HomeMy WebLinkAbout14- Petitioner's Initial Brief to Board of Personnel Appeals / City's Opening Brief to the Board of Personnel AppealsJason S. Ritchie
Michelle M. Sullivan
Holland & Hart LLP
401 North 31st Street, Suite 1500
P. O. Box 639
Billings, MT 59103-0639
Telephone: 406-252-2166
Facsimile: 406-252-1669
Attorneys for Petitioner
STATE OF MONTANA
BEFORE THE BOARD OF PERSONNEL APPEALS
IN THE MATTER OF UNIT CLARIFICATION NO. 5-2013:
CITY OF BOZEMAN,
Petitioner,
u
INTERNATIONAL ASSOCIATION
OF FIRE FIGHTERS, LOCAL 613,
Respondent.
Case No. 1821-2013
PETITIONER
CITY OF BOZEMAN'S
INITIAL BRIEF TO BOARD
OF PERSONNEL APPEALS
The City of Bozeman (hereafter, the "City" or "Bozeman") hereby submits its Initial
Brief to the Board of Personnel Appeals, pursuant to the Notice of Oral Argument and
Scheduling Notice dated July 21, 2014.
FACTUAL BACKGROUND[
The history of the Bozeman Fire Department and the growth of the City provides the
backdrop for this unit clarification action. Back in the early 1980s, the City had only a single,
full-time fire station. In late 1984, Chuck Winn (former Bozeman Fire Chief and current
Assistant City Manager) along with two other firefighters were hived so that a second fire station
— Fire Station 2 — could be open full-time to serve the needs of a growing community. By 2006,
the Fire Department identified the need for a third fire station. A staffing and location study was
commissioned, referred to as the Fire Department Master Plan, which not only verified the need
for a third fire station, but laid out the process for funding, building, and staffing that station.
The following year, the City's voters passed a mill levy that provided the funding for the
personnel to staff a new station. Bozeman's third fire station opened in 2009. Along with the
new station came a 50% increase in the number of firefighters working for the Fire Department,
bringing the total number of firefighters to 36. As both Winn and Deputy Chief Greg Megaard
explained in their testimony at the hearing in this matter, it was becoming increasingly difficult
for three chief -level officers working weekdays from 8:00 a.m. to 5:00 p.m. to manage 36
firefighters working 48-hour shifts every day of the year. For example, Deputy Chief Megawd
had established a practice of having morning calls between the three on -shift captains and
himself as a means of opening the communication lines every morning, but unfortunately, time
constraints often prevented Megaard from participating in those calls. Deputy Chief Megaard
' The facts recited below were taken from the testimony presented at the hearing in this matter.
Citations to relevant portions of the transcript are provided in the Argument section of this Brief.
also testified that he was unable to visit and inspect the stations and equipment as often as he
wanted to. Regular inspections of equipment and gem promote safety. For example, regular
inspections might reveal that a face piece is damaged or a valve is missing or broken. Battalion
Chief Keith Johnson described how Deputy Chief Megaard simply did not have the time to catch
everything, and that now, the Battalion Chiefs are able to dedicate appropriate time and
consideration to safety, training, and quality control issues.
To provide the additional and necessary chief -level supervision to the Fire Department,
additional funding was secured by the City to hire one Battalion Chief in fiscal year 2013, and
two more Battalion Chiefs in fiscal year 2014. Those positions were filled by Keith Johnson,
who was promoted to the position of Battalion Chief on June 13, 2013, and Mark Criner and
John Bos, who were promoted to Battalion Chiefs on August 26, 2013.
Before the Battalion Chiefs were hired, Deputy Chief of Operations Megaard supervised
the nine captains of the Fire Department who, in turn, supervised three other firefighters each.
Now, each Battalion Chief has three captains that report to him, and the three Battalion Chiefs in
turn report directly to the Deputy Chief of Operations. The Battalion Chiefs each have a span of
control over three engine companies. What's more, unlike the Deputy Chief, the Battalion
Chiefs are able to supervise their captains around the clock, because the Battalion Chiefs work
alongside their battalions. The Battalion Chiefs are responsible for ensuring staffing
requirements me met, their crews and equipment are safe and ready to respond, and all calls are
covered effectively. They are responsible for discipline of their crews, and have demonstrated
their ability to effectively manage their crews in that regard since becoming Battalion Chiefs.
Additionally, as Chief Shrauger testified, Battalion Chiefs are charged with responding— and
have responded — to grievances filed under the Collective Bargaining Agreement by a captain.
The Battalion Chiefs are charged with many other duties, as well. One of the Battalion
Chiefs will be assigned to be the hiring supervisor during the next firefighter hiring process, a
position previously held by the Deputy Chief of Operations. Battalion Chief Johnson acted in
this capacity last summer when the Department selected the new captains to replace Battalion
Chiefs Bos and Criner after they were promoted. The Battalion Chiefs are also each in charge of
certain areas of the budget, ensuring that items needed by the Fire Department are included in the
annual budgetary requests. For the Collective Bargaining Agreement covering the period
between 2013 and 2015, Chuck Winn was the lead negotiator for the City. Since the hiring of
the Battalion Chiefs in fiscal years 2013 and 2014, there has been no contract negotiations with
the Union. Winn anticipates having a similar role in the next round of contract negotiations, and
intends to have the Battalion Chiefs be a part of the City's management team and have them at
the bargaining table.
As several witnesses testified at the hearing, the greatest benefit resulting from the hiring
of the Battalion Chiefs is the Department's ability to have 24/7 command coverage and
management of the organization. The Battalion Chiefs are responsible for the day-to-day
operations of the Fire Department. As Chief Shrauger explained, the City of Bozeman now has a
chief -level officer on duty at a station around the clock, managing the Fire Department and
readily responding with the crews when they deem it necessary. Before the Battalion Chiefs
were hired, the Chief or Deputy Chief would respond from home to calls outside of their normal
working hours, which meant that a chief -level officer would not arrive on -scene until at least
10 or 15 minutes after the first crew had arrived. Now, the Battalion Chief arrives at the same
time as — or sometimes even before — the first crew arrives on -scene. Before the Battalion
Chiefs were hired, the Chief and Deputy Chief would have to coordinate their vacations, who
could be out of town for a weekend, and even who could go out for dinner with friends or family.
With the Battalion Chiefs providing 24/7 chief -level supervision of the Fire Department, the Fire
Chief and the Deputy Chief of Operations can focus on long-term goals and strategy for the Fire
Department, and not have to constantly coordinate round-the-clock management and supervision,
as they had previously done.
Operationally, as Deputy Chief Megaard explained, the Battalion Chiefs are responsible
for their battalion during the 48 hours that their battalion is on shift. The Battalion Chiefs must
know their people and their capabilities. In knowing that, the Battalion Chiefs are able to judge
which calls they will personally need to respond to with their battalion, and which calls their
captains on duty can handle alone.
On a day-to-day level, Battalion Chief Mark Criner explained at the hearing that the
Battalion Chiefs are the highest level of authority in the Department from 5:00 p.m. to 8:00 a.m.
and on weekends. Battalion Chief Criner testified about how the Battalion Chief positions are
bringing much-needed consistency to the Department by having additional chief -level officers
working directly with the battalions. He explained the discretion each Battalion Chief has in
commanding an incident, and how such decisions go far beyond merely following written policy.
Battalion Chief Johnson testified about how he decides whether to take command of an
incident, and when to allow a captain to keep command, and how he exercises that discretion.
Battalion Chief Johnson also talked about the importance of the Battalion Chief position, given
the Fire Department's needs for accountability, safety, and having the 24/7 command staff on
scene. Battalion Chief Johnson talked about the improvements in the maintenance of personal
protective equipment since the addition of the Battalion Chiefs because there is chief level
supervision to make sure the maintenance gets done on a consistent basis.
Battalion Chief John Bos testified that before the creation of the Battalion Chief position,
the Fire Department operated like nine separate and different fire departments, as opposed to one
cohesive unit. With the hiring of three Battalion Chiefs, each battalion is now operated
consistently, and the three Battalion Chiefs are working together to provide even more
consistency across the entire Fire Department. As Battalion Chief Bos noted, the Battalion Chief
positions are critical to bringing that consistency to the Fire Department. Battalion Chief Bos
also offered testimony about the discretion the Battalion Chiefs have in disciplining their crews.
The history of the bargaining unit of the City's firefighters is central to this case as well.
Captain Matt Norby testified on behalf of the union that his review of archived union records
revealed that the City's firefighters were first represented by the International Association of
Firefighters union ("IAFF") in February 1939, nearly 75 years ago, as reflected not only in the
letter from the IAFF admitted as Exhibit B in this case, but also on the charter admitted as
Exhibit 7. Captain Norby further testified that at some point prior to the mid -1960's, the City's
firefighters ended their relationship with the IAFF, a fact that is also reflected in hearing Exhibits
C and D. Mr. Winn testified that during his tenure with the Fire Department starting in 1984,
whether to again affiliate and be represented by the IAFF was a "hot topic," with at least one
vote of the City's firefighters that he remembered ending in a decision not to be represented by
the IAFF at that time. Winn recalls that the vote not to affiliate and be represented by the IAFF
was based on the firefighters' desire to maintain local control, with the City's firefighters
wanting to represent their own interests, without any pressure from the national association.
In 1999, the City's firefighters eventually voted to re -affiliate with the IAFF, as reflected
on Exhibit 6, the 1999 charter from the IAFF. Since that time, the bargaining unit has been
represented by the IAFF.
Over the years, the recognition clause within the various collective bargaining
agreements has also changed. Captain Norby testified that at different time periods, the assistant
chiefs were sometimes in the bargaining unit (as reflected on hearing Exhibit D) and sometimes
outside of the bargaining unit. Assistant City Manager Winn testified that when he joined the
Fire Department in 1984, there were four positions that were excluded from the bargaining unit:
(1) the Fire Chief, (2) the Assistant Chief; (3) the Training and Maintenance Officer, and
(4) the Fire Marshall. The training officer is now included in the bargaining unit.
Another change occurred in July 2001, when the fire and police departments were
reorganized and put together under a "public safety" umbrella. After that reorganization, only
two members of the Fire Department were excluded from the bargaining unit: (1) the Assistant
Director of Public Safety/Fire Operations and EMS Services; and (2) the Assistant Director of
Public Safety/Inspections. In July 2005, the Fire Department returned to a more traditional
organizational structure, and since then, there have been three members of the Fire Department
excluded from the bargaining unit: (1) the Fire Chief; (2) the Deputy Chief of Operations; and
(3) the Deputy Chief— Fire Marshal. These three positions are undisputedly not part of the
bargaining unit, despite the fact that the recognition clause still reflects the operational structure
that was in place between July 2001 and July 2005.
PROCEDURAL HISTORY
The City commenced this unit clarification action with the filing of a Petition for Unit
Clarification on June 5, 2013, seeking to have the Board of Personnel Appeals enter an order
finding that the position of Battalion Chief is properly excluded from The IAFF Local 613 —
Bozeman Firefighters (the "IAFF Local") bargaining unit under the CBA, as the position is a
management, supervisory, and confidential position under Montana Code Annotated
§ 39-31-103. The IAFF Local had challenged the City's exclusion of the Battalion Chief
position from the bargaining unit.
The parties engaged in discovery and the hearing on this matter was conducted on
February 13, 2014, and Much 5, 2014. The parties submitted their Post -Hearing Briefs
thereafter. On June 6, 2014, the Hearing Officer issued his Findings of Fact, Conclusions of
Law, and Recommended Order (hereafter, the "Rec. Order"), recommending that the Board of
Personnel Appeals deny the City's request for unit clarification and for exclusion of the Battalion
Chief position from the bargaining unit. Despite the fact that (1) the bargaining unit has changed
at least three times since the 1973 enactment of the Montana Public Employees Collective
Bargaining Act (the "Act"), and (2) the representation of the bargaining unit has also changed
during that time, the Hearing Officer based his recommendation exclusively on his conclusion
that the brand new Battalion Chief positions — created in 2013 — were grandfathered into the
bargaining unit that existed prior to 1973, pursuant to the grandfather provision at Mont. Code.
Ann. § 39-31-109. See Rec. Order at p.11, 13 2
The City of Bozeman filed its timely Objections to the Findings of Fact, Conclusions of
Law, and Recommended Order on June 30, 2014. The oral argument before the full Board of
Personnel Appeals is scheduled for October 16, 2014. This Initial Brief is provided pursuant to
A.R.M. 24.26.244 as a written memorandum in aid of the scheduled oral argument. For the
reasons set forth below, the City asks the Board to conclude that the grandfather clause of the
2 Because the Hearing Officer reached his conclusion on the application of the grandfather clause
and did not make any legal conclusions as to whether the Battalion Chiefs are supervisory,
managerial, or confidential employees (see Rec. Order at p. 6, n.2) the City has limited its
arguments below to those factual findings and legal conclusions that relate to the application of
the grandfather clause. The City hereby reserves its objections to any factual findings that the
Hearing Officer has made or may make regarding whether the Battalion Chiefs are supervisory,
managerial, or confidential employees.
Act is not applicable to the Battalion Chief positions, and to remand this matter to the Hearing
Officer for further consideration pursuant to the Board's direction, to conduct any further
proceedings as necessary, and to conform his proposed recommendation to the direction
provided by the Board, pursuant to A.R.M. 24.26.224.
ARGUMENT
The conclusion that the Battalion Chiefs should be part of the bargaining unit based on
the grandfather clause if fundamentally flawed. Section 39-31-109 reads, in full, as follows:
Nothing in this chapter shall be construed to remove recognition of
established collective bargaining agreements already recognized or
in existence prior to July 1, 1973.
The collective bargaining agreement that was in place between the City of Bozeman and
its firefighters on July 1, 1973, did not include the position of Battalion Chief as either in the
bargaining unit or out of the bargaining unit, because the position of Battalion Chief did not exist
at that time. It was not until some 40 years later, in the summer of 2013, that Battalion Chiefs
were first employed by the City of Bozeman. Furthermore, the composition of the bargaining
unit itself has changed several times since 1973. And finally, the representation of the
bargaining unit has changed — following a vote of the bargaining unit membership — from what
was local representation to representation by the IAFF. Thus, to conclude that a position — which
did not even exist until decades after the effective date of the Act — is somehow "grandfathered"
into a bargaining unit that has changed in both composition and representation — is a conclusion
that is not supported by the law.
The purpose of the Montana Public Employees Collective Bargaining Act is to
"encourage the practice and procedure of collective bargaining." Mont. Code Ann. § 39-31-101.
The intent of the grandfather clause was to prohibit an employer from excluding from the
bargaining unit a position that had previously been included in the bargaining unit prior to 1973,
simply because the statute changed. Mont. Code Ann. § 39-31-109. The effect of the Hearing
Officer's decision here, however, is to freeze the management structure of the City of Bozeman
as of 1973, thereby prohibiting a growing City with a growing workforce from hiring additional
managerial, supervisory, or confidential employees to lead an ever-expanding number of
workers. This result turns the grandfather clause on its head, hampers the future growth of
public workforces, and could ultimately limit the services public employers are able to
effectively provide their citizens.
I. THE CITY OBJECTS TO FINDING OF FACT #2.
The City objects to Finding of Fact ("FOF") #2 on the basis that it is not supported by the
testimony given at the hearing. The first sentence of FOF 42 states that "[p]rior to 2003, the
written collective bargaining agreements excluded the positions of `chief and `deputy chiefs
[plural].' " See Rec. Order at p. 2, 12 (emphasis added). In fact, testimony from IAFF Local
representative Matt Norby established that sometime prior to 1970, assistant chiefs were actually
included as part of the bargaining unit, which would have left the Fire Chief as the single
position outside of the bargaining unit. See Transcript of Proceedings, relevant pages attached
hereto at Tab 1, at 374:5 — 374:10. Also according to Norby, the 1976 collective bargaining
agreement excluded the position of "chief' and the position of "assistant chief [singular],"
meaning that as of 1976, there were two positions from the Fire Department that were not
covered by the collective bargaining agreement. See Trouser. at 366:24 — 367:10, at Tab 1.
Moving forward in time approximately eight years, Chuck Winn (who spent 24 years with the
Bozeman Fire Department before becoming Assistant City Manager) testified that when he was
hired as a firefighter for the City of Bozeman, there were four positions excluded from the
bargaining unit: fire chief, assistant chief, training and maintenance officer, and fire marshal.
See Transcr. at 36:25 — 37:6, at Tab 1. Later, the positions excluded from the bargaining unit
were the chief and an unspecified number of deputy chiefs. Clearly, throughout the history of
the Bozeman Fire Department, there have been several changes in both the number and type of
positions excluded from the bargaining unit prior to 2003. The Board of Personnel Appeals
should remand the Recommended Order to the Hearings Officer for further consideration, and
direct him to revise this Finding of Fact to reflect that bargaining agreements prior to 2003 varied
significantly over the years in their inclusion and exclusion of not only chief -level positions, but
also of other positions within the Department.
The second sentence of FOF #2 is likewise not supported by the evidence. The Hearing
Officer indicated that in 2001, there was a `consolidation" of the police and fire departments,
and that the management positions in the former fire department were `renamed," a
characterization that does not accurately reflect the evidence regarding what happened with these
two departments m2001. See Rec. Order at p.2, $ 2. The witnesses described the 2001
combination of these two departments as a `reorganization" of the police and fire departments
into a single "Department of Public Safety." See Transcr. at 14:17 — 15:l 1, at Tab 1. The three
management positions that the fire department had previously enjoyed (one fire chief and two
deputy chiefs) were reduced to two: an Assistant Director of Public Safety/Inspections, and an
Assistant Director of Public Safety/Fire Operations and EMS Services. There was no longer a
Fire Chief heading up the fire department; rather, the two "Assistant Directors of Public Safety"
were on the same level, both reporting directly to the Director of Public Safety, who oversaw
both police and fire services at that time. Accordingly, it was much more than a simple "name
change" that occurred in 2001; there was a significant reorganization of the police and fire
departments, and a wholly different management structure was put into place. Furthermore, the
importance to the analysis here is that prior to the reorganization, the bargaining unit excluded
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three positions, and following the reorganization, it excluded only two. This change to the
bargaining unit renders the grandfather provision of the Act inapplicable. The Board of
Personnel Appeals should direct the Hearings Officer to revise this Finding of Fact to reflect the
significance of the change to the bargaining unit of the Fire Department.
II. THE CITY OBJECTS TO FINDING OF FACT #3. -
The Hearing Officer's next finding is that in 2005, the City "went back to using the titles
of fire chief and deputy chiefs." See Ree. Order at p.2, ¶ 3. Again, the Hearing Officer's
characterization that this was a mere change in titles does not capture either the magnitude or the
significance of the decision to revert to the earlier structures of both the police and fire
departments. While the "Assistant Director" titles were no longer used after 2005, the major
change in 2005 was that the fire department returned to a three-person management team instead
of two, with a Fire Chief, a Deputy Chief of Operations, and a Deputy Chief — Fire Marshall.
See Transcr. at 43:17 — 43:23, at Tab 1. This resulted in a change — again — to the bargaining
unit, from the exclusion of two members of the Fire Department to the exclusion of three. The
Board of Personnel Appeals should direct the Hearings Officer to revise this Finding of Fact to
reflect the significance of the changes made to the bargaining unit of the Fire Department in
2005.
III. THE CITY OBJECTS TO FINDING OF FACT #5.
In FOF #5, the Hearing Officer finds that the local organization of the City's firefighters
has "consistently been known as the Bozeman Fire Fighters," but this finding is not supported by
the evidence. In 1939, the bargaining group was known as Local No. 613 of the International
Association of Fire Fighters ("IAFF"). See Exhibit B, attached hereto at Tab 2. At some point
prior to 1968, the City's firefighters dropped their affiliation with the IAFF, and instead, were
represented by the "Fire Relief Association" (not "The Bozeman Fire Fighters") before the City
11
Commission in July 1968 to request a pay increase for the City's firefighters. See Exhibit E,
attached hereto at Tab 3. Later that same month, "representatives of the Fire Relief Association"
were once again before the City Commission, agreeing to a proposed salary increase. See
Exhibit F, attached hereto at Tab 4.
When, in 1999, the City's firefighters voted to have the IAFF exclusively represent them
in collectively bargaining (after having voted not to do so in earlier years in hotly contested
elections (see Transcr. at 11:10 - 12:19, at Tab 1)), the City's firefighters received a Certificate
of Affiliation from the IAFF that reads as follows:
[The IAFF grants this Certificate of Affiliation to the named
members of the fire department] and to their successors legally
qualified to constitute the UNION herein named and known under
the title of Bozeman Fire Fighters Association Montana Local 613
be it therefore known that under the authority in us vested by the
constitution, laws and usages of the INTERNATIONAL
ASSOCIATION OF FIRE FIGHTERS we have caused to be
issued to the petitioners and their successors this CHARTER
for the institution of a LOCAL FIRE FIGHTERS UNION and
the Union being dulv formed, is empowered and authorized to
initiate unto its membership any person or persons in accordance
with its own laws, and to conduct the business affairs of said
Union in compliance with the best interest of the fire fighters in
general. The autonomy of the Union is hereby ordained and
secured.
Provided, that said Union do conform to the CONSTITUTION,
LAWS and REGULATIONS of the INTERNATIONAL
ASSOCIATION OF FIRE FIGHTERS and in default therefore, or
any part, this Certificate of Affiliation may be suspended or
revoked according to the laws of this Association. And should the
said LOCAL FIRE FIGHTERS' UNION be dissolved, suspended,
or forfeit this Certificate of Affiliation, then the person to whom
this Certificate of Affiliation is granted, or their successors, bind
themselves to surrender the same with such other property as shall
properly belong to this Association, and farther, in consideration of
the due performance of the above, the INTERNATIONAL
ASSOCIATION OF FIRE FIGHTERS does hereby bind itself
to support the said LOCAL FIRE FIGHTERS' UNION in the
exercise of all its rights, privileges and autonomy as an affiliated
Union.
12
See Exhibit 6, attached hereto as Tab 5 (bold and underlined emphasis added). After this time,
the IAFF was recognized as the exclusive representative in the Collective Bargaining Agreement
with the City.
The Bond of Personnel Appeals should direct the Hearings Officer to revise this Finding
of Fact to reflect that the City's firefighters have been known — at various times since 1939 — as:
Local No. 613 of the International Association of Fire Fighters; the Fire Relief Association; and
the Bozeman Fire Fighters Association Montana Local 613.
IV. THE CITY OBJECTS TO THE HEARING OFFICER'S ANALYSIS
CONTAINED IN THE "DISCUSSION" SECTION OF THE FINDINGS OF FACT,
CONCLUSIONS OF LAW, AND RECOMMENDED ORDER, AND OBJECTS TO
CONCLUSION OF LAW ii2.
The Hearing Officer's analysis of and ultimate conclusion that the statutory grandfather
provision applies here misses the mark for two reasons. First, the Hearing Officer's conclusion
exempts from the requirements of the Act a position that did not even exist until 40 years after
the effective date of the Act. Second, the representation of the bargaining unit has changed since
1973, and for that reason the grandfather provision cannot apply.
A. The Grandfather Clause Only Applies to Positions in Existence on the
Effective Date of the Act.
The Hearing Officer has mistakenly interpreted the grandfather clause of Mont. Code
Ann. § 39-31-109, to exclude the Battalion Chief position from the provisions of the Montana
Public Employees Collective Bargaining Act. In interpreting a statute, including § 39-31-109,
the duty of the tribunal is to give effect to the underlying legislative intent. See Hohenlohe v.
State, Dept. of Natural Resources and Conservation, 357 Mont. 438, 240 P.3d 628 (2010).
"Statutory construction `should not lead to absurd results if a reasonable interpretation can avoid
it."' Id, citing Bitterroot River Protective Assn v. Bitterroot Conserv. Dist., 2008 MT 377, ¶ 72,
346 Mont. 507,198 P.3d 219. With grandfather clauses in particular, when the scope is
13
ambiguous, the tribunal should `construe it strictly against the party who seeks to come within its
exception." Regents ofthe Univ. of New Mexico v. New Mexico Fed'n of Teachers, 962 P.2d
1236 (N.M. 1998), citing Teague v. Campbell County, 920 S.W.2d 219, 221 (Tenn.Ct.App.
1995).
The Hearing Officer, by contrast, has included within the protections of the grandfather
clause a position that was not even in existence at the time of the effective date of the Act. But
by the tenants of statutory construction and even the very definition of a "grandfather clause,"
§ 39-31-109 cannot exempt the newly -created Battalion Chief position from the substantive
provisions of the Montana Public Employees Collective Bargaining Act:
[A grandfather clause is a] provision that creates an exemption
from the law's effectfor something that existed before the law's
effective date; specif, a statutory or regulatory clause that exempts
a class of persons or transactions because of circumstances
existing be ore the new rule or regulation takes effect.
Black's Law Dictionary (9th ed. 2009) (emphasis added).
The Hearing Officer ignores the simple fact that for the Bozeman Fire Department, the
Battalion Chief is a new position, and accordingly did not exist before the Act's effective date.
Instead, the Hearing Officer relies on a case that went to an administrative hearing shortly after
the effective date of the Act, where the positions at issue had existed at the time of the passage of
the Act. See Rec. Order. at 7, citing City of Billings v. Billings Firefighters Local 521, 200
Mont. 421, 651 P.2d 627 (1982). In City of Billings, the City — during labor negotiations in 1977
(just four years after the passage of the Act) — attempted to exclude not only battalion chiefs, but
also specialty officers and fire captains from the bargaining unit. City of Billings, 200 Mont. at
425, 651 P.2d at 629. The "bargaining unit" that existed at the time the Act was passed included
all of these positions. Thus, the application of § 39-31-109 to these already -established positions
was not only appropriate, but necessary under the provisions of the Act.
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That is simply not the case here. The first Battalion Chief for the Bozeman Fire
Department was hired in 2013, which was 40 years after the effective date of the Act. Under no
logical or reasonable interpretation of § 39-31-109 should the newly -created Battalion Chief
position be exempt from the provisions of the Act. Broadly applying the grandfather clause ad
infinitum to every new position of every public employer that had a bargaining unit in existence
in 1973 effectively renders the Act a nullity, and seriously restricts the ability of a public
employer to effectively manage the growth of its workforce. That cannot be what the legislature
intended when it included a grandfather clause as part of the Act, and such a construction is
therefore improper.
Furthermore, the Hearing Officer's proposed application of the grandfather clause leaves
the decision of whether a position should be in or out of a bargaining unit to mere titles, without
conducting a proper analysis of whether a position is actually supervisory, managerial, or
confidential, as the legislature intended. In determining that every position "below the rank of
chief and assistant chief' that might ever be created in the Bozeman Fire Department must be
part of the bargaining unit, the Hearing Officer is able — without father, reasoned analysis — to
conclude that Battalion Chiefs belong in the bargaining unit. However, the Hearing Officer
would be bound to reach the opposite conclusion had the City of Bozeman simply named these
new positions "assistant chiefs" or "deputy chiefs" instead of Battalion Chiefs. But neither
conclusion should be so easily reached. This is a new position that deserves a thorough, well -
reasoned analysis as to whether it is supervisory, managerial, or confidential, and not a part of
the bargaining unit. Accordingly, the Board of Personnel Appeals should determine that the
grandfather clause is inapplicable to the Battalion Chief positions, and should direct the Hearings
Officer to conduct any additional proceedings as necessary to determine whether the position of
15
Battalion Chief is supervisory, managerial, or confidential, and therefore not a part of the
bargaining unit, and revise his Recommended Order in accordance with such a determination.
B. The Representation of the Firefighters' Bargaining Unit Changed in 1999,
So The Grandfather Clause No Longer Applies.
The Hearing Officer also erroneously found that the collective bargaining unit of the
City's firefighters has been in existence since 1939, and based on that premise, the Hearing
Officer concluded that the grandfather clause in Mont. Code Ann. § 39-31-109 applies to this
case. This is incorrect under the law.
As set forth above, the grandfather provision of the Act reads as follows:
39-31-109. Existing collective bargaining agreements not affected. Nothing in
this chapter shall be construed to remove recognition of established collective
bargaining agreements already recognized or in existence prior to July 1, 1973.
Mont. Code Ann. § 39-31-109 was examined by the Montana Supreme Court in the case
entitled, In the Matter of Unit Clarification No. 6-80, MPEA v. Dept. of Admin, Labor Relations
Bureau, 217 Mont. 230, 703 P.2d 862 (1985). In that case, employees at the Montana State
Prison had been represented in collective bargaining by the American Federation of State,
County, and Municipal Employees, AFL-CIO prior to November 1979. But that representative
was decertified and replaced with the Montana Public Employees Association ("MPEA") in
November 1979. Following the change in the exclusive representation of the employees, the
Labor Relations Bureau of the Montana Department of Administration filed a petition for unit
clarification, seeking a determination that certain classes of employment positions at the prison
were "supervisory employees" that should be excluded from the bargaining unit. 217 Mont. at
231, 703 P.2d at 863.
In Unit Clarification No. 6-80, the Board of Personnel Appeals held that the grandfather
clause does not apply when there has been an election and certification of a new exclusive
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representative in what may otherwise have been a grandfathered agreement and bargaining unit.
217 Mont. at 233, 703 P.2d at 864. On appeal, the Board of Personnel Appeals argued that "a
change of exclusive representation nullifies the applicability of the grandfather clause as to
preserving the unit," and that "the term `recognized,' in its technical labor vernacular, applies
only to representatives and it therefore follows that, because units are not `recognized,' the
legislature did not intend to preserve units by enacting the grandfather clause." Id. (emphasis
added).
When the matter was taken up by the District Court, and later by the Supreme Court, both
agreed with the Board's analysis:
This interpretation of the law is rational. The word "recognized" as used in
§ 39-31-109, MCA, is a term of art used in labor as referring to a representative.
The BPA decision also is in line with relevant portions of the acts set forth above
which, in effort to remove causes of strife and unrest, exclude supervisory
employees from bargaining units. We hold that the District Court did not eir in
affirming the agency decision.
Id. (emphasis added).
The same rationale must hold true here. Sometime prior to the Act's 1973 effective date,
the City's firefighters ended their prior affiliation with the IAFF, and in the 1960's were
"bargaining" with the City in the name of the Fire Relief Association. See Exhibits E and F,
attached hereto at Tabs 3 and 4, respectively. The bargaining unit was under the exclusive local
control of the City's firefighters, without any support, assistance, or representation from a
national labor organization. For more than thirty years, the bargaining unit remained unaffiliated
with and not represented by the IAFF. Throughout the late `80's and `90's, the topic of having
IAFF represent the firefighters was often raised by members of the Fire Department, and was
even put to a vote. See Transcr. at 11:10 —12:19, at Tab 1. At least once, the City's firefighters
voted against representation by the IAFF. Id Ultimately, in 1999, the City's firefighters voted
17
to have the IAFF represent them, and The IAFF Local 613 is now recognized by the City of
Bozeman as being the exclusive bargaining agent for the firefighters. See Transcr. at 377:3 —
377:6, at Tab 1.
The recognition clause of the Collective Bargaining Agreement states that the Employer
(the City of Bozeman) "recognizes the Union [expressly defined as The IAFF Local 613 —
Bozeman Firefighters] as the exclusive bargaining agent for all combat firefighters and
uniformed day personnel" of the department. See Exhibit 1, attached hereto at Tab 6 (emphasis
added). Indeed, the language of the IAFF Certificate of Affiliation (set forth in full above) is
demonstrative of the fact that a new union, and thus a new bargaining unit with a new
representative, was "duly formed" upon the firefighters' decision to have the MME exclusively
represent them:
[The INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS
has] caused to be issued to the petitioners and their successors this
CHARTER for the institution of a LOCAL FIRE FIGHTERS
UNION, and the Union being duly formed, is empowered and
authorized to initiate into its membership any person or persons in
accordance with its own laws, and to conduct the business affairs
of said Union in compliance with the best interest of the fire
fighters in general.
See Exhibit 6, attached hereto at Tab 5 (emphasis added). According to the above language,
upon its certification, this new, "duly formed" union could initiate new members and conduct the
business of the Union. Id. And that Union has conducted the business of entering into
Collective Bargaining Agreements with the City of Bozeman for the benefit of its members since
1999. See Exhibit 1, at Tab 6.
Applying the Unit Clarification No. 6-80 case above, the provisions of Mont. Code Ann.
§ 39-31-109 simply do not apply here. There is no "grandfathered" bargaining unit because in
1999, a new bargaining unit was formed when the City's firefighters voted to have the IAFF
18
exclusively represent them in bargaining, and a new Union was created pursuant to the IAFF's
constitution, laws and regulations.; The Hearing Officer incorrectly applied the law when he
concluded that the same collective bargaining unit of the City's firefighters had been in existence
since 1939. The Board of Personnel Appeals should direct the Hearing Officer to conform his
Conclusion of Law to the analysis set forth above, concluding that the collective bargaining unit
of the Bozeman Fire Fighters has only been in existence since 1999, and that the grandfather
clause contained in Mont. Code Ann. § 39-31-109 does not apply in this case.
V. THE CITY OBJECTS TO CONCLUSION OF LAW #3.
The Hearing Officer was also incorrect when he concluded that "keeping all positions
except the chief and deputy in chief [sic] in the bargaining unit is consistent with the party's
historical practices." See Rec. Order at p. 11, 13. Historically, as noted in the Objection to
FOF #2 above, assistant chiefs were actually included in earlier bargaining units prior to the
1970's. See Transcr. at 374:5 — 374:10, at Tab 1. In the mid -1980's, not only were the Chief
and Deputy Chiefs outside of the bargaining unit, but the Training and Maintenance Officer was,
as well. See Transcr. at 36:25 — 37:6, at Tab 1. After the reorganization of the police and fire
departments in 2001, there was no position of "Chief" and "Deputy Chief," but rather Assistant
3 It is worth noting that in the City of Billings case relied on so heavily by the Hearing Officer,
the Supreme Court explained that the City of Billings had — since 1968 — "continuously
recognized" the Billings Firefighters Local 4521 "as the collective bargaining unit" for the
Billing firefighters. See City of Billings, 200 Mont. 421, 425, 651 P.2d 627, 629. It was right
around 1968 that the Billings firefighters had themselves sought representation from the IAFF,
after having not been represented by the national organization for a period of time. See Billings
Fire Department website, History of the Billings Fre Department, noting that Local #521 was
originally chartered in Billings in 1937, and that the City of Billings "officially recognized Local
521 of The IAFF as the bargaining unit for Billings Firefighters," in 1969, see
<http://ci.billings.mt.us/index.mpx?NID=1789 >. The Supreme Court's mention of the City's
recognition of the IAFF Local 521 as the bargaining unit is consistent with its opinion — handed
down just three years later — in the Unit Clarification No. 6-80 matter, where it held that the
change in the bargaining representative was a change in the bargaining unit for purposes of the
grandfather clause.
19
Directors of Public Safety, which were not part of the bargaining unit. See Transcr. at 14:17 —
15:11, at Tab 1. Even apart from its affiliation or non -affiliation status with the IAFF, the City's
firefighters' bargaining unit has changed multiple times. Accordingly, there are no "historical
practices" that would make the grandfather clause applicable in this case. The Board of
Personnel Appeals should direct the Hearings Officer to conform his Conclusion of Law #3
accordingly, concluding that keeping all positions except the chief and deputy chief in the
bargaining unit is not consistent with the City's historical practices.
CONCLUSION
The grandfather provision of § 39-31-109 was put into place to ensure that positions in a
bargaining unit prior to July 1, 1973, would remain in that bargaining unit. It was not intended
to hamstring future growth of a workforce by forever freezing the management structure that was
in place in 1973. The significant growth of the Bozeman Fire Department over the past 40 years
has created the need for additional managerial, supervisory, and confidential employees. Those
employees are the newly -hired Battalion Chiefs. If the Department is forever prohibited from
adding such employees to its ranks, its ability to manage its workforce will be forever crippled.
The City requests that the Board of Personnel Appeals enter an order finding that the
Hearing Officer erred in his factual findings and legal conclusions as described above.
Specifically, the Hearing Officer erred in concluding that the grandfather clause applies to the
City's Battalion Chief positions. For the reasons explained above, the collective bargaining unit
in place today — The IAFF Local 613 — is not the same bargaining unit that was in place when the
Act was passed in 1973. The City asks the Board to remand this matter to the Hearing Officer
for further consideration pursuant to the Board's direction, to conduct any further proceedings as
necessary, and to conform his proposed recommendation to the direction provided by the Board.
20
DATED this 14th day of August, 2014.
—/ RYA W
Jason S. Ritchie
Michelle M. Sullivan
Holland & Hart LLP
P. O. Box 639
Billings, MT 59103-0639
Attorneys for Petitioner
21
CERTIFICATE OF MAILING
This is to certify that the foregoing was mailed to the following persons by United States
mail, postage prepaid on the date herein, as follows:
ORIGINAL TO:
Board of Personnel Appeals
Department of Labor and Industry
P. O. Box 201503
Helena, MT 59620-1503
COPY TO:
Karl J. Englund
Karl J. Englund, P.C.
401 North Washington Street
P.O. Box 8358
Missoula, MT 59807
Dated this 14th day of August, 2014.
7048ao9_1.DOCX
1
11
STATE OF MONTANA
BEFORE THE BOARD OF PERSONNEL APPEALS
IN THE MATTER OF UNIT CLARIFICATION NO. 5-2013:
CITY OF BOZEMAN,
Petitioner,
VS.
INTERNATIONAL ASSOCIATION OF
FIRE FIGHTERS, LOCAL 613,
Respondent.
COO FD -)y
Case No. 1821-2013
Volume I
TRANSCRIPT OF PROCEEDINGS
Held in Bozeman, Montana
Thursday - February 13, 2014
9:00 a.m.
GREGORY HANCHETT, PRESIDING HEARINGS EXAMINER
COUNSEL APPEARING:
Mr Jason S. Ritchie
Ms. Michelle M. Sullivan
HOLLAND & HART
1500 First Interstate Center
401.North 31st Street
Billings, Montana 59101
Representing the Petitioner
Mr. Karl J. Englund
KARL J. ENGLUND, P.C.
401 North Washington Street
Missoula, Montana 59807
Representing the Respondent
Rebecca M. Brubaker, Registered Professional Reporter
P.0, Bax 35026, Blttkgs, Wntftm 59107 - (06) 855-64-io - OYOZCO2'19o@bresnayL.net
1
A.
For about ten years.
2
Q.
So, roughly, 1984 to 1994?
3
A.
Correct.
4
Q.
And as a firefighter, were you a member of the
5
IAFF, Local
613?
6
A.
I was not.
7
Q.
And why not?
8
A.
Because we were not affiliated with the IAFF
9
when I started.
10
Q.
And when did the firefighters become affiliated
11
with the IAFF?
12
A.
They were originally affiliated some time --
13
many, many
years ago, and chose to withdrew their
14
affiliation
and became reaffiliated in 1999.
15
Q.
During your time as a firefighter between 184
16
and '94, were
there any discussions about being represented
17
by the IAFF?
18
A.
Yeah, it was -- it was a hot topic on and off
19
again. Yes.
20
Q.
And why was that a hot topic?
21
A.
During the annual conventions of the Montana
22
State Firemen's
Association, Bozeman Fire Department was
23
ostracized
for its lack of affiliation. And it was an
24 uncomfortable situation to be in, and I was one of the
25 proponents of reaffiliation.
12.
1 Q. During your time as a firefighter, again, 184
2 to 194, were there any votes about reaffiliating with the
3 IAFF?
4 A. I remember one particular, I brought in one of'
5 the IAFF representatives, the state representatives, and we
6 talked with the Bozeman Fire Fighters Association about the
7 benefits of affiliation and what it all entailed, and the
8 vote was ultimately not to affiliate.
9 Q. And do you know why the association chose at
10 that time not to affiliate with the IAFF?
11 A. Yeah. There were some hard feelings about
12 local control. And the firefighters at that time felt very
13 strongly that they would be able to best represent the
14 interests of the City of Bozeman and the Bozeman
15 firefighters, the Bozeman Fire Department. And they didn't
16 agree with kind of the pressures that came from the national
17 association, so they --
18 Q. Okay.
19 A. -- discontinued that relationship.
20 Q. Do you know what year the City first recognized
21 the IAFF in a Collective Bargaining Agreement after the
22 affiliation in 199?
23 A. I don't know the exact date. I know there was
24 no issues with recognizing the IAFF, so I would imagine it
25 started immediately.
14
1 contract.
2 Q. Will you take a look at the recognition clause
3 in that contract. And does that recognition clause reflect
4 the current management structure in the fire department?
5 A. It does not.
6 Q. And in what way is it different from the
7 current management structure of the fire department?
8 A. All the titles after the word "except" have not
9 been in place since 2005.
10 Q. Okay. And what are those titles specifically?
11 A. Assistant Director of Public Safety/Fire
12 Operations and EMS Services, and Assistant Director of
13 Public Safety/Inspections.
14 Q. And can you explain to the hearings examiner
15 how it came about that the City first began using those
16 titles.
17 A. Absolutely. A former city manager, City
18 Manager Johnson, was looking for ways to improve the
19 teamwork and the relationship between the police department
20 and the fire department. And he -- instead of having a
21 competition for resources and kind of a competition between
22 the two departments that really serve the public's community
23 safety needs, he decided that he wanted to reorganize into a
24 Department of Public Safety.
25 So we had two retirements, the chief and
15
1 the deputy operations chief retired within a month or two of
2 each other, and that was a good opportunity for the city
3 manager to create this Department of Public Safety. He
4 promoted the fire -- I'm sorry, the police chief, who
5 retired from the police department, became the director of
6 public safety, and he was over six assistant directors of
7 public safety. There were four in the police department and
8 two in the fire department.
9 Q. Okay. And when did that occur?
10 A. The official reorganization -- a lot led up to
11 it, but the official reorganization was July 1st, 2001.
12 Q. And how long did the City operate under that
13 management structure with the director of public safety?
14 A. Until July 1st, 2005.
15 Q. Okay. And how -- since July 1st, 2005, what is
16 the management structure of the fire department?
17 A. We went back to a traditional organizational
18 structure with a fire chief and two deputy fire chiefs, one
19 in charge of operation and the other in charge of -- the
20 other is the fire marshal, so in charge of prevention and
21 education.
22 Q. And are the fire chief and the two deputy
23 chiefs, are they part of the union, the local IAFF?
24 A. They are not.
25 Q. In 2005, when the positions were changed from
36
1
decisions we were making affected.
2
Q.
Okay. So in other words -- and I probably used
3
the wrong word, I didn't mean union. So there was employee
4
representation throughout the planning process, correct?
5
A.
At all levels.
6
Q.
At all levels.
7
A.
Yes.
8
Q.
And employees include people who are in the
9
bargaining
agreement, correct?
10
A.
In the IAFF bargaining unit, in the MPEA
11
bargaining
union and in the nonrepresented.
12
Q.
Okay. All right.
13
MR. ENGLUND: That's all I have. Thank you.
14
HEARINGS EXAMINER HANCHETT: Redirect.
15
MR. RITCHIE: Couple of questions.
16
REDIRECT EXAMINATION
17
BY MR. RITCHIE:
18
Q.
When you were hired as a firefighter in 1984,
19
what was the management structure of the fire department at
20
that time?
21
A.
I believe there were four administrators, four
22
chief officers, and maybe 18 firefighters, something like
23
that.
24
Q.
And what were those administrator positions?
25
A.
I remember them by names. There was the fire
37
1 chief, Lee Lewis; the assistant chief, Ed Welch; the trained
2 maintenance officer, Al Sherman; and the fire marshal, Dan
3 Figgins.
4 Q. And so those four positions were excluded from
5 the bargaining unit in the 1984, correct?
6 A. That's correct.
7 Q. And currently the training officer is part of
8 the collective bargaining unit; is that correct?
9 A. Yes, that's correct.
10 Q. So --
11 A. There were a number of years where we didn't
12 have a training officer, and that was one of the things that
13 we were able to add during the Department of Public Safety
14 organization, was that a new FTE for a growing fire
15 department important, it was critical that we had somebody
16 focused on training, so we hired a training officer.
17 Q. Okay. So in '84, there were four
18 administrators not part of the collective bargaining unit.
19 When you became an assistant director of public safety,
20 there were two members of the fire department that were not
21 part of the Collective Bargaining Agreement; is that
22 correct?
23 A. That's correct. Just to clarify, we've always
24 had a secretary or -- a secretary, a half-time secretary
25 that were never in the IAFF. They were represented by MPEA.
43
1
A.
2007.
2
Q.
-- to 2007 you were staff captain?
3
A.
Correct.
4
Q.
And then from 2007 until 2008 --
5
A.
The operations chief.
6
Q.
Ops. chief.
7
And then 2008 to current, you are the
8
fire chief?
9
A.
That's correct.
10
Q.
And what's the job duties of the ops. chief?
11
A.
The operations chief's job responsibilities are
12
to take care
of the day-to-day operations of the fire
13
department.
14
Q.
And explain to the hearings examiner kind of
15
your current
administrative structure in the fire
16
department.
17
A.
The current administrative structure of the
18
fire department
is the fire chief at the top, and the next
19
step down are
two deputy chiefs, one is the deputy chief of
20
operations,
the second peer to that position is our deputy
21
chief fire marshal
in charge of inspections and fire marshal
22
related duties,
and then the three battalion chiefs work
23
directly for
our operations chief. Also, in the day staff
24
world, we have
two separate positions, one being a training
25
officer, one
being a staff captain, and actually a third,
328
STATE OF MONTANA
BEFORE THE BOARD OF PERSONNEL APPEALS
IN THE MATTER OF UNIT CLARIFICATION NO. 5-2013:
CITY OF BOZEMAN,
Petitioner,
VS.
Case No. 1821-2013
INTERNATIONAL ASSOCIATION OF
FIRE FIGHTERS, LOCAL 613,
Respondent.
TRANSCRIPT OF PROCEEDINGS
Vn11lmP TT
Held in Bozeman, Montana
Wednesday - March 5, 2014
9:00 a.m.
GREGORY HANCHETT, PRESIDING HEARINGS EXAMINER
COUNSEL APPEARING:
Mr Jason S. Ritchie
Ms. Michelle M. Sullivan
HOLLAND & HART
1500 First Interstate Center
401 North 31st Street
Billings, Montana 59101
Representing the Petitioner
Mr. Karl J. Englund
KARL J. ENGLUND, P.C.
401 North Washington Street
Missoula, Montana 59807
Representing the Respondent
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
M.A.
A. Yes.
Q• Okay. What -- when is the first written
Collective Bargaining Agreement between the City of Bozeman
and Bozeman firefighters?
A. The first one that I'm familiar with is from
1976.
Q. Written?
A. Written.
Q. And who was included in the bargaining?
MR. RITCHIE: Objection. Foundation.
Q. (By Mr. Englund) Do you know who was included
in the bargaining?
A. Everybody but the --
MR. RITCHIE: Same objection.
HEARINGS EXAMINER HANCHETT: Okay. What
additional foundation do you need?
MR. RITCHIE: We've never seen this document
that he's basing his testimony on. We don't know where it came
from, we don't know where he found this, so that's the
foundation that's needed.
HEARINGS EXAMINER HANCHETT: Do you want to ask
a couple questions along that line?
MR. ENGLUND: Sure.
Q. (By Mr. Englund) Did the -- does the Union
have copies of past Collective Bargaining Agreements?.
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
A. Yes.
Q. Okay. And did you find those in the union
files?
367
A. Yes.
Q. And did you -- when was the first one that you
found?
A. The earliest one that I found was from 1976.
Q. Who was included in the bargaining agreement?
A. Everybody but the chief and the assistant
chief.
Q. Okay. Are there any indications in the union
files that the Bozeman Fire Fighters Association, or an
organization of firefighters in Bozeman and the City engaged
in discussions concerning wages or hours or working
conditions prior to 1976?
A. Yes.
Q. And what are those indications?
A. From my review of our records and the records
at the university, there's correspondence letters between
the Bozeman firefighters and other firefighters across the
state asking about wages.
Q. And when were they?
A. Back in the early 150s
Q. Okay.
A. -- up through, I don't know. When I was a
11
2
3
4
5
6
7
11
12
13
14
15
16
17
18
19
20
21
374
Q. Okay. And at this time, in 167, '68, '69, the
Bozeman firefighters were not associated with the IAFF,
correct?
A. I don't believe so.
Q. Okay. You testified a moment ago that based on
this document, Exhibit No. D, that it appears that assistant
chief was included in the bargaining unit whenever this
document was created, correct? And if you turn to page 15.
A. Yes. I believe I testified to the fact that it
appears that this includes the assistant chief on down.
Q. Okay. And you testified that the assistant
chiefs were not included in the bargaining unit in the 1976
contract, correct?
A. Correct.
Q. So at some point between the time that this
document, 19 -- Exhibit No. D, and the 1976 contract, the
bargaining unit, changed to -- from including assistant
chiefs to excluding assistant chiefs, correct?
A. Yes.
Q. And the bargaining unit has changed again in
2003 to reflect the assistant directors of public safety,
2211 correct?
23
24
251
A. It was a title change based on a change in --
going from a single fire department to a Department of
Public Safety.
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
International Association of Fire Fighters, dated the 1st
day of March, Nineteen Hundred and Ninety -Nine.
Q. Okay. And based on that exhibit, would you
confirm that the last affiliation with the IAFF was
March 1st of 1999?
A. Yes.
Q. And what is this? Is this a picture of
something that's hanging on the wall at the fire station?
A. There is one hanging on the wall at the fire
station, I'm not sure if this is a photo or --
Q• Okay, okay.
HEARINGS EXAMINER HANCHETT: Do you want to
admit it?
admit it?
(Exhibit No. 6.
Ilater?
MR. RITCHIE: Huh?
HEARINGS EXAMINER HANCHETT: Do you want to
MR. RITCHIE: Yeah. Can we move to admit
HEARINGS EXAMINER HANCHETT: Okay. 6 is in..
MR. ENGLUND: Is this my copy?
MR. RITCHIE: No. Sorry, I only have one.
MR. ENGLUND: Are you going to send me one
MR. RITCHIE: I can, yeah.
MR. ENGLUND: All right. I appreciate that.
377
Vice presiaotils
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and District—A. V. WZSSRLXY
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1122 'Mt North Avo., Milwaukee, Wis.
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1182 Villiott St,* Saskatoon, Sask., Canada
Mr. 117, A. Penttila
spbret'Ary Local 110..61130
b/o, Fire Depi%rtment,
23ozemani Moat&na-
Dear $Ir and 3rothari
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APFILIAT90 WITH AMXnI(JAk ),xj3rnATI*M OVI LAIlon
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9 P's -of
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liot to ppcal ve oppX "ar Off -ictal mimagint, A" RNATMTjkL
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Bozeman, Montana
2 July 1968
MINUTES OF THE SPECIAL MEETING OF THE CITY COMMISSION
The Commission of the City of Bozeman met in Special Session pursuant to call by the City
Manager in the City Hall Building, Tuesday, 2 July 1965, at 9;00 o'clock A.M. Present were Mayor
Morrow, Commissioner Sedivy, Commissioner Langohr, City Manager Cutting, Asst City Manager Fryslie,
and the Clark when the following proceedings were had;
it was reported by the City Manager that this Special Meeting was called to review proliminary
planning for the planning for the bullet for the fiscal year ending 30 Juno 1969.
A goneraT discussion was had of basin policies for the overall operation of the City Govern-
ment. Activities for the past year were reviewed and planning for the new fisoal year and imma-
diate future Wag considered. The Commission was informed in detail of the obligations and needs
of the departments and again advised of the continued inadequacy of operational funds that are pro-
vided under existing limitations of Montana Law.
Sergeant Hal McDowell, President of the Police Association, and,on behalf of the Association,,
appeared before the Commission to request a $50,OO,per month base pay increase to meet cost of living
increases and six paid holidays.
Daniel L, Figgins president of the Fire Relief Association also appeared before the Commission
on behalf of that association to further discuss the budgetary letter submitted to the Dire Chief whereby
they also requested a $50.00 per month base pay increase to meet cost of living increases and further
compensation for th6ir,forty-oight hour week and a reconsideration of leave privelages.
The 'Fire Chief and Chief of Police also address the Commission in regard to the operational and e
equipment needs of their department.
Mr. Virgil L. Buettner, Business Representative of the Bozeman Teamsters, Chauffers, Ware-
housemen and Helpers - Local 53 attended the mooting and advised the Commission that they have
requested an increase of 250 per hour for the maintenance crew,
Mayor Morrow thanked those appearing before the Commission and advised., that their request
would be taken under consideration, when the necessary date is available in regard to fund avail-
able. The City Manager further advised those appearing before tho.Commission that he was -extreme-
ly proud of all City Departments and was prepared to give them every possible consideration,
however, he pointed out that such consideration would be governed by the funds limited by State
law that can be made available for such consideration.
Adlournments
There being no further business t6 chme'befors the Commission at this time, it was moved by
Commissioner Sedivy, seconded by Commissioner Langohr, that the Spacial Meeting be adjourned and '
the motion was carried by the Following Aye and No vote; those voting Aye being Commissioner Sedivy,
,Commissioner Langohr and Mayor Morrow; those voting No, none.
'
Mayor
ATTESTS
Clerk of tiff Cityq mission
EXHIBIT
�A
fim
Bozeman, Montana
25 -July 1968
MINUTES OF THE SPECIAL, MEETING OF THE CITY COMMISSION
The Commission of the City of Bozeman met in Special Session pursuant to Call by the city
Manager in the City Hall Building, Thursday, 25 July, 1968, at 9:00 o'clock A.M. Present were
Mayor Marrow,'Commissioner Sedivy, Commissioner Langohr, City Manager Cutting, Ass't City Manager
Fryslio and the Clerk when the following proceedings were had:
It was reported by the City Manager, that thia,•Special Meeting was called in continuation of
a more specific discussion of the preliminary -Budget for the fiscal year ending 90 ,lune 1969 now
being finalized for presentation.
The representatives of the police Association indicated that the salary increase of $30.00
per month would be acceptable as presented.
The representatives of the Fire Relief Association also indicated that the salary increase
of $30.00 per month would be acceptable an presented.
It was also reported that the proposed hourly wage increase of 20� per hour was acceptable
to the City employees affected.
Other wages, salaries and details of the budget were discussed and Mayor Morrow thanked the
representatives for'attending the meeting on behalf of the various associations.
There being no further business to come before the Commission at this time, it was moved
by Commissioner Sedivy, seconded by Commissioner Langahr, that the Special Meeting be adjourned
and the motion was carried by the following Aye and No vote: those voting Aye being Cilmnissioner
Sedivy, Commissioner Langohr and Mayor Morrow] those voting No, none.
Mayor
ATTESTS i
Clerk of the' City commissda�nI
233
EXHIBIT
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FIRE FIGHTERS
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Certificate of Affiliation
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,k�St GA?ION Or' FIRE FrjKTERS this _-- First _------_— day 0� _March
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a
COLLECTIVE
BARGAINING
AGREEMENT
between
CITY OF BOZEMAN
and
IAFF LOCAL 613
BOZEMAN FIREFIGHTERS'
FY 2013 - FY 2015
July 1, 2012 through June 30, 2015
EXHIBIT
CONTENTS
Page
ARTICLE 1: RECOGNITION ................................................................................. .2.
ARTICLE 2: PROVISIONS SUBJECT TO RESTRAINT..........................................................2.
ARTICLE 3: SPECIFIC TERMS AND CONDITIONS OF EMPLOYMENT FOR
UNIFORMED DAY PERSONNEL.......................................................................2.
ARTICLE 4: PAYROLL DEDUCTIONS.......................................:.....................3.
ARTICLE 5: DISCRIMINATION................................................................:..............................3.
ARTICLE 6: UNION BUSINESS................................................................................................4.
ARTICLE 7: PREVAILING RIGHTS.........................................,........,.........................,:.......,..,4.
ARTICLE 8: RULES AND REGULATIONS.............................................................................4.
ARTICLE 9: OVERTIME AND COMPENSATORY TIME......................................................4.
ARTICLE 10: ALTERNATIVE WORK SCHEDULE.................................................................5.
ARTICLE 11: PAY FOR TEMPORARY SERVICE AS SHIFT OFFICER/CAPTAIN .............6.
ARTICLE12: HOLIDAY PAY ..................................................................................................6,
ARTICLE 13: HEALTH AND MEDICAL INSURANCE...........................................................7.
ARTICLE 14: SHIFT CHANGES................................................................................................9,
ARTICLE 15: SICK, VACATION AND BEREAVEMENT LEAVE.........................................9,
ARTICLE 16. VACANCIES AND PROMOTIONS...................................................................12
ARTICLE 17: GRIEVANCE AND ARBITRATION PROCEDURES.......................................12
ARTICLE IS: SUPPLEMENTAL AGREEMENT......................................................................15
ARTICLE 19: TERM OF AGREEMENT .................................................. .............................15
ARTICLE 20: STRIKE PROVISION................................................................................... .16
ARTICLE 21: SAVINGS CLAUSE............................................................................................16
ARTICLE 22: OFFICIAL DUTIES........................................................................................ .16
ARTICLE 23, SALARIES & COMPENSATION.......................................................................16
ADDENDUM A: FIREFIGH'T'ER PAY RATES.....................................:............:......................18
ADDENDUM B: SUPPLEMENTAL RETIREMENT PROGRAM...........................................21
AGREEMENT
This Agreement, made and entered into this day of 2012, between The City of
Bozeman, Bozeman, Montana, a municipal corporation, herernafter referred to as "Employer",
and The IAFF Local 613 - Bozeman Firefighters, hereinafter referred to as "Union",
It is the purpose of this Agreement to achieve and maintain harmonious relations between the
Employer and the Union, to provide for equitable and peaceful adjustment of differences which
may arise, and to establish proper standards of wages, hours and other conditions of
employnnaent.
ARTICLE 1: RECOGNITION
The Employer recognizes the Union as the exclusive bargaining agent for all combat firefighters
and uniformed day personnel of the Bozeman Fire Department, except the Assistant Director of
Public Safety/Fire Operations & EMS Services, and the Assistant Director of Public
Safety/Inspections, .
ARTICLE 2: PROVISIONS SUBJECT TO RESTRAINT
Articles 9, 10, 11, 12, and 14 of this agreement shall have no application to Uniformed Day
Personnel and their enforcement by Uniformed Day Personnel shall be restrained.
ARTICLE 3: SPECIFIC TERMS AND CONDITIONS OF
EMPLOYMENT FOR UNIFORMED DAY PERSONNEL
A. Through mutual agreement, the Fire Chief shall be allowed to temporarily assign
interested combat firefighters to perform the duties of uniformed day personnel, The
length of these assignments shall be a minimum of twelve (12) months.
B. Upon completion of this UDP assignment, an Employee shall be allowed to return to 24-
hour shift duties, Reassignment to a 24-hour shift is contingent upon:
1. There must be a vacancy in the suppression division.
2. The employee shall not be under any form of disciplinary action or performance
correction in his/her UAP position.
3, The appropriate supervisor shall complete an appraisal of the employee's
performance while assigned to the UDP position. A copy of the evaluation shall be
forwarded to the Human Resources Department where it will be placed in the
employee's personnel file.
4. The Firefighter will return to shift at the step s/he would have attained within the
2
normal course of service. (Por example, a Firefighter with 4 years of service with the
Bozeman Fire Depaitment spends 12 months in the Training Officer assignment,
That Firefighter would return to shift duties as a Firefighter 1`t Class).
5. Seniority shall be the determining factor if the number of employees qualified to
return to shift under this policy exceeds the number of qualifying vacancies on shift.
C. Firefighters assigned to these temporary assignments are eligible to apply for promotions
occurring within the Department during the one year assignment period.
D. Nonexempt uniformed day personnel shall be paid at a rate of one and one-half times
their regular rate of pay for all authorized time they work over or forty (40) hours per
week. With prior Supervisory approval, nonexempt employees may choose to accrue
compensatory time in lieu of overtime pay, at a rate of one and one-half times their
regular rate of pay, for all authorized time they work over forty hours per week.
1. The maximum compensatory time accrual will not exceed 225 hours at the end of
any pay period.
2. Upon termination, unused accumulated compensatory time will be paid to the
employee at their final regular rate of pay,
E. With the exception of paragraphs D and DJ through D.2 above, all Uniformed Day
Personnel shall be subject to and governed by the City of Bozeman Employee Handbook,
and all terms and conditions of employment regarding Overtime Pay, FIexible Work
Schedule, Holiday pay, and Hours of Work.
ARTICLE 4; PAYROLL DEDUCTIONS
The Employer agrees to deduct, once each month, dues or assessments from the pay of those
employees who individually request, in writing, that such deduction be made. The total amount
of deductions shall be remitted by the Employer to the Secretary of the Union. This authorization
shall remain in force during the terin of this Agreement.
ARTICLE 5; DISCRIMINA'T'ION
Neither the Union nor the Employer shall discriminate against its employees or applicants for
employment on the basis of race, color; religion, creed, sex, age, marital status, national origin,
political ideas, or on the basis of perceived or actual disability, sexual orientation or gender
identity, or Union affiliation, This relates to all aspects of employment and to the use of all
facilities and participation in all City -sponsored activities. This policy does not preclude
discrimination based on bona fide occupational qualifications or other recognized exceptions
under the law.
ARTICLE 6: UNION BUSINESS
Employees elected or appointed as Union officers or individuals appointed by the Union to
represent the Union shall be granted reasonable work time to perform their necessary functions.
At the beginning of each fiscal year,, the Employer will provide a check to the Union in the
amount of two thousand dollars ($2,000) for the Union to use for the purpose of Union
attendance at conventions, conferences and seminars.
ARTICLE 7: PREN7AILING RIGHTS
A. All rights, privileges and duties held by the employees at the present time which are not
included in this Agreement shall remain in force, unchanged and unaffected in any
planner.
B. The Union shall recognize. the Employer's rights to operate and manage its affairs in such
areas as, but not limited to, direct employees, hire, lay off, promote, transfer, assign,
retain employees; relieve employees from duty because of lack of work or funds or under
conditions where continuation of such work would be inefficient and nonproductive;
maintain the efficiency of government operations; determine the methods, means, job
classifications, and personnel by which govern111ent operations are conducted; take
whatever actions may be necessary to carry out the missions of the Employer in situations
of emergency; and establish the methods and processes by which work is performed.
ARTICLE 8: RULES AND REGULATIONS
The Union agrees that its members shall comply in full with Fire Department rules and
regulations, including those relating to conduct and work performance. The Employer agrees
that Department rules and regulations shall be subject to the grievance and arbitration procedure.
ARTICLE 9: OVERTIME AND COMPENSATORY TIME
A. Combat firefighters will be paid on a salary basis, with the pay rate for overtime purposes
calculated as follows:
Addendum A
Pay Rate X 12 = Hourly Rate X 1.5 - Overtime Rate
2,756 hours per year
B. Combat Firefighters will be scheduled to work schedules which are compliant with
Section 207(k) of the Fair Labor Standards Act, In 110 case will the work period exceed
0
28 consecutive days or 212 hours of fire protection work, The work period will be
established annually and will remain fixed; any change in a work schedule must receive
prior approval from the Fire Chief, Human Resources and Payroll. The Employer will
grant non-exempt combat firefighters compensatory time to a maximum of 225 hours at
the end of any pay period, or pay overtime at the rate of time and a half for each hour
worked when qualifying work hours exceed the maximum hours allowed under the
207(k) work schedule at the time. of the work being performed. Employees shall be
permitted to use compensatory time within a reasonable period after snaking the request if
such use does not unduly disrupt the operation of the division. Management will not be
obligated to consider a request unless it is submitted seven days prior to the day off being
requested.
C. Emergency Callback
a. The employee shall receive a minimum payment of three (3) hours, at time and a
half, when:
I . The employee is called into duty on his day off or outside his/her regularly
scheduled shift.
2. The employee is called into work on a duty day, not immediately before or
after the regularly scheduled shift,
b. If the call back exceeds three hours, the employee will be compensated for every
hour worked. (Exan-iples: a call back is 4 hours. The employee will .receive 4
hours' pay at time and a half. If a call back is 1 hour, the employee will receive 3
hours' pay at time and a half.)
c. The employee shall be compensated as per Article 9 for all scheduled non-
emergency meetings and trainings outside of his/her regularly scheduled shift.
ARTICLE 10: ALTERNATIVE WORK SCHEDULE
The employer may establish an alternative work schedule for certain positions, When recruiting
for positions which require an alternative work schedule, the notice of vacancy will state that the
position requires an alternative work schedule. If an employee accepts such a position, that
employee must agree to the alternative work schedules as a condition of continued employment.
(In those areas where alternative work schedules are required, current practices will continue in
effect.)
ARTICLE 11: PAY FOR TEMPORARY SERVICE AS SHIFT OFFICER/CAPTAIN
A. A Firefighter working in the capacity of a Captain shall receive a temporary upgrade in base
pay equal to that of a Captain (as established in Addendum A) for hours worked as an acting
Captain.
B. When a Captain or Training Officer is assigned by the Fixe Chief or a Deputy Chief to be "on
call" as the Command Officer, compensation will be three (3) hours in every 12 hour period
or major portion thereof.
Paragraph B above will no longer be in effect upon the hiring of three (3) Battalion Chiefs.
ARTICLE 12: HOLIDAY PAY
Each employee who is scheduled from 7:00 a.m. to midnight on any of the below -scheduled
holidays shall be compensated for hours worked (up to 17 hours) at the rate of one and one-half
times their regular rate of pay (balance of hours worked at regular rate of pay). (Only'one shift
will receive holiday pay.)
Effective January 1992, members of the Union no longer receive the holiday compensation
check previously paid by separate check on November 30. In. exchange for the November 30,
1992, holiday check and all subsequent November holiday checks, the Employer agrees to
increase the base pay matrix of the Union by 4 percent, beginning with the January 1992 pay
period. The Union agrees to this change, subject to the condition that anytime the salaries of this
group are compared with other employee groups, the entire wage pacltage (including but not
limited to holiday pay, differential pay, etc.) of the group(s) in the comparison be considered.
Compensated holidays are:
1. New Year's Day
7,
Labor Day
2, Martin Luther King Day
8.
Veteran's Day
3. President's Day (Lincoln's/Washington's Birthday)
9,
Thanksgiving Day
4. Easter
10.
Day after Thanksgiving
S, Memorial Day
11,
Christmas
G. Independence Day
12,
General Election Day
A.
ARTICLE 13: HEALTH AND MEDICAL INSURANCE
Effective July 1, 2012 (June deduction), the Employer will contribute;
Coverage Employer
Contribution
.Jx;1� �'..�@.�Illya •t5'n�,d'utP,�'•' ��hr,'I'r`.y •�,+1) -� "'• t ili 1"n�ry�S'rz.,;.,
�� t ci6:
' .: • , .: ...:..... .,"r....,. kr w. .1,14: d,T
Employee & Spouse $852
5 r , .
+'�"'�i Y.•k.r. 4 ;f,•%s :, ., is ,`:ilk.' � rfi
tuildireu ., � �:, —1,111111
Cal?- u.:... kfr;•..l ;t}�
Employee & Family $1,153
for full time Local Union Members for health/dentaVvisioia/prescription insurance and
other cafeteria plan options.
The Employer may require Local Union Members to pay additional contributions to
cover dependents, spouses and/or domestic partners. Costs of these additional coverages
will be paid by the Association Member through payroll deduction,
During open enrollment each year, Local Union Members may select their insurance
coverage by choosing from among the plays offered by the Employer,
Subsequent years' coverage levels and employee contributions will be determined by a
vote of the employee health insurance committee, and subject to employee vote and
union ratification.
B. Progam. to A.uWnent Retirement Benefit.
Recognizing the previous intent of employees and the Employer, , to allow employees to
participate in an I.R.C. § 125 plan whereby employees can contribute toward the
purchase of health/dental/vision/prescription insurance on a pretax basis, and seeking to
clarify the employees options under such plan, Article 13 of the collective bargaining
agreement is hereby retroactively amended to July 1, 1996 as follows:
Effective July 1, 1996, the Employer's contribution toward employee's
health/dental/vision insurance will be added to the employee's gross pay. This portion of
the employee's gross pay is hereinafter referred to as the "Contribution," As part of this
collective bargaining agreement, employees are required to participate in the Employer's
health/dental/vision/prescription insurance plan on either a pre-tax or post -tax basis. If an
employee elects to participate on a pre-tax basis, the employee shall authorize a payroll
7
deduction from the employee's gross pay equal to the Contribution toward employee's
health/dental/vision/prescription insurance. This deduction from' the employee's gross
pay will be paid into a fund maintained to provide health/dental/vision/prescription
insurance benefits for employees.
If an employee elects to participate on a post -tax basis, the Contribution shall be taxable
income to the employee and the employee shall authorize the payment of the
Contribution value, after its deemed receipt, toward the employee's
healtli/dental/visiorr/prescription insurance.
Including the Employer's Contribution toward employee's
health/dental/vision/prescription insurance in the employee's gross pay serves the purpose
of augmenting the employee's eventual retirement benefit. It is hereby acknowledged
that both employee and employer retirement contributions will be required on this
additional gross income --causing a decrease to the net income of the employee. It is also
the intent of the employees and the Employer that the Contribution be excluded from the
determination of the employee's "regular rate" of compensation as that phrase is defined
under 29 U,S.C, § 207(e)(4). In the event that any subsequent law, court, arbitrator, or
other lawful authority determines that the inclusion of the Employer's
health/dental/visioi3/prescription insurance contribution in the employee's gross pay
should be included in overtime compensation calculations, then the parties agree that
there will be a corresponding adjustment to the affected hourly rate of pay to carry out the
intent of this provision. The intent of such adjustment will be to result ill the least net
financial effect on both the employee and the employer.
Notwithstanding the above, regardless of the Employer's historic practice of contributing
the Employer's entire payment for an employee's health/dental/vision/prescription
insurance toward the employee's gross pay for purposes of calculating income for
retirement purposes (Le, the Contribution),
1. Effective July 1, 2012 said allocation of health/dental/vision/prescription insurance
payments by the Employer to an employee's gross pay for purposes of calculating
income for retirement purposes shall be $530.00 per month; and
2. Effective July 1, 2013 said allocation of health/dental/vision/prescription insurance
payments by the Employer to an employee's gross pay for purposes of calculating
income for retirement purposes shall be $555,00 per month; and
3. Effective July 1, 2014 said allocation of health/dental/vision/preseription insurance
payments by the Employer to an employee's gross pay for purposes of calculating
income for retirement purposes shall be $580.00 per month.
It is the intent of the Employer and the Association that this Program to Augment
Retirement Benefits continue to be allowed by the FURS. Therefore, if any of the
0
monthly amounts specified in 2. or 3. above exceed the Employer's monthly contribution
for single employee health insurance at that time, the single employee health insurance
contribution will be the maximum amount of the Contribution under this part.
ARTICLE 14: SHIFT GANGES
Employees shall have the right to exchange shifts when the change does not interfere with the
best interests of the Fire Department and with the approval of the Shift Officer,
When there is a substitution of work schedules voluntarily undertaken and agreed to solely by
the employees and approved by the employer, the hours worked by the substituting; employee
will be excluded from any overtime calculations, All trades shall be consistent with the
responsibilities of both employees involved and shall comply with the Bozeman Fire Department
Shift Trades Policy and Procedures.
When employees voluntarily provide early relief from other shifts/employees, the time spent
providing the relief will be excluded from overtime calculations.
ARTICLE 15: SICK, VACATION, AND BEREAVEMENT LEAVE
A. Sick leave:
1. Sick leave shall be accrued and expended according to State Law.
2, Sick Leave Transition Plan:
a. Leave Accounts: On July 1, 2006, the Payroll Officer will maintain two
sick leave accounts for each member assigned to a 24 hour shift as
follows:
1) Account 41: Sick leave earned and/or used on or after July 1, 2006.
Employees who start work on or after July 1, 2006 will only have this
Account available. The hours in this account will accrue at the rate
provided for in MCA 2-18-618(1), which is currently .046 hours
earned for each hour worked, These hours may be converted to
supplemental retirement or deferred compensation in accordance with
Addendum. "B",
2) Account #2: The Employee's sick leave balance as of June 30, 2006.
These hours may be converted to supplemental retirement or deferred
9
compensation in accordance with Addendum "$". This Account must
be exhausted prior to any use of hours in Account #1,
b, Leave Usaae: Effective July 1, 2006:
1) For personnel assigned to a 24-hour shift, sick leave used will be
charged to Account #2, as follows:
Chart 1: Leave Usage Schedule for Leave
Earned Prior to July 1, 2006
This leave usage schedule will be followed until the sick leave accrual
balance in Account #2 is exhausted. For example, a combat firefighter°
who is absent from work due to illness for 12 hours of a 24-hour shift
will use 10 hours of sick leave, Once Account #2 is exhausted, these
employees will then use sick leave, from Account #1, on an hour -for.
hour basis.
2) Combat firefighters, and combat firefighters who are currently
working as uniformed day personnel, and who are hired on or after
July 1, 2006 will earn and use sick leave on an hour -far -hour basis,
For example, a Combat firefighter who begins work July 7, 2006 and
who is absent from work due to illness for a full 24-hour shift will use
10
AMOUNT OR
AMOUNT
1r
AMOUNT
iiOURs
WORKED
I F.A1'F, r
110URS
O%LF.AVL
�uj
����
IiOURB
OFLEAVE
CHARGED A4�
WORKED
CHARGED
WORKED
C11ARGED
0,5
19.5
8.5
13
has
16.5
6,25
1
g
oil
19,25 Y
9
12.5
17
S.?S
115
18,75
915
12
17.5
5.5
2
18,25 5fif�
10
11,75
ss���
�gg�l1
18
5
2,5
18
1U,5
11.25
iuyR
18,5
4,5
3
17,5
11
10.75
L#Y
19
4.25
313
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0
This leave usage schedule will be followed until the sick leave accrual
balance in Account #2 is exhausted. For example, a combat firefighter°
who is absent from work due to illness for 12 hours of a 24-hour shift
will use 10 hours of sick leave, Once Account #2 is exhausted, these
employees will then use sick leave, from Account #1, on an hour -for.
hour basis.
2) Combat firefighters, and combat firefighters who are currently
working as uniformed day personnel, and who are hired on or after
July 1, 2006 will earn and use sick leave on an hour -far -hour basis,
For example, a Combat firefighter who begins work July 7, 2006 and
who is absent from work due to illness for a full 24-hour shift will use
10
24 hours of sick leave. The 90 day qualifying period required under
Montana Code applies.
Annual Vacation Leave
Effective on July I, 2006 and consistent with MCA 2-18-612, employees shall earn
annual vacation leave at the following rates:
Years of Service Employee Earns
0-9 13.320 hours per month
10-14 15.847 hours per month
15-19 18.603 hours per month
20 and on 21.1293 hours per month
All bargaining unit members can also earn "accelerated leave" for prior Montana govern-
ment, or oertain kinds of military, service. It is the employee's responsibility to request
this accelerated leave. Please refer to the Employee handbook for more, infonnation.
1. Leave Accounts; On July 1, 2006, the Payroll Officer will maintain two annual
vacation leave accounts for each member:
a. Account #1: Annual vacation leave earned anti/or used on or after July 1,
2006. Members hired on or after July 1, 2006 will only have this Account
available.
b. Account #2: The member's annual vacation leave balance as of June 30,
2006. Account #2 vacation leave balances will be exhausted by no later than
June 30, 2009.
2. Leave Usage: Effective July 1, 2006-
a. For Combat firefighters hired before July 1, 2006, the leave usage schedule
shown in Chart 1 above will be followed, until the annual leave accrual
balance in Account #2 is exhausted. For example, a Combat firefighter who
tapes 12 hours of vacation in a 24-hour shift will use 10 hours of vacation
leave. Once Account #2 is exhausted, these employees will then use vacation
leave, from Account #1, on an hour -for -hour basis.
These employees will then use vacation leave, from Account #1, on an hour -
for -hour basis.
b. Combat Firefighters hired on or after July 1, 2006 will use annual vacation
leave on an hour -for -hour basis. For example, a combat firefighter who is
absent from work for a 24-hour shift for vacation -related reasons will use 24
hours of annual leave. The six (6) month qualifying period required under
Montana Code applies.
11
3. Excess vacation leave will be administered in compliance with State law and the
Employee Handbook.
C. Bereavement Leave: Bereavement leave shall be granted as per present Employer
policy.
ARTICLE 16: VACANCIES AND PROMOTIONS
When a vacancy occurs in the position. of Engineer or above, it shall be filled within 60 regular
business days upon completion of the official severance of the departing member from the Fire
Department. This time period may be modified on each occasion by mutual agreement of the
parties.
Defined below is the minimum number of years that a candidate must have completed with the
Bozeman Fire Department in order to move to the next step. Qualified means meeting the
minimum years, training and successfully completing the promotional process defined by
departmental policy.
Title "Years Completed with BFD
Captain
9 years
Acting Captain
7 years
Engineer
6 years
Firefighter 1 sr Class
4 years
0' Year Firefighter
3 years
3rd Year Firefighter
2 years
2"d year Firefighter
1 year
Training Officer
Determined by Chief
Staff Captain
Determined by Chief
ARTICLE 17: GRIEVANCE & ARBITRATION PROCEDURES
A grievance is defined as a dispute, or difference in interpretation between an employee or the
Union and the Employer involving wages, hours, and all conditions of employinent which are
expressly provided by this contract.
The Union shall certify in writing to the Employer the names of all employees or others
12
authorized to represent the Union in this procedure. For the purpose of this article, persons are
authorized to represent the grievance during regular working hours without loss of regular pay
providing the Employer does not incur the cost of any overtime as a result of representation.
Union representatives from the local or international level may be called in to assist at any step
during the grievance. Departure from the established procedure, unless mutually waived by both
parties, by the Union or any person represented by the Union shall automatically nullify any
further recourse through this procedure for the grievance.
Departure from the established procedure, unless mutually waived by both parties, by the
Employer shall automatically place the grievance into the next step.
For the purpose of this article a business day is defined as all calendar days except Saturdays,
Sundays, and holidays. Presentations of grievances must, at each Step of the following process,
include the following information:
a. Name of employee(s) grieving;
b. Dates of the action(s);
c. Statement of Grievance;
d. Contract Provision Violated;
e. Specific Remedy or Corrective Action requested.
Procedure:
Step 1-- Immediate Supervisor's Notification;
Any dispute involving the interpretation, application, or alleged violation of a specific provision
of this agreement shall be brought to the employees) immediate supervisor wittin fifteen (15)
business days of the day the incident occurred.
Step 2 - Immediate Supervisor's Response:
No formal grievance may be filed until the immediate supervisor has been given an opportunity
to attempt resolution. The immediate supervisor has ten (10) business days to respond to a Step
1 notification.
Xf the employee's irannediate supervlsoV is the Fire Chief, Step #I and Step #2 can be passed
over and the employee can move immediately to Step 4.
Step 3 -- Formal Grievance:
In the event the employee(s) covered by this agreement chooses to file a formal grievance they
shall notify the Fire Chief and the Union Grievance Committee within five (5) business days
from the end of Step 2.
13
Step 4 -- Union Investigation:
The Union Grievance Committee shall investigate the grievance and if it determines that a
grievance exists, it shall present the grievance to the Fire Chief within ten (10) business days of
receipt of the grievance.
In the event the Union Grievance Committee is unable to determine that a grievance exists, the
employee(s) shall have the opportunity to present the grievance to the members of the Union.
The grievance shall be presented at the next union meeting, or within a thirty (30) calendar day
period, whichever is earliest, unless an exception is granted by the union grievance committee
and the Chief
1. If the Union determines that no grievance is warranted, this shall be considered the
final obligation of the Union, and the employee(s) is limited to seeking remedy
outside of this agreement.
2. If the Union determines that, in their opinion, the grievance is valid, the Union
Grievance Committee shall, within fifteen (15) business days of the Union's
deternination, present the grievance to the Chief for resolution.
Step 5 -- Fire Chief Response:
The Fire Chief will respond to the employee(s) and report any adjustments in writing to the
einployee(s) and the Union Grievance Committee within ten (10) business days of receipt of the
grievance from the Union Grievance Committee,
Step 6 — Grievance Presented to the City Manager:
If the grievance cannot be resolved at Step S, the Committee shall, within. ten (10) business days
of receipt of the Chief's response, present the grievance, in written form, to the City Manager.
Step 7 -- City Manager's Response:
The City Manager has ten (10) business days to respond to a Step 6 grievance presentation.
Step 8 -- Arbitration:
Part 1:
If the grievance remains unresolved the Union Grievance Committee shall, within five
(5) business days of the receipt of the City Manager's response, request arbitration, The
request must be in writing and be presented to the City Manager.
Part 2:
14
At the same time the request for arbitration, is submitted to the City Manager the Union
Grievance Committee will request the State of Montana Board of Personnel Appeals, to
provide a list of five (5) arbitrators. The parties shall select an arbitrator by alternately
striking from the list, with the parties flipping a coin to determine who strikes the first
name. The last name left on the list shall be the arbitrator,
Part 3:
The arbitrator chosen shall be contacted immediately and asked to start proceedings at the
earliest possible date. During; the arbitration proceedings, all evidence shall be presented
to the arbitrator. The arbitrator shall have no power to alter Bozeman Municipal Code,
the terms of this agreement, State or Federal law. The arbitrator's decision shall be
within the scope of the terms of this agreement and the arbitrator will be requested to
issue the decision within twenty (20) business days after the conclusion of the
proceedings, including filing of briefs, if any.
Part 4:
The decision of the arbitrator is binding upon the parties,
Park 5:
The cost of the arbitrator shall be borne solely by the losing party.
ARTICLE 18: SUPPLEMENTAL AGREEMENT
By mutual agreement, the parties hereto lnay at any time negotiate additions or modifications to
this Agreement, which, after being mutually ratified, shall become a part of this Agreement as if
contained herein.
ARTICLE 19: TERM OF AGREEMENT
The terms and conditions herein set forth shall become effective on the I" day of July, 2012and
shall remain in full force and effect through the 30th day of June 2015, and annually thereafter
from 1 July through 30 June, unless one of the parties hereto serves written notice of desire for
modification upon the other party hereto, Such notice shall be served not less than sixty days
prior to expiration of this Agreement. Negotiations shall commence within ten days of the
request by either party for purpose of collective bargaining;, and shall continue in good faith until
settlement is reached.
15
ARTICLE 20: STRIKE PROVISION
Upon consummation and during the term of this Agreement, no Firefighter shall strike or
recognize a picket line of any labor organization while in the performance of his/her official
duties.
ARTICLE 21: SAVINGS CLAUSE
If any provision of this Agreement or the application of such provision should be rendered or
declared invalid by any court action or by reason of any existing or subsequently enacted
legislation, the remaining parts or portions of this Agreement shall remain in full force and
effect.
ARTICLE 22: Or' FICIAL DUTIES
Official duties as performed by a member of the Bozeman Firefighters shall be defined as
outlined in the City of Bozeman Job Descriptions.
ARTICLE 23: SALARIES & COMPENSATION
A. The Employer will pay a clothing allowance to each firefighter for clothing purchased by
him/her that is necessary for the performance of his/her duties. The salary schedule listed
on Addendum A has been increased to reflect this clothing allowance.
B. All time in service requirements used for calculating longevity pay, firefighter step
increases, promotion requirements, and seniority shall be calculated from the first day of
full -tinge employment with the City of Bozeman Fire Department,
C. Swim Center passes are available for each fiscal year at a cost of:
$10 per person
$45 for the employee and family living in the same household
The Swim Center pass will be honored at Bogert Pool during open swimming hours.
In Witness Whereof,
the parties hereto have set their hands this
FOR: CITY OF BOZEMAN
clay of�2412.
FOR, IAFF Local 613 BOZEMAN
FIREFIGHTERS'
City Manager — Chris K.ukulski on President — Joseph K.itowski
r F; : �� ► Un" n. S cretary — Scott Sanders
1883 .
17
ADDENDUM A
PAY MATES FOR FISCAL YEARS 2013 - 2015
A. Monthly salary rates effective July 1, 2012, July 1, 2013 and July 1, 2014. Full time
employees will be paid on a monthly basis.. Wages paid will be carried out to four (4)
decimal places,
Note: The Employer agrees to pay $35 per month to each member of the bargaining unit
who is a certified Basic EMT. The above salary schedule has been increased to
compensate members for this certification.
i13 This pay plan shall not apply to Uniformed Day Personnel vacancies filled via external recruitment.
Vacancies filled in this manner will be subject to the policies contained in tbo City's Employee Handbook.
B. Emergency Medical Certification Pay:
Certification
Monthly Salary
Position
.EY13
7/1/2012-
6/30/2013
FY14
7/1/2013-
6/30/2014
FY15
7/1/2014»
G/30/2015
Captain
$5,482.04
$5,619.06
$5,787.63
Firefiiter 1st Class
$4,772.81
$4,892.1.3
$5,038.89
4th Year Firefighter
$4,515,46
$4,62835
$4,767,20
3rd Year Firefi titer
$4,410.61
$4,520.88
$4,656.50
2nd Year Firefighter
$4,297,43
$4,404.87
$4,537.01
Probationary Firefighter (nionths 7-12)
$4,062.73
$4164.30
$4,289.23
Probationary Firefighter (mouths 1-6)
$3,667.17
$3,758.85
$3,871.61
Building;/Life Safety Specialist
$4,960.64
$5,084.66
$5,237.20
Staff Captain
$5,482.04
$5,619.09
$5,787.66
Training Officer
$5,482.04
$5,619.09
$5,787.66
Note: The Employer agrees to pay $35 per month to each member of the bargaining unit
who is a certified Basic EMT. The above salary schedule has been increased to
compensate members for this certification.
i13 This pay plan shall not apply to Uniformed Day Personnel vacancies filled via external recruitment.
Vacancies filled in this manner will be subject to the policies contained in tbo City's Employee Handbook.
B. Emergency Medical Certification Pay:
Certification
Monthly rate, paid as earned, to be added to
firefighter's base pay:
EMT — Intermediate
$60.00per month
EMT- Paramedic
$120.00 per month
Note: The employee will only be paid for the one highest certification that s/he Bolds
and, at no time will certification pay exceed $120 per month.
C. Lon evi : Each duly confirmed member of the Bozeman Fire Department is entitled to
longevity pay in addition to their base pay at a rate determined by the schedule below per
month for each additional year of service. For the purposes of calculating retirement
wages, longevity pay will be included in the firefighter's base pay.
Employees will receive additional longevity increments on their anniversary date. The
anniversary date for employees who are not in probationary status as of July 1, 1994 will
be July 1st of each year. The anniversary date for employees who are in probationary
status as of July 1, 1994 and employees hired after July 1, 1994 will be the anniversary of
their date of hire.
2-4 years of service
5-9 years of service
10-24 years of service
25+ years of Service
$10/nio/YOS
$12/mo/YOS
$14/mo/YOS
$350 Cap.
D. Hazardous Materials Technician Pay — Beginning on July 1, 2008, those employees
who meet the ininimum requirements of the Hazmat program will receive $50 per month.
There is a limited number of Hazmat Tech positions allowed, the number of which will
beat the sole discretion of the Fire Chief These appointments shall be made, and can be
revoked, at the sole discretion of the Fire Chief.
E. EMS Coordinator Pay .-.. Begirming on July 1, 2008, any employee appointed as the
Department's EMS Coordinator will receive EMS Coordinator Incentive Pay of 1.75% of
the monthly salary shown in the Monthly Salary Table above. There is a maximum of
one EMS Coordinator assignment and the appointment shall be made, and can be
revoked, at the sole discretion of the Fire Chief.
F. Hazardous Materials Coordinator Pay, — Beginning ori July 1, 2102, any employee
appointed as the Department's Hazardous Materials Coordinator will receive an
additional Incentive Pay of 1.75% of the monthly salary shown in the Monthly Salary
Table above. There is a maximum of one Hazardous Materials Coordinator assignment
and the appointment shall be made, and cann be revolted, at the sole discretion of the Fire
Chief. The added pay for this appointment will expire when three (3) Battalion Chiefs
are hired.
G. Engineer PM — Beginning on July 1, 2009, employees who are promoted to the position
of Engineer will receive 2.5% Engineer Pay, based on their current monthly salary, as
shown in the Monthly Salary table above.
H. Medical Expense RelruburLement Plan (MERP) -- Beginning July 1, 2012, with each
monthly payroll, the Employer shall make monthly contributions on a pre-tax basis for
each employee to the Washington State Council of Fire Fighters (WSCFF) Employee
Benefit Trust, in the following amounts:
19
FY13 July 1, 2012 $50/month
FY14 ---July 1, 2013 $75/month
FY 15 July 1, 2014 $100/znonth
1. These contributions are made in addition to the salaries listed in Article 23,
2. This Trust shall remain separate and apart from any Employer retiree health
insurance funding program unless changed by mutual agreement of the parties to
the agreement.
3. The Employer shall be obligated to payment of contributions in the amount
provided above by the twentieth (20) of every month for that month's
contributions.
4. The Internal Revenue Service codes require all eligible employees to participate;
there is no individual election to continue contributions. The Union and the
employees agree to hold the employer harmless and indemnify the employer from
any and all liability, claims, demands, law suits, and/or losses, damage or injury to
persons or property, of whatsoever kind, arising from and in any way related to
the implementation and administration of the MERP. The Union and the
employees shall be one hundred percent (100%) liable for any and all liabilities
that arise out of the MERP. The Union and employees shall be liable for any and
all tax penalties, as well as any other liabilities arising out of the implementation
and administration of the MERP. Under no circumstances whatsoever will the
employer be liable for direct pay of any MERP benefit to the employees and/or
retired employees and/or their beneficiaries.
20
ADDENDUM B
CITY OF BOZEMAN, MONTANA
SUPPLEMENTAL RETIREMENT PROGRAM
PURPOSE OF THE PROGRAM
1. To reduce the amount of sick leave taken by employees.
2. To reward employees for staying healthy.
3. To discourage abuse of sick leave.
4. To provide for a supplement of employee's retirement,
PROGRAM DESCRIPTION
1. Employees are allowed to move portions of their sick leave balance from sick leave to one
of the Employer's qualified deferred compensation plans. Sick leave hours converted to a
deferred compensation plan will be paid at 75 percent of the employee's hourly rate at the
time the hours are converted. This will occur during the month of September of each year
and cover fours as of June 30 of that year. Employees will not be able to take the hours in
the forn7 of cash for current uses, Employees' remaining sick leave balances will continue
to be paid at 25 percent of the employee's hourly rate at retirement or termination.
2. Sick leave fours eligible to move to a deferred compensation account are subject to the
following restrictions:
A. Hours converted for this purpose must come from Account #2 of the sick leave
accrual bank (See Article 15, Sick, Vacation and Bereavement Leave) until
Account #2 is exhausted.
B. Employees may not move sick leave hours if they do not have a minimurn of two
years' sick leave accrual (192 hours) on the books nor will they be able to move
any sick leave hours which cause their sick leave balance to fall below 192 hours.
C. The amount of sick leave eligible to move to a supplemental retirement account
will be determined on an annual basis as of June 30 of each year.
D. The amount of sick leave eligible to move to a supplemental retirement account
equals:
On an annual basis 72 hours of sick leave may be moved to a supplemental
retirement account so long as the employee complies with section 2.A. of
Addendum B.
3. The annual election to convert sick leave hours into deferred compensation under this
program is irrevocable. Once sick leave hours are converted, they cannot be "purchased
back" for use as leave at a future point in time,
21