INTEREST ARBITRATIONS

Decision Information

Decision Content

Whatcom County

And

General Teamsters Local Union No. 231, Sheriff Department Unit

Interest Arbitration

Arbitrator:      Carlton J. Snow

Date Issued:   09/29/1986

 

 

Arbitrator:         Snow; Carlton J.

Case #:              06094-I85-00134

Employer:          Whatcom County

Union:                Teamsters; Local 231

Date Issued:     09/29/1986

 

 

                        IN THE MATTER OF INTEREST ARBITRATION

                                                     BETWEEN

                        GENERAL TEAMSTERS LOCAL UNION NO. 231

                                    SHERIFF'S DEPARTMENT UNIT

                                                          AND

                                 WHATCOM COUNTY, WASHINGTON

 

                                    _________________________

                                           ANALYSIS AND AWARD

                                    _________________________

 

                                                Arbitration Panel:

                                       Canton J. Snow, Chairman

                                               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 Oregon and California

                        "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 UNION'S METHOD OF COMPARING HOURLY WAGES                      13

            A.        Using Monthly Wages as the Method

                        of Comparison                                                                                                15

            B.        What to Do About Bellingham?                                                                    15

            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 UNION           )  Union Appointed Arbitrator

                        NO. 231                                              )

SHERIFF'S DEPARTMENT UNIT                        )           Carlton J. Snow,

                                                                                    )           Neutral Arbitrator and

                        AND                                                   )           Chairman of the Panel

                                                                                    )

WHATCOM COUNTY, WASHINGTON   )           Terry A. Unger

                                                                                    )           Employer Appointed Arbitrator

 

I.          INTRODUCTION

 

            This matter came for hearing pursuant to RCW 41.56.450.

A hearing occurred on June 24, 1986 in a courtroom of the

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; Carlton J. Snow, Professor of Law; and Terry

A. Unger, Acting Director of the Nor-Bell Nursing Home.  Mr.

Matthew D. Durham, a partner in Donworth, Taylor and Company,

represented Whatcom County.  Mr. Herman Wacker of Davies,

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 Washington legislature has mandated interest arbitration

for uniformed personnel in the state in an effort to imple

ment "a public policy in the State of Washington against

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 July 1, 1985, only uniformed personnel in cities

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________

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