City
of
And
Interest
Arbitration
Arbitrator: John H. Abernathy
Date
Issued:
Arbitrator:
Abernathy; John H.
Case #: 02439-I-79-00063
Employer:
City of
Date Issued:
IN THE MATTER OF THE ) DECISION
AND AWARD
INTEREST ARBITRATION )
) OF
ARBITRATION PANEL
)
BETWEEN
)
) ON
THE ISSUES OF
) 1. wages
) 2. shift
differential
"THE POLICE ASSOCIATION" ) 3. sick leave
accrual
) 4. effective date of award
AND )
CITY OF YAK IMA ) IN THE
)
) City
of
"THE
CITY" ) Case
No. 2439-I-9-63
HEARING SITE: Holiday Inn
HEARING DATES: January 28 and 29, 1980
ARBITRATION PANEL:
Impartial Arbitrator Panel
Member Panel Member
and Appointed
by Appointed by
Chairman the Association the City
John H. Abernathy George D. Eastman Anthony F. Menke,
Esq
APPEARING FOR THE ASSOCIATION
Mr. John H. Rayback, Attorney
at Law
Mr. Michael Amos, Chairman
Mr. Victor M. Kusske, Patrolman
Mr. Michael A. Welton,
Patrolman
APPEARING FOR THE CITY:
Mr. L. J. Wittenberg, Assistant City Manager
Mr. H. J. LaRue, Chief of
Police
Mr. R. H. Weaver, Personnel Officer
Mr. R. J. Capen, Police Captain
Mr. A. C. Zerbach, Finance
Director
EXHIBITS
Joint Exhibit #1 1977-79 Agreement
City Exhibit #1 Complaint - ULP and Appeal (package)
BACKGROUND
During 1979 the
City of
to
the 1977-79 collective bargaining agreement (Joint Exhibit #1).
While the parties were able to resolve many of the
issuing in
dispute
during negotiations, they were unable to resolve others;
consequently,
mediation was requested. Further items
were resolved
in
mediation; however, on
of
the mediator, Executive Director Marvin L. Schurke of
the
Public Employment Relations
Commission certified that the remain-
ing issues were to be submitted to interest
arbitration as pro-
vided
in RCW 41.56.450. Schurke
also informed the parties to
proceed
with the appointment of partisan arbitrators and with the
selection
of a neutral chairman as provided in WAC 391-21-720,
et seq. The City named Mr. Anthony F. Menke of the
firm
of Elofson, Vincent, Hurst and Crossland
as their Partisan
Arbitrator; and the Police
Association appointed Mr. George D.
Eastman of Eastman Enterprises
in
Arbitrator. The Partisan Arbitrators then chose John H. Aber-
nathy, Arbitrator of Portland, Oregon, to serve
as Neutral
Arbitrator
and Chairman. Upon
his appointment as Chairman and
Neutral Arbitrator, Mr.
Abernathy wrote the partisan arbitrators
and
the parties accepting appointment in January 1980 and naming
January 28 and 29, 1980 as the
hearing dates. In later cor-
respondence to the partisan arbitrators and the
parties, Panel
Chairman Abernathy asked the
parties to submit lists of issues.
The parties subsequently
complied and their lists of issues
were
in agreement with respect to the following issues:
1. wages
2. shift differential
3. sick leave accrual
4. effective date of the award
There was, however, a dispute over the issue of shift
scheduling. The City moved that arbitration on this issue
be
withheld
until the Unfair Labor Practice charge in this matter
was
decided. The Arbitration Panel informed
the parties they
would
consider the City's motion as a threshhold issue at
the
arbitration
hearing. Subsequently, at the
arbitration hearing
on
and
testimony from the parties on this issue, and on January 29th
entered a
written decision on this issue which stated in relevant
part.
"... This Arbitration Panel will not hear and
will not make an
award on the shift scheduling
issue at this
time. If, however, the Public
Employment Relations Commission determines
this
is a mandatory issue
of bargaining, or if the
Public Employment Relations Commission specifi-
cally
orders this Arbitration Panel to hear this
issue, this
Arbitration Panel reserves the right
to reconvene this
hearing within a reasonable
period of time after
either such decision for the
purpose of receiving
evidence and argument on the
issue."
Copies of that written decision were then hand delivered
to
the counsels for the parties on
to
Mr. Marvin Schurke, Executive Director of PERC on the
same
date. At that point the hearing continued on the
other issues in
dispute
throughout the remainder of January 28th and into
January 29th.
In compliance with Chapter 184, Public Employees Collective
Bargaining-Impasse Procedures
for Uniformed Personnel, Section 2,
the
Arbitration Panel, once constituted, promptly established a
date,
time and place for the hearing. The
hearing was held.
Each party had the opportunity
to present evidence and make
arguments,
and to file post-hearing briefs. No
member of the
arbitration
panel presented a case for party at the proceedings.
The Impartial Chairman made a
tape recording of the proceedings
and
has consulted with other members of the arbitration panel.
The parties requested, and the Arbitration Panel granted,
permission
for the granting of post-hearing briefs.
On timely
receipt
of the City's brief on February 15th and the Associa-
tion's brief on February 11th, the Arbitration
Panel closed the
hearing
effective
On
offices
of Arbitrator John H. Abernathy in
the
purpose of reviewing the evidence and testimony provided in
this case. The report that follows contains written
findings of
facts
and decisions on the issues and disputes based on the
evidence
presented.
In making its decisions, the Arbitration Panel was
mindful
of
"the legislative purpose enumerated in RCW 41.56.430" and
additionally
was mindful of the guidelines provided in Section 3,
Chapter 184, as follows:
A. The
constitutional and statutory authority of the
Employer;
B. Stipulations
of the parties;
C. Comparisons
of the wages, hours and conditions of
employment of the
uniformed personnel of cities and
counties involved in
the proceedings with the wages,
hours, and
conditions of employment of uniformed
personnel of cities
and counties respectively of
similar size on the
west coast of the
D. The average consumer prices for goods and services,
commonly known as
the cost of living;
E. Changes
in any of the foregoing circumstances during
the pendency of the proceedings;
F. 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.
The parties did not argue the constitutional and
statutory
authority
of the Employer. The parties only
stipulated to their
issues
in dispute and to the positions of the parties on this
issue. The parties then only argued comparison of
wages,
comparability,
the cost of living, and changes in the cost of
living
which occurred during the pendency of the
proceedings.
In the report that follows, the issue will be identified,
the
positions of the parties on each issue will be outlined,
followed
by the Arbitration Panel's evaluation of the evidence
and
arguments in support of these Positions, and finally, the
award
on each issue.
ISSUES AND POSITIONS OF THE PARTIES
Issue #1 - Wages
The existing salary schedule, including the number of
officers
and the cost of that salary schedule is reproduced
below.
SALARY SCHEDULE AS OF
Monthly No. of Total
Wage Officers Cost
Patrolman, Step 1 1109 2 2,218
2 1198 5 5,990
3 1265 - -
4 1322 2 2,644
5 1505 51 76,755
Sergeant 4 1584 2 3,168
5 1662 13 21,606
112,381
(per month)
The Association presented a salary proposal which would
result
in salary improvements as follows:
YPPA SALARY PROPOSAL
Monthly
Wage (Months) Cost
Patrolman, Step 1 1316
3 3,948.
2 1422 55 78,210
3 1501 26 39,026
4 1569 19 29,811
5 1786 605 1,080,530
1,231,525 (annual cost
for patrolmen)
Sergeant 4 1956 - -
5 2052 180 369,360 (annual cost
for sergeants)
This Association proposal
includes the basic salary increase,
plus
any step increases that members of the bargaining unit are
eligible
for during the year. It does not include
the five
vacancies
which have occurred during the year. The
Association
estimated
the cost of this proposal without the five vacant
positions
for 1980 to be $1,600,885 which is $184,223 over the
compensation
paid for these same positions in 1979.
The Associa-
tion argues that this represents roughly a 13%
increase. In sup-
port
of their position, the Association pointed to the increase
in the
cost of living of approximately 11.1% that had occurred at
the
beginning of these negotiations, and that the cost of living
had
increased to approximately 18.5% from the last's year's con-
tract
during negotiations, and during, the pending of this hearing,
to
the date of the hearing. The Association
pointed out that
Consumer Price Index (CPI) as
well as changes therein during the
pendency of negotiations The Association argued that the Arbi-
tration Panel should award the. Association's wage
proposal for
that
reason alone.
In terms of comparability, the Association presented
materials
comparing the salaries in some 15
These cities and their
populations are as follows:
1979
Populations
Bell ingham 40,000
The Association found the average salary for the top step
police
officer in these cities for 1979 to be $1593 per month,
and
police officer salaries ranged between $1780 and $1786 per
month
for 1980. The 1979 top step police
officers in
received
$1505, or some $88 per month less than the 1979
average. When a similar comparison is made for the top
step
sergeant
Position, the average in these cities was found to be
$1825 for 1979 and between
$2045 and $2054 for 1980, where the
City of
Association argued that this
comparison further justified the wage
increase
sought by the Association.
The Association also contended that the City has the
ability
to
pay such salaries which was demonstrated by the 9.5% to 29.4%
increases
granted to management personnel within the City.
The City, on the other hand, maintained its last offer of
an
8.5% increase in the base salary schedule.
The City argued
that
when viewed from a total compensation perspective, and
considering
not only cost of living but comparability of cities
of
similar size, and the serious financial limitations of the
City, this is an equitable
wage offer. The City's proposed
increase
would result in a 1980 salary schedule as follows:
PROPOSED 1980 CITY SALARY SCHEDULE
Wage Officers Total
Cost
Patrolman, Step 1 1203 2 2,496
2 1300 5 6,500
3 1373 0 0
4 1434 2 2,868
5 1633 51 83,283
Sergeant
4 1719 2 3,438
5 1803 13 23,439
$121,934
The City argued that from a total compensation
standpoint,
when
the 8.5% wage increase is added to the improvements in
longevity,
retirement, shift differential, medical, dental and
life
insurance benefits, the total package will cost in the
neighborhood
of 10.5%. Many of these other cost items
have been
agreed
to previously in negotiations. In
considering
comparability,
the City argued that the appropriate comparison
in
terms of population were 11
the
category of one-half as large to twice as large as
The City presented, in its
comparison, the following:
COMPARABLE CITIES IN
ONE-HALF AS LARGE TO TWICE AS LARGE
AS THE CITY OF
Selection Criteria -- Must fall in at
least two categories
including
population - one-half as
large to
twice as large
A. Population -- 26,350 to 105,400
B. Square Miles - 6.5 to 25.8
C. Assessed Valuation -- $353,072,585 to $1,412,290,338
D. Number of Sworn Officers
43 to 174
Square Assessed Sworn
City Population Miles** Value*** Officers****
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
Average 40,143 19.7 674,649,180 59.5
*Source: State Officer of Financial Management;
Population
Enrollment and Economic
Studies Division. (1979
Estimate)
**Source: Table 1, 1980 Citizen's Guide To Local Government,
***Source: State Department of Revenue, State Auditor
"1978 Property Tax Collections and
Levies Due
in 1979." (7/79)
****Source: "
Office of the Attorney General
The 1979 salary for top police officers in these cities
is
shown in the table below.
1979 COMPENSATION RELATIONSHIPS
IN COMPARABLE WASHINGTON CITIES
FOR TOP POLICE OFFICER
City Annual Base
+ Base +
Base Pay 0/P Ben. All Ben.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
Average 17,951 21,544 23,621
A comparison shows that the
City of
average
in annual base pay and is over the average in base pay
plus
all benefits for the top police officer positions. So,
the
City argued, comparability does not justify the wage increase
beyond
that proposed by the City.
The City argued that the cities of
larger
than
population
respectively, compared with the approximate 53,000
population
of
the
"similar Size city" required by the law; therefore these
cities
Should not be considered in any comparability argument.
The City also objected to the radical change from the
11.1%
across-the-board
increase previously requested by the Associa-
tion to the new proposal for 18.67% increase for
police officers
and a
23.47% increase for sergeants. *
*Note: The difference in these cost percentages from those of
the
Association is due to inclusion of the five vacant
positions
and different costing methods.
The City argued that this is
an attempt by the Association to widen the gap in the
dispute
so that the Association can benefit from any split-the-
difference
approach that might be used in the final arbitration
award.
The City argued that their proposal was in line with
other
settlements
reached within the City of
the
Arbitration Panel should award the City's proposal of 8.5%
for
these reasons.
Analysis
The Arbitration Panel finds itself having to consider the
CPI and changes in the CPI
during the pendency of the hearing as
well
as comparability. With respect to the
CPI, the law simply
requires
that the Arbitration Panel consider such changes.
There is no requirement that
the Arbitration Panel award a wage
increase
equal in percentage amount to the percentage change in
the cost of living index. Rather, the cost of living is to be
considered
as one of several factors in arriving at determination
of
wages by the Arbitration Panel.
The Arbitration Panel agreed that the CPI changed from
the
beginning
to the end of negotiations; however, some cut-off
point
must be established for the process of negotiation, media-
tion and interest arbitration. Had the parties settled during
negotiations,
e.g., September, they would have used an earlier
CPI figure and would have been
faced with the problem of dealing
with
the CPI increase from September to January at the next
negotiations. Consequently, the Arbitration Panel
considered
earlier
CPI figures to be relevant.
The question of how the change in the CPI should be
applied
was
also raised in the hearing. The Association
argued that
it
should be compared to direct wages only.
On the other hand,
the
City argued that changes in the CPI could be compared to
total
compensation. The Arbitration Panel
noted that the CPI
as
constructed, includes changes in medical costs and that medical
costs
have been one of the fastest growing components of the
CPI. But medical costs are largely met for members
of this
bargaining
unit by the previously agreed to medical and dental
benefit
plans. Consequently, the Arbitration
Panel unanimously
concluded
that changes in the CPI should be compared against
direct
wages only, but changes in the CPI should be compared
to
changes in total compensation to avoid double-counting some
items.
With respect to the comparability, the Arbitration Panel
notes
that it is specifically directed to consider wages of
uniformed
personnel in cities and counties of similar size on
the
west coast of the
themselves
to cities within the State of
the
panel. Of the two comparisons, the
Arbitration Panel finds
that
the City's comparison using cities of one-half as large to
twice
as large more within the stated guidelines of the law
than
the Association's proposal, which included cities of up to
nine
times as large as the City of
comparison
proposed by the Association was rejected by the
Arbitration
Panel as not being within the meaning of the statute.
The question then became one of whether the Arbitration
Panel should consider the direct
wage increase only, or should
consider
parts of the economic package that had been arrived
at
earlier in negotiations in the total economic package con-
cept. In
its deliberation, the Arbitration Panel concluded
that
the other cost items with the exception of shift differen-
tial, had already been resolved by the parties
and should be
considered
by the parties and the panel in a total package
approach.
After weighing all the evidence and testimony presented
by
the parties in this case, the Arbitration Panel unanimously
concluded
that the monthly base salary for top step police of
ficers and sergeants should be increased
by 9.8% and that this
increase
should be reflected throughout the salary schedule.
Issue #2 - Shift Differential
The previous contract between the parties contained a
shift
differential
clause which provided that any shift beginning
from
8:01 p.m. to midnight would receive a 1% shift differential,
and
any shift beginning between 12:01 to 5:59 a.m. would receive
a
2% shift differential. The percentages
were applied to the
present
top step officer and sergeant respectively to get the
appropriate
dollar amounts. The Association is
asking that this
differential
be changed from a percentage amount to 25c per
hour
for the 8:01 p.m. to midnight shift, and 50c per hour for
the
12:01 to 5:59 a.m. shift. There are
roughly 12 people on
the
"A" Squad to start at 3:30 a.m.
Currently there are no
employees
who start work between 8:01 p.m. and midnight.
The
Association contends that this
cents per hour approach is more
in
tune with the number of hours that the police officer works,
and
would partially compensate him for the problems with family
life
and children in school incurred by working these odd hour
shifts.
The City contended that although shift differential pay
is
found
in the present contract, it is an unusual form of compensa-
tion.
Police officers are expected to work around-the-clock
schedules. Such schedules are normal parts of the job
and the
basic
salary of police officers reflects the demands of shift
work. To avoid continuous disruption, police
officers are
regularly
changed from one shift to the other. In
addition,
the
1979 agreement between the parties contained an article which
stated:
"No employee shall be required to work more
than six consecutive months on
any squad, nor
shall be required to work more
than six months
of any year on any one
squad."
The City contended that this
provision will be carried forth
in
1980. Consequently, a change in shift
differential pay
should
be continued in the 1980 contract.
Analysis
The Arbitration Panel noted that the parties had
previously
agreed
in principle to the concept of shift differential, and
had
built this in the contract. Neither
party had argued for
its
discontinuance. The City's position is
to retain the pre-
sent
approach, while the Association wishes to change from a
percentage
to a cents per hour approach. After
considering all
of
the facts, evidence, and arguments provided by the parties on
this
issue, the Arbitration Panel unanimously determined that
the
present shift differential should be changed from 1% and
2% to 15c per hour and 30c per
hour for the second and third
shifts
respectively.
Issue #3 - Sick Leave Accrual
Presently officers under LEOFF II are given 12 days of
sick
leave
when they join the department. For the
first year of
their
employment, therefore, they do not accumulate any more sick
leave. During their second year of employment, and
thereafter,
they
accumulate sick leave at the rate of one day per month.
The Association proposed the
four or five individuals who are
under
the LEOFF II program be given 15 days of sick leave upon
their
employment rather than the current 12, and accrue at the
rate
of 1 1/2 days per month for each year thereafter. The
Association pointed to an
LEOFF II officer who had started to
work,
was injured in training, was off for 15 days,and lost
pay
because he did not have enough sick leave to cover the
injury. The Association noted that many injuries are
apt to
be disabling
for more than 12 days and those injuries are just
as
likely to occur in the first year of employment as later.
The City is proposing no change in the sick leave
accrual.
The City argued that the
Association only pointed to one apparent
problem in
this area. That problem was
corrected. Whether
there
will be future problems of that same type is entirely
speculative. The City also argued that as the moving
party, the
Association has to show by
strong evidence the reasonableness
and
soundness of the proposed change. This
the City argued,
the
Association failed to do, and, therefore, the Arbitration
Panel should deny the
Association's request.
Analysis
The Arbitration Panel basically agreed with the City's
position
and denied the Association's request for change for the
reasons
argued by the City and for three other reasons.
One,
it
is a change from current practices that was not supported
by
strong evidence establishing its reasonableness and soundness.
Second, the Association could
only point to one problem in this
area,
and the City contended that this problem had been resolved.
Finally, if the Association's
proposal were granted, it would
apply
to only four or five employees in the total bargaining
unit. The Arbitration Panel unanimously agreed that
it was
poor
labor relations practice to write a contract provision for
exceptional
situations rather than the general rule.
For those
reasons
the Association's proposal was denied.
Issue #4 - Effective Date of
the Award
The Association requested that the award of the
Arbitration
Panel be
made retroactive to January 1, 1980. The
City on the
other
hand, has asked the Arbitration Panel make any award
effective
on the date that it was issued.
The Association argued that it is not the Association's
fault
that this arbitration did not occur prior to the close
of
calendar year 1979. Statutory schemes
set forth in RCW 41.56
clearly
indicate an intent by the legislature that these matters
be
resolved prior to the end of the calendar year so that
increases
may be effective on the first day of the new year.
The Association also argued
that there would be little, if any,
administrative
burden to make the award retroactive.
The City, on the other hand, in support of its contention
that
the award be made effective upon the date of issue, argued
that
there would be an administrative burden to go back to cal-
culate the award and deliver it to the
employees. The City also
argued
that the City was not at fault in causing this arbitration
hearing
to be delayed. Consequently, the City
should not have
to
bear the burden or cost of making the award retroactive.
The City argued that there was
an opportunity to settle this
dispute
in good faith without the use of arbitration, that the
Association caused arbitration,
that the arbitration only pro-
longed
the settlement period, and, therefore, the Association
should
bear the risk of non-retroactivity. The
City requested
the
Arbitration Panel to deny retroactivity in this case.
Analysis
The Arbitration panel found that the City was the party
initiating
the issue of non-retroactivity. There
was no evidence
that
the issue was ever raised except in the original demand for
negotiations. It was never discussed by the parties during
negotiations
and those negotiations had gone forth with a
generally
understood assumption that the settlement would be
effective
January 1, 1980. Furthermore, the
Arbitration Panel
could
not assign blame to either party for the length of time
it
took to select the partisan arbitrators, to select a neutral
arbitrator,
and find a mutually acceptable date for the hearing.
The Arbitration Panel also was
not convinced that providing
retroactivity
would constitute a major administrative burden.
Therefore, the Arbitration
Panel unanimously determined that the
items
awarded above should be effective as of January 1, 1980.
IN THE MATTER OF THE ) AWARD OF THE
INTEREST ARBITRATION )
) ARBITRATION PANEL
BETWEEN )
) ON THE ISSUES OF
YAKIMA POLICE PATROLMEN'S
ASSN. )
) 1) wages
) 2) shift
differential
"THE POLICE
ASSOCIATION" ) 3) sick
leave accrual
) 4) effective
date of award
AND )
CITY OF YAKIMA ) IN
THE
)
) City of Yakima Police Arbitration
"THE CITY"
)
Case No. 2439-179-63
After careful consideration of all oral and written argu-
ments and evidence and for the reasons set forth
above, the
unanimous
award of the Arbitration Panel on each of the issues
is
as follows:
1. Wages - Increase the monthly base salary for top
step Police Officers and
Sergeants by 9.8% and
reflect this increase throughout
the salary schedule.
2. Shift Differential - Change the present shift
differential from 1% and 2% to
15c per hour and
30c per hour for the second and third shifts
respectively.
3. Sick Leave Accrual - The Association's proposal
is denied.
4. Effective Date of the Award - The items awarded
above should be effective as of
January 1, 1980.
5. The Arbitration Panel retains jurisdiction for 30
days to resolve questions with
respect to the
implementation of this award.
Respectfully submitted on this
the 28th day of- February 1980
by
______________ _____________ _____________
John H. Abernathy George D. Eastman Anthony F. Menke
Impartial Arbitrator Panel Member Panel Member
and
Chairman Appointed by Appointed by
the
Association the
Association