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In the Matter of Petition for Declaratory Ruling International Association of Fire Fighters, Local 3564, Petitioner and City of Grants Pass, Intervenor Case No. 84-11 Declaratory Ruling by Commissioner Brad Avakian Issued January 13, 2012 SYNOPSIS The International Association of Firefighters, Local 3564 (“IAFF”) filed a petition for a declaratory ruling on behalf of its members who were employed by the City of Grants Pass (“City”) to determine whether the City is required to include authorized vacation and sick leave time when computing overtime wages for the IAFF’s firefighters, as required by ORS 652.080. The Commissioner ruled that the City was required to include authorized vacation and sick leave time when computing overtime wages for the IAFF’s firefighters, as required by ORS 652.080. The above-entitled case came on regularly for hearing before Administrative Law Judge Alan McCullough, designated as Presiding Officer (“ALJ”) by Brad Avakian, Commissioner of the Bureau of Labor and Industries for the State of Oregon. The hearing was held in writing. Petitioner, the International Association of Firefighters, Local 3564 ("IAFF”), was represented by Sarah K. Drescher, attorney at law. Intervenor, the City of Grants Pass ("City"), was represented by Bruce Bischof, attorney at law. The Bureau of Labor and Industries (“BOLI” or “the Agency”) made an appearance and was represented by case presenter Chet Nakada, an employee of the Agency.

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  • In the Matter of

    Petition for Declaratory Ruling

    International Association of Fire Fighters, Local 3564, Petitioner

    and

    City of Grants Pass, Intervenor

    Case No. 84-11

    Declaratory Ruling by Commissioner Brad Avakian

    Issued January 13, 2012

    SYNOPSIS

    The International Association of Firefighters, Local 3564 (IAFF) filed a petition for adeclaratory ruling on behalf of its members who were employed by the City of GrantsPass (City) to determine whether the City is required to include authorized vacationand sick leave time when computing overtime wages for the IAFFs firefighters, asrequired by ORS 652.080. The Commissioner ruled that the City was required toinclude authorized vacation and sick leave time when computing overtime wages for theIAFFs firefighters, as required by ORS 652.080.

    The above-entitled case came on regularly for hearing before Administrative Law

    Judge Alan McCullough, designated as Presiding Officer (ALJ) by Brad Avakian,

    Commissioner of the Bureau of Labor and Industries for the State of Oregon. The

    hearing was held in writing.

    Petitioner, the International Association of Firefighters, Local 3564 ("IAFF), was

    represented by Sarah K. Drescher, attorney at law. Intervenor, the City of Grants Pass

    ("City"), was represented by Bruce Bischof, attorney at law. The Bureau of Labor and

    Industries (BOLI or the Agency) made an appearance and was represented by case

    presenter Chet Nakada, an employee of the Agency.

  • HISTORY OF THE CASE

    On June 28, 2011, the IAFF filed a petition for a declaratory ruling on the issue of

    whether or not the City is required to include vacation and sick leave in calculating

    overtime pay for firefighters. The IAFF alleged that the City currently does not include

    vacation and sick leave in calculating overtime pay for firefighters. On July 29, 2011,

    the Commissioner responded, stating that he had reviewed the petition and planned to

    issue a ruling on it. On August 9, 2011, the City filed a petition to intervene. On August

    15, 2011, the Commissioner instructed the City to file an amended petition that

    addressed all the provisions in OAR 137-002-0025. On August 19, 2011, the City filed

    an amended petition to intervene that was granted by the Commissioner on September

    8, 2011.

    On September 28, 2011, the Commissioner issued a Notice of Hearing that set a

    hearing date of November 2, 2011, and appointed the ALJ to be the Presiding Officer in

    the proceeding.

    On October 6, 2011, the ALJ conducted a telephonic prehearing conference with

    the attorneys for the IAFF and the City. During the course of the conference, the IAFF

    and the City orally agreed to stipulate to three facts that the ALJ, the IAFFs attorney,

    and the Citys attorney considered necessary to resolve the legal issue in this case

    whether a City is required to include vacation and sick leave in calculating overtime pay

    for its firefighters who are members of the IAFF. Those facts are set out in the section

    of this Ruling entitled Findings of Fact.

    The IAFF and City both asked if the hearing could be conducted in writing as an

    alternative to driving to Eugene, anticipating that their oral argument at the hearing

    would differ little in substance from the written briefs that they planned to submit prior to

    the hearing. The City also requested that written briefs be simultaneously filed on

  • November 9, 2011, instead of November 2, 2011, the date set for hearing. The IAFF

    had no objection. The ALJ granted both requests.

    On October 8 and October 10, 2011, respectively, the City and IAFF stipulated in

    writing to the facts set out in the Findings of Fact.

    In an interim order issued on October 12, 2011, the ALJ confirmed the rulings

    made during the October 6 prehearing conference and ordered the IAFF and the City to

    file their written briefs on November 9, 2011. The ALJ also ruled that the Agency could

    elect to file a statement of Agency policy, a written brief by its counsel, or both, on that

    same date. The ALJ ordered the IAFF, the City, and the Agency to address the

    following issues, based on the stipulated facts:

    1. Is the City of Grants Pass required to include vacation and sick leave timewhen calculating overtime wages for firefighters employed by Intervenor, as setforth in ORS 652.080?

    2. Does ORS 653.269(5)(b) exempt the City of Grants Pass from complyingwith ORS 652.070 and 652.080?

    On November 8, 2011, the City asked for an extension until November 14, 2011,

    to submit briefs. The IAFF did not object and the ALJ granted the Citys request. On

    November 14, 2011, the IAFF and the City filed written briefs and the Agency filed a

    statement of Agency policy.

    IAFF OBJECTIONS TO THE CITYS WRITTEN BRIEF AND ATTACHED EXHIBITS

    On November 18, 2011, the IAFF filed a written objection to the Citys enclosure

    of and reference to documents related to the legislative history of the statutes at issue in

    its written brief. The IAFF based its objection on two grounds. First, the Citys

    reference to these documents included facts not stipulated to by the City and IAFF, in

    contravention of OAR 839-050-0280(1), which states that the ALJ is bound by any

    prehearing stipulation of facts, whether made orally or in writing. Second, the Citys

    inclusion of the exhibits and any argument related to that evidence constitutes

  • introduction of new evidence and violated the ALJs order, [OAR 137-002-0040(2)] and

    the stipulated fact agreement between the parties.

    In the forums view, the facts referred to in OAR 839-050-0280(1), as applied to

    this declaratory ruling, consist of any substantive facts related to the actual payment or

    nonpayment of overtime wages to the IAFF firefighters by the City. As an example, the

    terms of the collective bargaining agreement are a substantive fact. Therefore, any

    history related to collective bargaining between the City and IAFF constitutes a

    substantive fact and will not be considered by the forum in this ruling. In contrast,

    legislative history related to adoption or amendment of the statutes at issue is neither a

    non-stipulated fact nor other evidence that is subject to exclusion. As discussed in the

    section of this Declaratory Ruling entitled Opinion - Reasons Relied Upon in Support of

    Proposed Ruling, the forum is required to consider legislative history when it is offered

    by a party as an aid to interpreting a statute and does so in this ruling, giving it

    appropriate weight. However, the forum does not consider any substantive facts as

    defined earlier in this paragraph or argument related to such facts that were not among

    the stipulated facts set out in the Findings of Fact.

    PROPOSED DECLARATORY RULING & INTERVENOR'S REQUEST FOR ORALARGUMENT

    On December 5, 2011, the ALJ issued a Proposed Declaratory Ruling that

    contained the following proposed Declaratory Ruling:

    ORS 653.269(5)(b) does not exempt the City of Grants Pass fromcomplying with ORS 652.070 and 652.080. The City of Grants Pass isrequired to include authorized vacation and sick leave time whencomputing overtime wages for the IAFF firefighters it employs, as set forthin ORS 652.080.

    The Proposed Declaratory Ruling stated that Petitioner, Intervenor, and the Agency had

    the right to present oral argument to the Commissioner before the Commissioner issued

  • a Declaratory Ruling, and that such request must be made in writing and filed within 10

    days of the issuance of the Proposed Declaratory Ruling.

    On December 9, 2011, Intervenor, through counsel Bruce Bischof, timely

    requested oral argument before the Commissioner. Petitioner and the Agency did not

    request oral argument. On December 27, 2011, the ALJ issued an interim order setting

    the time, date, and location for oral argument at 10:30 a.m., January 18, 2012, at the

    Workers' Compensation Board, Salem Oregon. The interim order also noted that oral

    argument did not include presentation of any additional exhibits were not part of the

    record to date.

    On January 9, 2012, Intervenor, through counsel Bischof, filed written notification

    with the Commissioner stating that Intervenor does not seek oral argument in this

    matter." Intervenor also notified the Commissioner that Intervenor would be

    represented [f]rom this point forward by Gregory A. Chaimov, attorney at law.

    On January 12, 2012, the ALJ telephoned Ms. Drescher and Mr. Bischof and

    gave them official notice that oral argument was cancelled.

    FINDINGS OF FACT

    1. The City of Grants Pass (City) is an incorporated city in Oregon that

    employs four or more firefighters on a full-time basis in a regularly organized fire

    department.

    2. All firefighters employed by the City are members of the International

    Association of Fire Fighters, Local 3564 (IAFF). The City and IAFF are parties to a

    collective bargaining agreement (CBA).

    3. The City calculates overtime pay to firefighters based on the language of

    Article V of the CBA (Hours and Overtime), which is attached to and incorporated into

    these stipulated facts as Exhibit A.

    4. Exhibit A contains the following language:

  • "ARTICLE V - HOURS AND OVERTIME

    "5.1 Workweek. Regular Shift Employees: The work week for regularshift employees, to the extent consistent with the operating requirements of thepublic safety department fire services, and recognizing the necessity forcontinuous service