And
City
of
Interest
Arbitration
Arbitrator: Michael H. Beck
Date
Issued:
Arbitrator:
Beck; Michael H.
Case #: 04369-I-82-00098
Employer:
City of
Date Issued:
IN THE MATTER OF
CITY OF
and
MANAGEMENT ASSOCIATION
AAA No. 75 39 0014 83
PERC No. 4369-I-82-98
Date Issued:
INTEREST ARBITRATION
OPINION AND AWARD
OF
MICHAEL H. BECK
Appearances:
CITY OF
IN THE MATTER OF
CITY OF
and
MANAGEMENT ASSOCIATION
INTEREST ARBITRATION OPINION
OF THE ARBITRATOR
PROCEDURAL MATTERS
RCW 41.56.450 provides for arbitration of disputes
when
collective bargaining negotiations have resulted in im-
passe. The
undersigned was selected by the parties to serve
as
the Neutral Chairman of the tripartite arbitration panel.
The Arbitrator selected by the
Employer, City of
William E. Hauskins,
Labor Negotiator. The Arbitrator se-
lected by the Union, Seattle Police Management
Association,
is
Lt. P. C. Vande Putte.
A hearing was held before the Arbitration Panel on
May 10, May 11, June 9 and
H. Webster of the law firm of Durning,
Webster & Lonnquist.
At the hearing, the testimony of witnesses was taken
under
oath and the parties presented voluminous documentary
evidence. The parties did not provide for a court
reporter,
and,
therefore, the Chairman tape recorded the proceedings
for
the sole purpose of supplementing his personal notes.
In view of the substantial testimonial and documentary
evidence
presented, the Chairman requested that the parties
provide posthearing briefs.
The parties agreed to this sug-
gestion and excellent posthearing
briefs were filed by each
party. Those briefs were received by the Arbitrator
on July
22,
1983. At
the request of the Arbitrator, the parties
agreed
to waive the statutory requirement that a decision
issue
within thirty days thereafter.
On
members
of the Arbitration Panel. A wide-ranging
discussion
of
the issues was held which was extremely helpful to your
Chairman. In accordance with the statutory mandate, I
set
forth
herein my findings of fact and determination of the
issues,
which I have labeled an Interest Arbitration Opinion
and
Award, as that is the manner in which arbitrators gene-
rally
label these decisions.
ISSUES IN DISPUTE
At the time the Executive Director of the Public
Employment Relations
Commissions determined that this matter
should
be submitted to interest arbitration, he indicated in
his
letter of
that
seventeen issues remained unresolved between the
parties. These issues are listed below:
Overtime Compensation
Standby Compensation
Work out of Class
Clothing Allowance
Retention of Benefits
Medical Insurance
Medical for Retirees
Dental Benefits
Duration
Salary
Pay Steps
Retroactivity
C.O.L.A.
Longevity
Shift Differential
Grievance Procedure
Two of the seventeen issues were removed from consid-
eration by the Arbitration Panel due to the
stipulation of
the
parties. The parties stipulated that the
duration of the
agreement
should be one year from
the
question of duration resolved, but the C.O.L.A. issue is
rendered
moot by the fact that the C.O.L.A. allowances sought
by
the Union were for the second and third years of a pro-
posed
three year agreement. Thus we have
fifteen issues which
must
be addressed by your Chairman.
SALARY RELATED ISSUES
The Proposals
There are three direct salary related issues. These
are
listed below:
1. Salary
2. Pay Steps
3. Longevity
The bargaining unit is composed of thirty-seven lieu-
tenants,
fourteen captains, and six majors in the City of
Seattle
Police Department.
The Union proposes a one step monthly salary schedule.
The Employer proposes a three
step salary schedule in the
same
configuration as is presently in the expired agreement.
The Employer has two
alternative proposals. I have set forth
below a
chart which shows the monthly salary at the final
step
for each of the three classifications effective on the
last
day of the prior agreement, the salary figures indicated
by
the two Employer proposals, the salary figures indicated
by
the Union proposal, and the percent increase indicated by
Employer alternative no. 2 and
the Union proposal above the
8/31/82
figures.
__________
MONTHLY SALARIES TOP STEP
Employer
Proposals Union Proposal
(only
8/31/82 Alt.
1 Alt. 2 %
Increase step) % Increase
Lt. 3166 3269 3291 (3.95) 3490 (10.23)
Capt. 3640 3758 3765 (3.43) 4014 (10.27)
Major 4180 4316 4305 (2.99) 4615 (10.41)
__________
The Employer states in its brief that its
alternative
no.
1 reflects a 3.25% increase in each classification. Its
alternative
no. 2 is based on a flat increase of $1500 across
the
board.
The Union also proposes a longevity premium of 2%
after
five years of completed service, 4% after ten years of
completed
service, 6% after fifteen years of completed ser-
vice,
8% after twenty years of completed service, and 10%
after
twenty-five years of completed service.
The City pro-
poses
not to add any longevity premium to the contract.
Arbitrator Discussion
A review of the foregoing makes clear that the parties
have
vastly different positions as to the appropriate amount
of
wages to be paid to the members of the Seattle Police
Management Association during
the year September 1, 1982,
through August
31, 1983. A major reason for this
disparity
is
that the parties have not selected the same cities as
comparables. Reliance on comparables is based upon the
statutory
direction to the Arbitration Panel contained in
RCW 41.56.460, which provides
that:
In making its determination,
the panel shall be
mindful
of the legislative purpose enumerated
in
RCW 41.56.430 and as additional standards or
guidelines
to aid in reaching a decision, it
shall
take into consideration the following
factors:
...
(c) Comparison of wages, hours and condi-
tions of employment of the uniformed
personnel
of cities and counties in-
volved in the proceedings with the
wages,
hours, and conditions of em-
ployment of uniformed personnel of
cities
and counties respectively of
similar
size on the west coast of the
United States.
The legislative purpose enumerated in RCW 41.56.430,
which
RCW 41.56.460 directs the Arbitration Panel to be
mindful
of is set forth below:
The intent and purpose of this
1973 amenda-
tory act is to recognize that there exists a
public
policy in the state of Washington
against
strikes by uniformed personnel as a
means
of settling their labor disputes; that
the
uninterrupted and dedicated service of
these
classes of employees is vital to the
welfare
and public safety of the state of
Washington; that to promote
such dedicated
and
uninterrupted public service there should
exist
an effective and adequate alternative
means
of settling disputes.
The Employer contends that there are eight cities on
the
west coast which "traditionally" have been used as the
comparable
cities in proceedings of this type. The
Union
would
consider seven of the eight cities listed by the Em-
ployer as comparables, but would remove Tacoma
since it does
not
meet the 200,000 threshold, which the Union believes
appropriate. However, the Union would add an additional
five
cities, giving it a total of twelve comparable cities.
In the next chart, I have set
forth the cities that both the
Employer and the Union contend
are the comparable cities,
their
population, and the population differential between
each
and Seattle.
In setting forth the population figures I have
examined
both the Union's Exhibit (No. 4), and the Employer's
Exhibit (No. 80). Where I have population figures for the
same
city from each exhibit, I have taken an average of those
two
population figures and rounded to the nearest 5,000. For
the
sake of consistency, I have also rounded to the nearest
5,000 the population figures
for the other cities which
appear
only on one of the two exhibits.
__________
CITIES SUGGESTED BY ONE OR
BOTH PARTIES
Percent
above Percent
Employer Union Population
to Seattle Seattle
City Selected Selected nearest 5,000 pop. above pop.
Seattle 495,000
Portland x x 365,000 36
Long Beach x x 360,000 38
Oakland x x 340,000 46
Sacramento x x 275,000 80
Anaheim x 220,000 125
Fresno x 215,000 130
Santa Ana x 205,000 141
Anchorage x 170,000 191
Tacoma x 160,000 209
__________
The Union developed, with the aid of Dr. David
Knowles, Associate Professor
of Economics, Albers School of
Business,
Seattle University, an economic theory that Dr.
Knowles referred to as the
"threshold test”. This test was
based
upon a determination that once a city reached 200,000
population
its police management officials would face similar
problems
and have comparable duties and responsibilities.
As I understand the Union's
reasoning, if your Chairman
agreed
with this conclusion, then he would also have to con-
dude
that all cities of 200,000 or more would be comparable
in
the economic sense contemplated by RCW 41.56.460. Addi-
tionally, although Dr. Knowles would drop Tacoma
from the
comparables
since it did not have a population of 200,000,
he
would add Anchorage because that city, being a port city
and
the largest city in the State of Alaska, would also have
to
be considered similar in an economic sense to Seattle.
The Employer, on the other hand, points out that
with
respect to the eight cities it has selected all, except
Tacoma, are within the 250,000
to 1,000,000 population
grouping. According to the Employer, this grouping is
appropriate
for Seattle because Seattle is right between two
traditional population
groupings used both by the Interna-
tional City Management Association and by
municipal bond
rating
agencies such as Moody's. These two
groupings are
250,000 to 499,999 and 500,000
to 1,000,000.
I start my determination of which cities to consider
as
the comparable cities by carefully examining the statu-
tory language establishing comparables as a
factor to be taken
into
consideration by the Arbitration Panel.
The key language
has
been quoted earlier in this Opinion and it is, " cities
of
similar size on the west coast of the United
States". The parties are not in dispute that the word
size
refers
to population as opposed to area. Nor
are the parties
really
in dispute regarding the phrase “west coast of the
United States". Although the Employer would not include
Anchorage, it does not argue
that it is not a west coast
city. Furthermore, both parties are willing to
consider
cities
such as Sacramento and San Jose whose borders do not
literally
touch the coast line of the United States.
The
area
of disagreement between the parties revolves around the
term
“similar”.
With all due respect to Dr. Knowles, who clearly is
well
qualified as an economist, I do not believe the statu-
tory language "similar size" is broad
enough to encompass
the
threshold test he developed. This seems
particularly
true
in the case of the city such as Los Angeles whose popu-
lation is nearly 500% larger than that of
Seattle. Nor does
the
statutory language contemplate including a city such as
Anchorage, Alaska, merely because
it is the largest city in
one
of the states on the west coast; particularly when ex-
cluding a city such as Tacoma, Washington, which is
a city
of
similar size to Anchorage and has geographic proximity
to
Seattle. Seattle has approximately 200%
more people than
either
Anchorage or Tacoma and, therefore, cannot be con-
sidered to be a city of similar size.
Santa Ana, Fresno, and Anaheim have populations of
approximately
205,00 to 220,000. Seattle has 125% to
141%
more
people than these three cities. Again, I
cannot find
any
of these three cities to be cities of similar size to
Seattle.
Finally, it would appear appropriate to eliminate
Sacramento
and San Diego as possible comparables. Sacra-
mento has only 275,000 people. Seattle is 80% larger. San
Diego, with 875,000 people, is
77% larger than Seattle.
After carefully studying the population figures, it
is
my view that the five cities I have not eliminated consti-
tute an appropriate group of cities for
comparison with
Seattle. In this regard, I note that Seattle is just
about
in
the middle in population of the five comparables in that
it
is smaller than San Francisco and San Jose, but it is
larger
than Portland, Long Beach and Oakland.
Where to draw the line with respect to choosing com-
parable
cities is a difficult question. Wherever
it is
drawn,
the determination may appear somewhat arbitrary. In
making
my determination I selected only those cities which
are
relatively close in population, but have included enough
cities
so that the comparable group has a sufficient number
of
cities to provide an adequate sample for the purposes
intended
by the statute. To include cities like
San Diego
that
have a population of 75% or more than that of Seattle
would,
in the opinion of your Chairman, not be in accord with
the
statutory mandate to compare cities of similar size.
Likewise, to compare Seattle,
with a population 80% greater
than
that of Sacramento, to Sacramento also would not consti-
tute a comparison within the statutory direction
to compare
cities
of similar size.
The cities I have selected have a population per-
centage difference vis-a-vis
Seattle which falls in a narrow
range
between 27% and 46%. The statutory
mandate is to
select
such cities so that each city selected can reasonably
be
said to be of similar size to the city in question. The
statutory
language does not provide or even contemplate the
selection
of cities of vastly different sizes. The
fact that
the
overall average of such cities turns out to be similar to
that
of the city in question does not make the cities
selected
of "similar size”.
I have carefully studied the evidence in support of
the
Employer's position that the eight cities it desires are
the
traditional cities used in such groupings.
However, it
is
clear that such cities have never been used in connection
with
this bargaining unit, since this is the first interest
arbitration
this bargaining unit has undergone. In
fact,
the
record is void of any indication that any police manage-
ment unit in this state has gone to interest
arbitration.
The Employer has submitted a small portion of each of
three
decisions in support of its position.
The first was
not
an interest arbitration but a fact finding by Dr.
Charles Lacugna. This 1974 decision involved the City of
Seattle
and its firefighters and police officers. That case
involved a
stipulation of the parties regarding comparable
cities.
The second opinion is a 1977 interest
arbitration by
Philip Kienast
involving the City of Seattle and the Seattle
Police
Officers Guild. In
that case, the parties agreed
that
Portland and Long Beach were the comparable cities.
The other six cities were
included as a "secondary group",
mainly
because one side suggested three and the other side
suggested
three others.
The third decision is a 1983 decision by Kienast
in-
volving the City of Seattle and its
firefighters. Again,
only a
short excerpt from that opinion was introduced and,
therefore,
it is difficult to tell exactly what Kienast held
there. It does appear, however, from the excerpt
that Kienast
determined
to give primary consideration to the eight cities
the
Employer contends are traditional, regarding the question
of
appropriate work week for the city firefighters, based on
the
negotiating history of the parties there.
I agree with the Employer that it would be helpful if
the
parties could rely on a constant set of comparable cities
in
conducting their negotiations. Perhaps
the ones I here
find
comparable will serve that purpose.
However, I cannot
find
that the Employer has established that the cities it
selected
are the traditional cities appropriate for selec-
tion on that basis alone.
A great deal of wage and salary information was pre-
sented by both parties. I was particularly impressed by the
thorough
manner in which the City's labor relations analyst,
Lizanne Lyons, prepared the data she presented. I have
relied
heavily on this data, particularly in connection with
a
determination of the appropriate base monthly salary.
The Union specifically seeks a 15% differential be-
tween lieutenants and captains and again between
captains and
majors. The Employer alternate proposals would
provide dif-
ferentials of 14% to 15%. Additionally, the wages received
by
captains and majors as of August 31, 1982, also reflected
an
approximate 15% differential between each of these classi-
fications and the next lowest pay grade. Therefore, I shall
set
the base monthly salary top step for a lieutenant and
add
15% for the captain and 15% above the captain for the major.
As of January 1, 1983, the average base monthly
salary
at the top step for lieutenants in the five comparable
cities I
have selected was $3251 per month.
Seattle lieute-
nants at a monthly salary of $3166 are presently
receiving
2.7% less than the
average. The average salary for top step
lieutenants
as of June 1, 1982, for the five comparable
cities
was $3030. Seattle, at $3166, was 4.5%
above the ave-
rage
for the five comparable cities. For
Seattle to maintain
the
same percentage above the average as of January 1, 1983,
for
the five comparables, the lieutenants would have to re-
ceive a base monthly salary of $3397, which would
amount to
a
7.3% increase over the present salary of $3166.
A chart showing the increases provided top step
lieutenants
between 1982 and 1983 in the five comparable
cities
is set forth below:
__________
MONTHLY SALARY TOP STEP
LIEUTENANT
Percent
City 6/1/82 1/1/83 Increase
Long Beach 3188 3496 9.7
Seattle 3166 3397* 7.3*
San Jose 3045 3325 9.2
Oakland 3004 3199 6.5
San Francisco 2995 3176 6.0
Portland 2917 3061 5.0
Average 3030 3251 7.3
_____
*Based on an average of five
comparables.
__________
As one can see from examining the chart a raise of
7.3% would place Seattle
lieutenants in approximately the
same
position they were at the conclusion of the expired
collective
bargaining agreement. Seattle would
maintain its
second
place position among the five comparables, although
it
would no longer be the close second it was previously.
Thus, a review of the
comparables would indicate that a
raise
would be appropriate. In this regard, I
note that no
evidence
was presented indicating that bargaining unit mem-
bers were less productive during the period of
the contract
year
in question here than they were during the prior year.
There are, however, other factors to be considered,
as
both the Employer and Union recognize.
In this regard, I note that RCW 41.56.460(d) directs
the
panel to consider:
The average consumer prices
for goods and
services
commonly known as the cost of living.
The appropriate period to consider would be the period
July 1981 through July 1982 as
that is the last year immedi-
ately preceding the contract in question here for
which there
are
consumer price index figures available for the Seattle
area. Additionally, this is the period used by the
Employer
in
computing raises for other city employees.
The cost of
living,
as reflected by the Consumer Price Index for Urban
Wage Earners and Clerical
Workers Revised (CPI-W) for
Seattle,
increased by 5.4%.
The question then becomes what weight to give the
CPI vis-a-vis
the comparables in assessing the appropriate
wage
rate. Here, where the wages of the
bargaining unit
members
compare favorably with those in the
comparable
cities,
it would seem appropriate to give the consumer price
index
significant weight. Therefore, I have
determined to
set
the appropriate salary figure based on a percent increase
which
is approximately equal distance between the 5.4% CPI-W
and
the 7.3% necessary to maintain the Seattle bargaining
unit
in the same position it was under the prior agreement
vis-a-vis the west coast comparable cities. That figure is
6.5%. While 6.5% is below the average increase
given by the
five
comparables, it represents the mean increase.
That is,
the
third highest increase among the five cities was that
provided
by the City of Oakland and it was 6.5%.
I have carefully considered the other factors cited
by
the parties and do not find that they require a contrary
result. I note that while the Employer raised concerns
about
the
various competing demands upon the City, it did not con-
tend
that a raise of 6.5% was beyond its ability to pay.
The Employer also points to the fact that its police
officers
received only a 5.6% increase, and police sergeants
received
only a 5.7% increase between September 1, 1981, and
March 1, 1983. As I understand it, the Police Guild nego-
tiated these increases without going to interest
arbitration.
The firefighters were then
granted a similar wage increase
to
that of the police officers by Arbitrator Kienast. The
question
of parity between firefighters and police officers
has
long been a matter of contention between the two bargain-
ing units and an award providing one with the
same wages as
the
other appears appropriate. Here, I am dealing
with quite
a
different unit, one made up of middle to upper middle
management
employees. Furthermore, the fact that
the Seattle
Police Guild negotiated the
wage package it did may well re-
flect the comparables regarding police
officers. Finally, a
wage
increase of 6.5% is less than 1% more than the 5.6% or
5.7% received by the
police. Such a difference is not so
significant
as to require a change in what appears appropriate
based
upon the two factors specifically set forth in the
statute,
namely the comparables and the CPI.
I also recognize that other represented workers
received a
4.3% increase due to the fact that their collec-
tive bargaining agreements provided for such an
increase in
the
second year of a three year agreement.
The City also
gave
its nonrepresented employees a 4.3% increase. It is
true,
as the Employer points out, that the statute does direct
the
Arbitration Panel to consider other factors which are
normally
and traditionally taken into account in the deter-
mination of wages, hours and conditions of
employment. What
an
employer pays to other employees not subject to the stat-
utory criteria may be considered such a
factor. As to wage
comparisons
with non-uniformed employees, it must be remem-
bered that the statute does not provide a special
procedure for
determining
the wages of these employees. The
legislative
purpose
set forth in RCW 41.56.430 refers to promoting the
"dedicated
and uninterrupted public service" of the class of
employees
involved here, calling these services "vital to the
welfare
and public safety of the state of Washington .
The
4.3% increase provided
employees by the City of Seattle is
less
than the 5% provided by Portland, the comparable city
with
the lowest percentage increase given to police manage-
ment employees.
I note that the Union stresses the importance of
providing a
sufficient salary differential between lieute-
nants and the pay grade directly below them in
the police
department,
that of sergeants. It is difficult to
compare a
sergeant's pay
with a lieutenant’s pay since some sergeants
receive
premium pay for performing special assignments.
Addi-
tionally, sergeants are able to earn overtime and
standby pay
and
also receive longevity pay. However, I
calculate the
differential
at approximately 16.8% on August 31, 1982.
On
that
date the sergeant top step received $2576.
According
to
Exhibit No. 21, the average sergeant received a 6% longe-
vity premium.
The premium was based on the top step of a
police
officer who on August 31, 1982, earned $2240.
Six
percent
of $2240 is $134. When $134 is added to
the $2576
received
by a top step sergeant, the total is $2710.
A top
step
lieutenant receiving $3166, therefore, received 16.8%
more
in base salary than did the average top step sergeant.
The 6.5% raise, amounting to $3372 for a lieutenant,
would
provide that lieutenant with a similar differential of
17.7%. This calculation is made by taking the
present top
step
rate for police seargent which is $2722, adding the
6%
differential
of $142, which gives a total of $2864.
When
this
figure is compared to $3372, the amount I shall award a
lieutenant
top step, the differential of 17.7% is pretty
close
to the prior year's differential, being less than 1%
more
than the prior year's 16.8% differential.
In view of all of the foregoing, I find that a 6.5%
raise
for the top step lieutenant is appropriate.
I have carefully examined the comparables regarding
the
Union's proposals for a one step salary schedule and for
longevity
premium. The evidence simply does not
support
instituting
either of these proposals.
A review of the salary chart contained in the prior
collective
bargaining agreement indicates that there is an
approximate
4% differential between pay steps.
Therefore,
I shall reduce the top step by
4% to calculate the second
step,
and then reduce the second step by 4% in order to reach
the
appropriate figure for the first step.
Arbitrator Award
Appendix A - Salaries shall read as follows:
Section
1. The
classifications and correspond-
ing rates of pay covered by this Agreement are
as
follows. Said rates of pay are effective
September 1, 1952, through
August 31, 1983.
Police Lieutenant $3108 $3237 $3372
Police Captain $3574 $3723 $3878
Police Major $4282 $4460
SHIFT DIFFERENTIAL
The Proposals
The Union seeks a 3% shift differential for employees
assigned
to perform work after 5:00 p.m. or before 8:00 a.m.
The Employer would continue
the present system of not pro-
viding
any shift differential.
Arbitrator Discussion and
Award
A careful review of the available evidence does not
support
the institution of a shift differential.
OUT OF CLASS PAY
The Proposals
The Union proposes that the two consecutive work
week
requirement before an employee receives out of class
pay
should be reduced to four consecutive days.
The Employer
proposes
no change from the expired agreement.
Arbitration Discussion and
Award
A review of the available evidence does not establish
that
any change in this provision is appropriate.
CLOTHING ALLOWANCE
The Proposals
The Union proposes to raise the clothing allowance
from
$250 to $400. The Employer would raise
it by $25, to
$275.
Arbitrator Discussion
Exhibit No. 115 indicates that three of the five
comparables
do not provide any clothing allowance, but, in-
stead, provide
and maintain the uniforms for the bargaining
unit
members. The two cities among the five
comparables that
do
give a clothing allowance are Oakland and San Jose, which
provide
$450 and $400, respectively. Furthermore, Lt.
Germann
testified, without contradiction, that $400 was rea-
sonably necessary to maintain the uniform. However, a raise
from
$250 to $400 would be a raise of 60%.
Such a raise,
even
though warranted by the evidence, is an extremely large
raise
to be awarded all in one year. Therefore,
I shall
award a
raise of $75, or one-half the amount sought, so that
the
clothing allowance shall be $325.
Arbitrator Award
The second sentence of Section 12 of Article III of
the
expired collective bargaining agreement shall be changed
to
read as follows:
Effective September 1, 1982,
each employee
shall
be paid $325.00 annually to cover the
cost
of replacement of said items.
HOLIDAY PREMIUM PAY
The Proposals
The Union proposes to increase the number of holidays
worked
for which a premium is paid from six to ten.
The
Employer would not, in the
context of a one year agreement,
provide
premium pay for any additional holiday worked.
Arbitrator’s Discussion and
Award
The evidence indicates that a majority of the com-
parables
do not provide premium pay for work on a holiday.
Therefore, your Arbitrator
does not believe that the award of
premium
pay for any additional holidays worked is appropriate
at
this time.
MEDICAL AND DENTAL INSURANCE
The Proposals
This topic includes three issues which are set forth
below:
1. Medical Insurance
2. Medical for Retirees
3. Dental Benefits
The Employer has proposed to continue to pay 100% of
the
monthly premium for the medical care and dental care pro-
grams. The Employer has conditioned doing this on
not pro-
viding
any additional medical or dental benefit.
The Union
also
proposes that the Employer continue to pay 100% of the
medical
and dental programs, but wants certain additional
benefits
provided.
The Union wants dependents of retirees to be per-
mitted continued participation in the City's
medical program
upon
the retirement of the employee upon whom they depend.
The Union points to the fact
that non-uniformed employees are
provided
with a plan where upon retirement a medical plan is
made
available to the retiree and his or her dependents. The
Employer opposes any extension
of benefits to dependents of
retirees.
The Union also proposes to change the present ortho-
dontic coverage so that it would also provide
coverage to
employees,
rather than just to dependents under the age of
nineteen
as it does presently. Additionally, the
Union seeks
to
increase the maximum benefit from 50% of the usual, custo-
mary and reasonable charges up to a maximum of
$1,000, to 70%
of
those charges up to a maximum of $1,500.
Finally, in
connection
with the dental benefits issue, the Union seeks a
contractual
provision allowing retired bargaining unit
employees
and their dependents the right to retain dental
coverage. Such coverage would be provided by the City
paid
dental insurance
program, with the premium to be paid in
full
by the retiree but paid at the city-paid group rate.
Arbitrator Discussion
A review of the medical insurance benefits provided
by
the comparable cities clearly indicates that Seattle com-
pares
quite favorably with those cities.
Therefore, I have
determined
that no additional medical or dental insurance
benefits
are appropriate. I also note, with
respect to the
Union proposal regarding
medical insurance for retiree depen-
dents,
that due to increased costs the City is presently en-
gaged in a process which may well lead to a major
change in
the
manner in which its group retiree medical plan is funded.
Thus, I agree with the City
that to add an additional group
to
this plan at this time would not be appropriate. This is
particularly
true in the instant case since we are dealing
with
an expired collective bargaining agreement.
Finally, with respect to the Union's proposal that
retired
employees and their dependents participate in the
City-paid dental insurance
program, I note that the Employer
presently
does not have a dental program covering any of its
retired
employees.
Arbitrator Award
The Employer shall continue to provide 100% of the
monthly
premium for the medical and dental care programs
presently
in effect for bargaining unit members.
GRIEVANCE PROCEDURE AND
RETENTION OF BENEFITS
The Proposals
The parties are in agreement that a grievance and
arbitration
procedure should be included in the Agreement.
They have informed the
Chairman that they have agreed upon
the
language of such procedure. However, the
Employer has
conditioned
its consent to put the agreed upon grievance and
arbitration
procedure in the agreement on the Union dropping
its
demand for a retention of benefits clause.
The Union
sees
these two issues as being separate, but does, in fact,
seek
both a grievance and arbitration clause as well as a
retention
of benefits clause.
Arbitrator Discussion
I agree with the Employer that a retention of bene-
fits
clause in a management bargaining unit is inappropriate.
It must be remembered that
here we are dealing with middle
and
upper middle management employees who, to a great extent,
are
able to implement practices or procedures or otherwise
substantially
effect their own working conditions.
There-
fore,
many practices, privileges or benefits may accrue to
the
bargaining unit members here as a result of their own
initiative
without any intent to institute or otherwise af-
fect such benefits, practices or privileges by
the City.
In such a situation, the
Employer may often be unaware of
some
benefit or privilege which may be found by an arbitrator
to
be, in the words of the Union proposal, "generally pre-
vailing".
The City should be able to direct the work force
except
as limited by the Agreement. The
grievance procedure
will
provide a means for resolving disputes regarding provi-
sions of the agreement.
A review of the evidence regarding comparable cities
supports
the Employer's position that a retention of benefits
clause
is inappropriate.
Arbitrator Award
The agreed upon grievance and arbitration procedure
shall
be included in the collective bargaining agreement.
OVERTIME COMPENSATION AND
STANDBY COMPENSATION
The Proposals
The Union has proposed detailed overtime compensation
and standby
compensation provisions. Basically, the
Union
proposes
that all employees be compensated at time and one-
half
for hours worked in excess of eight hours per day. The
Union also proposes a standby
compensation provision which
contains
language indicating an intent by the parties to
minimize
standby assignments and provides compensation on the
basis
of fifty percent of the straight time rate of pay as
compensation
while on standby.
The Employer made two alternative proposals regarding
overtime
compensation. The first would change the
overtime
compensation
language in the expired collective bargaining
agreement
so as to provide what the Employer contends would
be a
more liberal standard for the payment of overtime to
lieutenants. The Employer's alternative proposal would
pro-
vide
lieutenants with time and one-half for work in excess of
eighty-four
hours in a biweekly pay period because of an
emergency. The Employer alternatives would not provide
any
standby
compensation for lieutenants.
With respect to captains and majors, the Employer
would
compensate them for overtime and standby by providing
them
with three days of executive leave upon completion of
104 or more hours of overtime
and standby in the preceding
calendar
year. Hours which
exceeded eighty hours in a pay
period
would count toward the 104 hour threshold.
However
standby
hours would only count 10% toward the threshold.
Thus, as I understand it, an
employee would have to work ten
hours
of standby before being credited with one hour toward
the
104 hour threshold.
Arbitrator Discussion
As I listened to the various Union witnesses who
testified
in support of the Union's proposals regarding
standby
and overtime, it became clear that the bargaining
unit
members sincerely believe that they were working rela-
tively large amounts of overtime and standby, and
in the case
of
the homicide and robbery lieutenants, extremely large
amounts
of standby.
The Employer witnesses on the other hand, took the
position
that bargaining unit members were not asked to per-
form
an unusually high amount of overtime or standby. Fur-
thermore, it was the view of those witnesses that
many of the
hours
the employees considered as overtime could be said not
to
be overtime due to the flexibility these mid-management
level
employees had to work long hours one day to perform
their
work and then take time off the next to compensate for
the
long day. Additionally, the Employer
pointed to the
practice
of "circling" furlough days, a practice whereby an
employee
who works on a scheduled day off is then able to
take
another day off.
With respect to standby, the Employer disagrees that
the
homicide or any other lieutenant had excessive standby
assignments
as lieutenants were not required under threat of
discipline
to respond to a call while off duty.
It is true, as the Employer points out, that well
paid
management employees performing police work can reason-
ably
expect that, at times, their job may well require work-
ing more than eight hours a day or more than
eighty hours in
a
pay period. This is particularly true in
the case of high
level
management employees such as captains and majors, who
will
be earning annually more than $46,500 and $53,500,
respectively,
under the pay scale I have awarded here.
On
the
other hand, there is justice to the employees
contention
that,
at some point, the amount of assigned overtime and
standby
may be so large as to make it no longer reasonable to
expect
employees to work such overtime without additional
compensation
either in money or in time off.
At a meeting on September 8 attended by
Messrs.
Campbell, Vande
Putte and Webster, your Chairman had a wide-
ranging
discussion involving the various matters briefly dis-
cussed
above. The parties reached an agreement
with respect
to
standby regarding lieutenants. The
parties agreed that
lieutenants
would not be required to standby.
Additionally,
the
parties also clarified that standby did not refer to
situations
in which employees wore beepers, but, rather,
only
applied to a situation where an employee is required to
remain
ready to respond. Therefore, I shall
award a standby
provision
regarding lieutenants in line with these agreements.
With respect to standby for captains and majors, the
parties
did agree as to what was currently required.
Fur-
ther, I was informed by Mr. Campbell that the
Employer pre-
sently did not intend to change those
requirements. Your
Chairman believes these
requirements are not unreasonable in
view
of the overall salary received by captains and majors.
Thus, I have drafted a standby
provision regarding captains
and
majors which does encompass the present standby require-
ment without providing any additional standby
compensation.
However, in the absence of the
City's counsel being able to
state
that the City would not increase the present standby
requirement,
I have determined to provide for some compensa-
tion for standby worked by captains and majors
above the
present
level being worked.
With respect to overtime, I have determined not to
try
to mix standby and overtime, but to treat overtime sepa-
rately, particularly since it does appear that the
standby
requirements
for three classes of employees basically is set,
while
the overtime requirement may vary substantially.
In view of all of the foregoing, it does appear that
some
type of overtime compensation which, on the one hand,
does
not treat these management employees as clock watchers,
but
which, on the other, does not require them to put in
excessive
overtime without compensation, is appropriate.
Further, it does appear that
lieutenants, in view of their
lesser
salary and responsibility, should not be treated the
same
as captains and majors with respect to overtime compen-
sation. The
provision I have drafted will reflect this
difference.
The final question that must be determined is the
question
of retroactivity. We are dealing here
with an
agreement
whose term has been stipulated to by the parties,
which
term has now expired. The Union would
have the
standby
and overtime provisions take effect retroactively,
while
the Employer argues that they should take effect on
the
last day of the Agreement, namely, August 31, 1983.
After carefully reviewing the arguments of the
parties,
I have determined that retroactivity is not appro-
priate. The
parties have agreed that there shall be a provi-
sion in the agreement prohibiting standby for
lieutenants.
On the other hand, the Union
seeks some compensation for the
standby
time that it believes its members have worked during
the
contract year. Since there is no provision
in the prior
agreement
regarding payment for standby duty, I would have to
set a
rate in order to provide such compensation.
However,
to
set a rate for past standby and yet put a provision in the
agreement
which prohibits standby is, to say the least, incon-
sistent.
It is true, as the Union points out, that it did
place
the Employer on notice that its proposals did include
a
standby and overtime compensation provision
and that de-
spite
this standby and overtime was assigned.
However, as
the
Employer points out, any standby or overtime that was
assigned
was assigned at a time when the Employer was not
obligated
to provide standby compensation and its overtime
compensation
obligation was limited.
The restrictions on standby which I will place in the
agreement
are really new benefits; that is, they are not
merely
an increase in benefits previously in the agreement,
such
as an increased clothing allowance or increased salary.
Thus, with respect to these
new benefits, no system was in
place
for keeping track of standby or overtime.
In fact, as
already
discussed, the parties were in substantial disagree-
ment regarding the amount of standby assigned
the homicide
and
robbery lieutenants.
As I balance the equities here, I believe that the
imposition of
the standby and overtime benefits I have set
forth
in the agreement are warranted. These
benefits will
provide
the employees in the future with fair treatment re-
garding standby and overtime. However, to attempt to go back
and
set a standby rate for compensating employees or to re-
quire
the payment of overtime for work assigned at a time a
rate
was not in place would put an unfair burden on the
Employer.
I have based the compensation provisions on a bi-
weekly
basis since this is the basis on which employees are
paid
and it is the basis generally used in the comparable
cities.
Arbitrator Award
There shall be a new provision on standby which is
set
forth below:
STANDBY
Section
1.
(a.) Lieutenants shall not be assigned off
duty
standby time. Captains and majors
may
be assigned off duty standby time.
Such assignment shall not be
in excess
of
one week out of fourteen for captains
nor
one weekend out of ten for majors,
unless
compensation is paid in the man-
ner set forth in subsection(b.) below.
(b.) Twenty-five percent of straight time
pay.
Section
2.
Standby time shall be defined
as that
period
of time during which an employee
is
required to remain in a state of
readiness
to respond to a summons to
duty
and for which discipline may at-
tach for failure to respond. However,
the
issuance of a bell boy communicator
to
an employee does not constitute
placing
the employee on standby, and no
employee
shall be restricted in his or
her
movement or activities by the
issuance
of the communicator.
Section
3.
The effective date of this
Standby
provision
shall be August 31, 1983.
Article III, Section 4 shall be eliminated. There
shall
be a new provision on overtime which is set forth
below.
OVERTIME
Section 1.
Lieutenants, at the Employer's option, shall
either be (a) compensated at the
rate of time
and one-half (1½) or (b)
provided with one
hour off, for each hour worked
in excess of
eighty (80) hours in a biweekly
pay period
when ordered by the Employer to
work such
hours. Periods of work beyond eight hours
work per day which are either of
less than
one (1) hour duration or which
are performed
to complete or fulfill the
employee's regu-
lar
duties may not be accumulated for compen-
sation
as overtime work or for time off as
overtime work under this
Section.
Section 2.
Captains and Majors, at the Employer's option,
shall either be (a) compensated
at the rate of
time and one-half (1½) or (b)
provided with one
hour off, for each hour worked
in excess of
eighty-five (85) hours in a
biweekly pay period
when ordered by the Employer to
work such hours.
Periods of work beyond eight hours work per day
which are of less than one (1)
hour duration or
which are performed to complete
or fulfill the
employee's regular duties may
not be accumulated
for compensation as overtime
work or for time off
as overtime work under this
section.
Section 3.
The daily work hours of an employee may, upon
direction from or with the
concurrence of the
Employer, be adjusted to accommodate the varying
time demands of the activities
for which the
employee is responsible. For example, upon
direction from or with the
concurrence of the
Employer, an employee may work ten (10) hours
one day and six (6) hours the
next day or six
(6) days one week and four (4)
days the follow-
ing
week or any other variation specifically ap-
proved by the Employer on a case
by case basis.
Section 4.
The effective date of this Overtime provision
shall be
RETROACTIVITY
The Proposals
The question of retroactivity has been discussed pre-
viously in this Opinion. In addition to retroactivity, the
ing unit members.
Arbitrator Discussion and
Award
As previously indicated, the parties stipulated to
the
duration of the Agreement, that being
through
Agreement are retroactive,
except those in which the Arbi-
trator has specifically set forth an effective
date other
than
In addition to overtime and standby, the grievance
and
arbitration procedure is a new benefit, and, thus, pur-
suant to the rationale previously discussed,
should not be
effective
retroactively. It shall take effect on
August 31,
1983.
Interest is generally not awarded in these proceed-
ings, and it has not been established that
interest is
appropriate
in this case.
Seattle, Washington
Dated: September 11, 1983 S/ MICHAEL H. BECK
Michael
H. Beck, Arbitrator