INTEREST ARBITRATIONS

Decision Information

Decision Content

Clark County Sheriffs’ Department

And

Clark County Sheriff’s Guild

Interested Arbitration

Arbitrator:      Eric B. Lindauer

Date Issued:   08/17/1993

 

 

Arbitrator:         Lindauer; Eric B.

Case #:              10054-I-92-00216

Employer:          Clark County

Union:                Clark County's Sheriff's Guild

Date Issued:      08/17/1993

 

 

 

IN THE MATTER OF THE ARBITRATION

BETWEEN

CLARK COUNTY SHERIFFS' GUILD,                    )        OPINION AND ORDER

Union,                                                                            )

                                                                                       )      Re:       INCENTIVE PLAN

and                                                                                 )        FOR 1992-94 CONTRACT

                                                                                       )

CLARK COUNTY SHERIFFS' DEPARTMENT,  )

Employer.                                                                      )

 

BEFORE

ERIC B. LINDAUER

ARBITRATOR

 

August 17, 1993

 

REPRESENTATION

FOR THE UNION:                                                                                                   FOR THE EMPLOYER:

Daryl S. Garrettson                                                                                                   Otto B. Klein

Hoag Vick Tarantino & Garrettson                                                                          Attorney at Law

1313 N.W. 19th Avenue                                                                                            610 Columbus Center, Suite 701

Portland, OR 97209                                                                                                   Seattle, WA 98104-7098

 

 

NATURE OF PROCEEDING

      The issue before the Arbitrator is a determination of which of

the two Incentive Plan proposals submitted by the Guild and the

County should be incorporated into the 1992-94 Collective

Bargaining Agreement.

      Clark County, Washington (the "Employer" or the "County") and

the Clark County Sheriffs' Guild (the "Guild" or the "Union") are

parties to a Collective Bargaining Agreement (the "Agreement")

which at Section 12.3 provides for the creation of a joint labor-

management committee to develop a new incentive program to be

implement on July 1, 1993. The joint labor-management committee

was unable to reach agreement on the terms of the new incentive

program and pursuant to Section 12.3.3 of the Labor Agreement, the

parties submitted the matter on a last-best-offer basis to

arbitration for resolution.

      The arbitration hearing was held on June 9, 1993, and July 6,

1993, at the Clark County Sheriff's Offices in Vancouver,

Washington. The Union was represented at the hearing by Daryl S.

Garrettson, and the Employer was represented by its counsel,

Otto B. Klein. At the hearing, the parties represented that the

parties had complied with the procedural steps of the Labor

Agreement and that the matter was properly before the Arbitrator.

The parties further stipulated the Arbitrator would retain

jurisdiction in this matter for a period of 60 days following the

issuance of the Order to assist the parties in resolving any

questions which may arise out of the implementation of the Order.

      During the hearing, each party had an opportunity to make

opening statements, introduce exhibits, and examine and cross-

examine witnesses on all matters relevant to the issue in dispute.

      At the conclusion of the hearing, the parties waived oral

argument and agreed to submit their closing arguments in the form

of written post-hearing briefs, which were received by the

Arbitrator in a timely manner. Upon receipt of the post-hearing

briefs, the hearing record was closed and the Arbitrator took the

matter under advisement. The Arbitrator now renders his Opinion

and Order in response to the issue in dispute.

 

ISSUE

      At the commencement of the hearing, the parties stipulated the

issue to be decided in this arbitration to be as follows:

__________

Which of the two incentive proposals should the

Arbitrator adopt, based on the last best offers of the

parties?

__________

 

RELEVANT CONTRACTUAL PROVISIONS

      In the opinion of the Arbitrator, the following provisions of

the Labor Agreement are relevant to determining the issue in

dispute:

__________

ARTICLE 12

INCENTIVE PROGRAM

 

12.1     For the period from January 1, 1992 to June 30,

1993, the current incentive plan shall continue as

prescribed by the 1989-1991 Agreement for the unit. Each

incentive level shall be adjusted by the salary increases

which become effective prior to June 30, 1993. Employees

receiving incentive compensation under that program shall

continue to receive incentive compensation under that

program until the effective date of implementation of a

new program as prescribed by Section 12.6.

12.2     Eligibility for incentive compensation under

Section 12.1 shall be limited to employees on the program

as of March 24, 1993 with the addition of a maximum of

three employees with applications for the program

currently on file.

12.3     New Incentive Program

      12.3.1 The Guild and the Employer agree to create

a joint labor-management committee to develop a new

incentive program to replace the former program effective

July 1, 1993. Factors to be considered include

knowledge, skill and contribution to the department and

profession in such areas as longevity, education,

assignments, job performance and other job related

factors. This list of factors is not intended to be

exclusive. The program will be designed, in part, to

further the department's community policing goals and

philosophy. The program may provide for incentive

compensation up to the equivalent of twelve percent (12%)

over base compensation designed to give levels to strive

for past the top step of the current pay scale.

      12.3.2 The committee will consist of up to four

management representatives and an equal number of

employee representatives designated by the Guild. If

approved by the Sheriff, Board of County Commissioners

and the Guild's Executive Board, the program shall be

implemented effective July 1, 1993.

      12.3.3 The Guild and the Employer agree to the

following schedule for the committee's work.

            A. The committee will be formed and shall

commence work on the development of the new program. The

parties agree to meet on a regular basis beginning on or

after May 3, 1993 in an attempt to resolve all issues

pertinent to an incentive plan. If the parties are

unable to reach agreement on the issue, the matter shall

be submitted on a last best offer basis to arbitrator

Eric Lindauer for hearing on the dates previously

selected by the parties for interest arbitration before

arbitrator Lindauer. The last best offers shall be

mutually exchanged and submitted 7 days prior to the

first day of the hearing. The arbitrator's decision must

be made within the confines of this Article and the

arbitrator shall have no authority to grant incentive

compensation beyond a limit of 10% over base

compensation. The arbitrator's opinion shall be

effective July 1, 1993. Except as provided herein, the

arbitration shall be conducted under the standards set

forth in RCW 41.56.450.

            B. Any modification to the time tables herein

and approach of the committee shall be mutually agreed in

writing.

__________

 

INCENTIVE PROGRAM PROPOSALS

 

CLARK COUNTY SHERIFFS' GUILD

      1. The following proposed Incentive Program is to be

effective July 1, 1993.

      2. The purpose of the Incentive program is to recognize and

reward career officers in their contribution to the Department, to

the community and to law enforcement profession.

      3. Participation in the Program is voluntary and limited to

full time employees of the Clark County Sheriff's Department and

members of the Clark County Sheriffs' Guild bargaining unit.

      4. Employees shall be responsible for providing the

documentation necessary to support their entitlement for an

incentive under this program. Documentation will be on the forms

provided by the Sheriff or in such other form acceptable to the

Sheriff.

      5. Qualifying activities may be performed on duty time to

the extent the Sheriff determines that such activities do not

interfere with the efficient operation of the Department.

      6. Procedure for participating in the Incentive Program:

            A. Any employee desiring to participate in the program

in any particular calendar year shall give the Sheriff a

written notice of intent to participate no later than the

preceding March 1. Probationary employees shall give such

notice within one hundred and eighty (180) days of the

commencement of probation. Said notice shall state the amount

of program credit the employee intends to achieve during the

ensuing year and what incentive, if any, the employee would

qualify for. Failure to give notice will prevent the employee

from participating in the Incentive Program during the year

for which notice was required, except an employee already

participating in the program will be entitled to continue

participation at the level currently held.

                  B. Employees who desire credit for prior work

experience, education or training must submit a written

request to the Sheriff and may do so at any time. The Sheriff

will approve the credit that falls within the definitions of

this article.

      7. The incentives provided for herein shall be based upon

work experience, education and training as defined below:

            A. Education. Education points are based on either

quarter or semester credit units. Units granted by an

accredited college or university completed with a grade of "C"

or "Pass," or better and under the requirements of the

granting institution are applicable toward fulfilling the

requirements of a degree. Each such quarter unit shall equal

one (1) education point. Each semester unit shall equal one

and a half (1.5) education points. College credit may be

counted toward training points or education points, at the

option of the employee. One (1) education point is equivalent

to one (1) training point.

            B. Training. Twenty (20) classroom hours of job-

related training shall equal one (1) training point. Job

related courses including basic, advanced or supervisory, as

well as specialized training related to the employee's

occupation, which have been certified, sponsored, or presented

by the Washington State Training Commission shall be approved.

Job related training sponsored by the Clark County Sheriff's

Office shall be approved. Training in other states, military

police training, and other specialized training may, if job

related, receive full or partial approval, at the Sheriff's

discretion. Employees certified by the Sheriff as instructors

may be receive [sic] training points equal to that of a

participant in classes in which they instruct. Credit for

repeated instruction of the same class within a twelve (12)

month period is not eligible for consideration. Otherwise an

employee may receive credit for a specific training activity

only once. Job related training points may be counted as

either education or training points, at the employee's option.

Fitness training does not qualify for training points.

            C. Work Experience. A job related experience acquired

as a sworn law enforcement officer with a Municipal, County,

State or Federal law enforcement agency will be approved. Job

related experience in fields other than that in which the

employee is currently engaged, may receive partial credit.

Such determination of credit shall be within the Sheriff's

discretion. Employees who have been previously employed by

the County in an occupation other than that currently held,

may receive twenty-five percent (25%) of that service with the

County in the former occupation which exceeds two (2) years

after completion of their probationary period. For example,

an employee who has served as a Clark County Custody Officer

for six (6) years prior to becoming a Deputy Sheriff will

receive one (1) year of credit for the time spent as a Custody

Officer plus one year of credit for the twelve (12) month

Deputy probation period.

      8. Eligibility for incentive:

            A. Employees who meet the following qualifications

will be eligible to receive an incentive equal to five percent

(5%) of their straight time hourly wage.

                  i. Employees possessing a Bachelor's Degree with

two (2) or more years of work experience, and who have

completed the Basic Academy.

                  ii. Employees possessing an AA Degree or equivalent

hours plus four (4) or more years of work experience, and

who have completed the Basic Academy.

                  iii. Employees possessing the following combination

of training and education points, plus years of

experience.

__________

Years of                  Combination of

Experience             Training and

                                Education points

        4                      90

        5                      76

        6                      60

        7                      46

8 or more                30

__________

            B. Employees who meet the following qualifications will

be entitled to an incentive equal to ten percent (10%) of

their straight time hourly wage.

                  i. Employees possessing a Master's Degree with

four (4) or more years of work experience and who have

completed the Basic Academy.

                  ii. Employees possessing a Bachelor's Degree with

six (6) or more years of work experience and who have

completed the Basic Academy.

                  iii. Employees possessing an Associate Degree or

equivalent hours, plus seven (7) years of work experience

and who have completed the Basic Academy.

                  iv. Employees possessing the following combination

of training and education points, plus years of

experience.

__________            

Years of                   Combination of

Experience              Training and

                                 Education Points

      8                         120

      9                         90

      10                       80

      11                       70

      12 or more         60

__________

      9. The incentives provided for in this Program do not

compound. An employee may be eligible for either a five percent

(5%) or ten percent (10%) incentive, but not both.

      10. Any dispute concerning the application or interpretation

of this Program shall be filed and processed as a grievance

beginning at Step 2 of the Grievance Procedure.

      11. Any employee receiving incentive pay under this program

who has achieved twenty (20) years of service, shall have, for the

purposes of LEOFF I, said incentive converted to longevity pay.

      12. Any employee receiving incentive pay under any

predecessor to this Program shall continue to receive such pay

until such time as they qualify for an equal or greater incentive

as provided herein.

 

CLARK COUNTY

      12.1 PURPOSE. The purpose of the program is to recognize and

reward career officers for their contributions to the department,

the community and the law enforcement profession. To that end, the

COP [Career Officers Incentive Program] program provides financial

incentives for a variety of accomplishments and achievements.

      12.2 PROGRAM ELEMENTS. The COP program recognizes employees in

four areas: education, service, specialized skills and special

achievement. The department's Career Officer Program is expected

to be accredited by the Commission on Accreditation for Law

Enforcement Inc. The parties agree to reopen negotiations

concerning this program as necessary to continue its accreditation.

      12.3 PARTICIPATION AND ELIGIBILITY

            12.3.1 Participants must have satisfactorily completed

their original probationary period as a Deputy Sheriff to be

eligible for any level of incentive. Participation in the COP

program shall be on a voluntary basis.

            12.3.2 Employees who desire to participate must submit a

written application to the Sheriff's personnel unit no later

than 30 days prior to the beginning of the first calendar

quarter (January, April, July, October) in which they

anticipate qualifying for incentive pay. Eligibility must be

documented annually.

      12.4 PROGRAM STRUCTURE

            12.4.1 The program allows employees to qualify for

incentive pay based on earning incentive points, earnable in

a variety of ways. Points shall be awarded based on levels of

qualification in each of the program elements according to the

following table:

__________

Points      Education        Longevity      Skills Inventory

      2         AS/AA             10 years        1 certification

      4         BA/BS             15 years        2 certifications

      6         MA/MS          20 years        3 certifications

__________

            12.4.2 Total points are based on the level attained in each

of the three program elements. For example, an employee with

a BA degree, ten years of service and two certifications would

receive ten points (4 + 2 + 4)

      12.5 TITLES AND INCENTIVE COMPENSATION

            12.5.1 The COP program provides for three levels of

incentive compensation. The following table describes the

levels, "working" job titles, points required for each level

and incentive amounts for each eligible classification:

__________

LEVEL     Working Title                               Points              Deputy            Sergeant

Level 3      Master Deputy/Sergeant            10                    $300                $350

Level 2      Senior Deputy/Sergeant              6                      $200                $250

Level 1      Corporal/Sergeant II                   4                      $100                $150

__________

            12.5.2 In addition to the financial recognition, the

department shall develop and issue uniform insignia reflecting

each incentive rank. Input from the labor relations team

shall be solicited prior to finalizing the insignia.

      12.6 EDUCATION. Employees may qualify for the points indicated by

satisfactorily completing an educational program with a job-related

major from an accredited college or university. Job related majors

include criminal justice, law and pre-law, public administration,

sociology, psychology or other related fields as determined by the

Sheriff. At the AS/AA level job relatedness is not required. Non

job-related degrees will be awarded 3 points at the BA/BS level and

five points at the MA/MS level.

      12.7 LONGEVITY. Longevity will be based on all service in a

regular position with the Sheriff's Office.

      12.8 SPECIAL SKILLS INVENTORY

            12.8.1 Employees may qualify for up to six additional

points through certification of skills and proficiency in any

of the specialty areas in this section. Certification shall

be based on completion of one year or more of service in the

area, specialized training or demonstrated proficiency. Each

assignment shall be worth one point. Assignments qualifying

are:

__________

      Detectives                          Narcotics

      Crime Analysis                  Gang Unit

      Traffic                                Child Abuse unit

      DARE Unit                        SWAT Team

      Training Unit                      Hostage Negotiator

      Internal Affairs                  Background Investigator

      Evidence Technician         Marine Patrol

      Community Relations        K-9 Officer

      Unit

__________

      12.10 SPECIAL ACHIEVEMENT

            12.10.1 Up to twelve (12) of the eligible bargaining unit

employees may be granted additional incentive compensation by

the Sheriff for special merit or achievement. Factors for

consideration shall include distinguished job performance,

embodiment of community policing ideals and techniques, or

other appropriate measures of contribution to the community,

department and law enforcement profession. Special

achievement awards shall be in addition to incentive

compensation achieved through the core program.

            12.102. Special achievement recipients shall be awarded an

annual bonus of $800. Awards shall be based on the prior

calendar year of service. Criteria for selection and

selection of employees shall be at the discretion of the

Sheriff.

      12.11 PROGRAM ADMINISTRATION. The Sheriff's Office personnel

Division shall administer the COP program. Employees are

responsible for maintaining and documenting qualifications for

incentives under this program with the assistance of the immediate

supervisor and personnel Division.

 

STIPULATIONS OF FACT

      During the course of the hearing, the parties entered into two

stipulations of fact:

      1. That the existing incentive plan, as set forth in

Article 12 of the Collective Bargaining Agreement, will continue in

effect from July 1, 1993, through September 1, 1993, pending the

Arbitrator's decision on which proposal should be incorporated into

the Agreement.

      2. That the Arbitrator's fees and expenses incurred in this

proceeding shall be shared equally between the parties.

 

SUMMARY OF FACTS

      The facts of this arbitration are simple and not in dispute.

During negotiations for their current Labor Agreement which runs

from January 1, 1992, to December 31, 1994, the parties could not

agree on the terms of an incentive plan. In an attempt to move

ahead with implementation of a new agreement, the parties separated

the issue of the incentive plan from the balance of the Labor

Agreement. The parties set forth in Article 12 of their new Labor

Agreement a settlement agreement which provides for creation of a

new incentive plan.

      The joint committee created to draft a new incentive plan

could not reach agreement on the plan's terms. Therefore, as

provided in the settlement agreement, the parties submitted the

matter for arbitration on a last-best-offer basis.

      The settlement agreement at Section 12.3.3 of the Labor

Agreement provides that,

__________

      The arbitrator's decision must be made within the

confines of this article and the arbitrator shall have no

authority to grant incentive compensation beyond a limit

of 10% over base compensation. The Arbitrator's opinion

shall be effective July 1, 1993.

__________

The parties agreed to delay the effective date of the incentive

plan to September 1, 1993, after it became apparent that the

parties could not present all of their evidence on June 9, 1993,

and would have to continue the arbitration hearing on July 6, 1993.

      The terms of the two plans submitted by the parties have been

set out above. The County's proposal revises the current incentive

plan completely, while the Guild's proposal is basically a

continuation of the incentive plan which has been negotiated by the

parties over the years. Both plans seek to provide incentive for

Guild members to improve their skills and performance.

      The County plan provides financial compensation based on a

matrix plan which recognizes and rewards education, longevity with

the department and skills in a number of specialty areas. The

County plan proposes three levels of incentive compensation payable

monthly. For deputies, the levels would be $100, $200 and $300.

For sergeants, the levels would be $150, $250 and $350. The County

also proposes up to 12 Special Achievement Awards of $800 each to

be awarded at the discretion of the County Sheriff. The County

would also devise uniform insignias for three levels of achievement

known as Corporal, Senior Deputy and Master Deputy.

      The Guild plan encourages and rewards education experience and

training and it differs in several ways from the County proposal.

First, the Guild proposal recognizes and gives compensation for all

education credits, not just educational degrees. Second, in a

departure from the prior incentive plan, the Guild also proposes to

delete the requirement that education be job-related before it is

eligible for incentive pay. Third, the County proposal rewards

training on a broad basis. The County plan recognizes certain

skills for which an employee would receive a certification after

"one year or more of service in the area specialized training or

demonstrated proficiency." (County Proposal, Section 12.8.1.)

Fourth, the Guild proposal rewards experience, not longevity with

the Sheriff's Department. The Guild plan calls for incentive pay

for all job-related work experience. Finally, incentive pay under

the Guild plan is a percentage of the employee's base salary.

      Both parties argue that their proposals best promote community

policing which the Sheriff seeks to implement in Clark County.

      The two plans both seek to encourage and reward skills,

knowledge and ability, but they take different approaches to gain

that end. The Arbitrator's responsibility is to select the

incentive which best serves the interests of the parties and the

community based on the evidence introduced during the two days of

hearing.

 

CONTENTIONS OF THE PARTIES

The Union

      The Union contends that its incentive plan proposal should be

adopted for the following reasons:

      1. The plan is substantially similar to the current plan

which has worked well. Sixty percent of Guild members participate

in the plan and have changed their behavior to meet the

requirements of the current plan. Throughout negotiations, the

Guild maintained that the new plan would have to contain some form

of grandfathering. "The Guild would not abandon the current

incentive plan unless those individuals who qualify thereunder were

protected." (Union Post-Hearing Brief, page 30.) The settlement

agreement does not prohibit the Guild from proposing a plan

basically the same as the current plan. The current plan on which

the Guild's proposal is based has been proven to work to benefit

the Employer and make better deputy sheriffs. Id. There is no

reason to fix what is not broken.

      2. The real reason the County is proposing to drastically

change the current incentive program is to save money. The flat

rate incentive pay suggested by the County, instead of a percentage

of salary incentive pay, will over time result in less money for

plan participants. Further, 58 out of 71 deputies currently

receiving the incentive pay would receive a reduction in their pay

under the County's plan. The Guild presented evidence that the

County would save approximately $115,000 per year if the County

proposal is implemented. Further, the comparable information

offered by the County into evidence is unreliable. In fact,

comparisons show that Clark County is still behind comparable

counties in average adjusted wages.

      3. Several aspects of the County proposal make it more

difficult to qualify for the incentive plan and are unfair. The

County would change the prior plan by allowing credit or points

only for advanced degrees. This requirement ignores the

incremental value of education. It also encourages employees to

seek two-year rather than four-year degrees. The County also

proposes that instead of giving points or credits for training, it

will award certification in special skill areas. However, only

certain special skills will be awarded certification, and in order

to receive certification, an employee must be assigned to a special

skill area for at least one year. The evidence is clear that

generally the County has given employees special assignments for

less than a year. Thus, under the County's proposal, the employees

would receive no credit for this prior experience. Finally, the

County's proposal emphasizes longevity in the Sheriff's office and

ignores prior job-related experience. The Guild believes that the

department benefits from experienced employees just as much as from

employees who have worked in the Sheriff's department for a long

period of time.

      4. The Guild disputes the County's argument that its

proposal is the only one which promotes community policing. The

Guild presented evidence in the form of testimony from deputies

that the County's plan would encourage employees to seek special

assignment after special assignment rather than working as road

deputies. This is the exact opposite of what the County purports

its plan will do. The Guild admits its plan is neutral in

community policing, but at least it does not encourage deputies to

leave the road.

      5. Finally, there are at least two specific problems which

are contained in the County's proposal as written. The first

concerns employees covered by the LEOFF I retirement plan.

Officers employed prior to October 1, 1977, are covered by LEOFF I

and those hired after that date are covered by LEOFF II. The only

difference between LEOFF I and LEOFF II germane to the incentive

plan is that under LEOFF I, the definition of "final average

salary" does not include incentive pay, while under LEOFF II, it

does. To remedy this inequity, the parties agreed in the prior

incentive plan to convert incentive pay to longevity pay upon

reaching 20 years of service. Thus, LEOFF I employees would

receive credit for longevity for the purpose of calculating

retirement benefits. The County's plan does not provide for the

conversion of incentive pay into longevity pay after 20 years of

service for LEOFF I employees. Therefore, under the County's

proposal, LEOFF I officers would receive reduced retirement pay

because their incentive pay would not be converted to longevity and

counted as part of their final average salary.

      The other problem with the County's plan is in its

implementation. As written, the County's plan became effective on

September 1, 1993, but no employee could be eligible to receive

incentive pay until October 1, 1993. This results in a 30-day gap

during which Guild members would receive no incentive pay at all.

Such a gap unjustly penalizes employees.

      Both of these problems could have been corrected by more

careful drafting by the County. However, the County presented its

last best offer to the Arbitrator as written. The Arbitrator has

no authority to rewrite either party's proposal. The County's

proposal is flawed and should be rejected by the Arbitrator.

      For all of the above reasons, the Guild asks the Arbitrator to

accept and order implementation of the Guild's incentive program

proposal.

 

The County

      The County contends that its career officers' incentive

program should be adopted by the Arbitrator for the following

reasons:

      1. The parties spent a great deal of time trying to

negotiate a revised incentive plan. They could not. However, they

were able to negotiate a settlement agreement whereby they would

continue to try to draft an incentive program or submit the issue

to an arbitrator on a last-best-offer basis. The agreement as

written into the current contract provides the parties will develop

a "new" incentive program to "replace the former program." The

plan proposed by the Guild is simply a continuation of the prior

plan. It is not new and does not conform to the agreement reached

by the parties concerning the incentive plan. The parties agree to

devise a "new" plan, one that would further community policing.

The Guild's plan ignores the parties' settlement agreement and

should be rejected by the Arbitrator on that basis.

      2. The settlement agreement reached by the parties

specifically required the new program to be designed to further

community policing goals and philosophy. The County's proposal

does just that. The Guild's proposal contains no provisions to

encourage community policing. It maintains the status quo which is

exactly what Sheriff Garry Lucas campaigned against when he was

elected Sheriff in 1991. The incentive plan is one of the few

aspects of the Sheriff's Department that has not been changed since

Sheriff Lucas's election. It needs to be changed now, and the

County's plan will do so while encouraging community policing by

providing incentives for deputies to become generalists rather than

specialists. The County's plan does what the parties agreed the

new incentive plan should do.

      3. The incentive program is a part of the overall

compensation plan negotiated by the parties. During the most

recent contract negotiations, the County bargained with one purpose

in mind: to grant a substantial base pay increase in return for a

new incentive plan. The base pay increase was incorporated in the

new contract and the County expects a new incentive program to be

implemented as well.

      The County's incentive program proposal will result in an

approximately one percent decrease in the cost of incentive

compensation to bargaining unit employees. This decrease is more

than covered by the base pay rate increase. Each Deputy Sheriff

will receive an increase in overall compensation even with adoption

of the County proposal. The new incentive plan must be viewed in

the context of the overall contract negotiations and the overall

compensation package.

      4. The County's proposal is supported by comparable counties

and the CPI. The County's comparisons show that by mid-1994, Clark

County deputies will receive a top step base pay of $3,339 per

month as compared to the comparable average of $3,270 per month.

Also, the County's proposed incentive plan compares well with such

programs in comparable jurisdictions. When analyzed as a

percentage of base pay, the County's incentive pay proposal

provides a higher percentage at almost every level. The County

recognizes that its proposed plan will pay slightly less than that

current plan, but the new plan will still pay substantially more

than the comparables. Further, the total compensation package

awarded by employees in the new contract including the County's

proposed incentive plan far exceeds the increase in the CPI and the

cost of living increase.

      5. The current plan and the plan proposed by the Guild are

wage supplements, not incentive plans. The current plan does not,

and the Guild's plan will not, encourage completion of an

employee's education by obtaining a degree. Under the proposal by

the Guild, it is too easy to qualify for incentive pay and the

payments are too high. Because of the changes in the policies and

goals of the department under Sheriff Lucas, the incentive plan now

rewards the wrong things.

      6. The technical problem cited by the Guild with respect to

the County's proposal is without merit. The County provided no

"grandfathering" provisions because to do so would essentially

undercut the incentive element of the new proposal. Even without

grandfathering, all deputies will be receiving a substantial

increase in their overall wage package during the term of this

contract.

      The flat dollar incentive pay is reasonable. Flat dollar

rates are used in many public safety departments and encourage

periodic renegotiation of the incentive plan itself. The $300 top-

level incentive pay under the County's proposal would have no

effect on the top-step incentive pay received this year and only a

minimal effect next year.

      The fact that employees under LEOFF I were unintentionally not

mentioned in the new proposal should not be fatal to the plan.

Steven Foster, Clark County Human Resources Manager, testified for

the County that he did not intend to change the current practice of

converting incentive pay to longevity for the purpose of

calculating retirement pay. However, even if the practice were not

continued, under the County's plan as proposed, employees with 20

years of service will still receive 60 percent of their incentive

solely for longevity. Therefore, a retiring employee would not

have his or her retirement pay reduced to the extent cited by the

Guild. Further, no deputies have indicated their intention to

retire within the next year, so there is no evidence that anyone

would be prejudiced by the plan as it is now written.

      Finally, the Guild's argument that there will be a gap during

which deputies will not receive incentive pay is inaccurate. The

Arbitrator's award will be effective September 1, 1993, but will be

implemented October 1, 1993. Article 12 of the Contract provides

that employees will continue receiving incentive pay under the old

program until "the effective date of implementation of a new

program." Therefore, deputies will be able to apply for the new

program 30 days before the beginning of the new quarter (October 1,

1993). As required by the County's proposal, the deputies will

continue receiving incentive pay under the old program until

implementation of the new program.

      For the above reasons, the County requests that the Arbitrator

adopt its proposed incentive program.

 

OPINION

      The last-best-offer incentive plans proposed by both parties

have certain advantages and disadvantages. The main differences

between the proposals reflect the change in philosophy as to the

direction the Sheriff's Office should be moving in performing its

responsibilities to the citizens of Clark County. The evidence

established that the current Sheriff, Garry Lucas, ran for election

on a platform of change with community policing as his goal.

Sheriff Lucas was elected by a large majority and since taking

office in 1990 has made policy and operation changes designed to

implement community policing. He intends to make "generalists"

rather than "specialists" out of his deputies and believes the

County's proposed incentive plan will assist in accomplishing that

goal. As "generalists," deputies possessing a wide range of

experience and background will be available to provide services to

the community as a whole. Currently deputies serve as

"specialists" in certain areas such as road patrol, homicide

investigators, detectives, etc., and are available to the public

only in their specific areas of responsibility. Accordingly, the

County's proposal changes the prior incentive program in almost

every aspect.

      The Union's proposal is essentially a continuation of the

incentive program negotiated by the parties in prior agreements.

The parties made it clear in their Agreement at Article 12 of the

current Contract that the Arbitrator has no authority to modify

either of the last best offers submitted to him. He must take them

as they are and choose between them.

      After careful evaluation of each proposal and on the basis of

the evidence presented at the hearing, the Arbitrator concludes

that the Guild's proposal should be incorporated into the new

Agreement. The basic reasons for this decision are as follows:

      1. The County failed to present persuasive reasons and

evidence to establish a basis for the substantial changes

proposed in its plan.

      2. The evidence showed that incremental education is

valuable to job performance and should be rewarded.

      3. The County's plan makes rewarding experience difficult.

      4. Problems are inherent in the administration of the

County's proposal.

      5. The evidence is divided on whether the County's plan

would in fact further community policing.

      Before proceeding to discuss these points in greater detail,

the Arbitrator must first address the implications of the

settlement agreement reached by the parties and set forth in

Article 12 of the current Contract on this decision.

      The Arbitrator is well aware that his decision appears to

overlook one of the County's most important arguments; i.e., that

the Union agreed to a "new" incentive plan "to replace the former

plan." Instead, the Union offered simply a continuation of the old

plan with some minor changes. Additionally, the Union agreed to

design a "new" plan which furthered community policing, but failed

to significantly address the community policing issue in its

revision of the old incentive plan.

      The Arbitrator did not ignore the County's argument that the

Union's proposal violates the agreement between the parties as to

the next incentive plan. He considered it carefully but could not

in good conscience base his decision in this matter solely on the

fact that the Union's proposal was not "new." The Arbitrator

considered the crux of the issue before him to be which of the two

plans submitted is the better plan in terms of content and

fairness, not which plan conforms best to the parameters laid out

in Article 12. The Arbitrator found several problems with the

content of the County's plan and determined that these problems

outweighed the fact that the Union had essentially made minor

modifications to the old incentive plan at its last best offer.

The settlement agreement contained in Section 12.6.3 of the

Agreement, as well as the issue stipulated to by the parties,

requires that the Arbitrator decide which of the two plans best

serves the interests of the parties, without qualification. Given

these constraints, the Arbitrator does not have the latitude to

reject a proposal on the basis that it is not a "new" plan or that

it does not adequately further the Department's community policing

goals. These are subjective determinations which do not outweigh

the basic requirement in selecting which of the last best offers

should be adopted. The County has strenuously argued in its post-

hearing brief that the Union's proposal should be summarily

rejected because it was not a "new" program as contemplated by the

settlement agreement. I disagree. It does not benefit the parties

to reject what the Arbitrator considers to be the better of the two

proposals solely on the basis that one was not "new." The issue of

whether the Union's incentive proposal is a "new" or simply the

"old" program with minor modifications, was not the issue submitted

for determination. This decision was based on the substantive

content of the proposals, not on whether the proposals were either

new or old.

      In its brief entitled County Position on Guild Proposal, the

County specifically requests the Arbitrator to address the issue of

his authority to recommend the Union's proposal in view of its

"grandfather clause" which continues all the old incentive pay

levels plus whatever additional pay is provided for by the Union's

liberalization of educational and training requirements. This

section is intended to respond to the County's request and explain

the Arbitrator's thought process. Below, the Arbitrator will

explain in more detail why he found the County's plan

objectionable.

1.   The County Failed to Present Persuasive Reasons and

Evidence to Establish a Basis for the Substantial Changes

Proposed in Its Plan.

      There are several factors which favor the Union's proposal

over the County's. First, it has been in place for many years and

has been developed through the negotiations of the parties. The

current program developed in its present form over the past 20

years. The parties adopted an incentive program initially in 1973,

and through negotiations, it reached its present form in 1980. The

program has continued essentially in its present form since that

time. Obviously, sheriff's deputies have relied on the program

over a long period of time.

__________

      Arbitrators may require "persuasive reason for the

elimination of a clause which has been in past written

agreements.

Elkouri and Elkouri,

How Arbitration Works,

page 843 (4th Ed. 1985).

__________

      Second, the Union's proposal has been successful in

encouraging deputies to participate in education and training

programs to improve their skills, knowledge and ability. Sixty

percent, or 71 out of 114 of the deputies in the Sheriff's office,

are currently participating in the incentive plan. The evidence

established that 25 or more deputies have returned to college in

order to qualify for the incentive program.

      To support its position that the incentive plan needs a major

revision, the County presented evidence that it negotiated a base

wage increase during the most recent contract negotiations with the

understanding that the incentive program would be revised to make

it harder to qualify for incentive pay. The County admits its base

wage was low when compared to other counties. It also contends its

incentive program is easier to qualify for and has a more generous

pay rate than comparable counties.

      The Union counters by questioning the data on comparables

supplied by the County. The Union insists the County's figures are

skewed because for the comparable Oregon jurisdictions, the County

did not include retirement pickup as part of the top salary base.

      In the final analysis, the Arbitrator concludes that the

deputies have already invested too much in the current incentive

program to make a major programmatic change as proposed by the

County. Further, the evidence simply did not convince the

Arbitrator of the need for such a change.

2.   The Evidence Showed the Incremental Education Is Valuable

to Job Performance and Should Be Rewarded.

      In order to obtain points for education under the County's

plan, employees must satisfactorily complete "an educational

program with a job-related major from an accredited college or

university." The current program and the Union's proposal both

give points for class credits, not just degrees. The Union's

proposal rewards advanced education whether or not it leads to a

degree.

      The Union submitted numerous law enforcement articles

supporting the proposition that there is a direct correlation

between advanced education and job performance. This correlation

cannot be denied. The County argues in its post-hearing brief that

the articles also conclude that officers with college degrees

perform better than those who do not. Having reviewed the

articles, the Arbitrator views the articles as supporting both

parties' positions. College education helps performance and that

is true whether or not a degree is earned. Also, according to the

articles, police officers with degrees perform better than those

who do not have degrees.

      The problem the Arbitrator has with the County's proposal is

that it ignores incremental education which the evidence clearly

shows does, in fact, improve job performance. Additionally, by

requiring a degree, the County's proposal denies education points

to those officers who have previously returned to college

specifically to qualify for the current incentive plan. Those

officers relied on the current plan, and to now have the plan

change so that they will receive no education points appears to the

Arbitrator to be unfair.

      The Arbitrator recognizes the movement to require law

enforcement officers to have college degrees as discussed in the

various articles in evidence. However, the Arbitrator believes the

County could encourage this result by granting more points for

college degrees than credit hours, but still granting some points

for credit hours. The plan proposed by the County simply seems too

harsh on those deputies who have relied on the current plan and now

face losing all the reward promised for their time and commitment

in furthering their education.

      The Arbitrator cannot ignore the numerous studies which

establish that incremental education does improve job performance.

The County is to be commended for wanting to employ the best

officers possible, but the education component of its plan appears

overzealous to this Arbitrator. Surely the County's main goal is

to improve the performance of its employees. It can do this by

rewarding both incremental education and degrees. To now ignore

the value of incremental education would prove discouraging to

officers who have consistently relied on the current incentive

program. Deputy Steven Shea confirmed this. Deputy Shea is three

credits short of obtaining a Bachelor's Degree. He currently

receives incentive pay of 10 percent of his base salary. Under the

County's plan, he would not receive any points for his education

credits and he would not qualify for incentive pay, thus, reducing

his salary by 10 percent. The Arbitrator understands the desire on

the part of the Sheriff's Office to "incent" Officer Shea and

others to complete their degree, but finds the County's proposal

for doing so too extreme.

      The Arbitrator may agree with the County that the current plan

makes it too easy to qualify for the incentive program, but the

County negotiated this plan and has had it in place for over 12

years. The deputies have every right to rely on the plan. That

does not mean the plan can never be modified; however, the

Arbitrator in evaluating the effect of implementing the Union's

plan as opposed to implementing the County's plan, finds that the

deputies have too much already invested in the current plan to make

the major changes proposed by the County acceptable. If major

changes are to be made to the current plan, they should be achieved

through the bargaining process, rather than at the hand of the

Arbitrator. The Arbitrator is not convinced that the changes in

educational requirements for the incentive program proposed by the

County will have enough positive effect on the Sheriff's Office to

outweigh the unfavorable effects.

      3.   The County's Plan Makes Rewarding Experience Difficult.

      A fundamental difference in the two proposals is that the

Union's plan rewards experience while the County's plan rewards

longevity. The County argues that its Skills Inventory rewards

experience. The Union points out two problems with the Skills

Inventory. First, certain skills are not on the list and would not

be eligible for certification. Thus, certain skills and experience

would be ignored in granting points toward the incentive plan.

Second, the County's proposal requires one year of specialized

service in each of the skills areas; whereas, in the past, the

County has granted special assignments only for less than one year.

Therefore, under the County's proposal, many deputies who have had

special assignments and gained experience in the skills areas

identified would not qualify for points toward the incentive

program.

      The Arbitrator must agree with the Union that these two

factors make the County's proposal less attractive. The County

admits in its post-hearing brief at page 24, footnote 17, that a

few additional specialties may need to be added to the list. The

Arbitrator has no authority to add the specialties. If the

County's proposal were to be adopted, the parties themselves might

agree to add certain specialties or they might not. The Arbitrator

has difficulty in ordering adoption of a plan which both parties

agree needs modifying when no means of modification have been

provided other than to wait until the next round of negotiations.

      The one-year requirement for special assignments does appear

to the Arbitrator to make it difficult for deputies to apply their

past experience toward the County's proposed incentive plan. The

County assures the Arbitrator and the Union that many deputies will

qualify for certification without additional assignments, but

offered no hard evidence to support this representation. Once

again, the County proposal seems to completely undercut the

requirements of the current incentive plan relied upon by the

deputies. The Arbitrator would emphasize that this opinion should

not be read to endorse the continuation of the present program in

perpetuity. Change is often good and necessary. The Arbitrator

believes change can be brought about in the incentive plan so that

the program is more acceptable to the County, but that change

should not so dramatically eliminate the officers' past efforts in

complying with the current plan.

      Finally, with respect to the issue of longevity versus

experience, the Arbitrator finds Section 12.4 of the County's

proposal does not provide an incentive for officers to improve

their skills, ability, and knowledge. In order to receive

incentive points under this section, an employee must have served

in the department a minimum of ten years, regardless of in which

department the employee has served. As pointed out in Deputy Erin

Allen's letter commenting on the County's proposal, "longevity is

an area that some feel should be rewarded, but is merely being

employed for a period of time an 'incentive' if you will, to do

anything other than show up, it doesn't really seem so."

      The County's proposal will award points for longevity

regardless of whether the employee was working in the Sheriff's

Office as a clerk or as a deputy. The example given by the Union

opposing the County's emphasis on longevity is persuasive. Deputy

John Armstrong, a road deputy with ten years experience in

Washington County, Oregon, testified that he would receive no

points for longevity if he came to Clark County under the County's

proposal although he brings ten years of experience to the

department. The Union argues that Deputy Armstrong's experience as

a road deputy is worth more to the department than his hypothetical

experience as a records clerk or custody officer, yet had he worked

in the Sheriff's Office as a clerk or custody officer, he would

receive longevity points. However, because he did not work for the

Clark County Sheriff but for the Washington County Sheriff, he

would receive no longevity points. The Union contends that its

proposal is superior because it rewards experience regardless of

where that experience was obtained. In the Union's view,

experience benefits the department more than simple departmental

longevity.

      It is the opinion of the Arbitrator that departmental

longevity has a place in an incentive plan. However, the

Arbitrator views the County's proposal as inadequate because its

provisions for rewarding experience are flawed. Categories of

skills have been omitted from the Special Skills Inventory.

Experience must be gained for the most part prospectively under the

County's plan. Thus, prior experience may not count toward the

proposed incentive plan due to technicalities such as the length of

the special assignment. The County plan emphasizes longevity in a

broad and unrestricted provision. Their plan makes it much easier

to gain points for longevity than for experience and skills. The

Arbitrator considers this a serious deficiency in the County's

proposal.

      4.   Problems Which Are Inherent in the Administration of the

County Proposal.

      There are, in the opinion of the Arbitrator, two additional

reasons which mitigate against the County's proposal which relate

to the administration of the County's proposal. They relate to the

lack of coverage under the LEOFF I Retirement Plan and the Special

Achievement Award.

      The absence of a provision covering deputies under the LEOFF I

Retirement Plan and the proposed Special Achievement Award make it

difficult for the Arbitrator to endorse the County's proposal.

            a. LEOFF I Retirement Plan

      The Arbitrator is convinced that the County did not

intentionally neglect to continue protection of deputies covered

under LEOFF I. However, the County admits that its proposal does

not contain a provision which converts incentive pay to longevity

after 20 years of service. Thus, that pay may not be figured into

the employee's final average salary and will result in a reduction

of retirement pay. Steven Foster, Director of Human Resources,

testified he did not intend to change the past practice, but the

fact is that that practice is not continued under the County's

proposal, and neither the Arbitrator nor the County has the

authority to add such a provision at this time. While it is

possible that no deputy covered by LEOFF I may choose to retire

within the term of this Contract, the Arbitrator is uncomfortable

leaving the absent provision up for negotiation in the next round

of collective bargaining. The provision should be contained in the

County's proposed plan. If this were the only problem the

Arbitrator found with the County's proposal, it would not be fatal

to the proposal. However, it is one of several concerns, and, in

the Arbitrator's opinion, when they are taken together, they are

too great to overcome.

            b. Special Achievement Awards

      The Arbitrator finds the Special Achievement Award provisions

of the County's proposal well intended but difficult to administer

in view of the conflict that would naturally result from who would

and who would not receive the award. In the Arbitrator's view, the

award lends itself to the criticism, fairly or unfairly leveled,

that the Sheriff was playing favorites. There is simply no way to

avoid this criticism when the award is left to the sole discretion

of the Sheriff. Despite arguments to the contrary in the County's

post-hearing brief, the Arbitrator finds the standards for making

the award broad and subjective. Many of these same concerns were

raised in Deputy Erin Allen's comments regarding the County's

proposal. The pay-for-performance concept has merit and Special

Achievement Awards may be appropriate in certain circumstances.

However, the Arbitrator considers the criteria for the award

proposed by the County not specific enough, leaving the Sheriff

with too much discretion. This has the potential of disrupting the

working relationships between the Sheriff and the deputies and

among the deputies themselves.

      The Union's plan continues protection for deputies under

LEOFF I, but does not contain a Special Achievement Award

provision. In both particulars, the Arbitrator considers the Union

plan preferable.

5.   Evidence Is Divided on Whether the County's Program

Would, in Fact, Further Community Policing.

      It was apparent throughout the hearing that the primary

motivation driving the County's proposal was the furtherance of the

community-oriented policing goals of the Department. Sheriff Lucas

campaigned, and was ultimately elected, on the strength of his

promise to make the Sheriff's Department more responsive to the

needs of the community by invoking a community-oriented policing

policy in his Department. One of the four major components of the

policy was the decentralization of operations, with specific

reference to the patrol officers.

      The County contends that its incentive program is an important

factor in transforming the Sheriff's Department to a policing

policy which is community oriented. Sheriff Garry Lucas testified

that the cornerstone of community policing is the patrol officer.

His intent is to provide the community with generalist officers,

not specialists, who can form partnerships with the citizens to

solve community problems. The Sheriff and the County want to

encourage deputies to accept special assignments to broaden the

base of their knowledge and experience and then return to the

street as road deputies. Special assignments will earn deputies

points toward qualifying for the incentive program, but not premium

pay. According to the County, deputies will want to return to the

road because deputies would receive a 5.28 percent supplement to

their pay over and above other employees in the department.

      The Union argues that the County's plan does not encourage

community policing because it does not provide incentives for road

deputies or community involvement. Deputy Kevin Harper testified

that in his opinion, the County's plan encouraged him to leave road

duty for special assignment. The plan contained nothing to

encourage him to return to the road.

      The Union contends that its plan is neutral as far as

community policing goes. It has no specific community policing

provisions, but it does not encourage good road deputies to leave

the road in order to obtain certification for special assignments.

Instead, those deputies can use their education, experience, and

training to qualify for the Union's incentive program.

      The provisions of the County's plan do not convince the

Arbitrator that the plan will in fact further community policing.

Specifically, the Arbitrator is not convinced that once a road

deputy goes on several special assignments, he will return to the

road. The Union's evidence casts doubt on that prospect.

      The County's plan may work, as envisioned by the County, to

encourage the "generalist" road deputy, but it may not. The

evidence is not persuasive on this point. The Arbitrator does not

consider the County's arguments and evidence that its plan fosters

community policing to be a deciding factor in this matter.

      The Arbitrator does appreciate the difficulty of Sheriff

Lucas's task in changing the orientation of the Sheriff's

Department to a community-oriented policing philosophy. This

decision is not meant to make that task more difficult. However,

the Arbitrator does believe the task might be better approached

through administrative policy rather than a contractually

established incentive program.

 

CONCLUSION

      The Arbitrator in drafting this opinion experienced the

constant frustration of recognizing that there were clear

advantages and disadvantages with both plans. However, the parties

have restricted the Arbitrator's decision-making authority by

requiring that he select, in total, either the County's or the

Union's proposal.

      The Arbitrator decided to adopt the Union's incentive program

proposal because he found several technical as well as substantive

problems with the County's plan. The Arbitrator did not base his

decision on the terms of the settlement agreement or on monetary

factors. Looking at the terms of each proposal, he simply found

the Union's plan the most workable and the fairest. Therefore, it

shall be the order of the Arbitrator that the parties shall adopt

the Union's proposed incentive program.

 

IN THE MATTER OF THE ARBITRATION

BETWEEN

CLARK COUNTY SHERIFFS' GUILD,                             )           ORDER

Union,                                                                                      )

                                                                                                 )                       Re:      INCENTIVE PLAN

and                                                                                           )                       FOR 1992-94 CONTRACT

                                                                                                 )

CLARK COUNTY SHERIFF'S DEPARTMENT,              )

Employer.                                                                                )

 

      The Arbitrator, in arriving at this decision, has reviewed all

of the evidence, exhibits, and recorded testimony of the hearing,

as well as the arguments of the parties as set forth in the post-

hearing briefs. In view of all the evidence and for reasons set

forth in this Opinion, the Arbitrator Orders that:

 

The parties shall adopt the Guild's proposed incentive

plan as a part of their 1992-94 Collective Bargaining

Agreement.

 

/s/

Eric B. Lindauer

Arbitrator

 

August 17, 1993

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