City of Boca Raton
I.A.F.F. Local 1560
FMCS Case No. 05454-3
116 LA (BNA) 328
October 23, 2001
Roger I. Abrams, Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service
On October 16, 2000, Firefighters Local Union 1560 President Mike Gregora filed a class action grievance against the City of Boca Raton, Florida, protesting the hiring by the City of a firefighter at 10% above the starting wage rate set forth in the Agreement. The City denied the grievance, explaining that the Fire Chief's action was permitted by a City ordinance. Unable to obtain relief, the Union has now brought the matter to arbitration.
The parties stipulated to the following statement of the issues to be resolved:
Did the City violate the Collective Bargaining Agreement when it hired Robert Rubino at 10% above the minimum provided in the Agreement?
If so, what shall the remedy be?
On August 14, 2000, Fire Chief Bruce W. Silk of the City of Boca Raton, Florida hired Robert Rubino as a firefighter/PIH at $14.40 an hour, 10% higher than the minimum pay provided in the Collective Bargaining Agreement between the City and the Firefighters Union. Union President Michael A. Gregora learned about this action when the Union checked in October to make sure that all members had received the correct annual contract increase. In addition, Rubino had asked his Union President about the increase and during the course of that conversation revealed that he had been hired at 10% above the minimum rate. The Union immediately grieved the City's action as a direct violation of Article 36 and other contract provisions. Chief Silk denied the grievance, stating that he was permitted by the City's Rules and Regulations to hire at 10% above the minimum pay.
Gregora explained that the Agreement's wage clause provides that employees can move up within a rate range through merit increases (from 0-7%) awarded on their anniversary dates and annual across-the-board increases (3% a year under the current contract) awarded on October 1. The parties stipulated that prior to Rubino's hiring every firefighter in the Department had been hired at the minimum salary.
The City's action in treating this one new hire differently from all others has had a tremendous impact on the bargaining unit. Morale is low and discontent is high among the City's firefighters. (The interest in this case was evident. The hearing room was filled with at least forty members of the bargaining unit.)
The Union presented evidence of an incident in 1997 involving the prior Fire Chief and prior Human Resources Manager where a transferred employee, a Mr. Oatley, received more than the starting minimum salary so that the salary he received from the City would not decrease. In the exchange of letters between management officials concerning this matter, the Fire Chief plainly stated to the Human Resources Manager that the policy with regard to hiring was to bring folks on board at the minimum salary and not higher.
The City's job announcements, both posted and those on-line, state as the “starting salary” for all bargaining unit employees as the minimum salary set forth in the Agreement. In addition, the job application package states the minimum salary as “the salary.” However, for police represented by the F.O.P. and general employees represented by a local of the S.E.I.U., there have always been employees hired at more than the minimum salary. These actions were based on the City's Rules and Regulations, Article 3, Section 10, that provides:
An applicant who is given an original appointment shall ordinarily be paid at the minimum rate for the class to which appointed. If an applicant possesses training and experience which is substantially above the minimum and cannot be recruited at the minimum salary, an appointment at a rate not to exceed ten (10%) percent above the minimum may be authorized by the City Manager or designee. When unusual circumstances warrant it, the City Manager may approve appointments at rates in excess of ten (10%) percent above minimum.
When Lieutenant Gregora asked Chief Silk whether he had hired Rubino at the higher rate, the Chief said (with a smirk), “Yes, and I might do it again.” The Chief explained in his testimony that Rubino's experience and credentials made him substantially more qualified than the minimum qualifications. Rubino is the only member of the Department to be both a certified firefighter and a trained police officer. The Chief wrote a memo setting forth the “justification” for his action. Chief Silk was aware that Rubino was applying for positions with other jurisdictions, and he thought the increment would be necessary to have Rubino come to work with Boca Raton.
The City's new Director of Human Resources Sharyn Goebert testified that her research showed that during the last two fiscal years many employees in the other bargaining units had been hired at 10% above minimum. She did not know whether this was the case before these last two years, but she assumes it was so. On the other hand, newly-hired firefighters, with the one exception of Rubino, were all hired at the minimum salary. Goebert acknowledged that if there were a conflict between the City's Rules and the Collective Bargaining Agreement, the Agreement must prevail.
City Manager Leif Ahnell confirmed that the City retains the discretion to hire above the minimums under the Rules and Regulations. Concerning the 1997 incident, Ahnell emphasized that a department head cannot modify City policy. He explained that it was vital that the City be able to hire above the minimums: “Given the economic conditions, we could not function as a City” without this discretion.
In its case on rebuttal, President Gregora presented a document from the prior Human Resources Manager that stated that “any well-established past practice will prevail, in the absence of specific language,” and in either case — contract language or past practice — conflicting City Rules and Regulations cannot control.
A. The Union's Argument
The City violated the Agreement when it started a firefighter at 10% above the minimum provided in the contract. For over a 30-year period 160 firefighters have been hired at the minimum. As the City stipulated, it has always hired at the minimum for firefighters. That is the way the position is publicly announced. This practice was unequivocal, clearly enunciated, acted upon and readily ascertainable over a reasonable period of time. The evidence of the resolution of the 1997 dispute by the Fire Chief, the Human Resources Manager, the City Manager and the Union President confirmed this practice, and it is a very critical fact. The Union relied upon this express understanding in negotiating the current contract. Any Personnel Rule relied upon by the City is, of course, subordinate to the Agreement.
The appropriate remedy for the City's violation is to require the City to treat all firefighters the way it treated Robert Rubino, i.e., by raising their salaries by 10%. “This is the only remedy that will completely undo the horrors that the City has caused this bargaining unit ...”
The City acted fully in accordance with the Agreement and its Personnel Rules and Regulations when it hired Rubino at 10% above the minimum salary set forth in the Agreement. The contract only establishes the floor and does not prohibit the City, in appropriate cases, from exercising its power. The Agreement's language is clear and not ambiguous in this regard. Thus, any evidence of practice is parol evidence that is not admissible to vary its terms. The fact the City never exercised its power before does not mean it waived its right to do so here. And no one disputes that the City made a good decision in Rubino's case.
None of the provisions of the Agreement relied on by the Union support its novel position here. The Agreement does contain provisions for increasing salaries, but that does not implicate the starting salary. The Personnel Rules, however, clearly and explicitly authorize the action of the Fire Chief in this case. The Director of Human Resources and the City Manager both confirmed at the hearing that the Chief had this power. Even the Union acknowledged that the City had this power regarding all other City em ployees.
Even if the Arbitrator were somehow to decide that the City's action violated the Agreement, the remedy sought by the Union, to raise all bargaining unit members' salary by 10% is “punitive, unwarranted and in violation” of the Agreement. This would be a defacto change in the contract, something the Arbitrator is prohibited from doing.
In this case, the Union protests the action of the City of Boca Raton in paying a starting firefighter at a rate above the minimum rate set forth in the collective bargaining agreement. There are no material facts in controversy. The parties have asked their Arbitrator to determine whether the City's action violated the Agreement.
When an employer hires any employee, they make a bargain. The employee promises to perform certain tasks. In exchange, the employer promises to compensate the employee. Under a collective bargaining regime, the terms of that compensation are normally set forth in the collective bargaining agreement, typically accomplished with rate ranges for job classifications and a method for progressing up through various steps of the ranges. There is no standard formula, however. For example, in the sports and entertainment industries, individual salaries above a contract-guaranteed minimum are left for individual bargaining between the employer and the employee, normally represented by his or her agent. Contract provisions are always the product of bargaining.
In the public sector, there is an additional layer of possible regulation and complication. State statutes and local ordinances may have an impact on how the employment bargain is reached. Because public employees, like the firefighters of Boca Raton, provide vital services to the public, these issues of pay can be of paramount importance.
The City argues that the hiring of Mr. Rubino was fully in accordance with the promulgated Rules and Regulations of the City. There can be no question that, on their face, those Rules empower City officials to pay certain employees a higher starting rate. There is also no question that were Mr. Rubino hired as a non-bargaining unit employee, there would be no problem with the City's action. (There would also be no union around to grieve the action.) Since the City has acted this way for years with regard to the other two bargaining units, it is unlikely they would grieve this type of preferred treatment. In fact, looking at the unit of general employees, about half of the new employees in the other bargaining units were hired above the contract minimums.
The City is also correct when it argues that the claimed impact of the City's action — the effect on employee morale in the department — is not relevant. While obviously poor morale is important to the City, it cannot convert what it did into a contract violation. Nor is it relevant whether the City was wise to act as it did. If the City had the power under the Agreement to start Mr. Rubino at 10% higher than the minimum rate, then the grievance must be denied, whatever the consequences of the City's action. It is not an arbitrator's job to tell a City what it should have done, only to order the City to do what it was required to do under the parties' contract.
There was much discussion at the hearing about the City's prior practice regarding starting rates. For decades — with only one exception, Mr. Rubino — the City has hired new firefighters at the minimum contract rate and not a penny more. The Union says this is a binding practice the City is required to continue to follow.
There are instances involving compensation matters when an employer may be obligated to continue to act as it has in the past. The “Christmas turkey” is a perfect example. If the employer has consistently given its employees the bird at the end of the year, its repeated generosity may have ripened into a binding obligation, rather than a purely discretionary gift. “It's an emolument having a dollar value like wages which is a part of the Contract.” Sani-Clean Serv. , 63 L.A. (BNA) 810 , 813-814 (1974) (Dyke, Arb.)
That analysis does not apply here because we do have contract language on point . Article 36 speaks to wages and uses the terms “minimum” and “maximum.” The consistent practice of the parties over decades explains what they meant by the term “minimum” in the IAFF contract. That practice shows that “minimum” meant “starting salary.” That was the way that job openings were announced and advertised. That is the way they have been filled “forever.” The past practice helps us understand the parties' intention in using the terms they chose for their Agreement.
The fact that under other contracts this same term had different meanings — that minimum salary meant the normal hiring rate except if the department head determined an increment was justified — does not help in interpreting the IAFF Agreement. There is no evidence the City ever brought its interpretation of these terms to the bargaining table or that the IAFF knew this was the practice elsewhere. Certainly, the contract language was never changed or clarified or discussed.
What then of the City's Rules and Regulations? We know that the City has used this discretionary power to hire at up to 10% above the minimum rate in other bargaining units and with non-bargaining unit employees. (In fact, review of the documents compiling this information suggests that an increment above the minimum was almost the rule, rather than the exception.) But that has never been the case with firefighters.
Under the Agreement (which is adopted by the City Council and has the power of an ordinance), when there is a conflict between the Agreement and an ordinance, the Agreement prevails. Based on the compelling evidence supporting an interpretation of the Agreement that mandates hiring at the minimum rate, the Rules and Regulations discretion must give way. Otherwise, the Agreement is rendered a nullity.
The Union requests by way of remedy that all bargaining unit employees be treated as Mr. Rubino was — that is, to be retroactively favored with a 10% increase. It is understandable why the Union makes that request, but there is no basis for such a remedy in the Agreement.
The Arbitrator must remedy the contract violation by returning the parties to the position they would have been in had the contract not been violated. The City wrongfully paid Mr. Rubino. It shall now readjust his salary to the level it would have been had he been hired at the minimum.
Of course, the City has received Mr. Rubino's services for over a year at the higher rate it offered him. There is no basis for having him return any of that extra compensation. He did nothing wrong.
The grievance is granted. The City violated the Collective Bargaining Agreement when it hired Robert Rubino at 10% above the minimum provided in the Agreement. By way of remedy, the City shall revise Mr. Rubino's pay rate to the level it would have been had he been hired at the appropriate minimum rate.
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