In recent arbitration proceedings between the city of Hillsboro and the International Association of Firefighters, Local 2972 (the Hillsboro firefighters), Columbus attorney and arbitrator Philip H. Sheridan, Jr. found in favor of the local firefighters.
According to Sheridan, "The employer (the city) violated the parties’ collective bargaining agreement when it laid off four bargaining unit members. The bargaining unit members who were laid off are to be reinstated with full pay and benefits, and seniority, retroactive from the dates of layoffs until the dates of their reinstatement; to be made whole after consideration of any substitute income or benefits received on account of the layoff.
"Section 33.05 is to be applied prospectively; that is, the bargaining unit members shall be offered overtime each time the daily staffing falls below three full time firefighter/paramedics."
"The bargaining unit, Local 2972 of the International Association of Fire Fighters, filed a class action grievance that challenged the layoffs of bargaining unit members, the failure of the city to fill vacant positions as required by the collective bargaining agreement, and the failure of the city to maintain the staffing requirements of the agreement. The grievance was denied and the parties chose me to conduct the arbitration," Sheridan wrote.
The arbitrator's May 31, 2013 decision was sent to the respective attorneys for the city and the union.
Mr. Sheridan's decision includes the following documentation of which Hillsboro City Council President Lee Koogler has informed members of council:
The bargaining unit’s position is summarized as follows: The parties entered into a binding successor collective bargaining agreement (CBA) effective January 1, 2011, through December 31, 2013, which includes Article X (binding nature of the agreement), Article XIV (limits on arbitrator), Article XXX (layoff), and Article XXXIII (no contracting out, replacement of firefighter/paramedic(s), minimum bargaining unit and staffing requirements).
The bargaining unit argues that the city failed to demonstrate that the CBA relied on by the bargaining unit was invalid, failed to demonstrate that the city was 'validly financially strained' to support layoffs, failed to meet the contractually mandated minimum staffing requirements, failed to fill vacant positions as required, and failed to offer overtime when the staffing fell below three bargaining unit members per shift.
The city’s position is summarized as follows: The bargaining unit did not meet its burden of proof. The city had substantial financial indicators that its spending was outstripping its revenue, which necessitated application of the layoff provisions of the contract to avoid deficit spending in the first quarter of 2013 and depletion of the carryover balance below prudent levels. The unexpected failure of negotiations between the city and the seven townships that it had previously served contributed greatly to the threat of deficit spending, and constituted 'exigent unforeseen circumstances' that justified the layoffs. The minimum manning provisions of the CBA never went into effect because the city council never approved the additional funding for the minimum manning and never approved the 2011-2013 CBA.
The City of Hillsboro had provided fire and EMS services through its city fire department to some of the surrounding townships since the 1980s. When the current collective bargaining agreement was implemented, the city provided fire and EMS services to seven townships, which encompasses over 240 square miles of service area. The population served was 20,641, which included the population of Hillsboro (6,505).
By August 2012 all of the townships had contracted with Paint Creek Fire District for services after negotiations with the city for a service contract to cover 2012-2014 did not result in agreement. The population served shrank to 6,505, the service area shrank to 5.45 square miles, and the number of runs decreased by over 32 percent. Six of the townships had been paying $22 per capita per year, and one had been paying $18 per capita to the city under separate agreements with the city.
The city served layoff notices in November, effective in January of 2013, on the five least senior full-time firefighters, pursuant to the CBA. Ultimately, four were laid off. It has since maintained a work force of six full-time firefighters, and because of retirements and resignations only two of the originally laid off firefighters remain on layoff status.
The city provided evidence that demonstrated that the city has depleted its initially robust carry over balance in each of the last five years. The city auditor believes the current carry over balance is below the amount necessary to avoid deficit spending.
The first issue, raised by the city for the first time in the submission for this arbitration, is that the failure of city council to act to approve additional funding for the minimum manning provided in the CBA invalidates the minimum staffing provisions added to the contract for the first time in the last contract negotiation. The CBA went to fact finding, the bargaining unit accepted the fact finder’s report, and the city apparently took no action.
The city argues that R.C. § 4117.10(A) applies, and that Article VII of the labor agreement is a “specific, contrary contract provision” that supersedes R.C. § 4117.14(C)(6)(a). Because the city council never passed a resolution providing for additional funding of the minimum staffing provisions of Article XXXIII it never went into effect.
The city also argues that the attachments to the CBA, which included tentative agreements, were not dated, so the bargaining unit failed to prove the minimum manning was subsumed into the contract when the fact finder issued her report. The bargaining unit points to the presumed regularity of the process, and the fact that payrolls have been met, and insurance provided, etc., for almost two years of the three year CBA.
The evidence is clear that the parties relied on and implemented the CBA in question, and that no issue was raised for almost two years concerning Article XXXIII. It appears that there were at least 12 full-time firefighters before the current CBA was negotiated (there were also part-time or volunteer firefighters routinely scheduled in addition to the full time bargaining unit members), so no increase in funding was necessary even if the CBA language of Article VII supersedes R.C. § 4117.14(C)(6)(a).
The city should not benefit from inaction that was totally within its control and beyond the control of the bargaining unit. The CBA is in effect in its entirety as it was negotiated by the bargaining unit and the previous administration of the city.
The ultimate question for determination is whether the city had sufficient grounds for layoffs. Obviously, if the layoffs were invalid Article XXXIII violations include the total staffing section, the failure to fill vacant positions, and the failure to offer overtime where staffing fell below 3 bargaining unit members.
The city argues initially that the loss of all of the township contracts, the diminishment of service, the shrinkage of the service area, and the loss of the funds provided by the townships consisted of “exigent, unforeseen circumstances” that supported the action taken to “right size” the fire department.
The bargaining unit argues that the mayor sabotaged the negotiations with the townships because he wanted the city to join the Paint Creek Fire District and dissolve the city fire department.
The mayor’s comments at the July 9, 2012 city council meeting make clear that even during his campaign for mayor he believed that the city fire department was too expensive and that joining the fire district was the most economical and efficient way to continue to provide fire and EMS services to the city.
According to the city auditor, the negotiations with the townships attempted to raise the per capita amount so that the payment by the townships would more closely match the cost of providing the services. He believed that $100 per capita or more was necessary to actually pay what the service provided was costing the city.
Although several of the townships offered $50 per capita before joining the Paint Creek Fire District, no agreement was reached after over 7 months of negotiation, and all of the townships eventually joined the Paint Creek Fire District.
City council rejected the mayor’s proposal to have the city join the fire district, and the layoffs resulted after the auditor’s analysis, which indicated a loss of revenue of over $400,000 per year split between the township payments that ended and the loss of ambulance reimbursement for runs to the townships.
“Exigent circumstances” is a term more familiar in criminal procedure than in labor relations. More generally, the term might be defined as unusual events that require immediate response and might excuse compliance with some procedural requirements; or it might be defined as an emergency situation that requires immediate response to prevent imminent threat of harm to persons or serious harm to property.
Adding “unforeseen” to the term and arguing something akin to mutual mistake of fact does not seem to apply to the facts as presented. Any time a party enters into arm’s length negotiation with another independent party the chance of failure to reach an agreement should be considered and thus such a failure is not unforeseen.
Articles XXXIII and XXXIV also indicate that the parties had concerns when the CBA was negotiated about contracting out, fire districts and other actions that might otherwise have been available to the city to reduce costs when the agreements were not reached with the townships.
The ultimate and deciding issue for determination is the validity of the layoffs.
The city presents evidence concerning the reduction in service area and service provided after the townships joined the Paint Creek Fire District, evidence of the reduction in revenues that resulted from losing the townships, and evidence of the city’s reduced carryover balance.
The bargaining unit presented evidence of ordinances from city council authorizing the mayor to negotiate with the townships based on per capita charges that were less than the amounts the townships ultimately paid to the fire district.
From letters sent by the county prosecutor on behalf of the townships, it does not appear that the mayor made offers based on the city council action. The mayor and safety director made no response to repeated attempts by the bargaining unit to avoid the layoffs through offers to reduce the costs of operation of the fire department through actual reductions in income by bargaining unit members, and there was evidence that the layoffs resulted in more savings to the city than the amount lost when the townships decided to join the fire district ($600,000 saved v. $400,000 lost).
Article 30.02, which was changed as a part of the current CBA, provides in part: “In the event the City of Hillsboro becomes legitimately financially strained and layoffs become a necessity, the City of Hillsboro will lay off in the following order…” Article XXXIII provides the minimum manning requirement, and other sections contemplate reduction in service, filling vacancies, contracting out, and overtime when staffing falls below three full time firefighter/paramedics.
Article XXIV provides for maintenance of all rights and benefits during the term of the contract even if the city transfers the fire department to another entity, e.g. a fire district.
The layoff notices referred to a lack of funds, and the city also referred to the reduced scope of work to be performed as the reasons for the layoff.
The first question for determination is the standard for lack of funds. Did the parties’ use of “legitimately financially strained” in Article 30.02 change it from that provided in R.C. §124.321(B)(6)?
That section provides in part that a lack of funds is “…a current or projected deficiency of funding to maintain current, or to sustain projected, levels of staffing and operations.”
My understanding of “legitimately financially strained” is much the same as my understanding of the statutory language. The reduced scope of work was clearly established, but although it is a close call, I don’t believe the city was “legitimately financially strained” when the layoffs were initiated. There was a sufficient carry over balance to carry the city through the first quarter of 2013, which does not equate to “legitimately financially strained.”
Although the layoffs were a violation of the collective bargaining agreement the remedies I can effectively award seem limited.
The elephant in the room is that the CBA expires December 31, 2013.
Initially, the laid-off employees should be made whole. This includes any bargaining unit members who were laid off and recalled.
While there is a continuing violation of the contract regarding minimum manning, filling vacant positions, and offering overtime to bargaining unit members whenever the daily staffing falls below 3 bargaining unit members, the reality is that negotiations for a successor CBA will be beginning soon, and clearly minimum manning and staffing are going to be rejected and taken to fact finding and conciliation, if necessary, by the city based on the auditor’s projections and the loss of the townships.
With 140 days to fill any vacancies, no new firefighter/paramedic is likely to be hired before the middle of September at the earliest, and it seems like a lot of effort to hire someone who will be laid off in three months if the city succeeds in convincing a fact finder and conciliator that six bargaining unit members is the right size for the city fire department, or city council decides to abolish the department before a collective bargaining agreement is reached.
Similarly, I have no way of calculating the amount of overtime that would have been accepted if the city had offered it every work day since the city changed to three two man platoons in January. Payment of overtime for every day since January 7, 2013 would result in a windfall for the bargaining unit members who were not laid off.
Finally, the bargaining unit has asked that I order the city to pay the bargaining unit’s attorney fees and costs. The bargaining unit correctly states the standard, which is similar to that for an award of punitive damages in a civil case.
The bargaining unit claims that the mayor’s behavior constitutes “bad faith, or egregious, flagrant, willful and repeated violations of the contract.”
Again, this appears to me to be a close call. I agree with the city concerning the evidentiary value of newspaper articles. I don’t know anything about the paper, the politics, or the local scene that would allow me to evaluate the truth of the matters asserted in the articles presented.
However, I do find reliable some of the information in the testimony of the bargaining unit member concerning efforts to negotiate with the city, and information in the county prosecutor’s letters to the city attempting to negotiate.
I find reliable the comments attributed to the mayor in the city council minutes of the July 9, 2012 meeting.
The city auditor testified that the mayor wanted to either form a new fire district, or he wanted to dissolve the city department and join the Paint Creek Fire District.
The mayor is confident his policy decision to give up control of the firefighting and EMS services in return for set, reduced costs to the city by joining a fire district is the right decision for the city. I do not find this to be bad faith, and I suspect there will be renewed efforts by the mayor to convince city council to disband the city fire department and join the fire district when the current CBA expires.
The troubling evidence in this matter is that the city’s “response” to attempts to negotiate by the county prosecutor on behalf of the townships and to attempts by the bargaining unit to offer alternatives to the proposed layoffs is the city’s apparent lack of any serious effort to respond, let alone negotiate.
However, I do not find “egregious, flagrant, willful and repeated violations of the contract.” Rather, I find a continuing violation of several terms of the contract as a result of the layoff implemented by the city.
PHILIP H. SHERIDAN, JR.)