Court Blocks Wilmington’s Move From Four Shifts to Three

A Delaware court has overturned an interest arbitration ruling that would have allowed the City of Wilmington to implement a three-platoon schedule for its firefighters as opposed to the four platoon schedule they had been working. The decision gets quite deep, so for those who do not care too much about advanced labor law issues, we will cover the simple highlights first. The finer points will be discussed below.

In 2019, the city and Wilmington Firefighters IAFF Local 1590 entered into negotiations for a new collective bargaining agreement to replace a three-year agreement expiring on June 30, 2019. Both sides sought to decrease the practice of browning-out companies, known in Wilmington as a “rolling bypass.” The city sought to do so by changing the firefighters working hours from a 24-72 hour (four platoon) schedule, to a 24-48 hour (three platoon) schedule supplemented with Kelly days. The firefighters opposed the change. When impasse was reached, the matter was submitted to binding arbitration pursuant to the Police Officers’ and Firefighters’ Employment Relations Act (POFERA).

The arbitrator ruled in favor of the city concluding the union failed to provide a plan that would help the city achieve the goal of reducing reliance on the rolling bypass. The union appealed the matter to the state’s Public Employment Relations Board who upheld the arbitrator. Local 1590 appealed to the Delaware Court of Chancery who found the arbitrator exceeded her authority.

That concludes the simple highlights. Now for the details.

Under Delaware law, matters submitted to binding arbitration are subject to what is referred to as “last best final offer” arbitration.  Under Delaware’s version of LBFO arbitration, the arbitrator must take seven factors into account:

1. The interests and welfare of the public.
2. Comparison of the wages, salaries, benefits, hours and conditions of employment of the employees involved in the binding interest arbitration proceedings with the wages, salaries, benefits, hours and conditions of employment of other employees performing the same or similar services or requiring similar skills under similar working conditions in the same community and in comparable communities and with other employees generally in the same community and in comparable communities.
3. The overall compensation presently received by the employees inclusive of direct wages, salary, vacations, holidays, excused leaves, insurance and pensions, medical and hospitalization benefits, the continuity and stability of employment, and all other benefits received.
4. Stipulations of the parties.
5. The lawful authority of the public employer.
6. The financial ability of the public employer, based on existing revenues, to meet the costs of any proposed settlements; provided that any enhancement to such financial ability derived from savings experienced by such public employer as a result of a strike shall not be considered by the binding interest arbitrator.
7. Such other factors not confined to the foregoing which are normally or traditionally taken into consideration in the determination of wages, hours and conditions of employment through voluntary collective bargaining, mediation, binding interest arbitration or otherwise between parties, in the public service or in private employment.

In its appeal, the union argued that the city’s “last final best offer” was incomplete in so far as it left certain terms open ended. In particular, the proposal merely stated:

• Effective 7/1/20, all Fire Suppression members of the Fire Department shall work a three (3) four (4) platoon system and a shift as determined and established by the Chief of Fire. as follows:
• One twenty-four (24) hour period 0800 0800 hours followed by seventy-two (72) hours off (24/72 Work Schedule).
• The term “A Complete Tour of Duty” in this subsection is defined as twenty-four (24) hours on, followed by seventy-two (72) hours off.
• Effective upon the implementation of a three (3) platoon system, additional hours off (“Kelly Days”) shall be scheduled to reduce the annual hours to 2496. As an example, if the Chief of Fire were to implement a three-platoon system with a Complete Tour of Duty of (24) hours on, followed by forty-eight (48) hours off, then each employee would be scheduled for an additional twenty-four (24) hours off as a Kelly Day every seventh (7th) shift.

According to the union, the proposal grants broad discretion to the fire chief and does not mandate a 24-48 schedule. Furthermore, to make the proposal workable, it required the arbitrator to add language relative to the 24-48 schedule to the proposal that was not in the city’s LBFO. The court agreed, concluding:

• [The arbitrator] erred by performing her statutory analysis only on the unwritten “essence” of the City’s LBFO.
• The POFERA makes clear that the plain language of a collective bargaining agreement is meaningful.
• The purpose of the POFERA is “to promote harmonious and cooperative relationships between public employers and their employees, employed as police officers and firefighters, and to protect the public by assuring the orderly and uninterrupted operations and functions of public safety services.”
• To achieve this objective, the POFERA “[o]bligat[es] public employers and organizations of police officers and firefighters . . . to enter into collective bargaining negotiations with the willingness to resolve disputes relating to terms and conditions of employment and to reduce to writing any agreements reached through such negotiations.”
• The POFERA requires a binding interest arbitrator’s determination to be grounded in the actual terms of an LBFO.
• When a binding interest arbitrator decides a resolution of the parties’ collective bargaining dispute, “the decision shall be limited to a determination of which of the parties’ last, best, final offers shall be accepted in its entirety.”
• This provision does not allow the arbitrator to “pick and choose between provisions of the two LBFOs, or create terms of her own.”
• The Executive Director was not permitted to modify the City’s LBFO or add terms based on the work schedule that the City’s consultants researched or that the City represented that it would implement, because that was not the work schedule reduced to writing in the City’s LBFO.
• Nor could the [Arbitrator] comply with the POFERA by assessing the costs and benefits of the City’s LBFO based on a non-binding illustrative application.

The court sent the matter back to the PERB for further proceedings. Here is a copy of the decision.