While workplace safety is generally a mandatory subject for collective bargaining, labor boards have struggled to deal with whether staffing issues – which may have an impact on safety – are themselves negotiable. Most labor boards have found that peace officer staffing issues are not negotiable, and that where firefighter staffing measured per piece of equipment is bargainable, broader firefighter staffing issues (firefighters per shift, or per population) are not.
A recent decision from Washington’s Public Employment Relations Commission illustrates this trend. The case involved the City of Everett and Local 46 of the IAFF. For many years, the collective bargaining agreement contained a minimum shift staffing requirement. In bargaining a successor to the 2012-2014 collective bargaining agreement, Local 46 proposed to increase the minimum shift staffing levels from 25 to 35.
The City did not agree to the proposal and, during bargaining and mediation, notified the Union that it viewed shift staffing levels as a permissive or non-mandatory subject of bargaining. When impasse was declared in the bargaining, PERC was required to decide whether the proposal to increase shift staffing could be referred to binding arbitration.
PERC began its lengthy opinion by noting that an “interest arbitration eligible party can bargain to impasse and seek interest arbitration on mandatory subjects of bargaining. Interest arbitration eligible parties are also free to discuss and negotiate permissive subjects of bargaining, but each party is free to bargain or not to bargain and to agree or not to agree about those permissive subjects. An interest arbitration eligible party commits an unfair labor practice violation when it seeks interest arbitration on a permissive subject of bargaining.
“Our decisions that discuss firefighter staffing generally examine the specific issue to determine whether it relates to shift staffing, equipment staffing, or both. Shift staffing deals with how many total employees are on duty during any particular shift. Equipment staffing is how many employees are assigned to a particular piece of equipment, such as a fire truck or ladder. Generally, equipment staffing has more often been found to be mandatory while shift staffing has been found to be permissive. In mixed cases where shift staffing and equipment staffing are both implicated, employee safety interests have predominated with the more direct safety impacts of equipment staffing predominating.
“In the present case, the Union’s proposal is to modify shift staffing levels. The number of staff on duty (shift staffing) has been found to be a management prerogative. The fact that the Union’s proposal in this case relates solely to shift staffing leans heavily towards it being a management prerogative and therefore a nonmandatory subject of bargaining.”
PERC did acknowledge that shift staffing could be mandatory for bargaining if it had a “demonstrated direct relationship to employee workload and safety.” PERC also acknowledge that “firefighting is a dangerous profession with many aspects of the job impacting safety and health.”
In the end, though, PERC held that “the City has a strong managerial prerogative in being able to determine shift staffing levels. This prerogative has long been acknowledged by PERC and courts. This is consistent with the fact that employers are tasked with determining their mission, setting service levels, and budgeting to provide those services. The Union established that firefighters have safety interests related to shift staffing levels. However, the evidence regarding those interests are largely general in nature and do not sufficiently demonstrate a direct relationship between those safety interests and shift staffing levels.
“The factors cited by the Union do not show a ‘demonstratedly direct’ relationship to safety sufficient to shift the balance in the Union’s favor and make the shift staffing proposal a mandatory subject of bargaining. Apply a balancing test, the City’s managerial prerogative in setting shift staffing levels outweighs the employees’ interests in workload and safety related to shift staffing levels. Therefore, the Union’s shift staffing proposal is a nonmandatory subject of bargaining and the Union committed an unfair labor practice when it insisted on submitting that proposal to interest arbitration.”
City of Everett, 2017 WL 1423520 (Wash. PERC 2017).