           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CITY OF EVERETT,                                 No. 77831-5-1

                        Appellant,               DIVISION ONE

                 V.

STATE OF WASHINGTON PUBLIC
EMPLOYMENT RELATIONS                             PUBLISHED OPINION
COMMISSION and INTERNATIONAL
ASSOCATION OF FIRE FIGHTERS,
LOCAL 46,

                        Respondents.             FILED: October 28, 2019

       SCHINDLER, J. — A public employer and a union representing public employees

have a duty to bargain in good faith on mandatory subjects of collective bargaining. It is

an unfair labor practice to insist on bargaining to impasse a non mandatory subject of

collective bargaining. During negotiations between the city of Everett (City) and the

International Association of Fire Fighters Local 46 (Union) on a successor collective

bargaining agreement, the Union proposed an amendment to "Article 27, Health and

Safety," to increase the minimum crew level of firefighters and paramedics on duty for a

24-hour shift. As a general rule, the determination of shift staffing is a fundamental and

strong management prerogative that is a nonmandatory subject of bargaining. The City

filed an unfair labor practice complaint against the Union, alleging the Union insisted on
No. 77831-5-1/2

bargaining to impasse the proposal to amend Article 27. The Washington State Public

Employment Relations Commission (PERC) balanced the City's managerial prerogative

over shift staffing with unrebutted evidence submitted by the Union that demonstrated a

direct relationship between the proposed amendment and the workload and safety of

the firefighters and paramedics. PERC concluded the proposed amendment to Article

27 was a mandatory subject of bargaining. The City appeals the PERC decision to

dismiss the unfair labor practice complaint.' The City cites International Ass'n of Fire

Fighters, Local Union 1052 v. Public Employment Relations Commission, 113 Wn.2d

197, 778 P.2d 32 (1989), to assert that without regard to workload and safety concerns,

as a matter of law shift staffing is never a mandatory subject of collective bargaining.

We disagree. In International Ass'n of Fire Fighters, Local Union 1052, 113 Wn.2d at

204, the Washington State Supreme Court expressly rejected the assertion that the

determination of shift staffing "never can be 'working conditions' included within the

scope of mandatory bargaining." While "staffing levels typically weigh on the

managerial prerogative side of the balance," where there is "a demonstratedly direct

relationship" to workload and safety, shift staffing may be a mandatory subject of

collective bargaining. Intl Ass'n of Fire Fighters, Local Union 1052, 113 Wn.2d at 207,

204. The court held,"Every case presents unique circumstances, in which the relative

strengths of the public employer's need for managerial control on the one hand, and the


         1 The Washington State Association of Municipal Attorneys filed an amicus curiae brief on behalf
of the City. The Washington State Council of Fire Fighters filed an amicus curiae brief on behalf of the
Union. We reject the argument that under RAP 10.3(a)(8) and RAP 10.4(c), the Washington State
Association of Municipal Attorneys is entitled to submit new evidence as appendices. The City filed a
motion to strike "various studies" and other new evidence referred to in the Amicus Curiae Washington
State Council of Fire Fighters' brief "regarding risk" to firefighters. Because PERC did not consider the
evidence presented by Amicus Curiae Washington State Council of Fire Fighters, we disregard the new
information. See Tapper v. Emp't Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993)(judicial review
is confined to the record before the agency).


                                                    2
No. 77831-5-1/3

employees' concern with working conditions on the other, will vary," and PERC must

carefully consider "meaningful distinctions in the circumstances" of each case. Intl

Ass'n of Fire Fighters, Local Union 1052, 113 Wn.2d at 207. Even if shift staffing is not

a per se mandatory subject of collective bargaining, the City contends PERC erred in

balancing the interests, and substantial evidence does not support finding a direct

relationship between shift staffing and workload and safety. We conclude PERC did not

err in balancing the strong fundamental prerogative of the City on shift staffing and the

unrebutted workload and safety testimony, and substantial evidence supports PERC

finding the Union demonstrated a direct relationship between the Union proposal to

increase the minimum number of crew on each shift and the workload and safety of the

firefighters and paramedics. We affirm the PERC decision.

City of Everett Fire Department

       The Everett Fire Department operates six stations and responds to residential

and commercial building fires, fires at the Navy shipyard, medical emergencies, and

emergencies on Interstate 5.

       The International Association of Fire Fighters Local 46 (Union) represents

firefighters, paramedics, captains, and battalion and assistant chiefs.

Article 27, Health and Safety

       In 1974, the city of Everett (City) and the Union agreed to include "Article XXVII,

Health and Safety Measures," in the collective bargaining agreement. Article XXVII

established a minimum number of firefighters on duty for each shift.

       In 1976, the City and Union reached an impasse on negotiating a successor

collective bargaining agreement. The City filed a declaratory judgment action. The City




                                            3
No. 77831-5-1/4

challenged the Public Employees' Collective Bargaining Act(PECBA)2 statutes, RCW

45.56.100 and .450, that impose mandatory mediation and interest arbitration on

mandatory subjects of collective bargaining.3 The City also sought a declaratory

judgment on whether a minimum crew for each shift was a mandatory subject of

bargaining. In City of Everett v. Fire Fighters, Local No. 350 of the International Ass'n of

Fire Fighters, 87 Wn.2d 572, 555 P.2d 418 (1976), the Washington Supreme Court

rejected the City's challenge to the statutes that require mediation and interest

arbitration. Because the court affirmed the order to engage in interest arbitration, the

court declined to address whether minimum crew requirements is a mandatory subject

of bargaining. However, the court noted, "It would appear that the size of the crew

might well affect the safety of the employees and would therefore constitute a working

condition, within the meaning of RCW 41.56.030(4) defining collective bargaining." City

of Everett, 87 Wn.2d at 576.

       On remand, the arbitration panel concluded minimum on-duty crew staffing for

each shift related to the safety of the firefighters and was a mandatory subject of

bargaining. With minor changes, the 1976 collective bargaining agreement and

subsequent collective bargaining agreements have included "Article 27, Health and

Safety."

       Article 27, Health and Safety, states:

       The parties recognize that manning (crew size, on duty shift force) vitally
       affects the efficient and economic operation of the Department in providing
       the best possible service to the community and, further, that changes from
       the present minimum level agreed to in prior contracts do affect the safety
       and job security of the members of the Union, and therefore agree as


       2 RCW 41.56.010 through .900, RCW 41.06.150.
       3 See LAWS OF 1975, 1st Ex. Sess., ch. 296, §§ 21, 29.



                                                  4
No. 77831-5-1/5

       follows:

      The City agrees to maintain a firefighting force of at least twenty-five (25)
      firefighters on duty at all times. The City further agrees to maintain at
      least three (3)firefighters on each fire suppression company, one of whom
      shall be a captain; to maintain two (2)firefighters on each aid car and to
      maintain a battalion chief who shall be on duty with each fire suppression
      platoon.

      The City further agrees to use the attrition method in reaching the twenty-
      five (25)firefighter minimum crew level. Attrition is defined as voluntary
      quit, dismissal for just and sufficient cause, permanent disability,
      retirement or death.

      Provided, however, that notwithstanding the foregoing, the City may,
      during the course of the contract year, seek to effect a change in the
      minimum manning provided by paragraph one above. If the City desires
      to effect such change, it shall propose to the Union a written proposal as
      to the reduction sought including reason for the change, prior to the date
      of the change.

2012-2014 Successor Agreement Negotiation

       In 2008, the City imposed a zero-growth budget for the fire department. In 2010,

the City reduced the minimum crew on duty for each shift from 33 to 28. However, the

City "neither reduced the number of personnel assigned to an apparatus nor changed

the number and type of apparatuses required to respond to calls." For a medical

emergency,"a minimum of seven people on an engine, a paramedic unit, and, possibly,

an aid unit" are required to respond. If no aid unit is available, "a second engine

responds." For a residential fire, "a minimum of 17 personnel respond." For a

commercial fire, "a minimum of 21 personnel respond."

       In 2014, the population and size of the City had grown to 104,900 citizens with an

area of 34.16 square miles, and the number of calls to the fire department had

increased to 21,389.




                                            5
No. 77831-5-1/6

      In 2014, the City and the Union engaged in negotiations for a successor

collective bargaining agreement. In response to the significant increase in workload

and safety concerns, the Union proposed an amendment to Article 27 to increase the

minimum crew on duty for each shift to 35. The proposed amendment to Article 27,

Health and Safety, provides:

      The parties recognize that manning (crew size, on duty shift force) vitally
      affects the efficient and economic operation of the Department in providing
      the best possible service to the community and, further, that changes from
      the present minimum level agreed to in prior contracts do affect the safety
      and job security of the members of the Union, and therefore agree as
      follows:

      The City agrees to maintain a firefighting force of at least twenty five (25)
      thirty five (35)firefighters on duty at all times. The City further agrees to
      maintain at least three (3) firefighters on each fire suppression company,
      one of whom shall be a captain; to maintain two (2) firefighters on each aid
      car and to maintain a battalion chief who shall be on duty with each fire
      suppression platoon.

      The City further agrees to use the attrition method in reaching the twenty
      five (25)thirty five (35)firefighter minimum crew level. Attrition is defined
      as voluntary quit, dismissal for just and sufficient cause, permanent
      disability, retirement or death.

      Provided, however, that notwithstanding the foregoing, the City may,
      during the course of the contract year, seek to effect a change in the
      minimum manning provided by paragraph one above. If the City desires
      to effect such change, it shall propose to the Union a written proposal as
      to the reduction sought including reason for the change, prior to the date
      of the change.[4]

      The City objected to the Union proposal to increase the minimum crew on duty

for each shift to 35. In a memorandum dated March 16, 2015, the City cited

International Ass'n of Fire Fighters, Local Union 1052 v. Public Employment Relations

Commission, 113 Wn.2d 197, 778 P.2d 32 (1989), to assert the Union proposal was a

"permissive—not mandatory" subject of collective bargaining. The Union disagreed and

      4   Alterations in original; emphasis in original.


                                                       6
No. 77831-5-1/7

insisted on bargaining the proposed amendment to impasse. The Washington State

Public Employment Relations Commission (PERC)executive director certified the issue

for resolution by mediation and, if necessary, interest arbitration.5

Unfair Labor Practice Complaint

        The City filed an unfair labor practice complaint with PERC. The City alleged the

Union violated the PECBA "by insisting to impasse on a permissive subject, namely,

shift staffing." The City alleged the Union proposal for "shift staffing, or 'minimum crew

level,' of 'thirty-five (35)firefighters on duty at all times,' "is a nonmandatory subject of

bargaining under Washington case law. The City requested PERC issue a cease and

desist order and award attorney fees.

        The Union filed an answer and affirmative defenses. The Union alleged the

amendment to Article 27 is a "mandatory subject of bargaining because shift staffing,

given the facts, directly relates to work load of unit personnel and the health and safety

of the unit personnel." The Union cited International Ass'n of Fire Fighters, Local Union

1052 to assert Article 27, Health and Safety, is a mandatory subject of bargaining

because "staff levels under the facts of this case have a demonstrably direct

relationship to employee workload and safety." The Union alleged, "While the call

volume for the City of Everett Fire Department has increased dramatically, the number

of personnel available to respond to the call volume has decreased over time," resulting

in health and safety concerns for the firefighters and paramedics. The Union requested

PERC to order the City to engage in mediation and, if necessary, interest arbitration and

award attorney fees.


        5 The letter of certification notes,"The employer has claimed, and notified the union during
mediation, that this issue is a permissive subject of bargaining."


                                                    7
No. 77831-5-1/8

       PERC Hearing Examiner Decision

       A hearing examiner conducted a four-day evidentiary hearing on the unfair labor

practice complaint. Several witnesses testified, including Everett Fire Department Chief

Murray Gordon, Everett Fire Department Administrative Coordinator Bonnie Netherby,

division and battalion chiefs, Oregon Health and Science University Sports Medicine

Chief and Human Performance Laboratory Director Dr. Kerry Kuehl, and occupational

and environmental medicine expert Dr. Carl Brodkin. The hearing examiner admitted

more than 100 exhibits into evidence.

      The hearing examiner rejected the City's argument that because shift staffing is a

core managerial prerogative "solely within the province of managerial prerogative," there

is "no need" to balance the City's managerial prerogative and the firefighters' concerns

regarding workload and safety. The decision and order states, in pertinent part:

      This case is not about the employer's right to determine its mission or set
      the scope of services it provides its citizens. Instead, it relates to how shift
      staffing levels that are set by the employer to provide those services
      impact firefighter safety. The union's proposal does not require the
      employer to reduce, increase, or eliminate the level of firefighting services
      it provides to its citizens.



      This case presents employee interests regarding workload and safety
      issues related to shift staffing levels. The validity of those interests have
      been acknowledged by the courts and Commission for forty years,
      including twice by the Washington State Supreme Court, where the court
      stated that the issue of shift staffing of firefighters "might well affect the
      safety of [the] employees and would therefore constitute a working
      condition." City of Everett, 87 Wn.2d [at 576]; [Intl Ass'n of Fire Fighters,
      Local Union 1052], 113 Wn.2d 197 (1989). When a subject touches on
      both employee interests in wages, hours, and working conditions and
      management prerogatives, those interests must be balanced.




                                             8
No. 77831-5-1/9

        The hearing examiner balanced the managerial prerogative of the City to decide

shift staffing levels and the workload and safety interests of the Union. The hearing

examiner concluded the Union "did not show a idemonstratedly direct' relationship

between cited safety interests and shift staffing levels to shift the balance in the union's

favor to make the shift staffing proposal at issue here a mandatory subject of

bargaining." The hearing examiner entered findings of fact, conclusions of law, and an

order requiring the Union to cease and desist from bargaining the shift staffing proposal

to impasse and seeking arbitration on the amendment to Article 27.

       PERC Decision

       The Union appealed the decision of the hearing examiner to PERC. The Union

argued the hearing examiner ignored the "unrebutted testimony" that established a

direct relationship between increased call volume and "the health impacts" to the

firefighters and paramedics. The Union cited testimony showing the "direct impact call

volume. . . has on workload, working conditions, health and safety of these Union

employees." In response, the City argued the Union did not establish "staffing at 28

creates unsafe conditions" and the Union did not present evidence "to tie their concerns

to specific staffing levels."

       PERC reversed the decision of the hearing examiner. PERC adopted findings of

fact 1 through 5 and findings of fact 7 through 17 from the hearing examiner decision

and entered findings of fact 6, 18, and 19. PERC found the Union "met its burden to

prove that staffing impacted workload and safety." PERC found,"The employees'

interests in workload and safety outweighs the employer's right to determine the number

of firefighters assigned to each 24-hour shift." PERC concluded the Union proposal to




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No. 77831-5-1/10

amend Article 27 to increase the minimum crew on duty for each shift was a mandatory

subject of bargaining.6

Petition For Judicial Review

        The City filed a petition for judicial review. The superior court certified the

petition for direct review. We accepted review under RCW 34.05.518(2).

        The Washington Administrative Procedure Act(WAPA), chapter 34.05 RCW,

governs our review of the PERC decision. RCW 41.56.165; Pasco Police Officers'

Ass'n v. City of Pasco, 132 Wn.2d 450, 458, 938 P.2d 827(1997). Under WAPA,

judicial review is limited to the record before the agency, and "the burden of

demonstrating the invalidity of the agency action rests with the party asserting

invalidity." Puget Soundkeeper All. v. Dep't of Ecology, 191 Wn.2d 631, 637, 424 P.3d

1173 (2018); RCW 34.05.558, .570(1)(a); Tapper v. Emp't Sec. Dep't, 122 Wn.2d 397,

402, 858 P.2d 494 (1993).

        The City alleges the PERC decision and order dismissing the unfair labor

practice complaint exceeds the statutory authority of the agency under RCW

34.05.570(3)(b), PERC erroneously interpreted and applied the law under RCW

34.05.570(3)(d), substantial evidence does not support the decision under RCW

34.05.570(3)(e), and the decision is arbitrary or capricious under RCW 34.05.570(3)(i).7

        In reviewing the PERC decision and order, we sit "in the same position as the

superior court, applying the standards of the WAPA directly to the record before the

        6 The PERC decision states it did not consider whether the parties previously "agreed to include a
subject in a collective bargaining agreement" in deciding whether the proposed amendment to Article 27
was a mandatory subject of collective bargaining.
         7 PERC filed a brief. The City argues we should disregard arguments PERC makes on the
merits. While the role of PERC on appeal is limited, we consider the arguments that are in response to
the City's assertion that PERC acted outside its statutory authority or erroneously interpreted and applied
the PECBA. See Kaiser Alum. & Chem. Corp. v. Dep't of Labor & Indus., 121 Wn.2d 776, 782, 854 P.2d
611 (1993).


                                                    10
No. 77831-5-1/11

agency." Tapper, 122 Wn.2d at 402. Because PERC is entitled to substitute its findings

for those of the hearing examiner, we review only the PERC decision on appeal. RCW

34.05.464(4); Yakima County v. Yakima County Law Enft Officers' Guild, 174 Wn. App.

171, 180, 297 P.3d 745 (2013); Yakima Police Patrolmen's Ass'n v. City of Yakima, 153

Wn. App. 541, 552, 222 P.3d 1217 (2009).

       Under the error of law standard, we may substitute our interpretation of the law.

Pasco Police, 132 Wn.2d at 458. However, we give "due deference" to an

administrative agency on matters falling within its area of expertise. Port of Seattle v.

Pollution Control Hr'gs Bd., 151 Wn.2d 568, 595, 90 P.3d 659 (2004). The substantial

evidence standard is deferential; we do not substitute our view of the facts for that of the

agency if substantial evidence is found. Yakima Police, 153 Wn. App. at 553. We may

grant relief from an agency decision and order if substantial evidence does not support

the findings"'when viewed in light of the whole record.'" Pasco Police, 132 Wn.2d at

458 (quoting RCW 34.05.570(3)(e)). Substantial evidence is"'evidence sufficient to

persuade a fair-minded person of the[]truth.'" Yakima Police, 153 Wn. App. at 552-53

(quoting City of Federal Way v. Pub. Emp't Relations Comm'n, 93 Wn. App. 509, 512,

970 P.2d 752 (1998)). Unchallenged factual findings are verities on appeal. City of

Vancouver v. Pub. Emp't Relations Comm'n, 180 Wn. App. 333, 347, 325 P.3d 213

(2014).

       Mandatory v. Permissive Subject of Collective Bargaining

      The PECBA defines "collective bargaining" as

      the performance of the mutual obligations of the public employer and the
      exclusive bargaining representative to meet at reasonable times, to confer
      and negotiate in good faith, and to execute a written agreement with
      respect to grievance procedures and collective negotiations on personnel


                                            11
No. 77831-5-1/12

        matters, including wages, hours and working conditions, which may be
        peculiar to an appropriate bargaining unit of such public employer, except
        that by such obligation neither party shall be compelled to agree to a
        proposal or be required to make a concession unless otherwise provided
        in this chapter.

RCW 41.56.030(4).8

        Washington law distinguishes between mandatory and permissive subjects of

collective bargaining. As defined in RCW 41.56.030(4), "personnel matters, including

wages, hours and working conditions," are mandatory subjects of collective bargaining.

Tissues that address 'wages, hours and other terms and conditions of employment' are

'mandatory' subjects about which the parties must bargain." Pasco Police, 132 Wn.2d

at 4609 (quoting Klauder v. San Juan County Deputy Sheriffs' Guild, 107 Wn.2d 338,

341, 728 P.2d 1044 (1986)). By contrast, "[m]anagerial decisions that only remotely

affect 'personnel matters'"and employer "decisions that are predominantly 'managerial

prerogatives' "are nonmandatory or permissive subjects of collective bargaining.

International Ass'n of Fire Fighters, Local Union 1052, 113 Wn.2d at 200.

       The parties must bargain in good faith "on mandatory subjects" of collective

bargaining. RCW 41.56.030(4); Kitsap County v. Kitsap County Corr. Officers' Guild,

Inc., 193 Wn. App. 40,45, 372 P.3d 769 (2016). If the parties reach an impasse on a

mandatory subject, the dispute is resolved through interest arbitration. Pasco Police,

132 Wn.2d at 460-61. The parties may bargain on nonmandatory or permissive

subjects of collective bargaining but are not required to do so. Klauder, 107 Wn.2d at

342-43; Kitsap County, 193 Wn. App. at 45. It is an unfair labor practice to refuse to


       8 We note the legislature has amended RCW 41.56.030 several times since 2012. LAWS OF
2015, 2d Spec. Sess., ch. 6,§ 1; LAWS OF 2017, 3d Spec. Sess., ch. 6,§ 808; LAWS OF 2018, ch. 253,§
6; LAWS OF 2019, ch. 280,§ 1. None of the amendments changed the definition of "collective bargaining."
       9 Emphasis in original.




                                                  12
No. 77831-5-1/13

engage in bargaining on a mandatory subject to impasse or to insist on bargaining a

nonmandatory subject to impasse. RCW 41.56.140, .150; Kitsap County, 193 Wn. App.

at 47.

         A fundamental responsibility of PERC is to determine the scope of mandatory

bargaining under the PECBA.           Ass'n of Fire Fighters, Local Union 1052, 113 Wn.2d

at 203. WAC 391-45-550 governs that determination:

         The commission deems the determination as to whether a particular
         subject is mandatory or nonmandatory to be a question of law and fact to
         be determined by the commission, and which is not subject to waiver by
         the parties or their action or inaction. It is the policy of the commission
         that a party which engages in collective bargaining with respect to a
         particular issue does not and cannot confer the status of a mandatory
         subject on a nonmandatory subject.

         Whether Shift Staffing is Never a Subject of Mandatory Collective Bargaining

         The City contends PERC erroneously interpreted and applied the law by deciding

that the shift staffing amendment both relates to conditions of employment and is a

fundamental managerial prerogative. The City cites International Ass'n of Fire Fighters,

Local Union 1052 to claim that without regard to workload and safety concerns, as a

matter of law shift staffing is a "fundamental prerogative of management" that is never a

mandatory subject of collective bargaining.

         In International Ass'n of Fire Fighters, Local Union 1052, 113 Wn.2d at 198-99,

the union proposed including a"'Standards of Safety' "provision in the collective

bargaining agreement to address the"'number and type of apparatus and the number

and rank of personnel responding to alarms.'" The city of Richland filed an unfair labor

practice complaint, alleging the union insisted on negotiating a nonmandatory subject of

bargaining to impasse. Int'l Ass'n of Fire Fighters, Local Union 1052, 113 Wn.2d at




                                             13
No. 77831-5-1/14

198-99. PERC concluded that because "equipment staffing 'has previously been held

to be a permissive subject of bargaining,'"the union committed an unfair labor practice

by bargaining a nonmandatory subject to impasse. Intl Ass'n of Fire Fighters, Local

Union 1052, 113 Wn.2d at 202 (quoting City of Richland v. Intl Ass'n of Fire Fighters,

Local 1052, No. 6289-U-86-1214, 1987 WL 383145, at *2(Wash. Pub. Emp't Comm'n

July 31, 1987)).

      The Washington Supreme Court reversed. The court concluded PERC

"abdicated its fundamental responsibility to determine the scope of mandatory

bargaining under the public employment collective bargaining laws." Intl Ass'n of Fire

Fighters, Local Union 1052, 113 Wn.2d at 203. Contrary to determining the scope of

bargaining based on the facts of the case, PERC assumed but did not decide the

dispositive issue of "whether Local 1052's proposal regarding equipment staffing and

deployment concerns a mandatory subject of bargaining." Intl Ass'n of Fire Fighters,

Local Union 1052, 113 Wn.2d at 202.

      The Supreme Court expressly rejected the claim that "staffing level decisions,

whatever their relationship to workload and safety, never can be 'working conditions'

included within the scope of mandatory bargaining." Intl Ass'n of Fire Fighters, Local

Union 1052, 113 Wn.2d at 204. The court held that

      rwlhen staffing levels have a demonstratedly direct relationship to
      employee workload and safety, however, we believe that, under
      appropriate circumstances, requiring an employer to bargain over them
      will achieve the balance of public, employer and union interests that best
      furthers the purposes of public employment collective bargaining laws.

Intl Ass'n of Fire Fighters, Local Union 1052, 113 Wn.2d at 204.10 The court expressly



      10 Emphasis added.


                                           14
No. 77831-5-1/15

states,"We have said as much before" and cites the decision in City of Everett:

      In [City of Everett], we deferred to arbitration the question of whether a fire
      fighter union's minimum shift proposal was a mandatory subject of
      bargaining, noting that
              the size of the crew might well affect the safety of the employees
              and would therefore constitute a working condition, within the
              meaning of RCW 41.56.030(4) defining collective bargaining.

Int'l Ass'n of Fire Fighters, Local Union 1052, 113 Wn.2d at 204 (quoting City of Everett,

87 Wn.2d at 576).

       The court held that where a subject of collective bargaining relates to working

conditions and a managerial prerogative, the scope of bargaining is determined on a

case-by-case basis by a "balancing approach." Intl Ass'n of Fire Fighters, Local Union

1052, 113 Wn.2d at 203. The court states workload and safety issues that concern

"wages, hours and working conditions" is a mandatory subject of collective bargaining,

while staffing level decisions are a strong and fundamental managerial prerogative. Int'l

Ass'n of Fire Fighters, Local Union 1052, 113 Wn.2d at 203, 205. "On one side of the

balance is the relationship the subject bears to 'wages, hours and working conditions'.

On the other side is the extent to which the subject lies 'at the core of entrepreneurial

control' or is a management prerogative." Int'l Ass'n of Fire Fighters, Local Union 1052,

113 Wn.2d at 20311 (quoting RCW 41.56.030(4); Spokane Educ. Ass'n v. Barnes, 83

Wn.2d 366, 376, 517 P.2d 1362 (1974)). "Where a subject both relates to conditions of

employment and is a managerial prerogative, the focus of inquiry is to determine which

of these characteristics predominates." Intl Ass'n of Fire Fighters, Local Union 1052,

113 Wn.2d at 203.




       11 Internal quotation marks omitted.


                                              15
No. 77831-5-1/16

       The court emphasized,"The law is clear that general staffing levels are

fundamental prerogatives of management." Intl Ass'n of Fire Fighters, Local Union

1052, 113 Wn.2d at 205. For example," lw]hether a community will have a large police

force, a small one, or none at all, is a very basic managerial decision which ultimately

must be determined by the voting public through its elected representatives.'" Intl

Ass'n of Fire Fighters, Local Union 1052, 113 Wn.2d at 205 (quoting City of Yakima v.

Yakima Police Patrolman's Ass'n, No. 2427-U-79-351, 1981 WL 376896, at *3(Wash.

Pub. Emp't Relations Comm'n Apr. 8, 1981)); see also Kitsap County, 193 Wn. App. at

53.

       The court states that "[c]ompared with shift staffing, . . . equipment staffing is not

so importantly reserved to the prerogative of management." Int'l Ass'n of Fire Fighters,

Local Union 1052, 113 Wn.2d at 206.

      The distinction often has been noted in the case law. In the Yakima
      Police[12] case, for example, where a shift staffing proposal was held to be
      a nonmandatory subject of bargaining, the examiner carefully avoided
      suggesting any conclusions about equipment staffing

Intl Ass'n of Fire Fighters, Local Union 1052, 113 Wn.2d at 206. But the court held that

while the managerial prerogative to decide staffing levels strongly weighs in favor of the

employer, PERC must carefully analyze the circumstances in each case and whether

there is also a demonstrably direct relationship to workload and safety working

conditions:

      Every case presents unique circumstances, in which the relative strengths
      of the public employer's need for managerial control on the one hand, and
      the employees' concern with working conditions on the other, will vary.
      General understandings—such as an understanding that staffing levels
      typically weigh on the managerial prerogative side of the balance of
      employer and union interests—may, of course, inform PERC's analysis.

      12   City of Yakima No. 2427-U-79-351.


                                               16
No. 77831-5-1/17

       But care must be taken to recognize meaningful distinctions in the
       circumstances of different cases.

Intl Ass'n of Fire Fighters, Local Union 1052, 113 Wn.2d at 207.

       We hold the Washington State Supreme Court decision in International Ass'n of

Fire Fighters, Local Union 1052 does not support the City's argument that without

regard to workload and safety, as a matter of law shift staffing is never a mandatory

subject of collective bargaining. Because the Union proposal to amend Article 27,

Health and Safety, to increase the minimum number of firefighters and paramedics on

duty for each shift both relates to "conditions of employment and is a managerial

prerogative," PERC did not err in balancing the City and Union interests to determine

"which of these characteristics predominates." Int'l Ass'n of Fire Fighters, Local Union

1052, 113 Wn.2d at 203.

       Application of the Balancing Test

       In the alternative, the City contends PERC erred in applying the balancing test by

not considering the fundamental management prerogative of the City to make shift

staffing decisions, improperly considering the public interest as a factor, and

disregarding the evidence the City presented on the budget and the cost of the

proposed amendment to Article 27.

              Managerial Prerogative

       Contrary to the City's argument, PERC considered the City's "strong managerial

prerogative" to set shift staffing levels. The unchallenged findings state:

      The employer has a strong managerial prerogative in being able to
      determine shift staffing levels. This prerogative has long been
      acknowledged by the Commission and courts. This is consistent with the
      fact that employers are tasked with determining their mission, setting
      service levels, and budgeting to provide those services.


                                            17
No. 77831-5-1/18



       PERC considered "the employer's interest in determining the size of its

workforce, the union's interests in workload and safety, and the public's interest in

receiving effective services." PERC recognized that "[s]hift staffing is generally a

permissive subject of bargaining" but concluded the Union presented "compelling

evidence" that the firefighters' "interests in workload and safety outweighs the

employer's right to determine the number of firefighters assigned to each 24-shift."

However, PERC notes:

       By finding the union's proposal in this instance to be a mandatory subject
       of bargaining, we are not finding that a proposal on minimum staffing
       would be a mandatory subject of bargaining every time the parties
       negotiate. Each round of bargaining would present facts for analysis.
       While this does not provide parties with certainty about what topics are
       mandatory subjects of bargaining, it does effectuate the appropriate
       balance.

              Public Interest

       The City and Amicus Curiae Washington State Association of Municipal

Attorneys contend PERC erred as a matter of law in considering the public interest in

determining whether workload and safety outweighed the fundamental managerial

prerogative to decide shift staffing. PERC found that "[i]ncreases in the number of calls

responded to each shift directly impact firefighters' safety and the safety of the public

they serve." PERC concluded, in pertinent part:

      In most cases, the Commission has recognized that the public acts
      through its elected representatives. City of Yakima,[No. 2427-U-79-351].
      However, in a case such as this, the public's interest in safety must be
      weighed. [Intl Ass'n of Fire Fighters, Local Union 1052], 113 Wn.2d at
      204. The public places its trust and safety in the hands of professional
      firefighters and paramedics. The public has a strong interest in receiving
      assistance from a firefighter that is not physically, emotionally, or
      psychologically fatigued from the effects of responding to 10 to 16 calls
      per shift. Each call may have a different physical, emotional, or


                                             18
No. 77831-5-1/19

      psychological toll on a firefighter. It is in the public's best interest that
      firefighters are able to respond in the best possible frame of mind so that
      they make sound decisions and move safely in high-risk situations.[131

      PERC did not err in considering the public interest. In International Ass'n of Fire

Fighters, Local Union 1052, 113 Wn.2d at 203, the Washington Supreme Court states

the legislature "delegated to PERC the delicate task of accommodating the diverse

public, employer and union interests at stake in public employment relations." The court

concluded that requiring an employer to bargain over staffing levels "under appropriate

circumstances . . . will achieve the balance of public, employer and union interests that

best furthers the purposes of the public employment collective bargaining laws." Int'l

Ass'n of Fire Fighters, Local Union 1052, 113 Wn.2d at 204.14

              Cost Evidence

      The City contends PERC erred in disregarding evidence of the cost of the Union

proposal to increase the minimum crew on duty for each shift. The City asserts the

exclusion of the evidence was arbitrary and capricious. An arbitrary and capricious

action is a"'willful and unreasoning action, without consideration and in disregard of

facts and circumstances.'" Wash. lndep. Tel. Ass'n v. Wash. Utils. & Transp. Comm'n,

110 Wn. App. 498, 515,41 P.3d 1212(2002)(quoting Pierce County Sheriff v. Civil

Serv. Comm'n for Sheriff's Emps. of Pierce County, 98 Wn.2d 690, 695, 658 P.2d 648

(1983)).

      PERC did not consider evidence that the City presented on the cost of the Union

proposal because the City provided specific cost information for the first time at the




      13  Emphasis added.
       14 Emphasis added.




                                            19
No. 77831-5-1/20

hearing:

        While the employer communicated to the union that the union's proposal
        was expensive, the employer did not tell the union that the employer could
        not afford the proposal. However, the employer introduced evidence at
        hearing about the cost of the union's proposal. Employer Exhibits 22 and
        23 showed the cost to pay a firefighter. Arguments raised only at hearing
        and not presented to the other party during negotiations should not be
        allowed to form the basis of a party's argument that a proposal is or is not
        a mandatory subject of bargaining. See [Intl Ass'n of Fire Fighters, Local
        29 v. ]City of Spokane,[No. 9648-U-92-2177]([Wash. Pub. Emp't
        Relations Comm'n June 23,] 1994).

        The decision not to consider the cost evidence was not arbitrary or capricious.

The record supports PERC finding the City did not present specific cost information until

the hearing. "[C]ollective bargaining includes the duty to provide relevant information" to

the other party. City of Bellevue v. Intl Ass'n of Fire Fighters, Local 1604, 119 Wn.2d

373, 383, 831 P.2d 738 (1992)(citing Nat'l Labor Relations Bd. v. Truitt Mfg. Co., 351

U.S. 149, 152-53, 76 S. Ct. 753, 100 L. Ed. 1027(1956)(good faith bargaining requires

a party asserting an "inability to pay" to present "some sort of proof of its accuracy").

PERC did not err in disregarding the cost evidence the City presented for the first time

at the hearing.15

        Findings of Fact on Increased Workload and Safety

        The City contends substantial evidence does not support a portion of finding of

fact 18 and finding of fact 19. The City challenges the following underlined portion of

finding of fact 18:

        Firefighting is an inherently dangerous, high-stress profession that impacts
        firefighter health and safety through exposure to chemicals or bodily fluids,
        ill or injured individuals, and fires. Increases in the number of calls

         15 For the first time on appeal, the City cites chapter 35.33 RCW to argue PERC "acted outside its
statutory authority" by impinging on the City's obligation to adopt a balanced budget. As the Union points
out in a supplemental brief, the City can present evidence on cost and the ability to pay at the mediation
and interest arbitration.


                                                   20
No. 77831-5-1/21

       responded to each shift directly impact firefighters' safety and the safety of
       the public they serve. As the number of calls increase throughout a shift,
       firefighters' mental and physical readiness for the next call are adversely
       impacted. Fatigue directly impacts safety.

Finding of fact 19 states, "The union established that staffing had a demonstratedly

direct relationship to firefighter workload and safety."

           Unchallenged findings of fact and unrebutted testimony establish a dramatic

increase in the volume of calls to the fire department with no increase in the number of

firefighters and paramedics to respond to the calls.

       The City of Everett has grown over the decades. In 1978, the population
       was 52,000 in an area of 22.68 square miles. There were 4,980 calls for
       service and the fire department was staffed with a minimum of 26
       firefighters per shift. In 2014, the population was 104,900 in an area of
       34.16 square miles. There were 21,389 calls for service and the
       department was staffed with a minimum of 28 firefighters per shift.

       A 2007 "needs assessment" for the fire department concluded:

       "[W]hen an engine company responds to 10 or more alarms per day, they
       are considered to be 'ineffective' for all subsequent responses or
       additional duties, such as training or inspections." The needs assessment
       identified the national standard of "effective" responses as less than 10
       calls per day.

A comparison of "the number of dispatches per unit" based on the City's 2012 annual

report showed "a decrease in the minimum number of firefighters on duty and the

increase in call volume resulted in firefighters responding to more calls throughout their

shifts."

       Captain Sebastian Sittig prepared a "statistical analysis of the number of calls

that Everett responds to" and "the number of calls their comparable departments"

responded to in 2014. Captain Sittig used a metric for "the total number of calls versus

the total minimum staffing" to show "how many calls each minimum staff is responsible




                                              21
No. 77831-5-1/22

for. . . responding to." Captain Sittig testified that in 2014, Everett firefighters

responded to "over 1,000 calls . . . per year" and the "vast majority" of other local

departments "are below 600."

       The City contends the evidence the Union presented does not support finding a

direct relationship between increased workload and firefighter safety. We disagree.

RCW 34.05.461(4) supports the decision to reject the City's characterization of the

testimony of the division and battalion chiefs as anecdotal evidence that could not

establish a direct relationship between workload and safety. PERC found:

       The battalion chiefs were in the best position to testify about the level of
       fatigue they had observed among their staff. Such observations are the
       type of evidence that reasonably prudent persons would rely on. Further,
       the employer did not rebut the battalion chiefs' testimony.

       The unrebutted testimony of the fire department chiefs and captains supports

PERC finding a demonstrably direct relationship between workload and safety. The

testimony established the increased demand to respond to calls resulted in safety risks

to the crews on duty for each shift.

       Battalion chiefs are shift commanders. Battalion Chief Roger Westlund testified

that response time is critical, but due to the increase in call volume, "there will be

delayed responses because rigs far away" will have to respond. Chief Westlund

testified the increased response time creates an "increased risk." Division Chief John

Gage also testified that the increased demand of 10 to 12 calls each day caused a

delayed response. Chief Gage testified there was a correlation "between delayed

response time and safety to the firefighter." Chief Gage described the safety protocol of

"two-in, two-out." The protocol requires a firefighter crew to wait to enter a burning

building until "another crew" is available to "come in and rescue us or back us up."


                                              22
No. 77831-5-1/23

Chief Gage testified the unavailability of units and crew to respond to increased call

demand means crew members "may have to do the work of two or three people while

you wait for that other unit to get there because they are delayed." Chief Gage testified

it was necessary to order crew members "to work more than 24 hours because of

shortages that we have." Chief Gage said, "[W]e have seen an increase in the number

of. . . on-the-job injuries." Chief Gage said the "illnesses, the sick leave" is "starting to

trend back upwards" and "is in direct relation" to the increase in call volume.

       Captain Michael Lande testified that his engine company averaged "10 to 15"

calls a day. Captain Lande said that in his last three shifts, "we've been running about

14, 15, 16 calls" each shift. Captain Lande said that "if" he slept during those shifts, "it

was probably for a half an hour." Captain Lande explained that decontamination and

cleaning the equipment is "critical." Captain Lande testified that on at least two

occasions, the crew did not have time to clean and decontaminate the fire truck before

responding to another call. Captain Lande testified he "had to sacrifice our health" in

order to respond to the next call.

       Battalion Chief Jeffrey Edmonds testified that the increase in call volume

prevents firefighters from training and performing inspections. Chief Edmonds said

training "is not occurring" and a firefighter "can't be a 911 responder without appropriate

training." The firefighters "don't have time" to train or "practice rescues" and delayed or

inadequate training is a "risk to the safety to the firefighters and the paramedics." Chief

Murray Gordon agreed that "not getting all the training in as is requested or normal

because of a lack of time" would "compromise to some extent the preparedness of the

firefighter. . . [t]o provide service."




                                              23
No. 77831-5-1/24

        Chief Edmonds testified that the increased "call volume" increased the workload

"for everybody" on duty:

       If an apparatus is on a call, they're obviously out of service and unable to
       respond to another call in their area. So that leaves other rigs to jump that
       and move in. So if there's a call in this area, which I've had, and no rigs
       are available that have — assigned to this area, another apparatus has to
       come out. So it increases everybody's workload around the city. Not just
       the areas where we do staffing, it increases the workload for everybody.

Chief Edmonds testified that "[o]n a fairly continual basis we'll have, if not all, most of

the units out of service." Chief Edmonds testified the firefighters are fatigued "as a

result of the calls and other duties they have." Chief Edmonds said it is rare that a

firefighter's "sleep is not interrupted."

       Battalion Chief Donald Plucker testified that 10 or 15 years ago, he could get

"members [to] come in off duty to staff rigs," but "it's an extreme challenge now. . . to

staff the rigs necessary to provide coverage of the city and to provide additional

manning at the incidents." Chief Plucker testified the firefighters are overworked and

fatigued and "[m]ore and more" firefighters are "calling in sick and injured." The record

also shows that in 2014, the number of "days away" the firefighters had due to injury

claims with the Department of Labor and Industries was 361. In 2015, the number of

"days away" from work increased to 525.

       Oregon Health and Science University Sports Medicine Chief and Human

Performance Laboratory Director Dr. Kerry Kuehl testified about "fatigue as it relates to

safety issues with firefighters." Dr. Kuehl testified, "[W]hen you get fatigued," there are

"mental deficiencies as you're not as astute and vigilant." Dr. Kuehl said a firefighter

"can maybe get by on some adrenaline for a while. But as that fatigue continues, you

lose posture stability, you lose muscular ability."


                                             24
No. 77831-5-1/25

       Dr. Kuehl testified about the lack of sleep and disease:

       [W]e know that if you get less than six hours of sleep in a 24-hour period
       — anyone not just firefighters — that's equivalent to smoking a pack of
       cigarettes a day on your heart. . . .
              The significant thing about that is in firefighters, in our studies that
       we published, they were getting about 5.7 hours of sleep, and that's
       across the board in a 24-hour period. So that places them at a high risk
       for cancer, heart disease, diabetes, metabolic syndrome, but that's the
       nature of the work. Now, there are certain departments that have less
       sleep than that depending on call volume, and there's departments that
       get more sleep than that.

Dr. Kuehl testified, "[W]e know that as call volume increases and firefighters have less

chance to get sleep, that cancer, heart disease, and injury rates go up."

       For the first time on appeal, the City argues Dr. Kuehl's testimony was "too vague

and speculative" under ER 702. The record does not support the City's argument. Dr.

Kuehl testified that "when I look at Everett's call volume, . . . there is a correlation

between sleep deprivation, fatigue, and injury."

       Occupational and environmental medicine expert Dr. Carl Brodkin testified about

the "correlation between the call load or the exposure load that firefighters have, and the

exposure to disease — the diseases they contract." The expert testimony of Dr.

Brodkin supports finding the increased exposure to hazardous conditions, the greater

the risk to a firefighter to suffer disease and adverse health outcomes.

       Dr. Brodkin testified that "firefighters have unique line-of-duty exposures" to

carbon monoxide, nitrogen oxide, and sulfur dioxide from fire smoke. Dr. Brodkin

testified that "exposures from [the] firefighting environment" can result in "both acute

short-term and chronic long-term health risks."

       Dr. Brodkin testified "strong evidence" supports a "relationship to the number of

exposures that a firefighter is subject to and disease that may be contracted." Dr.


                                              25
No. 77831-5-1/26

Brodkin described the "concept of dose response" and how "an adverse health affect

increases as the exposure increases." Dr. Brodkin stated that "increase in demand and

dose response increasing exposure is an important principle for firefighter risk."

       Dr. Brodkin testified that different cancers "tend to be dose-response" diseases

and the "greater the exposure to the carcinogen, the agent that causes cancer, the

greater the risk for developing cancer." Dr. Brodkin said, "Melanoma and other skin

cancers associated with light exposure, genitourinary cancers of the bladder and

kidney, the brain, and colon cancer are all dose-response diseases. The greater the

exposure, the greater the risk." Dr. Brodkin testified, "[O]n a more probable than not

basis," dose response and increased exposures creates "increased risk for respiratory

disease" in firefighters, a "greater. . . risk for developing cancer," and greater risk for

cardiovascular disease.

       Dr. Brodkin testified about a study of 360 retired firefighters that showed 77

percent of the retirements "were related to coronary heart disease."

      [T]he evidence of dose response was really in the setting in which this
      occurred. There was a fifty-fold increased risk — 5,000 percent increased
      risk with on-duty fire suppression activities, highly statistically significant.
      As well as a 600 percent increased risk associated with alarms.
              So these are periods of very high demand and, clearly, this is
      where the risk for coronary disease occurs. In fact, 30 percent of line-of-
      duty cardiac incidents of disease presenting occur during fire suppression.
      The highest demand, period. Even though fire suppression is probably —
      it's published about 5 percent of firefighter activities, it's 30 percent of
      coronary heart disease mortality.

       In an eight-year study of 812 firefighters in Seattle, Dr. Brodkin found "a marked

decline" in "fusing capacity." Dr. Brodkin defined "fusing capacity" as the "ability of

oxygen to travel from the airways after we inhale into the blood system through the

capillaries of the lung." Dr. Brodkin testified the study showed a "significant association"


                                             26
No. 77831-5-1/27

between the "greater the number of calls, the greater the risk for the respiratory impact."

Another study showed that when "[3] firefighters per ladder or engine" increased to 4,

the crews "experienced a 25 percent reduction in time loss injuries as well as a dramatic

71 percent reduction in shifts lost due to injury."

       The City contends Dr. Brodkin's reliance on studies related to health concerns

and dose response in firefighters was too vague or speculative to show a direct

relationship between workload and firefighter safety. We disagree. Without objection,

Dr. Brodkin testified:

       Based on the information I've presented I certainly have concluded that
       firefighting represents a unique operation with substantial health hazards
       related to exposure and, therefore, exposure-related illness. And
       increasing work demand, including demand from manning and staffing
       requirements, including the dose response and the demand and control
       issues that increase risk for job strain, all of these result in increased
       exposure not only to chemical agents, but physical stressors, as well as
       psychological stressors with concomitant risk for disease and adverse
       health outcomes. And certainly, this would include acute and chronic
       exposure-related health impacts, including musculoskeletal injury,
       cardiovascular disease which we've talked about, respiratory disease
       which we've talked about, occupational cancers, as well as mental health
       conditions.[161

       The uncontroverted testimony supports the unchallenged finding that states:

       Firefighters have safety interests that are related to shift staffing. When
       firefighters respond to service calls, they are exposed to hazardous
       elements that can cause physical and psychological injuries. Some of
       these elements include smoke,fumes, dangerous chemicals, blood-borne
       pathogens, and being struck by falling objects or vehicles. The exposure
       to these elements can lead to immediate injury or illness, or to more long
       term impacts as a result of cumulative exposure. Responding to
       increased numbers of service calls increases exposure to risk elements.

       We conclude substantial evidence supports finding that the increase in the

number of calls responded to during each shift directly impacts the firefighters' safety


       16   Emphasis added.


                                             27
No. 77831-5-1/28

and the Union established shift staffing has a demonstrably direct relationship to

workload and safety.

      We affirm the decision of PERC.




WE CONCUR:




                                            28
