And
Interested
Arbitration
Arbitrator: Eric B. Lindauer
Date
Issued:
Arbitrator: Lindauer; Eric B.
Case #: 10054-I-92-00216
Employer:
Date Issued:
IN THE MATTER OF THE
ARBITRATION
BETWEEN
) Re: INCENTIVE PLAN
and ) FOR
1992-94 CONTRACT
)
Employer. )
BEFORE
ERIC B. LINDAUER
ARBITRATOR
REPRESENTATION
FOR THE
Daryl S. Garrettson Otto
B. Klein
Hoag Vick Tarantino & Garrettson Attorney
at Law
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.
the
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
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
1993, at the
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
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
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
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
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
and
the Guild's Executive Board, the program shall be
implemented
effective
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
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
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
1. The following proposed Incentive Program is to be
effective
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
members
of the
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
Job related training sponsored
by the
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
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
ii. Employees possessing an AA Degree or equivalent
hours
plus four (4) or more years of work experience, and
who
have completed the
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
ii. Employees possessing a Bachelor's Degree with
six
(6) or more years of work experience and who have
completed
the
iii. Employees possessing an Associate Degree or
equivalent
hours, plus seven (7) years of work experience
and
who have completed the
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.
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
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
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
__________
The parties agreed to delay
the effective date of the incentive
plan
to
parties
could not present all of their evidence on
and
would have to continue the arbitration hearing on
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
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." (
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
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
The
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.
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
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
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
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,
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
implemented
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
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
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
plan."
Instead, the
plan
with some minor changes. Additionally, the
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
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
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
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
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
"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 specifically requests
the Arbitrator to address the issue of
his
authority to recommend the
"grandfather
clause" which continues all the old incentive pay
levels
plus whatever additional pay is provided for by the
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
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
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
) Re: INCENTIVE
PLAN
and ) FOR
1992-94 CONTRACT
)
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