of the "CENTRAL NET OPERATIONS AUTHORITY/JOINT POWERS AGREEMENT11 (Attach. 2 - Exh. 2)` The current CENTRAL NET Cities are Fountain Valley, Huntington Beach, Newport Beach, and Westminster (Exh. 11). The City of Newport Beach was added (4th City) to the Central Net in January, 1988, which increased the DISPATCH CENTER's calls by approximately 230 (Exh. 11). The City 1992-1993 FISCAL YEAR Budget recognizes the "efforts to formalize a Joint Powers Agreement to provide cooperative dispatch and training services with neighboring cities" (Exh. 9, and 1-11). Since Huntington Beach is the designated Employer of Central Net employees, HBFA is the bargaining representative/on behalf of such Fire Controller employees, who are thus covered by the City - HBFA MOU (Exh. 1 and 13). Accordingly, unless the JOINT POWERS AGREEMENT were to be terminated, employee "wages, hours, and conditions of employment", including -"Minimum Staffing", must be determined/negotiated with HBFA, on the basis of the policies and requirements of the JOINT POWERS AUTHORITY, rather than the present Ior speculative future needs of the City of Huntington Beach/Fire Department. Thus, the City of Huntington Beach/Fire Department has no authority to alter Central Net Policies, or to negotiate with HBFA, on behalf of itself, rather than the JOINT POWERS AUTHORITY. 2. The current negotiated City - HBFA MOU minimum staffing 12 1 2 3 4 5 6 7 8 9 10 11 12 rr m 13 0� d� 14 L 00 5Q 15 If 16 17 18 19 20 21 22 23 24 25 26 27 28 requirement (10/1/87 - 9/30/90), of "two qualified Fire Controllers on duty at all times", (Exh. 1 and 3) was based upon Central Net policies and requirements, that existed at that time. 3. The MOU staffing requirement was negotiated, before either: (a) Newport Beach was added to Central Net, increasing calls to approximately 23% (January, 1988); (b) A second lead worker was appointed, with minimum staffing of three (3) Dispatchers on duty during "peak hours", [1300 (1 p.m.) and 2000 (10 p.m.)] (May 1, 1988)]; (c) The FISCAL YEAR 1989/90 TABLE OF ORGANIZATION/BUDGET authorized/provided for staffing of three (3) persons on duty 24 hours a day", by the addition of two (2) Fire Controllers Leadworkers (later designated as "Supervisor") The REQUEST FOR REVISIONS TO TABLE OF ORGANIZATION STATES: "Addition of two Fire Controllers Leadworkers will allow full time staffing of three persons on duty 24 hours a day. Increase in job duties, i.e., EMD and tactical dispatching for major incidents necessitates having three fire controllers on duty at all times. Also allows for intermediate level of supervision and more manageable span of control." (Attach. 2 - Exh. 2 - incorporated herein); (d) In February, 1990, two newly hired Fire Controllers were assigned to their own shifts, so that at all times, three Dispatchers on duty (two Fire Controllers and one Fire Controller Leadworker/Supervisor), has become standard staffing (Exh. 2). The purpose of the MOU "minimum" staffing requirement, an established "condition of employment", is to carry out the "Net 6 Chiefs"' Operational Policies and.Procedures that have been established on behalf of the JOINT POWERS AUTHORITY/CENTRAL NET DISPATCH CENTER (Exh. 1.11 and 4). Pursuant to that Policy (EMD and Tactical Dispatching), one (1) Dispatcher takes incoming calls; one (1) 13 rr w m CO if �o 5Q U Ir 1 2 3 4 5 6 7 81 9' 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dispatcher dispatches emergency responses; and one (1) "Lead/Supervisor" Dispatcher directs the Dispatch Center Operations, and handles the overload (assist in taking excess l incoming calls) . Since the MOU provides for the mandatory number/"staffing" of "qualified Fire Controllers on duty at all times", the "staffing" of Fire Controllers employed at the Central Net Dispatch is a mandatory subject of negotiations between HBFA and the City, on behalf of the CENTRAL NET DISPATCH CENTER. Therefore, any City Proposal that seeks to portray the City of Huntington Beach as a sole [City) Employer, rather than as the Employer Representative on behalf of the JOINT POWERS DISPATCH CENTER, is in conflict with the Joint POWERS AGREEMENT (Exh 11) , and thus is not a legitimate/valid Proposal on behalf of the JOINT POWERS AUTHORITY. Rather, such City Proposal is an attempt to reflect a speculative/non-existent situation, i.e. the City of Huntington Beach as the "sole" 1 Employer, in the event the JOINT POWERS CENTRAL NET DISPATCH CENTER is terminated - a non-existent Employer - Employee "bargaining relationship". Accordingly, if such circumstances were to occur, the JOINT POWERS would be obligated to negotiate/"meet and confer" with HBFA over any decision to terminate the CENTRAL NET DISPATCH CENTER; and the City of Huntington Beach, as a "successor employer, could then enter into a new bargaining relationship with HBFA. However, those circumstances do not exist/constitute speculation/conjecture; and such theoretical questions are outside the scope of this negotiation/"Impasse" process. Accordingly, the City at all times is obligated to negotiate/"meet and confer" as 14 1 2 3 4 5 6 7 8 9 10 11 12 rr n 13 oN 14 00 5Q 15 cc 16 17 18 19 20 21 22 23 24 25 26 27 28 (the Employer on behalf of the JOINT POWERS CENTRAL NET DISPATCH (CENTER for all purposes; and HBFA must represent/"meet and confer" Ion behalf of such DISPATCH CENTER Employees. 4. consistent with the above, the evidence adduced at the Impasse Hearing (See Attach. 2 - Exh. 2 - incorporated herein) , the "meet and confer', obligation under the MMBA and the MOU "'Minimum Manning'" Provision (including the current "conditions of ,employment") , HBFA respectfully submits that the Arbitrator approve Ithe HBFA Proposal regarding "C. MINIMUM STAFFING OF COMMUNICATIONS for the following reasons: (a) The City of Huntington Beach is the designated Employer for the JOINT POWERS CENTRAL NET DISPATCH CENTER, and is responsible for such employees' "wages and terms and conditions of i employment". .(b) HBFA is the designated representative for all "Fire (Controller" positions. (c) Since February, 1990, there have been three (3) "Fire (Controllers" including a "Leadworker" on duty 24 hours a day, seven (7) days a week. This "minimum staffing" has been constantly maintained, even when two "Leadworkers" were on leaves) of absence for personal/maternity reasons. This "minimum staffing" represents an on -going "condition of employment", which has been fully funded by the JOINT POWERS, since the 1989/90 FISCAL YEAR Budget. (d) The increase of Fire Controllers per shift, from two (2) to three (3), including a "Leadworker/Supervisor", occurred during the 1989/90 FISCAL YEAR, after Newport Beach became a participating agency of the Joint Powers Authority. There was an 15 21 3 4 5 6 7 8 9 10 11 12 cc m 13 J c — oU) Cr 14 0n 5Q 15 2 16 17 18 19 20 21 22 23 24 25 26 27 28 increase in job duties (23% call increase); and the EMD, Tactical Dispatching for major incident(s), necessitated that three (3) Fire Controllers be on duty at all time, to implement the JOINT POWERS' Policy/Decision. The utilization of a "Leadworker/Supervisor" allows for intermediate level of supervision, and a more manageable +span of control. (e) In December, 1992, all current members of the JOINT POWERS AUTHORITY, became contractually committed for their continued participation in the Central Net Communications Center' for the 1993-94 fiscal Year (7/1/93 - 6/30/94). (f) HBFA's proposal provides for negotiations/"meeting and conferring" "in the event the current 'work -load' is affected by any policy decision of the Joint Powers including any change in the present member complement." (Art. 4C) Furthermore, HBFA agrees to complete such "meet and confer" process within a sixty (60) day period. (E-3). (g) These current negotiations represent the first opportunity for the City and HBFA to negotiate/"meet and confer" over DISPATCH CENTER staffing, since three (3) Fire Controllers (including "Lead/Supervisor") have been maintained on full-time staffing, twenty four (24) hours a day, seven (7) days a week since (February, 1990). (h) The HBFA Proposal merely seeks to maintain the current mandated "minimum staffing" requirement (three (3) qualified "Fire Controllers", including a "Shift Supervisor/Lead"); (i) The City Proposal should not be approved by the Arbitrator, since it represents a rejection of the City's 16 cc w m lL O to Ln to SQ U o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 legal/appropriate status as the designated Employer for the CENTRAL NET DISPATCH CENTER. Instead, it seeks to implement non- existent/speculative factors that would attempt to portray the City as the sole Employer of Controllers/Dispatchers. This situation is fictitious/is based upon conjecture/and is not a legitimate aspect of this "minimum staffing" negotiation/"meet and confer" process. HBFA submits that since the City Proposal seeks to reduce actual/on-going/authorized "minimum staffing", for the DISPATCH CENTER without any legitimate basis, it should be rejected by the Arbitrator. C. MINIMUM STAFFING OF THE FIRE DEPARTMENT THAT IS CONSISTENT WITH THE PRINCIPLES/SCOPE/AND PARAMETERS OF THE MOU "MINIMUM MANNING" PROVISION AND THE MMBA "MEET AND CONFER" OBLIGATION HBFA submits, that based upon the evidence adduced at the Advisory Arbitration Hearing (and as discussed herein), that to be consistent with the principles/scope/and parameters of the MOU "Minimum Manning" Provisions, particularly to "staff" "apparatus with sufficient personnel to assure the Safety employees and control of risk", and the MMBA "meet and confer" obligation, the Arbitrator should adopt those HBFA Proposals in dispute, and reject the City Proposals for the following reasons: 1. "FIRE FIGHTING HAS BEEN RECOGNIZED AS THE MOST HAZARDOUS OCCUPATION IN NORTH AMERICA IN TERMS OF OCCUPATIONAL DEATH AND INJURY STATISTICS. EACH YEAR OVER 100 LINE OF DUTY DEATHS HAVE BEEN RECORDED AMONG CAREER AND VOLUNTEER FIRE FIGHTERS IN THE UNITED STATES ALONE." "IN ADDITION TO THE DIRECT LINE OF DUTY DEATHS, THERE IS GROWING CONCERN WITH THE NUMBER OF FIRE FIGHTERS WHO SUFFER DISABLING INJURIES OR DEVELOP OCCUPATIONAL DISEASES THAT OFTEN HAVE DEBILITATION OR FATAL CONSEQUENCES.1$ (Attach. 3 - Union Exh. 7, NFPA 1500). 17 1 2 3 4 5 6 7 8, 9 10 11 12 rr m 13 L' -; 14 oo 5Q 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Accordingly, NFPA 1500, strongly recommends "a minimum of fours Fire Fighters on each Engine and Ladder Company, in order to provide adequate personnel to perform standard functions safely and efficiently". In any event, NFPA 1500 finds that the "minimums manning level" for Engine Companies is three (3) and for Truck Companies is four (4). Thus, "...a municipality has the right to determine the overall level of fire protection it wants. However, regardless of the level of fire protection chosen by the citizens, neither they nor their elected representatives have the right to jeopardize the safety of the employees providing the service." (Union Exh . 11) 2. The current/agreed upon "manning/staffingB1 Provision requires that "The City shall cause apparatus to be manned with sufficient manpower to assure the safety of employees and the control of risk. (B) As discussed herein, HBFA submits that this "safety" standard will not be maintained/preserved, if the City/Fire Department proposals are implemented. 3. To "assure the safety of employees and the control of I' riskIN, the current/agreed upon 'manning/staffing" provision provides for the "manning" of "each engine company with no less than one (1) Fire Captain, one (1) Fire Engineer, and one (1) Firefighter or Firefighter Paramedic." The City Proposal (B-2(a) to permit a "two person Engine Company" for up to four (4) hours would violate this essential "manning/minimum staffing" principle, and the on -going practice/precedent of the Fire Department. Therefore, HBFA submits that the Arbitrator should reject any City Proposal that would impose a two (2) person engine company (without rank) since: (1) A "two (2) piece Company"/"two person Engine" was never utilized/is not within the scope of the "Minimum 18 1 Staffing" Proposal; (2) The current "two-piece Company" Provision 2 guarantees the staffing of a "Fire Captain" and a "Fire Engineer" 3 on the second unit; (3) The City/Fire Department is unable to 4 justify its proposal as needed to respond to "those emergencies 5 that would normally be handled by the on -duty suppression force" - 6 a two person Engine Company has never been needed/utilized; (4) The 7 Proposal does not designate the "rank" of the assigned personnel; 8 and (5) The Proposal is in conflict with the principles/scope and 9 parameters of the "Minimum Staffing" Provision - a "Fire Fighter, 10 Fire Engineer, and Fire Captain" to staff a Fire Engine Company "to 11 assure the safety of employees and control of risk". Moreover, 12 since ARTICLE II protects "Existing Conditions of Employment", a m13 reduction in the existing "minimum staffing" requirement without O LO-; 14 HBFA Agreement, is contrary to the express terms of the MOU. 00 SQ 15 4. The current "Minimum Manning" Provision defines U Cc 16 'apparatus', as Fire Department 'Fire Engines", "Fire Trucks", and 17 "Paramedic Units" (H-4) . The City/Fire Department seeks to have an 18 "apparatus" defined "as any vehicle utilized to respond to fires, 19 other emergencies or work assignments..." (A-1). Firefighters have 20 no training on such "vehicles"; and non Fire Department outside 21 "vehicles" are not contemplated within the scope, or Iapplication of 22 the "Minimum Manning/Staffing" requirements. Moreover, this 23 provision would dilute the "meet and confer" requirement applicable 24 to "new equipment/changes in staffing", and is beyond the scope of 25 the current MOU/"Minimum Manning" Provision. 26 Since the purpose of the existing MOU, as interpreted by the 27 11/30/91 "Manning" Arbitration Decision, was to establish "minimum 28 19 1 2 3 4 5 6 7 9 10 11 12 13 14 15 ULM 17 18 19 20 21 22 23 24 25 26 27 manning" for existing/known Fire, Department Apparatus, the City/Fire department Proposal is outside the principles/scope/and parameter of the existing MOU Provision, and should be rejected by the Arbitrator. Likewise, since the City/Fire Department Apparatus definition does "require special skill, knowledge or training to operate", and it is agreed/provided that "minimum staffing" only applies to "in-service" apparatus, the "apparatus" definition should apply to the "operation" of such "apparatus", and not just the driving of vehicles. z- 5-6 The current "manning/staff ing®i requirement provides that "minimum manning... shall be specifically and exclusively from employees of the Huntington Beach Fire Department." (H-2a). The City Proposal would add the requirement of "Public Safety employee" but would not limit the designation to "BBFA Bargaining Unit" employees. (B-10). Since (a) This Provision has always only been applied to HBFA Bargaining Unit employees; (b) The MOU only covers/applies to HBFA bargaining unit members; (c) The MOU "Minimum Manning/Staffing" requirement(s) only apply to Fire Department personnel represented by HBFA - "fire safety" personnel from Fire Captain through the rank of Firefighter, (and Dispatch Center Fire Controllers); (d) The City/Fire Department will not limit the application of the "Minimum Manning/Staffing" requirement(s) to HBFA Bargaining Unit employees, as required by law/MOU/practice(s). It appears that the City/Fire Department will attempt to "staff" apparatus with personnel outside of the MOU HBFA "bargaining unit"; (e) The Fire Department's intended application is beyond the scope of the current MOU "Minimum Manning" u M J L N to Q U m 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 practice/precedent/application, it is submitted that the HBFA Proposal (Application to "Bargaining Unit" Personnel should be approved by the Arbitrator. As HBFA has stated during this Impasse Hearing, in the event Bargaining Unit Personnel are not available to meet Fire Department "emergency" requirements, the Fire Department may utilize "management" personnel. 7. City/Fire Department Proposals that do not assign personnel by classification/rank, and that further establish a "two (2}- person Engine Company", without recognition of rank, are outside the principles/scope/and parameters of the MOU "Minimum Manning's Provision, and are contrary to the Fire Department/Bargaining Unit rank structure. Therefore, such City/Fire Department Proposals should be rejected by the Arbitrator for the following reasons: a. City Proposal (A DEFINITIONS 1 APPARATUS) fails to recognize that the "special skills, knowledge, or training to operate" Fire Department apparatus of a Fire Engineer (Union Exh. 6) are needed. b. City/Fire Department Proposals concerning B. MINIMUM STANDARDS. 1. Establishes a two (2) person Engine Company, without reference to classification/rank. This Proposal is also redundant/unnecessary, as it refers to "Special Purpose Apparatus" (B-s) . 2 (a) Also establishes a two (2) person Engine Company, without reference to classification/rank. 21 Ir w m N 00 sQ U rr 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. Special Purpose Apparatus does not refer to classification/rank of the assigned personnel, and fails to recognize the purpose/responsibility/training of the "Fire Engineer". The code 2 reference is unnecessary, and is outside the scope/application of the "Minimum Manning" Provision. 11. The City/Fire Department "Fire Engineer detachment Proposal", serves no purpose, and is linked to B2a, the City proposed "two -person Engine Company". No provision is needed/appropriate in order to "drive" an apparatus, since the "Manning/Staffing" Provision has always been based upon an "in- service" vehicle 1 apparatus for (response to an emergency); and only a qualified "Fire Engineer", or a certified/qualified replacement may "operate" the apparatus. This City Proposal is therefore outside the scope/application of the "Minimum Manning" Provision C. The MOU, ARTICLE I - REPRESENTATIONAL UNIT/ CLASSIFICATIONS, establishes that HBFA represents the sssuppressionss classifications of "Fire Fighter, Fire Engineer, Fire Captains®, and the "Paramedics classification. d. The current "Minimum Manning" Provision, has always assigned personnel on the basis of the Bargaining Unit Classifications/Ranks, with a "Fire Captain" and a "Fire Engineer" assigned to each Engine Company and to each Truck Company. e. The aforementioned City/Fire Department Proposals ignore the terms/purpose of the Fire Department Job Descriptions. (Union Exh. 6). The "Fire Captain" (Officer rank) is charged with the responsibility "to administer the operations of a fire company; the 22 rr w m J L 0 CO t0 SQ U cc 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I"Fire Engineer11 with the responsibility "to drive, operate, and maintain fire apparatus during emergency and routine situations; land the "Firefighter" (neither a Company Officer nor responsible for operation of the engine) is to perform duties, to protect "life and property from fires, or other emergencies, while assigned to an (engine, [truck] or rescue company". The City/Fire Department JProposal is therefore contrary to the long established assignment of job duties and responsibilities on a "rank" basis. f. The aforementioned City/Fire Department Proposals are in conflict with the "Minimum Manning Arbitration Decision", which affirms the "Minimum Manning" level for an Engine Company of "one (1) Fire Captain, one (1) Fire Engineer, and one (1) Fire Fighter"; and which further found that the HHM-6 (HAZ-MAT Unit) and the JLight/Air Unit were staffed by Engine 48 personnel. g. The aforementioned City/Fire Department Proposals are in (conflict with the City/Fire Department 1992-1993 FISCAL YEAR Budget - the Fire Department "PROGRAM MISSION", and its TABLE OF (ORGANIZATION by Classification/Rank Structure (Union Exh. 9, pages 192-193). The PROGRAM MISSION is defined as: PROGRAM MISSION: Maintain a fire protection and rescue/paramedic system capable of providing: Rescue of all persons outside the room of involvement in a building fire, confinement of small fires to the area of origin, confinement of large fires to the building or origin, and paramedic service to all citizens. First unit to arrive at fires and rescue/paramedic calls within 5 minutes 80% of the time, and within 10 minutes 98% of the time. first ladder to arrive at fires within 10 minutes 98% of the time. Two engine companies, one truck company, and one Chief Officer on scene within 10 minutes of notification. Six engine companies, three ladder companies, three paramedic units and three Chief Officers on scene at large fires within 15 minutes. Eliminate fire hazards by conducting annual fire prevention inspections as 23 1 2 3 4 5 6 7 8' 9 10i 11 i 12 rr n 13 J o- LOU) L� 14 op sQ 15 rr 16 17 18 19 20 21 22 23 24 25 26 27 28 required in all commercial occupancies within the City." (budget, Page 192) 8. The current provision provides that a B.C. Aide (Fire Engineer) may only be utilized as a "temporary fill-in of four (4) hours or less" to satisfy a "minimum manning requirement." I However, as noted by the "Use of Battalion Chief Aides" Decision (5/19/92), there is no requirement that a B.C. Aide be actually assigned for a full or partial shift. This is a gap/loophole in the current manning/staffing "provision, that must be dealt with. Since, (a) The Fire Department does in fact assign Fire Engineers on every shift as B.C. Aide's); (b) The City/Fire Department Budget does provide for the B.C. Aide position(s) on every shift (F. Eng. assignment plus 3 for V.C. Aide's, p. 193); (c) The designation of "one (1) Fire Engineer [to) be assigned as Battalion Chief s Aide," as proposed by HBFA (B-12), can be implemented without additional cost to the City; (d) Implementation of HBFA's proposal will conform with the long-standing practice of the Fire Department; and (e) The Fire Department is permitted to utilize the B.C. Aide to "satisfy minimum manning requirements" as a "temporary fill-in" for up to "four (4) hours", HBFA submits that it is most appropriate that the "B.C. Aide" position be a designed/required position. Therefore, it is requested that the HBFA Proposal - B-12, that "one (1) Fire Engineer shall be assigned as Battalion Chief's Aide; be approved by the Arbitrator, as a "Minimum Staffing" Provision, since such MOU inclusion, will merely confirm a long-standing practice/"condition of employment. 9. As already noted, these current negotiations arose out of the "Manning Arbitration Decision"; and the parties have defined 24 1 2 3 4 5 6 7 8 9 10 11 12 m 13 o LO -; 14 �p sQ 15 z rr 16 17 18 19 20 21 22 23 24 25 26 27 the 10Light Air Unit„ as a "Special Purpose Apparatus". Thus, HBFA believes that implementation of the City/Fire Department "special apparatus" Proposal (B-8) will seriously jeopardize the safety of affected personnel, because it omits/fails to define the I rank/responsibility of personnel that will operate a "special Purpose Apparatus11. (B-8) It is HBFA's position that (a) Only a "Fire Engineer" (or a Firefighter assigned/qualified as such), because of training and rank, should be trained/assigned with.the responsibility to operate/maintain a Fire Department apparatus/vehicle; and (b) The Fire Department's Proposal seeks to diminish the basic reason for the "Fire Engineer" Classification, and is in conflict with the Fire Department classification/rank structure (Exh. 6, MOU, Art. 1, Art. 4) 2 (See discussion below). 10. The City/Fire Department Proposal seeks to define "A FIRE COMPANY [as] a firefighting force commanded by a single Company Commander". HBFA defines the responsible person/rank as the "FIRE CAPTAIN" (A-2). HBFA submits, (a) That the City 's proposal is inconsistent with the Fire Department/HBFA Bargaining Unit "rank structure"; (b) That there is no defined position of "Company Commander"; (c) That pursuant to the Fire Department Job Description(s), (Exh. 6) and the current "Minimum Manning" Provision (A-1 - A-b), it is the "Fire Captain" who has the command responsibility for an engine/truck company; and (d) That it is inappropriate to designate a non -existing position/rank as the 2 The Primary Function "of a "Fire Engineer" is to drive, operate and maintain fire apparatus during emergency and routine duties". 25 11 2 3 4 5 6 7 8 9 10 11 12 I m 13 o� 14 op 5Q 15 2 rr 16 17 18 19 20 21 22 23 24 25 26 27 28 (responsible person for the "unit" responsible for the basic emergency function of the Fire Department. Accordingly, HBFA requests that the Arbitrator find that the designated Classification/Rank of "FIRE CAPTAIN" and not the non-existent rank of "Fire Commander' be denoted as the responsible person to "command" a "FIRE COMPANY"; and that the City/Fire Department. proposal be rejected as beyond the scope of the current "Minimum Manning" Provision. 11. D. FILING OF VACANCIES The Fire Department/City and HBFA have agreed that: B'When a vacancy exists on any apparatus, the vacancy shall be filled rank for rank based upon the provisions of the Fire Department Policy D-3 (Call Back Staffing System)" (Attach. 4 - Union Exh. 8). The D-3 Policy (6/17/92) constitutes an Agreement between the parties, which purpose is Ito identify and publish' a uniform and equitable method for call off duty personnel to duty". The D-3 Policy provides that "All personnel are subject to mandatory recall or on duty holdover and are responsible to make themselves available." Since the D-3 Policy is to be the exclusive agreed -upon "call back" Policy, HBFA during this Impasse Procedure, any withdrew consideration for addition to this Provision, as being in conflict with the agreed upon D-3 Policy. For the same reason, and to maintain the integrity of the D-3 Policy, HBFA therefore requests that the Arbitrator not approve the City/Fire Department Proposal that exceeds the utilization of the D-3 Policy. 26 1 2 3 4 5 6 7 8 9 10 11 12 r m 13 L� b (n -; 14 00 <� 15 U rr 16 17 18 19 20 21 22 23 24 25 26 27 28 1 12. HBFA seeks to implement a contractual negotiations/I meet land confer' obligation rather than a "meet and discuss" obligation for „new equipment/change in staffinglo, that "will affect the safety or working conditions of affected employees". (E-1) HBFA also seeks to apply such "meet and confer" obligation in the event of "any proposed department action to eliminate any paramedic unit s)/van(s)." (E-2). HBFA requests that the Arbitrator approve this proposed "meet and confer" obligation, since (a) Such Proposal is consistent with the MMBA "Manning" "meet and confer" obligation (as discussed above, pages 5-7, Vallejo,, .supra, and its progeny, and the "Manning Arbitration Decision"; (b) Such Proposal is also consistent with the rationale of the current "Minimum Manning" Provision, and even the proposed Provision, since the parties have negotiated "Manning/Staffing" of existing/contemplated Fire Department apparatus; (c) The MMBA "meet and confer" obligation has been construed in a broad manner in order to give real meaning to this mutual endeavor to reach Agreement upon "conditions of employment"; (d) HBFA only seeks negotiations over contemplated "Staffing" decisions that affect employee "safety or working condition" (required by the MMBA obligation); (c) Discussions, without a "meet and confer" obligation, do not contemplate meaningful participation by HBFA; (d) In order to assure the City/Fire Department of timely negotiations, HBFA is committed to completing the negotiations/ "meet and confer" process within sixty (60) days; and (e) The contractual "meet and confer" obligation will eliminate any further litigation over interpretation of the MMBA "meet and confer" obligation. 27 M UJ m J c — 0 U1 00 SQ U 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III CONCLUSION It is requested, that based upon the evidence adduced at the Impasse Hearing and the above, that the Arbitrator should approve the HBFA PROPOSAL of those Provisions of "ARTICLE 4 MINIMUM STAFFING AND FILLING OF VACANCIES" (Exh. 13-15) that are in dispute and reject the City/Fire Department PROPOSAL in its entirety. HBFA submits that the HBFA PROPOSAL, and not that of the City/Fire Department is consistent with the MMBA "Manning/Staffing" "meet and confer" obligation; the "Manning Arbitration Decision", and the principles/scope/and parameters of the MOU "Minimum Manning" Provision, "to assure the safety of employees and control of risk". WHEREFORE, HBFA requests that the Arbitrator issue an Advisory Arbitration Award to the City/Fire Department and HBFA, that will reflect/incorporate/approve the entire HBFA "MINIMUM MANNING AND FILING OF VACANCIES" Proposal. DATED: April 12, 1993 Respectfully submitted, RICAIRD J ILBER, Attorney for HBFA 28 2 3 4 5 6 7 8 9 10 11 12 rr LU 13 14 �o SQ 15 U 16 17 18 19 20 21 22 23 24 25 26 27 28 In 12 Cal.3d 608 _Fire Ficthters Union, Local 1186 v. City of Vallejo et al, Oct. 2, 1974, the court stated: The Supreme Court, Tobriner, J., held that bargaining requirements of National Labor Relations Act and cases interpreting them could properly be referred to in interpreting scope of bargaining under city charter provision granting city employees right to bargain on "wages, hours and working conditions: but withholding that right as to matters involving the "merits, necessity or organization of any governmental service," that union's schedule of hours proposal was negotiable and arbitrable under such charter provision, that union's vacancies and promotions proposal was arbitrable,... MMBA "meet and confer" The scope of bargaining provision in, the Vallejo City Charter in large measure parallels that set out in the Meyers-Milias-Brawn Act (Bow.Code, §§ 3500-3510). Government Code section 3504 reads: "The scope of representation shall include all matters relating to employment conditions and employer -employee relations, including, but not limited to, wages, hours and other terms and conditions of employment, except, however, that the scope of representation shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order." Therefore, interpretation of the scope of bargaining language in the Vallejo charter necessarily bears upon the meaning of the same language in the vallejo charter necessarily bears upon the meaning of the same language in the Meyers-Milias-Brown Act. With this caveat in mind, we approach the specific problem of reconciling the two vague, seemingly overlapping phrases of the statute: "wages, hours and working conditions," which, broadly read could encompass practically any conceivable bargaining proposal; and "merits, necessity or organization of any service" which, expansively interpreted, could swallow the whole provision for collective negotiation and relegate determination of all labor issues to the city's discretion. In attempting to reconcile these provisions, we note that the phrase "wages, hours, and other terms and conditions of employment" in the MMBA was taken directly from the National Labor Relations Act (hereinafter NLRA). (See Grodin, Public Employee Bargaining in California: the Meyers-Milias-Brown Act in the Courts (1972) 23 Hastings L.J. 719, 749.)... 2 3 4 5 6 7 8 9 10 11 12 m 13 CO 14 op 5d 15 z a 16 17 18 19 20 21 22 23 24 25 26 27 28 The origin and meaning of the second phrase --excepting "merits, necessity or organization" from the scope of bargaining --cannot claim so rich a background.. Apparently the Legislature included the limiting language not to restrict bargaining on matters directly affecting employees' legitimate interests in wages, hours and working conditions but rather to forestall any expansion of the language of "wages, hours and working conditions" to include more general managerial policy decisions. Although the NLRA does not contain specific wording comparable to the "merits, necessity or organization" terminology in the city charter and the state act, the underlying fear that generated this language --that is, that wages, hours and working conditions could be expanded beyond reasonable boundaries to deprive an employer of his legitimate management prerogatives --lies imbedded in the federal precedents under the NLRA. As a review of federal case law in this field demonstrates, the trepidation that the union would extend its province into matters that should properly remain in the hands of employers has been incorporated into the interpretation of the scope of "wages, hours and terms and conditions of employment." Thus, because the federal decisions effectively reflect the same interests as those that prompted the inclusion of the "merits, necessity or organization" bargaining limitation in the charter provision and state act, the federal precedents provide reliable if analogous authority on the issue. ...Although we recognize that there are certain basic differences between employment in the public and private sectors, the adoption of legislation providing for public employment negotiation on wages, hours and working conditions just as in the private sector demonstrates that the Legislature found public sector and private sector employment relations sufficiently similar to warrant similar bargaining provisions. We therefore conclude that the bargaining requirement of the National Labor Relations act and cases interpreting them may properly be referred to for such enlightenment as they may render in our interpretation of the scope of bargaining under the Vallejo charter. 3. Constant Manning Procedure The union asserts, however, that its current manpower proposal is not directed at general fire prevention policy, but instead involves a matter of workload and safety for employees, and accordingly falls within the scope of negotiation and arbitration. Because the tasks involved in fighting a fire cannot be reduced, the union argues that the number of persons manning the fire truck m w m °m �p a U rr 8 9 10 11 I 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 i 27 28 or comprising the engine company fixes and determines the amount of work each fire fighter must perform. Moreover, because of the hazardous nature of the job, the union also claims that the number of persons available to fight the fire directly affects the safety of each fire fighter. Insofar as the manning proposal at issue does in fact relate to the questions of employee workload and safety, decision under the National Labor Relations Act fully support the union's contention that the proposal is arbitrable. ... G:�'� FIRE DISPATCH CENTER SIGNIFICANT HISTORY 1985 TO PRESENT 1985-1987 Fire Controller Colleen Keith promoted to Supervising Fire Controller. Net 6 Dispatch Center handling fire and paramedic dispatches for Huntington Beach, Westminster, and Fountain Valley. Net 6 operating with three dispatch consoles, 4 channel countywide low band radio, 1974 Motorola Computer Aided Dispatch system, and a sewer lift alarm station. The sewer lift alarm system was monitored by Net 6 personnel and managed by Huntington Beach Public Works. Fiscal year 1987/88 Aug 1987 - Steve Rothert appointed to leadworker assigned to training and scheduling among other duties. Jan 1988 - 4th city, Newport Beach added to Central Net increasing calls by approximately 23%.. Spring 1988 - transistion to 800mhz multi-trunked radio May 1988 - 2nd leadworker appointed. Leadworker hours established as 0900-2100hrs. Three people on duty established as minimum manning between the hours of I300- 2000. Jan 1989 Steve Rothert temporarily assigned to 40 hr week, working Tuesday through Friday 0730- 1730, taking over many supervisory duties while Supervising Fire Controller is involved with major CAD project.. Mar 1989 Net 6 dispatch center became area coordinator (State of California Master Mutual Aid Plan) for Net 6 cities including Costa Mesa and Santa Ana. Area coordinator assumes responsibility for maintaining set resource Ievels within the Net which includes ordering resources from other jurisdictons. May 1989 Chief Picard developing FireMed. Ability of dispatchers to do EMD is important component of system. Operations Chiefs request ability to have tactical dispatchers when needed. Minimum'peak load' staffing between 1300-2000 is still being maintained. Review of dispatch operations shows that for effective EMD and tactical dispatching, three people on duty is necessary. F1�- FY89/90 BUDGET REQUEST FOR REVISIONS TO TABLE OF ORGANIZATION STATES: "Addition of two Fire Controllers Leadworkers will allow full time staffing of three persons on duty 24 hours a day. Increase in job duties; i.e., EMD and tactical dispatching for major incidents necessitates having three fire controllers on duty at all times. Also allows for intermediate level of supervision and more manageable span of control. July 1989 New innovative CAD system installed and running. Aug 1989 Donna Pelletier and Dennis Kidd are appointed to the position of Fire Controller Leadworker. Recruiting and testing takes place to fill the two Fire Controller positions. Sept 1989 Each shift is assigned a Fire controller Leadworker. Overlap position (0900-2100) filled by Fire Controller, with minimum staffing of three people 1300-2000 maintained. Dispatch procedure is changed from one person taking and dispatching calls to a Calltaker/Dispatcher format where one person takes the call and a second person dispatches. Emphasis is for dispatcher to monitor radio traffic only - all phone calls (particularly 911 calls) are handled by the other two people on shift. Duties, responsibilities and authority of Leadworkers are defined. Duties: Does quarterly performance evaluations on employees. Ensures Maintenance and repairs to FDC equipment. Payroll Schedules vacations, monitors overtimes, etc. Responsible for: Actions of Fire Controllers on their shift Smooth operations of FDC on that shift Employee training Handling problems, referring big problems to Supv. Personnel evaluations Authority: Direct actions of Fire Controllers Handle immediate problems that arise in FDC Represent Supervisor in Supervisor's absence Dec 1989 Fire Controllers Oshita and Ewing hired and begin training Feb 1990 New Fire Controllers released to their own shifts. Three people on duty (two Fire Controllers and one Fire Controller Leadworker) becomes standard staffing. Oct 1990 Due to impending maternity leave of two Fire Controller Leadworkers (simultaneously), it is decided to create an "Acting" Leadworker position by training a Fire Controller to that level. Two Fire Controllers respond to the "recruitment" memo, and are given a written test.. Test answers are evaluated by all Leadworkers and Supervising Fire Controller. Brenda Crites is appointed "Acting" leadworker, and earns bonus pay when she works in that capacity. Mar 1991 Donna Pelletier does not come back from maternity leave, resigns from her full time position as Fire Controller Leadworker, and goes to part time. April 1991 Recruitment announcement for Fire Controller Leadworker. Oral board recommends the appointment of Jane Cameron. Brenda Crites continues to work in the capacity of Acting Leadworker as needed. r� i �� y MINIMUM MANNING ARBITRATION OPENING STATEMENT: "FIRE FIGHTING HAS BEEN RECOGNIZED AS THE MOST HAZARDOUS OCCUPATION IN NORTH AMERICA IN TERMS OF OCCUPATIONAL DEATH AND INJURY STATISTICS. EACH YEAR OVER 100 LINE OF DUTY DEATHS HAVE BEEN RECORDED AMONG CAREER AND VOLUNTEER FIRE FIGHTERS IN THE UNITED STATES ALONE." " IN ADDITION TO THE DIRECT LINE OF DUTY DEATHS , THERE IS GROWING CONCERN WITH THE NUMBER OF FIRE FIGHTERS WHO SUFFER DISABLING INJURIES OR DEVELOP OCCUPATIONAL DISEASES THAT OFTEN HAVE DEBILITATING OR FATAL CONSEQUENCES." (1) HISTORY: HUNTINGTON BEACH FIRE DEPARTMENT IN THE MID 1960S WENT TO THREE (3) MAN ENGINE COMPANIES AND THEN INCREASED TO FOUR (4) MAN UNTIL 1971 WHEN A PARAMEDIC UNIT WAS PLACED IN SERVICE. THIS INCREASED IN MANNING WAS DUE TO THE BELIEF THAT THE CITY WAS GROWING IN POPULATION, FIRE INCIDENTS AND BUILDING CONSTRUCTION. A THREE MAN COMPANY WAS SAFER, MORE EFFICIENT AND PROVIDED A HIGHER LEVEL OF SERVICE THEN THE TWO (2) MAN COMPANY IT REPLACED. THAT THINKING HAS PREVAILED FOR THE PAST THIRTY-TWO (32) YEARS. THE FACT IS THAT MEDIUM TO LARGE URBAN FIRE DEPARTMENTS HAVE MINIMUM MANNING REQUIREMENTS OF FOUR (4) OR GREATER FOR ENGINE COMPANIES AND I'M UNAWARE OF ANY O.0 CITIES THAT RUN WITH LESS THEN THREE (3). DISCUSSION• NFPA 1500 STANDARD ON FIRE DEPARTMENT OCCUPATIONAL SAFETY & HEALTH PROGRAM 1992 THIS WAS WRITTEN FOR THE PURPOSE OF MAKING THE FIRE FIGHTER PROFESSION LESS DANGEROUS BY REDUCING THE RISK OF ACCIDENTS, INJURIES AND FATALITIES IN THE COURSE OF PERFORMING EMERGENCY OPERATIONS. THIS DEPARTMENT REFERS TO THIS DOCUMENT IN ESTABLISHING TRAINING AND EDUCATION GUIDELINES, PROTECTIVE_ CLOTHING AND EQUIPMENT GUIDELINES, EMERGENCY OPERATION POLICY, AND MEDICAL AND PHYSICAL CRITERIA, BUT IGNORES THE STRONG RECOMMENDATION FOR A MINIMUM OF FOUR FIRE FIGHTERS ON EACH ENGINE AND LADDER COMPANY IN ORDER TO PROVIDE ADEQUATE PERSONNEL TO PERFORM STANDARD FUNCTIONS SAFELY ANO EFFICLENTI,Y." (2) NFPA CONTAINES ORGANIZATION GUIDELINES FOR FIRE DEPARTMENTS. IT SUGGEST WRITTEN CRITERIA FOR EACH TYPE OF EMERGENCY INCIDENT. PART OF THAT BEING " THE MINIMUM NUMBER OF MEMBERS REQUIRED TO SAFELY PERFORM EACH IDENTIFIED FIRE FIGHTING FUNCTION OR EVOLUTION THIS DEPARTMENT HAS HAD FOR TWENTY (20) YEARS TRAINING EVOLUTIONS BASED ON THE MINIMUM MANNING LEVELS OF THREE (3) FOR ENGINE COMPANIES, FOUR (4) O TRUCK COMPANIES. THESE ARE THE MINIMUM SAFE LEVELS FOR THIS DEPARTMENT AS STIPULATED BY THEIR TRAINING CRITERIA. INCIDENT COMMANDER MINIMUM MANNING ARBITRATION THE FIRE PROTECTION HANDBOOK AS REFERENCE BEFORE OUTLINES THE INCIDENT COMMANDERS RESPONSIBILITIES "AS MANAGING THE AVAILABLE PERSONNEL AND EQUIPMENT TO ACHIEVE MAXIMUM RESULTS, DEPENDING ON THE SITUATION. THE SAME PRINCIPAL APPLIES TO OTHER TYPE OF INCIDENTS THAT THE DEPARTMENT MAY BE EXPECTED TO HANDLE, INCLUDING MEDICAL, RESCUE AND HAZARDOUS MATERIAL SITUATIONS." THE QUESTION THAT BECOMES VERY APPARENT IS; HOW TO MANAGER THE INCIDENT SCENE INCLUDING SAFETY FOR YOUR PERSONNEL WHEN YOU ARE ONE OF TWO PEOPLE CHARGED WITH THE EFFECTIVE CONTROL OF THE SITUATION ? CLOSING THE CHIEF WOULD LIKE YOU TO BELIEVE THAT THEIR POSITION IS A BETTER LEVEL OF SERVICE THAN THE HBFA POSITION. BASED ON THE NFPA 1500 STANDARD, A STANDARD THAT THIS DEPARTMENT REFERS IN OTHER AREAS, AS MENTIONED, A TWO MAN ENGINE IS TWO MEN SHORT OF THEIR MINIMUM MANNING LEVEL. THE CHIEF WOULD HAVE YOU BELIEVE THAT BY RESPONDING A SECOND UNIT CODE 2 YOU HAVE INCREASED THE LEVEL OF SERVICE. IF YOU UNDERSTAND WHAT A CODE RESPONSE IS YOU UNDERSTAND THAT THE SECOND UNIT DOESN'T ARRIVE FOR AN ADDITIONAL 3 TO 5 MINUTES AFTER THE FIRST UNIT, AND THAT'S ONLY IF THE SECOND UNIT IS COMING FROM THE NEXT CLOSEST STATION. THIS IS NOT A INCREASE LEVEL OF SERVICE OR IS IT AN EFFECTIVE WAY TO CONTROL A SITUATION. SEND THE CORRECT NUMBER OF PEOPLE, MIN 3, THE FIRST TIME. THE CHIEF STATES THAT HBFA HAS NO PROPOSAL ON THIS ISSUE. THE PROPOSAL OF HBFA IS THAT MINIMUM MANNING IS JUST THAT MINIMUM MANNING AS STATED IN BOTH THE CITY'S AND HBFA'S DOCUMENTS: AN ENGINE COMPANY IS MANNED BY NO LESS THAN ONE (1) FIRE CAPTAIN, ONE (1) FIRE ENGINEER, AND (1) FIRE FIGHTER. AS IN THE PAST THE HBFA PERSONNEL HAVE ALWAYS RENDERED AID OR ASSISTANCE EVEN WHEN OUT OF SERVICE BECAUSE OF BELOW MINIMUM MANNING LEVELS AND THEY WILL CONTINUE TO DO SO, THE CHIEFS FEARS ARE UNFOUNDED AND HAVE NO BASIS IN FACT. WHAT WE BELIEVE, AS DO ALL FIRE DEPARTMENT IN LOS ANGELES AND ORANGE COUNTIES,, IS THAT TWO (2) MAN ENGINE COMPANIES FOR ANY PERIOD OF TIME IS UNSAFE FOR THE FIREFIGHTERS AND A REDUCED LEVEL OF SERVICE TO THE COMMUNITY. 1.REF: FIRE PROTECTION HANDBOOK,I7TH EDITION, SEC.9 CH 1.PG 9-4 TO 9-8 2.REF: FIRE PROTECTION HANDBOOK,I7TH EDITION, SEC 9 CH 1.PG 9-10. -4 � i IUNIN IGTON BEACH FIRE DEPART��iENT 'j SECTION D "C�' ORGANIZATION MANUAL PERSONNEL _UNE 17, 1992 POLICY D-3 CALLBACK STAFFING SYSTEM I. PURPOSE A. To identify and publish a uniform and equitable method for calling off duty personnel to Luty. II. POLICY A. Off duty personnel shall be recalled to regular duty whenever deemed necessary by the Fire Chief or authorized deputy. B. On duty members shall be retained on duty, whenever there is insufficient personnel to maintain minimum staffing. C. Personnel shall be called back during non -emergency periods by using the standard procedure outlined in this policy. D. Fire control minimum personnel requirements shall be maintained by utilizing the procedure established in this policy. E. All three (3) shifts shall be administered in the same manner and treated equally. III. OBJECTIVE A. To establish, and administer, a recall staffing policy. B. To utilize the Department computer system to aid in administering the policy and to insure equitability of opportunity. C. To provide for a proactive participation in the recall process by utilizing a "sign up" system. D. To establish a standard method for recalling personnel during non -emergency conditions. V. RESPONSIBILITY AND AUTHORITY A. The primary responsibility and authority for administering this policy shall rest with the Pae1of6 v S:D-3 (replaces April 18, 1990 policy) g a l s HUNTINGTON BEACH FIRE DEPARTMENT ORGANIZATION MANUAL JUNE 17, 1992 Operations Division Chief. SECTION D PERSONNEL POLICY D-3 B. The day-to-day administration of the policy shall rest with the on duty Shift Battalion Chief. 1. The Shift Battalion Chief may assign an on duty member to carry out this policy. 2. The on duty Shift Battalion Chief may deviate from this policy, when necessary, due to immediate needs and personnel shortages. C. Personnel assigned to carry out this policy shall be responsible for its accuracy and integrity. D. Personnel desiring to participate in the voluntary portions of this policy shall notify the administrators in writing, and include their off duty telephone number. E. All personnel are subject to mandatory recall or on duty holdover and are responsible to make themselves available. V. PROCEDURE A. The Department computer Records Management System will be utilized to enter and track any member wishing to participate in the voluntary portion of the Callback Staffing program. The sign up portion will be utilized to add or delete any dates that a member wants to make himself/herself available for callback. B. The second part, or callback roster shall be a listing, in descending order of rank, of all members who have signed up as available to work on a particular day. The computer will rank all members,. in rank, as to overtime hours worked by searching payroll records for three hundred sixty-five (365) days back and thirty (30) days forward. There shall be five (5) separate categories of rank included in the listing: Battalion Chief; Captain; Engineer; Paramedic; and Firefighter. C. All scheduled and unscheduled vacancies shall be filled by the callback system in accordance with this policy. D. Members wishing to make themselves available for callback will place their name on a computer generated calendar for all dates that they are available. E. If a member's name is in the computer for a given day, it will be that member's responsibility to work should he/she be called. B:D-3 (replaces April 18, 1990 policy) Page 2 of 6 V n A, 6 HUNTINGTON BEACH FIRE DEPARTMENT ORGANIZATION MANUAL JUNE 17, 1992 SECTION D PERSONNEL POLICY D-3 F. If a member places his/her name in the computer for a particular day and later changes his/her mind, for any reason, he/she may remove it at any time prior to being called back to duty. G. By necessity, the computer sign up program is not passworded, thereby facilitating the easy sign up or deletion of a member's name. This feature allows for members to change their minds or authorize another member to make the change for them. However, any unauthorized alteration to the computer availability listings will result in disciplinary actions". H. If a member is called and cannot work, twenty-four (24) hours will be added to their overtime record until January 1, 1993. After said date, the penalty will be forty-eight (48) hours. The duty Shift Battalion Chief will have the authority to excuse this penalty in cases of illness or injury. I. If a member accepts a work and later finds it necessary to cancel said work, he/she may do so with the permission of the Shift Battalion Chief, . and without penalty, if there is another member, of equal rank, on the availability roster and the change takes place at least twenty-four (24) hours prior to said scheduled work. J. Calls for filling vacancies may be made at any time. Because members cannot be expected to stand by awaiting a phone call, the overtime may be accepted by a responsible party; i.e., the member's spouse, responsible party, or answer machine. The members must then confirm acceptance by telephone to the Shift Battalion Chief s office no later than one and one-half (1-1/2) hours before the time of commitment. If the confirmation does not occur, the Shift Battalion Chief or Aide, will attempt to contact the member once again. If no contact, the next member eligible will be called, the original member will be charged with the appropriate hours (per Section V.H.) and the work canceled. K. Members participating in the voluntary callback system shall make themselves available for call between 0630-0800 for normal callback. These hours apply to off duty members. On duty members may be called at any time. L. Scheduable vacancies shall be filled as soon as practical, but normally they shall be scheduled no more than thirty (30) days in advance. 1. Exception: When special circumstances require planning more than thirty (30) days in advance, or if no member has logged onto the availability roster, individuals may confirm their relief by having other members place themselves on the availability roster for the time involved. This provision would guarantee the individual, and the Department, that someone is on the list and agrees to work the time involved. The routine callback staffing procedure would then be B:D-3 (replaces April 18, 1990 policy) Page 3 of 6 i/ �1. tl `i s HUNTINGTON BEACH FIRE DEPARTMENT ORGANIZATION MANUAL 1UNIE 17, 1992 SECTION D PERSONNEL POLICY D-3 used to determine which member would be selected to work when the rosters are filled within the normal thirty (30) day time frame. However, the member who placed his/her name on the availability roster cannot be utilized to fill any routine vacancy until the vacancy for which he/she "signed up" has been filled. This exception must be coordinated through your Shift Battalion Chief. M. Members shall be called back to duty to fill vacancies on a voluntary basis from the computer calendar starting with the member with the least number of overtime hours, working to the member with the most number of overtime hours. 1. If the overtime history is equal, the most senior shall be called first. 2. If more than one vacancy exists in a rank, the first member called shall be given their choice of station assignments. Once a decision has been made, the next assignment shall be offered to the next eligible member. 3. Whenever a member is assigned an overtime of more than twelve (12) hours; it will be recorded on the overtime roster by the number of hours worked. N. When a personnel shortage cannot be filled on a voluntary basis, personnel shall be held over to fill the vacancy. This vacancy or scheduled vacancy shall be filled as soon as reasonably possible. 1. In the event of ordered recall to duty or holdover, a rotating holdover file shall be used. If the number of holdovers are equal, the least senior shall be called first. 2. If the vacancy being filled is expected to be for a period less than two (2) hours, the member filling the position shall be held over. No record shall be kept of holdovers of less than two (2) hours. The holdover list shall be used for periods of more than two (2) hours. 3. The member being held over shall be from the shift going off duty on the day of the vacancy. 4. Members who are held over may seek a voluntary replacement from any member of an equal rank or members on a current promotional list for that rank. O. Additions, removal, transfer, and reinstatement to Callback Roster. 1. Changes in Rank. a. Any member who is appointed to a higher rank shall be brought onto the B:D-3 (replaces April 18, 1990 policy) Page 4 of 6 w 1-IUNTINGTON BEACH FIRE DEPARTMENT ORGANIZATION MANUAL 1UNE 17, I992 SECTION D PERSONNEL POLICY D-3 Callback Roster maintaining his/her hours worked. No member may be assigned to the overtime list of more than one (1) rank. b. Any member who loses a temporary promotion due to Department needs or selectively returns to a lower rank shall be brought back on the Callback Roster maintaining his/her hours worked. C. Any member who is demoted, shall be brought onto the Callback Roster that they are qualified for twenty-four (24) hours ahead of the member with the most hours; i.e., bottom of the list. 2. When a member is not eligible for duty for disciplinary reasons, they shall not be eligible for overtime. Upon' returning to work, they shall be reinstated on' the Callback Roster at a position twenty-four (24) hours ahead of the member with the most hours; i.e., bottom of the list. 3. Any member temporarily or permanently promoted, will be able to work any overtime previously scheduled. 4.. Any member moved back in rank, from a temporary position, may work any previously scheduled overtime, if the member is qualified to work the position; i.e., if the overtime opportunity still exists. 5. New members shall be placed on the appropriate Callback Roster, even with the member with the most hours. P. When recording a callback, the date scheduled to work shall be entered into the computer. 1. When searching overtime records, only periods of more than twelve (12) hours will be counted. 2. A member whose name is in the computer for a given day may decline opportunities of twelve (12) hours or less with no penalty. 3. The Shift Battalion Chief may call any member for overtime for periods of twelve (12) hours or less or may deviate from the list due to immediate personnel requirements (recommend calling day off personnel first). . Q. On duty members who are designated as the Shift Battalion Chief Aide and the fourth member on the truck, may be utilized for a period of four (4) hours or less to fill vacancies in lieu of the overtime callback system. B:D-3 (replaces April 18, 1990 policy) Page 5 of ow �ti .11 ft :IUNTINGTON BEACH FIRE DEPARTMENT SECTION D ORGANIZATION MANUAL PERSONNEL JUNE 17, 1992 POLICY D-3 R. Members shall not work more than ninety-six (96) consecutive hours without taking twenty-four (24) hours off unless approved by the Shift Battalion Chief. S. Members should use courtesy and discretion when requesting vacation days during holiday periods. T. Vacation requests in excess of the guaranteed vacation positions may be honored by the Department and vacancies filled in accordance with provisions of this policy. 1. No member shall be authorized a vacation day in excess of the guaranteed vacation positions per rank if a volunteer callback person is not available. a. Two (2) members in each rank will be guaranteed a shift off on vacation each work day except Thanksgiving, Christmas Eve, and Christmas Day. Members wanting vacation on the excepted days shall be authorized the time off only if there is available relief signed up on the computer. U. The callback system may be used for emergency callback. WRC/MPD/cgs APPROVED: /� DATE: -7— ZZ 9'z-- MICHAEL P. DOLDER, FIRE CHIEF 13:D-3 (replaces April 18, 1990 policy) Page 6 of 6 PHILIP TAMOUSH ARBITRATOR - FACT FINDER POST OFFICE BOX 1128 TORRANCE, CALIFORNIA 90505-0728 (Principal Office) Phone or Fox (310) 378-9245 May 12, 1993 Richard Silber, Esq. 2134 Main St., Suite 130 Huntington Beach CA 92648 William H. Osness Personnel Director City of Huntington Beach 2000 Main St. Huntington Beach CA 92648 i ' TTACHMENT I Son Francisco/Bay Area Office P.O. Box 54 Alamo, California 94507 RE: ARBITRATION: Transmittal of Award and Billing for Services: City of Huntington Beach/Huntington Beach Firefighters Association (HBFA): Minimum Staffing Impasse Gentlemen: Transmitted herewith is my Opinion and Award, along with my billing for services in the above matter, payable by the parties within 30 days. Thank you very much. It was a real pleasure working with you. I will only receive requests for clarification, correction of typographical errors, etc., if made mutually and in writing. Sincerely 4 Philip Tamoush Enclosures (Award and Invoice) IMPASSE ADVISORY ARBITRATION DECISION AND AWARD In the Matter of the Impasse Advisory between the CITY OF HUNTINGTON BEACH and the HUNTINGTON BEACH FIREFIGHTERS ASSOCIATION Arbitrator's File No. 93 01231 Impartial Arbitrator Philip Tamoush P. 0. Box 1128 Torrance, California 90505 INTEREST ARBITRATION: Minimum Manning and Filling of Vacancies (New) Article 4) P. 0. Box 54 Alamo, California 94507 Hearing Held Record Closed Award Issued February 9, 23, 1993 April 13, 1993 May 12, 1993 March 17, 1993 Huntington Beach, California Appearances For the City: Nick Nichols, Consultant 2000 Main Street Huntington Beach, California 92668 For the Association: Richard Silber, Esq. 2134 Main Street, Suite 130 Huntington Beach, California 92648 ISSUE As indicated below this Impasse Arbitration involves the terms and conditions of employment subsequent to negotiations by the Parties over the subject of Minimum Manning and Filling of Vacancies (Language of current Memorandum of Understanding). Subsequent to the issuance of a Grievance Arbitration Award (Arbitrator Joseph F. Gentile, November 30, 1991, regarding "Manning of HE-48, HHM-6, and Light/Air Unit), the Parties entered into an extensive series of negotiations over the subject of minimum/staffing, a new Article 4, coincident with negotiations for a comprehensive successor collective bargaining agreement. Thus the focus of this Impasse Advisory Arbitration procedure is a complete new Article 4 which replaces the former Article 6H. Since the Parties did not adopt any special form of interest arbitration, e.g., final best package offer, or final last offer by issue, etc., this process permits the adoption of the City's position, the Union's position, or some different compromise position on each item in dispute. Of the complete new Article 4 there are approximately 13 substantive subjects in dispute. The objective of the undersigned in this current proceeding is to recommend fully and finally a complete resolution of each of the approximately 13 issues, which are to be incorporated into those subjects and sections of Article 4 over which there has been agreement reached. Thus, adoption by the parties the decisions and Award contained herein will provide them with a complete and comprehensive new Article 4, titled "Minimum Staffing and Filling 1 of Vacancies". Where no mention is made of a section, subsection' or subject e.g. the change in relevant language from the term "Manning" to the term "Staffing", that section, subsection or. subject is deemed to have been agreed upon by the Parties since it (they) was not presented for resolution by the Impartial Arbitrator. Thus, resolution of this impasse should complete all negotiations over Article 4 pursuant to both the general negotiations obligation under which the Parties operate through their employer -employee relations resolution and pursuant to Arbitrator Gentile's order. Of course, the Parties may agree to reopen negotiations for successor periods and agreements as per their own past practice. RELEVANT WRITTEN LANGUAGE I. EMPLOYER -EMPLOYEE RELATIONS RESOLUTION SECTION 9 - IMPASSE 9-1 IMPASSE MEETING. REQUEST FOR. If, after a reasonable period of time, the City Administrator and the representatives of the recognized employee organization have exhausted all possible means of reaching agreement, either party may, by written communication to the other, request an impasse meeting. Within ten (10) calendar days after receipt of the written request, there shall be an impasse meeting between the parties to: (a) Make one more attempt to reach agreement; (b) Identify and reduce to writing the issue or issues in conflict (c) Select by mutual consent, the type of impasse procedure to be used. (Res.,3461, 3 Apr 72) 9-2 IMPASSE PROCEDURES. TYPES OF. Any of the following procedures may be selected in order to resolve an impasse: (a) Mediation (_or Conciliation). The mediator shall make no public recommendations nor take any public position concerning the issues. Mediation shall be conducted under the rules of the California State Conciliation 2 Service. (b) Fact Finding. The Fact Finder shall report his findings only to the parties involved and the Personnel Board. Fact finding shall be conducted under the rules and, regulations of the American Arbitration Association. (c) Advisory Arbitration. To be conducted under the rules and regulations of the American Arbitration Association; the arbitrator's recommendations will be submitted to both parties and the Personnel Board. (d) Personnel Board Hearing. The impasse may be referred to' the Personnel Board for a hearing and recommendation to' the City Council. When an impasse is resolved in accordance with the procedures set forth in this section, the memorandum of agreement shall be modified accordingly, and such modified memorandum of agreement shall be submitted to the Personnel Board for review and recommendation to the City Council. Said modified agreement shall not be binding, nor of any force or effect, unless and until approved by the City Council. 9-3 PROCEDURES GENERALLY. The following provisions shall apply to all impasse procedures: (a) Costs, if any, of impasse procedure will be borne equally by the parties; (b) All sessions under impasse procedure shall be private. (c) The result of any impasse procedure is subject to approval of the City Council (JX-A). ARBITRATOR'S NOTE: The Parties agreed to and submitted this impasse to the undersigned pursuant to the Advisory Arbitration procedures described above. II. PRIOR ARBITRATION AWARD GRIEVANCE HEARING - Hearing Officer Joseph F. Gentile "Based on this evidence record, as a whole, it is the RECOMMENDATION of this Hearing Officer to the Personnel Commission that the Personnel Commission find that: the City be found to have acted in violation of the MOU's Article 4 for the reasons stated above and as a remedy to the above violation that the City be directed to meet and confer in good faith' with the HBFA. regarding the manning of the 'multi -unit assemblage/single company approach." (3) (footnote omitted) (Hearing Officer's Report November 30; 3 1991) BACKGROUND AND SUMMARY OF FACTS This process occurred as previously described under "Issues", above. The Parties initially were ordered to negotiate over the matter of the "manning of the 'multi -unit assemblage/single company' approach" by Arbitrator Gentile. The Parties expanded that decision to include comprehensive negotiations over a whole new minimum staffing Article. Numerous agreements were reached. Several items, some interrelated, were not agreed to and were submitted to arbitration. As a result of an earlier hearing day in this present impasse process, the Parties agreed to further intensive negotiations conducted without Counsel and essentially between Line Management of the Fire Department and the. Union Negotiating Team. This resulted in further clarification of issues and agreements. Finally, formal hearings were held over several days wherein both Parties, represented by Counsel, were afforded a full opportunity to present their position, arguments, evidence and facts bearing on their remaining differences. Both Parties submitted written Pre and Post Hearing Briefs. Because both Parties made reference to the November 1991 Report of Arbitrator Joseph Gentile, especially with regard to its impact on the current process, a brief comment will help clarify. The Gentile Decision created the "meet and confer in good faith" obligation essentially in mid -Contract term, and holds no other significance for the future. Grievance Arbitration Reports or 4 Awards have life only until superseded by negotiations (unless the Parties somehow mutually agree otherwise). Here, the essence of the Gentile Report has been dealt with fully in the Parties' discussions, negotiations and 'offers' and 'revised offers' to this Arbitrator during this arbitration process. While the conditions, constraints and basic frames of reference offered by Arbitrator Gentile were helpful to the Parties in establishing their negotiations positions, and to the Arbitrator in understanding those positions, the effect of that Report/Award is ended once the Parties, through this process and any further final action, have a completed new minimum staffing Article. While for historical purposes and in terms of showing negotiations' history, Arbitrator Gentile's Report/Award may prove instructive, it cannot be determinative as other than a purely historical document. The essence of the Parties' Agreement is in the Contract itself. To the extent that meaning and intent can be discerned from the written language, and hopefully that is the case here, there is no need to refer to prior precontract information. The Parties have spent several years and many hours of direct face-to-face negotiations, and an intensive hearing process in attempting to conclude negotiations on this matter. Accordingly, this Arbitrator will not attempt to delineate in detail the positions of the Parties on each one of the 13 issues. Rather, incorporated herein by reference, are the following documents outlining the positions and arguments of the Parties on the issues as they perceived them: 5 1. HBFA Pre Hearing Brief (February 9, 1993) 2. HBFA Post Hearing Brief (April 12, 1993) 3. City Pre Hearing Brief (February 9, 1993) 4. City Post Hearing Brief (April 1, 1993) Since the undersigned Arbitrator's Briefs were heavily marked; up during the Hearing and deliberations' process, "clean" copies of these briefs may be obtained from the respective Parties. No transcript of any of the meetings or hearings in this matters were taken. The only official notes of the Arbitration itself are those of the Arbitrator. That record is destroyed as is customary, upon issuance of this Award. The undersigned believes that the Parties have fully, fairly and completely negotiated the totality of Article 4. Hopefully the Parties will receive and accept this Report and Award on each of the 13 disputed items contained in full and complete settlement of their negotiations. Failing Agreement, the Parties mandated procedure requires that the Arbitrator's recommendations be submitted to both Parties and the Personnel Board, without further specificity as to further action to be taken. FINDINGS, DECISION AND AWARD The Parties prepared as JX-1, four Attachments laying out their respective positions on each of the approximately 13 disputed items. Those are the principle frames of reference used by the undersigned, but are most clearly summarized in the City's Post Hearing Brief of April 1, 1993 which types each Parties' proposal in toto. Accordingly, the outline below follows only the format of the City's brief and repeats the proposed language of each Party on 2 each item with a corresponding recommended Award. One overall rationale and conclusion is important to state at the outset. That is, that, as the Parties expressed, much of their positions consttute attempts to develop language that is consistent with their past practice. Much of their approach was as "language - cleaning up" negotiations rather than adopting whole new positions. Thus, for example, virtually no information was provided by either Party on the arbitral touchstone of comparisons with other Firefighting Agencies of like size and working conditions. The Parties are not attempting to bring to bear those comparisons in other Agencies where they believe that Huntington Beach is deficient. Rather, they appear to have a long standing viable working relationship which should be codified to eliminate confusion and dispute. Wherever possible, the undersigned has relied upon current language as well rather than unilaterally reinventing the wheel, as it were. With regard to the Arbitrator's decisions below, where he adopts in whole the language of one or another of the Parties, he essentially is also adopting the rationale as provided by that Party in its Post Hearing Brief and those documents should be referred to for edification. 7 Specific Findings and Decisions Issue One - A. DEFINITIONS CITY A. I. APPARATUS shall be defined as any vehicle utilized to respond to fires, other emergencies or work assignments which requires a California Class A, Class B firefighter restrictive driver's license. (f) A SPECIAL PURPOSE APPARATUS is apparatus not otherwise defined in this Article and utilized for response to alarms. HBFA A. 1. APPARATUS shall be defined as any Fire Department vehicle utilized to respond to fires, other emergencies or work assignments for which the State of California requires a California' Class A, Class B or Class B Firefighter restrictive driver's license and/or requires special skills, knowledge or training to operate. A. (f) A SPECIAL PURPOSE APPARATUS is all Fire Department apparatus not otherwise defined in this Article and utilized for response to alarms. ARBITRATOR'S DECISION/AWARD: A. 1. APPARATUS shall be defined as any vehicle utilized to respond to fires, other emergencies or work assignments which requires a California Class A, Class B firefighter restrictive driver's license. A. (f) A SPECIAL PURPOSE APPARATUS is apparatus (,as defined in No. 1 above), not otherwise described in this Article and utilized for response to alarms. Rationale: This clarifies that the SPECIAL PURPOSE APPARATUS is identified as vehicles under the command and control of the Fire Department and utilized by Fire Department personnel. Past practice does not indicate any purpose of intending to contract out defacto by utilizing non -department equipment on any routine basis or to utilize other than proper classifications of firefighting personnel in their operations. There are sufficient safeguards in labor/management principles to preclude the operation and driving by firefighting personnel of equipment for which they are not qualified so as to create clear unsafe and non -protection conditions. Finally, in the -final analysis, Management whether at the level of Captain or non -unit personnel has to make the final determination as to whether a company member has the skills or knowledge to operate a piece of equipment, subject to the usual and available appeal procedures. Issue Two - A. DEFINITIONS (continued) CITY A. 2. A FIRE COMPANY is a firefighting force M. commanded by a single Company Commander. HBFA A. 2. A FIRE COMPANY is a group of firefighting personnel commanded by a single Fire Captain. ARBITRATOR'S DECISION/AWARD A. 2. A FIRE COMPANY is a firefighting force commanded by a single Fire Captain (or a person assigned/qualified as such). Rationale: The parenthetical phrase as recommended above is consistent with the Association's proposal in other places (see for example the Association's Post Hearing Brief on page 25 relative to the assignment of persons to Fire Engineer positions). The Association is correct, there should be no perception that the Contract should be used to remove Bargaining Unit work to non -unit employees. It is clear both by practice and mutual intent that in significant emergencies and under certain conditions, other than persons in the permanent classification of Fire Captain can act in that capacity pursuant to other department policies such as D-3 (Call -Back Staffing System). "Firefighting force" is consistent with current policy. Issue Three - MINIMUM STAFFING CITY: B. 1. Each Fire Company shall be staffed with a minimum of three (3) personnel and may be assigned various firefighting or other emergency related activities as well as routine duties. Fire Companies are generally assigned as Engine Companies or Truck Companies when they operate with a Fire Engine or Fire Truck apparatus. They may, however, operate without apparatus or with more than one (1) vehicle or apparatus. When operating with more than one (1) vehicle or apparatus, the minimum staffing requirements of this Section shall be required when the vehicle is operated on an incident scene. Apparatus responding Code 3 shall be staffed with a minimum of two persons. HBFA: B. 1. Each Fire Company shall be staffed with a minimum of three (3) personnel and may be assigned various firefighting or other emergency related activities as well as routine duties. Fire Companies are generally assigned as -Engine Companies or Truck Companies when they operate with a Fire Engine or Fire Truck apparatus. They may, however, operate without apparatus or with more than. one (1) vehicle or apparatus. When operating with more than one (1) vehicle or apparatus, the minimum staffing requirement of this Section shall be required when the vehicle is operated on an incident scene. ARBITRATOR'S DECISION/AWARD B. 1. Each Fire Company shall be staffed with a minimum of three (3) personnel and may be assigned various firefighting or other emergency related activities as well as routine duties. Fire Companies are generally assigned as Engine Companies or Truck Companies when they operate with a Fire Engine or Fire Truck apparatus. They may, however, operate without apparatus or with more than one (1) vehicle or apparatus. When operating with more than one (1) vehicle or apparatus, the minimum staffing requirements of this Section shall be required when the vehicle is operated on an incident scene. Apparatus responding Code 3 shall be staffed with a minimum of two persons. Rationale: This decision'effectively begins to deal with the dispute resulting in the Gentile Arbitration Award. That Award did not deal definitively with the issue but rather referred the Parties to negotiation of which this instant arbitration is the culmination. It is clear that the Fire Company at Gothard Station is unique since it consists of the usual three (3) persons' complement, but covering three (3) different vehicles. The language adopted will clearly define the conditions under which less than a full contingent of three (3) Firefighters can respond Code 3 (when considered also with regard to B.2.(a) below. Issue Four - B. MINIMUM STAFFING (Continued) CITY: B. 2. (a) In the event that a member is temporarily detached from a Company, and where qualified personnel are available, the Company may continue to respond (for a period not to exceed four ( 4 ) hours to medical aid calls and single engine alarms until a replacement can be obtained. A second fully -staffed engine shall be dispatched Code 2 whenever a two (2) person company responds. HBFA (No HBFA proposal) ARBITRATOR'S DECISION/AWARD B. 2. (a) In the event that a member is temporarily detached from a Company, and where qualified personnel are available, the Company may continue to respond ( for a period not to exceed four (4) hours) to medical aid calls and single engine alarms until a replacement can be obtained pursuant to Policy D-3 (Callback Staffing System). A second fully -staffed engine shall be dispatched Code 2 whenever a two (2) person company responds. Rationale: It is the intent of the undersigned that the Parties deal with issues of "short" Companies by a reference to their own Callback Staffing Policy. Such Policy sets in place a known and understood procedure for the filling of vacancies. Since the full language of Article B requires a minimum staffing of three (3) personnel for each Fire Company, attempts to circumvent that clear language and the Callback Policy can be effectively thwarted through effective Contract administration. 10 Issue Five - B. MINIMUM STAFFING (continued CITY: B. 7. Each in-service Hazardous Materials apparatus shall be staffed with a Fire Company of which the regularly assigned personnel shall be specifically trained in Hazardous Materials incident practices and procedures in accordance with, Article VIII, Section D, Part 5 of the Fire MOU. One or more of the personnel staffing the Hazardous Materials apparatus may be assigned as technical advisors to an emergency's Incident Commander. When this occurs, the remaining personnel may be reassigned to other companies involved in the incident including the Newport Beach Haz Mat Team or other Hazardous Materials Joint Powers Authority providers. HBFA: B. 7. Each in-service Hazardous Materials apparatus shall be staffed with a Fire Company of which the regularly assigned personnel shall be specially trained in Hazardous Materials incident practices and procedures in accordance with Article V, Section E, Part 5 of the Fire MOU. ARBITRATOR'S DECISIONIAWARD B. 7. Each in-service Hazardous Materials apparatus shall be staffed with a Fire Company of which the regularly assigned personnel shall be specifically trained in Hazardous Materials incident practices and procedures in accordance with Article VIII, Section D, Part 5 of the Fire MOU. One or more of the personnel staffing the Hazardous Materials apparatus may be assigned as technical advisors to an emergency's Incident Commander. When this occurs, the remaining personnel may be reassigned to other companies involved in the incident including the Newport Beach Haz Mat Team or other Hazardous Materials Joint Powers Authority providers. Rationales As discussed briefly in the Section of this Award dealing with the "Communications (Fire Controller) operation it is important the Parties codify their practices with regard to their Joint Powers arrangement. The language here would clarify the obvious desirous result that Huntington Beach personnel_ can be assigned as needed as though they are working for a single employer. Both Parties seem to agree that the HazMat Unit does not have to be staffed with three (3) people exclusively. Issue Six - B. MINIMUM STAFFING (continued) CITY: B. 8. Special Purpose Apparatus shall be staffed. with one (1) person when responding Code 2 and with no less than two (2) personnel when responding Code 3 to alarms. HBFA: B. 8. Special Purpose Apparatus shall be staffed with no less than (1) Fire Engineer and either one (1) Fire Captain or one (1) Firefighter when responding Code 3 to alarms. 11 ARBITRATOR'S DECISION/AWARD B. 8. Special Purpose Apparatus shall be staffed with no less than one (1) person a (Fire Engineer or Firefighter assigned/qualified as such) when responding Code 2 and with no less than two (2) personnel (one of whom must be a Fire Engineer or a Firefighter assigned/qualified as a Fire Engineer) when responding Code 3 to alarms. Rationale: This is consistent with the Association's concern that employees not appropriately assigned or qualified to operate apparatus be required to do so. The Job Description of the Fire Engineer indicates that indeed that Classification is the "driving" Classification of the Department. Employees performing that function should be working in that Classification or appropriately assigned. The City cannot expect to be permitted to assign non -appropriately classified personnel to job duties without incurring claims of working persons out of classification or at inappropriate compensation rates. Issue Seven - B. MINIMUM STAFFING (continued) CITY: B. 10. The minimum staffing as set forth in this Article, shall be specifically and exclusively from Public Safety employees of the Huntington Beach Fire Department for all routine activities and normal shift duties. Reserve Firefighters shall not be used to meet minimum staffing levels. HBFA: B. 10. The minimum staffing as set forth in this Article, shall be specifically and exclusively from members of the Huntington Beach Firemen's Association representation unit (excluding Reserve Firefighters) for all routine activities and normal shift duties. ARBITRATOR'S DECISION/AWARD B. 10. The minimum staffing as set forth in this Article, shall be specifically and exclusively from Public Safety employees of the Huntington Beach Fire Department for all routine activities and normal shift duties. Reserve Firefighters shall not be used to meet minimum staffing levels. Rationale: This is consistent with current Contract language adding to the mutually agreed to restriction relative to "Reserve Firefighters". Any assignment of employees from outside the Bargaining Unit must be consistent with the "Callback Policy" (D-3) and other requirements specifically mentioned in the new language of this Article. The Association clearly does not intend to exclude Management personnel from operating firefighting equipment on an exclusive basis (see for example the statement on page 21 of the Association's Post Hearing Brief, that "the Fire Department may utilize Management personnel" ). The Association's proposed 12 language would only confuse this issue and permit legitimate disagreements over what the clear language of the Contract means with such restrictions. Issue Eight - B. MINIMUM STAFFING (continued) CITY: B. 11. In the event a Fire Engineer is detached from a Company, another member properly licensed may drive the apparatus on a temporary basis. However, if a member is a certified apparatus operator, then he/she may drive and operate apparatus on a temporary basis as defined in 2(a) above. HBFA: B. 11. (no HBFA proposal) ARBITRATOR'S DECISION/AWARD B. 11. No language need be adopted here. Rationale: The Department's language is confusing vis-a-vis other related Contract language and the conclusion that vehicle drivers need not be "Fire Engineers". There is already a provision to permit persons not formally classified as Fire Engineers to drive apparatus. This language appears to be redundant to Section B.2.(a) already dealt with. Issue Nine - B. MINIMUM STAFFING (continued) CITY: B. 12. No City proposal HBFA: B. 12. One (1) Fire Engineer shall be assigned as Battalion Chief's Aide. ARBITRATOR'S DECISION/AWARD B. 12. No. language is needed here. Rationale: Battalion Chief's Aide is a "luxury" not routinely used in every Fire Department. While an important adjunct position, there is no need to mandate the requirement for an Aide. This is not consistent with -past practice. The current language will serve to clarify the limitations of the .use of the aide, however, without mandating its continuity in perpetuity. Issue Ten - C. MINIMUM STAFFING OF COMMUNICATIONS CITY: C. There shall be at least two (2) Fire Controllers on duty at all times consisting of any combination of Fire Controllers or Fire Controller -Shift Supervisors. The ASSOCIATION shall be 13 notified yearly by January 31 regarding staffing changes for the following fiscal year. If staffing changes are contemplated, a committee of three (3) Fire Controllers shall be formed to provide input on the impacts of the July 1 staffing changes. HBFA: C. Presently, there are three (3) regularly assigned personnel for the Fire Dispatch Center, consisting of two (2) qualified Fire Controllers and one (1) Fire Controller -Shift Supervisor, who are on -duty at all times. The parties shall engage in the Meet and Confer process in the event that the work load of the present employee complement is affected due to any policy, decision of the Joint Powers, including any deletion or addition to the present member status of the Joint Powers Authority. (The current cities are Fountain Valley, Huntington Beach, Newport Beach and Westminster.) . ARBITRATOR DECISION/AWARD C. There shall be at least three (3) Fire Controllers on duty at all times consisting of any combination of Fire Controllers or Fire Controller -Shift Supervisors. The Association shall be notified yearly by January 31 regarding staffing changes for the following fiscal year. If a Management decision is made to make staffing, changes the Parties may engage in the "Meet and Confer in good faith" process at either's request. Such negotiations shall be controlled by the timelines of Section F. below. Rationale: The proposed language codifies long time practice. So long as the Joint Powers Agreement is in effect, it appears that Huntington Beach must employ three (3) Fire Controllers per shift. Just as in the above Sections dealing with the assignment of HazMat employees, this is a case where the Association has a direct interest in dealing with the impact of Joint Powers -related decisions. While apparently the Association cannot negotiate directly with the Joint Powers Agencies (as happens in other governmental levels), there is sufficient flexibility here to deal', with Joint Powers changes. Thus, should the Joint Powers arrangements change to mandate a different level of staffing, the Parties agree by this language to implement changes immediately or at least on an annual basis and negotiate on the basis of "impact". "Impact bargaining" is,a necessary adjunct of the exercise of management rights even in the face of restrictive Contract language. Issue Eleven - D. FILLING OF VACANCIES CITY: D. 5. When a vacancy exists on any apparatus, the vacancy shall be filled rank for rank based upon the provisions of the Fire Department Policy D-3 (Callback Staffing System). However, in the event that a vacancy cannot be filled on a voluntary or mandatory holdover basis, the vacancy may be filled at the discretion of the Fire Chief by transferring any qualified 14 member prior to ordering a member in. A vacancy created by a transferred shift member shall be filled with an off -duty member of, the same rank. HBFA: D. 5. When a vacancy exists on any apparatus, the vacancy shall be filled rank for rank based upon the provisions of the Fire Department Policy D-3 (Callback Staffing System). ARBITRATOR DECISION/AWARD D. 5. When a vacancy exists on any apparatus, the vacancy shall be filled rank for rank based upon the provisions of the Fire Department Policy D-3 (Callback Staffing System). Rationale: The Association is convincing in its argument that the essentially agreed upon Fire Department Policy D-3 can deal, with all contingencies here. In the event that it can't, it is that Policy that should renegotiated by the Parties, rather than "gap -filling" with extraneous Contract language. The Parties have lived effectively with Policy D-3 and should attempt to make it work with regard to holdovers on a voluntary or mandatory basis. Issue Twelve - E. NEW EQUIPMENT CITY: E. Any Fire Department apparatus, vehicles, technological changes, and new innovations other than replacement apparatus/equipment will be discussed with the ASSOCIATION, along with any minimum staffing requirements, prior to being in full' service. HBFA: E. 1. If the CITY desires to change staffing levels not provided for in the MOU, or to utilize any new equipment over and above that presently in use, including Fire Department apparatus or vehicles, and if such intended action will affect the safety or working conditions of affected employees, the CITY and the ASSOCIATION shall Meet and Confer in good faith prior to such intended action being implemented. E. 2. The Meet and apply to any proposed department unit(s)/van(s). ARBITRATOR DECISION/AWARD Confer process/obligation shall action to eliminate any paramedic E. 1. If the City makes a managerial decision to change staffing levels provided for in the MOU, or to utilize any new apparatus over and above that presently in use, the City and Association shall Meet and Confer in good faith prior to such action being implemented. E. 2. The Meet and Confer process/obligation shall apply to any managerial decision to eliminate any paramedic unit(s)/van(s). 15 Rationale: The undersigned believes that the above corresponds with what the Parties understood this special negotiations, obligation to be. It is not to negotiate over "contemplated" decisions or to permit mid-term bargaining except as current Contract language would be changed or new equipment would be. introduced (non -replacement equipment that is) which would affect staffing levels. If the MOU is to be affected because of some perceived mandatory reason by Management, then it should indeed be be obligated to some "impact bargaining" as that term is used in labor/management relations before implementation. Such negotiations shall be expedited as indicated below. Issue Thirteen - F. CHANGES IN STAFFING CITY: F. No City proposal HBFA: F. If the Meet and Confer process is implemented under any provisions of this ARTICLE, the parties shall complete the Meet and Confer process (including any impasse process) within sixty (60) days, unless otherwise extended by Mutual agreement of the parties. ARBITRATOR DECISION/AWARD F. If the Meet and Confer Process is requested by either party, as indicated in the two special Sections above (Fire Controller and New Equipment/Changes in Staffing), the Parties shall complete the process (including any impasse procedure) within 60 days, unless otherwise extended by mutual agreement. Rationale: These two (2) "Impact Bargaining" requirements deal with critical budgetary issues. Expedited and concentrated bargaining is required. 16 AWARD Following are the decisions of the undersigned, grouped together as the single award on all outstanding issues. Issue One - A. DEFINITIONS A. 1. APPARATUS shall be defined as any vehicle utilized to respond to fires, other emergencies or work assignments which requires a California Class"A, Class B firefighter restrictive driver's license. (f) A SPECIAL PURPOSE APPARATUS is apparatus (as described in No. 1 above), not otherwise described in this Article and utilized for response to alarms. Issue Two - A. DEFINITIONS (continued) A. 2. A FIRE COMPANY is a firefighting force commanded by a single Fire Captain (or a person assigned/qualified as such). Issue Three - MINIMUM STAFFING B. 1. Each Fire_Company shall be staffed with a minimum of three (3) personnel and may be assigned various firefighting or other emergency related activities as well as routine duties. Fire Companies are generally assigned as Engine Companies or Truck Companies when they operate with a Fire Engine or Fire Truck apparatus. They may, however, operate without apparatus or with more than one (1) vehicle or apparatus. When operating with more than one (1) vehicle or apparatus, the minimum 'staffing requirements of this Section shall be required when the vehicle is operated on an incident scene. Apparatus responding Code 3 shall be staffed with a minimum of two persons. Issue Four - B. MINIMUM STAFFING (Continued) B. 2. (a) In the event that a member is temporarily detached from a Company, and where qualified personnel are available, the Company may continue to respond (for a period not to exceed four (4).hours) to medical aid calls and single engine alarms until a replacement can be obtained pursuant to Policy D-3 (Callback Staffing System). A second fully -staffed engine shall be dispatched Code 2 whenever a two (2) person company responds. Issue Five - B. MINIMUM STAFFING (continued) B. 7. Each in-service Hazardous Materials apparatus shall be staffed with a Fire Company of which the regularly assigned personnel shall be specifically trained in Hazardous Materials incident practices and procedures in accordance with Article VIII, Section D, Part 5 of the Fire MOU. One or more of the personnel 17 staffing the Hazardous Materials apparatus may be assigned as technical advisors to an emergency's Incident Commander. When this occurs, the remaining personnel may be reassigned to other companies involved in the incident including the Newport Beach Haz Mat Team or other Hazardous Materials Joint Powers Authority providers. Issue Six - B. MINIMUM STAFFING (continued) B. 8. Special Purpose Apparatus shall be staffed with no less than one (1) person a (Fire Engineer or Firefighter assigned/qualified as such) when responding Code 2 and with no less than two (2) personnel (one of whom must be a Fire Engineer or a Firefighter assigned/qualified as a Fire Engineer) when responding Code 3 to alarms. Issue Seven - B. MINIMUM STAFFING (continued) B. 10. The minimum staffing as set forth in this be specifically and exclusively from Public Safety the Huntington Beach Fire Department for all routine normal shift duties. Reserve Firefighters shall meet minimum staffing levels. Issue Eight - B. MINIMUM STAFFING (continued) B. 11. No language need be adopted here. Issue Nine - B. MINIMUM STAFFING (continued) B. 12. No language is needed here. Issue Ten - C. MINIMUM STAFFING OF COMMUNICATIONS Article, shall employees of activities and not be used to C. There shall be at least three (3) Fire Controllers on duty at all times consisting of any combination of Fire Controllers or Fire Controller -Shift Supervisors. The Association shall be notified yearly by January 31 regarding staffing changes for the following fiscal year. If a Management decision is made to make staffing changes the Parties may engage in the "Meet and Confer in good faith" process at either's request. Such negotiations shall be controlled by the timelines of Section F. below. Issue Eleven - D. FILLING OF VACANCIES D. 5. When a vacancy exists on any apparatus, the vacancy shall be filled rank for rank based upon the provisions of the Fire Department Policy D-3 (Callback Staffing System). W, Issue Twelve - E. NEW EQUIPMENT E. 1. If the City makes a managerial decision to change staffing levels provided for in the MOU, or to utilize any new apparatus over and above that presently in use, the City and Association shall Meet and Confer in good faith prior to such action being implemented. E. 2. The Meet and Confer process/obligation shall apply to any managerial decision to eliminate any paramedic unit(s)/van(s). Issue Thirteen - F. CHANGES IN STAFFING F. If the Meet and Confer is requested by either party, as indicated in the two special Sections above (Fire Controller and New Equipment/Changes in Staffing), the Parties shall complete the process (including any impasse procedure) within 60 days, unless otherwise extended by mutual agreement. In conclusion the Arbitrator urges the Parties to adopt the language above and combine it with their agreed language for a complete contract on the issue. Attached is a complete Article 4 as it would appear with both the Parties' Agreements and the Arbitrator's decision. Respectf 1 sub fitted, Phili Tamoush Impartial Arbitrator Torrance, California May 12, 1993 19 APPENDIX A ARTICLE 4 MINIMUM STAFFING AND FILLING OF VACANCIES A. DEFINITIONS For purposes of this Article the following definitions are hereby established: 1. APPARATUS shall be defined as any vehicle utilized to respond to fires, other emergencies or work assignments' which requires a California Class A, Class B firefighter, restrictive driver's license. (a). A FIRE ENGINE is an apparatus with fire pump, fire hose, water tank, ground ladders, necessary firefighting equipment, and may include a "telesquirt" type ladder, but specifically excluding aerial ladder or platform capabilities. (b). A FIRE TRUCK is an apparatus that has beem mounted on the chassis, an aerial ladder or aerial platform, "TRUCK COMPANY" equipment, and may include a fire pump, fire hose, and water tank. (c). A HAZARDOUS MATERIALS (HAZ MAT) UNIT is an apparatus which has tools and equipment used in the mitigation of Hazardous Material incidents. (d). A PARAMEDIC ENGINE or a PARAMEDIC ASSESSMENT ENGINE is a Fire Engine that carries Advanced Life Support equipment. (e). A PARAMEDIC UNIT is a Fire Department vehicle, other than a Fire Engine or Fire Truck, that carries Advanced Life Support equipment. (f). A SPECIAL PURPOSE APPARATUS is apparatus (as described in No. 1 above), not otherwise described in this Article and utilized for response to alarms. 2. A FIRE COMPANY is, a firefighting force commanded by a single Fire Captain (or a person assigned/qualified as such). 3. IN-SERVICE shall be defined as personnel, apparatus, and/or equipment which are available for dispatch to an alarm or actively involved in an alarm. B. MINIMUM STAFFING RE The CITY shall cause apparatus to be staffed with sufficient personnel to assure the safety of employees and the control of risk. For these purposes, the minimum staffing shall be as follows: 1. Each Fire Company shall be staffed with a minimum of three (3) personnel and may be assigned various firefighting or other emergency related activities as well as routine duties. Fire Companies are generally assigned as Engine Companies or Truck Companies when they operate with a Fire Engine or Fire Truck apparatus. They may, however, operate without apparatus or with; more than one (1) vehicle or apparatus. When operating with more than one (1) vehicle or apparatus, the minimum staffing' requirements of this Section shall be required when the vehicle is operated on an incident scene. Apparatus responding Code 3 shall be staffed with a minimum of two persons. 2. Each in-service Engine Company shall be staffed with no less than one (1) Fire Captain, one (1) Fire Engineer, and one (1) Firefighter. Any member may be a Paramedic. (a). In the event that a member is temporarily detached from a Company, and where qualified personnel are available, the Company may continue to respond (for a period not to exceed four, (4) hours) to medical aid calls and single engine alarms until a replacement can be obtained pursuant to Policy D-3 (Callback Staffing System). A second fully -staffed engine shall be dispatched Code 2 whenever a two (2) person company responds. 3. Each in-service Truck Company shall be staffed. with no less than one (1) Fire Captain, one (1) one (1) Fire Engineer and two (2) Firefighters. Any member may be a paramedic. 4. Each in-service Paramedic Unit shall be staffed with no less then two (2) certified Paramedics. 5. Each in-service Paramedic Engine Company shall be staffed with no less than one (1) Fire Captain, one (1) Fire Engineer and two (2) Firefighters. Two (2) of the members must be certified Paramedics. 6. Each in-service Paramedic Assessment Engine Company shall be staffed with no less than one (1) Fire Captain, one (1) Fire Engineer, and one (1) Firefighter. One (1) of the members must be a certified Paramedic. 7. Each in-service Hazardous Materials apparatus shall be staffed with a Fire Company of which the regularly assigned personnel shall be specifically trained in Hazardous Materials incident practices and procedures in accordance with Article VIII, Section D, Part 5 of the Fire MOU. One or more of the personnel staffing the Hazardous Materials apparatus may be assigned as 21 technical advisors to an emergency's Incident Commander. When this occurs, the remaining personnel may be reassigned to other companies involved in the incident including the Newport Beach Haz Mat Team or other Hazardous Materials Joint Powers Authority providers. 8. Special Purpose Apparatus shall be staffed with no less than one (1) person a (Fire Engineer or Firefighter assigned/qualified as such) when responding Code 2 and with no less than two (2) personnel (one of whom must be a Fire Engineer or a Firefighter assigned/qualified as a Fire Engineer) when responding Code 3 to alarms. 9. Fire apparatus not considered to be in service shall not be required to have personnel assigned to them for the purposes of this Article. 10. The minimum staffing as set forth in this Article, shall be specifically and exclusively from Public Safety employees of the Huntington Beach Fire Department for all routine activities and normal shift duties. Reserve Firefighters shall not be used to meet minimum staffing levels. (a) No employee shall be assigned to more than one (1) Fire Company at the same time for all routine activities and normal shift duties. (b) Routine activities and normal shift duties shall include those emergencies that would normally be handled by the on - duty suppression force. C. MINIMUM STAFFING OF COMMUNICATIONS There shall be at least three (3) Fire Controllers on duty at all times consisting of any combination of Fire Controllers or Fire Controller -Shift Supervisors. The Association shall be notified yearly by January 31 regarding staffing changes for the following fiscal year. If a Management decision is made to make staffing changes the Parties may engage in the "Meet and Confer in good faith" process at either's request. Such negotiations shall be controlled by the timelines of Section F. below. D. FILLING OF VACANCIES 1. Employees acting in a higher classification, when properly qualified, shall be considered equivalent to the required classification. (a). Employees acting in a higher classification shall be paid acting pay for all time worked in the higher class when the time cumulatively exceeds two (2) hours within one (1), 24 hour shift. Acting pay will be calculated based on the step range of 22 the higher classification which provides at least a five percent ranger differential. For example, a Firefighter at E step who is qualified and acts as an Engineer will be compensated at the hourly rate of a D step Engineer which is equal to or greater than a five percent differential. 2. Any employee assigned to serve in the capacity of Battalion Chief s Aide, shall not be utilized to satisfy any of the minimum staffing requirements except as set forth in this Article. The BC's Aide may be utilized to fill a position for which he/she is qualified to serve in cases of temporary fill-in of four (4); hours or less. 3. Either one (1) Firefighter or one (1) Firefighter Paramedic assigned to a Truck Company may be utilized for special assignments for a period not to exceed four (4) hours. 4. REPLACEMENT CALLBACK. When a vacancy exists on any apparatus the Department will be obligated to meet minimum staffing obligations of this Article by use of off duty personnel on an overtime basis. In the event an apparatus is placed out of service, those persons previously assigned thereto may be utilized to fill any vacancy prior to the use of off duty personnel on an overtime basis. 5. When a vacancy exists on any apparatus, the vacancy shall be filled rank for rank based upon the provisions of the Fire Department Policy D-3 (Callback Staffing System). E. NEW EQUIPMENT 1. If the City makes a managerial decision to change staffing levels provided for in the MOU, or to utilize any new apparatus over and above that presently in use, the City and Association shall Meet and Confer in good faith prior to such action being implemented. 2. The Meet and Confer process/obligation shall apply to any managerial decision to eliminate any paramedic unit(s)/van(s). F. CHANGES IN STAFFING If the Meet and Confer Process is requested as indicated in the two special Sections, above (Fire Controller and New Equipment/Changes in Staffing), the Parties shall complete the process (including any impasse procedure) within 60 days, unless otherwise extended by mutual agreement. 23 FINAL LANGUAGE 05/12/93 AWTAC MIENY 4 MVIINIMUM STAFFING AND FILLING OF VACANCIES A. DEFINITIONS For purposes of this Article the following definitions are hereby established: 1. APPARATUS shall be defined as any vehicle utilized to respond to fires, other emergencies or work assignments which requires a California Class A, Class B, or Class B firefighter restrictive driver's license. (a) A FIRE ENGINE is an apparatus with fire pump, fire hose, water tank, ground ladders, necessary firefighting equipment, and may include a "telesquirt" type ladder, but specifically excluding aerial ladder or platform capabilities. (b) A FIRE TRUCK is an apparatus that has mounted on the chassis, an aerial ladder or aerial platform, "TRUCK COMPANY" equipment, and may include a fire pump, fire hose, and water tank. (c) A HAZARDOUS MATERIALS (HAZ MAT) UNIT is an apparatus which has tools and equipment used in the mitigation of Hazardous Materials incidents. (d) A PARAMEDIC ENGINE or a PARAMEDIC ASSESSMENT ENGINE is a Fire Engine that carries Advanced Life Support equipment. (e) A PARAMEDIC UNIT is any Fire Department vehicle, other than a Fire Engine or Fire Truck, that carries Advanced Life Support equipment. (f) A SPECIAL PURPOSE APPARATUS is apparatus * jW not otherwise defined in this Article and utilized for response to alarms. 2. A FIRE COMPANY is a firefighting force commanded by a single Eempany ....::4:{}'r';•+{•x}••}:?;'}v}:;}}":•y:{{•:{•:{..�ryi:•}:4yy.}Y.•}:yi{?yi.•}1.:::2{•Y•:t•:�:"?}}:•}}:6}:;:is...:•}::"r::•:{y{•i:Q%{•:}}}:': 'i vvmWa.*ude :v+ ik .i:••���,', •�, 'ia,Y,.M�'�ii'�`„�, •�f,.,,:;j(•:{4fv:. :n...:.. }i}�� ���;\?i:i::i4:?C}.: {f4::::v.{. }:•:•:::?•:tii•.vt::•:•:..u.:...:..•.uu{{-0C�?}}::i:::titiLtiii: .iri:. 3. IN-SERVICE shall be defined as personnel, apparatus, and/or equipment which are available for dispatch to an alarm or actively involved in an alarm. The CITY shall cause apparatus to be staffed with sufficient personnel to assure the safey of employees and the control of risk. For these purposes, the minimum staffing shall be as follows: 1. Each Fire Company shall be staffed with a minimum of three (3) personnel and may be assigned various firefighting or other emergency related activities as well as routine duties. Fire B:final.red (05/18/93) 1 Companies are generally assigned as Engine Companies or Truck Companies when they operate with a Fire Engine or Fire Truck apparatus. They may, however, operate without apparatus or with more than one (1) vehicle or apparatus. When operating with more than one (1) vehicle or apparatus, the minimum staffing requirements of this Section shall be required when the vehicle is operated on' an incident scene. Apparatus responding Code 3 shall be staffed with a minimum of two (2) persons. 2. Each in-service Engine Company shall be staffed with no less than one (1) Fire Captain, one (1) Fire Engineer, and one (1) Firefighter. Any member may be a Paramedic. (a) In the event that a member is temporarily detached from a Company, and where qualified personnel are available, the Company may continue to respond (for a period not to exceed four (4) hours) to medical aid calls and single engine alarms until a replacement can be obtained ; ...:.:::............:....::...........::::....:.....:............:....... ..... A second fully staffed engine shall be dispatched Code 2 whenever a two (2) person company responds. 3. Each in-service Truck Company shall be staffed with no less than one (1) Fire Captain, one (1) Fire Engineer and two (2) Firefighters. Any member may be a Paramedic. 4. Each in-service Paramedic Unit shall be staffed with no less than two (2) certified Paramedics. 5. Each in-service Paramedic Engine Company shall be staffed with no less than one (1) Fire Captain, one (1) Fire Engineer, and two (2) Firefighters. Two (2) of the members must be certified Paramedics. 6. Each in-service Paramedic Assessment Engine Company shall be staffed with no less than one (1) Fire Captain, one (1) Fire Engineer, and one (1) Firefighter. One (1) of the members must be a certified Paramedic. 7. Each in-service Hazardous Materials apparatus shall be staffed with a Fire Company of which the regularly assigned personnel shall be specially trained in Hazardous Materials incident practices and procedures in accordance' with Article VIII, Section D, Part 5 of the Fire MOU. One or more of the personnel staffing the Hazardous Materials apparatus may be assigned as technical advisors to an emergency's Incident Commander. When this occurs, the remaining personnel maybe reassigned to other companies involved in the incident including the Newport Beach Haz Mat Team or other Hazardous Materials Joint Powers Authority providers. 8. Special Purpose Apparatus shall be staffed with t� one (1) person when responding Code 2 and with no less than two ........................................................ when responding Code 3 6. alarms. 9. Fire apparatus not considered to be in service shall not be required to have personnel assigned to them for the purposes of this Article. 10. The minimum staffing as set forth in this Article, shall be specifically and exclusively from Public Safety employees of the Huntington Beach Fire Department for all routine activities 'and - normal shift duties. Reserve Firefighters shall not be used to meet minimum staffing levels. B:final.red (05/18/93) 2 (a) No employee shall be assigned to more than one (1) Fire Company at the same time for all routine activities and normal shift duties. (b) Routine activities and normal shift duties shall include those emergencies that would normally be handled by the on -duty suppression force. 12. C. MINIMUM STAFFING OF COMMUNICATIONS There shall be at least two Fire Controllers on duty at all times consisting of any combination of Fire Controllers or Fire Controller -Shift Supervisors. The ASSOCIATION shallbe notified yearly by January 31 regarding staffing changes for the following fiscal year. I€stafft D. FILLING OF VACANCIES 1. Employees acting in a higher classification, when properly qualified, shall be considered equivalent to the required classification. (a) Employees acting in a higher classification shall be paid acting pay for all time worked in the higher class when the time cumulatively exceeds two (2) hours within one (1), 24 hour shift. Acting pay will be calculated based on the step range of the higher classification which provides at least a five percent range differential. For example, a Firefighter at E step who is qualified and acts as an Engineer will be compensated at the hourly rate of a D step Engineer which is equal to or greater than a five percent differential. 2. Any employee assigned to serve in the capacity of Battalion Chief's Aide, shall not be utilized to satisfy any of the minimum staffing requirements except as set forth in this Article. The BC's Aide may be utilized to fill a position for which he/she is qualified to serve in cases of temporary fill-in of four (4) hours or less. 3. Either one (1) Firefighter or one (1) Firefighter Paramedic assigned to a Truck Company may be utilized for special assignments for a period not to exceed four (4) hours. 4. REPLACEMENT CALLBACK. When a vacancy exists on any apparatus the Department will be obligated to meet minimum staffing obligations of this Article by use of off duty personnel on an overtime basis. In the event an apparatus is placed out of service, those persons previously assigned thereto may be utilized to fill any vacancy prior to the use of off duty personnel on an overtime basis. B:final.red (05/18/93) 3 5. When a vacancy exists on any apparatus, the vacancy shall be filled rank for rank based upon the provisions of the Fire Department Policy D-3 (Callback Staffing System). However, in th-e of the same rank. E. NEW EQUIPMENT PROF � Y � F. CHANGES IN STAFFING B:final.red (05/18/93) 4 ri LAW OFFICE OF RICHARD J. SILBER > RPOFESSIONAL CORPORATION Z134 MAIN STREET. SUITE 130 SEACLIFF OFFICE PARK HUNTINGTON BEACH, CALIFORNIA 92648 (714) 960-7646 FACSIMILE (714) 960-7640 July 12, 1993 To: City of Huntington Beach Attu: Daniel Cassidy, Esq. William Osness, Personnel Director Michael Dolder, Fire Chief From: HBFA "Manning Negotiation Committee" Richard J. Silber, HBFA Attorney T-FACENT S S b LOP` JUL 13 1993 9 nu DEPART"°ENT Re: 5/12/93 Advisory Impasse Arbitration Award "Minimum Staffing and Filling of Vacancies" HBFA's desires to discuss with the City/Fire Department the application/interpretation of the following rulings of the Arbitrator's Award: B2 - "two person short Company" a. What does "continue to respond" mean. b. When and how must D-3 be applied as it relates to the "period not to exceed four (4) hours". B8 - Special Purpose Apparatus a. What does "qualified as a Fire Engineer" mean; how determined. Same question applies, when "qualified", found elsewhere. C - Minimum Staffing of Communications The Arbitrator states that "the Parties may engage in the "meet and confer in good faith" process at either's request. In view of the Arbitrator's Rationale and the Arbitrator's Ruling under Issue 13 (page 16) "60 day' negotiation period", is this a typographical error which should state "shall" as Issue 12 - "new Equipment Negotiations" so states; or does "may" mean, negotiations! a RJS:bm are implemented/engaged in at the request of either party. The City's view and position of this "meet and confer" requirement are requested. Sincerely, RICHARD J. •'SILBER ATTACHMENT 6 JOHN LIE@ERT D .NIEL C. CASSIDY 'RY J. VRIERSON 'A JENSON CE A. BARSOOK FREY SLOAnI ..IC HARD M. KREISLER LINDA A. TRIPOLI MARIE CORLETT SLITS OE BRA L_ BRAY MI LOREO COLLINS ARTURO MORALES CARMEN PLAZA OE JENNINGS EDWARD B. REITKOPP ALAN G. ATLAS ROSARIO TOBIAS PETER J. BROWN JEFFREY LEACOx SCOTT N. KIVEL ANY R. PLEATMAN JAYNE B. CHIPMAN W. MICHAEL BATTLE OI COUNS[L MELAN IE M. POTURICA MARY L. DOWELL VIRGINIA A. RIEGEL REGINALD T. MURPHY DIRECTOR — TRAINING PROGRAMS LAW OFFICES LIEBERT, CASSIDY & FRIERSOI` A PROFESSIONAL CORPORATION 6033 WEST CENTURY BOULEVARD SUITE 601 LOS ANGELES, CALIFORNIA 90045 (310) 645-6492 FAX (310) 337-0837 Mr. Richard Silber Attorney at Law 2134 Main Street, Suite 130 Huntington Beach, California 92648 July 23, 1993 Re: Letter of Clarification to Arbitrator Phil Tamoush Dear Mr. Silber: ter," ''' r d 10 SAN FRANCISCO OFFICE: 49 STEVENSON STREET SUITE 1050 SAN FRANCISCO. CALIFCI.RNIA 94105-2909 (415) 546-6100 FAX 1415) 546-6831 In order to satisfy the Association's concern regarding the use of the work "qualified" by Mr. Tamoush in Section B.8 of his opinion, the City suggests the attached joint letter be sent. If you concur, please sign and transmit the letter to Mr. William Osness, who will sign for the City. Sincerely, LIEBERT, CASSIDY & FRIERSON BY bvvux, —/ Daniel C. Cassidy DCC:gIc.misc#1 ftassidy\silber.723 Enclosure cc: William Osness Chief Dolder FIRE DEPARTMENT 9 Phil Tamoush, Arbitrator P. O. Box 1128 Torrance, California 90505 Ile: Advisory Impasse Arbitration Award of May 12, 1993, entitled Minimum Staffing and Filling of Vacancies Dear Mr. Tamoush: The parties have reviewed your decision in the above -entitled matter. The Huntington Beach Firefighters Association requires clarification on one point before it will agree to jointly recommend that the City Council adopt your decision. On Page 12 of your award, you state as follows: "B.8 Special Purpose apparatus shall be staffed with no less than one (1) person a Fire Engineer or Firefighter assigned/qualified as such when responding Code 2 and with no less than two (2) personnel (one of whom must be a Fire Engineer or a Firefighter assigned/qualified as a Fire Engineer) when responding Code 3 to alarms." The point of clarification arises because of the use of the word "qualified." Who determines who is qualified? May the criteria for determining who is qualified include subjective as well as objective criteria such as a supervisor's knowledge of the individuals on the job performance and work experience? If the supervisor may only use objective criteria, what other criteria may the supervisor consider besides verifying that in appropriate cases, the individual has the proper licenses or certificates or education or completed on the job training courses. We would appreciate your response so that the parties can bring closure to this matter. Very truly yours, For the City DCQg1c.misc#16\cassidy\si1ber.723 For the Association LAW OFFICE OF RICHARD J. SILBEI A PROFESSIONAL CORPORATION 2134 MAIN STREET. SUITE 130 SEACLIFF OFFICE PARK HUNTINGTON BEACH. CALIFORNIA 92648 (714) 960-7646 FACSIMILE (714) 960-7640 September 14, 1993 To: City of Huntington Beach Attn: Daniel Cassidy, Esq. William Osness, Personnel Director Michael Dolder, Fire Chief From: HBFA "Manning Negotiation Committee" Richard J. Silber, HBFA Attorney Re: 5/12/93 Advisory Impasse Arbitration Award "Minimum Staffing and Filling of Vacancies" RESPONSE TO 7/23/93 CITY "CLARIFICATION" COMMUNICATION Pursuant to the meeting with City representatives on 7/-13/93 , and in response to the City's 7/23/93 "Letter of Clarification to the Arbitrator, HBFA sets forth its Position concerning three (3) Rulings of the Arbitrator's Award as delineated in its 7/12/93 communication to the City. HBFA's Position concerns the interpretation/application of 11B.2(a) Response of a short Engine Company" - D-3 application; B.8 "Special Purpose Apparatus" - "Qualified Meaning" for Fire Engineer and Fire Captain; and C. "Minimum Staffing of Communications" - "Meet and Confer" obligation. In the event that the City disagrees with HBFA's interpretation/ application of these three (3) Arbitrator's Rulings, please be advised that HBFA is willing to resolve such "clarification/ application disputes pursuant to either of the following procedures: (1) Submission of the dispute to Mr. Tamoush, for resolution, with a question as to his interpretation, as set forth herein. The City and HBFA will submit their respective position(s) concerning each question (to be submitted by Mr. Osness, as a Joint Package,, i.e. Question and Position(s)); or (2) A new hearing will be conducted with each party presenting its respective position. At the conclusion thereof,, each party to submit a written Summary of its respective position to Mr. Tamoush. Re: HBFA 09/14/93 Page 2 As indicated by this communication, the City's 7/23/93 "Letter of Clarification to Arbitrator" concerning the "Qualified" issue is unacceptable to HBFA. Such.communication appears to represent the City view/position as to the "qualified" issue, and is not consistent with the Arbitration Award, long-standing past practice, or labor relations principles interpreting/applying MOU/Labor Agreement terms and conditions of employment. Therefore, consistent with the above, and HBFA's Position(s) attached hereto, HBFA requests the City's advisement as to the City's agreement/disagreement as to HBFA's Position(s), and which of the above procedures is acceptable to the City to resolve any outstanding "manning/staffing" disputes. Thank you for your continuous consideration and cooperation. Respectfully submitted, PICA Ctl�, �t�t.. RICHARD J. ILBER, Attorney for HBFA cc: HBFA Re: 5/12/93 Advisory Impasse Arbitration Award "Minimum Staffing and Filling of Vacancies" 5/12/93 Advisory Impasse Arbitration Award QUESTION FOR INTERPRETATION B. 2(a) Ability for an Engine Company to respond with a two persons. (for a period not to exceed four (4) hours) to medical aid calls and single engine alarms until a replacement can be obtained pursuant to Policy D-3 (Callback Staffing System). The Arbitrator states: "Rationale: It is the intent of the undersigned that the Parties deal with issues of "short" Companies by a reference to their own Callback Staffing Policy. Such Policy sets in place a known and understood procedure for the filling of vacancies. Since the full language of Article B requires a minimum staffing of three (3) personnel for each Fire Company, attempts to circumvent that clear language and the Callback Policy can be effectively thwarted through effective Contact administration." Questions: (1) When and how must D-3 be applied as it relates to the "period not to exceed four (4) hours". (2) When D-3 is applied, what procedures (if any) must be applied by the Fire Department, in the event that the vacancy can not be filled by the $'Battalion Chief Aide", or "the fourth member of the truck®f. . ( VQ) . t 5/12/93 Advisory Impasse Arbitration Award "Minimum Staffing and Filling of Vacancies" HBFA POSITION Page 2 POSITION OF HBFA (1) D-3 must be applied as soon as the Department is aware that there is a "temporary vacancy"; and the Department desires to continue to run/respond with the "short company". (2) The Fire Department must apply D-3 "CALL BACK STAFFING SYSTEM" in a manner, and with an intent to replace the "detached member". The Fire Department may utilize the "Battalion Chief Aide" or the "fourth member on the truck" to fill the vacated position V. In the event that the position can not be filled by this procedure, the Fire Department must utilize the "overtime call back procedure" to fill the vacant position. The "overtime call back procedure" must be utilized, regardless of the length of time the position will be vacated, or how much time remains in the four (4) hour period. t 5/12/93 Advisory Impasse Arbitration Award "Minimum Staffing and Filling of Vacancies" HBFA POSITION Page 3 5/12/93 Advisory Impasse Arbitration Award QUESTION FOR INTERPRETATION B S. Assignment to a #Special Purpose Apparatus #$with no less than two (2) personnel (one of whom must be a Fire Engineer or a Firefighter assigned/qualified as a Fire Engineer) when responding Code 3 to alarms."' See also B2(a) regarding etqualified personnel are availableve. The Arbitrator stated: "Rationale: This is consistent with the Association's concern that employees not appropriately assigned or qualified to operate apparatus be required to do so. The Job Description of the Fire Engineer indicates that indeed that Classification is the "driving." Classification of the Department. Employees performing that function should be working in that Classification or appropriately assigned. The City cannot expect to be permitted to assign non -appropriately classified personnel to job duties without incurring claims of working persons out of classification or at inappropriate compensation rates. Question: What does "qualified as a Fire Engineer" mean; and how is "qualifiedel determined. This same question is applicable, when "'qualifiede, is found elsewhere in the '$Minimum Staffingot Provision. 5/12/93 Advisory Impasse Arbitration Award "Minimum Staffing and Filling of Vacancies" HBFA POSITION Page 4 POSITIONd OF HBFA (1) "Rank for rank" basis". All positions must in the first instance be filled by an individual holding rank in that position, i.e. Fire Captain or Fire Engineer. "Rank for rank" scheduling also applies to the D-3 "CALL BACK" Procedure (includes application of V P use of "B.C. Aide", and 114th member on the truck"). (2) Utilization of a a®qualified"® Fire Engineer or Fire captain. In the event, the position can not be filled on a "rank1° basis, a "Qualified" Fire Captain or Fire Engineer shall be selected in the following priority and manner: (1) Active Promotional List The Fire Department shall fill the vacancy by selecting a "Qualified Employee" from the Active Promotional List (hold over or call back). (2) Promotional Exam Eligibility Requirements. In the event a "Promotional List Candidate" is not available, the Fire Department shall select a "Qualified Employee" from future "Promotional Candidates", who have met all the "eligibility requirements", for, the "Promotional Examination". Such "Promotional Candidates" shall furnish his/her appropriate i of_Crmat ion the FI r�e Department, to Lwiccil iylalJllc 'or 11aC4-.yiy" assignments. 1 5/12/93 Advisory Impasse Arbitration Award "Minimum_ Staffing and Filling of Vacancies" HBFA POSITION Page 5 The above procedure to select a "Qualified Employee" is consistent with long-standing established past practice. The Fire Department must follow the above "assignment procedure", so that employees who are "qualified" to perform work in a given position, are appropriately assigned to such job duties. 5/12/93 Advisory Impasse Arbitration Award "Minimum Staffing and Filling of Vacancies" HBFA POSITION Page 6 5/12/93 Advisory Arbitration Award QUESTION FOR INTERPRETATION C - Minimum Staffing of Communications The Arbitrator states that "the Parties may engage in the "meet and confer in good faith" process at either°s request. . Question: Under what circumstances, must the '$meet and confer" process be implemented? 5/12/93 Advisory Impasse Arbitration Award "Minimum Staffing and Filling of Vacancies" HBFA POSITION Page 7 POSITION OF HBFA In view of the Arbitrator's Rationale and the Arbitrator's Ruling under Issue 13 (page 16) 1160 day negotiation period", negotiations must be implemented/engaged in at the request of either party, when the following events have occurred: (1) The Joint Powers Authority ("JPA") by January 31 notifies HBFA of a decision to make staffing changes for the following Fiscal Year. (2) If either the City of HBFA requests, the parties will engage in the "Meet and Confer in Good Faith11 Process. (3) Pursuant to Section F, "the Parties shall complete the 'meet and confer' process (including any impasse procedure) within 60 days, unless otherwise extended by mutual agreement." R 19 ATTACHMENT 8 10/27/93 City Proposal to HBFA on All Outstanding Issues HBFA Proposals 1. Compensatory time off (Article VII, Section D) a). Add language to permit staff positions who do not require overtime replacement to accumulate C.T.O. with approval of Fire Chief. b). Delete language referring to exempt personnel. 2. Retirement Medical Trust Fund - maintain status quo 3. Vacation Accrual Max. (Article X,A) Agree to permit the vacation allowance to accrue to a maximum of 342 hours. 4. PERS Rollover (Article IX, B2) a). Agree to continue the PERS pickup and vacation accrual to continue through January 31, 1994. This practice will be discontinued effective February 1, 1994. b). Maintain status quo on all other retirement benefits. 5. Sick leave to Extend Industrial Leave (Article X,A2c) - maintain status quo. G. Bilingual Pay (Article V,E6) Agree to increase from $50 to 50 of salary; limited to those that utilize skill on the job; for Spanish, Vietnamese and Signing. 7. Senior Firefighter Pay - reject proposal 8. Vacation Accrual Rate (Article X,Ala) - maintain status quo 9. Educational Incentive (Article V,A) - maintain status quo 10. Assignment Pay - maintain status quo 11. Administrative Appointments - maintain status quo 12. Association Time (Article X,A5) a). Agree to allow 150 hours to be carried over b). Maintain status quo of 375 hours per contract year 13. Minimum Staffing (Article VII,H) - accept hearing officers recommendations 14. Health Insurance proposal a) . Medical Plan Changes (all medical plans) (-A-- itta 1). M.O.U. Health Insurance Amendment "Unit members shall be responsible for accurately reporting eligible additions and the removal of ineligible dependents from City health plans. Any overpaid insurance premiums by the City, resulting from an employee's failure to report such changes, shall be recovered by the City as follows: a monthly deduction in the amount of overpayment from the City's monthly contribution to the employees premium for medical, dental and vision. This deduction will continue on a monthly basis until the sum of all deductions equals the sum of overpayments. The employee shall pay the difference to the insurance company to maintain the current level of coverage. 2). Outpatient Surgery (City Health Plan) Modify benefit to pay one hundred percent (1005s) of covered expenses (anesthesia, outpatient surgery, facility use, surgeon and pre admission) after the deductible is met for PPO providers. Currently plan provides 100% coverage with no deductible. City to pay 7011 of the first $10,000 after the $150 deductible for Non-PPO. Current plan provides 80% for Non-PPO. 3). Non-PPO's (City Health Plan) Decrease the payment of non-PPO's to seventy percent (70%) of usual, customary and reasonable charges. Retain the ninety percent (90%) payment to PPO providers. However, in the event of a life threatening emergency, the plan would pay ninety percent (90%) of usual, customary and reasonable for Non-PPO providers. b). Dental cap - $99 c)• Vision cap - $12 composite rate 15. Personnel Rule 8-1 - Revision Proposal 8-1 MEDICAL EXAMINATION, EVALUATION OF EMPLOYEE'S WORK CAPACITY, DEMOTION, TRANSFER OR TERMINATION OF APPOINTMENT. The Personnel Director may require an employee to submit to a medical examination or psychological evaluation to assess the capacity of the employee to perform the work of their position. Any determination of the Personnel Director based upon the results of such evaluation shall be conducted in such a manner as to assure that the employee's due process rights are adhered to. The employee shall be entitled to all benefits legally mandated by law, i.e. workers compensation, temporary disability, reasonable accommodation (ADA), etc., in the administration of this rule. The employee demoted or transferred pursuant to this section shall receive the maximum of the salary range in the class to which demoted or transferred, provided that such salary is not greater than the salary received at the time of the demotion or transfer. 16. M.O.U. Revisions Item 2 - (Article V,D), Annual step reduction for Paramedic reassignment Item 6 - (Article VA, A), Request clarification of Associations response on Paragraph E-2 and F-3 WHO:reports/fireprop LAW OFFICE OF RICHARD J. SILBERT�'�a A PPOFESSIONAL CORPORATON 2134 MAIN STREET. SUITE 130 SEACLIFF OFFICE PARK -- -- --- HUNTINGTON BEACH. CALIFORNIA 92648 (714) 960-7646 FACSIMILE (714) 960-7640 December 21, 1993 To: City of Huntington Beach Attn: Daniel Cassidy, Esq. William Osness, Personnel Director Michael Dolder, Fire Chief From: HBFA "Manning Negotiation Committee" Richard J. Silber, HBFA Attorney Re: 5/12/93 Advisory Impasse Arbitration Award "Minimum Staffing and Filling of Vacancies" SUPPLEMENTAL RESPONSE TO 7/23/93 CITY "CLARIFICATION" COMMUNICATION During the current negotiation process the City has indicated on several occasions that it desired to close the @'Minimum staffing and Filling of Vacancies'$ contractual issue, with inclusion of the Advisory Impasse Arbitration in the HBFA MOU. HBFA responds as follows: 1. HBFA's letter with attachments indicates that three (3) determinations must be clarified, which are: interpretation/application of 11B.2(a) Response of a short Engine Company" - D-3 application; B.8 "Special Purpose Apparatus" - "Qualified Meaning" for Fire Engineer and Fire Captain; and C. "Minimum Staffing of Communication" - "Meet and Confer" obligation. Thus., HBFA requested a Response from the City to indicate if the City agreed with HBFA's interpretation of these determinations. If there is Agreement, there are no issues for clarification by Mr. Tamoush. If the City does not agree, please advise as to the City's position for each of the disputed issues. Then, I will forward to Mr. Tamoush, the "QUESTION FOR INTERPRETATION11 that I prepared, with the parties' respective positions. It must be noted that HBFA does not understand why there has not been any response to HBFA's 9/14/93 communication, since it was quite clear what must be accomplished before there was Agreement on the "Minimum Staffing" Contractual Provision. 2. The HBFA Executive Board/Manning Committee has determined that the Arbitration's Recommendation B.2(a) that would permit a "two person Engine Company" up to four (4) hours with D-3 application is incorrect/wrong and is inconsistent with long- standing Firefighting Practice. HBFA believes that a two -person Company for any length of time is inherently unsafe/represents a 93 Advisory Impasse Arbitration Award Staffing and Filling of Vacancies'° SUPPLEMENTAL RESPONSE TO 7/23/93 CITY "CLARIFICATION" COMMUNICATION Page 2 serious threat to their safety, as well as to the public the Fire Department must serve. Therefore, please be advised that the HBFA Executive Board/"Manning" Committee will not recommend to the HBFA Membership that the "two person Engine Company" be included in a City-HBFA MOU "Minimum Staffing" Provision. Accordingly, after the three (3) above -mentioned provisions are clarified by Mr. Tamoush, if the City/Fire Department still persists in its desire to implement a "two (2) person Engine Company", and the negotiation process will have been completed, the City/Fire Department will be at liberty to take unilateral action. If it does, HBFA will put the City on notice that it has created an "unsafe working condition", and will hold the City responsible ("serious and willful") in the event that any Firefighter is injured, as a member of the "two -person crew." We shall await the City's immediate response/position as to their 1 to determinations. re4po u_ Respectfully Submitted, Richard J. Silber, Attorney for HBFA cc: HBFA 1 MEMORANDUM To: Tom Faye, HBFA President From: Daniel C. Cassidy, City Negotiator Date: May 24, 1994 Re: Minimum Staffing The City of Huntington Beach has asked me to respond to your memo dated April 11, 1994. It is the City's position that this matter can be resolved in one of the two ways outlined below: A) The parties can mutually agree to accept the Arbitrator's award as submitted by Mr. Tamoush on May 12, 1993. The City is also willing to have Mr. Tamoush clarify what he meant when, he used the word "qualified" on page 12, Section B.8; or B) If the Association finds it can not accept the Arbitrator's award, the matter should be submitted to the City Council for a final decision in the Minimum Staffing Rule impasse process. History On July 20, 1992, the City and the Association entered into a multi year Memoranda of Understanding covering the period from October 1, 1990 through September 30, 1993. As a part of that agreement, the parties agreed to resolve the impasse pertaining to various proposed changes to the Minimum Staffing Rule by submitting the matter to advisory arbitration. The City and the Association submitted proposals, written and oral evidence, and final written arguments to Arbitrator Phil Tamoush. On or about May 12, 1993, Mr. Tamoush provided the parties with a written Advisory Impasse Arbitration Award. The City told the Association that it was prepared to settle the impasse by agreeing to accept the Arbitrator's award. The Association indicated that it was willing to agree provided certain questions were answered. ATTACHMENT I I 's. TO: WILLIAM OSNESS, PERSONNEL DIRECTOR FROM: TOM FAYE, HBFA PRESIDENT l DATE: APRIL 11, 1994 SUBJ: MINIMUM STAFFING/AWARD INTERPRETATION ON APRIL 7, 1994 YOU CONTACTED THE HBFA IN REFERENCE TO WHERE THE CITY AND THE ASSOCIATION WERE AND WHAT IT WOULD TAKE TO FINALIZE THE "MINIMUM STAFFING AND FILLING OF VACANCIES" IN OUR MOU. DURING THAT PHONE CONVERSATION YOU AND I AGREED THAT THE HBFA WOULD SUBMIT A LETTER TO YOUR OFFICE WITH THE THREE(3) ISSUES THAT ARE STILL IN NEED OF INTERPRETATION FROM MR. TAMOUSH. THE ISSUES ARE AS FOLLOWS: 1. INTERPRETATION/APPLICATION OF B.2(A), "RESPONSE OF A SHORT ENGINE COMPANY." 2'. QUESTION ON B.8, WHAT DOES "QUALIFIED AS A FIRE ENGINEER" MEAN AND HOW IS "QUALIFIED" DETERMINED? 3. QUESTION ON C., UNDER WHAT CIRCUMSTANCES MUST THE "MEET AND CONFER" PROCESS BE IMPLEMENTED? IN ADDITION TO SUBMITTING THIS AGREED UPON LETTER, THE HBFA ALSO FEELS THAT THE LETTERS GIVEN TO THE CITY ON SEPTEMBER 14, 1993 AND ON DECEMBER 21, 1993,(SEE ATTACHED), ARE EQUALLY AS IMPORTANT. FOR WHATEVER REASON, THE ASSOCIATION NEVER RECEIVED A REPLY FROM THE CITY ON THESE ATTACHED LETTERS, BUT WOULD ADVISE YOUR OFFICE THAT THEY ARE STILL OUR POSITION. WE LOOK FORWARD TO FINALIZING THIS PORTION OF OUR MOU AND HOPE THAT UNLIKE THE SEPTEMBER 14TH AND DECEMBER 21ST LETTERS OUR APRIL 11TH MEMO WILL ONCE AGAIN BEGIN THE PROCESS. CC. DANIEL CASSIDY MICHAEL DOLDER, FIRE CHIEF RICHARD SILBER MANNING COMMITTEE Huntington Beach Firemen's Association P ii Memo to Tom Faye May 24, 1994 Page 2 On July 13, 1993, the parties met to discuss those questions. After a lengthy discussion regarding the use of existing Policy D-3 (Call Back Staffing) to fill vacancies on Engine Companies operating with two people, the Association's spokesperson indicated there was only one issue left. That issue pertained to what the word "qualified" meant when the word was used by the Arbitrator in Section B.8., "qualified as a Fire Engineer." After much discussion on this issue, the parties agreed to jointly request that the Arbitrator tell us what he meant when he used the word "qualified" in Section B.8. On July 23, 1993, the City sent your representative, Mr. Silber, a proposed joint request letter. The one -page letter simply asked Mr. Tamoush to answer some questions regarding his use of the word "qualified" in Section B.8. on page 12 of his opinion. Those questions were: 1) Who determines who is qualified? 2) May the criteria for determining who is qualified include subjective as well as objective criteria such as a supervisor's knowledge of the individuals on the job performance and work experience? 3) If the supervisor may only use objective criteria, what other criteria may the supervisor consider beside verifying that the individual has the proper licenses or certificates or education. or has completed on the job training courses? By letter dated September 14, 1993, your representative, Mr.Silber, ignored the Association's prior agreement to only seek clarification on the one issue regarding the use of the word "qualified" and asked that the City agree to submit to the Arbitrator all questions previously raised by the Association or to have a new hearing on these issues. During negotiations for a successor Memorandum of Understanding, the City informed your representatives that neither of these positions was acceptable. The City, at all times during the 1993-94 meet and confer process, proposed that the parties agree to accept the Arbitrator's decision regarding Minimum Staffing. By letter dated December 21, 1993, Mr. Silber informed the City that the Association will not agree to the Arbitrator's recommendation that would permit a "two person Engine Company" to remain in service on a limited basis for no more than four hours. The letter alleged that a two person Engine Company is unsafe under any circumstance. This allegation was not based on any evidence and was an issue previously presented by the Association during the arbitration. The Arbitrator, after considering the evidence presented by both parties, rejected the Association's position. 0 Memo to Tom Faye May 24, 1994 Page 3 Conclusion The City believes it is time to bring closure to the Minimum Staffing impasse. The negotiation process, including authorized impasse procedures, has been completed. As mentioned above, to reach agreement, the City is willing to accept the Arbitrator's award and ask for clarification on his use of the word "qualified". If agreement is not possible, the City's representatives are prepared to ask the City Council to take action to bring closure to the impasse process. Please advise me, at your earliest convenience, whether or not you can accept the Arbitrator's award as outlined in paragraph A or whether under the circumstances, you do so and the matter will then be submitted to the City Council for action to bring closure to the impasse process. cc: Richard Silber William Osness Chief Dolder DCC:gIc. misc#28\cassidy\fayememo.524 ATTACHMENT 12 LAW OFFICE OF RICHARD J. SILBER A PPOFESSIONAL CORPORATON 2134 MAIN STREET. SUITE 130 SEACLIFF OFFICE PARK HUNTINGTON BEACH CALIFORNIA 92648 (714) 960-7646 FACSIMILE (714) 960-7640 July 11, 1994 To: City of Huntington Beach Attn: Daniel Cassidy, Esq. William Osness, Personnel Director Michael Dolder, Fire Chief From: Richard J. Silber, HBFA Attorney Re: 5/12/93 Advisory impasse arbitration Award Response to Memo Dated 5/24/94 HBFA has requested that I respond to Mr. Cassidy's Memorandum, dated 5/24. In response thereto, please be advised as follows: 1. As you are aware, I was out of my office on vacation (Scotland), and then became ill with pneumonia. Therefore I was unable to respond prior to this time; and I extent my apology. 2. Mr. Tom Fay HBFA President and I have carefully reviewed Mr. Cassidy's 5/24/94 Memorandum. It is our intent to review its content with the HBFA "Minimum Manning Committee". In view of my unavailability, this could not be accomplished at an earlier date; however we expect to meet shortly. I shall submit to the; City/Daniel Cassidy, HBFA's Response/Position to Mr. Cassidy's 5/24/94 Memo, following our meeting. 3. In view of HBFA's 9/14/93 position and "Questions for Interpretation" to be submitted to Mr. Tamoush, please advise HBFA how the City can limit Mr. Tamoush, to only clarify the word' "qualify" on pg. 12, Section D.8. Please also advise HBFA as to how, the 11EER11, Section 9 Impasse (C) "Advisory Arbitration" grants authority to the City council to render "a final decision" in the; Minimum Staffing Impasse Process. Please be advised that we do not read/interpret the Advisory Arbitration Impasse Procedure in the; same matter- after Advisory Arbitration Recommendations have been, received by the parties. i We would appreciate your response to the above as soon as possible. Thank you for you courtesy and cooperation. cc: HBFA Respectfully Submitted, Si / er HBFA Att ey To: From: Date: Subject: City of Huntington Beach Inter -Department Communication Thomas A. Faye, Huntington Beach Firefighters Association President Michael P. Dolder, Fire Chief August 30, 1994 MEET AND CONFER REGARDING MINIMUM STAFFING Background The issue of Minimum Staffing was raised during the Huntington Beach Firefighters Association (HBFA) 1989-1992 contract negotiations. On request of the HBFA, the City agreed to meet separately on the Minimum Staffing language during the Impasse phase of the 1989-1992 negotiations. As a result of the separate impasse hearing, the Hearing Officer made a decision on Minimum Staffing (Exhibit 1). After the decision, the City and the Association met and attempted to clarify the decision and reach agreement. No agreement was reached. Subsequently, the City attempted to join the Hearing Officer's decision to the 1993 contract negotiations. However, the Association objected to joining the issue saying that minimum staffing was separate and was to be handled with a separate negotiating team. The issue of minimum staffing is therefore being presented to the Association as a separate issue. Issue Since the City and the Association cannot agree on the definition of qualified and the Association feels that the Hearing Officer's decision on Part B 2. (a) of Exhibit 1 is not acceptable, the City of Huntington Beach proposes the following before proceeding with unilateral implementation of the Hearing Officer's Minimum Staffing decision. Proposal 1. Accept and sign off on the Hearing Officer's decision (Exhibit 1) excluding Part B 2 (a), and 2. Continue with the 1989-1992 contract language contained in Article VII Section H (Exhibit 2, Minimum Manning and Filling of Vacancies) specifically in Part l.b.1) and 2) in place of Exhibit 1's Part B.2(a) language while negotiations proceed. MPD/cgs Wexecutive/mp d 161. doe Attachments EXHIBIT 1 SECTION. VH(H) MINIMUM'STAFFING AND FILLING ,OF VACANCIES .A: DEFINITIONS For purposes of this Article the following definitions are hereby- established: 1. APPARATUS shall be defined as -any vehicle utilized to, respond to fires, other emergencies or work assignments which requires a California Class A, Class B, or Class B firefighter restrictive driver's license. - (a) A FIRE. ENGINE is an apparatus with fire pump, fire hose, water tank, ground ladders, necessary firefighting equipment,- and may include a "telesquirt" type ladder, but specifically excluding aerial ladder or platform capabilities. (b) A FIRE TRUCK is an apparatus that has mounted on the chassis, an aerial ladder or aerial platform, "TRUCK -COMPANY" equipment, and may include a fire pump, fire hose, and water tank. (c) A HAZARDOUS MATERIALS -(HAZ MAT) UNIT is an apparatus which has tools. and equipment -used •in the mitigation of Hazardous Materials incidents. -(d) A PARAMEDIC ENGINE, or a PARAMEDIC ASSESSMENT ENGINE is a Fire, Engine that carries Advanced Life Support equipment. {ej A PARAMEDkC UNIT -is any Fire Department.vehicle; other than a Fire Engine or Fire .Truck, that carries Advanced Life Support equipment, (f) A SPECIAL PURPOSE APPARATUS is apparatus (as described in No. 1 above), not otherwise defined in this Article and utilized for response to. alarms: • 2. _ A FIRE COMPANY is a firefighting force commanded by a single Fire Captain (or a. person assigned/qualified as such). 3.1 IN-SERVICE shall be defined as personnel, apparatus; and/or *equipment which lare available' for dispatch to an alarm or actively: involved in an Vlarm. i 1 1 The .CITY shall cause apparatus to be staffed with sufficient personnel to assure the safety of employees and the control of risk. For these purposes, the minimum staffing shall be as follows: 1. Each Fire Company shall be staffed with a minimum -of three (3) personnel and may be assigned various firefighting or other emergency related activities as well as routine duties: Fire B A162193 Companies are generally assigned as Engine Companieol or Truck Companies when they operate, with .: a Fire Engine or FireTruck apparatus. They may, however, operate without apparatus or with more ' than one (1)-vehicle or apparatus. When operating with more than -one (1) vehicle or apparatus.-Ahe%:=,,, minimum staffing requirements of this Section shall be required when the vehicle- "is operated'bn ari -,, >: .incident scene. Apparatus responding Code 3 shall be staffed with 'a minimum of two (2) 2. Each in-service Engine Company shall be staffed with no less than one (1) Fire Captain, .one (1) Fite Engineer, and one (1) Firefighter. Any member may be.•a Paramedic. - (a) In the event that a member is temporarily detached from a Company,and where . . -qualified personnel are available, the Company may continue to respond:(for.a period not -to exceed four (4) hours) to medical -aid calls and single engine alarms until a replacement can be -obtained pursuant to Policy D-3, (Callback Staffing System). A- second fully staffed engf ne shall, be dispatched -Code 2 = whenevera two .(2) person .conian nds. 4 .3. Each in-service Truck Company shall be staffed with no less than one (1) Fire Captain, one (1) Axe Engineer and 'iwo (2) Firefighters. Any membermay-be a Paramedic: 4. Each in service Paramedic. Unit shall be staffed with 'no less than two (2) certified Paramedics. 5. Each in-service,Paramedic Engine Company shall be staffed with no less than one (1) Fire Captain,, one, (1) Fire Engineer, and two (2) Firefighters. Two (2) of the members must be certified Paramedics — Each 6. Each in-service -Paramedic Assessment Engine Company shall be staffed with no less than one (1) Fire Captain;, one, (1) Fire Engineer, and one (1) Firefighter. One (1). of the members must be a-. certified. Paramedic: " 7. Each in service hazardous Materials apparatus shall :be. -staffed with a Fire Company of `. which the regularly assigned personnel _ shall be specially trained in Hazardous Materials incident practices and procedures in accordance with Article VHI, Section D, Part 5 of the Fire MOLT. One or - pore_of the personnel staffing the hazardous Materials apparatus may be assigned as -technical advisors to an emergency's Incidetit.Commander. When this occurs; the remaining personnel may be reassigned to other _ companies involved in ' the incident including the Newport Beach_, Haz Mat Team or other Hazardous Materials Joint Powers Authority providers. S. . _ ` Special Purpose Apparatus shall be staffed with no less than.- one. (1) person a (Fire Engineer or Firefighter assigned/qualified as such) when responding Code 2 and with no less than two (2) personnel (one of whom ' must be a Fire- Engineer or a Firefighter assigned/qualified as a Fire: ` Engineer) when responding Code 3 to alarms. , 9. Fire apparatus not, considered to be in service shall not be required to have personnel assigned. to them for the purposes of this. Article. , 10. The minimum staffing as set forth in this Article, shall be specifically and exclusively from Public Safety. -employees of the Huntington Beach Fire Department for all, routine activities and normal shift duties. Reserve Firefighters shall not be"used to meet minimum staffing levels. B IW62193 2 (a) No employee shall be assigned to more than one (1) Fire Company at the same time for all routine activities, and normal shift duties. (b) Routine activities; and normal shift -duties shall include those emergehcies `that fh .,would normally be handled by the on -duty suppression force..' I L . No language need be adopted here. 12. - ; No language is needed here:. C. IVIEVE%IUM,STAFFRqG OF CO CATIONS - There shall be ' at ` least three _(3) Fire "'Controllers on duty at all times consisting of any '_ ° combination of Fiiv Controllers or Fire Controller -Shift Supervisors. The ASSOCIATION.'shall-be notified yearly by January 31 regarding staffing changesfor the following fiscal year. If a Management decision is madg to make staffing changes- the Parties may engage in the "Meet and Confer in good faith" process at either's request. Such .negotiations shall be controlled by the timelines of Section F. below. D. MLING OF VACANCIES 1. - Employees acting in a Higher classification, when properly qualified, shall be considered equivalent to the required classification: (a) Employees. acting in a higher classification shall be paid acting pay for all time worked in the -higher class whenthe time; cumulatively exceeds two (2) hours within one (1), 24 hour shift. - Acting pay will be calculated based on the step range of the higher classification which provides at least a five percent range differential. For example, a Firefighter at E step who is qualified and acts as an Engineer will be compensated at the hourly rate of a D step Engineer which is equal to or greater than a five percent differential. _ 2. Any employee assigned .to serve in the capacity of Battalion Chief s Aide, shall not be' utilized to satisfy any of the minimum staffing requirements except 'as set forth in this Article. The BC's Aide may be utilized to fill a position for .which he/she is qualified to serve in cases of temporary fill-in of four (4) hours or less. 3. Either one (1) Firefighter or one (1) "Firefighter Paramedic assigned to a Truck Company may be utilized for special assignments for a period not to exceed four (4) hours. 4. - REPLACEMENT CALLBACK. When a vacancy exists on any apparatus the Department will be obligated to.meet minimum staffmg obligations of this Article by use of off duty personnel on an overtime basis. In the event an apparatus is placed out of service, those persons previously assigned thereto may be utilized to fill any vacancy prior to the use of off duty personnel on an overtime basis. . , 5. When a vacancy exists on any apparatus, the vacancy shall be filled rank for rank based upon the .provisions of the Fire Department Policy D-3 (Qallback Staffing System). B. fn162193 3 E. NEW EQUIPMENT 1. If the City makes a managerial decision to change staffing levels provided for in the MOU; or to utilize any new apparatus over and above that presently in use, the City and Association _ shall Meet and Confer in good faith prior to such action being implemented. 2. The Meet and. -Confer- process/obligation shall apply, to any managerial decision_ to eliminate any paramedic units)/van(s).. ' F. CHANGES IN STAFFING If the Meet and Confer is requested by either parry, as indicated in the two (2) special Sections -above, (Eire Controlled and New Equipment/Changes in Staffing), the Parties. shall complete the .process. -(including any impasse procedure) within 60 days, unless otherwise extended. by mutual agreement. A t EXHIBIT 2 H. Minimum Manning and Filling of Vacancies 1. Minimum Planning Levels - The CITY shall cause apparatus to be manned with sufficient manpower to assure the safety of employees and the control of risk. For these purposes, the minimum manning of apparatus shall be as follows: a. Each engine company shall be manned with no less than one (1) Fire Captain, one (1) Fire Engineer, and one (1) Firefighter or Firefighter Paramedic. -20- WPADSERP:108 b. When two—piece companies are utilized by the department, the second unit shall be manned by at least one (1) Fire Captain and one (1) Fire Engineer. 1) Two—piece companies shall respond to structure fires as one unit and not be considered as separate engines for response purposes. 2) The second unit shall only respond by itself on single engine alarms; i.e., trash fires, vehicle fires and medical aids. —21- WPADSERP:108 5406 ATTACHMENT 14 October 10, 1994 TO: CITY OF HUNTINGTON BEACH MAYOR AND MEMBERS OF THE CITY COUNCIL MICHAEL DOLDER, FIRE CHIEF WILLIAM OSNESS, PERSONNEL DIRECTOR Daniel Cassidy, Esq. FROM: HBFA TOM FAYE, HBFA PRESIDENT RICHARD J. SILBER, HBFA ATTORNEY RE: "ARTICLE 4 - MINIMUM STAFFING AND FILLING OF VACANCIES" NEGOTIATIONS/"MEET AND CONFER" PROCESS RESPONSE TO OCTOBER 5, 1994 COMMUNICATION FROM FIRt CHIEF - "NOTICE OF CITY COUNCIL CONSIDERATION OF NEGOTIATION RESULTS AND IMPASSE RULING ON MINIMUM STAFFING AND FILLING OF VACANCIES AND RECOMMENDATION TO ADOPT A RESOLUTION UNILATERALLY ADOPTING THE HEARING OFFICER'S MINIMUM STAFFING LANGUAGE AS PART OF HUNTINGTON BEACH FIRE DEPARTMENT POLICY D-14" PLEASE SEE ATTACHED 1 Huntington Beach Firemen's Association P.O. Box 694• Huntington Beach • California 92648 V6/£Z/80 AaN HOSZV/lNaGISaHd/Va9H KOHd V6/TT/LO AaNHOlIV/Va9H WOHd V6/VZ/50 AHNUOIIV/AlIO Noud V6/TT/VO INaGISaUd/KdgH WOHd £6/TZ/ZT AaNHOlIV/VdgH WOHd £6/fiT/60 AaNUOlIV/VdgH WOHd £6/£Z/LO AaNHolly/AZIO No-da £6/ZT/LO AHNHOIIV/Va9H KOHd alVIZOOStd OS SSdfl0aH I QHFIMV dSSKdWI AJIUVI0 OZ a0NaGNOdSdHHOO VagH - MIO IV (, 3'IOISHV) SdIDNVZ)VA dO DNI'IrIId £6/ZT/5 UNV DNII NVN KfIWINIW 'NOIIVHIIUUV dSSKdWI £ DNINIVDHV9 dO ddOOS aHs NIHZIM SHaIIVK 'I'IV HdAO HSIKd 0000 HI HaaNOO UMV 12laKu /aIVIlODaN V6/OT/01 OS NOISXOI'ZSO uKSWKu S i ASIO : SISArIVNV 'IK93'I Z V6/9/OT GaIVG V6/OT/OT 'NOIIVDINfIW14O0 S a aHIHO HHId OZ dSNOdSaU KdgH T nva xonaivossa MR—M SINHHHOMMMY NOISOK UVHalVgINa 'IIDNf1OO ASIO HOd aDISON - JaIHO allIa WOHd NOISKOINf]WOO V66T 'S HdgOIDO OS dSNOdSdH SSaDOHd uHEENOO GNV ZSSidu/SHOIsVISOoaH e&S2fIZ)NV0VA dO DNI'I'IId umv DNiaavLS WfIWINIW - V d'IOIIHVII Minimum Manning - Article 4 Response to Fire Chief's Communication Dated 10/5/94 Page 2 In Response to the above mentioned 10/5/94 Memo to recommend unilateral action by the City Council, to amend the existing "Manning/Staffing" Policy as reflected by the City-HBFA MOU, "ARTICLE 4 - MINIMUM STAFFING AND FILLING OF VACANCIES'®, it is the considered Position of HBFA that such action, concerning a matter within the scope of the MMBA/EER Negotiation/Process will constitute a #'per sell violation of the City/s 11meet and confer@® obligation, as well as the City Council's obligation to give ®'reasonable written notice01 and the opportunity to meet/provide a hearing before the City Council, before any action is taken. (MMBA- Govt. Code Sec.3504.5, Sec.3505: EER- Secs. 3,8,and 9). Therefore, if the City Council implements such unilateral action, as recommended by Fire Chief Dolder, such action will be unlawful/invalid/null and void. The Chronology of Events/"EER" Discussion set forth below, and the attached "LEGAL ANALYSIS OF 'IMEET AND CONFER IN GOOD FAITH OBLIGATION" clearly establishes the impropriety of the Proposed City Council Action, to unilaterally implement a change in the existing MOU "Minimum Manning/Staffing" Requirements. 1. The City Council has not complied with the Gov. Code 3504.5 requirement of 11reasonable written notice®® and an "opportunity to be heard" concerning 91matters within the scope of representation". Furthermore, essential HBFA Representatives will not be available on 10/17/94. These include Tom Faye, who is away on a scheduled trip from 10/9-10/19/94; John Weddle, who is attending a Fire Department Class at the Asilomar; and Tim Greaves, who is attending a special PERS Briefing. Therefore, the City Council will be in violation of the MMBA "reasonable notice"/meeting requirement, if it imposes the Recommended "Minimum Staffing" Unilateral Action - an unlawful/invalid/null and void action, that will be set aside by Judicial Action. 2. The Proposed adoption of a 11MINIMUM STAFFING POLICY AND FILLING OF VACANCIES111 for inclusion in the Fire Department ORGANIZATIONAL MANUAL constitutes a gross/Ilper sell violation of the current City-HBFA MOU, Art.4 - Minimum Staffing And Filling Of Vacancies, as well as the mandatory negotiation/"meet and confer in good faith process1l. a. Since "minimum Manning/Staffing01 requirements have always been incorporated in the City-HBFA MOU, and changes thereto must also be incorporated in the HBFA MOU, the City/Fire Department is precluded from unilaterally establishing a "Minimum Staffing Levels01 Policy in the Fire Department Organizational Manual. The City/Fire Department may not unilaterally change a "condition of employment" within the scope of representation/"meet and confer" process, by converting such MOU "condition of employment" to a Fire Department Policy matter "to maintain the staffing levels set forth herein". Such unilateral action to eliminate a "condition of Minimum Manning - Article 4 Response to Fire Chief's Communication Dated 10/5/94 Page 3 employment", constitutes a "per se" violation of the HBFA MOU and the City's MMBA "meet and confer in good faith" obligation, and will be set aside as an unlawful/invalid/null and void action by Judicial Action. b. As indicated by the attached "Meet and Confer Legal Analysis", the City "EER" expressly provides: (1) That the EER Impasse Process is an integral component of the negotiation/"meet and confer" process; and (2) That there be no change in a "condition of employment within the scope of representation", except by means of Memoranda of Agreement signed by "such recognized employee organization and the Personnel Director, and approved by the City Council". Therefore, the City Council is precluded from unilaterally changing a MOU "condition of employment", by incorporating such "Manning/staffing Levels" in the Fire Department Organizational- Manual. Accordingly, such unilateral action will constitute a "per se" violation of the HBFA MOU and the City's MMBA "meet and confer in good faith" obligation, and will be set aside as an unlawful/invalid/null and void action. c. Arbitrator Phillip Tamoush issued his advisory Arbitration "Minimum Staffing Impasse" Award on 5/12/93. The Award was not implemented by the City and HBFA for incorporation in the City-HBFA MOO. Instead, the City-HBFA "Minimum Manning/Staffing" Negotiation/"Meet And Confer In Good Faith"/Impasse Process has not been completed. Instead the negotiation/"meet and confer" process is currently in process/on-going. Therefore, the City Council/Fire Department is precluded from unilaterally changing a MOO ®:condition of employment", by incorporating "Manning/Staffing Levels" in the Fire Department Organizational Manual. Accordingly, such unilateral action will constitute a "per se" violation of the HBFA MOO and the City's MMBA "meet and confer in good faith " obligation, and will be set aside as an unlawful/invalid/null and void action. (1) Commencing 7/12/93, HBFA has sought to obtain clarification of certain rulings of the Impasse Award by obtaining the City's Position, and submitting the Parties' respective Positions to Mr. Tamoush for his rulings/clarification. These issues/rulings concern B2 - "two person short Company"; B8 - "Special Purposes Apparatus" - "Qualified" determination found here and elsewhere in the Award: and C - "Minimum Staffing of Communications". City Officials/Representatives have not cooperated with HBFA to state in writing the City's Position, or to jointly submit these issues/rulings to Mr. Tamoush (with the City's Position) for his clarification. Therefore, the City/Fire Department is precluded from imposing unilateral action. (2) Commencing on or about 7/21/94, as a result of the City/Fire Department's 1994-95 Fire Department Proposed Budget Cut/"Paramedic Engine/Personnel Reduction Concept", the 11 Minimum Minimum Manning - Article 4 Response to Fire Chief's Communication Dated 10/5/94 Page 4 Manning/Staffing" Negotiation/e'Meet and Confer" Process was resumed. The City's Proposal changed the dynamics of the "Manning/Staffing" Negotiation, and rendered the 5/12/93 "Minimum Staffing" Award (not previously implemented) obsolete/not relevant at this time. On 9/26/94, the City Council voted not to reduce the Fire Department Budget by $410,000 (only the non -filled Storekeeper Position ($45,000) was cut from the Fire Department Budget), and rejected implementation of the Proposed "Paramedic Engine/Personnel Reduction Concept". The Council also directed the Fire Chief to prepare and submit a Proposed Comprehensive Fire/Paramedic Delivery System. In view of the City/Council actions commencing 7/21/94 concerning "Minimum Manning/Staffing", the City has reopened the negotiation/"meet and confer" process concerning this matter, which HBFA will respond to - will submit a complete/comprehensive "Minimum Manning/Staffing" Proposal to the City. The Impasse Award that permits a two (2) person Company for up to two (2) hours (replacement pursuant to Department Policy D-3) is unacceptable to HBFA (will not agree to include in a MOU), and is in conflict with Council Action of 9/26/94, which prohibits any reduction of daily personnel of duty. Since the two (2) person Engine Company will reduce the daily "manning/staffing" (even for up to four hours) , such "manning/staffing" reduction is in conflict with the 9/26/94 Council action - prohibits cuts in the Fire Service (personnel on duty). Therefore, the City Council should not engage in unilateral action that will result in a reduction of "manning/staffing" on a daily basis, for up to four (4) hours. Such Proposed Action is in conflict with the 9/26/94 Council 9/26/94 Action, and will adversely impact the safety of Fire Department Personnel (and the public). Accordingly, such two (2) person Company is wholly unacceptable to HBFA - will not agree to incorporate in a City-HBFA MOU. Respectfully subiij�tted, L Richard J (,Silber, HBFA Attorney cc w m 0 U N VJ 00 sQ 0 Er 1 2 3 4 5 6 7', 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICES OF RICHARD J. SILBER A Professional Corporation 2134 Main Street, Suite 130 Huntington Beach, CA 92648 Telephone: (714) 960-7646 Attorney for HBFA CITY OF HUNTINGTON BEACH CITY OF HUNTINGTON BEACH Employer, and HUNTINGTON BEACH FIREFIGHTER'S ASSOCIATION Employee Association LEGAL ANALYSIS: CITY'S "MMBA" OBLIGATION TO NEGOTIATE/"MEET AND CONFER IN GOOD FAITH" OVER ALL MATTERS WITHIN THE SCOPE OF BARGAININ Ir w m LLJ m � 00 gQ U rr 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS PAGES TABLE OF CONTENTS ...... ................................ i-iii TABLE OF AUTHORITIES .............. ...................iv-v I. STATE PUBLIC POLICY; 11MMBA1' "MEET AND CONFER IN GOOD FAITH" OBLIGATION; SALARY AND WAGE DEDUCTIONS - HEALTH INSURANCE.........................................1 A. MEYERS-MILIAS-BROWN ACT ("MMBA")....................1 B. CITY EMPLOYER -EMPLOYEE RESOLUTION (11EER11)........... 3 II. LEGAL ANALYSIS OF "MMBA" "MEET AND CONFER IN GOOD FAITH" OBLIGATION......................................7 A. A PUBLIC SAFETY AGENCY MUST NEGOTIATE/"MEET AND CONFER IN GOOD FAITH" OVER ALL MATTERS WITHIN THE SCOPE OF BARGAINING- THE FEDERAL NLRA IS REFERRED TO FOR DETERMINATION OF "MMBA" BARGAINING REQUIREMENTS ........ 7 1. In IAFF Local 1186 v. City of Vallejo, the State Supreme Court determined the scope of bargaining of both the City Charter and the 11MMBA11 ........................7 2. In San Joaquin County Employees Assn. v. San Joaquin County, the Court of Appeals held that the t1MMBA11 required a public employer to negotiate over the issues ofretroactive pay increases ...........................8 3. In Glendale City Employees Assn., Inc. v. City of Glendale, the State High Court held that an approved MOU was a valid and binding Labor -Management Agreement ..... 9 4. In Huntington Beach Police Officers' Assn. v. Cit of Huntington Beach, the Court held that the City could not justify its refusal to bargain over a change in work schedules for Police personnel on the basis of management rights language contained in an t1EER11 adopted by the City Council................................................10 B. UNILATERAL ADOPTION OF A "TERM AND CONDITION OF EMPLOYMENT" IS SUBJECT TO THE MANDATORY "MMBA" "MEET AND CONFER" REQUIREMENT. THEREFORE, THE UNILATERAL ADOPTION OF SUCH POLICY IS A "PER SE11 VIOLATION OF THE "MEET AND CONFER" DUTY, AND IS INVALID/NULL AND VOID.............13 i 1 2 3 4 5 6 7 8 9 10 11 12 m 13 oCn 14 op sQ 15 Cl 16 17 18 19, 20 21 22 23 24 25 26 27 28 PAGES 1. The scope of representation/negotiations under the "MMBA" includes t1all matters relating to employment conditions of employer -employee relations, but not limited to wages, hours, and other terms and conditions of employment." Bargaining requirements of the NLRA and cases interpreting them could be properly referred to in interpreting the scope of bargaining under the MMBA....13 2. "The obligation, in proper cases, to 'meet and confer' promptly upon request, is absolute. Negotiation is required not only concerning wages and hours, but also concerning 'other terms and conditions of employment' which may have no effect on the budget"................13 3. Proposed amendments to Personnel Rules are within the scope of the "meet and confer" obligation; unilateral adoption of a Personnel Policy is void for failure to comply with the "MMBA" "meet -and confer" requirement...13 4. A public agency must "meet and confer" over Civil Service Rules; and such requirement is separate/distinct from the Public Hearing requirement of Gov. Code Sec. 3504.5; such Civil Service Rule need not be budget- related................................................14 5. A unilateral change in a "condition of employment" concerning a mandatory subject of bargaining constitutes a "per se" violation of the "meet and confer in good faith" duty...................................................14 6. When "good faith" Negotiations result in a bona fide "Impasse"/"genuine deadlock" in Negotiations, the employer may take "unilateral action" to implement such proposed change in "conditions of employment" .......... 14-15 7. An employer must bargain about plant rules which directly affect conditions of employment - includes such matters as employee intoxication, violent or disorderly conduct................................................15 8. An employer violates the duty to 'bargain in good faith', "by failing to consult with the certified union before unilaterally adopting certain work rules." .......................................................15 9. "Alcohol and drug testing" is a negotiable subject of bargaining/and is not waived, when not mentioned/ discussed during negotiations ..........................15 ii 1 2 3 4 5 6 7 8 9 10 11 12 Ir m 13 LL -J O Cn cn 14 O ❑ sQ 15 16 17 18 19. 20 21 22 23 24 25 26 27 28 1 PAGES 10. "Physical testing/medical screening" is a mandatory subject of bargaining - includes whether "such tests will be used to screen out, reject, or deny employment" ..... 15 11. A "drug testing" order, or medical exam is subject to the "MMBA" "meet and confer" requirement...............15-16 12. A Personnel Policy/Rule is a "term and condition of employment" that is within the "scope of representation" and is subject to the "MMBA" mandatory "meet and confer" requirements. "Unilateral adoption of such Rule without prior notice to or 'meeting and conferring' with the Union was void in its entirety for procedural violation of Gov. Code Sec. 350511 ................................17 13. In San Joaquin Employees Assn. v. City of Stockton, the Court held that during Negotiations prior to Impasse, a public employer may not unilaterally change "conditions of employment"/insurance benefits specified in an expiredAgreement......................................17-18 14. In Santa Clara County Counsel Attorneys Assn. v. Woodside, the State Court held that: ................... 19 15. Withholding benefits from one group of employees whose representatives continue to engage in the Negotiation/Impasse Process but who have not settled, when such benefits have been granted to other group(s) of employees who have settled, constitutes discrimination/ punishment for engaging in "protected activities", including the "meet and confer" process................20 a. In Campbell Municipal Employees Assn. v. City of Campbell, the Court said: .............................. 20 b. In Los Angeles County Employees Assn. Local 660 v. County of Los Angeles, the Court said: ................. 22 iii 1 2 3 4 5 6 7 8 9 10 11 12 Ir m 13 0 14 op sQ 15 2 Cc 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES PAGES Campbell Municipal Employees' Assn. v. City of Campbell, 131 Cal.App.3d 416; 182 Cal.Rptr. 461....................20-21 Dublin FF Local 1885 v. V. Comm. Sere. Dist., 45 Cal.App.3d(2/06/75)..................................13 East Bay Mun. Employees Union v. County of Alameda, 3 Cal.App.3d 578; 83 Cal.Rptr. 503.......................9-10 Glendale City Employees' Assn., Inc. v. City of Glendale, 15 Cal.3d 328, 386; 124 Cal.Rptr. 513 (1975).............9-10 19 Holliday v. City of Modesto, 229 Cal.App.3d 528, 540; 280 Cal.Rptr. 206(1991)..................................16,20 Huntington Beach Police Officers Assn. v. City of Huntington Beach, 58 Cal.App.3d 492; 129 Cal.Rptr. 893 (5/18/76)................................................10-12 IAFF Local 1186 v. City of Vallejo, 12 Cal.3d 608; 116 Cal.Rptr. 507, 512-513(10/02/74)....................7-8 Intl. Assn. of Firefighters Union v. City of Pleasanton, 56 Cal.App.3d 959, 976; 129 Cal.Rptr. 68, 80 (1976)...... 13-14 Johnson -Bateman Co., 295 NLRB No. 26; 131 LRRM 1393 (6/15/89)................................................15,16 Lockheed Shipbuilding, 273 NLRB No. 25, 118; LRRM 1284 (12/10/84)...............................................15,16 Los Angeles Civil Serv. v. Sup. Ct., 74 Cal.App.3d 1.....14 Los Angeles County Emp. Assn. Local 660 v. County of Los Angeles, 168 Cal.App.3d 683, 689; 214 Cal.Rptr. 350, 353.22-23 Los Angeles County FF Local 1014 v. City of Monrovia, 24 Cal.App.3d 288(3/22/72)..............................13 Miller Brewing Co., 166 NLRB No. 90; 65 LRRM 1649 (7/20/67)................................................15 NLRB v. Katz, 369 U.S. 756; 50 LRRM 2177 (1977)..........13 NLRB v. Tex -Tan, 318 F2d 472; 53 LRRM 2298 (1963)........ 14-15* iv 1 2 3 4 5 6 7 8 9 10 11 12 rr m 13 0 - 14 op gQ 15 2 Cl 16 17 18 19 20 21 22 23 24 25 26 27 28 1 CASES PAGES Peerless Publication, 231 NLRB No. 15; 95 LRRM 1611 (8/9/77).................................................15 1Public Employees Assn. v. Board of Supervisors, 167 Cal.App. 797, 806-807; 213 Cal.Rptr. 491 (1985)...................16 San Joaquin County Employees Assn. v. San Joaquin County 39 Cal.App.3d 83; 113 Cal.Rptr. 912 (1974)...............8-9 ISan Joaquin County Employees Assn. v. City of Stockton, Cal.App.3d 813, 818-819; 207 Cal.Rptr. 876...............17-19 Santa Clara County Counsel Attys. Assn. v. Woodside, .Cal.—; 28 Cal.Rptr. 617(3/31/94)...................19-20 Social Services Union v. County of San Diego, 158 Cal.App.3d 1126; 205 Cal.Rptr. 325...................23 TIT v. Great Dane Trailers, 3888 U.S. 26; 87 S.Ct. 1792; 18 L.Ed.2d 1027(1967)...................................21 Tiidee Products, Inc., 176 NLRB No. 133; 72 LRRM 1199 (6/24/69)................................................15 Vernon Firefighters v. City of Vernon, 107 Cal.App.3d 352; 165 Cal.Rptr. 908(7/21/80)..............................17 STATUTES Meyers-Milias-Brown Act (MMBA) Government Code Section 3500, et seq.....................1 Government Code Section 3506 .............................18 National Labor Relations Act (NLRA)......................13 CITY PERSONNEL RULES/RESOLUTIONS Resolution No. 3335......................................2 Resolution No. 3461......................................2 v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21' 22 23 24 25 26 27 28 I. STATE PUBLIC POLICY "MMBA" "MEET AND CONFER IN GOOD FAITH91 OBLIGATION A. MEYERS-MILIAS-BROWN ACT (96MMBA11, Gov. Code Sec. 3500, et seq) 3500. Purpose and Intent It is the purpose of this chapter to promote full communication between public employers and their employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment between public employers and public employee organizations. It is also the purpose of this chapter to promote the improvement of Personnel management and Employer -Employee relations within the various public agencies in the State of California by providing a uniform basis for recognizing the right of public employees to join organizations of their own -choice and be represented by such organizations in their employment relationship with public agencies... 3503. Right to Representation Recognized employee organizations shall have the right to represent their members in their employment relations with public agencies... 3504. Scope of Representation The scope of representation shall include all matters relating to employment conditions and Employer -Employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment... 3504.5 Notice Relating to Matters Within the Scope of Representation; Meeting; Emergencies Except in cases of emergency as provided in this section, the governing body of a public agency, and boards and commissions designated by law or by such governing body, shall give reasonable written notice to each recognized employee organization affected of any ordinance, rule, resolution, or regulation directly relating to matters within the scope of representation proposed to be adopted by the governing body or such boards and commissions and shall give such recognized employee organization the opportunity to meet with the governing body... 3505. Meet and Confer in Good Faith The governing body of a public agency ... or other 1 2 3 4 5 6 7 8 9 10 11 12 a m 13 O U LL)^ En 14 O ❑ sQ 15 Ir 16 17 18 19. 20 21 22 23 24 25 26 27 28 representatives ...shall meet and confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of such recognized employee organizations ... and shall consider fully such presentations as are made by the employee organization on behalf of its members prior to arriving at a determination of policy or course of action. 91Meet and confer in good faith" means that a public agency, or such representatives as it may designate, and representatives of recognized employee organizations, shall have the mutual obligation personally to ®meet and confer' promptly upon request by either party and continue for a reasonable period of time in order to exchange freely information, opinions, and Proposals, and to endeavor to reach agreement on matters within the scope of representation prior to the adoption by the public agency of its Final Budget for the ensuing year. The process should include adequate time for the resolution of Impasses where specific procedures for such resolution are contained in Local Rule, Regulation, or ordinance, or where such procedures are utilized by mutual consent. 3505.1 Memorandum of Agreement If agreement is reached by the representatives of the public agency and a recognized employee organization or recognized employee organizations, they shall jointly prepare a written Memorandum of such Understanding, which shall not be binding, and present it to the governing body or its statutory representative for determination. 3505.2 Mediation If after a reasonable period of time, representatives of the public agency and the recognized employee organization fail to reach agreement, the public agency and the recognized employee organization or recognized employee organizations together may agree upon the appointment of a Mediator mutually agreeable to the parties... 3506. Discrimination Prohibited Public agencies and employee organizations shall not interfere with, restrain, coerce, or discriminate against public employees because of their exercise of their rights under Section 3502. 3507. Rules and Regulations A public agency may adopt reasonable Rules and Regulations after consultation in good faith with representatives of an employee organization or organizations for the administration of employer -employee relations under this Chapter (commencing with Section 3500). 2 cc w m LL —l^ n V, ( �0 5Q U cc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19' 20 21 22 23 24 25 26 27 28 Such Rules and Regulations may include...(e) provisions for additional procedures for the resolution of disputes involving wages, hours, and other terms and conditions of employment... B. CITY EMPLOYER -EMPLOYEE RESOLUTION (1°EER") (Res. 3335, 3461) . .Government Code Section 3507 empowers a City to adopt reasonable rules and regulations . . . and the City of Huntington Beach desires to adopt such reasonable Rules and Regulations as authorized by law. . . 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECTION 1 TITLE OF RESOLUTION This Resolution shall be known as the "Employer -Employee Relations Resolution" of the City of Huntington Beach. SECTION 2 STATEMENT OF PURPOSE The purpose of this Resolution is to implement... Government Code Sections 3500 et seq.,...by providing orderly procedures for the administration of employer -employee relations between the City and its employees and for resolving disputes regarding wages, hours, and other terms and conditions of employment. This resolution is intended to establish uniform and orderly methods of communication between the City and its employees. SECTION 3 DEFINITIONS As used in and for the purpose of this Resolution, the following terms shall have the meanings indicated: 3-10. IMPASSE shall mean a deadlock in the discussions between a recognized employee organization and the City over any matter concerning which they are required to meet and confer in good faith, or over the scope of such subject matter. 3-11. MEET AND CONFER IN GOOD FAITH shall mean the performance by duly authorized City representatives and duly authorized representatives of a recognized employee organization of their mutual obligation to meet at reasonable times and to confer in good faith in order to exchange freely information, opinions, and Proposals, and to endeavor to reach agreement on matters within the scope of representation. This does not compel either party to agree to a proposal or to make a concession. 3-15. SCOPE OF REPRESENTATION shall mean all matters relating to employment conditions and Employer -Employee relations, including, but not limited to, wages, hours, and other terms and conditions of employment. 4 2 3 4 5 6 7 8 9 10 11 12 m 13 0 Co d -; 14 op sQ 15 2 IL 16 17 18 19, 20 21 22 23 24 25 26 27 28 SECTION 4 EMPLOYEE RIGHTS 4-1 RIGHTS ENUMERATED. Employees shall have the following rights: (a) To form, join, and participate in the activities of employee organizations of their own choosing for the purposes of representation on all matters of Employer -Employee relations. 4-2. INTERFERENCE PROHIBITED. Neither the City, nor any employee organization, nor any employee, shall interfere with, intimidate, restrain, coerce, or discriminate against any employee or employees because of the rights guaranteed hereunder. SECTION 8 MEMORANDUM OF AGREEMENT 8-1. MEMORANDUM OF AGREEMENT.- TERMS AND CONDITIONS. All matters of Employer -Employee relations within the scope of representation for all employees in any unit represented by a recognized employee organization, shall remain the same from year to year unless on or before March 1 of each Calendar Year thereafter, proposals in writing identifying the areas within the scope of representation to be covered in Negotiations are filed with the Personnel Director by such recognized employee organization... All Memoranda Of Agreement approved by the City Council shall be effective on July 1 of each year unless other provision is made, and the funding thereof shall be included in the City's Budget. No increase or improvement of wages, hours, or other terms or conditions of employment within the scope of representation shall be effective for employees represented by recognized employee organizations except by means of Memoranda Of Agreement signed by such recognized employee organizations and the Personnel Director, and approved by the City Council. SECTION 9 IMPASSE 9-1. IMPASSE MEETING. REQUEST FOR. If, after a reasonable period of time, the Personnel Director and the representatives of the recognized employee organization have exhausted all possible means of reaching Agreement, either party may, by written communication to the other, request an Impasse Meeting. Within ten (10) calendar days after receipt of the written request, there shall be an Impasse Meeting between the parties to: (1) Make one more attempt to reach Agreement. 5 1 2 3 4 5 6 7 8 9 10 11 12 17! 18 19 20 21 22 23 24 25 26 27 28 (2) Identify and reduce to writing the issue or issues in conflict. (3) Select by mutual consent, the type of Impasse Procedure to The used. 9-2. IMPASSE PROCEDURES. TYPES OF. Any of the following procedures may be selected in order to resolve an Impasse: (c) Advisory Arbitration. To be conducted under the Rules and Regulations of the American Arbitration Association. The arbitrator's recommendations will be submitted to both parties and the Personnel Board... When an Impasse is resolved in accordance with the procedures set forth in this Section, the Memorandum Of Agreement shall be modified accordingly, and such modified Memorandum Of Agreement shall be submitted to the Personnel Board for review and recommendation to the City Council. Said modified Agreement shall not be binding, nor any force or effect, unless and until approved by the City Council... 9-3. PROCEDURES GENERALLY. The following provisions shall apply to all Impasse Procedures: (a) Costs, if any, of Impasse Procedure will be borne equally by the parties. (b) All sessions under Impasse Procedure shall be private. (c) The result of any Impasse Procedure is subject to approval of the City Council. 6 rr w m oCD d--5 EL p 5Q 2 U cr 1 2 3 4 5 6 7 8 9 10 11 12 13 141 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. LEGAL ANALYSIS OF "MMBA" "MEET AND CONFER IN GOOD FAITH" OBLIGATION A. A PUBLIC SAFETY AGENCY MUST NEGOTIATE/"MEET AND CONFER IN GOOD FAITH OVER ALL MATTERS WITHIN THE SCOPE OF BARGAINING - THE FEDERAL NLRA IS REFERRED TO FOR DETERMINATION OF MMBA BARGAINING REQUIREMENTS. 1. In IAFF Local 1186 V. City of Vallejo, 12 Cal.3d 608; 116 Cal. Rptr. 507, 512-513 (10/02/74), the State Supreme Court determined the scope of bargaining of both the City Charter and the "MMBA". The Court said: ". . .the phrase 'wages, hours, and other terms and conditions of employment' in the MMBA was taken directly from the National Labor Relations Act (hereinafter NLRA) ... A whole body of federal law has developed over a period of several decades interpreting the meaning of the Federal Act's 'wages, hours, and other terms and conditions of employment.' "The NLRA provides that 'to bargain collectively is ... to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment.' [29 U.S.C. 158(d)] "We therefore conclude that the bargaining requirements of the National Labor Relations Act (NLRA) and cases interpreting them may properly be referred to for such enlightenment as they may render in our interpretation of the scope of bargaining under the Vallejo Charter." "...The State High Court determined that a "constant Manning Procedure" insofar as "such proposal relates to the questions of employee work load and safety" comes within the scope of "wages, hours and working conditions", and is therefore negotiable. The State High Court also held that "a reduction in Personnel" decision that "affects the work load and safety of Fire Fighting 7 1 2 3 4 5 6 7 8 9 10 11 12 rr m 13 J b Co -; 14 b sQ 15 cc 16 17 18 19. 20 21 22 23 24 25 26 27 IPersonnel is subject to negotiations-" The State High Court Said: 114. PERSONNEL REDUCTION ...because of the nature of fire fighting, a reduction of personnel may, affect the fire fighters' working conditions by increasing their workload and endangering their safety in the same way that general manning provisions affect workload and safety. To the extent, therefore, that the decision to lay off some employees affects the workload and safety of the remaining workers, it is subject to bargaining and arbitration for the same reasons indicated in the prior discussion of the manning proposal." As to the effect of the Court's decision upon the obligation !of the City to submit the disputed matters to I arbitration since such issues do involve the wages, hours, or working conditions of fire fighters, the Court said on pages 116-117: ooCalifornia favors arbitration provisions in Collective Bargaining Agreements and recognizes the important part they play in helping to promote industrial stabilization. (Citations Omitted). In this case, the voters of the City of Vallejo similarly declared that they consider arbitration to be the most appropriate means of resolving labor dispute factors relevant to the issues from the standpoint of both the employer and the employee, including the City's financial condition. go 2. In San Joaquin County Employees Assn. v. San Joaquin County, 39 Cal.App.3d 83, 86; 113 Cal.Rptr. 912 (1974), the Court of.Appeals held that the MMBA required a public employer to negotiate over the issues of retroactive pay increases - oothe element of retroactivity is a necessary ingredient not only as to salary, but as to insurance..." The Court said: "That Act ... by its terms endeavored to create a method whereby disputes regarding 'wages, hours, and other terms and conditions of employment' (Gov. Code Sec. 3500) could be 8 , 2 3 4 5 6 7 8 9 10 11 12 rr m 13 0 14 O ❑ gQ 15 cc 16 17 18 19. 20 21 22 23 24 25 26 27 28 resolved, a method which was at the same time both viable and voluntary. Therefore, we are constrained to interpret the Act in such a manner as to create no hypertechnical impediment to either its viability or its voluntariness within the State Constitution framework.,,(Emphasis Added) The Court of Appeals then relied heavily on the labor law of the private sector: "...the Act has drawn liberally from the experiences of private management labor relations. Certainly, the effective date of negotiated wage settlements is almost an invariable item in negotiations, and we further believe it is an accurate statement that pay raises are -frequently backdated to the date of expiration of the last contract...[P]ublic agencies, unlike private concerns, are faced with statutory budget deadlines... amended Section 3505 by adding the underlined language. Section 3505... 'Meet and confer in good faith, means that a public agency ... to meet and confer ... promptly upon request by either party and continue for a reasonable period of time ... and to endeavor to reach agreement on matters within the scope of representation prior to the adoption by the Public agency of its final budget for the ensuing year... jT] he Legislature contemplated that any adjustments negotiated would be made retroactive to July 1; the pay of employees continuing in the interim on the previous year's schedule, just as would be the case with private labor-management agreements... In summary ... the entire impact of the Meyers-Milias-Brown Act is to permit as much flexibility in Governmental Agency -Employee relations with regard to all aspects in the Employer -Employee milieu as a voluntary system will permit. To achieve this flexibility, the element of retroactivity is a necessary ingredient not only as to salaries, but as to insurance, seniority, and a myriad of other potential points of conflict."(Emphasis Added) 3. In Glendale City Employees Assn., Inc. v. City of Glendale, 15 Cal.3d 578; 83 Cal.Rptr. 513 (1975), the State High Court held that an approved MOU was a valid and binding Labor -Management Agreement. The Court said: "In applying the Meyers-Milias-Brown Act, 'the Courts have uniformly held that a memorandum of understanding once adopted by the governing body of a public agency, becomes a binding agreement' [Grodin, Public Employee Bargaining in California: The Meyers-Milias-Brown Act in the Courts, (1972) 23 Hastings L.J. 719, 756]. The leading decision, (however, is) arose under the earlier George Brown Act." [East Bay Mun. Employees 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Union v. County of Alameda,, 3 Cal.App.3d 578; 83 Cal.Rptr. 503]... ..."when a public employer engages.in such meetings with the representatives of the public employee organization, any agreement that the public agency is authorized to make and, in fact, does enter into, should be held as valid and binding as to all parties...If, under..."the George Brown Act", which does not specifically refer to an 'agreement reached by the representatives of the public agency and a recognized employee organization' —are 'valid and binding', we conclude a fortiori that the Memorandum of Understanding reached under the broader Meyers-Milias-Brown Act is indubitably binding." ..."We deal here with a mutually agreed covenant, a Labor Management Contract. We know of no case that holds that one party can impose his own interpretation upon a two-party Labor Management Contract." ..."But all modern California decisions treat Labor -Management Agreements whether in public employment or private as enforceable Contracts which should be interpreted to execute the mutual intent and purpose of the parties." ..."Agreements reached under the Meyers-Milias-Brown Act .... are the product of Negotiation and concession;... promotion of good Labor -Management relations...if... consistent with the objectives and expectations of the parties." 4. In Huntington Beach Police Officers® Assn. v. City of Huntington Beach, 58 Cal.App.3d 492; 129 Cal.Rptr. 893 (1976), the Court held that the City could not justify its refusal to bargain over a change in work schedules for Police personnel on the basis of management rights language contained in an "EER" adopted by the City Council. Since the matter was clearly within the scope of "meeting and conferring" under the MMBA, the Court declared the City's resolution purporting to render work schedules non- negotiable to be in conflict with the declared purpose of the MMBA and the mandatory "meet and confer" language of Section 3505. This "management rights" provision was therefore declared to be invalid. 10 2 3 4 5 6 7 8 9 10 11 12 Ir m 13 oCn 14 O ❑ sQ 15 2 cc 16 17 18 19 20 21 22 23 24 25 26 27 The Court said: "A written Memorandum of Understanding negotiated pursuant to the MMBA is, upon approval of the City Council, binding upon the parties and performance of the City's obligations under the Agreement may be enforced by the traditional Mandate..." "Rule 19 of the City's Personnel Rules and Regulations pertains to the settlement of Grievances in nondisciplinary matters." "Plaintiff's failure to exhaust the Grievance procedure of Rule 19 did not preclude it from seeking judicial relief... [A] Grievance is defined as 'a dispute concerning the interpretation or application of a provision of the City's Employer -Employee Relations Resolution, or any provision of this Resolution or any Departmental Rule governing personnel practices or working conditions,...' The present dispute pertained to the City's obligations under the Memorandum of Agreement and the MMBA;. . ." "With respect to matters of statewide concern, charter Cities are subject to and controlled by applicable general State Law if the Legislature has manifested an intent to occupy the field to the exclusion of local regulation... Labor relations in the public sector are matters of statewide concern subject to State legislation in contravention of local regulation by chartered Cities." "...the provisions of the EER Resolution purporting to exclude the subject of working hours from the 'meet and confer' process are in direct conflict with provisions of the MMBA imposing upon government bodies of public agencies an obligation to 'meet and confer in good faith regarding wages, hours, and other terms and conditions of employment (Gov. Code Sec. 3505).'... [W]e cannot attribute to permit local entities to adopt regulations which would frustrate the declared policies and purposes of the MMBA. Were we to uphold the City's regulation in question, local entities would,...adopt rules ... refuse to 'meet or confer' with recognized organizations on matters pertaining to employment relations - in short, to undercut the very purposes which the Act purports to serve. . ." "...the MMBA is intended 'to strengthen merit, civil service, and other methods of administering employer -employee relations through the establishment of uniform and orderly methods of communication between employees and the public agencies by which they are employed (Gov. Code Sec. 3500) .' In furtherance of that purpose,...imposed upon public agencies the duty to 'meet and confer in good faith regarding wages, hours, and other terms and conditions of employment (Gov. Code Sec. 11 WO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3505).1 The City's EER Resolution purporting to render work schedule nonnegotiable is in conflict with the declared purpose of the MMBA and the mandatory language of Section 3505. It is therefore invalid." 12 1 2 3 4 5 6 7 8 9 10 11 12 rr m 13 LL O —; 14 op sQ 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JIB. UNILATERAL ADOPTION OF A "TERM AND CONDITION OF EMPLOYMENT" II SUBJECT TO THE MANDATORY 11MMBA11 a®MEET AND CONFER" REQUIREMENT. II THEREFORE, THE UNILATERAL ADOPTION OF SUCH POLICY IS A 81PER SE®1 IIVIOLATION OF THE "MEET AND CONFER" DUTY, AND .IS INVALID/NULL AND AVOID. 1. The scope of representation/Negotiations under the 11MMBA®B 11includes $fall matters relating to employment conditions and emnlover-emnlovee relations, but not limited to wastes, hours, and other terms and conditions of employment.'° Bargaining requirements of the NLRA and cases interpreting them could be properly referred to in interpreting the scone of bargaining under the MMBA. [Vallejo, supra]. The MMBA principles to administer employment relations, including the right to negotiate is to have state-wide application. [L.A. County FF Local 1014 v. City of Monrovia, 24 ICal.App.3d 288 (3/22/72)] 2. "The obligation, in proper cases, to (meet and confer" romvtly upon request, is absolute... Negotiation is required not only concerning wages and hours ... but also concerning 'other terms and conditions of employment', which may have no effect on the budget.19 [Dublin FF Local 1885 v. V. Com. Serv. Dist., 45 Cal.App.3d (2/06/75)] 3. Proposed amendments to Personnel Rules are within the scope of the 91meet and confer" obligation; unilateral adoption of a Personnel Policy is void for failure to comply with the 11MMBA" "meet and conferee requirement. [Intl. Assn. of Firefighters Union v. City of Pleasanton, 56 Cal.App.3d 959, 976; 129 Cal.Rptr. 68, 80 13 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (1976)] 4. A public agency must "meet and confer" over Civil Service Rules; and such requirement is separateZdistinct from the Public Hearing requirement of Gov. Code Sec. 3504.5; such Civil Service Rule need not be budget -related. [L.A. Civ. Serv. v. Sup. Ct., 74 Cal.App.3d 1 (12/01/77)] "Gov. Code Sec. 3505 requires that public agencies 'meet and confer in good faith regarding wages, hours, and other terms and conditions of employment' with... recognized employee organization ... If this Negotiation Process is successful, it results in a non -binding Memorandum of Understanding (Gov. Code Sec. 3505.1) . It is clear that the right to 'meet and confer' is more than just the right to be heard. It involves Negotiation, a 'serious- attempt to resolve differences and reach a common ground' (Citation Omitted). To be blunt, it leads to a bargaining session." 5. A unilateral change in a "condition of employment" concerning a mandatory subject of bargaining constitutes a "per se" violation of the "meet and confer in good faith" duty. (NLRA) In NLRB v. Katz, 369 U.S. 756; 50 LRRM 2177 (1977), the U.S. Supreme Court held/stated: "It is a violation of the duty to bargain 'collectively imposed by Section 8(a)(5) of the NLRA for an employer, without first consulting a union ... to institute changes regarding matters which are subjects of mandatory bargaining under Section 8(d) and which are in fact under discussion... The duty to 'bargain collectively' enjoined by Section 8(a)(5) is defined by Section 8(d) as the duty to 'meet and confer in good faith' with respect to wages, hours, and other terms and conditions of employment ... A refusal to negotiate in fact as to any subject which is within Section 8(d), and about which the union seeks to negotiate, violates Section 8(a)(5)... We hold that an employer's unilateral change in conditions of employment under negotiation is similarly a violation of Section 8 (a) (5) , for it is a circumvention of the duty to negotiate which frustrates the objectives of Section 8(a)(5) much as does a flat refusal." (Emphasis Added) 6. When "good faith" Negotiations result in a bona fide 14 1 2 3 4 5 6 7 8 9 10 11 12 C1 m 13 0_ 14 00 sQ 15 Q 16 17 18 19 20 21 22 23 24 25 26 27 28 1 IlImpassell/ 11genuine deadlock" in Negotiations I I 101conditions of employmentBll [NLRB v. Tex -Tan, 319 F2d 472 (1963)] 7. affect conditions of emnlovment - includes such matters as emvlovee intoxication, violent or disorderlv conduct. A I'venalty vrovisiontl "in and of itself affects employment security, and therefore is a mandatory subject of bargaining [Peerless Publications, 23, NLRB NO. 15; 95 LRRM 1611 (8/9/77)]. S. An employer violates the duty to "bargain in good faith##, 10by failing to consult with the certified union before unilaterally adopting certain work rules.../1 fTiidee Products, Inc., 176 NLRB No. 133; 72 LRRM 1199 (6/24/69)1. When rules are new, including penalties, Union does not "waive" right to bargain, when previously not requested baraainina over Dlant rules. Union is entitled to bargain about "substance and merits of the rules. 11 [Miller Brewin Co, 166 NLRB No. 90; 65 LRRM 1649 (7/20/67)] 9. "Alcohol and drug testingtl is a negotiable subject of bargaining and is not waived, when not mentioned discussed during negotiations [Johnson - Bateman, 295 NLRB No. 26; 131 LRRM 1393 (6/15/89)]. lo. "Physical testing/medical screeningB1 is a mandatory subject of bargaining - includes whether "such tests will be used to screen out, reject, or deny employment" [Lockheed Shipbuilding, 273 NLRB No. 25; 118 LRRM 1284 (12/10/84)] 11. A ##drug testingif order, or medical exam is subject to the 15 M w m LLll^ W VJ 00 5Q U Ir 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19' 20 21 22 23 24 25 26 27 28 erMMgAee "meet and confer" requirement. [Holliday v. City of Modesto, 229 Cal.App.3d 528, 540; 280 Cal.Rptr. 206 (1991) ] The Court said: "Thus, the question here is whether respondents' orders that Holliday submit to drug testing constitute a condition of employment, and thus a subject of negotiation with the union..." ..."[F]ederal cases interpreting the National Labor Relations Act are viewed as authority in analyzing the MMBA. 'The Meyers-Milias-Brown Act (Gov. Code Section 3500 et seq.) parallels the National Labor Relations Act (29 U.S.C. Section 151 et seq. (NLRA)) and California courts should look to federal case law in interpreting the act. ' [Public Employees Assn. v. Board of Supervisors, 167 Cal.App.3d 797, 806-807; 213 Cal.Rptr. 491 (1985)]" ..."[T]he National Labor Relations Board has concluded that drug testing of current employees is a mandatory subject of bargaining under the NLRA. 'We find that the Respondent's newly imposed requirement of drug/alcohol testing for employees who require medical treatment for work injuries is a mandatory subject of bargaining. In Ford Motor Co. v. NLRB, the Supreme Court described mandatory subjects of bargaining as such matters that are "plainly germane to the 'working environment"' and "not among those 'managerial decisions, which lie at the core of entrepreneurial control"' ... [W] e find the drug/alcohol testing requirement to be both germane to the working environment, and outside the scope of managerial decisions lying at the core of entrepreneurial control.' [Johnson -Bateman, supra]" "Although the testing in Johnson -Bateman was of workers' 'who require medical treatment for work injuries', the rationale for the NLRB conclusion appears to be present here. As in Johnson -Bateman, the instituted testing constitutes 'a condition of employment because it has the potential to affect the continued employment of employee who become subject to it.' [Johnson -Bateman, supra] The NLRB likened drug/alcohol testing to physical examinations and polygraph testing, both of which had previously been found to be mandatory subjects of bargaining." [Lockheed Shipbuilding, supra] ... [W]e conclude that the drug/alcohol testing requirement is entirely 'germane to the working environment' ... and thus, to that extent, it is a mandatory subject of bargaining. [Id., at p.--, fn. omitted.]" 16 1 2 3 4 5 6 7 8 9 10 11 12 cc m 13 o(D —; 14 O ❑ ga 15 16j 17 18 19. 20 21 22 23 24 25 26 27 28 12. A Personnel Policy/Rule is a "term and condition of employment" that is within the "scope of representation®" and is subject to the MMBA mandatory "meet and conferl' requirements. "Unilateral adoption of such Rule without prior notice to or meeting and conferring with the Union was void in its entirety for procedural violation of Gov. Code Sec. 3505.1" [Vernon Firefighters v. City of Vernon, 107 Cal.App.3d 352; 165 Cal.Rptr. 908 (7/21/80)] In the private sector... disciplinary and plant rules are examples of '$terms and conditions of employment," as that phrase is used in the Labor Management Relation Act ... The fact that penalties were prescribed for breaches thereof sufficiently affected the conditions of employment to make them mandatory subject -of bargain... (Tiidee Products) ... A penalty provision "'in and of itself$" can make an otherwise not included rule a term and condition of employment... (Peerless Publication, Inc.)... Therefore, both with regard to its penalty provision and because it was a work rule, the applicable federal standard would clearly establish the rule in question as a $$term or condition of employment." ... the privilege... was a practice that was sufficiently widespread and of sufficient duration to constitute an implied condition of employment. $$... The rule in California is well settled: a city's unilateral change in a matter within the scope of representation is a per se violation of the duty to $$meet and confer in good faith." '"[T]he courts have not been reluctant to intervene 'when a public agency has taken unilateral action without bargaining at all. In such situations, courts have been quite zealous in condemning the unilateral action and in granting appropriate relief."' (citation omitted) ... "The employer's fait accompli thereafter makes impossible the give and take that are the essence of labor negotiations.' ...another construction would be at direct odds with he purpose of the MMBA,... Ito promote full communication between public employers and their employees'... In accord with ...Katz, supra, California courts have adopted the private sector view that unilateral action constitutes a per se violation of the MMBA, and must therefore be set aside until the "meet and confer in good faith" duty has been met by the employer... Unilateral adoption of the rule in question, without prior notice to the Union, negates the City"s contention that the latter waived its right to meet and confer. [107 Cal.App. pp 814-82, 165 CR 916-922]. 13. In San Joacruin Employees Assn. v. City of Stockton, 161 17 1 2 3 4 5 6 7 8 9 10 11 12 rr 13 LL 14 oq sQ 15 z Q 16 17 18 19 20 21 22 23 24 25 26 27 28 IICal.App.3d 813; 207 Cal.Rptr. 876 (1984), the Court held that during Negotiations, prior to Impasse, a Public Employer may not unilaterally change "conditions of employment"/insurance benefits specified in an expired Agreement. IThe Court said: "...the cost of insurance rose by $19 per employee per month...[W]hile negotiations on new MOU's were still in progress and prior to any impasse in negotiations, City notified its employees that it would withhold the $19 from each employee's paycheck..." "Section 3505 requires City to 'meet and confer in good faith' with employee representatives prior to making any unilateral change in the level of wages or benefits." "...after the expiration of a collective bargaining agreement, the duty to bargain collectively requires the employer to maintain the status quo without taking unilateral action as to wages, working conditions, or benefits until Negotiations reach an Impasse ... The collective bargaining agreement itself survives its expiration date for some purposes. Thus, during Negotiations prior to Impasse, an employer may not unilaterally change insurance benefits specified in an expired agreement." " ..[T]he State and Federal statutes serve the same purpose: to require an employer to negotiate with employees before implementing decisions that are properly the subject of bargaining." "...When City unilaterally began to extract monetary contributions from employees to pay for the benefits it was obligated to supply under the expired MOU's, it disturbed the status quo. City's unilateral extraction of the contributions violated Section 35051s commands that City 'meet and confer in good faith' and that it fully consider a presentation by Plaintiff prior to arriving at a course of action." "...Its obligation is not premised on the expired Agreement per se but rather on its duty to maintain the status quo during Negotiations under Section 3505...(A] Writ Of Mandate will lie to compel a City to pay benefits not encompassed by an Agreement when the benefits are mandated by provisions of the MMBA." "...City should not be able to undertake an unlawful act to gain bargaining leverage in Negotiations. The Courts ... issue 18 1 2 3 4 5 6 7 8 9 10 11 12 cc m 13 0 CO -; 14 00 gQ 15 2 16 17 18 19 20 21 22 23 24 25 26 27 28 Writs Of Mandate to correct plainly unlawful practices undertaken by public employers during Negotiations subject to the MMBA." 14. In Santa Clara County Counsel Attorneys Association v. IlWoodside, Cal. , 28 Ca1.Rptr.2d 617 (3/31/94), in declaring that County Counsel Attorneys' Association had enforceable rights �Iunder the "MMBA", the State High Court held that (1) The "MMBA"1 imposes an affirmative duty upon a public agency to "meet and confer in good faith" with representatives of recognized employee organizations, and "to refrain from making unilateral changes in employees' wages and working conditions" until a bargaining Impasse has been reached; (2) Public employees and their employee organization(s) have a right to sue under a Writ of Mandate to enforce their statutory rights. The State High Court said: A. STATUTORY ARGUMENTS "We construe the MMBA to provide a right to petition for Writ of Mandate to those employees who fall within its protections..." 1. SCOPE OF COVERAGE UNDER THE MMBA ..."The MMBA was adopted in 1968... to provide "a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment" (Gov. Code Sec. 3500). Its principal means for doing so is by imposing on public agencies the obligation to 'meet and confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of recognized employee organizations' (Gov. Code Sec. 3505). The duty to ®meet and confer in good faith' has been construed as a duty to bargain with the objective of reaching binding agreements between agencies and employee organizations over the relevant terms and conditions of employment. [Glendale City Employees' Assn., Inc. v. City of Glendale, supra]. The duty to bargain requires the public agency to refrain from making unilateral changes in employees' wages and working conditions until the employer and employee 19 1 2 3 4 5 6 7 8 9 10 11 18 19 20 21 22 23 24 25 26 27 Associations have bargained to impasse; this duty continues i effect after the expiration of any Employer -Employe Agreement.®a [San Joaquin, supra] 2. THE RIGHTTO SUE UNDER THE MMBA ... "We have consistently held that the Legislature intended ii the MMBA to impose substantive duties, and confer substantive, enforceable rights on public employers and - employees.° [Gridley, supra]... ... ®®The MMBA, at Government Code Section 3505, created a cle and present duty on the part of the County to meet and conf with the Association in good faith on the fixing of the Association members® salary and other conditions of employment, and created in Association members t corresponding beneficial right to 'meet and confer'." [Holliday, supra] 15. Withholding benefits from one group of employees whose representatives continue to engage in the Negotiation/Impass Process but who have not settled, when such benefits have bee granted to other group(s) of employees who have settled constitutes discrimination/punishment for engaging in "protecte activities", including the "meet and confer'O process. [Gov. Cod Sec. 3506; Campbell Mun. Emp. Assn. and Los Angeles County Emp Assn. Local 660, discussed herein] a. In Campbell Mun. Emp. Assn. v. City of Campbell, 13 Cal.App.3d 416; 182 Cal.Rptr. 461 (1982), the Court said: 11 ... [D]ate for retroactivity ... employees represented by CME was at variance,... with the date fixed for retroactivity o increases for employees represented by all other organization which negotiated with the City,... explanation for th difference was that CMEA.... chose to utilize the Impass Procedure which the City had adopted. By such conduct, th City discriminated against CMEA and its members in violatio of Government Code Section 3506." "The ®activities® of employee organizations, participation which is protected against discrimination by section 3502, includes the process of "meeting and conferring® (i.e. negotiating) in an effort to reach agreement on matters wits 20 2 3 4 5 6 7 8 9 10 11 12 11 m 13 LL -; 14 op sQ 15 Cl 16 17 18 19 20 21 22 23 24 25 26 27 28 the scope of representation (Gov. Code Sec. 3503, 3505). Th, City, through its Employee Relations Ordinance, has made th Impasse Procedure part of the meeting and conferring process Therefore, participation in the Impasse Procedure is among th activities protected by the statute." "The language of Sections 3502 and 3506 is patterned closel upon analogous provisions of the National Labor Relations Ac (29 U.S.C. Sec. 141 et seq.)... The federal act similarl makes it an unfair labor practice to interfere with, restrain or coerce employees in the exercise of their rights to 'form join, or assist labor organizations, to bargain collectivel through representatives of their own choosing' (29 U.S.C. Sec 158(a)(1), 157), and to discourage membership in any labo organization 'by discrimination in regard to hire or tenure o employment or any term or condition of employment' (29 U.S.0 Sec. 158(a)(3)). It is therefore appropriate to look t federal law for guidance in interpreting the provisions of th state statute." In TIT v. Great Dane Trailers, 388 U.S. 26; 87 S.Ct. 179 (1967), the Supreme Court held that: "...The act of paying accrued benefits to one group c employees while announcing the extinction of the same benefit for another group of employees who are distinguishable only by their participation in protected concerted activity surel may have a discouraging effect on either present or future concerted activity." "If an employer's discriminatory conduct is 'inherently destructive' of important employee rights, no proof of antiunion motivation is needed..." 11... The City has in effect discriminated against employe s represented by CMEA by withholding from them a degree f retroactivity in wage and fringe benefit increases which h d been agreed upon in earlier negotiations, and which w s granted to all other employees. The inference is strong th t the motivation for that discrimination was to 'punish' CM A and its members for utilizing an Impasse Procedure which t e City adopted as part of the 'meet and confer' process ... pa t and parcel of activities protected by the statute.,, 11...(T]he differential retroactivity period was adopt d precisely to 'reward' other employee organizations for having settled their disputes without utilizing the Impas e Procedure." "...It has discriminated against these employees in violati, of Section 3506." 21 1 2 3 4 5 6 7 8 9 10 11 12 m 13 LL - -; 14 op sQ 15 vIr 16 17 18 19. 20 21 22 23 24 25 26 27 28 11... [M]ake employees whole for the loss in retroactivity o salary and insurance premium increases during the period o October 1, 1978 to February 1, 1979.01 b. In of Los Angeles, 168 Cal.App.3d 683; 214 Cal.Rptr. 350 (1985), the Court said: "...[A] fringe benefits Memorandum of Understanding (MOU) wa reached... covering,... the County's contribution to healt insurance. However, the Board of Supervisors refused t approve that Agreement unless and until each unit had reache an agreement over wages (or salaries). The Board..., approvin the health insurance increase as to those Unions which ha completed Wage Negotiations but not as to Unions (here th Appellants) which had not reached such Agreements..." "The law against 'discrimination' bars differences in treatment based on unlawful and unreasonable differences Here, Appellants seek to receive the same level of health car benefits that the County awarded to all other Count employees." "...Respondents have conceded... that 'implementation in th past was as to all units at the same time.' Thus, even if th past practice was to delay implementing the fringe benefi agreement until all the units had reached agreement, this cas presented a break with the past, as units which had reache agreement received the benefit of certain provisions o the fringe benefit Agreement which were denied at that time t the non -settling units." "We are convinced that the difference in treatment constitut a violation of Gov. Code Sec. 3506.01 01...(as in Campbell,supra) County Supervisor in recommendin immediate implementation of the health benefit increase fo settling units ... In rewarding those groups, the Count improperly discriminated against the groups which were stil negotiating." "...Since the past practice had been to give the same date t everyone, it constituted discrimination to unilaterally decid to implement the benefits only for units which had reache agreement." ''...The San Leandro opinion held that the Cityls action 'interfered with and discriminated against a group o employees by reason of their decision to exercise their righ to participate in employee organizations, thereby violating 22 m w m LL `J^ to 8-� It 00 gQ U 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gov. Code Sec. 3506... The same is true here, where the County's action discriminated against that group of employees who belonged to units to which were still bargaining." "Social Services Union v. County of San Diego, 158 Cal.App.3d 1126; 205 Cal.Rptr. 325, further supports our conclusion..." "... [E]nactment...extending the olive branch of paid holidays to those organizations signing Memoranda of Agreement before December 24, 1982 is a... coercive tactic... A penalty is imposed upon those employees because their bargaining units had not come to terms with the County. This is a clear violation of Gov. Code Sec. 3506." It ... Los Angeles County's conduct was destructive of the purpose and intent of the Meyers-Milias Brown Act to prohibit public agencies in their relations with their employees from intimidation, coercion, and discrimination.1' 23