INTEREST ARBITRATIONS

Decision Information

Decision Content

International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 58

And

Cowlitz County

Interest Arbitration

Arbitrator:      Michael H. Beck

Date Issued:   04/07/1987

 

 

Arbitrator:         Beck; Michael H.

Case #:              06151-I-85-00135

Employer:          Cowlitz County

Union:                Teamsters Union; Local 58

Date Issued:      04/07/1987

 

 

IN THE MATTER OF

 

COWLITZ COUNTY

 

             and                

 

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN

AND HELPERS, LOCAL UNION NO. 58

 

Date    Issued:            April 7, 1987

PERC  No.                  6151-I-85-135

 

 

 

INTEREST ARBITRATION

OPINION AND AWARD

 

OF

 

MICHAEL H. BECK

 

FOR

 

THE ARBITRATION PANEL

            Michael H. Beck        Neutral Chairman

            Barbara Revo            Employer Representative

            John Komar    Union Representative

 

 

Appearances:

                                               

COWLITZ COUNTY                                                                                    Lawrence B. Hannah

 

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS , CHAUFFEURS,

WAREHOUSEMEN AND HELPERS,

LOCAL UNION NO. 58                                                                               Herman L. Wacker

 

IN THE MATTER OF

 

COWLITZ COUNTY

 

            and

 

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN

AND HELPERS, LOCAL UNION NO. 58

 

 

                                                INTEREST ARBITRATION OPINION

 

PROCEDURAL MATTERS

 

            RCW 41.56.450 provides for the arbitration of disputes

when collective bargaining negotiations involving uniformed

personnel have resulted in impasse.  The parties agree that

the deputy sheriffs and sergeants employed by Cowlitz County

are subject to the aforementioned arbitration procedures.

The undersigned was selected by the parties to serve as the

Neutral Chairman of the tripartite arbitration panel.  The

Arbitrator selected by the Employer, Cowlitz County, is

Barbara Revo, of the management consulting firm of Cabot Dow

& Associates.  The Arbitrator selected by the Union, Inter

national Brotherhood of Teamsters, Chauffeurs, Warehousemen

and Helpers, Local Union No. 58, is John Komar, Administra

tive Assistant for the public, Professional & Office-

Clerical Employees and Drivers Local Union No. 763, affi-

liated with the International Brotherhood of Teamsters

Chauffeurs, Warehousemen and Helpers.

 

            A hearing was held before the Arbitration panel on

January 6, 1987 in Kelso, Washington.  The Employer was

represented by Lawrence B. Hannah of the law firm, Perkins

Coie.  The Union was represented by Herman L. Wacker of the

law firm, Davies, Roberts, Reid & Wacker.  At the hearing

the testimony of witnesses was taken under oath and the

parties presented extensive documentary evidence which

measured almost a foot in height.  A court reporter was

present and a verbatim transcript was prepared and provided

to the Neutral Chairman (hereinafter Chairman) for his use

in reaching a decision in this matter.

 

            The parties agreed to file simultaneous posthearing

briefs.  The Employer's brief was timely postmarked and

received on February 16, 1987.  The Union's brief was timely

postmarked but was mailed to the wrong address and thus was

not received until February 20, 1987.  At the request of the

Chairman, the parties agreed to an extension of the statut-

ory requirement that a decision issue within thirty days.

Instead, the Chairman was given until April 8, 1987 to issue

his decision.  On March 24, 1987, the Chairman met with the

other members of the Arbitration panel.  A discussion of the

issues occurred which was very helpful to the Chairman.  In

accordance with the statutory mandate, I set forth herein my

findings of fact and determination of the issues.

 

ISSUES IN DISPUTE

 

            By letter of December 30, 1985, the Executive Director

of the public Employment Relations Commission certified a

number of issues to be submitted to interest arbitration.

Subsequent to such certification, the parties were able to

settle a large number of the outstanding issues.  Pursuant

to the parties' December 5, 1986 pre-Arbitration Agreement,

the following issues remain:

 

Holidays

Uniforms and Uniform Equipment List

Salary Schedule

Salaries - Step Advancement

 

DISCUSSION

 

            Comparables

 

            RCW 41.56.460 directs that the following criteria

shall be taken into consideration as relevant factors in

reaching a decision:

 

(T)he panel shall be mindful of the

legislative purpose enumerated in RCW

41.56.430 and as additional standards

or guidelines to aid it in reaching a

decision, it shall take into consider-

ation the following factors:

 

(a)        The constitutional and statutory

authority of the employer;

(b)        Stipulations of the parties;

(c)        Comparison of the wages, hours and

conditions of employment of personnel

involved in the proceedings with the

wages, hours, and conditions of employ-

ment of like personnel of like

employers of similar size on the west

coast of the United States.

(d)        The average consumer prices for

goods and services, commonly known as

the cost of living;

(e)        Changes in any of the foregoing

circumstances during the pendency of

the proceedings; and

(f)        Such other factors, not confined

to the foregoing, which are normally or

traditionally taken into consideration

in the determination of wages, hours

and conditions of employment.

 

            The legislative purpose for enactment of the interest

arbitration statute is set forth in RCW 4l.56.430 as follows:

 

The intent and purpose of this . .

act is to recognize that there exists a

public policy in the state of Wash-

ington against strikes by uniformed

personnel as a means of settling their

labor disputes; that the uninterrupted

and dedicated service of these classes

of employees is vital to the welfare

and public safety of the state of

Washington; that to promote such dedi-

cated and uninterrupted public service

there should exist an effective and

adequate alternativeness of settling

disputes.

 

            The parties involved here are deputy sheriffs and

sergeants employed by a county.  They provide service to a

population base of approximately 79,600.  I have used the

Employer's population figure for Cowlitz County of 79.600

rather than the Union 5 figure of 79,000 because the source

of the Employer's population figure appears to be slightly

more recent and because I have generally determined to use

the Employer comparators, as will be explained later in

this Opinion.

 

            The parties are not agreed upon which comparators are

appropriate to use in reviewing the matters at issue here.

The Union urges that the proper comparators are those cities

and counties in the State of Washington which are subject to

the statutory interest arbitration procedures.  According to

the Union there is no valid reason in this case to find that

''like employers" refers only to other counties.  The Union

contends that cities and counties are appropriately con-

sidered like employers since there are few significant

differences between the law enforcement activities of city

police officers and those of county sheriffs.  Further, the

Union maintains that the reason commonly used for finding

cities and counties not to be like employers, i.e.,

different revenue-raising devices, does not address the

issue of comparability but only the relative ability of

cities and counties to pay for personnel costs.  Finally,

the Union contends that compensation levels in cities

subject to interest arbitration reflect the effects of in-

terest arbitration whereas compensation levels in counties

not subject to interest arbitration reflect compensation

amounts which tend to favor employers.

 

            Whatever merit there may be in the Union's proposed

interpretation of the statutory requirement that comparisons

be made between "like personnel of like employers", it is

clear that the statutory interpretation urged by the Union

cannot be adopted since it conflicts with another specific

statutory requirement.  Here, use of the Union's comparators

would require that the Chairman ignore the statutory

requirement that comparators be of "similar size".

 

            The Union's proposed comparators are set forth in Union

Exhibit No. 44 (Counties) and Union Exhibit No. 53 (Cities).

The Union's proposed comparator counties range in population

from 107,700 to 1,326,600.  The Union's proposed comparator

cities range in population from 16,02 to 490,300  Thus,

the Union's comparators range in population from almost 80%

below to more than 1566% above the population of Cowlitz

County.  In my view such wide variances in population cannot

be considered to meet the statutory requirement that the

comparators be of similar size.  As the Employer points out

in its brief, there is ample arbitral support for the con-

clusion that population variances of such magnitude do not

comport with the statutory requirement that comparators be

of similar size.  Finally, in this regard, if your Chairman

were to accept the Union's comparators, he would ignore the

statutory requirement that the comparators selected are to

be "west coast" jurisdictions and not simply jurisdictions

from the State of Washington.

 

            The Employer has proposed a set of twenty comparators.

The Employer arrived at these by selecting all counties in

Washington, Oregon, California and Alaska which had a popu-

lation range of plus or minus 50% of the population of

Cowlitz County.  This analysis produced ten counties in

Washington, one in Alaska, ten in Oregon, and twelve in

California.  The one jurisdiction in Alaska, Fairbanks North

Star Borough, was eliminated because it does not provide any

police services.  The Employer reduced the number of

counties In Oregon and California by selecting the five

counties in each state closest to Cowlitz in population.

The Employer made no further reduction in the counties

selected for Washington.

 

            For Oregon and California, the ten Employer selected

comparators range in population from a low of 61,500

(Josephine County) to a high of 101,200 (El Dorado County),

which is a range of from 23% below to 27% above Cowlitz

County.  For Washington, however, the Employer's comparables

range from a low of 48,400 (Walla Walla County) to a high of

116,000 (Whatcom County), which is a range of from 39% below

to 46% above Cowlitz.  In view of the foregoing percentage

disparities and the fact that the statute does not indicate

that Washington State jurisdictions are to be more heavily

weighted than other jurisdictions on the west coast, I have

determined to select only five Washington counties.  This

decision is consistent with the method used by the Employer

to select counties in Oregon and California in that I have

chosen the five counties in Washington closest to Cowlitz in

population to use as Washington comparators.  The result is

a sample of fifteen comparators, five each from Washington,

Oregon and California.  The population range of the fifteen

selected comparators is almost exactly plus or minus 33%

 

            I also reviewed the comparators provided by the Union

to determine whether any of the Union's proposed comparators

fell within this population range.  Only one of the Union's

proposed counties, Benton, Washington (which I have selected

for use as a comparator from the Employer's proposed list)

and two cities, Bellevue and Everett were within the plus

or minus 33% range.  These three comparators taken alone

would be an insufficient number of comparators to make any

meaningful comparison with Cowlitz County.  Further, I have

chosen not to include Bellevue and Everett in the list of

comparators because the wage and benefit information pro-

vided by the Union reflects 1985 compensation levels while

the information provided by the Employer reflects 1986

compensation levels.  Here the dispute between the parties

does not involve 1985, it involves compensation levels for

1986 and 1987.

 

            The following chart sets forth the selected

comparator counties with their respective populations:

 

        Washington                                Oregon                                California

           

Benton            105,200           Douglas          92,150 El Dorado       101,200

 

Skagit                68,200          Linn                 89,000            Kings                83,500

 

Grays Harbor   63,900           Benton            69,100            Madera             75,300

 

Lewis                 56,500          Deschutes       65,400            Mendocino        72,700

 

Clallam               52,600         Josephine       65,500            Nevada              66,300

 

 

                        Salary Schedule

 

                        The parties have agreed upon a three year term for the

Agreement.  The Union proposes a 0% salary increase for

1985, 5% for 1986 and 5% for 1987.  The Employer proposes no

wage increase for the term of the Agreement.  The parties

are not agreed on the appropriate basis to use in comparing

the wages of the comparators with those of the Employer.

The Employer urges that only salaries be considered in

comparing Cowlitz County with the other comparators.  The

Union maintains that all wages and benefits should be

reduced to a dollar value and that a total compensation

figure be used for comparison.  For the following reasons I

have decided not to use the net hourly compensation analysis

urged by the Union.

 

            The Union includes in its analysis a wide range of

benefits and sets forth as their value to the employee the

cost of such benefits to the Employer.  The cost to the

Employer of benefits such as a pension plan, health in-

surance or life insurance does not represent direct compen-

sation paid to employees.  Furthermore, such benefits may

have widely differing values to employees depending on the

specific terms of such benefits and an employee's individual

situation.  For example, health insurance may be of sub-

stantially greater value to an employee whose spouse is not

receiving health benefits at his or her place of employment

than to an employee whose spouse is receiving broad health

insurance coverage at his or her place of employment.  Thus,

to the extent that benefit figures reflect cost to the

Employer, rather than compensation paid to the employee, it

is very difficult to calculate the value of such benefits to

employees.  Additionally, the Union seeks to include in its

net hourly compensation figures certain other benefits, such

as holiday pay and uniform allowances, which are matters to

be separately resolved in this case.

 

            I agree, however, with the Union that looking solely to

monthly salaries to evaluate the relative monthly compen-

sation in wages among the comparators will not give an

accurate comparison.  The approach I have selected is a

compromise between that urged by the Union and that urged by

the Employer.  I have included in my analysis those elements

of compensation that are readily ascertainable and that

reflect real wage compensation paid to employees each month.

I have, therefore, included longevity and educational

premium pay since these are amounts paid directly to

employees and really are an integral part of the salary

schedule.  Additionally, I have included pension pick-up

since, as I understand this benefit, the amounts paid by the

Counties in Oregon and California to the pension system in

those states are amounts the employee would be required to

pay if the employer involved was not "picking up" the

pension contribution.

 

            The following chart indicates the position of Cowlitz

County relative to that of the selected comparators.  The

total salary figure represents the maximum monthly total of

wages, longevity pay (based on 20 years of service), edu-

cational premium pay, and pension pick-up payments made by

each comparator to its deputies.  Maximum amounts have been

used since almost all members of the bargaining unit here

are at top step.  I have not attempted to separately compare

sergeants since the Union is not advancing a different wage

proposal for those employees and because the deputies

constitute a large majority of the unit.  The figures pro-

vided by the Employer on Employer Exhibit Nos. 15, 16, 17

and 26 have been used except where obvious errors or

apparent inconsistencies between 1986 and 1987 figures

resulted in a recalculation of the figures.  Any changes

made in the Employer's figures are noted and explained in

the relevant footnotes attached to this Opinion.  In addi-

tion, because of the difficulty of comparing the 1986 total

monthly wage of the comparator employees, who work 2080

hours per year, with the monthly wage of the Cowlitz County

employees who worked 1950 hours in 1986, I have calculated

the hourly rate for each comparator and Cowlitz County based

on their respective scheduled hours of work.

 

                                                1986 WAGE AND BENEFIT ANALYSIS

 

Jurisdiction        Wages      Longevity   Education   Pension           Total          Hourly

 

Benton-WA                2201                100                  40                    -                       2341               13.51

                                                           

Clallam                       2003                  60                  -                      -                       2063                11.90

                                                           

Grays Harbor             19901                  40                   -                     -                       2030                11.71

                       

Lewis                          1926                100                  12.50               -                       2039                11.76

                                                           

Skagit                         22283                 45                      -                   -                       2273                13.11

 

Benton-OR                 2090                   -                   104.50        125.40                   2320                13.38

 

Deschutes                   2126                120                  150            127.56                  2524                 14.56

 

Douglas                      20454                  -                       _5           122.706                  2168                12.51

 

Josephine7                      -                      -                         -                  -                           -                       -

 

Linn                             2039                   -                       45           122.34                   2206                12.73

                                   

El Dorado-CA            2415                   -                    120.75        60.38                    2596                14.98

 

Kings                          2212                   -                          -           121.668                  2334                13.46

 

Madera                       18829               188                        -             94.10                   2164                12.49

                                   

Mendocino                 214410  -                       160.00 -                       2305                13.30

                                               

Nevada                       2035                -                             -             91.58                   2127                12.27

 

 

AVERAGE                                                                                                                 2249                12.98

 

COWLITZ                                                                                                                  2323                14.30

 

PERCENT COWLITZ ABOVE AVERAGE                                                                               +10.2%

 

            The foregoing chart shows that for 1986, the average

hourly wage and benefit rate for the comparators was $12.98.

The total hourly rate for Cowlitz County was $14.30.  Thus,

Cowlitz County employees were paid 10.2% more than the

average total hourly compensation of the comparators and

ranked third behind El Dorado, California and Deschutes,

Oregon.  This extremely favorable ranking of Cowlitz for

1986 indicates that no wage increase is warranted for 1986.

Even without an increase for 1986 the Employer is still in a

position as a 'I wage leader" among the selected comparators,

as the Union contends is appropriate.

 

            For 1987, the Employer provided in its brief a revised

copy of Employer Exhibit No. 19, showing the comparators'

salaries for 1987.  In reviewing this revised exhibit, I

have determined based on the evidence in the record that,

except for the changes noted, the revised exhibit more

accurately reflects the salaries of the comparators for

1987.  For six of the comparators, wage and benefit figures

are not available for 1987.  In certain instances

corrections were indicated and any such corrections which I

have made in the Employer's figures are noted and explained

in the footnotes attached to this Opinion.  The following

chart indicates the position of Cowlitz County in 1987

relative to that of the comparators.  I have used the same

methodology in assembling this chart as was used for the

1986 wage chart above.  To do so, I have had to calculate

the appropriate longevity, education, and pension amounts

since such figures were not provided by the Employer for

1987 in its revised Employer Exhibit No. 19.  The term  INA"

means information not available.

 

 

                                                1987 WAGE AND BENEFIT ANALYSIS

 

Jurisdiction      Wages        Longevity             Education    Pension             Total              Hourly

 

Benton-WA                2306                100                              40                    -           2446                14.11

 

Clallam                       INA                     -                               -                      -              -                        -

 

Grays Harbor             19701                  40                             -                      -           2010                11.60                                                             

Lewis                          INA                      -                              -                      -              -                        -

                                                           

Skagit                         23012                  45                             -                      -           2346                13.53

           

Benton-OR                 21953                    -                              104.50       131.70       2431                14.03

 

Deschutes                   21904               120                             175              131.40     2616                  15.09

 

Douglas                      21495                   -                                 -                 128.94     2278                  13.14

 

Josephine                   INA                     -                                 -                     -              -                          -

 

Linn                             INA                     -                                 -                     -              -                          -

 

El Dorado-CA            24156                   -                               120.75             60.38   2596                  14.98

 

Kings                          2256                    -                                   -                 124.09   2380                  13.73

 

Madera                       INA                    -                                    -                   -             -                          -

 

Mendocino                 INA                    -                                    -                   -             -                          -

 

Nevada                       2035                   -                                    -                     91.58  2127                   12.27

           

AVERAGE                                                                                                                   2359     13.61

           

COWLITZ                                                                                                                    2478     14.30

 

Percent Difference                                                                                                                    +5.1%

 

            The foregoing chart shows that the average hourly com-

pensation for the available comparators for 1987 is $13.61.

The hourly rate of compensation for Cowlitz County is

$14.30.  As can be seen from the chart, although Cowlitz

County is 5.1% ahead of the average of the comparators, it

has lost more than 5% in relation to its position in 1986

relative to the average of the comparators.

 

            It is also clear that the cost of living has increased

from the time of the last wage increase given to Cowlitz

County bargaining unit employees in July, 1984.  The

Consumer price Index for Urban and Clerical Workers (CPI-W)

for All U.S. Cities increased 5.8%, for Portland 3.9%, and

for Seatt1e-Everett 2.8% between July, 1984 and November,

1986.  November, 1986 was selected because it is the latest

date for which figures are available for the foregoing

indices.  Since there is not agreement by the parties as to

which of these three indices should be used for comparison

purposes, I find it appropriate to average the three indices

in order to arrive at a figure which is reflective of the

increase in the cost of living for Cowlitz County.  The

average increase in the cost of living represented by the

three indices is 4.2% for the period from July, 1984 to

November, 1986.

 

            In addition to the statistical factors discussed above,

I note that the stated intent of the Legislature, in

adopting the interest arbitration provision for uniformed

personnel, was to insure the dedicated and uninterrupted

vital public service provided by such personnel.  Your

Chairman is specifically directed by statute to be mindful

of this legislative purpose in reaching a decision.  To the

extent that attention to this statutory purpose may result

in a wage or benefit increase beyond that obtained by other

public employees not subject to such procedure, such

difference is inherent in the legislative establishment of

differing collective bargaining rights for uniformed per-

sonnel and other public employees.

 

            As noted above, the bargaining unit here has not had a

wage increase since July, 1984.  Although it is true that

bargaining unit members received a 6.7% increase in monthly

salary for 1987, such increase merely reflects a 6.7% in-

crease in the monthly hours of work.  As was clear at the

hearing, such increase could also be viewed as a decrease in

compensation since employees will work 2 1/2 more hours per

week at the same hourly rate and will lose the overtime pay

which would previously have accompanied such extra hours.

 

            Based on the foregoing discussion, I find that some

wage increase for 1987 is warranted.  To adopt the

Employer's salary proposal for 1987 would not be appropriate

since it would result in a decrease in real wages in the

face of a rising cost of living.  In such circumstances, a

lack of any wage increase over 3.5 year period cannot be

expected to meet the statutory purpose discussed above.  An

appropriate increase for 1987 is 4.2%.  This increase

reflects the average increase in the cost of living since

the last prior wage increase.  While such increase will

compensate employees for the increased cost of living, such

increase will not wholly maintain the Cowlitz County

employees' 1986 position relative to the other comparators.

Nonetheless, they will remain well-compensated in relation

to the other comparators.

 

            Salary - Step Advancement

 

            The parties' prior Agreement established a salary step

advancement schedule based on length of employment.  The

Employer proposes to make advancement on the salary step

schedule contingent upon a satisfactory job evaluation.  The

Union proposes no changes in the prior contract language.

In support of its position, the Employer relies upon the

fact that a majority of the selected comparators provide for

step advancement based on satisfactory job performance.

 

            After reviewing the Employer's proposal to establish

satisfactory performance as a criteria for salary step

advancement I find, in agreement with the Union, that it is

vague in content.  Neither personnel Director, Richard

Anderson, nor Undersheriff, Gary Lee, could explain how the

evaluation form which the Employer had developed would be

used to determine whether employees would be denied a step

increase.  Neither witness could explain whether a point

system or some other grading system would be used, and, if

points were used, how points would be allocated to particu-

lar levels of performance by category or what total number

of points would be required for a satisfactory evaluation.

 

            In addition to the lack of specific content in the

Employer's proposed evaluation system, the Employer did not

offer a particular reason why such an evaluation system

should be implemented in this bargaining unit.  It was clear

from the testimony of Anderson that the present disciplinary

system permits the Employer to discipline employees for poor

job performance.  There was no claim by the Employer that

the present system is somehow inadequate or unworkable.

 

            I note that the term of the Agreement at issue here is

scheduled to expire December 31, 1987.  Negotiations for a

new Agreement will soon begin.  Both the issue of imple-

mentation of a salary step system based on satisfactory

performance and the content of any such evaluation system

are clearly amenable to the bargaining process.  Should such

bargaining process not result in agreement on this issue and

were the Employer to offer a definite evaluation system and

a rationale for implementing the system in this bargaining

unit, then it would certainly be appropriate at that time to

consider such a change.  Here, however, where the Employer

has offered neither, it is not appropriate to order any

change in the prior Agreement.

 

            Holidays

 

            The parties are agreed that if a holiday falls on an

employee's regularly scheduled work day, the employee will

receive his regular straight-time pay plus pay at time and

one-half.  They are also agreed that if a holiday occurs on

an employee's regularly scheduled day off, such employee

will be paid for the holiday at his regular straight time

rate or, at the employee's option, receive an extra day off

with pay.

 

            At issue here is what should be the appropriate compen-

sation when a holiday occurs on an employee's regularly

scheduled work day, but the Employer decides to reduce the

level of staff and the employee is not required to work.

The Employer contends that the employee should receive the

day off with regular straight-time pay.  The Union contends

that the employee should be treated similarly to the

employee whose regular day off occurs on the holiday and

receive an additional day's pay or an additional day off.

An additional issue involves the Union's assertion that

seniority should be the primary criteria used to determine

which employees will work on a holiday when there is not

full staffing.

 

            The Employer contends that because no other comparator

pays a holiday premium when an employee is taking a holiday

off, the Employer should not be required to do so either.

Further, during discussions with the other members on the

Arbitration panel, the Employer's representative on the

panel contended that awarding an additional day's pay or an

additional day off in the circumstances at issue here would

not result in similar treatment of employees whose day off

falls on a holiday and those whose day off does not fall on a

holiday but are given the day off.  The Union relies on the

language of the prior Agreement in support of its position.

However, as the Employer points out this matter is not in

the posture of a grievance but is before an interest arbi-

tration panel.

 

            After careful consideration of this matter, I find that

it is not appropriate to award an extra day's pay or an

extra day off to an employee scheduled to work but given the

holiday off with pay.  To do so would result in such

employee receiving an even greater holiday benefit than that

received by an employee who actually works on the holiday.

 

            For example, assume a standard working month contains

22 work days.  Assume further, for ease of calculation, that

employees are paid a salary equivalent to $100 per day.

Under the agreed upon terms of the Agreement, an employee

who must work on a designated holiday will receive his

regular monthly salary for 22 days of work ($2,200) and in

addition will receive time and one-half in holiday pay

($150) for a total of $2,350.  This is the equivalent of

working 22 days and receiving pay for 23.5 days.  On a daily

basis, the employee's effective daily rate would be

$2,350/22 or $106.82.

 

            An employee whose day off falls on a holiday has the

option of receiving an additional day off or an additional

day's pay.  If the employee elects an additional day off,

he will be paid for 22 days but work only 21 for an

effective daily rate of $2,200/21 or $104.76.  If the

employee elects to receive an additional day's pay, he will

be paid for 23 days and work 22, for an effective daily rate

of $2,300/22 or $104.55.

 

            Under the Union I  proposal, an employee who was

scheduled to work on a holiday but was given the day off

with pay could elect to receive an additional day off or an

additional day's pay.  If the employee chose to receive an

additional day's pay, he would be paid for 23 days ($2,300)

but only work 21 days.  This is an effective daily rate of

$2,300/21 or $109.53.  This is a higher rate of compensation

than is received by the employee who must work on the holi-

day ($109.53 compared to $106.82).  Similarly, if the

employee elects to receive an additional day off, he will be

paid for 22 days but only work 20.  This is an effective

daily rate of $2,200/20 or $110, which is even higher than

the $109.53 rate provided the employee who chose to receive

an additional day's pay.

 

            Under the Employer's proposal an employee given a

holiday off with pay would work 21 days and receive pay for

22 for an effective daily rate of $2,200/21 or $104.76.

Thus, in terms of effective rate of compensation, the

Employer's proposal compensates an employee who is given a

holiday off with pay identically to an employee whose

regular day off falls on a holiday and elects an additional

day off, and almost identically to the same employee who

chooses instead, an additional day's pay ($104.76 compared

to $104.55).  In these circumstances, it is not appropriate

to order the Employer to provide an extra day off or an

additional day's pay to an employee scheduled to work a

holiday but who is given the day off.

 

            On the issue of holiday staffing by seniority, the

Employer introduced substantial evidence at the hearing that

it would be dysfunctional to the Sheriff's department to

staff holidays based on employee seniority.  The Employer's

proposed language on scheduling (Employer brief, page 32) is

reasonable and consistent with the provisions for staffing

already set forth and agreed to by the parties in Article 7,

Section 7.1.

 

            Thus, in view of the foregoing discussion, I find it is

appropriate to order that the following language to be added

to the parties Agreement:

 

5.3 When a holiday occurs on an

employee's scheduled work day,

staffing needs will be determined

by the Sheriff based upon the man-

power needs, experience and abil-

ity.  After the Sheriff determines

manpower needs, then preference for

staffing those needs on the holiday

may be exercised by qualified

senior deputies, using the staffing

guidelines set forth in Article 7.1

of this Agreement.  In this event,

those deputies not working the

holiday shall receive the holiday

off with pay and the employees

working the holiday will receive

premium pay for the holiday worked

as set forth in Section 5.1

 

            Uniforms And Uniform Equipment List

 

The parties are in agreement that the prior uniform

allowance system is in need of change.  Both parties have

proposed numerous changes to the former system.  The Union

proposes that new employees be given two complete uniforms

and equipment.  Each year thereafter, employees will be paid

$200.00 to cover the cost of cleaning such uniforms.

Further, the Union proposes that each employee will be

entitled to receive an additional $200.00 each year for

purchase of uniform and equipment items.  The Union also

wants to retain a procedure whereby the Employer would

replace uniform and equipment items on a fair wear and tear

basis.  The Union proposes an additional $300.000 purchase

allowance for detectives and other officers required to wear

special apparel.  Finally, the Union seeks to retain the

joint uniforms and equipment committee and to limit the

uniform and equipment items that must be returned to the

Employer upon termination to those purchased within the

preceding twelve months.

 

            The Employer has proposed that new hires be furnished

with the uniforms and equipment set forth in the equipment

list.  Each year thereafter, employees will be entitled to

reimbursement for up to $350.00 for purchase of uniform and

equipment items, cleaning and maintenance.  The Employer

seeks to abolish the joint uniforms and equipment committee

and to require that all uniforms and equipment purchased by

the Employer be returned to the Employer upon termination.

The Employer agrees to bear the burden of proof on this

issue.  In its brief, the Employer has also suggested an

alternative proposal to that already set forth in Employer

Exhibit No. 73 (position of Cowlitz County Re: Uniforms)

should it be found that the provision would benefit from an

entire rewrite.

 

            After a careful review of the evidence and the briefs

of the parties, it is my understanding that the parties are

generally in agreement as to the following items:

 

Returns.  In the event a probationary

employee is not retained beyond the

probationary period, all uniforms and

equipment shall be returned to the

County.

 

Non-Cumulative Allowances. Accounts

shall not be cumulative from year to

year.

 

Bulletproof vests. Bulletproof vests

shall be issued and replaced on an as

needed" basis when approved by the

Sheriff and such issue and/or replace-

ment shall not be charged to the

allowance provided by this Article.

 

Uniforms and Equipment Damaged In The

Line of Duty.  Items damaged in the

line of duty outside of reasonable wear

and tear will be replaced by the

County. Such items shall not be

charged to the allowance provided by

this Article.

 

Non-Abuse.  Employees agree to maintain

all clothing, uniforms and equipment in

good condition and not subject such

items to abuse.

 

 

            On the remaining items in dispute, I have determined

for the following reasons, to adopt the Employer's approach

with certain modifications.  First, it is apparent that the

present uniform allowance procedure has been difficult to

administer.  The evidence indicates that the Union has been

unhappy with the Employer's administration of the fair wear

and tear policy.  The Employer has proposed a simpler system

which will give each employee a set uniform allowance each

year which can be spent as the employee chooses to purchase,

clean and maintain uniform and equipment items.  Such system

would eliminate the fair wear provision, but a review of the

comparators shows that those comparators that provide a

straight dollar allowance do not also provide for replace-

ment of uniform and equipment items on the basis of fair

wear.

 

            The evidence presented indicates that the $350 proposed

by the Employer is a sufficient amount to adequately provide

for the uniform and equipment needs of employees.  In this

regard, I note that the actual cost to the Employer to

provide all uniforms, equipment and cleaning to bargaining

unit members was an annual average of $220.35 in 1985 and

$168.33 in 1986 per employee.

 

            The Employer also seeks to eliminate certain items from

the Uniform and Equipment List.  However, as was noted

above, the Employer has been able to provide on average all

of the items on the list to new employees and needed re-

placement items for all employees for significantly less

than the allowance it is proposing.  Thus, I find no justi-

fication for reducing the Uniform and Equipment List as

suggested by the Employer.

 

            On the issue of allowances for detectives and other

employees required to wear special apparel, the Union wants

a $300 purchase allowance.  The Employer proposes that the

$350 uniform allowance may also be used by detectives for

cleaning plainclothes.  The Employer's proposal provides for

the replacement of items damaged in the line of duty appar-

ently for detectives as well as other employees.  Although a

review of the evidence presented does not support providing

detectives with an allowance beyond that provided uniformed

officers, it does support making such allowance available to

detectives and others required to wear special apparel.

Therefore, I shall order that these employees receive the

same annual allowance as uniformed officers which may be

used for purchase, repair and cleaning of clothing and

equipment.

 

            Both parties are agreed that upon termination,

employees should be required to return uniform and equipment

items to the Employer.  The Union, however, proposes

limiting such return to those items purchased within the

twelve months prior to termination.  The evidence indicates

that every comparator requires its employees to return uni-

forms and equipment at the time of termination.  The twelve

month limitation proposed by the Union would permit the

Employer to recover only a small portion of the uniform and

equipment items provided and is not supported by any sub-

stantial justification.  Therefore, I find it appropriate to

order that employees be required upon termination to return

to the Employer uniform and equipment items provided by the

Employer.  I will not however, make the application of this

section retroactive.  Thus, the requirement to return uni-

form and equipment items applies only to those items

acquired pursuant to this Article of the Agreement effective

January 1, 1987.

 

            During discussions with the other members of the Arbi-

tration panel, it became apparent that neither the Union nor

the Employer proposal made adequate provision for the

cleaning of uniform and equipment items provided to first

year employees.  Further, neither proposal specifically

addressed how to implement a new uniform allowance system so

as to insure that all employees will receive the benefits of

such new system in 1987.

 

            The Employer's alternate proposal set forth in its

brief does recognize that by eliminating the Employer

provided cleaning service, first year employees would not be

compensated for uniform cleaning costs.  To remedy this

problem, the Employer proposes awarding first year employees

a reduced uniform and equipment allowance to be used for

cleaning only.  The Employer suggests that $156 per year up

to a maximum of $13 per month is an appropriate amount.  The

evidence indicates that the average cost to the Employer to

provide cleaning for each employee has been $107 per year.

The Employer's increased cleaning allowance may constitute a

recognition that first year employees may have higher

cleaning costs as a result of having fewer uniform changes.

In view of the foregoing, I will order that first year

employees be allocated up to $156 for cleaning.  I will not

order such reimbursement limited to $13 per month since to

do so would place an unwarranted restriction on an

employee's ability to be reimbursed for actual cleaning

costs incurred.

 

            Based on my discussion with the other members of the

Arbitration panel, I also find that it is reasonable to

implement the uniform and equipment allowance provisions in

such a manner so as to insure that employees will receive

the benefit of such provisions during 1987.  In drafting

such a system, I have attempted to incorporate the very

helpful suggestions of both panel members on this issue.

 

            Finally, I think it is clear that when new contract

provisions are implemented, issues may arise which were not

anticipated.  Here it would seem particularly appropriate to

continue the joint uniform and equipment committee as a

means to joint resolution of any problems which may develop

regarding the new system embodied in my Award.  Therefore, I

will order that the joint committee provisions be retained.

 

            Based on the foregoing discussion, I find it appro-

priate to order the following provisions be incorporated

into the parties' Agreement:

 

Article 9 Uniforms and Equipment

 

9.1       Effective January 1, 1987, for any

            newly hired commissioned officer,

            the County shall furnish two (2)

            complete uniforms and equipment

            listed in Appendix A of this Agree-

            ment.  During such employee's first

            year of employment, he shall be

            entitled to receive reimbursement

            for up to $156 for the cleaning of

            such uniforms and equipment.

 

9.2       In the event a probationary

            employee is not retained beyond the

            probationary period, all uniforms

            and equipment shall be returned to

            the County.

 

9.3       Effective January 1, 1987, all

commissioned officers who have com-

pleted their first year of employ-

ment shall be entitled to receive,

during each calendar year, rein-

bursement for up to $350 for the

purchase, replacement, repair or

cleaning of uniforms (or plain-

clothes in the case of detectives

or others required to wear special

apparel) and equipment listed in

Appendix A to this Agreement.

Those commissioned officers who

complete their first year of

employment after January 1 of a

calendar year shall be allocated a

pro rata portion of this uniform

and equipment allowance based on

the number of scheduled work days

remaining in the calendar year.

 

9.4       The uniform and equipment allowance

            shall not be cumulative from year

            to year.

 

9.5       Reimbursement for the purchase,

            repair or cleaning of uniforms (or

            plainclothes in the case of

            detectives or others required to

            wear special apparel) and

            equipment shall be processed using

            forms approved by the Sheriff.

            Employees may purchase items or

            obtain cleaning services from the

            vendor of their choice and have

            the vendor submit invoices to pur-

            chasing for direct payment to the

            vendor (if the vendor allows it) or

            pay the vendor for purchase or

            service and submit a receipt to

            purchasing for reimbursement until

            the uniform and equipment allowance

            is exhausted.

 

9.6       Items damaged in the line of duty

            outside of reasonable wear and tear

            will be replaced by the County.

            Such items shall not be charged

            against the employee's uniform and

            equipment allowance.

 

9.7       Employees agree to maintain all

            clothing, uniforms and equipment in

            good condition and not subject such

            items to abuse.

 

 

9.8       Bulletproof vests shall be issued

            and replaced on an "as needed"

            basis when approved by the Sheriff.

            Such issue and/or replacement shall

            not be charged against the

            employee's uniform and equipment

            allowance.

 

9.9       In the event of a dispute concerned

            with methods, problems place of

            purchase, or items of purchase, a

            committee composed of two members

            appointed by the Union, and two

            members appointed by the Employer

            shall meet and confer and make

            appropriate recommendations to the

            Sheriff.

 

9.10     At time of termination, all uni-

            forms and equipment purchased

            after January 1, 1987 pursuant

            to the terms of this Article,

            shall be returned to the County.

            The burden of proof shall be on the

            County.

 

 

APPENDIX A

 

Uniform and Equipment List

 

3          pair pants (wash and wear)

3          long sleeve shirts (wash and wear)

3          short sleeve shirts (wash and wear)

1          dress hat and hat cover

1          wash and wear jumpsuit (K-9 handlers wear a better quality

            jumpsuit and normally have three)

1          coat (short tuffy jacket or long sportscaster)

1          tie

1          winter cap

1          baseball cap (for S.A.R.)

22        shoulder patches

2          badge patches (4 for K-9 handlers)

1          bullet proof vest

1          hat badge

1          shirt badge

1          set brass buttons

1          set C.C.S. collar insignia

2          name plates

1          I.D. case

1          pair shoes or boots

1          dress belt (basketweave)

1          gun belt (basketweave)

4          belt keepers (basketweave)

1          cuff case (basketweave)

1          set speedloaders and case (basketweave)

1          key holder (basketweave)

1          uniform holster (basketweave)

1          concealable holster (pancake style)

1          baton ring (basketweave)

1          flashlight ring (basketweave)

1          buck knife and case (basketweave)

1          baton

1          Kell light (5 or 6 cell)

1          pair handcuffs

1          clipboard

1          pair uniform gloves

 

            Retroactivity

 

            The interest arbitration statute requires that the

constitutional authority of the employer be considered in

arriving at a decision.  The Employer contends that certain

provisions of the Washington State Constitution make any

retroactive award of wages and benefits an unconstitutional

gift of the Employer's resources.  The Employer maintains

that a retroactive award is only permissible if there was a

prior agreement between the parties in which such retro-

active application of a future award was agreed upon.

According to the Employer it has entered into no such agree-

ment here, accordingly, any award can be effective only from

the date of issuance of this Opinion and Award.

 

            I have carefully considered the Employer's contention

and for the following reasons conclude that a retroactive

award of wages and benefits is not precluded in this case.

I note that the case predominately relied upon by the

Employer, Christie v. The port of Olympia, 27 Wn.2d 534

(1947) was decided many years prior to the passage of the

public employee collective bargaining laws.  Thus, Christie

does not address the integrated statutory scheme established

by the Legislature.  This statutory scheme specifically

provides in RCW 41.56.950 for the retroactive application of

collectively bargained wages and other benefits for the

period of time between the expiration of a collective

bargaining agreement and the execution of a successor agree-

ment.  It is also clear that to the extent Chapter 41.56 RCW

permits the Employer to agree to retroactive compensation,

it also permits an interest arbitration panel to award such

retroactive benefits as part of the balancing of interests

accomplished by the statute.

 

            Additionally, since the time of the court's decision in

Christie and the Opinion of Attorney General's Office inter-

preting that decision cited by the Employer, AGO 1974 No.

19, the court has seriously questioned its prior decisions

interpreting the constitutional provisions relied upon here.

See, City of Marysville v. State, 101 Wn.2d 50 (1984).where

the court upheld a public entity's payments to the state

retirement system pursuant to RCW 41.40.160(2) for service

credit earned by employees before their private employer was

purchased by the public entity as not constituting gifts of

public funds to a private party prohibited by Article VIII,

Section 7 of the State Constitution.  In view of the fore-

going, and recognizing the principle that enactments of the

legislature are entitled to a strong presumption of consti-

tutionality, I do not find my Award to be in violation of

either Article II, Section 25 or Article VIII, Section 7 of

the State Constitution.

 

 

FOOTNOTES TO 1986 WAGES AND BENEFITS CHART

 

            1.         The Employer's 1986 salary figure for Grays Harbor

is $1961.  However, the applicable agreement provides that

beginning January 1, 1986, each employee will receive a lump

sum payment equal to his or her annual base salary times 80% of

the increase in the Seattle-Everett CPI-U for the previous

year ending November.  This equals $348.20 on an annual

basis and $29 on a monthly basis.  Thus, I have used a

figure of $1990 to reflect the value of the lump sum payment

for 1986, however, the actual base salary for 1986 does not

increase.

 

            2.         The Employer's longevity figure for Lewis is $385.

The Lewis County agreement clearly provides for payment of

$5.00 per month for each year of service.  Based on 20 years

of service, $100.00 is used to reflect a more accurate

maximum longevity figure.

 

            3.         The Employer's 1986 salary for Skagit is $2304,

however, the amount reported by the Employer for Skagit in

1987 is only $2226.  The Skagit County agreement indicates

that employees are to receive a raise of 3.25% for 1986

based on the salary shown in the salary schedule.  It

is unclear whether deputies are to be paid according to

Salary Range 11 or Salary Range 12.  Because the information

about the comparables was provided by the Employer, doubts

as to the accuracy of such information should be resolved in

favor of the Union.  Thus, I have chosen to use Salary Range

12 which is 2010.39.  2010.39 x 1.0325   2075.73.  In addi-

tion, I have included the $152.50 per month merit pay

reported by the Employer to arrive at a total monthly wage

of $2228.

 

            4.         The Employer's 1986 salary figure for Douglas on

Exhibit No. 26 is $1854.  The Employer's questionnaire

completed by Douglas indicates the 1986 salary to be $2045.

 

            5.         The Employer lists a separate educational premium

of $191 for a deputy with advanced certification.  However,

the salary schedule in the collective bargaining agreement

appears to include such premium as a part of the base salary.

 

            6.         Calculation of the pension pick up is based on the

salary revision above, i.e. 6% of $2045.

 

            7.         The collective bargaining agreement for Josephine

expired June 30, 1985.  The Employer's questionnaire mdi-

cates that the parties are still negotiating a successor

agreement.  To the extent there could be a retroactive

application of agreed wage and benefit amounts, it would be

inappropriate to use the 1985 figures to reflect 1986 wages

and benefits.

 

            8.         The Employer lists no pension pick up for Kings

County, however, Article 17 - Retirement clearly indicates

that Kings County shall contribute 5.5% of the employee's

contribution.

 

            9-10.    Although the agreements for both Madera and

Mendocino expired in 1985, the salary figures reported by

the Employer for 1986 do reflect an increase over the 1985

salary figures.  Thus, although the figures cannot be inde-

pendently verified, there is no indication they are in

error.

 

FOOTNOTES FOR 1987 WAGES AND BENEFITS CHART

 

            1.         The Employer's 1987 salary figure for Grays Harbor

is $1990.  As indicated in footnote No. 1 to the 1986 Wage

and Benefit Chart, the base salary in 1985 was $1961.  It

did not increase in 1986.  However, employees in 1986 did

receive a lump sum payment equal to their base annual salary

times 80% of the previous year's increase in the appropriate

CPI index.  For 1987 that amount was $111.05.  On a monthly

basis this reflects an additional $9.25 per month.  Thus, the

salary figure of $1970 ($1961 + $9) is used to reflect the

value of the lump sum payment.

 

            2.         The salary used reflects the corrections indicated

in Footnote 3 to the 1986 Wage and Benefit Chart and the

3.5% increase in base salary provided in the Skagit County

agreement in 1987.

 

            3.         Salary used reflects the average of the Employer

figures to more accurately represent the average monthly

salary for 1987.  pension pick up amounts reflect these

adjusted salary figures.

 

            4.         Same as above.

 

            5.         Same as above.

 

            6.         Although the Resolution setting forth the terms of

employment for El Dorado County expired December 31, 1986,

the questionnaire provided by the Employer and answered by

El Dorado County indicates that no salary increase is

scheduled for 1987, nor does the questionnaire indicate that

there are any ongoing negotiations regarding salary.  Thus,

it is appropriate to consider El Dorado in calculating 1987

wages for the comparators.

 

                                    AWARD OF YOUR CHAIRMAN

 

            It is the Award of your Chairman that:

 

            A.        There shall be no wage increase for bargaining unit

            employees in 1986.

 

      B.        There shall be a 4.2% wage increase effective

                  January 1, 1987 for all bargaining unit employees.

                  This increase shall be applied to the base salary

                  earned by employees after computing the 6.7% in-

                  crease received effective January 1, 1987.

 

            C.        There shall be no change in the Step Advancement                                               

                        language from that contained in the prior

                        collective bargaining agreement.

 

            D.        There shall be added to the Agreement a new pro-

                        vision on holidays which shall read as set forth

                        at page 25 of the attached opinion.

 

            E.         There shall be substituted for the provision in

                        the prior Agreement, a new provision on Uniforms

                        and Equipment as set forth beginning at page

                        32 of the attached Opinion.

 

Seattle, Washington

 

April 7, 1987  

                                                                        Michael H. Beck, Arbitrator

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.