And
General
Teamsters Local Union No. 231, Sheriff Department Unit
Interest
Arbitration
Arbitrator:
Date
Issued:
Arbitrator:
Snow;
Case #: 06094-I85-00134
Employer:
Date Issued:
IN THE MATTER OF INTEREST ARBITRATION
BETWEEN
GENERAL TEAMSTERS LOCAL
SHERIFF'S DEPARTMENT UNIT
AND
_________________________
ANALYSIS AND AWARD
_________________________
Arbitration Panel:
Marven K. Eggert
Terry A. Unger
TABLE OF CONTENTS
Page
I. INTRODUCTION 1
II. STATEMENT OF THE ISSUES 3
III. BACKGROUND 4
IV. NO AGREEMENT REGARDING COMPARABLE JURISDICTIONS 6
A. Why the
"Comparables" Have Not Been Used 9
B. Why
Comparability Data from
Washington Cities Have Not Been Used 11
C. Why Use
Washington Counties
for Comparison? 12
V. THE
A. Using
Monthly Wages as the Method
of Comparison 15
B. What to Do
About
C. Inability
to Pay 19
VI. THE ISSUE OF PARITY 25
VII. LAW ENFORCEMENT OFFICERS AND FIREFIGHTERS
ACT (LEOFF I AND LEOFF II) 27
AWARD 30
IN THE MATTER OF INTEREST )
ARBITRATION ) ANALYSIS
AND AWARD
)
BETWEEN ) Marven K.
GENERAL TEAMSTERS LOCAL
NO. 231 )
SHERIFF'S DEPARTMENT UNIT ) Carlton J. Snow,
) Neutral
Arbitrator and
AND ) Chairman
of the Panel
)
) Employer
Appointed Arbitrator
I. INTRODUCTION
This matter came for hearing pursuant to RCW 41.56.450.
A hearing occurred on
Whatcom
County Courthouse located in Bellingham, Washington.
The parties presented the
matter to an arbitration panel con-
sisting of Marven K. Eggert, Secretary-treasurer of Teamsters
Local No. 231;
A. Unger, Acting Director of
the Nor-Bell Nursing Home. Mr.
Matthew D. Durham, a partner
in Donworth, Taylor and Company,
represented
Roberts, Reid & Wacker represented Teamsters Local No. 231.
The hearing proceeded in an orderly manner. There was
a
full opportunity for the parties to submit evidence, to
examine
and cross-examine witnesses and to argue the matter.
All witnesses testified under
oath. Ms. Margaret Sturtz
reported
the proceedings for the parties and submitted a
transcript
of 267 pages. The advocates fully and
fairly
represented
their respective parties.
The parties stipulated that the matter properly had been
submitted
to arbitration and that there were no issues of
substantive
or procedural arbitrability to be resolved; and
administrative reguirements have been complied with and statu-
tory criteria followed in rendering this
report. The parties
authorized
the arbitrator to retain jurisdiction of the mat-
ter for sixty days following the issuance of an
award. The
parties
elected to submit post-hearing briefs in the matter,
and
the arbirator officially closed the hearing on August
20
after receipt of the final brief.
RCW 41.56.450 states that, if the parties after a
reasonable period of negotiation and mediation
have been
unable
to resolve their differences, "an interest arbitration
panel
shall be created to resolve the dispute."
"Interest
arbitration"
is a dispute resolution procedure in which one
or
more third party neutrals make a final
and binding deci
sion in order to resolve a dispute between the
parties with
regard
to new terms in a collective bargaining agreement.
The
for
uniformed personnel in the state in an effort to imple
ment "a public policy in the State of
strikes
by uniformed personnel as a means of settling their
labor
disputes." (See, RCW
41.56.430). The statutes has
defined
"uniformed personnel" as "law enforcement officers
as
defined in RCW 41.26.030 and now or hereafter amended, of
cities
with a population of fifteen thousand or more or law
enforcerment officers employed by the
governing body of any
county
of the second class or larger. . . ."
(See, RCW
41.56.030).
Until
of
fifteen thousand or more or in AA counties enjoyed statu-
tory authority to proceed to interest arbitration. RCW
36.13.010 has defined
"second class counties" as those
counties
with a population of 70,000 and less
than 125,000."
The statute has defined
"Class AA" counties as those with a population
of
500,000. With a population of 113,700 or
116,000 (depend-
mg
on which exhibit is used), Whatcom County meets the statu-
tory definition of a second class county." (See, Employer's
Exhibit No. 3 and Union 5
Exhibit No. 8).
II. STATEMENT OF THE ISSUES
RCW 41.56.450 states that:
The issues for determination by the arbitration
panel, shall be limited to the
issues certified
by the Executive Director [of
the Public Employ-
ment
Relations Commission].
On November 13, 1985, Mr.
Marvin L. Schurke, Executive
Director of the Public
Employment Relations Commission,
certified
the following two issues to interest arbitration:
(1) Wages
for 1985 on and after July 1, 1985
(2) Long
term disability insurance. (See,
Joint Exhibit No. 1).
The parties stipulated at the
arbitration hearing that the
arbitration
panel is to determine wages for the period of
July 1, 1985 to December 31,
1985.
III. BACKGROUND
The Employer in this case, Whatcom County, Washington,
and
members of the bargaining unit in the Sheriff's Depart-
ment, as represented by Teamsters Local Union
No. 231, have
been
engaged in a collective bargaining relationship for fif-
teen
or sixteen years. (See,
Transcript, pp. 31 and 224). Since
the
relevant statute became effective only on July 1, 1985,
this
is the first interest arbitration between the parties.
In their bargaining
relationship, the parties attempted to
respond
to a number of unique features in this particular
county.
It encompasses from Puget Sound to the mountains, in-
cludes a port, and is only nineteen miles from the
Canadian
border. That places it within the metropolitan sphere
of
Vancouver, British Columbia,
and there are three border
stations
that funnel traffic through Whatcom County.
Law
enforcement
personnel are compelled to deal with felons flee-
mg
to or escaping from another country as well as criminal
activities
that might arise in the vicinity of a port.
Another unique feature of Whatcom County is the fact that
the
City of Bellingham, Washington, with a population of
46,010 or 46,360 (depending on
the document used) does not
maintain a
jail and relies on Whatcorn County to provide that
service. Additionally, the County is responsible for
funding
the
operation of the jail. As one witness
stated, "We are
the
only county in the State of Washington that is not reim-
bursed by the major city for jail service. Bellingham does
not
pay us for the use of the jail."
(See, Transcript,
p. 173).
Another distinctive feature of Whatcorn
County is its need
to
maintain a Search and Rescue Unit. The
geographical boun-
daries of the county include considerable
mountainous wil-
derness, and it is necessary for law enforcement
personnel to
be
prepared to assist people off Mount Baker, standing at
10,778
feet. (See, Transcript, pp. 23-28).
The parties have made a good faith effort to resolve
their
differences, and they met for ten to fifteen negotiation
sessions, including three occasions with a
mediator. When
mediation
failed to remove all issues from the table, the
parties
proceeded to interest arbitration. The
parties agreed
that the
proceeding would resolve only the two narrow issues
previously
set forth.
Whatcom County employs approximately five hundred full
time
workers, and there are some seventy-nine employes in
the
Sheriff's
Department.
There are thirty-seven members in
this
particular bargaining unit. In 1986, the
budget for the
Sheriff's Department was $2.3
million dollars, excluding
costs
to maintain the jail.
IV. NO AGREEMENT REGARDING COMPARABLE JURISDICTIONS
The parties failed to reach agreement regarding juris-
dictions
with which Whatcorn County ought to be compared. The
Employer limited its
comparisons to eight counties and made
passing
reference to one city. The counties were
Clark,
Yakima,
Kitsap, Thurston, Benton, Cowlitz, Clallam, and Skagit.
The city was Bellingham. The Union, on the other hand, sub-
mitted data from jurisdictions in Washington,
Oregon, and
California,
covering some fifty-three public employers.
There was a balanced mixtures
of cities and counties, and the
Union believed data from
cities to be highly relevant in the
dispute.
Comparability data are of utmost importance in an inter-
est arbitration proceeding. The Washington legislature has
mandated
that arbitration panels resolving disputes involving
uniformed
personnel "shall take into consideration" a number
of
factors. The statute requires that
consideration be given
to:
Comparison of the wages, hours and conditions of
employment of personnel involved
in the proceed-
ings
with the wages, hours, and conditions of
employment of like personnel of
like employers
of similar size on the west
coast of the United
States. (See, RCW 41.56.460(c)).
Not only does the statute require the arbitration panel
to
give
consideration to comparability data but also there has
developed a
strong tradition among arbitrators of
doing so.
It is a tradition which has
its roots in practicality. The
eminent
economist, Thorsten Veblen
has stated that "the pro-
pensity of individuals to compare themselves with
others has
deep
roots in human psychology, and the accepted legitimate
end
of effort becomes the achievement of a favorable com-
parison with others." (See, Veblen, The Theory of the Leisure
Class, p. 24,(1934)).
In recognition of
the powerful influence of equitable
comparisons,
the parties are well served when they are able
to
agree about appropriate points of comparison with simi-
larly situated jurisdictions. Absent such an agreement, it
becomes
the task of the arbitration panel to reach conclu-
sions with regard to appropriate points of
comparison.
Comparisons are of special interest to interest arbi-
trators because comparisons do not focus on
individual
differences. There is an even handedness about them. Long
ago
one observer argued that comparisons "offer a presumptive
test
of the fairness of a wage." (See, Feis, Principles of
Wage Settlement, 1924, p.
339). Comparisons are also prag-
matically attractive because they are readily
understood by
most
people, but that is not to suggest that comparisons are
not
without problems.
There are a number of opposing opposites to be weighed
in
using comparisons. While comparisons
have an aura of
even-handedness,
one must always wonder whether the jobs
being
compared really require approximately the same skill
and
responsibility. It is also useful to
consider whether
conditions
at work are more hazardous in one jurisdiction
than
in another so as to justify differences in the price
of
labor. Questions should also be raised
regarding whether
or
not wages are typically lower or higher in particular
geographical
sections of the country. Arguably, geographi-
cal
wage differentials might not necessarily reflect an
inequitable
wage in one jurisdiction but merely a geographical
difference
in the cost of living. Nor can one lose
track of
the
common sensical fact that employes
working in a large
city
may well have a longer workday than those in a more
rural
setting simply because working in a metropolitan area
may
require more time to be consumed going
to and from work,
and
this fact of a longer "workday" may be reflected in the
wage
paid to employes.
Arbitrators also have a long history of giving greater
weight
to wages paid in the general locality of the employer
and
being less influenced by wages in a distant area. As one
arbitrator
observed:
Prime consideration should be given to
agreements
voluntarily reached in
comparable properties in the
general area. For example, wages and conditions in
Milwaukee, a city of comparable size nearest geographi-
cally
to Minneapolis and St. Paul whose transit company
is neither bankrupt, municipally
owned, nor municipally
supported, might reasonably have
greater weight than
Cleveland or Detroit, both municipally owned and farther
distant, for Omaha and Council
Bluffs, more distant in
miles and smaller in population. Smaller and larger
cities, however, and cities in
other geographical areas
should have secondary
consideration, for they disclose
trends. (See, Twin City Rapid Transit Co., 7 LA 848
(1947)).
Nor can one lose sight of the
great difficulty of establishing
comparability
with respect to job content and fringe benefit
packages.
A. Why the Oregon and California "Comparables"
Have Not Been Used:
The Union has submitted comparability data for ten
California
counties and four Oregon counties. The population
in
those jurisdictions ranged from 91,400 to 249,000 people.
These comparability data have
not been used for a variety of
reasons.
It is recognized that RCW 41.56.460 directs addressed
interest
arbitrators
to compare wages, hours, and conditions
of employ-
ment of "like personnel of like employers
of similar size on
the
west coast of the United States."
The Union, however,
failed
to be persuasive that the jurisdictions with which it
desired
to compare the employer constitute similar employers.
The arbitration panel received
no data that showed a govern-
mental
structure in Oregon or California
similar to the
county
structure in the State of Washington.
There were no
data
submitted to the arbitration panel regarding revenue
sources,
assessed valuation or the socio-economic composition
of
the jurisdictions in Oregon and Washington.
Oregon is
more
rural than much of Washington, and it is common knowledge,
for
example, that Mann County and Santa Cruz County in
Californiause a
different tax structure and have a number of
unique
protective services needs, factors, it is to be
assumed,
that would be reflected in budgetary expenditures.
Mr. Basarab,
Business Representative for Teamsters Local 763,
conceded
that he had not sought such information as a part
of
the data he collected from other jurisdictions.
(See,
Transcript, p. 144).
There also is a different collective bargaining struc-
ture in Oregon and California as compared with
the State of
Washington. Nor was there any showing that the external
jurisdictions
compete for labor with Whatcom County.
Like-
wise,
the arbitration panel received no evidence showing a
similarity
in cost-of-living increases for workers in Oregon
and
California.
Finally, data from jurisdictions outside of Washington
"on
the west coast of the United States" have not received
evidentiary
weight in this proceeding because ambiguity arose
with
regard to whether or not RCW 41.56.460(c) even applies
to
second class counties, at least with regard to comparabil-
ity outside of the state. Mr. John Rabine,
Chief Executive
Officer for Teamsters Local
763, suggested that the statutory
requirement
had been intended to apply only to "larger" pub-
lic employers.
He observed that:
With some of the larger employers that there would be
no other employers to compare
them with if they
weren't, in fact, to include
other western states.
(See, Transcript, p. 96).
The combination of all these
factors has made it reasonable
in
this particular proceeding not to give weight to the com-
parability data from Oregon and California
jurisdictions.
B. Why Comparability Data from Washington Cities
Have Not Been Used:
The Union submitted data from twenty-nine cities in
Washington and argued that
those jurisdictions are comparable
with
Whatcom County. The population in those
cities ranged
from
16,020 to 490,300. It is reasonable,
based on evidence
submitted
by the parties, not to use these Washington cities
as a
point of comparison in this particular proceeding.
There was unrebutted evidence
that cities in Washington
have
revenue generating capabilities not accessible to coun-
ties
in the state. Ms. Shirley Van Zanten, County Executive
for
Whatcom County, testified that there are two major sources
of
revenue available to cities and unavailable to counties
in
the state. She stated:
One is the business and occupation tax, which is a
varying
percentage on the gross of businesses
within the city.
The second is a utilities tax which is levied just
[sic] a flat surcharge on
natural gas, electricity
and telephone service within the
city. Those two
taxes bring in rather large
amounts of money to
the city. (See, Transcript, p. 182).
Mr. Sutberry,
Budget Director for the Employer, also asserted
a
difference in general fund resources of cities and counties
in
the state. He testified as follows:
The primary difference that I can discern is about
thirty-nine percent of the
revenues to the general
fund of the city . . . come from
the B. and O.
Taxes and from the tax on utility [sic] that the
county does not have access
to. (See, Transcript,
p. 243).
In view of the fundamental
difference in revenue generating
capability
and in the absence of other compelling points of
contact,
comparability data from Washington cities generally
have
not been used by the arbitration panel.
C. Why Use Washington Counties for Comparison?
The arbitration panel has used the counties of Benton,
Clark, Cowlitz, Kitsap,
Thurston, and Yakima in an effort to
obain an even-handed impression of an equitable
wage level
for
Whatcom County. Recognizing that the
legislature has not
instructed
interest arbitrators on whether or not to compare
cities
and counties, it is reasonable in this particular
case
to focus on six counties in view of a different size
or
functions or revenue sources in other counties or cities.
The counties selected have
been used because of their rela-
tive geographical proximity; similarity of
training for law
enforcement
personnel; the similarity of taxing constraints
faced
by those entities; the general uniformity in their
organizational
structure; and a reasonably similar population
base
in the six counties. Two counties,
namely, Clallam
and
Skagit Counties, have not been included as comparable
jurisdictions
because, according to the statutory definition,
they
do not qualify as "second class counties." The Employer's
own
exhibit shows that those two counties fall outside the
statutory
definition. (See, Employer's Exhibit No.
3).
V. THE UNION'S METHOD OF COMPARING HOURLY WAGES:
The Employer has collected data from other jurisdic-
tions that show a monthly wage. The Union has translated
wages
and benefits in other jurisdictions to an hourly wage.
As the Union has stated:
The great variety of elements of compensation in
a modern labor agreement or
modern personnel sys-
tem are each ultimately
translated into a dollars
and cents cost per hour to the
employer. All
such itemized costs are then totalled to deter-
mine the total hourly cost to
the employer for
compensation to the law enforcement
officers as
if the employer was compensating
the officers on
a dollar per hour basis rather
than the market
basket mix of fringe benefits
reflected in the
labor agreement or personnel
system. (See,
Union's Post-hearing Brief, p. 8).
First, the Union deserves considerable credit for the
good
faith effort it has made to effect a more usable system
of
comparative data. It is clear that
considerable time has
been
spent on the system, and it contains potential utility.
But use of hourly wage data
for protective services negoti-
ations constitutes a new and different approach to
collective
bargaining
in this jurisdiction. It might well be
valid,
but
it is new. The parties never joined
issue with regard
to
this approach to bargaining. Interest arbitration
cus-
tomarily has not been viewed as a place to develop
such a
significant
departure from customary procedures.
There was
no
evidence that there had been any attempt at all to bargain
with
regard to these hourly figures.
It is also evident that, although potentially quite
useful,
the hourly computations need refinement.
Many of the
data
have been solicited in telephone conversations.
(See,
Transcript, p. 138). Likewise, there is considerable variety
in
the state with regard to how law enforcement agencies com-
ply
with Social Security requirements, and those differences
have
not always been reflected in the computation of hourly
wages. (See, Transcript, pp. 67-68 and Union's
Exhibit No.
1). Even Mr. Rabine,
Chief Executive Officer for Teamsters
Local 763, recognized some
minimal arbitrary and subjective
features
to the Union's system of computing hourly wages in
this
matter. (See,
Transcript, pp. 76-77).
Despite difficulties with the hourly wage computations,
if
used, they would show that Whatcom County lags behind
comparable
jurisdictions. According to the Union,
there is
an
overall wage disparity in Whatcom County of $1.87 an hour,
excluding
the City of Seattle from the computation.
(See,
Union's Post-hearing Brief, p.
20). Using the hourly data
merely
to determine what information they might provide
reveals
the following pattern:
Counties 10 yrs BA 5 yrs, AA 5 yrs 10 yrs sqt.
Benton $17.31 $15.91 $15.41 $20.26
Clark 19.05 18.29 17.92 21.77
Cowlitz N/A N/A N/A N/A
Kitsap 18.06 17.58 17.58 20.52
Thurston 18.35 17.18 17.03 19.70
Yakima 17.08 16.78 16.78 19.00
On average, the Union's method
of computation shows that
Whatcom County's wage level is
below average at every range
except
for the 10 year sergeant.
A. Using
Monthly Wages as the Method of Comparison:
Using the Employer's method of computation for comparing
wages
shows that a wage increase is justified.
Those data
reveal
the following pattern:
Counties Deputy Sergeant
Benton $2100 $2500
Clark 2147 2485
Cowlitz 2323 2479
Kitsap 2303 2636
Thurston 2268 2449
Yakima 2096 2356
Those data show, in
particular, that wages of deputies in
Whatcom County are approximately 2% below those of comparable
counties.
B. What to do About Bellingham?
Despite the fact that Bellingham is a "city,"
there are
so
many significant points of contact with the County that
consideration
must be given to the wage structure for law
enforcement
personnel in the City of Bellingham. It
is recog-
nized that, with sixty-three officers, the
bargaining unit
in
Bellingham is considerably larger than in the County.
There is a mutual aid
agreement between the County and the
City, and the two entities do
assist each other in the per-
formance of their respective duties. As Mr. Raymond, Per-
sonnel Director for Whatcom County, made clear,
the two juris-
dictions
compete in the same labor market. (See,
Transcript,
p. 192).
Despite competing in the same labor market, assisting
each
other in the performance of their respective duties,
and
having the same training, law enforcement personnel in
the
county perform more duties for less pay.
Law enforcement
personnel
in both jurisdictions perform essentially the same
duties,
except that Whatcom County deputy sheriffs perform
more
work. Sheriff Mount made this fact clear, and it must
be
recalled that he spoke from the perspective of an indivi-
dual
who had worked as a police officer in Bellingham for
six
and a half years and has spent seven years as sheriff
in
Whatcom County. He testified as follows:
QUESTION: Would you say that a Whatcom County Deputy
Sheriff must have more legal knowledge than
the city policemen?
ANSWER: If you are looking at criminal, it would
be
the same. If you are talking about the
civil aspects, yes,
they have to. They
have to do more,
yes. (See, Transcript,
p. 232).
The Sheriff made clear that
deputies cover a larger
geographic
area than do city police officers. (See,
Transcript, p. 233). Likewise, deputy sheriffs may be
exposed
to greater danger on the job than are city police
officers. Sheriff Mount testified as follows:
QUESTION: Is it more likely that a Whatcom County
Deputy or a Bellingham policeman could be
required to handle a
situation by himself
without being able
to acquire back-up
readily?
ANSWER: A deputy.
(See, Transcript, p. 233).
The anomaly cannot be ignored that law enforcement per-
sonnel with the same training who work side by
side and even
work
as members of the same team to resolve a crime in the
vicinity
receive substantially different compensation.
Data
submitted
by the parties show the following pattern:
Counties Deputy Sergeant
Bellingham $2540 $3032
Whatcom 2166 2523
These data show that, on
average, Bellingham is 18.6% ahead
of
the County in wages paid to law enforcement personnel.
Using the Union's method of
computing the difference,
Bellingham pays a ten year
officer an hourly wage that is 8%
ahead
of the County and a ten year sergeant 10.7% more com-
pensation.
Without losing sight of the fact that the
Employer's method of
computation does not compare total com-
pensation packages, it remains clear that the
comparability
data
justify a wage increase.
The Union seeks a wage increase for July 1-December 31,
1985 of $1.53 an hour for a
total compensation of $19.81 per
hour. This amount is 2.75% more than the Bellingham
hourly
rate
and is 10.98% more than the 1985 Whatcom County hourly
rate. If sergeants were to receive an increase of
$1.37 an
hour
for a total compensation of $21.86 an hour, it would
constitute a
6.69% increase over 1985. Even so, a
Whatcom
County ten year sergeant would
lag 3.84% behind the hourly
wage
of a comparable sergeant in Bellingham.
The Employer has offered no increase for July-December,
1985. It is the contention of the Employer that the
Union's
proposal
would cost $122,478 over the period of the proposed
contract.
Recall also that wage settlements in comparable juris-
dictions
averaged 8.2% in 1985. Those data show
the follow-
ing pattern:
Counties Wage
Settlement
Benton 18.8
Clark 1.5
Cowlitz N/A
Kitsap 3.6
Thurston 9.2
Yakima 8.3
Ms. Van Zanten, County
Executive, made clear that other
Washington counties had
faced similar fiscal constraints
to
those confronted in Whatcom County.
(See, Transcript,
p. 180). Balancing the financial circumstances of the
Employer with the equitable
comparisons, it is reasonable
to
conclude that the data justify a wage increase of 3%.
C. Inability
to Pay:
Serious attention must be given to an employer's con-
tention that it is unable to fund a wage
proposal. In this
case,
the Employer has argued that "elements traditionally
deemed
necessary by arbitrators to substantiate an inability
to
pay argument exist in this case."
(See, Employer's Post-
hearing
Brief, p 12). "Ability to pay" has not been set
forth
specifically in RCW 41.56.460 as a factor to be taken
into
consideration by interest arbitrators.
Once raised,
however,
this factor normally and traditionally is taken
into
consideration in public sector interest arbitration
disputes.
How does one test the financial ability of the employer
to
fund a wage increase? There is a
distinction to be drawn
between
being unable to pay and unwilling to pay.
"Unwill-
ingness to pay" arguments generally have not
been found to
be
persuasive by interest arbitrators. In
"inability to
pay"
cases, the burden of proof has been on the employer
to
substantiate its claim. (See, for
example, NLRB v.
Truitt
Manufacturing Company, 351 U.S. 149 (1956)). The
courts
and administrative agencies have been consistent in
their
expectation that the party relying on the "inability
to
pay" argument must prove its case.
(See, for example,
NLRB v. Jacobs Manufacturing
Company, 169 F.2d 680 (2nd
Cir.
1952)). In
testing the contention of "inability to
pay,"
some public sector jurisdictions have used a "fiscal
strain
index." (See, Sioux County and
AFSCME Local 1774,
68
LA 1258 (1978).
There are four principal components of a fiscal strain
index. All are customarily analyzed in comparison
with com-
parable
jurisdictions First, what is the
employer's long
term
per capita debt? Second, what is the
employer's short
term
per capita debt? Third, what is the
employer's per
capita
expenditure for fundamental functions of
the employer
as
compared with expenditures for the same functions in com-
parable
jurisdictions? Finally, what is the
ratio of revenues
to
sales value of taxable property? Additionally,
it is use-
ful in proving inability to pay to know the
unemployment rate
of
the Employer as compared with comparable jurisdiction.
Likewise, what percentage of
residents in Whatcom County
receive
some form of welfare payments as compared with the
statewide
average in Washington counties or, at least, in
comparable
counties.
There are other sources of data on which the parties
might
draw to establish an inability to pay.
For example,
has
Moody's Investors Service or Standard & Poor's rated any
general
obligation bonds for the community? Such
ratings
might
be indicative of the level of investor confidence in
the
community. One might also evaluate the
current status
of
the Employer's pension liability. Is the
Employer cur-
rently exposed to any unfunded pension
liability? Is there
information
with regard to the per capita income for the
community
and its ranking with regard to comparable juris-
dictions? What percentage of that per capita income is
expended
on property taxes? In other words, how
well off is
a Whatcom County deputy sheriff in
comparison with an
average
resident of the county? One also must
consider any
layoffs,
sources of new revenue, and budgetary surpluses.
There exists no precise
formula for determining the level of
financial
destitution which must exist before an employer
will
be found unable to fund a wage proposal, but an effort
must
be made to balance the wage increase justified by the
data
and the taxpayers' willingness to meet costs.
The
question
ultimately is whether or not the Employer is able to
absorb
an increase in operating costs and, if so, an increase
in
the amount of 3% of the wage package for six months.
Evidence submitted by the parties makes it reasonable
to
conclude that the Employer has the fiscal ability to fund
a
3% wage increase for six months. In
1985, the Employer
increased
its surplus from the previous year by approximately
$100,000, leaving a fund
balance at the conclusion of 1985 of
$1,449,699. It is recognized that the Employer registered
war-
rants
in 1985, but doing so may well be built into the fiscal
structure
of the county. As Mr. Sutberry, County Budget
Director, testified
registering warrants "seems to be an annual
event
these days." (See,
Transcript, p. 259).
It is recognized that unemployment rates have been higher
in
Whatcom County than in the state generally.
What is un-
clear
is how Whatcom County compares with comparable jurisdic
tions with regard to unemployment levels. Arguably, other
counties
similar to this one have experienced similar fiscal
strains
and unemployment rates while also continuing to pro-
vide
reasonable wage increases. According to
evidence sub-
mitted at the hearing, the Employer retains 68% of
court
revenues,
and the Employer retained some discretionary authority
over
the level of those fees and fines. (See,
Transcript,
pp. 167-168). Likewise, the Employer retains considerable
control
over fees to be charged other jurisdictions for use
of
the jail facility. (See,
Transcript, p. 169). Nor can
it
be ignored that 15 to 20% of the county's current expense
fund
comes from the sales tax, and events in Canada have brought
thousands
of tourists through Whatcom County.
During the period when circumstances allegedly strained
county
resources, the size of the Sheriff's Department in-
creased
from forty-four to forty-seven to forty-nine to fifty
two
workers. When staffing cuts finally came
in 1985, they
came
not on the recommendation of the county's chief execu-
tive officer but were made by the County
Council. The County
Executive had proposed no
staff cuts. (See, Transcript,
p. 153). Recall also that, despite the nine staff
reductions
in
1985, the Employer just had added nine new corrections
officers
and two cooks to its staff in 1984.
(See, Transcript,
p. 158). Additionally, the fiscal strain was not great
in
1984. As Ms. Van Zanten,
County Executive, stated, "the 1984
budget
was fairly comfortable." (See, Transcript, p. 156).
The Employer provides numerous services to residents of
the
county as well as Bellingham, and there was no showing
that
fees for those services could not be increased.
For
example,
the Auditor's Office files and registers documents.
The Treasurer's Office
collects taxes and distributes them to
the
City as well as to the port. The Assessor's
Office
handles
all valuation of property and the assessment process.
The Prosecuting Attorney's
Office handles all criminal prose-
cutions. The
County Public Defense Office handles all criminal
defense. The entire court system is run by the County. The
County runs mental health
services, disability services, and
alcohol
treatment services. The City, on the
other hand,
reimburses
the County "only in that part of the property tax
and
the sales tax that we derive from within the city limits."
(See,
Transcript, p. 173). The
Employer failed to establish
that
revenues currently are being generated
at their maximum
level
by providing these services.
Testimony from Ms. Van Zanten
as well as Messrs. Raymond
and Sutberry established that there is an unwillingness, not
an
inability, to fund a wage increase in this case. Ms.
Van Zanten
testified as follows with regard to this issue:
QUESTION: Are you saying today that the county has no
revenue with which
to pay any increase in
wages for the
Sheriff's Department for the
period of July 1,
1985 through the end of
1985?
ANSWER: My response is the total provision of
service
to Whatcom County,
including the Sheriff's
Department, the revenues that we have are
limited. If additional amounts go to one
department, it means
that they have to come
from some other area
of service in Whatcom
County. (See, Transcript, pp.
179-180).
Mr. Raymond, County Personnel
Director, reflected the same
Position. He testified as follows:
QUESTION: Did you specifically say the County could
not afford more than
the zero percent?
ANSWER: The County could probably find the money.
It's there.
There are funds, which this is
not a large amount
in terms of actual dollars;
but, on the other
hand, any money which is
taken from here has
to be taken from some
source, and that
means either cutting posi
tions
somewhere else, or -- (See, Tran-
script, p 212).
Mr. Sutberry,
in his testimony, agreed with the two previous
statements. He said:
QUESTION: It's a question of how the county chooses to
spend its money,
isn't that correct?
ANSWER: To a large degree, yes. The policy makers
of the Council
determine how to allocate
those available
funds, yes. (See, Transcript,
pp. 255-256).
In other- words, the Employer is arguing that, even if
there
was an ability to pay a wage increase, its budgetary
allocations
should be considered conclusive on all parties.
First, it is important to
stress that the Employer failed
to
be persuasive that County budgetary priorities must be
revised
in order to meet a 3% wage increase for six months.
Additionally, however, it is
reasonable to assume that, if
the
legislature intended county budgetary allocations to be
conclusive,
it would have set forth regulations to that
effect. Giving conclusive weight to budgetary
allocations
would
render virtually meaningless the collective bargaining
obligation
of the parties. To do so would return
the parties
to
the employer/employe relationship that existed prior
to
RCW
4l.56.010 - 41.56.490. RCW
41.56.905 has made clear that
provisions
of the collective bargaining statute "shall be
liberally
construed to accomplish their purpose."
That
reflects
the will of the legislature, and the arbitrator is
bound
by it.
VI. THE ISSUE OF PARITY
The Employer has argued for wage increase parity in
this
case. (See, Employer's
Post-hearing Brief, pp. 10-11).
In other words, the Employer
has maintained that, since it
negotiated
percentage increases with all other county employers
of
0, 4, 3-6 COLA for 1984, 1985, and 1986, this bargaining
unit
should accept percentage increases of 0, 4, 3-6 COLA for
1985,
1986 and 1987. It
is management's contention that, in
this
way it can achieve internal equity of wages.
The parties have supplied the interest arbitration panel
with
insufficient data to establish that management's approach
to
wage increase parity would accomplish internal equity.
For example, there have been
no data submitted with regard
to
what other benefits have been obtained by other bargaining
units
in lieu of a substantial increase in wages.
More
troubling
is an assumption implicit in the Employer's position
that
the Union's wage demand is not being considered on the
merits
but primarily within the context of the Employer's
quest
for wage increase parity. In effect,
other bargaining
units
are being made silent negotiators in this bargaining
unit's
impasse with the Employer. It is
conceded that the
impact
of one wage settlement on other bargaining units cannot
be
ignored. At the same time, to make the internal
equity"
argument
controlling would diminish the legislative grant of
collective
bargaining rights and would contravene the intent
of
the public employment collective bargaining statute.
The Employer's quest for internal wage equity is an
important
factor that deserves consideration in this wage
determination. It, however, cannot be dispositive
of the
issue. A strong reliance on the "wage increase
parity"
argument
in this case is undermined by the statutory require-
ment and the arbitral tradition of evaluating
comparability
data. Negotiation goals of the parties must be
analyzed
within
the context of comparability data. Most
significantly,
the
arbitration panel has not received evidence of a history
of
rate equalization by the Employer.
Evidence submitted by
the
parties supports a conclusion that rate equalization has
not
been the pattern in this particular jurisdiction (See,
Employer's
Exhibit No. 2).
VII. LAW ENFORCEMENT OFFICERS AND FIREFIGHTERS ACT (LEOFF I
AND LEOFF II):
The state legislature has mandated that law enforcement
officers
and firefighters employed in the County prior to
October 1, 1977 shall be
covered by a disability insurance
that
covers the entire medical bill for on the job or off the
job
injuries. These individuals have been
characterized as
"LEOFF
I" employes. Whether an injury resulted from perform-
mg
one's duties as a deputy sheriff or in a recreational
accident
at home, the LEOFF I system would cover medical
expenses.
Employes hired after October 1,
1977 have been charac-
terized as "LEOFF II" employes. The LEOFF II disability
insurance
system provides coverage of medical expenses incurred
for
on the job injuries. Payments of
medical expenses incurred
as a
result of off duty injuries, however, have been eliminated
by
the LEOFF II program. The Union has
proposed that the
Employer fund an insurance
program to eliminate the distinc-
tion between LEOFF I and LEOFF II employes. While the
pro-
posed
insurance policy would cover on duty injuries, its
primary
focus is to "restore the benefits which were taken
away
by the legislature" when it established a distinction
between
LEOFF I and LEOFF II employes.
In this particular bargaining unit, approximately fifty
percent
of the employes enjoy LEOFF I coverage, and fifty
percent
have LEOFF II protection. (See, Transcript, p. 73).
The LEOFF II employe, if injured, receives Worker Compensa-
tion, and any reduction in the employe's monthly compensation
is
borne half by the County and half by an employe's
paid
leave
benefits, including sick leave, compensatory time,
holiday
time, and vacation benefits. The
disability leave
supplement
covers only the deputy sheriffs under the LEOFF II
retirement
system.
To give LEOFF II employes the
injury compensation pro-
tection enjoyed by employes
covered under the LEOFF I retire-
ment system would cost Whatcom County
approximately $2600 a
year. In a departmental budget of $2.3 million
dollars, the
cost
would not appear to be significant
The "low cost" argument, however, fails to
address a
compelling
aspect of the issue. What is the justification
for
the benefit? Comparability data have not
provided a basis
for
awarding the benefit. It was unrebutted that very few
jurisdictions
in the state have provided the type of insurance
sought
by the Union. (See,
Transcript, p. 202). Nor did the
legislature
believe it to be inequitable to establish a two-
tier
system of disability coverage. The Union
contended that
its
proposal had been "grounded in the equity of assuring
that
similarly employed employees employed by the same
employer
received similar benefits." (See,
Union's Post-
hearing
Brief, p 25). Yet, it must be presumed that the
Employer is not implementing
an inequitable system for
LEOFF I and LEOFF II employes when it is applying regulations
set
forth by the state legislature in HB 435.
Nor was there
a
showing that any employes in Whatcom County,
protective
services
or otherwise, enjoy the benefit sought by the Union,
except
as it specifically has been enacted by the state
legislature.
AWARD
Having carefully considered all evidence submitted by
the
parties concerning this matter, the arbitrator, in com-
pliance with RCW 41.56.450, has set forth findings
of fact and
a
determination of the issues in dispute, based on the evi-
dence presented.
The determination is as follows:
(1) There
shall be a three percent wage increase for
the period July
1, 1985 to December 31, 1985;
(2) The
Employer has the ability to fund this three
percent wage
increase; and
(3) The
Union's long term disability insurance proposal
covering LEOFF II employes shall not become a part
of the agreement
between the parties.
It is so ordered and awarded.
Respectfully
submitted,
___________________________
Marven K. Eggert
Secretary
- Treasurer of
Teamsters
Local 231
___________________________
Carlton
J. Snow
Professor
of Law
Chairman
of the Panel
___________________________
Terry
A. Unger
Acting
Director of
Nor-Bell
Nursing Home
Date:______9-29-86________