And
City
of
Interest
Arbitration
Arbitrator: Alan R. Krebs
Date
Issued:
Arbitrator:
Krebs; Alan R.
Case #: 08062-I-89-00182
Employer:
City of
Date Issued:
IN THE MATTER OF
CITY OF
AND
PERC No.: 08062-1-89-00182
Date Issued:
INTEREST ARBITRATION OPINION
AND AWARD
OF
ALAN R. KREBS
ARBITRATION PANEL
NEUTRAL CHAIRMAN: ALAN R. KREBS
CITY APPOINTED MEMBER: GARY
CRUTCHFIELD
Appearances:
CITY OF
TABLE OF CONTENTS
I. PROCEDURAL
MATTERS 1
II. APPLICABLE STATUTORY PROVISIONS
2
III. ISSUES 4
IV. COMPARABLE
JURISDICTIONS 5
V. COST
OF LIVING 12
VI. OTHER
CONSIDERATIONS 14
A .Ability to Pay 14
B. Settlements With Other City Bargaining
Units 16
C
. Turnover 17
D
. Work Load 18
VII. HOURS 18
VIII. OVERTIME
21
A
. Threshold 21
B
. Call Back 23
C
. Standby Pay 25
D
. Travel Time 27
IX. VACATION CREDIT 29
X. SICK
LEAVE 32
A. Sick Leave Accrual, Cap, and Cash Out 32
B
. Light Duty 34
C
. Paternity 36
D. Sick Leave Procedures 37
E
. Famly
Illness 38
XI. SENIORITY 38
X II. ZIPPER
CLAUSE 39
XIII. MANAGEMENT
RIGHTS 40
A. Time Off to Save Money 40
B
. Subcontracting 41
C. Preemployment
Contracts 42
D
. Long Form Clause 43
XIV. CREATION
OF NEW CLASSIFICATION 44
XV. BILL
OF RIGHTS 45
XVI. GRIEVANCE
- DISCIPLINE PROCEDURE 46
XVI
XVIII. CAREER
DEVELOPMENT PLAN 49
A. Education/Longevity 49
B. Bilingual Incentive 54
XIX. MEDICAL
INSURANCE 57
XX. WAGE
INCREASE 64
IN THE MATTER OF
CITY OF
AND
OPINION OF THE NEUTRAL CHAIRMAN
I. PROCEDURAL
MATTERS
In
accordance with RCW 41.56.450, an interest arbitration
hearing involving certain uniformed
personnel of the city of
persons.
City of
designee on the Panel.
Cliff Nelson as its designee on the
Panel. Arbitrator Alan R.
Krebs was selected as the Neutral Chairman
of the Panel. The
hearing was held in
1989.
The City was represented by Greg Rubstello,
Attorney.
The Association was represented by John Hoag of the
law firm Aitchison,
Snyder & Hoag.
At
the hearing, the testimony of witnesses was taken under
oath and the parties presented documentary
evidence. No court
reporter was present, and, therefore, the
Neutral Chairman
tape recorded the proceedings for the sole
purpose of
supplementing his personal notes.
In
view of the lengthy record, the parties agreed to waive
the statutory requirement that the interest
arbitration award
be issued within 30 days following the
conclusion of the
hearing.
The parties also agreed that the Neutral Chairman
alone would issue the resulting Decision,
after accepting
input from the City-appointed arbitrator and
the
Union-appointed arbitrator.
The
parties agreed upon the submission of post-hearing
briefs.
The briefs of the parties were received by the
Neutral Chairman on
II. APPLICABLE
STATUTORY PROVISIONS
Where
certain public employers and their uniformed
personnel are unable to reach agreement on
new contract terms
by means of negotiations and mediation, RCW
41.56.450 calls
for interest arbitration to resolve their
disputes. In
interest arbitration, an arbitrator or
arbitration panel
adjudicates a resolution to contract issues
regarding terms
and conditions of employment, which are at
impasse following
collective bargaining negotiations. The parties agree that
RCW 41.56.450 is applicable to the
bargaining unit of police
officers involved here.
RCW
41.56.460 sets forth certain criteria which must be
considered by an arbitrator in deciding the
controversy:
41.56.460
Uniform Personnel--Interest
Arbitration
Panel--Basis For Determina-
tion. 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
it
in reaching a decision, it shall take
into
consideration the following factors:
(a) The constitutional and statutory
authority
of the employer;
(b) Stipulations of the parties;
(c) (i) For
[police department]
employees
. . . comparison of the wages,
hours
and conditions of employment of
personnel
involved in the proceedings with
the
wages, hours, and conditions of
employment
of like personnel of like
employers
of similar size on the west coast
of
the
(ii) For [fire department] employees
.
. . comparison of the wages, hours, and
conditions of employment of personnel
involved in the proceedings with the wages,
hours, and conditions of employment of like
personnel of public fire departments of
similar size on the west coast of the
number of comparable employers exists
within the state of
coast
employers shall not be considered;
(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;
and
(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.
RCW
41.56.430, which is referred to in RCW 41.56.460,
reads as follows:
41.56.430 Uniformed personnel-
Legislative
declaration. The intent and
purpose
of this 1973 amendatory act is to
recognize that there exists a public policy
in the state of
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
and uninterrupted public service there
should exist an effective and adequate
alternative
means of settling disputes.
III. ISSUES
The
Association represents 38 of the uniformed employees
in the City's Police Department, up to and
including the rank
of sergeant.
The Association and the City are parties to a
collective bargaining agreement which
expired on December 31,
1988.
They were unable to reach an agreement on a new
contract despite their efforts in
negotiations and the efforts
of a mediator. In accordance with RCW 41.56.450, the
executive director of the
Commission certified that the parties were
at impasse on a
number of issues. The statutory interest arbitration
procedures were invoked. The unresolved issues are:
1. Hours of Work
2. Call Back
3. On Call
4. Travel Time
5. Vacations
6. Sick Leave
7. Accumulated Sick Leave Cash Out
8. Light Duty
9. Seniority
10. Zipper Clause
11. Management Rights
12. Creation of New Classifications
13. Bill
of Rights
14. Grievance
Procedure
15. Use
of Tobacco
16. Career
Development Plan
17. Bilingual
Incentive
18. Medical
and Dental Insurance
19. Disability
Insurance
20. Wages
IV. COMPARABLE
JURISDICTIONS
One
of the primary standards or guidelines enumerated in
RCW 41.56.460 upon which an arbitrator must
rely in reaching
a decision is a "comparison of the
wages, hours, and
conditions of employment of personnel
involved in the
proceedings with the wages, hours, and
conditions of like
employers of similar size on the west coast
of the United
States." To determine which other employers are alike
and of
similar size, arbitrators frequently compare
population and
assessed valuation. In recognition of this, both sides here
presented such figures to the
Arbitrator. The number of
officers in a department may also be
considered an indication
of the size of an employer and these figures
were also
supplied.1/ Both sides agree that the following
cities,
to
disagree as to other comparable
jurisdictions.
irrelevant, Particularly in view of the
difference between
subsections (c) (i)
and (c) (ii) of RCW 41.56.460. I do not
agree that the reference to "public
fire departments of
similar size" in subsection (c) (ii)
necessarily means that
the size of a police department is
irrelevant under
subsection (c) (i).
______________________
The
Association asserts that in
since they are both adjacent to
market of the Tn-Cities,
of which
contends that
urges that the cities of
as comparable. The City asserts that it has selected as
comparable jurisdictions those which are
generally within a
range of plus or minus one-third of
assessed valuation, and which are at least
fifty miles from a
large urban metropolitan area. The Association asserts that
compared with
As
out-of-state comparable jurisdictions, the Association
proposes Calexico,
Grants Pass, Oregon, because like Pasco,
they all have high
crime rates for their size. The City Opposes the use of
crime statistics to select comparables. It asserts that San
Pablo and
metropolitan areas to be considered as
comparable. In
addition, the City asserts that
acceptable ranges for population and
assessed valuation. The
City proposes as out-of-state comparable
jurisdictions the
California cities of Brawley, Barstow, and
Delano, and the
Oregon cities of Ashland, Klamath Falls, and
Association asserts that the City was not
justified in
rejecting jurisdictions which were within 50
miles of a large
metropolitan area since the statute does not
authorize such a
restriction and because
metropolitan area. The Association also points out that the
jurisdictions suggested by the City are not
comparable to
Pasco
is situated in southeast Washington, in close
proximity to the cities of
the three cities are generally referred to
as the
Tn-Cities. The economy of the area is significantly
affected by the
nuclear and scientific service
industries.
affected by the nuclear industry.
retail commercial center.
on transportation, agriculture, and, to a
lesser degree,
retail trade.
Assessed Number of
Population Valuation Officers
The
figures for the agreed-upon comparable jurisdictions
are:
Assessed Number of
Population Valuation Officers
The
figures for the additional
suggested by the City, and opposed by the
Association, are:
Assessed Number
of
Population Valuation Officers
Pullman 22,270 295,426,001 20
2Dan
Underwood, the City's finance director, testified
that this is the population figure which the
state officially
recognizes for
publication of the state office of Financial
Management dated
August 1989.
The Association asserts that
is 18,520.
The basis for this figure is not apparent from
the record.
The population figures offered by the City for
supported by the evidence, and, therefore,
will be utilized.
3I
have utilized the City's figures since, according
to Mr. Underwood, they are current as of
1989. The figures
for assessed valuation presented by the
Association are
different.
It is not clear that the Association~s figures
are for 1989.
_____________________
The
figures for the
were suggested by either the Association or
the City are
reflected below:
Assessed Number of
Population Valuation
Officers
I
have selected the following as jurisdictions which are
comparable to
Aberdeen,
Walla Walla, and
the parties agreed that they are comparable
to
each significantly larger than
assessed value. Pasco, Richland, and
single metropolitan area with the same labor
market. Their
police forces must compete for the same pool
of employees.
It is understandable that the employees of
each would be
aware of the contractual benefits paid by
their neighboring
cities, and that such awareness would affect
their
expectations. Thus, neighboring jurisdictions are often
given special consideration when determining
comparables. On
the other hand, a disparity in Size may
serve to reduce or
eliminate that special consideration.
the size of its police force. In view of this and
particularly because of the special
consideration which is
warranted by their proximity, I find that
the terms and
conditions of employment of the police
officers in
and
obviously of unlike size. This is not a situation where a
small city is being compared to a large city
or even a medium
Size city.
Pasco, Richland, and
cities.
Their proximity dictates they should be compared if
it can be reasonably argued that they are
alike in size.
Moreover,
the other cities which the parties have
stipulated as being comparable, while closer
in population
and assessed valuation to
communities.
While
other jurisdictions which have been agreed
to by the parties
as comparable or which have been selected by
the Arbitrator,
are not part of a larger metropolitan area
as is Pasco.4
4/One
of the Employer's exhibits indicates that the
population of the metropolitan area of the Tn-Cities is
considerably over 100,000 in population.
______________________
The
other jurisdictions which I have selected represent
all those jurisdictions which one or the
other of the parties
suggested as comparable and therefore
supplied necessary
contract information, and which have a population
and an
assessed value which are plus or minus 30
percent that of
of comparison, six from
and two from
I
have determined not to use crime statistics, as
suggested by the Association, in order to
select appropriate
comparable jurisdictions. Crime statistics are not
referenced in the statute as a basis for
selecting comparable
jurisdictions. I might utilize such statistics in order to
reduce the number of jurisdictions of
"similar size," which
is the criteria set forth in the statute,
down to a more
manageable level. However, that is not necessary here since
the number of similarly sized jurisdictions
which are
available for my consideration are already
at a manageable
and reasonable level.
V. COST
OF LIVING
RCW
41.56.460(d) requires that the arbitrator take into
consideration "[t]he average consumer
prices for goods and
services, commonly known as the cost of
living." The City
asserts that in making his determination on
the appropriate
wage increase for 1989, the Arbitrator
should focus on the
change in the CPI-W, West Coast Cities - C
index at the time
negotiations were just beginning in October
1988, and again
in July 1989. The City asserts that in making his
determination on the appropriate wage
increase for years
subsequent to 1989, the Arbitrator should
focus on the change
in the cost of living for the 12-month
period preceding
October 1989 and October 1990. The consumer price index
referred to by the City is published by the
Department of Labor, Bureau of Labor
Statistics. It measures
the increase in the cost of consumer goods
for urban wage
earners and clerical workers in cities of
50,000 to 330,000
in population on the west coast of the
index represents the smallest class of
cities measured in any
of the published west coast indices. The City uses this
index in bargaining with its other
bargaining units.
The
Association asserts that the
reasonable yardstick to use. In support of this, it points
out that there is no support for the use of
the CPI-W, West
Coast Cities - C index among the comparable
jurisdictions
However, the Association could point to none
of the
comparable jurisdictions which has utilized
the
which it has proposed.5
references all urban consumers. No evidence in this regard
was presented with regard to
Pass.
____________________
I
have determined to utilize the CPI-W, West Coast Cities
C index for the periods suggested by the
City. It appears
that this index would more likely reflect
the cost of living
change in
the national index. The Tn-Cities
metropolitan area has a
population which falls within the parameters
of the index
suggested by the City. The period October 1987-88 shall be
examined since it reflects the period that
the parties would
most likely have used had they resolved
their contract
differences in a timely manner. The July 1988-89 period
shall also be considered, since RCW
41.56.460(e) requires the
consideration of changes which occur during
the pendency of
the proceedings. The applicable index reflects the following
annual change in the cost of living for
small west coast
cities:
Year
Ending CPI-W,
West - C Index
October,
1988 3.7
July,
1989 4.0
With
regard to the cost of living, it is also significant
that the average cost of homes in the Tn-Cities region has
gone down each year since 1981. This is reflected in a
report prepared in March 1989 for the
Energy.
For instance, in 1988, the average price for a house
in
decreasing population and a resulting
increase in housing
vacancy rates. The declining cost of housing in
to bring down the cost of living to a level
which may be less
than the CPI figures reflected above.
VI. OTHER
CONSIDERATIONS
In
addition to the specific criteria set forth in RCW
41.56.060(a) - (e), RCW 41.56.060(f) directs
the Panel to
consider "such other factors . . .
which are normally or
traditionally taken into consideration in
the determination
of wages, hours, and conditions of
employment." Such
factors, which are discussed below, have
been considered, but
with lesser weight than that which is given
to the
specifically enumerated criteria of
comparability and cost of
living.
A. Ability to Pay
A
factor frequently raised in contract negotiations and
also considered by arbitrators is the
ability of the employer
to pay wage and benefit increases.
The
City asserts that it is in a position to grant a
reasonable and fair wage increase. The City does point out
that it has just recently emerged from a
situation in which
its revenue had been declining over the past
four or five
years and that its population and assessed
real estate
valuation is still in decline. The City further points out
that it has exercised its taxing authority
to the maximum
except for a business and occupations
tax. Finance Director
Underwood testified that such a tax is not
politically
feasible anywhere in
general fund employees has decreased each
year since 1984,
while during the same period there has been
an increase in
the number of police employees.
The
Association asserts that the City has the ability to
pay whatever increase the panel orders. It points out that
the City's ending general fund balance has
increased for the
past two years.
According
to figures supplied by the City, its sales and
use tax base has increased at only about a 2
percent annual
rate from 1986 through 1988. At the same time, property
assessments have decreased by more than 3
percent per year,
and its population has declined. The City has had to cut its
work force except for the police
department. Several
thousand jobs in the area were lost as a
result of the
decision of the
project.
The
Underwood expected the local economy to be
even worse than it
is, and therefore the City was able to end
the year with more
funds in its reserve account that it
expected.
The
City admittedly can afford some compensation increase
for its police officers. However, the depressed state of the
local economy must be kept in mind when
determining the
amount of the increase that can be afforded.6
6The
Association attached to its brief a newspaper
article which dealt with the local
economy. It would be
inappropriate to consider that information
since it was not
presented as evidence during the
hearing. The Association
correctly points out that RCW 41.56.460
calls for the
consideration of changes which occur during
the pendency of
the proceedings. Nevertheless, such information must be
presented at hearing. If the new information is sufficiently
significant, then the hearing could have
been reopened.
There has been no request to reopen the
record.
B. Settlements
With Other City Bargaining Units
From
the standpoint of both the City and the Association,
the settlements reached by the City with
other bargaining
units are significant. While those settlements are affected
by the peculiar situation of each individual
bargaining unit,
still there is an understandable desire by
the City to
achieve consistency. From the Association's standpoint, it
wants to do at least as well for its
membership as the other
City unions have already done. At the bargaining table, the
settlements reached by the City with other
unions are likely
to be brought up by one side or the
other. Thus, it is a
factor which should be considered by the
Arbitrator.
The
City's 1989 collective bargaining agreement with the
fire fighters, who also are entitled to
utilize interest
arbitration, calls for a 3 percent wage
increase. The 1989
agreement with the
non-sworn police department employees calls
for a 2.5 percent
wage increase. The agreement covering the public works and
parks department employees provides for a 3
percent wage
increase.
Also receiving a 3 percent wage increase in 1989
were the non-represented employees,
including management.
C. Turnover
Police
Chief Don Francis testified that 25 police
officers have left the department for
various reasons since
1980.
Of these, he was aware of only five who gave as the
reason for leaving that they were going to a
job that would
provide more money or benefits. Association President Gary
Schweighardt
testified that the average length of service
among the police officers is only about four
years. It is
not clear from the record whether the level
of turnover is
higher than in other police departments. The turnover rate
does seem rather high and there does seem to
be some problem
with officers leaving to obtain more
favorable compensation.
There was evidence of one highly recruited
officer candidate
who elected to work in
is higher.
D. Work
Load
The
Association asserts that no one can claim that the
City's police officers do not earn their
wages. The City has
the highest rate of crimes per capita in the
state. If the
number of crimes in the City is divided by
the number of
officers,
Several officers testified that they work
very hard in a
stressful environment.
VII. HOURS
The
first sentence of Article XI - Hours of Work, Section
1, of the expired Agreement reads:
The
City will declare a standard
41.25
hour duty week consisting of five
(5)
days of 8.25 consecutive hours. . .
The
Association has proposed amending this provision to
reflect an 8-hour day and a 40-hour
week. The Association
asserts that there is no justification for
officers working
an extra 15 minutes per day, and that the
vast majority of
comparable cities do not have such a
schedule. The City
asserts that the current language should
remain. It contends
that the extra 15-minute period is necessary
for "lineup,"
that the current language was only recently
negotiated into
the contract, and that the Association is
making a back-door
attempt to increase the possibility of
overtime.
The
parties' 1984-86 agreement required that officers
appear for "lineup time" which
would be a 15-minute period
prior to the regular 8-hour day. Under that agreement, the
officers were not entitled to extra
compensation for working
that 15-minute period. Chief Francis testified that line up
time, also referred to as roll call time or
briefing time, is
traditionally used by police departments to
convey
information to the officers who are coming
on duty. Such
information may relate to serious crimes
that have occurred
since they were last on duty, things to
watch out for during
their patrol hours, and administrative
information. It can
also be used to critique serious incidents
and for
mini-training sessions. Another reason for line up time,
according to Chief Francis, is to make sure
that there is
coverage on the street during the time when
officers are
coming in at the end of their shifts and
other officers are
first coming on duty.
In
1986, as a result of a court decision, the City was
compelled to compensate officers for the
time spent in line
ups.
The City and the Association reached an agreement that
permitted the continuation of the extra
15-minute line up
period, but required compensation for it at
straight time.
Frequently,
line up time has not been used for briefing,
but rather for other routine duties. Detective James
Hathaway was a patrol officer until his
promotion in June
1989.
Detective Hathaway testified that during the last
three years that he was assigned to patrol,
he did not attend
more than 12 to 15 briefings. Some shift commanders did not
utilize the line up time for briefings. Detective Hathaway
testified that when line up time was
utilized by the shift
commander, it was often used just to read
aloud bulletins
that had already been passed around to the
patrolmen.
Sergeant Charles Chambers testified that as
shift commander,
he was expected to conduct a 15-minute
briefing to the
incoming officers. However, according to Sergeant Chambers,
more often than not, his officers would be
going on calls
before a briefing was done. Chief Francis confirmed that
officers are often dispatched during the
briefing period, so
as to avoid having to pay overtime to
officers who are about
to go off duty.
None
of the jurisdictions which have been selected as
comparable, provide for an 8.25-hour day or
41.25-hour week.
None provide for a standard workweek which
is longer than 40
hours.7
7The
city of
period of 80 hours in a 14-day work period.
_____________________
I
conclude that the disputed language shall be changed to
read as follows:
The
City shall declare a standard 40
hour
duty week consisting of five (5) days
of
8 consecutive hours. . .
The
amended language reflects the standard which is
generally contained in the contracts of the
comparable
cities.
If line up time is traditional, then apparently it
is being scheduled within the 8-hour day in
all the
comparable cities. Here, there is not a firm tradition of
utilizing the lineup time as a briefing
period. To a
significant extent, the extra 15 minutes has
been utilized to
extend the patrol hours of the
officers. There is
insufficient basis for the officers here to
be treated
differently from officers in the comparable
jurisdictions.
VIII. OVERTIME
A. Threshold
The
expired Agreement provides:
ARTICLE
VIII - OVERTIME
Section
1. Except as otherwise
provided herein, overtime work shall
include only that work performed by
employees at the discretion of the Chief
of Police or his designee, which exceeds
the standard 8.25 hour work day or 41.25
hours of work in a seven day work period.
Except as otherwise provided herein,
overtime work shall be paid at the rate of
one and one-half (1-1/2) times the
employee's "regular rate of pay"
as that
term is defined in the FLSA.
*
* *
The
City proposes that the overtime threshold be expanded
to that permitted by federal law, which is
165 hours within a
28-day work period. The City argues that this is necessary
to reduced overtime costs which were
increased as a result of
federal law.
The City asserts that comparable cities are
beginning to use overtime thresholds other
than the 8-hour
day/40-hour week. The Association asserts that the City has
not provided any evidence which would
justify its 28-day plan
and that none of the comparable cities have
such a system.
Chief
Francis testified that the overtime budget has been
"going out of sight each year . . .
" and has been "getting
more and more all the time." In fact, according to
statistics provided by the City, overtime
has generally
decreased over the years. The amount of dollars spent on
overtime during each of the past three years
has been less
than the amount spent in any of the
preceding five years.
Information on overtime thresholds was
provided for seven of
the selected comparable cities.8 Five9 of the seven
provide for overtime after working 8 hours
in a day or 40 in
a week.10 In one other,11 overtime is
defined as hours
actually worked over 80 hours in a 14-day
period. In another
comparable city,12 overtime is
not defined in the contract.
8Information
was not provided for Richland,
9Aberdeen,
and Klamath Falls.
10Pullman
not only has an 8/40 threshold,
but also a threshold of over 171 hours in a
28-day
work period.
for less than 30 minutes worked, but pays a
full
hour of overtime after the extra 30 minutes
is
worked.
11Barstow.
12Delano.
_________________
Neither
a comparison with the comparable cities, nor other
sufficient reasons, supports the City's
contention that the
overtime threshold should be changed to 165
hours within a
28-day work period. In view of the change which has been
ordered with regard to the hours section of
the Agreement, the
first sentence of Article VIII, Section 1 shall
be modified to
read as follows:
ARTICLE
VIII - OVERTIME
Section
1. Except as otherwise
provided herein, overtime work shall
include only that work performed by
employees at the discretion of the Chief
of Police or his designee, which exceeds
the standard 8 hour work day or 40 hours
of work in a seven day work period. . .
B. Call Back
Article
VIII, Section 2 of the expired contract provides:
Section
2. Call-Back/Court-
/Training. Overtime worked due to
call-back but which is not an extension at
the beginning or end of a normal shift
shall be paid a minimum of three (3) hours
at the overtime rate. Overtime due to
court appearances requiring less than one
(1) hour of the employee's time shall be
paid two (2) hours at the employee's
overtime rate. Otherwise overtime due to
time in court shall be paid a minimum of
three (3) hours at the overtime rate per
twenty-four (24) hour day with additional
hours worked paid on an hour for hour
basis as required when an employee is
actually in the courtroom or required to
be in the
the giving of testimony; Provided,
however, such minimums are paid only when
call-back for court time is not an
extension of the shift, either at the
beginning or the end it shall be at the
overtime rate only for the actual time
spent in court. In Service Training time
(outside of a scheduled shift) shall be
paid at employee's straight time rate with
a minimum of two (2) hours.
The
Association proposes that there should be a flat four
hours for call back. The Association argues that its
proposal will help compensate the officers
for the disruption
of their daily lives. Officer Gary Schweighardt
testified
that if a subpoena for him to appear in
court is cancelled
and he is notified at home, just as he was
leaving for court,
he receives no compensation, despite the
obvious
inconvenience involved.
The
City argues that the current contract language
regarding call-back time is consistent with
that of the
comparable cities.
The
language of the expired Agreement calls for a minimum
of two to three hours of call-back pay at
the overtime rate.
This serves to provide compensation for the
inconvenience
involved in being called back to work during
off-duty time.
The question here is whether the call-back
provision which
has been previously negotiated by the
parties is unfair.
There is nothing inherently unfair about the
two and three
hour minimums which are contained in the
expired contract.
Moreover, these levels are generally not
inconsistent with
the contract provisions applicable to the
comparable cities:
Call-back
Minimum Hours
Pullman 2
Richiand 4
Wenatchee 2
on duty days for the officer,
4
on off-duty days
Brawley 4
Grants Pass 2
Klamath Falls 3 on-duty days, 4 on off-duty days.
Therefore,
no change in the existing language for call-back
pay shall be ordered.
C. Standby Pay
The
Association has proposed a new section which would
provide for compensation at 25 percent of
the employee's
normal hourly pay when that employee is
on-call. The
Association asserts that certain employees
are required to
wear a pager so as to be available for
immediate call back.
The Association contends that this limits
the employee's
ability to go where he wishes on his own
time, and therefore
is deserving of additional
compensation. The City contends
that the Association's proposed standby pay
provision is not
common among the comparable cities. It further asserts that
testimony at the hearing showed that
employees who did carry
a pager on weekends were essentially
unrestricted in their
travel and activities, except to respond to
the pager when
called.
The
standby pay issue relates to a practice by the
Department of having detectives, on a
rotating basis, carry a
pager over the weekend. In the event of a major crime, the
detective with the pager is called in to
work. Detectives
normally do not work on weekends. Gary Schweighardt
presented the only testimony in this
regard. Officer
Schweighardt
is not a detective. Officer Schweighardt
testified that he did not know of any
restrictions upon the
freedom of the on-call detective to travel
over the weekend.
He testified that they were told that
on-call detectives
could go fishing. Officer Schweighardt
does not know if
there are any restrictions on the on-call
detective regarding
response time or how far that detective
could travel.
It
is not clear from the record whether any of the
comparable jurisdictions require detectives
to carry a pager
while off-duty.
Although
detectives may be asked to carry a pager, there
is no evidence that their actions or travel
are restricted,
or that the on-call detective may be
penalized in some manner
for failing to report. There is insufficient evidence to
establish that the situation for the
off-duty detectives is
significantly different from other officers
who may be called
in to work in an emergency. The pager may help the City to
contact a detective. However, its use does not, in itself,
place a special burden on the detective so
as to restrict
travel or activities. If something more, in fact, is
required of the detective with the pager,
such as a
requirement that he or she report to work
within an hour of
being paged, or that he or she not travel
far from the City,
then the Association may have had a stronger
argument.
As
the term suggests, standby pay refers to a situation
where employees are paid to standby to
report to duty. No
standby pay shall be ordered here, since it
has not been
shown that employees are required to standby
in a manner
which materially interferes with their
off-duty time.
D. Travel Time
The
Association has proposed amending the overtime
article to reflect that travel time to and
from in-service
training shall be considered time worked. Article VIII,
Section 3 of the expired Agreement reads:
Section
3. Other Rules. The
following
additional rules for overtime
shall
be followed:
a. In Service Training. Travel time
to
and from classes shall not be claimed
as
overtime.
* * *
The Association asserts that it would not
find the existing
language to be troublesome if the in-service
training was
conducted in the Tn-Cities
area. The Association finds
fault with the failure of the City to
compensate employees
for the time that is required to travel to
distant training
areas.
The City asserts that it has paid officers for travel
to out-of-town training as required by
federal law. It also
points out that paid travel time is not
provided by the
contracts of the comparable jurisdictions.
Officers
are, on occasion, required to travel to distant
locations, such as
training.
The City has not paid overtime for time spent in
travel beyond the normal work day . The City has required
officers to work a full shift and then, on
the same day,
travel as much as 250 miles by bus or car in
order to arrive
at the training site on time.
The
City provided information regarding seven13 of the
comparable jurisdictions. None of them provided for paid
travel time.
13No
information on this issue was supplied with
regard to
_____________________
There
is insufficient basis for the Association's request
that all travel time to and from in-service
training should
be considered as time worked. Such a request is contrary to
language which has been previously
negotiated by the parties.
The Association's request is unsupported by
reference to the
comparable cities or by other evidence. No change in
contract language shall be ordered in this
regard.14
14The
Association has pointed out an apparently unfair
requirement that officers work a full shift
and then travel
over 200 miles by car or bus on the same day
without
additional compensation. Regarding that specific problem,
the Association's proposal is overly broad.
___________________________________
The
parties have previously agreed that travel time to
and from training classes cannot be counted
as overtime.
Even in the absence of such language,
arbitrators have
usually been unwilling to grant compensation
for travel time
in the absence of a specific agreement to
that affect.
Badger Coal Co., 77-2 ARB
IX. VACATION
CREDIT
Under
the expired agreement, vacation credit accrues as
follows:
ARTICLE XIV - HOLIDAYS AND VACATIONS
Section
1. Vacations. (a) Vacation
Credit.
All regular employees shall
receive vacation credit at the rate of one
(1) work day for each month of continuous
service starting from the date of his
probationary employment. After entering
his tenth (10th) year of continuous
service each employee shall earn vacation
credit at the rate of one and one-fourth
(1-1/4) work days per month. After
entering his fifteenth (15th) year of
continuous service, each employee shall
earn vacation credit at the rate of one
and one-half (1-1/2) work days per month.
* * *
The
Association proposes that this language be replaced
with the following:
ARTICLE
XIV - HOLIDAYS AND VACATIONS
Section
1. Vacations. (a) Vacation
Credit. All regular employees shall
receive
vacation credit in an amount equal
to
the following table:
YEARS
OF SERVICE DAYS/MONTH
0-5 1.0
6-10 1.25
11-15 1.50
16-20 1.75
21-25 2.0
26- 2.25
*
* *
The Association asserts that there is a
large gap between the
City's vacation accrual rate and the rates
of the comparable
cities.
The
City argues that the current language should be
retained.
It recognizes that the vacation hours currently
granted is on the low side of average after
15 years of
employment.
The City points out that no testimony on this
issue was presented at the hearing. It also points out that a
change at this time would benefit only three
employees.
The
chart on the following page shows the number of annual
vacation hours accrued in the comparable
cities. The first
column reflects the number of hours accrued
during the first
five years of employment. The second' column reflects the
vacation accrual during the sixth through
tenth year of
employment, etc.
Annual Vacation Accrual for
Years of Service
1-515 6-10 Years 11-15 16-20
Pullman 96 120 144 168
Richiand No information provided
Wenatchee 96 120 14416 160
Delano17 80 10418 14419 160
Grants Pass
100 120 160 160
Klamath Falls
11020 144 168 168
Average
100.25 129 155 167
Median 98.00 120 160 160
Pasco 96 96 120 144
_________________
15Some
cities increase the rate of vacation accrual at
the start of the fifth year, while others
provide for the
increase at the end of the fifth year. In either case, the
city was listed in the 6-10 year
category. The other
categories have been treated similarly.
16This
rate is an average for the period since the
rate changes from 120 to 160 after 12 years.
17Delano
has a higher rate for employees hired before
November 1984.
18This
is an average figure for the period since the
accrual rate changes each year.
19This
is an average figure for the period since the
accrual rate changes each year.
20This
is an average figure for the period since the
accrual rate changes in the third year.
____________________
While
the vacation accrual rate in
during the first five years of service,
after five years, it
is clearly behind all of the comparable
cities. There has
been no justification offered for such a
discrepancy.
Therefore, I shall order that vacation
accrual be raised to
the prevailing rate among the comparable
cities. The revised
language shall read:
ARTICLE
XIV - HOLIDAYS AND VACATIONS
Section
1. Vacations. (a) Vacation
Credit.
All regular employees shall
receive vacation credit at the rate of one
(1) work day for each month of continuous
service starting from the date of his
probationary employment. After entering
his sixth (6th) year of continuous service
each employee shall earn vacation credit at
the rate of 1.25 work days per month.
After entering his eleventh (11th) year of
continuous service, each employee shall
earn vacation credit at the rate of 1.50
work days per month. After entering his
sixteenth (16th) year of continuous
service, each employee shall earn vacation
credit at the rate of 1.67 work days per
month.
X. SICK
LEAVE
A. Sick Leave Accrual, Cap, and Cash Out
In
the expired Agreement, Article VII, Section 3.a
provides:
a. Accrual of Sick Leave - Sick
leave
shall accrue at the rate of 8.25 hours for
each month for each regular employee to a
maximum accumulated sick leave of 120 days;
however, the severance benefit provided
hereafter shall be based on the product of
twenty-five percent times the accrued number
of sick leave days up to a total of 90 days.
The Association proposes that the sick leave
accrual rate be
changed to 8.0 hours per month and that
there be no cap on
the amount that can be accumulated and on
the severance
benefit.
The City opposes these changes.
No
evidence was presented regarding the cap on severance
benefits.
The situation in the comparable jurisdictions for
the sick leave accrual rate and cap is reflected
in the
following chart:
Sick
Leave
City Accrual Rate Cap
Pullman 8 800
Richi and 8 None
Brawley 8 None
Grants
Pass 8 None
Klamath
Falls 8 960
I
find that a change in the sick leave accrual rate to
8.0 hours per month is appropriate. This rate is consistent
with the rate in all of the comparable
cities and also
conforms with the change in the normal work
day which has
been decided elsewhere in this Opinion. The 960-hour sick
leave cap is typical of the caps contained
among the
comparable cities and shall be
retained. Since there is no
evidence justifying a change in the cap on
sick leave cash
out, I find that no change in that item is
justified.
The
Association also proposes that the following language
be added to the Agreement:
Any employee promoted outside of the
bargaining unit should have his LEOFF I
sick leave cashed out effective the date
of his promotion.
The Association reasons that there is a need
to recognize a
natural hesitancy on the part of the
individual officers to
accept promotions if it means possibly
giving up those
accrued benefits. The City opposes this proposal.
No
evidence was presented regarding this issue.
I find
insufficient reason for adding the proposed
language to the
Agreement.
B. Light Duty
Currently,
Article VII, Section 5 provides:
Section 5. Return to Work. LEOFF II
officers will be allowed to return to work
after full recuperation from serious
illness or disability after a maximum
period of six (6) months. No light duty
is available to such officers.
The Association proposes that the City make
a reasonable
effort to place disabled officers intolight duty positions.
The Association asserts that this would
permit the City to
get needed work done, while employees keep
working instead of
languishing on sick leave. The City responds that the
current language should be maintained.
Detective
Richard Morrell testified that he was able to,
and did, function as a detective despite a
recent injury that
would have prevented him from performing
patrol duties.
Detective Morrell testified that disabled
patrol officers
could perform detective type functions. Detective Robert
Moore testified that after he was injured,
he was asked to
come in to work in the detective section on
a limited duty
basis.
Officer Ken Roske testified that he was off
work for
14 days because of an on-the-job
injury. He utilized his
sick leave during that time. Officer Roske
testified that he
would have been able to perform light-duty
work after being
out about five days. Officer Dennis Cummins testified that
he broke his finger while on duty and was
off for two
months.
He believed that during this period he could have
been doing follow-up interviews of witnesses
or other
light-duty work. Officer Bill Corbett testified that an
injury caused him to be off work for three
or four months.
He used up his sick leave and then was
uncompensated.
Officer Corbett believes he could have
worked during this
time by taking reports over the phone and
interviewing
witnesses.
Chief
Francis testified that there is a limited amount of
light-duty work that could be done and
limited space for it
to be performed. Captain Dennis Kasparek
testified that the
light-duty concept would place a difficult
administrative
burden on the City. He testified that the department is
cramped for space and there is no reasonable
space for the
light-duty work to be performed. Captain Kasparek
also
testified that keeping the light-duty
employee busy would be
burdensome on the administration.
Of
seven comparable cities surveyed, none had contract
language which allowed or required
light-duty
arrangements.21
21No
information was provided regarding Richland,
Kennewick, and Grants Pass.
_________________________________
I
find there to be insufficient reasons for requiring the
City to consider light-duty
assignments. While the option of
performing light-duty work would be a
benefit to the
employees, it also would create a burden on
the City. Each
time there was an officer absent because of
injury, there
could very well be a dispute as to whether
light-duty work
could be found for that officer. There is no support for the
Association's position among the comparable
cities. I find
insufficient basis for adding the light-duty
requirement to
the Agreement.
C. paternity
Article
VII, Section 6 currently reads:
Section
6. Paternity. Employees
will
be granted up to five (5) consecutive
days off without pay immediately after the
birth of their (legitimate) child if sick
leave is not otherwise available. The
employee at their option may use
accumulated sick or vacation leave
benefits in order to avoid the loss of pay
during the period of paternaty
[sic]
leave.
The Association has proposed making the
leave paid, instead
of unpaid, and the deletion of the
requirement that the
status of the newly born child be
"legitimate." The City
opposes these proposals.
The
Association's request for paid paternity leave is
denied.
No evidence was presented to support this request.
There is no indication that any of the
comparable cities
provides such a financial benefit.
The
Association's proposal that the word "legitimate" be
removed as a requirement is reasonable. As the Association
points out, the relationship between parents
and children
does not depend on the marital status of the
parents.
Therefore, the first sentence of Article VII,
Section 6 shall
be amended to read as follows:
Employees
will be granted up to five
(5) consecutive days off without pay
immediately after the birth of their child
if sick leave is not otherwise available.
D. Sick Leave procedures
The
City has proposed that Article VII, Section 2 be
modified so that the procedures for the use
of sick leave set
forth in Section 3.c for LEOFF II employees
be incorporated
into the LEOFF I employee section. The City points out that
one Association witness testified that the
provisions of
subsection 3.C are reasonable and in fact
have been expected
of LEOFF I officers. No Employer witness testified regarding
this proposal. It is not clear from the record why this
change in contract language is desired or
needed. I find
insufficient basis to justify a change to
Article VII,
Section 2.
E. Family Illness
The
City proposes an amendment to Article VII, Section 4
which concerns family illness. The City would like to see
state statutory requirements for the use of
sick leave for
caring for sick children replace the
existing contract
language.
No evidence was presented which would explain or
justify the City's desire or need to amend
the Agreement in
this regard.
I find insufficient basis to justify a change
to Article VII, Section 4.
XI. SENIORITY
The
Association asserts that there should be a new
article which would define seniority and
describe how layoffs
would be handled. The City asserts that this subject is
adequately covered by state and local civil
service rules.
The Association responds that the subject
should be in the
contract so that any changes would have to
be bargained, and
so that the Association would have a say in
selecting an
impartial decision maker.
No
evidence was presented on this issue except that the
Association pointed out that four of the six
comparable
Washington cities contain a provision
defining seniority.
Since there is no indication of any problem
with the current
civil service method of handling seniority,
I find
insufficient basis for requiring a change in
the Agreement.
XII. ZIPPER
CLAUSE
The
Association proposes that the zipper clause contained
in Article II, Section 3 be deleted from the
Agreement. In
this provision, the parties agreed to waive
the right to
bargain regarding any matter not covered by
the Agreement.
The Association reasons that such a
provision strains the
relationship, since either party could
unilaterally implement
regarding terms and conditions of employment
that would fall
within the coverage of the broad zipper
clause.
I
find there to be insufficient basis for changing the
contract language in this regard. The Association presented
no evidence showing a need to eliminate this
existing
contract provision. Three of seven comparable cities22
have a zipper clause in their contract.
22Wenatchee,
Barstow, and Delano have zipper clauses.
Aberdeen, Pullman, Walla Walla,
and Klamath Falls do not. No
information in this regard was presented for
Richland,
Kennewick, and Grants Pass.
________________
XIII. MANAGEMENT
RIGHTS
The
Association has proposed that the following language
be added to the existing management rights
clause of the
Agreement:
4. The Employer will not utilize
these rights to avoid responsibilities as
outlined under this collective bargaining
agreement, and specifically will not
exercise its rights to give employees time
off on an involuntary basis in order to
cut back on hours of work to save money,
and will not sub-contract out any
bargaining unit work, including hiring
private security guards to patrol city
property, and will not enter into
pre~employment
"yellow dog" contracts with
those persons who are hired into positions
represented by the Association.
These are items specifically listed in this
provision: time
off to save money, subcontracting security
guards, and pre-
employment contracts.
A. Time Off to Save Money
The
Association asserts that it proposed this language in
response to an assertion by a City
representative during
negotiations that the City could send
Association members
home during a shift in order to save money.
I
find insufficient basis for adding this provision to
the Agreement. The Association does not assert that its
position is supported by reference to the
comparable cities.
There is no evidence that this provision is
necessary to deal
with a real problem. There is no indication that employees
have ever been sent home during a shift in
order to save
money, and there is no indication that such
is planned.
B. Subcontracting
This
issue arose when the City hired private security
guards to patrol Memorial Park in 1988. Chief Francis
testified that the City was experiencing
problems at its
Memorial Park and Volunteer Park. Both were infested with
drug dealers, prostitutes, and
transients. The City did not
have enough officers to take care of the
situation in both
parks.
It handled the situation at Volunteer Park with its
own officers. It contracted with a local security patrol
company to place private security guards in
Memorial Park and
keep them there all day. These private security guards were
not deputized. They were intended to be used as a deterrent
to the presence of undesirable people in the
park. The
guards were instructed to call the police
department on the
radio if undesirable people entered the park
and stayed. The
problem at the parks was solved.
The
Association asserts that the hiring of private
security guards is a departure from past
practice and is
removing income from the Association
members.
I
find insufficient basis for adding this provision to
the Agreement. The Association has not asserted that its
position is supported by reference to the
comparable cities.
There has been no showing that the temporary
use of the
security guards has had a significant
adverse affect on the
bargaining unit. No employees have been laid off, and, in
fact, the City has added significantly to
the size of its
police force. The security guards were successfully used
for
a temporary problem. They did not serve as police officers.
They had no power of arrest. Rather, they served only as a
presence to deter trouble, and to contact
the police if they
witnessed any problem. The use of these security guards does
not justify adding to the Agreement a
provision which would
prohibit the City from contracting out.
C. Preemployment
Contracts
The
Association proposes that the City not be permitted
to enter into preemployment
contracts with new employees.
The Association asserts that this is aimed
at the City's
practice of requiring new hires to sign an
agreement to
reimburse the City for the costs of training
if the new hire
leaves the Department within 24 months. The Association
reasons that the current City practice
amounts to individual
bargaining and is a circumvention of the
bargaining agent.
The Association points to several
arbitration decisions where
arbitrators have held that an employer
cannot enforce
individual agreements concerning working
conditions that have
not been agreed to by the union. It also points to a
decision by the Washington Public Employment
Relations
Commission which held that a union had
standing to contest an
employer's requirement that all new
employees not use tobacco
products on or off duty, even though it did
not apply to
current employees. Kitsap County, Dec. 2872 (PECB, 1988).
The
Association has not contended that its position is
supported by reference to the comparable
cities. There is no
evidence that the pre-hire agreement
required by the City is
unusual.
There is also no evidence that the City has ever
applied the pre-hire agreement. If the City has engaged in
unlawful unilateral conduct, then the proper
forum would be
before PERC or perhaps before a grievance
arbitrator. Here,
there is just insufficient basis for finding
that there
should be a specific clause in the Agreement
banning all
pre-hire individual contracts.
D. Long Form Clause
The
City proposes to replace the management rights clause
currently in the Agreement. The City asserts that long form
management rights clauses, such as it
proposes, are commonly
found in collective bargaining
agreements. However, the
management rights clause which the City
proposes is about the
same length as the one it is intended to
replace. The
language is different. However, there is no evidence which
would show why the proposed new language
should be favored
over the language which was in the expired
Agreement. I find
there to be insufficient basis for a change
in the management
rights clause contained in the previously
negotiated
Agreement.
XIV. CREATION
OF NEW CLASSIFICATION
The
Association proposes the following new article:
ARTICLE
IIIA - CREATION OF NEW
CLASSIFICATIONS
Should
the Employer create new
classifications which are added to the
Pasco Police Association, or the Employer
substantially changes the duties of the
classifications which are represented by
the Association, or as a result of a PERC
decision, new classifications are added to
the Association, then the Agreement shall
be open for the sole purpose of
negotiating wages and working conditions
for those classifications.
The Association argues that this clause is
needed to deal
with an accretion to the bargaining
unit. The Association
reasons that once the new positions are
within the unit and
covered by the Agreement, there should be
negotiation over
how those positions are paid and how they
are worked.
The
City argues that there is no need for this
provision.
The City points out that the Association is by
law entitled to impact bargaining on
subjects for which
decision bargaining is not required by the
employer.
I
find insufficient evidence to support an additional
article dealing with new
classifications. The Association
has not contended that its proposal is
supported by reference
to the comparable cities. There is no evidence that any
problem in this area has ever arisen in the
past or is
expected in the future. The Association has not met its
burden of proving why this new language is
warranted.
XV. BILL
OF RIGHTS
The
Association has proposed that a very lengthy officer
"bill of rights" be included in
the Agreement. This proposal
sets forth 3 1/2 single-spaced typewritten
pages of numerous
protections for the officer. These rules and restrictions
relate to departmental disciplinary
investigations, personal
information that the officer may be required
to disclose,
political activity by the officer, the use
of lie detector
tests, and matters related to personnel
records and
evaluations.
The Association asserts generally that these
rules are necessary in order for officers to
obtain due
process.
The City questions the need for such an article.
Chief
Francis testified that the Department has had
policies and procedures regarding internal
investigations and
disciplinary matters since 1984, when he
worked together with
representatives of the Association to
establish them. Chief
Francis further testified that no
Association representative
has ever indicated to him that these
policies and procedures
were inadequate. Association president Schweighardt
testified that he was not aware of any
problems with the
manner in which internal investigations are
conducted.
The
Association has offered no detailed evidence or
arguments which would support any of the
many matters which
are contained within its proposed bill of
rights. Of the
seven comparable cities for which such
information was
provided,23 only two24
contained a bill of rights
article, and those related to internal
investigations only.
I find there is insufficient basis for
requiring the
inclusion of a bill of rights in the
Agreement.
24No
such information was provided with regard to
Richland, Kennewick, and Grants Pass.
24Aberdeen
and Walla Walla.
_________________
XVI. GRIEVANCE
- DISCIPLINE PROCEDURE
The
expired Agreement provides that disciplinary actions
which may be appealed to the City Civil
Service Commission
are not subject to the grievance
procedure. The Association
proposes to allow employees the option of
appealing any
disciplinary action through the grievance
procedure or
through the Civil Service Commission. The Association
asserts that it would be more equitable if
both parties have
a hand in the selection of the decision
maker. The
Association asserts that a majority of the
comparable cities
settle discipline matters through the
grievance procedure.
The
City asserts that the current handling of
disciplinary appeals by the Civil Service
Commission is a
process that has worked, and no change is
necessary. The
City points out that this process is set
forth in RCW Chapter
41.12 which provides a uniform statewide
body of law setting
forth both procedural and substantive
standards for the
discipline of city police officers. The City points out that
the Association's proposal does not
establish any standards
to be used by a grievance arbitrator in a disciplinary
matter.
The City notes that there is a well established body
of case law interpreting Chapter 41.12 which
serves to
provide for stability, uniformity and
predictability.
I
find insufficient basis to adopt the Association's
proposal.
There is no evidence which would indicate any
problem with the current method of handling
discipline.
There is not even any indication of mistrust
of the current
system by bargaining unit members. Among the comparable
cities, five provide for the arbitration of disciplinary
disputes;25 four do not.26 Thus, no trend is apparent.
25Kennewick,
Pullman, Richland, Grants Pass, and
Klamath Falls.
26Walla
Walla, Wenatchee, Barstow, and Delano. The
parties disagree as to the situation in
Aberdeen. The
contract language for Aberdeen is not clear
in this regard.
XVII. SMOKING
The
City proposes the following new article:
Employees who have not signed
agreements not to smoke, both on the job
and off the job, as a condition of
employment at the time of initial hire
shall have until June 1, 1990, to totally
quit smoking. Until June 1, 1990,
employees who have not previously signed
agreements not to smoke as a condition of
employment at the time of hire shall
confine their smoking to off the job. All
new employees shall, as a condition of
their employment sign an agreement not to
smoke, both on the job and off the job, as
a condition of employment.
The
City will pay up to $300.00 (one
time)
for tuition reimbursement to any
existing employee who enrolls and completes
a stop smoking program in order to quit
smoking.
The City asserts that this proposal is
intended to maintain a
healthful working environment and to reduce
the costs of
health insurance coverage. The Association asserts that
there has been no showing that this
requirement is needed or
that there is a fitness problem in the
Department due to
smoking.
The Association asserts that if a smoking article
must be included, it should be a positive
one, such as
increasing the pay of nonsmokers by 2 percent.
In
RCW Chapter 70.160, the Washington State legislature
recognized the increasing evidence that
tobacco smoke in
closely confined spaces may create a danger
to the health of
nonsmokers.
In view of this, the legislature banned smoking
in public places, except in designated
smoking areas. One
commentator has suggested that employers may
face costly
litigation if they fail to protect their
nonsmoking employees
from smoking employees. Raymond L. Paolella,
"The Legal
Rights of Nonsmokers in the Workplace,"
10 U.P.S. Law Rev.
591-632 (1987)
Officer
Schweighardt testified that a number of officers
use tobacco products and that because of the
stressful nature
of the job, officers are smoking more and
more.
I
find that there is insufficient basis for adding a
no-smoking provision to the Agreement. There is no evidence
of any support for these proposals among the
comparable
cities.
The City's proposal goes way beyond the protection
of nonsmokers. The City's proposal would restrict the use of
tobacco products off premises and during
off-duty time.
There is no evidence of the effect on the
City of officers
continuing to smoke while not in the
presence of nonsmoking
employees.
XVIII . CAREER
DEVELOPMENT PLAN
A
. Education/Longevity
Article
XVIII in the expired agreement provides, in
pertinent part, as follows:
*
* *
Effective
1/1/87 each employee shall
be
eligible for an education premium for
compensable
work upon obtaining a college
degree
in one of the above specified areas
of
study in the following amounts:
a. Police Officer:
Degree
Level Achieved 0-5 vrs 6-10 vrs 11+ vrs
AA
(AS) $50/mo $75/mo $100/mo
BA
(BS) $100/mo $125/mo $150/mo
b. Sargeants
[sic] and Corporals:
Degree Level Achieved Amount
AA
(AS) in Police Related Field $75/mo
BA
(BS) in Police Related Field $125/mo
c. Evidence Technition
[sic] (if remains in
bargaining
unit):
Degree Level Achieved Amount
AA
(AS) in Police Related Field $40/mo
BA
(BS) in Police Related Field $80/mo
The above language provides extra longevity
pay only for
employees with a college degree.
The
Association seeks to separate the longevity and
education premiums and have them calculated
on a percentage
basis.
The Association's proposal reads as follows:
Section
2. Education/Longevity. Each
employee
shall be eligible for the
following
premiums in the following
amounts:
Completed
Years of 3
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
Service
Premium
for % 2 2 2 2 2 3 3 3 3 3 5 5 5 5 5 7
Longevity
Two Years
College
Premium
% 2 2
4 4 4 4
4 5 5 5 5 5 7 7 7 7 7 9
Bachelor's
Degree
% 3 3 5 5 5 5 5 6 6 6 6 6 8 8 8 8 8 10
Premium
(The above percentages are computed from
the base wage of the eligible employee.)
The Association asserts that the City needs
a better trained
and better educated officer. The Association contends that
the Department's high rate of turnover
indicates that there
needs to be incentives to make officers stay
and keep their
experience and education in the City.
The
City proposes to retain the current contract
language.
It asserts that the longevity pay schedule is a
disincentive to promotion and to employees
furthering their
education.
It asserts that benefit levels should not be
calculated on a percentage basis so as to
automatically rise
with wage increases. Rather, it contends that the premium
should be set at a fixed dollar amount. It further asserts
that the current amounts paid are fair and
appropriate when
compared with the comparable cities.
Of
the seven comparable cities, for which data was
provided, 27 only Walla Walla combined educational
incentive and longevity in a manner which is
somewhat
comparable to
high school degree does receive a longevity
premium in the
following amounts:
5 years -
$17 per month
10 - 25
15 - 32
27Such
data was not presented for Richland, Kennewick,
and Grants Pass.
___________________
An officer in
additional pay which varies with the
officer's longevity:
AA BA
5 years 1% 2%
10 years 2% 4%
15 years 3% 6%
The situation in the other six comparable
cities is reflected
below:
Longrevity-Monthly Educational Incentive-Monthly
City AA BA
Pullman None 4% 8%
Klamath
Falls None 4% 10%
Based
upon a comparison with the comparable
jurisdictions, there is insufficient
justification for the
City to pay both separate longevity pay and
educational
incentive.
I base this finding on several considerations.
First, only one other comparable city pays
separate longevity
pay and educational incentive. Second, the parties have
relatively recently negotiated a format
which combines
consideration of longevity and
education. Third, one
comparable city has a similar format. For these reasons, and
particularly because of the lack of support
among the
comparable cities for paying a longevity
premium in addition
to an education premium, I have determined
to maintain the
current format of combining the premium for
education and
longevity.
I
find that a percentage increase is appropriate, rather
than a set monthly sum. The comparable cities are about
evenly split on this. The use of a percentage figure rather
than a dollar figure should lessen the risk
of conflict over
this issue in the future.
Below
is the language which shall replace the second
paragraph of Article XVIII. It reflects figures which are
within the parameters of the comparable
cities:
Effective
be
eligible for an education premium for
compensable
work upon obtaining a college
degree
in one of the above specified areas
of
study in the following amounts:
a. Police Officer:
Degree
Level Achieved 0-5 yrs 6-10
vrs 11+
yrs
AA
(AS) 2% 3% 4%
BA
(BS) 4% 6% 8%
b. Sergeants and Corporals:
Degree
Level Achieved Amount
AA
(AS) in Police Related Field 3%
BA
(BS) in Police Related Field 6%
c. Evidence Technician (if remains in
bargaining
unit):
Degree
Level Achieved Amount
AA
(AS) in Police Related Field 2%
BA
(BS) in Police Related Field 4%
B. Bilingual Incentive
The
Association proposes the following addition to the
Agreement:
Section
3. Bi-Lincrual
Incentive
A. Any Association member who is
bi-lingual in Spanish and whose proficiency
in Spanish is to the extent that that
officer is utilized to translate for the
department, shall receive 5% premium pay
for having the capability to do bi-lingual
translation.
B. Any Association member who
believes
that he or she is bi-lingual in
Spanish
shall submit written notification
of that fact. Should the City disagree
with whether or not the Association member
is bi-lingual in Spanish, that matter shall
be resolved in arbitration pursuant to the
grievance procedure of this Agreement.
The Association argues that extra pay for
fluency in Spanish
is warranted because of its value to the
City and also
because of the extra work which
Spanish-speaking officers are
called upon to perform. The City opposes this proposal
because it has not been shown that such
incentive pay would
produce new bilingual employees. The City asserts that the
proposed bilingual incentive is not an
incentive at all, but
rather a premium pay for usage of a language
skill already
acquired by a few department employees. The City points out
that under the expired Agreement employees
can already
receive tuition reimbursement for Spanish
courses, and that
education/longevity pay is given for degrees
obtained from
college course work, including Spanish
classes. The City
further points out that Spanish-speaking
employees are
afforded additional work and overtime
opportunities.
The
City has a significant Spanish-speaking population.
Chief Francis testified that he would like
to have a few more
Spanish-speaking officers. Currently there are two.
Detective Robert Mancillas
is one of them. He testified that
he is called upon on a daily basis to
translate for other
officers or for the dispatcher. He has been called many
times at home at all hours to do this. Often this takes up
only five or ten minutes per call. Detective Mancillas
testified that he was discouraged by a
supervisor from
requesting overtime for such short
periods. Detective
Mancillas
further testified that either he or the other
Spanish-speaking officer must be the first
officer through
the door on almost every search warrant
which involves
narcotics.
Detective Mancillas testified that as a result
of
his having to translate, he has less time to
perform his
regular detective functions, and his work
load and stress
level keep mounting. Officer David Allen, in a written
statement, indicated that he has to use one
of the
Spanish-speaking officers on a daily basis,
in order to
communicate with witnesses.
Three
of the comparable cities offer extra compensation
for officers who are fluent in Spanish. In
qualified bilingual officers receive 5
percent of base hourly
salary for actual time spent in providing
bilingual
services.
In
extra pay for proficiency in a foreign
language. In
a bilingual officer receives an additional
$25 per month.
I
agree with the Association's position that an officer
who is fluent in Spanish deserves extra
compensation. Such
officers have special value to the City. They provide a
necessary service which other officers are
incapable of
performing.
More demands are placed upon them, both while on
duty, as well as during their off-duty
hours.
While
most of the comparable cities do not offer extra
pay for Spanish-speaking officers, it is
unlikely that most
of them have the significant
Spanish-speaking populations
which would cause such officers to be so
valuable. A
significant minority of the comparable
cities do provide
premium pay for bilingual officers.
I
find that the City shall provide additional
compensation to those officers who are
fluent in Spanish, in
an amount which would increase their base
wages by 2
percent.
The 2 percent figure is less than that paid by
XVIII:
Any
Association member who is fluent
in
Spanish shall have their base wages
increased by 2 percent. Such proficiency
shall be reasonably determined by the City.
XIX. MEDICAL
INSURANCE
The
current Agreement reads:
ARTICLE
X - MEDICAL,DENTAL, AND LIFE
INSURANCE
Section
1. Medical and Dental
Insurance
for Employees and Dependents.
Effective
31,
1988, the parties have agreed to the
following:
a. The City will pay up to Two
Hundred
Dollars ($200.00) per month per
Employee
for medical and dental insurance.
b. The Employee and the Employer will
share any rate increases on a fifty-fifty
basis up to a total premium of Two Hundred
and Sixty Dollars ($260.00) per month for
medical and dental insurance.
c. The employer will pay any excess
premiums
above $260 per month.
The
City retains the right to maintain
a self insurance program or to select
insurance carriers, for the purpose of
containing the premium rate increases.
During the term of the Agreement, the City
retains the right to:
i. Raise the
deductible and medical
to One Hundred Dollars ($100.00) per person
per calendar year to a maximum of Three
Hundred Dollars ($300.00) per covered
family per calendar year.
ii. Maintain a deductible and
Eighty/Twenty percent (80%/20%)
co-insurance which apply to all covered
medical and expenses incurred, with the
exception of the first Five Hundred Dollars
($500.00) of accident expenses, which will
be covered One Hundred Percent (100%) to
Five Hundred Dollars ($500.00) and not
subject to the deductible.
iii. Establish a Twenty-five Dollar
($25.00) deductible per person per calendar
year on dental to a maximum of Seventy-five
Dollars ($75.00) per covered family of
Class 2 and Class 3 dental expenses. The
deductible will not apply to Class 1 dental
expenses, i.e., covered diagnostic and
preventive care.
Section
2. Vision Care. LEOFF II
officers shall be eligible for
reimbursement to an annual maximum of Two
Hundred Dollars for the combined usual and
customary charges for (a) visual
examination, (b) corrective lenses, (c)
frames.
The program will not cover
oversize, photogray,
or decorative
glasses.
An examination and new lenses may
be obtained every twelve (12) months, but
only if the latter are medically required.
Repair and/or replacement of broken or lost
glasses is not an eligible expense.
Section
3. Life Insurance. The City,
for the term of this Agreement, shall
continue to provide an a
plan
with benefits increased to Fifteen Thousand
Dollars ($15,000.00) of face value term
insurance.
The City proposes to raise the amount it
would pay per month
for medical and dental insurance to $225
effective January 1,
1989, and to $250 effective January 1, 1990,
and to share
equally with the employee any rate increases
above these
amounts.
The Association proposes that Article X should read
as follows:
ARTICLE
X - MEDICAL. DENTAL. AND LIFE
INSURANCE
Section
1. Medical and Dental
Insurance
for Employees and Dependents.
Effective January 1, ____, through December
31, ____, the parties have agreed to the
following:
The
City agrees to provide a medical
an dental insurance plan that is equivalent
to or better than the plans in effect on
the date of the signing of this Contract.
The City will pay the premium cost for the
coverage.
The
City retains the right to maintain
a self insurance program or to select
insurance carriers, for the purpose of
containing the premium rate increases.
The
insurance coverage provided by the
City
shall contain the following features:
i. A maximum
deductible of Seventy
Five Dollars ($75.00) per person per
calendar year to a maximum of Two Hundred
Twenty Five ($225.00) per covered family
per calendar year.
ii. The deductible and Eighty/Twenty
percent (80%/20%) co-insurance will apply
to all covered medical expenses up to
Twenty Five Hundred Dollar ($2,500). Upon
reaching the Twenty Five Hundred Dollar
($2,500) cap, coverage will be One Hundred
Percent (100%) . An exception to the
deductible coverage will be the first Five
Hundred Dollars ($500.00) of accident
expenses, which will be covered One Hundred
Percent (100%) to Five Hundred Dollars
($500.00) and not subject to the
deductible.
iii. A maximum Twenty-five Dollar
($25.00) deductible per person per calendar
year on dental to a maximum of Seventy-five
Dollars ($75.00) per covered family or
Class 2 and Class 3 dental expenses. The
deductible will not apply to Class 1 dental
expenses, i.e., covered diagnostic and
preventive care.
iv. The City shall provide each
employee
a complete physical examination,
at no cost to the employee by a physician
of the City's choice, during the pendency
of this Agreement. Provided however, that
the employee has not had a complete
physical within the last three (3) years.
Section
2. Vision Care. LEOFF II
officers shall be eligible for
reimbursement to an annual maximum of Three
Hundred Dollars for the combined usual and
customary charges for (a) visual
examination, (b) corrective lenses, (c)
frames.
The program will not cover
oversize, photogray,
or decorative
glasses.
An examination and new lenses may
be obtained every twelve (12) months, but
only if the latter are medically required.
Repair and/or replacement of broken or lost
glasses is not an eligible expense.
Section
3. Life Insurance. The City,
for the term of this Agreement, shall
continue to provide an employer-paid plan
with benefits increased to Fifteen Thousand
Dollars ($15,000.00) of face value term
insurance.
Section
4. The Employer will provide
a monthly income disability insurance
policy for each LEOFF II member. The
policy shall provide compensation at
66-2/3% of total monthly base salary after
ninety (90) days and continuing until age
sixty-five (65).
The
Association asserts that the vast majority of the
comparable jurisdictions do not favor having
employees pay
for some part of their insurance
premium. The Association
asserts that the increasing insurance costs
have been harmful
to the employees. The Association further asserts that the
maintenance of benefits language is
necessary in order to
prevent the City from being able to change
the plan
unilaterally to the detriment of the
employees.
The
City argues that the present premium cost sharing
arrangement helps keep rate increases down
by making the
employee conscious of the costs of medical
services. The
City asserts that a number of the comparable
jurisdictions
have some sort of cost sharing provision or
an absolute cap.
The City asserts that there is no evidence
why a maintenance
of benefits provision should be
included. It points out that
its insurance plan covers all City employees
and, therefore,
a maintenance of benefits agreement can
prevent or inhibit a
change in coverage desired by City employees
overall. The
City further points out that the Association
proposal for
City paid LEOFF II disability insurance was
not pursued at
the hearing, and that this proposal finds
little support
among the comparable cities.
The
City is currently self-insured for its medical
coverage.
Premiums increased to $249 per month in May 1989.
Several employees testified to the
considerable out-of-pocket
medical costs which they have incurred under
the present
system.
The
situation in the comparable jurisdictions is
described on the following page
City
Currently Cap on
City- Maintenance of
City Pays 100%
of Premium Paid Premium Benefits Provision
in
Contract)
Richiand Yes No ? (Not in evidence)
Grants Pass Yes No ? (Not in evidence)
8-Yes/2-No 3-Yes/7-No 4-Yes/2-No
I
find that Article X, Section 1 shall be amended to read
as follows:
Section
1. Medical and Dental
Insurance for Employees and Dependents.
Effective
31, 1990, the following shall apply:
a. The City will pay up to Two
Hundred and Seventy Five Dollars ($275.00)
per month per Employee for medical and
dental insurance.
b. The Employee and the Employer will
share any rate increases which result in a
premium of over Two Hundred and Seventy
Five Dollars ($275.00) on a fifty-fifty
basis up to a total premium of Three
Hundred and Twenty Five Dollars ($325.00)
per month for medical and dental insurance.
c. The Employer will pay any excess
premium above Three Hundred and Twenty five
Dollars ($325.00) per month.
The
City retains the right to maintain
a self-insurance program or to select
insurance carriers, for the purpose of
containing premium rate increases. The
City agrees to provide a medical and dental
insurance plan that is at least
substantially equivalent to the plans
currently in effect.
During
the term of the Agreement, the
City
retains the right to:
I. Maintain a deductible in the
medical insurance program of One Hundred
Dollars ($100.00) per person per calendar
year to a maximum of Three Hundred Dollars
($300.00) per covered family per calendar
year.
II. Maintain an Eighty/Twenty Percent
(80%/20%) coinsurance which apply to all
covered medical and expenses incurred, with
the exception of the first Five Hundred
Dollars ($500.00) of accident expenses,
which will be covered One Hundred Percent
(100%) to Five Hundred Dollars ($500.00)
and not subject to the deductible.
iii. A maximum Twenty-five Dollar
($25.00) deductible per person per calendar
year on dental to a maximum of Seventy-five
Dollars ($75.00) per covered family or
Class 2 and Class 3 dental expenses. The
deductible will not apply to Class 1 dental
expenses, i.e., covered diagnostic and
preventive care.
The
new language retains the premium co-payment concept
which the parties have previously
negotiated. The cap has
been substantially raised so as to encompass
the large
premium increase which occurred during
1989. In effect, the
City will pay the entire premium for 1989,
and will do so
again in 1990 unless there is more than a 10
percent premium
increase during that year. I do not believe it is
unreasonable for employees to bear some risk
in the event of
skyrocketing health insurance costs as they
have in the
past.
On the other hand, the prevailing practice among the
comparable cities is that the employers are
currently bearing
100 percent of the cost of health
insurance. In view of
this, a substantial increase in the Employer-paid
premium is
justified in order to meet the increased
cost.
I
agree with the Association that there should be a
provision which protects the employees from
unilateral
benefit cuts. Not only does such a provision seem
inherently
fair, it is also in line with the practice
of the majority of
the comparable cities for which relevant
information was
provided.
No
evidence was presented which would justify an
improvement in vision insurance. The Association's proposal
in this regard is rejected. There is also insufficient
evidence to support the Association's
proposal for a
reduction and cap on the deductibles for
medical expenses, or
for its proposal for physical examinations.
The
Association's request for a disability insurance
policy for LEOFF II members is
rejected. The Association
provided no evidence or argument in support
of this proposal.
XX. WAGE
INCREASE
The
Association has asked for a 9 percent increase for
1989.
It asserts that this increase is justified by
comparison with the comparable cities. The Association
requests a 5.4 percent increase for 1990
since that figure
represents the increase in the cost of
living. The
Association asserts that the contract should
have a two-year
duration since that is traditional for the
parties.
The
City's position is that the 1989 wage increase should
be 3 percent in view of both the average
wage and the average
total monthly compensation of the comparable
cities, as well
as the cost of living. The City asserts that the contract
should run for three years and that the wage
increases for
1990 and 1991 be set at 85 percent of the
CPI-W, West Coast-C
for the years ending October 1989 and 1990,
respectively.
In
order to determine how the wages paid in
with the comparable cities, I have compared
the base monthly
wages for top-step officers. I have not added in other
elements of compensation such as insurance,
education
premiums, longevity pay, and hours, since
these other
subjects have been specifically dealt with
elsewhere in this
Opinion, and it is my understanding that the
City will offer
benefits in these areas which are roughly
comparable to the
other cities. Below are listed the base monthly salary for
top-step officers in the comparable cities
during 1989:28
28The
figures listed are those provided in Association
Exhibit 20.
_________________
Pullman 2263
Grants Pass 2297
Klamath Falls 2227
Average 2489
Median 2484
The City's 1988 base wage level for a
top-step officer is 4.2
percent below the average of the comparable
cities, and 4.0
percent below the median.
In
1989, the comparable cities provided the following
increases in base level wages:
Pullman 3.7
Richiand 2.5
Grants Pass 4.0
Klamath Falls 8.0
Delano 3.0
The
average wage increase paid by the comparable cities
was 5.5 percent. The median increase was 3.95 percent. The
discrepancy between the average and the
median figures is
caused by the large increase in
large as any of the other comparable cities.
I
find that a base wage increase of 3.7 percent is
appropriate for 1989. That increase matches the cost of
living increase from October 1987 to October
1988, which is
the period the parties would have most
likely considered when
negotiating a 1989 wage increase. A 3.7 percent increase
doesn't quite get the officers to the
average base wage level
for the comparable cities. Still, the increase provided is
slightly larger than the compensation
increase negotiated
with the other City bargaining units. This increase is in
line with the increases provided in the
comparable
jurisdictions. Moreover, it would place the City sixth out
of eleven in base wages in relation to the
comparable
cities.
Thus, the City would be ranked right in the middle
with five comparable cities paying more and
five paying
less.
Also, the other benefits which have been awarded here
must be considered. The decrease in the work day, the
increase in vacation accrual, the change in
the
longevity/education premium, the increase in
the level of
City-paid health premiums, and the new
premium for
Spanish-speaking officers, all have a significant
monetary
cost to the City. I have also taken into consideration the
adverse economic climate in the City. While the City may
finish the year with a larger cash balance
than it
anticipated, there is no evidence that that
cash balance is
extraordinary. It must also be remembered that the City is
limited in the amount of revenue that it can
generate, and as
a result has had to reduce the number of
non-police employees
that it employs. For these reasons, and in view of the
statutory criteria that requires
consideration of not only
comparability, but also cost of living and
other factors
normally taken into consideration in the
determination of
wages, I find that a wage increase of 3.7
percent for 1989 is
appropriate.
Both
parties urge special consideration of the cost of
living increase in determining the
appropriate wage increase
for the second year of the contract. I find that the wage
increase for 1990 shall be 90 percent of the
CPI-W, West
Coast-C for the year ending October
1989. This should result
in a wage increase which is close to the
cost of living
increase, when that figure is adjusted
downward for the
element of health costs which is assumed in
large part by the
City.
It is also significant that the cost of housing in the
City has steadily been going down over a
period of years.
Therefore, I believe it is likely that the
wage increase
which I have found to be appropriate for
1990 is the most
likely figure to match the employees' actual
increase in
living costs.
I
find that a two-year agreement is appropriate.
The
expired agreement has such a duration, and
no evidence was
presented which would support a longer
duration.
Dated:
Alan
R. Krebs, Neutral Chairman